TMI Blog1967 (4) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to the life of community . On the same day another notification was issued under sub-r. (4) of r. 126-AA. By this notification, the Governor ordered payment of ad hoc cost of living allowance of ₹ 100/per mensem to all workers drawing pay upto ₹ 400/- per mensem engaged in the employments notified for purposes of sub-r. (1) of r. 126- AA. Another notification was also issued on November 4, 1964 under sub-r. (4) by which the Governor ordered payment of ad hoc cost of living allowance of 34.46 paisas per day to all persons engaged on daily wage basis in the employments which had been notified on September 26, 1964 for the purpose of r. 126-AA(1). The validity of these three notifications was challenged by writ petitions before the High Court by the respondents on various grounds. It was first urged that r. 126-AA was a case of excessive delegation and was therefore ultra vires. The second contention was that r. 126-AA was beyond the powers conferred under s. 3 of the Defence of India Act (No. 51 of 1962), and was bad on that account. Thirdly, it was urged that the first notification under r. 126-AA (1) was bad as conditions precedent to the exercise of the power c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther party before us and need not be considered any further. The High Court further held that the conditions precedent to G the exercise of the power conferred by r. 126-AA had not been complied with and therefore the notification under sub- rule (1) was bad. The High Court was of the view that the Governor did not form such opinion as was necessary before the issue of the notification under sub-r. (1). Nor was it shown that the employments included in the impugned notification were essential for securing public safety and for maintaining supplies and services necessary to the life of community. The High Court also held that the exercise of power under sub-rule (1) was colourable as it was not shown that the employments mentioned in the notification under sub-r. (1) were essential for securing public safety and thus one of the purposes mentioned in the notification was non-existent. As such it could not be predicated as to which of the two purposes mentioned in the notification led the State Government to issue the notification and in consequence the notification under sub- r. (1) was invalid. Finally, the High Court held that the notification under sub-r. (1) was mala fide in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the community, declares by notification to be essential service, becomes an employment within sub-rule (1) above. The explanation to sub-rule (1) says that employment includes employment of any nature, and whether paid or unpaid. Thus there are three classes of employments which are treated as essential services for purposes of sub-r. (1), namely, (i) employments under the Central Government, (ii) employments under the State Government, and (iii) any employment which is declared by notification under sub-r. (1) to be essential for the purposes mentioned therein. Then comes sub-rule (2) which gives power to the Central Government or the State Government to direct by general or special order that any person or persons engaged in any employment to which sub-rule (1) applies shall not depart out of such area or areas as may be specified in such order. An order under this sub-rule has to be published in such manner as the Government making the order considered best calculated to bring it to the notice of the persons affected by the order. It will be seen that sub-rule(2) is consequential to sub-rule (1). It does not however apply of its own force and the Central Government or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see that there is a contented labour force during an emergency so that essential services as specified in sub-rule (1) or declared by a notification thereunder are maintained. Then follows sub-rule (5) which lays down punishment for contravention of any of the provisions contained in r. 126- AA. This analysis of r. 126-AA shows that it is a provision for maintenance of essential services during an emergency, and it is with that object that various powers are conferred on the Central Government or the State Government including the power of regulating wages and other conditions of service of persons engaged in essential services indicated in sub-r. (1) or declared to be such thereunder. It is with this background of emergency that we have to construe the provisions contained in sub-r. (1) and also sub-r. (4) with which we are particularly concerned in the present appeals. Turning first to stb-Rule (1), we have already indicated that this sub-rule by its own force declares all employments under the Central Government or the State Government to be essential services for its purposes. Besides these two classes of employment,,, the Central Government or the State Government has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of securing public safety. The notification, as it reads, indicates that in the opinion of the Governor these employments were essential for both purposes. We do not think therefore that the High Court was right in holding that as the notification does not show which employment was essential for which purpose, the Governor had not applied his mind and the notification was therefore colourable and mala fide in law. We may also refer to a ground which was urged in the High Court, namely, that the notification was issued for the purposes of defence also as stated in the counter- affidavit of the appellant, though the notification itself did not mention defence at all. The High Court thus thought that defence had been introduced in the counter- affidavit as one of the grounds for making the declaration while there was no mention of it in the notification itself, and that also showed that there was no application of mind by the Governor to the conditions precedent to the issue of the notification under sub-r. (1). It appears that in some of the writ petitions defence was introduced by the petitioners as a -round for the issue of the notification of sub-r. (1); so in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the, opinion was formed at all before the issue of the. notification. To this again, there can be no exception. Finally, the High Court held that it was open to the court to see whether the opinion was relevant and germane to the circumstance% which fell to be considered under the rule and whether they were such as could possibly and rationally support the conclusion drawn by the authority. Having thus stated the law correctly, the High Court con- sidered whether it could be said in this case that the conditions precedent had been satisfied before the issue of the notification under sub-r. (1) and came to the conclusion that they were not satisfied, mainly because two purposes were mentioned as the basis of the notification and a large number of employments, were included in one notification, as already pointed out by us above. We are of opinion that both these grounds for holding that the conditions precedent to the issue of the notification under sub-r. (1) have not been fulfilled cannot be sustained. As the notification reads, it shows that the employments mentioned therein were essential for both purposes and this must be held to be the opinion of the Governor. That opinion c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion we find is veneer mills. Veneering, v. understand, is a process by which thin flat plates or slips of file wood or other suitable material are applied to other inferior wood in cabinet work or similar other furniture. In the Concise Oxford Dictionary, the word veneer means cover (wood, furniture etc.) with thin coating of finer wood, and that is the meaning which must be given to veneer mills as entered at No. 5 of the notification for that entry is employment in plywood and veneer mills . Veneering, we understand, is done for the purpose of beautifying furniture etc. We fail to see how veneer mills which carry on this process of laying finer wood on inferior wood for purposes of beautifying furniture etc. can be said by any reasonable man to be essential for the maintenance of supplies and services necessary to the life of the community and for securing- public safety. It is open to us to strike down the notification tinder sub-r. (1) with respect to veneer mills alone, for the present notification including a large number of employments can be read to amount to so many single notifications, relating to each employment, rolled into one. Therefore, as we see the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uck them down on the ground that there was nothing in the two notifications to show that it was necessary to pay cost of living allowance which comes within the ambit of the words regulation of wages' for purposes of securing public safety and maintaining supplies and services necessary to the fife of the community and that those purposes would be achieved by the notification. The High Court also seems to have struck down the notifications on the ground that action should have been taken under the Minimum Wages Act and thus the power exercised under sub-r. (4) of r. 126-AA was a colourable exercise of power. For these two reason, the High Court also held that the notifications were mala fide in law, though there was nothing to suggest that they were in fact mala fide. We cannot agree with the High Court that it was necessary to recite in the notifications under sub-r. (4) that action was being taken thereunder for the purpose of securing public safety and for maintaining supplies and services necessary to the life of' the community. Nor do we think that sub-r. (4) requires that notifications should show that the two purposes would in fact be achieved by the provision made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s analogous to the power of industrial tribunals and enables Government to interfere with contractual relations between employers and employees and even in many cases with relations between employers and employees established by industrial awards. It is therefore urged that when there is nothing express in sub-r. (4) to show that the power thereunder can be exercised merely on the subjective satisfaction of Government it should be held that power thereunder can only be exercised after consolation with employers and employees concerned. On the other hand it is urged on behalf of the appellant that these powers are meant to be exercised in a real emergency and therefore though the powers conferred by sub-rule (4) are analogous to the powers of industrial tribunals they are still meant to be exercised on the subjective satisfaction of Government. It is submitted that in a real emergency it would not be possible for Government to go through the elaborate procedure of industrial tribunals, for a real emergency may require immediate action. Learned counsel for the appellant also referred to certain other provisions of the Rules where according to him there was no express provision wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the manner of the exercise of power, what things are affected by such exercise and how, and other relevant factors, in the context of the particular provision, may have to be considered in deter- mining whether the power envisaged can be exercised merely on the subjective satisfaction of Government or other authority, or there are to be some objective tests before the power can be exercised. The intention of the legislature is primarily to be gathered from the language used and where the language used is plain and unambiguous, effect must be given to it and there is nothing more to be said. But where the language is not clear, all these factors must be weighed to arrive at the final conclusion whether the power conferred depends entirely on the subjective satisfaction of Government or the authority concerned or there have to be some objective tests before the power can be exercised. It is on the basis of these principles that we have to decide whether sub-r. (4) gives power to Government to regulate wages and other conditions of service purely on its subjective satisfaction. We have already set out sub-r. (4) and a perusal of its language will show that there is nothing in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-r. (4) may be exercised instead of referring industrial disputes relating to wages and other condition., of service to industrial tribunals. We are also not unmindful of the fact that in a real emergency, decisions may have to be taken quickly and delay inevitable in the elaborate procedure provided for resolution of industrial disputes by industrial tribunals may not be desirable. Even so in the absence of express words in sub-r. (4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be prepared to hold that that is what sub-r. (4) indicates. We have already said that the effect of sub-r. (4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub-r. (4) it should even in a real emergency consult the interests concerned before taking action thereunder. It is not for us to indicate in detail what should be the procedure adopted by Government in a real emergency to consult the interests concerned, as that is a matter for Government to evolve for itself. But we may indicate that some kind of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment, in effect the Government had consulted the interests concerned before issuing the two notifications under sub-r. (4) and therefore the two notifications should be upheld. In this connection, an affidavit was filed on behalf of the appellant in this Court and the contention that there was consultation is based on that affidavit. The facts stated in that affidavit are these. Soon after the Chinese invasion in 1962, the Labour Minister Assam called an emergent meeting at Gauhati of the representatives of employers and workmen. 49 persons including about 17 representatives of employers attended the meeting. Unanimous resolutions were passed exhorting the employers and workmen to keep industrial peace and it was resolved to set up a Sub-Committee for the purpose of working out details of a machinery to be set up for adjustment of D.A. to neutralise any rise in the cost of living. A Sub- Committee consisting of three officials, three representatives of employers and three of workmen was set up. This Sub-Committee submitted its report in July 1964 and evolved a formula to neutralise any rise in working class cost of living of workers getting a salary of ₹ 400/- or less. Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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