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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 ..... the Multi-State Co-operative Societies Act, 1984. It is in the banking business and is governed by the provisions of the Banking Regulation Act, 1949 (for short "the BR Act"). The respondent is a trade union and represents workmen employed 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, when the expression "Banking Company" was expanded in 1965 to include co-operative banks, such co-operative banks also became banking companies under the BR Act and if any of these newly included banking companies operate in more than one State, then they also become multi-State Banking 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 2 of the ID Act. Section 2(bb) which is at the centre of controversy reads as under: "2(bb). "Banking Company" means a banking company as defined in Section 5 of the Banking Companies Act, 1949 (10 of 1949) having branches or other establishments in more than one State and includes (the Export-Import Bank of India) (the Industrial Reconstruction Bank of India), (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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of sub-section (bb) of Section 2 of the ID Act by the 1949 Act it was a mere reference to the Banking Companies Act, 1949 (later re-christened as the Banking Regulation Act) or the intendment of the legislature was to incorporate the said definition as it is in the ID Act? 14. Before adverting to the said core issue, we may briefly notice the distinction between the two afore mentioned concepts of statutory interpretation, viz., a mere reference or citation of one 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, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. * * * In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Preemption Act and the expression 'agricultural land' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it." 17. The same principle was applied in Bolani Ores Ltd. vs. State of Orissa . In that case 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 " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and adoption of provisions by mere reference or citation is not too easy to highlight. The distinction is one of difference in degree and is often blurred. The fact that no clear-cut guidelines or distinguishing features have been spelt out to ascertain whether it belongs to one or the other category makes the task of identification difficult. The semantics associated with interpretation play their role to a limited extent. Ultimately, it is a matter of probe into legislative intention and/or taking an insight into the working of the enactment if one or the other view is adopted. Therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal words, then there would have been no reason whatsoever to keep amending the definition from time to time. In our view, therefore, the language of Section 2(bb) clearly demonstrates the legislative intent not to bring within its ambit all the banks transacting the business of banking in India. 24. We are, therefore, of the opinion that introduction of the Banking Companies Act, 1949 in clause (bb) of Section 2 of the ID Act is a case of incorporation by reference; it has become its integral part and therefore, subsequent amendments in the BR Act would not have any effect on the expression "Banking Company" as defined in the said Section. 25. At this juncture, we may also 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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