M. S. Shvananda Vs. Karnataka State
Road Transport Corporation & Ors [1979] INSC 184 (18 September 1979)
SEN, A.P. (J) SEN, A.P. (J) FAZALALI, SYED
MURTAZA KAILASAM, P.S.
CITATION: 1980 AIR 77 1980 SCR (1) 684 1980
SCC (1) 149
CITATOR INFO :
F 1989 SC1614 (17) RF 1991 SC1789 (4,6)
ACT:
Karnataka Contract Carriages (Acquisition)
ordinance 1976, Cl. 20(3) of Karnataka Contract Carriages (Acquisition) Act
1976, Sections 19(3) and 31(2)-Scope and effect of-Contract carriages
acquired-Whether employees have a vested right of absorption.
General Clauses Act 1597 (X of 1897) S.
6-Repeal of Statute-Right acquired or accrued unaffected-Mere hope or
expectation of or liberty to apply for acquiring a right nor preserved.
HEADNOTE:
The Karnataka Contract Carriage (Acquisition)
ordinance, 1976 was promulgated on January 30, 1976 with the object of
acquiring the contract carriages operating in the State. Sub-clause (3 ) to cl.
20 of the ordinance provided for absorption of certain categories of employees
of contract carriage operators in the service of the Corporation, and the ratio
for absorption for the different categories of employees that were entitled to
be absorbed.
On the same day, the State Government made an
order under sub-cl. (I) to cl. 20 of the ordinance transferring the contract
carriages that vested in the State Government to the Karnataka State Road
Transport Corporation.
This ordinance was subsequently replaced by
the Karnataka Contract Carriages (Acquisition) Act, 1976 which was published in
the Gazette dated March 12, 1976. The ordinance was repealed by the Act, which
re-enacted the provisions of the repealed ordinance, with a saving clause in
sub-s. (2) of s. 31 for presentation of anything done or any action taken. The
Act was substantially in similar terms, except for the difference that the
ratio prescribed by proviso to sub-cl. (3) to cl. 20 of the ordinance which
laid down the categories of persons who could be absorbed in the service of the
Corporation, was substantially altered and a new ratio was inserted in the
proviso to sub-s. (3) of s. 19 of the Act. Otherwise, sub-s. (3) of s. 19 of
the Act and sub-cl. (3) to cl. 20 of the ordinance were identical in every
respect. Under the Proviso to sub-cl. (3) to cl. 20, the total strength of the
employees of the erstwhile Carriage operators allowable for absorption was 7.9
per vehicle while under the proviso to sub-s. (3) of s. 19 of the Act, the
ratio worked out to 4.45 per vehicle. Further, while under the ordinance,
conductors were entitled to be absorbed, the ratio provided under the Act
showed that conductors were not included in the categories of persons who could
be absorbed in the service of Corporation.
The change in the ratio of absorption from
7.9 per vehicle under. sub-cl. (3) to cl. 20 of the ordinance to 4.45 per
vehicle under sub-s. (3) of s. 19 of the Act adversely affected a large number
of employees of the erstwhile contract carriage operators who filed writ
petitions in the High Court, 685 challenging the vires of the proviso to sub-s.
(3) of s. 19 of the Act, which dismissed the writ petitions.
In the appeal and the writ petitions to this
Court the question for consideration was, whether the employees of the
erstwhile contract carriage operators in the State of Karnataka acquired a
vested right of absorption in the service with the Karnataka State Road
Transport Corporation under sub-cl. (3) to cl. 20 of the Karnataka Contract
Carriage (Acquisition) ordinance 1976.
Dismissing the appeal and writ petitions;
HELD: 1. The High Court rightly observed that
there was neither anything done nor action taken and, therefore, the
petitioners did not acquire any right to absorption under sub-cl. (3) to cl.
20. [692 C]
2. The ordinance promulgated by the Governor
in the instant case was a 'legislative act' of the Governor under Art. 213(1)
and, therefore, undoubtedly a temporary statute, and while it was still in
force the repealing Act was passed containing the saving clause in s. 31(2)(i)
providing that, notwithstanding such repeal, 'anything done' or any 'action
taken' under the repealed ordinance shall be deemed to have been done or taken
under the corresponding provisions of the Act. [691 C-D]
3. In considering the effect of an expiration
of a temporary Act, it would be unsafe to lay down any inflexible rule. It
requires very clear and unmistakable language in a subsequent Act of the
legislature to revive or re-create an expired right. If, however, the right
created by the statute is of an enduring character and has vested in the person,
that right cannot be taken away because the statute by which it was created has
expired. In order to see whether the rights and liabilities under the repealed
ordinance have been put an end to by the Act, 'the line of enquiry would be not
whether the new Act expressly keeps alive old rights and liabilities under the
repealed ordinance but whether it manifests an intention to destroy them.
Another line of approach may be to see as to how far the new Act is
retrospective in operation. [691 F-G] State of Punjab v. Mohar Singh, [1955]
SCR 893, referred to
4. (i) Sub-s. (2) of s. 31 of the Act was not
intended to preserve abstract rights conferred by the repealed ordinance. The
legislature had the competence to so re- structure the ordinance as to meet the
exigencies of the situation obtaining after the taking over of the contract
carriage services. It could re-enact the ordinance according to its original
terms, or amend or alter its provisions.
[692 A] (ii) When the ordinance came to be
replaced by the Act, the Corporation felt that the number of employees of the
erstwhile contract carriage operators was too large for its requirements. The
legislature, therefore stepped in and reduced the scale of absorption in the
proviso to sub-s. (3) of s. 19 from 7.9 per vehicle to 4.45 per vehicle. [694G]
5. The object of s. 31(2)(i) is to preserve
only the things done and action taken under the repeated ordinance and not the
rights and privileges acquired and accrued on the one side, and the
corresponding obligation or liability 686 incurred on the other side, so that
if no right acquired under the repealed ordinance was preserved, there is no
question of any liability being enforced. It is unlike the usual saving clauses
which presented unaffected by the repeal, not only things done under the
repealed enactment but also the rights acquired there under. [693 C, D]
6. (i) Every person eligible for absorption
had to fulfill three conditions, viz., (1) he had to be a workman within the
meaning of the Industrial Disputes Act, 1947; (2) he should have been,
immediately before the commencement of the ordinance, exclusively employed in
connection with the acquired property, and (3) he had to come within the ratio
provided in the proviso to sub-cl. (3) to cl. 20. The whole object of inserting
sub-cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of
persons suitable for employment, for which purpose, the Corporation had
necessarily to screen the applicants. [693 G] (ii) It was only if the employee
was willing to be absorbed in the service of the Corporation that the
Corporation could absorb him in service, provided the other conditions
specified in sub-cl. (3 ) to cl. 20 were satisfied. [694 E] (iii) Thus it is
clear that several steps had to be taken by the authorities before identifying
and determining the persons who could be absorbed in the service of the
Corporation, in accordance with sub-cl. (3) to cl. 20 of the ordinance, which
indicates that automatic absorption of the employees of the erstwhile contract carriage
operators was not legally permissible. [694 F]
7. The distinction between what is and what
is not a right presented by the provisions of s. 6 of the General Clauses Act.
is often one of great fineness. What is unaffected by the repeal of a statute is
a right acquired or accrued under it and not a mere 'hope or expectation of',
or liberty to apply for acquiring a right. [692 G] Director of Public Works v.
Ho Po Sang, [1962] 2 All.
ER 721 PC, referred to.
8. The Act substitutes a 'new' proviso in sub-s.
(3) of s. 19 in place cf the old proviso to sub-cl. (3) to cl. 20 of the
ordinance, altering the whole basis of absorption.
The new proviso is given a retrospective
effect, and it holds the field from the notified date i.e., January 30, 1976.
The proviso in subcl. (3) to cl. 20 laying down a particular ratio of
absorption, is pro tanto avoided by an express enactment of a 'new' proviso to
sub-s. (3) of s. 19 which is entirely inconsistent with it. When an ordinance
is replaced by an Act which is made retrospective in operation, anything done
or any action taken under the ordinance stand wholly effected. [695 C]
9. (i) The employees of the former contract
carriage operators in normal course filled in the pro forma giving their
service particulars and reported to duty. This was in the mere 'hope or
expectation' of acquiring a right. The submission of these 'call reports' by
the employees did not subject the Corporation to a corresponding statutory
obligation to absorb them in service. [692 C] (ii) The meeting of the Committee
set up by the Government for laying down the principles for equation of posts
and for determination of inter-sc seniority, met on June 2, 1976. The Committee
decided that even in the 687 case of helpers-cleaners, there should be a 'trade
test' and the staff cleared by the Committee for the posts of helper 'B',
helper 'A' and assistant artisans should be on the basis of their technical
competence, experience, ability etc. The Committee also decided that all other
employees of contract carriage operators, who were eligible for absorption,
should be interviewed by that Committee for the purpose of absorption on the
basis of experience, ability duties and responsibilities. These norms were not
laid down till June 2, 1976 Till their actual absorption, the employees of the
erstwhile contract carriage operators had only an inchohate right. [692 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2411 of 1978.
Appeal by Special Leave from the Judgment and
order dated 26-7-1978 of the Karnataka High Court in Writ Petition No. 10203/
77.
And ORIGINAL JURISDICTION: Writ Petitions
Nos. 4473-4474, 4415, 4488, 4528, and 4539 of 1978.
(Under Article 32 of the Constitution). D G.
B. Rikar, K. R. Nagaraja and Mrs. Gayathri Balee for the Petitioner (In WP.
4473-4474, 4488, 4539/78).
R. B. Datar and Navin Sinha for the
Petitioner (In WP.
4415 and 4528 and for-Appellant in CA
2411/78).
V. A. Sayield Mohammad and N. Nettar for the
State of Karnataka and for Respondent No. 3 in WPs. 4473-4474, 4488, 4528 and
4539 and C.A. 2411/78.
L. N. Sinha, Attorney General, K. K.
Venugopal, Additional Solicitor General, V. A. Sayied Mohammad and Vineet Kumar
for Karnataka State Road Transport Corporation (in All W.P.s & C.A.).
The Judgment of the Court was delivered by
SEN, J:-This appeal, by special leave, directed against a judgment of the
Karnataka High Court dated July 26, 1978 and the connected petitions under Art.
32 of the Constitution, raise a common question. It would, therefore, be
convenient to dispose them of by this common judgment.
The short question involved in these cases
is, whether the employees of the erstwhile contract carriage operators in the
State of Karnataka acquired a vested right of absorption in service with the
Karnataka State Road Transport Corporation under sub-cl. (3) to cl. 20 of the
Karnataka Contract Carriages (Acquisition) ordinance 1976.
688 It will be convenient to refer in the
first place to the legislative changes. On January 30, 1976 the Karnataka
Contract Carriages (Acquisition) ordinance, 1976 was promulgated by the
Governor of Karnataka under cl. (1) of Art. 213 of the Constitution. The said
ordinance was promulgated with the object of acquiring contract carriages
operating in the State and for certain matters connected therewith. On the same
day, i.e., on January 30, 1976 the State Government issued a notification under
cl. 4(1) of the ordinance vesting every contract carriage owned or operated by
such contract carriage operator, along with permit, in the State Government absolutely
free from all encumbrances.
On the same day, the State Government made an
order under sub-cl. (1) to cl. 20 of the ordinance transferring all the
contract carriages that vested in the State Government under the notification
issued under sub-cl. (1) to cl. 4 of the ordinance, to the Karnataka State Road
Transport Corporation (hereinafter referred to as 'the Corporation').
Sub-clause (3) to cl. 20 of the ordinance provided for absorption of certain
categories of employees of contract carriage operators in the service of the
Corporation. It also provided the ratio for absorption for different categories
of employees that were entitled to be absorbed in the service of the
Corporation.
The ordinance was subsequently replaced by
the Karnataka Contract Carriages (Acquisition) Act, 1976, Which was published
in the gazette on March 12, 1976. The ordinance was repealed by the Act, and it
re-enacted the provisions of the repealed ordinance, with a saving clause in
sub-s. (2) of s. 31, for preservation of anything done or action taken. The Act
was substantially in similar terms except for the difference that the ratio
prescribed by proviso to sub-cl. (3) to cl. 20 of the ordinance, which laid
down the categories of persons who could be absorbed in the service of the
Corporation, was substantially altered and a new ratio was inserted in the
proviso to sub-s. (3) of s. 19 of the Act. Otherwise, sub-s. (3) of s. 19 of
the Act and sub-cl. (3) to cl. 20 of the ordinance were identical in every
respect. Under proviso to sub-cl. (3) to cl. 20, the total strength of the
employees of the erstwhile contract carriage operators allowable for absorption
was 7.9 per vehicle, while under proviso to sub-s. (3) of s. 19 of the Act the
same works out to 4.45 per vehicle. Further, while under the ordinance
conductors were entitled to be absorbed, the ratio provided under the Act shows
that conductors are not included in the categories of persons who can be
absorbed in the service of the Corporation.
689 It appears that although as many as 785
contract carriages were A notified for acquisition, only 601 vehicles were
actually acquired. The change in the ratio of absorption from 7.9 per vehicle
under sub-cl. (3) to cl. 20 of the ordinance to 4.45 per vehicle under sub-s.
(3) of s. 19 of the Act adversely affected a large number of employees of the
erstwhile contract carriage operators. A large number of writ petitions were,
therefore, filed in the High Court challenging the vires of the proviso to
sub-s. (3) of s. 19 of the Act on various grounds, but by the judgment under
appeal the High Court has repelled all the contentions.
Thereafter, the remaining writ petitions were
all withdrawn.
The appeal is against the judgment of the
High Court and the employees have also directly approached the Court under Art.
32.
Before dealing with the contention advanced
in the appeal, it is necessary to set out the relevant provisions.
Sub-clause (3) to cl. 20 of the ordinance
read as follows:
"20.(3) Every person who is a workman
within the meaning of the Industrial Disputes Act, 1947 (Central Act 14 of
1947) and has been immediately before the commencement of this ordinance
exclusively employed in connection with the acquired property, shall', on and
from the notified date, become an employee of the corporation on the same terms
and conditions applicable to the employees holding corresponding posts in the
corporation. Any person not willing to become such an employee of the
corporation shall be entitled to retrenchment compensation as provided in the Industrial
Disputes Act:
Provided that the number of workmen that
shall become employees of the corporation under this sub- section shall not
exceed the following scale, the junior most being excluded:- -
----------------------------------------------------------- Scale per vehicle
------------------------------------------------------------
1. Drivers . . . . . . . . 1.5
2. Conductors . . . . . . . 2.65
3. Supervision . . . . . . 0.125
4. Higher Supervision staff and Managers .
0.075
5. Ministerial and Secretariat staff . . .
0.8
6. Technical staff including Foreman . . .
2.75 ------------------------------------------------------------ 690
Sub-section (3) of s. 19 of the Act, which replaced sub-cl. (3) to cl. 20 of
the ordinance, provides:
"19.(3) Every person who is a workman
within the meaning of the Industrial Disputes Act, 1947 (Central Act 14 of
1947) and has been immediately before the commencement of this Act exclusively
employed in connection with the acquired property, shall, on and from the
notified date, become an employee of the corporation on the same terms and
conditions applicable to the employees holding corresponding posts in the
corporation. Any person not willing to' become such an employee of the
Corporation shall be entitled to retrenchment compensation as provided in the Industrial
Disputes Act.
Provided that the number of workmen that
shall become employees of the Corporation under this sub-section shall not
exceed the following scale, the junior most being excluded:-
---------------------------------------------------------- Scale per vehicle
----------------------------------------------------------
1. Drivers . . . . . . . . . . . . . . . 1.5
2. Supervision staff and managers . . . . 0.1
3. Ministerial and Secretariat Staff. . . 0.1
4. Technical staff including foreman. . .
2.75 ------------------ 4.45"
---------------------------------------------------------- The saving clause to
be found in sub-s. (2) of s. 31 of the Act, so far as material, runs thus:
"31 (2) Notwithstanding such repeal:-
(i) anything done or any action taken under the said ordinance, shall be deemed
to have been done or taken under the corresponding provisions of this
Act." It is strenuously argued that it is clear from the language of
subcl. (3) to cl. (20) of the ordinance that there was, by operation of law,
automatic absorption of the employees of the erstwhile contract carriage
operators to the extent provided therein with effect from January 30, 1976, the
date on which the notification was issued under sub-cl. (1) to cl. 4 and the
date on which the Government made an order under sub-cl. (1) to cl. 20. It is
submitted that the words "shall become an employee of the
Corporation", ill sub-cl. (3) to cl. 20 are clear and unambiguous and they
must result in the consequence that all persons employed in connection with the
acquired 691 contract carriages, became employees of the Corporation. It is
said A that, though the process of absorption may take time, as and when the necessary
steps were taken to fit in such employees falling within the categories
mentioned in the proviso to sub-cl. (3) to cl. 20, their absorption relates
back to the notified date, i.e. January 30, 1976. In other words, the
submission was that the legal effect of absorption of such' employees under
sub-cl. (3) to cl. 20 of the ordinance is automatic. That being so, their right
of absorption could not be whittled down by the subsequent enactment of the new
proviso to sub-s. (3) of s. 19 of the Act, inasmuch as they had acquired a
vested right to absorption in the ratio mentioned in sub-cl. (3) to cl. 20 of
the ordinance. C The ordinance promulgated by the Governor in the instant case
was a 'legislative act' of the Governor under Art. 213(1) and, therefore, undoubtedly
a temporary statute, and while it was still in force the Repealing Act was
passed containing the saving clause in s. 31(2) (i) providing that,
notwithstanding such repeal, 'anything done' or any 'action taken' under the
repealed ordinance shall be deemed to have been done or taken under the
corresponding provisions of the Act. The enquiry is, therefore, limited to the
question whether anything was done or action taken under the repealed
ordinance. If that be so, a further question arises on the submission whether
the words 'things done' in s. 31 (2) (i) reasonably interpreted can mean not
only things done but also the legal consequences flowing there from.
In considering the effect of an expiration of
a temporary Act, it would be unsafe to lay down any inflexible rule. It
certainly requires very clear and unmistakable language in a subsequent Act of
the legislature to revive or re-create an expired right. If, however, the right
created by the statute is of an enduring character and has vested in the
person, that right cannot be taken away because the statute by which it was
created has expired. In order to see whether the rights and liabilities under
the repealed ordinance have been put an end to by the Act, 'the line of enquiry
would be not whether', in the words of Mukherjea J.
in State of Punjab v. Mohar Singh(1), 'the
new Act expressly keeps alive old rights and liabilities under the repealed
ordinance but whether it manifests an intention to ' destroy them'. Another
line of approach may be to see as to how far the new Act is retrospective in
operation.
It is settled both on principle and
authority, that the mere right existing under the repealed ordinance, to take
advantage of the pro- 11 visions of the repealed ordinance, is not a right
accrued. Sub-section 692 (2) of s. 31 of the Act was not intended to preserve
abstract right conferred by the repealed (ordinance. The legislature has the
competence to so re-structure the ordinance as to meet the exigencies of the
situation obtaining after the taking over of the contract carriage services. It
could re-enact the ordinance according to its original terms, or amend or alter
its provisions.
What were the 'things done' or 'action taken'
under the repealed ordinance ? The High Court rightly observes that there was
neither anything done nor action taken and, therefore, the petitioners did not
acquire any right to absorption under sub-cl. (3) to cl. 20. The employees of
the former contract carriage operators in normal course filled in the pro form
giving their service particulars and reported to duty. This was in the mere
'hope or expectation' of acquiring a right. The submission of these 'call
reports' by the employees did not subject the Corporation to a corresponding
statutory obligation to absorb them in service. As a matter of fact, nothing
was done while the ordinance was in force. The Act was published on March 12,
1976. on May 29, 1976, the Corporation sent up proposals for equation of posts
to be filled in by the employees of the former contract carriage operators. The
meeting of the Committee set up by the Government for laying down the
principles for equation of posts and for determination of inter-se seniority,
met on June 2, 1976. The Committee decided that even in the case of
helpers-cleaners, there should be a 'trade test' and' the staff cleared by the
Committee for the posts of helper 'B' helper 'A' and assistant artisans should
be on the basis of their technical competence, experience, ability etc. The
Committee also decided that all other employees of contract carriage operators
who were, eligible for absorption, should be interviewed by that p Committee
for the purpose of absorption on the basis of experience, ability, duties and
responsibilities. These norms were not laid down till June 2, 1976. Till their
actual absorption, the employees of the erstwhile contract carriage operators
had only an incohate right.
The distinction between what is, and what is
not a right preserved by the provisions of s. 6 of the General Clauses Act is
often one of great fineness. What is unaffected by the repeal of a statute is a
right acquired or accrued under it and not a mere 'hope or expectation of', or
liberty to apply for, acquiring a right. In Director of Public Works v. Ho Po
Sang(') Lord Morris speaking for the Privy Council observed:
"It may be, therefore, that under some
repealed enactment, a right has been given, but that, in respect of it, some
693 investigation or legal proceeding is necessary. The right is then
unaffected and preserved. It will be preserved even if a process of
quantification is necessary. But there is a manifest distinction between an
investigation in respect of a right and an investigation which is to decide
whether so to right should be or should not be given. On a repeal the former is
preserved by the Interpretation Act. The latter is not." (Emphasis
supplied) It must be mentioned that the object of s. 31(2) (i) is to preserve
only the things done and action taken under the repealed Ordinance, and not the
rights and privileges acquired and accrued on the one side, and the
corresponding obligation or liability incurred on the other side, so that if no
right acquired under the repealed ordinance was preserved, there is no question
of any liability being enforced.
Further, it is significant to notice that the
saving clause that we are considering in s. 31(2) (i) of the Act, saves things
done while the ordinance was in force; it does not purport to preserve a right
acquired under the repealed ordinance. It is unlike the usual saving clauses
which preserve unaffected by the repeal, not only things done under the
repealed enactment but also the rights acquired thereunder. It is also clear
that even s. 6 of the General Clauses Act, the applicability of which is
excluded, is not intended to preserve the abstract rights conferred by the
repealed Ordinance. It only applies to specific rights given to an individual
upon the happening of one or other of the events specified in the statute.
Employees in excess of the scale prescribed
for the categories specified under proviso to sub-s. (3) of s. 19 of the Act
are clearly not entitled for absorption. Though sub- cl. (3) to cl. 20 of the
ordinance provided for absorption of certain classes of employees in a
particular ratio with effect from January 30, 1976, it does not follow that
there was an automatic absorption as from that date. Every such person eligible
for absorption had to fulfill three conditions, viz., (1) he had to be a
workman within the meaning of the Industrial Disputes Act, 1947; (2) he should
have been immediately before the commencement of the ordinance, exclusively
employed in connection with the acquired property, and (3) he had to come
within the ratio provided in the proviso to sub-cl. (3) to cl. 20. The whole
object of inserting sub-cl. (3) to cl. 20 of the ordinance was to obviate the
unemployment of persons suitable for employment. For this purpose the
Corporation had necessarily to screen the applicants.
It is necessary to mention that cl. 5 of the
Ordinance, which corresponds to s. 5 of the Act, provided that every contract
carriage 8-625SCI/79 694 operator shall within 15 days from the notified date
or within such further time as the State Government may allow, furnish to the
State Government or any officer authorised by it in this behalf, complete
particulars among others of persons who were in their employment immediately
before the notified date. It was only after such information was received that
steps had to be taken for the purpose of ascertaining as to who were entitled
to be absorbed in the service of the Corporation in accordance with sub-cl. (3)
to cl. 20 of the ordinance. The authorities after collecting the necessary
information had to determine not only the corresponding posts to which the
erstwhile employees of the contract carriage operators could be absorbed in the
service of the Corporation but also their relative seniority, for the purpose
of excluding the employees who were in excess of the scale for the purpose of
absorption.
As sub-cl. (3) to cl. 20 itself provides that
a person who is not willing to become an employee of The Corporation is
entitled to retrenchment compensation as provided for in the Industrial
Disputes Act, the authorities were also required to ascertain as to whether the
employee, who was entitled to be absorbed in service, was willing to become an
employee of the Corporation or not. It was only if the employee was willing to
be absorbed in the service of the Corporation that the Corporation could absorb
him in service, provided the other conditions specified in sub-cl.
(3) to cl. 20 were satisfied. Thus it is
clear that several steps had to be taken by the authorities before identifying
and determining the persons who could be absorbed in the service of the
Corporation, in accordance with sub-cl. (3) to cl. 20 of the ordinance.
The very fact that all these Various steps
were necessary to be taken, which necessarily takes time, shows that automatic
absorption of the employees of the erstwhile contract carriage operators was
not legally permissible.
When the ordinance came to be replaced by the
Act, the Corporation felt that the number of employees of the erstwhile
contract carriage operators was too large for its requirements. The
legislature, therefore, stepped in and reduced the scale of absorption in the
proviso to sub-s. (3) of s. 19 from 7.9 per vehicle to 4.45 per vehicle.
This is, in our judgment, sufficient for the
determination of the appeal. But, as we have formed a clear opinion on the
other aspect, we do not hesitate to express that opinion. That contention is of
this nature. It is pointed out that the employees of the erstwhile contract
carriage operators acquired vested right to absorption in the service of 695
the Corporation by virtue of sub-cl. (3) to cl. 20 of the repealed ordinance
with effect from January 30, 1976, which cannot be taken away by the proviso to
sub-s. (3) of s. 19.
Even if-contrary to the decision reached by
us, it were possible to hold that they had some kind of such right, that right
is expressly taken away by the legislature. The contention does not take note
of the fact that by sub-s. (1) of s. 1 the Act was brought into force with
effect from January 30, 1976, i.e., the date on which the ordinance was
promulgated. The Act substitutes a 'new' proviso in sub-s.
(3) of s. 1 in place of the old proviso to
sub-cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption.
The new proviso is given a retrospective effect, and it now holds the field
from the notified date i.e., January a 30, 1976. The proviso in sub-cl. (3) to
cl. 20 laying down a particular ratio of absorption, is pro tan to avoided by
an express enactment of a 'new' proviso to sub-s. (3) of s. 19 which is
entirely inconsistent with it. When an ordinance is replaced by an Act which is
made retrospective in operation, anything done or any action taken under the
ordinance stand wholly effected.
In the result, the appeal as well as the writ
petitions must fail and are dismissed. There shall be no order as to costs.
N.V.K. Appeal and Petitions dismissed.
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