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Judgment
B.P. Dharmadhikari, J.—Heard Shri Manohar, learned counsel for petitioner No . 1, Shri Mohokar, learned counsel for petitioner No. 2, Shri Sonare, AGP for respondent No. 1 and Shri Kukday, learned counsel for respondent No. 2 - Intervenor.
In this petition, the petitioners have challenged the Maharashtra Workmen''s Minimum House Rent Allowance Act, 1983, and certain sections thereof on the ground that the field is already occupied by provisions of Beedi and Cigar Workers (Conditions of Employment) Act, 1966, (Act No. 32 of 1966) and further the Beedi Workers Welfare Cess Act, 1976, (Act No. 56 of 1976). The above referred Maharashtra Workmen''s Minimum House Rent Allowance Act, 1983, will hereinafter be referred to as Maharashtra Act while the Act No. 32 of 1966, will be referred to as Act of 1966 and the Act No. 56 of 1976 will be referred to as Act of 1976, in short.
The petition is filed by 10 petitioners, who are stated to be companies or firms engaged in manufacturing of beedis. In para 1 of the petition, it is mentioned that they are the shareholders/partners of the companies and are citizens of India. The petitioners state that they are carrying on their business in various States including the State of Maharashtra, Madhya Pradesh, Orissa, Bihar, Andhra Pradesh, Tamilnadu and Karnataka. The petitioners state that the beedis are rolled by labourers appointed by the Contractors and these labourers are called as "Home Workers". These Home Workers do not roll the beedis at the establishment of the petitioners unit but the Contractors appointed by the petitioners collect the raw material like beedi leaves, tobacco, yarn etc. from the petitioners and distribute the same to the Home Workers. It is contended that it is up to the contractors to get particular quantum of beedis manufactured in proportion to raw material supplied to them. The Home Workers take these raw material to their respective homes, roll beedis and return the rolled beedis to the contractors and also collect their wages from him. It is mentioned by the petitioners that they are paying wages and are making available various benefits like leave wages, bonus, provident fund etc. It is mentioned that the normal wages which are paid also include House rent allowance, though it is not specifically mentioned separately.
The petitioners state that on 30-11-1966, the Parliament enacted the Beedi and Cigar Workers (Conditions of Employment), Act, 1966, (Act No. 32 of 1966). According to them, this Act No. 32 of 1966 provides for regulation of the contract system of work and also regulates the hours of work, wages, overtime wages etc. They contended that this Act was enacted by the Parliament by invoking Entry Nos. 22, 23 and 24 from the Concurrent List. In the year 1976, with a view to further ameliorate the living conditions of the workers, the Parliament enacted the Beedi Workers Welfare Cess Act, 1976, (Act No. 56 of 1976). This Act was further amended by Act No. 47 of 1981. The petitioners state that under provisions of these Acts, the Central Government collects cess from employers in the shape of excise duty on manufactured beedis and further the said duty collected is credited to the Consolidated Fund of India. The petitioners further mention that the utilisation of said fund is regulated by further Act viz., the Beedi Workers Welfare Fund Act, 1976, (Act No. 62 of 1976) and this fund can be utilised for various purposes including the improvement of housing of the beedi workers. The petitioners state that they are paying this cess as contemplated under the Beedi Workers Welfare Cess Act, 1976, and the said fund is utilised for providing housing to the workers. The petitioners further contended that they are paying wages to the home workers after taking into consideration an allowance for the house rent though it is not separately mentioned in the wages. The petitioners further contended that there were many settlements between the petitioners and home workers for enhancing the wages. During these settlements, house rent allowance was specifically taken into consideration though nowhere it is mentioned specifically and separately. The petitioners mentioned that all these enactments are by Parliament, invoking Entry Nos. 22, 23 and 24 of the Concurrent List.
It is in this background, the petitioners point out that in 1988, the State Government passed Act No. XXIII of 1988 called as the Maharashtra Workmen''s Minimum House-rent Allowance Act, 1988. By this Act, the State Legislature provided for payment of minimum House-rent to workmen employed in industries in Maharashtra. They contend that this Act has been brought into force by the State of Maharashtra on 1-1-1991 vide Notification No. HRA- 1084/9498 (i) LAB-2 dated 26-12-1990. The petitioners state that this Act has also been passed by the State of Maharashtra by invoking Entry Nos. 22, 23 and 24 of the Concurrent List.
Though in the petition, there are several grounds of challenge, the petitioners have argued only two of them during final hearing. Because of this, all other challenges are not being mentioned here. The first challenge as mentioned above is that the field was already occupied and the provisions of Maharashtra Act are repugnant to the Central enactments mentioned above. The second ground which was argued is that the provisions of Section 1(5) of the Maharashtra Act confer arbitrary and uncanalised powers upon the State Government to extend the provisions of Maharashtra Act to any industry. The petitioners contend that this delegation is unguided and arbitrary. At this juncture, reference to prayer clauses in the petition will be necessary. The said prayer clauses are reproduced below :
"(A) Issue an appropriate writ of mandamus, certiorari or any other appropriate writ, order or direction and thereby declare that the Notification issued by the State Government on 26-12-1990 does not apply to the Beedi and Cigar industry;
(B) Declare that the Maharashtra workmen''s Minimum House-rent. Allowances Act, 1983 and in particular the provisions contained in Section 1(5), Section 4 and Section 13 of the Act are ultra vires of the provisions of Article 14 of the Constitution of India;
(C) By a writ of mandamus or any other appropriate writ, order or direction, restrain the respondent from giving effect to the Notification No. HRA-1084/9498(i) LAB-2 dated 26-12-1990 insofar as the petitioners units are concerned;
(D) By an ad interim writ, direction or order pending final disposal of the writ petition, direct the respondent not to give effect to Notification No. HRA-1084/9498(0 LAB-2 dated 26-12-1990 as far as the bidi industry of the petitioners is concerned;
(E) Costs of this petition be saddled on the respondent; and
(F) Grant any other suitable relief and issue such other directions as this Hon''ble Court may deem fit and proper in the facts and circumstances of the case."
On 30-4-1991, this petition was admitted for final hearing and notice was ordered to Advocate General. By the same order, interim order was refused. In August, 1992, one Maharashtra Rajya Beedi Mazdoor Sangh, moved an application for being joined as intervenor and that application was allowed by this Court on 5-11-1992. Initially, the State of Maharashtra was the sole respondent in this petition. Thereafter, the above referred Mazdoor Sangh was added as intervenor. The State Government has filed its return in 1996 and has pointed that there are no contractors with petitioners and further the petitioners have not obtained any licence for registration under the Contract Labour Regulation and Abolition Act, 1970. It is further stated that the contractors also have not obtained any licence as required by the said Act. The State Government has denied that wages which are being paid to workers by the petitioners include House rent allowance. The State Government has pointed out that while fixing the minimum rates of wages for beedi rollers under the provisions of Minimum Wages Act, the State Government has not taken into consideration House rent allowance. The State Government has further stated that Beedi Workers Welfare Fund Act is enacted by the Central Government with a different view and it does not cover the matters enumerated under the Maharashtra Act. The State Government has denied that the petitioners are paying wages to their workers after taking into consideration the allowance for house rent. Though the settlement between the petitioners and the Home Workers is not denied, the State Government has stated that the contention of the petitioners in relation thereto can be accepted only after verification. The State Government has pointed out that under Central Legislation, there is no provision for paying house rent allowance to the workers. The State Government has, therefore, prayed for dismissal of writ petition.
Shri Manohar, learned counsel while making the arguments for the petitioners pointed out that by exercising powers available to them under Entries 22, 23 and 24 of List III (Concurrent List), the Parliament has framed three laws and the State Government has enacted the above referred Maharashtra Act in 1983. It is thus seen that the presence of Legislative competency in State legislature to enact the law for payment of house rent allowance to workmen is thus admitted by the petitioners. The learned counsel has pointed out that on 30-11-1966, the Parliament has enacted Beedi Act No. 32 of 1966. He has further pointed out that on 7-4-1976, the Parliament enacted Beedi Workers Welfare Cess Act, 1976, i.e. Act No. 56 of 1976. He has invited the attention of the Court to Section 3 of the said Act which provides for Levy and collection of cess on manufactured beedis. The provisions of sub-section (1) of Section 3 are relevant and the same read as under :
"(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be levied and collected by way of cess for the purposes of the Beedi Workers Welfare Fund Act, 1976 (62 of 1976), a duty of excise on manufactured beedis at such rate which shall not be less than ten paise or more than fifty paise per thousand manufactured beedis, as the Central Government may, from time to time, fix by notification in the Official Gazette."
He has further invited the attention of this Court to Section 4 which provides that the proceeds of the duty of excise levied under sub-section (1) of Section 3 shall be credited to the Consolidated Fund of India. After this, he has pointed out that on 10-4-1976, the Parliament enacted the above mentioned Act No. 62 of 1976 and by Section 3 thereof, Beedi Workers Welfare Fund, has been established. The amount received by the Central Government from and out of proceeds of cess credited u/s 4 of the Act of 56 of 1976, after deducing the cost of collection as determined by the Central Government under this Act as also any income from investment of the amount so credited, constitute the Beedi Workers Welfare Fund. He has pointed out the provisions of Section 4 which prescribe as to how the said Welfare Fund is to be applied by the Central Government. He has placed emphasis upon Section 4(1)(a)(iv) to contend that the said fund has to be utilised by the Central Government to meet the expenditure incurred in connection with measures and facilities which, in the opinion of the Central Government, are necessary or expedient to promote the welfare of persons engaged in Beedi establishments. He has pointed out that the said funds can be utilised to defray the cost of measures for the benefit of such person towards the provision and improvement of housing. The relevant portion of this Section 4(i)(a)(iv) is reproduced below for ready reference :
"Section 4(1)(a)(iv) - the provision and improvement of housing and recreational facilities including standards of living, nutrition and amelioration of social conditions."
He contends thus that there is already a provision in the Act for payment of amount towards housing to the Beedi Workers.
Taking recourse to Article 254 of the Constitution of India, he contends that provisions of Maharashtra Act run contrary to Act No. 56 of 1976 and 62 of 1976. It is, therefore, necessary to look into the provisions of Article 254 of Constitution of India. The said Article provides that if any provision of a law made by the legislature of a State is inconsistent to any provision of a law made by the Parliament or to any provision of an existing law on any of the matters mentioned in Concurrent List made by the Parliament,- the law made by the Parliament whether before or after such State law, shall prevail over such State law and provisions of such State law to that extent are void. However, an exception has been carved out by clause (2) of said Article 254 which prescribes that if such State Law containing an inconsistent provision is reserved for consideration of President and the Hon''ble President has given his assent to it, such State Law shall prevail over the law made by the Parliament. In this context, the learned counsel further argued that test to determine the repugnancy is not only to find out whether the particular provision in Central law can co-exist with a provision in question contained in State Law. He contends that repugnancy can also arise between such two enactments even though provisions contained in both of them can be obeyed. He contends that if there is already a law which covers the entire field, the State Law which encroaches upon that field is repugnant and deserves to be declared void. For this proposition, he has relied upon the judgment of the Apex Court in the case of Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme Vs. State of Tamil Nadu and Others, . He has placed reliance upon paras 26 and 27 of this judgment. A perusal of this judgment reveals that the relevant observations in support of contention of the petitioners are contained in paras 23, 24, 25, 26 and 27 of this judgment. The observations of the Hon''ble Supreme Court in para 26 are reproduced below:
"It cannot, therefore, be said that the test of two legislations containing contradictory provisions is the only criterion of repugnance. Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field. The contention of Shri Sanghi that there is no repugnancy between the proviso to Section 5(5) of the Medical University Act and Section 10-A of the Indian Medical Council Act because both can be complied with, cannot, therefore, be accepted. What has to be seen is whether in enacting Section 10-A of the Indian Medical Council Act, Parliament has evinced an intention to cover the whole field relating to establishment of new medical colleges in the country."
However, in the present case, the petitioners have not pointed out as to how the payment of house rent allowance under the provisions of Maharashtra Act is in conflict with the provisions of Section 4 of Central Act No. 62 of 1976. A perusal of Section 4 reveals that the said section requires the Beedi Workers Welfare Fund to be applied to meet the expenditure in connection with the measures and facilities which, in the opinion of the Central Government, are necessary or expedient to promote the welfare of persons engaged in Beedi establishments. The Central Government is, therefore, obliged to utilise that fund to meet the expenditure incurred in connection with measures taken for various purposes including provision for housing or for improvement of housing for the benefit of persons engaged in Beedi establishments. This provision nowhere contemplates payment of any fixed House rent allowance every month to an employee engaged in beedi establishment. A perusal of provisions of Maharashtra Act will show that by virtue of Section 4, every employer is under obligation to pay to every workmen employed by him, house rent allowance, which shall not be less than 5% of wages payable to workmen for his services during a month, or twenty rupees, whichever is higher. There is also a proviso to it which entitles a workman to receive pro rata amount as House rent allowance if he has not worked for entire month. The provisions of sub-section (4) of this section stipulated that if employer is deducting any amount from wages of a workman towards residential accommodation provided by the employer and the amount so deducted is higher than the house rent allowance admissible to workman under sub-section (1), then the amount of house rent allowance admissible can alone be deducted and no house rent allowance is payable to such workman. However, if the employer is deducting amount which is less than the amount of house rent allowance to which the workmen is entitled under sub- section (1), the difference between the amount to which the workman is so entitled and the amount being actually deducted is required to be paid to workman. Section 5 provides that if employer is providing rent free accommodation, such employer is not required to pay any house rent allowance to such workman. It is thus clear that entitlement of a workman to receive house rent allowance does not depend upon the fact whether he actually resides in rented premises or not. Even if a workman is residing in his own house, he is entitled to this allowance. Sub-section (3) of Section 4 protects the workman if he is entitled to draw under the terms of his service or under any term, settlement or award, house rent allowance at a higher rate than that provided for in sub-section (1) and such workman continues to draw house rent allowance at such higher rate. There is no such obligation cast upon any employer by the provisions of Act No. 62 of 1976. Section 3 and Section 4 of the said Act only provided for establishment of a Welfare Fund and its utilisation. The provisions of Section 4(1)(a)(iv) cannot be, interpreted to mean that Central Government has to pay house rent allowance every month to the employee engaged in Beedi establishment. According to us, said clause enables Central Government to provide for housing or to take measures for improvement in housing. In such circumstances, the argument of the petitioners that both these provisions operate in same field cannot be accepted. Apart from this, under the provisions of Maharashtra Act, the service conditions of workmen are improved inasmuch as employer is under compulsion to pay house rent allowance every month along with wages to the workman. The provisions of Act No- 62 of 1976 do not affect/ improve in any way the service conditions of the persons engaged in beedi establishments. It is a welfare measure with no corresponding obligation upon the Central Government to utilise the fund for payment of house rent allowance. The petitioners have not pointed out any Scheme undertaken by Central Government which makes provision for housing or improvement of housing for the benefit of persons engaged in beedi establishments. The said argument, therefore, must fail.
The learned counsel for the petitioners has also overlooked the fact that the Maharashtra Act was reserved for the consideration of the President and the Hon''ble President has infact granted assent to this Act on 5-10-1988. Therefore also, if any repugnancy is presumed, still as assent is received from the President, the provisions of Maharashtra Act prevail and apply in the State of Maharashtra.
The only remaining and second point which is raised by the petitioners is about validity of section I sub-section (5) of the Maharashtra Act. Section 1 deals with short title, extent, commencement and application. The said section along with its sub-sections is reproduced below:
"1. Short title, extent, commencement and application - (1) This Act may be called the Maharashtra Workmen''s Minimum House-rent Allowance Act, 1983.
(2) It extends to the whole of the State of Maharashtra.
(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different areas in the State and for different industries or classes of industries.
(4) It shall apply in the area in which it is in force to every factory or establishment in an industry, in respect of which a notification is issued under sub-section (3), where, in relation to any industrial dispute concerning such industry, the State Government is the appropriate Government under sub-clause (ii) of clause (a) of Section 2 of the Industrial Disputes Act, 1947, (XIV of 1947), or to which the provisions of the Bombay Industrial Relations Act, 1946 (Bom. XI of 1947) apply, and in which factory or establishment fifty or such higher number of workmen as may be specified by the State Government by notification in the Official Gazette, are employed.
(5) Notwithstanding anything contained in sub-sections (3) and (4), the State Government may after giving not less than two months notice of its intention to do so, by notification in the Official Gazette and after considering any objections and suggestions which may be received, by like notification apply from a specified date the provisions of this Act to any factory or establishment in any industry or industries specified in the notification wherein less than fifty workmen but not less than such number of workmen as may be specified in the notification are employed.
(6) Once the provisions of this Act apply or are applied to any factory or establishment, in any industry under this section, they shall continue to apply to such factory or establishment, notwithstanding that the number of workmen employed therein falls below fifty or such higher or lesser number of workmen as may be specified under the notification issued under sub-section (4) or (5) as the case may be.
Explanation - For computing the number of workmen employed in any industry for the purposes of this section, the number of workmen employed in all the branches and units of the factories and establishments in the industry in the State of Maharashtra shall be taken into consideration, and if there is any doubt or dispute, the matter shall be referred to, and decided by, the State Government or any officer authorised by it in this behalf, and its or his decision, as the case may be, shall be final."
The learned counsel for the petitioners contend that sub-section (5) of this section has conferred unbridled and arbitrary power upon the State Government to apply provisions of this Act to any factory or establishment in any industry or industries wherein even less than 50 workmen are employed. The learned counsel point out that provision of sub-section (5) starts from the words notwithstanding anything contained in sub-sections (3) and (4). According to him, sub-section (3) of Section 1 permits State Government to put into force the provisions of Act from such date as the State Government may decide and further the State Government has been given power to decide different dates for different areas within the State for putting the provisions of Maharashtra Act into operation. He further points out that even different dates may be prescribed for extending the Act to different industries or class of industries. He points out that by virtue of sub-section (4), after the Notification is issued under sub-section (3) by the State Government, the Act is applicable in the area in which it is brought into force to every factory and establishment as mentioned therein if 50 or such higher number of workmen as specified by the State Government by Notification in the Official Gazette are employed in it. According to him, having provided for an area in which the Act is to be brought into force, the date on which the Act is to be brought into force and also minimum number of workmen to be employed in the industry to which Act is to be made applicable; by sub-section (5), all this has been done away with and a very wide power has been conferred by the State Legislature upon the State Government which enables the State Government to apply the Act to any factory or establishment or any industry situated anywhere and even if less than 50 workmen are working in it. This argument of learned counsel for the petitioners also cannot be accepted. The State Legislature has enacted a law which it is competent to enact and has made it applicable as mentioned in Section 1 sub-section (2) to whole of State of Maharashtra. In such circumstances, if by virtue of sub-sections (3) and (4), a power is given to the State Government to decide the date for putting the provisions of Act into operation or to decide the area in which the provisions of Act shall operate, there is nothing wrong in this delegation and the petitioners have not challenged the provisions of either sub-section (3) or sub-section (4) in any manner. Insofar as sub-section (5) is concerned, the State Government has been permitted to extend provisions of Maharashtra Act to even smaller industries employing less than 50 workmen and no fault can be found even with this delegation. The State Legislature has prescribed a notice of two months of such intention of State Government which is required to be published in the Official Gazette inviting objections and suggestions to its such move and further the State Government has to consider such objections and suggestions which it may receive. After its decision on such objections and suggestions, the State Government has to issue another, notification and apply the provisions of Maharashtra Act to such smaller industries or establishments. Even here the minimum number of employees are required to be taken into consideration and stipulated in Notification. Thus, there are sufficient guiding factors and protection for this purpose in Section 1 itself. The Act contains the provisions which require the employer to pay house rent allowance compulsorily to every workman. Sub-section (2) extends the provisions of said Act to entire State of Maharashtra. Therefore, there is no substance in the contention of the petitioners that by virtue of sub-section (5) of Section 1 very wide power has been conferred upon the State Government in arbitrary or uncanalised manner.
In the petition, the petitioners have prayed for quashing and setting aside of the Notification No. HRA-1084/9498(i) LAB-2 dated 26-12-1990. By this notification, the State Government has brought into force the provisions of Maharashtra Act with effect from 1-1-1991. A copy of this notification is not annexed with the petition. In the entire petition, the petitioners have not pointed out as to how many workers are employed by them. They have also not pointed out as to whether there is any notification issued by the State Government in exercise of powers conferred upon it by Section 1 sub-section (5). They have not pointed out whether in response to any such notification of its intention by the State Government, they had taken any objection before the State Government. Not only this, they have not pointed out as to how their rights are being affected by any such notification issued by the State Government u/s 1 sub- section (5). In the absence of this material on record, the arguments of the petitioners in this respect cannot be appreciated further.
In the result, there is no substance in the petition, the petition fails and is accordingly dismissed. No order as to costs. Rule is discharged.