Amitava Lala, J. - (1.) This writ petition is arising out of an order being No. 75 dated September 15, 2003 passed under Sec. 15(2)(b) of the Industrial Disputes Act, 1947, West Bengal Amendment. In the order the company was directed to pay interim relief to the concerned workman at the rate of 50 % of his last drawn salary for the first three months from the date of order of reference and thereafter 75% of last drawn salary till the disposal of this reference. Such order is challenged, by filing this writ petition only on May 21, 2004'. The private Respondent's case before the Tribunal was that Respondent No. 4 was a senior engineer of the company and was a General Secretary of the Union under reference. By way of victimization he was dismissed from the service during the pendency of the conciliation proceeding without any approval under Sec. 33(2)(b) of the Industrial Disputes Act, 1947. His last drawn salary was Rs. 7020.40. After dismissal from the service he was not gainfully employed elsewhere. Due to this hardship in passing the days with his family he is entitled for the interim relief. The Petitioner company contended that the industrial dispute is not maintainable because at the relevant point of time he was not workman as defined under the law. His functions were administrative and managerial in nature. Post of .senior engineer is ah executive post. He cannot represent the union either. Under certain compulsion the management had to sit with him along with other office bearers of the union for setting the issues. The Respondent workman was dismissed from the. service after being found guilty of gross misconduct in a properly held domestic enquiry. As his salary was more than Rs. 1600/ - per mensem as required under Sec. 2(s) of the Industrial Disputes Act, 1947 the application for interim, relief is liable to be dismissed.
(2.) The Tribunal firstly entered upon the point of controversy whether the contesting Respondent is workman or not. The Tribunal found that the Petitioner joined as a Trainee Diploma Mechanical Engineer. He had to work for execution, inspection and other, sales services. Beside that he had to inspect fabrication, casting, mechinising item as per drawing and matching with finished products. He had to attend to despatching the finished products made by the suppliers, writing challans, forwarding the bills. Besides that he had to perform different paper work for the company. He had no authority to create any machine or any design in the company. He was promoted as senior engineer (inspection) in the year, 1988, but the nature of his, job was not altered by such promotion. He had no authority to manage or supervise any employee of the company or to take any disciplinary action against any workman. The union was formed in the year. 1993. Since then he is General Secretary of the union. He had to sit with management in respect of certain disputes - charter of demand, retrenchment, opening of P.F. facilities etc. A termination order was withdrawn by the management on the basis of the discussion held with him. A tripartite settlement was executed between themselves.
(3.) On March 15, 1999 a show cause notice was issued to which a reply was given by him. Thereafter charge -sheet was issued against him and ultimately a domestic enquiry was held. The person concerned who issued the chargesheet was the Presenting Officer who adduced evidence in the domestic enquiry. Name of the Enquiry Officer was not disclosed by the management before the commencement of the enquiry. Several witnesses we're examined on this point by the Tribunal, According to the Tribunal, one of the vital witnesses of the company while giving evidence before this Tribunal stated that from the post of Assistant Manager, the Managerial cadre starts. According to Exh. P/1 the Senior Manager in any stream is non -managerial staff.;