Civil Appeal No 389 of 1959
Appeal from the judgment and order dated October 25 1957 of the Bombay High Court at Nagpur in Misc
Petition No 476 of 1956
A section Bobde and Ganpat Rai for the appellant
H J Umrigar K L Hathi and R H Dhebar for respondent No 2 1960
April 7
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal arises from a writ petition filed by the appellant Madhya Pradesh Mineral Industry Association in which the appellant challenged the validity of the notification issued by the Madhya Pradesh State Government on March 30 1952 under section 52 of the 11 of 1948 hereinafter called the Act
The High Court of Bombay at Nagpur dismissed the appellant s petition but has granted the appellant 61 478 a certificate of fitness under article 1331c of the Constitution
It is with the said certificate that the present appeal has been brought to this Court
The appellant is a non profit making company limited by guarantee and registered under section 26 of the Indian Companies Act 1913
It has been formed with the object of protecting and promoting the interest of its members shareholders who are engaged in the mining industry by all legitimate and constitutional means
It appears that under article 258 of the Constitution the President of India by Notification No SRO 2052 published on December 11 1951 entrusted Governments of 
certain States including Madhya Pradesh with their consent the functions of the Central Government under the Act in so far as such functions relate to the fixation of minimum rates of wages in respect of employees employed in stone breaking or in stone crushing operations carried on in mines situated within their respective States
Pursuant to the said delegation the Madhya Pradesh Government issued the impugned notification purporting to act under section 52 of the Act
This notification has prescribed the minimum rates of wages for employment in stone breaking or in stone crushing operations carried on in mines
The rates thus prescribed were inclusive of dearness allowance or compensatory cost of living allowance
The Regional Labour Commissioner Central Nagpur Respondent 1 wrote to the appellant for the first time on June 20 1956 stating that the State of Madhya Pradesh Respondent 2 had considered the question whether the Act was applicable to the manganese mining industry and had come to the conclusion that it was so applicable that is why the appellant s members were asked by respondent 1 to implement the Act within a fortnight from the receipt of his letter
The appellant made several representations to respondent 1 urging that the Act was inapplicable to the manganese mining industry nevertheless respondent 1 threatened large scale prosecution of the appellant s members on the basis that the Act applied to them and its provisions bad been contravened by them
The appellant was thus driven to file the 479 present petition because it alleged that it had no alter native remedy at any rate equally speedy and efficacious and so it was urged on its behalf that the High Court should issue a writ quashing the impugned notification as ultra vires
In its petition the appellant had also alleged that the notification issued by the President of India under article 258 cannot fasten upon the manganese mining industry the character of employment in stone breaking or stone crushing and if that was the object of the said notification it was invalid
The respondents disputed the correctness of the appellant s contention that the impugned notification is invalid
It was urged on their behalf that any industry wherein the workers are employed in operations involving stone breaking or stone crushing is governed by the Act
In their written statement they described the details about the mining operations and contended that the mining of manganese ore mainly consists of development work or the removal of over burden breaking of big mineral stones like boulder ore or bed ore to manageable sizes dressing of ores to remove impurities etc
According to the respondents having regard to the nature of the manganese mining industry the Act applied to the stone breaking or stone crushing operations connected with it
The High Court has accepted the respondent s plea and has rejected the appellant s prayer that a writ should be issued in its favour prohibiting the respondents from enforcing the provisions of the Act against its members
Unfortunately on two important points the High Court has misdirected itself
It appears to have assumed that the impugned notification has added an entry in the Schedule to the Act and has observed that as a result of the said addition the provisions of the Act came to be applied to the employment in stone breaking or in stone crushing operations carried on in the mines
The High Court has made this observation in setting out the appellant s case and it is on the basis of this observation that the High Court has proceeded to examine the validity of the appellant s contention
It is however clear that the impugned notification does not purport to add any 480 item in Schedule I and that was also not the case of the appellant
Thus the assumption made by the High Court on both the points is with respect erroneous
In its judgment the High Court has also observed that the vires of the impugned notification though challenged in the petition was not challenged before the High Court and so the only question that remained for its decision was one of interpretation of the relevant provisions of the entry introduced by the notification
This statement again does not appear to be entirely correct
The principal if not the sole ground on which the appellant sought for a writ from the High Court was that the impugned notification was ultra vires section 52 of the Act
If the validity of the said notification had been conceded by the appellant its writ petition would have immediately become ineffective because if the notification is valid then the question of construction of the material entry can present no difficulty whatever
In terms the stonebreaking and stone crushing operations carried on in mines are specified and the appellant could not possibly urge that the relevant activities carried on by its members did not attract the said description
In view of the fact that the High Court has made a clear statement to the effect that the vires of the impugned notification had not been challenged before it we were at first not inclined to allow Mr Bobde for the appellant to argue that point before us however after hearing him and after considering the rest of the record we are satisfied that the statement made in the judgment is not accurate
In the petition filed by the appellant the validity of two notifications was challenged the first was the notification issued by the President of India under article 258 of the Constitution and the second is the impugned notification under which proceedings are threatened against the appellant s members
It is clear from the record that the appellant did not and could not have pressed its case against the validity of the first notification but it did press its objection against the validity of the second notification  and that would be clear from the certificate of fitness granted by the High Court itself
The 481 certificate says that the questions raised by the appellant relate to the applicability of the provisions of the Act to persons employed in stone breaking or stone crushing operations carried on at various manganese mines
Now it is clear that this question can arise only if the appellant seeks to challenge the validity of the notification not otherwise
It is because the employees in question are according to the appellant not employed under any of the items prescribed in the Schedule to the Act that the impugned notification is invalid in that context the questions posed in the certificate would arise
If the notification itself is valid then the solution to the question posed can hardly be regarded as fit for a certificate under article 1331c of the Constitution
Besides the appellant s contention against the validity of the impugned notification has been set out in its application for certificate before the High Court and the same has been expressly repeated in the statement of case filed by the appellant before us
We must therefore hold that the High Court was in error in assuming that the vires of the impugned notification had been conceded by the appellant before it
This is another serious infirmity in the judgment of the High Court
As a consequence of the two infirmities in the judgment the approach which the High Court adopted in dealing with the matter has been considerably influenced
It has no doubt considered the meaning of the word  employment and  stone  in connection with the expression stone breaking  and  stone crushing
Even this part of the discussion  in the judgment seems to assume that the impugned notification has really added one item to the list in the Schedule
It has apparently not been realised that if the present notification purported to make an addition to the items in the Schedule there would have been no controversy between the parties
According to the High Court employment should be given its wider sense and should be held to mean  the action of employing or the state of being employed 
The High Court has also held that the word  stone  should be taken to mean  a piece of rock or hard mineral sub
stance other than metal of a small and moderate 482 size
The interpretation of the two words adopted by the High Court has been taken by it from the Shorter Oxford Dictionary and having assigned to the two words the two respective meanings just stated the High Court has held that stone breaking and stone crushing operations carried on in mines would attract the provisions of the Act
Before dealing with the vires of the impugned notification it would be material to examine the relevant provisions of the Act
The Act has been passed to provide for minimum rates of wages in certain employments
Section 2b defines the appropriate government as meaning inter alia 1 in relation to any scheduled employment carried on by or under the authority of the Central Government or in relation to a mine the Central Government and 2 in relation to any other scheduled employment the State Government
It would thus appear that the Legislature intended that the provisions of the Act may in due course be extended to mines and so it has prescribed that in respect thereof the Central Government would be the appropriate Government
Section 2e defines an employer as meaning inter alia any person who employs whether directly or through another person or whether on behalf of himself or any other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act
Section 2g defines scheduled employment as meaning an employment specified in the Schedule or any process or branch of work forming part of such employment
Section 3 authorises the appropriate government to fix minimum rates of wages in regard to the employments specified in Parts I and II of the Schedule respectively and prescribes the procedure in that behalf
Section 5 lays down the procedure for the fixing and revising of minimum wages
Section 52 provides that after following the procedure prescribed by the said 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 483 of three months from the date of its issue
There is only one more section which needs to be mentioned that is section 27 which empowers the appropriate government to add to either part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act after following the procedure prescribed by it and the section adds that after the notification is thus issued the Schedule shall in its application to the State be deemed to be amended accordingly
It is thus clear that the whole scheme of the Act is intended to work in regard to the employments specified in Part I and Part II of the Schedule and the Legislature has wisely left it to the appropriate government to decide to what employments the Act should be extended and in what areas
Section 52 empowers the appropriate government to fix or revise minimum wages in regard to any of the employments in the Schedule to which the Act applies
This power can be exercised only if the employment in question is specified in the Schedule and the Act is therefore applicable to it
Section 27 confers a wider power on the appropriate government and in exercise of the said power the appropriate government may add an employment to the Schedule
The nature and extent of the said two powers are thus quite separate and distinct and there can be no doubt that what can be done by the appropriate government in exercise of its power under section 27 cannot be done by it in exercise of its power under section 52
It is significant that the impugned notification has been issued by the Madhya Pradesh Government by virtue of the powers under section 52 of the Act which have been delegated to it by the President in exercise of his authority under article 258 of the Con stitution
The main argument urged by Mr Bobde is that the impugned notification is ultra vires section 52 because stone breaking and stone crushing operations in manganese mines do not full under any of the items in Part I of the Schedule
The dispute thus raised really lies within a very narrow compass Does employment in stone breaking or in stone crushing operations carried on in mines specified in the impugned notification amount to employment in stone breaking 484 Schedule to the Act It is common ground that the employment in question does not fall under any other item in Part I
It is true that the provisions of the are intended to achieve the object of doing social justice to workmen employed in the scheduled employments by prescribing minimum rates of wages for them and so in construing the said provisions the court should adopt what is sometimes described as a beneficent rule of construction
If the relevant words are capable of two constructions preference may be given to that construction which helps to sustain the validity of the impugned notification but it is obvious that an occasion for showing preference for one construction rather than the other can legitimately arise only when two constructions are reasonably possible not otherwise
Now does employment in stone breaking or stone crushing as specified in of the Schedule on a reasonable construction include stone breaking or stone crushing operations in a mining industry  In answering this question it would be necessary to bear in mind that the scheduled em ployment under section 2g covers the employment specified in the Schedule or any process or branch of work forming part of such employment
It is conceded before us by both the parties that the provisions of the Act apply to the scheduled employments in all branches of their work which may be incidental to the main scheduled employments
The impugned notification on the other hand applies only to the stone breaking or stone crushing operations carried on in mines and it does not cover other operations connected with the manganese mining works
This position is inconsistent with the scheme of the Schedule and that is a point which prima facie is in favour of the appellant s contention
It is however urged by Mr Umrigar for the respondents that the word  employment  as well as the word  stone  used in item 8 should receive their widest denotation and that according to him would include stone breaking or stone crushing operations 485 carried on in mines
It is conceded that stone breaking or stone crushing operations have to be carried on in regard to the work in manganese mines
Stones are beaten to small pieces by means of a hammer and they are washed and passed through sieves of different meshes before manganese is obtained
When the Schedule refers to the employment of stone breaking or stone crushing does it refer to the incidental stone breaking or stone crushing in connection with manganese mine operations  In a chemical or a geological sense stones may include manganese and that is one of the meanings given to the word in the Shorter Oxford Dictionary
On the other hand the word  stone  as popularly understood in ordinary parlance particularly when it is coupled with the word  breaking  or  crushing  would exclude manganese
When we speak of stone breaking or stone crushing normally we refer to stone in the sense of piece of rock and that would exclude manganese
Employment in stone breaking or stone crushing in this sense would refer to quarry operations
Thus whether or not the word  stone  should be understood in the wider sense or in a limited sense must depend upon the context in which the word is used
The intention which is reasonably deducible from the context would decide whether it is the expanded meaning or the limited meaning of the word that can be accepted
The same consideration could apply to the denotation of the word  employment We have carefully considered all the items in the Schedule and have taken into account the general beneficent policy of the Act but we are unable to hold that when item 8 refers to stone breaking or stone crushing it is intended to cover the breaking or the crushing of stones incidental to the manganese mining operations
The context seems to exclude the application of the wider meaning of the word  stone  used in item 8
Therefore our conclusion is that the stone breaking or stone crushing operations which are carried on in mines are not included in item 8 in the Schedule and if that be the true position the impugned notification issued by the State Government under section 52 is ultra vires 62 486 The High Court has referred to the fact that in describing some items in Part I the word  any  has been used whereas the said word has not been used in item 8
For instance item I refers to employment in any woollen carpet making or shawl weaving establishment whereas item 8 merely refers to employment in stone breaking and stone crushing
The absence of the word  any  according to the High Court indicates that the word stone as well as the word  employment had been used in their wide denotation
We are not satisfied that this conclusion is right
In fact it appears to us that if the word  any had been used in item 8 it might have helped to make its scope wider that is to say if item 8 bad read as  employment in any stone breaking or any stone crushing operations  it might have tended to make its scope wider
As it stands the entry is in our opinion confined to Stone breaking and stone crushing employment in quarries and not in mines
As we have already pointed out a notification under section 52 can be issued only in respect of employments which fall under the Schedule
We would however like to add that this conclusion merely helps to emphasise the fact that the appropriate government may and can act under section 27 of the Act if it is desired that the employment in mines or in connection with any operations incidental to mining should be governed by the provisions of the Act
Section 27 empowers the appropriate government to add items to the Schedule and it would be open to the appropriate government to adopt such a course if it is intended to achieve the object with which the impugned notification has been issued
One more point still remains to be considered
Mr Umrigar attempted to argue that the appellant cannot challenge the vires of the impugned notification without challenging the vires of the delegation of authority effected by the notification issued by the President of India under article 258 of the Constitution
The argument is that if the notification of the President is valid then the State Government has merely exercised its authority as a delegate and its validity cannot be challenged in isolation from the principal 487 or parent notification which conferred the authority on the State Government
This contention has obviously not been raised before the High Court
Besides if the State Government purports to take action on the strength of the impugned notification which is invalid it would be open to the appellant to resist the threatened action on the ground that the notification is invalid and no action can be validly taken against the appellant for the contravention of the provisions of the Act
As this Court has observed in A Thangal Kunju Musaliar vs M Venkitachalam Potti 1  there can be no agency in the matter of a commission of a wrong
The wrong doer would certainly be liable to be dealt with as a party directly responsible for his wrongful action and it was added that  on the analogy of a civil wrong the tortfeasor could certainly not protect himself against the liability on the ground of having committed the tort under the directions of his principal and so the agent could in no event exculpate himself from the liability for the wrongful act done by him and if he is amenable to the jurisdiction of the High Court the High Court could certainly issue an appropriate writ against him under article 226
By parity of reasoning it would follow that if the impugned notification issued by the State Government is ultra vires it cannot fall back upon the President s notification in support of the plea that the action which it proposes to take against the appellant would nevertheless be justified
We must accordingly hold that it is open to the appellant to claim a writ against the respondents oven without challenging the vires of the Presidential notification
In the result we hold that the impugned notification issued by respondent 2 is invalid and cannot be enforced
The appeal is accordingly allowed the order passed by the High Court set aside and the application for a writ made by the appellant allowed with costs throughout
Appeal allowed
1  1211


Summary:
The assessees were carrying on business in Bhavnagar which was formerly an Indian State
In 1948 Bhavnagar became part of the United State of Saurashtra and on March 16 1949 the Saurashtra Income tax Ordinance was promulgated
For the purpose of calculating the depreciation allowance to which the assessees were entitled in computing the profits or gains of the business the written down value of the building machinery etc had to be ascertained in accordance with the provisions of the Ordinance
Section 135 b of the Ordinance provided that the written down value meant in the case of assets acquired before the previous year the actual cost to the assessee less all depreciation actually allowed to him under this Ordinance or  which would have been allowed to him if the Indian Income tax 1 AIR  was in force in the past
For the assessment year 1949 50 as the assets of the assessees had been acquired before the previous year the Income tax Officer in ascertaining the written down value deducted the depreciation which would have been allowable under the Indian Income tax Act 1922 if it had been in force and a claim had been made supported by the prescribed particulars
The assessees claimed that on the wording of it section 135 b of the Ordinance did not enable the Income tax Officer to make the deduction as in fact no claim was made or could be made for such allowance
For the assessment year 1951 52 as by that time Saurashtra had become a Part B State of the Union of India and the Indian Income tax Act 1922 had been extended to it the Income tax Officer applied the provisions of section 105 b of the Indian Income tax Act read with para 2 of the Taxation Laws Part B States Removal of Difficulties Order 1950 while computing the written down value and deducted not only the depreciation allowed in the assessment year 1950 51 under the Indian Income tax Act and the depreciation allowed in the assessment year 1949 50 under the Saurashtra Income tax Ordinance but also the deprecia tion availed of in the previous years by the assessees under the Bhavnagar War Profits Act
Paragraph 2 of the Removal of Difficulties Order of 1950 provided In making any assessment under the Indian Income tax Act 1922 all depreciation actually allowed under any laws or rules of a Part B State relating to income tax and super tax or any law relating to tax on profits of business shall be taken into account in computing the written down value under section 105 b of the Act
The assessees contended that it was only when a difficulty was actually experienced in giving effect to the Act that the provision of the Order could come into operation in a particular case and as no such difficulty was actually experienced the said provision had no application and that in any case as the Bhavnagar War Profits Act was not a law of the Part B State para 2 of the Order was not applicable
Heldi On the true construction of section 135b of the Saurashtra Income tax Ordinance the words which would have been allowed to him in that sub section meant which should have been allowed if proper claim had been made and that in ascertaining the written down value the depreciation that would have been allowed if proper claim had been made if the Indian Income tax Act 1922 which was not in force in the State before had been in force should be deducted
Commissioner of Income tax vs Kamala Mills Ltd and Rajaratna Naranbhai Mills Ltd vs Commissioner of Income tax  distinguished
iiIt was for the Central Government to determine if any difficulty had arisen in giving effect to the provisions of the Indian 218 income tax Act 1922 and then to make such order as appeared to it necessary to remove the difficulty that once the order was made it operated under its own terms and that in giving effect to the order it was not necessary for the Income tax Officer to examine first in any particular case whether any difficulty had arisen
Accordingly para 2 of that Taxation Laws Part B States Removal of Difficulties Order 1950 was applicable
Commissioner of Income tax vs Dewan Bahadur Ram Gopal Mills Ltd 19611 2 SCR 318 followed
iiiThe Bhavnagar War Profits Act was a law within the words  any law relating to tax on profits of business in para 2 of the Removal of Difficulties Order of 1950