ANTHONY GOMES Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS Rule is directed against an order of the Fifth industrial Tribunal, West Bengal, under section 33a of the Industrial disputes Act, 1947 (hereinafter referred to as the Act ). The petitioner was an inspector in charge of the respondent No. 4, Messrs. Bengal Ingot Ltd. (hereinafter referred to as the company ). At all material times, the petitioner was a leading and active member of the union of the Company and was elected as the Joint Treasurer of the Union in the year 1967. On or about October 16, 1967, the company served a charge-sheet upon the petitioner in which it was, inter alia, said that the charges mentioned in the charge-sheet if proved, would amount to major misdemeanour according to the standing order of the company. The company appointed an enquiring officer for enquiry into the charges against the petitioner. The petitioner did not appear at the said enquiry and defend himself against the charges. The enquiry was held ex parte. In the meantime, the Union approached the Management with a settlement. The petitioner raised an objection to the effect that the Union had no jurisdiction to come to a settlement regarding the petitioner. It also appears that the petitioner tendered his resignation as a member of the Union. The petitioner referred the dispute regarding him to the Labour Commissioner. On august 31, 1968 with the assistance and the concurrence of the Deputy Labour commissioner who acted as the conciliation Officer there was a settlement of the dispute between the Management and the workmen represented by the union. The Conciliation Officer signed the written settlement as a witness thereto. In terms of the said settlement the employment of the petitioner ceased with effect from August 31, 1968. He was directed to be given ex-gratia an amount equivalent to 40% of his basic wages and dearness allowance for the period from July 1, 1968 to August 31, 1968 together with a month's wages inclusive of dearness allowance as an additional ex-gratia payment. It was further provided that the provident fund dues of the petitioner would be stated in accordance with the company's provident Find Rules. It may be stated here that at the time when the settlement was effected a Government order of reference was pending in the Fifth Industrial Tribunal. The company discharged the petitioner from service by virtue of the said settlement. Thereupon, the petitioner made an application before the Tribunal under section 33a of the Act complaining that the company violated the provision of section 33 of the Act by dismissing the petitioner from service during the pendency of the reference.

(2.) THE Tribunal came to the finding that the petitioner was not discharged, punished or dismissed from service for any misconduct but he was discharged from his service in terms of the: settlement arrived at between the management and the Union with the concurrence and assistance of the conciliation Officer. In that view of the matter, the Tribunal came to the conclusion that there was no violation of the provision of section 33 as contended by the petitioner. Accordingly, the tribunal dismissed the application of the petitioner under section 33a of the act. Being aggrieved by the said order of the Tribunal, the petitioner has moved this court under Article 226 of the Constitution challenging the said order.

(3.) ON behalf of the petitioner, it has been strenuously urged that there has been violation of the provision of clause (b) of sub-section (2) of section 33 of the Act. Clause (b) provides that during the pendency of any proceeding in respect of an industrial dispute, the employer may discharge, punish or dismiss a workman for any misconduct not connected with the dispute provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. It is com ended that the order of the company discharging the petitioner from his service is really an order of dismissal on the ground of misconduct and, as such, the company should have made an application to the tribunal for approval of the action taken by the company. I am however unable to accept the contention of the petitioner that it was a case of dismissal for any misconduct. In the order it has been only said that by virtue of the tripartite settlement the petitioner will cease to be in service with effect from August 31, 1968. In this order no misconduct of the petitioner has been referred to nor any such misconduct has been made a ground for the discharge of the petitioner but, as aforesaid, the order is based on the said tripartite settlement. Accordingly, I uphold the finding of the Tribunal that the provisions of section 33 (2) (b)have not been violated by the company in discharging the petitioner from service.