SHERTHALLAI SREENARAYANA MEDICAL MISSION GENERAL HOSPITAL Vs. DAMODARAN KRISHNAN UNNI
LAWS(KER)-1974-6-2
HIGH COURT OF KERALA
Decided on June 03,1974

SHERTHALLAI SREENARAYANA MEDICAL MISSION GENERAL HOSPITAL Appellant
VERSUS
DAMODARAN KRISHNAN UNNI Respondents

JUDGEMENT

- (1.) Respondents 1 and 2 are the appellants in this Civil Miscellaneous Appeal. Plaintiff was appointed cashier in the Sree Narayana Medical Mission Hospital conducted by the defendants. 1st defendant is the President of the Mission and the 2nd defendant is its Administrative Officer. Plaintiff was suspended from service by the 2nd defendant. Though suspension continues, no enquiry has been conducted against the plaintiff and hence this suit for a declaration that he is still an employee of the defendant Mission and also for recovery of salary is filed. The Trial Court found that the plaintiff's service has not been terminated and he is only under suspension, and so finding held that the plaintiff is entitled to have a declaration that he is still an employee of the defendant Mission. Regarding the prayer for recovery of arrears of salary the Trial Court took ,the view of that it has no jurisdiction to decree the claim which, in its opinion, is exclusively conferred on Labour Court in view of the Shops and Commercial Establishments Act read with the Payment of Wages Act, 1936 (Central). On appeal there was no challenge from the defendants regarding the declaration granted to the plaintiff that he continues to be an employee of the Mission. The lower appellate court found that the Payment of Wages Act and Shops and Commercial Establishments Act will not apply to this case and so set aside the finding of the lower court and remanded the matter for considering the other issues involved in the case. This C. M. Appeal is against that order of remand.
(2.) The learned counsel for the appellants contended that though this Missions is run on charitable lines, in view of the notification issued by the Government in 1963 under which the Payments of Wages Act is made applicable to shops and establishments governed by the Shops and Commercial Establishments Act, 1960, this claim for arrears of salary is not maintainable. The said Notification reads thus: - "In exercise of the powers conferred by sub-s.(1) of S.17 of the Kerala Shops and Commercial Establishments Act. 1960 (Act 34 of 1970), the Government of Kerala hereby direct that the Payment of Wages Act, 1936 (Central Act 4 of 1936) and the rules made thereunder shall apply to all the employees in all the shops and establishments to which the Kerala Shops and Commercial Establishments Act, 1960, applies." To see whether this Notification will apply one has to read and understand the scope of the definition of "commercial establishment" in S.2(4) of the Kerala Shops and Commercial Establishments Act, 1960, which is in the following terms: - "commercial establishment means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 (Central Act 63 of 1948) apply;" This definition, no doubt, takes in an establishment in which persons employed are mainly engaged in office work. If there is no other notification exempting the establishments similar to that of the Mission in this case, in view of the decisions of this court reported in Superintendent v. Kunhan Kartha 1967 KLT 941 and also Karunakaran Nair v. Authority under Payment of Wages Act 1971 KLT 661 the defendants' establishment will be roped in by the definition, and by the notification under S.17 of the Act the provisions of the Payment of Wages Act will bar a suit for recovery of arrears of salary. To this, no doubt, the respondent's counsel referred me to the decision reported in Dr. Devendra M. Surti v. State of Gujarat AIR 1969 SC 63 and contended that the word "establishment" in S.2(4) of the Shops and Commercial Establishments Act cannot be given the dictionary meaning. Its scope, according to him, has to be gathered from the associated expressions used earlier in the section on the principle of noscitur a sociis. Though this contention requires a closer examination, it is not necessary to go into that question in this case for the reasons given below. He also contended that S.22 of the Payment of Wages Act which debars a suit does not apply to the facts of this case, because, according to him, the scope of the present suit is not limited to a claim for recovery of salary or wages of an employee. S.22, according to him, will apply only to bar a suit in which the only relief is a claim for recovery of arrears of wages or salary. If in the suit there are other reliefs claimed and the claim, for wages is only ancillary, to the main relief S.22 cannot debar a suit. If it is necessary to apply the provisions of the Payment of Wages Act, I am prima facie inclined to take the view that on the language of S.22 of the Payment of Wages Act a suit of the nature as in this case is not barred. But, it is not necessary for me to express a final opinion in view of another contention urged by the respondent and relied on by the lower appellate court. The Shops and Commercial Establishments Act, 1960 repeals and reenacts the Shops and Establishments Act, 1125. While the latter Act was in force, a notification was issued by the Government exempting nursing homes, hospitals and other institutions for the treatment or care of the sick, the infirm, the destitute or mentally unfit persons from the provisions of the Shops and Establishments Act. That notification reads as follows: "In exercise of the powers conferred by S.6 of the T. C. Shops and Establishments Act, 1125 (Act IX of 1125) and in supersession of the T. C. notification L6 - 7100/52/DD dated 16th July 1952 the Government of Kerala hereby exempt permanently from all the provisions of the said Act the following classes of establishments in the former Travancore - Cochin area of the State namely:- (1) Doctors' consulting rooms, (2) Dispensaries attached to Doctor's consulting rooms, and (3) Nursing homes, hospitals and other institutions for the treatment or care of the sick, the infirm, the destitute or the mentally unfit." This notification issued under S.6 of that Act has not been cancelled subsequently. A provision similar to S.6 of Shops and Establishments, Act, 1125, is enacted in S.5 of the Kerala Shops and Commercial Establishments Act, 1960. So, this notification will be consistent with the provisions of the later Act and can be issued under the latter Act and so long as the said notification has not been cancelled it could be taken as having been issued under the latter Act by virtue of S.23 of the Interpretation and General Clauses Act, 1125 and shall continue in force until cancelled. In this view the lower appellate court is correct in holding that the provisions of the Shops and Commercial Establishments Act do not apply to a claim for arrears of salary made in this case. Hence the order of remand cannot be said to be illegal or incorrect. I sustain the same. This Civil Miscellaneous Appeal is dismissed with costs.;


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