The Edward Mills Co. Ltd., Beawar, and Others v. The State of Ajmer and Another.

Mukherjea J. such, as in the opinion of the State Government, is 1

necessary for completing the enquiry into the scheduled employment concerned and the State Government may, at the time of the constitution of the committees, fix a term and may, from time to time, extend it as circum-stances may require. Rule 8 provides for filling up the vacancies occurring or likely to occur in the member-ship of the committee by resignation of any of its members. Rule 9 lays down that if a member of the committee fails to attend three consecutive meetings he would cease to be a member thereof. The rule further ·states that such member could, if he so desires, apply, within a certain time for restoration of his membership and restoration could be made if the majority of the members are satisfied that there were adequate reasons for his failure to attend the meetings. On the 17th January, 1952, a committee was appointed to hold enquiries and advise the Chief Com-missioner in regard to the fixation of minimum wages relating to the textile industry within the State. Ten members were nominated consisting of four representa-tives of the employers, four of the employees and two independent members, one of whom Shri Annigeri was to act as an expert member of the committee \Ind the other, Dr. Bagchi, as its Chairman. The term of office of the members was fixed at six months from the date of the notification ending on the 16th of July, 1952. The first meeting of the committee was held on the 29th February, 1952. The expert member was present at that meeting and it was resolved that the minimum wages must not merely provide for the bar~ subsistence of life bµt should be adequate for the maintenance of the efficiency of the worker. The second meeting was held on the 29th March, 1952, and the third on the 14th of June, 1952. The expert member was not present at any other meeting except the first and on the 27th of May, 1952, he wrote a letter to the Chief Commissioner 1954 stating that he was proceeding to Europe on the 3rd Edward Mills Co. June, 1952, for a period of three months. He expressed Ltd. his willingness to assist the Chairman in the preparation v. T!te Stale qf of the report after he came back from Europe by the Ajmlr first week of September, next provided the term of the nd Anot!ter. committee was extended. If however that was not Mttk!tetjea J. possible, he requested that his letter might be treated as a letter of resignation from the membership of the Committee. No action appears to have been taken on receipt of the letter. The fourth and the fifth meetings of the committee were held respectively on the 8th and the 15th of July, 1952. On the 20th August, 1952, the Chairman of the Committee informed the Chief Commissioner that Shri Annigeri had ceased to be a member of the committee by reason of his failing to attend three consecutive meetings. He had also desired that his letter to the Chief Commissioner dated the 27th May, 1952, should be treated as a letter of resignation. In the circumstances the Chief Commis-sioner was requested to fill up this vacancy in the membership. On the very next day, that is to say, on the 21st August, 1952, a notification was issued by which the Chief Commissioner ordered the extension of the term of the committee up to the 20th of September, 1952, and on the 28th of August, following, another notification was made appointing Shri Annigeri as a member of the committee. The term of the committee was extended by a further notification till the 5th of October, 1952. In the meantime a meeting of the committee. was held on the 10th September, 1952, in which Shri Annigeri was not present. The only resolu-tion passed was, that all relevant papers might be sent to Shri Annigeri as desired by him. It appears that some time after the 14th of September, 1952, the Chairman himself took the papers to Nagpur where Shri Annigeri was staying and a draft final report was prepared by the Chairman in consultation with the expert member and both of them signed the report at Nagpur. The report was placed before the other members on the 4th October, 1952, and on the 7th of October, following, a notification was issued fixing

minimum rates of wages for the employees in the &/ward Mi/ls Co. textile industry in the State of Ajmer, under the

Ltd. signature of the Secretary to the Chief Commissioner v.

Stateef and stating that these rates should be deemed to be in Aj,,,... force from the 1st of September, 1952.

and Anothtr. Feeling aggrieved by this notification the three MuMer;feaJ. appellants in Appeal No. 138 of 1954 presented an

application under article 226 of the Constitution before the Judicial Commissioner of Ajmer on the 31st October, 1952, praying for a writ in the nature of mandamus ordering the State of Ajmer not to enforce the same. A similar application was filed by the Bijay Cotton Mills, the appellant in the other appeal, on the 6th of November, 1952. Both the petitions were heard toget_her and a common judgment was passed by the Judicial Commissioner on the 16th of February, 1953. The applications were dismissed except that the Chief Commissioner was held to have exceeded his legal authority in giving retrospective effect to the notifica-tion of the 7th of October, 1952, and the State of Ajmer, was restrained from enforcing the notification from any date earlier than the Sth of January, 1953. It is against this judgment that these two appeals have come up to this Court on the strength of certificates granted by the Judicial Commissioner, Ajmer.

Mr. Chatterjee, appearing for the appellants in Appeal No. 138, has put forward a three-fold argument -on behalf of his clients. He has contended in the first place that without a delegation of authority by the President under article 239 of the Constitution, the Chief Commissioner of Ajmer was not competent to function as the "appropriate Government" for purposes of the Minimum Wages Act. All the steps therefore that were taken by the Chief Commissioner under the provisions of the Act including the issuing of the final notification on the 7th of October, 1952, were illegal and ultra vires.

The second contention raised is that the provision of section 27 of the Act is illegal and ultra vires inasmuch as it amounts to an illegal and unconstitutional delega-tion of legislative powers by the Legislature in favour of the "appropriate Government" as defined in the Act. The third and the last contention is, that the 1954 Chief Commissioner had no authority to extend retros-Edward Mills Co. pectively the term of the Advisory Committee after it Llt/, v. ·expired on the 16th of July, 1952. State of

Mr. Seervai, who appeared in support of the other Ajmer . appeal, adopted all these arguments on behalf of his and Another client. He however raised some additional points Mukherjea J, impeaching the constitutional validity of the Minimum ·Wages Act itself on the ground that its provisions ·conflicted with the fundamental rights of the appellants and its employees guaranteed under article 19(1) (g) of the Constitution. These points were argued elaborately by the learned counsel in connection with the two petitions filed on behalf of the Bijay Cotton Mills Ltd., and a number of employees under them under article 32 of the Constitution and we will take them up for consideration when dealing with these petitions. We · will now proceed to consider the three points men-tioned above which have been raised in support of the appeals. ·

So far as the first ground is concerned the argument ·of Mr. Chatterjee in substance is that the expression "appropriate Government" has been defined in section 2(b) (ii) of the Minimum Wages Act to meal), in relation to any scheduled employment, not .carried on · by or under the authority of the Central Government, the State Government. "State Government" has been <lefine<l in section 3(60) of the General Clauses Act as meaning, in regard to anything done or to be done after the commencement of the Constitution in a Part C State, the Central Government. Prior to the commence-ment of the Constitution, under section 94(3) of the ·Government of India Act, 1935, a Chief Commissioner's Province could be administered by the Governor- . General acting to such extent, as he thought fit, through . a Chief Commissioner to be appointed by him in his discretion ; and under section 3(8) of the General 'Clauses Act, as it stood before the 26th of January, 1950, the expression "Central Government" included, in the case of a Chief Commissioner's Province, the · Chief Commissioner acting within the scope of authority .'.given to him under section 94(3) of the Government of 1954 India Act, 1935. Article 239 of the Constitution which Edward Mills Co. corresponds to section 94(3) of the Government of India:

Ltd. Act, though it is much wider in scope, provides that at v.

State ef A.faitr State specified in Part C of the First Schedule shall be and Another. administered by the President acting, to such extent· Mukhtrjea ]. as he thinks fit, through a Chief Commissioner or a

Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. Agreeably to this constitutional provision, section 3(8) (b) (ii) of the General Clauses Act, as amended by the Adapta-tion Laws Order, 1950, lays down that the expressioni "Central Government" shall include inter alia the Chief Commissioner of a Part C State acting within the scope· of the authority given to him under article 239 of the· Constitution. Ajmer was admittedly a Chief Commis-sioner's Province under section 94(1) of the Government· of India Act, 1935. It has become a Part C State after the coming into force of the Constitution. As has. been stated already, the Central Government issued a· notification on the 16th of March, 1949, under section 94(3) of the Government of India Act, directing that the function of the "appropriate Government" under the Minimum Wages Act would, in respect of any Chief Commissioner's Province, be exercised by the Chief Commissioner. There was no such delegation of autho--- rity however under article 239 of the Constitution after· the Constitution came into force. Mr. Chatterjee contends that in the absence of such delegation under· article 239 the Chief Commissioner of Ajmer cannot be regarded as "Central Government" as defined in section 3(8) (b) (ii) of the General Clauses Act as it stands at present and consequently he could not be· held to be the "appropriate Government" within the-- meaning of section 2(b) (ii) of the Minimum Wages. Act. The Government of India Act, it is said, stands repealed by article 395 of the Constitution. An order· issued under section 94(3) of the Government of India Act cannot possibly be operative after the inaugura-- tion of the Constitution, nor could it be regarded as an· order made under article 239 of the Constitution.

The contention does not appear to us to be sound_ A complete reply to this argument is furnished, in our opm1on, by the provisions of clauses (1) and (2) of 1954 article 372 of the Constitution. Article 372 runs as Edward Mills <Jo.. follows: Ltd. "•

"372. (1) Notwithstanding the repeal by this State ef Ajmer Constitution of the enactments referred to in article 395 and Another. but subject to the other provisions of this Constitution. Mukherjea j. all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

(2) For the purpose of bringing th._e provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment~ as may be necessary or expedient, and provide that the· law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law."

Thus clause (1) of the article provides for continu-ance, in force, of the existing laws notwithstanding the repeal by the Constitution of the enactments mentioned in article 395 and clause (2) provides for their adapta-tion with a view to bring them into accord with the provisions of the Constitution. The Government of India Act, 1935, undoubtedly stands repealed by article 395 of the Constitution, but laws made thereunder which were in existence immediately before the com- ·~­• mencement of the Constitution would continue under

article 372(1) and could be adapted under the second clause of that article. Mr. Chatterjee argues that article 372 has no application to the present case inasmuch as the order made bv the Central Government under sec-tion 94(3) of the ·Government of India Act could not be regarded as "a law in force" within the meaning of arti-cle 372. A distinction is sought to be made by the learned counsel between an "existing law" as defined in article 366(10) and a "law in force" and it is argued that though an "order" can come within the definition 1954 of "existing law", it cannot be included within the Edward Mills expression "law in force" as used in article 372. It js

Co. Ltd. argued next that even if the word "law" is wide enough

v.

State qf Ajmu to include an order, that order must be a legislative ant! Anotkr. and not a mere executive order promulgated by an Muklzerjea J. administrative authority, and in support of this conten-

tion the learned counsel has relied on a number of cases d.ecided by the Privy Council and the different High Courts in India.

The first point does not impress us much and we do not think that there is· any material difference between "an existing law" and "a law in force". Quite apart from article 366(10) of the Constitution, the expression "Indian law" has itself been defined in section 3(29) of the General Clauses Act as meaning any Act, ordinance, regulation, rule, order, or bye-law which before the commencement of the Constitution had the force of law in any province of India or part thereof. In our opinion, the words "law in force" as used in article 372 are wide enough to include not merely a legislative enact-ment but also any regulation or order which has the force of law. We agree with Mr. Chatterjee that an order m\!St be a legislative and not an executive order before it can come within the definition of law. We do not agree with him however that the order made by the Governor-General in the present case under section 94(3) of the Government of India Act is a mere execu-tive order. Part IV of the Government of India Act, 1935, which begins with section 94, deals with Chief Commissioner's Provinces and sub-section (3) lays down how a Chief Commissioner's Province shall be administered. It provides that it shall be administered by the Governor-General acting through a Chief Com-missioner to such extent as he thinks fit. An order made by the Governor-General under section 94(3) investing the Chief Commissioner with the authority to administer a province is really in the nature of a legis-lative provision which defines the rights and powers of the Chief Commissioner in respect to that province. In our opinion such order comes within the purview of article 372 of the Constitution and being "a law in force" immediately before the commencement of the Constitution would continue to be in force under clause 1954 ( 1) of the article. Agreeably to this view it must also be Edward Mills, held that such order is capable of adaptation to bring it Co. Ltd. in accord with the Constitutional provisions under v. State of Ajmer clause (2) of article 372 and this is precisely what has and Another. been done by the Adaptation of Laws Order, 1950. MukherjeaJ Paragraph 26 of the Order runs as follows :

"\\There any rule, order or other instrument was in force under any provision of the Government of India Act, 1935, or under any Act amending or supple-menting that Act, immediately before the appointed day, and such provision is re-enacted with or without modi-fications in the Constitution, the said rule, order or instrument shall, so far as applicable, remain in force with the necessary modifications as from the appointed day as if it were a rule, order or instrument of the appropriate kind duly made by the appropriate autho-rity under the said provision of the Co.nstitution, and may be varied or revoked accordingly."

Thus the order made under section 94(3) of the Government of India Act should be reckoned now as an order made under article 239 of the Constitution and we are unable to agree with Mr. Chatterjee that it was beyond the competence of the President under clause (2) of article 372 to make the adaptation order mention-ed above. The first contention of Mr. Chatterjee therefore fails.

Coming now to the second point Mr. Chatterjee points out that the preamble to the Minimum Wages Act as well as its title indicate clearly that the inten-tion of the Legislature was to provide for fixing minimum wages in certain employments only and that the Legislature did not intend that all employments should be brought within the purview of the Act. The schedule attached to the Act gives a list of the employ-ments and it is in respect to the scheduled employ-ments that the minimum wages are to be fixed. Under section 27 of the Act however, power has been given to the "appropriate Government" to add to either part of the schedule any employment in respect to which it is of opinion that minimum wages shall be fixed by giving notification in a particular manner, and 1954 thereupon the schedule shall, in its application to the Edward Mills State. be deemed to be amended accordingly. It is argu-

Co. Ltd. ed that the Act nowhere formulates a legislative policy

v. according to which an employment shall be chosen for T1" State ef Ajmer

and Another. being included in the schedule. There are no principles Muklmjea ]. prescribed and no standard laid down which could

furnish an intelligent guidance to the administrative authority in making the selection. The matter is left entirely to the discretion of the "appropriate Govern-ment" which can amend the schedule in any way it likes and such delegation of power virtually amounts to a surrender by the Legislature of its essential legis-lative function and cannot be held valid.

There is undoubtedly an element of delegation im-plied in the provision of section 27 of the Act, for the Legislature, in a sense, authorises another body, specified by it, to do something which it might do itself. But such delegation, if it can be so called at all, does not in the circumstances of the present case appear to us to be unwarranted and unconstitutional. It was said by O'Connor J. of the High Court of Australia in the case of Baxter v. Ah Way('):

"The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore, legislation from the very earliest times, and particularly in modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be J,..,. extended, or the particular class of persons or goods to which it shall be applied."

The facts of this Amtralian case, in material features, bear a striking resemblance to those of the present one. The question raised in that case related to the validity -0f certain provisions of the Customs Act of 1901. The I'-,. Act prohibited the importation of certain goods which were specifically mentioned and then gave power to the Governor-General in Council to include, by (') 8 C. L. R. 626 at 637.

proclamation, other goods also within the prohibited 1954 list. The validity of the provision was challenged on the Edward Mills ground of its being an improper delegation of legis-Co.Ltd. lative powers. This contention was repelled and v. The State ef it was held that this was not a case of delegation A}rrJe' of legislative power but of conditional legislation and Another. of the type which was held valid by the Privy Mukhtl;j,a J. Council in the case of Reg v. Burah (1). It can indeed be pointed out that in Burah's case what was left to the Lieutenant Governor was the power to apply the provisions of an Act to certain territories at his option :and these territories to which the Act could be extend- ,ed were also specified in the Act. The Legislature ·could be said therefore to have applied its mind to the ·question of the application of the law to particular }/fa places and it was left to the executive only to deter-

mine when the laws would be made operative in those ·places. According to the High Court of Australia the same principle would apply even when the executive is given power to determine to what other persons or :goods the law shall be extended besides those specifi- •call y mentioned therein. Whether a provision like this strictly comes within the description of what is called "conditional legislation" is not very material.

The question is, whether it exceeds the limits of permissible delegation. As was said by O'Connor J.

:himself in the above case, when a Legislature is given ;plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything neces-sary to the exercise of a power is included in the grant ·of the power. A Legisla~ure cannot certainly strip itself of its essential functions and vest the same on an ·extraneous authority. The primary duty of law mak-ing has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure. Mr. Chatterjee contends that the ·essential legislative function is to lay down a policy .and to make it a binding rule of conduct. This legis-Jative policy, he says, is not discernible anywhere in the

(1) 3 App. Cas. 889.

1954 provisions of this Act and consequently there is no. Edward Mills standard or criterion to guide the administrative-

Co. Ltd. authority in the exercise of the subsidiary legislative

v.

The Stal< of powers. We do not think that this is the correct view

Ap to take. The legislative policy is apparent on the face and Another. of the present enactment. What it aims at is the Muk/rerjea J. statutory fixation of minimum wages with a view to

obviate the chance of exploitation of labour. The Legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganized labour or want of proper arrange-ments for .effective regulation of wages or for other cau·ses the wages of labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the Legislature not to lay down at once and for all time to which industries the Act should be applied. Conditions of labour vary under different circumstances and from State to State and the expe-diency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administra-tion of a particular State. It is to carry out effectively the purpo~e of this enactment that power has been given to the "appropriate Government" to decide, with reference to local conditions, whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. We do not think that in enacting section 27 the Legislature has in any way stripped itself of its essential powers or assigned to the administrative-authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee cannot therefore succeed.

The tl1ird and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Com-missioner by which he extended the term of the Advi-sory Committee till the 20th of September, 1952. It is argued that the term of the committee, as originally fixed, expired on the 16th of July, 1952, and on and - from the 17th of July all the members of the committee -· Edward Mills became functus officio. The Commissioner therefore Co. Lid. was not competent to give a fresh lease of life to the v. Th.Stale of committee which was already dead. We do not think Ajmer that there is much substance in this contention. Rule and another 3 of the rules framed under section 30 of the Act Mukherjea J. expressly lays down that the State Government may fix the term of the committee when it is constituted and may from time to time extend it as circumstances require. The State Government had therefore a right to extend the term of the committee in such way as it liked. The only question is whether it could do so after the period originally fixed had come to an end.

Mr. Chatterjee relied, in this connection, upon certain cases which held that the Court could not grant exten-sion of time in an arbitration proceeding after the award was filed and an awarJ made after the prescribed period is a nullity. In our opinion this analogy is not at all helpful to the appellants in the present case. It is not disputed that the committee did not function at all and did no work after the 16th of July, 1952, and before the 21st of August next when its term was extended. No report was submitted during this period and there was no extension of time granted after the submission of the report. Assuming that the order of the 21st August, 1952, could, not revive a committee which was already dead, it could certainly be held that a new committee was constituted on that date and even then the report submitted by it would be a perfectly good report. Quite apart from this, it is to be noted that a committee appointed under section 5 of the Act is only an advisory body and that the Govern-ment is not bound to accept any of its recommenda-tions. Consequently, procedural irregularities of this character could not vitiate the final report which fixed the minimum wages. In our opinion, neither of the contentions raised in support of these appeals can succeed and both the appeals therefore should fail and stand dismissed with costs.

Appeals dismissed.

10-88 S C India/59