VASUDEVA BHAT Vs. STATE

JUDGEMENT

(1.) THIS is a revision against the conviction of the petitioners for an offence under Section 41 (1) read with Section 45 of the Madras Shops and Establishments Act, XXXVI of 1947. The petitioners are the Joint Managers of the Joint Booking office at Kodailtaail. They dismissed an employee by name Venkatesa Bhat, who was examined as P. W. 2 in the case by an order dated 16th June 1953. Ex. P. 2. This was communicated to the Commissioner for Workmen's Compensation. P. W. 2 appealed to the Commissioner against the order of these employers and the Additional Commissioner after holding an enquiry held by his order dated 25th September 1954 that the dismissal of P. W. 2 was not valid and also communicated the same to the office of the accused. Notwithstanding the decision of the Commissioner, the accused did not reinstate P. W. 2 and this prosecution is launched therefore for not complying with the order of the Commissioner. The Sub-Magistrate, without going into the question as to whether the dismissal of P. W. 2 was justified or not, held that the decision of the Commissioner according to the provision of Clause (3) of Section 41 is final and therefore the criminal court cannot go into the question again and find the petitioners guilty of the offences charged. The appellate court acquitted the petitioners of the offence under Section 41 (3), but confirmed the conviction under Section 41 (1 ).

(2.) THE main question in this revision is whether the court can refuse to go into the question about the legality or illegality of the dismissal of P. W. 2. Section 41 of the Act provides the procedure to be adopted by the employer before he dismisses an employee, that is under Clause (1 ). Under Clause (2) a right of appeal is given to the authority prescribed under the Act, that is, the Commissioner of Labour. Under Clause (3) the decision of the appellate authority shall be final and binding on both the employer and the person employed. It is the provision of this Clause (3) which has given trouble in this case. The question is whether on account of this clause, the court can refuse to go into that question. In connection with this, it is necessary to compare the provisions of Section 51 of the same Act. Section 51 is as follows;

(3.) IN Ramaswsmi lyengar v. Sivakasi Municipality 1936 Mad WN 221 (A), a Bench of this Court consisting of Pandrang Row and Venkataramana Rao JJ. was considering a prosecution under the District Municipalities Act for non-payment of profession tax. The provisions of the District Municipalities Act laid down that under certain conditions where an assessment has not been objected to or on objection the assessment has been confirmed, it is treated as final, and yet when a prosecution has been launched for non-payment of the profession tax, it was held by the Bench that, The said finality is only for the purpose of the Act and it has been held that the said finality would not prevent a person from impeaching the legality or validity of the assessment in a civil court : So far as the right of the municipality to levy any tax is concerned, they must strictly conform to the provisions of the Act. If they do not do so, they have no right to enforce the tax. In fact Section 354 says that a charge can be validly imposed if the provisions of the Act are substantially complied with. If not, there is no jurisdiction to levy it. The imposition of a tax on a person not taxable under the Act would be a substantial disregard of the provisions of the Act and in a suit for refund of the tax it is open to a person to prove that he is not taxable under the Act. We do not see why a different principle should apply in the case of a criminal prosecution and how a person can be convicted of a criminal offence for non-payment of a sum which he is not legally liable to pay. The Bench followed the decision of Krishnan J. , in - 'smith in re', 45 Mad LJ 731 : (AIR 1924 Mad 389) (B), which decision was approved of by Devadoss J. , in - 'chairman, Municipal Council, Chidambaram v. Tiruparayana Aiyangar' ILR 51 Mad 876 at p. 884 : AIR 1928 Mad 847 at p. 850 (C ).