Suresh Babu vs. Asst. Superintendent of Police

Suresh Babu vs. Asst. Superintendent of Police

2006(1)KLT647

 

Facts:

Petitioner (P) was running a parcel service business. P filed a writ petition contending that his permanent employees who were exclusively engaged for loading and unloading work were covered under the Motor Transport Workers Act and, therefore, they need not be registered under the Kerala Headload Workers Act. Later on, the writ petition was amended for a declaration that registration under R.26A of the Kerala Head Load Workers Rules or any other allied provisions under the Kerala Head Load Workers Act and Rules were not required since the workers were governed by the provisions under the Motor Transport Workers Act, Rules and Schemes made thereunder.

Issue: Both of these Acts being special Acts, which one of them should prevail over the other.

Contentions:

Petitioner –

The Motor Transport Workers Act, 1961 being a Central Act and also a Special Act provided for the welfare of the motor transport workers and for regulating the conditions of their work, should prevail over the State Act.

Opposite Party –

• Headload Workers Act is a Special Act to regulate the employment of the headload workers in the State of Kerala and should prevail over the Motor Transport Workers Act.
• Latter Act prevail over the former as legislature presumed to be aware of the former enactment while passing the subsequent enactment

Held (Kerala High Court):

Both Acts are labour welfare legislations coming under entry 24 of List III of Seventh Schedule to the Constitution and both the State and Central has got concurrent powers on the subject.

Article 254 (1) of the Constitution of India provides that in case of repugnancy of any of the provisions of the State Act enacted on matters in the concurrent list, provisions of the Central Act would prevail subject to clause (2) of Art. 254. Clause (2) of Art. 254 provides-

“(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State:

Provided, that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

The Kerala Headload Workers Act received the assent of the President of India on 20-5-1981. Therefore, if there is conflict between the provisions, the Kerala Act will prevail in view of Article 254 (2). In this case, since Kerala Act is a subsequent Act and received the assent of the President will prevail over the Central Act.

In such a case, the onus is on the petitioner to prove that provisions of the Central Act and State Act contain repugnant provisions. The petitioner also needs to prove the extent of repugnancy and establish how that a provision or part of the provisions is repugnant. Mere possibility is not enough. (para 10)

Both these Acts are special Acts and in such an event it is the later Act which must prevail. The Court referred to the decision in Bhoruka Steel Ltd. v. Fairgrowth Financial Services Ltd. and cited the head note from that case, which said-

“Where there are two special statutes which contain non obstante clauses the later statute must prevail. This is because at the time of enactment of the later statute, the legislature was aware of the earlier legislation and it’s non obstante clause. If the legislature still confers the later enactment with a non obstante clause it means that the legislature wanted that enactment to prevail. If the legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply.”

By referring to Bharat Hydro Power Corporation Ltd. and Ors. v. State of Assam and Anr.[1], the court observed that-

“Whether there is direct conflict between two statutes, whether the two statutes occupy the same field and whether legislature intents to lay down an exhaustive code in respect of the subject matter etc. also should be examined.”

Most importantly, the High Court of Kerala referred to the Supreme Court’s decision in Ashoka Marketing Ltd. and Another v. Punjab National Bank and Ors.[2] in which the Apex Court held that-

“in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein (para 61). In case of conflict between two Special Acts, the later one will prevail as the maxim is leges posteriores priores conterarias abrogant. But, as far as possible, both Acts shall be harmoniously construed. If an interpretation is possible so as to avoid conflicts such interpretation shall be accepted, so that objects of both Acts can be fulfilled.”

Referring to the Apex Court decision R.S. Raghunath v. State of Karnataka and Anr.[3] Kerala High Court also observed that there should be a clear inconsistency between the two enactments before giving an overriding effect to the non-obstante clause. Accordingly, it held that since in the present case both the Acts are to protect the interest of the workers and the Petitioner was not able to establish a clear repugnancy between the provisions of both the Acts, the contention of the petitioner that in view of the Motor Transport Workers Act, motor transport workers are excluded under the provisions of Kerala Headload Workers Act, should fail.