C.W.P.No.2719 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.2719 of 2009 Date of Decision:- 21.05.2009 Punjab Brick Kiln Owners Association(Regd.) ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Arun Jain, Sr. Advocate with Mr.Amit Jain, Advocate, for the petitioner. Ms.Monica Chhibber Sharma, AAG, Punjab, for respondents No.1 and 2. Mr.Sanjay Tangri, Advocate, for respondent No.3. Mr.Rajeev Godara, Advocate, for respondent No.4. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge has been made to the Notification dated 6.1.2009 (Annexure P-5) issued by respondents No.1 and 2 vide which the Government of Punjab, Department of Labour and Employment in exercise of powers conferred under Section 5 of the Minimum Wages Act, 1948 (hereinafter referred to as the Act) and all powers enabling it in that behalf, has revised the minimum rates of wages in the State of Punjab with effect from 1.9.2008. The petitioner, which is an Association of brick-kiln owners of C.W.P.No.2719 of 2009 -2- Punjab, is concerned with Item No.41 wherein minimum rates of wages have been fixed for various class of employees employed in the brick-kiln industry. The ground for challenging the said notification dated 6.1.2009 (Annexure P-5) is that the notification has been issued by respondents No.1 and 2 without considering the objections raised by the petitioner- Association and without granting an opportunity of hearing. Another ground which has been taken to challenge the notification is its retrospective effect i.e. the notification is dated 6.1.2009 whereas it has been made effective from 1.9.2008. It is the submission of the petitioner- Association that in view of notification dated 27.12.2000 (Annexure P-2), the Department of Labour and Employment, State of Punjab, had revised the rates of minimum wages and linked the same with consumer price index. The State Government from time to time, i.e. after every six months, by linking proportionately with the consumer price index, has been increasing the wages. In pursuance to and in accordance with the said notification, a communication dated 5.11.2008 (Annexure P-6) was conveyed fixing the rate of wages for the brick-kiln industry with effect from 1.9.2008. The revised rates so declared with effect from 1.9.2008 were to be valid for a period of six months i.e. upto 28.2.2009. Taking it as the basis, the petitioner-Association submits that the Notification dated 6.1.2009 (Annexure P-5) could not have been issued and if issued, it would have its effect from 1.3.2009 when the effect of communication dated 5.11.2008 would come to an end. Once the powers had been exercised by the Government of Punjab, Department of Labour and Employment, under the Act for a specified period, fresh notification could not have been issued for the same period and that too with a retrospective effect. It has further been C.W.P.No.2719 of 2009 -3- submitted by the petitioner that the State Government with a view to revise the minimum wages, issued Notification dated 10.10.2008 (Annexure P-3), in exercise of the powers conferred under Clause(b) of sub-section (1) of Section 5 of the Act, proposing to invite objections or suggestions from any person to the proposed revision of the minimum wages. In response to the said Notification, the petitioner-Association filed detailed objections/representation dated 11.12.2008 (Annexure P-4) stating therein that the brick-kiln was passing through financial constraints and there was great recession because of which many organizations had slashed their work force and works. This has led to fall in the price index as well and the utilization of the bricks has also come down drastically. It has been contended that with the proposed notification, the increase in the wages of the brick-kiln employees would lead to further increase in the rate of bricks and tiles which would have a cascading effect on the sale of bricks due to the high rates resulting in closure of the most of the brick-kilns. Without considering the said objections/representation of the petitioner-Association, the State Government has proceeded to issue the Notification dated 6.1.2009 (Annexure P-5) which is not sustainable. Upon notice having been issued, respondents have filed their respective replies. Respondents No.1 and 2 have submitted in their reply that Notification dated 6.1.2009 (Annexure P-5) has been issued in accordance with the provisions of Sections 3 and 5 of the Act. As per the provisions of Section 5 of the Act, the minimum rates of wages can be fixed/revised by appointing Committees and Sub-Committees to hold enquiries and give advice or by notification method vide which proposal for fixing/revising minimum rates is published in the Official Gazette for the C.W.P.No.2719 of 2009 -4- information of the persons likely to be affected. As per Section 5 of the Act, the Appropriate Government where it proposes to revise the minimum wages by the Notification method, is required to consult the Advisory Board. It has been submitted that accordingly, the Government of Punjab had consulted the Punjab Minimum Wages Advisory Board before issuing notification under Section 5 (1) (b) of the Act. It has been further submitted that before issuance of the said notification, all the representations filed by the persons/Associations likely to be affected therefrom, were duly considered but finding no substance in the objections raised by the petitioner, the final notification dated 6.1.2009 (Annexure P-5) was issued. The minimum rates in Punjab have been revised keeping in view the inflation and the minimum rates prevalent in the neighbouring states. The minimum rates of wages were last revised in the State of Punjab vide Notification dated 27.12.2000(Annexure P-2) with effect from 1.1.2001 and, therefore, the same were due for revision w.e.f. 1.1.2006 which have now been revised vide Annexure P-5. As per the provisions of Section 5 (2) of the Act, the Appropriate Government can fix the date for implementation of the Notification for revising the minimum rates of wages and after due consideration, it was decided to fix 1.9.2008 as the date of implementation of the Notification revising minimum rates of wages in the State of Punjab. Written statement has also been filed by the added respondent No.3 which is on same lines as that of respondents No.1 and 2. Counsel for the petitioner contends that the Notification dated 6.1.2009 (Annexure P-5) could not have been issued by the Government with retrospective effect in the light of the issuance of communication dated 5.11.2008 (Annexure P-6) which had its effect and operation from C.W.P.No.2719 of 2009 -5- 1.9.2008 till 28.2.2009. The Notification dated 6.1.2009, therefore, could not have been made effective retrospectively from 1.9.2008 when there were already minimum rates fixed under the Act by the Competent Authority. He contends that once a power has been exercised by the Competent Authority under the Act, another Notification covering the same period cannot be issued under the same Act. He, on this basis, contends that the impugned notification as far as its effect from 1.9.2008 to 28.2.2009 cannot be sustained and deserves to be set aside. He contends that even if the Notification, Annexure P-5, had been validly issued, the same was to be effective from 1.3.2009 and not before that. The second submission which has been raised by the counsel for the petitioner is that the objections/representation dated 11.12.2008 (Annexure P-4) submitted by the petitioner-Association has not been considered and decided. He further contends that even if the stand taken by the respondents in their written statements that the said representation/objections were considered and rejected, is taken to be correct, then also the same cannot be said to be an effective consideration of the objections as no personal hearing was given nor was the petitioner intimated that as to when the said objections/representation would be considered and decided. He submits that a valuable right conferred on the petitioner-Association under the Statute has not been effectively allowed to be exercised by them in the absence of and by depriving them of the right of personal hearing. Counsel has further submitted that the power under Section 5 of the Act speaks about fixing the right of minimum wages and once the said power has been exercised, the same cannot be exercised again by the Government as the Statute does not provide for the overlapping C.W.P.No.2719 of 2009 -6- powers to the Government. In response to the submissions raised by the learned counsel for the petitioner, learned counsel for the State has vehemently argued that the objections/representation of the petitioner-Association were duly considered and finding no merit in the contentions raised therein, the same were rejected. She submits that the Statute does not confer a right of personal hearing on the petitioner-Association. The requirement of the Statute is merely for issuance of a Notification in the Official Gazette by the Appropriate Government publishing its proposal for information of persons likely to be affected and to consider the proposals submitted by such persons. She refers to Section 5 (b) of the Act in this regard. She accordingly submits that the statutory requirement having been fulfilled, the petitioner-Association cannot make a grouse thereof. As regards the power of the Appropriate Government to issue notification with retrospective effect, it has been contended by the counsel for the State that the power is very much available to the Government under Section 5(2) of the Act which provides that the Appropriate Government shall, by Notification in the Official Gazette, fix or as the case may be, revise the minimum rates of wages in respect of each scheduled employment and unless such notification otherwise provides. Relying upon the words “and unless such notification otherwise provides”, counsel for the State contends that the Notification can be issued by the Appropriate Government with retrospective effect as well. For this contention, she relies upon a Division Bench judgment of this Court in Sudhir Kumar Yadav and others vs. State of Haryana and others, 2008 (1) RSJ 649. As regards the contention raised by the counsel for the C.W.P.No.2719 of 2009 -7- petitioner that once the power has been exercised by the Appropriate Government under the Payment of Wages Act, the said power cannot again be exercised as the Statute does not provide for it, counsel for the State has submitted that the minimum rates of wages were last revised in the State of Punjab vide notification dated 27.12.2000. The minimum rates of wages were, therefore, due for revision with effect from 1.1.2006 which were not revised. The Appropriate Government in exercise of its powers under Sections 3 (1) (b) and 4 of the Act, can fix the minimum rates of wages linking the same with the basic consumer index. She contends that in exercise of this power, the communication dated 5.11.2008 (Annexure P-6) was issued by the Appropriate Government wherein the basis for Notification fixing the minimum wages for unskilled Labour was taken as 27.11.2000 which was made effective from 1.1.2001. She contends that the notification dated 6.1.2009 (Annexure P-5) was issued in exercise of powers conferred under Section 5 of the Act whereby the minimum rates of wages were revised in the State of Punjab. She contends that the powers which have been exercised by the Appropriate Government for issuing communication dated 5.11.2008 and notification dated 6.1.2009, under different provisions, having their different field of operation and effect, have been validly issued by the Appropriate Government. On this basis, she contends that the submissions as made by the counsel for the petitioner cannot be sustained and deserve to be rejected. Counsel for respondents No.3 and 4 have supported the submissions as made by counsel for the State and have adopted the same reasoning and submissions. I have heard counsel for the parties and with their able C.W.P.No.2719 of 2009 -8- assistance have gone through the records of the case. Sections 3,4, and 5 of the Minimum Wages Act, 1948 would be the relevant provisions upon which the decision of the case would hinge. Relevant extract of the said Sections read as follows:- “ Fixing of minimum rate of wages . 3. (1) The appropriate Government shall, in the manner hereinafter provided,- (a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Part by notification under Section 27: Provided that the appropriate Government may, in respect of employees employed in an employment specified in Part II of the Schedule, instead of fixing minimum rates of wages under this clause for the whole State, fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof; (b) review at such intervals as it may think fit, such intervals not exceeding five years, the minimum rates of wages so fixed and revise the minimum rates if necessary: Provided that where for any reason the appropriate Government has not reviewed the minimum rates of wages fixed by it in respect of any scheduled employment within any interval of five years, nothing C.W.P.No.2719 of 2009 -9- contained in this clause shall be deemed to prevent it from reviewing the minimum rates after the expiry of the said period of five years and revising them, if necessary, and until they are so revised the minimum rates in force immediately before the expiry of the said period of five years shall continue in force. xx xx xx xx xx Minimum rate of wages. 4.(1) Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under Section 3 may consist of- (i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the “cost of living allowance”); or (ii) a basic rate of wages with or without the cost of living allowance, and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or (iii) an all inclusive rate allowance for the basic rate, the cost of living allowance and the cash value of the concessions, if any. (2) The cost of living allowance and the cash value of the C.W.P.No.2719 of 2009 -10- concessions in respect of supplies of essential commodities at concession rates shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate Government. Procedure for fixing and revising minimum wages. 5. (1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate Government shall either- (a) appoint as many committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or (b) by notification in the Official Gazette, publish its proposals for the information of persons likely to the affected thereby and specify a date, nor less than two months from the date of the notification, on which the proposals will be taken into consideration. (2) After considering the advice of the committee or committees appointed under clause (a) of sub-section (1), or as the case may be, all representations received by it before the date specified in the notification under clause (b) of that sub-section, the appropriate Government shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of C.W.P.No.2719 of 2009 -11- each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue. Provided that where the appropriate Government proposes to revise the minimum rate of wages by the mode specified in clause (b) of sub-section (1), the appropriate Government shall consult the Advisory Board also.” A perusal of the above provisions would show that Section 5 of the Act provides for the procedure for fixing and revising minimum wages. It is not in dispute that vide notification dated 10.10.2008 (Annexure P-3) objections/suggestions were called for by the Government of Punjab to the proposal for revision of the minimum rates of wages in respect of sixty employments out of which one was the brick-kiln industry which finds mention at Sr.No.41. It is also not in dispute that in response to the said notification, objections were submitted by the petitioner-Association. In response to the assertion made by the petitioner-Association that their objections/representation have not been considered, the State Government has categorically stated that they had been considered and finding no merit therein, the same were rejected. The requirement of Section 5 of the Act is a publication of the proposal for information of the persons likely to be affected. In response to the said proposal, all representations received by it within the specified date in the Notification under Clause (b) of sub- section(1) of Section 5 of the Act, shall be considered and thereafter, the Government shall by Notification in the Official Gazette, fix or revise the C.W.P.No.2719 of 2009 -12- minimum rates of wages. Therefore, the requirement of law is merely the consideration of the representations received in response to the Notification issued by the Government. The requirement of personal hearing or any hearing is neither mandated nor desired under the provisions aforesaid. The objections/representation of the Association having been considered and rejected, fulfills the requirement of law and, therefore, the contention as raised by the counsel for the petitioner about the petitioner-Association not being given a personal hearing and therefore, vitiates the validity of the impugned notification cannot be accepted. The contention of the petitioner with regard to the applicability of the impugned notification dated 6.1.2009 (Annexure P-5) with effect from 1.3.2009 during the existence of the communication dated 5.11.2008 (Annexure P-6) cannot be accepted for the reason that the communication dated 5.11.2008 has been issued in exercise of the powers under Sections 3 and 4 of the Act whereas the impugned Notification dated 6.1.2009 (Annexure P-5 ) has been issued under Section 5 of the Act. Sections 3, 4 and 5 operate in different situations and fields. The exercise of powers by the Appropriate Government under Sections 3 and 4 has no effect on exercise of powers under Section 5 of the Act. The communication dated 5.11.2008 takes into consideration the minimum wages for unskilled labourers which were revised vide Notification dated 27.12.2000 to be made effective from 1.1.2001 having been linked with the basic consumer index. These were thus, the minimum rates of wages fixed from time to time keeping in view the consumer price index. The said power did not flow from Section 5 of the Minimum Wages Act, 1948. In exercise of Section 5 of the Minimum Wages Act, Notification dated 27.12.2000 was issued by C.W.P.No.2719 of 2009 -13- the Appropriate Government which was made effective from 1.1.2001 and that Notification continued and, thereafter after every six months the minimum rates were fixed while exercising powers under Section 3 of the Act keeping in view and in the light of the provisions as contained under Section 4, which provides for the minimum rates of wages and the factors to be taken into consideration for fixation of the rates of wages. Section 3 provides for the manner in which the minimum rates of wages are to be fixed by the appropriate Government and also confers with powers to review and revise the minimum rates of wages at such intervals, on the appropriate Government, as it may think fit. Sections 4 acts as a guide, by providing for, by illustrating some of the components and factors which may be taken into consideration which adjusting, fixing or revising the minimum rate of wages, at such intervals and in such manner as the appropriate Government may direct. Section 5 provides for the procedure for fixing and revising minimum wages. Therefore, the powers, the procedure, the area of operation and the fields governed by Sections 3, 4 and 5 of the Act are different. These sections although are inter-linked but not inter-dependent, as the powers exercised by the appropriate Government under these sections can be invoked collectively as well as individually depending upon the situation which the appropriate Government intends to redress as it may think fit. While issuing Notification dated 6.1.2009 (Annexure P-5) the minimum rates of wages have been revised by the State of Punjab exercising its powers under Section 5 of the Minimum Wages Act, 1948. Since the powers have been exercised by the State Government under different provisions having their specific field of operation, the communication C.W.P.No.2719 of 2009 -14- dated 5.11.2008 issued under Section 3 read with Section 4 of the Act does not debar the exercise of powers under Section 5 of the Act. The State having exercised its power under the Statute, the contention of the counsel for the petitioner cannot be accepted that the Notification dated 6.1.2009 could not have been made effective before 1.3.2009 i.e. before the expiry of the life-span of the communication dated 5.11.2008 which came into effect from 1.9.2008 and was effective for a period of six months i.e.upto 28.2.2009. The next contention which has been raised by the counsel for the petitioner is that the Notification dated 6.1.2009 (Annexure P-5) cannot have a retrospective effect. This contention of the counsel for the petitioner cannot be accepted in the light of the Division Bench judgment of this Court in Sudhir Kumar Yadav's case (supra) wherein this Court relying upon an earlier Division Bench judgment of this Court in the case of Pasupati Spinning and Weaving Mills Limited and others vs. State of Haryana and others, (C.W.P.No.13434 of 1995 decided on 25.1.1996) and a Single Bench judgment of the Karnataka High Court in the case of M/s. Mizar Govinda Annappa Pai and sons and others vs. State of Karnataka and another, 1986 Lab.I.C. 1555 has held that the Notification under the Act revising the minimum wages can have a retrospective effect. For coming to this conclusion, reliance has been placed on the expression used in sub- section (2) of Section 5 “and unless such Notification otherwise provides”. This expression in itself vests a power in the Appropriate Government to give effect to the Notification from any time it so chooses. The discretion is given to the Appropriate Government for giving effect to the Notification meaning thereby that the Notification can be effective prospectively as well C.W.P.No.2719 of 2009 -15- as retrospectively. In the present case, the State of Punjab in exercise of its power under Section 5 has, while issuing Notification dated 6.1.2009 (Annexure P- 5), given effect to the said Notification with effect from 1.9.2008 which is in consonance with the powers vested in the Appropriate Government under the Act. The said powers under the provisions as contained under the Act having been exercised, the Notification so issued by the State of Punjab cannot be said to be not in consonance with the Statute and, therefore, is in accordance with law. In the light of the judgment of the Division Bench of this Court in Sudhir Kumar Yadav's case (supra) with which the contention of the counsel for the petitioner is covered, the challenge to the retrospective operation of the Notification dated 6.1.2009 (Annexure P-5) cannot be sustained and is hereby rejected. In view of the above, finding no merit in the present writ petition, the same stands dismissed. May 21, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No