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State of Gujarat and Ors. vs. Shri.

Mills Ltd. Ahmedabad and Ors.
Decided on 26th March 1974

In the Supreme Court of India

Civil Appellate Jurisdiction

Case No.
Civil Appeal Nos. 1931 to 1933 and 2271 of 1968 and 492 to 512 and 1114 to 1929 of 1969

State of Gujarat and Ors.

Shri. Ambica Mills Ltd., Ahmedabad and Ors.

Decided on
26 March 1974

N. Ray, (C.J.); Alagiriswami; R. Khanna; K. Mathew; V. Chandrachud


The present case deals with the application of the fundamental rights of the Constitution of India.
Indians were guaranteed with fundamental rights by the Constitution of India but there was a
question on whether the non-citizens are entitled to enjoy these rights. The Hon’ble Supreme Court
held that the non-citizens are not having the fundamental rights and therefore they are not allowed
to take advantage of the voidness of the law which is inconsistent with Part III of the Constitution.
Therefore, the Apex Court again confirmed that the existing laws are applicable to non-citizens and
no law can be held void in rem or for all purposes.

Background of the Statute

The State of Bombay in 1953 has enacted the Act for the purpose of welfare of the employees
which directs the formation of the labour welfare fund including the unpaid accumulations from
the employees. The fund is said to be vested with the Board of Trustees and governed by them
depending upon the provisions of the Act. But the Act was questioned before the Hon’ble Supreme
Court of India in Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and Ors.
[1958] S.C.R. 1122 in which the provisions were held to be unconstitutional and therefore the
amendment Act was made to rectify the errors pointed out by the Apex Court.

The State of Bombay was bifurcated into the states of Gujarat and Maharashtra in 1960. With the
intention to apply the Labour Welfare Act, the Amendment was made in 1961 for the application
of the Act in Gujarat and also enacted certain provisions with retrospective effect. § 3 of the Act
now allow the Labour Welfare Fund will comprise of the unpaid accumulations and the agencies
mentioned under the Act will be having the power to collect the fund. The sums so collected by the
agencies will be audited and will be given to the Board which will maintain a separate account and
utilize it for the other provisions of the Act.

The unpaid accumulations deposited with the Board will be considered as the abandoned property
and the liability of the employer will be exempted to the extent of payment of such sum. But it will
not release the employer from the liability for the amount which he has not paid. After obtaining
the amount, the Board will put forth a public notice regarding the amount so received on notice
board or any conspicuous place (also published in the Official Gazette) so that the employees can
put forth their claims before the board which will continue for the period of three years. When a
claim has been made within four years of the date when the notice was first affixed, the Board will
direct the claim to authority established under §15 of the Payment of Wages Act, 1936 and the
concerned authority will decide the case. If there is no claim made within the stipulated time, the
funds will be considered as bona vacantia and the concerned sums without further assurance will
be made the part of the welfare fund.

The second Amendment Act was made by the Gujarat State Legislature which mentioned that the
unpaid accumulations for which separate accounts have not been created or spent before 1961 will
be deemed to be not collected under §6A (13) of the Act.

Judicial Background

In Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay, the Apex Court held that
the provisions which direct the employers to pay the unpaid accumulations to the board by the
employers. This will not release the employers from the liability to pay to the employees which is
against Article 19(1) (f) of the Constitution of India. The State contended that the unpaid
accumulations must be considered as the abandoned property but the court rejected the plea that
not eliminating rights will not make the property to be abandoned.

After the First Amendment Act, 1961, the same Act was questioned before the Hon’ble High Court
of Bombay which declared the provisions to be violative of fundamental rights and held the sections
under the Act to be unconstitutional. Then through Civil Appeals, the case reached the Apex court
of India where the Court held that the impugned Sections are valid based on the following

Constitution and Statutory Provisions

• § 3, 6A and 7 of the Bombay Labour Welfare Fund Act, 1953

• 13 of the Bombay Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961

Rules 3 and 4 of the Bombay Labour Welfare Fund Rules, 1953

Article 14, 19(1) (f) of Constitution of India, 1950.


All the civil appeals mentioned in this case deal with the same set of facts and thus the Hon’ble
Supreme Court decided to discuss and render judgment on one of the appeals Civil Appeal No.
2271 of 1968. Shri Ambica Mills is a company registered under the Companies Act which has
filed the petition before the Hon’ble High Court of Gujarat to declare §§ 3, 6A and 7 of the Bombay
Labour Welfare Fund Act, 1953 (Act), § 13 of the Bombay Labour Welfare Fund (Gujarat
Extension and Amendment) Act, 1961 (Amendment Act) and Rules 3 and 4 of the Bombay Labour
Welfare Fund Rules, 1953 (Labour Welfare Rules) to be unconstitutional and prayed before the
Hon’ble court to issue the writ of mandamus and desist the state from enforcing the notice dated
August 2, 1962 to pay the unpaid accumulations.

Procedural history

The Hon’ble High court of Bombay decided that § 3(1) is invalid to the extent that it deals with
unpaid accumulations mentioned under § 3(2) (b). It is also held that §§ 3(4) and 6A of the Act and
rules 3 and 4 of the Labour Welfare rules are unconstitutional. Then the sections were held to be
valid by the Hon’ble Supreme Court of India.
Issues which were in Challenge

1. Whether the first respondent was competent to challenge the validity of the impugned
provisions on the basis that they violated the fundamental right under Article 19(1) (f) of citizen-
employers or employees and thus show that the law was void and non-existent and, therefore, the
action taken against it was bad?

2. Whether the definition of ‘establishment’ in Section 2(4) violated the fundamental right of the
respondent under Article 14 and the impugned provisions were void for that reason?

3. Whether, on that assumption, the first respondent could claim that the law was void as against
the non-citizen employers or employees under Article 13(2) and further contend that the non-
citizen employers have been deprived of their property without the authority of law, as, ex
hypothesi a void law is a nullity.


Contentions of the Appellant

• The differentiation between factories and commercial establishments employing less

than 50 persons was made for the reason that the turnover of labour is more in factories
than in commercial establishments other than factories on account of the fact that
industrial labour frequently changes employment for a variety of reasons.

Contentions of the Respondent

• The impugned provisions violated the fundamental rights of the citizens- employers and
employees under Article 19(1)(f) and therefore the provisions were void under Article
13(2) of the Constitution of India.
• Since there was no law, the notice that was issued by the Welfare Commissioner is not
held to be valid.
• There was huge discrimination in the definition of “establishment” under § 2(4) of the
Act and the definition permeates through the entire Act which forms an integral part of
every provision of the Act and thus all the impugned provisions must be held to be
violative of Article 14 of Constitution of India.
• There is no intelligible differentia in the definition of “establishment” under § 2(4) of
the Act.
• The establishments that have been left out in the definition has international nexus with
the object of the Act and thus it affects the rights and liabilities of the employers and
violative of Article 14.
• It is said that the “establishments” defined is synonymous to “Factories” definition
under the Factories Act. Moreover the classification is unreasonable as the factories
with less than 50 employees and government establishments are left out whereas the
trams and motor omnibus establishments are included, which is unreasonable.
• The amount of unpaid accumulation either meager or huge must be submitted to Board
and there must be no differentiation in treatment of the establishments.


Ratio Decidendi

• The Sovereign has the prerogative right to appropriate bona vacantia and here the
abandoned property i.e., the unpaid accumulations can be appropriated by the State and
it cannot be considered as a cheat.
• The money which is due by the employer to the employee will be considered as the
property for both. Though the dues are money, the state is having the power to
appropriate the property and distribute it to the employees who have claims.
• On payment of certain sum to the Board, the employer will lose the liability to pay the
concerned amount to the employee. Mere recognition of the State as the debtor will not
create an unconstitutional burden on the side of employees or will deprive them of the
• Moreover, the employee will lose the right to claim the property if he/ she makes the
claim within 7 years. The court held that the time given as limitation is reasonable. The
various modes of notice under § 6A of the Act are sufficient to give reasonable
information to the employees to come forward and claim the amount if they want to.
• The court again affirmed that corporation cannot be considered as a citizen for the
purpose of Article 19. Thus the first respondent is having all the right to dispose of the
property as he deems fit as that of the ordinary citizen.
• The court held that even the pre-existing laws are applicable to the non-citizens though
the laws are held void as it violates the fundamental rights of the citizens of India. The
pre-existing laws are operative with respect to non-citizens and the doctrine of eclipse
is applicable only in case of pre-existing laws but not the post-constitutional laws.
• Any law will be void only to the extent of inconsistency but will remain applicable to
inchoate rights and liabilities. Moreover it only stays in dormant state in case of citizens.
• Article 13(1) and 13(2) differentiates between the post and pre constitutional laws which
highlight the need for distinction between the citizens and non-citizens. With the advent
of the constitution, special rights were given to the citizens, which render them a
protection against any unconstitutional post-constitution laws. (the law cannot be held
void in rem)
• There are many fundamental rights and they inhere in diverse types of persons,
minorities or denominations. Thus the laws which are against one set of group may not
be void for others.
• Article 13 imposes the injunction on the state while making laws, no law can be made
against the fundamental rights.
• The non-citizens are given the right to approach the courts for infringement of their right
to property. But the non-citizens are not allowed to question the valid laws passed by
the competent legislature by taking the plea that their right to property is infringed. The
non-citizens cannot take advantage of the voidness of law.
• The citizens and non-citizens cannot be placed on the same footing as the citizens are
provided with the fundamental rights whereas the non-citizens are not vested with
fundamental rights under the Constitution of India. Thus the principle of Equality before
Law is not affected.
• The doctrine of reasonable classification is applied here and the similar things are placed
under the same category.
• The classification is said to be under-inclusive when the classification burden people by
not including the people who are entitle to get benefitted whereas the classification is
said to be over-inclusive when the classification includes a lot of people who are not
equals but are potential enough to cause mischief. Here the classification of not
including the establishments with less than 50 people seem to be unreasonable but it is
legitimate as it is in consonance with the long term goal of the legislature to reshape the
society and eliminate the discrimination.
• Size is an index to the evil at which the law is directed, discriminations between the
large and small are permissible, and it is also permissible for reform to take one step at
a time, addressing itself to the phase of the problem which seems most acute to the
legislative mind.
• Pertaining to the facts of the case, the exclusion of the factories owned below 50
members, governmental establishments show that the accumulations obtained from
them is very low and also a very few governmental institutions are working with such
conditions. Moreover, the inclusion of tramways and motor omnibus is supported by
the possibility of more sums from such establishments. It is well supported by the
affidavit submitted by the Transport Ministry which explains the practical difficulty.
• If it is an under-inclusive clause, the people who are left out can be included whereas,
in an over-inclusive clause, the people can be severed from such classification by the
application of Doctrine of Severability. Thus the court is having the power to make an
unreasonable clause reasonable giving no option for invalidity of the impugned

Obiter Dicta

• A person is precluded from questioning the constitutional validity of the statute unless
and until it affects him or his group and he/ she cannot invoke a governmental action
for the rights of others.
• The law which is not having the legislative competence is nullity but the law which is
against the constitutionality is not null but merely unenforceable.
• The law might be ‘still-born’ so far as the persons, entities or denominations whose
fundamental rights are taken away or abridged, but there is no reason why the law
should be void or ‘still-born’ as against those who have no fundamental right.
• There is nothing strange in the notion of a legislature having no inherent legislative
capacity or power to take away or abridge by a law the fundamental rights conferred on
citizens and yet having legislative power to pass the same law in respect of non-citizens
who have no such fundamental rights to be taken away or abridged. In other words, the
legislative incapacity subject wise with reference to Articles 245 and 246 in this context
would be the taking away or abridging by law the fundamental rights under Article 19
of citizens.
• The equal protection of laws is the pledge of the courts. The laws may vary but the
function of the laws is to go against inequality. In such a paradox the courts have not
denied the principle of equality or denied the legislative right to classify. The courts
take a middle stand by adopting the doctrine of reasonable classification.
• The law must either eliminate public mischief or achieve some positive public good.
• The legislature cannot be required or cannot force the administrative agencies to carry
out tasks on a large scale.
• Administrative convenience must be given in deciding the classification as reasonable
or not.
• The Courts attitude cannot be that the state either has to regulate all businesses, or even
all related businesses, and in the same way, or, not at all. An effort to strike at a
particular economic evil could not be hindered by the necessity of carrying in its wake
a train of vexatious, troublesome and expensive regulations covering the whole range
of connected or similar enterprise.
• The view on whether the classification is reasonable or unreasonable depends upon the
judicial approach. With more diversity, more problems will arise and it is up to the
legislature to make the concerned classification and laws. The position of America is
different as due importance is given to human and civil rights where the equal protection
clause is followed. Moreover, the independence of the legislature who determines the
need of the society and the reformation needed in the territory cannot be restricted by
strict and restrictive regulations.


This case sets an example for proper analysis of factual matrix, legal concepts and practical
difficulty in applying the observed legal principles. The Hon’ble Court declared that the
classification is not a perfect one but due emphasis was given to the practical difficulty in collection
of unpaid accumulations. It is also pertinent to note that clause though has classification which is
over-inclusive and under-inclusive; the court held that this mere deviance cannot be allowed to
intervene with the administrative actions. It is up to the legislature to determine to what extent the
reformation must be allowed and courts cannot enforce the strict and repressive regulations without
considering the practical implementation of the laws and the judgment. Detailed discussion is made
regarding the relation between the fundamental rights and the non-citizens and the court held that
since the non-citizens are not given the fundamental rights, they are not allowed to question a valid
law with legislative competence.