K.K. CHARY, REPRESENTING INTERNATIONAL BUSINESS CORPORATION Vs. D. JOSEPH, REPRESENTED BY STATE LABOUR UNION AND ORS.

JUDGEMENT

(1.) THESE writ petitions will have to be allowed on the short ground of limitation which the Additional Commissioner for Workmen's Compensation, has failed to consider. The following facts require to he noted for a proper appreciation of the point of limitation. The services of the respondent in W.P. No. 3007 of 1972 who was employed as a clerk from 1st August, 1967 were sought to be terminated by a notice dated 12th September, 1969 and the said notice was served upon the workman on 18th September, 1969. He preferred an appeal on 5th November, 1969 under Section 41 of the Shops and Establishments Act to the Additional Commissioner for Workmen's Compensation, but unfortunately this point was not taken note of and therefore, there is no decision on that. Mr. T.R. Rajagopalan, learned Counsel draws my attention to Section 41 and also to Rule 9 framed under the Shops and Establishments Act and submits that admittedly reckoning from the date of service viz., 18th September, 1969 the appeal filed on 5th November, 1969 is clearly barred by limitation because it is beyond thirty days. He also raised the other submissions that when the workmen himself had admitted that he was transferred to work and actually worked for more than 12 days, there can be no question of any agreement as held by the Additional Commissioner for Workmen's Compensation. If, therefore, according to the learned Counsel, the appeal itself was clearly barred by limitation the petitioner will not be entitled to computation of any monetary benefits, and therefore, the order made in C.P. No. 326 of 1971 is liable to be set aside.

(2.) MR . Prasad, learned Counsel for the workman submits that the proper way to construe Rule 9 would be, 20 days of limitation must be reckoned from the actual termination and not against the proposed, termination. Looked at from this point of view, Rule 9 is ultra vires of Section 41. If from the actual termination ox when the termination takes effect 30 days period of limitation is reckoned viz., from 18th October, 1969, the appeal filed on 5th November, 1969 is well within time. He also does not admit that the workman was working for 12 days in the transferee concern. If, therefore, the appeal itself was competent, based on that appeal any monetary computation made would be valid.

(3.) I also make it clear that inasmuch as I have remanded the matter, I am not dealing with the merits of the other submissions.