The Case of Indigent Firm

(V.K. Sathyavan Nair, Advocate, Kottayam)

The correctness of the proposition laid down in 1994 (2) KLT 697 that a firm as such cannot claim to be an indigent person under O.33 of the Code of Civil Procedure is doubted.

1. Firm - a collective name of all the partners

The reasoning of the High Court is that where a suit is filed in the name of a firm it is still a suit by all the partners of the firm and O.33 of the Code provides only a litigative convenience to the partners of the firm, for instituting the action in a Civil Court. The Division Bench also placed reliance on an observation contained in AIR 1961SC 325 to support the view. References are also made to 1910 -1 KB 868 and AIR 1955 SC 74.

There can hardly be any dispute regarding the established proposition that the word 'firm' or the 'firm name' is merely a compendious description of all the partners collectively and where a suit is filed in the name of the firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. In other words the firm has no separate legal entity apart from the partners who constitute the firm.

2. Legal persons

A person is any being whom the law regards as capable of rights or duties. A legal person as opposed to natural person is any subject matter other than human being to which the law attributes personality and is a creation of law. Legal persons may be of as many kinds as the law pleases. A relevant portion of the discussion on the personality conception of the legal entity as contained in Salmond on Jurisprudence (12th Edition - Page 310) is given below:

"In all these respects a Corporation is essentially different from an unincorporated partnership. A firm is not a person in the eye of law; it is nothing else than the sum of its individual members. There is no legal entity, standing over against the partners, as a company stands over against its share holders".

Yet a partnership is an accounting unit and there are special rules with regard to the position of partners which give it the superficial appearance of a legal entity.

3. Limited Personality

Firm is an artificial or 'moral' person for business purposes, and in some systems of law this personality receives formal acknowledgment. The commentaries on Indian Partnership Act by Pollock and Mull a say that i n Scot! and, in particular, a firm is a legal person distinct from the partners of whom it is composed. This aspect was considered by the Privy Council in Bhagawanji Morarji, Goculdas v. Alembic Chemical Works Co. Ltd., AIR 1948 PC 100 and observed:

"The Indian Partnership Act goes further than the English Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it, me law in India, in that respect being more in accordance with the law of Scotland man with that of England".

The above principle has been followed by the Kerala High Court in 1960 KLT 1087. In that case the question was whether a firm as such is a manufacturer entitled to the benefit of exemption granted by a notification issued under the Central Excise Rules. Some persons were common partners in more than one firm. It is held by the court that the firm (and not the individual partners) is the manufacturer entitled to me benefit of the notification.

In 1987 (2) KLT 314 U.L. Bhat, J. has observed that the concept of partnership law is that a firm is not an entity or a person in law but only a compendious mode of designating persons who have agreed to carry on the business of partnership. The law English as well as Indian, has for some specific purposes relexed its rigid notions and extended a limited personality to a firm. It is an independent and distinct juristic person for the purpose of Income-tax and Sales tax laws. This decision has been confirmed in 1987 (2) KLT 630. Though the question of limited personality was not involved in 1987 (2) KLT 630 the court has referred to AIR 1977 SC 489 and quoted the observation made by Krishna Iyer, J. - that a firm is a unit of assessment in Income Tax Law and other laws where it has been specifically so provided, and "that although for the purpose of those special litigation, the firm has certain attributes simulative of personality, the partnership is not a person, but a plurality of persons."

The significant point is that the court recognises certain limited purposes for which a firm can be deemed as a unit and legal entity. In this connection the observations made by the Supreme Court in AIR 1965 SC 1718 after referring to AIR 1956 SC 354, AIR 1961 SC 325, AIR 1963 SC 243, AIR 1948 PC 100 and other decisions and also to the authoritative opinion of Lindley L.J. are very pertinent. "0.30 of the Code permits a firm to sue or be sued in the firm name vas if it were a corporate body'. Consistently with this legal fictions R.3 permits service of summons on a partner or a person having control or management of the partnership business, R.4 permits the institution and continuance of the suit in the firm name in spite of the death of a partner before the institution or during the pendency of  the suit without joining the legal representative of the deceased partner as a party to the suit, and R.9 permits a suit between a firm and one or more of its partners and between firms having one or more common partners. But the legal fiction cannot be carried too far.

For some purposes the law has extended a limited personality to a firm". (emphasis supplied)

A reading of O.30 and also other provisions of the Code concerning partnership (R.49 and R.50 of O.21) would lead to the conclusion that for certain limited purposes procedural law recognises firm as a unit and legal entity. In such cases the appearance of a legal entity may be simulative or superficial, when compared to the permanent legal unity of a company or Corporation. But it cannot be gainsaid that to a limited extent procedural law and some special statutes like Income Tax Act and Sales Tax Act recognise firm as a unit and legal entity.

4. Property of Firm

Another important aspect also has to be considered. Property of a firm is different from the properties that exclusively belong to the individuals who are partners. S.14 of the Partnership Act deals with the concept of property of the firm. The effect of Ss.14 and 15 is that so long as partnership continues, no part of the assets of the partnership can be regarded as belonging to an individual partner and, conversely, the personal assets of a partner is not the property of the firm. A firm as such holds and deals with property. It is worthwhile to quote paragraph 5 of the decision of the Supreme Court reported in AIR 1966 SC 1300.

"It seems to us looking to the scheme of the Indian Act no other view can reasonably be taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in a capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not to be able to claim or exercise any exclusive right over any property which he has brought in much less over any other partnership property."

It follows that the property of a firm is distinct from the other assets of the individual partners.

5. 'Person' in Q.33 R.1

It is settled by our High Court that word 'person' occurring in O.33 R. 1 includes juridical persons like company and association of persons. The Division Bench in 1961 KLT 45 observed:

"There is no definition of person in the Civil Procedure Code. Therefore, the interpretation of the said term in the General Clauses Act would apply, according to which a "person' shall include any company or Association or body of individuals, whether incorporated or not. This shows that" person' would include both natural and legal person". This principle has been followed in 1992 (2) KLT 274 and held that "person' in O.33 R.1 C.P.C. should have the extended meaning given to it in law and is not limited to natural person.

6. Procedural indulgence

Pauperism is a personal matter and not the right to sue itself. 0.33is an indulgence granted to persons who sue in a court are unable to pay the fee prescribed by the court fees Act. It only postpones the payment of court foes for the sake of litigative convenience and does not affect the substantive rights of parties. Similarly it is only for the sake of litigative convenience, O.30 of the Code permits a firm to sue or be sued in the firm name. Moreover where the plaintiff sues in a representative capacity the question whether he is indigent person shall be determined with reference to the means possessed by him in such capacity (Explanation III to R.l of 0.33). The position is similar with respect to partnership also. In a suit by a firm the parties are the partners in their capacity as partners and not in their individual capacity. The question whether the partners have property in their individual capacity is immaterial in deciding the question whether the partnership is possessed of sufficient means to enable the firm to pay the fee prescribed by law.

To conclude, a firm may become indigent while its partners may remain rich. The legal fiction of limited personality incorporated in O.30 can be applied with equal appropriateness in the case of O.33 also.

It is respectfully submitted that 1994 (2) KLT 697 requires reconsideration.

Needs of Superannuation

(By R.P. Remesan, Advocate, Kannur)

It is true that the industrial enactment purports to console the 'sickness' between employees and employers. But this statement raises a question. Does it really do so?

Answer would neither be 'yes' nor 'no'. It is somewhere in between.

I think dial the labour law is deficient in retirement provisions.

Present laws hesitate to demark any line on the age of the workmcn.lt is left to the employer as well as employees to decide the date of superannuation of the employees working in the particular establishment. The law stretches its right hand to the employee with a note, 'work till you are satisfied' at the same lime stretching its left hand to the employer holding out 'save yourself. It is the epitome of the industrial law prevailing in this country.

Grey matter helped the employers. They brought to bed of the dale of 'death' along with the appointment order. Someone chooses the standing orders for their survival and as defence. In such a situation the position is belter for those who are espoused to take such weapons: The industrial establishment having crores of investment arc particular about dealing with the labour problems eventhough the bade unions arc more offensive. They are big shots. Big shots are likely to be big wigs.

One-horse-carts are not rare on Indian Roads. Many of the establishments are infirm or incapable of framing their own standing orders. The condition of superannuation cannot be imposed up on the employees at the time of appointment since there need not always be the practice of issuance of appointment orders.

If a dispute sets in a small establishment normally it would end up in the court of law. Passing an award by the proper forum will not change the situation much. Let me illustrate my speculation as follows: "An award has been passed by the Labour Court directing the employer to reinstate the workmen with back wages. Employee was 58 years old and refused to work properly. That was why he was dismissed from service earlier. He is not willing to retire from service for the time being. The employer knows the indomitable strength of the union to which he belongs. In such a case the employer has no option but to pray for his good mindedness. According to him it is Hobbson's Choice'.

What is the remedial measure to overcome this is dead end. The ball is at the court of the legislature and of the judiciary. But it does not mean that the task is easy not involving any risk. The retiral age was discussed by the Supreme Court may times. On several occasion the Supreme Court held so, as “the question (age of superannuation) would always depend on a proper assessment of the relevant factor which may conceivably vary from case to case (1960 II LLJ. 716 (SC) Gajendragadkar observed in Guest, Keen, William (P) v. V.P.J. Sterling (1959 (II) LLJ 405 SC) that the important factors that industrial adjudication has to take into consideration for fixing the age of superannuation are;

(a) nature of the work assigned to the employees in the case of their employment.

(b) nature of the wage structure paid to them.

(c) retirement benefits and other amenities available to them.

(d) character of the climate where the employees work.

(e) the age of superannuation fixed in comparable industries in the same region.

(f) (he practice prevailing in the industries in the past in the matter of retiring its employees.

Again in lmperial Chemical Industries v. The Workmen (I960 II LLJ 716) Supreme Court observed that no hard and fast rule can be laid down in fixing the age of retirement. It is further held that proper assessment of the relevant factor which may vary from case to case.

What is the apt age for retirement of a workman? Consensus between employer and employee is yet to arrive. Our courts also opined different ages for different workmen, varying from 55 to 60 i.e. 55, 58 or 60. In G.M. Talang v. Shaw Wallace & Co. (1964 II LLJ 644) and the British Paints v. The Workmen (1966 I LLJ 407) the apex court was inclined to hold the age of superannuation to be at an age of 60 years. In the Workmen v. Balmer Lawrie (1964 I LLJ 380) the Court held "we feel that the time has now come for increasing the age of retirement in the case of clerical staff and the subordinate staff generally from 55 to 58. In Associated Power Co. v. The Workmen (1964 LLJ 743) the Supreme Court held the view that the age of retirement of the workmen al58 years was reasonable. In Jeevan Lal v. The Workmen, 1961 (I) LLJ 517 (SC) the observation of the court is that the present day tendency to fix the age of superannuation generally at 60 years and unless the tribunal feels that the work of the operatives is particularly ardous or hazardous where workmen may lose efficiency earlier. Same view was held again in Hindustan Times V. The Workmen (1963 I LLJ 108).

Considering the judicial verdict and opinion of the jurist flat retirement age system is not practicable. So, after considering the relevant factors pertaining to employment a statutory provision can be introduced. On any account such an amendment will not affect the nature and purpose of labour law.

Humour in Robes

(S. Parameswaran, Advocate, High Court of Kerala)

Law, literature and humour were inseparable companions in the days of yore. Ever since the nobility and learned nature of this oldest profession in the world started going down the Gadarene slope, and what was essentially a profession with its etiquettes, ethos, rigour and rhythm started degenerating into a trade, thanks to the influx of undesirable and undeserving persons into the field, these essential traits also started disappearing from the arena. The lawyers, and the judges, whose origin is in the lawyers, have, apart from undergang other qualitative degeneration, lost their sense of humour. One has, therefore, to be content with nostalgic memories of the past when law, literature, legality and lighter vein used to be visible in a commendable camaraderie.

The immediate provocation for these lines is a small incident that took place yesterday (24-10-1994) in the Court of Honourable Chief Justice. A batch of cases in which this writer appeared for the appellants was taken up for hearing. This writer sought for adjournment on the ground of his having to go out of station on professional work and submitted that it could be taken on a specified date. The puisne Judge sitting with the learned Chief Justice humourously asked what guarantee was there that this writer would be back and argue the cases on that day to which this writer replied that he would come back and argue, if he was alive. The junior Judge said that, that is the case with everybody. Then pat came the remarks of Chief Justice Sujatha Manohar "That is all the more the reason why the cases should be argued by you today", which threw the full court into reels of laughter. Without exaggeration it may be said that after the M. S. Menon Court, it was for the first time that one could witness such sharp witted and humourous comments from the Chief Justice's Court.

Talking of M.S. Menon, Chief Justice, who is one of the most intelligent Judges 'that adorned the Kerala High Court, the repartees exchanged between him and the late lamented doyen of the Bar, Thycaud Sri Subramania Iyer rush to one's mind.

Once during monsoon, Thycaud's case was called in the First Bench of Chief Justice M.S. Menon and Justice Govindan Nair. As usual, Iyer who was not in Court rushed to the Court Menon C J. said "Slowly, slowly Mr. Thycaud. It is slippery outside over there". Without batting an eyelid replied Thycaud, "Yes, I know My Lord. And I know that this Court is more slippery!". The whole court roared with laughter.

On another occasion, Justice Menon, who revelled and exulted in provoking Thycaud, pointing to the cracks in the outer wall of tire Court hall told Sri Iyer "Look there, Sri Iyer, there are several cracks over there. What shall we do?". Without pausing for a minute, Iyer replied "Yes, My Lord, I saw that - But there are bigger cracks within this Court. I am concerned about it" Needless to say, Justice Menon, with his partly frame and penetrating intellect, shook with laughter.

On another occasion, Sri Menon, who could not brook mediocre, presentation or prosaic agreements or bad English, told a counsel, stopping his harangue midway, "Look here, Mr........, you are now making your valuable (!) contribution to the jurisprudence of this country to the detriment of your client and the delectation of the bench". Poor counsel, he took it as a compliment and patted himself on his back!

The illustrious Supreme Court lawyer of yesteryears Sri. A.V. Viswanatha Sastri was as much notable for his sense of humour as for his sharp wit, voluminous practice, frugal living and dishevelled attire and appearance. Justices Jeevanlal Kapur and S.K. Das of the High Bench, who were highly appreciative admirers of Sastri, delighted in taunting him to bring out his repartees. Once Sastri argued a Special Leave Petition in Das, J's Court and rushed off to another Court. Finishing argument in a case there, he rushed back to Justice Das's Court to argue another case. He went on repeating the process, when, unable to control his tongue, Justice Das remarked, "Mr. Sastri, you are all the time coming back to us like a bad coin" Spontaneous came the reply of Sastri "My Lord, Your Lordships may not talk of bad coins because Your Lordships came every day to the Court". A peel of laughter went around the Court.

I may conclude these lines mentioning an incident involving, Thycaud, Justice P.T. Raman Nayar, as he then was, was sitting in a bench dealing with Second Appeals admission and hearing. Nayar, J., wlto was a very competent Judge, had prejudices and predilictions. His.Lordship was dismissing all cases listed for admission on aparticular day. When a week case of a favourite lawyer of his came up, Justice Raman Nayar without hearing at length, admitted the Second Appeal and granted stay. Then came the tarn of Thycaud. The indefatigable, illustrious and irrepressible lawyer, in his inimitable style, opened his arguments, "My Lord, my first submission is that my case is not as bad as that of my learned friend Mr......(meaning the favourite of the Judge)". Before he uttered the next word, the Court ordered: "Notice and interim stay". It is our benighted fate that we have to remain content with the nolstagic memories of such lawyers and judges who enriched the law of life with their sharp wit and witticism, remarkable presence of mind, commendable perpicacity, incisive analysis, sturdy independence and priceless integrity. Such great men will ever remain an outstanding ever-blazing comet in the legal firmament.

Judicial Repentance or re-thinking?

(By. S. Parameswaran, Advocate Ernakulam)

(1) One is not dismayed, but dejected and disappointed, on reading the news item entitled "Judge deletes own remarks on V.V.I.P." in the Indian Express dated 24.9.95. Justice Jagadeesan of Madras High Court suo moto deleted certain paragraphs from his judgment concerning the mega-wedding of Sudhakaran, the foster son of the megalomaniac Madras Chief Minister Jayalalitha. He cannot claim to be poineer of suo moto review on the judicial front, for, way back in 1968, Chief Justice M. Hidayathullah of the Supreme Court suo moto reviewed a judgment passed by his Lordship in circumstances entirely different and justifiable.

(2) Justice Jagadeesan's belated attempt is to wriggle out of the opprobrium and onslaughts rightly directed towards him by the discerning common men and the enlightened public of this country. When the case came up on 4.9.1995 before the Bench, the Judge appeared independent and earnest in adjudicating the case, and gave certain directions to the Respondents and the Advocate General. But, in spite of persistent and persuasive efforts by the counsel for the petitioners, who were themselves Advocates of the Madras High Court, Justice Jagadeesan did not give an early posting, but posted the case for orders on the 7th September to be delivered after the wedding, thereby rendering infructuous and nugatory the writ petition itself.

(3) One is not surprised at such conduct of the higher judiciary in this country which has witnessed several instances of the higher echelons of the judiciary functioning as evolutionery extensions of the Establishment.

Self-seeking sychophancy has ceased to be the exclusive preserve of the politicians and the Bureaucracy in this country; it has found fertile soil in the higher echelons of the Indian Judiciary as well. Chief Justice Coke of England, who repudiated Government of men in favour of Government of law (Non sub sub homine sed sub deo et lege) and invited the wrath of the monarch of England must be turning in his grave.

(4) In the present, case it was the critical editorial in Tuglaq, a Tamil fortnightly, that has apparently spurred Justice Jagadeesan into deletion of his observation. After having done great damage through his judgment there was nothing for the Judge to lose by deleting the observations in question. The reasoning given by the learned judge for his review is astounding, and no less agonising. It is not a remorse-stricken retreat, but a belated attempt at escapism on account of a frontal attack from the Fourth Estate. Nor does the learned Judge appear to have been swayed by the observation of Justice Jackson of U.S. Supreme Court;"we are not final, because we are infallable, but we are infallible because we are final".

(5) Justice Jagadeesan's decision aroused the ire of the public and the press by inventing and extending a protection to the powers and prerogatives of the Chief Minister by eclipsing the egalitarian ethos informing Article 14 of the Constitution.

(6) Our constitutional set-up and development of Indian jurisprudence in the post Independence era provide opportunities to individual justices to influence the development of constitutional law and public policy significantly. In certain cases they can be specially influential because of the force of their intellect and the power of their personality or of their commendable persuasive capacity. Justices Krishna Iyer, Bhagwati, Chinnappa Reddy, Dharubhai Desai, Y.V. Chandrachud and P.B. Gajendragadkar fall in this category. Their social vision and moral mission have given a totally new look and direction to the Apex Court and they translated Justice Vivian Bose's famous dictum that the Constitution is not meant only for the affluents and the influential, but also for the butcher, the baker and the candle stick makers" into an operative reality. They are the salt of the earth. But, unfortunately, we had and have a few Justices who a la Jagadeesan, J. express views and expound philosophies from the Bench making people suspect that they do with an eye on their personal future. The black robes of judicial office cannot eliminate the human attributes and motivation of the people appointed to sit on Bench.

(7) When dealing with subjects like judges who are relatively inaccessible and purposefully obscured behind a symbolic facade, one has to be cautious and must avoid speculation. But in order to ensure and promote the collective understanding of the judge's roles in the Indian legal and judicial system, one must necessarily have the freedom critically to observe and analyse their judicial conduct. Jurimetrics is a sine qua non for the healthy development of any judicial system and the preservation and promotion of the Rule of Law. And the public has to keep a vigilant watch to see that an institution expected to be the sentinel on the qui vive does not degenerate itself into a semantic forum for self-seeking sycophancy. A drop of vinegar will suffice to spoil and savour a whole cup of milk.

(8) In judicial discourse, atleast in the tradition of legal justice in the Anglo-American orbit, the will to power has to be constantly, in each decision, justified by an act of reasoned discourse. Judges have to give cogent reason for their decisions, which have to be publicly articulated and reported (unlike a Minister's order on files). Not merely is this articulation and publication of reasons thus structured, it has also to form part of a corpus of judicial reason itself. In other words, past decisions are a guide, and they sometimes bind, the future scope for decision. The obligation for public discourse is thus writ large on judicial power which, all said and one, is not like the executive and legislative power residing in the domain of sheer will. It also straddles the domain of reason, judicial power is the jurisdiction of reason in ways that neither legislative nor executive power is, in its very nature. (Upendra Baxi, "Judicial Discourse : Dialetics of the Face and the Mask" 35 J .I.L.I. (1993) page 1).

(9) In the imperfect legal setting and political atmosphere we have in this country, we expect our Judges to uphold the Rule of Law and yet not utterly disregard our need for the discretionary justice of Plato's philosopher king, to be cautious sometimes and sometimes to be bold, to respect both the traditions of the past and the convenience of the present, to reconcile liberty and authority, the whole and its parts, the letter and the spirit. The great judge is an "activist", a legislature who uses the law's inevitable ambiguities to promote justice and, no, doubt, he carries the merciless burden of adjudication. Justice Jagadeesan cannot take shelter under the Holmesian "can’t helps" to justify his conduct. " A judge must manage to escape both horns of the dilemma", he must preserve his authority by cloaking himself in the majesty of an overshadowing past but he must discover some composition with the dominant trends of his time - at all hazards he must maintain that tolerable continuity without which society dissolves, and men must begin again the weary path up from savagery". (Learned Hand, 'The Spirit of Liberty' 3rd Edition Dilliard, 1960, page 130).

(10) Tail-piece:

                             "I live with bread like you, feel want

                             Taste grief, need friends, subjected thus

                             How can you say to me I am a King".

                                                                                                  (Shakespeare's Richard II).

Labouring the point — A critique of

Thomas Eapen v. Asst. Labour Officer reported

in 1993 (2) KLT 241

(S. Parameswarctn, Advocate, High Court of Kerala)

1. Law is ubiquitous in important ways, that crude numbers cannot possibly capture. Many rules of law, after all, are general commands intended or supposed to serve as long-term guides to good behaviour. These rules of law cannot be measured or counted as if these one spot events, puffs of smoke that vanish into thin air in the wind. Measuring lines and pages, weighing volumes and counting laws, rules, cases and so on does not give a true sense of the import and impact of the legal words and their structures. One must look for other ways to assess the consequences of the rules set in motion by legal and judicial institutions. A decision of the Supreme Court in a Privy Purse case, in a Bank Nationalisation case, in an Indian Express case, in a Mary Roy Case, in a Shah Bano case, in an Air Corporation case, in a Maneka Gandhi's case, in a Bandhwa Mukti Morchas case, in an M.C. Mehta case, or a Christian Medical College case, or an act of Parliament giving rise to a consumer protection enactment or a National Legal Aid System are generally events whose effects ripple out in society and bring about institutional consequences; counting the words tells us nothing.

2 During the last two decades, particularly during the time of Chief Justice Gajendragadkar and in the Eighties during the period of Justices V.R Krishna lyer, D.A. Desai, Chinnappa Reddy, P.N. Bhagawati and, to some extent Y.V. Chandrachood, law-judge-made law to be more precise-increased its scope and scale in at least one important field-Industrial jurisprudence. There are few zones of immunity from law, fewer areas of life which are totally unregulated, totally beyond the potential reach of law now. This is not merely a phenomenon of legislation but of judicial activism, and it has detected often in cries of alaram a la "wolf that there is a colonisation of law in every walk of life. When the other two pillars of democracy, namely, the Legislature and the Executive have not risen upto our expectations and have undergone a deviation from heritage and propriety in recent times atleast in this part of the world, it is too natural if people look forward to the third wing of the Government, namely the judiciary, as the bulwark of democracy. As Chief Justice Patanjali Sastri observed in V.G. Row's case, AIR 1954 SC 240 the judiciary acts as the sentinel on the qui Vive.

3. As was observed by the Supreme Court in Gurcharan Singh v. Kamala Singh (1976) 2 SCC 152) the interpretation of socio-economic legislation should further the object and purpose of the legislation and the legislative history becomes irrelevant when the Act seeks to usher in a new order. Again as the Supreme Court observed in Maharaj Singh v. State of U.P. reported in (1977) 1 SCC 155 "the goal of-the legislation must make its presence felt, when the judicial choice of meaning of the words of ambigous import or the plurality of signification is made".

4. Again, as the Supreme Court reiterated in Sant Ram v. Rajinder Lal reported in (1979) 2 SCC 274 "Statutory construction, so long as law is at the service of life, cannot be divorced from the social setting. That is why, welfare legislation like the present one must be interpreted in a Third World perspective. When interpreting the context of such provisions, the Court should favour the weaker and poor clients".

5. Again, as the Supreme Court observed in Shiveshwar Prasad Naramsingh v. Ghurah (1979) 3 SCC 23) "it is a well-settled cannon of construction that when two constructions are possible, one which advanced the object of the legislation must be preferred to one which may retard or frustrate the object of the legislation". The further principle is that in all doubtful matters the beneficial should be preferred. It is embodied in the Latin expression Semper in dubis benigniora praeferanda".

6. Viewed in this background, it is disheartening - to see the Kerala High Court giving an object-defeating interpretation to a piece of labour legislation in two decisions - Thomas Eapen v. Asst. Labour Officer (1993) 2 KLT 241) by P.K. Shamsuddin, J. and Sherthallai Sree Narayana Medical Mission General Hospital v. Damodaran Krishnan Unni (1975 KLT 572) by G. Viswanatha Iyer, J.

7. The Kerala Shops and Commercial Establishments Act, 1960 has been enacted, as the preambular proclamation reveals, to consolidate and amend the laws relating to the regulation of conditions of work and employment in Shops and Commercial Establishments in the State of Kerala. It came into force on 1-3-1962, under a notification dated 15-1-1962 published in the Kerala Gazette dated 6-2-1962. By a notification dated 3-4-1979 published in the Kerala Gazette dated 5-6-1979, all the provisions of the Act have been extended to the whole State. Under S. 5 of the Act, the Government is empowered by notification in the Gazette to exempt an establishment pemanently or temporarily from all or any of the provisions of the Act conditionally or unconditionally. This, it can do if it is specified that public interest so requires or that circumstances of the case are such that it would be just and proper to do so having regard to the nature and capacity of the shop. As has been observed while interpreting the Madras enactment in Sudarsanan v. State of Madras reported in AIR 1957 Mad. 144, this clause is not intended to undo the whole Act itself, but for properly administering the Act.

8. S. 3 grants exemption specifically to persons and establishments enumerated therein. S. 4 empowers the Government to apply all or any of the provisions of the Act even in such cases. From this, it will be clear that what is intended under S. 5 is not a permanent, perpetual, perennial exemption from the provisions and purview of the proletarian-oriented statute, but a temporary interregnum from its operation in circumstances justifying or warranting it. S. 36 of the Kerala Shops and Commercial Establishments Act, 1960 provides for repeal of certain enactments which includes the Travancore Cochin Shops and Establishments Act, 1125. There is a proviso to the section which reads as follows:—

Repeal of certain enactments:—

On and from the date of the commencement of this Act in any area, the enactments, specified in the Schedule shall stand repealed in so far as they apply to such area:

Provided that anything done under the said enactments which could have been done under this Act, if it had then been in force shall be deemed to have been done under this Act".

9. What is intended by the expression is any step or action taken by the Authorities in pursuance of the enactment which was in force earlier and which cannot, by any stretch of imagination, be extended to an executive order like a notification issued by the Government. It is, therefore, clear that a notification issued by a repealed enactment cannot have any validity in the eye of law, once the new enactment namely the Kerala Act, has come into force. But, Hon'ble Justice P.K. Shamsuddin has held to the contra, while considering a case in relation to maternity benefits under the Maternity Benefits Act, 1961. In that case, the provisions of the Maternity Benefits Act were not complied with in relation to three nurses employed by the Kadampuzha Hospital, Kanjirappally and they took up the matter before the Assistant Labour Officer, who issued notices to the hospital authorities. The hospital authorities sent a reply stating that the provisions of the Maternity Benefits Act will not be applicable to hospitals which are not covered by the enactment and thereupon a show cause notice was sent asking why the prescribed amount should not be directed to be paid towards maternity benefits, and medical bonus to one of the nurses. It culminated in the order directing payment to the three nurses under S. 17 of the Maternity Benefits Act, 1961. That order was challenged in a writ petition before the Hon' ble High Court of Kerala and relying on the decisions of Justice G. Viswanatha Iyer in Sherthallai Sreenarayana Medical Mission General Hospital v. Damodaran Krishnan Unni reported in 1975 KLT 572 and by Janaki Amma, J. in State of Kerala v. Athichan Sasi 1975 KLT 839 which had arisen under the Travancore Forest Act and the Kerala Forest Act, Justice Shamsuddin, allowed the writ petition observing as follows:

"It is true that by virtue of this Notification the provisions of the Maternity Benefits Act have been made applicable to all the establishments as defined in CI.(8) of S.2. S.2 says that v establishment' means a commercial establishment. It is not disputed that this expression will take in hospitals, nursing homes and dispensaries .But, the contention raised is that permanent exemption is granted for hospitals, nursing homes and dispensaries by virtue of Notification No: L. Dis. 2186/57/LAD dated 17-4-1957 quoted above and the said Notification has not been cancelled. It is true that the Travancore Cochin Shops & Establishments Act, 1125 was repealed and re-enacted by the Kerala Shops and Commercial Establishments Act. A provision similar to S.6 of the Travancore-Cochin Shops and Establishments Act, 1125 is enacted in S.6 of the Kerala Shops and Commercial Establishments Act, 1960. So this notification will be consistent with the provisions of the latter Act and so long as the said notification has not been cancelled, it may be taken as having been issued under the latter Act by virtue of S.23 and shall continue in force until it is cancelled. Moreover, proviso to S .36 states that any tiling done under the repealed Act which could have been done under the latter Act shall be deemed to have been done under the Kerala Shops and Commercial Establishments Act".

10. It may be noted that the learned Single Judge has referred in para.7 of the judgment to the Division Bench decision of the Kerala High Court in Jayaprakash v. State of Kerala reported in 1984 KLT 903, but attempted to distinguish it. The said decision, it is respectfully submitted, has been rendered by a Bench which consisted of an eminent Labour Judge. It considered and construed the expression 'establishment' in . its ambit and amplitude in the text and the context of the Minimum Wages Act, 1948 and held that private hospitals, dispensaries and pharmacies will come under the purview of Establishment'. The Division Bench comprising Acting Chief Justice K. Bhaskaran and Justice M.P. Menon observed as follows:—

"It is true that the employment in private hospitals, dispensaries and pharmacies did not find a place in the Schedule to the Act under S.2(g) as it was enacted by Parliament. However, in exercise of the powers conferred by S.27 of the Act, the Schedule to the Act has been amended by Government of Kerala, to be operative in this State, by adding Item No.21. Item No.21 in the Schedule to the Act is "employment in shops and establishments (including hotels and restaurants)". It is reasonable to presume that what the Government had in mind, while adding item 21 to the Schedule to the Act, was to bring within the fold of scheduled employment all shops and establishments which would fall within the ambit of those expressions as understood in common parlance. A hospital, dispensary or pharmacy would be understood in common parlance either as an establishment or as a shop. The dictionary meaning of the expression establishment' is comprehensive enough to bring within its sweep a hospital, dispensary or a pharmacy, inasmuch as each one of them might fall within the expression "fixed state, a permanent civil or military force, a business, a settlement".

11. Justice Iyer's decision in Sherthallai Sreenarayana Medical Mission General Hospital Case (1975 KLT 572), it is respectfully submitted, has been rendered totally ignoring, the effect and impact of the repealing provision namely, S.36 of the Kerala Shops and Commercial Establishments Act, 1960. That case arose from a suit for arrears of salary by an employee of a hospital where the question was raised whether there was bar to a suit of that nature. The Payment of Wages Act, particularly, S.22 thereof, was considered by the Court, which came to the rescue of the employees and against the Management, which curiously enough sought the aid of the Payment of Wages Act, 1936 read with the Kerala Shops & Commercial Establishments Act to deny benefit to its employees. Justice G. V. Iyer observed as follows:—

"The Notification issued under S.6 of the Travancore Cochin Shops and Commercial Establishments Act (Act 1 of 1125 M.E.) by the Kerala Government exempting nursing homes, hospitals and other institutions for treatment or care of the sick, the infirm, the destitute or the mentally unfit has not been cancelled subsequently. A provision similar to S.6 of the Travancore Cochin Shops and Establishments Act, 1125 is enacted in S.5 of the Kerala Act, 1960. So long as, the said notification has not been cancelled, it would be taken as having been issued under the latter Act by virtue of S.23 of the Interpretation and General Clauses Act, 1125 and treated as in force until cancelled. Therefore, the Shops and Commercial Establishments -Act does not apply to an employee of a nursing home and the provisions of Payment of Wages Act also will not apply".

12. The reliance placed on S.23 of the Interpretation and General Clauses Act 1125 of Travancore Cochin may not be acceptable, or correct, it is respectfully submitted. When the repealing Section itself is making provision, we do not have to go in for a reference to, or reliance on, the General Clauses Act. In any case, it was totally incorrect on the part of Justice Iyer to have placed reliance on S.23 of the Interpretation of General Clauses Act 1125, when the General Clauses Act (Central Enactment) was the Act that was applied to Kerala after the formation of Kerala State in a number of cases.

13. Justice P. Janaki Amma's decision in State of Kerala v. Adithian Sasi (1975 KLT 839) was clearly distinguishable on facts and in law. There the question was whether a notification regarding Reserved Forests issued under the Travancore Forests Act, 1068 could be deemed to be a notification under S.19 of the Kerala Act. There also S.23 of the Interpretation of General Clauses Act, 1125 was relied on, in my respectful submission not correctly. The rationale of the decision is when the Travancore Cochin Forests Act came into force, by virtue of S. 101 (3) of the said Act the notification issued under the Travancore Forests Act could be deemed to be notification issued under Travancore Cochin Forests Act and therefore logically the one issued under the Travancore Forest Act could be again deemed to be under the Kerala Act. This does not lend validity, or support, to the reasoning of Justice Shamsuddin.

14. Even a Devaswom establishment has been held to be an establishment coming within the purview of the Shops and Commercial Establishments Act by the Kerala High Court by Justice Gopalan Nambiar, in Supdt. v. Kunjan Kartha (1967 KLT 941). Interpreting S.2(4) of the Kerala Shops and Commercial Establishments Act 1960 and construing its scope and ambit, Justice Nambiar observed:—

"The words "an establishment or administrative service in which the persons employed are mainly engaged in office work" in the definition of the term commercial establishment' are peculiar to the Kerala Act and nothing corresponding to them is to be found either in the Madras Act or in the Travancore Cochin Act on the subject. It seems that with the above statutory definition, the only question is whether the Devaswom fills me bill for the limited purpose of the Act, and not whether it can be said to be a commercial establishment for all purposes whatsoever. On me terms of the statute taken along with the facts as found, the conclusion seems to be inescapable that me Devaswom satisfies the definition of a commercial establishment for the purposes of the Act".

15. As held in New India Sugar Mills v. Commissioner of Sales Tax, AIR 1963 SCI 207, is a recognised rule of interpretation of statute that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the court would be justified in assuming that the legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its powers invalid. In interpreting a statute, the Court cannot ignore its aim and object".

16. When two intepretations are feasible, that which advance the remedy and suppresses the evil as the legislature envisioned must find favour with the Court and the definitions in the Act are a sort of statutory dictionary to be followed, when the context strongly suggests (Carew & Co. v. Union of India, reported in (1975) 2 SCC 791). This was again emphasized in State of Haryana v. Sampuran Singh reported in (1975) 2 SCC 810) where the Court held that it is settled law that Court should favour an interpretation that promotes the general purpose of the Act rather than the one that does not. Public law in our pie-bald economy and pluralist society responds to social challenges and constitutional changes. To miss the ideological thrust of our Constitution and economic orientation of our nation while construing the legislation relating to public law and scanning them for their validity is to fail in understanding the social philosophy that puts life and meaning into the provisions of the Act. The Law, being realistic, reckons with the socialist sector favouring State and Co-operative enterprises. Again, as the Supreme Court stated with emphasis in Maharaj Singh v. State of U.P. (1977) 1 SCC 155) the goal of the legislation must make its presence felt while the judicial choice of meanings of words of ambiguous import or plurality of signification is made. "To be literal or be blinkered by some rigid canon or restriction may be to miss the life of law itself. The context controls the text and the purpose and scheme project a particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions". The Shops and Commercial Establishments Act being such a social-economic piece of legislation should be elaborately construed so as to advance the object of the Act and fulfill the importance to be achieved thereby. Cutting through this legal thicket of confusion what remains to be established are the beneficient intention and the benefits that flow from the legislation. While approaching the construction of a legislation having sociological relevance, judges would do well to remember the words of Chief Justice Charles Evans Hughes when he began the conference in the Yehovah 's Witnesses case, "I come up to this case like a skittish horse to a brass band".

17. Law, as Justice Holmes and Justice Cardozo used to emphasise, is an effective instrument of social engineering. It is not an ivory-tower abstraction. Law must be on speaking terms with life and socio-economic legislation has to be interpreted with a purposive approach. While Judges need not be less passive or more obstrusive personae, they could at least resist the temptation to put the clock back.

18. It is true that Courts cannot just pluck interesting issues out of the air and decide them for the benefit of future generations. When the Court's agenda changes, as it surely does in the area of industrial jurisprudence, the change is most frequently a delayed response to change in the nation's agenda. It is dictated by external forces - the actions of other branches. The Court is only rarely in the forefront of establishing new major legal standards, and its articulation of principles of social policy has typically been within the bounds of general public perception at the time. The story of the labour and the Constitution is illustrative.

19. Judges interpreting socially purposive legislation would do well to recall the words of Lord Denning in Nothman v. London Borough of Barner (1978)1 All. E.R. 1243(C.A.)):—

"Faced with glaring injustice, the judges are, it is said, impatient, incapable and sterile. Not so with us in this Court—Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it by reading words in, if necessary, so as to do what Parliament would have done had they had the situation in mind."

or the following observations in Seaford Court Estates Ltd. v. Ashes ((1949)2 All E.R. 155(C.A.)) quoted with approval by our Supreme Court in M. Pentiah (AIR 1961 SC 1107), "when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding out the intention of Parliament and then he must supplement the written words so as to give "force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out. He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases".

20. Tail piece:—The Government of the State of .Kerala is understood to have since issued a Notification bringing hospitals within the purview of the Act.