Joseph Sam vs Caltex India Ltd., Madras and Another

Rajagopala Ayyangar, J.—This petition raises for consideration a very short but interesting point regarding the construction and scope of

Section 51 of the Madras Shops and Establishments Act (XXXVI of 1947).

The petitioner Joseph Sam was a Depot operator under the employment of Messrs. Caltex India Ltd. (First respondent). While so, towards the

end of October 1954, he was served with a notice of certain charges and directed to show cause why he should not be dismissed from service.

The petitioner submitted his explanation and as desired by him an oral enquiry was held by the management on 4-11-1954. The enquiring officer

found the charges made out and on 1-12-1954 the petitioner was dismissed from the service of the first respondent. Against this order of dismissal

the petitioner filed an appeal under'' Section 41 (2) of the Madras Shops and Establishments Act which was taken on file and. heard by the

Additional Commissioner for Workmen''s Compensation. Section 41 (2) under which this appeal was filed runs in these terms:

(2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there

was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer."" The

employer who was served with the notice of this appeal raised a preliminary objection to its maintainability on the ground that the petitioner was

not ""a person employed"" to whom the provisions of the Act applied. In particular the first respondent called in aid Section 4 (1) (a) of the Act

which enacted:

Nothing contained in this Act shall apply, to (a) persons employed in any establishment in a position of management.''''

On this plea being raised the appellate authority -- the Additional Commissioner for Workmen''s Compensation -- heard evidence as to the nature

of the duties which the petitioner had to perform under the first respondent and sustained the objection for mulated by the management holding that

the petitioner was ""employed in a position of management"". On this finding he had necessarily to hold that the appeal before him by the petitioner

was incompetent and he so decided.

It is this order of the Additional Commissioner for Workmen''s Compensation that is challenged as ultra vires by the petitioner before me.

Mr. Nambiar, who appeared in support of the petition did not question the correctness of the conclusion of the Additional Commissioner that

the petitioner did occupy a position of management but the point raised by him was that the Additional Commissioner had no jurisdiction to

determine this issue but that he had, immediately the issue was raised, to refer it to the Commissioner of Labour for the latter''s adjudication, and

then abide by the decision of that officer. This contention was based upon the terms of Section 51 of the Act which runs in these terms:

If any question arises whether all or any of the provisions of this Act apply to an establishment or to a person employed therein or whether

Section 50 applies to any case or not, it shall he decided by the Commissioner of Labour and his decision thereon shall be final and shall not be

liable to be questioned in any Court of Law.

The very short question which I have to consider is whether the words with which the section opens ""If any question arises whether all or any of

the provisions of this Act apply to an establishment or to a person employed therein"" are apt to cover every case where the question arises as

incidental to the determination of matters within the jurisdiction of the functionaries. Before entering on the discussion regarding this question, it is

necessary to mention that this objection to the jurisdiction of the Additional Commissioner was not raised before him but the petitioner led evidence

before the authority and was desirous of obtaining an adjudication favourable to himself. In these circumstances the question naturally arises as to

whether the petitioner is not estopped from challenging the jurisdiction in these proceedings. But in view however of the conclusion that I have

reached on the merits of the case, I do not find it necessary to deal with this point.

No doubt the words ""If any question arises.....""are very wide and if they were to be considered in vacuo might lead to the construction sought to

be placed upon it by learned counsel for [the petitioner. But the provision occurs in an enjactment which deals with a multitude of situations. There

are various provisions, which it is unnecessary to detail, enacted by the Statute and designed for the benefit of workmen and any infraction of the

rights conferred on workmen involves penalties for which a prosecution lies. It would therefore be within the contemplation of the enactment that

the employer or it might well be, the workmen also might seek the assistance of the Commissioner of Labour for the purposes of informing

themselves about their position under the Statute. Such cases might involve disputes between the employer and the person employed. Section 51

would certainly apply to such cases and if an adjudication were had at the Commissioner''s hands that would finally determine the two questions

which are referred to in Section 51, namely (1) whether the establishment is one to which the Act applies, and (2) whether the provisions of the

Act apply to any person employed therein. The question however might arise not in that form but we shall say ""before a Magistrate when an

employer is being prosecuted for an offence for the contravention of the provisions of the Act u/s 45."" This section enacts:

45 (I). Any employer who contravenes any of the provisions of Sections 7, 9 to 11, 13 to 23, 25, 26, 29 to 41 and 47 shall be punishable to

twenty-five rupees and for a second or subsequent offence, with fine which may extend to two hundred and fifty rupees....

(2) Whoever contravenes the provisions of Section 8 shall be punishable for a first offence with fine which may extend to ten rupees, and (or a

second or subsequent offence with fine which may extend to one hundred rupees.

If for instance an employer is prosecuted u/s 45, there is nothing in that provision to indicate that, when once a plea is raised that the Act is

inapplicable to the establishment or that the person in regard to whom the offence was said to have been committed was not the one within the

protection of the Act, the Magistrate was instantly deprived of his jurisdiction to determine this matter but that he had to refer this question to the

Commissioner of Labour for the letter''s adjudication u/s 51. In my opinion, the answer to this question must clearly be in the negative. When a

prosecution is launched before a Magistrate, he is acting in the discharge of his duties as a Magistrate appointed under the Criminal Procedure

Code and unless there was something which specifically deprived him of jurisdiction to determine the issue of fact or law before him, which was

material for establishing a guilt of the accused, it would be his jurisdiction, and I would add his duty, to determine it. If this were the answer to a

case of prosecution u/s 45, that reasoning would equally apply to and vest the jurisdiction in the appellate authority hearing an appeal u/s 41 (2)

notwithstanding that this authority is one created by this Act and functioning under it. There is no limitation on the power of this appellate authority

to determine the relevant matters in issue before it and in the absence of any provision in Section 41 making it subject to the provisions of Section

51, I am unable to read Section 51 as an overriding provision which deprives the other authorities from their right to determine matters incidental to

that enquiry. I would only add that if the provision in Section 50 were intended to achieve result contended for by learned counsel for the

petitioner, its language would have directed a reference to the Commissioner of Labour when any question arose before any authority or Tribunal.

I am clearly of the opinion that the jurisdiction of the Additional Commissioner to determine the status of the petitioner was not ousted by Section

51 of the Act.

The writ petition fails and is dismissed. The rule is discharged and there will however be no order as to costs.