M.M. Ismail, J.
1. These are petitions by the owners or lessees of rice mills in Tiruppur and surrounding places filed under Article 226 of the Constitution of India, praying for the issue of writs of certiorari to quash the order of the Government made in G.O. M.s. No. 660, Labour and Employment, dated 16th July, 1976. That was a notification issued by the Government under Clause (b) of Sub-section (1) and Sub-section (3) of Section 3 and Sub-section (2) of Section 5 of the Minimum Wages Act, 1948 (Central Act XI of 1948) hereinafter referred to as the Act, revising the minimum rates of wages revised in the Industries, Labour and Co-operation Department Notification No. 911 of 1961, dated 22nd February, 1961, published in the Fort St. George Gazette, dated 1st March, 1961. The said Notification was published in the Tamil Nadu Government Gazette, dated 28th July, 1976.
2. Though several grounds have been urged in the affidavits filed in support of these writ petitions, to challenge the validity of the aforesaid notification, since we are allowing these writ petitions on a very short ground, it is unnecessary to refer to all those grounds. Section 3 of the Act provides for the appropriate Government fixing minimum rates of wages for various employees as well as revising those rates from time to time. Section 5 of the Act deals with the procedure for fixing and revising minimum wages. Section 5(1) of the Act provides that 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 committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as I he case may be, or (b) 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 this section states 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 and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue. The proviso to Sub-section (2) of Section 5 states that where the appropriate Government proposes to revise the minimum rates of wages by the mode specified in Clause (b) of Sub-section (1), the appropriate Government shall consult the Advisory Board also. Section 9 deals with composition of the committees, sub-committees and Advisory Board and that section states-
Each of the committees, sub-committees and the Advisory Board 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 by the appropriate Government.
There is no dispute that the rice mill industry is one of the scheduled employments because it is item 2 in Part 1 of the Schedule to the Act.
3. Proceeding to act pursuant to these statutory provisions, the Government issued a notification in G.O. Ms. No. 1696, Labour Department, dated 24th December, 1971, under Section 5(1)(a) of the Act for the purpose of revising the minimum rates of wages. Under that notification the Government appointed a committee consisting of the members specified therein to hold enquiries and advise the State Government in the matter of revising the minimum rates of wages for employment in any dhall mill, rice mill or flour mill. The notification gave eight persons as the members of the Committee. The first and the second members were the Special Deputy Commissioner of Labour, Madras-5, who was also designated as Chairman, and the Assistant Director of Statistics (Market Intelligence), Madras-6. Members 3 to 5 were the representatives of employers, the third member being the Honorary General Secretary, District Rice Flour and Oil Mill Owners' Association, Manjakuppam, Cuddalore, N.T., South Arcot District, the fourth member being the Secretary, Century Flour Mills Ltd., Madras-1, and the fifth member being Thiru A.S.K.R. Rabindran, nominee of A.S.K. Ramaswami Nadar and Sons, Dhall Factory, Virudhunagar. Members 6 to 8 were the representatives of employees, the sixth member being Thiru T.M. Varadarajulu, nominee of Tamil Nadu Oil, Flour Mills and General Workers' Union, Madras, the seventh member being the Secretary, Coimbatore District General Workers Union, Tiruppur, and the eighth member being the President, Madurai General Workers Union, Madurai. After the constitution of the committee, two representatives of the employers, namely, the third and the fifth members ceased to be members of the committee, the former having died and the latter having failed to attend three consecutive meetings. The Government issued G.O. Ms. No. 993, Labour Employment and Housing Department, dated 9th October, 1974, appointing two other members in the places of Nos. 3 and 5 already referred to. The committee finally submitted its report, dated 31st October, 1975. It is on the basis of the said report, that the Government issued the impugned notification. The learned Government Pleader admits that the Government accepted the recommendations of the committee and only on such acceptance the Government order in question was issued.
4. One of the complaints of the petitioners herein was that the fourth member, a representative of the employers, had ceased to function after a certain stage, that the said membership fell vacant and the Government did not fill up the vacancy and that consequently the proceedings of the committee were vitiated which in turn vitiated the final notification issued by the Government. For the purpose of understanding this argument, it is necessary to refer to certain facts. As we have already pointed out, the fourth member was the Secretary, Century Flour Mills Ltd., Madras-1. Thus it will be seen that the person who was appointed as a member of the committee was not any person by name but one holding a particular position in the Century Flour Mills Ltd., Madras-1. In its letter dated 17th January, 1972, the Century Flour Mills Ltd., Madras-1, requested that instead of its Secretary, its Personnel Officer might be nominated as member of the committee. This request of the Century Flour Mills Ltd., Madras-1, was accepted by the Government and G.O. Ms. No. 1123, Labour and Employment Department, dated 15th July, 1972 was issued. By this Government order, the nomenclature of the fourth member was changed from 'Secretary' to 'Personnel Officer'. Thus, it is clear that the Personnel Officer of the Century Flour Mills Ltd., Madras-1, became a member of the committee representing the employers. Such Personnel Officer was one Thiru R.B. Krishnan. The said Thiru R.B. Krishnan, attended the meetings of the committee till 31st May, 1975 on which date he sent a letter to the Chairman of the Committee stating that as he had left the services of Century Flour Mills Ltd., Madras, he would be no longer able to serve on the committee and consequently requesting that his resignation from the membership of the committee might be accepted. The file produced by the learned Government Pleader shows that even after Thiru R.B. Krishnan had written this letter, a notice of the meeting dated 2nd June, 1975 convening the meeting of the committee to be held on 18th June, 1975 at Salem and on 19th July, 1975 at Coimbatore, was sent to him by name. We also find from the file that on 29th July, 1975, a notice convening the meeting of the committee to be held on 12th August, 1975 at Madras, was sent to the Managing Director, Century Flour Mills Ltd., Madras-1. Thereafter we find from the file that on 16th August, 1975 the Chairman of the Committee has sent a communication to the Manager, Century Flour Mills Ltd., Madras-1, stating that he would like to draw his attention to the earlier letter, dated 9th July, 1975, and requesting that he might be informed, if in. view of the Secretary of the Century Flour Mills, having resigned, the Mill was willing to continue its representation on the committee by making suitable alternative arrangements. It is stated that there was no response from the mills in question. Subsequently on 12th September, 1975, the Chairman of the Committee addressed the Government intimating the Government of the fact of membership of the committee from 31st July, 1975 by Thiru R.B. Krishnan and the steps he had taken to contact the Century Flour Mills and recommending that one Thiru R. Thangaswami, B.Sc. B.L., of Coimbatore, who was legal Adviser of the Tiruppur Rice Merchants Association, might be appointed as a member in the vacancy of Thiru R.B. Krishnan. However, the Government did not take any action immediately and as we have pointed out already the Committee itself submitted its report on 31st October, 1975. Thereafter the Government wrote a letter to the Commissioner of Labour on 11th December, 1975 stating that since the Committee had submitted its report, the question of filling up the vacancy in the committee did not arise, and that, therefore, no further action was necessary in that regard.
5. It is on the basis of these facts that the contention was advanced before us that there was no proper constitution of the committee as contemplated by Section 9, in view of the vacancy of one of the representatives of the employers not being filled up, and that therefore the ultimate order of the Government revising the minimum rates of wages on accepting the recommendations of the said committee was also vitiated. From the facts stated above one thing is clear and that is, after 31st May, 1975, Thiru R.B. Krishnan did not participate in the meetings of the committee. Notwithstanding the resignation letter received from Thiru R.B. Krishnan, the Chairman of the Committee sent a notice of the meeting to Thiru R.B. Krishnan and also sent one notice to the Managing Director of the Century Flour Mills Ltd., Madras-1. This procedure on the part of the Chairman was not really warranted and in fact was misguided. As we have pointed out already, no individual belonging to or concerned with the Century Flour Mills Ltd., was appointed to the committee by name and the person who was appointed to the committee was a particular Officer of the mills, namely, originally the Secretary and subsequently the Personnel Officer. Consequently whoever happened to be the Personnel Officer for the time being would be a member of the committee and the fact that Thiru R.B. Krishnan ceased to be the Personnel Officer would not cause any vacancy in the committee, because the successor Personnel Officer would automatically become a member of the committee. Unfortunately, this position was not realised by the Chairman of the Committee and that was the reason why he went on sending notice to Thiru R.B. Krishnan himself as if he was personally a member of the committee and subsequently to the Managing Director of the Century Flour Mills Ltd., Madras-1 as if he was a member of the Committee, and thereafter requested the Manager of the Mills to nominate a successor as if the nominee of the Century Flour Mills Ltd., should be a member of the committee. From what we have pointed out above, it is clear that the Personnel Officer of the Century Flour Mills Ltd., was a member of the Committee, as representative of the employers, and that member did not function after 31st July, 1975.
6. The next question for consideration is, what is the inference to be drawn from the non-functioning of the said member. If that member had merely abstained from attending the meetings of the Committee, the petitioner herein cannot have any grievance and no blame can be attached to the Government. From what we have stated above, once Thiru R.B. Krishnan ceased to be the Personnel Officer of the Century Flour Mills Ltd., Madras, the succeeding Personnel Officer should have automatically taken his place in the committee and the notice of meetings should have been sent to him. But, admittedly no such notice was sent to the Personnel Officer of the Company as such. According to Rule 12 of the Minimum Wages (Tamil Nadu) Rules, 1953, the Chairman shall fix the date, time and place of every meeting and notice in writing containing the aforesaid particular along with a list of business to be conducted at the meeting shall be sent to each member by registered post at least 15 days before the date fixed for such meeting, provided that in the case of an emergent meeting, notice of at least seven days shall be given to every member. Consequently, an obligation has been cast on the Chairman of the Committee to issue a notice for the meeting of the Committee to its members, and in this particular case, as we have pointed out already, after 31st May, 1975, though there were many meetings of the Committee, even for a single meeting, no notice was issued to the then Personnel Officer of the Century Flour Mills Ltd., Madras. Of course, this has resulted on account of the misapprehension on the part of the Chairman of the Committee that it was Thiru R.B. Krishnan by name who was a member of the Committee and that, therefore, in his place the Century Flour Mills and to substitute another person, but that misapprehension cannot obliterate the fact that one of the representatives of the employers was not given the opportunity to participate in the meetings of the Committee subsequent to 31st May, 1975. The result is that the recommendations made by the Committee which were accepted by the Government were those by a committe which was not constituted and did not function in accordance with Section 9 of the Act read with Rule 12 of the Minimum Wages (Tamil Nadu) Rules, 1953.
7. The next question is, what is the consequence of this position in law? Mr. M.R. Narayanaswamy, learned Counsel for some of the petitioners, contended that the consequence is that the entire notification which was issued by the Government has become vitiated, and, therefore, is liable to be quashed. The learned Government Pleader on the other hand, sought to contend that there had been no failure on the part of the Government, that if a particular member did not participate in the meetings of the committee, the Government could not be blamed and that therefore, the ultimate notification issued by the Government cannot be challenged. This argument is misconceived, in view of the fact that there was no failure on the part of the Personnel Officer for the time being of the Century Flour Mills Ltd., to participate in the meetings after 31st May, 1975, because no notice of any meeting whatever was admittedly sent to such Personnel Officer after 31st May, 1975.
8. Mr. K.V. Sankaran, representing Mr. Ganesan, who appears for the Coimbatore District General Workers Union, represented by its President, impleaded as a party to W.P. No. 3714 of 1976, contended that the recommendations of the Committee are only in the nature of advice given to the Government that the Government are not bound to accept the advice, and that consequently any contravention of Section 9 in the constitution of the Committee or any irregularity in the functioning of the Committee contrary to Rule 12 of the Minimum Wages (Tamil Nadu) Rules referred to already will not in any way vitiate the ultimate notification issued by the Government either fixing the minimum wages or revising the minimum wages already fixed. We are unable to accept this argument. We are of the opinion that any such irregularity in the constitution of the Committee contrary to Section 9 of the Act or in the functioning of the Committee without notice to a member of the Committee will certainly vitiate the recommendation of the Committee and the ultimate order of the Government based on such recommendation. It should not be forgotten that the Legislature has taken very great care in the composition of the Committee, as contemplated by Section 9, by providing that the employers and employees should have equal representation. Once this equality is disturbed, the balance which the Legislature sought to maintain between the employers and employees will be lost, and consequently, the sanctity which is sought to be attached to this equality of membership as between the employers and employees will also be destroyed. In such a situation, the recommendation by the Committee cannot be said to be one as contemplated by the statute and if the Government accept that recommendation and pass an order, the said order also will be vitiated.
9. Mr. K.V. Sankaran, learned Counsel representing the employees, submitted that the decision of the Andhra Pradesh High Court in Tiffin's Barytes Asbestos and Paints Ltd. v. Ministry of Labour and Employment, Government of India, rep. by its Secretary, New Delhi I.L.R. 1973 A.P. 495, the decision of the Orissa High Court in Town Bidi Factory and Ors. v. State of Orissa I.L.R. (1975) Cut. 308 and the decision of this Court in A.S.D. Badsha proprietor, Badhas Snuff Co. v. State of Madras represented by Commissioner of Labour and Director, National Employment Organisation A.I.R. 1963 Mad. 138, have taken the view that the contravention of Section 9 of the Act will vitiate the ultimate notification issued by the Government under Section 5, but that there is a direct decision of the Kerala High Court in P. Gangadharan Pillai v. State of Kerala : (1968)ILLJ390Ker , holding that that will not be the consequence and that the trend of the decisions of the Supreme Court also will lead to that conclusion. However, Mr. Sankaran admitted that there is not a single decision of the Supreme Court directly on the point, namely, that if there is contravention of Section 9 in the composition of the Committee contemplated therein, that will not vitiate the notification issued by the Government under Section 5 of the Act. However, what he contended was that the approach of the Supreme Court in some of the cases relating to the power of the Government to fix minimum wages under Section 5 of the Act would lead to such a conclusion. The learned Counsel drew our attention to the decisions of the Supreme Court in Edward Mills Co., Ltd. Bewar v. State of Ajmer : (1954)IILLJ686SC , Messrs. Bhikusa Yamasa Kshatriya v. Sanganer Akola Taluk Bidi Kamgar Union : (1962)IILLJ736SC , Chandra Bhawan Boarding and Lodging v. State of Mysore : (1970)IILLJ403SC , and State of Rajasthan v. Hariram Nathwani : (1976)ILLJ1SC . We are unable to discern any such trend or approach as contended for by the learned Counsel for the employees, namely, that the approach of the Supreme Court was to ignore all contraventions of the statutory provisions and to uphold the ultimate notification issued by the Government under Section 5 solely on the ground that it was the Government which had to ultimately decide the matter and that the Committees are only fact-finding Committees and their advice and recommendation are not binding on the Government. In view of this, we are of the opinion that these decisions are not of any assistance to decide the present controversy before us.
10. On the other hand, the following observations of the Supreme Court in Bijay Cotton Mills Ltd. v. State of Ajmer : (1955)ILLJ129SC , will show the necessity for the Government complying with the requirements of Section 9 of the Act strictly. In that judgment the Supreme Court observed:
As regards the procedure for the fixing of minimum wages, the 'appropriate Government', has undoubtedly been given very large powers. But it has to take into consideration, before fixing wages, the advice of the Committee if one is appointed, or the representations on its proposals made by persons who are likely to be affected thereby. Consultation with advisory bodies has been made obligatory on all occasions of revision of minimum wages; and Section 8 of the Act provides for the appointment of a Central Advisory Board for the purpose of advising the Central as well as the State Government both in the matter of fixing and revision of minimum wages.
Such Central Advisory body is to act also as a co-ordinating agent for coordinating the work of the different advisory bodies. In the committees or the advisory bodies the employers and the employees have an equal number of representatives and there are certain members besides them who are expected to take a fair and impartial view of the matter. These provisions, in our opinion, constitute an adequate safeguard against any hasty or capricious decision by the appropriate Government.
In our view, the above observations will only indicate that the procedure for the appointment of a committee, constituting adequate safeguards against any hasty or capricious decision by the Government must be strictly followed and complied with.
11. That leaves out only the decision of the Kerala High Court in Gangadharam Pillal v. State of Kerala, : (1968)ILLJ390Ker , already referred to, on which reliance has been placed by the learned Counsel for the employees. That is a decision of a single Judge of that High Court and in paragraph 5 of that judgment, it is stated:
The Advisory Board constituted in the instance case consisted of seventeen representatives each of employers and employees and four Government officials. Among the representatives of the employers, the only one representing the cashew industry was one Sri P.G. Verghese, who died before the Advisory Board formulated its recommendations to the Government (vide Exhibit P5). It was admitted that none was nominated in his place and that the Advisory Board proceeded with its business and sent up its recommendations (Exhibit P5) without the vacancy being filled up. These recommendations were not accepted by the Government, which by its final notification (Exhibit P4) accepted its draft notification.
It is this position which was considered by the learned Judge in paragraph 8 of his judgment, where the learned Judge has stated:
Was there any illegality consequent on the failure to nominate a member to the Advisory Board on the death of Sri P.G. Varghese?--is the next question. There is no doubt that the fixation or revision of minimum wages is to be done in accordance with the provisions of the Act, and that consultation with the Advisory Board as contemplated by Section 9 of the Act is a necessary requirement of such fixation or revision. The Advisory Board with which consultations is effected must have the statutory personnel and composition enjoined by Section 9 of the Act. This, at the material time it did not have in the instant case. But it appears to me that this does not vitiate the ultimate decision of the Government in the Notification, Ext. P4, issued by it. The function of the Advisory Board was purely advisory; the Government was not bound by its advice; the ultimate decision had to be taken by the Government. In this view, I am inclined to think that notwithstanding the defect in the composition of the Advisory Board the notification Ext. P4 is not vitiated by any illegality.
We arc of the opinion that the above observation is not of any assistance whatever to the employees in the present case, for the simple reason that the learned Judge in that case was dealing with a situation where the recommendation of the Advisory Board was not accepted by the Government and the Government took its own decision in fixing the minimum wages. As a matter of fact, the learned Judge himself in paragraph 9 of the judgment has observed:
It may be that if the constitution of the Advisory Board was in total disregard of the provisions of Section 9 and its advice was accepted and acted upon by the Government, the proceedings might become illegal--vide N.K. Jain v. Labour Commissioner, Rajasthan . But such was the position here, and as to this I need not express any opinion.
But, the position that was not before the learned Judge of Kerala High Court who decided the above case is here before us. Therefore, it is unnecessary to express any opinion about the correctness or otherwise of the view taken by the learned Judge of Kerala High Court even with regard to a case where the advice of the committee had not been accepted by the Government. However, even on the basis of the observation of the learned Judge extracted above, it must be held that since the constitution and the functioning of the committee in the present case was not in accordance with the statutory provisions in that behalf, its advice which was accepted by the Government was vitiated, and consequently the notification of the Government has become illegal.
12. We have already referred to the importance which the Legislature has attached to the equality of representation for the employers and employees in the Advisory Committee. When that equality is not available and the balance sought to be maintained by the Legislature is disturbed, that will constitute a serious disregard of the provisions of Section 9 of the Act.
13. Having regard to all the above circumstances, we hold that the impugned notification of the Government is illegal and allow these writ petitions and issue writs of certiorari quashing the said notification. There will be no order as to costs.