Case ID: 6878

Judgment:
vil Appeal No. 4336 (NL) of 1991	 From the Judgment and Order dated 14.9.1989 of the Madras High Court in Writ Appeal No. 697 of 1989. M.K. Ramamurthy	 Mrs. Chandan Ramamurthy and M.A.Krish namurthy for the Appellants. F.S.Nariman	 R.F.Nariman	 T.S.Gopalan	 Raian Karanjiwa la	 Mrs. Manik Karanjiwala	 Mrs. V.S.Rekha and Sajai Singh for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH	 J. Special leave granted. The Reptakos Brett & Co. Ltd. (hereinafter called the 'Company ') is engaged in the manufacture of pharmaceutical and dietetic speciality products and is having three units	 two at Bombay and one at Madras. The Madras factory. with which we are concerned	 was set up in the year 1959. The Company on its own provided slab system of Dearness Allow ance (DA) which means the DA paid to the workmen was linked to cost of living index as well as the basic wage. The said double linked DA Scheme was included in various settlements between the Company and the workmen and remained operative for about thirty years. The question for our consideration is whether the Company is entitled to re structure the DA scheme by abolishing the slab system and substituting the same by the Scheme prejudicial to the workmen on the ground that the slab system 134 has resulted in over neutralisation thereby landing the workmen in the high wage island. The first settlement between the Company and the workmen was entered into on August 11	 1964. While accepting the double linked DA it further provided variable DA limited to the cost of living index up to 5.41 5.50. Further relief was given to the workmen in the settlement dated July 18	 1969 when the limit on the variable DA was removed. The Company revised the rates of DA on August 7	 1971. Thereafter	 two more settlements were entered into on July 4	 1974	 and January 4	 1979	 respectively. Slab system with variable DA continued to be the basic constituent of the wage structure in the company from its inception. The position which emerges is that in the year 1959 the Company on its own introduced slab system of DA. In 1964 in addition	 variable DA to the limited extent was introduced but the said limit was removed in the 1969 settlement. The said DA scheme was reiterated in the 1979 settlement. It is thus obvious that the slab system of DA introduced by the Company in the year 1959 and its progressive modifications by various settlements over a period of almost thirty years	 has been consciously accepted by the parties and it has become a basic feature of the wage structure in the Company. The workmen raised several demands in the year 1983 which were referred for adjudication to the Industrial Tribunal	 Madras. The Company in turn made counter demands which were also referred to the said Tribunal. One of the issues before the Tribunal was as under: "Whether the demand of the Management for re structuring of the dearness allowance scheme is justified	 if so	 to frame a scheme?" The Tribunal decided the above issue in favour of the Company and by its award dated October 14	 1987 abolished the existing slab system of DA and directed that in future dearness allowance in the Company	 be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of living Index 1936 base. The Tribunal disposed of the two References by a common award. The Company as well as the workmen filed separate writ petitions before the Madras High Court challenging the award of the Tribunal. While the two writ petitions were pending the parties filed a joint memorandum dated June 13	 1988	 before the High Court in the following terms: 135 "In view of the settlement dated 13.5.1988 entered into between the parties	 a copy of which is enclosed	 both the parties are not pressing theft respective writ petitions except with regard to the issue relating to re structuring of dearness allow The learned Single Judge of High Court upheld the find ings of the Tribunal on the sole surviving issue and dis missed the writ petition of the workmen. The writ appeal filed by the workmen was also dismissed by the High Court by its judgment dated September 14	 1989. The present appeal by special leave is against the award of the Tribunal as upheld by the High Court. Mr. M.K. Ramamurthy	 learned counsel for the appel lants has raised following points for our cosideration: (i) The Tribunal and the High Court grossly erred in taking Rs. 26 as a per war wage of a worker in Madras region and	 on that arith metic	 reaching a conclusion that the rate of neutralisation on the basis of cost of living index in December 1984 was 192 per cent. (ii) Even if it is assumed that there was over neutralisation unless the pay structure of the workmen is within the concept of a 'living wage ' and in addition it is proved that financially the Company is unable to bear the burden the existing pay structure/DA scheme cannot be revised to the prejudice of the work men. (iii) In any case the DA scheme which was voluntarily introduced by the Company and reiterated in various settlements cannot be altered to the determent of the workmen. " Before the points are dealt with	 we may have a fresh look into various concepts of wage structure in the industry. Broadly	 the wage structure can be divided into three categories the basic "minimum wage" which provides bare subsistence and is at poverty line level	 a little above is the "fair wage" and finally the "living wage" which comes at a comfort level. It is not possible to demarcate these levels of wage structure with any preci sion. There are	 however	 well accepted norms which broadly distinguish one category of pay structure from another. The Fair Wages Commit tee	 in its report published by the Government of India	 Ministry of Labour	 in 1949	 defined the "living wage" as under: "the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food	 136 clothing and shelter but a measure of frugal comfort including education for the the chil dren	 protection against illhealth	 require ments of essential social needs	 and a measure of insurance against the more important mis fortunes including old age." "The Committee 's view regarding "minimum wage was as under: "the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficien cy of the worker. For this purpose the minimum wage must also provide for some measure of education. medical require ments and amenities. " The Fair Wages Committee 's Report has been broadly approved by this Court in Express Newspapers (P) Ltd. vs Union of India	 and Standard Vacuum Refining Co. of India vs Its Workmen and Anr.	 ; The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 declared the wage policy which was to be followed during the Second Five Year Plan. The Committee accepted the following five norms for the fixation of 'minimum wage ': "(i) In calculating the minimum wage	 the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women	 children and adolescents should be disregarded. (ii) Minimum food requirement should be calculated on the basis of a net intake of calories	 as recommended by Dr. Aykroyd for an average Indian adult of moderate activity. (iii) Clothing requirements should be esti mated at per capita consumption of 18 yards per annum which would give for the average workers ' family of four	 a total of 72 yards. (iv) In respect of housing	 the rent corre sponding to the minimum area provided for under Government 's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage. (v) Fuel	 lighting and other 'miscellaneous ' items of expenditure should constitute 20% of the total minimum wage. " This Court in Standard Vacuum Refining Compa ny 's case (supra) has referred to the above norms with approval. The concept of 'minimum wage ' is no longer the same as it was in 137 1936. Even 1957 is way behind. A worker 's wage is no longer a contract between an employer and an employee. It has the force of collective bargaining under the labour laws. Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today. Keeping in view the socio economic aspect of the wage structure	 we are of the view that it is necessary to add the following additional component as a guide for fixing the minimum wage in the industry: "(vi) children education	 medical require ment	 minimum recreation including festivals/ceremonies and provision for old age	 marriages etc. should further constitute 25% of the total minimum wage. The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsist ence level. The employees are entitled to the minimum wage at all times and under all circumstances. An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry. A living wage has been promised to the workers under the constitution. A 'socialist ' framework to enable the working people a decent standard of life	 has further been promised by the 42nd Amendment. The workers are hopefully looking forward to achieve the said ideal. The promises are pilling up but the day of fulfilment is nowhere in sight. Industrial wage looking as a whole has not yet risen higher than the level of minimum wage. Adverting to the first point raised by Mr. Ramamurthy it would be convenient to quote from the award the conten tions of the Company and the findings reached by the Tribu nal. The Company 's case as noticed by the tribunal is as under: "It is stated that the pre war wage of a worker in the Madras Region was Rs.26. It is evidenced by the decision of the Labour Appel late Tribunal reported in 1951 1I L.L.J. page 314 (Buckingham and Carnatic Mills vs Their workers) and 1951 II L.L.J. page 718 (Good Pastor Press vs Their workers). It is contend ed that taking the pre war minimum wage of worker at Madr	ks being R:	. 26 per month equivalent to 100 per cent neutralization the rate of Dearness Allowance at 26 paisa for every point above 100 points of cost of living index would work out to 100 per cent neutrali sation. On the above basis at 138 2780 points of cost of living index in Decem ber 1984	 the 100 per cent neutralised wage should be Rs. 722.80 (basic wage of Rs. 26 plus dearness allowance of Rs. 696.80). As against the above wage a workman of lower grade in the Petitioner 'Company in December 1984 was getting a total wage of Rs. 1	`394/comprising of basic plus dearness allowance plus house rent allowance and the rate of neutralisation of dearness allowance correspondingly works out to 192 per cent. " The Tribunal accepted the above contentions of the Company. The evidence produced by the Company	 regarding prevailing DA schemes in the comparable industries in the region	 was also taken into consideration. The Tribunal finally decided as under: "Taking an overall view of the rate of dear ness allowance paid by these comparable con cerns in the region and the higher total emoluments received by the workmen in this establishment	 the slab system of dearness allowance now in existence shall stand abol ished and in future	 dearness allowance in the Petitioner Management would be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of Living Index 1936 base and it shall be effec tive from the month in which the award is published in the Tamil Nadu Gazette. " The learned Single Judge of the High Court upheld the above findings of the Tribunal. The Division Bench of the High Court	 in writ appeal	 approved the award and the judgment of the learned Single Judge in the following words "The learned judge has observed that the counsel for the Management had taken him through all the relevant materials which were filed in the form of Exhibits before the Tribunal in order to show that the matter of over neutralisation cannot be in dispute. Thus the learned Judge proceeded on the basis that there is over neutralisation which called for devising a scheme for restructuring the wage scale. This finding cannot be interfered with as no materials have been placed before us by the learned counsel for the appellant to show that the exhibits which were perused by the learned Judge do not support his conclusion. Hence	 we hold that the contention that there are no compelling circumstances in this case to revise the pattern of dearness allowance is unsustainable. " 139 According to the Company the only purpose of DA is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before. In other words the DA is to neutralise the rise in prices. the said purpose can be achieved by providing maxi mum of 100 per cent neutralisation. Accepting the calcula tions of the Company based on Rs. 26 being the pre war (1936) minimum wage in Madras region the Tribunal came to the finding that there was 192 per cent neutralisation. The Tribunal accepted Rs. 26 as the pre war minimum wage in Madras region on the basis of the decisions of Labour Appellate Tribunal of India in Buckingham and Carnatic Mills Ltd. vs Their workers	 and Good Pastor Press vs Their workers	 In Buckingham case the appellate tribunal came to the conclusion that the basic wage of the lowest category of operatives on the living cost of index of the year 1936 was Rs. 28. The said wage included Rs.16 1/2 as expenses on diet. The workers relied upon the Textile Enquiry Commit tee 's report to claim 25% addition to the diet expenses. The Appellate Tribunal rejected the report on the ground that the recommendations in the said report were for the purpose of attaining the standard of "living wage" and not of 'min imum wage '. The Appellate Tribunal stated as under: "The Union however	 contends that Dr. Akroyd revised his opinion when submitting a specially prepared note to assist the Textile Enquiry Committee	 Bombay of which Mr. Justice Divatia was the Chairman	 where he is said to have stated that 25 per cent more will have to be added for obtaining a balanced diet for a minimum wage earner. The report of that Enquiry Committee	 which was published in 1940	 however	 shows that Dr. Akroyd added 25 per cent as the costs of the extra items to his standard menu such as sugar etc.	 for the purpose of attaining the standard menu of 'living wages ' (final report of the Textile Labour Enquiry Committee 1940	 Vol. II	 pages 70 to 71). Therefore	 for the purpose of fixing 'minimum wages ' that 25 per cent is not to be added. " The question as to whether the recommendations of Textile Enquiry Committee were in relation to 'living wage ' or 'minimum wage ' came for consideration before this Court in Standard Vacuum case (supra). This Court held as under: "It is obvious that the Committee was really thinking of what 140 is today described as the minimum need based wage	 and it found that judged by the said standard the current wages were deficient. In its report the Committee has used the word 'minimum ' in regard to some of the constitu ents of the concept of living wage	 and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents. Therefore	 though the expression 'living wage standard ' has been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than the need based minimum wage at that time. If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory." This Court	 therefore	 in Standard Vacuum case came to the conclusion that the Textile Labour Committee Report in the year 1940 in its calculations did not proceed beyond the minimum level of the wage structure. It was further held that Rs. 50 to Rs. 55 was the need based minimum wage in the year 1940. The Appellate Tribunal in Buckingham case	 therefore misread the Textile Committee Report and was not justified in rejecting the same on the ground that it related to the category of 'living wage ' We are of the view that it would not be safe to accept the findings of the Appellate Tribunal in Buckingham case as the basis for fixing the wage structure to the prejudice of the workmen. This court in Standard Vacuum case (supra) has further held that in Bombay the minimum wage in the year 1940 was Rs.50 to Rs.55. On that finding it is not possible to accept that the minimum wage in the year 1936 in Madras region was Rs.26/28. So far as the Good Pastor Press case is concerned the question of determining the minimum wage in per war 1936 was not before the Appellate Tribunal. It only mentioned the fact that Rs.26 was held to be so by some of the subordinate tribunals. There was no discussion at all on this point. The Tribunal 's reliance on this case was wholly misplaced. In any cause we are of the opinion that purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wage structure. The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices. There has been sky rocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today. 141 We may now move on to the second and third point raised by Mr. Ramamurthy. We take up these points together. Mr. F.S. Nariman	 learned counsel appearing for the Company	 contended that the existing DA scheme can be revised even to the prejudice of the workmen and for that proposition he relied upon the judgment of this Court in M/s. Crown Alumin ium works vs Their Workmen; 	 Mr. Rama murthy has	 however	 argued that even if the contention of Mr. Nariman is accepted in principle	 the Company has not been able to make out a case for such a revision. In M/s. Crown Aluminium Works case this Court speaking through Gajendragadkar	 J.(as he then was) held as under: "The question posed before us by Mr. Sen is: Can the wage structure fixed in a given indus try be never revised to the prejudice of its workmen? Considered as a general question in the abstract it must be answered in favour of Mr. Sen. We do not think it would be correct to say that in no conceivable circumstances can the wage structure be revised to the prejudice of workmen. When we make this obser vation	 we must add that even theoretically no wage structure can or should be revised to the prejudice of workmen if the structure in question falls in the category of the bare subsistence or the minimum wage. If the wage structure in question falls in a higher cate gory	 then it would be open to the employer to claim its revision even to the prejudice of the workmen provided a case for such revision is made out on the merits to the satisfaction of the tribunal. In dealing with a claim for such revision	 the tribunal may have to con sider	 as in the present case whether the employer 's financial difficulties could not be adequately met by retrechment in personnel already effected by the employer and sanc tioned by the tribunal. The tribunal may also enquire whether the financial difficulties facing the employer are likely to be of a short duration or are going to face the em ployer for a fairly long time. It is not necessary	 and would indeed be very difficult	 to state exhaustively all considerations which may be relevant in a given case. It would	 however	 be enough to observe that	 after considering all the relevant facts	 if the tribunal is satisfied that a case for reduc tion in the wage structure has been estab lished then it would be open to the tribunal to accede to the request of the employer to make appropriate reduction in the wage struc ture	 subject to such conditions as to time or otherwise that the tribunal may deem fit or expedient to impose. " 142 The above dicta was reiterated by this Court in Ahmeda bad Mills Owners	 Association etc. vs The Textiles Labour Association	 wherein this Court through Gajendragadkar	 CJ	 laid down as under: "The other aspect of the matter which cannot be ignored is that if a fair wage structure is constructed by industrial adjudication and in course of time	 experience shows that the employer cannot bear the burden of such wage structure	 industrial adjudication can	 and in a proper case should revise the wage struc ture	 though such revision may result in the reduction of the wages paid to the employees. . . . if it appears that the employer cannot really bear the burden of the increasing wages bill industrial adjudication	 on principle	 cannot refuse to examine the employer 's case and should not hesitate to give him relief if it is satisfied that if such relief is not given	 the employer may have to close down his business. . . This principle	 however	 does not apply to cases where the wages paid to the employees are no better than the basic minimum wage. If	 what the employer pays to his employees is just the basic sub sistence wage	 then it would not be open to the employer to contend that even such a wage is beyond his paying capacity. " The ratio which emerges from the judgments of this Court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage. But in an industry or employment where the wage struc ture is at the level of minimum wage	 no such revision at all	 is permissible not even on the ground of financial stringency. It is	 therefore	 for the management	 which is seeking restructuring of DA scheme to the disadvantage of the workmen to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage struc ture. Mr. Ramamurthy further relied upon this Court 's judgment in MonthlyRated workmen at the Wadala factory of the Indian Hume Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd.	 Bombay	 ; and contended that an employer cannot be permitted to abolish the DA scheme which has worked smoothly for almost thirty years on the plea that the said scheme is more beneficial than the DA schemes adopted by other indus tries in the region. In the Indian Hume Pipe Co. Ltd case the management pleaded that the dearness allowance enjoyed by the workmen was so high in certain cases that neutralisation was at rates much higher than 100%. It was further contended that the manage ment did not have the capacity to pay the slab system of DA and in the event of a claim for similar DA by other workmen the management might have to close down the factories. Khalid	 J. spoke for the court as under: "We thought it necessary to refer to the various awards read by Mr.Pai only for the completeness of the judgment. It has to be borne in mind that in most of these cases	 awards were passed at the instance of the employees when demands were made for raising the dearness allowance paid to them. Here	 we have the case of the employer trying to get over a system of dearness allowance which had worked smoothly for 18 years	 on the specious plea that at the time the slab system was introduced	 it was not in the expectation of anyone that the cost of price index would spiral up so much as to make it impossible for the company to pay according to this scheme. From the materials available we do not find that this plea can be accepted. The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year. . . we do not think it necessary to deal at length about the evolu tion of the concept of dearness allowance. Suffice it to say that this Court has	 often times	 emphasised the need for a living wage to workmen instead of a subsisting wage. It is indeed a matter of concern and mortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream. Nothing short of a living wage can be a fair wage. It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extent at least free from want. It is against this background that a claim by em ployers to change the conditions of service of workmen to their detriment has to be consid ered and it is against this background that we have considered the award review. We are not satisfied that a case has been made out on the facts available for a change. . . . The question is often asked as to whether it would be advisa ble for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises. Normally the answer would be in the negative. Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen	 except inexcep tionally rare cases	 144 fail within the category of mere "sub sisting wages". That being so	 it would be inadvisable to tinker with the wage structure of workmen except under compelling circum stances. " We agree with Mr. Ramamurthy that the DA scheme which had stood the test of time for almost thirty years and had been approved by various settlements between the parties has been unjustificably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable. Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. vs Killick & Allied Companies Employees ' Union	 to support the findings of the Tribunal and the High Court. The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers. In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance. The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen. Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: "These figures as detailed in exhibit M 13 would establish that the company is not in a finan cial position to bear the additional burden on account of increased wages. " From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme. We do not agree with the learned counsel. The Tribunal gave the above finding in the refer ence made on behalf of the workmen asking for bonus increase and various other monetary benefits. While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers ' demands. The Tribunal nowhere considered the financial position of the company vis avis the existing DA scheme. The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA. The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme. It has been pleaded by the company that its workmen are in a high wage island and as such the revision of DA scheme was justified. The 145 Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen. On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region. There is	 however	 no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need based minimum wage. In any case there is a very long way between the need based wage and the living wage. Mr. Nariman reminded us of the limits on our jurisdic tion under Article 136 of the Constitution of India and relying upon Shaw Wallace & Co. Ltd. vs Workmen	 and The Statesman Ltd. vs Workmen	 ; contended that so long as there is "some basis	 some materi al to validate the award" the "jurisdiction under Article 136 stands repelled". The Tribunal and the High Court	 in this case	 has acted in total oblivion of the legal position as propounded by this court in various judgments referred to by us. Manifest injustice has been caused to the workmen by the award under appeal. We see no force in the contention of the learned counsel. In view of the above discussion we are of the view that the Tribunal was not justified m abolishing the slab system of DA which was operating in the Company for almost thirty years. We allow the appeal and set aside the award of the Tribunal and the judgment of the learned Single Judge in the writ petition and of the Division Bench in the Writ Appeal. The reference of the Company on the issue of re structuring of the dearness allowance is declined and rejected. The Appellant workmen shall be entitled to their costs through out which we assess at Rs. 25	000.

Summary:
The respondent company	 in its factory set up at Madras 1959	 introduced slab system of dearness allowance (DA) i.e. the DA paid to the workmen was linked to the cost of living index as well as the basic pay. The double linked DA scheme	 being consciously accepted as basic constituent by the company and its workmen in various settlements between them	 became basic feature of the wagestructure and remained operative in the company for about 30 years	 In the year 1983	 a dispute arose between the company and its workmen. The matter was referred to the industrial Tribunal. One of the issues before the Tribunal was based on the demand of the Management for restructuring of the dear ness allowance scheme and to frame a new scheme. The Tribu nal abolished the existing slab system of DA and directed the dearness allowance to be linked only to the cost of living index at 33 paise per point over 100 points at the Madras city cost of living index 1936 base. Before the High Court	 both the parties agreed not to press their respective writ petitions except on the issue of restructuring of 130 DA. Upholding the findings of the Tribunal on the sole surviving issue	 the Single Judge dismissed the workmen 's writ petition. The intra Court appeal filed by the workmen was also dismissed. grieved	 the workmen filed the appeal by special leave to this Court. It was contended on behalf of the workmen that the Tribunal and High Court grossly erred in taking Rs. 26 as a pre war wage of a worker in Madras region and holding that the rate of neutralization on the basis of cost of living index in December	 1984 was 192%; that even assuming that there was over neutralization	 the existing pay structure/DA scheme could not be revised to the prejudice of the workmen unless their pay structure was within the concept of 'living wage ' and	 in addition	 it was proved that financially the company was unable to bear the burden; and that the company could not be permitted to abolish the DA scheme to the detriment of the workmen much less on the plea that the said scheme was more beneficial than the DA schemes adopted by other industries in the region. The respondent	 contended that the company had proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of existing DA scheme; that its workmen were in a high wage island and as such the revision of DA scheme was justified. It was also contended that so long as there was some basis and material to vali date the award	 the jurisdiction under Article 136 of the Constitution stood repelled. On the question; whether the Management is entitled to restructure the DA scheme to the prejudice of the workmen on the ground that the existing system had resulted in over neutralization thereby landing the workmen in the high wage island Allowing the appeal of the workmen	 this Court	 HELD: 1.1. The management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage. But in an industry or the employment where the wage structure is at the level of minimum wage	 no such revision at all	 is permissible not even on the ground of financial stringency. [p. 142 E] Monthly Rated workmen at the Wadala factory of the Indian Hume 131 Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd.	 Bombay	 ; 	 relied on. M/s Crown Aluminium Works vs Their Workmen	 ; & Ahmedabad Mills Owners ' Association etc. vs The Textiles Labour Assosication; 	 	 referred to. Killick Nixon Ltd. vs Killick & Allied Companies Employ ees Union	 	 distinguished. 1.2 The employees are entitled to the minimum wage at all times and under all circumstances. An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry. [p. 137 C] 1.3 It is for the management	 seeking to restructure the DA scheme to the disadvantage of the workmen	 to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wagestructure. [p. 142 F] 2.1 'The concept of 'minimum wage ' is no longer the same as it was in 1936. Even 1957 is way behind. A worker 's wage is no longer a contract between an employer and an employee. It has the force of collective bargaining under the labour laws. Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today. [pp. 136 H	 137 A] 2.2 The Tripartite Committee of the Indian Labour Con ference ' 1957 has formulated five norms for the fixation of 'minimum wage ' (i) three consumption units for one earner disregarding earnings of women	 children and adolescents; (ii) minimum food requirement based on net intake calories; (iii) clothing requirement at 72 yards per annum for an average working family of four; (iv) house rent correspond ing to minimum area provided for under the Government 's Industrial Housing Scheme; (v) 20% of total minimum wage for fuel	 lighting and other miscellaneous items. [p. 136 D G] Express Newspapers (P) Ltd. vs Union of India	 	 followed. Standard Vacuum Refining Co. of India vs Its Workmen & Anr.	 ; 	 relied on. 132 Keeping in view the socio economic aspect of the wage structure the following additional component has also to be taken into account: "(vi) children education	 medical require ment	 minimum recreation including festivals/ceremonies and provision for old age	 marriages etc. should further constitute 25% of the total minimum wage	 The wage structure which approximately answers these six components is nothing more than a minimum wage at subsist ence level. [p. 137 A C] 2.3 In spite of the promise by the Constitution of a living wage and a 'socialist ' framework to enable the work ing people a decent standard of life, industrial wage, looking as a whole, has not yet risen higher than the level of minimum wage. [p. 137 D E] 3.1 Purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wagestructure. The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices. There has been skyrocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today. [p. 140 F H] 3.2 In the instant case, the Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA; nor did the Tribunal deal with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme. [p. 144 F G] 3.3 Although the DA paid by the Company was somewhat higher than what was being paid by the other similar indus tries in the region, yet it could not be shown that what was being paid by the Company was higher than what would be required by the concept of need based minimum wage. In any case there is a very long way between the need based wage and the living wage. [p. 145 AB] 4. The Tribunal and the High Court acted in total oblivion of the legal position. Consequently, manifest injustice has been caused 133 to the workmen by the award. It can, therefore, not be said that jurisdiction under article 136 stands repelled. [p. 145 CD] Shaw Wallace & Co. Ltd. vs Workmen, & The Statesman Ltd. vs Workmen, ; , referred to. The Tribunal was not justified in abolishing the slab system of DA which had stood the test of time for almost 30 years and had been approved by various settlements between the parties and as such the award of the Tribunal and the High Court judgments were unsustainable. [pp. 144 AB; 145 DE] Buckingham and Carnatic Mills Ltd. vs Their Workers, [1951] 2 L.L,. J. 314 & Good Pastor Press vs Their Workers, , referred to. 
3900	Under the U.P. Higher Judicial Service Rules, 1953 appointments to the posts of Civil and Sessions Judges were made by promotion from the members of the U.P. Civil Service (Judicial Branch) and by direct rccruitment. Rule 20 of the Rules dealing with seniority provided that seniority in each of the two classes of posts shall be determined by the date of confirmation in that class of post. Rule 23 provided that a probationer shall be confirmed in his appointment at the end of his period of probation if the Governor was satisfied that he was fit for confirmation. The appellant who was appointed as a Civil Judge in 1955, was promoted as officiating Civil and Sessions Judge in July, 1960. Respondents 3 to 5 who were direct recruits to the post of Civil and Sessions Judges joined service In May/June, 1966. For the purpose of absorbing the promoted officers the Government converted 22 temporary posts into permanent posts of Civil and Sessions Judges with effect from April 1, 1966. Three out of those posts were given to the three respondents, who were direct recruits, and they were confirmed in the posts with effect from May/June, 1968. In twelve other posts, twelve promotees were confirmed with effect from April 1, 1966, but the appellant was not so confirmed though he had been continuously officiating as a Civil and Sessions Judge since July, 1960. He was confirmed as Civil and Sessions Judge with effect from January 1, 1969. He was eventually confirmed in the post of District and Sessions Judge with effect from February 1, 1973. The three respondents were later appointed as District and Sessions Judges. By a Notification dated March 19, 1975, they were confirmed in those posts with effect from July/August, 1972. The Notification dated July 22, 1977 issued by the High Court, showed the three respondents at serial Nos. 31 and 32 of the list and the appellant at No.38 and the dates of confirmation were shown as August 25, 1972 in respect of three respondents and March 18, 1973 in respect of the appellant. The High Court allowed the appellant 's writ petition and quashed the Notifications dated March 19, 1975 and July 22, 1971 insofar as they related to the dates of confirmation of the appellant and the respondents. The High Court on the administrative side was directed to redetermine the dates of their confirmation as District and Sessions Judges and their inter se seniority in accordance with Rule 20. 83 In appeal it was, inter alia, contended on behalf of the appellant that the 22 permanent posts having been created with effect from 1 4 1966 for permanent absorption of promotees who had been officiating prior to that date four a period of more than three years, (Respondents 3 to S who were not even in service on that date, could not be absorbed against any of those vacancies, and the appellant who had put in nearly six years of service in the Cadre on the date when the three respondents were appointed, could not be denied confirmation with effect from April 1, 1966; that apart from greater length of service, the appellant has an excellant, unblemished record of service; and in the circumstances, the confirmation of the appellant with effect from date later than those assigned to Respondents 3, 4 and S is unfair, arbitrary and discriminatory. Allowing the appeal, ^ HELD: The main criteria to be considered for confirmation of officers officiating in the Higher Judicial Service of the State are: (i) Availability of a substantive vacancy/post. (ii) Suitability for the post. [92C] Here, a substantive post of Civil and Sessions Judge was available to the appellant from April 1, 1966, when Respondents 3, 4 and 5 had not even been appointed to the service in any capacity. By April 1, 1966, the appellant had put in service as officiating Civil and Sessions Judge for a period exceeding 5 years and 9 months. There is nothing on record to suggest that by or on April 1, 1966, he was not suitable for confirmation as Civil and Sessions Judge, or later, as District and Sessions Judge when a post in that grade became available to him. In the circumstances, the impugned Notification dated March 19, 1975 issued by the Government, inasmuch as it did not accord to the appellant the same treatment which had been meted out to twelve other promoted officers who were confirmed with effect from April 1, 1966, is not based on any intelligible. differentia or reasonable principle, and as such, cannot be sustained. The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court. Once it is found that the Notification dated March 19, 1975 cannot be sustained, The foundation for fixing the dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble. [92D G] The entire matter therefore, requires reconsideration by the High Court in the exercise of its powers under Article 235 of the Constitution. 
4909	Section 3 of the Punjab Aided Schools (Security of Service) Act, 1969 ( '1969 Act ' for short) provides that no employee shall be dismissed or removed or reduced in rank except after an inquiry to be held in the manner prescribed therein. Sub sec. (2) provides that no order of dismissal or removal or reduction in rank of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so. if in his opinion, the provisions of sub sec. (I) have not been complied with. Sub sec. (S) permits an aggrieved person to prefer an appeal against any decision or order of the Deputy Commissioner under the section to the Commissioner. The appellant in the civil appeal was appointed as Headmaster of an aided school which received 95 percent of its expenses as grant from the Government. As required by the conditions of his appointment, the appellant entered into an agreement with the management of the school. The appellant 's appointment was confirmed by the concerned authority. The appellant was confirmed in his post as the Headmaster. The appellant was 480 awarded a certificate of honour by the Chandigarh administration in token of appreciation of the outstanding performance of the appellant. After the term of the Managing Committee which appointed the appellant expired and the new Managing Committee took over, the services of the appellant were terminated invoking the conditions of the agreement entered into by the appellant. The appellant 's appeal to the Deputy Commissioner and the Commissioner were turned down. The appellant 's writ petition was dismissed by the High Court in limine. The High Court observed that as the school cannot be said to be 'other authority ' under article 12 of the Constitution, it was not amenable to the writ jurisdiction of the High Court. Hence this appeal by Special Leave. The petitioner in the writ petition was appointed as a Drawing Teacher in 1976. As required by the conditions of his appointment the petitioner entered into an agreement with the management. In 1983 the petitioner 's services were terminated invoking the conditions of the agreement. The petitioner approached the Deputy Commissioner and the Commissioner without success. Thereupon he field the present writ petition under article 32 of the Constitution. Allowing both the appeal and the writ petition, ^ HELD: Any agreement not in consonance with the statutory provisions beneficial to a class in need of protection cannot be given effect to if it stands in derogation of the mandatory provisions of the statute. Section 3 of the 1969 Act makes it obligatory to hold a disciplinary inquiry before an employee of an aided school can be either dismissed removed or reduced in rank. In order to circumvent this mandatory provision, a resort to the provisions of the agreement in the context of the fact that an inquiry was commenced and given up clearly indicates the true nature of the order as well as colourable exercise of power. And this was done by the new Managing Committee which appeared to be keen to dispense with the service of persons appointed by the outgoing Managing Committee. This smacks of malafide. For these reasons the order of termination of service of the appellant is bad and ab initio void. [485E G] The High Court declined to grant any relief on the ground that an aided school is not 'other authority ' under Act. 12 of the Constitution and is therefore not amenable to the writ jurisdiction of the High Court. The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 969, Act. They are quasi judicial authorities and that was not disputed. Therefore, they will be comprehended in the expression 'Tribunal ' as used in article 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction. Obviously, therefore, the decision of the statutory quasi judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the High Court under article 227 of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising power under Sec. 3 of the 1969 Act. And these statutory 481 authorities are certainly amenable to the writ jurisdiction of the High Court. [485G H; 486A C] After the decision of the Constitution Bench of this Court in Ajay Hasia etc. vs Khalid Mujib Sehravardi and Ors. etc. the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who are subject to the relations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be approved by the Director of Public Instructions , would certainly be amenable to the writ jurisdiction of the High Court. [486C D] Ajay Hasia etc. vs Khalid Mujib Sehravardi and Ors. etc. ; , , referred to. The Deputy Commissioner and the Commissioner in terms held in both the cases that because of the terms of the agreement entered into by each of the teachers with the management of the school, it would not be open to them to go behind the order and to find out the true nature of the order. Now if the management of the school intends to circumvent the mandatory provisions of Sec. 3 of the 1969 Act, it has merely to terminate the service by giving one month 's notice as provided in the agreement and the provisions controlling the arbitrary powers of the management to hire and fire can be rendered nugatory. The Deputy Commissioner cannot take an easy recourse becoming oblivious to his duties merely to pay lip sympathy to the order made by the management and decline even to examine the allegation of malafide as also the true nature and character of the impugned order. [484B D] 
1871	The assessee was a share holder in a private limited company whose ordinary business was not money lending business. He took a loan amounting to over Rs. 4 lakhs from a company. The Income tax Officer computed the assessee 's income at Rs. 3 lakhs and odd, under section 12(1B) read with section 2 (6A) (e) of the Income tax Act, 1922. That amount included a sum of over Rs. 2 lakhs representing the accumulated profits of the company. The assessee 's share in the accumulated profits, if distributed as dividend, would be an amount proportionate to the number of shares held by him. He therefore contended, that the balance of the accumulated profits was not his income and that the Legislature was not competent to enact the two sections according to which that amount was also treated as his income. His writ petition in the High Court challenging. the constitutional validity of the two sections was dismissed. He appealed to the Supreme Court. HELD (Per Gajendragadkar, C. J., Wanchoo, Hidayatullah and Mudholkar JJ.) : (i) The sections are not beyond the legislative competence of Parliament. The companies to which section 12(1B) applies are companies in which at least 75% of the voting power lies in the hands of persons other than the public. They are controlled by a group of persons allied together and having the same interest. The controlling group can determine whether the profits made by the company should be distributed as dividends or not. When they deliberately refused to distribute the accumulated profits as dividends but adopted the device of advancing the profits by way of loan to one of the shareholders, it was with the object of evading the payment of tax by the company on the accumulated profits. Section 12(1B) provides that if a controlled company adopts the device of making a loan to one of its shareholders, he will be deemed to have received the amount out of the accumulated profits as dividend and would be liable to pay tax on his income. The word income" in Entry 82 in List I of the 7th Schedule to the Constitution must receive a wide interpretation depending on the facts of each case. Having regard to the fact that the Legislature was aware of the devices to evade tax	 it would be within its competence to devise a fiction for treating an ostensible loan as the receipt of the dividend. [919 A H. 920 H; 921 C D] (ii) The absence of a provision enabling the income tax officer to consider in each case whether the loan was genuine or the result of a device does not make the section go beyond the competence of the Legislature. [921 D E] If the Legislature thought that in almost every case the advances or loans were the result of a device to evade tax	 it would be competent to 910 it to prescribe a fiction and hold that in cases of such advances or loans	 tax should be recovered from the shareholder on the basis that he had received a dividend. [921 G H] (iii) Section 12(lB) does	not impose an unreasonable restriction on the appellant 's fundamental rights under article 19(1) (f) and (g) of the Constitution. [922 A] The section does not affect the appellant 's right to borrow money. There is no element of unfairness	 because the other shareholders have deliberately agreed to make the loan or the advance and the shareholder to whom the loan is advanced deliberately takes it with a view to assist the company to evade the payment of tax and to have the benefit of the use of the amount subject to the payment of interest. The company receives interest	 the shareholder enjoys the use of the money and in the process the payment of tax is evaded. Further	 past transactions were excluded from the operation of the sections by the issue of a circular by the Central Board of Revenue. [922 B F] Per Raghubar Dayal J. (dissenting) : (i) Sections 2(6A) (e) and 12(lB) of the Income tax Act	 1922 as they stood in 1955 are void. [923 B] It is not open 'to the Legislature to describe any payment of money by a company to a shareholder by the word "dividend" and then provide that such payment will come within the expression "income" in item 82	 List I of Schedule 7. The definition of dividend must have a rational connection with concept of dividend in the context of the profits of the company and its distribution amongst the shareholders. The essence of an amount paid as dividend is that it has to represent the proportionate amount a particular shareholder is to get on the basis of the shares held by him out of the profits of the company set apart for payment of dividend to shareholders. Any ad hoc payment of money to a shareholder as advance or loan unrelated to his share in the accumulated profits cannot rationally come within the expression dividend. [926 E H] (ii) The provisions of the impugned sections impose unreasonable restrictions on the fundamental right to hold property under article 19(1)(f) of the Constitution. [928 E] If any enactment provides that certain profits of the company	 though not distributed as dividend	 be treated as used for the payment of dividends it should necessarily follow that a particular shareholder be deemed to have received a proportionate amount of such profits. It would be unreasonable to provide that a particular shareholder should be deemed to have received an amount in excess of his proportionate share as dividend. It is unreasonable that a particular shareholder who receives a loan or advance from a company be deemed to have received that entire amount as dividend when his proportionate share would be much less. [928 B E] Navinchandra Mafatlal vs Commissioner of Income tax	 Bombay City	 [1955] 1 S.C.R. 829	 Sardar Baldev Singh vs Commissioner of Income tar	 Delhi and Agra [1961] 1 S.C.R. 482 and Balaji vs Income tax Officer	 Special Investigation Circle	 ; 	 referred to.