Vodafone Essar South Ltd vs The State Of Karnataka on 5 June, 2009

[Cites 21, Cited by 0]

Karnataka High Court

Vodafone Essar South Ltd vs The State Of Karnataka on 5 June, 2009

2. Petitioner is a Company VV _ pmvisions of the Companies Act and the Department of Teieeexsjmenieeﬁeﬁs. n Communications, Government of to ' ' mebile telephene sexvices {he Petitioner renders its name of "Vodafone" in about In order to make the Elempany available to the consumers' dealers, distributors, outlets, on the trade nagree by seihng SIM teisted commodities, petitioner has 'e~peIi€5:':s_4i:E?lS stores Where it is rendering service to the Ve't1steiﬁers;~._V Esee "store displays the hade name "VODAFONE" in ﬁttsnfef si1e§1f sieie. Te carry on the business in accordance had applied for grant of licence under the egfexiisiezggs 5:" the Act and Ruies made thereunder. Petitioner eeiaining the licence has opened severe} outlets, stores, "'«riisﬁibuﬁen centres displaying its trade name or brand name as '4 4V(}DAFONE" in front of its outiets by speeding nearly about 6 .2 K .9» (more rupees.

3. The State Government by notiﬁcation dated 31.' amended the Rules by substituting Rule 24-A for exhibition of name board and maiiing it estabiishment to show the name more pxedominantly by jpmviding _more seace language and by amending R111§--.e.'/éﬁ, previded» for contravention. Within 1v:b'..g1'ayg* <$i'" 'tile Labour Commissioner fo::wardeei VA to various departments same within two days Without§'eﬁe§_ :l!;1:a pursuance of the same, Senior Lab"0u2+. as per Annexures-C and D '=.upo:n 'ten ehow cause as to why action should not to Show the name board or a preéoeiieagﬁiy in Kannada language.

V '..4"pe::Vt:i1f.ioﬁ.er - Company being aggrieved by the noaacamg . Ruie 24-A and 26 of the Rules and 'cpnsequeﬁtéai netices has filed this Writ Petition. VA * On behalf of the petitioner, Sn'.Vijayashankar, learned Couzztsel submitted that, Rule 24--~A of the Rules is ultra .. ; m'res and unconstittittitmai as it violates Article 13 and 19 of the Consltitution and violaﬁve of the provisions of the Act. He submitted that, right to trade is a f11ndamenta,{~'--.._right guaranteed under Article 19(1){g) of the constituucm; % f"s~gie.h ﬁmdamental rights are subject tn restxictions, if V' by law made under the provisions. ' Constitution of India. In this Kamataka Shops and comme1A§;g;.,,.Est§h1{;nm¢h'§$"§._Acn $1961 -1' (hereinafter referred to the jw.e.f.

29.8.1964 by repealing ﬂie Establishments Act, 1948, Hydcrahagl Act, 1951.

Madras Shops and Mysore Shops and Estab}is}~1€111§i§£siA:_: intention to provide uniform W1"or regulation of the terxns and condéﬁgﬂs c:}fw,. employment in shops and com1z1e:j::i:31lLAest'4z£ii2v3,Visi111ieIi.i:s. The then Government of Mysore 3" by the Government of India further submitted that, thereafter there were sgveral aiijgmdments to the provisions 0f the Act. Hewever, «.j:ic.ither they ééms and objects of the Act nor the provisions of the aﬁigﬁﬁlafn any restricticn on the manner in which a trade to on, except regulating the conditions af service of {he V Efrmpioyees in the establishments.

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6. In this zegand, he referred to the provisions of the Act interaiia submitting that, the Act deals with namely, Chaflie: II deals with 1e@'strat:ien of establishments, Chapter work of employees, Chapter IV --- annual leayie' K Chapter V -- Wages and compe§isetl6£:, u "

Employment of Children anel ' Enforcement and Inspection. ,VIII."-' 'V and Pmceclure and Chapte-aj_ IX to these chapters and the he further submitted that, ::_1.o12e;e_f as regard to the manner in his product 1103: it suggests 2 board should be in a particular ml' smllnserl 'orél Ear language. He subnﬁtted that, Rl"}i€' 2.4-Auof tl_V1e'1Ru'V1es "being outside the scope of the Act I1; he referred tn the delegation of Section 40 of the Act to point out that, the S$ta__te Cmserﬁment is delegated with power to make rules " subimﬁifed that, Section 40 subsection (2) relates to rules in respect of health and safety and Welfare of h ...:le'1n§loyees. Subsection (3) of Section 40 refers to penalty for eentravention of the rules and subeection (4) of Section 40 requires the publication of the rules and Section 41 requires 1131523 to be laid before the State Legislamre. He further submitted that, any mic that is made, must cany o1'i{"»ii.he purpose of thtfi Act. He furthar i'efen'e€1 to by the State Gii)V6I'ﬂ}CIlE31'1t by K December 1963 and submitteﬁ none of the rules suggest 0: * establishment: to carry on hiéi-itradie iii ii} mazmrsr or requires to display 'ﬁcardii language. Refening to vaxiciiléy h¢:::'ii'i$i11§}é":iit¢:»::i that, Rule 24-9; does not ﬁtwiﬂzin of the objects of this Act nor it the Act anti submitted that, tha are ])}f'()V".i{i€€'i to market their precinct uncieréaiibfamil iiade name. Trade name being "VODA§F§O?$ Engiish and ¥3e:iI1g registered as a ai*;§;_ in $116 same will not only have an iJ:i;1--9éie;t "E3i}3i:1¢ss but it may amount to infringament of i {he }3AI'€%TifiSif3Il3i§::.t§16 Trade Marks Act. He submitted that, if " msttticﬁng a trader fram ﬁispiaying the name car in a manna' he requires for the purpase of ..__'"a;g;1:§f;%iV§isement or far thz: grxirpage (if marketing, the State Govamment by notiﬁcation cannet ﬂame a 11116, which may have 311 affect cf violation cf provisions of Tradé Marks Act. Even otherwise, Rule-24A of the Ruies is outside the of the delegated 1cgisIati<:m. and is unco13stituﬁoz1.:;31§:V:Vit:4'o:"aa1st} mfriuges the fundamental right guaranteeci 19(1)(g) of the Constituﬁon of india.

7. In support of his oontepiions. ho fefcnoog oleoision ;

mportcd in 1989 Vol. 3 KLJ 4:73 matter as co. mus» STATE' 01:' this Court had an occasion to purpose of the Act aoé this observed that, the Act is cnoooﬁd. v._t:':1j';Vaev""--:oos:1'di1:io11s of work and omp1oymont'iz¢--.%;}§o§;§é§id ofstablishments and other incidcr:ta1v:i1;.a:ﬁ;ox>s.v: bohind the icgisiation is socia} interest in §.ioa1f_ h-__of._v£ho~*'LWorkers who form a substantial .s.e§33e;:.'§;of ﬂzeVcozé3i:£11:.,1;Jl_tyvand in whose welfare the community ~o:SS*::1iiz;}j3rA vitally interested. Ameiioration of the cozidiﬁons of"ﬁwori:"wou]d be the main reason for any measure Lerovidifxg mgulation of the oontxaots of iabour. Act is H 4.'o13{Iy'..en§r1oagod to provide safety and bcttzer work condiﬁons and V A oonéitions of the employees in the establishment. fife to a éocision reported in 2002 Vol.2 KIJ 268 in the " ﬁiattor of LAXMAN OMANNA BI-EAMANE -93- STATE or KARNATAKA AND OTHERS and submitirod that, Ruie 24~A as it f%/ was earlier, fell for considerntion before this Court 311;!"-._this Ceurt has uphnkd the validity of the said. ruie. Refezjiaygi said judgment, iearned Samar Counsel submitted ﬂint V' A as then it Was, was tested by thisv~Cm11*t Vi Article 30 of the Constitution. As the "

only on the ground that, " ii district forms a linguistic zninority Liinsistennc display the heart} in Kannada ibg .:i'iV}'s2"t;icle 30 of the Constitution oflndiagapd igmcles 29 and 30 of the tbgaitl' does not in any way displaying the name boaxd of i.e., Maiathi along with Kannada it is of Article 29 of the vConstit'L;ﬁ'on. of V'Refé:rring to the said decision, he furtﬁhcar Rule WL54«A as it than was, was neither q{:e;5itao:i¢dfZfm;' of violation of fundamental mg' ht i nor was considered with regaxd to the 'i " ':irié'1egNa1ionvv:}i' iegslative power under Section 40 of the Act and A that, that said jndment: is per inqurium and fuﬁther Ewrsit petitixm having been ﬁled against the amendment of iiﬁns brought in on 33.12.2008, the eariier decisicn will not have any bearing on this case. He also referred to a decision

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mporteci in AIR 1 99? SC 2502 in the matter of AGRICULTURAL MARKET COMMf'I'TEE -us- SHALIMAR CHEMICAL afekgs LIMITED and submitted that, the Apex Court Rule 3 relating to 1:'/V3' of fee by market commitﬁeefias K that, rule of presunaption is bad in law? e£fee'€. V to the policy of the Act and the Apex rule. He submitted that, legisﬁeitaejéﬁj-i1.b1aie1.V. ao;m.%t;:1¢%'ee;§;51ic§% and iegal friction cannot be cxeaged by"

8. He also submitteci of Trade Marks Act onee_:h'e&;mark[Aor any change in the said sign and prosecution. The sign boafd_ n 3 has been registered as a trade mark, «.e§}ear.1 a_ naade to it may amount to 4_ of .p;fg;visions of the Trade Marks Act. He that, Trade Marks Act being legislated by the of Entry 49 of the List---}., any law that V sgvoulzifniae by the State Legisiatum either in pursuance of }3£13ve14 t1nder List--2 car under the cencument list would be under Article 254 9:' the Constituﬁou of India, if it VT ccanttazy $0 the previsiens of leg'slai:ien made by Farliaxnent in respect of subject matter in List-1 of Schedule VII of the Constitutitm of India.

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9. He aim refexred to another decision reported in :2 sec 77 in the matter of STATE OF "

OTHERS Mus» BASANT NAHATA and submitted 't.b_a.;}f,*;V1¢ig§s§:gu~v§' A policy must be in conformity with theI»Aco1:;._a:=.4£ii3;jufi§)Ii$_l'iﬁia:;1x:§§;1f§:

if that is not so, the Court's d¢c1a;auo5a_e1? the eV1eegi§:aﬁon: A unconstitutional cannot be oerio. of inteztferenee with the ._ Iegislamm shouid lay down the which the deiegatee has to tlee and vague delegation V. stéxtutelprovision as unconsﬁtwjtioﬁai...

10. He"V.sﬁhn§itfe&'..'Ath4et, 24-A being in violation of _Art:io1eu and ofthe Constitution of India and being eielegated "" "iegislaﬁon is unconstitutional and unenf:+rcéa&;:e.o 1"1 H0113, learned Advocate General submitted 'once "1':1:1e validity of an Act or the Rules is upheld, Court "jurisdiction to 1"€-COI1Sid€I" the same once again. in this '" he also relied on the judment of this Court; in LAXMAN ' OMANINA BHAMANEE case (supra) and submitted that. Rule 24- A as it was then, did pmvide for displaying the name beam! or

-4«.4Govemme;;tA1-to make rules.

Sig board of the establishment in Kannada language and this Court having upheld the said Rule, the subsequent amveﬁttinent is not amenable for questrioning before this Court. §'i"o' his contention, he relied on a decision zeporteci _ 8 in the matter of IZIELJ-II (mom AND M;'L§.s--

-~vs- SHAMBHU NATE MUKHERJI AN1i'o%i*HERs svuimjiteai' that, when the Court has held Rake?-'¥-A as'i:t_trt2e is not V pennissible to raise the issiie pn diﬁereht gound and submitted that it is easy as 'ci§ts<3ever__i:'t'es§i.3.V'§g1ﬁg3unds of attack to sustain the _e11oi%¢eti to raise such gonads once §A1[_»Ii§.§ 'a notiﬁcation cannot be strmckﬂ doyvtt to be placed before the Legislatureiaztd' by vigil of the legislature. 113; -He .'Sut§'m1;tted that, Section 40 of the Act I-V:.Ved:3feI*S%" tioiiéer "oz; thctvétéite Government to make rule to sub- serve the Act, Anything that is incidental to the t 0f . 'Etch the power is eonferreé on the State Display sf Sim beard «._§i;e'ds):mE:ii};'.anﬂy in Kannada language in the State 0f Kaxnataka be said as outside the eeope of delegated legislative _:uI§fG§¥6I' of the State Govemment,u:t1der Secﬁon 46 of the Act, insofar as shops and establishments are concerned, the sign .r:;:§,/ xi 9s*;»%/:

_ 33 _ board and the name board being incidental and the display of name bean} in Kannada language cannot be called as emside the scope of the delegated legjslaﬁon. In this regard, to a decision reported in (2003) 3 sec: 321 in STJOHIVS TEACHERS TRAINING E\LST1¥Vef3'E";Q.E.{}I<E1NA£,A A' DIRECTOR, NATIONAL COUNCIL FORV T:é'gAti*H£*;e:

AND ANOYHER and submitted _to ouﬁ1=whéther" V L' any legisiation suffers ﬂux}; excessi9e""deiegatios',' it_Ais_:§1ecessa1'y* to consider the subject matter, -ﬂie s§ihe1i1e':z:gxid the provisions of the Act including pream'i3ie-- circuxnstaslces in the backgealisd 1' ﬂse enacted. He also submit£eci.VVv " sissays presume that the suboxtiinaeg. virsﬁ and if the Court ﬁnds that two const;:ucti§$ns_VVare, the construction which validates 'V 'the be To support his contention that there évdseiiegaﬁon of legislative pcwer nor Rule 24-9; is on a decision nepsrteci in (1980) 1 .S'CfC 340 the s. of ms REGISTRAR op CO-OPERATIVE' TRIVANDRUM A.-ND AN'O'IHER -vs- K.KUNJA.sMU WERS and submitted that, the said case also pertains to 'V V _ .4 legislation and so-calw Henry VIII ciause and submitted that the Apex Court on interpretation has ebsczveci iae in eonsonanee with the purpose of the Act.

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than Court must examine the preamble, the scheme and ether available material to see if there axe any discernible gimjﬁelines and further euhmitted that, too rigorous app}ication§;..ef as ' the provisions of the Act may itself occasiona71-ﬁx V' frustxating the very objects of the Aef i::.sa1_;e'e.d of them. He further submitted that, Tamil Nadu Government had 3 of shops and estahlishmentg the board, predominantly in Tamil rule has been uphelé by the e A 'e

13. 1:.e?:hese:§1'eeieidiie;'iea:ned Acivocate General submittecf incidental to eany out the purpose of tlie een_fe1fs"p<;:§€ver on the delegated Iegisiation to

- make te s.£113'=-sengev the intendment of the Act and boaxti predominantly in Kannada language the fundamental right to carry on the trade nor it exeeeéiee of delegation or beyond the scope of deiegated ff ' ' Iegie}a.:ipn. "' 14-. Sri.Vijayaehankar, zeamee Senior Coimsel in reply "-«eﬁbieitted that, ineidentai cannot be independent, but it must He also /.

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reiterated the provisions of the Act and submitted that. merely because the rule is Iequired to he placed before the legislation does not get vaiidated if it is beyond ' delegated 1e§'s3.aﬁon. He alse sumrgesd' :;rg§£,' k A' question was not the subject matter * such, the writ petition cannot beT_;ejectedA'or .0-:1: the * L' guund that the issue haebeen it" he reiied on a judment mpeifed. 1520 and also 1991 Vol.4 sec 139 to sum; ' V:1;e_t_, rendenm without a judgment in per irzqunizm and earlier decision of this Court deajit this Writ petition nor the said decisie'1':__didV of subordinate legislation and as it ﬂdt affeci the petitionefs case.

-' v A iii tLl:ie.;&1i,ght ef"i:A1§e cantenﬁons raised by the pa1'tne' S. the_ é§1;evs'ti<}ji»-- for consideration is as under:

"'F_ﬁ7Iteif;ef: 24-13 of the Kamataka Shops and Establrehments Rules, 1963 is ultra virm 'A the cieiegaied Iegisiative power?"

16. To appreciate the contenﬁons ef the parties, it is

-ﬁecessaxy to look into the object, the scheme and intendment of the legislature to enact the Kantzzataka Shoes and Commercial

- E5- Estabiishmtznts Act, 1961. That: statement of objects and reasons of the Ac: is to have a unjforxn law in the §_)__f and emgioygent in Show and commemial b Before the Ac: was promulgated, enactments operating for diﬁ"erVe»n_tﬂ for .h!£z;§<f1vi*as n Madras Shops and Estabﬁshmeni:é;L'L».::5V:£.é:t1 and for Mysore: area. Mysore 1948 was in force, for Hydemlzﬁd' Shops and Establishments #195 Bombay ama, Bombay Shops'; was in force. To provide law, the leg'siat1,:re has brought in jp1"es'ei)tV aim and object to provide for _ the Iegxglation of cofiditiojéas of work and empioyment in shops Preamble of the Act reastis as n A 'An Jprovide for the regulation of oonditians of V wcrk ernplcrymeni in shops and <:9mmerm'a! x T t-zsiaiéfishrnents.

WHEREAS it is eywedient to provide for the r§éguIai2'on af conditions of work: and errzpfeytneni in shops and commercial mtabiishments and ether irzcidentai matters. "

g ' §

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There are nine chapters in all. Chapter II deals with Iegistration of establishments, Chapter III ---- Hotlrs of Work of employees, Chapter IV ---- annual leave with wages, Chapter V - "am compensation. Chapter VI --- Employment of Women, Chapter VII - Enforcement and inspec1:io;1,lv:A4(3ha'g;:i:fi?f._'lsillgf b

- Oﬁences, Penalties and Proceéure &isce11aneot1s. in Chapter-II, cmp_1oye:4*'oflcveIy requixes to register his estabnshmexgrin terms c.£'R1ﬁ; %3V--A by submittiog Foam-A. Any chmage xegistratioﬁ is"vrequ11ed' to be infozmed under the Inspector.

Section 6 deals wjmlglgsmg: o:'lé'stabiié1;;..vn¢n;1;;' {o be informed to the Inspe€:§or.__ with issue of appointment orders. Chls;pt;er--Iil segisﬁaﬁon of establishments. What is s.regisﬁat_:loﬁ of employment could be gathered fmm I3'(:t1l'l'.l.l)L-A pzovides for an application for '' estslalishment it requires the details of the Z ost,ablis11me_;1'tl the name of the business, number of " "'e1liployecs,vv._oden, Women and young persons. Similarly, the gasovisions relate to change in the establishment. closure . _?esltabﬁshment anti appoinment order to be issued by the einployer to the emgxloyees. Chapter-HI relates to providing Iegulation of Worlcing hours of the employees prohibiting the

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ernpioyer making the empioyees to work more than nine hours on any day any forty--eight he-urs in any week. It also regulates the overtime Work. Section 8 deals with extra Wage:3i f9r overtime Work; Secﬁon 9 deals with interval for rest. _ eieals with spreading of work. which should not "

htmrs inclusive of intervai for rest.

zestriction on opening and C10SiI1g'i}€}£1I'S (if the esf::£e1'isI§ﬁ1eI§;t £15 , no establishment shall be open.ed'V'VL'eaEriie_r or closeci later than the time' weekly holidays. Sccﬁon 13 dealg 5%,}; selling of the products (yutsidef closing hours.

Chapter-IVV *g1"an"£. 0f have with Wages, Wages dtmn' g leavcg xtief: advance ammmt. recovexy of unpaid wages: e.._'{3I1a1;§te:;'.*'?_ deeds with wages and compensation. ..\§{age$;V.»;}:3,;1u§'.t'z10t be anything contained in Payment of __ compensation under the Workmexfs Chapter-VI deals with Iesiaieﬁon on 'V VV e;;ap}oj?§B.g in the estabiishment, prohibiting women .4 " during the night hours. Chapter-VII deais V 'eﬂjfemement and inspecﬁon conferring y-owe: on the itxspeetor. (3hapter-VIII deals with penalties. Chapter-IX deals 3 {with misceiianeous as regard to maintenance of registers, '\

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recorés and éispiay of notieee; delegation of yower; dismissal of employees with notice and power to make rules.

17. Reading of these provisions of the "

abundantiy clear that, the Act is intendeéeetoézegjuiefe 'A u conditions of an employee in the esmeiishﬁieet There is nothing to indicate that. 9§Vnef"0f the * L' to regulate his trade in a pa;1icuiar_.e;{anne1j. If the,pro§is5ens of the Act: read with conespoﬁtﬁeg it clear that the Act is intended to '_of.&V'e-.iI 1.pioyees in the establishment se1"i§fic'e V' provide service conditione. " to the consequence of violaéon of 71:iie-- Act. Section 30 deais with penalties for vio'imj_io1}._C*--f fhejiiieovisions of Sections 4, 5, 6, 6~A, ':59, m,"":~1,:12e,A.33, k:s.1zs, 25 and 39 and also Sections 3, 1'7, 24,' eg 29 §34.Lof.the Act. If 'these provisions are 1001953 mm, they.m§§ii1}y faiiuze to regetration, faiiuxe to inform the engage establishment, failure to previrie for closing to issue appoinmeni: order. faiiure to proviée for Weekly hours, failure to pmvide for intexval for rest, 'V ' A» uspeeeding the Work beyond twelve hours, not maintaining the opening and closing hears, not providing weekly heiizzlays or selling the articles outside the establishment after the clesing -29- hours, not graniring annual ieave, not granting wages during leave period, empioying women and young person d11I'iI1gi Iz.i.ght hours and not issuing notice before order of ref' employee. Haxmonious reading of the provisi0nf.3nf-..:t.JheeA_T}5;et _ penalty in contravenﬁon of the 'of suggests that, Act is intended _safegnnnr;i the :i:_;ter'e:'3tV ef' empioyee and protect hill} ﬁnm e§{;3i6itaﬁon"?2_§* eﬁgﬁieyer by V' taking overtime work withnnt pi*6iIic§.i12g""1§{ages'g ' 1'1ot" provi:ding Safety', not granting ilolidajylrs'; if the rules framed are also _c<2nside1i:e1, for penalty for violation of Rz;1eg'_s,7as,':?__;,7,.I_g;gg_--eg.n19;2:2. 24 and 24~--A of the Rules. Rnle .8 :'t:>g the leave with wages register in 9 deals with not providing V leave Wages of ':';he persons employed. Rule 1'? deals noigumcienuy lighted. Ruk 13 deals with stairs for a building of more than one ﬂoorAi'n__te1fns.gefAthe said ruie. Rule 19 relates to proviading an " -ezéiteml e:a1rs*. ;' to open ﬁnm inside the establishment Rule 20 V' gsreeautzion against ﬁre-; not keeping certiﬁcate of each employees; not maintaining the reg'ste:rs, zeeortls and nude: Rule 24, netmaintaining the rem'ste1*s and records and dispiay of nonoes. Ali these rules relate to employment of an .. ..

the Act and would be unconstitutional. May be, displaying the name board in Kamzada language is vexy laudable, but if such resﬁicﬁan is imposed without having any source of pov§;'er,r'sjuch act would be iiiega}. In case of exercise of poWe_1_';"t§'f legislation, it must: ﬂow from the delegation of the provisions of the Act Section power, which reads as under: « ' dd . V "40. Power to make S'mté"{I%evé}vnneeni may be nott'j1'oati<}zj:, make... to 91:51 the purposes of this Ace ._ VA V (2) In particular gaimz Lgrejudice :9 the generality <>f'!he fo;*égaing peﬁzzer, rules made under sub-section ';'"£.}_Te'nay_ pr._'ozride~.iri .resp_efc£ of the health and saJ%fveweW*e Of *"'?'~P3j°?!'==?8-

A :3) In'rrio:.£:i2:g1"iu_£és 'under this section the Siate Goverrmreni .pre~z;ide~"that {:2 centraveniion of any mie be pzgnxehabie with aﬁne which may extend to ten rupees.

V , {'4_).??1e'V33bwer to make ruies conferred by this . seetimf1,§'s'--..eubjed to the condition of the rules being V _ 'ima_de ajierhpzrevious publicatien. "

V dd . The ﬁenereld pdirver conferred on the State to make rules to earxy en! the pufposes of the Act Even assuming that the yower is to make rules in respect of matters incidental to the 'V of the Act, the ineidemai to the purpose of the Act must " Vhe in consonanee with the object of the Act. -33-

18. It is well settled law that, the rules framed under the provisions cf the statute form part of the statute. I1;aT'0t.her worcis, rules have statutory force, but before 1113 rule. the cifect of statutory provision, two conditions K V' v'iz., (i) it must conform to the pmvisioné' of. the -:s'e.a' f:ut§:._iﬁieief which it is ﬂamed and (ii) it must __c¥31ﬁe then and purview of the rule making I1"---¢;ith$::" _: two V' canditions is not the r;1ié's"5Wo*u1d:bc void. This propasition is reiteratc-;£:iV% 6 in the matter of GENERAL AND ANOTI-[ER M 123- DR. SUB}£}§1SI{"§?I§i&i'§}_T:)f€;4§V:Y}i'£)A"??I§{?D_ ;--'1NOT¥--IER.

19. 9"I*_1;u%; Apex Excision reported in (2004) 8 soc 74?' in the 11ia--t£ei'* -7.'DR.,;ia7QHAc;£wDRA PRASAD SINGH wus- ~ .'F?gf£AIéV'L1E'!}ISLA1'YVE cowvca, AND omms while .v.v§?it1;V'~:1§e.'g9;uboIdinate Ecgislaﬁon at para--I3 has observeé as 1i:1d'eI':

"'I3. '.,, , . . The mics being delegated legislation are A to certain mI factors. Urzderfying the x. ' 'agncept of delegated Iegéslaiion :3 the basic pnhciple * the legislature defegates because if cannot

--V ctireciiy exert its wr'II in every detail. AH it can in 3 practice do 1% to lay down the outline. This means ihai the intention of the Iegaisiature, as indicated in the outiine (that is the enabling Act), must be the prime guide to the meaning of delegated iegislazién and the extent of the power to make it. The true extent of the power gaverns the Iegal meaning of the delegated .34- legislation T113 deieaate is not intended to travel wider than the object cf the legislature. f('he detegatefs ﬁmction is to serve and promote that object, while zitt", aH'thnes rewnaﬁmbyg hm"; &>it fﬁza is the rub3<Qf 'g primary intention. Power delegated by an enc::;'1me1itL- 3 does not enable the ctuthoriiy by regulations tc: 1gaxtér24:i'--- '7' ' the scope or general operation of the enax:m1em_bu[I'»z's' stricify wzcillary. It mil! authoﬂﬁﬁb {he _pi"bt}ision""Qf'.V subsidiary means of carrying finio"'e;§}'e<:i .; is"* 1 enaded in the statute itself ur§i'IT ..-aové-2;: what " 5% incidental to the execution of its spe§x'j"§¢ provis_z'on~. "

such a power will not supgioﬂ atIemp_{§__ to :£3iden_ the} ﬂurnoses of the Act, to add diffe'reni'vméms' 'of carrzginq them our or to cieparffrom or va:v:1;'its ends. The qformaid prirzcipfe will with greater rigour where rules have b€eri -- 1r:.V_e3_cérc:7se of power oorjerred by a oonstiirziioruaf. F50 rules can be ﬁarned which hav3.._thé'--3jffaci;V of 4.:-'nlarging or restricting the_a9,nten_:'t arnpfﬁucie ':f.\f the relevant oon.stfiutions._i:I " -the rules shauid be inte1p_re'£.éd_ de_n£§:isie?a§ i£{ith--..thé: aforesaid principle. "

V " . ;§4gid,§§rEini'ng by me) Thus, thé"~d¢cisVi¢=n e_f Apex Court it is clear that the 'VéieZcgavf§§:"}1£;sV:13.c) po\$zEr'%----Widen the purpose of the Act or to add 11¢;-a" jneans. The Apex Court in another decision I'ep<§i:fcf:€i i11 A§R_'.'V3.3VUV00 SC 1059 in the matter of KUNJ Beramzl £4A;L Boviyarpaisri) OTHERS "~vS- STATE 05' HP. AND omm-'es has tﬂat. for caxzrym 9; out the purpose of the Act, the Stata in exercise of delegated power cannot bring Within ' A» '"iﬁ§§§t=:t of the mks What has been exciuded by the Act itself. 1, .. 2§ ..

20. Object of the: Act was considered by this Couxt in the matter of M/s.m1LLIP0s & Co. (supra) at para-23 a31»*;1:."'*3'.f£. is reiterated that, the Act pmvicies for rczgulating the work and emfsleyment in the shops K V' estabﬁshmtants and the rationale b€:hirv;tdmVtlié;« interest in the health of the workers.»A:4\sf]5;t;+.V_ segment 0f the community and is essentially and vifally i:1v1.?:?tf§este<}.v.""' ''~ :

21. In simiiar Court in the matter of BASAIYT' considered the power of dbsewed as under:

"I9."-_The_ T'iIfLé._.IegisIature's delegating its powere3_ in jIa_v¢3a;i' _of tir.e executive is a part of iegislaiiz;-ef¢anczio1L.. ms a constituent element of ihe Iegisfative pqwef 4:23" a whole under Ariicle 245 of the ._"C§1fIn,siitz;tior:. «Sum delegation of power, however, . V Vébszrzizbt V323 wide, unottmalised or unguided. The !egis_Itt.ft.tre"tahi?e delegating such power is required to

-yfay §i'1gv~a'*iter"fa or standard so as to enabfe the zieiegatéfe 19 act within the framework of the statute. pﬁmipie on whim': the power of the legislature is :2,» .I;€gexerc:'sed is required to be disclosed It is case mat esseniial legislative ﬁ1nc.fions cammt be " ' delegated."

22. In the light of the ebsaxvation made by the Apex Court mgani to the deisgatcd iegislaéon under Section 40 of the Act, it provﬁes c1car--cut criteria for making the rules. Said ,:(~..'i, i W26ﬁ p¥'0'J"iSi{)11 dues not Shaw that the State Geveznment in the capacity of suboxtiinatc iegisslaﬁon Couid make rule :ii'.§i'.[ the matter, which is not avail provided under tha outside €116 scoge of thﬁ same.

23. Clgnstzitutiori provides for uﬁe o'f ia;;i§;'31€$~.';g£:V._.:i"€:rV purpose' Article 343 of the C0jns'a'tii'£i<5:1.. c1§a3}§.".é_€;$fith' language: 0f the Union, Hindi sc1"é§t.'7j'st2iVVted as official mnguage, however, ﬁéxiad of' V13 géears from the commencement of the languagts; was continued as ij'i}ni(::11. Power is conferred "xE<:s "az} opt. or more lagngtxagas in use in the:"'Sté¢'_c: -:i>I'_l'V~'1,':V§;'lc3 asV_LVt;h§§"§aﬁgL1age for oﬂicial purpose. in €)3."d€I' to ma};<'::--.. as ofﬁcial lauguage of the State .. .1J1A;t1§::1j»'2"%xrt":i;x;fIc 345V,,"tE;e____Lcgis}gature of the State has to isgisiate 'E"§1t,: ilétw fe:v'_vfiz€:' purpose. C}f.ﬁ€;§ia{T:'Ianguag¢ is not cieﬁned unéer Article 366 of iii}? Cxgnsﬁiggﬁﬁn of India, hcrwever, the Wcmii "ofﬁciai" in égnse meaas, "gersen who holds an oﬁice: of or is ofﬁcia} by arm emplayed ix}. acme public ca§)acity." ' alga means, gsublic e:3ﬁ}ce1~ ia reiatimix to the duﬁﬁs of 111»:

ofﬁce. Cionstimtion itself has 119": envisaged or confezzrezi any -33- the Constitution is not subjected 10 any restrictions, Any sectian of the citizens @ a right to have a distinct language, scrrspt or cufture of its awn irrespective of the fact whether that secticrn is mirwrity or a major:'£g,: and is entitled to conservev said right, Rule 24-A f the Rules provides f}'§.g,i' .tVize%, "

name board shaii be in Kannada: and whenevaégr dihﬁ. --'~' "

languages are also used, the vemion in such czihef "

languages ska?! be beiow the Karmadar. vers2'cn;"...F?9m.--A this it is seen the said rule tioékrzot gin _rzny' wa3;..} .& prevent the petiiionerfrom dispirzying. #123 izan1e'boar*d__ :, A of his shop in his language :'.e.,".Mc;rcithi cifor2g.wit?;:_"~.. V' Kannada If that is so, if cpannehbé sczi(7;*"1€?';;:zi'_ the'; pezizioner has in any way"-Egeen "prevent"-3d"~--:'ffbm' conserving Maraihi language he is-:1,Iso'a1I£)u:eci to use Marathi I aicfngg wifh. K Thus, it is clear that the ru1¢_ Wahg ¢§1__ié§§¥:§.c513},§(i».:£)Vn'-V*the gonad that Maxatili 1ang1:ag::*'ib::;a;f-3 a terms of Articles 29 and of of iﬁdia. This Court has mat Considered'Ai;hVe"issucfis§.L:Vi:}'ivﬁéihér the rule: is ulira Hires as it is hey-:>1::.d_i"1;:e &§iiegatcé" iégiélﬁﬁve power. Further the said 'vgémvisiéﬁ i3"*310i'Z.S11béﬁfﬁféd by the pmsent Rule 24% impugned iii " by notrificaﬁon dated 31.12.2008. Even _ - oti1ei*s:2j§§€ a1§§<:{,': said juégment will not in any way affect the . ~'.__.44§}t3§:;ifi0ﬂer's"}ﬁight 1:9 qucsﬁon tha valiéity of netiﬁcation. In this is 'L1$€2fll1 ts Kfftil' the Qbservation of the ﬂgex Gear: in ijizatter of STATE 01:' 5119. AND ANOTHER -z:s~ SYNTFIlz?'I'IC3S %% ' _ ";AA.«'§9"p CHEMICALS LTD, AND £§N{)THER reported in 199114; 306 ' 9: 9 1 13 y-

dec£sz'on is binding not because 0}' its oonciusiens bzgt in regard to its ratio and pﬁnapies, laid dawn 1h6?'€fR'. ,_A--!fty declaration or cxmciusion mriyed witlwut appIic:iitioﬁ;.Vbf' mind or preceded without any reason cxmmrrt to be ¢:.Eec:Iara£z'orz of Iaw er authority of a gesiéral .:"2s:1?2;cr_e*'" : ' binding as 61 precedent Restrainf in H;ii$:é;ent:£irag or "

cwerruiing is for sake of stabi£z'ty.__¢:e'nd.' urizfz3?ftr1ii y._i2uI'._V rigidity beyond reasonable iimitsv is inirisiotzl 11:) 'th;_e' ffs".QiiiifL ' aflaw." '

31. Leanzad Advocate juégmeni in the matter of T TRAINING INSWTUTE' (supra) inferaéiﬁii*s1;b«:;11i§_§:§i;;§g--V.iiE3;;§t; giach rule has to be presumed as inzffa vir¢s_ oprzn for two constxuctions, has to be adoimad.

Hawcver, it Vlcarned Senior Counsel for the .p_a*:;#§gi?ailit3I of two C0}1S12I'l1<:ti{:1I1S. The pﬁnéipal rule itseif is ultra vires and delegamd _leg';.§ia:1v:iAo11."'ha:$'; be oonshiared taking into account t'r:e¢ f:z1Eai§%:Ié,.._subjé§f"Ai11attcr, scheme and pmvisions of the * " cannot be two opinion 031 this. Even.

CGI2§%;§g1v6I'i£],§.§ .§}é:i.a'$AVV.§I'€3II1E}}_£i, subject matter, object, preévisicns cxf the stafuﬁé and the scheme as obsexvcd above, there is no V' to cgnstrue tiw mic as shira vires. The éecisian ciied

-. b:.r* %th@ Iearned Advocate General in the case ef K,K{L7VfJABMU {suprt2£) 3.130 reiterates the same View 31.28., the provision is a near Henry VII: ciause and it has to be examined based on preambie, the scheme and other available matsrial to see as tc§»:"W[1.1etl1er there are any discemible gllideﬁnas. This that, in order is ﬁnd out the extent of purpose 0f the Act, preamble and thejirG:risi§)ns;v«é>f}ch:;Vgﬁci' vit1;Li;z.s1;b 7, be considersd. It is not necessary}?

othexwise, but. even if the prdﬁiﬁiéns main grammatical 'ﬁ€3""A-poésibiiity of constructing them as z"nt}*a ;:frésL,_v 'zmd R1116 26 of the Rules ixxssofar as of Rule 2441 of the Rules is 3:; __I_;;$0faf the matter of SHAMBHU NA??? 'issue which has been decideé eariier cﬁﬁnﬁt V .aga:£:1 on diffemnt grmmd is concergxieci, the skarliéf deﬁrisiezl is not sought to be rmpened nor AV iihzz. vefé;*_1iei"' t;ie§:is;i0:1 had d6:a}tWit}:1 the same notiﬁcatiori. Even Aa€.}i&1:=2?iS:::v,VV'''if " ~"ci€:cisi0:1 is rendared witheut reference to C£3I1$1Zi§§11f.i§}I1£'3ii.:}}ﬁ'OViSiGﬂS or the statutory" provisions, the said 3"-'««.'_£€:ecisie311":%s5__that binding. In my view, the earlier {iecisien does i1£§At'?;a_i§%; away the peﬁﬁe31:a.er's right to qu-zzsticrzi the 11ei:«t'1'iica::ic:1z,, K bad givsn fzwesh causa of actin.

33, Just because the ruies "firmed by the Stats Govanxmanf and are rrzquired ta he piaced brsfx;-«re the lggésiature, thﬁfﬁ is :13 rule that piacing hefc-re the iegislature would make the rule as infra vfrrsas,

34. in 'aha light of tbs above diSC{1SSi0j€l, «9nl3¥*':}§:5s-hxiftzjiision that can be arztived is that Rule 2-¢§--A 0f tft:1:::*'-'.4':}f'€21VE::'«[$2' 4_ penalty under Rule 26 for violationof Rule ziiréﬁ' T x and are beyond the deiegated iegisla::i;iv:2::':{3{§\i§?e1;[ 7I Hence, Writ Petition c1.r:éc:1'v:'Lé::';*s:..Abto bé a.l1oi'i§cﬁ_, I make the following order:

(2') Writ Pe£ition(;f§0ié?e;i::v

(ii) RuvIe. 2*,4_-A f»i~3'tf:z':'§_etg,VrV' Rafe 25 of the l:?.a';'£(:2iV'V(:r'{)??"£I3'?,tE?3'"CTl'£11 Estabfishrnents as improsing penalty for violaticn I:?u1e.v;24:i.ﬁ the Rules is conoemed, declared as ..u}irc:¥ 'V issued by respondent N034 and 5 dated A. f.:2£?09 at Annexuresﬂ a:n.d D are quashed.

Sd/-P Iudge KN}-«Q'-

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