I96I

SUPREME COURT REPORTS

UNION OF INDIA AND OTHERS

(1961)

MAHARAJA KRISHNAGARH MILLS LTD.

(IN LIQUIDATION) . . (B. P. SINHA., C.J., s. K. DAS, A. K. SARKAR, N. RAJAGOFALAAYYANGARand J. R.MunHOLKARJJ.)

Cotton Excise Duty-Agreement between Pre>ident and Raj Pramukh of Part B State-Right of Union to collect arrears of such duty payable to the State-Constitution of India, Arts. 2771 278.

The question for determination in the appeal was whether the Union of India was entitled to levy and recover arrears of excise duty on cotton cl.0th for the period April 1, 1949, to March 31, 1950, payable by the respondent, a cloth mill in the State of Rajasthan, under the Rajasthan Excise Duties Ordinance, 1949 After the coming into force of the Indian Constitution and the extension of the Central Excise and Salt Act, 1944, and the rules framed thereunder to the State of Rajasthan by s. II of the Finance Act of 1950, the duty in respect of cloth manufactured on and from April l, 1950, became payable under that Act. The appellant Union., however, claimed that as a result of the agreement entered into on February 25, 1950, by the President of India with the Rajpramukh of Rajasthan 11nder Art. 278 and Art. 295 of the Constitqtion, the Union of India became entitled as from April l, f950, lo claim and recover all arrears of excise duties which the State of Rajasthan was entitled to recover from the respondent before the Central Excise and Salt Act, 1944, was extended to Rajasthan. Notice having been accordingly served on the respondent demanding payment of the outstanding amount of Rs. l,36,551-12 as payable by it, it moved the High Court under Art. 226 of the Constitution. On a reference by the Division Bench which heard the matter in the first instance, the Full Bench finding in favour of the respondent held that Art. 277 was a complete refutation of the said claim by the Union and Art. 278 and the said agreement were overridden by it.

Held, that the provisions of Arts. 277 and 278 of the Constitution, properly construed, leave no manner of doubt that Art. 277 was in the nature of a saving provision, subject in terms to the provisions of. Art. 278, permitting the States to levy a tax or duty which, after the Constitution could be levied only by the centre. But Art. 277 had to yield place to any agreement in respect of such taxes and duties made.between the Union Government and the Government of a Part B State under Art. 278.

Since there could not be the least doubt in the instant case that the agreement between the President and the Rajpramukh of Rajasthan conceded to the Union the right to levy and collect the arrears of the cotton excise duty in Rajasthan, the High Court was wrong in taking a contrary view of the matter.

• ;- j

) • ' •

...

C1v1L APPELLATE JURISDICTION: Civil Appeal No. 252 of 1956.

Appeal from the judgment and decree dated September 29, 1953, of the Rajasthan High Court (Jaipur Bench) in Civil Writ Application No. 28 of 1951. .

Gopal Singh and T. M. Sen, for the appellants.

S. N. Andley, J.B. Dadachanji and P. L. Vohra, for the respondent.

1961. January 19. The Judgment of the Court was delivered by

SINH~, C. J.-This appeal on a certificate granted by the Jaipur Bench of the High Court of Judicature for Rajasthan that "the case involves a substantial question of law as to the interpretation of Arts. 277, 278, 294 and 295 of the Constitution of India and the case is a fit one for appeal to the Supreme Court under Art. 132(1) and also under Art. 133(l)(c) of the Constitution of India" is directed against the judgment dated September 29, 1953, of the High Court of Judicature for Ra.jastha.n at Jaipur to the effect that the appellant, the Union of India., was not entitled to levy and recover arrears of excise duty on cotton cloth for the period April 1, 1949, to March 31, 1950, from the respondent, the Mahara.ja. Krishnagarh Mills Ltd.

The facts of this case, which have not been in dispute at any stage of the proceedings, may shortly be stated as follows. The respondent is a cloth mill located in Krishna.garb in District Jaipur in the State of Rajasthan. It had a stock of manufactured cloth on April I, 1949, and also manufactured cloth during the period, April 1, 1949, and March 31, 1950. In respect of such cloth an excise duty became payable under the Rajasthan Excise Duties Ordinance, 1949 (XXV of 1949), at rates set forth in the schedule to the Ordinance. The sum of Rs. 1,56,291 odd became pa.ya.hie on that account out of which only a. sum of Rs. 19,739 odd was paid to the Government of Ra.jasthan, thus leaving the sum of Rs. 1,36,551 odd outstanding against the respondent. After the Indian Constitution ca.me into effect, the Central Excise and

U nio" of I"4ia

Maltaraja Kf'iJlusagMA

Mills Lil.

Sinha C.J.

. ' '---:· / '/ -

[1961]

,'._: I -·•- ~-- - - ', ·,;.zo6~ - , Salt , Act, 1944, and the rules framed thereun\ler were u ··{1~ ·~ exierided t<l'the State ofRajasthari 'by"s.:ll 11)fthe

 "' 0 ":. -- "',_ Finance Act of 1950. Hence, the duty became payable _, M'.1taraja :•'in'. respect of the. cloth'. manufactured, on 'and from

.. KrisAnat••A ' 'April I,' 1950;' under the provisions of th&t Act..

The Mills Lid. ' appellant 'Claimed' that as a.' result'. ortoe itgneiiient

between the -Government 'of India and the State of.

Sinlta C.J. . Rajasthan, to be noticed hereinafter in detail, a1id of

. _) , ,, .. '

/ I ,,_;

., the Co.:.stitution, :the. Union of Indfa became entitled _. _ to. realise_ the.arrears of the excise dutyin respect'.of

. , the ,, cloth ; manufactured by the. respondent , before . April" I, 1950: ., In enforcement of that: claim. the Superintendent of Central Excise,, Jaipur," served 'a 1• ritic~ atd February)6;. ~~51;. on.: t~11'-; respofi.dent · demandmg 'payment of the outstandmg amount of :. Rs~· 1,36,551 cdd. The•resporident-thereupon 'filed a ·,:writ petition hi the High'Court of Rajasthani Jaipur, under Art~'226 ofthe !Constitution against '(I) tlie Union:of'.India;-(2) the Central Board of Revenue, Delhi, (3) the Collector of Central Excise .for Rajas- .. than;' Delhi,'_ and (4) tlie : Superintendent. 'of Central

~Excise,· Jaipur; 'who arethe :appellants' before us, praying: for a writ of prohibition.against'.tliem pro- . hiiting them from hnposing;' levying or collectillg

. ; any tax or dbty by way of exciBe as 'also for r ii.ny

appropriate direction; order or writ.' Th'e writ petition 'was 'founded ::on' the' contentions that .. the notice'of . . 'demand served upon the respondent as aforesaid. was '.illegal and unauthorised on the ground.(l) that_ the (Central· Government had rio jurisdiction to levy any

.tax\beforli January 26,: 11950, (2):that 'the Central ., Excise and Salt Aot :.was not• in force in.RajasthD.n before 'April l, .1950, and (3) that without the_ appli- ·.cation of the rules framed by the Central. Go•ernment • .under s. 37 .of the Central Excise arid Salt Act,"1944, tp 'Rajasthan no duty'. could be imposed, levied or collect- -ed and those rules were made applicable to Raja.sthan only onDecemberJ6, 1950:,; .. .''. .· ..... :id'<. :.: :· ": -. 'On behalf of the "appellants, who, were he_ res'pon~-

- .en ts '; in,· te. High '_Court, it• was contende, d that it was

. not correct to _say that the: rules framed under 11~'37 .. 1'-:.~:Fl ,:,_,· '~- ;,.1~ .. r _•. ,: .... :-· ·~ '';· ·J;-.i!l ·, __ ... ,;_•;;;:-~-~:.,:~~::;') !>:-:-f r_,:_~·~: r f:::' J'-~

•·.~ <•; J_-~ ~::.;_;_A 'j_: 01 ,"'"~i.:; ~:=:~·-:r-·~) . .

3 .S.C.R.

SUPREME COURT REPORTS 527 t of tile Central Excise and Salt' Act, 1944, were made applicable to the State of Rajasthan by virtue of the notification dated December 16, 1950, and it was asserted. that those rules . became applicable to the State of Ra.ja.sthan with effect from April l, 1950, as a result of s. 11 of the Finance Act, 1950. It was also contended that by virtue of s. 3 of Ra.ja.sthan Excise Duties Ordinance (XXV of 1949) promulgated by ilis Highness the Rajpramukh of Raja.sthan on September 5, 1949, excise duty was levied on cloth and •other articles produced and manufactured in Ra.jaatha.n on and after April 1, 1949, at the rates set forth in the first schedule of the said Ordinance. It was also contended that in pursuance of Arts. 278 and 295 of the Constitution the President of India hap entered into an agreement with the Rajpramukh of, Rajasthan on February 25, 1950, whereby the pal-ties agreed to accept the recommendations of the Indian States Fina.nee Enquiry Committee, 1948-49, contained in part I of its report., read with chapters I, II .and III of part II of its report, in so far as they applied to the State of Ra.ja.stha.n together with the recommendations cont'ained in Chapter VIII of pa.rt II of the said report. By virtue of the said agreement the Union of India became entitled to claim and recover all excise duties, whether assessed or unas110ssed, which the State ofRaja.stha.n was entitled to recover from the respondent as from April 1, 1949, before the Central Excise and Salt Act, 1944, was extended to the State of Rajastha.n, as aforesaid.

The m11otter was first heard by a Bench consisting of Ranawat and Sharma, , JJ., which, in view of the importance of the points involved in the case, referred the following two points for decision by a larger Bench by its judgment dated November 5, 1951:

" I. Whether by virtue of Articles 278, 279 and 295 of the Constitution of India and the agreement 11ntered into between the President of India and the Rajpramukh of Raje.sthan on the 25th of February, 1950, the Uni9n Qf •Indi,:Js. entitled to. levy and recover arr.ear11of&xc~ dfity on cloth held in stock or manufactured before the 1st of April, 19501 . . .

z961

Union of India

Maharaja K, islusagiirll

Mills L<d.

Sinha C.].

Union of India

Maharaja Krishnagark Mills Ltd.

Sinha C.J.

in case excise duty thereon was payable to the State of Rajasthan under the provisions of the Rajasthan Excise Duties Ordinance No. 25 of 1949?

2. Whether the publication of the Government notification by which the Jaipur ExciAe Rules were adopted under the provisions of the Rajasthan Excise Ordinance was sufficient publication within the meaning of s. 28 of the Rajasthan Excise Duties Ordinance No. 25 of 1949, and whether the publication of the aforesaid notification should be deemed to have been properly authenticated by authentication of the publication of the Ordinance. If not, whether want of authentication would have the effect of invalidating the said Excise Rules ? " The case was then heard by a Full Bench consisting of Wanchoo, C.J., Ranawat and Dave, JJ. The judgment of the Court was delivered by the learned Chief Justice on November 24, 1952, in substance upholding the contentions raised on behalf of the petitioner before the High Court, now respondent. The High Court came to the conclusion that Art. 277 of the Constitution was a complete answer to the claim of the Government of India to collect the dues in question for any period anterior to April 1, 1950. This conclusion was based on the reasoning that the agreement aforesaid betrween the Government of India and the Government of Rajasthan was in effect overridden by Art. 277 and that the agreement contemplated by Art. 278 was in respect of a duty which was leviable by the Government of India. By virtue of Art. 277 of the Constitution cotton excise duty was actually leviable by the State of Rajasthan up to March 31, 1950, because Parliament made the contrary provision only from April 1, 1950. Therefore, it was further observed by the High Court that the effect of Art. 277 on Art. 278 of the Constitution was that cotton excise duty could not be said to be leviable by the Government of India so far as the State of Rajasthan was concerned up to March 31, 1950. In view of that conclusion it was further held that the right to collect the arrears of excise duty in question could not b0 held to have bee11 transferred to the Union of Indi&

3S.C.R.

SUPREME COURT REPOR'fS 529

' f' by virtue of the agreement aforesaid of February 25,

1950. The first question referred to the Full Bench was thus anwered in favour of the petitioner in the High Court. The second question relating to the publication and authentication of the Excise Rules was also answered in favour of the petitioner, now respondent. The High Court held that the Hindi Gazette relied upon on behalf of the Government gid not contain any authentication of the Rules and did not show by whose authority they had been published. This conclusion wa& based on the ground that the contention raised on behalf of the Government that the publication in the Gazette and the authentication therein did not only apply to the Ordinance but covered the Rules also, was not correct. The answers given by the Full Bench to the questions referred to it by the Divi3ion Bench were returned to the Bench concerned anrl. the Bench, in pursuance of the opinion of the Full Bench, ordered by its iudgment dated September 29, 1953, that "a direct.ion be issued against the opposite party not to recover from the petitioner the amount of RA- 1,36,551-12 as per their notice of demand of the 16th of February, 1950. The petitioner shall get costs of this petition from the respondents." The Union of India applied for and obtained the necessary certificate, as quoted above, from the High Court of Ra.jasthan. That is how the matter is before this Court.

It is manifest that if the opinion of the Full Bench on the second question referred to as to the publication and authentication of the Rules is correct, then no other question will arise for determination by this

Court. If the Rules under the Rajasthan Excise Duties Ordinance, XXV of 1949, had not been properly promulgated and authenticated, then the Ordinance by itself could not be sufficient for the levy and collection of the tax sought to be i'mposed. It is, therefore, necessary for us first.to determine that con-., t.roversy. At the outset, it may be mentioned that the writ petition filed by the respondent in the High Court under Art. 226 of t•he Constitution did not allege any facts bearing on this part of the controversy.

Union of India

J.'v!.aharaja Krishnagarh

A-Iit:s Ltd.

Sinha C.J.

Union of India v. ,'!fr•h1iraja

Irishnagarh

Mills Ltd.

Sinha( •. ].

I '[1961] SUP:i; tEME COURT REPORTS

Thus, there was no foundation laid in the pleadings for a contention that the Rules aforesaid had not been promulgated on a. proper authentication. As already indicated, the petition was founded only on the la.ck of power in the Union Government to levy and collect the excise duty with reference to the provisions of the Central Excise and Sa.It Act of 1944 and the Rules framed thereunder. There is no reference to the provisions of Ordinance XXV of 1949 promulgated by the Ra.jastha.n Government. It was only in the reply to the writ petition ma.de by the respondent in the High Court that reliance was placed upon the said Ordinance and the Rules framed thereunder. We do'not.find any plea.dings, or any petition by way of amendment of the plea.dings, in the record of this case raising the contention that the Rules framed under the Ordinance a.fores1•id had not been promulgated on' a proper authentication. The High Court, therefore, on the face of the plea.dings, was not justified in permitting the petitioner before it to raise this contention, but our decision need not be rested on the, lack of plea.dings only. We have examined .the Ra.ja.sthan Gazette, the Hindi version of which is entitled Rajaatha11 Raj Patra published by authority of the Ra.jasthan ' Goverament dated Ma.rgashii'sa. Krishna. 7, Saturday, Samvat 2006, containing the notification dated Jaipur, September 15, 1949, the preamble of which states that Shrin.an Rajpramukh had made and promulgated the following Ordinance which was being published for the information of the public and it purports to have been authenticated by the Law Secretary, Sanyukta. Rajas. than Sarkar. Under that authentication follows the Ordinance, XXV of 1949, dated September 5, 1949.

The Ordinance goes to the end of page 169 and from the next page 170 ending with page 172 appear the Rules. They begin with the declaration which may be translated as follows :

" In exercise of the powers conferred under ss. 5 and 26 of the Raja.stha.n Excise Duties Ordinance of 1949 the Raja.sthan Government orders that till new Rules a.re framed under the aaid Ordinance, 'the ; Rules framed under the Jaipur Exe~ -Duties Aot ·

of 1945 known as the Jaipur Excise Duty Rules of 1945 will be in force throughout the whole of Rajas. than with necessary modifications and for this purpose will be treated as made under the 'Rajasthan Ordinance." It would thus appear that the authentication by the L; i.w Secretary appearing on t, he first page of the Gazette as aforesaid was intended to govern not only the Ordinance in question but also the Rules which had been promulgated thereunder. Apparently, s. 28 of the Ordinance which ran-

" All rules made and notificatiow1 issued under this Ordinance shall be made and issued by publication in the Rajasthan Gazette. All such Htles and notifications shall thereupon have effect as if enacted in this Ordinance"- was understood to au.thorise such a . mode of pr9. mµlgation and authentication. Theauthority that promulgated the rule having intended the signature of the Law Secretary appearing at the beginning of the publication as an authentication of thtl rules, we are of opinion that the formal requirements of s. 8 (2) of the Ordinance V of 1949 were satisfied.

Whether the authentication appears in the beginning of the notification or at the end of it is not material so long as it is clear .on a reference to the· publication in the Gazette that he matter is substantially covered by the authentication, whether appearing at the beginning or the end of the notification. The High -Court, therefore, was in error in coming to the conclusion that the authentication coveredthe Ordinance proper without the Rules framed thereunder. The correct conclusion from the record as it stands is that the authentication covers the entire notificat!on including both the Ordinance proper arid the R1iii)s framed thereunder which became partii of the Statute.

· In view of this concltlsion it becomes neoessary now to examine the ratio of the decision of the High Court on the first question referred to it, namely, th-e authority of the Union of India to realise the arrears of the duty in question. It is clear in view of our conclusion

Mahan•h J{risht1a.1;.,,"

J1l rl/s J, td.

Sinha C.].

Union of India

Maharaja Krishnagarh

Mills Lid.

Sinha C.J.

that the Ordinance and the Rules framed thereunder have been properly promulgated in the Official Gazette, that the Government of Hajasthan was entitled to levy and collect the duty of excise in respect of cotton cloth from the respondent. As a matter of fact, the respondent appears to ha.ve paid about Rs. 19,739 odd out of the duty payable by it to t, hat Government.

The remaining amount for which the notice of demand had been issued by the official of the Government of India. was certainly payable to the Government of Rajasthan. We have, therefore, to consider whethar the Government of India by any process of law stepped into the shoes of the Rajas than Government in respect of the arrears aforesaid.

In this connection reliance was placed on the agreement between the President of India ar.d the Rajpramukh of Rajasthan dated February 25, 1950. The relevant provisions of the agreement are these:

" Whereas provision is made by Articles 278, 291, 295 and 306 of the Constitution of Jnrlia for certain matters to be governed by agreements b11tween the Government of India and the Government of a State specified in Part B of the First Schedule to the Constitution .......... ..

Now, theefore, the President of India and the Rajpramukh of P.ajasthan have entered into the following agreement, namely:- The recommendations of the Indian States Finance Enquiry Committee, 1948-49 (hereafter referred to as the Committee) contained in Part I of its Report read with Chapters I, II and III of Part 11 of its Report in so far as they apply to the State of Rajasthan (hereafter referred to as the State) together with the recommendations contained in Chapter VIII of Part II of the Report, are accepted by the Parties hereto, subject to the following modifications, namely, ......... " The modific<'tions are not material to this case. The agreemenl, thus incorporates as terms of the agreement the report of the Cummittee, the relevant portion of which is in these terms:-

l t

" With effect from the prescribed date, the Centre will take over all ' federal ' sources of Revenue and all ' federal' items of expenditure in State together with the administration of the Departments concerned. The Centre must also.take over all current outstandings (including pending assessments, refunds, and arrears), liabilities, claims, etc., and all productive and unproductive capital assets connected with these Departments." It is common ground that "federal sources of revenue" include the duty of excise in question. It is also clear that all outstanding dues from assessees including pending assessments and arrears have been by the terms of the agreement made over to the Centre. This agreement, as the preamble itself indicates, has been tnade in accordiJ, nce with the. provisions of Arts. 278 anrl 295 of the Constitution. The relevant portions of Art. 278 are aB 'under:- . "278. (1) Notwithstanding anything in this Constitution, the Government of India may, subject to the provisions of clause (2), enter into an agreement with the Government of a State specified in Part B of the First Schedule with respect to- ( a) the levy and collection of any tax or duty ieviable by the Government of India in such State an.d for the distribution of the proceeds thereof otherwise than .in accordance with the provisions of . this Chapter;...... . · and, when an agreement is so entered into, the provisions of this Chapter shall in relation to such State have effect subject to the terms of such agreement." It is noteworthy that the provisions of Art. 278 over. ride pro tanto other provisions of the Constitution including Art. 277 and the ter.ms of the agreement override the provisions of the Chapter, namely, Chapter I of Part XII. In this Chapter are contained Arts. 264 to 291.

Thus, on a oonst,, ruction of the provisions of Arts. 277 and 278, it is clear that in the absence of any agreement between the Government of India and the Government of a State specified in Part B, duties of customs which immediately before

Uaion of India v. , Mallaraja Krishnagarh

Mills Ltd.

Sinha C.J,

Union of India v.

Maharaja Krishnagarh Mills Ltd.

Sinha C.].

SUPREME COURT HEI UE1'S (1961]

the commencement of the Constitution were being lawfully levied by the Government of such a State continue to be levied by that State until provision to the contrary is made by Parliament by law, notwithstanding that such a duty is mentioned in the Union List. Article 277, therefore, is in the nature of a saving provision permitting the States to levy a tax or a duty which, after the Constitution, could be levied only by the Centre. But Art. 277 must yield to any agreement made between the Government of India and the Government of a State in Part B in rspect of such taxes or duties, etc. The provision to the contrary contemplated by Art. 277 was made by the Finance Act, XXV of 1950, s. 11, which extended the Central Excise and Salt Act, 1944, along with other Acts to the whole of India except the State of Jammu and Kashmir. But that section has effect only from April 1, 1950, and therefore does not apply to th'e arrears of duty of excise now in controversy. The agreement envisaged by Art. 278 was entered into as aforesaid on February 25, 1950.

That agreement conceded to the Centre the right to levy and collect the arrears of the d•.tty in question.

The reasons given by the High Court for the conclusion that in spite of Art. 278 read with the agreement aforesaid, the Union Government was not entitled to realise the arrears are-(1) that the agreement does not contain any specific provision about levy and collectiqn of cotton excise duty in Rajasthan, (2) that the mere approval in the agreement of the principles set out in the report is not enough in view of Art. 277 which made a distinctly different provision from that contemplated in the report and (3) that the agreement co, uld be only with respect to a duty which was leviable by the Government of India. In our opinion, none of these reasons afortisaid can stand in the way of the Union of India. Though the agreement does not in terms refer to levy and collection of cotton excise duty in Rajasthan, it is clear that the agreement has to be read with the relevant portions of the report quoted above. So read, there cannot be the least doubt that cotton exois~ duty in Rajasthan, as a " federal

l t

3 S.C.R.

SUPREME COURT REfORTS 535 ' source of revenue," is also covered'by the agreement.

Nor is it correct to say that the agreement read with the report is not enough to override the provisions of Art. 277. The agreement read with Art. 278, as already indicated, in terms, overrides the provisions of Art. 277. The only other reason which weighed with the High Court in getting over the terms of Art. 278 cannot alo hold good. That a duty of the kind now in controversy on the date of the agreement after coming into force of the Constitution is leviable only by the Government of India even in respect of the State of Rajasthan is clear beyond all doubt. The Union List only, namely, entry 84, in the Seventh Schedule, authorises the levy and collection of the duty in question.

Neither the State List, List II, nor the Concurrent List, List III, contains any such authorisation. It is true that Art. 277 has saved, for the time being, until Parliament made a provision to the contrary, the power of the State of Rajasthan to levy such a duty, but that is only a saving provision, in terms subject to the provisions of Art. 278. Thus, the combined operation of Arts. 277 and 278 read with the agreement vests the power of levy and collection of the duty in the Union of India. It is only in the absence of an agreement like the one we have in this case that the Rajasthan Government could continue to levy and collect the duty in quedtion. The agreement between the two Governments completely displaced the operation of Art. 277 in regard inter alia to the levy of this duty so far as the State of Rajasthan is concerned. It is clear, therefore, that the High Court was in error in holding that Art. 277 was any answer to the claim of the Government of India and should override the provisions of Art. 278 read with the agreement. On a proper construction of these provisions, in our opinion, the result is just to the contrary. In this view of the matter, it is not necessary to consider the other arguments advanced on behalf of the appellants, whether Art. 295 should prevail over Art. 277.

For the reasons aforesaid, this appeal is allowed and the decision of the High Court set aside. The result

~ '

Union of India v.

Maharaja Krishnagarh

Mills Ltd.

Sinha C.j.

Union of India v.

MaharaJa Krishnagarh

i-. Mills Ltd.

Sinha C.J.

January 20.

is that the writ petition filed by the respondent in the High Court stands dismissed with costs here and in the High Court.

Appeal allowed.

STANDARD VACUUM REFINING CO. OF INDIA v.

ITS WORKMEN AND ANOTHER. (P. B. GAJENDRAGADKAR, K. N. WANCHoo and K. c. DAS GUPTA, JJ .. ) Industrial dispute-Bonus-Living Wage, determination of.

The workmen claimed bonus for the year 1956 equivalent to nine months' total earnings on the ground that the employers had admitted their capacity to pay and that there was a big gap between the wage actually received and the living wage. The employers contended that they were paying the workmen a living wage and they were not entitled to any bonus. The employers relying mainly on the Report of the Textile Labour Committee, 1940, contended that if the living wage in 1940, i.e., R, s. 55/· was multiplied by 3·5 (due to rise in prices) it gave Rs. 192·50 as the living wage in 1956 and they were paying their workmen at a higher rate. The workmen relied on the recommendations of the Indian Labour Conference, 1957, to show that Rs. 209·70 approximat.ed to the standard of the need-based minimum wage and that the average. wag:e paid by the employers was nothing more than this. The Tribunal held that the wages paid were fair but that there was still a gap between the actual wage and the living wage and awarded bonus equivalent to five months' basic wages.

Held, that the employers had failed to establish that they were paying a living wage to the workmen. In construing wage structure the considerations of right and wrong, propriety and impropriety, fairness and unfairness are also taken into account to some extent. As the social conscience of the general community becomes more alive and active, as the welfare policy of the State takes a more dynamic form, as the national economy progresses from stage to stage, and as under the growing strength of the trade union movement collective bargaining enters the field, wage structure ceases to be a purely arithmetical problem.

Wages are usually divided into three broad categories: the basic rninin1um wage, the falr wage and the living \vage.

The concept of these three wages cannot be described in definite words as their contents are elastic and vary from time to time and fro111 place to place. The concept. of a living wage js not a static concept; it is expanding and the number of its constituents and their

UNION OF INDIA AND OTHERS

s. K. DAS

A. K. SARKAR

Constitution of India

Arts. 2771

Union of India

State of Rajasthan

Rajasthan Excise Duties Ordinance, 1949

II of the Finance Act

April l, 1950

February 25, 1950

India

Art. 278

Art. 295

Art. 226

Art. 277

Art. 278

Arts. 277 and 278

Art. 277

Art. 278

Art. 277

Art. 278

Rajpramukh of Rajasthan

Gopal Singh

T. M. Sen

S. N. Andley

J.B. Dadachanji

P. L. Vohra

SINH~

Arts. 277, 278, 294 and 295

Constitution of India

Supreme Court

Art. 132(1)

Art. 133(l)(c)

Constitution of India

September 29, 1953

Union of India

March 31, 1950

Mahara.ja. Krishnagarh Mills Ltd.

Jaipur

April I, 1949

April 1, 1949

Government of Ra.jasthan

Sinha

State of.

Sinlta C.J. . Rajasthan

Central Board of Revenue, Delhi

s. 37

State of Ra.ja.sthan with

s. 11

Finance Act, 1950

s. 3

Excise Duties Ordinance

September 5, 1949

Arts. 278 and 295

Rajpramukh of, Rajasthan

State of Ra.ja.stha.n together

State ofRaja.stha.n was

Central Excise and Salt Act, 1944

Ranawat

Sharma

Articles 278, 279 and 295

Constitution of India

Union of India

Maharaja K

Maharaja Krishnagark Mills Ltd.

s. 28

Wanchoo

Dave

November 24, 1952

Art. 277

Government of India

April 1, 1950

Government of Rajasthan

Art. 277

Art. 278

Art. 277

Parliament

Art. 277

Art. 278

Union of Indi

16th of February, 1950

High Court of Ra.jasthan.

Art. 226

Ra.jastha.n Government

Sanyukta. Rajas

ss. 5 and 26

Excise Duties Ordinance

Raja.sthan Government

Rajas

s. 28

s. 8

Mahan•h J{risht1a.1

Maharaja Krishnagarh

Government of Hajasthan

Articles 278, 291, 295 and 306

First Schedule

Rajpramukh of P.ajasthan

Arts. 278

Art. 278

First Schedule

Art. 278

Art. 277

Arts. 264 to 291

Arts. 277 and 278

Sinha C.J

Article 277

Art. 277

Art. 277

s. 11

Central Excise and Salt Act, 1944

Jammu and Kashmir

Art. 278

Art. 278

Art. 277

Art. 277

Art. 278

Art. 277

Art. 278

Seventh Schedule

Art. 277

Art. 278

Arts. 277 and 278

Rajasthan Government

Art. 277

Art. 277

Art. 278

Art. 295

Art. 277

P. B. GAJENDRAGADKAR

K. N. WANCHoo

K. c. DAS GUPTA

s. 55


Union of India v.

MaharaJa Krishnagarh

i-. Mills Ltd.

Sinha C.J.

January 20.

SUPREME COURT REPORTS [1961]

is that the writ petition filed by the respondent in the High Court stands dismissed with costs here and in the High Court.

Appeal allowed.

STANDARD VACUUM REFINING CO. OF INDIA v.

ITS WORKMEN AND ANOTHER. (P. B. GAJENDRAGADKAR, K. N. WANCHoo and K. c. DAS GUPTA, JJ .. ) Industrial dispute-Bonus-Living Wage, determination of.

The workmen claimed bonus for the year 1956 equivalent to nine months' total earnings on the ground that the employers had admitted their capacity to pay and that there was a big gap between the wage actually received and the living wage. The employers contended that they were paying the workmen a living wage and they were not entitled to any bonus. The employers relying mainly on the Report of the Textile Labour Committee, 1940, contended that if the living wage in 1940, i.e., R, s. 55/· was multiplied by 3·5 (due to rise in prices) it gave Rs. 192·50 as the living wage in 1956 and they were paying their workmen at a higher rate. The workmen relied on the recommendations of the Indian Labour Conference, 1957, to show that Rs. 209·70 approximat.ed to the standard of the need-based minimum wage and that the average. wag:e paid by the employers was nothing more than this. The Tribunal held that the wages paid were fair but that there was still a gap between the actual wage and the living wage and awarded bonus equivalent to five months' basic wages.

Held, that the employers had failed to establish that they were paying a living wage to the workmen. In construing wage structure the considerations of right and wrong, propriety and impropriety, fairness and unfairness are also taken into account to some extent. As the social conscience of the general community becomes more alive and active, as the welfare policy of the State takes a more dynamic form, as the national economy progresses from stage to stage, and as under the growing strength of the trade union movement collective bargaining enters the field, wage structure ceases to be a purely arithmetical problem.

Wages are usually divided into three broad categories: the basic rninin1um wage, the falr wage and the living \vage.

The concept of these three wages cannot be described in definite words as their contents are elastic and vary from time to time and fro111 place to place. The concept. of a living wage js not a static concept; it is expanding and the number of its constituents and their

respective contents art bound to expand and widen with the

I96I development and growth of national economy. In an underdeveloped country no wage structure could be described as Sta•dard Vacuu"' reaching the ideal of a living wage. It is unreasonable and unsafe Rejini•g Co. •I to treat the Report o! the Textile Labour Committee, 1940, as to India the monetary value of the Jiving wage in 1940 as sound. The v. figure reached.by the committee in 1940 did not represent any- Its Workm1• thing like a living wage; it really represented the minimum need. based wage. Besides, the method of multiplying the figure by 3·5 was materially defective; the proper approach was to evaluate each constituent of the concept of the living wage iii the light of the present day prices.

Even the highest average wage paid by the employers was much below the standard of the living wage though it was above the need.based minimum.

Express Newspapers (P.) Ltd. 'l Union of India, [1959] S.C.R. 12, Standard Vacuum Oil Company v. Their Workmen, [1952] 1 L.L.J. 839, Burmah Shell, etc., Oil Companies in Madras v. Their

Employees, [1954J r L.L.J. 782, Workers of S.V.O.C. Ltd. (Standard Vacuum Employees' Union) v. Standard Vacuum Oil Co. Ltd., (1957]

1 L.L J. 165 and Standard Vacuum Oil Company v. Thtir Employeef, [1954] l L.L.J. 484, referred to.

Burmah-SheU Oil Storage and Distributing Co. of India, Ltd., Bombay v. Their Workmen, [1953] 2 L.L.J. 246, approved.

Quaere :-Whether the workmen would be entitled to bonus ever> if a living wage is paid to them by the employers.

Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur, [1955] r S.C.R. 991 and Sree Meenakshi Mills Ltd. v. Their Workmen, [1958] S.C.R. 878, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 416 of 1!158 an.; 19 of 1959.

Appeals by special leave from the Award dated January 13, 1958, of the Industrial Tribunal, Bombay, in Reference (I. T.) No. 218 of 1957.

M. 0. Seuuvad, Attorney.General, for India, N. A. Pal,. khivala, G. B. Pai and G. GopalakriBhnan, for the appellant (Iu C.A. No. 416 of 58) and respondent No. 1 (In C.A. No. 19 of 1959).

H. R. Gokhal, e, S. B. Naik and K. R. Choudhury, for the respondent No. 1 (In C.A. No. 416 of 1958) and appellant (In C.A. No.19 of 1959).

1961. January 20. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-These two cross-appeals Gaj•ndragadkarJ. arise from an industrial dispute between the Standard Vacuum Refining Co. of India Ltd. (hereafter called

r96r the appellant) antl its workmen (hereafter called the -- respondents). This dispute related to a claim for Standa•d Vacuum b d b h d ' h JJ Refining Co. of onus ma e y t e respn ents agamst t e appe ant India for the year commencmg on January 1, 1956, and v. ending with December 31, 1956. The respondents I" IVo•kmen claimed that for the relevant year they were entitled . -- to receive by way of bonus their nine months' total Ga; end•agadka• J. earnings inclusive of all allowa.nces and overtime and extra-time earnings. After this demand was made the conciliation officer attempted conciliation between the parties but his efforts failed, and so he submitted a failure report under s. 12(4) of .the Industrial Disputes Act, 1947 (XIV of 1947). The Government of Bombay then considered the said report and was satisfied that there was a case for reference of the said dispute to the Tribunal. That is how the present reference carue to be made under s. 12(5) of the Act.

The respondents who have made the present claim include 648 employees; amongst them 524 are operatives and 124 belong to the clerical cadre. Before the Tribunal the respondents' case was tha.t during the conciliation proceedings tho appellant had admitted its capacity to pay and to meet the entire c\a.im of bonus made by them; and so it was urged that it was unnecessary to screen the respondents' claim through the Full Bench formula. They further alleged that the appellant. was not paying a living wage to the respondents and there still remained a large g&p between the wage actually received by them and the living wage to which they would be ultimately entitled. According to the respondents t.heir claim for bonus should be examined solely by reference to the gap which had to be filled up between the two wages ; and in determining the amount of bonus all the legitimate requirements of the respondents should be carefully considered.

This claim was denied by the appellant. It denied the respondents' 11.Jlegation that during conciliation proceedings it had admitted its capacity to pay the entire amount of bonus claimed by the respondents.

It then specifically averred that in law the respondents were uot entitled to any bonus bemwse the

••,

appellant was paying them a living wage and so one 1961

of the essential conditions for the payment of bonus, Standard vacuum namely, the need to fill the gap bet.ween the actual Refining Co, of wage and the living wage was absent in the present India case. The appellant then set out its calculations in v. d h d '.tr !Is Workmen regard to the average wages pai to t e 1uerent categories of respondents and supported its plea that Gajendragadka. J they were not entitled to any bonus at all. It may be added that the appellant had already voluntarily paid three months' basic wages to the respondents by way of bonus, but since the respondents were making a much larger claim the appellant thought it necessary to raise this general iisue of law and to contend that the respondents were not entitled to any bonus at all.

On these pleadings the Tribunal had to consider the said question of law, but it appears that the material produced before it was so limited and meagre that it thought it would not be possible to arrive at any defi. nite opinion on the question of what is the living wage in Bombay; apparently the Tribunal also thought that it was unnecessary to do so, because it has observed that the present dispute did not relate to wage scales and that the living wage was an, illusive concept. Even so, having broadly considered the contentions raised by the appellant it held that "the wages are fair but there is still in a large number of cases a gap between the actual wage and the living wage." On this finding the Tribunal proceeded to examine the other contentions raised by the parties in regard to the quantum of bonus which should be awarded o, nd it reached the conclusion that the respondents were entitled to receive five months' basic earnings " excluding dearness and other allowances and overtime" as bonus for the relevant year.

Accordingly it has made an award to that effect and has issued appropriate directionsl.n that behalf. This award is challenged by the appellant in its Civil Appeal No. 416 of 1958, and it is urged by the leamed Attorney-General on its behalft.hat the tribunal should have held that the appellant was paying a living wage to the respondents and that there was no case for

x96x awarding any bonus to the respondents at all during -- the relevant year. On the other hand the respondents Sta•dard v-um h II b . . .

Refining Co. of c a enge the award y their C1v1l Appeal No. 19 of India 1959, and it is urged by Mr. Gokhale on their behalf v. that the tribunal was in error in not awarding the res- Its Workmen pondents a higher bonus than five months' basic wages. - . That is how the two cross-appeals arise from the Gajendragankar ]. award under appeal.

The learned Attornev-General bas criticised the approach adopted by the tribunal in dealing with the question of living wage. He contends that it was necessary that the tribunal should have carefully examined the material produced before it and should have made a definite finding one way or the other.

He commented on the fact that the finding is vague and indefinite, and he has contended that the tribunal should have made it clear as to what it exactly meant when it observed that in a large number of cases a gap between the actual wage and the living wage subsisted.

This criticism is partly justified. We think it would have been better if the tribuna.l had addressed itself to the question raised before it by the appellant and made a more definite and precise finding. In this connection, it must, however, be added that the oil companies have been raising this plea for some years past and the plea has been consistently rejected by tribunals during all these years. The present tribunal itself has had occasion to deal with this plea raised by the oil distributing companies, and since the plea had never succeeded in the past and no material change had been proved in regard to the relevant t year the tribunal was probably disinclined to treat the

J • plea very seriously and that m1>y explain the approach ,, adopted by it in dealing with the said plea in the 'Ii present proceedings.

Besides, the tribunal took the view, and we think rightly, that the material produced by the appellant in support of its plea is wholly insufficient and meagre.

The point raised is one of general importance and any positive finding on the content of the concept of a living wage in the context of today would naturally affect industrial adjudication in regard to claims of

bonus in all industries. That is why, if the appellant 6 ' was serious about its contention that the living wage Standard vacuum standard had been reached in its wage structure it Refining Co. of should ha.ve produced more satisfactory evidence India which would have enabled the tribunal to attempt the v.

Its Workmen task of concretely defining what the concept of living _ wage means in the context of today. Absence of Gajendyagadhar J. sufficient and satisfactory material may also explain the approach adopted by the tribunal in dee.ling with this issue.

At the hearing before us the learned Attorney- General suggested that we should remand the case to enable his client to lead further and more satisfactory evidence. We have rejected this request. The appellant knew fully well the implications of the plea. raised by it and the very large issue which the tribunal would have to consider in dee.ling with the merits of the said plea. If the appellant was content to support its plea. on certain material and did not attempt to lead more satisfactory evidence it cannot blame the tribune.I for dee.Jing with the matter on the material such as it was. In such a case it would be futile for the appellant to ask for indulgence from this Court at this late stage. It is admitted that the appellant has pa.id three months' basic wages as bonus to the respondents voluntarily for the relevant year, and we were told that an agreement has been reached between the parties in respect of bonus for subsequent years until 1963. They have agreed that for the two succeeding years the decision of this Court will apply and for five years thereafter a specific agreement has been reached for raising the wage-structure and providing for the payment of bonus at the agreed rate.

The learned Attorney-General faintly suggested that the appellant has agreed to pay bonus voluntarily in this manner but the payment is gratuitous and should not affect the main plea raised by it in the present proceedings.

Even so, the question raised by the appellant sounds academic and unrealistic, and that is another reason why it is not entitled to the indulgence for which the learned Attorney-General has pressed before us.

We would, therefore, deal with the point

1961 seriously urged before us on behalf of the appellant on Standard vacuum the material produced before the tribuna, J and such Refining Co. of additional material as was brought to our notice.

India At the outset it is necessary to state that the plea v. raised by the appellant assumes that as soon as a Its ; VorkNien __ living wage standard has been reached by any employ-

Gajendragadkar J. er it would be unnecessary for him to pay any bonus to his employees. The learned Attorney-General has naturally relied on the decisions of this Court as well as the decisions of industrial tribunals in support of his argument that the Full Bench formula which governs the decision of bonus disputes postulates that a claim for bonus can be entertained if two conditions are satisfied; the employer must have made profit in the relevant year, which after the deduction of prior charges leaves sufficient available surplus; and there must be a gap between the wages actually paid to the employees and the living wage standard which they hope to reach in due course. In dealing with bonus claims industrial adjudication has so far proceeded on the aSBumption that in t.he making of profits labour makes its cont\!ibution, and that since it is not receiving a living wage it is entitled to claim that the gap between the actual and the living wages should be filled by the payment of bonus for each relevant year; that no doubt appears to be the result of the relevant decisions on the point (Vide: Muir Mills Co. Ltd. v.

Suti Mills Mazdoor Union, Kanpur('); The Sree Meenakahi Mills LuJ,. v. Their Workmen('). We will revert to this point later. Meanwhile let us proceed to examine the merits of the contention that the appellant is paying the respondents a living wage.

It is well known that the problem of wage structure with which industrial adjudication is concerned in a modern democratic State involves on the ultimate analysis to some extent ethical and social considerations. The advent of the doctrine of a welfare State is based on notions of progressive social philosophy which have rendered the old doctrine of laissez-faire obsolete. In the nineteenth century the relation between employers and employees were usually governed

(I) [1955) I $.C.R. 991. (•l [1958] $.C.R. 878, 88 ...

,·, -, ;.

3 S.C.R.

SUPREME COURT REPORTS 543 r -- - . by the_ economic principle of supply and deD; iLiiJ;-~d-· . z96z the employers thought that they were entitled to hire .-. • b th • t d t d" • h h .. - Standard Va<••"' , a ur on . e1r erms an. o 1sm1ss t e same at t e1r Refining co~ of ch01ce subject to the specific terms of contract between India them, if any. The theory of " hire and fire "as well

v. _ . as the _theory of." supply and demand" which were /Is WorAmtn allowed free scope under the doctrine of laissez-faire . -,. 1 l h Id th fi Id . I . Ga; end1•&••••• • no onger . o e e . n eonstructmg a. . wage . structure in a. given case industrial adjudication does e take into account to some extent "'Considerations of righf and wrong, propriety and impropriety, fairness and unfairness. As the social conscience of the genera.I community becomes more a.live and active; as the welfare policy of the State takes a. more dynamic form, as the national economy progresses from stage to stage, and as under the growing strength of the trade union movement collective bargaining enters the field, wage structure ceases to be a pu:ely arithmetical problem. Considerations of the financial position of the employer and the state of national economy have their say, and the requirements of a wcirkt:nan living in a civilised and progressive society also ccime. to be recognised. It is in that sense', and rio 'doubt to a: limited extent, that the social. philosophy of the age supplies the background for the decision of industrial disputes as ·· to wage structure. As 1\lrs. Barbara

Wootton has pointed out,'the social and ethical impli, cations of the arithmetic and the economics of wages cannot be ignored in the present age ('). · It is because of this socio-economic aspect of . the wage structure that industrial adjudication postulates that no employer can engage industrial labour unless he pays it what may be regarded as the minimum basic wage. If he cannot pay such a wage he has no l'ight to engage labour, and no justification for carrying on his industry; in other words, tho employment of sweated labour which would be easily available to the employer in all undeveloped and even under-developed countries is ruled out on the ground that the principle of supply and demand has lost its validity in the

(1) ••The Social Foundtlons of We Policy'" b7 BarbO:i Wootton-

- Allen &: Unwin. -19-'.5 ' 1 • 10

I96I matter of employment of human labour, and that it - is the duty of the society and the welfare State to Slafldard V aeuum t k d ' d ' 1 R•fi•i•g co. of a.ssure ho every wor fmahn egatghe m m ut stfr1tah oera-

Itldi• t1ons t e payment o w at m e contex o e times v. appears to be the be.sic minimum wage. This position Ii. Work"''" is now universally recognised.

In dealing with wage structure it is usual to divide Gaj.,.dr•gadk•r J. wages into three broad categories: the basic minimum wage is the be.re subsistence wage; above it is the fair wage, and beyond the fair wage is the living wage. It would be obvious that the concepts of these three wages cannot be described in definite words because their contents are elastic and they are bound to vary from time to time and from country to country.

Sometimes the said three categories of wages are described as the poverty level, the subsistence level and the comfort or the decency level. It would be difficult and also inexpedient to attempt the task of giving an adequate precision to these concepts. What is a subsistence wage in one country may appear to be much below the subsistence level in another; the same is true about a fair wage and a living wage; what is a fair wage in one country may be treated as a living wage in another, whereas what may be regarded as a living wage in one country may be no more than a fair wage in another. Several attempts have nevertheless been made to describe generally the contents of these respective concepts from time to time. The most celebrated of these attempts was me.de by Mr. Justice Higgins in his judgment in 1907 in a proceeding usually referred to as the Harvester Case.

Sitting as President of the Commonwealth Court of Conciliation and Arbitration, the learned Judge posed the question as to what is the model or criterion by which fairness or reasonableness is to be determined, and he answered it by saying that " a fair and reasonable wage in the case of an unskilled labourer must be an amount adequate to cover the normal needs of the average employee regarded as a human being living in a civilised community." (1)

(1) Cited by Foend0< in ,"Bettor Employment Relations", •95i

PP 177, 178,

In their work "Industrial Democracy " published in z96z 1920 Sidney and Beatrice Webb observed that "there 51 ~-;. is a growing feeling not confined to trade unionists ; ning :!.."~,,. that the best interests in the community can only be Irui•a attained by deliberately securing to each section of v. the workers those conditions which are necessary for Its w .. hnu• the continuous and efficient fulfilment of its particular G . ,-dA J function in the social machine " (p. 590). •1•• '"'" "' In 1919 the Commissioner of the Bureau of Labour Statistics conducted a tentative budget enquiry in the United States of America, and analysed the objects with reference to three concepts, namely, the pauper and poverty level, the minimum of subsistence level and the minimum of health and comfort level; the last was taken for determining the standard of a living wage. This classification was approved by the Royal Commission on the Basic Wage for the Common wealth of Australia, and it proceeded through norms and budget enquiries to ascertain what the minimum of comfort level should be. The Commission quoted with approval the description of minimum health &nd comfort level in the following terms :

"This represents a slightly higher level than that of subsistence, providing not only for the material needs of food, shelter and body covering, but also for certain comforts such as clothing sufficient for bodily comfort, and to maintain the wearer's instinct of self-respect and decency, some insurance against the more important misfortunes--death, disability and fire-good education for the children, some amusement, and some expenditure for self. development " (1 ).

According to the United Provinces Labour Enquiry Committee wages were classified into four categories. poverty level, minimum subsistence level, the subsistence plus level, and the comfort level(•). The third category would approximate to the fair wage, and the fourth to the living wage.

According to the South Australian Act of 1912 the living wage means "a sum

(1) Cited in the Report of the Committee on Fair Wagea published b7 the Govemment of Iuclia, lllniatcy of Labour-pp. 5 and 6.

(2) Ibid. p. 6.

I96' sufficient for the normal and reasonable needs of the

SI d -d v average emplovee living in a locality where work •• ar acuum d 'd " . . d . t b d " 0 th Refining co. of un er cons1 erat10n 1s one or 1s o e one . n e India other hand, the Queensland Industrial Conciliation

v. and Arbitration Act provides that the basic wage Its Workmen paid to an adult male employee shall not be less than is "sufficient to maintain a well-conducted employee 'Jajindragadkar f. of average health, strength and competence, and his wife and a family of three children in a fair and average standard of comfort, having regard to the conditions of living prevailing among employees in the calling in respect of which such basic wage is fixed, and provided that in fixing such basic wage the earnings of the children or wife of such employee shall not be taken into account "(' ).

The Fair Wages Committee which made its Report in 1949 broadly accepted the view expressed by the Royal Commission on the basic wage for the Commonwealth of Australia which we have already cited.

According to the Committee, " the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, clothing and shelter but a measure of frugal comfort including education for the children, protection against illhealth, requirements of essential social needs, and a measure of insurance against the more important misfortunes including old age(')." The Committee emphasised that "the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficiency of the worker. For this purpose the minimum wage must also provide for some measure of education, medical requirements and

amenities"(').

In this connection it would be useful to refer to the observations made by Philip Snowden in regard to the concept of living wage. These observations a.re generally cited with approval by industrial tribunals. Sa.id Snowden, "it may be possible to give

(1) Cited in the Report of the Committee on Fair Wages published by the Government of India, Ministry of Labour-p . .5

(2) Ibid. p. 7.

(3) Cited in the Report of the Committee on Fair Wages published by the Government of India, Ministry of Labour-p. s.

a. precise or satisfactory definition of a. living wage, ,95, but it expresses a.n idea., a. belief, a. conviction, a. demand. The idea of a living wage seems to come Standa>d Vacuum from the fountain of justice which no man has ever Refti•8 Co. of seen, which no man has ever explained, but which we

1 ~:i• a.U know is an instinct divinely implanted in the Tis w 07;,.,. human heart. A living wage is something far greater than the figures of a wage schedule. It is at the Gajendragadkur ]. same time a. condemnation of unmerited and unneces. sary poverty and a. demand for some measure of justice (1 )." On the problem of converting the concept of living wage into monetary terms this iA • hat Snowden had said: "The amount of the living wage in money terms will vary as between trade and trade, between locality and locality. But the idea is that every workman shall have a wage which will maintain him in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and physical well-being, enough to enable him to qualify to discharge his duties as a citizen"('). It is in this broad and idealistic sense that Art. 43 of the Constitution has referred to the Jiving wage when it enunciates the Directive Principle that the State shall endeavour, inter alia, to secure by suitable legislatiou, or economic organisation, or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. This Court has recognised this idealistic position of the concept of living wage in the case of Express Newspapers (Private) Ltd. v. The Union of India(').

It would thus be obvious that the concept of a living wage is not a static concept ; it is expanding and the number of its constituents and their respective contents are bound to expand and widen with the development and growth of national economy.

That is why it would be impossible to attempt the

{I) Philip Snowden "The Living Wage", p. 1.

(>) Ibid. p. 6,

(3) [1959) S.C.R. n, 7g-82.

I96I task of determining the extent of the requirement of - the said concept in the context of today in terms of Slandard Vacuum d h 1 1 d Refining Co. af rupees, anas an pies on t e scnty matena p ace

India before us m the present proceedmgs. We apprehend v. that it would be inexpedient and unwise to make an Its Workmen effort to concretise the said concept in monetary terms

; ajendragadkar 1 with any degree of definiteness or precision even if a "fuller enquiry is held. Indeed, it may be true to say that in an under-developed country it would be idle to describe any wage structure as containing the ideal of the living wage, though in some cases wages paid by certain employers may appear to be higher than those paid by others. As observed in its Report by the Commission of Enquiry on "Emoluments and Conditions of Service of Central Government Employees, 1957-59 ", "taking a standard family as consisting of four members of whom only one is an earner, the average income of a family at the highest figure during the nine years ending in 1957·58 would work out at Rs. l,166/- per annum or about.· Rs. 97/- per mensem.

The minimum wage cannot be of the order of Rs. 125/- when on the b<tsis of the national income the average for a family works out only to Rs. 97/- per mensem." Therefore, looking at the problem of industrial wages as a whole it would not be possible to predicate that our wage structure has reached even the level of a fair wage. It is.possible that even so some employers may be paying a very high wage to their workmen, and in such a case it would be necessary to examine whether the wages paid approximate to the standard of the living wage; but in deciding this question the proper approach to adopt would be to consider whether the wage structure in question even approximately meets the legitimate requirements of the components constituting the concept of a living wage. For that purpose it may not be essential, and on the material produced before us it is not even possible, first to determine what in terms of money those constituents would denote in the context of today. The learned Attorney.

General's argument that we should first determine independently what amount in terms of rupees, annas

a.nd pies would be treated as a living wage today

obviously ignores the complexity of the problem and 1961 the poverty of the material adduced by the appellant Standard va, uum in the present proceedings.

Refining Co. of There i8 another aspect of this question to which Indio we must incidentally refe1. We are dealing with the . v. contents of the living wage in the present appeal not Its Workmen for he pu; po, seb ofhfixing a 11

wae tshtrtucure ; ththe con- Gajendragadkar J. tent10n rarneu y t e appe ant is a smce e wages paid to the respondents have reached the stage of a living wage there is no gap between the actual wage and the living wage, and so there is no occasion to make a claim for bonus. While dealing with this contention there would be no justification for ignoring the idealistic character of the living wage as specified in Art. 43 of the Constitution ; and so, it would be necessary to enquire whether the wage in question satisfies the tests laid down by the Royal Commission on the basic wage for the Commonwealth of Australia which has been endorsed by the Fair Wages Committee's Report and broadly approved by this Court in the Express Newspapers' case (1).

The question which we must now consider is whether the appellant has succeeded in showing that its wage structure has reached the standard of the living wage which has been specified as one of the ultimate objectives by Art. 43 and which is the ideal that the working population of the country hopefully looks forward to achieve. It is no doubt a bold and tall claim but the learned Attorney-General contends that the appellant has succeeded in substantiating the said claim.

Before the tribunal the Union filed statements to show that the wage structure prevailing amongst the respondents is no more than the need-based minimum wage. In support of this plea they referred to the resolution which has been unanimously passed at the 15th Session of the Indian Labour Conference held in New Delhi on July 11 and 12, 1957. This resolution makes a declaration about the wage policy which should be followed during the Second Five Year Plan.

The Tripartite Committee which passed the resolution considered the relevant notes placed before it, and held that they would be useful a.s background material for

(1) [1959] S.C.R. 12.

'96' wage fixation. It theu took note of the difficulties in

Standard vac .. um assssing quantitativly the indiviual importance of

Refining co. of var10us factors affectmg wage fixat10nsuch as product.

India ivity, cost of living, the relation of wages to national v. income and so on, and proceeded to discuss the wage Ils Wor.W.on policy with specific reference to minimum wages and

Gajmdragadkar 1 fair wages. With regard to the minimum wage fixa- . tion it was agreed that the minimum wage was need. based to ensure the minimum human needs of the industrial worker irrespective of any other considera. tions. To calculate the minimum wage the Committee accepted the following norms and recommended that r they should guide all wage fixing authorities including Minimum Wage Committees, Wage Boards, adjudicators, etc. The five norms accepted by the Committee were stated by it in these terms :

"(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded. {ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr. Aykroyd for an average Indian adult of moderate activity.

(iii) Clothing requireme.nts should be estimated at a per capita consumption of 18 yards per annum which would give for the average workers' family of four, a total of 72 yards.

(iv) In respect of housing, the rent corresponding to the minimum area provided for under Government's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage.

(v) Fuel, lighting and other ' miscellaneou~' items of expenditure should constitute 20% of the total minimum wage. " Having set forth these norms the Committee recognised the existence of instances where difficulties may

be experienced in implementing its recommendations, and so it added that wherever the minimum wage fixed went below its recommendations it would be incumbent on the authorities concerned to justify the

circumstances which prevented them from adherence 1961 to the norms prescribed by the Committee. Having 5 -- . d h f' h d tandard Vacuum thus unammously agree on t e content o t e nee - R ,, . c " , eJ'ning o. oJ based minimum wage the Committee proceeded to India observe that as regards fair wages it was agreed that v. the vVage Board should go into the details in respect ,,, Workmen of each industry on the ha.sis of the recommendations -- t d th R t f th C 'tt F • Gajendragadkar J con ame m e epor o e omm1 ee on air Wages. It also placed on record its opinion that the said recommendations should be made applicable to employees in the public sector (Ex. U-3).

The respondents treated this unanimous resolution as the basis for their claim that the wages paid to them by the appellant were no better than the need-based minimum contemplated by the said resolution. Accordingly they set out the diet requirements extracted from Health Bulletin No. 23, and converted the said requirements into monetary terms at Rs. 123·75 nP. Having thus arrived at the calculation of the value of the diet requirements of workmen (Exs. U-4and U-5) they proceeded to make calculations about the money content of the need-based minimum wage at Rs. 209·70 (Ex. U-6). This conclusion has been reached on the basis that the minimum diet requirements would be Rs. 123·75 nP., clothing requirements would be Rs. 9/-, rent would be Rs. 42/- and miscellaneous expenditure at 20% of the total of the three preceding items would be Rs. 34·95 nP. Their case was that in view of the fact that Rs. 209·70 nP. approximates to the standard of the need-based minimum wage the claim that the wage structure of the appellant has reached the living wage standard cannot be sustained.

On the other hand the appellant sought to justify its claim principally on the calculations made by the Textile Labour Committee which had made its report in lll40. It may be pointed out that in its statement (Ex. C-6) the appellant has used the expressious " fair wage" and" living wage" somewhat indiscriminately, and seems to have assumed that the norms prescribed by the Tripartite resolution had relation to a fair wage and not the need-based minimum wage. That, however, does not appear to be accurate, According to

r96r the Textile Committee's report the money-content of -- the living wage in 1940 was Rs. 50/· to Rs. 55/- per 5R 1~.d•d vcacuufm month. This total was reached on tree.ting Rs. 23/- '''"'"K o. 0 c d .

R 1 I h .

Inaia a.s 100 requirements, s. 21a.s ouse-rent reqmrev. ments and Rs. 20/- a.s miscellaneous requirements. This Its WOt'kmen total is taken a.s the ha.sis by the appellant in making -- its relevant calculations.

The appellant has then ; ajendragadkar J. referred to the norms prescribed by the Tripartite resolution and has assumed that the total of the needhased minimum wage would be Rs. 40-14-0, and since there had been a rise in the cost of living after 1940 the appellant has multiplied Rs. 41/- by 3·5 which gave the amount of Rs. 143·50 nP. Thus, according to the appellant the need-based minimum would not be the said a.mount of Rs. 209/- as calculated by the respondents. Then the appellant added ti.tat even if Rs. 55/- was taken as the equivalent of the living wage in 1940 and the same is multiplied by 3·5 one gets Rs. 192·50 nP. and that should represent the living wage in. the relevant year.

Having thus reached the figure of Rs. 192·50 nP. as the monetary value of the living wage in the relevant year, the appellant purported to support its plea that its wage-structure had reached the status of a living wage by relying on the average wages paid by it to the respective categories of its employees. Taking the class of opertives which comprises 524 workmen the average wage packet consisting of the basic salary, the dearness allowance and the value of the amenities supplied by the appellant to them equals Rs. 273·65 nP.

The average wages in regard to the 124 clerks reach tbe figure of Rs. 370·11 nP., and the average wages for the total employees taken together reach the figure of Rs. 301·16 nP. According to the appellant whichever figure is taken it is much above Rs. 192·50 nP., and that must lead to the inference that the living wage standard has been reached by the appellant.

That is how both the parties presented their respective contentions before the tribunal and before us.

We have already indicated that the appellant's calculations are made on the assumption that tho figure of Rs. 50/- to Rs. 55/- per month can be taken

to be the monetary cqntent of the living wage in 1940. z96z In _support of this. assumpti?n te appellant s_trongly S1.andard vacuum rehes on the Textile Committee s report, . This Com, 1 Reftning co. of mittee was appointed in 1940. and was charged with; India the duty of conducting an investigation into the. v. question of adequacy of wages in cotton _textile, Itdf{orkm•• industry of the Province of Bombay and to kindred. G . d--d. 1 , . -· a; en raga ar . matters relating to the industry. It was askeg to enquire, inter alia, into the adequacy or inadequacy of wages e[\.rned in relation to a living wage standard, and if it found that in any occupation, centre or unit of the industry wages were inadequate it was. asked to enquire into and report upon, the reasons therefor.

The Qom, mittee realised that the data supplied before it was insufficient but neverth\'less it thought that it would qe possible o consider the bro!!-d .constituents of the co_ncept of the living wage !Iona use the said measure." notfor .the determinatiqn of a. dispute or

th~ grant of an award but only for asc¢rtaining h; t a general manner whether the present level of earnings is or i~. _qot adt\quate in relation to it." The .Com-. mittee then examined . the material whiCh .was available to it; it took the view that the living. wage standarc; t should be detE!rmiried in. respect of the 'family. unit, and for its calculation it . converted the total' number ofniembers in the family into stah<; lard consumption unjts according to the formula evolved by" Dr. Aykroydjn his Health Bullet'iri No .. 23. Acdor'd-. ing to this formula eac~ family 'Yas assumed to consist' of a workman, his wife and two''depend.ants or. children and their consumption units vrere treated respectively as 1·8 and 0·6 each respectiv"; lly, the total ?i>nsumption" units thus being 3·0. W <irking on this basis the~ Com- mittee came to the conclusion that Rs. 22/8Fper morith would meet the dietary requirements of the workman's family. Then the Committee considered the problem of housing .. and the expenditure on rent and other items Of expenditure such as cfothing~ fu!il and light- . ing and miscellaneous. In regard to the housing

tlie "Committee thought that for a family of four 180 sq. ft. may be held as the minimum in Bombay tliough according to it the floor area may be put a

1'61 little higher in less overcrowded places: For this area.

S , - 4 v the Committee thought Rs. 12 would be adequate lanaar "'"""' t d " th ' 11 ' f d' R•Jinin1 co. of ren , an ior e m1sce a.neous items o expen 1ture India Rs. 20 was treated as adequate. It is on these ca.lcula.- •· tions that the a.mount of Rs. 55 was held by the 11' WorAmen Committee to be the monetary value of the living

Gaj••drapdAar 1, wage standard. Naturally enough the appellant treats this conclusion as the foundation for its claim that it is paying a living wage to the respondents.

In our opinion it would be unreasonable and unsafe to treat the conclusions of this Committee as to the monetary value of the living wage in 1940 as sound and to make it the basis of our calculations today.

Incidentally the method of multiplying the figure deduced by the Committee by 3·5 is materially defective. The proper approach to adopt would be to evaluate ea.ch constituent of the concept of the living . wage in the light of the prices prerailing today a.11d ··\thus reach a proper conclusion; but a.pa.rt from it, the ma.in objection against adopting the figure reached by

ihe Committee is that even in 19~0 the said figure could not be properly regarded as representing anything like a living wage standard. The object with which the Committee proceeded to hold its enquiry was in a sense negative; it was to determine the question as to how far the prevailing wages were . deficient having regard to some reasonable concept of a living wage standard. The material before it was insufficient to determine satisfactorily the money. content of the said concept and the Committee itself was conscious that its calculations were bound to be broad and genera.I and conditioned by the data available to it, and what is more important conditioned by the notions of social justice then prevailing. Since 1940 the concept of social justice has ma.de very great progress and the Constitution of the country has now put a sea.I of approval on the ideal of a. welfare State. Besides, it may seem entirely unrealistic to talk of a living wage in the light of our national economy in 1940 and to evaluate its content at Rs. 50 to Rs. 55 per month. It is obvious that the Committee was really thinking of what is' today described

as the minimum need-based wage, and it found that x96x judged by the said standard the current wages were 5 .a d v deficient. In its report the Committee has used the ;, fi:;.8 (;";,."~"' word "minimum " in regard to some of the constitu- India en ts of the concept of living wage, and its calculations v. show that it did not proceed beyond the minimum level ''' WOYkmen in respect of any of the said constituents. Therefore, G . d-dk 1 th h h l" d d " h "1"' '"8" •• oug t e expression " 1vrng wage sta.n a.r as been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than the need-based minimum wage at that time. If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory. All that the calculations made by the appellant would show is that the wages pa.id to the respondents are somewhat higher than what would be required by the concept of the needbased wage. It is obvious that between the needba.sed wage and the living wage there is a. very long distance.

This conclusion is strengthened by some of the observations made by the Commission of Enquiry on " the Emoluments and Conditions of Service of Central Government Employees". In its report the Commission has referred to the Tripartite resolution on the need-based minimum wage, and in the light of the exhaustive material produced before it, and after consulting experts and specialists whose advice was available to it, it has reached the conclusion that (r.) the minimum remuneration worked out according to the recommended formula. may be of the order of Rs. 125-/ as compared to Rs. 52·50 which with some exceptions is the upper limit of minimum wages fixed under the law, (b) that it would be about 70 to 80% higher than the rates generally prevailing in the organised sectors of industry where wages are fixed either by collective bargaining or through conciliation and adjudication proceedings, and (c) that it would be well above the highest wages, i.e., Rs. 112/- (in cotton textiles industry in Bombay-average for 1958) which any considerable number of unskilled workers are at present getting in the country (p. 65). It would thus

r96r be seen that the figures thus worked out by the Com-

Standa;;;-;.,, uum mission inh te light ohf theh Tripartite d'.esolution

R ifini g co of support t e mference t at t e correspon mg figure

• 1:dia specified by the Textile Report in 1940 approximates to

v. the concept of the need-based minimum wage and no Its Wo•kmcn more. We may incidentally add that having regard -- to its terms of reference the Commission did not feel Gajenfragadkar J. it advisable to recommend the increase of the Central

employees' wages to the level of the need-based minimum for reasons set out by it in its report. That is why it thought it reasonable to recommend that " the minimum remuneration payable to a Central employee which at present is Rs. 75 per mensem should be increased to Rs. 80 per menseni (p. 74).

Reverting to the components of the concept of the living wage once again it may be relevant to observe that the principal component of the dietary requirements of a workman's family is generally examined in the light of Dr. Aykroyd's formula (1).

According to Dr. Aykroyd "in dealing with diet it is well to remember the distinct.ion between an optimum and an adequate diet. An optimum diet is one which ensures for the functioning of the various life processes at their very best, whereas an adequate diet maintains these processes but not at their peak levels. While it is desirable to work up to standards laid down for an optimum diet, it is essential to know whether enough food is being provided; every effort should be made to ensure at least the standards fixed for an adequate diet." Then the requirements of an adequate diet are examined. Dr.

Aykroyd, however, took the view that having regard to our national economy even an adequate or balanced diet may not be within the reach of every one, and so he observed that " it would be wise to effect a compromise by temporarily sacrificing the ideal to the necessity of making the improvement economically possible." With this object he has tabulated the requirements of the improved diet which contains the

(r) Health Bulletin No. 23-The Nutritive Value of Indian Foods and the P.'anning of satisfactory Diets-By Dr. Aykroyd and revised by Dr.

V. N. Patwardhan--Published hy the Nutrition Research LaboratorieR, Indian Coun1.:il of Medical Research, Coonoor.

essential nutrients but which would not be as costly z96z as the balanced diet. Now there can be no doubt that 51 d -d-V • . an ar °''"',, in dea.hng with the monetary value of the content of Refi•••g co. of the concept of the living wage it would not be enough India to evaluate the diet requirement with reference to the v. improved or even the balanced diet. The improved Its Workm••

vegetarin diet. which has generally ben ta.ken into Goje•d:;.gadk .. 1 account m ma.kmg the relevant ca.lcula.t1ons would be. wholly inappropriate in ma.king calculations with regard to a living wage. Under the living wage a

workman would be entitled to claim an optimum diet as prescribed by Dr. Aykroyd. Similarly, the requirements as to clothing and residence which have been recognised in the Tripartite resolution, though appropriate in reference to a need-based minimum wage, would have to be widened in relation to a. living wage.

Besides, in determining the money value of the living wage it would be necessary to take int.o account the requirements of "good education for children, some amusement, and some expenditure for self-development ", and it is hardly necessary to emphasise tha.t the content of these requirements cannot be easily converted into terms of money and they would obviously vary from time to time and would show a.n expansive tendency with the growth of national economy and with th.e advent of increa.sing prosperity for the nation as a whole and for any given industry in particular. Therefore, in our opinion, on the material available in the present proceedings it is impossible to resist the conclusion that even the highest a.vera.ge of Rs. 370·11 nP. shown by the appellant by calculating wages pa.id to the clerical staff is much below the standard of the living wage. In this connection it may be pertinent to observe that in deciding the question a.s to whether the li\"ing wage bas been introduced by any employer normally it would be necessary to examine tl; le wage structure pa.id to the releva.nt working class a.s a whole. It is well-established that the claim for bonus is recognised on the basis of the contribution ma.de by the working cla.ss as a whole to the profits of the employer, and we think it would be invidious, a.nd on pri!lciple unrea.sona.ble, to isolate

r95r a. few cases where higher wages ma.y be pa.id and to

Standard Vacuum claim immunity from the payment of bonus in respect Refining co. of of such cases. In the absence of special circumstances

India prima facie the most expedient method to adopt v. would be to take the a. verage of the wages paid to Its Workmen the relevant working class as a whole. It is, however,

Gaicndragadkar 1 unnecessary to pursue this matter further and to pro- . · nounce a. definite decision on it because, as we have just indicated, even taking the clerical category where the average works highest at Rs. 370II nP. we feel no hesitation in holding that the said average is much below the standard living wage. The said average is much above the need-based minimum a.nd may fall in the medium level of a. fair wage; but that itself would show that it is much below the standard of the living wage. Similarly, Rs. 273·65 nP. which is the a.vera.ge of the operatives a.s well as Rs. 301·16 nP. which is the average of the operatives and the clerical staff taken toget.her may be regarded as constituting wage-structure which is above the need-based minimum structure a.nd may be treated a.s approximating to the lower level of the fair wage. One has merely to take into account. the various constituent elements of the living wage to realise that these a.vera.ges fall far short of the standard of the living wage. In reaching such a. conclusion it is hardly necessary first to arrive a.ta. concrete determination a.s to the money value of the living wage.

In our opinion, taking the broad 81Spect of the concept of the living wage into consideration, a.nd hearing in mind its idealistic a.nd expanding cha.ra.cter, it would be possible, a.nd not very difficult either, to sa.y a.bout a. given wage such a.s the one with which we are concerned in the present appeal that it does not reach the standard of a living wage. We must accordingly hold that the claim made by the a.ppella.nt that it is paying a. living wage to its employees cannot he sustained.

It still remains to consider some of the decisions to which our attention was invited. In Standard Vacuum Oil Company v. Their Workmen(') the tribunal had to consider the claim for bonus made by the employees, and in determining t.he quantm of bonus it addressed

{I) [1952) 1 L.L.J. 839.

itself to the question a.s to the extent of the ga.p be- 1961 tween the actual wage a.nd the living wage which should 51 d -d-I' . an aT acuwm be filled by the a.we.rd of bonus. In that conneot1on Refining co. of the tribunal referred to the Textile Committee's report India and assumed that Rs. 50/- to Rs. 55/-, that is to sa.y, v. on an average Rs. 52-8-0 represented the money Its wo, kmen value of a living wage in 1940. On that assumption the G .end-~. 1 tribunal ma.de certain calculations and held that its •J ••K •r a.ward may be regarded as the first approximation towards attaining the living wage standard. The learned Attorney General bas relied on this decision in support of his argument that the ha.sis supplied by the Textile Committee's report was treated a.s valid for the purpose of determining the money value of the living wage. For the reasons which we have already indicated we must hold that the tribunal was in error in tree.ting Rs. 52-8-0 as the money value of the living wage even in 1940. The same comment falls to be ma.de about the calculations made by the La.hour Appellate Tribune.I in Burmah-SheU, etc., Oil Companies in Madras v. Their Employees('). In that case the Appellate Tribune.I thought that if 50% be added to the minimum wage of the employees that may &BBist them to attain the goal of the living wage, and this oonclusion was based on the Textile Committee's report. Similarly, the ca.lcula.tions ma.de by the Industrial Tribune.I, Madras, in Workers of S. V. 0. O. Ltd. (Standard Vacuum Employeea' Union)

v. , Standard Vacuum Oil Oo. LW.. (•), suffers from the same infirmity.

Therefore, the three industrial decisions on which the a.ppella.nt relied cannot assist it in establishing its contention that a. living wage is pa.id t.o the respondents.

In Burmah-SheU Oil Stora1Je and Distributing Oo. of India, Ltd., B<"nbay v. Their Workmen (8) the Labour Appellate Tribune.I had occasion to oonsider the content of the living wage. In that connection it referred to the Report of the Fair Wages Committee, and observed that the level of na.tiona.1 income in India is so low that the country is unable to afford to prescribe by law a minimum wage which would correspond to the oonoopt of a I.Wing wage. " The mdder is set in

(I) [1954) I L.L.J. 782.

I•) (1957) I LL.J. 16,.

(3) (1953) 2 LLJ. a46.

'96' the direction of a. living wage", observed the Appellate

Standa-;;;, a, uum Tribunal, "but the destination is not yet w!thin sight; Re.fining co. of the gradual emergence of a welfare State will naturally India help but even here progress is necessarily slow". In

v. our opinion, this statement shows the correct approach Ils Workmen to the problem of determining the content of the con-

Gajendragadkar ]. Cept of the living wage. . .

In &andard Vacuum Oil Omnpany v. Their Employees (1) the Labour Appellate Tribunal was called upon to consider the plea that the companies were paying a living wage to their employees. In dealing with the said contention the Appellate Tribunal observed that "the measurement of the living wage standard in terms of money has not been prescribed by law of the country, nor, as far aR we are aware, has been determined anywhere in any scientific basis".

In its opinion, it was not possible nor necessary to fix the amount with exactitude which should form the minimum living wage after an exhaustive enquiry for considering the question of bonus, because, according to the principle laid down the whole gap between the existing wages and the living wage need not be filled up. That is why it thought that it would be sufficient for the purpose if an approximate idea can be formed by ta.king into account the approximate expenditure on the necessary items of requirements of the living wage standard.

On these considerations the plea raised •by the companies was rejected. It would thus he seen that the oil companies have been persistently making the claim before the industrial tribunals that they need not he called upon to pay bonus to their ernp1oyees on the ground that they a.re paying them a living wage;' and tis plea has so far been consistently rejected. As we have already pointed out it may partly be because of this trend of industrial decisions that in the present proceedings the tribunal did not think it necessary to 'deal with the point elaborately or to make

a definite findi_ng. .

Before we part with this appeal we ought to add that if we had upheld the appellant's claim it would have been necessary for us to consider the relevance

(•/ (t9;4) 1 L.L.J. 48<j.

\Ill'

and validity of the respondents' altr-rnative claim that 1¢ 1 in C>J.se living wage is paid by the upp<'llant to them 5 d -dh h b h . h tan a' V acuu"' t ey s ould e allowed as are Ill t e profits made by Refining co. of the appellant during the relevant year on the basis of India profit-sharing. It is t.rue that industrial adjudication v. so far has consistently emphasised the fact that the Its Workmen payment of bonus is intended to fill the gap between G . d-dk 1 actual wages and the living wage.

Obviously no •Jen raga ar occasion has so far arisen to consider whether a claim for bonus can be made even after the standard of living wage has been attained because no employer has so far succeeded in showing that a living wage stand- . ard has been reached. We are making these observations because we wish to make it clear that our decision in the present appeal should not be taken to mean that as soon as a living wage standard is reached no claim for bonus can be made by the worklllen; that is a question which may have to be considered on its merits if and when it arises. Until the stage is reached where a plea that living wage is paid can be reasonably made and proved it is desirable that industrial adjudication in regard to the payment ofbonusshould not be unnecessarily complicated by raising such a plea from year to year.

That takes us to the appeal preferred by the res- . pondents. The tribunal did not think it necessary to work out calculations because, according to the bonus formula, it was conceded that the available surplus in the hands of the appellant was very large.

It, however, took into account the wage scales and salaries' in the appellant's concerns and other relevant

factors and concluded that awarding five months' bonus "strikes a fair balance between the conflicting standards of the workmen and the c:impany ".

Mr. Gokhale contends that jive months' bonus is too meagre and that the respondents were entitled to a much higher rate of bonus. On the other hand the learned Attorney-General contends that we should put a ceiling in the matter of awarding bonus so that excessive claims for bonus would be discouraged. In 'our opinion it would be inadvisable and inexpedient to put such a ceiling in the matter of awarding bonus.

1961 It is now well established that in awarding bonus

Standa-::iacuutn industrial adjudication has to take into account the

R•fining co. of legitimate claims of the industry, its shareholders who

India are entitled to claim a return on the investment made v. by them and the workmen. This Court has consist.

Its Workm•• ently refused to lay down any rigid rule or formula

G ., d agadk 1 which would govern the distribution of the available

•J " ' "' • surplus between the three claimants. The decision of this question must inevitably depend on a proper assessment of all the relevant facts. If wages are small and the profits are high then the workmen would be entitled to have a high rate of bonus. Indeed, if an employer makes consistently high profits and the wages continue to be low it may justify the increase in the wage structure itself; in other words, the award of bonus would have some relation to the wages paid to the employees. It is also true that unreasonably high or extravagant claims for bonus cannot be entertained just because the available surplus would justify such a claim. As has been observed by the Labour Appellate Tribunal in Burmah.SheU Oil St<Jrage and Distributing Co. of India LW,., Bombay v. Their Workmen(') care must be taken to see that the bonus which is given is not so excessive as to create fresh problems in the vicinity that upset emoluments all-r1>und or that it creates industrial . discontent or the possible emergence of a privileged class. The impact of the award of bonus in an industrial dispute on comparable employments or on other employments in the region cannot be altogether ignored, though its effect should not be over-estimated either. Having regard to the fact that the distribution of available surplus must inevitably depend in each case on its own facts this Court has generally refused to interfere with the decision of the tribunal on the ground that any decision on the question of distribution should be left to its discretion. It is only where the award passed by the tribunal appears to this Court to be wholly unreasonable and to be the result of the failure of the tribunal to take into account the necessary relevant facts that the jurisdiction of this Court under Art. 136 can be successfully invoked. In the present caae the

(1) (1953) • L.L.J. z46.

tribunal has considered all the relevant factors and has come "to the conclusion that five months' bonus Standa:.i-;,., •• ,.

would meet the ends of justice.

We do not see any Refining co. of reason to interfere with this award.

India In the result both the appeals fail and are disv. b h Its Worknten missed. There will be no order as to costs in ot the appeals.

Gajendragadkar ].

Appeals dismissed.

BHAGWATI SARAN AND ANOTHER v.

THE STATE OF UTTAR PRADESH. (B. P. SINHA, C.J., s. K. DAS, A. K. SARKAR,

N. RAJAGOPALA AYYANGAR AND

J. R. MUDHOLKAR, JJ.) Iron ad Steel Control-Notification fixing maximum prices- W hether ultra vires-If notification discriminates between "controlled stockholders" and" registered stockholders "-Report to Magistrate- Facts constituting the offence, meaning of-New Point-Iron and Steel (Control of Production and Distribution) Order, r94I, Cl. IIB -Essential Supplies (Temporary Powers) Acl, r946 (XXIX of

r9~). s. II-Constitution of India, Art. r4.

A police officer made a report under s. II of the Essential Supplies (Temporary Powers) Act, 1946, regarding a contravention of cl. .n-B(III), Iron and Steel (Control of Production and Distribution) Order, 1941, read with s. 8 of the Essential Commodities Ordinance, 1955 to the Magistrate against the appellants who were registered stockholders that they had sold iron bars at prices higher than the controlled rate. After enquiry the Magistrate framed a charge against the appellant under s. 7, Essential Supplies (Temporary Powers) Act •. 1946, read with cl. ll-B(III) of the Control Order. The appellants contended that the charge ought to be quashed on the grounds, (i) that the notification of the Controller fixing the maximum sale price of the several categories of iron and steel was ultra vj1es the rule-making power in

cl. n-B(i) of the Control Order, (ii) that the notification was discriminatory and violated Art. 14, and (iii) that the complaint could not be taken cognisance of by the Magistrate because the report of the police officer did not set out the facts constituting the offence as required by s. II of the Act. The first two grounds were raised for the first time before the Supreme Court.

Held, that the notification fixing the rates was intra vires

cl. n-B(i) of the Control Order. The notification did not omit any class mentioned in cl. n-B(i) from its purview; it included

I96I

January io.

STANDARD VACUUM REFINING CO. OF INDIA

ANOTHER. (P. B. GAJENDRAGADKAR

K. N. WANCHoo

K. c. DAS GUPTA, JJ

s. 55

CIVIL APPELLATE JURISDICTION

M. 0. Seuuvad

N. A. Pal

G. B. Pai

G. GopalakriBhnan

H. R. Gokhal

S. B. Naik

K. R. Choudhury

GAJENDRAGADKAR

Gaj•ndragadkarJ.

s. 12(4)

Industrial Disputes Act, 1947

Government of Bombay

s. 12(5)

Gajendragadka

Bombay

Gokhale

Gajendyagadhar

Gajendragadkar

India At the outset it is necessary to state that the plea v. raised by the appellant assumes that as soon as a Its ; VorkNien  living wage standard has been reached by any employ-

Gajendragadkar J. er it would be unnecessary for him to pay any bonus to his employees.

Barbara

Wootton

Higgins

Beatrice Webb

Bureau of Labour Statistics

United States of America

Australia

According to the South Australian Act

Fair Wages Committee

Commonwealth of Australia

Philip Snowden

Sa.id Snowden

Snowden

Art. 43

Art. 43

Commonwealth of Australia

Express Newspapers

Art. 43

New Delhi

July 11 and 12, 1957

Aykroyd

India

vVage Board

s 100

s. 21

ajendragadkar

Aykroydjn

Gajenfragadkar

V. N. Patwardhan

Standard Vacuum Oil Oo. LW.. (•)

Labour Appellate Tribunal

Art. 136

Gajendragadkar

BHAGWATI SARAN

STATE OF UTTAR PRADESH

B. P. SINHA

s. K. DAS

A. K. SARKAR

N. RAJAGOPALA AYYANGAR

R. MUDHOLKAR

Constitution of India

s. 8

Essential Commodities Ordinance, 1955

s. 7

Art. 14

Supreme Court