Indian Air Force Employees Union vs State Of Maharashtra, ...
2003 Latest Caselaw 330 Bom

JUDGMENT

A.S. Aguiar, J.

1. The petitioners are a Union registered under the Indian Trade Unions Act, 1926 and recognized by the Government of India. The Union, at the time of filing the petition, consisted of 450 members from Grade-C & Grade-D category i.e. equivalent to Class-III and Class-IV civilian employees working in 25-Equipment Depot, Air Force Station, South Deolali. The total strength of the staff at the said unit was about 700. The group-C and group-D employees are the industrial and non-industrial workers. Group C cadre consists of carpenters, clerks, motor drivers, painters, stores keepers etc. Group-D cadre consists of safaiwalas, watchman, cooks etc.

2. The petitioners state that respondent No. 4 was and is deducting from the salaries and wages paid to the members of the said petitioner Union and other civilian working in the said equipment department a sum of Rs. 50/- per month in respect of Group-C worker and Rs. 30/- per month in respect of group-D worker under Section 4 of the Maharashtra State Tax on Professions Trades, Callings and Employments Act, 1975 (Maharashtra Act No. 16 of 1975) (herein after referred to as 'the said Act').

3. It is the contention of the petitioner Union that its members are not liable for any amount being deducted from their salaries and wages towards the tax under the said Act. It is contended that under Section 27(a) of the said Act members of armed forces of the said Union serving in any part of the state are exempted from payment of the said Tax. It is pointed out by the petitioners that similar enactments exists in the State of West Bengal, Karnataka and Andhra Pradesh but in no other states, other than the said 4 States, viz. Maharashtra, Wet Bengal, Karnataka and Andhra Pradesh, there is any tax levied on professions, trades, callings or employment. It is the contention of the petitioner that employees in the All India services are not required to pay any tax on their employment nor are the petitioners liable to pay the same when they are posted on transfer out of Maharashtra. It is contended, relying on the decision of this Honourable Court in 1992 Maharashtra Law Journal 316, that Civilian defence personnel who can be ordered to render field services and follow army in certain situations mainly war time, are exempt from the liability to pay profession tax under the provisions of the said Act in view of the provisions regarding exemption under Section 27-A.

3. It is pointed out that despite the said legal position respondent No. 1 and 2 insisted on collecting professional tax from the employees working in the defence services at various places. This has resulted in a bunch of petitions filed in this High Court which were disposed of by common order dated 10.1.1994 (an unreported case).

4. The petitioners Union made representations to their Office, namely, respondent No. 4, who in turn recommended their case pointing out that since the case of the employees of petitioner Union is on the same footing, the deduction of professional tax may not be made. It is pointed out that even the Head quarter, maintenance Command, Indian Air Force, Nagpur, had represented the case of the employees and all other civilian employees working at Air Force, for stopping the recovery of the professional tax. However, respondent No. 3 took no action in the matter.

5. Since their grievances were not redressed, the petitioners have filed the present petition seeking reliefs namely, declaration that the members of the petitioner Union are entitled to exemption under Section 27(a) of the said Act from payment of professional tax under the said act, and for direction to respondents not to recover any amount from the members of the petitioner Union's working in group-C, D towards professional tax under the said and for refund to the members of the petitioner union all amounts recovered from the salaries/wages under the said Act.

6. It is the contention of the petitioner that its members are also members of armed forces as they are governed by Rules and Regulations and Act applicable to employees who ordinarily render filed service. It is also pointed out that the salaries of the said employees, members of the Union are also paid from the defence services estimates of the Union of India from which the salaries and other benefits, facilities and perquisites of the employees in the field services are paid and the civilians in the armed forces are on par in all respect with the employees in field service. It is submitted that since their counterparts working in other states are not required to pay the professional taxes the employees of the All India service in Maharashtra in general, and the members of petitioner Union working in respondent No. 4 are also not liable for payment of professional tax and the action of Respondent No. 3 in recovering the said tax from its members is arbitrary, and violative of Article 14 of the Constitution. In support of their contention reliance has been placed on B.S. Raut and Ors. v. State of Maharashtra, 1992 Maharashtra Law Journal, 360 wherein it has been held by a Division Bench of this Court that even civilian Defence personnel who can be ordered to render field service when called upon to do so fall in the exempted category "Armed forces" and therefore are exempted from liability to pay professional tax under Section 27A of the Maharashtra State Tax and Professional, Traders, Callings and Employment Act, 1975.

7. The Divisional Bench of this Court declared its judgment in the case of B.S. Raut v. State of Maharashtra on the basis of the ratio laid down by the Supreme Court, in the case of 'ous Kutilingal Achudan nair v. Union of India', , where the question arose whether the right to form union of the Civilian defence personnel like cooks, chowkidars, laskars, barbars, carpenters, mechanics, boot-makers, tailors etc. (unenrolled non-cambatants governed by the Civil Service Rules) could be curtained under Section 21 of the Army Act." The employees therein had taken a stand that they were not the members of the "Armed Forces" as contemplated under the Article 33 of the Constitution and hence their right to form Union could not be curtailed under Section 21 of the Army Act. The Union of India took a contrary stand and upholding that stand the Supreme Court observed as follows:

"In enacting the Army Act, 1950 in so far as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Article 33 of the Constitution Section 2(1) of the Act enumerates the persons who are subject to to the operation of this Act. According to Sub-clause (i) of this section, persons governed by the Act, include persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by or are in the service of, or are followers of, or accompany any portion of the regular army.

The members of the Unions represented by the appellants obviously fall within this category. It is their duty to follow or accompany the Armed personnel on active Service, or in camp or on the march. Although they are non-combatant and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of "members of the Armed forces" within the contemplation of Article 33.

Consequently by virtue of Section 21 of the Army Act, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Article 19(1)(c).

8. However, the position as set out by, a Division Bench of this Court in B.S. Raut v. State of Maharashtra is no longer good law in view of a recent judgment of this Court in the case of Pratiraksha Mazdoor Sangh and Ors. v. State of Maharashtra and Ors. reported in 2002, Bombay C.R. 414. Wherein this Court in para 17 observed as follows:

"17. The substratum of the very basis of the judgment of the Division Bench delivered in the case of B.S. Raut v. State of Maharashtra (Supra) does not exist as on date, as such, the said judgment is no longer a good law and it cannot be allowed to hold the field in the light of the existing provisions of the Act. A Statute after its amendment is to be read and construed with reference to the new provisions and not with reference to the provisions which originally existed. It is needless to mention that when legislature intended by any particular amendment to make substantial changes in the existing statute, it is impossible to arrive at a conclusion without noticing the change suggested or intended and after taking into account the changes made by the legislature, it is not possible for us to hold that the said judgment still holds the field. In view of the amendment to Section 27-A of the Act, the said judgment cannot be applied to the facts of the present case. It is no longer a good law."

9. This Court by its decision in Pratiraksha Mazdoor v. State of Maharashtra overturned its earlier decision in the case of B.S. Raut v. State of Maharashtra, (Supra), in view of the recent amendment to Section 27(A) of the said Act deleting Clause (a-1) i.e. "persons on the establishment of Defence Ordinance Factories at any part of the State". The said clause is deleted by Maharashtra Act, 28/2000 with effect from 1.5.2000.

10. This Court in Pratiraksha Mazdoor case surveyed the history of the Legislation in question and pointed out that when the Act was brought on the Statute book it did not contain any power to grant exemption in favour of any person from the provisions contained in Section 3 of the Act.

Section 3 reads as under:

"3. Levy and charge of tax.--(1) Subject to the provisions of Article 276 of the Constitution of India and of this Act, there shall be levied and collected a tax on professions, trades, callings and employments for the benefit of the State.

(2) Every person engaged actively or otherwise in any profession, trade, calling or employment and falling under one or the other of classes mentioned in the second column of Schedule I shall be liable to pay to the State Government the tax at the rate mentioned against the class of such persons in the third column of the said Schedule:

Provided that, the tax so payable in respect of any one person shall not exceed two thousand and five hundred rupees in any year:

Provided further that, entry 23 in Schedule I shall apply only to such classes of persons as may be specified by the State Government by notification in the Official Gazette, from time to time."

11. Subsequently, since it was thought necessary to provide such power to grant exemption, Section 27(A) was introduced by Maharashtra Act No. 21 of 1976 with effect from 1.11.1976 Section 27-A provided the power to grant exemption from the provisions of Section 3 of the Act as amended with effect form 1.11.1976 Section 27A read as follows:

27-A Exemptions:--Nothing contained in Section 3 and other provisions of this Act shall apply to:

(a) The members of the armed forces of the Union, that is to say to whom the provisions of the Army Act, 1950, the Air Force Act, 1950, or the Navy Act, 1957 apply serving in any part of the State.

12. Section 27 A Clause (a) was substituted on 22.2.1991 by Maharashtra Act 12 of 1991 to be read as follows:

(a) the members of the forces as defined in the Army Act, 1950 or the Air Force Act, 1950 and the members of Indian Navy as defined in the Navy Act, 1957 serving in any part of the State and drawing pay and allowances as Army or Air Force or Navy, as the case may be, including the members of auxiliary forces for reservists, or reserve and auxiliary services serving in any part of the State and drawing pay and allowances as such auxiliary forces or reservists, or reserve and auxiliary services, as the case may be under the budgetary allocations of the defence services.

13. The amended Section 27A was again amended by insertion of Clause (a-1) by Maharashtra Ordnance No. 12 of 1996 with effect from 1st October, 1996 substituted by Maharashtra Act, 9 of 1997 to as follows:

"(a-1) persons on the establishment of Defence Ordnance Factories in any part of the State".

Clause (a-1) of Section 27A has now been deleted by Maharashtra Act No. 28 of 2000 with effect from 1st May, 2000.

14. In view of deletion of the above Clause (a-1) the exemption in favour of persons on establishment of defence Ordnance Factories in any part of the State, as clarified by this Court in case of B.S. Rauth v. State of Maharashtra (Supra), no longer exists.

15. It was the contention of the petitioners in Pratiraksha Mazdoor v. State of Maharashtra that despite deletion of Sub-clause (a-1) of Section 27-A the petitioners are entitled to exemption, on the text of existing Clause (a) of Section 27-A of the Act. According to them, when the case of B.S. Raut v. State of Maharashtra (supra) was decided by the Division Bench, admittedly, Clause (a-1) of Section 27-A was not on the statute book, even then the Division Bench held that such persons were entitled to exemption from payment of professional tax. As such, in the submission of petitioners, on the bare text of Clause (a) of Section 27-A of the Act, they are entitled to claim exemption from payment of professional tax.

16. The Division Bench of this Court rejected the contention by referring to the various amendments to Section 27A from time to time specifically the amendment made to Clause (a) of Section 27-A of the Act. It is pointed out that the said Clause (a) has now been completely overhauled and substituted in toto. "The words "members of force" defined under the Army Act, 1950 now mean regular Army, Navy and Air Force or any part of any one or more of them. Regular Army has also been defined to mean the officers, junior commissioned officers, warrant officers, non-commissioned officers and other enrolled persons who, by their commission warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service. The petitioners do not fall in any of the part of this definition, therefore, they cannot be said to be members, of the forces under Section 3(xi) of the Army Act, 1950.

17. In the present case the petitioners being members of the Union consisting of employees in grade-C and D equivalent to Class-III and IV of Civilian employees working in the 25 Equipment Depot Air Force Station, South Deolali do not fall within the definition of the "members of the force" as defined in Clause (a) of Section 27-A of the Act. Hence, they are not entitled to any exemption in payment of professional tax as claimed. In view of the judgment of a Division Bench of the Court in Pratiraksha Mazdoor v. State of Maharashtra the contention of the petitioners cannot be accepted and the reliance placed on B.S. Raut v. State of Maharashtra, also delivered by Division Bench of this Court, is misplaced. The decision of the Division Bench of this Court in 'Pratiraksha Mazdoor v. State of Maharashtra' not being rendered per incuriam as it has been delivered in view of the amendment to Clause (a) in Section 27A, the same, sofar as this Court is concerned, is the last word on the subject and therefore binding.

Hence petition is dismissed.

Rule discharged. No orders as to costs.