Bidi, Bidi Leaves' and Tobacco Merchants Association v. The State of Bombay

GaJtndragadkar J. hear 1nd decide for any specifir.d area all claims

arising out of the payment of less than the mini-mum rates of wages and other claims specified I therein. The remaining sub.sections of the said section prescribe the procedure for determining such rlaims. Under s. 21 a single application can be made in respect of a number of employees who wish to pre-fer a claim for the decision of the authority under R. 20. Section 22 prescribes penalties for the offences therein specified. Section 22A provides that if any employer contravenes any of the provisions of the Act or any rule or order made thereunder he shall, if no other penalty is provided for such contravention, be punishable with fine which may extend to five hundred rupees. Section 22B provides, inter alia the manner in which Courts may take cognizance of a complaint against any person for an offence committed under the Act. That in brief is the scheme of the material provisions of the Act.

At this stage it would be necessary to read thi> Rrvernl cl a.uses of the impugned notification : "No. MWA. 1557-J. In exercise of the powers conferred by eub·section (2) of section 5 read with clause ( b) of suh·eection (I) of that section of the Minimum Wages Act, 1948 (XI of 1948) and after consulting the Advisory Board and in supereeesion of the former Government of Madhya Pradesh Labour Department Notification No. 564-451 XXIII, dated 23rd Febrwuy, 1956, thl' Government of Bombay hereby revise the minimum rates I of wag~e in respect of the employment in any tobacco (including bidi making) manufactory in the Vidarbha region of the State of Bombay as mentioned in the Schedule hereto annexed and directs that this notification shall come BiJi, Bidi Leaves and into force with effect from lst July, 1958. Tobacco Merchants~ A.!sociation SCHEDULE v. Th• Stale of Bom•qy Subject to the other provisions of this Schedule, the revised minimum rates of wages Qaj1ndragadka.r J, payable to employees per thousand bidis (when leavas are supplied by the employer) shall be as follows:

Area Re vised rates in Rs.

( i) Nagpur District 1.69 (ii) Bhandara District ... 1.62 (iii) Chanda, Akola,

Buldana, Yeotmal, Amravati and Wardha District 1.56 ..

¶2For all bidis in which 7 chhataks or more of tobacco mixture is used and for those bidis lthich are known as "Hatnakun" bidis, t there shall be an increase of 12 Naye Paise

per 1000 bi dis in the rates mentioned aboTe in all the areas.

¶3It shall be within the ,discretion of the employer to decide which are "chhat"

hidis or bad bidis, up to 5 per cent of the bidis prepared by the employee. If the emp-loyer decided that any bidis are "chhat" or bed, the "ohhat'' or bad bidis up to 5 per cent sha.U be destroyed forthwith by the employee and whatever tobacco is recovered from them shall be retained by the employer. If, h!)w· ever the employer wants to retain these "chhat" or bad hidis, he shall pay full wages for the same to the employee.

¶4·If "chhat" or bad bidis are more than 5 per ClCJlt, but less than 10 per cant, and if there is any dispute between the employer

1~61 :mcl the employee as to whether the "chhat" lfirli, Bidi ltMts and or bad bidis is <lone properly or not, equal 1'cbarco Mnchr1n1J' number of representatives of the omployer and

:l1Joci&1ion the employees shall inspect the "chhat" is

v.

ht Stolt of Bum6ay done properly or not. If there is any differe-nce of opinion among the representatives of the two sides, the majority opinion shall pre-vail. If tho opinion is equally divided and the employer wants to retain the "chhat" bidis, ho shall pay wagcs for "chhat" bidis between ii per cent to JO per cent at half the rates fixed abo\'e. If the employer does not want to retaiu these bidis tho employee shall destroy them forthwith.

¶5The employer shall nominate his ropresentatives an<l the employees shall elect their representativt-s.

ti. In the case of "chhat" above 10 per cent., tho employee shall be entitled to full wages. It shall, however, be open to the I employer to take suitable action against the employee if the "chhat" is more than l 0 per cent for 6 continuous working days in a calen-da'r month.

¶7'.!.'he "chhat" shall be made once in a <lay only, at any premiaes within a distance of not more than 2 miles from the premilles where bidis are manufactured.

Explanation :-For the purpose of this Schedule the expression "employer" includes his thekedar, centractor or agent as the case may be.'

The validity of els. J and 2 ia not in dispute. The petitioners, howevar, contend that els. 3 to 7 are outside the powers conferred on the respondent by the relevant provisions of the Act and as such are invalid. It i1 common ground that even if the impugned claUBe8 arc held to be ultra vires they are severable from els. I and 2 so that the invaliditv of 1961 the impugned clauses will not affect the validity of Bidi, Bidi Leaves and the said two clauses and they will stand even if the Tobaceo li1erch'ltJ.ts Associatior. other clauses are struck down. v. The State of Bo"•l>a; In determining the question about t.he validity Gajendra1adkar J, of the impugned clauses it is necessary to refer to two material facts. The nature and scope of the terms of contract between the petitioners and their employees are really not in dispute. It is alleged by the petitioners that they employ a large number of persons for the purpose of making bidis for them, that these persons are supplied with tendu leaves, tobacco and other necessary . materials, they take the said articles to their respective places where they work and bring back the bidis prepared by them to the em-ployer. The employer then examines the bidis'

accepts such of them as are found to have been prepared according to the terms of the contract rejects such of them as a.re found to be of poor quality and not preparad according to the terms of I the contract and pays for the bidis actually accepted.

The respondent has not traversed these allegations made by the potitioners. It admitted that the workers are paid on piece-fate basis and the payment is made "on the basis of bidis selected and accepted by the employer after rejecting certain portions of bidis prepared by the work-ers". In fa.ct the respondent has expressly stated that "there is a recognised practice of making pay-ment on the basis of bidis accepted by employers as coming up to a certain standard of skill". It is further admitted that the employers have in-sisted on their right in principle of rejecting the sub-normal or sub-standard bidis prepared by the employees. Thua, there is no doubt that under the terms of the contract the workers are · entitled to receive payment only for the bidis accepted by the employers, and not for those

1961 which are rejected. It is also not disputed that the Bidi, Bidi L,..,, and bidis which are rejected by the employers otherwise Toba= M,,dlants' kn own as "c hh ata " are retame · d b y t h e emp J oyer

Assoru.1;..

•· though he refuses to take them into account in the T ht S ,.,, __ of Bomba,1 matter o f payment to t h e wor k ers on t h e groun d C..;.nJrqaikar J. that they do not come up to the stan'dard of

skill or quality prescribed by the contract.

It also appears t6 be true that the employees in this region have been protesting against impro-per rejection of the bidis by the employers. They have contended that the employers reject an un-_reasonably high proportion of bidis falsely dub-bing them as of sub-normal quality without paying anything to the workers for their labour spent in rolling such rejected bidis. In it.! affida-vit the respondent has emphasised that as a result of this method of discarding bidis on the ground that they are of sub-standard quality bidis work-ers were deprived of the labour charges for bid.is which are rejecttld by their employers; and so it was urged that the question of · fixing minimum rates of wages for bidi workers necessarily involved the question as to the quantum or I percentage of such rejection which should be permissible to the employer. According to the respondent ~he impugned notification has purported to fix the minimum rates of wages after taking llito consideration the problem presented by the praotioe of discarding bidis and paying wages to the workers only for such bidis ae are ac-cepted. In BUpport of the validity of the notification the re~pondent aleo relied on the fact that 'the for-mula prescribed by the notification had been evolved after taking into aooount the respresentstions made both by the employers and the employees. In faot, according to the respondent, the said formula represented a substantial degree of agreement bet-ween the parties on this point.

It would thus be aeen that on ihe two material faote there is really no serious dispute between the parties. The respondent agrees th~t under the practice 1961 which mnst be taken to be consistent wi~h the implied Bidi, Bidi and Lttw~s terms of contract between the bidi manufactufer and Tobacco Merchants' his employee, after the bidis are prepared by the Association v. employees and brought back to the employer the The State of Bombay employer has a right to examine the quality of the Gqje.ndragadkar J. bidis, a.ccept only such as have come up to the standard prescribed by the contract and reject the rest. The practice further justifies the payment of wages to the employees only for the bidis actual-ly accepted and not for those which are rejected though the rejected bi'1is may be retained by the employer. On the other hand, it is not, and can-not be, serioru;ly disputed by the petitioners that in some cases this practice may work great hard-ship on the workers, and in every case the workers do not get wages for the labour put by them in rolling the rejected bidis. The main question which arises for our decision in the present appeals is whether the injru;tice resulting from the practice of discarding bidis and not making any payment for them to the workers can be checked, controlled and regulated by the respondent by issuing a noti-fication under the powers conferred on it by s.5 of the Act. If the relevant provisions of the Act confer upon the respondent the power to check the evil against which the workers complain then of course the validity of the impugned clauses would be beyond challenge. If, on the other hand, the power to prescribe or revise minimum rates of wages does not either expressly or by neoellsary implication include the power to provide for the machinery to check the evil in question, then the impugned clauses would be ultra vire8 however necessary it may be to check and control the said evil in question.

In 'this connection let us broadly examine the scope and effect of the impugned clauses.

Clauses I and 2 prescribe the revised minimum rates distriotwise and provide for the payment of higher

:194 SUPREME Cl>lJHT RErOHTS [1962] SUP1'. price for tho bidis known as Hatnakhun hidis in 1.111 Bidi. Didi l~at·tJ and the said districts. These two dauses arc obviously '/Qta<co .\ltrcliarits" valid and the petitioners have not disputed the

AsJCKi 1tton conclusion of the High Court in that behalf. Claus-

v.

h~ S1a1e of Bomb•.] es 3 to 6 deal with the problem of the Chhat hidis

or bidis which are rejected because they aro bad. Clause 3 leaves it to the discretion of the employer to decide which arc chhat bidis up to 5 percent of the bidis prepared by the "mployees. This cluasc provides that the bidis so rejected would be destro-yed and tobacco recovered from them retained by the employer ; and it adds that if the employer wants to retain the rejected bidis he shall pay full wages' for tho same to the employee. In other words this, clause means that the employer may discard bidis up to 5 per cent but if he doCI! not want. to pay the workers for the said bidis he must destroy them. That would show that the discretion exerci.i!ed by him i~ honest and fair. If, on the other hand, he wants to retain the said bidis that would mean that ho thinks that the bidis would find a market and in that case he must pay for them on the basis that they are good bidis. On priciplc this provision may perhaps not be open to any serious criticism and it is not unlikely that if the notification had not made further det~iled provisions by ols. 4 to 6 the present dieputo would not have been brought before the High Court. The employers probably do not have a serious grievance against cl. 3 on the merits.

Clause 4 deals with cases where the rejection may be more than 5 per cont but less than IO per cent of total work produced by the worker. In regard to this cl1.11111 o~ cases cl. 4 ~rovides for . a machinery to deal with cases fallmg under it. Representatives of the employers and employl.'68 have to be appointed and they havti to decide whether the work has been properly done or not. The decision would bo according t.o the opinion of the majority. If the opinion is equally divided (I) S.C.It. 8Ul'REME COURT REPO'ItTS 395 and tho employer wants to retain the chhat bidi8, 1V61 between 5 per cent to 10 per cent he shall pay at Bidi, Bit!i Leaves anr:I half the rates fixed in cl. 1. If the employer does Tobacco M ercha11ts' not want to retain them the employees shall destroy Association v. them, The clause does not seem to provide for a 7 he S tote of Bomba; case where the majority opinion may support the Gajendragadkar J. rejection between 5 per cent and 10 percent ; that is a lacuna in the clause. The only comment which can be legitimately made against the clause on it.s merits is th~t the setting up of the machinery for a kind of adjudication of the dispute between the employer and the employee may, instrncl of solving the difficulties in actual working, add to them:

. That takes us to cl. 6. This clause has been very severely criticised by the petitioners. It pro· vides that in case of chhat above 10 per cent the employees shall be entitled to full wages which means that even if chhat above 10 per cent i1 made reasonably and for a proper cause the employer has to pay for the discarded work as therein pres-cribed ; the only right given to the employer in such a case is to take suitable action against the employee if the chhat is more than 10 per cent and that too for six continuous working days in a calendar month. Prima facie this clause appears to be unreasonable and unjust.

The explanation to cl. 7 is also. criticised by the petitioners because the thekedar, contractor or agent, who is appointed by the employer would, if the explanation is valid, be liable to perform all the obligations imposed on the employer by the relevant provisions of the Act such as ss.12 and 18.

We have examined the broad features of the notifi· cation and indirated .the comment made on it by the petitioners for the purpose of showing that on the merits some of the clauses do not appear to be fair and just, but that is not the ground on which their validity can be or has been challenged before us. The main argument in support of the challenge

:~!lfi SUPHEME COURT REPORTS [1962] SUPP. 1961 rests on the as~umption that els. 3 to 7 arc all be· 1idi, Bidi l4tlr~s ontf yond the powers conferred on the respondent by Tobac,o Altr,ltants• the relevant provisions of the Act ; and it is this

A ss0<iation .. argument which needs to be examined .

rn, Stai, of BomHy It is well settled that industrial adjudication Gej,1,d1cg1u/A1.r J, uder the provisions of the Industrial Disputes Act.,

1947(14 of 1947) is given wide powers and jurisdic. tion to make appropriate awards in determining in-dustrial disputes brought before it. An a'lfard made in an industrial adjudication may impose new obliga-tions on the employer in the interest of social justico and with a view to secure peace and ha1mony between the employer and his workmen and full co-operation botween them. Such an award may oven alter the terms of employment if it is thought fit and nece888ry to do so. In deciding industrial disputes tho jurisdiction of the tribunal is not con· fiued to the administration of justice in accordance with the Jaw of contract. Mukherjee, J ., as he then was, has observed in The Bharat Bank Ltd., lJellii v. Employees of the Bharat Bank Ltd., Del/ti (1) the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it consid!'Ts essential for keeping industrial peace." Since the decision of the Federal Court in Western India Atltomobile Association v. industrial Tribunal, Bombay('), it h<U! been repeatedly held that the jurisdiction of industrial tribune.ls is much wider and can be reasonably exe1·cised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas lndustriu, Ltd., v. Brijnandan Pandey ('); The Patna Electr·ic Supply Co. Ltd., Patna v. 'J'he l'atna Electric Supply Workers' Union('). Indeed, during the last ten years and more (II [1950 S.C.R.4S~.Sl3, (21 A.l.R. [19•9]F.C. lli,[1949]F.C.32r. industrial adjutlication in this conntrv has made 1961 so much progress in determinin~ industrial d sputes Bidi, Bidi L1twes altd &rising between industries of different kinds and Tobacco Merchm11t their employees that the jurisliction ani auth >rity A.Sso~ialio.i v-.--· of industrial tribunals to dna\ with .such disputes The State of Bomhrg with the object of ensuring social justice is no Gqjendrogadk•r J. longer seriously disputed.

But, it is necessary to remember that no claim can be made for such broad jurisdictional power by the respondent when it purports to issue a notification under the provisions of the Act.

These powers and authority would necessarily be conditioned by the relevant provisions under which it purports to act, and the validity of the impugned notification must therefore be judged not by general considerations of social justice or even considera-tions for introducing industrial peace; they must be judged solely and exclusively by the test prescribed by the provisions of the statute itself. It appears that in 1956 before Vidarbha became a part of the State or Bombay the State Government of Madhya Pradesh had made a com· prehensive reference· for the arbitration by the State Industrial Court between the bidi manu· facturers of Bhandara District and their employees.

In this dispute all the material issues arising from the prevailing practice which authorised employers to reject ohhat bidis had been expressly referred for adjudication. Subsequently, when the impugned notification wa~ issued the respondent apparently took the view that wh11t could have been achieved by reference to the arbitration of State Industrial Co11rt may well be accomplished by issuing a notifi-cation under s. 5 of the Act. It may be that there is substance in the grievanco made by the employees that ~he practice of rejecting chhat bidis often leads to tho injuatice and deprives them of the wages legitimately earned by them by rolling the said bidis and there can be no doubt that if a comprehensive reference is made for the decision of

398 SUPREME OOURT REPORTS [1962] SUPP.

1901 this industrial dispute between the bidi ma.nufao. Jidi, Bidi 1...,,,, .,,d turers and their employees an award ma.y well be Tobauo Mrrch••t•' passed which will resolve this dispute; hut the

AHociatUm question which falls for our decision is whether the

v.

'r.. S1at<0f Bombay relevant proviaions of the Act authorised the Stnto ojcndrag•dkar J. Government io make rules for the decision of the dispute in that behalf and for the p<~yment of mini· mum rates of wagcR on the basis of such decision? In our opinion, the answer to this question haR to be in the negative.

Wba.t is the extent of the authority conferred on the respondent in fixing or revising minimum rates of the wages under the relevant provisions of the Act? In dealing with this question we must ncceSBarily bear in mind the definition of the term "wages" proscribed by s. 2(h). As wo have already Aeen the term "wages" includes remuneration which would, if the terms of tho contract of employment, express or implied, were fulfilled, be payable to a. person employed in respect of his employment.. In other words, the terms "wages'' r~fcrs to rcmunera-t.ion payable to tho employee as a result of the t-0rms of employment. What would be the amount tu which tho employee is entitled if tho other terms of the contra.ct are preferred ? That the question which has to be asked in detennin. i11g what the torm "wages" means under H. 2(h). No doubt ~s. 3, 4 and 5 authorised the appropriate Government to fix the minimum rates of wages. In other words, if the wa.geR fixed by n. contra.et which is either express or implied are found to be low authority is conferred on the appropriate Government to increase them so as to bring them to the level of what the said Government ra.gards as the minimum wages in the particular scheduled employment in the particular area concerned. Thia means that power is conferred on the appropriate Government to modify one term of the contract exprese or implied between the employer and the employee and that is a term which has reference to the payment of wages. If for a certain piece of Bidi, Bidi Lta11er find,,. work done by the employee the employer has agreed Tobacco Merchant)' to pay him either expressly or by implicati a Assar:iatiOn 111 v. certain amount of wages the appropriate Govern- ·rhe State of Bomhav ment can issue a notification and prescribe that Gajendragadk111 J. for the said work done under the contract the employer must pa,y his employee a much higher rate of wages and the higher rate of wages thus prescribed would be deemed to be the minimum rate of wages between the parties.

It would, however, be noticed that in defining "wages" cl. 2 {h) postulates that they would be payable if the other terms of the contract of employ-ment are fulfilled. That is to say, in authorising the fixation of minimum rates of wages the other terms of the contract of employment have always to be fulfilled. The fulfilment of the other terms of the contract is a condition precedent for the payment of wages as defined under s. 2 (h} and it continues to be such a condition precedent even for the payment of the minimum rates of wages fixed and prescribed by the appropriate Government.

The significance of the definition contained in s. 2(h) lies in the fact that the rate of wages may be increased but no change can be made in the other terms of the contract. In other words, the Act, operated on the wages and docs not operntc on the other terms of the contract between the employer and the employee. That is the biisic approach which must be adopted in determining the scope iind effect of the powers conferred on the appropriate Govern-ment by the relevant provisions of the statute ii~tho­ rising it to prescribe minimum rates of wages or to revise them. What thA appropriiite Government is authorised to do is to prescribe, fix or revise wages and wages are defined to be remuneration piiyablc to the employees if the terms of the contract of employment, express or implied, wore fu !filled.

400 SUPREME OOURT REPORTS [1962) SUPP.

1961 Thie definition nms, as it inevitably must, through Bidi, Bidi Ltaus onJ the material provisions of the Act a.n•l its import· Tobacco M,,tlumts' ance cannot ther<'fore be ignored.

AlJoeiation

v.

N S1at1 of Bo~v Bf'aring this fa.ct in mind let us examine the najtnclro_fadktu J. inpugned clauses of the notification. Clauses I and

2 dearly fall within the pun i<>w of the' power conferred on the respondent because' they do no more than prescribe the minimum rakR of wages as therein specified; but. els. 3 to 7 clearly and unambiguously purport to deal with tlie terms of the contract between the partieR othrr than that relating to I he remuneration. TheRe clausP.s are obviously intended to deal with the dispute between the employers and their employees as to how hidis should be disr.ardcd and in what proportion and what should lie the procecluro to be follow')cl in regarrl to thP payment for such discarded bidis. In appreciating the true effect of these clauses it is nec<>ssary to recall that tbe parties a.re agrl'ed about the practice a.t present prevailing which muat be taken to represent the terms of the contract either express or implied. According to the said practice the employer decides which bidis should be dis-carded, he retains the discarded bidis and pays only for such hidis as a.re acl'cpted by him. It is plain that the impugned c111uses of the notification purport to modify these terma in ma.teria.J particular~ and that would be plainly outside the jurisdiction of the authority of the respondent. It may well fo1m the subject-matter of reference for induetrfal adjudication but it cannot fonn the subject-matter of a notification prescribing minimum rates of wages under ss. 3, 4 or 5. It is conceded by the res. ponrlent that there is no express provision in the Act, which authorised the setting up of the mach-inery as prescribed by els. 3 and 4 or for laying <lo'Wll the manner in which the employer should make payment for the disearded bidis. It is, however, strenuously urged that the validity of these clauses should be upheld on the ground of the implied power of the respondent; and that takes us 1981 to the question as to the true scope and effect of BiJi, Bidi Uav.er µn·fJ the doctrine of implied power. Tobacco Jfcrcl1a111.1' Associa:iun "One of the first principles of law with regard v. ·rtu /:hate nfBo'Jtb.iy to the effect of an enabling act", observes Craies, "is that if a Lagislature enables something Gaje11Jr11gadkar J, to be done, it gives power a,t the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the pur-poses in view(1)". The principle on which the doctrine is based is contained in the legal maxim 'Quando lex aliquid concedit roncedere tJidetur et illud sine q1w res ib1a ease non potest'. This maxim has been thus trans-lated by Broom thus : "whoever grants a tliing is deemed also to grant that without which the grant itself would be of no effect". Dealing with this doctrine Pollock, C.B., observed in Michaely Fenton -I

and James Fraser v. John Stephen Hempton(') "It becomes therefore all important to consider the true import of this maxim, and the extent to \fhic11 it has been applied. After the fullest research I which I have been able to ha.stow, I take the matter

to stand thus : Whenever anything is authorised, and especially if, as matteP of duty, required to be done by law, an<l it is found impossible to do that thing w1less something else not authorised in ex-press terms be else done, then that something will be supplied by necessary intendment." This doct-rine can be invoked in cases "where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means as are essentially necessary to its execu-tion (8)." In other words, the rloctrine of implied powers oan be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some

(I) Craies on Statute Law, p. 239 (2) (1858) 117 R.R. 32, 41, II Moo. P.C. 347.

(3) Maxwell on Interpretation of Statutes, lOth ed., p. 361.

1161 auxiliary or incidental power is assumed to exist. Bi4i, BiJi letw•s and In such a case, in the absence of an implied powe1 TMocco AltrcMnls' the statute itself would beco:ne impossible of com-

AssociCJJion ••

pliance. The impossibility in question must be of Tiu Si.t• of &m""7 a general nature as that the performance of duty Gajwir'ladUr J. or the exercise of power is randt>red impossible in

all cases. It really means that the statutory pro-vision would become a dead-letter and cannot be enforced unleBB a subsidiary power is implied. This position in regard to the scope and effect of doctrine of implied powers is not seriously in dis-pute before us. The p<irties are at issue, however, on the question as to whether the doctrine of implied powers oan help to ndidate the impunged clauses in the notification.

The respondent strenuously contends that els. I and 2 of the notification which hwe prescribed the minimum rates of wages per 1000 bidis would become ineffective unless els. 3 to i supplement them. The argument is that by improper or dis-honest exercise of the power conferred on t.he employer by the contract of cmplo,vment to discard chhat bidis the employees would be cheated of their legitimate due wages under els. I and 2 r.nd so, in order t-0 make the provisions of els. 1 and 2 l'ffective su;ne subsidiary provisions had to he made for settling the dispute between the employer and his workmen in regard to chhat hidis. As we have already observed, tho grievance made by the em-. ployees on the score of improper rejection of bidis may in many cases be wollfounded; but the ser-iousness of the said grievance and the urgen.t necessity to meet it would hardly be a proper basis for invoking the doctrine of implied power where the provisions of the statute are quite clearly against the assumption of such implied pow~r. The definition of the term "wages" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That IHI being so, it is difficult to hold that by implication Biii, BiJi Uaries ad tht> very ha.sic concept of the term "wages" can be Tobacco ll11dumts' ignored and the other terms of the contract can be .AuoeiMion v. dealt with by the notification issued under the rl'le-Th. 8tat1 of Bo.W.y vant provisions of the Act. When the said other Gajnulr.,a.UW J. terms of the contra.ct a.re outside the scope of the .Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers?

Besides, in this connection it is also neces-sary to bear in mind the provisions of ss. 20 a.nd 21 of the Act. These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages. If for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employees can make 11. claim in that behalf and the same would be tried under ss.20 and 21. Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by noti-fications. The present notification purports tu ignore the said provisions and sets up a machinery to settle the said disp~tes. Clauses l and 2 of the notification have prescribed the revised minimum l'ates of wages. If, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed bys. 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in the noti· fl.cation.

There is yet another consideration which is relevant in dealing with the question about the implied powers. The doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement. In the present

404 SUPREME OOURT REPORTS [1962] SUPP.

IHI case a.II that a. requires is the fixation' or minimum 5 BiMt aun· Liatws OIJJ r.atea of wa.gea, and tha.t ha.a been done by the Taha<"' M "'ha""' notification hy els. 1 nnd 2. What the subsidiary

Associ4tiM

Y, clauses purport to do is to make the enforcement 77it Stall of Bombay of the fixed rate effective by providing for a. Gojtndrogodkor J. machinery to deal with the possible disputes a.rising

between the parties a.s a result of the practice of discarding chha.t bidis. In other words, ols. 1 and 2 fix tho minimum rates of wages and thus e. 5 ha.a been complied with and enforced. The remaining clauses purport to make the implementation of the provisions of els. I and 2 effective. That is very different from giving effect to s. 5 itself. The enforcement of the notification is clearly not the same thing as exercising the power of fixing or revising the minimum rates or wages under s. 5. A Power may be implied, if necesBAry, in discharging the duty imposed upon the appropriate Govern. mcnt or in exercising the power conferred on the State Government in the matter of fixin& or revi-sing the minimum rates of wages; but RUrcly no pown <>an be implied for making effective the implementation of the notification iBBued under the said power or in the discharge of the sa.id duty. The purpo8e of the Act cannot be said to have failed aft-0r the min\mum rates of wages are pres. cribed and notified. What may turn out to be ineffective is the provision for payment of the said wages by reason of the rejection of good bidis; but that is a matter of an industrial dispute which has to be adjudicat-Od upon under sa. 20 a.nd 21 or under other provisions of the law. It is true that a large section of the workers in the bidi trade is illiterate, uneducat-0d and unorga.nised; and there can be no doubt that their grievance on the ground of impro-per rejection of the bidis deserves to be redressed, but, in our opinion, the procedure adopted by the respondent in redreBBing the said grievance is out-side the scope of the Act, and therefore beyond the powers conferred on it by s. 5. The proper remedy in such a case may be to make a comprehensive re-1961 ference of the di8pute to the competent industrial Bidi, Bidi ltavtt and tribunal and invite the tribunal to make a proper Tobacco A1 erchants' award in that behalf. We are, therefore, inclined to .Association v. take the view that cls.3 to 7 which form an integral The State of Bomb•y scheme are outside the purview of the powers con-G•jendr apndkar J. ferred on the respondent by s. 5 of the Act and must therefore be declared to be ultra vires. It is common-ground that these clauses are severable from els. l and 2 and that their invalidity does not affect the validity of the said two clauRes.

In the result Civil Appeals Nos. 415 and 417 are allowed and Civil Appeals Nos. 416 and 418 are dismissed. Respondent to pay the costs of the petitioners in Civil Appeals Nos. 415 and 417. One set of hearing costs.

O. A. Nos. 415, 417 allowed.

=I O. A. Nos. 416, 418 dismissed .

PROMOD CHANDRA DEB AND OTHERS 1961

v. October ltl

THE STATE OF ORISSA AND OTHERS

(B. P. SINHA, c. J., s. IC DAS, A. K. SARKAR

N. RAJAGOPALA AYYANGAR and J. l{. J\IuDHOLK~R, JJ.) Khor Posh Grant-Maintenance allowance granted by Ex-Ruler of State-Merger of State with the Dominion of lndia-Abrogation of grant by executive act.ion-if an act of State-Oonstitutiona/ Validity-Constitution of India, Arts. 14, 19(1) (/), 31-Extra Provincial J,,risdiction Act, 1947(47 of 1947) ss. 3, 4, 5-Administration of Ori.,a States Order, 1948, Para'.

4(b)-8tates' M.rger (Governors' Pmvinces) Order, 1949, ss. 3.

4,-Government of India Act, 1935 (26 Geo. 5, ch. 2) s. 299 ( l).

The petitioners, who were holders of Khor Posh grants from the Rulers of Talcher, Bamra and Kalahandi before these states merged with the Dominion of India, chall"n.~ed the constitutional validity of certain orders passed by the State