The court clarified the scope of the definition of 'commercial establishment' under the Kerala Shops and Commercial Establishments Act, 1960, and interpreted the applicability of the Payment of Wages Act, 1936, to the claim for arrears of salary.

1. Respondents 1 and 2 are the appellants in this Civil Miscellaneous Appeal. Plaintiff was appointed cashier in the Sree Narayana Medical Mission Hospital conducted by the defendants. 1st defendant is the President of the Mission and the 2nd defendant is its Administrative Officer. Plaintiff was suspended from service by the 2nd defendant. Though suspension continues, no enquiry has been conducted against the plaintiff and hence this suit for a declaration that he is still an employee of the defendant Mission and also for recovery of salary is filed. The trial court found that the plaintiff's service has not been terminated and he is only under suspension, and so finding held that the plaintiff is entitled to have a declaration that he is still an employee of the defendant-Mission. Regarding the prayer for recovery of arrears of salary the trial court took the view of that it has no jurisdiction to decree the claim which, in its opinion, is exclusively conferred on Labour Court in view of the Shops and Commercial Establishments Act read with the Payment of Wages Act, 1936 (Central). On appeal there was no challenge from the defendants regarding the declaration granted to the plaintiff that he continues to be an employee of the Mission. The lower appellate court found that the Payment of Wages Act and Shops and Commercial Establishments Act will not apply to this case and so set aside the finding of the lower court and remanded the matter for considering the other issues involved in the case. This C. M. Appeal is against that order of remand.

2. The learned counsel for the appellants contended that though this Missions is run on charitable lines, in view of the notification issued by the Government in 1963 under which the Payments of Wages Act is made applicable to shops and establishments governed by the Shops and Commercial Establishments Act, 1960, this claim for arrears of salary is not maintainable. The said Notification reads thus:

"In exercise of the powers conferred by sub-section (1) of S.17 of the Kerala Shops and Commercial Establishments Act. 1960 (Act 34 of 1970), the Government of Kerala hereby direct that the Payment of Wages Act, 1936 (Central Act 4 of 1936) and the rules made thereunder shall apply to all the employees in all the shops and establishments to which the Kerala Shops and Commercial Establishments Act, 1960, applies."

To see whether this Notification will apply one has to read and understand the scope of the definition of "commercial establishment" in S.2 (4) of the Kerala Shops and Commercial Establishments Act, 1960, which is in the following terms:

"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 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 purposes 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;"

This definition, no doubt, takes in an establishment in which persons employed are mainly engaged in office work. If there is no other notification exempting the establishments similar to that of the Mission in this case, in view of the decisions of this court reported in Superintendent v. Kunhan Kartha 1967 K. L. T. 941 and also Karunakaran Nair v. Authority under Payment of Wages Act 1971 K. L. T. 661 the defendants' establishment will be roped in by the definition, and by the notification under S.17 of the Act the provisions of the Payment of Wages Act will bar a suit for recovery of arrears of salary. To this, no doubt, the respondent's counsel referred me to the decision reported in Dr. Devendr