GOPALAKRISHNAN Vs. COMMISSIONER FOR WORKMENS COMPENSATION AND

JUDGEMENT

(1.) THE facts giving rise to this petition under Article 226 of the Constitution of India may be shortly stated. The petitioner was employed as a salesman by M/s. Parry's Confectionary Limited, Madras, who figures as the second respondent before me, in the year, 1952. He continued to serve them in that capacity till the 31st of December, 1968. With effect from the 1st of January, 1969, he was promoted as sales supervisor through a contract, which is evi. denced by a letter dated the 26th December, 1968, issued by the second respondent to him. The relevant portion of that letter is re-produced below; We have pleasure in informing you that it has been decided to appoint/ confirm/promote you in/to the Junior Management Staff and to place you to Cadre ?g? with effect from 1st January, 1969.

(2.) THE salaries we offer are: From 1. 1-1969 to 31-12-1969. RS. 500 p. m. 3 Additionally, you will be entitled to the General Service Terms applicable to your new Grading, as detailed in the enclosure. 4. For the category of staff in which you are now placed, the payment of dearness allowance, merit bonus, commission and annual bonus (hitherto known as special payment), has ceased. However, taking into regard the financial result of each company, a bonus may be declared for the financial year, This bonus is payable provided an employee has a minimum attendance of 30 days, during the course of the year. Proportionate bonus may be paid calculated on the actual earnings by way of salary drawn in the year, in the event service is less than a full year. Bonus will not be payable in the case of discharge or dismissal for misconduct. Salary only will be reckoned in computing bonus, if any, payable 5. The appointment is subject to the rules and regulations made by company as in force at present, or as amended or extended from time to time, and to termination by three calendar months" notice is writing on either side. The company reserves the right to terminate the appointment without notice, by paying three calendar months' salary in lieu of notice and upon making such payment of salary "in lieu of notice as aforesaid, the appointment will terminate, but without prejudice to any antecedent breach of the terms and conditions of this appointment. If, however, you fail to observe any of the terms and conditions of this appointment, your services will be terminated without notice or payment in lieu thereof. The letter consists of a printed form having certain blanks which have been filled up in type. Those blanks relate to the various dates and amounts mentioned in the portion above extracted. For the rest the whole letter is in print, except that the words "appoint/confirm" preceding the word "promote" have been scored out in type. It is noteworthy that the printed portion of Clause 2 of the letter makes provision for rates of salary to be specified for three years only. 2. The services of the petitioner were terminated by respondent No. 2 with effect from 12th February, 1971, under Clause 5 of the letter. Aggrieved by their action, the petitioner filed an appeal under Subsection (2) of Section 41 of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as the Act. , to the Additional Commissioner for Workmen's Compensation, Madras, who is arrayed before me as respondent No. 1 and before whom the following three preliminary objections were raised on behalf of respondent No. 2: (i) The appeal would lie not to respondent No. 1 but to the Additional Commissioner for Workmen's Compensation, Trichy. (ii) By G. O. Ms, No. 1410, dated 20th March, 1948, the Governor of Tamil Nadu, in exercise of the powers conferred upon him by Section 6 of the Act, had exempted permanently persons employed under a contract for a fixed period from the provisions of Section 41 of the Act, so that the appeal was not maintainable. (iii) The appeal was liable to be dismissed as being time-barred.

(3.) IN dismissing the appeal as incompetent, respondent No. 1 relied upon G. Q Ms. 1410 mentioned above, taking for granted that the contract was one to which it applied, but without holding that the contract was contract for a fixed period and without giving any reason that it was so.