The power under sub-r. (4) of R. 126-AA of the Defence of India Rules, 1962, to regulate wages and other conditions of service of persons engaged in essential services, does not depend entirely on the subjective satisfaction of the Government, but requires consultation with the interests concerned, including employers and employees, before an order can be passed thereunder.

Judgement

WANCHOO, J. : These are twenty-one appeals on certificates granted by the High Court of Assam and Nagaland and will be dealt with together as they raise common questions. Facts necessary for present purposes may be briefly narrated. On September 26, 1964, the Governor of Assam issued a notification under R. 126-AA of the Defence of India Rules, 1962 (hereinafter referred to as the Rules). By this notification he applied R. 126-AA to a large number of employments as he was of opinion that the employments notified were essential "for securing the public safety and for maintaining supplies and services necessary to the life of community". On the same day another notification was issued under sub-r. (4) of P. 126-AA. By this notification, the Governor ordered payment of ad hoc cost of living allowance of Rs. 10 per mensem to all workers drawing pay upto Rs. 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 38.46 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).

2. 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 conferred by that sub-rule had not been fulfilled inasmuch as (a) the State Government had not formed the opinion necessary before issuing the notification and (b) no reasonable man could have formed the opinion that notification of various employments mentioned in the schedule was necessary for securing the public safety and for maintaining supplies and services necessary to the life of community. Fourthly, it was contended that the exercise of the power under sub-r. (1) was colourable inasmuch as it was not exercised for the purpose mentioned in the sub-rule but for extraneous purposes on the ground that the notification did not show how it was necessary to notify the employments indicated therein for the purposes mentioned therein, the more so as two purposes had been mentioned in the notification and it did not appear which purpose applied to which employment. Lastly, it was urged that the notification under sub-r. (1) was mala fide. It was on these grounds that the notification under sub-r. (1) was attacked.

3. The respondents also attacked the two notifications issued under sub-r. (4) on three grounds. It was first urged that the notifications fixing ad hoc cost of living allowance were invalid as it was not stated therein that the regulation of wages proposed under the notifications had any connection with securing public safety and maintaining supplies and services necessary to the life of community. Nor was it shown that the two objects of R. 126-AA (1) mentioned in the notification could be achieved by a general notification of the type issued under sub-r. (4). Secondly, it was urged that wages could be regulated under the Minimum Wages Act (No. 2 of 1948), and in some cases steps had been taken to do so. Therefore, it was not open to take recourse to R. 126-AA (4) to achieve the same purpose, as the effect of the notification under sub-r. (4) was to deprive the respondents of the right to place materials before the committee empowered to fix minimum wages and it was thus a colourable exercise of the power conferred by the sub-rule. Thirdly, it was urged that these notifications were also mala fide.

4. The High Court held that R. 126-AA was not