SURYAPET CO OPERATIVE MARKETING SOCIETY LTD Vs. MUNSIF MAGISTRATE SURYAPET
LAWS(APH)-1972-3-12
HIGH COURT OF ANDHRA PRADESH
Decided on March 04,1972

SURYAPET CO-OPERATIVE MARKETING SOCIETY LTD., SURYAPET, BY ITS SECRETARY Appellant
VERSUS
MUNSIF MAGISTRATE, SURYAPET Respondents

JUDGEMENT

Sriramulu, J. - (1.) (Judgment of the Bench was delivered by ) 1. The respondent No. 3 who was working under the petitioner the Suryapet Co-operative Marketing society Ltd., as a Store. keeper submitted his resignation on 21-11-1969 for some domestic reasons, and handed over charge of his post on 9-1-1970. As the chargelist prepared by him was improper, he prepared and submitted another charge list on 26-3-1970 On a security of the charge-list it was found that the respondent No 3 had not acrounted ior stocks of the value of Rs. 533-32 Ps. At the instance of respondent No. 3, the 2nd respondent the Assistant Inspector of Labour, addressed two letters to the petitioner-Society asking it to pay the provident fund, gratuity and other benefits to respondent No 3. The petitioner sent a reply to the effect that, after settlement of the accounts if anything was due in law, it will be paid to respondent No 3.
(2.) In the meanwhile, respondent No. 3 through respondent No. 2 filed O. P. No. 17 of 1070 in the court of the Munsif Magistrate, Suryapet, under section 43 of the Andhra Pradesh Shops and Establishments Act, 1966 (hereinafter called "the Act") claiming (1) service gratuity under Section 40 (1); (2) two months' salary for non-payment of gratuity under Section 40 (2) ; (3) Forty five day's leave salary under Section 24 (5) ; and (4) provident fund and bonus for the years 1966-67 and 1967-68.
(3.) According to the petitioner, Section 40 (1) of the Act imposing an obligation on an employer to pay gratuity to an employee after putting in service of six months, both in cases of retirement as well as resignation, is an unreasonable restriction on the rights of the members of the society to carry on trade and business, which are guaranteed to acitizen under Art. 19(1)(g) of the Constitution of India. A factory employing several persons, need not pay gratuity to its workers unless a scheme is framed by an industrial adjudication, whereas a petty businessman has to pay gratuity without the benefit of such a scheme being framed by the industrial adjudication, taking into consideration the capacity of the employer to pay and therefore, section 40(1) of the Act violates Art. 14 of the Constitution of India and is hence void. The provident fund and bonus do not come within the purview of the definition of "wages" and hence an enquiry relating thereto falls outside the scope of enquiry which a Munsif Magistrate is authorised to hold under Section 43 of the Act.;


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