The Devaswom satisfied the definition of a 'commercial establishment' for the purposes of the Kerala Shops and Commercial Establishments Act.

1. The petitioner is the Superintendent of Koodalmanickom Devaswom, Irinjalakuda. The 1st respondent was a pattamali under the Devaswom, who was dismissed from service by the petitioner, for certain irregularities in connection with the discharge of his duties as pattamali. The 1st respondent preferred an appeal under S.18(2) of the Kerala Shops and Commercial Establishments Act 18 of 1960, (hereinafter referred to as the Shops' Act) to the 2nd respondent, the appellate authority. The appeal was allowed and the petitioner was directed within a specified time to reinstate the 1st respondent with continuity of service and on payment of Rs. 1,000/- in lieu of backwages for the period for which he was kept out of employment; or, in the alternative to pay the 1st respondent, within the specified period, a sum of Rs. 3,000/ as compensation in lieu of reinstatement, backwages and all other claims. Ex. P-3 is a copy of the communication from the petitioner of gist of the order passed on appeal, and Ex. R-3 filed with the counter affidavit of the 1st respondent is a copy of the order itself. This writ petition is 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 the 2nd respondent and that in the absence of the Kaimal as a party the appeal to the 2nd respondent itself was not properly constituted; and

(3) that the Koodalmanickom Devaswom 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 S.3 for exemption from the operation of its provisions. There is nothing in clauses (a) to (f) of S.3(1) of the Act, to show that the Koodalmanickom Devaswom is exempt from the provisions of the Shops' Act. Under Clause.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 Others, Madras (1960 II L. L. J. 357) and Madras State Electricity Board v. Commissioner of Labour and Others (19611 L. L. J. 297). I am unable to hold that the Koodalmanickom Devaswom being governed by the special statute is exempt from the purview of the Shops' Act.

4. In appreciating the contention that the appeal to the 2nd respondent was not properly constituted, as the Kaimal was not a party thereto, and that the order passed on appeal is therefore void, it must be remembered that the charge against the 1st respondent was framed, by the petitioner. Ex. P-5 filed with the reply affidavit of the petitioner, is a copy of the show cause notice containing the charge. Ex. P-6 is a copy of the reply to the same, and was submitted by the 1st respondent to the petitioner. In the reply affidavit, the petitioner alleged that in fact there was an order of dismissal dated 7-11-1963 passed by the Kaimal, (Ex. P-7). The 1st respondent has alleged in Para.5 of the additional counter affidavit that the only order of dismissal communicated to him was the one dated 21-11-1963 and that the same would show that the decision to dismiss was taken by the petitioner. A copy of the order dated 21-11-1963 has been produced along with the additional counter-affidavit, as Ext. R-4. It is also stated in the additional counter-affidavit that the 1st respondent was aware of Ex. P-7 for the first time only from the reply affidavit of