{"id":127614,"date":"1962-11-09T00:00:00","date_gmt":"1962-11-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohmedalli-and-others-vs-union-of-india-and-another-on-9-november-1962"},"modified":"2016-05-22T18:48:56","modified_gmt":"2016-05-22T13:18:56","slug":"mohmedalli-and-others-vs-union-of-india-and-another-on-9-november-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohmedalli-and-others-vs-union-of-india-and-another-on-9-november-1962","title":{"rendered":"Mohmedalli And Others vs Union Of India And Another on 9 November, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohmedalli And Others vs Union Of India And Another on 9 November, 1962<\/div>\n
Equivalent citations: 1964 AIR 980, \t\t 1963 SCR Supl. (1) 993<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nMOHMEDALLI AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ANOTHER\n\nDATE OF JUDGMENT:\n09\/11\/1962\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSINHA, BHUVNESHWAR P.(CJ)\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n 1964 AIR  980\t\t  1963 SCR  Supl. (1) 993\n CITATOR INFO :\n R\t    1979 SC 607\t (8)\n R\t    1979 SC1803\t (41)\n RF\t    1991 SC1289\t (10)\n\n\nACT:\nProvident  Fund-Constitutional\tvalidity  of  enactment\t and\nscheme\tframed\tthereunder-Employees' Provident\t Funds\tAct,\n1952  (19  of 1952) as amended by Act 46 of 1960,  ss.\t1(3)\n(b), 16,17-Constitution of India, Art. 14.\n\n\n\nHEADNOTE:\nBy a notification issued by the Central Government under  s.\n1  (3) (b) of the Employees' Provident Funds Act,  1952\t the\npetitioners'  restaurant  was brought under the Act.   By  a\nfurther\t notification under s. 5 read with s. 7 (1)  of\t the\nAct,  the  Employees'  Provident  Fund\t(Second\t  Amendment)\nScheme,\t 1961, was introduced.\tThe  petitioners  challenged\nthe  constitutional  validity  of the said  scheme  and\t the\nsections  under\t which\tit was made  and  applied  to  their\nrestaurant.   It  was  urged that s. 1 (3) (b)\tof  the\t Act\nconferred   uncontrolled  and  uncanalised,  power  on\t the\nGovernment,  that  the\tAct had application  only  to  wage-\nearners and not to salaried employees as those, employed  in\nthe   petitioners'  restaurant\tand  that  the\tscheme\t was\ndiscriminatory\t and  therefore\t hit  by  Art.\t14  of\t the\nConstitution.\nHeld, that whether or not a particular piece of\t legislation\nsuffers from excessive\t   delegation has to  be judged on a\nconsideration  of the\t   facts and circumstances that\t led\nto   the  enactment of the impugned statute. If the Act\t and\nits   preamble\tdo  not\t clearly  indicate  the\t  underlying\nprinciples     or  the\tcriteria for  its  application,\t the\ninevitable conclusion must be that the delegate is entrusted\nnot  merely  with  the function of  applying  the  law,\t but\nsubstantially with the legislative power itself.  So judged,\nit  could  not be said that the power entrusted\t to  Central\nGovernment  to bring by notification such establishments  as\nit  thought fit within the purview of the impugned  Act\t was\nuncontrolled or uncanalised.\nThe  Edward  Mills Co. Ltd.  Beawar v. The State  of  Ajmer,<\/a>\n[1955]\t1  S.  C. R. 735,  Vasantlal  Maganbhai\t Sanjanwala,\n[1951) 1 S. C. R. 341 and Hamdard Dawakhana Wakf) Lal  Kuan,\nDelhi  v. Union of India,<\/a> [1960] 2 S. C. R(W. 671,  referred\nto.\n994\nThe  Act makes no distinction between wages and salary.\t  In\nprinciple there is no difference between the two and it\t was\nnot correct to say that the Act was not intended to apply to\nsalaried  employees, if by salary was meant  fortnightly  or\nmonthly wages running into hundreds per month.\nThe Act was not discriminatory and did not infringe Art. 14.\nIt applied to all establishments since s. 16 was amended  by\nAct  46\t of  1960 except .those\t registered  under  the\t Co-\noperative  Societies Act, 1912, and those newly set up\ttill\nthe  expiry  of three or five years.  As was  held  by\tthis\nCourt  co-operative societies stood on a  different  footing\nfrom other establishments.  Exemption under s. 17 also could\nnot   be  said\tto  be\tdiscriminatory.\t  The\tpetitioners'\nestablishment,\twhich came within the notification, was\t not\ntherefore, discriminated against.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Petition No. 56 of 1962.
\n(Under\tArticle\t 32  of the Constitution of  India  for\t the
\nenforcement of Fundamental Rights).\n<\/p>\n
N.   C.\t Chatterji,  S.\t K. Kapur and K. K.  Jain,  for\t the
\nPetitioners.\n<\/p>\n
H.   N. Sanyal, Additional Solicitor General of India, M. S.
\nK. Sastri and R. H. Dhebar, for the Respondents.
\n1962.\tNovember 9. The judgment of the Court was  delivered
\nby
\nSINHA,\t C.   J This  petition,\t under\tArt.  32   of\tthe
\nConstitution, challenges the vires of certain provisions  of
\nthe  Employees’\t Provident  Funds Act  (19  of\t1952)  which
\nhereinafter  will be referred to as the Act, and the  scheme
\nframed\tthereunder.  The respondents to this petition I\t are
\nthe   Union  of\t India\tand  the  Regional  Provident\tFund
\nCommissioner.\n<\/p>\n
The  petition is founded on the following allegations.\t The
\npetitioners,  5\t in number, are citizens of  India  and\t are
\ncarrying  on  business of running a restaurant\tand  general
\nstores under the name and style of “Messrs George Restaurant
\nand Stores” at
\n 995<\/span>
\n20,  Appollo Street, Fort, Bombay-1, since September,  1958.
\nThey  are.  running  this business as  a  partnership  firm,
\nregistered  under  the\tIndian Partnership  Act.   The\tfirm
\nemploys\t 43 persons, including cooks,  waiters,\t tea-makers,
\nbill clerks and two store-clerks.  Besides paying salary  to
\ntheir  employees, the  petitioners give them free  food\t and
\nother personal allowances, which it is not necessary to\t set
\nout  in detail.\t In exercise of the powers conferred  by  s.
\n1(3)(b)\t of  the  Act, the  General  Government\t issued\t the
\nnotification  No.  G.S.R. 704, dated May 16,  1961,  in\t the
\nfollowing terms:\n<\/p>\n
\t      “G.S.R.  704–In exercise of the ,powers\tcon-
\n\t      ferred  by  Clause  (b) of  sub-section  3  of
\n\t      Section  1  of the Employees’  Provident\tFund
\n\t      Act, 1952 (19 of 1952), the Central Government
\n\t      hereby directs that. with effect from June 30,
\n\t      1961,  the  said\tAct  shall  apply.  to\t the
\n\t      following\t classes of establishments, in\teach
\n\t      of which twenty or more persons are  employed,
\n\t      namely
\n\t      i. Hotels.\n<\/p><\/blockquote>\n
\t      ii. Restaurants.\n<\/p><\/blockquote>\n
As a result of the notification aforesaid, the operation  of
\nthe  Act  has  been  extended  to  hotels  and\trestaurants,
\nincluding the one run by the petitioners.  Subsequently, the
\nCentral\t Government issued a notification ‘under s. 5,\tread
\nwith s. 7(1), of the Act, the relevant portions of which are
\nin these terms :\n<\/p>\n
\t      ” G.S.R. 783.-In exercise 1 of the powers con-
\n\t      ferred  by section 5 read with subsection\t (1)
\n\t      of  section  7, of  the  Employees’  Provident
\n\t      Funds  Act,  1952 (19 of\t1952),\tthe  Central
\n\t      Government  hereby makes the following  Scheme
\n\t      further to amend the Employees’ Provident Fund
\n\t      Scheme, 1952, namely\n<\/p><\/blockquote>\n
\t      1.    This Scheme may be called the Employees’
\n\t      996<\/span>
\n\t      Provident\t Funds\t(Third\tAmendment)   Scheme,
\n\t      1961.\n<\/p><\/blockquote>\n
\t      2.    In the Employees’ Provident Fund Scheme,
\n\t      1952,  in clause (b) of sub-paragraph. (3)  of
\n\t      paragraph\t 1,  sub-clause (xvii)shall  be\t re-
\n\t      numbered\tas sub-clause (xix) thereof and\t the
\n\t      following shall be inserted as sub-clauses
\n\t      (xvii) and (xviii), namely:-\n<\/p><\/blockquote>\n
\t      “(xvii)  as respects hotels  and,\t restaurants
\n\t      Covered by the notification of  the,Government
\n\t      of  India\t ‘in  the  Ministry  of\t Labour\t and
\n\t      Employment  No. G.S.R. 704 dated May 16,\t1961
\n\t      come  into  force\t on the\t 30th  day  of\tJune
\n\t      1961;….\n<\/p><\/blockquote>\n
The   said  notification  introduced  the  scheme,  as\t the
\nEmployees’  Provident Funds (Third Amendment) Scheme,  1961.
\nThe  petitioners  challenge  the  constitutionality  of\t the
\nscheme aforesaid, and the section of the Act in pursuance of
\nwhich it was brought into existence.  The   petitioners pray
\nfor a writ or order or direction quashing the said notifica-
\ntions and for issue of a mandamus to the respondents not  to
\napply the said scheme to the petitioners establishment.
\nBefore dealing with the specific grounds of attack raised in
\nsupport of the petition, it is necessary     to\t  set\t out
\nbriefly\t  the relevant provisions of the Act. The Act  applies
\nto every establishment which is a  factory  engaged  in\t any
\nindustry specified in schedule\t   1 and in which 20 or more
\n‘persons are employed, and    to  any  other   establishment
\nemploying 20 or more persons or class of such establishments
\nwhich  is  Central  Government may by  notification  in\t the
\nOfficial  Gazette,  specify in this behalf.  `Employee’\t has
\nbeen defined ‘in S. 2(f) as follows:\n<\/p>\n
\t      ”\t employee’ means any person who is  employed
\n\t      for wages in any\tkind of’ work, manual or
\n997<\/span>
\notherwise,  in\tor  in\tconnection  with  the  work  of\t  an
\nestablishment, and who gets his wages directly or indirectly
\nfrom  the employer, and includes any person employed  by  or
\nthrough\t a contractor in or in connection with the  work  of
\nthe establishment.”\n<\/p>\n
Section\t 5  authorises\tthe Central Government\tto  frame  a
\nscheme\tto be called the Employees’ Provident  Fund  Scheme,
\nfor  the establishment of provident funds under the Act\t for
\nemployees  or any class of employees and  establishments  or
\nclass of establishments to which the scheme may be  applied,
\nby  notification in the Official Gazette.  The\tcontribution
\nof the employer to the fund shall be 61% of the basic  wages
\nand dearness allowance and retaining allowance, if any,\t and
\nthe employees contribution shall be equal to the  employer’s
\ncontribution,  subject to his contribution being  raised  to
\nthe  maximum of 6 1\/3 %, if the employee so desires and\t the
\nscheme so provides.  Dearness allowance for the purposes  of
\ncontribution shall be deemed to include also the cash  value
\nof  any food concession allowed to the employee.  Section  7
\nauthorises  the Central Government to add to, amend or\tvary
\nany  scheme framed under the Act.  By s. 16 it\tis  provided
\nthat the Act shall not apply to any establishment registered
\nunder  the  Co-operative Societies Act of 1912,\t or  to\t any
\nother  establishment employing 50 or more persons or  20  or
\nmore but less than 50 persons until the expiry of 3 years in
\nthe  case  of  the former and 5 years in  the  case  of\t the
\nlatter, from the date on which the establishment is set\t up.
\nSection\t  17   empowers\t the  appropriate   Government,\t  by
\nnotification  in the Official Gazette, to exempt  .from\t the
\noperation of all or any of the provisions of any scheme\t any
\nestablishment to which the Act applies, if in the opinion of
\nthe Government the rules of its provident fund with  respect
\nto  the rates of contribution are not less  favourable\tthan
\nthose  specified  in  s. 6 and the  employees  are  also  in
\nenjoyment
\n998<\/span>
\nof other provident fund benefits which on the whole are\t not
\nless  favorable to the employees than the benefits  provided
\nunder  this Act, as also any establishment if the  employees
\nof  such establishment are in enjoyment of benefits  in\t the
\nnature or provident fund, pension or gratuity, which on\t the
\nwhole are not less favorable to such employees.\t Section  19
\nprovides for delegation of powers.\n<\/p>\n
It  has been contended (1) that s. 1(3)(b) under  which\t the
\nnotification  including restaurants and hotels were  brought
\nunder  the  operation  of the  Act,  is\t invalid  because-it
\nconfers\t  uncontrolled\t and  uncanalised   power   on\t the
\nGovernment;  (2)  that the    Act was intended to  apply  to
\nmere  wage  earners  and not to salaried  people  and  that,
\ntherefore,  the two,notifications as a result of  which\t the
\npetitioners  employees have been brought within the  purview
\nof the Act are bad inasmuch as\tthey are salaried  employees
\nand  not mere wage-earners; and (3) that the scheme  is\t bad
\nunder  Art.  14\t of  the Constitution  because\tit  is\tdis-
\ncriminatory.\n<\/p>\n
In  our\t opinion there is no substance in any one  of  these
\ncontentions.   It’  cannot  be\tasserted  that\tthe   powers
\nentrusted  to  the Central Government to  bring\t within\t the
\npurview\t  of  the  Act\tsuch  establishments  or  class\t  of
\nestablishments as the Government may by notification in\t the
\nOfficial  Gazette specify is uncontrolled  and\tuncanalised.
\nThe  whole Act is directed to institute provident funds\t for
\nthe   benefit,\t of  employees\tin   factories\t and   other
\nestablishments, as the preamble indicates.  The\t institution
\nof provident fund for employees is too, well-established  to
\nadmit of any doubt about its utility as a measure of  social
\njustice.   The underlying idea behind the of the Act  is  to
\nbring all kinds of employees within its fold as and when the
\nCentral\t Government  might think fit,  after  reviewing\t the
\ncircumstances  of each class of establishments.\t Schedule  1
\nto the Act contains a list of a large variety of  industries
\nengaged in
\n 999<\/span>
\nthe  manufacture of diverse commodities, mentioned  therein.
\nTo  all establishments which are factories engaged  in.\t the
\nindustries enumerated in Schedule 1, the Act has been  made)
\napplicable of its own force, subject to the provisions of s.
\n16, which has indicated the establishments to which the\t Act
\nshall  not apply.  The Schedule is liable to be added to  or
\nmodified so as to include other categories of industries not
\nalready\t included  in schedule 1. So far  as  establishments
\nwhich  do  not\tcome with in the  description  of  factories
\nengaged in industries the Central Government has been vested
\nwith the power of specifying such establishment and class of
\nestablishments,\t as it might determine to be brought  within
\nthe  purview.  of  the Act.  The Act  has  given  sufficient
\nindication  of the policy underlying its provisions  namely,
\nthat it shall apply to all factories engaged in any kind, of
\nindustry  and  to all other establishments employing  20  or
\nmore  persons.This  court has repeatedly laid it  down\tthat
\nwhere the discretion to apply the provisions of a particular
\nstatute\t is left with Government, it will be  presumed\tthat
\nthe  discretion so vested in such a high authority will\t not
\nbe abused.  The Government is in a position to have all\t the
\nrelevant and necessary information in relation to each\tkind
\nof  establishment  enabling it to determine  which  of\tsuch
\nestablishments\tcan  bear the additional  burden  of  making
\ncontribution  by way of provident fund, for the\t benefit  of
\nits   employees.   The\tpower  to  exempt  given,   to\t the
\nappropriate  Government\t under\ts. 17  is,  not\t uncanalised
\nbecause both cls. (a) and (b) of that section postulate that
\nthe  exemption\twould  be granted on  the  ground  that\t the
\nemployees  of  ‘those  establishments  are  already  in\t the
\nenjoyment  of  benefits\t in the nature\tof  provident  fund,
\npension\t or gratuity not less favorable to them\t than  under
\nthe Act.  Sub-section (3) of s.1 lays down the general\trule
\nin these terms as regards the applicability of the Act:\n<\/p>\n
\t      (3) Subject to the-provisions contained in
\n\t      1000<\/span>
\n\t      section 16, it applies-\n<\/p><\/blockquote>\n
\t      (a)   to\t every\testablishment  which  is   a
\n\t      factory  engaged in any industry specified  in
\n\t      Schedule 1 and in which twenty or more persons
\n\t      are employed, and\n<\/p><\/blockquote>\n
\t      (b)   to\tany  other  establishment  employing
\n\t      twenty  or  more\tpersons\t or  class  of\tsuch
\n\t      establishments  which the; Central  Government
\n\t      may, by notification in the Official  Gazette,
\n\t      specify  in  this behalf : Provided  that\t the
\n\t      Central Government may, after giving not\tless
\n\t      than two months notice of its intention so  to
\n\t      do, ‘by notification in the Official  Gazette,
\n\t      apply  the      Provision of this Act  to\t any
\n\t      establishment employing such number of persons
\n\t      less  than twenty as may be specified  in\t the
\n\t      notification.”\n<\/p><\/blockquote>\n
     The term ,industry’ used in the sub-section,quoted
\n     above, is defined ‘in s. 2(i), as follows
\n     “‘industry’ means any industry specified in  Schedule
\n\t      ‘1, and includes any other  industry     added
\n\t      to the Schedule by notification under    section\n<\/p><\/blockquote>\n
\t      4.”\n<\/p><\/blockquote>\n
By  s. 4, the Central Government has been authorised to\t add
\nto  the\t Schedule  any\tother industry\tin  respect  of\t the
\nemployees  whereof it is of opinion   that a provident\tfund
\nscheme\tshould\tbe  framed under the Act, and  when  such  a
\nnotification  1st  issued, the industry so  added  shall  be
\ndeemed\tto  been industry specified in\tthe  Schedule.\t The
\ngeneral rule as to the application of the Act has been\tlaid
\ndown  in  that\tsub-section.  By way of\t exception  to\tthat
\ngeneral\t  rule,\t  the  Appropriate  Government\t has   been-
\nauthorised  by s. 17 to exempt from the operation of all  or
\nany  of the provisions of any scheme framed under  the\tAct.
\nThe scheme is to be framed by the Central Government,  under
\ns. 5, for the establishment of provident fund
\n 1001<\/span>
\nunder  the Act for employees or any class of  employees,  in
\npursuance  of the provisions of the Act.  And the scheme  in
\nquestion  in this case, as already indicated, has  actually-
\nbeen  framed  and  is under challenge  in  this\t case.\t The
\nrelevant provisions of s. 17 are in these words :\n<\/p>\n
\t      “17.   Power  to exempt.-(1)  The\t appropriate
\n\t      Government   may,\t by  notification   in\t the
\n\t      Official\t Gazette,   and\t subject   to\tsuch
\n\t      conditions   as  may  be\tspecified   in\t the
\n\t      notification, exempt from the operation of all
\n\t      or any of the provisions of any Scheme-\n<\/p><\/blockquote>\n
\t      (a)   any\t establishment\tto  which  this\t Act
\n\t      applies if, in the opinion of the\t appropriate
\n\t      Government,  the rules of its  provident\tfund
\n\t      with respect to the rates of contribution\t are
\n\t      not  less\t favorable than those  specified  in
\n\t      section  6  and  the  employees  are  also  in
\n\t      enjoyment\t of  other provident  fund  benefits
\n\t      which  on the whole are not less favorable  to
\n\t      the employees than the benefits-provided under
\n\t      this  Act\t or any Scheme in  relation  to\t the
\n\t      employees\t in  any other\testablishment  of  a
\n\t      similar characters; or\n<\/p><\/blockquote>\n
\t      (c)   any\t establishment if the  employees  of
\n\t      such   establishment  are\t in   enjoyment\t  of
\n\t      benefits\tin  the nature\tof  provident  fund,
\n\t      pension\tor  gratuity  and  the\t appropriate
\n\t      Government  is of opinion that such  benefits,
\n\t      separately  or  jointly are on the  whole\t not
\n\t      less  favorable  to such\temployees  than\t the
\n\t      benefits provided under this Act or any scheme
\n\t      in  relation to employees An any\tother  esta-
\n\t      blishment of a similar character.”\n<\/p><\/blockquote>\n
It would appear from the terms of the relevant portion of s.
\n17 Chat the exemption to be granted by
\n1002<\/span>
\nthe   appropriate  Government  is  not\tin  the\t nature\t  of
\ncompletely  absolving the establishments from all  liability
\nto  provide  the facilities contemplated by  the  Act.\t The
\nexemptions  are to be granted by the appropriate  Government
\nonly  if  in  its opinion  the\texempted  establishment\t has
\nprovisions made for provident fund, in terms at least equal,
\nif  not more favorable, to its employees.  In  other  words,
\nthe  exemption\tis with a view to avoiding  duplication\t and
\npermitting the employees concerned. the benefit of the pre-
\nexisting   scheme,   which  presumably\thas   been   working
\nsatisfactorily,\t so  that  the exemption  is  not  meant  to
\ndeprive\t the  employees\t concerned  of\tthe  benefit  of   a
\nprovident fund but to ensure to them the continuance of\t the
\nbenefit\t which\tat least is not in terms less  favorable  to
\nthem.  As the whole scheme of provident fund is intended for
\nthe  benefit  of employees, s. 17  only\t saves\tpre-existing
\nschemes\t  of   provident  fund\tpertaining   to\t  particular
\nestablishments.\t Hence, the provisions of sub-s. (3), of  s.
\n1,  read alongwith those of s. 17, quoted above,  cannot  be
\nsaid to have conferred uncontrolled and uncanalised power on
\nthe   appropriate  Government.\t In  this  connection.\t the
\ndecision of this Court in The Eduard Mills Co. Ltd.,  Beawar
\nv. The State of Ajnwr(1) may be referred to.  In that  case,
\nthe  provisions\t of s. 27 of the Minimum Wages\tAct  (11  of
\n1948)  were questioned as having given\t uncanalised  power.
\nThe  provisions\t of that Act run more or  less\ton  parallel
\nlines  to  those  of the Act impugned  in  this\t case.\t The
\nSchedule  attached to the Minimum Wages Act gave a  list  of
\nthe employments in respect of which minimum wages were to be
\nfixed.\tUnder S. 27 of that Act, power had been given to the
\n“appropriate   Government”  to\tadd  to\t the  Schedule\t any
\nemployment  in respect of which it was of the  opinion\tthat
\nminimum\t wages\tshould\tbe  fixed.   Those  provisions\twere
\nattacked as lacking in legislative
\n(1)  [1955] 1 S.C.R. 735.\n<\/p>\n
 1003<\/span><\/p>\n
policy\taccording to which a particular employment shall  be
\nchosen\tfor being included in the schedule.  The  contention
\nin  that case that no principles had been prescribed and  no
\nstandards laid down which could furnish an intelligent guide
\nto  the\t executive  authority in  making  the  selection  of
\nemployments was repelled by this Court.\t A similar  question
\nwas  raised in this Court in the case of Vasantal  Maganbhai
\nSanjanuwala v. The State of Bombay (1) challenging the vires
\nof s. 6 (2) of the Bombay Tenancy and Agricultural Lands Act
\n(Bom. 67 of 1948), which read as follows :\n<\/p>\n
\t      “The  Provincial Government may, by  notifica-
\n\t      tion in the Official Gazette, fix a lower rate
\n\t      of the maximum rent payable by the tenants  of
\n\t      lands  situate in any particular area  or\t may
\n\t      fix  such rate on any other suitable basis  as
\n\t      it thinks fit.”\n<\/p><\/blockquote>\n
This  Court,  on  a consideration of  the  preamble  of\t the
\nstatute\t and its relevant provisions came to the  conclusion
\nthat the power delegated to the Provincial Government by  s.
\n6 (2) was not vitiated by excessive delegation.\t It will  be
\nnoticed that the terms of the section quoted above had given
\nmuch  wider powers to the executive.  But the Court  pointed
\nout that the legislature enunciated its policy and laid down
\nthe  principle\tfor the guidance of the\t delegate  in  clear
\nterms,\tand that, therefore, the impugned provisions of\t the
\nAct  in that case did not suffer from the vice of  excessive
\ndelegation.\n<\/p>\n
But strong reliance was placed on behalf of the\t petitioners
\non  the decision of this Court in Hamdard  Dawakhana  (Wakf)
\nLal  Kuan, Delhi v. Union of India<\/a> (2).\t In that  case\tthe
\nprovisions  of\tcl.  (d) of s. (3) of the  Drugs  and  Magic
\nRemedies  (Objectionable  Advertisements) Act, 1954  (21  of
\n1954) were
\n(1) [1961] 1 S.C.R. 341.\n<\/p>\n
(2) [1960] 2 S.C.R. 671,
\n1004<\/span>
\nstruck down as having conferred uncanalised and uncontrolled
\npower  on  the executive.  In that case, the whole  Act\t had
\nbeen  challenged as having infringed the fundamental  rights
\nof a citizen under Art. 19 (1) (a) & (g).  This Court upheld
\nthe constitutionality of the Act as a whole, in view of\t the
\nscope and object of the Act, which was not to interfere with
\nthe  right of freedom of speech but had reference  to  trade
\nand business.  This Court held that the provisions  attacked
\non those grounds were reasonable restrictions on the  rights
\nof  a citizen to carry on any trade or business.   But\tthis
\nCourt  held further that the words “or any other disease  or
\ncondition which maybe specified in the rules made under this
\nAct”  in  cl.  (d) of s. 3,  which empowered  the  Central
\nGovernment to add to the list of diseases falling within the
\nmischief  of  s.  3  suffered from  the\t vice  of  excessive
\ndelegation.  This Court struck down that portion of the sub-
\nsection\t as, in its opinion, the words impugned\t were  vague
\nand  Parliament\t had not established any criteria  nor\tlaid
\ndown  any standards nor prescribed any principle on which  a
\nparticular  disease or condition was to be specified in\t the
\nSchedule.   It\tis  clear  that\t the  last  mentioned\tcase
\nillustrates  the  rule that the question whether  or  not  a
\nparticular  piece  of legislation suffers from the  vice  of
\nexcessive  delegation must be determined with  reference  to
\nthe facts and circumstances in the back-ground of which\t the
\nprovisions of the statute impugned had been enacted.  If, on
\na  review  of  all the facts and circumstances\tand  of\t the
\nrelevant  provisions  of  the statute, the Court  is  in  a,
\nposition  to say that the legislature had clearly  indicated
\nthe  underlying principle of the legislation and  laid\tdown
\ncriteria  and proper standards but had left the\t application
\nof  those principles  and standards to individual  cases  in
\nthe hands of the executive, it cannot be said that there was
\nexcessive  delegation of powers by the legislature.  On\t the
\nother hand, if a review of all those facts and circumstances
\nand
\n 1005<\/span>
\nthe  provisions\t of  the statute,  including  the  preamble,
\nleaves\t the  Court  guessing  as  to  the  principles\t and
\nstandards, then the delegate has been entrusted not with the
\nmere  function of applying the law to individual cases,\t but
\nwith  a\t substantial portion of\t legislative  power  itself.
\nApplying those principles which are now well-established  by
\nquite a number of decisions of this Court, can it be said in
\nthe  instant  case that the. legislature had  not  indicated
\nclearly\t the principles underlying the legislation  and\t the
\nstandards to be applied ? In our opinion, the answer must be
\nan emphatic “No”.\n<\/p>\n
It  was\t next  contended  that\tthe  Act  was  intended\t  by
\nParliament to apply to employees who were mere\twage-earners
\nand not to salaried servants, and that in the instant  case,
\nthe employees of the petitioners were not mere wage-earners.
\nIt  is\ta little difficult to  appreciate  the distinction
\nsought to be made.  Both ‘Salary’ and ‘Wages” are emoluments
\npaid  to  an employee by way of recompense for\this  labour.
\nNeither\t of the two terms is a ‘term of art’.  The  Act\t has
\nnot defined wages; it has only defined “basic wages” as\t all
\nemoluments which are earned by an employee while on duty or,
\non  leave  with wages in accordance with the  terms  of\t the
\ncontract of employment and which are paid or payable in cash
\nto  him, but does not include……, “(s. 2(b).\t (Exclusions
\nare  not relevant for our present purposes  and,  therefore,
\nneed  not  be  read.)  ‘Salary’,  on  the  other  hand,\t  is
\nremuneration paid to an employee whose period of  engagement
\nis  more  or  less permanent in character,  for\t other\tthan
\nmanual\tor  relatively unskilled  labour.   The\t distinction
\nbetween\t skilled  and unskilled labour itself  is  not\tvery
\ndefinite  and it cannot be argued, nor has it been  argued..
\nthat  the  remuneration for skilled labour is  not  ‘wages’.
\nThe Act itself has not made any distinction between  ‘wages’
\nand  ‘salary’.\t Both  may be paid  weekly,  fortnightiy  or
\nmonthly\t though\t remuneration  for the\tday’s  work  is\t not
\nordinarily
\n1006<\/span>
\ntermed\t“salary’.   Simply because wages for the  month\t run
\ninto  hundreds,\t as they very often do now, would  not\tmean
\nthat the employee is not earning wages, properly so  called.
\nA  clerk  in an office may earn much less than\tthe  monthly
\nwages  of a skilled laborer.  Ordinarily he is said to\tearn
\nhis salary.  But in principle there is no difference between
\nthe  two.  It is,  therefore, not established that  the\t Act
\nwas  not  intended  to apply to salaried  employees,  if  by
\nsalary\tis meant fortnightiy or monthly wages  running\tinto
\nhundreds  per month.  It is manifest that there is no  force
\nin this contention.\n<\/p>\n
It now remains to consider the third and the last contention
\nraised on behalf ‘of the petitioners,, namely, that the\t Act
\nsuffers\t from  the vice of  discrimination  and,  therefore,
\n‘infringes  Art.  14 of the Constitution.  It is  even\tmore
\ndifficult to understand this contention, because, as already
\npointed\t out, the Act applies to all establishments,  except
\nthose recited in s. 16, which before its amendment by Act 46
\nof 1960, exempted establishments belonging to Government  or
\nto a local authority.  But whatever vice there may have been
\nin that provision has been removed by amending the  section,
\nwhich stands after the amendment as under:\n<\/p>\n
\t      “16 (1) This Act shall not apply-\n<\/p><\/blockquote>\n
\t      (a)   to\tany establishment  registered  under
\n\t      the Co-operative Societies Act, 1912, or under
\n\t      any   other  law for the time being  in  force in
\n\t      any    State   relating  to   Co-operative
\n\t      Societies\t employing less than  fifty  persons
\n\t      and working without the aid of power; or\n<\/p><\/blockquote>\n
\t      (b)   to\tany  other  establishment  employing
\n\t      fifty  or more persons or twenty or  more\t but
\n\t      less  than fifty persons until the  expiry  of
\n\t      three
\n\t       1007<\/span>
\n\t      years in the case of the former and five years
\n\t      in  the case of the latter, from the  date  on
\n\t      which the establishment is or has been set up”
\n\t      Explanation.-For\tthe removal of doubt  it  is
\n\t      hereby  declared that an\testablishment  shall
\n\t      not  be  deemed to be newly set up  merely  by
\n\t      reason of a change in its location.”\n<\/p><\/blockquote>\n
Clause\t(a)  of\t s.  16, as  it\t now  stands,  has  exempted
\nestablishments\tregistered under the Co-operative  Societies
\nAct, because it is well-known that it is the settled  policy
\nof  the Government to foster co-operative societies  with  a
\nview to their development and growth in the interest of\t the
\ncommunity. It is not necessary to cite instances where this
\nCourt has held that cooperative societies stand on a special
\nfooting\t which distinguishes them from other  establishments
\nor corporations.  Clause (b) has reference to establishments
\nwhich  have  been in existence for less than 3\tyears  or  5
\nyears,\tas  the\t case may be.\tThat  is  an  understandable
\nclassification\t with\ta  view\t to   save   newly   started
\nestablishments\t from  the  additional\tburden\t of   making
\ncontribution to provident fund in respect of its  employees.
\nIt is clear that the exemption is a short-lived one  because
\nwith  the  efflux  of  3  or  5\t years’\t period,  they\twill
\nautomatically  come under the scheme framed under  the\tAct.
\nThe  operation of s. 17 has already been discussed,  and  it
\nhas  already  been indicated that  an  establishment  coming
\nunder  the exemptions granted or to be granted under  s.  17
\ndoes  not mean that the establishment bears less  burden  of
\nits  share  of contribution to the fund.  It  has  not\tbeen
\ncontended before us that the petitioners’ establishment does
\nnot  come within the general rule laid down in s. 1  (3)  of
\nthe Act or within the scope of the scheme framed under s. 5.
\nIt  is\tequally clear that all hotels and  restaurants\tcome
\nwithin’ the scope of the notification impugned in this case.
\nHence, there is absolutely no reason for complaint that the
\n1008<\/span>
\npetitioners’ establishment of that class has been chosen for
\nhostile discrimination.\n<\/p>\n
As  all the contentions raised on behalf of the\t petitioners
\nfail, the petition is dismissed with costs.\n<\/p>\n
\t\t\t    Petition dismissed.\n<\/p>\n
1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohmedalli And Others vs Union Of India And Another on 9 November, 1962 Equivalent citations: 1964 AIR 980, 1963 SCR Supl. (1) 993 Author: S C. Bench: Shah, J.C. PETITIONER: MOHMEDALLI AND OTHERS Vs. RESPONDENT: UNION OF INDIA AND ANOTHER DATE OF JUDGMENT: 09\/11\/1962 BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-127614","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohmedalli And Others vs Union Of India And Another on 9 November, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohmedalli-and-others-vs-union-of-india-and-another-on-9-november-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohmedalli And Others vs Union Of India And Another on 9 November, 1962 - 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