JUDGMENT Om Prakash J.
1. Swadeshi Cotton Mills Company Limited and its six textile undertakings, are engaged in the manufacture and production of different varieties of cloth and yarn. The management of the said textile undertakings was taken over by the Central Government under the Notification dated April 13, 1978 under Section 18AA of the industries (Development and Regulation) Act, 1951. The Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1986 came to be passed in 1986 (for short, the Act of 1986). Subsection (1) of Section 3 of the Act 1986, states that on the appointed day every textile undertaking and the right, title and interest of the Company in relation to every such textile undertaking shall, by virtue of this Act, stand transferred to and shall vest in the Central Government. Subsection (2) of Section 3 declares that every such textile undertaking which stands vested in the Central Government by virtue of Sub-section (1) shall, immediately after it has so vested, stand transferred to, and vested in the National Textile Corporation. By Notification dated April 13/14, 1978 the National Textile Corporation Limited, New Delhi-a Government of India undertaking-was appointed authorised person to manage the undertakings for and on behalf of the Central Government.
2. By virtue of Sections 38 and 39 of the Employees State Insurance Act, 1948 (briefly, 'the Act of 1948'), which is, admittedly, applicable to the employees of the undertakings, all the employees in the aforesaid undertakings are to be insured and both employer and the employees have to pay contribution to the Employees' State Insurance Corporation (for brevity sake "E.S.I. corporation"). It is averred in paragraph 8 of the writ petition that "the management has framed a scheme that if employees exceed the normal production, they would be paid additional remuneration. However, this amount of extra remuneration is not a regular payment nor is payable to a workman regularly on account of employment but depends on certain conditions to be fulfilled by employees and is called' incentive'. In paragraphs 10 and 15 of the writ petition, it is averred that incentive does not form part of the wages and, as such no contribution need be paid by the employer on such incentive. It is contended that without giving any opportunity of hearing, the respondent issued impugned demand notice dated June 7, 1982 (Annexure '2' to the writ petition) calling upon the petitioner to pay a sum of Rs. 28941.90 within fifteen days. The petitioner, namely, the Management of National Textile Corporation Limited, which was appointed as authorised person, then addressed a letter dated July 29, 1982 to the respondent denying the liability to pay contribution on incentive. It is averred that without deciding such objections of the petitioner, the respondent threatened to take coercive measure against the petitioner to recover the amount of impugned demand notice. This is how by this petition the petitioner prayed for quashing the impugned demand notice dated June 7, 1982 (Annexure '2' to the writ petition).
3. In paragraph 8 of the counter-affidavit filed by the respondent it is sated that "extra remuneration given to the employees were also part of the wages, according to the Employees State Insurance Act, and the employer is also liable to pay contribution on that extra remuneration."
4. From the pleadings of the parties, it appears that they are at variance on the question; whether remuneration paid for extra production is part of wages and whether employer is liable to make contribution on such amount.
5. However, learned counsel for the petitioner urged before us that even if the contention of the respondent that contribution is payable on incentive as well, is assumed to be correct for argument sake, the amount sought to be recovered by the impugned notice (Annexure 2 to the writ petition) is not recoverable from the petitioner as that liability related to the period anterior to the 'appointed day' defined in Clause (a) of Section 2 of the Act of 1986, meaning April 1, 1985. Sub-section (1) of Section 5 of the Act of 1986, states that every liability of the Company in relation to the textile undertakings in respect of any period prior to the appointed day, shall be the liability of the Company and shall be enforceable against it and not against the Central Government or the National Textile Corporation. Section 5(2)(a) of the said Act, which is clarificatory in nature, declares that save as otherwise expressly provided in this section or in any other section of this Act, no liability of the Company in relation to the textile undertakings in respect of any period prior to the appointed day, shall be enforceable against the Central Government or the National Textile Corporation. From the impugned notice (Annexure '2' to the writ petition) it is manifest that the liability related to the period from December 1980 to November 1981. It clearly means that the liability came to be accrued much before the appointed day i.e., April 1, 1985. In view of the provisions as contained in Section 5(1) and (2) of the Act of 1986, such liability, in no case can be enforced against the Central Government or the National Textile Corporation (authorised person) in whom the textile undertakings stood vested.
6. Counsel for the respondent relying on Section 93A of the Act, 1948, argued that both the employer and the person to whom the establishment was transferred, shall jointly and severally be liable to pay the amount due in respect of any contribution or any other amount payable under this Act. Section 93A relates to the cases involving transfer of the factory or establishment from one person to another. If a factory is transferred either in whole or part by an employer by sale, gift, lease or licence or in any other manner whatsoever, then by virtue of Section 93A the employer or the transferee to whom the factory is so transferred shall jointly and severally be liable to pay the amount due in respect of any contribution payable under this Act in respect of the periods upto the date of such transfer, Relying on the delineated portion occurring in Section 93A, the Counsel for the respondent submitted that the National Textile Corporation, to whom the textile undertakings stood transferred and in whom they stood vested, is jointly and severally liable to pay the demand raised under the impugned notice (Annexure 2 to the writ petition). Section 93A can be invoked by the respondent only when there was transfer of undertakings. Admittedly, the undertakings in question had been acquired by the Central Government under the Act of 1986. The question is whether acquisition amounts to transfer? For convenient appreciation, Section 93A of the Act of 1986 is reproduced below.
"Where an employer in relation to a factory or establishment, transfers that factory or establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the factory or establishment is so transferred shall jointly and severally be liable to pay the amount due in respect of any contribution or any other amount payable under this Act in respect of the periods upto the date of such transfer".
Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.
Emphasis ours
7. The undertakings in question were not transferred to the Central Government by way of sale, gift, lease or licence. The submission of the Counsel for the respondent is that the expression 'in any other manner' occurring in Section 93A, is wide enough to take 'acquisition by Central Government' within its sweep. We do not agree with this submission. The phrase 'in any other manner' applying the principle of ejusdem genesis will take its shade or colour from the proceeding words, namely, sale, gift, lease or licence. Transfer by sale, gift, lease or licence is always voluntary and that element is missing in acquisition. The Expression ' in any other manner' appearing in Section 93A, cannot be applied to a mode of transfer which is not voluntary. Acquisition is always done in public interest by Government and in acquisition the compulsion is more dominant than consent, or willingness. We are therefore, of the considered view that the expression 'in any another manner' occurring in Section 93A of the Act of 1986, cannot take within its sweep the transfer which is a consequence of acquisition. The Counsel for the respondent made a queer argument before us that the Act of 1986 itself uses the term transfer in Section 3 and elsewhere. An Act has to be interpreted in totality and not by picking up solitary words. The entire Act of 1986 is aimed at acquisition and that does not refer to a transfer by way of sale, gift, lease or licence or in the like manner.
8. In our view there was no transfer of the undertakings in question to the Central Government by the owners thereof and, therefore, Section 93A will have no application to the case in , hand.
9. The Counsel for the respondent then relied on Vemly Hotels v. Kuldeep Singh and Ors. 1987 (55) FLR. 183. In this case 'Hotel Bombay International' belonged to a trust. By agreement dated September 24, 1968, the trustees allowed Merchant Hotels Private Limited to conduct the hotel for a period of five years from August 1, 1968. The hotel was then conducted by Merchant Hotels Private Ltd. The Trustees executed another agreement dated May 13, 1979 in favour of Merchant Hotels or Vemly Hotels, but the ownership was retained by the Vemly Hotels. Whereby Vemly Hotels were allowed to conduct the hotel from August 1, 1978 to March 31, 1983. The question was whether Merchant Hotels Private Limited and Vemly Hotels were liable to pay contribution. On these facts, the Bombay High Court held that there was not transfer of ownership in favour of Merchant Hotels or Vemly Hotels, but the ownership was retained by the trustees. It was held that the trustees continued to be the owners of the hotel all along and the trustees simply transferred the interest of conducting the hotel initially in favour of Merchant Hotels Private Limited and subsequently in favour of Vemly Hotels. Taking such a view, it was held that the liability of the trustees is squarely attracted under the provisions of Section 93A of the Act and the trustees and the person conducting the hotel is obviously jointly and severally liable to pay the amount in respect of the contribution. The Bombay High Court took this view taking cognizance of the fact that Section 93A was inserted with effect from September 1, 1975 with an object that the liability in respect of payment of any contribution under the Act is not defeated by transfer of any interest in the factory or establishment to which the provision of the Act apply. The trustees, no doubt, being the owners were employers and their agents, namely, Merchant Hotels Private Limited and Vemly Hotels were immediate employers and were, therefore, liable to pay contribution. In this authority no question was involved whether acquisition amounts to transfer under Section 93A of the Act and hence it is misplaced.
10. Assuming but not accepting that acquisition made under the Act of 1986 comes within the ambit of transfer, still the provisions of Section 93A will not be enforced against the petitioner. Section 24, falling in Chapter VII entitled "Miscellaneous" of the Act of 1986 clearly provides that the provisions of the Act of 1986 shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree of order of any court, tribunal or other authority. It is, thus patent that if there is any inconsistency between the provisions of the Act of 1986 and any other law for the time being in force, then by virtue of Section 24 of the Act of 1986, the provisions of the Act of 1986 would over-ride the provisions as contained in any other law. Section 24 of the Act of 1986 furnishes a complete answer to resolve inconsistency if any arising in the provisions contained in Section 5 of the Act of 1986 and the provisions as contained in Section 93A of the Act, 1948. This being so it must be held that Section 93A of the Act, 1948 will yield to the provisions of the Act of 1986 to the extent of inconsistency and if that is so, the provisions contained in Section 5 of the Act of 1986, will prevail over Section 93A of the Act, 1948. The consequence, therefore, is that neither the Central Government nor the National Textile Corporation - an authorised person-is liable to pay the liability relating to the period anterior to the appointed day.
11. No other submission was made before us and we, therefore, refrain from entering into the merits of the question whether the petitioner is liable to pay contribution on the incentive or remuneration paid to the employees for extra production.
12. In the result, the petition succeeds and is allowed. Impugned demand notice dated June 7, 1982 (Annexure 2 to the petition) is quashed. No order as to costs.