JUDGMENT V.N. Khare, J.
1. This special appeal arises out of order and judgment dated January 19, 1993 passed by learned single Judge, dismissing the writ petition filed by the appellants, who are engaged in business of manufacture of Bidies. The appellants in the said writ petition challenged the validity of the notification dated June 21, 1993 issued by the State Government in exercise of power under Section 3(b) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act). By the aforesaid notification the State Government revised and fixed minimum rates of wages for the various categories of employees employed in Bidi making industry with a view to secure public convenience, maintenance of public order and maintaining employment. The learned Single Judge upheld the validity of the aforesaid notification.
Aggrieved the appellants have filed this appeal.
By agreement of the parties, the counter affidavits and rejoinder-affidavits filed in Writ Petition No. 22661 of 1991 have been read as part of record of this Special Appeal.
2. Before us Sri Sudhir Chandra, learned counsel for the appellant, assailed the judgment of learned Single Judge on number of grounds which we shall notice hereinafter. Learned counsel for the appellant submitted that the State Government has acted ultra vires in exercising the powers under Section 3(b) of the Act and view taken by the learned single Judge contrary to it is not correct. According to the learned counsel the conditions precedent for exercising powers under Section 3(b) of the Act were totally absent and inasmuch as no emergency, much less any acute emergency, existed for issuing the impugned notification. On the other hand Sri Raj Kumar Jain, learned counsel on behalf of the respondents, defended the validity of the impugned notification.
3. In State of U.P. v. Basti Sugar Mills (1960-I-LLJ-220) the Supreme Court while examining nature of power contained in under Section 3 of the Act held as thus;
"The opening words of Section 3 of the Act, indicates that the provisions thereof are to be availed of in an emergency. It is true that even a reference to an Arbitrator or a Conciliator could be made only if there is an emergency. But then an emergency may be acute. Such, an emergency may necessitate the exercise of power under Clause (b) and a mere resort to those under Clause (d) may be inadequate to meet this situation. Whether to resort to one provision or other must depend upon the subjective satisfaction of the State Government upon which the powers to act under Section 3 of the Act have been conferred by the Legislature."
This decision has been consistently followed by this Court.
4. In State of U.P. v. Prem Spinning and Weaving Co. 1993 AKJ 65, it was observed:
"In our opinion the construction placed upon Clause (b) by the Supreme Court in Basti Sugar Mills' case still holds good and the State Government can exercise the power conferred by Clause (b) only as a temporary measure and in cases of an acute emergency where mere resort to power to refer for adjudication may be inadequate to meet the situation."
In the case of Mohan Gold Water Breweries Ltd, v. State of U.P. 1978 (36) FLR 182, it was held that "the State Government can exercise powers conferred on it by Section 3(b) of the Act only as a temporary measure in case of acute emergency where mere resort to power to refer any dispute to adjudication may be inadequate to meet the situation. If these two conditions are not satisfied, any order issued under Section 3(b) of the Act would be void." In view of these decisions it can be safely held that the State Government can exercise powers under Section 3(b) of the Act only when there is an acute emergency as temporary measure, where exercise of power to refer the matter for adjudication is inadequate to meet or face the situation.
5. But then the question which arises for consideration is whether in the present case is there any acute emergency as to warrant issuance of the impugned notification under Section 3(b) of the Act. Ixjarned counsel for the appellant urged that since there is no recital in the impugned notification to the effect that the notification is being issued in view of an acute emergency, burden lies upon the State Government to furnish the materials before this Court to show that there was acute emergency which necessitated issuance of the impugned notification under Section 3(b) of the Act. On the other hand it was urged by Sri Jain that the impugned notification recites that the U.P. Bidi Mazdoor Union served notices on the State Government, indicating that if minimum rates of wages of the employees employed in the employment of Bidi making industry are not revised, they would resort to agitation. According to the learned counsel this recital shows that in fact there was an acute emergency which warranted issuance of the notification under Section 3(b) of the Act. In Swadeshi Cotton Mitts v. State Industrial Tribunal (1961-II-LLJ-419) the Supreme Court held that where the notification recites condition precedent the burden lies on the person who challenges the notification. In the impugned notification there is a recital that U.P. Bidi Mazdoor Unions operating Bidi industry served notices on the State Government indicating that if the minimum rates of wages of the employees employed in the employment of Bidi industry were not revised they would start agitation. In Scientific Instrument Co. Ltd. v. State of U.P. 1986 FLR 457 reason disclosed in the notification for exercising power under Section 3(b) of the Act was that the employees had given notice that they would resort to strike if their demands are not conceded. The said reason was construed as recital in the notification to the effect that acute emergency has arisen which necessitated issuance of notification under Section 3(b) of the Act. In view of this decision where a notification discloses that the employees have given notices for strike or agitation for fulfilment of their demands it must be held that there is a recital in the notification to the effect that there is an acute emergency which necessitated issuance of notification under Section 3(b) of the Act. We, therefore, are of view that there is recital in the impugned notification that emergency has arisen which warranted the exercise of power under Section 3(b) of the Act. In view of the facts that the impugned notification recites condition precedent for the exercise of power under Section 3(b) of the Act the burden lies upon the appellants to prove that the recital to that effect is incorrect or not in existence. The record of the writ petition discloses that excepting mere bald allegation, there is no sufficient material to prove that there was no acute emergency when the impugned notification was issued. In view of this the appellants have failed to discharge the burden to prove that the recital in the notification is incorrect and further the condition precedent for the exercise of power under Section 3(b) of the Act was absent when the State Government issued impugned notification.
6. In any event of the matter it has come in the counter-affidavit filed by Bihari Lal, Joint Secretary, Labour Department, U.P. on behalf of the State Government that employees engaged in Bidi Industry have been demanding the revision of minimum wages due to rise in prices and upward revision of wages in the other employment. It is stated therein that there has been rise of 132 index point in All India Consumer Prices Number in last 21 months when the earlier notification was issued in November, 1989 and further no dearness allowance was payable, revision of minimum wages became necessary to neutralise the erosion in real earning of Bidi employees. The counter- affidavit further pointed out that another factor which weighed in the mind of the State Government in issuing the notification was that the wages fixed in agriculture sector and other rural employment were raised up to Rs. 18/- to Rs. 20/- per day. The counter-affidavit further states that in view of threat extended by the Union that employees would resort to agitation if minimum rates of wages are not revised and further on other relevant materials the Government was of the opinion that it was necessary and expedient to revise the minimum rates of wages for Bidi workers of the State for securing public convenience, maintenance of public order and maintaining employment.
7. In Laxmi Trading Co. v. State of U.P. 1973 ALJ 486. it was held that the State Government can furnish materials on which it has come to the conclusion that a grave emergency has arisen. The facts stated in the counter-affidavit thus disclose that an acute emergency has arisen which impelled the State Government to issue notification revising minimum rates of wages for the employees engaged in manufacture of Bidi under Section 3(b) of the Act. In view of the events, we are of the view that the view taken by the learned Single Judge that a situation of grave emergency has arisen which implied the State Government to issue the impugned notification, is correct.
8. In this connection it was further urged by the learned counsel for the appellants that the State Government has been regularly issuing notifications under Section 3(b) of the Act fixing minimum wages for the employees engaged in Bidi industry since 1982 without resorting to normal mode of fixation of minimum wages either under the Minimum Wages Act or by adjudication under Industrial Disputes Act. According to the learned counsel for the appellants the acute emergency cannot be said to last for over a decade and this shows that issuance of the present notification is a colourable exercise of power. We have already noticed above that Section 3 of the Act empowers the State Government to issue general or special orders, making provisions for matter specified in clauses (a) to (g) of Section 3 of the Act. This power is exercisable if in the opinion of the State Government it is necessary to do so for purposes of securing the public safety or convenience or the maintenance of public order or supplies and service essential to the life of the community or for maintaining employment for limited period of time. It is true that the power of the State Government to issue orders making provisions for the matters specified in Clauses (a) to (g) of Section 3 of the Act is not a substitute of power conferred either under the Minimum Wages Act or referring the matter for adjudication for fixation of wages by the Tribunal because the power exercisable under Section 3 of the Act is by way of temporary measure and in cases of an acute emergency where resort to reference for adjudication is inadequate to meet the situation. An acute emergency cannot be said to continue for more than ten years. In between time the State Government must take steps either under the Minimum Wages Act or by referring the matter for adjudication by the Tribunal for fixing wages, under the Industrial Disputes Act if any provision for unlimited period of time has to be provided, for otherwise exercise of power would be ultra vires. But the situation may be different where fixation of wages or minimum wages. through adjudication by Tribunal under the Minimum Wages Act is unable to keep pace with galloping rise of prices. As we know fixation of wages or minimum wages through adjudication takes lot of time and by the time wages are fixed there is further rise in prices. In the present case excepting vague allegations there is no material on record to support that the State Government has been issuing notifications under Section 3(b) of the Act on the ground that the acute emergency continued to exist. On the other hand in written note submitted by Shri R.K. Jain, learned counsel for the respondents, it was submitted that the notification issued under Section 3(b) of the Act for workers employed in Bidi making industry on May 21, 1988 was by agreement of the parties. The notification dated July 21, 1984 was issued under Section 4 of the Minimum Wages Act. The notification dated August 11, 1987 and November 21, 1989 were issued under Section 3(b) of the Act by agreement of the parties. In view of this we do not find merit in the submission of learned counsel for the appellants. We accordingly hold that present notification has not been issued by way of colourable exercise of power.
9. It was then urged that the State Government while fixing minimum rates of wages for the employees engaged in Bidi making industry has not taken into consideration well known principle known as Industry-cum-Region basis and therefore, the impugned notification is illegal and liable to be struck down by this Court. It is submitted in this connection that in 1983 Tripartite Committee was formed by the State Government and decision was taken that as far as Bidi Industry was concerned State of U.P., Madhya Pradesh, and Bihar formed one zone and wages in this zone should be the same or nearly the same. It is alleged that the employees engaged in Bidi making industry in the State of Madhya Pradesh are being given less wages than what has been fixed by the impugned notification. According to the learned counsel for the appellants if uniformity in respect of wages in the region is not maintained the result would be migration of Bidi industry from the State of U.P. to State of M.P, and Bihar. No doubt the principle which has come to be known as Industrycum Region basis has been applied in fixing wages in the industrial establishment as the criteria should be a capacity of the particular industry and as far as possible same wages should be prescribed for a unit of that industry in that region. But the question which arises for consideration is whether the principle known as Industry-cum-Region basis can be applied while fixing minimum rates of wages for the employees working in the Bidi industry. Wages may be different kind. It may be living wages, fair wage and minimum wages. The minimum wage is that wage which an employer is required to pay its employee if he wants to run the industry. In other words, minimum wage is the lowest wage in the scale below without which the efficiency of the worker is likely to be impaired. The fixation of minimum wage is not depended upon the potentiality or capacity of the employer to pay the wages to its employees but it is bare minimum wage which is other than a fair wage.
10. In C.B. Boarding and Lodging v. State of Mysore (1970-II-LLJ-403 at 411) the Supreme Court held as thus:
"The fixation of minimum wages depends on the prevailing economic conditions, the cost of living in a place, the nature of the work to be performed and the conditions in which the work is performed. The contention that it was impermissible for the Government to divide the State into several zones is opposed to Section 3(3) as well as to the Scheme of the Act,"
Thus, while fixing the minimum wages for the employees it is not necessary that the criteria of Industry-cum-Region basis is adhered to as the minimum wages depend on the prevailing economic conditions, the cost of living in a place, and other factors. We are, therefore, of opinion that the impugned notification cannot be said to suffer from infirmity on the ground that the principle Industry-cum-Region basis has not been applied while fixing minimum wages for the employees engaged in Bidi making industry. We accordingly reject the argument of the learned counsel for the appellants.
11. In this connection in addition to what has been stated earlier, it is relevant to refer the allegations in the counter-affidavit filed by the respondents to the effect that in the State of Madhya Pradesh Bidi workers are given dearness allowance which was not provided to the workers engaged in Bidi making industry in the State of U.P. Thus, according to the counter-affidavit the employees working in Bidi making industry in the Slate of Madhya Pradesh were getting more than the employees working in Bidi making industry in the State of U.P. In view of this allegation it cannot be said that by the impugned notification the minimum rates of wages fixed for the workers engaged in Bidi making industry in the State of U.P. have been given higher wage than what is being given to the employees in the corresponding industry in the State of Madhya Pradesh. On this count also it cannot be said that the impugned notification suffers from infirmity as pointed out by learned counsel for appellants.
12. Further, the facts narrated hereinafter would further show that the rates of minimum wage fixed by the State Government by the impugned notification for the employees engaged in Bidi industry in the State of U.P. is based on sound principle recognised by law. In this connection, it is necessary to refer certain allegations contained in counter-affidavit filed on behalf of the State Government. In the said counter-affidavit it is alleged that there has been a rise of 132 Index Point in All India Consumer Prices Index Number in last 21 months, when the earlier notification was issued on November 21, 1989 and since no dearness allowance was paid, revision of minimum wage became necessary to neutralise erosion in the real earning of Bidi employees. Thus, according to the counter-affidavit the minimum wage has been fixed for neutralising the price rise of the commodities. The principle fixing minimum wage in the light of cost of living at a particular point of time and neutralising the rising prices of essential commodities is, according to us a reasonable and fair principle. The minimum wage can be linked with the cost of living index and it cannot be said that this principle is alien to the concept of fixing minimum wage. If the prices are rising the rates of minimum wage has to be linked with cost of living index. We accordingly hold that the principle adhered to in fixing minimum wage for the workers employed in Bidi Industry does not suffer from any infirmity.
13. In Ministry of Labour and Rehabilitation and Anr. v. Tiffin's Barytes Asbestos and Paints Ltd. and another (1985-II-LLJ-412) it was held that (at p 415)" where minimum wages are already minimum it should not be interfered with under Article 226 of the Constitution except on the most substantial grounds. The legislation is a social welfare legislation undertaken to further the Directive Principles of State Policy and action taken pursuant to it cannot be struck down on mere technicalities." In view of this decision the minimum rates of wages fixed for the workers engaged in Bidi making industry in the State of U.P. by the impugned notification does not call for interference under Article 226 of the Constitution. We accordingly reject the argument of the learned counsel for appellants.
14. Learned counsel for the appellants then urged that during pendency of the writ petition an Union of Bidi workers entered into a settlement (vide Annexure-3 to the Stay application) with the employer M/s. Rafiq and Sons, there-; fore, the impugned notification is rendered redundant and cannot be enforced against the appellants. This agreement is between the Union of Workers and M/s. Rafiq and Sons. In Writ Petition No. 22661 of 1991 Rafiq and Sons v. State of U.P. and Ors., the petitioner gave an undertaking that they will pay back the entire amount due under the impugned notification, if the writ petition fails. In view of this it cannot be said that the impugned notification cannot be enforced against the appellants. Moreover several thousands employees are engaged in Bidi making industry but they are not party in the aforesaid settlement and in this view also it is not open to the appellants to contend that the impugned notification cannot be enforced against them. The employees of the appellants were deprived of increased rates of minimum wages due to pendency of the writ petition and interim orders passed therein. The appellants are under legal obligation to pay the entire dues to the employees due under the impugned notification forthwith.
15. It was lastly urged by the learned counsel for the appellants that the impugned notification was issued by a Caretaker Government in order to gain support in the general election from the workers of Bidi making industry. This allegation made in the writ petition is wholly vague. Moreover this allegation has been denied in the counter affidavit and it is stated therein that the impugned notification was issued in order to meet the emergent situation. In view of this the submission of the learned counsel for the appellants deserves to be rejected.
16. No other point was pressed in support of Special appeal.
In view of what have been stated above, we find no merit in this Special Appeal. It is dismissed with costs.