The fixation of a minimum qualifying service of six months for earning gratuity, even in case of resignation, without taking into consideration the financial capacity of the employer, is discriminatory and violative of Article 14 of the Constitution.

( 1 ) (JUDGMENT of the Bench was delivered by ) 1. The respondent No. 3 who was working under the petitioner the Suryapet Co-operative Marketing society Ltd. , as a Store. keeper submitted his resignation on 21-11-1969 for some domestic reasons, and handed over charge of his post on 9-1-1970. As the chargelist prepared by him was improper, he prepared and submitted another charge list on 26-3-1970 On a security of the charge-list it was found that the respondent No 3 had not acrounted ior stocks of the value of Rs. 533-32 Ps. At the instance of respondent No. 3, the 2nd respondent the Assistant Inspector of Labour, addressed two letters to the petitioner-Society asking it to pay the provident fund, gratuity and other benefits to respondent No 3. The petitioner sent a reply to the effect that, after settlement of the accounts if anything was due in law, it will be paid to respondent No 3.

( 2 ) IN the meanwhile, respondent No. 3 through respondent No. 2 filed O. P. No. 17 of 1070 in the court of the Munsif Magistrate, suryapet, under section 43 of the Andhra Pradesh Shops and Establishments act, 1966 (hereinafter called "the Act") claiming (1) service gratuity under Section 40 (1); (2) two months salary for non-payment of gratuity under Section 40 (2) ; (3) Forty five day s leave salary under section 24 (5) ; and (4) provident fund and bonus for the years 1966-67 and 1967-68.

( 3 ) ACCORDING to the petitioner, Section 40 (1) of the Act imposing an obligation on an employer to pay gratuity to an employee after putting in service of six months, both in cases of retirement as well as resignation, is an unreasonable restriction on the rights of the members of the society to carry on trade and business, which are guaranteed to acitizen under Art. 19 (1) (g) of the Constitution of India. A factory employing several persons, need not pay gratuity to its workers unless a scheme is framed by an industrial adjudication, whereas a petty businessman has to pay gratuity without the benefit of such a scheme being framed by the industrial adjudication, taking into consideration the capacity of the employer to pay and therefore, section 40 (1) of the act violates Art. 14 of the Constitution of India and is hence void. The provident fund and bonus do not come within the purview of the definition of "wages" and hence an enquiry relating thereto falls outside the scope of enquiry which a Munsif Magistrate is authorised to hold under Section 43 of the Act.

( 4 ) WITH these averments and for the reasons stated above the petitioner challenged the legality and validity of the proceedings before the Munsif Magistrate, Suryapet and by this writ petition, the petitioner seeks a direction from this court restraining the Munsif Magistrate from proceeding further with the enquiry before him.

( 5 ) RESPONDENTS 2 and 3 filed counters opposing the writ petition. According to them, the Act is a beneficial or a remedial legislation which is intended for the benefit of the employees. Graturty is terminal benefit and a period of six months has been fixed as the qualifying service for entitlement to it Bonus is claimed under the provisions of the Payment of Bonus Act and as such, it is covered by Section 2 (23) (e) of the Act Section 40 neither violates Art. 19 (1) (g) nor Article 14 of the Constitution of India, the Munsif-Magistrate, under Section 43 of the Act, is the judicial authority appointed by the Government to hear and decide all claims arising out of dedactions from the Wages. , or delay in the payment of wages, or gratuity payable under this Act to employees, within a specified area in order 1o appreciate the contentions raised by the petitioner it is necessary to read the relevant portion of the definition of "wages". Sec. 2 (23) of the Act defines the term "wages" thus :-"wages" means every remuneration, whether by way of salary allowances, or otherwise expressed in terms of money or capable of being so expressed which would if the ter