Judgement

GOSWAMI, J. :- This appeal by special leave is directed against the order of the Additional Commissioner for Workmen s Compensation. Madurai (briefly the Commissioner) in an appeal before him lodged by the respondent against the order of his dismissed passed by the appellant company on December 29, 1970.

2. The respondent was in employment under the appellant company at the Tirchirapalli Branch as a typewriter mechanic since 1950. The charges against him were that he was absent on November 2, 1970 without leave and without sufficient cause and also secondly that he was on the said day privately doing some repair work of a typewriter in the premises belonging to the Eswari Institute of Commence, Tiruchirapalli. The respondent was directed to show cause on November 17, 1970 and was placed under suspension. After receipt of his reply to the charge-sheet, a domestic enquiry was held in which witnesses were examined. The respondent examined only himself on his behalf and the appellant examined three witnesses including the Manager of the Tiruchirapalli Branch and the company s doctor. The enquiry Officer found both the charges to be established and on receipt of his report the management passed an order of dismissal.

3. Since an industrial dispute was pending at the relevant time, the management simultaneously submitted an application to the Industrial Tribunal, Madras, for approval of the order of dismissal under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (briefly the I. D. Act). The respondent took the plea before the Tribunal that he was a protected workman and hence his dismissal was illegal in the absence of prior permission from the Tribunal under Sec. 33 (3) of the I. D, Act. The Tribunal, however refused to accept this plea and held that he was not a protected work man. The Tribunal further approved the order of dismissal by its ordered dated February 18, 1971.

4. Prior to the termination of the proceedings before the Tribunal on February 18, 1971 the respondent had filed an appeal before the Commissioner under Section 41 (2) of the Tamil Nadu Shops and Establishments Act (briefly the Shops Act). The Commissioner after a perusal of all the documents produced by the parties before him took some additional evidence and after hearing the parties set aside the order of dismissal by the impugned order of November 16, 1971. The Commissioner held that the first charge namely that he was absent without leave on November, 2, 1970, was established while the second charge about being repair work in the promises of Eswari Institute of commerce Tiruchirapalli, was not proved. The Commissioner also held that the order of dismissal was absolutely disproportionate to the gravity of the offence proved.

5. Mr. Natesan the learned Counsel appearing on behalf of the appellant, submits in the forefront of his argument that as a special forum for relief has been provided under the I. D. Act, namely for making an application under Section 33-A of that Act the remedy resorted to by the respondent under the Shops Act must be held to be excluded. The learned Counsel submits that since the respondent claimed to be a protected workmen before the Tribunal he should have made an application under Section 33-A for violation of Section 33 of the I. D. Act. before it. The respondent having chosen a wrong forum is precluded from challenging the order of dismissal before the Commissioner says Mr. Natesan.

6. It is rather extraordinary that even though the Commissioner (sic) (Tribunal) at the instance of the appellant had rejected the plea of protected workman the management now seeks to raise a plea of ouster of jurisdiction before the Commissioner on the self-same ground. This in our opinion cannot be allowed. Besides the appellant submitted to the jurisdiction of the Commissioner and had not raised any objection to its jurisdiction to hear the appeal. That being so we have not allowed the learned Counsel to raise the plea of jurisdiction b