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Remington Rand Of India Limited v. Thiru R. Jambulingam .
Factual and Procedural Background
The respondent had been employed as a typewriter mechanic at the Tiruchirapalli branch of the appellant-company since 1950. Two charges were levelled against him: (1) unauthorised absence on 2 November 1970, and (2) performing private repair work that same day at the Eswari Institute of Commerce. A domestic enquiry followed, during which the management examined three witnesses and the respondent examined himself. Both charges were found proved and the respondent was dismissed on 29 December 1970.
Because an industrial dispute was then pending, the company sought approval of the dismissal under Section 33(2)(b) of the Industrial Disputes Act, 1947. The Industrial Tribunal, Madras, held that the respondent was not a “protected workman” and approved the dismissal on 18 February 1971.
Before that approval order, the respondent had already filed an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act before the Additional Commissioner for Workmen’s Compensation (“the Commissioner”). After reviewing the record, taking additional evidence, and hearing the parties, the Commissioner (i) found the first charge proved, (ii) found the second charge unproved, and (iii) concluded that dismissal was grossly disproportionate. He set aside the dismissal by order dated 16 November 1971.
The appellant obtained special leave and appealed to the Supreme Court, challenging the Commissioner’s decision.
Legal Issues Presented
- Whether the existence of a remedy under Section 33(A) of the Industrial Disputes Act ousted the Commissioner’s jurisdiction to entertain an appeal under Section 41 of the Tamil Nadu Shops and Establishments Act.
- Whether the Commissioner’s conclusions were perverse because he allegedly ignored the company doctor’s testimony.
- Whether, absent any breach of natural justice, the Commissioner was justified in re-appreciating the evidence and interfering with the findings of the domestic enquiry.
Arguments of the Parties
Appellant’s Arguments
- The respondent’s proper course was to file an application under Section 33(A) of the Industrial Disputes Act; choosing the Shops Act forum therefore excluded the Commissioner’s jurisdiction.
- The Commissioner’s order was perverse because it failed to consider decisive evidence given by the company doctor.
- Where a domestic enquiry is free from procedural irregularity and its findings are not perverse, an appellate authority should not interfere.
The opinion does not detail the respondent’s specific counter-arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court’s Reasoning and Analysis
Jurisdictional objection. The Court declined to entertain the appellant’s argument that the Shops Act remedy was excluded. The company had submitted to the Commissioner’s jurisdiction without objection and attempted to raise the point for the first time before the Supreme Court. Moreover, an order under Section 41(3) of the Shops Act is binding on both employer and employee, whereas approval under Section 33(2)(b) of the Industrial Disputes Act does not preclude subsequent industrial adjudication.
Alleged perversity of the Commissioner’s findings. The Court examined the doctor’s testimony and found it did not support the management’s case; indeed it contradicted the Branch Manager’s account. Therefore the contention that the Commissioner ignored crucial evidence was unfounded.
Scope of the Commissioner’s appellate power. The Court emphasised that an appeal under Section 41 of the Shops Act involves a full rehearing. The Commissioner may re-appreciate evidence and accept additional material. Constraints applicable to a Tribunal dealing with an application under Section 33 of the Industrial Disputes Act do not apply in this appellate forum.
Holding and Implications
Appeal dismissed with costs.
The Commissioner's order setting aside the dismissal stands confirmed, thereby reinstating the respondent’s entitlement to relief. The judgment affirms the broad appellate jurisdiction conferred on the Commissioner under the Tamil Nadu Shops and Establishments Act and signals that parties cannot later dispute that forum’s competence after having participated without objection. No new precedent of wider application was announced beyond this statutory interpretation.
P.K 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.
2. 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 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 both the charges to be established and on receipt of his report the management passed an order of dismissal.
3. 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 ID 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 ID Act. The Tribunal, however, refused to accept this plea and held that he was not a protected workman. The Tribunal further approved the order of dismissal by its order dated February 18, 1971.
4. 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 Establishments 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 premises 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.
5. 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 ID Act, namely, for making an application 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 the Tribunal, he should have made an application under Section 33(A) for violation of Section 33 of the ID Act before it. The respondent having chosen a wrong forum is precluded from challenging the order of dismissal before the Commissioner, says Mr Natesan.
6. It is rather extraordinary that even though the Commissioner at the instance of the appellant had rejected the plea of protected workman, the management now seeks to raise a plea of ouster of jurisdiction before the Commissioner on the self-same ground. This, in our opinion, 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 33(2) of the ID 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 ID 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 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.
7. 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 November 2, 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.
8. Mr Natesan also submitted that the Commissioner should not have interfered with the order passed in the domestic enquiry since there was no 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 ID Act. The Commissioner is competent to rehear the matter completely and come to its own conclusion after reappreciation 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 ID 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 of the learned counsel.
9. In the result the appeal fails and is dismissed with costs.
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