The Judgment of the Court was delivered by

P. Shanmugam, J.:— The Association of Planters of Kerala and a member of the said association have filed the original petition seeking for a direction to direct the respondent to withdraw exhibit P-2 notification dated November 19, 1995. The said notification is a draft preliminary notification issued under clause (b) of sub-section (1) of Section 5 of the Minimum Wages Act, 1948 (for short “the Act”). The petitioners have also prayed for a writ of prohibition to prohibit the State Government from taking any further steps pursuant to the said notification.

2. The facts of the case briefly stated are as follows: The Government of Kerala issued a draft preliminary notification containing proposals regarding the revision of minimum wages payable to the classes of employees employed in tea, rubber, coffee and cardamom plantations in the State with effect from April 1, 1995. It is stated that approximately four lakhs employees are employed in various plantations in Kerala. The last wage revision was made in the year 1988. As per Section 3 of the Act, the appropriate Government is required to review the minimum rates of wages at intervals not exceeding five years. Hence a proposal in the form of draft preliminary notification dated November 18, 1995, was issued for the information of all persons who are likely to be affected calling upon them to submit their objections and suggestions on or before January 20, 1996. In pursuance to the said notification the petitioners have filed their objections on January 16, 1996. The Government is yet to issue the final notification. Contending that the said notification suffers from jurisdictional error apparent oh the face of the records, the above writ petition is filed. Learned senior counsel appearing on behalf of the petitioners submits that the issuance of exhibit P-2 notification in exercise of jurisdiction conferred on the State as a delegate is ultra vires the provisions of the Act and the Rules, arbitrary, unreasonable and against public interest and violative of Articles 14 and 19(1)(g) of the Constitution of India. With reference to exhibit P-2 notification, he formulates the following objections, viz.:—

(i) giving retrospective effect from April 1, 1995, to the minimum rates of wages;

(ii) fixation of the minimum rate for over-kilos over and above the standard output and incorporate the same as part of minimum wages;

(iii) fixation of service weightage and job differentials for workers.

3. In support of these contentions he relied on the decisions in T.P Sokkalal Ramsait v. Government of Madras . 1969 2 MLJ 366., Gairkhatta Tea Co. Ltd v. State of West Bengal . 1961 2 FLR 477 Gal.., Narottamdas Harjiwandas v. P.B Gowarikar . 1961 2 FLR 380., and Mahendra Chandra Dev v. Government of India . AIR 1971 Tripura 32. and prays for the relief sought for in the original petition. I heard counsel and have gone through the decisions.

4. Section 3 of the Act provides for the fixing of minimum rates of wages. Every State Government is directed to review the rates that had been fixed at such intervals not exceeding five years. Section 5 of the Act outlines the procedure for fixing and revising minimum wages. Before revising the minimum rates of wages the State Government has to by notification publish the proposals (draft preliminary notification) for the information of persons likely to be affected thereby and after considering the objections the State Government shall revise the minimum rates of wages (by final notification). The said final notification, unless otherwise provides, shall come into force on the expiry of three months from the date of its issue.

5. The argument on behalf of the petitioners is that if the proposal, viz., the draft preliminary notification, proposing to give effect to the revision from April 1, 1995, is approved and a final notification is issued, it would be ultra vires Section 5 of the Act. Therefore, they are questioning the proposal (draft notification itself) inasmuch as the Government cannot propose to revise the minimum rates of wages from an anterior date.

6. The petitioners have filed their objection dated January 16, 1996, raising all these issues. The Government is yet to issue a final notification after considering their objections. Therefore, the challenge to exhibit P-2 notification at this stage is premature. None of the decisions cited by senior learned counsel for the petitioners related to the draft notification.

7. The State Government had issued a final notification on an earlier period on the following dates January 21, 1965, March 25, 1970, March 20, 1974, July 4, 1981, March 24, 1987, and August 8, 1988. All the above notifications were more or less in compliance with Section 3 of the Act where the intervals of revision of wages did not exceed the period of five years fixed under Section 3 of the Act. After the last notification dated August 8, 1988, the present proposal dated November 18, 1995, is, as a matter of fact, long overdue. Nearly seven and a half years lapsed from the date of last revision. Even if the retrospective proposal from April 1, 1995, is reckoned, it would be still exceeding the prescribed period of five years under Section 3 of the Act. The minimum wages that could be revised as per Section 3 read with Section 5 of the Act could be retrospective so as to comply with the minimum period of five years. The draft notification under Section 5 proposes a revision from April 1, 1995. Clause (b) of Section 5(1) of the Act does not prohibit the State Government to propose a revision from an anterior date. Sub-section (2) of Section 5 states that the final notification, unless otherwise provides, shall come into force on the expiry of three months from the date of its issue. The argument is that the expression ‘otherwise provides’ would only be referable to days between the date of such final notification and the three months from the date of issue of the final notification. In effect the submission is that a final notification cannot be issued retrospectively. I am unable to discern any such restriction on the State Government as to giving effect to the notification retrospectively. If such a restriction is given it would be contrary to Section 3 of the Act besides imposing a narrow and strict interpretation on the power of the State Government to revise the rates of minimum wages periodically with intervals of five years. While Section 3 enables the continuance of the rate of minimum wages until the revision is made’, it would be reasonable to follow and restore the revision from the date of its expiry.

8. Minimum wages is not contractual but statutory. Failure to fix or revise is not only a statutory violation but is a breach of the fundamental right enshrined in Article 23 of the Constitution of India. If a workman is paid less than the minimum wages it can be legitimately presumed that he is acting under the force of some compulsion as he has no choice. The Supreme Court in People's Union for Democratic Rights v. Union of India, held that (at page 29):

“We are, therefore, of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words ‘forced labour’ under Article 23….

Before leaving this subject, we may point out with all the emphasis at our command that whenever any fundamental right which is enforceable against private individuals such as, for example, a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take the necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same.”

9. A duty is, therefore, cast on the State by the provisions of the Act and Article 23 to fix and revise the minimum rate of wages. The continuance of rate of wages fixed from 1993 onwards which would be less than the minimum payable will be illegal and the workers are entitled to the retrospective fixation or revision from the date it is due for revision. Otherwise Section 3(1)(b) would become meaningless and redundant. If this background of Section 5(2) is read it would make clear that the revision can be related to an anterior date. If not provided it would automatically come into force on the third month of the issue. This is the only purport of the provision. The principle of interpretation of legislation made under power conferred by statute is that it must be construed in the light of the enabling statute generally and particularly in conformity with its substantive provision. An Act comes into force normally prospectively unless by express words or by necessary implication it appears that that was the intention of the Legislature. Statutes of declaratory nature are prima facie retrospective in operation. Applying these principles I find that by express words, viz., “otherwise provided” and by necessary implication read with Section 3(1)(b) the State is entitled to revise the minimum rate of wages retrospectively. Fixation and revision of rates of wages and the enabling provisions are declaratory in nature.

10. The Supreme Court in Ministry of Labour and Rehabilitation v. Tiffin's Barytes Asbestos and Paints Ltd., held that notification fixing minimum wages are not to be lightly interfered with under Article 226 of the Constitution of India. In that context Supreme Court held (at page 161):

“A notification fixing minimum wages, in a country where wages are already minimal, should not be interfered with under Article 226 of the Constitution except on the most substantial grounds. The legislation is a social welfare legislation undertaken to further the Directive Principles of State Policy and action taken pursuant to it cannot be struck down on mere technicalities.”

11. A similar provision, viz., Section 17-A of the Industrial Disputes Act came up for consideration before the Supreme Court. Sub-section (4) of Section 17-A provides for the coming into force of the award from such date as may be specified and where date is so specified it shall come into force either on the expiry of 30 days (sub-section (1)) or as provided by sub-section, i.e, 15 days or ninety days respectively. The Supreme Court held that under Section 17-A(4) it is a matter of discretion for the Tribunal to decide having regard to the circumstances of the case from which date the award should come into operation. The court's interference is called for only when it is unreasonably exercised.

12. In Mizar Govinda Annappa Pai and Sons v. State of Karnataka, the learned judge of the Karnataka High Court has taken the view that the power of the Government under Section 5(2) of the Act to issue a notification revising the minimum wages includes power to give retrospective effect to notification. According to the said judgment, the scheme of the Act enables the State Government to give retrospective effect to the revision of wages. It is also held that if the Government has got the power to issue the notification only with prospective effect, when the rights of the workmen for the increased wages consequent on the revision could be denied by procrastination in the deliberations of the committee and the consequential issue of notification. I am in full agreement with this view.

13. All the decisions referred to above on behalf of the petitioners do not go into the scheme of the Act and also do not refer to the requirement of Section 3 which states that a revision shall be made at intervals not exceeding five years. Section 5(2) enables the State Government to give effect to the proposals retrospectively as the State Government is entitled to “otherwise provided” under the expression to give retrospective effect to the notification.

14. With reference to the other point, that is the proposal to fix a minimum rate for over-kilos over and above the standard output, it is admitted that such over-kilo rates formed part of the minimum wages in the earlier notification, but they were not included in 1950 and 1971 notifications. If these over-kilo rates were prescribed in the previous notifications, 1 do not see any ground to countenance the argument that it is an incentive and, therefore, it would not form part of the minimum wages. Wages have been defined under Section 2(h) of the Act as to mean all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied were fulfilled, be payable to a person employed in respect of his employment. Section 4 deals with the composition of minimum rates of wages. Section 17 says that the minimum rate of wages for piece work shall not be less than minimum time rate. In this context, the decision referred to on behalf of the petitioners, viz., Manganese Ore (India) Ltd. v. Chandi Lal Sadu, may not apply to the facts of this case. The point referred related to attendance bonus which was considered as an incentive to secure regular attendance. But we are concerned with minimum rates for over the standard output. Learned senior counsel submitted that they are objecting only to clause 1(c)(iii) to Schedule I Under this clause 37 paise per kg. for the first 10 kgs. over and above the standard output and 41 paise per kg. for the next 10 kgs. and 47 paise per kg. thereafter. Thus, over and above a particular standard output the minimum piece rates are granted or are proposed. According to the petitioners, this is only an incentive to bring more crops. Whether it is an incentive or not, a particular rate is fixed over and above the standard output. This cannot be termed as an incentive. It can only be a part of minimum rate of wages for the over-kilos.

15. The next point is that the preliminary notification provides for job differential at specified rates for different types of work by introducing service weightage for daily rated and monthly rated workers. No serious arguments are raised to substantiate the point as to how this would not come under the purview of the minimum wages rates. As the petitioners have submitted detailed objections and suggestions on these aspects, the same being under consideration by the Government it may not be worthwhile to go into the merits of the contentions of the petitioners in detail at this stage. As the argument mainly rested on the jurisdictional question of the retrospective effect of a notification, the same has been dealt with.

16. Learned senior counsel referred to a statement of the Minister for Labour appearing in Malayala Manorama dated November 19, 1995. According to the said report, the Minister has stated that notification has been issued refixing the wages of plantation workers under the Minimum Wages Act with effect from April 1, 1995. This could only be reference to the draft notification dated November 18, 1995. From this it could not be inferred that the Government had decided even on November 19, 1995, to give effect to the notification from April 1, 1995. It was only a proposal stage. For the reasons stated above, I find that the original petition is not maintainable. The petitioners, having filed their objections, are not entitled to pursue the relief to quash the preliminary notification. The original petition is premature. I am also of the view that the contention that the proposal to give retrospective effect to the revision of minimum wages is without jurisdiction cannot be accepted for the reasons stated above. Hence, the original petition is dismissed.

17. Petition Dismissed.