Maintainability of proceedings under Shops and Establishment Act.

Koshal, J.-This petition under Article 226 of the Constitution of India arises in the following circumstances. The Safire Theatre is an establishment exhibiting cinema films in Madras City. It had a maintenance branch and was running a refreshment bar till 9th October, 1972, when it decided to abolish both and to have their functions performed through contractors. On the 10th October, 1972, it served notices on those of its employees who were running the maintenance branch and the refreshment bar to the effect that their services were being terminated by retrenchment. The said employees made efforts to raise an industrial dispute and have it referred to the Labour Court by the Government. Before the Government made a reference, however, nine of them, who are respondents 2 to 10 before me, filed appeals to the Additional Commissioner for Workmen’s Compensation, Madras. (hereinafter referred to as the Commissioner) under sub-section (2) of section 41 of the Madras Shops and Establishments Act, 1947 (hereinafter referred to as the Madras Act) claiming that the termination of their services was unreasonable. The Commissioner accepted all the appeals holding the termination of the services of respondents 2 to 10 as unreasonable on the ground that there was no real closure of the maintenance branch and the refreshment bar, as they were admittedly being run through contractors.

2. The order of the Commissioner is dated 14th May, 1975 which the management of Safire Theatre seek to have quashed by a writ of certiorari.

3. Learned counsel for the petitioners, has raised the following four contentions in support of their case:

(i) Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Central Act) confers on questions regarding retrenchment the status of industrial disputes, even though such questions arise between an individual workman and the management. The only remedy therefore open to respondents 2 to 10 was through a reference of the dispute to one of the authorities created in that behalf by the Central Act. Recourse could not be had by them to the provisions of section 41 of the Madras Act.

(ii) Even if both the remedies, namely, one under the Central Act and the other under the Madras Act were open to respondents 2 to 10 they could not have recourse to both of them but had to elect which of them they would avail of and this they did by making an effort to have a reference of the dispute made by the Government. Having done so they were debarred from claiming the other remedy, that is, one under section 41 of the Madras Act.

(iii) The maintenance branch and the refreshment bar having actually been closed down and their personnel having been paid compensation as provided in that behalf by the Central Act, retrenchment could not be challenged on any ground whatever before any forum.

(iv) Section 41 of the Madras Act was repugnant to the provisions contained in section 2-A of the Central Act and was therefore rendered ineffective by the rule envisaged in Article 254 of the Constitution of India.

4. All these four propositions have been canvassed before me at length by learned counsel for the parties and after hearing them I am of the opinion that it is a fit case which should be referred for decision to a larger Bench, preferably a Full Bench, in view of the situation that quite a few complicated questions of law arise for determination and are likely to arise in a very large number of cases between labour and its employers. Accordingly, I direct that the records be laid before my lord the Chief Justice with a request that such a Bench may be constituted. Before the case is listed for hearing notice shall issue to the Advocate-General, Madras.

P.R. Govindasamy Iyer and P. Vedavalli, for Petitioner.

C. Chinnaswami, for Government Pleader and N.G.R. Prasad for M/s. Row and Reddy, for Respondents Nos. 2 to 8 and 10.

The Order of the Full Bench was delivered by

Kailasam, CJ.-This petition is filed by the Management of the

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