THE HONOURABLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.12979 of 1998 ORDER: This writ petition has been instituted by a former employee of Srinivasa Gas Agency, Vizianagaram District, calling in question the award passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D. No. 268 of 1993. The relevant facts are these: The writ petitioner joined the service of the 2nd respondent in November 1985 as a delivery boy. The nature of the job to be performed by him was to collect the filled in LPG cylinders from the godown/office of the 2nd respondent and deliver the same to the consumers who requisition such supplies. Upon delivery of the filled in cylinders to the consumer concerned, he has to obtain a delivery receipt and also the cost of the LPG, and bring back the same to the 2nd respondent’s office. While he remits the cash, he has to account for the delivery receipts and empty cylinders as well. He has worked till November 1992. But, however, on 24.11.1992, the petitioner was abruptly removed from service without any enquiry or without any process being initiated for any misconduct on his part. An allegation has been thrown against him that he has failed to deliver one empty gas cylinder on 11.10.1992. Since the termination of his services was brought about contrary to the procedure contemplated by the Andhra Pradesh Shops and Establishments Act, 1988, the petitioner has raised a dispute before the Assistant Commissioner of Labour, Visakhapatnam, which led to institution of I.D. No. 268 of 1993 before the Labour Court. The Labour Court after considering Ex.W1, the order of termination of the service of the writ petitioner came to the conclusion that the writ petitioner was removed from service for a misdemeanour alleged against him and that his termination has been brought about without conducting any domestic enquiry. Following the principle enunciated in Cooper Engineering case, an opportunity has been provided for an enquiry to be conducted into the alleged acts of misconduct of the petitioner before the Labour Court. Such an opportunity has been availed and management has examined two witnesses, but did not mark any document. The workman marked the termination order as Ex.W1 and the notice given to him by the management as Ex.W2. From Ex.W2, a specific act of misconduct has been alleged against the petitioner that he has failed to deliver an empty cylinder at the godown on 11.10.1992. The workman has stoutly disputed the allegation. He has submitted a detailed explanation pointing out that after delivering the cylinder to one of the consumers who is residing in a nearby village, when he has come back, the office hours are over and hence the office has been closed for him to deliver the empty cylinder. Hence, he has delivered the empty cylinder next day. This according to the petitioner does not amount to any deficiency much less a misconduct on his part. This explanation offered by the workman has been marked as Ex.W3. The Labour Court after considering the entire material has come to the conclusion that the evidence that has been brought forth by the 2nd respondent-management against the employee/workman does not inspire any confidence for it to hold that the misconduct is held established. However, the Labour Court had come to the conclusion that the provisions of the Industrial Disputes Act and in particular Section 25F thereof is not attracted to the employment in question of the workman with the 2nd respondent and hence the very institution of the industrial dispute before the Labour Court is faulted as the Labour Court does not have jurisdiction. Therefore, no relief has been accorded to the workman and the industrial dispute raised by him has been rejected. I have heard Sri T.S.Venkatramana, learned counsel for the petitioner and Sri Gudipati Venkateswara Rao, learned counsel for the 2nd respondent – management at great length. Sri Venkatramana would submit that the 2nd respondent answers the description of an establishment/shop as defined in the Andhra Pradesh Shops and Establishments Act, 1988, and hence the dispute raised before the Labour Court is not incompetent. The learned counsel would further submit that the termination of an employment of the writ petitioner was preceded by Ex.W2 notice alleging specifically an act of misconduct on his part of short delivery of one empty gas cylinder to the 2nd respondent on 11.10.1992. The Labour Court has rightly considered the entire material including the explanation offered by him, marked as Ex.W3. The learned counsel therefore submits that if the order of termination of employment has been brought about illegally as no further enquiry has been conducted into the allegation which has been disputed and denied by him, the Labour Court ought to have ordered for reinstatement of the petitioner back into service together with continuity of service and backwages. Insofar as the jurisdiction of the Labour Court is concerned, Sri T.S.Venkatramana, the learned counsel would place reliance upon the judgment rendered by a Full Bench of this Court in Andhra Pradesh Steel Wool Industries Cooperative Society Limited v. Labour Court, Hyderabad[1]. If we peruse the definition of the expression `establishment’ as defined in Section 2(10) of the Andhra Pradesh Shops & Establishments Act, 1988 (for short `the Act’), it becomes clear that any shop, restaurant, eating-house, residential hotel, lodging house, theatre or any place of public amusement or entertainment and including a commercial establishment and such other establishment as the Government may, by notification declare to be an establishment for the purposes of the Act, would answer the expression `establishment’. The 2nd respondent herein is an agency which is carrying on business in distribution of Liquefied Petroleum Gas (LPG), supplied by the bottling company in cylinder form. It receives the supplies from the bottling centers and supplies them in turn to the customers who have been authorized by the supplier to receive such supplies. Hence, the 2nd respondent is an establishment for the purposes of the Act. It had to account for the supplies and sales. In that process, it collects the delivery receipts from each of the customers. The supply of the LPG is a regulated exercise for variety of reasons including for the reason that the domestic supply of LPG is a heavily subsidized item by the government and therefore great care has got to be taken in the matter of it’s supplies. While, it may be true that short delivery of empty gas cylinder collected from the individual consumer/customer might amount to a misconduct, such an act on the part of the delivery boys has got to be examined with reference to the facts and circumstances narrated by them. In the instant case, the writ petitioner has alleged that he has affected the delivery of a filled in gas cylinder to one of the authorized consumers staying in a nearby village. He has collected the delivery receipt, price and the empty cylinder from the consumer. By the time he has returned to the godown/office of the 2nd respondent for re-depositing those items, the office/godown has been closed as the office hours are over. In those circumstances, explains the petitioner, that he could not deliver the empty gas cylinder on 11.10.1992 and instead he delivered the same on the very next working day. Therefore, the bona fides of the conduct of the petitioner will have to be examined from the standpoint of view of those facts and circumstances. He should have been afforded an opportunity to establish these facts. There is no material that has been brought forth by the 2nd respondent which can perhaps conclusively establish that that the failure to redeposit the empty gas cylinder was a malicious act on his part. It will also be appropriate in this context to notice that Section 47 of the Act prescribed the conditions precedent for termination of service of an employee and it had also provided for payment of service compensation for termination, retirement, resignation, disablement etc. Sub-section (1) of Section 47 of the Act made it clear that no employer shall without a reasonable cause, terminate the service of an employee who has been in continuous employment for a period of not less than six months without giving such an employee a notice of at least one month’s duration or wages in lieu thereof and in respect of an employee who has been in his employment continuously for the period for not less than one year, a service compensation amounting to 15 days average wages for each year and continuous employment shall also be paid. In the instant case, both these conditions have been breached by the 2nd respondent. If the explanation offered by the writ petitioner – employee is to be accepted, then there is no reasonable cause for his termination. If the distance between the consumer to whom the filled in cylinder has been delivered and from whom the empty cylinder has been collected on 11.10.1992, to the office/godown is such that and if he has been prevented by natural factors and not due to any deliberate act on his part, the writ petitioner could not have been faulted for delay in depositing the empty cylinder on 11.10.1992 itself. If the empty cylinder has been delivered on the very next working day by the employee concerned, his conduct becomes a bona fide conduct and does not amount to misconduct. For a bona fide conduct on the part of an employee, his services cannot be terminated because the same will not be reasonable to do so. Further one month’s notice or wages in lieu thereof have not been tendered to the writ petitioner. No service compensation has also been paid to him for each completed year of service at the time of termination. Therefore, the finding recorded by the Labour Court that the writ petitioner’s services have been illegally terminated by the 2nd respondent does not appear to be an unreasonable or perverse finding and on the other hand commends itself for acceptance. However, the Labour Court has denied granting relief to the petitioner on the ground that it does not have jurisdiction to entertain the claim. Section 48 of the Act enables the Chief Inspector to appoint any authority to hear and decide appeals arising out of termination of service of an employee under Section 47. Thereafter, the statute has provided for a second appeal and for that purpose Section 48(3) provides that a second appeal would lie to such authority as may be notified by the Government for the purpose of deciding appeals arising out of the decision of the appellate authority. The State Government has chosen the Labour Courts as the second appellate authority in terms of sub-section (3) of Section 48 of the Act. Therefore, the Labour Courts have been conferred power to entertain disputes arising out of termination of employees of shops and establishments. Further, a Full Bench of the High Court had occasion to consider as to whether an award passed by the Labour Court in a dispute concerning employees of the shops and establishment is valid or not, in Andhra Pradesh Steel Wool Industries Cooperative Society Limited’s case (supra 1) and the issue has been answered in para 20 in the following words: “On a harmonious construction of the provisions, we consider it would accord with the intention of the legislature if we hold that the object behind the provisions made in Sections 40 and 41 of the Shops Act was not to deprive the shop employee of a right or remedy available to him, but only to provide the additional forum for seeking speedy solution to the problem arising out of the termination of his service. We have not been shown any authority or constitutional bar against the State Legislature providing such an additional remedy in favour of the employee. The option is left with the shop employee who is aggrieved by the termination of his service. He may, at his choice and convenience, either pursue the remedy involving S. 2-A of the I.D.Act or approach the appellate authority (in case of necessity, the Labour Court also in Second Appeal). The apprehension that the availability of two forums for the employee to seek redressal of his grievance would lead to conflict of decisions is quite unwarranted. It is needless to say that the principles of constructive res judicata would operate in these fields also. Once on the culmination of the proceedings in one of the channels the decision becomes final under either of the enactments, that binds both the parties and the issue could not be allowed to be re-agitated in the proceedings in the other channel. To say that once any proceedings under S.2-A of the I.D.Act is set in motion the employee would forfeit the right to pursue his remedy under S.41 of the Shops Act also would be unjust and unwarranted, for the conciliation may fail and the Government may decline to refer the matter for adjudication to the Labour Court; and the employee would be left high and dry without having a door at which he could knock for justice. The fact that it is one and the same authority, the Labour Court, on a reference under S. 10(1) of the I.D.Act to adjudicate the matter; and also to dispose of the appeal filed under S.41(3) of the Shops Act, would not also be a justification for taking away one of the remedies provided by the Statute, for the reasons already stated.” Unfortunately, the Labour Court, had failed to notice the above legal principle enunciated by the Full Bench of the Andhra Pradesh High Court. Lest it would not have come to an erroneous conclusion that the Labour Court does not have jurisdiction to entertain the dispute raised by the petitioner-employee of shop/establishment. Then comes the question as to modulating the relief that has to be granted. The 2nd respondent – establishment also is not too big an establishment where large number of work force can be deployed. Particularly, in rural areas, the LPG gas cylinders will be distributed or supplied to not more than 500 consumers and consequently, the monthly turn over of the business would not warrant or compel employing large work force as delivery boys. Therefore, ordering for reinstatement of the writ petitioner back into service at this distance of time will cause more difficulty and inconvenience than anything. Keeping this factor in mind, the learned counsel for the 2nd respondent Sri Gudipati Venkateswara Rao submits that a reasonable amount of compensation may be awarded to the petitioner in lieu of reinstatement and other claims. Keeping in view the short period of employment which the writ petitioner had with the 2nd respondent, for about seven years, and since he has been kept out of employment for long period, when a suggestion has been made to consider paying the writ petitioner a sum of not less than Rs.50,000/- (Rupees fifty thousand only) as compensation in lieu of reinstatement and other claims, the said suggestion has been accepted. Hence, in lieu of reinstatement and other claims such as backwages or service compensation etc., the writ petitioner is liable to be paid a sum of RS.50,000/- (Rupees fifty thousand only). I, therefore, direct the 2nd respondent to pay Rs.50,000/- (Rupees fifty thousand only) on or before 3.8.2010 in full and final settlement of all claims of the writ petitioner. Hence, the writ petition is allowed to the extent indicated above. The award dated 11.12.1997 in ID No. 268 of 1993 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam is set aside, to that extent if declared that the Labour Court does not have jurisdiction. No costs. ______________________ NOOTY RAMAMOHANA RAO,J 02-07-2010 knk [1] 1987 Lab.I.C. 642