9911796707
TMI Blog1953 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ase in the basic salary and dearness allowance and threatening, that in a case of non-compliance within fourteen days, a strike ballot would be taken. Vide Ex. A annexed to the reply affidavit in support of the petition. A copy of this resolution was sent to the owners of all the estates. On 7-6-1951 the petitioner replied that with a view to secure an agreed settlement the estates had agreed to accept the union as entitled to make demands and failing redress, to proceed to secure adjudication by an Industrial Tribunal without further reference to this organisation ; and that therefore the union should withdraw the notice and work for settlement, Ex. B. To this, the union replied by Ex. C dated 14-6-1951 that no action would be taken on their notice, Ex. A till 15-7-1951. Meantime on 10-6-1051, the Malabar District Estates Workers' Union passed a resolution demanding an increase in wages, Ex. P. The Government thereupon started conciliation proceedings and on 29-9-1951 the petitioner received notice that there would be a conference of the employer and employees on 16th and 17th October at Coonoor and on the 19th at Valparai. The parties met but failed to reach an agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar matter, Act 11 of 1948 supersedes 'eo extanti' the earlier enactment, Act 14 of 1947; and that fixation of wages cannot therefore be a matter of reference under the latter Act. The question for determination then is whether Act 14 of 1947 can be held to have been repealed by implication by Act 11 of 1948. 3. The rules of construction bearing on this point are well settled end may thus be stated: (1) Law does not favour repeal by implication and It is only in the last resort that courts hold that one enactment is repealed by another, even without express words. A sufficient Act ought not to be held to be repealed by implication without some strong reason per Lord Bramwell in -- 'G. W. Rly. Co v. Swindon and Cheltenham Rly. Co.', (1884) 9 AC 787 at p. 809 (A). Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implled as per A.L. Smith J. in -- 'Kutner v. Phillips'; l891-2 QB 267 at p. 272 (B). If It is possible, it us my duty so to read the section as not to repeal of the earlier Act per Farwell J. in--Chance, In re', 1936 Oh 266 at p. 270 (C). Repeal by implica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the investigation and settlement of industrial disputes. Under Section 2(h) industrial dispute is defined as meaning any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. The power of the Government to refer a dispute to a Tribunal arises under Section 10 If any industrial dispute exists or is apprehended . The Tribunal hearing -references under the Act acts judicially; Section 11 of the Act makes several provisions of the Civil Procedure Code applicable to the proceedings before it; and its decision was, prior to the enactment of the Industrial Disputes-(Appellate) Tribunal Act 48 of 1950, open to consideration by the High Court under Article 226 of the Constitution and after that Act, it is open-to appeal to the Appellate Tribunal. The award, when final, is binding on both the employer and the employees under Section 15 (2) and Section 18 (a) and their representatives under Section 18 (c) and (d) for such period as may be specified by the Government under Section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to revise the-rates from time to time. Section 22 provides that any employer who pays less than the minimum wages fixed under the Act shall be liable for certain penalties. Section 25 enacts that any contract whereby an employee relinquishes or reduces this right to minimum wages under the Act shall, to that extent, be null and void. 7. It will be seen from the foregoing summary of the statutory provisions that there are vital differences between the two enactments, both as regards their purpose and their scope. The object of Act 14 of 1947 is to prevent strikes and lock outs, so that production might not suffer and consistently with that object, a reference under the Act could be made only when there is a dispute actual or apprehended. On the other hand, the object' of Act 11 of 1948 is to protect unorganised and dumb labour from being exploited and for achieving that object the Government is to take action suo motu and fix wages within the time mentioned in the statute. While the adjudication of disputes tinder Act 14 of 1947 is to be by a Tribunal exercising judicial functions, the fixation of wages by the Government under Act 11 of 1948 is administrative in character. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiries into the same question, one by the Committee under Section 5 of Act 11 of 1948, and another by the Tribunal under Act 14 of 1947 with the 'possibility of conflicting decisions; and that therefore the reason of the thing required that the jurisdiction under Minimum Wages Act should be exclusive and final. Mr. K. Rajah Aiyar further referred to various anomalies that would arise in case Act 14 of 1947 is held not to have been repealed 'eo extanti' by Act 11 of 1948. What would happen, he asked, if after minimum wages are fixed under Act 11 of 1948 the Tribunal fixes a different figure? Does the fixation under Act 11 of 1948 become automatically null and void? If so, where is the statutory provision for it? Suppose again, he asked, the Government takes action under Section 10 of Act 11 of 1948 and revises the rates after the Tribunal has fixed wages in a reference under Act 14 of 1947, which of them is to prevail? The award will be binding under Act 14 of 1947 for the period specified in Section 19(3) of the Act; therefore during that period the revision under Section 10 cannot take effect; and the result is to render Section 10 inoperative. All this conflict c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se passages it will be clear that the tendency was to fix minimum wages at the level of living wage . It is this view that is reflected in the Minimum Wages Act. Section 4(1) of the Act which deals with this matter is as follows: Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under Section 3 may consist of; (I) a basic rate of wages and a special allowance at a rate to be adjusted, at such Intervals and in such manner as the appropriate Government may .direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the 'cost of living allowance'); or (ii) 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, where so authorised; or (iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any. 11. It will be seen that the rate of wages under the Act must differ as it might be determined under one or another of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of living wages to workmen. The fixation is made from' the point of view of the workmen. The capacity, of the-employer does not enter into the calculation. It may be that he cannot afford to pay at the rate fixed and may even be obliged to close down; but so long as he continues to employ, he cannot pay less. Vide Section 22. A rate fixed under those conditions has to be the minimum ; and that is why its determination is entrusted to administrative authorities. After wages are fixed under Act 11 of 1948, It may happen that the workmen are content to accept them, in which case no further question would arise. But if they do not accept it and ask for more, then there is an industrial dispute; and under Section 10 of Act 14 of 1947, the Government gets jurisdiction to refer it for adjudication by a Tribunal. The point for decision by the Tribunal is as to fair wages payable to workmen and that must depend on the facts of each case. The minimum wages fixed under Act 11 of 1948 will be the starting point. The Tribunal cannot reduce it; obviously fair wage cannot be anything less than the living wages. That would also give full weight to Section 22 of Act 11 of 1948. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takes the subject-matter out of the operation of Act 14 of 1947. Suppose a reference is made under Section 10 of Act 14 of 1947 before wages are fixed under Act 11 of 1948; but that such fixation takes place while the reference is pending, does that oust the jurisdiction of the Tribunal to proceed with the enquiry? Mr. K. Rajah Aiyar concedes that on his contention it does. But it is an anomalous conclusion to reach for which there is no warrant in the statute. The above considerations are sufficient to show that the fixation of wages under Act 11 of 1948 does not deprive the Government of its power to take action under Section 10 of Act 14 of 1947; and that the reference cannot be assailed as without jurisdiction. We may add that a somewhat similar contention that the Industrial Tribunal constituted under Act 14 of 1947 had no jurisdiction to hear disputes relating to payment of ' wages by reason of there being a special legislation relating thereto, Payment of Wages Act 4 of 1936, was repelled by the Federal Court in ^--Shamnugger Jute Factory Co. Ltd. v. S.N. Modak', AIR 1949 FC 150 (E) and by this Court in --Electro Mechanical Industries Ltd. v. Industrial Tribunal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e work which he is to perform and that is a question of fact. It is for the Tribunal to come to a conclusion on the evidence whether having regard to the nature of their duties, maistries and kole maistries are workmen as defined in the Act. Vide 'In re Kadar Moideen', (G). If the Tribunal decides that maistries and kole maistries are not workmen, then it will not make any award with reference to them. It is not for this Court now to decide whether they are workmen or not. That jurisdiction is vested in the Tribunal. See -- 'Rex, v. Fulham', 1951-2 KB 1 at pp. 6, 9 and 11 (H).' (17) This relates to the question of bonus for the period 1949-1950. In paragraph 12 of the affidavit' in'support of the petition, it is stated that this question was settled at a meeting of the employers and workmen on 4-4-1951, that the unionhad withdrawn this demand and that that is also acknowledged by the Labour Officer, Polsachi, in his reference No. 204 of 1952 dated 13-3-1952. It is contended that there is no juris-fiction to refer this matter as there had been a attlement and there was no dispute concerning it. paragraph 9 of the counter affidavit filed on half of the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
