ASSOCIATED CEMENT COMPANIES LTD Vs. INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India praying that a writ of certiorari or any other appropriate writ or direction or order be issued against respondent 1, the industrial tribunal, Rajas-than, Jaipur, after quashing his order dated 7 January 1958, directing him to decide the application made by the petitioners under Section 33 (2) (6) of the Industrial Disputes Act, 1947 (hereinafter called the Act), in accordance with law.

(2.) THE petitioners own and manage several cement manufacturing factories, one of which is the Lakheri Cement Works at Lakheri in the State of Rajasthan. Sri Hari-prasad, respondent 2, was a workman employed in the petitioners works at Lakheri as "c" grade electrician in the electrical department. On 29 June 1957, respondent 2 was served with a chargesheet for the various acts of misconduct alleged to have been committed by him during the period from 11 May 1957 to 27 June 1967. He was suspended on 29 June 1957. It is stated in the writ petition that a full-fledged enquiry was held against Mm on 3 July and 17 July 1957, and as a result of such enquiry respondent 2 was found guilty of the charges levelled against him. By the order dated 18 July Associated Cement Companies Ltd. (Lakheri Cement Works) vs. Industrial Tribunal and. . . Page 2 of 23 panies Ltd. (Lakheri Cement Works) vs. Industrial Tribunal and. . . Page 2 of 23 1957, respondent 2 was dismissed with effect from 29 June 1957. Respondent 2 was further asked to collect his dues from the company's cash office on or after 20 July 1957. An application dated 29 July 1957 under Section 33 (2) (b) of the Act was also despatched to respondent 1 on 19 August 1957, and it was received by the tribunal on 26 August 1957. On this application, notice was given by respondent 1 to respondent 2, who submitted a written reply. It appears that certain preliminary objections, which we need not mention, as they are not material for the purposes of this writ petition, were taken on behalf of respondent 2, during the course of proceeding. Respondent 1 suo motu raised two points regarding the non-maintainability of the application. The first point was that respondent 2 was not paid wages for one month prior to or simultaneously with the order of dismissal and the second was that the application under Section 33 (2) (b) was not made to the tribunal prior to or simultaneously with the order of dismissal. By his order dated 7 January 1958, which is challenged by this writ petition, respondent 1 overruled the other contentions raised by respondent 2 but held that the petitioner had committed breaches of the provisions of Section 33 (2) (b) inasmuch as the wages for one month were not paid and so also the application required to be made under the proviso to that subsection was not made prior to or simultaneously with the order of dismissal. He expressed the view that it was extremely doubtful that order under Section 33 (2) (b) could be passed so as to operate retrospectively from the date of suspension of respondent 2. He further held that the application for approval was not made within a reasonable time. On the point of the payment of one month's wages, the petitioners had submitted an affidavit on behalf of the company that in pursuance of the dismissal order a voucher for the dues of respondent 2 including one month's wages payable under Section 33 (2) of toe Act was prepared on 20 July 1957, but he failed to collect it. According to the voucher prepared out of the wages amounting to Rs. 84. 40, a sum of Rs. 79. 42 were deducted on various grounds, leaving the sum of Rs. 4. 98 as payable. Respondent 1 was of the opinion that the workman had no opportunity to contest the validity of those deductions, and that there was no sufficient compliance of the proviso regarding the advance payment of one month's wages. The tribunal refused to treat these breaches on the part of the petitioners as merely technical and the application was dismissed summarily. Equivalent Citation

(3.) IN this writ petition it is urged on behalf of the petitioners that the respondent 1 failed to exercise the jurisdiction vested in him in dismissing the application for approval submitted by the petitioners summarily. On the point of wages it is submitted that one month's wages must be demeed to have been paid by the petitioners to respondent 2 as required by proviso of Section 33 (2) inasmuch as respondents was asked by the dismissal order to collect his dues on 20 July 1957, and the petitioners had prepared a voucher for the payment of wages after making such deductions as they were entitled to do under the law and kept it ready for payment to respondent 2 on that date but since he did not come to collect the amount of the voucher, it was credited to the unpaid wages account on 31 July 1957, and the said sum is still lying to his credit in the unpaid register. The petitioners have also justified the various deductions made by them. On the question of delay in making the application, it is submitted that the application which was filed before the tribunal was signed and verified on 29 July and thereafter time was taken in preparing the translations of the various documents to be submitted with the application. Simultaneously the petitioners were taking advice from their head office which was at Bombay. It is urged that the petitioners had furnished sufficient reason for the time taken in filing the application before the tribunal. Lastly, it is also contended that the tribunal could not have dismissed the application for approval of the action taken by them against respondent 2 without going into its merits.