Madras High Court
Amalorpavam Higher Secondary School vs The Union Territory Of Puducherry on 21 January, 2025
2025:MHC:184
W.P.No.13619 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 21.10.2024
Pronounced on 21.01.2025
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.13619 of 2024 and
W.M.P.No.14771 of 2024
Amalorpavam Higher Secondary School,
Rep. by its Principal,
Lourdes Campus, Vanarapet,
Puducherry - 605 001.
... Petitioner
Vs.
1.The Union Territory of Puducherry,
Rep. by the Under Secretary to Govt. (Labour),
Labour Department,
Govt. of Puducherry, Puducherry.
2.The Labour Officer (Conciliation),
Office of the Labour Officer (Conciliation),
15, First Floor, Nehru Nagar,
Puducherry 605 011.
3.A.John Bosco ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
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W.P.No.13619 of 2024
India, to issue a Writ of Certiorari, to call for the records relating to the
Notification bearing G.O.Rt.No.47/LAB/AIL/S/2024 dated 22.04.2024,
on the file of the 1st respondent and quash the same.
For Petitioner : Mr.T.P.Manoharan, Senior Counsel for
Mr.T.M.Naveen
For Respondents : Mr.M.Nirmal Kumar,
Govt. Advocate (Pondy) for R1 & R2
Mr.Balan Haridas, for R3
ORDER
The petitioner has filed this Writ Petition seeking issuance of a
Writ of Certiorari, to call for the records relating to the Notification
bearing G.O.Rt.No.47/LAB/AIL/S/2024 dated 22.04.2024, on the file of
the 1st respondent and quash the same.
2. Heard Mr.T.P.Manoharan, learned Senior Counsel for the
petitioner, Mr.M.Nirmal Kumar, learned Government Advocate (Pondy)
for R1 & R2 and Mr.Balan Haridas, learned counsel for R3 and perused
the materials available on record.
3. The petitioner has challenged the notification of the first
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respondent dated 22.04.2024 through which a reference has been made
by the first respondent Government in respect of the dispute raised by the
third respondent who was a driver in the petitioner School.
4. The brief facts of the case are as follows:
The petitioner is an Unaided Private Minority School recognised
under the National Commission for Minority Educational Institutions.
The third respondent was appointed as a temporary driver in the
petitioner school on 21.07.2001 and his services have been regularised
with effect from 01.07.2006. As lot of complaints have been received
from the parents of the students against the third respondent that he was
temperamental, rude, rough, discourteous and inconsiderate to children,
he was asked to handle the load carrier vehicle for transporting stationary
and other materials required for the School.
4.1. From 01.06.2015, the third respondent deliberately disobeyed
the instructions of the School and refused to drive the Tata Ace Van
assigned to him and claimed that he should be allowed to take only
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W.P.No.13619 of 2024School Bus. On 10.06.2015, he had given a letter to the petitioner school
by making unnecessary allegations and marked copies of the said letter to
the various authorities including the second respondent. The Pondicherry
School Education Act and Rules are applicable to both the petitioner and
the third respondent and hence, the petitioner School had initiated
disciplinary action against the third respondent for the misconduct
committed by him under the said Act and Rules.
4.2. The Industrial Dispute Act is not applicable to the petitioner
School and the third respondent. Based on the copy of the letter marked
to the second respondent / Labour Officer (Conciliation), he assumed
power and authority and had issued notice dated 10.02.2016 to the
petitioner School calling upon the School to participate in the
conciliation proceedings. The petitioner School had challenged the same
by way of filing a Writ Petition in W.P.No.9524 of 2016. By an order
dated 17.07.2023, this Court has directed the second respondent to
consider the reply of the petitioner School dated 13.08.2015 and pass
appropriate orders on merits. However, the second respondent once again
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W.P.No.13619 of 2024issued a notice on 12.10.2023 to the petitioner School and the petitioner
had given a detailed reply on 18.11.2023 and the letter dated 21.11.2023.
But, the second respondent has proceeded with the conciliation
proceedings. So, a contempt petition was filed by the petitioner in
Cont.P.No.3059 of 2023.
4.3. In the meanwhile, the second respondent proceeded with the
conciliation and filed a failure report on 13.03.2024 to the first
respondent. The petitioner has sent a letter to the first respondent also
narrating all the facts. But without considering the same, the first
respondent has given a summary notification by referring a non-existed
industrial dispute to the Labour Court, Puducherry. Hence, the petitioner
has filed this Writ Petition challenging the above notification.
5. Mr.T.P.Manoharan, learned Senior Counsel for the petitioner
submitted that as per Section 19(1) of the Pondicherry School Education
Act, 1987, all the teachers and other persons employed in any recognised
school shall be governed by the Code of Conduct prescribed under
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Appendix – II of the Pondicherry School Education Rules, 1996. As per
the Code of Conduct found in Appendix – II of the Rules, “all the drivers
of the School shall be at the disposal of the School, co-operate with the
School and serve in all its activities at the assigned places, carry out the
works assigned to them faithfully and diligently and maintain discipline
at all times. The third respondent ought to have been co-operative in
carrying out the works assigned to him by maintaining discipline”. But
the third respondent disobeyed the instructions of the School and refused
to drive the Tate Ace Van, by demanding to engage him to drive Ashok
Leyland Mini Bus and created unnecessary problems and he remained
absent from duty unauthorisedly. So it is claimed by the petitioner that as
per Section 19(1) of the Pondicherry School Education Act and Rule 48
of the Pondicherry School Education Rules, the third respondent is liable
for disciplinary action for the misconducts committed by him.
5.1. In accordance with the procedure prescribed under Rule 54 of
the Pondicherry School Education Rules, 1996, the disciplinary authority
had initiated disciplinary action and issued charge sheet on 29.07.2015
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calling upon the third respondent to submit his explanation. The third
respondent submitted his explanation on 21.10.2015, but it was found to
be unsatisfactory. So, an Enquiry Officer was appointed in accordance
with Rule 54(1)(ii) of the Pondicherry School Education Rules, 1996
through a memorandum dated 27.02.2016. The third respondent had
actively participated in the disciplinary enquiry and it was pending.
Under such circumstances, the first respondent has issued a notification
by referring the industrial dispute to the Labour Court which is not
maintainable.
6. Mr.M.Nirmal Kumar, learned Government Advocate (Pondy) for
the respondents 1 and 2 submitted that the petitioner having participated
in the reference, cannot challenge the same by filing a Writ Petition. As
there is no lack of jurisdiction or delay and laches, no grounds are
available to the petitioner to challenge the notification issued by the first
respondent. The order passed in W.P.No.9524 of 2016, did not set aside
the reference, instead the second respondent / Conciliation Officer has
been directed to consider the reply of the petitioner School and pass
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orders. Hence, the petitioner does not have any locus to raise the legality
of the reference in this Writ Petition. During the pendency of the enquiry
under any other Act, if a reference is made by the Government under
Section 10 of the Industrial Disputes Act, pending disciplinary
proceedings cannot be continued.
7. Mr.Balan Haridas, learned counsel for the third respondent
submitted that as the two enactments viz., the Industrial Disputes Act and
the Pondicherry School Education Act comes to the benefit of the
employee, he can exercise his right under the doctrine of election. As the
third respondent thought it fit that the Industrial disputes Act is beneficial
to him, he had chosen to file an industrial dispute. As the third
respondent was terminated orally and was not allowed to work, he had
raised the industrial dispute.
8. Admittedly, in the earlier Writ Petition filed in W.P.No.9524 of
2016 the notice issued by the second respondent calling upon the
petitioner School for enquiry / conciliation was under challenge. In the
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order dated 17.07.2023, the competency of the second respondent to
make a reference with regard to the third respondent’s employment with
the petitioner has not been dealt. The order has simply directed the
second respondent to consider the reply of the petitioner and then pass
orders. Consequent to the said direction, the second respondent has made
a conciliation failure report and submitted it to the Government.
Thereafter, the first respondent Government had issued a notification for
referring the dispute to the Labour Court.
9. The petitioner School is a recognised Unaided Private Minority
School which is governed under the Pondicherry School Education Act.
According to Section 2(g) of the Act, the employee of the School covered
under the Act means “a teacher and it included every other employee
working in a recognised school”. Undoubtedly, the third respondent who
has been appointed as a driver would come under the purview of the
definition of “employee” as found under the Pondicherry School
Education Act.
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10. Section 19 of the Act would prescribe that “every teacher and
every other person employed in any recognised school shall be governed
by such Code of Conduct that may be prescribed and any teacher or
other person so employed shall be subjected to disciplinary action for
violation of the Code of Conduct”. Section 21 of the Act would state that
“any teacher or other person employed in any recognised school is
dismissed, removed or reduced in rank or whose appointment is
otherwise terminated, can prefer an Appeal against the order to such
authority or officer not below the rank of the Director of Education
(Pondy)”. The Act also contains the most important provision in Section
25 which would state that the provisions of this Act would have the
overriding effect for any other law at that time in force.
11. The Code of Conduct was given under Appendix – II of the
Pondicherry School Education Rules, 1996. The third respondent being
the employee of the School, no doubt he is subject to the Code of
Conduct found under Appendix – II r/w Rule 48 of the Pondicherry
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School Education Rules. As per the Code of Conduct, every employee
should be at the disposal of the Institution and serve the Institution in all
its activities in such places as he may be posted from time to time. The
allegation against the third respondent is that he was instructed to handle
a Carrier Van and he protested that he would handle only School Bus.
12. The third respondent who was employed as a driver, is
expected to handle any kind of vehicle of the School without insisting
that he would operate only a certain vehicle. In fact, the third respondent
himself had written letters to the petitioner School asking them to allow
him to operate the School Bus. As the petitioner was not willing to allow
the third respondent to engage himself with the School Bus, there
appeared some unwillingness on the part of the third respondent and that
had resulted in the disciplinary action initiated against him. When the
same was pending, the third respondent has sent letters to various
authorities including the second respondent.
13. According to the petitioner, the pendency of the disciplinary
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action cannot be considered as a dispute arising under the Industrial
Disputes Act unless it had culminated into an order of dismissal. Even in
the case of suffering the major penalty, the employees have got their
statutory remedy only by way of preferring a First and Second Appeal
under Sections 21 and 22 respectively of the Act. So it is claimed by the
petitioner that in view of the non obstante clause and overriding effect
assured under Section 25 of the Act, the Industrial Dispute Act cannot be
made applicable and the second respondent has exceeded his jurisdiction
in conducting the conciliation proceedings and submitted the failure
report which had culminated into the impugned order of reference before
the Labour Court.
14. However, it is claimed by the third respondent that he would
fall under the definition of workman under the Industrial Disputes Act as
well and hence, he is entitled to invoke a better remedy available to him
by choosing among multiple remedies available under more than one
statute.
15. Before adverting into the jurisdiction, it is essential to have an
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understanding about Section 10 of the Industrial Disputes Act through
which a reference is being made. As per Section 10 of the Industrial
Disputes Act, “before making any reference, the Government has to form
an opinion as to the existence of an industrial dispute or even an
apprehension about the dispute and then, pass an order in writing”. Now
a question would come whether Section 10 refers to the industrial dispute
defined under Section 2(k) or under Section 2-A.
16. No doubt Section 2-A refers about a dispute arising out of
discharge, dismissal or retrenchment of an individual and it is a latest
addition by way of an amendment to the Industrial Dispute Act by the
Amendment Act 35 of 1965 with effect from 01.12.1965. The above
amendment had enhanced the scope of the industrial dispute as inclusive
of disputes between the employer and an individual workman. But
however, a separate mechanism has been prescribed under Section 2-A
(2), irrespective of Section 10 of the Act. And the disputes are limited to
those arising out of discharge, dismissal and retrenchment of individual
workman and by prescribing a limitation of three years [(Section 2-A(3)]
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from the date of discharge, dismissal, retrenchment or termination.
17. So, a reference under Section 10 is available only to those
disputes defined under Section 2(k). The term “industrial dispute”
defined under Section 2(k) of the Industrial Dispute Act is as below:
“2(k) “industrial dispute” means any dispute or
difference between employers and employers, or between
employers and workmen, or between workmen and
workmen, which is connected with the employment or
non-employment or the terms of employment or with the
conditions of labour, of any person.”
18. From the above definition of the term “industrial dispute” seen
under Section 2(k), it can be safely concluded that it indicates and
includes only those collective difference and not one to one difference
found under Section 2-A. To make it more specific to attract a reference
under Section 10, the dispute or difference should be between, (i) the
employers and the employers, (ii) the employers and the workmen and
(iii) the workmen and workmen. Further, the scope of such disputes can
span from employment, non-employment or the terms of the
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employment.
19. So far as the dispute between an individual and the employer is
concerned, the remedy by way of raising an industrial dispute can be
availed only under Section 2-A and not under Section 2(k). The case of
the third respondent is that he has been illegally terminated and hence,
aggrieved. Such kind of individual grievance can be considered as an
industrial dispute but only under Section 2(A) of the Industrial Disputes
Act. If an individual workman is affected and wishes to raise an
industrial dispute, he can straight away file an application to the Labour
Court after expiry of 45 days from the date he has made an application to
the Conciliation Officer. In the instant case, even if the Conciliation
Officer is assumed to have the jurisdiction to decide the application of
the third respondent, it should have been treated as an individual dispute
raised by an individual workman and not a collective dispute for which
reference can be made by the Government under Section 10(1)(c) of the
Act.
20. So the very course adopted by the second respondent in
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inviting a reference from the first respondent Government under Section
10(1)(c) and 10-B itself is improper, apart from the fact of eligibility of
the third respondent to raise an industrial dispute under the Industrial
Disputes Act.
21. Even the third respondent does not contend that he cannot be
governed under the Pondicherry School Education Act and Rules, but he
claims that he has more than one remedy and hence, he opted to choose
the remedy under the Industrial Disputes Act. In this regard, it is relevant
to refer Section 25(J) of the Industrial Dispute Act which reads as under:
“25-J. Effect of laws inconsistent with this Chapter —
(1) The provisions of this Chapter shall have effect
notwithstanding anything inconsistent therewith
contained in any other law under the industrial
employment (Standing Orders) Act, 1946.
(2) For the removal of doubts, it is hereby declared
that nothing contained in this Chapter shall be deemed to
affect the provisions of any other law for the time being
in force in any State insofar as that law provides for the
settlement of industrial disputes, but the rights andPage No.16 of 38
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W.P.No.13619 of 2024liabilities of employers and workmen insofar as they
relate to lay-off and retrenchment shall be determined in
accordance with the provisions of this Chapter.”
22. The proviso to Section 25(J)(1) states that a workman is
entitled to get more favourable benefits available to him than the benefits
provided under the Industrial Disputes Act. It has a non obstante clause
and hence the Act will have an effect notwithstanding anything
inconsistent contained in any other law under the Industrial Employment
(Standing Orders) Act, 1946.
23. However, the sub-clause (2) of Section 25(J) would state that
the provisions of the Industrial Disputes Act shall not affect the
provisions of any other law of the State for the time being in force
insofar as that law provides for the settlement of industrial disputes. Even
in that case the rights and liabilities of the employees and workmen
relating to lay off or retrenchment can be dealt only in accordance with
the provisions of the Industrial Disputes Act.
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24. Now coming back to the Pondicherry School Education Act, it
is a self contained Act which has all the provisions for the conduct and
discipline of the employees of the School. Any employee violating the
Code of Conduct will be subjected to disciplinary proceedings and such
proceedings shall be initiated in accordance with the procedure laid
down therein. The aggrieved employee has also got avenues of appeal in
case he was punished at the end of the disciplinary proceedings. Section
25 of the Pondicherry School Education Act also has got a non obstante
clause for its application over any other Act and to have an overriding
effect.
25. A contention was raised by the third respondent that the
concept of overriding effect would occur only when there is an
inconsistency between the two provisions of two different Acts and there
is no inconsistency between the provisions of the Industrial Disputes Act
and the Pondicherry School Education Act. So it is claimed that the third
respondent can invoke a remedy under the Industrial Disputes Act also.
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26. Under the scheme of Pondicherry School Education Act,
authority has been given to the School Management to deal with its
employees whenever they violate the rules of discipline attached to their
service. The State Act came into force subsequent to the Industrial
Disputes Act.
27. As per Article 254 of the Constitution of India, when there is
an inconsistency between the laws made by the Parliament and the laws
made by the Legislation of the State in respect of any one of the matters
enumerated in the Concurrent List, the law made by the Parliament
irrespective of the matter whether it has been passed before or after the
law made by the State, shall prevail over the State law. The State law to
the extent of the repugnancy shall be void. But as per clause 2 of the
Article 254, any of the provisions of the State law in respect of the
matters enumerated in the Concurrent List has any provision repugnant
to any of the provisions of the earlier law made by the Parliament, the
law made by the State shall if it has been reserved for consideration of
the President and received his assent, later would prevail in the State.
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However, this shall not prevent Parliament from enacting at any time any
law with respect to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature of the State.
28. In this regard, it is relevant to refer the judgment of the Hon’ble
Supreme Court held in the case of Krishna District Co-operative
Marketing Society Limited, Vijayawada Vs. N.V.Purnachandra Rao
and Others, reported in (1987) 4SCC 99. In the said judgment paragraph
Nos. 8 and 9 are extracted hereunder:
“8. We shall now proceed to consider the merits of
the contention that the State Act which is a later Act and
which has received the assent of the President should
prevail over the provisions of Chapter V-A of the Central
Act. The above contention is based on Article 254(2) of the
Constitution and the argument is that the provisions
of section 40 which deal with termination of service, in a
shop or an establishment contained in the State Act
which is enacted by the State Legislature in exercise of its
powers under Entry 22 of List III of the Seventh Schedule
to the Constitution being repugnant to the provisions
contained in Chapter V-A of the Central Act which is an
earlier law also traceable to Entry 22 of the List II1 ofPage No.20 of 38
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W.P.No.13619 of 2024the Seventh Schedule to the Constitution should prevail
as the assent of the President has been given to the State
Act. It is true that the State Act is a later Act and it has
received the assent of the President but the question is
whether there is any such repugnancy between the two
laws as to make the provisions of the Central Act relating
to retrenchment ineffective in the State of Andhra
Pradesh. It is seen that the State Act does not contain any
express provision making the provisions relating to
retrenchment in the Central Act ineffective insofar as
Andhra Pradesh is concerned. We shall then have to
consider whether there is any implied repugnancy
between the two laws. Chapter V-A of the Central Act
which is the earlier law deals with cases arising out of
lay-off and retrenchment. Section 25J of the Central Act
deals with the effect of the provisions of Chapter V-A on
other laws inconsistent with that Chapter. Sub-section (2)
of section 25J is quite emphatic about the supremacy of the
provisions relating to the rights and liabilities arising out
of lay-off and retrenchment. These are special provisions
and they do not apply to all kinds of termination of
services. Section 40 of the State Act deals generally with
termination of service which may be the result ofPage No.21 of 38
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W.P.No.13619 of 2024misconduct, closure, transfer of establishment etc. If
there is a conflict between the special provisions
contained in an earlier law dealing with retrenchment
and the general provisions contained in a later law
generally dealing with terminations of service, the
existence of repugnancy between the two laws cannot be
easily presumed. In Maxwell on the Interpretation of
Statutes, (12th Edn. ) at page 196 it is observed thus:
“Now if anything be certain it is this, “said the
Earl of Selborne L.C. in The Vera Cruz,
(1884) 10 App. Cas, 59 at p. 68 “that where
there are general words in a later Act capable
of reasonable and sensible application
without extending them to subjects specially
dealt with by earlier legislation, you are not
to hold that earlier and special legislation
indirectly repealed, altered, or derogated from
merely by force of such general words,
without any indication of a particular
intention to do so.” In a later case, Viscount
Haldane said: “We are bound ……. to apply a
rule of construction which has been
repeatedly laid down and is firmlyPage No.22 of 38
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W.P.No.13619 of 2024established. It is that wherever Parliament in
an earlier statute has directed its attention to
an individual case and has made provision for
it unambiguously, there arises a presumption
that if in a subsequent statute the Legislature
lays down a general principle, that general
principle is not to be taken as meant to rip up
what the Legislature had before provided for
individually, unless an intention to do so is
specially declared. A merely general rule is
not enough even though by its terms it is
stated so widely that it would, taken by itself,
cover special cases of the kind I have referred
to.”
9. We respectfully agree with the rule of
construction expounded in the above passage. By
enacting section 25J(2) Parliament, perhaps, intended that
the rights and liabilities arising out of lay-off and
retrenchment should be uniform throughout India where
the Central Act was in force and did not wish that the
State should have their own laws inconsistent with the
Central law. If really the State Legislature intended that
it should have a law of its own regarding the rights and
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liabilities arising out of retrenchment it would have
expressly provided for it and submitted the Bill for the
assent of the President. The State Legislature has not
done so in this case. Section 40 of the State Act deals
with terminations of service generally. In the above
situation we cannot agree with the contention based
on Article 254(2) of the Constitution since it is not made
out that there is any implied repugnancy between the
Central law and the State law.”
29. But the nature of the Industrial Disputes Act which is
comprehensive and special with regard to all kind of disputes between
the employer and the workmen assumes a special status into it. Though
it is earlier in point of time, no doubt it is a special Act. The superseding
effect of the Parliament law and the State law would figure only if there
is any repugnancy between any Central or State law. Both the Acts
would fall under Entry 24 of the Concurrent List of Schedule VII. The
Pondicherry School Education Act got the assent of the President on 28th
October 1987, which is later in point of time. But the Pondicherry School
Education Act cannot be considered as a special Act which governs the
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industrial dispute and it has the characteristics of regulating and ensuring
the conduct and discipline of the employees of the school.
30. In the case of Life Insurance Corporation of India Vs. D.J.
Bahadur and others, reported in (1981) 1 SCC 315, the Supreme Court
has held that the Life Insurance Corporation could not prevail against the
continuous flow of the benefits under the Industrial Disputes Act because
the Industrial Disputes Act would prevail over the Life Insurance
Corporation Act. In the said case, the Hon’ble Supreme Court has
observed that special and general is wholly a creature of the subject and
context and may vary with situation, circumstances and angle of vision.
It is ultimately held that the regulation of condition of services including
the non-payment of bonus enjoyed by the Corporation under the Life
Insurance Act, stems out only from the very general Act and hence that
cannot substitute or supplant the Industrial Disputes Act which itself a
special legislation with regard to the disputes between the workmen and
their employers.
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31. It is observed by the Supreme Court that the legal maxim
‘generalia specialibus non derogant’ is applicable only when there is a
conflict between a special and a general statute. The Pondicherry School
Education Act is not an exclusive later act which deals with the issues of
labour dispute. It is a general act which is applicable to all those schools
in Pondicherry. But the prior enactment of the Industrial Dispute Act is a
special Act exclusively deals with the labour disputes of all establishment
falling with in its ambit and the remedies are available to all those who
have been recognised as workman under the act. The rules of
repugnancy will not apply if the earlier act happens to be a special one
and the later Act is only a general one. The task of finding out which is
special depends up on the scope of the respective acts. The same has
been analysed in detail by the Supreme Court in LIC case and those
special paragraphs of the said judgment is extracted as below:
“49. The next logical question then is as to whether
the ID Act is a general legislation pushed out of its
province because of the LIC Act, a special legislation in
relation to the Corporation employees. Immediately, wePage No.26 of 38
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W.P.No.13619 of 2024are confronted with the question as to whether the LIC Act
is a special legislation or a general legislation because
the legal maxim generalia specialibus non derogant is
ordinarily attracted where there is a conflict between a
special and a general statute and an argument of implied
repeal is raised. Craise states the law correctly:
“The general rule, that prior statutes are
held to be repealed by implication by subsequent
statutes if the two are repugnant, is said not to
apply if the prior enactment is special and the
subsequent enactment is general, the rule of law
being, as stated by Lord Selbourne in Mary
Seward v. Veera Cruz(3) “that where there are
general words in a later Act capable of
reasonable and sensible application without
extending them to subjects specially dealt with by
earlier legislation, you are not to hold that
earlier and special legislation indirectly
repealed, altered, or derogated from merely by
force of such general words, without any
indication of a particular intention to do so.”
“There is a well-known rule which has
application to this case, which is that aPage No.27 of 38
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W.P.No.13619 of 2024subsequent general Act does not affect a prior
special Act by implication. That this is the law
cannot be doubted, and the cases on the subject
will be found collected in the third edition of
Maxwell is generalia specialibus non derogant-
i.e. general provisions will not abrogate special
provisions. “When the legislature has given its
attention to a separate subject and made
provision for it, the presumption is that a
subsequent general enactment is not intended to
interfere with the special provision unless it
manifests that intention very clearly. Each
enactment must be construed in that respect
according to its own subject matter and its own
terms.”
50. The crucial question which demands an
answer before we settle the issue is as to whether the LIC
Act is a special statute and the ID Act a general statute
so that the latter pro tanto repeals or prevails over the
earlier one. What do we mean by a special statute and, in
the scheme of the two enactments in question, which can
we regard as the special Act and which the general ? An
implied repeal is the last judicial refuge and unless
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W.P.No.13619 of 2024
driven to that conclusion, is rarely restored to. The
decisive point is as to whether the ID Act can be
displaced or dismissed as a general statute. If it can be
and if the LIC Act is a special statute the proposition
contended for by the appellant that the settlement
depending for its sustenance on the ID Act cannot hold
good against Sect.11 and Sec.49 of the LIC Act, read
with Reg. 58 thereunder. This exercise constrains me to
study the scheme of the two statutes in the context of the
specific controversy I am dealing with.
51. There is no doubt that the LIC Act, as its long
title suggests, is an Act to provide for the nationalisation
of life insurance business in India by transferring all
such business to a Corporation established for the
purpose and to provide for the regulation and control of
the business of the Corporation and for matters
connected therewith or incidental thereto. Its primary
purpose was to nationalise private insurance business
and to establish the Life Insurance Corporation of India.
Inevitably, the enactment spelt out the functions of the
Corporation, provided for the transfer of existing life
insurance business to the Corporation and set out in
detail how the management, finance, accounts and audit
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W.P.No.13619 of 2024
of the Corporation should be conducted. Incidentally,
there was provision for transfer of service of existing
employees of the insurers to the Corporation and, sub-
incidentally, their conditions of service also had to be
provided for. The power to make regulations covering all
matters of management was also vested in appropriate
authorities. It is plain and beyond dispute that so far as
nationalisation of insurance business is concerned, the
LIC Act is a special legislation, but equally indubitably,
is the inference, from a bare perusal of the subject,
scheme and sections and understanding of the anatomy
of the Act that it has nothing to do with the particular
problem of disputes between employer and employees, or
investigation and adjudication of such disputes. It does
not deal with workmen and disputes between workmen
and employers or with industrial disputes. The
Corporation has an army of employees who are not
workmen at all. For instance, the higher echelons and
other types of employees do not fall within the scope of
workmen as defined in Sec.2(s) of the ID Act. Nor is the
Corporation’s main business investigation and
adjudication of labour disputes any more than a motor
manufacturer’s chief business is spraying paints!
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52. In determining whether a statute is a special or
a general one, the focus must be on the principal subject
matter plus the particular perspective. For certain
purposes, an Act may be general and for certain other
purposes it may be special and we cannot blur
distinctions when dealing with finer points of law. In law,
we have a cosmos of relativity, not absolutes-so too in
life. The ID Act is a special statute devoted wholly to
investigation and settlement of industrial disputes which
provides definitionally for the nature of industrial
disputes coming within its ambit. It creates an
infrastructure for investigation into, solution of and
adjudication upon industrial disputes. It also provides
the necessary machinery for enforcement of awards and
settlements. From alpha to omega the ID Act has one
special mission-the resolution of industrial disputes
through specialised agencies according to specialised
procedures and with special reference to the weaker
categories of employees coming within the definition of
workmen. Therefore, with reference to industrial disputes
between employers and workmen, the ID Act is a special
statute, and the LIC Act does not speak at all with
specific reference to workmen. On the other hand, its
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powers relate to the general aspects of nationalisation,
or management when private businesses are nationalised
and a plurality of problems which, incidentally, involve
transfer of service of existing employees of insurers. The
workmen qua workmen and industrial disputes between
workmen and the employer as such, are beyond the orbit
of and have no specific, or special place in the scheme of
the LIC Act. And whenever there was a dispute between
workmen and management the ID Act mechanism was
resorted to.
53. What are we confronted with in the present
case, so that I may determine as between the two
enactments which is the special ? The only subject which
has led to this litigation and which is the bone of
contention between the parties is an industrial dispute
between the Corporation and its workmen qua workmen.
If we refuse to be obfuscated by legal abracadabra and
see plainly what is so obvious, the conclusion that flows,
in the wake of study I have made, is that vis a vis
‘industrial disputes’ at the termination of the settlement
as between the workmen and the Corporation the ID Act
is a special legislation and the LIC Act a general
legislation. Likewise, when compensation on
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nationalisation is the question, the LIC Act is the special
statute. An application of the generalia maxim as
expounded by English text-books and decisions leaves us
in no doubt that the ID Act being special law, prevails
over the LIC Act which is but general law.”
32. After making a thorough discussion on the concept of
repugnancy between the later general Act and the earlier special Act and
the resultant overriding effect, the following conclusions have been
arrived by the Supreme Court in the above Life Insurance Corporation of
India case under paragraph No.115 and it is extracted hereunder:
“115. The criteria deducible from the texts of the
three standard works just above-quoted are stated below:
(i) The legislature has the undoubted right to alter
a law already promulgated by it through subsequent
legislation.
(ii) A special law may be altered, abrogated or
repealed by a later general law through an express
provision.
(iii) A later general law will override a prior
special law if the two are so repugnant to each other that
they cannot coexist even though no express provision inPage No.33 of 38
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W.P.No.13619 of 2024that behalf is found in the general law.
(iv) It is only in the absence of an express
provision to the contrary and of a clear inconsistency
that a special law will remain wholly unaffected by a
later general law.”
33. The Pondicherry School Education Act regulates the matters
connecting to school education which is inclusive of Code of Conduct
that should be followed by the employees of the School. As per the Act,
the School Management has got right to initiate action against the
employees for any misconduct. It does not provide any mechanism for
settlement of a dispute between the employer and the employee, as how
the Industrial dispute Act provides.
34. Both the petitioner and the respondents have cited various
judgments in support of their respective arguments as to which of the Act
will prevail over the other in case of any inconsistency. The instant case
does not have any base on repugnancy or inconsistency. In fact both the
Acts work on different platform and entirely for different situations. In
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fact the applicability of the Industrial Dispute Act arises only after a
workman suffers a termination, which got confirmed by the Appellate
Authority. Hence all those judgements have not been taken up for
discussion, except to the extent they are necessary.
35. So far as the third respondent is concerned, he was subjected to
disciplinary proceedings and the same was pending for enquiry. Even
before the completion of the same, he has sent some applications to
various authorities including the second respondent and that was treated
by the second respondent as an application filed under Industrial
Disputes Act. The second respondent did not think for a moment whether
the disciplinary proceedings initiated against the third respondent has
been completed or not. Even when the petitioner School has submitted
its reply narrating all the incidents and also the fact that the disciplinary
proceedings against the third respondent was still pending, the second
respondent went on to conduct the conciliation proceedings as though
there is an industrial dispute and filed a failure report to the Government.
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36. The learned counsel for the third respondent cited the judgment
of the Hon’ble Supreme Court held in the case of Raj Kumar Vs. The
Director of Education and Others, reported in (2016) 6 SCC 541, in
support of his contention and submitted that the Industrial Disputes Act
would prevail over the State Act. But the above case revolves around the
retrenchment and hence, it has got no application to the facts of this case.
Despite the third respondent has got his own Conditions of Service and
Code of Conduct under the Pondicherry School Education Act, he had
straight away gone to the second respondent. Had the third respondent’s
termination was due to the retrenchment, no doubt he is entitled to raise a
dispute before the Labour Court in view of Section 25(J)(2) of the
Industrial Disputes Act. But it is not a case here. The third respondent
has raised an industrial dispute not only in a pre-matured manner and
completely deviating from the mechanism provided for individual
industrial dispute under Section 2-A of the Industrial Disputes Act.
37. Once the third respondent has chosen to subject himself to the
jurisdiction of the Enquiry Officer by filing his explanation, he ought to
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have waited for completion of the enquiry proceedings. Even without
any order of termination or any appeal preferred challenging the same,
the third respondent presumed termination and approached the second
respondent for conciliation. As the second respondent has exercised his
jurisdiction unnecessarily in a pending disciplinary action and the first
respondent has also made a reference to the Labour Court unmindful of
the individualistic and pending nature of the disciplinary proceedings,
the reference is liable to be set aside.
38. In the result, this Writ Petition is allowed and the impugned
Notification in G.O.Rt.No.47/LAB/AIL/S/2024 dated 22.04.2024 issued
by the first respondent is set aside. It is needless to add that the petitioner
is entitled to continue the disciplinary proceedings against the third
respondent from the stage where it was stalled and complete the same at
the earliest. No costs. Consequently, connected miscellaneous petition is
closed.
Index : Yes 21.01.2025
Speaking
Neutral Citation : Yes
gsk
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W.P.No.13619 of 2024
R.N.MANJULA, J.
gsk
To
1.The Under Secretary to Govt. (Labour),
The Union Territory of Puducherry,
Labour Department,
Govt. of Puducherry, Puducherry.
2.The Labour Officer (Conciliation),
Office of the Labour Officer (Conciliation),
15, First Floor, Nehru Nagar,
Puducherry 605 011.
W.P.No.13619 of 2024 and
W.M.P.No.14771 of 2024
21.01.2025
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