TMI Blog1961 (11) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... latter part of clause 6 and clause 7 as well as the explanation added to it are held to be ultra vires. The first part of the finding is challenged by the petitioners in the two writ petitions by their Civil Appeals Nos. 415 and 417 respectively, while the latter part of the findings is challenged by the State of Maharashtra in its Civil Appeals Nos. 416 and 418 respectively. Thus, Civil Appeals Nos. 415 and 416 are cross appeals and Civil Appeals Nos. 417 and 418 are cross appeals. These appeals have been brought to this Court with a certificate granted by the High Court under Art. 132(1) of the Constitution of India - Article 132(1) As will presently appear the only point which calls for our decision in these appeals is one relating to the validity of the impugned notification; and so the certificate might well have been given under Art. 133(1)(c) and not under Art. 132(1) because the case does not involve a substantial question of law as to the interpretation of the Constitution. For convenience we will refer to the petitioners in the writ petitions as petitioners and the State of Maharashtra as the respondent in these appeals. 2. The petitioners are bidi manufacturers in dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said clauses purported to make provisions for the settlement of disputes between the employer and the employee concerning an Industrial matter and were outside the purview of the respondent's power under the relevant sections. They urged that the different provisions of the notification were so interrelated that it was difficult to dissociate one from the other and so it was necessary that the notification as a whole should be quashed. 4. The respondent disputed the correctness of the contentions raised by the petitioners. It urged that there were constant disputes among bidi manufacturers and bidi workers regarding the minimum wages fixed in the Vidarbha region and so the respondent thought it necessary to institute an enquiry into these complaints in order to decide whether it was necessary to revise the minimum wages prescribed by the earlier notification and the mode of determining those wages. It was only after a comprehensive enquiry was held at which all parties were heard that the respondent issued the notification in question. Its case was that the minimum rates of wages had been fixed on industry cum- region wise basis and that cls. 3 to 7 were intended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of the Act. Section 2(h) defines wages and it prescribes intra alia, that 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 the items specified by cls. (i) to (v) of the said definition. Section 3 authorises the appropriate Government to prescribe different minimum rates of wages for different scheduled employments, different classes of work in the same scheduled employments, adults, adolescents, children and apprentices and different localities. Under s. 4 are prescribed the components of the minimum rates of wages. Section 5 provides for the procedure for fixing and revising minimum wages. Section 7 provides, inter alia, that minimum wages payable under the Act shall be paid in cash. Under s. 12 an obligation is imposed on the employer to pay every one of this employees engaged in the scheduled employment wages at a rate not less than the minimum rate of wages fixed by the notification issued in that behalf. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 decided 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 employer 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 to 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a recognised practice of making payment on the basis of bidis accepted by employers as coming up to a certain standard of skill . It is further admitted that the employers have insisted on their right in principle of rejecting the sub-normal or sub-standard bidis prepared by the employees. Thus, there is no doubt that under the terms of the contract the workers are entitled to receive payment only for the bidis accepted by the employers, and not for those which are rejected. It is also not disputed that the bidis which are rejected by the employers otherwise known as chhats are retained by the employer though he refuses to take them into account in the matter of payment to the workers on the ground that they do not come up to the standard of skill or quality prescribed by the contract. 12. It also appears to be true that the employees in this region have been protesting against improper rejection of the bidis by the employers. They have contended that the employers reject an unreasonably high proportion of bidis falsely dubbing them as of sub-normal quality without paying anything to the workers for their labour spent in rolling such rejected bidis. In its affidavit the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the relevant provisions of the Act confer upon the respondent the power to check the evil against which the workers complain then of course the validity of the impugned clauses would be beyond challenge. If, on the other hand, the power to prescribe or revise minimum rates of wages does not either expressly or by necessary implication include the power to provide for the machinery to check the evil in question, then the impugned clauses would be ultra vires however necessary it may be to check and control the said evil in question. 14. In this connection let us broadly examine the scope and effect of the impugned clauses. Clauses 1 and 2 prescribe the revised minimum rates district wise and provide for the payment of higher price for the bidis known as Hatnakhun bidis in all the said districts. These two clauses are obviously valid and the petitioners have not disputed the conclusion of the High Court in that behalf. Clauses 3 to 6 deal with the problem of the Chhat bidis or bidis which are rejected because they are bad. Clause 3 leaves it to the discretion of the employer to decide which are chhat bidis up to 5 percent of the bidis prepared by the employees. This clause provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made reasonably and for a proper cause the employer has to pay for the discarded work as therein prescribed; the only right given to the employer in such a case is to take suitable action against the employee if the chhat is more than 10 per cent and that too for six continuous working days in a calendar month. Prima facie this clause appears to be unreasonable and unjust. 17. The explanation to clause 7 is also criticised by the petitioners because thekedar, contractor or agent, who is appointed by the employer would, if the explanation is valid, be liable to perform all the obligations imposed on the employer by the relevant provisions of the Act such as Sections 12 and 18. We have examined the broad features of the notification and indicated the comment made on it by the petitioners for the purpose of showing that on the merits some of the clauses do not appear to be fair and just, but that is not the ground on which their validity can be or has been challenged before us. The main argument in support of the challenge rests on the assumption that cls. 3 to 7 are all beyond the powers conferred on the respondent by the relevant provisions of the Act; and it is this argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt provisions under which it purports to act, and the validity of the impugned notification must therefore be judged not by general considerations of social justice or even considerations for introducing industrial peace; they must be judged solely and exclusively by the test prescribed by the provisions of the statute itself. It appears that in 1956 before Vidarbha became a part of the State of Bombay the State Government of Madhya Pradesh had made a comprehensive reference for the arbitration by the State Industrial Court between the bidi manufacturers of Bhandara District and their employees. In this dispute all the material issues arising from the prevailing practice which authorised employers to reject chhat bidis had been expressly referred for adjudication. Subsequently, when the impugned notification was issued the respondent apparently took the view that what could have been achieved by reference to the arbitration of State Industrial Court may well be accomplished by issuing a notification under s. 5 of the Act. It may be that there is substance in the grievance made by the employees that the practice of rejection chhat bidis often leads to the injustice and deprives them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay his employee a much higher rate of wages and the higher rate of wages thus prescribed would be deemed to be the minimum rate of wages between the parties. 21. It would, however, be noticed that in defining wages clause 2(h) postulates that they would be payable if the other terms of the contract of employment are fulfilled. That is to say, in authorising the fixation of minimum rates of wages the other terms of the contract of the employment have always to be fulfilled. The fulfilment of the other terms of the contract is a condition precedent for the payment of wages as defined under s. 2(h) and it continues to be such a condition precedent even for the payment of the minimum rates of wages fixed and prescribed by the appropriate Government. The significance of the definition contained in s. 2(h) lies in the fact that the rate of wages may be increased but no change can be made in the other terms of the contract. In other words, the Act, operated on the wages and does not operate on the other terms of the contract between the employer and the employee. That is the basic approach which must be adopted in determining the scope and effect of the powers conferred on the approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the true scope and effect of the doctrine of implied power. 23. One of the first principles of law with regard to the effect of an enabling act , observes Craies, is that if a 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 purposes in view [Craies on Statute Law, p. 239] . The principle on which the doctrine is based is contained in the legal maxim 'Quando lex aliquid concedit concedere videtur et illud sine qua res ibsa ease non potest'. This maxim has been thus translated by Broom thus : whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect . Dealing with this doctrine Pollock, C.B., observed in Michaely Fenton and James Fraser v. John Stephen Hempton (1858) 117 R.R. 32, 11 Moo. P.C. 347. 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 bastow, I take the matter to stand thus : Whenever anything is authorised, and especially if, as matter of duty, require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the provisions of the statute are quite clearly against the assumption of such implied power. The definition of the term wages postulates the binding character of the other terms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term wages can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act. When the said other terms of the contract are outside the scope of the Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers ? 25. Besides, in this connection it is also necessary to bear in mind the provisions of Sections 20 and 21 of the Act. These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages. If for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employees can make a claim in that behalf and the same would be tried under Sections 20 and 21. Therefore the Act has ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 20 and 21 or under other provisions of the law. It is true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed, but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act, and therefore beyond the powers conferred on it by s. 5. The proper remedy in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred on the respondent by s. 5 of the Act and must therefore be declared to be ultra vires. It is common-ground that these clauses are severable from cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses. 27. In the result Civil Appeals Nos. 415 and 417 are allowed and Civil Appeals Nos. 416 and 418 are dismissed. Respondent to pay the costs of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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