Rajasthan High Court

Madan Lal Gurjar S/O Shri Kanhiya ... vs Chief Manager, Rajasthan State ... on 20 January, 2023

Bench: Sudesh Bansal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 18129/2022

Madan Lal Gurjar S/o Shri Kanhiya Lal Gurjar
                                                                       ----Petitioner
                                       Versus
Chief Manager, Rajasthan State Road Transport Corporation &
ors.
                                                                    ----Respondents

For Petitioner(s) : Mr. Suresh Kashyap For Respondent(s) : Mr. Anubodh Subodh Jain for respondents No.1

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

20/01/2023

1. On behalf of respondent No.1, the counsel has put in

appearance and seeks time to file reply.

2. Issue fresh notice to respondents No.2 and 3.

3. Counsel for petitioner submits that due to passing of the

impugned order dated 11.10.2022 dismissing reference

No.38/2021 before the Labour Court, Kota, other pending

references would also affect therefore, matter may be heard on

interim relief.

4. Heard the matter for interim relief.

5. Counsel for the petitioner submits that the Labour Court has

committed serious illegality and jurisdiction error in observing that

Section 2A(2) of the Industrial Disputes Act, 1947 (hereafter "the

Act of 1947") has been repealed by the Repealing and Amending

Act, 2016 w.e.f 06th May, 2016 and therefore the reference filed

under Section 2A(2) of the Act of 1947 is not maintainable.

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6. Counsel has pointed out that Section 4 of the Repealing and

Amending Act protects Section 2A(2) of the Act of 1947 and

because of such saving clause the provision of Section 2A(2) of

the Act of 1947 inserted in the original Act of 1947 by way of the

Industrial Disputes (Amendment) Act, 2010 does not come to an

end. He has placed reliance on Independent Schools'

Federation of India (Regd.) Vs. Union of India [Civil Appeal

No.8162 of 2012 and other connected matters decided on

29.08.2022].

7. Heard counsel for parties and perused the material available

on record.

8. On appreciation of provision 6A of the General Clauses Act,

1897, coupled with the Repealing and Amending Act, 2016, this

Court is of prima facie opinion that the Section 2A(2) of the Act of

1947 does not delete, even after commencement of the Repealing

and Amending Act, 2016. This Court finds support to its prima

facie conclusion from the judgment in case of Independent

Schools' Federation of India (Supra) wherein the Hon'ble Apex

Court relying on the judgment in case of Jethanand Betab Vs.

The State of Delhi [AIR 1960 SC 89] has observed as under:

"24. Section 4 of the Repealing and Amendment Act states that the repeal shall not affect any of the enactment in which the repealed enactment has been applied, incorporated or referred to. It also states that the Repealing Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred etc. This Court in Jethanand Betab v.

State of Delhi [AIR 1960 SC 89] had examined a similar provision of the Repealing and Amendment Act, 1952, whereby the Indian Wireless Telegraph (Amendment) Act, 1949 was repealed in its entirety. Reference was made to the decision of the Judicial Committee in Secretary of State for India in Council v. Hindusthan Co-operative

(3 of 6) [CW-18129/2022]

Insurance Society, Ltd. MANU/PR/0098/1931 and the principle that, where the repealing act states that the enactment thereof shall not affect any act in which the enactment has been applied, incorporated or referred to, means that there is an independent existence of the two acts and, therefore, even on the death of the amending act, its offspring survives in the incorporating act. This Court also referred to Halsbury's Law of England on the said aspect and the decision of the Calcutta High Court in Khuda Bux v. Manager, Caledonian Press [AIR 1954 Cal 484]. Relevant extract from the judgment in Jethanand Betab (supra) reads thus:

6. The general object of a repealing and amending Act is stated in Halsbury's Laws of England, 2nd Edn., Vol. 31, at p. 563, thus:

A statute Law Revision Act does not alter the law, but simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos.

In Khuda Bux v. Manager, Caledonian Press, Chakravartti, C.J., neatly brings out the purpose and scope of such Acts. The learned Chief Justice says at p. 486:

Such Acts have no Legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts.

The only object of such Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care,....

It is, therefore, clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and

(4 of 6) [CW-18129/2022]

excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. The object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949, along with similar Acts, which had served its purpose.

7. The next question is whether Section 4 of the Act of 1952 saved the operation of the amendments that had been inserted in the Act of 1933 by the repealed Act. The relevant part of Section 4 only saved other enactments in which the repealed enactments have been applied, incorporated or referred to. Can it be said that the amendments are covered by the language of the crucial words in Section 4 of the Act of 1952, namely, "applied, incorporated or referred to". We think not. Section 4 of the said Act is designed to provide for a different situation, namely, the repeal of an earlier Act which has been applied, incorporated or referred to in a later Act. Under that Section the repeal of the earlier Act does not affect the subsequent Act. The said principle has been succinctly stated in Maxwell on Interpretation of Statutes, 10th Edn., p. 406:

Where the provisions of one statute are, by reference, incorporated in another and the earlier statute is afterwards repealed the provisions so incorporated obviously continue in force so far as they form part of the second enactment.

So too, in Craies on Statute Law, 3rd Edn., the sama idea is expressed in the following words, at p. 349:

Sometimes an Act of Parliament, instead of expressly repeating the words of a Section contained in a former Act, merely refers to it, and by relation applies its provisions to some new state of things created by the subsequent Act. In such a case the Rule of construction is that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second.

(5 of 6) [CW-18129/2022]

The Judicial Committee in Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society, Ltd. endorsed the said principle and restated the same, a tp. 267,thus:

This doctrine finds expression in a common-form Section which regularly appears in the amending and repealing Acts which are passed from time to time in India. The Section runs: "The repeal by this Act of any enactment shall not affect any Act.... in which such enactment has been applied, incorporated or referred to". The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving Clause appears in the General clauses Act, Their Lordships think that the principle involved is as applicable in India as it is in this country.

It is, therefore, manifest that Section 4 of the 1952 Act has no application to a case of a later amending Act inserting new provisions in an earlier Act, for, where an earlier Act is amended by a later Act, it cannot be said that the earlier Act applies, incorporates or refers to the amending Act. The earlier Act cannot incorporate the later Act, but can only be amended by it. We cannot, therefore, agree with the view expressed by the Punjab High Court in Mohinder Singh v. Mst. Harbhajan Kaur and Darbara Singh v. Shrimati Karnail Kaur that Section 4 of the Repealing and Amending Act of 1952 applies to a case of repeal of an amending Act.

9. It may also be noticed that even respondents have not

pressed the Repealing and Amending Act, 2016 which came into

force from 06th May, 2016 for the purpose of deleting the provision

of Section 2A(2) of the Act of 1947 and has issued a certificate in

favour of petitioner on 25.09.2020 to institute a reference before

the Labour Court under Section 2A(2) of the Act of 1947, pursuant

to which the petitioner filed the reference on 05.04.2021.

(6 of 6) [CW-18129/2022]

10. For the aforesaid reasons and prima facie this Court is of

opinion that provisions of Section 2A(2) of the Act of 1947

inserted in the original Act of 1947 by way of the Industrial

Disputes (Amendment) Act, 2010 w.e.f. 18.08.2010 shall remain