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Koodalmanickom Devaswom (by Superintendent) Vs. Kunhan Kartha (K.P.) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1967)IILLJ639Ker
AppellantKoodalmanickom Devaswom (by Superintendent)
RespondentKunhan Kartha (K.P.) and anr.
Cases ReferredIn Catholic Centre Staff Union v. Archbishop of Madras and Anr.
Excerpt:
.....1903 issued under section 4 of the..........discharge of his duties as pattamali. respondent 1 preferred an appeal under section 18 (2) of the kerala shops and commercial establishments act 18 of 1960 (hereinafter referred to as the shops act) to respondent 2, the appellate authority. the appeal was allowed and the petitioner was directed within a specified time to reinstate respondent 1 with continuity of service and on payment of rs. 1,000 in lieu of back-wages for the period for which he was kept out of employment; or, in the alternative to pay respondent 1, within the specified period, a sum of rs. 3,000 as compensation in lieu of reinstatement, back-wages and all other claims. exhibit p. 3 is a copy of the communication from the petitioner of gist of the order passed on appeal, and ex. p. 3 filed with the counter-affidavit of.....
Judgment:

V.P. Gopalan Nambiyar, J.

1. The petitioner is the superintendent of Koodalmanickom devaswom, Irinjalakuda Respondent 1 was a pattamali under the devaswom, who was dismissed from service by the petitioner, for certain irregularities in connexion with the discharge of his duties as pattamali. Respondent 1 preferred an appeal under Section 18 (2) of the Kerala Shops and Commercial Establishments Act 18 of 1960 (hereinafter referred to as the Shops Act) to respondent 2, the appellate authority. The appeal was allowed and the petitioner was directed within a specified time to reinstate respondent 1 with continuity of service and on payment of Rs. 1,000 in lieu of back-wages for the period for which he was kept out of employment; or, in the alternative to pay respondent 1, within the specified period, a sum of Rs. 3,000 as compensation in lieu of reinstatement, back-wages and all other claims. Exhibit P. 3 is a copy of the communication from the petitioner of gist of the order passed on appeal, and Ex. P. 3 filed with the counter-affidavit of respondent 1 is a copy of the order itself. This writ petition IB mainly to quash Ex. P. 3.

2. The main contentions urged were:

(1) that the Koodalmanickom devaswom was governed by the Koodalmanickom Devaswom Proclamation of 1094 M. E. issued by His Highness the Maharaja of Cochin, and the Proclamation of 1094 issued by His Highness the Maharaja of Travancore and its employees were outside the purview of the Shops Act;

(2) that the kaimal alone could represent the devaswom even before respondent 2 and that in the absence of the kaimal as a party the appeal to respondent 2 Itself was not properly constituted; and

(3) that the Koodalmanickom dewaswom was neither a 'shop' nor a 'commercial establishment' within the meaning of those terms in the Shops Act, 1960.

3. The Kerala Shops and Commercial Establishments Act provides by Section 3 for exemption from the operation of its provisions. There is nothing in Clause (a) to (f) of Section 3 (1) of the Act, to show that the Koodalmanickom devaswom is exempt from the provisions of the Shops Act. Under 01. 3 (1)(f):

Establishments which, not being factories within the meaning of the Factories Act, 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.

are exempt; but there Is neither identity nor even substantial correspondence, between the fields covered by the Proclamations and the Shops Act. Vide Madras State Electricity Board v. Commissioner of Labour and Ors. (1960-II L.L.J. 357) and Madras State Electricity Board v. Commissioner of Labour and Ors. (1961-I L.L.J. 297) lam unable to hold that the Koodalmanickom devaswom belt g governed by special statute is exempt from the purview of the Shops Act.

4. In appreciating the contention that the appeal to respondent 2 was not properly constituted, as the kalmal was not a party thereto, and that the order passed on appeal is therefore void, it must be remembered that the charge against respondent 1 was framed by the petitioner. Exhibit P. 5, filed with the reply-affidavit of the petitioner, is a copy of the show-cause notice containing the charge. Exhibit P. 6 is a copy of the reply to the same, and was submitted by respondent 1 to the petitioner. In the reply-affidavit, the petitioner alleged that In fact there was an order of dismissal dated 7 November 1963 passed by the kaimal (Ex. P. 7). Respondent 1 has alleged in Para. 5 of the additional counter-affidavit that the only order of dismissal communicated to him was the one dated 21 November 1963 and that the same would show that the decision to dismiss was taken by the petitioner. A copy of the order dated 21 November 1963 has been produced along with the additional counter-affidavit, as Ex. P. 4. It is also stated in the additional counter-affidavit that respondent 1 was aware of Ex. P. 7 for the first time only from the reply-affidavit of the petitioner. From these facts, It appears to me that respondent 1's services were terminated by (he petitioner, and therefore, the appeal against the petitioner was competent under Section 18 (2) of the Shops Act. It la also seen from the flies made available to me that at the stage of the appeal, the parties were taking up conflicting positions. In ground 2 of the grounds of appeal preferred by respondent 1, It we a urged that the petitioner who leaned the order of dismissal had no authority to do so and la not the appointing authority. In the additional statement filed by the present petitioner before respondent 2, dated 2 August 1964, it was stated in Para. 2 that the order of dismissal passed by the present petitioner was 'with full authority' and was not liable to be questioned. The submission was no doubt made without prejudice to the objection raised as to the jurisdiction of respondent 1 on the ground that the Koodalmanlckom devtiswom was neither an 'establishment' nor a 'commercial establishment.' If the objection of conjoiners had been persisted in before respondent 2 it could, if necessary, have been cured by imp leading the kamala. In the circumstances, I cannot entertain or accept the objection that In the absence of the kaimal the appeal to respondent 2 was not properly constituted.

5. There remains the last and the most Important objection raised by the petitioner that the Koodalnuanickom devaswom was neither an 'establishment' nor a 'commercial establishment.' as defined In the Kerala Shops Act. There was no contention before me that the devaswom would fall within the definition of a 'shop' under the Act. The only contention was that it undoubtedly fell within the definition of 'commercial establishment.' It would be convenient to extract the definitions of the term 'establishment' and 'commercial establiahment,' and given in Sections 2 (8) and 2 (4) of the Act;

2. (4) 'Commercial establishment' means a commercial or industrial or training or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating-house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification In the gazette, declare to be a commercial establishment for the purpose of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 (Central Act 63 of 1948), apply.

2. (8) ' Establishment' means a shop or A commercial establishment.

It was pointed out at the hearing that the words Italicized In the definition of the term 'commercial establishment' are peculiar to the Kerala Act, and nothing corresponding to them Is to be found either In the Madras Act, or In the Travanoore-Cochin Act on the subject. It seems to me also that with the above statutory definition, the only question is whether the devaswom fills the bill for the limited purpose of the Act and not whether It can be said to a commercial establishment for all purposes whatsoever. On the terms of the statute taken along with the facts as found by the appellate authority, the conclusion seems to be Inescapable that the devaswom satisfies the definition of a 'commercial establishment' for the purposes of the Shops Act. In Para. 8 of respondent 1's objection filed before respondent 2, the plea was specifically raised that;

The devaswom is having a temple establishment apart from the general establishment; in which the appellant is employed. The general establishment is a purely administrative service, In which the persons employed are mainly engaged In office work.

A copy of this objection is Ex. P. 2. Adverting to the plea thus specifically raised, in the light of the evidence adduced, respondent 2 found that the devaswom bad seven Sub-offices and a temporary establishment and that that part of the Koodalmardckom devaswom which is engaged in the collection of rent of its properties and maintenance of records of these collections, is an 'establishment' as given in the definition of' commercial establishment' in the Kerala Shops Act, 1960. I find no scope for interference with the said finding.

6. My attention was called to a number of decisions rendered under the provisions of the Industrial Disputes Act, with reference to the definition of the term 'Industry' as given in that Act. Decisions such as Hospital Mazdoor Sabha case 1960-I L.L.J. 251; Nagpur Corporation case 1960-I L.L.J. 623; Palace Board case 1959 K.L.T, 1152; Devaswom Board's Maramath Department case 1963 K.L.T. 218 and Delhi University case 1963-II L.L.J. 335 were profusely cited. Particular stress was also laid on the decision of the Orissa High Court, In the Jagannath Temple case 1965-I L.L.J. 501, I have given these my careful attention. All these were decisions rendered under he Industrial Disputes Act. As pointed out In Catholic Centre Staff Union v. Archbishop of Madras and Anr. 1962-II L.L.J. 115 It would toe Inappropriate to import into the Shops and Commercial Establishments Act the definition of the term 'Industry' as given In the Industrial Disputes Act. I find no warrant for such a course. As noticed, the definition of the term 'commercial establishment' under the Kerala Shops and Commercial Establishments Act is a special one, and is wider than what is contained in the Madras or Travanoore-Cochin counterparts. For these reasons, I refrain from entering Into a more detailed examination of the decisions under the Industrial Disputes Act to which my attention was drawn. I hold that the temporary establishment of the Koodalmanickom devaswom In which respondent 1 was employed satisfies the definition of the term 'commercial establishment' for the purposes of the Kerala Shops and Commercial Establishments Act.

7. By Civil Miscellaneous Petition No. 9040 of 1966, the petitioner's counsel sought to urge certain additional grounds. One was that the Koodalmanlckom devaswom is governed by a special statute, and therefore, the Shops and Commercial Establishments Act Is not applicable to the same. Second was that the Shops Act is inapplicable to respondent 1ts case by reason of the exemption In Section 3 (1)(6) of the Act. Section 3 (1)(b) of the Act reads as follows:

3, Exemptions.-(1) Nothing contained in this Act shall apply to-(b) persons whose work mainly Involves traveling, and persons employed as canvassers and caretakers and whose names do not appear In the muster-rolls.

Counsel for respondent 1 raised the objection that the entertainment of this latter ground of objection would involve investigation of facts, which ought not to be permitted at this stage. In the additional counter-affidavit of respondent 1, It is stated that no evidence was adduced before respondent 2 to show that the work of respondent 1 itself involved travelling, it Is further averred that at the time of issuing the chargesheet, respondent a functions were purely clerical. It was pointed out that by a notification dated 18 October 1933 issued under Section 4 of the Act, the provisions of Section 18 had been extended even to persons covered by Section 3(1)(b), I am satisfied that the litter ground of objections sought to be raised by Civil Miscellaneous Petition No. 9040 of 1966 cannot be entertained as it involves investigation of facts, I am further satisfied mat even If It were to be entertained, there is no substance in the same, in view of the Government notification dated 18 October 1903 issued under Section 4 of the Act.

8. Some point was made that the order of respondent 2 had not been communicated to the petitioner, and that whit was communicated was only what has boon filed as Ex P. 3. This seems to be in conformity with the Rule 3 (2) of the rules framed undo the Kerala Shops and Commercial Establishments Act under which only the result of the appeal is to be commutated and copies of the order on appeal are to be furnished on payment of the required charges.

9. There is a prayer to quash Ex. P. 4 order also. Exhibit P. 4 is only an intimation of the finding of the appellate authority by Its order, dated 22 May 1964, on the question of jurisdiction, which the petitioner prayed to dispose of preliminarily. Tae appellate authority found that prima facie there is enough to attract the jurisdiction of the authority under Section 18 of the Act and that It cannot be said, at the preliminary stage, before entering Into evidence as to whether the provisions of the Act will apply to the case or not. A copy of the preliminary finding of the appellate authority was made available to me with the files. There is nothing that calls for Interference with Ex. P. 4.

10. The appellate authority (respondent 2) allowed the appeal as respondent 1 was dismissed without any enquiry. Nothing was said before me to canvass the merits of the said finding.

11. I dismiss this writ petition; but make no order as to costs.


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