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PETITIONER: THE REGIONAL PROVIDENT FUND COMMISSIONER ETC.

       Vs.

RESPONDENT: SHILLONG CITY BUS SYNDICATE & ANR. ETC.

DATE OF JUDGMENT:       27/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATASWAMI K. (J)

CITATION:  1996 AIR 1546            JT 1996 (3)   581  1996 SCALE  (3)125

ACT:

HEADNOTE:

JUDGMENT:                             WITH                 CIVIL APPEAL NO.1282 OF 1990                       J U D G M E N T K. Ramaswamy C.A. No. 3140 of 1980      This appeal 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 Acts 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  Sixth  Schedule  to  the  Constitution  as  autonomous District by  operation of  proviso to  sub-paragraph (2)  of paragraph 20.  Although, it  has been stated that no part or the area comprised within the municipality of Shillong shall be deemed  to be within the Khasi Hills District for certain purposes mentioned therein, since their base is to ply their buses  beyond   Shillong  Municipality,   the  Act   is  not 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  judgment and order dated September 19, 1979,  per majority  of four  learned Judges, though for different reasons,  the Court had held that the Act does not apply to the Khasi Hills autonomous District; the dissenting learned  Judge   had  held   that  the   Act  would   apply. Accordingly, writ was issued. It was held that the Act being not  in   force  in   that  area   the  notice  was  without jurisdictions Thus, this appeal by special leave.      Shri P  A. Chowdhary,  learned senior  counsel for  the

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appellant, contended  that the  Fifth and Sixth Schedules to the Constitution  have  been  incorporated  to  protect  the autonomy of  the tribals and to evolve a separate scheme for the administration  of tribal  areas covered thereunder. The District or  Regional Councils have been constituted therein with a  view to  vest  in  them  the  legislative  power  on specified subjects  allotted in  relevant paragraphs  of the Schedules with  a  power  of  taxation  and  setting  up  of administration   and   system   of   justice   to   maintain administration  and  welfare  services  in  respect  of  the subjects enumerated  in the  respective paragraphs.  Article 245 of  the Constitution  empowers the  Parliament  and  the Legislatures of the States, subject to the provisions of the Constitution, to  make laws for the whole or any part of the territory of  India. The  Act was  made to implement welfare schemes to provide medical facilities and health care to the workmen of  the  industries  or  establishments  covered  or notified under the Act. On constitution of the autonomous District or Regional Council, by operation to 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  autonomous  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 respective States or shall apply to such District or Region or any part thereof subject to such  exceptions or  modifications as may be specified in that behalf in the notification. Autonomous District Council was constituted  w.e.f. June  27, 1952,  proprio vigore, the Act  stands   applicable  to   the  Khasi  Hills  autonomous District. The  notice issued  by the  appellant calling upon the respondents  to contribute  the arrears of the amount to the fund  is valid  in law.  Shri  D.P.  Mukherjee,  learned counsel for the respondents, contended that the Constitution intended to  protect the  autonomy  of  the  administration, operation of  law  and  administration  of  justice  in  the autonomous 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 Schedule 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  non obstante  clause engrafted in paragraphs 5 and 6 respectively, to  preserve the  autonomy of  the tribals. By operation of  the non obstante clause, the provisions in the Schedules  would   operate  exclusively  in  that  area.  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 learned 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 tribal or groups of tribal residing in far-flung areas specified in the Fifth or Sixth Schedules, the Constitution evolved separate scheme

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for the  administration of the tribal areas in south-eastern Region of  Assam, Meghalaya,  Mizoram, Tripura, Nagaland and Arunachal Pradesh.  The Sixth  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, revenue, forest, education,  public  health,  etc.  Paragraph  2  relates  to constitution of  District and Regional Councils. Paragraph 3 gives  legislative  powers  to  the  District  Councils  and Regional Councils  to make  laws for  autonomous District or Region in  respect of  areas  within  the  District  Council except those  which are  within the  authority  of  Regional Council, if  any. Within  the District,  District Council or Regional Council  shall have power to make laws with respect to clauses  (a) to  (j) enumerated  therein. The  laws  made thereunder shall be submitted to the Governor and they shall have no  effect until  the  Governor  gives  assent  to  it, preceding the  South-eastern Areas  (Organisation) Act, 1971 which came  into effect  w.e.f. June  21,  1972,  Similarly, Assam Organisation  (Meghalaya) Act,  1969  w.e.f  April  2, 1970, the Constitution [Sixth Amendment] Act (67 of 1968) in relation  to   Tripura  incorporating  paragraph  12-AA  and paragraph 12-B  in relation  to State  of Mizoram.  Original paragraph 12  was applicable  to the  State of  Assam. Under 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 including  power of  the Court of appeal in respect of the matters specified therein. The High Court also  has been given jurisdiction over such cases. The respective Councils  have power,  with the previous approval of the Governor, to make regulations concerning the subjects enumerated in  paragraph 4.  The Governor has been empowered to authorise  District or  Regional Councils to apply C.P.C. or Cr.P.C.  for the  trial of  suits or cases arising out of any law  enforced in  the respective  Regions  being  a  law specified in  that behalf  by  the  Governor.  Equally,  the Governor  has  power  to  withdraw  or  modify  such  powers conferred on respective Councils. Paragraph 6 deals with the power of  the District Council to establish primary schools, etc. Paragraph 7 relates to the District or Regional funds.      We are  concerned here with the interplay of paragraphs 12, 12-A and 19. In relation to State of Assam, paragraph 12 envisages that notwithstanding anything in the Constitution, the enactment  of the State legislature in respect of any of the matters specified in paragraph 3 as matters with respect to which  a District  or Regional Council and the Act of the State Legislature  prohibiting or restricting consumption of any non-distilled alcoholic liquor, shall not apply to those areas unless the District Council notifies their application with or  without exception or modification as it thinks fit. So far  as  Acts  of  Parliament  are  concerned,  paragraph 12(1)(b)  provides   that  the   Governor  may   by   public notification, direct  that any  Act of  Parliament or of the Legislature of the State of Assam to which the provisions of paragraph 12  (1)(a) do  not apply,  shall not  apply to  an autonomous District  or autonomous  Region  in  that  State. Equally,  he   is  empowered   to  direct,   by   a   public

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notification, that  they shall  apply to  such  District  or Region  or   any  part   thereof  with  such  exceptions  or modifications  as   may  be   specified  by   him   in   the notification.      After the formation of State of Meghalaya, by operation of paragraph  12-A(a) with  a non  obstante clause engrafted 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 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  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 Meghalaya State Legislature,  shall, to  the extent  of repugnancy, be void and  the law made 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 shall apply  subject to such exceptions  or modifications 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  or  Parliament  or  of  the  State Legislature shall  not apply  to any  such area  unless  the 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  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,  till  the  Council  is  so constituted and until the Governor, by a public notification makes an  Act of  Parliament applicable  to the area proprio vigore, it  has no  application. He  is also  empowered by a public notification, to make an Act of Parliament 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 corollary paragraph  12 begins  to operate  in  relation  to autonomous District 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 of Meghalaya. By operation  of paragraph 12 [1] (b) or paragraph 12-A (b), the Governor  or the  President, as  the  case  may  be,  by notification, may  direct that with respect to the area over which the  Regional or  District  Council  respectively  has jurisdiction, any  Act of Parliament shall not apply to such autonomous District  or Region  or  shall  apply  with  such modifications or  exceptions, as  may be  specified  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  on June  27,  1952?  Baharul Islam, C.J.  [as he  then was] has held that the District or

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Regional Council, as the case may be, does not have power to make laws  under paragraph 3 in respect of the Provided Fund provided  by   the  Parliament   under  the   Act.  On   the constitution of  District Council,  the  Governor  cases  to have power  under paragraph 12 and loses power to administer the  autonomous   District  given  under  paragraph  19.  By operation  of   paragraph  12   [l](b),  the   Governor   by notification may direct that the Act of Parliament or of the Legislature of  the State  of Assam  shall not  apply to  an autonomous District  or Region  or  shall  apply  with  such exceptions or  modifications as  may be  specified by him in the notification.  When the  Act was  enforced, the Governor had transitory power under paragraph 19, but he did not, by public notification  make the  Act applicable  to the  Khasi Hills autonomous district. The Act was not published in that region. Therefore,  the Act was not applicable, K.N. Saikia, J. (as he then was) in his dissenting judgment has held that after  the  the  constitution  of  autonomous  Khasi  Hills, paragraph 12-B  comes into  operation. since the President , any notification,  had not  excluded the  application of the Act to  the said  District, the  Act had  become applicable. Pathak and  Lahiri,  JJ.  traced  the  legislative  practice prevailing prior  to and during the period the Government of India Act,  1935 was  in force  and after  the  Constitution following the  legislative practice in that respect and held that unless  its application  was extended to that area, the Act did  not apply to that District. Hansaria J. [as he then was], in  a separate  but  concurrent  judgment  joined  the majority and  held that by operation of paragraph 19[1] (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  that 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 come 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  is  not permissible under the law.      There are  two more aspects of the matter. The first is that paragraph  19(1)  itself  states  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 1 to 18, which  include 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   nothing  in   paragraph  12  to  show  that  the Constitution-makers wanted  to do away with the effect which has been produced by paragraph 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 Legislature of Assam will automatically apply to these Regional Councils and to the District Councils. 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  to  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

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India" in  his "the  Anundoram Barooah Law Lectures - Second Series", M.  Hidayatullah C.J.  has stated  at page  53 that ˜[T]he  Sixth   Schedule  is   a  very  elaborate  piece  of legislation and  it had  undergone many changes since it was first enacted....The  constitutional amendments political in nature, the Acts of Parliament effect reorganization and the Presidential  orders   either  remove  difficulties  or  are promulgated in the performance of duties laid on the President by  the Sixth  Schedule itself".  Paragraph 12 [1] (b)  lays  down  that  any  Act  of  Parliament  or  of  the Legislature or  the State  of Assam  not covered  by special provisions  will   be  applied   with  such  exceptions  and modifications  as   the  Governor   may   specify   in   the notification.      B.L.  Hansaria,  J.  in  his  "Sixth  Schedule  to  the Constitution of India - a Study" [1983 Edition] published by M/s. Ashok Publishing House, Gauhati has stated at page 45 thus:      "In so  far as  the Acts  or  [sic]      Parliament   are   concerned,   the      provisions  in  respect  of  tribal      areas broadly  speaking is that the      Governor, in  case of  tribal areas      in  Assam,  and  the  President  in      respect of  the  two  other  tribal      areas,  may  notify  that  the  Act      shall not  apply to  an  autonomous      district or  region, or shall apply      subject  to   such  exceptions   or      modifications as  may be specified.      A question arises whether an Act of      Parliament  would   apply   proprio      vigore if  there be no notification      prohibiting its application".      Dealing with  paragraph 12-B,  the learned  author  has further stated thus:      "12(2) lays  down that  any Act  of      Parliament or of the Legislature of      the State  of Assam  not covered by      special provisions  will be applied      or not applied or applied with such      exceptions and  modifications as he      may  specify  in  his  notification      (Governor’s notification)."      [t would,  thus, be  clear that, on constitution of the District or Regional Councils paragraph 19 ceases to operate and power  of the Governor becomes co-terminus and ceases to exist. Simultaneously, the power of the District or Regional Council,  becomes  operational  to  make  laws  on  subjects covered in paragraph 3 of the Sixth Schedule. Proprio vigore, 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 Act of Parliament should not  be   made  applicable  or  made  applicable  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 proprio  vigore become  operative in  the acre  of the autonomous Regions or Districts in the State of Meghalaya.      The majority 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  [1] (b), since the Governor did not notify, by

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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 soon as the District Council was constituted under  paragraph 2,  paragraph  12-A  came  into operation with  effect from  June  27,  1952.  The  Acts  of 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 foce 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  1 of  the Act.  The law made by the Parliament, become operational, 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  extra- territorial operation.  Therefore, as  soon as  the Governor ceases to  have power  under paragraph  19, the  Act  became operative in  the area  or region  over  which  Khasi  Hills District Council had assumed 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 in 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.  Resultantly, the Act came into operation throughout the country except the State of Jammu & Kashmir. But  earlier, by  operation, of paragraph 19[l] (b) of  the  Sixth  Schedule,  due  to  a  non  obstante  clause engrafted therein,  its application  stood excluded since no notification was  issued by  the Governor  making  the  same applicable under  paragraph 19  [l] (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.   Every  endeavor   -   social, educational and 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 enumerated 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 worker is a fundamental right.  The  Act  seeks  to  provide  succor  to preserve that  right to  health to the tribal workers in the region. In this case, we are not concerned with the question of repugnancy. Therefore, Baharul Islam, C.J. and Saikia, 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 reasons mentioned hereinbefore, the need to make separate  publication is  redundant.  By  operation  of

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Section 1(2)  of the  Act, the  Act had  already  come  into operation on  March 4,  1952. The operation or paragraph 12- A(b) was  not at  all considered  by majority members of the Bench. The  reasoning of  Hansaria J.  also is not, with due respect, correct.  As pointed  out earlier,  paragraph  12-B becomes  operational  on  the  consisting  of  the  District Council. Consequently,  the Governor  ceases to  have  power under  paragraph  19  [1]  [b].  Resultantly,  there  is  no inconsistency or incongruity in their operation.      We, therefore,  hold that  the Act is applicable to the area of  the Khasi  Hills Autonomous District and the notice issued under  Section 7B  of the  Act 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  set aside. The minority view stands upheld. Consequently, writ  petition stands  dismissed but,  in  the circumstances, without costs. C .A. 1282 of 1990      In view  of the decision rendered above and the reasons therefore, this civil appeal is also allowed. No costs.