The Planters' Association of Tamil Nadu v. The Secretary to Government, Labour & Employment Department, Government of Tamil Nadu

ORDERWhether the action of the State Government in notifyingSection 18 of the Plantations Labour Act, 1951 (for short PL Act)and directing appointment of Welfare Officers in respect ofplantations engaging 300 or more workers by virtue of the impugnednotification, dated 28.12.2006 is liable to be set aside by thiscourt ? Is the issue involved in this writ petition.2.Section 18 of the PL Act reads as follows :“18. Welfare officers.—(1) In every plantationwherein three hundred or more workers are ordinarilyemployed the employer shall employ such number ofwelfare officers as may be prescribed.(2)The State Government may prescribe the duties,qualifications and conditions of service of officersemployed under sub-section (1).”(Emphasis added)3.The State Government by G.O.Ms.No.65, Labour and EmploymentDepartment, dated 25.04.2005 had issued the following notificationin the Tamil Nadu Government Gazette which reads as follows :NOTIFICATIONThe following draft of an amendment to the Tamil NaduPlantations Labour Rules, 1955, which it is proposedto issue, in exercise of the powers conferred by sub-section (1) of section 43 read with section 18 of thePlantation Labour Act, 1951 (Central Act LXIX of1951) is hereby published for information of all thepersons likely to be affected thereby as required bysub-section (1) of section 43 of the said Act.2. Notice is hereby given that the draft amendmentwill be taken into consideration on or after theexpiry of six weeks from the date of publication ofthis Notification in the Tamil Nadu GovernmentGazette and that any objection or suggestion whichmay be received from any person with respect theretobefore the expiry of the aforesaid period will beconsidered by the Government of Tamil Nadu. Objectionor suggestion, if any, should be addressed to thePrincipal Secretary to Government, Labour andEmployment Department, Fort St.George, Chennai-600009, through the Commissioner of Labour, Chennai-600 006.”4.Subsequently, after examining the objections from differentquarters including from that of the petitioners, the State ofTamil Nadu by G.O.Ms.No.183, Labour and Employment Department, https://hcservices.ecourts.gov.in/hcservices/ dated 28.12.2006 had issued the following final notification inthe Government gazette. It reads as follows :ABSTRACTPlantation Labour Act, 1951(Central Act 69 of 1951) and the TamilNadu Plantation Labour Rules 1955-Amendment to Tamil NaduPlantation Labour Rules 1955-Preliminary Notification-Confirmed.LABOUR AND EMPLOYMENT (I2) DEPARTMENTG.O.Ms.No.183Dated: 28.12.2006Read:-1.G.O.Ms.No.65, Labour and Employment, dated 25.4.2005.2.Government letter No.22834/I2/2005-1, dated 22.6.2005.3.From the Commissioner of Labour, Letter No.P1/19450/2005,dated 23.6.2005, 8.11.2005 and 23.8.2006.ORDER:In the G.O.first read above, a preliminary Notification forappointment of Welfare Officers in Plantations prescribingqualifications and their duties, were issued and objections andsuggestions were invited from the persons, Associations etc.likely to be affected by such proposals.2.The Commissioner of Labour, in his letter third read above, hasstated that certain objections and suggestions were received fromthe Madurai District National Plantation Workers Union and thePlantations Association of Tamil Nadu. No objections/suggestionswere received from other Plantation Managements and Unions.3.After examining the objections and suggestions with regard topreliminary Notification, the Government have decided to confirmthe preliminary Notification.4.The appended Notification will be published in the Tamil NaduGovernment Gazette both in English and Tamil.5.The Secretary to Government, Tamil Development, Culture andReligious Endowment (Translation) Department, Secretariat,Chennai-9 is requested to send the Tamil translation of theNotification to the Works Manager, Government Central Press,Chennai-79.(BY ORDER OF THE GOVERNOR)RAMESH KUMAR KHANNA,SECRETARY TO GOVERNMENT (Emphasis added)5.Pursuant to the notification, the rules relating toappointment of Welfare Officers were incorporated as Rules 85 to90 under Chapter VIII of the Tamil Nadu Plantations Labour Rules,1955. The first petitioner representing plantation owners covered https://hcservices.ecourts.gov.in/hcservices/ by the notification along with one plantation management havefiled the present writ petition challenging the Government Orderin directing plantations to appoint Welfare Officers in case theyemploy 300 or more workers in terms of the rules so framed. 6.When the writ petition came up on 18.9.2007, this courtwhile ordering notice to the respondents had granted an interiminjunction for a period of 12 weeks. Subsequently, the writpetition was admitted on 17.11.2011. But, however the interimorder was not extended further. On notice from this court, thethird respondent Central Government has filed a counter affidavit,dated 28.9.2011. On behalf of the first respondent State of TamilNadu, a detailed counter affidavit, dated 08.12.2010 has beenfiled. Rejoinders dated 12.02.2012 in respect of both counteraffidavits were also filed.7.Heard the arguments of Mr.Vijay Narayan, learned SeniorCounsel leading Mr.R.Parthiban, learned counsel appearing forpetitioners, Mr.V.Subbiah, learned Special Government Pleader forfirst and second respondents and Mr.C.R.Dhasarathan, learnedCentral Government Standing Counsel for third respondent. 8.The contentions raised on behalf of the plantation ownerswere threefold. The first was that the Plantations Labour Act wasenacted in the year 1951 and was brought into force with effectfrom 1.4.1954. For the last 52 years, this provision was not giveneffect to as the management and the workers were satisfied withthe working of the welfare provisions provided under theenactment. Even though certain amendments were made to notify theprovisions in the year 1981, but subsequently it was given up.Therefore, having not allowed the provisions to come into forcefor the last 52 years (wrongly mentioned as 55 years by thepetitioners), the “principle of desuetude” will have to beobserved as the provisions were never implemented. All welfareactivities were undertaken through established methods even attimes some of the unions have opposed to bring into force of theAct.9.The second objection was that under Section 43(3) of the PLAct, all rules made under this Act, if made by any Governmentother than the Central Government, will be subject to the priorapproval of the Central Government. Since prior approval of theCentral Government is required, Section 23 of the General ClausesAct, 1897 was pressed into service. The procedure therein willhave to be complied with and Section 23(4) was not followed in itsletter and spirit. Thirdly, the delegation made under Section 18is excessive. 10.Before proceeding to deal with the merits of thecontentions, it is necessary to refer to the plight of theplantation labours over the years. https://hcservices.ecourts.gov.in/hcservices/

10.1.Tea gardens like other industrial establishments mustdepend on offering sufficient attractions in order to maintaintheir labour force. The emigrant must be convinced that Assamholds out the opportunities of a better life than is open to himin his home land. If he is not convinced, nothing else will securea flow of immigrants; if he is convinced it will be difficult tokeep him away. [See :Royal Commission on Labour in India, 1929]10.2.The agony of plantation workers (otherwise known as TeaGarden labours) was sought to be remedied only after India becamea republic in the form of Plantation Labour Act, 1951. The Act forthe first time attempted to provide certain minimum safeguards inrespect of health and welfare of Plantation Labours. The Actprovides for certain statutory service conditions includinghousing, hours of work, weekly holidays, leave including annualleave, maternity leave etc. Despite these safeguards, wagespayable to workmen were largely left to collective bargaining,failing which notified minimum wages were paid to these workmen. 10.3.In view of the large scale complaints about the plight ofthe labours, the Central Government appointed the First NationalLabour Commission presided by Justice P.B.Gajendragadkar (formerChief Justice of the Supreme Court of India). The said Commissionby its extensive hearings covered all industries (both public andprivate sectors) in India and submitted its report in the year1969. With reference to the position of casual labour in respectof several industries including the plantations came to the noticeof the Labour Commission as found in paragraph 29.26, which is asfollows:"...During the course of our inquiriesmany unions complained that employersarbitrarily terminated the services of casualworkers to prevent them from completing theprescribed period of service and thus deprivedthem of the benefits. We have also come acrosscases particularly in smaller establishmentswhere within a week of termination of service,the same person is engaged afresh for the samejob, making the employer's intention obvious."10.4.The Commission in its recommendation in paragraph 29.29had recommended as follows:"29.29: ...We consider the prevailingpractice of discontinuing employment of a casualworker for short periods and again re-employinghim to debar him from enjoying the benefits of apermanent worker as pernicious. We recommend thatif employment is discontinued for a short periodand the worker is re-employed, this short periodshould not be treated as a break in service. Wealso recommend that after a casual worker has https://hcservices.ecourts.gov.in/hcservices/ completed a stipulated period of service, heshould be allowed the same benefits which is apermanent worker enjoys."10.5.The National Labour Commission had also noted thefunctions of the Welfare Officers in various establishmentsincluding plantations and in paragraph 10.40 it was observed asfollows :Welfare Officers :10.40.The statutory provisions for theappointment of a welfare officer in factories,mines and plantations, were made to ensure thatthe managements appointed a person exclusively tolook after the welfare needs of their workers andalso to help them in discharging their statutoryobligations in respect of welfare measures. Inorder to ensure that the welfare amenities,statutory or otherwise, are provided and organisedproperly, such officers should form part of theadministration. The management should ensure thatonly such officers are appointed to look afterwelfare activities as are properly qualified tohold these posts and have aptitude for welfarework. The Welfare Officer should not be made towork as an agency to handle labour disputes onbehalf of management.”(Emphasis added)11.May be at the relevant time, the Commission would have beenmade to believe that Welfare Officers were functioning inplantations as required under law. But the fact of the matter wasthat there were no Welfare Officers at least in South Indiaincluding the State of Tamil Nadu. This fact was not brought tothe notice of the National Labour Commission and it had presumedthat such officers were functioning. 12.The circumstances under which the notification came to bemade is wet out in the counter affidavit filed by the CentralGovernment and in paragraph 8 of the counter, it was averred asfollows :“8.I specifically deny the allegation of thepetitioner that without prior approval of theCentral Government, the State Government has issuedG.O.Ms.No.183, Labour and Employment Departmentdated 28.12.2006. In fact before issuing the ordersthe Government of Tamilnadu have addressed theGovernment of India vide Government LetterNo.29919/12/2003-9, Labour and EmploymentDepartment, dated 14.12.2004 for approval. And aftergetting approval of the Government of India,Ministry of Labour and Employment, New Delhi inletter No.S-660 12/1/05-1R(pt) dated 28.02.2005, the https://hcservices.ecourts.gov.in/hcservices/ Tamilnadu Government have issued preliminarynotification in G.O.Ms.No.65 Labour and Employment(12) Department dated 25.04.2005 framing rules forappointment of Labour Welfare Officers. Against theabove orders the Government issued in G.O.Ms.No.183Labour and Employment Department dated 28.12.2006.”13.The State Government in their counter affidavit has set outthe reasons for notifying the provisions and in paragraph 10 ofthe counter, it was averred as follows :“10....it is submitted that Section 18 of thePlantations Labour Act 1951 provides for theappointment of welfare officers in plantations wherein300 or more workers are employed. Section 18(2) of theAct gives powers to the State Government to prescribethe duties, qualifications and conditions of serviceof the welfare officers. Since, no rules were framedby the State Government for the appointment of WelfareOfficers in Plantations wherein 300 or more workersare employed and to frame necessary draft rules forappointment of welfare officers in plantations wherein300 or more workers are employed by prescribing theduties, qualifications and conditions of service ofthe welfare officers as per Section 18 of thePlantations Labour Act 1951 based on that the StateGovernment has addressed to the Government of Indiafor approval of the draft rules and issued preliminarynotification in G.O.Ms.No.65 Labour and Employment(12) Department, dated 25.04.2005 framing rules forappointment of Labour welfare officers after gettingthe approval of Government of India, Ministry ofLabour and Employment, New Delhi in Letter No.S-66012/1/05-IR (PL) dated 28.02.2005. The Ministry ofLabour and Employment have no objection for insertionof chapter VIII on welfare officers in the Tamil NaduPlantation Labour Rules, 1955 as proposed by theGovernment of Tamil Nadu and the above order issuedwith the approval of Minister of Labour andEmployment. Later, considering the objections andsuggestions received from the union as well asmanagements, it has confirmed the preliminarynotification in G.O.Ms.No.183 Labour and EmploymentDepartment dated 28.12.2006. The petitioner's pleathat there are no specific or demonstrable reasons forproviding for welfare officers considered unnecessaryfor 55 years was suddenly considered to be necessaryis not correct. It is submitted that during the year2003 to 2007 out of total 24,734 number of inspectionsmade by the Inspector of Plantations, 1533contraventions were found and 916 number ofprosecutions were launched in the Courts. Apart from https://hcservices.ecourts.gov.in/hcservices/ this, regular complaints are also received fromindividual workers and Unions. The protection of theworkers interest, the welfare and prevention ofindustrial conflicts are the prima facie reasons forthe appointment of Welfare Officers.”14.Mr.Vijay Narayan, learned Senior Counsel in support of hiscontentions referred to the judgment of the Supreme Court inMunicipal Corpn. for City of Pune v. Bharat Forge Co. Ltd.,reported in (1995) 3 SCC 434 = AIR 1996 SC 2856 and in paragraphs31 to 34 and 36 it was observed as follows :“31....... Lord Mackay's view in Brown v. Magistrateof Edinburgh9 has also been noted, which is as below:“I hold it clear in law that desuetude requiresfor its operation a very considerable period,not merely of neglect, but of contrary usage ofsuch a character as practically to infer suchcompletely established habit of the communityas to set up a counter law or establish aquasi-repeal.”A perusal of this judgment shows that Lord Mackayventured to prefer the Scottish system to that ofEngland regarding which Lord Eldon, as a member ofHouse of Lords, had stated thus in Johnstone v.Scott10 at p. 285:“The English lawyer feels himself much at aloss here; he cannot conceive at what period oftime a statute can be held as commencing togrow in desuetude, nor when it can be held tobe totally worn out. All he can do is to submitto what great authorities have declared the Lawof Scotland to be.”Lord Mackay thereafter enunciated the afore-quotedtest of desuetude for it to permit quasi-repeal.32.It would be useful to note what has been stated inthis regard in the chapter headed “Repeal andDesuetude of Statutes” by Aubrey L. Diamond, printedin Current Legal Problems (1975), Vol. 28 at pp. 107to 124. Diamond has quoted on this subject what LordDenning, M.R. observed in Buckoke v. Greater LondonCouncil11 at p. 668, which reads:“It is a fundamental principle of ourConstitution, enshrined in the Bill of Rights,that no one, not even the Crown itself, has‘the power of dispensing with laws or theexecution of laws’. But this is subject tosome qualification. When a law has become adead letter, the police need not prosecute,nor need the Magistrates punish. They can givean absolute discharge.” https://hcservices.ecourts.gov.in/hcservices/

33. Diamond has thereafter referred to the Scottishapproach to desuetude at pp. 122 and 123 and hasnoted some decisions wherein an Act of ScottishParliament was not enforced because of desuetude. Itwould be of interest to note that when an argumentwas advanced that the particular Act (which was of1606) had been left unrepealed by the Statute Law(Repeals) Act, 1906, and must, therefore, be regardedas still in force, the reply given by one of the LawLords was that “it was for the Court and not for theStatute Law Revision (sic Repeal) Act to determinewhether Act of 1606 was or was not in desuetude”.34.Though in India the doctrine of desuetude does notappear to have been used so far to hold that anystatute has stood repealed because of this process,we find no objection in principle to apply thisdoctrine to our statutes as well. This is for thereason that a citizen should know whether, despite astatute having been in disuse for long duration andinstead a contrary practice being in use, he isstill required to act as per the “dead letter”. Wewould think it would advance the cause of justice toaccept the application of doctrine of desuetude inour country also. Our soil is ready to accept thisprinciple; indeed, there is need for itsimplantation, because persons residing in free India,who have assured fundamental rights including whathas been stated in Article 21, must be protected fromtheir being, say, prosecuted and punished forviolation of a law which has become “dead letter”. Anew path is, therefore, required to be laid andtrodden.36.Coming to 1918 Notifications, we find materials onrecord to show that it has not been implemented tilldate; and in fact what has been done was contrary,and that too for long period. So, we hold thatNotifications Nos. 4162 and 4163 dated 17-6-1918 hadstood repealed ‘quasily’ by the time new Octroi Rulescame to be framed in 1963, which were applied torealise octroi from the respondents......”15.He further referred to the judgment of the Supreme Court inCantonment Board v. M.P. SRTC reported in (1997) 9 SCC 450 = AIR1997 SC 2013. In paragraph 16, the Supreme Court had observed asfollows :“16.Coming to the conclusion of the applicabilityof the doctrine of desuetude Mr Lekhi, the learnedSenior Counsel strongly relied upon the decision ofthis Court in Municipal Corpn. for City of Pune v.Bharat Forge Co. Ltd.6 and submitted that the https://hcservices.ecourts.gov.in/hcservices/ provisions of the Motor Vehicles Taxation Act must beheld to be of disuse as no grant as provided inSection 7 of the Taxation Act has ever been made atany point of time after the enactment of the said Actin 1947. This contention is wholly unsustainable inlaw inasmuch as we are not concerned with thequestion of grant to local authorities and CantonmentBoards as provided under Section 7 of the TaxationAct but we are concerned with the leviability of taxon motor vehicles under Section 3(2) of the TaxationAct. It is nobody's case that no tax was being leviedon motor vehicles which is used or kept for use underSection 3(2) of the Madhya Pradesh Motor VehiclesTaxation Act, 1947. That apart to apply the principleof desuetude it is necessary to establish that thestatute in question has been in disuse for long andthe contrary practice of some duration has evolved.In other words to make the aforesaid principle applicable in the case in hand it is required to beestablished that the provisions of Section 3(2) ofthe Motor Vehicles Taxation Act has been in disusefor a long period and that the imposition of tax onentry of motor vehicles into the Cantonment limit hasbeen in operation for a fairly long period. Neitherof these two ingredients has been satisfied in thecase in hand and therefore the aforesaid principle ofdesuetude is of no application to the case in hand.”16.A further reference was also made to the judgment of theSupreme Court in State of U.P. v. Hindustan Aluminium Corporationreported in (1979) 3 SCC 229 = AIR 1979 SC 1459 and in paragraphs65 and 66, it was observed as follows :“65......But whether a piece of legislation hasspent itself or exhausted in operation by theaccomplishment of the purpose for which it waspassed, or whether the state of things contemplatedby the enactment has ceased to exist, areessentially questions of fact for the Legislatureto examine, and no vested right exists in a citizento ask for a declaration that the law has beenimpliedly repealed on any such ground.66.It has to be appreciated that the power tolegislate is both positive in the sense of making alaw, and negative in the sense of repealing a lawor making it inoperative. In either case, it is apower of the Legislature, and should lie where itbelongs. Any other view will be hazardous and maywell be said to be an encroachment on thelegislative field. In an extreme and a clear case,no doubt, an antiquated law may be said to havebecome obsolete — the more so if it is a penal law https://hcservices.ecourts.gov.in/hcservices/ and has become incapable of user by a drasticchange in the circumstances. But the Judge of thechange should be the Legislature, and courts arenot expected to undertake that duty unless thatbecomes unavoidable and the circumstances are soapparent as to lead to one and only one conclusion.This is equally so in regard to the delegated orsubordinate legislation.”(Emphasis added)This judgment far from supporting the stand of the petitioners itis really against them.17.However, this court is not inclined to agree with theapplication of “principle of desuetude” as being applied to thiscourt since the provision has not been given effect to for thelast 52 years. The Plantations Labour Act is a Central enactment.The power of implementing the Act is left to the State Government.It is for the State Government being a delegate which has toconsider the objective situation for implementing the particularprovision. Merely because there is delay either due to reasons foradministration or there were different forces at work whichforestalled the implementation of a particular provision, thelegislation will not become a dead letter in the statute book. Byapplying the “principle of desuetude”, this court cannot kill awelfare measure enacted by the act of Parliament. Unless theParliament repeals the provisions, the question of applying theprinciple of desuetude to the impugned provisions will not arise. 18.As per Section 18(2) of the PL Act, it is for the StateGovernment to prescribe duties, qualifications and conditions ofservice of welfare officers. Depending upon the conscious level ofworking class and the alertness of the State Government, the saidprovision has been given effect to in many States such as Kerala,West Bengal and several other northern States. Therefore, onecannot be heard to contend that Section 18 only applies to NorthIndia as well as South West India, but not to Tamil Nadu since ithad not been implemented by the delegate, i.e., the StateGovernment for the last 52 years. The decisions cited by thelearned Senior counsel for the petitioners have no application tothe case on hand. On the other hand, there are several provisionseven in the PL Act which are left to the State Government to framerules. It is not as if only Section 43 is the relevant provisionfor making rules. On the other hand, Sections 3-D, 5, 16, 16-G, 18and 32 also regulates the State Government to make rules inrespect of giving effect to those provisions, Section 43 which isthe rule making power, is a general provision and the specificprovision in this regard is only Section 18. 19.If a provision made under an Act was not brought into forceand whether an aggrieved person can move the court came to beconsidered by the Supreme Court in A.K. Roy v. Union of Indiareported in (1982) 1 SCC 271. The Supreme Court held that no court https://hcservices.ecourts.gov.in/hcservices/ can give direction either to enforce or not to enforce provisionsof an Act and in such circumstances, no writ of mandamus will lieagainst a delegate to bring into force a particular law. The saidjudgment came to be quoted with approval subsequently in AeltemeshRein v. Union of India reported in (1988) 4 SCC 54 and inparagraphs 5 and 6 it was observed as follows :“5.It is no doubt true that the Central Government hasbeen given the power by Parliament to appoint the dateon which any of the provisions of the Act shall comeinto force by sub-section (3) of Section 1 of the Actand the said provision does not lay down any objectivestandards for the determination of the date on whichany of the specific provisions of the Act should bebrought into force. The question for consideration iswhether this Court can issue a writ in the nature ofmandamus to the Central Government to bring Section 30of the Act into force. Dealing with a similar questiona Constitution Bench of this Court in A.K. Roy v.Union of India2 has taken the view that a writ in thenature of mandamus directing the Central Government tobring a statute or a provision in a statute into forcein exercise of powers conferred by Parliament in thatstatute cannot be issued. Chandrachud, C.J., who spokefor the majority of the Constitution Bench hasobserved at pp. 314 to 316 of the Report thus: [SCCpp. 310-12: SCC (Cri) pp. 188-89, paras 51 and 52]“But we find ourselves unable to intervene ina matter of this nature by issuing a mandamusto the Central Government obligating it tobring the provisions of Section 3 into force.Parliament having left to the unfetteredjudgment of the Central Government thequestion as regards the time for bringing theprovisions of the Forty-fourth Amendment intoforce, it is not for the court to compel theGovernment to do that which, according to themandate of Parliament, lies in its discretionto do when it considers it opportune to do it.The executive is responsible to Parliament andif Parliament considers that the executive hasbetrayed its trust by not bringing anyprovision of the amendment into force, it cancensure the executive. It would be quiteanomalous that the inaction of the executiveshould have the approval of Parliament and yetwe should show our disapproval of it byissuing a mandamus.... But, Parliament hasleft the matter to the judgment of the CentralGovernment without prescribing any objectivenorms. That makes it difficult for us tosubstitute our own judgment for that of the https://hcservices.ecourts.gov.in/hcservices/ Government on the question whether Section 3of the Amendment Act should be brought intoforce.... It is for these reasons that we areunable to accept the submission that byissuing a mandamus, the Central Governmentmust be compelled to bring the provisions ofSection 3 of the Forty-fourth Amendment intoforce....If only the Parliament were to lay down anobjective standard to guide and control thediscretion of the Central Government in thematter of bringing the various provisions ofthe Act into force, it would have beenpossible to compel the Central Government byan appropriate writ to discharge the functionassigned to it by Parliament.”6.The effect of the above observations of theConstitution Bench is that it is not open to thisCourt to issue a writ in the nature of mandamus to theCentral Government to bring a statute or a statutoryprovision into force when according to the saidstatute the date on which it should be brought intoforce is left to the discretion of the CentralGovernment. As long as the majority view expressed inthe above decision holds the field it is not open tothis Court to issue a writ in the nature of mandamusdirecting the Central Government to bring Section 30of the Act into force. ......”20.Similarly, Section 2(J) of the Industrial Disputes Act,1947 which was introduced as early as in the year 1982 by theParliament vide Amendment Act 46 of 1982 and which defines theterm “industry”, is yet to be brought into force. When the matterwas brought to the notice of the Court, the Supreme Court merelyobserved that it is for the Central Government to bring it intoforce and did not give any such direction. Therefore, the SupremeCourt in Des Raj v. State of Punjab reported in (1988) 2 SCC 537in paragraph 13 had observed as follows :“13.....We have not been able to gather as to why evensix years after the amendment has been brought to thedefinition of Industry in Section 2(j) of the Act thesame has not been brought into force. This Court onmore than one occasion has indicated that the positionshould be clarified by an appropriate amendment andwhen keeping in view the opinion of this Court, thelaw was sought to be amended, it is appropriate thatthe same should be brought into force as such or withsuch further alterations as may be considerednecessary, and the legislative view of the matter ismade known and the confusion in the field is clearedup.” https://hcservices.ecourts.gov.in/hcservices/

21.Even if workers insisted upon bringing into force Section18, the same could not have been done by the courts. Therefore,merely because there was delay in notifying the provisions by theState Government, will not enure to the benefit of the planters ofthe Tamil Nadu. On the other hand, it is their own admission thateven unions such as HMS, UTUC and INTUC never agreed for deletionof Section 18 of the PL Act. A progressive labour enactment evenif enacted by the Parliament, the implementation of the samedepends upon the level of consciousness of workers of a particularState, the collective pressure that can be exercised by theworking class including their trade unions. Merely because theprovision had not been notified for the last 52 years and anabortive attempt made during 1981 was given up, cannot invalidatethe impugned provision. It will be ridiculous to note that theprovisions apply only to majority of estates in north India, butit will not apply to Tamil Nadu. The said argument is misconceivedand hence rejected.22.The second argument made by the learned Senior Counsel forthe petitioner is that before approval was granted by the CentralGovernment, the principle enunciated in Section 23 of the GeneralClauses Act, 1897 was not complied with, inasmuch as theirobjection was not considered by the Central Government before thegrant of approval. Hence Section 23 of the General Clauses Act,1897 was pressed into service which reads as follows :“23.Provisions applicable to making of rules or bye-lawsafter previous publication.—Where, by any 1[Central Act]or Regulation, a power to make rules or bye-laws isexpressed to be given subject to the condition of therules or bye-laws being made after previous publication,then the following provisions shall apply, namely:—(1) the authority having power to make the rules orbye-laws shall before making them, publish a draft ofthe proposed rules or bye-laws for the information ofpersons likely to be affected thereby;(2) the publication shall be made in such manner asthat authority deems to be sufficient, or, if thecondition with respect to previous publication sorequires, in such manner as the 2[Governmentconcerned] prescribes;(3) there shall be published with the draft a noticespecifying a date on or after which the draft will betaken into consideration;(4) the authority having power to make the rules orbye-laws, and, where the rules or bye-laws are to bemade with the sanction, approval or concurrence ofanother authority, that authority also, shallconsider any objection or suggestion which may bereceived by the authority having power to make the https://hcservices.ecourts.gov.in/hcservices/ rules or bye-laws from any person with respect to thedraft before the date so specified;(5) the publication in the Official Gazette of a ruleor bye-law purporting to have been made in exerciseof a power to make rules or bye-laws after previouspublication shall be conclusive proof that the ruleor bye-law has been duly made.”(Emphasis added)23.In support of the said proposition, the learned Seniorcounsel placed reliance upon a judgment of the Supreme Court inGhaziabad Development Authority v. Delhi Auto & General Finance(P) Ltd., reported in (1994) 4 SCC 42 = AIR 1994 SC 2263 andreferred to paragraph 6 of the said judgment which reads asfollows :“6.....Section 57 of the U.P. Act provides for themaking of bye-laws and says that “the authority may,with previous approval of the State Government, makebye-laws ...”. It is obvious that the provisionempowers the authority to make bye-laws only with theprevious approval of the State Government. This beingso, there can be no question of any deemed previousapproval of the bye-laws. Merely because theauthority chooses to follow certain procedure in theabsence of any bye-laws which happens to correspondwith the draft bye-laws awaiting approval of theState Government, the draft bye-laws do not becomethose framed under Section 57 of the Act with theexpress approval. .......”(Emphasis added) 24.He further referred to a judgment of the Supreme Court inAshok Kumar Sahu v. Union of India, reported in (2006) 6 SCC 704 =AIR 2006 SC 2879 and in paragraphs 18,19 and 21, the Supreme Courthad observed as follows :“18.The expression “approval” presupposes anexisting order. “Acceptance” means communicatedacceptance. A distinction exists between theexpressions “approval” and “acceptance”. Whereas in thelatter, an application of mind on the part of thecompetent authority is sine qua non, approval of anorder only envisages statutory entitlement.......19.We are, however, not oblivious of the fact thatunder certain circumstances, the expression, “approval”would mean to accept as good or sufficient for thepurpose of intent. Ratification is noun of the verb“ratify”. It means the act of ratifying, confirmation,and sanction. The expression “ratify” means to approveand accept formally. It means to conform, by expressingconsent, approval or formal sanction. “Approve” meansto have or express a favourable opinion of/to accept as https://hcservices.ecourts.gov.in/hcservices/ satisfactory. In the instant case, there was noquestion of any ratification involved as wronglyassumed by the High Court. (See Maharashtra StateMining Corpn. v. Sunil5.)21.......if the Central Government intended toconsider the matter from the latter angle, it wouldhave communicated the same to the appellant directly.It did not do so. It approved the action of the JointCadre Authority. It directed the State of Assam toissue orders/notifications accordingly. As the offer ofthe appellant was to be accepted by the CentralGovernment and communicated to him, the issuance ofnotification dated 8-9-1997 by the Governor of Assamaccepting the said offer is bad in law.”25.Reference was also made to a judgment of the Supreme Courtin U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing SocietyLtd., reported in 1995 Supp (3) SCC 456 = AIR 1996 SC 114 whereindistinction between “prior” and “previous” was made and inparagraph 6, it was observed as follows:“6..........“We are conscious that the word ‘prior’or ‘previous’ may be implied if the contextualsituation or the object and design of the legislationdemands it.......”26.With reference to the second contention, it must be notedthat in the present case, Section 43(3) only talks about priorapproval by the Central Government. As noted in the counteraffidavit, the Central Government had granted approval as early as28.02.2005. The Government Order authorizing publication of draftnotification, i.e., G.O.Ms.No.65, Labour and EmploymentDepartment, dated 25.04.2005, in the reference column itselfindicates the letter sent by the Central Government, Ministry ofLabour and Employment referring the approval granted by theCentral Government. Therefore, it is not clear as to why thepetitioner now contends that there was no prior approval by theCentral Government. On the other hand, by invoking Section 23 ofthe General Clauses Act, the petitioners only contended that theirobjections should be considered and they have also forwarded theirobjections to the Central Government. If the Central Governmenthad approved the draft notification, it does not require anyfurther procedure to be followed by the State Government. In fact,the State Government having got the approval of the CentralGovernment and published the draft notification and afterconsidering the objections raised, had published the finalnotification which is impugned in the writ petition. In thiscontext, this court do not find any procedural flaw in such methodbeing followed.27.In K.T. Plantation (P) Ltd. v. State of Karnataka reportedin (2011) 9 SCC 1, the Supreme Court in construing the procedures https://hcservices.ecourts.gov.in/hcservices/ under Section 23, in paragraphs 69 to 71 held as follows :69.The State Government issued the Notification dated8-3-1994 in exercise of the powers conferred bySection 110 of the Land Reforms Act which waspublished in the Official Gazette on 11-3-1994.Section 2(22) of the Act defines “notification” tomean a notification published in the OfficialGazette. Section 23 of the General Clauses Act, 1897also states that the publication in the OfficialGazette of a rule or bye-law purported to have beenmade in exercise of power to make rules or bye-lawsafter previous publication shall be conclusive proofthat the rule or bye-law has been duly made.70.This Court in B.K. Srinivasan v. State ofKarnataka36 held as follows: (SCC p.672, para 15)“15. … unlike parliamentary legislation which ispublicly made, delegated or subordinate legislationis often made unobtrusively in the chambers of aMinister, a Secretary to the Government or otherofficial dignitary. It is, therefore, necessary thatsubordinate legislation, in order to take effect,must be published or promulgated in some suitablemanner, whether such publication or promulgation isprescribed by the parent statute or not. It will thentake effect from the date of such publication orpromulgation.”71.So far as this case is concerned, the StateGovernment has already followed the legal requirementof publication of the Notification dated 8-3-1994which came into effect on 11-3-1994.”28.Therefore, the fact that the Central Government did notissue any separate order rejecting their objections does notinvalidate the notification. On the contrary, in the counteraffidavit filed by the third respondent, the Central Governmenthad clearly justified the implementation of the provisions and inparagraph 12, it was averred as follows :“12....it is submitted that the provision ofWelfare Officer under Section 18 of the PlantationsLabour Act, 1951 have not been repealed neitheramended. Hence there is no infirmity in theenforcement of the provisions arising out of thesaid Act. Moreover, while notifying the provisionsof welfare Officers in the State of Tamilnadu,Government of Tamilnadu has taken permission underSection 43(3) of the Plantations Labour Act, 1951from the Government of India and vide thisMinistry's Letter No.S-66012/1/2005-IR(PL) dated28.02.2005, permission has been granted forinclusion of the said provision. Hence no infirmity https://hcservices.ecourts.gov.in/hcservices/ arise out of the said notification.”Hence the second contention of the petitioners does not meritacceptance.29.The third and last contention raised was that there wasexcessive delegation. In terms of Section 18, the prescription ofnumber of welfare officers is also delegated to the StateGovernment, whereas the plantations which are required to employwelfare officers has also been restricted that plantations whichare having 300 or more workers shall employ welfare officers.Therefore, there was necessity to appoint welfare officers in theestate having 300 or more workers. The Act itself defines as towhat is plantation and number of 300 workers is the requirementunder law for appointment of Welfare Officers. The delegate isbeing a State Government is only bound to prescribe the nature ofduties, qualifications and conditions of service of suchofficers. The words number of welfare officers as may beprescribed found under Section 18(1) include number of welfareofficers require to be employed is also prescribed by the StateGovernment under the rule making power. It does not indicate theirnumbers to be decided by the Central Government. The Act nowherecontemplate any role for the Central Government to prescribe anyrules and the entire rule making power is only given to the StateGovernment being the authority to enforce the Act.30.The distinction made between male and female workers to bekept in-charge of different welfare officers is the distinctionwhich cannot be said to be arbitrary or unwarranted under therelevant provisions for delegation. In fact, when it says numberof officers, it could also mean not only number of officers, butalso the category of officers who are bound to look after thewelfare works. In a plantation, predominant number of workers arefemale labours. Therefore, certainly special requirements willhave to be monitored by the welfare officers to be appointed bythe management. There are also special features relating to'creche' to be maintained by the plantation and feeding of infantchild, grant of maternity leave and prohibition of employment ofworkers when a female worker is pregnant and non discriminatoryallotment of quarters between female and male workers, are someissues which can be looked into only by a female welfare officer.Hence this court do not find any case to find excessive delegationespecially when the Parliament itself has authorized theappointment of welfare officers and also number of workersrequired for plantation to employ welfare officers and also numberof welfare officers to be appointed is being left to the StateGovernment by the rule making power. 31.In this context, the learned Senior Counsel referred to ajudgment of the Supreme Court in Sant Saran Lal v. Parsuram Sahu,reported in (1966) 1 SCR 335 = AIR 1966 SC 1852 and in paragraph18, it was observed as follows : https://hcservices.ecourts.gov.in/hcservices/ “18.We have referred to the fact that the Act doesnot anywhere provide for the fixing of the upper limitfor the loans remaining outstanding at any particulartime. The rule-making power of the Government does notextend to the fixing of such a limit. Section 27empowers the State Government to prescribe inter aliathe form of the registration certificate and theparticulars to be contained in an application made forthe purpose of being registered as a money-lender. Itis significant to note that the rule-making powergiven to the State Government is not expressed in theusual form i.e. is not to the effect that the StateGovernment may make rules for the purposes of the Act.The rule-making power is limited to what is stated inclauses (a) to (e) of Section 27 and these clauses donot empower the State Government to prescribe thelimit upto which the loans advanced by a money lenderare to remain outstanding at any particular moment oftime.”32.He further referred to a judgment of the Supreme Court inV.Sudeer v. Bar Council of India reported in (1999) 3 SCC 176 =AIR 1999 SC 1167 and in paragraphs 20 and 26, it was observed asfollows L“20.We may now refer to Section 49 of the Act, whichdeals with the general power of the Bar Council ofIndia to make rules. ............... A mere look atthe aforesaid provision makes it clear that the rule-making power entrusted to the Bar Council of India bythe legislature is an ancillary power for fructifyingand effectively discharging its statutory functionslaid down by the Act. Consequently, rules to be framedunder Section 49(1) must have a statutory peg on whichto hang. If there is no such statutory peg, the rulewhich is sought to be enacted dehors such a peg willhave no foothold and will become stillborn. Thestatutory functions entrusted by the legislature tothe Bar Council of India under the Act so far asrelevant for our present purpose and which could berelied upon by Shri Rao, learned Senior Counsel forthe respondent-Bar Council of India, are Section 7(1)(h) and Section 24(3)(d). We have seen earlier thatneither of these statutory provisions entitles the BarCouncil of India to provide for the disqualificationor a disability or an additional condition forenrolment of a person who is otherwise eligible to beenrolled as an advocate under Section 24(1)..................... Any rule framed by the rule-making authority going beyond its statutory functionsmust necessarily be held to be ultra vires andinoperative at law. https://hcservices.ecourts.gov.in/hcservices/

26.....In other words, rule-making power underSection 49(1)(ah) deals with a situation which ispost-enrolment of an advocate and does not deal withpre-enrolment situation for a candidate seekingenrolment......”33.He further referred to a judgment of the Supreme Court inAhmedabad Urban Development Authority v. Sharadkumar JayantikumarPasawalla reported in (1992) 3 SCC 285 = AIR 1992 SC 2038 andreferred to paragraph 7 of the said judgment which reads asfollows:“7.....In our view, such power of imposition of taxand/or fee by delegated authority must be veryspecific and there is no scope of implied authorityfor imposition of such tax or fee. It appears to usthat the delegated authority must act strictly withinthe parameters of the authority delegated to it underthe Act and it will not be proper to bring the theoryof implied intent or the concept of incidental andancillary power ......”34.The learned Senior Counsel also referred to a judgment ofthe Supreme Court in Lilasons Breweries (P) Ltd v. State of M.Preported in (1992) 3 SCC 293 = AIR 1992 SC 1393 and in paragraph8, the Supreme Court had observed as follows :“8................ The basis of the statutory powerconferred by the statute cannot be transgressed bythe rule-making authority. A rule-making authorityhas no plenary power. It has to act within the limitsof the power granted to it.”35.The learned counsel also referred to a judgment of thePatna High Court in Vishnu Sugar Mills Ltd. Vs. State of Bihar andothers reported in 1999 (3) LLN 715 (Patna) and in paragraph 15,it was observed as follows :“15.From a conspectus of the aforesaid decisions, itbecomes clear that a delegatee has no jurisdiction toframe a rule from a retrospective date if such apower is not delegated to it by the statute either inexpress terms or by necessary implication.”36.The Supreme Court while construing a labour legislation hasheld that while interpreting the provisions, the intention oflegislation should be gone into vide its decision in S.M. Datta v.State of Gujarat reported in (2001) 7 SCC 659 and in paragraph 16,it was held as follows :16.The backdrop of legislation and the subsequentincorporation of the Factories Act in the statute-book,as noticed hereinbefore in this judgment, has beenadverted to by reason of a true reading of the provisionsof the Act of 1948, the underlying intent of the https://hcservices.ecourts.gov.in/hcservices/ legislature to confer benefits on the labour force of afactory cannot be doubted in any way whatsoever.Appointment of Inspectors by the State Government interms of the provisions of State Rules (in the instantcase the Gujarat Factories Rules, 1963) has been effectedonly for the purposes of giving effect to the beneficialpiece of legislation and as such both the Rules and formsintroduced thereunder by the State Government and theprovisions of the statute shall have to be read inconsonance with the intent of the legislature and notdehors the same.37.Further it has been held in the said judgment that themandate of the statute ought to be interpreted in a manner as togive efficacy to the legislative intent (para 19) and that thebeneficial legislations have been engrafted in the statute-bookfor the benefit of the socially downtrodden (para 20).38.The Supreme Court vide judgment in Tamil Nadu ElectricityBoard v. Status Spinning Mills Limited reported in (2008) 7 SCC353 held that in the matter of interpretation of statute, thecourt will have last say and in paragraph 30, it was held asfollows :“30....In the matter of interpretation of statute,the court has the last say.....39.The Supreme Court in Balram Kumawat v. Union of Indiareported in (2003) 7 SCC 628 in paragraphs 20 to 23 had observedas follows :“20.Contextual reading is a well-known proposition ofinterpretation of statute. The clauses of a statuteshould be construed with reference to the contextvis-à-vis the other provisions so as to make aconsistent enactment of the whole statute relating tothe subject-matter. The rule of “ex visceribus actus”should be resorted to in a situation of this nature.21. In State of W.B. v. Union of India3 (AIR at p.1265, para 68), the learned Chief Justice stated thelaw thus:“The Court must ascertain the intention of thelegislature by directing its attention notmerely to the clauses to be construed but to theentire statute; it must compare the clause withthe other parts of the law, and the setting inwhich the clause to be interpreted occurs.”22. The said principle has been reiterated in R.S.Raghunath v. State of Karnataka4 (AIR at p. 89).23.Furthermore, even in relation to a penal https://hcservices.ecourts.gov.in/hcservices/ statute any narrow and pedantic, literal and lexicalconstruction may not always be given effect to. Thelaw would have to be interpreted having regard to thesubject-matter of the offence and the object of thelaw it seeks to achieve. The purpose of the law isnot to allow the offender to sneak out of the meshesof law. Criminal jurisprudence does not say so.40.The Supreme Court in Manik Lal Majumdar v. Gouranga ChandraDey reported in (2004) 12 SCC 448 in paragraph 10 had observed asfollows :“10.... It is a well-settled principle ofinterpretation that every part of the provision has tobe given meaning and effect in the context of astatute. “41.The Supreme Court in Sankar Ram & Co. v. Kasi Naickerreported in (2003) 11 SCC 699 in paragraph 7 had held as follows :“7.It is a cardinal rule of construction that normallyno word or provision should be considered redundant orsuperfluous in interpreting the provisions of astatute. In the field of interpretation of statutes,the courts always presume that the legislatureinserted every part thereof with a purpose and thelegislative intention is that every part of thestatute should have effect. It may not be correct tosay that a word or words used in a statute are eitherunnecessary or without any purpose to serve, unlessthere are compelling reasons to say so looking to thescheme of the statute and having regard to the objectand purpose sought to be achieved by it. AConstitution Bench of this Court in Jaipur ZilaSahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma1while interpreting and considering the effect of theproviso to Section 33(2)(b) of the Industrial DisputesAct, 1947 in para 13 observed: (SCC pp. 252-53)“13. The proviso to Section 33(2)(b), as canbe seen from its very unambiguous and clearlanguage, is mandatory. … Taking a contraryview that an order of discharge or dismissalpassed by an employer in contravention of themandatory conditions contained in the provisodoes not render such an order inoperative orvoid, defeats the very purpose of the provisoand it becomes meaningless. It is a well-settled rule of interpretation that no part ofstatute shall be construed as unnecessary orsuperfluous. The proviso cannot be diluted or https://hcservices.ecourts.gov.in/hcservices/ disobeyed by an employer. … The interpretationof statute must be such that it should advancethe legislative intent and serve the purposefor which it is made rather than to frustrateit.”Once the requirements of Section 55 of the Act aresatisfied, the appellant is entitled to the protectionof the said section as a bona fide transferee. Takinga contrary view takes away the very protectiveumbrella specifically made available to a bona fidetransferee covered by Section 55. Protection providedfor bona fide transfer in Section 55 is in a way anexception to Section 28(7).42.In view of the above, there is no case made out tointerfere with the impugned provisions. Hence the writ petitionwill stand dismissed. No costs. Consequently connectedmiscellaneous petition stands closed. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarvvkTo1.The Secretary to Government, Labour & Employment Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009.2.The Commissioner of Labour, D.M.S. Complex, Teynampet, Chennai-600 006.3.The Secretary to Government of India, Ministry of Labour, Shram Shakti Bhavan, New Delhi-110 001.+1cc to Mr.C.R.Dhasarathan, Advocate Sr 30691SR(CO)km/11.6.W.P.No.30368 of 2007