ORDER
N.K. Jain, C.J.
1. This Reference has been placed before this full Bench as per the order of the Chief Justice, dated 16.09.2003, and has come up before us today.
2. The necessary facts in brief are:
The writ petitioners were in the employment of the second respondent, Shimoga District Co-operative Bank (hereinafter called the 'Society') registered under the Karnataka Co-operative Societies Act, 1959 (for short the C.S. Act). They retired from service on attaining the age of superannuation after 24.09.1997. Their terminal benefits were settled and gratuity was paid as per the Karnataka Co-operative Society Rules (for short the C.S. Rules). The Petitioners submitted a representation before the Society for payment of more amount of gratuity as per the Payment of Gratuity Act, 1972 (hereinafter called the P.G. Act) as amended by Act 11 of 1998 Act. The same was rejected as per Endorsement dated 28.11.2000 (Annexure 'J'). Aggrieved, the petitioner filed the Writ Petitions to quash the said endorsement and to issue mandamus to the Respondents to pay gratuity as per provisions of Section 4 of the P.G. Act.
3. The learned Single Judge on consideration found that in view of the notification issued under the Mysore Shops Establishments Act, 1948 (for short 1948 Act), which has continued even after the Karnataka Shops and Commercial Establishments Act, 1961 (for short 1961 Act), the P.G. Act is not applicable to the Society. Hence the learned Single Judge felt that the decision of the Division Bench in MALLESHWARAM CO-OPERATIVE SOCIETY LTD. v. SENIOR LABOUR INSPECTOR ILR 1999 KAR 650 required reconsideration and referred the matter to a larger Bench by order dated 03.01.2002. Thereafter, matters were placed before another Division Bench, which also felt that the decision of the Division Bench required reconsideration as Notification had been issued under the 1948 Act which was repealed, and the 1961 Act has been reenacted and its provisions are inconsistent with those of the 1948 Act. Accordingly, it referred the matter to a larger Bench, by order dated 16.09.2002, to consider the question as to whether the decision of the Division Bench of this Court in Malleshwaram Co-operative Society's case requires reconsideration as stated.
4. Sri Ranganath S. Jois, learned Counsel appearing for the petitioners submitted that the second Respondent is not exempt from the provisions of the P.G. Act and the Notification issued under the 1948 Act, which was repealed, would not survive but would become inoperative as the provisions of the 1961 Act are inconsistent with those of the 1948 Act and hence, the decision of the Division Bench does not lay down the correct law and a Cooperative Society is also governed by the P.G. Act.
5. Sir G. Chandrashekaraiah, learned Counsel appearing for the second respondent-Society submitted that the decision of the Division Bench does not require reconsideration as it has correctly laid down the law and a Co-operative Society is not governed by the provisions of the P.G. Act.
6. Sri M.N. Seshadri, learned High Court Government Advocate for Respondents Nos. 1 and 2 submitted that the notification issued under the 1948 Act would not continue to operate only if the provisions of the 1961 Act are inconsistent, as repeal would extinguish the earlier Act and orders issued thereunder and the Government has not issued any Notification under the 1961 Act.
7. We have given anxious consideration to the contentions of the learned Counsel appearing for the parties, perused the orders of reference made by the learned Single Judge and the Division Bench and the decision of the Division Bench of this Court in Malleshwaram Co-operative Society's case.
8. The short question for consideration before us is whether the notification issued under an Act which has been repealed will continue or not.
Admittedly, the new Act came into force from 24.09.1997 repealing the old Act. Under the circumstances, the notification also has no force unless the same is continued under the new Act or is not inconsistent with its provisions.
It is also seen that in earlier Act there was a provisions for exemption, whereas under the new Act repealing the old Act, there is no provisions for exemption as contained in Section 6 of the repealed Act, 1948.
9. It is well settled that, repeal lexically means 'to revoke or annul'. A Constitution Bench of the Supreme Court has held that the normal effect of a repealing statute is to obliterate it as if it has never been passed and the Statute must be considered as a law that never existed (KOLLAPUR CANE SUGAR WORKS v. UNION : 2000(119)ELT257(SC) . The sub-ordinate legislation and notifications issued under the repealed Law would also meet the same fate unless they are continued under the reenacted law or continue to be operative in view of Section 24 of the General Clauses Act. Under this Section, whether the earlier Notification issued under the repealed Act would continue in force or not would depend essentially on its compatibility with the amended provisions. If the earlier Notification is inconsistent with reenacted provision the notification cannot be kept alive by enforcing it as held by a Full Bench of this Court in SHAW WALLACE AND CO. LTD., v. STATE OF KARNATAKA ILR 1992 KAR 1994.
10. The fact that the second Respondent is a Co-operative Society and further it is an establishment under the provisions of 1948 Act, and the 1961 Act, which has repealed the 1948 Act, and hence, an employer as defined under Section 2(f) of the P.G. Act, is not in dispute. However, the only ground upon which the respondent-Society claims exemption from the provisions of the P.G. Act is on the basis of a Notification issued under Section 6 of the 1948 Act dated 17.5.1952 excluding Co-operative Society from the purview of the P.G. Act. The Division Bench of this Court in Malleshwaram Co-operative Society's case held that the said Notification continued even after repeal of 1948 Act and reenactment of 1961 Act in view of the provisions of Section 24 of Karnataka General Clauses Act and observed as follows:-
'The main object of Section 24 is to preserve the continuity of the orders, schemes, rules or bye-laws issued under the repealed Act, unless a different intention appears. We do not agree with the learned Counsel appearing for the employees that the provisions of Section 24 would not apply in the case or save the Notification issued under the Mysore Shop and Establishment Act, 1948 because the provisions made in the repealed Act and the new enactment in the matter of minimum Wages Act were inconsistent. The notification dated 17.05.1952 had specifically excluded the Co-operative Societies from the purview of the Mysore Shop and Establishment Act, 1948 which was in no way inconsistent with the new enactment being Act No. 8/1962 dealing with the same subject. The enactment under the Mysore Act appears to have been issued in view of the effective mechanism for fixation of fair wages for the employees of the Co-operative Societies was found to be already effective and prevalent.'
The notification dated 17.5.1952 reads as follows:-
'NOTIFICATION
In exercise of the powers conferred by Section 6 of the Mysore Shop and Establishment Act, 1948 (Mysore Act, No. II of 1948). His Highness of the Maharaja of Mysore is pleased to exempt all the co-operative Institutions in the State of Mysore, registered under the Mysore Cooperative Act, 148 from the provisions of the said Act.'
Section 6 of the 1948 Act reads as follows:-
Section 6: 'The State Government may by Notification, exempt either permanently or for specified period, any establishment or class of establishments, or person or class of persons, from all or any of the provisions of this Act, subject to such conditions as the Government deems fit.'
The Karnataka Shops and Commercial Establishments Act, 1961, which repealed 1948 Act contains the following provisions relating to Repeal and Saving:
'Section 42 : Repeal and Savings:-
The Bombay Shops and Establishments Act 1948 (Bombay Act LXXIX of 1948), as in force in the Bombay area, the Hyderabad Shops and Establishments Act, 1951 (Hyderabad Act X of 1951), as in force in the Hyderabad Area, the Madras Shops and Establishments Act, 1947 (Madras Act XXXVI of 1947) as in force in the Madras Area, and the Mysore Shops and Establishments Act, 1948 (Mysore Act II of 1948), as in force in the Mysore area, are hereby repealed:
Provided that Section 6 of the Mysore General Clauses Act, 1899 (Mysore Act III of 1899), shall be applicable in respect of such repeal and Sections 8 and 24 of the said Act shall be applicable as if the said Acts had been repealed and re-enacted by this Act.'
Section 24 of the Karnataka General Clauses Act, reads as follows:-
'24. Continuation of orders etc.. issued under enactments repealed and re-enacted. Where any enactment is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any (Appointment, notification) order, scheme, rule form or bye-law, (made or) issued under the repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been (made or) issued under the provisions so re-enacted, unless and until it is superseded by any (appointment, notification), order, scheme, rule form or by law (made or) issue under the provisions so reenacted.'
Section 3(1) of the 1961 Act, exempts applicability of the Act to the establishments enumerated in Clauses (a) to (j) and Section 3(2) exempts establishments mentioned in Clauses (a) to (s) from the applicability of the provisions of Section 11 or Sub-section (1) of Section 12. Sub-sections 3 and 4 of Section 3 read as follows:-
'Section 3(3) : Notwithstanding anything contained in subsection (1) or Sub-section (2), the State Government may by notification declare that any establishments or person specified therein shall not be exempt from the operation of such provisions of this Act as may be specified in the notification and that the provisions of this Act specified in such notification shall apply to such establishment or person.'
'3(4): The State Government may by notification exempt establishments where the nature of work is;
(i) intermittent, or
(ii) seasonal, or
(iii) for a short duration not exceeding two months, and it is difficult to enforce the provisions of this Act;
from all or any of the provisions of this Act, subject to such conditions as may be specified in the Notification.
11. It is clear from the above said provisions of Section 24 of the Karnataka General Clauses Act that a notification issued under the repealed 1948 Act would continue to be operative only if the provisions of the reenacted Act, 1961 are not inconsistent with the provisions of the repealed 1948 Act. The provision enabling the State Government to exempt applicability of the Act to any establishment, by notification under Section 6 of the repealed Act, is not contained in the reenacted 1961 Act. Under Sub-section (3) of Section 3, the Government has only power to apply the provisions of the Act to the establishment, exempted under Sub-sections (1) and (2), and Sub-section (4) enables the State Government to exempt establishments from applicability of all or any of the provisions of the Act only where nature of work is intermittent or seasonal or for a short duration not exceeding two months and it is difficult to enforce the provisions of the Act. Apart from subsection (4), the Government is not empowered under any other provision in the 1961 Act, to exercise the power of exemption which had been contained in the 1948 Act. Hence, it is clear that the provisions of the 1961 Act, are inconsistent with the provisions of the 1948 Act and hence, the notification issued under the 1948 Act would not continue even in accordance with the provisions of Section 24 of the Karnataka General Clauses Act.
12. Under the circumstances, the finding of the Division Bench in Malleswaram Co-operative Society's case that the provisions of the 1961 Act, are not inconsistent with the provisions under the 1948 Act, is unsustainable. The Division Bench has failed to take into account the provisions of the repealing and the reenacted Acts and has overlooked the fact as stated above that there is no provision for general exemption as contained in Section 6 of the 1948 Act in the 1961 Act, and hence, a Co-operative Society is not exempt from the application of the P.G. Act.
13. Learned Counsel for the parties also submit that the Division Bench in Malleshwaram Co-operative Society's case, has observed that 'it is held that the provisions of the Minimum Wages Act and the Payment of Gratuity Act are not applicable to the employees of the Co-operative Societies', is not correct.
14. In view of the above of the above discussion, we hold that the decision of the Division Bench in Malleshwaram Co-operative Society's case (ILR 1999 KAR 650) does not correctly lay down the law and overruling the said decision, we hold that the notification dated 17.05.1952 issued under 1948 Act, would not continue to operate under 1961 Act for the reason stated above. As discussed above, the reference made by the Division Bench is answered accordingly.
15. The Writ Petitions shall be posted for final hearing before the appropriate Bench.