- (1.) THE basic issue involved in this appeal is whether an order dismissing an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (referred to as the Act) is an 'award' directing 'reinstatement' within the meaning of the phrase under Section 17B of the Act.
(2.) THE issue arises out of the dismissal of the respondent No. 3 from service by the appellant. According to the appellant the respondent No. 3 refused to abide by a transfer order and used abusive language against the management. According to the respondent No. 3 the transfer order was issued mala fide. A show - cause notice was issued by the appellant to the respondent No. 3. The respondent No. 3 answered this but did not participate in the inquiry proceedings. On the basis of the enquiry report the order of dismissal was passed by the appellant. According to the appellant immediately thereafter one month's wage was sent to the respondent No. 3 and an application was made under Section 33(2)(b) of the Act before the Conciliation Officer, viz, the Assistant Labour Commissioner for approval of the order of dismissal because of an industrial dispute pending before the 7th Industrial Tribunal with regard to one Sujit Mullick. A preliminary objection was taken by the respondent No. 3 relating to the maintainability of the application under Section 33(2)(b) on the ground that he had not been paid one month's wages which is a precondition to the making of an application under that Section . This objection was overruled by the Assistant Labour Commissioner. Being aggrieved the respondent No. 3 filed a writ application (C.O. No. 660 (W) of 1986). This application was dismissed on May 13, 1987 stating that all points would be considered by the Competent Authority when the application under Section 33(2)(b) would be heard on merits finally.
(3.) ACCORDING to the appellant pursuant to notices given by the Assistant Labour Commissioner all the documents relating to the disciplinary proceedings as a result of which the respondent No. 3 was dismissed - -from the copy of the charge -sheet to the copy of the money order receipt showing payment of one month's salary to the respondent No. 3, had been produced before the Assistant Labour Commissioner. The appellant's witness was also subjected to lengthy cross -examination by the respondent No. 3. Thereafter the appellant's representative admittedly failed to appear on 2 days. On the second date namely, February 8, 1989 the Assistant Labour Commissioner passed the following order: 'The workman appears. None from the applicant company. The company also remained absent on the previous date without intimation. The application is hereby dismissed. ';