Past record of service not to be looked into.

1. The petitioner herein was working as a tally clerk in the Madras Dock Labour Board from 1961. In 1971 he was made the President of the Tamil Nadu Port Trust and Dock Labour Board Dressed Classes Workers' League (sangam) registered under the Trade Unions Act, 1926. On 17th February, 1972, a charge memo was workers to stop work and to indulge in an illegal strike. Based on those charges, the Labour Officer initiated a domestic enquiry and found him guilty of the said charges. The Deputy Chairman of the Dock Labour Board thereafter dismissed him from service by order, dated 19th April, 1972. Subsequently, the petitioner filed Writ Petition No. 1347 of 1972, questioning the order of dismissal from service. The writ petition having been dismissed, he filed Writ Appeal No. 203 of 1974. The writ appeal was also dismissed and all the grounds of attack put forward by the petitioner against the order of dismissal were rejected.

2. Subsequently, the petitioner raised an industrial dispute as regards his dismissal from service, and the Ministry of Labour, Government of India, referred the following questions to the Industrial Tribunal by an order, dated 4th March, 1980 :

"Whether the action of the Deputy Chairman, Madras Dock Labour Board, in dismissing Sri A. S. Kasinathan, tally clerk No. 173 employed in reserve pool of the Madras Dock Labour Board from service with effect from 19th April, 1972, is justified. If not, to what relief is the concerned workman entitled ?"

The Industrial Tribunal took up the reference as Industrial Dispute No. 19 of 1980. Before the Tribunal none of the parties examined any witnesses and both parties filed documents and argued their respective cases.

3. Before the Industrial Tribunal, the management contended that the Dock Labour Board is not an industry under S. 2(j) of the Industrial Disputes Act, that the dispute referred to was barred by res judicata in view of the orders passed by this Court in the writ petition as well as in the writ appeal, and that even if the dispute is not barred by res judicata, the dismissal of the petitioner from service was justified on merits. The Tribunal rejected the reference, upholding the said contentions of the management.

4. Aggrieved by the award of the second respondents rejecting the reference, the petitioner has filed the above writ petition. According to the petitioner, the issue "whether the action in dismissing the petitioner is justified" really consists of two parts, namely :

(1) Whether the finding of the domestic enquiry is justified; and

(2) whether under S. 11A of the Industrial Disputes Act, the punishment of dismissal is proper and justified.

Though the Tribunal has held that the domestic enquiry is justified, it failed to consider whether the punishment was proper and justified, and thus the Tribunal has failed to exercise its jurisdiction under S. 11A. Another ground of attack raised by the petitioner is that incitement to stop work and incitement to indulge in an illegal strike fall under standing orders 15(b)(2) and 15(b)(27) respectively, that even if the charges are found to be proved, it will not generally result in dismissal in the first instance as provided in the standing orders, and that the Tribunal's finding that the dismissal is justified in this case overlooks the said standing orders regarding punishments. It is also contended that the Tribunal, in so far as it has not taken into account the gravity of the misconduct, and his previous record, has contravened standing order 18 which is mandatory. In any event, the Tribunal has erred in holding that the disputed is barred by res judicata that in fact the questions raised in the dispute are entirely different from the questions raised in the earlier writ petition.

5. The learned counsel for the Dock Labour Board contends that though standing orders 15(b)(2) and 15(b)(27) say that ordinarily an incitement to work and incitement to indulge in an illegal strike are treated as minor misconduct