# THE PABBOJAN TEA CO. LTD., ETC v. THE DEPUTY COMMISSIONER, LAKHIMPUR, ETC

- **Citation:** [1968] 1 S.C.R. 260
- **Court:** Supreme Court of India
- **Decided:** 1967-08-18
- **Case number:** Civil Appeals Nos. 288-291 of 1966
- **Bench:** K. N. Wanchoo, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-pabbojan-tea-co-ltd-etc-v-the-deputy-commissioner-lakhimpur-etc-4117
- **Pages:** 14

## Headnote

Minimum Wages Act, 1948 (11 of 1948), s. 20-0rders of Auth<>-
Tity-Civi! Court's ;urisdiction, if barred-Lettera Challan Workers, if "ordinary umkilled labour".
A
B
By a notification under the Minimum Wages Act minimum wages
were fixed for 'ordinary unskilled labour' in certain Tea PlanC
tations in Assam. The respondent-Deputy Commissioner Issued notices to the appellants that a number of employees were not paid in accordance with the prescribed rate, and required them to pay the
outstanding wages with requisite amount of delayed compensation
to the employees in conformity with s. 20(3) of the Act. The appellants denied the liability stating that these employees were Lettera
Challan-workers who were incapable of performing a full normal
working day's work, so they were 'not ordinary unskilled labour'.
The authority did not hold any enquiry or receive any evidence
D
beyond meeting the managers of the appellants where the Government Labour Officer was present and it held that in the absence of
an order of exemption under s. 26, Lettera Challan Labour (in spite
of the amount of work performed) was to be treated as ordinary
labour. The appellants filed civil suits which the Subordinate Judge
dismissed holding that under the Minimum Wages Act the orders
of the Authority were final and su\ts were barred. The High Court
upheld the decision of the Subordinate Judge.
Held: The appeals must be allowed.
E
Determination of the question whether the jurisdiction of civil
courts is excluded or not depends on the terms of the particular
statute under construction. Exclusion of jurisdiction is n'bt to be
readily inferred but such exclusion must either be explicitly expressed or clearly implied. On an analysis of the provisions of the Act
under consideration, it jg clear that although the Act provides that
it is the duty of the authority to give proper hearing to the parties
F
allowing them to tender such evidence as they think proper before
making an order which may have far-reaching consequences and
which is final under s. 20(6) of the Act, the Act is not a complete
Code, as there no provision for appeal or revision from the direction
of the authority under s. 20(3); nor is any further scrutiny provided
by any higher authority against th" imposition of penalty. The Act
in terms does not bar the employer from instituting a suit when his
claim is that he has been called upon to pay wages and compensation
to persons who are not governed by the notification under the Act.
G
In such circumstances it is impossible to hold that the legislature
meant to exclude the jurisdiction of civil court. [265B; 266E-F; 271E;
271H-272H]
..
SecretaT1} of State v. Mask & Co. 67 I.A. 222. Wol,,erhampton
New Water Works Co. v. Hawkesford, [1859] 6 C.B. (N.SJ 336. Pvx
Granite Co Ltd. v. Ministry of Housing and Local Gol>ernment [1960]
AC. 260, Raleiah Investment Co. Ltd. v. Governar General in CounB
di, 74 I A 50, Firm and llluri Subba1111a Chetty & Sons v. The State
('ff Andhra, Pradesh [1964] 1 S.C.R 752, Kala Bhandar v. Municipal
200
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B
c
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PABBOJAN TEA CO. V. DY. COMMR., LAKHIMPUR (Mitter, J.)
261
Committee, [1965) 3 S.C.R. 499, Kamala Mills Ltd. v. State of Bombay,
[1966) 1 S.C.R. 64, K. S. Venkataraman & Co. v. State of Madras,
[1966) 2 S.C.R. 229 and Firm Radha Kishan (deceased) represented
by Hari Kishoo v. Ad~nistrator, Muntcipa! Committee, Ludhiana,
[1964) 2 S.C.R 273, referred to.
"Lettera Challan" workers do not fall within the expression
"Ordinary unskilled workers" which means such unskilled W?rkers
as work for the prescribed period of a fuU day. On the evidence
adduced it is clear that the "lettera challan" labour only works for
half the day and is unwilling to work for the prescribed period of
fu\l day. Such a case is covered by the proviso to s. 15 a.nd such
labour is not entitled to wages for a full normal workmg day.
[272F-G]

## Text

THE PABBOJAN TEA CO. LTD., ETC.
v.
THE DEPUTY COMMISSIONER, LAKHIMPUR, ETC.
August 18, 1967
[K. N. WANCHOO, C.J., AND G. K. MITTER, J.)
Minimum Wages Act, 1948 (11 of 1948), s. 20-0rders of Auth<>-
Tity-Civi! Court's ;urisdiction, if barred-Lettera Challan Workers, if "ordinary umkilled labour".
A
B
By a notification under the Minimum Wages Act minimum wages
were fixed for 'ordinary unskilled labour' in certain Tea PlanC
tations in Assam. The respondent-Deputy Commissioner Issued notices to the appellants that a number of employees were not paid in accordance with the prescribed rate, and required them to pay the
outstanding wages with requisite amount of delayed compensation
to the employees in conformity with s. 20(3) of the Act. The appellants denied the liability stating that these employees were Lettera
Challan-workers who were incapable of performing a full normal
working day's work, so they were 'not ordinary unskilled labour'.
The authority did not hold any enquiry or receive any evidence
D
beyond meeting the managers of the appellants where the Government Labour Officer was present and it held that in the absence of
an order of exemption under s. 26, Lettera Challan Labour (in spite
of the amount of work performed) was to be treated as ordinary
labour. The appellants filed civil suits which the Subordinate Judge
dismissed holding that under the Minimum Wages Act the orders
of the Authority were final and su\ts were barred. The High Court
upheld the decision of the Subordinate Judge.
Held: The appeals must be allowed.
E
Determination of the question whether the jurisdiction of civil
courts is excluded or not depends on the terms of the particular
statute under construction. Exclusion of jurisdiction is n'bt to be
readily inferred but such exclusion must either be explicitly expressed or clearly implied. On an analysis of the provisions of the Act
under consideration, it jg clear that although the Act provides that
it is the duty of the authority to give proper hearing to the parties
F
allowing them to tender such evidence as they think proper before
making an order which may have far-reaching consequences and
which is final under s. 20(6) of the Act, the Act is not a complete
Code, as there no provision for appeal or revision from the direction
of the authority under s. 20(3); nor is any further scrutiny provided
by any higher authority against th" imposition of penalty. The Act
in terms does not bar the employer from instituting a suit when his
claim is that he has been called upon to pay wages and compensation
to persons who are not governed by the notification under the Act.
G
In such circumstances it is impossible to hold that the legislature
meant to exclude the jurisdiction of civil court. [265B; 266E-F; 271E;
271H-272H]
..
SecretaT1} of State v. Mask & Co. 67 I.A. 222. Wol,,erhampton
New Water Works Co. v. Hawkesford, [1859] 6 C.B. (N.SJ 336. Pvx
Granite Co Ltd. v. Ministry of Housing and Local Gol>ernment [1960]
AC. 260, Raleiah Investment Co. Ltd. v. Governar General in CounB
di, 74 I A 50, Firm and llluri Subba1111a Chetty & Sons v. The State
('ff Andhra, Pradesh [1964] 1 S.C.R 752, Kala Bhandar v. Municipal
200
A
B
c
D
E
r
G
B
PABBOJAN TEA CO. V. DY. COMMR., LAKHIMPUR (Mitter, J.)
261
Committee, [1965) 3 S.C.R. 499, Kamala Mills Ltd. v. State of Bombay,
[1966) 1 S.C.R. 64, K. S. Venkataraman & Co. v. State of Madras,
[1966) 2 S.C.R. 229 and Firm Radha Kishan (deceased) represented
by Hari Kishoo v. Ad~nistrator, Muntcipa! Committee, Ludhiana,
[1964) 2 S.C.R 273, referred to.
"Lettera Challan" workers do not fall within the expression
"Ordinary unskilled workers" which means such unskilled W?rkers
as work for the prescribed period of a fuU day. On the evidence
adduced it is clear that the "lettera challan" labour only works for
half the day and is unwilling to work for the prescribed period of
fu\l day. Such a case is covered by the proviso to s. 15 a.nd such
labour is not entitled to wages for a full normal workmg day.
[272F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 288-291
of 1966.
'
Appeals by special leave from the judgment and order dated
December 7, 1962 of the Assam High Court in First Appeals Nos.
16-19 of 1967.
P. K. Goswami a.nd R. Gopalakri.~hnan, for the appellants
(in all the appeals).
H. R. Gokha/e, Naunit Lal and B. P. Singh, for respondent
No. 1 (in all the appeals).
The Judgment of the Court was delivered by
Mitter, J. The central question in these appeals is, whether
the civil court had jurisdiction to entertain the suits and grant the
reliefs claimed.
The facts are as follows: -By a notification dated March II,
1952 the Governor of Assam fixed the minimum wages which were
to come into force with effect from March 30, 1952, consisting of
basic wages and dearness allowance in terms of cl. (i), sub-s. (!)
of s. 4 of the Minimum Wages Act, 1948, at the rates specified
in the Schedule to the notification payable to the employees employed in tea plantations in the different districts of Assam. Under
the notifica.tion, the rates were to be exclusive of concessions
enjoyed by the workers in respect of supplies of food-stuff and
other' essential commodities and amenities which were to continue
unaffected. Further, the existing tasks and hours of work were to
continue until further orders. The Schedule shows that the notification was to apply to "ordinary unskilled labour" which was
again sub-divided into three classes, namely, (a) adult male (16
years and above): (b) adult and female (16 years and above) and
tc) working children (below 16 years and abOve 12 years). The
rates were again to be different in the different districts of Assam
which were, broadly speaking. divided into three sections. On
April 16, 1952 the Government of Assam published the Minimum
Wages Rules which fixed the number of hours in the case of an
adult for a normal working day to nine hours, subject to a maximum of 48 hours in a week. On June 2, 1953, the Deputy Commissioner of Lakhimpur served a notice on the manager of one
21l2
SUPREME COURT REPORTS
(1968] l s.c.B.
of the appellants, Borhapjan Tea estate to the effect that the minimum wages prescribed had not been paid to a number of employees in accordance with the prescribed rate. The addressee was
required to pay the outstanding amount of wages with the requisite
amout of delayed compensation to the employees in conformity
with s. 20(3) of the Minimum Wages Act and report compliance
on or before the 10th of June, 1953. The manager was further
directed to show cause why prosecution should not be sanctioned
for violation of the provision of the said Act. A list oi the employees with their names was given showing 24 men labourers,
58 women labourers and one girl labourer. Similar notices were
issued to the managers of the other tea estates. The managers submitted written replies to the authority denying liability for payment
of the amount claimed in the notice. By order dated June 2, 1954
the above mentioned authority directed the different tea estates
ta pay the difference betweer: the full minimum wages and the
amounts actually paid to the labourers: It does not appear that
the authority concerned held any inquiry or received any evidence
beyond meeting the managers of the four tea estates at the premises
of the Doom-Dooma Club where the Government Labour Officer
was also present. He however recorded an order dated June 2,
1954 to the effect that the contention of the managements of the
tea estates that the Lettera Challans who by reason of their old
age, infirmity and physical defects etc. were incapable of performing a full normal working day's work could not be accepted. According to the order, "the point for decision was, whether a Lettera
Challan worker was entitled to the same rate of wages as ordinary labour working full normal working days". From the order,
it appears that the authority concerned knew of the employment
of this kind of sub-normal workers by various tea estates but he
held that, in the absence of an order for exemption by the Government in terms of s. 26 of the Minimum Wages Act, he had to
guide himself by the notification mentioned. He held further that
under the Act and the Rules, LetteraJ Challan labour, in spite of
the amount of work (time or task rate) performed by them was to
be treated as ordinary labour entitled to wages for a full normal
day. He therefore directed that the tea estates should pay the
difference between the full minimum wages and the amount actually paid, together with compensation which he fixed at three
times the amount payable to each worker. The tea estates filed
four separate suits for a declaration that the orders of the Deputy
Commissioner, Lakhimpur dated June 2, 1954 were illegal and
void and without jurisdiction and a further declaration that the
employees mentioned (sub-normal workers) were not entitled to
full minimum wages without performing a normal day's task or
without working the prescribed number of working hours. The
Subordinate Judge framed a. number of issues including one regarding the maintainability of the suits, heard evidence and came
to the conclusion that the decision or orders of the Deputy Commissioner were all final in terms of the Minimum Wages Act and
the suits were barred "under the provisions of the Act". The
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PABBOJAN TEA CO. V, DY. COMMR., LAKHIMPUR (Mitter, J.)
2il3
learned Judges of the High Court of Assam, by a majority, upheld
the decision of the Subordinate Judge.
The evidence of the managers of the tea estates was to the
effect that in each tea garden there was a number of workers
described as Lettera Challans who were unwilling to perform the
normal tasks which were available to them as normal labourers,
that they worked for only half the day and were unwilling to work
for the full day as other labourers.
In order to determine whether a suir challenging the decision
of the authority under the Act is maintainable or not, it is necessary to take a. note of the object of the Act and its provisions in
general. The Act was clearly aimed at providing for fixing minimum rates of wages in certain employments· which were
defined as scheduled employments.
An 'employee' meant
any person who was employed for hire or reward to do any work,
skilled or unskilled, manual or clerical, in a scheduled employment
in respect of which minimum ra.tes of wages had been fixed. S. 3
empowered the aopropriate government to fix the minimum rates
of wages payable" to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Part by notification under s. 27. Under sub-s.
(2) of s. 3 Government might fix a minimum rate of wages for
time work, a minimum rate of wages for piece work, a minimum
rate of remuneration in the case of employees employed on piece
work for the purpose of securing to such employees a minimum
rate of wages on a time work basis, and a minimum rate (whether
a time rate or a piece rate) to apply in substitution for the minimum rate which would otherwise be applicable in respect of overtime work done by employees. The section also empowered the
Government to fix different minimum rates in respect of different
scheduled employments as also different classes of work in the
same scheduled employment for adults, adolescents, children and
apprentices as also for different localities. Under s. 4 the minimum
rate of wages fixed might consist of basic rate of wages and a special
allowance at a rate to be adjusted or a basic rate of wages with
or without the cost of living allowance. S.12 made it obligatory on
the employer to pay to every employee engaged in a scheduled
employment wages at a rate not less than the minimum rate of
wages ~xed by the notification. Under s.13 it was open to the
appropnate government to fix the number of hours of work which
were to constitute a normal working day in regard to any scheduled
employment. S. 15 provided as follows:
"If an employee whose minimum rate of wa.ges has been
fixc;d under this Act by the day. works on any day on
~hich he was employed fo~ a .penod less than the requisite number of hours conshtutmg a normal working day,
he shall, saye as otherwise hereinafter provided, be entitled to receive wages in respect of work done by him on
SUPREME COURT REPORTS
(1968) I S.C.R.
that day as if he had worked for a full normal working
day:
Provided, however, that he shall not be entitled to
receive wages for a full normal working day-
(i) in any case where ·his failure to work is caused
by his unwillingness to work and not by the
omission of the employer to provide him with
work, and
(ii) in such other cases and circumstances as may
be prescribed."
S. 20 with the marginal note "claims" is divided into seven subsections. Sub-s. (!) empowers the appropriate government to
appoint a person of the qualifications mentioned to be the authority to hear and decide all claims arising out of payment of less
than the minimum rates of wages. Sub-s. (2) provides for the application to the said authority for a direction under sub-s. (3) in all
cases where an employee has any claim of the nature referred to
in sub-s. (I). Such applica.tion may be made inter alia by the employee himself or any legal practitioner or any official of a registered trade union. Sub-s. (3) runs as follows: -
"When any application under sub-section (2) is entertained, the Authority shall hear the applicant and the employer, or give them an opportunity of being heard, and
after such further inquiry, if any, as it may consider
necessary, may, without prejudice to any other penalty to
which the employer may be liable under this Act, direct-
(i) in the case of a claim arising out of payment of
less than the minimum rates of wages, the payment to the employee of the amount ·by which
the minimum wages payable to him exceed the
amount actually paid,
together with the
amount of such compensation as the Authority
may think fit, not exceeding ten times the amount
of such excess;
(ii) in any other case, the payment of the amount
due to the employee, together with the payment
of such compensation as the Authority may think
fit, not exceeding ten rupees, and the Authority
may direct payment of such compensation in
cases where the excess or the amount due is paid
by the employer to the employee before the
disposal of the application."
Sub-s. (4) empowers the authority to levy a penalty not exceeding
Rs. 501- if he is satisfied that the application was either malicious
or vexatious. Sub-s. (5) prescribes for the manner of recovery of
the amount directed to be paid under the section. Under sub-s. (6)
"every direction of the Authority under this section shall be final"
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PABBOJAN TEA CO. v. DY. COMMR., LAKHIMPUR (Mitter, J.)
265
Sub-s. (7) clothes every Authority appointed under sub-s. (!) with
the powers of a civil court under the Code of Civil Procedure for
the purpose of taking evidence and of enforcing the attendance
of witnesses and compelling the production of documents etc. S.
24 contains an express provision for the bar of suits of certain
kinds. It reads :
"No Court shali entertain any suit for the recovery of
wages in so far as the sum so claimed-
(a) forms the subject of an application under section 20
which has been presented by or on behalf of the
plaintiff, or
(b) has formed the subject of a direction under that
section in favour of the plaintiff, or
(c) has been adjudged in any proceeding under that section not to be due to the plaintiff, or
(d) could have been recovered by an application under
that section".
Under s. 25 any contract or agreement by which an employee
relinquishes or reduces his right to a minimum rate of wages etc.
is to be null and void. Sub-s. (!) of s. 26 empowers the appropriate
government, subject to such conditions as it may think fit to impose,
to direct that the provisions of the Act shall not apply in relation
to the wages payable to disabled employees.
Our task is to ascertain whether the above provisions of the
Act impose a bar on the institution of suits of the nature described
in this case either expressly or impliedly. The question of maintainability of civil suits to chaltenge actions purported to have
been tak~n under certain special statutes has engaged the attention of this Court in a number of cases in recent years as also of
the Judicial Committee of the Privy Council before the establishment of this Court. Under s. 9 of the Code of Civil Procedure "the
courts have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or impliedly
barred". In Secretary of State v. Mask & Co.(') the question was,
whether the order of the Collector of Customs on an appeal under
s. 188 of the ~
Customs· Act from a decision or an order passed
by an officer of Customs as to rate of duty leviable under a tariff
excluded the jurisdiction of the civil court to entertain a challenge
on the merits of the decision of the Officer of Customs. It was
pointed out that the determination of the question depended on
the terms of the particull'.11' statute under construction and decisions on other statutory provisions· were not of material assistance
except in so far as general principles of construction were laid
down. The Board relied upon the exposition of law by Willes, J.
in Wolverhampton New Waterworks Co. v. Hawkesford(') that-
"where a liability not existing at common law is created
by a statute which at the same time gives a special and
particular remedy for enforcing it"
(1) 67 I.A. 222, 237.
---("'2)"'[1""85""9]"'6 "c"'.B'. "(N"".s'"."""> ""33~6.
266
SUPREME COURT REPORTS
(1968] 1 s.c.R.
the party must adopt the form of remedy given 'by the statute.
S. 188 of the Sea Customs Act was one of a number of sections
contained in Chapter XVII of the Act headed "Procedure relating
to offences, appeals etc." and included ss. 169 to 193. S. 182 provided for liability to confiscation or increased rates of duty in
certain cases. S. 188 laid down that any person deeming himself
aggrieved by any decision or order passed by an officer of Customs
under the Act may, within three months from the date of such
decision or order, appeal therefrom to the Chief Customs Authority, or, in such cases as the Local Government directs; to any
officer of Customs not inferior in rank to a Customs-Collector and
empowered in that behalf by name or in virtue of his office by the
Local Government. Such officer or authority may thereupon make
such further enquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against
and every order passed in appeal under this section was to be.
subject to the power of revision conferred by s. 191, final.
According to the Judicial Committee ss. 188 and 191 contained a precise and self-contained code of appeal in regard to obligations which were created by the statute itself, and it enabled
the appeal to be carried to the supreme head of the executive
government. The Boa.rd observed:
"It is difficult to conceive what further challenge of the
order was intended to be excluded other than a challenge
in the civil courts."
The well known dictum of this judgment to be found at p. 236
is that the exclusion of the jurisdiction of the civil courts is not
to be readily inferred, but such exclusion must either be explicitly
expressed or clearly implied and even if jurisdiction was excluded
the civil courts would still have jurisdiction to examine into cases
where the provisions of the Act had not been complied with, or
the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure.
In Pyx Granite Co. Ltd. v. Ministry of Housing and Local
Government(') Viscount Simonds observed:
"It is a principle not by any means to be whittled down
that the subject's recourse to Her Majesty's courts for the
determination of his rights is not to be excluded except
by clear words."
In Raleigh 'Investment Co. Ltd. v. Governor General in Council(') where the plaintiff-appellant had filed a suit claiming a declaration that certain provisions of the Indian Income-tax Act purporting to authorise the assessment and charging to tax of a
non-resident in respect of dividends declared or paid outside British
India, but not brought into British India, were 11/tra vires the
legislative powers of the Federal Legislature and for repayment
(1) [1960] AC. 260, 2a6.
(2)
74 I.A. 50, 62.
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PABBOJAN TEA CO., V. DY. COMMR., LAKHIMPUR (MiUer, J.)
267
of the sums meniioned, the Judicial Committee observed, while
dismissing the appeal, that
"In construing the sections it is pertinent, in their Lordship's opinion, to ascerta.in whether the Act contains
machinery which enables an assessee effectively to raise
in the courts the question whether a particular provision
of the Income-tax bearing on the assessment made is or
is not ultra vires. The presence of such machinery, though
by no means conclusive, marches with a construction of
the section which denies an alternative jurisdiction to inquire into the same subject matter."
The Judicial Committee examined the different provisions of the
Indian Income-tax Act in some detail including s. 67 of the Act
and came to the conclusion that as the machinery provided by the
Act could be effectively adopted by the assessee complaining of
ultra vires assessment "jurisdiction to question
the
assessment
otherwise than by use of the machinery expressly provided by the
Act would appear to be inconsistent with the statutory obligation
to pay arising by virtue of the assessment."
It must be noted at once that the above extreme proposition
of law has not found favour here. This Court was not prepared
to accept the dictum in the judgment to the effect that even the
constitutional validity of the taxing provision would have to be
challenged by adopting the procedure prescribed by the Incometax Act-see Firm and l/luri Subbayya Chetty & Sons v. The State
of Andhra Pradesh('). In this case, the Court had to examine
whether s. 18-A of the Madras General Sales Tax Act, 1939 excluded the jurisdiction of civil courts to set aside or modify any
assessment made under the Act. S. 18-A there .provided that no
suit or other proceeding shall, except as expressly provided in this
Act. be instituted in any court to set aside or modify any assessment made under this Act. It was common ground that there was
no express provision made in that Act under which the suit could r
be said to have been filed. It was there emphasised that:
" ...... while providing for a bar to suits in ordinary civil
courts in respect of matters covered by s. 18-A, the legislatu~e .has taken the _precaution of safeguarding the citizens. nghts by prov1dmg for adequate alternative remedies.
~ect1on 11 of the Ac! provides for appeals to such author!ty as may be pres~~1bed; s. 12 confers revisional jurisdiction on the authonhes specified by it; s. 12-A allows an
ap~e.al to the app~llate Tribunal; s. 12-B provides for a
:ev1s1on by the. High Court under the cases specified in
it; s. 12-C provides for an ,appeal to the High Court; and
s. 12:D lays down that petitions, applications and appeals
to High Court should be heard by a Bench of not less than
two Judges ...... rt could thus be seen that any dealer who
(1) [1964) I S.C.R. 752, 760.
268
SUl'REME COURT REPORTS
[1968] 1 s.c .. n.
is aggrieved by an order of assessment passed in respect
of his transactions, can avail himself of the remedies
provided in that behalf by these sections of the Act. It is
in the light of these elaborate alternative remedies provided by the Act that the scope and effect of s. 18-A must
be judged."
In Kala Bhandar v.
Municipal Committee(')-a suit for
refund of excess tax purported to be recovered under the Central
Provinces and Berar Municipalities Act (2 ·of 1922)-this Court
examined the principles laid down in the above cases and said:
"Further, one of the corollaries flowing from the principle
that the Constitution is the fundamental law of the land
is that the normal remedy of a suit will be available for
obtaining redress against the violation of a constitutional
provision. The court must, therefore, lean in favour of
construing a law in such a way as not to take away this
right and render illusory the protection· afforded by the
Constitution."
The Court found that there was no machinery provided by the
Act for obtaining a refund of tax assessed and recovered in excess
of the constitutional limit and that the machinery actually provided by the Act was not adequate for enabling an assessee to
challenge effectively the constitutionality or legality of assessment
or levy of a tax by a municipality or to recover from it what was
realised under an invalid la.w.
In Kamala Mills Ltd. v. State of Bombay(') this Court had to
examine the question whether a suit filed by the Mills challenging
assessments made under the Bombay Sales Tax Act, 1946 was
barred under the provisions of s. 20. The said section read as
follows:
"Save as is provided in s. 23, no assessment made and no
order passed under this Act or the rules made thereunder
by the Commissioner or any person appointed under s. 3
tO assist him shall be called into question in any civil
court, and save as is provided in sections 21 and 22, no
appeal or application for revision shall lie against any
such assessment or order."
After examining the various sections of the Act including s. 5 the
charging section, s. 10 imposing an obligation on dealers to make
returns, s. 11 dealing with the assessment to tax and the procedure
to be followed in respect thereof, s. 11-A dealing with turnover
which ha\! escaped assessment and the right to prefer an appeal
and a revision under ss. 21 and 22 of the Act, the Court said:
"It would thus be seen that the appropriate authorities
have been given power in express terms to examine the
(1) [1965] 3 S.C.R. 499.
(2) [1966] 1 S.C.R. 64, 75.
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PABBOJAN ~EA CO. V. DY. COMMR., LAKHIMPUR (Mitter, J,)
269
returns submitted by the dealers and to deal with the
question as to whether the transactions entered into by
the ·dealers are liable to be assessed under the relevant
provisions of the Act or not. In our opinion, it is plain
that the very object of constituting appropriate authorities
under the Act is to create a hierarchy of special tribunals
to deal with the problem of levying assessment of sales tax
as contemplated by the Act. If we examine the relevant
provisions which conferred jurisdiction on the appropriate
authorities to levy assessment on the dealers in respect
of transactions to which the charging section applies, it
is impossible to escape the conclusion that all questions
pertaining to the liability of the dealers to pay assessment
in respect of their transactions are expressly left to be
decided by the appropriate authorities under the Act as
matters falling within their jurisdiction. Whether or not
a return is correct; whether or not transactions which are
not mentioned in the return, but about which the · appropriate authority has knowledge, fall within the mischief
of the charging section; what is the true and real extent
of the transactions· which are assessable; all these and
other allied questions have to be· determined by the appropriate authorities themselves ............ The whole activity
of assessment beginning with tbe filing of the return and
ending with an order of assessment, falls within the jurisdiction of the appropriate authority and no part of it can
be said to continue a collateral activity not specifically
and expressly included in the jurisdiction of the appropriate authority as such."
It was in the light of these provisions of the Act that s. 20 had to
be examined and this Court held that "the words used were so wide
that even erroneous orders of assessment made would be entitled
to claim its protection against the institution of a civil suit"-see
[1966] 1 S.C.R. at page 78. To quote the words of the judgmen1
itself:
"In every case, the question about the exclusion of the
jurisdiction of civil courts either expressly or by nec.essary implication must be considered in the light of the
words used in the sta.tutory provision on which the plea
is rested, the scheme of the relevant provisions, their
object and their. purpose."
The Court furthet said :
"Whenever it is urged before a civil court that its jurisdiction is excluded either expressly or by necessary inlpli·
B
cation to entertain claims of a civil nature, the co!lf(
naturally feels inclined to consider whether the remedy
afforded by an alternative provision prescribed by a special
L/SllSCI-4
270
SUPREME COURT REPORTS
[1968] 1 s.c.11.
statute is sufficient or adequate. In cases where the exclusion of the civil courts' jurisdiction is e'xpressly providded for, the consideration as to the scheme cif the statute
in question and the adequacy or sufficiency of the remedies
provided for by it may be relevant but cannot be decisive.
But where exclusion is pleaded as a matter of necessary
implication, such considerations would be very important,
and in conceivable circumstances, might even become
decisive. If it appears that a statute creates a special
right or a liability and provides for the determination of
the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down
that all questions about the said right and liability shall
be determined by the tribunals so constituted, it becomes
pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said
statute or not. The relevance of this enquiry was accepted
by the Privy Council in dealing with s. 67 of the Income
Tax Act in Raleigh lnveistment Co.'s case(') and that is
the test which is usually, applied by all civil courts."
We may also note the case of K. S. Ve.nkataraman & Co. v. State
of Madras(') where the above authorities were again examined at
some length. Here too the main question was, whether the suit
was not maintainable under s .. 18-A of the Madars General Sales
Tax Act, 1939. It was held by a majority of this Court that the
validity of an order by an authority acting under the provision
of a statute which was ultra vires would be open to challenge in
:i civil court. Referring to the case of Firm Radha Kishan (Deceased) represented by Hari Kishan v. Administrator, Municipal Committee, Ludhiana(') it was said that:
"a suit in a civil court will always lie to question the order
of a tribunal created by a statute, even if its order is, expressly or by necessary implication made final, if the said
tribunal abuses its power or does not ad under the Act
but in viola.tion of its provisions."
There can be no question in this case that the Minimum
Wages Act cuts across the contract between the employer and the
employee and wherever applicable the employer is obliged to pay
the minimum wages or take the consequences of failure to pay it.
Any employee who feels himself aggrieved by the refusal of the
employer to pay the minimum wages fixed under the Act has the
right to make a complaint either by himself or through the prescribed agents to the Authority mentioned in the Act. Under sub-s.
(3) of s. 20, the Authority has to hear the applicant and the employer or give them an opportunity of being heard and could
straightaway give a direction as regards the alleged non-payment
(1) I.A. 50.
(2) (1966] 2 S.C.R. 229.
13) (1964] 2 S.C.R. 273.
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271
of the minimum rates of wages and such compensation as he thinks
fit not exceeding ten times the amount of the excess of the mini·
mum wages over that which was paid. It is true that the sub-section
provides for a further inquiry but such inquiry is to be at the
discretion of the authority. The nature and scope of the inquiry
would depend on the exact controversy raised in the case. If it
be of a trivial nature, the tribunal can probably deal with it in a
summary manner, but where it is alleged that the notification under
the Act is not applicable to a certain class of workers it is the
duty of the authority to give a proper hearing to the parties allow·
ing them to tender such evidence as they think proper before mak·
ing an order which may have far-reaching consequences. The
authority in this case instead of recording any evidence and properly hearing the .matter, disposed of it in a perfunctory manner
which could hardly be called a hearing. As a matter of fact, the
only inquiry which took place in this case was a. very informal one
in the premises of the Doom-Dooma club for the space of half
an hour or so when the Authority had a talk with the managers
' of the tea estates. There is no provision for appeal or revision
against. the direction of the Authority although he may levy a
penalty to the extent of ten times the amount by which the minimum wages overtop the payment actuaUy made. Whatever he says
is the final word on the subject. All this can but lead to the con·
.clusion that s. 20 was not aimed at putting a. seal on the adjudica·
tion, if any, under it. It was to be of a nature which suited; tlie
discretion of the officer concerned although he was given the powers
of a civil court in certain respects. In such a situation, it is impossi·
ble to hold that the legislature meant to exclude the jurisdiction
of civil courts to go into the question of non-payment of minimum
wages claimed as final. In our opinion, sub-s. (6) of s. 20 merely
shows that :the discretion of the Authority could not be questioned
under any provision of the Act. It does not exclude the juri11diction
of the civil court when the challenge is as to the applicability of
the Act to a certain class of workers.
It is pertinent to note that s. 24 of the Act creates an express
bar in respect of a particular kind of suits, namely, suits for recovery of wages in certain eventualities. The obvious intention
was that a poor employee was not to be driven to file a suit for
the payment of the deficit of his wages but that he could avail
himseH of t!ie. machinery provided by the Act to get quick relief.
I~ doe~ not m terms bar the employer from instituting a suit when
G . his cla.tm is that he has been called upon to pay wages and com·
pensatton to .persons who are not governed by the notification
under the Minimum Wages Act.
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On an analysis' of the provisions of the Act, we find (I) suits
of the nature to be found in this case are not expressly biirred by
t~e ~c;t; (2) there is n? pr~vision for appeal or revision from the
direction of the authonty given under s. 20(3) of the Act: and '(3)
th~ authority. acting under s. 20(3) might levy a penalty which
1111ght be as high as ten times the alleged deficit of payment which
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(1968) 1 S.C.B.
again is not subject to any further scrutiny by any higher authority.
In view of our findings as above, as also the {act that the auth01
rity in this case dis-regarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that
the civil court had jurisdiction to entertain the suits.
The question next arises as to whether the plaintiff's made out
any case for relief. In our view, the plaintiffs were clearly entitled
to relief. The notification dated March II, 1952 was clearly applicable only to "ordinary unskilled labour". The word 'ordinary'
has in our opinion, some significance. It means "usual, not exceptional". In other words, ordinary unskilled labour must mean
unskilled labour prepared to work and working in the ordinary
way. If under r. 24 of the rules framed under this Act the period
of work is fixed at nine hours a day, a labourer who cannot work
for more than half of it, does not fall within the category' of ordinary unskilled labour. · A lettera challan dannot work due tt> his
incapacity, old age, infirmity, etc. According to the evidence of
the managers of the tea gardens, they were unwilling to work for
more than half the day beca.use of their physical condition. It was
due to their want of physical strength to work for nine hours a
day and not the inability or unwillingness of the employer
to find employment for them for a full day. Take for instance the
facts in Pabbojan Company's case. According to the evidence of
its manager, the labour force in the estate consisted of 1650
labourers while the number of sub-normal workers was 83 before
March 30,
1952. It cannot be suggested that if the tea garden
could provide work for 1567 labourers working nine hours a day,
it could not do so for an additional number of 83 persons. As the
manager said, these persons were unwilling to perform the normal
tasks which were available to them as normal labourers. The
manager also said that lettera c!)allans (sub-normal workers) always go off at II or 12 midday. Take again the evidence of Bairagi,
a worker of the Rupai Tea Estate. He said that some years before
he was examined in court, he used to work as a carpenter. As a
result of a fall from a house, he had pain on his chest and approached the doctor and requested him to enter his name as lettera
challan. He frankly admitted that he got into lettera challan because he could not complete the full task. The evidence of the
managers and of this the only witness on this point on behalf of
labour establishes beyond doubt that lettera challan could not
work a full day and as such they were not ordinary unskilled labour.
As such their case would be covered by the proviso to s. 15 and
they would not be entitled to receive wages for a full normal working day because of their unwillingness to work. It does not matter
whether some of the lettera challans could also 1'e said to be disabled employees who would come within the purview of s. 26(1) of
the Act. From the evidence of the managers, it is clear that the
system of lettera challans had been in force for very many years.
The record does not show ·nor are we in a position to guess why
an exception was not made in their case in the notification. But
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PABBOJAN TEA CO. V. DY, COMMR., LAKHl:MPUR (Miller, J,)
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even in the absence of any mention of Jettera challans in the notification, sub-normal workers who are unwilling to work for more
than half a day are not entitled to receive what ordinary unskilled
labourers working nine hours a day get. The object of the Act is
to ensure some sort of industrial peace and harmony by providing
that labour cannot be exploited and m11st at least be provided with
wages which are fixed at certain minimum rates. It would go against
such a principle if the courts were to uphold that persons who cannot work for more than half a day should receive what others
working a full day get. However, that is a matter which the appropriate government may consider.
We therefore hold that the orders of the defendant No. 1 dated
June 2, 1954 were not binding on the plaintiffs-appellants. We
declare that the subnormal workers of the tea estates (commonly
known as Lettera challans) were not entitled to full minimum wages
without performance of a normal day's task or without working
the prescribed number of hours. We also direct a perpetual injunction to issue against the defendant No. I restraining him from
enforcing the orders dated June 2. 1954. The appeals are therefore allowed and the decrees passed by the Subordinate Judge and
the High Court of Assam ate set aside. There wi\l be no order as
to costs.
Y.P.
Appeals allowed.