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Commercial and Industrial Bank Limited Vs. Authority Under Payment of Wages Act and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 39 of 1956
Reported in(1958)IILLJ31AP
ActsPayment of Wages Act, 1936 - Sections 15; Constitution of India - Article 226; Hyderabad Companies Act, 1320; Hyderabad Shops and Establishments Act, 1951 - Sections 2(5), 2(8), 4(1) and 37
AppellantCommercial and Industrial Bank Limited
RespondentAuthority Under Payment of Wages Act and ors.
Excerpt:
.....of constitution of india, hyderabad companies act, 1320 and sections 2 (5), 2 (8), 4 (1) and 37 of hyderabad shops and establishments act, 1951 - authority under payment of wages act of 1936 directing petitioner-bank to show cause in a matter pertaining to payment of wages to retrenched employees - petitioner challenging jurisdiction of said authority to pass such direction - no notification authorizing authority to pass such direction - hyderabad shops and establishments act of 1951 does not authorize authority to entertain petition under section 37a - held, authority erring in directing petitioner-bank to show cause. - - therefore banks are clearly establishments as defined in s. it is well settled that an interpretation clause of a comprehensive character is not to be taken as..........contentions before me :(i) that the hyderabad shops and establishments act does not apply to the bank establishments; and(ii) that the respondent 1 had no jurisdiction to entertain the petition on the date on which it was presented having regard to the fact that there was no notification designating him as the 'authority' under s.37a of the act.3. for an appreciation of the first of the above contentions, it is necessary to read the preamble and the relevant provisions of the hyderabad shops and establishments act (hereinafter referred to as the act). the preamble states that the act has been made for the regulation of conditions of works in shops, commercial establishments, restaurants, theatres and other establishments and for certain other purposes. 'commercial establishment' has.....
Judgment:
ORDER

1. This is an application, under Art. 226 of the Constitution of India, for the issue of writs of certiorari and prohibition to quash the order of 'the Authority under the Payment of Wages Act' dated February 21, 1956 and for a direction or order prohibiting the said authority from further enquiring into the petition filed by respondents 2 to 7 before him. The Commercial and Industrial Bank, Ltd., was registered as a joint-stock company in the year 1352 F. under the Hyderabad Companies Act of 1320 F. The respondent 1 is the Authority under the Payment of Wages Act, 1936, having been appointed as such under a notification issued by the Hyderabad Government on September 14, 1956 and published in the official gazettee on September 27, 1956. Respondents 2 to 7 were employees of the petitioner bank.

2. On July 20, 1955, the Reserve Bank of India served a notice on the petitioner-bank refusing to give a licence, which according to the petitioner, had resulted in the bank ceasing to transact banking business. On August 1, 1955, the petitioner-bank served notice on its employees (respondents 2 to 7) giving them intimation of its intention to terminate their services subject to the payment of a month's salary. Respondents 2 to 7 thereupon filed a petition before the Labour Commissioner, Hyderabad, seeking his interference alleging that there was a retrenchment by the bank. The Labour Department initiated conciliation proceedings which finally resulted in an agreement between the parties on September 27, 1955. Pursuant to the said agreement, the petitioner-bank issued fresh notices on September 28, 1955 intimating respondents 2 to 7 that their services should be treated as terminated with effect from the afternoon on September 27, 1955. On October 24, 1955 respondents 2 to 7 filed a petition before respondent 1 under S. 37A read with S.2(5) of the Hyderabad Shops and Establishments Act (X of 1951) as amended by Act XXX of 1952 seeking an order for payment of Rs. 41-14-6 towards their wages in respect of the period form September 28, 1955 to September 30, 1955. On this petition being presented before him, the respondent 1 called upon the petitioner bank to show cause as to why the prayer of respondents 2 to 7 be not allowed. By means of a counter filed on November 16, 1955, the petitioner-bank took objection to the jurisdiction of the respondent 1 to entertain the petition. In an interim order dated February 15, 1956, the respondent 1 repelled the objection raised by the petitioner bank to his jurisdiction and directed the parties to adduce their contentions on the merits. On the said order being communicated to the petitioner-bank, the bank filed the above writ petition for the reliefs enumerated above. Mr. Siva Rama Sastri appearing for the petitioner-bank has raised two contentions before me :

(i) that the Hyderabad Shops and Establishments Act does not apply to the bank establishments; and

(ii) that the respondent 1 had no jurisdiction to entertain the petition on the date on which it was presented having regard to the fact that there was no notification designating him as the 'authority' under S.37A of the Act.

3. For an appreciation of the first of the above contentions, it is necessary to read the preamble and the relevant provisions of the Hyderabad Shops and Establishments Act (hereinafter referred to as the Act). The preamble states that the Act has been made for the regulation of conditions of works in shops, commercial establishments, restaurants, theatres and other establishments and for certain other purposes. 'Commercial establishment' has been defined in S. 2(5) as follows :-

''Commercial establishment' means an establishment which is not a shop but which carried on the business of advertising, commission forwarding or commercial agency or which is a clerical department of a factory or industrial undertaking, broker's office or exchange and includes such other establishment as the State Government may by notification declare to be a commercial establishment for the purpose of this Act.'

4. The definition of 'establishment' is contained in S.2(8) of the Act which reads :

''Establishment' means a shop, commercial establishment, restaurant, eating house, residential hotel, theatre or any place of public amusement or entertainment and includes such establishment as the State Government may by notification declare to be an establishment for the purpose of this Act.'

5. Section 4 of the Act exempts certain persons and establishments from the operation of the Act and the material provision reads :

'4. (1) Nothing contained in this Act shall apply to -

(a) to (f) * * *(g) establishments in banks.'

6. Relying upon this exemption made in favour of 'establishments in banks, ' counsel for the petitioner has argued that respondents 2 to 7 who are part of the clerical establishment in the bank are not entitled to claim the benefits of the Act. Section 2(5) mentions 'bank' as being within the definition of 'commercial establishment' and S. 2(8) defines 'establishment' as meaning commercial establishment. Therefore banks are clearly establishments as defined in S. 2(8). Learned counsel for the petitioner argues that S. 4(1)(g) contains a specific exemption in favour of 'establishments in banks' and that therefore this provision must prevail. If an establishment comprehends within its scope a bank, the provision in S. 4(1)(g) must be read as 'bank in banks' which certainly makes no sense. It is well settled that an interpretation clause of a comprehensive character is not to be taken as strictly defining what the meaning of a word must be under all circumstances but merely as declaring what things may be comprehended within the term where the circumstances require that they should. Applying this well-known canon of construction to the instant case and having regard to the intention of the legislature which is broadly stated in preamble of the Act, Cl. 1(g) of S. 4 must be understood as applying to establishments such as canteens, restaurants, co-operative societies, stores, etc., which may be functioning within the premises of a bank. If the intention of the legislature were to exempt the clerical establishment in banks from the operation of the Act. Cl. 1 (g) would have read as 'establishments in banks.' It is no doubt true that the argument advanced by the learned counsel for the petitioner is plausible, but, taking an overall view of the expressed intention of the framers of the Act in the preamble and the language employed in Cl. 1(g) of S. 4, I have come to the conclusion that clerical establishments in banks are not excluded from the benefits of the Act. Coming to the second of the contentions raised by the learned counsel for the petitioner, it is necessary to note that the Shops and Establishments Act when it was originally enacted did not contain S. 37A. It was added by Act XXX of, 1952 published in the Gazette Extraordinary, dated July 25, 1952. Section 37A makes the provisions of S. 15 of the Payment of Wages Act applicable mutatis mutandis to claims arising out of deductions from wages payable under the Hyderabad Shops and Establishments Act and provides that the reference to an Inspector under S. 15 of the Payment of Wages Act shall be deemed to be a reference to the Inspector appointed under the Hyderabad Act. The unamended Act no doubt contained a provision viz., S. 46, which empowered the State Government, by notification to authorize any officer or authority subordinate to them to exercise any one or more of the powers vested in them or by under this Act. It is common ground that the State Government did not make any notification under S. 46 authorizing any officer or authority to exercise those powers. A notification was made by the Hyderabad Government only on September 14, 1956 which was published in the official gazette on September 27, 1956. It reads :

'HYDERABAD GOVERNMENT GAZETTE, DATED SEPTEMBER 27, 1956

Labour Department.

Notifications.

(Under Hyderabad Shops and Establishments Act.)

No. L/114/56/62. Dated September 14, 1956.

In exercise of the powers conferred by S.37A of the Hyderabad Shops and Establishments Act, 1951 (X of 1951), read with S.15 of the Payment of Wages Act, 1936 (IV of 1936), the Rajpramukh hereby appoints the Labour Commissioner and the Deputy Labour Commissioners who have been notified as Commissioners for Workmen's Compensation (under Labour Department notifications No. 129, dated August 31, 1951. Gazette, Part I-D., dated September 27, 1951 p. 941, and No. 172, dated October 24, 1952, Gazette Extraordinary No. 167, dated October 28, 1952, p. 1117) to be the 'authorities' to hear and decide all claims arising out of deductions from the wages or delay in payment of wages of persons employed in establishments situated at the places wherein the provisions of the Hyderabad Shops and Establishments Act (X of 1951) have been brought into force.'

7. Now, it has to be noted that the application filed by respondents 2 to 7 before the respondent 1 was on October 24, 1955. As has been already noted, the amending Act was published in the gazette on July 25, 1952 and the notification was made on September 14, 1956, i.e., four years after the amending Act was incorporated in the statute. During these four years and even prior thereto, there was no notification made under the Shops and Establishments Act authorizing any officer to exercise the powers vested in the Government under that Act and it was during the pendency of the application filed by respondents 2 to 7 that this notification empowering the Labour Commissioner and the Deputy Labour Commissioner to be the authorities to hear and decide all claims under the Act, was issued. Having regard to the fact that on the date on which the petition was presented before the respondent 1, there was no notification authorizing him to hear and decide the claims arising out of the Shops and Establishments Act, he had no jurisdiction to entertain the petition as is clear from the language employed in S. 37A that such a notification is an essential condition for the exercise of jurisdiction by the respondent 1.

8. Here it is necessary to deal with the contention raised by Mr. Chowdary, the learned Government Pleader on behalf of the respondents According to him, the petition was presented and was pending on the file of the respondent 1 and though on the date the respondent 1 passed the interim order, the notification required under S 37A had not been made, it would only have the result of invalidating the interim order, but it would not affect the competence of the respondent 1 to deal with the petition, as during the pendency of the petition, the necessary authority was conferred on him by means of the notification referred to above. The difficulty in accepting this contention lies in the fact that the respondent 1 on the date on which he entertained the petition had no jurisdiction to do so and the subsequent notification would not confer that jurisdiction which he initially lacked, firstly, because in a matter like this there can be no retrospective vesting of jurisdiction, and, secondly, because the notification itself made no reference to pending applications. The second contention raised by the learned counsel for the petitioner must therefore be accepted. If so, there is patent want of jurisdiction on the part of the respondent 1 to deal with the petition presented by respondents 2 to 7 on October 24, 1955. If the above conclusion is correct, this writ petition must succeed. A writ of prohibition will issue restraining the respondent 1 from dealing with the petition. The petitioner will have his costs from the respondents. Advocate's fee Rs. 100.


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