IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.12629 of 2001 The Secretary The Pennington Committee 9, Library Street Srivilliputtur – 626 125 Virudhunagar District. .. Petitioner Vs. 1. The Commissioner of Labour Labour Welfare Board Thenampettai, Chennai-6. 2. The Assistant Inspector of Labour Srivilliputtur – 626 125 Virudhunagar District. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the first respondent made in TNSE Application No.1 of 1999, dated 24.5.2001 and quash the same. For Petitioner : Mr.S.Silambanan Senior Counsel for Mr.N.Umapathi For Respondents: Mr.P.Subramanian Additional Govt. Pleader ORDER The petitioner is the Secretary of the Pennington Committee. The petitioner/Committee is running a library called Pennington Public Library in Srivilliputtur. They have also constructed an auditorium and in that building they are also maintaining books and magazines. Shops were also constructed and let out for rent, which is known as Pennington Market. The said club is maintained by collecting subscriptions from its members. The District Collector is the Ex- Officio President of the Committee. The Committee has been in https://hcservices.ecourts.gov.in/hcservices/ existence for the last 125 years. For the purpose of maintaining their activities and for the administration of the Committee and its property, they are engaging employees. 2. On 27.3.1999, the Assistant Labour Officer, Srivilliputhur sent an inspection report stating that after his inspection made on 24.3.1999, he found that the Committee is not following the provisions of the Tamil Nadu Shops and Establishment Act, 1947 (for brevity, "the Shops Act") as well as the National Festival and Holidays Act and Minimum Wages Act, 1948. According to the Assistant Inspector of Labour, the activities of the petitioner/Committee will fall under the term "establishment" as defined under Section 2(6) of the Shops Act. 3. As soon as the note was served on the petitioner/committee they filed an application before the Commissioner of Labour/first respondent herein. The first respondent, under Section 51 of the Shops Act, being empowered to go into the question as to whether the provisions of the Act are applicable to any establishment, entertained the petitioner's application as TNSE Application No.1 of 1999. After hearing the petitioner, he passed the impugned order holding that the provisions of the Shops Act will apply to the petitioner/Committee. 4. In his order, the first respondent referred to the report sent by the Assistant Inspector of Labour holding that the petitioner/Committee is owning a premises in Door No.9, Thiruvenkata Annaigal Street, where the library and the administrative office of the Committee are functioning and that the petitioner/Committee has engaged 17 employees. The petitioner/Committee also owns a market and a commercial complex where the shops are let out for rent. Even for usage of the Library, the members will have to pay subscriptions and also fee for admission. 5. The arguments made by the petitioner were dealt with threadbare by the Commissioner of Labour and he came to the conclusion that it is also an "establishment" within the meaning of Section 2(6) of the Shops Act. Strong reliance was placed by the petitioner/Committee upon the judgment of this Court in Catholic Centre Staff Union v. Archbishop of Madras, 1962 II LLJ 115. In that case, the employees attached to the Catholic Centre formed an association and claimed certain benefits from the management of the Catholic Centre. They also moved an application before the Commissioner of Labour seeking for a declaration that the provisions of the Shops Act will apply to the Catholic Centre. The contention was that the Catholic Centre is having a club with billiards and indoor games, reading room, library, hostel for students and auditorium, similar to that of the petitioner herein. But the Commissioner refused to cover the provisions of the Shops Act to the said Centre and held that the Shops Act will not apply to the employees engaged by the Catholic Centre. The Union filed the writ petition. This Court rejecting the writ petition held that the institution will not be covered by the definition of Commercial https://hcservices.ecourts.gov.in/hcservices/ Establishment or an establishment or a residential hostel or restaurant. However, in the case on hand, the authority after noting the said judgment held that the facts found in Catholic Centre case will not apply to the case of the petitioner/ Committee and the activities carried on by the petitioner/Committee are commercial in nature and therefore, the reliance placed upon the judgment was negatived. 6. Mr.S.Silambanan, learned Senior Counsel also placed reliance upon the very same judgment in support of his contention. 7. A perusal of the said judgment shows that this Court negatived the claim of the workmen that the definition of the term "industry" and the definition of the term "establishment" is not the same and that merely because the provisions of the Industrial Disputes Act are applicable or that an institution is an "industry" within the meaning of the Industrial Disputes Act, that itself will not cover the institution within the purview of the Shops Act. In essence the Court held that what would apply to an undertaking under the Industrial Disputes Act will not automatically apply to an undertaking to which Shops Act will apply. It was contended before the Court that the policy behind the two enactments was the same, viz., betterment of workmen, including improvement of the conditions of services. But, however, this Court took a very narrow view to hold that the object of the Shops Act was to provide regulation of conditions of work in shops, commercial establishments, restaurants, theatres and other establishments and for certain other purposes and therefore, it held that the Catholic Centre will not come under any one of the heads. This Court also made a distinction that the membership of the Catholic Centre is restricted to the persons who should be admitted to such membership by the management and even the admission to hostel is restricted at the discretion of the management and that the Rules of the Catholic Centre also provide for restricted admission. 8. Subsequent to the judgment cited by the learned Counsel, a question arose whether the provisions of the Industrial Disputes Act, more particularly Section 2A of the Industrial Disputes Act are in pari materia with Section 41 of the Shops Act. The Full Bench of this Court vide judgment in The Management of Safire Theatre v. The Additional Commissioner for Workmen's Compensation, Madras, AIR 1978 Madras 14 : 1977 II LLJ 312 (Mad) held that the provisions are pari materia and the workmen covered have the choice of choosing the forum. The said judgment was confirmed by the Supreme Court in Nirchiliya v. Management of Safire Theatre and another, 1991 I LLJ 111 (SC). 9. Thereafter, a further question came up for consideration whether the rights under Chapter VA of the Industrial Disputes Act can be urged before the forum of the Shops Act. The Division Bench of this Court vide judgment in T.N.Chandra v. South India Corporation (Agencies) Limited and another, 1992 I LLJ 739 held that an employee, who has filed an appeal under Section 41 of the Shops Act, can even https://hcservices.ecourts.gov.in/hcservices/ urge grounds about the rights flowing from the Industrial Disputes Act before the authority under the Shops Act. 10. In the present case, under the impugned order, the authority has not only considered the facts of the case, but also distinguished the decision relied on by the petitioner. Therefore, there is no ground made out to interfere with the impugned order. 11. It must also be further noted that in making a decision of this nature under Section 51 of the Shops Act, the Commissioner ought to have heard the workmen. In the present case since he has held that the provisions of the Shops Act will apply, it may not cause any prejudice to the workmen, but when the management has filed the present writ petition, it ought to have made the workmen also as a party to the writ petition so that their interest is also safeguarded. 12. The Supreme Court in two decisions has held that in the matter of seeking for exemption from the provisions of the Labour enactments, the workers are necessary and proper party. In State of Tamil Nadu v. K.Sabanayagam, [1998] 1 SCC 318 the Supreme Court held that in the matter of exemptions under the Payment of Bonus Act, 1965, the workers are necessary and proper party. 13. Similarly, while considering the scope of Section 75 of the Employees State Insurance Act, 1948 in which an ESI Court can decide the application of the ESI Act to an establishment, the Supreme Court in Fertilizers and Chemicals Travancore Ltd. v. Regional Director, ESIC and others, [2009] 9 SCC 485 held that no ESI Court can decide any matter without the workmen being made party either in a representative capacity or individual capacity. 14. In the present case, the petitioner/Committee had not made the workmen as party to the writ petition. Therefore, both on merits as well as on the ground of non-joinder of parties, this writ petition stands dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sasi To: 1. The Commissioner of Labour Labour Welfare Board Thenampettai, Chennai-6. https://hcservices.ecourts.gov.in/hcservices/ 2. The Assistant Inspector of Labour Srivilliputtur – 626 125 Virudhunagar District. W.P.No.12629 of 2001 TRM (CO) RH (5.4.10) https://hcservices.ecourts.gov.in/hcservices/