PETITIONER:
THE EDWARD MILLS CO. LTD., BEAWAR, AND OTHERS
Vs.
RESPONDENT:
THE STATE OF AJMER AND ANOTHER.
DATE OF JUDGMENT:
14/10/1954
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
AIYYAR, T.L. VENKATARAMA
MAHAJAN, MEHAR CHAND (CJ)
BOSE, VIVIAN
JAGANNADHADAS, B.
CITATION:
1955 AIR 25 1955 SCR (1) 735
CITATOR INFO :
R 1960 SC 424 (10)
RF 1961 SC 4 (5,25)
RF 1961 SC 298 (12)
F 1962 SC 12 (11)
RF 1962 SC 97 (6)
R 1964 SC 648 (17,4)
R 1964 SC 980 (8)
R 1964 SC1260 (6)
RF 1966 SC1788 (38)
RF 1967 SC 669 (29)
RF 1967 SC 691 (66)
R 1970 SC2042 (10)
R 1974 SC1044 (6)
E 1980 SC 350 (5)
RF 1982 SC 149 (803)
D 1986 SC 872 (110)
R 1990 SC 560 (13)
ACT:
Constitution of India, Art. 372-Words "law in force"-
Meaning of- Whether include regulation or order having the
force of law --An order made under s. 94(3) of the
Government of India Act, 1935 -Whether "law in force" and
capable of adaptation-Minimum Wages Act, 1948 (Act XI of
1948), s. 27-"Appropriate Government" -Given power to add to
either part of schedule-Any employment in respect of which
minimum rates of wages should be fixed-Whether such power
warranted and not unconstitutional and within the limits of
permissible delegation-Advisory committee-Appointment of-
Under s. 5 of the Act-Extension of its term beyond the
period already expired-Validity-Proceduraral irregularities-
Wlhether vitiate the final report.
736
HEADNOTE:
The words 'law in force' as used in Art. 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 s. 94(3) 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 Art. 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 s. 94(3) of
the Government of India Act, 1935, should be reckoned now as
an order made under Art. 239 of the Constitution and it was
within the competence of the President under clause (2) of
Art. 372 to make the adaptation order.
Under s. 27 of the Minimum Wages Act, 1948, 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 s. 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 s. 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 s. 30 of the Act
empowers the State Government to fix the term of the
committee appointed under s. 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 v. Ah Way (8 C.L.R. 626) and Reg. v. Burah (3
App. Cas. 889) referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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.
N.C. 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).
H.N. 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).
1954. 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 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.
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 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 2(b) 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 1,000 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 94(3) of the
Government of India Act, 1935, directing that the functions
of the “appropriate Government” tinder the Minimum Wages
Act, 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 Minimum Wages Act. 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 Minimum Wages Act itself on
the ground that its provisions conflicted with the
fundamental rights of the appellants and its employees
guaranteed under article 19(1) (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 2(b) (ii) of the
Minimum Wages Act 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 3(60) 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 94(3) 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 3(8)
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 94(3) of the Government of
744
India Act, 1935. Article 239 of the Constitution which
corresponds to section 94(3) 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 3(8 ) (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 94(1) 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 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 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 3(8)
(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 2(b) (ii) of the
Minimum Wages Act. The Government of India Act, it is said,
stands repealed by article 395 of the Constitution. An
order issued under section 94(3) 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 372(1) 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 94(3) 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 366(10) 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 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, 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 94(3)
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 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.
Coming now to the second point. Mr. Chatterjee points
out that the preamble to the Minimum Wages Act 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 v.
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) 8 C.L.R. 626 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 v. 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. Cas. 889.
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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.
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