ORDER
K.A. Swami, C.J.
1. This Writ Appeal is preferred against the Order dated July 21, 1994, passed by the learned Single Judge in W.P. No. 12445/94.
2. The petitioner sought for quashing the order issued by the 2nd Respondent, namely, the Deputy Commissioner of Labour of M.W. No. 103/92 dated April 4, 1994, directing the appellant to apply the minimum wages fixed for the employees working in the shop of the appellant society. The learned single judge has held that the employees working in the shop of the appellant fall within the schedule employment, therefore, the provisions of the Minimum Wages Act, hereinafter referred to as the Act, are attracted, hence, the order passed by the 2nd Respondent, does not call for interference.
2-A. Before us it is contended by the learned counsel for the appellant that the appellant is a Service Co-operative Society, that for the benefit of its members it runs a fair price shop, and as such, it does not fall under the provisions of the Tamilnadu Shops and Establishments Act, therefore, the provisions of the Minimum Wages Act are not attracted. It is further contended by the learned counsel for the appellant that the appellant being a Co-operative Society, it is bound by the Notification issued by the State Government regarding the service conditions of its employees, therefore, it cannot be made to apply the notification issued under the Minimum Wages Act, as there cannot be two authorities controlling the appellant.
3. We will consider each one of the above contentions. It is no doubt true that the appellant is a Service Co-operative Society and it is running a fair price shop, which falls within the definition of ‘Shop’ under the Tamil Nadu Shops and Establishments Act and the employment in the shop falls within the schedule to the Act. The State Government, in exercise of its power under Section 27 of the Act, has amended Part I of the Schedule to the Act, by G.O. Ms. No 201, Labour and Employment dated March 25, 1994, thereby it has added employment in printing press, shops, commercial establishments and cinemas. Thus the employment in shops is one of the schedule employment, whether the shop in question falls within the provisions of the Tamil Nadu Shops and Establishments Act or not, it being a shop, the employment in the shop falls within the schedule employment. Apart from that, the Tamilnadu Shops and Establishments Act specifically defines the shop as follows
“2(16): “shop” means any premises where any trade or business is carried on or where services are rendered to customers and includes offices, storerooms, godowns and ware- houses, whether in the same premises or otherwise used in connection with such business but does not include a restaurant, catering – house or commercial establishment”.
The shop in question is a fair price shop, wherein the articles are sold by the appellant to its customers, who are the members of the Society. It also carries on its business in the shop, which is situated in Rajapalayam, which is a municipality. The Tamil Nadu Shops and Establishments Act, 1947 applies to the city of Madras and all the municipalities constituted under the Madras District Municipalities Act 1920, in addition it applies, to the whole State of Tamil Nadu also. No provision is pointed out to us that the shop run by a Co-operative Society is exempted from the provisions of the Tamil Nadu Shops and Establishments Act 1947. When once it is held that the shop run by the appellant-society is a shop, within the meaning of the Tamil Nadu Shops and Establishments Act, and even otherwise, it being a shop, the employment therein falls within the purview of the Part I of the Schedule as amended by the State Government. It is seen in the notice issued under Section 11(2) of the Act that the employees working in the shop of the appellant-society were demanding regular monthly salary in a particular scale. That was refused on the ground that there would be heavy financial liability on the Society. The order in this regard dated January 6, 1994, is reproduced at. page 7 of the Additional typed set of papers, which is as follows:-
“Copy of G.O. ‘(MS) No. 3 Co-operation, Food and Consumer Protection Department dated January 6, 1994.
Abstract.
Co-operation – Public Distribution System village Fair Price Shop Salesmen Enhancement-bf Salary of Salesman -Order issued.
1. G.O. (MS) No. 372, Co-operation Food and Consumer Protection dated May 19, 1993.
2. G.O. (MS) No. 571, Co-operation, Food and Consumer Protection dated September 15, 1993.
ORDER
The Committee constituted for stream-lining the cadre strength, pay scales, etc., in respect of Primary Agricultural Co-operative Banks had made 54-recommendations. One of the recommendations of this Committee is that the Salesmen running the Fair Price shops should be treated as regular staff of the Primary Agricultural Co-operative Banks and given Monthly scale of pay. This recommendations had not been accepted by the Government because of the huge financial implication. The Government have however,” decided to increase the consolidated salary of Rs.600/- per month now drawn by the salesman of the Fair Price shops run by certain Co-operatives, to Rs.750/ per month with effect from April 1, 1994.
2. They accordingly direct that the consolidated salary of salesmen of fair price shops run by the Primary Agricultural Co-operative Banks and other Co-operatives, such as Cooperative Wholesale Stores, Primary Co-operatives Stores, Co-operative Marketing Societies, large sized multi-purpose Societies (Lamps), Farmers Service Co-operative Societies, etc., whose consolidated salary does not exceed Rs.600/- per month, be increased to Rs.750/- (Rupees Seven hundred and fifty only) per month with effect from April 1, 1994.
3. The Registrar of Co-operative Societies is requested to issue instructions to all concerned to ensure that all cooperatives mentioned in para 2 above implement the above order.
4. This order issues with the concurrence of the Finance Department – vide its U.O. No. 6879/is/P/93 dated December 29, 1993.
Sd/- Secretary to Government
That being so, the employees working in the shop of the appellant-society, do not fall within the cadres of employment created in the co-operative society in as much as they do not have the regular scale of pay. They work only as wage earners. If the employees working in the shop of a co-operative society work on a particular scale of pay, the matter would be quite different, as in such case, it does not become necessary for fixing minimum wages. Therefore, we are of the view, that the contentions of the appellant that the employees working in the shop run by a cooperative society do not fall within Part I of the Schedule to the Act and that the shop in question is not a commercial establishment and that it is bound by the notification issued by the State Government, and therefore, the provisions of the Minimum Wages Act cannot be applied, are without merit and the same are accordingly re-jected,as the employment in the shop establishment of the Co-operative Society in question is not included or is not covered by the cadre or category of services under the Co- operative Society with a scale of pay attached to it carrying regular annual increments etc.,
4. The learned counsel for the appellant placed reliance on a decision of a learned single Judge of this Court reported in Catholic Centre. Staff Union v. Archbishop of Madras 1962-II-LLJ-115. It is not possible to apply the said decision to the facts of the present case. In that case the question for consideration was as to whether the Catholic Centre Staff Union was a shop or not. On the basis of the facts stated therein, it was held that it was not a shop or commercial establishment, nor an establishment, nor a residential hotel or restaurant. It was also further pointed out therein that the membership of the Catholic Centre was restricted to persons who could be admitted to such membership by the management and that the admission to the hostel was further restricted at the discretion of the management and the Rules of the Catholic Centre provided for such restricted admission and the activities of a Catholic Centre did not amount to commercial establishment. That being so, the same cannot be applied to the facts of the present case, in which the appellant society, admittedly, is running a shop and selling articles to its members, who are consumers.
5. In P. Ramachandran v, Kolacherry Ksheerolpadaka Sahakarna Sangam 1993-182 FJR 485, the learned single judge of the Kerala High Court held that the petitioners therein were governed by the Notification under the Minimum Wages Act 1948, dated April 26, 1978 and not by Kerala Shops and Establishments Act and that Section 5 of the Minimum Wages Act contemplated periodical revisions of fixation of minimum wages, and in view of the sky-rocketing rise in prices and inflation, such periodical revision was absolutely necessary. Therefore, the notification dated June 26, 1978 was issued taking into account the prevailing conditions in 1978. Hence it was held that the wage structure contained in the Notification dated June 26, 1978 had no bearing to the things prevailing at the later stage and the Government was right in revising the wages by a notification. That being so, it is not possible to hold that the said decision has a relevance to the case on hand.
6. For the reasons stated above, the Writ Appeal fails and same is dismissed.