Madras High Court
The Planters' Association Of Tamil Nadu vs The Secretary To Government on 5 June, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.06.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.30368 of 2007 and M.P.No.1 of 2007 1.The Planters' Association of Tamil Nadu, 42, A.T.T. Colony, Coimbatore-641 018. 2.Tea Estates India Limited, (having its registered office at) No.10, Damu Nagar, Puliakulam, Coimbatore-641 045. .. Petitioners Vs. 1.The Secretary to Government, Labour & Employment Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 2.The Commissioner of Labour, D.M.S. Complex, Teynampet, Chennai-600 006. 3.The Secretary to Government of India, Ministry of Labour, Shram Shakti Bhavan, New Delhi-110 001. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the order of the first respondent in G.O.Ms.No.183, dated 28.12.2006 and quash the same. For Petitioners : Mr.Vijay Narayan, SC for Mr.R.Parthiban For Respondents : Mr.V.Subbiah, Spl.G.P. for RR1 and 2 Mr.C.R.Dhasarathan, Central Government Standing counsel for R-3 - - - - ORDER
Whether the action of the State Government in notifying Section 18 of the Plantations Labour Act, 1951 (for short PL Act) and directing appointment of Welfare Officers in respect of plantations engaging 300 or more workers by virtue of the impugned notification, dated 28.12.2006 is liable to be set aside by this court ? Is the issue involved in this writ petition.
2.Section 18 of the PL Act reads as follows :
18. Welfare officers.(1) In every plantation wherein three hundred or more workers are ordinarily employed the employer shall employ such number of welfare officers as may be prescribed.
(2)The State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub-section (1). (Emphasis added)
3.The State Government by G.O.Ms.No.65, Labour and Employment Department, dated 25.04.2005 had issued the following notification in the Tamil Nadu Government Gazette which reads as follows :
NOTIFICATION The following draft of an amendment to the Tamil Nadu Plantations Labour Rules, 1955, which it is proposed to issue, in exercise of the powers conferred by sub-section (1) of section 43 read with section 18 of the Plantation Labour Act, 1951 (Central Act LXIX of 1951) is hereby published for information of all the persons likely to be affected thereby as required by sub-section (1) of section 43 of the said Act.
2. Notice is hereby given that the draft amendment will be taken into consideration on or after the expiry of six weeks from the date of publication of this Notification in the Tamil Nadu Government Gazette and that any objection or suggestion which may be received from any person with respect thereto before the expiry of the aforesaid period will be considered by the Government of Tamil Nadu. Objection or suggestion, if any, should be addressed to the Principal Secretary to Government, Labour and Employment Department, Fort St.George, Chennai-600009, through the Commissioner of Labour, Chennai-600 006.
4.Subsequently, after examining the objections from different quarters including from that of the petitioners, the State of Tamil Nadu by G.O.Ms.No.183, Labour and Employment Department, dated 28.12.2006 had issued the following final notification in the Government gazette. It reads as follows :
ABSTRACT Plantation Labour Act, 1951(Central Act 69 of 1951) and the Tamil Nadu Plantation Labour Rules 1955-Amendment to Tamil Nadu Plantation Labour Rules 1955-Preliminary Notification-Confirmed.
LABOUR AND EMPLOYMENT (I2) DEPARTMENT G.O.Ms.No.183 Dated: 28.12.2006 Read:-
1.G.O.Ms.No.65, Labour and Employment, dated 25.4.2005.
2.Government letter No.22834/I2/2005-1, dated 22.6.2005.
3.From the Commissioner of Labour, Letter No.P1/19450/2005, dated 23.6.2005, 8.11.2005 and 23.8.2006.
ORDER:
In the G.O.first read above, a preliminary Notification for appointment of Welfare Officers in Plantations prescribing qualifications and their duties, were issued and objections and suggestions were invited from the persons, Associations etc. likely to be affected by such proposals.
2.The Commissioner of Labour, in his letter third read above, has stated that certain objections and suggestions were received from the Madurai District National Plantation Workers Union and the Plantations Association of Tamil Nadu. No objections/suggestions were received from other Plantation Managements and Unions.
3.After examining the objections and suggestions with regard to preliminary Notification, the Government have decided to confirm the preliminary Notification.
4.The appended Notification will be published in the Tamil Nadu Government Gazette both in English and Tamil.
5.The Secretary to Government, Tamil Development, Culture and Religious Endowment (Translation) Department, Secretariat, Chennai-9 is requested to send the Tamil translation of the Notification to the Works Manager, Government Central Press, Chennai-79.
(BY ORDER OF THE GOVERNOR) RAMESH KUMAR KHANNA, SECRETARY TO GOVERNMENT (Emphasis added)
5.Pursuant to the notification, the rules relating to appointment of Welfare Officers were incorporated as Rules 85 to 90 under Chapter VIII of the Tamil Nadu Plantations Labour Rules, 1955. The first petitioner representing plantation owners covered by the notification along with one plantation management have filed the present writ petition challenging the Government Order in directing plantations to appoint Welfare Officers in case they employ 300 or more workers in terms of the rules so framed.
6.When the writ petition came up on 18.9.2007, this court while ordering notice to the respondents had granted an interim injunction for a period of 12 weeks. Subsequently, the writ petition was admitted on 17.11.2011. But, however the interim order was not extended further. On notice from this court, the third respondent Central Government has filed a counter affidavit, dated 28.9.2011. On behalf of the first respondent State of Tamil Nadu, a detailed counter affidavit, dated 08.12.2010 has been filed. Rejoinders dated 12.02.2012 in respect of both counter affidavits were also filed.
7.Heard the arguments of Mr.Vijay Narayan, learned Senior Counsel leading Mr.R.Parthiban, learned counsel appearing for petitioners, Mr.V.Subbiah, learned Special Government Pleader for first and second respondents and Mr.C.R.Dhasarathan, learned Central Government Standing Counsel for third respondent.
8.The contentions raised on behalf of the plantation owners were threefold. The first was that the Plantations Labour Act was enacted in the year 1951 and was brought into force with effect from 1.4.1954. For the last 52 years, this provision was not given effect to as the management and the workers were satisfied with the working of the welfare provisions provided under the enactment. Even though certain amendments were made to notify the provisions in the year 1981, but subsequently it was given up. Therefore, having not allowed the provisions to come into force for the last 52 years (wrongly mentioned as 55 years by the petitioners), the principle of desuetude will have to be observed as the provisions were never implemented. All welfare activities were undertaken through established methods even at times some of the unions have opposed to bring into force of the Act.
9.The second objection was that under Section 43(3) of the PL Act, all rules made under this Act, if made by any Government other than the Central Government, will be subject to the prior approval of the Central Government. Since prior approval of the Central Government is required, Section 23 of the General Clauses Act, 1897 was pressed into service. The procedure therein will have to be complied with and Section 23(4) was not followed in its letter and spirit. Thirdly, the delegation made under Section 18 is excessive.
10.Before proceeding to deal with the merits of the contentions, it is necessary to refer to the plight of the plantation labours over the years.
10.1.Tea gardens like other industrial establishments must depend on offering sufficient attractions in order to maintain their labour force. The emigrant must be convinced that Assam holds out the opportunities of a better life than is open to him in his home land. If he is not convinced, nothing else will secure a flow of immigrants; if he is convinced it will be difficult to keep him away.
[See :Royal Commission on Labour in India, 1929] 10.2.The agony of plantation workers (otherwise known as Tea Garden labours) was sought to be remedied only after India became a republic in the form of Plantation Labour Act, 1951. The Act for the first time attempted to provide certain minimum safeguards in respect of health and welfare of Plantation Labours. The Act provides for certain statutory service conditions including housing, hours of work, weekly holidays, leave including annual leave, maternity leave etc. Despite these safeguards, wages payable to workmen were largely left to collective bargaining, failing which notified minimum wages were paid to these workmen.
10.3.In view of the large scale complaints about the plight of the labours, the Central Government appointed the First National Labour Commission presided by Justice P.B.Gajendragadkar (former Chief Justice of the Supreme Court of India). The said Commission by its extensive hearings covered all industries (both public and private sectors) in India and submitted its report in the year 1969. With reference to the position of casual labour in respect of several industries including the plantations came to the notice of the Labour Commission as found in paragraph 29.26, which is as follows:
"...During the course of our inquiries many unions complained that employers arbitrarily terminated the services of casual workers to prevent them from completing the prescribed period of service and thus deprived them of the benefits. We have also come across cases particularly in smaller establishments where within a week of termination of service, the same person is engaged afresh for the same job, making the employer's intention obvious."
10.4.The Commission in its recommendation in paragraph 29.29 had recommended as follows:
"29.29: ...We consider the prevailing practice of discontinuing employment of a casual worker for short periods and again re-employing him to debar him from enjoying the benefits of a permanent worker as pernicious. We recommend that if employment is discontinued for a short period and the worker is re-employed, this short period should not be treated as a break in service. We also recommend that after a casual worker has completed a stipulated period of service, he should be allowed the same benefits which is a permanent worker enjoys."
10.5.The National Labour Commission had also noted the functions of the Welfare Officers in various establishments including plantations and in paragraph 10.40 it was observed as follows :
Welfare Officers :
10.40.The statutory provisions for the appointment of a welfare officer in factories, mines and plantations, were made to ensure that the managements appointed a person exclusively to look after the welfare needs of their workers and also to help them in discharging their statutory obligations in respect of welfare measures. In order to ensure that the welfare amenities, statutory or otherwise, are provided and organised properly, such officers should form part of the administration. The management should ensure that only such officers are appointed to look after welfare activities as are properly qualified to hold these posts and have aptitude for welfare work. The Welfare Officer should not be made to work as an agency to handle labour disputes on behalf of management. (Emphasis added)
11.May be at the relevant time, the Commission would have been made to believe that Welfare Officers were functioning in plantations as required under law. But the fact of the matter was that there were no Welfare Officers at least in South India including the State of Tamil Nadu. This fact was not brought to the notice of the National Labour Commission and it had presumed that such officers were functioning.
12.The circumstances under which the notification came to be made is wet out in the counter affidavit filed by the Central Government and in paragraph 8 of the counter, it was averred as follows :
8.I specifically deny the allegation of the petitioner that without prior approval of the Central Government, the State Government has issued G.O.Ms.No.183, Labour and Employment Department dated 28.12.2006. In fact before issuing the orders the Government of Tamilnadu have addressed the Government of India vide Government Letter No.29919/12/2003-9, Labour and Employment Department, dated 14.12.2004 for approval. And after getting approval of the Government of India, Ministry of Labour and Employment, New Delhi in letter No.S-660 12/1/05-1R(pt) dated 28.02.2005, the Tamilnadu Government have issued preliminary notification in G.O.Ms.No.65 Labour and Employment (12) Department dated 25.04.2005 framing rules for appointment of Labour Welfare Officers. Against the above orders the Government issued in G.O.Ms.No.183 Labour and Employment Department dated 28.12.2006.
13.The State Government in their counter affidavit has set out the reasons for notifying the provisions and in paragraph 10 of the counter, it was averred as follows :
10....it is submitted that Section 18 of the Plantations Labour Act 1951 provides for the appointment of welfare officers in plantations wherein 300 or more workers are employed. Section 18(2) of the Act gives powers to the State Government to prescribe the duties, qualifications and conditions of service of the welfare officers. Since, no rules were framed by the State Government for the appointment of Welfare Officers in Plantations wherein 300 or more workers are employed and to frame necessary draft rules for appointment of welfare officers in plantations wherein 300 or more workers are employed by prescribing the duties, qualifications and conditions of service of the welfare officers as per Section 18 of the Plantations Labour Act 1951 based on that the State Government has addressed to the Government of India for approval of the draft rules and issued preliminary notification in G.O.Ms.No.65 Labour and Employment (12) Department, dated 25.04.2005 framing rules for appointment of Labour welfare officers after getting the approval of Government of India, Ministry of Labour and Employment, New Delhi in Letter No.S-66012/1/05-IR (PL) dated 28.02.2005. The Ministry of Labour and Employment have no objection for insertion of chapter VIII on welfare officers in the Tamil Nadu Plantation Labour Rules, 1955 as proposed by the Government of Tamil Nadu and the above order issued with the approval of Minister of Labour and Employment. Later, considering the objections and suggestions received from the union as well as managements, it has confirmed the preliminary notification in G.O.Ms.No.183 Labour and Employment Department dated 28.12.2006. The petitioner's plea that there are no specific or demonstrable reasons for providing for welfare officers considered unnecessary for 55 years was suddenly considered to be necessary is not correct. It is submitted that during the year 2003 to 2007 out of total 24,734 number of inspections made by the Inspector of Plantations, 1533 contraventions were found and 916 number of prosecutions were launched in the Courts. Apart from this, regular complaints are also received from individual workers and Unions. The protection of the workers interest, the welfare and prevention of industrial conflicts are the prima facie reasons for the appointment of Welfare Officers.
14.Mr.Vijay Narayan, learned Senior Counsel in support of his contentions referred to the judgment of the Supreme Court in Municipal Corpn. for City of Pune v. Bharat Forge Co. Ltd., reported in (1995) 3 SCC 434 = AIR 1996 SC 2856 and in paragraphs 31 to 34 and 36 it was observed as follows :
31....... Lord Mackay's view in Brown v. Magistrate of Edinburgh9 has also been noted, which is as below:
I hold it clear in law that desuetude requires for its operation a very considerable period, not merely of neglect, but of contrary usage of such a character as practically to infer such completely established habit of the community as to set up a counter law or establish a quasi-repeal. A perusal of this judgment shows that Lord Mackay ventured to prefer the Scottish system to that of England regarding which Lord Eldon, as a member of House of Lords, had stated thus in Johnstone v. Scott10 at p. 285:
The English lawyer feels himself much at a loss here; he cannot conceive at what period of time a statute can be held as commencing to grow in desuetude, nor when it can be held to be totally worn out. All he can do is to submit to what great authorities have declared the Law of Scotland to be. Lord Mackay thereafter enunciated the afore-quoted test of desuetude for it to permit quasi-repeal.
32.It would be useful to note what has been stated in this regard in the chapter headed Repeal and Desuetude of Statutes by Aubrey L. Diamond, printed in Current Legal Problems (1975), Vol. 28 at pp. 107 to 124. Diamond has quoted on this subject what Lord Denning, M.R. observed in Buckoke v. Greater London Council11 at p. 668, which reads:
It is a fundamental principle of our Constitution, enshrined in the Bill of Rights, that no one, not even the Crown itself, has the power of dispensing with laws or the execution of laws. But this is subject to some qualification. When a law has become a dead letter, the police need not prosecute, nor need the Magistrates punish. They can give an absolute discharge.
33. Diamond has thereafter referred to the Scottish approach to desuetude at pp. 122 and 123 and has noted some decisions wherein an Act of Scottish Parliament was not enforced because of desuetude. It would be of interest to note that when an argument was advanced that the particular Act (which was of 1606) had been left unrepealed by the Statute Law (Repeals) Act, 1906, and must, therefore, be regarded as still in force, the reply given by one of the Law Lords was that it was for the Court and not for the Statute Law Revision (sic Repeal) Act to determine whether Act of 1606 was or was not in desuetude.
34.Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the dead letter. We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our country also. Our soil is ready to accept this principle; indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become dead letter. A new path is, therefore, required to be laid and trodden.
36.Coming to 1918 Notifications, we find materials on record to show that it has not been implemented till date; and in fact what has been done was contrary, and that too for long period. So, we hold that Notifications Nos. 4162 and 4163 dated 17-6-1918 had stood repealed quasily by the time new Octroi Rules came to be framed in 1963, which were applied to realise octroi from the respondents......
15.He further referred to the judgment of the Supreme Court in Cantonment Board v. M.P. SRTC reported in (1997) 9 SCC 450 = AIR 1997 SC 2013. In paragraph 16, the Supreme Court had observed as follows :
16.Coming to the conclusion of the applicability of the doctrine of desuetude Mr Lekhi, the learned Senior Counsel strongly relied upon the decision of this Court in Municipal Corpn. for City of Pune v. Bharat Forge Co. Ltd.6 and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law inasmuch as we are not concerned with the question of grant to local authorities and Cantonment Boards as provided under Section 7 of the Taxation Act but we are concerned with the leviability of tax on motor vehicles under Section 3(2) of the Taxation Act. It is nobody's case that no tax was being levied on motor vehicles which is used or kept for use under Section 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act, 1947. That apart to apply the principle of desuetude it is necessary to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of motor vehicles into the Cantonment limit has been in operation for a fairly long period. Neither of these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand.
16.A further reference was also made to the judgment of the Supreme Court in State of U.P. v. Hindustan Aluminium Corporation reported in (1979) 3 SCC 229 = AIR 1979 SC 1459 and in paragraphs 65 and 66, it was observed as follows :
65......But whether a piece of legislation has spent itself or exhausted in operation by the accomplishment of the purpose for which it was passed, or whether the state of things contemplated by the enactment has ceased to exist, are essentially questions of fact for the Legislature to examine, and no vested right exists in a citizen to ask for a declaration that the law has been impliedly repealed on any such ground.
66.It has to be appreciated that the power to legislate is both positive in the sense of making a law, and negative in the sense of repealing a law or making it inoperative. In either case, it is a power of the Legislature, and should lie where it belongs. Any other view will be hazardous and may well be said to be an encroachment on the legislative field. In an extreme and a clear case, no doubt, an antiquated law may be said to have become obsolete the more so if it is a penal law and has become incapable of user by a drastic change in the circumstances. But the Judge of the change should be the Legislature, and courts are not expected to undertake that duty unless that becomes unavoidable and the circumstances are so apparent as to lead to one and only one conclusion. This is equally so in regard to the delegated or subordinate legislation. (Emphasis added) This judgment far from supporting the stand of the petitioners it is really against them.
17.However, this court is not inclined to agree with the application of principle of desuetude as being applied to this court since the provision has not been given effect to for the last 52 years. The Plantations Labour Act is a Central enactment. The power of implementing the Act is left to the State Government. It is for the State Government being a delegate which has to consider the objective situation for implementing the particular provision. Merely because there is delay either due to reasons for administration or there were different forces at work which forestalled the implementation of a particular provision, the legislation will not become a dead letter in the statute book. By applying the principle of desuetude, this court cannot kill a welfare measure enacted by the act of Parliament. Unless the Parliament repeals the provisions, the question of applying the principle of desuetude to the impugned provisions will not arise.
18.As per Section 18(2) of the PL Act, it is for the State Government to prescribe duties, qualifications and conditions of service of welfare officers. Depending upon the conscious level of working class and the alertness of the State Government, the said provision has been given effect to in many States such as Kerala, West Bengal and several other northern States. Therefore, one cannot be heard to contend that Section 18 only applies to North India as well as South West India, but not to Tamil Nadu since it had not been implemented by the delegate, i.e., the State Government for the last 52 years. The decisions cited by the learned Senior counsel for the petitioners have no application to the case on hand. On the other hand, there are several provisions even in the PL Act which are left to the State Government to frame rules. It is not as if only Section 43 is the relevant provision for making rules. On the other hand, Sections 3-D, 5, 16, 16-G, 18 and 32 also regulates the State Government to make rules in respect of giving effect to those provisions, Section 43 which is the rule making power, is a general provision and the specific provision in this regard is only Section 18.
19.If a provision made under an Act was not brought into force and whether an aggrieved person can move the court came to be considered by the Supreme Court in A.K. Roy v. Union of India reported in (1982) 1 SCC 271. The Supreme Court held that no court can give direction either to enforce or not to enforce provisions of an Act and in such circumstances, no writ of mandamus will lie against a delegate to bring into force a particular law. The said judgment came to be quoted with approval subsequently in Aeltemesh Rein v. Union of India reported in (1988) 4 SCC 54 and in paragraphs 5 and 6 it was observed as follows :
5.It is no doubt true that the Central Government has been given the power by Parliament to appoint the date on which any of the provisions of the Act shall come into force by sub-section (3) of Section 1 of the Act and the said provision does not lay down any objective standards for the determination of the date on which any of the specific provisions of the Act should be brought into force. The question for consideration is whether this Court can issue a writ in the nature of mandamus to the Central Government to bring Section 30 of the Act into force. Dealing with a similar question a Constitution Bench of this Court in A.K. Roy v. Union of India2 has taken the view that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued. Chandrachud, C.J., who spoke for the majority of the Constitution Bench has observed at pp. 314 to 316 of the Report thus: [SCC pp. 310-12: SCC (Cri) pp. 188-89, paras 51 and 52] But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the Forty-fourth Amendment into force, it is not for the court to compel the Government to do that which, according to the mandate of Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to Parliament and if Parliament considers that the executive has betrayed its trust by not bringing any provision of the amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of Parliament and yet we should show our disapproval of it by issuing a mandamus.... But, Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on the question whether Section 3 of the Amendment Act should be brought into force.... It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of Section 3 of the Forty-fourth Amendment into force....
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by Parliament.
6.The effect of the above observations of the Constitution Bench is that it is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government. As long as the majority view expressed in the above decision holds the field it is not open to this Court to issue a writ in the nature of mandamus directing the Central Government to bring Section 30 of the Act into force. ......
20.Similarly, Section 2(J) of the Industrial Disputes Act, 1947 which was introduced as early as in the year 1982 by the Parliament vide Amendment Act 46 of 1982 and which defines the term industry, is yet to be brought into force. When the matter was brought to the notice of the Court, the Supreme Court merely observed that it is for the Central Government to bring it into force and did not give any such direction. Therefore, the Supreme Court in Des Raj v. State of Punjab reported in (1988) 2 SCC 537 in paragraph 13 had observed as follows :
13.....We have not been able to gather as to why even six years after the amendment has been brought to the definition of Industry in Section 2(j) of the Act the same has not been brought into force. This Court on more than one occasion has indicated that the position should be clarified by an appropriate amendment and when keeping in view the opinion of this Court, the law was sought to be amended, it is appropriate that the same should be brought into force as such or with such further alterations as may be considered necessary, and the legislative view of the matter is made known and the confusion in the field is cleared up.
21.Even if workers insisted upon bringing into force Section 18, the same could not have been done by the courts. Therefore, merely because there was delay in notifying the provisions by the State Government, will not enure to the benefit of the planters of the Tamil Nadu. On the other hand, it is their own admission that even unions such as HMS, UTUC and INTUC never agreed for deletion of Section 18 of the PL Act. A progressive labour enactment even if enacted by the Parliament, the implementation of the same depends upon the level of consciousness of workers of a particular State, the collective pressure that can be exercised by the working class including their trade unions. Merely because the provision had not been notified for the last 52 years and an abortive attempt made during 1981 was given up, cannot invalidate the impugned provision. It will be ridiculous to note that the provisions apply only to majority of estates in north India, but it will not apply to Tamil Nadu. The said argument is misconceived and hence rejected.
22.The second argument made by the learned Senior Counsel for the petitioner is that before approval was granted by the Central Government, the principle enunciated in Section 23 of the General Clauses Act, 1897 was not complied with, inasmuch as their objection was not considered by the Central Government before the grant of approval. Hence Section 23 of the General Clauses Act, 1897 was pressed into service which reads as follows :
23.Provisions applicable to making of rules or bye-laws after previous publication.Where, by any 1[Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely: (1) the authority having power to make the rules or bye-laws shall before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the 2[Government concerned] prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;
(5) the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made. (Emphasis added)
23.In support of the said proposition, the learned Senior counsel placed reliance upon a judgment of the Supreme Court in Ghaziabad Development Authority v. Delhi Auto & General Finance (P) Ltd., reported in (1994) 4 SCC 42 = AIR 1994 SC 2263 and referred to paragraph 6 of the said judgment which reads as follows :
6.....Section 57 of the U.P. Act provides for the making of bye-laws and says that the authority may, with previous approval of the State Government, make bye-laws .... It is obvious that the provision empowers the authority to make bye-laws only with the previous approval of the State Government. This being so, there can be no question of any deemed previous approval of the bye-laws. Merely because the authority chooses to follow certain procedure in the absence of any bye-laws which happens to correspond with the draft bye-laws awaiting approval of the State Government, the draft bye-laws do not become those framed under Section 57 of the Act with the express approval. ....... (Emphasis added)
24.He further referred to a judgment of the Supreme Court in Ashok Kumar Sahu v. Union of India, reported in (2006) 6 SCC 704 = AIR 2006 SC 2879 and in paragraphs 18,19 and 21, the Supreme Court had observed as follows :
18.The expression approval presupposes an existing order. Acceptance means communicated acceptance. A distinction exists between the expressions approval and acceptance. Whereas in the latter, an application of mind on the part of the competent authority is sine qua non, approval of an order only envisages statutory entitlement.......
19.We are, however, not oblivious of the fact that under certain circumstances, the expression, approval would mean to accept as good or sufficient for the purpose of intent. Ratification is noun of the verb ratify. It means the act of ratifying, confirmation, and sanction. The expression ratify means to approve and accept formally. It means to conform, by expressing consent, approval or formal sanction. Approve means to have or express a favourable opinion of/to accept as satisfactory. In the instant case, there was no question of any ratification involved as wrongly assumed by the High Court. (See Maharashtra State Mining Corpn. v. Sunil5.)
21.......if the Central Government intended to consider the matter from the latter angle, it would have communicated the same to the appellant directly. It did not do so. It approved the action of the Joint Cadre Authority. It directed the State of Assam to issue orders/notifications accordingly. As the offer of the appellant was to be accepted by the Central Government and communicated to him, the issuance of notification dated 8-9-1997 by the Governor of Assam accepting the said offer is bad in law.
25.Reference was also made to a judgment of the Supreme Court in U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd., reported in 1995 Supp (3) SCC 456 = AIR 1996 SC 114 wherein distinction between prior and previous was made and in paragraph 6, it was observed as follows:
6..........We are conscious that the word prior or previous may be implied if the contextual situation or the object and design of the legislation demands it.......
26.With reference to the second contention, it must be noted that in the present case, Section 43(3) only talks about prior approval by the Central Government. As noted in the counter affidavit, the Central Government had granted approval as early as 28.02.2005. The Government Order authorizing publication of draft notification, i.e., G.O.Ms.No.65, Labour and Employment Department, dated 25.04.2005, in the reference column itself indicates the letter sent by the Central Government, Ministry of Labour and Employment referring the approval granted by the Central Government. Therefore, it is not clear as to why the petitioner now contends that there was no prior approval by the Central Government. On the other hand, by invoking Section 23 of the General Clauses Act, the petitioners only contended that their objections should be considered and they have also forwarded their objections to the Central Government. If the Central Government had approved the draft notification, it does not require any further procedure to be followed by the State Government. In fact, the State Government having got the approval of the Central Government and published the draft notification and after considering the objections raised, had published the final notification which is impugned in the writ petition. In this context, this court do not find any procedural flaw in such method being followed.
27.In K.T. Plantation (P) Ltd. v. State of Karnataka reported in (2011) 9 SCC 1, the Supreme Court in construing the procedures under Section 23, in paragraphs 69 to 71 held as follows :
69.The State Government issued the Notification dated 8-3-1994 in exercise of the powers conferred by Section 110 of the Land Reforms Act which was published in the Official Gazette on 11-3-1994. Section 2(22) of the Act defines notification to mean a notification published in the Official Gazette. Section 23 of the General Clauses Act, 1897 also states that the publication in the Official Gazette of a rule or bye-law purported to have been made in exercise of power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.
70.This Court in B.K. Srinivasan v. State of Karnataka36 held as follows: (SCC p.672, para 15) 15. unlike parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation.
71.So far as this case is concerned, the State Government has already followed the legal requirement of publication of the Notification dated 8-3-1994 which came into effect on 11-3-1994.
28.Therefore, the fact that the Central Government did not issue any separate order rejecting their objections does not invalidate the notification. On the contrary, in the counter affidavit filed by the third respondent, the Central Government had clearly justified the implementation of the provisions and in paragraph 12, it was averred as follows :
12....it is submitted that the provision of Welfare Officer under Section 18 of the Plantations Labour Act, 1951 have not been repealed neither amended. Hence there is no infirmity in the enforcement of the provisions arising out of the said Act. Moreover, while notifying the provisions of welfare Officers in the State of Tamilnadu, Government of Tamilnadu has taken permission under Section 43(3) of the Plantations Labour Act, 1951 from the Government of India and vide this Ministry's Letter No.S-66012/1/2005-IR(PL) dated 28.02.2005, permission has been granted for inclusion of the said provision. Hence no infirmity arise out of the said notification. Hence the second contention of the petitioners does not merit acceptance.
29.The third and last contention raised was that there was excessive delegation. In terms of Section 18, the prescription of number of welfare officers is also delegated to the State Government, whereas the plantations which are required to employ welfare officers has also been restricted that plantations which are having 300 or more workers shall employ welfare officers. Therefore, there was necessity to appoint welfare officers in the estate having 300 or more workers. The Act itself defines as to what is plantation and number of 300 workers is the requirement under law for appointment of Welfare Officers. The delegate is being a State Government is only bound to prescribe the nature of duties, qualifications and conditions of service of such officers. The words number of welfare officers as may be prescribed found under Section 18(1) include number of welfare officers require to be employed is also prescribed by the State Government under the rule making power. It does not indicate their numbers to be decided by the Central Government. The Act nowhere contemplate any role for the Central Government to prescribe any rules and the entire rule making power is only given to the State Government being the authority to enforce the Act.
30.The distinction made between male and female workers to be kept in-charge of different welfare officers is the distinction which cannot be said to be arbitrary or unwarranted under the relevant provisions for delegation. In fact, when it says number of officers, it could also mean not only number of officers, but also the category of officers who are bound to look after the welfare works. In a plantation, predominant number of workers are female labours. Therefore, certainly special requirements will have to be monitored by the welfare officers to be appointed by the management. There are also special features relating to 'creche' to be maintained by the plantation and feeding of infant child, grant of maternity leave and prohibition of employment of workers when a female worker is pregnant and non discriminatory allotment of quarters between female and male workers, are some issues which can be looked into only by a female welfare officer. Hence this court do not find any case to find excessive delegation especially when the Parliament itself has authorized the appointment of welfare officers and also number of workers required for plantation to employ welfare officers and also number of welfare officers to be appointed is being left to the State Government by the rule making power.
31.In this context, the learned Senior Counsel referred to a judgment of the Supreme Court in Sant Saran Lal v. Parsuram Sahu, reported in (1966) 1 SCR 335 = AIR 1966 SC 1852 and in paragraph 18, it was observed as follows :
18.We have referred to the fact that the Act does not anywhere provide for the fixing of the upper limit for the loans remaining outstanding at any particular time. The rule-making power of the Government does not extend to the fixing of such a limit. Section 27 empowers the State Government to prescribe inter alia the form of the registration certificate and the particulars to be contained in an application made for the purpose of being registered as a money-lender. It is significant to note that the rule-making power given to the State Government is not expressed in the usual form i.e. is not to the effect that the State Government may make rules for the purposes of the Act. The rule-making power is limited to what is stated in clauses (a) to (e) of Section 27 and these clauses do not empower the State Government to prescribe the limit upto which the loans advanced by a money lender are to remain outstanding at any particular moment of time.
32.He further referred to a judgment of the Supreme Court in V.Sudeer v. Bar Council of India reported in (1999) 3 SCC 176 = AIR 1999 SC 1167 and in paragraphs 20 and 26, it was observed as follows L 20.We may now refer to Section 49 of the Act, which deals with the general power of the Bar Council of India to make rules. ............... A mere look at the aforesaid provision makes it clear that the rule-making power entrusted to the Bar Council of India by the legislature is an ancillary power for fructifying and effectively discharging its statutory functions laid down by the Act. Consequently, rules to be framed under Section 49(1) must have a statutory peg on which to hang. If there is no such statutory peg, the rule which is sought to be enacted dehors such a peg will have no foothold and will become stillborn. The statutory functions entrusted by the legislature to the Bar Council of India under the Act so far as relevant for our present purpose and which could be relied upon by Shri Rao, learned Senior Counsel for the respondent-Bar Council of India, are Section 7(1)(h) and Section 24(3)(d). We have seen earlier that neither of these statutory provisions entitles the Bar Council of India to provide for the disqualification or a disability or an additional condition for enrolment of a person who is otherwise eligible to be enrolled as an advocate under Section 24(1)..................... Any rule framed by the rule-making authority going beyond its statutory functions must necessarily be held to be ultra vires and inoperative at law.
26.....In other words, rule-making power under Section 49(1)(ah) deals with a situation which is post-enrolment of an advocate and does not deal with pre-enrolment situation for a candidate seeking enrolment......
33.He further referred to a judgment of the Supreme Court in Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla reported in (1992) 3 SCC 285 = AIR 1992 SC 2038 and referred to paragraph 7 of the said judgment which reads as follows:
7.....In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power ......
34.The learned Senior Counsel also referred to a judgment of the Supreme Court in Lilasons Breweries (P) Ltd v. State of M.P reported in (1992) 3 SCC 293 = AIR 1992 SC 1393 and in paragraph 8, the Supreme Court had observed as follows :
8..........
...... The basis of the statutory power conferred by the statute cannot be transgressed by the rule-making authority. A rule-making authority has no plenary power. It has to act within the limits of the power granted to it.
35.The learned counsel also referred to a judgment of the Patna High Court in Vishnu Sugar Mills Ltd. Vs. State of Bihar and others reported in 1999 (3) LLN 715 (Patna) and in paragraph 15, it was observed as follows :
15.From a conspectus of the aforesaid decisions, it becomes clear that a delegatee has no jurisdiction to frame a rule from a retrospective date if such a power is not delegated to it by the statute either in express terms or by necessary implication.
36.The Supreme Court while construing a labour legislation has held that while interpreting the provisions, the intention of legislation should be gone into vide its decision in S.M. Datta v. State of Gujarat reported in (2001) 7 SCC 659 and in paragraph 16, it was held as follows :
16.The backdrop of legislation and the subsequent incorporation of the Factories Act in the statute-book, as noticed hereinbefore in this judgment, has been adverted to by reason of a true reading of the provisions of the Act of 1948, the underlying intent of the legislature to confer benefits on the labour force of a factory cannot be doubted in any way whatsoever. Appointment of Inspectors by the State Government in terms of the provisions of State Rules (in the instant case the Gujarat Factories Rules, 1963) has been effected only for the purposes of giving effect to the beneficial piece of legislation and as such both the Rules and forms introduced thereunder by the State Government and the provisions of the statute shall have to be read in consonance with the intent of the legislature and not dehors the same.
37.Further it has been held in the said judgment that the mandate of the statute ought to be interpreted in a manner as to give efficacy to the legislative intent (para 19) and that the beneficial legislations have been engrafted in the statute-book for the benefit of the socially downtrodden (para 20).
38.The Supreme Court vide judgment in Tamil Nadu Electricity Board v. Status Spinning Mills Limited reported in (2008) 7 SCC 353 held that in the matter of interpretation of statute, the court will have last say and in paragraph 30, it was held as follows :
30....In the matter of interpretation of statute, the court has the last say.....
39.The Supreme Court in Balram Kumawat v. Union of India reported in (2003) 7 SCC 628 in paragraphs 20 to 23 had observed as follows :
20.Contextual reading is a well-known proposition of interpretation of statute. The clauses of a statute should be construed with reference to the context vis-`-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of ex visceribus actus should be resorted to in a situation of this nature.
21. In State of W.B. v. Union of India3 (AIR at p. 1265, para 68), the learned Chief Justice stated the law thus:
The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs.
22. The said principle has been reiterated in R.S. Raghunath v. State of Karnataka4 (AIR at p. 89).
23.Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject-matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so.
40.The Supreme Court in Manik Lal Majumdar v. Gouranga Chandra Dey reported in (2004) 12 SCC 448 in paragraph 10 had observed as follows :
10.... It is a well-settled principle of interpretation that every part of the provision has to be given meaning and effect in the context of a statute.
41.The Supreme Court in Sankar Ram & Co. v. Kasi Naicker reported in (2003) 11 SCC 699 in paragraph 7 had held as follows :
7.It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statutes, the courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve, unless there are compelling reasons to say so looking to the scheme of the statute and having regard to the object and purpose sought to be achieved by it. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma1 while interpreting and considering the effect of the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 in para 13 observed: (SCC pp. 252-53) 13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is a well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. Once the requirements of Section 55 of the Act are satisfied, the appellant is entitled to the protection of the said section as a bona fide transferee. Taking a contrary view takes away the very protective umbrella specifically made available to a bona fide transferee covered by Section 55. Protection provided for bona fide transfer in Section 55 is in a way an exception to Section 28(7).
42.In view of the above, there is no case made out to interfere with the impugned provisions. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.
vvk To
1.The Secretary to Government, Labour & Employment Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009.
2.The Commissioner of Labour, D.M.S. Complex, Teynampet, Chennai-600 006.
3.The Secretary to Government of India, Ministry of Labour, Shram Shakti Bhavan, New Delhi 110 001