Case: The Edward Mills Co. Ltd., Beawar, And Others Vs. The State Of Ajmer And Another

1. 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 appellant 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 7th of October 1952, issued by the State Government of Ajmer fixing the minimum rates of wages in respect of employment in the textile industry within the State, under the provisions of the Minimum Wages Act (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.2. 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 Minimum Wages Act, 1948, 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 specified, under two parts, employments in respect of which the minimum wages of the employees can be fixed; and section 27 authorizes the "appropriate Government", after giving three months notice of its intention to do so, to add to either part of the schedule, and other employment, in respect of which it is of the opinion that minimum rates of wages should be fixed under the Act.Act.7. 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 them. On the 16th of March, 1949, the Central Government issued a notification, in exercise of its powers under section 94(3) of the Government of India Act, 1935, directing that the functions of the "appropriate Government" under the Minimum Wages Act, would, in respect of every Chief Commissioners Province, be exercised by the Chief Commissioner.On the 17th March, 1950, the Chief Commissioner of Ajmer, purporting 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 10 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 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.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 representatives of the employers, four of the employees and two independent members, one of whom Sri 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 16 of July, 1952. The first meeting of the committee was held on the 29th February, 1952. The expert members 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 May, 1952, he wrote a letter to the Chief Commissioner stating that he was proceeding to Europe on the 3rd 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 that 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 July, 1952. On the 20th August 1952, the Chairman of the Committee informed the Chief Commissioner that Shri Annigeri had ceased to be a member of the committee by reason of his failing to attend three consecutive meetings. He had also desired that his letter to the Chief Commissioner dated 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 terms of the committee up to the 20th 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 be sent to Shri Annigeri as desired by him. It appears that some time after the 14th September, 1952, the Chairman himself took the papers to Nagpur where Shri Annigeri was staying and a draft final report was prepared by the Chairman in consultation with the expert member and both of them signed the report at Nagpur. The report was placed before the other members on the 4th October, 1952, and on the 7th of October, following, a notification was issued fixing minimum rates of wages for the employees in the 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 September, 1952.10. 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 November, 1952. Both the petitions were heard together and a common judgment was passed by the Judicial Commissioner on the 16th 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,has been stated already, the Central Government issued a notification on the 16th of March, 1949, under section 94(3) of the Government of India Act, directing that the function of the "appropriate Government" under the Minimum Wages Act would, in respect of any Chief Commissioners Province, be exercised by the Commissioner.There was no such delegation of authority however under article 239 of the Constitution after the Constitution came into force.

Reasoning:
16. The contention does not appear to us to be sound. A complete reply to this argument is furnished, in our opinion, by the provisions of clauses (1) and (2) of article 372 of theclause (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 372(1) and could be adapted under the second clause of that article.The first point does not impress us much and we do not think that there is any material difference between "an existing law" and "a law in force". Quite apart from article 366(10) of the Constitution, the expression "Indian law" has itself been defined in section 3(29) of the General Clauses Act as meaning any Act, ordinance, regulation, rule, order, orwhich before the commencement of the Constitution had the force of law in any province of India or part thereof. In our opinion, the words "law in force" as used in article 372 are wide enough to include not merely a legislative 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 that the order made by thein the present case under section 94(3) of the Government of India Act is a mere executive order.19. Part IV of the Government of India Act, 1935, which begins with section 94, deals with Chief Commissioners Provinces and(3) lays down how a Chief Commissioners Province shall be administered. It provides that it shall be administered by theacting through a Chief Commissioner to such extent as he thinks fit. An order made by theunder section 94(3) 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 to that province. In our opinion 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 in force under clause (1) of the article.20. 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,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 provisions iswith 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 94(3) of the Government of India Act should be reckoned now as an order made under article 239 of the Constitution and we are unable to agree with Mr. Chatterjee that it was beyond the competence of the President under clause (2) of article 372 to make the adaptation order mentioned above. The first contention of Mr. Chatterjee therefore fails.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 andwas said by OConnor 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 on ancillary measure.25.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 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.26. 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 any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee cannot therefore succeed.27.The third and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Commissioner 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 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.28. 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. Theonly 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.29. 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 of 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.