# STATE OF ASSAM & ANR v. BHARAT KALA BHANDAR LTD. & ORS

- **Citation:** [1967] 3 S.C.R. 490
- **Court:** Supreme Court of India
- **Decided:** 1967-04-07
- **Case number:** Civil Appeals Nos. 2114 to 2134 of 1966
- **Bench:** K. N. Wanchoo, V. Bhargava, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-assam-anr-v-bharat-kala-bhandar-ltd-ors-4069
- **Pages:** 18

## Headnote

Defence of India Rules, 1962, r. 126AA(1) and
(4)-Notification
under sub. r. (1)-When can be challenged-Notification under sub. r.
( 4 )-If could be issued on the subjective satisfaction of Government~
Procedure to be fol/owed-Jf notificatlo.n could be made retrospective.
Under r. 126AA of the Defence elf India Rules, 1962, the Central or
State Government may notify employments and regulate wages and
-Other conditions of service of persons engaged in such notified employments, for securing public safety and maintenance of supplies and services necessary to the life of the community.
.
On 26th September, 1964, the Governor of Assam notified under r.
126AA( 1) a large number of employments as he was of opinion that
1hey were essential for securing the public safety and for
maintaining
oSUpplies and services necessary to the life of the community, and under
sub. r. ( 4) ordered payment of rupees ten per mensem as ad hoc cost of
living allowance to certain workers in the notified employments. On 4th
November, 1964, he issued
another
notification under sub r. (4) by
which be ordered payment of 38.46 paise as ad hoc cost of living allowance per day to persons engaged on daily wages in the notified employments. The two notifications under sub. r. ( 4) were issued to see that there
was a contented Jabour force during emergency. Though the second notifica·
1ion was dated November 4, 1964, the Labour Department of the State
-Oovernment advised one of the respondents to pay the amount retrospectively from September 26, 1964.
The responde.n!s challenged the validity of the three notifications by
writ petitions in the High Court. The High Court held that :
A
B
c
D
E
(i) The notification under r. 126AA(l) was mala fide in law and
F
should be struck down, because, the conditions precedent to the exercise
-0f the power conferred by the rule, namely, that the Governor should
form the necessary opinion had not been satisfied since; (a) both
the
purposes, namely public safety and maintenance of sueplies and services,
,L
were mentioned as the basis of the notification without mdicating which of
the two purposes led the State Government to issue the notification; (b)
a large number Of employments were included in one notification; and
(c) the counter-affidavit of the State Government stated that the notificaG
tion was issued for purposes of "defence" also though the notification itself
did not ment.ion "d~fence", ·thus showing that the Governor had not applied
his mind.
· •·
(ii) The two notifications under r. 126AA(~) were also ma/!' fide
in law and should be struck down because; (a) 1t was not stated m the
notifications nor' was it shown how the fixation of wages in the employ·
ments was necessary for the purpose of securing p_ublic safety and
~or
maintaining supplies and services necessary to the hfe of t.h~ community
oand (b) the notifications replaced proceedmgs under the M1n1mum Wages
Act which were taken in respect of some of the notified employments.
H
B
'
c
D
E
F
G
H
ASSAM v. KALA BHANDAR (Wanchoo, /.)
491
In appeal to this Court,
HELD : (i) The notification under r. 126AA( 1) should be upheld
with respect to all employments except veneer mills.
(501 G]
A notification under r. 126AA(l) could be issued on the subjective
satisfaction of the Q>ntral or State Government as to the various purPoses
mentioned in the su~rule, which include securing public safety and
maintenance of supplies and services necessary to the life of the community. That opinion could not be challenged in Court unless it was
shown to be ma/a fide, or that no reasonable person could come to that
conclusion wilh respect to tho employments specified in the notification.
[499 D, F]
(a) Tue fact that the notification gave both purposes for its issue did
not show .that· the. · G<ivemor did not 'apply his mmd to the conditions.
When the Governor said that the employments were included in the
1111tlficaiion for two purposes; he obviously held the opinion that the employments we

## Text

_Characters 0–39,677 of 54,686. This is a partial read: ask again with offset=39677 for what follows._

STATE OF ASSAM & ANR.
v.
BHARAT KALA BHANDAR LTD. & ORS.
April 7, 1967
[K. N. WANCHOO, V. BHARGAVA AND G. K. MITTER, JJ.J
Defence of India Rules, 1962, r. 126AA(1) and
(4)-Notification
under sub. r. (1)-When can be challenged-Notification under sub. r.
( 4 )-If could be issued on the subjective satisfaction of Government~
Procedure to be fol/owed-Jf notificatlo.n could be made retrospective.
Under r. 126AA of the Defence elf India Rules, 1962, the Central or
State Government may notify employments and regulate wages and
-Other conditions of service of persons engaged in such notified employments, for securing public safety and maintenance of supplies and services necessary to the life of the community.
.
On 26th September, 1964, the Governor of Assam notified under r.
126AA( 1) a large number of employments as he was of opinion that
1hey were essential for securing the public safety and for
maintaining
oSUpplies and services necessary to the life of the community, and under
sub. r. ( 4) ordered payment of rupees ten per mensem as ad hoc cost of
living allowance to certain workers in the notified employments. On 4th
November, 1964, he issued
another
notification under sub r. (4) by
which be ordered payment of 38.46 paise as ad hoc cost of living allowance per day to persons engaged on daily wages in the notified employments. The two notifications under sub. r. ( 4) were issued to see that there
was a contented Jabour force during emergency. Though the second notifica·
1ion was dated November 4, 1964, the Labour Department of the State
-Oovernment advised one of the respondents to pay the amount retrospectively from September 26, 1964.
The responde.n!s challenged the validity of the three notifications by
writ petitions in the High Court. The High Court held that :
A
B
c
D
E
(i) The notification under r. 126AA(l) was mala fide in law and
F
should be struck down, because, the conditions precedent to the exercise
-0f the power conferred by the rule, namely, that the Governor should
form the necessary opinion had not been satisfied since; (a) both
the
purposes, namely public safety and maintenance of sueplies and services,
,L
were mentioned as the basis of the notification without mdicating which of
the two purposes led the State Government to issue the notification; (b)
a large number Of employments were included in one notification; and
(c) the counter-affidavit of the State Government stated that the notificaG
tion was issued for purposes of "defence" also though the notification itself
did not ment.ion "d~fence", ·thus showing that the Governor had not applied
his mind.
· •·
(ii) The two notifications under r. 126AA(~) were also ma/!' fide
in law and should be struck down because; (a) 1t was not stated m the
notifications nor' was it shown how the fixation of wages in the employ·
ments was necessary for the purpose of securing p_ublic safety and
~or
maintaining supplies and services necessary to the hfe of t.h~ community
oand (b) the notifications replaced proceedmgs under the M1n1mum Wages
Act which were taken in respect of some of the notified employments.
H
B
'
c
D
E
F
G
H
ASSAM v. KALA BHANDAR (Wanchoo, /.)
491
In appeal to this Court,
HELD : (i) The notification under r. 126AA( 1) should be upheld
with respect to all employments except veneer mills.
(501 G]
A notification under r. 126AA(l) could be issued on the subjective
satisfaction of the Q>ntral or State Government as to the various purPoses
mentioned in the su~rule, which include securing public safety and
maintenance of supplies and services necessary to the life of the community. That opinion could not be challenged in Court unless it was
shown to be ma/a fide, or that no reasonable person could come to that
conclusion wilh respect to tho employments specified in the notification.
[499 D, F]
(a) Tue fact that the notification gave both purposes for its issue did
not show .that· the. · G<ivemor did not 'apply his mmd to the conditions.
When the Governor said that the employments were included in the
1111tlficaiion for two purposes; he obviously held the opinion that the employments were essenti111 for both purposes,
and, it was not necessary
for him to ~cify which of the employments were essential .for one purpose and which we~e essential fo~ the other pUrP~e. Where c~rtain employments are essential for the maintenance of supplies and services necessary to the life of the community, the Governor may very well come to
the conclusion that !hose employments are also necessary for securing
public safety, for, if supplies and services necessary to the life of the
community are not maintained, there may be danger to public safe.ty.
[498 C-E; 500 E-F]
(b) There is nothing in r. 126AA(l) which prevents a notification
from being issued With respect to any number of employments, and the
mere fact that a notification included within it a large number of employments is no w.ound· for holding that the Governor did not apply his
mind to. the conditions. [ 498 B-C]
(c) ·As regards the word "defence", it crept into the counter-affidavit
meChanically m reply to the petitioners' contention using that word in
some of the writ petitions. ·But that should not have led the High Court
to the conclusion that the Government had no clear conception of its
powers, for, the High Court had only to see whether the conditions were
complied with at the time of the issue of the notification. [ 499 B-C]
A• regards veneer mills which carried on the process of having finer
wood on inferior wood for purpooes of beautifying furniture; it cannot
be said by any reasonable person to be essential for the maintenance of
liupplfes and .services neces~ary to tlie
life of the community and for
secunng pubbc safety. This Court
could therefore strike
down the
no,ificat.ion With .. respect to venee~ mills treating the notification as s.o
many •mgle notificatioos each relating to an employment rolled into one
[SOI A-CJ
'
.
(ii) The reasons given by the
High Court for striking down
the
two notifications .un~er ,sub-r. (4), were erron~us, because: (a) It was
not necessary to recite 1n the notification under sub-r. ( 4) that action
W!LS. being ta~en for the purpose of securing public safety and for maintainmg supphes and. serv1c~ . nec~sary to t.he. life of the community.
N.or does the sub-rule require that the notification should show that the
two purposes would in fact' be achieved by the provision made thereunder
[~D-E]
,
(b} The power· under the sub•rule is not for fixation of minimum
Wllges, but to regulate wages and ill analogous to the power of industrial
tribunal•. Therefore, the fact that there u provision in the Minimum
Wages Act for fixation of minimum ·wages was no ground for holding
that the power exercised under sub-r. ( 4) was colourable. (502 F]
492
SUPllEMB COURT llEPORTS
(1967) 3 S.C.R.
The two notifications should however be struck down, because, before
the Government exercises the power under sub-rule ( 4), it should consult
the interests concerned, as the order is not to be passed merely on the
subjec~ive satisfaction of the Government, even when there was an emergency. [506 A-Bl
Whether the power under a particular provision has to be exercised
purely on the subjccdve satisfaction of Government or o~her authority or
has to be exercised subject to some objective tests depends upon a number of factors.
The language of the provision, the nature of the power
conferred and the purpose for which it has been conferred, the circumstances and the manner of the exercise of power, what things are affected
by such exercise and how, and other relevant factors in the context of
the particular provision may have to be considered in this behalf. The
intention of .the legislature ts primarily to be gathered from the language
used and where the language used is plain and unambiguous, effect must
be given to it and there is nothing more to be said. But when the language
is not clear all these factors must be weighed to arrive at the final conclusion. [504 E-H]
The power under sub-r. ( 4) is of a far-reaching nature and not only
deals with wages but also with other conditions of service, and, in
an
emergency may practically supersede all industrial adjudication. It is unlikely that such wide powers were conferred on the Government to be
exercised purely on its sub/'ective satisfaction without even consulting the
interests concerned, special y, when. the language of the sub-rule is not
plain and unambiguous indicating that the power could be so exercised.
The power, no doubt, was intended to be exercised in an emergency and
decisions may have to be taken quickly and delay should be avoided;
even so, the Government should evolve some procedure by which there
would be some kind of collection of data with the help of the in•erests
concerned and some kind of hearing or conference. 'The
consulta!ion
should be employment by employment, for, it may· be that the needs of
every employment may not be the same. In the present case. there was
some indication .. that the ·notifications were not issued arbitrarily but on
the basis of a repon submitted by a sul>-committee consisting of Govern·
ment officials and representatives of the employers and employee;; but
it was not a consultation employment by employment, and therefore, the
consultation fell short of the legal requirements.
[505 D-H; 506 D·H;
507F]
Kumaon Motor Owners' Union Ltd. v. The State of U.P. [1966] 2
S.C.R. 121, distinguished.
Further, as regards the second notification under r. 126AA(4)
the
Government could not and did not make it with retrospective effect; and
the Labour Department was in error in writing to one of the respondent·
mills to make the payments retrospectively. [S02 A-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2114
to 2134 of 1966.
Appe~ls from the judgment and order dated March 25, 1966
of the Assam and Nagaland High Court in Civil Rule Nos. 104,
105, 147, 149, 150, 169, 170. 174, 175. 205. 206, 207, 237, 238,
246, 258, 259, 262, 263, 264 and 265 of 1965 respectively.
Purshottam Tricumdas and Nauriit Lal,
for the appe1lants
(in C. As. Nos. 2114-2120 of 1960).
A
B
c
D
E
F
G
H
ASSAM v. KALA BHANDAR (Wanchoo, J.)
493
"
Naunit Lal, for the appellants (in C. As. Nos. 2121-2117 of
B
c
D
E
F
G
ff
19()6).
H. R. Gokhale, Hareshwar Goswami, K. Rajendra Chaudhury
and K. R. Chaudhuri for respondent No. 1 (in C. As. Nos. 21142117 of 1966).
Vineet Kumar, for respondent No. 3 (in C. As. Nos. 2114 to
2120 of 1966).
I. M. Oberoi, S. K. Mehta and K. L. Mehta, for respondent
No. 1 (in C. A. No. 2118 of 1966).
Bishan Narain, Bhuvanesh Kumari, 0. C. Mathur, for respondent No. l (in C. As. Nos. 2119 and 2120 of 1966).
The Judgment of the Court was delivered by
Wanchoo, J. These are twenty-one appeals on certificates
granted by the High Court of Assam and Nagaland and will be
dealt with together as they raise common questions. Facts necessary for present purposes may be briefly narrated. On September
26, 1964, the Governor of Assam issued a notification under
r. 126-AA of the Defence of India Rules, 1962 (hereinafter referred to as the Rules). By this notification be applied r. 126-AA to
a large number of employments as he was of opinion that the employments notified were essential "for securing the public safety
and for maintaining supplies and services necessary to the life of
community".
On the same day another notification was issued
under sub-r. ( 4) of r. 126-AA. By this notification, the Governor ordered payment of ad hoc cost of living allowance of Rs. 10 /-
per mensem to all workers drawing "pay upto Rs. 400/- per mensem engaged in the employments notified for purposes of sub-r.
(1) of r. 126-AA. Another notification was also issued on November 4, 1964 under sub-r. (4) by which the Governor ordered
payment of ad hoc cost of living allowance of 34.46. paisas per
da~ to all persons ~gaged on daily wage basis in the employments
wfh1chlh26adAAbeen notified on September 26, 1964 for the purpose
o r.
-
(1 ).
per'fhe· v~fity of thes~ three notifications was challenged by writ
i 1ons
ore the High Court by the respondent
.
grounds. It was first urged that r 126-AA w
s ofn van~us
delegation and was th
f
1 · .
as a case o excessive
that r. 126-AA was e{;y~r:d u t~a vires. The second contention was
the Defence of Ind· A (N
e powers conferred under s 3 of
account.
Thirdly, if t ::s u~e~ 1 d:f t I ~62~ and w~s b~d o~ that
r. 126-AA (1) was bad as condif a
e
st notification under
the power conferred by that sub-:~f: h~~e°t.!~ the exerci~e of
much as (a) the State Gove
no~ ·"""n fulfilled masnecessary before. issuing the ii~t~~~a~i~~ n~~Jog)1ed the opinion
man could have formed the opinion tha't . t'fi
,no reason~ble
no 1 cation of various
494
SUPRl!Ml! COURT Rl!PORTS
[1967]3 s.c.R.
employments mentioned in the schedule was necessary for securing
the public safety and for maintaining supplies and services necessary to the life of community. Fourthly, it was· contended that
the exercise of the power under sub:r. (1) was colourable inasmuch
as it was not exercised for the purpose mentioned in the sub-rule
but for extraneous purposes on the ground that the notification did
not show how it was necessary to notify the employments indicated therein for the purposes mentioqed therein, the more so as
two purposes had been mentioned in the notification and it did not
appear which purpose applied to which employment.
Lastly, it"
was urged that the notification under sub-r (1) was ma/a fide. It
was on these grouods that the notification under sub-r. (1) was
attacked.
0
The respondents also attacked the two notifications issued under
sub-r. (4) on three grounds. It was first urged that the notifications fixing ad hoc cost 0of living allowance were invalid as it was
not stated therein that the regulation of wages proposed under the
notifications had any connection with securing public safety .and
maintaining supplies and services necessary. to the life of cooununity.
Nor was it shown that the two objects of r. 126-AA (1)
mentioned in the notification could be achieved by a general notification of the type issued under sub-r. ( 4). · Secondly, it was urged
that wages could be regulated underthe Minimum Wages Act (No.
II of 1948), and in some cases steps had been taken to do so.
Therefore, it was not open to take recourse to r. 126-AA (4) to
achieve the same purpose, as the effect of the notification under
sub-r. (4)_was to deprive the respondents of the right to place materials before the committee empowered to fix minimum wages and
it was thus a colourable exercise of the power conferred by the
sub-rule. , Thirdly, it was urged that these notifications were also
ma/a fide.
The High Court held that r. 126-AA was not a case of excessive delegation of power. It also held that the rule was within the
power conferred under s. 3 of the Defence of India Act.
These
two conclusions of the High Court are not being challenged by
either party before us and need not be considered any further.
A
B
c
p
E
The High Court further held that the conditions precedent to
·G
the exercise of the power conferred by r. 126-AA had riot been
complied with and therefore the notification under sub-rule (1)
was bad. The High Court was of the view that the Governor did
not form such opinion as was necessarr before the issue of the
notification under sub-r. (1). Nor was 11 shown that the employments included in the impugned _not~~ation we_re essential . for. H
securing public safety and for ~amtammg s1;1pphes and services
necessary to the life of cornrnumty. ·The High Court also he!?
that the exercise of power under sub-rule ( l) was colourable as 1t
A
B
c
D
E
F
ASSAM v. KALA BHANDAR (Wanchoo, J,)
495
•
was not shown that the employments mentioned in the notification
under sub-r. (1) were essential for securing public safety and thus
one of .the purposes mentioned in the notification was non-existent.
As such it could not be predicated as to which of the two :purposes
mentioned in the notification led the State Government to issue the
notification aq.d in conse4uence the notification under sub-r. (1)
was invalid. Finally, the High Court held that the notification
under sub-r. ( 1) was mala fide in law, though there was nothing
to show that there were ma/a {ides in fact in the issue of the
notification; presumably, the High Court came to the conclm ion
that the notification was ma/a fide in law on the basis of itb view
on the other points indicated above.
As to the notifications under sub-r. ( 4) the High Court held
that they were invalid as it was neither stated in the notifications
nor was it shown how fixation of wages in the employments included in the notification under sub-r. (1) was necessary for the
purposes of securing public safety and for maintaining supplies
and services necessary to the life of community.
The High
Court also seems to have held that these notifications were bad
inasmuch as they replaced proceedings under the Minimum Wages
Act which had been taken in respect of some of the employments
included in the notification under sub-r. (1 ), though the decision
of the High Court on this point is not quite clear. Finally, the
High Court held that the notifications under sub-r. (4) were also
ma/a fide. Here again there was no question of ma/a fide on
facts. The High Court seems to have held that the notifications
were ma/a fide in law, presumablv on the. view it took on other
points indicated above.
·
The result of these findings of the High Court was that the
High Court struck down the notification under sub-r. (1) and the
two notifications und.er sub-r. (4) of r. 126-AA. The State of
·Assam then applied for and obtained certificates from the High
Court to appeal to this Court, and that is how the matter has
come up before us.
We shall first consider the notification under sub-rule (1 )
However before we do so we should like to analyse the pr<ivisions
G
of r: 12~-AA. Sub-rule (1) thereof lays down what are essential
services m the ~ontext of the emergency which is the basis of the
Defence of India Act and the Rules. Under sub-rule (1) all em
ployments under the Central Government or the State Government
are essential services. In addition to these employments any employment or class of employment which the Central Government
or the State Government, being of opinion that such employment or
class ~~ eniployment is· es~ential for securing the defence of India
H
and CIVIi de!ence, the public safety, the maintenance of public order
or the efficient conduct of military operation, or for maintaining
496
8UPRBMB COURT REPORTS
(1967) 3 S.C.R.
supplies and services necessary to the life of the community, declares by notification to be essential service, becomes an employment within sub-rule ( 1) above. The explanation to sub-rule ( 1)
says that "employment" includes employment of any nature, and
whether paid or unpaid. Thus there are three classes of employments which are treated as essential services for purposes of sub-r.
(1), namely, (i) employments under the Central Government, (ii)
employments under the State Government, and (iii) any employment which is declared by notification under sub-r. (!) to be essenti~ for the purposes mentioned therein.
Then comes sub-rule (2) which gives power to the Central
Government or the State Government to direct by general or special order that any person or persons engaged in any employment
to which sub-rule (1) applies shall not depart out of such area or
areas as may be specified in such order.
An order under this
sub-rule has to be published in such manner as the Government
making the order considered best calculated to bring it to the notice
of the persons affected by the order.
It will be seen that sub-rule
(2) is consequential to sub-rule (1). It does not however apply of
its own force and the Central Government or the State Government
has to pass an order thereunder and the effect of the order is that
any person or persons engaged in any employment to which subrule (!) applies cannot leave the area or areas specified in the
order.
The object of sub-rule (2) clearly is that in emergency
persons employed in essential services do not run away with the
result that essential services are brought to a stand-still with consequent danger to community.
Then comes sub-rule (3). It applies to a person engaged in any
employment or class of employment and to an employer of any
person so engaged. So far as persons engaged are concerned, subrule (3) lays down that if any person (a) disobeys any lawful order
given to him in the course of such employment, (b) without reasonable excuse abandons any such employment or absents himself
from work, or (c) departs from any area specified in an order under
sub-rule (2) without the consent of the authority making that
order, he shall be deemed to have contravened this rule. As to
the employer, sub-rule (3) lays down that if any employer without
reasonable cause-(i) discontinues the employment of such person, or (ii) by closing an establishment in which such person is
engaged causes the discontinuance of his employment, he shall also
be deemed to have contravened this rule.
Except for the part
which depends upon the order under sub-rule (2), sub-rule (3)
comes into force by its own terms and prohibits certain thinqs in
the cases both of employer and eipployee in the essential ~ervic~s
mentioned in or notified under sub-r. (1). Thus sub-r. (3) 1s agam
consequential to sub-r. (!).
A
B
c
D
E
F
G
H
A
ASSAM v. KALA BHANDAR (Wanchoo, J.)
497
Then we turn to sub-rule (4) with which we are particularly
concerned. It is in these terms :-
B
"The Central Government or the State Government
may by order regulate the wages and other conditions
of service of persons or of any class of persons engaged
in any employment or class of employment to which this
rule applies."
c
D
E
It is again consequential to sub-rule (1) and the obvious object
of sub-rule (4)· is to see that essential services are maintained during an emergency and if it is necessary to regulate wages and
other conditions of service in that behalf that can be done by an
order by the Central Government or the State Government.
It
also appears that as sub-r. (3) prohibits employers and employees
from doing certain things, sub-r. (4) has been enacted to see that
there is a contented labour force during an emergency so that essential services as specified in sub-rule (1) or declared by a notification
thereunder are maintained.
Then follows sub-rule (5) which lays down punishment for
contravention of any of the provisions contained in r. 126-AA.
This analysis of r. 126-AA shows that it is a provision for
maintenance of essential services during an emergency, and it is
with that object that various powers are conferred on the Central
Government or the State Government including the power of re·
gulating wages and other conditions of service of persons engaged
in essential services indicated in sub-r. (I) or declared to be such
thereunder.
It is with this background of emergency that we
have to construe the provisions contained in sub-r. (1) and also
sub-r. (4) with which we are particularly concerned in the present
appeals.
F
Turning first to sub-rule (1), we have already indicated that
mis sub-rule by its own force declares all employments under
the Central Government or the State Government to be essential
services for its purposes.
Besides these two classes of employments, the Central Government or the State Government has been
given the power to declare other employments also to be essen
G
tial for the purpose of sub-rule (1) and to be covered thereby
This the Central Government or the State Government can do by
notification, if it is of opinion that such employment or class of
employments is essential for securing any of the purposes mentioned
in the sub-rule. It was under this power that the Governor of
Assam issued the notification dated September 26, 1964 under
H
sub-rule(!). The notification refers to a large number of employments and states that the Governor of Assam was of opinion that
0e employments spe.cifi~d. therein ~ere essential for securing pubhc safety and for mamtmnmg supplies and services necessary to the
L7Sup Cl'67-2
498
SUPRl!Mll COURT REPORTS
[l967J 3 S.C.R.
life of the community.
The notification has been issued under
the authentication of the Joint Secretary to the Government of
Assam, Labour Department. As it stands the notification is clearly
in compliance with the provisions contained in sub-r. (1) of r.
126-AA.
It is true that the notification has included a large
number of employments in it; but we do not see why one notification may not be issued with respect to any number of employments, though there can be no objection to the Government issuini:
one notification with respect to one employment only. The mere
fact that a notification includes within it a large number of employ
ments is no ground for holding, as the High Court seems to have
held, that the Governor did not apply his mind to the conditions
precedent to the issue of the notification.
Nor do we think that
the fact that the notification in question gave two purposes for it~
issue, namely, for securing public safety and for maintaining
supplies and services necessary to the life of the community shows
thatthe Governor did not apply his mind to the conditions precedent
to the issue of the notification.
Further when the Governor says
in the notification that the employments included therein were essential for securing the public safety and for maintaining supplies and
services necessary to the life of the community, he obviously holds
the opinion that these employments were essential for both purposes.
It was not therefore necessary for the Governor to specify which of
the employments were essential for the purpose of maintaining
supplies and services necessary to the life of the community and
which were essential for the purpose of securing public safety. The
notification, as it reads, indicates that in the ppinion of the Governor
these employments were essential for both purposes.
We do not
think therefore that the High Court was right in holding that as the
notification does not show which employment was essential for
which purpose, the Governor had not applied his mind and the
notification was therefore colourable and ma/a fide in law.
We may also refer to a ground which was urged in the High
Court, namely, that the notification was issued for the purposes of
"defence" also as stated in the counter-affidavit of the appellant,
though the notification itself did not mention "defence" at all. The
High Court thus thought that defence had been introduced in
the counter-affidavit as one of the grounds for making the declaration while there. was no mention of it in the notification itself, and
that also showed that t~re was no application of mind by the
Governor to the conditions precedent to the issue of the notification under sub-r. (1)
It appears that in some of the writ petitions "defence" was introduced by the petitioners as a ground for
the issue of the notification of sub-r. (1 ); so in the reply of the
State the same ground was mechanically repeated in the counteraffidavit without carefully lookin~ into the notification which had
been issued under sub-r. (1). It is because of this mechanical
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introduction of defence by the State in the counter-affidavit that
the High Court has held that it showed that the authority ·had
equated publk safety with defence and that the Government misconceived its powers and had no clear conception of the scope -and
ambit thereof. There is no doubt that the word "defence" came
in the counter-affidavit mechanically in reply to the introduction
of the word "defence" in many of the writ petitions. What the
court has to see is whether the conditions precedent were complied with at the time of the issue of the notification. It is unfortunate that in the counter-affidavit the word "defence" was introduced mechanically in reply to what was said in the writ petitions.
But that in our opinion should not have led the High Coul't to the
conclusion at which it has arrived, namely, that the Government
misconceived its powers and had no clear conception of the scope
and ambit thereof. In the circumstances we are inclined to attach
no importance to the introduction of the word "defence" in the
counter-affidavit filed on behalf of the State as it seems that that
word can1e in mechanically in reply to the introduction of the
word "defence" in some of the writ petitions.
It is clear that a notification under sub-r. (1) is conditioned on
the subjective satisfaction of the Central Government or the State
Government as to the various purposes mentioned in sub-r. (1).
The High Court was also conscious of the fact that this subjective
opinion was generally speaking not justiciable and it was not open
to a court to see if the opinion of the authority was justified by
objective tests.
The High Court was also conscious of the fact
that it was not open to the court to examine the adequacy of the
material on which the opinion rested.
Further the High Court
also held that the reasonableness of the opinion could not be
examined by the court. This statement of the law by the High
Court is well-settled and was accepted by the High Court. The
High Court further held that the validity of an order might be
challenged on the ground of mala fide and this again is wellsettled. The High Court further stated that a court could examine
whether the opinion was formed at all before the issue of the
notification. To this again, there can be no exception. Finally,
the High Court held that it was open to the court to see whether
the opinion was relevant and germane to the circumstances which
fell to be c.onsidered u~der the rule and whether they were such as
could possibly and rationally support the conclusion drawn by the
authority.
. Having thus stated the law correctly, the High Court considered whether it could be said in this case that the conditions
precedent had been satisfied before the issue of the notification
un~er sub-r. _(!) and came to the conclusion that they were not
satisfied, mamly because . two purposes were mentioned as the
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fl 9671 3 S.C.R.
basis of the notification and a large number of employments were
included in one notification, as already pointed out by us above.
We are of opinion that both these grounds for holding that the
conditions precedent to the issue of the notification under sulrr.
(1) have not been fulfilled cannot be sustained. As the notification
reads,
it shows that the employments mentioned therein were
essential for both purposes and this must be held to be the opinion
of. the Governor. That opinion cannot in our view be challenged
in court unless it is shown to be ma/a fide or it is shown that no
reasonable man can come to that conclusion in the context of the
employments specified in the notification. We cannot agree with
the High Court that simply because a large number of employments
were mentioned in one notification that can by itself show that
the Governor had not applied his mind. Nor can we agree with
the High Court that because two purposes were mentioned as
the basis of the notification and as there was nothing to show
which employment referred to which purpose, there is no formation of opinion. As we read the notification it must be held that
the Governor's opinion was formed with respect to the employments specified in the notification on the basis of both the purposes
mentioned in the notification. The only thing that the High Court
could see was whether considering the nature of the employments
it was impossible for any reasonable man to come to the opinion
that those employments were essential for securing public safety
and for maintaining supplies and services necessary to the life of
the community, and this has to be judged in the context of an
emergency. It seems to us that where certain employments are
essential for the maintenance of supplies and services necessary to
the life of the community the Governor may very well come to the
conclusion that those employments are also necessary for securing public safety,. for if supplies and services necessary to the life
of community are not maintained, there may be danger to public
safety.
In these circumstances we cannot agree with the High
Court that .the two purposes mentioned in the notification have
no nexus with the employments specified therein, except in one
case. We cannot also agree with the High Court that no reasonable man could come to the conclusion that the employmeng
mentioned in the notification were essential for the two purposes
which were the basis of the notification except again in the case
of one employment.
We have looked through all the employments which are included in the notification and it is enough to
say that except in one case it cannot be said that no reasonable
man could come to the conclusion that those employments were
essential for securing public safety and for maintaining supplies
and services necessary to the life 0f the community.
The only exception we find is veneer mills.
Veneerinr,. we
ur:derstand, is a process by which thin flat plates or slips of fine
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wood or other suitable material are applied to other inferior
wood in cabinet work or similar other furniture. In the Concise
Oxford Dictionary, the word "veneer" means cover (wood, furniture etc.) with thin coating of finer wood, and that is the meaning which must be given to veneer mills as entered at No. S of
the notification for th11t entry is "employment in plywood 11nd
veneer mills". Veneering, we understand, is done for the purpose
of beautifying furniture etc.
We fail to see how veneer mills
which carry on this process of laying finer wood on inferior wood
for purposes of beautifying furniture etc. can be said by any
reasonable man to be essential for the maintenance of supplies
and services necessary tci the life of 1 the community and for
securing public safety. It is open to us to strike down the notification under sub-r. (1) with respect to veneer mills alone, for
the present notification including a large number of employments
can be read to amount to so many single notifications, relating to
each employment, rolled into one.
Therefore, as we see the
aotification under sub-r. (1) we see no reason to hold that the
Governor had not applied his mind to the conditions precedent
before he issued the notification in question. We are also satisfied
except in the case of veneer mills that it cannot be said that no
reasonable man could have come to the conclusion that the
employments included in the notification were not essential for
securing public safety and for maintaining supplies and services
necessary to the life of the community. In this view of the matter
we cannot see how the notification under sub-r. (1) can be said
to be for any extraneous purpose unconnected with the purposes
mentioned in the sub-rule; nor is there any reason to hold that the
employments mel!tioned in the notification (except one) were not
essential for securing public safety in addition to maintenance of
supplies and services necessary to the life of the community. Nor
do we see any reason to hold that the notification under sub-rule
(1) was ma/a fide. We have already mentioned that there are no
ma/a fides in fact. and w_e d? not think there can be any question
of any ma/a fide m law m view of what we have said above. We
therefore uphold the !lotification under sub-rule (I) dated September 26, 1964 except m the case of veneer mills. We strike down
!he notification only with respect to the veneer mills mentioned at
1tem 5 of the employments included therein.
. We now come to the two notifications under sub-r. (4). Incidentally we may mention that though the second notification is
dated November 4, 1964, the letter written by the Department of
Labour, Government of Assam, to the Charduar Cotton Mills
says that th~ cos~ of living allowance for persons engaged on daily
wages. provided m the notification of November 4, 1964 should
be paid _from September 26, 1964. Now there is nothing in the
not1ficat1on of November 4, 1964 to show that it was retrospective,
502
SUPREME COURT REPORTS
[1967) 3 S.C.R.
and we cannot understand how the Department of Labour advised
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the Mill in question to pay cost of living allowance to persons
engaged on daily wages from September 26, 1964, which was the
date of the notification under sub-r. (1).
Nor do we think that
there is anything in sub-r. (4) which authorises the Government
io make an order thereunder with retrospective effect.
But apart from this, we have to consider whether the two
notifications under sub-r. ( 4) are valid or not. The High Court
struck· them down on the ground that there was nothing in the
two notifications to show that it was necessary to pay cost <if living
allowance which comes within the ambit of the words "regulation of wages" for purposes of securing public safety and maintaining supplies and services necessary to the life of the community and that those purposes would be achieved by the notification.
The High Court also seems to have struck down the notifications on the ground that action should have been taken under
he Minimum Wages Act and thus the power exercised under
mb-r. (4) of r. 126-AA was a colourable exercise of power. For
these two reasons, the -High Court also held that the notifications
were ma/a fide in law, though there was nothing to suggest that
they were in fact ma/a fide. We cannot agree with the High Court
that it was necessary to recite in the notifications under sub-r. (4)
that action was being taken thereunder for the purpose of securing
public safety and for maintaining supplies and services necessary
to the life of the community.
Nor do we think that sub-r. (4)
requires that notifications should show that the two purposes would
in fact be achieved by the provision made thereunder. Further
it is clear that the power under sub-r. (4) is not for fixation- of
minimum wages. It is power to regulate wages and this power is
analogous to the power of industrial tribunals a11d therefore the
fact that there is provision in the Minimum Wages Act for fixation
of mini'Inum wages is no ground for holding that the power exer_ cised by sub-r. (4) must be colourable. The two reasons given by
the High Court for striking down the two notifications and holding them ma/a fide do not ·appear to us to be correct. But this
in our opinion is not the end of the matter.
The real question is whether the power under sub-r. (4) is a
power which can be exercised merely on the subjective opinion of
Government or whether sub-r. (4) requires anything more.
The
notifications seem to proceed on· the view that powers exercised
thereunder are entirely within the subjective satisfaction of Government and it is that view which we must examine now. It is
true that this aspect of the matter was not put forward in clear
terms before the High Court, but it so clearly arises that we ~ave
permitted learned counsel for the respondents, when they raised
this aspect of the matter, to do so.
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We have already indicated that the power conferred by sub-r.
\4) is consequential to the issue of a notification under sub-r. (1),
in· cuse of employments other than those under the Central Government or the State Government.
Once the notification under
sub-r.