* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL. R.C. NO. 117 OF 2008 % 31-12-2009 # Peeta Venkateswarlu. ..… Petitioner Vs. $ The Assistant Commissioner of Labour-I, Guntur, Guntur District and another …Respondents ! Counsel for the Petitioner : Sri Peeta Raman ^Counsel for the Respondent Nos.1 and 3: Public Prosecutor Counsel for Respondent No.2: Sri V. N. Anagani. <Gist : >Head Note: ?Cases Referred: HON’BLE SRI JUSTICE B.CHANDRA KUMAR Crl.R.C.No. 117 of 2008 Date: 31-12-2009 Between: Peeta Venkateswarlu Petitioner and The Assistant commissioner of Labour-I, Guntur, Guntur District and another. Respondents. HON’BLE SRI JUSTICE B.CHANDRA KUMAR Crl.R.C.No. 117 of 2008 ORDER: This Revision Case has been filed challenging the order, dated 18-10-2007 in Crl.M.P.No.1324 of 2007 on the file of the II Additional Munsif Magistrate, Repalle, wherein and whereby the petition filed by the petitioner herein was dismissed. 2. The brief facts of the case are as follows: The petitioner herein is the Secretary of the second respondent- Nagaram Primary Agricultural Co-operative Society (hereinafter referred to as ‘second respondent-society’). Initially he was appointed as Secretary vide proceedings No.43(2)79/RHO/PS, dated 18-07-1979 and was posted at Rajavolu PACS, Repalle, Guntur District. Later on, he was allotted to Primary Agricultural Co-operative Society, Dhulipudi (for short ‘Dhulipudi PACS’). His services were regularized as a permanent employee. However, on some allegations, he was placed under suspension by the Dhulipudi PACS. The petitioner challenged his suspension order by filing W.P.No.16303 of 1999 and subsequently, he had withdrawn the writ petition on 17.04.2001 on the assurance given by the Divisional Cooperative Officer to consider his case. The Divisional Cooperative Officer instructed the person-in-charge of the then Dhulipudi PACS to reinstate the petitioner into service and accordingly the Dhulipudi PACS passed a resolution on 26.05.2001 directing the petitioner to join into duty. The petitioner made a representation to the person-in- charge to pay subsistence allowance from the date of his suspension till his reinstatement into service i.e., from 01-05-1997 to 31-05-2001. The Dhulipudi PACS unanimously resolved on 31-05-2001 to pay arrears of salary to the petitioner from the funds of Dhulipudi PACS for the period of his suspension and the same was informed to the District Cooperative Central Bank, Guntur. As per the resolution, dated 31-05- 2001, the petitioner is entitled to receive subsistence allowance for 49 months @ Rs.6,080/- per month. The petitioner was paid Rs.20,000/- on 12-08-1999 and Rs.10,000/- and Rs.66,528/- on 06-06-2001 and thus received a total amount of Rs.96,528/- only and the Dhulipudi PACS is still due to pay an amount of Rs.1,99,824/- to the petitioner towards balance of subsistence allowance. Since the said amount was not paid to the petitioner, he filed W.P.No.18998 of 2003 seeking a direction to the said society to pay the balance of subsistence allowance and the same was disposed of on 09.09.2004 giving liberty to the petitioner to file an application before the concerned authority within a period of two weeks. Then the petitioner filed an application in S.A. Case No.1 of 2005 before the first respondent herein, which is the authority under the Andhra Pradesh Shops & Establishments Act, 1988 (for short ‘Act’). While the said application was pending, as per clauses (i) to (v) & (viii) of sub-section 3 of Section 15-A of the A.P. Cooperative Societies Act, 1964, the District Collector (Cooperation) passed orders merging Dhulipudi PACS with the second respondent- society. Since Dhulipudi PACS was merged with the second respondent-society, the person-in-charge of the second respondent- society filed counter on 23.08.2005 in the said application admitting its liability to pay the remaining subsistence allowance to the petitioner. The second respondent-society also addressed a letter to the Divisional Cooperative Officer, Tenali on 25.08.2005 admitting its liability to pay the subsistence allowance to the petitioner. Thereafter, the first respondent passed orders on 20.10.2005 directing the respondent therein to pay the due amount to the petitioner. No appeal has been filed challenging the said order and therefore, the order, dated 20.10.2005 became final. However, in spite of above direction, the second respondent-society has not implemented the said order. The petitioner had sent applications to the first respondent on 09.12.2006 and 29.03.2007 and the first respondent issued a show cause notice to the second respondent-society calling for its explanation as to why the order, dated 20.10.2005, was not implemented till then. Then the first respondent herein filed an application under Section 54 (4) (b) of the Act, in Crl.M.P.No.1324 of 2007 before the II Additional Munsif Magistrate, Repalle, requesting to recover the due amount as if it were fine imposed by him as Magistrate, but, the said application was dismissed on 18.10.2007 with an observation that the order, dated 20.10.2005 in S.A. Case No.1 of 2005 is void ab initio. Challenging the same, the present Revision Case has been filed. 3. The learned counsel for the petitioner Sri Peeta Raman submitted that for the recovery of claims for deductions from wages or delay in payment of wages etc., the procedure prescribed under sub-clause (b) of Sub-section 4 of Section 51 of the Shops and Establishments Act, 1988 envisages that the same have to be recovered as if fine under Section 421 Cr.P.C. 4. It is further submitted that the lower Court seems to be under the mistaken impression that it was dealing with an execution petition under Section 47 C.P.C., and had ignored that it was exercising the powers of a Magistrate under Section 421 of Cr.P.C. It is vehemently argued that the lower Court ought to have followed the procedure prescribed under Section 421 of Cr.P.C., and that when no specific procedure has been prescribed in any special Act, the procedure prescribed under Cr.P.C. has to be followed. 5. It is further argued that admittedly no appeal has been filed challenging the order, dated 20.10.2005 and that the learned Magistrate passed order as if an appellate authority. It is also submitted that since the petitioner is an effected party he filed the revision. It is also submitted that after merger, the second respondent is liable to pay all the dues that were to be paid by the Dhulipudi PACS. It is further submitted that the learned Magistrate has lost sight of the fact that after the Dhulipudi PACS has been merged with the second respondent–society, the second respondent-society had filed counter admitting its liability to pay the subsistence allowance. It is further submitted that the claim of the petitioner was rejected only on the ground that he was in a position of Manager having control over the affairs of the society. It is further submitted that as per Section 31(1)(a) of the A.P. Co-operative Societies Act, 1964 to entrust the management of the affairs of the Society, the general body of the society shall constitute a committee and it is clear that in no way the petitioner is in the position of management of the society. It is also submitted that the lower Court lost sight of the fact that true meaning of the employee in a position of manager having control over the affairs of the establishment has wider connotation and therefore Section 73(1) (a) of the Shops and Establishments Act has no application to the facts of this case. It is also argued that all the employees even if drawing more than Rs.1600/- per month cannot be treated as the employees in a position of Manager having control over the affairs of the establishment. It is also submitted that there is no pleading or evidence on behalf of the respondent in this regard. 6. The learned counsel for the second respondent-society submits that the second respondent-society has not filed any counter admitting its liability and that the counter is also not in the prescribed proforma and the person-in-charge nowhere stated that he filed counter. It is further submitted that the order passed by the authority is void ab initio since it was passed in the absence of the second respondent-society. It is further submitted that the merger took place on 25.07.2005 and the Award was passed on 20.10.2005 and that the second respondent was not impleaded as party in S.A. Case No.1 of 2005. It is further submitted that the petitioner is entitled to the subsistence allowance till 26.05.2001, but he claimed till 31.05.2001. It is also argued that the petitioner was drawing more than Rs.1600/- per month, hence he can be treated as an employee having control and management over the second respondent society. 7. The learned counsel for the petitioner, in reply, submitted that the petitioner, in fact, joined the duty on 31-05-2001 and therefore, he is entitled to claim subsistence allowance till 31-05-2001. It is further submitted that the second respondent-society never denied the factum of filing of the counter and that merely because the counter is not in the prescribed proforma, it cannot be said that the second respondent- society has not filed any counter. It is further submitted that the merger took place on 25.07.2005 and by the moment the merger has taken place, it is deemed that the second respondent-society stepped into the shoes of Dhulipudi PACS and since then, the second respondent- society is liable to pay all the dues of the Dhulipudi PACS. Therefore, merely because the order has been passed on 20.10.2005, the second respondent cannot escape its liability. It is also submitted that merely because an employee is drawing more than Rs.1000/- per month, he cannot be treated as an employee having control over the management of the society. 8. The points that arise for consideration are; 1. Whether Dhulipudi PACS stands merged with the second respondent society and whether it becomes non-existing dead entity?. 2. Whether in the facts and circumstances, the procedure prescribed for recovery of fine is applicable or whether the procedure prescribed under CPC is applicable? 3. Whether the petition filed by the petitioner is not maintainable since the second respondent society is not being represented by its Secretary? 9. POINT No.1: The learned Magistrate appears to have lost sight of the fact that as per the provisions of the Section 15-A (2)(iv) of the A.P. Cooperative Societies Act, the second respondent-society in which the then Dhulipudi PACS has been merged filed the counter in S.A. Case No.1 of 2005 on 23.08.2005 admitting its liability to pay subsistence allowance to the petitioner. Immediately after filing its counter, the chair person of the second respondent-society had sent a letter to the Divisional Co-operative society, Tenali on 25-08-2005 with a request either to allow him to pay subsistence allowance to the petitioner and sought necessary direction. The operative portion of the letter, dated 25.08.2005 as follows: “The authority u/s. 48 of A.P.S.E. Act, 1988 orally instructed the Chairperson of Nagaram PACS that it is the mandatory to pay the subsistence allowance to the secretary for suspension period and if it not paid as per the provision of Sec.48 of A.P.S.E. Act, 1988 the Chairperson will be responsible to pay the higher amount as directed by the Court with penalty. Further, I submitted that the case was came to final stage and the learned authority u/s. 48 of the A.P.S.E. Act, 1988 may be given judgment accordingly. Therefore I request the Divl. Co.op. Officer, Tenali to accord permission to pay the subsistence allowance the secretary of erstwhile Dhulipudi PACS now merged with Nagaram PACS or I may be issued suitable Direction in this regard.” 10. As seen from the contents of the order of the learned Magistrate, the learned Magistrate observed that Dhulipudi PACS has been no more in existence and it is a dead legal personality as on the date of order passed by the Assistant Commissioner of labour-I, Guntur on 20.10.2005 and therefore the order passed by the Assistant Commissioner of Labour-I, Guntur is null and void. 11. It is not in dispute that by virtue of the orders passed by the Collector (Cooperation), Guntur District, dated 25.07.2005 Dhulipudi PACS stands merged with Nagaram PACS with effect from 25.07.2005. As seen from the counter filed by the second respondent before the first respondent, the second respondent itself mentioned that Dhulipudi PACS stands merged with Nagaram PACS on 25.07.2005 and all the staff of the Dhulipudi society came under the control of Chair Person Nagaram PACS from 25.07.2005 and the only point raised by the second respondent in its counter is that there was a restriction on the expenditure to be incurred towards salaries which cannot be more than 30% of the gross profit or 2% of the working capital of the society and that there are accumulated losses of Rs.70.00 lakhs to the society and due to the financial constraints it is not possible to pay the subsistence allowance to the petitioner herein without prior approval of the District Cooperative Officer, Guntur. The order passed by the first respondent authority shows that after filing of the counter the second respondent failed to attend before the said authority and therefore it was set ex parte on 13.09.2005. Therefore, it is not correct to say that the first respondent passed the order in the absence of the second respondent society or behind its back. Therefore, the second respondent cannot say that it did not file counter before the first respondent authority. A copy of the letter dated 25.08.2005 addressed by the second respondent to the Divisional Cooperative Society, Tenali, also shows that the second respondent sought permission of the authorities to pay the arrears to the petitioner. Thus, it has to be seen that the second respondent never claimed before the first respondent that Dhulipudi PACS became a dead legal entity or that it is no more in existence and therefore the second respondent is not liable to pay the arrears to the petitioner. When the second respondent itself had not taken such a plea before the first respondent authority, the learned Magistrate is not justified in dealing with an issue which was not raised before the first respondent authority. It is settled law that new plea cannot be allowed to be raised for the first time in execution proceedings, even in civil proceedings. 12. Coming to the effect of merger, the relevant provisions of the A.P. Cooperative Societies Act are as follows. 15-A(2) The Registrar may, after having considered the matter in the light of any suggestions or objections which may be received by him within the period specified in sub- section (1) and after making if necessary, such modification in the proposal as he may deem fit, make an order and publish it in the prescribed manner; (iii) the area added to the area of operation of the society shall be deemed to have been transferred to such society to which it is added; (iv) the assets of such amalgamated or divided society shall stand transferred to and its liabilities shall devolve on, the society with which it is amalgamated and all immovable properties located in the area transferred shall be deemed to be transferred to the society to which the area is transferred; (vii) it shall be competent for the Registrar to allot, by order, employees of such societies which are amalgamated or divided to any society or societies; and (viii) notwithdtanding anything in this Act or in any other law, or in any contract, award or any other instrument for the time being in force, the provisions of the order of the Registrar under sub-sections (2) and (3) shall be binding on all societies and their members, depositors, creditors, employees and other persons having any rights, assets or liabilities in relation to all or any of the concerned societies. 15-A(7) Notwithstanding anything in the Transfer of Property Act, 1882 (Central Act 4 of 1882) or the Registration Act, 1908 (Central Act 16 of 1908) an order issued under this section shall be sufficient conveyance to transfer the assets and liabilities of the society or societies covered by any order passed under sub-section (2) of this section. 13. A reading of the above provisions makes it clear that the assets and liabilities of the society shall stand transferred to the society with which it is amalgamated. Thus, all the liabilities shall be deemed to have been transferred to the society with which the society is merged. Admittedly, all the employees of Dhulipudi PACS have become the employees of Nagaram PACS. Clause (viii) of sub-section (3) of Section 15-A of the A.P. Co-operative Societies Act also makes it clear that the award passed against the society as on the date of merger shall be binding on the society with which it is merged. Sub-section (7) of Section 15-A also makes it clear that all the assets and liabilities of the society covered by an order passed under sub-section 2 of Section 15-A shall stand transferred to the society with which it is merged. Therefore, merely because the cause title of the second respondent is not amended after the merger of the Dhulipudi PACS with Nagaram PACS, the order would not become void. In the light of the above provisions, the observation of the learned Magistrate that Dhulipudi PACS became non-existent or dead entity is nothing but against the above referred legal provisions and therefore improper and illegal. 14. ISSUE NO.3: The learned Magistrate next observed that it is the Secretary who had to represent the Society under byelaw 24-A of the Primary Agricultural Co-operative Societies bylaws and since the proceedings are not initiated against the Secretary, PACS, such proceedings are irregular. Byelaw 24-A of the Primary Agricultural Cooperative Society gives an authority to the Paid Secretary to institute the suits on behalf of the Primary Agricultural Co-operative Society and he is also authorized to represent the society in any suit filed against such society. First of all no such plea was taken by the second respondent society before the first respondent authority. It has to be seen that here the petitioner is no other than the Secretary of the society. When the petitioner himself is filing a petition, I think there is no other way for the petitioner to file a petition against the second respondent society except through its chair person, more over when no such plea was taken before the first respondent authority and I think no such plea can be taken at the stage of enforcing the order passed by the first respondent. 15. ISSUE NO.2: It appears that the first respondent has passed orders under Section 51 of the A.P. Shops and Establishments Act, 1988. An appeal shall lie against such order to the appellate authority under Section 53 of the A.P. Shops and Establishments Act. Admittedly, no such appeal has been filed. Therefore, the order passed by the first respondent became final. The first respondent filed an application under Section 51(4)(b) of the A.P. Shops and Establishments Act for recovery of the amount which was directed to be paid under Section 51(2) of the Act. Thus, the Magistrate was exercising powers under Clause (b) of sub-section (4) of Section 51 of the Act. Accordingly, the said petition was registered as Crl.M.P. No.1324 of 2007. The learned Magistrate was not dealing with the execution petition under Section 47 CPC. He was exercising powers of a Magistrate to recover the said amount as if it were a fine imposed by such Magistrate. Section 51(4) (b) of the Act is as follows. “51. Claims arising out of deductions from wages or delay in payment of wages etc., and penalty for malicious or vexatious claims:-- (4) Any amount directed to be paid under this section may be recovered— (a) if the authority is a Magistrate, by the authority as if it were a fine imposed by him as Magistrate; and (b) if the authority is not a Magistrate, by any Magistrate to whom the authority makes an application in this behalf, as if it were a fine imposed by such Magistrate.” 16. Section 421 Cr.P.C. is as follows. S.421. Warrant for levy of fine-(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. 17. Admittedly, no specific procedure has been prescribed for the recovery of amount in the A.P. Shops and Establishments Act, 1988. When no specific procedure has been prescribed in any Act, Regulation, Rule or Byelaw under which any sentence or penalty of fine may be imposed Section 25 of the General Clauses Act will apply. In case the special Act, Regulation, Rule or bye-law although provided for penalty of a fine, but does not contain a provision in relation to imprisonment in default, or to the issue or execution of the warrants for the levy of fines imposed thereunder, the provisions of Section 25 of the General Clauses Act along with the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants of fines, shall apply. Therefore, the defaulter may be deemed to be an offender for the purpose of Section 25 of the General Clauses Act. Therefore, the lower Court ought to have dealt with the procedure prescribed under Section 421 of Cr.P.C., and not under Section 47 CPC. It has to be seen that byelaw 24-A of the Primary Agricultural Cooperative Societies also refers the institution of suit by the society or representing any suit filed against the society. It does not refer to the proceedings of recovery of arrears as if fine under Section 51 (4)(b) of the A.P. Shops and Establishments Act read with Section 421 Cr.P.C. Therefore, it cannot be said that 24-A of the above referred bye-law apply to the given situation. Since it does not appear to be a proceeding under Section 47 of CPC the lower Court cannot claim that it can decide all the points that can be raised in execution proceedings as if it were E.P. proceedings. The lower Court did not consider that it was strictly enforcing an order under Section 421 Cr.P.C for recovery of amount as if it were fine. Therefore, the approach of lower Court appears to be wrong and improper and also illegal. The very purpose of treating the claims under Section 51 of the Act as fine and contemplating to recover the same as if fine under Section 421 Cr.P.C shows the intention of the legislature that the said amounts have to be recovered urgently as if fine and the complication of execution procedure under CPC is avoided. The learned Magistrate failed to understand the very said purpose. 18. The third point that arises for consideration is whether the petitioner is an officer of the society and whether he could not have initiated any proceedings before the Assistant Commissioner of Labour. First of all this point was also not raised by the second respondent society before the first respondent authority. It is true that Section 73 of the A.P. Shops and Establishments Act envisages that nothing in the said Act shall apply to employees in any establishment who is in a position of management and having control over the affairs of the establishment, whose average monthly wages exceed Rs.1600/- . Now it has to be seen whether the