The Management of Safire Theatre, Madras vs The Additional Commissioner for Workmen's Compensation, Madras and Others

Kailasam, C.J.—This petition is filed by the Management of the Safire Theatre against the Additional Commissioner for Workmen''s

Compensation and nine workmen for the issue of a writ of certiorari to quash the order of the Additional Commissioner for Workmen''s

Compensation in T. S. E. Appeals Nos. 75 to 88 of 1973.

Respondents 2 to 10 in the petition were employed in the Snack Bar and Maintenance section of the Safire Theatre. The management decided

to close down the Snack bar and the Maintenance section, and in pursuance of that decision, 14 workers, including respondents 2 to 10 were

retrenched with effect from 10-10-1972. The required formalities in effecting retrenchment under the Industrial Disputes Act were complied with,

hut the workers refused to receive the notice, pay and compensation etc, offered at the time of retrenchment. In October-November 1972, the

Union raised an industrial dispute before the Labour Officer challenging the retrenchment as illegal and unjustified. When the dispute was pending

before the Labour Department the workers filed separate appeals before the Additional Commissioners for Workmen''s Compensation under the

Tamil Nadu Shops and Establishments Act challenging the termination as being in contravention of Section 41 of that Act. The Additional

Commissioner held that the retrenchment was not bona fide and set aside the order of retrenchment on 14-5-1975. Against the said order, the

present writ petition is filed.

When this petition came up before Koshal J., the learned Judge felt that this is a fit case to be referred to a larger Bench, preferably a Full

Bench, in view of the situation that quite a few complicated questions of law arise for determination and are likely to arise in a very large number of

cases between, labour and its employers. Thus the matter is now before a Full Bench.

It was submitted that, after the introduction of Section 2-A of the Industrial Disputes Act, (hereinafter referred to as the Central Act), even

though there may be a dispute between an individual workman and the management regarding discharge, dismissal, retrenchment etc, the dispute

shall be deemed to be an industrial dispute and the only remedy available was under the Central Act and not under the provisions of Section 41 of

the Madras Shops and Establishments Act 1947 (hereinafter referred to as the Madras Act). In any event it was submitted that the provisions of

Section 41 of the Madras Act were repugnant to the provisions contained in Section 2-A of the Central Act and therefore Section 41 was

rendered ineffective by the rule envisaged in Article 254 of the Constitution of India. It was then submitted that even if it was held that both the

remedies under the Central Act and the Madras Act were available, the respondents could not have recourse to both of them and they having

elected to proceed under the Central Act, were not entitled to avail the remedy u/s 41 of the Madras Act It was further contended that, as the

provisions of the Central Act relating to payment of compensation in respect of retrenchment had been followed, the remedy u/s 41 of the Madras

Act was not available. These contentions were raised before the learned Judge and the points are referred to us for decision.

The Industrial Disputes Act 1947, Central Act 14 of 1947, bas been enacted by the Parliament for providing for investigation and settlement of

industrial disputes and for certain other purposes. The preamble states that whereas it is expedient to make provision for the investigation and

settlement of industrial disputes, and for certain other purposes, the Industrial Disputes Act has been enacted. Therefore, the object at the

legislation is for investigation and settlement of industrial disputes, The Act constituted under Chapter II the Authorities under the Act, namely,

Works Committee, Conciliation Officers, Boards of Conciliation, Courts of Inquiry, Labour Courts, Tribunals, National Tribunals etc. Chapter III

of the Act provided for references of disputes by the Government to Boards, Courts or Tribunals. Provision is also made for voluntary reference of

disputes to arbitration. Under Chapter IV, the procedure, powers and duties of the authorities are enumerated. Chapter V deals with strikes and

lock-outs. Chapter VA with lay off and retrenchment and Chapter VI with penalties for illegal strikes and lock-outs- It will this be seen that the

scope of the Act is to investigate and settle industrial disputes.

It is only a dispute or difference between the employers and employee, or between employees and workmen or between workmen and

workmen, which is connected with the employment or non-employment of the terms of employment or with the conditions of labour, of any person

that is considered as an industrial dispute u/s 2(k) of the Central Act. It was only collective disputes that were considered as industrial disputes and

not a dispute by an individual workman. But u/s 2-A, which was introduced on 1-12-1965 by Act 35 of 1965, any dispute between an individual

workman and his employer connected with his discharge, dismissal, retrenchment or termination, is deemed to be an industrial dispute.

The Madras Shops and Establishments Act 1947 is a Madras Act and the preamble of the Act states that, as it is expedient to provide for the

regulation of conditions of work in shops, commercial establishments, restaurants, theatres and other establishments and for certain other purposes,

the Act has been enacted. Chapter II of the Act deals with opening and closing hours of shops, daily and weekly hours of work in shops, spread

over of periods of work and the closing of shops and grant of holidays, while Chapter III deals with establishments other than shops, Chapter IV

prohibits employment of children and prescribes the working hours for young persons, Chapter V deals with health and safety. Chapter VI deals

with holidays with wages. Chapter VII deals with payment of wages, fixation of wage period, wages for overtime work, time of payment of wages

etc., Chapter VIII deals with appointment, powers and duties of inspectors. Chapter IX prescribes the penalties for offences. It will thus be seen

from the contents of this Act that the object of the enactment is to regulate the conditions of work in shops and commercial establishments, while

the Industrial Disputes Act is to make provision for the investigation and settlement of industrial disputes, which is a different field.

A Bench of this Court in Manager, United Commercial Bank Ltd. Vs. Commr. of Labour and Another, , has pointed out the difference between

the two enactments. Rajamannar C. J. has expressed his opinion that the two Acts are not in pari materia and that, though in one sense Section

41(2) of the Madras Act concerns a dispute between an employee and employer, an individual dispute falling under it would not by itself be an

industrial dispute falling within the scope of the Industrial Disputes Act. Viswanatha Sastri J. pointed out that Chapter 7 of the Madras Act, in

which Section 41 is found, deals with an individual dispute between an employer and an employee whose services have been terminated, in which

dispute the other employees have no interest and with which they need not or do not concern themselves, and that the Central Act 14 of 1947

deals with an industrial dispute, a collective dispute, a dispute between the employer on the one hand and the body of workmen or a section of that

body on the ofher. The learned Judge pointed out that Section 41(2) of the Madras Act gives a remedy to an individual employee by way of an

appeal against an improper termination of his services by his employer. Viswanatha Sastri J. has observed that there is no reason why an individual

employee should be deprived of this cheap and expeditious remedy merely because it might possibly form the subject of a reference along with

many other disputes to a Tribunal u/s 10 of the Central Act. The learned Judge has come to the conclusion that there is nothing in the Central Act

and no other reason has been shown to deprive an individual employee of his right to pursue the appeal which he had preferred long before the

reference to the Tribunal under the Central Act was made. The learned Judge was of the view that it would perhaps be a different matter if the

employer had taken his case before the Tribunal to which an industrial dispute had been referred under the Central Act and got an adverse

decision against him from the Tribunal, before he filed an appeal u/s 41(2) of the Madras Act. Thus the view taken by this Court is that the remedy

u/s 41 of the Madras Act is not barred to a worker, though he might also have a remedy if an industrial dispute is raised by other workers joining

and the matter being referred by the Government The Court has also expressed its view that if a reference has already been made and an adverse

decision was given, the remedy u/s 41(2) of the Madras Act would not be available.

Since the above decision was rendered, there are certain changes, namely, Section 2-A has been introduced in the Industrial Disputes Act, by

Act 35 of 1965 on 1-12-1965 and a proviso to Section 25J(1) has been added by Section 17 of Act 36 of 1964 on 19-12-1964. The impact of

these two amendments will have to be closely examined to determine the question whether the remedy u/s 41 of the Madras Act is still available to

an individual employee and, if so, to what extent.

u/s 2-A of the Industrial Disputes Act, any dispute between a workman and his employer arising out of his discharge, dismissal etc, is deemed

to be an industrial dispute. The result of this amendment is that an individual dispute, which was not an industrial dispute, has now been made an

industrial dispute, enabling an individual employee to raise an industrial dispute and en titling a reference u/s 10(1) of the Central Act. The basis of

the decision of a Bench of this Court in Manager, United Commercial Bank Ltd. Vs. Commr. of Labour and Another, , referred to above has

been taken away. It was held in that decision that as an individual dispute was not an industrial dispute, the remedy was open u/s 41 of the Madras

Act. In fact Rajamannar C. J. has observed that, when an individual dispute between a dismissed workman and the employer becomes an

industrial dispute between the workmen on the one hand and the employer on the other, it may be called a collective dispute, which cannot be the

subject-matter of an appeal u/s 41 of the Madras Act. This observation would indicate the effect of the amendment u/s 2-A of the Central Act,

which converts an individual dispute into an industrial dispute. The remedy u/s 41 of the Madras Act is barred in such a case.

At this stage, it is useful to refer to the proviso to Section 25-J(1) of the Industrial Disputes Act. While Section 25J(1) states that the provisions

of Chapter V-A shall have effect notwithstanding anything inconsistent therewith contained in any other law (including Standing Orders) made

under the Industrial Employment (Standing Orders) Act, 1946, the proviso states that where under the provisions of any other Act or rules etc. a

workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act,

the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in

respect of other matters under this Act. This proviso, as already stated, was introduced in 1964, long after the decision referred to above was

rendered. Though Section 25-J provides that Chapter V-A shall have effect notwithstanding anything inconsistent therewith contained in any other

law, the provision preserves the more favourable benefits to the worker under any other Act. The effect of this proviso would be that it u/s 41 of

the Madras Act, a worker is entitled to more favourable benefits, those are preserved. It may also be noted that Section 25-J(2) makes it clear

that nothing contained in Chapter V-A shall be deemed to affect the provisions of any other law for the time being in force in so far as that law

provides for the settlement of industrial disputes. It also requires that the rights and liabilities of employers and workmen in so far as they relate to

lay off and retrenchment shall be determined in accordance with the provisions of Chapter V-A. The result of the proviso so far as the question

under consideration is concerned, is that, if a workman is entitled to more benefits under any other Act, he would be entitled to them. The question

therefore is whether Section 41 of the Madras Act is more favourable. The answer is difficult for when a reference is made u/s 11-A of the

Industrial Disputes Act, the Labour Court, or the Tribunal, if it is satisfied that the order of discharge or dismissal is not justified, may, by its award,

set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit, or give such

other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may

require. These are far reaching powers when compared to the relief provided for u/s 41 of the Madras Act. Section 41(1) provides-

No employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable

cause and without giving such person at least one month''s notice or wages in lieu of such notice.....

The remedy that is available under this section therefore is that the services of a person employed continuously for a period of not less than six

months shall not be dispensed with except for a reasonable cause and without the prescribed notice. While the authority u/s 41 of the Madras Act

is empowered to decide whether the dispensing with the services is for a reasonable cause or not, he has not got the powers of directing

reinstatement, or to give any other relief including the award of lesser punishment, as provided for u/s 11-A of the Central Act. The relief provided

for u/s 41(1) of the Madras Act cannot be said to be more favourable to the worker. But before a worker can get relief u/s 11-A of the Central

Act, the dispute will have to be referred by the Government u/s 10. u/s 10(1) the power to refer vests with the Government and the Government

may refer, or refuse to refer. It is quite possible that though an individual dispute has become an industrial dispute by virtue of Section 2A, the other

workers may not be interested in that dispute and they may even be hostile and not agreeing with the individual worker, who seeks to make a

reference. In such a case, it is likely that the Government may refuse to make a reference, in which case, the individual workman would be without

a remedy. The result is, if there is no reference, the relief provided for u/s 41 of the Madras Act is more beneficial, but if a reference is made u/s 10

of the Central Act, the relief u/s 41 of the Madras Act is not more beneficial. As pointed out earlier, the proviso to Section 25-J(1) saves the

provisions of any other Act whereby the workman is entitled to benefits in respect of any matter which are more favourable to him than those to

which he would be entitled under the Industrial Disputes Act. Such a situation arose before a Bench of this Court in Manager, United Commercial

Bank Ltd. Vs. Commr. of Labour and Another, which was already referred to Rajamannar C. J. observed thus-

We do not think that anything turns on the actual making of a reference. The learned counsel for the petitioner perceived the difficulty of

contending that the right of appeal u/s 41(2) of the Madras Act would he available if there was no reference under Act LIV (54) of 1949, but such

right of appeal would not exist or would cease to be effective the moment a reference was made.

It may be strange that we are forced to come to a conclusion which the learned Judges were not prepared to countenance because of the changes

effected by Section 2-A and the proviso to Section 25-J(1) of the Central Act.

Full Bench of the Patna High Court in The Managing Director, Indian Oil Corporation Limited and Others Vs. C.D. Singh and Others,

considered the effect of Section 2-A of the Central Act on the Bihar Shops and Establishments Act. The facts of that case are as follows:--One

Singh was dismissed after a domestic enquiry on 3-9-1965, He filed an application under the Industrial Disputes Act before the Assistant Labour

Commissioner questioning the correctness of his dismissal. Conciliation failed. The Government made a reference by notification dated 31-3-1970

and referred the industrial dispute whether the dismissal of the petitioner was proper and justified, While reference was still under consideration,

Singh filed an application u/s 26(2) of the Bihar Shops and Establishments Act before the Presiding Officer, Labour Court, Ranchi, on 18-12-

1969. The petition was filed out of time, but the delay was excused by an ex parte order. The application to set aside the ex parte order was

dismissed. A further application for rejection of the application made u/s 26 (2) was also rejected. A writ petition was filed praying that the order

of the Presiding Officer, excusing the delay be quashed, It was submitted that with the amendment and insertion of Section 2-A in the Central Act,

the legislative field was fully occupied by the Parliamentary enactment and Sections 25 and 26 of the Bihar Act became inoperative and the Labour

Court had no jurisdiction to entertain the petition. It was further submitted that as Singh had asked for the same relief before two competent

Courts, he must be asked to elect his remedy. It was also submitted that as Singh had invoked the jurisdiction of the authorities under the Cenrtral

Act, before filing a complaint under the Bihar Act, the Labour Court must stay the proceedings under the Bihar Act pending adjudication of the

industrial dispute, Section 26 of the Bihar Act is in pari materia with Section 41 of the Madras Act and it requires that no employer shall dismiss an

employee who has been in continuous employment for not less than six months without reasonable cause and without giving such employee at least

one month''s notice or one month''s wages in the lieu of such notice. The court held that there is no repugnancy between the provisions of the Bihar

Act and those of the Industrial Disputes Act as the subject-matter of the Bihar Act is different from the subject-matter of the Central Act and the

field of operation is distinct and separate and there is no actual collision or conflict between Section 26 of the Bihar Act with any provisions of the

Central Act. The Court also held that there is no repugnancy arising within the meaning of Article 254(1) of the Constitution. The Court further held

that the proceedings u/s 26 of the Bihar Act are independent and original proceedings where the competent authority has to arrive at its own

finding on the evidence laid before it and not on the evidence adduced in a domestic enquiry. We have reached the same conclusion as the Full

Bench of the Patna High Court and hold that there is no repugnancy between the provisions of Section 41 of the Madras Act and those of the

Industrial Disputes Act as the subject-matter of the Madras Act is different from that of the Central Act and the field of operation is distinct and

separate. There is also no repugnancy arising within the meaning of Article 254(1) of the Constitution.

The Patna High Court proceeded to observe that the fundamental difference between Section 26 of the Bihar Act and the scheme of reference

under the Industrial Disputes Act is that no workman falling within the definition under the Central Act has a right to ask for a reference by the

appropriate authority. But on being dismissed, the Bihar Act gave a right to an employee to complain about the dismissal and to obtain redress.

The court pointed out that the objects of the two proceedings under the two Acts were entirely different and there was no reason to hold that

either of the proceedings must give way to the other.

We feel it difficult to accept the position that both the remedies could be available side by side. When once an individual dispute by virtue of

Section 2-A is considered as an industrial dispute and is referred by the Government, an elaborate procedure as to how the reference has to be

disposed of is provided for under the Industrial Disputes Act. Such a contingency is not provided for under the Madras Act, The Madras Act is

limited in its scope in that it can only decide whether the dispensing with the services was with or without reasonable cause. When a reference is

made, the dispute is considered as a collective dispute and the remedy provided for is for the entire body of workers. The Patna decision does not

refer to the provisions of Section 25-J(1) of the Central Act; it concludes thus:--

If the dismissal of Sr. C. D Singh ...is not interfered with by the Tribunal ....in the reference made u/s 10 of the Central Act, it will be in

consequence of following the well established procedure of solving an industrial dispute and if the same respondent''s dismissal is set aside by the

Labour Court in the proceeding u/s 26 of the Bihar Act, it will be as a result of the procedure laid down by the section, without any reference to a

dispute in the nature of an industrial dispute,

We find ourselves unable to go so far, for we feel that when once an individual dispute which is treated as an industrial dispute is referred, it

becomes a collective dispute in every sense of the word and thereafter the procedure that can be followed can only be under the Industrial

Disputes Act. The effect of the proviso to Section 25-J(1) is that the provisions of any other Act would be saved only if it is more beneficial. After

a reference is made, See. 41 of the Madras Act ceases to be more beneficial and as such would not be saved by the proviso to Section 25-J(1).

Though it is rather incongruous that the application of Section 41 of the Madras Act would depend upon whether there is a reference or not, we

feel that no other conclusion is possible, Any other conclusion, in our view, would be inconsistent with the provisions of Section 2-A and the

proviso to Section 25-J(1). The result would be that both the remedies under the Madras Act and the Industrial Disputes Act would be available

to an individual workman. If he avails himself of the provisions of the Madras Act and if he succeeds, tie will get a declaration that the employer

dispensed with his services without a reasonable cause. Once such a decision is given by the authority u/s 41(1) of the Madras Act, u/s 41(3) that

decision would be final and binding on both the employer and the person employed. The rights thus adjudicated would become final and all other

proceedings would become infructuous. But, if before a final decision is rendered u/s 41 of the Madras Act, the grievance of the individual worker

is referred u/s 10 of the Central Act by the Government, no further proceedings can be continued u/s 41 of the Madras Act.

14A. In this writ petition, the Union raised an industrial dispute before the Labour Officer challenging the retrenchment as illegal and as the

compromise talks failed, the Union demanded reinstatement of the workers. At that stage, when the dispute was pending, the workers filed

appeals u/s 41 of the Madras Act by about 25-4-1973. The industrial dispute was referred by the Government regarding the non-employment of

the 14 workers and it was taken on file as I. D. 150 of 1973. The workers'' claim therein was dismissed for default on 29-3-1975. The fact of

dismissal was intimated and the authority u/s 41 was requested to drop the proceedings. The appeals u/s 41 were allowed on 15-4-1975, that is

after the order in I. D. 150 of 1973. Later on 2-7-1975, the Union filed I.A. 249 of 1975 for restoration of the claim. But the claim was

withdrawn by the Union in I. D. 150 of 1973 and was dismissed, The position therefore is that after the claim in I. D. 150 of 1973 was dismissed

on 20-3-1975, the order u/s 41 of the Madras Act was passed on 14-5-1975. The application by the Union for restoration of the claim in I. D.

249 of 1975 was also withdrawn on 19-7-1975. The position therefore is that the appeals u/s 41 of the Madras Act were pending when the

industrial dispute was decided and the claim was dismissed for default on 29-3-1975 and it became final as the petition for restoration was

dismissed. The reference of the dispute to the Labour Court by the Government was on 13-9-1973. According to the conclusion we have arrived

at, after 13-9-1973, no further proceedings is available to the workers u/s 41 of the Madras Act. Though the appeals were actually filed on 21-4-

1973 u/s 41 of the Madras Act, they would not be pursued after 13-9-1973.

The learned counsel for the petitioner submitted that the industrial dispute was dismissed for default and the award was not in accordance with

law as the award could not be passed ex parte and that it could be only on evidence. In support of his contention he referred to the award printed

in the Tamil Nadu Government Gazette, Supplement to Part II Section 2, dated 15-1-1975 at page 22, where it is stated that ""the workmen and

their representatives were absent. The dispute is therefore dismissed. An award is passed accordingly."" The learned counsel referred to Rule 48 of

the Tamil Nadu Industrial Disputes Rules which provides that if without showing sufficient cause any party to the proceedings fails to attend or to

be represented, the court may proceed as if the party had duly attended or had been represented. This, according to the learned counsel, would

indicate that the award must be on the facts and not passed ex parte. It is unnecessary for us to go into this contention for, in our view, the remedy

u/s 41 of the Madras Act cannot be pursued after a reference has been made by the Government u/s 10 of the Central Act.

We would now refer to certain decisions cited at the Bar. The learned Advocate General referred to the decisions of the Supreme Court in

Chemicals and Fibres of India Ltd. Vs. D.G. Bhoir and Others, and submitted that, though u/s 2-A, dispute between an individual workman and

his employer connected with discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute, the deeming should be

taken to be for a limited application. In the case cited, the point that arose for determination was whether, when a reference is pending before a

Labour court in respect of a matter u/s 2-A, any strike by the other workers would be illegal. u/s 23 of the Industrial Disputes Act, no workman

who is employed in any industrial establishment shall go on strike in breach of a contract and no employer of any such workman shall declare a

lock out. The Supreme Court held that the prohibition of strikes during the pendency of proceedings before a Labour Court u/s 23 was, in the Act

as originally enacted, confined only to disputes between the employer and the general body of employees and not to individual workman and that it

is in this context that Section 23 should be interpreted. The Supreme Court observed that while there is a justification for preventing a strike when

a dispute between the employer and the general body of workmen is pending adjudication, it would be too much to expect that the Legislature

intended that a lid should be put on all strikes just because the case of a single workman was pending. In the circumstances, it was held that giving

a limited application to Section 2-A, the pendency of a dispute between an individual workman as such and the employer did not attract the

provisions of Section 23, The above decision docs not help to determine the question at issue for the special reasons given by the Supreme Court

for not applying Section 2-A would not be applicable to the present case.

In The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, the Supreme Court laid down the principles

applicable to the jurisdiction of !he civil court in relation to an industrial dispute at page 459 of the report. The Supreme Court held that if the

industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get

an adjudication under the Act. In the case of a dismissal of an unsponsored workman which in view of the provision of law contained in Section 2-

A of the Act will be an industrial dispute even though it may otherwise be an individual dispute the civil courts will have hardly an occasion to deal

with those types of cases. This decision is not applicable to the facts of the present case. It was dealing with the jurisdiction of a civil court in

relation to an industrial dispute and not with the rights conferred under a different Act. which is governed by the provisions of Section 23J(1) of the

Industrial Disputes Act.

In Remington Rand of India Limited Vs. Thiru R. Jambulingam, the Supreme Court was dealing with an appeal by a workman u/s 41 of the

Madras Act when proceedings under the Industrial Disputes Act were pending. He was dismissed after an enquiry into certain charges. An

industrial dispute was pending and the management obtained the permission of the Industrial Tribunal u/s 33(2)(b) of the Act. However, the

workman in the meanwhile filed an appeal u/s 41(2) of the Madras Act and the Additional Commissioner set aside the order of dismissal. The

management approached the Supreme Court and it held that the jurisdiction of the Commissioner was wider unlike that of the Industrial Tribunal in

an application u/s 33 of the Industrial Disputes Act in interfering with the order of dismissal. The argument that was advanced before the Supreme

Court was that as a special forum for relief bad been provided under the Industrial Disputes Act for making an application u/s 33A of the Act, the

remedy resorted to by the workman under the Shops Act must be held to be excluded. It was also contended that since the workman claimed to

be a protected workman before the Tribunal, he should have made an application u/s 33A for violation of Section 33 of the Act before it and that

he having chosen a wrong forum was precluded from challenging the order of dismissal before the Commissioner. Repelling this contention, the

Supreme Court held that as the management submitted to the jurisdiction of the Commissioner and had not raised any objection to its jurisdiction

to hear the appeal, it would not allow the plea of jurisdiction to be raised before it for the first time.

On a careful consideration of the cases cited and the various provisions of the two Acts, we answer the questions referred to by Koshal J., as

follows:--

Section 2-A of the Industrial Disputes Act does not fully bar the remedy u/s 41 of the Madras Shops and Establishments Act 1947. If a

decision is rendered u/s 41(2) of the Madras Act before the Government had made a reference u/s 10 of the Industrial Disputes Act the decision

would he final between the parties. But, before the conclusion of the enquiry u/s 41 of the Madras Act, if the Government makes a reference u/s

10 of the Industrial Disputes Act, the pending proceedings u/s 41 of the Madras Act cannot be continued.

On the second question we hold that both the remedies are available, But if a reference has been made before the conclusion of the appeal u/s

41 of the Madras Act, the proceedings under the Industrial Disputes Act will have to be followed.

In view of our decision that after a reference had been made under the Industrial Disputes Act, the provisions of Section 41 of the Madras Act

would not be applicable, the dispensing with the services of the workmen could not be challenged u/s 41 of that Act.

On the fourth question we hold that Section 41 of the Madras Act is not repugnant to the provisions contained in Section 2-A of the Central

Act and is not rendered ineffective by the provisions of Article 254 of the Constitution of India.

In the result, the writ petition filed by the management is allowed and a writ of certiorari will issue and the order of the Additional

Commissioner for Workmen''s Compensation in T.S.E. Apps. Nos. 75 to 88 of 1973 is quashed. There will be no order as to costs.