Case: Gomantak Mazdoor Sangh Vs. State of Goa &amp; Anr

order fixing or revising minimum rates of wages under this Act, or errors arising therein from any accidental slip or omission. (2) Every such notification shall, as soon as may be after it is issued, be placed before the Advisory Board for information. 7.2 What can be said to be an arithmetical or clerical error has been dealt with and considered by this Court in the case of Master Construction Co. (P) Ltd. (supra). It is observed and held that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made. 7.3 In the present case, as observed hereinabove, a conscious decision was taken by the State Government after consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised and determined in exercise of power under Section 4(1)(i). Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exercise of powers under Section 10 of the Act, 1948. 7.4 At this stage, it is required to be noted that in the Errata Notification dated 14.07.2016, as such nothing has been mentioned as to under which provision of law, the said notification has been issued. Only from the submission on behalf of the State before the High Court, the State has come out with a case that there was a clerical mistake, which is corrected by the Errata Notification. Therefore, we presume that the Errata notification has been issued in exercise of powers under Section 10 of the Act, 1948. As observed hereinabove, as such, there was no clerical mistake at all and a conscious decision was taken while issuing the notification dated 23/24.05.2016 and therefore, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948. 8. Even from the counter affidavit filed on behalf of the respondent before this Court, it is crystal clear that when the earlier notification dated 23/24.05.2016 was issued, the same was issued after due application of mind and after the draft notification was issued in which the minimum wages were sought to be revised as per Section 4(1)(iii). However, after the objections and suggestions were invited, the Labour Union submitted their representations and then a final decision was taken to revise the minimum wages as per Section 4(1)(i). In paragraphs 8,9 and 10, it is stated as under:- 8. That, the Respondent No. 1 in exercise of the powers conferred by clause (b) of Sub-Section (1) of Section 3, read with clause (iii) of Sub-Section (1) of Section 4 and Section 5 (1) (b) of the Minimum Wages Act, 1948, published a Draft Notification in the Official Gazette, Series I, No. 9, dated 28/05/2015 in Order to consider objections, suggestions, and representations by the Respondent No. 1 from all the concerned stakeholders. 9. That, I state that at this stage, the representatives of the Labour Union objected to the draft Notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance (VDA). That, the deliberations continued over a long period of time thereby resulting in delay in issuing the Final Notification for minimum wages. 10. That, I further state that taking into consideration the demand and need for introduction of special allowances in the form of Variable Dearness. Allowance (VOA) and the delay caused in the deliberations resulting in hike in Consumer Price Index and to avoid any further delay, the State Government had in the Final Notification raised the minimum rates of wages proposed in Draft Notification and also provided for introduction of VOA to be notified for the first time in October 2016, and the same was to be revised every six months i.e. in the month of October and April each year. 8.1 Therefore, considering paragraphs 8 to 10 of the counter, even according to the State, after the representation of the Labour Union, which objected to the draft notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance and after due deliberations for a longer period of time, the final notification was issued determining the minimum wages with special allowance. Therefore, subsequent case on behalf of the State that under the notification dated 23/24.05.2016, there was a clerical mistake by mentioning clause (i), which was corrected by issuing the subsequent Errata Notification cannot be accepted. 9. Even by applying Section 21 of the General Clauses Act and assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. Therefore, in the present case, assuming that the State was having the power to amend, vary or rescind the notification in exercise of powers under Section 21 of the General Clauses Act, in that case also, when the earlier notification dated 23/24.05.2016 was issued after following the due procedure as required under Sections 4 and 5 of the Act, 1948, the same procedure ought to have been followed even while varying and/or modifying the notification. Hence, the notification dated 23/24.05.2016 could not have been modified by such an Errata Notification which was issued in purported exercise of Section 10 of the Act, 1948. 10. Therefore, we are of the opinion that the Errata Notification dated 14.07.2016 was wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948, which ought to have been set aside by the High Court. The High Court has erred in dismissing the writ petition challenging the Errata Notification dated 14.07.2016 by accepting the case on behalf of the State that there was a clerical mistake, which is subsequently corrected by the Errata Notification.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7.2 What can be said to be an arithmetical or clerical error has been dealt with and considered by this Court in the case of Master Construction Co. (P) Ltd. (supra). It is observed and held that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made.7.3 In the present case, as observed hereinabove, a conscious decision was taken by the State Government after consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised and determined in exercise of power under Section 4(1)(i). Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exercise of powers under Section 10 of the Act, 1948.7.4 At this stage, it is required to be noted that in the Errata Notification dated 14.07.2016, as such nothing has been mentioned as to under which provision of law, the said notification has been issued. Only from the submission on behalf of the State before the High Court, the State has come out with a case that there was a clerical mistake, which is corrected by the Errata Notification. Therefore, we presume that the Errata notification has been issued in exercise of powers under Section 10 of the Act, 1948. As observed hereinabove, as such, there was no clerical mistake at all and a conscious decision was taken while issuing the notification dated 23/24.05.2016 and therefore, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948.8. Even from the counter affidavit filed on behalf of the respondent before this Court, it is crystal clear that when the earlier notification dated 23/24.05.2016 was issued, the same was issued after due application of mind and after the draft notification was issued in which the minimum wages were sought to be revised as per Section 4(1)(iii). However, after the objections and suggestions were invited, the Labour Union submitted their representations and then a final decision was taken to revise the minimum wages as per Section 4(1)(i).8.1 Therefore, considering paragraphs 8 to 10 of the counter, even according to the State, after the representation of the Labour Union, which objected to the draft notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance and after due deliberations for a longer period of time, the final notification was issued determining the minimum wages with special allowance. Therefore, subsequent case on behalf of the State that under the notification dated 23/24.05.2016, there was a clerical mistake by mentioning clause (i), which was corrected by issuing the subsequent Errata Notification cannot be accepted.9. Even by applying Section 21 of the General Clauses Act and assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. Therefore, in the present case, assuming that the State was having the power to amend, vary or rescind the notification in exercise of powers under Section 21 of the General Clauses Act, in that case also, when the earlier notification dated 23/24.05.2016 was issued after following the due procedure as required under Sections 4 and 5 of the Act, 1948, the same procedure ought to have been followed even while varying and/or modifying the notification. Hence, the notification dated 23/24.05.2016 could not have been modified by such an Errata Notification which was issued in purported exercise of Section 10 of the Act, 1948.10. Therefore, we are of the opinion that the Errata Notification dated 14.07.2016 was wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948, which ought to have been set aside by the High Court. The High Court has erred in dismissing the writ petition challenging the Errata Notification dated 14.07.2016 by accepting the case on behalf of the State that there was a clerical mistake, which is subsequently corrected by the Errata Notification.