1996 Supreme(SC) 682

1996(3) Supreme 131
SUPREME COURT OF INDIA
K. Ramaswamy & K. venkataswami, JJ.
Regional Provident Fund Commissioner etc. -Appellants
versus
Shillong City Bus Syndicate & Anr. etc. -Respondents
Civil Appeal No. 3140 (NCM) of 1980
with
Civil Appeal No. 1282 of 1990
Decided on 27-3-1996

IMPORTANT POINT
The Employees Provident Fund and Miscellaneous Provisions Act, 1952, is applicable to the area of the Khasi Hills Autonomous District.

Headnote:Employees Provident Fund and Miscellaneous Provisions Act, 1952 -Section 7A-Applicability-Memo issued under alleging non-payment of Employees Provident Fund Contribution-Challenged on the ground that operation of transport service was within Khasi Hills District-Whether the Act applies to Khasi Hills autonomous District after the Council to the said District was constituted on June, 27, 1952 ?-(Yes)- Notice issued under Section 7B is applicable to respondent-Order of majority stands set aside-Minority view upheld. (Constitution of India-Art. 245, Schedule Sixth-Paragraphs 12, 12-A and 19).

       Held that, on constitution of the District or Regional Council, paragraph 19 ceases to operate and power of the Governor becomes co-terminus and ceases to exist. Simultaneously, the power of the District or Regional Council, becomes operational to make laws on subjects covered in paragraph 3 of the Sixth Schedule. Proprio vigore, paragraph 12-A comes into force. By operation of paragraph 12A(b), the President has been empowered to direct by a notification that any Act of Parliament should not be made applicable or made applicable with such modifications an exceptions, as may be specified in the said notification. In other words, until such notification is published by the President, all Acts of Parliament which are not occupied by the provisions contained in paragraph 3 shall proprio vigore become operative in the area of the autonomous Regions or Districts in the State of Meghalaya. (Para 15)

       The majority of the learned Judges appeared to be under the impression that during transitory period until the District or Regional Council is constituted, the Governor s power under paragraph 19 operates the field. By operation of paragraph 19[1] (b), since the Governor did not notify, by a public notification, that the Act would be applicable to the autonomous Khasi Hills District, it did not come into operation. Equally, after the District Council was constituted the Act did not become automatically operative. That appears to be the basis on which the learned Judges decided the issue, though for different reasons. With due respect, the learned Judges did not angulate the problem from proper perspective. As soon as the District Council was constituted under paragraph 2, paragraph 12-A came into operation with effect from June 27, 1952. The Acts of Parliament made under Article 245 has territorial or extra-territorial operation by virtue of notification published in the Gazette of India after the President gave his assent. Baharul Islam, C.J. (as he then was) has held that publication of the Act in the region is a pre-condition for the Act to come into operation. It is seen that the Act was already published in the Gazette of India and it came into force w.e.f. March 4, 1952 throughout the territory of India except in the State of Jammu & Kashmir, by operation of sub-section (2) of Section 1 of the Act. The law made by the Parliament, becomes operational, subject to the provisions of the Constitution, for the whole or any part of the territory of India. No law made by the Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. Therefore, as soon as the Governor ceases to have power under paragraph 19, the Act became operative in the area or region over which Khasi Hills District Council had assumed power under paragraph 12-A (a). Soon thereafter, paragraph 19 ceased to operate. Proprio vigore, the Act of Parliament came into operation for the area of Khasi Hills District until the President, by a notification, exclude its application to that area or made it applicable with such modifications and exceptions as may be specified in a notification published in this behalf in the Gazette of India. Admittedly, no such notification was published by the President. Resultantly, the Act came into operation throughout the country, except the State of Jammu & Kashmir. But earlier, by operation of paragraph 19[1] (b) of the Sixth Schedule, due to a non obstante clause engrafted therein, its application stood excluded since no notification was issued by the Governor making the same applicable under paragraph 19[1] (b) to that autonomous District which ceased to be operative from June 26, 1952. (Para 16)

       It is true that the autonomous nature of the administration was sought to be preserved by the Constitution as envisaged in Sixth Schedule giving power to the District or Regional Council to make laws in respect of the matters enumerated in paragraph 3. With passage of time the tribals or groups gradually must assimilate in the main stream of national life. Every endeavour - social, educational and economic empowerment should be made to bring them into the mainstream of national life. The contribution to the fund under the Act is not one of the subjects enumerated in paragraph 3. Therefore, the Act is not an occupied field assigned to the autonomous District Council. It is well-settled law that right to health to a worker is a fundamental right. The Act seeks to provide succour to preserve that right to health to the tribal workers in the region. In this case, we are not concerned with the question of repugnancy. Therefore, Baharul Islam, C.J. and Saikia, J. rightly have pointed out that the Act was applicable to that area but the learned Chief Justice was in error in holding that there should be separate publication of the Act in that region. For the reasons mentioned hereinbefore, the need to make separate publication is redundant. By operation of Section 1(2) of the Act, the Act had already come into operation on March 4, 1952. The operation of paragraph 12-A (b) was not at all considered by majority members of the Bench. The reasoning of Hansaria J. also is not, with due respect, correct. As pointed out earlier, paragraph 12-B becomes operational on the constitution of the District Council. Consequently, the Governor ceases to have power under paragraph 19[1] (b). Resultantly, there is no inconsistency or incongruity in their operation. (Para 17)