Judgment Sachchidanand Jha, J. 1. In these two writ petitions on behalf of North Bihar Chamber of Commerce and Industries which is an association of persons carrying on trade, business or industry, and two of its members who are partners in wholesale and retail cloth business having shops at Muzaffarpur, the petitioners are aggrieved by the revised rate of minimum wages fixed under the Minimum Wages Act, 1948 (in short the Act). Under challenge are the notification dated October 30, 1989 in CWJC No. 580 of 1990, and dated July 19, 1993, in CWJC No. 11130 of 1993, enclosed as Annexure-1 to the writ petitions in both the cases. 2. A brief introduction of the Act so far as relevant for the purpose of these cases may be appropriate at the outset. The Act has been enacted for fixing minimum rates of wages in the scheduled employments specified in the schedule appended to the Act under Sec. 3 which is the charging Section of the Act. The appropriate Government is empowered to fix minimum rates of wages payable to the employees employed in the scheduled employment, review at intervals not exceeding five years the rates of wages so fixed and revise the same if necessary. Sec. 4 provides that minimum rates may; consist of (i) a basic rate of wages and special allowance at a rate to be adjusted at such intervals and at such time the appropriate Government may direct in accord with, as nearly as practicable, variation in the cost of living index applicable to the workers, that is, the cost of living allowance; or (ii) a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concessional rates; or (iii) an all-inclusive rate comprising of the basic rate, cost of living allowance and the cash value of the concessions, if any. It may be mentioned that in the present case the rates of wages have been fixed under Clause (iii) i.e. all-inclusive rate which includes the cost of living allowance. The procedure for fixing and/or revising the minimum wages is laid down in Sec. 5 of the Act. It may be mentioned that in the present case the rates of wages have been fixed under Clause (iii) i.e. all-inclusive rate which includes the cost of living allowance. The procedure for fixing and/or revising the minimum wages is laid down in Sec. 5 of the Act. Sec. 5 provides that in fixing or revising the minimum wages the Government may either appoint committees and sub-committees as it considers necessary to hold inquiries and advise it in respect of such fixation or revision, or publish proposals in the Official Gazette giving at least two months time for receipt of representations from the persons likely to be affected thereby. After considering the advice of the committee or the representations received, as the case may be, the Government may fix or revise the minimum wages by notification in the Official Gazette. In case of revision, however the Government is required to consult the Advisory Board. Sec. 7 provides for an Advisory Board to co-ordinate the work of the committee and sub-committees appointed under Sec. 5, and to advise the Government generally in the matter of fixing or revising the minimum wages. Sec. 9 provides for composition of the committees, sub-committees and the Advisory Board. I shall refer to some of these provisions later again in the judgment. 3. The case of the petitioners as presented at the stage of hearing is that where wages are proposed to be revised in accordance with Clause (b) of Sub-section (1) of Sec. 5 that is, after publication of the proposal, giving opportunity to the persons affected to file representations against such proposal, as was done in this case, consultation with the Advisory Board is mandatory. Such consultation was, in fact, made but as the Advisory Board was not properly constituted the impugned notifications, based as they are on the advice of the Advisory Board, cannot be said to be in accordance with law. Secondly, though the Advisory Board recommended neutralization of the price hike by 100% the revision in wages was more than 100%. Thirdly, the rate was fixed on the basis of population, which has no rational basis. In CWJC No. 11130/93 the further case of the petitioners is that the proceedings of the Advisory Board were held without the prescribed quorum. Secondly, though the Advisory Board recommended neutralization of the price hike by 100% the revision in wages was more than 100%. Thirdly, the rate was fixed on the basis of population, which has no rational basis. In CWJC No. 11130/93 the further case of the petitioners is that the proceedings of the Advisory Board were held without the prescribed quorum. Besides, persons who were not members of the Advisory Board were allowed to participate in the proceedings rendering the advice of the Board to be illegal. 4. Apropos the first contention, Shri J. Krishna, learned counsel for the petitioners, submitted that under Sec. 7 of the Act the State Government is required to "appoint" an Advisory Board. But in the instant case except the Secretary, Labour & Employment Department and the Labour Commissioner, Bihar, appointed as Chairman and Secretary-cum-Convenor respectively, and one member Kshemendra Kumar Singh, all other members in the category of Independent Members are representatives of Government departments or institutions such as Rural Development Department, Irrigation Department, Forest and Environment Department, Road Construction Department, 20 Point Programme Department, A.N. Sinha Institute of Social Sciences, Patna, Xavier Labour Relations Institute, Jamshedpur, and Cabinet (Vigilance) Department (Technical Examiner Cell). According to the counsel, the appointment or nomination should be by name or designation. Authorising the concerned department or institute to nominate the representative cannot be regarded as appointment by State Government. This amounts to sub-delegation of power. The State Government having been delegated the power to appoint the Advisory Board i.e. members of the Advisory Board and thus a delegate of the Legislature, it cannot delegate its power to. another authority in the absence of any provision in that regard. The sub-delegation, therefore, is not permissible. Further, the Government officials cannot be regarded as independent members. There are sectors in which the Government has interest of its own and, therefore, appointment of the Government officials as members in the category of Independent Members was not correct. Particular mention was made of the inclusion of the Managing Director, Bihar State Forest Development Corporation in the employers category in relation to the employment in Forests services. It was pointed out that a representative of the Forest and Environment Department figures as a member in the Independent Members category. Particular mention was made of the inclusion of the Managing Director, Bihar State Forest Development Corporation in the employers category in relation to the employment in Forests services. It was pointed out that a representative of the Forest and Environment Department figures as a member in the Independent Members category. It was submitted that Sec. 9 of the Act postulates that the members representing the employers and employees categories should be equal in number but by reason of the inclusion of Managing Director of the Bihar State Forest Development Corporation in the employers category the members representing the employees were less than members representing the employers. 5. In order to appreciate the aforesaid contentions it would be proper to notice again Secs. 5 and 9 of the Act, already briefly referred to above: "5. Procedure for fixing and revising minimum wages. - (1) In fixing minimum rates of wages in respect of any schedule employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate Government shall- (a) appoint as many committees and sub-committees, at it considers necessary to hold inquiries and advise it in respect of such fixation or revision, as the case my 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 proposal will be taken into consideration. (2) After considering the advice of the committees or committee appointed under Clause (a) of Sub-sec. (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: Provided that where the appropriate Government proposes to revise the minimum rates of wages by the mode specified in Clause (b) of Sub-sec. (1), the appropriate Government shall consult the Advisory Board also. 9. (1), the appropriate Government shall consult the Advisory Board also. 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 the scheduled employment, 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." 6. In view of the proviso appended to Sub-sec. (2) of Sec. 5 there is no doubt that where the Government proposes to revised the minimum wages by following the procedure laid down in Sec. 5 (1)(b) i.e. by publishing the proposals inviting representation from the persons affected thereby, consultation with the Advisory Board is mandatory. The point for consideration is whether the ultimate decision of the State Government under Sec. 5(2) read with Sec. 3 is vitiated on account of any defect in the constitution of Managing Committee. The point is not res Integra. 7. In State of Andhra Pradesh V/s. Narayana Velur Beedi Manufacturing Factory and Ors., AIR 1973 SC 1307 : 1973 (4) SCC 178 : 1973-I-LLJ-476, the Court observed at p. 480 of LLJ: "In our judgment the view which has prevailed with the majority of the High Courts must be sustained. The committee or the Advisory Board can only tender advice which is not binding on the Government while fixing the minimum wages or revising the same as the case may be. Of course 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 not bound to do so." In State of Rajasthan and Anr. V/s. Shri Han. Ram Nathwani and Ors., AIR 1976 SC 277 : 1975 (2) SCC 517 : 1976-I-LLJ-1, the Advisory Board had appointed a sub-committee consisting or members who were not members of the Board. The point that arose for consideration was whether the report of the Advisory Board was vitiated. It was answered in these words: "Surely the Advisory Board has no power to appoint a 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. The point that arose for consideration was whether the report of the Advisory Board was vitiated. It was answered in these words: "Surely the Advisory Board has no power to appoint a 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 July 31, 1965 based upon the report of the Advisory Board which in its turn had taken into consideration not only the report of the committee appointed by the Government but also that of the sub-committee appointed by the Board is bad ? On a careful consideration of the matter we give our answer in the negative. The irregularity, even characterising it as illegality, committed by the Advisory Board in taking into consideration the report of the sub-committee was not such as to nullify its recommendation contained in its report, or, in any event, the final decision of the Government contained in the impugned notification." 8. If, as held by the Apex Court, the advice of the Advisory Board is not binding on the Government it would logically follow that even if there be any defect in the composition of the Advisory Board it would not per se vitiate the advice or in any event, the ultimate decision of the Government unless it is shown that such defect or illegality has resulted in any prejudice to the party such as where the interest of a particular group of employer or employees is not represented and taken into account. However it is relevant to mention in this connection that though Sec. 9 of the Act contemplates equal representation proviso to Rule 14 of the Bihar Minimum Wages Rules, 1951 permits the Advisory Board to conduct its business, in an adjourned meeting, within one week of the date of the original meeting, irrespective of the number or category of members. That is to say, in an adjourned meeting even though the number of the representatives of the employers or the employees is less the meeting can be validly held and business can be transacted. That is to say, in an adjourned meeting even though the number of the representatives of the employers or the employees is less the meeting can be validly held and business can be transacted. This shows that the provision is directory and if that is so, unless prejudice is shown to have been caused, no interference may be called for. As no such case has been pleaded nor any argument made at the Bar it is not necessary 1 to further dwell upon the theory of prejudice in the present case. 9. The argument of the counsel, as indicated above, was that the Government. Officials cannot be regarded as independent members and, therefore, their participation in the proceedings of the Advisory Board vitiated the advice of the Board. This argument has been noticed only to be rejected in view of the aforequoted two decisions of the Apex Court. In State of Andhra Pradesh V/s. Narayana Velur Beedi Manufacturing Factory and Ors. (supra) the Court observed in no uncertain terms that language of Sec. 9. does not give any indication whatsoever that" the persons in employment of the Government would be excluded from the category of independent persons. The words "independent persons" have been used in. contradistinction to representatives of" employers and employees. The Act contemplates that apart from the representatives of the employers and the employees there should be persons who should be independent of them. It does not follow that the persons in service or employment of the Government were meant to be excluded and cannot be regarded as independent persons vis-a-vis the representatives of the employers and the employees. 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 Sec. 9 to the appropriate Government. The Court observed that in certain circumstances persons who are in the service of the Government may cease to have independent character. But it would depend on the facts of each particular case whether the persons who have been appointed from out of the class of independent members can be regarded as independent or not. The mere fact that they happen to be Government officials or Government servants will not divest them of the character of independent persons. But it would depend on the facts of each particular case whether the persons who have been appointed from out of the class of independent members can be regarded as independent or not. The mere fact that they happen to be Government officials or Government servants will not divest them of the character of independent persons. Summing up the discussion the Court observed: "We are not impressed with the reasoning adopted that a Government official will have 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 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. Government officials are responsible persons and it cannot be said that they are not capable of taking a detached and impartial view." The above decision was cited with approval in State of Rajasthan V/s. Hari Ram Nathwani (supra). 10 In Ministry of Labour and Rehabilitation V/s. Tiffins Barytes Asbestos & Paints Ltd., AIR 1985 SC 1391 : 1985 (3) SCC 594 : 1985-II- LLJ-412 the parameters of judicial review of the revision of minimum wages under the Minimum Wages Act were laid down as under: "We also wish to emphasise that notifications fixing minimum wages are not to be lightly interfered with under Article 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 Article 226 of the Constitution except on the most substantial grounds. The legislation is a social welfare legislation undertaken to further the directive principle of State policy and action taken pursuant to it cannot be struck down on mere technicalities." 11. In view of the above decision the point which arises for consideration is whether the grounds urged to challenge the constitution of the Advisory Board can be called "substantial" grounds on which the decision of the State Government to revise the minimum wages should be interfered with under Article 226 of the Constitution. In view of the above decision the point which arises for consideration is whether the grounds urged to challenge the constitution of the Advisory Board can be called "substantial" grounds on which the decision of the State Government to revise the minimum wages should be interfered with under Article 226 of the Constitution. In my opinion, the grounds are peripheral. Unless prejudice is shown to be caused the impugned notification cannot be interfered with. In a case falling under Sec. 5(1) (b) of the Act the Government is required to consult the Advisory Board but as the advice of the Advisory Board is not binding on the Government any irregularity, even illegality, in the constitution of the Advisory Board per se would not vitiate the decision of the Government. 12. Counsel for the petitioners placed reliance on a decision of a learned single Judge of this Court in Eastern Bihar Chamber of Commerce and Industries, Bhagalpur and Ors. V/s. State of Bihar and Anr., 1988 PLJR 153. The notification fixing minimum wage was challenged in that case, inter alia, on the ground that the number of independent members was in excess of one-third of the total members making the constitution violative of Sec. 9 of the Act. The learned Judge held that the constitution of the Board was contrary to the provisions of Sec. 9 and as consultation with the Board in respect of revision of wages was mandatory, and consultation means effective consultation with a properly constituted Board, the notification issued pursuant to such consultation "must necessarily be held to be illegal". 13. I am afraid, the observation cannot be said to be in accordance with law. It is true that the impugned notification fixing the rates of minimum wages was challenged on the ground of defect in the constitution of the Advisory Board but the question as to nature of advice of the Advisory Board was not considered. No argument seems to have been made in this regard. The decisions of the Supreme Court referred to above were not cited and without any discussion, if I may respectfully say so, the learned Judge arrived at the conclusion that the notification "necessarily" was illegal. No argument seems to have been made in this regard. The decisions of the Supreme Court referred to above were not cited and without any discussion, if I may respectfully say so, the learned Judge arrived at the conclusion that the notification "necessarily" was illegal. The Supreme Court in State of Rajasthan v. Sri Nan Ram Nathwani (supra) has said in clear terms that any illegality in the constitution of the Advisory Board does not "nullify its recommendation contained in its report, or, in any event, the final decision of the Government". That being the legal position, the decision relied upon by the counsel is of no avail to the petitioners. 14. I will now consider the second contention that the impugned revision was in excess of the advice of the Advisory Board. The case of the petitioners is that the Advisory Board vide minutes of its proceeding dated September 5, 1989 (in CWJC No. 580 of 1990) had suggested 100% neutralization of the price rise as per the consumer price index but the revision under the impugned notifications is more than 100%. In paragraph 15 of the writ petition in CWJC No. 580/90 the petitioners have given calculation of rates which should have been fixed after providing (A) -------------------------------------------------------------------------------- Category Areas having population upto 30000 Areas having population above 30000 but less than 1 lac Areas having population above one lac and less than 2 lacs Areas having population above 2 lacs -------------------------------------------------------------------------------- 1 2 3 4 5 -------------------------------------------------------------------------------- Unskilled 251.68 (100) 276.84 (110) 314.60 (125) 352.35 (140) Semiskilled 276.84 (110) 314.60 (125) 352.35 (140) 402.68 (160) Skilled 314.60 (125) 352.35 (140) 402.68 (160) 503.36 (200) -------------------------------------------------------------------------------- Figures within brackets indicate minimum wages at 823 points Consumer Price Index (1960-100) as under: (B) -------------------------------------------------------------------------------- Category Areas having population upto 30000 Areas having population above 30000 but less than 1 lac Areas having population above one lac and less than 2 lacs Areas having population above 2 lacs -------------------------------------------------------------------------------- 1 2 3 4 5 -------------------------------------------------------------------------------- Unskilled 549.00 p.m 589/p.m. 629/p.m. 668.50 p.m. Semiskilled 589/p.m. 629/p.m. 668.50 p.m. 707/p.m. Skilled 629/p.m. 660.50 p.m. 707/p.m 761/p.m. -------------------------------------------------------------------------------- 15. The contention of the petitioners is based on misreading of the recommendation of the Advisory Board. The contention of the petitioners is based on misreading of the recommendation of the Advisory Board. What the Advisory Board had recommended was that the proposed rates notified vide S.O. 642 dated May 3, 1989, had been worked out on the basis of All India Consumers Price Index for the latter half of 1987 (July-December) viz. 744 points but as there had been further increase in the consumer price index during the intervening period, the increase from the date of the publication be hundred per cent neutralized by increasing the revised rates by the percentage of increase in the price level. The recommendation in regard to the 100% utilisation of the increase in the consumers price index was thus intended to wipe out the increase in the consumer price index during the intervening period. The recommendation was not to treat the existing rates vide notification dated June 25, 1975 as the basis. 16. From the records it appears, and there is no dispute at the Bar in this regard, that minimum wages earlier fixed under notification dated June 17, 1975 was on the basis of All India Consumer-Price Index of 327 points. As the consumer price index rose to 744 points during the latter half of the year 1987 (July -December) the rates proposed vide notification dated May 3, 1989 were worked out on that basis but during the intervening period there had been further increase in the price index had risen to 823 points during the first half of year 1989 (January - June). If the wages had been fixed in the year 1989 treating the consumer price index of 1987 as the basis the rates should have been unrealistic and contrary to the concept of all-inclusive rates. As indicated above, the minimum wages in the instant case are all-inclusive rates contemplated under Clause (iii) of Sec. 4(1) of the Act comprising of, besides basic rate etc., the cost of living allowances. The rates, therefore, had to be in accordance with the consumer price index. The recommendation of the Advisory Board simply being to further revise the rates in accordance with the further rise in the consumers price index the argument that such increase should have been worked out on the basis of 1975 rates or the consumers price index of that year providing for not more than 100% increase therein, has no substance. The recommendation of the Advisory Board simply being to further revise the rates in accordance with the further rise in the consumers price index the argument that such increase should have been worked out on the basis of 1975 rates or the consumers price index of that year providing for not more than 100% increase therein, has no substance. No calculation mistake in the increase otherwise was pointed out to us at the time of hearing of the case. The contention of the petitioners in this regard is accordingly rejected. 17. Coming to the third contention that the wages should have been fixed on the basis of the paying capacity and not on population of the area, it was submitted that the paying capacity of customers purchasing goods from D. Lal & Sons (a premier stationery shop of Patna town) is not same as one purchasing from smaller shops. Therefore, fixing the same wages for the employees of both the shops is not only unrealistic but also unscientific. 18. As noticed from the chart in paragraph 15 above, the wages have been fixed categorising different areas on the basis of population viz., areas having population of less than 30,000, above 30,000 but less than one lac, above one lac but below 2 lacs and above 2 lacs. This was so even in the earlier notification dated June 17, 1975. Apparently, the petitioners never challenged this at any stage. It is doubtful if having acquiesced in the rates fixed on the basis of population they can be permitted to challenge the same. If the petitioners thought that categorisation of the places on the basis of population was illegal they should have challenged the rates fixed earlier in 1975. Even conceding the right to challenge the basis at this stage it would appear that wages have little to do with the paying capacity of the customers. On the other hand, population of the area may be a safer basis for fixing the wages. Ordinarily areas having small population, say, less than 30,000, are less costly than, say urban areas having population in lacs. A similar provision relating to levy of entertainment tax under the Bihar Entertainment Tax Act, 1948 on the basis of location and population, among other factors, was upheld by this Court in Syed Jamilur Rahman V/s. State of Bihar, 1986 PLJR 562. A similar provision relating to levy of entertainment tax under the Bihar Entertainment Tax Act, 1948 on the basis of location and population, among other factors, was upheld by this Court in Syed Jamilur Rahman V/s. State of Bihar, 1986 PLJR 562. Sec. 3 of the said Act provides for levy of entertainment Tax. By amendment, the concept of consolidated payment of tax was incorporated under which the rates of tax are to be fixed on the basis of place of entertainment, taking into account the type of place, its location, population, industrial growth and type of market. This Court held that categorisation of places and fixation of different rates was rational and did not warrant any interference by the High Court. When the matter went up in appeal, the Supreme Court too did not find any error in the provision, but as the rates had been fixed only on the basis of population without taking into account other factors it directed the Government to re-categorise the places and fix the rates. Thus, though in a somewhat different context, the population of the place has been upheld as a rational basis for fixing the rates. Drawing analogy from the said decision I thus do not find any error in fixing the wages on the basis of population, which is not a new provision. 19. So far as additional point urged in CWJC No. 11130/93 regarding quorum is concerned, Rule 14 of the Bihar Minimum Wages Rules, 1951, no doubt, prohibits any business from being transacted at any meeting unless at least one-third of members and at least one representative of the employers or employees each are present but, as noticed above, proviso to said Rule permits business being transacted at an adjourned meeting within seven days of the original meeting irrespective of the number and class of members present. Whether the meeting in question was an adjourned meeting or not has not been stated. If the petitioners were to take advantage of the provisions of Rule 14 they were required to state clearly that the meeting was not an adjourned meeting within the meaning of proviso. The foundational facts being absent, it is not possible to hold on omnibus averments that the proceeding was held without sufficient quorum. I, thus, do not find any substance in the fourth contention either which is accordingly rejected. 20. The foundational facts being absent, it is not possible to hold on omnibus averments that the proceeding was held without sufficient quorum. I, thus, do not find any substance in the fourth contention either which is accordingly rejected. 20. Before I conclude, I may observe that the real grievance of the petitioners seems to emanate from the quantum of increase in the rates fixed compared to the existing wages. But it should be kept in mind that the wages had been fixed 15 years ago in 1975, and though Sec. 3(1) (b) provides for review and revision, if necessary, at intervals not exceeding five years, the revision was effected only in the year 1989. Considering the substantial hike in the consumers price index during this period if the wages have been increased commensurate with the price index on the basis of the index point about which there is no dispute, I do not think the petitioners can legitimately make a grievance of the revision by the impugned notification. 21. In the result, I do not find any merit in these writ petitions which are accordingly . dismissed, but without any order as to costs. P.K.Sinha, J. 22 I agree.