2004 Supreme(SC) 346

2004(4) Supreme 119
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
V.N. Khare, CJI., S.B. Sinha & S.H. Kapadia, JJ.
M.P. Vidyut Karamchari Sangh -Appellant
versus
M.P. Electricity Board -Respondent
Civil Appeal No. 2510 of 2002
Decided on 18-3-2004
Counsel for the Parties :
For the Appellant : Dr. Rajeev Dhawan, Rohit Arya, Sr. Advocates, Prakash Shrivastava, Advocate for P.P. Singh, Advocate/Advocates.
For the Respondent : P.P. Rao, Sr. Advocate, S.K. Agnihotri, Anil K. Pandey and Ms. Mahalakshmi, Advocates.

IMPORTANT POINT
The power of the Madhya Pradesh Electricity Board to lay down the conditions of service of its employees either in terms of regulation or otherwise would be subject only to any valid law to the contrary operating in the field.

Headnote:(i) Electricity (Supply) Act, 1948-Section 79(c)-Madhya Pradesh Industrial Relations Act, 1960-Sections 33 and 99-M.P. Industrial Employment (Standing Orders) Act, 1961-Section 2(2)-Age of superannuation of an employee of State Electricity Board-On or about 16-9-1976 by a notification issued u/s 79(c) of the Act, Board adopted Madhya Pradesh Shasakiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 1972 relating to retirement age of government employees under FR 56(3) prescribing 58 years as the age of superannuation-Parties entered into an agreement on or about 10-6-1996 whereunder age of superannuation of employees was made at par with employees of Central Government-Central Government accepting recommendations of Fifth Pay Commission fixed 60 years as age of superannuation of its employees-Electricity Board issued a notification dated 22-5-1998 whereof age of retirement of employees of respondent Board enhanced to 60 years-By reason of impugned notification dated 26-12-2000, the Board reduced age of superannuation of its employees, except class IV employees, to 58 years-Notification challenged-Whether respondent Board was justified in altering the age of superannuation-(Yes)-High Court has rightly dismissed the writ petition filed by appellant.

       Held : In terms of Section 2, the 1961 Act, applies to every undertaking wherein the number of employees on any day during the twelve months preceding or on the day the said Act came into force or any day thereafter was or is more than twenty and such other class or classes of undertakings as the State Government may, from time to time, by notification, specify in this behalf. The undertaking of the Board indisputably was in existence in 1961. Per se, therefore, the provisions of the 1961 Act shall apply to the undertakings of the Board. Sub-Section (2) of Section 2 of the 1961 Act makes an exception to the applicability of the Act stating that nothing therein shall apply to the employees of an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations or any other rules or regulations that may be notified in this behalf the State Government in the official gazette apply. For excluding the operation of the 1961 Act, it is imperative that an appropriate notification in terms of Section 2(2) of the 1961 Act is issued. (Para 29)

       The Board adopted Fundamental and Supplementary Rules which per se were not applicable to the employees of their undertaking. They were adopted by the Board. The provisions of Fundamental and Supplementary Rules to the extent it was made applicable having regard to the provisions contained in Section 79(c) would, thus, be deemed to be the regulations governing the terms and conditions of the employees of the Board. The requisite notification under Section 2(2) of the 1966 Act was, thus, required to be issued by the State Government. It is not in dispute that the State Government has not issued any notification in terms of Section 2(2) of the 1961 Act and in that view of the matter the provisions thereof shall apply to the employees of the State. The 1961 Act is a special law whereas the regulations framed by the Board under Section 79(c) are general provisions. The maxim generalia specialibus non derogant would, thus, be applicable in this case. (Para 30 and 31)

       The enhanced age of superannuation of members of the appellant Association was, therefore, subject to any law that may operate in the field. The respondent Board, as noticed hereinbefore, issued the notification dated 22.5.1998 whereby and whereunder it had given a seal of approval to the aforementioned agreement, which was to continue to operate in view of the agreement, until the same is replaced by another valid notification. The Board has issued such a notification on 26.12.2000 in exercise of its statutory power under Section 79(c) of the Act . (Para 40)

       It is one thing to say that when there exists a conflict between a regulation made under Section 79(c) of the Act and a certified standing order or a rule made under the 1961 Act, the latter shall prevail, but it is another thing to say that in absence of any statutory provision governing the age of retirement, the statutory regulations framed by the respondent Board shall have no application. It is not in dispute that the impugned notification dated 26.12.2000 had been issued by the Board in exercise of its power under Section 79(c) of Electricity Supply Act. Section 15 of the Act empowers the Board to appoint a Secretary and such other officers as may be required to enable the Board to carry out its functions. Section 79(c) empowers the Board to make regulations inter alia as regard the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service. The Board, therefore, was empowered to make regulations which are not inconsistent with the provisions of the Act and the Rules providing for the duties of officers, their salaries, allowances and other conditions of service. (Para 41)

       The power of the Board, therefore, to lay down the conditions of service of its employees either in terms of regulation or otherwise would be subject only to any valid law to the contrary operating in the field. Agreement within the meaning of proviso appended to Rule 14A is not a law and, thus, the regulations made by the Board shall prevail thereover. (Para 42)

       (ii) Constitution of India-Article 254 Entry 38, List III-Legislative powers of Centre and State covering the same field-When the law made by the Parliament and State Legislature occupy the same field-Subsequent legislation made by the State which had received assent of the President of India would prevail over Parliamentary Act when there exists direct conflict between two enactments-Electricity (Supply) Act, 1948.

       Held : 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. (Paras 22 and 23)

       It is no doubt true that the entire field relating to Electricity is covered under Entry 38 of List III pursuant whereto the Indian Electricity Act and Electricity (Supply) Act, 1948 were enacted but thereby the State s legislative competence to exercise its legislative power under Entries 22, 23 and 24 was not taken away. Section 79(c) of the Electricity (Supply) Act provides for an incidental power upon the Board. The same would, therefore, not prevail over the specific legislative competence granted to the State to regulate the conditions of service between an industrial undertaking and its employees nor thereby the State Government would be denuded of its legislative power relating to regulation of the industrial relations. (Para 24)

       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 does not exist 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. (Para 27)