1. This appeal is directed against the judgment and
order of the High Court of Gujarat at Ahmedabad (in
short, “the High Court”), dated 24.02.2016, passed in
First Appeal No. 112 of 2016, by which the appeal of
the appellant under Section 30 of the Employees
Compensation Act, 1923 (formerly known as the
Workmen’s Compensation Act, 1923 - hereinafter
Signature Not Verified
Digitally signed by referred to as the 1923 Act) against the order of the SWETA BALODI
“the Commissioner”) in W.C. Case No. 05 of 2010,
has been dismissed.
FACTS
2.The husband of the first respondent was appointed as a Constable in the Railway Protection Special Force, a unit of the Railway Protection Force (in short, “the RPF”), on 27.12.2006. He died on 23.04.2008 in an accident in the course of his employment. On his death, the first respondent along with other heirs of the deceased filed a claim petition under the 1923 Act for compensation by claiming, inter alia, that on the date of his death, the deceased was aged 25 years and getting monthly wages of Rs. 8,000/-. The claim was resisted by the appellants, inter-alia, on the ground that the deceased was part of the Armed Forces of the Union and, therefore, not a workman; hence, the claim petition under the 1923 Act is not maintainable.
3.The Commissioner found that the relationship of workman-employer between the deceased and the non-claimant was admitted to the non-claimant; the deceased died in an accident in the course of his employment; and the deceased being a “Railway Servant”, as per the provisions of Section 2(34) of the Railways Act, 1989 (in short, the 1989 Act), would be deemed to be a “workman” under Section 2(1)(n)(i) of the 1923 Act and, therefore, the claim petition was maintainable. Regarding the amount payable as compensation, applying the formula provided in Section 4 of the 1923 Act, the Commissioner determined the compensation payable as Rs. 4,33,820/- and directed it to be paid to the claimants within 30 days from the date of the order with 9% interest.
4.Aggrieved by the order of the Commissioner, the appellant filed a first appeal bearing number 112 of 2016 before the High Court under Section 30 of the 1923 Act. The thrust of the submissions before the High Court was that the definition of “workman” as per Section 2 (n) of the 1923 Act excludes any person working in the capacity of a member of the Armed Forces of the Union, therefore, since Section 3 of the Railway Protection Force Act, 1957 (in short, “the 1957 Act”) declared the RPF as an Armed Force of the Union, the deceased being a constable in the RPF would not be a workman within the meaning of section 2 (n) of the 1923 Act; hence, claim petition under the 1923 Act was not maintainable.
5.The aforesaid plea raised by the appellant was not accepted by the High Court and the appeal was dismissed.
6.Aggrieved by the judgment and order of the High Court, this appeal has been preferred.
7.We have heard Mr. Vikramjit Banerjee, learned ASG assisted by Mr. Shubhendu Anand and Mr. Rajan Kr. Chourasia for the appellant and Ms. Prerana Chaturvedi for the respondents. SUBMISSIONS ON BEHALF OF THE APPELLANT
8.On behalf of the appellant, it was submitted that the deceased was indisputably a member of the RPF which, as per Section 3 of the 1957 Act, is an Armed Force of the Union. Section 2 (n) of the 1923 Act defines a workman. By clause clause (n) of subsection (1) of Section 2 of the 1923 Act, though workman, inter alia, means a railway servant as defined in Section 2 (34) of the 1989 Act, any person working in the capacity of a member of the Armed Forces of the Union is excluded. Therefore, as, by virtue of Section 3 of the 1957 Act, the deceased was part of the Armed Forces of the Union, he was not a workman within the meaning of Section 2 (1)(n) of the 1923 Act and, in view thereof, the claim petition was not maintainable under the 1923 Act.
9.In addition to the above, it was argued that the deceased was not an employee specifically covered by any of the Entries in Schedule II of the 1923 Act, therefore, he cannot be treated as a workman under 2(1)(n) of the 1923 Act. It was pointed out that Entries (i), (xii) and (xiii) of Schedule II refers to employees of the Railways but a constable in the RPF is conspicuous by its absence there. According to the counsel for the appellant, unless an employee falls in any of the entries specified in Schedule II of the 1923 Act he cannot be considered a workman.
10.It was next contended that the process of compassionate appointment of the next of kin of the deceased was initiated, therefore, a claim for compensation was not maintainable under the 1923 Act. More so, when the claimants-respondents had an alternate remedy available under Section 124-A of the 1989 Act.
11.In support of his submissions, the learned counsel for the appellants relied on certain decisions, namely, (i) Union of India v. Sri Harananda1, wherein, relying on Sections 3 and 8 of the 1957 Act, it was held that RPF is an Armed Force of the Union. However, this decision is not in the context of the 1923 Act. (ii) United India Insurance Co. Ltd. v. Orient Treasures Pvt. Ltd.2, wherein it was observed that when the words of a statute are clear, plain or unambiguous i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences; and (iii) Union of India v. Prabhakaran Vijaya Kumar3, wherein it was observed that in a beneficial or welfare statute if the words used therein are capable of two constructions, the one which is more in consonance with the object of the Act, and for the benefit of the person for whom the Act was made, should be preferred. (Note: This decision was relied upon to canvass that compensation could be had under Section 124-A of the 1989 Act and, therefore, there was no justification to invoke the provisions of the 1923 Act) SUBMISSIONS ON BEHALF OF RESPONDENTS
12.On behalf of the respondents, it was submitted that Section 2 (1) (n) (i) of the 1923 Act unequivocally states that workman means a “railway servant” as defined in Section 2(34) of the 1989 Act. Section 2 (34) of the 1989 Act, as amended with effect from 01.07.2004, provides that “railway servant” would include a member of the RPF appointed under clause (c) of sub-section (1) of Section 2 of the 1957 Act. Therefore, by virtue of Section 2(1)(n)(i) of the 1923 Act read with Section 2(34) of the 1989 Act, a constable of RPF would be deemed a workman for the purposes of the 1923 Act.
13.It was argued that the phrase “armed forces of the Union” is not defined and, therefore, it would have to be interpreted in the context in which it was inserted in the statute. It was urged that the 1923 Act is a pre-independence statute. Prior to independence, instead of the phrase “armed forces of the Union”, “His Majesty’s naval, military or air forces” was used. Therefore, to assert the Republic status of the country, post the enforcement of the Constitution of India in the year 1950, replacement of that phrase was considered necessary and was done so by A.O. 1950 with effect from 26 January 1950. Thus, the phrase “armed forces of the Union” would have to be given a restrictive meaning in the context in which it has been inserted.
14.With regard to the relevance of Entries (i), (xii) and (xiii) of Schedule II of the 1923 Act, it was urged that they do not concern an RPF constable who, by virtue of Section 2(34) of the 1989 Act read with Section 10 of the 1957 Act, is a railway servant and, therefore, a workman as per the provisions of subclause (i) of clause (n) of sub-section (1) of Section 2 of the 1923 Act.
15.It was urged that by declaring a member of the RPF as a member of the armed forces of the Union, the legislative intent was not to exclude the applicability of the 1923 Act, inasmuch as Section 19 of the 1957 Act, which was simultaneously amended, though excludes the applicability of certain other Acts such as Payment of Wages Act, 1936, Industrial Disputes Act, 1947 and Factories Act, 1948, does not exclude the applicability of the 1923 Act. This clearly indicates that the legislative intent is not to exclude the applicability of the provisions of the 1923 Act on a member of the RPF by virtue of their inclusion in the definition of a “railway servant”.
16.It was also submitted that by Workmen’s Compensation (Amendment) Act, 2009, with effect from 18.01.2010, the term “Workman” was substituted by the term “Employee” and, therefore, Act, defining a “workman”, was omitted and new clause (dd), defining an “employee”, was inserted in sub-section (1) of Section 2 of the 1923 Act. Yet, despite having declared RPF as an armed force of the Union and a member of the RPF being included in the definition of a “railway servant”, with effect from 1.7.2004, the newly inserted clause (dd), defining an “employee”, takes no exception to it. Therefore, the legislative intent has never been to exclude a member of the RPF from the purview of the 1923 Act.
17.As regards existence of an alternative remedy under Section 124-A of the 1989 Act, it was argued that Section 128 of the 1989 Act specifically states that the right of any person to claim compensation under Section 124 or Section 124-A of the 1989 Act shall not affect the right of any such person to recover compensation payable under the 1923 Act, or any other law for the time being in force, though such person would not be entitled to claim compensation more than once in respect of the same accident.
18.In a nutshell, the submission on behalf of the respondents is that the application before the Commissioner under the provisions of the 1923 Act was maintainable and it was rightly entertained and allowed, therefore, the appeal was justifiably dismissed.
19.In support of her submissions learned counsel for the respondents cited a number of decisions, broadly on two general principles, namely, (a) that harmonious construction of the provisions of a statute must be adopted so that no provision of a statute is rendered otiose; and (b) that the 1923 Act being a piece of social welfare legislation, its provisions must be liberally interpreted in a manner that they serve the interest of those for whose benefit it was enacted. ISSUES THAT ARISE FOR CONSIDERATION
20.Having considered the rival submissions, the issues that arise for our consideration are: (i) Whether a Constable of a Railway Protection Force (RPF) can be treated as a “Workman” under Section 2(1) (n) of the 1923 Act even though, by virtue of amended Section 3 of the 1957 Act, he is a member of the Armed Forces of the Union? (ii) Whether, on account of availability of alternative remedy to apply for compensation under Sections 124 and 124-A of the 1989 Act, a claim under the 1923 Act is maintainable? DISCUSSION AND ANALYSIS
21.Before we dwell on the aforesaid issues, a look at the relevant statutory provisions would be apposite. The relevant provisions, interplay of which would have to be examined, are found in the following statutes: (i) The Workmen’s Compensation Act, 1923 (Now known as Employee’s Compensation Act, 1923) (in short, “the 1923 Act). (ii) The Indian Railways Act, 1890 (in short “the 1890 Act”). (iii) The Railways Act, 1989 (in short “the 1989 Act”). (iv) Railway Protection Force Act, 1957 (in short, “the 1957 Act”). Relevant Provisions of the 1923 Act
22.The preamble of the 1923 Act reads thus: “An Act to provide for the payment by certain classes of employers to their workmen (now substituted by the word ‘employees’) of compensation for injury by accident.”
23.Clause (n) of sub-section (1) of Section 2 of the 1923 Act, as it stood before its omission by Act No.45 of 2009, w.e.f. 18.01.2010, which is relevant to the controversy at hand, reads as under: “(n) “workman” means any person who is— (i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or subdivisional officer of a railway and not employed in any such capacity as is specified in Schedule II, or (ia) (a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them.” Note: The highlighted portion above, when originally enacted read as “but does not include any person working in the capacity of a member of His Majesty’s naval, military or air forces or of the Royal Indian Marine Service”. The words “or of the Royal Indian Marine Service” were omitted by A.O. 1937. Likewise, the words “His Majesty’s naval, military or air forces” were replaced by the words “the Armed Forces of the Union” by A.O. 1950.
24.The aforesaid clause (n) of sub-section (1) of Section 2 of the 1923 Act was omitted by Act No.45 of 2009, with effect from 18.01.2010, as by Act No.45 of 2009 the name of “The Workmen’s Compensation Act, 1923” was changed to “The Employee’s Compensation Act, 1923”. Consequent to the change in nomenclature of the Act, clause (n) of sub-section (1) of Section 2 was omitted and clause (dd), defining an employee, was inserted in sub-section (1) of Section 2 of the 1923 Act. Clause (dd) of sub-section (1) of Section 2 of the 1923 Act reads as under: -“(dd) “employee” means a person, who is— (i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or subdivisional office of a railway and not employed in any such capacity as is specified in Schedule II; or (ii) (a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India; or (iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;”
25.As we notice that various sub clauses of Act refer to Schedule II, a look at the relevant Entries in Schedule II, which deals with Railways, would be apposite to have a clear understanding of the true import of the provisions of clause (n) of sub-section (1) of Section 2 of the 1923 Act.
26.At this stage, we may observe that the learned counsel for the appellant has pointed out three entries in Schedule II which are referable to railways. These are Entry Nos. (i), (xii) and (xiii). These entries in Schedule II, as it stood prior to the amendment brought about by Act No.45 of 2009, along with the opening part of Schedule II are extracted below: Schedule II List of Persons who, subject to the provisions of Section 2 (1) (n), are included in the definition of Workmen. “The following persons are workmen within the meaning of Section 2 (1) (n) and subject to the provisions of that section, that is to say, any person who is--“(i) employed otherwise than in a clerical capacity or on a railway, in connection with the operation, repair or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle; or (xii) employed upon a railway as defined in clause (31) of Section 2 and sub-section (1) of Section 197 of the Railways Act, 1890 (9 of 1890), either directly or through a subcontractor, by a person fulfilling a contract with the railway administration; or (xiii) employed as an inspector, mail guard, sorter or van peon in the Railway Mail Service or as a telegraphist or as a postal or railway signaller, or employed in any occupation ordinarily involving outdoor work in the Indian Posts and Telegraphs Department”
27.The provisions of the 1890 Act are relevant because when the 1923 Act was enacted, the 1890 Act was in operation and the definition of a “workman” under the 1923 Act makes a reference to a railway servant. Therefore, definition of a “railway servant” as it existed in the 1890 Act becomes relevant. Likewise, Section 10 of the 1957 Act makes a reference to the 1890 Act, by stating that officers and members of the Force shall for all purposes be regarded as railway servants within the meaning of the 1890 Act other than Chapter VI-A thereof. It would therefore be useful to notice the definition of a railway servant as also the provisions of Chapter VI-A of the 1890 Act.
28.Section 3 (7) of the 1890 Act defined railway servant as: “railway servant means any person employed by a railway administration in connection with the service of a railway.”
29.Chapter VI-A of the 1890 Act provided for limitation of employment of railway servants. The said chapter comprised of Sections 71A, 71B, 71C, 71D, 71E, 71F, 71G and 71H.
30.Section 71A, inter alia, provided that unless there is anything repugnant in the subject or context: (a) the employment of a railway servant is to be “essentially intermittent” when it has been declared to be so by the authority empowered in this behalf, on the ground that it involves a long period of inaction.
31.Section 71B clarified that Chapter VI-A would apply only to such railway servants or classes of railway servants as the Central Government may, by rules made under Section 71E, prescribe.
32.Section 71C, inter alia, provided that a railway servant, other than a railway servant whose employment is essentially intermittent, shall not be deployed for more than sixty hours a week on the average in a month; whereas a railway servant whose employment is essentially intermittent shall not be deployed for more than eighty-four hours in any week.
33.Section 71D provided for grant of periodical rest and Section 71E empowered the Central Government to make rules.
34.Section 71F clarified that nothing in Chapter VI-A or the rules made thereunder shall authorize a railway servant to leave his duty where due provision has been made for his relief, until he has been relieved.
35.Section 71G provided for appointment of persons to be Supervisors of Railway Labour and Section 71H provided for penalty to any person under whose authority any railway servant is employed in contravention of any of the provisions of Chapter VIA or of the rules made thereunder.
36.The 1890 Act was repealed by the 1989 Act. Section 2 (34) as it existed originally defined railway servant as: “railway servant means any person employed by the Central Government or by a railway administration in connection with the service of a railway.” By Act No.51 of 2003, with effect from 1.7.2004, the definition of railway servant as provided in Section 2 (34) was amended as to read: “railway servant means any person employed by the Central Government or by a railway administration in connection with the service of a railway; including member of the Railway Protection Force appointed under clause (c) of sub-section (1) of section 2 of the Railway Protection Force Act, 1957 (23 of 1957)”.
37.Chapter XIII of the 1989 Act talks about liability of railway administration for death and injury to passengers due to accidents. Section 124 provides for the extent of liability and Section 124A, which was inserted by Act No. 28 of 1994, with effect from 01.08.1994, provides for compensation on account of an untoward incident. Section 125 enables filing of an application for compensation under Section 124 or Section 124A before the Claims Tribunal. Section 127 provides for determination of compensation by the Claims Tribunal in respect of any injury or loss of goods. Section 2 (3) states that “Claims Tribunal” means the Railway Claims Tribunal established under Section 3 of the Railways Claims Tribunal Act, 1987 (54 of 1987).
38.What is interesting in Sections 124 and 124A of the 1989 Act is the explanation attached thereto. The explanation to Sections 124 and 124-A provides that, for the purposes of the section, “passenger” includes a railway servant on duty. However, Section 128 of the 1989 Act saves the right of any person to claim compensation under the Workmen’s Compensation Act, 1923, or any other law for the time being in force. For reference, Section 128 of the 1989 Act is reproduced below: “128. Saving as to certain rights.-(1) The right of any person to claim compensation under section 124 or section 124A shall not affect the right of any such person to recover compensation payable under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force; but no person shall be entitled to claim compensation more than once in respect of the same accident. (2) Nothing in sub-section (1) shall affect the right of any person to claim compensation payable under any contract or scheme providing for payment of compensation for death or personal injury or for damage to property or any sum payable under any policy of insurance.”
39.In the 1989 Act, Chapter XIV provides for regulation of hours of work and period of rest of a railway servant, which is similar to the provisions of Chapter VI-A of the 1890 Act. Section 131 of the 1989 Act, which finds place in Chapter XIV of the 1989 Act, reads as under: “131. Chapter not to apply to certain railway servants.-- Nothing in this Chapter shall apply to any railway servant to whom the Factories Act, 1948 (63 of 1948) or the Mines Act 1952 (35 of 1952) or the Railway Protection Force Act, 1957 (23 of 1957) or the Merchant Shipping Act, 1958 (44 of 1958), applies.”
40.The 1957 Act has undergone legislative changes. The preamble of the Act, as originally enacted, used to read as under: “An Act to provide for the constitution and regulation of a Force called the Railway Protection Force for the better protection and security of railway property.”
41.By Act No. 60 of 1985, with effect from 20.09.1985, the preamble was substituted to read as follows: “An Act to provide for the constitution and regulation of an armed force of the Union for the better protection and security of railway property, passenger areas and passengers and for matters connected therewith.”
42.Some of the provisions of the 1957 Act relevant to the controversy at hand are Section 2(1) (a); Section 3; Section 10; and Section19.
43.Section 2(1)(a) defines “Force” as: “Force means the Railway Protection Force constituted under Section 3”.
44.Section 3 of the 1957 Act has undergone a legislative change with effect from 20.09.1985 by Act No. 60 of 1985. Prior to its amendment, Section 3 used to read as under: “Section 3. Constitution of the Force.-(i) There shall be constituted and maintained by the Central Government a Force to be called the Railway Protection Force for the better protection and security of Railway property. (ii) The Force shall be constituted in such manner, shall consist of such number of superior officers and members of the Force and shall receive such pay and other remuneration as may be prescribed.”
45.Post amendment, made by Act No. 60 of 1985,
Section 3 of the 1957 Act, w.e.f. 20.09.1985, reads as
follows:
“Section 3. Constitution of the Force.-
(i) There shall be constituted and maintained by the
Central Government an armed force of the Union to
be called the Railway Protection Force for the better
protection and security of Railway property.
(ii) The Force shall be constituted in such manner,
shall consist of such number of superior officers,
subordinate officers, under officers and other enrolled
members of the Force and shall receive such pay and
other remuneration as may be prescribed.”
46. Section 10 of the 1957 Act also underwent
legislative change. Prior to its amendment, it was as
follows:
“Section 10. Officers and members of the Force to
be deemed to be Railway Servants.- The Inspector
General and any other superior officer and every
member of the Force shall for all purposes be
regarded as Railway Servant within the meaning of
the Indian Railway Act, 1890 other than Chapter VI-A
thereof, and shall be entitled to exercise the powers
conferred on Railway Servants by or under that Act.”
47. By Act No. 60 of 1985, Section 10 was
amended, with effect from 20.09.1985, to read as
follows:
“Section 10. Officers and members of the Force to
be deemed to be Railway Servants.- Director
General and every member of the Force shall for all
purposes be regarded as Railway Servants within the
meaning of the Indian Railways Act, 1890 (9 of 1890)
other than Chapter VI-A thereof, and shall be entitled
to exercise the powers conferred on Railway Servants
by or under that Act.”
48. Section 19 of the 1957 Act, prior to its
amendment made by Act No. 60 of 1985, was as
follows:
“Section 19. Certain Acts not to apply to members
of Force.- Nothing contained in the Payment of
Wages Act, 1936 or the Industrial Disputes Act, 1947
or the Factories Act, 1948, shall apply to members of
the Force.”
49. Post amendment, brought by Act No. 60 of
1985, with effect from 20.09.1985, Section 19 of the
1957 Act reads as follows:
“Section 19. Certain Acts not to apply to
members of Force.- Nothing contained in the
Payment of Wages Act, 1936 (4 of 1936) or the
Industrial Disputes Act, 1947 (14 of 1947) or the
Factories Act, 1948 (63 of 1948) or any corresponding
law relating to investigation and settlement of
industrial dispute in force in a State shall apply to
members of the Force.”
Issue No.(i): Whether provisions of the 1923
Act applies to a member of the RPF
50. Having examined the relevant statutory
provisions, we shall now address the issue no.(i)
noted above.
51. The 1923 Act as it stood at the relevant time
(i.e., the date of the accident out of which the claim
has arisen) was an Act to provide for the payment by
certain class of employers to their workman,
compensation for injury by accident. Section 3 of the
1923 Act, as it stood at the time of the accident in
question, provided that if personal injury is caused to
a workman by accident arising out of and in the
course of his employment, his employer shall be
liable to pay compensation in accordance with the
provision of Chapter II of the 1923 Act. Thus, to
sustain a claim against an employer under the 1923
Act, there must be a workman-employer relationship;
there must be a personal injury to the workman by
an accident; and that accident must arise out of and
in the course of his employment.
52. “Employer” is defined by clause (e) of sub-
section (1) of Section 2 of the 1923 Act as:
“employer includes any body of persons whether
incorporated or not and any managing agent of an
employer and the legal representative of a deceased
employer, and, when the services of a workman are
temporarily lent or let on hire to another person by
the person with whom the workman has entered into
a contract of service or apprenticeship, means such
other person while the workman is working for him.”
53. By use of the phrase “any body of persons
whether incorporated or not” the legislative intent is
clear as to include a juristic person whether
incorporated or not. However, to maintain a claim
against an “employer” under the 1923 Act, there
must be, (a) a workman and an employer
relationship; (b) the workman must suffer personal
injury in an accident; and (c) that accident must
arise out of and in the course of his employment.
54. At the time of the accident in question,
“workman” was defined by clause (n) of sub-section
(1) of Section 2 of the 1923 Act. As per the then
definition clause workman meant any one of the
persons specified in sub clauses (i), (ia) and (ii) of
Act; but would not include any person working in the
capacity of a member of the Armed Forces of the
Union.
55. Importantly, neither the 1923 Act nor The
General Clauses Act, 1897 defines “The Armed
Forces of the Union”. What is also interesting is that
the phrase “armed forces of the Union” came, with
effect from 26 January 1950, as a replacement for
the words “His Majesty’s naval, military or air forces”,
vide the “Adaptation of Laws Order, 1950” issued by
the President of India in exercise of powers under
Article 372(2) of the Constitution of India.
56. Clause (2) of Article 372 of the Constitution of
India confers power on the President of India to make
such adaptations and modifications in any law in
force in the territory of India, whether by way of
repeal or amendment, as may be necessary or
expedient, to bring the provisions of that law into
accord with the provisions of the Constitution.
57. In Ramesh Birch and others v. Union of
India and others4, this Court while dealing with the
executive power to extend an existing law of one
territory to another, had the occasion to deal with the
scope of such power of the Executive. Relying upon
the observations made by a Constitution Bench of
this Court In re. Delhi Laws Act, 1912, AIR 1952 SC
332, it was observed:
“23. But, these niceties apart, we think that Section
87 is quite valid even on the “policy and guideline”
theory if one has proper regard to the context of the
Act and the object and purpose sought to be achieved
by Section 87 of the Act. The judicial decisions
referred to above make it clear that it is not necessary
that the legislature should “dot all the i's and cross
all the t's” of its policy. It is sufficient if it gives the
broadest indication of a general policy of the
legislature. If we bear this in mind and have regard to
the history of this type of legislation, there will be no
difficulty at all. Section 87, like the provisions of Acts
I, II and III, is a provision necessitated by changes
resulting in territories coming under the legislative
jurisdiction of the Centre. These are territories
situated in the midst of contiguous territories which
have a proper legislature. They are small territories
falling under the legislative jurisdiction of Parliament
which has hardly sufficient time to look after the
details of all their legislative needs and requirements.
To require or expect Parliament to legislate for them
will entail a disproportionate pressure on its
legislative schedule. It will also mean the
unnecessary utilisation of the time of a large number
of members of Parliament for, except the few (less
than ten) members returned to Parliament from the
Union territory, none else is likely to be interested in
such legislation. In such a situation, the most
convenient course of legislating for them is the
4 1989 Supp (1) SCC 430
adaptation, by extension, of laws in force in other
areas of the country. As Fazl Ali, J. pointed out in
the Delhi Laws Act case [1951 SCC 568 : AIR
1951 SC 332 : 1951 SCR 747] it is not a power to
make laws that is delegated but only a power to
“transplant” laws already in force after having
undergone scrutiny by Parliament or one of the
State legislatures, and that too, without any
material change. There is no dispute before us —
and it has been unanimously held in all the
decisions — that the power to make modifications
and restrictions in a clause of this type is a very
limited power, which permits only changes that
the different context requires and not changes in
substance. There is certainly no power of
modification by way of repeal or amendment as is
available under Section 89.”
58. In the light of the above decision, it would be
useful to explore the purpose of the amendment
brought by the Adaptation Order of 1950 (supra) with
reference to Article 372(2) of the Constitution of
India. Indisputably, the 1923 Act is a pre-
independence statute therefore, on India being
declared a Republic by our Constitution, the use of
the phrase “His Majesty’s naval, military or air forces”
appearing therein became antithetical to our
Constitution. Hence, to make it in accord with our
Constitution, it was considered necessary to
substitute the said phrase with the phrase “armed
forces of the Union.” However, neither the
Constitution of India (see Article 366) nor The
General Clauses Act, 1897 or the 1923 Act defines
“armed forces of the Union”. Therefore, in our view,
mere declaration in Section 3 of the 1957 Act that the
RPF shall be an “armed force of the Union” is not
sufficient to take it out of the purview of the 1923
Act. In our view, what assumes importance is the
legislative intent. That is, whether by declaring a
member of the RPF as a member of the armed force
of the Union, the legislature intended to take away
the benefits which he would have otherwise got by
virtue of being a railway servant within the meaning
of Section 2 (34) of the 1989 Act.
59. The definition of a “Railway Servant” as
contained in Section 2 (34) of the 1989 Act was
amended vide Act No.51 of 2003, with effect from
1.7.2004. By such amendment, notwithstanding that
from 20.09.1985 the RPF was declared an armed
force of the Union, the definition of a Railway Servant
included a member of the RPF. Therefore, since a
railway servant continued to be a workman as per
Section 2(1)(n)(i) of the 1923 Act, the provisions of
the 1923 Act would continue to apply to a member of
the RPF as he does not belong to any of those
categories specified in Schedule II of the 1923 Act.
More so, when there is nothing in the Railways Act,
either new or old, which may exclude the applicability
of the 1923 Act on a railway servant. Rather, Section
128 of the 1989 Act makes it clear that right of any
person to claim compensation under Section 124 or
Section 124-A of the 1989 Act shall not affect the
right of any such person to recover compensation
payable under the 1923 Act. Likewise, Section 19 of
the 1957 Act, which was simultaneously amended
vide Act No.60 of 1985, with effect from 20.09.1985,
along with Section 3 of the 1957 Act, declaring RPF
as an armed force of the Union, did not make any
provision to exclude the applicability of the 1923 Act.
Not only that, Section 10 of the 1957 Act was also
amended vide Act No.60 of 1985. It too, declared
every member of the Force (RPF) to be regarded as
railway servant for all purposes other than Chapter
VIA of the 1890 Act, which relates to limitation on
duty hours, etc. Thus, in our considered view,
despite declaring RPF as an armed force of the
Union, the legislative intent was not there to exclude
its members or their heirs from the benefits of
compensation payable under the 1923 Act or the
1989 Act.
60. At this stage, we may notice that, though
Section 19 of the 1957 Act declared that nothing
contained in the Payment of Wages Act, 1936 or the
Industrial Disputes Act, 1947 or the Factories Act,
1948 or any corresponding law relating to
investigation and settlement of industrial dispute in
force in a State shall apply to members of the Force
(RPF), there is no exclusion of the applicability of the
provisions of the 1923 Act.
61. In light of the discussion above, we are of the
considered view that despite declaring RPF as armed
force of the Union, the legislative intent was not to
take it out of the purview of the 1923 Act. Issue no.
(i) is decided in terms above.
Issue No.(ii): Whether, on account of
availability of alternative remedy to apply for
compensation under Sections 124 and 124-A
of the 1989 Act, a claim under the 1923 Act
is maintainable?
62. The answer to issue no.(ii) lies in Section 128
of the 1989 Act. According to which, notwithstanding
the right to claim compensation under Section 124 or
Section 124-A of the 1989 Act, the right of a person
to claim compensation under the 1923 Act, or any
other law for the time being in force, is specifically
saved subject to the condition that he shall not be
entitled to claim compensation more than once in
respect of the same accident.
63. In the instant case, there is nothing to
indicate that the respondents’ claim under the 1923
Act was made after receiving compensation for the
same accident under any other Act or law. Hence,
the application under the 1923 Act was not barred
on account of there being an alternative remedy
under the 1989 Act. Issue no.(ii) is decided
accordingly.
64. For the reasons detailed above and in view of
our answer to the issues framed above, we hold that
the claim set up by the respondents under the 1923
Act was maintainable. The appeal lacks merit and is
accordingly dismissed. The interim order, if any,
stands discharged. Parties to bear their own costs.
(MANOJ MISRA) New Delhi; September 26, 2023