Gomantak Mazdoor Sangh vs State of Goa & Anr. Case

Gomantak Mazdoor Sangh vs State of Goa & Anr. Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2982 OF 2022
Gomantak Mazdoor Sangh …Appellant(s)
Versus
State of Goa & Anr. …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 01.08.2016 passed by the High Court of Judicature of
Bombay at Goa in Writ Petition No. 710 of 2016 by which the High Court
has dismissed the writ petition preferred by the appellant herein in which
the appellant herein challenged the validity of the Errata Notification
dated 14.07.2016 issued by the State of Goa modifying/correcting its
earlier notification dated 23/24.05.2016 by which the State of Goa fixed
the rates of minimum wages in various sectors, the appellant has
preferred the present appeal.
2. The State of Goa issued a notification dated 23/24.05.2016 in
exercise of the powers conferred by clause (b) of sub-section (1) of
section 3 read with clause (i) of sub-section (1) of Section 4 and sub1
section (2) of Section 5 of the Minimum Wages Act, 1948 (hereinafter
referred to as the “Act, 1948”) determining the minimum rates of wages
payable to the various categories of the employees employed in various
trades in the Scheduled Employment, which included the basic rates of
wages plus special allowance. The revised minimum rates of wages as
per the said notification is as under:-
“a) Basic rates of wages as set out in Columns (3) of the
Schedule, annexed to this notification and payable to the
categories of employees mentioned against them in
Column (2) thereof; and
b) Government also hereby introduce payment of special
allowance (hereinafter referred to as variable dearness
allowance) in addition to the revised minimum rates of
wages as notified above at the rate of Rs. 0.95 paise for
every point rise or fall beyond 269 points of All India
Consumer Price Index for Industrial Workers base year
2001=100. Commissioner, Labour and Employment,
Panaji shall calculate, adjust and notify such special
allowance first time on and from 01-10-2016 based on the
average All India Consumer Price Index for Industrial
workers (2001=100) for the period 1st January to 30th
June, 2016. Thereafter, Commissioner, Labour and
Employment, Panaji shall periodically adjust and notify
the rate of special allowance once in every six months on
1st April and 1st October every year based on the
average of All India Consumer Price Index (2001=100) for
the period from July to December and January to June of
the preceding period respectively."
2.1 That thereafter the State Government issued the impugned Errata
Notification dated 14.07.2016 under which it corrected the earlier
notification dated 23/24.05.2016. The word clause (i) was substituted as
clause (iii). The relevant part of the said Notification reads as under:-
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“PUBLISHED IN OFFICIAL GAZETTE- GOVERNMENT
OF GOA, (EXTRAORDINARY N0.3) SERIES I No. 15
DATED 14TH JULY 2016
Department of Labour
Errata
24/21/2009-LAB-ll/472
In the Notifications from the Labour Department published
in the Official Gazette, Series I No. 7 (Extraordinary No.
3) dated 24-5-2016 regarding revision of minimum rates
of wages, the following may be corrected: -
(1) At page 311, the word "clause (i)" may be read as
"clause (iii)".
xxxxxxxxxxxxxx”
At this stage, it is required to be noted that the Act, 1948 allows the
State Government under Section 4(1) to fix the rates of minimum wages
in three different ways as under:-
"(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; 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."
3
2.2 The State Government while issuing the notification dated
23/24.05.2016 chose the first option and fixed the minimum rates of
wages plus special allowance. Now, as per the Errata notification dated
14.07.2016, the State Government fixed the minimum rates of wages as
per Section 4(1)(iii) namely an all-inclusive rate, the result and effect
would be that instead of the basic rate of wages plus special allowance,
as per the Errata Notification dated 14.07.2016, there shall be no
minimum wages plus special allowance, but as per the Errata
Notification, the minimum wages would be the basic rate of tax – an allinclusive rate excluding the special allowance.
2.3 Feeling aggrieved and dissatisfied with the Errata notification
dated 14.07.2016, the appellant herein preferred the writ petition before
the High Court. It was the case on behalf of the State before the High
Court that there was a mistake while issuing the notification dated
23/24.05.2016 and instead of clause (iii) clause (i) was mentioned and
therefore, by the subsequent Errata Notification, the same has been
corrected. The High Court accepted the same and by the impugned
judgment and order, the High Court has dismissed the said writ petition.
2.4 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court dismissing the writ petition, the
original writ petitioner has preferred the present appeal.
4
3. Shri Mayank Pandey, learned counsel appearing on behalf of the
appellant has vehemently submitted that the High Court has committed a
grave error in holding that there was a mistake while issuing the first
notification dated 23/24.05.2016 in which by mistake instead of clause
(iii), clause (i) was mentioned.
3.1 It is submitted that as such the notification dated 23/24.05.2016
was issued after following due procedure as required under Section 4
read with Section 5 of the Act, 1948. It is submitted that as such there
was a conscious decision, as after the draft notification was published,
objections were invited and considered and thereafter the notification
was issued determining the minimum rates of wages, which included the
basic rates of wages plus special allowance. In support of above,
learned counsel appearing on behalf of the appellant has heavily relied
upon paras 8 and 9 of the counter filed before this Court. It is submitted
that in that view of the matter and as there was no mistake either clerical
and/or arithmetical, even in exercise of power under Section 10 of the
Act, 1948, the same could not have been corrected unless a fresh
procedure as required under Section 4/5 has been followed. Reliance is
placed on Section 21 of the General Clauses Act.
3.2 It is submitted that according to the respondent State, there was a
clerical error, which has been corrected vide Errata Notification dated
5
14.07.2016. It is submitted that if the original notification dated
23/24.05.2016 is considered, it can be seen that a conscious decision
was taken while determining the minimum wages and the minimum
wages were fixed as per Section 4(1)(i). It is contended that therefore,
once a conscious decision was taken, it cannot be said that there was
any clerical mistake, which could have been corrected in exercise of the
powers under Section 10 of the Act, 1948.
3.3 Learned counsel appearing on behalf of the appellant has heavily
relied upon the decision of this Court in the case of Master
Construction Co. (P) Ltd. Vs. State of Orissa and Anr., (1966) 3 SCR
99 on what can be said to be an arithmetical and/or clerical error.
Making the above submissions, it is prayed to allow the present
appeal.
4. Shri Abhay Anil Anturkar, learned counsel appearing on behalf of
the respondent State has tried to support the impugned judgment and
order passed by the High Court as well as the Errata Notification dated
14.07.2016.
4.1 It is submitted that as such when the draft notification was issued,
clause (iii) of Section 4(1) was under consideration. However, by
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mistake, thereafter when the notification was issued clause (i) of Section
4(1) was mentioned and therefore, the same was corrected in exercise
of the powers under Section 10 of the Act, 1948. It is urged that Section
10 of the Act, 1948 permits the correction of a clerical or arithmetical
mistake in any order fixing or revising the minimum rates of wages. It is
submitted that therefore the High Court has rightly dismissed the writ
petition.
5. We have heard the learned counsel appearing for the respective
parties at length.
6. Vide Notification dated 23/24.05.2016, the State Government
determined the minimum wages, which included the basic rates of
wages and the special allowance. The notification specifically stated
that the said notification has been issued in exercise of powers conferred
by clause (b) of sub-section (1) of section 3 read with clause (i) of subsection (1) of Section 4 and sub-section (2) of Section 5 of the Act, 1948.
As can be seen from the contents of the said notification, the said
notification was issued in consultation with the Minimum Wage Advisory
Board and thereafter the minimum wages were revised. Thus, the
minimum wages were revised under clause (i) of sub-section (1) of
Section 4 after following the due procedure as required under Section 5.
7
Sections 4 and 5, which are relevant for our purpose are extracted as
under:-
“4. Minimum rate of wages.—(1) 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.
(2) The cost of living allowance and the cash value of
the concessions in respect of supplies of essential
commodities at concession rates shall be computed by the
competent authority at such intervals and in accordance
with such directions as may be specified or given by the
appropriate Government.
5. Procedure for fixing and revising minimum
wages.—(1) In fixing 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 either—
(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
8
(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.
(2) After considering the advice of the committee or
committees appointed under clause (a) of sub-section (1)
or, as the case may be, all representations received by it
before the date specified in the notification under clause
(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:
Provided that where the appropriate Government
proposes to revise the minimum rates of wages by the
mode specified in clause (b) of sub-section (1), the
appropriate Government shall consult the Advisory Board
also.”
7. Therefore, once the minimum wages were revised and
determined, which included the basic rates of wages and the special
allowance as per Section 4(1)(i) of the Act, 1948, thereafter it cannot be
said that there was any clerical and/or arithmetical mistake in mentioning
clause (i). The minimum wages were revised and determined even after
consultation with the Minimum Wage Advisory Board as required under
Section 5 of the Act, 1948. Therefore, once there was no mistake, the
same could not have been corrected in exercise of powers under
Section 10 of the Act, 1948.
9
7.1 Even as per Section 10, only the clerical or arithmetical mistakes in
any order fixing or revising minimum rates of wages can be corrected.
Section 10 of the Act, 1948 reads as under:-
“10. Correction of errors.—(1) The appropriate
Government may, at any time, by notification in the
Official Gazette, correct clerical or arithmetical mistakes in
any order fixing or revising minimum rates of wages under
this Act, or errors arising therein from any accidental slip
or omission.
(2) Every such notification shall, as soon as may be after
it is issued, be placed before the Advisory Board for
information.”
7.2 What can be said to be an arithmetical or clerical error has been
dealt with and considered by this Court in the case of Master
Construction Co. (P) Ltd. (supra). It is observed and held that an
arithmetical mistake is a mistake of calculation; a clerical mistake is a
mistake in writing or typing. An error arising out of or occurring from an
accidental slip or omission is an error due to a careless or inadvertent
mistake or omission unintentionally made.
7.3 In the present case, as observed hereinabove, a conscious
decision was taken by the State Government after consultation with the
Minimum Wage Advisory Board and thereafter the minimum wages were
revised and determined in exercise of power under Section 4(1)(i).
Therefore, it cannot be said that there was any arithmetical and/or
10
clerical mistake, which could have been corrected in exercise of powers
under Section 10 of the Act, 1948.
7.4 At this stage, it is required to be noted that in the Errata
Notification dated 14.07.2016, as such nothing has been mentioned as
to under which provision of law, the said notification has been issued.
Only from the submission on behalf of the State before the High Court,
the State has come out with a case that there was a clerical mistake,
which is corrected by the Errata Notification. Therefore, we presume
that the Errata notification has been issued in exercise of powers under
Section 10 of the Act, 1948. As observed hereinabove, as such, there
was no clerical mistake at all and a conscious decision was taken while
issuing the notification dated 23/24.05.2016 and therefore, the same
could not have been corrected in exercise of powers under Section 10 of
the Act, 1948.
8. Even from the counter affidavit filed on behalf of the respondent
before this Court, it is crystal clear that when the earlier notification dated
23/24.05.2016 was issued, the same was issued after due application of
mind and after the draft notification was issued in which the minimum
wages were sought to be revised as per Section 4(1)(iii). However, after
the objections and suggestions were invited, the Labour Union submitted
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their representations and then a final decision was taken to revise the
minimum wages as per Section 4(1)(i). In paragraphs 8,9 and 10, it is
stated as under:-
“8. That, the Respondent No. 1 in exercise of the powers
conferred by clause (b) of Sub-Section (1) of Section 3,
read with clause (iii) of Sub-Section (1) of Section 4 and
Section 5 (1) (b) of the Minimum Wages Act, 1948,
published a Draft Notification in the Official Gazette,
Series I, No. 9, dated 28/05/2015 in Order to consider
objections, suggestions, and representations by the
Respondent No. 1 from all the concerned stakeholders.
9. That, I state that at this stage, the representatives of
the Labour Union objected to the draft Notification by
putting forth their views for introduction of a special
allowance in the form of 'Variable Dearness Allowance'
(VDA). That, the deliberations continued over a long
period of time thereby resulting in delay in issuing the
Final Notification for minimum wages.
10. That, I further state that taking into consideration the
demand and need for introduction of special allowances
in the form of Variable Dearness. Allowance (VOA) and
the delay caused in the deliberations resulting in hike in
Consumer Price Index and to avoid any further delay, the
State Government had in the Final Notification raised the
minimum rates of wages proposed in Draft Notification
and also provided for introduction of VOA to be notified for
the first time in October 2016, and the same was to be
revised every six months i.e. in the month of October and
April each year.”
8.1 Therefore, considering paragraphs 8 to 10 of the counter, even
according to the State, after the representation of the Labour Union,
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which objected to the draft notification by putting forth their views for
introduction of a special allowance in the form of ‘Variable Dearness
Allowance’ and after due deliberations for a longer period of time, the
final notification was issued determining the minimum wages with special
allowance. Therefore, subsequent case on behalf of the State that
under the notification dated 23/24.05.2016, there was a clerical mistake
by mentioning clause (i), which was corrected by issuing the subsequent
Errata Notification cannot be accepted.
9. Even by applying Section 21 of the General Clauses Act and
assuming that the State was having power to amend, vary or rescind the
notification, in that case also such power can be exercised in a like
manner, namely after following the procedure, which was followed while
issuing the original notification. Therefore, in the present case,
assuming that the State was having the power to amend, vary or rescind
the notification in exercise of powers under Section 21 of the General
Clauses Act, in that case also, when the earlier notification dated
23/24.05.2016 was issued after following the due procedure as required
under Sections 4 and 5 of the Act, 1948, the same procedure ought to
have been followed even while varying and/or modifying the notification.
Hence, the notification dated 23/24.05.2016 could not have been
modified by such an Errata Notification which was issued in purported
exercise of Section 10 of the Act, 1948.
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10. Therefore, we are of the opinion that the Errata Notification dated
14.07.2016 was wholly without jurisdiction and contrary to the relevant
provisions of the Minimum Wages Act, 1948, which ought to have been
set aside by the High Court. The High Court has erred in dismissing the
writ petition challenging the Errata Notification dated 14.07.2016 by
accepting the case on behalf of the State that there was a clerical
mistake, which is subsequently corrected by the Errata Notification.
11. In view of the above and for the reasons stated above, present
appeal succeeds. The impugned judgment and order passed by the High
Court dismissing the writ petition is hereby quashed and set aside. The
subsequent Errata Notification dated 14.07.2016 is hereby quashed and
set aside and the earlier notification dated 23/24.05.2016 revising and
determining the minimum wages, which included the basic rates of
wages plus special allowance is hereby restored.
Present appeal is allowed accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
………………………………….J.
 [M.R. SHAH]
NEW DELHI; ………………………………….J.
MAY 10, 2022. [B.V. NAGARATHNA]
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