Back
1992 Supreme(Mad) 472
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.R. LAKSHMAN
AIR FRANCE
Versus
DY. COMMR. OF LABOUR
W.P.No: 3388 of 1988
Decided On : 16-09-1992
M.S. Sivan, P. Shanmugham, S. Govind Swaminathan, Advocates.
Section 5 of the Tamil Nadu Shops and Establishments Act, 1947, is valid and constitutional. It does not suffer from the vice of excessive delegation. The State Government can withdraw the exemption granted under Section 4 of the Act by issuing a notification. The order of termination issued by the petitioner to the 2nd respondent was not valid and legal. It did not contain a reasonable cause and was, therefore, void and non-est.
Headnote:
SHOPS AND ESTABLISHMENTS ACT - SECTION 4(1)(A) - SECTION 5 - SECTION 41(2) - CONSTITUTION OF INDIA, ARTICLE 251 - DELEGATION OF LEGISLATIVE POWER - VALIDITY - EXEMPTION FROM THE ACT - WITHDRAWAL BY NOTIFICATION - REASONABLE CAUSE FOR TERMINATION OF SERVICE - DISCLOSURE IN ORDER OF TERMINATION - ESSENTIAL LEGISLATIVE FUNCTION - STANDARDS AND GUIDELINES - LIBERAL INTERPRETATION OF WELFARE LEGISLATION - CONTRACT BETWEEN EMPLOYER AND EMPLOYEE - OVERRIDING EFFECT OF STATUTORY PROVISIONS - JURISDICTION OF APPELLATE AUTHORITY UNDER SECTION 41(2) - ORDER OF TERMINATION WITHOUT REASONABLE CAUSE - VOID AND NON-EST.
Fact of the Case:
The petitioner, Air France, had an office in Madras with the 2nd respondent as the District Manager. Due to economic reasons, the petitioner decided to close its Madras office and sent a notice to all the authorities prescribed under the Tamil Nadu Shops and Establishments Act, 1947 (the Act), as well as to the affected parties, including the 2nd respondent. The services of the workmen were terminated in accordance with the law, and they were offered their full terminal compensation. The 2nd respondent contended that by G. O. Ms. No. 4074, Industries, Labour and Housing (Labour), dated October 5, 1966, all the provisions of the Act had been made applicable to the class of persons mentioned in Clause (a) of Subsection (i) of Section 4 of the Act. The petitioner argued that Section 5 of the Act, which allowed the State Government to apply the provisions of the Act to any class of persons or establishments, was an unconstitutional delegation of legislative power.
Finding of the Court:
The court held that Section 5 of the Act was valid and did not suffer from the vice of excessive delegation. The State Government had not usurped the functions of the State Legislature, and Section 5 did not contravene any constitutional provision. The court also held that the order of termination issued by the petitioner to the 2nd respondent did not contain a reasonable cause and was, therefore, void and non-est.
Issues: 1. Whether Section 5 of the Tamil Nadu Shops and Establishments Act, 1947, is valid and constitutional. 2. Whether the State Government can withdraw the exemption granted under Section 4 of the Act by issuing a notification. 3. Whether the order of termination issued by the petitioner to the 2nd respondent was valid and legal.
Ratio Decidendi: 1. Section 5 of the Act is valid and constitutional. It does not suffer from the vice of excessive delegation. The State Government has not usurped the functions of the State Legislature, and Section 5 does not contravene any constitutional provision. 2. The State Government can withdraw the exemption granted under Section 4 of the Act by issuing a notification. Section 5 of the Act overrides the provisions of Section 4. Since the exemption contained in Section 4 is subject to the provisions of Section 5, the delegated authority, by issuing the notification withdrawing the exemptions, is not altering the statute or acting contrary to the statute. 3. The order of termination issued by the petitioner to the 2nd respondent was not valid and legal. It did not contain a reasonable cause and was, therefore, void and non-est.
Final Decision: The writ petition was dismissed.
A. R. Lakshman, J.
( 1 ) THE petitioner above named has filed the present writ petition for the following relief. To issue a writ of certioriari or any other writ, order of direction, calling for the records of the 1st respondent culminating in the order date November 20, 1987 in T. S. E. A. No. 27 of 1987 and quash the same.
( 2 ) IN brief, the relevant facts of the case are as follows: Air France has an office at Madras and the 2nd respondent was the District Manager, along with five other employees. The petitioner management decided to close its Madras office for economic reasons. In compliance with the requirements of Section 25ffa, under which a statutory notice of sixty days to various authorities of the State and the affected parties has to be given. By letter dated January 8, 1987, the notice intimating the managements intention to close its Madras office with effect from March 31, 1987 was sent to all the authorities prescribed under the Act as well as to the affected parties. The services of the workmen were terminated in accordance with law and they were offered their full terminal compensation.
( 3 ) THE conditions of service of the supervisory and managerial staff are governed by regulations and conditions of service agreed by the parties. In terms of Clause 8. 1 of the said regulations, by letter dated February 27, 1987, the services of the 2nd respondent were terminated with effect from March 31, 1987. But, as the 2nd respondent has averred that the said letter reached him only on March 6, 1987, the petitioner management paid him his salary for April, 1987 also, in effect, his services stand terminated from May 1, 1987. The 2nd respondent was admittedly the District Manager of the Madras office of the petitioner and therefore, Section 4 (1) (a) of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as the Act) excludes its applicability to the 2nd respondent. The above Section has been included in the Act by the competent Legislative Assembly of the State of Tamil Nadu. The power to legislate for State vests in the State Legislative Assembly, and the State Legislative Assembly alone is competent to amend, modify or repeal any substantive provision of the Act. There is no change made in Section 4 (1) (a) of the Act by the State Legislature Assembly.
( 4 ) HOWEVER, the 2nd respondent contended in his reply affidavit before the 1st Respondent/deputy Commissioner of Labour (Appeals) that by G. O. Ms. No. 4074, Industries, Labour and Housing (Labour), dated October 5, 1966, all the provisions of the Act have been made applicable to class of persons mentioned in Clause (a) of Subsection (i) of Section 4 of the Act. The aforesaid G. O. , was issued by the Governor of Tamil Nadu in exercise of the powers conferred by Section 5 of the Act. According to the petitioner, Section 5 of the Act has delegated powers to the State to apply the provisions to any class of persons by notification, but the power does not go and cannot go to the extent of allowing the delegate (in this case, the State) to amend or change a substantive provision of the Act itself. This is a function which can be done only by the State Legislative Assembly. That apart, Section 4 (1) (a) of the Act deliberately excludes the applicability of the Act to persons employed in any establishment in a position of management. It is settled law that conditions of service of management employees are governed by the conditions of service entered into by the parties under the common law of master and servant. In the circumstances it is submitted by the petitioner/ management that even if it is assumed that Section 4 (1) (a) of the Act has lost its force by virtue of the above mentioned notification of the State Government, the said notification will be hit by Article 251 of the Constitution of India and be void to the extent of its repugnancy in its application to managerial or supervisory officers whose conditions of service are gov
