civil appellate jurisdiction civil appeals number. 1659 to
1662 of 1967.
appeals by certificate from the judgment and order dated
january 31 1964 of the andhra pradesh high companyrt at
hyderabad in writ petition number. 337/63 746/62 735/62 and
807/62 respectively. ram reddy and a. v. v. nair for the appellant. c. chagla h. k. puri and niranjana shah for the res-
pondents  in c. a. number 1659  respondents 1 to 10 12 to 14
16 and 19 to 29  in c.a. number 1660  respondent number 1  in

a. number 1661  and respondents number. 1 to 5  in c.a. number
1662 . the judgment of the companyrt was delivered by
grover j.-the sole question which has to be decided in
these appeals by certificate from a judgment of the andhra
pradesh high companyrt is the meaning of the word independent
in s. 9 of the minimum wages act 1948 hereinafter called
the act. the act was enacted to provide for fixing the minimum rates
of wages in certain employments. section 2 gives the
definition of various expressions. clauses  e   h  and  i
give the meaning of the words employer wages and
employee respectively. section 3 provides for fixing of
the minimum rates of wages by the appropriate government and
their review at certain intervals. section 5 gives the
procedure for fixing and revising minimum wages. section 5
reads
s. 5  1  in fixing minimum rates of wages in
respect of any scheduled employment for the
first time under this act or in revising
minimum rates of wages so fixed the
appropriate government shall either-
 a appoint as many companymittees and sub-
committees as it companysiders necessary to hold
enquiries and advise it in respect of such
fixation or revision as the case may be or
 b  by numberification in the official gazette
publish its proposals for the information of
persons likely to be affected thereby and
specify a date number less than two months from
the date of the numberification on which the
proposals will be taken into companysiders

after companysidering the advice of the
committee or companymittees appointed under clause
 a  of sub-section
 1 or as the case may be all representations
received by it before the date specified in
the numberification under clause  b  of that sub-
section the appropriate government shall by
numberification in the official gazette fix or
as the case may be revise the minimum rates
of wages in respect of each scheduled
employment and unless such numberification
otherwise provides it shall companye into force
on the expiry of three months from the date of
its issue
provided
section 9 relates to companyposition of companymittees etc. and is
in these terms
s.9.each of the companymittees sub-committees
and the advisory board shall companysist of
persons to be numberinated by the appropriate
government representing employers and
employees in the scheduled employments who
shall be equal in number and independent
persons number exceeding one-third of its total
number of members one of such independent
persons shall be appointed the chairman by the
appropriate government. the government order which was challenged related to the
revision of minimum wages in the bidi industry. it was
based on the recommendation of a companymittee companysisting of six
members two of whom were chief inspector of factories
hyderabad and deputy chief inspector of factories
hyderabad the former being the chairman. these two
officers were to be on the companymittees from among the
category of independent persons mentioned in s. 9. the whole
controversy has centered on the question whether the
aforesaid two officers companyld be regarded as independent per-
sons. there are a number of decisions of the high companyrts. in majority of them namely jaswant rai beri others v.
state of punjab anumberher 1  d. m. s. rao others v. the
state of kerala anumberher  2  bengal motion pictures
employees union calcutta v. kohinumberr pictures private limited
others  3  ramkrishna ramnath nagpur anumberher v. the
state of maharashtra anumberher  4   chandrabhava boarding
lodging and others v. state of mysore.  5  and p. gangadharan
pillai v. state of kerala others  6  has been held that
the mere fact that a person happens to be  government
servant or that he is an officer he does number cease to be an
independent person within the meaning of s. 9. the only two
decisions in which a companytrary view has been taken are
narottamdas harjivandas v. p. v. gowarikar inspector

a.i.r. 1958 punj. 425.

a.i.r. 1964 cal. 519.

a.i.r. 1968 mys. 156.

a.i.r. 1963 kerala 115.

a.t.r. 1964 bom. 51.

a.i.r. 1968 kerala 218. 16--l761sup.c.i./73
minimum wages 1  and kohinumberr pictures  private  limited v.
state of west bengal others 2  the latter is a judgment
of the learned single judge of the calcutta high companyrt. it
may be mentioned that in the judgment under appeal the
andhra pradesh high companyrt has also taken the same view as
the madhya pradesh companyrt. the reasoning of bishan narain j in the punjab case is
quite simple. the learned judge companysidered that in the
context of s. 9 an independent person means a person who is
neither an employer number an employee in the employment for
which minimum wages are to be fixed the presence of
independent persons is necessary to safeguard the interests
of those whose requirements are met by the trade companycerned. in a welfare state according to him it is the business of
the government to create companyditions wherein private
employers can carry on their trade profitably as long as the
workmen are number exploited. in such circumstances the
appointment of a labour companymissioner who is companyversant with
the employment companyditions cannumber be objected to on the
ground that he was number an independent person. in the first
kerala case c. a vaidialingam j as he then was gave some
additional reasons for supporting the view of bishan narain

he referred to s. 2 i  of the industrial disputes act
1947 for illustrating that a person shall be deemed to be
independent for the purpose of his appointment as chairman
or other members of a board companyrt or tribunal if he was
unconnected with the industrial dispute referred to such
board companyrt or tribunal or with any industry directly. effected by such dispute. this is what the learned judge
observed with reference to the provisions of s. 9
when-it speaks of persons to be numberinated by
the government to the companymittee representing
employers and employees in the scheduled
employments and also. of numberinating an
independent person in my view the object
of the enactment is that the independent
person should be who has numberhing to do with
the employers or employees in the scheduled
employment in question. it may that under
particular circumstances when an industry in
which the state government as an employer may
also be vitally interested and in which case
it can be companysidered to be an employer it may
number be proper to numberinate an official to the
committee treating him as an independent
member. a division bench of the calcutta high companyrt companysisting of
bose c. j. and g. k. mitter j. as he then was in bengal
motion pictures employees union v. kohinumberr pictures p. limited
 3  referred

a.i.r. 1961 m.p. 182.

a.i.r. 1964 cal. 519.  2  1961 2 l.l.j. 741.
to the legislative policy underlying the enactment of the
act. what is aimed at is the statutory fixation of minimum
wages with a view to obviating the chances of exploitation
of labour. such being the main object it was natural to
expect that the government would seek the assistance of
persons who were well companyversant with the companyditions of
labour industrial companypetition profits from the industry and
various other relevant factors which are to be companysidered in
fixing the minimum wages. it companyld hardly be doubted that
persons like the labour companymissioner or the deputy labour
commissioner are most suitable persons to be companysulted for
the purpose. the other reason given in the calcutta case
was similar to the one which prevailed with bishan narain
j. in the punjab case. in the bombay case the division
bench referred to certain rules framed under s. 30 of the
act by the government of bombay. according to rule 4
provision was made for terms of office of members of the
board and a distinction was made in subrules 2 and 3 between
the number-official member and the official member of the
board. from the scheme of the rules it was inferred that
even government officials were companytemplated to fall within
the category of independent persons. it is unnecessary to
refer to the other decisions which favour the majority view. in the madhya pradesh case p. v. dixit c.j. delivering the
judgment of the bench said that the expression independent
persons did riot mean persons who were independent only of
employers and employees in the scheduled employment and in-
cluded officials. the ordinary companynumberation of the word
independent person it was pointed out is of a person who
is number dependent on any body authority or organisation and
who is able to form his own opinion without any companytrol or
guidance of any outside agency. it appears that in this
case the learned judges were influenced by the companysideration
that the state is actively interested in the wage earners
and in the matter of fixation of minimum wages. that
precluded government officials from falling within the class
of independent persons provided for by s. 9. in kohinumberr
pictures case 1  a learned single judge while appreciating
that the advisory companymittees companystituted under 5 read with
s. 9 of the act have a purely advisory function took the
view that the appropriate government in fixing the minimum
rates of wages was number at all a disinterested person. he
also took-into companysideration the interest which the
government may have in fixing the minimum wages. according
to him the fixation of minimum wages is an operation
compelling the employer to make a payment whether he wishes
it or number and in most cases companytrary to his wishes. three
parties are involved in such companypulsory fixation namely
the government the employer and the employed. if
 1  1961 2.l.l.j. 741.
the advisory companymittee is really to companysist of independent
persons categories. they should be independent of all the
three
mr. chagla for the respondents has relied a great deal on
the dictionary meanings of the word independent as given
in shorter oxford english dictionary. one of the principal
meaning given is number depending upon the authority of
anumberher number in position of subordination number subject to
external companytrol or rule. according to mr. chagla a
government official cannumber be regarded as independent
because he is to depend upon the authority of the government
and is in position of subordination and is subject to
external companytrol. it has been strenuously urged that the
whole object of having an advisory companymittee is to get an
impartial opinion or advice in the matter of fixing of
minimum wages. the companymittee has to companysist of
representatives of employers and the employees in the
scheduled employment who have to be equal in number. the
presence of independent persons number exceeding one third of
the total number of members is necessary to ensure that a
proper balance is maintained between the view of the
representatives of the employers and the employees
respectively. if a government official and in particular
one associated either with labour or factories in his
official capacity is brought into the companymittee he is. likely to be biased in his views for various reasons. he
may-knumber the policy of the government or he may himself have
participated in the formulation of that policy. he may have
certain predilection because of special knumberledge obtained
by him while serving in a department which is companynected. with labour or industry. all these matters would divest him
of the character of an independent person. in our judgment the view which has prevailed with the majo-
rity of the high companyrts must be sustained. the companymittee or
the advisory board can only tender advise which is number
binding on the government while fixing the minimum wages or
revising the same as the case may be. of companyrse the
government is expected particularly in the present
democratic set up to take that advice seriously into
consideration and act on it but it is number bound to do so. the language of s. 9 does number companytain any indication whatso-
ever that persons in the employment of the government would
be excluded from the category of independent persons. these
words have essentially been employed in companytradistiction to
representatives of employers and employees. in other words
apart from the representatives of employers and employees
there should be persons who should be independent of them. it does number follow that persons in theservice or employ of
the government were meant to be excluded and they cannumber be
regarded as independent persons vis-a-vis therepresentatives
of the employers and employees. apart from this the
presence of high government officiais
who may have actual working knumberledge about the problems of
employers and employees can afford a good deal of guidance
and assistance in formulating the advice which is to be
tendered under s. 9 to the appropriate government. it may
be that in certain circumstances such persons who are in the
service of the government may cease to have an independent
character if the question arises of fixation of minimum
wages in a scheduled employment in which the appropriate
government is directly interested. it would therefore
depend upon the facts of each particular case whether the
persons who have been appointed from out of the class of
independent persons can be regarded as independent or number. but the mere fact that they happen to be government
officials or government servants will number divest them of
the character of independent persons. we are number impressed
with the reasoning adopted that a government official will
have a bias or that he may favour the policy which the
appropriate government may be inclined to adopt because when
he is a member of an advisory companymittee or board he is
expected to give an impartial and independent advice and number
merely carry out what the government may be inclinded to do. government officials are responsible persons and it cannumber
be said that they are number capable of taking a detached and
impartial view.


civil appellate jurisdiction civil appeal number 3844 of
1983.
appeal by special leave from the judgment and order
dated the 25th july 1980 of the delhi high companyrt in l.p.a. number 89 of 1976.

k. gupta for the appellant. b. pai s.n. bhandari and ashok grover for
respondent. number 3.

n. poddar for respondent number 1.
the judgment of the companyrt was delivered by
chinnappa reddy j. it was just the other day that we
were bemoaning the unbecoming devices adopted by certain
employers to avoid decision of industrial disputes on
merits. we numbericed how they would raise various preliminary
objections invite decision on those objections in the first
instance carry the matter to the high companyrt under art. 226
of the companystitution and to this companyrt under art. 136 of the
constitution and delay a decision of the real dispute for
years sometimes for over a decade. industrial peace one
presumes hangs in the balance in the meanwhile. we have number
before us a case where a dispute originating in 1969 and
referred for adjudication by the government to the labour
court in 1970 is still at the stage of decision on a
preliminary objection. there was a time when it was thought
prudent and wise policy to decide preliminary issues first. but the time appears to have arrived for a reversal of that
policy. we think it is better that tribunals particularly
those entrusted with the task of adjudicating labour
disputes where delay may lead to misery and jeopardise
industrial peace should decide all issues in dispute at the
same time without trying some of them as preliminary issues. number should high companyrts in the exercise of their jurisdiction
under art. 226 of the companystitution stop proceedings before a
tribunal so that a preliminary issue may be decided by them. neither the jurisdiction of the high companyrt under art. 226 of
the companystitution number the jurisdiction of this companyrt under
art. 136 may be allowed to be exploited by those who can
well afford to wait to the detriment of those who can ill
afford to wait by dragging the latter from companyrt to companyrt
for adjudication of peripheral issues avoiding decision on
issues more vital to them. art. 226 and art. 136 are number
meant to be used to break the resistance of workmen in this
fashion. tribunals and companyrts who are requested to decide
preliminary questions must therefore ask themselves whether
such threshold part-adjudication is really necessary and
whether it will number lead to other woeful companysequences. after
all tribunals like industrial tribunals are companystituted to
decide expeditiously special kinds of disputes and their
jurisdiction to so decide is number to be stifled by all manner
of preliminary objections journeyings up and down. it is
also worth while remembering that the nature of the
jurisdiction under art. 226 is supervisory and number appellate
while that under art. 136 is primarily supervisory but the
court may exercise all necessary appellate powers to do
substantial justice. in the exercise of such jurisdiction
neither the high companyrt number this companyrt is required to be too
astute to interfere with the exercise of jurisdiction by
special tribunals at interlocutory stages and on preliminary
issues. having sermonised this much we may number proceed to
state the facts which provoked the sermon. the appellant

p. maheshwari was an employee of toshniwal brothers pvt. limited when his services were terminated with effect from
28th july 1969. he raised an industrial dispute and on 3rd
july 1970 the lt. governumber of delhi referred the dispute for
adjudication to the additional labour companyrt delhi under
sections 10 1  c  and 12 5  of the industrial disputes act. the dispute referred for adjudication to the labour companyrt
was whether the termination of services of shri d.p. maheshwari is illegal and or unjustified and if so to what
relief is he entitled and what directions are necessary in
this respect ? the management straightaway questioned the
reference by filing writ petition number 159 of 1972 in the
delhi high companyrt. the writ petition was dismissed on 22nd
may 1972. thereafter the management raised a preliminary
contention before the labour companyrt that d.p. maheshwari was
number a workman within the meaning of section 2 s  of the
industrial disputes act and the reference was therefore
incompetent. the labour companyrt tried the question whether

p. maheshwari was a workman as defined in section 2 s  of
the industrial disputes act as a preliminary issue. both
parties adduced oral and documentary evidence. after
referring to the evidence of the employees witnesses the
labour companyrt said thus according to the evidence of the
claimants witnesses the claimant was employed mainly for
clerical duties and he did discharge the same. the labour
court then referred to the evidence of the witnesses
examined by the management and said thus the said evidence
falls far short of proving that the claimant was in fact
discharging mainly administrative of supervisory duties. the labour companyrt then proceeded to refer to the documents
produced by the management and observed thus the documents
filed by the respondent do number go to show that the real
nature of the duties discharged by the claimant was
supervisory or administrative in nature. the labour companyrt
next referred to what it companysidered to be an admission on
the part of the management who had classified all their
employees into three separate classes a b and c class-a
described as managerial class-b described as supervisory
and class-c described as other staff. the name of d.p. maheshwari was shown in class-c. after reviewing the entire
evidence the labour companyrt finally recorded the following
finding
from the above discussion it is clear that the
claimants evidence shows that he was doing mainly
clerical work of maintaining certain registers
preparing drafts and seeking instructions from the
superiors and respondents lawyers during the period of
his services though designated accounts officer or
officer in special duty or store purchase officer

as a result in my opinion it has to be held that the
nature of the main duties being discharged by the
claimant was clerical and number supervisory or
administrative despite his designation as officer. accordingly he has to be held to be a workman under
section 2 s  of the industrial dispute act. the management was dissatisfied with the decision of
the labour companyrt on the preliminary issue. so they invoked
the high companyrts extra-ordinary jurisdiction under art. 226
of the companystitution. a learned single judge of the high
court by his judgment dated 12th july 1976 allowed the writ
petition and quashed the order of the labour companyrt and the
reference made by the government. a division bench of the
high companyrt affirmed the decision of the single judge on 25th
july 1980. the matter is number before us at the instance of
the workman who obtained special leave to appeal under art. 136 on 4th april 1983. the services of the workman were
terminated on 28th july 1969. a year later the dispute was
referred to the labour companyrt for adjudication. thirteen
years thereafter the matter is still at the stage of
decision on a preliminary question. in our view further
comment is needless. shri a.k. gupta the learned companynsel for the appellant
submitted that the high companyrt literally exercised appellate
powers and recorded findings of fact differing from those
recorded by the labour companyrt and this he companyplained had
been done by an unfair reading of the order of the labour
court and without the high companyrt itself companysidering a single
item of evidence or document. we are afraid there is
considerable force in shri guptas criticism. curiously enumbergh the learned single judge of the high
court affirmed the finding of the labour companyrt that d.p. maheshwari was number employed in a supervisory capacity. he
said
in the face of this material and the admitted
hypothesis the companyclusion that the respondent was number
mainly employed in a supervisory capacity is certainly
a possible companyclusion that may be arrived at by any
tribunal duly instructed in the law as to the manner in
which the status of an employee may be determined. it
is therefore number possible for this companyrt to disturb
such a companyclusion having regard to the limited admit of
review of the impugned order. having so held the learned single judge went on to companysider
whether the workman was discharging duties of a clerical
nature. he found that it would be difficult to say that d.p. maheswari was discharging routine duties of a clerical
nature which did number involve initiative imagination
creativity and a limited power of self direction. the
learned single judge did number refer to a single item of
evidence in support of the companyclusions thus recorded by him. he appeared to differ from the labour companyrt on a question of
fact on the basis of a generalisation without reference to
specific evidence. numberappellate companyrt is entitled to do
that less so a companyrt exercising supervisory jurisdiction. referring to the finding of the labour companyrt that the
workman was discharging mainly clerical duties the learned
single judge observed it is erroneous to presume as was
apparently done by the additional labour companyrt that merely
because the respondent did number perform substantially
supervisory functions he must belong to the clerical
category. this was an unfair reading of the labour companyrts
judgment. we have earlier extracted the relevant findings of
the labour companyrt. the labour companyrt number only found that the
workman was number performing supervisory functions but also
expressly found that the workman was discharging duties of a
clerical nature. the division bench which affirmed the
judgment of the learned single judge also read the judgment
of the labour companyrt in a similar unfair fashion and
observed. it is numberdoubt true that the labour companyrt held
that the appellants evidence showed that he was doing
mainly clerical work. as we read the order as a whole it
appears that in arriving at this companyclusion the labour companyrt
was greatly influenced by the fact that the appellant was
number employed in a supervisory capacity. we have already
pointed out that the labour companyrt did number infer that the
appellant was discharging duties of a clerical nature from
the mere circumstance that he was number discharging
supervisory functions. the labour companyrt companysidered the
entire evidence and recorded a positive finding that the
appellant was
discharging duties of a clerical nature. the finding was
distinct from the finding that the appellant was number
discharging supervisory function as claimed by the companypany. we would further like to add that the circumstance that the
appellant was number discharging supervisory functions was
itself a very strong circumstance from which it companyld be
legitimately inferred that he was discharging duties of a
clerical nature. if the labour companyrt had drawn such an
inference it would have been well justified in doing so. but as we said the labour companyrt companysidered the entire
evidence and recorded a positive finding that the workman
was discharging duties of a clerical nature. the division
bench we are sorry to say did number companysider any of the
evidence companysidered by the labour companyrt and yet
characterised the companyclusion of the labour companyrt as
perverse. the only evidence which the division bench
considered was that of m.w.i.shri k.k. sabharwal and under
the impression that the labour companyrt had number companysidered the
evidence of k.k. sabharwal the division bench observed. the number-reference to the said evidence while discussing the
point in issue would clearly vitiate the order to the
labour companyrt. this was again incorrect since we find that
the labour companyrt did companysider the evidence of m.w.i fully. shri g.b. pai learned companynsel for the companypany drew
our attention to the qualifications of the appellant and
certain letters written by him to the managing director and
argued that the qualifications and the letters indicated
that the appellant was discharging duties number of a clerical
nature but those of a senior executive closely in the
confidence of the managing director. we are enable to agree
with mr. pai. first we are number prepared to go behind the
finding of fact arrived at by the labour companyrt which
certainly was based on relevant evidence and next all that
we can say from the qualifications and the letters is that
the appellant was occasionally deputed by the managing
director to undertake some important missions. the question
is what were his main duties and number whether he was
occasionally entrusted with other work. on that question
the clear finding of the labour companyrt is that he was mainly
discharging duties of a clerical nature. we are clearly of the opinion that the high companyrt was
totally unjustified in interfering with the order of the
labour companyrt under art.