Case: Madhya Pradesh Mineral Industry association Vs. The Regional Labour Commissioner jabalpur And Others

3. The appellant is a non-profit making company limited by guarantee and registered under S. 26 of the Indian Companies Act, 1913. It has been formed with the object of protecting and promoting the interest of its members-shareholders who are engaged in the mining industry by all legitimate and constitutional means. It appears that under Art. 258 of the Constitution the President of India by notification No. S. R. O. 2052 published on 11-12-1951, entrusted Governments of certain States including the Madhya Pradesh with their consent the functions of the Central Government under the Act in so far as such functions relate to the fixation of minimum rates of wages in respect of employees employed in stone-breaking or in stone-crushing operations carried on in mines situated within their respective States. Pursuant to the said delegation the Madhya Pradesh Government issued the impugned notification purporting to act under S. 5(2) of the Act. This notification has prescribed the minimum rates of wages for employment in stone-breaking or in stone-crushing operations carried on in mines. The rates thus prescribed were inclusive of dearness allowance or compensatory cost of living allowance.      4. The Regional Labour Commissioner (Central), Nagpur, respondent 1, wrote to the appellant for the first time on 20-6-1956, stating that the State of Madhya Pradesh, respondent 2, had considered the question whether the Act was applicable to the manganese mining industry and had come to the conclusion that it was so applicable; that is why the appellants members were asked by respondent 1 to implement the Act within a fortnight from the receipt of his letter. The appellant made several representations to respondent 1 urging that the Act was inapplicable to the manganese mining industry; nevertheless respondent 1 threatened large-scale prosecution of the appellants members on the basis that the Act applied to them, and its provisions had been contravened by them. The appellant was thus driven to file the present petition because it alleged that it had no alternative remedy, at any rate equally speedy and efficacious, and so it was urged on its behalf that the High Court should issue a writ quashing the impugned notification as ultra vires. In its petition the appellant had also alleged that the notification issued by the President of India under Art. 258 cannot fasten upon the manganese mining industry the character of employment in stone-breaking or stone-crushing and if that was the object of the said notification it was invalid.      5. The respondents disputed the correctness of the appellants contention that the impugned notification is invalid. It was urged on their behalf that any industry wherein the workers are employed in operations involving stone-breaking or stone-crushing is governed by the Act. In their written statement they described the details about the mining operations and contended that the mining of manganese are mainly consists of development work or the removal of over-burden, breaking of big mineral stones like boulder ore or bed ore to manageable sizes, dressing of ores to remove impurities etc. According to the respondents, having regard to the nature of the manganese mining industry the Act applied to the stone-breaking or stone-crushing operations connected with it.      6. The High Court has accepted the respondents plea and has rejected the appellants prayer that a writ should be issued in its favour prohibiting the respondents from enforcing the provisions of the Act against its members. Unfortunately, on two important points the High Court has misdirected itself. It appears to have assumed that the impugned notification has added an entry in the Schedule to the Act, and has observed that as a result of the said addition the provisions of the act came to be applied to the employment in stone-breaking or in stone-crushing operations carried on in the mines. The High Courts has made this observation in setting out the appellants case and it is on the basis of this observation that the High Court has proceeded to examine the validity of the appellants contention. It is, however, clear that the impugned notification does not purport to add any item in Schedule I and that was also not the case of the appellant. Thus the assumption made by the High Court on both the points is, with respect, erroneous.

Reasoning: 7. In its judgment the High Court has also observed that the vires of the impugned notification, though challenged in the petition, was not challenged before the High Court and so the only question that remained for its decision was one of interpretation of the relevant provisions of the entry introduced by the notification. This statement again does not appear to be entirely correct. The principal, if not the sole, ground on which the appellant sought for a writ from the High Court was that the impugned notification was ultra vires S. 5(2) of the Act. If the validity of the said notification had been conceded by the appellant its writ petition would have immediately become ineffective because if the notification is valid then the question of construction of the material entry can present no difficulty whatever. In terms the stone-breaking and stone-crushing operations carried on in mines are specified and the appellant could not possibly urge that the relevant activities carried on by its members did not attract the said descriptionIn view of the fact that the High Court has made a clear statement to the effect that the vires of the impugned notification had not been challenged before it we were at first not inclined to allow Mr. Bobde, for the appellant, to argue that point before us; however, after hearing him and after considering the rest of the record we are satisfied that the statement made in the judgment is not accurate. In the petition filed by the appellant the validity of two notifications was challenged; the first was the notification issued by the President of India under Art. 258 of the Constitution, and the second is the impugned notification under which proceedings are threatened against the appellants members. It is clear from the record that the appellant did not and could not have pressed its case against the validity of the first notification, but it did press its objection against the validity of the second notification; and that would be clear from the certificate of fitness granted by the High Court itself. The certificate says that the questions raised by the appellant relate to the applicability of the provisions of the Act to persons employed in stone-breaking or stone-crushing operations carried on at various manganese mines. Now it is clear that this question can arise only if the appellant seeks to challenge the validity of the notification, not otherwise. It is because the employees in question are, according to the appellant, not employed under any of the items prescribed in the Schedule to the Act that the impugned notification is invalid; in that context the question posed in the certificate would arise. If the notification itself is valid then the solution to the questions posed can hardly be regarded as fit for a certificate under Art. 133 (1) (c) of the Constitution. Besides, the appellants contention against the validity of the impugned notification has been set out in its application for certificate before the High Court and the same has been expressly repeated in the statement of case filed by the appellant before us. We must, therefore, hold that the High Court was in error in assuming that the vires of the impugned notification had been conceded by the appellant before it. This is another serious infirmity in the judgment of the High Court8. As a consequence of the two infirmities in the judgment the approach which the High Court adopted in dealing with the matter has been considerably influenced. It has no doubt considered the meaning of the word employment and stone in connection with the expression stone-breaking and stone-crushing. Even this part of the discussion in the judgment seems to assume that the impugned notification has really added one item to the list in the Schedule. It has apparently not been realised that if the present notification purported to make an addition to the items in the Schedule there would have been no controversy between the parties. According to the High Court employment should be given its wider sense and should be held to mean the action of employing or the state of being employed. The High Court has also held that the word stone should be taken to mean a piece of rock or hard mineral substance (other than metal) of a small and moderate size. The interpretation of the two words adopted by the High Court has been taken by it from the Shorter Oxford Dictionary and having assigned to the two words the two respective meanings just stated the High Court has held that stone-breaking and stone-crushing operations carried on in mines would attract the provisions of the Act10. It is thus clear that the whole scheme of the Act is intended to work in regard to the employments specified in Part I and Part II of the Schedule and the Legislature has wisely left it to the appropriate Government to decide to what employments the Act should be extended and in what areas.Section 5(2) empowers the appropriate Government to fix or revise minimum wages in regard to any of the employments in the Schedule to which the Act applies. This power can be exercised only if the employment in question is specified in the Schedule and the Act is therefore applicable to it. Section 27 confers a wider power on the appropriate Government, and in exercise of the said power the appropriate government may add an employment to the Schedule. The nature and extent of the said two powers are thus quite separate and distinct and there can be no doubt that what can be done by the appropriate government in exercise of its power under S. 27 cannot be done by it in exercise of its powers under S. 5(2).It is significant that the impugned notification has been issued by the Madhya Pradesh Government by virtue of the powers under S. 5(2) of the Act which have been delegated to it by the President in exercise of his authority under Art. 258 of the Constitution. The main argument urged by Mr. Bobde is that the impugned notification is ultra vires S. 5(2) because stone-breaking and stone-crushing operations in manganese mines do not fall under any of the items in Part I of the Schedule. The dispute thus raised really lies within a very narrow compass : Does employment in stone-breaking or in stone-crushing operations carried on in mines specified in the impugned notification amount to employment in stone-breaking or stone-crushing which is item 8 in Part I of the Schedule to the Act? It is common ground that the employment in question does not fall under any other item in Part I11. It is true that the provisions of the Minimum Wages Act are intended to achieve the object of doing social justice to workmen employed in the scheduled employments by prescribing minimum rates of wages for them, and so in construing the said provisions the court should adopt what is sometimes described as a beneficent rule of construction. If the relevant words are capable of two constructions preference may be given to that construction which helps to sustain the validity of the impugned notification; but it is obvious that an occasion for showing preference for one construction rather than the other can legitimately arise only when two constructions are reasonably possible, not otherwise.Now, does employment in stone-breaking or stone-crushing as specified in Part I of the Schedule on a reasonable construction include stone-breaking or stone-crushing operations in a mining industry? In answering this question it would be necessary to bear in mind that the scheduled employment under S. 2(g) covers the employment specified in the Schedule or any process or branch of work forming part of such employment. It is conceded before us by both the parties that the provisions of the Act apply to the scheduled employments in all branches of their work which may be incidental to the main scheduled employments. The impugned notification, on the other hand, applies only to the stone-breaking or stone-crushing operations carried on in mines and it does not cover other operations connected with the manganese mining works. This position is inconsistent with the scheme of the Schedule and that is a point which prima facie is in favour of the appellants contention.