HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 21827 OF 2004 DATED 12th October, 2011. BETWEEN A.P. Cooperative Banks Association, Sahakar Bhavan, Opp.YMCA, Narayanaguda, Hyderabad, rep. by its Executive Director P.V.Brahmam …..Petitioner and The Asst. Commissioner of Labour, Circle. III & Authority U/S.48(1) of APSE Act, and ors. …..Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 21827 OF 2004 ORDER: Challenging the order of the second respondent in S.A.No.8 of 2001 dated 17.11.2004, confirming the order of the first respondent in S.E.No. 9 of 2001 dated 22.11.2003, the present Writ Petition is filed. Heard the learned Counsel for the petitioner, learned Government Pleader for Labour appearing for respondents 1 and 2 and the learned Counsel for respondent 3. The facts which are not in dispute, being admitted are as follows: The third respondent was appointed as a peon in the petitioner-association on 19.12.1967 when he was 17 years old. He had not possessed any educational qualifications and produced his date of birth certificate at the time of entry into service. His services were regularized with effect from 1.1.1970. While so, the petitioner-association, after its Board resolution, communicated to the third respondent vide letter dated 31.3.2001 stating that his services are no longer required with effect from 1.4.2001 on the ground that he was aged about 65 years and completed 33 years of service. Questioning the said order, the third respondent invoked the provision under Section 48(1) of the A.P. Shops and Establishments Act, 1988 ( for short ‘the Act of 1988’) before the first respondent in S.E.No. 9 of 2001. In the process of adducing evidence, to prove their respective claims, the third respondent himself was examined asR.W.1 and Ex.R.1 was got marked on his behalf. On behalf of the third respondent, he himself was examined as AW.1 and Exs.A1 to A8 were got marked. The primary authority-first respondent, upon consideration of the evidence on record allowed the application filed by the third respondent directing the petitioner-association to reinstate the third respondent in service with immediate effect and pay him arrears of wages, if any, due and continue to adopt the pay scales which they had been following during his service period. Aggrieved by the same, the petitioner-association preferred an appeal in S.A.No. 8 of 2001 and the second respondent-appellate authority dismissed the appeal by order dated 17.11.2004 confirming the findings of the primary authority- first respondent. Hence the present Writ Petition. The learned Counsel for the petitioner-association, reiterating the contentions as was raised before the primary as well as lower appellate authorities, submitted that the petitioner-association is a registered association under the Societies Registration Act for the purpose of co- ordinating the activities of District Cooperative Central Banks and that it is neither a Government organization, nor a quasi-Government organization nor the matter of State Co-operative Bank, and as such, the application filed by the petitioner under Section 48(1) of the A.P. Shops and Establishment Act, 1988 and Rules made thereunder is not maintainable. Placing reliance on the judgment of the Apex Court in Public Prosecutors Vs. V.Chandra { 1980(1) APLJ, 71 } he submitted that since the petitioner-association is not open to public and running without profit motive, it does not come under the purview of ‘’ a shop or an establishment’ within in the meaning of the Act of 1988. He argued that the services of the third respondent were terminated, on his reaching the age of superannuation, on par with the government employees in as much as he had completed 33 years of service and aged about 65 years. Perused the case file thoroughly. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority. In B. C. Chaturvedi v. Union of India (1996)ILLJ1231SC the scope of judicial review was indicated by stating that review by the Court is of decision making process and where the findings of the disciplinary authority are based on some evidence, the Court or the Tribunal cannot re- appreciate the evidence and substitute its own finding. As observed in R. S. Saini v. State of Punjab (1999)IILLJ1415SC in paragraphs 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. In B.C. Chaturvedi v. Union of India (1996)ILLJ1231SC , it was observed at page 762 para 18 as under: “A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” Keeping in view the above settled legal principles, I shall now proceed to examine the case on hand to see whether the findings recorded by the lower authorities are justified in law and on facts. It is no longer res nova from the decisions of the Apex Court that the credit societies, Marketing societies, Cooperatives, producers or consumer societies are Industries. Undisputedly, the petitioner-society is a society constituted under the statute to co-ordinate, facilitate the work of AP State Cooperative Banks Limited, Co- operative Central Banks, and it is to promote and develop in Andhra Pradesh sound banking principles, practice and convention, besides other objectives. Therefore its activities are in connection with trade and business of cooperative banks, which is doing a banking business in the cooperate bank services. As such, as defined under Section 2(5) of the A.P. Shops and Establishments Act, the petitioner-association being registered as a society, as held by the Supreme Court supra, it comes under the provisions of the A.P. Shops and Establishments Act and consequently the first respondent-primary authority has jurisdiction to entertain the application filed by the third respondent-workman. In view of the judgment of the seven judge Constitution Bench of the Supreme Court in Bangalore Water Supply and Sewerage Board Vs.Rajappa (1979 LLN (1) 657), the judgments in the cases of Public Prosecutor Vs. Chandra (1980 (1) APLJ 71) and Writ Petition No. 2425 of 1974, dated 13.11.1975 have no application to the facts of the case. In Bangalore Water Supply case, it was held as under : “In Hospital Mazdoor Sabha case A. I. R. 1960 S. C. 610] (vide supra), the Court rejected, on concession, two possible limitations on the meaning of "industry" as defined in S. 2 (j) of the Act: firstly, that no activity can be an industry unless accompanied by a profit motive ; and secondly, that investment of capital is indispensable for treating an activity as an industry. The Court also rejected, on examination, the limitation that a quid pro quo for services rendered is necessary for bringing an activity within the terms of S. 2 (i ). If the absence of profit motive was immaterial, the activity, according to the Court, could not be excluded from S. 2 (j) merely because the person responsible for the conduct of the activity accepted no return and was actuated by philanthropic or charitable motives. The court ultimately drew a line at the point where the regal or sovereign activity of the government is undertaken and held that such activities, of the Government as have been pithily described by Lord Watson as " the primary and inalienable functions of a constitutional Government," could be stated negatively as falling outside the scope of S. 2 (j ). The judgment concludes with the summing up that, as a working principle, an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking within the meaning of 2 (J); that such an activity generally involves the co operation of the employer and the employees; that the activity must not be casual nor must it be for oneself nor for pleasure, but it must be organized or arranged in a manner in which trade or business is generally organized; and thus, the manner in which an activity is organized or arranged and the form and the effectiveness of the co-operation between the employer and employee for producing a desired result and for rendering of material services to the community become distinctive of activities falling within the terms of S. Seeds of many a later judgment were shown by these limitations which were carved out by the court in order to reduce the width of a definition which was earlier described as having been deliberately couched by the Legislature in words of the widest amplitude. These exceptions which the Court engrafted upon the definition of "industry" in s. 20') in order to give to the definition the merit of reasonableness, became in course of time as many categories of activities exempted from the operation of the definition clause. To an extent, it seems to me clear that though the decision in Hospital Mazdoor Sabha [a. I. K. . 1960 S. C. 610] (vide supra), that a Government run hospital was an industry proceeded upon the rejection of the test of noscitur a socio, it is this very principle which constitutes the rationale of the exceptions carved out by the Court. It was said that the principle of noscitur a sociis is applicable in cases of doubt and since the language of the definition admitted of no doubt, the principle had no application. But if the language was clear the definition had to be given the meaning which the words convey and there can be no scope for seeking exceptions. The contradiction, with great respect, is that the Court rejected the test of "association of words" while deciding whether the Government run hospital is an industry but accepted that very test while indicating which categories of activities would fall outside the definition. The question then is : If there is no doubt either as to the meaning of the words used by the legislature in S. 2 (J) or on the question that these are words of aplitude, what justification can one seek for diluting the concept of industry as envisaged by the Legislature ? On a careful consideration of the question I am of the opinion that Hospital mazdoor Sabha [a. I. R. 1960 S. C. 610) (vide supra), was correctly decided in so far as it held that the J. J. Group of hospitals was an industry but, respectfully, the same cannot be said in regard to the view of the Court certain activities ought to be treated as falling outside the definition clause.” Further, it was observed as under: “The case of the clubs, on the present definition, is weaker still; and not only do I consider that the definition squarely covers them, except to the limited extent indicated by brother Krishna Iyer, J. , in his judgment, but I see no justification for amending the law so as to exclude them from the operation of the industrial laws. The fact that the running of clubs is not a calling of the club or its managing committee, that the club has no existence apart from its members, that it exists for its members though occasionally strangers also take the benefit of its services and that even with the admission of guest the club remains a members' self-serving institution seems to me, with respect, not to touch the core of the problem. And the argument that the activity of the clubs cannot be described as trade or business or manufacture overlooks, with respect, that the true test can only be whether the activity is organized or arranged in a manner in which a trade or business is normally organized or arranged. I have already said enough on that question” The third respondent-workman is controlled by the petitioner-association and is being paid wages. Further, the benefit of the provident fund has been extended by the petitioner-association to the third respondent and contribution of the management has also been paid in favour of the third respondent to the Provident Fund authorities, which is evident from Ex.A.4 which reflects the employer and employee relationship. Coming to the next submission of the learned Counsel for the petitioner-association as regards the retirement age, it is to be seen that the only reason given by the petitioner-association is that the third respondent- workman has completed more than 33 years of service. There is no provision in the bye-laws of the petitioner- association stipulating for retirement after completion of 33 years of employment. The Executive Director of the petitioner-association was examined as R.W.1 who in his cross examination deposed that there was no prescribed retirement age in the petitioner-association as it is a voluntary organization, which is registered under the Societies Act. Further, from the evidence on record, it is clear that the petitioner-association at no point of time had asked the third respondent-workman in writing to produce his date of birth certificate. Even if the age of the third respondent by the time of joining at 17 years is taken into consideration, as on the date of filing of the application in the year 2001, he would have completed the age of 51 or 52 years by then. Even the petitioner-association in its evidence accepted that no retirement rules are applicable to its employees. The other objection raised by the petitioner-association is that the third respondent has no basic education and cannot even identify the addresses on any letters and therefore has to be terminated. The said objection cannot be sustainable merely because the employee who has been retained in service 33 years long service was found not suitable and useful after completing long length of 33 years of service. The learned Counsel for the petitioner-association submitted that the third respondent has taken the terminal benefits and thereby failed to protest the order of termination. As per documentary evidence at Ex.R.1 and Ex.A.6 it is not correct to allege that he has not protested. The contention that the petitioner-association being a private organization, payment of salary as per PRC does not arise and a direction thereto is illegal. Ex.A.5 reveals that the third respondent-workman was serving the management since 1967 and further he was given revised pay scales and D.A. on par with the Government employees vide Exs.A.6 and A.8. The primary authority while directing reinstatement of the third respondent- workman, ordered to pay him arrears of wages if any due and continue to pay scales which have been followed for all these years. Both the primary and appellate authorities have considered the matter in great detail and answered all the issues raised by both the parties appropriately, following the decisions of the Apex Court. Except reiterating the contentions as was raised before the primary as well as appellate authorities, the petitioner has not made any further contentions before this Court so as to adjudicate the same. For the foregoing reasons, I do not find any merit in the Writ Petition warranting interference by this Court. The Writ Petition is accordingly dismissed. There shall be no order as to costs. ---------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 12th October, 2011. Msnro