W.P.(C).No. 32250 of 2017 (E)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **FRIDAY, THE 24TH DAY OF NOVEMBER 2017/3RD AGRAHAYANA, 1939** **WP(C).No. 32250 of 2017 (E) ----------------------------** |**PETITIONERS:**|**PETITIONERS:**| |---|---| |**------------**|| |**1.**|**R.P.C PAPER MILLS PVT. LTD.,**| ||**THOLICODE.P.O., PUNALUR,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**R.SREENATH, S/O.RAMASWAMY, AGED 52,**| ||**RESIDING AT ARUNA SHREE, VETTIPUZHA SOUTH,**| ||**KOMALAM KUNNU, PUNALUR.**| |**2.**|**THE CANARA PAPER MILLS PVT. LTD.,**| ||**KURISUMMOOD.P.O., CHANGANASSERY,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**MATHEW C MOOLAYIL, S/O.CHACKO,**| ||**62 YEARS, RESIDING AT MOOLAYIL HOUSE,**| ||**RUBI NAGAR.P.O., CHANGANASSERY.**| |**3.**|**GRAMOX PAPER & BOARDS LTD.,**| ||**PUTHUPADY.P.O., MUVATTUPUZHA,**| ||**ERNAKULAM, REPRESENTED BY ITS DIRECTOR,**| ||**M.C.JOSEPH, S/O.JOSEPH CHACKO, AGED 57,**| ||**RESIDING AT MOOLAYIL HOUSE,**| ||**KUTHUKUZHI.P.O., KOTHAMANGALAM.**| |**4.**|**GREENLAND PAPER MILLS LTD.,**| ||**ALAMCODE.P.O., ATTINGAL,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**A.M.ASHRAF, S/O.ABDUL KHADER, AGED 58,**| ||**RESIDING AT SULFI MANZIL,**| ||**ALAMCODE.P.O., ATTINGAL.**| |**5.**|**KUNNATH PAPER MILLS PVT. LTD.,**| ||**MEENKARA, THRISSUR,**| ||**REPRESENTED BY ITS DIRECTOR,**| ||**FRANCIS KUNNATH, S/O.PAUL KUNNATH,**| ||**AGED 37, RESIDING AT KUNNATH HOUSE,**| ||**TAGORE NAGAR, PUTHEN VETTUVAZHI,**| ||**CHEMPUKAVU, THRISSUR.**| **--2--** **--2--** ## **WP(C).No. 32250 of 2017 (E) ---------------------------** **6. COCHIN KADALAS, BRAHMAPURAM, THRIPUNUTHURA, ERNAKULAM, REPRESENTED BY ITS EXECUTIVE DIRECTOR, ABRAHAM CYRIAC, S/O.N.S.CYRIAC, NJAVELLI HOUSE, MARADU.P.O. THRIPUNITHURA.** ## **BY ADV. SRI.M.SREEKUMAR** **RESPONDENTS:** ## **------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, LABOUR AND SKILLS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. MINIMUM WAGES ADVISORY BOARD, REPRESENTED BY ITS CHAIRMAN, THOZHIL BHAVAN, 4TH FLOOR, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM- 695 033.** **R1 BY SRI.K.V.SOHAN, STATE ATTORNEY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 32250 of 2017 (E) ----------------------------** ## **APPENDIX** |**PETITIONERS' EXHIBITS:**| |---| |**EXHIBIT P1: TRUE COPY OF GO (MS) NO.119/2014/LBR**| |**DATED 8.10.2014.**| |**EXHIBIT P2: TRUE COPY OF THE RECOMMENDATION FORWARDED BY**| |**CHAIRMAN OF 2ND RESPONDENT TO THE GOVERNMENT**| |**DATED NIL WHICH WAS ISSUED TO THE**| |**1ST PETITIONER UNDER RIGHT TO INFORMATION ACT**| |**ALONG WITH A COVERING LETTER NO. 160/2017**| |**DATED 19.8.2017.**| |**EXHIBIT P3: TRUE COPY OF DRAFT NOTIFICATION**| |**NO.20334/E1/2015/LBR DATED 29.2.2016.**| |**EXHIBIT P4: TRUE COPY OF HEARING NOTICE NO.137/2015/(11)**| |**M.W.A.B DATED 31.7.2015 ISSUED BY THE**| |**2ND RESPONDENT.**| |**EXHIBIT P5: TRUE COPY OF GO(MS) NO.32/2017/ LBR**| |**DATED 9.5.2017.**| |**RESPONDENTS' EXHIBITS**<br>**:**<br>**NIL.**| |**//TRUE COPY//**| |**P.S. TO JUDGE**| |**mbr/**| ## **A.K.JAYASANKARAN NAMBIAR, J. -------------------------------** ## **W.P.(C).NO.32250 OF 2017 (E) ----------------------------------Dated this the 24[th] day of November, 2017** ## **J U D G M E N T** The petitioners are companies registered under the provisions of the Companies Act engaged in paper production and allied activities. In the writ petition, the petitioners challenge Ext.P5 Notification dated 9.5.2017, whereby, the State Government fixed the minimum wages of employees engaged in the paper industry in accordance with the provisions of the Minimum Wages Act, 1948. The challenge against Ext.P5 Notification is premised primarily on three contentions, namely, that the Notification was published by the State Government, after considering the recommendations of a Sub-Committee that was constituted to advise the Government in the matter of fixing the minimum wages, and the said Committee comprised of representatives of employers, who did not have any connection with the paper industry, for which the minimum wages was fixed. The second ground of challenge against Ext.P5 Notification is that, while the Sub-Committee had called for the objections of the persons concerned against the proposals in the draft Notification, and **W.P.(C).No.32250/2017** **2** the petitioners had responded to the said Notification and submitted their objections within the time permitted under the Notification, the petitioners were thereafter not called for any personal hearing before finalising the proposals leading to Ext.P5 Notification. The contention therefore is that there was a violation of a fair procedure, which in turn led to an erroneous fixation of minimum wages by the State Government. Thirdly, it is contended that, as per the provisions of Section 3(1A) of the Minimum Wages Act, the State Government could have refrained from fixing minimum rates of wages in respect of any scheduled employment, in which, it was found that there were less than 1000 employees engaged in such employment in the whole State. It is pointed out that, in the instant case, the said provision could have been invoked finding that the total number of persons employed in the paper industry was less than 1000. The contention therefore is that there was no need for the State Government to fix a minimum rate of wages in respect of the paper industry within the State. 2. A counter affidavit has been filed on behalf of the 1[st] respondent, wherein, with reference to Section 9 of the Minimum Wages Act, and in particular, the constitution of the Committee and **W.P.(C).No.32250/2017** **3** Sub-Committee, it is stated that all that the Section envisages is that the employers and employees in the scheduled employment should have representation in the Committees constituted as per Section 9 of the Minimum Wages Act, but it is not necessary that there should be representatives of employers and employees of any particular scheduled employment. The decisions of this Court in **Jayachandran** **v. State of Kerala - [1984 KLT 903] and Kerala Hotel and Restaurant Association v. State of Kerala - [1988 (2) KLT 344]** are cited in support of the said contention. It is further stated that the Sub Committee that was constituted by the State Government held sittings in different Districts, and employees and employers representing the paper industry and paper products industry attended the hearing and put forward their suggestions. The preliminary Notification was published as early as on 29.2.2016, and it was thereafter, and after considering the objections put forward by the representatives of the industry that the final Notification [Ext.P5] was issued by the State Government. 3. I have heard Sri. M.Sreekumar, the learned counsel for the petitioners as also Sri. K.V. Sohan, the learned State Attorney for the **W.P.(C).No.32250/2017** **4** State Government. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from a perusal of the averments in the writ petition, as well as the Notification that is impugned in the writ petition that, the State Government has fixed the minimum wages applicable for employees in the paper industry through Ext.P5 Notification. The procedure to be followed by the State Government for fixing and revising minimum wages is as contemplated under Section 5 of the Minimum Wages Act. In essence, the State Government can choose between two procedures for the purposes of fixing the minimum wages under the Minimum Wages Act. The State Government could have either appointed Committees and Sub-Committees to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or it could have, by a Notification in the Official Gazette, published its proposals for the information of persons likely to be affected thereby, and specified a date not less than two months from the date of the Notification, on which the proposals would be taken into consideration. After following either of the procedures indicated **W.P.(C).No.32250/2017** **5** above, the State Government had to form an opinion with regard to the fixation of wages, and proceed to fix the minimum rate of wages through a Notification that was published thereafter. In the instant case, while it would appear that the State Government had appointed a Sub-Committee to hold enquiries in the matter of fixation of minimum wages, it is also seen that, through a separate preliminary Notification, the State Government had also called for the views of the stakeholders, and in response to the said Notification, there was no objection raised by any of the stakeholders. The objections that were filed by the petitioners and others appear to have been pursuant to a notice issued by the Sub-Committee that was constituted to advise the State Government in the matter. In my view, the relevance of the composition of Committees under Section 9 of the Minimum Wages Act, arises wholly in a case where the State Government chooses to follow the procedure of obtaining an advise from Committees and Sub-Committees constituted by it, to look into the aspect of fixation of wages. Under the said procedure, since there is no scope for considering any objection from the stakeholders in the industry concerned, Section 9 mandates that in the Committee constituted by the State Government, there shall be representatives of employers **W.P.(C).No.32250/2017** **6** and employees in the scheduled employment, who shall be equal in number, and further, independent persons not exceeding[1] /3rd of its total number of members. The said provision under Section 9 are designed to ensure that the composition of Committees and Sub Committees that are appointed to advise the Government is such that only persons who have a knowledge of the particular industry, in respect of which, the minimum wages is fixed, are involved in the decision making process of the Government. In the instant case, while Committees were appointed in accordance with the procedure contemplated under Section 5(1)(a), the State Government also went ahead with the procedure under Section 5(1)((b) by issuing a preliminary Notification and calling for objections from the stakeholders within the time specified in the said Notification. If, in response to the said Notification, the stakeholders did not file any objections, then they are to be treated as having lost their chance to put forward their case before the State Government. In the instant case, I am of the view that even without the petitioners submitting their formal objections pursuant to the preliminary Notification, their objections were considered by the Committee that was constituted to advise the Government in the matter of fixation of wages. The **W.P.(C).No.32250/2017** **7** petitioners cannot, therefore, be said to be prejudiced in that respect. As regards the contention of the petitioners with regard to an erroneous composition of the Committee, while, as already noted above, the provisions of Section 9 may not be very relevant in the context of fixation of minimum wage by the State Government by following the procedure under Section 5(1)(b) of the Act, I find that one of the members of the Committee, that was constituted, was the President of the Chamber of Commerce, which represented all the industries including the paper industry. Under the circumstances therefore, I do not find force in the contention of the learned counsel for the petitioners that there was an irregularly in the composition of the Committee under Section 9 either. Lastly, with regard to the submission of the learned counsel for the petitioners that the State Government ought to have exercised its discretion in terms of Section 3(1A), I am of the view that the contention of the petitioners cannot be accepted. As is evident from a reading of the statutory provision itself, it is the discretion of the State Government as to whether or not to fix a minimum rate of wages for a particular scheduled industry, even under circumstances where the number of employees engaged in such **W.P.(C).No.32250/2017** **8** employment in the industry in question is less than 1000 in the State. If, it was the policy decision of the State Government, to fix a minimum wage even for such employees, then it is a decision which this Court will not interfere with, in the absence of anything to suggest that the said policy decision was irrational or vitiated by mala fides. Resultantly, I see no reason to interfere with Ext.P5 Notification that is impugned in the writ petition. The writ petition, in its challenge against the same, fails, and is hereby dismissed. **A.K.JAYASANKARAN NAMBIAR JUDGE** **prp/25/11/17**