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Lily Thomas Vs. State of Tamil Nadu - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberW.A. No. 225 of 1985
Judge
Reported inAIR1986Mad290
ActsConstitution of India - Articles 41, 186, 195, 245, 246, 229(2), 322 and 366(17); Tamil Nadu Payment of Salaries Act, 1951 - Sections 12B; Tamil Nadu Payment of Salaries (Amendment) Act, 1975
AppellantLily Thomas
RespondentState of Tamil Nadu
Appellant AdvocateParty in Person
Respondent AdvocateAdv. General
Cases ReferredWasif Ali v. Karnani Industrial Bank
Excerpt:
.....legislature in respect of pension - entry 42 in list ii of seventh schedule specifically enables state legislature to legislate in respect of pension - provisions in section 12b falls squarely within scope of entry 42 in list ii and state legislature competent to enact section 12b - no provision of section 12b suffer from any constitutional invalidity - appeal dismissed. - - 1. the appellant who is a practising advocate in the supreme court of india as well as in this court, had challenged in w. 4. the appellant who appeared in person before the learned single judge as well as before us has very vehemently challenged the legislative competence of the state legislature to enact the provisions in s. the learned advocate general has also pointed out that unless there is an express..........person was or is in receipt of pension for having been a member of the parliament or any other state legislature, or honorarium either from any state or the central government or from any company or statutory body owned or controlled by any state or the central government and if the amount of such pension or honorarium is equal to or in excess of the pension to which he is entitled under sub-sec. (1), cl. (b) of the proviso provides that where the amount of such pension or honorarium is less than the pension to which he is entitled under sub-sec. (1) such person shall be entitled to receive only the difference as pension under that sub-section. there are three explanations after sub-sec. (3). the first explanation defines the expression 'one term' as meaning a period of not less than.....
Judgment:

Chandurkar, C.J.

1. The appellant who is a practising advocate in the Supreme Court of India as well as in this Court, had challenged in W.P. 105 of 1984, the constitutional validity of the provisions of S. 12B of the Tamil Nadu Payment of Salaries Act 1951 (Tamil Nadu Act XX of 195 1) (hereinafter referred to as the Act). The substantive part of S. 12-B of the Act was first introduced by the Tamil Nadu Payment of Salaries (Second Amendment) Act 1975 and which has been amended from time to time, reads today as follows: -

Section 12-B. Pension : There shall be paid a pension of two hundred and fifty rupees per mensem to every person who after the 15th day of Aug. 1947, had been or is a Member of the legislative Assembly or of the Legislative Council or of both, for one term.'

There is an explanation to this section. Cls. (a) and (b) of the said explanation give the meaning of the words 'Member of the Legislative Assembly' and they take into account the fact that some parts of the former State of Travancore-Cochin became part of the State of Tamil Nadu after the lst Nov. 1956, and some parts of the State of Andhra Pradesh also became part of the State of Tamil Nadu after 1st April 1960. A proviso in the section provides that if a person has served as a Member of the Legislative Assembly or as a Member of the Legislative Council or as both for a period exceeding five years, he is to be paid an additional pension of Rs. 50 per month for every further period of one year as such Member. It further provides that in no case the pension payable to the member shall exceed Rs. 500 per month. The second proviso excludes certain persons from the category of persons who are entitled to pension under S. 12-13(l).

2. Sub-secs. (2) and (2-A) are not relevant for our purpose. Sub-sec. (3) enables the State Government to make rules providing for the conditions and restrictions subject to which such pension may be granted under the Act. The proviso to sub-sec. (3) provides that pension shall not be paid to any person for the period during which such person was or is in receipt of any salary or any emoluments other than travelling allowance either from any State or the Central Government or from any company or statutory body owned or controlled by any State or the Central Government, and if any such income was or is received, the payment of pension shall be suspended for that period. There is a further proviso which also provides that no such pension shall be paid to any such person for the period during which such person was or is in receipt of pension for having been a Member of the Parliament or any other State Legislature, or Honorarium either from any State or the Central Government or from any company or statutory body owned or controlled by any State or the Central Government and if the amount of such pension or honorarium is equal to or in excess of the pension to which he is entitled under sub-sec. (1), Cl. (b) of the proviso provides that where the amount of such pension or honorarium is less than the pension to which he is entitled under sub-sec. (1) such person shall be entitled to receive only the difference as pension under that sub-section. There are three explanations after sub-sec. (3). The first explanation defines the expression 'one term' as meaning a period of not less than one year and not more than five years of membership in the Legislative Assembly or in the Legislative Council or in both whether continuous or not. Explanation 11 provides that for the purpose of additional pension referred to in the proviso to sub-sec. (1), the period of membership in the Legislative Assembly or in the Legislative Council or in both need not be continuous. Expln. III gives the meaning of the word 'salary' and includes salary received as a Member of Parliament or any other State Legislature, as a Minister or Deputy Minister of the Government of India or of any other State, as Chairman or Deputy Chairman of the Council of States or the Legislative Council of any other State and as the Speaker or Deputy Speaker of the House of the People or of the Legislative Assembly of any other State.

3. We are really not concerned with the several provisions made in S. 12-B of the Act, except the substantive provision contained in S. 12-B which, as already pointed out, prescribes for payment of pension of Rs. 250 per mensem to every person who after the 15th Aug. 1947 had been or is a Member of the Legislative Assembly or of the Legislative Council or of both for one term.

4. The appellant who appeared in person before the learned single Judge as well as before us has very vehemently challenged the legislative competence of the State Legislature to enact the provisions in S. 12-B of the Act. Emphasis has been laid by the appellant on the provision in Art. 195 of the Constitution, which reads as 4ollows -

'Art. 195 : Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time be determined by the Legislature of the State by law and, until provision in that respect is so made, salaries and allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Legislative Assembly of the corresponding Province.'

It is vehemently urged by the appellant that Art. 195 of the Constitution refers merely to salaries and allowances as may from time to time be determined by the Legislature of the State by law and therefore according to the appellant, the only legislation which the State Legislature is competent to enact is a legislation relating to salaries and allowances which are payable to the Members of the State Legislative Assembly and the Legislative Council of the State. It is argued that pension is not one of the payments which are made permissible in the case of the Members of the Legislative Assembly or Legislative Council, and having regard to the fact that wherever the Constitution makers contemplated payment of pension, they expressly provided for such payment of pension, and pension not having been included in Art. 195 of the Constitution, the non-mention of pension in Art. 195 must be considered as prohibition against the legislature enacting any law enabling payment to the Members of the Legislature by way of pension.

5. Our attention has been invited to certain Articles in the Constitution where express mention has been made with regard to pension. Art. 125(2) which deals with salaries of the Judges of the Supreme Court, has a proviso which reads as follows -

'Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.'

Article 148 which deals with the Comptrollers and Auditor General of India by Cl. (3) provides that the salary and other conditions of service of the Comptroller and Auditor General shall be such as may be determined by Parliament by law and until they are so determined, shall be as specified in the second Schedule. There is a proviso which reads that neither the salary of a Comptroller and Auditor General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment. Reference was also made to Art. 148(6) which reads that 'the administrative expenses of the office of Comptroller and Auditor General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India.'

6. A reference was made to Art. 322 which made provision for expenses of the Union or a State Public Service Commission, including any salaries, allowances, and pension payable to or in respect of the members or staff of the Commission and that such expenses shall be charged on the Consolidated Fund of India, or, as the case maybe, the Consolidated Fund of the State.

7. Reference was also made to Art. 229(2) which provides that subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judges or officers of the Court authorised by the Chief Justice to make rules for the purpose. The proviso says that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pension, require the approval of the Governor of the State. Our attention has also been invited to other Articles in the Constitution such as Arts. 59(3) and 65(3) which provide for the emoluments, allowances and privileges of the President and the Vice-President of India, as also Art. 75(6) which refers to the salaries and allowances of Ministers which can be determined by Parliament from time to time and until the Parliament so determines, they shall be as specified in the Second Schedule.

8. The argument of the appellant is that wherever the Constitution contemplated a specific power of the Legislature in respect of pension, reference to pension has specifically been made and, inasmuch as Art. 195 does not make any reference to pension to the Members of the State Legislature and merely referred to their salaries and allowances, there is no power for the State Legislature to enact a law providing for pension to the Members of the Legislature, in the face of Art. 195 of the Constitution which must be read as prohibiting the enactment of a legislation permitting the State Government to pay pension to the Members of the Legislature. Reliance was also placed on Art. 245 of the Constitution and specifically the opening words of Art. 245 which make the legislative power of Parliament and the legislative power of a State' subject to the provisions of this Constitution'. It is argued that Art. 195 is a provision in the Constitution and if Art. 195 is to be read as prohibiting the State Legislature from enacting any law authorising payment of pension to the Members 'of the Legislature, then the power to legislate under Art. 245 read with Art. 246 cannot be exercised so as to enact a legislation regarding payment of pension to the Members of the State Legislature.

9. Another limb of the same argument turned on the constitutional validity of S. 12B of the Act. An argument was advanced that public exchequer cannot be burdened with any charge which is not permissible under the Constitution and therefore if a legislation of the kind which is impugned is prohibited, such payment of pension cannot validly be charged on the public exchequer.

10. A reference was made to the decision of the Supreme Court in R. S. Nayak v. A. R. Antulay, : 1984CriLJ613 in which the Supreme Court has observed in para 59 that a Member of the Legislative Assembly performs public duties cast on him by the Constitution and his electorate, and he thus discharges constitutional functions for which he is remunerated by fees under the Constitution and not by the executive.

11. The learned Advocate-General has contended that Art. 195 of the Constitution when it refers to Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time be determined by the Legislature of the State by Law, it refers to sitting Members of the Legislative Assembly and the Legislative Council of a State, and, according to him, the scope of Art. 195 does not take within it those who have ceased to be Members of the Legislative Assembly or Legislative Council. Therefore, according to the learned Advocate General, since Art. 195 cannot be read as referring to persons who have ceased to be Members of the Legislature or as he puts it 'past members of the Legislature', for determining the constitutional validity of the impugned provision, the provision in Art. 195 has no relevance. Even otherwise, according to the learned Advocate General, before it is held that there is any prohibition or restriction on the powers of the State Legislature, such prohibition or restriction must be clear, and the absence of a reference to pension in Art. 195 cannot be read as a prohibition upon the legislature in respect of pension, because, according to the learned Advocate General, Entry 42 in List II of the Seventh Schedule to the Constitution specifically enables the State Legislature to legislate in respect of pension, Entry 42 in List 11 reads as follows -

'State Pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State.'

The argument of the learned Advocate General is that the impugned provision in S. 12-B of the Act falls squarely within the scope of Entry 42 in List 11, and the State Legislature was therefore competent to enact S. 12-B of the Act. The learned Advocate General has also made reference to the definitions of the word 'pension' as found in Art. 366(17) of the Constitution. Art. 366(17) defines 'pension' as follows -

'Art. 366(17). 'Pension' means a pension, whether contributory or not, of any kind wahtsoever payable to or in respect of any person, and includes retired pay so payable, a gratuity so payable and any sum or sums so payable by way of the return, with or without interest thereon or any other addition thereto, of subscriptions to a provident fund'.

The argument was that in the exercise of its legislative power in respect of State Pensions, it is competent for the State to make provision for payment of pension of any kind whatsoever payable to or in respect of any person. The learned Advocate General has also pointed out that unless there is an express prohibition like the one that is to be found in Art. 35, no artificial restriction can be put on the Legislative power of a State Legislature. Art. 35 specifically provides as follows -

'Notwithstanding anything in this Constitution (a) Parliament shall have and the Legislature of a State shall not have, power to make laws -

(1) with respect to any of the matters which under CL (3) of Art. 16, Cl. (3) of Art. 32, Art. 33 and Art. 34 may be provided for by law made by Parliament; and

(2) for prescribing punishment for those acts which are declared to be offences under this Part;

and Parliament shall, as soon as may be, after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-cl. (ii)'.

The learned Advocate General contends that not only can Art. 195 be not read as imposing any express prohibition to legislate in respect of pension payable to ex-Members of the Legislature, it cannot even be read as imposing any implied prohibition against such an enactment.

12. Under Art. 245 of the Constitution, a State Legislature is empowered to make laws for the whole or any part of the State subject, of course, to the provisions of the Constitution. Art. 246(3) provides that subject to Cls. (1) and (2) of Art. 246, the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 11 in the Seventh Schedule (in the Constitution, referred to hereafter as the State List) Entry 42 in the State List reads as follows -

'State pensions, that is to say pensions payable by the State or out of the Consolidated Fund of the State'.

There is no doubt that the Legislative power of a State Legislature in respect of matters enumerated in the State List is subject to, as specifically provided in Art. 245(l) of the Constitution. The powers vested in the State Legislature under the Constitution to legislate in respect of matters enumerated in the State List are plenary in character, except for the limitations which are to be found in the other parts of the Constitution like Part III which deals with fundamental rights. The legislative power of the State Legislature cannot be exercised so as to enact a legislation which is violative of the fundamental rights guaranteed by Part III of the Constitution. Similarly, the legislation cannot operate beyond the boundaries of the State and it must be for the purposes of the State, There are other provisions which impose restrictions upon the powers of the legislature like Arts. 286, 301 and 303. When a legislative enactment is challenged the court is really concerned with the legislative competence of the State Legislature. If it is shown that the subject of legislation falls within the State List and the legislation does not violate fundamental rights or violate any of the provisions of law which is restrictive of the legislative power, then the challenge on the ground of the legislative competence has to be negatived. The Court is not really concerned with the wisdom or the motive of the Legislature. The argument advanced before us that the Legislation impugned is a self-serving, enacted by the legislature for their own benefit will have to be rejected once we find that there is legislative competence for the State Legislature.

13. In Sardar Sarup Singh v. State of Punjab, AIR 1959 SC 860, the Supreme Court observed as follows -

'........ and whatever justification some people may feel in their criticisms of the political wisdom of a particular legislative or executive action, this court cannot be called upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make.' (Para 5)

In R. S. Joshi v. Ajit Mills, : [1978]1SCR338 , the Supreme Court quoting two decisions of the United States Supreme Court observed as follows --

'When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U. S. Supreme Court in Munn v. Illinois, (1876) 94 US 113 (quoted in Labour Board v. Jones and Laughlin 1936-301 US 133-34, Corwin, Constitution of the U.S.A. viz., that courts do not substitute, their social and economic beliefs for the judgment of legislative bodies .......'

Even assuming for a moment that the appellant feels sour at the legislature granting pension to ex-Members of the Legislature, in so far as the question of constitutional validity is concerned, we must go strictly by the well established tests by which legislative competence of a State Legislature is to be judged to see if the impugned provision is within the competence of the State Legislation. The mere fact that the members of the legislature enacted this legislation either for their benefit when they ceased to be members or for the benefit of their predecessors who were members earlier, would not be a consideration relevant to the question of constitutional validity.

14. So far as the impugned provision is concerned, there cannot be any doubt that it will fall squarely within Entry 42 of the State List, subject of course to the contention that notwithstanding Entry 42, in so far as Members of the Legislature are concerned, there is an express bar in the matter of enacting a provision for payment of pension to the Members of the Legislative Assembly. In so far as the entries in the Legislative List are concerned, it is now settled law that the relevant words used in the entries in the Seventh Schedule must receive the widest interpretation. The classic observations of Gwyer C.J. in United Provinces v. Mt. Atiqa Begum , namely that 'none of the items in the Lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to comprehend in it' have been approved by the Supreme Court time and again - Vide Benarsi Dass v. Wealth tax Officer, : [1965]56ITR224(SC) .

15. In Calcutta Gas Co. v. State of West Bengal, : AIR1962SC1044 , the Supreme Court in para 8 observed as follows -

'The power to legislate is given to the appropriate Legislature by Art. 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate legislatures can operate. It is also well-settled that widest amplitude should be given to the language of the entries .........'

In Waverly Jute Mills v. Raymon and Co., : [1963]3SCR209 the Supreme Court observed as follows -

'The rule of construction is undoubtedly well established that the entries in the Lists should be construed broadly and not in a narrow or pedantic sense.'

16. Entry 42 in List 11 refers to 'State pensions that is to say, pensions payable by the State or out of the Consolidated Fund of the State'. We have reproduced earlier the definition of the word 'pension' in Art. 366(17) where it is stated as 'pension of any kind whatsoever'. In view of this definition, the word 'pension' has to be construed in its widest sense in Entry 42, List 11. Normally, the concept of pension includes payment for past services. In the case of civil employees of the Government, pension is in the nature of compensation for services rendered in the past - vide D. S. Nakara v. Union of India, : (1983)ILLJ104SC . In the said decision, the Supreme Court has observed as follows -

'Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Dodge v. Board of Education, (1937) 302 US 74: 82 Law Ed 57, a pension is closely akin to wages in that it consists of payment provided by an employer, paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want'.

This, however, is only one aspect of the concept of pension. The word 'pension' is of a much wider amplitude. In Shorter Oxford English Dictionary Vol. 11, the primary meaning of the word 'pension' is' a payment, a tribute, tax, charge, imposition, a contribution, a price paid or received, an expenditure'. The meaning of the word 'pension' came up for consideration before the Privy Council in Wasif Ali v. Karnani Industrial Bank, in which the Privy Council, referring to the general concept of the word 'pension' observed that the word 'pension' implies periodical payments of money by Government to the pensioner. Normally, therefore, the concept of pension, understood in its widest sense, would mean any periodical payment which is paid by the Government. It is this wide meaning which has to be given to the words in Entry 42, because, within the Entry itself, there is no restriction as to its meaning, especially when it is read in the light of the definition in Art. 366(17) which specifically refers to pension of any kind whatsoever payable to any person. Pension, therefore, may be of various kinds, and the meaning of, the word cannot be restricted only to payment of compensation for public services by an employer to the employee and it will include any payment which is made by the State to the recipient of the payment.

17. In the light of the scope of Entry 42 in List 11, we have no doubt that the impugned provision will squarely fall within the legislative competence of the State Legislature. When we come to Art. 195, we must confess our inability to read even any implied restriction of the legislative power of the State Legislature in respect of Entry 42. It has to be pointed out that Art. 195 is a provision which provides for payment of salaries and allowances to the Members of the Legislative Assembly and Council. This provision obviously refers to persons who can be described as Members of the Legislative Assembly or Council. This provision obviously makes a reference to sitting Members of the Legislature and this can operate only in respect of those who are at the material time Members of the Legislature. The impugned provision does not deal with payment of pension to the sitting Members of the Legislature; but it operates only for the benefit of those who could be described as ex-Members of the Legislature or past Members of the Legislature. If the subject matter of Art. 195 is only salary and allowances payable to the existing members of the State Legislature, then it cannot be a provision which can operate in respect of persons who have ceased to be the Members of the Legislature. We are therefore, unable to find anything in Art, 195 which can be read as a restriction on the power of the Legislature to legislate in respect of Entry 42 in the State List.

18. We may also point out that unless there are clear words which can be read as a restriction on the Legislative power of the State, it would not be possible to strike down any legislation on the ground of legislative competence. Apart from the fact that the fields covered by Art. 195 and Entry 42 are entirely different, we are not able to read Art. 195 as in any way restricting the scope of the Legislative power in respect of Entry 42.

19. Once we take 1he view that the enactment of the provision in S. 12-B is within the Legislative competence in view of Entry 42 in the State List, the argument that there is no specific Article in the Constitution enabling pension to be granted to the erstwhile legislators like Arts. 125(2), 148, 322, 229(2) and, therefore, there was no power in the Legislature to enact S. 12B must also be rejected. So also, on our finding that the impugned provision does not suffer from legislative incompetence, the question of the public exchequer being burdened unauthorisedly does not arise at all.

20. It was sought to be argued by the appellant that the scope of Entry 42 must be restricted only to giving effect to the directive principles in Art. 41 of the Constitution of India. Art. 41 reads as follows -

'Art. 41: The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.'

The argument appears to be that when Art. 41 requires the State to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other words, of undeserved want, it is not permissible to make a law relating to payment of pension to Members of Legislature. While it may be possible for the State Legislature to make a law relating to old age pension, sickness pension or disablement pension, Art. 41 cannot be read as enveloping the entire scope of the legislative power under Entry 42 . We have pointed out that the definition of the word 'pension' in Art. 366(17) contemplates pension of any kind whatsoever, and once the scope of entry 42 is so wide as to include pension of any kind whatsoever, we cannot restrict those wide words by importing any limitations in terms of Art. 41 of the Constitution. After giving our anxious consideration to the arguments of the appellant, we are not satisfied that the provisions in S. 12-B of the Tamil Nadu Payment of Salaries Act 1951 suffer from any constitutional invalidity. Accordingly, in our view, the writ petition was rightly dismissed by the learned single Judge. The writ appeal is also accordingly dismissed. However, there will be no order as to costs in this appeal.

21. Appeal dismissed.


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