M/S. HATISINGH MFG. CO. LTD. AND ANOTHER versus UNION OF INDIA AND OTHERS.

permanenl enjoyment as Kapal-Giras, it has come to an end.

Darbar Shri Vira Vala Surag Vala In that view of the matt.er the jJClitioner must be Vadia v. held to have failed to make oul any infringement of State"! ~"':rashtra his fundamental right by reason of the notification Kapur J. dated May 213, l 952. The inf1;ingement which the petitioner complains of is depri\ation of his property oy State action and he bases his right on the terms of the grant. If the grant is not an absolute grant in the sense in which the peLiLioner contends, but is grant which Ly its \cry nature contains defeasance clause, then the petitioner cannot found his claim on any violation of his fundamental rig·ht. The petition is therefore dismissed with costs.

Petition dismissed.

M/s. 1-IATISINGH i\IFG. CO. LTD.

AND ANOTHER

1960 Ap6l 14.

UNION OF INDIA AND OTHERS.

(B. P. SINHA, C. ]., JAFER IMAM, A. K. SARKAR, K. N. \VANCHOO and]. C. SHAH, JJ.)

Industrial Undertaking, Closure of-Compensation to workmen -Constitutional validity of enactment-Industrial Disputes Act, 1947 (14 of 1947), as amended by Act 18 of 1957, s. 25FFF(l)-Constitution of India, Arts. 19\l)(g), 14, 20.

The question for determination in these petitions relates to the constitutional validity of s. 25FFF(l) of the Industrial Disputes Act, 1947, inserted by Act 18 of 1957, which provides for payment of compensation to workmen on the closure of an industrial undertaking. The petitioners urged that the impugned section (i) imposed unreasonable restrictions on the freedom to carry on business guaranteed by Art. 19(l)(g), which included the right to close the business, (ii) discriminated between em-ployers who closed their undertakings on or before November 27, 1956, and employers who closed thereafter and thus contravened Art, 14 and (iii) also penalised acts which were not offences when committed contrary to Art. 20( 1) of the Constitution:

Held, that s. ZSFFF(l) of the Industrial Disputes Act, 1947, inserted by Act 18 of 1957, including the proviso and the expla-nation, is not violative of Arts. 19(l)(g), 14, and 20 of the Cons-titution and its constitutional validity is beyond question:

Held, further, that the question whether restriction imposed by law on the exercise of the fundamental right guaranteed by Art. 19( 1 )(g) is reasonable restriction within the meaning of Art. 19(6) of the Constitution is to be judged not. by any theore-tical standards or fixed patterns but in the light of the nature and incidents of the right, the interest of the general public sought to be secured and the reasonableness of the quality and extent of the restriction itself. The clear intention of the legislature in using the words "as if the workmen had been retrenched" in s. ZSFFF(l) of the Act was not to place the closure of an undertaking on the same footing as retrenchment under s. ZSF. While under s. ZSF of the Act no workman can be retrenched until the conditions prescribed therein are fulfilled, s. ZSFFF(l) does not prohibit the closure of an undertaking without payment of compensation or service of notice, or payment of wages in lieu thereof, and lays down no conditions precedent to closure. But termination of service due to closure of an industrial under<aking stands on the same footing as termination of service on retrenchment and it is in the interest of the general public that the unemployed workmen should be afforded some protection to tide over the period of unemployment. Since the impugned provision, with that object in view, seeks to achieve social justice, it is not material to probe into the motives of the employer or the bona fides of the closure. Indian Hume Pipe Co., Ltd. v. Their Workmen, [1960] 2 S.C.R. 32, referred to.Since wages in lieu of notice are normally inadequate re-compense for loss of employment, the payment of additional compensation related to the length of service of the employee cannot be said to be unreasonable. Nor can the provisicin for standardisation of compensation, which does not leave it to be judicially ascertained on the basis of the employer's capacity to pay or the loss suffered by the employees, be said to be unreasonable. Payment of gratuity, which is retiral benefit is essentially different from statutory compensation for term.ination of employ-ment due to closure of an undertaking; provision for payment of such compensation is not to be deemed unreasonable .merely because compensation for closure of an undertaking is in addition to gratuity, payable under an industrial award.

Since there can be no doubt as to th~ constitutionality of the principal provision for compensation, the proviso must also be regarded as constitutional.

The explanation to s. ZSFFF(l) of the Act does not provide that in no case of financial difficulty or accumulation of stocks coupled with other circumstances can the closure of an under-taking be regarded as due to unavoidable circumstances beyond the control of the employer. It cannot, therefore, be regarded as unreasonable for although it may be irksome to some citizem, it is in the interest of the general public.

1960 Hatisingh Mfg. Co. Ltd. v. Union of Indio

1960 Hatisingh Afjg, Co. LJd. v. Union of India

Mohd. Hanif Quareshi and 01s. v. The State of Bihar, [1959] S.C.R. 629 and Bi1ay Cotton Mills Ltd. v. The State of Ajmer, (1955] 1 S.C.R. 752, referred to. law which is applicable generally to all persons who come within its ambit cannot be said to be discriminatory and violative of Art. 14 of the Constitution, even though it may be retrospective in operation.

The impugned section does not make payment of compensa-tion condition precedent to closure and creates no criminal liability and so neither s. 31(1) nor s. 31(2) of the Act can have any application. Article 20(1) of the Constitution is not, there-fore, attracted and there can be no contravention of it.

ORIGINAL JuRrsmcnoN : Petitions Nos. 88 and lOli of J 957 and l03 of 1959.

Petition under Article 3'.! of the Constitution of India for enforcement of Fundamental Rights.

G. S. Pathak, I. M. Nariavati, S. N. Andley, ]. B. Dadaclwnji, Rameshwar Nath and P. L. Vohra, for petitioner No. l (In Petns. Nos. 88 of 57 and 103 of 1959).

I. M. Nmwvati; S. N. Andley, ]. B. Dadachanji, Ra1nes/1war Nath and P. L. Vohra, for petitioner No. 2 (In Petns. Nos. 88 of ii7 and IO:> of l'J'J!J).

B. Sen, B. K. B. Naidu and J. N. S/irof], for the

petitioner (In Petn. No. 106 of 57).

M. C. Setalvad, Attorney-General of India, C. K.

DajJ/itary, Solicilor-Genernl of India, B. R. L. Iyengar and R. H. Dhe!J11r, for respondents Nos. 1 and 2 (In Petn. No. 88 of 57) arnl the respondents (In Petn. No. 103 of 59).

C. K. DajJ!ttary, Solicitor-General of India, N. S. Bindra and R H. D/11:/Jar, for respondent No. 1 (In Petn. No. I 03 of 59). ]ananlan Sharma, for respondent No. 2 (In Petn. No. 103 of 59).

P. A. Melita and G. GojJalahrishnan, for the Intervener. HIGO. April H. The Judgment of the Court was delivered bv

SHAH, J.-' In these three petitions the validity of s. 25FFJ<° (l) of the Industrial Disputes Act No. XlV of 1947 as amended by Act ,18 of 1953 is impugned. Petition No. 88 of 1 %7 is by company manufac-tnrino-cotton textiles in the town o[ Ahmedabacl. The " machinery in the factory of the company was

s. 25FFJ<° (l) of the Industrial Disputes Act No. XlV of 1947 as amended by Act ,18 of 1953 is impugned.

installed in the year 1898 and has not been replaced thereafter. The factory had, it is claimed by the petitioners, become, by the passage of time, an un-economic unit and was closed on that account on April 27, 1957. An attempt was made by the manage-ment to increase the number of spindles to make the unit economic, but without success. The company was incurring losses year after year and early in the year 1956, the Registrar of Companies, Bombay, re-quested the Central Government to authorise him to wind up the company. This authority was not given and the factory continued to work till April 28, 1957, on which date it was closed after notice of closure given in March, 1957.

The petitioner in Petition No. I 06 of 1957 was running coal .mine which he had purchased in November, 1953. The petitioner says that he made large investments in the mine, but due to flooding by undergTound water, the working of the mine consist-ently resulted in losses which aggregated to over rupees seven lakhs by February, 1957. The petitioner decided to close the mine and gave notice in that behalf to the employees. The petitioner paid one month's salary to the monthly paid staff and 15 days' w;:iges to the weekly and daily rated staff, and closed the mine on February 10, 1957. Petition No. 103 of 1959 is by company which owns spinning and we;:iving factory at J amnagar. This factory which was started in the year 1938, proved an uneconomic unit, it is claimed resulting in persistent losses which aggregated to about Rs. 28 lakhs by the encl of the year l 9S7. In view of these losses, the weaving department of the factory was closed on February l, 19.57, ;incl the entire factory was closed on April 24, 1957, after notice of closure to the employees.

By their petitions the three petit10ners impugn the validity of s. 2SFFF( I) of the Industrial Disputes Act, 1947, which requires them to pay compens:ition on closure of their undertakings, which they claim were due to circumstances beyond their control.

To appreciate the contentions, brief review of the relevant legislative history may be set out :

Hatisingh Mfg. ro. Ltd. V. Union of India

.5/zah J.

1960 Hatisingh -~!Jg. Co. Ltd. v. Uninn of lnrlin Shah].

The Parliament amended the Industrial Disputes Act, 1917, by Act 4'l of 1953 and incorporated therein Ch. VA which contained ss. 2?iA to 25]. By this Chapter, provision was made for payment of compensa-tion for lay-off and retrenchment, and certain inci-dental provisions enunciating and regulating liability for payment: of compensation were enacted. By s. 2.~F it was enacted that no workman employed in any industry who had been in continuous service for not less than one year under an employer shall be retrench-ed unless the workman had been given notice of one month's duration or wages in lieu thereof and also had been paid at the time of retrenchment compensa-tion equivalent to 15 da)s· average pay for every completed year of se1-vice or any part thereof in excess of six months. Retrenchmellt was defined by cl. (oo) of s. 2, as ineaning- ter111ination of service of 'i\'Orkma11 for any reason whatsoever otherwise than as punish-ment inflicted by way of disciplinary action. But the amending Act of 1 'l53 did not expressly provide for liability to pay compensation for termination of employment on closure of an indnstrial undertaking. In f-fnriprasnrl Shivslwnlrnr S/111'1/a v. A. D. Divr:-lrnr (') decided on 27-11-1%6, it was held by this Court :"The word 'retrenchment' as defined in s. 2(po) ancl the worcl 'retrenched' in s. 2.~F of the Indus-trial Disputes Act, 1047, as amended by Act XL III of l 95n, have no wider meanin~ than the ordinary accepted connotation of those words and mean the discharge of surplus labour or staff by the employer for anv reason whatsoever, otherwise than as punish;,,cnt inflicted by way of disciplinary action, and do not include termination of services of all workmen on bona fide closure of industry or on change of ownership or management thereof."

The President of India on April 27, 19il7, promul-gated Ordinance No. IV of l 957, which amended Ch. VA of the Industrial Disputes Act, 1947. By this Ordinance, provision was made for payment with retrospective effect from December 1, l %6, of com-pensation to workmen on termination of employment (I) 1957] S.C.R. 121

upon transfer or closure of an industrial undertaking. This Orclinan<;e was latei' replaced with certain modifi-cations by Act 1 S of 19:)7 which came into force on June 6, 1957, but with retrospective effect from Novem-ber 28, 1956. Section 2SFFF which was incorporated by the amending Act by the first sub-section confers upon every workman who has been in continuous ser-vice for not less i:han one year immediately before the closure, right to notice and compensation in accordance with the provisions of s. 2.~F, and by the proviso thereto the maximum amount of compensation payable to wot:kman is limited to average pay for three months when the undertaking is closed on account of nrcum-stances beyond the control of the· employer. By the explanation, an undertaking closecl down on account . merely of financial difficulties (including financial losses) or accumulation of undisposecl of stocks is not to be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso.

This provision for a11·arcling compensation for termi-nation of employment on closure of an industrial undertaking is challenged in these petitions on three grounds : (J) that it imposes unreasonable restrictions on the freedom guaranteed to every citizen by Art. 19( I )(g) of the Constitution to carry on business which freedom includes the right to close his business, (II) that it discriminates between different employers belonging · to the same group placed in similar cir-cumstances and thereby contravenes Art. 14 of the Constitution, and (III) that contrary to Art. 20 of the Constitution, it penalises acts which when committed were not offences. Re. I:. Section 25FFF(l) is impugned as imposing unreason-able restrictions upon the fu11damental freedom to close down an undertaking because liability to pay compensation is made condition. precedent to closure of an undertaking even if it is effected bona fide by an employer who is unable on account of unavoidable circumstances to carry on the undertaking and also because it operates retrospectively on closure ,effected since date arbitrarily fixed by the Act. It is :ilso 6-,-6 SCI/ND/82

Hatisingh Mfg. Co. Ltd. v. Union of India Shah].

f-{nti~ingh .i\1je. Co, !Ad. v. Union of l11dia Shah].

impugned on the ground Lhat compcnsat:io11 is not related to the loss suffered by the employees by termi-nation of employment on closure, but is cm·anlccl at standardized rates without taking into account the capacity o[ the employer t.o pay compensation to discharged employees.

Snb-s. l of s. 2!iFFF reads as follm1·s:-

"\\'here an undertaking is close<! dmn1 for any reason every 'rorkrnan ,,vho ha~ l)ccn in continuous service fo1~ not. less than one year in that under-taking immediately before such closure, shall subject to the provisions of sub-section (2) be entitled to notice and compensation in accordance with the provisions of s. 2!iF, as if the workman had been retrenched."

There is between the text of s. 2.'iF and s. 25FFF(l) significant difference in phraseology. \\'hcreas by s. 20F-the constitutional validity 11·hereof does not fall t:o be determined in these petitions-certain con-ditions precedent to retrenchment of workmen are pre-scribed, s. 2t>FFF(l) merely imposes liability rn give notice and to pay compensation on closure of an undertaking· which results in termination of employ-ment of the 1rnrkmen. Under s. 2:iF, no workman employed in an industrial unclertaking can be retrench-ed by the employer until (a) the workman has been gi,·en one month's not.ice in writing indicating the reasons for retrenchment and the period has expired or the "·orkman has been paid salary in lieu of such notice, (b) the workman has been paicl retrenchment compensation C<]uivalent to l :) days' average salary for every completed year of service ancl (e) notice in the prescribed manner is sen·ccl on the appropriate Government .. Section ~iiFFFll) hnwcver enacts that the workman shall be entitled to notice and compensa-tion in acconlance with the pro,ision of s. 2.'iF if the undertaking is closed for any reason, as if the work-man has been retrenched. By the plain intenclment of s. 2.'>FFF(I), the right to notice and compensation for termination of employment: Arrn·s from closure of the undertaking; the clause does not seek to make closure effective upon payment of compensation and upon service of notice or pavment of wages in lie11 of

notice. An employer proposing to close his under-taking may serve notice of termination of employment and if he fails to do so, he becomes liable to pay wages for the period of notice. On closure of an undertak-ing, the workmen are undoubtedly entitled to notice and compensation in accordance with s. 25F as if they had been retrenched, i.e., the workmen are entitled besides compensation to month's notice or wages in lieu of such notice, but by the use of the words "as if the workman had been retrenched" the legislature has not sought to place closure of an undertaking on the same footing as retrenchment under s. 25F. By s. 25F, prohibition against retrenchment until the tondi-tions prescribed by that section are fulfilled is imposed; by s. 25FFF(l), termination of employment on closure of the undertaking without payment of compens:ttion and without either ·serving notice or paying wages in lieu of notice.,. is, not prohibited. Payment of com-pensation and payment of wages ·for the period of notice are not therefore conditions I precedent to closure. By Art. 19(1 )(g) of the Constitution freedom w carry on any trade or business is guaranteed to every citizen, but this freedom is not absolute. By cl. 8 of Art. 19, operation of any existing law or any law which the State mav make in so far as such law imposes in the interest of the general public reasonable restrictions on the exercise of the right is not affected. In the interest of the general public, the law may impose restrictions on the freedom of the citizens to start, carry on or close their undertakings. vVhether an. impugned provision imposing fetter on the· exercise of the fundamerital right guaranteed by Art. 19(1 )(g) amounts to reasonable restriction im-posed in the interest of the general public must be adjudged not in the background of any theoretical standards or predeterminate patterns, but in the light of the nature and incident.s of the right the interest of the general public sought to be secured by imposing the restriction and the reasonableness of the quality and extent of the fetter upon the right.

Halisivgh lvlfg. Co. Ltd.

U11ion of India

Shah].

By Act 18 of 19.57, employers who close their under-takings after November 27, 1958, are made liable to pay compensation under s. 25FFF(l) at the prescribed

1960 Hatifiiigh Mfg. Co. Ltd. v. Union of India Shah].

rates, and this liability evidently arises even in respect of undertakings closed before the date of the enact-ment of the impugned section. law which creates civil liability in respect of transaction which has taken place before the date on which the Act was enacted docs not jJer se impose an unreasonable restric-tion. It was on November 27, 1956, tbat this court held that s. 25F did not support claim for compensa-tion for termination of employment arising out of closure of an undertaking. The Parliament, evidently, respected the interpretation put on s. 25F by this court and directed that in respect of closures etfected ou or before the date on which judgment was delivered by this court in Tlariprasad's case, no compensation for termination of ernployment on account of closure of an undertaking would be awarded. It is not dis-puted that number of industrial undertakings were closed down after the judg·ment in Hariprasad's case was delivered by this court and more than 25,000 workmen were thrown out of employment on account of such closures. The Parliament, in view of these developments enacted s. ~,-,FFF(I) ·imposing· liability for payment of compensation by employers who closed their undertakings since November, 27, 1968. · Closure of an industrial undertaking involves termi-nation of employment of many employees, and throws them into the ranks of the unemployed, and it is in the interest of the general public that misery resulting from unemployment should be redressed. In Indian Hume Pipe Co Ltd. v. The Workmen (') this Court considered the reasom for awarding compensation under s. 2.5F (thoug·h not its constitutionality). It was observed that retrenchment compensation was intend-ed to give the workmen some relief and to soften the rigour of hardship which retrenchment brings in its wake when the retrenched workman is suddenly and without his fault thrown on the streets, to face the grim problem of unemployment. It \\'as also observed that the workman naturally expects and looks forward to security of service spread over long· period, but retrenchment destroys his expectations. The object of retrenchment compensation is therefore to give

(!) [1960] 2 S.C.R. 32

3 S.C.R. SUPREME COURT REPORTS

partial protection to the retrenched employee to enable him to tide over the period of unemployment. Loss of service due to closure stands on the same footing as loss of service due to retrenchment, for in both cases, the employee_ is thrown out of employment suddenly and for no fault of his and the hardships which he has to face are, whether unemployment is the resnlt of Tetrenchment or closure of business, the same. If the true basis of the impugned provisions is the achieve-.,,, · ment of social justice, it is immaterial to consider the motives of the employer or to decide whether the closure is bona fide or otherwise.Wages in lieu of notice are normally inadequate compensation for loss of employment in an industrial undertaking. Having regard to the prevailing condi-' · tions in the employment market, it would be difficult for the workman thrown out of empldyment to secure employment simi,lar to the one terminated within one month. and therefore the Parliament has thought it proper to provide for payment of additional ~ompen­sation besides wages in lieu of notice. The provision for payment of such compensation in addition to wages in l·ieu of notice cannot therefore be charac-terised as unreasonable. Compensation related to the length of service of the employee is also not unreasonable. An employee remaining employed in an industry for an appreciable length of time acquires experience and some degree of aptitude in the branch in which he is employed and his experience in that branch qualifies him to pro-motion and to receive . wages at higher level. By his continued employment, he reaches seniority in the cadre of employme11t, with chances of promotion, the 1 bei;iefit of which he loses by sudden termination of employment. The workman, on termination of employment, may have to compete for employment at ~ lower level in branches· to which he may be by experience or aptitude, not' fitted, or to seek employ-ment in· _job similar to the one terminated at a. lower ·) level. If, in the light of these considerations, the legislature has related the compensation payable on termination of employment to the period of service of

Iiatisingh Mfg. Co. Ltd. v. Union of lnaia Slzah ].

1960 Hatisiugh .'1{/'g. C'o. Ltd. v. U11io11 of India Shah].

the employee, the provision cannot be reganled as un-reaso11able.

The plea of unreasonableness of the restriction imposed as flowing· from the provision 11·hich stand-ardizes compensation and docs not leave it to be ascertained by judicial tribunal in the light of the capacity of the employer and the loss suffered by the employees on termination of employment, cannot also be sustained. Instead of leaving the question to be decided in each individual case in the context of v:iriety of ci1Tu111st:mc"cs having bearing on the amount of compensation to be awarclecl, the Parlia-ment has standardized the compensation by relating it to the length of service of the employee, and there-by definite standard for payment of rnmpensation related Lo readily ascertainable data is ptescribed .. , Standardization of compensation which dispenses with recourse to judicial tribunal for assessing the quan-tum is recognized method of awarding compensation especially where large nnmbers of workmen are in-volved in similar situation. Absence of provision for judicial verdict on the quantum of compensa-tion payable does not therefore make the law un-reasonable. Gratuity which is kind of retiral benefit is essen-tially different from statutory compensation for termination of employmellt due to closure of an under-taking. The objects intended to be achieved thereby are also distinct. Therefore the argument that it is unreasonable to awarrl statutory compensation under s. 2C>FFF(l) when gratuity is otherwise claimable uncle!' an award binding upon the employer must be rejected. The impugned section providing for payment of compensation is evidently related to the. object sought to be achieved by the Parliament, viz.: securing social justice. The right to receive compensation arises because the workman is exposed to undeserved "''mt and the reasons for closure mav have no direct bear-ing thereon. Payment of co1;1pensation which ts clircctecl to he marlc at the rate of l!i clays wages for every complctccl year of service cannot agaiff be characterised as was soug·ht t:o be done by one of the

ptescribed .. ,

learned counsel for the petitioriers as "drastic in its scope and content".

Does the impugner! provision impose an unreason-able restriction because it imposes liability to pay compensation which is not related to the capacity of the employer? Before the impugned section was enacted, the industrial tribunals undoubtedly decided the individual claims for compensation for termina-tion of employment submitted to them on their merits and sometimes, refused compensation if it was found that the closure was bona fide and was in part clue to irresponsible conduct of the workmen concerned. The decisions of the industrial tribunals before the impugn-ed. section was enacted again show that even where compensation was allowed, there was not fixed standard or principle on which the compensation was awarded. '[1]Vhere the business is continuing its capa-city to meet the obligation to pay clearness allowance, gratuity and provident fund, etc., may have to be taken into account; the reason being that if the capacity to pay is not taken into account, the busi-ness itself may come to an end and the very purpose of industrial adjudication in the, matter of fixation of wages, payment of dearness allowance and the schemes of gratuity and provident fund which are intended for the amelioration of the conditions of labour may be frustrated. But where business is closed, the capa-city to pay is not relevant consideration. Normally, if the business is capable of meeting the obligation to pay the wages of the workmen a)1d to meet the other expenses necessary for its continuance, it would not be closed down. Capacity to pay has therefore to be taken into account in the case of running busi-ness in assessing liability to fix wages or gratuity or clearness 'allowance. Once the undertaking is closed and liability to p:1y compensation under the irn pugned section is not made condition pre-cedent, the amount which the workmen may be able to recover must depend upon the assets of the em-ployer which may be available to meet the obliga-tion. The workmen would be entitled to recover compensation only if the employ.er is able to meet the obligation; otherwise they would have to rank pro

Halis£1tgh Mfg. Co. Ltd. v. Union of India

Shah}.

1960 f{atiJi11gh Alfi;. Co. Lt.f. v. [Jnfon of India Sl1t1h J.

rata 11·it:h the other ordinary creditors of the employer. The lcgisbture has imposed restricted liability in cases where closure is due to circumstances beyond the cont:rol of the employer. By the proviso to sub-s. I of s. 2iiFFF, where the underwking is closed down on account of circumstances beyond the control of the employer, the compensation to be paid to the 11·ork· men is not to exceed his average pay for three months. If the principal provision is not unconstitutional as imposing an unreasonable restriction, it is not suggest-ed that: the proviso is on any independenl ground unconsti t:ntional. However, the explanation to s. _,, 9'FFF • proviso . 1s, . it is snbmirted, unreasonable. The explanation pro-vides: "An undertaking· which is closed down hy reason merely of financial difTicnlties (including financial losses) or accumulation of undisposed of stocks shall not be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer within rhe mem1ing of the proviso to this sub-section."

The .efl:cct of the impugned section along with the proviso is to classify the undertakings into two classes, viz., (I) those which are closed clown on account of una\toiclable circumstances beyond the control of the employer and (2) the remaining. \Vhen the closure of an undertaking is clue to circumstances beyond the control of the enrployer, the maximum limit of. com-pensation is average pay for three months, irrespective of the length of service of the workmen; in the resi-duary class, the liability is unrestricted. The explana-tion is in substance definition clause which sets out what shall not be deemed to he closures on account of circumstances beyond .the control of the emp1oyer. By this explanation, employers who had to close down their industrial undertakings merely because of finan-cial difficulties including financial losses or accumula-tion of und is posed of stocks are excluded from the benefit of the proviso to s. 25FFF(l). The proviso restricts the liability of employers who are compelled to close down their undertakings on account of un-avoidable circnmstances beyond their control, but in

the view of the Parliament, in that category are not to be included employers compelled to close down their undertakings merely becau:;e of financial difficulties or accumulation of undisposed of stocks. Closure of an undertaking attributable merely to financial difficulties or accumulation of undisposed of stocks, is by the explanation, excluded from the benefit of restricted liability; but couplecl with other circumstances, finan-cial difficulties or accumulation of undisposecl of stocks may justify the view that the closure is due to un-avoidable circumstances beyond the control of the employer, and attract the application of the proviso notwithstanding the explanation. V\There an undertaking is closed down on account of persistent losses clue to no fault of the employer or due to accumulation of stocks having regard to per-sistent unfavourable market conditions, the closure may normally be regarded as clue to unavoidable cir-cumstances beyond the ,control of the employer. By, the explanation, the jurisdiction of the Tribunal which may be called upon to ascertain whether in given case, the closure ·was on account of circumstances beyond the control of the employer and whether on that account ·the employer was entitled to the benefit of the proviso may he restricted. But it is not pro-vided that in no case of financial difficulty or accumu-lation of stocks coupled with other circumstances, the closure is to be regarded as due to unavoidable cir-cumstances beyond the control• of the employer. It is only where the closure is "merely" on account of financial difficulties or accumulation of undisposed of stocks that the closure is not to be deemed due to cir-cumstances beyond the control of the employer.

state of financial difficulties or accumulation of undisposed of stocks may be temporary, it may be brought about by past mismanagement directly attri-butable to the employer or may even be deliberately brought about. The closure on account of financial difficulties or accumulation of undisposed of stocks is accordingly not necessarily the result of unavoidable circumstances beyond the control of the employer. That, in certain events, statute may impose restric-tions which will be irksome and may be so regarded 7-6 SCI/ND/84

1960 Hd!isingh Mfg. Co. Ltd. v. Union of India Shah].

Hatisi11gh M.fff. ( 'o. f./d. V. Union of India Shah J.

by cenain citizens as unreasonable, is not decisive of the question whether it imposes reasonable restric-tion. As observed in Mohr!. Hanif Q11m·f'shi and Othrrs v. Thi' Stat!' of Bihar (')by Das, . .J.:

"In determining that question (the reasonableness of the restriction) the court we conceive, cannot proceed on general notion of "·hat is reasonable in the abstract or even on consideration of "·hat i.s reasonable from the point of view of rhe person or persons on whom the restrictions arc imposed. The right conferred by sub-cl. (g) is expresser! in general lang·uagc and if there had been no qm.lify-i11g provision like cl. (6), the right so conferred ;rnukl have been an absolute one. To the person "-ho has this rig·ht, any rcst:riction will be irksome :rnd may well be regarded by him as unreasonable. But the question cannot he decided on that basis. \\'hat the court has to do is to consider whether the restric-tions imposed are reasonable in the interest of the g~ncral public."

Again, as observed in Bijay Cotton Mills Uri. v. Thi' Sl11fl' of jmer ('):

"Individual employers might find it difficult to (arry on the business on the basis of the minimum wages fixer! under the Act hut this must he due entirely to the economic conditions of these parti-cular employers. That cannot be reason for the striking dmrn the law itself as unreasonable". By the explanation, certain person., became of persistent: losses or accumulation of stocks, find them-selves unable to carry on the business, and may still not be entitled to the benefit of the proviso, hut that "'iii not be gronrnl for holrling th;it the explanation is unreasonable. The tribunal called upon to decide "·hcther the case of an employer is coverecl hv the proviso will certainly be entitled to look into the causes which led to the financial losses or the accumu-lation of stocks and ascertain whether the closure was merely on account of financial losses or accumulation of stocks or was on ;iccoum of circumstances beyond the control of the employer, and in assessing whether the (1) [1959] s.c.R, 629, (2) [19.>oJ J s.c.R. 7o2, 7os,

circumstances "'ere beyond the control of the employer, the fact that the employer has suffered financial losses or there is accumulation of stocks is not required by the legislature to be excluded from consideration.

The procedure for enforcement of liability to pa) compensation, prescribed by s. 33( c) of the Act which makes the amounl recover;ible as arrears of land revenue cannot, ex fac£c, be regarded il.S unreasonable Undoubtedly, under certain State laws, (e.g., the. Bom-bay Land Revenue Code (Act V of 1879) for failure to pay land revenue, rhe defaulter may be imprisoned; but because of the special mode of recovery prescribed the law imposing civil liability to pay compensation for termination of employment does not become unrea-sonable. On review of the relevant circumstances we are ol the view that the restrictions imposed. by the impugned provision including the proviso are not unreasonable restrict.ions on the exercise of fundamental right of the employers to conduct and close their undertakings. The provision requiring the employers to pay compen-sation to their employees though restrictive of the fundamental freedom guaranteed by Art. 19(1 )(g) is evidently in the interest of the general public, and is therefore saved by Art. 19(6) of the Constitution from the challenge that it infringes the fundamental right of the employers.

Re. II:

Art. 14 of the Constitution is not violated by making · by law distinction betwee.n employers who closed their undertakings on or before November 27, 1956, and those who close their undertakings after that date. The State is undoubtedly prohibited from denying to any person equality before the law or the equal i~ro­tection of the laws, but by enacting law which applies generally to all persons who come within its ambit as from the date on which it becomes operative, no discri-mination is practised. \\!hen Parliament enacts law imposing liability as flowing from certain transactions . prospectively, it evidently makes distinction between those transaclions 11·hich are covered by the Act and those which are not covered by the Act, because they

Hatisin.~h Alfg. Co. Ltd. v. Union of India --' Shah J.

1960 Halisingh J.lfjg. Co. Ltd. v. Union of India Shah].

were completed before the dale 011 wliich the Act was enacted. This differentiation, however, does not amount Lo discrimination which is liable Lo be struck clown under Art. 14. The power of the legislature to impose civil liability in respect 0£ transactions com-pleted even before the date on 'd1ich the Act is eHacted does not appear to be restricted. If, as is conceclccl-and in our judgment rightly-by statute imposing civil liability in respect of post enactment: transactions, no discrimination is practised, by statute which imposes liability in respect 0£ t.r;insaction which have taken place after date fixed by the statute, but before its enactment, it cannot be said that discrimina-tion is practised. An. 14 strikes at: discrimination in the application 0£ the laws bet"·cen persons simi-larly circumstanced; it docs not strike at differentia-tion which may res11lt by the enactment 0£ law bet-wee11 transacticms governed thereby and those which are not governed thereby. If the argument that discrimination results when by statute civil liability is imposed upon tramact ions which were otherwise not subject to such liability be accepted, every law which imposes civil liability will be liable to be struck down under Art. 14 even if it comes into operation on the date on which it is passed, because immediately on its coming into operation, discrimination will arise be-tween transactions which will be covered by the law after its coming into force and transactions before the law came into force which "'ill not naturally be hit by it. If statute creating civil liability which is strictly prospective is not hit by Art:. l4, law "·hich imposes liability on transactions which have taken place before the date on which it was enacted, cannot also be hit by An. 14. By bringing "·ithin its fold transactions before rhc elate of its enactment, in truth, the date or the application of the Act is related back to period anterior to the date on which the Act was enacted.

Re. Ill:

For reasons already set out:, payment of compensa-tion and wages in lieu of notice under the impuf(nccl section are not made conditions precedent to effective

termination of employment. The· section only creates right in the employees; it does not enjoin the em-ployers to do anything before closure. Section 31 (2) of the Act which imposes penal liability for contraven-tion of the provisions of the Act can therefore have no application to failure to make payment of com-pensation and wages for the period of notice under s. 25FFF(l). The amending Act was, it is true, passed in June, 1957, and liability to pay compensation arises in respect of all undertakings dosed on or after November 26, 1956. But, if liability to pay compensa-tion is. not condition precedent to closures, by failing to discharge the liability to pay compensation and wages in lieu of notice, the employer does not contra-vene s. 25FFF( 1 ). statute may prohibit or command an act and in either case, disobedience thereof will amount to contravention of the statute. lf the statute fixes criminal liability for contravention of the prohibi-tion or the command which is made applicable to transactions which have taken place before the date of its enactment the protection of Art. 20(1) may be attracted. But s. 25FFF(l) imposes neither prohibi-tion nor command. Under s. 25F, there is distinct prohibition against an employer against retrenching employees without fulfilling certain conditions. Similar prohibitions are found in ss. 22 ·and 23 of the Act. If this prohibition is infringed, evidently, criminal liabi-lity may arise. But there being no prohibition against closure of business without payment of compensation, s. 31(2) does not apply. Bys. :J3(c), liability to pay compensation may be enforced by coercive process, but that again doe~ not amount to infringement of Art. 20( I) of the Constitution. Undoubtedly for failure ro discharge liability to pay compensation, person may be imprisoned, under the statute providing for recovery of the amount, e.g., the Bombay Land Reve-nue Code, but failure to discharge civil liability is not unless the statute expressly so provides, an offence. The protection of Art. 20(1) avails only against punish-ment for :rn act which is tre;:itcd ;:is ;:in offence. which when rlone w;:is not an offence.

Hatisingh lvlfg. Co. Lt<(. v. Union of Iudia Shah J.

196U ln our view, the impugned s. ~.'iFFF(I) indudiug J-Ialisi11gh .1.\lfg. the proviso and the explanation thereto are not 1111-Co. Lid. constillltional as infringing· the freedom guaranteed by Union v. of India Art. 19(l)(g) of the Constitution or as infringing Arts. 14 or 20 of the Constitution. On that. view, the petitions fail and are dismissed "·ith costs. There will univ be one hearing fee. '

Pe!.ilions dis111issed..

QAMAR SHAFFI TYABJI

v. THE COi\li\JlSSlONER, EXCESS PROFITS TAX, HYDERABAD

(S. K. DAs, J. L. KAPCR and 1\I. 1-lmAYATCLLMI, Jj.)

196U April 18.

Excess Profits Tax-Managing Agency and Selling Agency agreements-Construction-Delegation of Agency-Delegate, whe-ther agent or employee-Remuneration and commission derived by such delegate-Liability to tax-Indian Contract Act, 1872 (9 of 1872), s. 194.

By an order of the Ruler of the erstwhile State of Hyderabad an institution was formed for the development of industries on behalf of the Government, called the Industrial Trust Fund, to be managed by committee called Trustees. In 1934 the Trustees entered into agreements with two cotton mills situated in the State by virtue of which they were appointed secretaries, trea-surers and agents of the said mills. They were gi ,·en the general inanagement of the mills including the power to appoint emp-loyees and were also appointed selling agents of the mills. By sepa-rate agreements the Trustees were -given power to delegate to other persons all or any of the powers under the agreements subject to the approval of the Board of Directors of the respective mills. On December 6, 1938, the Truste~s entered into an agree-ment with the appellant whereby they delegated their powers in his favour and appointed him as the managing agent of their business as secretaries, treasurers and agents, as also selling agent of the two mills, subject to their general control. The appel-lant was to hold the office of managing agent and selling agent for the remaining period of the original' managing agency and. selling agency agreements. The remuneration of the appellant for the managing agency was fixed at Rs. 2,000 per month and commission of 21 per cent. out of the commission of 121- per cent. per annum on the annual profits payable to the Trustees. For the selling agency separate commission was payable on the sale of different kinds of goods. Clause 9 of the agreement provided