N. Kumar J.

1. This appeal is preferred by the Management challenging the order passed by the learned Single Judge, who has set-aside the order passed by the Assistant Labour Commissioner refusing to recognize the protected workmen as sought for by the Union. Further he has directed the Management that all the persons in respect of whom a request was made to recognize as protected workmen should be recognized.

2. For the purpose of convenience, the parties are referred to as they are referred to in the writ petition.

3. The petitioner Fouress Engineering Karmika Sangha is a Trade Union and represents the workmen of the 2nd respondent i.e., Fouress Engineering (India) Limited since the year 1998. The petitioner approached the Management of the 2nd respondent by a letter dated 21.04.2000 seeking recognition of five workmen under Section 33(4) of the Industrial Disputes Act read with Rule 62 of the Industrial Disputes (Karnataka) Rules, 1957. According to the petitioner, there was no response from the 2nd respondent. Therefore, the petitioner approached the Assistant Labour Commissioner by letter dated 08.05.2000 seeking intervention in the matter and to accord recognition as protected workmen to the named five employees. The 2nd respondent was notified to send their objections to the said request. They contended that there is yet another registered Union representing some of the employees and therefore five persons could not be recognized. On 02.02.2001 they filed additional objections contending that two of the five employees in respect of whom recognition is sought have been dismissed from service with effect from 27.01.2001. Hence, they should not be given a status of protected workmen. After considering the rival contentions, the 1st respondent was of the view that Sri.R.Kumaraswamy, Organising Secretary and Sri.H.Jairam, Executive Committee Member cannot be given the status of protected workmen as they have been dismissed from service. Omitting those two names, recognition was given to the remaining three names as protected workmen. Aggrieved by the said order, the petitioner preferred the writ petition.

4. The learned Single Judge, who heard the matter was of the view that on the day the representation was made, those two workmen had not been dismissed form service. If recognition had been given, it would have dated back to 1st May of the year in which the representation was made. Therefore, that cannot be a ground for refusing recognition. Therefore, he allowed the writ petition, set-aside the order of the 1st respondent and directed the Management to give recognition to those two workmen and he also held the order of dismissal to that extent would stand nullified. Aggrieved by the said order, the Management has preferred this appeal.

5. Sri.S.N.Murthy, learned Senior counsel appearing for the appellant - Management assailing the impugned order contended that for the purpose of recognition under Section 33(4) of the Industrial Disputes Act, 1947 (for short hereinafter referred to as ‘the Act') those two persons were not workmen as defined under Section 2(s) of the Act. Therefore, the question of recognizing them as protected workmen would not arise. Consequently, he contended on the day the 1st respondent passed an order, they had been dismissed from service. Therefore, he could not have granted the recognition sought for to a dismissed employee. It runs contrary to the object of the Act. Thirdly, he contended that the Union was formed in the year 1988. On 15.06.1989 there was violence in the factory premises. The Management lodged police complaint against several workmen including the aforesaid two persons, which resulted in the jurisdictional police filing charge-sheet against those two workmen. Thereafter, Departmental Enquiry was initiated against them and Article of charge was served on 27.07.1999. When the Departmental Enquiry was in progress, to overcome the consequences of the Departmental enquiry a