*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 2412 of 2006 % 9-04-2008 # Mohammad Jani Basha …Petitioner and $ Mrs. Mitra Tabacco Products, Lease holders of langar Cigars Company, rep. by its Managing partner, Gopuram Street, Ranganaikulapet, Nellore. & another …Respondents ! COUNSEL FOR PETITIONER : Sri M.PITCHAIAH ^ COUNSEL FOR RESPONDENTS: G.P. for Labour < Gist: > Head Note: ? CITATIONS: 1) 1987 LAB I.C. 642 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 2412 of 2006 Between: Mohammad Jani Basha, S/o. Mohammad jabbar, Muslim, R/o. of Gopuram Street, Ranganaikula Pet, Nellore. ... PETITIONER AND 1) Mrs. Mitra Tabacco Products, Lease holders of langar Cigars Company, rep. by its Managing partner, Gopuram Street, Ranganaikulapet, Nellore. 2 The Presiding Officer, Labour Court, Guntur. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, an order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the Award In ID.No.278/2000 dt. 4.07.2005 of the 2nd respondent as notified in G.O.Rt.No.1704 dt. 23.8.2005 of Labour Employment Training and factories (Lab.I) Department Government of A.P., and quash the same as illegal, contrary to law, unjust perverse and without jurisdiction in so far as it relates to denying the relief of continuity of service, back wages and all other attendant benefits by ordering 1st respondent to pay to the petitioner back-wages with continuity of service. Counsel for the Petitioner: MR.M.PITCHAIAH Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : O R D E R: Petitioner filed I.D.No.278 of 2000, in the Labour Court, Guntur, under Section 2-A(2) of the Industrial Disputes Act (for short “the ID Act”). He stated that he was employed as a clerk in the 1st respondent company, in the year 1973, but was removed from service, with effect from 1.5.1998, in contravention of Section of the Act. The 1st respondent opposed the I.D. and stated that the petitioner retired from service on 15.4.1998, on receiving compensation of Rs.11,275/-, and that he received another sum of Rs.5,467/-, when the company was under the management of M/s. MGM Saheb Brothers and MGM Agencies. A plea, as to the power of Labour Court, under Section 2-A (2) of the ID Act, also raised, based on Section 31(2) of the Beedi and Cigar Workers (Conditions of Employment) Act 1966 (for short “the 1966 Act”). Through its award, dated 4.7.2005, the Labour Court held that the petitioner left the service voluntarily in April 1998, or had resigned. In addition to that, the Labour Court held that the I.D. was not maintainable, in view of Section 31 of the 1966 Act. The petitioner challenges the award of the Labour Court. Sri M. Pitchaiah, learned counsel for the petitioner, submits that the Labour Court was not clear in its finding, as to the nature of cessation of the petitioner from service of the 1st respondent. He submits that virtually no discussion was undertaken by the Labour Court, on this important issue. He further submits that, by itself, Section 31 of the 1966 Act does not bar the proceedings under the ID Act, and at the most, it may constitute an additional remedy. He places reliance upon the judgment rendered by a Larger Bench of this court in A.P.S.W.I. CO-OPERATIVE SOCIETY LTD. v. LABOUR COURT, HYDERABAD[1]. Sri V. Srinivas, learned counsel for the 1st respondent, on the other hand, submits that the petitioner approached the court, nearly two years after the alleged cessation, and it was not clear as to the manner in which the employment has ceased. He submits that Section 31 of the 1966 Act provides a comprehensive remedy, and thereby, relief under Section 2-A (2) of the ID Act, which is general in nature, is impliedly barred. The Labour Court framed the following issues for its consideration: i) Whether the petitioner resigned from the service with effect from 15.4.1998? ii) Whether Section 31 (2) of Beedi and Cigar Workers (Conditions of Employment) Act 1966 excludes operation of Section 2-A(2) of the I.D. Act? Since the consideration of the first question would arise, if only a negative answer ensued on the second question, the Labour Court ought to have answered that question first. While answering the first question, it held that the petitioner had either voluntarily left the service, or resigned, and thereafter, answered the second question, in the affirmative. Such a course is totally impermissible. It is no doubt true that the 1966 Act deals with the service conditions of the workers of the establishments, undertaking manufacture of beedies and cigars, and Section 31 thereof, provides remedy to the aggrieved workers. However, there is nothing in that Section, which bars the remedy under Section 2-A (2) of I.D. Act. The principle that a special enactment would exclude the operation of a general one, does not apply in the facts and circumstances of the present case. Further, bar of a remedy under a general enactment must be clear and unequivocal. Even where a provision in one enactment bars the remedy under the other, it was held that exclusion of remedy cannot be inferred, unless an equally efficacious one is provided for under the other enactment. Further, a Larger Bench of this court in A.P.S.W.I. CO-OPERATIVE SOCIETY LTD’s case1 held that the remedy provided for under Sections 40 and 41 of the A.P. Shops and Establishments Act does not bar the one, under Section 2-A (2) of the I.D. Act. Therefore, the view taken by the Labour Court that Section 31 (2) of the 1966 Act, bars the remedy under Section 2-A (2) of the ID Act, is incorrect. The petitioner specifically pleaded that he was removed from service, with effect from 1.5.1998. The burden to prove the fact that he was employed earlier, and that he was removed on a perticular day, squarely rests upon the petitioner. Further, the management of the 1st respondent company changed hands with quick succession. The petitioner was not certain as to whether the agency, that was in the management of the company as on the date of the institution of the I.D., was his employer at all. Even if it is to be assumed that the mere change of management would not affect the rights of employees, much would depend upon the terms of takeover, or transfer of the management. The finding recorded by the Labour Court about the nature of cessation of the petitioner from employment, is far from satisfactory. It reads as under: “Therefore, I hold that the petitioner either left the service of the respondent voluntarily in April 1998 or resigned the job.” The same deserves to be set aside. The result is that the matter needs to be adjudicated afresh, by the Labour Court. Since it has already been held that the I.D. under Section 2-A (2) of the I.D. Act, instituted by the petitioner is maintainable, the Labour Court shall also endeavour to determine the date on which the 1st respondent assumed the management of the industry, where the petitioner was employed, and the nature of relationship of the petitioner vis-à-vis the 1st respondent. Hence, the writ petition is allowed, setting aside the Award dated 4.7.2005, and the matter is remanded to the Labour Court for fresh disposal. It shall be open to the parties to place such material, as they intend, before the Labour Court. There shall be no order as to costs. _______________ 9th April 2008 Note: L.R. copies be marked. (B/o) PAN [1] 1987 LAB I.C. 642