Sabyasachi Mukharji, J. - (1.) In this application under Article 226 of the Constitution the petitioner Darjeeling Consolidated Tea to. Ltd., challenging the award dated the 30th August, 1915, passed by the Eighth Industrial tribunal.
(2.) It appears that Balason Tea Garden, one of the tea gardens belonging to the petitioner, charge-sheeted one of us workmen Shri B.K. Pradhan for alleged misconduct. A domestic enquiry was held. The workman concerned was ultimately dismissed from service on the 18th December, 1972. On the very same date an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 was posted addressed to the Tribunal and it was received by the Tribunal on the 30th December, 1972. But a single copy of the application was sent by the Company. Rule 70(2) of the West Bengal Industrial Disputes Rules under Section 38 of the Industrial Disputes Act, 1947, provides as follows:- "70(2) : An employer seeking the approval of the Conciliation Officer Board, Labour Court or Tribunal, as the case may be, of any action taken by him under clause (a) or clause (b) of sub-section (2) of Section 33 shall present an application in Form M in triplicate to such Conciliation Officer, Board Labour Court or Tribunal and shall file along, with the application as many copies thereof as there are opposite parties." Rule 79 of the said Rules is to the following effect : "79 : Any breach of these rules shall be punishable with fine not exceeding fifty rupees."
(3.) It is stated that inasmuch as a single copy had been forwarded no action was taken by the Tribunal on the application received under Section 33(2)(b). No case was registered and no notice was issued to the workman concerned. Thereafter the workman made an application before the Tribunal under Section 33A of the Industrial Disputes Act. Notice was issued to the Company. The Company put up its appearance on the 21st December, 1973 and filed written statement. The Company alleged in the written statement that the application under Section 33(2)(b) had been sent to the Tribunal on the 18th December, 1972 and it was received by the Tribunal on the 20th December, 1972. Thereafter the company filed an application in which it prayed that the default in sending copy of application in December, 1972 be condoned and the application be registered as a case under Section 33(2)(b) of the Industrial Disputes Act, 1947. The said application for condonation was also registered as Miscellaneous Case No. 7 of 1975. The workman concerned filed a petition of objection to the aforesaid prayer of the company. By the impugned order the Tribunal has held that the rule was mandatory in character and the plea of the company that it was due to ignorance of the rule on the part of the officer, concerned that the triplicate copy was not sent was not accepted. The Tribunal was, therefore, of the opinion that such a default could not be condoned in contravention of the express and strict provisions of the law and the company could not be allowed to proceed with the application under Section 33(2)(b) of the Act. It was, therefore, held by the Tribunal that the company had not filed an application in the proper form and that the company had committed violation of the provisions of Section 33(2)(b) of the Act and the application for condonation was dismissed. The application of the workman under Section 33A of the Act was automatically allowed. It was declared that the company had violated the provisions of the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 by not having sought in proper form approval to the dismissal of the workman. The company was accordingly directed to reinstate the workman in his service with full back wages.;