M/s. Delhi International Airport Pvt. Ltd. V/S Union of India & Others

 Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed

Summary: Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors 136 workers were employed by the contractor M/s. TDI International Pvt. Ltd. to do the work of trolley retrieving at the Domestic and at the International Airport at Delhi in the year 1992. In view of the perennial nature of the work, the workmen approached the Contract Labour Court for abolition of contract labour system and for their absorption as regular employees. AAI came into force merging the International Airport Authority Act, 1971 and the National Airport Authority Act, 1985. 136 workers were employed by the contractor M/s. TDI International Pvt. Ltd. to do the work of trolley retrieving at the Domestic and at the International Airport at Delhi in the year 1992. In view of the perennial nature of the work, the workmen approached the Contract Labour Court for abolition of contract labour system and for their absorption as regular employees. AAI came into force merging the International Airport Authority Act, 1971 and the National Airport Authority Act, 1985.  On 26th July, 2004 the Central Government accepted the recommendations of the Contract Labour Court and issued notification dated 26th July, 2004 abolishing the contract labour system. This notification was challenged by AAI before the High Court of Delhi.  Taking note of the ONGC judgment reported in Oil and Natural Gas Commission and Another Vs. Collector of Central Excise 1992 Suppl. (2) SCC 432 the High Court vide judgment dated 3rd February, 2005 held that the present proceedings cannot be proceeded with till the matter is resolved by the High Powered Committee (HPC). Accordingly, the matter went to the HPC and the notification was not given effect to. Meanwhile, 136 workers who were engaged as Trolley retrievers by the contractor M/s. TDI International Private Limited working at the airport since 1992 were removed from service on 5th December, 2003 as the contract of M/s. TDI International Private Limited had come to an end and a new contractor Sindhu Holdings came in its place. These 136 members filed Writ Petition No.15156 of 2006 before the learned Single Judge of the High Court of Delhi praying for their absorption in service as regular employees and for implementation of the notification dated 26th July, 2004. PROCEDURAL HISTORYThe learned Single Judge of the High Court after hearing the parties including DIAL vide judgment dated 28th November, 2006 held that the establishment of AAI is no longer in existence and has changed.  As such, the notification dated 26th July, 2004 cannot be applied to the new entity DIAL.  The appropriate government shall have to issue a fresh notification.  Consequently, the Writ Petition filed by the said 136 workers stood dismissed by the learned Single Judge of the High Court. Indira Gandhi International Airport TDI Karamchari Union preferred LPA No.38 of 2007 against the judgment of the learned Single Judge.  The Union of India also preferred LPA No.1065 of 2007 against the judgment of the learned Single Judge. During the pendency of these LPAs, an order dated 24th September, 2007 was passed by the Chief Labour Commissioner, Government of India holding that the appropriate government for DIAL is the Central Government. By order dated 22nd November, 2007 the documents and file relating to DIAL were sent to the Central Government.  These orders were challenged by DIAL in Writ Petition (C) No.139 of 2008.  After getting the permission, AAI filed another Writ Petition (C) No.6763 of 2008 challenging the said notification on merit.  The Division Bench of the High Court heard all these matters together and passed the impugned order of 18th December, 2009. The review petition was preferred by the Union of India which was decided on 12th March, 2010 by the High Court modifying para 61 of the impugned judgment.  Against the 7impugned judgment of the Division Bench of the High Court, two appeals were preferred by DIAL and three by AAI and one by the Indira Gandhi International Airport TDI Karamchari Union. ISSUE BEFORE THE COURT:Who is the appropriate government for DIAL under the CLRAA and ID Act?  This is the subject matter of SLP (C) No.369 of 2010 filed by DIAL? Whether the notification dated 26th July, 2004 is applicable to DIAL as it is issued by the Central Government which is not the appropriate government for DIAL? Whether the notification that applies to the ‘establishment of AAI’ will be applicable to the ‘establishment of DIAL’ which only came into existence on 4th April, 2006?  This is the subject matter of SLP (C) No.377 of 2010 filed by DIAL? Whether the Notification dated  26th July, 2004 issued by the Central Government under Section 10 (1) of the Contract Labour (Regulation and Abolition) Act, 1970 prohibiting employment of contract labour of trolley retrievals in the establishment of the Airport Authority of India (for short, ‘AAI’) at the Indira Gandhi International Airport and Domestic Airport at Delhi  would be applicable to the Delhi International Airport Private Limited or not?Whether DIAL works under the Central Government and whether the Central Government is the ‘appropriate government’ for DIAL? Whether the trolley retrieval services performed by DIAL are done “for the transport by air of persons, mail, or any other thing? RATIO OF THE COURT:A close reading of the objects and reasons indicates that the Central Government under Section 12A of the AAI Act has retained the power to give directions in the public interest or in the interest of better management to lease the premises of the airport to carry out some of its functions under Section 12A, as the authority may deem fit.  Some of its (AAI’s) functions have been leased out to DIAL.  This has been done under Section 12A(2) with the previous approval of the Central Government.  On proper scrutiny of the provisions of the AAI Act, it is abundantly clear that the Central Government has control over AAI and AAI has control over DIAL.  DIAL claims that if AAI’s industry was being carried out under the authority of the Central Government under Section 2 of the ID Act, there would have been no need for the legislature to separately include AAI as an “enumerated industry”.  Such reasoning would be seen on a plain reading of the phrase: “under the authority of the Central Government”, as DIAL itself has admitted that all these industries, on a cursory look, seem to be by or under the control of the Central Government. A close reading of the objects and reasons indicates that the Central Government under Section 12A of the AAI Act has retained the power to give directions in the public interest or in the interest of better management to lease the premises of the airport to carry out some of its functions under Section 12A, as the authority may deem fit.  Some of its (AAI’s) functions have been leased out to DIAL.  This has been done under Section 12A(2) with the previous approval of the Central Government.  On proper scrutiny of the provisions of the AAI Act, it is abundantly clear that the Central Government has control over AAI and AAI has control over DIAL.  DIAL claims that if AAI’s industry was being carried out under the authority of the Central Government under Section 2 of the ID Act, there would have been no need for the legislature to separately include AAI as an “enumerated industry”.  Such reasoning would be seen on a plain reading of the phrase: “under the authority of the Central Government”, as DIAL itself has admitted that all these industries, on a cursory look, seem to be by or under the control of the Central Government. Further, this line of thinking would imply that none of the many industries enumerated in ID Act can be held to act “under the authority of the Central Government”.  While this is conceivably the case, it may be more likely that the authors of the ID Act, in listing the enumerated industries, simply wanted to ensure that those industries were covered by the Act, without meaning to affect the separate issue of whether those industries were also acting “under the authority of the Central Government.” Further, while it is fair to assume that the legislature attempts to avoid tautology, such canons are not necessarily dispositive.  It is well established canon of statutory construction that the legislature is known to avoid tautology and redundancy.  The crucial questions which need our adjudication are: whether DIAL works under the Central Government and whether the Central Government is the ‘appropriate government’ for DIAL? The AAI Act was passed by the Central Government “to provide for the constitution of the Airports Authority of India’ which was in turn charged with the “better administration and cohesive management of airports.”  Preamble to Section 12A of the AAI Act allows AAI to contract with third parties to perform some of AAI’s functions (in the public interest or in the interest of better management of airports).  It was this proviso which allowed AAI to assign some of its functions to  DIAL through OMDA, responsibility for trolley collection services at the Indira Gandhi International Airport and the domestic airport. DIAL claims that if AAI’s industry was being carried out under the authority of the Central Government under Section 2 of the ID Act, then there would have been no need for the legislature to separately include AAI as an “enumerated 29industry”. On the one hand, this argument of DIAL is correct. On the other hand, however, such reasoning would seem to contradict a plain reading of the phrase “under the authority of the Central Government” as DIAL itself has admitted, “all these industries, on a cursory look seem to be by or under the control of the Central Government.” Further, this line of thinking would imply that none of the many industries enumerated under Section 2 of the ID Act can be held to act “under the authority of the Central Government”.  While this is conceivably the case, it may be more likely that the framers of the ID Act, in listing the enumerated industries simply wanted to ensure that these industries were also acting “under the authority of the Central Government.”  In the instant case under Section 12A of the AAI Act all functions have been given to DIAL except watch and ward function, air traffic service and civil enclaves.  From the provisions of OMDA, it is clear that all functions of AAI barring reserved activities and all land except certain carved out assets has been given to DIAL.  DIAL has admitted that AAI has transferred to it all functions except those related to watch and ward, air traffic service and civil enclaves, none of which can be considered as “air transport service”.  That being the case, AAI must have transferred its duty to provide “air transport service” to DIAL and the Central Government must, therefore, be the appropriate government for DIAL under the CLRAA and ID Act. On the one hand, AAI clearly cannot be considered a local authority as it is charged with managing airports throughout India.  On the other hand, AAI also cannot be considered an “office or department of the Government”.  The AAI Act makes clear that AAI must, in certain circumstances, obtain approval from the Central Government, thereby implying that AAI is not itself the Central Government. Therefore, “establishment” in this case cannot refer to “any office or department of the Government or a local authority”, it must refer to a “place where any industry, trade, business, manufacture or occupation is carried on”.   The Division Bench in the impugned judgment held that the establishment for the purposes of the CLRAA is a place where the industrial, trade or business activity is carried on then it necessarily follows in the context of the present case that it is the Delhi Airports which constitute the establishment of AAI and in turn the establishment of DIAL.  Admittedly, DIAL has been leased out the portion of AAI’s work, which DIAL only has incomplete control over as well as the fact that DIAL meets the definition of a contractor under the CLRAA, further suggests that DIAL is nothing more than a contractor for AAI establishment.  DIAL is not, in other words, a principal employer of an independent establishment. That being the case, the 26th July, 2004 notification, declared at AAI establishment, must also apply to DIAL.For the foregoing reasons, it is clear that the notification dated 26th July, 2004 was equally binding on DIAL under the CLRAA and, therefore, DIAL must abolish all contract labour as per the terms of the notification. The court have no hesitation in coming to the conclusion that the Central Government notification dated 26th July, 2004 is clearly binding and applicable to DIAL.  DIAL’s obligation with regard to the contract labour in general is clear from the said notification.  They are liable to be regularized as regular employees of DIAL.  DIAL has replaced many of the workers with other trolley retrievers and it would be unrealistic to expect DIAL to regularize the employment of their current trolley retrievers and member of the workers’ union alike and inequitable to leave the current workers jobless so as to make room for erstwhile workers of DIAL. DECISION HELD BY COURT:In this case the judgment was given by JUSTICE DALVEER BHANDARI that the peculiar facts and circumstances of these cases directing DIAL to regularize services of trolley retrievers who worked with DIAL till 2003 would be harsh, unrealistic and not a pragmatic approach.The court deem it proper to direct DIAL to pay Rupees five lakhs to each of the erstwhile 136 workers of DIAL who were working for them as trolley retrievers till 2003 and in case any worker has expired, then his or her legal heirs would be entitled to the said amount. This compensation is paid to the workers in lieu of their permanent absorption/reinstatement with DIAL and their claim of back wages.   In this case the judgment was given by JUSTICE DALVEER BHANDARI that the peculiar facts and circumstances of these cases directing DIAL to regularize services of trolley retrievers who worked with DIAL till 2003 would be harsh, unrealistic and not a pragmatic approach. The court deem it proper to direct DIAL to pay Rupees five lakhs to each of the erstwhile 136 workers of DIAL who were working for them as trolley retrievers till 2003 and in case any worker has expired, then his or her legal heirs would be entitled to the said amount. This compensation is paid to the workers in lieu of their permanent absorption/reinstatement with DIAL and their claim of back wages.   This is in full and final settlement of entire claims of erstwhile 136 workers of DIAL. The court direct DIAL to pay the amount to these 136 erstwhile workers of DIAL within three months after proper verification. In case the amount, as directed, is not paid within the prescribed period, then it would carry interest at the rate of 12% per month from that point till the amount is paid. These appeals are accordingly disposed of in the aforementioned terms. In the facts and circumstances of these cases, The court direct the parties to bear their own costs.