TMI Blog1992 (2) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... ulp and Paper or Board Manufactory' with effect from 15th July, 1979. 2. As both these petitions involve common question of facts and law, with the consent of the learned Advocates, these petitions have been heard together and are being disposed of by this common Judgment. 3. The facts giving rise to the present petition may now be stated: The petitioner manufacture Mill-board by sun-dry process. According to the petitioners, manufacture of Mill-board by sun-dry process is very different from paper manufacturing by automatic process. The petitioners have averred in the petitions that the Board manufactories are of two types: (i) Mill-board manufactory run by manual process (by sundry process), which are by their very nature seasonal, and (ii) Board manufactory run with fully automatic process carried out mechanically. The petitioners have described the manufacturing process in detail and have stated that the Industries run by the petitioners have widely different characteristics from the pulp and paper industry and also the board manufacturing industry by automatic process in the matter of nature of employment and the work involved in the employment. According to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the State Government had no authority to issue notification fixing minimum rates of wages and, the Notification dated 2nd July, 1979 therefore should be quashed and set aside. The learned Counsel referred to the provision of Section 3(1-A) of the Act and submitted that as there are less than one thousand employees in the Board Manufacturing Industries, the Government could not have issued the notification fixing minimum rates of wages and, therefore, the said notification must be quashed. Mr. Patel, learned Counsel for the petitioners referred to the averments made in Para 11 of the petition and submitted that the total employment in the Board manufacturing industries is less than 500 employees and, therefore, the State Government had no jurisdiction to issue notification fixing minimum rates of wages for the industries in question. The learned Counsel also submitted that the fact that the total employment in the' Industry is less than 500 employees was pointed out to the Chairman of the Minimum Wages Committee for the Pulp and Paper or Board Manufactory and, therefore, in view of this position, no notification could have been issued by the State Government fixing minim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of ascertaining as to whether in the whole State, less than one thousand employees are engaged in the Scheduled employment, part of the entry, cannot be taken into account. As is clear from the Notification, the Government had appointed a Committee to hold inquiries and to advise it, in the matter of fixation of minimum rates of wages in respect of the employment in any pulp and paper or board manufactory and after making necessary inquiries, the Committee submitted its report to the Government of Gujarat. A copy of the report of the Committee has been produced by the learned Assistant Government Pleader before the Court. The said report clearly shows that the total number of employees working in pulp and paper or board manufactory industry in the State of Gujarat is 3563. This report of the Committee, which has been accepted by the Government after due consideration, has not been challenged in this petition. Therefore, the report clearly shows that in the whole State, there are more than one thousand employees engaged in the employment in any pulp and paper or board manufactory and, therefore, the Government had power and authority to issue the Notification in question fixin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minimum rates of wages for the employees. But, if the number of employees is less than one thousand, then the Government may or Government may not fix the minimum rates of wages for the employees in a given employment, but that does not mean that the Government has no power to issue Notification fixing minimum rates of wages in an employment if the number of employees is less than one thousand. In view of our this conclusion also, we do not find any substance in the first contention raised by Mt. Patel that the Notification in question is bad in law because in the whole State, there are less than one thousand employees engaged in the board manufacturing industry. Even otherwise, in all, there are 15 petitioners. The petitioners have not given any break-up to show that the total employment in industry is less than five hundred in number. The petitioners have averred in the petition that there are approximately 18 Units of Mill-board manufactory by sundry process and that the total employment is less than five hundred employees, but, necessary particulars have not been supplied by the petitioners. In the representation dated July 5th, 1977, which was addressed to the Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, rendered in the case of the Management of Shri Chalthan Vibhag Khand Udyog Sahakari Mandali Ltd. v. G.S. Barot, reported in 1979 II LLJ 383. As against this, Miss Varma, learned Advocate appearing on behalf of the respondents, submitted that the neutralization sought to be achieved by granting special allowance under the impugned Notification is not more than 100%. 9. In order to appreciate the rival submissions advanced by the learned Counsel, it would be appropriate to have a close look at the Notification issued on 2nd July, 1979 fixing minimum rates of wages for the employees engaged in the employment in question. The said notification is in two parts. By the first part, wages for each category of employees are fixed taking the cost of living index number 260 as the basis. By the second part, a special allowance is also fixed, which is linked with the rise of every five points in the costs of living index number at the rate of Rs. 0-15 ps. and such a rise is to be made effective at the interval of six months. The first interval was stated to commence on or from 1st October, 1979. It cannot be gainsaid that this special allowance fixed for workmen engaged in the scheduled emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Udyog Sahakari Mandali Ltd. v. G.S. Barot, Member, Industrial Court, Gujarat reported in 1979 II LLJ 383 the Hon'ble Supreme Court of India had occasion to consider the validity of an award passed by the Industrial Court, by which the graduated dearness allowance of the unskilled employees was increased. It has been held by the Hon'ble Supreme Court that though 100% neutralization is not advisable as it will lead to inflation, full neutralization may be permissible only in the case of lowest class of employees. It has been further held in the said case that the purpose of grant of dearness allowance is to neutralize the increase in the costs of living due to rise in price and full or cent per cent neutralization can be achieved if the increase, in the cost of living is fully compensated so that the pay of the worker is not adversely affected. It is also held that an award of more than 100% of an increase in the costs of living would be more than neutralization and would in effect give the worker an increased wage and the result would be the worker would be getting an increased wage packet whenever there is a price rise, a result which would not have been envisaged in maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, it becomes clear that even 100% neutralization is not sought to be achieved in three categories of employees, namely, skilled, highly skilled and clerical-A. In view of the provisions of Section 3 of the Act, the Government is entitled to review the minimum rates of wages fixed by it and to revise them and by this time, revision of minimum wages must have taken place so far as the employees employed in the scheduled employment in question are concerned. It would, therefore, be in the fitness of things not to upset the position as prevailed on the implementation of the said notification. It is a settled principle of law that the remedy under Article 226 of the Constitution of India is discretionary in nature and in a given case, even if some action or order challenged in the petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. 13. In the case of Balvantrai Chimanlal Trivedi, Manager, Raipur Mfg. Co. Ltd., Ahmedabad v. M.N. Nagrashna and Ors. reported in 1959 II Lab LJ 837 certain employees of appellant-Mill had made an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimately, by the impugned decision, there has not been any material injustice, the writ Court may be well justified in refusing to interfere simply because there has been some infraction of law. In the facts and circumstances of the case, it appears to us that selection of respondent No. 5 for the contract in question is otherwise justified and even if the Board is directed to consider the cases of tenders afresh on the basis of the materials before it and on critical evaluation of the tenderers, the Board can justly accept the tender of Respondent No. 5 for the reasons indicated earlier. It may be noted here that a public authority, in order to inspire confidence in its functioning for the public interest and to satisfy the public accountability, which it owes, must act fairly and reasonably and if on the score of public interest, a higher tender is accepted in preference to a lower tender, it should not only record reasons for such decision, but also communicate its decision to the concerned parties. Although it does not appear that the appellant was informed of the Board's decision to select respondent No. 5, the reasons for such selection have been clearly indicated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal Court of Appeal, which it is not. Having regard to the facts of the case, we are of the view that neutralization beyond the permissible limit of 100% under the impugned notification is only with respect to lowly paid workman engaged in the scheduled employment in question and has not resulted in a material failure of justice. To declare the special allowance part of the impugned notification to be illegal, is bound to result into untold hardship and miseries to them and it might create a lot of difficulties also in recovery of excess amount paid to them pursuant to the said notification. Therefore, in our view, this is a fit case where we should refuse to exercise our discretionary powers under Article 226 of the Constitution of India by striking down the part of the notification granting special allowance. 16. In the result, both these petitions fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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