Harsh Dev Singh, MLA vs State of Jammu & Kashmir

O.P. Sharma, J.—The petitioner is a member of the State Legislative Assembly. He has challenged the vires of Jammu and Kashmir

Essential Services Maintenance Ordinance and its use against the employees of the State Government who are on strike to seek enforcement of

the Government Order No. : 58-F of 1998 dated 5th Feb. 1998 providing the manner in which the arrears of pay and allowances were to be

released. The relief prayed by the petitioner is that the ordinance may be declared ultra-vires and non-est & consequently the arrest of the

Government employees and their suspension be nullified being without jurisdiction.

The contention of the petitioner is that since Section 5 of the Jammu & Kashmir Constitution Act, 1996 was omitted in November 1951, all

laws made by His Highness in exercise of the power conferred by this section have ceased to exist. However, this argument is no-longer res-

integra for this court in view of the judgement of the Apex Court in Rehman Shagoo and Others Vs. State of Jammu and Kashmir, , holding that:-

(11) Re, (3): -- The contention is that as Section 5 of the Constitution Act was repealed on November 17, 1951, the Ordinance which is stated to

have been passed under that section also came to an end. It is enough to say that there in no force in this argument. Clause (b) of Section 6 of the

Jammu and Kashmir General Clauses Act, No, XX of Section 1977, clearly saves the Ordinance. It is as follows:

Where this Act, or any Act made after the commencement of this Act, repeals any enactment, hitherto made of thereafter to be made, then, unless

a different intention appears, the appeal shall not........

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder;

It will be clear that the promulgation of the Ordinance was a ""thing duly done"" u/s 5 of the Constitution Act and the repeal of Section 5 of the

Constitution Act would thus leave the Ordinance which was promulgated thereunder entirely unaffected. The repeal of Section 5 can only mean the

withdrawal of that legislative power on and from the date of repeal. Anything done while the power subsisted cannot be affected by such repeal. A

law enacted under a Constitution Act does not lose its vitality and would continue even through there may be repeal of parts of the Constitution

Act under which it was enacted so long as the law is not inconsistent with the Constitution Act as it emerges after the amendment and repeal of

certain provisions thereof. It derives its binding force from the fact that it was within the competence of the Legislature when it was passed and

being permanent would continue till amended or repealed under the amended Constitution Act. We are, therefore, of opinion that the Ordinance

did not come to an end on the repeal of Section 5 of the Constitution Act and remained a valid piece of legislation in view of Section 6 (b) of the

Jammu and Kashmir General Clauses Act.

This is the last word on the subject and this argument is, therefore, negatived. It was next argued by the petitioner as well as learned counsel

assisting him that Ordinance must satisfy the test of reasonableness. Since the Ordinance vests the Government unguided discretion to declare any

service essential, therefore, Section 3 may be struck down. Although this is not the challenge in the petition yet this point has been allowed to be

argued. To be precise the contention is that the Ordinance was issued to provide maintenance of certain essential services. Since the Government

has applied the Ordinance to all its employees, therefore, the action of the Government is arbitrary. First of all the petitioner has not impugned any

Government order indicating whether the Ordinance has been made aplicable to all the services or to the striking employees. He that as it may, the

Government u/s 3 of the Ordinance has the power to apply it to all employment under it. Section 3 reads as under:

Section 3. Employment to which this Ordinance applies. --

This Ordinance shall apply to all employment under the Government and to any employment or class of employment which the Government being

of opinion that such employment or class of employment is essential for securing the defence of the State, the public safety, the maintenance of

public order or the efficient prosecution of war, or for maintaining supplies or services necessary to the life of the community may, by notification in

the Government Gazette, declare to be an employment to which this Ordinance applies.

So the discretion is with the Government to apply it to all employment under it. This discretion cannot be said to be arbitrary because all

employment under the Government is essential for securing the object sought to be achieved. Maintenance of public order and maintaining supplies

or services necessary to the life of the community are of wide amplitude embrassing of employment under the Government which is only for public

good. Moreover, Article 14 prohibits class legislation and not reasonable classification. While rejecting a similar challenge to the Jammu and

Kashmir Enemy Agent Ordinance, 2005 in the case of Rehman Shagoo (supra), their Lordships held that:-

(9) The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases. It is now well established

that;

While Article 14 forbids class legislation, it does not forbit reasonable classification for the purposes of legislation. In order, however, to pass the

test of permissible classification two conditions must be fulfilled namely (i) that the classification must be founded on an intelligible differentia which

distinguished persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to

the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or

according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object

of the Act under consideration. It is also well-established by the decisions of this Court that Article 14 condemns discrimination not only by a

substantive law but also by a law of procedure."" (See Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, .

In view of this the charge of arbitrariness is without any basis. It was next argued by Mr. Harsh Dev Singh that Section 5 is arbitrary because it

declares a person guilty without giving an opportunity of being heard. Even this argument is without any substance because Section 5 only makes

disobedience of Ordinance by an employee to whom the Ordinance applies an offence. He is no doubt declared guilty of the offence under the

Ordinance but the penalties and the procedure to hold him guilty is prescribed u/s 7. So no punishment can be imposed unless the procedure is

followed. Under this section a complaint has to be made by a servant of the Government or a person authorised by the Government. He is to be

tried by a Magistrate having jurisdiction in accordance with Code of Criminal Procedure. So right of hearing is not denied to him. This argument is

also without any substance.

It was next argued that hundred of employees have been arrested and their arrest is illegal as the Ordinance is invalid. However, Section 7 (4 of

the Ordinance) makes the offence congnizable and, therefore, the police has the power to arrest whose who are disobeying the Ordinance. It is for

them to apply for bail. In case the provisions of Criminal Procedure Code are not followed even then the grievance can be made before the

Magistrate concerned. This is also no ground to entertain the petition. Mr. Jalmeria wanted this Court to strike down the Ordinance on the ground

that State Legislature has not adopted it. However, it was for the Legislature to repeal the law if it was not good. In its wisdom the Legislature

allowed it to continue. This question has also been answered by a Full Bench of this Court in Rattan Lal Vs. State, holding that:-

The Ordinance contemplated u/s 38 lays down that the Council may, in case of emergency or where immediate legislation is required in any matter

affecting the peace and good Government of the State submit to His Highness an Ordinance and such Ordinance on being assented to by His

Highness shall have the force of law for a period not exceeding six months from the date of its promulgation. The plain reading of this section would

make it clear that an Ordinance issued under that section would be issued (1) on the recommendation of the Council; (2) when immediate

legislation was required; (3) it must be pertaining to the peace and good Government of the State; (4) after receiving the assent of His Highness it

would be law for six months. But the Essential Supplies (temporary Powers) Ordinance, 2003, was promulgated by His Highness under his

inherent authority as contained in Section 5 and, therefore, it had the force of law, unless repealed by any competent authority which would be

either His Highness himself or the State Legislature under the new Constitution of the State.

This argument is also not available to the petitioner.

Mr. Harsh Dev Singh made a forceful plea that the impugned Ordinance was promulgated to meet a particular situation as the preamble

indicates . Since the emergency no-longer exists the law cannot be enforced. The preamble reads as under:-

Preamble -- Whereas the Essential Services (Maintenance) Ordinance No. 1 of 2001 was by virtue of Section 38 of the Jammu and Kashmir

Constitution Act, 1996, to remain in force for a period of six months from the date of its promulgation, and the period of enfrocement of the said

Ordinance has since terminated:

And Whereas an emergency still exits which renders it necessary to make provision for the maintenance of certain essential services;

A similar argument was advanced before the Full Bench of this Court in the case of Rattan Lal (supra) challenging the vires of Jammu &

Kashmir Essential Supplies (Temporary Powers) Ordinance, 2003. While rejecting the argument the Full Bench held that:-

What is the crux of the matter is that who can decide whether the limited period for which this Essential Supplies (Temporary Powers) Ordinance,

2003, was promulgated has expired or not. In our opinion it is not the courts which can say that a particular emergency has either arisen or has

come to an end. It is for the authority in whom the power to declare the emergency is vested, to declare by any subsequent declaration that the

emergency has ceased. The Courts cannot substitute their opinion when the emergency should be deemed to have come to an end.

After reproducing paragraph from the judgment of the Apex Court in Makhan Singh Vs. State of Punjab (and connected appeals), the Bench

laid down as under:

Therefore, when once a legislation has been passed by a competent authority on the basis of an emergency, how long that emergency should

continue is a matter entirely within the discretion of that authority. The Courts cannot place their own interpretation or judge the matter

independently. Unless the emergency or, as in this case, the short period is expressly stated to have been over, the Ordinance will continue to be in

force. It is for the executive or for the State Legislature to examine the local conditions, the conditions relating to the control, the import, export,

production, etc. of foodgrains in order to make and keep the effective supply of the same for the public at large; they have the power under this

Act to control these factors. Therefore, this argument of Mr. Inderdass is of no avail to him.

The preamble being identical the ratio applies and as such this contention must also fail. Not only this the Hoarding and Profiteering Prevention

Ordinance (1943 AD) was also enacted u/s 5 of the Jammu & Kashmir Constitution Act, 1996. The Preamble of this Ordinance reveals that the

Ordinance was promulgated to meet an emergency which had arisen at that time. The vires of this Ordinance were upheld by a Division Bench of

this Court in 'Gh. Mohd. Mir and Anr. v. State of Jammu & Kashmir and Ors.', 1990 KLJ 621. Although the notification issued u/s 3 of the

Ordinance declaring all employment under the Government as essential services is not directly impugned but the point has been argued. Since

Section 3 has been found to be inter-vires the Constitution, the notification issued under this section cannot be challenged. Similar challenge to the

notification issued u/s 3 of the Hoarding and Profiteering Ordinance (supra) was upheld by the Division Bench in case of Gh. Mohd Mir (supra)

holding that :-

A Full Bench of this Court in Rattan Lal Vs. State, while dealing with a somewhat similar challenge to the provisions of the Essential Supplies

(Temporary Powers) Ordinance, 2003 also negatived a similar argument by holding that ""the Ordinance, 2003 was promulgated by His Highness

under the inherent authority as contained in Section 5 and, it had the force of law unless repealed by any competent authority which would be

either His Highness or the State Legistature under the Constitution of the State."" This question therefore, is no longer res integra so for as the State

is concerned. The impugned notification has, therefore, been validly issued u/s 3 of the Ordinance, which is validly in force.

So even this contention must fail and is rejected accordingly.

Mr. Jalmeria, however, laid great stress on the power of the Governor to issue Ordinance. According to him the Ordinance has a limited life and

if the life of the Ordinance issued by a Governor is limited, it cannot be unlimited in case of the impugned Ordinance. He also argued that on a

constitutional authority cannot do indirectly what it is not permitted to do directly. In support of this he relied on the dictum of the Apex Court in Dr

D.C. Wadhwa and Others Vs. State of Bihar and Others, which reads as under:-

It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision

inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would

be clearly a fraud on the constitutional provision.

How his dictum is relevant could not be explained by Mr. Jalmeria. The issue involved in the aforesaid case was whether Ordinance could be

repeated while the Legislature is in position. The Ordinance making power of the Governor is contained in Article 213 of the Constitution of India.

As the Ordinance impugned is not issued by the Governor, the question of mis-use of such power does not arise. Mr. Jalmeria made a pointed

reference to the land mark judgment of the Apex Court in S.R. Bommai and others Vs. Union of India and others etc. etc., . However, even this

judgment is not -relevant because the question involved and answered in the said case was the scope of judicial review in case a proclamation

issued u/s 356 is impugned. This judgment is not even distantly relevant to the issue involved which stand answered by a catena of decisions of this

Court as well the law laid down in the case of 'Rehman Shagoo' (supra).

Having found no merit in any of the submissions made on behalf of the petitioner I find no merit in this petition which is liable to be dismissed in

limine and it is dismissed accordingly.