Case: M. S. Shvananda Vs. Karnataka State Road Transport Corporation And Others

10. Further, it is significant to notice that the saving clause that we are considering in s. 31(2) (i) of the Act, saves things done while the ordinance was in force; it does not purport to preserve a right acquired under the repealed ordinance. It is unlike the usual saving clauses which preserve unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. It is also clear that even s. 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute.Employees in excess of the scale prescribed for the categories specified under proviso to sub-s. (3) of s. 19 of the Act are clearly not entitled for absorption. Though sub- cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it doe s not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning of the Industrial Disputes Act, 1947; (2 ) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub-cl. (3) to cl. 20. The whole object of inserting sub-cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicants. 11. It is necessary to mention that cl. 5 of t he Ordinance, which corresponds to s. 5 of the Act, provided that every contract carriage operator shall within 15 days from the notified date or within such further time as the State Government may allow, furnish to the State Government or any officer authorised by it in this behalf, complete particulars among others of persons who were in their employment immediately before the notified date. It was only after such information was received that steps had to be take n for the purpose of ascertaining as to who were entitled to be absorbed in the service of the Corporation in accordance with sub-cl. (3) to cl. 20 of the ordinance. The authorities after collecting the necessary information had to determine not only the corresponding posts to which the erstwhile employees of the contract carriage operators could be absorbed in the service of the Corporation but also their relative seniority, for the purpose of excluding the employees who were in excess of the scale for the purpose of absorption.As sub-cl. (3) to cl. 20 itself provides that a person who is not willing to become an employee of The Corporation is entitled to retrenchment compensation as provided for in the Industrial Disputes Act, the authorities were also required to ascertain as to whether the employee, who was entitled to be absorbed in service, was willing to become an employee of the Corporation or not. It was only if the employee was willing to be absorbed in th e service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub-cl. (3) to cl. 20 were satisfied. Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub-cl. (3) to cl. 20 of the ordinance. 12. The very fact that all these Various steps were necessary to be taken, which necessarily takes time, shows that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore, stepped in and reduced the scale of absorption in the proviso to sub-s. (3) of s. 19 from 7.9 per vehicle to 4.45 per vehicle. 13. This is , in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of the Corporation by virtue of sub-cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken a way by the proviso to sub-s. (3) of s. 19. Even if-contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub-s. (1) of s. 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a new proviso in sub-s. (3) of s. 1 in place of the old proviso to sub-cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub-cl. (3) to cl. 20 laying down a particular ratio of absorption, is protanto avoided by an express enactment of a new proviso to sub-s. (3) of s. 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub-cl. (3) to cl. 20. The employees of the former contract carriage operators in normal course filled in the pro form giving their service particulars and reported to duty. This was in the mere ho pe or expectation of acquiring a right. The submission of these call reports by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. As a matter of fact, nothing was done while the ordinance was in force. The Act was published on March 12, 1976. on May 29, 1976, the Corporation sent up proposals for equation of posts to be filled in by the employees of the former contract carriage operators. The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter-se seniority, met on June 2, 1976. The Committee decided that even in the case of helpers-cleaners, there should be a trade test and the staff cleared by the Committee for the posts of helper B helper A and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators who were, eligible for absorption, should be interviewed by that p Committee for the purpose of absorption on the basis of experience, ability, duties and responsibilities. These norms were not laid down till June 2, 1976. Till their actual absorption, the employees of the erstwhile contract carriage operators had only an incohate right.The distinction between what is, and what is not a right preserved by the provisions of s. 6 of the General Clauses Act is often one of great finenessIt must be mentioned that the object of s. 31(2) (i) is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforcedIt is also clear that even s. 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute.Employees in excess of the scale prescribed for the categories specified under proviso to sub-s. (3) of s. 19 of the Act are clearly not entitled for absorption. Though sub- cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it doe s not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning ofthe Industrial Disputes Act, 1947; (2 ) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub-cl. (3) to cl. 20. The whole object of inserting sub-cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicantsThis is , in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of the Corporation by virtue of sub-cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken a way by the proviso to sub-s. (3) of s. 19. Even if-contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub-s. (1) of s. 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a new proviso in sub-s. (3) of s. 1 in place of the old proviso to sub-cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub-cl. (3) to cl. 20 laying down a particular ratio of absorption, is protanto avoided by an express enactment of a new proviso to sub-s. (3) of s. 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected.