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CASE NO.:

Appeal (civil) 86-89 of 2000

PETITIONER:

Engineering Kamgar Union

RESPONDENT:

M/s. Electro Steels Castings Ltd. & Anr.

DATE OF JUDGMENT: 16/04/2004

BENCH:

Y.K. Sabharwal & S.B. Sinha.

JUDGMENT:

J U D G M E N T

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

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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:

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

and Another Vs. Salma Begum [(1995) 4 SCC 718].

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

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"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 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

Vs. State of Uttar Pradesh and Others [1984 (Supp)

SCC 28], Zaverbhai Amaidas Vs. The State of Bombay

[(1955) 1 SCR 799], Municipal Corporation of Delhi

Vs. Shiv Shanker [(1971) 1 SCC 442] and M.

Karunanidhi Vs. Union of India and Another [(1979) 3

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

judged. Relying on Shyamakantlal Vs. Rambhajan

Singh [1939 FCR 193], Ch. Tika Ramji & Others etc.

Vs. the State of Uttar Pradesh & Others [1956 SCR

393], Municipal Council Palai Vs. T.J. Joseph and

Others [(1964) 2 SCR 87], Kerala State Electricity

Board Vs. Indian Aluminum Co. [(1976) 1 SCR 552] and

Belsund Sugar Co. Ltd. Vs. State of Bihar and Others

[(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

in 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.

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(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 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

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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.

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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.

Karunanidhi (supra) and The State of West Bengal Vs. Kesoram

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

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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

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

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.

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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.

(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 :

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"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

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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 \026 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

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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

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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,

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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

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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:

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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.