JUDGMENT

GOSWAMI, J.:— This is an appeal at the instance of the workman on certificate of the Calcutta High Court form the decision of the Division Bench reversing the earlier judgment and order of the learned single Judge in an application under Article 226 of the constitution directed against the award of the First Industrial Tribunal, West Bengal, madeunder Section 33A of the Industrial Disputes Act.

2. The appellant (hereinafter to be described as the workman) was employed by M/s. Hindustan Motors Ltd. (hereinafter to be described as the company) since August 3, 1949. On August 3, 1956, the workman entered into an agreement of service with the company wherein the first clause reads as follows:-

The Employer agrees to and does hereby engage the services of the employee for a period of 5 years beginning with dated 1-6-56 and thereafter until this agreement shall be determined by either party hereto giving to the other 3 months notice in writing of such intended termination.

Provided that in case employer finds the employees work satisfactory, employer shall have the option to extend the period of service by a further term of 3 years.

3. The workman went on two months leave to Banaras for a change some time in 1960. He requested for extension of leave for one month on medical grounds. He actually sent an application on August 8, 1960, along with a medical certificate praying for extension of his leave. The company asked the workman to get himself examined by the companys medical officer within ten days. As the workman was lying ill at Banaras, he could not comply with the directions of the company. On September 5, 1960, he sent another telegram followed by a formal application enclosing a medical certificate for extension of his leave. On September 15, 1960, the company sent a letter to him terminating his services on the ground of habitual absence which is a misconduct under the companys standing orders.

4. At the time of this termination there was an industrial dispute pending between the company and its workmen. Since the company did not ask for approval of its order from the Industrial Tribunal the workman made a complaint to the Tribunal, under Section 33A of the Industrial Disputes Act (briefly the Act). The company contested the application. The Tribunal made its award on 27-9-1962. Ordering reinstatement of the workman with 50% of his back wages for the period of his forced unemployment as compensation. The Tribunal directed that the award should be given effect not later than one month of the publication of the award which was on October 26, 1962.

5. After a little over two months of the publication of the award, to be precise, on February 4, 1963. the company intimated to the workman to rejoin his service. The workman reported for duty the following day on February 5, 1963. On February 16, 1963, the company invoked clause (1) of the agreement which we have set out earlier and terminated the services of the workman by paying three months salary in lieu of notice.

6. This is the second round of litigation with which we are concerned in this appeal. Since an industrial dispute was pending even on this date of termination of his service and the company did not apply to the Tribunal for approval of the order, the workman made a complaint to the Tribunal, as on the previous occasion, under Section 33A of the Act. the Tribunal accepted the complaint and held as follows:-

In my opinion, the company has really dismissed the petitioner for a piece of conduct which must have appeared as misconduct in the eye of the company.

The Tribunal observed that the company in substance dismissed the workman for misconduct since the workman became odious to the company on account of his earlier success before the Tribunal in his application under S. 33A of the Act. The Tribunal, therefore ordered his reinstatement with full back wages for the period of his forced unemployment as compensation. This time the company did not accept the award although