J. B. MEHTA, M. P. THAKKAR, J. B. MEHTA, J.

( 1 ) THE petitioner Trade Union of the Employees which had raised the dispute of one worker Dharmendra Singh has filed this petition because the Government has refused to make the Reference as per the order at Annexure F dated January 17 1977 This Badli worker Dharmendra Singh who was working in the opponent No. 2 Mills from 1971 had been discharged by the Mills on December 17 1975 on the ground of various charges of misconduct alleged against him. The matter had been taken up before the Industrial Tribunal for getting approval under sec. 33 (2) (b ). The Industrial Tribunal had by the order dated February 9 1976 in terms observed that a prima facie case was disclosed and proper inquiry having been made the pre-conditions for such approval application were satisfied. However having regard to the limited jurisdiction which the Tribunal possessed at this stage of approval it was in terms held by the Industrial Tribunal that the approval was granted subject to the right of the concerned employee to seek reference challenging the impugned order made against him. The Tribunal that is why in terms noted that the conditional approval had been granted to the order of termination of employment at Exhibit 6 and this concerned employee was at liberty to seek a reference in an appropriate forum challenging the said order. The petitioner-Union therefore raised this dispute by its letter at Annexure C of July 4 1976 raising various grounds in support of this demand of reinstatement with back wages. The inquiry was challenged on various grounds that the witnesses were not independent and that there was not an iota of evidence as to the charge of drinking. Even the rickshaw-driver had not been examined and even regarding the threat the concerned Shri Shukla has not deposed a single word about it. The order was even attacked on the ground that it was vague as it never disclosed which charges had been established and therefore it was attacked as an arbitrary order and its legality and justification had been challenged by raising this dispute. The Company had also filed its statement before the conciliation Officer and after the failure report the Government passed a very cryptic order dealing with the whole matter in a cavalier callous manner. In the impugned order at Annexure F dated January 17 1977 it is merely stated that the conciliators report had been taken into consideration and the Government was satisfied that in this case about reinstatement of the concerned worker Dharmendra Singh there was nothing which was required to be put for adjudication of the Industrial Tribunal because the Union had not given proper reasons in support of its demand. Therefore the Union has filed the present petition.

( 2 ) THE Government has passed its order under a complete misconception of its jurisdiction in these labour matters and has not borne in mind the most relevant factors in this case especially of this salutary change in law which had been made after the enactment of sec. 11-A in the Industrial Disputes Act 1947 because in case of such industrial disputes relating to discharge or dismissal of a single workman even if the reference was made and the Tribunal was satisfied that the order of discharge or dismissal was not justified it can set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any as it thought fit or give such relief to the workman including the lesser punishment instead of discharge or dismissal as the circumstances of the case might require.

( 3 ) THE impact of this new provision has been examined in the decision in Workmen of Firestone Tyre and Rubber Co. v. The Management A. I. R. 1973 Supreme Court 1827 at 1241 12 by pointing out that sec. 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both the points as to whether the misconduct is proved or not and if proved whether it would warran

Click Here to Read the rest of this document