Kerala High Court
Suresh Babu vs Asst. Superintendent Of Police on 12 January, 2006
Equivalent citations: 2006(1)KLT647, (2006)IIILLJ377KER
Author: J.B. Koshy
Bench: J.B. Koshy, V. Ramkumar
JUDGMENT J.B. Koshy, J.
1. Petitioner is running a parcel service business. The activities of the petitioner's are mentioned in para 3 of the Writ Petition which is as follows:-
The parcel service business is one where the goods collected by the petitioner, have to be transported to various places as destined by consignors and consignees and vice versa. Apart from the lorries belong to Alleppey Parcel Service, hired lorries of the Alleppey Parcel Services and other goods vehicles are also coming to the petitioner's establishment. So also the goods already collected are transported through the same or various vehicles. The business parties are bringing goods to the petitioner's establishment vide various vehicles like box auto, tempo van, hand carts and also lorries. All the goods coming to the premises of establishment, vide various vehicles, are unloaded by the petitioner and his attached workers. So also the loading of goods after releasing from the establishment.
2. The main case of the petitioner is that Alleppey Parcel Service is a motor transport undertaking and, therefore, it is covered under the Motor Transport Workers Act. Hence, permanent employees who are exclusively engaged for loading and unloading work are covered under the above Act and, therefore, they need not be registered under the Kerala Headload Workers Act. It is their further contention that three persons are employed by them for doing the loading and unloading work and they applied for registration of the above three workers but identity card was issued to only one worker. Applications for the other two workers were refused and appeals are pending. According to the petitioner, the 4th respondent Union and their workers are creating obstruction to their work demanding headload work and therefore the petitioner wants police protection from this court. An interim police protect ion was granted provided the loading and unloading work is done only by the registered worker. Thereafter, the Writ Petition was amended for a declaration that registration under R.26A of the Kerala Head Load Workers Rules or any other allied provisions under the Kerala Head Load Workers Act and Rules are not required since the workers are governed by the provisions under the Motor Transport Workers Act, Rules and Schemes made thereunder.
3. The main question to be considered is whether the application of the Kerala Headload Workers Act is excluded in the petitioner's case. Admittedly, the petitioner's establishment is situated in a covered area under the Head Load Workers Act, 1978 and the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983. It is also admitted that the petitioner's establishment at Palakkad is not registered under the Motor Transport Workers Act and the workers of the petitioner are not registered under the Kerala Motor Transport Workers' Welfare Fund Act, 1985. They are also not enrolled as members of the Welfare Fund Scheme under the Kerala Motor Transport Workers' Welfare Fund Scheme, 1985.
4. The Motor Transport Workers Act, 1961 is a Central Act and it is a Special Act provided for the welfare of the motor transport workers and for regulating the conditions of their work as can be seen from the preamble of the Act. The contention of the petitioner is that being a Central Act provisions of that Act will prevail over the State Act and the petitioner's workers are covered under the Act. Non-registration of the petitioner's establishment and the workers under that Act only entail penal consequences but if that Act is applicable, the Kerala Headload Workers Act can have no application in that establishment and its workers. On the contrary, the 4th respondent Union as well as the Standing Counsel for the Headload Workers Welfare Fund Board submitted that as far as the Headload Workers Act is concerned it is a Special Act to regulate the employment of the headload workers in the State of Kerala, the opening portions of the Act reads as follows:-
An Act to Regulate the Employment of Headload Workers in the State of Kerala and to make provision for their Welfare, for the Settlement of Disputes in Respect of their Employment or Non-Employment and for matters connected therewith.
Preamble:- WHEREAS it is expedient to regulate the employment of headload workers in the State of Kerala and to make provision for their welfare, for the settlement of disputes in respect of their employment or non-employment and for matters connected therewith;
It is a special enactment for the head load workers engaged in the State of Kerala. Therefore, the Kerala Headload Workers Act, 1978 will prevail over the Motor Transport Workers Act.
5. Both Acts are labour welfare legislations coming under entry 24 of List III of Seventh Schedule to the Constitution and both the State and Central has got concurrent powers on the subject. Article 254 (1) of the Constitution of India provides that in case of repugnancy of any of the provisions of the State Act enacted on matters in the concurrent list, provisions of the Central Act would prevail subject to clause (2) of Art. 254. The Kerala Headload Workers Act received the assent of the President of India on 20-5-1981. Therefore, if there is conflict between the provisions, the Kerala Act will prevail in view of Article 254 (2). Article 254(2) reads as follows:
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
6. In this case, since Kerala Act is a subsequent Act received the assent of the President will prevail over the Central Act. In this connection, we refer to the decision of the Apex Court in Transmission Corporation of A.P. v. Ch.Prabhakar and Ors. AIR 2004 SC 3368.
7. Eventhough both the Acts contain non-obstante clause, since the Kerala Act is a subsequent Act, while framing the Kerala Act legislature was aware of the earlier Act and then made the above provisions and hence the provisions of the later Act will prevail. Section 37 of the Motor Transport Workers Act provides as follows:
Effect of laws and agreements inconsistent with this Act - (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act:
Provided that where under any such award, agreement, contract or service or otherwise a motor transport worker is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the motor transport worker shall continue to be entitled the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed as precluding any motor transport worker from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act.
Section 39 of the Kerala Headload Workers Act reads as follows:-
39. Effect of laws and agreements inconsistent with this Act and Schemes:--
(1) The provisions of this Act and the Schemes shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreementor contract of service, whether made before or after the commencement of this Section.
(2) No authority other than the Government, other Board or a committee shall be entitled to make any Scheme or do any other act conferring, or purporting to confer, any benefits on headload workers.
8. The learned counsel for the petitioner submitted that in Shri.Sarwan Singh and Anr. v. Shri Kasturi Lal it was held that when two or more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided with reference to the object and purpose of the laws under consideration. The learned counsel for the contesting respondents has also relied on the same decision and argued that the Headload Workers Act is intended for the protection of the Headload Workers in the State and considering the object of operation of the Kerala Act cannot be excluded for the headload workers in a motor transport industry mainly because they are working in a motor transport undertaking. In this connection, he referred to paragraphs 21 and 22 of the very same judgment wherein it was held that latter Act prevail over the former as legislature presumed to be aware of the former enactment while passing the subsequent enactment.
9. In Maruti Udyog Ltd. v. Ram Lal also the same view was held. Paragraphs 41 & 42 of the above judgment reads as follows:
41. The said Act contains a non obstante clause. It is well settled that when both statutes containing non obstante clauses are special statutes, an endeavour should be made to give effect to both of them, in case of conflict, later shall prevail".
42. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. it is cited.(SCC pp. 73-74, paras 9-10)
9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail The decisions cited in the above context are as follows: Maharashtra Ltd.: Sarwan Singh v. Kasturi Lal: Allahabad Bank v. Canara Bank and Ram Narain v. Simla Banking & Industrial Co. Ltd.
10. We may notice that the Special Court had in another case dealt with a similar contention. In Bhoruka Steel Ltd. v. Fairgrowth Financial Services Ltd. it had been contended that recovery proceedings under the Special Court Act should be stayed in view of the provisions of the 1985 Act. Rejecting this contention, the Special Court had come to the conclusion that the Special Court Act being a later enactment would prevail. The headnote which brings out succinctly the ratio of the said decision is as follows:
Where there are two special statutes which contain non obstante clauses the later statute must prevail. This is because at the time of enactment of the later statute, the legislature was aware of the earlier legislation and its non obstante clause. If the legislature still confers the later enactment with a non obstante clause it means that the legislature wanted that enactment to prevail. If the legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply.
The same view was expressed in Engineering Kamgar Union v. Electro Steels Castings Ltd. and Anr. . It was also held that law assented to by the President will prevail over the Central Legislation on the same field in view of Article 254(2) if there is repugnancy. It is a well settled preposition that onus is on the petitioner to prove that provisions of the Central Act and State Act contains repugnant provisions. He has to prove that the extent of repugnancy also. He has to establish that a provision or part of the provisions are repugnant. Mere possibility is not enough. Whether there is direct conflict between two statutes, whether the two statutes occupy the same field and whether legislature intents to lay down an exhaustive code in respect of the subject matter etc. also should be examined as held by the Apex Court in Bharat Hydro Power Corporation Ltd. and Ors. v. State of Assam and Anr. AIR 2004 SCW 2308. Here, provisions of Central Act, namely, Motor Transport Workers Act and Kerala Headload Workers Act are not repugnant. If petitioner has permanent workers in the establishment he need register them under the Headload Workers Act as attached workers and there is no obligation to register them under the Scheme.
10. The object of the legislation also cannot be lost sight of. As held by the Apex court in Ashoka Marketing Ltd. and Another v. Punjab National Bank and Ors. in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein (para 61). In case of conflict between two Special Acts, the later one will prevail as the maxim is leges posteriores priores conterarias abrogant. But, as far as possible, both Acts shall be harmoniously construed. If an interpretation is possible so as to avoid conflicts such interpretation shall be accepted, so that objects of both Acts can be fulfilled. There should be a clear inconsistency between the two enactments before giving an overriding effect to the non-obstante clause as held by the Apex Court in R.S. Raghunath v. State of Karnataka and Anr. . Here the object of both the Acts are to protect the interest of the workers. Petitioner was not able to demonstrate that any of the provisions of both the Acts are inconsistant or repugnant to each other. Therefore, the contentions of the petitioner that in view of the Motor Transport Workers Act, motor transport workers are excluded under the provisions of Kerala Headload Workers Act, are untenable.
11. Admittedly the petitioner's establishment is not a registered establishment under the Motor Transport Workers Act and his workers are also not registered under the Motor Transport Welfare Fund Act and the Scheme thereunder. In any event, the petitioner cannot say that in view of the Motor Transport Workers Act and the Motor Workers. Welfare Fund Scheme, their permanent workers who are exclusively doing loading and unloading work are not covered under the Headload Workers Act and there is no obligation to register them under the above Act. If a conductor or a cleaner of a bus or a heavy vehicle who is covered under the Motor Transport Workers Act and Welfare Fund Scheme does the loading and unloading work only incidentally, he need not be covered under the Headload Workers Act. According to the petitioner, he is not employing any driver, conductor or cleaner etc. Apart from the above, according to the petitioner, three permanent workers of the petitioner's establishment are engaged only for the loading and unloading work. It is true that under the classification of Motor Transport Workers Act, loading and unloading workers can be considered as Mazdoors. Petitioner's establishment is not registered under the Motor Transport Workers Act. Standing Counsel for the Motor Transport Welfare Fund Scheme also submitted that the Alleppey Parcel Service is covered and their employees are covered under the Motor Transport Workers Act and Scheme but the members of the petitioner's establishment are not registered under the Scheme or under the Act. It is true that if the petitioner has got permanent workers for the loading and unloading work, they can apply for registration under the Kerala Headload Workers Act as attached workers. A Full Bench of this Court in Raghavan v. Superintendent of Police 1998 (2) KLT 732 (FB) held that the registration of a Headload Worker under the Kerala Headload Workers Act is necessary even if one is a permanent worker of the establishment if he is doing the loading and unloading work. But such attached workers need not be registered under the Welfare Fund Scheme. In fact, the petitioners applied for registration and the application of one Manikandan was allowed and identity card was issued to him. But with regard to other two applications, that, was rejected. It is stated that the appeal filed by them is not yet decided by the appropriate authority, according to law. We are not expressing any opinion on the merits of the appeal in this Writ Petition. Appellate authority is directed to dispose of the same as expeditiously as possible, according to law. But at present, the petitioner can do the loading and unloading work with the help of the said Manikandan, the registered worker, without the obstruction of the Union. In such case, the police can afford protection to the petitioner. But, if any other workers are required for doing the loading and unloading work, the petitioner is bound to employ only registered workers as provided under the Headload Workers Act.
This Writ Petition is disposed of accordingly.