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The Management of Safire theatre, Madras vs. the Additional Commissioner for Workmen's Compensation, Madras and Ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 1141 of 1976
Judge
Reported inAIR1978Mad14; (1977)IILLJ312Mad
ActsTamil Nadu Shops and Establishments Act, 1947 - Sections 41, 41(1) and 41(3); Industrial Disputes Act, 1947 - Sections 2A, 10, 25J(1) and 31; Tamil Nadu Shops Act, 1972; Constitution of India - Article 254 and 254(1)
AppellantThe Management of Safire theatre, Madras
RespondentThe Additional Commissioner for Workmen's Compensation, Madras and Ors.
Appellant AdvocateP.R. Govindaswami Iyer and ;P. Vedavalli, Advs.
Respondent AdvocateAdv. General, ;Govt. Pleader, ;M.G.R. Prasad, ;Row and ;Reddy, Advs.
DispositionPetition allowed
Cases ReferredIn Remington Rand of India Limited v. R. Jambulingam
Excerpt:
industrial establishment--retrenchment of employees--remedy--tamil nadu shops and establishments act (xxxvi of 1974), section 41--industrial disputes act (xiv of 1947), section 10--which act will apply--whether any conflict exists between the two--principles considered. ;the management of a theatre had a maintenance branch and was running a refreshment bar. subsequently it closed the two units and served notices on the employees thereof to the effect that their services were being terminated by retrenchment. the union of the employees had the matter referred to the labour court as an industrial dispute through the government. in the meanwhile, some of the workers filed separate appeals before the additional commissioner for workmen's compensation under the tamil nadu shops and.....1. 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 1973.2. 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, fourteen workers, including respondents 2 to 10 were retrenched with effect from 10th october, 1972. the required formalities in effecting retrenchment under the industrial disputes act were complied with, but the workers refused to receive the notice, pay and.....
Judgment:
1. 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.

2. 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, fourteen workers, including respondents 2 to 10 were retrenched with effect from 10th October, 1972. The required formalities in effecting retrenchment under the Industrial Disputes Act were complied with, but 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 14th May, 1975. Against the said order, the present writ petition is filed.

3. 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.

4. 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 under Section 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 under Section 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.

5. The Industrial Disputes Act, 1947, Central Act XIV of 1947, has 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 of 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 lockouts, Chapter V-A with lay-off and retrenchment and Chapter VI with penalties for illegal strikes and lock-outs. It will thus be seen that the scope of the Act is to investigate and settle industrial disputes.

6. It is only a dispute or difference between employers and employees, or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person that is considered as an industrial dispute under Section 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 under Section 2-A, which was introduced on 1st December, 1965 by Act XXXV 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.

7. 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 prescribe 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.

8. A Bench of this Court in Manager, U.C. Bank v. Labour Commissioner , has pointed out the difference between the two

enactments. Rajamannar, CJ., has expressed his opinion that the two Acts are not in pan materia and that, though in one sense Section 41(2) of the Madras Act concerns a dispute between an employee and an 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 VII 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 XIV 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 other. 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 from the subject of a reference along with many other disputes to a Tribunal under Section 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 employee 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 under Section 41(2) of the Madras Act. Thus the view taken by this Court is that the remedy under Section 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 had already been made and an adverse decision was given, the remedy under Section 41(2) of the Madras Act would not be available.

9. Since the above decision was rendered, there are certain changes, namely, Section 2-A has been introduced in the Industrial Disputes Act by Act XXXV of 1965, on 1st December, 1965 and a proviso to Section 25-J(1) has been added by Section 17 of Act XXXVI of 1964 on 19th December, 1964. The impact of these two amendments will have to be closely examined to determine the question whether the remedy under Section 41 of the Madras Act is still available to an individual employee and if so, to what extent.

10. Under Section 2-A of the Industrial Disputes Act, any dispute between a workman and his employer arising out 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 entitling a reference under Section 19(1) of the Central Act. The basis of the decision of a Bench of this Court in Manager, U.C. Bank v. Labour Commissioner , 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 under Section 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 certainly cannot be the subject-matter of an appeal under Section 41 of the Madras Act. This observation would indicate the effect of the amendment under Section 2-A of the Central Act, which converts an individual dispute into an industrial dispute. The remedy under Section 41 of the Madras Act is barred in such a case.

11. At this stage, it is useful to refer to the proviso to Section 25-J(1) of the Industrial Disputes Act. While Section 25-J(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 proviso preserves the more favourable benefits to the worker under any other Act. The effect of this proviso would be that if under Section 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 is 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 under Section 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 workman 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 under Section 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 pre-scribed notice. While the authority under Section 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 under Section 11-A of the Central Act. The relief provided for under Section 41(1) of the Madras Act cannot be said to be more favourable to the worker. But before a worker can get relief under Section 11-A of the Central Act, the dispute will have to be referred by the Government under Section 10. Under Section 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 2-A, 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 under Section 41 of the Madras Act is more beneficial, but if a reference is made under Section 10 of the Central Act, the relief under Section 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, U.C. Bank v. Labour Commissioner , 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 under Section 41(2) of the Madras Act would be available if there was no reference under Act (LIV 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.

12. A Full Bench decision of the Patna High Court in Indian Oil Corporation Limited v. C.D. Singh (1972) 2 L.L.J. 395, 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 3rd September, 1969. 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 31st March, 1.970 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 under Section 26(2) of the Bihar Shops and Establishments Act before the Presiding Officer, Labour Court, Ranchi, on 18th December, 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 under Section 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 Central 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 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 under Section 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.

13. 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 work-man 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.

14. We feel it difficult to accept the position that both the remedies could be available side by side. When once art 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 Sri C.D. Singh, is not interfered with by the Tribunal, in the reference made under Section 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 under Section 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 be only 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, Section 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, he will get a declaration that the employer dispensed with his services without a reasonable cause. Once such a decision is given by the authority under Section 41(1) of the Madras Act, under Section 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 in fructuous. But, if before a final decision is rendered under Section 41 of the Madras Act, the grievance of the individual worker is referred under Section 10 of the Central Act by the Government, no further proceedings can be continued under Section 41 of the Madras Act.

15. 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 under Section 41 of the Madras Act by about 25th April, 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. No. 150 of 1973. The workers' claim therein was; dismissed for default on 29th March, 1975. The fact of dismissal was intimated and the authority under Section 41 was requested to drop the proceedings. The appeals under Section 41 were allowed on 15th April, 1975, that is after the order in I.D. No. 150 of 1973. Later on 2nd July, 1975 the Union filed I.A. No. 249 of 1975 for restoration of the claim. But the claim was withdrawn by the Union in I.D. No. 150 of 1973: and was dismissed. The position therefore is that after the claim in I.D. No. 150 of 1975 was dismissed on 29th: March, 1975, the order under Section 41 of the Madras Act was passed on 14th May, 1975. The application by the Union for restoration of the claim in I.A. No. 249 of 1975 was also withdrawn on 19th July, 1975. The position therefore is that the appeals under Section 41 of the Madras Act were pending when the industrial dispute was decided and the claim was dismissed for default on 29th March, 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 13th September, 1973. According to the conclusion we-have arrived at, after 13th September, 1973, no further proceeding is available to the workers under Section 41 of the Madras Act. Though the appeals were actually filed on 21st April, 1973 under Section 41 of the Madras Act, they would not be pursued after 13th September, 1973.

16. 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 14th May, 1975 at page 22, where it is stated that "the workmen and their representative 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 unnecessarily for us to go into this contention for, in our view, the remedy under Section 41 of the Madras Act cannot be pursued after a reference has been made by the Government under Section 10 of the Central Act.

17. We would now refer to certain decisions cited at the Bar. The learned Advocate-General referred to the decision of the Supreme Court in Chemicals and Fibres of India Limited v. D.G. Bhoir and submitted that, though under Section 2-A, 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 under Section 2-A, any strike by the other workers would be illegal. Under Section 23 of the Industrial Disputes Act, no workman who is employed in any industrial establishment shall go on strike in breach of 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 under Section 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 does not help to determine the question at issue for the special reason given by the Supreme Court for not applying Section 2-A would not be applicable to the present case.

18. In Premier Automobiles Limited v. K.S. Wadke , the Supreme Court laid down the principles applicable to the jurisdiction of the 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 un-sponsored 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 25-J(1) of the Industrial Disputes Act.

19. In Remington Rand of India Limited v. R. Jambulingam , the Supreme Court was dealing with an appeal by a

workman under Section 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 under Section 33(2)(b) of the Act. However, the workman in the meanwhile filed an appeal under Section 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 under Section 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 had been provided under the Industrial Disputes Act for making an application under Section 33-A of that 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 under Section 33-A 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.

20. 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:

21. Section 2-A of the Industrial Disputes Act does not fully bar the remedy under Section 41 of the Madras Shops and Establishments Act, 1947. If a decision is rendered under Section 41(2) of the Madras Act before the Government had made a reference under Section 10 of the Industrial Disputes Act, the decision would be final between the parties. But, before the conclusion of the enquiry under Section 41 of the Madras Act, if the Government makes a reference under Section 10 of the Industrial Disputes Act, the pending proceedings under Section 41 of the Madras Act cannot be continued.

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

23. 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 under Section 41 of that Act.

24. 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.

25. 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 Work-mens' Compensation in T.S.E. Appeals Nos. 75 to 88 of 1973 is quashed. There will be no order as to costs.


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