Case: Bidi, Bidi Leaves Vs. The State Of Bombay

help to validate the impugned clauses in the notification.*Craies on Statute Law, p. 239.**Maxwell on Interpretation of Statutes, 10th ed., p. 361.21. The respondent strenuously contends that clauses I and 2. of the notification which have prescribed the minimum rates of wages per 1000 bidis would become ineffective unless cls. 3 to 7 supplement them. The argument is that by improper or dishonest exercise of the power conferred on the employer by the contract of employment to discard chhat bidis the employees would be cheated of their legitimate due wages under cls. 1 and 2 and so, in order to make the provisions of cls. 1 and 2 effective some subsidiary provisions had to be made for settling the dispute between the employer and his workmen in regard to chhat bidis. As we have already observed, the grievance made by the employees on the score of improper rejection of bidis may in many cases be well-founed; but the seriousness of the said grievance and the urgent 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 power. The definition of the term "wages" postulates the binding character of the other norms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act. When the said other terms of the contract are outside the scope of the Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers?22. Besides, in this connection it is also necessary to bear in mind the provisions of Ss. 20-21 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 employee can make a claim in that behalf and the same would be tried under Ss. 20-21.Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 prescribed the revised minimum rates of wages. It, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by S. 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 notification.23. 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 case all that S. 5 requires is the fixation of minimum rates of wages, and that has been done by the notification by cls. 1 and 2. What the subsidiary clauses purport to do is to make the enforcement of the fixed rate effective by providing for a machinery to deal with the possible disputes arising between the parties as a result of the practice of discarding chhat bidis. In other words, cls. 1 and 2 fix the minimum rates of wages and thus S. 5 has been complied with and enforced. The remaining clauses purport to make the implementation of the provisions of cls. 1 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 of wages under S. 5. A power may be implied, if necessary, in discharging the duty imposed upon the appropriate Government or in exercising the power conferred on the State Government in the matter of fixing or revising the minimum rates of wages; but surely no power can be implied for making effective the implementation of the notification issued under the said power or in the discharge of the said duty. The purpose of the Act cannot be said to have failed after the minimum rates of wages are prescribed 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 adjudicated upon under Ss. 20 and 21 or under other provisions of the law. It is true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside 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 reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred 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 cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Thus, 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 which are rejected. It is also not disputed that the bidis which are rejected by the employer, otherwise known as "chhats" are retained by the employer though he refuses to take them into account in the matter of payment to the workers on the ground that they do not come up to the standard of skill or quality prescribed by the contract.It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them, such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of Bharat Bank Ltd. Delhi, 1950 SCR 459     at p. 513 : (AIR 1950 SC 188   at. p. 209) 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 considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay, AIR 1949 FC 111 :1949 FCR 321 it has been repeatedly held that the jurisdiction of industrial tribunals is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, 1956 SCR 800  : (S) AIR 1957 SC 1  ), Patna Electric supply Co. Ltd., Patna v. Patna Electric Supply Workers Union, 1959 Supp. (2) SCR 761: (AIR 1959 SC 1035  )). Indeed, during the last ten years and more industrial adjudication in this country has made so much progress in determining industrial disputes arising between industries of different kinds and their employees that the jurisdiction and authority of industrial tribunals to deal with such disputes with the object of ensuring social justice is no longer seriouslywould be the amount to which the employee is entitled if the other terms of the contract are performed ? That is the question which has to be asked in determining what the term "wages" means under S. 2(h). No doubt Ss. 3, 4 and 5 authorise the appropriate Government to fix the minimum rates of wages. In other words, if the wages fixed by a contract which is either express or implied are found to below authority is conferred on the appropriate Government to increase them so as to bring them to the level of what the said. Government regards as the minimum wages in the particular scheduled employment in the particular area concerned. This means that power is conferred on the appropriate Government to modify one term of the contract express 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 work done by the employee the employer has agreed to pay him either expressly or by implication a certain amount of wages the appropriate Government can issue a notification and prescribe that for the said work done under the contract the employer must pay 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.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 does not operate on the other terms of the contract between the employer and the employee. That is the basic approach which must be adopted in determining the scope and effect of the powers conferred on the appropriate Government by the relevant provisions of the statute authorising it to prescribe minimum rates of wages or to revise them. What the appropriate Government is authorised to do is to prescribe, fix or revise wages and wages are defined to be remuneration payable to the employees if the terms of the contract of employment, express or implied, were fulfilled. This definition runs, as it inevitably must, through the material provisions of the Act and its importance cannot therefore beother words, the doctrine of implied powers can 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 auxiliary or incidental power is assumed to exist. In such a case,, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied. This position in regard to the scope and effect of the doctrine of implied Powers is not seriously in dispute before us. The parties are at issue, however, on the question as to whether the doctrine of implied powers can help to validate the impugned clauses in the notification.Besides, in this connection it is also necessary to bear in mind the provisions of Ss. 20-21 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 employee can make a claim in that behalf and the same would be tried under Ss. 20-21.Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 prescribed the revised minimum rates of wages. It, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by S. 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in theis true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside 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 reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred 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 cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses.