Supreme Court. She would place reliance on SPIC Pharmaceuticals Division v. Authority under Section

Order

This writ petition is filed questioning the order of the second appellate authority under the A.P. Shops and Establishments Act, 1988 in SEA 13 of 1998 dated 3.9.1999, in allowing the appeal and setting aside the order passed by the original authority appointed under Section 50 of the A.P. Shops and Establishments Act, 1988 in S.E.NO.13 of 1996 dated 21.4.1998. The 1st respondent herein was, hitherto, employed in the petitioner – company. It is the case of the petitioner that the 1st respondent was working as sales representative/professional service representative; and he resigned from service with effect from 1.6.1995 and stopped attending duty. The 1st respondent, however, filed S.E.13/1996 making a claim for Rs.1,09,745/- i.e., Rs.63,045/- towards service compensation, and Rs.46,700/- towards deemed service wages. The original authority, by his order in S.E.No.13/1996, held that the 1st respondent was an employee as defined under the provisions of Sales Promotion Employees (Conditions of Service) Act, 1976 and, therefore, the application filed by him under Section 51 of A.P. Shops and Establishments Act, 1988 was not maintainable. Aggrieved thereby, the 1st respondent carried the matter in appeal and the second appellate authority, by his order dated 3.9.1999 in S.A/13/1998, held that the provisions of the A.P. Shops and Establishments Act, 1988 were applicable, and the authority had jurisdiction to entertain the appeal. Placing reliance on Section 47(3) and (4) of the A.P. Shops and Establishments Act, 1988, the Second Appellate authority directed the petitioner herein to pay service compensation of Rs.63,694/- and benefits under Section 47(4) of the A.P. Shops and Establishments Act, 1988 upto

30.11.1998 i.e, till the end of the proceedings before him for Rs.1,71,738/-, in all Rs.2,35,432/-. Aggrieved thereby, the present writ petition.

Ms.G.Sudha, Learned Counsel for the petitioner, would submit that the 1st respondent, being a professional sales representative, was covered by the provisions of the Sales Promotion Employees (Conditions of Service) Act, 1976 and, as such, the provisions of the A.P. Shops and Establishments Act, 1988 had no application. She would further submit that, in any event, the 1st respondent was not entitled to be paid service compensation under Section 47(4) of the A.P. Shops and Establishments Act, 1988 as the said provision was struck down by a Full Bench of this Court and the Supreme Court. She would place reliance on SPIC Pharmaceuticals Division v. Authority under Section 48(1) of the A.P. Shops and Establishments Act, [1] 1988 , Srinivasa Resorts Limited, Hyderabad v. State of [2] A.P. and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Limited [3] . On the other hand Sri B.G.Ravinder Reddy, Learned Counsel for the 1st respondent , would contend that the authority the A.P. Shops and Establishments Act, 1988 had jurisdiction to entertain the appeal; the order passed by the 2nd appellate authority, in S.A/13/98 dated 3.9.1999, is much prior to the order of the Full Bench of this Court, in Srinivasa Resorts Ltd2, or the judgment of the Supreme Court, in Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union3; as such the judgments had no application; as has been held by the second appellate authority the petitioner had no resigned, but his services were terminated; he was out of employment from the year 1995; more than 27 years have elapsed since then; he has received the compensation as directed by the second appellate authority in the year 1999 itself; and no useful purpose would now be served in adjudicating the dispute on merits. With regards the first submission of Ms.G.Sudha, Learned Counsel for the petitioner, that the authority under the A.P. Shops and Establishment Act has no jurisdiction, it is necessary to note that the very same question arose for consideration of the Supreme Court in SPIC Pharmaceuticals Division and the Supreme Court, while holding that it was not deciding the issue, observed: “…… The High Court accepted that the Act which makes the provisions of the ID Act applicable providing remedy to sales promotion employees is a special enactment dealing with service conditions of sales promotion employees employed in the establishment engaged in pharmaceutical industries. The Shops Act deals with specific rights created under that Act and it has been indicated that these provisions provided for some more measures for protecting interest of the employees. They are beneficial in nature. The High Court held that the jurisdiction conferred under the Shops Act cannot be said to have been taken away in respect to enforcement of rights conferred under the Act. We think it is unnecessary to go into these broader issues. We find that the forums created under the ID Act, on the facts of the case can more effectively deal with the issues raised. It is not to be understood that we have said that the Appellate Authorities under the Shops Act do not have jurisdiction. We are not really deciding that issue as to whether there was exclusion of the jurisdiction of authorities under the Shops Act because it specifically provided that the forum under the ID Act can be approached. In the peculiar circumstances, therefore, we direct that the State Governments concerned i.e. Karnataka, Tamil Nadu and Maharashtra shall make reference to the appropriate forum under the ID Act within a month from today. The forum concerned shall make an effort to dispose of the reference to be made within three months from the date of receipt of the reference. If the respondent employees are entitled to any payment because of the pendency of the disputes, the same shall be paid within two months from today. We make it clear that we have not expressed any opinion on the merits of the case and the order for reference by the State Government is being made in view of the special features involved. Normally it is for the State Government to decide whether reference is to be made but in view of the conceded position by the learned counsel for the parties that the industrial disputes do exist, we direct the State Governments concerned to refer the dispute to the forum under the ID Act for adjudication as directed above………. (emphasis supplied) I see no reason, therefore, to accept the submission of the Learned Counsel that the authority under the A.P. Shops and Establishment Act lacked jurisdiction to entertain and adjudicate the claim made by the 1st respondent herein. It must, however, be noted that the Full Bench of this Court, in Srinivasa Resorts Limited2, struck down Sections 47(3) and (4) of the Act as unconstitutional; as amounting to unreasonable discrimination; and to be in violation of Article 14 of the Constitution of India. In appeal, the Supreme Court, in Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union3, upheld the order of the Full Bench. Section 47(3) and (4), whereunder the 1st respondent was directed to be paid Rs.1,71,738/-, has been held, both by the Full Bench of this Court and the Supreme Court, to be unconstitutional. The submission of Sri B.G.Ravinder Reddy, Learned Counsel for the 1st respondent, is that the order of the second appellate authority, in S.A.No.13/98 dated 3.9.1999, was prior to the judgments of the Full Bench of this Court and the Supreme Court; and, as such, has no application to orders passed, under the A.P. Shops and Establishment Act, prior thereto. This submission does not merit acceptance. Judgment of superior courts are not to be read as statutes or considered to only have prospective application. Superior courts only declare the law, and any such declaration operates from the date on which the statute was made and, unlike statutes, cannot be regarded as having only prospective application. The interpretation of a provision relates back to the date of the law itself, and cannot be prospective of the judgment. When the Court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. (Sarwan Kumar v. Madan Lal Aggarwal [4] ; Lily Thomas v. Union of [5] India ) Since the law declared, by the Full Bench of this Court and the Supreme Court, operates from the inception of the statute; and, consequent to the aforesaid judgments, Section 47(3) and (4) are unconstitutional; the aforesaid provisions must be deemed not to have been in existence from the inception i.e., the date on which these provisions were made. As a result thereof the order of the second appellate authority, in directing payment of service compensation to the first respondent, must be held to be illegal and void. The order of the second appellate authority, in S.A.13/98 dated 3.9.1999, to the limited extent the 1st respondent was directed to be paid service compensation of Rs.1,71,738/- must be and is, accordingly, set aside. It is no doubt true that more than 13 years have elapsed since the second appellate authority passed the order. Pendency of proceedings before this court, for a long duration, cannot by itself result in the order of the second appellate authority, under the provisions of the A.P. Shops and Establishment Act, being upheld more so when the said provision has itself been declared to be unconstitutional. The order of the second appellate authority, in S.A.13/1998 dated 3.9.1999, is set aside to the limited extent mentioned hereinabove. The Writ Petition is disposed of accordingly. No costs. ___________ 20-09-2012 [1] (2007) 2 SCC 616 [2] 2002(1) ALD 598 (FB) [3] (2009)5 SCC 342 [4] (2003) 4 SCC 147 [5] (2000) 6 SCC 224