Union of India Vs. Shree Gajanan Maharaj Sansthan  Insc 225 (29 April 2002)
Babu & Ruma Pal
CIVIL APPEAL NO. 5393/1998 AND WRIT PETITION (C) NO.632/2000]
RAJENDRA BABU, J. :
are three matters, two of which are appeals arising out of orders made by two
different High Courts and the third matter is a writ petition filed by the
respondent (Shree Gajanan Maharaj Sansthan) in Civil Appeal No. 2727/1998 in
this Court directly under Article 32 of the Constitution.
APPEAL NO. 2727/1998 The respondent in this appeal registered as a charitable
trust under the Bombay Public Trust Act filed a writ petition before the Bombay
High Court, Nagpur Bench, contending that Section 2(j) of the Industrial
Disputes Act, 1947 [hereinafter referred to as 'the Act'] provides for
definition of the expression "industry"; that this Court interpreted
the said expression in Bangalore Water Supply & Sewerage Board vs. A. Rajappa
& Ors., 1978 (2) SCC 213; that separate judgments were rendered by Beg,
C.J., Chandrachud, CJ. And Bhagwati, Krishna Iyer and Desai, JJ. together, while Jaswant Singh and Tulzapurkar, JJ.
partially dissented; that they explained the definition of the expression
"industry" in the Act; that all of them are of the view that the
matter should be clarified by the Legislature by a suitable amendment; that the
said definition of "industry" as interpreted by this Court would
include 'charitable trust' as well; that under the Industrial Disputes
(Amendment) Act, 1982 by clause (c) thereof definition of the term
"industry" has been amended and 'charitable organisations' have been
excluded from the term "industry"; that Section 1(2) of the Amending
Act provides that the Act shall come into force on such date as the Central Government
may by a notification in the Official Gazette appoint; that although most of
the provisions of the Amending Act have been brought into effect by a
notification dated August 21, 1984, clause (c), which has amended the
definition of the term "industry", has not been brought into force;
that thus, the definition of the term "industry" as it stood prior to
the amendment is still applicable to the employees working in the appellant's
institution; that the Central Government has arbitrarily withheld the enforcement
of the said provision for a sufficiently long time and, therefore, a writ of
mandamus needs to be issued to the Central Government to notify the date for
bringing the provisions into force. The Central Government took the stand that
enforcing the provision under clause (c) without providing for appropriate
remedies to the employees working in hospitals, schools and temples they would,
therefore, be rendered without any remedy in the event the said clause is put
into force without enacting an appropriate law or making certain amendments in
the existing laws.
High Court took the view that the Central Government in notifying the date when
the provisions of the Act will come into force will have to examine the
attending circumstances before bringing the same into force and such a power
would not empower the Central Government to decide whether to bring a
particular provision into force or not.
the High Court was of the view that when the Amending Act was adopted by
Parliament the difficulties put forth by the appellants were prevalent and,
therefore, it authorised the Central Government to notify the appointed day. It
is in these circumstances the High Court felt that it is obligatory for the
Central Government to examine whether difficulties as expressed still subsist
and what steps the Central Government had taken to surmount them and when more
than 18 years had elapsed the appellant ought to examine and decide as to when
it would be feasible to give effect to the provisions of the Amending Act.
this appeal the order made by the High Court is in challenge.
Court made an order on 8.2.2001 to the following effect :- "The direction
issued by the High Court in respect of which these appeals are filed is that
the Union of India should examine and decide within six months as to when it
would be feasible to give effect to Sub-section 2 of Section 1 of the
Industrial Disputes Amending Act, 1982 contained in the Amending Act. Now, it
is stated on behalf of the Union of India that the said exercise has been done
and they do not find it feasible to give effect to the provisions at this
stage. It would be appropriate to file an affidavit in a matter of this nature
and thereafter take a decision.
counsel for the Appellant-Union of India seeks six weeks time to file the affidavit. Call after six weeks."
Thereafter, an affidavit has been filed on behalf of the Central Government in
this regards which is as follows :-
That this Hon'ble Court vide its order dated 18th April 2001 was pleased to grant one week time
to the Union of India to file a better affidavit regarding the present stage of
notifying the amendment of Section 2(c) of the Industrial Disputes (Amendment)
Act, 1982. Pursuant to the said order, the present affidavit is being filed.
That the Industrial Disputes (Amendment) Bill, 1982 was introduced to amend the
definition of the term industry.
That the Government also introduced the Hospitals and Other Institutions
(Settlement of Disputes) Bill in the Rajya Sabha.
Bill was enacted but the later bill was not pursued because of opposition to
consequence the amended definition of the term "industry" could not
be brought into effect in the absence of alternative grievance machinery for
employees in hospitals, educational institutions, etc. who would have been
denied the protection of the Industrial Disputes Act, 1947.
That another attempt was made by introducing, 'the Hospitals and Other
Institutions (Redressal of Grievances of Employees) Bill', but it lapsed with
the dissolution of the Lok Sabha in 1989.
That Bipartite Committee for new Industrial Relations law under the
Chairmanship of Sh. G. Ramanujam was set up by the Government for formulation
of comprehensive industrial formulations law, but the views of this Committee
on the definition of the terms industry were not unanimous.
That a proposal for modification of the definition of the term 'industry' was
placed in the Standing Labour Committee and thereafter the issue was referred
to the new Bipartite Committee to formulate a comprehensive Industrial
Relations Bill. It was wound up as no consensus emerged.
That the Ministry of Labour prepared a proposal to amend the Industrial
Disputes Act, 1947 including definition of 'industry' and the proposal was sent
to Committee of Secretaries.
the meeting of Committee of Secretaries (COS) on 15.2.1999 it was agreed that
an Inter-Ministerial Group would be set up by the Ministry of Labour to finalise
the proposals. Accordingly, an Inter-Ministerial Group was set up with the
representatives of 13 Ministries/Departments.
That Meetings of the Inter-Ministerial Group with the representatives of all
the 13 Ministries/Departments were held on 14.5.1999 and 11.1.2001 to consider
the amendment proposals.
That meetings of COS under the chairmanship of the
Cabinet Secretary were held on 15.2.1999, 3.11.1999, and 21.1.2000 to consider
the amendment proposals.
That the proposal was revised/recast on the basis of recommendations made by
the Group and Inter-Ministerial Committee of Secretaries.
That group of Ministers was constituted under the Chairmanship of Dy. Chairman,
Planning Commission to suggest the amendment proposals. The group consisted of
Ministers of 9 Ministries.
That group of Ministers has met on 11.4.2000, 12.5.2000 and 27.5.2000.
That the proposal to amend the Industrial Disputes Act were again revised on
the basis of recommendations of Group of Ministers.
That after finalising the proposals, it was sent to Ministry of Law, Justice
and Company Affairs for the opinion of Department of Legal Affairs. Department
of Legal Affairs have concurred in the proposals and a draft bill is being
drafted by the Legislative Department, Ministry of Law." A reference has
been made to the following decisions and to the criteria upon which the
delegated legislation and conditional legislation can be distinguished:
the Delhi Laws Act, 1912, the Ajmet-Merwara (Extension of Laws) Act, 1947 and
The Part C States (Laws) Act, 1950, 1951 SCR 747, Rajnarain Singh vs. The
Chairman, Patna Administration Committee, Patna & Anr., 1955 (1) SCR 290, Hamdard
Dawakhana (Wakf) Lal Kuan, Delhi & Anr.
vs. Union of India & Ors., 1960 (2) SCR
671, Suman Gupta and Ors. vs. State of J
& K & Ors., 1983 (4) SCC 339, Consumer Action Group & Anr.vs. State
of T.N. & Ors., 2000 (7) SCC 425, and Agricultural Produce Market Committee
vs. Ashok Harikuni & Anr., 2000 (8) SCC 61.
Rein vs. Union of India & Ors., 1988 (4) SCC 54, when Section 30 of the
Advocates Act, 1961 was not put into operation even after a lapse of 27 years
of its enactment, this Court observed that the Court on account of long lapse
of time though cannot issue writ of mandamus it can ask the Government to consider
within a reasonable time whether time for enforcing the provision has arrived
or not and no more.
A.K. Roy vs. Union of India & Ors., 1982 (1) SCC 271, a contention was
raised that despite the provisions of Section 1(2) of the 44th Constitution
(Amendment) Act, 1978, Article 22 of the Constitution stood amended on
30.4.1979 when the Amendment Act received the assent of the President and that
there was nothing more that remained to be done by the Executive except fixing
a date for the commencement of the Act as provided under Section 1(2) thereof.
According to the said contention, Section 1(2), which is misconceived and
abortive, must be ignored and severed from the rest of the Amendment Act. This
Court observed that no mandamus could be issued to the Executive directing it
to commence the operation of the enactment; that such a direction should not be
construed as any approval by the Court of the failure on the part of the
Central Government for a long period to bring the provisions of the enactment into
force; that in leaving it to the judgment of the Central Government to decide
as to when the various provisions of the enactment should be brought into
force, the Parliament could not have intended that the Central Government may
exercise a kind of veto over its constituent will by not ever bring the
enactment or some of its provisions into force; that if only the Parliament
were to lay down an objective standard to guide and control the discretion of
the Central Government in the matter of bringing the various provisions of the
Act into force, it would have been possible to compel the Central Government by
an appropriate writ to discharge the function assigned to it by the Parliament.
It was further contended that an amendment can be bad because it vests an
uncontrolled power in the executive in bringing an enactment into operation.
This Court, however, noticed that such power cannot be held to give an
uncontrolled power to the executive inasmuch as there are practical
difficulties in the enforcement of laws and those difficulties cannot be
foreseen. It, therefore, became necessary to leave the judgment to the
Executive as to when the law should be brought into force. When enforcement of
a provision in a statute is left to the discretion of the Government without
laying down any objective standards no writ of mandamus could be issued
directing the Government to consider the question whether the provision should
be brought into force and when it can do so. Delay in implementing the will of
the Parliament may draw adverse criticism but on the data placed before us, we
cannot say that the Government is not alive to the problem or is desirous of
ignoring the will of the Parliament.
circumstances set out in the affidavit filed on behalf of the Government, it
would not be feasible for Government to set out any definite day as to when
they can take action as indicated by the High Court and, therefore, the order
made by the High Court cannot be given effect to at all. Though there has been
a sense of urgency on the part of the Government in this regard, it has not
been able to take a decision in the circumstances set forth in the affidavit.
Hence, while noticing that appropriate action has to be taken by the Government
to bring into effect the Amending Act as indicated by the High Court, we also
take note of the various circumstances which come in the way of the Government
to give effect to the Amending Act immediately. That part of the order of the
High Court by which writ of mandamus has been issued to the Government to take
action and to indicate as to when it would be feasible to appoint a date for
bringing into force the Amending Act stands deleted.
other respects, the order made by the High Court is maintained.
is partly allowed accordingly. No costs.
APPEAL NO. 5393/1998 In this Civil Appeal, which is identical in nature with
Civil Appeal No. 2727/1998, the view taken by the Karnataka High Court which is
contrary from that of the Bombay High Court is in challenge.
light of the order made by us in Civil Appeal No. 2727/1998, this appeal stands
dismissed. No costs.
PETITION (C) NO. 632/2000 In view of the order made in Civil Appeal Nos.
2727/1998, this writ petition stands dismissed.
RAJENDRA BABU ] .J.
PAL ] APRIL 29, 2002.