judgement:
Civil Appeals Nos.
415 418 of 1960.
Appeals from the judgments and orders dated September 23, 1958, of the Bombay High Court in Special Civil Applications Nos. 205 and 214 of 1958.
383 A. V. Viswanatha Sastri, section P. Verma, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants (in C. A. No. 415 of 1960).
A. section Bodde and Ganapat Rai, for the appellants (in C. A. No. 417 of 1960) and respondents (in C. A. No. 418/60).
H. R. Khanna and R. H. Dhebar, for the appellants (in C. As.
Nos. 416 and 418 of 1960) and respondent No. 1 (in C. As.
Nos. 415 and 417 of 1960).
A. G. Ratnaparkhi, for respondent No. 3 (in C. A. No. 415 of 1960).
1961 November 15.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These four appeals consist of two sets of cross appeals each and they arise from two petitions filed in the High Court of Bombay at Nagpur challenging the validity of the notification dated June 11, 1958, issued by the State of Bombay, now represented by the State of Maharashtra, under section 5 of the , ( 11 of 1948) (hereafter called the Act.) The petitioners in Special Civil Application No. 205 of 1958 are the Bidi, Bidi Leaves and Tobacco Merchants ' Association, Gondia and two others, whereas the petitioners in Special Civil Application No. 214 of 1958 are Haji latif Ghani Kachhi and five others.
The impugned notification consists of seven clauses.
By the majority decision of the High Court cls.
1 to 5 and the first part of cl. 6 are held to be intra vires, whereas the latter part of cl. 6 and cl. 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 finding 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 384 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 article 132(1) of the Constitution.
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 article 133 (1)(c) and not under article 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.
The petitioners are bidi manufacturers in different parts of the Vidarbha region and they employ a large number of persons for the purpose of making bidis for them.
It appears that the Government of the State of Madhya Pradesh within whose jurisdiction Vidarbha was then situated had fixed the minimum rates of wages in respect of employment in tobacco (including bidi making) manufactories by issuing a notification on January 11, 1951.
This notification had purported to fix the minimum rates of wages per 1000 bidis by reference to different localities in the State.
The rates thus fixed were inclusive of dearness allowance or compensatory cost of living allowance and they varied from place to place as specified in columns 2 to 4 of the notification respectively.
An Advisory Board was thereafter constituted by the said State in exercise of the powers conferred on it by section 7 of the Act.
Subsequently, in 1956 the said minimum rates of wages were revised by a notification issued on February 23, 1956.
As a result of the State Reorganisation Act, 1956 (37 of 1956) the Vidarbha region became part of the State of Bombay.
After Vidarbha thus became a part of the State of Bombay the Government of Bombay notified that the Advisory Board appointed by the said Government 385 under section 7 shall be the Advisory Board for Vidarbha.
This notification was issued on November 1, 1956.
The Government of Bombay then issued a notification publishing the draft of the notification which was proposed to be issued under section 5, sub section
(2) read with cl.
(b) of sub section
(1) of section 5, and notice was thereby given to all the bidi manufacturers that the said draft would be taken into consideration on or after March 1, 1957.
Thereafter the procedure prescribed by section 5 was followed, an enquiry was held, a report of the Advisory Board was received and finally the impugned notification was issued on June 11, 1958.
It is the validity of the several clauses contained in this notification that is challenged before us in the present appeals.
In their petitions the petitioners alleged that cls.
3 to 7 of the notification were invalid and ultra vires the powers of the respondent under sections 3, 4 and 5 of the Act.
According to them the respondent had no power to make provision for deciding as to the extent to which "chhat" will be permitted or directing the action to be taken by the employer and employee relating to bad bidis.
Their contention was 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.
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 386 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 regionwise basis and that cls.
3 to 7 were intended to make the fixation of minimum rates of wages effective.
According to the respondent, the absence of any rules regarding the exercise of the right of "chhat" by the employers tends to deprive the bidi workers of their right of getting minimum rates of wages, and so cls.
3 to 7 were deliberately introduced to make the material provisions of the Act effective in their implementation.
These petitions were first heard by Mudholkar and Kotval, JJ.
Mudholkar, J. held that all the clauses in the impugned notification were valid for, according to him, though the Act had not conferred express powers on the respondent to prescribe the impugned clauses of the notification yet the respondent could prescribe the said rules under the doctorine of implied powers.
Kotval, J., agreed that cls.
1 and 2 were valid but he thought that even under the doctrine of implied powers the remaining cls.
3 to 7 could not be sustained.
According to him the said clauses were, however, severable from cls.
1 and 2 and so they should be struck down leaving cls. 1 and 2 in tact.
Since there was a difference of opinion between the two learned judges the matter was referred to Tambe, J. He held that cls.
1 to 5 and the first part of cl. 6 were intra vires where as the latter part of cl. 6 and cl. 7 as well as the explanation added to it were ultra vires.
After Mr. Justice Tambe pronounced his judgment the matter was again referred to a Division Bench, and the Division Bench, in accordance with the majority opinion, has upheld the validity of cls.
1 to 5 and 387 the first part of cl. 6 and has struck down the latter part of cl. 6 as well as cl. 7 and its explanation.
It is against this decision that the petitioners and the respondent have come to this Court with a certificate granted by the High Court in that behalf.
Before dealing with the merits of the controversy between the parties it would be relevant to refer to the material provisions of the Act.
The Act was passed in 1948 in order to provide for fixing minimum rates of wages in certain employments.
Its provisions apply to the scheduled employment which expression under section 2 (g) means an employment specified in the schedule, or any process or branch of work forming part of such employment.
It is common ground that employment in any tobacco (including bidi making) manufactory is a scheduled employment under the schedule of the Act.
Section 2(h) defines wages and it prescribes inter 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 section 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 section 12 an obligation is imposed on the employer to pay every one of his employees engaged in the scheduled employment wages at a rate 388 not less than the minimum rate of wages fixed by the notification issued in that behalf.
Section 12 (2) saves the application of the provisions of the payment of wages Act.
Section 20 authorises the appropriate Government to appoint an authority to hear and decide for any specified area all claims arising out of the payment of less than the minimum rates of wages and other claims specified therein.
The remaining sub sections of the said section prescribe the procedure for determining such claims.
Under section 21 a single application can be made in respect of a number of employees who wish to prefer a claim for the decision of the authority under section 20.
Section 22 prescribes penalties for the offences therein specified.
Section 22A provides that if any employer contravenes any of the provisions of the Act or any rule or order made thereunder he shall, if no other penalty is provided for such contravention, be punishable with fine which may extend to five hundred rupees.
Section 22B provides, inter alia the manner in which Courts may take cognizance of a complaint against any person for an offence committed under the Act.
That in brief is the scheme of the material provisions of the Act.
At this stage it would be necessary to read the several clauses of the impugned notification : "No. MWA.
1557 J.
In exercise of the powers conferred by sub section (2) of section 5 read with clause (b) of sub section (1) of that section of the (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 23rd 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 Vidarbha region of the State of Bombay 389 as mentioned in the Schedule hereto annexed and directs that this notification shall come into force with effect from 1st 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 District . 1.56 2.
For all bidis in which 7 chhataks or more of tobacco mixture is used and for those bidis which are known as "Hatnakun" bidis, there shall be an increase of 12 Naye Paise per 1000 bidis in the rates mentioned above in all the areas.
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 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.
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 390 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 to 10 per cent at half the rates fixed above.
If the employee does not want to retain these bidis the employee shall destroy them forthwith.
The employer shall nominate his representatives and the employees shall elect their representatives.
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 a calendar month.
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 thekedar, contractor or agent as the case may be. ' The validity of cls.
1 and 2 is not in dispute.
The petitioners, however, contend that cls.
3 to 7 are outside the powers conferred on the respondent by the relevant provisions of the Act and as such are invalid.
It is common ground that even if the impugned clauses are held to be ultra vires they are 391 severable from cls.
1 and 2 so that the invalidity of the impugned clauses will not affect the validity of the said two clauses and they will stand even if the other clauses are struck down.
In determining the question about the validity of the impugned clauses it is necessary to refer to two material facts.
The nature and scope of the terms of contract between the petitioners and their employees are really not in dispute.
It is alleged by the petitioners that they employ a large number of persons for the purpose of making bidis for them, that these persons are supplied with tendu leaves, tobacco and other necessary materials, they take the said articles to their respective places where they work and brings back the bidis prepared by them to the employer.
The employer then examines the bidis ' accepts such of them as are found to have been prepared according to the terms of the contract rejects such of them as are found to be of poor quality and not prepared according to the terms of the contract and pays for the bidis actually accepted.
The respondent has not traversed these allegations made by the petitioners.
It admitted that the workers are paid on piece rate basis and the payment is made "on the basis of bidis selected and accepted by the employer after rejecting certain portions of bidis prepared by the workers".
In fact the respondent has expressly stated that "there is 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 392 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.
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 respondent has emphasised that as a result of to is method of discarding bidis on the ground that they are of sub standard quality bidis workers were deprived of the labour charges for bidis which are rejected by their employers; and so it was urged that the question of fixing maximum rates of wages for bidi workers necessarily involved the question as to the quantum or percentage of such rejection which should be permissible to the employer.
According to the respondent the impugned notification has purported to fix the minimum rates of wages after taking into consideration the problem presented by the practice of discarding bidis and paying wages to the workers only for such bidis as are accepted.
In support of the validity of the notification the respondent also relied on the fact that the formula prescribed by the notification had been evolved after taking into account the representations made both by the employers and the employees.
In fact, according to the respondent, this said formula represented a substantial degree of agreement between the parties on this point.
It would thus be seen that on the two material facts there is really no serious dispute between the 393 parties.
The respondent agrees that under the practice which must be taken to be consistent with the implied terms of contract between the bidi manufacturer and his employee, after the bidis are prepared by the employees and brought back to the employer the employer has a right to examine the quality of the bidis, accept only such as have come up to the standard prescribed by the contract and reject the rest.
The practice further justifies the payment of wages to the employees only for the bidis actually accepted and not for those which are rejected though the rejected bidis may be retained by the employer.
On the other hand, it is not, and cannot be seriously disputed by the petitioners that in some cases this practice may work great hardship on the workers, and in every case the workers do not get wages for the labour put by them in rolling the rejected bidis.
The main question which arises for our decision in the present appeals is whether the injustice resulting from the practice of discarding bidis and not making any payment for them to the workers can be checked, controlled and regulated by the respondent by issuing a notification under the powers conferred on it by section 5 of the Act.
If 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.
In this connection let us broadly examine the scope and effect of the impugned clauses.
Clauses 1 and 2 prescribe the revived minimum rates districtwise and provide for the payment of higher 394 Price for the bidis known as Hatnakhun bidis in all and 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 that 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 provides that the bidis to rejected would be destroyed and tobacco recovered from them retained by the employer; and it adds that if the employer wants to retain the rejected bidis he shall pay full wages for the same to the employee.
In other words this, clause means that the employer may discard bidis up to 5 percent but if he does not want to pay the workers for the said bidis he must destroy them.
That would show that the discretion exercised by him is honest and fair.
If, on the other hand, he wants to retain the said bidis that would mean that he thinks that the bidis would find a market and in that case he must pay for them on the basis that they are good bidis.
On principle this provision may perhaps not be open to any serious criticism and it is not unlikely that if the notification had not made further detailed provisions by cls.
4 to 6 the present dispute would not have been brought before the High Court.
The employers probably do not have a serious grievance against cl. 3 on the merits.
Clause 4 deals with cases where the rejection may be more than 5 per cent but less than 10 per cent of total work produced by the worker.
In regard to this class of cases cl. 4 provides for a machinery to deal with cases falling under it.
Representatives of the employers and employees have to be appointed and they have to decide whether the work have been properly done or not.
The decision would be according to the opinion of the majority.
If the opinion is equally divided 395 and the employer wants to retain the chhat bidis, between 5 per cent to 10 per cent he shall pay at half the rates fixed in cl. 1.
If the employer does not want to retain them the employees shall destroy them, The clause does not seem to provide for 3 7 case where the majority opinion may support the rejection between 5 per cent and 10 percent; that is a lacuna in the clause.
The only comment which can be legitimately made against the clause on its merits is that the setting up of the machinery for a kind of adjudication of the dispute between the employer and the employee may, instead of solving the difficulties in actual working, add to them.
That takes us to cl. 6.
This clause has been very severely criticised by the petitioners.
It provides that in case of chhat about 10 per cent the employees shall be entitled to full wages which means that even if chhat above 10 per cent 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.
The explanation to cl. 7 is also criticised by the petitioners because the 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 396 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 which needs to be examined.
It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act, 1947(14 of 1947) is given wide powers and jurisdiction to make appropriate awards in determining in industrial disputes brought before it.
An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co operation between them.
Such an award may even alter the terms of employment if it is thought fit and necessary to do so.
In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract.
Mukherjee, J., as he then was, has observed in The Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement.
It has not merely to interpret or given effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace." since the decision of the Federal Court in Western India Automobile Association vs Industrial Tribunal, Bombay, it has been repeatedly held that the jurisdiction of industrial tribunals if much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd., vs Brijnandan Pandey; The Patna Electric Supply Co. Ltd., Patna vs The Patna Electric Supply Workers Union.
Indeed, during the last ten years and more 397 industrial adjudication in this country has made so much progress in determining industrial disputes arising between industrial of different kind and their employee that the jurisdiction and authority of industrial tribunals to deal with such disputes with the object of ensuring social justice is no longer seriously disputed.
But, it is necessary to remember that no claim can be made for such broad jurisdictional power by the respondent when it purports to issue a notification under the provisions of the Act.
These powers and authority would necessarily be conditioned by the relevant 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 Madhdya Pradesh had made a comprehensive reference for the arbitration by the State Industrial Court between the bidi manufacturers of Bhandara District and their employee.
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 section 5 of the Act.
It may be that there is substance in the grievance made by the employees that the practice of rejecting chhat bidis often leads to the injustice and deprives them of the wages legitimately earned by them by rolling the said bidis and there can be no doubt that if a comprehensive reference is made for the decision of 398 this industrial dispute between the bidi manufacturers and their employees an award may well be passed which will resolve this dispute; but the question which falls for our decision is whether the relevant provisions of the Act authorised the State Government to make rules for the decision of the dispute in that behalf and for the payment of minimum rate of wages on the basis of such decision? In our opinion, the answer to this question has to be in the negative.
What is the extent of the authority conferred on the respondent in fixing or revising minimum rates of the wages under the relevant provisions of the Acts In dealing with this question we must necessarily bear in mind the definition of the term "wages" prescribed by section 2(h).
As we have already been the term "wages" includes remuneration 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.
In other words, the terms "wages" refers to remuneration payable to the employee as a result of the terms of employment.
What would be the amount to which the employee is entitled if the other terms of the contract are preferred ? That the question which has to be asked in determining what the term "wages" means under (h).
No doubt sections 3, 4 and 5 authorised the appropriate Government to fix the minimum rates of wages.
In other words, if the wages fixed by a contract which is either express or implied are found to be low authority is conferred on the appropriate Government to increase them so as to bring them to the level of what the said Government regards as the minimum wages in the particular scheduled employment in the particular area concerned.
This means that power is conferred on the appropriate Government to modify one term of the contract express or implied between the employer and the 399 employee and that is a term which has reference to the payment of wages.
If for a certain piece of work done by the employee the employer has agreed to pay him either expressly or by implication a certain amount of wages the appropriate Government can issue a notification and prescribe that for the said work done under the contract the employer must pay 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.
It would, however, be noticed that in defining "wages" cl. 2(h) postulates that they would be payable if the other terms of the contract of employment are fulfilled.
That is to say, authorising the fixation of minimum rates of wages the other terms of the contract of employment have always to be fulfilled.
The fulfillment of the other terms of the contract is a condition precedent for the payment of wages as defined under section 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 section 2(h) lies in the fact that the, rate of wage may be increased but no change can be made in the other terms of the contract.
In other words, the Act operated on the other terms of the Contract 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 appropriate Government by the relevant provisions of the statute authorising it to prescribe fix or minimum rates of wages or to revise them.
What the appropriate Government is authorised to do is to proscribe, fix or revise wages and wages are defined to be remuneration payable to the employees if the terms of the contract of employment, express or implied, were fulfilled.
400 This definition runs, as it inevitably must, through the and the material provisions of the Act and its importance cannot therefore be ignored.
Bearing this fact in mind let us examine the impugned clauses of the notification.
Clauses 1 and 2 clearly fall within the purview of the power conferred on the respondent because they do no more than prescribe the minimum rates of rates as therein specified; out cls.
3 to 7 clearly and unambiguously purport to deal with the terms of the contract between the parties other than that relating to the remuneration.
These clause are obviously intended to deal with the dispute between the employers and their employees as to how bidis should be discarded and in that proportion and what should be the procedure to be followed in regard to the? payment for such discarded bidis.
In appreciating the true effect of these clauses it is necessary to recall that the parties are agreed about the practice at present prevailing which must be taken to represent the terms of the contract either express or implied.
According to the said practice the employer decides which bidis should he discarded, he retains the discarded bidis and pays only for such bidis as are accepted be him.
It if plain that the impugned clauses of the notification purport to modify these terms in material particulars and that and be plainly outside the jurisdiction of the authority of the respondent.
It may well form the subject matter of reference for industrial adjudication but it cannot form the subject matter of a notification prescribing minimum rates of wages under sections 3, 4 or 5.
It is conceded by the respondent that there is no express provision in the act, which authorised the setting up of the machinery as prescribed by cls.
3 and 4 or for laying down the manner in which the employer should make payment for the discarded bidis.
It is, however, strenuously urged that the validity of these clauses should be upheld on the ground of the 401 implied power of the respondent; and that takes us to the question as to the true scope and effect of the doctrine of implied power.
"One of the first principles of law with regal 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(1)".
The principle on which the doctrine is based is contained in the legal maxim 'Quando lex aliquid concedit concedere videtur et illud sine quo 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 vs John Stephen, Hempton "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, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be else done, then that something will be supplied by necessary intendment." This doctrine can be invoked in cases "where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means as are essentially necessary to its execution (3).
" In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some 402 auxiliary or incidental power is assumed to exist.
In such a case, in the absence of an implied power the statute itself would become impossible of compliance.
The impossibility in question must be of a general nature as that the performance of duty or the exercise of power is rendered impossible in all cases.
It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied.
This position in regard to the scope and effect of doctrine of implied powers is not seriously in dispute before us.
The parties are at issue, however, on the question as to whether the doctrine of implied powers can help to validate the impugned clauses in the notification.
The respondent strenuously contends that cls.
1 and 2 of the notification which have prescribed the minimum rates of wages per 1000 bidis would become ineffective unless cls.
3 to 7 supplement them.
The argument is that by improper or dishonest exercise of the power conferred on the employer by the contract of employment to discard chhat bidis the employees would be cheated of their legitimate due wages under cls.
1 and 2 and so, in order to make the provisions of cls. 1 and 2 effective some subsidiary provisions had to be made for settling the dispute between the employer and his workmen in regard to chhat bidis.
As we have already observed, the grievance made by the employees on the score of improper rejection of bidis may in many cases be well founded; but the seriousness of the said grievance and the urgent necessity to meet it would hardly be a proper basis for invoking the doctrine of implied power where the provisions of the statute are quite clearly against the assumption of such implied power.
The definition of the term "wheres" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one 403 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 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 made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications.
The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes.
Clauses 1 and 2 of the notification have prescribed the revised minimum rates of wages.
If, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by section 20.
That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in the notification.
There is yet another consideration which is relevant in dealing with the question about the implied powers.
The doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement.
In the present 404 case all that section 5 requires is the fixation of minimum rates of wages, and that has been done by the notification by cls. 1 and 2.
What the subsidiary clauses purport to do is to make the enforcement of the fixed rate effective by providing for a machinery to deal with the possible disputes arising between the parties as a result of the practice of discarding chhat bidis.
In other words, cls. 1 and 2 fix the minimum rates of wages and thus section 5 has been complied with and enforced.
The remaining clauses purport to make the implementation of the provisions of cls. 1 and 2 effective.
That is very different from giving effect to section 5 itself.
The enforcement of the notification is clearly not the same thing as exercising the power of fixing or revising the minimum rates of wages under section 5.
A Power may be implied, if necessary, in discharging the duty imposed upon the appropriate Government or in exercising the power conferred on the State Government in the matter of fixing or revising the minimum rates of wages; but surely no power can be implied for making effective the implementation of the notification issued under the said power or in the discharge of the said duty.
The purpose of the Act cannot be said to have failed after the minimum rates of wages are prescribed and notified.
What may turn out to be ineffective is the provision for payment of the said wages by reason of the rejection of good bidis; but that is a matter of an industrial dispute which has to be adjudicated upon under 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 section 5.
The proper remedy 405 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 section 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.
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 petitioners in Civil Appeals Nos. 415 and 417.
One set of hearing cost.
C.A. Nos. 415, 417, allowed.
C.A. Nos. 416, 418 dismissed.

summary/full:
By section 3 of the , the appropriate Government is authorised to fix minimum rates of wages for employees in the Scheduled employments and section 5 lays down the procedure for fixing and revising such minimum wages.
The State Government published a notification dated June 11, 1958, fixing minimum rates of wages in respect of employments in bidi making in the Vidarbha region.
Clauses 1 and 2 of the notification prescribed the minimum rates district wise and provided for higher rates for making bidis known as 'Hatnakhun ' in all the districts.
Clauses 3 to 7 dealt with disputes between the employers and the employees as to how bad bidis were to be discarded and in what proportion and as to the payment for such discarded bidis.
The appellant contended that cls.
3 to 7 of the notification were ultra vires: ^ Held, that cls.
3 to 7 of the Notification were outside the purview of the powers conferred upon the State Government 382 by section 5 of the Act and were ultra vires.
The provisions of the Act empowered the Government only to fix minimum wages; they did not authorise it to make rules for resolving the disputes regarding the rejection of bad bidis and regarding the payments to be made for the rejected bidis.
The Act empowered the Government to fix the remuneration payable to an employee if the other terms of the contract were observed; it did not authorise the Government to vary the other terms.
Under the contract the employer was entitled to decide which bidis to discard, and to retain such bidis and to pay only for such bidis as were accepted by him.
Clauses 3 to 7 of the notification purported to modify these terms in material particulars and this was not within the power conferred by the Act upon the Government.
Nor could these clauses be justified on the basis of implied powers.
The doctrine of implied powers could only be invoked when it was found that a duty was imposed or a power conferred on an authority buy a statute and it was further found that the duty could not be discharged or the powers could not be exercised at all unless some auxiliary or incidental power was assumed to exist.
Even if cls.
I and 2 would become ineffective without cls.
3 to 7 being there that would not be a proper basis for invoking the doctrine of implied powers.
The definition of 'wages ' in section 2(h) of the Act postulated the binding character of the other terms of the contract and brought within the purview of the Act only the term relating to wages.
By implication the very basic concept of wages could not be ignored.
By sections 20 and 21 the Act makes specific provision for the settlement of claims in regard to payment of minimum wages and as such no powers could be implied in the Government to set up a separate machinery to settle such disputes.
Further no power could be implied to make cls.
1 and 2 of the notification effective: such power could only be implied if it was necessary to make section 5 of the Act itself effective.
Michael Fenton and James Fraser vs Jhon Stephen Hompton, (1957 59) 117 R. R. 21, referred to.


judgement:
Civil Appeals Nos. 185 to 187 of 1961.
Appeals by special leave from the judgment and order dated May 13, 1959, of the Patna High Court in Misc.
Judicial Case No. 352 of 1957.
WITH Petitions Nos. 163 to 165 of 1959.
Petitions Under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
M. C. Setalvad, Attorney General of India, Veda Vyasa and Naunit Lal, for the appellants/petitioners.
A. section R. Chari, D. P. Singh., M. K. Ramamurthi, R. K. Garg and section C. Agarwala, for the respondents.
500 1961.
November 20.
The Judgment of the Court was delivered by KAPUR, J.
The principal question raised in these appeals and petitions under article 32 of the Constitution is whether sugar cane falls within the term "green vegetables" and is therefore exempt from sales tax under the exemption given by the notification dated August 28, 1947, issued under section 6 of the Bihar Sales Tax Act 1947, (Bihar 19 of 1947), hereinafter called the 'Act '.
After hearing the arguments in these appeals and petitions we announced our decision dismissing them with costs and we now proceed to give our reasons for the same.
The three appeals by special leave are brought by the assessee and relate to assessment of sales tax for three years, 1950 51, 1951 52 and 1952 53 for which the amount of sales tax levied was Rs. 28,866, Rs. 23,383 and Rs. 23,298 respectively.
Besides the three appeals the assessee company has filed three petitions under article 32 challenging the constitutionality of the assessments.
In this judgment the appellant and the petitioner is a private limited company and it will be termed "appellant" and the State of Bihar which is respondent will be termed the "respondent".
The appellant took an objection to the assessment and filed appeals to the Deputy Commissioner of Commercial taxes and then a revision to the Board of Revenue and then at its instance the following question was referred by the Board of Revenue to the High Court for opinion: "Whether sugar cane is a green vegetable within the meaning of item 6 of notification No. 9884 FT dated 28 8 47 and as such exempt from taxation.
" The High Court answered the question against the appellant and held that "sugar cane" was not 501 included in the term "green vegetables" and it is the correctness of that answer which has been canvassed before us.
In the petitions under article 32 of the Constitution it was contended that the appellant being a producer of sugar cane was not a "dealer" within the meaning of the Act and therefore no tax was payable on sale of sugar cane by it.
The exemption under the Act is provided under section 6 of the Act which, at the relevant time, was as follows: section 6 "No tax shall be payable under this Act on the sale of any goods or class of goods specified in this behalf by the (State) Government by notification in the Official Gazette, subject to such conditions as may be mentioned in the notification: Provided no notification shall be issued under this section without giving in the Official Gazette such previous notice as the State Government may consider reasonable, of its intention to issue such notification.
" Under section 6 of the Act the notification relied upon was issued on August 28, 1947.
This was notification No. 9884 FT which was in the following terms: "In exercise of the powers conferred by section 6 of the Bihar Sales Tax Act, 1947 (Bihar Act XIX of 1947), and in supersession of the previous notifications on the subject the Governor of Bihar is pleased to direct that no tax shall be payable under the said Act on the sale of goods specified in the second column of the schedule hereto annexed subject to the exceptions, if any, set out in the corresponding entry in the third column thereof.
502 THE SCHEDULE Serial Description Exception subject to which the No. of goods.
exemption has been allowed.
1. . . . 2. . . . 3. . . . 4. . . . 5. . . . 6 Green vegetables Except when sold in sealed other than pota containers.
. . . . . . . . . . ." The question raised is that sugar cane falls within the term "green vegetables" in entry 6 of the Schedule and is therefore exempt from assessment to Sales tax.
In support of this contention counsel for the appellant relied upon a judgment of the for the appellant relied upon a judgment of the Bombay High Court, The State of Bombay vs R. section Phadtara (1) where it was held that sugar cane is "fresh vegetable" and is therefore exempt from sales tax under a similar notification issued under the Bombay Sales Tax Act.
Changla C. J., there observed at page 496 as follows: "In its plain and natural meaning a "vegetable" clearly is wide enough to cover "sugar cane"; but what is urged by the Advocate General is that we must not give it that wide meaning but must give it the popular meaning as under stood by people who deal in vegetables or eat vegetables, and it is urged that from that narrow and restricted point of view sugar cane is not vegetable.
This is a taxing statue and if in favour of that construction which gives relief to the subject.
That was exactly the 503 approch of the Sales Tax Tribunal and in our opinion that approach was a very proper one." This observation is not in accord with the opinion given by this Court in Ramaytar Badhriprasad vs Assistant Sales tax Officer, Akola (1) in which under an almost identical entry it was held that "betel leaves" is not included in the term "vegetables".
After quoting with approval a passage from the judgment of the Nagpur High Court, Madhya Pradesh pan Merchants Association vs State of Madhya Pradesh (2) this court said: "the word "vegetable" in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table.
" If that is the meaning of the word "vegetables" sugar cane cannot fail within entry 6 which relates to green vegetables.
In Webster 's dictionary "sugar cane" has been defined as "a grass extensively grown in tropical and warm regions for its sugar" and in Oxford dictionary it is defined as "a tall peronnial grass cultivated in tropical and sub tropical countries and forming the chief source of unmanufactured sugar".
Therefore it cannot be said that sugar cane falls within the definition of the words "green vegetables".
The second question which was raised before us and which arises in the petitions under article 32 is that the appellant company is not a "dealer" within the meaning of the word as defined in section 2(c) of the Act which is as follows: " "dealer" means any person who sells or supplies any goods (including goods sold or supplied in the execution of a contract) 504 whether for commission, remuneration or otherwise and includes any family or a Hindu joint family, the Government and any society club or association which sells or supplies goods to its members".
The words of this sub section are very wide and cover the case of the appellant and therefore this point is also without substance and must be rejected.
But it was argued that the definition of the word "dealer" in the Act which was amended by Bihar Annual Finance Act 1950 is applicable only for the financial year beginning April 1, 1950, and not for subsequent years and for that aid was sought from the preamble to the Bihar Annual Finance Act 1950.
That preamble is as follows: "whereas it is expedient to amend the Bihar Sales Tax Act, 1947, and the Bihar Agricultural Income Tax Act, 1948, to levy a tax on passengers and goods carried by public service vehicles and public carries and to lay down rates on Sales Tax payable under Bihar Sales Tax Act 1947 to fix limit of taxable agricultural income to lay down rates of agricultural Income Tax Act and Super Tax chargeable under Bihar Agricultural Income Tax Act, 1948 for the financial year beginning on the 1st day of April 1950 and to make further provisions in connection with the finance of this State of Bihar".
The preamble cannot limit or change the meaning of the plain words of s.2(c) of the Act which apply to the case of the appellant and therefore the amended section is applicable to the present case.
It is an erroneous approach to the question to say that because of the words "for the financial year beginning on the first of April 1950" in the particular context in the preamble, the definition of the word "dealer" was amended only for one year Nothing has been shown indicating that section 505 (2)(i) of Bihar Annual Finance Act intended to effect a temporary amendment in the previous definition of the word "dealer" in cl(c) of s.2 of the Act.
The contention is therefore repelled.
It was also submitted that the assent of the President was not given to the Bihar Annual Finance Act 1950.
In our opinion that submission is equally without force because tax on sale of goods is a matter entirely within entry 54 of the State List and the amendment made in the definition of the word "dealer" in the Act did not require the assent of the President.
In our opinion the appeals and the petitions under article 32 are without merit and are therefore dismissed with costs.
One hearing fee.
Appeals and writ petitions dismissed.

dataset_name: IN-Abs

summary/full:
Under section 6 of the Bihar Sales Tax Act, 1947, the Government issued a notification exempting certain goods from the 499 payment of sales tax, including "green vegetables other than potatoes, except when sold in sealed containers".
The appellant who was a producer of sugar can was assessed to sales tax.
He contended that sugar cane was a green vegetables and was exempted from tax and that he was not a dealer as defined in section 2 (c) of the Act and could not be assessed to sales tax. ^ Held, that sugar cane was not a green vegetable and was not exempted under the notification.
The word "vegetables" in taxing statutes was to be understood as in common parlance i.e. denoting class of vegetables which were grown in a kitchen garden or in a farm and were used for the table.
The dictionaries defined sugar cane as a "grass." Ramavtar Budhaiprasad vs Assistant Sales Tax Officer, Akola, ; , followed.
The State of Bombay vs R. section Phadtare, [1956] 7 section T. C. 495, disapproved.
Held, further, that the appellant was a dealer within the definition in section 2(c).
Section 2(c) was amended by the Bihar Annual Finance Act, 1950.
The amended was not a temporary amendment for only one year; the amended section was applicable to the present case.
The amending Act did not require the assent of the President as the matter fell entirely within entry 54 of the State List.


judgement:
Civil Appeal No. 622 of 1960.
Appeal from the judgment and order dated February 12, 1960, of the Allahabad High Court (Lucknow Bench) at Lucknow in Writ Petition No. 228 of 1959.
1. M. Lall, E. Udyarathnam and section section Shukla, for the appellant.
C. B. Agrawalla and C. P. Lal, for the respondents.
November 3.
The Judgment of the Court was delivered by SHAH, J.
In 1951 the appellant Devendra Pratap Narain Rai Sharma held the post of "Inspector Qanungo" in the Revenue Department of the State of Uttar Pradesh and was selected for the post of Tehsildar on probation.
By order dated April 21, 1952, the Collector of Jhansi suspended the appellant and commenced an enquiry against him on certain charges of misdemeanour.
In June, 1952, the Collector recommended to the Land Reforms Commission that the appellant be reverted to the post of "Naib Tehsildar", but the Commissioner recommended to the State Government that the applicant be dismissed from service.
317 The State Government accepted the recommendation of the Commissioner and dismissed the appellant from service, by order dated September 16, 1953.
The appellant then commenced an action (Suit No. 163 of 1954) in the Court of the Civil Judge, Lucknow, challenging the legality of the order of dismissal principally on the ground that he was not afforded the opportunity of defending himself and of showing cause against the action proposed to be taken against him.
The Civil Judge dismissed the suit but the decree of the Judge was reversed by the High Court of Civil Judicature at Allahabad.
The High Court held that reasonable opportunity was not afforded to the appellant either before the recommendation was made for imposing penalty or before imposing punishment and therefore the appellant was deprived of the protection of article 311 of the Constitution.
The High Court, accordingly, allowed the appeal, set aside the decree of the Civil Judge and granted a declaration that the order passed by the Government of Uttar Pradesh dated September 16, 1953, purporting to dismiss the appellant was void, inoperative and illegal and the appellant must be deemed to continue in service.
The appellant was then by the Government of Uttar Pradesh Notification dated March 30, 1959, reinstated to his original post of Tehsildar.
He was posted at Tehsil Puranpur in District Pilibhit and took charge of his office on April 28, 1959.
The appellant then applied to the Accountant General of Uttar Pradesh for payment of arrears of salary and allowances due to him.
The Accountant General, by letter dated May 18.
1959, informed the appellant that he was "entitled to draw pay and allowances with effect from April 28, 1959" and that as regards the arrears of pay and allowances for the period between April 21, 1952, and April 28, 1959, reference had been made to the State Government about the terms and 318 conditions of the appellant 's reinstatement and that action would be taken on receipt of instructions in that behalf.
The appellant was again suspended by order dated July 11, 1959, issued by the Board of Revenue and was directed to hand over charge to the Naib Tehsildar of Tehsil Puranpur.
On July 24, 1959, the Board of Revenue ordered that the salary of the appellant for the period between April 21, 1952, and the date of taking over charge of his duties as Tehsildar on reinstatement will be fixed as follows: (1) The pay from April 21, 1952 till the date of orders of his dismissal will be limited to the subsistence allowance of Rs. 76/11/
already drawn by him.
(2) The pay for the period from the date following the date of the order of his dismissal till the date of his taking over charge of his duties as Tahsildar on reinstatement will be fixed at Rs. 1/ p.m.
as token pay.
The appellant was also informed that the period of his dismissal, i.e. April 21, 1952, to the date of his taking over charge of his office as Tehsildar on reinstatement will be treated as "on duty", and will count towards pension.
The appellant applied on August 25, 1959, to the High Court at Allahabad by a petition under article 226 of the constitution praying for a writ quashing the order directing enquiry into the allegations regarding his work and conduct as Tehsildar at Garautha, District Jhansi and for a direction setting aside the order of suspension dated July 11, 1959, and for a direction permitting the appellant to draw his full salary and allowances with all increments amounting to Rs. 27,238/10/ and for an order to the Accountant General to issue pay slips at the rate of Rs. 325/ p.m.
from the date 319 of taking over charge with dearness and house allowances with further increments, if any, falling due in the scale of Rs. 200 10 250 15 400, and for directions to the respondents to issue orders for confirmation of the appellant with effect from April 19, 1953.
The appellant claimed that the Government of Uttar Pradesh had no power to reopen the enquiry concluded by the decision of the High Court of Allahabad and that the State was bound to pay him salary with increments and allowances for the period of suspension as if he was on duty during that period.
He also claimed that he must be deemed to have been confirmed in the post of a Tehsildar and, therefore, entitled to salary in the grade of Tehsildar.
The High Court held that the second enquiry against the appellant directed by the Board of Revenue was not barred by virtue of the previous decision and that the appellant could not be deemed to have been confirmed with effect from April, 1953.
The High Court further held that because the appellant had not claimed the salary for the period April 21, 1959, to November 24, 1954, in the Civil Suit filed by him he should be deemed to have relinquished that part of his claim.
Regarding the salary for the period November 24, 1954, to April 28, 1959, the High Court held that fixation of Rs. 1/ by the Board of Revenue as token salary of the appellant amounted to punishment which the Government could not impose without following the procedure laid down by article 311 of the Constitution.
In the view of the High Court the appellant having been reinstated, there was no justification for not granting him full salary till July 14, 1959, the date till which he continued to function as Tehsildar after reinstatement.
But the High Court observed, "A writ of mandamus can, however, only direct the opposite parties to proceed in accordance with law.
We, therefore, direct that the order contained in annexure 11 be quashed and the State Government 320 directed to reconsider the matter in the light of the relevant rule after giving notice to and hearing the petitioner.
" The High Court further held that the appellant was not entitled to any higher salary nor was there anything to show that he had earned any annual increment or had crossed the efficiency bar.
Against the order passed by the High Court partially allowing the petition and directing the State Government to reconsider the matter regarding the pay and allowances due to the appellant for the period November 24, 1954, to April 28, 1959, this appeal has been preferred with certificate of fitness granted under Articles 132 (1) and 133 (1)(b) of the Constitution.
In our view, the State Government was competent to direct a fresh enquiry against the appellant for dereliction of duty even if such dereliction was in the period relating to which proceedings were previously started and the appellant had been dismissed from service.
The appellant was not in the earlier proceedings exonerated by the High Court in respect of the alleged misconduct charged against him, and, in any event, charge against him in the second enquiry was different from the charge in the first enquiry.
The High Court had in the suit challenging the order passed in the first enquiry expressly observed that on the question as to misconduct and the punishment, no opinion was expressed.
The suit filed by the appellant was decreed only on the ground that he had not been afforded a reasonable opportunity of showing cause against the charge against him and also the punishment decided to be imposed upon him.
Authorities on which reliance was placed by counsel for the appellants, namely, Dwarkachand vs State of Rajasthan, Nanak Chandra Bairagi vs 321 Supdt.
of police, Sibsagar and Mohan Singh Chaudhari vs Divisional Personal officer, Northern Railway, Ferozepore Cantt, do not support the plea that the second enquiry is, in the circumstances of the case, barred.
An adjudication on the merits by a quasi Judicial body may or may not debar commencement of another enquiry in respect of the same subject matter.
But in this case we are concerned with the scope of the High court order.
The binding effect of a judgment depends not upon any technical consideration of form, but of substance.
The High Court in the appeal filed by the appellant in suit No. 163 of 1954 did not exonerate the appellant from the charges.
The High Court decreed the suit on the ground that the procedure for imposing the penalty was irregular, and such a decision cannot prevent the State from commencing another enquiry in respect of the same subject matter consistently with the provisions of articles 310 and 311.
In Dwarkachand 's case, in a previous enquiry the public servant concerned had been exonerated; and in Mohan Singh Chaudhari 's case a decision by the, civil court declaring illegal an order dismissing a public servant by an officer not authorised in that behalf was held binding on all the parties in proceedings under Art 226 till such decision was set aside in accordance with law.
In Kanak Chandra 's case it was held that an order in exercise of powers of revision by the Governor under the authority reserved to him setting aside on order of censure passed by a subordinate authority and dismissing the public servant concerned from service did not amount to a second departmental enquiry.
These cases do not lend support to the proposition that after an order passed in a enquiry against a public servant imposing a penalty is quashed, by a civil court, no further proceeding can be commenced against him even if in the proceeding can be commenced against him even if in the proceeding in which the order quashing 322 the enquiry was passed, the merits of the charge against the public servant concerned were never investigated.
If the State Government was competent to order a fresh enquiry, we see no reason why it would be incompetent to direct suspension of the appellant during the pendency of the enquiry.
The High Court in dealing with the appellant 's claim to salary during the period of his suspension pending the earlier enquiry observed that there was no justification for "not granting the appellant his full pay" for the period after the date of the suit.
But the counsel for the State of Uttar Pradesh asserted that it is open to the State, notwithstanding the direction, to award as remuneration to the appellant for the period for which he was under suspension any amount which on a reconsideration of the matter in the light of the relevant rules and after hearing the appellant the State Government considers just and proper.
This power, counsel contends, arises by virtue of Rule 54 of the Fundamental Rules framed by the State of Uttar Pradesh under the authority conferred under article 309 of the Constitution.
Counsel says that it was because of this rule that the High Court directed the State Government to reconsider the matter in the light of the relevant rules.
In our view, this contention is wholly misconceived.
Rule 54, as amended in 1953, stands as follows: "54.
(1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty and 323 (b) whether or not the said period shall be treated as a period spent on duty.
(2) Where such competent authority holds that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be together with any allowances of which he was in receipt prior to his dismissal, removal or suspension.
(3) In other cases, the Govt.
servant shall be given such proportion of such pay and allowances as such competent authority may prescribe.
Provided that the payment of allowances under clauses (2) and (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under clauses(2) the period of absence from duty shall be treated as the period spent on duty for all purposes.
(5) In a case falling under clause (3) the period of absence from duty shall not be treated as period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purposes.
This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated.
This rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal.
But in this case the order of dismissal was declared invalid in a civil suit.
The effect of the decree of the 324 civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous.
The effect of the adjudication of the civil court is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant.
It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.
The High Court has disallowed to the appellant his salary prior to the date of the suit.
The bar of O.2 r. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under article 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court.
The order of the High Court therefore is confirmed.
The State has made a wholly unjustifiable claim to fix the salary of a public servant wrongfully prevented from performing his duties, even after he is reinstated in consequence of a decision of the civil court declaring his dismissal as wrongful.
As, however, the principal relief claimed by the appellant is not granted, we think that the proper order is that there will be no order as to costs throughout.

summary/full:
The order of dismissal against the appellant was set aside by the High Court, holding inter alia, that reasonable opportunity was set afforded to the appellant before imposing the penalty dismissed and the appellant must be deemed to continue in service.
Thereafter the appellant was reinstated, but he was awarded salary at the rate of Rs. 76 11 0 till the order of dismissal, and at a token rate of Rs. 1/ for the period between the order of dismissal and reinstatement.
The appellant was again suspended and enquiry was directed against him in respect of dereliction of duty for which he had already been once dismissed and re instated.
The appellant moved the High Court for a writ to quash the order directing the said enquiry.
He claimed that Government had no power to re open the enquiry concluded by the decision of the High Court and that the State was bound to pay him salary with increments for the period of suspension as if he was on duty during that period.
The High Court, inter alia, held that the second enquiry against the appellant was not barred by virtue of the previous decision, but the fixation of token salary amounted to punishment which could not be imposed without following the procedure laid down in article 311 of the Constitution, and there was no justification for not granting him full salary.
The appellant came up in appeal to the Supreme Court by certificate.
^ Held, that the State Government was competent in the circumstances, to direct a fresh enquiry against the public servant for dereliction of duty, and to suspend him.
Where the order of dismissal of a public servant was declared invalid by the decree of a Civil Court the effect was that the public servant was never to be deemed to have been lawfully dismissed from service, and the order of reinstatement was superfluous.
It was not open to the authority 316 to deprive the public servant of the remuneration which he would have earned has he been permitted to work.
Held, further, that r. 54 of the Fundamental Rules of the Uttar Pradesh Government enables the State Government of fix the pay of a public servant, when dismissed is set aside in a departmental appeal, but that rule has no application to cases in which the dismissal of a public servant is declared invalid by the decree of a Civil Court and he is consequently re instated.
Dwarkachand vs State of Rajasthan, I.L.R. , Nanak Chandra Bairagi vs Supdt.
of Police, Sibsagar, I.L.R. and Mohan Singh Choudhri vs Divisional Personnel Officer, Northern Railway, Ferozepore Cantt.
I.L.R. , not applicable.