{"id":86726,"date":"1954-10-14T00:00:00","date_gmt":"1954-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-edward-mills-co-ltd-beawar-vs-the-state-of-ajmer-and-another-on-14-october-1954"},"modified":"2017-04-18T21:34:28","modified_gmt":"2017-04-18T16:04:28","slug":"the-edward-mills-co-ltd-beawar-vs-the-state-of-ajmer-and-another-on-14-october-1954","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-edward-mills-co-ltd-beawar-vs-the-state-of-ajmer-and-another-on-14-october-1954","title":{"rendered":"The Edward Mills Co. Ltd., Beawar, … vs The State Of Ajmer And Another on 14 October, 1954"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Edward Mills Co. Ltd., Beawar, … vs The State Of Ajmer And Another on 14 October, 1954<\/div>\n
Equivalent citations: 1955 AIR 25, \t\t 1955 SCR (1) 735<\/div>\n
Author: B Mukherjea<\/div>\n
Bench: Mahajan, Mehar Chand (Cj), Mukherjea, B.K., Bose, Vivian, Jagannadhadas, B., Aiyyar, T.L. Venkatarama<\/div>\n
           PETITIONER:\nTHE EDWARD MILLS CO.  LTD., BEAWAR, AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF AJMER AND ANOTHER.\n\nDATE OF JUDGMENT:\n14\/10\/1954\n\nBENCH:\nMUKHERJEA, B.K.\nBENCH:\nMUKHERJEA, B.K.\nAIYYAR, T.L. VENKATARAMA\nMAHAJAN, MEHAR CHAND (CJ)\nBOSE, VIVIAN\nJAGANNADHADAS, B.\n\nCITATION:\n 1955 AIR   25\t\t  1955 SCR  (1) 735\n CITATOR INFO :\n R\t    1960 SC 424\t (10)\n RF\t    1961 SC   4\t (5,25)\n RF\t    1961 SC 298\t (12)\n F\t    1962 SC  12\t (11)\n RF\t    1962 SC  97\t (6)\n R\t    1964 SC 648\t (17,4)\n R\t    1964 SC 980\t (8)\n R\t    1964 SC1260\t (6)\n RF\t    1966 SC1788\t (38)\n RF\t    1967 SC 669\t (29)\n RF\t    1967 SC 691\t (66)\n R\t    1970 SC2042\t (10)\n R\t    1974 SC1044\t (6)\n E\t    1980 SC 350\t (5)\n RF\t    1982 SC 149\t (803)\n D\t    1986 SC 872\t (110)\n R\t    1990 SC 560\t (13)\n\n\nACT:\n      Constitution of India, Art. 372-Words \"law in  force\"-\nMeaning\t of- Whether include regulation or order having\t the\nforce  of  law\t--An  order  made  under  s.  94(3)  of\t the\nGovernment  of India Act, 1935 -Whether \"law in\t force\"\t and\ncapable\t of  adaptation-Minimum Wages Act, 1948 (Act  XI  of\n1948), s. 27-\"Appropriate Government\" -Given power to add to\neither\tpart of schedule-Any employment in respect of  which\nminimum\t rates of wages should be fixed-Whether\t such  power\nwarranted and not unconstitutional and within the limits  of\npermissible  delegation-Advisory  committee-Appointment\t of-\nUnder  s.  5  of the Act-Extension of its  term\t beyond\t the\nperiod already expired-Validity-Proceduraral irregularities-\nWlhether vitiate the final report.\n736\n\n\n\nHEADNOTE:\nThe words 'law in force' as used in Art. 372 of the  Consti-\ntution\tare wide enough to include not merely a\t legislative\nenactment  but\talso any regulation or order which  has\t the\nforce of law.\n    An order made by the Governor-General under s. 94(3)  of\nthe  Government\t of  India Act, 1935,  investing  the  Chief\nCommissioner with the authority to administer a province  is\nreally\tin  the\t nature of  a  legislative  provision  which\ndefines\t the rights and powers of the Chief Commissioner  in\nrespect\t of that province.  Such an order comes\t within\t the\npurview of Art. 372 of the Constitution and being a 'law  in\nforce'\t immediately   before  the   commencement   of\t the\nConstitution  would continue to be inforce under clause\t (1)\nof the article.\t Such an order is capa ble of adaptation  to\nbring  it in accord with the constitutional  provisions\t and\nthis  is precisely what has been done by the  Adaptation  of\nLaws Order, 1950.  Therefore an order made under s. 94(3) of\nthe Government of India Act, 1935, should be reckoned now as\nan order made under Art. 239 of the Constitution and it\t was\nwithin\tthe competence of the President under clause (2)  of\nArt. 372 to make the adaptation order.\n    Under  s. 27 of the Minimum Wages Act, 1948,  power\t has\nbeen given to the \"appropriate Government\" to add to  either\npart  of the schedule any employment in respect of which  it\nis  of opinion that minimum wages shall be fixed  by  giving\nnotification  in  a  particular manner,\t and  thereupon\t the\nscheme shall, in its application to the State, be deemed  to\nbe  amended accordingly.  There is an element of  delegation\nimplied\t in  the  provisions of s. 27 of the  Act,  for\t the\nLegislature,  in a sense, authorises another body  specified\nby  it, to do something which it might do itself.  But\tsuch\ndelegation,  if\t it  can  be  so  called  at  all,  is\t not\nunwarranted and unconstitutional and it does not exceed\t the\nlimits of permissible delegation.\n     The  legislative policy is apparent on the face of\t the\npresent\t enactment.   What  it\taims  at  is  the  statutory\nfixation of minimum wages with a view to obviate the chances\nof  exploitation of labour.  It is to carry out\t effectively\nthe  purposes of the enactment that power has been given  to\nthe appropriate Government to decide with reference to local\nconditions whether it is desirable that minimum wages should\nbe  fixed in regard to a particular trade or industry  which\nis not already included in the list.\n    Therefore  in  enacting s. 27 the  legislature  has\t not\nstripped  itself of its essential powers or assigned to\t the\nadministrative\tauthority  anything  but  an  accessory\t  or\nsubordinate  power which was deemed necessary to  carry\t out\nthe purpose and the policy of the Act.\n    Rule  3  of\t the rules framed under s.  30\tof  the\t Act\nempowers  the  State  Government  to fix  the  term  of\t the\ncommittee  appointed under s. 5 of the Act and to extend  it\nfrom time to time as circumstances require.\n    The period originally fixed had expired and its term was\nextended subsequently.\tIt did not function and submitted no\n\t\t\t    737\nreport\tduring\tthe period.  Assuming  that  the  subsequent\norder could not revive a committee which was already dead, a\nnew committee could be held to have been constituted and the\nreport,\t submitted by it would be a perfectly  good  report.\nApart  from this, a committee is only an advisory  body\t and\nprocedural  irregularities  of\tthis  character\t could\t not\nvitiate the final report which fixed the minimum wages.\n    Baxter  v.\tAh Way (8 C.L.R. 626) and Reg. v.  Burah  (3\nApp.  Cas. 889) referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 138 and 139
\nof 1954.\n<\/p>\n
     Appeals under articles 132 and 133 of the\tConstitution
\nof  India  from\t the  Judgment and  Order,  dated  the\t16th
\nFebruary,  1953,  of  the Court\t of  Judicial  Commissioner,
\nAjmer, in Civil Miscellaneous Petitions Nos. 260 and 263  of
\n1952.\n<\/p>\n
    N.C. Chatterjee (B.\t D. Sharma and Naunit Lal, with him)
\nfor appellants Nos. 1 and 2 in C. A. No. 138 of 1954 (Edward
\nMills and Krishna Mills).\n<\/p>\n
     Achhru Ram (B.  D. Sharma and Naunit Lal, with him) for
\nappellant No. 3 in C. A. No. 138 of 1954 (Mahalaxmi Mills).\n<\/p>\n
     H.N. Seervai, J. B. Dadachanji and Rajinder Narain\t for
\nthe appellant in C. A. No. 139 of 1954.\n<\/p>\n
    C.\t  K. Daphtary, Solicitor-General of India (M.  M.
\nKaul and P. G. Gokhale, with him) for respondent  No.\t   2
\n(Union of India).\n<\/p>\n
1954.  October 14.  The Judgment of the Court was  delivered
\nby
\n     MUKHERJEA\tJ.-These two appeals are directed against  a
\ncommon judgment, dated the 16th of February, 1953, passed by
\nthe  Judicial  Commissioner  of\t Ajmer,\t on  two   analogous
\npetitions  under article 226 of the Constitution, in one  of
\nwhich  the  appellants in Appeal No. 138 of  1954  were\t the
\npetitioners,  while the other was filed by the appellant  in
\nAppeal No. 139 of 1954.\n<\/p>\n
     The  petitioners  in  both\t the  cases  prayed  for   a
\ndeclaration that the notification, dated the 7th of October,
\n1952, issued by the State Government of
\n738<\/span>
\n     Ajmer,  fixing the minimum rates of wages in respect  of
\nemployment in the textile industry within that State,  under
\nthe  provisions of the Minimum Wages Act (Act XI  of  1948),
\nwas  illegal and ultra vires and for issue of writs  in\t the
\nnature of mandamus directing the respondents not to  enforce
\nthe same against the petitioners.\n<\/p>\n
    To appreciate the points that have been canvassed before
\nus,  it will be convenient to narrate briefly  the  material
\nfacts  in chronological order.\tOn the 15th of March,  1948,
\nthe  Central Legislature of India passed an Act\t called\t The
\nMinimum\t Wages Act, 1948, the object of which, as stated  in
\nthe  preamble,\tis to provide for fixing  minimum  rates  of
\nwages in certain employments.  The schedule attached to\t the
\nAct  specifies, under two parts, the employments in  respect
\nof  which the minimum wages of the employees can  be  fixed;
\nand  section  27 authorises  the  “appropriate\tGovernment”,
\nafter giving three months’ notice of its intention to do so,
\nto add to either part of the schedule, any other employment,
\nin respect of which it is of the opinion that minimum  rates
\nof  wages  should be fixed under the  Act.   The  expression
\n“appropriate  Government” as defined in section 2(b)  means,
\nin  relation  to  a scheduled  employment,  other  than\t one
\ncarried by or under the authority of the Central Government,
\nthe  State  Government’\t Under section\t3  the\t“appropriate
\nGovernment”  is\t to fix minimum wages payable  to  employees
\nemployed in any employment specified in the schedule at\t the
\ncommencement  of  the Act or added to it  subseq  uently  in
\naccordance  with the provisions of section 27.\t Sub-section
\n(1)  (a)  of  this  section provides  inter  alia  that\t the
\n“appropriate Government” may refrain from fixing the minimum
\nrates  of  wages in respect of any scheduled  employment  in
\nwhich there are in the whole State less than 1,000 employees
\nengaged\t in  such  employment.\t Section  5  lays  down\t the
\nprocedure   for\t fixing\t minimum  wages.   The\t appropriate
\nGovernment  can\t appoint a committee to\t hold  enquiries  to
\nadvise\tit  in the matter of fixing minimum  wages;  in\t the
\nalternative  it can, by notification in the official  public
\ngazette,  publish  its\tproposals  for\tthe  information  of
\npersons likely to be affected thereby.\tAfter
\n\t\t\t    739<\/span>
\nconsidering   the   advice   of\t  the\tcommittee   or\t the
\nrepresentations\t on  the proposals as the case may  be,\t the
\n‘appropriate  Government’  shall fix the  minimum  rates  of
\nwages\tin   respect  to  any\tscheduled   employment,\t  by
\nnotification  in the official gazette, and such rates  would
\ncome into force on the expiry of three months from the\tdate
\nof issue unless the notification directs otherwise.  Section
\n9 provides inter alia that an advisory committee constituted
\nunder  section 5 shall consist of persons nominated  by\t the
\nappropriate Government.\t There shall be in the committee  an
\nequal  number  of representatives of the employers  and\t the
\nemployed  in  any scheduled employment and  there  shall  be
\nindependent persons as well, not exceeding one-third of\t the
\ntotal number, one of whom shall be appointed Chairman.\n<\/p>\n
     Section  30 confers on the appropriate  Government\t the
\npower  to  make rules for carrying out the purposes  of\t the
\nAct.\n<\/p>\n
    It\tmay  be mentioned at the outset that Part I  of\t the
\nschedule to the Act mentioned only 12 items of employment at
\nthe  time  when\t the Act was passed and\t employment  in\t the
\ntextile\t industry was not included in Chem.  On the 16th  of
\nMarch,\t1949, the Central Government issued a  notification,
\nin  exercise  of  its  powers under  section  94(3)  of\t the
\nGovernment of India Act, 1935, directing that the  functions
\nof  the\t “appropriate Government” tinder the  Minimum  Wages
\nAct,  would,  in  respect  of  every  Chief   Commissioner’s
\nProvince,  be exercised by the Chief Commissioner.   On\t the
\n17th March, 1950, the Chief Commissioner of Ajmer,  purport-
\ning  to\t act as the “appropriate Government” of\t the  State,
\npublished  a notification in terms of section 27 of the\t Act
\ngiving\tthree  months’ notice of his  intention\t to  include
\nemployment  in\tthe textile mills as an additional  item  in
\nPart  I of the schedule.  On the 10th of October, 1950,\t the
\nfinal  notification  was  issued  stating  that\t the   Chief
\nCommissioner  had directed “that the employment\t in  textile
\nindustry” should be added in Part I of the schedule.
\n   On  the  23rd November, 1950,  another  notification\t was
\npublished under the signature of the Secretary to
\n740<\/span>
\nthe  Chief Commissioner containing the rules  purporting  to
\nhave  been framed by the Chief Commissioner in\texercise  of
\nhis powers under section 30 of the Act.\t Out of these,\tonly
\nrules 3, 8 and 9 are material for our present purpose.\tRule
\n3  provides  that the term of office of the  members  of  an
\nadvisory  committee shall be such, as in the opinion of\t the
\nState  Government, is necessary for completing\tthe  enquiry
\ninto  the  scheduled  employment  concerned  and  the  State
\nGovernment  may,  at  the time of the  constitution  of\t the
\ncommittees, fix a term and may, from time to time, extend it
\nas  circumstances may require.\tRule 8 provides for  filling
\nup the vacancies occurring or likely to occur in the member-
\nship of the committee by resignation of any of its  members.
\nRule 9 lays down that if a member of the committee fails  to
\nattend\tthree  consecutive meetings he would cease to  be  a
\nmember\tthereof.  The rule further states that\tsuch  member
\ncould,\tif he so desires, apply, within a certain  time\t for
\nrestoration of his membership and restoration could be\tmade
\nif the majority of the members are satisfied that there were
\nadequate reasons for his failure to attend the meetings.
\n    On the 17th January, 1952, a committee was appointed  to
\nhold  enquiries and advise the Chief Commissioner in  regard
\nto  the\t fixation of minimum wages relating to\tthe  textile
\nindustry  within  the  State.  Ten  members  were  nominated
\nconsisting  of four represeiitatives of the employers,\tfour
\nof  the employees and two independent members, one  of\twhom
\nShri  Annigeri\twas  to\t act as\t an  expert  member  of\t the
\ncommittee  and the other, Dr. Bagchi, as its Chairman.\t The
\nterm  of office of the members was fixed at-six months\tfrom
\nthe  date  of the notification ending on the 16th  of  July,
\n1952.\tThe first meeting of the committee was held  on\t the
\n29th February, 1952.  The expert member was present at\tthat
\nmeeting and it was resolved that the minimum wages must\t not
\nmerely\tprovide for the bare subsistence of life but  should
\nbe  adequate  for the maintenance of the efficiency  of\t the
\nworker.\t  The  second meeting was held on  the\t29th  March,
\n1952,  and the third on the 14th of June, 1952.\t The  expert
\nmember was not present at any other meeting except the first
\nand on the 27th of
\n741<\/span>
\nMay,  1952,  he\t wrote a letter to  the\t Chief\tCommissioner
\nstating\t that he was proceeding to Europe on the 3rdd  June,
\n1952,  for  a  period of three months.\t He  expressed’\t his
\nwillingness to assist the Chairman in the preparation of the
\nreport\tafter he came back from Europe by the first week  of
\nSeptember,  next,  provided the term of\t the  committee\t was
\nextended.   If however that was not possible,  he  requested
\nthat his letter might be treated as a letter of\t resignation
\nfrom the membership of the Committee.  No action appears  to
\nhave  been taken on receipt of the letter.  The\t fourth\t and
\nthe  fifth meetings of the committee were held\trespectively
\non the 8th and the 15th of July, 1952.\tOn the 20th  August,
\n1952,  the the Chairman of the Committee informed the  Chief
\nCommissioner that Shri Annigeri had ceased to be a member of
\nthe  committee\tby  reason of his failing  to  attend  three
\nconsecutive  meetings.\tHe had also desired that his  letter
\nto  the Chief Commissioner dated the 27th May, 1952,  should
\nbe treated as a letter of resignation.\tIn the circumstances
\nthe Chief Commissioner was requested to fill up this vacancy
\nin the membership.  On the very next day, that is to say, on
\nthe  21st August, 1952, a notification was issued  by  which
\nthe Chief Commissioner ordered the extension of the term  of
\nthe committee up to the 20th of September, 1952, and on\t the
\n28th  of  August, following, another notification  was\tmade
\nappointing Shri Annigeri as a member of the committee.\t The
\nterm of the committee was extended by a further notification
\ntill the 5th of October, 1952.\tIn the meantime a meeting of
\nthe committee was held on the 10th September, 1952, in which
\nShri  Annigeri was not present.\t The only resolution  passed
\nwas, that all relevant papers might besent to Shri  Annigeri
\nas desired by him.  It appears that some time after the 14th
\nof September, 1952, the Chairman himself took the papers  to
\nNagpur\twhere  Shri Annigeri was staying and a\tdraft  final
\nreport was prepared by the Chairman in consultation with the
\nexpert member and both of them signed the report at  Nagpur.
\nThe  report was placed before the other members on  the\t 4th
\nOctober,  1952,\t and  on the 7th of  October,  following,  a
\nnotification was issued fixing
\n95<\/span>
\n742<\/span>
\nminimum\t rates\tof wages for the employees  in\tthe  textile
\nindustry  in the State of Ajmer, under the signature of\t the
\nSecretary  to the Chief Commissioner and stating that  these
\nrates  should  be  deemed to be in force  from\tthe  1st  of
\nSeptember, 1952.\n<\/p>\n
    Feeling   aggrieved\t by  this  notification\t the   three
\nappellants   in\t Appeal\t No.  138  of  1954   presented\t  an
\napplication under article 226 of the Constitution before the
\nJudicial  Commissioner of Ajmer on the 31st  October,  1952,
\npraying\t for a writ in the nature of mandamus  ordering\t the
\nState  of  Ajmer  not  to  enforce  the\t same.\t A   similar
\napplication  was  filed\t by  the  Bijay\t Cotton\t Mills,\t the
\nappellant in the other appeal, on the 6th of November, 1952.
\nBoth the petitions were heard together and a common judgment
\nwas  passed  by\t the Judicial Commissioner on  the  16th  of
\nFebruary, 1953.\t The applications were dismissed except that
\nthe  Chief Commissioner was held to have exceeded his  legal
\nauthority in giving retrospective effect to the notification
\nof  the\t 7th of October, 1952, and the State of\t Ajmer,\t was
\nrestrained  from  enforcing the notification from  any\tdate
\nearlier\t than the 8th of January, 1953.\t It is against\tthis
\njudgment  that these two appeals have come up to this  Court
\non  the\t strength of certificates granted  by  the  Judicial
\nCommissioner, Ajmer.\n<\/p>\n
    Mr.\t Chatterjee, appearing for the appellants in  Appeal
\nNo. 138, has put forward a three-fold argument on behalf  of
\nhis  clients.\tHe  has contended in the  first\t place\tthat
\nwithout\t a  delegation of authority by the  President  under
\narticle\t 239 of the Constitution, the Chief Commissioner  of
\nAjmer  was  not competent to function  as  the\t“appropriate
\nGovernment” for purposes of the Minimum Wages Act.  All\t the
\nsteps  therefore that were taken by the\t Chief\tCommissioner
\nunder the provisions of the Act including the issuing of the
\nfinal notification on the 7th of October, 1952, were illegal
\nand ultra vires.\n<\/p>\n
   The\tsecond\tcontention raised is that the  provision  of
\nsection 27 of the Act is illegal and ultra vires inasmuch as
\nit amounts to an illegal and unconstitutional delegation  of
\nlegislative  powers  by\t the Legislature in  favour  of\t the
\n“appropriate Government” as defined in the
\n\t\t\t    743<\/span>
\nAct.   The third and the last contention is, that the  Chief
\nCommissioner had no authority to extend retrospectively\t the
\nterm of the Advisory Committee after it expired on the\t16th
\nof July, 1952.\n<\/p>\n
   Mr. Seervai, who appeared in support of the other appeal,
\nadopted\t all  these arguments on behalf of his\tclient.\t  He
\nhowever\t  raised  some\tadditional  points  impeaching\t the
\nconstitutional\tvalidity of the Minimum Wages Act itself  on
\nthe   ground  that  its\t provisions  conflicted\t  with\t the
\nfundamental  rights  of\t the appellants\t and  its  employees
\nguaranteed  under  article 19(1) (g)  of  the  Constitution.
\nThese points were argued elaborately by the learned  counsel
\nin connection with the two petitions filed on behalf of\t the
\nBijay  Cotton  Mills Ltd., and a number of  employees  under
\nthem  under article 32 of the Constitution and we will\ttake
\nthem up for consideration when dealing with these petitions.
\nWe  will now proceed to consider the three points  mentioned
\nabove which have been raised in support of the appeals.
\nSo far as the first ground is concerned the argument of\t Mr.
\nChatterjee in substance is that the expression\t“appropriate
\nGovernment”  has  been defined in section 2(b) (ii)  of\t the
\nMinimum\t Wages\tAct to mean, in relation  to  any  scheduled
\nemployment, not carried on by or under the authority of\t the
\nCentral\t  Government,\tthe   State   Government.     “State
\nGovernment” has been defined in section 3(60) of the General
\nClauses Act as meaning, in regard to anything done or to  be
\ndone after the commencement of the Constitution in a Part  C
\nState, the Central Government.\tPrior to the commencement of
\nthe  Constitution, under section 94(3) of the Government  of
\nIndia  Act, 1935, a chief commissioner’s Province  could  be
\nadministered  by the GovernorGeneral acting to such  extent,
\nas  he\tthought\t fit, through a\t Chief\tCommissioner  to  be
\nappointed  by him in his discretion; and under section\t3(8)
\nof  the General Clauses Act, as it stood before the 26th  of
\nJanuary, 1950, the expression “Central Government” included,
\nin  the case of a Chief Commissioner’s Province,  the  Chief
\nCommissioner  acting within the scope of authority given  to
\nhim under section 94(3) of the Government of
\n744<\/span>
\nIndia  Act,  1935.  Article 239 of  the\t Constitution  which
\ncorresponds to section 94(3) of the Government of India Act,
\nthough\tit  is much wider in scope, provides  that  a  State
\nspecified  in  Part  C\tof  the\t First\tSchedule  shall\t  be
\nadministered  by the President acting, to such extent as  he
\nthinks\tfit,  through a Chief Commissioner or  a  Lieutenant
\nGovernor to be appointed by him or through the Government of
\na   neighbouring  State.   Agreed  to  this   constitutional
\nprovision section 3(8 ) (b) (ii) Of the General Clauses Act,
\nas  amended  by the Adaptation Laws Order, 1950,  lays\tdown
\nthat the expression “Central Government” shall include inter
\nalia the Chief Commissioner of a Part C State acting  within
\nthe scope of the authority given to him under article 239 of
\nthe  Constitution.   Ajmer was admittedly  a  Chief  Commis-
\nsioner’s  Province under section 94(1) of the Government  of
\nIndia  -Act, 1935.  It has become a Part C State  after\t the
\ncoming\tinto force of the Constitution.\t As has been  stated
\nalready, the Central Government issued a notification on the
\n16th  of March, 1949, under section 94(3) of the  Government
\nof   India   Act,  directing  that  the\t function   of\t the
\n“appropriate Government” under the Minimum Wages Act  would,
\nin   respect  of  any  Chief  Commissioner’s  Province,\t  be
\nexercised  by  the Chief Commissioner.\tThere  was  no\tsuch
\ndelegation  of\tauthority however under article 239  of\t the
\nConstitution  after the Constitution came into\tforce.\t Mr.
\nChatterjee  contends that in the absence of such  delegation
\nunder article 239 the Chief Commissioner of Ajmer cannot  be
\nregarded as “Central Government” as defined in section\t3(8)\n<\/p>\n
(b) (ii) of the General Clauses Act as it stands at  present
\nand consequently he could not be held to be the “appropriate
\nGovernment”  within the meaning of section 2(b) (ii) of\t the
\nMinimum Wages Act.  The Government of India Act, it is said,
\nstands\trepealed  by article 395 of  the  Constitution.\t  An
\norder issued under section 94(3) of the Government of  India
\nAct  cannot possibly be operative after the inauguration  of
\nthe Constitution, nor could it be regarded as an order\tmade
\nunder article 239 of the Constitution.\n<\/p>\n
   The\tcontention  does not appear to us to  be  sound.   A
\ncomplete reply to this argument is furnished, in our
\n\t\t     745<\/span>
\nopinion, by the provisions of clauses (1) and (2) of article
\n372 of the Constitution.  Article 372 runs as follows:\n<\/p>\n
    “372.   (1)\t  Notwithstanding   the\t  repeal   by\tthis
\nConstitution  of the enactments referred to in\tarticle\t 395
\nbut  subject to the other provisions of\t this  Constitution,
\nall  the law in force in the territory of India\t immediately
\nbefore the commencement of this Constitution shall  continue
\nin  force therein until altered or repealed or amended by  a
\ncompetent Legislature or other competent authority.
\n    (2)\t  For the purpose of bringing the provisions of\t any
\nlaw in force in the territory of India into accord with\t the
\nprovisions of this Constitution, the President may by  order
\nmake such adaptations and modifications of such law, whether
\nby  way\t of  repeal or amendment, as  may  be  necessary  or
\nexpedient, and provide that the law shall, as from such date
\nas may be specified in the order, have effect subject to the
\nadaptations   and  modifications  so  made,  and  any\tsuch
\nadaptation  or modification shall not be questioned  in\t any
\ncourt of law.”\n<\/p>\n
    Thus clause (1) of the article provides for continuance,
\nin force, of the existing laws notwithstanding the repeal by
\nthe Constitution of the enactments mentioned in article\t 395
\nand clause (2) provides for their adaptation with a view  to
\nbring\tthem  into  accord  with  the  provisions   of\t the
\nConstitution.\t The   Government  of\tIndia\tAct,   1935,
\nundoubtedly   stands   repealed\t by  article  395   of\t the
\nConstitution,  but  laws  made\tthereunder  which  were\t  in
\nexistence   immediately\t before\t the  commencement  of\t the
\nConstitution  would continue under article 372(1) and  could
\nbe  adapted :under the second clause of that  article.\t Mr.
\nChatterjee argues that article 372 has no application to the
\npresent\t case  inasmuch\t as the order made  by\tthe  Central
\nGovernment  under section 94(3) of the Government  of  India
\nAct  could  not be regarded as “a law in force”\t within\t the
\nmeaning of article 372.\t A distinction is sought to be\tmade
\nby the learned counsel between an “existing law” as  defined
\nin  article  366(10) and a “law in force” and it  is  argued
\nthat though an “order” can come within the definition
\n746<\/span>
\nof  “existing  law”,  it  cannot  be  included\twithin\t the
\nexpression  “law  in force” as used in article 372.   It  is
\nargued\tnext that even if the word “law” is wide  enough  to
\ninclude an order, that order must be a legislative and not a
\nmere  executive\t order\tpromulgated  by\t an   administrative
\nauthority,  and\t in support of this contention\tthe  learned
\ncounsel has relied on a number of cases decided by the Privy
\nCouncil and the different High Courts in India.\n<\/p>\n
     The first point does not impress us much and we do\t not
\nthink  that  there is any material difference between  ”  an
\nexisting  law”\tand  “a law in\tforce”.\t  Quite\t apart\tfrom
\narticle 366(10) of the Constitution, the expression  “Indian
\nlaw” has itself been defined in section 3(29) of the General
\nClauses Act as meaning any Act, ordinance, regulation, rule,
\norder,\tor  bye-law  which before the  commencement  of\t the
\nConstitution  had the force of law in any province of  India
\nor  part thereof.  In out opinion, the words “law in  force”
\nas used in article 372 are wide enough to include not merely
\na  legislative\tenactment but also any regulation  or  order
\nwhich  has the force of law.  We agree with  Mr.  Chatterjee
\nthat  an  order must be a legislative and not  an  executive
\norder  before it can come within the definition of law.\t  We
\ndo not agree with him however to ‘ at the order made by\t the
\nGovernor-General  in the present case under section 943)  of
\nthe Government of India Act is a mere executive order.\tPart
\nIV  of the Government of India Act, 1935, which begins\twith
\nsection\t 94, deals with Chief Commissioners’  Provinces\t and
\nsub-section  (3)  lays\tdown  how  a  Chief   Commissioner’s
\nProvince  shall be administered.  It provides that it  shall
\nbe  administered  by the Governor-General acting  through  a
\nChief  Commissioner  to such extent as he  thinks  fit.\t  An
\norder  made  by\t the Governor-General  under  section  94(3)
\ninvesting  the\tChief  Commissioner  with-the  authority  to
\nadminister  a province is really in the nature of  a  legis-
\nlative provision which defines the rights and powers of\t the
\nChief  Commissioner  in respect to that\t province.   In\t our
\nopinion\t such order comes within the purview of article\t 372
\nof  the Constitution and being “a law in force”\t immediately
\nbefore the commencement of the
\n747<\/span>
\nConstitution would continue to be in force under clause\t (1)
\nof the article.\t Agreeably to this view it must also be held
\nthat  such  order is capable of adaptation to  bring  it  in
\naccord\twith the Constitutional provisions under clause\t (2)
\nof  article 372 and this is precisely what has been done  by
\nthe  Adaptation\t of Laws Order, 1950.  Paragraph 26  of\t the
\nOrder runs as follows:\n<\/p>\n
     “Where any rule, order or other instrument was in force
\nunder any provision of the Government of India Act, 1935, or
\nunder\tany   Act  amending  or\t supplementing\t that\tact,
\nimmediately before the appointed day, and such provision  is
\nre-enacted   with   or\t without   modifications   in\t the
\nConstitution,  the said rule, order or instrument shall,  so
\nfar  as\t applicable,  remain in\t force\twith  the  necessary
\nmodifications  as  from the appointed day as if\t it  were  a
\nrule, order or instrument of the appropriate kind duly\tmade
\nby the appropriate authority under the said provision of the
\nConstitution, and may be varied or revoked accordingly.”\n<\/p>\n
     Thus  the\torder  made  under  section  94(3)  of\t the
\nGovernment  of India Act should be reckoned now as an  order
\nmade under article 239 of the Constitution and we are unable
\nto  agree  with\t Mr.  Chatterjee  that\tit  was\t beyond\t the
\ncompetence of the President under clause (2) of article\t 372
\nto  make  the adaptation order mentioned above.\t  The  first
\ncontention of Mr. Chatterjee therefore fails.
\n    Coming  now to the second point.  Mr. Chatterjee  points
\nout  that the preamble to the Minimum Wages Act as  well  as
\nits  title  indicate  clearly  that  the  intention  of\t the
\nLegislature  was  to  provide for fixing  minimum  wages  in
\ncertain\t employments only and that the Legislature  did\t not
\nintend\tthat  all employments should be brought\t within\t the
\npurview of the Act.  The schedule attached to the Act  gives
\na  list\t of  the employments and it is\tin  respect  to\t the
\nscheduled  employments\tthat  the minimum wages\t are  to  be
\nfixed.\tUnder section 27 of the Act however’ power has\tbeen
\ngiven to the “appropriate Government” to add to either\tpart
\nof the schedule any employment in respect to which it is  of
\nopinion\t that  minimum\twages  shall  be  fixed\t by   giving
\nnotification in a particular manner, and
\n748<\/span>
\nthereupon  the\tschedule shall, in its\tapplication  to\t the
\nState,\tbe deemed to be amended accordingly.  It  is  argued
\nthat  the  Act\tnowhere\t formulates  a\tlegislative   policy
\naccording  to which an employment shall be chosen for  being
\nincluded   in  the  schedule.\tThere  are   no\t  principles
\nprescribed and no standard laid down which could furnish  an
\nintelligent  guidance  to the  administrative  authority  in
\nmaking\tthe selection.\tThe matter is left entirely  to\t the
\ndiscretion  of the “appropriate Government” which can  amend
\nthe  schedule  in any way it likes and\tsuch  delegation  of
\npower virtually amounts to a surrender by the Legislature of
\nits essential legislative function and cannot be held valid.\n<\/p>\n
     There  is undoubtedly an element of delegation  implied
\nin  the\t provision  of\tsection\t 27  of\t the  Act,  for\t the
\nLegislature  in a sense, authorises another body,  specified
\nby  it,\t to do something which it might do itself  But\tsuch
\ndelegation,  if it can be so called at all, does not in\t the
\ncircumstances  of  the\tpresent\t case appear  to  us  to  be
\nunwarranted  and unconstitutional.  It was said by  O’Connor
\nJ.  of the High Court of Australia in the case of Baxter  v.
\nAh Way (1):\n<\/p>\n
   “The aim of all legislatures is to project their minds as
\nfar as possible into the future, and to provide in terms  as
\ngeneral as possible for all contingencies likely to arise in
\nthe  application  of  the law.\tBut it is  not\tpossible  to
\nprovide\t  specifically\t for  all  cases   and,\t  therefore,
\nlegislation  from the very earliest times, and\tparticularly
\nin   modern  times,  has  taken\t the  form  of\t conditional
\nlegislation,  leaving  it  to some  specified  authority  to
\ndetermine  the\tcircumstances  in which\t the  law  shall  be
\napplied, or to what its operation shall be extended, or\t the
\nparticular  class of persons or goods to which it  shall  be
\napplied.”\n<\/p>\n
    The facts of this Australian case, in material features,
\nbear  a\t striking resemblance to those of the  present\tone.
\nThe question raised in that case related to the validity  of
\ncertain\t provisions  of the Customs Act of  1901.   The\t Act
\nprohibited  the\t importation  of certain  goods\t which\twere
\nspecifically mentioned and then gave power to the  Governor-
\nGeneral in Council to include, by
\n(1)  8 C.L.R. 626 at 637.\n<\/p>\n
\t\t\t    749<\/span><\/p>\n
proclamation,  other goods also within the prohibited  list.
\nThe  validity of the provision was challenged on the  ground
\nof  its being an improper delegation of legislative  powers.
\nThis  contention was repelled and it was held that this\t was
\nnot  a\tcase  of  delegation of\t legislative  power  but  of
\nconditional legislation Of the type which was held valid  by
\nthe  Privy Council in the case of Reg v. Burah (1).  It\t can
\nindeed be pointed out that in Burah’s case what was left  to
\nthe   Lieutenant  Governor  was\t the  power  to\t apply\t the
\nprovisions  of an Act to certain territories at\t his  option
\nand  these  territories to which the Act could\tbe  extended
\nwere  also specified in the Act.  The Legislature  could  be
\nsaid  therefore to have applied its mind to the question  of
\nthe  application of the law to particular places and it\t was
\nleft to the executive only to determine when the laws  would
\nbe  made operative in those places.  According to  the\tHigh
\nCourt of Australia the same principle would apply even\twhen
\nthe  executive\tis given power to determine  to\t what  other
\npersons\t or  goods the law shall be extended  besides  those
\nspecifically  mentioned therein.  Whether a  provision\tlike
\nthis strictly comes within the description of what is called
\n“conditional   legislation”  is\t not  very  material.\t The
\nquestion  is, whether it exceeds the limits  of\t permissible
\ndelegation.  As was said by O’Connor J. himself in the above
\ncase, when a Legislature is given plenary power to legislate
\non a particular subject there must also be an implied  power
\nto  make laws incidental to the exercise of such power.\t  It
\nis  a  fundamental  principle  of  constitutional  law\tthat
\neverything necessary to the exercise of a power is  included
\nin  the grant of the power.  A Legislature cannot  certainly
\nstrip itself of its essential functions and vest the same on
\nan extraneous authority.  The primary duty of law making has
\nto  be discharged by the Legislature itself  but  delegation
\nmay be resorted to as a subsidiary or an ancillary  measure.
\nMr.  Chatterjee\t contends  that\t the  essential\t legislative
\nfunction  is to lay down a policy and to make it  a  binding
\nrule  of conduct.  This legislative policy, he says, is\t not
\ndiscernible anywhere in the
\n(1)  3 App.  Cas. 889.\n<\/p>\n
96<\/span>
\n750<\/span><\/p>\n
provisions of this Act and consequently there is no standard
\nor  criterion to guide the administrative authority  in\t the
\nexercise of the subsidiary legislative powers.\t  We do\t not
\nthink that this is the correct view to take. The legislative
\npolicy\tis apparent on the face\t  of the present  enactment.
\nWhat  it aims at is the statutory fixation of minimum  wages
\nwith a view to obviate the chance of exploitation of labour.
\nThe  Legislature undoubtedly intended to apply this Act\t not
\nto  all\t industries but to those industries  only  where  by
\nreason of unorganized labour or want of proper\tarrangements
\nfor  effective regulation of wages or for other\t causes\t the
\nwages  of labourers in a particular industry were very\tlow.
\nIt is with an eye to these facts that the list of trades has
\nbeen  drawn up in the schedule attached to the Act  but\t the
\nlist  is not an exhaustive one and it is the policy  of\t the
\nLegislature  not  to lay down at once and for  all  time  to
\nwhich  industries the Act should be applied.  Conditions  of
\nlabour vary under different circumstances and from State  to
\nState and the expediency of including a particular trade  or
\nindustry within the schedule depends upon a variety of facts
\nwhich  are  by\tno  means uniform  and\twhich  can  best  be
\nascertained  by\t the person who is placed in charge  of\t the
\nadministration\tof a particular State.\tIt is to  carry\t out
\neffectively  the  purpose of this enactment that  power\t has
\nbeen  given to the “appropriate Government” to decide,\twith
\nreference to local conditions, whether it is desirable\tthat
\nminimum\t wages\tshould be fixed in regard  to  a  particular
\ntrade or industry which is not already included in the list.
\nWe do not think that in enacting section 27 the\t Legislature
\nhas  in\t anyway stripped itself of its essential  powers  or
\nassigned  to  the administrative authority anything  but  an
\naccessory or subordinate power which was deemed necessary to
\ncarry out the purpose and the policy of the Act.  The second
\ncontention of Mr. Chatterjee cannot therefore succeed.\n<\/p>\n
     The  third and the last point raised by Mr.  Chatterjee
\nis  directed  against  the notification of  the\t Chief\tCom-
\nmissioner  by  which he extended the term  of  the  Advisory
\nCommittee  till the 20th of September, 1952.  It  is  argued
\nthat the term of the committee, as originally
\n751<\/span>
\nfixed,\texpired on the 16th of July, 1952, and on  and\tfrom
\nthe  17th  of July all the members of the  committee  became
\nfunctus\t  officio.   The  Commissioner\ttherefore  was\t not
\ncompetent  to  give a fresh lease of life to  the  committee
\nwhich was already dead.\t We do not think that there is\tmuch
\nsubstance  in this contention.\tRule 3 of the  rules  framed
\nunder  section\t30 of the Act expressly lays down  that\t the
\nState  Government may fix the term of the committee when  it
\nis  constituted\t and  may from time to\ttime  extend  it  as
\ncircumstances require.\tThe State Government had therefore a
\nright to extend the term of the committee in such way as  it
\nliked.\t The only question is whether it could do  so  after
\nthe  period  originally\t fixed\thad come  to  an  end.\t Mr.
\nChatterjee  relied, in this connection,. upon certain  cases
\nwhich held that the Court could not grant extension of\ttime
\nin  an arbitration proceeding after the award was filed\t and
\nan award made after the prescribed period is a nullity.\t  In
\nour  opinion  this  analogy is not at  all  helpful  to\t the
\nappellants in the present case.\t It is not disputed that the
\ncommittee did not function at all and did no work after\t the
\n16th of July, 1952, and before the 21st of August next\twhen
\nits term was extended.\tNo report was submitted during\tthis
\nperiod and there was no extension of time granted after\t the
\nsubmission  of the report.  Assuming that the order  of\t the
\n21st  August, 1952, could not revive a committee  which\t was
\nalready\t dead,\tit  could  certainly  be  held\tthat  a\t new
\ncommittee  was\tconstituted on that date and even  then\t the
\nreport\tsubmitted  by it would be a perfectly  good  report.
\nQuite  apart from this, it is to be noted that\ta  committee
\nappointed  under  section 5 of the Act is only\tan  advisory
\nbody  and that the Government is not bound to accept any  of
\nits\t recommendations.      Consequently,\t  procedural
\nirregularities of this character could not vitiate the final
\nreport\twhich  fixed  the minimum wages.   In  our  opinion,
\nneither\t of  the  contentions raised  in  support  of  these
\nappeals\t can succeed and both the appeals  therefore  should
\nfail and stand dismissed with costs.\n<\/p>\n
\t\t\t\t\tAppeals dismissed.\n<\/p>\n
752<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Edward Mills Co. Ltd., Beawar, … vs The State Of Ajmer And Another on 14 October, 1954 Equivalent citations: 1955 AIR 25, 1955 SCR (1) 735 Author: B Mukherjea Bench: Mahajan, Mehar Chand (Cj), Mukherjea, B.K., Bose, Vivian, Jagannadhadas, B., Aiyyar, T.L. Venkatarama PETITIONER: THE EDWARD MILLS CO. LTD., BEAWAR, […]<\/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-86726","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Edward Mills Co. Ltd., Beawar, ... vs The State Of Ajmer And Another on 14 October, 1954 - 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\/the-edward-mills-co-ltd-beawar-vs-the-state-of-ajmer-and-another-on-14-october-1954\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Edward Mills Co. 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