GOMANTAK MAZDOOR SANGH versus STATE OF GOA & ANR. on 10 May 2022

[2022] 3 S.C.R. 161

GOMANTAK MAZDOOR SANGH

v.

STATE OF GOA & ANR.

(Civil Appeal No.2982 of 2022)

MAY 10, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Minimum Wages Act, 1948 – ss.4, 5 and 10 – Determination /revision of minimum wages – Errata Notification dated 14.07.2016issued by the State of Goa in purported exercise of s.10 of the 1948Act modifying /correcting its earlier notification dated 23/24.05.2016– Validity of – Held: Notification dated 23/24.05.2016 was issuedin consultation with the Minimum Wage Advisory Board andthereafter the minimum wages were revised under clause (i) of sub-section (1) of s.4 of the 1948 Act after following due procedure asrequired u/s.5 – A conscious decision was thus taken by the StateGovernment after consultation with the Minimum Wage AdvisoryBoard – Therefore, it cannot be said that there was any arithmeticaland/or clerical mistake, which could have been corrected in exerciseof powers u/s.10 of the 1948 Act – Even assuming that the Statewas having the power to amend, vary or rescind the notification inexercise of powers u/s.21 of the General Clauses Act, in that casealso, when the earlier notification dated 23/24.05.2016 was issuedafter following the due procedure as required u/ss.4 and 5 of the1948 Act, the same procedure ought to have been followed evenwhile varying and/or modifying the notification – Hence, notificationdated 23/24.05.2016 could not have been modified by an ErrataNotification issued in purported exercise of s.10 – ErrataNotification dated 14.07.2016 was wholly without jurisdiction andcontrary to provisions of the 1948 Act, and is thus quashed – Earliernotification dated 23/24.05.2016, accordingly, restored – GeneralClauses Act, 1897 – s.21.

Minimum Wages Act, 1948 – s.10 – Fixation / revision ofminimum rate of wages – Notification issued by State Government –Correction of errors in the notification – Scope – Held: As per s.10,only the clerical or arithmetical mistakes in any order fixing orrevising minimum rates of wages can be corrected.

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Words and Phrases – Expressions “arithmetical error” and“clerical error” – Meaning of – Held: An arithmetical mistake is amistake of calculation while a clerical mistake is a mistake in writingor typing.

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Allowing the appeal, the CourtB

HELD:1. Vide Notification dated 23/24.05.2016, the StateGovernment determined the minimum wages, which included thebasic rates of wages and the special allowance. The notificationspecifically stated that the said notification has been issued inexercise of powers conferred by clause (b) of sub-section (1) ofCsection 3 read with clause (i) of sub-section (1) of Section 4 andsub-section (2) of Section 5 of the Minimum Wages Act, 1948. Ascan be seen from the contents of the said notification, the saidnotification was issued in consultation with the Minimum WageAdvisory Board and thereafter the minimum wages were revised.Thus, the minimum wages were revised under clause (i) of sub-Dsection (1) of Section 4 after following the due procedure asrequired under Section 5. [Para 6][168-C-E]

2. Once the minimum wages were revised and determined,which included the basic rates of wages and the special allowanceas per Section 4(1)(i) of the Act, 1948, thereafter it cannot beEsaid that there was any clerical and/or arithmetical mistake inmentioning clause (i). The minimum wages were revised anddetermined even after consultation with the Minimum WageAdvisory Board as required under Section 5 of the Act, 1948.Therefore, once there was no mistake, the same could not haveFbeen corrected in exercise of powers under Section 10 of theAct, 1948. [Para 7][170-B-C]

3. Even as per Section 10, only the clerical or arithmeticalmistakes in any order fixing or revising minimum rates of wagescan be corrected. An arithmetical mistake is a mistake ofGcalculation; a clerical mistake is a mistake in writing or typing.An error arising out of or occurring from an accidental slip oromission is an error due to a careless or inadvertent mistake oromission unintentionally made. [Paras 7.1 and 7.2][170-C-D, F]

Master Construction Co. (P) Ltd. vs. State of Orissaand Anr., [1966] 3 SCR 99 – relied on.

4. In the present case, a conscious decision was taken bythe State Government after consultation with the Minimum WageAdvisory Board and thereafter the minimum wages were revisedand determined in exercise of power under Section 4(1)(i).Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exerciseof powers under Section 10 of the Act, 1948. [Para 7.3][170-G-H]

5. Even by applying Section 21 of the General Clauses Actand assuming that the State was having power to amend, vary orrescind the notification, in that case also such power can beexercised in a like manner, namely after following the procedure,which was followed while issuing the original notification.Therefore, in the present case, assuming that the State was havingthe power to amend, vary or rescind the notification in exerciseof powers under Section 21 of the General Clauses Act, in thatcase also, when the earlier notification dated 23/24.05.2016 wasissued after following the due procedure as required underSections 4 and 5 of the Act, 1948, the same procedure ought tohave been followed even while varying and/or modifying thenotification. Hence, the notification dated 23/24.05.2016 couldnot have been modified by such an Errata Notification which wasissued in purported exercise of Section 10 of the Act, 1948.[Para 9][172-E-G]

6. The Errata Notification dated 14.07.2016 was whollywithout jurisdiction and contrary to the relevant provisions ofthe Minimum Wages Act, 1948. The Errata Notification dated14.07.2016 is hereby quashed and set aside and the earliernotification dated 23/24.05.2016 revising and determining theminimum wages, which included the basic rates of wages plusspecial allowance is hereby restored. [Paras 10, 11][172-G;173-B-C]

Case Law Referencerelied on

[1966] 3 SCR 99

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No.2982of 2022.

From the Judgment and Order dated 01.08.2016 of the High Courtof Bombay at Goa in Writ Petition No.710 of 2016.

Mayank Pandey, Shivraj Gaonkar, Advs. for the Appellant.B

Abhay Anil Anturkar, Ms. Bhavya Pande, Dhruv Tank, Dr. R. R.Deshpande, M/s Dr. R. R. Deshpande And Associates, Advs. for theRespondents.

The Judgment of the Court was delivered by CM. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 01.08.2016 passed by the High Court of Judicature ofBombay at Goa in Writ Petition No. 710 of 2016 by which the HighCourt has dismissed the writ petition preferred by the appellant herein inDwhich the appellant herein challenged the validity of the ErrataNotification dated 14.07.2016 issued by the State of Goa modifying/correcting its earlier notification dated 23/24.05.2016 by which the Stateof Goa fixed the rates of minimum wages in various sectors, the appellanthas preferred the present appeal. `

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2. The State of Goa issued a notification dated 23/24.05.2016 inexercise of the powers conferred by clause (b) of sub-section (1) ofsection 3 read with clause (i) of sub-section (1) of Section 4 and sub-section (2) of Section 5 of the Minimum Wages Act, 1948 (hereinafterreferred to as the “Act, 1948”) determining the minimum rates of wagesFpayable to the various categories of the employees employed in varioustrades in the Scheduled Employment, which included the basic rates ofwages plus special allowance. The revised minimum rates of wages asper the said notification is as under:-

“a) Basic rates of wages as set out in Columns (3) of the Schedule,Gannexed to this notification and payable to the categories ofemployees mentioned against them in Column (2) thereof; and

b) Government also hereby introduce payment of special allowance(hereinafter referred to as variable dearness allowance) in additionto the revised minimum rates of wages as notified above at the H

GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.[M. R. SHAH, J.]

rate of Rs. 0.95 paise for every point rise or fall beyond 269 pointsof All India Consumer Price Index for Industrial Workers baseyear 2001=100. Commissioner, Labour and Employment, Panajishall calculate, adjust and notify such special allowance first timeon and from 01-10-2016 based on the average All India ConsumerPrice Index for Industrial workers (2001=100) for the period 1stJanuary to 30th June, 2016. Thereafter, Commissioner, Labourand Employment, Panaji shall periodically adjust and notify therate of special allowance once in every six months on 1st Apriland 1st October every year based on the average of All IndiaConsumer Price Index (2001=100) for the period from July toDecember and January to June of the preceding periodrespectively.”

2.1 That thereafter the State Government issued the impugnedErrata Notification dated 14.07.2016 under which it corrected the earliernotification dated 23/24.05.2016. The word clause (i) was substituted asclause (iii). The relevant part of the said Notification reads as under:- “PUBLISHED IN OFFICIAL GAZETTE- GOVERNMENT OFGOA, (EXTRAORDINARY N0.3) SERIES I No. 15

DATED 14[TH ]JULY 2016

Department of Labour

Errata

24/21/2009-LAB-ll/472

In the Notifications from the Labour Department published in theOfficial Gazette, Series I No. 7 (Extraordinary No. 3) dated 24-5-2016 regarding revision of minimum rates of wages, the followingmay be corrected:-

(1) At page 311, the word “clause (i)” may be read as “clause(iii)”.

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At this stage, it is required to be noted that the Act, 1948 allowsthe State Government under Section 4(1) to fix the rates of minimumwages in three different ways as under:- ABC

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A“(i) a basic rate of wages and a special allowance at a rate tobe adjusted, at such intervals and in such manner as theappropriate Government may direct, to accord as nearly aspracticable with the variation in the cost of living index numberapplicable to such workers; or B(ii) a basic rate of wages with or without the cost of livingallowance, and the cash value of the concessions in respect ofsupplies of essential commodities at concession rates, where soauthorised; or

(iii) an all-inclusive rate allowing for the basic rate, the cost ofCliving allowance and the cash value of the concessions, if any.”

2.2 The State Government while issuing the notification dated 23/24.05.2016 chose the first option and fixed the minimum rates of wagesplus special allowance. Now, as per the Errata notification dated14.07.2016, the State Government fixed the minimum rates of wages asDper Section 4(1)(iii) namely an all-inclusive rate, the result and effectwould be that instead of the basic rate of wages plus special allowance,as per the Errata Notificationdated 14.07.2016, there shall be no minimumwages plus special allowance, but as per the Errata Notification, theminimum wages would be the basic rate of tax – an all-inclusive rateEexcluding the special allowance.

2.3 Feeling aggrieved and dissatisfied with the Errata notificationdated 14.07.2016, the appellant herein preferred the writ petition beforethe High Court. It was the case on behalf of the State before the HighCourt that there was a mistake while issuing the notification dated 23/F24.05.2016 and instead of clause (iii) clause (i) was mentioned andtherefore, by the subsequent Errata Notification, the same has beencorrected. The High Court accepted the same and by the impugnedjudgment and order, the High Court has dismissed the said writ petition.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentGand order passed by the High Court dismissing the writ petition, theoriginal writ petitioner has preferred the present appeal.

3. Shri Mayank Pandey, learned counsel appearing on behalf ofthe appellant has vehemently submitted that the High Court has committeda grave error in holding that there was a mistake while issuing the firstH

notification dated 23/24.05.2016 in which by mistake instead of clause(iii), clause (i) was mentioned.

3.1 It is submitted that as such the notification dated 23/24.05.2016was issued after following due procedure as required under Section 4read with Section 5 of the Act, 1948. It is submitted that as such therewas a conscious decision,as after the draft notification waspublished,objections were invited and considered and thereafter thenotification was issued determining the minimum rates of wages, whichincluded the basic rates of wages plus special allowance. In support ofabove, learned counsel appearing on behalf of the appellant has heavilyrelied upon paras 8 and 9 of the counter filed before this Court. It issubmitted that in that view of the matter and as there was no mistakeeither clerical and/or arithmetical, even in exercise of power under Section10 of the Act, 1948, the same could not have been corrected unless afresh procedure as required under Section 4/5 has been followed. Relianceis placed on Section 21 of the General Clauses Act.

3.2 It is submitted that accordingto the respondent State, therewas a clerical error, which has been corrected vide Errata Notificationdated 14.07.2016. It is submitted that if the original notification dated 23/24.05.2016 is considered, it can be seen that a conscious decision wastaken while determining the minimum wages and the minimum wageswere fixed as per Section 4(1)(i). It is contended that therefore, once aconscious decision was taken, it cannot be said that there was any clericalmistake, which could have been corrected in exercise of the powersunder Section 10 of the Act, 1948.

3.3 Learned counsel appearing on behalf of the appellant hasheavily relied upon the decision of this Court in the case of MasterConstruction Co. (P) Ltd. Vs. State of Orissa and Anr., (1966) 3SCR 99 on what can be said to be an arithmetical and/or clerical error.

Making the above submissions, it is prayed to allow the presentappeal.

4. Shri Abhay Anil Anturkar, learned counsel appearing on behalfof the respondent State has tried to support the impugned judgment andorder passed by the High Court as well as the Errata Notification dated14.07.2016.

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A4.1 It is submitted that as such when the draft notification wasissued, clause (iii) of Section 4(1) was under consideration. However,by mistake, thereafter when the notification was issued clause (i) ofSection 4(1) was mentioned and therefore, the same was corrected inexercise of the powers under Section 10 of the Act, 1948. It is urgedthat Section 10 of the Act, 1948 permits the correction of a clerical orBarithmetical mistake in any order fixing or revising the minimum rates ofwages. It is submitted that therefore the High Court has rightly dismissedthe writ petition.

5. We have heard the learned counsel appearing for the respectiveCparties at length.

6. Vide Notification dated 23/24.05.2016, the State Governmentdetermined the minimum wages, which included the basic rates of wagesand the special allowance. The notification specifically stated that thesaid notification has been issued in exercise of powers conferred byDclause (b) of sub-section (1) of section 3 read with clause (i) of sub-section (1) of Section 4 and sub-section (2) of Section 5 of the Act,1948. As can be seen from the contents of the said notification, the saidnotification was issued in consultation with the Minimum Wage AdvisoryBoard and thereafter the minimum wages were revised. Thus, theminimum wages were revised under clause (i) of sub-section (1) ofESection 4 after following the due procedure as required under Section 5.Sections 4 and 5, which are relevant for our purpose are extractedasunder:- “4. Minimum rate of wages.—(1) Any minimum rate ofwages fixed or revised by the appropriate Government in respectFof scheduled employments under Section 3 may consist of—

(i) a basic rate of wages and a special allowance at a rate tobe adjusted, at such intervals and in such manner as theappropriate Government may direct, to accord as nearly aspracticable with the variation in the cost of living indexGnumber applicable to such workers (hereinafter referred toas the “cost of living allowance”); or

(ii) a basic rate of wages with or without the cost of livingallowance, and the cash value of the concessions in respect H

GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.[M. R. SHAH, J.]

of supplies of essential commodities at concession rates,where so authorised; or

(iii) an all-inclusive rate allowing for the basic rate, the cost ofliving allowance and the cash value of the concessions, ifany.

(2) The cost of living allowance and the cash value of theconcessions in respect of supplies of essential commodities atconcession rates shall be computed by the competent authority atsuch intervals and in accordance with such directions as may bespecified or given by the appropriate Government.

5. Procedure for fixing and revising minimumwages.—(1) In fixing minimum rates of wages in respect of anyscheduled employment for the first time under this Act or in revisingminimum rates of wages so fixed, the appropriate Governmentshall either—

(a) appoint as many committees and sub-committees as itconsiders necessary to hold enquiries and advise it in respectof such fixation or revision, as the case may be, or (b)by notification in the Official Gazette, publish its proposalsfor the information of persons likely to be affected therebyand specify a date, not less than two months from the dateof the notification, on which the proposals will be taken intoconsideration.

(2) After considering the advice of the committee orcommittees appointed under clause (a) of sub-section (1) or, asthe case may be, all representations received by it before the datespecified in the notification under clause (b) of that sub-section,the appropriate Government shall, by notification in the OfficialGazette, fix, or, as the case may be, revise the minimum rates ofwages in respect of each scheduled employment, and unless suchnotification otherwise provides, it shall come into force on theexpiry of three months from the date of its issue:

Provided that where the appropriate Government proposesto revise the minimum rates of wages by the mode specified in A

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Aclause (b) of sub-section (1), the appropriate Government shallconsult the Advisory Board also.”

7. Therefore, once the minimum wages were revised anddetermined, which included the basic rates of wages and the specialallowance as per Section 4(1)(i) of the Act, 1948, thereafter it cannot beBsaid that there was any clerical and/or arithmetical mistake in mentioningclause (i). The minimum wages were revised and determined even afterconsultation with the Minimum Wage Advisory Board as required underSection 5 of the Act, 1948. Therefore, once there was no mistake, thesame could not have been corrected in exercise of powers under Section10 of the Act, 1948.C

7.1 Even as per Section 10, only the clerical or arithmetical mistakesin any order fixing or revising minimum rates of wages can be corrected.Section 10 of the Act, 1948 reads as under:- “10. Correction of errors.—(1) The appropriate GovernmentDmay, at any time, by notification in the Official Gazette, correctclerical or arithmetical mistakes in any order fixing or revisingminimum rates of wages under this Act, or errors arising thereinfrom any accidental slip or omission.

(2) Every such notification shall, as soon as may be after it isEissued, be placed before the Advisory Board for information.”

7.2 What can be said to be an arithmetical or clerical error hasbeen dealt with and considered by this Court in the case of MasterConstruction Co. (P) Ltd. (supra). It is observed and held that anFarithmetical mistake is a mistake of calculation; a clerical mistake is amistake in writing or typing. An error arising out of or occurring from anaccidental slip or omission is an error due to a careless or inadvertentmistake or omission unintentionally made.

7.3 In the present case, as observed hereinabove, a consciousGdecision was taken by the State Government after consultation with theMinimum Wage Advisory Board and thereafter the minimum wageswere revised and determined in exercise of power under Section 4(1)(i).Therefore, it cannot be said thattherewas any arithmetical and/or clericalmistake, which could have been corrected in exercise of powers underSection 10 of the Act, 1948.H

7.4 At this stage, it is required to be noted that in theErrataNotification dated 14.07.2016, as such nothing has been mentioned as tounder which provisionof law, the said notification has been issued. Onlyfrom the submission on behalf of the State beforethe High Court, theState has come out with a case that there was a clerical mistake, whichis corrected by the Errata Notification. Therefore, we presume that theErrata notification has been issued in exercise of powers under Section10 of the Act, 1948. As observed hereinabove, as such, there was noclerical mistake at all and a conscious decision was taken while issuingthe notification dated 23/24.05.2016 and therefore, the same could nothave beencorrected in exercise of powers under Section 10 of the Act,1948.

8. Even from the counter affidavit filed on behalf of the respondentbefore this Court, it is crystal clear that when the earlier notificationdated 23/24.05.2016 was issued, the same was issued after due applicationof mind and after the draft notification was issued in which the minimumwages were sought to be revised as per Section 4(1)(iii). However, afterthe objections and suggestions were invited, the LabourUnion submittedtheir representations and then a final decision was taken to revise theminimum wages as per Section 4(1)(i). In paragraphs 8,9 and 10, it isstated as under:-

“8. That, the Respondent No. 1 in exercise of the powers conferredby clause(b) of Sub-Section (1) of Section 3, read with clause (iii)of Sub-Section (1) of Section 4 and Section 5 (1) (b) of the MinimumWages Act, 1948, published a Draft Notification in the OfficialGazette, Series I, No. 9, dated 28/05/2015 in Order to considerobjections, suggestions, and representations by the RespondentNo. 1 from all the concerned stakeholders.

9. That, I state that at this stage, the representatives of the LabourUnion objected to the draft Notification by putting forth their viewsfor introduction of a special allowance in the form of ‘VariableDearness Allowance’ (VDA). That, the deliberations continuedover a long period of time thereby resulting in delay in issuing theFinal Notification for minimum wages.

10. That, I further state that taking into consideration the demandand need for introduction of special allowances in the form of AB

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AVariable Dearness. Allowance (VOA) and the delay caused inthe deliberations resulting in hike in Consumer Price Index and toavoid any further delay, the State Government had in the FinalNotification raised the minimum rates of wages proposed in DraftNotification and also provided for introduction of VOA to benotified for the first time in October 2016, and the same was to beBrevised every six months i.e. in the month of October and Aprileach year.”

8.1 Therefore, considering paragraphs 8 to 10 of the counter, evenaccording to the State, after the representation of the Labour Union,Cwhich objected to the draft notification by putting forth their views forintroduction of a special allowance in the form of ‘Variable DearnessAllowance’ and after due deliberations for a longer period of time, thefinal notification was issued determining the minimum wages with specialallowance. Therefore, subsequent case on behalf of the State that underthe notification dated 23/24.05.2016, there was a clerical mistake byDmentioning clause (i), which was corrected by issuing the subsequentErrata Notification cannot be accepted.

9. Even by applying Section 21 of the General Clauses Act andassuming that the State was having power to amend, vary or rescind thenotification, in that case also such power can be exercised in a likeEmanner, namely after following the procedure, which was followed whileissuing the original notification. Therefore, in the present case, assumingthat the State was having the power to amend, vary or rescind thenotification in exercise of powers under Section 21 of the General ClausesAct, in that case also, when the earlier notification dated 23/24.05.2016Fwas issued after following the due procedure as required under Sections4 and 5 of the Act, 1948, the same procedure ought to have been followedeven while varying and/or modifying the notification. Hence, thenotification dated 23/24.05.2016 could not have been modified by suchan Errata Notification which was issued in purported exercise of Section10 of the Act, 1948.G

10. Therefore, we are of the opinion that the Errata Notificationdated 14.07.2016 was wholly without jurisdiction and contrary to therelevant provisions of the Minimum Wages Act, 1948, which ought tohave been set aside by the High Court. The High Court has erred indismissing the writ petition challenging the Errata Notification datedH

14.07.2016 by accepting the case on behalf of the State that there wasa clerical mistake, which is subsequently corrected by the ErrataNotification.

11. In view of the above and for the reasons stated above, presentappeal succeeds. The impugned judgment and order passed by the HighCourt dismissing the writ petition is hereby quashed and set aside. Thesubsequent Errata Notification dated 14.07.2016 is hereby quashed andset aside and the earlier notification dated 23/24.05.2016 revising anddetermining the minimum wages, which included the basic rates of wagesplus special allowance is hereby restored.

Present appeal is allowed accordingly. However, in the facts andcircumstances of the case, there shall be no order as to costs.

Bibhuti Bhushan Bose

Appeal allowed.

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