LAXMI VISHNU MILLS LTD Vs. M R BALAKRISHNAN

JUDGEMENT

(1.) THE petitioner in Writ petition No. 4452 of 1974. questions the jurisdiction of the Additional Commissioner for Workmen's Compensation, Madras, to entertain an appeal filed by its employee-respondent 1 under S. 41 of the tamil Nadu Shops and Establishments act, 1947, hereinafter called the Act. Respondent 1 was entertained by the petitioner company as its Madras representative in or about February 1969. Respondent 1's services were terminated with effect from 28 February 1971. On the ground that no reasonable cause has been adduced for such termination and as the prescribed mandate under S. 41 of the Act was not complied with, respondent 1 questioned the validity of the order of termination of service. The petitioner's case is that respondent 1 was appointed purely on a temporary basis and for purpose of experimeniting its project for expansion and that the intention from the beginning was that the post filled up by respondent 1 in connexion with such expansion could be abolished if they could not achieve the objective for expansion of their trade. As the project did not produce satisfactory results, the petitioner wanted to close down the Madras office and this resulted in the termination of the temporary and experimental service of respondent 1. On that ground it is said that the order of termination is justified. The second and the more formidable ground on which the writ petition rested was that the Additional commissioner for Workmen's Compensation (respondent 2), who entertained the appeal, under S. 41 of the Act, had no jurisdiction to grant respondent 1 any relief, as he was not a "person employed" under the Act. On merits the petitioner also stated that respondent 1 was in the position of a manager and his work involved touring and canvassing and that there was no establishment as such to which he was allotted. On the above grounds the appeals before respondent 2 was contested. Respondent 2 held that he had jurisdiction to entertain the appeal and that the tours undertaken by the employee was only incidental to his main work and as the prescriptions laid down under S. 41 (1) of the Act were not complied with, he set aside the order of termination. As against the order of respondent 2 the petitioner filed the writ petition since reported in Laxmi Vishnu Mills, Ltd. , bombay v. M. R. Balakrishnan and others [1978-I l. L. N. 44 ], under Art. 226 of the Constitution and sought for a writ of certiorari to quash the order of respondent 2, dated 22 May 1973.

(2.) THE main argument before the appellate authority was that he had no jurisdiction to entertain the appeal. Respondent 2 would not agree with the contention. Respondent 1 contended to the contrary and Mohan, J. , after a review of judicial precedents quoted before him, found that the Additional Commissioner for Workmen's Compensation had jurisdiction to decide the appeal. The learned Judge also agreed with the finding of respondent 2 that respondent 1's employment was in the main to work at Madras and that the tours and canvassing which he undertook was only incidental to his main work. On the merits, the learned Judge was of the view that the additional Commissioner for Workmen's compensation did not consider the question whether there was any reasonable cause given by the employer for terminating the services of the employee. In those circumstances he remitted the subject-matter for disposal by respondent 2 in accordance with the principles laid down in the well-known decisions of our court. Against this order of remittal, the present appeal has been filed.

(3.) SRI B. Kalyanasundaram, appearing for the appellant, did not raise any question on the merits and he made it clear that he was only on the legal question whether respondent 2, as the Appellate Authority constituted under S. 41 of the Act, had the requisite jurisdiction to entertain the appeal. The substantial contention raised before us is that the Act would not apply to the petitioner establishment as it is beyond the State of tamil Nadu. Secondly, it is said that it is not a commercial establishment at all and even otherwise it has no premises of its own in Madras to compel the petitioner to follow the prescriptions as regards the termination of the service of its employees as set out in s. 41 of the Act.