- (1.) The appellant, Hindustan, Motors Ltd., has in this appeal, challenged the judgment of A. K. Mookerji J. whereby the learned Judge discharged the Rule Nisi issued on the application of the appellant company under Article 226 of the Constitution.
(2.) The respondent no. 2, Saroj Kumar Maheswary has been an employee of the appellant company since April 20, 1955. At the relevant time, he was an Assistant Development Engineer of the company and was getting a pay of Rs. 825/- per month. The Assistant Factory Manager of the appellant company by his letter dated June 8, 1970 (Annexure I to the writ petition) terminated the service of the respondent no. 2 with effect from June 9, 1970 under Section IV of the rules of service on the ground that his employment was no longer conducive to the interest of the company. At the time the service of the respondent no. 2 was terminated, an industrial dispute was pending before the 4th Industrial Tribunal. The respondent no. 2, being aggrieved by the said order of termination, made an application under Section 33-A of the Industrial Disputes Act, 1947 before the said Tribunal. In that application, it was alleged by him that he was a workman of the appellant company, that though the letter of termination was couched in a guarded language, the real object of the appellant company was to dismiss him for the alleged misconduct, not connected with the dispute pending before the Tribunal. Accordingly, it was contended that as no permission of the Tribunal for such action was taken by the appellant in terms of the proviso to Section 33 (2) (b) of the Act, the order of termination was illegal and liable to be set aside. Further, it was alleged that sometime in April or early May 1970, pressure was put on the respondent no. 2 by the management to resign. The respondent no. 2 made a representation to Shri B. M. Birla, the Chairman of the appellant company seeking his protection against the arbitrary action of the management. He also approached the appellant company, both personally and in writing on several occasions seeking justice, but in vain. He also made a representation to the Labour Commissioner, West Bengal, and a conciliation proceeding was started by the Assistant Labour Commissioner, Sreerampore. But that proceeding had to be abandoned in view of the decision of this Court striking down Section 2-A of the Act. He prayed that the termination of his service should be held to be illegal being in contravention of Section 33 of the Act and he should be reinstated with full back wages and other benefits.
(3.) The appellant company appeared before the Tribunal and filed an application raising two preliminary objections to the maintainability of the application of the respondent no. 2 under Section 33-A and the jurisdiction of the Tribunal to entertain the same. It was contended that the respondent no. 2 was not a workman within the meaning of Section 2 (s) of the Act. Further, it was contended that as the service of the respondent no. 2 was terminated simpliciter and as he was neither discharged nor punished for any misconduct, the application was not maintainable. The appellant also filed an application on June 7, 1973. In that application, it was stated inter alia that the appellant did not wish to adduce any evidence on the preliminary points raised by it and would like to make its submission on the admitted facts on record and reserved its right to adduce evidence on the question, whether the respondent no. 2 was a workman or not, at the time of final hearing if it was held that the said question could not be decided on the admitted facts but required evidence. It was further stated by the appellant that it would not cross-examine the witnesses of the respondent no. 2. The respondent no. 2 examined himself and filed some documents. The appellant did not either adduce any evidence or cross-examine the respondent no. 2. The Tribunal by its order no. 12 dated June 7, 1973 came to the findings that the respondent no. 2 was a workman within the meaning of Section 2 (s), and that the termination of his service was made on the ground of misconduct in contravention of Section 33 (2) (b). It was also held by the Tribunal that the evidence adduced in the case along with the pleadings of the parties was sufficient to come to the finding whether the respondent no. 2 was a workman or not. In that view of the matter, the Tribunal held that the application of the respondent no. 2 under Section 33-A of the Act was maintainable.;