Goodricke Group Limited & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 4600 Cal

                   IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE


Present :
The Hon'ble Justice Raja Basu Chowdhury

                            WPA 11701 of 2023

                  Goodricke Group Limited & Ors.
                               -Vs.-
                  The State of West Bengal & Ors.

For the petitioners     :     Mr. Arijit Chaudhuri,
                              Mr. Arunava Ghosh,
                              Mr. Soumya Majumder,
                              Mr. Sharmistha Ghosh,
                              Mr. Amit Ghosh,
                              Mr. Victor Chatterjee.

For the State           :     Mr. Joydeep Kar, Sr. Adv.,
                              Mr. Santanu Kumar Mitra,
                              Mr. Amartya Pal,


Heard on                :     11.07.2023

Judgment on             :     01.08.2023


Raja Basu Chowdhury, J.:-

1. The present writ application has been filed, inter alia, praying for

  direction upon the respondents to forbear from giving effect to the

Advisory dated 27th April, 2023, and for a declaration that the said

Advisory signed by the respondent no.2 is illegal, void and of no

effect.

2. The petitioners are owners or lessees of tea plantations in West

Bengal and are carrying on business, inter alia, of growing,

harvesting and manufacturing tea at such plantations. The

petitioners contended that in usual course they employ workers for

carrying out its business operations and that the provisions of the

Minimum Wages Act, 1948 (hereinafter referred to as the "said Act")

apply in respect of such workers.

3. That the Government of West Bengal by a notification dated 17th

February, 2015 had constituted a Minimum Wages Advisory

Committee for the State of West Bengal (hereinafter referred to as

the "said Committee") in exercise of the powers conferred by clause

(a) of sub-section (1) of Section 5 read with Section 9 of the said

Act. The tenure of the said Committee was for a period of 2 (two)

years from the date of the issue of the aforesaid notification. It is

the petitioners' case that prior to issue of the said notification, the

wages of the workers of the tea plantations in West Bengal were

fixed by tripartite settlements between the employers and the

workers of such plantations. The settlements were entered into as

per the provisions of the Industrial Disputes Act, 1947.

4. Last of such settlement was entered into on 20th February, 2015,

and was to remain in force till wages were to be fixed in terms of the

said Act. It is also the petitioners' case that pending revision of

minimum wages, in terms of the notification dated 17 th February,

2015, the Government has from time to time issued Memoranda,

enhancing the minimum wages of workers. Issuance of Memoranda

to enhance the minimum wages is dehors the provisions of the said

Act. It is, however, the case of the petitioners that the petitioners

had accepted the aforesaid Memoranda and had paid such amount

principally to avoid any industrial unrest. Since then, the

petitioners' financial condition had worsened and such fact was

also notified on behalf of the petitioners, by a letter dated 10th

June, 2022, addressed to the Chief Minister of the Government of

West Bengal. Unfortunately, on 27th April, 2023, the Labour

Commissioner, Government of West Bengal has issued an Advisory

whereby the wages of daily rated workers of the organized tea

gardens have been raised to Rs. 250/- per day, as a part of long

term wage settlement with effect from 1st June, 2023, pending

finalisation of the Charter of Demands, including finalisation of the

revision of minimum wages of the workers in the employment of the

plantations in West Bengal. It would appear that by a letter dated

8th May, 2023, the petitioners had questioned the said Advisory

issued by the Government through their advocates letter and had

called upon the Government to withdraw the said Advisory. Since,

despite receipt of such letter the Advisory was not withdrawn, the

present writ application has been filed.

5. Mr. Chaudhuri, learned senior advocate appearing on behalf of the

petitioners, by referring to the provisions of the said Act, submits

that the said Act does not recognize any authority of the State

Government to unilaterally raise the wage structure, especially

when an advisory committee has been set up by the Government to

determine minimum wages. It has also been argued on behalf of the

writ petitioners that the Labour Commissioner while issuing the

advisory, was at best, enjoying the status of a conciliator. By

referring to the provisions of the Industrial Disputes Act, 1947,

elaborate submissions have been advanced, as regards the powers,

the extent of duties and responsibilities of a Conciliation Officer. It

has also been contended that the Labour Commissioner do not

enjoy any right or authority either under the Industrial Disputes

Act, 1947 or under the said Act, to issue the aforesaid Advisory. Mr.

Chaudhuri, by placing reliance on a judgment delivered by a Co-

ordinate Bench of this Hon'ble Court in the case of Terai Indian

Planters' Association & Anr. v. State of West Bengal & Ors.

registered as WP 19434 (W) of 2018, delivered on 3 rd December,

2018, submits that this Hon'ble Court had the occasion to consider

the issue whether in a pending conciliation proceeding under the

Industrial Disputes Act, the Labour Commissioner has the power

and jurisdiction to revise the rate of minimum wages as an interim

measure. By referring to the aforesaid judgment, it is submitted

that the Co-ordinate Bench of this Hon'ble Court, upon taking note

of the submissions made by the parties by, inter alia, observing that

although, a power has been conferred under the said Act, to revise

the minimum wages upon following due procedure, however, since,

the said Act does not provide for any interim measure, found the

action of the State to be bad and dehors the provisions of the said

Act and accordingly the memorandum to revise wages was set

aside. By relying on the aforesaid judgment, he says that the

present Advisory dated 27th April, 2023 is no different from the one

which has been set aside by the Co-ordinate Bench of this Hon'ble

Court.

6. In the given facts, it is submitted that this Court may be pleased to

restrain the respondents from giving effect or further effect to the

Advisory dated 27th April, 2023, and a declaration may be issued

that the Advisory signed by the respondent no.2 is illegal, void and

of no effect.

7. Per contra, Mr. Kar, learned senior advocate representing the State

respondents, submits that although, by a notification dated 17th

February, 2015, the said Committee had been set up under Section

5 of the said Act, for advising the Government in matters regarding

fixing and revising of minimum wages and despite, by a further

notification dated 4th March, 2015, the said Committee having been

reconstituted for holding enquiry and for advising the Government

in matters of fixing and revising of minimum rate of wages payable

to employees employed in the Plantation of Tea in the State of West

Bengal, there has been no final outcome as regards determination

of wages under the said Act.

8. By drawing attention of this Court to a letter dated 21st February,

2015, it has been submitted that a tripartite Settlement was

entered into on 20th February, 2015, regarding revision of wages

and rates for daily rated workers. By placing reliance on the said

Settlement which is a tripartite settlement, it is submitted that not

only the petitioners but all the workers' unions are parties to the

same and that the said settlement has come into force with effect

from 1st April, 2014 and shall remain in force till minimum rate of

wages become effective under the provisions of the said Act.

9. According to Mr. Kar, the minimum wages under the said Act are

yet to be finalized. By still further referring to clause no. 3 (III) of

the said settlement, it is submitted that the State Government has

been entrusted with the responsibility to take care of the interest of

the employers and the plantation workers for development of tea

industry. It is, on the basis of the aforesaid authority that the State

Government from time to time as and by way of interim measure

had raised the wages of the tea garden workers, initially from Rs.

132.50/- to Rs. 150/- and subsequently from Rs. 150/- to Rs.

159/- by Memoranda dated 29th December, 2017 and 15th March,

2018, respectively. Both the aforesaid Memoranda have been

accepted by the parties and have been given effect to.

Subsequently, when the wages of the daily rated workers were

increased to Rs. 169/-, with effect from 1 st October, 2018, as and

by way of interim measure that the same was challenged by filing a

writ application and by an order dated 3rd December, 2018, the said

Memorandum was set aside for reasons noted hereinabove.

Subsequently, the Government had once again enhanced the wages

of daily rated workers from Rs. 176/- to Rs. 202/- by issuing a

Memorandum dated 28th January, 2021, and again from Rs. 202/-

to Rs. 232/- by issuing a further Memorandum dated 14th June,

2022. Neither of the aforesaid Memoranda were challenged by the

petitioners, and the same have duly been given effect to.

Subsequently, however, when the Government in consideration of

the Charter of Demand issued by one of the unions and by holding

a meeting of the parties was, inter alia, pleased to issue the

aforesaid Advisory dated 27th April, 2023, the same has been

challenged by filing the present writ application.

10. Mr. Kar submits that the last wage settlement had been entered

into on 20th February, 2015. Although, such a settlement provided

for interim increase pending finalisation of minimum wages under

the said Act, however, in the interregnum, by reasons of rise in the

whole sale price index, it had become necessary for the State

Government to take appropriate steps to ensure a living wage,

conditions of work ensuring decent standard of life are met in

relation to workers associated with the tea industry. It is for such

reason that the rise in the wage structure had been necessitated.

By referring to the advisory, it is submitted that what has been

fixed is not beyond the living wage and it is within the policy of the

State to enhance the wages. The State is under an obligation in

terms of Article 43 of the Constitution of India to secure a living

wage and conditions of work securing decent standard of life and

full enjoyment of leisure and social and cultural opportunities for

its workers. The Hon'ble Supreme Court has recognised such right

of the State. In support of his aforesaid contention, he places

reliance on a judgment delivered by the Hon'ble Supreme Court in

the case of Standard Vacuum Refining Co. of India v. Workmen

& Anr., reported in AIR 1961 SC 895. By placing reliance on a

judgment delivered by the Hon'ble Supreme Court in the case of

Centre for Public Interest Litigation v. Union of India and Ors.,

reported in (2016) 6 SCC 408, it is submitted that if the policy is

for public good, the Courts ought not to interfere.

11. On the question of finalization of minimum wages it has,

however, been the joint prayer of both the parties that necessary

directions may be issued for finalization of the minimum wages at

the earliest.

12. Heard the learned advocates appearing for the parties and

considered the materials on record.

13. From the sequence of events narrated hereinabove, it would

transpire that on 17th February, 2015, the Government had

constituted a Minimum Wages Advisory Committee to hold enquiry

and advise the State Government. Subsequently by a notification

dated 4th of March, 2015, the committee was reconstituted for

holding enquires and to advise the State Government in the matter

of fixing and revising of minimum rate of wages payable to the

employees employed in the plantation of tea in the State of West

Bengal.

14. In the interregnum, however, a tripartite settlement was entered

into between the parties whereunder the rate of wages of daily rated

workers in the tea gardens were increased in the following manner:

"a) (i) The rates of wages of the daily rated workers of the tea gardens of Hill areas (Darjeeling, Kalimpong and Kurseong Sub-Divisions) would be increased as under:

With effect from 01.04.2014 From Rs 90.00 per day to Rs 112.50 (Rs 90.00+ Rs 17.50 + Rs 5.00 (one time allowance) per day With effect from 01.04.2015 From Rs 112.50 per day to Rs 122.50 per day With effect from 01.04.2016 From Rs 122.50 per day to Rs 132.50 per day

ii) The existing practice of payment of Extra Leaf Price (ELP) in respect of tea gardens of Hill areas will be continued.

b) i) The rates of wages of the daily rated workers of the tea gardens of Dooars and Terai regions would be increased as under:

With effect from 01.04.2014 From Rs 95.00 per day to Rs 112.50 per day With effect from 01.04.2015 From Rs 112.50 per day to Rs 122.50 per day With effect from 01.04.2016 From Rs 122.50 per day to Rs 132.50 per day

ii) The rates of Extra Leaf Price (ELP) for tea gardens in Dooars and Terai regions will be revised from the date of signing of this Agreement i.e. 20.02.2015 as follows:

For output upto 6 kgs above Base Task @ Re.3.00 per kg For output above 6 kgs above Base Task @ Rs.3.50 per kg"

15. I find that the said settlement has come into effect from 1 st

April, 2014 and shall remain in force till the minimum rate of wages

become effective under the provisions of the said Act. The wage

structure, however, appears to have been revised from time to time.

On the basis of a Memorandum issued on 29th December, 2017 and

again on 15th March, 2018, the rate of wages of a daily rated

workers were revised to Rs. 159/- per day. Both the aforesaid

revisions were accepted by the parties and given effect to. None of

the parties had questioned the authority of the State in issuing

and/or enforcing such revision of wage structure. Subsequently, on

31st August, 2018, when a further revision was effected, the same

was challenged by filing a writ application, inter alia, on the ground

that the Labour Commissioner did not have the jurisdiction to

enhance the same.

16. Records would reveal that a Co-ordinate Bench of this Hon'ble

Court was, inter alia, pleased to set aside the same, holding that the

Labour Commissioner lacked the jurisdiction and/or authority to

grant the interim relief. The aforesaid order, however, does not

reflect whether the Co-ordinate Bench of this Hon'ble Court was

enlightened with regard to the revision of such interim tripartite

settlement by issuing Memoranda which were not only accepted by

the parties but were acted upon. It is, however, also curious to note

that even after this order was passed, the Labour Commissioner, by

issuing a memorandum and a clarification dated 20th January,

2021 and 8th January, 2021, respectively, had further enhanced

the wages of the daily rated workers at the rate of 15 per cent so

that it would be rounded off to Rs. 202/-. And again, by another

Memorandum dated 14th June, 2022 the Additional Labour

Commissioner was, inter alia, pleased to provide as follows:

"A meeting was held on 02/02/2022 at the Conference Hall of Shramik Bhavan, Siliguri with the representatives of Trade Unions of Tea Garden Workers

and the Representatives of Tea Garden Owners' Associations to discuss the issue of enhancement of wages/salary of the organized Tea Garden Workers. After careful consideration of the matter, the Labour Department, West Bengal hereby notifies that the owners of the tea gardens will raise the wages of daily rated workers to Rs. 232/- per day from Rs. 202/- per day, thereby enhancing an amount of Rs. 30/- per day as an interim measure with effect from 01/01/2022, pending finalisation of the Charter of Demands including finalisation of the revision of Minimum Wages in the employment of the plantation in West Bengal. Similarly, the salary of the monthly rated tea garden employees will also be raised @ 15% of their existing gross salary w.e.f. 01/01/2022 as an interim measure. The Tea Garden owners are requested to pay the arrear of wages/salary payable to the daily rated workers as well as the monthly rated employees, by virtue of this increase, within July, 2022 in two instalments."

17. There appears to be no challenge to the aforesaid increase as

well. Records could further reveal that by a notice dated 10th June,

2022, the Consultative Committee of Plantation Associations had

placed before the Chief Minister diverse facts and had in paragraph

12 thereof, requested that the proposed increase of 15 per cent may

be split over 24 months period commencing from 1st June, 2022. It

would not appear that any objection was raised as regards the

authority or jurisdiction of the Labour Commissioner to decide this

issue. On the contrary, it would be apparent that the parties had

submitted for an intermediate settlement before the Labour

Commissioner pending finalisation of the minimum wages.

18. From the records, it would also appear that there has been

interim enhancement on yearly basis, obviously the increase was

necessitated taking into consideration the increase in the whole

sale price index. Such interim arrangement, obviously, had to be

worked out since, the workers could not be called upon to wait

indefinitely for the settlement of Wages under the said Act. I also

notice that after the Charter of Demand was received from the

unions, the Labour Commissioner, by communication dated 21 st

March, 2023, had forwarded the same for consideration to the

owners of the Tea plantations. It, however, does not appear from

the documents on record whether the petitioners had objected to

the Labour Commissioner making an intermediate arrangement of

enhancing the wages. It was only when the Advisory dated 27th

April, 2023 had been issued that the petitioner caused an

advocate's letter to be issued on 8th May, 2023 questioning the

authority and/or jurisdiction of the Labour Commissioner to

enhance the wages.

19. I find that the Labour Commissioner had from time to time

enhanced the wages pending finalisation of the minimum wage

settlement. Although, it has been strenuously argued on behalf of

the petitioners that the Government did not have the authority and

jurisdiction to adjudicate, in relation to interim enhancement of

wages, pending finalisation under the said Act, I, however, find that

it is the petitioners who had, in fact, all along accepted the

enhancement of wages of the daily rated workers working in the tea

garden. The contention of the petitioners that to avoid industrial

unrest, the petitioners had been accepting the enhancement and

the present enhancement, if accepted, would jeopardise the

petitioners' interest, does not appear to be convincing. I am afraid

that I am unable to accept the same.

20. Having regard to the conduct of the petitioners, and the

peculiar facts of this case, considering the human problem

involved, it is only reasonable to conclude that the approach that

was adopted by the parties, was to consciously overcome the delay

in finalisation of the minimum wage structure. No doubt that when

a statutory authority is required to do a particular act in a certain

way, the statutory authority cannot deviate therefrom. The present

case, however, appears to be somewhat different. Here the

petitioners have consciously allowed the Government to decide on

the matter taking note of the peculiar circumstances, and the

Government having done so, in my view, the petitioners cannot be

permitted to question the action taken by the State. The petitioners

cannot be permitted to blow hot and cold at the same time.

Admittedly, the petitioners having accepted and implemented the

previous decisions as regards enhancements as noted above,

cannot question the authority of the Government to issue the

aforesaid Advisory. The aforesaid fact was not before the Co-

ordinate Bench of this Hon'ble Court while delivering the judgment

in the case of Terai Indian Planters' Association (supra). The

aforesaid judgement is thus, distinguishable on the facts of the

case and do not assist the petitioners.

21. Having regard to the aforesaid, I am of the view that the

petitioners cannot be permitted to question the Advisory issued by

the respondent no.2 at this stage.

22. At the same time by taking note of the long pendency of the

decision for determination of minimum wages in respect of the

workers employed in the tea plantations in the State of West

Bengal, I am of the view that the State Government should take

immediate steps for finalisation of the minimum wages and the

entire process should be completed preferably within a period of six

months from the date of communication of this order.

23. The challenge to the advisory dated 27th April, 2023 fails. The

writ application, accordingly stands disposed of. There shall be no

order as to costs.

24. Urgent photostat certified copy of this judgment, if applied for,

be given to the parties on priority basis upon completion of

requisite formalities.

(Raja Basu Chowdhury, J.)

Later :

25. Mr. Majumder, learned advocate representing the petitioners,

prays for stay of operation of the aforesaid judgment insofar as the

same concerns the rejection of the challenge to the advisory dated

27th April, 2023. The same is considered and refused.

(Raja Basu Chowdhury, J.)