Appeals Nos 138 and 139 of 1954
Appeals under articles 132 and 133 of the Constitution of India from the Judgment and Order dated the 16th February 1953 of the Court of Judicial Commissioner Ajmer in Civil Miscellaneous Petitions Nos 260 and 263 of 1952
NC Chatterjee B D Sharma and Naunit Lal with him for appellants Nos 1 and 2 in C A No 138 of 1954 Edward Mills and Krishna Mills
Achhru Ram B D Sharma and Naunit Lal with him for appellant No 3 in C A No 138 of 1954 Mahalaxmi Mills
HN Seervai J B Dadachanji and Rajinder Narain for the appellant in C A No 139 of 1954
C K Daphtary Solicitor General of India M M Kaul and P G Gokhale with him for respondent No 2 Union of India
October 14
The Judgment of the Court was delivered by MUKHERJEA J
These two appeals are directed against a common judgment dated the 16th of February 1953 passed by the Judicial Commissioner of Ajmer on two analogous petitions under article 226 of the Constitution in one of which the appellants in Appeal No 138 of 1954 were the petitioners while the other was filed by the appellant in Appeal No 139 of 1954
The petitioners in both the cases prayed for a declaration that the notification dated the 7th of October 1952 issued by the State Government of 738 Ajmer fixing the minimum rates of wages in respect of employment in the textile industry within that State under the provisions of the Act XI of 1948 was illegal and ultra vires and for issue of writs in the nature of mandamus directing the respondents not to enforce the same against the petitioners
To appreciate the points that have been canvassed before us it will be convenient to narrate briefly the material facts in chronological order
On the 15th of March 1948 the Central Legislature of India passed an Act called The  the object of which as stated in the preamble is to provide for fixing minimum rates of wages in certain employments
The schedule attached to the Act specifies under two parts the employments in respect of which the minimum wages of the employees can be fixed and section 27 authorises the appropriate Government after giving three months  notice of its intention to do so to add to either part of the schedule any other employment in respect of which it is of the opinion that minimum rates of wages should be fixed under the Act
The expression appropriate Government as defined in section 2b means in relation to a scheduled employment other than one carried by or under the authority of the Central Government the State Government  Under section 3 the appropriate Government is to fix minimum wages payable to employees employed in any employment specified in the schedule at the commencement of the Act or added to it subseq uently in accordance with the provisions of section 27
Sub section 1 a of this section provides inter alia that the appropriate Government may refrain from fixing the minimum rates of wages in respect of any scheduled employment in which there are in the whole State less than 1000 employees engaged in such employment
Section 5 lays down the procedure for fixing minimum wages
The appropriate Government can appoint a committee to hold enquiries to advise it in the matter of fixing minimum wages in the alternative it can by notification in the official public gazette publish its proposals for the information of persons likely to be affected thereby
After 739 considering the advice of the committee or the representations on the proposals as the case may be the appropriate Government  shall fix the minimum rates of wages in respect to any scheduled employment by notification in the official gazette and such rates would come into force on the expiry of three months from the date of issue unless the notification directs otherwise
Section 9 provides inter alia that an advisory committee constituted under section 5 shall consist of persons nominated by the appropriate Government
There shall be in the committee an equal number of representatives of the employers and the employed in any scheduled employment and there shall be independent persons as well not exceeding one third of the total number one of whom shall be appointed Chairman
Section 30 confers on the appropriate Government the power to make rules for carrying out the purposes of the Act
It may be mentioned at the outset that Part I of the schedule to the Act mentioned only 12 items of employment at the time when the Act was passed and employment in the textile industry was not included in Chem
On the 16th of March 1949 the Central Government issued a notification in exercise of its powers under section 943 of the Government of India Act 1935 directing that the functions of the appropriate Government tinder the  would in respect of every Chief Commissioner s Province be exercised by the Chief Commissioner
On the 17th March 1950 the Chief Commissioner of Ajmer purport ing to act as the appropriate Government of the State published a notification in terms of section 27 of the Act giving three months  notice of his intention to include employment in the textile mills as an additional item in Part I of the schedule
On the 10th of October 1950 the final notification was issued stating that the Chief Commissioner had directed that the employment in textile industry should be added in Part I of the schedule
On the 23rd November 1950 another notification was published under the signature of the Secretary to 740 the Chief Commissioner containing the rules purporting to have been framed by the Chief Commissioner in exercise of his powers under section 30 of the Act
Out of these only rules 3 8 and 9 are material for our present purpose
Rule 3 provides that the term of office of the members of an advisory committee shall be such as in the opinion of the State Government is 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 circumstances 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 Commissioner in regard to the fixation of minimum wages relating to the textile industry within the State
Ten members were nominated consisting of four represeiitatives 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 and 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 bare subsistence of life but 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 741 May 1952 he wrote a letter to the Chief Commissioner stating that he was proceeding to Europe on the 3rdd June 1952 for a period of three months
He expressed  his willingness to assist the Chairman in the preparation of the report after he came back from Europe by the first week of September next provided the term of the committee was extended
If however that was not 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 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 Commissioner 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 resolution passed was that all relevant papers might besent 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 95 742 minimum rates of wages for the employees in the textile industry in the State of Ajmer under the signature of the Secretary to the Chief Commissioner and stating that these rates should be deemed to be in force from the 1st of September 1952
Feeling aggrieved by this notification the three 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 together 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 notification of the 7th of October 1952 and the State of Ajmer was restrained from enforcing the notification from any date earlier than the 8th 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 
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 delegation of legislative powers by the Legislature in favour of the appropriate Government as defined in the 743 Act
The third and the last contention is that the Chief Commissioner had no authority to extend retrospectively the term of the Advisory Committee after it expired on the 16th of July 1952
Mr Seervai who appeared in support of the other appeal adopted all these arguments on behalf of his client
He however raised some additional points impeaching the constitutional validity of the itself on the ground that its provisions conflicted with the fundamental rights of the appellants and its employees guaranteed under article 191 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 mentioned 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 2b ii of the to mean 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 defined in section 360 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 commencement of the Constitution under section 943 of the Government of India Act 1935 a chief commissioner s Province could be administered by the GovernorGeneral acting to such extent as he thought fit through a Chief Commissioner to be appointed by him in his discretion and under section 38 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 943 of the Government of 744 India Act 1935
Article 239 of the Constitution which corresponds to section 943 of the Government of India Act though it is much wider in scope provides that a State specified in Part C of the First Schedule shall be administered by the President acting to such extent 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
Agreed to this constitutional provision section 38  b ii Of the General Clauses Act as amended by the Adaptation Laws Order 1950 lays down that the expression 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 941 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 943 of the Government of India Act directing that the function of the appropriate Government under the would in respect of any Chief Commissioner s Province be exercised by the Chief Commissioner
There was no such delegation of authority 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 38 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 2b ii of the 
The Government of India Act it is said stands repealed by article 395 of the Constitution
An order issued under section 943 of the Government of India Act cannot possibly be operative after the inauguration 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 745 opinion by the provisions of clauses 1 and 2 of article 372 of the Constitution
Article 372 runs as follows 372
1 Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution 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 the 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 continuance 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 adaptation 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 commencement of the Constitution would continue under article 3721 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 by the Central Government under section 943 of the Government of India Act could not be regarded as a law in force within the meaning of article 372
A distinction is sought to be made by the learned counsel between an existing law as defined in article 36610 and a law in force and it is argued that though an order can come within the definition 746 of existing law it cannot be included within the expression law in force as used in article 372
It is argued next that even if the word law is wide enough to include an order that order must be a legislative and not a mere executive order promulgated by an administrative authority and in support of this contention the learned counsel has relied on a number of cases decided 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 36610 of the Constitution the expression Indian law has itself been defined in section 329 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 out opinion the words law in force as used in article 372 are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law
We agree with Mr Chatterjee that an order must be a legislative and not an executive order before it can come within the definition of law
We do not agree with him however to  at the order made by the Governor General in the present case under section 943 of the Government of India Act is a mere executive order
Part IV of the Government of India Act 1935 which begins with section 94 deals with Chief Commissioners  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 Commissioner to such extent as he thinks fit
An order made by the Governor General under section 943 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 747 Constitution would continue to be in force under clause 1 of the article
Agreeably to this view it must also be held that such order is capable of adaptation to bring it in accord with the Constitutional provisions under clause 2 of article 372 and this is precisely what has been done by the Adaptation of Laws Order 1950
Paragraph 26 of the Order runs as follows Where 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 supplementing that act immediately before the appointed day and such provision is re enacted with or without modifications 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 authority under the said provision of the Constitution and may be varied or revoked accordingly
 Thus the order made under section 943 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 mentioned above
The first contention of Mr Chatterjee therefore fails
Coming now to the second point
Mr Chatterjee points out that the preamble to the as well as its title indicate clearly that the intention 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 employments and it is in respect to the scheduled employments 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 748 thereupon the schedule shall in its application to the State be deemed to be amended accordingly
It is argued that the Act nowhere formulates a legislative policy according to which an employment shall be chosen for being included in the schedule
There are no principles 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 Government 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 legislative function and cannot be held valid
There is undoubtedly an element of delegation implied 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 vs Ah Way 1 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 extended or the particular class of persons or goods to which it shall be applied
 The facts of this Australian case in material features bear a striking resemblance to those of the present one
The question raised in that case related to the validity of certain provisions of the Customs Act of 1901
The Act prohibited the importation of certain goods which were specifically mentioned and then gave power to the Governor General in Council to include by 1  at 637
749 proclamation other goods also within the prohibited list
The validity of the provision was challenged on the ground of its being an improper delegation of legislative powers
This contention was repelled and it was held that this was not a case of delegation of legislative power but of conditional legislation Of the type which was held valid by the Privy Council in the case of Reg vs 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 extended 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 places and it was left to the executive only to determine 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 specifically 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 necessary to the exercise of a power is included in the grant of the power
A Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority
The primary duty of law making 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 legislative policy he says is not discernible anywhere in the 1 3 App
96 750 provisions of this Act and consequently there is no standard or criterion to guide the administrative authority in the exercise of the subsidiary legislative powers
We do not think that this is the correct view to take
The legislative policy is apparent on the face of the present enactment
What it aims at is the 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 arrangements for effective regulation of wages or for other causes 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 expediency 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 administration of a particular State
It is to carry out effectively the purpose 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 anyway 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 third 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 Advisory Committee till the 20th of September 1952
It is argued that the term of the committee as originally 751 fixed expired on the 16th of July 1952 and on and from the 17th of July all the members of the committee became functus officio
The Commissioner therefore was not competent to give a fresh lease of life to the committee which was already dead
We do not think that there is much substance in this contention
Rule 3 of the rules framed under section 30 of the Act 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 extension of time in an arbitration proceeding after the award was filed and an award 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 Government is not bound to accept any of its recommendations
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


Summary:
The words law in force  as used in article 372 of the Consti tution are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law
An order made by the Governor General under section 943 of the Government of India Act 1935 investing the Chief Commissioner with the authority to administer a province is really in the nature of a legislative provision which defines the rights and powers of the Chief Commissioner in respect of that province
Such an 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 inforce under clause 1 of the article
Such an order is capa ble of adaptation to bring it in accord with the constitutional provisions and this is precisely what has been done by the Adaptation of Laws Order 1950
Therefore an order made under section 943 of the Government of India Act 1935 should be reckoned now as an order made under article 239 of the Constitution and it was within the competence of the President under clause 2 of article 372 to make the adaptation order
Under section 27 of the  power has been given to the appropriate Government to add to either part of the schedule any employment in respect of which it is of opinion that minimum wages shall be fixed by giving notification in a particular manner and thereupon the scheme shall in its application to the State be deemed to be amended accordingly
There is an element of delegation implied in the provisions 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 is not unwarranted and unconstitutional and it does not exceed the limits of permissible delegation
The legislative policy is apparent on the face of the present enactment
What it aims at is the statutory fixation of minimum wages with a view to obviate the chances of exploitation of labour
It is to carry out effectively the purposes of the 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
Therefore in enacting section 27 the legislature has not 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
Rule 3 of the rules framed under section 30 of the Act empowers the State Government to fix the term of the committee appointed under section 5 of the Act and to extend it from time to time as circumstances require
The period originally fixed had expired and its term was extended subsequently
It did not function and submitted no 737 report during the period
Assuming that the subsequent order could not revive a committee which was already dead a new committee could be held to have been constituted and the report submitted by it would be a perfectly good report
Apart from this a committee is only an advisory body and procedural irregularities of this character could not vitiate the final report which fixed the minimum wages
Baxter vs Ah Way  and Reg
vs Burah 3 App
Cas 889 referred to