1. These four writ petitions raise three contentions which will have to be dealt with. The first is that the Minimum Wages Act, 1948, is not applicable to the daily-rated employees and the second is that cost of living allowance is not a part of minimum wages and the third is that the cost of living allowance will be operative only after it is published in the Official Gazette as required under S. 5 of the Minimum Wages Act, 1948. I have heard Sri D.B Yevatekar, learned counsel for the petitioners in support of the petitions, learned Asstistant Government Pleader Sri. P.B Varale for respondents 1 and 4 and Sri P.L Shahane for respondents 5 to 11 in Writ Petition No. 2975 of 1992. Other parties are formal parties as have no part in the contest.

2. The petitioners are the co-operative societies having powerlooms operated by its members at Beed. Some employees working on those powerlooms applied to the Authority under the Minimum Wages Act for a direction that, petitioners-societies be directed to pay the minimum wages since they are not being paid. The direction sought was granted by the Authority under the Payment of Wages Act vide its order, dated 14 May, 1986. This has been challenged in these writ petitions.

3. Sri D.B Yevatekar, learned counsel for the petitioners, firstly submitted that respondents 5 to 11 are daily-rated employees and have not been granted permanent status either by agreement or by statute and, therefore, are not entitled for the benefits of the Minimum Wages Act, 1948. In support of his contention. Sri Yevatekar relied on the judgment of the Supreme Court in the case of Workmen of Orient Paper Mills, Ltd. v. Orient Paper Mills, Ltd., [A.I.R 1969 S.C 976], and in particular Para 10 of the said judgment. It is true that, in Para 10 of the said judgment the learned Judges of the Supreme Court were pleased to observe that by the very nature of employment being casual, it can be presumed that a casual worker is on a lower footing and cannot expect the same wages as a permanent employee. The question which was under consideration of the Supreme Court was whether the Tribunal was justified in fixing lower rate for the casual workers and in not granting the pay packet of Rs. 95 per mensem which is granted to other workers. The judgment nowhere lays down proposition that the casual workers or daily-rated workers are not to be given benefit of the Minimum Wages Act.

4. Section 2(i) of the Minimum Wages Act, 1948, defines — “employee” to the following effect:

(i) ‘Employee’ means any person who is employed for hire or reward to do any work skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person, to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being permises under the control (and management of that other person; and includes for the purposes of Ss, 20, 21, 22, 22-A, 22-B, 22-C and 22-D any person who has been an employee and who has ceased to be so by reason of superannuation, retirement, dismissal, removal, discharge, termination of his service, or otherwise howsoever;) and also includes an employee declared to be an employee by the appropriate Government; but does not include any member of the armed forces of the Union.”

The definition appears to include all persons in the scheduled employment in respect of which minimum rates of wages have been fixed and only carves out the members of the armed forces of the Union and keeps them out of the purview of the Act. It includes a person employed for hire or reward and an out-worker also. The preamble of the Act shows its purpose to be providing for fixing minimum rates of wages in certain employments. The Act naturally is expected to fix the minimum wages in respect of employees whether they are casual, daily-rated, temporary or permanent. It is not permissible to take out any of these classes from the operation of the Minimum Wages Act, 1948. Therefore, there is no merit in the submission made by Sri D.B Yevatekar that the Minimum Wages Act is not applicable to the daily-rated employees. Sri Shahane, appearing for respondents 5 to 11 contested the claim of the petitioners that they are daily-rated employees but it is not necessary for me to go into this aspect of the case since I am holding that the Minimum Wages Act is applicable to both permanent employees as well as casual workers.

5. Sri Yevatekar strenuously contended that the special allowance as claimed by the workers is not a part of the minimum wages and in the alternative, further submitted that, assuming that it is a part of the minimum wages, any such allowance shall not be operative unless it is determined and then published in the Official Gazette as is required by the procedure laid down under S. 5 of the Act, 1948. According to Sri Yevatekar, whatever may be the constituents of the minimum wages those will have to be determined in accordance with the procedure laid down under S. 5 of the Act and if that procedure is not followed, any order directing the payment at that rate would be without jurisdiction.

6. The concept of the minimum wages as defined by S. 4 consists of two things. The first one is the basic rate of wages and the second one is the special allowance at a rate to be adjusted at certain intervals. There was some debate on the question whether minimum wages should be linked to the cost of living but since the cost of living is ever increasing that would have been required the fixation of the rates at frequent intervals. Therefore, it appears that the Legislature has evolved a mechanism under which certain procedure was prescribed for fixing the basic rate of minimum wages and addition of that wage by the special allowance linked with the cost of living was left to be determined by the authorities under the Act and this procedure was accorded judicial approval by the Supreme Court in the case of Hydro (Engineers) Pvt. Ltd. v. Workmen, [A.I.R 1969 S.C 182]. Learned Judges were pleased to observe thus:

“It is thus clear that the concept of minimum wage does take in the factor of the prevailing cost of essential commodities whenever such minimum wage is to be fixed. The idea of fixing such wage in the light of cost of living at a particular juncture of time and of neutralizing the rising prices of essential commodities by linking up scales of minmum wages with the cost of living index cannot therefore, be said to be alien to the concept of a minimum wage.”

7. Plain reading of S. 4 negatives propositions sought to be advanced by Sri Yevatekar. It lays down that the minimum wages fixed by the appropriate Government may consist of basic rates of wages and special allowance at a rate to be adjusted at such intervals and in such manner as the appropriate Government may direct and also on 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, were so authorised. Therefore, the Government may either lay down the basic rates of wages and special allowances by the same process or it may fix the basic rate and so that it shall be either with or without the cost of living allowance. Section 5 of the Minimum Wages Act, 1948, prescribes a procedure for fixing and revising minimum wages. It calls for appointment of committees for holding enquries for the said purpose, for publishing proposals and proposals for information of the persons likely to be affected and then publish the minimum rates of wages so fixed in the Official Gazette. When the minimum rates of wages in a particular scheduled employment are to be fixed the rates of wages prevailing in those industries in a particular area and other factors are to be taken into consideration by the committee appointed under S. 5 of the Act. The persons affected are free to take objection or submit suggestions in respect of the proposals when published in the Official Gazette. Since this relates to the basic rates of wages this procedure is very much necessary. So far allowance is concerned, it is linked with the cost of living and does not contemplate such an elaborate enquiry. It will have to be changed according to the cost of living at intervals prescribed by the Government. If the same elaborate enquiry by appointment of the committee, etc., as laid down in S. 5 is prescribed for this also, it is likely to take much time and the purpose of compensating dearness by the cost of living allowance would itself likely to be defeated. Sub-section (2) of S. 5 authorises the competent authority to fix the cost of living allowance and this can be done on the basis of data available with such authority and elaborate procedure of S. 5 wholly unnecessary and, therefore, it is not prescribed by Legislature.

8. Sri Yevatekar did not dispute the fact that the allowance was fixed at a particular rate for respondents 5 to 11. His contention is only that, these rates of allowance are not published in the Official Gazette as required under S. 5 of the Act and, therefore, they are not applicable. Since the procedure prescribed under S. 5 is not necessary for firing the cost of living allowance by the competent authority at intervals specified by the appropriate Government, the contention of learned counsel will have to be rejected.

9. Sri Yevatekar then contended that the petitioner-society was sponsored by the Marathwada Development Corporation, a company owned by the State Government, and since the State Government has not given assured fiancial support, they are not in a position to pay the wages prescribed under the Act. The financial condition of the petitioner can be sympathized but it does not absolve the petitioner from the liability to pay the minimum wages. While fixing lie minimum wages incapacity of the management to carry on the business cannot be a consideration ruled the Supreme Court in the case of Hydro (Engineers) Pvt. Ltd. v. Workmen, [A.I.R 1969 S.C 182] (vide supra), learned Judges were pleased to observe:

“In fixing the minimum wages, the fact that an employer might find it difficult to carry on his business on the basis of minimum wages is an irrelevant consideration. …. Therefore, the award cannot be attacked on the ground that the Tribunal failed to take into consideration the financial capacity of the employer.”

If the paying capacity cannot be a consideration for fixing the minimum wages, it cannot be a consideration for considering the liability to pay the minimum wages. I, therefore, do not find that on the ground of incapacity to pay the petitioners can be exempted from the liability. The wirt petitions, therefore, stand dismissed summarily. However, looking to the facts of the case and looking to the admitted fact that the petitioners and similar societies are not now in good financial condition, I grant six months' time for the petitioners to pay the arrears of the minimum wages which they have not paid till today. The amount deposited by interim order of this Court be allowed to be withdrawn by the respondents. The interim relief stands vacated.