General Manager (Sales), Fdc Limited and ors. Vs. Deputy Commissioner of Labour and ors. - Court Judgment

B. Sudershan Reddy, J.

1. These cases may be disposed of by a common judgment, since the question that arises for consideration in all the cases in one and the same.

2. The core question that arises for consideration in all these cases is as to whether the Sales Promotion Employees (Conditions of Service) Act, 1976 (for short 'the SPE Act') ousts the jurisdiction of the authorities constituted under the Andhra Pradesh Shops and Establishments Act, 1988 (for short 'the Shops Act') and consequently whether the authorities under the latter Act are precluded from entertaining the appeals preferred by the aggrieved Sales Promotion Employees challenging the termination of their services? Whether the authorities constituted under the Shops Act have no jurisdiction to entertain any appeal preferred by the Sales Promotion Employees challenging the action of the employers in terminating their services?

Factual matrix:

3. For the sake of convenience, the parties herein shall be referred to as 'employer(s)' and 'employee(s)'.

W.A.No. 228 of 2000:

4. We shall first notice the facts leading to filing of W.A. No. 228 of 2000 filed against the order dated 25-1-2000 made in W.P. No. 9872 of 1997 by a learned Single Judge of this Court dismissing the said writ petition filed by the appellant-management challenging the orders of the authorities under the Shops Act directing the reinstatement of the employee into the service together with back wages.

5. The appellant-employer in this writ appeal, like all other employers in the writ appeal and writ petitions before us, is involved in manufacture of pharmaceutical products. It had engaged the services of the employee for the purpose of marketing its manufactured products. That in common parlance, the employees so appointed by the pharmaceutical companies are known as 'Medical Representatives'.

6. That during the year 1988, the appellant herein issued as many as three charge-sheets against the employee to which the employee submitted his explanation on 11-6-1988. That after holding domestic enquiry, the services of the employee were terminated by order dated 21-11-1988 and terminal benefits were accordingly paid on 22-11-1988. The employee invoked the jurisdiction of the Labour Court challenging the order of termination, but for whatever reason had withdrawn the same and moved the competent authority under the Shops Act along with an application to condone the delay in approaching the authority concerned. Notwithstanding the serious objections raised by the employer, the authority condoned the delay against which writ petition and writ appeal were preferred by the employer unsuccessfully.

7. The employer mainly contended before the competent authority under the Shops Act that it had no jurisdiction to entertain the so-called appeal preferred by the employee for the service conditions of the employee are governed and regulated by the provisions of the SPE Act, which is a special enactment. The competent authority having rejected the objection raised by the employer as regards the jurisdiction considered the appeal on merits and upon appreciation of the evidence available on record found that the charges framed against the employee were held not proved and accordingly allowed the appeal directing the employer to reinstate the employee into the service with back wages and the same was confirmed in the second appeal preferred by the employer. The same was questioned in W.P.No. 9872 of 1997 on only one ground that the authorities under the Shops Act had no jurisdiction to entertain the so-called appeal preferred by the employee. The learned Single Judge after an elaborate consideration of the matter held that the authorities under the Shops Act have jurisdiction to entertain the appeal preferred by the aggrieved Sales Promotion Employee and accordingly dismissed the said writ petition. Hence this writ appeal.

WA.No. 1736 of 2000:

8. This writ appeal has been preferred against the judgment of a learned Single Judge of this Court rendered in W.P. No. 15530 of 2000, dated 30-11-2000 dismissing the said writ petition filed by the employer against the orders of the first appellate authority on the ground that the employer approached this Court instead of filing the second appeal only with a view to avoid the deposit of back wages. The learned Judge accordingly left the remedy of the employer to prefer second appeal open, if it so desired, and the same to be disposed of in accordance with law.

9. The case of the employer is that the employee was taken on probation as a Professional Service Representative by order dated 14-9-1998 and his performance was reviewed for the period from 14-9-1998 to 13-3-1999 and having taken the relevant factors into consideration the probation was extended for a further period of three months i.e., up to June 14,1999. Thereafter, the probation of the employee was further extended for a further period of three months i.e., till December 14,1999. The employer by order dated 17-12-1999 terminated the probation of the employee on the ground that he was found not suitable for confirmation in its service and accordingly communicated the same to the employee by its proceedings dated 19-1-2000. The employee invoked the jurisdiction of the appellate authority under Section 48(1) of the Shops Act. It is unnecessary to go into further details except to notice that the employer was set ex parte on 30-5-2000 and the appeal preferred by the employee was allowed duly setting aside the removal order. The employer preferred second appeal against that order, which remained unnumbered, and in the meanwhile had chosen to file W.P. No. 15530 of 2000 challenging the action of the authority under the Shops Act on various grounds,

10. It was mainly contended that the authorities under the Shops Act have no jurisdiction to entertain the appeal preferred by the employee whose service conditions are regulated by the SPE Act. The learned Judge did not go into that question since the employer had already preferred a second appeal and accordingly directed the employer to pursue the remedy of second appeal already availed by it. Hence this writ appeal.

W.P.No. 22735 of 2001:

11. The employer by its letter dated 3-11-1999 informed the employee that his performance and progress was found unsatisfactory and, therefore, was not suitable to be confirmed in service and accordingly settled the account of the employee vide letter dated 29-11-1999. The employee preferred appeal under Section 48(1) of the Shops Act challenging the illegal termination of his services by the employer. The appellate authority by its order dated September 24, 2001 allowed the said appeal preferred by the employee and accordingly directed the employer to reinstate the employee into service will all consequential benefits and full back wages. The said order is challenged in this writ petition.

W.P.No. 8360 of 2002:

12. The employer by the order dated August 5, 1999 dismissed the employee from its service on the ground of misconduct on finding that the charges levelled against him were held proved in domestic enquiry. The employee preferred an appeal under Section 48(1) of the Shops Act before the authority concerned in Case. No. SE/5/2000, challenging the said orders of the employer. The authority by its order dated January 30, 2002 allowed the appeal preferred by the employee and accordingly directed the employer to reinstate the employee afresh into the service, without any back wages and without continuity of service, on the same salary, which he was drawing at the time of dismissal. The present writ petition has been filed by the employer challenging the said order of the appellate authority.

13. In the above writ appeals as well as writ petitions filed by the employers, the Counsel concentrated on one and only question, which we have already referred to even at the threshold of this judgment. No submissions were made attacking the impugned orders passed by the authorities under the Shops Act on merits. The learned Counsel challenged the orders only on the ground of jurisdiction.

14. The undisputed facts are that the employers in all the cases before us are the establishments engaged in pharmaceutical industry. The employees are Sales Promotion Employees within the meaning of the provisions of the SPE Act. Their service conditions are governed under the provisions of the SPE Act.

15. We shall notice the relevant provisions of the SPE Act and brief background as to why the said Act was brought on the statute book.

16. The SPE Act was brought on the statute book, as the statement of objects and reasons accompanying the bill shows, as a result of the Supreme Court's judgment in May and Baker (India) Ltd. v. Their Workmen, : (1961)IILLJ94SC .

17. The persons engaged in Sales Promotion do not come within the purview of the definition of 'workmen' under the Industrial Disputes Act, 1947 (for short 'the I.D. Act'), and as such they have no protection regarding the security of employment and other benefits under that Act. On a petition made by the Federation of Medical Representatives Association of India, the Committee on Petitions (Rajya Sabha) in its 13th Report submitted on March 14, 1972 came to the conclusion that the ends of social justice would be met only by suitably amending the definition of term 'workman' in the Industrial Disputes Act, 1947, in a manner that the Medical Representatives are also covered by the definition of 'workman' in the I.D. Act. The Committee also felt that the other workers engaged in Sales Promotion should similarly be considered as workmen. That keeping in view the justification of the demand of Sales Promotion Employees and the recommendations made by the Committee on Petitions and taking other relevant aspects into consideration, the Parliament considered more appropriate to have a separate legislation for governing the conditions of service of Sales Promotion Employees; instead of amending the Industrial Disputes Act, 1947, to bring such employees within its purview.

18. As per Section 2(a) of the SPE Act, 'establishment' means an establishment engaged in pharmaceutical industry or in any notified industry.

19. As per Section 2(d) of the SPE Act, 'sales promotion employee' means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, but does not include any such person--

(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or

(ii) who is employed or engaged mainly in a managerial or administrative capacity.

20. Under Section 6(2) of the SPE Act, the provisions of the I.D. Act were made applicable to such Sales Promotion Employees.

Section 6 is reproduced as under:

6. Application of certain Acts to sales promotion employees :--(1) The provisions of the Workmen's Compensation Act, 1923 (8 of 1923), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to workmen within the meaning of that Act.

(2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of the Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that a dispute or whose dismissal, discharge or retrenchment had led to that dispute.

(3) The provisions of the Minimum Wages Act, 1948 (11 of 1948), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.

(4) The provisions of the Maternity Benefit Act, 1961 (53 of 1961), as in force for the time being, shall apply to, or in relation to sales promotion employees, being women; as they apply to, or in relation to, women employed, whether directly or through any agency, for wages in any establishment within the meaning of that Act.

(5) The provisions of the Payment of Bonus Act, 1965 (21 of 1965), as in force for the time being, shall apply to, or in relation to sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.

(6) The provisions of the Payment of Gratuity Act, 1972 (39 of 1972), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.

(7) Notwithstanding anything contained in the foregoing sub-sections,--

(a) in the application of any Act referred to in any of the said sub-sections to sales promotion employees, the wages of a sales promotion employee for the purposes of such Act, shall be deemed to be his wages as computed in accordance with the provisions of this Act;

(b) where an Act referred to in any of the said sub-sections provides for a ceiling limit as to wages so as to exclude from the purview of the application of such Act persons whose wages exceed such ceiling limit, such Act shall not apply to any sales promotion employee whose wages as computed in accordance with the provisions of this Act exceed such ceiling limit.

21. That a bare reading of Section 6(2) of the SPE Act makes it abundantly clear that the provisions of the I.D. Act are made applicable to, or in relation to, Sales Promotion Employees as they apply to, or in relation to, workmen within the meaning of the provisions of the I.D. Act and for the purpose of any proceeding under that Act in relation to an industrial dispute.

22. The employees whose service conditions are governed by the SPE Act are entitled to challenge and raise an industrial dispute challenging the orders of dismissal, discharge or retrenchment before the Labour Court/Industrial Tribunal. There is absolutely no controversy whatsoever about the applicability of the provisions of the I.D. Act and availability of forum of Labour Court/Industrial Tribunal to an aggrieved Sales Promotion Employee, who has been dismissed, discharged or retrenched by the employer.

23. The argument was that the only forum available for challenging any such order of dismissal, discharge or retrenchment is the one created under the I.D. Act, such as Labour Court, Industrial Tribunal etc., and such disputes cannot be raised in any other forum.

24. The submission of Sri C.R. Sridharan proceeded thus; that the Parliament enacted SPE Act as it thought that it would be more appropriate to have a separate legislation for governing the service conditions of Sales Promotion Employees and accordingly made the provisions of the I.D. Act made applicable conferring right upon the Sales Promotion Employees to challenge the orders of dismissal, discharge or retrenchment in the forums created and constituted under the provisions of the I.D. Act. The Parliament specified application of certain Acts to Sales Promotion Employees, which include Workmen's Compensation Act, 1923, Minimum Wages Act, 1948, Maternity Benefit Act, 1961, Payment of Bonus Act, 1965 and Payment of Gratuity Act, 1972. The submission was that except the Acts that are specified, no other Acts including the Shops Act shall be applicable for whatsoever purposes and in whatsoever manner. The SPE Act being special in its nature excludes the application of Shops Act, which is general in its nature.

25. Ms. G. Sudha, learned Counsel appearing on behalf of the appellant-employer in W.A. No. 228 of 2000 made similar submissions.

26. Sri Vedula Srinivas and Sri B.G. Ravinder Reddy, learned Counsel appearing on behalf of the employees submitted that the aggrieved Sales Promotion Employees are entitled to avail the remedies available to them both under the provisions of the I.D. Act and Shops Act. It is for the employee to elect to avail the remedies available to him in law either by approaching the forums created and constituted under the provisions of the I.D. Act or the authorities constituted under the Shops Act. It was contended that the appellants - writ petitioners' establishments fall within the definition of 'establishment' under the provisions of the Shops Act and the Sales Promotion Employees satisfy the definition of 'employee' within the meaning of that expression in the Shops Act. Section 6(2) of the SPE Act, in no manner, excludes the operation of the provisions of the Shops Act.

27. In order to consider the submissions, it may be relevant to notice the relevant provisions of the Shops Act.

28. The Shops Act was enacted to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments and other establishments and for matters connected therewith. The Legislature found that it was necessary to provide for some more measures for safeguarding the interests of the employees. With a view to enlarge the beneficial provisions under the Act and to make provision for some more facilities and benefits to the employees in the shops and establishments to suit the present need, the Legislature found that it was eminent and necessary to make a new law. The Act had chosen to entrust the functions of judicial authorities under the Act to the Department Officers to render speedy relief to the employees under the provisions of the Act; and to make provision of some more conditions to be complied with by employers in cases of termination of services of employees.

29. 'Commercial Establishment', according to Section 2(5) of the Shops Act, means an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancillary to any such trade, business or profession or which is a clerical department of a factory or an industrial undertaking or which is a commercial or trading or banking or insurance establishment and includes an establishment under the management and control of a co-operative society, an establishment of a factory or an industrial undertaking which falls outside the scope of the Factories Act, 1948 (Central Act 63 of 1948), and such other establishment as the Government may, by notification, declare to be a commercial establishment for the purposes of this Act but does not include a shop.

30. Section 2(8) of the Shops Act defines 'employee', that means a person wholly or principally employed in, and in connection with any establishment and includes an apprentice and any clerical or other staff of a factory or an industrial establishment who fall outside the scope of the Factories Act, 1948 (Central Act 63 of 1948); but does not include the husband, wife, son, daughter, father, mother, brother or sister of an employer or his partner, who is living with and depending upon such employer or partner and is not in receipt of any wages.

31. As per Section 2(9), 'employer' means a person having charge of or owning or having ultimate control over the affairs of an establishment and includes the Manager, Agent or other person acting in the management or control of an establishment.

32. Section 2(10) defines 'establishment', that means a shop, restaurant, eating-house, residential hotel, lodging house, theatre or any place of public amusement or entertainment and includes a commercial establishment and such other establishment as the Government may, by notification, declare to be an establishment for the purposes of this Act.

33. Section 47 of the Shops Act deals with conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement, etc., and payment of subsistence allowance for the period of suspension.

34. Section 48 of the Shops Act deals with the appointment of authority to hear and decide appeals arising out of termination of services. We are not concerned with the rest of the provisions.

35. Now we proceed to deal with the submissions.

36. In A.P. Steel Wool Industries Co-operative Society Ltd. v. Labour Court, 1987 (1) ALT 98 (FB), an important question, more or less similar to the one on hand, had arisen for consideration before a Larger Bench of this Court, viz., as to whether the provisions of the Industrial Disputes Act, 1947 would have no application, to a dispute, arising out of the termination of the service of an employee in an establishment/shop, answering the description of those terms, as defined in Sub-sections (10) and (21) of Section 2 of the Shops Act? Whether an employee in an establishment/shop was not entitled to raise an industrial dispute not sponsored by a union or a group of workmen?

37. The Larger Bench held that the object of the I.D. Act 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. 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. The Larger Bench found that the I.D. Act and the Shops Act generally occupy the same field and there is no inconsistency between the two Acts. The Court observed:

'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.'

38. The Court while comparing the scope and ambit of the proceedings available to an individual employee by virtue of Section 2-A of the I.D. Act to those available under Sections 47 and 48 of the Shops Act, found that Section 47 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 under the Shops Act is to file an appeal before the appellate authority against the termination of his service within the time prescribed; and to prefer a second appeal to the Labour Court against the decision of the appellate authority within the time prescribed. The rights and benefits flowing from those provisions could not be equated to those available by invoking Section 2-A of the I.D. Act, which would give scope, inter alia, for conciliation and settlement under Section 12 by a Conciliation Officer, an adjudication being done by the Labour Court under Section 15 on a reference by the Government under Section 10(1); and the exercise of power under Section 11-A which empowers the Labour Courts to give appropriate relief in case of discharge or dismissal of workmen. The Court observed:

'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 Sections 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 an additional forum for seeking speedy solution to the problems 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 invoking Section 2-A 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 become 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 Section 2-A of the I.D. Act is set in motion the employee would forfeit the right to pursue his remedy under Section 41 of the 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 Section 10(1) of the I.D. Act, to adjudicate the matter; and also to dispose of the appeal filed under Section 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.'

39. No doubt it was a converse case, but the principle enunciated by this Larger Bench of this Court is the complete answer to the submission made by the learned Counsel for the employers.

40. In M.Krishnaswamy v. Assam Tea Depot, 1977 Lab I.C. 432, an important question had arisen for consideration of this Court as to whether the money or benefit due under any other law can also be worked out and recovered under Section 33-C(2) of the I.D. Act

41. The appellant therein was an employee with the Assam Tea Depot. His services were terminated on account of certain charges made against him. He filed a petition under Section 33-C(2) of the I.D. Act before the Labour Court claming that he is entitled to a specified sum under five counts. He contended that his services were terminated illegally and that the said amounts are due to him, according to law. The management inter alia disputed the jurisdiction of the Labour Court to entertain the said petition under Section 33-C(2) of the I.D. Act in respect of the workman who is governed by the provisions of the Shops Act and the rules made thereunder. The said objections were overruled by the Labour Court, but were upheld by the learned Single Judge of this Court. The learned Single Judge held that the Shops Act is a self-contained enactment providing its own procedure for raising the disputes between the employer and employees, and also providing an appeal and a second appeal and that, in such a case, a workman cannot have recourse to the said summary remedy provided by the Industrial Disputes Act. Overruling the order of the learned Single Judge, the Division Bench held that the procedure provided by the Shops Act is as much a special procedure prescribed by a special Act as the one provided by the I.D. Act. It is observed:

'Ordinarily, these remedies will have to be worked out in a Civil Court; but, having regard to the circumstances in which the workmen are placed, and their difficulties and helplessness, the Legislature thought it fit to create special forums like the one under Section 33-C(2) of the I.D, Act as well as those under Section 43 and Section 41 of the State Act. Hence, the theory of a special procedure or forum excluding the general procedure or forum is misplaced.'

(Emphasis is supplied).

42. The Court ultimately held that the jurisdiction of the Labour Court under Section 33-C(2) of the I.D. Act is not barred, either expressly or by necessary implication, by any of the provisions contained in the A.P. Shops and Establishments Act and it is open to an employee, governed by the provisions of the Act, to recover the money or other benefit due to him under the provisions of the said Act by filing a petition under Section 33-C(2) of the I.D. Act, so long he is a 'workman' within the meaning of the Central Act.

43. It was a converse case. But, the principle and the ratio of the said decision in all its force apply to the facts on hand.

44. In Anand Oil Industries v. Labour Court, Hyderabad, : AIR1979AP182 (FB), a Full Bench of this Court held that for the enforcement of a right to receive minimum bonus an employee can certainly file an application under Section 33-C(2) of the I.D. Act before the Labour Court, and the Labour Court is competent to compute the amount due to the employee in this behalf. The existence of any other remedy for determination and recovery of minimum wage or minimum bonus does not bar the jurisdiction of the Labour Court to entertain a petition under Section 33-C(2) of the I.D. Act. There is no provision either in the I.D. Act or in the Minimum Wages Act, which specifically prohibits the Labour Court from entertaining a petition under Section 33-C(2) of the I.D. Act in respect of a claim for minimum wages. The Court made a significant observation to the effect that the I.D. Act itself is not a general enactment as is commonly understood. In a sense the Industrial Disputes Act itself is a special enactment applicable to certain class of employers and workmen and certain classes of disputes. So also, the Minimum Wages Act deals with specific rights created under that Act. 'They are special enactments relating to certain class of employees and certain class of employments or establishments. The Minimum Wages Act also creates a special forum for certain matters covered by Section 20 of the Act but it does not bar the jurisdiction of the Labour Court to entertain claims covered by the Minimum Wages Act. Section 33-C(2) may be wide enough to include claims of workmen in respect of rights conferred under various enactments.....................Though the Industrial Disputes Act is in certain respects wide in its scope and ambit than the Minimum Wages Act both the enactments nonetheless are special enactments. As the Industrial Disputes Act is thus not a general enactment the principle generalia specialibus non derogant cannot apply to determine if the jurisdiction conferred upon a Labour Court under Section 33-C(2) is taken away with respect to the enforcements of the right to a minimum wage conferred under the Minimum Wages Act.

45. We have no doubt whatsoever in our mind that the SPE Act, which makes the provisions of the I.D. Act applicable providing remedy to Sales Promotion Employees, is a special enactment dealing with service conditions of Sales Promotion Employees employed in the establishments engaged in pharmaceutical industry. So also, the Shops Act deals with specific rights created under that Act. It has been enacted with a view to provide for some more measures for safeguarding the interests of the employees. The provisions are beneficial in their nature. Neither the SPE Act, which makes the provisions of the I.D. Act applicable in case of dismissal, discharge or retrenchment, nor the Shops Act is a general enactment. The principle generate spedalibus non derogant cannot apply in order to determine, if the jurisdiction conferred upon the authorities under the Shops Act is taken away with respect to the enforcement of rights conferred under SPE Act. The submission made by the learned Counsel for the employers is totally devoid of any merit.

46. In M. Radhakrishna Reddy v. Sri B.V. Bus Service, 1986 Lab.I.C 80 (FB), a Full Bench of this Court took the view that the remedies under Section 33-C(2) of the I.D. Act and Section 15 of Payment of Wages Act are independent and alternative and one does not exclude another. The provisions of Section 15 read with Section 22 of the Payment of Wages Act do not bar the jurisdiction of the Labour Court under Section 33-C(2) of the I.D. Act to entertain an application for recovery of wages due to an employee. It is observed, 'when a workman is governed by the provisions of both the Payment of Wages Act as well as the Industrial Disputes Act, it is open to him to avail either of the remedies provided under those Acts'. (Emphasis is added).

47. Reliance, however, has been placed by the learned Counsel for the employers on the decision of the Supreme Court in State of Punjab v. Labour Court, Jullundur, : (1981)ILLJ354SC , in support of his submission that the remedy provided for by the SPE Act making the provisions of the I.D. Act applicable to the disputes relating to dismissal, discharge or retrenchment excludes the jurisdiction of all other authorities and the proceedings must be taken under the I.D. Act and not under any other Act. The Supreme Court in the said decision, upon consideration and having taken the provisions of the Payment of Gratuity Act, 1972 into account found that it was a complete Code containing detailed provisions covering all the features of a scheme for payment of gratuity and creates the right to payment of gratuity, which indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It is under those circumstances, the Supreme Court held that a petition under Section 33-C(2) of the I.D. Act did not lie and the Labour Court had no jurisdiction to entertain and dispose of the same.

48. The above judgment is not an authority for the proposition that an aggrieved employee is not entitled to elect and choose a forum, which is more beneficial to him, in case of more than one forum is available for ventilating grievance.

49. However, Sri C.R. Sridharan, learned Counsel for the employers, repeatedly stressed the point that a general provision should yield to a specific provision. The submission is that the SPE Act enacted by the Parliament is special in its nature and the Shops Act enacted by the State Legislature, though latter, is general and, therefore, the provisions of the latter Act should yield to the specific provision made in the special enactment.

50. The learned Counsel placed reliance upon the decisions of the Supreme Court in U.P.S.E.B. v. Hari Shankar Jain, (1978) 4 SCC 16, Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd., : [1990]1SCR862 , and Gobind Sugar Mills Ltd. v. State of Bihar, : AIR1999SC3097 , in support of his submission that the provisions of the SPE Act being a special Act would override the provisions of the Shops Act. It was contended that the rule general provision should yield to special provision is squarely attracted on the facts and in the circumstances of the case. There is no foundation as such laid in the pleadings contending as to how and on what basis the provisions of the Shops Act are to be held general in their nature. On the other hand, in our considered opinion, the Shops Act itself is a special enactment enacted with a view to make provisions providing facilities and benefits to the employees in the shops and establishments, which prescribes conditions to be complied with by the employers in case of termination of services of employees. The said Act has been enacted to render speedy relief to the employees under the provisions of the Act. The provisions of the I.D. Act, in no manner, exclude the applicability of the provisions of the Shops Act.

51. On a perusal of the provisions of both the Acts including the objects of two Acts, it could be seen that the two enactments provide for speedy relief to the aggrieved employees/workmen by creating special forums/authorities under the provisions of the respective Acts to determine the actions initiated complaining of illegal dismissal, discharge or retrenchment and termination of services. In fact, when compared to the provisions of the Shops Act, the I.D. Act is somewhat general in its nature, as it does not exclusively confine itself to the problems of dismissal and retrenchment/termination of services. It is primarily an Act to make provisions for the investigation and settlement of industrial disputes. It is enacted to ensure social justice to both employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the two parties of industry.

52. 'Industrial dispute' according to Section 2(k) of the I.D. Act, 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 conditions of labour, of any person.

53. Whereas, the provisions of the Shops Act are enacted with a view to make provisions of stringent conditions to be complied with by the employers in cases of termination of services of employees; and to provide for more stringent punishment to the offending employers to Act as deterrent to prevent abuse of the various welfare provisions of the enactment.

54. Therefore, when compared with the provisions of the I.D. Act, the provisions of the Shops Act, under no stretch of imagination, could be characterised as general in their nature.

55. The provisions of both the I.D. Act and the Shops Act are required to be construed harmoniously. The provisions of both the enactments operate in their respective fields without coming into conflict with each other in any mariner whatsoever. Both the enactments aim and intend to provide cheap and speedy resolution of disputes between the employer and employee and the management and workman, as the case may be.

Doctrine of Repugnancy:

56. That a feeble attempt has been made by the learned Counsel for the employers to contend that the provisions of the Shops Act are repugnant to the provisions of the SPE Act, which makes the provisions of the I.D. Act applicable providing remedies to aggrieved employees complaining of illegal dismissal, discharge or retrenchment etc.

57. The question is whether or not there is any repugnancy between the provisions of the SPE Act and the Shops Act? The question is as to whether there is any repugnancy between the I.D. Act and the Shops Act?

58. No provision is brought to our notice under the Shops Act which is repugnant to any of the provisions of the SPE Act. Nor there is any specific attack suggesting that any particular provision under the Shops Act is repugnant to the provisions of the I.D. Act.

59. What is repugnancy and when repugnancy between a law made by a State and by the Parliament may arise?

60. The position in law is so well settled and we do not propose to burden this judgment with various authoritative pronouncements of the Supreme Court wherein the test to determine repugnancy between a law made by a State and by the Parliament have been laid down.

61. In M. Karunanidhi v. Union of India, : 1979CriLJ773 , the Supreme Court after referring to its earlier decisions in Tika Ramji v. State of Uttar Pradesh, : [1956]1SCR393 ; Deep Chand v. State of Uttar Pradesh, : AIR1959SC648 ; State of Orissa v. M.A. Tulloch and Co., : [1964]4SCR461 ; and T.S. Balaiah v. T.S. Rengachari, : [1969]72ITR787(SC) observed:

'Repugnancy between a law made by a State and by the Parliament may result from the following circumstances:

(1) Whether the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

(2) Where however if law passed by the State comes into collision with a law passed by Parliament on an entry in the Concurrent List, the, State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with Clause (2) of Article 254.

(3) Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four comers of the State. List and entrenchment, if any, is purely incidental or inconsequential.

(4) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.

62. The Supreme Court in National Engineering Industries Ltd. v. Shri Kishan, : (1988)ILLJ363SC , while construing the provisions of Rajasthan Shops and Commercial Establishments Act, 1958 visa-vis the Industrial Disputes Act, 1947 held that both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistence between these two Acts. These Acts were held to be supplemental to each other. The Supreme Court held that the Rajasthan Act, in no way, could be construed to curtail the rights of the workman to seek any relief or to go in for an adjudication in case of the termination of the employment. It is observed:

'Under Article 254(2) of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List. It appears that both of these Acts treat the same field and if there was any conflict with each other, then Section 28-A of Rajasthan Act would apply being a later law. We find, however, that there is no conflict.'

63. Having analysed the provisions of the Industrial Disputes Act and the Rajasthan Act, which are in pari materia with the A.P. Shops and Establishments Act, 1988, the Supreme Court observed:

'In our opinion, in this case there is a good deal of justification to hold that these laws, the Industrial Disputes Act and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. The basic test of repugnancy is that if one prevails the other cannot prevail. That is not the position in this case............There is no conflict between the two Acts and there is no question of repugnancy.'

64. In Vijay Kumar Sharma v. State of Karnataka, : [1990]1SCR614 , an important question of law had arisen for consideration: whether the Motor Vehicles Act, 1988 has impliedly repealed the Karnataka Contract Carriages (Acquisition) Act, 1976.

65. The Court while dealing with the said question observed:

'.........whenever repugnancy between the State and Central legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject-matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e., the pith and substance of the two legislations is different, they cover different subject-matters. If the subject-matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject-matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the article.'

66. The Supreme Court in the said decision noticed that the Karnataka Act and the M.V. Act, 1988 deal with two different subject-matters. The Karnataka Act is enacted by the State Legislature for acquisition of contract carriages under Entry 42 of the Concurrent List read with Article 31 of the Constitution to give effect to the provisions of Article 39(b) and (c) thereof. The M.V. Act, 1988 on the other hand is enacted by the Parliament under Entry 35 of the Concurrent List to regulate the operation of the motor vehicles. It is observed:

'In Clause (1) of Article 254 it has been clearly indicated that the competing legislations must be in respect of one of the matters enumerated in the Concurrent List ....the State Act was an Act for acquisition and came within Entry 42 of the Concurrent List........ Motor Vehicles Act is a legislation coming within Entry 35 of the Concurrent List. Therefore, the Acquisition Act and the 1988 Act as such do not relate to one common head of legislation enumerated in the Concurrent List and the State Act and the Parliamentary statute deal with different matters of legislation.'

(Emphasis is of ours).

67. In A.P. Steel Wool Industries Cooperative Society Ltd. v. Labour Court (supra), a Larger Bench of this Court overruled the decision rendered by a Full Bench of this Court in Visakhapatnam District Marketing Co-operative Society, Limited v. Government of Andhra Pradesh, 1977 (1) APLJ 160, in which it has been-held that both the Shops Act as well a I.D. Act relate to matters which fall within Item 22 of List in (Concurrent List) in the Seventh Schedule to the Constitution, which deals with Trade Unions and Industrial and Labour Disputes. Overruling the said view, the Larger Bench observed:

'...........it does not reflect a correct perception of the scope of Entry 22 are completely overlooks Entries 23 and 24 which, in our opinion, are more appropriately the fields occupied the Shops Act.'

68. The Larger Bench, thus, took the view that the Industrial Disputes Act relates to the matters which fall within Item 22 of List III in the Seventh Schedule to the Constitution, which deals with trade unions; industrial and labour disputes, whereas the Shops Act relates to the matters which fall within Item 23 of List III in the Seventh Schedule to the Constitution, which deals with social security and social insurance; employment and unemployment, as well as Item 24 which deals with welfare of labour including conditions of work, provident funds, employers' liability, etc,

69. It is thus clear that the I.D. Act and the Shops Act (State Act) do not relate to one common head of legislation enumerated in the Concurrent List and they deal with different matters of legislation. In such a situation, the working of two legislations can never give rise to a question of repugnancy.

70. Even otherwise, if a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the Stale only.

71. We have already noticed that the Shops Act has been reserved by the Governor on the 19th August, 1986 for consideration and assent of the President and received the assent of the President on the 18th July, 1988. Assuming that the Shops Act is inconsistent with and repugnant to I.D. Act made by the Parliament, the same has been protected by obtaining the assent of the President under Article 254(2) of the Constitution. The same prevails in the State and overrules the provisions of the I.D. Act in their applicability to the State of Andhra Pradesh.

72. We have made those observations in order to dispose of the extreme contentions urged for and on behalf of the employers. We do not find any repugnancy as such in reality between the provisions of the I.D. Act and the Shops Act. Merely because the Governor reserved the Act for consideration and assent of the President, no presumption as such arises that there has been any repugnancy between the provisions of the I.D. Act and the Shops Act.

73. The learned Counsel for the employers made a desperate submission contending that the employers have no establishments in the State of Andhra Pradesh as defined in Section 2(10) of the Shops Act in which the respondents-employees were employed. It was contended that none of the companies has any division at Hyderabad and, therefore, there is no employer and employee relationship and the dispute, if any, cannot be adjudicated by the authorities under the Shops Act.

74. The submission is totally untenable and unsustainable. The question is no longer res integra, but squarely covered by an authoritative pronouncement of this Court in Bayer (India) Limited v. Commissioner of Labour, 1980 (1) ALT 448 = 1980 (1) APLJ 360, wherein a Division Bench of this Court took the view that a defined premises is not an essential requirement for an establishment to fall within the definition of Commercial Establishment. It is observed:

'.....the dominant characteristic of a 'Commercial establishment' is its activity in trade, business or a profession or any work in connection therewith and any defined premises or fixed place is not a desideratum for such activity. The essential attributes of business and trade are systematic and habitual activity undertaken for production or for rendering material services to the community or any part of the community with the help of employees and not the existence of any fixed premises. The emphasis in the definition under Section 2(5) of the Act is not on the place from which the trade or business is carried on but the emphasis is really on the nature of the activity, and that activity must be a business or trade activity.......An establishment which satisfied the criteria laid down under the statute does not cease to be an establishment merely because the employer evaded registration under Section 3 and thereby deprive an employee of the benefit of the provisions of the Act which is intended to provide security of tenure, payment of wages and hours of work, leave etc. To hold otherwise would be against the spirit and reason of the statute. The statute is designed to suppress the evil of insecurity of tenure to employees in establishments and the object of the statute would be frustrated if an employer who evades registration of an establishment under the provisions of Section 3 of the Act is allowed to avoid the implementation of the provisions of the Act.'

75. The result of the above discussion is that if the respondents are the employees and the appellants/writ petitioners are the employers as defined in the Shops Act and the action taken by the appellants/ writ petitioners amounts to termination of services of the respondents-employees, then the rights and liabilities of the parties are governed by the provisions of the Shops Act and the said rights and liabilities may be adjudicated upon and enforced in the proceedings before the authorities under the provisions of the Shops Act.

For the foregoing reasons:

(a) So far as W.A. No. 228 of 2000 is concerned, no relief could be granted inasmuch as the appellant had availed all the remedies under the Shops Act and all the authorities concurrently held against the appellant declaring the order of termination of the services of the employee to be illegal.

76. The writ appeal (W.A.No. 228 of 2000) shall accordingly stand dismissed with costs quantified at Rs. 3,500/- (Rupees three thousand five hundred only) payable to the respondent-employee.

77. It was, however, contended that the employee is not entitled for back wages and other amounts since he was gainfully employed all through. We do not want to express any opinion in this regard. It shall always be open to the appellant-employer to plead and establish as and when the proceedings are initiated by the employee for recovery of the said amounts or steps are initiated by it for recovery of the amounts already paid to the employee on the ground that he was gainfully employed and, therefore, not entitled for any wages during the pendency of these proceedings.

78. The amounts, which are lying in deposit with the Registry, shall be released and paid to the respondent-employee.

(b) Likewise, we do not find any merit in W.A. No. 1736 of 2000 and W.P. Nos. 22735 of 2001 and 8360 of 2002 and the same shall accordingly stand dismissed with costs quantified at Rs. 3,500/- (Rupees three thousand five hundred only) in each case payable to the respondents-employees.

79. Since no submissions were made with regard to the validity of the orders passed by the authorities on merits, we propose to grant leave to the employers to avail the remedies, if any, available to them in law. It is needless to observe that, if any, such remedy is availed, the same shall be considered on its own merits.

80. However, the employers are not entitled to raise the question relating to jurisdiction of the authorities under the Shops Act to adjudicate the proceedings, if any, initiated in this regard.

Sudershan Reddy and P.S. Narayana, JJ.

W.A. No. 228 of 2000 and Batch

81. Immediately after pronouncing the judgment, the learned Counsel for the appellant in W.A. No. 1736 of 2000 made an oral application seeking a certificate of this Court enabling the appellant to prefer an appeal to the Supreme Court. No question of law much less any substantial question of law involving interpretation of the provisions of the Constitution arises for consideration in this case.

82. The application is accordingly rejected.