Decided on August 13,1952



Subba Rao, J. - (1.) This is an application for issuing a 'writ or certiorari' to quash the order of the Additional Commissioner for Workmen's Compensation, Madras, dated 23rd July 1951. The petitioner is the South India Bank Ltd. Respondent 1 was a clerk in the office of the petitioner. On 25-9-1950 he was served with a notice of termination of his employment. In the said notice it was stated that on account of retrenchment his services were terminated with effect from 1-10-1950. On 18-10-1950 he preferred an appeal under Section 41(2), Madras Shops and Establishments Act, 1947 (hereafter called the Act) to the Labour Commissioner, Madras, Questioning the validity of the termination of service. The Additional Commissioner for Workmen's Compensation, after making the prescribed enquiry and after hearing the parties, held that the discharge of the applicant was not for a reasonable cause and set aside the order of the bank discharging the petitioner. The bank filed the aforesaid writ for quashing that order.
(2.) Learned counsel for the petitioner made a three-pronged attack on Section 41 of the Act based on Article 14 of the Constitution of India which guaranteed to every person equality before the law and equal protection of the laws in the territory of India. It was said that the provisions of the Act made a discrimination between employee and employee & employer & employer & also conferred on the Commissioner a naked arbitrary power to interfere with the right of the employer to discharge the employee. To appreciate the contentions raised, it will be convenient at the outset to read the relevant sections of the Act and to consider the case law on the subject. Section 2(5): "'Employer' means a person owning, or having charge of, the business of an establishment and includes the manager, agent or other person acting in the general management or control or an establishment; Section 2(3): "Commercial establishment" means an establishment which is not. a shop but which carries on the business of advertising, commission, forwarding or commercial agency, or which is a clerical department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, brokers' office or exchange and includes such other establishment as the Provincial Government may by notification declare to be a commercial establishment for the purposes of this Act. Section 2(12): "Person employed" means (iii) in the case of a commercial establishment other than a clerical department of a factory or an industrial undertaking a person wholly or principally employed in connexion with the business of the establishment, and includes a peon; Section 5: Notwithstanding anything contained in Section 4, the Provincial Government may, by notification apply all or any of the provisions of this Act to any class of persons or establishments mentioned in that section, other than those mentioned in Clauses (c) and (f) of Sub-section (1), and modify or cancel any such notification. Section 6: The Provincial Government may, by notification exempt either permanently or for any specified period, any establishment or class of establishments, or person or class of persons, from all or any of the provisions of this Act, subject to such conditions as the Provincial Government deem fit. Section 41(1): No employer snail dispense with the service of a person employed continuously for a period of not less than six months, except for a reasonable cause & without giving such person at least one month's notice or wages in lieu of such notice, provided, however that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose." The Act was passed to provide for the regulation of conditions of work in sloops, commercial establishments, restaurants, theatres and other establishments and for other purposes, the Act was conceived and enacted to improve the conditions of the employees of the particular class of establishments under private control. Under Section 41, the validity whereof is now questioned, a person employed in an establishment defined in the Act is given protection against arbitrary determination of his services. He is also given a right of appeal to the authority prescribed in the Act. I shall revert to the subject of validity after noticing some of the leading American cases cited at the Bar.
(3.) The relevant provision of the Constitution is Article 14. It declares: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." The phrase "equality before the law" occurs in all written Constitutions; but the phrase "equal protection of the laws" is adopted from the constitution of the United States -- see Article 14 of the Amendment of the Constitution of the United States of America. Article 14 says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In --'William Adair v. United States', (1908) 52 Law Ed. 436, the question raised was the constitutionality of certain provisions of the Act of Congress concerning carriers engaged in interstate commerce and their employees. No employer shall threaten an employee with loss of employment or unjustly discriminate against any employee because of his membership in labour corporations, associations or organisations. William Adair discharged the employee, O. B. Coppage, because of his membership in a labour organisation. He was, therefore, charged for unjustly discriminating against an employee of a common carrier and an employer engaged in interstate commerce because of his membership in a labour organisation. The question was whether the impugned Part of the tenth section of the Act was repugnant of the Fifth Amendment to the Constitution declaring that no person shall be deprived of liberty or property without due process of law. It may be mentioned that the Fifth Amendment of the Constitution does not provide for "equal protection of the laws". The Supreme Court, therefore, was investigating in that case whether the right of property and personal liberty were violated by Article 14. Harlan J. laid down the scope of the Fifth Amendment at page 441 as follows: "In our opinion that section, in the particular mentioned, is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embrace the right to make contracts for the purchase of the labour of others, and equally the right to make contracts for the sale of one's own labour; each right, however, being subject to the fundamental condition that no contract, whatever its subject-matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests, or as hurtful to the public order, or as detrimental to the common good. This Court has said that in every well-ordered society, charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.........";

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