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Judgment
Honourable Mr.Justice K. Chandru
1.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. 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)
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.
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-600006.
3.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,
(Emphasis added)
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.
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.
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.
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.
The second objection was that u/s 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 u/s 18 is excessive.
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)
10.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.
11.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._
12.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.
13.Mr.Vijay Narayan, learned Senior Counsel in support of his contentions referred to the judgment of the Supreme Court in Municipal
Corporation for City of Pune and another Vs. Bharat Forge Co. Ltd. and others, 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.
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...
14.He further referred to the judgment of the Supreme Court in Cantonment Board, Mhow and Another Vs. M.P. State Road Transport Corpn.,
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 u/s 7 of the Taxation Act but we are concerned with the leviability of tax on motor
vehicles u/s 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 u/s 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._
15.A further reference was also made to the judgment of the Supreme Court in State of U.P. and Others Vs. Hindustan Aluminium Corpn. and
Others, 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.
16.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.
17.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.
18.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 and Others Vs. Union of India (UOI) and Others, . 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, Advocate, Supreme Court of India
Vs. Union of India (UOI) and Others, 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.....
19.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 and Ors Vs. State of Punjab and Ors, 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._
20.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.
21.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)
22.In support of the said proposition, the learned Senior counsel placed reliance upon a judgment of the Supreme Court in Ghaziabad
Development Authority and State of U.P. Vs. Delhi Auto and General Finance Pvt. Ltd. and Maha Maya General Finance Co. Ltd. and another,
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 u/s 57 of the Act with the express approval........_ (Emphasis added)
23.He further referred to a judgment of the Supreme Court in Ashok Kumar Sahu Vs. Union of India (UOI) and Others, 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.
24.Reference was also made to a judgment of the Supreme Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Co-op. Housing
Society Ltd. and another, 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......._
25.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.
26.In K.T. Plantation Pvt. Ltd. and Another Vs. State of Karnataka, the Supreme Court in construing the procedures u/s 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.
27.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 u/s 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 u/s 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.
28.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 u/s 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.
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.
In this context, the learned Senior Counsel referred to a judgment of the Supreme Court in Sant Saranlal and Another Vs. Parsuram Sahu and
Others, 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._
31.He further referred to a judgment of the Supreme Court in V. Sudeer Vs. Bar Council of India and Another, 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 u/s 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 u/s
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 u/s 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......_
32.He further referred to a judgment of the Supreme Court in Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar
Pasawalla and others, 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......_
33.The learned Senior Counsel also referred to a judgment of the Supreme Court in M/s. Lilasons Breweries (Pvt.) Ltd. and another Vs. State of
Madhya Pradesh and others, 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.
34.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._
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 Vs. State of Gujarat and Another, 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.
36.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).
37.The Supreme Court vide judgment in Tamil Nadu Electricity Board and Another Vs. Status Spinning Mills Ltd. and Another, 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.....
38.The Supreme Court in Balram Kumawat Vs. Union of India (UOI) and Others, 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.
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._
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.
The Supreme Court in Manik Lal Majumdar and Others Vs. Gouranga Chandra Dey and Others, 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. _
40.The Supreme Court in Sankar Ram and Co. Vs. Kasi Naicker and Others, 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)
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).
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.