SANTO K SINGH Vs. NINTH INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THIS writ petition for certiorari and mandamus is directed against the award dated the 12th March, 1979 and certain orders passed by the 9th Industrial Tribunal in case no. 5 of 1975 under section 33a of the Industrial Disputes Act, 1947.

(2.) THE petitioner joined service under the respondent no. 3, the Fertiliser corporation of India Ltd. now renamed as Hindusthan Fertiliser Corporation at durgapur, District Burdwan as a Crane operator in 1968 and was subsequently promoted as Equipment Operator, Grade II or in other words, his duties were those of a truck driver. During the pendency of an industrial dispute between the workmen of the respondent no. 3 and their employer, the management of the employer company issued a charge sheet on 2. 5. 1974 against the petitioner containing the following charges : 1) That the petitioner fraudulently changed the gear box of truck no. WGH 7336; 2) That the petitioner had taken 31/2 days to return from Calcutta with the said truck which was considered abnormal and he had wasted company's money and time deliberately; 3) The petitioner was in the habit of taking unauthorised leave and had been absent without intimation from 22. 4. 1974 onwards as indicated in the allegations accompanying the charge sheet to the effect that the petitioner was absenting from 11. 4. 1974 to 15. 4. 1974 and again with effect from 22. 4. 1974 uptil the date of issue of the charge sheet without any information. An order of suspension was passed against the petitioner on 3. 5. 1974. Petitioner replied to the charge sheet on 4. 5. 1974. The management is said to have appointed an enquiring officer or committee for enquiring into the charges levelled, against the petitioner and the said enquiring authority is said to have submitted a report after enquiry, finding; the petitioner guilty of all the three charges mentioned in the charge sheet. Thereafter, the management is said too have accepted the findings of guilt against the petitioner in the report submitted by the. enquiring authority. An order of dismissal is said to have been passed by the General Manager who is the competent authority against the petitioner which was communicated to him by a memo dated 1729th July, 1975, signed by the Chief Engineer, Mechanical and Chief Personal Officer. In the said memo, it has also been stated that the amount equivalent to loss or destruction of property belonging to the employer caused by the petitioner will be forfeited from the amount payable as gratuity and the company's contribution to the Provident Fund of the petitioner from 1972-1973 onwards up to the date of dismissal would also be forfeited.

(3.) THE petitioner filed a complaint before the Industrial Tribunal under section 33a of the Industrial Disputes Act challenging the aforesaid order of dismissal and forfeiture of gratuity and provident Fund Contribution passed by the management, without prior permission of the Industrial Tribunal during the pendency of the 'industrial dispute'. The company contested the. complaint by filing a written statement. As the records of the domestic enquiry made against the petitioner was mislaid and not available, the employer sought to justify the action taken against the petitioner, by adducing evidence before the tribunal. The Tribunal took evidence produced by the employer as well as the petitioner and after considering such evidence came to the conclusion that the first two charges against the petitioner were not proved and were thus baseless. As regards the first part of the third charge viz. , the charge of taking unauthorised leave habitually, it was abandoned by the learned lawyer for the employer company. The second part of the third charge that the petitioner was absent without, intimation from 22. 4. 1974 onwards till the date of issue of the charge sheet, that is, 2. 5. 1974 was pressed on behalf ox the employer before the tribunal as a misconduct under item (48)of clause (24) of Certified Standing Orders as it amounted to absence for more than 10 days without intimation. The tribunal observed as follows :-