AI Structured Summary
Not yet generated for this judgment
Judgment
S. Nagamuthu, J.—The constitutionality of Section 17(A) of the Industrial Disputes Act, 1947, (hereinafter referred to as ""the Act""), which
was introduced by the Industrial Disputes Amendment Act, 1956 and the consequential order passed u/s 17(A) of the Act by the Government of
Pondicherry in respect of an award made by the Special Industrial Tribunal, Pondicherry, under the Act are under challenge in this writ petition.
The Petitioners/Trade Union raised an industrial dispute regarding wage revision before the Special Industrial Tribunal and the Tribunal directed
the Respondents to revise the wages of the workmen, as detailed in the award. However, the Government of Puduchery, by the impugned order
issued u/s 17-A of the Act, has declined to enforce the same. Thus, the Petitioners are aggrieved by the same.
Section 17-A (1, 2, 3 & 4) of the Act reads as follows:
17A. Commencement of the award.- (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the
date of its publication u/s 17:
Provided that--
(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an
industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal,
that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the
appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall
not become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the proviso to Sub-section (1), the appropriate Government or the Central
Government may, within ninety days from the date of publication of the award u/s 17, make an order rejecting or modifying the award, and shall,
on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by
a State Government, or before Parliament, if the order has been made by the Central Governrnent.
(3) Where any award as rejected or modified by an order made under Sub-section (2) is laid before the Legislature of a State or before
Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under Sub-
section (2) is made in pursuance of a declaration under the proviso to Sub-section (1), the award shall become enforceable on the expiry of the
period of ninety days referred to in Sub-section (2).
(4) Subject to the provisions of Sub-section (1) and Sub-section (3) regarding the enforceability of an award, the award shall come into operation
with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award
becomes enforceable under Sub-section (1) or Sub-section (3), as the case may be.)
The main challenge to the constitutionality of Section 17(A) of the Act is on the ground that it is an affront to the independence of the judiciary,
which is one of the basic features of the Indian Constitution as laid down by a Constitution Bench of the Hon''ble Supreme Court in the famous
case in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, . But, it is the contention of the Respondent Pondicherry
Government that there is no such violation of basic structure, and therefore, the impugned provision cannot be held to be void. It is further
contended that the impugned provision falls within the ambit of the Legislative competence of the Parliament.
It is brought to the notice of the Court by the learned Counsel for the Petitioner that when a similar challenge was made to Section 17(A) of the
Act, the High Court of Andhra Pradesh in Telugunadu Workcharged Employees State Federation Vs. Government of India and Others, , has
struck down the same as unconstitutional. Relying on the same, the learned Counsel for the Petitioner would submit that on the very same grounds,
more particularly, on the ground of violence to the independence of judiciary, this Court may also declare the impugned provision as void.
It is contended by the Respondent Puduchery Government that the judgment of the High Court of Andhra Pradesh is not binding either on the
Government of Pondicherry or on this Court and at the most, it can only have a persuasive effect in the Union Territory of Pondicherry. It is further
added that the High Court of Andhra Pradesh cannot exercise any extra territorial jurisdiction so as to declare the impugned provision as void even
in the Union Territory of Pondicherry.
The learned Counsel on either side have advanced arguments at length taking me through various judgments of the Hon''ble Supreme Court as
well as other High Courts in order to substantiate their rival contentions, about which I shall make reference at the appropriate places of this order.
Undoubtedly, a statute made by the Parliament can be declared as void as provided in Article 13 of the Constitution of India, in the event the
Court comes to the conclusion that the same violates any of the fundamental rights guaranteed in the Constitution. Apart from the ame, the Hon''ble
Supreme Court in Kesavananda Bharathi v. State of Kerala (supra) case, while propounding a very popular concept, known as ""basic structure
concept"", has further held that if there is any violence to the basic structure of the Constitution either by any constitutional amendment or Statute,
then, the same shall be void.
Commencing from Kesavananda Bharathi v. State of Kerala (supra) case, the Hon''ble Supreme Court had several occasions to consider the
concept of basic structure of the constitution. The independence of the Judiciary and separation of powers between the Legislature, Executive and
Judiciary have been held to be basic structures of the constitution by the Hon''ble Supreme Court. In Paragraph No. 555 of the judgment in Smt.
Indira Nehru Gandhi Vs. Shri Raj Narain and Another, , the Hon''ble Supreme Court has observed as follows:
The Constitution is a document recording an act of entrustment and conveyance by the people of India, the political sovereign, of legal authority to
act on its behalf to a ""Sovereign Democratic Republic"". This Constitution has a basic structure comprising the three organs of the Republic; the
Executive, the Legislature, and Judiciary. It is through each of these organs that the Sovereign Will of the people has to operate and manifest itself
and not through only one of them. Neither of these three separate organs of the Republic can take over the function assigned to the other. This is
the basic structure or scheme of system of Government of the Republic laid down in this Constitution whose identity cannot, according to the
majority view in Kesavananda Bharathi v. State of Kerala (supra) case be changed even by restoring to Article 368.
Another Constitution Bench of nine Judges of the Hon''ble Supreme Court in Supreme Court Advocates-on-Record Association and another Vs.
Union of India, , while dealing with the concept of independence of the judiciary, has held as follows:
To say differently, it is the cardinal principle of the constitution that an independent judiciary is the most essential characteristic of a free society,
like ours.
In S.P. Gupta Vs. President of India and Others, , in paragraph No. 27, the Hon''ble Supreme Court has held as follows:
The questions are of great constitutional significance affecting the principle of independence of the judiciary which is a basic feature of the
Constitution and we would therefore prefer to begin the discussion by making a few prefatory remarks highlighting what the true function of the
judiciary should be in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, for
the principle of independence of the judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the
constitutional charter and its nourishment and sustenance from the constitutional values.
Later on, another Constitution Bench of Seven Judges of the Hon''ble Supreme Court in L. Chandra Kumar Vs. Union of India and others, , in
Paragraph No. 78, has held as follows:
The legitimacy of the power of Courts within constitutional democracies to review legislative action has been questioned since the time it was
first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated
important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would
indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the
judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down
laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement
age of Judges as well as the mechanism for selecting Judges to the superior Courts. The inclusion of such elaborate provisions appears to have
been occasioned by the belief that, armed by such provisions, the superior Courts would be insulated from any executive or legislative attempts to
interfere with the making of their decisions. The Judges of the superior Courts have been entrusted with the task of upholding the Constitution and
to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is
maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations.
In Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, , the Hon''ble Supreme Court has again reiterated that both the separation
of powers and independence of judiciary are basic structures of the constitution.
It has also been held in State of West Bengal and Others Vs. The Committee for Protection of Democratic Rights, West Bengal and Others,
that whenever the action of the legislature makes intrusion thereby causing violation to the basic structures, it is for the higher judiciary to invoke its
powers of judicial review under Article 226 of the Constitution of India to declare the same as void.
It has been held in a catena of the judgments of the Hon''ble Supreme Court that the Labour Court performs judicial functions, and therefore, it
is a Court. In this regard, I may refer to a judgment of the Hon''ble Supreme Court in The State of Maharashtra Vs. Labour Law Practitioners''
Association and Others, , wherein, it has been held as follows:
The Labour Court performs the judicial functions and it is a Court. The Labour Court adjudicates upon the disputes that, had it not been for the
Industrial Disputes Act, the Bombay Industrial Relations Act and the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, would have been within the jurisdiction of the ordinary civil Courts to decide, although the ordinary civil Courts may not be able to
grant all the reliefs that are contemplated by these Acts. The Labour Courts are, therefore, Courts and decide disputes that are civil in nature.
Therefore, an award made by the Labour Court under the provisions of the Act is an adjudicatory order and the same is enforceable. Since
the Labour Court has been held to be a Court, the award passed by the Court is to be executed and the same cannot be allowed to be nullified
either by the executive or by the legislature. At this juncture, I may refer to a recent judgment of the Hon''ble Supreme Court in Glanrock Estate
(P) Ltd. v. State of Tamil Nadu CDJ 2010 SC 795, wherein the Chief Justice of India (Hon''ble Mr. Justice S.H. KAPADIA), presiding over a
three Judges Bench, has made a deep survey of various ""doctrines"" ""concepts"" and ""principles"" relating to the limitations on the power of the
Parliament to enact any law or to amend the constitution. The paramount limitation is in respect of the basic structure of the Constitution. The
Hon''ble Supreme Court further proceeds to remind the distinction between constitutional law and ordinary law in a rigid constitution like ours. The
Hon''ble Supreme Court describes the distinction as follows:
The said distinction proceeds on the assumption that ordinary law can be challenged on the touchstone of the Constitution. Therefore, when an
ordinary law seeks to make a classification without any rational basis and without any nexus with the object sought to be achieved, such ordinary
law could be challenged on the touchstone of Article 14 of the Constitution. However, when it comes to the validity of a constitutional amendment,
one has to examine the validity of such amendment by asking the question as to whether such an amendment violates any over-arching principle in
the Constitution. What is over-arching principle? Concepts like secularism, democracy, separation of powers, power of judicial review fall outside
the scope of amendatory powers of the Parliament under Article 368. If any of these were to be deleted it would require changes to be made not
only in Part III of the Constitution but also in Articles 245 and three Lists of the Constitution resulting in the change of the very structure or
framework of the Constitution. When an impugned Act creates a classification without any rational basis and having no nexus with the objects
sought to be achieved, the principle of equality before law is violated undoubtedly. Such an Act can be declared to be violative of Article 14. Such
a violation does not require re-writing of the Constitution. This would be a case of violation of ordinary principle of equality before law.
From the above, it is manifestly clear that separation of powers falls within the purview of ""over-reaching principle"". Independence of judiciary
is yet another concept falling within the said principle. To cause any deviation from these basic concepts, the Parliament cannot even use its
amending power under the Constitution, as otherwise, it would amount to re-writing the Constitution abrogating the basic frame work of the same.
When that much of rigidity the constitution has, it is needless to say that the Parliament lacks power under the Constitution to enact any ordinary
law to violate the basic structure. Thus, the Parliament cannot either expressly or impliedly empower the executive by enacting a law in any manner
to negate the judicial pronouncements made by any of the organs of the judiciary. Any such law made by the Parliament is void. No amount of
hesitation can be shown by the higher judiciary to strike down the provisions of such enactment.
Now, having the above settled position of law in mind, let me turn to the facts of the present case. The impugned provision viz., Section 17-A
of the Act empowers the appropriate Government to decline to enforce an award or to modify the same. This, in my considered opinion, is a
power vested in the executive so as to sit in appeal over the Award of the Labour Court. Under our constitutional scheme, the executive has not
been empowered to exercise an appeal jurisdiction over the judicial verdicts of the Courts. By conferring such power on the executive u/s 17-A of
the Act, the Parliament, has in essence, caused a severe jolt to the independence of the judiciary. Apart from that, the celebrated concept of
separation of powers as ordained in the Constitution is also infringed by the impugned provision. Thus, the impugned provision is a serious threat to
the basic structure and if allowed to remain in operation, it will undoubtedly shake the foundation upon which our democracy rests. If judicial
verdicts are to be nullified by the executive, it will be a mockery of the very judicial system. The independence of the judiciary is a very precious
and fundamental concept, which needs to be preserved. Therefore, I cannot have any hesitation to hold that the impugned provision viz.. Section
17-A of the Act is void, and accordingly, it is liable to be struck down.
When a similar challenge was made before the High Court of Andhra Pradesh in Telugunadu Work charged Employees v. Govt. of India
(supra), Hon''ble Mr. Justice B. SUBHASHAN REDDY, (as he then was, who later became the Chief Justice of Madras High Court) has struck
down the same impugned provision on the ground of violation of basic structure of the constitution. I am in full agreement with the said conclusion
arrived by the High Court of Andhra Pradesh.
The next important question is as to whether this Court needs to strike down the impugned provision, when the same has already been struck
down by the High Court of Andhra Pradesh. It is to be noticed that before the High Court of Andhra Pradesh, the Government of India was a
party. The said judgment has become final. The cardinal of question is as to whether such striking down of the impugned provision bv the High
Court of Andhra Pradesh, has force even beyond the territorial jurisdiction of the High Court of Andhra Pradesh.
The learned Counsel on record have got divergent views on this point. On one side, it is submitted that the High Courts have got no extra
territorial jurisdiction to strike down a provision of a Central enactment beyond its territorial jurisdiction. According to the learned Counsel, though
the impugned provision has been struck down by the High Court of Andhra Pradesh, insofar as the Union Territory of Pondicherry or any other
State for that matter, the same shall have only a persuasive value and the same shall not bind either the Government of Pondicherry or the High
Court of Madras.
The view expressed by some of the learned Counsel is that once a particular provision in a Central enactment has been struck down by a High
Court holding that the same is void, as the same is a violation to the basic structure of the Constitution, it is no more in the Statute book for being
struck down again by yet another High Court. It is pointed out that under Clause (2) of Article 226 of the Constitution of India, the High Court has
got power to test the constitutionality of any of the provisions of the Central enactment and if it is once held by one High Court that it is
unconstitutional, the said provision will no more remain in the Statute book. Therefore, as of now, Section 17-A of the Act is not available in the
Statute book and so, the consequential order passed by the Government of Pondicherry in exercise of power under the said provision alone is
liable to be quashed, it is submitted.
In order to find out the correct legal position on this disputed question, I made a survey of several judgments of the Hon''ble Supreme Courtas
well as the High Courts. I also sought the help of the bar to assist me in this regard. But, I am not able to lay my fingers at any judgment of the
Hon''ble Supreme Court directly on this point. Nor the bar is able to bring to my notice any such judgment. However, the judgment of the Hon''ble
Supreme Court of three Judges in Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Another, may be useful to decide the said
question. In Paragraph Nos. 21, 22, 28 and 29 of the said judgment, the Hon''ble Supreme Court has held as follows:
A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded,
will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality
thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or
some of them which were implemented shall give rise to civil or evil consequences to the Petitioner. A writ Court, it is well settled would not
determine a constitutional question in vacuum.
The Court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary
Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect
throughout the territory of India subject of course to. the applicability of the Act.
emphasis supplied
Lt. Col. Khajoor Singh Vs. The Union of India and Another, whereupon the learned Counsel appearing on behalf of the Appellant placed
strong reliance was rendered at a point of time when Clause (2) of Article 226 had not been inserted. In that case the Court held that the
jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the
person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely,
the office of the authority who is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to
Section 20(c) of the Code of CPC as Article 226 of the Constitution thence stood stating:
... The concept of cause of action cannot in our opinion be introduced in Article 226, for by doing so we shall be doing away with the express
provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the
territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to person residing far away from New
Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional
amendment in Article 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Article 226, nor can the concept
of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it.
In view of Clause 2 of Article 226 of the Constitution of India now if a part of cause of action arises outside the jurisdiction of the High Court,
it would have jurisdiction to issue a writ. The decision in Lt. Col. Khajoor Singh v. Union of India and Anr. (supra) has, thus, no application.
As held by the Hon''ble Supreme Court, in view of Clause (2) of Article 226 of the Constitution of India, if once it is adjudged by a High Court
that a particular Parliamentary Act or a provision of the said Act is unconstitutional, in effect, it is as if the said Act/provision had never been in
force. As a matter of fact, in D.D. BASU''S COMMENTARY ON THE CONSTITUTION OF INDIA edited by Hon''ble Mr. Justice Y.V.
CHANDRACHUD, it has been summed up succinctly as follows:
Where a Statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it
for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused
obedience to it before the decision was made. ''And what is true of an Act void in toto is true also as to any part of an Act which is found to be
unconstitutional and which consequently has to be regarded as having never at any time been possessed of any legal force.
Of course, it is true that the question under consideration in these writ petitions was not directly raised and argued before the Hon''ble Supreme
Court and answered in Kusum Ingots & Alloys Ltd v. Union of India (supra) case. It is obiter dicta of the Hon''ble Supreme Court. But, such
obiter dicta is also expected to be followed by the High Courts. In this regard, I may refer to a judgment of the Hon''ble Supreme Court Sarwan
Singh Lamba and others Vs. Union of India and others, , wherein it has been held by a Constitution Bench that ""normally even an ""Obiter Dictum
is expected to be obeyed and followed"". Recently, in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, , the Hon''ble
Supreme Court, in Paragraph No. 26, has held as follows:
An Obiter Dicutm of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by
this Court. But, as far as this Court is concerned, though not binding, it does have clear persuasive authority.
In the light of the above legal position, applying the principles stated in Kusum Ingots & Alloys Ltd v. Union of India (supra), I am of the view
that the impugned provision viz., Section 17-A of the Industrial Disputes Act, 1947, is no more in force in the Union Territory of Pondicherry also
in pursuance of the judgment of the High Court of Andhra Pradesh in Telugunadu Work charged Employees v. Government of India (supra).
There can be no doubt that the judgment of the High Court of Andhra Pradesh, in which a has been adjudged that Section 17-A of the Act is
unconstitutional, will have effect throughout the Territory of India.
In view of the said position, I am of the view that it would be suffice for this Court to declare that Section 17-A of the Industrial Disputes Act,
1947, is void and the same is unenforceable in the Union Territory of Pondicherry also, and consequently, the impugned notification dated August
11, 2001 passed by the Pondicherry Government u/s 17-A of the Act is liable to be set aside.
In the result, all these writ petitions are allowed; it is hereby declared that Section 17-A of the Industrial Disputes Act, 1947 is void and
consequently the impugned notification dated August 11, 2001 passed u/s 17-A of the Industrial Disputes Act, 1947 by the Union Territory of
Pondicherry is set aside. No costs.