High Court
Case Details
WP(C) 2607/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. J.Roy, learned counsel for the petitioner. Also heard Mr. L.P. Sharma, learned counsel along with Mr. S. Chakraborty, learned counsel represen ting the respondent No.2. This writ petition is directed against the order dated 16.12.2005 passed b the learned Presiding Officer, Industrial Tribunal, Assam, Guwahati in case No. 10/92, thereby disposing the preliminary objection raised b y the management petitioner. The objection so raised was in respect of maintaina bility of the petition that was filed by the respondent No. 2 under Section 33 A of the Industrial disputes act, 1947. 2. The aforesaid application under Section 33 A of the Act was filed by the workman who was also the General Secretary of the Bokajan Cement Corporation Em ployees Union, alleging violation of Section 33 of the Act. When the workman was dismissed from service pursuant to a domestic enquiry, a proceeding relating to certain demands of the workman was pending before the Tribunal. Thus, when the workman was dismissed, he made the said application under Section 33 A of the Ac t questioning the dismissal from service during the pendency of the proceeding.
Legal Reasoning
3. Although, in the said application, a vague statement was made that the w orkman was a protected workman but in the written statement filed by the managem ent on 11/06/1992, it was contended that the workman was not a protected workman within the meaning of the Industrial Disputes Act. Referring to the letter date d 02/07/1991, it was contended by the management i.e. the workman had submitted a list of 36 Officers of the Union to the General Manager, CCI, Bokajan demandin g recognition of the Officers as protected workmen for the year 1991-92. Replyin g to the said letter, the management vide its letter dated 06/07/1991 wrote to t he General Secretary, BCCEU to review the said demand in the light of the provis ions of the Act read with the Rules. 4. When no reply was received in respect of the clarification, the manageme nt apprised and requested the Labour Commissioner cum Registrar of Trade Unions, Assam vide letter dated 14.11.91 to get the constitution of the BCCEU examined. Copies of the said letter dated 14.11.91 were duly forwarded to the Secretary ( Labour) Assam and also to the Deputy Commissioner, Karbi Anglong, Diphu. The mat ter was taken by the Registrar of Trade Unions-cum-Labour Commissioner, who by l etter dated 26.11.91 apprised the General Secretary, BCCEU that his demand for r ecognition of 36 Officers as protected workmen was unauthorised and violative of clause-6 of the constitution of the Union, which was registered on 7.4.1977. By the said letter, it was also brought to the notice of the General Secretary, BC CEU that on the basis of a total 580 members of the Union as shown in the annual return for the year 1990, only a maximum 6 Officers of the Union can be recogni zed as protected workmen as provided under Section 33(4) of the Act and as such, the demand for recognition of 36 officers of the Union as protected workmen was untenable. 5. The learned Tribunal while answering the preliminary objection raised by the management by the impugned order dated 16.12.2005 has held that there is no application of Section 33(2)(B). However, referring to Section 33(3) of the Act , it has been held that the workman being a protected workman could not have bee n dismissed from service without the express permission in writing of the Tribun al before whom the proceeding was pending. The relevant portion of the findings that the workman was a protected workman is quoted below :- (cid:28)From the materials on the record, it transpired that the petitioner pro ved with documents that he was a ’protected workman’ Ext. D (proved in the Ref. No. 17/91 and Ext. D(2) therein prove that the petitioner was the General Secy. of the Bokajan Cement Corporation Workers Union (BCCEU) Ext. C is another docume nt of the management to prove this fact. The petitioner being the general Secy. of the BCCEU is definitely a memb er of the Executive Body of the Union he represented when the Ext. D was execute d between the parties. This being the position, the Management should have taken the express pe rmission in writing of the authority before which the proceeding is pending. The Management did not obtain express permission in writing from the authority as r equired before dismissing Pratap Borah, the petitioner. Hence, the preliminary o bjection raised by the management is rejected. (cid:29) 6. On perusal of the Ext. D and C, on the basis of which the Tribunal has r ecorded the above quoted findings, it is found that while Ext. D is the document pertaining to the note of discussion held on 6/9/90 with Bokajan Cement Corpora tion Employees Union (BCCEU) and the local management of the CCI, Bokajan, in wh ich the workman was shown as the General Secretary of BCCEU, Ext. C is a certifi cate dated 22.3.1991 issued by the Joint Senior Manager (Pers & Admn) of the pet itioner Corporation certifying about the visit of the workman in the capacity of General Secretary, BCCEU in an official meeting. 7. Mr. J. Roy, learned counsel for the petitioner submits that the said two documents do not indicate that the workman is a protected workman. He further s ubmits that the objection raised in the written statement having not been taken into consideration by the learned Tribunal in passing the impugned order, the sa me is not tenable in law. He also submits that in the impugned order, there is s ufficient compliance of Section 33 (2)(B) coupled with the fact that the petitio ner management had already complied with the requirement of one month’s notice a nd furnishing of intimation to the Tribunal, the proceeding before the Tribunal is not maintainable in law. 8. Countering the above argument, Mr. L.P. Sharma, learned counsel for resp ondent No. 2 submits that the workman being a protected workman, his service wou ld not have been dispensed with without fulfilling the requirement of Section 33 (3) of the Act. Referring to the aforesaid 2 Exts. He submits that in the said d ocuments, the workman having been recognized as the General Secretary of the Uni on, there is no manner of doubt that he is a protected workman. 9. As to what is the finding in respect of the issue as to whether the work man was a protected workman or not has been noted above. The finding that the wo rkman was a protected workman is solely on the basis of Ext.C and D. However, in the findings, there is no reference to the aforesaid categorical stand of the m anagement in their written statement. While returning the finding that the workm an is a protected workman, it was the duty of the learned Tribunal to consider t he aforesaid objection raised by the management, more particularly, when the fin ding that there was compliance of Section 33(2)(B) has been recorded in the said order. As noted above, it is also the plea of the management that it has compli 10. ed with the requirement of service of one month notice and also furnishing of in timation to the learned Tribunal in respect of the dismissal of the workman from service.
Decision
11. In view of the above, while setting aside the impugned order dated 16/12 /2005 passed by the learned Tribunal in case No. 10/92, the matter is remanded b ack to the said authority for fresh adjudication taking note of the aforesaid ob jection raised by the management taking the categorical stand that the workman w as not a protected workman. 12. Since the matter is pending for a considerable length of time, it will b e appropriate for the learned Tribunal to dispose of the entire matter finally i ncluding the aforesaid preliminary objection, which is now required to be adjudi cated upon afresh. Let the required exercise in this regard be carried out as ex peditiously as possible. 13. copy of this judgement and order. Registry shall send down the LCR to the learned Tribunal along with the 14. There shall be no order as to costs.