RALLIS INDIA LIMITED Vs. ADDITIONAL COMMISSIONER FOR WORKMENS

JUDGEMENT

(1.) THE Writ Petitioner is the appellant before this Court. It is a public limited company. It appointed the second respondent as a salesman in the Pharmaceutical Division by its letter dated 21-8-1959. The second respondent was then promoted as its Medical Representative with effect from 1-7-1964 for Nellore, Chittoor and Katappa, three Districts in Andhra Pradesh with Headquarters at Nellore. The second respondent was charged with irregularities in respect of alleged low sales in the first three months of the financial year 1972-73. He was also charged for being deliberately absent from duty on 24th and 25th December, 1972. He submitted his explanation regarding all these two charges and the order of termination came to be passed on 10-11973. The second respondent then filed an appeal under S. 41 (2) of the Tamil Nadu Shops and Establishments Act XXXVI of 1947, (hereinafter referred to as ('the Act') challenging the order of termination on the ground that it was passed without conducting any domestic enquiry and giving him an opportunity to defend himself. The appeal was resisted by the Company by raising the following two preliminary objections :

(2.) RELYING on the definition of "person employed" (S. 2 (12) of the Act) and "commercial establishment" (S. 2 (3) of the Act), learned counsel for the appellant contended that the existence of a premises is not the sine qua non of a commercial establishment and the dominant characteristic of a commercial establishment is its activity in trade, business, or a profession and a defined premises or fixed place is not the criterion for such activity and since such commercial activity was carried on by the second respondent in Nellore in Andhra Pradesh where he was principally employed in connection with the business of the establishment, the Andhra Pradesh Shops and Establishments Act, 1966, would apply to his case and the first respondent has no jurisdiction to adjudicate the issue. In support of this contention the learned counsel relied on the two decisions reported in Laxmi Vishnu Mills Ltd. , Bombay v. M. R. Balakrishnan and others (52 F. J. R. 75) and Bayer (India Ltd. and another v. appellate Authority under A. P. Shops and Establishments Act and others (57 F. J. R. 309 ).

(3.) SECTION 41 (2) of the Act provides that 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 service or on the ground that he had not been guilty of misconduct as held by the employer. The term "person employed" is defined under S. 2 (12) of the Act. A reading of these two provisions would indicate that the right of appeal is provided under S. 41 (2) of the Act to the "person employed" and the ground on which the right of appeal is given is dispensation of service without reasonable cause, or he is not guilty of misconduct. The Head Office of the appellant is at Bombay and the Regional Office is at Madras. There is no office in Nellore where the second respondent was working as a Medical Representative. Pursuant to the discussion with the Regional Manager, the second respondent was promoted as a Medical Representative with effect from 1-7-1964. The evidence shows that the monthly working progress and monthly reports were submitted by the second respondent only to the Regional Office of the appellant at madras. The second respondent in his cross-examination has stated that his salary was paid at Madras, that he used to discuss with the Regional Manager about the promotion of sales and that they used to give him advice. The Regional Office at Madras was thus exercising administration and supervision over the work of the second respondent. The evidence of the second respondent further shows that the order of termination was passed on the recommendation of the Regional Manager at Madras and it was served at Madras. The company's properties and records in the possession of the respondent were directed to be handed over to the Regional Office at Madras. The Regional Office at Madras is exercising control and supervision over the work of the second respondent and the order of termination was served in Madras would show that at least a part of cause of action arose in madras and that is enough to confer jurisdiction on the first respondent to adjudicate the claim.