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_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_ _a_ _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 a typewriter mechanic under the appellant. He was char·
ged with (1) having absented himself on a particular day without leave and with·
out sufficient cause, and (2) that he on that day did some private repair wort of
a typewriter. A domestic enquiry was held, the charges were found to be established 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 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 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 having claimed to be. a 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 a 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]
REMINGTON RAND OF INDIA LTD.
_v._
1HIRU R. JAMBULINGAM
_September_ 5, 1974
£1', JAOANMOHAN Rl!DDY AND P. K. GoswAMJ, JJ,]
(2) There is no basis for the contention that the. Commissioner illnored any
evidence. [190]
G (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 a rc-appre·
ciation of the evidence. [19H·20Bl
H
CXVn. APPELLA'I'r! JURJSDICTION : 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. & of 1971.
3-251 Sup. C1/75
18 SUPREME COURT REPORTS [1975] 2 s.c.R.
_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 appellant company on December 29, 1970.
The respondent was in employment under the appellant company
at the Tiruchiiapalli 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 secc111dly
that he was on the said day privately doing· some repair work of a type·
writer in the premises belonging to the Eswari Institute of Commerce,
Tiruchirapalli. The respondent was directed to show cause on Ncivember 17, 1970 and was placed under suspension. After receipt of his
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 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 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 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
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 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~
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REMINGTON RAND _v._ T. R. JAMBULINGAM _(Goswami,_ !.) 19
Mr Natesan, the learned counsel appearing on behalf of the appellant, submits in the forefront of his argument that as a 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 a
protected workman before tl!e Tribunal, he should have made an application under section 33 (A) for violation of secticlll 33 of the I.D. Act
before it. The respondent having chosen a 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
## c the instance of the appellant had rejected the plea of protected work
man, the management now seeks to raise a plea of CfUSter of .jurisdiction 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
D 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
E that section. Since, however, we have not permitted the learned counsel to argue the matter, it is not necessary to pursue this matter any
further.
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The learned counsel next contends that the Commissioner's order
is perverse as he absolutely failed io consider the evidence of the doctor a perusal of which would have certainly led to iJ contrary conclusion. 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.counter 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 finding 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
20 SUPREME COURT REPORTS 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 dismissal passed in a 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.
V.P.S. _Appeal_ _dismissed._
