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CASE NO.: Appeal (civil)  86-89 of 2000

PETITIONER: Engineering Kamgar Union

RESPONDENT: M/s. Electro Steels Castings Ltd. & Anr.         

DATE OF JUDGMENT: 16/04/2004

BENCH: Y.K. Sabharwal & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The question of application of Clause (2) of Article  254 of the Constitution of India is involved in this appeal  which arises out of the judgment and order dated 14.10.1999  passed by the High Court of Allahabad dismissing the writ  petition filed by the appellants herein and allowing the  writ petitions filed by the respondent-company herein.  

BACKGROUND FACTS:

       The appellant herein is a Trade Union registered under  the Indian Trade Unions Act, 1926.  The first respondent  herein is an industrial establishment carrying on business  in Engineering Industry.  It admittedly employed more than  100 persons in its factory at Ghaziabad.  A notice was  issued by it on or about 21.9.1998 declaring its intention  to close down the said factory at Ghaziabad with effect from  23.9.1998 as a result whereof it was notified that services  of 99 workmen would be terminated.

       An industrial dispute was raised by the appellant  herein on or about 23.9.1998 questioning the validity of the  said notice raising a factual plea that more than 300  workmen are employed by the first respondent in its  Ghaziabad establishment and, thus, the Industrial Disputes  Act, 1947 (hereinafter referred to as "the Central Act")  would be applicable.  Pursuant to or in furtherance of the  purported complaint made by the appellant herein, a notice  was served by the Assistant Labour Commissioner upon the  first respondent herein directing it to show cause as to why  it should not be prosecuted for contravention of the  provisions contained in Section 25 of the Central Act.  In  its reply dated 3.10.1998, the first respondent raised a  plea to the effect that as the number of employees in the  said industrial undertaking was less than 300, no permission  for closure of the industrial undertaking was required in  view of Section 6-W read with Section 6-V of Uttar Pradesh  Industrial Disputes Act, 1947 (hereinafter referred to as  ’the State Act’).

       Two recovery certificates were issued against the first  respondent towards the salary of the workmen under the State  Act.  Three writ petitions came to be filed by the first  respondent questioning the show-cause notice as also the

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recovery certificates aforementioned.  The appellant herein  also filed a writ petition questioning the closure notice  issued by the appellant.  By reason of the impugned  judgment, the writ petitions filed by the first respondent  were allowed, whereas the writ petition filed by the  appellant herein was dismissed.

HIGH COURT JUDGMENT:

       The High Court in its impugned judgment held that  having regard to the fact that Chapter V-B of the Central  Act was inserted on or about 21.8.1984, the State Act having  been enacted in the year 1983 whereby and whereunder Section  6-V to 6-X were inserted, the latter shall, having regard to  Article 254 (2) of the Constitution of India, prevail over  the former.  The High Court although took notice of the fact  that the Chapter V-B of the Central Act came into force in  the year 1984, it was held that in view of the phraseology  used in Article 254 the repugnancy has to be tested in terms  of the date of enactment of the legislation in preference to  the date of its coming into force.  In support of its  aforementioned conclusion, strong reliance was placed by the  High Court on the decision of this Court in Pt. Rishikesh  and Another Vs. Salma Begum [(1995) 4 SCC 718].

SUBMISSIONS:

       Mr. Gaurab Banerjee, learned senior counsel appearing  on behalf of the appellant has raised a number of  contentions in support of these appeals.  At the outset the  learned Counsel had taken us through the relevant provisions  of the Central Act, State Act and submitted as under:

(i)     A perusal of the Central Act would show that the  relevant provisions relating to closure are found in  Chapter V-B of the Act covering Sections 25K to 25S.   Section 25K, as it stands, provides that Chapter VB  applies to industrial establishments employing not  less than 100 workmen.  Section 25O provides for the  procedure for closing down an undertaking.  Section  25S provides inter alia that Section 25J in Chapter  V-A shall also apply in relation to an industrial  establishment to which the provisions of Chapter V-B  would apply.  A reading of the said provision and in  particular Sub-Section (2) thereof would show that  the Central Act would govern the rights and  liabilities of both the employers and the workmen  insofar as they relate to layoff and retrenchment  notwithstanding the State Act laying down provision  to the contrary and in that view of the matter the  Central Act shall be applicable. (ii)    Reading Sections 25K and 25S of the Central Act  along with Section 25J of the Central Act, it is  clear that in relation to industrial establishments  having more than 100 workmen, the rights of workmen  in respect of layoff, retrenchment and closure would  have to be decided as per the Central Act,  regardless of any State law.  Necessarily the  procedure under Section 25O would have to be  followed in such a case before effecting any  closure. (iii)   Sections 6J to 6Q of the State Act providing for  layoff and retrenchment although are in pari materia  with Chapter V-A of the Central Act which contain a  non-obstante clause by way of Section 6R titled

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"Effect of Laws Inconsistent with Section 6J to 6Q"  and in terms of Sub-Section (2) whereof the  provisions of the State Act were to have effect over  any other law inconsistent with Section 6J to 6Q and  in that view of the matter although there was an  irreconcilable conflict between the relevant  provisions of State Act and the Central Act as has  been held by this Court in U.P. Electricity Supply  Co. Ltd. Vs. R.K. Shukla and Anr. Etc.  [(1970) 1  SCR 507]; but in relation to Chapter V-B there does  not exist any such conflict inasmuch as whereas  Section 25J has become part of Chapter V-B by reason  of Section 25S of the Central Act, Section 6R of the  State Act remained unaltered and in that view of the  matter the non-obstante clause contained therein  make the same prevail over the State Act. (iv)    In terms of Section 25O of the Central Act, the  provisions of Chapter V-B would be applicable to an  industrial establishment employing one hundred or  more workmen; and although in terms of the State Act  inter alia the provisions relating to those would  not apply to industrial establishment employing less  than 300 workmen, but there does not exist any  irreconcilable or intolerable inconsistency as it is  possible to apply both the Central Act and the State  Act by the employer upon following the procedure  laid down under the Central Act and, thus, it is  possible for the employer to obey both the laws.   There, thus, does not exist any contradiction or  repugnancy.  Reliance in this behalf has been placed  on M/s. Ram Chandra Mawa Lal, Varanasi and Others  Vs. State of Uttar Pradesh and Others [1984 (Supp)  SCC 28], Zaverbhai Amaidas Vs. The State of Bombay  [(1955) 1 SCR 799], Municipal Corporation of Delhi  Vs. Shiv Shanker [(1971) 1 SCC 442] and M.  Karunanidhi Vs. Union of India and Another [(1979) 3  SCC 431]. (v)     In any event, even assuming that Article 254 of the  Constitution would be attracted in the instant case,  Section 6V to 6W of the State Act having received  the assent of the President on 10.10.1983 and the  Central Act (Act No. 46 of 1982) having been brought  into force with effect from 21.8.1984, the question  of Presidential Assent of the State Act must be  judged.  Relying on  Shyamakantlal Vs. Rambhajan  Singh [1939 FCR 193], Ch. Tika Ramji & Others etc.  Vs. the State of Uttar Pradesh & Others [1956 SCR  393], Municipal Council Palai Vs. T.J. Joseph and  Others [(1964) 2 SCR 87], Kerala State Electricity  Board Vs. Indian Aluminum Co. [(1976) 1 SCR 552] and  Belsund Sugar Co. Ltd. Vs. State of Bihar and Others  [(1999) 9 SCC 620], Mr. Banerjee would submit that   at the material time when Presidential assent was  obtained for the State Act in 1983, there was no  repugnancy in fact but there existed merely a future  possibility of repugnancy.  Seeking to distinguish  the decision of this Court in Rishikesh (supra) Mr.  Banerjee would urge that the same was distinguished  in M.P. Shikshak Congress and Others Vs. R.P.F.  Commissioner, Jabalpur and Others [(1999) 1 SCC  396].  Furthermore, as it was held as of fact in  Rishikesh (supra) that there did not exist any  conflict, it was argued, the purported law laid down  Clause (2) of Article 254 must be held to be a mere  obiter.

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(vi)    In any event before Clause (2) of Article 254 is  applied, a finding of fact must be arrived at that  the President was actually informed about the reason  for grant of his assent and as no records had been  produced by the State showing the proposal placed  before the President by it, no inference can be  drawn that the same fulfilled the constitutional  mandate.  Reliance in this behalf has been placed on  Kaiser-I-Hind Pvt. Ltd. and Another Vs. National  Textile Corpn. (Maharashtra North) Ltd. And Others  [(2002) 8 SCC 182].

       Mr. Jayant Bhushan, learned senior counsel appearing on  behalf of the respondent, would, on the other hand, submit  that whereas under the State Act the procedure to issue  notice before the closure of the industrial undertaking was  not required to be followed, the Central Act and the State  Act must be held to be irreconcilable and repugnant to each  other.  The learned counsel would contend that the  provisions of the State Act and the Central Act produce two  different legal results and, in that view of the matter,  Clause (2) of Article 254 would apply having regard to the  fact that the statutory schemes of both the Acts are  distinct and different.   

       Mr. Bhushan would urge that keeping in view the fact  that Clause (2) of Article 254 refers to a Central Act which  had already been made, the application thereof at a later  stage would be wholly immaterial and irrelevant.   

       The learned counsel would submit that the decision of  this Court in M.P. Shikshak Congress (supra) is not  applicable to the fact of the present case whereas the  decision in Rishikesh (supra) is.

       As regard applicability of ratio of this Court in  Kaiser-I-Hind (supra), Mr. Bhushan, would argue that the  decisions relied therein clearly demonstrate that such a  question should be raised in the writ petition itself so as  to enable the State Government to bring the relevant  documents on records.  As the appellant herein did not raise  such a contention either in the writ petition or in the  Special Leave Petition, the learned counsel would contend,  that the appellant should not be permitted to raise the same  at this stage particularly having regard to the fact that  there exists a presumption as regard legality and validity  of an official act.

       As regard applicability of the non-obstante clause  contained in Section 25S vis-‘-vis Section 25J of the  Central Act, Mr. Bhushan would submit that the former  introduced a non-obstante clause as regard Chapter V-A and,  thus, Section 25J cannot be held to have formed a part of  Chapter V-B.  In any event, he would urge that even if  Section 25S vis-‘-vis Section 25J have an overriding effect,  the constitutional provisions contained in Clause (2) of  Article 254 shall prevail thereover.

ANALYSIS:         The Central Act as also the State Act have been enacted  in terms of Entry 22 of List III of the Seventh Schedule of  Constitution of India.  Both Acts were enacted in the year  1947.  Chapter V-A of the Central Act relates to layoff and  retrenchment which was inserted by Act No. 43 of 1953.   Section 25J provides for effect of laws inconsistent with

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Chapter V-A of the Central Act.  It had an overriding  effect.  The State Act was amended in the year 1957  providing for layoff and retrenchment.  It is not in dispute  that Section 6R of the State Act provides for effect of laws  inconsistent with Sections 6J to 6Q and in terms of sub- Section (2) thereof, the provision of Section 6R shall be  deemed not to affect the provision of any other law for the  time being in force.

       The Parliament introduced special provisions relating  to layoff, retrenchment and closure by inserting Chapter V-B  in the Central Act in certain establishments containing  Section 25K to 25S in the year 1976.  In terms of Section  25K, Chapter V-B was to apply in an establishment in which  not less than 300 workmen are employed.  Section 25S  provides that certain provisions of Chapter V-A including  Section 25J shall apply to an industrial establishment to  which the provisions of Chapter V-B apply.   

       It may be true that the reason for amending Chapter V-B  of the Central Act by reason of Act No. 46 of 1982 inter  alia was to extend the beneficient provisions to workmen of  small establishments by reducing the existing employment  limit thence from 300 to 100.  But it is equally true that  the State Act was amended by Act No. 26 of 1983 after the  amendment of the Central Act.  It is not in dispute that  Section 25K and Section 25O of the Central Act are in pari  materia with Sections 6V and 6W of the State Act.  We must  also notice that whereas the Central Act received the  President’s Assent on 31.8.1982, the State Act received the  President’s Assent on 10.10.1983.  It is also not in dispute  that by reason of the State Act the Chapter relating to  layoff retrenchment and closure was made applicable in  relation to an industrial establishment wherein not less  than 300 workmen are employed.  The amending Act of 1982 was  published in Gazette of India on 1.9.1982 and was given  effect to from 21.8.1984 whereas the State Act was published  in the U.P. Gazette on 12.10.1983 and was given effect to  from 3.8.1983.

CONSTITUTIONAL SCHEME: Before analyzing the relevant provisions of the State  Acts vis-‘-vis ’the  Act’, we may have an overview of the  constitutional scheme.   Articles 245 and 246 of the  Constitution of India read with the Seventh Schedule and  Legislative Lists contained therein prescribe the extent of  legislative competence of Parliament and State Legislatures.   Parliament has exclusive power to make laws with respect of  any of the matters enumerated in List I in the Seventh  Schedule.  Similarly, State Legislatures have exclusive  power to make laws in respect of any of the matters  enumerated in List II, but the questions raised herein must  be considered keeping in mind the fact that the Parliament  and State Legislatures both have legislative power to make  laws with respect to any matter enumerated in the Concurrent  List.

       The various entries in the three Lists are fields of  legislation.  They are designed to define and delimit the  respective areas of legislative competence of the Union and  State Legislatures.  Since legislative subjects cannot  always be divided into water tight compartments; some  overlappings between List I, II and III of the Seventh  Schedule is inevitable.  

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       As in  a federal Constitution division of legislative  powers between the Central and Provincial Legislatures  exists, controversies arise as regards encroachment of one  legislative power by the other particularly in cases where  both the Union as well as the State Legislation have the  competence to enact laws.  Article 254 provides that if any  provision of a law made by the Legislature of a State is  repugnant to any provision made by the Parliament which  Parliament is competent to enact, or to any provision of an  existing law with respect to one of the matters enumerated  in the Concurrent List then subject to provisions of clause  (2), the law made by the Parliament shall prevail to the  extent of the repugnancy required.                  In terms of clause 2 of Article 254 of the Constitution  of India  where a law made by the legislature of a State  with respect to one of the matters enumerated in the  Concurrent List contains any provisions repugnant to the  provisions of an earlier law made by the Parliament or an  existing law with respect to the matters, then the law so  made by the Legislature of such State shall, if it has been  reserved for consideration of the President and has received  its assent, prevail in that State.  It is not in dispute  that the 1961 Act has received the assent of the President  of India and, thus, would prevail over any parliamentary law  governing the same field.

Article 254 of the Constitution of India would be  attracted only when legislations covering the same ground  both by Centre and by the Province operate in the field;  both of them being competent to enact.  [See Deep Chand vs.  State of Uttar Pradesh and Others. [AIR 1959 SC 648]; M.  Karunanidhi (supra) and The State of West Bengal Vs. Kesoram  Industries Ltd. And Ors., [2004 (1) SCALE 425].

       Recourse to the said principles, however, would be  resorted to only when there exists direct conflict between  two provisions and not otherwise.  Once it is held that the  law made by the Parliament and the State Legislature occupy  the same field, the subsequent legislation made by the State  which had received the assent of the President of India  indisputably would prevail over the parliamentary Act when  there exists direct conflict between two enactments.  Both  the laws would ordinarily be allowed to have their play in  their own respective fields.  However, in the event, there   exists any conflict, the Parliamentary Act or the State Act  shall prevail over the other depending upon the fact as to  whether the assent of the President has been obtained  therefor or not.

       The Central Act and the State Act indisputably cover  the same field.  The jurisdiction of the State Legislature  to enact a law by a Parliamentary legislation is not  impermissible.  Subject to the provisions contained in  Article 254 of the Constitution of India, both will operate  in their respective fields.  The Constitutional Scheme in  this behalf is absolutely clear and unambiguous.  In this  case, this Court is not concerned with the conflicting  legislations operating in the same field by reason of  enactments made by the Parliament and the State in exercise  of their respective legislative powers contained in List I  and List II of the Seventh Schedule of Constitution of India  but admittedly the field being the same, a question would  arise as regard the effect of one Act over the other in the  event it is found that there exists a conflict.  For the

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said purpose, it is not necessary that the conflict would be  direct only in a case wherein the provisions of one Act  would have to be disobeyed if the provisions of the other is  followed.  The conflict may exist even where both the laws  lead to different legal results.                  In Zaverbhai Amaidas (supra), it is stated:

"The principle embodied in Section 107  (2) and Article 254 (2) is that when  there is legislation covering the same  ground both by the centre and by the  Province, both of them being competent  to enact the same, the law of the Centre  should prevail over that of the State."

       In M. Karunanidhi (supra) the fact of the matter was  completely different.  Therein the scheme of the two Acts  was not in conflict with each other.  This Court referred to  Colin Howard’s Australian Federal Constitutional Law, 2nd  Edition, Hume Vs. Palmer, 38 CLR 441 (Aus), Zaverbhai  Amaidas (supra), Tika Ramji (supra), Deep Chand (supra) and  State of Orissa Vs. M.A. Tulloch & Co. [(1964) 4 SCR 461]  opining:

""1. That in order to decide the  question of repugnancy it must be shown  that the two enactments contain  inconsistent and irreconcilable  provisions so that they cannot stand  together or operate in the same field. 2. That there can be no repeal by  implication unless the inconsistency  appears on the face of the two statutes. 3. That where the two statutes occupy a  particular field, but there is room or  possibility of both the statutes  operating in the same field without  coming into collision with each other,  no repugnancy results. 4. That where there is no  inconsistency but a statute occupying  the same field seeks to create  distinct and separate offences, no  question of repugnancy arises and both  the statutes continue to operate in  the same field."

       The judgments of this Court clearly lay down the law to  the effect that if two Acts produce two different legal  results, a conflict will arise.   

       The State Act lays down a complete exhaustive code.  It  covers the same subject-matter as contained in Sections 25K  and 25O of the Central Act.  Both the State Act and the  Central Act contain penal provisions.  If the procedures  laid down in the Central Act are not applicable, a person  need not comply the provisions therein keeping in view the  fact that its industrial establishment is covered by the  State Act in terms whereof the applicability of the relevant  provisions would be attracted only when the establishment  employees more than 300 persons.

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       In Tika Ramji (supra), the question which arose for  consideration was as to whether there existed a repugnancy  between the U.P. Sugarcane (Regulation of Supply and  Purchase) Act 1953 which was enacted in terms of Entry 33 of  List III of the Seventh Schedule of the Constitution and the  notifications issued thereunder vis-‘-vis the Industries  (Development and Regulation) Act, 1951.  The Court referred  to Nicholas’s Australian Constitution, 2nd Ed. Page 303,  which reads thus :

"(1) There may be inconsistency in the  actual terms of the competing statutes (R.  V. Brisbane Licensing Court, (1920 28 CLR  23). (2)     Though there may be no direct conflict,  a State law may be inoperative because  the Common-wealth law, or the award of  the Commonwealth Court, is intended to  be a complete exhaustive code (Clyde  Engineering Co. Ltd. V. Cowburn, (1926)  37 C.L.R. 466). (3)     Even in the absence of intention, a  conflict may arise when both State and  Commonwealth seek to exercise their  powers over the same subject matter  (Victoria v. Commonwealth, (1937) 58  C.L.R. 618; Wenn V. Attorney-General  (Vict.), (1948) 77 C.L.R. 84). Isaacs, J. In Clyde Engineering Company,  Limited V. Cowburn laid down one test of  inconsistency as conclusive : "If,  however, a competent legislature  expressly or implicitly evinces its  intention to cover the whole field, that  is a conclusive test of inconsistency  where another Legislature assumes to  enter to any extent upon the same  field"."

       In a case, thus, where both the State Act and the  Central Act have been enacted in terms of List III of the  Seventh Schedule of the Constitution of India, the question  of repugnancy as envisaged under Article 254 would arise.   In that type of cases, it is well-settled that in absence of  Presidential Assent, the Parliamentary Act would prevail and  where the assent has been received, the State Act would.   (See also M.P.A.I.T. Permit Owners Assn. & Anr. Vs. State of  Madhya Pradesh [2003 (10) SCALE 380])

The question again came up for consideration before a  Constitution Bench of this Court in ITC Ltd. vs.  Agricultural Produce Market Committee and Others [(2002) 9  SCC 232].  The majority applied Tika Ramji (supra) having  regard to both the positive test and negative test evolved  therein.  One of us (Sabharwal,J.) proceeded to uphold the  market fee levied on tobacco on the basis that Parliament  was not competent to pass legislation in respect of sale of  agricultural produce of tobacco covered by Entry 52 of the  Union List under which the Parliament can legislate only in  respect of the industries, namely, "the process of  manufacture or production".  It was held that the activity  regarding sale of raw tobacco as provided in the Tobacco  Board Act would not be regarded as "industry".

       Ruma Pal, J. in her concurring judgment observed :

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"To sum up: the word ’Industry’ for the  purposes of Entry 52 of List I has been  firmly confined by Tika Ramji to the  process of manufacture or production  only. Subsequent decisions including  those of other Constitution Benches have  re-affirmed that Tika Ramji case  authoritatively defined the word  ’industry’ - to mean the process of  manufacture or production and that it  does not include the raw materials used  in the industry or the distribution of  the products of the industry. Given the  constitutional framework, and the weight  of judicial authority it is not possible  to accept an argument canvassing a wider  meaning of the word ’industry’. Whatever  the word may mean in any other context,  it must be understood in the  Constitutional context as meaning  ’manufacture or production’."

       Pattnaik, J., however, for himself and Bharucha, J. (as  the learned Chief Justices then were) observed:                  "In view of the aforesaid rules of  interpretation as well as the  Constitution Bench decision referred to  above, it is difficult for us to accept  the contention of Mr. Dwivedi that the  word "industry" in Entry 52 of List I  should be given a restricted meaning, so  as to exclude from its purview the  subject of legislation coming within  entry 27 or Entry 14 of List II. Bearing  in mind the constitutional scheme of  supremacy of Parliament, the normal rule  of interpretation of an Entry in any of  the lists in the Seventh Schedule of the  Constitution, the object of taking over  the control of the tobacco industry by  the Parliament, on making a declaration  as required under Entry 52 of List I and  on examining the different provisions of  the Tobacco Board Act, we see no  justification for giving a restricted  meaning to the expression "industry’ in  Entry 52 of List I, nor do we find any  justification in the contention of the  counsel appearing for the States and  also different Market Committees that  the provisions contained in Tobacco  Board Act dealing with the growing of  tobacco as well as making provisions for  sale and purchase of tobacco, must be  held to be beyond the legislative  competence of Parliament, as it does not  come within the so-called narrow meaning  of the expression "industry" on the  ground that otherwise it would denude  the State Legislature of its power to  make law dealing with markets under  Entry 28, dealing with agriculture under  Entry 14 and dealing with goods under

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Entry 27 of List II. Such an approach of  interpretation in our considered opinion  would be against the very scheme of the  constitution and supremacy of   Parliament and such an approach towards  interpreting the power sharing devices  in relation to entries in List I and  List II would be against the thrust  towards centralisation. In our  considered opinion, therefore, the word  "industry’ in Entry 52 of List I should  not be given any restricted meaning and  should be interpreted in a manner so as  to enable the Parliament to make law in  relation to the subject mater which is  declared and whose control has been  taken over to bring within its sweep any  ancillary matter, which can be said to  be reasonably included within the power  and which may be incidental to the  subject of legislation,so that   Parliament would be able to make an  effective law. So constructed and on  examining different provisions of the  Tobacco Board Act, we do not find any  lack of legislative competence with   Parliament so as to enact any of the  provisions contained in the said Act,  the Act in question having been enacted  by Parliament on a declaration being  made of taking over of the control of  the Tobacco industry by the Union and  the Act being intended for the  development of the said industry.          

       Keeping in view the constitutional scheme vis-‘-vis the  Central Act and the State Act, we are of the opinion that  there exists a conflict and, thus, Article 254 of the  Constitution would be attracted.   

Date of Coming into Force of the Central Act \026 Is it  material?

       The phraseology used in Article 254 of the Constitution  of India is clear and unambiguous.  It does not contemplate  coming into effect of a law having regard to the nature of  the legislation as a conditional one.  It in no uncertain  terms states that the conflict is required to be found out  keeping in view a law which has already been made.  The  makers of the Constitution deliberately and consciously used  past tense.  It has, thus, to be given its ordinary meaning.

       So far as the decisions of this Court in Rishikesh  (supra) and M.P. Shikshak Congress (supra) are concerned,  suffice it to state that in the former a question did arise  as to the applicability of the Central law vis-‘-vis the  State amendment which was answered saying:

"17... The emphasis as rightly stressed  by Shri Parag is "any amendment to CPC  made by the State Legislature or a  provision by the High Court" before the  ’commencement’ of this Act stood

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repealed. It is to be noted here that  the Central Act is an Amending Act, not  a repealing and consolidating statute to  supplant the principal Act, namely, Act  5 of 1908. Since CPC is a concurrent  subject, Parliament and the Legislature  of State or a High Court in respect of  orders in the Schedule are competent to  enact or amend CPC respectively. In fact  several local amendments made to CPC  before the commencement of the Central  Act do exist. Pursuant to the  recommendation made by the Law  Commission of India to shorten the  litigation, Parliament made the Central  Act to streamline the procedure. It is  true that inconsistency in the operation  of the Central and the State law would  generally arise only after the  respective Acts commenced their  operation. Section 3(13) of the General  Clauses Act defines ’commencement’ to  mean the day on which the Act or  Regulation comes into force. The  Founding Fathers were cognizant to the  distinction between making the law and  commencement of the operation of the Act  or Regulation. Article 254, clauses (1)  and (2) and in a way Section 97 of the  Central Act are also alive to the  distinction between making the law and  commencement of the law. In Collins  English Dictionary, at p. 889 ’make’ is  defined to mean, to "cause to exist",  "to bring about" or "to produce". In  Black’s Law Dictionary, 6th Edn. at p.  955, ’make’ is defined as "to cause to  exist... to do in form of law; to  perform with due formalities; to execute  in legal form;...". The verb ’made’ in  Article 254 brings out the  constitutional emanation that it is the  making of the law by the respective  constituent legislatures, namely,  Parliament and the State Legislature as  decisive factor. Commencement of the Act  is distinct from making the law. As soon  as assent is given by the President to  the law passed by Parliament it becomes  law. Commencement of the Act may be  expressed in the Act itself, namely,  from the moment the assent was given by  the President and published in the  Gazette, it becomes operative. The  operation may be postponed giving power  to the executive or delegated  legislation to bring the Act into force  at a particular time unless otherwise  provided. The Central Act came into  operation on the date it received the  assent of the President and shall be  published in the Gazette and immediately  on the expiration of the day preceding  its commencement it became operative.  Therefore, from midnight on the day on

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which the Central Act was published in  the Gazette of India, it became the law.  Admittedly, the Central Act was assented  to by the President on 9-9-1976 and was  published in the Gazette of India on 10- 9-1976. This would be clear when we see  the legislative procedure envisaged in  Articles 107 to 109 and assent of the  President under Article 111 which says  that when a Bill has been passed by the  House of the People, it shall be  presented to the President and the  President shall either give his assent  to the Bill or withhold his assent  therefrom. The proviso is not material  for the purpose of this case. Once the  President gives assent it becomes law  and becomes effective when it is  published in the Gazette. The making of  the law is thus complete unless it is  amended in accordance with the procedure  prescribed in Articles 107 to 109 of the  Constitution. Equally is the procedure  of the State Legislature. Inconsistency  or incompatibility in the law on  concurrent subject, by operation of  Article 254, clauses (1) and (2) does  not depend upon the commencement of the  respective Acts made by Parliament and  the State Legislature. Therefore, the  emphasis on commencement of the Act and  inconsistency in the operation  thereafter does not become relevant when  its voidness is required to be decided  on the anvil of Article 254(1).  Moreover, the legislative business of  making law entailing with valuable  public time and enormous expenditure  would not be made to depend on the  volition of the executive to notify the  commencement of the Act. Incompatibility  or repugnancy would be apparent when the  effect of the operation is visualised by  comparative study."

       It was further held:

"18...The legislative business done by  the appropriate State Legislature cannot  be reduced to redundancy by the  executive inaction or choice by the  Central Government by issuing different  dates for the commencement of different  provisions of the Central Act. The  Constitution, therefore, made a clear  demarcation between making the law and  commencement of the law which,  therefore, bears relevance for giving  effect to Article 254."

       It was, therefore, a case where having regard to the  authority delegated to the executive the Act was to come  into effect at a later date.   

       In M.P. Shikshak Congress (supra), on the other hand,

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the Central Act had no application in relation to  educational institution whereas the State Act did.  Only by  reason of a legislative action, the Act was extended to  educational institutions and, thus, evidently, the question  of repugnancy arose and not prior thereto upon the  provisions of the Act being extended to a  thitherto  uncovered field.  In M.P. Shikshak Congress (supra), the  matter involved application of law whereas in Rishikesh  (supra) the question was enforcement of an Act.  Both  situations stand on different footings.

       Keeping in view the plain language used in Article  254(2) of the Constitution of India we are of the opinion  that the State Act in the fact and circumstance of this  case, keeping in view the Presidential Assent given thereto  shall prevail over the Central Act.

Kaiser-I-Hind:

       It is true that this Court held that with a view to  giving meaningful assent by the President, placing the  matter before the President reserving for his consideration  bring to his notice purported conflict is not an empty  formality.  Shah, J. speaking for the majority observed:

"20. It is true that President’s assent  as notified in the Act nowhere mentions  that assent was obtained qua repugnancy  between the State legislation and  specified certain law or laws of the  Parliament. But from this, it also  cannot be inferred that as the President  has given assent, all earlier law/laws  on the subject would not prevail in the  State. As discussed above before grant  of the assent, consideration of the  reasons for having such law is necessary  and the consideration would mean  consideration of the proposal made by  the State for the law enacted despite it  being repugnant to the earlier law made  by the Parliament on the same subject.  If the proposal made by the State is  limited qua the repugnancy of the State  law and law or laws specified in the  said proposal, then it cannot be said  that the assent was granted qua the  repugnancy between the State law and  other laws for which no assent was  sought for. Take for illustration that a  particular provision, namely, Section 3  of the State law is repugnant to  enactment ’A’ made by Parliament; other  provision namely Section 4 is repugnant  to some provisions of enactment ’B’ made  by Parliament and Sections 5 and 6 are  repugnant to some provisions of  enactment ’C’ and the State submits  proposal seeking ’assent’ mentioning  repugnancy between the State law and  provisions of enactments ’A’ and ’B’  without mentioning anything with regard  to enactment ’C’. In this set of  circumstances, if the assent of the

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President is obtained, the State law  with regard to enactments ’A’ and ’B’  would prevail but with regard to ’C’,  there is no proposal and hence there is  no ’consideration’ or ’assent’. Proposal  by the State pointing out repugnancy  between the State law and of the law  enacted by the Parliament is a sine qua  non for ’consideration’ and ’assent’. If  there is no proposal, no question of  ’consideration’ or ’assent’ arises. For  finding out whether ’assent’ given by  the President is restricted or  unrestricted, the letter written or the  proposal made by the State Government  for obtaining ’assent’ is required to be  looked into."  

       The question, however, is to be considered having  regard to the fact situation obtaining herein.  The conflict  between the Central Act and the State Act was apparent.  The  State of Uttar Pradesh inserted Section 6V by Act No. 26 of  1983 being conscious of the fact that an Act had been passed  to the contrary by the Parliament in terms of Act No. 46 of  1982.  So long Chapter V-B was applicable to an industrial  establishment engaging 300 or more persons, the State did  not insert any provision and allowed the Parliament to  occupy the field relating to layoff, retrenchment and  closure of industrial undertakings.  Only when the number of  workmen having regard to the legislative policy as would  appear from the Statements of Objects and Reasons was  brought down to 100 from 300 for the purpose of  applicability of Chapter V-B of the Central Act, the  amendment was brought in by the State.  The provisions  contained in Section 6V by reason of the 1983 Amendment by  the Legislature of the State of Uttar Pradesh must have made  consciously in relation whereto only the legislation was  reserved for the Presidential Assent.  If the contention of  the appellant was that the assent of the President was  obtained without clearly informing him the purpose for which  the same was sought for, it was necessary for them to raise  such a plea in this behalf in the writ petition.  Not only  such a plea had not been raised in the writ petition or  before the High Court, no such plea has been raised even in  the Special Leave Petition.  We agree with Mr. Jayant  Bhushan that in such a situation, the appellant should not  be permitted to raise the said question.  We would,  therefore, proceed on the presumption that the State amended  the Act having regard to the provisions of the Central Act  and the Presidential Assent was sought for only on account  thereof.   

       Section 114 (e) of the Indian Evidence Act raises a  presumption that all official acts must have been performed  regularly.  Section 114(f) of the said Act raises a  presumption that the common course of business has been  followed in particular cases.  The said presumptions,  therefore, would apply in this case also.  In any event, we  do not find any reason to allow the appellant to raise the  said plea before this Court for the first time.

EFFECT OF NON-OBSTANTE CLAUSE:

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       The contention of Mr. Banerjee to the effect that  Section 25J of the Central Act has been incorporated by  reference in Section 25S cannot be accepted.  Section 25S  does not introduce a non-obstante clause as regard Chapter  V-A.  Furthermore, Section 25J is not a part of Chapter V-B.   By reason of Section 25S, the provisions of Chapter V-A were  made applicable only in relation to certain establishments  referred to in Chapter V-B.  The Parliament has deliberately  used the words "so far as may be" which would also  indicate that provisions of Chapter V-B were to apply to the  industrial establishments mentioned in Chapter V-A.  The  non-obstante clause contained in Section 25J does not apply  to the entire Chapter V-B.  Applicability of Chapter V-A in  relation to the industrial establishments covered by Chapter  V-B in terms of Section 25J vis-‘-vis Section 25S is  permissible but the contention cannot be taken any further  so as to make Section 25O of the Central Act prevail over  the State Act by taking recourse to the non-obstante clause.   Non-obstante clause contained in Section 25J is, thus,  required to be kept confined to Chapter V-A only and in that  view of the matter we have no hesitation in holding that  Chapter V-B does not have an overriding effect over the  State Act.   

       In any event, such a question could have arisen for  consideration if the Central Act and the State Act had been  enacted in terms of different entries of List I and List II  of the Seventh Schedule of the Constitution of India.  In  this case, admittedly both the Central Act and the State Act  had been enacted in terms of Entry 22 of List III of the  Seventh Schedule of Constitution of India.  In case of any  conflict therefor the constitutional scheme contained in  Article 254 will have to be applied.  Even if Section 25S of  the State Act is read to have an overriding effect,  undoubtedly the provisions of the supreme lax shall prevail  over a statute.  A non-obstante clause contained in a  statute cannot override the provisions of the Constitution  of India.   

CONCLUSION:         For the foregoing reasons, we are of the opinion that  there is no merit in these appeals which are accordingly  dismissed. No costs.