# EDWARD MILLS CO. LTD., BEAWAR, AND OTHERS v. THE STATE OF AJMER AND ANOTHER

- **Citation:** [1955] 1 S.C.R. 735
- **Court:** Supreme Court of India
- **Decided:** 1954-10-14
- **Bench:** Mehr Chand Mahajan C.J, Mukherjea, V1v1AN BosE, Jagannadhadas, Venkatarama Ayyar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/edward-mills-co-ltd-beawar-and-others-v-the-state-of-ajmer-and-another-388
- **Pages:** 17

## Headnote

Constitution of India, Art. 372-Words "law in force"-Meaning of-Whether include regulation or order having the force of law
-An order made under s. 94(3) of the Government of India Act, 1935
-Whether "law in
force" and capable of adaptation-Minimum
Wages Act, 1948 (Act XI of 1948), s. 27-"Appropriate Government"
-Given power to add to either part of schedule-Any employment in
respect of which minimum rates of wages should be fixed-Whether
such power warranted and not unconstitutional and within the limits
of permissible delegation-Advisory committee-Appointment
of--
Under s. 5 of the Act-Extension of its term beyond the period already
expired-Validity-Procedural irregularities-Whether
vitiate
the
final report.
9-88 S. C. India/59
1954
Saghir Ahmad
v.
The State of
U.P.
and Others.
Mukhnjea J.
1954
October 14
1954
&lward MillsCo.
Ltd.
v.
T lu Stai. of
4imer
and Anctlur.
736
SUPREME COURT REPORTS
[1955]
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 inforce 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 lo be amended accordingly. There is
an element of delegation
impli~d 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 puq.x>ses 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 i~ 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 ter1n of the committee appointed
·under s. 5 of the Act and to extend it from time to time as circumstances require.
The period originally fixed had expired
.extended subsequently.
It did not function
and
and
its term was
submitted
no
••
- '
-
S.C.R.
SUPREME COURT REPORTS
737
report during the
period.
Assuming that the subsequent order
could not revive

## Text

, ...
S.C.R.
SUPREME COURT REPORTS
_735
The Australian Constitution indeed has no provision
like article 19(1) (g) of the Indian
Constitution and it
is certainly an arguable point as to whether the rights
of individuals alone are dealt with in article 19(1) (g)
of the
Constitution leaving the freedom of trade and
commerce, meaning by that expression 'only the free
passage of persons and goods' within or without a
State
to be dealt with under article 301 and the
following
articles.
We have thus indicated only the points that could
be. raised and the possible
views that could be taken
but as we have said already, we do not desire to express
any final opinion on these points as it is unnecessary
for purposes of the present case.
The result is that in
our opinion the
appeals should be allowed and the
judgment of
the High Court set aside. A writ in the
nature of mandamus shall issue against the respondents
in these appeals restraining
them
from enforcing the
provisions of the U. P. State Road Transport Act, 1951,
against the appellants or the men working under them.
There will be no order as to costs.
Appeals allowed.
THE
EDWARD
MILLS
CO.
LTD.,
BEAWAR,
AND OTHERS
v.
THE STATE OF AJMER AND ANOTHER.
[MEHR CHAND MAHAJAN C.J., MUKHERJEA,
V1v1AN BosE, JAGANNADHADAS
and VENKATARAMA AYYAR JJ.J
Constitution of India, Art. 372-Words "law in force"-Meaning of-Whether include regulation or order having the force of law
-An order made under s. 94(3) of the Government of India Act, 1935
-Whether "law in
force" and capable of adaptation-Minimum
Wages Act, 1948 (Act XI of 1948), s. 27-"Appropriate Government"
-Given power to add to either part of schedule-Any employment in
respect of which minimum rates of wages should be fixed-Whether
such power warranted and not unconstitutional and within the limits
of permissible delegation-Advisory committee-Appointment
of--
Under s. 5 of the Act-Extension of its term beyond the period already
expired-Validity-Procedural irregularities-Whether
vitiate
the
final report.
9-88 S. C. India/59
1954
Saghir Ahmad
v.
The State of
U.P.
and Others.
Mukhnjea J.
1954
October 14
1954
&lward MillsCo.
Ltd.
v.
T lu Stai. of
4imer
and Anctlur.
736
SUPREME COURT REPORTS
[1955]
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 inforce 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 lo be amended accordingly. There is
an element of delegation
impli~d 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 puq.x>ses 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 i~ 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 ter1n of the committee appointed
·under s. 5 of the Act and to extend it from time to time as circumstances require.
The period originally fixed had expired
.extended subsequently.
It did not function
and
and
its term was
submitted
no
••
- '
-
S.C.R.
SUPREME COURT REPORTS
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. Burali (3 App.
Cas. 889) referred to.
CrVIL
APPELLATE
JurusmcTioN:
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, /. 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
1954
Edward Mills Co.
Ltd.
v.
The Stat. ef
Ajmer
and Another.
1954
Ei!Ward Mills Co.
l.Jd.
v.
The Sate of
Ajmer
and Another.
Muk~erjea J.
738
SUPREME COURT REPORTS
fl955J
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 tJires 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 Z(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
prov1s1ons
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
•
-
B.C!R.
SUPREME "COURT REPORTS
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
an~l there sh.all
be independent persons as well, not exceedmg one-thtrd
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 them.
On the 16th of March, 1949, the Central
Government
issued a notification, in exercise of
its
powers under
section 94(3)
of the
Government of India Act, 1935,
directing that the functions of the "appropriate
Government'' under the
Minimum
Wages
Act,
would, in
respect
of
every Chief
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 month's 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
1954
Edward Mills Co.
Ltd.
v.
Tk State of
Ajmer
and Another,
Mukherjea J.
1954
&!ward Mills Co.
Ltd.
'·V.
The Stat. of
Ajmer
and An.other.
Mukherjea J.
740
. SUPREME COURT REPORTS
[1955}
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 1
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 \Ind 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 bar~ subsistence
of life
bμt 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
'
-
-
•
-.
S.C.R.
SUPREME COURT REPORTS
741
May, 1952, he wrote a letter to the Chief Commissioner
stating that he was proceeding to Europe on the 3rd
June, 1952, for a period of three months. He expressed
his willingness to assist the Chairman in the preparation
of the report after he came back from Europe by the
first week of September, next provided 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 be sent
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
1954
Edward Mills Co.
Ltd.
v.
T!te Stale qf
Ajmlr
nd Anot!ter.
Mttk!tetjea J.
&/ward Mi/ls Co.
Ltd.
v.
Stateef
Aj,,,...
and Anothtr.
MuMer;feaJ.
742
SUPREME COURT REPORTS
[1955]
minimum rates of wages for the employees in the
textile industry in the
State of
Ajmer,
under the
signature of the Secretary to the Chief Commissioner
and stating that these rates should be deemed to be in
force from the 1st of September, 1952.
Feeling aggrieved by
this notification the three
appellants in Appeal No. 138 of 1954 presented
an
application under article 226 of the Constitution before
the
Judicial
Commissioner of Ajmer
on
the
31st
October,
1952,
praying for a writ in the nature of
mandamus ordering the State of Ajmer not to enforce
the same.
A similar application was filed by the Bijay
Cotton Mills, the appellant in the other appeal, on the
6th of November, 1952.
Both the petitions were heard
toget_her 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 Sth 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
..
-
•
--
·s.C.R.
SUPREME COURT REPORTS
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 meal), 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
<lefine<l 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
1954
Edward Mills Co.
Llt/,
v.
State of
Ajmer
and Another •
Mukherjea J,
1954
Edward Mills Co.
Ltd.
v.
State ef A.faitr
and Another.
Mukhtrjea ].
744
SUPREME COURT REPORTS
fl955]
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 at
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. Agreeably
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 expressioni
"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 autho---
rity 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 inaugura--
tion of the
Constitution, nor could it be regarded as an·
order made under article 239 of the
Constitution.
The contention does not appear to us to be sound_
A complete reply to this argument is furnished, in our
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,
.
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-
•
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S.C.R.
SUPREME COURT REPORTS
745
opm1on, 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
th._e provisions of
any
law in force in the territory of India into accord
with the provisions of this
Constitution, the President
may by order make such adaptations and modifications
of such law, whether by way of repeal or amendment~
as may be necessary or expedient, and provide that the·
law shall, as from such date as may be specified in the
order,
have
effect
subject to
the
adaptations
and
modifications so made,
and
any such adaptation or
modification
shall not be questioned in any court of
law."
Thus clause (1) of the article provides for continuance, in force, of the existing laws notwithstanding the
repeal by the
Constitution of the enactments mentioned
in article 395 and clause (2) provides for their adaptation
with a view to bring them into accord with the
provisions of the
Constitution. The
Government of
India
Act, 1935, undoubtedly stands repealed by article
395 of the
Constitution, but
laws made thereunder
which were in existence immediately
before the
commencement of the
Constitution would continue under
article 372(1) and could be adapted under the second
clause of that article. Mr. Chatterjee argues that article
372 has no application to the present case inasmuch as
the order made bv 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
1954
Edward Mills <Jo..
Ltd.
"•
State ef Ajmer
and Another.
Mukherjea j.
1954
Edward Mills
Co. Ltd.
v.
State qf Ajmu
ant! Anotkr.
Muklzerjea J.
746
SUPREME COURT REPORTS
(1955]
of "existing
law", it cannot be included
within the
expression "law in force" as used in article 372.
It js
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
d.ecided 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 our opinion,
the words "law in force" as used in article 372 are
wide enough to include not merely a legislative enactment but
also any regulation or order which has the
force of law. We agree with Mr. Chatterjee that an
order m\!St be a legislative and not an executive order
before it can
come within the definition of law. We
do not agree with him however that the order made by
the Governor-General in the present case under section
94(3) 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
Commissioner's
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
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•
S.C.R.
SUPREME COURT REPORTS
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 :
"\\There 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
Co.nstitution, 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
1954
Edward Mills,
Co. Ltd.
v.
State of Ajmer
and Another.
MukherjeaJ •.
1954
Edward Mills
Co. Ltd.
v.
T1" State ef Ajmer
and Another.
Muklmjea ].
748
SUPREME COURT REPORTS
[19551
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('):
"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 Amtralian case, in material features,
bear a striking resemblance to those of the present one.
The question raised in that case related to the validity
-0f 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
(') 8 C. L. R. 626 at 637.
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S.C.R.
SUPREME COURT REPORTS
749
proclamation, other goods also within the prohibited
list. The validity of the provision was challenged on the
ground of its being an improper delegation of legislative
powers. This
contention
was
repelled
and
it was held that
this was not a case of delegation
of legislative power but
of
conditional
legislation
of the
type
which was
held
valid
by
the Privy
Council in the case of Reg v. Burah (1). It can indeed
be pointed out that in Burah's case what was left to
the Lieutenant Governor was the power to apply the
provisions of an Act to certain territories at his option
:and these territories to which the Act could be extend-
,ed 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
specifi-
•call y 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
Legisla~ure 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 legisJative policy, he says, is not discernible anywhere in the
(1) 3 App. Cas. 889.
1954
Edward Mills
Co.Ltd.
v.
The State ef
A}rrJe'
and Another.
Mukhtl;j,a J.
1954
Edward Mills
Co. Ltd.
v.
The Stal< of
Ap
and Another.
Muk/rerjea J.
750
SUPREME COURT REPORTS
[1955}
provisions of this
Act and consequently there is no.
standard
or
criterion
to guide
the
administrativeauthority 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
cau·ses the wages of labourers in a particular industry
were very low. It is with an eye to these facts that the
list of trades has been drawn up in the schedule attached
to the Act but the list is not an exhaustive one and it
is the policy of the Legislature not to lay down at once
and for all time to which industries the Act should be
applied.
Conditions of
labour vary
under
different
circumstances and from State
to
State and the expediency of including a particular trade or industry within
the schedule depends upon a variety of facts which are
by no means uniform and which can best be ascertained
by the person who is placed in charge of the administration of a particular
State.
It is to carry out effectively
the
purpo~e of
this enactment that power has
been
given to the "appropriate Government" to decide, with
reference
to local conditions, whether it is desirable
that minimum wages should be fixed in regard to a
particular
trade or
industry which is
not already
included in the list. We do not think that in enacting
section 27 the Legislature has in any way stripped itself
of its essential powers or assigned to the administrativeauthority
anything but an accessory or subordinate
power which was deemed
necessary to carry out the
purpose
and the
policy
of the Act.
The
second
contention of Mr. Chatterjee cannot therefore succeed.
The tl1ird 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
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S.C.R.
SUPREME COURT REPORTS
751
fixed, expired on the 16th of July, 1952, and on and
from the 17th of July all the members of the committee
became functus officio.
The
Commissioner
therefore
was not competent to give a fresh lease of life to the
committee which was already dead. We do not think
that there is much substance in this contention.
Rule
3 of the
rules framed under
section 30 of the Act
expressly lays down that the
State
Government may
fix the term of the
committee
when it is constituted
and may from time to time extend it as circumstances
require. The State
Government had therefore a right
to extend the term of the committee in such way as it
liked. The only question is whether it could do so
after the period
originally fixed had come to an end.
Mr. Chatterjee relied, in this connection,
upon certain
cases which held that the Court could not grant extension of time in an
arbitration proceeding after the
award was filed and an awarJ made after the prescribed
period is a nullity. In our opinion this analogy is not
at all helpful to the appellants in the present case. It
is not disputed that the committee did not function at
all and did no work after the 16th of July, 1952, and
before the 21st of
August next when
its term was
extended. No report was submitted during this period
and there was no extension of time granted after the
submission of the report. Assuming that the order of
the 21st August, 1952, could, not revive a committee
which was already dead, it could certainly be held that
a new committee was constituted on
that date and
even then the report submitted by it would be a
perfectly good report. Quite apart from this, it is to be
noted that a committee
appointed under section 5 of
the
Act is only an advisory body and that the
Government is not bound to accept any of its recommendations.
Consequently, procedural irregularities of this
character could not vitiate the final report which fixed
the minimum wages.
In our opinion, neither of the
contentions raised in support
of these appeals can
succeed and both the appeals therefore should fail and
stand dismissed with costs.
Appeals dismissed.
10-88 S C India/59
-· -
Edward Mills
Co. Lid.
v.
Th.Stale of
Ajmer
and another
Mukherjea J.