Rajagopala Ayyangar, J.
1. This is a petition for the issue of a writ of certiorari calling for an order of the Labour Appellate Tribunal of India, Bombay sitting at Madras, and to quash the same.
2. The petitioners are the management of an establishment known as Palace Theatre, Salem. This petitioner along with eleven other talkies houses in Salem had a dispute between themselves and their employees and this dispute was referred to the industrial tribunal at Coimbatore for adjudication. The industrial tribunal made an award on 5 July 1951 and it was accepted by the Government who published it in their official gazette on 17 July 1951. Against this award of the tribunal, the petitioner-management filed an appeal to the Labour Appellate Tribunal, appeal No. 292 of 1951. There was also an appeal by the employees which was numbered as appeal No. 246 of 1951, During the pendency of these appeals respondent 2 Govindan, who was on the staff of the establishment of the petitioner's talkies house, was dismissed from service on 28 August 1951. This employee thereupon filed an appeal under Section 41 of the Madras Shops and Establishments Act (XXXVI of 1947), to the Labour Commissioner and this order of dismissal was set aside on the merits and Govindasami was reinstated on 24 November 1951.
3. This employee farther brought this dismissal to the notice of the Labour Appellate Tribunal by a complaint filed by him, application No. 124 of 1952, under Section 23 of the Labour Appellate Tribunal Act, 1950, and the Tribunal, by their order, dated 25 July 1952, ordered the reinstatement of the employee with a direction that 'he shall receive all his back pay, allowances, etc., up to the date of his restoration as if he had never been removed from service.'
4. It is this order under Section 23 of the Labour Appellate Tribunal Act that is challenged in this writ as illegal and beyond the jurisdiction of the Labour Appellate Tribunal.
5. The first contention that is raised on behalf of the petitioner-management is that the Tribunal had no jurisdiction to entertain the petition under Section 23 Inasmuch as on the date of the dismissal of the respondent, that is, on 28 August 1951, no appeal was pending before the Tribunal as required under Section 22 of Act XLVIII of 1950. The Tribunal say in the order.
an appeal has been filed by the employees before our Tribunal prior to the date of dismissal and therefore there had been a contravention of Section 22 of our Act.
6. It is clear from this, as also from the admitted fact that notice of the appeal No. 246 of 1951 which was served on the management shows that it had been signed by the appellant on 16 August 1951. Thus it is obvious that the appeal was pending on the date of the dismissal of the respondent. There is, therefore, no basis for this contention raised on behalf of the petitioner, of the Tribunal to have gone into the merits of the dismissal and pronounced whether the order of dismissal was proper or not and that consequently the order of the learned Appellate Tribunal was vitiated by an error apparent on the face of the record. There is more than one answer to this contention. The first is that the Tribunal has proceeded on the merits of the dismissal since they have clearly held that there has been no enquiry by the management before the dismissal was effected. The tribunal say:
A chargesheet had been given to the applicant to which he had given an explanation, but no enquiry had been held and the applicant had not been given an opportunity of questioning any witnesses who might have been called on behalf of the management. We cannot bat hold that in the absence of such an enquiry, the dismissal was improper.
7. It is, therefore, not correct to say that the Tribunal has not proceeded to enquire into the merits of the complaint but has proceeded merely on some preliminary point. An enquiry with regard to the procedure adopted prior to dismissal is as much an enquiry into the merits as an enquiry into the truth of the allegations contained in the charge against the employee. Further under Section 23 of the Labour Appellate Tribunal Act, 1950, a contravention of the provisions of Section 22 justifies an interference by the Tribunal under Section 23. Section 22(b) provides that no employer shall discharge or punish whether by dismissal or otherwise any workmen concerned in such appeal save with the express permission in writing of the Appellate Tribunal. Where such permission is not obtained and the dismissal is effected during the pendency of the appeal, it is open to the Tribunal without considering any other matter to direct reinstatement of the discharged workmen, but as I have said before in the present case they have pronounced upon the merits of the procedure followed by the employer in effecting the discharge of the respondent. I do not see even on the construction contended for by the learned Counsel for the petitioner how the order of the Tribunal is vitiated by any error.
8. The next ground upon which the order is impugned is that the present management of the petitioner's establishment came into existence only on 28 April 1952 and that for the act of the previous management the Tribunal had no power to direct reinstatement of the worker in July 1952. I do not see any substance in this contention either. The present management must be deemed to have taken over the business with all its liabilities and obligations towards its employees and therefore, if an employee had a right which he could assert as against the old management, that management cannot by merely transferring their assets get rid of the claims and rights of the workman.
9. The provisions of Section 10 of the Industrial Disputes Act, 1947, though they are not applicable in terms, indicate a principle which will govern the present case.
10. Lastly it is alleged that the employee having appealed to the Labour Commissioner under the provisions of the Shops and Establishments Act and obtained relief under Section 41 of the said Act cannot prefer a complaint to the Labour Appellate Tribunal under Section 23 of the Labour Appellate Tribunal Act. In this connexion reference is made to the observations of Viswanatha Sastri, J., in United Commercial Bank, Ltd., v. Commissioner of Labour : (1951)ILLJ1Mad . I do not, however, consider that the principle of election of remedies has any application to the facts of the present case. For this principle to be applied, the grounds of relief and not merely the reliefs must be identical. The -Labour Commissioner acting under the Madras Shops and Establishments Act has to be satisfied that on the merits the order of dismissal was improper. But in regard to the Labour Appellate Tribunal the main factor is that the dismissal or discharge took place during the pendency of the appeal and without obtaining the previous approval of the Appellate Tribunal. The grounds for relief open in the two cases are so disparate that the rules as to the election of remedies can have no application to the remedies available under the two enactments. The writ petition consequently fails and is dismissed with costs of respondent 2 which I fix at Rs. 50.