TaxTMI 
TaxTMI 
2004 (4) TMI 528
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....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 que....
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....e 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 material 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 SCR 507]; but in relation to Chapter V-B there do....
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....n M.P. Shikshak Congress and Others Vs. R.P.F. 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 Kaiser-I-Hind Pvt. Ltd. and Another Vs. National 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 learne....
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....vides 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 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 25O of the Central Act are in pari materia with Sectio....
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.... 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. Karunanidhi (supra) and The State of West Bengal Vs. Kesoram Industries Ltd. And Ors., [2004 (1) SCALE 425....
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....h 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 Orissa Vs. M.A. Tulloch & Co. [(1964) 4 SCR 461] 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 re....
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.... Assent, the Parliamentary Act would prevail and where the assent has been received, the State Act would. (See also M.P.A.I.T. Permit Owners Assn. & Anr. Vs. State of 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 o....
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....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 sche....
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....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 opera....
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....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 legislati....
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....e 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. W....