The Australian Constitution indeed has no provision v. The State of U.P

January, 1952, a committee was appointed to hold enquiries and advise the Chief Com missioner in regard to the fixation of minimum wages relating to the textile industry within the State. Ten members were nominated consisting of four representa tives of the employers, four of the employees and independent members, one of whom Shri Annigeri was to act as an expert member of the committee 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 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 the first and on the 27th of any other meeting except \Ind 1954 Edward Mills Co. Ltd. v. T!te Stale qf Ajmlr nd Anot!ter. Mttk!tetjea J. S.C.R. SUPREME COURT REPORTS 741 letter the Committee In requested that Shri Annigeri had ceased 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 If however that was not committee was extended. 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 Chief the Chairman of informed to be a Commissioner failing to the committee by reason of his member of attend three consecutive meetings. He had also desired the Chief Commissioner dated the that his 27th May, 1952, should be letter of treated as a the Chief Commis the circumstances resignation. in the sioner was this vacancy to fill up 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, following, another 1952, and on the 28th of August, notification was made appointing Shri Annigeri as a member of the committee. The term of the committee the 5th of was extended by a October, 1952. committee. was held on the 10th September, 1952, in which Shri Annigeri was not present. The only resolu tion passed was, that all relevant papers might be sent to Shri Annigeri as desired by him. the 14th of September, 1952, the Chairman himself took the papers to Nagpur where Shri Annigeri was staying and a draft final report was in consultation with the prepared by the Chairman the report at expert member and both of them signed Nagpur. The the other members on the 4th October, 1952, and on the 7th of issued fixing October, In the meantime a meeting of following, a notification was report was placed before further notification It appears time after - - • -. &/ward Mi/ls Co. Ltd. v. Stateef Aj,,,... and Anothtr. MuMer; feaJ. 742 SUPREME COURT REPORTS [1955] industry in the State of Ajmer, under minimum rates of wages textile 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. the employees this notification Feeling aggrieved by Judicial Commissioner of Ajmer on appellants in Appeal No. 138 of 1954 presented an application under article 226 of the Constitution before 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 Judicial Commissioner on the 16th of February, 1953. The applications were dismissed except that the Chief to have exceeded his legal Commissioner was held authority in giving retrospective effect to the notifica tion 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 strength of certificates granted by this Court on the the Judicial Commissioner, Ajmer. Mr. Chatterjee, appearing for under article 239 of the Constitution, 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 Chief Commissioner of Ajmer was not competent to function as the "appropriate Government" for purposes therefore of the Minimum Wages Act. All the steps 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 delega tion of legislative powers by the Legislature in favour of the "appropriate Government" as defined .. - • -- ·s.C.R. SUPREME COURT REPORTS 743 raised third and Act. The last contention is, that the Chief Commissioner had no authority to extend retros pectively the term of the Advisory Committee after it ·expired on the 16th of July, 1952. Mr. Seervai, who appeared in support of the other arguments on behalf of his . appeal, adopted all these client. He however some additional points impeaching the constitutional validity of the Minimum ·Wages Act itself on 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 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 three points men · will now proceed to consider tioned above which have been raised in support of appeals. in connection with the the ground 1954 Edward Mills Co. Llt/, v. State of Ajmer and Another • Mukherjea J, · in substance is that the the Minimum Wages Act So far as the first ground is concerned the argument ·of Mr. Chatterjee expression "appropriate Government" has been defined in section to meal), in 2(b) (ii) of relation to any scheduled employment, not .carried · 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 commence ment of the Constitution, under section 94(3) of ·Government of India Act, 1935, a Chief Commissioner's Province could the Governor . General acting to such extent, as he thought fit, through to be appointed by him in his . a Chief Commissioner the General section 3(8) of discretion ; and January, 'Clauses Act, as it stood before the 26th of 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 be administered 1954 Edward Mills Co. Ltd. v. State ef A.faitr and Another. Mukhtrjea ]. 744 SUPREME COURT REPORTS fl955]

#1935. 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 Adapta tion 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 Commis sioner's Province under section 94(1) of the Government· It has become a Part C State of India Act, 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 the function of the "appropriate Government" under the Minimum Wages Act would, in respect of any Chief Commissioner's the Chief Commissioner. There was no such delegation of autho-- rity however under article 239 of the Constitution after· the Constitution force. Mr. Chatterjee contends that in the absence of such delegation under· article 239 the Chief Commissioner of Ajmer cannot "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· the- held to be the "appropriate Government" within 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. Province, be exercised by regarded as The contention does not appear to us to be sound_ A complete reply to this argument is furnished, in our • ;., . , . • 1954 Edward Mills <Jo.. Ltd. "• State ef Ajmer and Another. Mukherjea j. - • -· - ,. ·~­• S.C.R. SUPREME COURT REPORTS 745 clauses (1) and (2) of opm1on, by the provisions of article 372 of the Constitution. Article 372 runs as follows: repeal by "372. (1) Notwithstanding 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 the commencement of this Constitution shall before therein until altered or repealed or continue in force amended by Legislature competent a competent authority. (2) For the purpose of bringing th._e provisions of 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 law, whether by way of repeal or amendment~ of such as may be necessary or expedient, and provide that the· law shall, as from such date as may be specified in the order, have adaptations any such adaptation or modifications so made, in any court of modification law." subject to shall not be questioned effect laws made the Constitution, but Thus clause (1) of the article provides for continu in force, of the existing laws notwithstanding the ance, repeal by the Constitution of the enactments mentioned in article 395 and clause (2) provides for their adapta tion 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 thereunder which were in existence immediately before the mencement 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 sec tion 94(3) of the ·Government of India Act could not be regarded as "a law in force" within the meaning of arti cle 372. A distinction 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 Co. Ltd. v. State qf Ajmu ant! Anotkr. Muklzerjea J. 746 SUPREME COURT REPORTS (1955] law", of "existing 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 that order must be a legislative to include an order, by an and not a mere executive order promulgated administrative authority, and in support of this conten learned counsel has relied on a number of cases tion the d.ecided by the Privy Council and the different High Courts in India. The first point does not impress us much and we do is· any material difference between not think that there law in force". Quite apart "an existing law" and "a 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 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 include not merely a legislative enact wide enough to also any regulation or order which has the ment but force of law. We agree with Mr. Chatterjee that an order m\!St be a legislative and not an executive order come within the definition of law. We before it can 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 execu tive 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 shall be administered. it shall be administered by the Governor-General acting through a Chief Com as he thinks fit. An order such extent missioner to 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 legis lative provision which defines the rights and powers of the Chief Commissioner in respect to that province. In comes within the purview of our opinion such order article 372 of the Constitution and being "a force" immediately before the commencement of Commissioner's It provides a Chief Province 1954 Edward Mills, Co. Ltd. v. State of Ajmer and Another. MukherjeaJ •. 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 the Constitutional provisions under in accord with 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 supple menting that Act, immediately before the appointed day, and such provision is re-enacted with or without modi fications 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 appropriate kind duly made by the appropriate autho rity 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 mention contention of Mr. Chatterjee therefore fails. above. The first the Legislature was 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 tion of fixing to provide minimum wages in certain employments only and 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 employ ments and it to the scheduled employ ments 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 is of opinion that minimum wages shall be fixed by giving notification a particular manner, respect is in - • 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 argu ed 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 laid down which could prescribed and no standard furnish an the administrative in making the selection. The matter is left authority to the discretion of the "appropriate Govern entirely ment" which can amend the schedule in any way likes and such delegation of power virtually amounts to a surrender by the Legislature of its essential legis lative function and cannot be held valid. intelligent guidance in a sense, authorises There is undoubtedly an element of delegation im plied in the provision of section 27 of the Act, for Legislature, 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 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 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 the very earliest times, and therefore, legislation from form of particularly in modern some specified conditional legislation, authority to determine the circumstances in which law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods which it shall be applied." times, has taken the leaving it to legislatures to project 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 the Governor-General (') 8 C. L. R. 626 at 637. then gave power in Council include, - J,..,. .. • I'-,. . • 1954 Edward Mills Co.Ltd. v. The State ef A}rrJe' and Another. Mukhtl;j,a J. S.C.R. SUPREME COURT REPORTS 749 contention was the prohibited proclamation, other goods also within list. The validity of the provision was challenged on the ground of its being an improper delegation of lative powers. This repelled this was not a case of delegation it was held that legislation of legislative power but conditional the Privy of the held valid by type which was Council in the case of Reg v. Burah (1). It can indeed be pointed out that in Burah's case what was left 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 the Act. The Legislature ,ed were also specified in ·could be said therefore to have applied its mind to law to particular ·question of the application of the places and it was left to the executive only to deter mine 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 specifi :goods the law shall be extended besides •call y mentioned this strictly comes within the description of what legislation" is not very material. called "conditional limits of The J. delegation. As was said by O'Connor permissible :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 It is a fundamental everything neces principle of constitutional law that the exercise of a power is included in the grant sary to ·of certainly strip itself of its essential functions and vest the same on an ·extraneous authority. The primary duty of law mak ing has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure. Mr. Chatterjee contends ·essential legislative function is to lay down a policy .and to make it a binding rule of conduct. This legis Jative policy, he says, is not discernible anywhere in the the power. A Legisla~ure cannot therein. Whether a provision the exercise of such power. question is, whether it exceeds the ( 1) 3 App. Cas. 889. - }/fa • • 1954 Edward Mills Co. Ltd. v. The Stal< of Ap and Another. Muk/rerjea J. 750 SUPREME COURT REPORTS [1955} to guide it aims at subsidiary this Act and consequently It is with an eye to these facts that the wages of labourers in a particular there is no. provisions of administrative standard or criterion authority in the exercise of the 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 statutory fixation of minimum wages with a view labour. The chance of exploitation of obviate 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 arrange ments for .effective regulation of wages or for other industry cau·ses were very low. list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it to lay down at once is the policy of the Legislature not 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 expe diency 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 administra It is to carry out effectively tion of a particular State. the purpo~e of that power has the "appropriate Government" to decide, with local conditions, whether it is desirable reference to a that minimum wages should be fixed in is not already particular included in the list. We do not think that in enacting section 27 the Legislature has in any way stripped itself to the administrative of its essential powers or assigned anything but an accessory or subordinate authority power which was deemed necessary purpose and second contention of Mr. Chatterjee cannot therefore succeed. the policy of the Act. The industry which this enactment to carry out trade or regard The tl1ird and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Com missioner by which he extended the term of the Advi sory Committee till the 20th of September, 1952. It is term of the committee, as originally argued that the • ... • - · - Edward Mills Co. Lid. v. Th.Stale of Ajmer and another Mukherjea J. S.C.R. SUPREME COURT REPORTS 751 section 30 of rules framed under committee when it arbitration proceeding after fixed, expired on the 16th of July, 1952, and on and from the 17th of July all the members of the committee therefore became functus officio. The Commissioner was not competent to give a fresh lease of life committee which was already dead. We do not think in this contention. Rule that there is much substance 3 of the the Act expressly lays down that the State Government may is constituted fix the term of the and may from time to time extend it as circumstances require. The State Government had therefore a right in such way as it to extend the term of the committee 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 exten sion of time in an award was filed and an awarJ made after the prescribed In our opinion this analogy is not period is a nullity. 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 submission of the report. Assuming that the order of the 21st August, 1952, could, not revive a committee which was already dead, that date and a new committee was constituted on it would be a even then the report submitted by 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 Govern to accept any of its recommenda ment is not bound tions. Consequently, procedural report which fixed character could not vitiate the minimum wages. these appeals can contentions raised succeed and both the appeals therefore should fail and stand dismissed with costs. In our opinion, neither of it could certainly be held irregularities of in support of the final Appeals dismissed. 10-88 S C India/59 -