JUDGMENT [ENTITY], J.
1. This is a Letters Patent Appeal from the judgment of the Hon'ble Single Bench, in [CASE NUMBER], dismissing the present appellant's petition, under [SECTION] and [SECTION] of the [ACT] for the issue of a writ of certiorari, and under supervisory jurisdiction, questioning the award of the Industrial Tribunal, [ENTITY], dated 23-10-1956, in the dispute between the appellant, and respondents 3 and 4.
2. The crux of the application before the Single Bench was, (i) that the Tribunal had not been properly constituted; (ii) that in any case, it was bound to take the assistance of assessors; and (iii) that it was incompetent to deal with and decide by award the dispute regarding minimum wage, separately from the two other items of dispute mentioned in the reference. It was also averred that the petitioner-appellant was not estopped from raising these questions on account of its failure to raise them at the commencement of the proceedings before the Tribunal; this last, however, having been accepted by the Single Bench, need not be gone into any further. The issue in fact is one of substance of the contentions and not of estoppel.
3. On all the three points mentioned above, the Single Bench held against the petitioner-appellant and accordingly refused to interfere. Hence the present Letters Patent Appeal.
4. The following facts are common ground : The petitioner is a Joint Stock Textile Company working at [ENTITY] and the contesting opposite parties are unions of the employees. In October 1955, the parties approached the Government with an agreement formulating certain disputes and requesting the Government "to appoint a tribunal with the assistance of assessors to adjudicate on these points". The Government for its part, acting under [SECTION] of the [ACT] (as it stood before the amendments of 1956) made a reference to a one-man Tribunal by the notification dated the 25th January 1956 to which was annexed particulars of the dispute 'according to the parties', and in their ipsissima verba.
The appropriate Government could not in those days (before the enactment of the new [SECTION]) appoint assessors. So the reference mentioned "will the help of an assessor, if found necessary by the Tribunal."
5. The parties appeared in February, written statements were filed in May, and the hearing was started. To begin with, the Tribunal split up the controversy under three different headings, numbered three different disputes one covering the first paragraph of the annexure; the second, the demand for the revision of minimum wages, this being the first part of paragraph 2 of the annexure; and the third, the standardization of wage rates, this being the latter part of paragraph 2.
Thereupon the Tribunal proceeded to deal with each of the disputes separately, taking up, at the first instance, the dispute regarding the minimum wages, without an assessor. In regard to the two other disputes, there was a joint petition for assessors, but at the time of the award in regard to minimum wages, these proceedings remained pending.
The petitioner-appellant filed written-statement and assisted in the framing of issues, all this without any objection to the procedure adopted in the splitting up of the reference and in the taking up of the present one before the other. Nor was there any prayer that whatever the order in which the separate disputes were considered, the award should be given simultaneously or that the award given in any of the three now separate disputes, should not be implemented before the pronouncement of the awards in the two others.
6. Since the prayer for the revision of minimum wages was made by the employees, they led the evidence and closed it by the beginning of September. Now, for the first time, certain objections were made in a petition dated 5th September which the Tribunal rejected by an order of the same date (printed at page 62 of the paper-book). Thereupon the petitioner-appellant led his evidence. The hearing was completed and the award on the dispute regarding minimum wages was made on 23rd October, 1956. The application under [SECTION] and [SECTION] was filed in this Court on 22nd November, 1956.
7. Before us, as before the Single Bench, the grounds noted in the beginning have been elaborately presented. One more ground, though not formulated in so many words, has also been canvassed by the petitioner-appellant, namely, that the Tribunal has erred, on the one hand, in considering-not the minimum wage but what it has called a "subsistence wage" and on the other, in importing in, its consideration the level of the minimum or subsistence wages prevailing at that time at [ENTITY], [ENTITY] and [ENTITY], which was really a matter foreign to the question it had to answer.
8. On the constitution of the Tribunal, a twofold attack has been made. The Government should have ordered the association of assessors or the Tribunal itself should have appointed one or more assessors in exercise of its powers under [SECTION]. The argument is that a reference under [SECTION], unlike a reference under [SECTION], has to be in accordance with the application of the parties, whether it is joint as in the present case, or separate as it can conceivably be. Since the parties wanted adjudication with the help of assessors, a Tribunal constituted without them was coram non judice.
No doubt, a reference under Sub-section (2) should be in accordance with the parties' petition or agreement; but that does not mean that the appropriate Government should try to do, what under the law as it then stood, it could not do. It could implement the wishes of the parties, as far as it was legally possible to do, and that the appropriate Government had done. There is nothing mysterious about the assistance of the assessors. They are expected to bring specialized knowledge and experience, which may not be otherwise available to the Tribunal, and which it still feels necessary.
At all events, such experience or knowledge can be made available, either by the Tribunal itself appointing the assessors, or the parties examining suitable expert witnesses. Anyway, when the statute left it to the Tribunal itself, "if it considered fit to appoint the assessors with the consent of the parties", it was not possible for the Government to compel the Tribunal to take the assistance of assessors. In that context, all that the mention of assessors in the agreement could legally mean was that in the event of the Tribunal considering it fit to appoint them, neither party could demur having, in fact, consented to this in the agreement.
9. The second part of the argument is that the parties having in their agreement mentioned the assistance of assessors, it was the duty of the Tribunal to appoint "one or more assessors" in the manner mentioned in [SECTION]. This argument, as it were, reads that provision backwards and is, therefore, fallacious. If the Tribunal considers it fit, then it can appoint one or more assessors (and as the law then stood) on the condition that the parties themselves consented to it.
However, it does not mean that if both the parties wanted one or more assessors the Tribunal should appoint them. That in any event was as the Tribunal would consider fit. In the present case, there was not even a request to the Tribunal at the commencement of the proceedings to appoint assessors for this dispute though, it seems, there was such a request in regard to the two others. At a late stage after the employees had concluded their evidence, something like a request for assessors was made which, considering the stage, the Tribunal in my opinion very properly rejected.
10. Another part of the same argument is made by Shri [ENTITY] appearing for the petitioner-appellant. If it was not possible under the statute to appoint assessors to assist the Tribunal, there was nothing to prevent the appropriate Government from appointing a three-man Tribunal including two experts who would, otherwise, have been assessors. Certainly, it was not impossible; but the functions of the members of a Tribunal are different from those of assessors, and the Government itself could not thrust upon the parties a Tribunal which they did not want. In these circumstances, the Government left the appointment of the assessors to the discretion of the Tribunal. Therefore, the Tribunal was properly appointed.
11. Once, the Tribunal is properly appointed, it was open to it to follow such procedure as it considered fit, subject to the statutory rules, if any, and certainly, in accordance with reasonableness and fair play. It is now emphatically argued on behalf of the petitioner-appellant, that from the time of the agreement, the parties had intended that all the differences should be treated as one dispute, to be decided by one award implemented as a whole.
The idea seems to be that it was a question of give and take and, in any view of the matter, the three headings of the dispute were so closely interrelated that it was unfair to have dealt with them piecemeal. I find, neither generally in agreement, nor in the annexure to the reference which is a quotation describing the difference, any indication that it was intended that the whole should be treated and disposed of as one dispute. Three different disputes are mentioned, and Government is requested to appoint a Tribunal and make a reference.
Nor is there any indication that interlinked or separate as the dispute might be, the awards on them should be implemented simultaneously. Nor was there any petition filed after the splitting of the reference to this effect. Thus, the splitting up of the three disputes, which was certainly for clarity and convenience, was within the competence of the Tribunal.
12. It is also not possible to accept the contention that all the three disputes are interlinked. To some extent, the disputes regarding the employer's scheme for "the revision of work load and re-deployment of the labour" on the one hand, and "the standardization of the wage rates" on the other, may entail each other. In fact, the former can be described as rationalization and the latter, the framing of work norms for each category in the rationalized industrial units. But the minimum wage is something unconnected with either and depends upon the physical and social needs of the labourer, altogether independently of the nature and other incidents of the work that he is actually doing.
13. By stating that it was a give and take, on the one hand, the labourers getting a revised minimum wage and on the other, the employer bringing into force his new scheme, the petitioner-appellant has tried to paint an over-simplified and definitely unreal picture. The concept of a minimum wage is something independent of the nature of the work and the standardization of the wage. In fact, what is called a minimum wage is a bunch of several concepts crystallizing out of the investigation of those specialized in this line, and getting judicial approval in [PRECEDENT] and more fully in [PRECEDENT].
At the lowest, there is what, in earlier rulings and in the literature on the subject, had been described as subsistence wage or "basic minimum wage", or that which is absolutely necessary to keep the labourer's body and soul together. Then there is the minimum wage generally so called, which is the bare minimum plus minimum provision for such essential requirements as education, medicine and amenities and for the more important risks and eventualities. Slightly higher still, there is the level of decent minimum wage to which at least in theory, that of the fair minimum wage should ultimately rise.
The legal or statutory minimum wage, if and when prescribed, may lie between the 'bare minimum' or the 'decent minimum' but it will be based on the considerations taken into account by the Legislature. The differences between these different levels are due to the inclusion or non-inclusion of certain provisions, but all these concepts loosely described as the minimum wage, are independent of any scheme of rationalization, or of the nature, of resulting strain, and risk of the actual employment. I Thus, it cannot be argued that by deciding the dispute in regard to the minimum wage, the Tribunal has forestalled the fair decisions of the two other disputes.
14. No doubt, the petitioner-appellant feels that an award which conceded part or whole of the Other parties" demand in one dispute, had lowered his bargaining strength in regard to the other disputes which are still open. Whether or not this is the true position, the petitioner-appellant acquiesced in a particular procedure which the tribunal was competent to follow. Once, the disputes were split up, it was inevitable that one of them would be disposed of before the others in the absence of an order that the awards would be simultaneous. Whether or not the Tribunal would have granted a prayer to that effect, here the petitioner himself did not at the appropriate stage invite the Tribunal to do so.
He acquiesced both, in the splitting up and in the taking up for consideration of the minimum wage. It was only at a much later stage after the other party had finished its evidence, that the petitioner felt that there was going to be some inconvenience and filed the petition of 5-9-1956. Things had progressed and the Tribunal very propetrly in my opinion refused to start once again. It has also given good reasons why this particular dispute was being dealt with separately. It is not a case of estoppel; it is a question of correctness of the procedure of the Tribunal.
15. We are not directly concerned with the merits of the decision of the Tribunal in regard to the minimum wage; but it has been urged in argument that the Tribunal misguided itself as to the real contents of the minimum wage and also took into account a consideration foreign to it that is, the minimum wage level at [ENTITY], [ENTITY] and [ENTITY].
16. A break up of any minimum wage as fixed by different Tribunals would necessarily include a large number of items, most of them as would properly be part of a bare minimum or subsistence wage, would be common. But the additional items may vary, though the recent decisions of the Supreme Court in [PRECEDENT] and more particularly, in [PRECEDENT] contain guiding principles that will lead to considerable uniformity.
As already noted, the line may be any where between two parallel levels, according this or that provision over the bare minimum is included or omitted by the Tribunal. But this is inevitable in a matter like the present one. This, by itself, would not call for interference in exercise of the powers to issue a writ of certiorari as it would be a question of fact to be decided by the Tribunal itself. As far as this Court is concerned, the test is, whether or not the Tribunal has set out to fix what has been described as the minimum wage as generally understood. A perusal of the award will show that it has.
17. Certainly, in the assessment of a proper minimum wage for [ENTITY], the wage level at other places is not directly relevant. In fact, the Tribunal itself has, independently of the consideration of the [ENTITY]-[ENTITY] level, come to the conclusion that the minimum wage level laid down in 1948 by the then [ENTITY] Government, has during the several years, become inadequate and unrelated to the situation in 1955. It has based this on data relating to [ENTITY], including those collected and reported to the Labour Ministry of the Union.
Had the Tribunal been guided by these data alone, it might have raised the minimum wage from Rs. 26/- P.M. (fixed in 1947), not merely to Rs. 30/-P.M. as it has done now, but to anything near Rs. 45/- P.M. Having decided that a rise was justified and being unwilling to raise it to the level that would be demanded by the data collected by the Labour Ministry, the Tribunal took a via media. The data with reference to [ENTITY] and [ENTITY] were more ample, especially, on the side of index numbers, than those relating to [ENTITY].
The Tribunal did not like to go further beyond, say Bombay or to Ahmedabad, where, of course, the conditions were very much different. By applying an analogy with [ENTITY], [ENTITY] and [ENTITY], and limiting the new minimum wage level to the one prevailing at these places, the Tribunal was, if anything, softening the shock that was likely to fall on the employer if it had been guided only by the available data relating to [ENTITY]. It is not as if the Tribunal has said "the minimum wage at [ENTITY] and. [ENTITY] is Rs. 30/- a month; so there is no excuse why it should be Rs. 26/- a month at Bhopai; and I am therefore raising it to Rs. 30/-."
On the contrary, it holds "there is a justification from the data available in regard to [ENTITY] for an increase in the minimum wage level. The best data are those collected by the Labour Ministry and they indicate a minimum requirement of Rs. 87/- per month per worker family and the present wage level of Rs. 26/- P.M. plus Rs. 42/- P.M. dearness allowance, comes only to Rs. 68/- P.M. Instead of jumping from Rs. 26/- P.M. to Rs. 45/- P.M. to give a total of Rs. 87/- (including the dearness allowance), I moderate the pace. Just for that purpose, I am guided by the minimum wage level at [ENTITY], [ENTITY]. and [ENTITY]". Certainly, this cannot be the employer's grievance.
18. Generally speaking a writ of certiorari would be issued only in the event of a flagrant violation of Jaw and consequent grave miscarriage of justice. This principle applies particularly to industrial tribunals which exercise functions relating to welfare and industrial harmony, in accordance with the doctrines, which are themselves in a constant flux and cannot be expressed in the form of cast iron formulae, such as are found in the [ACT]. That is why the Federal Court in [PRECEDENT], has said :
"Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the tribunal may contain provisions for settlement of a dispute which no-Court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations."
The same has been more forcefully brought out in [PRECEDENT] :
"The Adjudication by the Tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry, and is by no means analogous to what an arbitrator has to do in determining ordinary Civil disputes according to the legal rights of the parties.
19. In the result, I find that the Tribunal was properly appointed and followed a procedure, which it was competent to follow and which was essentially correct and convenient. The petitioner-appellant acquiesced in the splitting up of the reference into three disputes and the earlier disposal of the independent and unconnected one regarding minimum wages. At a very late stage, he made certain objections which the Tribunal properly disallowed. There has been no irregularity or consequent miscarriage of justice.
20. The judgment of the Hon'ble Single Bench is upheld and the Letters Patent Appeal is dismissed. Costs payable by the appellant to the contesting respondents Nos. 3 and 4. Pleaders fee to be taxed at Rs. 100/-.
[ENTITY], J.
21. I agree that this appeal should be dismissed with costs of the respondents Nos. 3 and 4-. My learned brother has shown how the absence of assessors to advise the tribunal and the course adopted by the tribunal in deciding the dispute about minimum wages separately from other disputes do not afford any ground for an order of certiorari to bring up and quash the decision of the Tribunal on the grounds that the Tribunal was not validly constituted or that its decision was without jurisdiction or in excess of it. I do not wish to add anything on that aspect of the case.
I propose to add some observations in regard to the contention of the appellant that the decision of the Tribunal was bad on the face of it inasmuch as the Tribunal misunderstood the concept of mini-mum wages and in fixing it took into consideration the level of the minimum wages prevailing at the material time at [ENTITY], [ENTITY] and [ENTITY] which was not 'relevant to the question of the fixation of minimum wages at [ENTITY].
22. I think the Tribunal was right in the concept it entertained of 'minimum wages' while fixing them. It is in no way different from that pointed out by the Supreme Court in [PRECEDENT]. or that contemplated by the parties themselves when they approached the Government with an agreement for the reference of the dispute about mini-mum wages to the Tribunal. The Supreme Court pointed out in [PRECEDENT] that a bare subsistence or a minimum wage is that which would be sufficient to cover the bare physical needs of a worker and his family, that is, a rate which has got to be paid to the worker irrespective of the capacity of the industry to pay and that if an industry is unable to pay to its workman at least a bare minimum wage, it has no right to exist.
The minimum wage principle is thus based on ethical considerations and not on any economic ground. It has no reference either to the value of the work done by the worker or to the capacity of the industry to pay. It is a bed-rock minimum which must be paid in any case to the worker and if a particular industry is unable to pay it it must shut) down. It has to be determined on the cost of living and the normal or reasonable needs of the worker and his family on the bare subsistence level.
The appellant company themselves stated in their additional written statement (page 69 of the Paper-Book) that the minimum wage fixation depended on cost of living, present earnings of the workman, relative wage level in the area, and the change in the local circumstances adversely affecting the economic life of the workman of the area concerned. The observations made by the Tribunal in Para 9 of the award plainly show that all these considerations were borne in mind by the Tribunal when it revised the minimum wage. It observed "The necessity for an increase in the minimum wage is to be considered independently of any consideration regarding the work-load . . Every industrial concern has to pay to its worker at least as much as is sufficient to maintain him and his family in a fit state of efficiency and the term maintenance does not only include the bare necessities of life but also a minimum provision for such essential requirements as education, medicine and amenities. In this connection the capacity of the industry to pay is not to be considered so much as minimum requirements of the worker arc; if the industry is unable to meet them, it has no right to exist, however, great the financial burden it might put on the industry,"
23. The Tribunal then on the material before it came to the conclusion that the living conditions in [ENTITY] in 1956 had worsened since 1940 and thus the estimated expenditure of a worker's family consisting of five units was Rs. 86-15-2 that therefore, the present total emoluments of the lowest paid worker were Rs. 67-12-3 (Rs.26/- minimum wage plus D. A. of Rs. 41-12-3) and this was far short of the minimum requirements of a worker and his family and that an increase in the minimum: wage was necessary.
Having come to this conclusion the Tribunal then proceeded to determine the extent of increase in the prevailing basic wage, and for that purpose it took into consideration the wage level prevailing at [ENTITY], [ENTITY] and [ENTITY] and determined that the minimum wage in the appellant Company should be Rs. 30/- P.M. The wage level prevailing at other places was no doubt altogether foreign to the fixation of minimum wage level at [ENTITY]. For the minimum wage principle, based as it is primarily on the cost of living, necessarily involves different wages in different places.
The minimum wage levels prevalent at other places which weighed with the Tribunal in fixing the minimum wage at [ENTITY] were not relevant. But it cannot be maintained that because of these in valid considerations the Tribunal's conclusion is vitiated in law or is otherwise unsound. Actually the Tribunal fixed the new minimum wage at a level lower than it would have otherwise fixed if it had not taken into consideration the wage level prevailing at [ENTITY], [ENTITY] and [ENTITY]. The appellant Company cannot, therefore, have any cause for complaint against the minimum wage fixed by the Tribunal.