The main legal point established is that the Tribunal has the authority to exercise jurisdiction under S.11A to determine the justification of dismissal based on the nature of the misconduct, and mere contravention of S.33 does not make the dismissal void.

J.B. KoShy, J.

Petitioner is challenging Ext. P7 Award of the Industrial Tribunal, Alappuzha. One Cherian Mathew (hereinafter referred to as the workman") represented by the petitioner union was engaged in the 1st respondent management which is a Research Institute. His regular duty hours started from 5 pm. On 6.12.1986, he reported only at 6.45 pm and his superior officer, Assistant Director of the establishment, asked reason for the same. On bearing the same, workman shouted at him in a very abusive language and threatened him. Again, on the next day, while his superior was waiting for bus in the waiting shed in front of I.C.R.I. the workman came there and abused him in foul language and threatened him. It continued for half-an-hour till he boarded a bus. In pursuance of the charges, a domestic enquiry was conducted. The workman participated initially and thereafter boycotted the enquiry. Enquiry Officer found him guilty of the charges levelled against him. Considering the nature and seriousness of the charges, the workmen was dismissed from service. His dismissal was referred for adjudication.

2. All the contentions raised by the workmen were considered by the Tribunal. It was found that the enquiry was conducted in accordance with the principles of natural justice. The workman boycotted the enquiry for no valid reasons. Complaint of the petitioner is that Enquiry Officer has made an application for adjournment on behalf of the management in a Labour Court case when management's advocate was unable to present in the court for sometime and he was present in the Court for some cases. This sort of representation is being done by many advocates. But, that is not a reason for bias. Enquiry officer was not a legal adviser to the management and management never engaged him in any matter previously. In any case, no proof was adduced also. A Division Bench of this Court in Writ Appeal No. 835/86 relying on the decisions of the Supreme court reported in Saran Motors (P) Ltd. v. Viswanath & anr. (1964 (2) LLJ 139) and Dalmia Cement Ltd. v. Murarilal (1970 (2) LLJ 416) held that it is too late in the day to contend that because a person is sometimes employed by the employer as a lawyer, he is thereby rendered incompetent to act as an enquiry officer (Joseph v. Labour Court -1987 (1) KLT SN. 24 P.11). In this case, enquiry officer was never engaged as a lawyer for the management in any case. Tribunal considered the question in detail in the preliminary order and on facts correctly found that there is no substance in the allegation that enquiry officer was biased. The relevant portions of the preliminary order are extracted in Ext. P7 award. I see no reason to differ from that findings and conclusions. In fact, workman was allowed to be represented by an advocate in the enquiry. After cross-examining the witnesses in the enquiry only he boycotted the enquiry, for no valid reasons. He had to thank himself for the situation. It is also seen that after the boycott enquiry was adjourned and again opportunity was given to the workman to appear in the enquiry.

3. Second contention is that petitioner is a protected workman and no prior permission as envisaged in S.33(3) of the I.D. Act was obtained before dismissing him. All trade union officials are not protected workmen. Only those workmen who are recognized as protected workmen as per S.33(4) can claim protection under section 33(3). Workmen did not prove that he is recognised as protected workman as mentioned in S.33(4). He had no case that he was recognised as protected workman as per rule 62 of the Industrial Dispute Rules. Tribunal considered this plea properly and found against the petitioner in Paragraphs 8 to 12 of the Award. I concur with the above findings.

4. Even if the concerned workman was a protected workman merely because the employer fails to file an application under S.33(3) while imposing punishment of dismissal, it will not per se make the dismissal void. The remed