1. An important question involved for consideration in this appeal is, whether after the passing of the Motor Transport Workers' Act, 1961 (hereafter called the Central Act), the Bombay Shops and Establishment Act, 1948 (hereafter called the State Act) is by necessary implication repealed, so far as the motor transport workers are concerned.
2. The Inland Carriers, Gandhi Baugh, represented by its Managing Director - Lalbhai (Respondent NO. 1) was registered as a commercial establishment under the State Act since 1971 till 1978. Thereafter it did not renew the registration certificate as required by section 7(2-A) of the State Act. It, therefore, came to be prosecuted for contravention of the provisions of the said section, an offence punishable under section 52(a) of the State Act.
3. Respondent No. 1 contended that as an employer of a Motor Transport Undertaking, to which the provisions of the Central Act precisely apply, the same is duly registered under Section 3(1) of the Central Act. It is not necessary, therefore, to continue or renew the registration of the said undertaking under the State Act.
4. This contention of responded No. 1 prevailed with the learned Magistrate and he acquitted the accused and, hence, this appeal by the Corporation of the City of Nagpur.
5. It is not disputed that respondent No. 1 has fourteen employees, all engaged in the business of transport of goods and as such it is a Motor Transport Undertaking within the meaning of Section 1(4) of the Central Act.
6. The learned Magistrate, relying upon Bihar State Road Transport Corporation V. Orang Bahadur : (1967)ILLJ597Pat and Amamath Singh V. Presiding Officer, Industrial Tribunal Bihar : AIR1970Pat269 (Full Bench), found that it was not necessary for the accused to continue registration of its establishment under the State Act, as it was already registered under the Central Act.
7. Shri B. P. Dharmadhikari, the learned Counsel for the appellant, submitted that the above two rulings of the Patna High Court, upon which reliance has been placed by the learned Magistrate, never considered the effect section 37 of the Central Act. He, on the other hand, relied upon M/s. Annamalai Bus Transport Pvt. Ltd. V. D. Ramkrishna Pilla : (1967)ILLJ498Ker in support of his proposition that there is no repugnancy or inconsistency between the two Act and the learned Magistrate was not justified in holding that by the passing of the Central Act, the State Act by necessary implication is repealed. The registration under the State Act, according to him was, therefore, still necessary.
8. In the cited ruling of the Kerala High Court, the services of a temporary employee of the Annamalai Bus Transport were terminated. The appellate authority under the Kerala Shops & Commercial Establishments Act found that it was an illegal termination as notice of termination as contemplated under Section 18 of the Kerala Act was not issued and it, thereafter, directed reinstatement with back wages for the period he was kept out of employment. The said Transport Pvt. Ltd. filed a Writ Petition questioning the said order, on the ground that the Central Act dealing with the particular subject has replaced the Kerala Act. The question that was raised for consideration before the High court was, whether section 18 of the Kerala Act dealing with notice of termination can be regarded as inconsistent with or repugnant to the provisions of the Central act. Now, Section 18 of the Kerala Act (which is in pari materia with Section 66 of the State Act) contemplates giving of a notice of termination. There is no provision corresponding to section 18 of the Kerala Act in the Central Act. The High Court of Kerala held that as there was no provisions in the Central Act corresponding to section 18, it was difficult to see any case of repugnancy or inconsistency arising between the two. In the result, the argument that the Central Act having dealt with specifically with the conditions of service of motor transport workers, would exclude the Kerala Act dealing generally with the conditions of service of workmen in all shops and commercial establishments was, therefore, rejected and the Writ Petition was dismissed.
9. I was taken through the various provisions of the two Acts and though it is not necessary for me to set out elaborately a comparative chart, it may be pointed out that section 28 of the Central Act and sections 36 and 37 of the State Act make a provision for payment of wages during the leave period, with the only difference that under section 37 of the State Act, the employee is entitled to be paid half of the total amount due to him for the period of such leave before the leave begins.
10. Section 27 of the Central Act and section 35 of the State Act provide for annual leave with wages. Section 38-A of the State Act makes the provisions of the Workmen's Compensation Act 1923 applicable to the employees of an establishment, but no such provision is to be found in the Central Act.
11. Section 26 of the Central Act and section 63 of the State Act provide for extra wages for overtime. Section 65 of the State Act enjoins that no employee shall work in any establishment, nor shall any employer knowingly permit an employee to work, on a given holiday or during leave period. There is no such similar provision in the Central Act, but section 20 thereof provides for grant of a compensatory day of rest, in case a motor transport worker is deprived of any of the days of rest to which he is entitled. Regard being had to the nature of the duties required to be discharged by workers as carriers of goods or passengers; grant of a holiday on any fixed day is obviously not possible nor is it convenient or beneficial to such workers. A compensatory off on any other working day is, therefore, a good safe-guard to the workers entitling them to a day of rest.
12. Lastly, section 66 of the State Act requires a notice of termination of service to be given in respect of certain employees, except however when it is for misconduct. A contravention of this provision is also made punishable under section 52 of the Act. There is no such corresponding provision in the Central Act. The High Court of Kerala in the decisions cited above on construction of the proviso to section 37 of the Central Act, therefore, held that the two statutes, namely, the Central Act and the Kerala Act, in this matter could concurrently operate.
13. Now, the Central Act does not, in express terms, repeal the Local or State Acts. The question, therefore, is whether a repeal by necessary implication can be inferred. Whether a statute is repealed by implication either in its entirety or in part has to be gathered from the intent of the Legislature, which the Court can ascertain from the terms and provisions of the later enactment. True it is that ordinarily the presumption is against the intention of the legislature to repeal by mere implication. If, however, the provisions of the two enactments are sharply conflicting, are inconsistent or repugnant, that by itself may reveal an intent to repeal the existing law. Again, if the inconsistency relates to a part of the statute only, that part of the statute only would stand repealed to the extent of repugnancy. Where a later or new legislation substantially replaces or makes a complete substitute for the existing law, implied repeal can be inferred. As can be seen on a comparative study of the Central and the State Act, though the provisions of the Central Act may not be identical, they substantially provide for the same matters covered by the State Act, so far as the welfare of the motor transport workers is concerned, which is the object of the Central Legislation.
14. It was submitted by Shri Deopujari, the learned Counsel for respondent No. 1, that the Central Act intends to provide for the welfare of motor transport workers and regulates their conditions of work, that Section 1(4) of the Act applies to every motor transport undertaking employing five or more motor transport workers and since this respondent comes within the definition of a motor transport undertaking, it is the Central Act alone which would be applicable and the operation of the State Enactment would be excluded, which is also expressly provided for by section 37(1) of the Central Act.
15. Shri Dharmadhikari, the learned Counsel for the Corporation on the other hand, laid great stress on the definition of motor transport workers in section 2(h)(ii) of the Central act and submitted that the provisions of the State Act would still apply to all motor transport workers. Now, the expression 'motor transport undertaking' as defined in section 2(g) by the Central Act reads thus :
'(g) 'motor transport undertaking' means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward, and includes a private carrier.'
16. Section 3 of the Central Act says that every employer of a motor transport undertaking to which this Act applies shall have the undertaking registered under this Act.
17. The definition of 'motor transport worker' as defined in section 2(h) by the Central Act is in these terms :
'(h) 'motor transport worker' means a person who is employed in a motor transport undertaking directly or through an agency, whether for wages or not, to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time-keeper, watchman or attendant, but except in section 8 does not include -
(i) any such person who is employed in a factory as defined in the Factories Act, 1948;
(ii) any such person to whom the provisions of any law for the time being in force regulating the conditions of service of persons employed in shops or commercial establishments apply.
18. Now, section 8 of which exception is made in the above definition deals with the provision of canteens for which the State Government may make rules. What is not included in the definitions is - (i) any person who is employed in any factory run by the motor transport undertaking as defined in the Factories Act, 1948, and (ii) persons to whom provisions of any law regulating the conditions of service of persons employed in shops or commercial establishment apply. The expressions 'shop' and 'establishment' (which includes a commercial establishment) are defined by the State Act under Section 2(27) and (28), but they are not defined in the Central Act. The submission of Shri Dharmadhikari is that since motor transport undertaking also is a commercial establishment, the motor transport workers in such establishment are also not included and they would, therefore, be governed by the provisions of the State Act under section 2(h)(ii). Such an interpretation, in my opinion, in effect, would exclude every motor transport worker, though falling precisely within the earlier part of the definition clause including drivers, conductors, cleaners, etc., and leave none to be governed by the provisions of this Act. The definition clause of section 2(h) would stand virtually effaced and the very object of the Legislature would stand defeated. What the definition clause plainly means is that just as persons employed in any factory, if any run by the motor transport undertaking are left out as their welfare would be governed by the Factories Act, so also those employed in shops or commercial establishment, other than the motor transport undertaking (which expression is separately defined), are also left out to be governed by the provisions of any other law in force regulating their conditions of service.
19. Now, section 37 of the Central Act, which deals with the effect of laws and agreements inconsistent with the provisions of that Act, reads thus :
'37. (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act :
Provided that where under any such award, agreement, contract of service or otherwise a motor transport workers is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed as precluding any motor transport worker from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act.'
20. The sub-clause (1), in the first place, makes it clear that the provisions of this Act shall prevail in supersession of anything inconsistent contained in any other law or award or agreement of service. What is saved by the proviso, however, is that a motor transport worker, if he is entitled to more favourable benefits in respect of any matter under any award or agreement of service or otherwise, he shall continue to derive that benefit and the said benefit shall not be denied to him on the ground that he receives benefits in respect of other matters under this Act. So also it would be open to a motor transport worker to enter into an agreement with his employer claiming more favourable terms, rights or privileges than those to which he is entitled under the Act.
21. In my opinion, therefore, the Central Act, which applies to every motor transport undertaking is enacted to provide for the welfare of the motor transport workers employed in such undertakings. A motor transport undertaking is required to be registered as such under section 3 of the Central Act. The employees of such an undertaking, who may be employed in a factory or in a shop or other commercial establishment, are not motor transport workers within the meaning of the definition given in section 2(h) of the Act, and they would continue to be governed by the provisions of the Factories Act or any other law in force regulating the conditions of service of persons employed in shops or commercial establishments. So far as the present respondent No. 1 is concerned, transport of goods is its sole concern and business and as an employer of fifteen motor transport workers, it would be governed by the provisions of the Central Act. Respectfully agreeing, therefore, with the view of the Full Bench of the Patna High Court. I find that the Motor Transport Workers Act, 1961 by implication repeals the State Act.
22. The proviso to section 37(1) of the Central Act is intended to protect and preserve for the motor transport workers the more favourable advantages and benefits, if any, under any other laws, agreements or awards to which they may be entitled, notwithstanding that they receive benefits in respect of other matters under the Act. As pointed out above, section 38-A of the State Act provides that the provisions of the Workmen's Compensation Act shall mutatis mutandis apply to the employees of establishment to which the Act applies as if they were the workers within the meaning of the Workmen's Compensation Act, 1927. Though no such provision is to be found in the Central Act, the same result, in my view, is achieved by virtue of the proviso to section 37(1). The High Court of Kerala in the aforesaid ruling having found that a motor transport worker in the matter of termination of service was entitled to the beneficial provision of section 18 of Kerala Shops and Commercial Establishments Act (analogous to section 66 of our State's Act) held that by virtue of the proviso to section 37(1), they would still be entitled to that benefit, irrespective of the fact whether the motor transport undertaking was or was not registered under the Local or the State Act. The said decision, therefore, is no authority for a proposition that the motor transport undertaking, though engaged exclusively in carrying passengers or goods or both as defined by section 2(g) of the Central Act, would require a registration under a State or other Local Act, in view of the proviso to section 37 as is sought to be suggested by the learned Counsel for the appellant in this case. The learned Magistrate rightly held that the respondent No. 1, which is principally a motor transport undertaking, did not contravene the provisions of section 7 of the State Act.
23. In the result, the appeal is dismissed.
24. Appeal dismissed