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

2. The State of Goa issued a notification dated 23/24.05.2016 in exercise of the powers conferred by clause (b) of sub-section (1) of section 3 read with clause (i) of sub-section (1) of Section 4 and sub section (2) of Section 5 of the Minimum Wages Act, 1948 (hereinafter referred to as the Act, 1948) determining the minimum rates of wages payable to the various categories of the employees employed in various trades in the Scheduled Employment, which included the basic rates of wages plus special allowance. The revised minimum rates of wages as per the said notification is as under:-a) Basic rates of wages as set out in Columns (3) of the Schedule, annexed to this notification and payable to the categories of employees mentioned against them in Column (2) thereof; andb) Government also hereby introduce payment of special allowance (hereinafter referred to as variable dearness allowance) in addition to the revised minimum rates of wages as notified above at the rate of Rs. 0.95 paise for every point rise or fall beyond 269 points of All India Consumer Price Index for Industrial Workers base year 2001=100. Commissioner, Labour and Employment, Panaji shall calculate, adjust and notify such special allowance first time on and from 01-10-2016 based on the average All India Consumer Price Index for Industrial workers (2001=100) for the period 1st January to 30th June, 2016. Thereafter, Commissioner, Labour and Employment, Panaji shall periodically adjust and notify the rate of special allowance once in every six months on 1st April and 1st October every year based on the average of All India Consumer Price Index (2001=100) for the period from July to December and January to June of the preceding period respectively.2.1 That thereafter the State Government issued the impugned Errata Notification dated 14.07.2016 under which it corrected the earlier notification dated 23/24.05.2016. The word clause (i) was substituted as clause (iii). The relevant part of the said Notification reads as under:-PUBLISHED IN OFFICIAL GAZETTE- GOVERNMENT OF GOA, (EXTRAORDINARY N0.3) SERIES I No. 15DATED 14TH JULY 2016Department of LabourIn the Notifications from the Labour Department published in the Official Gazette, Series I No. 7 (Extraordinary No. 3) dated 24-5-2016 regarding revision of minimum rates of wages, the following may be corrected: -(1) At page 311, the word clause (i) may be read as clause (iii).At this stage, it is required to be noted that the Act, 1948 allows the State Government under Section 4(1) to fix the rates of minimum wages in three different ways as under:-(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; 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 allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any.2.2 The State Government while issuing the notification dated 23/24.05.2016 chose the first option and fixed the minimum rates of wages plus special allowance. Now, as per the Errata notification dated 14.07.2016, the State Government fixed the minimum rates of wages as per Section 4(1)(iii) namely an all-inclusive rate, the result and effect would be that instead of the basic rate of wages plus special allowance, as per the Errata Notification dated 14.07.2016, there shall be no minimum wages plus special allowance, but as per the Errata Notification, the minimum wages would be the basic rate of tax – an allinclusive rate excluding the special allowance.2.3 Feeling aggrieved and dissatisfied with the Errata notification dated 14.07.2016, the appellant herein preferred the writ petition before the High Court. It was the case on behalf of the State before the High Court that there was a mistake while issuing the notification dated 23/24.05.2016 and instead of clause (iii) clause (i) was mentioned and therefore, by the subsequent Errata Notification, the same has been corrected. The High Court accepted the same and by the impugned judgment and order, the High Court has dismissed the said writ petition.2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the writ petition, the original writ petitioner has preferred the present appeal.

Reasoning:
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.