Repealing Act Of 2016 Does Not Remove Section 2A(2) Of Industrial Disputes Act, 1947: Calcutta High Court

The Calcutta High Court recently ruled that the Labour Courts/Tribunals constituted under the Industrial Disputes Act, 1947 have the power to exercise jurisdiction under Section 2A(2) of the Act and that the Repeal and Amendment of the Industrial Disputes (Amendment) Act, 2010 as a whole, by the Repeal and Amendment Act of 2016, neither has the effect of removing the said section from the statute book, nor ousting the jurisdiction of the said courts/tribunals.

A bench of Justice Raja Basu Chowdhury held,

“The Repealing Act, therefore, does not have the effect of removing section 2A(2) from the statute book, so as to ouster jurisdiction of the Labour Courts/Tribunals. The object of the Repealing Act is to remove unnecessary Acts, which have achieved their purpose and to strike out dead matter from the statue book…Lastly, although it has been argued that notwithstanding repeal of sections 2A(2) of the said Act, the workman continues to enjoy the benefit of raising an individual dispute, since the West Bengal amendment protects such individual workmen, in my view the aforesaid state amendment does not have the effect of removing sections 2A(2) of the said Act, from the statute book.”

Background

The writ applications filed by the petitioners in this case, challenged the orders passed by the Tribunals/Labour Courts constituted under the provisions of the Industrial Disputes Act, 1947, whereby the Tribunals/Labour Courts not only allowed the proceedings but also proceeded to hear out matters, by exercising jurisdiction under section 2A(2) of the said Act, notwithstanding the repeal of the Industrial Disputes (Amendment) Act, 2010 as a whole, by the Repeal and Amendment Act of 2016.

The counsel appearing on behalf of the employers argued that following the repeal of the Industrial Disputes (Amendment) Act, 2010, section 2A(2) of the Industrial Disputes Act, 1947 no longer exists in the statute book, and therefore, Tribunals/Labour Courts cannot exercise jurisdiction under that provision.

On the other hand, the counsel representing the employees/workers contended before the court that despite the repeal of the Amendment Act of 2010, the provisions of section 2A(2) of that Act continue to exist in the statute book. They argued that the Labour Courts/Industrial Tribunals acted appropriately in assuming jurisdiction under section 2A(2) of the Industrial Disputes Act, 1947.

The Labour Courts/Tribunals had themselves held in several cases that despite the repeal of the Industrial Disputes (Amendment) Act, 2010, they are competent to exercise jurisdiction under section 2A(2) of the Industrial Disputes Act, 1947. However, in one of the appeals that was clubbed in this case, the First Industrial Tribunal Kolkata, West Bengal had upheld the objection regarding the maintainability of the application filed under section 2A(2) of the said Act, following the notification of the Repealing Act.

The primary question that fell before the bench was “whether consequent upon the Repealing Act, being notified and published in the Gazette of India on 9th May, 2016, and the Amendment Act of 2010, in terms of Section 2 of the Repealing Act, being repealed as a whole, whether the amendments brought about by the Amendment Act of 2010 survives in the principal Act, for the Tribunals/Labour Courts to exercise jurisdiction on the basis of the amended provisions of the principal Act, which were brought about by the Amendment Act of 2010.”

The advocates representing on behalf of the employers had extensively argued that in order to remove the anomaly created, which was brought about by the incorporation of the Amendment Act of 2010, the Repealing Act had been notified.

However, while disagreeing with such contention, Justice Chowdhary said, “Although an attempt has been made to, inter alia, contend that the object of conciliation has been removed by the Amendment Act of 2010, I am afraid such is not the case.”

“A perusal of Section 2A (2) of the said Act, would reveal that in order to invoke the provisions of the said section, an application to the Conciliation Officer is mandatory and it is only on the expiry of 45 days from the date of making such an application that a proceeding can be initiated before learned Labour Court,” said the court.

Continuing, it said: “The said section read with the obligation of the conciliation Officer as provided in the Act, and rules framed thereunder, to initiate the conciliation proceedings, in my view, does not create any incongruity in the Scheme of the said Act. The object of the Repealing Act also does not in any way provide that the Amendment Act of 2010 has been removed by reasons of its incongruity.”

Justice Chowdhary observed that the distinction made by the legislature in repealing an Act, as a whole, and in repealing a particular section of a certain act, clearly highlights the intention of the legislature.

The court further observed that a perusal of the Amendment Act of 2010 and Section 2 and 3 of the Amendment Act of 2013, would in no uncertain terms clarify that by the aforesaid amendments only section 2 and 3 have been inserted in the principal Act.

"While in the case of the Amendment Act 2010, all the sections seek to insert the respective amendments in the principal Act, in the case of Amendment Act, 2013, only Section 2 and 3 seeks to amend the provision of the Representation of Peoples Act, 1951. Insofar as sections 1 and 4 of the Amendment Act 2013, are concerned the same do not seek to insert and or in way amend any of the existing provisions of the principal Act," Justice Chowdhary noted.

The court added: “As noted above the Amendment Act of 2010, has already been applied and incorporated to the principal Act. The object of this repealing Act is not to alter the existing law but to remove certain amendments which become unnecessary.”

Case Title: Krishnadas Bhattacharjee -Versus- The State of West Bengal & Ors. WPA 8913 of 2021