A. P. Steel Wool Industries Co-operative Society Limited vs Labour Court, Hyd

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1986 Supreme(AP) 543

Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY, K.BHASKARAN, P.R.RAO, S.S.M.QUADRI, Y.V.ANJANEYULU
A.P.Steel Wool Industries Co-operative Society Limited - Appellant
Versus
Labour Court, Hyd - Respondent
W.P. Nos. 783/77 etc.
Decided On : 12-26-86
Advocates Appeared :
Mr. V. Jagannadha Rao, K. Rangaiah,Mr. M. Shiva Shankar

Headnote:A.P. SHOPS AND ESTABLISHMENTS ACT, Secs.2 (10) and (21), 40 and 41 and Industrial Disputes Act - Secs. 2 (k), 2-A, 10 (1) and 15Dispute arising out of termination of service of an employee of Establishment cause not espoused by a Union of employees or a member of workmen in the absence of a Union - Government is competent to refer individual dispute for decision by Labour Court - No repugnancy between State Act and Central Act Constitution of India Arts. 246 and 254 Entries 22, 23 and 24 of Concurrent List - Doctrines of pith and substance and incidental encroachment - Applicability.
       Held : Sections 40 and 41 of the Shops Act do riot render Sec.2-A of the Industrial Disputes Act inoperative insofar as it relates to the State of Andhra Pradesh in respect of matters covered by those Sections of the Shops Act; and to a dispute arising out of the termination of the Service of a shop employee, the provisions of that Section could be invoked even when his cause is not espoused by a Union or a number of workmen, in the absence of a Union. The object behind the provisions made in Sec. 40 and 41 of the Shops Act was not to deprive the shop employee of a right of remedy available to him, but only to provide en additional forum for seeking speedy solution to the problems arising out of the termination of his service The option is left with the shop employee who is aggrieved by the termination of his service. He may at his choice and convenience, either pursue the remedy invoking Sec. 2-A of the Industrial Disputes Act, or approach the appellate authority (in case of necessity, the Labour Court also in Second appeal).
       The insertion of Sec. 2-A of the Industrial Disputes Act by Amending Act XXXV of 1965 with effect from 1-12-1965 enlarged the definition of industrial dispute as defined in Sec. 2 (k) of the Industrial Disputes Act so as to bring within its fold the matters relating to the discharge, dismissal, retrenchment or termination of the service of an individual workman also with the result that the Government could refer such industrial dispute for adjudication under Sec. 10(1) of the Industrial Disputes Act even when his case is not supported by a Union or other workmen.
       There is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governer to reserve it for the assent of the President. There might be a genuine doubt about the applicability of any of the provisions of the Constitution which required the assent of the President to be given in it in order that it might be effective as an Act. If the Governor in exercise of his discretion decided to reserve the Bill in such a situation for consideration of the President to avoid any future complication, that act could not be put forward as a proof of the existence of repugnancy between the Parliamentary enactment and the Bill which had been reserved for the assent of the President.
        Pith and substance and incidental encroachment are the doctrines evolved by Courts to ensure that federal machinery could function without seriour friction. In cases of conflict between the entries in Lists-I and" of the Constitution, the question would be one of competency, to be decided with reference to the Pith and substance of the matter, not one of repugnancy. In the case of concurrent List, there could be Legislation on the same subject by both the Central Legislation and the State Legislation, and there might be some overlapping or incidental encroachment by one over the other; but so long as that is within the permissible limits, one might not become repugnant to the other; and they would operate within the spheres occupied by each of them as determined by the pith and substance theory.
       1977 (1) A.P.L.J. 160 (F.B) Partly Overruled.
       1977 (2) A. P.L.J. 78 (F.B) approved.
       Reference Answered Accordingly.

K. BHASKARAN, J.

( 1 ) WHAT in effect and substance, the order of reference made by the Division Bench on 20-12-1978 demands is an examination, by this Full Bench of five judges, of the correctness of the view expressed concurrently by two Full Benches of this Court (reported in Visakhapatnam District Marketing Co-operative Society Ltd. v. Govt. of Andhra Pradesh, (1977) 1 APLJ (HC) 160 : (1977 Lab IC 959) and Sri Brindavan Hotel v. Conciliation Officer, (1977) 2 Aplj (HC) 78 : (1977 Lab IC 1572), (hereinafter referred to respectively as the First Full Bench and the Second Full Bench) on which considerable reliance is placed by the Writ Petitioners, that the provisions of the Andhra Pradesh Shops and Establishments (Act XV) of 1966, (the Central Act XIV) of 1947 (the I. D. Act) would have no application, to a dispute, arising out of the terminations of the service of an employee in an establishment/shop, answering the description of those terms, as defined in sub-ss. (10) and (21) of S. 2 of the Shops Act not sponsored by a Union or a group of workmen.

( 2 ) THE Writ Petitions are by the managements of certain establishment/shops; and the contesting respondents are the employees (as defined in S. 2 (8) of the Shops Act) of those establishments/shops whose services had been terminated by the employers (as defined in S. 2 (9) of the Shops Act ). The awards granting reliefs to the said employees, passed by the Labour Court, on reference to it of the disputes, arising out of the termination of their services, by the Government under S. 10 (1) (c) of the I. D. Act are under challenge in these writ petitions. The order made by the Division Bench on 20-12-1978, referring the question of law involved to a larger Bench (of five judges) is in W. P. Nos. 783, 784 and 1639 of 1977 and the other two writ petitions have been, in course of time, ordered to be posted along with the above mentioned cases, as it was considered that the same question of law arose therein also.

( 3 ) THE First Full Bench in Para 15 (at pages 169 and 170 of APLJ) : (Para 7, at p. 964 of 1977 Lab IC) recorded the opinion :"the disputes of an individual workman in regard to termination of services, squarely fall within the filed covered by Ss. 40 and 41 of the Shops Act and we have, therefore, no doubt that there is repugnancy to that extent between the Shops Act and the I. D. Act. "that Full Bench, however, did not express any opinion on the legal point that would arise if the individual dispute of a workman in an establishment/shop was supported either by the Union to which he belonged or, in the absence of a Union, by a Number of workmen, and such a matter was sought to be referred for adjudication under S. 10 (1) of the Industrial Disputes Act. The Second Full Bench, after having referred to the reasoning of the First Full Bench, in para 13 (at page 86 of APLJ) : (para 16, at p. 1578 of 1977 Lab IC) stated as follows :"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?" (Emphasis supplied) The question of law, on which the First Full Bench did not express any view, was answered by the Second Full Bench, after a fairly elaborate discussion, in the con

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