SHELAT, J. - (1.) THIS appeal, by special leave, dispute the correctness of the order of the High Court of Assam and Nagaland quashing the approval of an order of dismissal by the Industrial Tribunal, Assam, under S.33(2) of the Industrial Disputes Act, 1947.
(2.) RESPONDENT 1, an employee of the appellant-company, is an insured person under the Employees' State Insurance Act (34 of 1948). He was reported sick by the Insurance Medical Officer, Tinsukhia, on May, 1, 1963 and was shown under his treatment till May 29, 1963 by his certificate which also suggested that the respondent might continue under treatment until June 4, 1963. As no further information was received from respondent I or the said Medical Officer, the company wrote to the latter, who reported that respondent I had left his treatment without permission or intimation to him. By his certificate dated October 5, 1963 the Insurance Medical Officer, however, informed the management that respondent 1 was under his medical treatment. That certificate being contradictory to the earlier information given by the Medical Officer, the company treated the absence of respondent 1 from June 4 to October 5, 1963 as unaccounted for. Respondent 1 sought to resume duty on November 2, 1963 but was placed under suspension. A charge-sheet for unauthorised absence for more than 10 days without leave was served upon him. Respondent 1 gave his reply to the said charge-sheet but, as it was evasive and lacked in particulars, the company gave him further opportunity to explain. On November 22, 1963 respondent 1 gave a further reply again without giving any facts explaining his absence. On November 26, 1963 a Board of Enquiry, consisting of the executive manager, one Budhia and two others, gave a personal hearing to respondent 1. The Board found that respondent 1 had remained absent without leave for more than 10 days and thereupon the company passed an order of dismissal under Standing Order 14 of its Standing Orders. As there was then a pending dispute between the company and its workmen, the company filed an application under S.33 of the Industrial Disputes Act before the Industrial Tribunal, Assam, for approval of its said order. In these proceedings respondent 1 contended that since 1962 he was a victim of leprosy and had, therefore, to be operated twice, that as a result of the operations he suffered from ulcer and therefore after consulting the Insurance Authorities he had gone first to Hajoi and then to Nowgong Civil Hospital for treatment, that the company sought to terminate his service by a letter dated July 31, 1963, but that letter was withdrawn by another letter dated October 9, 1963. He pleaded that he was in the hospital at Nowgong till November 1, 1963 and when he went to resume his services the next day with a certificate of fitness, the company refused to allow him to do so and suspended him, served him with a charge-sheet and ultimately dismissed him after the said enquiry. He urged that the enquiry was not a proper one, that he was dismissed without reasonable cause, and that he was victimised for his union's work. Later he filed an additional statement urging that he was a protected workman and that the Employees' State Insurance authorities had accepted the certificate issued by the Nowgong hospital but had not yet given their final decision with regard to the payment of sickness benefit to him under the said Act. At the hearing of the said application the company examined the said Budhia, and also produced certain documentary evidence which was partly proved on admission and partly through the said Budhia. Respondent 1 also produced documentary evidence and examined himself and one Jojan Thakar, a union representative.
(3.) THE Tribunal rejected the plea that respondent 1 was a protected workman. Since the fact of the workman's absence without leave for more than 10 days from June 4 to October 4, 1963 was not in dispute, the management had not examined any witness during the domestic enquiry. It was for the workman to explain his admitted absence by showing that from June 4, 1963 and onwards he was treated at Nowgong hospital, that the hospital had issued a certificate to that effect and that certificate was accepted by the State Insurance authorities. The Tribunal held in these circumstances that though opportunity was given to respondent 1 he did not adduce evidence to explain his absence, that therefore the domestic enquiry was properly held and was not vitiated by any violation of the principles of natural justice.;