Reference of incidental questions to Commissioner by the Additional Commissioner.

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).

The Petitioner Joseph Sam was a Depot Operator under the employment of Messrs. Caltex India, Ltd. (1st 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 4th November, 1954. The enquiring officer found the charges made out and on 1st December, 1954, the petitioner was dismissed from the service of the 1st respondent. Against this order of dismissal the petitioner filed an appeal under section 41 (2) of the Madras Shops and Establishment 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 1st respondent called in aid section 4(1) 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 1st respondent and sustained the objection formulated 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.

It is this order of the Additional Commissioner for Workmen’s Compensation that is challenged as ultra vires by the petitioner before me.

Mr. Nambiar who appeared in support of the petition did not question the correctness of the conclusion of the Additional Commissioner that the petitioner did occupy a position of management but the point raised by him was that the Additional Commissioner had no jurisdiction to determine this issue but that he had, immediately the issue was raised, to refer it to the Commissioner of Labour for the latter’s adjudication and then abide by the decision of that officer. This contention was based upon the terms of section 51 of the Act which runs in these terms:

“51. If any question arises whether all or any of the provisions of this Act apply to an establishment or to a person employed therein or whether section 50 applies to any case or not, it shall be decided by the Commissioner of Labour and his decision thereon shall be final and shall not be liable to be questioned in any Court of Law.”

The very short question which I have to consider is whether the words with which the section opens “if any question arises whether all or any of the provisions of this Act apply to an establishment or to a person employed therein”, are apt to cover every case where the question arises as incidental to the determination of matters within the jurisdiction of other functionaries. Before entering on the discussion regarding this question, it is necessary to mention that this objection to the jurisdiction of the Additional Commissioner was not raised before him but the petitioner led evidence before the authority and was desirous of obtaining an adjudication favourable “to himself. In these circumstances the question naturally arises as to whether the petit