Bombay High Court
Bidi Leaves And Tobacco Merchants' ... vs State Of Bombay on 23 September, 1958
Equivalent citations: (1959)61BOMLR890, (1959)IILLJ286BOM
JUDGMENT Mudholkar, J.
1. This order will also govern Special Civil Application No. 214 of 1958. In these petitions the petitioners challenge the notification issued by the Government of Bombay in Labour and Social Welfare Department, dated 11 June, 1958, under the Minimum Wages Act, 1948. That notification runs thus :
"No. MWA. 1557-J. In exercise of the powers conferred by Sub-section (2) of S. 5 read with Clause (b) of Sub-section (1) of that section of the Minimum Wages Act, 1948 (XI of 1948), and after consulting the Advisory Board and in supesession of the former Government of Madhya Pradesh Labour Department notification No. 564-451-XXIII, dated 23 February, 1956, the Government of Bombay hereby revise the minimum rates of wages in respect of the employment in any tobacco (including bidi-making) manufactory in the Vidharbha region of the State of Bombay as mentioned in the schedule hereto annexed and directed that this notification shall come into force with effect from 1 July 1958.
Schedule Subject to the other provisions of this schedule, the revised minimum rates of wages payable to employee per thousand bidis (when leaves are supplied by the employer) shall be as follows :
Area Revised rate in Rs. (i) Nagpur district ... 1.69 (ii) Bhandara district ... 1.62 (iii) Chanda, Akola, Buldana, Yeotmal, Amravati and Wardha districts ... 1.56
2. For all bidis in which 7 chataks or more of tobacco mixtures is used and for those bidis which are known as "hathakhun" bidis, there shall be an increase of 12 nP. per 1,000 bidis in the rates mentioned above in all the areas.
3. It shall be within the discretion of the employer to decide which are "chhat" bidis or bid bidis, up to 5 per cent of the bidis prepared by the employee. If the employer decides that any bidis are "chhat" or bad, the "chhat" or bad bidis up to 5 per cent shall be destroyed forthwith by the employee and whatever tobacco is recovered from them shall be retained by the employer. If, however, the employer wants to retain these "chhat" or bad bidis, he shall pay full wages for the same to the employee.
4. If "chhat" or bad bidis are more than 5 per cent, but less than 10 per cent, and if there is any dispute between the employer and the employee as to whether the "chhat" or bad bidis is done properly on not, equal number of representatives of the employer and the employee shall inspect (sic) the "chhat" is done properly or not. If there is any difference of opinion among the representatives of the two sides, the majority opinion shall prevail. If the opinion is equally divided and the employer wants to retain the "chhat" bidis, he shall pay wages for "chhat" bidis between 5 per cent and 10 per cent at half the rates fixed above. If the employer does not want to retain these bidis, the employee shall destroy them forthwith.
5. The employer shall nominate his representatives and the employee shall elect their representatives.
6. In the case of "chhat" above 10 per cent, the employee shall be entitled to full wages. It shall, however, be open to the employer to take suitable action against the employee if the "chhat" is more than 10 per cent for 6 continuous working days in calendar month.
7. The "chhat" shall be made once in a day only at any premises within a distance of not more than 2 miles from the premises where bidis are manufactured.
Explanation. - For the purposes of this schedule the expression "employer" includes his thekadar, contractor or agent as the case may be."
2. Petitioner 1 in Special Civil Application No. 205 of 1958 is an association of manufacturers of bidis in the Bhandara district. Petitioners 2 and 3 are proprietors of the concerns manufacturing bidis in Gondia. The petitioners in the other civil application are manufacturers of bidis in the City of Nagpur and in the Bhandara district. It is common ground that some of the manufacturers of bidis have factories in which the work of manufacturing bidis is carried on while some manufacturers distribute tobacco and tendu leaves to the workers living in villages who manufacture bidis and deliver them to the employer or their agents or to the contractors working on behalf of the employers. The aforesaid notification purports to revise the rates for payment to workers who prepare bidis which were originally fixed by the Government of Madhya Pradesh by the notification dated 11 January, 1951, and revised by that Government by the notification dated 23 February 1956.
3. It may be mentioned that in the two notifications issued by the Government of Madhya Pradesh different rates were fixed for the urban area and for the rural area. No such distinction has been made in the notification issued by the Government of Bombay. There is one more point of difference between the notifications issued by the Government of Madhya Pradesh and that issued by the Government of Bombay and that point is that the notification of the Bombay Government contains some provisions dealing with "chhat." Now, it is common ground that the practice of "chhat" is prevalent in the bidi industry and in particular in the Bhandara district. The impugned notification purports to lay down the extent of "chhat" permissible to an employer.
4. Sri Phadke, who appears for the petitioners in Special Civil Application No. 205 of 1958, impugned this notification on three grounds. Those grounds are as follows :-
(i) that the notification is ultra vires of the provisions of the Minimum Wages Act;
(ii) that the procedure prescribed by the Act has not been properly followed by the Government; and
(iii) that the rights of the bidi manufacturers under Art. 19(1)(g) of the Constitution have been infringed by the notification inasmuch as the State Government has absurd its powers to place restrictions on the fundamental rights of the bidi manufacturers to carry on their trade.
5. It will be convenient to take the second point first. Sri Phadke contended that the State Government omitted to follow the procedure laid down in Sub-section (2) of S. 5 of the Minimum Wages Act. Section 5 deals with the procedure for fixing and revision minimum wages. Under this provision the Government in fixing minimum rates of wages in respect of any scheduled employment or in revising minimum rates of wages can proceed in one of two ways; it may either appoint committees and sub-committees to hold enquiries and advise it in respect of such fixation or revision as the case may be, or it may publish its proposals by a notification in an official gazette for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of the notification, on which the proposals will be taken into consideration. In the instant case the State Government has chosen to follow the latter procedure, that is to say, it published certain proposals in the official gazette and took the proposals for consideration two months after the publication of the notification. Under the proviso to Sub- section (2) of S. 5 where the State Government chooses to follow the kind of procedure which was followed in this case, it has to consult the Advisory Board appointed under S. 7 of the Act. Sri Phadke's contention is that the Advisory Board for the Vidharbha area was appointed by the Government of Madhya Pradesh and that though the notification appointing the Advisory Board had not been superseded, the Government of Bombay instead of consulting that Advisory Board consulted the Advisory Board for the Bombay State and that there was thus non-compliance with the provisions of the proviso to Sub-section (2) of S. 5.
6. Sri Abhyankar, who appears for the State of Bombay, pointed out that by virtue of the notification dated 1 November, 1956, issued by the State Government of Bombay under S. 122 of the State Reorganization Act, 1956, the Advisory Board for the Bombay State became the advisory Board even for Vidharbha and the Advisory Board appointed by the Government of Madhya Pradesh ceased to function even for Vidharbha as from that date. Sri Phadke then accepted this position, but contended that this Advisory Board did not contain any representative of the bidi industry in Vidharbha and that, therefore, it cannot be said that there was proper compliance with the provisions of law. The Act nowhere says that the representative from any particular region should be appointed on the Advisory Board in order that the board should have jurisdiction with respect to that area. In the circumstances, therefore, Sri Phadke's argument that there was no proper compliance with the provisions of the proviso to Sub-section (2) of S. 5 of the Act cannot be accepted.
7. It may be mentioned that the Advisory Board before tendering its advice to the Government appointed a committee for making enquiries into the conditions of the bidi industry in Vidharbha. This committee actually toured in the whole of Vidharbha, interviewed a number of persons including employers and representatives, examined such persons as appeared before it, considered the memorandum submitted to it by the interests concerned and then submitted a report to the Advisory Board. That report was taken into consideration by the Advisory Board before it tendered its advice to the Government.
8. Sri Qazi, who appears for the petitioners in Special Civil Application No. 214 of 1958, contended that the Advisory Board had no power to appoint a committee and that it could not base its advice upon the report of that committee. An Advisory Board is a very large body and it is certainly not convenient that the whole board should hold an enquiry into a matter of this kind. It is surely open to it to appoint some of its members to conduct the enquiry and submit their report. After all the function of the Advisory Board is merely to advise and not to take a decision. That being the position, it is clearly open to the Advisory Board to devise its own procedure for obtaining information necessary for the purpose of discharging its duty of tendering advice to the Government. The argument of Sri Qazi cannot, therefore, be accepted.
9. Now, as regards the first point raised by Sri Phadke. His contention is that what the Government is authorized to do under the Minimum Wages Act is merely to fix the minimum rate of wages which is to be payable to a worker and that it is not competent to it to frame provisions like those contained in Cls. 3 to 7 and the explanation in the schedule to the notification, which deal with different matters. According to him, what the State Government has done is to legislate upon a matter which is not within its preview. According to Sri Abhyankar, the Special Government Pleader, this is a conditional legislation and what the Government has done is merely to fulfil the conditions for bringing into effect the legislation, which it is permitted to do under the Act. He also contends that the Government possesses an express power to prescribe matters which are governed by Cls. 3 to 7 and that even assuming that it has no express power under the Act it has an implied power to prescribe the matters which are to be found in Cls. 3 to 7. As regards express powers, reliance was placed by him on S. 12 of the Act which runs thus :
"Where in respect of any scheduled employment a notification under S. 5 or S. 10 is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorized within such time and subject to such conditions as may be prescribed."
10. Now, Sri Abhyankar placed reliance upon the word "authorized" occurring in this section and said that the deductions which are dealt with by the impinged clauses should be authorized under S. 12. It seems to me that the word "authorized" necessarily means authorized by some other provisions of law and that it does not contemplate authorization under S. 12 itself. This will be clear from the language of Sub-section (2) of S. 12 of the Act which refers to the provisions of the Payment of Wages Act. Section 7 of the Payment of Wages Act deals with deductions which could be made from wages. Where deductions are so made, they could be deemed to be authorized deductions and it is deductions of this kind which the legislature had in view when it used the word "authorized" in S. 12 of the Minimum Wages Act. Sri Abhyankar, however, contended that the word "authorized" will also cover deductions authorized by the notification in question. But the notification itself does not purport to authorize any deductions. On the other hand, what it does is to specify the mode for ascertaining the work which has to be paid for. Under the Minimum Wages Act power is given by S. 30(2)(d) to the Government to prescribe the time and conditions of payment of, and the deductions permissible form, wages. This has, of course, to be done by rules. The notification of the kind which we have here cannot be said to contain any rules made under this provision and indeed no reference is made to S. 30 in the aforesaid notification. The argument of Sri Abhyankar cannot, therefore, be accepted.
11. Sri Dhabe, who was permitted to intervene on behalf of the employees, relied upon the provisions of S. 3(3)(a)(ii) and said that since that provision gave Government a power to classify the work and fix the rates of wages, the Government cannot be said to have express power to make provisions of the kind we find in Cls. 3 to 7. This provision reads thus :
"The appropriate Government shall, in the manner hereinafter provided, -
(3) in fixing or revising minimum rates of wages under this section, -
(a) different minimum rates of wages may be fixed for -
(i) * * *
(ii) different classes of work in the same scheduled employment;."
12. According to Sri Dhabe, the Government has classified the work into "good" and "bad" and it had power to do so under this provision.
13. In the first place, that is not a classification which has been actually made by the Government. On the other hand, the effect of those clauses is to require an employer to pay for 90 per cent of the work tendered to him by an employee irrespective of the quality of the work. With respect to the remaining 10 per cent., the provisions are these : Five per cent of that work is required to be paid for at the full rate if that work is actually accepted by the employer. For the other five per cent the provision is that if after following a certain procedure the work is found to be below the requisite quality the employer is bound to pay for it at half the rate fixed by the Government if he does not accept it, but at the full rates if he does. Surely, these provisions cannot be regarded as classification of work according to quality for fixing wages for that work. In the circumstances, therefore, it is clear, as already stated, that the State Government has not made a classification of this kind in the notification. Apart from that, it is doubtful whether the Act contemplates classification of work as good and bad for the purpose of fixing the minimum wage. No other provisions of the the Act was referred to as conferring express power on the Government to make provisions of the kind to be found in Cls. 3 to 7.
14. What is therefore to be ascertained is whether the Government has implied powers to make provisions of this kind. Craies on State Law has stated at p. 239 of the 5th Edn. :-
"Grant of a right implies grant of the means necessary for its exercise. One of the first principles of law with regard to the effect of an enabling Act is that if the legislature enables something to be done, it gives power at the same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purpose in view, 'on the principle' as Parke, B., said in Clarence Ry. v. Great N. of England Ry. [13 M. & W. 706] 'that ubi aliquid conceditur, conceditur etiam id sine quo res ipsa non esse potest'."
15. In In re Corporation of Dudley [(1881) 8 Q.B.D. 86] Brett, L.J., said that.
"The general rule on this head of law is, that where the legislature gives power to a public body to do anything of a public character, the legislature means also to give to the public body all rights, without which the power would become wholly unavailable, although such a meaning cannot be implied in relation to circumstances arising accidentally only."
16. Maxwell on the Interpretation of Statutes, 10th Edn., has stated the legal position thus at p. 361 :-
"Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution."
17. Crawford on Statutory Construction at p. 267 has stated :
"One may find numerous situations where statutes have been extended by implication. Thus, a statutory grant of a power, privilege or property carries with it, by implication everything necessary to its enjoyment or exercise. So also the creation of a new duty or obligation or the prohibition of an act formerly lawful, carries with it, by implication, a corresponding remedy to assure its observance ..."
18. On the basis of these statements of law Sri Abhyankar argued that the State Government had power to make the necessary provisions for making the minimum wages fixed by it effective. Sri Abhyankar pointed out that a practice is prevailing in the bidi industry under which employers reject a large quantity of bidis rolled by the employees, and though they actually sell those bidis in the market, they do not pay any wages to the employees for preparing those bidis. It is to prevent the workers or employees losing remuneration for the labour put in by them that the Government has made provisions of the kind to be found in Cls. 3 to 7 of the notification. According to him, it will be meaningless to fix minimum wage and to lave it to the sweet will of the employers to reject as many bidis as they like, to utilize them by selling them in the market and to pay wages, even the minimum wages fixed by the Government, only for the work approved by them as up to the standard. Sri Phadke's argument is that if there is an evil of this kind there are other ways of remedying it and the Minimum Wages Act was not intended to provide a remedy for preventing a mischief of the kind alleged to exist by the State Government.
19. On the question of implied powers Sri Phadke referred to the following passage from Fenton v. Hampton [(1858) 117 R.R. 32, 41]. That is a decision in which their lordships have said :
"... After the fullest research which I have been able to bestow, I take the matter to stand thus : Whenever anything is authorized, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something else will be supplied by necessary intendment. But, if when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the doing of the something else or even going a step further, that it is only in some particular instances, as opposed to its general operation that the law fails in its intention, unless the enforcing power be supplied, then, in any such case, the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus."
20. He also referred to a decision in the Trolly, Draymen and Carters Union of Sydney and Suburbs v. Master Carries Association of N. S. W. [(1905) 2 C.L.R. 509, 523] where the above decision was followed by the High Court of Australia. In that case the question was whether the condition imposed by the Court of Arbitration, functioning under the Industrial Arbitration Act, that the employer should not be allowed to engage a servant without giving notice of his intention to do so was valid. Dealing with it the Chief Justice of the High Court of Australia said :
"Such a condition would involve, of course, a remarkable interference with the liberty of the employer, that he should to be allowed to engage a servant without giving notice of his intention to do so. For, whether the prescribed notice was public or private, there would be no difference in principles. In considering the question whether such a provision is to be implied in the Act, it is important to bear in mind that if it is the discretion of the Court is unlimited and cannot be controlled. Is it a necessary inference from what the legislature has said that it did intend to confer such a power ? I confess that I cannot see any foundation for the argument .... One condition has been laid down by the legislature in regard to the preference to unionists, that it may be ordered as between persons offering their labour at the same time. I am not aware of any principle upon which it can be held that the provisions authorizes the Court of Arbitration to give any direction to employers that they shall give notice to one set of persons or another before they proceed to exercise their common law right of engaging any person they see fit. Except so far as they are empowered to do so by the provisions of the Act, the Court cannot control the common law rights of the subject."
21. In the course of the judgment, the learned Chief Justice quoted the following passage from the decision of Lord Halsbury in Rossi v. Edinburgh Corporation [(1905) A.C. 21, 25, 26] :
"... I can only look at the statute itself and construe it, and when I construe the statute I find there is in the statute a plain prohibition with respect to certain things. The magistrates, of course, are not only empowered but bound to give effect to legislation which has been passed, but when it is argued that because they are given the power to restrict, within certain hours, the sale of ice-creams therefore they have implied power to do all that might be desirable or expedient with reference to the times and circumstances under which ice-creams shall be sold, it seems to me the argument entirely fails. What is sought to be done, whether directly by by-laws, or indirectly by the language of the licence that is issued, is something that can only be done by legislature."
22. He has also referred to the opinion of Lord Robertson in the same case which is as follows :
"... I can find no warrant in the statue for forcing the dealer to close his premises at the hours during which he is forbidden to sell ice-cream, and I know of no principle upon which the magistrates can be held entitled to eke out what they may consider a weak prohibition by imposing an additional one."
23. It will be seen from all these decisions that implied power has been negatived only in the following circumstances. In the first place, the liberties or interests of others should be affected, secondly, there should be an impossibility for the exercise of the power conferred by the legislature and, thirdly, that impossibility must be of a general kind ad not restricted to particular instances. It is no doubt true that in the instant case the liberty of contract of the petitioners is intended to be affected by the exercise of the implied power. But the Minimum Wages Act itself interferes with the existing contracts, at any rate, in the matter of fixation or rates of wages. The legislature has clearly declared its policy that whatever the contract between the parties may be as to the rates of wages payable to persons engaged in a scheduled industry, the State Government will have the power to alter those rates and thus interfere with the contract between the parties. Now, in order to make the exercise of this power effective it will have to be said that the State Government has also the right to fix the basis upon which the wages should be fixed. If such power could not be implied in favour of the State Government, it seems to me that the effective exercise of that power will be rendered impossible. Now, the State Government does say that in the Nagpur district, for instance, the revised rate for bidis would be Rs. 1 and 69 nP. per thousand bidis. The intention of the State Government to enable a bidi worker to get Rs. 1 and 69 nP. for 1,000 bidis rolled by him would be frustrated if the employer were to reject 500 bidis out of those 1,000 rolled by him on the ground that they are below standard and then to utilize those very bidis himself by selling them in the market. If the State Government could have no power to prescribe some conditions of the kind to be found in Cls. 3 to 7, it would not be able to make effective the rates of wages fixed by it. To my mind, here is a case where the exercise of the power granted by the statue could be rendered impossible not in individual cases but generally unless there was an implied power in the State Government to make ancillary provisions for fixing the basis on which the wages are fixed.
24. Sri Phadke, however, contended that an implied power to provide a basis on which the minimum wage should operate should be deemed to have been excluded by the legislature because the Act which deals with various matters therein exhaustively has not given any power to the State Government to provide for such a basis. Now, the very concept of wages necessarily includes the basis with relation to which the wages are to be fixed. As has been pointed out by Crawford on p. 266 of Statutory Construction :
"The implications and intendments arising from the language of a statue are as much a part of it as if they had been expressed."
25. Upon this principles, therefore, it must be held that the power for fixing a wage can also be laid down by the State Government while exercising its powers under S. 3 of the Minimum Wages Act.
26. Sri Phadke then referred to the provisions of Clause (a) of Sub-section (2) of S. 3 of the Act which deals with a minimum rate of wages for time work and pointed out that the legislature has set out in detail the wage periods which could be fixed and also empowered the Government to specify the manner of calculating the wages for different wage periods. According to him, if there were any implied power to provide for these matters, the legislature would not have provided for them specifically. It seems to me that that is not the proper way of looking at the provisions of the clause. What the clause in effect does is to limit the power of the State Government in the matter of fixing wage periods by laying that the minimum rate of wages may be fixed by the hour and not by any shorter period. It is, however, open to the State Government to fix a longer wage period such as "per day, per month or even a longer period." It is true that the section also says "where such rates are fixed by the day or by the month, the manner of calculating wages for a month or for a day, as the case may be, may be indicated." But it is possible that the legislature made those provisions by way of abundant caution. Now, had the legislature not made those provisions and had made provisions only for fixing the wage periods, there might have been room for construing the Act in such a way as to exclude the existence of the power to provide for the manner of calculating wages.
27. Then Sri Phadke argued that the particular power given or exercised must receive a strict construction when it invades contractual rights or imposes new obligations. As a general proposition perhaps no exception could be taken to this statement, but if a particular power conferred by a statute cannot be exercised without an implied power for doing certain other things, the principle stated by Sri Phadke cannot be applied. In other words, the principle stated by him cannot be invoked for stultifying the power conferred and the duty imposed by a statute.
28. Then Sri Phadke said that an inference of implied power must be drawn slowly in the case of Government. He had not stated why he principle of construction of statutes should be different in the case of Government from that in the case of any other authority or person. I am afraid I cannot accede at all to this proposition.
29. Then Sri Phadke said that when other statutes provide for a matter, implied power to do that thing cannot be imported by a statute which is silent about that matter. In other words, according to him, a statute cannot be so construed as to make the provisions operates as to invade the provisions of other Acts. Sri Phadke has not relied upon any authority in support of his proposition and I feel it difficult to accept it. The reason is that the same topic may be the subject of various enactments but the matters dealt with under that topic may be different in different Acts. Now, it cannot be disputed that the legislature has power to enact expressly on all matters which fall within its legislative competence. It will, therefore, follow that while construing the provisions of different laws made by the legislature, it will not only be open to the Court but it will be the duty of the Court to so construe those provisions as to effectuate the intention of the legislature in enacting these laws. Now, where the legislature has enacted a piece of conditional legislation, but has omitted to make express provisions in regard to certain matters and without implying such provisions the law cannot be brought into force by the authority upon whom the legislature has placed the duty to put the law into operation, it will have to be held that authority has the implied power to do everything to put the law into operation even though in doing so the authority may have to do something which is covered by the provisions of other statutes. I know of no principle - and none has been referred to by Sri Phadke - which precludes the Court form presuming in such cases in favour of the existence of an implied power. I will, however, examine the argument of Sri Phadke that the provisions of certain statutes have been invaded by the State Government by enacting Cls. 3 to 7 of the notification.
30. According to Sri Phadke the provisions of these clauses invade the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act, the Standing Orders Act (XX of 1946), Central Industrial Disputes Act, 1947, and S. 20(2) of the Minimum Wages Act itself. Sri Phadke says that the provisions of Cls. 3 to 7 really deal with a "change" in an industrial matter which could be effected after following the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act. Therefore, according to him, no power could be implied in the State Government to make those provisions. It is sufficient to say that the Central Provinces and Berar Industrial Disputes Settlement Act does not deal with matters which are comprised in the aforesaid clauses.
31. Then Sri Phadke says that the matter which is dealt with in these provisions could well be dealt with by framing a standing order under the Standing Orders Act, 1946. Now, the making of a standing order is not obligatory upon an industry or an industrial undertaking. Moreover, standing orders could well vary from one bidi factory to another.
32. Sri Phadke has not been able to show how the matters dealt with in Cls. 3 to 7 of the notification at all fall under the Industrial Disputes Act, 1947, and how the provisions of those clauses interfere with the operation of any of the provisions of the Industrial Disputes Act.
33. Finally as regards Sub-section (2) of S. 20 of the Minimum Wages Act. What S. 20 provided for is the machinery for enabling an employee for obtaining redress in respect of his claims. It does not confer any power upon the authorities specified in that section to deal with matters of a general nature such as those dealt with in the aforesaid clauses. Sri Phadke did not refer to any other enactment, the provisions of which, according to him, could be said to have been invaded by Cls. 3 to 7 of the notification in question and it is difficult to see how the provisions of the four Acts to which he has referred could be said to have been invaded by Cls. 3 to 7 of the notification.
34. Sri Phadke referred us to the definition of "wages" contained in S. 2(h) of the Minimum Wages Act, which runs thus :
"In this Act, unless there is anything repugnant in the subject or context, - ...
(h) 'Wages' means all remuneration, capable of being expressed in terms of money which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment ..."
and argued that the conception of wages itself involves the fulfilment of the terms of employment by the worker and one of such terms is to produce work to the satisfaction of the employer and that, therefore, there is no scope for laying down any conditions of the kind laid down by the State Government in the schedule which would relieve the employee of the necessity of fulfilling those requirements or which will take away form the employer the right to reject the work on the ground that it is not up to the standard. Now, it has to be borne in mind that what is referred to by Sri Phadke is merely a definition and in a sense it is descriptive of the term "wages." This definition cannot, in my opinion, be construed as limiting or taking away the implied power of the State Government to make provisions of the kind we find in the schedule. If Sri Phadke's argument were to be accepted then, as already stated, the purpose of the Act would fail with respect to one of the scheduled industries to which the Act relates. What is more important is to give effect tot he intention of the legislature and not so much to preserve the sanctity of contracts which, as is well known is being interfered with time and again by the legislature for promoting social justice.
35. The power to correlate the hours of work, the work-load and the basic wages can be exercised by the State Government while fixing minimum wages under S. 5 of the Minimum Wages Act appears to have been accepted by the Supreme Court in A. M. Allison v. B. L. Sen [1957 - I L.L.J. 472]. That decision has been understood by the Assam High Court to lay done the law that the State Government has such power. This would appear form the decision in H. T. Henson v. M. Sultan, Deputy Commissioner [1958 A.I.R. Assam 1]. In the notification with which their lordships of the Supreme Court had to deal, the State Government had fixed 12 annas per day as the basic wages for the male labourers working in the tea garden and 11 annas per day for the female labourers working there. It may be motioned that in the plantations in which the workers were employed the hours of work in the case of an adult were 9 per day subject to a maximum of 48 hours in a week. Under the contract it was provided that the male labourers were to get 8 annas per day for plucking 16 seers of green leaves and the female labourers were to get 6 annas per day plucking 12 seers of green leaves. This was the work-load or task in respect of which the basic wages of 8 annas and 6 annas respectively were paid to the male and female labourers. Now the Government by its notification raised its rate to 12 annas and 11 annas respectively but it also provided that the existing task and hours of work shall continue until further orders. That is to say, in place of the original contact whereunder a male labourer, for instance, was entitled to the wages of 8 annas per day for plucking 16 seers of green leaves and work for 9 hours and a female labourer to 6 annas per day for plucking 12 seers of green leaves and work for 9 hours a day, the Government notification entitled the labourers to get 12 annas and 11 annas respectively for doing the same amount of work and for working for the same length of time. Thus, according to the original contract each labourer was entitled to 6 pies per seer for the leaves plucked by him. Now, the managers of these tea estates continued to pay to the labourers at the same rate even after the notification and demanded from them an additional outturn for earning the enhanced wages. The validity of the clause in the Government notification prohibiting the managers from altering the existing task and hours of work was challenged by the managers. Their contention, however, was negatived by their lordships who observed in Para. 11 of their judgment :
"It is argued that the continuance of the existing work-load or task which was thus provided for had no relation to the basic wages which were fixed for the make and female labourers respectively but was only intended to prevent the employers from increasing the existing work-load or task with a view to make up for the increase in basic wages. This argument, however, does not take count of the fact that there was existing at the date of the notification a work-load or task which was the basis of the payments used to be made to the labourers, the basic wages paid to them being calculated at the rate of 6 pies per seer of tea leaves plucked by them. The labourers were thus being paid the basic wages of 8 annas for male labourers and 6 annas for female labourers for the work-load or task of plucking 16 seers and 12 seers of tea leaves respectively and the sole intention of the Government in issuing the notification was to increase these basic wages of 8 annas 6 to annas 12 annas and 11 annas respectively while maintaining the same basic work-load or task assigned to the male and female labourers. If the intention was not to correlate these basic wages to the basic work-load or task which already exists and if the same state of affairs was to continue, viz., that the labourers would continue to be paid the basic wages on the computation of 6 pies per seer of green leaves plucked by them, there was no sense whatever in increasing the basic wages from 8 annas to 12 annas for male labourers and from 6 to 11 annas for female labourers as was sought to be done by issuing the notification in question. The acceptance of the contention of the appellants would mean that no advantage whatever was sought to be conferred by the Government on the labourers engaged in plucking leaves in these tea estates which intention can scarcely be attributed to the Government. We are, therefore, of the opinion that what was fixed by the notification was not merely 'a minimum time rate' irrespective of the existing work-load or task which used to be performed by the labourers but was a minimum wage which, though fixed for time work, was necessarily correlated to the work-load or task then being performed by these labourers so that whatever extra work was done by the labourers in excess of he existing work-load or task of plucking 16 seers of tea leaves in the case of male labourers and 12 seers of tea leaves in the case of female labourers had to be paid for in accordance with practice then prevailing, whether it was based on agreement or ticca or custom, at the rate of 6 pies per seer."
36. Following this decision, the Assam High Court held in the case cited :
"In an earlier case in C.R. Nos. 147 and 148 of 1952, dated 7 July 1953, this Court observed that all the three items, namely, the basic wage, the existing task and the hours of work, had to be correlated in order to ascertain the minimum wage payable on the strength of the said Government notification."
37. It is true that in the instant case the Government instead of stating that the existing task will be left unaltered or untouched has made some other provisions. But it is clear that what the Government has done is merely to fix the basis for the minimum wage provided for it. In the Assam case it was thought necessary to provide only for not altering the existing task in order to achieve the purpose which the Government had in view. Here, some other provisions had to be made for achieving the same purpose. The power under which the Government acted in the Assam case is however the same as that which is claimed in the instant case, i.e., the implied power.
38. We would proceed to examine the provisions to which objections have been taken. In so far as Clause 1 is concerned, an objection is taken by Sri Qazi that the rates fixed by the Government did not take note of the cost of living index. He referred to the provisions of S. 4 and said that under this section the cost of living index number has to be borne in mind by the State Government while fixing the minimum rate of wages of a worker, and that here as the same rate of wages is fixed for persons working in urban areas as in rural areas, it is clear that the Government has not taken the index figure into consideration. He points out that after all the cost of living is higher in urban areas than in rural areas and asks how is it that the minimum wages could be the same for both the areas. A similar point was raised before a division Bench of this Court in Bhikusa v. Sangamner Bidi Kamgar Union [(1959) 61 Bom L.R. 764]. In that case it was pointed out that the index figure is only one of the matters to be borne in mind by the State Government in fixing the minimum wages and that the law does not require that the minimum wages in the urban areas where the index figure is probably higher than in rural areas, should be higher than in rural areas. I respectfully agree with this view. I may also point out that though certain commodities are more expensive in urban areas than they are in rural areas, it does not necessarily follow that the minimum expenditure for living in an urban area must always be higher than that in a rural area. It is well known that certain commodities, for instance, salt, sugar and tea are more expensive in a rural area than in the urban area, and commodities like foodgrains are more expensive in an urban area than in a rural area. Therefore, it would not be correct to say that where the same minimum wage is fixed for an urban area as that fixed for a rural area, the fixation was arrived at without any reference to the index figure.
39. It was faintly contended that the rates have increased suddenly to a very considerable extent and the burden which an industry cannot bear has been cast upon it. Whether this is so or not it is difficult to say. But it may be pointed out that even if that is so, it is not a matter which we are entitled to look into for the simple reason that power has been given to the Government and the Government alone to determine what the minimum wages should be and the exercise of that power cannot be properly questioned in any Court.
40. Then we come to Clause 2. Here a little higher rate is provided for "hathnakhun" bidis. It is said that there is no definition of "hathnakhun" bidis and, therefore, it may be difficult to give effect to this provision. In this connexion we may refer to Para. 8 of the return of respondent 2 which was not controverted by the petitioner.
41. Then it was said that there was no justification for fixing a higher rate for "hathnakhun" bidis. In the first place, as we have said it is not our province to determine what particular rate of the minimum wage should be fixed by the Government. Secondly, we may point out that the "hathnakhun" bidis require some additional skill and probably a little longer time to make.
42. Then as regards Clause 3, the contention was that it was not open to the State Government to order destruction of bidis which were rejected by the employers. What is really provided for in this clause is that if the employer rejects bidis up to 5 per cent., he should destroy them as bidis, that is to say, to destroy their character as bidis. It does not say that he should burn them or do anything of the kind. On the other hand, this provision clearly entitles an employer to recover tobacco contained in these bidis and retain it with him. I may also add that it does not prohibit him from retaining the tendu leaves in which the tobacco had been rolled, and using them in any way he liked. All that the provision requires is that the provision requires is that the rolled bidis should be unrolled and their character as bidis be destroyed. Thus what is directed to be destroyed is the unpaid work put in by the employees and not any property of the employer. The object of this provision is to prevent an employer from rejecting bidis even up to 5 per cent., and selling them as bidis in the market and thus deprive a worker of his wages for making those bidis. That clause also provides that if an employer retains those bidis as bidis, then he must pay full wages to the employee. It seems to me that the Government has clearly power to make a provision of this kind in order to ensure that a worker who has put in his labour gets paid for the labour.
43. Now Clause 4 at first sight appears to deal with matters which are outside the purview of the minimum wage fixation. However, if we examine that clause carefully, it will be seen that all the provisions therein are intended only for securing one result and that result is to effectuate the payment of the minimum wage. Sri Phadke contended that those provisions appear to deal with an industrial dispute and not merely with wage fixation. But, as already stated, though the intention is to settle a matter of difference between the workers and the employers, that matter has a bearing solely on the question of the fixation of minimum wages.
44. Clauses 5 and 6 are ancillary to Clause 4. Sri Phadke took exception in particular to the second part of Clause 6, which runs thus :
"It shall, however, be open to the employer to take suitable action against the employee if the chhat is more than 10 per cent for 6 continuous working days in a calendar month."
45. He said that by this clause his rights against the workers are limited and that, therefore, this interferes with the contract between him and the workers which is not warranted by the provisions of the Minimum Wages Act. As I look at this provision it only confers certain rights on the employer to proceed against the employees, but it does not in any way affect the employer's right either under the contract or under the standing orders for taking such action against employees as he likes for bad workmanship.
46. As regards Clause 7, it was urged by Mr. Phadke that the employer could not be restricted to make chhat only once in a day; nor could be required to make chhat in or near the village where the workers carry on their work. This provision is intended to protect workers who do not work in factories but at their houses. Now, it is well known that these workers are distributed in various villages. According to the practice of the trade, the agents of the employers (or their contractors as contended for by Sri Phadke) distribute leaves and tobacco to the workers in their villages and then take back bidis in exchange from them and while taking these bidis the agents or contractors, as the case may be, reject some bidis as being below standard. They, however, even take away those bidis with them and then present all those bidis to the employer in his factory. Here the employer or his servant makes second chhat and rejects some more bidis out of those accepted by the agent or the contractor. Now, this second chhat is invariably carried on behind the back of the employee. Usually, the second chhat is also said to be quite considerable and therefore, the result is that the employee does not receive any remuneration for a substantial quantity of work done by him. It is to prevent this that a clause of this kind had to be enacted. As already stated, this clause also has a bearing on the question of the fixation of minimum wages and is, therefore, within the competence of the State Government to make this clause.
47. Lastly, an objection was taken to the explanation and it was said that this explanation goes beyond the definition of "employer" given in the Act. Now "employer" is defined thus :
"'employer' means any person who employs whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and includes, ..."
48. I fail to see how the explanation goes beyond the definition. It merely says practically the same thing as is said in the definition though in somewhat different language. By merely giving this explanation it cannot be said that the State Government has done something which contravenes the express provisions of the Act. In the circumstances, therefore, I am unable to hold that the schedule is ultra vires of the State Government.
49. What remains to be considered is the last point urged by Sri Phadke and that was that Art. 19(1)(g) is infringed by the notification. Article 19(1)(g) of the Constitution undoubtedly recognizes the fundamental right of every citizen to carry on his trade; but I fail to see how that right is infringed by the making of a notification of the kind we have here. Under this notification, no restriction has been placed or prohibition created against an employer from carrying on his trade. All that the employers are required to do is to pay at certain minimum rates of wages those person who roll bidis for them. The article does not place any restriction on the power of the legislature to legislate on the matter and the notification, as already stated, does not transgress the provisions of the Act. I need not say anything further on the point because it was in fact not very seriously pressed in argument. The point which was seriously pressed was the one regarding the vires of the notification itself and with that I have already dealt quite fully.
50. In this view, therefore, I would dismiss both the petitions with costs.
Kotval, J.
51. These petitions under Arts. 226 and 227 of the Constitution raise questions of far-reaching importance to the bidi industry within the eight districts of the former State of Madhya Pradesh which for the sake of convenience I shall hereafter refer to as the "Vidharbha region."
52. The petitioners claim a writ of certiorari to quash the notification dated 11 June 1958, published in the Bombay Gazette Extraordinary, dated 14 June 1958, and a writ of mandamus to the Government, directing it not to give effect to that notification.
It is worthwhile reproducing the entire notification for convenience of reference. It runs as follows :-
"No. MWA. 1557-J. :- In exercise of the powers conferred by Sub-section (2) of S. 5 read Minimum Wages Act, 1948 (XI of 1948), and after consulting the Advisory Board and in supersession of the former Government of Madhya Pradesh Labour Department notification No. 564- 451-XXIII, dated 23 February, 1956, the Government of Bombay hereby revise the minimum rates of wages in respect of the employment in any tobacco (including bidi-making) manufactory in the Vidharbha region of the State of Bombay as mentioned in the schedule hereto annexed and directs that this notification shall come into force with effect from 1 July 1958.
Schedule Subject to the other provisions of this schedule, the revised minimum rates of wages payable to employees per thousand bidis (when leaves are supplied by the employer) shall be as follows :-
Area Revised rates in Rs. (i) Nagpur district ... 1.69 (ii) Bhandara district ... 1.62 (iii) Chanda, Akola, Buldana, Yeotmal, Amravati and Wardha districts ... 1.56
2. For all bidis in which 7 chataks or more of tobacco mixture is used and for those bidis which are known as 'hathnakhun,' bidis, there shall be an increase of 12 nP. per 1,000 bidis in the rates mentioned above in all the areas.
3. It shall be within the discretion of the employer to decide which are 'chhat' bidis or bad bidis, up to 5 per cent of the bidis prepared by the employee. If the employer decides that any bidis are 'chhat' or bad, the 'chhat' or bad bidis up to 5 per cent shall be destroyed forthwith by the employee and whatever tobacco is recovered from them shall be retained by the employer. It, however, the employer wants to retain these 'chhat' or bad bids, he shall pay full wages for the same to the employee.
4. If 'chhat' or bad bidis are more than 5 per cent, but less than 10 per cent, and if there is any dispute between the employer and the employee as to whether the 'chhat' or bad bidis is done properly or not, equal number of representatives of the employer and the employees shall inspect that the 'chhat' is done properly or not. If there is any difference of opinion among the representatives of the two sides, the majority opinion shall prevail. If the opinion is equally divided and the employer wants to retain the 'chhat' bidis, he shall pay wages for 'chhat' bidis between 5 per cent and 10 per cent, at half the rates fixed above. If the employer does not want to retain these bidis, the employee shall destroy them forthwith.
5. The employer shall nominate his representatives and the employees shall elect their representatives.
6. In the case of 'chhat' above 10 per cent, the employee shall be entitled to full wages. It shall, however, be open to the employer to take suitable action against the employee if the 'chhat' is more than 10 per cent for six continuous working days in a calendar month.
7. The 'chhat' shall be made once a day only at any premises within a distance of not more than 2 miles from the premises where bidis are manufactured.
Explanation. - For the purpose of this schedule the expression 'employer' includes his thekedar, contractor or agent as the case may be."
53. Prior to the reorganization of States there were other notifications also issued under the provisions of the Minimum Wages Act (XI of 1958). These notifications were No. III-132-XXIII dated 11 January, 1951, and No. 564-451-XXIII, dated 23 February, 1956. These notifications were superseded by the impugned notification.
54. It is to be noticed that the previous notifications exclusively concerned themselves with a fixation of rates of wages per thousand bidis. It is not in dispute between the parties that the standard size of bidis contained six chataks of tobacco per thousand bidis and that the earlier notifications fixed the rates with reference to that standard. The notification of 1956 provided for additional payment in respect of bidis in which seven chataks or more of tobacco was used. It was also agreed that the same standard has been taken as the basis for the fixation of minimum rates of wages in the present notification.
55. It may be noted, however, that while Cls. 1 and 2 of the schedule to the present notification fix the minimum rates of wages, Cls. 3 to 7 make elaborate provisions for several other matters which were not dealt with in the previous notifications and which constitute the real bone of contention in these petitions.
56. The attack was primarily directed against Cls. 3 to 7 of the schedule. It was also incidentally urged that the opening words of Clause 1 makes Cls. 1 and 3 "subject to the other provisions of this schedule," and, therefore, Cls. 1 and 2 cannot be extricated from Cls. 3 to 7; and if Cls. 3 to 7 are bad, then the whole notification must fail because it is not possible to disentangle the two parts of the notification. This was the only manner in which it was stated that Cls. 1 and 2 ought to be declared bad.
57. It will be seen that Cls. 3 to 7 use the word "chhat" and makes elaborate provisions for "chhat." The word "chhat," it was explained, was a convenient substantive used in this particular industry and is derived from the Hindi word ("chhatna" in Hindi) which means "to weed out or to pick out and separate." It may conveniently be translated in English as the right to reject.
58. Now, curiously enough, the practice of chhat has not been explained in the petitioner, but the respondents in their returns have adverted to it and the affidavit of respondent 2 fully explains it in Paras. 3, 4 and 5. There it is explained that for about the last thirty years the system of paying wages to workers employed in the manufacture of bidis is on the basis of piece rates. It was explained that in actual practice, however, the worker was not paid for all the bidis which he prepared. The bidis are subject to scrutiny on two occasions. After bidis are prepared by the workers, they are submitted to a scrutiny of a thekedar in bundles of 25 each. The thekedar rejects bundles which suffer from defect of workmanship and are not of he required standard. Then the thekedar takes the accepted bids to the employer's factory where the employer scrutinizes the bidis a second time with reference to their quality and workmanship. It was alleged that when the second chhat (rejection) takes place, it is done in the absence of the worker. It was also alleged that the bidis rejected by the employer and not paid for are not returned to the worker but the employer sells them and makes a profit.
59. It appears from these returns that the bidi industry is mostly carried on as a cottage industry. There are tow systems of work. Firstly, the manufacturer has established factories at important places in the areas where the industry is mainly concentrated, viz., Gondia Tahsil and Bhandara district. In these factories workers come and are given tobacco and tendu leaves and thread. They make the bidis and deliver them back each day before leaving the factory. In the case of these factories, the chhat (rejection) is admittedly made only once.
60. But this is a minor part of the industry. By far the larger part is carried on on a different basis. The employer has established convenient centres in or near the villages from where tobacco, tendu leaves and string are doled out to workers who take these home and manufacture as bidis. Thekedars are appointed to screen the bidis and do the first chhat and then bring the bidis accepted by them for the manufacturer's approval. Thus in this case these is a double chhat.
61. The practice of chhat as pleaded by the respondents has been admitted on behalf of the employers. At any rate they have not denied the same or the terms thereof and, therefore, the above statements of the respondents must be accepted. It was also, admitted that in the case of manufacture at the employee's home (otherwise conveniently referred to as the "garkhatha" in Hindi) there is a double chhat and in respect of bidis manufactured at the factory there is only one chhat. It is clear form those pleadings that these were the terms and conditions on which the work used to be done and constitute the implied contract between the employer and the employees. The arguments of both dies proceeded on that basis.
62. The other allegations made against the employers regarding exploitation of employees were strongly controverted in the arguments. It was stated on behalf of the employers that they have had to resort to this system in order to provide employment not for any individual worker but for his whole family including his children. On member of the family takes the tobacco, tendu leaves and thread home and gets the bidis manufactured by his wife and children and is thus enabled to utilize the labour of his whole family which otherwise would not be able to earn anything. It was stated that most of these workers were really agriculturists and that they supplemented their meagre incomes from agriculture by this useful cottage industry. In support of this Mr. Phadke also invited our attention to the fact that at one time so much of agricultural labour took to the manufacture of bidis that agriculture declined and the then Government of Madhya Pradesh had actually to intervene by getting legislature passed, prohibiting the migration of agricultural labour to the bidi industry. That was the Central Provinces and Berar Regulation of Manufacture of Bidis (Agriculture Purposes) Act (LXIV of 1948), which was challenged before the Supreme Court of India in Chintamanrao v. State of M.P. and declared ultra vires of Art. 19(1)(g) of the Constitution by that Court.
63. It was urged on behalf of the petitioners that in such a system the standard of work is necessarily very low and leads to such damages and waste of materials supplied by the employers because if children and unskilled labour, male and female, work under conditions where there is absolutely no supervision, the work would necessarily not be of a high standard. Therefore, it is essential that the employer should scrutinize with care the bidis manufactured because they have to sell their goods in a highly competitive market. What is more, it was stated that most of these "gharkhata" workers dishonestly pilfer the tobacco, which is the most valuable ingredient in a bidi, put in less tobacco in the bidis offered to the employer and out of the pilferred tobacco privately manufacture bidis and sell them, thus making illegal gain for themselves. The again is absolutely without restriction or supervision it was urged.
64. That these were the conditions under which the industry was functioning and gave rise to its own problems and disputes is clear from the documents placed on record on behalf of the Government itself, etc., from annexure A which is a report made by the Assistant Commissioner of Labour (Administration), Bombay (of which date is not clear) and annexure D, which is the report of the Committee appointed under S. 5 by the Advisory Board from amongst their members for enquiry into the revision of minimum wages. The rival points of view are neatly set forth there in under the heads "employer's and employees' points of view."
65. With the merits of these respective points of view we are not here concerned, but I have stated them at some length in order to show the conditions under which the impugned notification came into being and the peculiar problems which it intended and purported to solve.
66. There is no doubt that it was in order to check or control the employer's right of chhat and compel him to do the chhat only at a factory, that the provisions of Cls. 3 to 7 of the schedule to the impugned notification were made. This is clear from Para. 7 of the affidavit on behalf of respondent 2 wherein, after reciting details of the system and its evils from the employees' point of view, it was stated :
"It was in order to avoid this arbitrary and capricious exercise of the powers of employer that the State Government have made provisions in Cls. 3, 4, 5, 6 and 7 of the impinged notification."
67. To the same effect is the return on behalf of respondent 1, State of Bombay. Paragraph 3(a) of their return is as follows :
"There have been constant disputes among bidi employers and the bidi workers regarding the payment of minimum wages fixed in the Vidharbha region. It is complained that the employers do not pay full value of wages for the bidis prepared by workers. A certain percentage of bidis is rejected on the ground that it is of a subnormal standard of quality. Constant disputes arise regarding the reasonable percentage of such rejection and the mode, time and place where this selection or rejection should take place. The State Government was, therefore, required to institute an enquiry into these complaints to find out whether it was necessary to review the minimum wages payable under the Act and the mode of determining such wages."
68. A similar further statement is to be found in Para. 4(e) :
"... it is denied that Government has no power to make provision to fix wages according to the work done in such employments. It is denied that the Government has no power to make provision for deciding the extent to which the 'chhat' (reduction) will be permissible or to give directions as to the action to be taken by the employers and the employees in case of disputes regarding the quality of bidis liable to such reduction or rejection. It is submitted that the Government is empowered and is duly bound to fix effective minimum rates of wages in any specified industry. In the bidi factory in Vidharbha region and especially in Bhandara district and factories in Gondia tahsil, there is a recognized practice of making payments on the basis of bidis accepted by employer as coming up to a certain standard of skill. The employers have insisted on their right in principle of rejecting the subnormal or substandard bidis prepared by the employees."
69. In Para. 6(g) it was stated :
"It is submitted that the Cls. (3) to (7) of the schedule makes provision for incidental and supplementary matters connected with the fixation of minimum rates of wages. The minimum rates of wages liable to be fixed under the Act ought to be effective rates of wages. The rate of wages which are paid according to work cannot be effective unless adequate and sufficient provision is made for determining the quantum of outturn liable to rejection on the basis of which the payment is made. Fixation of rates of minimum wages payable for substandard bidis or for their rejection is thus an ancillary part of scheme for fixation or revision of the minimum rates of wages in case of bidi manufacturers."
70. And in Para. 6(h) :
"It is further submitted that it is fully within the competence of the authority entitled to fix rates of wages under the Minimum Wages Act, to make adequate provisions for resolution of disputes arising in the mode of calculation of such minimum wages for work done."
71. It will thus be clear that the notification was issued and is sought to be justified expressly on the ground that the employer's right of chhat had to be checked or controlled and that disputes between employers and employees had to be settled in regard to the right of chhat.
72. I have reproduced these pleadings at some length because one of the points argued was that these powers are absolutely essential in order to make the revision of the rates of minimum wages effective and that, therefore, they must be deemed to be conferred on the State Government by implication. The only point I may here stress is that it was not alleged by Government that the previous notifications operating till then had become wholly ineffective or nugatory because they did not contain provisions analogous to Cls. 3 to 7 of the present notification. On the contrary, what is alleged is that several disputes continued to arise because of those notifications, which can only imply that they were partially effective. As I shall show hereafter, the whole foundation of the rule as to implied powers is the absolute necessity or essentiality for implying them.
73. The first two clauses of the schedule to the notification lay down the revised minimum rates of wages for two classes of bids. The rates are prescribed districtwise. In the notification which was operative immediately prior to the present notification the rates were fixed in greater detail, and, if I may say so, townwise or according to centres of business. The standard employed was also the same, viz. thousand bidis containing 6 chhataks of tobacco. The difference in rates between better qualities of bidis containing 7 chhataks per thousand was also the same, viz., now 12 nP. or (what is its equivalent) 2 annas.
74. These clauses are, in my opinion, a clear and legitimate exercise of the power to fix or revise minimum wages under the Act. Indeed this much was virtually conceded on behalf of the petitioners. The only argument on which it was claimed that these clauses should be struck down was, as I have stated, that they had been inseparably linked with the remaining Cls. 3 to 7 by virtue of the opening words of Clause 1 "subject to the other provisions of this schedule." Therefore, that argument would depend upon the view taken in respect of Cls. 3 to 7.
75. Now, it was not disputed by either side that when the bidi is prepared the tendu leaf in which the tobacco is wrapped is more or less green and flexible. It is at this stage that the bidi must be wrapped. After a few days the leaf dries up and becomes brittle and, therefore, once a bidi is rolled it is impossible to salvage the tendu leaf. Therefore, it is implicit in the provisions of Clause 3 that if the employer makes a chhat which can only be up to 5 per cent, and decides to accept the first option offered to him, he must lose 5 per cent of the tendu leaves which he has doled out for the purpose of manufacture to the employee because it is impossible to unroll the tendu leaf it is dry. It was also suggested that in the process of breaking up the bidi, the most valuable ingredient of the bidi, viz., the tobacco, could not all be retrieved, and that there must be a substantial percentage of wastage and also some mixture with tendu leaf particles and power. Therefore, by the acceptance of the so-called option the employer stood the risk of
(a) definitely losing 5 per cent of the tendu leaves without payment,
(b) getting back the tobacco which he is supposed to recover, of a slightly inferior quality, and
(c) not of the identical weight but somewhat less.
76. He may accept these consequences, otherwise he has the second option which only means that he must accept all the rejected bidis and pay full wages for them. The clause clearly controls the right of the employer to reject goods which are of bad workmanship or not marketable, or to pay for the goods according to quality, which was admittedly the system prevailing till the date of the notification.
77. Clauses 4 and 5 must be read together. Clause 4 deals with rejection of bad bidis of a percentage of more than 5 per cent but less than 10 per cent. If there is a dispute as to the bidis rejected in this slab, then a sort of domestics tribunal has been set up to try the issue. The tribunal is to consist of equal number of representative of employees and the employer who are to inspect whether the rejection was properly done or not, and in the event of difference of pinion, the opinion, the opinion of the majority is to prevail. If the opinion of the tribunal is divided, then the employer has an option to retain the 5-10 per cent, chhat and pay half the rates fixed or an alternative option not to retain it, in which case the employees should destroy the bidis forthwith. Clause 5 deals with the manner of selection of the personnel of the domestric tribunal.
78. Incidentally, there was a short point raised as to the interpretation of the last paragraph of this clause. The learned Special Government Pleader urged that it could not be the intention of the clause that bidis should be wholly destroyed, but it must be read in terms of a similar provision in Clause 3, that is to say, that 5-10 per cent chhat bidis qua bidis should be destroyed, but that the employer is to get back the tobacco. That may have been the intention of the framer of the notification, but the language used does not warrant such a construction. It says :
"If the employer does not want to retain these bidis, the employee shall destroy them forthwith."
79. The use of the word "them" can only refer to the bidis inclusive of the tobacco and not give the employer the right to retrieve the tobacco.
80. Now, it was urged that the provision for this so-called domestic tribunal is wholly illusory. Conditions being what they are, the representatives of the employer and the employees will never see eye to eye and, therefore, the employer must accepts the goods paying half rates to them though they may be absolutely worthless or have the bidis destroyed entirely.
81. For the purpose of the decision of the questions arising in these contentions are not all german. What it is necessary to emphasize is that Cls. 4 and 5 of the schedule to the notification against control the right of the employer not to pay for bad workmanship or at any rate to pay according to quality. These clauses also give power to set up domestic tribunal and to adjudicate a dispute which is essentially an industrial dispute. These powers will, therefore, have to be examined.
82. Turning to Clause 6, it provides that where the chhat is above 10 per cent the employee shall be paid full wages. But here again the employer is given an option. He can take action against a bad workman provided the chhat in the case of that workman is "more than 10 per cent, for six continuous working days in a calendar month." If he cannot take such action, he is bound to pay for all the bidis above 10 per cent even if they be of bad workmanship or contain little or no tobacco and whether they are suitable for purposes of smoking or not.
83. Now, it was argued that under law every seventh day must be a holiday. Therefore, under the second part of Clause 6 the workman can continue to do as much bad work as he likes for five days in a week provided he does good work on the sixth day, in which case the option cannot be availed of by the employer. I find much substance in this contention. The right of action given to the employer is wholly illusory. What action should be taken is also not shown. Presumably, it could only be action according to law, that is to say, under the standing orders which in their turn do not justify imposition of a penalty except for gross negligence which has to be established in a departmental enquiry. All this is provided where the chhat is more than 10 per cent, for six continuous working days in a calendar month, which will be a rare occasion.
84. Again I emphasize that with these minor details of the notification I am not immediately concerned. What is of importance to note is that Clause 6 of the schedule to the notification virtually enjoins that the employer cannot reject goods above 10 per cent. In other words, it is clear that the employer has to pay for 90 per cent of the bidis even though they are of bad workmanship, defective for any reason such as little or no tobacco in some of them or the leaves broken so that it cannot be smoked. I shall advert to this clause again. It was really on these Cls. 3, 4 and 6 that the learned Special Government Pleader found the greatest difficulty in justifying the notification under the express powers conferred by the Act and was, therefore, impelled to support them under the doctrine of implied powers.
85. Clause 7 prescribes that chhat shall be made only once in a day by the employer and it shall be at any premises within two miles from the premises where bidis are manufactured. This is an incidental provisions intended to hit the double right of chhat to which I have referred above - once by the thekedar and once at the factory - which the employer used to exercise in case of bidis manufactured by the employee at his home, and to stop the practice of chhat at any place other than a factory. The clause does not say this, but having regard to the existing conditions it was urged that it has that effect. The worker works in his home which is separate in every village and the factories or centres established by the employer are not within two miles of the majority of villages. So the employer can never do the second chhat at the factory
(a) because the factory centre is beyond two miles of the worker's home, and
(b) because he cannot remove the goods from the home to the centre or factory within a day.
86. The provision, therefore, inevitably and directly affects the existing terms and conditions of work and the right to reject goods of bad quality or workmanship or to pay only according to the quality of the work.
87. Then there is the explanation which defines "employer" and includes his thekedar, contractor or agent as the case may be. As to this clause it was urged that there is no power to define the very word which is defined by the Act. On behalf of the State, however, the learned Special Government Pleader supported the explanation by urging that it was not in conflict with the definition in the Act, and was merely in terms thereof. He urged that it may be regarded as mere plusage. No doubt, comparing the two definitions of "employer" in the Act and in the notification, it could be said that the notification does not go beyond the definition in S. 2(e) of the Act. But there is a vital difference and that difference is brought out if we consider the opening words of the interpretation clause in S. 2 : "Unless there is anything repugnant in the subject or context." Those crucial words are omitted in the notification and therefore, so far as the definition in the notification is concerned, whether the context otherwise implies or not, the word "employer" shall always include thekedar, contractor or agent. This is, in my opinion, a substantial departure form the provisions of the Act and in this light the power to do so will have to be examined.
88. To summarize, an analysis of the provisions of the notification shows the exercise of the following powers :-
(a) The power to compel the employer to accept all bidis up to 90 per cent, and so to circumscribe the employer's right to reject bad or worthless goods, not to pay for unsaleable goods or to pay only according to the quality of the work or goods (Cls. 3, 4, 5 and 6 of the schedule to the notification).
(b) To provide for the settlement of disputes (Cls. 4 and 5).
(c) To constitute an arbitral tribunal for the settlement of those disputes (Cls. 4 and 5).
(d) To prescribe the mode and place of rejection of goods, or in other words, the right of the employer to select the place where his business shall be carried on (Clause 7).
(e) To alter the definition of the work "employer" as given in the Act (the explanation).
89. Mr. Phadke on behalf of the petitioner urged that none of these powers are conferred upon the State Government by the provisions of the Act and that, therefore, the notification is ultra vires of the powers under the Act. He also urged that the promulgation of this notification has affected the employer's right to carry on his occupation, trade or business under Art. 19(1)(g) of the Constitution. He further urged that the procedure prescribed by the Act in S. 5 read with Ss. 7, 8 and 9 had not been complied with and, therefore, the notification was bad. The learned Special Government Pleader on behalf of the State; Mr. M. N. Chandurkar on behalf of respondent 2, the Independent Labour Party's the Central Provinces and Berar Bidi Worker's Union, and Mr. S. V. Dhabe on behalf of the intervenor, the M.P. Rashtriya Bidi Majdoor Sangh, controverted these points. Mr. Abhyankar raised an additional issue, namely, that even if the notification could not be justified under the express powers under the Act, those powers were implied. They must be regarded as ancillary to the powers under the Act, and, therefore, the notification would be justified as a legitimate exercise of he implied powers of the Government. With the arguments of Messrs. Qazi and Dhabe, my learned Brother has amply dealt, and I am in respectful agreement with his conclusions.
90. Thus, five points arise for decision in these cases :-
(1) Are any of the clauses of the schedule to the notification ultra vires of the powers of Government under the Minimum Wages Act (XI of 1948) ?
(2) If any of them cannot be justified under the express powers under the Act, can the notification or any of its provisions be justified under the implied powers under the Act ?
(3) Is the notification ultra vires of Art. 19(1)(g) of the Constitution ?
(4) Was the procedure laid down by the Act for the promulgation of such a notification followed and if not, what is its effect ?
(5) If one or more clauses of the notification are found ultra vires, what should be the effect ?
91. So far as the first point is concerned, my learned Brother has held that none of the provisions of the notification or its schedule can be justified under the express provisions of the Act. On this point I am, with respect, in complete agreement with him so far as Cls. 3 to 7 of the schedule to the notification are concerned. None of those clauses can be justified under the provisions of the Act. But, in my opinion, Cls. 1 and 2 of the schedule are good and directly flow from the express powers granted under the Act. My leaned Brother has, however, held the entire notification valid and has justified it under the doctrine of implied powers. On both the questions it is, therefore, necessary to refer to the scope and object of the Act and to some of its important provisions.
92. In South India Estate Labour Relations Organization v. Madras State case [1954 - I L.L.J. 8] which was referred to by the Supreme Court of India in Bejay Cotton Mills, Ltd. v. State of Ajmer [1955 - I L.L.J. 129] Venkatarama Ayyar, J., traced the genesis of the Minimum Wages Act, 1948 (XI of 1948). He said that it was passed in consequence of the "Minimum Wage Fixing Machinery Convention" held at Geneva in 1928 and certain resolutions passed at the Convention which were embodied in Arts. 223 to 228 of the International Labour Code, Vol. I, pp. 167 to 174. He stated that :
"The object of these resolutions was to fix minimum wages in industries 'in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise, and wages are exceptionally low.' - Art 224(1), p. 169. The Minimum Wages Act was passed for giving effect to these resolutions. The preamble to the Act states that 'It is expedient to provide for fixing minimum rates of wages in certain employments'; and they are specified in part I of the schedule. As remarked in 'Industrial Awards in India, An Analysis" :
'The Act aims at making provision for the statutory fixation of minimum fates of wages in a number of industries wherein "sweated labour" is most prevalent or where there is a big chance of exploitation of labour.'
93. Thus the object of the Act is to provide for fixation of wages in trades in which labour is not organized and that will be clear from the list of trades enumerated in part I to the schedule."
94. Now, a scrutiny of the provisions of the Act will indicate that it is just this and no more that the Act gives power to do. The power and indeed the duty on the part of the appropriate Government to fix minimum rates of wages in employment specified in pars I and II of the schedule to the Act is laid down in S. 3(1)(a) and the proviso permits the appropriate Government to fix such rates for a part of the State or for any specified class or classes of such employments in the whole State or part thereof. Clause (b) of Sub-section (1) of S. 3 gives the power under certain conditions to review and revise the minimum rates, if necessary. Sub-section (2) of S. 3 describes the kinds of rates that may be fixed. They are minimum rates of wages for
(a) Time work - called "a minimum rate."
(b) Piecework - called "a minimum piece-rate."
(c) The minimum rates of remuneration in the case of employees employed on piecework for the purpose of securing to them a minimum rate of wages on a time-work basis - called "a guaranteed time-rate."
(d) In respect of overtime work - called "an overtime rate."
95. While the duty to fix rates under Sub-section (1) of S. 3 is preceded by the word "shall" and is, therefore, mandatory, the power to review and revise under Clause (b) of Sub-section (1) of S. 3 as also the power to fix different kinds of rates in Sub-section (2) of S. 3 are preceded by the word "may" giving a discretion to the appropriate Government. Then follow the provisions of S. 3, Sub-section (3), which are as follows :-
"(3) In fixing or revising minimum rates of wages under this section, -
(a) a different minimum rates of wages may be fixed for -
(i) different scheduled employments;
(ii) different classes of work in the same scheduled employment.
(iii) adults, adolescents, children and apprentices;
(iv) different localities;
(b) minimum rates of wages may be fixed by any one or more of the following wage-period, namely :
(i) by the hour,
(ii) by the day,
(iii) by the month or,
(iv) by such other larger wage-period as may be prescribed and where such rates are fixed by the day or by the month, the manner of calculating wages for a month or for a day, as the case may be, indicated :
Provided that where any wage-periods have been fixed under S. 4 of the Payment of Wages Act, 1936 (IV of 1936), minimum wages shall be fixed in accordance therewith."
96. Thus, S. 3, Sub-section 3(b)(iv), expressly prescribes "the manner of calculating" wages in particular cases. The necessary implication is that in other cases, e.g., in the case of piece-rates, no power to prescribe the manner of calculation or mode of payment is granted.
97. Section 4 indicates the components of the minimum rates of wages that the appropriate Government has been empowered to fix depending on the cost of living index number and the cash value of concessions in respect of supplies of essential commodities at concession rates.
98. These provisions prescribing the duties and powers of the appropriate Government to fix, review and revise the minimum rates of wages are governed by the definition of "wages" in S. 2(h). That definition is as follows :-
"2. In this Act, unless there is anything repugnant in the subject or context, -
(h) 'wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes house-rent allowance but does not include -
(i) the value of
(a) any house - accommodation, supply of light, water, medical attendance; or
(b) any other amenity or any service excluded by general or special order of the appropriate Government;
(ii) any contribution paid by the employer to any pension fund or provident fund or under any scheme of social insurance;
(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(v) any gratuity payable on discharge;"
99. The definition is plenary and overriding. It defines wages with reference to the contract of employment, express or implied, and states that wages shall mean all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, etc. Therefore, the definition, in my opinion, indicates clearly that the Act does not intend to abolish or give a complete go-by to the terms of the contract of employment subsisting between the employer and the employee. The effect of this definition is on the other hand to recognize the contract except in so far as the provisions of the Act modify it. Thus, the Act seeks to establish within its scope and object, a balance between the rights under the contract and the statutory right curtailing the contract. My learned Brother has in Para. 24 of his opinion held that the definition cannot be construed as limiting or taking away the implied power of the State Government to make provisions of the kind we find in the schedule to the notification, and that "in a sense it is descriptive of the term wages."
100. With respect, I am unable to accept this interpretation which is, in my opinion, contrary to the very terms of S. 2(h). Section 2(h) says : "Wages" means ... which can only connote that a definition is intended and not a description. I shall show hereafter that the implied powers can only flow from the express powers and then too by necessary intendment alone and that in no case can powers be implied which are contrary to the express provisions of the statute.
101. In both Ss. 3 and 4 the words used throughout are "minimum rates of wages" and, therefore, a point was taken by the learned Special Government Pleader that the word "wages" which is defined in S. 2(h), has not the same connotation as the word "wages" in the expression "minimum rates of wages" and, therefore, the definition should not be incorporated into all the clauses of Ss. 3 and 4 which speak of minimum rates of wages.
102. I am unable to accept this contention. In the first place, it will render the definition virtually nugatory because it will cease to apply to Ss. 3(1)(a) and (b), S. 3(2) and S. 3(3), so that the very purpose for which the definition was incorporated would fail. In the second place, the argument advanced suggests that the expression "minimum rates of wages" is a term of art in contra-distinction with the definition of "wages." The expression "minimum rates of wages" is not defined in the Act, and, in my opinion, there is no warrant for the suggestion that it has some peculiar connotation other than that implied by plain English. In my opinion, wherever the word "wages" occurs in the expression "minimum rates of wages" it must be read as defined in S. 2(h). Thus it seems clear to me that the duty and power of the appropriate Government
(a) to fix, review and revise minimum rates [S. 3(1)];
(b) to fix the classes of rates [S. 3(2)];
(c) to apply them to different employments in classes of work [S. 3(3)]; and
(d) to different wage-periods [S. 3(3)(b)] -
are all subject to the contract between the employer and the employee. It is a fundamental provision under the Act, therefore, that the contract between the employer and the employee governs and shall continue to govern save and except that it is modified by the exercise by the appropriate Government of the express powers given under the Act. I stress this point here because it seems to me that the it must have a most decisive effect on the question of he implied powers of Government.
103. Section 5, Sub-section (1), deals with the procedure for fixing minimum rates and the two methods to be followed by the appropriate Government, viz. :
(a) either to appoint committees or sub-committees to hold enquiries and advice the Government in the fixation or revision of minimum rates of wages or
(b) to publish its proposals for the information of persons likely to be affected thereby and specify a certain date - not less it than two months from the date of the notifications on which the proposals which be taken into consideration.
104. Sub-section (2) requires a notification to be issued by the appropriate Government fixing or revising the minimum rates of wages and makes provision for the coming into force of the notification. The proviso to Sub-section (2) of S. 5 makes it obligatory on Government to consult the advisory board when it has not appointed a committee or committees to hold enquiries and advise it. Upon the provisions of this section was founded the argument under pint No. 4 mentioned above. Sections 7, 8 and 9 provide for the setting up and powers of the advisory board, the central advisory board and the committee and sub-committees. Section 10 provides for correction of errors, omissions, and accidental slips in Government notification. Then we come to S. 12 on which the greatest reliance was paled on behalf of the State to justify the provisions of their notification under the express powers conferred by the statute. I need not refer to its provisions because my learned Brother has fully dealt with that arguments and negatived any power in the State Government to make provisions such as are contained in the schedule under S. 12.
105. Then I turn to Ss. 20 and 21 of the Act which, in my opinion, are again important. Then run as follows :
"20. (1) The appropriate Government may, by notification in the official gazette, appoint any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under Clause (b), or Clause (c) of Sub-section (1) of S. 13 or the wages at the overtime rate under S. 14, to employees employed or paid in that area.
(2) Where an employee has any claim of the nature referred to in Sub-section (1) the employee himself, or any legal practioner or any official of a registered trade union authorized in writing to act on his behalf or any inspector, or any person acting with the permission of the authority appointed under Sub-section (1), may apply to such authority for a direction under Sub-section (3) :
Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable;
Provided further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3) When any application under Sub-section (2) is entertained, the authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry if any as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct :
(i) in the case of a claim arising out of a payment of less than minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount of such excess :
(ii) in any other case, the payment of the amount due to the employee, together with the payment of such compensation as the authority may think fit, not exceeding ten rupees; and the authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered -
(a) if the authority is a Magistrate, by the authority as if it were a fine imposed by the authority as a Magistrate, or
(b) if the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate.
(6) Every direction of the authority under this section shall be final.
(7) Every authority appointed under Sub-section (1) shall have all the powers of a civil Court under the Code of Civil Procedure, 1908 (V of 1908), for the purpose of of taking evidence and of enforcing the attendance of witness and compelling the production of documents, and every such authority shall be deemed to be a civil Court for all the purposes of S. 195 and Chap. XXXV of the Code of Criminal Procedure, 1898 (V of 1898).
21. (1) Subject to such rules as may be prescribed, a single application may be presented under S. 20 on behalf or in respect of any number of employee employed in the scheduled employment in respect of which minimum rates of wages have been fixed and in such cases the maximum compensation which may be awarded under Sub-section (3) of S. 20 shall not exceed ten times the aggregate amount of such excess, or ten rupees per head, as the case may be.
(2) The authority may deal with any number of separate pending applications presented under S. 20 in respect of employees in the schedules employments in respect of which minimum rates of wages have been fixed, as a single application presented under Sub-section (1) of this section and provisions of that sub-section shall apply accordingly."
106. I have reproduced these sections verbatim in order to show that the Act has made the most detailed provisions for the settlement of all claims arising out to payment of less then the minimum rates of wages. It is impossible to overlook the amplitude of the powers conferred upon the authority set up to hear and decide disputes regarding minimum wages.
107. The remedy provided for the employee is so simple that not only an illiterate employee but any legal practitioner, any official of a registered trade union, any inspector, or even any person acting with the permission of the authority could move in the matter. By Clause (i) Sub-section (3) of S. 20, the authority makes a summary enquiry into a claim arising out of a payment of less than the minimum rates of wages, has the power to reimburse short payment to the employee together with such compensation as the authority may think fit, not exceeding ten times the amount unpaid. It has also got the power under S. 20, Sub-section (3), Sub-clause (ii), to hear and decide a dispute in "any other case" and to order the payment of the amount due to the employee, together with such compensation as the authority may think fit, not exceeding Rs. 10. Sub-section (5) of S. 20 gives the authority the power to recover the amount ordered to be paid to the employee as if it were fine imposed, or to entrust it to a Magistrate to recover it as such. Sub-section (6) of S. 20 makes every direction of the authority final. Section 20 permits one application to be made in respect of any number of employees and the authority is given the power by Sub-section (2) of S. 21 to consolidate any number of separate pending applications in respect of employees and treat them as a single application.
108. Thus the Act has given the most anxious consideration to proving a very effective, speedy nd cheap remedy for the enforcement of the right of the employees to receive minimum wages and in "any other case" also. So wide are the powers of the authority that it can adjudicate upon almost any and every claim in relation to wages and grant redress. It may do so not merely in the case of an individual employee, but, if need be, in the case of any number of employees. It is even possible to decide questions relating to the entire industry itself, by virtue of S. 21.
109. I shall show hereafter that almost every one of the provisions of Cls. 3 to 7 of the notification schedule would fall within the provisions of Ss. 20 and 21 and would really be questions which the Act says the authority alone shall decide. By thus defining the power and jurisdiction if the authority to whom special jurisdiction is given the sections necessarily delimit the power of the Government to decide or deal with the same questions by a mere notification. These considerations, in my opinion, have an important bearing on the question of implied powers.
110. The so-called doctrine of implied powers is, in my opinion, not a rule of substantive law. It is merely a rule of construction or interpretation. The leading case in Fenton v. Hampton [(1958) 11 Moore P.C. 359; 117 R.R. 32], an authority which my learned Brother has referred to and relied upon. At p. 41 of the Revised Reports, after quoting the Latin maxim "Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa esse non potest" (the equivalent of which Broom has translated for us "Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect" - see pp. 309 and 313 of Broom's Legal Maxims, 10th Edn.) . Pollock, C.B., states the rule thus :
It becomes, therefore, all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bestow, I take the matter to stand thus : whenever anything is authorized, ad especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something else will be supplied by necessary intendment. But if, when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the doing of that something else, or even going a step farther, that it is only in some particular instances, as opposed to its general operation, that the law fails in its intention, unless the enforcing power be supplied, then in any such case the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus emissus.
111. To the same effect are the observation in the Trolly Draymen and Carters Union of Sudney and Suburbs v. Master Carriers Association of N.S.W. [(1905) 2 C.L.R. 509]. That was a case wherein an award made under the Industrial Arbitration Act (N.S.W.) 1901, by a Court of Arbitration appointed under the Act was called in question. Clauses 27 of the award prescribed that he employer shall employ members of the claimant union in preference to strangers (that is to say, persons who were not members of the union), other things being equal, and it was argued on behalf of the employers that his meant that the employer had to give notice to the union before they could engage a servant and amounted to an undue interference with the liberty of the employer to engage a servant without giving notice. This contention was sought to be met, on behalf of the workers' union, by suggesting that such a provision must necessarily be implied in order to make the Act and the award effective. Chief Justice Griffith, in delivering the judgment, negatived the implied power in the following words :
"Such a condition would involve, of course, a remarkable interference with the liberty of the employer, that he should not be allowed to engage a servant without giving notice of his intention to do so. For, whether the prescribed notice was public or private, there would be no difference in principle. In considering the question whether such a provision is to be implied in the Act, it is important to bear in mind that, if it is, the discretion of the Court is unlimited ad cannot be controlled. Is it a necessary inference from what the legislature has said that it did intend to confer such a power ? I confess that I cannot see any foundation for the argument ... Except so far as they are empowered to do so by the provisions of the Act, the Court cannot control the common law rights of the subject."
112. I may also here usefully refer to the following passages from Maxwell's Interpretation of Statutes :
At p. 361 : "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution."
At p. 362 : "In the same way, when powers, privileges, or property are granted by statute, everything indispensable to their exercise or enjoyment is impliedly granted also as it would be in a grant between private persons."
But after stating these propositions Maxwell states a further qualification in the following words :
At p. 364 : "But when an Act confers such powers, it also impliedly requires that they shall be exercised only for the purposes for which they were given and subject to the conditions which it prescribes, and also with due skill and diligence and in a way to prevent a needless mischief or injury."
113. There is also the following powerful statement of the rule as to implications in Crawford on "Statutory Constructions" at p. 266, Art. 168 :
"168. Implications. - The implications and intendments arising from the language of a statue are as much a part of it as if they had been expressed. But it is only necessary implications which may thus be read into the statute. Mere desirability or plausibility alone will to meet the test. And while the implication does not need to shut out every other possible conclusion, or be one form which there is no escape, it must be one, which under all the circumstances, is compelled by reasonable view of the statute, and the contrary of which would be improbable and absurd. In order to meet the test, the implication must be so strong in its probability that the contrary thereof cannot be reasonably supposed. Nor can implications contradict the expressed intent of the statue, for obvious the intent as expressed must prevail over the intent reached by implication. If the intent is expressed, there is nothing that can be implied. Nothing further is needed to reveal the legislative intent.
The reason for allowing the Court to give effect to necessary implications is quite apparent, Many matters of minor detail are often omitted from legislation. If these details could not be inserted by implication, the drafting or legislation would be an interminable process and the legislative intent would likely be defected by a most insignificant omission. Consequently, these minor details are considered as if included in the general terms of the enactment as well as in the purpose sought to be achieved by the legislature, and therefore, are regarded as actually intended by the legislature. In a broad sense, true implications are as much a part of the language which makes up the statue as the meanings of the various words are a part of it. Viewed from this standpoint, no exception is created to the general rule that the intent of the law- makers must be derived from the language used in the enactment. And the Court, is ascertaining a necessary implication, is simply determining and making effective the legislative will."
114. It is, in my opinion, clear from these passages that the doctrine can be applied only where the following conditions are fulfilled :
(1) There must be a duty imposed or power prescribed.
(2) On a reasonable construction of the statute there must be an impossibility in the exercise or fulfilment of that power, resulting in making its object or purpose nugatory.
(3) The impossibility must be such that it is not an impossibility in an individual case because then the law cannot permit powers by implication but the impossibility must be of a general nature so that the purpose and object of the duty or power is rendered impossible of achievement in every case. It is only then that powers by implication may be inferred.
These points, I believe, are the same as my learned Brother has deducted from the decided cases and other statements of law. But with all respect to him, I would add a fourth condition which is also deducible from the statement of Maxwell at p. 364 and the passage form Crawford. I would formulate the fourth condition as follows :
(4) The implication cannot contradict the expressed intent which must always prevail and where it becomes necessary to read an implication into an enactment the scope of the implication must be limited only to what is reasonably necessary and no more.
115. It is in the recognition of the fourth and the application of the last three conditions that my learned Brother and I differ.
116. Now, I have already indicated that the purpose and object of the Act is to provide minimum wages for employees and no more. For achieving this limited object the Act makes exhaustive provisions. It states what Government shall and shall not do in its duty to fix and in the exercise of its powers to revise ad review minimum wages.
117. Government must initially have regard to the terms of the contract of employment. This is fundamental and implicit in the definition of "wages" Government can certainly affect and modify the contract so long as it exercise its express powers. Indeed, every time a minimum rate is prescribed the contract must be affected. But the right to affect or modify the contract is expressly limited to the powers under the Act. Government must confine itself to the four classes of rates specified in Sub-section (2) of S. 3. Government may prescribe different rates for different scheduled employments or for different classes of work in the same scheduled employment; or for different localities; it may prescribe different rates for adults, adolescents, children and apprentices; it may fix the rates by the hour, the day, the month or a longer period. But save and except these express powers the Act prescribes that the contract shall continue to operate. Therefore, there is no scope for any implication. It is never assumed that the legislature has given powers which would infringe existing right, even though the Act would be inoperative without them - see Halsbury, Vol. 31, p. 545, Art. 323. Government has not been given the power to modify the contract of employment to such an extent as to give them the power to order the employer to accept bad work and pay full wages for it as is done in Cls. 3 to 6 of the schedule to the notification; or to set up a domestic tribunal as in done in Clause 4; or to decide an industrial dispute (Clause 4 again); or to define "employer" in any manner different from the Act. Secondly, if the legislature has intended to confer these powers on Government, it is reasonable to presume that they would have done so, in clear language, especially when they conferred several other powers. Therefore, in my opinion, there is no scope for implication of any further powers. The Act confers powers and delimits them itself by its express provisions.
118. The legislature moreover was not unaware that consequent upon the provision of minimum rates of wages in any employment several incidental and ancillary problems and disputes would arise. For these also the statute has made every provision. It has relegated all such problems and disputes for decision by the authority constituted under S. 20. The legislature was aware that such ancillary problems and disputes would arise and would be infinite in their variety. It is clear that the legislature did not intend that Government should have the power to solve all such problems and resolve all such disputes through the simple expedient of a notification. If such power can be attributed to Government, even by implication, then the provisions of Ss. 20 and 21 would be rendered largely nugatory and the wide jurisdiction conferred upon the authority rendered practically useless. The very constitution of the authority, the wide jurisdiction conferred upon it, the amplitute of its powers, and the efficacy and expeditiousness of the remedies it can provide, are indicative of no other intention, but that the authority alone shall be the forum where all such ancillary disputes and "claims" shall be decided. That necessarily excludes the inference of any power in Government to do so by notification.
119. The statute creates new duties and imposes new obligations and liabilities and at the same time prescribes a new remedy and creates a new forum for its enforcement. In such case the general rule is "that no remedy can be taken but the particular remedy prescribed" and only before the particular forum. [See Art. 340, p. 551 of Halsbury's Laws of England, Vol. 31.]
120. In Barraclough v. Brown [1898 A.C. 615] Lord Watson stated the rule as follows :
"... The right and the remedy are given uno flatu, and one cannot be dissociated from the other. By these words the legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable; and has, therefore by plain implication, enacted that no other Court has any authority to entertain or decide these matters."
121. These remarks would a fortiori apply to a case where the question is whether a special quasi-judicial tribunal has a certain jurisdiction or whether it vests in executive Government to provide for the same matters by notifications.
122. The power to revise minimum wages has, in my opinion, been well and truly exercised by the State Government in Cls. 1 and 2 of the schedule to the notification. These clauses are justified under their powers under S. 3 read with S. 5(2). But the further argument is that unless the several provisions incorporated in Cls. 3 to 7 of the schedule are made, it will be impossible to give effect to Cls. 1 and 2 and the duties and powers of Government under S. 3 of the Act. It was urged that having regard to the circumstances of this industry and the terms and conditions on which work was being done, these powers were absolutely necessary to be implied.
123. I have already adverted to the provisions of the Act and especially to Ss. 20 and 21, and I have there shown that these sections were advisedly so widely expressed that the authority has the power to investigate all claims arising out payment of less than the minimum rates of wages. In view of the setting up of such san authority by the Act itself, was it really essential for Government to have made the provisions contained in Cls. 3 to 7 ? If Government found that the employer was exercising his power of rejection to an unconscionable degree or was illegally taking the bad bidis and clandestinely selling them for gain, it was a clear case where the employer by these practices was depriving the employee of the minimum rate of wages prescribed by Cls. 1 and 2; because under Cls. 1 and 2, the employer would be bound to pay for all bidis, manufactured by the employee. Therefore, if the employer only accepted good bidis, took away free of charge the bad bidis and sold them, he did not pay for them. Therefore, that would result in non- payment or payment of less than the minimum rate of wages. That would immediately give rise to a claim that less than the minimum rate of wages has been paid and so give jurisdiction to the authority. Similarly, if the employer unduly or excessively rejected bidis acceptable by the standards of any reasonable man, the employer was either not paying or paying less than the minimum rate of wages. For all such claims the Act has provided a remedy and a forum for adjudication, in Ss. 20 and 21.
124. But by the notification Government is virtually adjudicating, the dispute which properly falls within the purview and power of the authority under S. 20 in anticipation of its having arisen. It virtually assumes that the employer will continue to do excessive chhat and that a dispute on that score is bound to arise and therefore the notification proceeds to lay down that the employer shall not reject more than 5 per cent. If he rejects between 5 and 10 per cent, it shall be adjudicated by the arbitral tribunal set up, and lastly that the employer shall in no case reject more than 10 per cent and pay for 90 per cent of the bidis whatever their quality. That in my opinion is the true meaning of Clause 6 though it may be couched in a language which may make it appear innocuous. The employer is enjoined to pay full wages in case of chhat above 10 per cent. which can only mean that he must accept the work even if bad. He has hardly an option of rejecting when he must pay it, in any case.
125. A notification is never an adequate substitute for an adjudication judicial or quasi-judicial. A notification is rigid and inelastic and can never have regard to the merits and demerits of individual cases or classes or categories of employments, whereas a tribunal can always take peculiar circumstances into account - circumstances which may be special to an individual or a class of workmen or to a class or classes of work. It is not surprising, therefore, that the legislature advisedly choose to grant the latter remedy for adjudication of disputes and by implication negatived the former. In these very case, to take an example, if in the case of an individual worker should the employer reject, say 50 per cent of the bidis, it may be that the employer is right because work can be as bad as that in given cases. In such a case, under the Act the tribunal can adjudicate whether such a rejection is proper and fair, but the notification makes that impossible, and leads to the possible, but none the less alarming, result that all the bad work of whatever kind upto 90 per cent, must be paid for in full.
126. On behalf of the State the learned Special Government Pleader pointed out a number of difficulties in the implementation of Cls. 1 and 2, in view of which, he said, Cls. 3 to 7 became necessary. He urged that most of the labour is illiterate and uneducated, that they are left to the mercy of unscrupulous and scheming employers who have the means to litigate and harass the worker, and therefore the machinery set up under Ss. 20 and 21 is in most cases rendered useless to make the rate of minimum wages effective. In my opinion, it is precisely for this reason that the legislature made the powers of the authority so wide and all-embracing, and the procedure so simple that even an ignorant employee could easily avail of it, and what is more necessary to emphasize is that any inspector could move on their behalf. Therefore, Government has merely to maintain vigilance and order the inspector to take immediate action on behalf of the employees if any one or more of these practices continued, resulting in payment to employees of anything less than the minimum rates of wages. That is the way indicated by the Act and not by a notification which can hardly take into account the variety of case that may arise. There is also in the industry a trade union which can move through any of its officers. There is no reason to suppose therefore that the rates of minimum wages fixed by Cls. 1 and 2 of the schedule to the notification will not be made effective without Cls. 3 to 7. A similar attempt to prescribe the mode or procedure was made in a notification dealt with in the case in P. G. Chakravarthy v. Manager, Bewan Tea Estate [1958 A.I.R. Assam 12] and was rightly struck down. The case is very apposite here.
127. But, as I have said, the question here is not a question of a nice balancing of probabilities. Having regard to the rule as to implied powers, the question here is whether it will be impossible to ensure the payment of minimum wages prescribed by Cls. 1 and 2 unless Cls. 2 to 7 are there. I have already said that in my opinion all these are really questions which may only give rise to disputes and do not show that the rates would be impossible to enforce. Thus these questions fall within the purview of the authority under Ss. 20 and 21, which provide a cheap, effective and adequate remedy. It seems to me then entirely unnecessary to concede such powers in favour of Government, quite apart from the fact that it would also be contrary to the clear intention of the legislature.
128. In Para. 14 of his opinion my learned Brother has stated that "the intention of the State Government to enable a bidi worker to get Re. 1 and 69 nP. for 1,000 bidis rolled by him would be frustrated if the employer were to reject 500 bidis out of those rolled by him on the ground that they are below standard and then to utilize those bidis himself by selling them in the market."
129. With the greatest respect, I am unable to see how in the face of Ss. 20 and 21 the intention of Government will be frustrated because the employer rejected 500 out of 1,000 bidis and then sells them privately. The inspector of Government of the worker or any of the other agencies mentioned, has only got to lay the facts before the authority and the question whether the employer rightly or wrongly rejected the 500 bidis would be immediately decided and the authority can undoubtedly find that the employer cannot retain those bidis and not pay for them; it can order full payment if need be and what is more, order payment of some compensation also - so that the rate of minimum wages fixed could become at once effective and not be frustrated. Indeed, a mere notification cannot effectively do this because there may be a case where the employer may be right in rejecting even 500 out of a 1,000 bidis.
130. After the passage I have referred to above, my learned Brother has held that "If the State Government could have no power to prescribe some conditions of the kind to be found in Cls. 3 to 7, it would not be able to made effective the rates of wages fixed by it."
131. With all respect, I have already said that in my opinion the rates could be made effective by virtue of Ss. 20 and 21. But I may also point out that the test for the grant of implied powers is not that the express power granted will become merely "ineffective" but that it will become "impossible" of enforcement. That, in my opinion, is a cardinal distinction. Of course, if "ineffectiveness" is the test, then it is so elastic a standard that I conceive that almost any power can be claimed to be implied as a result of the express power to fix minimum wages, e.g., to control the managements of companies in various ways; to check their expenditure and profits and to order how they shall carry on the working. All these can be said to be matters which make rates of minimum wages effective under conceivable circumstances. I do not think that that was the intention of the legislature, when it passed the Minimum Wages Act.
132. My learned Brother has referred to two cases, namely, A. M. Allison v. B. L. Sen [1957 - II L.L.J. 472] and H. G. Beason v. H. Sultan, Deputy Commissioner, Lakhimpur [1958 A.I.R. Assam 1]. Both these cases arose out of proceedings taken under S. 20 of the Act. This itself will show that all such disputes could and actually were within the jurisdiction of the authority under that section and could be decided by it. These cases were cited in order to show to what extent the contract between the employer and the employee can be interfered with by Government, but it is essential to emphasize that these cases themselves show that the proper remedy for the decision of such disputes is the authority and not Government by issuing a notification.
133. None of the two cases moreover is an authority on the implied powers of Government. They do not consider the question of implied powers at all. They merely considered if the notifications in each case were justified under the Act. Thirdly, in neither case was the notification in pari materia with the notification in the present cases. In none of the notifications made in those cases were provisions analogous to Cls. 3 to 7 incorporated. On the contrary, the notifications in each of these cases prescribed that the existing tasks an hours of workload shall continue. In the present cases what was done is precisely the reverse. The existing tasks were directly and sweepingly interfered with.
134. In the Supreme Court case the managers of the tea gardens were paying their labour, as follows :
To males - at 8 annas per day for plucking 16 seers of green leaves.
To females - at 6 annas per day for plucking 12 seers of green leaves.
135. That was the work-load or task, in respect of which the basic wage were 8 annas and 6 annas respectively. The notification merely increased this basic wage to 12 annas and 11 annas respectively. There was no dispute about this fixation. But the dispute was about something else. If the labourers plucked larger quantities of green leaves, they used to be paid prior to the notification, by way of extra wages at the rate of 6 pies per seer in excess of 16 seers and 12 seers respectively. Now, as soon as the notification came, what the employer did was that they raised the quantum of work on the basis of which the extra payment was being made. In other words, they refused to make the extra payment to their labour on the old basis unless the green leaves plucked by them exceeded 24 seers and 22 seers respectively. Previously, be it noted, these figures were 16 seers and 12 seers respectively.
136. The notification as amended, after prescribing the minimum rates of wages, had also prescribed that the existing tasks and hours of work shall continue until further orders, and the point that arose for decision was whether this was a proper exercise of the power to fix minimum wages. Their lordships held that th sole intention of Government in issuing the notification was to increase the basic wages while maintaining the same basic work-load or task assigned to male and female workers. They observed that no doubt in the fixation of minimum wages there must necessarily be some interference with the work-load or task and they held that the basic wages fixed by that notification were merely "correlated to the existing work-load or task" and were, therefore, justified. This case was the basis for the decision of the subsequent Assam case referred to above.
137. the principle of these decisions to the present case, there is no doubt that the task or work-load or to put it generally the contract, can be interfered with in the performance of Government's duty to fix or revise minimum wages. There is also no doubt that in the fixation of minimum wages the rates may be correlated to the task or work-load. But in the present case the notification does much more than was indicated by their lord-ships or was one by the notifications impugned in these cases. Here the notification interferes and directly seeks to control the relationship of employer and employee, the right of the employer to see to the quality of the work, and prescribes that the employer shall take 90 per cent of such work as is preferred or tendered even though the bidis may be bad or defective or virtually no bidis at all, e.g., not containing any tobacco or much less than the normal quantity of tobacco, Similarly it sets up a tribunal of adjudication it directly purports to decide an industrial dispute and provides machinery to determine it; and it changes the definition of "employer" so an to make it applicable in some more instances than the Act contemplated. All this, it is claimed, can be done because of the implied powers. In my opinion, this cannot possibly be said to amount to correlation of wages to the existing work-load or task within the meaning of the principle laid down by their lordships of the Supreme Court.
138. Mr. Dhabe in the course of his arguments on behalf of the interveners referred to the decision of a Division Bench of this Court in Madhya Pradesh Mineral Industry Association v. Regional Labour Commissioner [1958 - I L.L.J. 751] (to which I was a party) and he argued that there Mr. Justice Tambe and I have held that the Minimum Wages Act was a piece of social legislation. He therefore, urged that we should give it a wide interpretation so that its beneficial object should be achieved and not be frustrated.
139. In that case the Division Bench was concerned with the question whether a person engaged in stone-breaking operations in a manganese mine could be deemed to fall within the entry "employment in stone- breaking or stone-crushing." In that case the question was one of interpretation of an express provision of law in regard to which there was doubt and we construed an entry in the schedule in consonance with the object and purpose of the Act. There is no question here of the express powers under the Act. These express powers have been considered and negatived by my learned Brother and I am with respect, in complete agreement with him. The ground that a legislation is a piece of social legislation cannot be germane in considering the vires of a notification or in considering the implied powers of Government to make one or more of the clauses of the notification. I do not think that in the name of social justice and social legislation we can alter the rule as to implied powers the scope of which I have already discussed above. Apart form the normal, well-established rules of interpretation, considerations of social justice are irrelevant. See remarks in Central India Spinning, etc., Company v. State Industrial Court [1959 - I L.L.J. 468].
140. I have given my best consideration to the question whether it is not possible to uphold one or more of the provisions of Cls. 3 to 7 and extricate them from the provisions which are bad. But looking at it from any point of view it seems to me that the provisions of Cls. 3, 4 and 6 from part of one integrated scheme and are inextricably bound up together, so that it becomes impossible to cut out or more sentences from those clauses without doing violence to the intention of the scheme and also rendering it in large measure incomprehensible.
141. The same, however, cannot be said regarding the first two clause of the notification schedule. They are, as I have already held, a proper exercise of the power to revise minimum rates of wages, and reading them alone it is clear that those rates can be given effect to.
142. No doubt, the first clause is preceded by the opening words "Subject to the other provisions of this schedule." It was argued by Mr. Phadke that if Cls. 3 to 7 are struck down, then Cls. 1 and 2 must go because they are subject to Cls. 3 to 7. In my opinion, however, Cls. 1 and 2 are capable of enforcement by themselves and the striking down of Cls. 3 to 7 will not render Cls. 1 and 2 in the least bit ineffective or nugatory. It seems to me that it is immaterial whether I also hold that the words "Subject to the other provisions of this schedule" should be removed from Clause 1 or not. The words would still operate at least so far as Clause 2 is concerned. I would therefore not interfere with any part of Cls. 1 and 2 at all but would declare Cls. 3 to 7 ultra vires and order them to be deleted from the notification.
143. In practice also I have already shown that Cls. 1 and 2 are capable of enforcement. If the employer still persists in the reprehensible practice of excessive chhat, the authority can always be moved immediately, if necessary by the Government inspector, not only on behalf of any individual but also on behalf of sections of the industry and so all the disputes referred to in the provisions of Cls. 3 to 7 could be adjudicated, and the right of chhat effectively controlled, thus ensuring the payment of the minimum rates fixed.
144. I may now usefully summarize my conclusions as to why I hold that Cls. 3 to 7 of the schedule to the impugned notification are ultra vires of the implied powers of Government. The reasons are :
(1) That the Act is a comprehensive enunciation of the express powers and, therefore, the necessary inference is of the exclusion of implied powers.
(2) The Act itself makes an express provision in S. 3, Sub-section 3(b) (iv), regarding the manner of calculating wages and limits it to only two cases. Therefore, there can be no power implied in calculating the rates of wages for work on piece-rate, as in the present case.
(3) The particular power claimed must be essential to the purpose and object of the Act, and in the present case it is impossible to hold that all these powers invoked to support Cls. 3 to 7 are so necessary that otherwise the fixing of minimum wages would not be possible.
(4) Ample provision is made in Ss. 20 and 21 of the Minimum Wages Act and other laws for the implementation of the rates fixed and for decision of all these questions which Cls. 3 to 7 virtually decide. Therefore, implied powers cannot be conceded to Government to do so by a mere notification.
145. Upon this view, it is unnecessary for me to decide the third point set forth by me above regarding the notification being ultra vires of the powers under Art. 19(1)(g) of the Constitution. As to be fourth point, I am in respectful agreement with the opinion of my learned Brother that the procedure laid down by the Act for the promulgation of the notification was substantially followed.
146. In the result I would partly allow the petitions and declare that Cls. 1 and 2 of the schedule to the notification are valid but that Cls. 3 to 7 thereof are ultra vires of the powers of Government under the Minimum Wages Act. In view of the partial success and failure of either party I would make no order as to costs.
147. As there was difference of opinion between Mudholkar and Kotval, JJ., the matter was placed before Justice Sri Tambe. The opinion of Tambe, J., was as follows :-
Tambe, J.
148. On difference of opinion between Mr. Justice Mudholkar and Mr. Justice Kotval, these cases have been placed before me under the orders of my lord the Chief Justice of date 12 August 1958.
149. The question raised relates to the vires of the notification dated 11 June 1958, issued by the State Government of Bombay (Labour and Social Welfare Department) in exercise of the powers conferred on it by Sub-section (2) of S. 5 read with Clause (b) of Sub-section (1) of that section of the Minimum Wages Act, 1948 (hereinafter called the Act). By this notification the State Government revised the minimum rates of wages in respect of the employment in any tobacco (including bidi-making) manufactory in the Vidharbha region. The said notification reads as follows :-
"MINIMUM WAGES ACT, 1948"
No. MWA. 1557-J. - In exercise of the powers conferred by Sub-section (2) of S. 5 read with Clause (b) of Sub-section (1) of that section of the Minimum Wages Act, 1948 (XI of 1948), and after consulting the Advisory Board and in supersession of the former Government of Madhya Pradesh Labour Department notification No. 564-451 - XXIII, dated 23 February, 1956, the Government of Bombay hereby revise the minimum rates of wages in respect of the employment in any tobacco (including bidi-making) manufactory in the Vidharbha region of the State of Bombay as mentioned in the schedule herein to annexed and direct that this notification shall come into force with effect from 1 July 1958.
Schedule Subject to the other provisions of this schedule, the revised minimum rates of wages payable to employees per thousand bidis (when leaves are supplied by the employer) shall be as follows :-
Area Revised rate in rupees (i) Nagpur district ... 1.69 (ii) Bhandara district ... 1.62 (iii) Chanda, Akola, Buldhana, Yeotmal, Amraoti and Wardha district. ... 1.56
2. For all bidis in which 7 chataks or more of tobacco mixture is used and for those bidis which are known as 'hathnakhun' bidis, there shall be an increase of 12 naye Paise per 1,000 bidis in the rates mentioned above in all the areas.
3. It shall be within the discretion of the employer to decide which are "chhat" bidis or bad bidis, up to 5 per cent of the bidis Prepared by the employee. If the employer decides that any bidis are 'chhat' or bad, the 'chhat' or bad up to 5 per cent shall be destroyed forthwith by the employee and whatever tobacco is recovered from them shall be retained by the employer. If, however, the employer wants to retain these 'chhat' or bad bidis, he shall pay full wages for the same to the employee.
4. If 'chhat' or bad bidis are more than 5 per cent but less than 10 per cent, and if there is any dispute between the employer and the employee as to whether the 'chhat' or bad bidis is done properly or not, equal number of representatives of the employer and the employees shall inspect the 'chhat' is done properly or not. If there is any difference of opinion among the representatives of the two sides, the majority opinion shall prevail. If the opinion is equally divided and the employer wants to retain the 'chhat' bidis, he shall pay wages for 'chhat' bidis between 5 per cent, and 10 per cent at half the rates fixed above. If the employer does to want to retain these bidis, the employee shall destroy them forthwith.
5. The employer shall nominate his representatives and the employees shall elect their representatives.
6. In the case of 'chhat' above 10 per cent, the employer shall be entitled to full wages. It shall, however, be open to the employer to take suitable action against the employee if the 'chhat' is more than 10 per cent, for 6 continuous working days in a calendar month.
7. The 'chhat' shall be made once in a day only, at any premises within a distance of not more than 2 miles from the premises where bidis are manufactured.
Explanation. - For the purpose of this schedule the expression 'employer' includes his thekadar, contractor or agent as the case may be.
(By order and in the name of the Governor of Bombay) (Sd.) B. B. BRAHMABHATT, Deputy Secretary Government."
150. This notification was challenged on various grounds. Only two out of them are material for purposes of this reference. They are :
(i) Clauses 1 to 7 of the schedule of he notification are bad as they are ultra vires of the Minimum Wages Act.
(ii) In the alternative, Cls. 1 to 7 are bad as they infringe on the rights conferred on the bidi manufacturers under Art. 19(1)(g) of the Constitution.
151. Mr. Justice Mudholkar held that the legislature in framing the Minimum Wages Act clearly declared its policy that whatever the contract between the parties may be as to the rates of wages payable to persons engaged in a schedule industry, the State Government will have the power to alter those rights and thus interfere with the contract between the parties. In order to make the exercise of this power effective it will have to be said that the State Government has also the right to fix the basis upon which the wages should be paid. If such power could not be implied in favour of the State Government, the effective exercise of the power of fixing minimum wages would be rendered impossible. And in this view of the matter he held that the impugned clauses of the schedule of the notification were intra vires of the Act, they being provisions for fixing basis on which the wages are fixed. He also further held that these clause did nit infringe the rights conferred on the bidi manufacturers under Art. 19(1)(g) of the Constitution of India. He, therefore, held that the petition should be dismissed.
152. Mr. Justice Kotval held Cls. 1 and 2 were intra vires of the Act and were not open to challenge. He, however, held that the Act does not authorize the Government to interfere with the contract save and except fixing the rate of minimum wages. Clauses 3 to 7 inevitably and directly affect the existing terms and conditions of the work and the right of the bidi manufacturers to reject bidis of bad quality and workmanship or to pay for those bidis according to the quality of the work. He further held that ample provisions are made in Ss. 20 and 21 of the Minimum Wages Act and other laws for the implementation of the rates of wages fixed. The State Government, therefore, was not competent to constitute a domestic tribunal to decide the dispute between the employer and the employee as is done in Cls. 4 and 5 of the schedule of the notification. He also held that Sub-section 2(b)(iv) of S. 3 of the Act makes express provision regarding the manner of calculating wages and limits it only in two cases, namely, where such rates are fixed by the day or by the month. It, therefore, necessarily follows that such a power was not intended to be conferred on the State Government in fixing "minimum piece-rate." And in this view of the matter, in the opinion of Mr. Justice Kotval, implied powers to make provisions as are made in Cls. 3 to 7 of the schedule of the notification cannot be conceded in favour of the State Government. He, therefore, held the Cls. 3 to 7 of the schedule of the notification are ultra vires of the Act. On the second question, namely, the notification being bad as infringing on the rights conferred on the bidi manufacturer under Art. 19(1)(g) of the Constitution, he has expressed no opinion.
153. Thus, the difference of opinion between Mr. Justice Mudholkar and Mr. Justice Kotval relates to vires of Cls. 3 to 7 of the schedule of the notification. According to Mr. Justice Mudholkar, the State Government had implied powers to make provisions as are made in Cls. 3 to 7, while, according to Mr. Justice Kotval such implied powers cannot be conceded in favour of the Government.
154. Mr. M. N. Phadke, learned counsel appearing for the bidi manufacturers in Special Civil Application No. 205 of 1958, and Mr. Q. Qazi, learned counsel appearing for the bidi manufacturers in Special Civil Application No. 214 of 1958, attacked the vires of Cls. 3 to 7 of the schedule of the notification generally on the reasoning adopted by Mr. Justice Kotval in his pinion, while Mr. N. L. Abhyankar, Special Government Pleader appearing for the State, contended that Cls. 3 to 7 of the notification are intra vires of the Act generally on the reasoning of Mr. Justice Mudholkar. Mr. Phadke contends that under the contract which the bidi manufacturers had with their employees the bidi manufacturers had an absolute right of rejecting bidis which were found to be below the requisite standard without making any payment to the employees for such bidis; the employers had further a right to retain these bidis which are found to be below the requisite standard and sell them in market. He further contends that the employers have a right to do the business at a place of their own choice; as a result of Cls. 3 to 7 of the schedule of the notification these rights of the employers have been seriously interfered with; the employers are now required to pay for 90 per cent of the work of the employees irrespective of the qualifies of bidi; as regards the remaining 10 per cent, even if the bidis are found to be below the requisite standard, the employers are required to make either full payment or half-payment for the bidis retained; further the employers cannot do their business of inspecting the bidis at their own places of business but will have to inspect the bidis at places within two miles of the places where the employees work; this serious interference with the contractual and other rights of the employers by the State Government cannot be justified either under the express powers conferred on the Government by the statute or under the implied powers.
155. On behalf of the State Government, Cls. 3 to 7 are justified on the ground that the State Government had implied power to make provisions which the State Government has made under Cls. 3 to 7 of the schedule of the notification.
156. It is, therefore, necessary to see the scope and ambit of the doctrine of implied powers. The question has been elaborately dealt with by both Mr. Justice Mudholkar and Mr. Justice Kotval and the authorities relating to the question have also been fully discussed by them in their opinions. I do, not, therefore, feel that any useful purpose will be served by going over the same grounds again. As regards the principles, I do not find that there is any material difference between both my learned Brothers. Those principles have been summarized by Mr. Justice Kotval in Para. 49 of his opinion, and those principles, in the words of Kotval J., are :
"The doctrine (the doctrine of implied powers) can be applied only where the following conditions are fulfilled :-
(1) There must be a duty imposed or power prescribed.
(2) On a reasonable construction of the statute there must be an impossibility in the exercise or fulfilment of that power, resulting in making its object or purpose nugatory.
(3) The impossibility must be such that it is not an impossibility in an individual case, because then the law cannot permit powers by implication but the impersonality must be of a general nature so that the purpose and object of the duty or power is rendered impossible of achievement in every case. It is only then that powers by implication can be inferred.
(4) The implication cannot contradict the expressed intent which must always prevail, and where it becomes necessary to read an implication into an enactment, the scope of the implication must be limited only to what is reasonably necessary and no more."
157. I am in respectful agreement with my learned brother Mr. Justice Kotval with the aforesaid summary of the doctrine of implied powers given by him. The question is as regards its application tot he facts and circumstances of the present case. For that purpose it is first necessary to consider the extent and scope of the express powers conferred on the State Government under the Act. The Minimum Wages Act is enacted to provide for fixation of minimum rates of wages in certain employments mentioned in the schedule of the Act. It is well known that in certain employments the labour is exploited and an undue advantage is taken of them by the employers. The labour, being not organized, is incapable of fighting against their exploitation by the employers, and to secure to them a minimum wage, the Minimum Wages Act was enacted. The concept of the minimum wage is referred to by their lordships of the Supreme Court in Express Newspaper, Ltd. v. Union of India in Para. 53 of their lordships' judgment in the following words :
"The concept of the minimum wage : The International Convention of 1928 prescribes the setting up of minimum wage-fixing machinery in industries in which 'no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low ...."
"As a rule, though the living wage is the target, it has to be tempered, even in advanced countries, by other considerations, particularly the general level of wages in other industries and the capacity of industry to pay. This view has been accepted by the Bombay Textile Labour Inquiry Committee which say that "the living wage basis affords an absolute external standard for the determination of the minimum 'and that 'where a living wage criterion has been used in the giving of an award or the fixing of a wage, the decision has always been tempered by other considerations of a practical character'."
"In India, however, the level of the national income is so low at present that it is generally accepted that the country cannot afford to prescribe by law a minimum wage which would correspond to the concept of the living wage as described in the preceding paragraphs. What then should be the level of minimum wage which can be sustained by the present stage of the country's economy ? Most employers and some Provincial Governments consider that the minimum wage can at present be only a bare subsistence wage. In fact, even one important all-India organization of employees has suggested that 'a minimum wage is tat wage which is sufficient to cover the bare physical needs of a worker and his family.' Many others, however ... consider that a minimum wage should also provide for some other essential requirements such as a minimum of education, medical facilities and other amenities. We consider that a minimum wage must provide not merely for the bare sustenance of life but, for the preservation of the efficiency of the worker. For this purpose, the minimum wages must also provide for some measure of education, medical requirements, and amenities."
158. Turning to the provisions of the Act, S. 3(1)(a) empowers the appropriate Government (here the State Government) to fix the minimum rates of wages payable to the employees employed in an employment specified in part I and part II of the schedule of the Act in the manner hereinafter provided in the Act. Sub-section (2) provides that minimum rate of wages may be fixed for time-work called "a minimum time-rate" or piece-work called "a minimum piece-rate" or a minimum rate of remuneration to apply in cases of employees employed on piece-work for the purpose of securing to such employees a minimum rate of wages on a time-work" basis called "a guarantee time-rate" or overtime rate in respect of overtime work done by the employees. Sub-section (3) authorizes the Government to fix different minimum rates of wages for different scheduled employments, for different classes of work in the same schedule employments, for adults, adolescents, children and apprentices, for different localities. Provisions of S. 4 of the Act indicate that the minimum rate of wages fixed or revised under S. 3 may, at its best, consist of a basic rate of wages, a special allowance called "cost of living allowance," i.e., an allowance at a rate to be adjusted at such intervals and in such manner as the appropriate Government may direct to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers and cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorized.
159. Looking to the component parts of the minimum rate of wages mentioned in S. 4 of the Act it appears that the minimum rate of wage which is fixed under the Act is or the nature of securing to the employees a bare subsistence wage. There is hardly any scope in it to provide for some measure of education, medical requirements and amenities to the employees. It is next to be considered in relation to what work the minimum rates of wages are to be fixed. This brings me to the definition of "wages" contained in Clause (h) of S. 2 of the Act. That definition shows that a wage means a remuneration payable to the employee in respect of his employment or in respect of the work done by him in the employment when the terms of the contract of employment, express or implied, are fulfilled by him.
160. Considering the provisions of Ss. 2(h), 3 and 4 of the Act together, in my opinion, the Act casts a duty on appropriate Government to fix a minimum rate of wage (which, as already stated, is only a bare subsistence wage) which should be paid to the employee in respect of his employment or in respect of the work done by him in such employment on his fulfilment of the terms of the contract of employment, express or implied. The power thus conferred on the appropriate Government must necessarily include the power to interfere with the terms of the contract between the employer and the employee so far as they relate to the fixation of the wage rate. It also must necessarily follow that the appropriate Government would have powers by necessary implication to do all acts necessary to so fix the minimum rate of wage as would effectively compensate or remunerate the employee in respect of his employment or in respect of the work done by such employee in his employment. In this connexion, the observations from the judgment of the Supreme Court in Bijay Cotton Mills, Ltd. v. State of Ajmer [1955 - I L.L.J. 129] may usefully be cited :
"It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical subsistence but also the maintenance of health and decency, is conducive to the general interest of the public. This is one of the Directive Principles of State Policy embodied in Art. 43 of out Constitution. It is well know that in 1928 there was a Minimum Wages Fixing Machinery Convention held at Geneva and the resolutions passed in the convention were embodied in the International Labour Code. The Minimum Wages Act is said to have been passed with a view to give effect to to these resolutions [vide South India Estate Labour Relations Organization v. State of Madras [1954 - I L.L.J. 8]. If the labourers are to be secured in the enjoyment of minimum wages and they are to be protected against exploitation by their employers, it is absolutely necessary that restraints should be imposed upon their freedom of contracts and such restrictions cannot in any sense be said to be unreasonable. On the other hand, the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers, on account of their poverty and helplessness, are willing to work on lesser wages."
161. Now, the petitioners have not in their petition thrown any light on the circumstances prevailing in the industry at the time the notification was issued. The State Government, however, in its return, has mentioned those circumstances.
162. Before I proceed to those details it will be convenient to give in brief the general idea of the industry. The bidi manufacturers supply tendu leaves, tobacco and threads to the employee. He then rolls the bidi by putting the tobacco in the tendu leave. After it is rolled it if tied by the thread. The bidi manufacturers in some case maintain factories where the labour goes every morning for doing the work. In the evening bidis rolled by the employees are inspected by the manufacturers. Bidis which are found to be sub-standard are rejected by the manufacturers and the labour is only paid for the accepted bidis. While in other cases the labour periodically goes to the place of the manufacturer, collects tendu leaves, tobacco and threads and then goes back to their respective places and rolls the bidis at their home. It appears that the work is not done by that man alone but the entire family members help him in rolling the bidis. It also appears that periodically the bidi manufacturer's men called thekedars or contractors go to the places of the workers, inspect the bidis, reject such bidis as they consider to be below the standard and thereafter collect both the rejected as well as accepted bidis and carry them to the place of business of the bidi manufacturers. There the second inspection is held by the bidi manufacturers themselves. They only inspect those bidis which, according to the contractors or thekedars, are of requisite standard. The bidi manufacturers also reject certain bidis out of those bidis which, according to them, are not up to the requisite standard. The labour is only paid for the bidis which ultimately are accepted by the bidi manufacturers. The latter part of operation, i.e., where bidis are rolled by the labour at their respective places, is called "gharkhata." It is not in dispute that a large percentage of work of rolling bidis is done in "gharkhata" and not in the factory. It is pertinent to note that though in both these kinds of operations certain number of bidis rolled by the labourers are rejected by the bidi manufacturer, yet they are not returned to the labour but are retained by the manufacturers and are also sold by them in the market though no payment is made to the labour in respect of these rejected bidis. This practice of rejecting bidis is popularly known as practice of "chhat." It is also not in dispute that though the former Madhya Pradesh Government had fixed minimum rates of wages under the Act, no provision was made thereunder to secure payment of remuneration to the labour in respect of the bidis rejected under the practice of "chhat."
163. Turning now to the material statements made by the State Government in its return, they are as follows :
"Paragraph 4(a) of the petition. - ... In the bidi industry in Vidharbha region and especially in Bhandara district and factories in Gondia tahsil, there is a recognized practice of making payment on the basis of bidis accepted by employer as coming up to a certain standard of skill. The employers have insisted on their right in principle of rejecting the subnormal or substandard bidis prepared by the employees. The complaint of the employees is that the employers reject an unreasonable proportion of bidis dubbing them as of substandard quality or subnormal quality without paying anything for their labour spent in rolling such rejected bids. Such bidis are retained without paying for labour to the employees ad they are sold by the employers in the market. Thus it is complained that while the employers get profit out of the rejected bidis sold by them in market, the employees are deprived of any labour charges in respect of these bidis. It was also complained that the bidis are subjected to 'chhat' once by the thekedar or the contractor and again by the employer for whom the thekedar works. Thus an employee suffers considerably and does not get the benefit of even the minimum wages fixed under the Act on account of 'chhat' system ...
(F) In view of the nature of work done by the employees in making bidis and the mode in which the payments have been made in Vidharbha region, and the reduction of bidis to which the employees are subjected, it was necessary to fix minimum wages after making due provision regarding the problem of rejection of bidis. In some cases it was found that as much as 20 per cent of the labour of the workers in preparing bidis is not paid for under one guise or the other by the employer. It was further found that the decision regarding the number of bidis to be rejected ('chhat') was taken arbitrarily by the employer without knowledge of the employee and in his absence."
164. These averments made by the State Government in its return have not been controverted by the petitioners. The vires of the impugned clauses of the schedule of the notification therefore, in my view, will have to be judged in the light of the aforesaid facts stated in the return. The problem which the State Government had to meet was that the bidi manufacturers were in their own discretion rejecting certain number of bidis rolled by the workers on the ground that they were of substandard quality or of subnormal quality. These rejected bidis were retained by the bidi manufacturers and were ultimately sold by them in the market, and yet no payment was made by the manufacturers to the workers in respect of the so-called rejected bidis. These facts clearly show that the conditions prevailing in the industry was that labour expended by the employees in the bidi industry in rolling the bidis, which ultimately were rejected by the bidi manufacturers, was not being paid for by the employers even though the product of their (employees') labour was retained and utilized by the employers to their benefit and it is to meet this problem that the State Government claims that the impugned notification was issued. As already stated, in my opinion, the Act casts a duty on the State Government to fix minimum rates of wages in such a manner that the employees are compensated or remunerated for the work done by them, notwithstanding any contract to the contrary between the employer and the employee in that respect.
165. Turning now to the impugned clause, it is next to be seen how far the State Government had acted within the limits of the powers in making the provisions it has made in Cls. 3 to 7.
166. Clauses 3 provides that the employer in his discretion could reject up to 5 per cent of the bidis prepared by his employee without making any payment therefor to his employee, and it would be open to him to destroy them retaining the tobacco contained in those bidis with himself, but if he does not want to does not want to destroy them and keep them with himself, then he has to pay full wages for these bidis to his employee. The provisions made in this clause clearly are for securing payment to the employees in respect of the work done by them when the same is retained by the employer. This clause, therefore, for reasons already stated above, in my opinion, is within the powers of the State Government and cannot be said to be ultra vires of the Act.
167. Clauses 4 provides for two things. Firstly, it provides that if the employer wants to reject bidis which exceed the aforesaid 5 per cent limit but are less than 10 per cent, then he has two options. The option is that he may decide to retain those bidis. In that case he is required to pay half of the minimum rates fixed by the State Government. The other option given to him is that he may choose not to retain those bidis. In that event those bidis are to be destroyed by the employee. In the second instance, this clause provides for the settlement of disputes between the employer and the employee as regards rejection of bidis between 5 and 10 per cent. If there is any dispute about it between the employer and the employees as regards the quality of work, then the question is to be decided by a joint body of the representatives, in equal number, of the employer and the employees. The decision of the majority is to be final and binding on both the parties. In the event the decision of this body being equally divided, then the employer is permitted to exercise either of the two options referred to above.
168. The provisions of Clause 4 are vehemently attacked by Mr. Phadke. He contends that the State Government had no jurisdiction under the Act to constitute a tribunal; if there is a dispute as regards the quality of work the employees must go to the authority appointed under S. 20 of the Act. He further contends that the provisions of S. 20 itself shows that the intention of the legislature was that all the disputes between the employer and the employees relating to the payment of wages have to be decided by the authority appointed under the Act; it necessarily follows that the legislature never intended to confer on the State Government powers to constitute any other authority to decide the disputes between the employer and the employee; the constitution of such a body under Clause 4 of the schedule of the notification cannot, therefore, be justified under the doctrine of implied powers. I find it difficult to accept this contention. In my view, the disputes which are intended to be decided by the domestic tribunal constituted under Clause 4 of the schedule of the notification do not fall within the purview of the provisions of S. 20 of the Act, as they are disputes relating to the ascertainment and fixation of wages, while the jurisdiction which is conferred on the authority constituted under S. 20 of the Act is to decide four kinds of disputes which might arise between the employer and the employee subsequent to fixation of minimum wage payable to the employee. They are : Where the employee claims that (1) he has been paid less than the fixed minimum rate of wage, (2) he has not been paid remuneration for the day or days of rest, (3) he has not been paid for the work done by him on the days of rest, and (4) he has not been paid for the overtime work done by him at the overtime rate [Sub-section (1) of S. 20 of the Act].
169. Sub-section (2) of S. 20 provides the period of limitation within which an application in respect of any one or more of the aforesaid four claims could be made and the person by whom such claims could be made. Sub-section (3) provides the procedure to be followed and the powers of the powers of the authority in dealing with such applications. Clause (1) of Sub-section (3) deals with the claim relating to a payment of less than the fixed minimum rate of wage. Clause (ii) relates to the other three types of claims mentioned in Sub-section (1). In my view, the words "in any other case" in Clause (ii) relate only to the three types of claims other than the claims arising out of a payment of less than the fixed minimum rate of wage, mentioned in Sub-section (1) of S. 20. These words are not used with an intention to confer jurisdiction on the authority constituted under S. 20 to deal with all and every kind of wage dispute arising between the employer and the employee. Thus, in my view, the provisions of S. 20 being limited in their scope, it cannot be inferred from those provisions that the legislative intendment was that the disputes between the employer and the employee relating to the ascertainment and fixation of minimum rate of wage payable to the employee should be decided by the authority constituted under S. 20 of the Act. The legislature has enjoined a duty and conferred a power on the appropriate Government to fix minimum rates of wages, and in the absence of any provision in the Act for a decision of disputes between the employer and the employee relating to the ascertainment and fixation of minimum rate of wage payable to an employee, by necessary implication it has to be assumed that the legislature has left it to the State Government to constitute a tribunal for the said purpose wherever found necessary. The contention raised by Mr. Phadke, therefore, fails.
170. The other ground of attack by Mr. Phadke on this clause, namely, Clause 4 of the schedule of the notification, was that this clause provides that where the employer decides not to accept the bidis, the employee has been given a right to destroy these bidis, the employer is not allowed to retain even the tobacco contained in the bidis. This, according to Mr. Phadke, is a very unjust provision and would work to the prejudice of the employer. On account of the bad workmanship of the employee the employer is not accepting the work. There is no reason why he should be made to lose his property also, i.e., the tobacco contained in the bidis. In my view, the construction which is sought to be put by Mr. Phadke on the sentence "If the employer does not want to retain these bidis, the employee shall destroy them forthwith" in Clause 4 of the schedule of the notification is not warranted. This sentence has to be read in its context. What is destroying the bidis has been explained in Clause 3 of the schedule of the notification and it means that the bidi qua bidi is to be destroyed, but the tobacco contents thereof are to be retained by the employer, and it is in this sense that the aforesaid sentence in Clause 4 has to be understood. It is difficult to assume that the intendment of the State Government was that both the bidis qua bidis as well as the tobacco contents thereof are to be destroyed by the employee. The second contention of Mr. Phadke also, therefore fails. Thus the provisions of Clause 4 relate only to the question of ascertainment and fixation of minimum rate of wage payable of the employee and are, therefor, not ultra vires of the Act or the powers of the State Government.
171. Clause 5 of the schedule of the notification only deals with the constitution of the tribunal for the purpose of deciding the disputes between the employer and the employee referred to in Clause 4. For the same reasons as are given for upholding the validity of Clause 4, this clause also is upheld.
172. Clause 6 of the schedule of the notification is also in two parts. The first part of the clause debars the employers from rejecting bidis on the ground of bad workmanship beyond 10 per cent of the total work done by the employee. In other words; this clause secures payment at the full rate fixed by the State Government in respect of 90 per cent of work. These provisions and the provisions of Cls. 3 and 4 are also very vehemently attacked by Mr. Phadke on the ground of interference with the right of the employer under the contract to reject the bidis which are, in his pinion, of bad workmanship. He contends that the State Government cannot force the employer to pay to the employee for the bad work at the rate fixed for good work done by the employee. He says that the contract between the employer and the employee was that the employer could, in his discretion reject bidis, which, according to him, were of bad workmanship. He has a further right to retain these bidis without making any payment to the employee. This right under the contract has been seriously interfered with by the aforesaid provisions contained in Cls. 3, 4 and 6 of the schedule of the notification. Under the Act the State Government could fix the minimum rate of wages. It has no right to interfere with the terms of the contract and force the employer to pay at the full rate for bad workmanship. Now, in my view, it would not be correct to assume that the minimum rate of wage fixed by the appropriate Government is necessarily a rate fixed for any particular standard of work done by the employee. The rate fixed is the minimum rate of wage and that, as already stated by me, is a bare subsistence wage, which, the Government considers should be paid to the employee for the work done by him for the employer during the course of the employment irrespective of whatever the contract between the employer and the employee was. And this is all what the State Government has done in the instant case. Now here what is claimed is that the employer has a contractual right not to pay for the bidis rejected by him, and yet retain them and sell them. Assuming for a moment that there was such a term in the contract between the employer and the employee, the State Government had full powers under the Act to interfere with that term of the contract and fix a minimum rate of wage which would include payment to the employee for the alleged substandard work done by him during the course of his employment, when it is found that the substandard bidis were retained by the employer and sold by him in the market to his benefit. What was happening in the industry really was that for a part of the work done by the employee during the course of his employment, the employer was making no payment to employee, yet utilizing the fruits of his labour to his (employer's) advantage. This undoubtedly was nothing but exploitation of labour, and the primary objective of the Act is to grant protection to the labour against exploitation and secure to them payment in respect of the work done by them. Further, I find it difficult to accept the contention of Mr. Phadke that there really was such a contract. No doubt the practice prevailed that no payment was made to the labour for the rejected bidis, but it is difficult to assume that the labour had voluntarily agreed that no payment need be made to them for such rejected bidis even thought the employer was retaining and utilizing those bidis. It is difficult to assume that the labour intended to deliver to the employer these bidis gratuitously allowing the employer to enjoy the benefits thereof. In the circumstances of this case, in my opinion, the employers were clearly liable under S. 70 of the Contract Act to compensate their employee, for the labour expended by them in rolling the alleged substandard bidis. What the State Government has done in framing Cls. 3 to 4 and the first part of Clause 6 is to fix the amount which, in its opinion, should be paid to the employee in the bidi industry for the work done by him. The following sentence from the observations of their lordships of the Supreme Court in Bijay Cotton Mills, Ltd. v. State of Ajmer [1955 - I L.L.J. 129], already referred to, is a complete answer to the argument raised :
"... On the other hand, the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even thought the labourers, on account of their poverty and helplessness, are willing to work on lesser wages."
173. Thus, even assuming that the labour had voluntarily agreed to deliver gratuitously to the employer bidis rejected by him on the ground of bad workmanship, the State Government has full power under the Act to make the employer pay for that work. The aforesaid contention of Mr. Phadke, therefore, in my opinion, fails.
174. The other attack of Mr. Phadke on the provisions contained in Cls. 3, 4, 5, and the first part of Clause 6 is that what the State Government has provided in these clauses is the manner of calculating the wages. Under Sub-clause (iv) of Clause (b) of Sub-section (3) of S. 3, the appropriate Government is authorized to indicate the manner of calculation only when the minimum rate of wage is fixed by the day or by the month. According to Mr. Phadke, the necessary inference is that the appropriate Government has no power to indicate the manner of calculating the wage in other cases. I find it difficult to accept this contention of Mr. Phadke. In my opinion, Cls. 3, 4, 5 and the first part of Clause 6 deal with the manner in which the minimum rate of wage payable to a particular employee is to be ascertained and fixed in respect of the particular work done by him. Section 3(3)(b)(iv) does not relate to a fixation of wage. What it does is to direct the appropriate Government to indicate the manner of calculation for purposes of conversion of the rate fixed by it per month into a rate per day and vice versa. This provision appears to have been made to meet the situations that are likely or bound to arise during the course of business. For example, minimum rate of wage is fixed per month; the employee remains absent for a certain number of days in a month : deductions are to be made from the wages for the period of absence; on what basis the deductions are to be made ? This argument of Mr. Phadke, in my view, therefore, fails.
175. Mr. Phadke also contends that the provisions contained in Cls. 3, 4, 5 and first part of Clause 6 cannot be justified on the ground of implied powers, because it has not been shown by the State Government that it was impossible for it to fix the minimum rate of wage in any other manner. He says that if really the State Government had wanted that the employee should be paid for the rejected bidis, then it had ample powers to do so by fixing a guaranteed time-rate under S. 3(2)(c) of the Act. The State Government could also have achieved its objective fixing one rate for the accepted bidis and another rate for the rejected bidis. It has not done so. What the State Government has done is to compel the employer to pay to his employee at least for 90 per cent of his work irrespective of the quality produced by him. It is also not possible for me to accept this contention. Clause (c) of S. 3(2) reads as follows :-
"The appropriate Government may fix a minimum rate of remuneration to apply in the case of employees employed on piece-work for the purpose of security to such employees a minimum rate wage on a time-work basis (hereinafter referred to as a guaranteed time-rate)."
176. In my view, in the instant case it was not possible for the State Government to follow this course. As already stated, a majority of the work done by the employees is not done in any factory for any given number of hours. The work is chiefly done by the employees in their respective houses during their leisure time. May be that the State Government could have fixed a guaranteed time-rate in respect of the employees who were working in the factory, but the percentage of work done in the factory being practically negligible, the problem facing the State Government could not have been solved by taking resort to the provisions of S. 3(2)(c) of the Act. Mr. Phadke next suggests that though the employees working in their respective homes were not working for any fixed hours, Government could have fixed a guaranteed time-rate even for them by laying down a scale, say for example, manufacturing 500 bidis would be equal to six hours' work or eight hours' work. Now, again that would not be a practical solution. Some workers may take five hours for rolling 500 bidis. Others may take eight hours for doing it. Some workers may do it within seven hours. Adopting such a course, therefore, would not have been a fair solution of the problem. In these circumstances, in my view, it does not appear that the alternative courses suggested by Mr. Phadke were open for the State Government to effectively secure to the employees remuneration for the work done by them which the employer had been retaining and utilizing to his advantage.
177. As regards the other part of the argument, I have already stated that the wage fixed by the State Government under the notification of 11 June, 1958, is not a wage fixed for any particular standard of work. It is a minimum rate of wage, and that being so, it cannot be said that the State Government is compelling the employers to pay to their labour of the bad quality of work one by them at the rate fixed for a good quality of work done by them. This contention raised by Mr. Phadke also, in my opinion, therefore, fails.
178. The second part of Clause 6 reads as follows :-
"It shall, however, be open to the employer to take suitable action against the employee if the chhat is more than 10 per cent, for 6 continuous working days in calendar month."
179. It is really difficult to understand what is meant by the words "suitable action." I asked Mr. Abhyankar, leaned Special Government Pleader, who appears for the State, as to what is meant by the words "suitable action" and what powers really are intended to be conferred on the employer to take action against the employee. Mr. Abhyankar pointed out to me that the "suitable action" means the action which the employer can take against the employee under Clause (h) of the standing order framed under S. 30 of the Industrial Disputes Settlement Act of 1947 for the bidi factories. He has placed on record a copy of that standing order and has referred me to Clause (h) thereof relating to the "acts and omissions constituting misconduct." The clause reads :
"Gross neglect of work causing loss and damage to the employer."
180. Mr. Abhyankar says that the "suitable action" referred to in the second part of Clause 6 is the action which the employer can take against his employee for gross neglect of work causing loss and damage to the employer. Now, when, power had already been conferred under the aforesaid Clause (h) on the employer to take action against the employee for manufacturing bidis of bad workmanship which caused damage to him, then where was the necessity of making provision therefor in second part of Clause 6 ? Further in Clause (h) there are no limitations like those contained in second part of Clause 6. To prove gross neglect of work causing loss to the employer under Clause (h), it is not necessary for him to show that for six continuous working days in a week the substandard bidis manufactured by the employee exceeded 10 per cent. For example, he may show that in a month the employee has manufactured substandard bidis for, say, 15 days resulting in a loss to him. Those 15 days need not necessarily be continuous. There need be no period of six continuous days in those 15 days. The provisions of the second part of Clause 6, therefore, in my view, undoubtedly interfere with the rights of the employer conferred on him under the standing order. In fact the second part of Clause 6 results in amending Clause (h) to a great extent and to the prejudice of the employers. In my opinion, it is not open to the State Government to do so purporting to act under the Minimum Wages Act. It amount to interference with the terms of the contract other than the terms relating to the fixation of wages. The aforesaid second part of Clause 6, is, therefore, liable to be struck down as ultra vires of the powers of the State Government under the Act.
181. The seventh clause provides that the chhat, i.e., the rejection of bidis on the ground of being of substandard or subnormal quality, shall be made once in a day only, at any premises within a distance of not more than two miles from the premises where bidis are manufactured. Mr. Phadke contends that this clause interferes with the rights of the bidi manufacturers under the contract whereunder they had a right to inspect and reject the bidis at their places of business. In my view, this contention has a considerable force. As already stated, the rolling of bidis by the employees in certain cases is carried on in the factories of the bidi manufacturers, but that percentage is very low. In other cases, bidis are manufactured by the employees at their respective places which is known as "gharkhata." Where the bidis are manufactured in the factory itself, the chhat or the rejection takes place only once at the end of the day in the factory itself. This clause hardly affects such manufacturers. But in the other cases, i.e., in gharkhata, the chhat is performed twice, once by the contractors or thekedars at the place of the employee and the second time by the bidi manufacturers at their respective places of business. The first chhat, i.e., chhat by contractors or thekedars being at the houses of the employees, themselves, it is done in the presence of the employees themselves, but the second chhat being at the place of business of the manufacturer, which usually is at a far away distance from the houses of the employees, usually takes place in the absence of the employees, and there is a good deal of agitation about it by the employees. The employees claim that the chhat must be done in their presence. Clause 7 is obviously intended to redress this grievance. Undoubtedly the grievance of the employees appears to be real. In fairness to the employees the chhat should take place in their presence, but the question that arises is whether the State Government has powers, either express or implied, to redress such grievance under the provisions of the Minimum Wages Act. As already stated, in my view, the powers conferred on the appropriate Government under the Act to interfere with the terms of the contract between the employer and the employee are limited. Those powers are to interfere with the terms of the contract so far as they relate to fixation of wage for the work done in the employment. It is, therefore, not open to the State Government in fixing minimum rate of wages to interfere with the other terms of contract between the employer and employee. In framing Clause 7 the State Government has interfered with the contract between the parties as regards the place where the inspection of the work of the employee is to be made by the manufacturer. It has no direct bearing on the fixation of wages. In my opinion, this clause, therefore, is ultra vires of the powers of the State Government and is, therefore, liable to be struck down.
182. At the foot of the notification, an explanation is given. It is in the following terms :
"Explanation. - For the purpose of this schedule the expression 'employer' includes his thekedar, contractor or agent as the case may be."
183. Mr. Phadke contends that S. 2(e) of the Act itself defines "employer, " and, therefore it is not open to the State Government to define that expression differently. Mr. Abhyankar, on the other hand, says that the definition of "employer" as given in the explanation is the same as that given in S. 2(e) of the Act and is, therefore, not bad. I find it difficult to accept the contention of Mr. Abhyankar. It really the definition of "employer" given in the explanation is the same as given in S. 2(e) of the Act, it is not necessary to incorporate it in the schedule. Further, reading the explanation and the definition of "employer" contained in S. 2(e) of the Act together, it appears that the definition of "employer" as given in the explanation is wider in terms than the definition of "employer" contained in S. 2(e) of the Act. It is intended to include thekedars, contractors and agents of the bidi manufacturers in the term "employer," irrespective of the fact as to whether such thekedar, contractor, or agent has, in fact, employed the labour or not; while the definition contained in Clause (e) of S. 2 of the Act shows that the employer is the person who employs labour either directly or though another person whether on behalf of himself or on behalf of any other person. The expression "employer" having been defined in the Act, it is not open to the State Government to enlarge its scope in the absence of any provision to that effect in the Act. The explanation contained in the schedule, therefore, is also liable to be struck down.
184. For reasons stated above, in my opinion, Cls. 3, 4, 5 and first part of Clause 6 are good, while the latter part of Clause 6, Clause 7 and the explanation are bad and are liable to be struck down. The question then that arises is whether the parts which are liable to be struck down are severable from the parts which are good. The tests that have to be applied in deciding such question are given by their lordships of the Supreme Court in R.M.D.C. v. Union of India [1947 A.I.R. S.C. 628, 636]. Applying those tests to the present notification, in my view, the parts thereof, which are held to be good by me, are clearly severable from the parts held to be bad by me. Clauses held to be good by me relate to the fixation of wages, while clauses held to be bad by me have no direct bearing on the question of fixation of wage but relate to matters other than the fixation of wage. They are intended, if I may say so, to confer additional benefits on the employees. It cannot be said that the State Government had no intention of securing to the employees payment at the minimum rate of wage fixed by it in the event it was not in a position to confer the said additional benefits on the employees. In my view, therefore, my conclusions in holding the latter part of Clause 6, Clause 7 and the explanation ultra vires of the Act or the power of the State Government under the Act cannot have the effect of striking down the entire notification.
185. It is next necessary to deal with the two decisions referred to by Mr. Phadke in the course of his argument. They are : Thomas v. Travancore-Cochin State [1957 - II L.L.J. 53] and P. C. Chakravarty v. Manager, D. T. Estate [1958 A.I.R. Assam 12]. In Thomas v. Travancore-Cochin State (supra) it is held that the provisions of the Minimum Wages Act do not appear to confer any power on the appropriate Government to insist that an employer employing workers on time-rates should pay them on piece-rates. The principles enunciated in this case has hardly application to the facts of the present case. I have already stated that under the Minimum Wages Act, the appropriate Government has powers to interfere with the contract between the employer and the employee only to the extent of its term relating to fixation of wages. It has no power to interfere with other terms. In insisting that the employer employing workers on time-rates should pay them on piece-rates, the State Government of Travancore-Cochin was interfering with the other terms of the contract between the employer and the employee.
186. In P. C. Chakravarty v. Manager, D. T. Estate (supra) it appears that on 11 March 1952, the State Government of Assam issued a notification in exercise of powers conferred by S. 3 read with Sub-section (2) of S. 5 of the Minimum Wages Act and fixed the minimum wages and dearness allowance of various classes of employees in the tea plantation. The schedule attached to the notification divided the workers into two classes - unskilled labour and the staff and artisans. On 12 May, 1952, another notification was issued by the Government of Assam in modification of the earlier notification of 11 March, 1952, by which the word "artisan" has been defined as meaning fitter, engine- drivers, masons, electricians, blacksmiths, carpenters, etc. By notification of 24 September, 1952, the Government of Assam appointed the Principal of his Royal Highness the Prince of Wales Technical School, Jorhat, to be the authority to conduct necessary trade tests to decide doubtful case arising out of the definition of the word "artisan" as defined in the earlier notification dated 12 May, 1952. By another notification dated 12 December, 1953, a committee was constituted for purposes of laying down the qualifications of artisans and providing the machinery, regional or otherwise, to undertake the trade tests. The petitioners in that case made an application under S. 20 claiming that they were entitled to get minimum rates of wages fixed for the artisan. The Deputy Commissioner of Kachar, who heard the application, held that the application was premature and the petitioners were not entitled to claim the minimum wages and the dearness allowance fixed by the Government under the notification of 11 March, 1952, unless they were either admitted as artisans by the opposite party or they passed a trade test held by the committee set up for the purpose. This order of the Deputy Commissioner was challenged before the High Court and it was contended that the notifications issued by the Government of Assam subsequent to 11 March, 1952, were bad as the Government had not power to constitute a committee to decide who was artisan within the meaning of the notification and who was not. That power exclusively lay with the authority constituted under S. 20 of the Minimum Wages Act. This contention was upheld by the High Court and the learned Judges held that the authority appointed under the Act had to decide whether the petitioner was or was not entitled to any payment under the notification issued by the Government under S. 5 which had fixed the minimum wages. This power necessarily implies power to determine whether a particular employee falls within the category of artisan as defined under the notification. That power cannot be taken away by the State Government.
187. This decision also, in my view, has no application to the facts of the present case. As already stated the domestic tribunal constituted by the State Government is for purposes of deciding the disputes arising out of ascertainment and fixation of rate of minimum wage payable to the employee for his work and not for purposes of deciding the disputes that arise between the employer and the employee after the minimum wage payable to an employee is ascertained and fixed.
188. This brings me to the last contention raised by Mr. Phadke. He contends that even if it is held that the notification or any part thereof is intra vires of the Act, yet it is bad as it interferes with the fundamental rights conferred on the bidi manufacturers under Art. 19(1)(g) of the Constitution. As already stated, the part of the notification held good by me relates exclusively to the question of fixation of minimum rate of wages and the State Government was acting within its powers conferred on it by the Act either expressly or by necessary implication. Their lordships of the Supreme Court in Bijay Cotton Mills, Ltd. v. State of Ajmer [1955 - I L.L.J. 129] have held that though the provisions of the Act interfere with the freedom of trade or business guaranteed under Art. 19(1)(g) of the Constitution, the restrictions imposed are reasonable and being imposed in the interests of general public are protected in terms of Clause (6) of Art. 19. Their lordships observed :
"... In our opinion, the restrictions, though they interfere to some extent with the freedom of trade or business guaranteed under Art. 19(1)(g) of the Constitution are reasonable and being imposed in the interests of general public are protected by the terms of Clause (6) of Art. 19."
189. It necessarily follows that so long as the State Government acts within the limits of its powers conferred on it under the Act, its action is not open to challenge on the ground that it interferes with the rights conferred on the bidi manufacturers under Art. 19(1)(g) of the Constitution. This contention also, therefore, fails.
190. In the result, in my opinion, Cls. 1, 2, 3, 4, 5 and the first part of Clause 6 of the schedule of the notification are intra vires of the Act while the latter part of Clause 6, Clause 7 ad the explanation are ultra vires of the Act. The case may now be placed before the appropriate Bench for further orders.
191. The matter was then placed before a Bench composed of Kotval and V. S. Desai, JJ., for passing formal orders. Kotval, J., delivered the following judgment.
Kotval, J.
192. We should have thought that after the decisions of the third Judge we would be called upon to pass merely formal order in these petitions, but Mr. M. N. Phadke on behalf of the petitioners has raised several contentions which it become necessary to deal with.
193. His first argument is founded upon the provisions of Clause 36 of the Letters Patent of this Court, and the point he takes is that it was necessary for the Division Bench which referred the matter to a third Judge to have formulated the point or points fro decision by the third Judge, and that in the absence of any such point being formulated, the third Judge had no jurisdiction to give his opinion. In the first place, it seems to us that the argument is founded upon a wrong interpretation of the order, referring the petitions for decision to the third Judge. At the conclusion of the hearing before the Division Bench Mr. Justice Mudholkar and I had announced (Mr. Justice Mudholkar in full and I, only the conclusion) our decision. According to Mr. Justice Mudholkar, all the clause of the impugned notification were valid under the implied powers of Government. In my view, Cls. 3 to 7 of the schedule to the notification were ultra vires of the express and implied powers of Government. Thereupon Mr. Justice Mudholkar passed the following order :-
"In view of the difference of opinion between us, the matter will now have to go before a third Judge to be appointed by the Chief Justice."
194. It seems to us that it is clear upon that order of Mr. Justice Mudholkar that the matters in difference between my learned Brother and myself were referred. It was clear from the opinions delivered by either of us as to what were the points which called for decision by the third Judge. Moreover both parties have clearly understood what the points of difference were and have fully argued them before Mr. Justice Tambe and the result is reflected in the opinion delivered by him. We do not think, with all respect to him, that there is any failure of jurisdiction in the third Judge giving his opinion.
195. The other contention raised by Mr. Phadke is based upon the decision given by Mr. Justice Tambe in Para. 28 of his opinion read with Paras 8, 13, and 15. What Mr. Phadke says is that the only difference of opinion between the Judges of the Division Bench was on the score and applicability of the implied powers of Government. But the decision of Mr. Justice Tambe hinges upon a consideration of the express powers and to that extent that was a point not referred to him and not within his jurisdiction to decide.
196. As was read the opinion of Mr. Justice Tambe, it is impossible to accede to the argument of Mr. Phadke. Mr. Justice Tambe no doubt considered the express powers under the Act. He did so only with a view to ascertain what were the implied powers which could flow from the provisions of the Act. This is clear from Paras. 8 and 10 of his opinion. At no stage has he referred to the express powers directly in considering the validity of the notification; nor he had justified any of its provisions under any express power contained in the Act. The argument is founded upon a misreading of the opinion of Mr. Justice Tambe.
197. The third point raised is as to the decision which Mr. Justice Tambe gave upon the point arising under Art. 19 of the Constitution. It was urged before the Division Bench that the notification was ultra vires under Art. 19(1)(g). On that point it was contended that Mr. Justice Mudholkar decided that the notification was intra vires, but that I had considered it unnecessary to give an opinion and therefore, it was not open to Mr. Justice Tambe to consider that question as there was no difference of opinion on the point.
198. In the first place, it seems to us that if one of the Judges of a Division Bench held the notification intra vires under the article, and the other Judge declined to give an opinion, that itself was a difference of opinion. Secondly, the point of difference between the the Judge of the Division Bench was with regard to the validity to Cls. 3 to 7 of the schedule to the notification and the third Judge had to hear and decide the case on the point as to the validity of the said clauses. In pronouncing his opinion on that point the third Judge had to consider and decide the several arguments that were raised before him for and against the validity of the impugned clauses of the notification, and the argument under Art. 19(1)(g) was one of such arguments which he had to consider and decide. Thirdly, the parties have argued their case before the third Judge on the basis that the opinion of the third Judge on the validity of the impugned clauses required also his decision on the question whether the said clauses were hit by Art. 19(1)(g) of the Constitution. In these circumstances, we are of the view that no grievance can be made by Mr. Phadke that Mr. Justice Tambe's opinion on the point of the attack under Art. 19(1)(g) is without jurisdiction.
199. The last point raised by Mr. Phadke is that there is a conflict of opinion on the question of the severability of Cls. 3 to 7 of the impugned notification. On this point, of course, Mr. Justice Mudholkar, having taken the view that the entire notification was intra vires, could not, in the nature of things, pronounce any opinion. So far as my opinion was concerned, I held that it was no possible to extricate any of the provisions of Cls. 3 to 7 from the portions of the notification which may be held valid except Cls. 1 and 2, and, therefore, I declared the entire provisions of Cls. 3 to 7 ultra vires. What is now sought to be argued is that Mr. Justice Tambe in Para. 28 of his opinion has held that the second part of Clause 6, Clause 7 ad the explanation to the notification are clearly severable from the parts held good by him. To that extent the decisions conflict and, therefore, it is urged that Clause 36 of the Letters Patent which prescribes that the opinion of he majority of the Judges who have heard the case, including those who first heard it, shall prevail, cannot be given effect to. I our opinion, the portions of the opinion of Mr. Justice Tambe, to which Mr. Phadke has referred, do not contain the points in the case. They are merely the grounds or reasons which the learned Judge gave for coming to his ultimate conclusion that part of Clause 6, Clause 7 and the explanation were ultra vires. That conclusion was directly upon the points in difference before the Division Bench; and therefore, in compliance with Clause 36 of the Letters Patent. None of the contentions urged by Mr. Phadke, therefore, can be upheld.
200. We may also generally observe that none of these contentions were raised before Mr. Justice Tambe, but on the contrary it appears from his opinion that both the parties freely and without objection argued all the points before him. That being so, one of the parties cannot now turn round and urge that the third Judge ought not to have decided a point or that he exceeded his jurisdiction in doing so, or had no jurisdiction to decide it. The first of the contentions of Mr. Phadke moreover ought properly to have been raised before the Division Bench itself, but no indication was given to the Division Bench that either party desired specified points to be stated.
201. Moreover, all these points have been argued before us if we were sitting as an appellate Court which we are not. On the contrary, it seems to us that the conclusions reached by Mr. Justice Tambe are binding on us and we must give a decision in accordance therewith. We have already indicated that on a perusal of his opinion we have no doubt as to the conclusions reached by him. They have been made amply clear in the opinion itself.
202. In the net result, therefore, in accordance with the opinion of the third Judge -
(1) We hereby declare the following clauses of the schedule to the notification, dated 11 June, 1958, published in the Bombay Government Gazette of 14 June 1958 (notification No. MWA-1557-J) to be ultra vires of the powers of the State Government :-
(a) The following portion of Clause 6 of the schedule :
"It shall, however, be open to the employer to take suitable action against the employee if the 'chhat' is more than 10 per cent., for 6 continuous working days in a calendar month."
(b) Clause 7 of the schedule.
(c) The explanation appended at the foot of the notification.
We prohibit the State Government from giving effect to any one or more of the abovementioned provisions and order that they shall be deleted from the impugned notification.
(2) The remaining provisions of the notification are held intra vires of the powers of Government and therefore, valid and effective.
(3) The petitions are thus partly allowed to the extent indicated in Para. (1) above.
203. There then remains the matter of costs. The main justification offered in support of the notification at the hearing before the Division Bench was upon the express powers of Government under the Minimum Wages Act, and it was only when the contention failed that the implied powers were invoked. Even upon the implied powers some portions of the notification have now been held to be ultra vires. We think that in these circumstances the proper order to pass as regards costs is that each party shall bear its own costs.