1976 Supreme(Cal) 79

IN THE HIGH COURT AT CALCUTTA
Bimal Chandra Basak, J.
E.C.Bose & Co. (P) Ltd. & Ors. – Petitioners
Versus
Calcutta Dock Labour Board & Anr. – Respondents
C. R. 6501 (w) of 1974.
Decided On : February 27, 1976

Executive action taken during emergency under pre-emergency law is protected under Art. 358 of the Constitution and cannot be challenged on the ground that it violates the rights guaranteed under Art. 19.

Headnote:

DOCK WORKERS - Levy - Determination of - Validity - Challenge - Maintainability - Presidential Order under Art. 359(1) of the Constitution - Effect - Scope of Art. 358 and Art. 359(1) - Interpretation - Executive action - Meaning - Whether includes executive action taken during emergency under pre-emergency law - Whether executive action protected under Art. 358 - Whether enforcement of fundamental right under Art. 19 can arise when executive action is protected under Art. 358 - Whether Presidential Order under Art. 359(1) can be read in isolation without reference to Art. 358 - Whether Presidential Order under Art. 359(1) bars hearing and disposal of writ petition challenging executive action protected under Art. 358 - Whether fundamental right to carry on business guaranteed by Art. 19 is available to corporate bodies - Whether fundamental right to carry on business guaranteed by Art. 19 is infringed by imposition of levy - Whether citizen of India can claim as a fundamental right to carry on a particular business in a particular area.

Fact of the Case:

Petitioners, private limited companies and shareholders and directors of the said companies, are stevedores and steamer agents at the Port of Calcutta. Calcutta Dock Labour Board (Board) is a body corporate constituted under the Dock Workers (Regulation of Employment) Act, 1948 (Act). Petitioners have been indenting large labour forces from the Board from time to time as and when required. Petitioners have been paying wages and levy in respect of pool labour indented by them and supplied by the Board. Petitioners have been paying wages and other emoluments and benefits to the workers direct and only the amounts of the levy to the Board in connection with the employment of monthly workers. Petitioners have been praying very large sums to the Board as levy in terms of the Scheme. Petitioners challenged a resolution of the Board determining certain rates of levy and the approval given thereto by the Central Government on the ground, inter alia, that it affects the fundamental right of the petitioners guaranteed by Art. 19 of the Constitution and accordingly the same is ultra vires. Petitioners contended that the impugned resolution has been challenged by them on the ground that it affects the fundamental right of the petitioners guaranteed by Art. 19 of the Constitution and accordingly the same is ultra vires. According to them the question of enforcement of any fundamental right, within the meaning of Article 359 (1) arises, if it involves the consideration of any point regarding the violation of any fundamental right which is the subject matter of any Presidential Order under Art. 359. Petitioners submitted that the impugned resolution is an executive action within the meaning of Art. 358 and such action could not be challenged during the emergency on the ground that it violates the rights guaranteed under Art. 19. Petitioners further submitted that Art. 359 and/or any Presidential order made thereunder cannot be read isolatedly without any reference to Art. 358. In a case where Art. 358 is already attracted, Art. 359 (1) should be read in that background. If a particular executive action cannot be challenged in view of the protection granted by Art. 358, then the question of enforcement of the same, within the meaning of Art. 359 (1), cannot also arise. Petitioners also submitted that no such fundamental right under Art. 19 exists in the petitioners and the question of any infringement of that right cannot arise. Further on the date of the issue of the Rule and on the date of the issue of the Presidential Order under Art. 359 (1), there was no such fundamental right which could be enforced by this writ petition. Accordingly, the Presidential Order under Art. 359 issued on 8th January, 1976 is no bar to the hearing and disposal of this writ petition.

Finding of the Court:

Court held that the impugned resolution is an executive action within the meaning of Art. 358 and such action could not be challenged during the emergency on the ground that it violates the rights guaranteed under Art. 19. Court further held that Art. 359 and/or any Presidential order made thereunder cannot be read isolatedly without any reference to Art. 358. In a case where Art. 358 is already attracted, Art. 359 (1) should be read in that background. If a particular executive action cannot be challenged in view of the protection granted by Art. 358, then the question of enforcement of the same, within the meaning of Art. 359 (1), cannot also arise. Court also held that no such fundamental right under Art. 19 exists in the petitioners and the question of any infringement of that right cannot arise. Further on the date of the issue of the Rule and on the date of the issue of the Presidential Order under Art. 359 (1), there was no such fundamental right which could be enforced by this writ petition. Accordingly, the Presidential Order under Art. 359 issued on 8th January, 1976 is no bar to the hearing and disposal of this writ petition.

Issues: 1. Whether the impugned resolution is an executive action within the meaning of Art. 358? 2. Whether Art. 359 and/or any Presidential order made thereunder can be read isolatedly without any reference to Art. 358? 3. Whether a particular executive action can be challenged in view of the protection granted by Art. 358? 4. Whether the question of enforcement of a fundamental right, within the meaning of Art. 359 (1), can arise if a particular executive action cannot be challenged in view of the protection granted by Art. 358? 5. Whether any fundamental right under Art. 19 exists in the petitioners? 6. Whether the question of any infringement of the fundamental right under Art. 19 can arise?

Ratio Decidendi: 1. The expression "executive action" under Art. 358 is very general and wide in nature. Article 358 not only protects a law made during the emergency, but also any executive action taken during the said period. The expression used is "to make any law or to take any executive action." Accordingly, it cannot be said that the expression "executive action" used there is only confined to an executive action taken during emergency under any law made during the emergency. 2. Art. 359 and/or any Presidential order made thereunder cannot be read isolatedly without any reference to Art. 358. In a case where Art. 358 is already attracted, Art. 359 (1) should be read in that background. If a particular executive action cannot be challenged in view of the protection granted by Art. 358, then the question of enforcement of the same, within the meaning of Art. 359 (1), cannot also arise. 3. A particular executive action cannot be challenged in view of the protection granted by Art. 358. 4. The question of enforcement of a fundamental right, within the meaning of Art. 359 (1), cannot arise if a particular executive action cannot be challenged in view of the protection granted by Art. 358. 5. No such fundamental right under Art. 19 exists in the petitioners. 6. The question of any infringement of the fundamental right under Art. 19 cannot arise.

Final Decision: Writ petition dismissed.