P. N. BHAGWATI, N. G. SHELAT, J.

( 1 ) THIS petition raises the question of validity of certain provisions of the Bombay Labour Welfare Fund Act 1953 as amended by the Bombay Labour Welfare Fund (Gujarat Extension and Amendment) Act 1961 and the Bombay Labour Welfare Fund (Gujarat Amendment) Act 1962

( 2 ) THE petitioner is a Limited Company incorporated under the Indian Companies Act 1913 It is carrying on business of manufacturing cotton textiles and owns a factory situate in Ahmedabad. In its balance-sheet for the year 1961 it showed as one of its liabilities sum of Rs. 4 38 987 under the heading Sundry Creditors. This amount included Rs. 2 37 863 np which was made up of wages earned by the workmen in the factory but remaining undrawn by them and bonus for which no claim was made by the workmen within the prescribed time to earn the same under the condition of eligibility laid down in the relevant bonus agreements or awards and represented the total of such assumed liability from year to year ever since the inception of the company in 1932. The dispute in this petition relates to this amount of Rs. 2 37 863 np.

( 3 ) IN 1953 the Legislature of the then State of Bombay enacted an Act called the Bombay Labour Welfare Fund Act 1953 (hereinafter referred to as the Act) and it came into force on 4th June 1953. The Act was passed with a view to provide for the constitution of a Fund for the financing of activities to promote welfare of labour in the State of Bombay and for conducting such activities. Sec. 2 (10) defined unpaid accumulations to mean all payments due to the employees but not made to them within a period of three years from the date on which they became due whether before or after the commencement of the Act including wages and gratuity legally payable. Sec. 3 sub-sec (1) provided for the constitution of a Fund called the Bombay Labour Welfare Fund and declared that notwithstanding anything contained in any other law for the time being in force the sums specified in sub-sec. (2) shall be paid into the fund and clause (b) of sub-sec. (2) specified unpaid accumulations. Sec. 7 sub. (1) enacted that the fund shall vest in and be held and applied by the Board as Trustees subject to the provisions and for the purposes of the Act. Sec. 19 conferred power on the State Government to make rules for carrying out the purposes of the Act and in exercise of that power the State Government made the Bombay Labour Welfare Rules 1953 Rules 3 and 4 of these Rules provided the machinery for enforcing the provisions of the Act in regard to fines and unpaid accumulations. The provisions of the Act were sought to be enforced against a Company called the Bombay Dyeing and Manufacturing Company Limited and that Company therefore preferred a petition in the High Court of Bombay challenging the validity of the Act The petition was dismissed by the High Court but on an appeal preferred to the Supreme Court Sec. 3 (1) in so far as it related to unpaid accumulations sec. 3 (2) (b) was declared unconstitutional and void. The decision of the Supreme Court is reported in Bombay Dyeing and Mfg. Co. Ltd. v. State of Bombay A. I. R. 1958 Supreme Court 328. The attack against the constitutionality of sec. 3 (1) read with sec. 3 (2) (b) was based on Article 31 (2) and Article 19 (1) (f ). The Supreme Court did not decide whether sec. 3 (1) was violative of the fundamental right of the employer under Article 31 (2) but held that the section was violative of the fundamental right of the employer under Article 19 since on a proper construction the effect of the relevant provisions of the Act was to transfer to the Board the debts due by the employer to the employees free from the bar of limitation without releasing the employer from his liability to the employees and the Section therefore operated to take away the moneys of the employer without discharging him from his liability to the employees. The Supreme Court also held that in any event sec. 3 (1) was

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