SUKUMARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) A batch of writ petitions was heard by Govindan Nair,J.; and the learned Judge dismissed the writ petitions.Against the dismissal of one of the,writ peti­tions,the writ appeal has been filed by the petitioner in the writ petition.Another batch of writ petitions came before Isaac,J .,before whom the decision of Govindan Nair,J.was cited.Isaac,J.disagreed with that decision and placed the writ petitions before a Division Bench.The writ appeal,the writ petitions referred and a few other similar writ petitions come up before us for disposal.The order of re­ference by Isaac,J.is reported as Vadakkekara Karshaka Samajam v. State of Kerala 1971 "( II)L.L.J.252(We think that this decision cannot strictly be cited as a precedent though it is reported,because nothing has been decided in those writ petitions,the learned Judge having just expressed his opinion without deciding any case.)

(2.) THE Government of Kerala published a notification under section 3(1 ),( b)and 5(1 )(b)of the Minimum Wages Act.The notification was dated 9th February,but was published in the Gazette dated 27th February,1968.The relevant portion of the notification read: "Notice is hereby given that the proposal will be taken up for consideration on or before 15th April 1968 and that any representation that may be received from any person with respect to the said proposal before the expiry of the above date will be considered by the Govern­ment.'All representations shall be addressed to the Secretary,Health and Labour Department,Secretariat,Trivandrum." Thereafter,the Government considered the representations received by them,consulted the Advisory Board constituted under section 7 and then published another notification as contemplated by section 5(2)of the Act revising the mini­mum rates of wages for agricultural labour.In the cases before us,the second notification mentioned above is being questioned on the ground that the first notification did not conform with the relevant section under which it was issued. Section 5(1)reads: "Procedure for fixing and revising minimum wages."( 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 inquiries 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 be affected thereby and specify a date,not less than two months from the date of the notification,on which the proposals will be taken into consideration."

(3.) THE main contention urged before us is that the noti­fication extracted above does not comply with section 5(1 )(b)of the Act.As already stated,the notification was dated 9th February 1968,but was published in the Gazette only on 27th February.The notification fixed the date on which,the proposal would be taken for consideration as "on or before 15th April 1968 "; and the notification provided that "any representation that may be received from any person with respect to the said proposal before the expiry of the above date will be considered by the Government " ;.Govindan Nair,J.appears to think that,"if the Govern­ment felt after considering the report of the committee that there should be further material and published a notifica­tion under section 5(1 )(b)of the Act,called for representa­tions and consulted the Advisory Board as well before making up their mind,this Court would not be justified in setting aside the fixation of minimun wages " ;.According to the learned Judge,the Government took action under section 5(1 )(a ),but issued a further notification under section 5(1 )(b)of the Act too:in the words of Govindan Nair,J .,"the notification under section 5(1 )(b)in these cases is unnecessary,the committee under section 5(1 )(a)having been constituted and their report being made available to the State Government " ;.The learned Judge has also considered the decision of the Bombay High Court in Ramakrishna Ramnath v. The State of Maharashtra A.I.R.1964 Bombay 51 which had occasion to consider the decision of this Court in Vasudevan v. State of Kerala ) A.I.R.1960 Kerala 67 Kotval,J.( as he then was)of the Bombay High Court has extracted a passage from the decision of our Court and has observed that that obser­vation "seems to have been inadvertently made " ;.In the opinion of Govindan Nair,J.too,that passage in the judg­ment of our Court was obiter and was not material for the decision of Vasudevan's case.