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Sri Brindavan Hotel, Hyderabad Vs. the Conciliation Officer, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 126 of 1975
Judge
Reported inAIR1977AP386; [1977(35)FLR381]; (1978)IILLJ287AP
ActsIndustrial Disputes Act, 1947 - Sections 2 and 2-A; A.P. Shops and Establishments Act, 1966 - Sections 2(5), 2(8), 2(9), 2(10), 40 and 41; Shops Act
AppellantSri Brindavan Hotel, Hyderabad
RespondentThe Conciliation Officer, Hyderabad and anr.
Appellant AdvocateV. Jagannadha Rao, Adv.
Respondent AdvocateGovernment Pleader for Home and ;Seshachari, Adv.
Excerpt:
labour and industrial - jurisdiction of conciliation officer - sections 2 and 2-a of industrial disputes act, 1947, sections 2 (5), 2 (8), 2 (9), 2 (10), 40 and 41 of shops and establishments act, 1966 and shops act - hotel management terminated services of certain employees on ground that their services not required - workers' union raised industrial dispute in that regard - conciliation officer issued notice under act of 1947 to hotel management for bringing about conciliation of dispute between parties at instance of workers' union - hotel management challenged jurisdiction of conciliation officer to enter upon conciliation proceedings - dispute fall within scope and ambit of chapter v-a of act of 1947 - workers' union has right to agitate question only under act of 1947 - act of 1966.....s.h. sheth, j.1. this petition has been filed by m/s. brindavan hotel under the following circumstances :-the hotel management terminated the services of certain employees on the ground that their services were not required. the conciliation officer, hyderabad city, is the first respondent and the president of brindavan hotel mazdoor sangh is the second respondent. the workers' union raised the dispute in regard to the termination of the services of these employees. at the instance of the union the conciliation officer, first respondent, issued under industrial disputes act, 1947 notice to the hotel management for bringing about conciliation of the dispute between the parties if it could be brought about. the hotel management thereupon filed this petition in which they challenge the.....
Judgment:

S.H. Sheth, J.

1. This petition has been filed by M/s. Brindavan Hotel under the following circumstances :-

The Hotel management terminated the services of certain employees on the ground that their services were not required. The Conciliation Officer, Hyderabad City, is the first respondent and the President of Brindavan Hotel Mazdoor Sangh is the second respondent. The Workers' Union raised the dispute in regard to the termination of the services of these employees. At the instance of the Union the Conciliation Officer, first respondent, issued under Industrial Disputes Act, 1947 notice to the Hotel management for bringing about conciliation of the dispute between the parties if it could be brought about. The Hotel management thereupon filed this petition in which they challenge the jurisdiction of the conciliation officer to enter upon conciliation proceedings in this case.

2. Mr. V. Jagannadha Rao, who appears for the Hotel management, has contended before us that the Hotel management and its employees are governed by Andhra Pradesh shops and Establishments Act, 1966 and that therefore the Industrial Disputes Act, 1947 is not applicable. In support of his contention he has argued that the A. P. Shops and Establishments Act, 1966 (hereinafter referred to as 'Shops Act' for the sake of brevity) being a special enactment would prevail over the Industrial Disputes Act which is a general Act. He has also argued that the shops Act which is a State Legislature will prevail over the Industrial Disputes Act which is a Central Legislation because the State Legislature received the assent of the President under Clause (2) of Article. 254 of the Constitution. According to him both these Acts occupy the same field.

3. In order to examine the contentions which Mr. Jagannadha Rao, has raised before us it is necessary to examine certain provisions of those Acts. Section 2(k) of the Industrial Disputes Act, 1947 defines 'industrial dispute' in the following terms:-

' 'Industrial Dispute' means any dispute or difference between employers and employers, or between employers and workmen, 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;'

Section 2(j) defines 'industry' in the following terms :-

' 'Industry' means any business, trade, undertaking, manufacture or calling Order. employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.'

Section 2(s) defines 'workman' in the following terms :-

' 'Workman' means any person (including apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute.'

It is not necessary to reproduce the remaining part of the definition of 'workman' because it excludes certain kinds of persons from the definition of workman.

4. In Workmen v. M/s. Dharampal : (1965)ILLJ668SC Section 2(k) of the Industrial Disputes Act was considered by the Supreme Court. While construing the ambit of Section 2(k) the Supreme Court laid down that, when literally construed, this definition might include within its scope a dispute between a single workman and his employer because the plural, in the context, would include the singular. However, having regard to the broad policy underlying the Act and in order to safeguard the interests of the working class in this country the Supreme Court observed that the majority of Industrial Tribunals and the Supreme Court itself were inclined to take the view that in spite of the width of the words used by the Act in defining an industrial dispute it would be expedient to require that a dispute raised by a dismissed employee unless it was supported either by his union or, in the absence of a union, by a number of workmen, would not become an industrial dispute. The reason for narrowing down the connotation of Section 2(k) was that if such a limitation was not introduced claims for reference might be made frivolously and unreasonably by dismissed employees and that it would be undesirable. It has been further observed that consideration which would be relevant in dealing with a dispute relating to an individual employee's dismissal, would not be material in dealing with a case of dismissal on the same day of a large number of employees. There employees can raise a dispute by themselves in a formal manner. The limitation which was introduced while interpreting the amplitude of definition of Section 2(k) was based upon pragmatic considerations. If the dismissal of an individual employee working in an establishment in Delhi was taken up by the Union of Workmen in a place away from Delhi, it would clearly not make the dispute an industrial dispute. Section 36 of the Act incidentally suggests that the Union which can raise an industrial dispute as to a dismissal validly should be a union of the same industry. The decision therefore excluded from the scope of an industrial dispute relating to a single workman not espoused by the Union or a group of workmen. It may be noted that an industrial dispute of an individual workman can be espoused in three ways. It can be espoused by the individual workman himself or by the Union of which he is a member or a group of workmen.

5. Following upon this decision of the Supreme Court which excluded from the ambit of Section 2(k) an individual dispute of an individual workman not espoused by the union or a group of workmen, the Parliament enacted Section 2-A by Central Act 35 of 1936 which provides as under

'Where any employer discharges, dismisses or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his 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.'

It is therefore clear that the cumulative effect of Section 2(k) and Section 2-A of the Industrial Disputes Act is that an individual dispute of an industrial workman whether espoused by the Union, a group of workmen or by the workman himself is also an industrial dispute. In effect Section 2-A is an extension of Section 2(k) of the Act. The language of Section 2(k) and Section 2-A is so wide that it would include any dispute between a hotel management and its employees.

6. The factors which are required to be satisfied are that the dispute or difference must be between an employer and the workmen employed by him and must be connected with the employment or non-employment or terms of employment or with the conditions of labour. When such a dispute arises the Conciliation Officer appointed under Section 4 of the Industrial Disputes Act has duty to mediate in and promote the settlement of industrial dispute. If he fails in his efforts, resort can be had to Section 10 for having reference made by the appropriate Government of the dispute inter alia to the Labour Court. The Labour Court is constituted under Section 7 of the Act for the adjudication of the industrial disputes arising out of matters specified in the second schedule to the Act and for performing any other functions which may be assigned to it under the Act.

7. The Second Schedule to the Act specifies matters which are within the jurisdiction of the Labour Court. Item 3 in the Second Schedule provides as follows:-

'Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed.'

Item 6 provides as follows :-

'All matters other than those specified in the Third Schedule.'

The Third Schedule specifies matters which are within the jurisdiction of the Industrial Tribunal constituted under Section 7-A of the Industrial Disputes Act. Section 12 lays down duties of Conciliation Officers. Sub-section (1) thereof provides that if an industrial dispute 'exists or is apprehended the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall hold conciliation proceedings in the prescribed manner'. It is therefore, clear that where an industrial dispute exists between an employer on one hand and his employee or employees on the other hand it is the duty of the Conciliation Officer to hold conciliation proceedings. Sub-section (4) and (5) of Section 12 provide that the Conciliation Officer after having mediated in the dispute between an employer and his workmen shall, in case of failure of conciliation proceedings, submit a report to the appropriate Government and that, if the appropriate Government is satisfied that there is a case for reference inter alia to the Labour Court, it may make a reference. It further provides that if the appropriate Government does not make a reference it shall record and communicate to the parties concerned its reasons therefor. A brief reference to these provisions makes it clear beyond any doubt that where an industrial dispute or difference exists between an employer and his workmen the Conciliation Officer may hold conciliation proceedings and submit his report to the appropriate Government in case of failure of conciliation proceedings. The appropriate Government thereupon has the power to make a reference of such an industrial dispute inter alia to the Labour Court and the Labour Court adjudicates upon it. The Conciliation Officer, first respondent in the instant case, issued notice to hold conciliation proceedings because prima facie the Industrial Disputes Act was attracted to the present case and it was his duty to hold conciliation proceedings between the parties. The object of settlement of an industrial dispute is to maintain industrial peace with the object of helping or promoting on healthy lines the economy of the country.

8. We now proceed to examine the relevant provisions of the Shops Act. Section 2(5) defines the 'Commercial Establishment' in the following terms :-

' 'Commercial Establishment' means any 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, and such other establishment as the Government may, by notification, declare to be a commercial establishment for the purpose of this Act but does not include a shop.'

Section 2(8) defines 'employee' in the following terms :-

' 'Employee' 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 industrial establishment who fall outside the scope of the Factories Act 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.'

Section 2(9) defines 'employer' in the following terms :-

' '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 general management or control of an establishment.'

Section 2(10) defines 'establishment' in the following terms :-

' 'Establishment' 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 purpose of this Act.'

'Shop' has been defined in Section 2(21) in the following terms :-

' 'Shop' means any premises where any trade or business is carried on or where services are rendered to customers and includes a shop run by a Co-operative Society, an Office, a Storeroom, Godown, Warehouse, or Work Place, whether in the same premises or otherwise, used in connection with such trade or business.'

9. These definitions make it clear that the expression 'establishment' is the genus while the expressions 'Commercial establishment' and 'shop' are species. The definition of 'Commercial establishment' is so wide that it will unquestionably apply to hotel business. Whether the hotel business will fall under the definition of the expression 'shop' need not be considered for the purpose of this case. The petitioner-hotel is both a lodging and boarding hotel. It also allows non-residential customer to board at the hotel. It is therefore a residential hotel cum-restaurant.

10. Section 40 provides conditions for terminating services of an employee and payment of gratuity. It inter alia provides that 'no employer shall without a reasonable cause and except for misconduct, terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee, at least one month's notice in writing or wages in lieu thereof and a gratuity amounting to fifteen days average wages for each year of continuous employment.' Apart from the monetary benefits to which an employee will be entitled in case his services are terminated one of the most important conditions precedent to the termination of his services is, that there must exist a reasonable cause for terminating his services. It contemplates both discharge simpliciter of services of an employee as well as his dismissal from service. The expression 'except for misconduct' suggest that Sub-section (1) of Section 40 applies to the case of a dismissal as well. Section 41 provides the forum with jurisdiction to hear and decide appeals arising out of the termination of services of employees under Section 40. Against the appellate decision of the authority appointed under Sub-section (1) a second appeal lies to the Labour Court constituted under Section 7 of (4) of Section 40 provides that 'the service of an employee shall not be terminated for misconduct except, for such acts or omissions and in such manner, as may be prescribed.'

11. Rule 19 of the Andhra Pradesh Shops and Establishment Rules 1968 made under Section 62 of the Shops Act lists several acts and omissions which amount to misconduct on the part of an employee. Rule. 20 lays down the procedure for terminating the services of an employee. Rule. 21 lays down the procedure for hearing appeal against the termination of the services of an employee. There provisions to which a brief reference has been made by us make it clear that Section 40 read with Rule. 19 regulates the termination of the service of an employee and specifies grounds on which he can be dismissed from service. Section 41 read with Rule. 20 and 21 provides the forum and procedure to be followed by it for challenging the discharge or dismissal of an employee. The expression 'Termination' used in Section 40 appears to us to be synonymous with the use of the expression 'discharge' used in Section 2-A and item 3 in Second Schedule to the Industrial Disputes Act. Similarly 'termination for misconduct' contemplated by the shops Act appears to us to be synonymous with dismissal contemplated by the Industrial Disputes Act.

12. A comparative analysis of the relevant provisions of these two Acts leaves no doubt in our mind that the concerned workmen of the petitioner-hotel are governed both by the Industrial Disputes Act as well as by the Shops Act. There question which has therefore arisen before us is; which one of the two Acts shall prevail over the other The Shop Act was enacted by Andhra Pradesh Legislature in 1966 but it received the Presidential assent under Article. 254 on 21st November 1969.

13. 'Industrial and Labour disputes' is a subject which falls under the concurrent list in seventh schedule to the Constitution (vide Entry 22). It is therefore clear that both the Parliament as well as the State Legislature have authority to enact legislation on this subject. Article. 254 of the Constitution inter alia provides that 'if any provision of a 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 matters enumerated in the Concurrent list, then, subject to the provisions of Clause (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.'

14. Clause (2) of Article. 254 provides an exception in the following terms :-

'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.'

Proviso to Clause (2) of Article. 254 is not relevant for the present purpose. Therefore the scheme of Article. 254 is that ordinarily it is the parliamentary legislation or an existing central legislation which prevails over the State Legislature where there is repugnancy between the provisions of the two. However if the State Legislature has enacted a legislation in respect of a matter falling under the concurrent list and if it has received the Presidential assent then in case of repugnancy between the provisions of such a State Legislature and the earlier Central Legislation it is the State Legislation which prevails over the central Legislation. The question therefore which we are required to consider is whether there is any repugnancy between the relevant provisions of the Industrial Disputes Act and those of the Shops Act.

15. In some other context this question was considered by a Full Bench of this Court in Visakhapatnam Dist. Marketing Co-operative Society v. Government of Andhra Pradesh, (1977) 1 APLJ 160 : (1977 Lab IC 959) (FB). The dispute which arose between Visakhapatnam District Co-operative Marketing Society Ltd., and the third respondent to that petition was an individual dispute between the employer and the employee and it was not espoused by the Union or a group of employees. After having considered the relevant provisions of the Industrial Disputes Act and the Shops Act to which we have made reference and after having considered the accepted tests of repugnancy as between the competing statutes laid down by the Supreme Court in Tika Ramji's case : [1956]1SCR393 , this Court took the view that the Industrial Disputes Act is a statute of wide import enacted for the settlement of industrial disputes in general in the interests of industrial peace and harmony and that the Shops Act. on the other hand covers a much narrower field in so far as it applies to shops and establishments and not to other industries. It has further been observed in that decision that the two enactments do not cover the same field. While taking this view the Division Bench decision of the Mysore High Court in New Taj Mahal Cafe v. Its Workmen, (1969) 1 Lab LJ 279 : (1968 Lab IC 1149) (Mys) has been referred to with approval. The decision of Patna High Court in Jagdish Vastralaya v. State of Bihar : AIR1964Pat180 has also been referred to with approval. The question came up before the Mysore High Court in the decision, first referred to in the context of Madras Shops and Establishments Act, 1947 and a similar question came up before the Division Bench of the Patna High Court in the case, next referred to, in the context of Bihar Shops and Establishments Act.

16. It has next been observed that the dispute of an individual workman in regard to the termination of his services squarely falls within the field covered by Sections 40 and 41 of the Shops Act. Therefore the Full Bench took the view that there was repugnancy to this extent between Sections 40 and 41 of the Shops Act. and Section 2-A of the Industrial Disputes Act. Having taken that view the Full Bench further laid down that since the provisions of Shops Act. had been assented to by the President under Clause (2) of Article. 254 it must prevent over Section 2-A of the Industrial Disputes Act in so far as the dispute of an individual workman not espoused by the union or a number of workmen was concerned. The Full Bench has in terms stated that they express no opinion on the legal position which would arise if an individual dispute of a workman espoused either by the union to which he belongs or in the absence of a union by a number of workmen and if such a matter or dispute is sought to be referred to adjudication under Section 10(1) of the Industrial Disputes Act. This decision has set at rest the controversy that so far as the State of Andhra Pradesh is concerned an individual dispute or difference between an employer and an employee not espoused by the union or a number of workmen is governed by the Shops Act. They have expressed no opinion on the legal position which would arise if an individual dispute of an individual workman is espoused by the union or in the absence of an union by a number of workmen. In this Full Bench reference we are required to consider the question on which the earlier Full Bench has expressed no opinion. In the instant case a large number of workmen have been discharged from their service by the petitioner-hotel and their case has been espoused by the union, the second respondent. Is such a dispute, under the circumstances stated above, governed by the Industrial Disputes Act or by the Shops Act. ?

17. In this context it is necessary to note that a union or a number of workmen who may think fit to espouse the cause of the workman do not have any locus standi under the Shops Act. They cannot take resort to Sections 40 and 41 to agitate an individual dispute between an individual employee and the employer. Now if the Shops Act. which is a State Legislation and which has received the Presidential assent is to prevail over the Industrial Disputes Act, the dispute between the discharged workmen and their employer will have to be agitated by each concerned employee before the forum provided by the Shops Act. We see no conflict between the relevant provisions of the Industrial Disputes Act and the relevant provisions of the Shops Act. because in our opinion they do not operate in the same area. In our opinion there are no two competing statutes in this field. The workmen's union or a number of workmen can espouse an individual dispute of an individual workman only under the Industrial Disputes Act. They cannot espouse it under the Shops Act.

18. Therefore so far as the right of a union or a number of workmen to espouse the cause of an individual workman is concerned, we find it only under the Industrial Disputes Act. Indeed if an individual workman wants to espouse his own cause then, as held in the decision of the earlier Full Bench, the individual workman has to take resort to the provisions of the Shops Act. In other words the position which emerges from the comparative analysis of the relevant provisions of these two enactments, when we read in light of the earlier decision of the Full Bench of this Court referred to above, is as follows :-

(1) If an individual workman governed by both these acts wants to raise an individual dispute he can do so only under the Shops Act.

(2) If a workmen's union wants to espouse the individual dispute of an individual employee it can do so only under the Industrial Disputes Act, and

(3) in the absence of workmen's union if a number of workmen want to espouse an individual dispute of an individual workmen they can do so only under the Industrial Disputes Act.

19. The entire substratum of the Industrial Disputes Act rests upon the principle of collective bargaining so that an individual workman incapable of bargaining with his employer on account of his weak economic condition does not suffer. To take the view which Mr. Jagannadha Rao wants us to take is to deny the benefits of collective bargaining and community of interest to an individual workman whose case wants to be espoused by his union or in the absence of a union by a number of workmen. In other words to hold that in case of an individual dispute of an individual workman resort can be had only to the provisions of the Shops Act. is to exclude the Union or a number of workmen from that field and to give a go-by to the principles of collective bargaining and community of interest. We do not think we can take any such view because to do so is to put back the clock of social progress.

20. It is too late in the day now to contend, as Mr. Jagannadha Rao had done, that the Industrial Disputes Act confers no right upon the workmen's union or a number of workmen to espouse the cause of a single individual workman. In the case of Workmen v. Dharampal : (1965)ILLJ668SC (supra) the Supreme Court has clearly recognised such a right of workmen's union or a number of workmen after having considered the provisions of Section 2(k) of the Industrial Disputes Act.

21. In the Workmen v. Indian Express, the Supreme Court has referred with approval to its earlier decision referred to above. In fact the enactment of Section 2-A has removed the impediment in the way of an individual workman espousing his individual dispute under the provisions of the Industrial Disputes Act. However, as held by this Court in its earlier Full Bench decision referred to above, the provisions of Sections 40 and 41 of the Shops Act. prevail over Section 2-A of the Industrial Disputes Act in so far as the espousal of his own case by an individual workman is concerned. Therefore though the disability which an individual workman suffered in the espousal of his individual dispute has been removed by Section 2-A of the Industrial Disputes Act it appears to have been re-imposed by Sections 40 and 41 of the Shops Act. read with other provisions of that act. We are not prepared to extend the principle laid down by this Court in the earlier Full Bench decision referred to above to the espousal of an individual dispute by a number of workmen or by a union because it will cut across the principle of collective bargaining which is nothing but an agreement between a single employer or association of employers on one hand and a labour union on the other hand regulating the terms and conditions of employment. The principle of collective bargaining has been developed through decades and rests upon the quality of labour through the recognition of collective negotiations by their Union. This development of trade union movement cannot be set at naught by acceding to the argument which Mr. Jagannadha Rao has raised. The collective bargaining has come to stay because of its union strength. It is an essential feature of the modern trade union movement and it is community of interest of the workmen as a whole which furnishes the real nexus between the dispute and the parties to the dispute. Mr. Jagannadha Rao has indeed cited a number of additions on the question of repugnancy. We are shortly making a brief reference to these decisions. However, so far as the right of the Union or, in the absence of a union, of a number of workmen to espouse the cause of an individual workman is concerned we do not find any occupied field nor do we find any repugnancy.

22. Mr. Jagannadha Rao has however argued that repugnancy within the meaning of Article. 254 can only be in regard to the subject-matter of dispute and that it cannot be in regard to the right to raise a dispute. In Stewart v. Brojendra Kishore (AIR 1939 Cal 628) it has been laid down by a Division Bench of Calcutta High Court consisting of R. C. Mitter and Narsinga Rao, JJ. that it is too narrow a test to say that two laws cannot be said to be properly repugnancy where both laws say 'don't' but in different ways. The true test is that if the dominant law has expressly or impliedly evidenced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case the dominant law evinces such an intention must necessarily depend on the language of the particular law.

23. In Tika Ramji v. State of U. P. : [1956]1SCR393 this question was considered by the Supreme Court. Extensive reference has been made to this decision of the Supreme Court in the earlier Full Bench decision of this Court referred to above. Three tests have been laid down by the Supreme Court in that decision in paragraphs 26 to 33 of the report for the purpose of determining the repugnancy between two competing statutes. (1) Where the law made by the Parliament and the law made by the State Legislation occupy the same field, there is repugnancy between the two. If both these pieces of legislation deal with separate and distinct matters of cognate and allied character repugnancy does not arise. In other words there may be inconsistency in the actual terms of the competing statutes. (2) There may not be a direct conflict between State Law and Central Law but the Central Law is intended to be a complete Code and therefore the State Law may be inoperative. (3) The third test is that a conflict may arise when both the State and the Centre seek to exercise their powers over the same subject-matter. The Supreme Court has referred with approval in this behalf to certain Australian decisions.

24. In Deep Chand v. State of U.P. : AIR1959SC648 the Supreme Court has reiterated the same tests. It has been observed that the repugnancy between two statutes may be ascertained on the basis of the following three principles:

'1. Whether there is direct conflict between the two provisions;

2. Whether Parliament intended to lay down an exhaustive Code in respect of the subject-matter replacing the Act of the State Legislature; and

3. Whether the law made by Parliament and the law made by the State Legislature occupy the same field.'

25. In State of Orissa v. M.A. Tuloch and Co., : [1964]4SCR461 it has been laid down by the Supreme Court that the repugnancy arises when two enactments both within the competence of the two legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other than to the extent of the repugnancy the one supersedes the other. It has also been observed that two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy because if a competent legislature with a superior efficiency expressly or impliedly evidences by its legislation and intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. When such is the position the inconsistency is not demonstrated by a detailed comparison of the provisions of the two pieces of legislation.

26. Applying this principle to the facts of the present case we are of the opinion that the Shops Act - a State Legislation does not evince the intention to cover the field of adjudication of individual disputes at the instance of a workmen's union or at the instance of a group of workmen. Generally speaking the union or a number of workmen espouse the cause of an individual workman when they think that the question raised by it is likely to affect them at large.

27. It has been argued by Mr. Jagannadha Rao that the Shops Act is a special statute which would prevail over the Industrial Disputes Act which in its turn is a general statute. This in our opinion is an oversimplification of the problem. In a case where a State legislation and a Central Legislation purport to occupy the same field we have got to determine whether they occupy the same field and, if they do so, whether they collide or come in conflict with each other. If they do not occupy the same field no question or resolving the conflict between the two or removing the collision between them arises. If they occupy the same field then the collision or the conflict has to be removed only in terms of the direction of given by Art. 254. This argument was advanced in the earlier Full Bench decision of this Court referred to above. We may state that it has been rejected by this Court. Therefore so far as this Court is concerned the question of reconsideration of the validity of this argument does not arise.

28. Mr. Jagannadha Rao has further argued that when a Union or a group of workmen espouse an individual dispute of an individual workman the character of the dispute does not change not is it altered. According to him therefore it does not move out of the occupying field. We are unable to uphold this argument. Bearing in mind the principles of collective bargaining and the community of interest which have come to stay in modern society we have no doubt in our mind that the character of an individual dispute espoused by an individual workman is very much different from the character of such a dispute espoused by a union of workmen or, in the absence of an union, by a number of workmen (vide observation made by Venkatarama Ayyar J. in Central Provinces Transport Services Ltd. v. Raghunath Gopal, : (1957)ILLJ27SC

29. The next argument which Mr. Jagannadha Rao has raised, has reference to R. 21-A of the Rules made under the Shops Act. This rule was inserted on 13-1-1977. It has therefore no application to the present dispute which arose long before the rule was made. R. 21-A provides that any person who desires to act on behalf of an employee whose appeal against the termination of his services is pending may apply to the authority from the employee praying for permission to so act. Mr. Jagannadha Rao has argued that this rule enables the union, where there is one, to represent an individual employee in his individual dispute before the authority specified under S. 41. We are not sure whether the union can represent an employee under this rule. However, we are clear in our mind that R. 21-A provides only for the representation of an employee before the authority constituted under S. 41 of the Shops Act in the same manner in which a lawyer represents his client before a Court of law. Even if a union does it under R. 21-A cannot do anything more than represent the employee in such manner as lawyer represents his client before a Court of law. Rule 21-A does not provide for representation of an employee on the basis of the principle of collective bargaining and community of interest which are embodied in the Industrial Disputes Act. Rule 21-A appears to be similar to R. 38 of Andhra Pradesh Industrial Disputes Rules.

30. The last argument which has been raised is that the State Legislature has constituted the Labour Court, established under S. 7 of the Industrial Disputes Act as second appellate Court under sub-sec. (3) of S. 41 of the Shops Act and that, therefore, the State Legislature has intended that what falls within the purview of the Shops Act shall not agitated under the Industrial Disputes Act. We are unable to uphold this argument raised by Mr. Jagannadha Rao because the Constitution of the Labour Court under the Shops Act, does not confer upon the Union or a number of workmen the right to represent and agitate an individual workman. Secondly the State Legislature could have as well constituted the District Court or the High Court as second appellate Court under the Shops Act. Therefore merely because the Labour Court has been constituted as the second appellate Court under the Shops Act the inference which Mr. Jagannadha Rao wants us to draw cannot be drawn.

31. Our attention has been invited to the decision of the Allahabad High Court in Cawnpore Sugar Works Ltd. v. Dr. B.P. Mohindra (1971 (2) Lab LJ 169)(All). The question which in that case arose was in the context of S. 2-A of the Industrial Disputes Act, 1947. The facts of that case were as follows:- One Mohindra, a Medical Officer, was dismissed from service on 12-1-1968. He complained that his dismissal was unjustified. Therefore the dispute was referred to by the State Government to the Industrial Tribunal, Lucknow, under S.4-K of the U.P. Industrial Disputes Act, 1947. The employer contended that there was no Industrial dispute as defined under the U.P. Industrial Disputes Act, 1947 and that therefore the reference was incompetent. The Industrial Tribunal overruled that objection and held that the reference was competent. That decision was challenged before the Allahabad High Court. The question which arose before the High Court related to the impact of Art. 254 of the Constitution on S. 2-A of the U.P.Industrial Disputes Act, 1947. The Allahabad High Court held that the effect of amending the Industrial Disputes Act, 1947 by introducing S. 2-A was to amend the definition of the expression 'industrial dispute' given in it. They further held that on account of that reason it did not follow that the definition of the expression 'Industrial Dispute' given in it. They further held that on account of that reason it did not follow that definition of the expression 'Industrial Dispute' given in U.P.Act stood automatically amended. They further held that the operation of S.2-A of the Industrial Disputes Act, 1947 should be confined to matters governed by the Central Act. Relying upon the decision of the Supreme Court in Workmen v. Dharampal : (1965)ILLJ668SC the Allahabad High Court held that there were two alternative remedies available for converting an individual dispute into an industrial dispute for the purpose of U.P.Act. A workman's case may be taken up by a Union of workmen where he is a member of the union or his case may be taken up by a number of employees. In that case the U.P. Industrial Disputes Act, 1947 would govern the dispute. They further held that if an individual case was not espoused by the Union or a group of workmen it would not be governed by the U.P. Act. The Allahabad High Court therefore held that the reference made to the Industrial Tribunal, Lucknow under U.P. Act was incompetent because the individual dispute of Dr. Mohindra was not espoused by the Union or a number of workmen.

32. It has been argued on behalf of the Conciliation Officer, first respondent, that the Shops Act has no application to the instant case. Mr. Ramaswamy has in that context invited our attention to sub-sec. (1) of S. 40 of the Shops Act, which inter alia provides that no employer shall, without reasonable cause and except for misconduct, terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee at least one month's notice in writing or wages in lieu thereof and a gratuity amounting to fifteen days' average wages for each year of continuous employment. He has emphasised the expression 'for a period not less than six months' and argued that the remedy provided under S. 40 of the Shops Act is not available to persons who have not completed a period of six months of service. He has pointed out to us from the writ petition itself that none of the concerned employees had completed six months of service. According to him therefore the Shops Act has no application to the instant case. That in our opinion is not the correct answer to the problem which has been posed before us. Sub-section (1) of S. 40 lays emphasis upon the period of not less than six months not in the context of determining whether S. 40 of the Shops Act would apply to a particular case. But it lays emphasis on the requirement that an employee who has completed six months of service or more shall be entitled, before he is discharged from service, to one month's notice in writing or in wages in lieu thereof and to a gratuity amounting to 15 days' average wages for each year of continuous employment. The two monetary benefits provided under sub-sec. (1) of S. 40 have been made available only to those employees who have completed six months service or more. The way in which Mr. Ramaswamy has read sub-sec. (1) of S. 40 have been made available only to those employees who have completed six months service or more. The way in which Mr. Ramaswamy has read sub-sec. (1) of S. 40 is an oversimplification of the problem. We are not able to uphold his argument. The scope of S. 40 (1) is, in this context, entirely different from what Mr. Ramaswamy has argued.

33. The next argument which Mr. Ramaswamy has raised does not add to the strength of the view which we have expressed. His argument is that there is no repugnancy because whereas the Industrial Disputes Act provides for conciliation proceedings the Shops Act does not do so. In our opinion this is not the correct way of looking at the problem. We cannot say that because the Shops Act does not provide for conciliation proceedings there is no repugnancy between the Shops Act and the Industrial Disputes Act- the latter mentioned Act provides for conciliation proceedings. Provision for conciliation proceedings is merely one of the details which the Industrial Disputes Act, 1947 has provided for the purpose of maintaining Industrial peace. The question before us is not whether one Act provides for conciliation proceedings and another does not provide for it but whether the Industrial Disputes Act applies to the instant case or whether the Shops Act applies then the conciliation proceedings, reference to the Labour Court and the adjudication by the Labour Court follow as a matter of course as they are the creatures of that Act.

34. On the test of repugnancy our attention has been invited to the decision of the Bombay High Court in State v. Zaverbhai : AIR1953Bom371 and to the decision of the Supreme Court in the same case in appeal reported in Zaverbhai v. State of Bombay : [1955]1SCR799 and to the decision of the Madras High Court in Palaniappa v. Md. Rowther : AIR1965Mad54 . It is not necessary to make any detailed reference to these decisions because we are, in light of the principles laid down by the Supreme Court in other decisions referred to above, of the opinion that there is no repugnancy in the instant case between the provisions of the two statutes. The last decision to which our attention has been invited is in I.T. Commr., Bangalore v. Hanumathappa & Sons (AIR Mysore Income-tax Act 1923). The facts of the case show that that decision cannot be made use of for the purpose of determining the controversy which has been raised before us.

35. The last argument which has been advanced on behalf of the respondents is that S. 25-J of the Industrial Disputes Act provides that the provisions of this chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act 1946'. On the strength of this section it has been contended that the Industrial Disputes Act will prevail over the Shops Act because the provisions of the latter are inconsistent with the provisions of the former. That in our opinion is also an erroneous way of reading S. 25-J. Section 25-J confines its applicability to chapter V-A of the Industrial Disputes Act, 1947 which deals with lay-off and retrenchment. It cannot be extended to matters not falling within that chapter. The problem with which we are concerned in the present petition does fall within the scope and ambit of Chapter V-A of the Industrial Disputes Act,1947.

36. In the result we are of the opinion that the conciliation proceedings instituted before the first respondent at the instance of second respondent, do not, for the reasons stated in this judgment suffer from want of the authority on the part of the first respondent. The second respondent has the right to agitate this question only under the Industrial Disputes Act 1947. The Shops Act has no application to the instant case. There is therefore no substance in this petition. The petition is therefore dismissed. Since the question has turned upon the comparative analysis and construction of the Central and State enactments we direct that there will no order as to costs of the petition. Advocate's fee is fixed at Rs.250.

37. Petition dismissed.


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