Smti. Anima Hazarika, J.

1. This Court invoking power under certiorari jurisdiction, dismissed the writ petition being WP(C) No. 3117/1999 filed by the Management M/s Kellyden Tea Estate on 27.09.2006, holding that the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short 'Act') has not been complied with which is a mandatory provision while seeking the approval of the order of dismissal from the learned Labour Court thereby affirmed the judgment and order of the learned Court dated 01.06.1999 passed in Case No. 2 of 1997. The order dated 27.9.2006 has been assailed before the writ appellate court whereby and whereunder the writ appellate court set aside the order dated 27.09.2006 remitting the matter back to answer all the questions raised in the pleadings which is now taken up for disposal. Heard Mr. SN Sharma, learned Senior counsel assisted by Mr. A Yahid, learned counsel for the petitioner. Also heard Ms. D Bora, learned State counsel appearing for respondent No. 1 and Mr. A Dasgupta, learned counsel assisted by Mr. S. Das, learned counsel appearing for respondent No. 2.

2. Appearing for the petitioner, Mr. Sharma, learned Senior counsel has assailed the order dated 1.6.1999 passed by the learned Labour Court on the pleadings set forth viz,

(a) The learned Labour Court has made out a new case which is neither pleaded by the management nor the workman while holding that the management has prevented the workman from attending his job by way of involving him in the criminal case without taking into consideration the discharge note of the hospital, including the evidence of the workman which would go to show that the workman was neither in jail nor in hospital and as such the findings arrived at by the learned Labour Court is total non-application of mind requiring interference under certiorari jurisdiction.

(b) The learned Labour Court has committed an error apparent on the face of the record in holding that the management did not take any steps to serve the notices upon the workman while he himself refused to accept the notices, meaning thereby that the workman knew the contents of the letter even though he was absenting willfully without permission or leave which has been pleaded by the workman in his written statement that he approached the management for allowing him to rejoin in the month of June 1997 even after coming out of bail, that too, after about 6 months of absence without any leave or permission which amounts to non-consideration of this vital aspect of the pleadings thereby vitiates the impugned order under challenge.

(c) The registered letters sent to the workman on which the postal department put a note, either "not found" or "refuses to accept". Without considering those registered letters and attendance register exhibited before the learned Labour Court, the learned court brushed aside those materials on record in holding that non-examination of postal peon is fatal to the case of the management based on the oral evidence of the workman but not on records exhibited by the management which is apparent on the face of record wherefor the impugned order requires interference.

(d) The service condition of the workman is regulated by the certified Standing Orders and under the certified Standing Orders, habitual absenteeism is a gross misconduct for which the management has to proceed in accordance with the provisions of Standing Orders but the learned court has committed a wrong in holding that the absence from duty and the punishment of dismissal is too harsh and the management could have avoided the proceedings under Section 33(2) of the Act which is erroneous, thus deserves to be interfered with.

(e) The learned Labour Court has failed to consider the evidence adduced by the management including the records exhibited to prove the case of habitual absenteeism on the part of the workman which vitiates the entire impugned order rendering the same liable to be set aside.

(f) A proceeding und