Introduction
In a bunch of petitions challenging the judgments and awards passed by the Labour Court (District Judge, West Tripura, Agartala), a Single Bench of the Tripura High Court in Glenmark Pharmaceuticals Ltd. v. State of Tripura held that since Section of the (hereinafter referred to as “the ID Act”) was repealed by the (hereinafter referred to as “the RA Act, 2016”). The Labour Court could not have entertained applications filed by the respondent workmen under Section 2-A(2) of the ID Act in July 2017 as it “lacked inherent jurisdiction to accept applications filed by the respondents”. Section 2-A(2) had been inserted into the ID Act by Section of the (hereinafter referred to as “the ID Amendment Act”).
The ID Amendment Act was enacted on 18-8-2010 and came into force on 15-9-2010. Section 2-A(2) enables a workman to make an application for adjudication of a dispute set out in Section 2-A(1) directly to the Labour Court or tribunal (notwithstanding anything contained in Section 10 of the ID Act) three months after the date on which an application has been made to the Conciliation Officer and after receipt of such application, the Labour Court or tribunal has the powers and jurisdiction to adjudicate the dispute. This ID Amendment Act was repealed by Section 2 read with the First Schedule to the RA Act, 2016.
According to the Tripura High Court, the ID Amendment Act, 2010 was repealed by the RA Act, 2016 and once such repeal took place, the Labour Court concerned “lacked inherent jurisdiction to accept applications” filed by respondent workmen before it.
The purpose and object of a Repealing and Amending Act and its effect
One of the earliest judgments on the effect of a repealing and Amending Act was delivered by the Supreme Court in Jethanand Betab v. State of Delhi (hereinafter referred to as “Jethanand Betab”) . The case before the Supreme Court dealt with the prosecution and conviction of the petitioner under Section of the (hereinafter referred to as “the Telegraphy Act”). Section 6(1-A) was inserted into the Telegraphy Act by the Wireless Telegraphy (Amendment) Act, 1949. A contention was raised by the counsel that since the aforementioned Amendment Act was repealed by the Repealing and Amending Act, 1952, the conviction and sentence of the petitioner under Section 6(1-A) could not be sustained.
This contention was rejected by the Supreme Court. According to the Court:
6. … the main object of the 1952 Act was to only strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever-increasing spate of legislation and to remove confusion from the public mind. The object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949, along with similar Acts, which had served its purpose. (emphasis supplied)
The Supreme Court relied on Halsbury’s Laws of England which states:
A Statute Law Revision Act does not alter the law, but simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos.
A passage from the decision of Chakravartti, C.J. of the Calcutta High Court in Khuda Bux v. Caledonian Press (hereinafter referred to as “Khuda Bux”) was also relied on by the Supreme Court in Jethanand Betab which clearly sets out the purpose and object of a Repealing and Amending Act. The relevant portion of the judgment of the Calcutta High Court reads as follows:
8. … Such Acts have no legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The only object of such Acts which, in England, are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care….
Both the aforesaid judgments of Jethanand Betab and Khuda Bux have been referred to by a Division Bench of the Bombay High Court in K.K. Vasudeva Kurup v. Union of India (hereinafter referred to as “Vasudeva Kurup”). A petition was filed before the Bombay High Court, seeking directions and orders against the Union of India and the other respondents including,
“1. … courts of law everywhere in India, not to take cognizance of any case or proceeding under Sections to of the as amended by the (Act 66 of 1988) .
According to the petitioner, the aforesaid Amendment Act of 1988 that had inserted Chapter XVII of the Negotiable Instruments Act, 1881, namely, Sections 138 to 142 had stood repealed by the and therefore, according to the petitioner since the Amending Act of 1988 was entirely repealed, Chapter XVII i.e. Section to of the also stood repealed. According to the Bombay High Court, the case before it was governed by Section of the and after relying Jethanand Betab and Khuda Bux , the Court opined,
14. … the ratio laid down in Jethanand Betab directly covers the case on hand and answers the question raised before us by the petitioner. To us, it is clear that once an amendment was made in 1881 Act by the Amending Act of 1988 and it had been brought into force, it has served its purpose and amended the original Act. Its object was to plant necessary amendment in the 1881 Act. Once such planting has been effected, the Amending Act (Planting Act), having achieved its object, lost its efficacy. It was thereafter not necessary to continue the Amending Act in a statute book. There are several such Amending Acts under which amendments have been made in original Acts. Once the plant takes root in the original Act, an appropriate step is required to be taken by the legislature. If no action is taken, hundreds and thousands of such Amending Acts continue to remain in statute books. A device is, therefore, adopted by the legislature to repeal all such Amending Acts, which would repeal only those Acts i.e. Amending Acts. But such repeal does not affect original Acts which already stood amended. As observed in Clarke v. Bradlaugh ,
Where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second.
(emphasis supplied)
The Bombay High Court therefore held that the repeal of the Amending Act of 1988 does not affect the amendment in the .
The decision of the Queen’s Bench in Clarke v. Bradlaugh relied upon by the Bombay High Court in Vasudeva Kurup was also referred to by a five-Judge Bench of the Supreme Court in Collector of Customs v. Nathella Sampathu Chetty in which the Supreme Court had held that changes or repeal of the incorporated statute is not intended per se to affect the operation of the incorporating legislation.
A similar view as taken by the Bombay High Court in Vasudeva Kurup also finds place in an earlier judgment of the Kerala High Court in Raman Sahadevan v. R. Kesavan Nair which reads as follows:
6. In our opinion, the purpose of an amending Act is to plant the necessary amendments in the parent or the main Act, and once such planting has been effected, the Planting Act (the amending Act), having served its purpose, need not any more remain there to tend the plant, as it were: the plant has taken root in the main Act, and thereafter, the amending Act has only to be repealed: and if an amending Act is so repealed by a repealing Act, the repeal does not affect the plant, the amendment already planted in the main Act….
In the judgment delivered in Independent Schools’ Federation of India v. Union of India , the Supreme Court had an opportunity to consider the RA Act, 2016 which had repealed the Payment of Gratuity (Amendment) Act, 2009 by which Section 13-A was introduced into the . Section 4 of the RA Act, 2016 clearly states that “the repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to”. The Supreme Court after referring to Section 4 of the RA, Act 2016, Section of the and the judgments of Jethanand Betab and Khuda Bux stated that,
28. … the principle that, where the repealing Act states that the enactment thereof shall not affect any Act in which the enactment has been applied, incorporated or referred to, means that there is an independent existence of the two Acts and, therefore, even on the death of the amending Act, its offspring survives in the incorporating Act.
Concluding comments
Therefore, considering what is set out above, the view of the Tripura High Court that the Labour Court could not proceed under Section 2-A(2) of the ID Act is clearly erroneous, per incuriam and contrary to the principle of law laid down by the Supreme Court in Jethanand Betab followed by various High Courts and is also contrary to Section 4 of the RA Act, 2016, which expressly saves other enactments in which the repealed enactment has been applied or incorporated.
* Practising Advocate at the Bombay High Court. Author can be reached at dormaandalal@gmail.com.
** Labour practitioner practising in Pune and the Bombay High Court. Author can be reached at varunrjoshi@gmail.com.
WP(C) No. 457 of 2020 decided on 10-9-2021. [pending uploading]
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Glenmark Pharmaceuticals Ltd. v. State of Tripura, WP (C) No. 457 of 2020 decided on 10-9-2021, para 9.[pending uploading]
Vide Notification No. S.O. 2278(E), Central Government notified 15-9-2010 as the date on which the ID Amendment Act came into force.
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Reference was made to Halsbury’s Laws of England, 2nd Edn., Vol. 31, p. 563.
Khuda Bux v. Caledonian Press, .
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K.K. Vasudeva Kurup v. Union of India, , para 1.
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K.K. Vasudeva Kurup v. Union of India, paras 3 and 4.
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K.K. Vasudeva Kurup v. Union of India, .
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Independent Schools’ Federation of India v. Union of India, .
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