Nigam, J.C.

1. The Minimum Wages Act 1948 (Act 11 of 1948) came into force on 15-3-1948. On 27-4-1948 a notification was issued appointing every Chief Commissioner as the appropriate Government for his province under S. 2(o) of Act 11 of 1948. This notification was superseded by another, dated 16-3-1949, and it was directed that the functions of the appropriate Government shall in respect of each Chief Commissioners province be exercisable also by the Chief Commissioner.

2. On 17-3-1950 the Chief Commissioner. Ajmer, issued notification No. 3/74/49-LSG, which runs:

Whereas the Chief Commissioner is of the opinion that minimum rate of wages of employment in the textile mills should be fixed, under the Minimum Wages Act, 1948 (No. 11 of 1948);

Now therefore, in exercise of the powers conferred on him by Section 27 of the said Act read with the Government of India. Ministry of Labour Notification No. 24(1) dated 16-3-1949, the Chief Commissioner hereby gives three months notice to ah concerned of his intention to include the said employment in Part 1 of the Schedule of the said Act.

By order, A.S. Dhawan, Secretary to the Chief Commissioner, AJMER.

3. On October 10, 1950, another notification No. 8/74/49-LSG was issued:

In exercise of the powers conferred by Section 27 of the Minimum Wages Act, 1948 (XI of 1948) read with the government of India, Ministry of Labour Notification No. LP-24(1), dated 16-3-1949, the Chief Commissioner after having given notice for three months of his intention to fix minimum rates of wages for employment in the textile mills vide this Administration Notification No. 8/74/49-LSG. dated 17-3-1950, has directed that the following employment should be added in part 1 of the Schedule to the said Act:

13- Employment in textile industry.

By order A.S. Dhawan, Secretary to the Chief Commissioner, AJMER.

4. On 23-11-1950 by notification no. 8/40/49-LSG, the Chief Commissioner framed rules for carrying out the purposes of the Minimum Wages Act, 1948. On 17-1-1952 by notification No. 8/2/50-LSG, the Chief Commissioner appointed a committee of ten to advise him in regard to the fixation of the minimum wages in the textile industry in the state of Ajmer and under R. 3 of the Rules, the term of the office of the members of the committee was fixed at six months from the date of the issue of the notification. Of the ten members, four represented the employees and four the employers. There was an independent chairman and one independent expert member Shri S.G. Annegeri. The term of the members which expired on 17-7-1952 was extended upto 20-9-1952 by a notification dated 21-8-1962. A further extension upto October 5th, was effected through notification, dated 14-9-1952. The committee submitted its report on 4-10-1852, and the Chief Commissioner issued notification No. 18/9/52-D & L, dated 7-10-1952, notifying the minimum wages in textile industries in the State of Ajmer and directed that the notification should be deemed to have come into force with effect from 1-9-1952.

5. On 28-8-1952 the Chief Commissioner also issued notification No. 18-Lab-9-52/D & L., appointing Shri Annegeri as a member of the committee appointed under the notification, dated 17-1-1952.

6. Petition No. 260 of 1952 has been filed by the Edward Mills Co. Ltd., Beawar, the Krishna Mills Co. Ltd., Beawar and the Mahalaxmi Mills Co. Ltd., Beawar seeking a declaration that the Chief Commissioners notification dated 7-10-1952, is illegal and void and not binding on the petitioners and for a writ in the nature of mandamus or other suitable direction or orders to the State of Ajmer ordering it not to enforce the same or such further orders as this Court may deem fit to pass.

7. Petition No. 263 of 1952 has been filed by Shri Bijay Cotton Mills Ltd., Bijainagar. District Ajmer, praying for a writ of mandamus or other suitable direction or order calling upon the respondents to show cause why the notification, dated 7-10-1952, be not declared illegal, ultra vires and not binding on the applicant company and for a writ of certiorari to quash the said notification and for suitable prohibitory orders restraining the respondents from enforcing the said notification or taking any proceedings in pursuance thereof and such other orders as may be deemed fit in the circumstances of the case.

8. In these writ applications I have heard the learned counsel for the applicants and the learned Solicitor-General and the Government Pleader for the respondents.

9. Shri Jindel has in Petition No. 263 of 1952 argued that the Minimum Wages Act. 1948, was intended to apply only to industries in which labour was un-organized. The learned counsel has not read me out from the statement of objects and reasons or even from the discussion in the Parliament in respect of this bill. He has referred to the preamble which reads:

Whereas it is expedient to provide for fixing minimum rates of wages in certain employments

and argues with reference to Part 1 of the Schedule that the intention of the legislature was that the Act should in its operation be confined only to industries in which the labour was not organized. I am unable to agree with the learned counsel. To me it appears that the word certain in the preamble refers to the proviso to Section 3(1)(b) of Act XI of 1948 which reads:

Provided that the appropriate Government shall not be required to fix minimum rates of wages in respect of any scheduled employment in which there are in the whole state less than 1,000 employees engaged in such employment.

I do not find any reference in the Act to the organization of the labour or to the stage such organization has leached. Besides referring to the Schedule the learned counsel has not drawn my attention to anything in support of his contention that the Act was intended to apply only to the industries in which the labour was unorganized. I am, therefore, unable to agree with the learned counsel.

10. The other point urged by Shri Jindel is that the Chief Commissioner and the Committee appointed by him acted beyond the scope of their power conferred on them when they fixed the wages notified on 7-10-1952. The learned counsels contention is that under the Act only minimum wages could have been fixed. The Committee, however, advised the fixing of wages which are living wages and not minimum wages. The learned counsel has also pointed out that instead of taking expenditure of three units in the family the Committee based its calculation on 3-4 persons in each family. It is argued that on this basis the notification issued by the Chief Commissioner on 17-10-1952 is liable to be declared invalid as it is beyond the scope of the authority vested in him. On this point the learned counsel has referred me to Ahmed Hossain v. State of Madhya Pradesh, AIR 1951 Nag 138 (A); Vedachala Mudaliar v. State of Madras, : AIR 1952 Mad 276 (B); Avadesh Pratap Singh v. State of Uttar Pradesh, : AIR 1952 All 63 (C) and Ram Charan Lal v. State of Uttar Pradesh : AIR 1952 All 752 (D). The Nagpur ruling relied on by the learned counsel lays down that the exercise of the statutory power for achieving a collateral object is an abuse of such a power. The authority exercising the power must act bona fide and can only use the power for fulfilling the ends permitted by the statute. Where the order is a misuse of the power of the statute, it could not be sustained. In the Madras ruling referred to above the head-note (a) reads:

Whenever any body of persons having legal authority to determine questions affecting the rights of subject and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the High Court exercised in issuing writs under Article 226.

11. : AIR 1952 All 63 (C), related to a case under the Court of Wards Act and it was held that the State Government and the Court of Wards are bodies of persons vested with legal authority to determine questions affecting the rights of other persons. In this case it was held that if in making the declaration the Government furnished a detailed statement of the grounds, but did not give the applicant an adequate opportunity of showing cause why such a declaration should not be made and all that the Government did was to ask for a mere representation from the applicant within a certain time, the local Government fails to follow the procedure laid down by law and it exceeds its jurisdiction in making the declaration and the court would quash the declaration made by the local Government.

12. In : AIR 1952 All 752 (D), the head-note (a) reads:

The powers of the Indian Courts under the constitution are much wider and are not confined to issuing prerogative writ only. Article 226 empowers the High Court to issue to any person or authority "any directions, orders or writs". This Court, therefore, has power to interfere even in the case of administrative orders which are made in defiance of mandatory provisions of law or without any jurisdiction.

13. I am of opinion that these rulings will not help the learned counsel. The Chief Commissioner was not bound to act judicially or even quasi-judicially. Even the Committee was not a judicial or a quasi-judicial Committee. The Chief Commissioner was not under an obligation to hear any party. Section 5 of Act 11 of 1948 only requires the Chief Commissioner to appoint a Committee to hold enquiries and advise him. The Chief Commissioner under S. 5(2) was bound to consider the advise of the Committee and to fix by notification in the official gazette the minimum rates of wages applicable to the scheduled employment. The Chief Commissioner was not bound to hear either party. It is not denied that the Chief Commissioner has fixed the wages and it is not alleged that he did not consider the advice rendered by the Committee. This Court can examine administrative order when they are made in defiance of the mandatory provisions or without jurisdiction. It has not been shown that the Chief Commissioner acted mala fide, in excess of his jurisdiction or in defiance of principles of natural justice.

On 15-7-1952 the Committee held its fifth meeting and submitted its interim report. Then the Committee unanimously agreed on six points. It was agreed that the minimum wages must provide not merely for the bare subsistence of life but also for the maintenance of the efficiency of the workers which meant that some measure of education and medical requirement should also be provided for. The second point agreed upon was that a working class family was to be considered to consist of 3-4 consumption units with one earning member. It would thus appear that both the points objected to by the learned counsel were specifically agreed to by the representatives of the employers. In these circumstances, it is not possible for me to hold that the Chief Commissioner acted mala fide in exercise of his jurisdiction. I am, therefore, unable to see any force in the contention of the learned counsel.

14. The first point urged by Shri Chatterjee is that the power conferred by S. 27 of the Minimum Wages Act, amounts to unrestricted delegation of legislative powers, Section 27 reads:

The appropriate Government, after giving by notification in the official Gazette not less than three months notice of its intention so to do may, by like notification, add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act. and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly.

15. Section 2(b) defines approbate Government as being the Central Government in relation to employment carried on by or under the authority of Central Government, by a railway administration or in relation to a mine, oilfield, or major port or any corporation incorporated by a Central Act and the State Government in respect of any other scheduled employment.

16. The contention of the learned counsel is that from the preamble to the Act which refers to certain employments it appears that the Legislature had no intention of providing for the fixing of the minimum rates of wages in aspect of all employments. The Legislature did not lay down any policy or principle to be followed by the appropriate Government in deciding whether any particular employment should be included. As such, the argument is S. 27, confers unrestricted powers on the appropriate Government to add to the employments in respect of which minimum rates of wages may be fixed and the learned counsels contention is that conferment of such unrestricted powers amounts to an unwarranted delegation of legislative powers.

The suggestion of the learned counsel is that the Legislature should in every case prescribe the limits within which the executive can exercise the discretion and, as such, it should have laid down some specific conditions or intelligible criteria with reference to which the executive could take further action to carry out the purposes of the legislation. It should lay down some principles, prescribe certain standard and provide an intelligent guide for the subordinate authority. In the absence of such guide and control the power conferred by S. 27 amounts not merely to conditional legislation but to an unwarranted and en unrestricted delegation of legislative powers which will not be countenanced by the Courts.

17. Shri Chatterjee has referred me to Empress v. Burah, in 4 Cal 172 (PC) (E). In this case two questions appear to have been involved. The first was whether the Indian Legislature was under a mandate of the Imperial Parliament which must in all cases be executed directly by itself. The second question was whether the powers conferred on the executive amounted to an unwarranted delegation of the legislative powers. It is the second question with which we are concerned in the present case. Their Lordships at page 182 stated:

Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant-Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act (No. XXII of 1869) itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may in their Lordships judgment be well exercised, either absolutely or conditionally.

Legislation conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred. It certainly used no words to exclude it. Many important instances of such legislation in India are mentioned in the opinions of the Chief Justice of Bengal, and of the other two learned Judges who agreed with him in this case. Among them are the great Codes of Civil and of Criminal Procedure (Acts 8 of 1859, 23 of 1861 and 25 of 1861).

18. At page 183 their Lordships added:

.. .. If their Lordships were to adopt the view of the majority of the High Court they would (unless distinctions were made on grounds beyond the competency of the judicial office) be casting doubt upon the validity of a long course of legislation, appropriate as far as they can judge, to the peculiar circumstances of India; great part of which belongs to the period antecedent to the year 1861, and must therefore (as Sir Richard Garth well observed) be presumed to have been known to, and in the view of the Imperial Parliament, when the Councils Act of that year was passed. For such doubt their Lordships are unable to discover any foundation, either in the affirmative or in the negative words of that Act.

19. Their Lordships held the 9th Section by which the Lieutenant-Governor of Bengal was empowered, "from time to time by notification in the Calcutta Gazette" to "extend, mutatis mutandis all or any of the provisions contained in the other sections to the Jaintia Hills, the Naga Hills, and such portion of the (sic) Hills might for the time being, form part of British India" valid.

20. I have been referred to In re Art. 143, Constitution of India & Delhi Laws Act (1912) etc., AIR 1951 SC 332 (F). Shri Chatterjee has referred me to paras 11, 38, 183, 244, 245, 246, 262, 276 and 391 of the judgment. The learned Solicitor-General has referred to paragraphs 53, 54, 55, 58 59, 61, 62, 65, 66, 67, 68, 70, 71, 73, 74, 76(d), 78, sub-para 5 in para 79, 80, 90, 97, 111, 128, 237, 246, and 263. I do not consider it necessary to quote extensively from these paragraphs. I will make only a few quotations. In para 42 it is stated:

.....It seems to me that the Legislature in India .. has to discharge its legislative function, i.e., to lay down a rule of conduct. In doing so it may, in addition, lay down conditions, or state facts which on being fulfilled or ascertained according to the decision of another body or the executive authority, the legislation may become applicable to a particular area. This is described as conditional legislation. The Legislature may also, in laying down the rule of conduct, express itself generally if the conditions and circumstances so require. The extent of the specific and detailed lines of the rule of conduct to be laid down may vary according to the circumstances or exigencies of each case. The result will be that if, owing to unusual circumstances or exigencies the Legislature does not choose to lay down detailed rules or regulations, that work may be left to another body which is then deemed to have subordinate legislative powers.

In para 237 the judgment states:

In a conditional legislation, the law is full and complete when it leaves the legislative chamber but the operation of the law is made dependent upon the fulfillment of a condition, and what is delegated to an outside body is the authority to determine by the exercise of its own judgment, whether or not the condition has been fulfilled. .... .... ....

21. In para 264 the question whether there was an unwarranted delegation of legislative powers to the executive Government was considered and it was stated:

If the competent Legislature had framed a statute and left it to an outside authority to extend the operation of the whole or any part of it, by notification, to any particular area, it would certainly be an instance of conditional legislation as discussed above and no question of delegation would really arise. The position would not be materially different, if instead of framing a statute the Legislature had specified one or more existing statutes or annexed them by way of a schedule to the Act and had given authority to a subordinate or administrative agency to enforce the operation of any one of them at any time it liked to a particular area. It could still be said, in my opinion, that in such circumstances, the proper Legislature had exercised its judgment already and the subordinate agency was merely to determine the condition upon which the provisions already made could become operative in any particular locality.

22. The question for decision in this case was whether S. 7 of the Delhi Laws Act (1912) was ultra vires the Legislature which passed the said Act to any extent. Section 7 of the Delhi Laws Act empowered the Provincial Government by notification to extend to the province of Delhi any enactment which is in force in any part of British India at the date of such notification. Similarly, the validity of S. 2 of the Ajmer-Merwara Extension of Laws Act, 1947, and Section 2 of Part C States (Laws) Act, 1950 was challenged and it was held that all the three impugned provisions were intra vires the Legislature except the last portion of Section 2 of the Part C States Laws Act, 1950 which provided for the repeal or the amendment of any corresponding law which was for the time being applicable to that part of C States.

23. The position thus is that in 4 Cal 172 (PC) (E), it was held that leaving to the Lieutenant-Governor the power to apply by public notification to a district any law or part of a law which either already was or from time to time might be in force by proper legislative authority in the other territories subject to his government was not unwarranted delegation but was conditional legislation.

24. In AIR 1951 SC 332 (F), as stated above the conferment of the powers on the Provincial Government was held not to be an objectionable delegation of legislative functions except as to the last part of S. 2 of Part C States (Laws) Act, 1950. Other instances are mentioned in sub-para 6 of paragraph 79 of the same judgment. I am, therefore, of opinion that if it is held that the Chief Commissioner was only to extend the application of the law passed by the Legislature that could not be an objectionable delegation of legislative functions.

25. Shri Chatterjee has objected to the application of the Minimum Wages Act to any new industry not mentioned in the Schedule attached to the Act. He has distinguished between a territorial extension of an act and an extension of the present Act to new industries not mentioned in the Schedule. I may confess that I am unable to see any force in this contention. To me it appears that when an Act is extended to a new territory it applies to a body of persons. Similarly when the Minimum Wages Act applied to another industry, the result was to make the particular law which had already been passed by the Legislature applicable to a new set of persons. In that view I am unable to see any distinction between extension of a law to a fresh territory or to another industry.

26. Shri Chatterjee argued that there would have been no objection to Section 27, Minimum Wages Act, if the Legislature had framed another list of industries and given the executive the authority to apply the Act to any one of them. It appears to me that the objection is that the Legislature did not provide any limits to the scope of the exercise of the executive authority. I am unable to see any force in this contention. Unless it is clear that the Legislature did not intend to legislate about all employments, there was no necessity for preparing any such Schedule. I have already repelled the argument that the Minimum Wages Act was intended to apply only to industries in which labour was unorganized. The mere fact that the words certain employments are used in the heading and the preamble of the Act does not imply that the intention was to legislate only in respect of some employments.

From the proviso to Section 3(1)(b) it is clear that the Act could not be extended to apply to any employment in which there are in the whole State less than 1,000 employees. There is no other indication as to the limit imposed on the operation of this Act. I am, therefore, of opinion that the Legislature intended to apply the Act to all employments having more than 1,000 employees in a particular State and that it, while immediately applying the provisions of the Act to the employments mentioned in the Schedule, permitted future application of the Act to other employments satisfying the conditions of the proviso to Section 3(1) (b) at the discretion of the appropriate Government. That being my view, it follows that Section 27 is not in excess of the powers that may conveniently be left to the discretion of the executive authority.

27. Shri Chatterjee also argued that Section 27 is ultra vires the Legislature inasmuch as it conferred powers on the appropriate Government not only to apply the Act to certain other employments but expressly conferred powers of amending the Schedule. The contention is that this power of amending the Schedule clearly amounts to a power of amending the legation and this amounts to delegation of powers of legislation. Section 27 states that the appropriate Government may by notification add any employment to the Schedule and thereupon the Schedule shall be deemed to be amended accordingly. In my opinion, the power conferred was not really one of making any amendments. The appropriate Government was not given any legislative functions. It was merely authorized to extend the application of the Act to other employments.

Instead of merely saying that the Act may, by notification be applied to other industries at the discretion of the appropriate Government the section authorized the appropriate Government to add to the Schedule and declared that thereupon the Schedule shall be deemed to be amended. In reality the appropriate Government was not given any right to amend any material portion of the Minimum Wages Act. It was only authorized to apply the provisions of the Minimum Wages Act as passed by the Parliament to other industries at its discretion subject to the essential condition that the particular industry to which the Act was intended to apply employs at least 1.000 employees within the State. In that view. I am if opinion that no power to legislate or amend the law as passed by the parliament was in fact, delegated.

28. I, therefore, disagree with the learned counsel for the applicants and hold that Section 27 is not ultra vires the Legislature.

29. The second point urged by the learned counsel for the applicants is that the Chief Commissioner was not competent to issue the notifications dated 17-3-1950, 19-10-1950 and the final notification dated 7-10-1952. The learned counsel contends that the powers conferred on the Chief Commissioner by notification dated 16-3-1949, ceased to have effect with the coming in force of the present Constitution on 26-1-1950. The learned counsel has urged that the notification dated 16-3-1949, was issued under S. 94(3) of the Government of India Act, 1935. Section 94(3) reads:

A Chief Commissioners Province shall be administered by the Governor-General acting to such extent as he thinks fit, through a Chief Commissioner to be appointed by him in his discretion.

The learned counsel points out that Provincial Government was defined under S. 3 (43a) of the General Clauses Act as it was before the adaptation of Laws Order, 1950. Sub-Clause (b) stated that:

Provincial Government as regards anything done after the commencement of Part III of Government of India Act 1935 shall mean in a Chief Commissioners Province, the Central Government, and, as respects anything done before the commencement of Part III of the said Act, shall mean the authority or person authorised at the relevant date to administer executive Government in the Province in question.

The learned counsel has pointed out that as a result of the Adaptation of Laws Order, 1950. Clause 60(b) of the General Clauses Act defines State Government with respect to a Chief Commissioners Province and the Clause reads:

State Government as respects anything done or to be done after the commencement of the Constitution shall mean, in a Part A State, the Governor, in a Part B State, the Rajpramukh, and in a Part C State, the Central Government.

Central Government is defined in Clause 8. Clause 8(c) (ii) reads:

Central Government shall in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include in relation to the administration of a Part C State, the Chief Commissioner or Lieutenant Governor or Government of a neighboring State or other authority acting within the scope of the authority given to him or it under Article 239 or Article 243 of the Constitution, as the case may be.

The learned counsel pointed out that no delegation of authority has been made under Art. 239. The learned counsels contention is that no authority having been delegated to the Chief Commissioner. Ajmer, under Art, 239 of the Constitution, he was not the appropriate Government within the meaning of S. 2(b)(ii) of the Minimum Wages Act & could not have issued any notification adding to the Schedule to the Act.

30. The learned Solicitor-General has, on the other hand, relied on paras 22 and 26 of the Adaptation of Laws Order, 1950. Para 22 reads:

Save as is otherwise provided by this Order, all powers which under any law in force in India or any Part thereof were, immediately before the appointed day, vested in or exercisable by any person or authority shall continue to be so vested or exercisable until other provision is made by some Legislature or authority empowered to regulate the matter in question.

Para 26 reads:

Where any rule, order or other instrument was in force under any provision of the Government of India Act, 1935 or under any Act amending or supplementing that Act, immediately before the appointed day, and such provision is re-enacted with or without modifications in the Constitution, the said rule, order or instrument shall, so far as applicable, remain in force with the necessary modifications as from the appointed day as if it were a rule, order or instrument of the appropriate kind duly made by the appropriate authority under the said provision of the Constitution, and may be varied or revoked accordingly.

31. Article 239 of the Constitution corresponds to S. 94(3) of the Government of India Act though it makes the further provision that a Part C State may be administered through the Government of a neighboring State. As such a notification issued under S. 94(3) of the Government of India Act continues in force even after the coming in force of the Constitution. I, therefore, reject the contention of the learned counsel for the applicants.

32. I need not consider the further arguments advanced by the learned Solicitor-General based on Arts. 366 (10) and 372of the Constitution.

33. The next point urged by the learned counsel for the applicants is that the Committee was appointed by a notification, dated 17-1-1952. The term of the office of the Committee was fixed at six months. This term expired on 16-7-1952. On 21-8-1952 the Chief Commissioner by notification no. 18-Lab/9/52-D & L. extended the term of the Committee with effect from 17-7-1952 to 20-9-1952. Shri Chatterjee has urged that Rule 3 of the rules framed by the Chief Commissioner empowered him.

at the time of the constitution of the Committee or an Advisory Committee as the case may be to fix such terms and may, from time to time, extend it as circumstances may require.

Shri Chatterjee has vehemently contended that the rules do not authorize the Chief Commissioner to extend the term of the Committee retrospectively.

34. Shri Chatterjee has referred to Sections 514 and 521 of the Code of Civil Procedure 1882 (Act 14 of 1882). The contention of the learned counsel is that S. 514 of this Code permuted the Court to enlarge the period for the delivery of the award. This power, Shri Chatterjee suggests, could not be exercised retrospectively and a similar meaning should be attached to the parse used in the Rules.

Section 514 reads:

If from the want of necessary evidence or information, or from any other cause, the arbitrators cannot complete the award wit in the period specified in the order, the Court may. If it thinks fit either grant a further time, and from time to time enlarge the period for the delivery of the award, or make an order superseding the arbitration, and in such case shall proceed with the suit.

35. Shri Chatterjee has relied on three rulings. He has referred me to Jatindra Nath v. Province of Bhiar, : AIR 1949 F.C. 175 (G). The learned counsel relies on para 8 at page 178. The portion relied upon is:

That Act which was a temporary Act, as its duration was fixed for one year by the Act itself, came to an end when the first year expired. The result is that when the Bihar Amending Act V of 1949 was passed, there was no Bihar Maintenance of Public Order Act, 1947, in operation in the Province which could be amended and the notification of 18th March 1949, issued in the name of the Governor, could not improve the position.

36. It appears to me that this ruling wilt not help the learned counsel. This was a case of an amendment of Act which had ceased to operate.

37. The next ruling relied on by the learned counsel is the Strawboard Manufacturing Co. Ltd. v. Gupta Mill Workers Union, : AIR 1953 SC 95 (H). I am of opinion that this case will also not help the learned counsel as in this case it was held that the State Government had no authority whatever to extend the time much less to extend it retrospectively.

38. The third ruling relied on by the learned counsel is Har Narain Singh v. Bhagwant kaur, 13 All 300 (PC) (I). The learned counsel refers to the following passage at p 304.

When once the award was made and delivered the power of the Court under Section 514 was spent, and although the Court had the fullest power to enlarge the time under that Section as long as the award was not completed, it no longer possessed any such power when once that time was passed.

It appears to me that the point actually decided was whether the Court had power to extend the time retrospectively after the award had been delivered. The judgment of the High Court in the case is reported in Har Narain Singh v. Bhagwant Kuar, 10 All 137 (J). There it was held that under S. 514 of the Code the Court may extend the time for making the award after the time fixed therefor had expired. In the appeal before the Privy Council, Mr. Branson argued that the award not having been made within the period allowed by the Court, for that reason, was invalid. On three occasions the time fixed for the delivery of the award expired, without any award having been made or any extension of time having been granted. No date had been fixed in the first instance, and on the last occasion when extension of time was granted, the time limited in the previous order of extension had already expired. Thus, the last date was irregularity fixed, but even that had expired when the award was delivered. At page 303 the judgment states:

in the present case, however, the Subordinate Judge repeatedly made orders enlarging the time, and in those orders fixed the time within which the award was to the original order of Reference; and their Lordships are of opinion that it was competent for the Subordinate Judge to do so under Section 514 of the Code, which enables the Court to grant a further time and from time to enlarge the period for the delivery of the award, in cases when it cannot be completed within that period, from want of necessary evidence or from any other cause.

Thus it appears to me that in this case relied on by the learned counsel it was herd that time could be extended retrospectively if the Court had power to emarge the time. The same point was dealt with in Lakshmi Narasimham v. Somasundaram, 15 Mad 384 (K) and earlier by the privy Council in Budri Narain v. Mt. Sheo Koer, 17 Cal 512 (L). I am, therefore, of opinion that the Chief Commissioner had power to extend the term of the Committee even retrospectively. I am unable to agree with Shri Chatterjee on this point.

39. Another point urged by Shri Chatterjee is that notifications dated 17-3-1950, 10-10-1950 and 17-1-1952, were not legally and validly made. The learned counsels contention is that S. 59 of the Government of India Act and Art. 166 of the Constitution do not empower the issue of notification made or executed in the name of the Chief Commissioner and authenticated by a Secretary. The learned counsel has referred me to Ram Pargas v. Emperor, : AIR 1948 All 129 (M). In this case under the Indian Extradition Act (15 of 1903) it was held that the fact that the Political Agent had authorized Mr. Mathur by an order in writing, dated 27-12-1945 to sign warrants on his behalf was not sufficient and that in the absence of any power of delegation given to the Political Agent, he could not be considered to have the right to delegate his functions to any of his subordinates. The warrant was held illegal as it appeared to the Honble Judges that the Political Agent had never applied his mind to this particular warrant and that the warrant was issued by one of his subordinates under the general order given by him.

40. The learned counsel has also relied on Har Prasad Singh v. Dist. Magistrate Gazipur, : AIR 1949 All 403 (N) and has urged that S. 59 of the Government of India Act does not confer any authority on the Chief Commissioner, Ajmer. Bilas Rai v. The King, : AIR 1950 Pat 75 (O) and Province of Bihar v. Chhedilal Sharma, : AIR 1950 Pat 95 (P), have also been relied upon. In both these cases the sanction for the prosecution was signed by someone for the Additional. Under Secretary and the sanction was held to be irregular as there was no mention of an Additional Under Secretary in the rules framed by the Provincial Government. In addition there was the defect that the order had not even been signed by the Additional Under Secretary. All these rulings referred to proceedings under the Code of Criminal Procedure and not to executive acts. The learned Solicitor-General has urged that as Art. 166 of the Constitution (& S. 59 of the Government of India Act, 1935) do not apply to the Chief Commissioner, no presumption as to the authenticity of the notifications can be raised and that the instrument may be called in question on the ground that it is not made or executed by the Chief Commissioner.

The burden of the argument is that in this particular case it will be a matter of evidence as to whether the Chief Commissioner had, in fact, got the instrument or order issued. The respondent has filed an affidavit stating that the Chief Commissioner consulted the Government of India by letter, dated 21-11-1948, under his signature as to whether the Textile Industry should be included in the Schedule and on receipt of the Government of Indias approval the notification, dated 17-3-1950, was issued and that the notifications, dated 10-10-1950 and 17-1-1952, were issued after the Chief Commissioner had passed orders under his signature on the file directing the issue of the notifications under question.

41. The learned counsel for the applicants has urged that the notification, dated 17-3-1950, was issued without any express authority from the Chief Commissioner. A reference was made to the Government of India and on receipt of their reply the notification was issued by the Secretary without taking the Chief Commissioners orders. The learned counsel argues that the Chief Commissioner did not at that stage apply his mind to the question whether a notification should be issued. The learned counsel has relied on Fatma Haji Ali v. State of Bombay, : AIR 1951 SC 180 (Q) and Commr. of Police, Bombay v. Gordhandas, : AIR 1952 SC 16 (R). The learned counsel refers to head-note (a) (iii) and (a) (v) of the second ruling. Head-note (a) (iii) runs:

The order of cancellation was not an order by the Commissioner but merely intimation by him of an order passed by another authority, namely the Government of Bombay. As the only person who could effect the cancellation was the Commissioner of Police, there was no valid order of cancellation. In this view, the license still held good............

This view is of no help to the learned counsel as the facts in the present case are different.

42. Head-note (a)(v) reads:

The discretion vested in the Commissioner of Police under Rule 250 had been conferred upon him for public reasons involving the convenience, safety, morality and welfare of the public at large. An enabling power of this kind conferred for public reasons and for the public benefit was coupled with a duty to exercise it when the circumstances so demanded. It was a duty which could not be shirked or shelved nor could it be evaded; performance of it could be compelled under Section 45.

The learned counsel has urged that the Chief Commissioner was bound to apply his mind to the question of the issue of the notification and the decision could not be left to the Secretary to be made in accordance with the Government of Indias permission.

43. The learned Government Pleader has urged that the Chief Commissioner had already applied his mind to the question of the issue of the notification and only the formal approval of the Government of India was awaited. It was, therefore, not necessary for the Chief Commissioner to reconsider the matter and the question of the issue of the notification could be left to a subordinate authority as it involved no decision on a question of principle. The learned Government Pleader has also urged that a second notification actually adding the Textile Industry was issued on 10-10-1950 and that even if there is any defect in the preliminary notification, that defect is immaterial in view of the final decision of the Chief Commissioner to actually extend the operation of the Minimum Wages Act to the Textile Industry. It is suggested that it is really the second notification which extended the operation of the Act to this industry and, as such, defect if any in the earlier notification is of not much consequence.

44. Another point urged by the learned counsel for the applicants is that the draft of the notification that was issued was not approved by the Chief Commissioner personally. The learned counsel urged that even if the Chief Commissioner is held to have approved the issue of the notification he was bound to consider the actual form of the notification as the language used is often of material importance. I am unable to accept this argument. I am of the view that once the question of principle has been decided the actual drafting or the secretarial worn may be left to a subordinate agency and no objection can be taken to the notification unless it is shown that it is in excess of the principle approved by the competent authority.

45. I accept the argument of the learned Government Pleader and it appears to me that the Chief Commissioner had, in fact, applied his mind to this particular matter and that the notifications were not issued under any general authority given by him. I am, therefore of opinion that, as a matter of fact, all the three notifications were issued under orders of the Chief Commissioner and with his concurrence. I, therefore, see nothing wrong about them.

46. It has also been urged that the notifications do not on their face show that they were issued by the Chief Commissioners orders. The two notifications, dated 17-3-1950 and 10-10-1950 are subscribed By order, A.S. Dhawan, Secretary to the Chief Commissioner, Ajmer. The notification, dated 17-1-1952, is signed By order K.D. Gupta, Assistant Secretary to the Chief Commissioner Ajmer. The objection is that it is not stated that the notifications were being issued by the orders of the Chief Commissioner. I am unable to attach any weight to this contention. Similar subscription was used in the order impugned in : AIR 1949 All 403 (N). No objection was taken to the manner of subscription. Besides, in view of the language used in the notifications, it is clear that the notifications were being issued by the order of the Chief Commissioner, Ajmer, I am, therefore, unable to see any force in this contention.

47. The next point urged by Shri Chatterjee is that the Committee on the advice of which the Chief Commissioner issued the notification dated 7-10-1952, was not properly constituted. Shri Chatterjee has urged that Shri Annegiri railed to attend three meetings of the Committee and thus he ceased to be a member of the Committee under Rule 9(1). Action, however, was taken by the Chief Commissioner under Rule 9(2) but under Rule 8(3) and, as such, the reappointment of Shri Annegiri was not properly made. The learned counsel has also urged that it is not open to the respondent to urge that the court may hold that Shri Annegiri was not properly re-appointed to the Committee as in the absence of at least two independent members, the Committee could not be said to have been properly constituted and could not give advice to the Chief Commissioner.

48. On 27-5-1952 Shri Annegiri wrote to the Secretary to the Chief Commissioner, State of Ajmer, that he was proceeding to Europe on 3-6-1952 and would be away from India for a period of about three months. He expressed his willingness to assist the Chairman in the preparation of the report on his return in the first week of September if the term of the Committee was extended. If, however, a report was desired before September, the letter may be treated as his resignation. A copy of this letter was sent to the Chairman. On 20-8-1952, Dr. Bagchi, the Chairman of the Committee, reported to the Government of Ajmer that Shri Annegiri had desired that this letter, dated 27-5-1952, be treated as his resignation and had also failed to attend three consecutive meetings and as such he may be considered to have ceased to be a member of the Committee He requested that steps be taken to fill up the vacancy.

49. Rule 8 runs:

(1) A member of the Committee..... other than the Chairman may, by giving notice in writing to the Chairman, resign his membership.

(2).......................

(3) When a vacancy occurs or is likely to occur in the membership of the committee, .. the Chairman shall submit a report to the Government immediately. The Government shall take steps to fill the vacancy.

50. Rule 9(1) reads:

If a member of the Committee .. fails to attend three consecutive meetings, he shall subject to the provisions of sub-rule (2) cease to be a member thereof.

(2) A person who ceases to be a member under sub-rule (1) shall be given intimation of such cessation by a letter sent to him by registered post within 15 days from the date of such cessation .. if a majority of members present in the next meeting is satisfied that the reasons for failure to attend three consecutive meetings are adequate, the member shall be restored to membership immediately after a resolution to that effect is adopted.

51. It is agreed that the procedure prescribed by Rule 9(2) was not followed. The learned Solicitor-General has, however, urged that Shri Annegiri had sent a copy of his letter to the Chairman and the Chairman made the report to the Government though not immediately. The Government had the option of treating the vacancy as arising from the resignation or due to failure to attend three consecutive meetings. The Government treated the letter of 27-5-1952 as a letter of resignation and took action under Rule 8(3). The learned Solicitor-General has urged that the Government had full authority to treat the letter of 27-5-1952 as a letter of resignation & the resignation having become effective from 27-5-1952 the disqualification arising out of the failure to attend three consecutive meetings was not actually incurred. With this view, I agree and I am of opinion that the Government was quite justifying in treating the letter of 27-5-1952 as a letter of resignation and in proceeding to till up the vacancy under the provisions of Rule 8(3). The Government made such appointment on 28-8-1952.

52. I need not discuss the argument that a Committee of less than six cannot be appointed in view of the provisions of Section 9 of Act 11 of 1948. Shri Chatterjee has urged that the Committee muse contain independent persons not exceeding one-third of its total number of members and one of such independent persons is to be appointed a Chairman. The learned Counsels contention is that as it is only one of the independent persons who is to be appointed as Chairman, there must be at least one other independent person and thus there should be at least six members constituting the Committee. I am unable to agree with this view. In my opinion, it would be sufficient compliance if there was only one independent member and he was appointed Chairman. Thus even if Shri Panegyrics re-appointment was invalid, the Committee could be said to be properly constituted and the Chief Commissioners action on the advice of the Committee would not be open to objection.

53. Another objection urged by the learned counsel for the applicants is with reference to the proceedings of the Meeting held on 10-9-1952. Then it was decided that the relevant records may be sent to Shri Annegiri as desired by him. The learned counsel has referred me to Rule 15, it reads:

Disposal of business All bushiness shall be considered at a meeting of the committee, .... and shall be decided by a majority of the votes of the members present and voting. In the event of an equality of votes the Chairman shall have a casting vote.

Provided that the Chairman may, if he thinks fit direct that any matter shall be decided by the circulation of necessary papers and securing written opinion of the members:

Provided further that no decision on any question which is referred under the first proviso shall be taken, unless supported by not less than a two-thirds majority of the members.

54. The learned counsels contention is that papers were, in fact, circulated to Shri Annegiri and as such they should have been circulated to all the members and no decision taken except in accordance with the view of a two-thirds majority.

55. The learned Solicitor-General has, on the other hand, urged that no circulation of papers took place and therefore, no question of a two-thirds majority arose. It is provided in the Rules that the President may decide a question by circulation of the necessary papers for written opinion. It appears to me that authority has been given to the Chairman either to hold a meeting or to circulate papers. What appears to have occurred in this particular case is that a Meeting was held and the papers were sent to Shri Annegiri as desired by him something which is not specifically provided for by the Rules. I am definite that no circulation of papers was intended or was, in fact, made. As such, the proviso to Rule 15 will not apply. At best it can be urged that as Shri Annegiri was not present at the last meeting he was not entitled to vote. Even without Shri Annegiri, there would be a majority in support of the final report. As such, I am unable to see any force in the contention of the learned counsel for the applicants.

56. The last point urged by Shri Chatterjee is that in any case the notification, dated 7-10-1952, is bad as it was directed to take effect from 1-9-1952, i.e., retrospectively. The learned counsel has referred to S. 3 (1) (a) (iii), which runs:

The appropriate Government shall in the manner hereinafter provided fix the minimum rates of wages payable to the employees employed in an employment included in Part X or Part II of the Schedule by notification under Section 27, from such date as may be specified in this behalf in the notification.

The learned counsel has referred to Section 5(2) which reads:

After considering the advice of the committee appointed under clause (a) of sub-section (1) ..... the appropriate Government shall, by notification in the official Gazette, fix the minimum rates of wages m respect of each scheduled employment and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue.

57. Shri Chatterjee contends that no authority was conferred on the appropriate Government to issue a notification to take effect retrospectively. The learned counsel points out that on 1-9-1952 even the report of the Committee appointed to advice the Chief Commissioner was not ready. He has urged that the legislature intended that some time should elapse and some notice be given to the industry before the minimum wages fixed by the Chief Commissioner came into effect. The learned counsel has relied on G.P. Stewart v. Jogendra Nath, : AIR 1939 Cal 628 (S). Head-note (b) reads:

........................ Unless the parent Act itself clearly authorizes the issue of a notification with retrospective effect, it must be presumed that such a notification is forbidden............................................

58. In this case the question was whether a notification under the Act, rather than the Act itself, can have retrospective effect and it was held that retrospective notifications were seldom contemplated and that some of the provisions of the particular Act under consideration indicated that retrospective notifications could not have been in the contemplation of the Legislature.

59. The facts in the present case are almost similar. I do not think it was contemplated by the Legislature that retrospective notifications should be issued. The learned Solicitor-General has not seriously contested this point and I am therefore, of opinion that a retrospective notification could not have been issued by the Chief Commissioner.

60. The learned Solicitor-General has relying on : AIR 1939 Cal 628 (S), urged that the offending portion can be severed. He refers to head-note (b). The portion relied upon reads:

............ But, applying the principle that where a statutory order is made on a certain date, courts can sever it and give effect to it as from a subsequent date, on the ground that it was not known to the public until the latter date, the court can give effect to the Assam Court of Wards Amendment Act from 12th January 1938 instead of 5th November 1937 which is the date mentioned in the Assam Governments notification.

61. I am of opinion that this ruling applies and the portions and directs that the ratification shall be deemed to have come into force with effect from 1st September 1952 are in excess of the Chief Commissioners powers and have to be expunged. Once these words are excluded the notification will, in terms of S. 5(2) of Act 11 of 1948, come into force on the expiry of three months from the date of its issue, i.e., on 8-1-1953.

62. No other point has been pressed before me.

63. I, therefore, hold that the applicants are entitled to a writ of mandamus restraining respondent No. 1 from enforcing notification No. 18/9/52-D & L, dated 7-10-1952, from any date earlier than 8-1-1953.

64. In the circumstances of the case, I direct the parties to bear their own costs.

65. Both petitions Nos. 260 of 1952 and 263 of 1952, were argued together. This order will govern both the writ petitions. The original order will be placed in the file of Civil (Misc.) Petition No. 260 of 1952 and a copy thereof will be filed in Civil (Misc.) Petition No. 263 of 1952.