Interpretation of the term 'establishment' under the Shops Act and the applicability of the Act to a Hindu Religious Institution.

1. The petitioner in this case is a Hindu Religious Institution by name "Thirumullapulli Devaswom" represented, in these proceedings, by its Manager. The first respondent is the Commissioner for Workmen's Compensation and Shop Appellate Authority, Kozhikode and the second respondent is a person, who was an employee under the petitioner-Devaswom.

2. The petitioner initiated disciplinary proceedings against the second respondent and dismissed him from service on 2 51973. The second respondent filed an appeal challenging that order before the competent authority in accordance with the provisions of S.49 (2) of the Madras Hindu Religious and Charitable Endowments Act, 19 of 1951, (briefly the Act). The Appeal was dismissed. The second respondent challenged that order by O. P. No. 316 of 1975. This Court set aside the orders of the Appellate Authority and remanded the matter for fresh consideration. The Appellate Authority, in its turn, allowed the appeal and remanded the matter to the petitioner for fresh consideration. Petitioner framed afresh Ext. P3 charge against R2. According to the petitioner, there was an enquiry. Thereafter, the petitioner passed Ext. P7 order dismissing the second respondent from service. The second respondent did not choose to challenge Ext. P7 order under S.49 (2) of the Act, as he did on the former occasion. On the second occasion he pursued a different remedy viz., an appeal under S.18 of the Kerala Shops and Commercial Establishments Act, 1960 (briefly referred to as the Shops Act). Ext. P9 is the copy of the appeal memorandum filed by the second respondent before the first respondent-Tribunal, and, Ext. P10 is the objection filed by the petitioner-Devaswom. The first respondent passed Ext. P11 order directing the petitioner to reinstate the second respondent, or, in the alternative, to pay an amount of Rs. 5,980/-, in addition to back wages. It is the correctness of Ext. P11 that is challenged in this Original Petition.

3. Ext. P11 is challenged by the petitioner essentially on the ground that Ext. P9 appeal was incompetent, and that the first respondent has no jurisdiction to adjudicate the claim made by the second respondent. The lack of jurisdiction relied on by the petitioner is unfounded upon two propositions, viz., (a) that the petitioner Devaswom is not an establishment for the purpose of Shops Act, and (b) that even if the Devaswom is an establishment it is entitled to claim exemption provided under S.3 (I) (f) of the Shops Act.

4. Ext. P11 shows, that the petitioner, who was the respondent in that appeal, specifically relied on the aforesaid contentions regarding the absence of jurisdiction on the part of the first respondent to adjudicate the dispute. The first respondent held, that the Devaswom is an establishment, relying on the decision reported in Superintendent v. Kunhan Kartha (1967 KLT. 941). It was conceded before me that, that decision was challenged in a writ appeal, and, the decision was not confirmed.

5. Consequently, the question whether the concerned Devaswom is an establishment for the purpose of the Shops Act has to be considered. The preamble to the Shops Act shows, that the statute was enacted to consolidate and amend the law relating to the regulation of conditions of work and employment in shops and commercial establishments in the State of Kerala. According to S.2 (8) "establishment" means a shop or a commercial establishment. The expression "shop" is defined in S.2 (15), and it is conceded by the second respondent that the Devaswom cannot be considered as a shop. The expression "commercial establishment" is defined in S.2 (4) as follows:

"2 (4) 'commercial establishment' means a commercial or industrial or trading 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