JOSEPH SAM Vs. CALTEX INDIA LTD

JUDGEMENT

(1.) THIS is an appeal from the Judgment of Rajagopala Ayyangar, J. , dismissing the petition filed by the appellant under Article 226 of the Constitution of India for the issue of a writ of certiorari, quashing the order passed by the Additional Commissioner for Workmen's Compensation, Madras, on 1 November 1955. The appellant was a depot operator in the employment of Caltex (India), Ltd. On 1 December 1954 he was dismissed from the service of the company after an enquiry by an officer of the company deputed for the purpose. Against this order of dismissal, the appellant filed an appeal under Section 41 (2) of the Madras Shops and Establishments Act, which was disposed of by the Additional Commissioner for Workmen's Compensation by the order referred to above. Before the Additional Commissioner, a preliminary point was raised on behalf of the management that the appellant was not a person, to whom the provisions of the Act applied, because he fell within the category described in Clause (a) of Section 4 (1) of the Act, namely, "persons employed in any establishment in a position of management. " This plea was accepted by the Additional Commissioner. He found, on an examination of the evidence adduced by the parties, that the appellant was employed in a position of management. On this finding, the Additional Commissioner had no other alternative but to dismiss the appeal preferred by the appellant before us. It is to quash this order that the writ petition, out of which this appeal arises, was filed.

(2.) NEITHER before the learned Judge, Rajagopala Ayyangar, J. , nor before us, the finding of the Additional Commissioner that the appellant was employed in a position of management was challenged. The only ground on which the order of the Additional Commissioner was sought to be quashed was that he had no jurisdiction to determine the issue, because, under Section 51 of the Act the question could be decided only by the Commissioner of Labour. The learned Judge held that the ground was not sustainable, and that the jurisdiction of the Additional Commissioner to determine the status of the appellant, that is, whether he fell within Section 4 (1) (a) of the Act, was not ousted by Section 51 of the Act. Hence this appeal.

(3.) THE only question which falls for decision in this case turns on the interpretation of Section 61 of the Act, which runs as follows: If any question arises whether all or any of the provisions of this Act apply to an estalishment or to a person employed therein or whether Section 50 applies to any case or not, it shall be decided by the Commissioner of Labour and his decision therein shall be final and shall not be liable to be questioned in any Court of law. It was contended by learned Counsel for the appellant that if question arises as to whether all or any of the provisions of the Act applied to an establishment or to a person employed therein, before any tribunal or court, such a question can be decided only by the Commissioner of Labour, because he was the only person or tribunal who was competent to determine the question. Learned Counsel had perforce to follow this argument to its logical result that the moment, such a question was raised, there Should be a suspension of further proceedings before any other tribunal or court, and the question should be referred for decision to the Commissioner of Labour. Apart from the language of the section itself, which we shall deal with later on, the appellant's learned Counsel relied on two decisions, namely, Pasmore v. Oswald Twistle Urban Council 1838 A. C. 347 find Parry and Co. v. Commercial Enployees' Union 1952--I L. L. J. 769, In the former case, the House of Lords applied the well-established principle of law, which was thus enunciated by Lord Tenderden in 1831: Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. The actual decision in the case was that the duty of a local authority under the Public Health Act, 1875, to make such severs as may be necessary for effectually draining their district for the purpose of that Act, cannot be enforced by an action for mandamus brought by a private person, but the only remedy for neglect of the duty was that given by Section 299 of the Act, a complaint to the local Government Board. There is no scope for the application of this principle to the case before us. The question before us is whether the particular tribunal whose order is sought to be quashed had or had not the jurisdiction to decide whether an employee fell within or outside the provisions of the Shops and Establishments Act.