Skip to content


Anamalais Bus Transport Private Ltd., Chalakudi Vs. D. Ramakrishna Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberO.P. No. 1405 of 1965
Judge
Reported inAIR1967Ker225; (1967)ILLJ498Ker
ActsKerala Shops and Commercial Establishments Act, 1960 - Sections 18; Motor Transport Workers Act, 1961 - Sections 2 and 27(3); Constitution of India - Article 254
AppellantAnamalais Bus Transport Private Ltd., Chalakudi
RespondentD. Ramakrishna Pillai and anr.
Appellant Advocate V.K.K. Menon,; M. Ramachandran and; C.J. Balakrishnan
Respondent Advocate M.P. Menon and; O.K. Namboodiripad, Advs. for Respondent No. 1 and;Government Pleader for Respondent
DispositionPetition dismissed
Cases ReferredManohar Lal v. The State
Excerpt:
.....- section 18 of kerala shops and commercial establishments act, 1960, sections 2 and 27 (3) of motor transport workers act, 1961 and article 254 of constitution of india - petition to quash order to reinstate respondent - dismissal raises question whether section 18 repugnant to or inconsistent with provisions of central act - repugnancy required to be considered only where both laws are with respect to matters enumerated in concurrent list - conflict between state list and union list - neither conflict nor repugnancy found - petition fails. - - 7. it was also pointed out by the counsel for the respondents that by reason of section 1 (4) of the central act, it applies only to an undertaking employing five or more motor-transport workers and there is nothing to show that the..........and commercial establishments act 1960 (act 84 of 1960) is inconsistent with, or repugnant to, the motor transport workers act 1981 (central act 27/1981) (hereinafter referred toas the 'kerala act' and the 'central act'). the petitioner is the manager of the anamalais bus transport ltd. the 1st respondent was a temporary employee under the petitioner from 7-2-1964 to 10-6-1964. on an appeal preferred by 1st respondent to the 2nd respondent, (theepellate authority under section 18 of the kerala shops and commercial establishment act 1960), the 2nd respondent found that there had been an illegal termination of the service of the 1st respondent and directed the 1st respondent's reinstatement with a payment of rs. 250 in lieu of back wages for the period for which he was kept out of.....
Judgment:
ORDER

V.P. Gopalan Nambiyar, J.

1. The question that was debated in this O. P. is whether the Kerala Shops and Commercial Establishments Act 1960 (Act 84 of 1960) is inconsistent with, or repugnant to, the Motor Transport Workers Act 1981 (Central Act 27/1981) (hereinafter referred toas the 'Kerala Act' and the 'Central Act'). The petitioner is the Manager of the Anamalais Bus Transport Ltd. The 1st respondent was a temporary employee under the petitioner from 7-2-1964 to 10-6-1964. On an appeal preferred by 1st respondent to the 2nd respondent, (theEpellate authority under Section 18 of the Kerala Shops and Commercial Establishment Act 1960), the 2nd respondent found that there had been an illegal termination of the service of the 1st respondent and directed the 1st respondent's reinstatement with a payment of Rs. 250 in lieu of back wages for the period for which he was kept out of employment. On default, the petitioner was directed to pay the 1st respondent a further sum of Rs. 500 in lieu of reinstatement and all other claims, before a specified date. This writ petition is to quash the said order, a certified copy of which, if Ext P-1. Section 18 (1) and (2) of the Kerala Shops and Establishments Act 1960 read as follows:--

'Notice of dismissal -- (1) No employer shall dispense with the services of an employee employed continuously for a period of not less than six months, except for a reasonable cause and without giving such employee at least one month's notice or wages in lieu of such notice; provided however that such notice shall not be necessary where the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose.

(2) Any employee whose services are dispensed with may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.

x x xx

The preamble to the Act states that it is an Act to consolidate and amend the law relating to the regulation of conditions of work and employment in the shops and commercial establishments in the State of Kerala. My attention was called to sections 6 - 9, 11, 13, 14, 12, 19 and 20 of the Act. The Motor Transport Workers Act 1961 is an Act to provide for the welfare of motor transport workers and to regulate the conditions of their work. Attention was called to Sections 13, 26, 15, 16, 19. 27, 28, 25, 21 and Sections 8 - 12 enacted with a view to secure the object of the Act, and it was contended that there is substantial identity or correspondence between these provisions of the Central Act and the provisions of the Kerala Act referred to earlier. Section 37(1) of the Central Act 27 of 1961, in so far as it material reads as follows:

'37. Effect of laws and agreements inconsistent with this Act.

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act:

X X X

And Section 81 of the Kerala Act reads:

'81. Saving of certain rights and privileges --Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to on the date this Act comes into force, under any other law, contract, custom or usage applicable to such establishment, or any award: settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.'

There is no provision corresponding to Section 18 of the Kerala Act, in the Central Act 27 of 1961. The Kerala Act received the assent of the President on 16th December 1960 and was published in the Gazettes on 23rd December 1960. The Central Act received the assent of the President on 20-5-1961 and was published in the Gazette on 22-5-1961.

2. On the above provisions of the two Acts, counsel for the petitioner contended that the same field covered by the Kerala Act namely conditions of work and employment in Shops and Commercial Establishments was also covered by the Central Act, with specific reference to the welfare and conditions of service of motor transport workers. It was contended that the Kerala Act being inconsistent with or repugning to, the Central Act, was void under Article 254(1) of the Constitution. It was further contended that the Central Act having dealt specifically with the conditions of Service of motor transport workers would exclude the Kerala Act dealing generally with the conditions of service of workers in all shops and commercial establishments.

Article 254(1) of the Constitution reads:

'254 (1) 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.'

(3) It was common ground before me that the legislative power for the two Acts could be traced to entries 28 and 24 of List III of Schedule VII of the Constitution of India. Both the legislatures being competent to enact the respective statutes, the question of repugnance of the one to the other falls to be examined. In Ch. Tika Ramji v. State of Uttar Pradesh, AIR 1956 SC 676, the question of repugnance of the U. P. Sugarcane (Regulation of Supply and Purchase) Act 1953 to the Industries (Development and Regulation) Act of 1951, and to the Essential Commodities Act of 1955 arose for consideration. At page 698, the Supreme Court observed:

'We are here concerned with the repugnancy if any arising by reason of both Parliament and State Legislature having operated in the same field in respect of a matter enumerated in the concurrent List. . ...'

4. The concept of repugnancy was discussed in paragraphs 27 to 36 of the judgment. The Supreme Court noticed the conclusive test of inconsistency laid down by Isaacs J. in Clyde Engineering Co. Ltd. v. Cowburn, 1926-37 CLR 466. The said test was: 'If however, a competent legislature expressly or implicitly evinces its intention to cover the whole field that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.' The Supreme Court also cited with approval the following principle stated by Dixon J. in Ex parte Mclean. 1930-43 CLR 472.

'If it appeared that the Federal Law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State, to govern the same conduct or matter.'

Analysing the question of repugnancy in the light of the above principles, the Supreme Court held that both the Parliament and the Central Government, were within their power in enacting the Central Act and the control Order, and so was the U. P. State Legislature in regard to the law enacted by it. It was pointed out that none of the provisions overlap, the Central Act and Order being silent with regard to some of the provisions enacted by State Act, and the State Act being silent with regard to some of the provisions enacted by the Central Act and Order. It was therefore held that there was no repugnancy at all between the two.

5. Applying the principle of the above decision, I am strictly concerned in the present case only with the question as to whether Section 18 of the Kerala Act Is repugnant to, or inconsistent with, the provisions of the Central Act. As noticed, there is no provision in the Central Act corresponding to Section 18 of the Kerala Act; and it is difficult to see any case of repugnancy or inconsistency arising between the two. Section 27 (3) of the Central Act, seems to envisage discharge or dismissal from the service of a motor transport worker but the Act does not provide for the dismissal or discharge. Section 18 of the Kerala Act which provides for the dismissal of an employee cannot be regarded as inconsistent with or repugnant to the provisions of the Central Act.

6. Besides, the definition of a Motor Transport Worker under Section 2 (h) of the Central Act excludes inter alia 'any such person to whom the provisions of any law for the time being in force regulating the conditions of service of persons employed in Shops or Commercial Establishments apply' This, I should think, is sufficient Indication that, far from there being any conflict or inconsistency between the two Acts, they had to be read in harmony with each other. But, it is contended that under Section 3 (1) (b) and (f) of the Kerala Act, motor transport workers were exempted from the operation of the Kerala Act, and were brought under its purview only by a notification issued by the State Government under the provisions of Section 4. Section 3 (1) (b) and (f) and Section 4 of the Kerala Act read thus:

'3. Exemptions -- (1) nothing contained in this Act shall apply to-

(a) x x x x

(b) persons whose work mainly involvestraveling, and persons employed as canvassersand caretakers and whose names do not Appear in the muster rolls;

x x x

(f) Establishments which, not being factories within the meaning of the Factories Act 1946 (Central Act 63 of 1948), are in respect of matters dealt with in this Act, governed by a separate law for the time being in force in the State of Kerala.'

XXX

'4. Power of Government to apply Act to exempted persons or establishments-- Notwithstanding anything contained in Section 3, the Government may, by notification in the Gazette, apply all or any of the provisions of this Act to any class of persons or establishments mentioned in that section other than those mentioned in Clauses (e) and (f) of Sub-section (1) and modify or cancel any such notification.'

By a notification dated 18th October 1963 issued under Section 4 of the Act, the Government directed that the provisions of the Act (with certain immaterial omissions) apply to persons whose work mainly involved travelling. From the date of this notification, there was no controversy that motor transport workers are also governed by the Kerala Act. But what was contended by the counsel for the petitioner was, that by the time the Kerala Act was so extended to the motor transport workers, the field had already been occupied by the Central Act 27 of 1961, whose provisions were repugnant to the State Act, and the State Act as subsequently extended must be held void for repugnancy. I have already held against repugnancy as between the two Acts and none could therefore arise on the extension of the Kerala Act to motor transport workers. On its extension to them the exemption in Section 2 (h) of the Central Act would operate and save any conflict.

7. It was also pointed out by the counsel for the respondents that by reason of Section 1 (4) of the Central Act, it applies only to an undertaking employing five or more motor-transport workers and there is nothing to show that the petitioner's undertaking satisfied the requirement.

8. I cannot accede to the petitioner's argument that the Central Act dealing with the particular subject has repealed the Kerala Act dealing with a general subject. On the provisions of the statutes, I cannot hold that a repeal was either express or implicit. The indications are that the statutes admitted of concurrent operation and were 'susceptible of simultaneous obedience.'

9. I have discussed the question of repugnancy on the footing that both the statutes are covered by the entries in the concurrent lists. It was on this basis that the matter was argued before me. The legislative power for d State Act could perhaps also be traced to entry 26 of List II, in view of the decision of the Supreme Court in Manohar Lal v. The State, AIR 1951 SC 315. If so, a further refinement arises as to the question of repugnancy. There is a conflict of Judicial opinion as to whetherany repugnancy can arise at all as between a State law made under an entry in the State List and a law made by Parliament in pursuance ofentries in the Union List and the concurrent List. One view is that repugnancy falls to be considered only where both the laws are with respect to matters enumerated in the concurrent list. There is a view contra. The conflict is noticed and left open in AIR 1956 SC 676 at p. 698, aS arguments before me proceeded on the footing that both the Acts are covered by entries in the concurrent list, I need not deal with the case on any alternative footing. Even so, I might observe that I see neither conflict nor repugnancy between the two statutes.

10. The petitioner's counsel raised a contention that the 1st respondent was employed in Krishnankottal within the limits of the Poyya Panchayat to which the Kerala Act had not been extended under Section 1 (5). As pointed out by the counsel for the respondents, thepoint was never raised before the 2nd respondent. 1st respondent in his counter-affidavit has denied that he was working in Krishnankottai and has asserted that he was attached to the Chalakudi Office. The attendance registers of the Chalakudi office of the petitioner produced before the 2nd respondent as Exts. R-5 and R-6 seem to support the 1st respondent's contention. I cannot go into this disputed question of fact in these proceedings.

11. The petitioner's counsel feebly argued that Section 18 (2) of the Kerala Act was unconstitutional on the ground that the decision of the appellate authority under the section is made final and no further provision for appeal or review is made. It is too late in the day to contend that the section is unconstitutional merely because of the absence of any further provision for appeal or review from the decision of the appellate authority.

12. An attempt was made by the petitioner's counsel to attack the finding of the appellate authority on the merits. Section 18(2) confers appellate power on the 2nd respondent. The facts and circumstances of the case, have been considered and adverted to, and I can see no ground for interference with the decision thus arrived at.

13. I dismiss the O. P.; but in the circum stances without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //