Decided on September 03,1994



V.D.GYANI, J. - (1.)This Writ appeal arises out of the JUDGMENT & ORDER dated 30th October, 1992 passed by the learned Single Judge of this Court in Civil Rule No. 748/87. The appellants deal with a duly registered company under the Companies Act, 1956, having its registered office at Doom Dooma in Tinsukia district. It owns seven tea estates and carries on business of growing and manufacturing tea.
(2.)At the material time, the respondents No. 2 to 15 were employees of the Company working in different offices and gardens. They were ordered to be transferred by order dated 30.;11.78 to different offices and factories of different tea estates belonging to the Company. They however refused to abide by the said order and failed to resume duties at their respective places of transfer despite extensions of time granted for the purpose. The appellants Company was, therefore, obliiged to initiate disciplinary proceedings against the respondents who were served with charge-sheets, their replies having not been found satisfactory, a domestic enquiry was ordered. The respondents failed to turn up or participate in the said enquiry which proceeded ex-parte. The enquiry officer found the respondents guilty of charges, considering the report and other materials available on record, the appellant Company decided to dismiss the respondents from service by order dated 16.2.79.
(3.)At that time, that is, while passing the dismissal order on 16.2.79, a reference in respect of the bonus payable to the appellants workmen was pending adjudication before the Industrial Tribunal, Assam at Dibrugarh. The appellants therefore made an application before the Tribunal under Section 33 (2) (b) of the Industrial Disputes Act, 1947, it was registered as Misc. Case No. 1/79 praying for approval of the dismissal order and also offered one month's wages to each of the respondents. It referred two questions to the Tribunal - (1) relating to toe justifiability of the respondents transfer and the relief to which they were entitled to; (2) the justificiability of the abolition of senior posts, such as, Factory Superviser, Garden Superviser and creation of intermediary post instead. In the meanwhile, on an application being made by the respondents No. 2 to 15, the Govt. of Assam referred the dispute regarding the respondents' transfer and the relief to which they were entitled to the Tribunal at Dibrugarh. This reference was registered as Reference No. 4/79. Having learnt about the: pending reference before the Tribunal on 22.2.79, the order of dismissal as passed against the respondents were kept in abeyance and an application under Section 33 (.1) (b) of the Act was filed before the Tribunal seeking permission to dismiss the respondents. This application was registered as Misc. Case No. 2/79. In the meanwhile, the respondents were placed under suspension pending permission of the Tribunal, but having paid full wages from 17.2.79 to 22.2.79 during the pendency of the aforesaid Reference No. 4/79, some of the respondents, Respondents No. 6,9,12 and 14 approached the appellant with an unconditional apology praying that they be allowed to joint their duties. They were accordingly allowed to join their duties in June, 1979. The other respondends also followed suit and they were also allowed to join duties subject to the decision of the Tribunal in the aforesaid Misc. Case No. 2/79. While these two references, viz. Reference No. 4/79 and Misc. Case No. 2/79 were still pending before the Tribunal, the respondents approached the appellant with a proposal that they would not be pressing the Reference No. 4/79 and, in that case, the Management should also not press for adjudication of Misc. Case No. 2/79. It was agreed and decided to file a joint petition before the Tribunal on the aforesaid terms, accordingly a joint petition was filed by both the management and the workmen and on the basis of the said petition an award was passed by the Tribunal on 5.2.82. It was published on 29.5.82. That petition and the award have been filed as Annexure-1 and 2 with the writ petition. Sometime in November, 1982, the respondents No. 2 to 15 filed an application under Section 33 C (2) of the Act before the Tribunal claiming the full wages for the period. They were placed under suspension. This application was registered as Misc. Case No. 4/83. The appellants company resisted the case raising objections of limitations, maintainability of the application under Section 33C(2) of the Act and refuting the contentions made tin the application. This petition as filed by the appellants is available on record as Annexure-3 to the petition.

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