GOPAL NAIDU A. v. STATE OF KARNATAKA — 1988 DIGILAW 489 (KAR)

P. P. BOPANNA, J. ( 1 ) 1. These petitions are disposed of by a common order since a common questions arise lor consideration in all these petitions. ( 2 ) THE petitioner is the proprietor of a Cinema Theatre known as 'sujatha theatre' and he has challenged the correctness and the validity of the orders made by the Labour Court, Bangalore on certain applications made by the workmen employed by him under Section 33c (2) of the Industrial Disputes Act (in short the I D. Act) and certain awards made by the very same Labour Court on references made by the State Government referring the disputes raised by his workmen touching the validity of the termination of their services Though these petitions were filed in the year 1980, they were not disposed of even after a lapse of nearly 8 years on account of some confusion in the submissions made by the learned advocate for the petitioner that these matters had been referred to a Division bench. When these petitions were posted before the Division Bench, the division Bench after looking into the records found that there was no order of reference by this Court referring these writ petitions to a Division Bench and accordirgly by its order dated 14-8-1984 the Division Bench directed the office to place the records before the Hon'ble chief Justice for securing appropriate orders for posting the same before a learned single Judge. Accordingly, these matters have come up before this Court for final disposal. ( 3 ) THE principal contention taken by the petitioner in these petitions is that the Labour Court had no jurisdiction either to entertain the applications under section 33c (2) of the I. D. Act or to adjudicate the references made by the state Government under the provisions of Section 10 (1) (c) of the Act. ( 4 ) MR. ( 3 ) THE principal contention taken by the petitioner in these petitions is that the Labour Court had no jurisdiction either to entertain the applications under section 33c (2) of the I. D. Act or to adjudicate the references made by the state Government under the provisions of Section 10 (1) (c) of the Act. ( 4 ) MR. H R. Venkataramanaiah, learned Counsel for the petitioner relied on the recent decision of the Supreme court in The Krishna District Co- operative Marketing Society Ltd. Vijayawada v N V. Purnachandra Rao and others (A I R. 1987 S C 1960; in support of his contention that the question of jurisdiction is concluded by that decision of Supreme Court and therefore, following the aforesaid decision, this Court must take the view that the authority constituted under the Karnataka Shops and commercial Establishments Act, (in short the Karnataka Act) is the proper and only forum for adjudication of the disputes between the petitioner and his workmen and not the Labour Court. According to the learned Counsel, the theatre in question being an establishment as defined u/sec. (2) e) of the Karnataka Act, the dispute between the petitioner and his workmen in regard to their conditions of seivice or the termination of service is a dispute which has to be adjudicated under the provisions of Section 39 of the Karnataka act and Section 39 (7) confers an exclusive jurisdiction to the workmen to obtain the reliefs that they had claimed in this case before the Labour Court and hence the Labour Court was wrong in entertaining the applications and the references under the relevant provisions of the I D. Act. He also submitted that the Karnataka Act is a special Act and the provisions of the Special Act should therefore prevail over the provisions of the I D. Act which is a general Act. He further submitted that regard being had to the relevant entries in the II Schedule to the constitution the Karnataka Act being a later Act and having received the assent of the President the provisions cf the karnataka Act should prevail over the provisions of the I D Act, though it is a central Act, in terms of Article 254 of the Constitution. ( 5 ) IN order to appreciate this contention, the relevant provisions of the karnataka Act should be considered first as also the provisions of the I D. Act. In the light of the provisions of Section 2 (e) and 3 (2) (i) and Chapters 2, 4, 5 and 6 there could be no doubt that the provisions of the Karnataka Act confer certain special rights on the workman who come within the meaning of the word 'employee' under that Act and therefore, those provisions in so far as they relate to conditions of service of the workmen should override the provisions of the I D. Act dealing with the conditions of service of the same workmen who are also workmen under the I D. Act. But the provisions of Section 35 of the Karnataka Act make it clear that if a workman covered under the Karnataka Act is entitled to larger benefits than what he could claim under the Karnataka Act, then he could avail himself of the larger benefits by resorting to the provisions of the other Acts which confer such larger benefits. Section 35 of the Karnataka Act reads as under :"saving of certain rights and privileges Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to under any other law, contract, custom or usage, applicable to such establishment, or any award, settlement or agreemert binding on the employer and the employee in such establishment, if such rights or privileges are more favorable to him than those to which he would be entitled under this act. "in the face of this provision, the provision of Section 39 (7) on which the learned counsel for the petitioner has placed reliance should be considered. Both sections 34 and 39 of the Karnataka Act come under Chapter-IX of the Act which deals with miscellaneous provisions. Section 34 deals with the maintenance of registers and records and display of notices under the Karnataka Act. I have already excerpted Section 35 in para 4 above. Section 36 provides that no suit, prosecution or other legal proceedings shall lie against the State Government or any officer of the State Government for anything which is in good faith done or intended to be done under this Act. I have already excerpted Section 35 in para 4 above. Section 36 provides that no suit, prosecution or other legal proceedings shall lie against the State Government or any officer of the State Government for anything which is in good faith done or intended to be done under this Act. Section 38 deals with the power of the state Government to suspend the provisions of the Act during fairs and festivals. Section 39 deals with the fight of the employer to remove or dismiss an employee. It also confers certain protection to the employees as could be presently seen when I go to the other rub sections of 39. Relevant Sections for the purpose of these petitions are Section 39 (1), (3) and (7 ). Under Section 39 (1) no employer shall remove or dismiss an employee who has put in service under him continuously for a period of not less than six months, except for a reasonable cause and unless and until one month's previous notice or pay in lieu thereof has been given to him. Section 39 (3) provides that :"where an employee has been removed or dismissed without reasonable cause or without proof of misconduct, the employee shall, where the employer does not agree to reinstate him, be entitled to such compensation as the appellate authority may determine, provided that such compensation shall not exceed an amount calculated at one month's pay for every year of service subject, in any case to the maximum of six month's pay. "section 39 (7) provides that:"if under any other law 0r under the terms of an award, agreement or contract of service, eny employee is entitled to a longer period of notice or to more favourable benefits than are provided in sub-section (1) or subsection (3) the provisions of the said sub-sections shall have effect as if such period of notice and such benefits had been enacted in this Act. " ( 6 ) MR Venkataramanalah-contended that if Section 39 (7) is read with the provisions of Section 25 (j) (ii) of the i D. Act the intendment of the legislature becomes clear, that is to say that any dispute touching the dismissal of an employee or removal of an employee who is covered by the Karnataka Act has to be adjudicated by the authority constituted under the Karnataka Act and not before the forum prescribed under the i D. Act. He relied on the following words in Section 39 (7), namely :"the provisions of the said subsection shall have effect as if such period of notice and such benefits had been enacted in this Act. ". If Section 39 has stood by itself without the provisions of Section 35 of the Karnataka Act, there was some scope for the learned Counsel to contend that Section 39 (7) provides a special forum for the worken covered under the Act. But the language of Section 35 is clear and in unmistakable terms it provides an alternative forum for the workmen to approach the Courts constituted under the I. D. Act if it is established that he is also a workman covered under the I D. Act, indisputably the workmen in these cases are workmen covered under the I D. Act as the petitioner is running an industry within the meaning of Section 2 (j) of the i D. Act and therefore, it is unnecessary for me to go into the various decisions cited by the learned Counsel for both sides. However, the decision of the supreme Court on which Mr. Venkata- ramanaich relied should be considered in order to appreciate the true scope of the decision That was a case where the learned single Judge cf the Andhra Pradesh High Court had taken the view that in view of the provisions of Section 40 (1) and (3) of the Andhra Pradesh Shops and establishments Act, the dispute touching the retrenchment of workmen covered by that Act has to be adjudicated by the authority constituted under that Act and the Labour Court has no jurisdiction to entertain the said dispute and that the validity of retrenchment should be decided on the basis of the provisions of Section 40 (1) and (3) of that Act and not on the basis of Chapter V A of the I. D. Act. That view was disapproved by the Division Bench of the Andhra Pradesh High court in the appeal preferred by the workmen. The Division Bench took the view that though the forum for adjudication is the authority constituted under the Andhra Pradesh Act, the law that should be applied for the determination of the validity of the retrenchment is the provisions of Chapter-VA of the I. D. Act and not the provisions of Section 40 (1) and (3) of the A P. Act. This view of the Division Bench was affirmed by the supreme Court in the aforesaid decision. Venkataramaiah J. speaking for the Court observed as follows :"the result of the above discussion is that if the employees are 'workmen' and the management is an 'industry as defined in the Central Act and the action taken by the management amounts to 'retrenchment' then the rights and liabilities of the parties are governed by the provisions of Chapter v A of the Central Act and the said rights and liabilities may be adjudicated upon and enforced in proceedings before the authorities under S. 41 (1) and S. 41 (3) of the State Act". The Supreme Court also considered the merits of the contention that the State act which was a later Act and which had received the assent of the President should prevail over the provisions of chapter V-A of the Central Act. The supreme Court observed as under : "we shall now proceed to consider the merits of the contention that the state Act which is a later Act and which has received the assent of the president should prevail over the provisions of Chapter V A of the Central act. The above contention is based on Art. 254 (2) of the Constitution and the argument is that the provisions of s. 40 which deal with termination of service in a shop or an establishment contained in the State Act which is enacted by the State Legislature in exercise of its powers uru-er Entry 22 of List III of the Seventh Schedule to the Constitution being repugnant 10 the provisions contained in Chapter v-A of the Central Act which is an earlier law also traceable to Entry 22 of the List III of the Seventh Schedule to the Constitution should prevail as the assent of the President has been given to the State Act. It is true that the state Act is a later Act and it has received the assent of the President but the question is whether there is any such repugnancy between the two laws as to make the provisions of the central Act relating to retrenchment ineffective in the State of Andhra pradesh. It is seen that the State Act does not contain any express provision making provisions relating to retrenchment in the Central Act ineffective insofar as Andhra Pradesh is concerned we shall then have to consider whether there is any implied repugnancy between the two laws. Chapter V-A of the Central Act which is the earlier law deals with cases arising out of lay off and retrenchment Section 25j of the central Act deals with the effect of the provisions of the Chapter V-A on the other laws inconsistent with that Chapter. Sub-section (2) of S. 25j is quite emphatic about the supremacy of the provisions relating to the rights and liabilities arising out of lay-off and retrenchment. These are special provisions and they do not apply to all kinds of termination of services. Section 40 of the State Act deals generally with, termination of service which may be the result of misconduct, closure, transfer of establishment etc. If there is a conflict between the special provisions contained in an earlier law dealing with retrenchment and the general provisions contained in a later law generally dealing with terminations of service, the existence of repugnancy between the two laws cannot be easily presumed. In Maxwell on the Interpretation of Statutes, (12th Edn.) at page 196 it is observed thus :"now if anything be certain it is this, "said the Earl of Selborne L. C. in the Vera Cruz, (1884) 10 App Cas 59 at p 68 "that where there are general words inalater Act capable of reasonable and sensible application without extending them to subjects specially deaith with by earlier legislation, you are not to hold that earlier and special legistation indirectly repealed, altered or Derogated from merely by force of such general words, without any indication of a particular intention to do so". In a later case. Viscount Haldane said: We are bound. . . . . . . In a later case. Viscount Haldane said: We are bound. . . . . . . to apply a rule of construction which has been repeatedly laid down and is firmly established It is that wherever parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough even though by its terms it is stated so widely that in would, taken by itself, cover special cases of the kind I have referred to". These observations of the Supreme court do not in any way advance the case of the petitioner since there is no provision in the Andhra Pradesh Act similar to the provisions of Section 35 of the karnataka Act. Even as-suming such a provision is there, the effect of such provision did not arise for consideration by the Supreme Court in the aforesaid case. In the circumstances, that decision of the supreme Court does not lay down any proposition of law which would support the contention of the petitioner. ( 7 ) IN my view, the case of the petitioners has to be decided in the light ot the provisions of Section 35 read with section 39 (7) of the Karnataka Act. Section 39 (7) of the Karnataka Act is the provision which enables the workmen covered by that Act to claim reliefs which are covered by Section 39 (1) and (3) of the Karnataka Act. That is all the limited scope of Section 39 (7 ). But is does not expressly or impliedly act in derogation of the provisions of Section 35 of the karnataka Act which confer a right on the workmen to approach the forum available under the I D. Act if he is a workmen who is covered by that Act. That is all the limited scope of Section 39 (7 ). But is does not expressly or impliedly act in derogation of the provisions of Section 35 of the karnataka Act which confer a right on the workmen to approach the forum available under the I D. Act if he is a workmen who is covered by that Act. I have earlier observed that there is no dispute that the respondents workmen are covered by the provisions of the I. D. Act and therefore, their right to approach the labour Court is not expressly or impliedly taken away by the provisions of Section 39 (7) of the Karnataka Act or the provisions of Section 25j (ii) of the I D. Act. ( 8 ) AS observed by me in 1981 (1) karnataka Law Journal P. 136 (Harugeri urban Co-op Bank v State of Karnataka and ors.) it cannot be said the karnataka Act has created a new right, which has no existence apart from the statute creating it and the statute creating the right at the same time has prescribed a particular method of enforcing it, I had relied on the decision of the house of Lords in PYX Granite Co. v ministry of Housing in support of my view. The relevant portion of the speech of House of Lords reads as : -"where a statute creates a new right which has no existence apart from the statute creating it and the statute creating the right at the same time prescribes a particular method of enforcing it, then, in the words of Lord watson in Barraclough v Brown (1897) ac at p. 622 the right and the remedy are givsn uno flatu, end the one cannot be dissociated from the other'. As Lord herschell put it in the same case (1897) ac at p. 620, the party asserting the right cannot : - 'claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right' ". As Lord herschell put it in the same case (1897) ac at p. 620, the party asserting the right cannot : - 'claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right' ". ( 9 ) SECTION 35 of the Karnataka Act expressly provides an alternative remedy for resolving the disputes raised by the workman and that alternative remedy is found in the provisions of the I. D. Act and therefore there is no substance in the contention that the Labour Court had no jurisdiction to entertain the applications and references in question. For these reasons the challenge to the jurisdiction cf the Labour Court to entertain the applications and to adjudicate the references fails. ( 10 ) ON merits, the records disclose that in almost all the cases the petitioner did not contest the proceedings ; either he did not adduce evidence in support of his obiections or he remained absent and unrepresented on the date the case was set down for evidence. ( 11 ) THE learned Counsel for the petitioner submitted that the petitioner had Ieft the entire management of his business to his Maneger and that manager did not take the necessaiy steps to safeguard his interest It is not possible to accept this plea on behalf of the petitioner since the petitioner had been properly served with notices of the proceeding before the Labour Court and he had engaged his Counsel before the labour Court and if the Counsel had not performed his duties satisfactorily the petitioner has to proceed against his counsel who had been entrusted with the brief. ( 12 ) NOW coming to individual petitions, W P 5678/81 is filed against the order granting wages for the period of suspension. The plea of the petitioner is that he had terminated the services of the workman and therefore the workman was not put on suspension and the claim for wages for the period of suspension is not maintainable. No evidence was produced before the Labour Court to prove that the services of the workman were terminated by the petitioner. In the circumstances, the order of the Labour court does not call for interference. ( 13 ) W. P. No 386/80 relates to the workman-Krishnaraju. No evidence was produced before the Labour Court to prove that the services of the workman were terminated by the petitioner. In the circumstances, the order of the Labour court does not call for interference. ( 13 ) W. P. No 386/80 relates to the workman-Krishnaraju. The Labour Court directed reinstatement of the workman with continuity of service and back wages and all other consequential benefits. This award was made on 11th of August, 1977 and therefore at this distance of time it is not proper to direct the reinstatement of this workman with continuity of service. Therefore the proper order to make is to modify the award in so far it relates to reinstatement with continuity of service and award a lumpsum amount to the workman in full and final settlement of his claim. If I were to take into consideration the increase in wages pursuant to the minimum wage notification made in 1977 and the subsequent notifications the amount, that may become due to the workman would exceed to Rs one lakh. But, the calculation of back wages at that rate would put the petitioner out of business and that would result in total deprivation of any amount due to the workman. In the circumstances, the proper order to make is to calculate the back wages at the rate of Rs 2001- per mensum from the date of termination upto this date and direct the petitioner to pay the said amount in two equal instalments The first instalment shall become payable on or before 15th December, 1988 The second instalment on or before 15th March, 1989. Accordingly, the workman-Krishnaraju would be entitled to a sum of Rs. 30,000/ less any amount already paid by virtue of the interim order made by this Court in two equal instalments in full and final settlement of all his claims against the petitioner. Likewise, the workman-Bakshu in W. P. No. 384/80 will be paid the same amount in two equal instalments less the amount already paid to him by virtue of the interim order made by this Court. Likewise, the workman-Bakshu in W. P. No. 384/80 will be paid the same amount in two equal instalments less the amount already paid to him by virtue of the interim order made by this Court. The same order would cover the case of workman-Rangaswamy in W. P. No 376/30 and the workman Narasimha in W P. No. 370/80 In view of this modification of the impugned awards, the orders of the Labour Court on the application made by these four workmen under Section 33 (c) (2) of the i D. Act are quashed since those orders were made for computation of back wages due to the workmen consequent on the awards made by the Labour Court earlier in their favour. In W. P. No. 1123/80 the workman- Ramu is no more. Therefore, his legal representatives are entitled to the benefit of the award as modified. They are not brought on record. But, all the same, it is open to this Court to make an order directing the petitioner to pay the legal representatives of Ramu the same amount that is payable to the other workman viz. Narasimha, Bakshu, krishnaraju and Rangaswamy. Consequently, the order made under Section 33 (c) (2) of the I D. Act in W. P. 336/80 is quashed. Similar orders in W P. No. 15915/79 connected with W. P. No. 5717) 81 and also in W P. 17423/79 connected with W. P. 5722/81 are also quashed. ( 14 ) IN the result, these Writ Petitions are partly allowed and the impugned awards of the Labour Court are modified as indicated above and the impugned orders of the Labour Court made under section 33 (c) (2) of the I. D. Act except: in W. P. 5678/81 are quashed. It is further made clear that these workmen would be entitled to all the statutory v benefits viz the P. P. contributions standing in their account and also gratuity for every completed year of service to be recknowed from the date of entry into service upto date as if they had remained in service The workmen would be entitled to exemption from the payment of income-tax if any in terms of the decision of the Supreme Court reported in sundaram Motors Pvt Ltd. v Ameerjan and another (AIR 1985 Supreme court page 144 ). The petitioner shall comply with the order of this Court within eight weeks from the date of receipt of this order, otherwise the first instalment due to the workmen will carry interest at the rate of 12% from the date of this order upto the date of realisation and likewise the second instalment which becomes due on 15th march, 1989. Parties to bear their own costs in all these petitions. Writ Petitions Partly Allowed. --- *** --- .