the Regional Provident Fund Commissioner Etc. v. Shillong City Bus Syndicate and Anr. Etc.

Judgment

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3140 (NCM) of 1980 Etc, From the Judgment and Order dated 19.9.79 of the Assam High Court in C.R. No. 82 of 1973. P. A. Chaudhary, M.L. Bhat, P. Parmeswaran, R.P. Srivastava and C.V.S. Rao for the Appellant. N.R. Choudhary, D.N. Mukherjee and Ranjan Mukherjee for the Respondents. The .Judgment of the Court was delivered by K. RAMASWAMY, J. CA. No. 3140 of 1980. This Appeaf by certificate granted by the High Court of Gauhati arises from its judgment dated September 19, 1979 in Civil Rule No. 82/73. The respondent-Shillong City Bus Syndicate filed the writ petition questioning the memo issued by the appellant on October 26, 1972 under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short, the 'Act') alleging non-payment of employees' Provident Fund Contribution for period from January to September 1972.

The principal contention raised by the respondent was that the operation of the transport service was within Khasi Hills District defined in paragraph 1 of Si>.th Schedule to the Constitution as autonomous District by operation of proviso to sub-paragraph (2) of paragraph 20. Although, it has been stated REG~L PROVIQENT FUND COMMR. v. SHILLONG Cl'TY BUS SYNDICATE [K. RAMASWAMY, J.] 945 that rio part·of the area comprised within the municipality of'Shillong shall A be deemed to .·be within the Khasi Hills District for, certain· purposes mentioned therein, since their ·based is to ply their. buses beyond Shillong Municipality, the Act is.no.t applicable to the autonomous District of Khasi Hills. The notice, ·therefore, .is without authority of law and jurisdiction. The, matter.was referred to a .larger.Bench of five learned Judges.

By B judgment and order dated Se)ite~ber 19, 1979,.per majority of four learned Judges, though· fon·different reasons, the Court had ·hdd. that the Act does not apply to the Khasi Hills au.t.onomous District; the dissenting learned J~dge had h.eld that the Act would apply. Accordingly, writ was issued: it was held that the Act being ncit .in force in that area the notice was without jurisdiction. Thus, this appeal by special leave. Shri P.A. Choudllary, learned senior. c6unsd for the ·appellant, contended ·thaHhe Fifth anii Sixth Sthedules·to the Constitution have beeh incorporated to protect the . autonomy of the tribals arid to evolve' 'a separate scheme· for the administration of .tribal areas cove~ed thereunder.' [).

The District"oi· Regionil Councils have ·been constituted therein with a view to vest in thetn the legislative 'power on specified s'ubjects allotted in relevaht paragraphs Of the Schedules with ;.·power of taxation and setting ~p of ·adctlniStratioiI and system.: of ji.tstice to ·mallitain ~dn1iniStration and Welfare services in respect of the subiects enume'rated in the respective paragraphs. Article 245 of the Constit~tion empowers the Parliament and E' the Legislatures:ofthe States,..subject to the provisions of the Constitution, t() ma.ke laws for. the whole or any part of .the territory of Inaia.

The Act was made to implement welfare schemes .~o provide medical facilities. and he.alth care to the workmen of the .industries or establishments covered or notified under the Act. ,.On constitution of the autonomous District ·or F Regional Goi.mcil, by operation of paragraph 12-1 (b).in relation to State of Assam and paragraph 12-A (b) in.relation.to Meghalaya, all the.Acts;of Parliament shall .apply to the notified •autonoincius District, unless. the' Governor or .the President, as the case.may.be, by notification directs that the particular Act of Parliament shall not apply to an autonomous District or an autonomous Region or a part thereof. in .the respeetive States or shall G apply to such District.:or Region··or.any part thereof subject. to such· exceptions. or .modifications as. may be. specifi.ed in· that behalf.ju the notification. Autonomous. District· Council was constituted w.e.f.

June 27, 1952, .proprio .vigore, . .the·.Act stands applicable to the ·Khasi Hills auninomous D,istrict. The notice issued by. the, appellant calling upon'the Hl .[1996] 3 S.C.R. A respondents to contribute the arrears of the amount lo the fund is valid in law. Shri D.P. Mukherjee, learned counsel for the respondents, contended that the Constitution, intended lo protect the autonomy of the administralion, operation of la\V and administration of justice in 'lhe autonon1ous District or Region suited to their environment to the exclusion of any law made by the Parliament or the State Legislature unless the Governor or the President, as the case may be, by a public notification, makes the Act applicable with or without such modifications or exceptions in relation to the autonomous District or Regions as may be specified in the notification. The Act was not made applicable by the President in relation to Khasi Hills autonomous District by a public notification.

The' object of the Sch.edule is to preserve the autonomy of the tribals and groups of tribals in the autonomous District by automatic application of Acts of Parliament or State Legislature. The Constitution, therefore, envisaged, with a 11011 obstante clause engrafted in paragraphs 5 and 6 respectively, to preserve the autonomy of the tribals. By operation of the 11011 obsta11te clause, the provisions in the Schedules would operate exclusively. in that a~ca. By necessary implication, the operation of. Acts of Parliament or State Legislatures as covered under the Schedule, did not automatically apply. The view of the majority of the olearned Judges, therefore, is correct in law. With a view to appreciate the contention and its effect on the decision on the autonomy of the District or the Region notified under the Schedules, it is necessary to look into the Constitution and the scheme envisaged in the Schedules.

Due to historical reasons of the tribals or groups of tribals residing in far-flung areas specified in the Fifth or Sixth Schedules, the Constitution evolved separate scheme for the administration of the tribal areas in south-eastern Region of Assam, Meghalaya, Mizoram, Tripura, Nagaland and Arunachal Pradesh. The Sixth Schedule contemplates constitution of autonomous District Councils or Regional Councils in Assam, Meghalaya, Mizoram and Tripura. Nagaland and Arunachal Pradesh stood excluded from the purview of the Sixth Schedule,. The District and Regional Councils are vested with legislative authority on specified subjects and allotted fields of legislative power on taxation and they are given power to set up and administer their system of justice and maintain administration and welfare services in respect of the subjects enumerated in paragraph 3 of the Schedule, in particular in respect of land, -l· . . I 1 REGNL. PROVIDENT FUND COMMR.1•. SHILLONG CITY BUS SYNDICATE [K. RAMASWAMY.

J.] 947 revenue; forest, .e<l.ucation, public health, etc. Paragraph 2 relates .to con- ~l'ilution o"f Pist~jct a?.~ R7gi,c;!~~l .C~uncil~ .. f:>.i~agrapq 3, gi~.~~ '1egi;lati.~e _powe;s to. th~ D_istrict <;:ouncils.an\f_ Regional Council~.to ".lake laws for autoµorilous District or ~egion, in .respect. of areas within. the .Distr_ict Council except those which,·are within the authority of.Regional Council, if any. Within the Disi;i~t: District Council or Regio1;~I Council shall have B power to .make laws,;vith respect to.dauses (a) to (j) enumerated therein . . The laws made·therc_under shall be submitted .to the GoverhOr and they shall.have no effect until the Governor gives assent to it, preceding the . South-eastern Areas (Organi~ation) Act, 1971 which came into.effect w.e.f. June 21, 1972, .Similarly, Assam Organisalion·(Meghalaya) Ad,. 1969 w.e.f. April 2, 1970, the C.onstitution (Sixth Amendment)

Act (67-of;1968) ·in C relation'to Tripura incorporating paragraph 12-AA and paragraph ·12-B.in relation to State·of Mizoram. Original paragraph .12 ,was .applicabkto·the State of Assam. Uµder paragraph 4; the.Regional·Councils or the District Councils have.· been empowered with the authority within the.-respective areas .to constitute courts, village Councils for the Administration of justice D including power of the Court of appeal in respect of the matters specified theteiri:The High Court also· has been·giveil jurisdiction over such cases. The· respective Councils have power; with. the-previous approval"of the Gover.nor, to make regulations· concerning ·the· subjects· enlifuetatf.<l in paragraph 4, The Govern OF· has been >empowered to authorise. Distri~t or Regional Councils to apply C.P.C. or Cr.

P.C. for the trial of suits or c~se's E arising out of any Jaw enforced in the respective R~gions being ,a law 1 specified in that behalf by the Governor: ·Equally, the Goveiiia't h~s power to Withdraw or modify such· po\vets conferred. on. respective Councils'. P~ragraph 6 ddls with 'the power ·or the .District Coiineino establish primary sch'ools, etc. Paragraph 7 relates to the Disfricl or 'Regional fonds. • ;u ~h. ·- We are. concerned here with the i.nterpl.ay of paragraph_s .12, i2-A , . If'• ·. and 19. In relation to State of Assam, paragraph· 12 ·envisages that ~otw!thstanding, anything in ''the Constitution, tiie enactme~t of the. State 1 r legislature in respect of any of the matters specified in paragraph 3 as matters with resp~ct to' which ~ dist'riCt. oi. Regi6nal Cou~cil and iii~ .A~t G '' t;,o , ~ '

1. of the State Legislature prohibiting or restricting consumption of ,any nondistilled alcoholic liquor, shall not apply. to those areas .. unless the District Council notifies their applicatio~ with or _;;ihout,exception or mo,tification as t~~thi~ks .. fit. s·o ra~·. as .Acts ;of .f!arii~m·~~t .ar~· ~once~.~~a,·.P~ragTapJ-i 1:i(i)(b) provides that the Gov~rno;·~ay byp~biic notificati6n, direct that H A any Act of Parliament or of the Legislature of the State of Assam to which the provisions of paragraph 12 (l)(a) do not apply, slza/1110/ apply lo an autonon1ous Disflict or aulono1nouJ Region in that State. Equally, he is empowered to direct, by a public notification, that they shall apply to such District or Region or any parl thereof with such exceptions or modifica- B tions as may be specified by him in the notification.

After the fo.rmation of State of Meghalaya, by operation of paragraph 12-A( a) with a n011-obsta11te clause engraftcd therein, that if any provision of a law made by a District or Regional Council in the State of Meghalaya, with respect to any matter specified in sub-paragraph (1) of paragraph 3 C of the Sixth Schedule or if any provision or any regulation made in paragraph 8 or paragraph 10, is repugnant to any of the provisions of a law Y made by the Meghalaya State Legislature with respect to that matter, then, the law or regulation made by the District Council or Regional Council whether made before or after the law made by the Meghayala State Legislature, shall, to the extent of repugnancy, be void and the law made D by the Legislature of Meghalaya State shall prevail.

Clause (b) of paragraph 12-A provides that the President may with respect to any Act of Parliament, by notification, direct that it shall not apply to any autonomous District or Region in the State of Meghalaya, or E shall apply subject to such exceptions or modification as may be specified therein. Paragraph 19 is a transitory provision pending constitution of the District or Regional Council in the State. Therein, the Act of Parliament or of the State Legislature shall not apply to any such area unless the F Governor by public notification, so directs and makes it applicable with such exceptions or modifications as he may specify in the public notification. Equally, the Governor has the power to make regulations or power to repeal or' amend any Act of Parliament or of State Legislature or any existing law which for the time being is applicable to such area. He has got G power also to make such direction with retrospective effect.

They shall be submitted forthwith to the President and until they are assented to by the President, they shall have no effect, as envisaged in paragraph 19(3). It would; thus, be seen that the operation of paragraph 19 is transitory. pending constitution of the autonomous District Councils. Therefore, H till the Council is so constituted and until the Governor, by a public REGNL. PROV!DEr>-'T FUND COMMR. ~-.SHILLONG.CITY BUS SYNDICATE [K. RAMA.'i~AMY;J.J 949 notification makes an Act of Parliament applicable to the area Prop1io A vigore, it has no application. He is also empowered by a public notification, to make an Act of Parliamen.t applicable with such modifications or exceptions -as ·he may specify.'

As soon as the District or Regional Council is constituted, the' power under paragraph 19 ceases to operate and as a cofollary paragraph 12 b~gins to opc~ttte in relation to a?tonomous J?istrict Council or Regional Council in the State of Assam and paragraph 12-A begins to operate in respect of the District or Regional Council in the State ofMeghalaya. By operation of paragraph 12 [l](b) or paragraph 12-A (b), thi!°Goverrior or the President, as the case may be, by notification, may direct thai with· respect to the area over which the Regional or District Council respectively has jurisdiction, any Act of Parliament shall.not apply C to such auion~mous Dist~ict or Region or shali apply with such modifications_ or exceptions, as may" be ·sp~cified in the notification.· The question arises : as to whether the Act applies to Khasi Hills autonomous District after the Council to the said District was constituted D OI) June 27, 1952? Baharul Islam, C.J. [as he then was] has held that the District or Regional Council, as the case my be, does not have power to make· laws under paragraph 3 in respect of the Provident Fund provided by .. the Parliament under the Act.

On the constitution of the District Council, the Governor ce;!Ses to have power under paragraph 12 and loses E power to administer the autonomous.District given under paragraph 19. By operation o~ paragraph 12 [l](b), the Governor by noti_fication may direct that the Act of Parliament 0r of the Legislature of the State of Assam shall not apply to a~ autonomous District or Regi'on or. shall apply with such t exceptions or modifications as n1ay be spccified_by.him in the notification. When the Act was enforced, the Governor had transitory ppwer under paragraph 19, bu.I h<: did not; by public notification make the Act ap-. plicable to the Khasi Hills autonomous district. The Act was not published in !hat ~egion. Therefor~, the Act \vas .riot applkable. K.N. Saikia, J. (as he then was) in his dissenting judgment has held that after the constitution of a~t~n~mous· Khasi Hills, paragraph 12-B comes into operati~n.

Since th.e G President, by notification, had not exclud'd the application of the Act. to the said District, the Act had become applicable. Pathak and Lahiri, JJ. tr.aced the legislative practice prevailing prior .to and during the period the Government of India Act, 1935 was in force and after the ·Constitutiµn following the legislative practice in that respect and held that unless its H A application was extended to that area, the Act did not apply to that District. Hansaria, J. fas he then was], in a separate but concurrent judgment joined the majority and held that by operation of paragraph 19[l](b), since the Governor had·not made the Act applicable to the area it did not apply to the region. Paragraphs 12 and 19 are to be interpreted harmoniously so B lhal no part of the provisions is rendered otiose or nugatory.

The learned Judge further held that if he were to hold that paragraph 12 had conic into operation, the Act of Parliament which was enacted even when paragraph 19 was in operation the Act would have come into force automatically and he would have in a way made the provisions of paragraph 19 otiose which C is not permissible under the law. There are two more aspects of the matter. The first is that paragraph 19(1) itself slates that the provisions contained in it would apply to the administration of the areas within such district, instead of the foregoing provisions of the Schedule, that is to say, paragraphs l to 18, which include D paragraph 12: So, there is no escape from the conclusion that during the transitional period, paragraph 19 would exclude paragraph' 12 which operates. So,' what follows from paragraph 19 has to be given effect to.

There is noting in paragraph 12 to show that the Constitution-makers wanted to do away with the effect which has been produced by paragraph E 19. · Dr. Ambedkar, during the debates in the Constituent Assembly stated in unequivocal terms that "the other binding force is this that the laws made by Parliament and the laws made by the Legisl~ture of Assam will automatically apply to these Regional Councils and to the District · Ci1tiiicils. Unless the Governor thinks that they ought not to apply, in other words, the burden is upon the Governor to show why the law which is made by the Legislature of Assam or by the Parliament, should not apply. Generally, the laws made by the Legislature and the laws made by the Parliament will also be applicable td these areas''. [Vide Constituent Assembly debates (Vol. 9) at page 1026]

Tracing the legislative history of the Schedule, in "(T)he Fifth and Sixth Schedules of the Constitution of India" in his "the Anundorm Barooah Law Lectures - Second Series'', M. Hidayatullah, C.J. has stated at.page 53 that :(T)hc Sixth Schedule is a very elaborate piece of legislation and it had ·REGNL. PROVIDENT FUND COMMR. ,.; SHILLONG CITY BUS sYNb!CA'rE (K. RAMASWAMY, J.]

951 undergone many changes since it was,first enacted"""' :The, constitutional A amendments political in nature, '{he Acts' of Parliainertt effect reorganisation, and, the Presidential orders either reinove 'difficulties or are promulgated in the performance of duties laid on the ''President by' the Sixth , Schedule itselt", Paragraph 12[1J(b) lays aown that any Act of Parliament or of, the Legislature of the State of Assam rn:\t covered 'by special B provisiqns will be applied with ~uch exceptions and modifications as the :,Governor may specify' in the notific~tion, ,B~L Hansaria, J, in his "Sixth"Schedule to the Constitution oflndia a 'Stu.dy" [1983 'Edition] published'"by M/s, Ashok Publishing House, "Gauhati has st,ated at page 45 thus : ''In so, far as the Acts or '(sic)

Parliaineht are "concerned, 'the ' provisions in ;esp~ct of tribal areas broadly speaking is that the ··.Governor,· in case, of trlbaI 3.reas in· Assam, ·and the President in ~especfofthe two other:trib~l areas, mayhotify t,hat the Act shall' D not:apply to an autonomous district or region, or shall apply subject to duchexceptiOns or modifications as,ffiaybe speCified, A question arises whether a~ Act of' Parliament would apply proprio vigore if ~there·'be' no nOtificati~n ·prtihibi~in:g its -apy)'liciitidn 11 ,"Dealing'wi!h ,paragraph 120B, the leaine(l.'author'has ftirthedfaied E. ·thus: , "12(2) lays doW11 ,that 'any Act of Parliament or of the·Le'gislatur~ · , of ,the State of Assam"nbt'Cbvered ,by special, provisions Will be' , , 'applied or not applied or applied with such ·exceptions ancl F •modifications. as he may speCify in his notification (Governor's notification).

11 ·1t,.would, ·thus, :be clei:Lr ·that, on cons~itution ~f--thc· District or Regional Council, , paragraph 19 ceases to ope,rate amd power of the ·Governor becomes co .. terminus and _.ceases to exist. Simultaneously, the G power of the District or ,Regional Courtcil, becomes operational to make , laws on ,subjects covered 'in_ paragraph 3 of the Sixth Schedule, Proprio vigdre, paragraph 12-A comes into,force. By operation of paragraph 12- A{b ), the President has been empowered to direct by a, notification that any Ad of Parliament should not bc'made applicable oi'made applicable H A with such modifications and exceptions, as may be specified in the said notification. In !Other words, until such notification is published by the President, all Acts of Parliament which are not occupied by the provisions contained in paragraph 3 shall pro]Jlio vigore become operative in the area of the autonomous Regions or Districts in the State of Meghalaya.

The ma.iority of the learned Judges appeared to be under the impression that during transitory period until the District or Regional Council is constituted, the Governor's power under paragraph 19 operates the field. By operation of paragraph 19 Ill (b), since the Governor did not notify, by a public notification, that the ·Act would be applicable to the autonomous Khasi Hills District, it did not come into operation. Equally, after the District Council was constituted the Act did not become automatically operative. That appears to be the basis on which the learned Judges decided the issue, though for different reasons. With due respect, the learned Judges did not angulate the problem from proper perspective. As .D , soon as the Distr'icl Cou'ncil was constituted under paragraph 2, paragraph 12-A came into operation with effect from June 27, 1952.

The Acts o.f Parliament made under Article 245 has territorial or extra-territorial operation by virtue of notification published in the Gazette of India after the President gave his assent. Baharul Islam, C.J. (as he then was) has held ; that publication of the Act in the region is a pre-condition for the Act to come into operation. It is seen that the Act was already published in the Gazette of India and it came into foree w.e.f. March 4, 1952 throughout the territory of India except in the State of Jammu & Kashmir, by operation of sub-section (2) of Section l of the Act. The law made by the.Parliament, becon1es opc,rational, subject to the provisions of the constitution, for the ·whole or any part of the territory of India. No law made.by the.Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operati~1n.

Therefore, as soon as the Governor ceases to have power under paragraph 19, the Act because operative in the area or region over \vhich Khasi Hills District Council-had assun1ed power under paragraph 12-A (a). Soon thereafter, paragraph 19 ceased to operate. Proprio vigore, the Act of Parliament came into operation for the area of Khasi Hills District until the President, by a notification, exclude its application to that area or made it applicable with such modifications and exceptions as may be specified in a notification published in this behalf in the Gazette of India. Admittedly, no such notification was published by the President. . ;REGNL. i>ROV(DENT FUND COMMR. •·. 1 SHILLONG CITY BUS SYNDICATE [K. RAMAS\VAMY,J.J 953 Resultantly, the Act came into operation throughout 'the country except the A State of Jam mu & Kashmir.· But earlier, by operation of paragraph 19(i)

(b) of the Sixth Schedule, due to a 11011 obstante ·clause c!lgrafted therein, its applicati(m stood excluded since no notification was issued by the Governor making the same applicable under paragraph 19(1) (b) to that autonomous District which ceased to.be operative from June.26, 1952. It is true that the autonomous nature of the administration was sought to be preserved by the Constitution as envisaged in Sixth Schedule giving power to the District or Regional Council to make laws in respect of the matters enumerated in paragraph 3. With passage of time the tribals or groups gradually must assimilate in the main stream of national life. C E_very endeavour - social, educational arid economic empowerment should be made to bring them into the mainstream of national life. The contribution to the fund under the Act is not one of the subjects e;umerated in paragraph 3. Therefore, the. Act is not an occupied field assigned to the autonomous District Council.

It is well-settled law that right to health to a D worker is a fundamental right. The Act seeks to provide succour .to · preserve that right to health to the tribal workers in the region. In this case, we ar_e not concerned with the question of repugnancy. Therefore, Baharul Islam, C.J.; and Saikai, J. rightly have pointed out that the Act was applicable to that area but the learned Chief Justice was in error in holding that there should be separate publication of the Act 'in that region. For the E reasons mentioned hereinbefore, the need to m~ke sep~rate publication is redundant. By operation of Section 1(2) of the Act, the Act had already come into operation on March 4, 1952. The operation of paragraph 12- , A(b) was not at all considered by majority members of the Bench. The reasoning of Hansaria, .L abo is not, \Vith due respf:ct, correct As pointed F out earlier, paragraph 12-B becomes operational on the constitution of the District Council.

Consequently, the Governor ceases to have power under paragraph 19(1)(b). Resultantly, there is no inconsistency or in~ongruity in their operation. We, therefore, hold that the Act is applicable to the area of the Khasi G Hills Autonomous ·District and the notice issued under Section 7 B of the Ad is applicable to the respondent. The respondent is bound to comply with the same. The appeal is accordingly allowed. The order of the majority stands H set aside. The minority view stands upheld. Consequently, writ petition stands dismissed but, in the circumstances, \Vithout costs. C.A. 12112 of 1990 ln view of the decision rendered above and the reasons therefor, this civil appeal is also allowed. No costs. R.P. Appeal .allowed. L