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High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. P. S. KAILASAM
Safire Theatre - Appellant
Versus
Commissioner For Workmens Compensation and Others - Respondent
Case No : W.P. No. 1141 of 1976
Decided On : 14 December 1976
SHOPS AND ESTABLISHMENTS ACT - S.41 - INDUSTRIAL DISPUTES ACT - S.2A - REMEDY UNDER S.41 OF THE MADRAS SHOPS AND ESTABLISHMENTS ACT, 1947 IS NOT BARRED TO A WORKER, THOUGH HE MIGHT ALSO HAVE A REMEDY IF AN INDUSTRIAL DISPUTE IS RAISED BY OTHER WORKERS JOINING AND THE MATTER BEING REFERRED BY THE GOVERNMENT.
Fact of the Case:
The management of the Safire Theatre decided to close down the snack bar and the maintenance section, and in pursuance of that decision, fourteen workers, including respondents Nos. 22 to 10, were retrenched with effect from 10th October, 1972. The required formalities in effecting retrenched under the Industrial Disputes Act were complied with, but the worker refused to receive the notice pay and composition, etc., offered at the time of retrenched. In October-November, 1972, the union raised an industrial dispute before the labour officer challenging the retrenched as illegal and unjustified when the dispute was pending before the Labour Department, the workers filed separator appeals before the Additional Commissioner for Workmen's Compensation under the Tamil Nadu Shops and Establishments Act challenging the termination as being in contravention of S.41 of that Act.
Finding of the Court:
The Court held that there is no repugnancy between the provisions of S.41 of the Madras Act and those of the Industrial Disputes Act as the subject-matter of the Madras Act is different from that of the Central Act and the field of operation is distinct and separate. There is also no repugnancy arising within the meaning of Art. 254(1) of the Constitution.
Issues: 1. Whether the remedy under S.41 of the Madras Shops and Establishments Act, 1947 is barred to a worker, though he might also have a remedy if an industrial dispute is raised by other workers joining and the matter being referred by the Government? 2. Whether both the remedies under the Madras Act and the Industrial Disputes Act are available to an individual workman? 3. Whether the dispensing with the services of the workmen could be challenged under S.41 of the Madras Act after a reference had been made under the Industrial Disputes Act? 4. Whether S.41 of the Madras Act is repugnant to the provisions contained in S.2A of the Central Act and is rendered ineffective by the provisions of Art. 254 of the Constitution of India?
Ratio Decidendi: 1. S.2A of the Industrial Disputes Act does not fully bar the remedy under S.41 of the Madras Shops and Establishments Act, 1947. If a decision is rendered under S.41(2) of the Madras Act before the Government had made a reference under S.10 of the Industrial Disputes Act, the decision would be final between the parties. But before the conclusion of the enquiry under S.41 of the Madras Act, if the Government makes a reference under S.10 of the Industrial Disputes Act, the pending proceedings under S.41 of the Madras Act cannot be continued. 2. Both the remedies are available. But if a reference has been made before the conclusion of the appeal under S.41 of the Madras Act, the proceedings under the Industrial Disputes Act will have to be followed. 3. After a reference had been made under the Industrial Disputes Act, the provisions of S.41 of the Madras Act would note be applicable, the dispensing with the services of the workmen could not be challenged under S.41 of that Act. 4. S.41 of the Madras Act is not repugnant to the provisions contained in S.2A of the Central Act and is not rendered ineffective by the provisions of Art. 254 of the Constitution of India.
Final Decision: The writ petition filed by the management is allowed and a writ of certiorari will issue and the order of the Additional Commissioner for Workmen's Compensation in T.S.E. Appeals Nos. 75 to 88 of 1973 is quashed.
P. S. Kailasam, C.J.
This petition is filed by the management of the Safire Theatre against the Additional Commissioner for Workmen's Compensation and nine workmen for the issue of a write of certiorari to quash the order of the Additional Commissioner for Workmen's Compensation In T.S.E. Appeal Nos. 75 to 88 of 1973.
2. Respondents Nos. 2 to 10 in the petition were employed in the sank bar and maintenance section of the Safire Theatre. The management decided to close down the snack bar and the maintenance section, and in pursuance of that decision, fourteen workers, including respondents Nos. 22 to 10, were retrenched with effect from 10th October, 1972. The required formalities in effecting retrenched under the Industrial Disputes Act were complied with, but the worker refused to receive the notice pay and composition, etc., offered at the time of retrenched. In October-November, 1972, the union raised an industrial dispute before the labour officer challenging the retrenched as illegal and unjustified when the dispute was pending before the Labour Department, the workers filed separator appeals before the Additional Commissioner for Workmen's Compensation under the Tamil Nadu Shops and Establishments Act challenging the termination as being in contravention of S.41 of that Act. The Additional Commissioner held that the retrenched was not bona fide and set aside the order of retrenched of 14th May, 1975. Against the said order, the present writ petition is filed.
3. When this petition came up before Koshal. J., the learned Judge felt that this is a fit case to be referred to a larger Bench, preferably a Full Bench, in view of the situation that quite a few complicated question of law arise for determination and are likely to arise in a very large number of case between labour and its employers. Thus the matter is now before a Full Bench.
4. It was submitted that, after the introduction of S.2A of the Industrial Disputes Act (hereinafter referred to as the Central Act), even though there may be dispute between an individual workman and the management regarding discharge, dismissal, retrenchment, etc., the dispute shall be deemed to be an industrial dispute and the only remedy available was under Central Act and not under the provisions of S.41 of the Madras Shops and Establishments Act, 1947 (hereinafter referred to as the Madras Act). In any event, it was submitted that the provisions of S.41 of the madras Act were repugnant to the provisions contained in S.2A of the Central Act and, therefore, S. 41 was rendered ineffective by the rule envisaged in Art. 254 of the Constitution of India. It was then submitted that even if it was held that both the remedies under the Central Act and the Madras Act were available, the respondents could not have recourse to both of them and they having elected to proceed under the Central Act, were not entitled to avail of the remedy under S.41 of Madras Act. It was further contended that, as the provisions of the Central Act relating to payment of compensation in respect of retrenchment had been followed, the remedy under S.41 of the Madras Act was not available. These contentions were points are referred to us for decision.
5. The Industrial Disputes Act, 1947, Central Act 14 of 1947, has been enacted by the Parliament for providing for investigation and settlement of industrial disputes and for certain other purpose. The preamble states that whereas it is expedient to make provision for the investigation and settlement of industrial disputes and for certain other purposes, the Industrial Disputes Act has been enacted. Therefore, the object of the legislation is for investigation and settlement of industrial disputes. The Act has continued under Chapter II the authorities under the Act, namely, Works Committee, Conciliation Officers, Boards of Conciliation, Courts of Inquiry Labour Courts. Tribunals, National Tribunals, etc. Chapter III of the Act provides for references of disputes by
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