JUDGMENT
P.P. Bopanna, J.
1. These petitions are disposed of by a common order since a common question arises for consideration in all these petitions.
2. The petitioner is the proprietor of a cinema theatre known as “Sujatha Theatre” and he has challenged the correctness and the validity of the orders made by the Labour Court, Bangalore, on certain applications made by the workmen employed by him under Section 33-C(2) of the Industrial Disputes Act and certain awards made by the very same Labour Court on references made by the State Government referring the disputes raised by his workmen touching the validity of the termination of their services. Though these petitions were filed in the year 1980, they were not disposed of even after a lapse of nearly eight years on account of some confusion in the submissions made by the learned advocate for the petitioner that these matters had been referred to a Division Bench. When these petitions were posted before the Division Bench, the Division Bench after looking into the records found that there was no order of reference by this Court referring these writ petitions to a Division Bench and accordingly by its orders dated 14th August, 1984, the Division Bench directed the office to place the records before the Hon’ble Chief Justice for securing appropriate orders for posting the same before a learned single Judge. Accordingly, these matters have come up before this Court for final disposal.
3. The principal contention taken by the petitioner in these petitions is that the Labour Court had no jurisdiction either to entertain the applications under Section 33-C(2) of the industrial Disputes Act or to adjudicate the references made by the State Government under the provisions of Section 10(1)(c) of the Act.
4. Mr. H.R. Venkataramanaiah learned counsel for the petitioner, relied on the recent decision of the Supreme Court in Krishna District Co-operative Marketing Society Ltd., Vijayawada v. N. V. Purnachandra Rao, 1987 (2) LLJ 365, in support of his contention that the question of jurisdiction is concluded by that decision of the Supreme Court and, therefore, following the aforesaid decision, this Court must take the view that the authority constituted under the Karnataka Shops and Commercial Establishments Act, 1961 (in short “the Karnataka Act”), is the proper and only forum for adjudication of the disputes between the petitioner and his workmen and not the Labour Court. According to learned counsel, the theatre in question, being an establishment, as defined under section 2(e) of the Karnataka Act, the dispute between the petitioner and his workmen in regard to their conditions of service or the termination of service is a dispute which has to be adjudicated under the provisions of Section 39 of the Karnataka Act and Section 39(7) confers an exclusive jurisdiction to the workmen to obtain the reliefs that they had claimed in this case before the Labour Court, and hence the Labour Court was wrong in entertaining the applications and the references under the relevant provisions of the Industrial Disputes Act. He also submitted that the Karnataka Act is a special Act and the provisions of the special Act should, therefore, prevail over the provisions of the Industrial Disputes Act which is a general Act. He further submitted that regard being had to the relevant entries in the Second Schedule to the Constitution, the Karnataka Act being a later Act and having received the assent of the President, the provisions of the Karnataka Act should prevail over the provisions of the Industrial Disputes Act, though it is a Central Act in terms of Article 254 of the Constitution.
5. In order to appreciate this contention, the relevant provisions of the Karnataka Act should be considered first as also the provisions of the Industrial Disputes Act. In the light of the provisions of Section 2(e) and Section 3(2)(i) and Chapters 2, 4, 5 and 6, there could be no doubt that the provisions of the Karnataka Act confer certain special rights on the workmen who come within the meaning of the word “employee under that Act and, therefore, those provisions in so far as they relate to conditions of service of the workmen should override the provisions of the Industrial Disputes Act dealing with the conditions of service of the same workmen who are also workmen under the Industrial Disputes Act. But the provisions of Section 35 of the Karnataka Act make it clear that if a workman covered under the Karnataka Act is entitled to larger benefits than what he could claim under the Karnataka Act, then he could avail himself of the larger benefits by resorting to the provisions of the other Acts which confer such larger benefits. Section 35 of the Karnataka Act reads as under:
“35. 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 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”
6. In the face of this provision of Section 39(7), on which learned counsel for the petitioner has placed reliance, should be considered. Both Sections 34 and 39 of the Karnataka Act come under Chapter IX of the Act which deals with miscellaneous provisions. Section 34 deals with the maintenance of registers and records and display of notices under the Karnataka Act. I have already excerpted Section 35 in para 5 above. Section 36 provides that no suit, prosecution or other legal proceedings shall lie against the State Government or any officer of the State Government for anything which is in good faith done or intended to be done under this Act. Section 38 deals with the power of the State Government to suspend the provisions of the Act during fairs and festivals. Section 39 deals with the right of the employer to remove or dismiss an employee. It also confers certain protection to the employees as could be presently seen when I go to the other sub-sections of Section 39. Relevant sections for the purpose of these petitions are Section 39(1), (3) and (7). Under Section 39(1), no employer shall remove or dismiss an employee who has put in service under him continuously for a period of not less than six months, except for a reasonable cause and unless and until one month’s previous notice or pay in lieu thereof has been given to him.
Section 39(3) provides that:
“Where an employee has been removed or dismissed without reasonable cause or without proof of misconduct, the employee shall, where the employer does not agree to reinstate him, be entitled to such compensation as the appellate authority may determine, provided that such compensation shall not exceed an amount calculated at one month’s pay for every year of service subject, in any case, to the maximum of six months pay”
Section 39(7) provides that:
“If under any other law or under the terms of an award, agreement or contract of service, any employee is entitled to a longer period of notice or to more favourable benefits than are provided in Sub-section (1) or Sub-section (3), the provisions of the said sub-sections shall nave effect as if such period of notice and such benefits had been enacted in this Act.”
7. Mr Venkataramanaiah contended that if Section 39(7) is read with the provisions of Section 25-J(ii) of the Industrial Disputes Act, the intendment of the Legislature becomes clear, that is to say, that any dispute touching the dismissal of an employee or removal of an employee who is covered by the Karnataka Act has to be adjudicated by the authority constituted under the Karnataka Act and not before the forum prescribed under the Industrial Disputes Act. He relied on the following words in Section 39(7), namely:
“the provisions of the said sub-section shall have effect as if such period of notice and such benefits had been enacted in this Act.”
8. If Section 39 has stood by itself without the provisions of Section 35 of the Karnataka Act, there was some scope for learned counsel to contend that Section 39(7) provides a special forum for the workmen covered under the Act. But the language of Section 35 is clear and in unmistakable terms it provides an alternative forum for the workmen to approach the Courts constituted under the Industrial Disputes Act if it is established that he is also a workman covered under the Industrial Disputes Act. Indisputably, the workmen in these cases are workmen covered under the Industrial Disputes Act as the petitioner is running an industry within the meaning of Section 2(j) of the Industrial Disputes Act, and, therefore, it is unnecessary for me to go into the various decisions cited by learned counsel for both sides. However, the decision of the Supreme Court on which Mr. Venkataramanaiah relied should be considered in order to appreciate the true scope of the decision. That was a case where the learned Single Judge of the Andhra Pradesh High Court had taken the view that in view of the provisions of Section 40(1) and (3) of the Andhra Pradesh Shops and Establishments Act, the dispute touching the retrenchment of workmen covered by that Act has to be adjudicated by the authority constituted under that Act and the Labour Court has no jurisdiction to entertain the said dispute and that the validity of retrenchment should be decided on the basis of the provisions of Section 40(1) and (3) of that Act and not on the basis of Chapter V-A of the Industrial Disputes Act. That view was disapproved by the Division Bench of the Andhra Pradesh High Court in the appeal preferred by the workmen. The Division Bench took the view that though the forum for adjudication is the authority constituted under the Andhra Pradesh Act, the law that should be applied for the determination of the validity of the retrenchment is the provisions of Chapter V-A of the Industrial Disputes Act and not the provisions of Section 40(1) and (3) of the Andhra Pradesh Act. This view of the Division Bench was affirmed by the Supreme Court in the aforesaid decision. Venkataramaniah, J., speaking for the Court, observed as follows:
“The result of the above discussion is that if the employees are ‘workmen’ and the management is an ‘industry’ as defined in the Central Act and the action taken by the management amounts to ‘retrenchment’, then the rights and liabilities of the parties are governed by the provisions of Chapter V-A of the Central Act and the said rights and liabilities may be adjudicated upon and enforced in proceedings before the authorities under Section 41(1) and Section 41(3) of the State Act.”
9. The Supreme Court also considered the merits of the contention that the State Act which was a later Act and which had received the assent of the President should prevail over the provisions of Chapter V-A of the Central Act. The Supreme Court observed as under:
“We shall now proceed to consider the merits of the contention that the State Act which is a later Act and which has received the assent of the President should prevail over the provisions of Chapter V-A of the Central Act. The above contention is based on Article 254(a) of the Constitution and the argument is that the provisions of Section 40 which deal with termination of service in a shop or an establishment contained in the State Act which is enacted by the State Legislature in exercise of its powers under entry 22 of List III of: the Seventh Schedule to the Constitution being repugnant to the provisions contained in Chapter V-A of the Central Act which is an earlier law also traceable to entry 22 of the List III of the Seventh Schedule to the Constitution should prevail as the assent of the President has been given to the State Act. It is true that the State Act is a later Act and it has received the assent of the President but the question is whether there is any such repugnancy between the two laws as to make the provisions,of the Central Act relating to retrenchment ineffective in the State of Andhra Pradesh. It is seen that the State Act does not contain any express provision making the provisions relating to retrenchment in the Central Act ineffective in so far as Andhra Pradesh is concerned. We shall then have to consider whether there is any implied repugnancy between the two laws. Chapter V-A of the Central Act which is the earlier law deals with cases arising out of lay-off and retrenchment. Section 25-J of the Central Act deals with the effect of the provisions of Chapter V.-A on other laws inconsistent with that Chapter. Sub-section (2) of Section 25-J is quite emphatic about the supremacy of, the provisions relating to the rights and liabilities arising out of lay-off and retrenchment. These are special provisions and they do not apply to all kinds of termination of services. Section 40 of the State Act deals generally with termination of service which may be the result of misconduct, closure, transfer of establishment, etc. If there is a conflict between the special provisions contained in an earlier law dealing with retrenchment and the general provisions contained in a later law generally dealing with terminations of service, the existence of repugnancy between the two laws cannot be easily presumed. In Maxwell on the interpretation of Statutes, 12th edition, at page 196, it is observed thus:
“Now if anything be certain it is this”, said the Earl of Selborne L.C. in The Vera Cruz, (1884)10 AC 59, at page 68, “that where there are general, words in a later Act capable of reasonable and sensible application with extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so”. In a later case, Viscount Haldane said: “We are bound to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the Kind I have referred to”.
10. These observations of the Supreme Court do not in any way advance the case of the petitioner since there is no provision in the Andhra Pradesh Act similar to the provisions of Section 35 of the Karnataka Act. Even assuming such a provision is there, the effect of such provision did not arise for consideration by the Supreme Court in the aforesaid case. In the circumstances, that decision of the Supreme Court does not lay down any proposition of law which would support the contention of the petitioner.
11. In my view, the case of the petitioners has to be decided in the light of the provisions of Section 35 read with Section 39(7) of the Karnataka Act. Section 39(7) of the Karnataka Act is the provision which enables the workmen covered by that Act to claim reliefs which are covered by Section 39(1) and (3) of the, Karnataka act. That is all the limited scope of Section 39(7). But it does not expressly or impliedly act in derogation of the provisions of Section 35 of the Karnataka Act which confer a right on the workman to approach the forum available under the Industrial Disputes Act if he is a workman who is covered by that Act. I have earlier observed that there is no dispute that the respondent-workmen are covered by the provisions of the Industrial Disputes Act and, therefore, their right to approach the Labour Court is not expressly or impliedly taken away by the provisions of Section 39(7) of the Karnataka Act or the provisions of Section 25-J(ii) of the Industrial Disputes Act.
12. As observed by me in Harugeri Urban Co-operative Credit Bank Ltd. v. State of Karnataka, (1980) 57 FJR 262 (Kar.), it cannot be said that the Karnataka Act has created a new right, which has no existence apart from the statute creating it and the statute creating the right at the same time has prescribed a particular method of enforcing it. I had relied on the decision of the House of Lords in PYX Granite Co. v. Ministry of Housing, (1959) 3 All ER 1, at page 16, in support of my view. The relevant portion of the speech of the House of Lords reads as:
“Where a statute creates a new right which has no existence apart from the statute creating it, and the statute creating the right at the same time prescribes a particular method of enforcing it, then, in the words of Lord Waston in Barraclough v. Brown, (1987) AC at page 622, the right and the remedy are given uno flatu, and the one cannot be dissociated from the other’. As Lord Hershell put in the same case, (1987) AC at page 620, the party asserting the right cannot ‘claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right”.
13. Section 35 of the Karnataka Act expressly provides an alternative remedy for resolving the disputes raised by the workman and that alternative remedy is found in the provisions of the Industrial Disputes Act and, therefore, there is no substance in the contention that the Labour Court had no jurisdiction to entertain the applications and references in question. For these reasons, the challenge to the jurisdiction of the Labour Court to entertain the applications and to adjudicate the references fails.
14. On merits, the records disclose that in almost all the cases the petitioner djd not context the proceedings; either he did not adduce evidence in support of his objections or he remained absent and unrepresented on the date the case was set down for evidence.
15. Learned counsel for the petitioner submitted that the petitioner had left the entire management of his business to his manager and that manager did not take the necessary steps to safeguard his interest. It is not possible to accept this plea on behalf of the petitioner since the petitioner had been properly served with notices of the proceeding before the Labour Court and he had engaged his counsel before the Labour Court and if counsel had not performed his duties satisfactorily, the petitioner has to proceed against his counsel who had been entrusted with the brief.
16. Now, coming to individual petitions, W.P No. 5678 of 1981 is filed against the order granting wages for the period of suspension. The plea of the petitioner is that he had terminated the services of the workman and, therefore, the workman was not put on suspension and the claim for wages for the period of suspension is not maintainable. No evidence was produced before the Labour Court to prove that the services of the workman were terminated by the petitioner. In the circumstances, the order of the Labour Court does not call for interference.
17. W.P. No. 386 of 1980 relates to the workman, Krishnaraju. The Labour Court directed reinstatement of the workman with continuity of service and back wages and all other consequential benefits. This award was made on 11th August, 1977, and, therefore, at this distance of time, it is not proper to direct the reinstatement of this workman with continuity of service. Therefore, the proper order to make is to modify the award in so far it relates to reinstatement with continuity of service and award a lump sum amount to the workman in full and final settlement of his claim. If I were to take into consideration the increase in wages pursuant to the minimum wage notification made in 1977 and the subsequent notifications, the amount that may become due to the workman would exceed Rs. 1 lakh. But, the calculation of back wages at that rate would put the petitioner out of business and that would result in total deprivation of any amount due to the workman. In the circumstances, the proper order to make is to calculate the back wages at the rate of Rs. 200 per mensem from the date of termination up to this date and direct the petitioner to pay the said amount in two equal instalments. The first instalment shall become payable on or before 15th December, 1988. The second instalment on or before 15th March, 1989. Accordingly, the workman, Krishnaraju, would be entitled to a sum of Rs. 30,000 less any amount already paid by virtue of the interim order made by this Court in two equal instalments in full and final settlement of all his claims against the petitioner. Likewise, the workman, Bakshu, in W.P. No. 384 of 1980 will be paid the same amount in two equal instalments less the amounts already paid to him by virtue of the interim order made by this Court. The same order would cover the case of workman, Rangaswamy, in W.P.No. 376 of 1980 and the workman, Narasimha, in W.P. No. 370 of 1980. In view of this modification of the impugned awards, the orders of the Labour Court on the application made by these four workmen under Section 33-C(2) of the Industrial Disputes Act are quashed since those orders were made for computation of back wages due to the workmen consequent on the awards made by the Labour Court earlier in their favour. In W.P. No. 1123 of 1980, the workman, Ramu, is no more. Therefore, his legal representatives are entitled to the benefit of the award as modified. They are not brought on record. But, all the same, it is open to this Court to make an order directing the petitioner to pay the legal representatives of Ramu the same amount that is payable to the other workmen, viz., Narasimha, Bakshu, Krishnaraju and Rangaswamy. Consequently, the order made under Section 33-C(2) of the Industrial Disputes Act in W.P. No. 336 of 1980 is quashed. Similar order in W.P. No. 15915 of 1979, connected with W.P. No. 5717 of 1981, and also in W.P No. 17423 of 1979, connected with W.P. No. 5722 of 1981, are also quashed.
18. In the result, these writ petitions are partly allowed and the impugned awards of the Labour Court are modified as indicated above and the impugned orders of the Labour Court made under Section 33-C(2) of the Industrial Disputes Act except in W.P. No. 5678 of 1981 are quashed. It is further made clear that these workmen would be entitled to all the statutory benefits, viz., the provident fund contributions standing in their account and also gratuity for every completed year of service to be reckoned from the date of entry into service up to date as if they had remained in service. The workman would be entitled to exemption from the payment of income-tax, if any, in terms of the decision of the Supreme Court reported in Sundaram Motors Pvt. Ltd. v. Ameerjan, 1985 (2) LLJ 22.
19. The petitioner shall comply with the order of this Court within eight weeks from the date of receipt of this order, otherwise the first instalment due to the workmen will carry interest at the rate of 12% from the date of this order up to the date of realisation and likewise the second instalment which becomes due on 15th March, 1989. Parties to bear their own costs in all these petitions.