UNION OF INDIA ETC. VERSUS THE UNITED PLANTERS ASSOCIATION OF SOUTHERN INDIA ETC. ETC. & ORS

UNION OF INDIA ETC. VERSUS THE UNITED PLANTERS ASSOCIATION OF SOUTHERN INDIA ETC. ETC. & ORS


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NOS. 884-895 OF 2016
UNION OF INDIA ETC. ……PETITIONER (S)
 VERSUS
THE UNITED PLANTERS ASSOCIATION
OF SOUTHERN INDIA ETC. ETC. & ORS. …… RESPONDENT(S)
WITH
TRANSFER PETITION (CIVIL) NO. 683 OF 2019
WITH
TRANSFER PETITION (CIVIL) NOS. 1456-1461 OF 2016
WITH
TRANSFER PETITION (CIVIL) NOS. 1473-1531 OF 2016
WITH
TRANSFER PETITION (CIVIL) NOS. 590-598 OF 2017
WITH
TRANSFER PETITION (CIVIL) NOS. 480-481 OF 2017
WITH
TRANSFER PETITION (CIVIL) NOS. 760-789 OF 2017
WITH
TRANSFER PETITION (CIVIL) NOS. 599-604 OF 2017
WITH
TRANSFER PETITION (CIVIL) NOS. 2127-2135 OF 2017
WITH
TRANSFER PETITION (CIVIL) NOS. 1263-1269 OF 2017
1
WITH
TRANSFER PETITION (CIVIL) NOS. 1253-1255 OF 2017
WITH
TRANSFER PETITION (CIVIL) NO. 2425 OF 2017
WITH
TRANSFER PETITION (CIVIL) NO. 659 OF 2018
WITH
TRANSFER PETITION (CIVIL) NO. 856 OF 2018
WITH
TRANSFER PETITION (CIVIL) NO. 1237 OF 2018
WITH
TRANSFER PETITION (CIVIL) NO. 1954 OF 2018
WITH
TRANSFER PETITION (CIVIL) NO. 218 OF 2019
O R D E R
DINESH MAHESHWARI, J.
1. By way of these petitions under Article 139A(1) read with Order XL
of the Supreme Court Rules, 2013, the petitioners, led by the Union of
India, have prayed for transfer of various writ petitions, pending before
different High Courts challenging the constitutional validity of the Payment
of Bonus (Amendment) Act, 2015 [being Act No. 6 of 2016]1
, to this Court.
2. As per the record, though the first set of transfer petitions in this
batch, being T.P.(C) Nos. 884-895 of 2016, was entertained on
01.07.2016 by issuing notices but, in the next set of petitions, being T.P.
1 Hereinafter also referred to as ‘the Amendment Act of 2015’.
2
(C) Nos. 1456-1461 of 2016, while issuing notices on 26.09.2016, further
proceedings in the related writ petitions pending before the Allahabad
High Court were stayed. Thereafter, from time to time and until
06.08.2018, other transfer petitions comprising this batch were
entertained and similar interim orders were passed, staying further
proceedings in the writ petitions pending before the respective High
Courts. In the next two matters, being T.P.(C) No. 1954 of 2018 and T.P.
(C) No. 218 of 2019, notices were issued respectively on 26.11.2018 and
08.02.2019 but without any specific stay order. Thereafter, on 08.04.2019,
T.P.(C) No. 683 of 2019 was entertained and while issuing notices, again,
further proceedings in the subject writ petition before the High Court
concerned were stayed.
3. It may be noticed that in T.P.(C) Nos. 1490-1491 of 2016, the
respondent No. 1 Tata Motors Ltd. has stated no objection to the transfer
of its case to this Court, being W.P.(C) Nos. 11112-13 of 2016 pending
before the High Court of Karnataka. Similarly, in T.P.(C) Nos. 590-598 of
2017, one of the respondents, the State of Madhya Pradesh, has stated
no objection if the subject writ petition pending before the High Court of
Madhya Pradesh is transferred to this Court. Similar has been the stand
of the State of Madhya Pradesh in T.P.(C) Nos. 760-789 of 2017 and of
the State of Bihar in T.P.(C) No. 856 of 2018. The State of Himachal
Pradesh has also not stated any specific objection in relation to the prayer
for transfer in T.P.(C) No. 1237 of 2018. Similarly, the respondent Nos. 1
3
and 2 in T.P.(C) Nos. 885-886 of 2016, being Karnataka Employers
Association and Sai Security Printers Pvt. Ltd., have also stated no
objection if W.P.(C) No. 5311 of 2016 pending before the High Court of
Karnataka is transferred to this Court. However, several of the other
respondents in this batch of matters have strongly opposed the prayer for
transfer of the respective writ petitions to this Court on various grounds,
as shall be noticed a little later.
4. Shorn of unnecessary details, the aspects relevant for the present
purpose are as follows:
4.1. By the said Amendment Act of 2015, two major changes were
introduced to the Payment of Bonus Act, 19652
: one being the
amendment of clause (13) of Section 2, raising the salary limit from Rs.
10,000/- to Rs. 21,000/- per month for the purpose of coverage under the
Act; and the other being raising the wage ceiling for calculating the bonus
under Section 12 from Rs. 3,500/- to Rs. 7,000/- per month or the
minimum wages for the scheduled employment as fixed by the
appropriate Government, whichever be the higher. Further, by way of
Explanation to Section 12, it was clarified that the expression “scheduled
employment” shall have the same meaning as assigned to it in clause (g)
of Section 2 of the Minimum Wages Act, 1948. These amendments were
given retrospective effect in Section 1 of the Amendment Act of 2015 by
providing that it shall be deemed to have come into force on 01.04.2014.
2 Hereinafter also referred to as ‘the Act of 1965’ or simply as ‘the Act’.
4
4.2. The said amended provisions, i.e., clause (13) of Section 2 as
also Section 12 of the Act of 1965, with necessary explanatory notes, are
extracted as under: -
“2. Definitions. – In this Act, unless the context otherwise
requires,-
*** *** ***
(13) “employee” means any person (other than an apprentice)
employed on a salary or wage not exceeding [twenty-one
thousand rupees]3
 per mensem in any industry to do any skilled or
unskilled manual, supervisory, managerial, administrative,
technical or clerical work for hire or reward, whether the terms of
employment be express or implied;”
“12. Calculation of bonus with respect to certain employees.—
Where the salary or wage of an employee exceeds [seven
thousand rupees or the minimum wage for the scheduled
employment, as fixed by the appropriate Government, whichever
is higher]4
 per mensem, the bonus payable to such employee
under section 10 or, as the case may be, under section 11, shall
be calculated as if his salary or wage were [seven thousand
rupees or the minimum wage for the scheduled employment, as
fixed by the appropriate Government, whichever is higher]5
 per
mensem.
[Explanation. —For the purposes of this section, the expression
“scheduled employment” shall have the same meaning as
assigned to it in clause (g) of section 2 of the Minimum Wages Act,
1948.]6
4.3. The said amendments have been challenged in various writ
petitions pending before different High Courts mainly on two counts: first,
against the requirement of payment of bonus as per the amended
provisions with retrospective effect from the year 2014-15; and secondly,
against the validity of linkage to the minimum wages in regard to the
calculation of bonus.
3 Substituted for “ten thousand rupees” by Act 6 of 2016, S. 2 (w.r.e.f. 01.04.2014).
4 Substituted for “three thousand and five hundred rupees” by Act 6 of 2016,
S. 3(i) (w.r.e.f. 01-04-2014).
5 Same as footnote 4 ibid.
6 Inserted by Act 6 of 2016, S. 3(ii) (w.r.e.f. 01-04-2014).
5
4.4. As per the facts projected before us, the petitions filed in various
High Courts in challenge to the aforesaid Amendment Act of 2015 have
been entertained with different interim orders in some of the petitions
inasmuch as some of the High Courts have directed that the amendment
shall take effect only from the financial year 2015-16 whereas one High
Court has directed to implement the same from the financial year 2016-
17. Another High Court has directed that no coercive action shall be taken
against the writ petitioners.
4.5. As noticed, in the wake of challenge to the Amendment Act of
2015 in different High Courts; and the respective High Courts having
passed different interim orders, the petitioners led by the Union of India
seek transfer of all the pending writ petitions to this Court. Some of the
respondents in these petitions have filed their reply, either opposing or
supporting these petitions, as per their respective stands.
5. Learned counsel for the parties have also filed their respective
written submissions and the learned Additional Solicitor General has, in
terms of our order dated 22.11.2021, filed a composite convenience
compilation of the respective submissions, projecting divergent
viewpoints.
5.1. We have heard Mr. K.M. Nataraj, learned Additional Solicitor
General for the petitioners; and Mr. Abhijit Chatterjee, Mr. K. Kasturi, Ms.
Suruchii Aggarwal and Mr. Gopal Sankaranarayanan, learned senior
6
counsel as also Mr. Rajiv Tyagi and Mr. R. Anand Padmanabhan, learned
counsel for the respective respondents at length.
5.2. Having regard to the short question before us in this batch of
transfer petitions, it does not appear necessary to expand or elongate this
order with reference to a wide variety of submissions made before us;
suffice it would be to take note of the principal and material submissions
in support of the prayer for transfer of the writ petitions to this Court, or in
opposition thereto, or in support of the alternative proposition of
transferring the writ petitions to one High Court.
6. Mr. K.M. Nataraj, the learned ASG has pointed out that the said
issues, relating to the retrospective operation of the amended provisions
and linkage of calculation of bonus with minimum wages for the
scheduled employment, are forming the subject-matter of more than 140
writ petitions filed across the country in as many as 18 High Courts. The
learned ASG would submit that with large number of petitions involving
similar and akin issues being taken up in different High Courts, there is
every likelihood of conflicting views being expressed by different High
Courts, which may lead to an undesirable situation. In the given
circumstances, according to the learned ASG, withdrawing all such writ
petitions to this Court for analogous hearing would be in the best interest
of the parties as also for maintaining consistency in operation of the
statute. As regards a line of submissions by some of the parties that, if at
all, the matters may be transferred to one High Court, the learned ASG
7
has submitted that such a course may not serve the best interest of the
parties; and would cause hardship to the parties whose petitions are
pending before other High Courts and who may not be able to effectively
contest the matter before any High Court other than their jurisdictional
High Court.
7. Per contra, the learned senior counsel Mr. Abhijit Chatterjee
appearing for contesting respondents, including in T.P.(C) No. 786 of
2017, has submitted that if the contention regarding the possibility of
conflicting decisions by different High Courts is accepted, it would
practically mean that every challenge to the validity of a central statute
shall have to be decided by this Court, which is not the mandate and
framework of the constitutional scheme. According to the learned counsel,
mere possibility of divergence of views or interpretations cannot be a
ground for transfer of all the proceedings to this Court. The learned
counsel has strongly relied upon a 3-Judge Bench decision of this Court
in the case of Union of India v. M/s Cummins Technologies India Pvt.
Ltd. & Ors. Etc.: Transfer Petition (Civil) Nos. 1481-1482 of 2021,
decided on 20.09.2021, to submit that in the said case, the prayer for
transfer was declined by this Court even though it was argued on behalf
of the petitioner-Union of India that the same issue pending in various
High Courts was having implications on a large number of matters and
also ramifications of huge amount payable under a central statute.
8
7.1. It has also been submitted that the Union of India, having a huge
establishment of its law officers and legal advisors will not face any
difficulty in conducting the writ petitions in different High Courts whereas
transfer of writ petitions to this Court may cause difficulties to various
litigants located at different places.
7.2. The learned senior counsel has also argued that the proposition of
consolidation of all the writ petitions before one High Court also deserves
not to be accepted because no one High Court would be convenient to
the writ petitioners who have filed their respective petitions in their
jurisdictional High Courts. The learned counsel, however, submitted in the
alternative that if at all the petitions are to be consolidated before one
High Court, the same may be transferred for analogous hearing before
the Calcutta High Court, where the related writ petitions have already
appeared in the cause list for hearing and disposal. The learned counsel
has referred to the case of Institute of Chartered Accountants of India
v. Southern Petrochemical Industries Corporation Limited and Anr.:
(2007) 15 SCC 649 wherein this Court adopted the course of transferring
various writ petitions pending before different High Courts, and involving
similar issues relating to the constitutional validity of Para 33 of
Accounting Standards 22 framed by the Institute of Chartered
Accountants of India, to the Calcutta High Court, where the petitions were
ready for hearing.
9
8. Ms. Suruchii Aggarwal, the learned senior counsel appearing for
the contesting respondents in T.P.(C) No. 1954 of 2018 has similarly
opposed the prayer for transfer with the additional submission that in the
event of transfer of matters to this Court, the parties will lose their right of
appeal against the final judgment of the High Court. Apart from the
decision in M/s Cummins Technologies India Pvt. Ltd. (supra), the
learned counsel has also referred to the decision of this Court in
Lunawat Construction Company v. Union of India & Anr.: (2019) 5
SCC 467.
9. Yet further, similar nature submissions have been made by Mr.
Gopal Sankaranarayanan, the learned senior counsel for the respondent
Nos. 1 and 3, being Bowreah Jute Mills Private Limited and Indian Jute
Mills Association in T.P.(C) No. 892 of 2016. It has additionally been
submitted that the issues being adjudicated by the Calcutta High Court in
the petition filed by them are not merely confined to the broader issues
mentioned in the transfer petitions but there are other factual issues,
specific and unique to their case, which cannot be clubbed together with
any other case. Further detailed submissions have been made as regards
the status of these contesting respondents and the operation of law as
regards the jute industry; and the impact of impugned amendments on
this industry has also been highlighted which need not be dilated in this
order. However, the emphasis in these submissions had been that the writ
10
petition of these respondents, being of its own peculiar nature, deserves
not to be transferred.
10. As indicated hereinbefore, more or less similar submissions have
been made by the learned senior counsel Mr. K. Kasturi as also by the
other learned counsel for the respondents, which are not being repeated
for the sake of brevity. We may, however, take note of an additional
viewpoint projected by Mr. Rajiv Tyagi, learned counsel for the contesting
respondent in T.P.(C) No. 683 of 2019 that with the linkage of qualifying
wages to minimum wages in terms of the amended Section 12, the wages
prescribed by different States shall have different implications and in this
view of the matter too, it would be appropriate if the pending writ petitions
are considered by the respective High Courts in light of the particular
provisions operating in each State relating to minimum wages rather than
bringing all such cases before this Court as a Court of first instance.
11. Having given thoughtful consideration to the rival submissions and
having examined the record, even when we agree with the submissions
that the writ petitions related with this batch of matters might carry
substantially the same questions of law concerning the constitutional
validity of the Payment of Bonus (Amendment) Act, 2015 but, for a variety
of other relevant reasons, we are disinclined to transfer these matters in
this Court or even to one High Court.
12. In the first place, we feel that in the scheme of the Act of 1965 and
in relation to the questioned amendments, variance in some of the
11
questions and some of the factual aspects is likely to occur because of
the innate role of the appropriate Government in the ultimate calculation
of bonus with respect to certain employees in terms of the amended
Section 12 of the Act of 1965; and such an appropriate Government may
be the Central Government or may be the Government of the particular
State in terms of the definition contained in clause (5) of Section 2 of the
Act of 1965 that reads as under:-
“(5) “appropriate Government” means—
(i) in relation to an establishment in respect of which the
appropriate Government under the Industrial Disputes Act,
1947 (14 of 1947), is the Central Government, the Central
Government;
(ii) in relation to any other establishment, the Government of
the State in which that other establishment is situate;”
12.1. Thus, when the wage ceiling in terms of the amended Section 12
has its correlation also with the minimum wages for the scheduled
employment as fixed by the appropriate Government, the decision on the
questions being raised in the respective writ petitions, may have to be
addressed with reference to the relevant decision of the appropriate
Government, depending on the nature of establishment; and that may
include the particular State Government too.
12.2. Moreover, the role of the appropriate Government even as regards
the power of exemption is seen in Section 36 of the Act of 1965 and in
this view of the matter too, in our view, the decision of individual writ
petitions by the jurisdictional High Courts shall be in the best interest of
the respective parties. Section 36 of the Act of 1965 reads as under: -
12
“36. Power of exemption. – If the appropriate Government,
having regard to the financial position and other relevant
circumstances of any establishment or class of establishments, is
of opinion that it will not be in public interest to apply all or any of
the provisions of this Act thereto, it may, by notification in the
Official Gazette, exempt for such period as may be specified
therein and subject to such conditions as it may think fit to impose,
such establishment or class of establishments from all or any of
the provisions of this Act.”
13. Apart from the above, having regard to the subject-matter and the
variety of questions likely to arise in the matter, it does appear appropriate
to have the benefit of the views of the jurisdictional High Courts before the
questions of law are taken up for consideration in this Court, if occasion
so arises; and such a course appears better serving the cause of justice,
including protecting the right of seeking judicial review after the decision
of the Court of first instance.
13.1. In Lunawat Construction Company (supra), this Court
considered it proper to have the benefit of findings of the High Court in
relation to the subject-matter and hence, conversely sent the writ petitions
pending in this Court to the High Court with other transferred cases while
observing as under:-
“By filing Writ Petition (C) No. 96 of 2011 under Article 32 of the
Constitution of India, the petitioner therein has challenged the
constitutional validity of the Ancient Monuments and
Archaeological Sites and Remains (Amendment and Validation)
Act, 2010 (Annexure P-15). In connected writ petition and the
transferred case, the petitioners have claimed similar reliefs, which
are claimed in the lead Writ Petition No. 96 of 2011.
 2. Having heard the learned counsel for the parties and on
perusal of the record of the case, we deem it just and proper to
send these writ petitions and the transferred case to the High
Court of Bombay for their disposal on merits in accordance with
law.
13
 3. In our view, no prejudice is likely to cause to the parties, if
these writ petitions and the transferred case are sent to the High
Court for their hearing on merits of the controversy instead of
deciding the issue by this Court in the first instance. On the other
hand, we are of the view that once the High Court renders its
decision, this Court will have the benefit of the findings of the High
Court, if occasion arises.
 4. In view of the foregoing discussion, both the writ petitions and
the transferred case, WPs (C) Nos. 96 of 2011, 36 of 2012 and TC
(C) No. 30 of 2010 are sent to the High Court for their disposal on
merits in accordance with law. We request the High Court to
decide the writ petitions expeditiously.”
14. Apart from the above, it is noticeable from the latest decision of
the 3-Judge Bench in M/s Cummins Technologies India Pvt. Ltd.
(supra) that even when the cases were indicated to be pending in
different High Courts involving similar issues concerning constitutional
validity of Section 16(2)(c) of the Central Goods and Services Tax Act,
2017 and it was submitted that the issues might have implication on a
number of matters pending across the country with ramification of huge
amount payable under the said Act, this Court expressed disinclination to
entertain the transfer petitions for the reason that various High Courts
were already seized of the matter and it was also noticed that before one
High Court, the pleadings had been exchanged. Therefore, while
declining the prayer for transfer, this Court expected expeditious disposal
of the pending petitions before the respective High Courts. The order so
passed by this Court on 20.09.2021 reads as under: -
“The Court is convened through Video Conferencing.
Heard Mr. Tushar Mehta, learned Solicitor General, Mr.
S. V. Raju, learned Additional Solicitor General appearing for the
Union of India, learned counsel appearing for Respondent No. 1,
who is on caveat, and carefully perused the record.
14
These transfer petitions have been filed by the Union of India
under Article 139A read with Article 142 of the
Constitution of India seeking transfer of two Writ Petitions to this
Court, i.e., (i) Writ Petition No. 9443/2020 titled 'M/s. Cummins
Technologies vs Union of India' pending before the High Court of
Madhya Pradesh at Indore and (ii) Writ Petition No.7767 /
2020 titled 'M/s. SPL Infrastructure Private Limited v. Assistant
Commissioner of State Tax, Narasannapeta and Ors.' pending
before the High Court of Andhra Prdesh at Amaravati. In
both these Writ Petitions, the constitutional validity of
Section 16(2)(c) of the Central Goods and Services Tax Act,
2017 has been challenged.
In addition to the aforementioned two Writ Petitions, we are
informed that the constitutional validity of Section 16(2)(c)
of the CGST Act has been challenged in 34 other writ petitions,
which are stated to be pending across nine High Courts in the
country.
According to learned Solicitor General, since the issue
has implication on a number of matters pending across the country
and also ramifications of huge amounts payable under the said
Act, it would be appropriate if this Court hears all the matters.
Even though learned Solicitor General insisted for transfer of
cases pending before various High Courts to this Court, we are not
inclined to entertain these transfer petitions, for the reason that
various High Courts are already seized of the matters. In
particular, in the matter before the High Court of M.P.,
Indore Bench, counter affidavit is already stated to have been
filed.
In view of the above, we request the High Court of
Madhya Pradesh, Indore Bench to dispose of the Writ Petition
No.9443/2020, pending adjudication before it, as early as possible
and preferably within a period of two months’ time from the date of
communication of this Order.
Parties are at liberty to advance their respective arguments
before the High Court of Madhya Pradesh, Indore Bench.
So far as other Writ Petitions, which are pending
before various High Courts, it is open for the parties to bring this
Order to the notice of the concerned High Courts and
seek expeditious disposal of their cases.
The Transfer Petitions are disposed of in the aforestated terms.
Pending applications, if any, shall also stand disposed of.”
15
15. We need not multiply the reference to various other orders passed
by this Court relating to the prayer for transfer because, ultimately, the
decision to transfer or not, to this Court or to one High Court, has been
taken by this Court in exercise of its jurisdiction under Article 139A of the
Constitution of India with reference to the given set of facts and
circumstances. No hard and fast rule or any structured formula is
provided nor appears desirable; a comprehensive view of all the facts and
relevant surrounding factors is the best guiding light for exercise of this
jurisdiction under Article 139A of the Constitution of India.
16. In the present set of facts and circumstances, for what has been
noticed and discussed hereinabove, we are clearly of the view that
transfer of the pending writ petitions from the respective High Courts is
not called for. The likelihood of divergence of views, looking to the
framework of the statute itself, cannot be a ground for transfer. Equally,
there appears no reason to transfer the matters to any one High Court;
rather it appears just and proper that the petitions in the jurisdictional High
Courts are decided with reference to their own factual background and
the law applicable. Hence, we do not consider it necessary to deal with
the cases cited in support of the proposition for transfer of the matters to
any one High Court, like the decision in the case of Institute of
Chartered Accountants of India (supra).
17. Accordingly, the prayer for transfer of the subject petitions is
declined and all the interim stay orders are vacated while providing that it
16
shall be permissible for the parties to request the respective High Courts
for expeditious hearing and disposal of the pending writ petitions. For that
matter, we would also request the respective High Courts to proceed with
the matters expeditiously, while assigning them reasonable priority.
…....……………………. J.
(DINESH MAHESHWARI)
…....…………………….. J.
(VIKRAM NATH)
NEW DELHI;
JULY 11, 2022.
17

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