Remington Rand of India Ltd. Vs. Thiru
R. Jambulingam  INSC 168 (5 September 1974)
REDDY, P. JAGANMOHAN
CITATION: 1974 AIR 1915 1975 SCR (2) 17 1975
SCC (3) 254
Tamil Nadu Shops and Establishments Act, s.
41 (1) Scope of Commissioner's power in appeal.
Practice and Procedure-Appellant contending
that respondent is not protected workman before the Industrial Tribunal- Later
raising the plea in the court that he was a protected workman to oust the
jurisdiction of the Commissioner under the Tamil Nadu Shops &
Establishments Act-If can be allowed to raise the plea.
The respondent was a typewriter mechanic
under the appellant. He was charged with (1) having absented himself on a
particular day without leave and without sufficient cause, and (2) that he on
that day did some private repair work of a typewriter. A domestic enquiry was
held, the charges were found to be established and he was dismissed.
Since 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 a 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 the Commissioner under s. 41(2) of
the Tamil Nadu Shops and Establishments Act, and the Commissioner held the first
charge proved, but not the second charge and allowed the appeal holding that
the punishment of dismissal was disproportionate to the gravity of the offence
In appeal to this Court, the appellant
contended that (1) the respondent having claimed to be a protected workman
should have applied under s. 33A of the Industrial Disputes Act and his appeal
to the Commissioner under the Shops Act was misconceived, (2) the Commissioner
failed to consider some evidence, and (3) the Commissioner should not have
interfered with the order passed in the domestic enquiry.
Dismissing the appeal,
HELD : (1) (a) The appellant having contended
before the Industrial Tribunal that the respondent was not a protected workman
cannot be allowed to raise the plea of ouster of jurisdiction. [19C-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
Commissioner. [19D] (2) There is no basis for the contention that the Commissioner
ignored any evidence. [19G] (3) The jurisdiction of the Commissioner is an
appellate jurisdiction and is of wider scope unlike that of the Tribunal under
a. 33 of the Industrial Disputes Act. The Commissioner, was therefore,
competent to rehear the matter, take additional evidence if necessary, and come
to his own conclusion after a re-appreciation of the evidence. [19H- 20B]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1764 of 1972.
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. 8 of 1971.
3-251 Sup. CI/75 18 M. Natesan, M. L. Verma
and D. N. Gupta for the appellant.
M. K. Ramamurth and J. Ramamurthi for the
respondent, The Judgment of the Court was delivered by GOSWAMI, J. This appeal
by special leave is directed against the order of the Additional Commissioner
for Workmen's Compensation, Madurai (briefly the commissioner) in an appeal
before him lodged by the respondent against the order of his dismissal passed
by the appellant company on December 29, 1970.
The respondent was in employment under the
appellant company at the Tiruchirapalli Branch as a 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 secondly that he was on the
said day privately doing some repair work of a typewriter in the premises
belonging to the Eswari Institute of Commerce, Tiruchirapalli. The respondent
was directed to show cause on November 17, 1970 and was placed under
suspension. After receipt of Ms reply to the charge-sheet, a domestic enquiry
was held in which witnesses were examined. The respondent examined only himself
on his behalf and the appellant examined three witnesses including the Manager
of the Tiruchirapalli Branch and the company's doctor. The Enquiry Officer
found both the charges to be established and on receipt of his report the
management passed an order of dismissal.
Since an industrial dispute was pending at
the relevant time, the management simultaneously submitted an application to
the Industrial Tribunal, Madras, for approval of the order of dismissal under
section 33 (2) (b) of the Industrial Disputes Act, 1947 (briefly the I. D.
Act). The respondent took the plea before the Tribunal that he was a protected
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 a protected workmen. The
Tribunal further approved the order of dismissal by its order dated February
Prior to the termination of 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
Establishment, Act (briefly the Shops Act). The Commissioner after a 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 November 2, 1970, was established
while the second charge about doing repair work in the premise-, of Eswari
Institute of Commerce, Tiruchirapalli, was not proved. The Commissioner also
held that the order of dismissal was absolutely disproportionate, to the
gravity of the offence proved.
19 Mr Natesan, the learned counsel appearing
on behalf of the appellant, submits in the forefront of his argument that as a
special forum relief has been provided under the I.D. Act, namely, for making
an application under section 33(A) of that Act, the remedy resorted to the
respondent under the Shops Act must be held to be excluded. The learned counsel
submits that since the respondent claimed to be a acted workman before the
Tribunal, he should have made an application under section 33(A) for violation
of section 33 of the I.D. Act before it. The respondent having chosen a wrong
forum is precluded challenging the order of dismissal before the Commissioner,
It is rather extraordinary that even though
the Commissioner at he instance of the appellant had rejected the plea of protected
workman, the management now seeks to raise a plea of Custer of jurisdiction
before the Commissioner on the self-same ground. This, in our opinion, cannot
Besides, the appellant submitted to, the
jurisdiction of the Commissioner and had not raised any, objection to its
jurisdiction to hear the appeal. That being so we, have not allowed 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 section 35(2) of the I.D.
Act, an industrial dispute can be raised by
either party and an appropriate reference can be later made by the Government
under section 10 of the I.D. Act. The order passed under section 41 of the
Shops Act in appeal before the Commissioner is, on the other hand, binding on
the employer and the employee under sub-section (3) of hat section.
Since, however, we have not permitted the
learned counsel to argue the matter, it is not necessary to pursue this matter
The learned counsel next contends that the
Commissioner's order is perverse as he absolutely failed to consider the
evidence of the doctor a perusal of which would have certainly led to a
contrary conclusion. We were taken through the evidence of the doctor before
the Commissioner 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. 10
A.M. on November 2, 1970, he saw the respondent working on one of the
typewriters in the premises of the Eswari Institute of Commerce. There is,
therefore, absolutely 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 counter to the stand taken by the management.
Mr. Natesan also submitted that the
Commissioner should 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 finding perverse. The jurisdiction of the Commissioner is an appellate
jurisdiction and is of wider scope unlike that of the Tribunal in an
application under section 33 of the I.D. Act.
The Commissioner is 20 competent to rehear
the matter completely and come to its own conclusion after re-appreciation of
the evidence. There is no legal bar in entertaining additional evidence if that
is necessary in the interest of justice. The rule of law which has been 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 order of
dismissal passed in a domestic 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 ff. the learned counsel.
In the result the appeal fails and is
dismissed with costs.
V.P.S. Appeal dismissed.