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TMI Blog2007 (3) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... loyed in the Bank. 4. Mainly aggrieved by transfer of eleven employees from one place to another, alleging it as an act of victimisation, the respondent filed a complaint against the Bank under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "the MRTU & PULP Act"), along with an application for interim relief, before the Industrial Court at Mumbai. While resisting the complaint, the Bank raised certain preliminary issues of jurisdiction and maintainability of the complaint under the MRTU & PULP Act. The plea of the Bank was that as it was engaged in the business of banking and is a Banking Company as defined in Clause (c) of Section 5 of the BR Act, the appropriate government would be the Central Government and therefore, the provisions of the MRTU & PULP Act, a State Act, were not applicable. The Industrial Court upheld the objection and ordered that the complaint may be returned to the respondent for seeking relief before an appropriate forum. 5. The respondent questioned the validity of the said order by preferring a writ petition in the High Court. Allowing the writ petition, the learned single Judge cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anking Companies for the purpose of Section 2(bb) of the ID Act. It is asserted that introduction of definition "Banking Company" in the first part of Section 2(bb) of ID Act is a case of referential legislation and not legislation by incorporation. Laying emphasis on the Industrial Disputes (Banking and Insurance Companies) Act, 1949 (for short "the IDBIC Act") it was submitted by the learned counsel that the IDBIC Act mandates that in respect of multi-State Banking and Insurance Companies the appropriate Government for all industrial disputes would only be the Central Government and, therefore, the expression "Banking Company" in Section 2(bb) of the ID Act must be read in conjunction with the object and purpose of IDBIC Act so as to bring ID Act into syne with the IDBIC Act. The submission is that being aware of the malice in the industrial field relating to multi-State Banks and Insurance Companies, IDBIC Act was enacted to bring all multi-State Banking and Insurance Companies under the control of the Central Government as appropriate Government, to obviate the difficulties being faced by the banks and insurance companies, having branches outside one State, inter-alia in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), (the Industrial Development Bank of India), (the Small Industries Development Bank of India established under section 3 of the Small Industries Development Bank of India Act, 1989), the Reserve Bank of India, the State Bank of India (a corresponding new bank constituted under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings Act, 1970 (5 of 1970) (a corresponding new bank constituted under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), and any subsidiary bank), as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959)." From a bare reading of the Section it is clear that in order to fall within the meaning of this definition, a "Banking Company" has to satisfy two requirements, viz: (i) it should be a "Banking Company" as defined in Section 5 of the Banking Companies Act, 1949 and (ii) it should have branches or other establishments in more than one State. It may also be noted that some banks, by name, have specifically been included in the definition. Section 5 of the BR Act gives interpretation to various expressions used in the said Act. As per clause (c) of Section 5 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute in another and incorporation by reference. Legislation by incorporation is a common legislative device where the legislature, for the sake of convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of verbatim reproducing the provisions, which it desires to adopt in another stature. Once incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. On the contrary, in the case of a mere reference or citation, a modification, repeal or re-enactment of the statute, that is referred will also have effect on the stature in which it is referred. The effect of "incorporation by reference" was aptly stated by Lord Esher, M.R. In re: Wood's Estate, Exparte Her Majesty's Commissioners of Works and Buildings in the following words at page 615: "If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase this Court was considering the question regarding the interpretation of Section 2(c) of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (for short "the Taxation Act"). This Section when enacted adopted the definition of "motor vehicle" contained in Section 2(18) of the Motor Vehicles Act, 1939. Subsequently, Section 2(18) was amended by Act 100 of 1956 but no corresponding amendment was made in the definition contained in Section 2(c) of the Taxation Act. The argument advanced was that the definition in Section 2(c) of the Taxation Act was not a definition by incorporation but only a definition by reference and the meaning of "motor vehicle" in Section 2(c) must, therefore, be taken to be the same as defined from time to time in Section 2(18) of the Motor Vehicles Act, 1939. The argument was rejected by this Court and it was held that this was a case of incorporation and not reference and the definition in Section 2(18) of the Motor Vehicles Act, 1939, as then existing, was incorporated in Section 2(c) of the Taxation Act and neither repeal of the Motor Vehicles Act, 1939 nor any amendment in it would affect the definition of "motor vehicle" in Section 2(c) of the Taxati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the kind of language used in the provision, the scheme and purpose of the Act assume significance in finding answer to the question. (See: Collector of Customs vs. Sampathu Chetty & Anr. ). The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end. (See: Maharashtra State Road Transport Corporation vs. State of Maharashtra & Ors. ) Thus, the question for determination is to which category the present case belongs. 21. The plain language of Section 2(bb) of the ID Act makes the intention of the legislature very clear and we have no hesitation in holding that reference to Section 5 of the Banking Companies Act, 1949 in the said provision is an instance of legislation by incorporation and not legislation by reference. 22. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949 used the word "means .. and includes" and was confined to a "Banking Company" as defined in Section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one province and includes Imperial Bank of India. Similarly, Section 2(kk), which was also introduced by Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider an alternative submission made on behalf of the Bank that even if it is assumed that the provisions of Section 5 of the BR Act were introduced into Section 2(bb) of the ID Act by way of legislative incorporation, two of the exceptions, namely, exceptions (c) and (d), carved out by this Court in State of Madhya Pradesh vs. M.V. Narasimhan and reiterated in P.C. Agarwala's case (supra), would apply in the instant case. The exceptions so enumerated are: (a) Where the subsequent Act and the previous Act are supplemental to each other; (b) Where the two Acts are in parimateria; (c) Where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) Where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act. 26. In our view, there is no substance in the contention. The ID Act is a complete and self contained Code in itself and its working is not dependant on the BR Act. It could not also be said that the amendments in the BR Act either expressly or by necessary intendment applied to the ID Act. We, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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