1. Termination of service of the petitioner in 1992, on proven misconduct, upheld by the first respondent/Labour Court in Ext.P1 Award in I.D.No.191 of 1993, is the subject matter involved in this case.

2. Whether non-compliance of the statutory prescription under section 33(3) of the Industrial Disputes Act, (hereinafter referred to as the ‘Act’) without obtaining ‘prior permission’ of the Industrial Tribunal/Labour Court for awarding punishment in respect of a ‘protected workman’ during the pendency of any proceeding before the Industrial Tribunal/Labour Court will result in automatic reinstatement and whether the intimation given by the Trade Union, furnishing the list of ‘protected workmen’ to the Management will enable the concerned workman to be recognised as a ‘protected workman’ by the Management, without any positive act of such declaration, are the ‘legal questions’ involved. Whether the petitioner workman is a ‘protected workman’ and whether ‘typing work’ was part of the duty attached to the post of “Commercial Assistant” held by the petitioner at the time of termination of service are the ‘factual disputes’.

3. The petitioner joined service of the second respondent as a ‘Typist – Clerk’ in the year 1975. Later, he was provisionally promoted as ‘Commercial Assistant’ in the year 1982 and was confirmed in the said post. The case of the petitioner is that he was an office bearer of the Trade Union in the second respondent Company and was actively taking part in such activities. In connection with the service conditions of the employees, a charter of demands was submitted before the Management in 1988. But the negotiations failed and the rift between the Managements and the Union/workers got widened. The dispute raised on the said issue was finally referred for adjudication to the Industrial Tribunal, Alappuzha, where it was numbered as I.D.201 of 1990 and was pending.

4. In the meanwhile, the second respondent transferred the petitioner to another Unit on 13.06.1989, also referring to the ‘typing work’ he had to perform while holding the post of ‘Commercial Assistant’ in the new Unit. The said order was accepted by the petitioner, who joined duty at the destination, as the transfer was not under challenge. However, nearly one month after the transfer, the Union representing the petitioner raised the ‘dispute’, stating that the job of ‘typing’ was not part of the duty attached to the post of ‘Commercial Assistant’ and hence that the petitioner was not liable to discharge the said function. It appears that the said course was pursued when the Management alerted the petitioner to carry out the instructions as to the typing works, which was not acceded to by the petitioner, who chose to contend that it was not part of his job and that he was never doing the same from 1982, on promotion as ‘Commercial Assistant’.

5. In view of the insubordination and non-discharging of the duty in respect of the ‘typing work’, the Management observed that there was clear misconduct on the part of the worker, which accordingly was ordered to be enquired into. An advocate was appointed as Enquiry Officer. Witnesses were examined on either side and documents were produced, adducing evidence to sustain the rival stand. On conclusion of the enquiry, the Enquiry Officer arrived at a finding that the charges levelled against the delinquent employee were proved, based on which, the Management issued a show-cause notice, proposing the punishment of ‘termination’ from the service. The petitioner submitted a reply, mainly pointing out that the enquiry findings were wrong and perverse and that ‘typing work’ was not part of the duty of the ‘Commercial Assistant’ and he was not liable to do the same. Since the explanation was not satisfactory, the Management considered the matter and on arriving at a finding that the enquiry was conducted in accordance with law and the materials on record justified the finding and reasoning of the Enquiry