MUTHIAH Vs. MANAGEMENT OF SEETHALAKSHMI MILLS REP

JUDGEMENT

(1.) The petitioner has questioned the award of the Special Industrial Tribunal, Madras dated December 13, 1995 in dismissing the complaint made in Complaint No. 3 of 1994.

(2.) The petitioner joined the services of the first respondent-Management (herein after referred to as the "Management") as a Sider in the Spinning Department on February 13, 1984. Since he had to proceed to his relatives place at Vathalagundu urgently after the night shift was over on September 16, 1993, the petitioner left to Vathalagundu on September 17, 1993, where he fell sick. He therefore sent a telegram on September 20, 1993 to the Management about his absence. On coming to know that he was implicated in a murder case, he surrendered before the Court on September 27, 1993 and was kept in prison. On October 11, 1993 the petitioner sent his requisition for leave from September 17, 1993 till he was released from jail. He also sent another letter on October 17, 1993. However, the Management refused to grant leave in their communication dated November 22, 1993. A charge memo dated December 6, 1993 was communicated to the petitioner containing two charges. The first charge related to unauthorised absence and failure to report for duty and the second charge was that the Management had lost confidence in the petitioner. The petitioner was thereafter granted bail with condition. Hence, he made a request on January 3, 1994 to grant time to reply to the charge memo dated December 6, 1993 after the condition imposed in the bail order was relaxed. In fact the condition was relaxed on January 13, 1994 and the petitioner therefore, by his letter dated January 17, 1994 requested the assistance of a lawyer which was rejected. An ex pane enquiry was conducted and on the basis of the report holding the charges proved, the petitioner was issued with the second show cause notice dated January 31, 1994, on which date he was also placed under suspension. Though the petitioner requested fifteen days time to submit his reply, his request was rejected and he was dismissed from service on February 5, 1994. Since a dispute in I.D. Nos. 1, 2 and 3 of 1993 were pending on the date when the petitioner was dismissed from service, before the order of dismissal, the Management ought to have obtained prior permission under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as the "Act"). Since no such permission was obtained, the petitioner filed a complaint under Section 33-A of the Act. The said complaint was taken on file as Complaint No. 3 of 1994 and the Special Industrial Tribunal adjudicated the same and by the impugned award dated December 13, 1995 dismissed the said complaint. Hence, the writ petition.

(3.) Mr.N.G.R.Prasad, learned counsel for the petitioner would firstly contend that in view of the judgment of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others, 2002 (2) SCC 244 : 2002-I-LLJ-834, failure to obtain permission under Section 33(2)(b) would render the order of dismissal itself as invalid and inoperative. If that be so, the Tribunal ought to have found that the dismissal is invalid and consequently should have directed the petitioner to be reinstated into service with back wages and other attendant benefits. Secondly, on merits, the learned counsel submitted that the charge is one of unauthorised absence and failure to report for duty, during which period, admittedly, the petitioner was in custody and he applied for leave on that ground. The said request for grant of leave was unjustly refused on one side and on the other side the Management issued the charge memo for unauthorised absence and failure to report for duty. On the facts of this case, when the petitioner had applied for leave on the ground that he was imprisoned, the charge itself cannot be sustained, as the absence cannot be considered as unauthorised and for the reasons mentioned in the requisition for grant of leave. In the circumstances, the Tribunal also found force in the said submission, but relying upon the judgment of the Apex Court in Workmen of Burn and Company v. Bum and Company, AIR 1957 SC 38, when the Management has lost confidence, reinstatement cannot be ordered. Only in that view, the complaint was rejected. Finally, the learned counsel submitted that the plea of loss of confidence was for the purpose of denying the legitimate right of the petitioner for reinstatement.