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K.K. Chary, Representing International Business Corporation Vs. D. Joseph, Represented by State Labour Union and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Limitation
CourtChennai High Court
Decided On
Reported in(1977)2MLJ331
AppellantK.K. Chary, Representing International Business Corporation
RespondentD. Joseph, Represented by State Labour Union and ors.
Excerpt:
.....will have to be allowed on the short ground of limitation which the additional commissioner for workmen's compensation, has failed to consider. , 18th september, 1969 the appeal filed on 5th november, 1969 is clearly barred by limitation because it is beyond thirty days. if, therefore, according to the learned counsel, the appeal itself was clearly barred by limitation the petitioner will not be entitled to computation of any monetary benefits, and therefore, the order made in c. , from 18th october, 1969, the appeal filed on 5th november, 1969 is well within time. a reading of the above rule would clearly establish that the appeal will have to be filed, within thirty days from the date of service of the order terminating the services with the employer. the date of service of the..........learned counsel for the workman submits that the proper way to construe rule 9 would be, 20 days of limitation must be reckoned from the actual termination and not against the proposed, termination. looked at from this point of view, rule 9 is ultra vires of section 41. if from the actual termination ox when the termination takes effect 30 days period of limitation is reckoned viz., from 18th october, 1969, the appeal filed on 5th november, 1969 is well within time. he also does not admit that the workman was working for 12 days in the transferee concern. if, therefore, the appeal itself was competent, based on that appeal any monetary computation made would be valid.3. section 41 says:no employer shall dispense with the services of a person employed continuously for a period of.....
Judgment:
ORDER

S. Mohan, J.

1. These writ petitions will have to be allowed on the short ground of limitation which the Additional Commissioner for Workmen's Compensation, has failed to consider. The following facts require to he noted for a proper appreciation of the point of limitation. The services of the respondent in W.P. No. 3007 of 1972 who was employed as a clerk from 1st August, 1967 were sought to be terminated by a notice dated 12th September, 1969 and the said notice was served upon the workman on 18th September, 1969. He preferred an appeal on 5th November, 1969 under Section 41 of the Shops and Establishments Act to the Additional Commissioner for Workmen's Compensation, but unfortunately this point was not taken note of and therefore, there is no decision on that. Mr. T.R. Rajagopalan, learned Counsel draws my attention to Section 41 and also to Rule 9 framed under the Shops and Establishments Act and submits that admittedly reckoning from the date of service viz., 18th September, 1969 the appeal filed on 5th November, 1969 is clearly barred by limitation because it is beyond thirty days. He also raised the other submissions that when the workmen himself had admitted that he was transferred to work and actually worked for more than 12 days, there can be no question of any agreement as held by the Additional Commissioner for Workmen's Compensation. If, therefore, according to the learned Counsel, the appeal itself was clearly barred by limitation the petitioner will not be entitled to computation of any monetary benefits, and therefore, the order made in C.P. No. 326 of 1971 is liable to be set aside.

2. Mr. Prasad, learned Counsel for the workman submits that the proper way to construe Rule 9 would be, 20 days of limitation must be reckoned from the actual termination and not against the proposed, termination. Looked at from this point of view, Rule 9 is ultra vires of Section 41. If from the actual termination ox when the termination takes effect 30 days period of limitation is reckoned viz., from 18th October, 1969, the appeal filed on 5th November, 1969 is well within time. He also does not admit that the workman was working for 12 days in the transferee concern. If, therefore, the appeal itself was competent, based on that appeal any monetary computation made would be valid.

3. Section 41 says:

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, provided, however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held, for the purpose.

(2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.

(3) The decision of the Appellate Authority shall be final and binding on both the employer and the person employed.

The prescription referred to in this section is contained in Rule 9 which reads as follows:

The Commissioner for Workmen's Compensation shall be the authority for the purpose of hearing appeals under Sub-section (2) of Section 41 and any such appeal shall be preferred by the person employed within thirty days from the date of service of the order terminating the services with the employer, such service to be deemed effective if carried out either personally or if that be not practicable, by prepaid registered post to the last known address when the date of such service shall be deemed to be the date when the letter would arrive in ordinary course of post: Provided that an appeal may be admitted after the said period of thirty days if the appellant satisfies the Appellate Authority that he had sufficient cause for not preferring the appeal within that period.

A reading of the above Rule would clearly establish that the appeal will have to be filed, within thirty days from the date of service of the order terminating the services with the employer. This is unambiguous in its terms. The date of service of the order admittedly in this case is 18th September, 1969. The appeal filed on 5th November, 1969 would be clearly beyond that period of thirty days. I am unable to see how the Rule could be said to be ultra vires. Section 41 merely states that 'within such time as may be prescribed. While making such a prescription, it is open to the Legislature to fix any period of limitation to be reckoned from a particular date. Therefore, having regard to the scope and language of Rule 9, it cannot be contended that only when the termination takes effect, the appeal will have to be filed. Since the appeal is against the order terminating the services, whatever may be the date on which the order takes effect, once a notice has been served it is incumbent, upon the person employed to file the appeal within thirty days from the date of service of that order of termination. This is a case in which this point has been completely lost sight of by the Additional Commissioner for Workmen's Compensation. Therefore, I have no other option but to set aside the order and remit it to the Additional Commissioner for Workmen's Compensation, for fresh disposal on the question of limitation. In doing so, it is open to him to consider whether the delay could be condoned and whether there was justifiable cause for the workman concerned to file the appeal belatedly. About this, I say nothing.

4. I also make it clear that inasmuch as I have remanded the matter, I am not dealing with the merits of the other submissions.

5. Since the computation in C.P. No. 326 of 1971 dated 26th December, 1973 is based upon the order of the Additional Commissioner for Workmen's Compensation dated 31st January, 1971 which has been set aside, the monetary benefits awarded under C.P. No. 326 of 1971 will also stand set aside. Accordingly both the writ petitions will stand allowed. No costs.


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