The decision of the Commissioner under Section 41(3) of the Madras Shops and Establishments Act is final and binding on both parties and the effect of the order setting aside the order of retrenchment is that the appellant is deemed to continue in service till he is reinstated.

( 1 ) THE appellant was an employee of the Nellore District Co-operative Wholesale Stores Ltd. , hereinafter referred to as the "co-opsra-tive Stores", initially as a clerk, then as an Accountant and on the date when the notice for discharge was given, he was occupying the post of a Supervisor to which he was promoted. There were in all 48 persons employed in this Co-operative Stores which was evidently dealing in food-grains. As a result of the abolition of the controls, the work of the Co-operative Stores was not so heavy and consequently some of the employees had to he retrenched. The Co-operative Stores gave to allits employees notices of retrenchment on 7-7-1952 and later purported to re-employ 37 of its employees while dispensing with the services of 11 of whom the appellant was one of them. The respondent gave another notice on 5-8-1952 terminating the services of the appellant from 7-8-1952 as per Ex. A-2. The appellant thereafter appealed to the Appellate Authority under Section 41 (2) of the Madras Shops and Establishments Act (Madras Act XXXVI of 1947) against this order of retrenchment The Labour Commissioner, Madras heard both the parties and set aside the order of the retrenchment passed against the appellant on 18-4-1953. This order was communicated to the appellant on 8-5-1953. Imme- diately thereafter, the appellant served several notices on the respondent asking them to intimate the date on which he can join, but the respondent remained silent. Ultimately the appellant was forced to give a suit notice on 9-3-1954 to which the respondent re-plied on 29-3-1954 saying that they will not entertain him in employment. As a result of this, he filed a suit in the District Munsifs Court, Nellore on 19-4-1954 claiming salary from 7-8-1952 to 7-3-1954 with interest thereon at 6 per cent per annum from the date of the plaint till the date of realisation. In paragraph 10 of the plaint, he averred that having regard to the order of the Commissioner dated 16-4-1953, the original order of the Defendant-stores dated 5-8-1952 stands vacated and must be deemed to be non esse. He further averred that he was throughout and is even now willing and available to perform such duties as may be entrusted to him by the defendant and that the allegation in the reply notice of the defendant that the plaintiff is running business in coffee seeds etc. is not true, and that in any case, even assuming that it is true, it would not disentitle him to make the claim. Several pleas were taken by the Co-operative Stores contending that the order of the Commissioner for Workmans Compensation was recommendatory, that it was not a final order, that the finality of the Commissioners order is confined to the penal clause of the Workmens Compensation Act, that the plaintiff was employed otherwise after the termination of his services, that the plaintiff is not entitled to any arrears of salary or arrears of allowances and that the suit was barred by limitation. The trial court, on the basis of the decision in Bhavani Kudal Co-operative Urban Bank Ltd. v. Venkatapalhi Naidu, (1955) 1 Mad LJ 293: (AIR 1956 Mad 150) held that the plaintiff is entitled for damages for the time he would reasonably take to find other employment of a similar nature and on that basis, award him one years salary as a clerk which amounted to Rs. 420. 00 with proportionate costs. The suit claim with respect to the further period and the prayer for allowances was dismissed. The first appellate Court held that it was entitled to go into the merits of the retrenchment as Section 41 (3) of the Madras Shops and Establishments Act did hot bar the Court from going into such questions. It further held that, on the merits, the retrenchment was reasonable and that the appellant was not. entitled to file a suit for arrears. In this view, St dismissed the suit.

( 2 ) IT appears to me that the first appellate court has not approached the points in issue correctly and also did not app