Aftab Alam, J.:— This writ petition has been filed on behalf of a printing press through its proprietor who has appeared in this case in person. The writ petition seeks to challenge the notification, dated November 26, 1981, issued by the appropriate Government in exercise of powers under Sub-sec. (1) of S. 3 of the Minimum Wages Act, 1948 (hereinafter referred to as the Act), revising the minimum rates of wages for different categories of employees employed in a printing press (a copy of the impugned notification is at Annexure 1). In the alternative a direction is sought that the amount paid by the petitioner to its employees as “contract bonus” may also be taken in account for determining the wages payable by the petitioner to its employees in terms of the notification. In other words, the petitioner expresses its willingness to pay to its employees wages fixed under the impugned notification after deducting the amount of “contract bonus” paid to them under an agreement entered into between the petitioner and the workers. In this regard, a prayer is made to quash the communication, dated May 4, 1982 and May 15, 1982 (copies at Annexures 8 and 9), where by the Inspector of Factories, respondent 6, refused to accept the petitioner's offer and directed him to pay to its employees the arrears of their wages in accordance with the notification and without any deductions on account of “contract bonus” payable plunder the agreement.
2. At this stage it may be noted that the impugned notification, dated November 26, 1981, is no longer in operation and the minimum rates of wages for the employees of printing press have thereafter been revised at least three times and the minimum rates of wages for the employees of printing press currently in force were revised by notification, dated July 19, 1993. The subsequent revisions of the wages however do not make this case infructuous as the rights and liabilities of the petitioner and its employees during the period the notification, dated November 26, 1981, was in operation before its revision by the subsequent notification would still be determined by the 1981 notification. Hence, we proceed to examine the submissions advanced on behalf of the petitioner and to dispose of this application on merits.
3. The material facts are very brief and without any controversy. The minimum rates of wages for the employees of printing press was earlier revised by notification, dated September 18, 1976, and it was this notification which was in force before the issuance of the impugned notification, dated November 26, 1981. It is an admitted position that for revising the minimum rates of wages the appropriate Government took recourse to the procedure as provided under Cl. (b) of Sub-sec. (1) of S. 5 of the Act. In this regard the proposals to revise the minimum rates of wages for the employees of printing press were published in the Bihar Gazette (Extraordinary) on March 19, 1981 (copy at Annexure 2), inviting objection(s) or suggestion(s) from any person within the specified time. It appears that in response to the proposals some representations were filed for and on behalf of both the employers in relation to printing press and the workers employed there. As required by the proviso to S. 5(2) of the Act, the proposals were also sent to the Advisory Board which appears to have made its recommendations on a consideration of the matter, as evidence from minutes of its meeting held on August 11 and 12, 1981. A copy of the minutes is made Annexure 3(a) to the writ petition. Following this the appropriate Government issued the notification, dated November 26, 1981, under S. 3(1) of the Act. It is this notification which comes under challenge in this application.
4. At this stage it may also be noted that the Advisory Board, to which the proposals were sent for consultation, was constituted by a notification, dated August 10, 1978, published in the gazette on September 23, 1978 (Copy at Annexure 3). The Advisory Board constituted under this notification consisted of a total number of 29 persons, out of which 9 persons, were described as the employers' representatives” and an equal number as the “employees' representatives”. In addition, there were two persons listed under the heading “independent members” and 9 persons listed as “ex officio members.”
5. Although this fact has not been stated in the writ petition but if appears from an earlier decision of this Court in the case of Eastern Bihar Chambers of Commerce and Ind. v. State of Bihar [1988 P.L.J.R 153], that this notification was modified by a subsequent notification, dated January 24, 1979, whereby and whereunder the numbers of employees' and employers' representatives were increased to 10 each. Thus the total number of members in the Advisory Board became 31, out of which 2 were listed as ‘independent members’ and 9 were listed as ‘ex officio members.’
6. Sri R.K Lal, the proprietor of the petitioner-printing press, appearing in person, submitted that in issuing the impugned notification the Government purported to follow the provisions of S. 5(1)(b) of the Act, but the Advisory Board to which the proposals were sent for consultation was not constituted in terms of S. 9 of the Act. It was submitted that the proviso to Sub-sec. (2) of S. 5 envisaged consultation with a validly constituted Advisory Board; in this case, the Advisory Board itself was not validly constituted and hence there was no consultation in the eye of law. It, therefore, followed that the impugned notification was issued in breach of the proviso to Sub-sec. (2) of S. 5 which cast an obligation upon the appropriate Governments, in case it adopted the mode specified in S. 5(1)(b), to revise the rates of wages only after consultation with the Advisory Board.
7. Sri Lal enumerated the following reasons in support of his submission that the Advisory Board was not constituted in accordance with S. 9 of the Act:
(i) The number of ‘independent members,’ was more than ⅓rd of the total number of members of the Board.
(ii) The persons listed under the headings ‘independent members’ and ‘ex officio members’ were in fact Government officers representing different departments of the Government such as the Irrigation Department, Public Works Department, Industries Department, etc. Being Government officer, according to Sri Das, they were not independent members.
(iii) At serial No. 5, in the list of employers' representatives, was one Sri Bijoyendra Yadav who was a member of Janta Party and had no other credential to represent the employers
(iv) Similarly at serial Nos. 3 and 5, in the list of the employees' representatives, were two members of the legislative assembly who could not represent the employees on the Advisory Board
8. The objections listed at serial Nos. 2 to 4 do not have any substance and are completely answered by two Supreme Court decisions in (i) State of Andhra Pradesh v. Narayan Velpur Beedi Manufacturing Factory [1973 (1) L.L.N 418] and (ii) Government of India, Ministry of Labour and Rehabilitation v. Tiffin's B.A&P., Ltd. [1985 (2) L.L.N 611]. In the Beedi Manufacturing Barytes Asbestos and Paints case (vide supra), the Supreme Court observed as follows, in Para. 7, at page 422 of 1973 (1) L.L.N:
“….The words ‘independent persons’ in S. 9 have been used in contradistinction to representatives of employers and employees. In other words, apart from the representatives of employees and employers there should be persons who should be independent of them. It does not follow that persons in the service or employment of the Government were meant to be excluded from being members of Advisory Committee or Board and they cannot be regarded as independent persons vis-a-vis the representatives of the employers and employees. Apart from this the presence of high Government officials who may have actual 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 Government.”
This takes care of the objection at serial No. 2. As regards the objections at serial Nos. 3 and 4 the Supreme Court in the case of Ministry of Labour and Rehabilitation (vide supra), held as follows, in Para. 3, at pages 614 and 615:
“… For the purpose of appointing the committee to represent the employers in a scheduled employment, it was not necessary that the person appointed should be engaged for profit in the particular employment. It is enough if a nexus exists between the persons so appointed to represent the employers in the particular employment and the particular employment concerned…. There was no material before the High Court nor was the High Court in a position to say that the persons appointed to the committee to represent the employers were entirely unconnected with or ignorant of the particular employments. We fail to understand how by merely looking at their names and the positions occupied by them, the High Court was able to say that they were incompetent to represent the employers in the particular employments.…”
This takes me to consider the objection at serial No. 1 above. This requires some consideration as the petitioner's contention is directly supported by the decision of a learned Single Judge of this Court in the case of Eastern Bihar Chambers and Ind. v. State of Bihar (vide supra). In that case the notification, dated November 26, 1981, fixing the minimum rates of wages for employees in shops and establishments dealing in cloth either in wholesale or retail trade was challenged and it was the same Advisory Board which came in for consideration while examining the validity of the notification. As noted above, in the writ petition it is stated that in terms of the notification, dated August 10, 1978, there were 11 independent and ex officio members in the Advisory Board consisting of 29 members. In that decision, however, it was noted that by a subsequent notification, dated January 24, 1979, the number of employers' and employees' representatives was increased to 10 each and thus the total number of members in the Advisory Board had gone up to 31 out of which 11 were ex officio and independent members. In that decision it was held, and in my opinion rightly, that the 9 ex officio members must also be held to be independent members as S. 9 of the Act did not provide for any “ex officio members” were also taken to be “independent members” the Constitution of the Advisory Board could not be upheld. Taking the ex officio members as independent members the total number of independent members would come to 11 out of 31 which is evidently in excess of ⅓rd of the total number of members. That being the position in the aforesaid case, a learned Single Judge of this Court held that the constitution of the Board was contrary to the provisions of S. 9 of the Act. It will be useful here to reproduce the relevant passage from Para. 16 of the aforesaid judgment:
“Plainly enough, the constitution of the Board is contrary to the provision of S. 9 of the said Act. It is significant to note that a statutory mandate has been issued to the effect that a number of representatives of the independent persons shall not exceed ⅓ of its total members. The independent representatives being eleven in number, their number certainly exceeds ⅓ of the total number of the representatives. The very fact that the statute has been couched in a negative language, is clearly indicative of the fact that the said provision is a mandatory one. In view of the fact that the number of independent representatives in the Advisory Board exceeded ⅓ of the total number of representatives, in my opinion, the constitution thereof was illegal. As has been seen hereinbefore that in terms of Sub-sec. (2) of S. 5 of the said Act, consultation with the Advisory Board in respect of the revision of the wages in mandatory one. ‘Consultation’ with the Advisory Board must necessarily mean “effective consultation” with a properly constituted Board. As the Board itself was not properly constituted, the notification which was issued pursuant thereto must necessarily be held to be illegal.”
9. From the passage quoted above it is evident that the use of the negative form of language was the sole ground for holding the provision relating to numbers to be mandatory. This led to the-finding that the Advisory Board was not validly constituted and the drastic consequence was that the notification fixing the minimum rates of wages had to be struck down. With respect to the learned Single Judge I find myself unable to follow the reasoning and to strike down the impugned notification on this ground which appears to me to be too thin and tenuous.
10. At this stage it will be useful to take a look at S. 9 of the Act which reads as under:
Section 9. Composition of Committees, etc.— “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 me scheduled employments, who shall be equal in numbers; 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.”
11. It is indeed true that the use of a negative form of language usually connotes command but exceptions to this principle are also not unknown. It is to be noted that in the case of Bombay Union of Journalist v. State of Bombay [A.I.R 1964 S.C 1617], the Supreme Court held that the provisions contained in Cl. (c) of S. 25-F and the proviso to S. 33(2)(b), of the Industrial Disputes Act though worded in a negative form were not mandatory or imperative. The Supreme Court in the aforesaid decision clearly pointed out that though the use of negative words was usually indicative of mandatory nature of the provisions this principle like any other rule was subordinate to the context and the object intended to be achieved by the particular provisions.
12. At this stage it will not be out of place to refer to the note of caution sounded by the Supreme Court in the case of Ministry of Labour and Rehabilitation [1985 (2) L.L.N 611] (vide supra), where it was observed as follows, in Para. 3, at page 615:
“…We also wish to emphasis that notification fixing minimum wages are not to be lightly interfered with under Art. 226 of the Constitution on the ground of some irregularities in the constitution of the committee or in the procedure adopted by the committee. It must be remembered that the committee acts only as a recommendatory body and the final notification fixing minimum wages has to be made by the Government. A notification fixing minimum wages, in a country where wages are already minimal, should not be interfered with under Art. 226 of the Constitution except on the most substantial of grounds. The legislation is a social welfare legislation undertaken to further the Directive Principles of State Policy and action taken pursuant to it cannot be struck down on mere technicalities.”
13. I am, therefore, of the opinion, that presence of 11 independent members in an Advisory Board consisting of 31 members was at the worst an irregularity which would not affect the recommendation of the Advisory Board, much less the final notification issued by the Government in terms of S. 3(1) of the Act. In my considered opinion the case of Eastern Bihar Chambers of Commerce and Ind. (vide supra), was wrongly decided and does not lay down the correct law.
14. This, however, should not be construed to give licence to the Government to mindlessly constitute the Advisory Board deviating from the conditions prescribed in S. 9 of the Act. The Government would be well advised to have only one list of independent members and not to segregate them as independent members and ex officio members. In fact there is no category of ex officio members in the statutory provisions. The total number of independent members should not also exceed ⅓ of the total number of members in the Advisory Board as provided in S. 9 of the Act.
15. Sri Lal next contended that the basic wages fixed under the impugned notification were illegal, excessive and without any rationale. The submission was based on a comparison of the wages fixed under the impugned notification, dated November 26, 1981, and the wages said to have been fixed in the year 1960 when the consumer price index was 100. It was submitted that the wage of Rs. 45 per month fixed in 1960 when the consumer price index was at 100 could not be increased to more than Rs. 191.25 per month in 1981 when the consumer price inde stood at 425 as mentioned in the impugned notification itself. The submission is based on simple arithmetical calculation that in case wage “x” was fixed when the consumer price index was at 100 points, the revised wage at consumer price indeed 425 could be no more than 425*x/100. It is further stated that in the notification, dated March 9, 1991, containing the proposals for revision of wages, the proposed revised wages were within this limit but in the final notification the wages in respect of some categories of employees were further increased and were fixed above the aforesaid limit. In my opinion the submission is wholly devoid of any substance. The plain language of Ss. 3(1)(b) and 5 of the Act does not impose any restriction upon the appropriate Government that the revision of wages must be only to the extent of increase in the consumer price index. Neither is there any restriction that the minimum wages finally fixed under S. 3(1)(b) read with S. 5 of the Act must not exceed the proposals made in terms of S. 3(1)(b). Otherwise the provisions of issuing a proposal for revision inviting objections and suggestions and consulting the Advisory Board would become meaningless. I, therefore, see no substance in Sri Lal's contention that the basic wages fixed under the impugned notification were illegal, unreasonable and excessive and without any rationale.
16. Sri Lal then submitted that the provision relating to V.D.A the rate of 4 paise per point per day in case of any increase in the consumer price index beyond 425 was unsutainable in law as the V.D.A at the rate of 4 paise per point per day amounted to more than 100 per cent neutralisation. A chart in this regard has been provided in Annexure 10 to the supplementary affidavit filed on behalf of the petitioner. In this chart it has been shown that the V.D.A at the rate of 4 paise per point per day will amount to 184.33 per cent neutralisation in the case of an employee getting a monthly salary of Rs. 240; in the case of an employee getting a monthly salary of Rs. 360 per month the rate of neutralisation will be reduced to 123.07; and in the case of Manager whose monthly salary has been fixed at Rs. 450, the neutralisation will be just equal to the rise in the consumer price index. Thus on the petitioner's own showing the V.D.A fixed in the case of the Manager (the highest paid employee in terms of the impugned notification) would be legal and valid but would become invalid in cases of employees getting lower wages. In other words, if the petitioner's submissions are accepted it would lead to the anomalous position that the V.D.A fixed in the case of the Manager would be left uninterfered with but the V.D.A payable to employees getting lower salaries would have to be struck down as illegal and untenable. It is well established that those who are hurt most badly by inflation and price rise are the lower paid employees and it is they who deserve utmost protection against increase in the consumer price index. For this reason, I am not inclined to interfere with the V.D.A fixed under the impugned notification.
17. Sri Lal finally submitted that in any event, contract bonus paid by the petitioner to its employees in terms of a conciliation agreement was clearly covered by the definition of wages as contained in S. 2(h) of the Act and the petititoner was, therefore, entitled to take that amount into account as part of the minimum wages payable under the impugned notification. From the portion of the conciliation agreement, quoted in the writ petition, it appears that the contract bonus was agreed to be paid every year in place of bonus payable under the Payment of Bonus Act, 1965, and not in addition thereto.
18. In my opinion the contention raised by Sri Lal is squarely covered by a decision of the Supreme Court in the case of Manganese Ore (India), Ltd. v. Chandi Lal Sahu [1991 (1) L.L.N 304]. In this case the Supreme Court rejected a similar contention raised in respect of attendance bonus, holding that the attendance bonus was only an incentive and it could not be treated as part of the minimum wages fixed under the Act.
19. For the reasons stated above, I see no merit in this application. In the result, this application is dismissed. No order as to costs.
20. B.N Agarwal, J.:— I agree.