SUPREME COURT OF
Engineering Kamgar Union
Vs.
Electro Steels Castings Limited
C.A.Nos. 86-89 of 2000
(Y. K. Sabharwal and S. B. Sinha JJ.)
16.04.2004
JUDGMENT
S.B. SINHA
1. 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:
2. 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
3. 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 workman are employed by the first respondent in its
4. 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.
High Court Judgment:
5. The High Court in its impugned judgment held that having regard to the fact that Chapter V-B of the Central Act (Industrial Disputes Act, 1947 ).
Submissions:
7. 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 250 provides for the procedure for closing down an undertaking. Section25S 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 250 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 Co. Ltd. vs. R.K. Shukla and Anr. Etc. (1970) 1 CR 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 250 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 vs. State of Uttar Pradesh and others 1984 Supp(SCC) 28), Zaverbhai Amaidas vs. The State of Bombay ), Municipal Corporation of Delhi vs. Shiv Shanker ) and M. Karunanidhi vs. Union of India and Another ).
(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 judged. Relying on Shyamakantlal vs. Rambhajan Singh 1939 FCR 193), Ch. Tika
Ramji & others etc. vs. The State of Uttar
Pradesh and others 1956 SCR 393), Municipal Council Palai
vs. T.J. Joseph and others ), Kerala State
Electricity Board vs. Indian Aluminium Co. )
and Belsund Sugar Co. Ltd. vs. State of Bihar and
others 4), 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 in M.P.
Shikshak Congress and others vs. R.P.F. Commissioner,
(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. The reliance in this behalf has been
placed on Kaiser-I-Hind Pvt. Ltd. and Another vs. National Textile Corpn. (
8. 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, Clauses (2) of Article 254 would apply having regard to the
fact that the statutory schemes of both the Acts are distinct and different.
9. 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.
10. 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.
11. 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 to 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.
12. As
regard applicability of the non-obstante clause
contained in Section 25S vis-a-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 258 vis-a-vis
Section 25J have an overriding effect, the
Constitutional provisions contained in Clause (2) of Article 254 shall prevail thereover.
Analysis:
13. 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 year1947. 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.
14. The Parliament introduced special provisions relating to layoff, retrenchment and closure by inserting Chapter V-B in the Central Act in certain establishment 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. Section25S 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.
15. 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
beneficent 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 250 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 form 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:
16. Before analyzing
the relevant provisions of the State Acts vis-a-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 which respect of any of the matters enumerated in List I in the
Seventh Schedule. Similarly, State Legislature 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 which respect
to any matter enumerated in the Concurrent List.
17. The various entries in the three Lists are fields of legislation. They are
designed to defined and delimit the respective areas of legislative competence
of the
18. 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.
19. 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.
20. 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 competent to enact. (See Deep Chand vs.
State of
21. Recourse to the said principles, however, would be resorted to only when there exists direct conflict between the 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 and 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.
22. 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 the 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.
23. 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 Province, both
of them being competent to enact the same, the law of the Centre should prevail
over that of the State." *
24. 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 Edition, Hume vs. Palmer, 38 CLR 441
(Aus). Zaverbhai Amaidas (supra). Tika Ramji (supra), Deep Chand (supra) and State of
"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." *
25. 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.
26. The State Act lays down a complete exhaustive code. It covers the same subject-matter as contained in Sections 25K and 250 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 with 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.
27. 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 the List III of the Seventh Schedule of the Constitution and the notifications issued thereunder vis-a-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. vs. Brisbane Licensing Court, 1920 28 CLR 23).
(2)
Though there may be no direct conflict, a State law may be inoperative because
to Common-Wealth law, or the award of the
(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 (
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." *
28. 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, (See also M.P.A.I.I. Permit Owners Assn. & Anr. vs. State of Madhya Pradesh (2003) (10) SCALE 380).
29. The
question again some came up for consideration before a Constitution Bench of
this Court in ITC Ltd. vs. Agricultural Produce Market Committee and others . 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 legislative only in respect of the industries, namely,
'the process of manufacture or production." It has 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' * .
30. Pattanaik, 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
matter 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. *
31. Keeping in view the constitutional scheme vis-a-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?
32. 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 not
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.
33. 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-a-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 to 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
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 of Article 254." *
34. 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.
35. 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.
36. Keeping in view the plain language used in Article 252(2) of the Constitution of India we are of the opinion that the State Act in the fact and circumstances of this case, keeping in view the Presidential Assent given thereto shall prevail over the Central Act.
Kaiser-I-Hind.
37. 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 granted 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 of '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." *
38. 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
39. Section 114(e) of the Union 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:
40. 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
clauses 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-a-vis
Section 25S is permissible but the contention cannot be taken any further so as
to make Section 250 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.
41. 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 255 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:
42. For the foregoing reasons, we are of the opinion that there is no merit in
these appeals which are accordingly dismissed. No costs.