Decided on January 12,1967



- (1.) THE question that was debated in this O. P. is whether the Kerala Shops and commercial Establishments Act 1960 (Act 84 of 1960) is inconsistent with, or repugnant to, the Motor Transport Workers Act 1981 (Central Act 27/1981) (hereinafter referred toas the 'kerala Act' and the 'central Act' ). The petitioner is the Manager of the Anamalais Bus Transport Ltd. The 1st respondent was a temporary employee under the petitioner from 7-2-1964 to 10-6-1964. On an appeal preferred by 1st respondent to the 2nd respondent, (the E pellate authority under Section 18 of the Kerala Shops and Commercial Establishment Act 1960), the 2nd respondent found that there had been an illegal termination of the service of the 1st respondent and directed the 1st respondent's reinstatement with a payment of Rs. 250 in lieu of back wages for the period for which he was kept out of employment. On default, the petitioner was directed to pay the 1st respondent a further sum of Rs. 500 in lieu of reinstatement and all other claims, before a specified date. This writ petition is to quash the said order, a certified copy of which, if Ext P-1. Section 18 (1) and (2) of the Kerala Shops and Establishments act 1960 read as follows:- " notice of dismissal -- (1) No employer shall dispense with the services of an employee employed continuously for a period of not less than six months, except for a reasonable cause and without giving such employee 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 employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. (2) Any employee whose services are dispensed with may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer. x x xx the preamble to the Act states that it is an Act to consolidate and amend the law relating to the regulation of conditions of work and employment in the shops and commercial establishments in the State of Kerala. My attention was called to sections 6 to 9, 11, 13, 14, 12, 19 and 20 of the act. The Motor Transport Workers Act 1961 is an Act to provide for the welfare of motor transport workers and to regulate the conditions of their work. Attention was called to Sections 13, 26, 15, 16, 19. 27, 28, 25, 21 and Sections 8 to 12 enacted with a view to secure the object of the Act, and it was contended that there is substantial identity or correspondence between these provisions of the Central Act and the provisions of the Kerala Act referred to earlier. Section 37 (1) of the central Act 27 of 1961, in so far as it material reads as follows: "37. Effect of laws and agreements inconsistent with this Act. (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act: x X X and Section 81 of the Kerala Act reads: "81. 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 on the date this Act comes into force, under any other law, contract, custom or usage applicable to such establishment, or any award: settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this act. " There is no provision corresponding to Section 18 of the Kerala Act, in the Central act 27 of 1961. The Kerala Act received the assent of the President on 16th december 1960 and was published in the Gazettes on 23rd December 1960. The central Act received the assent of the President on 20-5-1961 and was published in the Gazette on 22-5-1961.
(2.) ON the above provisions of the two Acts, counsel for the petitioner contended that the same field covered by the Kerala Act namely conditions of work and employment in Shops and Commercial Establishments was also covered by the central Act, with specific reference to the welfare and conditions of service of motor transport workers. It was contended that the Kerala Act being inconsistent with or repugning to, the Central Act, was void under Article 254 (1) of the constitution. It was further contended that the Central Act having dealt specifically with the conditions of Service of motor transport workers would exclude the Kerala act dealing generally with the conditions of service of workers in all shops and commercial establishments. Article 254 (1) of the Constitution reads: "254 (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by parliament, whether passed before or after the law made by the legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, be void. "
(3.) IT was common ground before me that the legislative power for the two Acts could be traced to entries 28 and 24 of List III of Schedule VII of the Constitution of India. Both the legislatures being competent to enact the respective statutes, the question of repugnance of the one to the other falls to be examined. In Ch. Tika Ramji v. State of Uttar Pradesh, AIR 1956 SC 676, the question of repugnance of the U. P. Sugarcane (Regulation of Supply and Purchase) Act 1953 to the Industries (Development and Regulation) Act of 1951, and to the Essential commodities Act of 1955 arose for consideration. At page 698, the Supreme Court observed: "we are here concerned with the repugnancy if any arising by reason of both Parliament and State Legislature having operated in the same field in respect of a matter enumerated in the concurrent List. . . . . ";

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