IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 1402 of 2008 BETWEEN: 1 Laxmi Kanth Sahu S/o Late Nandikeswara Sahu Varthaka Sangam, Shop No. A-14, Sarda Vallabhai Patel (Porna) Market, Visakhapatnam, 2 Godi Narasimha Chary s/o Late Appalachari, Vishaka Gold and Silver Merchant's Association having shop in D. No. 25-8-32, Vasantharao Street, Visakhapatnam. ... PETITIONERS AND 1 The Government of Andhra Pradesh rep by its Principal Secretary to Government (Labour, Employment, Training and Factories) Department A.P. Secretariat, Hyderabad. 2 The Commissioner of Labour, Government of Andhra Pradesh, Anjaiah Bhavan, RTC X Roads, Hyderabad. 3 The Deputy Commissioner of Labour, Akkayyapalem, Visakhapatnam, Visakhapatnam District 4 Sri George Thomas S/o poikayil Thomas George Managing Director of Trinethra Super Market Ltd., Regional Office Situated at D. No. 39-11-76/1, Opp: Birla Jn Murali nagar, Visakhapatnam, Visakhapatnam District. 5 Sri M. Mavuri Venkata Ramana S/o Satyanarayana, CMR Shopping Mall, D.No. 29-2-23, Opp: district Judge Court, Visakhapatnam, Visakhapatnam District. 6 Sri V. Dharmendra S/o Narayana Rao Managing Director of Kalanikethan Textiles and Jewellers Pvt. Limited, D.No.47-14- 11/A, Dwarakanagar, Visakhapatnam, Visakhapatnam District. 7 Sri Adapala Narayana Murthy S/o Nageswara Rao, Managing Director of ANR Shopping Mall, D.No.48-11-38, MVR Complex, Dwarakanagar, Visakhapatnam, Visakhapatnam District. 8 Sri Kishore Biyoni S/o Laxminarayana, Proprietor of Big Bazar, Station Road, Visakhapatnam, Visakhapatnam District ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring that the application of section 73(4) of A.P. shops and Establishment Act 1988 to only certain big shops and Malls like the nature of the respondents 4 to 8 as arbitrary, illegal, discriminatory and unconstitutional and set aside the same along with memo bearing no. 678/Lab(1)/2004-1, dated 22nd march 2005 of the Government of Andhra Pradesh (Labour, Employment Training & Factories (LAB.II) Department, Where under Instructions have been issued as to how exemption of the shops or Malls can be given under section 73(4) of the A.P. shops and Establishment Act along with; (i) G.O.Rt.No.1208 Labour, Employment, Training and Factories (Lab.II) dated 28th June, 2003, where under the 4th respondent Trinethra Super Market Limited, Hyderabad and its Branches in Twin cities and other places in the State are Exempt from the provisions of A.P. Shops and Establishment act; (ii) G.O.Rt.No.330, Labour, Employment, Training and Factories (Lab.II) dated 8th February, 2006, where under the 5th respondent Chandana Brothers and CMR shopping Mall, Visakhapatnam and its other branches in Hyderabad twin cities and other places in the State are exempt from the provisions of A.P. Shops and Establishment Act; (iii) G.O.Rt.No.2427, Labour, Employment, Training and Factories (Lab.II0 dated 15th November, 2006, where under the 6th respondent M/s. Kalanikethan Textiles and Jewellers Pvt, Ltd., Visakhapatnam and its other branches in Hyderabad twin Cities and other places in the state are exempt from the provisions of A.P. Shops and Establishment act; (iv) G.O.Rt.No.2496 Labour, Employment, Training and Factories (lab.II) dated 17th December 2005, where under the 7th respondent ANR shopping Mall, Visakhapatnam and its other branches and other places in the state are exempt from the provisions of A.P. Shops and Establishment Act. (v) G.O.Rt.No.2524 Labour, Employment, Training and Factories (Lab.II0 dated 21st December, 2005 where under the 8th respondent Big Bazar, Visakhapatnam and other places in the state are exempt from the provisions of A.P. shops and establishment act, as null and void and strike down section 73 of the A.P. shops and Establishments Act, 1988 or in the alternative direct the respondents 1 to 3 grant exemption to all categories of shops and Establishments of all categories and allow them to work on all 365 days in a year from 10 AM to 11PM in the night subject to common and uniform procedure as well as the conditions as may be imposed and to pass such other order or orders deemed fit and proper in the circumstances of the case. Counsel for the Petitioners: MR.N.RAVI PRASAD Counsel for the Respondents: GP FOR LABOUR MR. T. NIRANJAN REDDY MR. C.R. SRIDHARAN MR. S. NIRANJAN REDDY MR. M.S. SRINIVAS IYENGAR The Court made the following: ORDER: (per Hon’ble Sri Justice V. Eswaraiah) Petitioner No.1 is the President of Laxmi Prasanna Kirana Varthaka Sangham, Shop No.A-14 situated at Sardar Vallabhai Patel (porna) Market and Petitioner No.2 is the President of Visakha Gold and Silver Merchant’s Association having shop in D.No.25-8-32, Vasantharao Street, Visakhapatnam. 2. Learned counsel for the petitioners submits that the petitioners are the owners of the shops doing business in Kirana as well as in Gold and Silver and apart form that they are representing their respective associations. He further submits that on the applications received for grant of exemption, to keep open the shops and establishments for 365 days, from the provisions of Section 73(4) of the Andhra Pradesh Shops and Establishments Act, 1988 (for short ‘the Act’), the Government issued certain guidelines in its Memo.No.678/Lab.II(1)/2004-1 dated 22.03.2005. As per the said memo the organization seeking exemption must have at least 50 workmen or it must have minimum four branches and the working hours of the shop shall be from 10 AM to 10 PM under Section 7 of the Act. He further submits that the petitioners have no grievance with regard to the instructions stipulated in the said memo except requiring the concerned organization to have 50 workmen or four branches and also the working hours stipulated from 10 AM to 10 PM, as the small traders and petty shop owners generally open their shops from 8 AM onwards. 3. Learned counsel for the petitioners further submits that the petitioners consequently question the various exemption orders granted in favour of the unofficial respondents. However, during the course of the arguments, the learned counsel did not pursue the remedy to set aside the said exemption orders but requested for a direction to the official respondents to consider the new applications filed by the small traders/petty shop owners seeking grant of similar exemption by revising the conditions. He furthers submits that, in fact, the petitioners have also filed applications before the Government but the same have not been considered. 4. Counter has been filed stating that the applications filed by the petitioners are bereft of any material particulars such as, name and address of the shop, number of its employees and the nature of business carried on. Therefore, the said applications have been returned. 5. Learned Government Pleader for Labour appearing for the respondents 1 to 3 submits that if any proper application is filed, furnishing the particulars regarding the name and address of the shop, number of its employees and nature of business, to consider its case for exemption of the particular provisions of the Act, the same will be considered in accordance with law. 6. Under Section 73(4) of the Act it is open for the Government to exempt by issuing a notification in respect of any establishment or class of establishments or persons or classes of persons from all or any of the provisions of the Act, as per the conditions, as it may deem fit. It is stated that the Government is generally considering the cases of big establishments having more than 50 employees or having more than four branches treating it as a separate class and the small traders are not being encouraged. Learned counsel for the petitioners requests that the official respondents may be directed to take a similar policy decision in respect of small traders by imposing suitable conditions. 7. We are not inclined to express any opinion as it is for the Government to consider the representation of the small traders with regard to the desirability to exempt them from any of the provisions of the Act depending upon the nature of the business and keeping in view the public interest and the small traders. 8. Having regard to the facts and circumstances of the case, the petitioners are permitted to make a detailed applications furnishing the particulars with regard to the name and address of the shops, number of employees, the nature of business and the reasons for such exemption of the particular provisions of the Act. If any such applications are filed and received by the Government, the Government may call for the remarks from the Commissioner of Labour – the second respondent and his subordinates, and pass appropriate orders in accordance with law. The writ petition is accordingly disposed of. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J February 2, 2009 DSK