Criminal Appeal No.642 of 1996

30th October, 2003

Petitioner Counsel: RAJESH MAHALE
Respondent Counsel: MOULLICK NANAVATI, Ms. SADHNA SANDHU, Ms. HEMANTIKA WAHI

Cases Cited:
Bihar State Road Transport Corporation Vs. Orang Bahadur, AIR 1968 Pat 200 [Para 2]
Amarnathsingh Vs. Presiding Officer, Industrial Tribunal, Bihar, AIR 1970 Pat 269 (FB) [Para 2]
Corporation of the City of Nagpur Vs. M/s. Inland Carriers, Nagpur, 1987 Lab LJ 270 [Para 2]
Municipal Council, Palai Vs. T. J. Joseph, AIR 1963 SC 1561 [Para 6]
Northern India Caterers (Private) Ltd. Vs. State of Punjab, AIR 1967 SC 1581 [Para 6]
Municipal Corporation of Delhi Vs. Shiv Shanker, 1971(1) SCC 442 [Para 6]
Ratan Lal Adukia Vs. Union of India, AIR 1990 SC 104 [Para 6]
Garnett Vs. Bradley, 1878 3 AC 944 (HL) [Para 6]
A. G. Vs. Moore, (1878)3 Ex D 276 [Para 6]
R. S. Raghunath Vs. State of Karnataka, AIR 1992 SC 81 [Para 6]
Pt. Rishikesh Vs. Salma Begum (Smt.), 1995(4) SCC 718 [Para 7]
Shri. A. B. Krishna Vs. State of Karnataka, 1998(1) JT (SC) 613 [Para 7]
State of M.P. Vs. Kedia Leather and Liquor Ltd., 2003(6) Supreme 213 [Para 8]

JUDGMENT

ARIJIT PASAYAT, J.:- By the impugned judgment, the Gujarat High Court held that notwithstanding enactment of the Motor Transport Workers Act, 1961 (for short "the Act") the obligation to comply with the requirement of the Bombay Shops and Establishments Act, 1948 (for short 'the Establishments Act') did not get wiped out.

2. Though the fine that was imposed on the appellant is not very much in terms of money, the appellant contended that the problem is of recurring nature and, therefore, the issues should be settled. It was contended that there was divergence in views of several High Courts. The Patna High Court in Bihar State Road Transport Corporation Vs. Orang Bahadur (AIR 1968 Pat. page 200) and Amarnathsingh Vs. Presiding Officer, Industrial Tribunal, Bihar (AIR 1970 Pat page 269 (FB)) held that the enactment of Act did away with the requirement to comply with requirements of Establishments Act by applying logic of implied repeal. The Bombay High Court also held likewise in the, Corporation of the City of Nagpur through Shop Inspector Vs. M/s. Inland Carriers, Nagpur and another (1987 Lab LJ 270). But a different view was adopted by the Gujarat High Court in the impugned judgment which differed from the view of Patna High Court and Bombay High Court.

3. In support of the appeal, learned counsel for the appellant submitted that there must be a definite legislative intent that two statutes should operate in respect of identical issues. The Establishments Act has been rendered repugnant by enactment of the Act. Reference is made to Section 37 of the Act to submit that by necessary implication there was repeal of the Establishments Act. Both these statutes fall under Entry 24 of List III (the Concurrent List) of VII Schedule to the Constitution of India, 1950 (in short the 'Constitution') and, therefore, it is but natural to presume that there was a repeal by implication.

4. Per contra, learned counsel for the State, submitted that the two statutes in question operate in different fields and there is no question of any repugnancy as was rightly held by the High Court.

5. The submissions require careful consideration.

6. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. (See : Municipal Council, Palai through the Commissioner of Municipal Council, Palai Vs. T. J. Joseph (AIR 1963 SC 1561), Northern India Caterers (Private) Ltd. and another Vs. State of Punjab and another (AIR 1967 SC 1581), Municipal Corporation of Delhi Vs. Shiv Shanker (1971 (1) SCC 442) and Ratan Lal Adukia and another Vs. Union of India (AIR 1990 SC 104)). When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strenghtened on the principle expressio unius (persone vel rei) est exclusio alterius (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett Vs. Bradley, (1878) SAC 944 (HL). The continuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. Vs. Moore (1878) 3 Ex D 276, Ratanlal's case (supra) and R. S. Raghunath Vs. State of Karnataka and another (AIR 1992 SC 81)).

7. The necessary questions to be asked are :

(1) Whether there is direct conflict between the two provisions

(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;

(3) Whether the two laws occupy the same field.

(See Pt. Rishikesh and Am Vs. Salma Begum (Smt.) (1995(4) SCC 718) and Shri. A. B. Krishna & Ors. Vs. The State of Karnataka & Ors. (1998(1) JT (SC) 613).

8. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the Court applies the doctrine, it does no more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together". (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re : Berrey, (1936) Ch 274). To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The areas of operation of the Act and the Establishments Act in question are different with wholly different aims and objects. They operate in their respective fields and there is no impediment for their existence side by side. (See State of M.P. Vs. Kedia Leather and Liquor Ltd. and Ors., 2003(6) Supreme 213).

9. It is to be noted that there is no direct conflict between any of the provisions of the two statutes. The determinative test as noted above is whether the enactments are sharply conflicting or are inconsistent and/or repugnant. In the instant case it is not so. The operation of the Act is not restricted in its area of operation by what is provided in the Establishments Act and vice versa. Absence of some provisions in another Act does not amount to conflicting provision or inconsistent provision amounting to repugnancy of such provision.

10. If both Acts are made applicable it will serve workmen the best as the benefits which are not made available to them in the Central Act i.e. the Act are made available to them in the State Act i.e. the Establishments Act and the benefits which are not made available to them in the State Act are made available in the Central Act. By repeal of one, the benefits under the repealed Act stand withdrawn and such benefits are not provided in the existing Act. The workmen by applying logic of implied repeal will be deprived of such benefits. Both the Acts are enacted for the benefit and well being of workmen, and it would be appalling to comprehend a situation that withdrawal of benefit by enacting a statute was contemplated.

11. On a careful scrutiny of the provisions contained in both the above Acts, we find that the Act makes some specific provisions on certain aspects and areas of relationship between worker and management. It is not only silent but also does not advert to or deal with several other vital and crucial aspects of such relationship as are dealt with by the Establishments Act. The responsibilities and obligations of the management under both Acts cannot be avoided altogether and it is only where on any particular aspect or stipulation, the prescription is found to overlap - to that extent and in respect of any such matter alone the Act, pertaining to motor transport workers will apply to the exclusion of a contra stipulation in the Establishments Act and consequently, the Establishments Act as a whole cannot be held to have been abrogated by the Act. In substance, if at all, it can only at best be claimed that the operation of the law as contained in the Establishments Act would stand curtailed, if on any particular aspect there is a contra stipulation or provision in the Act in respect of a Motor Transport worker, and not otherwise. This would be the proper, reasonable and inevitable consequence of a harmonious construction of the provisions of the two welfare legislations, so that the best of the both would be available to the worker concerned. The view taken by the Patna High Court and the Bombay High Court in the decisions noted supra, does not lay down the correct position of law while the one taken by the Gujarat High Court in the impugned judgment, merits approval in our hands.

12. Above being the position, the judgment of the High Court does not suffer from any infirmity to warrant interference. The appeal fails and is dismissed.

Appeal dismissed.