Case Name: Kemp & Co. Ltd. V. Commissioner for Workmen's Compensation & Ors. Category: legal Subject: Labour Law Citation: (1955) IILLJ 481 Mad

1. KEMP & CO. LTD. V.
COMMISSIONER FOR
WORKMEN’S
COMPENSATION & ORS.
By: Parul Juneja
B.A.LL.B.(H)
JINDAL GLOBAL LAW SCHOOL

2. FACTS
• The petitioner firm had a branch in Madras and the head office in Bombay.
• The second respondent was in the service of the petitioner at Madras and held the
post which was designated branch manager.
• The petitioner-firm terminated the services of the second respondent with effect
from 28 August 1953, after giving-him a month's salary in lieu of notice and also an
additional payment ex gratia.
• The second respondent filed an appeal under Section 41(2) of the Madras Shops &
Establishment Act XXXVI of 1947 for workmen’s compensation to the Commissioner.
• The objection of the petitioner was that the appeal was not competent and that the
commissioner had no jurisdiction, was overruled.

3. • The plea of the petitioner was that section 4(1)(a) of the Act precluded the
application of the provisions of the Act to the second respondent. The
Commissioner stated that the second respondent could not be deemed to be a
person excluded by the provision of Section 4(1)(a) of the Act.
• It was stated that In deciding whether Section 4(1)(a) excluded an appeal under
Section 41(2), the Commissioner will still have to find whether the employee who
preferred that appeal was a person employed within the meaning of Section 2(12) of
the Act. It is only then that the other question arises, whether that person employed
was in a position of management within the meaning of Section 4(1)(a).
• The question of employment was not in the preliminary objection put forward by
the petitioner.

4. • The question whether the second respondent was a person employed within the
meaning of Section 2(12) of the Act was not decided by the Commissioner, and he
had no occasion to decide it.

5. ISSUES
• Whether the order of the commissioner was valid under under Article 226 of the
Constitution for the issue of the writ of certiorari?
• Whether the second respondent was a person employed at all within the meaning
of the act?

6. RULES
• Section 41(2) of Madras Shops and Establishment Act XXXVI of 1997: Notice of
dismissal:
(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.
• Section 4(1) (a) of the Act: Exemption: (1) Nothing contained in this Act shall apply
to—
(a) persons employed in any establishment in a position of management;

7. • Section 2(12) of the Act ‘person employed’ means—
(i) In the case of a shop, a person wholly or principally employed therein in connection with the business of the shop;
(ii) In the case of a factory or an industrial undertaking, a member of the clerical staff employed in such a factory or
undertaking;
(iii) In the case of a commercial establishment other than a clerical department of a factory or an industrial
undertaking, a person wholly or principally employed in connection with the business of the establishment, and
includes a peon;
(iv) In the case of a restaurant or eating house, a person wholly or principally employed in the preparation or the serving
food or drink or in attendance on customers or in cleaning utensils used in the premises or as a clerk or cashier;
(v) In the case of a theatre, a person employed as an operator, clerk, door-keeper, usher or in such capacity as may be
specified by the 1[State] Government by general or special order;
(vi) In the case of an establishment not falling under paragraphs (i) to (v) above, a person wholly or principally
employed in connection with the business of the establishment and includes a peon;
(vii) In the case of all establishments, a person wholly or principally employed in cleaning any part of the premises;
but does not include the husband, wife, son, daughter, father, mother, brother or sister of an employer who lives with
and is dependent on such employer;

8. HELD
• The High Court held that the question of whether the petitioner was a person
employed and whether he was employed in the position of management are
primarily for the tribunal, that is, the commissioner, to decide.
• The court further stated that Since the jurisdiction of the Commissioner arises only if
the second respondent is a person employed within the meaning of Section 2(12) of
the Act, and that question has not been decided as the same was not put forward
by the petitioner which is why only the question whether section 4(1)(a) was
considered, the order was set aside and the whole question will have to be gone
into afresh by the commissioner.
• Therefore, the petition was allowed and the writ was made absolute.

9. ANALYSIS
• I agree to the judgment of the High Court in respect to the petition filed.
• This is because, unless you do not decide a preliminary question, further questions
cannot be decided.
• Therefore, unless the question of employment could not be found out, further
questions regarding the jurisdiction of the Commissioner cannot be raised.
• Hence, the holding of the High Court, in my opinion, was just.