STATE OF ASSAM & ANR. versus BHARAT KALA BHANDAR LTD. & ORS.

Citation: [1967] 3 S.C.R. 490 · Decided: 07-04-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Case Partly allowed

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Judgment (excerpt)

STATE OF ASSAM & ANR. 
v. 
BHARAT KALA BHANDAR LTD. & ORS. 
April 7, 1967 
[K. N. WANCHOO, V. BHARGAVA AND G. K. MITTER, JJ.J 
Defence of India Rules, 1962, r. 126AA(1) and 
(4)-Notification 
under sub. r. (1)-When can be challenged-Notification under sub. r. 
( 4 )-If could be issued on the subjective satisfaction of Government~ 
Procedure to be fol/owed-Jf notificatlo.n could be made retrospective. 
Under r. 126AA of the Defence elf India Rules, 1962, the Central or 
State Government may notify employments and regulate wages and 
-Other conditions of service of persons engaged in such notified employ-
ments, for securing public safety and maintenance of supplies and ser-
vices necessary to the life of the community. 
. 
On 26th September, 1964, the Governor of Assam notified under r. 
126AA( 1) a large number of employments as he was of opinion that 
1hey were essential for securing the public safety and for 
maintaining 
oSUpplies and services necessary to the life of the community, and under 
sub. r. ( 4) ordered payment of rupees ten per mensem as ad hoc cost of 
living allowance to certain workers in the notified employments. On 4th 
November, 1964, he issued 
another 
notification under sub r. (4) by 
which be ordered payment of 38.46 paise as ad hoc cost of living allow-
ance per day to persons engaged on daily wages in the notified employ-
ments. The two notifications under sub. r. ( 4) were issued to see that there 
was a contented Jabour force during emergency. Though the second notifica· 
1ion was dated November 4, 1964, the Labour Department of the State 
-Oovernment advised one of the respondents to pay the amount retrospec-
tively from September 26, 1964. 
The responde.n!s challenged the validity of the three notifications by 
writ petitions in the High Court. The High Court held that : 
A 
B 
c 
D 
E 
(i) The notification under r. 126AA(l) was mala fide in law and 
F 
should be struck down, because, the conditions precedent to the exercise 
-0f the power conferred by the rule, namely, that the Governor should 
form the necessary opinion had not been satisfied since; (a) both 
the 
purposes, namely public safety and maintenance of sueplies and services, 
,L 
were mentioned as the basis of the notification without mdicating which of 
the two purposes led the State Government to issue the notification; (b) 
a large number Of employments were included in one notification; and 
(c) the counter-affidavit of the State Government stated that the notifica-
G 
tion was issued for purposes of "defence" also though the notification itself 
did not ment.ion "d~fence", ·thus showing that the Governor had not applied 
his mind. 
· •· 
(ii) The two notifications under r. 126AA(~) were also ma/!' fide 
in law and should be struck down because; (a) 1t was not stated m the 
notifications nor' was it shown how the fixation of wages in the employ· 
ments was necessary for the purpose of securing p_ublic safety and 
~or 
maintaining supplies and services necessary to the hfe of t.h~ community 
oand (b) the notifications replaced proceedmgs under the M1n1mum Wages 
Act which were taken in respect of some of the notified employments. 
H 
B 
' 
c 
D 
E 
F 
G 
H 
ASSAM v. KALA BHANDAR (Wanchoo, /.) 
491 
In appeal to this Court, 
HELD : (i) The notification under r. 126AA( 1) should be upheld 
with respect to all employments except veneer mills. 
(501 G] 
A notification under r. 126AA(l) could be issued on the subjective 
satisfaction of the Q>ntral or State Government as to the various purPoses 
mentioned in the su~rule, which include securing public safety and 
maintenance of supplies and services necessary to the life of the com-
munity. That opinion could not be challenged in Court unless it was 
shown to be ma/a fide, or that no reasonable person could come to that 
conclusion wilh respect to tho employments specified in the notification. 
[499 D, F] 
(a) Tue fact that the notification gave both purposes for its issue did 
not show .that· the. · G<ivemor did not 'apply his mmd to the conditions. 
When the Governor said that the employments were included in the 
1111tlficaiion for two purposes; he obviously held the opinion that the em-
ployments were essenti111 for both purposes, 
and, it was not necessary 
for him to ~cify which of the employments were essential .for one pur-
pose and which we~e essential fo~ the other pUrP~e. Where c~rtain em-
ployments are essential for the maintenance of supplies and services neces-
s

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