ASHOK KUMAR PRADHAN Vs. P O I T ORISSA

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) Learned Counsel for the Petitioner submits that though the learned Presiding Officer, Industrial Tribunal relied upon various decisions in his award, but he has misconstrued the same. In the case of Punjab Beverages Pvt. Ltd. v. Jagadish Singh and Anr., 1978 2 LLJ 1, the Supreme Court has categorically laid down in paragraph-11 that the first issue which is required to be decided in a complaint filed by an aggrieved workman under Section 33A of the Act, is whether the order of discharge or dismissal made by the employer is in contravention of Section 33 of the Act. The foundation of the complaint under Section 33A of the Act is in contravention of Section 33 and if the workman is unable to show that the employer has contravened Section 33 in making the order of discharge or dismissal, the complaint would be liable to be rejected. However, if the contravention of Section 33 is established, the Tribunal shall have go into the question whether the order of discharge or dismissal passed by the employer is justified on merit and decide whether on merits the order of discharge or dismissal passed by the employer is justified. If it is, the Tribunal would sustain the order treating the breach of Section 33 of the Act as a mere technical breach. It, therefore, transpires that when the workman fails to establish the contravention of Section 33, the application under Section 33A is to be rejected as not maintainable. Only when the workman succeeds in proving such contravention, the Tribunal will be authorized to examine the legality, propriety and correctness of the order of discharge or dismissal, on merit.

(3.) In the impugned award, it appears the learned Tribunal came to the conclusion that the workman has failed to prove the contravention of Section 33. Hence, the learned Tribunal should have rejected the said application under Section 33A as not maintainable.