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MADHYA PRADESH DAINIK VETAN BHOGI KARMACHARI SANGH V/S STATE OF M.P., decided on Monday, June 30, 2003.
[ In the High Court of Madhya Pradesh, Writ Petition 1886 of 1999, 96 of 2001. ] 30/06/2003
Judge(s) : DIPAK MISRA & A.K.VASTAVA
Advocate(s) : R.K. Gupta, R.N. Shukla, S.K. Yadav.
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madhya,pradesh,dainik,vetan,bhogi,karmachari,sangh,of,mp,

  "2003 (4) MPHT 199"  







judgment - (1.) IN this batch of writ petitions filed under Articles 226 and 227 of the Constitution of India the petitioners have prayed for quashment of the Notification No. F. 15-17-97-XVI-A dated 20-14999 (Annexure P-4) published in the M. P. Gazette (Extra-ordinary dated 21st January 1999) on the ground that it is void illegal unconstitutional discriminatory and without jurisdiction.(2.) BY the said notification issued by the State of Madhya Pradesh in exercise of power conferred on it by Sub-section (3) of Section 1 of the Madhya Pradesh Industrial Relations Act 1960 (for brevity 'the Act') the amendment in the Notification dated 31-12-1960 pertaining to entry No. 16 has been amended as under :-16. Engineering including Motor Vehicle but excluding engineering industry being carried on by any Department of the State Government. The grievance of the petitioners pertains to the later part of the said amended notification which has been inserted viz. excluding engineering industry being carried on by any Department of the State Government.(3.) ACCORDING to the petitioners before the amendment they were governed by the unamended Act and by the exclusion of the engineering industry being carried on by the Department of State Government a fatal dent has been created in their service career and it has created hurdle in the redressal of their grievances under the Industrial Jurisprudence.(4.) ACCORDING to the petitioners the Act was enacted and came into effect from 31-12-1960 and by the said Act the Bombay Industrial Relations Act 1946 was repealed. According to the petitioners the unamended Act was akin to the Bombay Industrial Relations Act wherein various industries including engineering were covered.(5.) IT has been putforth by the petitioners that by the impugned Notification (Annexure P-4) the State Government had in fact snatched away the valuable right of the employees of the engineering industries of the State as they have now been deprived to approach the Labour Court directly for the redressal of their grievances. The consequences are apparent and now they have to take recourse under the provision of the Industrial Disputes Act 1947. The petitioners in their petition have tried to demonstrate that how the Act was more beneficial to them in comparison to that of the Industrial Disputes Act. The main contentions of the petitioners attacking the validity of the impugned notification can be broadly summarized as under :-the State Government has no jurisdiction or power to issue the impugned Notification (Annexure P-4) because Sub-section (3) of Section 1 of the Act is in the nature of conditional legislation; (2) The Madhya Pradesh Legislature had passed the Act which is complete in all respects and the choice of the industries to which it is extended and the date from which it is to be made applicable has been delegated to the State Government; (3) The State Government after having exercised the power in selecting engineering industry as the industry amongst other specified in the Notification dated 31-12-1960 and having decided it to apply the said Act to all the industries specified therein with effect from the date of Notification the State Government has become functus officio and it would not be permissible for it thereafter to issue any further Notification for withdrawing the application of the Act in respect of the industries to which it has already made the same applicable; (4) The action of the State Government issuing the impugned Notification is nothing but amounts to repealing of the Act which is not in its competence as the said power can only be exercised by the State Legislature; (5) As the Act is akin to the Act of Bombay Industrial Relations Act in which as per Section 2 (5) the power to withdraw a particular provision is very much there but there is no such provision in the present Act; (6) Even if a power conferred by Sub-section (3) of Section 1 of the Act to the State Government is in the nature of delegated legislation then it would not include the power of modifying or cancelling the Notification and if it is to be held that the powers conferred includes power to amend an existing Notification so as to withdraw a particular industry from the operation of the Act such a delegation would be ultra vires suffering from the vice of excessive delegation.(6.) THE State Government filed its return and submitted that the impugned Notification is well within the competency of the State Government and there is nothing in it so as to hold it to be ultra vires.(7.) WE have heard Mr. R. K. Gupta and Shri R. N. Shukla learned Counsel for the petitioners and Shri S. K. Yadav learned Government Advocate for the State.(8.) FOR the better understanding it would be fruitful to re-write Section 1 of the said Act which reads thus :-1. Short tile extent and commencement.-- (1) This Act may be called the Madhya Pradesh Industrial Relations Act 1960. (2) It extends to the whole of Madhya Pradesh. (3) This Section and Section 112 shall come into force at once and the State Government may by Notification bring all or any of the remaining provisions of this Act into force in respect of- (a) any or all industries; or (b) undertakings in any industry wherein the number of employees on any day during twelve months preceding or on the date of the Notification or on any day thereafter was or is more than such number as may be specified in such Notification on such date as may be specified therein. (9.) THE State Government vide Notification No. 9952-XVI dated 31st December 1960 by exercising powers conferred by Sub-section (3) of Section 1 of the Act directed all the provisions of the said Act other than Section 112 to come with effect from 31st December 1960 in respect of undertaking in the industries specified in the Schedule wherein the number of employees on any date during twelve months preceding or on the date of said Notification or any day thereafter was or is more than hundred.(10.) THIS Notification has been placed on record as Annexure P-1. Certain industries were later on inserted in the Schedule and at item No. 16 which was existing before the impugned Notification (Annexure P-4) was existing as :16. Engineering including manufacture of motor vehicle. (11.) IT is well settled in law that the legislation in India has been held to possess wide power of delegation but the limitation is that a legislature can not delegate uncanalised and uncontrolled power viz. the power which would be delegated must not be unconfined and vagrant.(12.) THE delegation is valid when the legislative policy and guidelines to implement it are adequately laid down and the delegatee is only empowered to carry out the subsidiary policy within the guidelines and frameworks laid down by the Legislature. [see Tata Iron and Steel Co. Limited v. Workmen of Tata Iron and Steel Co. Ltd. and Ors. AIR 1972 SC 1917 (Para 11) and Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax and Ors. AIR 1974 SC 1660]. What is permitted therefore is the delegation of ancillary or subordinate legislative functions or as fictionally called a power to fill up the details. In this context it shall be profitable to refer In re. Article 143 Constitution of India and Delhi Laws Act (1912) etc. AIR 1951 SC 332. Therefore if on a liberal construction of a given statute a legislative policy and guideline for its execution are brought out the statute even if skeletal will be upheld and it will not be a valid argument that the Legislature should have made more detailed provisions. Thus even if there is specific provisions as per Section 2 (5) of the Bombay Industrial Relations Act 1946 specifically conferring power of withdrawal of any of the industry under the said Act it can not be said that in the present Act by virtue of sub-section of Section 1 the power to withdraw or modify a particular item from the Schedule to this Section is not there. The Supreme Court in the case of Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal U. P. and Ors. AIR 1961 SC 1381 while dealing the provision of Section 3 of U. P. Industrial Disputes Act 1947 wherein the U. P. State Government by exercising power conferred on it by Section 3 for making certain provisions by general or special orders if in its opinion was necessary or expedient so as to do for securing public safety on convenience or the maintainance of public order or supplies and services essential to the life of the community or for maintaining employment held that Section 3 of the U. P. Industrial Disputes Act 1947 does not suffer from excessive delegation and is not unconstitutional on that ground. The Apex Court held that in enacting Section 3 the Legislature has indicated its policy and has made it a binding rule of conduct.(13.) THE Supreme Court in the case of Edward Mills Co. Ltd. Beawar and Ors. v. State of Ajmer and Anr. AIR 1955 SC 25 while dealing with Section 27 of the Minimum Wages Act and Rule 3 under the said Act held that the State Government was in its competence to fix the term of the Committee constituted under Section 30 when it is constituted and may from time to time extend it as circumstances require. It was further held by the Apex Court that the State Government was having a right to extend the term of the Committee in such a way as it likes. It could do so after the period originally fixed has come to an end so as to revive it. While incorporating Section 27 it was held that when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of Constitutional Law that everything necessary to the exercise of a power is included in the grant of the power. A legislature can not certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law making has to be discharged by the legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure. The Supreme Court in Para 17 has held as under :-it is to carry out effectively the purpose of this enactment that power has been given to the appropriate Government to decide with reference to local conditions whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. We do not think that in enacting Section 27 the legislature has in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee can not therefore succeed. (14.) IN the case of Bhikusa Yamasa Kshatriya (Pri) Ltd. v. Union of India and Anr. AIR 1963 SC 1591 the Supreme Court while dealing with the provisions of Section 85 of the Factories Act 1948 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on and which involves the consequences that the place is deemed a factory it was held that the persons working therein are deemed workers and is not by itself discriminatory and therefore notification issued by the Maharashtra Government under Section 85 (1) making the bidi-rollers in the specified places deemed workers and entitling them to the benefits provided under the Act was also held not to be attacked on the ground that the State has issued the Notification by selecting for application of the provisions of the Act some out of the places in which bidi manufacturing process are carried on. Thus the powers empowered by the State Government by extending provision of Section 85 of the Factories Act 1948 to an establishment which is not otherwise factories within the meaning of the Act was not found to be excessive delegation.(15.) SIMILARLY in the case of Mohmedalli and Ors. v. Union of India and Anr. AIR 1964 SC 980 the Apex Court while dealing with Section 17 and (1) (3) (b) of the Employees' Provident Fund Act 1952 empowering the appropriate Government under the said Act to exempt any establishment from the operation of or any of the provisions of a scheme framed under the Act was held to be controlled and canalised and therefore it was held to be a valid and was not hit by the excessive delegation. In another decision The Tulsipur Sugar Co. Ltd. v. The Notified Area Committee Tulsipur AIR 1980 SC 882 the Supreme Court while dealing with Section 3 of the U. P. Town Area Act under which powers were conferred on the State Government to declare any area as a town area to define the limit of the town area and to include or exclude any area to define the limit of the area it was held that the Notification issued under Section 3 was not in excessive delegation.(16.) TO bring about effective measure or cancellation of a statutory order or rule the order or rule effecting amendment or cancellation must be made in the manner the original order or rule is required to be made. There is implied power of amendment or cancellation which is subject to the same limitations which are applicable to the original exercise of the power. In this context it shall be apposite to refer Section 21 of the M. P. General Clauses Act 1957 which reads thus :-21. Power to make to include power to add to amend vary or rescind orders etc.-- Where by any Madhya Pradesh Act a power to issue Notification orders rules or bye-laws is conferred then that power includes a power exercisable in the like manner and subject to the like sanctions and conditions if any to add to amend vary or rescind any notifications orders rules or bye-laws so issued. This section is pari materia to Section 21 of General Clauses Act.(17.) THE Supreme Court in the case of Kamla Prasad Khetan and Anr. v. Union of India AIR 1957 SC 676 has held that power to amend which is included in the power to make the order is exercisable in the like manner and subject to the like sanction and condition if any as govern the making of the original order. But at the same time it is to be remembered that the Section embodies a rule of a construction and the rule must have reference to the context and subject-matter of the statute to which it is applied.(18.) IN the present case the impugned Notification (Annexure P-4) is in reference to context of the Act and therefore it can not be said to be ultra vires. The question whether the State Government was competent to issue the impugned Notification amending and modifying entry No. 16 can be tested by keeping the said provision in juxtaposition with Section 21 of the M. P. General Clauses Act which confers power to add to amend vary or rescind any Notification orders rules bye-laws and by keeping both the provisions together it would become crystal clear that the State Government was competent to issue impugned Notification on the basis of powers conferred to it under Section 1 (3) of the Act. In the case of Gopi Chand v. Delhi Administration AIR 1959 SC 609 and State of Bihar v. D. N. Ganguly AIR 1958 SC 1018 it was held by Their Lordships that it is well settled in law that the rule of construction embodied in Section 21 of the General Clauses Act can apply to the provisions of a statute only where the subject-matter context or effect of such provision are in no way inconsistent with such application.(19.) IN the case of Laghu Udyog Karmachari Co-operative Housing Society Ltd. v. State of M. P. and Ors. 1975 JLJ 547 in Para 9 the Division Bench of this Court while dealing with the provisions of Sections 71 and 83 of M. P. Town Improvement Trust Act 1961 held that the Trust had the power to include any land in a scheme when it prepares a scheme for the development of a town. It was further held while interpreting Section 21 of M. P. General Clauses Act that by virtue of this Section power to issue Notification orders etc. includes power to add to amend vary or rescind any Notification orders rules or bye-laws so issued and thus it was held that the State Government while exercising power conferred on it under Section 71 of the Town Improvement Trust Act would issue a Notification including any land in a particular scheme by operation of Section 21 of the General Clauses Act. It also had the power to issue a Notification releasing a portion of the land from the scheme. If in the present case the said dictum is applied then it would become unquestionably clear that the State Government has the power to issue impugned Notification deleting excluding engineering industry being carried on by any Department of the State Government from entry No. 16 of the Act.(20.) THE power to create includes the power to destroy and also the power to alter what is created. Similarly power to rescind a notification is inherent in the power to issue the notification and there is always an implied power of cancellation which must be determined with reference to the context and the subject-matter of the statute. The exercise of a power to make subordinate legislation includes power to rescind the same.(21.) THE Division Bench of Allahabad High Court presided by Justice V. N. Khare (as His Lordship then was) in the case of Swatantra Bihar Sahkari Avas Samiti Ltd. v. The State of U. P. and Ors. AIR 1992 Allahabad 196 while dealing the provisions of Section 9 (1) (a) and (2) (b) of the Stamp Act held that the said provisions empower the State Government to exempt any particular class or co-operative society from stamp duty chargeable of instrument executed by such co-operative society and if the said exemption is withdrawn by the Government action was held not to be discriminatory. Similarly in the instant case if the State Government by the impugned Notification has deleted the Engineering Industry being carried by it the Notification can not be held to be discriminatory.(22.) THE Division Bench of this Court in the case of Sahdeo Sahu v. State of Madhya Pradesh and Anr. 1989 MPLJ 604 while dealing the provision to fix minimum wage under the Minimum Wages Act it was held that where the minimum wages were fixed by earlier appropriate Government the same can be rescinded subsequently by it when strength in Schedule employment falls below 1000. The Division Bench while referring to Section 21 of the General Clauses Act held that the power to rescind the wages once fixed without any express provision in that regard in Section 3 (1-A) of the Minimum Wages Act will be interfered with reference to Section 21 of the General Clauses Act because under Section 21 of the General Clauses Act it is always implicit where a power to issue Notifications orders rules or bye-laws is concerned then that power includes a power exercisable in the like manner and subject to like sanction and conditions (if any) to add to amend vary or rescind any notification orders or bye-laws so issued and thus it was held even so an effective cancellation of an order or rule must be made only in that manner. The Division Bench while giving example whether an order or rule is required to be published in a Government gazette has been published it can only be amended or cancelled by subsequent order or rule which is published also in the like manner. In the present case also the impugned Notification has been published in the Government Gazette amending earlier Notification. Single Bench of Bombay High Court in the case of Zipper India Pvt. Ltd. and Ors. v. Union of India and Anr. 1988 Lab. IC 1601 while interpreting the provisions of Section 29 (B)-2a of Industries (Development and Regulation) Act has held that by virtue of Section 21 of the General Clauses Act power of de-reservation is implicit in Section 29-B of the said Act.(23.) RECENTLY the Division Bench of this Court in the case of A. K. Shrivastava v. Union of India and Ors. 2002 M. P. L. S. R. 646 = 2002 (3) M. P. H. T. 1 while dealing with the Notification issued by the State Government abolishing the Madhya Pradesh State Administrative Tribunal has held in Paras 77 78 and 79 thus :-77. A fair reading of Sub-section (1) of Section 74 of the Act of 2000 makes it abundantly clear that by virtue of powers given by this sub-section the Tribunal shall continue to function in the successor State of Madhya Pradesh and also exercise jurisdiction over the State of Chhattisgarh for a maximum period of two years from the appointed date or till such period as is decided by mutual agreement between the successor States to abolish the same on the expiry of that period whichever is earlier. It is therefore manifest that both the successor States will decide as to when the Tribunal shall cease to function by mutual agreement and unless it is so decided it shall continue to function for a period of two years. Sub-section (1) of Section 74 does not provide the mode of actual abolition of the Tribunal. Since no specific procedure has been provided for abolition of a Tribunal in the A. T. Act the decision to abolish the Tribunal can be executed in the same way as the decision to establish the Tribunal was executed as per provisions of Section 21 of the General Clauses Act 1897. Section 21 of the General Clauses Act runs as under :-21. Power to issue to include power to add to amend vary or rescind Notifications orders rules or bye-laws.-- Where by any Central Act or Regulation a power to issue Notifications orders rules or bye-laws is conferred then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any) to add to amend vary or rescind any notifications orders rules or bye-laws so issued. 78. It is the settled law that power to create includes the power to destroy and also the power to alter what is created. There is no gainsaying that the power to rescind a Notification is inherent in the power to issue the Notification. It is also well settled that the specific provision regarding the power to vary amend or rescind Notification etc. could also be made in the Act itself. Such specific provisions may be co-extensive with or narrower or wider than provision contained in Section 21 of the General Clauses Act. It is also well settled that where the specific provision is made in the Act itself the specific provision would prevail and in that case there is no need to invoke Section 21 of the General Clauses Act. Since there is no provision at all in the Administrative Tribunals Act regarding the mode of abolition of the Tribunal the provisions of Section 21 of the General Clauses Act would be invoked. If any Notification issued by the Government is to be rescinded by virtue of the powers given under Section 21 of the General Clauses Act such power to rescind the Notification must be exercised in like manner and subject to the like sanction and condition as in the case of issuing the Notification. 79. In view of above we are of the considered opinion that since no mode to rescind the notification establishing the Tribunal has been provided in the A. T. Act the provisions of Section 21 of the General Clauses Act will have to be invoked for rescinding the Notification establishing the Tribunal. Since the Notification for establishment to the Tribunal was issued under Section 4 (2) of the A. T. Act by the Central Government on the receipt of a request from the State Government the Notification rescinding the earlier Notification establishing the Tribunal shall invariably be issued by the Central Government on the receipt of a request in this behalf of the State Government. If the Central Government accepts the request of the State Government and consequently issues Notification establishing the Tribunal for the State and at subsequent stage the State Government makes a request to abolish the Tribunal in that case the Central Government is under obligation to accept the subsequent request of the State Government and in consequence thereof to issue Notification rescinding the earlier Notification whereby the Tribunal was established. Moreover Section 74 (1) of the Act of 2000 empowers the State Government not the Central Government to take decision for continuance or abolition of the Tribunal and therefore in our considered opinion the Central Government on receiving request from the State Government to abolish the Tribunal has no other option but to accept the above request of the State Government and in consequence thereof to issue a Notification rescinding the earlier Notification whereby the Tribunal was established.(24.) THE learned Counsel for the petitioners placed heavy reliance on Lachmi Narain etc. v. Union of India AIR 1976 SC 714 and submitted that once the power has been exercised by the State Government it becomes functus officio. In the said case Their Lordships while placing reliance in In Re Article 143 Constitution of India and Delhi Laws Act (1912) etc. (supra) which has been discussed by us hereinabove has held in Para 52 as under :- 52. Out of the majority who upheld the validity of this provision of Section 2 of the Laws Act with which we are concerned. Fazi Ali J. explained the scope of the words such modifications as it thinks fit in Section 2 thus :-52. These are not unfamiliar words and they are often used by careful draftsman to enable laws which are applicable to one place or object to be so adapted as to apply to another. The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law and in the context in which the provision as to modification occurs it can not bear the sinister sense attributed to it. The modifications are to be made within the framework of the Act and they can not be such as to affect its identity or structure or the essential purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. (25.) WHILE analysing the In Re Art 143 Constitution of India and Delhi Laws Act (1912) etc. (supra) in Para 53 Their Lordships further quoted the observation of Vivian Bose J. which we think it apposite to reproduce :53. Vivian Bose J. also observed in a similar strain at p. 1124 (of SCR) = (at p. 440 of AIR) : the power to restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate and that namely the power to legislate all authorities are agreed can not be delegated by a legislature which is not unfettered. (26.) THEIR Lordships in Para 55 further quoted the passage of S. R. Das J. (as His Lordship then was) which we again think it appropriate to reproduce :55. S. R. Das J. (as He then was) delineated the scope of the power of modification given under Section 7 of the Delhi Laws Act 1912 (for short 'the Delhi Act') at p. 1089 as follows :--it may well be argued that the intention of Section 7 of the Delhi Laws Act was that the permissible modifications were to be such as would after modification leave the general character of the enactment intact. One of the meanings of the word modify is given in the Oxford Dictionary Vol. I Page 1269 as to alter without radical transformation. If this meaning is given to the word modification in Section 7 of the Delhi Laws Act then the modifications contemplated thereby were nothing more than adaptations which were included in the expressions mutatis mutandis and the restrictions limitations or proviso mentioned in the several instances of conditional legislation referred to by the Privy Council (in Burah's case).(27.) ON a careful perusal of the case of Lachmi Narain (supra) it is perceivable that Their Lordships have unequivocally held that the infrastructure of the particular statute should not be changed under the garb of modification. In the present case by the impugned Notification the basic structure of the Act is not changed or altered. Indeed entry No. 16 is also not totally abolished or repealed but its application has been reconstructed. The entry No. 16 is still existing in its amended form and therefore the skeleton or the basic structure of the Schedule is not changed. Therefore the case of Lachmi Narain (supra) is not applicable in the present case.(28.) RECENTLY the Apex Court in the case of St. Johns Teachers Training Institute v. Regional Director National Council for Teacher Education and Anr. 2003 AIR SCW 894 while dealing with the provision regarding vires of Regulations 5 (e) (f) framed by National Council for Teachers Education held that the legislation can not possibly foresee every administrative difficulty that may arise in operation of statute and the delegated legislation fills those needs. In this context it shall be profitable to refer Para 10 of the said decision which reads thus :- the power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limit of authority conferred by the Act. Rules can not be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions or what is fictionally called a power to fill up details. The legislature may after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule after coming in to force of the Act is in a better position to adapt the Act to special circumstances . Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and Regulation made by reason of the specific power conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. Thus there is no room left to say that in the instant case the impugned Notification is ultra vires. The said Notification does not transgress any of the provisions of the parent Act. It also does not take away anything that it could not have taken away. That apart it does not supplant anything on the contrary it is in sacrosanct there with the statute. The Apex Court in the aforesaid case further has held in Para 11 that the question whether any particular legislation suffers from excessive delegation has to be decided having regard to the subject-matter the scheme the provisions of the Statutes including its preamble and the facts and circumstances in the background of which the Statue is enacted. It was further held by Their Lordships that it is well settled in law that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions one of which would make it valid and other invalid the Courts must adopt that construction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires.(29.) IT should be borne in the mind that the Act is applicable to the industries or undertakings which finds place in the Schedule and for the rest industries or undertakings the another Statute i. e. Industrial Disputes Act 1947 is applicable and therefore no hardship could be caused to the employees who are serving in the industries which is being carried on by any Department of the State Government and for this reason the reliance placed by the learned Counsel for the petitioners in the case of In Re The Special Courts Bill 1978 AIR 1979 SC 478 and The State of Madras v. KG. Rao AIR 1952 SC 196 are not applicable.(30.) IN this view of the matter in our considered opinion the impugned Notification is not ultra vires from any angle and we hold that the same is ultra vires.(31.) IN the result the petitions are hereby dismissed without any order as to costs.