Amarthalur Co-op. Rural Bank Ltd. Vs. Ponnuru Nageswara Rao and anr. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. jayachandra reddy, j.1. the amarthalur co operative rural bank ltd., represented by its president, is the petitioner. the petitioner in this writ petition is netting a writ of certiorari to quash the order of the labour court, the 2nd respondent herein, in miscellaneous petition no 116 of 1974 which was filed under section 33c(2) of the industrial disputes act by the 1st respondent herein.2. a few facts that are necessary to appreciate the rival contentions have to be stated. the 1st respondent joined the service of the petitioner-bank, as a clerk in the year 1961 and he became the secretary in 1965. he was placed under suspension with effect from 5th june, 1970, pending certain allegations. it appears that no charges were framed and no enquiry was conducted. he remained under suspension till december, 1974. he filed the application under section 33c(2) of the industrial disputes act before the labour court for full salary of 54 months amounting to rs. 14,850 in the said application the petitioner claimed that he is entitled to the salary for all those months as he was not paid any salary during that period and as no charges were framed against him nor any enquiry was held. that petition was resisted by the management mainly on three grounds. the first ground is that the employee is not a workman within the meaning of the industrial disputes act and the second ground is that the labour court had no jurisdiction to entertain a claim arising out of the provisions of the shops and establishments act and lastly, that an application under section 33c(2) is not maintainable. it appears that no evidence was adduced by either side. the labour court, after referring to the provisions of section 64(1) of the shops and establishments act, proceeded to consider whether there was sufficient material to show that the employee was not a workman. the labour court ultimately held that from the fact that the employee was the secretary of the bank and that he was discharging the managerial and administrative functions it cannot be inferred that he is not a workman. the labour court also pointed out that the management did not by adducing sufficient evidence prove that the employee does not come under the category of workman. ultimately it observed thus:in the absence of such proof it has to be held that the petitioner is a workman and he would not come under any category of the persons employed mainly in a managerial or administrative capacity or in a supervisory capacity drawing wages exceeding rs. 500.thus the first contention of the management was repelled.3. as regards the second contention the management contended that all claims arising under the provisions of the a.p. shops and establishments act relating to the wages must go before the authority appointed under section 43 of the act and that the labour court is not a proper forum to entertain such claims. this contention was naturally rejected because the labour court had already reached the conclusion that the employ re was a workman and as such he could approach the labour court.4. then coming to the question whether an application under section 33c(2) was maintainable or not, it is pointed out by the labour court that under the contract of employment an employee who is placed under suspension is entitled to full salary if there is no term limiting the scale of pay during that period and accordingly a lowed the application filed by the employee it is this order that is impugned in this writ petition.5. the learned counsel for the petitioner has raised the same contentions before us that were raised before the labour court. he contends that the labour court has erred in holding that the 1st respondent-employee comes within the meaning of workman. according to the learned counsel the 1st respondent was the secretary of the bank and was discharging the duties which are in the nature of managerial. we cannot go into this question as it is a disputed question of fact. when the labour court, after examining the material oil record, has categorically held that the management did not prove that the 1st respondent does not come within the meaning of workman, it is not for this court to again go into a discussion on ibis aspect. so, we have to reject this contention.6. as regards the second contention viz., that the labour court had no jurisdiction we must also hold that that question does not arise as the labour court had rightly held that the employee is a workman and he could invoke the jurisdiction of the labour court.7. it is then contended by the learned counsel for the petitioner that the management has power to suspend the workman and the employee is not entitled to the wages for the period of suspension and so an application under section33c(2) is not maintainable. it may be mentioned here that the learned counsel for the petitioner conceded that, the management is not clothed under any rule of bye-law with a power to suspend a workman pending an enquiry. under these circum stances it cannot be said that the labour court erred in holding that the employee was entitled to receive the wages for tae period of suspension as the conditions of service do not disentitle him to receive such wages. he then contends that the very fact that the management has inherent power to suspend the workman would go to snow that the suspension was valid and when once the workman is disputing that suspension, the labour court cannot decide that in an application under section 33c(2) as it is in the nature of an executing court. in hotel imperial v. hotel worker's union : (1959)iillj544sc , the supreme court held thus:the power of the employer to suspend an employee under the ordinary law of master and servant in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under such statute would mean that the master would have no power to suspend a workman and even if he does so he will have to pay wages during the so called period o suspension. where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequences that the servant is not bound to render service and the master is not bound to pay.the same view was taken by the supreme court in another case in v.p gindroniya v. state of madhya pradesh : (1970)iillj143sc . in the instant case, as already mentioned, there is no rule or any bye law framed which empowers the management to suspend the first respondent. so we are unable to see any illegality in the order of the labour court.8. the learned counsel for the petitioner brings it to our notice that the 1st respondent was ultimately convicted by a criminal court under section 408 of the code of criminal procedure for the offence of misappropriation of about rs. 45,000 and the same has to be adjusted towards the amount misappropriated. we cannot give any direction in this writ petition in this regard. it is open for the management to take suitable steps, if any, to get this amount adjusted before the order passed under section 33c(2) is enforced.vimadalal, j.i agree. i have nothing to add.by the court.-in the result, the writ petition is dismissed, bit, in the circumstances of the case, we make no order regarding costs.