Ganpat Lal Lakhotia Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
sales tax - inter-state trade - section 5 of rajasthan sales tax act, 1954 and sections 14 and 15 of central sales tax act, 1956 - notification issued by respondent-state levying sales tax at rate of 7% on watery coconuts - notification was challenged on ground that watery coconut fell within purview of section 14 of central sales tax act therefore levy at rate of 7% was bad - notification was upheld by high court - appeal against such order - apex court held, watery coconut can only be taxed within restriction imposed by section 15 of central sales tax act - notification insofar seeking to tax watery coconut at rate of 7% be struck down. - maharashtra recognition of trade unions & prevention of unfair labour practices act (1 of 1972)section 21: [tarun chatterjee & r.m. lodha, jj] proceedings relating to unfair labour practice who can espouse cause of affected employees ? held, it is only recognized union which has empowered to espouse the cause relating to unfair labour practices specified in items 2 and 6 of schedule iv in the proceedings before industrial/labour court. section 21(1) is a special provision in respect of appearance, act and representation in respect of the complaints filed under section 28 relating to unfair labour practices specified in items 2 and 6 of schedule iv. section 21 thus, creates a bar on unrecognized union from acting, appearing or representing any employees (s) in a proceeding relating to unfair labour practices under items 2 and 6 of schedule iv. the right to represent the employee(s) in matters relating to unfair labour practices in items 2 and 6 of schedule iv of the act under section 21 is exclusively available to the recognized union and none else. the affected employees in the complaints filed by the unrecognized union may not be entitled to the benefits of permanency to the post of cleaners as these complaints are not maintainable. but in the present fact situation, it would be travesty of justice if at the stage of appeal before supreme court because of non-maintainability of the complaints at the instances of the unrecognized union, these employees are deprived of the benefits of the benefits of status, wages and permanency applicable to the post of cleaners when similarly situated employees who had filed the complaint individually would get benefits of permanency applicable to the post of cleaners. in view of this exceptional situations, for doing complete justice between the parties, supreme court in exercise of its plenary power under article 142 of constitution of india, although the two complaints filed by unrecognized union are not maintainable in so far as unfair labour practices under item 6 of schedule iv is concerned yet in the facts and circumstances of the case directed that the employees in these two complaints would also get the status, wages and other benefits of permanency applicable to the post of cleaners as the employees in other complaint. labour practice - regularisation and conferring permanency status on workers held, supreme court was concerned in [secretary, state of karnataka & ors. v umadevi & ors. 2006 (4) scc 1; air scw 199] with the exercise of powers by the high courts under article 226 and supreme court under article 32 of the constitution of india in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularisation and conferring them status of permanency have been passed. umadevis case is an authoritative pronouncement for the proposition that supreme court (under article 32) and high courts (under article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage of ad hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme. umadevis case does not denude the industrial and labour court of their statutory power under section 30 read with section 32 of the act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of schedule iv where the posts on which they have been working exists. umadevis case cannot be held to have overridden the powers on industrial and labour courts in passing appropriate order under section 30 once unfair labour practice on the part of the employer under item 6 of schedule iv is established. the standing orders are contractual in nature and to not have a statutory force and breach of standing orders by the corporation is itself an unfair labour practice. corporation for years together by engaging them as cleaners for cleaning buses on piece rate basis, it is too late in the day for them to urge that procedure laid down in standing order no. 503 having not been followed, these employees could not be given status on principles of permanency. the plea of the corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. that industrial court having found that the corporation indulged in unfair labour practice in employing the complainants as casuals on piece rate basis it cannot be said that the only direction that could have been given to the corporation was to cease and desist from indulging into such unfair labour practice and no direction of according permanency to these employees could have been given. the specific power is given to the industrial/labour court under section 31(1)(b) to take affirmative action against the erring employer to accord permanency to the employees affected by such unfair labour practice. thus, the direction of giving status, wages and all other benefits of permanency applicable to the post of cleaners to the complainants, in the facts and circumstances, is justified and warrants no interference. - order 1. the appeal is concerned with a notification issued by the respondent-state of rajasthan on 9th march, 1970, in exercise of the powers conferred by section 5 of the rajasthan sales tax act, 1954, levying sales tax at the rate of 7 per cent on 'watery coconuts'.the notification was challenged on the ground that watery coconuts fell within the purview of section 14 of the central sales tax act, 1956, and that, therefore, the levy at the rate of 7 per cent was bad. it is not in dispute that if watery coconuts fall within the purview of section 14, the notification levying sales tax thereon at the rate of 7 per cent would be bad in law. but a fully grown coconut with a well-developed kernel which contains water cannot be called either a tender or a dried coconut. this is the well-known variety of coconuts used for culinary purposes and on auspicious occasions and as part of the offerings in temples.order1. the appeal is concerned with a notification issued by the respondent-state of rajasthan on 9th march, 1970, in exercise of the powers conferred by section 5 of the rajasthan sales tax act, 1954, levying sales tax at the rate of 7 per cent on 'watery coconuts'. the notification was challenged on the ground that watery coconuts fell within the purview of section 14 of the central sales tax act, 1956, and that, therefore, the levy at the rate of 7 per cent was bad. the notification was upheld by a learned single judge and, in the order appealed against, by a division bench of the high court, reliance being placed upon the judgment of this court in sri siddhi vinayaka coconut & co. v. state of andhra pradesh : [1975]1scr440 .2. in section 14 of the central sales tax act certain goods are specified which are of 'special importance in inter-state trade or commerce'. they include : (vi) oilseeds, that is to say,- (viii) coconut (i.e., copra excluding tender coconuts) (coconut nuciferd).3. to these goods the restrictions contained in section 15 apply. it is not in dispute that if watery coconuts fall within the purview of section 14, the notification levying sales tax thereon at the rate of 7 per cent would be bad in law.4. the principal question, therefore, is : what are watery coconuts we find that the andhra pradesh high court in sri krishna coconut co. v. commercial tax officer : air1966ap128 , has squarely dealt with the question. the court said :in a tender coconut, the kernel is hardly formed or is only in the initial stages of formation. in a dried coconut the kernel has formed and fully developed and further the water inside the coconut has dried up leading to the drying of the kernel also. but a fully grown coconut with a well-developed kernel which contains water cannot be called either a tender or a dried coconut. this is the well-known variety of coconuts used for culinary purposes and on auspicious occasions and as part of the offerings in temples. i do not think it is correct or reasonable to describe this class of coconuts as either dried or tender. 5. the distinction is also indicated in the judgment of this court in sri siddhi vinayaka coconut & co. : [1975]1scr440 , which was relied upon by the high court, where it was said, 'undoubtedly it is the watery coconut that in due course becomes dried coconut or copra'. there is no material placed upon the record by the respondent-state to show that 'watery coconuts' are outside the scope of section 14(vi)(viii).6. it may be mentioned that the judgment in the case of sri siddhi vinayaka coconut & co. : [1975]1scr440 did not deal with the question that is before us. what was under consideration was whether a watery coconut could be taxed within the permissible restrictions as also the dried coconut that resulted from the drying of the same watery coconut, and it was pointed out that under the state statute that the court was concerned with, though the watery coconut and the dried coconut were treated separately, there was a provision for refund when the watery coconut that had suffered tax became a dried coconut.7. watery coconuts, therefore, can only be taxed within the restrictions imposed by section 15 of the central sales tax act. the notification, in so far as it seeks to tax watery coconuts at the rate of 7 per cent, must therefore, be struck down.8. the appeal is allowed. the judgment and order under appeal is set aside. the notification dated 9th march, 1970, issued by the respondent-state is quashed. any payment in excess of the tax permissible under section 15 of the central sales tax act made by the appellants pursuant to the said notification shall be refunded.9. no order as to costs.

Judgment:
ORDER

1. The appeal is concerned with a notification issued by the respondent-State of Rajasthan on 9th March, 1970, in exercise of the powers conferred by Section 5 of the Rajasthan Sales Tax Act, 1954, levying sales tax at the rate of 7 per cent on 'watery coconuts'. The notification was challenged on the ground that watery coconuts fell within the purview of Section 14 of the Central Sales Tax Act, 1956, and that, therefore, the levy at the rate of 7 per cent was bad. The notification was upheld by a learned single Judge and, in the order appealed against, by a Division Bench of the High Court, reliance being placed upon the judgment of this Court in Sri Siddhi Vinayaka Coconut & Co. v. State of Andhra Pradesh : [1975]1SCR440 .

2. In Section 14 of the Central Sales Tax Act certain goods are specified which are of 'special importance in inter-State trade or commerce'. They include :

(vi) Oilseeds, that is to say,-

(viii) Coconut (i.e., copra excluding tender coconuts) (Coconut nuciferd).

3. To these goods the restrictions contained in Section 15 apply. It is not in dispute that if watery coconuts fall within the purview of Section 14, the notification levying sales tax thereon at the rate of 7 per cent would be bad in law.

4. The principal question, therefore, is : what are watery coconuts We find that the Andhra Pradesh High Court in Sri Krishna Coconut Co. v. Commercial Tax Officer : AIR1966AP128 , has squarely dealt with the question. The court said :

In a tender coconut, the kernel is hardly formed or is only in the initial stages of formation. In a dried coconut the kernel has formed and fully developed and further the water inside the coconut has dried up leading to the drying of the kernel also. But a fully grown coconut with a well-developed kernel which contains water cannot be called either a tender or a dried coconut. This is the well-known variety of coconuts used for culinary purposes and on auspicious occasions and as part of the offerings in temples. I do not think it is correct or reasonable to describe this class of coconuts as either dried or tender.

5. The distinction is also indicated in the judgment of this Court in Sri Siddhi Vinayaka Coconut & Co. : [1975]1SCR440 , which was relied upon by the High Court, where it was said, 'undoubtedly it is the watery coconut that in due course becomes dried coconut or copra'. There is no material placed upon the record by the respondent-State to show that 'watery coconuts' are outside the scope of Section 14(vi)(viii).

6. It may be mentioned that the judgment in the case of Sri Siddhi Vinayaka Coconut & Co. : [1975]1SCR440 did not deal with the question that is before us. What was under consideration was whether a watery coconut could be taxed within the permissible restrictions as also the dried coconut that resulted from the drying of the same watery coconut, and it was pointed out that under the State statute that the court was concerned with, though the watery coconut and the dried coconut were treated separately, there was a provision for refund when the watery coconut that had suffered tax became a dried coconut.

7. Watery coconuts, therefore, can only be taxed within the restrictions imposed by Section 15 of the Central Sales Tax Act. The notification, in so far as it seeks to tax watery coconuts at the rate of 7 per cent, must therefore, be struck down.

8. The appeal is allowed. The judgment and order under appeal is set aside. The notification dated 9th March, 1970, issued by the respondent-State is quashed. Any payment in excess of the tax permissible under Section 15 of the Central Sales Tax Act made by the appellants pursuant to the said notification shall be refunded.

9. No order as to costs.