IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.7.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE RAJA ELANGO Writ Appeal No.1702 of 2000 & C.M.P.No.14706 of 2000 The Management of Sterling Spinners Limited, P.Pudupatti Padiyur P.O., Vedasandur Taluk, Dindigul District. .. Appellant vs. 1. The Union of India, Secretary, Ministry of Law and Justice, Legislative Department, New Delhi. 2. Regional Provident Fund Commissioner, Madurai Region, Madurai. .. Respondents Writ Appeal against the order dated 18.8.2000 passed by the learned single Judge in Writ Petition No.3304 of 1998 on the file of this Court. For appellant : Mr.Dwarakanathan For respondents: Mr.D.Srinivasan, SCCG for R-1 Mr.V.Vibishan for R-2 JUDGMENT
(Judgment of the Court was delivered by S.J.MUKHOPADHAYA,J)
Section 16 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, (for short, ‘the Act’) was amended and Clause (d) of Section 16(1) was omitted with effect from 22.9.1997. In view of such omission of Clause(d) of Section 16(1), the second respondent-Regional Provident Fund Commissioner, Madurai Region, Madurai, by intimation/letter dated 12.2.1998, informed the appellant-Management of Sterling Spinners Limited, that the benefit of infancy protection, which was given to it, cannot be given in view of the aforesaid omission made by the amendment.
2. The appellant-Company (Writ Petitioner) having unsuccessfully challenged the said order/intimation, dated 12.2.1998, has preferred this Writ Appeal against the order dated 18.8.2000 passed by the learned single Judge in Writ Petition No.3304 of 1998.
3. The appellant-Company was incorporated as a Public Limited Company on 20.9.1994 and it was established in an industrially most backward area for manufacture of hosiery cotton.
4. According to the appellant-Company, it started the business of manufacturing activity with effect from 5.7.1996. On the other hand, according to the respondents, the appellant-Company started to commence its business on 10.10.1994. The benefit of exemption (infancy protection) is used to be granted under Section 16(1)(d) of the Act.
5. The appellant-Company applied for exemption (infancy protection) in terms of Section 16(1)(d) of the Act, which was granted in its favour for a period of three years. By the Notification in the Gazette of India, Extraordinary, dated 22.9.1997, the Clause to grant exemption (infancy protection) under Section 16(1)(d) of the Act was omitted by omitting Clause (d) of Section 16(1) of the Act. The second respondent thereafter issued the impugned letter dated 12.2.1998, allotting Code Number to the appellant-Company and asked it to pay its contribution in respect of the employees from 22.9.1997.
6. Before the Writ Court, the appellant-Company took a specific plea that the Ordinance can have no application to the rights already created and granted under Section 16(1)(d) of the Act and accrued to new Units till the period of infancy expires. Therefore, the second respondent is not right in requiring the appellant-Company to cover its employees under the Act on the basis of the Ordinance. It was also pleaded that the Ordinance cannot be given retrospective effect to require the establishment like the appellant-Company and it is still entitled for the benefit of infancy protection (exemption) as was granted under Section 16(1)(d) of the Act.
7. The respondents accepted that the appellant-Company is a covered exempted establishment, but their plea is that in view of the amendment by which, Clause (d) of Section 16(1) of the Act was omitted, it is liable to pay its contribution of the employees with effect from 22.9.1997, though it would have enjoyed the infancy protection (exemption) of three years right from the date of commencement of the manufacturing activity, i.e. 5.7.1996.
8. The learned single Judge, while considering the question as to whether the respondents are justified in passing the impugned letter dated 12.2.1998 during the subsistence of the infancy period of three years, which was granted on 5.7.1996 when the appellant-Company commenced its manufacturing activities, answered the question in favour of the respondents.
9. We have heard the learned counsel appearing for the parties and perused the records.
10. Similar matter fell for consideration before the Supreme Court in the case of “S.L.Srinivasa Jute Twine Mills (P) Ltd. vs. Union of India” reported in 2006 SCC (L & S) 440. The Supreme Court considered the effect of omission of Section 16(1)(d) of the Act, if any, on the rights of infancy protection as existing on that date and accrued prior to that date. In that case, the commencement of commercial production started from 17.11.1995, which was shown to be the date of commencement of infancy protection and it was to continue for a period of three years as per Section 16(1)(d), i.e. upto 16.11.1998, but in view of the Ordinance No.17 of 1997, the benefit was not given with effect from 22.9.1997. Having noticed Section 16 of the Act and the amendment made therein, the Supreme Court noticed the following facts and observed as follows:
“10. Thereafter, Section 16 was again amended by the Employees Provident Funds and Miscellaneous Provisions (Amendment) Act, 1998, omitting clause (d) with explanation in sub-section (1) of Section 16 with effect from 22-9-1997. (The said omission was initially carried out by Ordinance No.17 of 1997 promulgated on 22-9-1997 followed by Ordinance No.25 of 1997 dated 25-12-1997 and Ordinance No.8 of 1998 dated 23-4-1998 followed by Act 10 of 1998.)
11. According to the appellants, the unamended provisions as they stood after the amendment in 1988 under clause (d), apply to their cases and they were entitled to the protection regarding non-application of the Act for a period of 3 years from the date on which such establishment was set up. According to the High Court, as clause (d) was deleted with effect from 22-9-1997, the Act had application to every establishment and no exemption or “infancy period” whatsoever was available from 22-9-1997.
12. The crucial question, therefore, is the effect of the amendment on the existing rights.”
“16. The matter can be looked at from another angle. Section 6 of the General Clauses Act, 1897 (in short “the General Clauses Act”) deals with effect of repeal. The said provision so far relevant reads as follows:
“6.Effect of repeal.Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”
17. In terms of clause (c) of Section 6 as quoted above, unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repealed. The effect of the amendment in the instant case is the same.
18. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. (See Keshavan Madhava Menon v. State of Bombay-1951 SCR 228 : AIR 1951 SC 128 : 1951 Cri LJ 860) But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet, non praeteritis. In the words of Lord Blanesburgh,
“provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment (see Delhi Cloth & General Mills Co. Ltd. v. CIT, AIR p.244AIR 1927 PC 242 : 51 IA 421).
“Every statute, it has been said”, observed Lopes, L.J.,
“which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect.”(See Amireddi Rajagopala Rao v. Amireddi Sitharamamma- ( (1965) 3 SCR 122 : AIR 1965 SC 1970).
As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (See Reid v. Reid ( (1886) 31 Ch D 402 : 54 LT 100 (CA)). In other words, close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union of India v. Raghubir Singh (1989 (2) SCC 754 : AIR 1989 SC 1933). The above position has been highlighted in “Principles of Statutory Interpretation” by Justice G.P. Singh. (10th Edn., 2006 at pp.474 and 475.)”
11. In the light of the aforesaid observations and findings, the Supreme Court held that the appellants of the said case was entitled to the protection as had accrued to them prior to the amendment in 1997 for the period of three years starting from the date the establishment was set up irrespective of repeal of the provision for such infancy protection.
12. The case of the present appellant-Company being squarely covered by the decision of the Supreme Court in the said case, we also hold that the appellant-Company is entitled to the protection as had been accrued to it prior to the amendment of the Act and thus, it is entitled for such benefit of infancy protection (exemption) for a period of three years from 5.7.1996.
13. The impugned letter dated 12.2.1998 issued by the second respondent-Regional Provident Fund Commissioner, Madurai Region, Madurai, and the impugned order dated 18.8.2000 passed by the learned single Judge in Writ Petition No.3304 of 1998, are set aside.
14. The Writ Appeal stands allowed with the aforesaid observations. No costs. C.M.P. is closed.
1. The Union of India,
Secretary, Ministry of Law and Justice,
Legislative Department, New Delhi.
2. Regional Provident Fund Commissioner,