Case: Engineering Kamgar Union Vs. M/S. Electro Steels Castings Ltd

If the proposal made by the State is limited qua the repugnancy of the State law and law or laws specified in the said proposal, then it cannot be said that the assent was granted qua the repugnancy between, the State law and other laws for which no assent was sought for. Take for illustration that a particular provision, namely, Section 3 of the State law is repugnant to enactment A made by Parliament, other provision namely Section 4 is repugnant to some provisions of enactment B made by Parliament and Sections 5 and 6 are repugnant to some provisions of enactment C and the State submits proposal seeking assent mentioning repugnancy between the State law and provisions of enactments A and B without mentioning anything with regard to enactment C. In this set of circumstances, if the assent of the President is obtained , the State law with regard to enactments A and B would prevail but with regard to C, there is no proposal and hence there is no consideration or assent. Proposal by the State pointing out repugnancy between the State law and of the law enacted by the Parliament is a sine qua non of consideration and assent. If there is no proposal, no question of consideration or assent arises. For finding out whether assent given by the President is restricted or unrestricted, the letter written or the proposal made by the State Government for obtaining assent is required to be looked into." 38. The question, however, is to be considered having regard to the fact situation obtaining herein. The conflict between the Central Act and the State Act was apparent. The State of Uttar Pradesh inserted Section 6V by Act No. 26 of 1983 being conscious of the fact that an Act had been passed to the contrary by the Parliament in terms of Act No. 46 of 1982. So long Chapter V-B was applicable to an industrial establishment engaging 300 or more persons, the State did not insert any provision and allowed the Parliament to occupy the field relating to layoff, retrenchment and closure of industrial undertakings. Only when the number of workmen having regard to the legislative policy as would appear from the Statements of Objects and Reasons was brought down to 100 from 300 for the purpose of applicability of Chapter V-B of the Central Act, the amendment was brought in by the State. The provisions contained in Section 6V by reason of the 1983 Amendment by the Legislature of the State of Uttar Pradesh must have made consciously in relation whereto only the legislation was reserved for the Presidential Assent. If the contention of the appellant was that the assent of the President was obtained without clearly informing him the purpose for which the same was sought for, it was necessary for them to raise such a plea in this behalf in the writ petition. Not only such a plea had not been raised in the writ petition or before the High Court, of such plea has been raised even in the Special Leave Petition. We agree with Mr. Jayant Bhushan that in such a situation, the appellant should not be permitted to raise the said question. We would, therefore, proceed on the presumption that the State amended the Act having regard to the provisions of the Central Act and the Presidential Assent was sought for only on account thereof. 39. Section 114(e) of the Union Evidence Act raises a presumption that all official acts must have been performed regularly. Section 114(f) of the said Act raises a presumption that the common course of business has been followed in particular cases. The said presumptions, therefore, would apply in this case also. In any event, we do not find any reason to allow the appellant to raise the said plea before this Court for the first time. Effect of Non-Obstante Clause: 40. The contention of Mr. Banerjee to the effect that Section 25J of the Central Act has been incorporated by reference in Section 25S cannot be accepted. Section 25S does not introduce a non-obstante clauses as regard Chapter V-A. Furthermore, Section 25J is not a part of Chapter V-B. By reason of Section 25S, the provisions of Chapter V-A were made applicable only in relation to certain establishments referred to in Chapter V-B. The Parliament has deliberately used the words so far as may be which would also indicate that provisions of Chapter V-B were to apply to the industrial establishments mentioned in Chapter V-A. The non-obstante clause contained in Section 25J does not apply to the entire Chapter V-B. Applicability of Chapter V-A in relation to the industrial establishments covered by Chapter V-B in terms of Section 25J vis-a-vis Section 25S is permissible but the contention cannot be taken any further so as to make Section 250 of the Central Act prevail over the State Act by taking recourse to the non-obstante clause. Non-obstante clause contained in Section 25J is, thus, required to be kept confined to Chapter V-A only and in that view of the matter we have no hesitation in holding that Chapter V-B does not have an overriding effect over the State Act.41. In any event, such a question could have arisen for consideration if the Central Act and the State Act had been enacted in terms of different entries of List I and List II of the Seventh Schedule of the Constitution of India. In this case, admittedly both the Central Act and the State Act had been enacted in terms of Entry 22 of List III of the Seventh Schedule of Constitution of India. In case of any conflict therefor the constitutional Scheme contained in Article 254 will have to be applied. Even if Section 255 of the State Act is read to have an overriding effect. Undoubtedly the provisions of the supreme lax shall prevail over a statute. A non-obstante clause contained in a statute cannot override the provisions of the Constitution of India.Conclusion:

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

Explanation:
0[ds]. It may be true that the reason for amending Chapter V-B of the Central Act by reason of Act No. 46 of 1982 inter alia was to extend the beneficent provisions to workmen of small establishments by reducing the existing employment limit thence from 300 to 100. But it is equally true that the State Act was amended by Act No. 26 of 1983 after the amendment of the Central Act. It is not in dispute that Section 25K and Section 250 of the Central Act are in pari materia with Sections 6V and 6W of the State Act. We must also notice that whereas the Central Act received the Presidents Assent on 31.8.1982, the State Act received the Presidents Assent on 10.10.1983. It is also not in dispute that by reason of the State Act the Chapter relating to layoff retrenchment and closure was made applicable in relation to an industrial establishment wherein not less than 300 workmen are employed. The amending Act of 1982 was published in Gazette of India on 1.9.1982 and was given effect to form 21.8.1984 whereas the State Act was published in the U.P. Gazette on 12.10.1983 and was given effect to fromjurisdiction of the State Legislature to enact a law by a Parliamentary legislation is not impermissible. Subject to the provisions contained in Article 254 of the Constitution of India, both will operate in their respective fields. The Constitutional Scheme in this behalf is absolutely clear and unambiguous. In this case, this Court is not concerned with the conflicting legislations operating in the same field by reason of enactments made by the Parliament and the State in exercise of their respective legislative powers contained in List I and List II of the Seventh Schedule of Constitution of India but admittedly the field being the same, a question wouldas regard the effect of the one Act over the other in the event it is found that there exists a conflict. For the said purpose, it is not necessary that the conflict would be direct only in a case wherein the provisions of one Act would have to be disobeyed if the provisions of the other is followed. The conflict may exist even where both the laws lead to different legal results.Keeping in view the plain language used in Article 252(2) of the Constitution of India we are of the opinion that the State Act in the fact and circumstances of this case, keeping in view the Presidential Assent given thereto shall prevail over the Centralcontention of Mr. Banerjee to the effect that Section 25J of the Central Act has been incorporated by reference in Section 25S cannot be accepted. Section 25S does not introduce a non-obstante clauses as regard Chapter V-A. Furthermore, Section 25J is not a part of Chapter V-B. By reason of Section 25S, the provisions of Chapter V-A were made applicable only in relation to certain establishments referred to in Chapter V-B. The Parliament has deliberately used the words so far as may be which would also indicate that provisions of Chapter V-B were to apply to the industrial establishments mentioned in Chapter V-A. The non-obstante clause contained in Section 25J does not apply to the entire Chapter V-B. Applicability of Chapter V-A in relation to the industrial establishments covered by Chapter V-B in terms of Section 25J vis-a-vis Section 25S is permissible but the contention cannot be taken any further so as to make Section 250 of the Central Act prevail over the State Act by taking recourse to the non-obstante clause. Non-obstante clause contained in Section 25J is, thus, required to be kept confined to Chapter V-A only and in that view of the matter we have no hesitation in holding that Chapter V-B does not have an overriding effect over the State Act.41. In any event, such a question could have arisen for consideration if the Central Act and the State Act had been enacted in terms of different entries of List I and List II of the Seventh Schedule of the Constitution of India. In this case, admittedly both the Central Act and the State Act had been enacted in terms of Entry 22 of List III of the Seventh Schedule of Constitution of India. In case of any conflict therefor the constitutional Scheme contained in Article 254 will have to be applied. Even if Section 255 of the State Act is read to have an overriding effect. Undoubtedly the provisions of the supreme lax shall prevail over a statute. A non-obstante clause contained in a statute cannot override the provisions of the Constitution of India.