Ramesh Pai vs State of Kerala and Others

K. Sreedharan, J.—Writ Petitioner in O.P. 2581/88 is the Appellant. He was an employee under the third Respondent, Dhanalakshmi Bank Ltd. He questioned the order of dismissed invoking the provisions of Section 18 of the Kerala Shops and Commercial Establishments Act, 1960, hereinafter referred, to as the Act, before the second Respondent. Second Respondent refused to entertain his appeal u/s 18 of the said Act on the ground that scheduled commercial banks are exempted from the purview of Act by virtue of S.R.O. 501/82. The said stand taken by the second Respondent was challenged before the learned Single Judge without success. Hence the appeal.

S.R.O. 501/82 issued by the Kerala Government reads:

In exercise of the powers conferred by Section 5 of the Kerala Shops and Commercial Establishments Act, 1960 (34 of 1960) the Government of Kerala, being satisfied that public interest so requires, hereby exempt the scheduled commercial banks from all the provisions of the said Act. (emphasis added).

The power to issue exemption u/s 5 is, it is settled, legislative in character. The power that was exercised by the Government in issuing the above mentioned S.R.O. was in exercise of the power of conditional legislation. Reference may be made to the decision of Supreme Court in Basant Kumar Sarkar and Others Vs. Eagle Rolling Mills Ltd. and Others, . In this case the validity of Section 1(3) of the State Insurance Act, 1948 came up for consideration. The provision is:

The Act shall come into force on such date or dates as the Central Government may, by notification in the official gazette appoint, and different dates may be appointed for different provisions of this Act and for different States or for different parts thereof.

The argument was that the power given to the Central Government to apply the provisions of the Act by notification confers on the Central Government absolute discretion, the exercise of which is not guided by any legislative provision and is, therefore, invalid. Court took the view that Section 1(3) of the Act is not an illustration of delegated legislation, but it is one properly described as conditional legislation. It was observed:

In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees'' State Insurance Corporation should be established. It is obvious that a scheme of this kind, though very beneficient, could not be introduced in the whole of the country all at once. Such beneficial measures which need careful ''experimentation have some times to be adopted by stages and in different phases, and so inevitably,'' the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government.

Similarly in the instant case Section 5 of the Act allows the State Government in public interest to exempt any establishment from the provisions of the Act. This power is so conferred with Government because it would have been impossible for the legislature to decide what all types of establishments are to be exempted. The power thus conferred on the State Government is nothing but conditional legislation. The Government in the exercise of its powers u/s 5 of the Act is not Subject to the rules of natural justice any more than is the legislature itself. Nor is the procedural requirement of hearing is implied in the exercise of the legislative power since no such hearing is expressly prescribed. In public interest State Government have decided to exempt scheduled commercial banks from the ambit of the Act.

Section 5 of the Act gives power to State Government to issue notification exempting certain establishments from the purview of the Act not only for public interest but also on circumstances which would be just and proper having regard to the nature and capacity of the establishment. When the State Government, in exercise of this power, issues a notification, it is not to be interfered with by this Court unless very strong reasons are established.

The main argument advanced by the learned Counsel is that the Notification is violative of Article 14 of the Constitution of India. As to how it is violative of Article 14 is not made clear. According to him, since his only remedy to challenge the order of dismissal is taken away by the exemption, the notification is arbitrary and hence violative of Article 14 of the Constitution. We find precious little in that argument. The State Government while issuing the notification has taken note of the rights of employees in all scheduled commercial banks. Employees of scheduled commercial banks can be treated to be a class by themselves. All persons belonging to that class are treated alike and taken out of the purview of the Act. This is so done in public interest. It has not been shown that the Government was actuated by mala fides in issuing the notification. No other argument was advanced to substantiate the contention that the said notification was invalid Identical issue was considered by a learned Single Judge of this Court in Anantha Prabhu v. State of Kerala 1991 (2) KLT 38 Case No. 48. The learned Judge took the view that the power to assess the circumstances which justified the issue of the notification must be the exclusive function of the Government and the power exercised by the Government is virtually subjective in nature. Hypertechnical weighing of the evidence and counter evidence in tile matter of subjective satisfaction of the. Government to issue the notification will be an act of overstepping the jurisdiction of this Court under Article 226 of the Constitution. We are in respectful agreement with the above observation made by the learned Single Judge.

Writ Petitioner, Appellant herein, was an employee of a scheduled commercial bank. As per the notification quoted earlier in this judgment the bank is not an establishment coming under the Act. So the appellate authority acted well within its jurisdiction when it held that the appeal filed by the Petitioner was not maintainable. In this view, the Appellant is not entitled to any of the reliefs asked for in the writ petition. Result therefore is, the appeal fails.

Appeal is dismissed. No costs.