SHALIMAR PAINTS LTD Vs. THIRD INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THE third respondent was appointed a Salesman of the appellant sometimes in June, 1946. According to him he became a member of the workers' Union of the appellant and thereafter his increment was stopped. By a letter dated March 30, 1964 his employment was terminated by the appellant. Thereupon he made an application under section 33a of the Industrial dispute Act, 1947 (hereafter referred to as the Act ). The fast respondent the (Third Industrial Tribunal)before whom this application was filed, transferred the application to the second Labour Court, the second respondent. This application was contested by the appellant. The second respondent after hearing the parties held in favour of the third respondent that he was a workman and was also a concerned workman of the appellant within the meaning of section 33 of the Act. It was also found by the second respondent that he was discharged for misconduct without any inquiry and without soy opportunity to defend himself. On this finding, by an order dated March 16, 1966, the appellant was directed to reinstate the third respondent with 50% back wages. This order was challenged by the appellant on a Writ petition and a rule nisi was issued by this Court. This rule was made absolute to a limited extent. It was held that except on the question of whether the third respondent was a workman all the other findings of the Labour Court should remain and the matter was remitted back to the tribunal for a fresh hearing on the only point namely whether the third respondent was a workman within the meaning of the Act on the evidence already on record. This appeal is directed against this Judgment and order.

(2.) FOUR points were canvassed before us by Mr. Ginwalla counsel for the appellant. The first point urged by him was that the application under s. 33a of the Act by the third respondent was not maintainable at all, because the main reference under s. 10 of the act had been held by T. K. Basu, J. by his judgment and order dated March 6, 1970 to be invalid and incompetent. It was argued that since this Court had held that the reference under s. 10 of the Act was invalid, S. 33 of the Act was not attracted and therefore the application under s. 33a of the Act by the third respondent was wholly incompetent, as such an application could only be maintained where s. 33 of the act had been validly attracted and s. 33 of the Act was attracted only where there was a reference pending. It was argued that since the reference under s. 10 of the Act had been held by T. K. Basu, J. to be invalid and incompetent no order could be made by the Labour court on the third respondent's application under s. 33a of the Act.

(3.) THE second point urged by the counsel for the appellant was that the third respondent was not a workman within the meaning of that term under s. 2 of the Act. It was contended that an application under s. 33a of the Act could be maintained only when an applicant was a workman within the meaning of that term in the Act. It was argued that on the materials on record and on the case made out by the third respondent before the Tribunal, it must be held that he was not a workman.