REMINGTON RAND OF INDIA LTD. versus THIRU R. JAMBULINGAM

REMINGTON RAND OF INDIA LTD.

1HIRU R. JAMBULINGAM September 5, 1974 £1', JAOANMOHAN Rl!DDY AND P. K. GoswAMJ, JJ,]

Tamil Nadu Shops and EstabUshment•· Act, s. 41(1)-.SCope of Commlsslo11tr's power In appeal.

Practice and Procedure-Appellant contending that respondent 11 not prottc· led workman before the lndU.rtria/ Tribunal-Later raising the plea In the court that he was protected- workman to oust the' Jurisdiction of the Comm/&1/vntr 11nder the Tamil Nad11 Shops &: Establishments Act-If can be allowed to raise the plea.

. The respondent was typewriter mechanic under the appellant. He was char· ged with (1) having absented himself on particular day without leave and with· out sufficient cause, and (2) that he on that day did some private repair wort of typewriter. domestic enquiry was held, the charges were found to be estab-lished and he was dismissed. Sinco an industrial dispute was then pending, the appellant applied to the Industrial Tribunal for approval of the dismissal order under s. 33(2) (b) of the Industrial Disputes Act. The respondent contended before the Tribunal that he was protected workman and that therefore the appellant should have sought prior permission under s. · 33(3). The Tribunal rejected the respondent's plea and approved the dismissal order; Meanwhile, the respondent had appealed to tho Commi99ioncr under ~. ·41(2) of the Tam.ii Nadu Shops and Establishments Act, and tho Commissioner held the first charge eroved, but not the second charge and allowed the appeal holdillg that tho puDJShment of dis· missal was disproportionate to· the sravity of the offence proved.

In appeal to this Court, the al!llOllant contended that ( 1 ) the rspondent hav-E ing claimed to be. protected womnan should have applied under s. 33A of the I ndtutrial Dispule!J Act and his appeal to the Commissioner under· the Shopi Act was misconceived, (2) tho Commissioner failed to considu some evidenco, and ( 3) the Commissioner should not have interfered with the order passed in the domestic enquiry.

Dismissing the appeal,

Hl!tD: (I) (a) Tbo appellant having contended before the Industrial Tribunal that ·the ·respondent was not protected workman cannot be allowed to raiso the plea of ouster of jurisdiction. [190-D] ·

. (b) Further, the appellant had not raised any objection to the jurisdiction of the Commissioner to hear the appeal but submitted to the juriSdiction of the Com· missioner. [190]

(2) There is no basis for the contention that the. Commissioner illnored any evidence. [190]

(3) The jurisdiction of the Commissioner is an appellate jurisdiction and Is of wider scope unlike that of the Tribunal under s. 33 of the Industrial Disputes Act. The Commissioner, was therefore, competent to rehear the matter, tato ad· ditional evidence if ~. and come to his own conclusion after rc-appre· ciation of the evidence. [19H·20Bl

CXVn. APPELLA'I'r! JURJSDICTION : Civil Appeal No. 1972.

1764 of

· Appeal by Special Leave from .the Judgment and Order dated the 16th November, 1971 of the Additional Commissioner for Workman's Compensation, Madurai in T.N.S.E. Appeal No. & of 1971.

3-251 Sup. C1/75

M. Natesan, M. L. Verma and D. N. Gupta fqr the appellant.

M. K. Ramamurthi and J. Ramamurthi for the respondent.

The Judgment of the C-Ourt was delivered by

GosWAMI, J. This appeal by special leave is directed against the order of the Additional Commissioner for Workmen's C-Ompensation, Madurai (briefly the Cctlllmissioner) in an appeal before him lodged by the respondent ·against the order of his· dismissal passed by the appel-lant company on December 29, 1970.

The respondent was in employment under the appellant company at the Tiruchiiapalli Branch as typewriter mechanic since 1950. The charges against him were that he was' absent on November 2, 1970, without leave and without sufficient cause and also secc111dly that he was on the said day privately doing· some repair work of type· writer in the premises belonging to the Eswari Institute of Commerce, Tiruchirapalli. The respondent was directed to show cause on Ncivem-ber 17, 1970 and was placed under suspension. After receipt of his reply to the charge-sheet, domestic enquiry was held in which wit-nesses were examined. The respondent examined only himself on his behalf and the appellant examined three witnesses including the Mana-ger of the Tiruchirapalli Branch and the company's doctor. The En-quiry. Officer found bcith ·the charges to be established and on receipt of bis report the management passed an order of dismissal.

Since an industrial dispute was pending at the relevant time, the management sim'!l!taneously submitted· an application to the ll)dustrial Tribunal, Madras, for approval of the order of dismissal under section 33(2.)(b) of the Industrial Disputes Act, 1947 (briefly the l.D. Act). The respondent. took the plea before the Tribunal that he was pro-tected workman and hence his dismissal was illegal in the absence of prior permission from the Tribunal under section 33(3) of the· I.D. Act. The Tribunal, however, refused to accept this plea and held that he was not protected workmen~ The Tribunal further approved the order elf dismissal by its order dated February 18, 1971.

Prior ~ the termination ctf the proceedings before the Tribunal on February 18, 1971, the respondent had. filed an appeal before the Commissioner under section 41 (2) of the Tamil Nadu Shops and Establishments Act (briefly the Shops Act), The C-Onimissicner after perusal of all the documents produced by the parties before him took some additional evidence and after hearing the parties set aside the order of dismissal by the impugned order of November 16, 1971. The Commissioner held that the first charge namely that he was absent without leave on Ncivember 2, 1970, was establ:ished while the second charge about doing repair work in the premises of Eswari Institute of Commerce, Tiruchirapalli, was not proved. Tille Commissioner also held that the order of dismissal was absolutely disprCIJ?Ortionate 1D the pavity of the offence proved~ ·

Mr Natesan, the learned counsel appearing on behalf of the appel-lant, submits in the forefront of his argument that as special forum for relief has been provided under the I.D. Act, namely, for making an applicatiqn under section 33(A) of that Act, the remedy resorted to by the respondent under the Shops Act must be held to be excluded. The learned counsel submits that since the respondent claimed to. be protected workman before tl!e Tribunal, he should have made an appli-H cation under section 33 (A) for violation of secticlll 33 of the I.D. Act before it. The respondent having chosen wrong forum is precluded from challenging the order of dismissal before the Commissiqner, says Mr. Natesan.It is rather extraordinary that even though the Commissioner at the instance of the appellant had rejected the plea of protected work-man, the management now seeks to raise plea of CfUSter of .jurisdic-tion before the Commissioner on the self-same ground. This, in our opinion, cannot be allowed. Besides, the appellant submitted tc. the jurisdiction of the Commissioner and had not raised any objection to its jurisdiction to hear the. appeal. That being so we have not allciwed the learned counsel to raise the plea of jurisdiction before us in this Court for the first time in this appeal. We may, however, observe that while even an order of approval is passed under secticlll 35 (2» of the .--I.D. Act, an industrial dispute can be raised by either party and an appropriate reference can bC later made by the Government under section 10 of the l.D. Act. The order passed under section 41 of the Shops Act in appeal before the Commissioner is, on the other hand, binding CID the employer and the employee under sub-section ( 3) of that section. Since, however, we have not permitted the learned coun-sel to argue the matter, it is not necessary to pursue this matter any further.

The learned counsel next contends that the Commissioner's order is perverse as he absolutely failed io consider the evidence of the doc-tor perusal of which would have certainly led to iJ contrary conclu-sion. We were taken through the evidence of the doctor before the Ccrnmissioner and we find that he stated during cross-examination that "the Branch Manager Mr. Padmanabhan called on me at about 11 a.m. on 2-11-1970"; We find that the case of Padmanabhan was that at about 11.l 0 A.M. on November 2, 1970; he saw the respondent work-ing on one of the typewriters in the premises of the Eswari Institute of Commerce. There is, therefore, absc1lutely no foundation for the contention advanced by the learned counsel that the Tribunal ignored the evidence of the doctor. On the other hand his evidence ran.coun-ter to the stand taken by the management.

Mr. Natesan also submitted that the Commissioner shciuld not have interfered with . the order passed in the domestic enquiry since there was so violation of the principles of natural justice nor was the find-H ing perverse. The jurisdiction of the Commissioner is an appellate jurisdiction and is c~ wider scope unlike that of the Tribunal in an application under section 33 of the l.D_ Act. · The Commissioner is

Ll97SJ 2 s.c.R.

competent to rehear the matter completely and come to its own con-clusion after re-appreciation of the ~vi~ence. There is nel legal bar in entertaining additional evidence if that is necessary in the interest of justice. . The rule <>f law which has bcien laid down by this Court with regard to jurisdiction of the Industrial Tribunal. in an. application under section 33 of the I.D. Act in interfering with the orde1' of dis-missal passed in dc:anestic enquiry, is not apPlicable to the case of an appeal before the Commissioner provided for under section 41 of the Shops Act. We are, therefore, unable to accept the submission o! the learned couosel. In the result the appeal fails and is dismissed with costs.

Appeal dismissed.