A.S. Aguiar, J.
1. The petitioners are a Union registeredunder the Indian Trade Unions Act, 1926 andrecognized by the Government of India. TheUnion, at the time of filing the petition,consisted of 450 members from Grade-C & Grade-Dcategory i.e. equivalent to Class-III andClass-IV civilian employees working in25-Equipment Depot, Air Force Station, SouthDeolali. The total strength of the staff at thesaid unit was about 700. The group-C and group-Demployees are the industrial and non-industrialworkers. Group C cadre consists of carpenters,clerks, motor drivers, painters, stores keepersetc. Group-D cadre consists of safaiwalas,watchman, cooks etc.
2. The petitioners state that respondentNo. 4 was and is deducting from the salaries andwages paid to the members of the said petitionerUnion and other civilian working in the saidequipment department a sum of Rs. 50/- per month inrespect of Group-C worker and Rs. 30/- per monthin respect of group-D worker under Section 4 ofthe Maharashtra State Tax on Professions Trades,Callings and Employments Act, 1975 (MaharashtraAct No. 16 of 1975) (herein after referred to as'the said Act').
3. It is the contention of the petitionerUnion that its members are not liable for anyamount being deducted from their salaries andwages towards the tax under the said Act. It iscontended that under Section 27(a) of the saidAct members of armed forces of the said Unionserving in any part of the state are exemptedfrom payment of the said Tax. It is pointed outby the petitioners that similar enactments existsin the State of West Bengal, Karnataka and AndhraPradesh but in no other states, other than thesaid 4 States, viz. Maharashtra, Wet Bengal,Karnataka and Andhra Pradesh, there is any taxlevied on professions, trades, callings oremployment. It is the contention of thepetitioner that employees in the All Indiaservices are not required to pay any tax on theiremployment nor are the petitioners liable to paythe same when they are posted on transfer out ofMaharashtra. It is contended, relying on thedecision of this Honourable Court in 1992Maharashtra Law Journal 316, that Civiliandefence personnel who can be ordered to renderfield services and follow army in certainsituations mainly war time, are exempt from theliability to pay profession tax under theprovisions of the said Act in view of theprovisions regarding exemption under Section27-A.
3. It is pointed out that despite the saidlegal position respondent No. 1 and 2 insisted oncollecting professional tax from the employeesworking in the defence services at variousplaces. This has resulted in a bunch ofpetitions filed in this High Court which weredisposed of by common order dated 10.1.1994 (anunreported case).
4. The petitioners Union maderepresentations to their Office, namely,respondent No. 4, who in turn recommended theircase pointing out that since the case of theemployees of petitioner Union is on the samefooting, the deduction of professional tax maynot be made. It is pointed out that even theHead quarter, maintenance Command, Indian AirForce, Nagpur, had represented the case of theemployees and all other civilian employeesworking at Air Force, for stopping the recoveryof the professional tax. However, respondentNo. 3 took no action in the matter.
5. Since their grievances were notredressed, the petitioners have filed the presentpetition seeking reliefs namely, declaration thatthe members of the petitioner Union are entitledto exemption under Section 27(a) of the said Actfrom payment of professional tax under the saidact, and for direction to respondents not torecover any amount from the members of thepetitioner Union's working in group-C, D towardsprofessional tax under the said and for refund tothe members of the petitioner union all amountsrecovered from the salaries/wages under the saidAct.
6. It is the contention of the petitionerthat its members are also members of armed forcesas they are governed by Rules and Regulations andAct applicable to employees who ordinarily renderfiled service. It is also pointed out that thesalaries of the said employees, members of theUnion are also paid from the defence servicesestimates of the Union of India from which thesalaries and other benefits, facilities andperquisites of the employees in the fieldservices are paid and the civilians in the armedforces are on par in all respect with theemployees in field service. It is submitted thatsince their counterparts working in other statesare not required to pay the professional taxesthe employees of the All India service inMaharashtra in general, and the members ofpetitioner Union working in respondent No. 4 arealso not liable for payment of professional taxand the action of Respondent No. 3 in recoveringthe said tax from its members is arbitrary, andviolative of Article 14 of the Constitution. Insupport of their contention reliance has beenplaced on B.S. Raut and Ors. v. State ofMaharashtra, 1992 Maharashtra Law Journal, 360wherein it has been held by a Division Bench ofthis Court that even civilian Defence personnelwho can be ordered to render field service whencalled upon to do so fall in the exemptedcategory 'Armed forces' and therefore areexempted from liability to pay professional taxunder Section 27A of the Maharashtra State Taxand Professional, Traders, Callings and EmploymentAct, 1975.
7. The Divisional Bench of this Courtdeclared its judgment in the case of B.S. Rautv. State of Maharashtra on the basis of theratio laid down by the Supreme Court, in the caseof 'ous Kutilingal Achudan nair v. Union ofIndia', : [1976]2SCR769 , where the questionarose whether the right to form union of theCivilian defence personnel like cooks,chowkidars, laskars, barbars, carpenters,mechanics, boot-makers, tailors etc. (unenrollednon-combatants governed by the Civil ServiceRules) could be curtained under Section 21 of theArmy Act.' The employees therein had taken astand that they were not the members of the'Armed Forces' as contemplated under the Article33 of the Constitution and hence their right toform Union could not be curtailed under Section21 of the Army Act. The Union of India took acontrary stand and upholding that stand theSupreme Court observed as follows:
'In enacting the Army Act, 1950 in sofar as it restricts or abrogates any ofthe fundamental rights of the members ofthe Armed Forces, Parliament derives itscompetence from Article 33 of theConstitution Section 2(1) of the Actenumerates the persons who are subject toto the operation of this Act. Accordingto Sub-clause (i) of this section,persons governed by the Act, includepersons not otherwise subject to militarylaw who, on active service, in camp, onthe march or at any frontier postspecified by the Central Government bynotification in this behalf, are employedby or are in the service of, or arefollowers of, or accompany any portion ofthe regular army.
The members of the Unions represented bythe appellants obviously fall within thiscategory. It is their duty to follow oraccompany the Armed personnel on activeService, or in camp or on the march.Although they are non-combatant and arein some matters governed by the CivilService Regulations, yet they areintegral to the Armed Forces. Theyanswer the description of 'members ofthe Armed forces' within thecontemplation of Article 33.Consequently by virtue of Section 21 ofthe Army Act, the Central Government wascompetent by notification to make rulesrestricting or curtailing theirfundamental rights under Article19(1)(c).
8. However, the position as set out by, aDivision Bench of this Court in B.S. Raut v.State of Maharashtra is no longer good law inview of a recent judgment of this Court in thecase of Pratiraksha Mazdoor Sangh and Ors. v.State of Maharashtra and Ors. reported in 2002, Bom C.R. 414. Wherein this Court in para 17observed as follows:
'17. The substratum of the very basis ofthe judgment of the Division Benchdelivered in the case of B.S. Raut v.State of Maharashtra (Supra) does notexist as on date, as such, the saidjudgment is no longer a good law and itcannot be allowed to hold the field inthe light of the existing provisions ofthe Act. A Statute after its amendmentis to be read and construed withreference to the new provisions and notwith reference to the provisions whichoriginally existed. It is needless tomention that when legislature intended byany particular amendment to makesubstantial changes in the existingstatute, it is impossible to arrive at aconclusion without noticing the changesuggested or intended and after takinginto account the changes made by thelegislature, it is not possible for us tohold that the said judgment still holdsthe field. In view of the amendment toSection 27-A of the Act, the saidjudgment cannot be applied to the factsof the present case. It is no longer agood law.'
9. This Court by its decision in PratirakshaMazdoor v. State of Maharashtra overturned itsearlier decision in the case of B.S. Raut v.State of Maharashtra, (Supra), in view of therecent amendment to Section 27(A) of the said Actdeleting Clause (a-1) i.e. 'persons on theestablishment of Defence Ordinance Factories atany part of the State'. The said clause isdeleted by Maharashtra Act, 28/2000 with effectfrom 1.5.2000.
10. This Court in Pratiraksha Mazdoor casesurveyed the history of the Legislation inquestion and pointed out that when the Act wasbrought on the Statute book it did not containany power to grant exemption in favour of anyperson from the provisions contained in Section 3of the Act.
Section 3 reads as under:
'3. Levy and charge of tax.--(1) Subjectto the provisions of Article 276 of theConstitution of India and of this Act,there shall be levied and collected a taxon professions, trades, callings andemployments for the benefit of the State.
(2) Every person engaged actively orotherwise in any profession, trade,calling or employment and falling underone or the other of classes mentioned inthe second column of Schedule I shall beliable to pay to the State Government thetax at the rate mentioned against theclass of such persons in the third columnof the said Schedule:
Provided that, the tax so payable inrespect of any one person shall notexceed two thousand and five hundredrupees in any year:
Provided further that, entry 23 inSchedule I shall apply only to suchclasses of persons as may be specified bythe State Government by notification inthe Official Gazette, from time totime.'
11. Subsequently, since it was thoughtnecessary to provide such power to grantexemption, Section 27(A) was introduced byMaharashtra Act No. 21 of 1976 with effect from1.11.1976 Section 27-A provided the power togrant exemption from the provisions of Section 3of the Act as amended with effect form 1.11.1976Section 27A read as follows:
27-A Exemptions:--Nothing contained inSection 3 and other provisions of thisAct shall apply to:
(a) The members of the armed forces of theUnion, that is to say to whom the provisions ofthe Army Act, 1950, the Air Force Act, 1950, orthe Navy Act, 1957 apply serving in any part ofthe State.
12. Section 27 A Clause (a) was substitutedon 22.2.1991 by Maharashtra Act 12 of 1991 to beread as follows:
(a) the members of the forces as defined inthe Army Act, 1950 or the Air Force Act, 1950 andthe members of Indian Navy as defined in the NavyAct, 1957 serving in any part of the State anddrawing pay and allowances as Army or Air Forceor Navy, as the case may be, including themembers of auxiliary forces for reservists, orreserve and auxiliary services serving in anypart of the State and drawing pay and allowancesas such auxiliary forces or reservists, orreserve and auxiliary services, as the case maybe under the budgetary allocations of the defenceservices.
13. The amended Section 27A was again amendedby insertion of Clause (a-1) by MaharashtraOrdnance No. 12 of 1996 with effect from 1stOctober, 1996 substituted by Maharashtra Act, 9 of1997 to as follows:
'(a-1) persons on the establishment ofDefence Ordnance Factories in any part of theState'.
Clause (a-1) of Section 27A has now been deleted byMaharashtra Act No. 28 of 2000 with effect from1st May, 2000.
14. In view of deletion of the above Clause(a-1) the exemption in favour of persons onestablishment of defence Ordnance Factories inany part of the State, as clarified by this Courtin case of B.S. Raut v. State of Maharashtra(Supra), no longer exists.
15. It was the contention of the petitionersin Pratiraksha Mazdoor v. State of Maharashtrathat despite deletion of Sub-clause (a-1) ofSection 27-A the petitioners are entitled toexemption, on the text of existing Clause (a) ofSection 27-A of the Act. According to them, whenthe case of B.S. Raut v. State of Maharashtra(supra) was decided by the Division Bench,admittedly, Clause (a-1) of Section 27-A was noton the statute book, even then the Division Benchheld that such persons were entitled to exemptionfrom payment of professional tax. As such, inthe submission of petitioners, on the bare textof Clause (a) of Section 27-A of the Act, they areentitled to claim exemption from payment ofprofessional tax.
16. The Division Bench of this Court rejectedthe contention by referring to the variousamendments to Section 27A from time to timespecifically the amendment made to Clause (a) ofSection 27-A of the Act. It is pointed out thatthe said Clause (a) has now been completelyoverhauled and substituted in toto. 'The words'members of force' defined under the Army Act,1950 now mean regular Army, Navy and Air Force orany part of any one or more of them. RegularArmy has also been defined to mean the officers,junior commissioned officers, warrant officers,non-commissioned officers and other enrolledpersons who, by their commission warrant, termsof enrolment or otherwise, are liable to rendercontinuously for a term military service to theUnion in any part of the world, including personsbelonging to the Reserve Forces and theTerritorial Army when called out on permanentservice. The petitioners do not fall in any ofthe part of this definition, therefore, theycannot be said to be members, of the forces underSection 3(xi) of the Army Act, 1950.
17. In the present case the petitioners beingmembers of the Union consisting of employees ingrade-C and D equivalent to Class-III and IV ofCivilian employees working in the 25 EquipmentDepot Air Force Station, South Deolali do notfall within the definition of the 'members ofthe force' as defined in Clause (a) of Section27-A of the Act. Hence, they are not entitled toany exemption in payment of professional tax asclaimed. In view of the judgment of a DivisionBench of the Court in Pratiraksha Mazdoor v.State of Maharashtra the contention of thepetitioners cannot be accepted and the relianceplaced on B.S. Raut v. State of Maharashtra,also delivered by Division Bench of this Court,is misplaced. The decision of the Division Benchof this Court in 'Pratiraksha Mazdoor v. Stateof Maharashtra' not being rendered per incuriamas it has been delivered in view of the amendmentto Clause (a) in Section 27A, the same, sofar asthis Court is concerned, is the last word on thesubject and therefore binding.
Hence petition is dismissed.
Rule discharged. No orders as to costs.