P L D 1967 Dacca 229 (PLP)

SALAHUDDIN AHMED, J.‑All these thirteen petitions are under Article 98 of the Constitution. Since they are based on the same facts and raise the same questions of law, they have been heard together and are now being disposed of under this one judgment. The petitioners are proprietors of different Cotton Textile Mills situated in East Pakistan and the respondents are the Government of East Pakistan represented through its Secretary, Department of Labour, Labour Welfare Section Chairman and Members of Minimum Wages Board, East Pakistan, Pakistan Cotton Mills Workers' Federation and various Unions representing the Workers of different Cotton Textile Mills. The petitioners have challenged the validity of certain Notifications issued by the Government of East Pakistan under the Minimum Wages Ordinance, 1961 (hereinafter called the Ordinance) and have in particular challenged that portion of the impugned Notification which has sought to give retrospective effect to the declaration fixing the minimum rates of wages for the workers of the Cotton Textile Mills. The relevant facts upon which the petitions are based may be briefly stated as follows: The Last Pakistan Minimum Wages Board established under the Minimum Wages Ordinance, 1961 acting under section 7 of the Ordinance reviewed its previous recommendations, and after consultation with the Representatives of the Employers and Employees of the Cotton Textile Industry and after considering the objection and suggestions received in response to the Board's Notification dated the 22nd March 1963, made certain recommendations to the Government of East Pakistan in regard to the minimum rates of wages and other conditions of employment for workers of the said Industry. These recommendations of the Board, were not acceptable to the workers employed in the Cotton Textile Industry in East Pakistan and they went on strike against the recommendations on the ground that they were not equitable to the workers. An agreement, however, was arrived at in a tripartite meeting held on the 20th June 1963 and presided over by the Secretary of the Labour Department, Government of East Pakistan wherein inter alia it was decided that the workers should withdraw the strike and the Government should consider referring back to the Board for its reconsideration the aforesaid recommendations given under section 7 of the Ordinance. It may be mentioned that on the basis of the aforesaid recommendations of toe Board, the Provincial Government neither issued any Notification in the official Gazette nor referred back the recommendations to the Board for reconsideration as prescribed under section 6 of the Ordinance. The result was that the Government was faced with a difficult question as to how the aforesaid recommendations should be legally referred back to the Board for reconsideration. The Government solved the problem by bringing in aid sub section (5) of section 6 of the Ordinance and published the aforesaid recommendations in the Dacca Gazette dated the 3rd January 1964, by their Notification dated the 2nd January 1964 and in terms of the said Notification referred back the recommendations to the East Pakistan Minimum Wages Board for reconsideration. On receipt of the recommendations of the Board in Compliance with such reference back for reconsideration (hereinafter called the revised recommendations), the Governor of East Pakistan in Exercise of the powers conferred by subsection (3) of section 6 of the Ordinance by the impugned notification dated the 5th October 1964, declared the minimum rates of wages for the workers employed in the Cotton Textile Industry subject to certain modifications. The Notification proposed to give effect to the said revised recommendations of the Board on and from the 15th April 1963. It may be noted that the revised recommendations required the employers of the Cotton Industry to pay to the workers minimum wages which were higher by Rs. 8 than the minimum rates of wages mentioned in the earlier recommendations. The petitioners have, therefore, challenged the validity of both the notifications, namely, Notification dated the 2nd January 1964, whereby the recommendations made by the Board acting under section 7 of the Ordinance were published and the impugned Notifications dated the 5th October 1964, giving effect to the revised recommendations by declaring the minimum rates of wages in terms of these recom mendations. Mention must be made of the fact that the petitioners have already given effect to the terms of the revised recommendations on and from the date of their publication in the official Gazette, namely, the 5th October 1964. They have as stated earlier, mainly challenged the authority of the Government to give retrospective effect to those recommendations. On behalf of the respondents affidavits in opposition have been filed affirming the legality of both the Notifications as well as the power of the Government to give retrospective effect to the revised recommendations. The facts are more or less undisputed and ire have been addressed by both sides on points of law only. Mr. A. K. Brohi, learned Advocate appearing on behalf of the petitioners has strenuously contended that the reference back of the earlier recommendations to the Minimum Wages Board suffered from lack, of legal basis inasmuch as the Provincial Government had neither acted under section 6 (1) (a) of the Ordinance and made the necessary declaration nor had referred them back to the Board for reconsideration within thirty days of the receipt of the recommendations as contemplated by section 6 (1) (b) of the Ordinance. He has, therefore, contended that the Impugned Notification suffered from illegality. It is necessary at this stage to quote certain relevant provisions of the Minimum Wages Ordinance (XXXIX of 1961). They are as follows: "

4. Recommendation of minimum rates of wages for unskilled and Juvenile Workers.‑(1) A Board .shall, upon a reference made to it by the Provincial Government, recommend to such Government after such enquiry as the Board, thinks fit, the minimum rates of wages for adult unskilled workers and juvenile workers employed in industrial undertakings in the Province. (2) In its recommendations under subsection (1), the Board shall indicate, whether the minimum rates of wages should be adopted uniformly throughout the Province or with such local variations for such localities as are specified therein.

5. Recommendation of minimum rates of wages for workers with respect to particular industries.‑(1) Where in respect of any particular industry in the Province for which no adequate machinery exists for effective regulation of wages, the Provincial Government is of the opinion that having, regard to the wages of the workers employed in the undertakings engaged in such industry, it is expedients to fix the minimum rates of wages of such workers, it may direct the Board to recommend, after such enquiry as the Board thinks fit, the minimum rates of wages either for all such workers or for such of them as are specified in the direction: Provided that, except with the previous, approval in writing of the Central Government, no such direction shall be given with respect to persons employed in any undertaking under the management of control of the Central Government, including those employed by a Port Authority. (2) In pursuance of a direction under subsection (1), the Board may recommend minimum rates of wages for all classes of workers in any grade and, in such recommendation, may specify‑ (a) the minimum rates of wages for‑ (i) time work; (ii) piece work; (iii) overtime work; and (iv) work on the weekly day of rest and for paid holidays and (b) the minimum time rates for workers employed on piece work so as to guarantee minimum wages on a time basis for such workers. (3) The time rates recommended by the Board may be on hourly, daily, weekly or monthly basis. (4) The rates recommended under this section for overtime work and work on paid holidays shall not be less than the minimum rates fixed for such work under any other law for the time being in force.

6. Power to declare minimum rates of wages.‑(1) Upon receipt of a recommendation of the Board under section 4 or section 5, the Provincial Government may,‑ (a) by notification in the official Gazette; declare that the minimum rates of wages recommended by the Board for the various workers shall, subject to such exceptions as may be specified in the notification, be the minimum rates of wages for such workers; or (b) if it considers that the recommendation is not, in any respect, equitable to the employers or the workers, within thirty days of such receipt, refer it back to the Board for reconsidera tion with such comments thereon and giving such information relating thereto as the Provincial Government may think fit to make or give. (2) where a recommendation is referred back to the Board under clause (b) of subsection (1), the Board shall reconsider it after taking into account the comments made and infor mation given by the Provincial Government and if necessary, shall hold further enquiry and submit to such Government‑ (a) a revised recommendation, or (b) if it considers that no revision or change in the recommendation is called for, make report to that effect stating reasons therefore. (3) Upon receipt of the recommendation of the Board under subsection (2), the Provincial Government may, by notification in the official Gazette, declare that the minimum rates of wages recommended under that subsection by the Board for various workers shall, subject to such modification and exceptions as may be specified in the notification, be the minimum rates of wages for such workers. (4) Unless any date is specified for the purpose in the notification under subsection (1) or subsection (3), the declaration thereunder shall take effect on the date of publication of such notification. (5) Where after publication of a notification under sub section (1) or subsection (3) or after the minimum rates of wages declared thereunder have taken effect, it comes to the notice of the Provincial Government that there is a mistake in the minimum rates of wages so declared, or that any such rate is inequitable to the employers or the workers, it may refer the matter to the Board and any such reference shall be deemed to be a reference under subsection (2). (6) The minimum rates of wages shall not, except with the previous approval in writing of the Central Government, be declared under subsection (1) or subsection (3) in respect of persons employed in any undertaking under the management or control of the Central Government, including those employed by any Port Authority. (7) The minimum rates of wages declared under this section shall be final and shall not in any manner be questioned by any person in any Court or before any authority.

7. Periodical review of minimum rates of wages.‑(1) The Board shall review its recommendations if any change in the economic conditions and cost of living and other relevant factors so demand, and recommend to the Provincial Government any amendment, modification or revision of the minimum rates of wages declared under section 6 Provided that no recommendation shall be reviewed earlier than one year from the date on which it was made, unless the special circumstances of a case so required, and later than three years from such date. (2) Review and recommendation under this section, shall be deemed to be an enquiry and recommendation under section 4 or, as the case may be, under section 5, and, so far as may be, the provisions of this Ordinance shall, to such review and recommendation, apply accordingly. 8. . . . . . . . . . . . . . . . . . . . . . .

9. Prohibition to pay wages at a rate below the minimum rate of wages.‑(1) Subject only to such deductions as may be authorized under this Ordinance, or under any other law for the time being in force, no employer shall pay any worker wages at a rate lower than the rate declared under this Ordinance to be the minimum ate of wages for such worker. (2) Nothing in subsection (1) shall be deemed‑ (a) to require or authorize an employer to reduce the rate of wages of any worker; or (b) to affect, in any way, the right of a worker to continue to receive wages at a rate higher than the minimum rate declared under this Ordinance if, under any agreement, contract or award, or as a customary differential, or otherwise, he is entitled to receive wages at such higher rate, or to continue to enjoy such amenities and other advantages as are customary for such worker to enjoy; or (c) to affect the provisions of the Payment of Wages Act 1936 (IV of 1936): (3) Any employer who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to six months of with fine which may extend to five hundred rupees or with both, and if the Court trying such contravention by order so directs, shall also pay to the worker concerned such sum as, may be specified in the order to represent the difference between the amount actually paid to such worker and the amount which would have been paid to him had there been no, such contravention.

17. Rules relating to Boards.‑(1) Subject ‑to the provision of section 16, the Provincial Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance. , ' (2) Without prejudice to the generality of the foregoing power, such rules may provide for‑ (a) . . . . . . (b). the giving of opportunities to persons likely to be affected by the minimum rates of wages to offer documents and make suggestions;". Reading the Ordinance as a whole, particularly the provisions of the Ordinance quoted above it is patent that the Provincial Government has primarily been made responsible for fixing minimum rates of wages in certain industrial undertakings and it is the Provincial Government that takes cognizance of circumstances requiring fixation of minimum rates of wages and then sets the ball rolling by either referring the question of fixation of minimum rates of wages to the Minimum Wages Board under section 4 of the Ordinance or directing the Board under section 5 thereof .to make recommendations on the said rates of wages. It is only under section 7 of the Ordinance that the Board acts' on its own. But this action is confined to a review of its earlier recommendations by the Board in regard to the particular matter and is limited to certain time and circumstances, namely, that the Board shall not review its earlier recommendations earlier than one year from the date on which it. was made and later than three years from such date unless the special circumstances of a case so require. In all cases, however, it is for the Provincial Government to accept the recommendations of the Board with or without exceptions or modifications. We should not, however, be understood to mean that once the Provincial Government makes a reference under section 4 or directs the Board to make recommendations under section 5 of the Ordinance and the Board has submitted its recommendations to the Provincial Government, the Government is free to act in a manner other than prescribed under section 6 (1) of the Ordinance. The Government having set the ball rolling must play the game. The very fact that the Government considered it fit to refer a particular matter to the Board, or direct it to make recommendations is evidence enough of the existence of the necessity for fixation of minimum rates of wages for workers employed in certain undertakings. In our view, therefore; once the matter has been referred to the Board and the Board has submitted its recommendations to the Provincial Government the latter has no option but to act in the manner prescribed under section 6 (1), (2) and (3) of the Ordinance. In the present case although the Government received the recommendations of the Board made under section 7 of the Ordinance the former did not initially act in the manner mentioned above and that was the reason why the recommen dations of the Board made in June 1963, were never published by any Notification by the Government until the 3rd January 1964. It appears that the workers of the Textile Cotton Mills immediately they came to know of the recommendations were dissatisfied with them and went on strike against the recommen dations. On the 28th June 1963, however, as appears from the Notification dated the 2nd January 1964 (Annexure `A' to the petition) an agreement was arrived at between the parties concerned in a tripartite meeting and all the parties including the employers felt that the recommendations should be sent back by the Government to the Board for reconsideration. The Government was thus faced with a quandary inasmuch as the only course left open for the Government in the circumstances of the case was to act under section 6 (5) of the Ordinance which presupposed that the Government had first acted under section 6 (1) (a) or (b) and section 6 (3) thereof. Section 6 (5) provides that if after the publication of a notification under subsection (1) or subsection (3) of section 6 of the Ordinance or after the minimum rates of wages declared thereunder have taken effect, it comes to the notice of the Provincial Government that there is a mistake in the minimum rates of wages declared, or that any such rate is inequitable to the employers or the workers, then the Government may refer the matter to the Board and any such reference shall be deemed to be a reference under subsection (2) of section 6 of the Ordinance. The Government, therefore, published the recommendations of the Board dated June 1963 by a Notification dated the 2nd January 1964 and simultaneously referred back the recommendations for reconsideration of the Board. Though belated that was the only course left open for the Government to pursue. We do not think that any objection can be taken to this Notification except the fact that the Government merely published the recommendations of June 1963, without making the necessary declaration e as contemplated by section 6 (1) (a). This objection, however, is of a technical nature and is not of importance in the present case. This notification does furnish a valid basis for the reference back of the recommendations to the Board for reconsideration and consequently the impugned notification does not suffer from lack of legal basis. And the fact that all the parties felt that the recommendations made in June 1963 should be referred back to the Board for reconsideration clearly showed that the employees and the workers had no objection to the course adopted by, the Provincial Government. It may be mentioned at this stage that a question has arisen whether when the matter came back to the Board for recon sideration it was obligatory on the Board to comply with Rule 15 of the East Pakistan Minimum Wages Rules framed under section 17 of the Minimum Wages Ordinance, 1961. Rule 15 is as follows:‑ "(1) Where the Board proposes to recommend minimum rates of wages it shall give notice, by publishing the terms, of the proposed recommendation in the official Gazette, to persons likely to be affected thereby in order that they may have opportunity to file objections or make suggestions in writing with supporting, data, within fourteen days from the date of publication. (2) The Board may after considering any objections and suggestions made in accordance with sub‑rule (1) make such amendments of the original proposals as may seem desirable, or may uphold its original proposals and make recommendations accordingly, to the Provincial Government." . Reading the Ordinance as a whole, particularly sections 4 (1), 5 (1), 6 (2), 6 (5), 7 (2) it appears to us that rule 15 is applicable only when the matter is referred to the Board by the Provincial Government under section 4 (1) or the latter directs the Board under section 5 (1) to make recommendations or when the: Board acts under section 7 of the Ordinance. In cases falling under section 6 (2) and (5) the rule may be applicable only if the Board thinks that a further enquiry is necessary. In the; present case it is evident from the notification dated the 2nd January 1964, that the recommendations made by the Board under section 7 of the Ordinance were so made after having fully complied with the provisions of the said rule 5: The rule did not apply to the revised recommendations given' by the Board on reference to it by the Provincial Government as a result of the notification dated 2nd January 1964 because the Board did not appear to think that a further enquiry was necessary. We, therefore, do not think that it was incumbent on the Board to have complied with rule. 15 before making the; revised recommendations contained in the impugned notification. Reverting to the contention regarding the validity of the impugned Notification we do not think that it suffers from any illegality apart from the question of giving retrospective effect to the recommendations of the Board contained therein. This bring us to the main contention of Mr. Brohi which has centered round giving retrospective effect to the revised recommendations of the Board. Subsection (4) of section 6 quoted above clearly indicates that it is for the Government to specify a date from which the declaration in regard to the minimum rates of wages shall become effective. In the absence of any such specification, however, the declaration takes effect on the date of publication of the Notification under subsection (1) or subsection (3) of section

6. The question, however, is whether the Government is at liberty to fix a date which is prior to the date of the publication to the notification. Mr. Brohi has vehemently contended that the Government is not empowered under the statute to give retrospective operation to 'its declaration notified under section 6 (1) of section 6 (3) of the Ordinance and he has supported his contention by drawing our attention to a passage contained in the judgment of B. Z. Zaikaus, J. in the case of Sheikh Fazal Ahmad v. Raja Ziaullah Khan (P L D 1964 S C 494) and occurring at page 501 which reads thus:‑ "An obvious objection to this amendment is that it is alt notification by the Government in exercise of the power of subordinate legislation and such power does, not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in detail and in some cases the time or the occasion for applying a statute has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which it is necessary, for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation. In Rahmat Ullah v. Deputy Settlement Commissioner (P L D 1954 S C 494) reported in P L D 1963 S C 633 this Court held that a notification by the Government under the Displaced Persons (Compensation and Rehabilitation) Act could no have retros pective effect." This provision of law is now well settled and it is hardly necessary far us to add anything further, except to point out that section 9 of the Ordinance where under an employer who contravenes the provision of this section, that is, pays any worker wages at a rate lower than the rate declared under the Ordinance to be the minimum rates of wages for such worker shall be punishable with imprisonment for a term which may extent to six months or with fine which may extend to five hundred rupees or with both. It is, therefore, obvious that if retros pective effect is given to the revised recommendations the employer will at once become liable for contravention at a time when even the required declaration did not exist. Such an untenable situation, in our opinion is not contemplated by subsection (4) of section

6. For the reasons stated above, we hold that the impugned Notification dated the 5th October 1964, is valid in law except the portion that seeks to give retrospective operation to the declaration contained therein. We further hold that neither subsection (4) of section 6 contemplates retrospective operation of the declaration mentioned therein nor is respondent No. 1 the Provincial Government authorised to give retrospective effect to the recommendations of the Board. We, however, do not think that the revised recommendations made by the Minimum Wages Board suffer from any illegality whatsoever. We accordingly make the rules issued in each one of the 13 petitions mentioned above absolute to this extent only, namely, we declare that the portion of the impugned Notification dated The 5th October 1964, seeking to give retrospective operation to the declaration contained in the said Notification with effect from the 15th April 1963 is without lawful authority, and as such, of no legal effect. ' The result is that the said notification dated the 5th October 1964 became effective on and from the date of its publication, namely, the 5th October 1964. In view of the partial success the parties will bear their own costs. ABDUS SATTAR, J.‑I agree. K. B. A. Rule partly made absolute.