K. Bhaskaran, C.J.
1. What in effect and substance, the order of reference made by the Division Bench on 20-12-1978 demands is an examination, by this Full Bench of five judges, of the correctness of the view expressed concurrently by two Full Benches of this Court (reported in Visakhapatnam District Marketing Co-operative Society Ltd. v. Govt. of Andhra Pradesh, (1977) 1 APLJ (HC) 160 : (1977 Lab IC 959) and Sri Brindavan Hotel v. Conciliation Officer, (1977) 2 Aplj (HC) 78 : (1977 Lab IC 1572), (hereinafter referred to respectively as the First Full Bench and the Second Full Bench) on which considerable reliance is placed by the Writ Petitioners, that the provisions of the Andhra Pradesh Shops and Establishments (Act XV) of 1966, (the Central Act XIV) of 1947 (the I.D. Act) would have no application, to a dispute, arising out of the terminations of the service of an employee in an establishment/shop, answering the description of those terms, as defined in sub-ss. (10) and (21) of S. 2 of the Shops Act not sponsored by a Union or a group of workmen.
2. The Writ Petitions are by the managements of certain establishment/shops; and the contesting respondents are the employees (as defined in S. 2(8) of the Shops Act) of those establishments/shops whose services had been terminated by the employers (as defined in S. 2(9) of the Shops Act). The awards granting reliefs to the said employees, passed by the Labour Court, on reference to it of the disputes, arising out of the termination of their services, by the Government under S. 10(1)(c) of the I.D. Act are under challenge in these writ petitions. The order made by the Division Bench on 20-12-1978, referring the question of law involved to a larger Bench (of five judges) is in W.P.Nos. 783, 784 and 1639 of 1977 and the other two writ petitions have been, in course of time, ordered to be posted along with the above mentioned cases, as it was considered that the same question of law arose therein also.
3. The First Full Bench in Para 15 (at pages 169 and 170 of APLJ) : (Para 7, at p. 964 of 1977 Lab IC) recorded the opinion :
'The disputes of an individual workman in regard to termination of services, squarely fall within the filed covered by Ss. 40 and 41 of the Shops Act and we have, therefore, no doubt that there is repugnancy to that extent between the Shops Act and the I.D. Act.'
That Full Bench, however, did not express any opinion on the legal point that would arise if the individual dispute of a workman in an establishment/shop was supported either by the Union to which he belonged or, in the absence of a Union, by a Number of workmen, and such a matter was sought to be referred for adjudication under S. 10(1) of the Industrial Disputes Act. The Second Full Bench, after having referred to the reasoning of the First Full Bench, in para 13 (at page 86 of APLJ) : (para 16, at p. 1578 of 1977 Lab IC) stated as follows :
'This decision has set at rest the controversy that so far as the State of Andhra Pradesh is concerned an individual dispute or difference between an employer and an employee not espoused by the union or a number of workmen is governed by the Shops Act. They have expressed no opinion on the legal position which would arise if an individual dispute of an individual workman is espoused by the Union or in the absence of an union by a number of workmen. In this Full Bench reference we are required to consider the question on which the earlier Full Bench has expressed no opinion. In the instant case a large number of workmen have been discharged from their service by the petitioner-hotel and their case has been espoused by the Union, the second respondent. Is such a dispute, under the circumstances stated above, governed by the Industrial Disputes Act or by the Shops Act?'
The question of law, on which the First Full Bench did not express any view, was answered by the Second Full Bench, after a fairly elaborate discussion, in the concluding para of the judgment (para 31 at page 93 of APLJ) : (para 36, at p. 1583 of 1977 Lab IC) which reads as follows :
'In the result we are of the opinion that the conciliation proceedings instituted before the first respondent at the instance of 2nd respondent, do not, for the reasons stated in this judgment, suffer from want of authority on the part of the first respondent. The 2nd respondent has the right to agitate this question only under the Industrial Disputes Act, 1947. The Shops Act has no application to the instant case.'
4. It would appear that before the Division Bench, which passed the order of reference, a contention was raised that there existed conflict between the decisions of the two Full Benches; and that the view expressed by the First Full Bench on the question of law had been shaken by the decision of the Second Full Bench. This contention is evidently misconceived. A close look at the two Full Bench decisions would easily convince anyone that there was not only no conflict, but also no scope for conflict, between the two. The third respondent in the First Full Bench case was an employee in a co-operative society; the dispute arising out of the termination of his service, which was not espoused by a union or a group of workmen, was referred to the Labour Court for adjudication by the Government under S. 10(1)(c) of the I.D. Act.
In the Second Full Bench case, the Conciliation Officer, the first respondent therein, had initiated proceedings for settlement of the dispute at the instance of the second respondent-Employees' Union of a hotel with respect to the discharge from service of a number of employees in the hotel. The Co-operative Society and the hotel answered the description of 'establishment' and 'shop' as defined in the Shops Act. The competence of the Government to refer the dispute relating to the third respondent, an individual employee, to the Labour Court for adjudication was the issue before the First Full Bench. What was in issue before the Second Full Bench was the locus standi of the second respondent-union to approach the first respondent for settlement by conciliation of the dispute relating to the termination of service of a number of employees of the hotel.
The First Full Bench allowed the Writ petition, quashing the order of reference of the dispute to the Labour Court, holding that to the dispute relating to the termination of service of an individual employee in an establishment/shop not espoused by a union or a number of workmen the provisions of the Shops Act applied to the exclusion of the provisions of the I.D. Act. The Second Full Bench, on the other hand, dismissed the writ petition, holding that the second respondent a union had the right to agitate the question relating to the discharge of the employee of the hotel under the Industrial Disputes Act and that the Shops Act had no application to that case. Thus the issues raised for decision before the two Full Benches being different there was not the slightest scope for conflict. All that we have to notice is that the second Full Bench did, incidentally, express the view that the ruling given by the First Full Bench that to the dispute arising out of the termination of the service of the individual shop employee, it was the relevant provison of the Shops Act, not that of the I.D. Act, that applied, had set at rest the controversy on that question.
5. In all these writ petitions, the contest centres round the question of competence of the Government to refer, and the jurisdiction of the Labour Court to adjudicate, the dispute arising out of the termination of individual employees not backed up by a union or a group of workmen. That being the position on the facts of the case, we need examine only the correctness of the ruling given by the First Full Bench as the ruling given by the Second Full Bench relating to the legal position regarding a dispute arising out of the service of shop employees, espoused by a union, would not be strictly relevant for our purpose.
6. True it is we have found, there is no conflict between the decisions of the two Full Benches on the question of law at issue. It would, therefore follow that the writ petitions on hand may have to be allowed and the awards of the Labour Court quashed, if we agree with the dictum laid down by the First Full Bench that so far as the State of Andhra Pradesh was concerned, an individual dispute or difference between an employer and an employee, not espoused by the union or number of workmen, was governed by the Shops Act. It has, however, become necessary to scrutinise the reasons given and conclusions reached by the First Full Bench, in the light of the contentions raised by the counsel for the contesting respondent-employees who made a fervent plea for a reconsideration of the Full Bench ruling, as according to them, for a just and proper disposal of the disputes, it was eminently necessary, even when it might be found that there was no conflict between the decisions of the Full Benches.
7. The discussion on the question of law, (contained in para 15 at pages 169-170 of APLJ) : (para 7 at p. 964 of 1977 Lab IC) of the First Full Bench is of considerable importance when we proceed to examine whether the ruling given by that Full Bench represents the correct legal position in relation to disputes arising out of the termination of the service of an individual shop employee whose cause is not espoused either by a union or, in the absence of a union, by a group of workmen. It may no doubt, have a bearing on the questions relating to the locus standi of the individual employee to approach the appropriate authority for conciliation under S. 12 of the I.D. Act; the Government's competence to refer the dispute for adjudication on receipt of a failure report from the Conciliation Officer under S. 10(1)(c) of the I.D. Act; and the jurisdiction of the Labour Court to entertain and decide such dispute referred to it under S. 15 of the I.D. Act.
The First Full Bench is categorical that there is no inconsistency in the actual terms of the two statutes, the Shops Act and the I.D. Act. It is also of the opinion that the I.D. Act does not expressly provide that it is intended to be a complete and exhaustive Code so as to render the Shops Act inoperative on that account. According to it, a consideration of the preamble as well as the various provisions of the I.D. Act left no room for doubt that it was a statute of very wide import which had been enacted for the settlement of industrial disputes, in general, in the interest of industrial peace and harmony, and that the Shops Act, on the other hand, covers a much narrower field, in so far as it applies only to shops and establishments not to other industries, and also in so far as it is concerned only with providing remedies for certain types of disputes between an individual workman and the shop or establishment in which he might be employed.
It has unequivocally declared. 'There can, therefore, be no doubt that the two enactments do not cover the same field'. After having said this much in the earlier part of this para (para 15 of APLJ) : (para 7 of Lab IC) in the later part of the para, the Full Bench has come to the conclusion that it is the Shops Act, not the I.D. Act, that applies to the individual dispute of a shop employee. For the sake of precision, we would quote that passage itself from the judgment :
'Even if the Shops Act and the I.D. Act do not coincide in regard to the entire field they cover, the question which still arises for our consideration is whether there is any repugnancy pro tanto by reason of the insertion of S. 2A in the I.D. Act, whereby disputes raised by an individual workman in regard to termination of services, which are not espoused by the Union or by other workmen, are also brought within the ambit of that Act so that a reference can be made under S. 10(1) of the I.D. Act in regard to termination of services squarely fall within the field covered by Ss. 40 and 41 of the Shops Act and we have, therefore, no doubt that there is repugnancy to that extent between the Shops Act and the I.D. Act. In view of the fact that the Shops Act has been assented to by the President, the provisions of the Shops Act must prevail by reason of Cl. (2) of Art. 254 of the Constitution, in regard to disputes of an individual workman to which S. 2A of the I.D. Act refers.'
8. On a careful analysis of the reasoning adopted and the conclusions reached by the First Full Bench in para 15 (of APLJ) : (para 7 of Lab IC), of the judgment, one might be tempted to think that there are contradictions in terms. We have already noticed that the Full Bench was of the opinion that there was no inconsistency in the actual terms of the two statutes, the I.D. Act was not intended to be a complete and exhaustive Code as to render the Shops Act inoperative on that account; the two enactments did not cover the same field, and the I.D. Act was a statute of very wide import while the Shops Act covered a much narrower field. In spite of having expressed this view, the Full Bench reached the conclusion that the disputes of an individual workman in regard to termination of services squarely fell within the field covered by Ss. 40 and 41 of the Shops Act, and that to that extent, there was repugnancy between the Shops Act and the I.D. Act. In view of the fact that the Shops Act had been assented to by the President, the Full Bench was of the opinion that the provisions of the Shops Act must prevail over the provisions of the I.D. Act by reason of Cl. (2) of Art. 254 of the Constitution in regard to disputes of an individual workman to which S. 2A of the I.D. Act referred.
9. A basic error, we are afraid, appears to have crept in into the judgment of the Full Bench in concluding that there existed repugnancy between the two statutes to the extent that, in its opinion, there was overlapping between Ss. 40 and 41 of the Shops Act, on the one hand, and S. 2A of the I.D. Act on the other; and that because the President's assent to the Shops Act was sought and obtained the Shops Act prevailed over the I.D. Act on account of the operation of Cl. (2) of Art. 254 of the Constitution.
10. The Industrial Disputes Act as it originally stood was designed to provide for resolving industrial disputes concerning the employment non-employment, terms of employment and the conditions of labour of the employees. Section 12 providing for conciliation and settlement; and S. 10 for compulsory adjudication and award, are the significant provisions in the Act; the other provisions are ancillary in character to make effective the two machineries provided under those Sections. Disputes in contemplation were collective disputes as distinct from a dispute arising from the individual grievance of one employee, unsupported by the other employees. The insertion of S. 2A in the I.D. Act, by amending Act XXXV of 1965 with effect from 1-12-65 enlarged the definition of 'industrial dispute' as defined in S. 2(k) of the I.D. Act so as to bring within its fold matters relating to the discharge, dismissal, retrenchment or termination of the service of an individual workman also, with the result that the Government could refer such industrial dispute for adjudication under S. 10(1) of the I.D. Act even when his cause is not supported by a union or other workmen. We are extracting below Ss. 2(k) and 2A of the I.D. Act and Ss. 40 and 41 of the Shops Act.
'(k) industrial dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the condition of labour of any person;
2-A. Dismissal etc., of an individual workman to be deemed to be an industrial dispute;
Where any employer discharges, dismisses retrenches or otherwise terminates the service of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of which discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute.'
'40. Conditions for terminating the services of an employee and payment of gratuity :-
(1) No employer shall without a reasonable cause and except for misconduct, terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee at least one month's notice in writing or wages in lieu thereof (and in respect of an employee who has been in his employment continuously for a period of not less than 5 years' gratuity amounting to fifteen days' average wages) for each year of continuous employment.
Explanation :- For the purpose of this sub-section (a) the expression 'wages' does not include overtime wages;
(b) the expression 'average wages' means the daily average of wages for the days an employee actually worked during the thirty days immediately preceding the date of termination of service;
(c) an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months if he has worked for not less than one hundred and twenty-days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee;
(d) where the total continuous employment is for a fraction of a year or extends over a fraction of a year in addition to one or more completed years of continuous employment such fraction, if it is not less than a half year shall be counted as a year of continuous employment in calculating the total number of years for which the gratuity is to be given.
(2) Where a gratuity is payable under sub-section (1) to an employee, he shall be entitled to receive his wages from the date of termination of his service until the date on which the gratuity so payable is actually paid subject to a maximum of wages for two months.
(3) An employee, who has completed the age of sixty years or who is physically or mentally unfit having been so declared by a medical certificate, or who wants to retire on medical grounds or to resign his service may give up his employment after giving to his employer notice of at least one month in the case of an employee of sixty years of age, and fifteen days in any other case; and every such employee and the dependent of an employee while in service, shall be entitled to receive a gratuity as provided in sub-sec. (1). He shall be entitled to receive the wages from the date of giving up the employment until the date on which the gratuity so payable is actually paid, subject to a maximum of wages for two months.
(4) The services of an employee shall not be terminated for misconduct except, for such acts or omissions and in such manner, as may be prescribed.
Explanation : For the purpose of this Section, the term 'employee' shall include part-time employee also.'
41. Appointment of authority to hear and decide appeals arising out of termination of service.
(1)(a) The Government may, by notification appoint for any areas as may be specified therein, an authority to hear and decide appeals arising out of the termination of service of employees under S. 40
(b) Any employee whose service has been terminated may appeal to the authority concerned within such time and in such manner as may be prescribed.
(2) The authority may after inquiry in the prescribed manner dismiss the appeal or direct the reinstatement of the employee with or without wages for the period he was kept out of employment or direct payment of compensation without reinstatement or grant of such other relief as it deems fit in the circumstances of the case.
(3) Against any decision of the authority under sub-s. (2) a second appeal shall lie to the Labour Court constituted under S. 7 of the Industrial Disputes Act 1947, within thirty days from the date of communication of the decision and the decision of the Labour Court on such appeal shall be final and binding on both the employer and the employee and shall be given effect to within such time as may be specified in the order of that Court.
(4) Any amount directed to be paid under this section may be recovered;
(a) if the authority is a Magistrate by the authority, as if it were fine imposed by him as Magistrate; and
(b) if the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate.'
11. The object of the I.D. Act, as its preamble would indicate is mainly to make provision for the investigation and settlement of industrial disputes; and applying the pith and substance, its field test of legislation may have to be traced to Entry 22 in Concurrent List (List III in Schedule VII to the Constitution). The main object of the Shops Act, as could be gathered from its preamble, is the regulation of conditions of work and employment in shops, commercial establishments, restaurants, theatres and other establishments; and these might more appropriately fall within Entries 23 and 24 of the Concurrent list.
12. In spite of the First Full Bench having found that the two enactments (the I.D. Act and the Shops Act) did not cover the same field, and there was also no inconsistency in the actual terms of the two Acts, it came to the conclusion that the individual dispute of a shop employee squarely fell within the ambit of Ss. 40 and 41 of the Shops Act; and to that extent, there was repugnancy between the I.D. Act and the Shops Act. The main reason for holding that Ss. 40 and 41 of the Shops Act prevailed over S. 2A of the I.D. Act according to the Full Bench, was by the operation of Cl. (2) of Art. 254 of the Constitution it had to be so, inasmuch as the Shops Act had been assented to by the President.
13. Keeping its federal character in view our Constitution, which provides for a Central Legislature and the State Legislatures, has evolved a scheme for the distribution of the legislative powers and the field of legislation between the Centre and the States under Art. 246 read with Art. 254 and the three Lists in Sch. VII thereto. Those two Articles and Entries Nos. 22, 23 and 24 in the Concurrent List (with which alone we are mainly concerned) read as follows :
'246. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Sch. (in this Constitution referred to as the 'Union List').
(2) Notwithstanding anything in Cl. (3) Parliament, and subject to Cl. (1) the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Sch. (in this Constitution referred to as the 'Concurrent List').
(3) Subject to the Clauses (2) and (1), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II. in the Seventh Sch. (in this Constitution referred to as the 'State List').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by the Parliament which Parliament is competent to enact, to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Cl. (2) the law made by Parliament whether passed before or after the law made by the Legislature of such State or as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by parliament or an existing law with respect to that matter then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matters including a law, adding to, amending, varying or repealing the law so made by the Legislature of the State.'
Seventh Schedule. List III
22. Trade Unions: Industrial and labour disputes.
23. Social security and social insurance employment and unemployment.
24. Welfare of labour including conditions of work, provident funds, employers' liability workmen's compensation, invalidity and old age pensions and maternity benefits.'
14. Broadly speaking, the Parliament or the Centre has exclusive legislative powers over the matters enumerated in List I. The matters in List II are the exclusive preserve of State Legislatures. Matters on which both the Centre and the States could legislate are found in List III of the Concurrent List. It may sometimes happen that in the course of making a law, one may incidentally trench upon a subject assigned to the other. This incidental encroachment, however, is not considered bad, for the reason that the entries in the Lists have to be widely construed and some amount of overlapping could not altogether be avoided. If the legislation is, in pith and substance, on a matter assigned to one legislative body, an incidental encroachment into the territory of the other could be considered permissible. Pith and Substance and 'incidental encroachment' are the doctrines evolved by Courts to ensure that the federal machinery could function without serious friction.
In case of conflict between the entries in Lists I and IIthe question would be one of competency, to be decided with reference to the pith and substance of the matter, not one of repugnancy. Repugnancy as has been pointed out by the Supreme Court in Hoechst Pharmaceuticals Ltd. v. State of Bihar, : [1985]154ITR64(SC) , would arise only when both the legislative bodies operate in a field common to them i.e. when they simultaneously legislate on the same matter in the Concurrent List, and speak in different voices. Inconsistency would arise when the provisions of two laws could not logically exist at the same time, or when they clash impose contradictory duties or confer contradictory rights. Where there is direct conflict between two provisions, or where one could not be obeyed without disobeying the other, a clear case of repugnancy might appear.
15. We do not find any substance in the argument that the very fact that the President's assent was sought and obtained, established beyond doubt that there was repugnancy between the two legislations. There is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governor to reserve it for the assent of the President. There might be a genuine doubt about the applicability of any of the provisions of the Constitution which required the assent of the President to be given to it in order that it might be effective as an Act. If the Governor in exercise of his discretion decided to reserve the Bill in such a situation for consideration of the President to avoid any future complication, that act could not be put forward as a proof of the existence of repugnancy between the Parliamentary enactment and the Bill which had been reserved for the assent of the President.
16. The landmark decisions of the Supreme Court in Zaverbhai v. State of Bombay, : [1955]1SCR799 , Tika Ramji v. State of U.P., : [1956]1SCR393 , Deep Chand v. State of U.P., : AIR1959SC648 , Karunanidhi v. Union of India, : 1979CriLJ773 and Hoechst Pharmaceuticals v. State of Bihar, : [1985]154ITR64(SC) (supra) have by now settled the legal position so authoritatively, and the principles laid down are so well-known that we do not consider it necessary to quote passages from them for the purpose of this judgment. Suffice to note that, that, broadly speaking, the tests for ascertaining repugnancy, in the light of the guiding principles contained in those decisions, could be stated in a nutshell as follows :
(i) whether there is direct conflict between the two provisions;
(ii) whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and
(iii) whether the law made by Parliament and the law made by the State Legislature occupy the same field.
17. We have already noticed that the Full Bench has recorded the opinion that the I.D. Act and the Shops Act did not occupy the same field. It is also categorical that there was no inconsistency between the two Acts. Further, it has found that the Parliament did not evince any interest to lay down an exhaustive Code in respect of the subject matter replacing the Act of the State Legislature which, in fact, was found to occupy only a much narrower field. The underlying principle is that the question of repugnancy arises only when both the legislatures are competent to legislate in the same field with respect to one of the matters enumerated in the Concurrent List; and therefore Art. 254 cannot apply unless both the Union and the State laws relate to a subject specified in the Concurrent List, and they occupy the same field. This being the position there appears to be no legal basis for the conclusion reached by the Full Bench.
18. We find that in para 12 at page 166 (of APLJ) : (para 5, at p. 962 of Lab IC) the first Full Bench has stated :
'It is a common ground that both the Shops Act as well as I.D. Act relate to matters which fall within Item 22 of List III, Concurrent List in the Seventh Sch. to the Constitution, which deals with Trade Unions and Industrial and Labour Disputes.'
We have serious doubt about the correctness of this assumption inasmuch as it does not reflect a correct perception of the scope of Entry 22 and completely overlooks Entries 23 and 24 which, in our opinion, are more appropriately the fields occupied by the Shops Act.
19. We have already noticed that overlapping or incidental encroachment so long as it is found to be within the permissible limits would not result in repugnancy. Suppose the legislative Entry enabling the enactment of a legislation like the I.D. Act falls within List I (the Central List) and the legislation made by the State is purported to cover the field assigned to it in List II (State List), and there is some overlapping or transgression by the State legislation into the field reserved for the central legislation, that would not by itself, so long as it is found to be within the permissible limits, cause repugnancy between the two legislations. If that be the true position in law with respect to encroachment into an unauthorised area by State Legislation, could it be said that overlapping, if any, by the State legislation in the instant case, in a field common to both would by itself make the State Legislation repugnant to the Central legislation? In the case of concurrent List, there could be legislation on the same subject by both the Central Legislation and the State Legislation, and there might be some overlapping or incidental encroachment by one over the other; but so long as that is within the permissible limits, one might not become repugnant to the other; and they would operate within the spheres occupied by each of them, as determined by the pith and substance theory. Very often, a State Legislation may be intended to serve as subsidiary or supplementary to the Central Legislation on the same subject, or it may even be for effectuating the very intention of the Central Legislation that the State might make legislation without, in any way competing or conflicting with the Central Legislation on the subject. The amendment of the Motor Vehicles Act 1939 (Central Act) by Bihar Act 27 of 1950 to introduce a new Section S. 64A providing for revision by the State Government of every order passed by any authority or officer subordinate to it, upheld by the Supreme Court in Tansukh Raj v. Nilratan Prasad, : [1965]2SCR6 , demonstrates the fallacy in the thinking that wherever there is overlapping with respect to legislation on a subject in the Concurrent List, that would result in repugnancy. In that case, the facts in brief were S. 64 of the Central Act already contained a provision for appeals against certain kinds of orders passed by the Regional Transport Authority. In 1956 Parliament amended that Act introducing a differently worded S. 64-A to confer certain revisional powers on the State Transport Authority. The point raised before the Supreme Court was whether by the introduction of the Central S. 64-A in 1956, the Bihar S. 64-A introduced by the Bihar Act, 1950, should be taken to have been repealed under Art. 254 of the Constitution. After posing the question whether there was any direct conflict between the two provisions, the Court proceeded to observe that as certain kinds of orders passed by the Regional Transport Authority were appealable under S. 64 of the Central Act, the revisional power of the State Govt. could be exercised only after the appellate remedy was exhausted. Similarly, as regards orders revisable under S. 64-A also the State Govt. had to await the outcome of such revision before exercising its own power of revision. In other words, Bihar S. 64-A could co-exist with Central S. 64-A if an attempt was made to reconcile the two. The Supreme Court observed :
'The provisions of Bihar S. 64-A and Central S. 64-A are not such that they cannot be complied with simultaneously except for the contingency already mentioned i.e. when an application is made to the State Govt. by a person aggrieved by such an order of the Regional Transport Authority which is not appealable under S. 64. In such a case, the State Government cannot exercise its power under Bihar S. 64-A against the orders of the Regional Transport Authority, though it would be free to exercise that power at a later stage after the State Transport Authority had disposed of the revision, if any, made to it. Revision, in the first instance, against non-appealable orders passed under Chapter IV must go to the State Transport Authority as in respect of such orders Parliament must be taken to have varied the provisions of Bihar S. 64-A.
We therefore hold that Bihar S. 64-A is neither void nor has been repealed by Central S. 64-A and that its scope has been limited only to this extent that revisions against such orders of the Regional Transport Authority which are not appealable have to be preferred to the State Transport Authority.
In the present case, the State Government of Bihar revised the order made by the appellate authority. It was competent to do so. The High Court was in error in holding otherwise.'
20. It has to be noticed that the scope and ambit of the proceedings available to an individual employee by virtue of S. 2A of the I.D. Act are not identical to those available under Ss. 40 and 41 of the Shops Act. Virtually S. 40 of the Shops Act deals mainly with the conditions in compliance with which alone the service of the employee could be terminated by the employer. The right conferred on the employee by sub-ss. (1) and (3) respectively of S. 41 of the Shops Act is to file an appeal before the appellate authority against the termination of his service within the time prescribed (sixty days) and to prefer a second appeal to the Labour Court against the decision of the appellate authority within thirty days prescribed in the Section. The rights and benefits flowing from these provisions could not be equated to those available by invoking S. 2A of the I.D. Act which could give scope inter alia, for conciliation and settlement under S. 12 by a Conciliation Officer, an adjudication being done by the Labour Court under S. 15 on a reference by the Govt. under S. 10(1) and the exercise of power under S. 11-A which empowers the Labour Courts to give appropriate relief in case of discharge or dismissal of workmen. The possibility of a shop-employee, who is not entitled to file an appeal under S. 41 of the Shops Act being entitled to invoke S. 2A of the I.D. Act also could not be totally ruled out though such instances might be few and far between; for instance, where the service of a shop employee, who had been in the employment for a period of less than six months, is terminated, S. 40 of the Shops Act itself would have no application and no question of preferring appeals under sub-ss. (1) and (3) of S. 41 of the Shops Act would arise. In such situations also, S. 2A of the I.D. Act might come to the rescue of the employee. There is no justification, we feel, for taking the view that in making the provisions contained in Ss. 40 and 41 of the Shops Act, the intention of the State Legislature was to render S. 2A of the I.D. Act inoperative by the application of the theory of implied repeal. On the other hand, it is reasonable to presume that the object of Ss. 40 and 41 of the Shops Act is to provide a check against arbitrary and unjust termination of service of the shop employees, and to provide a speedy remedial measure by way of appeals in case the employee is aggrieved by the action of the employer with respect to the termination of his service, preserving intact whatever right that was already available to the employee u/s. 2A of the I.D. Act which was already on the statute book when the provisions in the State Act came into effect. (S. 2A of the I.D. Act came into force with effect from 1-12-1965 whereas the Shops Act came into force only with effect from 21-11-1966). This is quite clear from the provisions of S. 63 of the Shops Act, which reads as follows :
'Nothing in this Act shall affect any rights, privileges which any employee in any establishment is entitled to, on the date on which this Act comes into operation in respect of such establishment, under any other law, contract, custom or usage applicable to such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.'
On a harmonious construction of the provisions, we consider it would accord with the intention of the legislature if we hold that the object behind the provisions made in Ss. 40 and 41 of the Shops Act was not to deprive the shop employee of a right or remedy available to him, but only to provide the additional forum for seeking speedy solution to the problem arising out of the termination of his service. We have not been shown any authority or constitutional bar against the State Legislature providing such an additional remedy in favour of the employee. The option is left with the shop employee who is aggrieved by the termination of his service. He may, at his choice and convenience, either pursue the remedy involving S. 2A of the I.D. Act or approach the appellate authority (in case of necessity), the Labour Court also in Second Appeal). The apprehension that the availability of two forums for the employee to seek redressal of his grievance would lead to conflict of decisions is quite unwarranted. It is needless to say that the principles of constructive res judicata would operate in these fields also. Once on the culmination of the proceedings in one of the channels the decision becomes final under either of the enactments, that binds both the parties and the issue could not be allowed to be re-agitated in the proceedings in the other channel. To say that once any proceedings under S. 2A of the I.D. Act is set in motion the employee would forfeit the right to pursue his remedy under S. 41 of he Shops Act also would be unjust and unwarranted, for the conciliation may fail and the Government may decline to refer the matter for adjudication to the Labour Court; and the employee would be left high and dry without having a door at which he could knock for justice. The fact that it is one and the same authority, the Labour Court, on a reference under S. 10(1) of the I.D. Act to adjudicate the matter; and also to dispose of the appeal filed under S. 41(3) of the Shops Act, would not also be a justification for taking away one of the remedies provided by the Statute, for the reasons already stated.
21. In the light of the foregoing discussion disagreeing, with due respect, with the view expressed by the First Full Bench we hold that Ss. 40 and 41 of the Shops Act do not render S. 2A of the I.D. Act inoperative in so far as it relates to the State of Andhra Pradesh in respect of matters covered by those Sections of the Shops Act and that to a dispute arising out of the termination of the service of a shop employee, the provisions of that Section could be invoked even when his cause is not espoused by a Union or a number of workmen, in the absence of a Union. The result is that, in the instant cases, the contention that the reference of the dispute by the Government, and the passing of the award by the Labour Court are without competence and jurisdiction, shall stand rejected. Having thus answered the question of law, which fell for our consideration, we direct these writ petitions to be posted for disposal by a learned single Judge of this Court on merits after dealing with other contentions, if any raised in them. In view of the fact that these are writ petitions of the year 1977, it is our desire that they are disposed of without any avoidable loss of time, preferably within two months from today. There would be no costs. Advocate's fee Rs. 150/- in each case.
22. Order accordingly.