UTKAL CHAMBER OF COMMERCE Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners in these writ applications under Articles 226 and 227 of the Constitution of India seek invalidation of notifications (Annexure -U series) dated 30 -6 -1990 issued by the State Government under Section 5(2) read with Section 3(1)(6) of the Minimum Wages Act, 1948, (hereinafter referred to as the 'Act'; fixing the minimum wages payable to unskilled employees employed in 75 scheduled employments at Rs. 25/ - per day as infracting Article 14 of the Constitution of India and the provisions contained in Section 3(1)(b) and Sub -sections (1) and (2) of Section 5 and Section 9 of the Act and Rules 15 and 16 of the Orissa Minimum Wages Rules, 1954 (hereinafter referred to as the 'Rules') After stating the facts and submissions their Lordships held as follows: 8. The Act came to be enacted to give effect to the resolutions passed by the Minimum Wages Fixing Machinery Convention held at Geneva in 1928. The object of those resolutions as stated in Article 224 is to fix the minimum wages in industries in which no arrangements exist for the effective Regulation of wages by collective agreements or otherwise and wages are exceptionally low. Its main object is to prevent sweated labour as well as exploitation of unorganised labour. It proceeds on the basis that it is the duty of the State to see that at least minimum wages are paid to the employees irrespective of the capacity of the industry or unit to pay the same. The language of Article 43 of the Constitution is that the State should endeavour to secure by suitable legislation of economic organisation in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work, ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The fixing of minimum wages is just the first step in that direction. In course of time the State has to take many more steps to implement that mandate. Minimum wage does not mean wage just sufficient for bare sustenance. At present the conception of a minimum wage is a wage which is somewhat intermediate of a wage which is just sufficient for bare sustenance and a fare wage. That concept includes not only the wage sufficient to meet the bare sustenance of an employee and his family, it also includes expenses necessary for his other primary needs tax such as medicine expenses, expenses to meet some education for his children and to preserve his efficiency as a worker. The concept of minimum wage is likely to undergo a change with the growth of our economy and with the change in the standard of living. It is not a static concept. Its concommitants must necessarily increase with the progress of the society. It is likely to differ from place to place and from industry to industry. Since it is impossible for the legislature to undertake the tax of fixing minimum wages in respect any industry much less in respect of any employment, that proceeds must necessarily be left to the Government in charge of the administration of law State. The legislature has to determine the legislative a policy enumerated with sufficient clearness and formulate the same as a binding rule of conduct. The Government is charged with the duty of implementing that policy. The Government, to carry out affectively the purpose of the enactment, has to decide with reference to legal conditions whether it is desirable that minimum wages should be filed in regard to a particular grade or Industry in any locality. The power conferred on the Government is subordinate and for the purpose of carrying out the objects of the Act. 9. As a safeguard against exercise of uncontrolled or arbitrary power by the Government, the Legislature has by Section 4 laid down that the minimum rate of wages is to consist of and by Section 5, it has provided the procedure for fixing minimum wages by providing two modes for collecting the necessary data and information ; one is contained in Section 5(1)(a) and the other in Section 5(1)(b). In either case, it is merely a procedure for gathering the necessary data and information. Discretion to select any one of the procedures prescribed for collecting the data is left to the government. XX XX XX After discussing the points raised and it was held : Lest the authority entrusted to the Government be exercised in an uncontrolled and arbitrary manner, safeguards are built in Section 5 by requiring the Government to follow either of the modes prescribed in Clauses (a) and (b) of Sub -Section (1) and where it chooses not to appoint any committee, to publish its proposal for information of persons likely to be affected thereby inviting objections and representations to the proposal and consider the advice of the Committee if the mode prescribed in Clause (a) is followed and to consider the representations and the advice of the Advisory Board if the mode prescribed in Clause (b) is followed. By way of further safeguard provision is made in Section 9 regulating the Constitution of the Committee and the Advisory Board so that the Committee or the Advisory Board renders advice independently and fairly.

(2.) In none of the reported cases decided by the High Courts, and the Supreme Court could we tome across a case where the Minister of State, Labour, was appointed as an independent member of the Board or the Committee. Nomination of Government officials as independent members not being per se invalid, challenge has to be considered on its own peculiar facts. Can the Minister of State, Labour, who has espoused the proposal, piloted the proposal, expressed categorical commitment to the proposal, be considered as an independent member ? Each member is expected to act fairly and independently in the matter of giving advice to the Government, The proposal was in respect of 79 scheduled employments, with many of which Government was directly associated. His advice might go against the employers having regard to his interest in the Government; and especially when he has already committed himself categorically, can he be called an independent member ? At this stage, we would refer to his involvement Which is gathered from the file relating to fixing of minimum wages that was produced by the learned Advocate -General. On 23 -3 -1990, he gave the following direction: ' If the Chief Minister declared on the floor of the Assembly to fix up the minimum wages at Rs. 25/ -, so the minimum wage must be Rs. 26/ -,' (underlining supplied) That day the Chief Minister passed an order that minimum wages at the rate of Rs. 25 per day equal to male and females to be implemented from 1 -4 -90 and strict compliance should be assured. These two directions of the Minister of State, Labour, and the Chief Minister considerably disturb us while adjudging the matter. Hence, on this premise, we are of the view that the Minister of State, Labour, cannot be said to have the character of an independent member to fairly and independently advise the Government in the matter of fixation of minimum wages. 'Worse was his appointment as Chairman.

(3.) We are to consider the question if the nomination of Government officers as independent members was valid on the facts of each case without reference to the outcome. Justice must not only be done but must seem to be done. Appearance of impartiality being important, the member should not only act impartially but there must be appearance of it. It has been said 'In truth, within the context of service to the community the appearance is the more important of the two. The Judge who gives the right Judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at alt' (lord Devlin in 'The Judge') 17. Can the Secretary, Forest, Fisheries and Animal Husbandry Department, Secretary, Irrigation Department, Secretary, Energy Department. Secretary. Works Department, who had large and various employments under them as would be evident from the fact that the employers -representatives nominated ware Chief Engineer, Roads, Engineer -in -Chief, Irrigation, Managing Director, Orissa Forest Corporation, be considered as independent members ? 18. There were large number of Secretaries to Government and high officials unconnected with the employments who would be nominated as independent members so that the nominations should not only appear as independent, but no doubt could be entertained as to their independence and impartiality.