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The Visakhapatnam District Marketing Cooperative Society Ltd. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 4918
Judge
Reported inAIR1977AP241; [1977(34)FLR322]; (1977)IILLJ332AP
ActsConstitution of India - Article 254; Andhra Pradesh Shops and Establishments Act, 1966 - Sections 40, 41 and 63; Industrial Disputes Act - Sections 2A, 10(1) and 33C(2)
AppellantThe Visakhapatnam District Marketing Cooperative Society Ltd.
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateV. Jagannadha Rao and ;K. Rangaiah, Advs.
Respondent AdvocateGovernment Pleader and ;R. Venugopala Reddy, Adv.
Excerpt:
.....- maxim applicable only when competing statutes have been passed by same legislature - held, provisions of shops act relating to termination of service must prevail over section 2 a of industrial disputes act. - - the disciplinary committee thereafter issued a second show cause notice dated 11th february, 1968 directing the third respondent to show cause why he should not be dismissed from service, but the third respondent failed to show cause against the same, and the petitioner-society, after perusing the report and the findings of the said committee, dismissed the third respondent from service by its order dated 20th february, 1968. the third respondent thereafter filed writ petition no. 1807 of 1967 as well as writ petition no. 1253 of 1968 was dismissed by this court by a..........judge that repugnancy had to be considered when the law made by parliament and the law made by the state legislature occupy the same field because, if both those pieces of legislation deal with 'separate and distinct matters though a cognate and allied character', repugnancy did not arise. he then proceeded to cite with approval from the constitutional work of an australian authority which laid down three tests of repugnancy , viz., (i) inconsistency in the actual terms of the competing statutes; (ii) where a commonwealth law was intended to be complete exhaustive code though there might be no direct conflict between it and a state law; and (iii) even in the absence of such an intention, a conflict may arise where both the legislatures seek to exercise their powers over 'the same.....
Judgment:

Vimadalal, J.

1. The petitioner in this writ petition is a Co-operative Society registered under the Andhra Pradesh Co-operative Societies Act, 1968. The third respondent was not at all material times the Manager of the Petitioner-society. Charges of misappropriation were framed against the third respondent by the petitioner-society by its charge memo dated 15-9-1967. Challenging the said charge memo the third respondent filed W.P. No. 1807 of 1967, but did not submit any explanation in regard to the charges contained therein. The petitioner-society constituted a disciplinary committee to enquire into the allegations contained in the charge memo, but the third respondent, though duly served with a notice, did not appear before the said committee or participate in the enquiry held by it. The Disciplinary Committee thereafter issued a second show cause notice dated 11th February, 1968 directing the third respondent to show cause why he should not be dismissed from service, but the third respondent failed to show cause against the same, and the petitioner-society, after perusing the report and the findings of the said committee, dismissed the third respondent from service by its order dated 20th February, 1968. The third respondent thereafter filed writ petition No. 1253 of 1968 for quashing the said order of dismissal. Writ Petition No. 1807 of 1967 as well as Writ Petition No. 1253 of 1968 was dismissed by this Court by a common order on the 2nd of April, 1970.

2. The third respondent thereafter raised an industrial dispute before the Labour Officer, Srikakulam, who held conciliation proceedings but ultimately submitted a failure report to the Government. The Government in the first instance, declined to refer the dispute for adjudication by its order dated 5th November, 1971, on the ground that the third respondent has not availed of the opportunities given to him to defend himself against the charges framed and the action proposed to be taken against him. The Government, however, thereafter changed its mind, and G.O. Ms. No. 268, dated 27th April, 1974, it referred the dispute arising out of the dismissal of the third respondent for adjudication to the Labour Court, Guntur, the reference being in respect of two matters viz., (a) whether the dismissal of the third respondent by the petitioner-society was justified and (b) if it was not justified to what relief was the third respondent entitled?

3. The petitioner-society has filed the present petition against the State Government as the first respondent, the Presiding Officer of the Labour Court, Guntur, as the second respondent, and against the third respondent, for the issue of a writ of certiorari or any other appropriate direction or order to quash the reference in G.O. Ms. No. 268, dated 27-4-1974, and to issue consequential directions prohibiting the second respondent from adjudicating upon I.D. No. 42/1974 on his file. On the writ petition coming up before our brother Lakshmaiah, by consent of parties, the matter was referred, by his order dated 6th April, 1976, referred the matter to a Full Bench 'for resolving the conflict between the two sets of decisions' to which they referred in their said order. The learned Chief Justice has, thereafter constituted this Full Bench to hear the writ petition.

4. The conflicting judgments mentioned in the referring judgment of the Division Bench are the unreported judgments of two Division Benches dated 25-7-1973 and 16-9-1975 in W.P. No. 5494 of 1971 (Andh Pra) and W.A. No. 899 of 1974 (Andh Pra) respectively on the one hand, and the decision of another Division Bench of this Court in the case of M. Krishnaswami v. Assam Tea Depot, (1976 - I APLJ 291): (1977 Lab IC 432) on the other. In the former two unreported decisions, the view taken was that where Andhra Pradesh Shops and Establishments Act, 1966, (hereinafter referred to as the 'Shops Act') was applicable, the remedy under s. 33-C (2) of the Industrial Disputes Act (hereinafter referred to as the 'I.D. Act') could not be invoked. In the decision in Krishnaswami's case, on the other hand, it was held that in view of the saving provision contained in S. 63 of the Shops Act, there was no room for contending that the procedure and forum created by that Act were of an exclusive nature barring the jurisdiction of the Labour Court to entertain applications under S. 33-C (2) of the I.D. Act. It was therefore, held that it was open to an employee governed by the provisions of Shops Act to recover the money or other benefit due to him under the provisions of that Act by filing a petition under S. 33-C (2) of the I.D. Act. A similar question arose before still another Division Bench, to which one of us (Vimadalal , J.) was a party, in the case of K. Gopala Rao v. Labour Court (1976-2 APLJ 294):( 1977 Lab IC 410). That was a case in which the remedy of the workman under s. 20 of the Minimum Wages Act was barred by time, and it was held that he could, therefore, maintain an application under S. 33-C (2) of the I.D. Act, but the wider question as to whether application under S. 33-C (2) of the I.D. Act would lie even in the case in which a remedy under S. 20 of the Minimum Wages Act was still available to the workman concerned was left open by the Division Bench. It is important to note that all the four decisions referred to in this paragraph were decisions in which the question of the maintainability of a proceeding under I.D. Act arose only in respect of applications under S. 33-C (2) of the I.D. Act, and not in respect of a reference under s. 10 of the I.D. Act as in the present case. It may also be pointed out that in none of the first three of those four cases was the applicability of Art. 254 of the Constitution considered at all. As we propose to decide the present writ petition solely on the basis of the provision contained in Art. 254 of the Constitution, the question of resolving any conflict between the above decisions, as envisaged in the referring judgment, in our opinion, does not arise at all. The question of considering the applicability of Article 254 did not arise in the fourth case mentioned above because both the Acts in question in that case were Acts of the same Legislature, namely, the Union Legislature.

5. Art. 254 of the Constitution is in the following terms:-

'254. (1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matter 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 made 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 matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State'.

As stated by Subba Rao, J. in the Supreme Court case of Deep Chand v. State of U.P. ( : AIR1959SC648 (para 28), the scheme of Article 254 is that Cl. (1) lays down a general rule to which Cl. (2) is an exception. It is a common ground that both the Shops Act as well as the I.D. Act relate to matters which fall within Item 22 of List III (Concurrent List) in the Seventh Schedule to the Constitution, which deals with trade unions and industrial and labour disputes. The I.D. Act is an earlier Act passed by the Union Legislature, but the Shops Act which was passed by the State several years later was reserved for the assent of the President which was, in due course, granted. The position therefore is that, if there is any repugnancy between the Shops Act and the I.D. Act, the Shops Act must prevail in the State by reason of Cl. (2) of Art. 254, to the extent of the repugnance. We must, therefore, proceed to consider whether, and to what extent, there is repugnance between the I.D. Act and the Shops Act. The test for determining whether there is repugnance between the two statutes or statutory provisions has been laid down by the Supreme Court in several cases. In the case of Tika Ramji v. State of U.P. ( : [1956]1SCR393 ), Bhagwati , J. delivering the judgment of the Supreme Court dealt with the test of repugnancy with characteristic exhaustiveness in paragraphs 26 to 33 of his judgment. It was first observed by the learned Judge that repugnancy had to be considered when the law made by Parliament and the law made by the State Legislature occupy the same field because, if both those pieces of legislation deal with 'separate and distinct matters though a cognate and allied character', repugnancy did not arise. He then proceeded to cite with approval from the Constitutional work of an Australian authority which laid down three tests of repugnancy , viz., (i) inconsistency in the actual terms of the competing statutes; (ii) where a commonwealth law was intended to be complete exhaustive Code though there might be no direct conflict between it and a State Law; and (iii) even in the absence of such an intention, a conflict may arise where both the Legislatures seek to exercise their powers over 'the same subject-matter'. The learned Judge then proceeded to discuss some cases in which it was observed that there may be repugnancy even if obedience to both the laws is possible. Finally the learned Judge referred to a decision of the Federal Court of this country which laid down that every effort should be made to reconcile competing statutes, and that repugnancy must exist in fact and not depend merely on a possibility e.g. when the law in question has not yet been brought into force. In Deep Chand's case which has already been cited above (para 32) the argument that was advanced on behalf of the appellants that if two Acts operate in the same field in respect of the same subject-matter the State Act becomes wholly void, was rejected on the ground that it ignored the crucial words 'to the extent of the repugnancy' occurring in Cl. (1) of Art. 254. It was further observed that the identity of the field may relate to the pith and substance of the subject-matter and also to the period of its operation, and that it was only when both coincided that the repugnancy would be completed and the whole of the State Act would become void.

6. Having dealt with the accepted tests of repugnancy as between competing statutes, we will now turn to the relevant statutory provisions in question in the present case. Section 2(k) of the I.D. Act of 1947 defines an 'Industrial Dispute' as any dispute or difference between employers and employers or 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. S. 10 (1)(c) of that Act empowers the appropriate Government to refer any industrial dispute to a Labour Court for adjudication if it relates to any of the matters specified in the Second Schedule thereto. Item 3 of the Second Schedule relates to the discharge or dismissal of workmen, including reinstatement of, or grant of relief to, workmen wrongfully dismissed. As far back as the year 1965 it was laid down by the Supreme Court in the case of Workmen v. M/s Dharam Pal ( : (1965)ILLJ668SC ) (paras 3-4) that it was well settled that a dispute between a single employee and his employer cannot be referred for adjudication under S. 10 (1) of the I.D. Act 'unless a claim for such a reference is supported either by the Union to which the workman in question belongs or in the absence of a Union, by a number of workmen'. Soon after the judgment in Dharam Pal's case was rendered by the Supreme Court, S. 2-A was, however, inserted in the I.D. Act and that section is in the following terms:-

'2-A Dismissal etc., of an individual workman to be deemed to be an industrial dispute:- Where an employer discharges , dismisses retrenches or otherwise workman, any dispute or difference between that workman and the employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.'

The effect of that amendment was that matters relating to the discharge, dismissal, retrenchment or termination of the service of an individual workman were sought to be brought within the definition of 'industrial dispute' in S. 2 (k) of the I.D. Act , with the result that the appropriate Government could refer to such individual dispute for adjudication under S. 10 (1) of that Act, even though neither the union concerned not the other workmen espouse the cause of that individual workman. Turning to the relevant provisions of the Shops Act of 1966, it may be once be pointed out that it is not disputed that the petitioner-society is an establishment within the meaning of S. 2 (10) read with S. 2 (5) and (8) of that Act and the Shops Act is, therefore, applicable to it, having regard also to the provisions of S. 69 of that Act. Section 40 of the Shops act enacts that no employer can without reasonable cause and except for misconduct terminate the services of an employee who has been in his employment continuously for a period of not less than six months without giving him at least one month's notice in writing or wages in lieu thereof and a gratuity amounting to fifteen days' average wages for each year of continuous employment. Rule 19 (1) (d) of the Rules framed under that Act, inter alia, provides that, theft, fraud or dishonesty in connection with the employer's business or property is to be treated as misconduct on the part of the employee. Rule 20 of these Rules prescribes that no employer can terminate the services of an employee under S. 40 unless an enquiry is held against the employee concerned in respect of any alleged misconduct in the manner set forth in the said rule. Section 41 of the Shops Act provides for an appeal to an officer appointed by the Government in regard to matters arising out of the termination of service of an employee under S. 40 which, as provided in R. 21, has to be filed within 60 days from the date of service of the order of termination on the employee. Sub-s(2) of S. 41 empowers the said authority , inter alia, to direct reinstatement with or without wages, and sub-s (3) thereof provides for a further appeal to the Labour Court constituted under S. 17 of the I.D. Act within 30 days, and further enacts that the decision of the Labour Court on such appeal is to be final and binding on both the employer as well as the employee. Section 63 of the Shops Act lays down that nothing in that Act is to affect any rights to which an employee may be entitled on the date on which the Act came into operation in respect of the establishment in question.

7. A consideration of these provisions of the Shops Act and of the I.D. Act shows that there is no inconsistency in the actual terms of the said two statute. Such a comparison also shows 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. The question of repugnancy will, therefore have to be considered only in reference to the third test laid down by Bhagwati , J. in Tika Ramji's case ( : [1956]1SCR393 ), viz., whether the State Legislature by enacting the Shops Act, and the Union Legislature by enacting I.D. Act, seek to exercise their powers 'over the same subject-matter' or, as has sometimes been put, seek to cover the same field and, if so, to what extent. A consideration of the preamble as well as the various provisions of the I.D. Act leaves no room for doubt that it is a statute of very wide import which has been enacted for the settlement of industrial disputes, in general, in the interest of industrial peace and harmony. The Shops Act, on the other hand, covers a much narrrower field, in so far as it applies only to shops and establishments and 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 may be employed. There can, therefore, be no doubt that the two enactments do not cover the same field. This is the view which a Division Bench of the Mysore High Court has taken in regard to the Madras Shops and Establishments Act, 1947, in the case of New Taj Mahal Cafe v. Its Workmen ((1969) 1 Lab LJ 279 at pp. 282-283: (1968 Lab IC 1149 at pp. 1151-52)(Mys). We concur with the view taken in the judgment of the Mysore High Court in the said case. A similar view was taken by the Division Bench of the Patna High Court in the case of Jagdish v. State of Bihar ( : AIR1964Pat180 in regard to the Bihar Shops and Establishments Act. 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. 2-A 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 the same. The disputes of an individual workman, in regard to termination of services squarely fall within the field covered by Sub-section. 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. 2-A of the I.D. Act refers. We, however, do not desire to express any opinion on the legal position that would arise if the individual dispute of a workman is supported either by the Union to which he belongs or, in the absence of a Union, by a number of workmen, and such a matter is sought to be referred for adjudication under S. 10(1) of the I.D. Act.

8. As already observed earlier, the question that arises in the present case has to be decided in reference to the provisions of Art. 254 of the Constitution which lays down its rules as to which of two competing statutes, one passed by the State Legislature and the other by the Union Legislature, is to prevail. To such a case, the maxim, generalia specialibus non derogant (general provisions will not abrogate special provisions) has no application. The said maxim would have to be considered in our country only when the competing statutes have been passed by the same Legislature, which is not the position in the present case. Reliance was sought to be placed by the learned Advocate for the petitioner society on the decision of the Supreme Court in the case of Zaverbhai v. State of Bombay (AIR 1954 SC 7520 as showing that the said maxim is applicable even where the Acts in question are passed by different Legislatures, one by the Union Legislature and the other by the State Legislature. That submission of the Learned advocate is, however, based on a misconception, in so far as it overlooks the fact that the Zaverbhai's case the Court was concerned only with a question arising under the proviso to Art. 254(2) of the Constitution, and not with Cl. (2) of Art. 254 itself. What is more, in applying to the said proviso, what the Supreme Court did was not to resort to the maxim, generalia specialibus non derogant, but to apply the rule of implied repeal to an earlier legislation by a later legislation as being implicit in the said proviso.

9. It is important to bear in mind that S. 10 (1) of the I.D. Act does not confer any right on the workman or the employer to have a dispute referred to adjudication. The right which the said section confers is a right of the appropriate Government alone and, in the exercise of its discretion, the Government might or might not refer to such a dispute for adjudication. Section 63 of the Shops Act which saves the 'rights' to which an employee was entitled on the date on which the said Act came into force cannot have any application in view of the fact that, unlike S. 33-C (2) of that Act, S. 10 does not confer any right on the employee. The decisions mentioned in the referring judgment are all decisions under S. 33-C (2) of the I.D. Act, whereas the present case is not one under the said section, but is one in which S. 10 of that Act is sought to be resorted to. We are not called upon to decide what would be the position in an application made under S.33-C (2) of the I.D. Act, in regard to which different considerations may arise, in so far as under that section each workman has the right to make an application. The question of resolving the conflict between the decisions mentioned in the referring judgment, therefore, does not arise in the present case. In the result we hold that, the provisions of the Shops and Establishments Act relating to the termination of the services of an employee of a shop or establishment must prevail over S. 2-A of the I.D. Act, and over the other provisions of that Act in so far as the same are attracted by reason of the said S. 2-A. Three facts are admitted in the present case, and they are, (1) the dispute in question is an individual dispute within S. 2-A, and not a dispute which would otherwise be an 'industrial dispute' within S. 2 (k) of the I.D. Act; (2) that dispute relates to the termination of the services of the third respondent; and (3) the petitioner-society is an 'establishment' within S. 2(1) of the Shops Act. Applying the principles laid down by us above, we must therefore, make the rule absolute and issue a writ as well as an order under Art. 226 of the Constitution quashing the Reference in G.O.Ms. No. 268 dated 27-4-1974, and prohibiting the second respondent from adjudicating upon I.D. No. 42/1974, on the file of the Labour Court, Guntur . In view of the uncertainty of the law prevailing till now we, however, make no order in regard to the costs of this petition. Advocate's fee Rs. 250/-.

10. Petition allowed.


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