Engineering
Kamgar Union Vs. M/S. Electro Steels Castings Ltd. & Anr [2004] Insc 284 (16 April 2004)
Y.K.
Sabharwal & S.B. Sinha. S.B. Sinha, J :
The
question of application of Clause (2) of Article 254 of the Constitution of
India is involved in this appeal which arises out of the judgment and order
dated 14.10.1999 passed by the High Court of Allahabad dismissing the writ
petition filed by the appellants herein and allowing the writ petitions filed
by the respondent-company herein.
BACKGROUND
FACTS:
The
appellant herein is a Trade Union registered under the Indian Trade Unions Act,
1926. The first respondent herein is an industrial establishment carrying on
business in Engineering Industry. It admittedly employed more than 100 persons
in its factory at Ghaziabad. A notice was issued by it on or
about 21.9.1998 declaring its intention to close down the said factory at Ghaziabad with effect from 23.9.1998 as a
result whereof it was notified that services of 99 workmen would be terminated.
An
industrial dispute was raised by the appellant herein on or about 23.9.1998
questioning the validity of the said notice raising a factual plea that more
than 300 workmen are employed by the first respondent in its Ghaziabad establishment and, thus, the
Industrial Disputes Act, 1947 (hereinafter referred to as "the Central
Act") would be applicable. Pursuant to or in furtherance of the purported
complaint made by the appellant herein, a notice was served by the Assistant Labour
Commissioner upon the first respondent herein directing it to show cause as to
why it should not be prosecuted for contravention of the provisions contained
in Section 25 of the Central Act. In its reply dated 3.10.1998, the first
respondent raised a plea to the effect that as the number of employees in the
said industrial undertaking was less than 300, no permission for closure of the
industrial undertaking was required in view of Section 6-W read with Section
6-V of Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as
'the State Act').
Two
recovery certificates were issued against the first respondent towards the
salary of the workmen under the State Act. Three writ petitions came to be
filed by the first respondent questioning the show-cause notice as also the
recovery certificates aforementioned. The appellant herein also filed a writ
petition questioning the closure notice issued by the appellant. By reason of
the impugned judgment, the writ petitions filed by the first respondent were
allowed, whereas the writ petition filed by the appellant herein was dismissed.
The
High Court in its impugned judgment held that having regard to the fact that
Chapter V-B of the Central Act was inserted on or about 21.8.1984, the State
Act having been enacted in the year 1983 whereby and whereunder Section 6-V to
6-X were inserted, the latter shall, having regard to Article 254 (2) of the
Constitution of India, prevail over the former. The High Court although took
notice of the fact that the Chapter V-B of the Central Act came into force in
the year 1984, it was held that in view of the phraseology used in Article 254
the repugnancy has to be tested in terms of the date of enactment of the
legislation in preference to the date of its coming into force. In support of
its aforementioned conclusion, strong reliance was placed by the High Court on
the decision of this Court in Pt. Rishikesh
SUBMISSIONS:
Mr. Gaurab
Banerjee, learned senior counsel appearing on behalf of the appellant has
raised a number of contentions in support of these appeals. At the outset the
learned Counsel had taken us through the relevant provisions of the Central
Act, State Act and submitted as under:
(i) A
perusal of the Central Act would show that the relevant provisions relating to
closure are found in Chapter V-B of the Act covering Sections 25K to 25S.
Section
25K, as it stands, provides that Chapter VB applies to industrial
establishments employing not less than 100 workmen. Section 25O provides for
the procedure for closing down an undertaking. Section 25S provides inter alia
that Section 25J in Chapter V-A shall also apply in relation to an industrial
establishment to which the provisions of Chapter V-B would apply. A reading of
the said provision and in particular Sub-Section (2) thereof would show that
the Central Act would govern the rights and liabilities of both the employers
and the workmen insofar as they relate to layoff and retrenchment
notwithstanding the State Act laying down provision to the contrary and in that
view of the matter the Central Act shall be applicable.
(ii)
Reading Sections 25K and 25S of the Central Act along with Section 25J of the
Central Act, it is clear that in relation to industrial establishments having
more than 100 workmen, the rights of workmen in respect of layoff, retrenchment
and closure would have to be decided as per the Central Act, regardless of any
State law. Necessarily the procedure under Section 25O would have to be
followed in such a case before effecting any closure.
(iii)
Sections 6J to 6Q of the State Act providing for layoff and retrenchment
although are in pari materia with Chapter V-A of the Central Act which contain
a non-obstante clause by way of Section 6R titled "Effect of Laws
Inconsistent with Section 6J to 6Q" and in terms of Sub-Section (2)
whereof the provisions of the State Act were to have effect over any other law
inconsistent with Section 6J to 6Q and in that view of the matter although
there was an irreconcilable conflict between the relevant provisions of State
Act and the Central Act as has been held by this Court in U.P. Electricity
Supply SCR 507]; but in relation to Chapter V-B there does not exist any such
conflict inasmuch as whereas Section 25J has become part of Chapter V-B by
reason of Section 25S of the Central Act, Section 6R of the State Act remained
unaltered and in that view of the matter the non-obstante clause contained
therein make the same prevail over the State Act.
(iv)
In terms of Section 25O of the Central Act, the provisions of Chapter V-B would
be applicable to an industrial establishment employing one hundred or more
workmen; and although in terms of the State Act inter alia the provisions
relating to those would not apply to industrial establishment employing less
than 300 workmen, but there does not exist any irreconcilable or intolerable
inconsistency as it is possible to apply both the Central Act and the State Act
by the employer upon following the procedure laid down under the Central Act
and, thus, it is possible for the employer to obey both the laws.
There,
thus, does not exist any contradiction or repugnancy. Reliance in this behalf
has been placed on M/s. Ram Chandra Mawa Lal, Varanasi and Others [(1955) 1 SCR 799], Municipal Corporation of
Delhi SCC 431].
(v) In
any event, even assuming that Article 254 of the Constitution would be
attracted in the instant case, Section 6V to 6W of the State Act having
received the assent of the President on 10.10.1983 and the Central Act (Act No.
46 of 1982) having been brought into force with effect from 21.8.1984, the
question of Presidential Assent of the State Act must be Singh [1939 FCR 193],
Ch. Tika Ramji & Others etc. Others [(1964) 2 SCR 87], Kerala State
Electricity [(1999) 9 SCC 620], Mr. Banerjee would submit that at the material
time when Presidential assent was obtained for the State Act in 1983, there was
no repugnancy in fact but there existed merely a future possibility of
repugnancy. Seeking to distinguish the decision of this Court in Rishikesh
(supra) Mr. Banerjee would urge that the same was distinguished Commissioner, Jabalpur and Others [(1999) 1 SCC 396].
Furthermore, as it was held as of fact in Rishikesh (supra) that there did not
exist any conflict, it was argued, the purported law laid down Clause (2) of
Article 254 must be held to be a mere obiter.
(vi)
In any event before Clause (2) of Article 254 is applied, a finding of fact
must be arrived at that the President was actually informed about the reason
for grant of his assent and as no records had been produced by the State
showing the proposal placed before the President by it, no inference can be
drawn that the same fulfilled the constitutional mandate. Reliance in this
behalf has been placed on Textile Corpn. (Maharashtra North) Ltd. And Others [(2002) 8 SCC 182].
Mr. Jayant
Bhushan, learned senior counsel appearing on behalf of the respondent, would,
on the other hand, submit that whereas under the State Act the procedure to
issue notice before the closure of the industrial undertaking was not required
to be followed, the Central Act and the State Act must be held to be
irreconcilable and repugnant to each other. The learned counsel would contend
that the provisions of the State Act and the Central Act produce two different
legal results and, in that view of the matter, Clause (2) of Article 254 would apply
having regard to the fact that the statutory schemes of both the Acts are
distinct and different.
Mr. Bhushan
would urge that keeping in view the fact that Clause (2) of Article 254 refers
to a Central Act which had already been made, the application thereof at a
later stage would be wholly immaterial and irrelevant.
The
learned counsel would submit that the decision of this Court in M.P. Shikshak
Congress (supra) is not applicable to the fact of the present case whereas the
decision in Rishikesh (supra) is.
As
regard applicability of ratio of this Court in Kaiser-I-Hind (supra), Mr. Bhushan,
would argue that the decisions relied therein clearly demonstrate that such a
question should be raised in the writ petition itself so as to enable the State
Government to bring the relevant documents on records. As the appellant herein
did not raise such a contention either in the writ petition or in the Special
Leave Petition, the learned counsel would contend, that the appellant should
not be permitted to raise the same at this stage particularly having regard to
the fact that there exists a presumption as regard legality and validity of an
official act.
As
regard applicability of the non-obstante clause contained in Section 25S vis-`-vis
Section 25J of the Central Act, Mr. Bhushan would submit that the former
introduced a non-obstante clause as regard Chapter V-A and, thus, Section 25J
cannot be held to have formed a part of Chapter V-B. In any event, he would
urge that even if Section 25S vis-`-vis Section 25J have an overriding effect,
the constitutional provisions contained in Clause (2) of Article 254 shall
prevail thereover.
ANALYSIS:
The
Central Act as also the State Act have been enacted in terms of Entry 22 of
List III of the Seventh Schedule of Constitution of India. Both Acts were
enacted in the year 1947. Chapter V-A of the Central Act relates to layoff and
retrenchment which was inserted by Act No. 43 of 1953.
Section
25J provides for effect of laws inconsistent with Chapter V-A of the Central
Act. It had an overriding effect. The State Act was amended in the year 1957
providing for layoff and retrenchment. It is not in dispute that Section 6R of
the State Act provides for effect of laws inconsistent with Sections 6J to 6Q
and in terms of sub- Section (2) thereof, the provision of Section 6R shall be
deemed not to affect the provision of any other law for the time being in
force.
The
Parliament introduced special provisions relating to layoff, retrenchment and
closure by inserting Chapter V-B in the Central Act in certain establishments
containing Section 25K to 25S in the year 1976. In terms of Section 25K,
Chapter V-B was to apply in an establishment in which not less than 300 workmen
are employed. Section 25S provides that certain provisions of Chapter V-A
including Section 25J shall apply to an industrial establishment to which the
provisions of Chapter V-B apply.
It may
be true that the reason for amending Chapter V-B of the Central Act by reason
of Act No. 46 of 1982 inter alia was to extend the beneficient provisions to
workmen of small establishments by reducing the existing employment limit
thence from 300 to 100. But it is equally true that the State Act was amended
by Act No. 26 of 1983 after the amendment of the Central Act. It is not in dispute
that Section 25K and Section 25O of the Central Act are in pari materia with
Sections 6V and 6W of the State Act. We must also notice that whereas the
Central Act received the President's Assent on 31.8.1982, the State Act
received the President's Assent on 10.10.1983. It is also not in dispute that
by reason of the State Act the Chapter relating to layoff retrenchment and
closure was made applicable in relation to an industrial establishment wherein
not less than 300 workmen are employed. The amending Act of 1982 was published
in Gazette of India on 1.9.1982 and was given effect to from 21.8.1984 whereas
the State Act was published in the U.P. Gazette on 12.10.1983 and was given
effect to from 3.8.1983.
CONSTITUTIONAL
SCHEME:
Before
analyzing the relevant provisions of the State Acts vis-`-vis 'the Act', we may
have an overview of the constitutional scheme. Articles 245 and 246 of the
Constitution of India read with the Seventh Schedule and Legislative Lists
contained therein prescribe the extent of legislative competence of Parliament
and State Legislatures.
Parliament
has exclusive power to make laws with respect of any of the matters enumerated
in List I in the Seventh Schedule. Similarly, State Legislatures have exclusive
power to make laws in respect of any of the matters enumerated in List II, but
the questions raised herein must be considered keeping in mind the fact that
the Parliament and State Legislatures both have legislative power to make laws
with respect to any matter enumerated in the Concurrent List.
The
various entries in the three Lists are fields of legislation. They are designed
to define and delimit the respective areas of legislative competence of the Union and State Legislatures. Since legislative subjects
cannot always be divided into water tight compartments; some overlappings
between List I, II and III of the Seventh Schedule is inevitable.
As in
a federal Constitution division of legislative powers between the Central and
Provincial Legislatures exists, controversies arise as regards encroachment of
one legislative power by the other particularly in cases where both the Union
as well as the State Legislation have the competence to enact laws. Article 254
provides that if any provision of a law made by the Legislature of a State is
repugnant to any provision made by the Parliament which Parliament is competent
to enact, or to any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List then subject to provisions of clause
(2), the law made by the Parliament shall prevail to the extent of the
repugnancy required.
In
terms of clause 2 of Article 254 of the Constitution of India where a law made
by the legislature of a State with respect to one of the matters enumerated in
the Concurrent List contains any provisions repugnant to the provisions of an
earlier law made by the Parliament or an existing law with respect to the
matters, then the law so made by the Legislature of such State shall, if it has
been reserved for consideration of the President and has received its assent,
prevail in that State. It is not in dispute that the 1961 Act has received the
assent of the President of India and, thus, would prevail over any
parliamentary law governing the same field.
Article
254 of the Constitution of India would be attracted only when legislations
covering the same ground both by Centre and by the Province operate in the
field; both of them being competent to enact. [See Deep Chand vs. State of Uttar Pradesh and Others. [AIR 1959 SC 648]; M. Industries
Ltd. And Ors., [2004 (1) SCALE 425].
Recourse
to the said principles, however, would be resorted to only when there exists
direct conflict between two provisions and not otherwise. Once it is held that
the law made by the Parliament and the State Legislature occupy the same field,
the subsequent legislation made by the State which had received the assent of
the President of India indisputably would prevail over the parliamentary Act
when there exists direct conflict between two enactments. Both the laws would
ordinarily be allowed to have their play in their own respective fields.
However, in the event, there exists any conflict, the Parliamentary Act or the
State Act shall prevail over the other depending upon the fact as to whether
the assent of the President has been obtained therefor or not.
The
Central Act and the State Act indisputably cover the same field. The
jurisdiction of the State Legislature to enact a law by a Parliamentary
legislation is not impermissible. Subject to the provisions contained in
Article 254 of the Constitution of India, both will operate in their respective
fields. The Constitutional Scheme in this behalf is absolutely clear and
unambiguous. In this case, this Court is not concerned with the conflicting
legislations operating in the same field by reason of enactments made by the
Parliament and the State in exercise of their respective legislative powers
contained in List I and List II of the Seventh Schedule of Constitution of
India but admittedly the field being the same, a question would arise as regard
the effect of one Act over the other in the event it is found that there exists
a conflict. For the said purpose, it is not necessary that the conflict would
be direct only in a case wherein the provisions of one Act would have to be
disobeyed if the provisions of the other is followed. The conflict may exist
even where both the laws lead to different legal results.
In Zaverbhai
Amaidas (supra), it is stated:
"The
principle embodied in Section 107 (2) and Article 254 (2) is that when there is
legislation covering the same ground both by the centre and by the Province,
both of them being competent to enact the same, the law of the Centre should
prevail over that of the State." In M. Karunanidhi (supra) the fact of the
matter was completely different. Therein the scheme of the two Acts was not in
conflict with each other. This Court referred to Colin Howard's Australian
Federal Constitutional Law, 2nd Amaidas (supra), Tika Ramji (supra), Deep Chand
(supra) and opining:
""1.
That in order to decide the question of repugnancy it must be shown that the
two enactments contain inconsistent and irreconcilable provisions so that they
cannot stand together or operate in the same field.
2.
That there can be no repeal by implication unless the inconsistency appears on
the face of the two statutes.
3.
That where the two statutes occupy a particular field, but there is room or
possibility of both the statutes operating in the same field without coming
into collision with each other, no repugnancy results.
4.
That where there is no inconsistency but a statute occupying the same field
seeks to create distinct and separate offences, no question of repugnancy
arises and both the statutes continue to operate in the same field." The
judgments of this Court clearly lay down the law to the effect that if two Acts
produce two different legal results, a conflict will arise.
The
State Act lays down a complete exhaustive code. It covers the same
subject-matter as contained in Sections 25K and 25O of the Central Act. Both
the State Act and the Central Act contain penal provisions. If the procedures
laid down in the Central Act are not applicable, a person need not comply the
provisions therein keeping in view the fact that its industrial establishment
is covered by the State Act in terms whereof the applicability of the relevant
provisions would be attracted only when the establishment employees more than
300 persons.
In Tika
Ramji (supra), the question which arose for consideration was as to whether
there existed a repugnancy between the U.P. Sugarcane (Regulation of Supply and
Purchase) Act 1953 which was enacted in terms of Entry 33 of List III of the
Seventh Schedule of the Constitution and the notifications issued thereunder vis-`-vis
the Industries (Development and Regulation) Act, 1951. The Court referred to
Nicholas's Australian Constitution, 2nd Ed. Page 303, which reads thus :
"(1)
There may be inconsistency in the actual terms of the competing statutes (R. V. Brisbane Licensing Court, (1920 28 CLR 23).
(2)
Though there may be no direct conflict, a State law may be inoperative because
the Common-wealth law, or the award of the Commonwealth Court, is intended to
be a complete exhaustive code (Clyde Engineering Co. Ltd. V. Cowburn, (1926) 37
C.L.R. 466).
(3)
Even in the absence of intention, a conflict may arise when both State and
Commonwealth seek to exercise their powers over the same subject matter
(Victoria v. Commonwealth, (1937) 58 C.L.R. 618; Wenn V. Attorney-General (Vict.),
(1948) 77 C.L.R. 84).
Isaacs,
J. In Clyde Engineering Company, Limited V. Cowburn laid down one test of
inconsistency as conclusive : "If, however, a competent legislature
expressly or implicitly evinces its intention to cover the whole field, that is
a conclusive test of inconsistency where another Legislature assumes to enter
to any extent upon the same field"." In a case, thus, where both the
State Act and the Central Act have been enacted in terms of List III of the
Seventh Schedule of the Constitution of India, the question of repugnancy as
envisaged under Article 254 would arise.
In
that type of cases, it is well-settled that in absence of Presidential Assent,
the Parliamentary Act would prevail and where the assent has been received, the
State Act would.
Madhya
Pradesh [2003 (10) SCALE 380]) The question again came up for consideration
before a Constitution Bench of this Court in ITC Ltd. vs. Agricultural Produce
Market Committee and Others [(2002) 9 SCC 232]. The majority applied Tika Ramji
(supra) having regard to both the positive test and negative test evolved
therein. One of us (Sabharwal,J.) proceeded to uphold the market fee levied on
tobacco on the basis that Parliament was not competent to pass legislation in
respect of sale of agricultural produce of tobacco covered by Entry 52 of the
Union List under which the Parliament can legislate only in respect of the
industries, namely, "the process of manufacture or production". It
was held that the activity regarding sale of raw tobacco as provided in the
Tobacco Board Act would not be regarded as "industry". Ruma Pal, J.
in her concurring judgment observed :
"To
sum up: the word 'Industry' for the purposes of Entry 52 of List I has been
firmly confined by Tika Ramji to the process of manufacture or production only.
Subsequent decisions including those of other Constitution Benches have
re-affirmed that Tika Ramji case authoritatively defined the word 'industry' -
to mean the process of manufacture or production and that it does not include
the raw materials used in the industry or the distribution of the products of
the industry. Given the constitutional framework, and the weight of judicial
authority it is not possible to accept an argument canvassing a wider meaning
of the word 'industry'. Whatever the word may mean in any other context, it
must be understood in the Constitutional context as meaning 'manufacture or
production'." Pattnaik, J., however, for himself and Bharucha, J. (as the
learned Chief Justices then were) observed:
"In
view of the aforesaid rules of interpretation as well as the Constitution Bench
decision referred to above, it is difficult for us to accept the contention of
Mr. Dwivedi that the word "industry" in Entry 52 of List I should be
given a restricted meaning, so as to exclude from its purview the subject of
legislation coming within entry 27 or Entry 14 of List II. Bearing in mind the
constitutional scheme of supremacy of Parliament, the normal rule of
interpretation of an Entry in any of the lists in the Seventh Schedule of the
Constitution, the object of taking over the control of the tobacco industry by
the Parliament, on making a declaration as required under Entry 52 of List I
and on examining the different provisions of the Tobacco Board Act, we see no
justification for giving a restricted meaning to the expression "industry'
in Entry 52 of List I, nor do we find any justification in the contention of
the counsel appearing for the States and also different Market Committees that
the provisions contained in Tobacco Board Act dealing with the growing of
tobacco as well as making provisions for sale and purchase of tobacco, must be
held to be beyond the legislative competence of Parliament, as it does not come
within the so-called narrow meaning of the expression "industry" on the
ground that otherwise it would denude the State Legislature of its power to
make law dealing with markets under Entry 28, dealing with agriculture under
Entry 14 and dealing with goods under Entry 27 of List II. Such an approach of
interpretation in our considered opinion would be against the very scheme of
the constitution and supremacy of Parliament and such an approach towards
interpreting the power sharing devices in relation to entries in List I and
List II would be against the thrust towards centralisation. In our considered
opinion, therefore, the word "industry' in Entry 52 of List I should not
be given any restricted meaning and should be interpreted in a manner so as to
enable the Parliament to make law in relation to the subject mater which is
declared and whose control has been taken over to bring within its sweep any
ancillary matter, which can be said to be reasonably included within the power
and which may be incidental to the subject of legislation,so that Parliament
would be able to make an effective law. So constructed and on examining
different provisions of the Tobacco Board Act, we do not find any lack of
legislative competence with Parliament so as to enact any of the provisions
contained in the said Act, the Act in question having been enacted by
Parliament on a declaration being made of taking over of the control of the
Tobacco industry by the Union and the Act being intended for the development of
the said industry.
Keeping
in view the constitutional scheme vis-`-vis the Central Act and the State Act,
we are of the opinion that there exists a conflict and, thus, Article 254 of
the Constitution would be attracted.
Date
of Coming into Force of the Central Act Is it material? The phraseology used
in Article 254 of the Constitution of India is clear and unambiguous. It does
not contemplate coming into effect of a law having regard to the nature of the
legislation as a conditional one. It in no uncertain terms states that the
conflict is required to be found out keeping in view a law which has already
been made. The makers of the Constitution deliberately and consciously used
past tense. It has, thus, to be given its ordinary meaning.
So far
as the decisions of this Court in Rishikesh (supra) and M.P. Shikshak Congress
(supra) are concerned, suffice it to state that in the former a question did
arise as to the applicability of the Central law vis-`-vis the State amendment
which was answered saying:
"17...
The emphasis as rightly stressed by Shri Parag is "any amendment to CPC
made by the State Legislature or a provision by the High Court" before the
'commencement' of this Act stood repealed. It is to be noted here that the
Central Act is an Amending Act, not a repealing and consolidating statute to
supplant the principal Act, namely, Act 5 of 1908. Since CPC is a concurrent
subject, Parliament and the Legislature of State or a High Court in respect of
orders in the Schedule are competent to enact or amend CPC respectively. In
fact several local amendments made to CPC before the commencement of the
Central Act do exist. Pursuant to the recommendation made by the Law Commission
of India to shorten the litigation, Parliament made the Central Act to
streamline the procedure. It is true that inconsistency in the operation of the
Central and the State law would generally arise only after the respective Acts
commenced their operation. Section 3(13) of the General Clauses Act defines
'commencement' to mean the day on which the Act or Regulation comes into force.
The Founding Fathers were cognizant to the distinction between making the law
and commencement of the operation of the Act or Regulation. Article 254,
clauses (1) and (2) and in a way Section 97 of the Central Act are also alive
to the distinction between making the law and commencement of the law. In
Collins English Dictionary, at p. 889 'make' is defined to mean, to "cause
to exist", "to bring about" or "to produce".
In
Black's Law Dictionary, 6th Edn. at p. 955, 'make' is defined as "to cause
to exist... to do in form of law; to perform with due formalities; to execute
in legal form;...". The verb 'made' in Article 254 brings out the
constitutional emanation that it is the making of the law by the respective
constituent legislatures, namely, Parliament and the State Legislature as decisive
factor. Commencement of the Act is distinct from making the law. As soon as
assent is given by the President to the law passed by Parliament it becomes
law. Commencement of the Act may be expressed in the Act itself, namely, from
the moment the assent was given by the President and published in the Gazette,
it becomes operative. The operation may be postponed giving power to the
executive or delegated legislation to bring the Act into force at a particular
time unless otherwise provided. The Central Act came into operation on the date
it received the assent of the President and shall be published in the Gazette
and immediately on the expiration of the day preceding its commencement it
became operative.
Therefore,
from midnight on the day on which the Central Act was published in the Gazette
of India, it became the law.
Admittedly,
the Central Act was assented to by the President on 9-9-1976 and was published
in the Gazette of India on 10- 9-1976. This would be clear when we see the
legislative procedure envisaged in Articles 107 to 109 and assent of the
President under Article 111 which says that when a Bill has been passed by the
House of the People, it shall be presented to the President and the President
shall either give his assent to the Bill or withhold his assent therefrom. The
proviso is not material for the purpose of this case. Once the President gives
assent it becomes law and becomes effective when it is published in the
Gazette. The making of the law is thus complete unless it is amended in accordance
with the procedure prescribed in Articles 107 to 109 of the Constitution.
Equally is the procedure of the State Legislature. Inconsistency or
incompatibility in the law on concurrent subject, by operation of Article 254,
clauses (1) and (2) does not depend upon the commencement of the respective
Acts made by Parliament and the State Legislature. Therefore, the emphasis on
commencement of the Act and inconsistency in the operation thereafter does not
become relevant when its voidness is required to be decided on the anvil of
Article 254(1).
Moreover,
the legislative business of making law entailing with valuable public time and
enormous expenditure would not be made to depend on the volition of the
executive to notify the commencement of the Act. Incompatibility or repugnancy
would be apparent when the effect of the operation is visualised by comparative
study." It was further held:
"18...The
legislative business done by the appropriate State Legislature cannot be
reduced to redundancy by the executive inaction or choice by the Central
Government by issuing different dates for the commencement of different
provisions of the Central Act. The Constitution, therefore, made a clear
demarcation between making the law and commencement of the law which, therefore,
bears relevance for giving effect to Article 254." It was, therefore, a
case where having regard to the authority delegated to the executive the Act
was to come into effect at a later date.
In
M.P. Shikshak Congress (supra), on the other hand, the Central Act had no
application in relation to educational institution whereas the State Act did. Only
by reason of a legislative action, the Act was extended to educational
institutions and, thus, evidently, the question of repugnancy arose and not
prior thereto upon the provisions of the Act being extended to a thitherto
uncovered field. In M.P. Shikshak Congress (supra), the matter involved
application of law whereas in Rishikesh (supra) the question was enforcement of
an Act. Both situations stand on different footings.
Keeping
in view the plain language used in Article 254(2) of the Constitution of India
we are of the opinion that the State Act in the fact and circumstance of this
case, keeping in view the Presidential Assent given thereto shall prevail over
the Central Act.
Kaiser-I-Hind:
It is
true that this Court held that with a view to giving meaningful assent by the
President, placing the matter before the President reserving for his
consideration bring to his notice purported conflict is not an empty formality.
Shah, J. speaking for the majority observed:
"20.
It is true that President's assent as notified in the Act nowhere mentions that
assent was obtained qua repugnancy between the State legislation and specified
certain law or laws of the Parliament. But from this, it also cannot be
inferred that as the President has given assent, all earlier law/laws on the
subject would not prevail in the State. As discussed above before grant of the
assent, consideration of the reasons for having such law is necessary and the
consideration would mean consideration of the proposal made by the State for
the law enacted despite it being repugnant to the earlier law made by the
Parliament on the same subject.
If the
proposal made by the State is limited qua the repugnancy of the State law and
law or laws specified in the said proposal, then it cannot be said that the
assent was granted qua the repugnancy between the State law and other laws for
which no assent was sought for. Take for illustration that a particular
provision, namely, Section 3 of the State law is repugnant to enactment 'A'
made by Parliament; other provision namely Section 4 is repugnant to some
provisions of enactment 'B' made by Parliament and Sections 5 and 6 are
repugnant to some provisions of enactment 'C' and the State submits proposal
seeking 'assent' mentioning repugnancy between the State law and provisions of
enactments 'A' and 'B' without mentioning anything with regard to enactment
'C'. In this set of circumstances, if the assent of the President is obtained,
the State law with regard to enactments 'A' and 'B' would prevail but with
regard to 'C', there is no proposal and hence there is no 'consideration' or
'assent'. Proposal by the State pointing out repugnancy between the State law and
of the law enacted by the Parliament is a sine qua non for 'consideration' and
'assent'. If there is no proposal, no question of 'consideration' or 'assent'
arises. For finding out whether 'assent' given by the President is restricted
or unrestricted, the letter written or the proposal made by the State
Government for obtaining 'assent' is required to be looked into." The
question, however, is to be considered having regard to the fact situation
obtaining herein. The conflict between the Central Act and the State Act was
apparent. The State of Uttar Pradesh inserted Section 6V by Act No. 26 of 1983
being conscious of the fact that an Act had been passed to the contrary by the
Parliament in terms of Act No. 46 of 1982. So long Chapter V-B was applicable to
an industrial establishment engaging 300 or more persons, the State did not
insert any provision and allowed the Parliament to occupy the field relating to
layoff, retrenchment and closure of industrial undertakings. Only when the
number of workmen having regard to the legislative policy as would appear from
the Statements of Objects and Reasons was brought down to 100 from 300 for the
purpose of applicability of Chapter V-B of the Central Act, the amendment was
brought in by the State. The provisions contained in Section 6V by reason of
the 1983 Amendment by the Legislature of the State of Uttar Pradesh must have made consciously in
relation whereto only the legislation was reserved for the Presidential Assent.
If the contention of the appellant was that the assent of the President was
obtained without clearly informing him the purpose for which the same was
sought for, it was necessary for them to raise such a plea in this behalf in
the writ petition. Not only such a plea had not been raised in the writ petition
or before the High Court, no such plea has been raised even in the Special
Leave Petition. We agree with Mr. Jayant Bhushan that in such a situation, the
appellant should not be permitted to raise the said question. We would,
therefore, proceed on the presumption that the State amended the Act having
regard to the provisions of the Central Act and the Presidential Assent was
sought for only on account thereof.
Section
114 (e) of the Indian Evidence Act raises a presumption that all official acts
must have been performed regularly. Section 114(f) of the said Act raises a
presumption that the common course of business has been followed in particular
cases. The said presumptions, therefore, would apply in this case also. In any
event, we do not find any reason to allow the appellant to raise the said plea
before this Court for the first time.
EFFECT
OF NON-OBSTANTE CLAUSE:
The
contention of Mr. Banerjee to the effect that Section 25J of the Central Act
has been incorporated by reference in Section 25S cannot be accepted. Section
25S does not introduce a non-obstante clause as regard Chapter V-A.
Furthermore, Section 25J is not a part of Chapter V-B.
By
reason of Section 25S, the provisions of Chapter V-A were made applicable only
in relation to certain establishments referred to in Chapter V-B. The
Parliament has deliberately used the words "so far as may be" which
would also indicate that provisions of Chapter V-B were to apply to the
industrial establishments mentioned in Chapter V-A. The non-obstante clause
contained in Section 25J does not apply to the entire Chapter V-B.
Applicability of Chapter V-A in relation to the industrial establishments
covered by Chapter V-B in terms of Section 25J vis-`-vis Section 25S is
permissible but the contention cannot be taken any further so as to make
Section 25O of the Central Act prevail over the State Act by taking recourse to
the non-obstante clause.
Non-obstante
clause contained in Section 25J is, thus, required to be kept confined to
Chapter V-A only and in that view of the matter we have no hesitation in
holding that Chapter V-B does not have an overriding effect over the State Act.
In any
event, such a question could have arisen for consideration if the Central Act
and the State Act had been enacted in terms of different entries of List I and
List II of the Seventh Schedule of the Constitution of India. In this case,
admittedly both the Central Act and the State Act had been enacted in terms of
Entry 22 of List III of the Seventh Schedule of Constitution of India. In case
of any conflict therefor the constitutional scheme contained in Article 254
will have to be applied. Even if Section 25S of the State Act is read to have
an overriding effect, undoubtedly the provisions of the supreme lax shall
prevail over a statute. A non-obstante clause contained in a statute cannot
override the provisions of the Constitution of India.
CONCLUSION:
For
the foregoing reasons, we are of the opinion that there is no merit in these
appeals which are accordingly dismissed. No costs.
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