WP/3973/2004 of GENERAL MANAGER, L and T LTD. Vs STATE OF CHHATTISGARH and ORS. on 16 December 2010

ORDER

(Passed onI^''December, 2010)

The following order ofthe Court was passed by Dhirendra Mishra, J.

1. The aforesaid writ petitions are being disposed of by this common orderas in both these petitions question of law and facts are same.as in both these petitions question of law and facts are same.

2. In Writ Petition No.3973/2004, the petitioner has prayed for quashing theorder of reference dated 1 1-11-2003 (Annexure-P/1) whereby the State ofChhattisgarh in exercise of powers under Section 51 of the ChhattisgarhIndustrial Relations Act, 1960 (No.27 of 1960) (hereinafter referred to as'the Act of 1960') has referred the dispute between the petitioner andrespondent No.4 mentioned in the schedule for arbitration to the IndustrialCourt, Raipur and has also prayed for quashing of the proceedings beforethe Industrial Court pn the basis of above reference, whereas in WritPetitionNo.3333/2005,thepetitioner,an association of the cementmanufacturer,hasprayedfordeclaringtheactionoftheStateGovernment whereby the cement industry has been covered under theAct of 1960, as ultra vires and direction to the State to delete the cementindustry from the notification dated 31st December, 1960.It has beenfurther prayed that all legal proceedings arising out of reference underSection 51 of the Act of 1960 pending in any Court including the LabourCourt, Industrial Court of the Chhattisgarti be declared ultra vires andaccordingly, be dropped.

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^"y. Briefly stated facts of the case are that respondent No.4 raised a disputein respect of the employees of the contraetor engaged by the petitionercompany. On failure of conciliation proceeding, respondent No.1 referredthe dispute for adjudication under Section 51 (1) of the Act of 1960 to theIndustrial Court,Raipur.A preliminary objection was raised by thepetitioner before the Industrial Court with respect to the maintainability ofreference at the instance of State Government on various grounds.However, the same has been rejected vide order dated 5-10-2002 withcost of Rs.2,000/- to be payable to respondent No.4 with a finding thatnone of the objections raised by the petitioner can be decided aspreliminary objection.The petitioner may take these objectionsinstatement of claim and the same shall be decided along'with other issueson merits and the petitioner has been finally allowed last chance to filestatement of claim.

SUBMISSIONS BY SHRI GURU KRISHNA KUMAR. ADVOCATE

4. The arguments advanced by learned counsel for the petitioners can besummarized as under:-

The cement industry is a controlled industry as declaredunder Section 2 of the Industries (Development andRegulation) Act,1951(for short 'the IDR Act').TheCentral Government has exercised control over workingof the cement industries,as wouldbe evident fromvariousWageBoardsettlementsasalsofromthereferences made under Section 10-A of the IndustrialDispute Act, 1947 (for short 'the ID Act') for settlement ofthe dispute between the workmen and the employers(Annexure-P/9 in W.P. No.3333/05).under Section 2 of the Industries (Development andRegulation) Act,1951(for short 'the IDR Act').TheCentral Government has exercised control over workingof the cement industries,as wouldbe evident fromvariousWageBoardsettlementsasalsofromthereferences made under Section 10-A of the IndustrialDispute Act, 1947 (for short 'the ID Act') for settlement ofthe dispute between the workmen and the employers(Annexure-P/9 in W.P. No.3333/05).> NotificationunderSection1 (3) ^ oftheChhattisgarhIndustrial Relations Act (for shorfe 'CGIR Act') includingcement industryis • ultravires,as thecementisacontrolled industry.The power of the State Legislaturewould be curtailed to the extent the field is occupied bythe central enactment in respect of industries under Entry52 of list I.The power of the State Legislature to dealwith industries under Entry 24 of List II is subject to theprovisions of Entries No.7 and 52 of List I.Industrial Relations Act (for shorfe 'CGIR Act') includingcement industryis • ultravires,as thecementisacontrolled industry.The power of the State Legislaturewould be curtailed to the extent the field is occupied bythe central enactment in respect of industries under Entry52 of list I.The power of the State Legislature to dealwith industries under Entry 24 of List II is subject to theprovisions of Entries No.7 and 52 of List I.

Even if the enactment of CGIR Act is traced to Entry 22 oflist III, the inclusion ofcement industry is unconstitutional,as the Central Government has^ occupied the field[in]respect of regulation of labour/ industrial disputes in thelist III, the inclusion ofcement industry is unconstitutional,as the Central Government has^ occupied the field[in]respect of regulation of labour/ industrial disputes in the cement industry vide notification dated)8-11-1977 issuedunder Section 2(a)(i) of the ID Act (Annexure-P/3 in W.P.No.3333/05).

By virtue of the said notificatiQn, the Central Governmentis the proper Government for cement industry under theIDAct under Section 2 (ee) of the ID Act and thus, onlythe Central Government can make reference of industrialdispute in the cement industry under Section 10 of the IDAct.Afterthenotificationdated8-11-1977,thePresidential Assent obtained in thelyear 1960 to theCGIR Act wouldnotbeapplicable for thecementindustry, as the notification reserves right to deal withindustrial/labour dispute in respect of cement industry tothe Central Government and the State Legislature cannotdeal with the labuor/industrial dispute in the cementindustry.is the proper Government for cement industry under theIDAct under Section 2 (ee) of the ID Act and thus, onlythe Central Government can make reference of industrialdispute in the cement industry under Section 10 of the IDAct.Afterthenotificationdated8-11-1977,thePresidential Assent obtained in thelyear 1960 to theCGIR Act wouldnotbeapplicable for thecementindustry, as the notification reserves right to deal withindustrial/labour dispute in respect of cement industry tothe Central Government and the State Legislature cannotdeal with the labuor/industrial dispute in the cementindustry.

Delegation of powers to the State Qovernment underSection 39 of the ID Act vide notification dated 8-12-1977does not confer the State Government with the authorityto deal with the industrial dispute concerning the cementindustry independently. The State Government can referany suchindustrialdispute for adjudicationonly asdelegateeoftheCentralGovernment.Thustheprovisionsof theCGIR ActemppweringtheStateGovernment to deal with industrial dispute concerning thecement industry is ultra vires.Reliarice is placed in thematterof UltratechCementLimitedVs.SrinivasNarayan Rao Moharil .Section 39 of the ID Act vide notification dated 8-12-1977does not confer the State Government with the authorityto deal with the industrial dispute concerning the cementindustry independently. The State Government can referany suchindustrialdispute for adjudicationonly asdelegateeoftheCentralGovernment.Thustheprovisionsof theCGIR ActemppweringtheStateGovernment to deal with industrial dispute concerning thecement industry is ultra vires.Reliarice is placed in thematterof UltratechCementLimitedVs.SrinivasNarayan Rao Moharil .

Thedelegationundernotification i dated8-12-1977(Annexure-P/6 in W.P. No.3973/04) is subject to theconditions that the Central Government continues toexercise all the under this Act and the rules powers(Annexure-P/6 in W.P. No.3973/04) is subject to theconditions that the Central Government continues toexercise all the under this Act and the rules powersrelating to mines and quarries which form part of thecement industry and relating to the dispute between theemployerswhoaremembers^ oftheCementManufacturers Association, Bombay and their workmen.cement industry and relating to the dispute between theemployerswhoaremembers^ oftheCementManufacturers Association, Bombay and their workmen.> By the impugned reference, the issue of abolition ofcontract labour pursuant to award made in referenceunder Section 10-A ofthe ID Act has been referred by theState Government to the Tribunal.The subject is withinthe exclusive authority of the Central Government and theState Government has no to ideal with the same powercontract labour pursuant to award made in referenceunder Section 10-A ofthe ID Act has been referred by theState Government to the Tribunal.The subject is withinthe exclusive authority of the Central Government and theState Government has no to ideal with the same powereven under the notification dated 8-12-1977.The Unionof India in its counter affidavit has taken a categoricalstand that the petitioners' case is legal 'and proper whichclearly shows that the Central Government is the properGovernment for cement industry. The notification underCGIR act was issuedon31st December,1960i.e.of India in its counter affidavit has taken a categoricalstand that the petitioners' case is legal 'and proper whichclearly shows that the Central Government is the properGovernment for cement industry. The notification underCGIR act was issuedon31st December,1960i.e.

subsequent to 17-11-1960 when the Rresidential assentwas given to CGIR Act.

SUBMISSIONS BY SHRI N.K. VYAS. ADVOCATE

5. Though it is correct that mere declaration of controlled industry under theIDR Act would not be enough to attract the application of Section 2 (a)(i)ofthe ID Act unless the Central Government specifies that for the purposeof Section 2(a)(i), the Central Government is the appropriate Government.In the instant case, the Central Government vide notification dated 8-11-1977 (Annexure-P/3) has notified itself as appropriate Government in theindustry engaged in production of cement.Vide notification dated 8-12-1977 the Central Government has delegated its powers under Section 39of the ID Act to the State Government to exercise all powers under theAct.The Central Government being the apprbpriate Government underSection 2(a)(i) of the Act and the State Government being its delegate, theState Government cannot be hetd to be an appropriate Government inrelation tocement industry as per the definition under Section 2 (a)(i) ofthe ID Act and as such, the State Government had no competence toissue a notification under Section 51 ofthe Actbf 1960 or Section 10(1) ofthe ID Act.[IDR Act would not be enough to attract the application of Section 2 (a)(i)ofthe ID Act unless the Central Government specifies that for the purposeof Section 2(a)(i), the Central Government is the appropriate Government.In the instant case, the Central Government vide notification dated 8-11-1977 (Annexure-P/3) has notified itself as appropriate Government in theindustry engaged in production of cement.Vide notification dated 8-12-1977 the Central Government has delegated its powers under Section 39of the ID Act to the State Government to exercise all powers under theAct.The Central Government being the apprbpriate Government underSection 2(a)(i) of the Act and the State Government being its delegate, theState Government cannot be hetd to be an appropriate Government inrelation tocement industry as per the definition under Section 2 (a)(i) ofthe ID Act and as such, the State Government had no competence toissue a notification under Section 51 ofthe Actbf 1960 or Section 10(1) ofthe ID Act.[

TheCentralGovernmenthasbeenconsistentlyexercisingjurisdictionovercementindustry,aswouldbeevidentfromtheconstitution of the Wage Board by various resQlutions. The Union of Indiain its counter affidavit has also taken a categorieal stand that the State hasno competence to issue such notification under the Act of 1960, as afterissuance of notificationinrespect of cemgntindustry,theCentralGovernment became appropriate Government.SUBMISSIONS BY SMT. FOUZIA MIRZA. ASSISTANT SOLICITORGENERAL FOR UOI

6. Supporting the case of the petitioners, it was argued that the CentralGovernment vide notification dated 8-11-1977jhas specified the industryengagedin manufacture/production of cem^nt- as controlled industryunder Section 2 of the ID Act, 1947 and the power has been delegated tothe State under Section 39 of the ID Act vide notification dated 8-12-1977,Government vide notification dated 8-11-1977jhas specified the industryengagedin manufacture/production of cem^nt- as controlled industryunder Section 2 of the ID Act, 1947 and the power has been delegated tothe State under Section 39 of the ID Act vide notification dated 8-12-1977, however, delegation is subject to condition that the Central Governmentshall continue to exercise powers under the ID Act.In the light of theabove notification, cement industry deserves to be deleted from the list ofIndustry mentioned in Schedule of the Act of "1960.

SUBMISSIONS BY SHRI KISHORE BHADURI. ADDITIONALADVOCATE GENERAL

7. The Act of 1960 has been enacted in exercise of powers conferred in Entry22 List III Schedule VII made under Article 246 with an object to developgood relationship between the employer and the employee.It has obtainedassent of the President under Article 254 (2) of the Constitution and thus theState Act being a special act, shall prevail over general law i.e. IndustrialDispute Act and inclusion of cement in Schedule of the Act of1960 is in noway repugnant or contrary to the provisions of the Central Act i.e. IDR Act,1951 and the ID Act, 1947.List 1 and 2 of Schedule VII do not provide forthe field trade unions, industrial and labour dlspute, therefore, reference tothe cement and gypsum products in Entry No.35 of the First Schedule of theIDR Act as industry under the control of Union has no correlation whatsoeverwith the fietd covered at Entry 22 List III ofSSchedule VII.The object ofenacting IDR Act is only for regulating the production and development ofindustry and for consultation with provincial Government in the matters ofpolicies.Thus cement industry is regulated by the Central Government forthe purpose of licencing and development.Section 31 specifically providesthat there shall be no bar for application of other Acts in relation to thescheduled industry.22 List III Schedule VII made under Article 246 with an object to developgood relationship between the employer and the employee.It has obtainedassent of the President under Article 254 (2) of the Constitution and thus theState Act being a special act, shall prevail over general law i.e. IndustrialDispute Act and inclusion of cement in Schedule of the Act of1960 is in noway repugnant or contrary to the provisions of the Central Act i.e. IDR Act,1951 and the ID Act, 1947.List 1 and 2 of Schedule VII do not provide forthe field trade unions, industrial and labour dlspute, therefore, reference tothe cement and gypsum products in Entry No.35 of the First Schedule of theIDR Act as industry under the control of Union has no correlation whatsoeverwith the fietd covered at Entry 22 List III ofSSchedule VII.The object ofenacting IDR Act is only for regulating the production and development ofindustry and for consultation with provincial Government in the matters ofpolicies.Thus cement industry is regulated by the Central Government forthe purpose of licencing and development.Section 31 specifically providesthat there shall be no bar for application of other Acts in relation to thescheduled industry.

Under Section 110 of the Act of 1960, the provisions of the ID Act havebeen made inapplicable to any industry to which the State Act applies exceptChapters V-A, V-B, V-C and other provisions with respect to lay off,retrenchmentcompensation,specialprovisionsrelatingtolayoff,retrenchment or closure in certain establishmehts and unfair labour practices.However, the settlements arrived at under the ID Act in the past have beensaved and it has been further provided that the pending case under the IDAct with respect to any industry to which Act of 1960 is applicable shall bedisposed of in accordance with the provisions of the Central Act. The StateAct has obtained assent of the President under Article 254(2) of the M.

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Constitution and any provision of the Act of 1960 has not been varied orrepealed by any enactment of the Parliament.

The argument that by enacting Contract Labour Abolition Act, 1970(for[short][ 'the][ Act][ of][ 1970')][ the][ Parliament][ has][ expressly][ repealed][ the]applicability of the Act of 1960 with regard to the field of the Contract Labourhas no relevance to the facts of the present case as the Act of 1960 dealsonly with regard to the dispute between the employers and the employeesand under the definition of the workmen as given in Section 2(13) (a), aperson employed by a contractor in execution of the contract with anemployer is also a State employee whereas, the Act of 1970 has beenenacted to regulate employment of contract labour in certain establishmentsand to provide for its abotition in certain circumstances and for connectedmatters.

From bare reading of the provisions of the Act of 1970, it would beevident that it does not provide for settlements of the disputes of theemployees and the employers.

SUBMISSIONS BY SHRI K.R. NAIR. ADVOCATETOR1NTERVENER CEMENT WORKERS UNION

8. The dispute between the employers and the workers is regarding payment ofwages at the rate prescribed by the Cement Wage Board Award 1983 andnon-implementation of certain terms of the award.Since the managementrefused to pay wages at the rate as also refused to implement the provisionsrelating to abolition of the contract labour in all areas of work except the arealike loading, unloading, packing and work of casual nature. The conciliationofficers entered into conciliation, however, when no settlement was arrivedat, failure report was submitted to the State and accordingly, the Statereferred the matter to the Industrial Court for construction and interpretationof settlement or award. Reference was made to paras-225 & 226 of theCement Wage Board Award according to which contract labour system in thecement industry in the country stood abolished from 1960 except in certainareas of work mentioned in the award. The entire endeavour of thepetitionermanagement in taking technical objection firstly fcefore the Industrial Courtand subsequently by filing instant petition is to delay the proceedings beforethe Industrial Court.

Writ Petition No.3973/2004 has been filed against interlocutory orderpassed in pending reference and as such, the same is not maintainable.

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Reiterating the arguments advanced by learned counsel for the State,it was argued that the State Act being a special act would prevail over theprovisions of the ID Act.In the absence pf anylegislation by the Parliament,the provisions contained in Section 51 of the Act of 1960 for referring anydispute between theemployer and the employee in the cement industrywould not become ultra vires. The powers conferred to the Parliament underproviso to Article 254(2) can be exercised by Parliament alone and the samecannot be delegated to any executive authority. The State Government hasmade reference in exercise of powers conferred under the Act of 1960 inrelation to scheduled industry andnot as a delegatee of the CentralGovernment under the ID Act. The contention that the issue is of abolition ofthe contract labour is not correct as the contract labour stood abolished longago and the dispute is only with respect to non-payment of wages at theWage Board rate and non-regularization of the contract labour as per theWage Board Award.

The Act of 1970 operates in entirely different field i.e. in the field ofregulation and abolition of the contract labour whereas the Act of 1960regulates theemployer and the employee's relationship and settlement ofindustrial dispute and there is no repugnancy between provisions of both theacts. The subject matter of the dispute between the petitioner and theworkers of the industry with respect to payment of wages at the rateprescribed[bythe][ CementWage][ Board][ and][ non][ implementation][ ofthe][ award]and the Payment of Wages Act does not make any distinction between thecontract labour and regular employee and the Act of 1970 has no applicationin such situation.

The definition of wages under Section 2 (iia)(vi) of the Payment ofWages Act, 1936 includes any remuneration jpayable under any award orsettlement between the parties and the State Government is the appropriateGovernment under the Payment ofWages Act.

9. We have heard learned counsel for the parties.

10. Thepetitionershavequestionedinclusionofcementindustryinnotification dated 31st December, 1960 in Schedule appended with the Actof 1960 on the ground that by this action cement industry has been takenoutofthefoldoftheCentralGovernmentwhichisappropriateGovernment under Section 2(a) of the ID Act and as such ultra vires.notification dated 31st December, 1960 in Schedule appended with the Actof 1960 on the ground that by this action cement industry has been takenoutofthefoldoftheCentralGovernmentwhichisappropriateGovernment under Section 2(a) of the ID Act and as such ultra vires.

11. It has been vehemently argued that reference] isinvalid inasmuch as theState was not competent to refer the present dispute for adjudicationunder Section 51 of the Act of 1960 as the, cement industry has beenincluded at S. No.35 in the First Schedule of the IDR Act, 1951.State was not competent to refer the present dispute for adjudicationunder Section 51 of the Act of 1960 as the, cement industry has beenincluded at S. No.35 in the First Schedule of the IDR Act, 1951.

l2.The Supreme Court in the matter of Bijay Cotton Mills Ltd., Vs. ItsWorkmen and another , considering the identicalobjection, held that"The fact that textile industry is controlled by the provisions of IndustrialWorkmen and another , considering the identicalobjection, held that"The fact that textile industry is controlled by the provisions of Industrial(Development and Regulation) Act (1951) would not be enough to attracttheapplication of S.2(a)(i).What this latter provision requires is that thespecification must be made by the Central Government by reference to,and for the purpose of, the provisions of the Act in order that the CentralGovernment may itself become the appropriate Government qua suchindustry under S. 2(a) (i)."theapplication of S.2(a)(i).What this latter provision requires is that thespecification must be made by the Central Government by reference to,and for the purpose of, the provisions of the Act in order that the CentralGovernment may itself become the appropriate Government qua suchindustry under S. 2(a) (i)."

13. This view was further reiterated in another judgment of the Supreme Courtin the matter of Management of Vishnu Sugar Mills Ltd. Vs.Workmen3.in the matter of Management of Vishnu Sugar Mills Ltd. Vs.Workmen3.

14. The Act of 1960 was enacted by the State Legislature and it received theassent of the President on 17th November, 1960. This act has beenenacted to regulate the relations of employers and the employees, tomake the provisions for settlement of industrial dispute in the industries towhich the Act is applicable, as is evident from aims and objects of the Act.Under section 110 of the Act of 1960, the provisions of the ID Act havebeen made inapplicable to any industry to which the State Act appliesexcept Chapter V-A, V-B & V-C and other provisions with respect to layoff, retrenchment compensation, special provisions relating to lay off,retrenchment and closure in certain establishments and unfair labourpractices.assent of the President on 17th November, 1960. This act has beenenacted to regulate the relations of employers and the employees, tomake the provisions for settlement of industrial dispute in the industries towhich the Act is applicable, as is evident from aims and objects of the Act.Under section 110 of the Act of 1960, the provisions of the ID Act havebeen made inapplicable to any industry to which the State Act appliesexcept Chapter V-A, V-B & V-C and other provisions with respect to layoff, retrenchment compensation, special provisions relating to lay off,retrenchment and closure in certain establishments and unfair labourpractices.

15. The main arguments advanced by learned 'counsel fbr the petitionersagainst inclusion of cement industry in the list of industry mentioned in theschedule of the Act of 1960is that the CentralGovernment videnotificationdated8-11-1977hasspecifiedtheindustry engagedinagainst inclusion of cement industry in the list of industry mentioned in theschedule of the Act of 1960is that the CentralGovernment videnotificationdated8-11-1977hasspecifiedtheindustry engagedin E^ AIR 1960 Supreme Court 692^ AIR 1960 Supreme Court 692

AIR 1960 Supreme Court 812

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manufacture/production of cement as controlled industry under sub-clause(ii)[of][ clause](a)[of][ Section][ 2][ of][ the][ ID][ Act,][ 1947][ and][ thus][ by][ virtue][ of][ the]above notification and in view of Section 2 (a)(i) of the ID Act, the CentralGovernment become appropriate Government for the cement industry andthe provisions of the Act of 1960 are not applicable to cement industry.The notification dated 8-12-1977 whereby the Central Government inexercise of powers conferred under Section 39 of the ID Act has directedthat the power exercisable by it under that Act and the Rules madethereunder shall, in relation to the cement industry, be exercised also byall the State Governments is only delegation of power under Section 39 ofthe Act and the State Government can refer any such industrial dispute foradjudication only as a delegatee ofthe Central Government.

16. The above two notifications came into consideration before the SupremeCourt in the matter of Shri Yovan, India Cements Employees Union andanother Vs. Management of India Cements Lfd. and others . The Hon'bleSupreme Court, referring both the above notifications in its judgment, heldthat the Central and the State Governments are appropriate Governmentunder the Act and the notification of Tamil Nadu Government under Section10(1)(c) ofthe ID Act, 1947 was held to be valid notification.Court in the matter of Shri Yovan, India Cements Employees Union andanother Vs. Management of India Cements Lfd. and others . The Hon'bleSupreme Court, referring both the above notifications in its judgment, heldthat the Central and the State Governments are appropriate Governmentunder the Act and the notification of Tamil Nadu Government under Section10(1)(c) ofthe ID Act, 1947 was held to be valid notification.

17.1n the matter of Workmen of Bagalkot Udyog Ltd. Vs. Bagalkot UdyogLtd. and others5 {W.A. Nos.3286/1997 combined with W.A. Nos.3444-47/1997, dated20th June, 2000}, the only issue before the Karnataka HighCourt was - whether the State Government can claim to be appropriateGovernment in respect of the cement industry within the meaning of Section2(1 )(a) of the Act of 1970 entitling it to exercise;powers under Section 10 ofthe said Act prohibiting employment of contract labour in the said industry.Referring to above two notifications issued by the Central Government underSection 2(a) of the ID Act, it was held that the State Government cannot beheld to be an appropriate Government in relation to cement industry andquashing of the notification issued by the State Government under Section10(1) of the Act was upheld.;,Ltd. and others5 {W.A. Nos.3286/1997 combined with W.A. Nos.3444-47/1997, dated20th June, 2000}, the only issue before the Karnataka HighCourt was - whether the State Government can claim to be appropriateGovernment in respect of the cement industry within the meaning of Section2(1 )(a) of the Act of 1970 entitling it to exercise;powers under Section 10 ofthe said Act prohibiting employment of contract labour in the said industry.Referring to above two notifications issued by the Central Government underSection 2(a) of the ID Act, it was held that the State Government cannot beheld to be an appropriate Government in relation to cement industry andquashing of the notification issued by the State Government under Section10(1) of the Act was upheld.;, 4 AIR 1994 SUPREME COURT 558 AIR 1994 SUPREME COURT 558

5 2001 LLJ621(Kar) 2001 LLJ621(Kar)

18.1n the matter of Ultra Tech Cement Ltd., >/js. Shrinivas NarayanraoMoharil6, a complaint was filed under the provisions of the MaharashtraRecognition of Trade Unions and Prevention of Unfair Labour Practices Actbefore the Labour Court. The employer filed an application for dismissal ofcomplaint on the ground that the petitioner is a controlled industry ascontemplated under Section 2 (ee) of the ID Act, 1947 and the appropriateGovernment is the Central Government and hence, the provisions of theMlaharashtra Act are not applicable. The petitioner filed a writ petition againstrejection of his application for dismissal.Learned Single Judge of the HighCourt, relying upon the decisjon of the Karnataka High Court in the matter ofBagalkot Udyog Ltd. and others (Supra) and distinguishing the judgment ofthe Supreme Court in Shri Yovan, India Cements Employees Union(Supra) on facts, held that the State Government while acting as appropriateGovernment discharges the role as an agent 6f Central Government andhence for the purpose of Section 2(3), it cannot be said that for cementindustry, State Government is appropriate Govemment and accordingly, thecomplaintinstitutedby therespondentbefore theLabour Court wasdismissed.

19. In the matter of U.P. Electric Supply Co. Ltd. Vs. R.K. Shukla and Anr.Etc., the issue before the Supreme Court was - whether in determiningthe matters relating to the award of retrenchment compensation, theprovisions of the Industrial Disputes Act, 1947 would be applicable or U.P.Industrial Disputes Act, 1947 shall apply.The Hon'ble Supreme Courtobserved that legislation in respect of Trade Unions, Industrial and LabourDisputes falls within Entry 22 of the Concurrent List and both the Stateand the Union are competent to legislate in respect of that field oflegislation. Since the relevant provisions of the two Acts on the matter incontroversy in these groups of appeal are not materially different and aresubstantially the same, the question is acadeinic and by virtue of Section6-R(2), the provisions of the U.P. Industrial Disputes Act prima facie applyin the matters of lay-off and retrenchment.

6 2010 LLR 577 2010 LLR 577

7(1970)1SCR507

6 2010 LLR 577 2010 LLR 577

7(1970)1SCR507

20. In the matter of Ch. Tika Ramji & Othe^ Vs. The State of UttarPradesh & Others8, challenge was made to the constitutional validity ofthe U.P. Sugarcane (Regulation of Suppjy and Purchase) Act of 1953 andthe notifications issued by the State Government under the Act on theground that the subject matter of legislationbeing within exclusivejurisdiction ofthe Parliament and repugnant to IDR Act, 1951 as amendedby Act XXVI of 1953 and Essential Commodities Act, 1955 read withSugarcane Control Order, 1955.Upholding the constitutional validity ofthe aforesaid Act, the Constitution Bench of the Supreme Court held thus:- that the Central Acts in respect of sugar andsugarcane and the notification thereunder having beenenactedandmadeby theCentralGovernmentinexercise of concurrent jurisdiction under Entry 33 of ListIII of the Seventh Schedule to the Constitution asamended by the Constitution (Third|Amendment) Act of1954, the State Legislature was not deprived of itsjurisdiction thereunder and no question of legislativeincompetence of the U.P. Legislaturp or its trespassingupon the exclusive jurisdiction of the centre in enactingthe impugned Act could arise; that the provisions of the impugned Act comparedto those of the Central Acts clearly showed that theimpugned Act was solely concerned with the regulationof the supply and purchase of sugarcane and in no waytrenched upon the exclusive jurisdiction of the Centrewith regard to the sugar and the U.P. Legislative was,therefore, quite competent to enact it; that no question of repugnan,cy under Art. 254 oftheConstitutioncouldarisewNereParliamentaryLegislationandStateLegislationoccupieddifferentfields and dealt with separate and distinct matters eventhough of a cognate and allied character, and thatwhere,asinthepresentcase,therewasnoinconsistency in the actual terms of the acts enacted by ^

Parliamentand the State Legistature, the test ofrepugnancy would be whether Parlia.ment and the StateLegislature,inlegislatingunderanentryintheConcurrent List, exercised their powers over the samesubject-matterorwhetherthelawsenactedbyParliament were intended to be exhaustive so as tocover the entire field; that the power of repeal conferred on Parliamentby the proviso to Art. 254 (2) of the Constitution was alimited power and could be exercised only by enacting alaw relating to the matter dealt with by the state law andthe state law must be one of the kind indicated in thebody of Art. 254 (2) itself, and as the impugned Act didnot fall within that category the proviso did not apply andthe impugned Act, the notification made thereunder andthe U.P. Sugarcane Regulation of Supply and PurchaseOrder, 1954, stood unrepealed by s. 16 (1)(b) ofAct X of1955 and cl. 7(1) ofthe Sugarcane Control Order, 1955made thereunder; that the power of repeal conferred by the provisoto Art. 254 (2) could be exercised by Parliament aloneand could not be delegated to an executive authorityand, consequently, the Central Government acquired nopower of repeal under cl.7 of the Sugarcane ControlOrder, 1955."

21.1n the matter of M. Karunanidhi Vs. Union 6f India and another9, whiledealing with Article 254 (2) of the Constitution, it has been observed inparagraph-8 of the judgment that where a law made by the StateLegislature on a subject covered by the Concurrent List is inconsistentwith and repugnant to a previous law made by Parliament, then such alaw can be protected by obtaining the as^ent of the President underArticle 254 (2) ofthe Constitution. The result 6f obtaining the assent ofthePresident would be that so far as the State Act is concerned, it will prevail o^-]

-,, iJ iJ

-,, iJ iJ''^ •^&s--y^...^........sLin the State and overrule the provisions of the Central Act in theirapplicability to the State only.Such a state pf affairs will exist only untilParliament may at any time make a law adding to, or amending, varying orrepealing the law made by the State Legislature under the proviso toArticle 254.It has been further observed in paragraph-24 of the judgmentthus:-"It is well-settled that the presumptionis atways infavour of the constitutionality of a sfatute and the onuslies on the person assailing the Act to prove that it isunconstitutional.Prima facie, there does not appear tous to be any inconsistency between the State Act andthe Central Acts. Before any repugnancy can arise, thefollowing conditions must be satisfied:

1. Thatthereisaclearanddirectinconsistencybetween the Central Act and the State Act.between the Central Act and the State Act.2.That such an inconsistency is absplutely irreconcilable.3.That the inconsistency between the provisions of thetwo Acts is of such a nature as to bring the two Actsinto direct collision with each other and a situation isreached where it is impossible to obey the one withoutdisobeying the other."3.That the inconsistency between the provisions of thetwo Acts is of such a nature as to bring the two Actsinto direct collision with each other and a situation isreached where it is impossible to obey the one withoutdisobeying the other."

22. Undisputed facts that emerges in the present case are as follows:- The Act of 1960 was referred for Presidential assent andthe same came into force with effect from 27November,1960 after Presidential Assent was accorded to the Act.the same came into force with effect from 27November,1960 after Presidential Assent was accorded to the Act.

Section 110 of the Act of 1960 specifically provides thatnothing in the Industrial Disputes Act, 1947 shall apply toanyindustryto whichthisactisapplied.CertainprovisionsoftheIDActwithrespectoflayoff,retrenchment compensation, special provisions relating tolaw off, retrenchment, closure in certain establishmentsand unfair labour practices contained in Chapter V-A, V-B& V-C of the ID Act have been saved by the Act bysubstituting MP Act No.13 of 1986.nothing in the Industrial Disputes Act, 1947 shall apply toanyindustryto whichthisactisapplied.CertainprovisionsoftheIDActwithrespectoflayoff,retrenchment compensation, special provisions relating tolaw off, retrenchment, closure in certain establishmentsand unfair labour practices contained in Chapter V-A, V-B& V-C of the ID Act have been saved by the Act bysubstituting MP Act No.13 of 1986.

The power of repeal conferred by the proviso to Article254 (2) has not been exercised by the Parliament toamend Section 110 or Schedule appended with the Act of1960 including the cement industry in the list of industry towhich the Act of 1960 is applicable.254 (2) has not been exercised by the Parliament toamend Section 110 or Schedule appended with the Act of1960 including the cement industry in the list of industry towhich the Act of 1960 is applicable.

23. In these circumstances, the arguments advanc^d by learned counsel for thepetitioners that entry of cement industry in the schedule stands impliedlyrepealed/amended after issuance of notification dated 8-11-1977 by theCentralGovernmentnotifyingtheCentralGovernmentisappropriateGovernment, the industry engaged in manufacture or production of cementhas been declared as controlled industry for the purposes of IDR Act and theState Government is not an appropriate Govemment cannot be accepted.petitioners that entry of cement industry in the schedule stands impliedlyrepealed/amended after issuance of notification dated 8-11-1977 by theCentralGovernmentnotifyingtheCentralGovernmentisappropriateGovernment, the industry engaged in manufacture or production of cementhas been declared as controlled industry for the purposes of IDR Act and theState Government is not an appropriate Govemment cannot be accepted.24.1n view of the notification dated 8December, ^1977 issued by the CentralGovernment and keeping in view the law laid down by the Supreme Court inthe matter of Shri Yovan, India Cements Employees Union (Supra), theCentralGovernmentandtheStateGovernmentarealsoappropriateGovernment underthe Industrial DisputesAct.Government and keeping in view the law laid down by the Supreme Court inthe matter of Shri Yovan, India Cements Employees Union (Supra), theCentralGovernmentandtheStateGovernmentarealsoappropriateGovernment underthe Industrial DisputesAct.25. We also observethat no question of repugnancy arises underArticie 254 ofthe Constitution in the present case, as Parliamentary Legislation, IndustrialDisputes Act and MPIR Act deal with separate and distinct matters and theParliament has not exercised power of repeal conferred by proviso to Article254 (2) of the Constitution with respect to the provisions of the Act of 1960even after notification dated 8-11-1977.the Constitution in the present case, as Parliamentary Legislation, IndustrialDisputes Act and MPIR Act deal with separate and distinct matters and theParliament has not exercised power of repeal conferred by proviso to Article254 (2) of the Constitution with respect to the provisions of the Act of 1960even after notification dated 8-11-1977.

26. Leaned counsel for the petitioners,relying upon the judgments of theSupreme Court in the matters of Steel Authority of India Ltd and othersVs. National Union Waterfront Workers and others10 andNationalThermal Power Corporation and others Vs. Badri Singh Thakur andothers ,argued that reference made by the Stat^ Government pertains toregularization and abolition of contract labour in the cement industry whereasin view of the provisions of Section 2 (1)(a) of the.Act of 1970, CentralGovernment is an appropriate Government and the same could be done bytheappropriateGovernmentbyissuingnotificationbytheCentralSupreme Court in the matters of Steel Authority of India Ltd and othersVs. National Union Waterfront Workers and others10 andNationalThermal Power Corporation and others Vs. Badri Singh Thakur andothers ,argued that reference made by the Stat^ Government pertains toregularization and abolition of contract labour in the cement industry whereasin view of the provisions of Section 2 (1)(a) of the.Act of 1970, CentralGovernment is an appropriate Government and the same could be done bytheappropriateGovernmentbyissuingnotificationbytheCentral 110 (2001) 7 Supreme Court Cases 1

(2008) 9 Supreme Court Cases 377

Government after following the procedure prescribed in Section 10 of the Actof1970.

27.1n the instant case, the State Government on the basis of report of theConciliator regarding failure of the conciliatipn proceeding between theworkers and the employers under Section 43 of the Act of 1960 referred thefollowing dispute to the Industrial Court under Section 51 ofthe Act of 1960:- "(l)^IT f^Tf ^[cht4N;d] ^R?f ^t[cj?^^]^jf[irt^]^RTf^fRcT ^FT f^ ^TT^[cf^r]sftteT t?

"c^t^rar^ft^i^i^^^^ft-icif^^ic^ si^(2)^?T-211,225,^ 226 ^ STg^TR ^4?c{l^ ^TSTT ^FTP<r ^^ ^Tsftf^r t?^?T-211,225,^ 226 ^ STg^TR ^4?c{l^ ^TSTT ^FTP<r ^^ ^Tsftf^r t?

cf^TT ^T sT^ ^ ST^^TN ^Tff^T 1^ ^^d1f^"4t ^rf^f(3)c^r yi^chN; ^q- ^rfWr ^r ^N^ ^ ^P? ^^ t ^?rf^rto[c^]f^zrf^r[ch^iR^"]^ ^mT-T ^T-T, ^ ^^S^[f^?][ vTT^][ c^][ sfrf^T][ t?]

(4)-cfsn ^^,^, ^ \,ct-c^ipi'Jt,[•^]^^4)(J ifT^,^^lvd^H, ^€H[^TT^T][ ^TP^t][ T^f][ ST-^iTTT^T][ "^TST][ ^][ 100][ ^]s^ ^rto[ct?i4^d] t, ^% ^45<|^ ^Tcp ^f[TfTr^]^^prto fstvrpft^[s^f>][ TTHT][ ^TTc^][ ^fcFT]^ ^nTT 1^ ^^T aflRi^ t?

(5) cpTT ^f^q-T<^R:T^T (c^ T^ ^FFT)^T ^P^cf^rfWr['c^t][ ift^r]^[^T][ -^c^]P|<L|^^[chi^^ii-$l][ c(^][ iTtf^]^PT'T^[WVf][ ^-T^][ ^^PT][ 1^T][ ^r]W ^[ c^][ aflRi^][ t?]-^r(e)cf?n ^i^^p^cr^cft^c^,^cf^STN^,^fr^N,te?^T^krll'4<f^P3FFT^f^T,^P'^f^T(^.^^4-^lchd,•i't4?P|ch>d^cf[f^Tto)][ ^I]s^M^c1,41$'c^,cTT^ W^, ^W^, ^.^t.^TOcR, ^qr? STN^,TTT^T,ZfcTT^ T^ST-^T[TTT^H]yTTiT,['^€^.][ ~^€]^TC^. ^Tcft, ^p,te, ^T, ^T?,["cn^FFT,]4lc^c^|^! ^ SF^ f^ET[^TTef] ^c(?pf^T ^TTK ^tch|^|-| ^ ^crR ^K ^[1?:m^f]'RTf^rct?i4^<i ^tWr ^t i^fT^cr 3^ ^rpT T^^R'LI^

10%[c||f^c|7]eETTjT ^f "^- ^T 'gTRTR Wr ^TT^ ^T sfrf^

28. From perusal of the order of reference, it is evident that reference pertains toimplementation of the award and true construction and interpretation of theCement WageBoard Award.Thereisnonotificationby theStateGovernment for abolition of contract labour or regularization of the contractlabour in the cement industry as argued by learned counsel for the petitionersand, therefore, in our considered opinion, objection of the petitioners in thisregard cannot be accepted.implementation of the award and true construction and interpretation of theCement WageBoard Award.Thereisnonotificationby theStateGovernment for abolition of contract labour or regularization of the contractlabour in the cement industry as argued by learned counsel for the petitionersand, therefore, in our considered opinion, objection of the petitioners in thisregard cannot be accepted.

29. Writ Petition No.3973 of 2004 has been filed by the employer againstinterim order passed by the Board on 5-10-2004 whereby the IndustrialCourt, while considering the preliminary objection raised by the petitionersherein, has observed that second party may take these objections in itsstatement of claim, which shall be decided along with other issues onmerits, as the objections raised are mixed questions of law and facts.interim order passed by the Board on 5-10-2004 whereby the IndustrialCourt, while considering the preliminary objection raised by the petitionersherein, has observed that second party may take these objections in itsstatement of claim, which shall be decided along with other issues onmerits, as the objections raised are mixed questions of law and facts.

30. We find force in the argument of learned counsel for the respondents thatthe instant petitions were filed at the interlocutory stage to stall the finaladjudication of the dispute referred to the Tribunal by questioning thedecision ofthe Tribunal on the preliminary issue.the instant petitions were filed at the interlocutory stage to stall the finaladjudication of the dispute referred to the Tribunal by questioning thedecision ofthe Tribunal on the preliminary issue.

31-lntheresult:-

We dismiss the Writ Petition No.3973/2004 by imposing exemplarycost of Rs.50,000/- payable to respondent No.4.cost of Rs.50,000/- payable to respondent No.4.

In the Writ Petition No.3333/2005, the petitioners are not entitled forany reliefs as claimed in para-7 of the petition.The writ petitiondeserves to be and is accordingly dismissed.In the Writ Petition No.3333/2005, the petitioners are not entitled forany reliefs as claimed in para-7 of the petition.The writ petitiondeserves to be and is accordingly dismissed.

32. There shall be no orders as to costs.