IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 OP.No. 35432 of 2001(R) --------------------------------- PETITIONER(S): ---------------------- 1. KERALA PLANTATION WORKERS, FEDERATION (A.I.T.U.C.), A.I.T.U.C. HEAD OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL SECRETARY. 2. HIGH RANGE ESTATES LABOUR UNION (A.I.T.U.C.) REG. NO.103/65. A.I.T.U.C. HEAD OFFICE, PEERMADE, REPRESENTED BY ITS GENERAL SECRETARY. BY ADV. MR.P.RAMAKRISHNAN SMT.A.K.PREETHA RESPONDENT(S): ------------------------- 1. UNION OF INDI, REPRESENTED BY SECRETARY MINISRY OF LABOUR, NEW DELHI. 2. STATE OF KERALA, REPRESENTD BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR AND REHABILITATION, THIRUVANANTHAPURAM. R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI R1 BY ADV. MR.S.KRISHNAMOORTHY, ADDL. CGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/02/2009, ALONG WITH OP. NO.37167 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 35432/2001-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 20/09/1997 OF LABOUR COMMISSIONER, TRIVANDRUM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ (“CR”) P.R.RAMACHANDRA MENON, J. ====================== O.P. Nos.35432 and 37167 of 2001 ====================== Dated, this the 25th day of February, 2009 J U D G M E N T Constitutional validity of Section 2(k)(ii) of the Plantation Labour Act, 1951, (hereinafter referred to as the “Act”) fixing the ceiling of the monthly wages as Rs.750/- so as to make a 'worker' eligible to claim the benefits under the Act has been subjected to challenge in these original petitions; particularly in view of the change in circumstances, when the minimum wages payable to the workers have been increased several times as per the notifications issued by the appropriate Government at different points of time, under the relevant provisions of law. 2. The petitioners are the different Trade Unions O.P. Nos.35432 and 37167 of 2001 2 registered under the Trade Unions Act, representing the major work force in the plantations in the State of Kerala, which come within the purview of the Plantation Labour Act, 1951. It is contended that though the prescription of the ceiling of maximum wages under Section 2(k)(ii) was constitutionally valid at the time of enactment, it has become obsolete and unworkable and the matter requires to be considered in the light of the present perspective. 3. The respondents namely the Union of India and State of Kerala have filed separate counter affidavits in O.P.No.37167 of 2001. The crux of the contentions raised in their counter affidavits rather points to the necessity to have appropriate amendments to the statute. However, it is contended that this Court does not have the power or competency to compel the Government to enact the necessary legislation by way of amendment, in view of the law declared by the Apex Court in A.K.Roy v. Union of O.P. Nos.35432 and 37167 of 2001 3 India reported in 1982(1) SCC 271. The counter affidavit filed by the second respondent/State of Kerala is more or less in support of the factual position brought to light by the petitioners/Trade Unions, though towards the end, the State has requested to “dismiss” the original petitions with cost, which is rather self contradictory. 4. Coming to the limited question as to the sustainability of the restrictive clause incorporated under Section 2(k)(ii) in the background of the Constitution of India, it has to be noted that the Act was brought into existence to provide for various welfare measures to the workers and regulate the conditions of the work in plantations, which essentially are concerned with Tea, Coffee, Rubber, Cinchona, Cardamom etc. The Act is made applicable to the plantations admeasuring a minimum of 5 hectares and engaging 15 or more persons in the preceding twelve months, to have the coverage. As pointed out by O.P. Nos.35432 and 37167 of 2001 4 Ms.A.K.Preetha, the learned counsel for the petitioners, the Act is an exhaustive self-contained one, providing for the Health measures such as Drinking water, Conservancy, Medical facilities as enlisted under Chapter III, Welfare measures such as Housing facilities, etc. as provided under Chapter IV, Conditions of Service and limitations of employment such as weekly hours, weekly holidays, daily intervals for rest etc. as stipulated under Chapter V, Leave without wages including sickness and medical benefits as provided under Chapter VI and such other incidental provisions including Penalties in respect of the offences, if any, committed by the parties concerned. It is also pointed out by the learned counsel for the petitioners that ever since implementation of the above enactment, the workers who are entitled to get the benefit thereunder are taken outside purview of the several other welfare enactments like ESI Act. Referring to the grave consequences resulted because of the present minimum wages notified by the O.P. Nos.35432 and 37167 of 2001 5 Government as payable to the plantation workers, which has admittedly crossed the maximum ceiling of Rs.750/- per month prescribed under Section 2(k)(ii), it is pointed out by the learned counsel, that the very purpose of the enactment has been defeated, in so far as there is no plantation worker in Kerala and even in the entire Country, who is now having a salary of less than Rs.750/- per month, so as to avail the benefit provided under the Act. By virtue of the above anomalous situation, the workers for whose benefit the Act was brought about, are prevented from pursuing their rights and remedies under the relevant enactments, which govern the field in respect of the workers in other fields (like ESI Act); simultaneously disabling them from enjoying the benefits of the Act itself, they having been taken outside the purview of the term 'worker' by virtue of the ceiling of the maximum wages stipulated as Rs.750/- per month under Section 2(k)(ii) of the said enactment. The hard reality being faced in this regard is sought to be explained by the O.P. Nos.35432 and 37167 of 2001 6 learned counsel, referring to Exhibit P1 rejection of the claim putforth by the concerned workers, holding that they are not eligible to be treated as 'workers', being the recipients of monthly wage exceeding Rs.750/-. 5. Referring to the factual scenario as aforesaid, it is contended by the petitioners that the 'classification' is liable to be treated as an unreasonable one, having no nexus with the object to be achieved i.e., with regard to the object of enactment to give benefits to the plantation workers, being a welfare legislation. The further assertion made by the petitioners is that there is clear infringement of Article 21 of the Constitution of India, in so far as the right to life is having a much wider meaning and it is not mere animal existence, as explained by the Apex Court on many an occasion. With reference to the mandate under the Article 29(e) and Article 43 of the Constitution of India, it is also pointed out by the learned counsel for the petitioners that O.P. Nos.35432 and 37167 of 2001 7 there is 'Constitutional failure' on the part of the respondents in so far as they are virtually shirking off their statutory duties to give effect to the 'Act' by incorporating appropriate amendments, thus, acting detrimental to the interest of the workers, without any regard to the object and scope of the enactment and in turn, against the legislative intent. 6. It is stated in the counter affidavit filed by the first respondent that the wage ceiling of Rs.750/- was fixed in 1981 and that the process for 'amendment proposals' to enhance the wage ceiling was under consideration since 1985. It is stated that the Plantation Labour (Amendment) Bill, 1988 was introduced in the Lok Sabha on 16-12-1988, though the Bill got elapsed consequent to the dissolution of the Lok Sabha. It is further added that the Plantation Labour (Amendment) Bill, 1992 introduced in the Rajya Sabha was passed on 30-7-1992. The Bill was introduced again in the Lok Sabha, which, however, got elapsed due to O.P. Nos.35432 and 37167 of 2001 8 dissolution of the Lak Sabha on 19-5-1996. Still further, it is stated in the next paragraph (paragraph 5) of the counter affidavit that the amendment proposal to the Plantations Labour Act, 1951 was under active consideration of the Government; it was discussed in the meeting of the “Tripartite Industrial Committee on Plantation Industry” held on 3.4.2002 and as decided in the meeting, an 'Inter- Ministerial Committee' with the representative of the Ministries of Commerce, Finance and Labour and also the State Government of Assam, West Bengal, Kerala and Tamil Nadu was constituted on 5-6-2002 to look into the various issues concerning the plantation sector. It is stated that the 'Inter-Ministerial Committee' had submitted the report to the Ministry of Labour on 18-8-2003 recommending the provisions of the Plantation Labour Act to be amended/reviewed. Sri.S.Krishnamoorthy, the learned Central Government Counsel brought to the notice of this Court a copy of the letter No.S.66025/4/2004-IR(PL) dated O.P. Nos.35432 and 37167 of 2001 9 12-9-2008 of the Government of India, Ministry of Labour and Employment, New Delhi to the effect that the Cabinet has approved the amendment of Section 2(k) of the Plantation Labour Act, 1951 and that the Bill containing the amendment proposal is “likely to be introduced in the ensuing session of Parliament”. 7. Earnestness of the steps stated as being pursued by the appropriate Government has to be considered in the light of the adverse consequence resulted to the eligible workers coming under the purview of the Act for the past several years. It is brought to the notice of this Court that the minimum wages in the State of Kerala on the date of the enactment was only Rs.1.50 per day (Rs.39 per month), when the maximum ceiling as originally provided under Section 2(k)(ii) of the said 'Act' was Rs.300/- per month. Subsequently, the minimum wages payable to the plantation workers was enhanced to Rs.250-300/- per month in 1981, O.P. Nos.35432 and 37167 of 2001 10 when the corresponding ceiling of monthly wages provided under Section 2(k)(ii) was amended and enhanced to Rs.750/-. The minimum wage subsequently notified by the State of Kerala for the plantation workers was Rs.28.25 + D.A. per day (Rs.734.50 + D.A. per month); whereas the maximum ceiling prescribed under Section 2(k)(ii) of the Act remained to be the same i.e., at Rs.750/-. There was yet another revision of the minimum wage in Kerala in the year 2003 raising it to Rs.74.48 per day (Rs.1,936/- per month). But this time also, the maximum ceiling under Section 2(k) (ii) of the Act was remaining at Rs.750/- itself. The above ceiling was left in tact even in the year 2006, when the minimum wage notified by the State of Kerala was further enhanced to Rs.40.28 + D.A. per day (Rs.1,047.28 + D.A. per month). 8. As contended by the petitioners, the position with regard to the minimum wages payable all over India is more O.P. Nos.35432 and 37167 of 2001 11 or less the same as it exists in the State of Kerala, making it much above the maximum prescribed under Section 2(k)(ii) of the Act, though with some minor variations. The factual position in this regard is not put to serious challenge by the Union Government or State Government. The counter affidavit filed by the second respondent/State of Kerala goes one step further (paragraph 4), asserting that the minimum wages notified by the Government and the Wage Settlement entered into by the 'Plantation Labour Committee' in respect of the plantation workers provide for much higher amount of wages than as provided under Section 2(k)(ii) of the Act. It is further stated that as a result of the periodical revision of wages of plantation workers, they are now getting much more than Rs.750/- per month, the wage ceiling prescribed during the year 1981. The second respondent/State adds it point blank that, if the definition as it stands now is strictly taken into account, the workers of plantation would never get the protection of the Plantation O.P. Nos.35432 and 37167 of 2001 12 Labour Act, 1951. 9. In this context, it is also relevant to note the observations already made by this Court as to the callous inaction on the part of the respondents without realising the “Need of the Hour” in providing necessary amendments to save the work force at large. As obvious from the interim orders dated 23-5-2008 and 19-8-2008, the respondents were alerted of the necessity to update the laws, also pointing out the legislative intent behind the Statute and the respondents were required to furnish the details of the steps stated as taken by the Government in bringing about the necessary amendments. Quite unfortunately, the matter has not reached anywhere, but for the same turn of events, as were being pursued earlier, involving Discussions, Reports, Bills introduced in the House and the inevitable fate in 'lapse' of the same on expiry of the tenure of the House or otherwise. The respondents (particularly the first O.P. Nos.35432 and 37167 of 2001 13 respondent) appear to be still under the impression that, they have still to go a long way to complete the 'Cycle of Metamorphosis' before actually coming out from the cocoon, with anything tangible. 10. It is true, as pointed out by the learned counsel for the respondents, this Court cannot direct the respondents to legislate on a particular subject, in view of the settled law, as declared by the Apex Court in 1982(1) SCC 271. At the same time, this Court need not be shy to declare the resultant position as totally unjustified or at least 'non-workable' in view of the admitted facts and circumstances as on date, with regard to the wage ceiling. Even though Section 2(k)(ii) was very much constitutionally valid at the time of inception in 1951 and of course, till 1985 (when the process for amendment to enhance the wage ceiling was commenced as stated in paragraph 4 of the counter affidavit filed by the first respondent) or even till O.P. Nos.35432 and 37167 of 2001 14 1995 when the minimum wage payable was yet to cross the maximum ceiling provided under Section 2(k)(ii), the issue took a different turn at least from 1995 onwards, when the minimum wages notified by the appropriate Government crossed the maximum ceiling, thereby taking the beneficiaries under the Statute outside the purview and scope of the Act. There is considerable force in the submissions made by the learned counsel for the petitioners that immediate interference of the Court is very much essential to save the deserving but abandoned lots; particularly when they are quite unable to get the benefits under other relevant enactments such as ESI, etc. This is more so, in view of the observations made by the Apex Court in Rattan Arya and Others v. State of Tamil Nadu and another [1986(3) SCC 385] (paragraph 4) though in a different context. 11. In the above facts and circumstances, this Court O.P. Nos.35432 and 37167 of 2001 15 finds that there is absolutely no rationale for leaving the maximum ceiling of Rs.750/- as stipulated under Section 2 (k)(ii) of the Act, which has resulted in substantial injustice negating the intention of the original law making authority, who took pains to bring about the relevant enactment as a welfare measure. Exclusion of the workers included in the Plantation sector, on the basis of an obsolete stipulation as to the ceiling on maximum wages does not stand the test of law and time and is not in consonance with the directive principles as envisaged under the Constitution of India. This Court finds support from the decision rendered by the Apex Court in State of Kerala vs. Unni (2007(1) KLT 151) where it has been observed in paragraph No. 33 as follows; “33. When a Statute provides for a condition which is impossible to be performed, unreasonableness of a Statute shall be presumed. It would be for the State in such a situation to justify the reasonableness thereof”. O.P. Nos.35432 and 37167 of 2001 16 While declaring Rule (9(2) of the Abkari Shops (Disposal in Auction)Rules, 2002 (Kerala) as invalid and ultra vires, being unworkable, vague and unreasonable, the Apex Court also placed reliance on the law declared earlier in Hamdard Dawakhana vs. Union of India (AIR 1960 SC 554) holding that the Statute must be definite and not vague and that, where a Statute is vague, the same is liable to be struck down. (Paragraph 34). 12. Thus, met with the position in the existing scenario, the maximum ceiling of Rs.750/- provided under Section 2 (k)(ii) which is stated as “being subjected” to amendment for nearly 2½ decades and still to be materialized, has definitely to go. This Court holds it accordingly and the stipulation of Rs.750/- as the maximum ceiling under Section 2(k)(ii) of the Plantation Labour Act, 1951 is declared as 'ultra vires' to the Constitution of India in the present day context and hence, it is set aside. However, it is made clear that the appropriate Government is very much O.P. Nos.35432 and 37167 of 2001 17 at liberty to invoke its power to legislate on the subject, providing appropriate 'Ceiling' to the maximum wages under Section 2(k) of the 'Act' by way of appropriate amendments to be brought out at appropriate time, as the Government finds it fit and proper. These Original Petitions are allowed as above, however, without cost. P.R.RAMACHANDRA MENON, JUDGE. skr