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PETITIONER: REMINGTON RAND OF INDIA LTD.

       Vs.

RESPONDENT: THIRU R. JAMBULINGAM

DATE OF JUDGMENT05/09/1974

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. REDDY, P. JAGANMOHAN

CITATION:  1974 AIR 1915            1975 SCR  (2)  17  1975 SCC  (3) 254

ACT: 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.

HEADNOTE: 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 proved. 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]

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(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]

JUDGMENT: 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 18, 1971. 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

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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  appli- cation  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, says Natesan. 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 pinion, cannot be  allowed. 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 any further. 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

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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. 21