ORDER
Mohd. Ahmed Ansari, J.
1. The writ petitioner is the proprietor of Sri Satyanarayana Rice Mill, where one Sastry was Retting a salary of Rs. 60 as a mechanic. The latter had been on leave from May 16. 1956 and was after his return on June 1, 1956 informed that he was not required. A dispute thereafter developed between the workmen and employer of the aforesaid Rice Mill, and conciliation proceedings before the Labour Officer were started. At one stage during those proceedings the employer had agreed to take the mechanic back; but it was alleged that he went back on his promise. Eventually two questions were referred to the Industrial Tribunal.
The first of these is whether the dismissal of
Sri Swamy Sastry is justified and the second is, to
what relief he would be entitled. Before the Tribu
nal the position taken by the employer was that
Sastry had been dismissed after notice, that he
used to be absent for long period without taking
leave, that he had spoiled the machinery and that
he worked in other Milk. The conclusions by the
Tribunal on these are that the dismissal was with
out notice, without sufficient cause, without giving
any opportunity to the mechanic and was not justi
fied.
There is no finding that the mechanic was then working in any other mills. The Tribunal has, however, found that Sastry should get damages and that should be three-fourths of his back wages from June 1st to the date he is reinstated. The three-fourths has been fixed because the mechanic is shown by his own evidence to be working in one Other mill.
2. The point urged for setting aside the aforesaid award is that part employment is inconsistent with the relationship of master and servant, Sactry would not be an employee within the meaning of the Industrial Disputes Act, 14 of 1948 and therefore the Tribunal would not have the jurisdiction to determine the main question. It is now well settled that if a person be not an employee within the meaning of the Act, questions cannot be referred to the Tribunal under the enactment.
Further there are several decisions by Industrial Tribunals to which reference has been made before me that part-time employees are not covered by the Act. It follows that whether Sastry was an employee within the meaning of the Act goes to the very root of the jurisdiction and the Tribunal has erred in not determining the question. That can be explained by the employer’s failure to raise the question in that form and that failure has been pressed before me as being sufficient ground for not interfering with the award.
This argument, however, overlooks the well-settled rule that consent does not cure inherent absence of jurisdiction. The legal position is not different if there be failure to raise the objection, provided the Facts necessary to put the authority On enquiry are clearly alleged. I find that the employer’s statement about the dismissal being justified gives the mechanic being engaged elsewhere as one of the grounds. Therefore the factual plea of his engagement elsewhere was raised.
It further appears that W.W. 2 has deposed in his examination-in-chief that Sastry was working as mechanic in one other mill. That being the factual part of the case of the Tribunal it was bound to enquire whether it had the essential jurisdiction to determine the question. That submission of the parties by appearing and pleading would not confer jurisdiction is well settled. In this connection would refer to Madhava Rao v. Suryarao. (FB). It is equally well settled that in exercise of powers of superintendence such errors by the Tribunal should be cured.
Therefore the award is set aside and the case is remanded to the aforesaid Tribunal to adjudicate whether there be employment of such a nature in the case so as to constitute Sastry an employee within the meaning of the Industrial Disputes Act. If the Tribunal feels it necessary, it may ask the parties to file fresh statements and evidence. The petition is allowed, the award is set aside and the Tribunal is directed to proceed accordingly but the parties will bear their costs of this petition.