Judgment

GAJENDRAGADKAR, J.:

These two appeals raise a short question about the validity of the writ of certiorari which has been ordered to be issued by the Division Bench of the Madras High Court in allowing a Letters Patent Appeal preferred before it by the respondent M/ s. Standard Vacuum Oil Company, Madras. The appellant T. Prem Sagar was appointed by the respondent as its Road Engineer at Madras on February 5, 1951. In January, 1952 he was promoted as Operations Assistant on a salary of Rs. 450/ - p.m., and as such, he was placed on probation for a period of six months. At the end of six months, the respondent declared that he had completed his probation satisfactorily. In October, 1957, as a result of some misunderstanding between him and the respondent, he was again placed on probation from October 1, 1957 for a period of six months in the same post of Operations Assistant. At the end of this period, the appellant received a letter from the Operations Manager of the respondent informing him that he had done his work as a probationer satisfactorily. Even so, it was alleged that he did not show capacity for growth with the organisation and on that account, he was offered the lower post of Senior Operations Supervisor. It appears that this post was specifically created for the appellant and it carried a salary of Rs. 900/-. At this time, as Operations Assistant the appellant was drawing Rs. 1,000 p.m. The appellant was then asked to take leave which was due to him, and when on returning from his leave be reported for duty, the management refused to allow him to join duty as an Operations Assistant. The appellant was not prepared to take the post of the Senior Operations Supervisor, with the result that on May 2, 1958, the management of the respondent terminated the services of the appellant with effect from April 30, 1958.

2. The appellant then filed an appeal before the Addl. Commissioner for Workmens Compensation under S. 41 of the Madras Shops and Establishments Act, 1947 (No. 36 of 1947) (hereinafter called the Act). By this application, the appellant complained that the order terminating his services was invalid inasmuch as it had been passed without complying with the mandatory provisions of S. 41 of the Act. Before the Addl. Commissioner for Workmen s Compensation, the respondent filed a petition alleging that the Addl. Commissioner had no jurisdiction to deal with the appellant s appeal in view of the fact that the appellant was a person employed in the respondent s Head Office at Madras in a position of management, and so, the provisions of the said Act were inapplicable to him. The respondent thereupon moved the Commissioner of Labour under S. 51 of the Act to determine this question. Under the said section, the Commissoner of Labour is competent to decide questions of status and that is why the respondent moved the Commissioner of Labour.

3. The Commissioner recorded the evidence led by the respondent as well as the appellant, and on January 12, 1959 he pronounced his decision that the appellant was employed under the respondent and he was not in a position of management.

4. The respondent then moved the Madras High Court by Writ Petition No. 521 of 1959 challenging the order of the Commissioner of Labour. Meanwhile, the Additional Commissioner for Workmen s Compensation took up the appeal for hearing. At this time, the order passed by the Commissioner of Labour under S. 51 had been pronounced and the said order was binding between the parties and was final. In view of the said order, the respondent took up an alternative plea before the Addl. Commissioner and urged that the appellant could not invoke the provisions of S. 11 of the Act, because he was an employer as defined under the Act and not an employee. The Addl. Commissioner overruled this contention and held that the Act applied. On the merits, he made findings in favour of the appellant, rejected the contentions raised by the respondent against the work of