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Nagar Nigham Harijan Karmachari Sangh and anr. Vs. Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1975)ILLJ6MP; 1974MPLJ588
AppellantNagar Nigham Harijan Karmachari Sangh and anr.
RespondentMunicipal Corporation
Cases ReferredBagalkot City Municipality v. Bagalkot Cement Co.
Excerpt:
.....by the learned counsel for the petitioners we will be clearly frustrating the intention of the byelaw makers in repealing the 1966 byelaws and in making the new byelaws. we are clearly of opinion that any subsequent amendment made by the state government to the fundamental rules and other rules referred to in byelaw 3 gets automatically incorporated in the byelaw and it begins to apply to the employees of the corporation also......2 is a female harijan employee of the corporation. by a notification dated 22nd december, i967 the state government confirmed the byelaws made by the corporation relating to conditions of service of municipal employees. these byelaws are known as ' the jabalpur municipal corporation servants byelaws, 1967.' for brevity sake these byelaws shall hereinafter be referred to as the 1967 byelaws. the word 'servant' was defined by byelaw 2(f) to mean 'a servant of the corporation excluding sweepers employed therein.' the main byelaw is byelaw 3 which reads:application of fundamental rules, civil service regulation and general book circular. subject to the provisions of madhya pradesh municipal corporation act, 1956 and the rules are byelaws made thereunder, the fundamental rules, the general.....
Judgment:
ORDER

G.P. Singh, J.

1. By this petition under Article 226 of the Constitution the petitioners challenge the vires of the Jabalpur Municipal Corporation servant Byelaws, 1967, and the amendment made in these byelaws in 1971:

2. The petitioner No. 1 is a registered trade union of the Harijan employees of the Municipal Corporation, Jabalpur. The petitioner No. 2 is a female Harijan employee of the Corporation. By a notification dated 22nd December, i967 the State Government confirmed the byelaws made by the Corporation relating to conditions of service of municipal employees. These byelaws are known as ' The Jabalpur Municipal Corporation Servants Byelaws, 1967.' For brevity sake these Byelaws shall hereinafter be referred to as the 1967 Byelaws. The word 'servant' was defined by Byelaw 2(f) to mean 'a servant of the Corporation excluding sweepers employed therein.' The main byelaw is Byelaw 3 which reads:

Application of Fundamental Rules, Civil Service Regulation and General Book Circular. Subject to the provisions of Madhya Pradesh Municipal Corporation Act, 1956 and the rules are byelaws made thereunder, the Fundamental Rules, the General Book Circulars and the Civil Service Regulations made from time to time shall apply mutatis mutandis to the officers and servants of the Corporation as they apply to the Government servants of the State other than the members of Indian Administrative Service.

By another notification published on 29th October, 1971 an amendment was introduced in the aforesaid byelaws/The definitions of the word ' servant ' was substituted by a new definition which reads as under:

Servant means a servant of the Corporation including sweepers employed therein.

As a result of the aforesaid byelaws the Fundamental Rules, the General Book Circulars and the Civil Service Regulations made from time to time and applicable to the Government servants of the State were made applicable to the employees of the Corporation including sweepers.

3. The grant of maternity leave to female Government servants is regulated by Supplementary Rule 1 made under Rule 101(a) of the Fundamental Rules, which reads:

S.R. 1 ' Extent of leave: A competent authority may grant to a female Government servant, who holds a temporary or permanent post maternity leave on full pay for a period which may extend up to the end of three months from the date of its commencement or to the end of six weeks from the date of confinement, whichever be earlier. In the case of 'abortion' or 'miscarriage' maternity leave may also be grin ed to a female Government servant; but the extent of the leave granted should be limited to the period recommended by the appropriate medical authority referred to in Supplementary Rule 2 below, subject to a maximum of six weeks from the date of occurrence of the event.

By a notification dated 25th November 1968 this Supplementary Rule was amended by addition of a proviso in it which reads:

Provided that no leave under this rule shall be granted to the female Government servant who has three or more surviving children.

The effect of this proviso is to deprive a female employee of maternity leave in case she has three or more than three surviving children.

4. By an order passed on 11th October, 1972 the Corporation decided to enforce the above proviso in case of Harijan female employees of the Corporation. This decision of the Corporation has led to the present petition under Article 226 of the Constitution for quashing the byelaws and the order of the Corporation dated 11th October, 1972,

5. The first contention raised by the learned Counsel for the petitioners is that on a proper construction Byelaw 3 of the 1967, Byelaws applies to the employees of the Corporation such Fundamental Rules, General Book Circulars, etc., which were in existence on the date when these Byelaws came into force. The 1967 Byelaws came into force sometime in 1967 when they were published in the Gazette. It is argued that the proviso which was inserted in supplementary Rule 1 by the Government on 25th November, 1968 denying maternity leave to female employees having three or more than three children could not be applied to the employees of the Corporation as it was not in force on the date when the byelaws came into force.

6. The normal rule, no doubt, is that when a later enactment incorporates provisions of an earlier enactment, amendments introduced in the earlier enactment subsequent to incorporation do not get automatically incorporated in the incorporating enactment unless the law making authority has expressly or by strong implication shown that the intention is to incorporate even subsequent amendments. Byelaw 3 incorporates the Fundamental Rules, the General Book Circulars and the Civil Service Regulations made from time to time and makes them applicable to employees of the Corporation. The words ' made from time to time' clearly show that the intention in making the byelaw was not only to incorporate the Fundamental Rules, etc., that were in force at the time of making of the byelaws but also subsequent amendments made in these rules. Unless that meaning is given to these words, they will serve no useful purpose and will become redundant or otiose. For if the intention was to incorporate only such Fundamental Rules, etc., which were in existence on the date of the coming into force of the byelaws, that intention could have expressed without use of these words in Byelaw 3. There is a history behind introduction of these words in Byelaw 3. The 1967 Byelaws repealed the 1966 Byelaws that were previously in force. In the 1966 Byelaws the Byelaws corresponding to Byelaw 3 of the 1967 Byelaws was identically worded except that it did not contain the words 'made from time to time'. In the absence of those words it was held that any subsequent amendment in the Fundamental Rules, etc., made by the Government did not automatically become applicable to the Corporation employees as it did not get incorporated in the byelaw Chandra Shekhar v. L.P. Tiwari (1968) M.P.L.J. 217. It was to obviate this result that the Corporation made the new byelaws in 1967 and the words 'made from time' were introduced in Byelaw 3 so as to make even subsequent amendments in the Fundamental Rules, etc., automatically applicable to the employees of the Corporation without the Corporation making any fresh byelaw to incorporate the amendment. If we were to construe Byelaw 3 in the manner contended by the learned Counsel for the petitioners we will be clearly frustrating the intention of the byelaw makers in repealing the 1966 Byelaws and in making the new byelaws. We are clearly of opinion that any subsequent amendment made by the State Government to the Fundamental Rules and other rules referred to in Byelaw 3 gets automatically incorporated in the byelaw and it begins to apply to the employees of the Corporation also. For this reason, the proviso added to the Supplementary Rule 1 by the Government on 25th November, 1968 was applicable also to the employees of the Corporation.

7. The next contention of the learned Counsel for the petitioners is that Byelaw 3 is invalid in so far as it automatically makes applicable to the Corporation employees rules made by the Government for Government servant subsequent to the making of the byelaw. It is argued that by making the said byelaw the Corporation has sub-delegated its functions to the State Government. In this connection attention is drawn to Sections 427(1-C), 429, 430 and 432 of the Madhya Pradesh Municipal Corporation Act, 1961 and it is submitted that the safeguards provided by the Act for making a byelaw become redundant when a byelaw is made by which rules made by the State Government in future are also to apply to the Corporation employees.

8. Under Section 427 the Corporation has been empowered to make byelaws for carrying out the provisions of the Act. Clauses (I-C), (b), (e) and (f)of this section authorised the making of byelaws to regulate 'the conditions of service of Corporation officers or servants', 'the grant of leave of Corporation officers or servants' and ''leave salaries to Corporation officers and servants'. The procedure for making the byelaws is given in Section 429. The proposed byelaws are to be made available for inspection to members of the public and a notice of the intention to take the proposed byelaws into consideration has to be given at least six weeks before the date on which the Corporation finally considers such byelaws. All objections and suggestions which are made in writing by any person within one month of the date of notice are to be considered by the Corporation. The byelaws become valid when they are confirmed by the Government under Section 430. The byelaws are then published in the Gazette and 'thereupon have effect as if enacted in the Act,' (Section 431). The Government can also by following the procedure in Section 432 modify or repeal any byelaw.

9. It is no doubt true that when power to make delegated legislation is conferred on an authority under an Act that power has to be exercised by that authority and cannot be sub-delegated; Mathura Prasad Yadav v. The Inspector General, Railway Protection Force and Ors. M. P. No. 623 of 1972, decided on 4th December, 1973. The question, however, is whether in making the impugned byelaw the Corporation has sub-delegated its function to some other authority. It cannot be disputed that it is open to the Corporation to adopt the rules and regulations made by the State Government for its employees as byelaws regulating the conditions of service of the Corporation employees after following the procedure under Sections 429 to 431.That is done when the Corporation decides upon a policy of uniformity that the service conditions of the employees of the Corporation should be the same as those of the Government employees. It was with this object that the 1966 byelaws were made by the Corporation. But the said byelaws only partially attained the object as they provided for static uniformity ; the subsequent amendments in the rules and regulations applicable to the Government employees made by the State Government did not get incorporated in the byelaws so as to be applicable to the Corporation employees. The Corporation, therefore, decided to make the new byelaws so as to bring in not merely static uniformity but complete current uniformity in the service conditions of the employees of the Corporation and the service conditions of the State employees. This policy of bringing about complete current uniformity was achieved by insertion of the words 'made from the time to time ' in Bylaw 3 of the 1967 Byelaws. It is not disputed that the 1967 Byelaws were made after following the procedure contained in Sections 429 to 431 of the Act. Thus the persons affected were given full opportunity to object to the byelaws in the new shape and their objections must have been considered before passing the byelaw. The question is whether this amounts to sub-delegation of the legislative function of making byelaws entrusted to theCorporation by the Legislature under the Corporation Act. The legislative function consists in laying down the legislative policy and of formally enacting it into a binding rule of conduct. The Corporation in making the 1967 Byelaws decided upon the policy of the complete current uniformity between the service conditions of the Corporation employees and those of (the Government employees and enacted that policy into a binding rule of conduct. The only manner in which this important decision of policy taken by the Corporation could be given effect to was by making the byelaws in the shape in which they were made in 1967. The Corporation has not sub-delegated any of its functions; it has itself determined the policy and made the byelaws to give effect to that policy in accordance with the procedure laid down in the Act. Properly understood the byelaws do not contain any sub-delegation of legislative function of the Corporation to the State Government.

10. In United States v. Sharpnack [355] U.S. 286, the question before the Supreme Court of United States was whether a law made by Congress which automatically made applicable to a federal enclave current criminal laws of the State in which the enclave was situated was constitutionally valid, or whether the: Congress by making the said law had delegated its legislative function and the law was invalid. The Court by majority overruled the objection to the validity of the law and held that there was no element of delegation in it as the Act passed by Congress brought about complete current uniformity between the criminal laws of the enclave and the criminal laws of the State where the enclave was situated. As the basic legislative decision of maintaining complete uniformity was taken by Congress and as the law was also made by Congress to give effect to this legislative decision, there was no element of delegation and the law was valid. In our opinion, the same principle applies to the instant case. As already stated, the Corporation took the basic decision of bringing about complete current uniformity between the service conditions of the Corporation employees and the service conditions of State employees and made the byelaws to give effect to that policy. The 1967 byelaws, therefore, do not suffer from the vice of sub-delegation and as the procedure mentioned in Sections 429 to 431 has been followed in making them, they are perfectly valid.

11. Different considerations may prevail when the authority on whom power to make a law is conferred delegates that function to another authority for adopting future laws made by some other authority. Cases of that type are illustrated by the decisions of the Supreme Court In re Article 143, Constitution of India, etc. A.I.R. 1951 S.C. 332. and Shama Rao v. Union Territory, Pondicherry : [1967]2SCR650 . The former case considered Section 2 of the Union Territories Laws Act, 1950 which conferred power on the Central Government to extend to any union territory any enactment in force in a State. The Central Government under this section can extend to a union territory even a law made by a State subsequent to the coming into force of the Union Territories Laws Act. The Supreme Court upheld this provision. But Shama Rao's case shows that a law made by a legislative delegating power to the executive to apply future laws made by another Legislature will not be normally upheld. That is, however, not the position in the instant case. The power to make the byelaws is conferred on the Corporation. The Corporation itself has decided that the rules and regulations made by the State Government in future for its employees should also apply to the Corporation employees to bring about complete uniformity and the Corporation has itself made the impugned byelaw to give effect to that decision. The Corporation has not delegated its functions to any outside authority to extend to the Corporation employees the rules and regulations that may be made in future by the State Government for its employees. The Corporation itself has done it by making the byelaw in a comprehensive way.

12. Learned counsel for the petitioners also referred to us the case of Bagalkot City Municipality v. Bagalkot Cement Co. : AIR1963SC771 . In this case a byelaw made by the municipality provided that octopi limits of the municipal district shall be the same as the municipal district. Some new area was included in the municipal district by a subsequent notification and the question was whether the bye law automatically extend to this new area. It was held that the byelaw did not automatically extend to the new area brought within the municipal district. In our opinion, this case has no application on the question of sub-delegation arising before us.

13. As a result of the above discussion, our conclusion is that the 1967 Byelaws as amended in 1971, are valid. The Corporation is, therefore, entitled to enforce the proviso to S.R. 1 to its Harijan employees.

14. The petition fails and is dismissed. There shall, however, be no order as to costs. The amount of the security deposit shall be refunded to the petitioners.


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