JOSEPH SAM Vs. CALTEX INDIA LTD

JUDGEMENT

(1.) THIS petition raises for consideration a very short but interesting point regarding the construction and scope of Section 51 of the Madras Shops and Establishments act (XXXVI of 1947 ).

(2.) THE petitioner Joseph Sam was a Depot operator under the employment of messrs. Caltex India Ltd. (First respondent ). While so, towards the end of October 1954, he was served with a notice of certain charges and directed to show cause why he should not be dismissed from service. The petitioner submitted his explanation and as desired by him an oral enquiry was held by the management on 4-11-1954. The enquiring officer found the charges made out and on 1-121954 the petitioner was dismissed from the service of the first respondent. Against this order of dismissal the petitioner filed an appeal under' Section 41 (2) of the madras Shops and Establishments Act which was taken on file and. heard by the additional Commissioner for Workmen's Compensation. Section 41 (2) under which this appeal was filed runs in these terms: " (2) 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 services or on the ground that he had not been guilty of misconduct as held by the employer. " The employer who was served with the notice of this appeal raised a preliminary objection to its maintainability on the ground that the petitioner was not "a person employed" to whom the provisions of the Act applied. In particular the first respondent called in aid Section 4 (1) (a) of the Act which enacted: "nothing contained in this Act shall apply, to (a) persons employed in any establishment in a position of management. '' on this plea being raised the appellate authority -- the Additional Commissioner for Workmen's Compensation -- heard evidence as to the nature of the duties which the petitioner had to perform under the first respondent and sustained the objection for mulated by the management holding that the petitioner was "employed in a position of management". On this finding he had necessarily to hold that the appeal before him by the petitioner was incompetent and he so decided.

(3.) IT is this order of the Additional Commissioner for Workmen's Compensation that is challenged as ultra vires by the petitioner before me.