THOMAS PAUL Vs. INDUSTRIAL TRIBUNAL, KOZHIKODE

JUDGEMENT

(1.) .This Writ Appeal discloses the persistence and tenacity with which an industrial dispute is being fought out between the employers and their workmen, this being the third round of the legal battle waged in this court in connection with the dispute. The appellant whom we may call the 'workman' was the 1st respondent in the writ petition filed by the third respondent, the 'employer'. The 3rd respondent owned several tile factories, one of them being the Feroke Tile Works at Kozhikode. It was decided to sell the same to the 2nd respondent with effect from the close of business on 28th April 1967. All workmen except four managerial/supervisory personnel were to be employed by the transferee 2nd respondent. The four managerial/ supervisory personnel were given three months' notices of termination with offer for payment of compensation. A notice dated 25th April 1967 was issued to the appellant and served on him after 4 p.m. on 27th April 1967 that his services were no longer required. The appellant was a Foreman in the Company. He replied that he is only a Clerk, Grade II, and that according to the agreement of transfer the undertaking had to be transferred as a going concern along with the workmen and staff. It is the appellant's case that at the time he Wits served with notice, Industrial Dispute No. 139 of 1964 was pending before the Industrial Tribunal, Calicut, regarding the question of bonus. The appellant therefore filed Ext. P1 complaint under S.33A read with S.33(2)(b) of the Industrial Disputes Act. This resulted in an award of the Tribunal dated 19th August 1969 directing reinstatement of the appellant. That was challenged by the transferor and the transferee of the undertaking in O.P. Nos. 4736/69 and 314 of 1970 of this court. The writ petitions were allowed by Ext. P3 judgment dated 14th August 1970, and the matter was remanded back to the tribunal for fresh determination, without expressing any opinion on the merits of the contentions of the parties. The Industrial Tribunal passed a fresh award on 19th December 1972. It understood Ext. P3 judgment as holding that the complaint was not maintainable and dismissed the same. Against that decision the present appellant filed O.P. No. 1109 of 1973 in this court. That was allowed by Ext. P5 judgment dated 21st June 1974, and the Tribunal was directed again to go into the matter afresh. This was done, resulting in Ext. P6 award dated 28th April 1975. The Tribunal found the discharge of the appellant, illegal and unjustified and amounting to victimisation and recorded that he was entitled to be reinstated with back wages. But as the factory had been closed on 20th May 1969 and the closure had been accepted by the unions, and their workmen, the relief of reinstatement was infructuous. On the ground that the termination was illegal, the Tribunal stated that the appellant should be deemed to have continued in service till 20th May 1969 and would be entitled to wages till that date; and in addition, to closure compensation at the rate offered to the other workmen. The back wages and compensation were directed to be paid by the transferor management. The transferor management challenged the award by a writ petition which was allowed by a learned Judge of this Court against whose judgment this appeal has been filed.

(2.) The learned Judge took the view that transfer of an undertaking was not prohibited by the law and was indeed recognised by S.25FF of the Industrial Disputes Act. The learned Judge expressed himself thus:

(3.) The learned Judge found that the proviso to S.25FF was not attracted as the workman's service was interrupted. Posing the question whether the workmen could be said to have been discharged for his misconduct as envisaged by S.33 of the Act, the learned Judge