The Edward Mills Co. Ltd., Beawar,
& Ors Vs. The State of Ajmer & ANR  INSC 91 (14 October 1954)
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)
Constitution of India, Art. 372-Words
"law in force"Meaning ofWhether 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 ofUnder s. 5 of the Act-Extension of its term beyond the
period already expired-Validity-Proceduraral irregularitiesWlhether vitiate the
The words 'law in force' as used in Art. 372
of the Constitution 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 in force under
clause (1) of the article. Such an order is capable 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
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.
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 subsequently 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, purporting to act as the "appropriate
Government" of the State, published a notification in terms of section 27
of the Act giving three months' notice of his intention to include employment
in the textile mills as an additional item in Part I of the schedule. On the
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 membership 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 representatives 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 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
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 Governor General 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 Commissioner'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 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 there under
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 legislative 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 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.
96 750 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
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
The third and the last point raised by Mr.
Chatterjee is directed against the notification of the Chief Commissioner by
which he extended the term of the Advisory Committee till the 20th of
September, 1952. It is argued that the term of the committee, as originally 751
fixed, expired on the 16th of July, 1952, and on and from the 17th of July all
the members of the committee became funct us 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.