DALMIA INTERNATIONAL LIMITED Vs. THOMAS

JUDGEMENT

(1.) THE writ petition filed by a company registered under the Companies Act, 1956, which is conducting a cashew nut factory at Kundara in Quilon District seeks to quash the award passed by the Industrial Tribunal, Alleppey directing the reinstatement of a dismissed employee, the first respondent in the O. P. The dismissal was consequent on the finding that the employee was guilty of alleged misconduct in a domestic enquiry conducted. Pending enquiry the first respondent had been suspended on 1st June, 1973. The petitioner had, accepting this finding of the enquiry officer dismissed the 1st respondent from service on 12th July, 1973, with effect from the date of his suspension.

(2.) AN Industrial Dispute I. D. 26 of 1970 between the petitioner and their workmen was pending at the time of dismissal before the second respondent, Tribunal. The issue in the dispute was the temporary closure of the factory and compensation to the workers, if any. On his dismissal the first respondent filed a complaint under Section 33a of the Industrial Disputes Act alleging that the petitioner has violated the provisions of Section 33 of the Industrial Disputes Act, the findings of the Enquiry Officer are perverse and the charges levelled against the 1st respondent are baseless, he is only being victimised and also that the punishment imposed is unconscionably harsh.

(3.) ACCORDING to the petitioner the issue referred for adjudication in I. D. 26/1970 was the temporary closure of the factory and compensation due to workers. The first respondent was a mycaud worker and he was, therefore, not a worker concerned in the dispute. Therefore, it is contended the award of the second respondent in I. D. 26 of 1970 could have no effect on him and the petitioner cannot be accused of having violated the provision of Section 33 (2) of the Industrial Disputes Act. It is also pointed out that he is not a "protected workman. " Under Rule 62 of the Kerala Industrial Disputes Rules every industrial establishment to which the Industrial Disputes Act applies shall communicate to the employer before 30th April every year the names and address of such of the officers of the union who are employed in that establishment and who in the opinion of the union should be recognised as "protected workman. " In the instant case it is said the union to which the 1st respondent belongs has not made any such request. Based on the decision of the Supreme Court, Workmen of Firestone Tyre and Rubber Co. (P) Ltd. v. The Management and Ors. 1973-I L. L. J. 278, the petitioner raised the plea that in cases where the Tribunal has recorded that the domestic enquiry was bad and defective and has rejected the same, it is the duty of the Tribunal to give an opportunity to the petitioner to let in evidence before it. The award is, therefore, said to be bad as no such opportunity was given in this case. It is further contended in cases where the Tribunal holds that the enquiry is defective it has no jurisdiction to consider the evidence adduced in the enquiry to arrive at a finding against the petitioner. The petitioner also takes up the point that the finding of the Tribunal that the domestic enquiry held by the petitioner has not been a fair one is vitiated by error of law apparent on the face of the record. These contentions have been controverted in the counter-affidavit filed by the 1st respondent. It is pointed out in his affidavit that the dispute I. D. 26/70 was raised by the casuandi Thozhilali Congress of which he is factory convener and the said dispute relates to non-payment of wages for a period including that of respondent's wages on account of closure. The closure which was alleged to be due to the cashew industry being a seasonal one is questioned by this respondent because it is said as per a decision of a Division Bench of this Court, for the purpose of considering whether industry is seasonal or not the standing orders are irrelevant, but it is for the Government to decide the question under Section 25 (a) of the Industrial Disputes Act. It is also submitted by the 1st respondent that the petitioner is not entitled to raise the contention that the Tribunal did not give it an opportunity to let in evidence because the case was posted for evidence of the management on two occasions and the management finally submitted that they have no evidence except the enquiry proceedings which were marked as Ext. Ml series.