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Vasudevan And Others v. State Of Kerala .
Judgment Summary — M.S. Menon, J.
Factual and Procedural Background
These petitions challenge the validity of a Government of Kerala notification dated 26-2-1958 issued under S. 3(1)(a) of the Minimum Wages Act, 1948. The impugned notification was published in the Kerala Gazette on 4-3-1958 and fixed minimum rates of wages payable to employees in agricultural operations in the territories constituting the Malabar District (as defined by S. 5(2) of the States Reorganisation Act, 1956).
Prior to the 26-2-1958 notification, the Government did not appoint committees under S. 5(1)(a) of the Minimum Wages Act but instead published a proposal under S. 5(1)(b) in the Kerala Gazette (notification dated 17-12-1957, published 24-12-1957). That proposal stated that it would be "taken into consideration after two months" from publication and that representations received "before the expiry of the said period" would be considered.
Petitioners contended that the 17-12-1957 proposal-notification did not comply with S. 5(1)(b) because it failed to specify a date (not less than two months from publication) on which proposals would be taken into consideration, and therefore the subsequent fixation (notification of 26-2-1958 / published 4-3-1958) was invalid. The Government argued (inter alia) that fixation of wages is an administrative act not amenable to judicial review under Article 226.
Legal Issues Presented
- Whether the Government's proposal-notification of 17-12-1957 complied with S. 5(1)(b) of the Minimum Wages Act, 1948 by specifying a date (not less than two months from publication) on which the proposals would be taken into consideration, and whether non-compliance rendered the subsequent notification of 26-2-1958 (published 4-3-1958) invalid.
- Whether fixation of minimum rates of wages by the appropriate Government is immune from judicial review under Article 226 of the Constitution such that ultra vires fixation cannot be declared by the court.
Arguments of the Parties
Petitioners' Arguments
- The proposal-notification dated 17-12-1957 did not comply with S. 5(1)(b) because it failed to "specify a date, not less than two months from the date of the notification, on which the proposals will be taken into consideration." Instead it stated only that proposals would be taken into consideration "after two months" and that representations received "before the expiry of the said period" would be considered.
- Because the right to make representations under S. 5(2) extends to the date specified in the S. 5(1)(b) notification, the Government could not lawfully accept representations up to one date and then take the proposals into consideration on some later unspecified date; strict compliance was required.
- Other contentions were advanced but are not detailed in the opinion and were not considered by the court in its decision.
Government's Arguments
- The Government adopted the procedure under S. 5(1)(b) (publication of proposals) rather than appointing committees under S. 5(1)(a); implicitly the Government treated the published notice as sufficient to meet statutory requirements.
- It was suggested by the learned Government Pleader that fixation of minimum rates of wages is only an administrative act and therefore not amenable to judicial review under Article 226 of the Constitution.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Howard v. Bodington ((1877) 2 P.D 203) | Establishes the general rule that, to decide whether a statutory provision is imperative or directory, one must consider the subject-matter, the importance of the disregarded provision, and its relation to the general object of the Act. | The court relied on this rule to conclude that the requirement in S. 5(1)(b) to "specify a date" is mandatory (imperative) rather than merely directory, supporting the conclusion that the 17-12-1957 notification was defective for failing to specify a date. |
| Punchiri Boat Service Ltd. v. State of Travancore-Cochin, 1955 Ker LT 686 (AIR 1955 Trav-Co. 97) | Holds that fixation of minimum rates by the appropriate Government is an administrative act final as to quantum, but if such fixation is ultra vires the Act it can be declared and corrected by the court under Articles 226 and/or 227 of the Constitution. | The court cited this authority to reject the Government Pleader's submission that wage fixation is wholly non-justiciable; the citation supports the proposition that ultra vires fixation is subject to judicial review and therefore the petitions could be entertained. |
Court's Reasoning and Analysis
The court examined the text of S. 5(1)(b) of the Minimum Wages Act, 1948 which mandates that the appropriate Government, by notification, shall "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."
The Government's proposal-notification of 17-12-1957 did not "specify a date" as required; it stated only that the proposals would be taken into consideration "after two months" and that representations would be considered if received "before the expiry of the said period." The court found that formulation inconsistent with S. 5(1)(b) because:
- The statutory scheme grants the right to make representations up to the date specified in the notification under S. 5(1)(b); that right cannot be confined to a date earlier than the date on which proposals are to be taken into consideration.
- It is impermissible for the Government to receive representations up to one date and then take the proposals into consideration on an unspecified later date; the timestamp for consideration must be expressly specified.
To determine whether the requirement was mandatory, the court invoked the principle from Howard v. Bodington that one must assess whether the provision is imperative or directory by considering the subject-matter and the importance of the provision in relation to the Act's object. The court found no indication in the Act's wording or surrounding circumstances that the requirement should be given a permissive interpretation.
The court also relied on statutory-construction authorities (Sutherland and Crawford, as quoted in the opinion) to underscore that where authority is granted to public officers to act in a particular manner, the prescribed manner is jurisdictional and mandatory unless the statute indicates otherwise.
Applying these principles, the court concluded that strict compliance with S. 5(1)(b) was required and that the 17-12-1957 proposal-notification's failure to specify the requisite date rendered it defective. Because the 26-2-1958 notification was premised on that defective procedural step, it was unsustainable.
The court addressed the Government's contention that wage fixation is purely administrative and not subject to Article 226 review by citing Punchiri Boat Service Ltd., which recognizes that although fixation as to quantum is an administrative final act, an ultra vires fixation is amenable to declaration and correction by the court. That authority supported entertaining the petitions insofar as an allegation of ultra vires procedure was raised.
The court further observed that other contentions raised by the petitioners were unnecessary to decide given the finding on S. 5(1)(b) and were therefore not considered.
Holding and Implications
HOLDING: The petitions were allowed. The court held that the proposal-notification of 17-12-1957 did not comply with S. 5(1)(b) of the Minimum Wages Act, 1948 because it failed to specify a date (not less than two months from publication) on which proposals would be taken into consideration, and consequently the subsequent notification of 26-2-1958 (published 4-3-1958) fixing minimum wages was unsustainable.
IMPLICATIONS: The direct effect is that the challenged notification fixing minimum wages for the Malabar District was set aside by the court and the petitions succeeded. The court made no order as to costs. The opinion does not purport to establish any broader legal principle beyond the application of existing rules on mandatory statutory procedure and the established jurisdiction to correct ultra vires administrative action under Article 226; no new precedent beyond the judgment's reasoning is announced.
M.S Menon, J.:— These petitions were heard together. They challenge the validity of a notification of the Government of Kerala dated 26-2-1958 under S. 3(1)(a) of the Minimum Wages Act, 1948 (Central Act XII of 1948). That notification was published in the Kerala Gazette on 4-3-1958 and (omitting the schedule thereto) reads as follows:
“In exercise of the powers conferred by cl. (a) of sub-sec. (1) of Section 3 of the Minimum Wages Act, 1948 (Central Act XI of 1948) Government are hereby pleased to fix the minimum rates of wages payable to the employees in Agricultural Operations in the territories referred to in Section 5(2) of the States Re-organisation Act, 1956 (Central Act XXXVII of 1956) as Malabar District, the same having been previously published as required by cl. (b) of sub-sec. (1) of Section 5 of the said Act.
This notification shall come into force with effect from the date of this notification.”
2. The territories which constitute the Malabar District in the State of Kerala under S. 5(2) of the States Reorganisation Act, 1956, are the territories comprised in the old Malabar District of the Madras State, excluding the islands of Laccadives and Minicoy and the Kasargod Taluk of the South Kanara District. Sub-section (1) of Section 5 of the Minimum Wages Act, 1948 provides:
“In fixing the 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 ???—
(a) appoint as many committees and sub-committees as it considers necessary to hold enquiries 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. and sub-sec. (2) (omitting the proviso thereto):
“After considering the advice of the committee or committees appointed under cl. (a) of sub-sec. (1), or as the case may be, all representations received by it before the date specified in the notification under cl. (b) of that sub-section, the appropriate Government shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue.”
4. The method adopted by the Government before issuing the notification dated 26-2-1958 was not to appoint committees and sub-committees under sub-sec. (1)(a) of S. 5 but to publish a notification under sub-sec. (1)(b) in the Kerala Gazette dated 24-12-1957. The notification is dated 17-12-1957 and (omitting the schedule thereto) reads as follows:
“The following proposal regarding minimum wages which the Government of Kerala proposed to fix in exercise of the powers conferred by cl. (a) of sub-sec. (1) of Section 3 of the Minimum Wages Act, 1948 (Central Act XI of 1948) as payable to the employees engaged in employment in Agriculture in the territories referred to in Section 5(2) of the States Reorganisation Act, 1956 (Central Act XXXVII of 1956) as Malabar District, is hereby published for the information of all persons likely to be affected thereby as required by cl. (b) of sub-sec. (1) of S.S of the said Minimum Wages Act.
5. Notice is given that the proposal will be taken into consideration after two months from the date of publication of this notification and that any representation that may be received from any person with respect to the said proposal before the expiry of the above period will be considered by the Government.”
6. The first contention urged before us on behalf of the petitioners is that this notification is not in consonance with S. 5(1)(b) of the Act as it does not specify the date on which the proposals will be taken into consideration. We have come to the conclusion that the contention has to be upheld.
7. All that the notification says is that their proposals will be taken into consideration “after two months” from the date of the publication of the notification and that any representation that may be received before the expiry of the said period, will be considered by the Government. This is certainly not compliance with the provisions of. Sec. 5(1)(b) which directs that the notification should “specify a date not less than two months from the date of the notification” on which the proposals will be taken into consideration. It has to be noted that under sub-sec. (2) of Sec. 5 the right to make representations extends to the date specified in the notification under S. 5(1)(b) and that right cannot be confined to a date anterior to it. In other words, it is not possible for the Government to say that they will receive representations up to a particular date and that the proposals will be taken into consideration not on that date but on some date thereafter.
8. The general rule cannot be better stated than in the words of Lord Penzance in Howard v. Bodington:
“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.” ((1877) 2 P.D 203)
9. We see no reason why it a case like this a command to do a thing in a particular manner should not imply a prohibition to do it in any other manner.
10. Sutherland puts the matter thus:
“Where authority is granted to public officers to do a thing in a certain way, the manner of doing the thing is mandatory, or jurisdictional, and, a limitation on the authority of the officer, even though the doing of the thing in the first place may be discretionary.” (Statutory Construction, Volume 3, p. 89).
11. Crawford quotes the following passage from an American decision:
“It is a rule of statutory construction that where a statute is framed in terms of command and there is no indication from the nature of wording of the Act or the surrounding circumstances that it is to receive a permissive interpretation, it will be construed as peremptory.”
12. and says that it embodies a succinct summary of an established rule (Statutory Construction, page 516). We are unable to see any indication in the nature or wording of the Act before us or the surrounding circumstances which would suggest anything other than that the Legislature intended a strict compliance with the provisions of sub-sec. (1)(b) of Section 5 of the Minimum Wages Act, 1948.
13. If the notification of 17-12-1957 is defective in the manner indicated above, it must follow that the notification of 4-3-1958 is unsustainable and that these petitions have to be allowed Judgment accordingly, though in the circumstances of the case without any order as to costs.
14. In the view we have taken, it is unnecessary to consider the other contentions advanced on behalf of the petitioners and they are not considered in this judgment. It was suggested by the learned Government Pleader that the fixation of minimum rates of wages under the Act is only an administrative act and is not hence amenable to the jurisdiction of this court under Article 226 of the Constitution. As stated in Punchiri Boat Service Ltd. v. State of Travancore-Cochin, 1955 Ker LT 686 : ((S) AIR 1955 Trav-Co. 97):
“The fixation of minimum rates of wages in respect of any scheduled employment by the appropriate Government is, no doubt, an administrative act which is final, and is not subject to judicial review on the question of the quantum of the wages fixed. If, however, the fixation by the Government is ultra vires their powers under the Act it admits of being so declared and corrected by the court under Article 226 and/or 227 of the Constitution.”
KC/D.H.Z
15. Petitions allowed.
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