1. This is a petition under Article 226 of the Constitution for a direction restraining the respondent from giving effect to the fixation of minimum wages by the notification published in the Fort St. George Gazette dated 23rd March 1959. The petitioner is a snuff merchant, carrying on business under the name and style of 'Basha's Snuff Co.' at Broadway, Madras. The minimum wages for certain items of work in snuff industry were fixed by an order of the Government dated 27th December 1950, in exercise of the powers conferred by Section 3(1) of the Minimum Wages Act, 1948. This fixation was given effect from the date of the notification, namely, 1st March 1951. Since then, the rates so fixed were followed by the snuff industry in respect of the particular items of work. This fixation was sought to be revised, and the proposal to that effect would appear to have been made by the Government in about November 1957, under Section 5(1)(a) of the Minimum Wages Act, 1948.
2. The petitioner complains that, before making this notification the Government failed to follow the procedure laid down by Section 5(1) read with Section 9 of the Minimum Wages Act, 1948. This Act, as is well known, was introduced to provide for fixing minimum rates of wages in certain employments. Section 3(1) empowers the appropriate Government to fix, in the prescribed manner, minimum rates of wages payable to employees employed in an employment specified in parts I and II of the schedule. In Part I, item 3 relates to employment in any tobacco manufactory, including bidi making. Section 4 deals with minimum rates of wages, and Section 5 relates to the procedure for fixing minimum rates of wages. Section 5, as amended by Act XXX of 1957, states that, in fixing minimum rates of wages in respect of any scheduled employment of in revising minimum rates of wages so fixed, the appropriate Government shall either appoint as many committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or by notification in the official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of the notification, on which the proposals will be taken into consideration. Sub-section (2) of the section enjoins that, after considering the advice of the committee or committees 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) of that sub-section, the appropriate Government shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment. This section, therefore, lays down two alternative modes of procedure for fixation of minimum rates of wages, namely, by the advice of the committee or sub-committee or on the strength of the representations made pursuant to the notification by the Government calling for them. The composition of such committees or sub-committees is provided for by Section 9. Under that provision, each of the committees or sub committees shall consist of persons to be nominated by the appropriate Government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one third of its total number of members, one of such independent persons shall be appointed the Chairman of the Committee or sub committee. It is common ground that before the impugned notification was made, the procedure prescribed by Section 5(1)(b) was not adopted. The Government no doubt determined the rates of wages applicable to the snuff industry by and with the advice of a committee appointed under Section 5(1)(a). The contention of the petitioner is that, inasmuch as the committee, on whose advice the Government fixed the rates of wages for the snuff industry, did not have on it any employer or employee in the snuff industry, the impugned order is illegal. It is said that, in the snuff industry, certain peculiar features prevail, which will have a bearing upon the fixation of minimum wage structure applicable to the employees and that the fact that other industries in tobacco were represented on it is not a sufficient compliance with Section 5(1)(a) read with Section 9. It is further contended that odd representations which might have been made not pursuant to a notification under Section 5(1)(b) but by other means, are not also complied with those statutory provisions. It seems to me that there is substance in the submissions so made by the petitioner.
3. The intention of Sections 5 and 9 clearly is that, before fixing minimum wages for employees in scheduled industries the Government must have the necessary materials for consideration, in the form of advice by a committee constituted in the prescribed manner or representations received pursuant to the notification in the Gazette. This implies that the committee should be constituted of such persons who would be conversant with the conditions of the particular industry and competent to advise the Government in the matter of fixing minimum wages for employees in the particular industry. It is obvious that, in fixing the minimum wages, a number of relevant circumstances and factors will have to be considered. In Express Newspapers Private Ltd. v. Union of India. : (1961)ILLJ339SC , the Supreme Court pointed out the principles for fixation of rates of wages, and these principles comprehend considerations such as the capacity of the industry to pay, the proper measure for gauging the capacity of the industry to pay, and so on. In order to have a correct perspective of the minimum wages to be fixed in accordance with the principles enunciated in that decision and the provisions of the Act, it is necessary that the Government should have proper advice, and such advice can be expected only from men who are conversant with the particular industry,
4. It is, however, contended by the learned Additional Government Pleader that, inasmuch as the committee, which advised the Government, consisted of employers and employees in other categories of tobacco industry, as for instance bidi industry, it was a sufficient compliance of Sections 5(1) and 9. In support reliance is placed on the language of item 3 in part I of the Schedule. Item 3 reads:
'Employment in any tobacco (including bidi making) manufactory.'
Section 9 says that the committee shall consist of persons to be nominated by the appropriate Government representing employers and employees in the scheduled employments. So it is contended that, so long as the committee consist of persons drawn from tobacco manufactory, not necessarily from all kinds of tobacco manufactory, the statutory requirement is satisfied. Though the argument is prima facie attractive, I think I should reject it bearing in mind the purpose for which Sections 5(1) and 9 have been enacted. The constitution of a committee under Section 9 is not a mere formality. As I already mentioned, the committee is expected to be an expert body, well informed to advise in the matter of arriving at the minimum wages payable to employees in particular industries. It is not contended that there was everything common between snuff industry and other industries in tobacco. It is the intention of the two statutory provisions, in my opinion, that the Committee should comprise of men who are experienced in the particular industry. My attention has been invited to the other entries to Part I of the schedule. But a reference to them does not compel me to hold that a committee composed of persons other than those in the particular industry is a proper compliance of Section 9 in advising fixation of minimum wages for employees in that particular industry.
5. On that view of Sections 5(1) and 9, I considerthat the impugned notification, in so far as it relatesto the fixation of minimum wages for employeesin snuff industry was made without following theprocedure prescribed by Section 5(1)(a) read with Section 9, and is, therefore, illegal. It is hereby quashed. The petition is allowed, and the rule nisi ismade absolute to the extent mentioned. No costs.