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Chandra (T.P.) Vs. Commissioner for Workmen's Compensation and Anr. (02.04.1956 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1956)IILLJ497Mad
AppellantChandra (T.P.)
RespondentCommissioner for Workmen's Compensation and Anr.
Cases ReferredBasantlal v. Emperor
Excerpt:
..... 157 of 1955. i held that the commissioner would have to decide first whether the petitioner was a person employed within the meaning of section 2(12) of the act and the question whether section 4(1)(a) would bar the petitioner from claiming any relief under section 41(2) of the act would have to be considered only if the petitioner satisfied the statutory definition of 'person employed' in section 2(12) of the act. 3. as i understand the order of the additional commissioner, though he held that the petitioner also satisfied the statutory definition of employer in section 2(5) of the act, it was on the ground that the petitioner was a person employed in the establishment at madras in a position of management, that the additional commissioner came to the conclusion that section (4)(1)(a)..........157 of 1955. i held that the commissioner would have to decide first whether the petitioner was a person employed within the meaning of section 2(12) of the act and the question whether section 4(1)(a) would bar the petitioner from claiming any relief under section 41(2) of the act would have to be considered only if the petitioner satisfied the statutory definition of 'person employed' in section 2(12) of the act. the order of the additional commissioner dated 5 may 1954 was set aside. the additional commissioner proceeded with the enquiry thereafter. in his order dated 1 november 1955 the additional commissioner recorded the following findings:--(1) the petitioner was a person employed as defined in section 2(12)(iii) of the act.(2) as he had charge of the business of the madras.....
Judgment:
ORDER

Rajagopalan, J.

1. The second respondent, Kemp & Co. Ltd. had its head office at Bombay and a branch at Madras. The petitioner was in the service of the second respondent and he held the post designated branch manager. It was claimed by the second respondent that the petitioner was in charge of the branch at Madras. The second respondent terminated the services of the petitioner with effect from 28 May 1953 after giving him a month's salary in lieu of notice and also an additional payment ex gratia. The petitioner preferred an appeal to the Commissioner for Workmen's Compensation, Madras, under Section 41A(2) of the Madras Shops and Establishments Act XXXVI of 1947. Those proceedings have had a chequered career. In the proceedings before the Additional Commissioner the preliminary objection of the management that the appeal was not competent was overruled on 5 May 1954. The validity of that order was successfully challenged by the second respondent in W.P. No. 157 of 1955. I held that the Commissioner would have to decide first whether the petitioner was a person employed within the meaning of Section 2(12) of the Act and the question whether Section 4(1)(a) would bar the petitioner from claiming any relief under Section 41(2) of the Act would have to be considered only if the petitioner satisfied the statutory definition of 'person employed' in Section 2(12) of the Act. The order of the Additional Commissioner dated 5 May 1954 was set aside. The Additional Commissioner proceeded with the enquiry thereafter. In his order dated 1 November 1955 the Additional Commissioner recorded the following findings:--

(1) The petitioner was a person employed as defined in Section 2(12)(iii) of the Act.

(2) As he had charge of the business of the Madras branch, was its manager and acted in general management and control of it, he should be regarded also as an ' employer' as defined in Section 2(5) of the Act.

(3) As the petitioner was a person acting in the general management or control of the establishment he was also a person employed in a position of management and therefore he came within the scope of Section 4(1)(a) of the Act.

On these findings the Additional Commissioner held that the petitioner could not claim the statutory right of appeal conferred by 41(2) of the Act.

2. It was the validity of the order dated 1 November 1955 that the petitioner challenged by his application under Article 226 of the Constitution for the issue of a writ of certiorari.

3. As I understand the order of the Additional Commissioner, though he held that the petitioner also satisfied the statutory definition of employer in Section 2(5) of the Act, it was on the ground that the petitioner was a person employed in the establishment at Madras in a position of management, that the Additional Commissioner came to the conclusion that Section (4)(1)(a) of the Act precluded the petitioner from claiming the statutory right under Section 41(2) of the Act. I do not therefore propose to consider whether as a statutory employer the petitioner, without any reference to Section 4(1)(a), could be denied the right for which Section 41(2) of the Act provided.

4. If the findings of the Additional Commissioner were to stand that the petitioner was a person employed and further that he was a person employed in the position of management in the establishment at Madras, no further question could really arise. The Additional Commissioner had jurisdiction to decide these issues but since these were really in the nature of jurisdictional issues, even the correctness of the decision of these issues is open to challenge in proceedings under Article 226 of the Constitution. It is well settled that a statutory authority cannot give itself jurisdiction by deciding wrongly a jurisdictional issue. Nor could a statutory authority decline to exercise a jurisdiction by an erroneous decision on a question of fact on which would depend the presence or absence of jurisdiction.

5. The question that I have to determine at this stage is whether the Additional Commissioner was right in holding that the petitioner was employed in position of management in an establishment. That the Madras branch of the second respondent firm was a commercial establishment as defined by the Act was common ground both in proceedings in W.P. No. 157 of 1955 and now. I am not expressing any opinion on the question whether if the petitioner was a statutory employer as defined in Section 2(5) of the Act, he could also be a person employed in relation to the same establishment of the branch at Madras within the meaning of Section 2(12) of the Act. If that factor is excluded from consideration it should be obvious that the petitioner satisfied the definition of 'person employed 'in Section 2(12) of the Act. Therefore, the only question that remains is, was he a person employed in a position of management in the establishment at Madras.

6. Learned counsel for the petitioner referred to Gibson v. Barton 10 L.R. 329, where Blackburn, J. observed:

We have to say who is to be considered a manager. A manager would be, in ordinary talk, a person who has the management of the whole affairs of the company, not an agent, who is to do a particular thing or a servant who is to obey orders, but a person who is entrusted with power to transact the whole of the affairs of the company.

That observation, it should be remembered, was with reference to the application of the provisions of the Companies Act, 1862, in England. It should also be noticed that this principle was accepted by Parliament in England when it subsequently gave statutory definition of the expression manager. That also underlay the definition of 'manager' in the Indian Companies Act, 1913. Manager in Section 2(9) of the Act is defined as

a person who, subject to the control and direction of the directors, has the management of the whole affairs of a company and includes a director or any other person occupying the position of a manager by whatever name called and whether under a contract of service or not.

It was based upon this definition that in Basantlal v. Emperor 43 I.C. 791 a Division Bench of the Punjab Chief Court held that a person in charge of a branch of a bank was not a manager within the meaning of Section 2(9) of the Indian Companies Act. The question now at issue, what constitutes a position of management within the meaning of Section 4(1)(a) of the Act, cannot obviously be decided with reference to the definition of 'manager' in another enactment, for example, the Indian Companies Act, 1913. It is not, therefore, necessary for me to refer to the provisions of the Indian Companies Act as it has been recently enacted. It was not necessary for me to express any opinion in my judgment in W.P. No. 157 of 1955 on the question, whether a position of [management within the meaning of Section 4(1)(a) of the Act was something less than the general management or control of an establishment within the meaning of Section 2(5) of the Act; it is not necessary to decide that question in these proceedings either; without expressing any final opinion on that question, I can indicate that I am still of the view that a position of management within the meaning of Section 4(1)(a) of the Act involves something less than a general management or control of an establishment within the meaning of Section 2(5) of the Act.

7. Still the question remains, was the petitioner (sic) of management in the establishment at Madras. It was not the contention of the learned Counsel for the petitioner that the factors referred to by the Additional Commissioner in his order dated 1 November 1955 were not relevant. The Additional Commissioner, no doubt, held that the petitioner was the manager and acted in the general management or control of the establishment within the meaning of Section 2(5) of the Act, whether that involves more than what Section 4(1)(a) provides for, it should be obvious that the Additional Commissioner was right in his view that a person acting in general management and control of an establishment is also a person employed in a position of management. There was certainly evidence on record on which the 'Additional Commissioner could come to the conclusion that the manager ship of the Madras branch which the petitioner held was a position of management within the meaning of Section 4(4)(a) of the Act. As I said, the relevancy of the factors the Additional Commissioner listed in his order dated 1 November 1955 was not challenged. Learned Counsel for the petitioner complained that the factors, on which the same Additional Commissioner had relied in his order dated 5 May 1954 for coming to the opposite conclusion that the petitioner was not employed in a position of management, were not taken into account in his order dated 1 November 1955. No doubt they were not listed seriatim in his order dated 1 November 1955, but I am unable to hold that the Additional Commissioner ignored those features in the evidence on record. On the evidence considered as a whole he was entitled to come to the conclusion that the petitioner was employed in a position of management in the establishment at Madras. That finding is not liable to be set aside merely on the ground that the Additional Commissioner recorded in his order only the factors that proved that the petitioner was employed in a position of management. That the petitioner had to carry out the orders of the head office at Bombay and that the powers of the petitioner were to a considerable extent circumscribed are not enough to sustain the plea that his position was not a position of management in the branch at Madras which was a commercial establishment as defined by the Act. Nor am I able to accept that evidence on record clearly established that only the manager at Bombay could be deemed to be a person in a position of management even with reference to the commercial establishment at Madras.

8. The Additional Commissioner had jurisdiction to decide whether the petitioner was in a position of management. Neither the assumption of that jurisdiction nor the exercise thereof appears to have been vitiated in this case. I see no justification to reject the finding of the Additional Commissioner that the petitioner was a person employed in a position of management of the commercial establishment at Madras within the meaning of Section 4(1)(a) of the Act. As I said, if that finding stands, the validity of the order of the Additional Commissioner that the petitioner was not entitled to claim the statutory right of appeal under Section 41(2) of the Act cannot be challenged.

9. The rule is discharged. The petition is dismissed with costs of respondent 2. Counsel's fee Rs. 100.


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