(1) The short question that arises for consideration in this writ petition is whether the provisions of the andhra pradesh co - operative societies act, 1964 and the rules and bye - laws made thereunder govern the employment of the petitioners herein, who are all employees of the wanaparthy co - operative marketing society ltd. , wanaparthy, or the provisions of the andhra pradesh shops and establishments act, 1966.
(2) It is alleged that the petitioners, who are termed as temporary employees, have put in more than six months' service prior to the issuance of the impugned order dated 15 - 11 - 1978. They are ousted from service on the ground that they are temporary employees of the co - operative society and on the further ground that in view of the huge losses sustained by the society, the financial position of the society is not such that they could be continued in service. A promise is however, held out that as and when the financial position of the co - operative society improves, they would be absorbed in the institution. Finding little consolation in this promise and being aggrieved by the summary orders of termination of their services, the petitioners have invoked the jurisdiction of this court. It may, at this stage, be stated that if the provisions of the andhra pradesh shops and establishments act, 1966 apply to the petitioners, section 40 of that act prohibits the termination of the services of any employee except in accordance with the conditions laid down therein. Section 40 of the andbra pradesh shops and establishments act, 1966 reads as fellows : "40. Conditions for terminating the services of an employee and payment of gratuity : - (1) no employer shall without a reasonable cause and except for misconduct terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee, at least one month's notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than five years, a gratuity amounting to fifteen days' average wages for each year of continuous employment, explanation : for the purpose of this sub - section, - - - - - (a) the expression"'wages' does not include overtime wages; (b) the expression 'average wages' means the daily average of wages for the days an employee actually worked during the thirty days immediately preceding the date of termination of service: (c) an employee in an establishment shall be deemed to have been in continuous employment for a period of not less than six months, if he has worked for not less than one hundred and twenty days in that establishment within a period of six months immediately preceding the date of termination of the service of that employee ; (d) where the total continuous employment is for a fraction of a year or extends over a fraction of a year in addition to one or more completed years of continuous employment, such fraction, if it is not less than a half year shall be counted as a year of continuous employment in calculating the total number of years for which the gratuity is to be given, (2) where a gratuity is payable under sub - section (1) to an employee, he shall be entitled to receive bis wages from the date of termination of his service until the date on which the gratuity so payable is actually paid subject to a maximum of wages for two months. (3) an employee, who has completed ihe age of sixty years or who is physically or mentally unfit having been so declared by a medical certificate, or who wants to retire on medical grounds or to resign his service, may give up his employment after giving to his employer notice of at least one month in the ease of an employee of sixty years of age, and fifteen days in any other case; and every such employee and the dependent of an employee who dies while in service, shall be entitled to receive a gratuity as provided in subsection (1). He shall be entitled to receive the wages from the date of giving up the employment until the date on which the gratuity so payable is actually paid, subject to a maximum of wages for two months. (4) the services of an employee shall not be terminated for misconduct except, for such acts or omissions and in such manner, as may be prescribed. Explanation : for the purpose of this section, the term, 'employee' shall include part - time employee also",
(3) The petitioners admittedly have been in employment for a continuous period of not less than six months, they have not been given at least one month's notice in writing or wages in lieu thereof nor have they been paid gratuity amounting to fifteen days average wages for each year of continuous employment as laid down in section 40 of the act. There cm be little doubt that if section 40 of the act applies, the orders of termination impugned in this writ petition must be quashed.
(4) A reading of the provisions of the andhra pradesh co - operative societies act and the provisions of the andhra pradesh shops and establishments act, leaves one in little doubt that the provisions of the andhra pradesh shops and establishments act, 1966 prevail over the provisions of the andhra pradesh co - operative societies act, 1964. The andhra pradesh co - operative societies act is the earlier enactment. No doubt under section 129 of the andhra pradesh co - operative societies act, it is declared that the provisions of the companies act, 1956, the andhra pradesh (andhra area) shops and establishments act, 1948 and the andhra pradesh (telangana area) shops and establishments act. 1951 shall not apply to societies, but the shops and establishments acts of andhra area and telangana area refened to in section) 29 of the 1964 act (a p. Co - op. Societies act) have been repealed under section 72 of the 1966 act (a. P. Shops and establishments act) in the following words; "72. Repeal and saving : with effect on and from the date on which this act is brought into force in any area, the andhra pradesh (andhra area) shops and establishments act, 1947 and the andhra pradesh (telangane area) shops and establishments act, 1951, as the case may be, as in force in that area shall stand repealed; provided that, (a) every appointment, order, rule, notification or notice made, issued or given under the provisions of any of the acts so repealed shall, in so far as it is not inconsistent with the provisions of this act, be deemed to have been made, issued or given under the provisions of this act, unless and until superseded by any appointment, order, rule, notification or notice made, issued or given under this act; (b) any proceeding relating to the trial of any offence punishable under the provisions of any acts so repealed shall be continued and completed as if the said acts had not been repealed but had continued in operation and any penalty imposed on such proceedings shall be recovered under the acts so repealed". Then section 69 of the 1966 act lays down as follows: "notwithstanding anything in the andhra pradesh co - operative societies act, 1964, the provisions of this act shall apply to the co - op, societies",
(5) In view of the non - obstante clause in section 69 of the 1966 act, the provisions of the 1966 act will have an over - riding effect and would apply to the co - operative societies, of course, the 1966 act would apply to the commercial undertakings as defined in section 2 (5) of the act. That definition reads as follows:
"2 (5) : 'commercial establishment' means any establishment which carries on any trade, business, profession or any work in. Connection with on incidential or ancillary to any such trade, business or profession, or which is a clerical department of a factory or an industrial undertaking or which is a commercial or trading or banking or insurance establishment and includes an establishment under the management and control of a co - operative society, an establishment of a factory or an industrial undertaking, which falls outside the scope of the factories act, 1948 and such other establishment as the government may, by notifications, declare to be a commercial establishment for the purpose of this act but does not include a shop". 'the matketing co - operative society undoubtedly carries on trade or business' and is a commercial establishment within the meaning of section 2 (s) of the 1966 act. Hence, the petitioners are governed by the provisions of the 1966 act and notwithstanding the provisions of section 129 of the 1964 acl, (a p. Co - op. Societies act) , they are entitled to the beneficial provisions contained in section 40 of the 1966 act. Inasmuch as the respondents in terminating the services of the petitioners, have not complied with the provisions of section 40 of the 1966 act specifically referred to above, the order of termination of their services cannot be sustained. The impugned order is, therefore, quashed and the petitioners are declared to be in service of the society. The writ petition is accordingly allowed. No costs. Advocate's fee rs. 150/ -.
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