Writ Petition No.4323 of 2012

1st October, 2015.

Petitioner Counsel: Mr. R.B. PURANIK
Respondent Counsel: Mr. M.R. PILLAI, Mr. A.M. GORDEY, Mr. S.S. GHATE, Mr. D.M. KAKANI, Mr. H.D. DUBEY

Cases Cited:
A. K. Bindal and anr. Vs. Union of India and Ors., 2003(4) ALL MR 1160 (S.C.)=(2003) 5 SCC 163 [Para 16,31]
French Motor Car Co., Ltd. Vs. The Workmen, AIR 1963 SC 1327 [Para 16,31]
Concept Pharmaceuticals Ltd. Vs. Concept Pharmaceuticals Kamgar Sanghatana, 2005 II CLR 337 [Para 16,31]
M/s. Polychem Ltd. Vs. R. D. Tulpule, Industrial Tribunal Bombay and anr., AIR 1972 SC 1967 [Para 16,31]
Union of India Vs. Cynamide India Ltd. and anr., (1987) 2 SCC 720 [Para 23]
M/s. Gupta Sugar Works Vs. State of U.P. And Ors., 1987 (Supp) SCC 476 [Para 25]
Bhuwalka Steel Industries Ltd. Vs. Bombay Iron and Steel Labour Board and anr., 2010 ALL SCR 241=(2010) 2 SCC 273 [Para 33]

JUDGMENT

S. B. SHUKRE, J. :- Heard. Rule, made returnable forthwith. Heard finally by consent of the parties.

2. By this petition, the grievance raised by the petitioner is that the order dated 12/08/2011 passed by the respondent no.1 increasing rates of wages payable to Mathadi workers by 23% is arbitrary and that the respondent no.1 has failed to perform its duty in taking appropriate steps to make full and adequate utilization of Mathadi workers.

3. The petitioner is a Government Limited Company within the meaning of Section 617 of the Companies Act, 1956. It deals in manufacture and sale of steel and its allied products. For the purposes of marketing the steel products manufactured by it, the petitioner has established a Central Marketing Organization, having sales offices situated across India. One of its branch sale offices is situated at Nagpur. For the purpose of storing and warehousing the steel products, the petitioner has established a warehouse at village Butibori situated near Nagpur. The steel products of the petitioner are transported to Butibori Railway Station by goods trains, where they are unloaded to the ground and then loaded on the trucks for being dispatched, wholly or partly, to petitioner's warehouse. If the goods are not sent to petitioner's warehouse at Butibori, the goods are loaded on the trucks of the buyers to whom the goods are sold at the railway station itself. For the goods sent to warehouse, again unloading and loading operation is required to be undertaken. In addition to that, stacking of goods in the warehouse also becomes necessary. For performing the aforesaid activities, manual workers (hereinafter referred to as "Mathadi workers") are deployed. The provisions of the Maharashtra Mathadi, Hamal and Other Manual Workers' (Regulation of Employment and Welfare) Act, 1969 (hereinafter referred to as "Mathadi Act" for short) being applicable to these operations undertaken by the petitioner, which is a registered employer with the Mathadi Board i.e. respondent no.1, the Mathadi workers sent by respondent no.1 for carrying out the said operations, have to be accepted by the petitioner. The State Government in exercise of its power under Section 3 of the Mathadi Act has framed a scheme known as "Nagpur Grocery Markets or Shops, Railway Yards and Goods Sheds, Public Transport Markets Vehicles, Khoka Making Establishments, Timber Markets and Shops, Steel Markets or Shops, Factories and Other Connected Establishments, Unprotected Workers (Regulation of Employment and Welfare) (Amendment) Scheme 1990 (hereinafter referred to as "Scheme" for short).

4. It is the contention of the petitioner that the Board constituted under Section 6 or 6A of the Mathadi Act, while fixing the rates of wages payable to Mathadi workers, has to take into consideration the provisions contained in the Scheme, in particular the provision of Clause 33. The petitioner points out that the Board which passed the impugned order has been constituted in terms of Section 6A of the Mathadi Act i.e. respondent no.1, a one man Board and not in terms of Section 6 of the Mathadi Act, which has a representative or popular character. Petitioner submits that Clause 33 of the Scheme which deals with wages, allowances and other conditions of registered workers is relevant for the purposes of this petition. According to the petitioner, Sub-clause (5) of Clause 33 of the Scheme provides for the factors to be considered by the Board while fixing or revising or modifying the conditions of service of the registered workers. The factors prescribed therein relate to cost of living, the prevalent conditions of service in comparable employments in the local area, the capacity of the registered employers to pay and other relevant circumstances.

5. Petitioner further submits that way back in February, 1991, the respondent no.1 had fixed the formula of wages payable to the registered Mathadi workers. At that time substantial work of loading and unloading was being done manually. The respondent no.1 then devised the formula for determining rates of wages payable to Mathadi workers by taking into consideration the manual nature of operations and other relevant factors. The wages were divided into two components, namely, basic wages and dearness allowance. For fixing the rate of dearness allowance, the year of 1960 was taken as the base and it was provided that the rates would be revised every year twice, firstly in the month of February and secondly in the month of August. The formula envisaged 2% increase for every increase of 10 points in the Consumer Price Index (CPI). Because of this formula, petitioner further submits, over a period of time, the rates of wages payable to Mathadi workers saw steep rise so much so that petitioner was required to make a representation to respondent no.1 in the year 2004 for reduction in the rates of wages as they were going beyond the financial capacity of the petitioner. Since, by the year 2004, the steel material handling operations, due to technological innovations, had undergone drastic changes with manual operations having reduced to a minimum and use of cranes for handling the steel material having become the order of the day, petitioner also requested respondent no.1 to rationalize the rates accordingly. There were negotiations between the representatives of the petitioner and the Trade Unions representing Mathadi workers and as a result, an agreement between the two was struck, whereby rates of wages payable to Mathadi workers were fixed. The rates, so agreed, were some what lower than the existing rates. These rates were to be effective till 8/5/2008. However, there was no optimization in number of Mathadi workers sent to establishments of the petitioner.

6. Petitioner submits that even before the expiry of the term of the agreement on 8/5/2008, Mathadi workers made another demand for revision of wages. Several meetings were held between respondent no.1 and representatives of Mathadi workers. While petitioner pleaded for rationalization of rates taking into account reduction of manual operations and increased use of cranes for handling steel material, increase in turn over, need for reducing number of Mathadi workers being deputed at railway siding and warehouse at Butibori and other relevant factors, representatives of Mathadi workers stressed upon rising cost of living. No agreement between two sides could be reached and, therefore, the then one man Board considered various factors and by its order dated 17/1/2009, revised the rates of wages. The order gave rise of 42.29% over the existing rates of wages payable to Mathadi workers. However, the one man Board rejected the demand of Trade Unions for revising the rates after every six months and reverting back to 1991 formula. The one man Board further directed that revised rates would remain in force during the period from 6/5/2008 to 31/3/2011. Petitioner submits that although the increase of 42.29% given by one man Board was not acceptable to it, it did not challenge the order. Petitioner further submits that there was also reduction in turn over during the period from years 2008-2009 to 2010-2011, as a result of which there was increase in the amount of wages and levy paid by the petitioner.

7. The rates so fixed were due for revision after March, 2011 and there was once again a demand by respondent nos.2 to 4 for revising the rates payable to Mathadi workers. Petitioner made an offer of Rs.40 Per MT of material handled at Butibori railway siding and Rs.28 Per MT for material handled at Butibori warehouse after calculating the weighted average of quantity handled and the amount paid during the period 2008- 2009 to 2010-2011. Petitioner contended that there was no justification for keeping different rate structures, one for handling material weighing above 4 MT and the one below 4 MT as most of the operations were being done mechanically and not manually. Petitioner submits that all that was required to be done by Mathadi workers was to put a sling around the steel bundles and attach them to the giant hooks of cranes which would lift the material and put down on the ground or reload on the trucks. Petitioner also pleaded that average of these two different rate structures be taken and on this average, the petitioner also submitted, 10% increase could be given. Petitioner also raised the issue of deputing excess Mathadi workers and stressed the need for deploying optimum man power so that each Mathadi worker would get three times more wages on same turn over even without increasing the rates of wages. Petitioner also submitted that steel business was highly competitive and it had to sell the steel at competitive prices for which purpose it was necessary for it to reduce the costs of inputs, so that it would be able to sell the steel material at comparable rates. Petitioner submits, it had also pleaded before the respondent no.1, that rates in the comparable industries in the region be taken into account while revising the rates of wages payable to Mathadi workers. However, one man Board, by the order passed on 12/8/2011, impugned herein, revised the rates of wages by taking into consideration only one factor i.e. cost of living, although it accepted the proposal of the petitioner to fix same rates of wages for handling of steel material and doing away with differentiated rate structure of wages based on quantum or tonnage system. But according to the petitioner, respondent no.1 did not consider the average of two rates applicable to steel material weighing more than 4 MT and the one weighing less than 4 MT and considered the highest rate of wages of the two as the basis for granting increase. The over all increase granted by respondent no.1 was of 23% and since highest of the two different rates of wages was taken as the basis, the resultant rise in rates of wages, according to the petitioner, is exorbitant. Petitioner submits that the effective increase given for handling material at railway siding is Rs.49.38% and the effective increase given for handling material at warehouse is 66.66%.

8. Petitioner submits that on 30/3/2011 in another petition bearing Writ Petition No. 826 of 2010, the Division Bench of this Court had passed an order directing the Government that a decision for constitution of a representative or popular board be taken within a period of three months from 30/3/2011. Therefore, petitioner further submits, one man Board should have waited for appointment of a popular Board and should not have gone ahead with passing of the impugned order. Petitioner submits that in about six days after passing of impugned order, on 12/8/2011, a popular board was constituted by a notification dated 18/8/2011.

9. Petitioner submits that while passing the impugned order, the one man Board i.e. respondent no.1 has not at all considered two most relevant factors as delineated in Clause 33 of the Scheme. These factors are of financial capacity of the registered employer and prevalent rates of wages existing in comparable industries in the region. Therefore, according to the petitioner, the impugned order is absolutely illegal and arbitrary and thus deserves to be quashed and set aside. Petitioner also submits that respondent no.1 did not consider reduction of Mathadi workers to be deployed at railway siding and warehouse of the petitioner in view of substantial change in the nature of handling operations from manual to mechanical. Therefore, petitioner has, by this petition, sought quashing and setting aside of the impugned order dated 12/8/2011 and also issuance of direction to respondent no.1 for scientifically deciding the optimum number of Mathadi workers required to be sent at railway siding as well as warehouse of the petitioner for undertaking steel material handling operations.

10. We have heard Mr. Puranik, learned counsel for the petitioner, Mr. Pillai, learned counsel for respondent no.1, Mr. Gordey, learned Senior Counsel for respondent nos. 2 to 4 i/by Mr. Ghate, learned counsel for respondent no.2, Mr. Kakani, learned counsel for respondent no.3, and Mr. Dubey, learned counsel for respondent no.4. With the assistance of respective counsel for the parties, we have also gone through the impugned order and the paper book of this case.

11. Mr. Puranik, learned counsel for the petitioner has submitted that the impugned order is arbitrary and illegal as it does not take into account relevant considerations while revising or modifying the earlier rates of wages payable to Mathadi workers. Moreover, passing of the impugned order also involves issue of propriety.

12. Mr. Puranik submits that 23% rise in rates of wages given by respondent no.1 is exorbitant for the reason that while applying principle of uniformity in the wage structure, irrespective of the quantum of steel material handled by Mathadi workers, a departure from the earlier differentiated wage structure based on quantum or tonnage system, the respondent no.1 considered highest rate of wages between two rates applicable earlier as base and then considering the rise in cost of living, gave increase of 23% to Mathadi workers. He submits that effectively the rise given amounted to 49% to 66% over the earlier rates of wages and it is here that the folly lies. He further submits that even the CPI of 2008 taken as the base for considering rise in cost of living is incorrect as the Mathadi workers were already receiving higher wages not commensurate with the work done by them, owing to shift from manual to mechanical handling operations at railway siding as well as warehouse. According to him, CPI of later year as the basis for considering rise in cost of living would have been more appropriate.

13. Mr. Puranik further submits that in Writ Petition No. 826 of 2010, Division Bench of this court had already passed an order on 30/3/2011 directing the State Government to take a decision for consideration of the representative Board within a period of three months from the date of the order and, therefore, the one man Board constituted under Section 6A of the Mathadi Act ought not to have taken such a major decision and awaited constitution of representative or popular Board so that the matter could have been considered by the latter and a just decision to the satisfaction of the stake holders was arrived at by it. He points out that within six days of passing of the impugned order, popular Board consisting of representatives of the registered employere, trade unions and State Government in terms of Section 6 of the Mathadi Act was constituted by issuance of notification dated 18/8/2012 by the State Government. He submits that this only shows the hurry shown by one man Board i.e. respondent no.1 in passing the impugned order is quizzical and raises an issue of propriety in doing so. According to him respondent no.1 ought not to have passed the impugned order on the ground of propriety.

14. Mr. Puranik further submits that two most relevant considerations prescribed by sub-clause (5) of Clause 33 of the Scheme, viz. financial capacity of the employer and prevalent rates in comparable industries in the region have not at all been taken into account by respondent no.1 in passing the impugned order. He submits that respondent no.1 has only considered one factor which is of cost of living and thus has committed a serious illegality. He submits that it is settled law that while fixing the rates of wages, the relevant considerations must be considered and if they are not seen to be considered while passing the order fixing the rates of wages, writ court would be justified in interfering with such an order.

15. The other arguments of Shri Puranik, learned counsel that the purpose of Wage revision was to rationalise the wages or to achieve uniformity or about relevance of previous Wage revision on 17.01.2009 with impugned Wage revision or its impact on it, need not be mentioned in detail at this stage. Shri Puranik, learned counsel has submitted that at Railway siding at Butibori, there are two operations i.e. unloading from Railway and loading into trucks while at godown of the petitioner, there are three operations i.e. unloading, loading and stacking and it is also not very relevant at this stage. The arguments have also been advanced about the percentage of Wage revision with reference to chart placed on record or then adoption of a particular rate to work out wages on tonnage basis. The respondents have stated that looking to the financial condition and in order to enable the petitioner - employer to compete in market, wages were reduced in 2009. Their submission is, rates in 2004 were more than 2009, hence, percentage hike granted by the impugned order needs to be compared not with 2009 position but 2004 position. They have also attempted to point out how the issue has been looked into in the case of similar industry by name Swetal Enterprises. Shri Puranik, learned counsel, has tried to show that the order of Mathadi Board dated 25.01.2010 in the case of Swetal Enterprises in fact draws support from the impugned Wage revision in the case of the petitioner. He has also attempted to show how number of operations in the case of said industry and the petitioner industry are distinguished artificially. The operations counted as two in the case of the petitioner have been treated as 1.5 operation in the case of Swetal.

16. For the submissions so canvassed, learned counsel for the petitioner has placed reliance upon the following cases:

(a) A. K. Bindal and anr. vs. Union of India and ors. [(2003) 5 SCC 163] : [2003(4) ALL MR 1160 (S.C.)].

(b) French Motor Car Co., Ltd. vs. The Workmen [AIR 1963 SC 1327].

(c) Concept Pharmaceuticals Ltd. vs. Concept Pharmaceuticals Kamgar Sanghatana [2005 II CLR 337].

(d) M/s. Polychem Ltd. vs. R. D. Tulpule, Industrial Tribunal Bombay and anr. [AIR 1972 SC 1967].

17. Mr. Pillai, learned counsel for respondent no.1, strongly opposing the writ petition, has submitted that no illegality nor any arbitrariness has been committed by respondent no.1 in passing the impugned order. He submits that while passing the impugned order, respondent no.1 has taken into consideration all the relevant factors and has particularly accepted the offer of the petitioner in giving rise of 10% to Mathadi workers, who are a poor-plot and who are in need of protection from the society. He submits that while rationalizing the rates of wages payable to Mathadi workers, Board particularly gave its anxious consideration as to which of the two rates prevailing earlier be accepted as the basis for considering the offer of the petitioner and ultimately in it's wisdom decided upon the highest of the two rates in the interest of the workers and then considered the rise in cost of living on the basis of 2008 CPI as there was gradual rise in cost of living thereafter which was required to be taken into account appropriately. He submits that no fault could be found in such a consideration. He further submits that it cannot be forgotten that the Board was considering revision of rates that were to apply from April 2011 onwards and, therefore, the Consumer Price Index of April 2008 taken by the respondent no.1 as the basis for considering increase in cost of living is appropriate and reasonable. He also submits that under Clause 33 of the Scheme, discretion has been conferred upon the Board to determine conditions of service of Mathadi workers, including the rates, allowances, over-time, hours of work, rest intervals, leave with wages and other service conditions applicable to them. The discretion so conferred upon the Board cannot be substituted by court of law just because another view is possible. Ultimately, learned counsel submits, the power is administrative although the decision taken by the authority is subject to judicial review, but that would be on the sound principles of law and not just because a registered employer feels that decision is burdensome for it.

18. Mr. Pillai, learned counsel further submits that so far as financial capacity argument is concerned, no data, except for one representation regarding finalization of wage revision dated 3/5/2011, which was devoid of any relevant data, was placed before respondent no.1. Therefore, learned counsel further submits, now it would not be open to the petitioner to raise any challenge on this ground.

19. Mr. Pillai learned counsel also submits that the rise given by respondent no.1 in the impugned order is not at all exorbitant and respondent no.1 has even considered financial capacity as well as applied the principle of industry-cum-region while finalizing the rates of wages. In order to illustrate, he submits that rates of wages payable in other comparable industries like Swetal Steel, TISCO and other establishments were much higher than the rates determined in respect of the petitioner. According to him, while a rise of 42.3% in rates of wages was given to workers of Swetal Steel, only 23% rise has been given to Mathadi workers of the petitioner.

20. Learned counsel also submits that there are other social aspects which need to be taken into consideration while determining rates of wages payable to Mathadi workers. He submits that Mathadi Act is a beneficial legislation enacted for giving protection to unorganized manual workers and ensuring their adequate supply as well as proper and full utilization in the establishments where they are deputed for doing manual work. He submits that Mathadi workers do not have fixed working hours and many a times they have to wait at the sites of the establishments until the work is made available to them and they are paid wages only after work is offered to them. They are also not paid any over-time or other benefits as an employee in regular service would get. Therefore, learned counsel submits, the respondent no.1, while determining the rates of wages payable to Mathadi workers, in the instant case, has ensured that no financial loss is caused to them while also keeping in view the financial interest of the petitioner.

21. Mr. Gordey, learned Senior Counsel for respondent nos.2 to 4 submits that the criteria laid down in sub-clause (5) of Clause 33 of the Scheme refers to four factors, namely, cost of living, financial capacity, rates prevalent in comparable industries and other relevant circumstances. He submits that all these factors have been appropriately considered by respondent no.1 in passing the impugned order. Of course, he further submits, there may be an error here and there, but unless and until any perversity is shown in the impugned order, which is not the case here, no interference by writ court would be warranted.

21. Mr. Gordey, learned Senior Counsel for respondent nos.2 to 4 submits that the criteria laid down in sub-clause (5) of Clause 33 of the Scheme refers to four factors, namely, cost of living, financial capacity, rates prevalent in comparable industries and other relevant circumstances. He submits that all these factors have been appropriately considered by respondent no.1 in passing the impugned order. Of course, he further submits, there may be an error here and there, but unless and until any perversity is shown in the impugned order, which is not the case here, no interference by writ court would be warranted.

23. The first contention of the petitioner relates to giving of rise of 23% in revision of wages being exorbitant with appropriate CPI not considered as the basis and various contentions of the petitioner ignored. It is also the contention of the petitioner that while departing from the earlier differentiated wage structure based upon quantum or tonnage system, the respondent no.1 ought to have taken minimum of the two rates as the basis for considering giving of rise, but same has not been done by respondent no.1. Thus, according to the petitioner, effective rise given by the impugned order ranges from about 49% to 66%, which, in the opinion of the learned counsel for the petitioner, is exorbitant. However, one has to accept the fact that the decision impugned herein is the one taken by a body having specialised knowledge of the subject while exercising administrative powers. Although, such a decision is amenable to judicial review, the scope of review is limited. As rightly submitted by learned Senior Counsel and learned counsel for the respondents, unless the administrative or expert decision is shown to be perverse or so illogical as no prudent administrator or alert expert would take it, judicial review of such a decision would not be permissible. In the case of Union of India vs. Cynamide India Ltd. and anr. [(1987) 2 SCC 720], wherein notifications fixing maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers issued under the provisions of the Drugs (Prices Control) Order 1970 and later the Drugs (Prices Control) Order 1979 were under challenge on various grounds. Laying down principles of law for reviewing such a decision, Hon'ble Apex Court held that price fixation was neither the function nor the forte of the court and court of law would not be concerned with either policy or rates fixed under the policy, except to a limited extent. The relevant observations as appearing in paragraph 4 of the said judgment are reproduced as under:-

"4. We start with the observation, 'Price fixation is neither the function nor the forte of the court'. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price. For example, if the legislature has decreed the pricing policy and prescribed the factors which should guide the determination of the price, we will, if necessary, enquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. But our examination will stop there. We will go no further. We will not deluge ourselves with more facts and figures. The assembling of the raw materials and the mechanics of price fixation are the concern of the executive and we leave it to them. And, we will not re-evaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers. The court will, of course, examine if there is any hostile discrimination. That is a different 'cup of tea' altogether."

24. The same principles of law would be applicable to judicial review of power to fix or revise the rates of wages payable to Mathadi workers. This court would not be concerned as to of what year the CPI should be taken as the base and at what percentage the hike should have been given by the Board, unless it is demonstrated that the rise given is perverse in the sense that it does not take into account the relevant factors or is so illogical as no prudent man would ever think of it.

25. In case of M/s. Gupta Sugar Works vs. State of U.P. And ors. [1987 (Supp) SCC 476], the Hon'ble Apex Court reiterated the aforesaid principles when it observed in paragraph 4 thus:-

"4. This will be the parameters and the limitation of inquiry by courts whenever the price fixation of any essential commodity is called into question. The court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination."

26. It would be thus clear that in matters like fixation of prices only limited enquiry by courts is permissible and it is confined to examining whether the prescribed factors are present to the mind of the authorities specifying the price and that the courts will not go into the mechanics of price fixation nor would re-evaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers. Order impugned in this petition essentially being of the same nature as order of price fixation, same principles of judicial review will apply to it. Therefore, it would not be possible for us to interfere in the impugned order only on the ground that the rates are exorbitant or CPI year is incorrectly taken or highest of two different rates of wages has been considered for giving rise in wages. However, we make it clear here that this observation of ours is confined only to the examination of the impugned order from the view point of what rates ought to have been given and what rates ought not to have been given and not any further. The impugned order is still required to be assessed for its correctness or otherwise on the anvil of other principles of law as laid down in the aforesaid cases of Cynamide India Ltd. and anr. and M/s. Gupta Sugar Works which we would be doing in the remaining part of this judgment.

27. It is the further contention of learned counsel for the petitioner that when representative Board was about to be constituted following the directions of this court, one man Board i.e. respondent no.1 was at the relevant time ought not to have gone ahead with revising the rates by passing the impugned order and, therefore, respondent no.1 committed a gross impropriety. The argument cannot be accepted for the reason that, as rightly submitted by learned Senior Counsel and the learned counsel for the respondents, it is nobody's case that respondent no.1 has no jurisdiction to revise the rates. Section 6A of the Mathadi Act is very clear in this regard. It lays down that for the reasons stated in sub-clause (1), if the representative Board could not be constituted, the State Government may by publishing a notification in the official gazette appoint a person who shall hold office until a Board is duly constituted under Section 6. Under sub-clause (2) of Section 6A, one man Board so appointed is deemed to constitute the Board for the time being and exercises all the powers and performs and discharges all the duties and functions conferred and imposed upon the representative Board. The person so appointed continues to function in office until the day immediately preceding the date of the first meeting of the representative Board constituted under Section 6. This should make it clear to us that one man Board appointed under Section 6A is for all purposes, a Board constituted under Section 6 until the date immediately preceding the date of the first meeting of a representative Board. There is also no provision contained in the Mathadi Act that one man Board constituted under Section 6A cannot perform any function in terms of Clause 33 of the Scheme, nor any such prohibitory provision has been brought to our notice by the petitioner. If it be so, the question of propriety would not arise and one man Board under Section 6A would be within its powers when it revises or modifies the rates of wages in pursuance of the power under Clause 33 of the Scheme.

28. Now, this brings us to the most crucial aspect of the case - whether relevant considerations have been gone into by respondent no.1 while passing the impugned order? - and this issue would have to be examined by carefully considering the provisions of sub-clause (5) of Clause 33 of the Scheme and the arguments canvassed in this regard by both sides. Sub-clause (5) of Clause 33 reads as under:-

33. WAGES, ALLOWANCES AND OTHER CONDITIONS OF SERVICE OF REGISTERED WORKERS:

1) ......

2) ......

3) ......

4) .....

5) In fixing, revising or, as the case may be modifying the conditions of service of the registered workers, the Board shall have regard to the cost of living, the prevalent conditions of service in comparable employments in the local area, the capacity of the registered employers to pay and any other circumstances which may seem relevant to the Board."

29. This provision clearly envisages such factors as cost of living, the prevalent conditions of service in comparable employments in the local area and the capacity of the registered employers to pay and also other circumstances which may seem to be relevant to the Board as the guiding factors for the Board for determining or revising or modifying the wages payable to Mathadi workers. We have seen in the cases of Cynamide India Ltd. and anr. and M/s. Gupta Sugar Works that in such matters the court is not concerned with policy or rates and it is neither the function nor forte of the court to delve into and decide the wages applicable to Mathadi workers. The only enquiry which is permissible is as to whether or not the relevant considerations have been gone into and irrelevant factors have been kept out as courts are not supposed to act like chartered accountants or cost analysts. But, courts can certainly look into the order fixing or revising the wages and set it aside if it is found that it does not reflect consideration of relevant factors or shows consideration of irrelevant ones.

30. Testing the impugned order on the above referred parameters, we find that the impugned order dated 12/8/2011 passed by the respondent no.1 takes into account only the rise in cost of living and it does not consider the other two important factors such as financial capacity and prevalent rates of wages in comparable industries, and out of these two, the latter is indicative of industry-cum-region principle. Learned Senior counsel and learned counsel for the respondents have argued that these two factors were indeed considered by the respondent no1, but, on a closure examination of the impugned order, we are unable to see any such consideration therein. Learned Senior Counsel and learned counsel for the respondents have also submitted that no data nor any documents were placed before respondent no.1 by the petitioner in order to buttress its case regarding its incapacity to pay higher rates and the rates prevalent in comparable industries in the same region and, therefore, the impugned order should not be faulted on this ground. Again we are unable to accept the contention for the reason that the impugned order nowhere shows that the respondent no.1 could not consider these two factors because of failure of the petitioner to produce before it the relevant material.

31. Even if it is assumed, just for the sake of argument, that the contention so advanced on behalf of the respondents is right, still, a duty is cast upon respondent no.1 under the provisions of the Scheme (Clause 33 (2)) to call upon the registered employers and trade unions of workers to submit appropriate representations and, therefore, it was necessary for respondent no.1 to call upon the petitioner to place before it proper representations. If the petitioner had failed to place before respondent no.1 the appropriate data even thereafter, respondent no.1 would have been right to have not considered the factor of financial capacity of the petitioner. As regards the following of industry-cum-region principle or the prevalent rates of wages in comparable or similar industries in the region, respondent no.1 could not be said to have been dependent upon the data to be submitted by the petitioner, as such information would have been available on its own record. It may be emphasized here that the principle of industry-cum-region, which must be followed while fixing rates of wages has been firmly entrenched in our labour jurisprudence. This could be seen from the ratio of the cases of A. K. Bindal and anr., [2003(4) ALL MR 1160 (S.C.)], French Motor Car Co. Ltd., Concept Pharmaceuticals Ltd. and M/s. Polychem Ltd., (Supra) referred to us by the learned counsel for the petitioner. We find that the impugned order having been based upon only one factor of rise in cost of living, and being oblivious to the two most relevant factors such as financial capacity to pay and prevalent rates of wages in similar industries in the region, cannot be upheld by us. It deserves to be quashed and set aside.

32. At this juncture, we find that after the impugned order was passed, the petitioner had made a representation on 2/9/2011 (Annexure "J") to the representative Board constituted under Section 6 of the Mathadi Act for reconsideration of the impugned order. It has also been brought to our notice by the learned counsel for the petitioner that there is yet another representation dated 29/12/2011 (Annexure "K") made to the same Board making a composite request for reconsideration of the rates fixed under the impugned order as well as deployment of optimum man power by reducing the number of workers being deputed by the Board at railway siding and warehouse at Butibori. In fact, it is also the grievance of the petitioner in this petition that inspite of several requests made to the Board, the Board has not considered the issue of deployment of optimum man power at railway siding, Butibori and warehouse of the petitioner at Butibori, which is resulting into rise in cost of inputs of steel material, which ultimately results in increase in the selling price of the steel material. There is also a prayer made by the petitioner in this regard, which is in addition to seeking a relief of quashing and setting aside of the impugned order. The Board, however, by its letter dated 30/1/2012 (Annexure "L") informed the petitioner that since one man Board constituted under Section 6A of the Mathadi Act had the jurisdiction to decide the issue of revision or modification of rates of wages payable to Mathadi workers, there was no question of the new Board reviewing the impugned order. This letter is, however, silent as regards the other request of the petitioner relating to optimization of man power being deployed at the sites of the petitioner. As we have found the impugned order as unsustainable in law, it would be appropriate that the case is sent back to the Board for reconsideration of the matter of revision of the rates of wages and also consideration of the representation of the petitioner regarding optimization of man power in terms of the powers of the Board under Clause 33 of the Scheme.

33. Before parting with the judgment we would like to state that even though the Mathadi Act is a beneficial legislation and interest of the poor workmen must be protected while making the employers realize their social obligations, more particularly to the have-nots of the society, as held in the case of Bhuwalka Steel Industries Ltd. vs. Bombay Iron and Steel Labour Board and anr. [(2010) 2 SCC 273] : [2010 ALL SCR 241] relied upon by the learned Senior Counsel for the respondent nos.2 to 4, the relevant considerations, which have not been gone into by respondent no.1 while passing the impugned order and which have been pointed out by us earlier is something which cannot be ignored. The Board is obliged to keep in view the lofty ideals for meeting of which the Mathadi Act has been enacted and the Board also cannot be faulted with if it tilts the balance some what towards the poor workmen while fixing the rates of wages payable to them, yet the Board is under a duty to also give its thoughtful consideration to all the factors prescribed by law. If the Board ignores the relevant factors, the law would step in and remind the Board of its duty in that regard. This is what we think we are doing in the present case by remanding the matter for consideration afresh in accordance with law.

34. In the light of this application of mind, it is seen that the other arguments of respective counsel noted by us briefly are not relevant at least at this stage. Those facets can be looked into by Mathadi Board while undertaking the process of Wage revision afresh as being directed by this Court and the parties can also demonstrate these necessary facts to support their rival contentions. The mode and manner in which work is done, the optimum strength of labour required to manually assist the Crane operator, the percentage of wage revision etc. are the facets which can be looked into by Mathadi Board.

35. In the result, the petition is allowed. Impugned order dated 12/8/2011 is hereby quashed and set aside. The matter is remanded back to respondent no.1 - Board for reconsideration of the issue of revision or modification of the rates of wages payable to Mathadi workers by the petitioner in terms of sub-clause (5) of Clause 33 of the Scheme and for consideration of the request of the petitioner made vide representation dated 29/12/2011 (Annexure "K") regarding deployment of optimum man power in terms of sub-clauses (1) and (2) of Clause 33 of the Scheme. The respondent no.1 shall give opportunity to the petitioner as well as respondent nos.2 to 4 to place before it relevant material. The respondent no.1 - Board shall decide the issues afresh as directed herein-above in accordance with Clause 33 of the Scheme as expeditiously as possible and till that time the petitioner shall continue to pay the wages to Mathadi workers at its establishments at the rates at which it is presently paying. After respondent No.1 passes the order, as directed by this court, the concerned parties shall abide by it.

36. Rule is made absolute in the above terms with no order as to costs.

Petition allowed.