CANARA WORKSHOPS Vs. PRESIDING OFFICER

JUDGEMENT

(1.) In this Writ Petition in which the petitioner M/s. The Canara Workshops Ltd., Maroli, Mangalore, has prayed for quashing the order made by the Additional Industrial Tribunal, Bangalore, on the application presented by the 2nd respondent under S. 33-A of the Industrial Disputes Act ('The Act' for short) and directing his reinstatement with back wages, the following questions of law arise for consideration - 1. Whether without a positive action on the part of the employer, recognising a workman as a protected workman or an order made by the Conciliation Officer under Rule 62(4) of the Industrial Disputes (Karnataka) Rules, 1957 declaring that a workman is a protected workman, the workman could claim the status of a protected workman ?

(2.) Whether on an application made under S. 33-A of the Act, the Industrial Tribunal/Labour Court could make an award directing reinstatement and for payment of backwages to a workman, on mere proof of contravention of S. 33(3) of the Act, without giving the opportunity sought for by the management to justify the termination of service of the complainant/workman ?

(3.) The facts of the case, in brief, are as follows : (i) The petitioner is a limited company. It has its factory at Mangalore. The 2nd respondent was a Clerk in the service of the petitioner. He also possessed Junior Typewriting qualification. Disciplinary proceedings were instituted against him on the charge that inspite of his being transferred to the sales section in the same building, in the place of one Kaushalya, Clerk/Typist, who was on maternity leave, the 2nd respondent disobeyed the order and refused to report for duty inspite of repeated letters addressed to him. The Enquiry Officer appointed by the petitioner held an enquiry and found him guilty of the charge levelled against him. The petitioner accepted the said finding and terminated the services of the 2nd respondent with effect from 7th September, 1981. By that time, an Industrial Disputes between the workmen of the petitioner and the petitioner had been referred by the State Government for industrial adjudication on 17th August, 1981. As the 2nd respondent was a person concerned with the dispute, the petitioner filed an application before the Tribunal under S. 33(2)(b) of the Act seeking its approval to the order of dismissal made by the petitioner. The 2nd respondent filed his objections. Shortly thereafter the 2nd respondent also filed a complaint under S. 33-A of the Act before the Tribunal. In the complaint the 2nd respondent pleaded that he was a protected workman and, therefore, as his services were terminated during the pendency of an Industrial Dispute with which he was concerned without securing the permission of the Tribunal, the termination was invalid. (ii) The petitioner filed his objections to the said complaint and submitted that the 2nd respondent was not a protected workman and, therefore, the question of seeking permission under sub-s. (3) of S. 33 did not arise. (iii) The Tribunal by its order dated 16th August, 1982 held that the 2nd respondent was a protected workman, and, therefore, his, dismissal was in contravention of S. 33(3) of the Act. The Tribunal then posted the case for arguments to hear as to whether the petitioner should be permitted to adduce evidence in support of the charges levelled against the 2nd respondent or whether there should be an order straightway directing reinstatement of the 2nd respondent on the ground that there had been breach of the condition specified under sub-s. (3) of S. 33 of the Act. The Tribunal by its subsequent order dated 31st may, 1983 (Annexure-F) held that once the breach of S. 33(3) of the Act was established, there was no question of taking any evidence on the merits of the case though the petitioner pointed out that in view of the pronouncements of the Supreme Court in number of cases and in particular in the case of Punjab National Bank v. Their Workmen [1959-II L.L.J. 666], that the 2nd respondent could not straightaway succeed in getting a order of reinstatement on the mere proof of violation of S. 33(3) of the Act and it was obligatory for the Tribunal to go into the merits of the case as if it was a reference and to decide the case once for all. The Tribunal however, rejected the above submission made for the petitioner and directed the re-instatement of the 2nd respondent leaving liberty for the management to take fresh action on the same cause of action and to obtain approval under S. 33(2)(b) of the Act. It is in these circumstances, the questions set out first arise for consideration. 3. (a). The facts which are relevant for considering the first question are as follows : For the first time before the Tribunal the 2nd respondent produced a copy of the letter dated 5th March, 1981 (Exhibit-C 12 before the Tribunal) which according to the 2nd respondent was a copy of the original addressed to the petitioner informing it to the effect that the 2nd respondent had been elected as an office-bearer of the Trade Union and that the Trade Union desired that the 2nd respondent and another whose names were specified in the said letter, be recognised as protected workmen. According to the petitioner, no such communication was received by the petitioner. There is, however no dispute that no communication was sent by the petitioner to the Trade Union as required under Rule 62(2) of the Rules recognising the 2nd respondent as protected workman.