D. PAUL DAVID Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE petitioner herein was appointed as Works Manager of the second respondent's factory near the city of Madras from 1 -6 -1962 on a monthly salary of Rs. 950 plus certain commission. He was originally appointed foe a fixed period of three years under a contract of service dated 16 -6 -1962. The said contract was renewed for a further period of three years with effect from 1 -6 -1965 under the contract dated 12 -7 -1965 and the petitioner's salary was increased to Rs. 1100 per month plus certain commission. By a letter dated 22 -2 -1963, the petitioner's services were terminated with effect from 1 -3 -1968, by the second respondent, on payment of three months' salary in lieu of notice. Thereafter, the petitioner herein preferred an appeal under Section 41 of the Madras Shops and Establishments Act, 1947, to the third respondent herein. Before the third respondent, the second respondent raised an objection that Section 41 of the Madras Shops and Establishments Act. 1947, had no application to the petitioner herein, since the petitioner was employed on contract for a fixed period. This was based upon an order of the Government of Madras in G. O. Ms. No. 1410 Development Department dated 20 -3 -1948, made under Section 6 of the Madras Shops and Establishments Act 1947 (Madras Act 36 of 1947). The third respondent without deciding the question whether the appeal filed by the petitioner herein was in time or not or without deciding the appeal on merits, dismissed the appeal solely on the basis of the said Government order, holding that Section 41 of the Act was not applicable to the petitioner herein. It isto quash this order of the third respondent herein, the present writ petition has been filed under Article 226 of the Constitution of India.

(2.) THE sole and the angle argument advanced on behalf of the petitioner herein is that the said G. O. of 1948 is violative of Art. 14 of the Constitution of India, since it discriminates the petitioner herein as against the other employees, solely on the basis that the petitioner's services are governed by a contract for a fixed period. For the purpose of appreciating this contention, it is necessary to refer to one or two provisions of the Madras Shops and Establishments Act 1947, (Madras Act 36 of 1947), This Act was brought into force on 1 -4 -1948. by G. O. Ms. 1323, Development, dated 17 -3 -1948. Section 4(1) (a) of that Act provides that nothing contained in the Act shall apply to persons employed in any establishment in a position of management and the other sub -clauses refer to other categories of persons to whom the provisions contained in the Act do not apply. Section 5 states that notwithstanding anything contained in Section 4, the State Government may, by notification, apply all or any of the provisions of this Act to any class of persons or establishments mentioned in that section, other than those mentioned in Clauses (c) and (f) of Sub -section (1) and modify or cancel any such notification, Section 6 provides: - -

(3.) BEFORE proceeding to consider the argument advanced on behalf of the petitioner, it is better to give the impugned G. O. itself and that G, O. is: