MOHAMMED HANIFA Vs. PRESIDING OFFICER

JUDGEMENT

(1.) THIS writ petition has been filed praying to issue a Writ of Certiorari calling for the records of the award dated 2. 11. 1995 made in I. D. No. 366 of 1994 on the file of the first respondent and quash the same insofar as it relates to denial of backwages for the period of non-employment.

(2.) THE petitioner/workman challenges the award passed by the Labour Court, Coimbatore, relating to the denial of backwages for the period of non-employment under the second respondent. The petitioner herein and another were charged for certain alleged misconduct, regarding which an enquiry was ordered to be held on 5. 3. 1994 in which the petitioner appeared and the enquiry date was adjourned to 19. 3. 1994. The petitioner applied for medical leave from 8. 3. 1994 to 6. 4. 1994 and the same was sanctioned by the management, but it was not brought to the notice of the enquiry officer. Even thereafter from 7. 4. 1994 to 6. 5. 1994, he extended the leave period, besides writing a letter seeking postponement of the enquiry, in spite of which, they proceeded to hold an exparte enquiry on 9. 4. 1994 and a finding was given on 16. 4. 1994 finding the petitioner guilty of the charges levelled against him, though admittedly the petitioner was on leave. Thereafter, the second respondent Management passed an order on 30. 4. 1994 dismissing the petitioner/workman from service. Aggrieved, the petitioner herein raised a dispute before the first respondent and an award was passed reinstating the petitioner with continuity of service, but without backwages and challenging this portion of the award of denial of backwages, the present writ petition has been filed.

(3.) DURING arguments, the learned counsel for the petitioner, besides narrating the facts and events, would specifically point out that in respect of similarly placed persons, the petitioner alone has been singled out and discriminated because as the secretary of the Workmen Committee, he had to espouse the cause of the fellow workmen and therefore, the management started harassing him with frequent memos. and show cause notices on flimsy grounds. Learned counsel would also submit that there is a gross violation of Section 33 (2) (b) of the Industrial Disputes Act, 1947 and the Apex Court has also held that where there is violation of 33 (2) (b) of the I. D. Act, the order of dismissal is void and inoperative and would refer to a decision of the Apex Court reported in 2004 (1) LLN 594 (P. Balasundaram v. P. O. , Labour Court) wherein it is held as follows:-"when S. 33 specifically mandates the employer to seek prior permission under S. 33 (1) or to seek an approval under S. 33 (2) (b), merely because the enabling provision of S. 33a entitling the employees to lodge a complaint for non compliance of the provisions of S. 33, the protection accorded to the employees under S. 33 for imposing the punishment of dismissal or otherwise of the workmen when the dispute before the Conciliation Officer cannot be taken away and the right for approval as a precondition for dismissal or discharge could be deprived. When once this position of law is accepted and factually such objection was raised by the employees and the same was rejected only on the ground that the employees have to approach the very Conciliation Officer under S. 33a by making a complaint, I find no merit in the submissions of the learned counsel for management in this regard. The finding of the Labour Court that is contrary to the law laid down by the Apex Court cannot be sustained.