Consultation with the Advisory Board is mandatory for fixing minimum wages under the Minimum Wages Act, 1948, and non-consultation renders the notification fixing minimum wages invalid.

( 1 ) NOTIFICATION dated 4th February, 1992 (Annexure 1 to the writ petition) issued under Section 3 of the Minimum Wages Act. 1948, fixing minimum rate of wages in respect of the employees employed in the units manufacturing miniature bulbs and glass products except optical lenses and glass bangles making industry in U. P. , is the subject-matter of challenge in the present writ petition,

( 2 ) MR. J. N. Tiwari, learned counsel appearing with Mr. Rakesh Tiwari, learned counsel for the petitioner contends that the petitioner is not a manufacturing unit and it does not manufacture any glass product, therefore, it is not covered by the said notification. Secondly he contends that life of the Advisory Board constituted under Section 5 of the Minimum Wages Act. 1948 (hereinafter called as the said Act) having expired on 15. 10. 1990 and no Board having been constituted thereafter, the notification is void and is a nullity since it has been issued without consulting the Advisory Board. His third contention was that no opportunity of hearing was given to the petitioner before fixing the rate of wages. He fourthly contends that alternatively even if the Board is constituted, the same does not include any representative of the employer. He contends fifthly that in the rates fixed 100% neutralisation of dearness allowance has been prescribed which is not permissible under the law. His sixth contention was that while fixing the rate of wages, it is not permissible to determine or lay down any condition of service. His last contention was that instead of fixing the rate, a formula has been fixed on the basis whereof calculation in respect of each individual workman is to be worked out which is not permissible under the said Act. Inasmuch as it is the rate which is to be fixed and not to lay down a formula for calculation of wages.

( 3 ) MR. J. N. Tiwari ably assisted by Mr. Rakesh Tiwari had also relied upon several decisions which will be dealt with at appropriate stages.

( 4 ) MR. Dinesh Dwivedi, learned counsel appearing for the respondents vehemently opposed the said ground and contended that in the counter-affidavit he has specified the particulars of the works carried on by the petitioner and on facts he had asserted that the petitioner is a manufacturing unit of glass products and, therefore, it very much comes within the ambit of the notification. He then contends that after 15. 10. 1990 a fresh Advisory Board has duly been constituted and the said Board having been consulted as is reflected from the notification itself. Therefore, the second contention of Mr. Tiwari cannot be sustained. He next contends that the fixing of minimum wages being legislative function through a delegated legislation, question of opportunity of hearing of individual employer does not arise. He next contended that in the writ petition itself, no case was made out that the consultation with the Advisory Board was in any manner wrong. The procedure for fixing the minimum wages as contemplated under Section 5 of the said Act have duly been followed. He next contends that the Dearness Allowance can be neutralised to the maximum extend of 100% and not above. Then again in the present case 100% neutralisation is permitted only in respect of the employees in lower category, therefore, the said contention of Mr. Tiwari cannot be sustained. He next contends that the conditions which are being sought to be assailed by the petitioner are conditions as postulated in Sections 13, 14, 15, 16 and 17 of the said Act and as such cannot be questioned. He last contends that the rates have been fixed and how the same has to be calculated is well within the jurisdiction of Government to decide and determine and therefore the same cannot be assailed on that account.

( 5 ) BY an order dated 8. 2. 1996 the writ petition was dismissed after adding respondent Nos. 3 to 8 as parties to the writ petition by an order dated 24. 1. 1996. An application for setting aside