STATE OF RAJASTHAN & ANOTHER versus HART RAM NATHWANI & ORS.

STATE OF RAJASTHAN & ANOTHER

HART RAM NATHWANI & ORS. September 3, 1975

[A. ALAGIRISWAMI, P. ]{, GOSWAMI AND N. L. UNTWALIA, JJ.]

1'.<ii11in1.u111 Wages Act (11 of 1948) ss. 5(C) (e), 7 and 9-Appointment of gove·rnnient officers on cornmittees and Advisory Board as independent mem-bers-Propriety-Advisory Board appointing its own sub .. c:o111mittees-Propriety --S. 5{1)(a), scope of.

~ction 5 ( l ) of the Minimum Wages Act. 1948, provides two types of procedure for fixing and revising minimun1 Wa$es in respect of any scheduled employment. Section 7 provides for the· appointment of an Advisory Board. If the procedure provided in s.5(1)(a) is followed consultation with the Advisory Board is not re.quired while it is mandatory in case· the procedure in cl. (b) is followed. Under cl. (a), the Government can appoint as many Committees. or sub-committees as it considers necessary to hold inquiries and advise it in respect" of such fixation or revision. Section 9 requires that every committee, sub-committee and the Advisory Board shall consist of representa-tives of the. employtrs and empioJr~es in eQ:ual numbers and independend persons, whose number shall not exceed 1/3 of the total number of members. One of the independ"ent persons shall be appointed Chairman. [643 G~644 F]

In the present case. the State Government followed the procedurl! under cl. (a) and appointed committee i'or revising the wages with resPect to employ1nent' in Mica 1\.1ines which is scheduled employment undier the Act. The committee consisted of five members, two representatives of the employers, two of the employees and Professor oi' Economics of Government college as an independent member.. It submitted its report to the Government. The Government. referred the matter to the Advisory Board which consisted of 21 members, ~ representatives of the employers. 8 of the employees and 5 govern-ment officers as independent members. The Advisory Board appointed sub--committee 10 go further into matter. In the sub~committce were taken same persons who were not members of the Advisory Board. The rulJ.... commiue·e made its recommendations and the Advisory Board after considering those recommendations also submitted its report and the State Government accepted it with slight variations and fixed minimum wages by notification. The respondent challenged its validity . and the High Court struck it down holding that, (i) the constitution of the Wage Committee and. the Advisory Board was not valid because the economics professor and the 5 government members were not independent members, (ii) the Board had exceeded its power in appointing sub-committee, and, (iii) the Board committed an illegality in taking into consideration its recommendations while submirting its report to the Governn1ent.

Allowing the appeal to this Court,

HELD : ( 1) It may be that in certain circumstances trersons who are in sefvice or the Government may cease to have an independent character if the question arises of fixation of minimum wages in scheduled employment. In the easel of fixation of minimum wages in scheduled employment in '':hich the Government is directly interested, whether Government servants can come in the category of fndependent members in addition to the Government officers who come on the Board or Committee as representatives of the employers is matter which~ has to be considered in an appropriate case. But in the instant case, the constitution Qf the[1 ]Wage c·ommittee or the Advisory Board was not bad, as Government was not an employer in. the 11ica Min'es in respect of which minimum. wages were fixed. [646 A-El(2) The Advisory Board can device its o'.vn procedure anJ collect infer~ rn::i.tion by nppcii·1~1nent of sub-co1nmittec-s cons·i'lting only of some of its members. But the Advisory Board has no pov.'er to appoint rival snb-comm,ittee to the one appointed by the Gov~rnn1..::nt and take in such sub-committee, pep;ons who are not men1bers of the Board as was' done in this case. Therefore. the Advisory Board committed :in irregularity in appointing the sub-committee and taking into consideration its report. [646 E-G]

(3) But it Joes not follow th<it the irnpu~ncd notification based upon the reporL of the Advisory Board was had e\"Cn if the irregularity, is a!'.sumed to be an illeg~lity. The recommendations n1ade by the Board even on con-siOeration of the report of- its sub-committee \\.'a<> only' that of the Advi~ory Board. Since th:: procedure was under s. 5 ( 1) (a) it was not n1andatory for Government to take ~he opinlon of the Advisory Boa!·d at all. Therefore, the impugned notification and the proce::::ding<:i pursuant to it cJ.nnot be qua:':.h1:<l. [646 G-647 BJ

Gulan1aha111ed T(Fasahcb, Bidi factory hy its proprietors Shanlrao and others v. Stati' oJ Do111bay and o!hcrs A.I.R. 1962 Bombay 97. referred to.

CIVIL APPELLATE JURISD!CTICJN : Civil Appeal No. 1800 of 1969.

Appeal by special leave from the Judgment and Order dated the 25th January., 1967 of the Rajasthan High Court in D.B. Civil Writ Petition No. 40(1 of 1966.

S. M. Jain, for the appellant.

1hc Judgment of the Court was delivered by

UNTWAUA, J.-The hearing of this appca: filed by the State of Rajasthan and another by special leave proceeded ex-partc against the respondents. After examining all the pros and cons of the dispute involved in this appeal with the assistance of the learned counsel for the appellants we have come to the conclusion tt?at the appcai should be allowed.

Frqm time to time the Government of Rajastha',1 fixed or revised the minimum rates of wages for employees in the Mica Mines through-out the State of Rajasthan under section 5(2) of the Minimum Wages Act, 1948-Central Act 11 of 1948-hereinafter called the Act. The employment in the Mim Mines is scheduled employment within the meaning of section 2(g) of the Act-Eventually the minimum rates of wages were facd by the Government by notification dated the 3 lst July, 1965, the validity of which was challenged in the Rajasthan High Court by several employers in the Mica Mines in Civil Writ No. 406/1966 and 15 other writs. Several proceedings initiated on the basis of the impugned notificatio.1 were also challenged by the em-ployers. Bench of the Rajasthan High Court allowed the writ applications, quashed ,the impugned notification and the proceedings taken in pursuance thereof. This appeal arises out of Civil Writ No. 406/1966 in which the employer is respondent no. 1.

The notification dated 31-7-1965 was challenged on several grounds ·and we will be concerned with some of them in this appeal. The relevant facts are these. 'For the purpose of revising the minimum wages fixed by the earlier notification dated the 2'>llr April, 1959,'the State Government in the first instance appointed Committee consisting of five members on the 17th May, 1962. The constitution of the

The constitution of the

Committee was, however, revised by notification dated the 26th Novem-ber, 1962. This committee consisted of five members, two rcpresenta-ti\'es of the employers, two representatives of the employees and one, Professor K. S. Mathur, Head of the Department of Economics Degree College, Ajmer. The last was tak~n as an independent member of the committee. It submitted its report to the Government. The matter was referred by the Government to the Advisory Board wasti-tuted under section 9 of the Act. . It appears that Sub-committee was appointcl\ by the Advisory Board to go into the matter further and to consider the report of the Wage Committee appointed earlier by the Government on the 26th November, 1962. In the Sub-committee were taken some persons who were not members of the Advisory Bonrd. The Sub-committee also submitted its report to the Advisory Board which consisted of 21 members, 8 employers' representatives, 8 employees' rcprcsrntatives and 5 Government officers appointed in the category of independent members. The proceedings of the Buard <lntcd the 7th May, 1965 showed that it considered the recommenda-tions of the Wage Committee and the Sub-committee and then sub-mitted its report containing its recommendations of the. wage structure suggesting an alternative scale of m:•aimum wages according as the link-ing of Drnrness Allowance with the consumer-price-indices. The State Government accepted the wage structure recommended oy the Board but with slight variation in the matter of the linking basis with Dearness Allowance and made it all ;•,1clusive rates of minmum wages per month.

The learned Acting Chief Justice of the Rajastt:an High Court who . delivered the leading judgment in the case, on consideration of the various divergent decisions of the High Courts came to the conclusion that the constitutiG',1 of the Wage Committee was not valid as •he Professor of the Government College was no~ an independent member. Similarly the constitution of the Advisory Board was also bad as the five Government officers on the Board could not be said to ho indepen-dent members. He was also of the view that the Board had exceeded its power in appointing Sub-committee :rad committed an illegality in taking into consideration its report while making recommendations ·to the Government. The other learned Judge with some amount of reservation and diffidence agreed to the order proposed by the learned Acting Chief Justice. It may be stated hete that the fixation of the minimum wage in the ngtification dated the 31st July, 1965 was also challenged before the High Court on certain grounds relating to the merits of the fixation but the High Court has over-ruled such objections . Section 5 of the Act provides the procedure for fixing •a·ad revising minimum wages in. respect of any scheduled employment. There are two tyPes of procedure indicated in clauses (a) and (b) of sub-section (1). Obviously in the present case the procedure followed was the one.provide? in clause .<a). We shall now read sub-section (2) of sectwn 5 with the proviso appended thereto :

"After cdasidering the advice of the committee or commi-ttees 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 notification under clause (b) ~f th~t su~­section, the appropriate Government shall, by nollfica~10n m the Official Gazette, fix, or, as the rnse may be, revise the minimum rates of wages in respect of · each scheduled employn1ent, and unless such notification othcrwii:;:c provides, it shall come into force on the expiry of three months from the date of its issue :

Provided that where the appropriate Government pro-poses to revise the minimum rates of wages by the mode specified in clause (b) of sub-section (!), the appropriate Government shall con.suit the Advisory Board also."

It would be noticed that the power to fix the minimum wages is the Government. Uader clause ( e) of sub-section (I) the Govern-mcnt can appoint as many committees and sub-committees as it consi-ders necessary to hold enquiries and advise it in respect of such fixa-tion or revision of minimum wages. Section 7 of the Act says

"For the purpose of co-ordinating the work of commit-tees and sub-committees appointed under section 5 and advis-ing the appropriate Govcrnm~nt generally in the matter of fixing and revising minimum rates of wages, the appropriate Government shall appoint an Advisory Board."

If the procedure provided in clause (a) is followed, consultation with the Advisory Board is not required in terms but is resorted to whik it is mandatory in case of procedure (b). Section 9 provides :

"Each of the committees, sub-committees and the Advisory Board shall consist of persons to be nominated by the appro-priate Government representing employers and employees in the scheduled employments, who shall be equal in number, an_d independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman by the appropriate Government."

The question as to whether Government officer could be appointed on Committee" Stib-committtec or. the Advisory Board as an independent person came up for consideration before the various High Courts. Majority of them took the view that it could be so. few High Courts, however took contrary view. In the judgment under appeal the. High Court of Rajasthan has fallen in the line of the minority. But recently the point has been set at rest by decision of this Court in The State of Andhra Pradesh v. Narayana Velur Beedi Manufacturing Factory and others(!). We consider it appropriate to quote the whole of para-graph 10 of that judgment :

"In our judgment the view which has prevailed with the Majority of the High Courts must be sustained. The commit-tee or the advisory board can only tender advice which is not binding on the Government while fixing the minimum wages (i)-[f973]1Labour Law Journal 476.

or revising the same as the case may be. Of course, the Government is expected, particulady in the present .deniocra-tic set up, to take that advice seriously into consideration and act on it but it is not bound to do so. The language of s. ~ does not contain any indication whatsoever that persons in the employment of the Government would be excluded from the category of independent persons. These words have essentially been employed in contradistinction 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 not fol-low that persons in the service or employ of the Government were meant to be excluded and they cannot be regarded as. independent persons vis-a-vis the representatives of the em-ployers and employees. Apart from this the presence of high Government officials who may have actnal working knowledge· 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 Govern-ment. It may be that in certain circumstances such per-sons who are in the service of the Government may cease to have an independent character if the question arise of fixation of minimum wages in 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 indepen-dent or not. But the mere fact that they happen to be Gov-ernment officials or Government servants will not divest them of the character of independent persons. We are not impres-. sed with the reasoning adopted that 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 member of an advisory committee or board he is expected to give an impartial and independent advice and not merely carry out what the Government may be inclined to do. Gov·ernment officials. are responsible persons and it cannot be said that they are not capable of taking detached and impartial vi~."

The learned Acting Chief Justice of the High Court considered many of such decisions of the High Courts in his judgment and posed " question "Suppose, the Government is an employer in the particular scheduled employment for which wages are sought to be fixed under the Act. Could it be postulated in such case that art officer of the Government can be property appointed as an 'independent' person on any of the statutory bodies in question?" An answer in the negative was given. He then said "I need hardly add in this connection that if the Govern-ment be not an employer in any of the scheduled employments, there would be no objection to the Government officers of the requisite calibre and experience being appointed as independent persons within the meaning of the section" .. But thinking that in the list of the scheduled employment are included "employ1U.ents such as public motor transport,.·

.and construction and maintenance of roads and building operations and may be, for aught we know, in certain other employments also" in which the State Government is an employer and the Advisory Board constituted is meant for advising the Government in those employments also he held the constitution of the Advisory Board to be bad. In the extract which we have given above from the decision of this Court sentence is to be found resembling the line of thinking of the learned Acting Chief Justice. This Court has said "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 scheduled employment in which the appropriate Goverrn)lent is directly interested" The question as to whether in such situation Government officer appointed on the Board or Committee can be said to be independent member or not will have to be cautiously considered when an appropriate occasion arises for the same. After all, even in such cases the final authority fixing or revising the minimum wages in scheduled employment is the Govern-ment. Government officers can undoubtedly come on the Board or the Committee as representatives of the employers. Whether in such situation more Government servants can come in the category of th" independent members is question which is open to serious debate and doubt. But in the instant case on the authority of this Court it is clear that the constitution of either the Wage Committee or the Advisory Board \Vas not bad, as the Government was not an employer in the J\.1ica Mines in respect of which employment only minimum wages were fixed by revision in the notification dated the 31st July, 1965.

No procedure has been prescribed in the Act as to the method which the Advisory Board is to adopt before making its recommenda-tions to the State Government. It can devise its own procedure and collect some informations by appointment of sub-committee consisting only of some of its members as was the case in the decision of the Bombay High Court in Gulanwhamed Tarasaheb, Bidi Factory by its proprietors Shamrao and others v. Stiate of Bombay and others(1[1]). But surely the Advisory Board has no power to appoint . rival sub-committee to the _one appointed by the Government and take in such sub-committee persons who are not members of the Board, as was done in this case. There is, therefore, no doubt that the Advisory Board committed an irregularity in taking into consideration the report of the sub-committee invalidly appointed by it. Does it necessarily follow from this that the impugned notification dated 31-7-1965 based upon the report of the Advisory Board which in its turn had taken into considera-tion not only the report of the Committee appointed by the Govern-ment but also that of the sub-committee appointed by the Board is bad? 'On careful consideration of the matter we give our answer in the nega-tive. The irregularity, even characterising it as an illegality, committed by the Advisory Board in taking into consideration the report of the &ub-committee was not such as to nullify its recommendation contained in its report, or, in any event, the final decision of the Government con-tained in the impugned notification. It must be remembered that the procedure followed in this case was the one provided in section 5 ( 1) .

1_1}A!.R. i962lfombay 97.

(a) in which case it was not mandatory for the Government to take the opinion of the Advisory• Board. After all, the recommendations made by the Board even on consideration of the report of the Sub-committee along with that of the Committee was the advice of the Board. The · Government did accept it but accepted it after some modification. ln such situation we do not think that the notification dated 31-7-1965 deserves invalidation. It follows as corollary that the· proceedings started pursuant to the notification cannot also be quashed.