1977 Supreme(MP) 33

High Court Of Madhya Pradesh
Shivdayal Shrivastava, C. J. , G. L. Oza and G. G. Sohani, JJ.
M.P.S.R.T.C. - Appellant
Versus
RAMCHANDRA - Respondents
Misc. Petn. 179 Of 1973
Decided On : 03/09/1977

Headnote:(1) Road Transport Corporation Act, 1950-S.45-Regulations-Reg. No. 59-Constitution of India, Art. 245 Seventh Schedule. Union List. entries 43 & 44 Concurrent list-entry 24-Act and Regulations validly enacted. The subject matter of the Road Transport Corporation Act, 1950, falls within the purview of Entry 43 of the Union List. Hence the Act was validly enacted by the Parliament. Clause (c) of section 45 and Regulation No 59 made there under falls within the purview of Entry 24 of the Concurrent List of the Seventh Schedule of the' Constitution. It must however be said that the true subject-matter of the Act in pith and substance. falls within the legislative field of Parliament by which it has been enacted Even if section 45 (2) (c) incidentally trenches upon the subject-matter in the Concurrent List the validity of the Act is not affected, firstly, because of the pith and substance doctrine and, secondly, because the subject matter in the Concurrent List is also within the legislative field of Parliament. [Para 9

       It must, therefore, be said that

        (i) the Corporation Act, 1950. is valid having been enacted by a competent legislature;

       (ii) although a particular provision may be found to fall within the purview of the Concurrent List. yet the Act remains to fall within the purview of the Union List of the Seventh Schedule and is, therefore, valid:

       (iii) as the Regulations have been made under the Act are by competent authority in exercise of its delegated powers. they are valid: and

       (iv) the Regulations validly apply to the employees of the M.P.S.R.T.C. [Paras 10 & 28 (1)

       (2) Industrial Employment (Standing Orders) Act, 1961 (M.P.)-S.21-Constitution of India, Art. 245 Seventh Schedule Entry 24-Act is validly enacted. [Para 12 and 28 (1)

       (3) Industrial Employment (Standing Orders) Act, 1961 (MP)-S.21-Industrial Employment (Standing Orders) Rules, 1963 (M P)-are validly made-the Rules have force of law

       (4) Rules-made under statutory-have force of law.

       The Standing Orders Rules, 1963, having been made by the State Government in exercise of the powers under section 21 of the Standing Orders Act are valid and they having been applied to the M.P.S.R.T.C. with effect from July 6, 1963 govern the service conditions of the employees of M.P.S.R.T.C. (vide section 6). Rules and Regulations made by a subordinate agency under the statutory power delegated by the legislature have the same force as laws made by the legislature. AIR 1953 SC 72, 195 JLJ 105 ; AIR 1961 SC 751, relied on. [Para 12

       (5) Road Transport Corporation Act, 1950-S.45-Regulations-Industrial Employment (standing Orders) Act, 1961 (MP)-S. 21- Industrial Employment(Standing Order) Rules. 1963 (MP)-M.P. State Road Transport Corporation- both provisions apply unless they are repugnant.

       It can be stated as undoubted position of law that so far as there is no repugnancy between the Regulations on the one hand and the Standing Orders Act or the Rules on the other, all the provisions of both will apply to the M.P.S.R.T.C. The Corporation and its employees will be governed by both the Regulations and the Standing Orders Act and Rules. Further, even if there is all apparent inconsistency, it is the duty of the Court to so interpret the provisions as to harmonise them. Problem arises when provisions contained in one are repugnant to the provisions contained in the other so that both of them collide and cannot stand together. In such a case, it is to be decided which overrides the other. [Para 13

       (6) Constitution of India-Art. 255 (2)-'repugnancy' -what is.

       (7) Words and Phrases-repugnancy'-what is.

       'Repugnancy' connotes the idea of incompatibility, that is to say, when both cannot logically exist at the same time.[Para 13

       (8) Constitution of India-Art. 254-applicability of the two clause - provision in Union Law and State Law repugnant-State Law when prevails.

       When the question of repugnancy between any provision contained in a law made by the legislature of a State and any provision contained in a law made by Parliament arises. clause (2) of Article 254 has first to be considered because if the case falls under clause (2). then clause (1) becomes inapplicable. Clause (2) comes into play only when the two laws in question deal with a matter in the Concurrent List. If that question is answered in the affirmative, then the second test to be applied is whether the State law has been made with the assent of the President. And. when that question too is answered in the affirmative, then the third and most important question arise, whether the provisions of the law made by Parliament were earlier. Thus, when all these three conditions are satisfied, the law made by the State Legislature Will prevail. (Para 15

       (9) Pith & substance-doctrine of-what is.

       (10) Constitution of India-Art. 254 (2)-doctrine of 'pith and substance' -when applies -particular 'provision' when to be examined.

       The doctrine of pith and substance is this. Entries in the Legislative Lists. when taken separately may be found to overlap one another in certain cases. They have to be read together and reconciled with each other so as to avoid rendering any of them nugatory. Entries have to be construed with reference to the actual enactment. Relative fields of the Entries cannot be considered merely in abstract. Whether a particular provision falls within the jurisdiction of the Legislature which has passed it, the Court has to see what constitutes in pith and substance the true subject matter of the Legislation and whether such subject matter is covered by the Legislative List of that Legislature If in pith and substance, a particular provision falls within the Legislative field of the Legislature which enacted it, the validity of such provision will not be affected even if it incidentally trenches upon the topic within the Legislative competence of another Legislature. Where an impugned Act covers several matters and it may be called as a single Act, i.e. under one title. yet, its validity must be considered with reference to the particular provision which is impeached. AIR 1976 SC 2177 relied on.

       This doctrine is usefully and usually invoked when a Law made by a Legislature essentially in respect of a subject matter pertaining to its Legislative. List, contains a provision which trenches upon another Legislative List not within its competence. [Para 16

       In other words, in order to judge the validity and competence of an enactment, it is sufficient if by applying the pith and substance rule the Law is found to be within the legislative competence or Parliament. However, it is a separate and distinct matter that any particular provision contained in a Law made by Parliament is found to be repugnant to with a provision contained in a Law made by State Legislature The Language of Clause (2) is abundantly clear. It applies where a Law made by the Legislature or a State contains any provision repugnant to the provisions 'of an earlier Law made by Parliament'. Thus, what is to be seen is whether any Provision contained in the Standing Orders Act, 1961 is repugnant to the Provisions of the Regulations Act, 1950, which is 'earlier Law'. In that case, the provisions contained in the Standing Orders Act will prevail, as it has received the President's assent. [Para 17

       (11) Road Transport Corporation Act, 1950 - S.45 - necessary requirements for making the Regulations-third requirement.

       Section 45 of the Act empowers the Corporation to "make" regulations after previous sanction of the State Government. This necessarily requires three steps :-

       (1) The Corporation "frames" or "proposes" regulations by its resolution. They have to be sent to the State Government for according sanction.

       (2) The State Government then accords its sanction. In this power of the Government it is implicit that it may reject or suggest amendment or modification in the proposed regulations and eventually accord its sanction.

       (3) After the State Government accords its sanction, the Corporation "makes" regulations. This third step is necessary because the expression" previous sanction of the State Government" necessarily denotes that the Corporation in order to "make" the regulation has to do something "after" the sanction of the State Government. To put it differently the "previous sanction" is a step earlier than the "making of the regulations."

       After the sanction of the State Government, the General Manager could not enforce the Regulation, a resolution of the Corporation was necessary. [Paras 22 and 23

       (12) Road Transport Corporation Act 1950-S.45-Regulation 59-not repugnant to Standing Order No. 11- provision as to age of retirement - Nature of.

       (13) Master & Servant-age of retirement-nature of the provision.

       Regulation 9 fixes the age of retirement. The Standing Orders do not contain any such age of retirement Order 11 of the Standard Standing Orders provides for termination of employment but do not provide for any ipso facto age of retirement. Regulation 59, therefore, can stand together with Order 11 of the Standard Standing Orders. There is no repugnancy. Furthermore, it is clear law that a provision as to the age of retirement in an establishment applies to all employees irrespective of whether they entered into the service prior to or subsequent to the coming into force of that provision and even though there was no such provision for retirement in the past. AIR 1972 SC 1626, AIR 1972 SC 1201 and AIR 1970 SC 512, relied on. (Para 24

       (14) Road Transport Corporation Act, 1950-S.45-Regulations cannot be given retrospective effect. [Para 25

       (15) Rule-Delegated authority-cannot give retrospective effect unless authorised. (Para 25

       (16) Industrial Employment (Standing Orders) Rules, 1963 (MP.)-Standing Order 11-requirements of -'reasons of – reasons of termination'-meaning of-effect of not giving one months notice or payment in lieu of.

       (17) Master and servant-one month's notice or wages in lieu of notice not given-remedy of the employee.

       The requirements of Standing Order No 11 are two :

       (i) one months' notice or wages in lieu of notice;

       (ii) reason for termination to be recorded in writing and communicated to the employee.

       If one months notice or pay in lieu of notice is not given the employee can claim one month's wages, but be cannot claim reinstatement. AIR 1972 SC 1487, relied on. (Paras 32 and 36

       The expression 'reason for termination of service" which is to be recorded and communicated is a comprehensive expression. It envisages any reason which is not by way of punishment or victimisation and is reason which is rational, as opposed to arbitrary, capricious or whimsical. [Para 14