Kemp and Co. Ltd. V.

Their
Workmen
(1955) I LLJ 48 (L.A.T.)

Aditi Mallavarapu
Asmita Singhvi
 Fact Scenario
The petitioner-firm has a branch in Madras. It had terminated the
respondents employment as branch manager by giving him one-
months salary in lieu of notice and also additional payment ex-
gratia.
Relying on Section 41(2) of the Tamil Nadu Shops and
Establishments Act (Act), the defendant preferred an appeal
before the Commissioner forWorkmans compensation.
The Commissioner denied the petitioners objection that the
appeal was not competent and the Commissioner lacked
jurisdiction.
The current writ petition has been filed owing to the
Commissioners order.
 Issues

1. Whether the defendant had the right to appeal against the

Notice of Dismissal under the Tamil Nadu Shops and
Establishments Act?

1. Whether the High Court had jurisdiction to determine the

issue of the defendants locus standi before the
Commissioner for Workmens compensation?
 Applicable Law
Tamil Nadu Shops and Establishments Act
Section 2(12)(3)- Person Employed
'Person employed means... in the case of a commercial establishment...a person wholly or
principally employed in connexion with the business of the establishment and includes a peon.

Section 2(5)- Employer

'employer' means a person owning, or having charge of, the business of an establishment and includes
the manager, agent or other person acting in the general management or control of an establishment.

Section 4(1)(a)- Exemption:

(1) Nothing contained in this Act shall apply to-
(a) persons employed in any establishment in a position of management;

Section 41(2) -Notice of Dismissal

The person employed shall have a right to appeal to such authority and within such time as may
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.
Courts Analysis
Whether it is relevant to decide that
the defendant was a person employed
under the Act?
Issue 1
Section 41(2) grants the right to appeal to a person employed. A
person employed has been defined in Section 2(12).
A person employed is defined under Section 2(12) as 'Person'
employed means... in the case of a commercial establishment...a
person wholly or principally employed in connexion with the
business of the establishment and includes a peon.
At the same time Section 4(1)(a) creates an exemption for person
employed in the general management or control, to whom no
provisions of the Act apply.
 The Commissioner ruled that the defendant did not satisfy
the definition of Section 4(1)(a). According to him, the
defendant was not a person employed in managerial
capacity and therefore the appeal under Section 41(2) was
available.

The High Court held that before embarking on that enquiry,

the Commissioner had to first decide if the defendant was at
all a person employed under the Act. (Section 2(12))

Therefore, it was relevant to decide if defendant

was a person employed under Section 2(12).
Whether the HC decides or the
Commissioner?
Issue 2
Pursuant to Issue 1, the HC noted that the Commissioner did
not decide whether the defendant was a person employed.
The issue was not agitated before the Commissioner, but it
goes to the very heart of his jurisdiction over the dispute.
The HC noted that the proceedings were at a
preliminary stage and remanded the matter back to
the Commissioner to look into the matter afresh.
Criticism and Analysis
An Act for the protection of the workmen would become
inefficient if it deprives certain individuals the right to appeal
on the basis of their job description.
The judgment does not succinctly deliver the main argument.
It repeats a lot of points and the same reasoning is mentioned
in multiple places. The judgment is poorly drafted.
The most important takeaway from this case is that certain
questions of inquiry have to be decided by the appropriate
forum such as the Commissioner and not the High Court.