- (1.) THE petitioner is a Company registered under the Companies Act and owns a factory situated at Batanagar, 24-Parganas. The respondent No. 2, Sri mrinal Shankar Das Gupta was working as a piece rated workman in the Leather department of the petitioner's factory at batanagar. The respondent No. 2 is alleged to have remained absent from 6. 2. 1967 on different grounds. He was declared fit by the Medical Officer of the Bata Workers Sickness Benefit society on the 30th March, 1967. According to the petitioner, the respondent no. 2 acted contrary to the advice of such Medical Officer, did not resume duty and remained out of work since then. It appears that the respondent no. 2 reported for duty on 5. 4. 1967 with a certificate from one Homoeopathic doctor to the effect that he was suffering from fever and bacillary dysentry up to 4. 4. 1967. The Company however disbelieved the said medical certificate and issued a chargesheet on 5. 4. 67 calling upon the respondent No. 2 to show cause why disciplinary action under Clause 22 (b) of the Standing Orders and Rules of the Company should not be taken against him for such habitual irregularities. The respondent No. 2 showed cause and a departmental enquiry was held. In the said departmental enquiry, the respondent No. 2 was given full opportunity to defend his case and to produce documents as well as witnesses on his behalf and to cross-examine the witnesses who were produced on behalf of the management. After the proceedings were concluded, the Enquiry Officer sent a report wherein he found the charges to have been proved. The petitioner-Company thereafter terminated the service of the respondent No. 2 in accordance with the provisions of the standing Orders and Rules of the Company and informed the respondent No. 2 that he would be paid 14 days wages in pursuance of Clause 22 of the Standing orders. It was also stated in the letter dated 6th July, 1967, being annexure 'd' to the petition that the petitioner had been remitting on that day per money order one month's wages to the respondent No. 2 and that the petitioner had been taking steps for filing petition under Sec. 33 (2) (b) of the industrial dispute Act (hereinafter referred to as the Act ). Thereafter an application was filed under Sec. 33 (2) (b) of the Act seeking the approval of the action taken by the petitioner in view of the pendency of the dispute before the said Tribunal. In the said application it is alleged that the respondent No. 2 from 6. 2. 1967 was out of work often on different grounds. Lastly, he was declared fit by the Medical Officer of the Bata Workers' Sickness benefit Society on 30. 3. 1967 but he defined his advice and did not resume duties and remained out of work since then. It is alleged in the said application that out of 41 working days, i. e. from 6. 2. 1967 to 4. 4. 1967 he worked only for 8 days though he was declared medically fit by the Medical Officer.
(2.) THE Third Industrial Tribunal dismissed the said application by its order dated 31st December, 1968. The tribunal was of the view that there was no violation of the principles of natural justice in holding the enquiry. But according to the Tribunal the instant case does not come within the purview of Clause 22 (b) of the Standing Orders. The Tribunal took the view that it is true that since 6. 2. 67 and prior to the date of the chargesheet, the respondent no. 2 worked only for 8 days. According to the Tribunal these circumstances could be no reason for the Company's taking action against the respondent no. 2 in terms of Clause 22 (b), when his absence on all the other working days prior to the date of the chargesheet was with the sanction of the Company. The Tribunal relied upon the report of the Enquiring Officer which showed that the absence of the respondent No 2 on the other days was authorised absence as he was on sanctioned leave, ordinary airsick. The Tribunal, therefore, was of the view that only for his absence from 31. 3. 67 to 4. 4. 1967, and not for any other absence, the Company could have taken disciplinary action against the respondent No. 2. According to the Tribunal therefore absence for only five days amounted to "temporary absenteeism" mentioned as a minor offence in Clause 21 (b) of the Standing Orders. Proceeding on that view the Tribunal held that the Company had no justification to terminate the employment of the respondent No. 2 in accordance with Clause 22 (b) of its Standing Orders.
(3.) AGGRIEVED by the said order of the Tribunal the petitioner moved this Court and obtained a rule nisi. The learned Counsel for the petitioner contended that where a dismissal of a worker cannot be atributed either to any malafide or to any unfair labour practice on the part of the employer, the Tribunal has no competence and/or jurisdiction to with hold the permission on the ground that in its view the action taken was not justified. Reliance was placed in support of the above contention upon the decision of the Supreme Court in the case of (1) Central India Coal Field Ltd. v. Rambilash Shognath A. I. R. (1961) S. C. 1189.;