K. Raviraja Pandian and S. Manikumar, JJ.
1. Workman of Blue Star Ltd., is the appellant. By order in W.P. No. 14421/1997, dated August 24, 2006, the Writ Court has set aside the order of the Industrial Tribunal, Madras, passed in Approval Petition No. 61/1991, dated February 24, 1997 and remitted the matter to the Tribunal, giving liberty to the parties to produce documentary evidence to prove all the allegations, including the issue of protected workman. The correctness of the same is put in issue. For the sake of brevity, Industrial Disputes Act shall be Referred to as 'the Act' and the Tamil Nadu Industrial Dispute Rules, 1958 as 'the Rules.'
2. Facts leading to the Appeal are as follows:
The appellant was a Mechanic in the first respondent establishment. For certain acts of misconduct said to have committed by him on March 20, 1989 and February 22, 1990 respectively, two charge memos, dated March 23, 1989 and March 26, 1990 were issued to him. As the explanation was not satisfactory, two domestic enquiries in respect of the charges were held. With reference to a charge Memo, dated March 23, 1989, evidence was let in on the side of the Management. On the basis of the findings of the Enquiry Officer, a second show-cause notice, dated January 21,1991 was issued to the appellant. After considering the explanation, dated May 9, 1991, he was dismissed from service. At the time of dismissal of the appellant from service, I.D. No. 83/1990 was pending before the Tribunal and therefore, the first respondent-Management filed Approval Petition No. 61/1991, under Section 33(2)(b) of the Industrial Disputes Act, 1947 and sought for approval of dismissal.
3. Opposing the said petition, the appellant had contended inter alia that he was an Office bearer of the Trade Union and one of the protected workmen for the year 1990-91. It was the further contention that the Management had failed to get prior permission under Section 33(3)(b) of the Industrial Disputes Act, 1947 before dismissing him from service and therefore, the Approval Petition is not maintainable. The appellant had further submitted that on June 26, 1990, the Trade Union sent a list of Office bearers to be recognised as 'protected workmen' and his name was also included in the said list. It was also the contention of the appellant that out of five Management Witnesses mentioned in the Charge Memo, dated March 23, 1989, his request for examination of Mr. Gulwadi and Mr. Sankaran, Management Witnesses, was erroneously rejected by the Enquiry Officer. Since the Enquiry Officer had denied an opportunity to cross-examine the Management Witnesses, he made a representation dated April 17, 1990, for change of Enquiry Officer. When the same was pending consideration with the Management, the Enquiry Officer closed the domestic enquiry on April 20, 1990 without giving any reasonable opportunity. In these circumstances, the appellant has submitted that the Approval Petition is not maintainable on facts and law and hence, prayed for dismissal of the approval petition.
4. Upon considering the rival submissions and evidence, the Industrial Tribunal, Madras held that at the time when the order of dismissal was passed, the appellant was a 'protected; workman' and since the Management did not get prior permission, before dismissing him from service from the Competent authority, as contemplated under Section 33(3)(b) of the Industrial Disputes Act, the petition filed by the Management seeking approval is not maintainable. The Tribunal has further held that the domestic enquiry was not conducted in a fair and reasonable manner and that there was denial of opportunity to the appellant to cross-examine the Management Witnesses as well as to let in defence evidence. For the abovesaid reasons, the Tribunal held that the domestic enquiry conducted by the Management was not in accordance with law and consequently, the findings of the Enquiry Officer, were vitiated.
5. Aggrieved by the same, the Management filed W.P. No. 14421/1997, contending inter alia that the appellant was not a 'protected workman' on the date of dismissal and that he was also given a fair and reasonable opportunity to defend himself in the domestic enquiry. It was further contended that inspite of many adjournments granted to the appellant for cross-examination of the Management Witnesses, he has failed to avail the opportunity and boycotted the enquiry by making false representation, stating that his defence assistant was engaged in another enquiry. It was also the contention of the first respondent-Management that even though opportunity was given to the workman to produce defence witnesses on April 20, 1990, he had failed to produce and examine them. For the abovesaid reasons, the Management has sought for reversal of the order made by the Industrial Tribunal in the Approval Petition No. 61/1991. Per contra, the appellant has submitted that as per Exhibit W-2, dated November 20, 1988 , he was a protected workman for the year 1990-91 and inasmuch as the request of the Trade Union under Section 65(2) of the Tamil Nadu Industrial Dispute Rules, 1958, was not rejected, the same ought to of the Management and therefore, the appellant continued to be a 'protected workman.'
6. On consideration of the relevant (provisions, Section 33(3) of the Industrial Disputes Act and Rule 65 of the Tamil Nadu Industrial Dispute Rules, 1958, with reference to the enquiry proceedings, the learned single Judge found that the appellant did not produce ;any document to establish that he was a protected workman; that despite reasonable opportunity, the appellant did not avail the same and examine the witnesses, but having regard to the conclusion of the Industrial Tribunal, that the domestic enquiry was an ex parte enquiry, learned single Judge observed that the order of the Tribunal required interference, In such circumstances, the Writ Court, remitted the dispute back to the Industrial Tribunal to consider the case, giving an opportunity to both parties to produce documents to prove all the allegations, including the issue of protected workman. The learned single Judge further observed that if the Tribunal comes to the conclusion that there was no proper enquiry and the principles of natural justice are not followed, the Tribunal must give reasonable opportunity to the management to adduce evidence on the issue of misconduct. Aggrieved by the order of the learned single Judge in remitting the matter back to the Tribunal, the workman/appellant has filed the present Writ Appeal.
7. Assailing the order, Mr. N.G.R. Prasad, learned Counsel for the appellant submitted that the order of the Industrial Tribunal, dated February 24, 1997 In A.P. No. 61/1991 in I.D. No. 83/1990 is a fair and well considered order, dealing with the aspect of the rights of the protected workman and the violation of the principles of natural justice in the domestic enquiry conducted by the Management. Drawing the attention of this Court to the sequence of events from July 17, 1989 upto April 3, 1990, he submitted that the appellant had appeared on all the dates and participated in the enquiry. On April 3, 1990, the appellant has sent a letter of adjournment and the domestic enquiry was adjourned to April 6,1990. On that date, the appellant sought for an adjournment on his behalf, stating that his representative, Thiru. G. Lakshmanan was unwell and the appellant had promised that he would cross-examine all the management witnesses on the next adjourned date.
8. Inviting the attention of this Court to the record of proceedings of the domestic enquiry, learned Counsel for the appellant submitted that though the Management had fixed the enquiry for examination of three witnesses, except M.W.3, M.Ws.2 and 4 were not present, as they were not in station and therefore, the appellant's representative, Thiru G. Lakshmanan, could complete the cross-examination of M.W.3 alone. He further submitted that when the enquiry was adjourned to April 16, 1990 for cross-examination of M.Ws.2 and 4, the appellant had sought for an adjournment to the next day on ground that his defence assistant was to attend another enquiry at Anna Salai. But the enquiry officer declined to grant adjournment and insisted the appellant to cross-examine M.Ws.2 and 4, either by himself or through some other defence assistant. Learned Counsel for the appellant also submitted that the presenting officer seemed to have verified, as to whether the appellant's representative was present at Mount Road, for another enquiry or not and without giving an opportunity to cross-examine the said Management Witness, by granting a day's time, simply closed the evidence on the Management side.
9. Learned Counsel for the appellant further submitted that when the delinquent and his representative were ready on April 10, 1990 to complete the cross-examination of all the Management Witnesses, witnesses M.Ws.2 and 4 did not attend the enquiry and therefore, to facilitate their appearance the enquiry was adjourned to April 16, 1990. Whereas, on April 16,1990 when the delinquent's representative, could not be present for the enquiry, for the above said bona fide reasons, the enquiry officer behaved in a most unilateral and prejudicial manner, disallowed his request and in a biased manner, closed the avenue of cross-examination of the above said management witnesses by not granting even a days adjournment.
10. It is the further contention of the learned Counsel for the appellant that during the course of domestic enquiry, on many occasions, the enquiry officer had granted adjournments, on the request of the Management Representative to suit their convenience and therefore, when a request on the side of the appellant to put off the enquiry by one day was sought for, it should have been granted by the enquiry officer. Closure of the Management Witnesses, without providing an opportunity to cross-examine them would amount to violation of the principles of natural justice.
11. Learned Counsel for the appellant further submitted that aggrieved by the attitude and the conduct of the enquiry officer, the appellant preferred a representation, dated April 17, 1990 to the Management to change the enquiry officer, as he was biased. However, there was no reply. While he said representation was pending consideration, the appellant had insisted not to go ahead with the enquiry, unless a reply was received from the management. Though the letter, dated April 17, 1990 addressed to the management was sought to be marked, the enquiry officer refused to mark the said letter and simply closed the enquiry proceedings ex-parte.
12. Learned Counsel for the appellant further submitted that when the violation of principles of natural justice in not providing sufficient opportunity to cross examine the management witnesses and allowing him to examine his defence witness, is per se apparent on the face of it, the finding of the Industrial Tribunal on the above aspect, ought to have been upheld. But the learned single Judge, while answering the said point, without any discussion to the facts of the case on hand, simply relied on the decision of this Court in Binny Ltd. Engg. Divn. v. P.O., Industrial Tribunal (2003) 3 LLN 1102, and had come to an erroneous conclusion that the appellant did not avail the opportunity provided to him. He further submitted that except paragraph 17 of the impugned judgment, there is no discussion 1 of the Tactual aspects and the applicability of the relied on case. In view of the infirmity in the conduct of the domestic enquiry, he submitted that the learned single Judge ought to have confirmed the order of the Industrial Tribunal, dated February 24, 1997 and dismissed the writ petition filed by the management,
13. Learned Counsel for the appellant further submitted that as per Exhibit W-2, dated November 20, 1988 , the appellant was a protected workman during the year 1990 and continued to be so, for the successive years. He further submitted that when the list of protected workmen was sent to the Management, there is no statutory ground to object to the said list and in the absence of any refusal or re-ejection of the same, the names of the persons considered in the list should be recognised as protected workmen and even if there is no acceptance or communication, from the management, the workman would still be entitled to the statutory protection, as 'Protected Workman' under the Industrial Disputes Act at the relevant period and therefore, the findings of the learned single Judge that the appellant was not a protected workman is contrary to the judgment of the Division Bench of the Gujarat High Court in R. Balasubramanian v. Carborandum Universal Ltd. : 1978-I-LLJ-432. He further submitted that 4 Rule 65 of the Tamil Nadu Industrial Tribunal Rules, is in pari materia with the Industrial Disputes (Bombay) Rules, 1957.
14. Placing reliance on a decision of the Supreme Court in Karnataka State Road Transport Corporation v. Lakshmidevamma : AIR 2001 SC 2090 : (2001) 5 SCC 433 : 2001-II-LLJ-199, learned Counsel for the appellant submitted that it is not open to the Management to let in additional evidence at any stage of the proceedings and if they had intended to do so, the management ought to have sought' for permission of the Court/Tribunal in the written statement itself to lead additional' evidence to support its action. It is his further contention that though the approval petition No. 61/1991 was filed as early as on April 30, 1991, the Management took nearly five years in taking out an application to lead additional evidence and in such circumstances, the learned Judge has failed to consider that once the management did not avail the opportunity to lead evidence on the merits of the charges before the Industrial Tribunal, Madras, there is no question of giving one more opportunity and therefore, the directions contained in the impugned order, giving Opportunity to produce additional evidence is totally unwarranted For the above said reasons, learned Counsel for the appellant submitted that there was absolutely no reason to disturb the well considered order of the Industrial Tribunal and the findings recorded by the learned single Judge, is perverse, warranting interference, On the above grounds, he prayed that the order impugned in this appeal be set aside.
15. Answering the ground of attack of violation of principles of natural Justice, Mr. S. Ravindran, learned Counsel for the first respondent-Management, submitted that for the charges levelled against the appellant the enquiry which commenced on July 17, 1989 ended on April 20,1990. The first witness was examined on July 17, 1989 and one Thiru G. Lakshmanan, represented the appellant. Though the domestic enquiry was periodically adjourned for examination of the management witnesses, the delinquent took the assistance of more than one representative to cross-examine the management witnesses. That on August 9, 1989 and December 1, 1989, Thiru. G. Subramani, represented the appellant. There were 18 sittings in the domestic enquiry. Even if the appellant had any difficulty in getting the assistance of Thiru. G. Lakshmanan, who represented him at the time of the commencement of the domestic enquiry, he could have sought for the assistance of some other representative and the same would have been granted by the enquiry officer.
16. Referring to the sequence of events from the date of commencement of the enquiry, learned Counsel for the first respondent submitted that on April 3, 1990, the appellant sought for an adjournment on the ground that his representative was unwell and therefore, the enquiry was posted to April 6, 1990, That on April 6, 1990, though Thiru. G. Lakshmanan, representative of the appellant: was present, an adjournment was, sought for on the ground that he was sick. Therefore, the enquiry was adjourned to April 10, 1990 and the said representative completed the cross-examination of M.W.3. On April 16, 1990, when the domestic enquiry was posted for cross-examination of M.Ws.2 and 4, the appellant had informed the enquiry officer that his representative was engaged in another enquiry and sought for art adjournment. It was ascertained from Anna Salai establishment that the said representative, Thiru. G. Lakshmanan, had not attended any enquiry, as informed by the delinquent officer and therefore, the enquiry officer, having found that a false representation had been made by the delinquent, refused to* grant adjournment and insisted the appellant to cross-examine the witnesses by himself or to take the assistance of any other person. Since the appellant had refused to cross-examine M.Ws.2 and 4, the enquiry officer had no other' option except to close the evidence on the Management side and posted the enquiry to April 20, 4990 for examination of defence Witnesses, On April 20,1990, even though the appellant as well as his representative, Thiru. G. Lakshmanan were present, they refused to examine the defence witnesses on the ground that they had sent a letter, dated April 17,1990 to the Management to change the enquiry, officer and till a reply was received, they would not participate in the enquiry. Since the appellant had refused to participate in the enquiry, the enquiry officer had no other option, excepting to close the enquiry. Therefore, he submitted that sufficient opportunity had been given to the appellant. In addition to that, he submitted that though the learned single Judge having arrived at the correct conclusion that there was compliance of the principles of natural justice, he ought not to have remitted the matter back to the Tribunal with liberty to the parties to let in evidence.
17. Answering the contention that the appellant was a protected workman entitled to the safeguards provided under the Industrial Disputes Act and on the question of maintainability of the Approval Petition under Section 33(2)(b) of the said Act, learned Counsel for the Management, placing reliance on Rule 65 of the Tamil Nadu Industrial Tribunal Rules, 1958, submitted that every registered Trade Union connected with the Industrial establishment should communicate to the employer, before 30th September of every year, the name and address of those officers as employer in that establishment and as in its opinion, should be recognised as 'workman' during the subsequent calendar year, and as per Rule 65(2) of the said Rules, there should be a positive communication from the employer to the Union in writing within 15 days from the receipt of the names and addresses of the protected workman from the Trade Union and in the absence of any positive decision by the employer and communication in writing, as contemplated in the rules, there is no automatic recognition of 'protected workman.'
18. Referring to Sections 25-M, 25-N and 25-O of the Industrial Disputes Act, in respect of strikes, lockouts, retrenchment or closure of an undertaking, he submitted that if the authority to whom an application for permission to effect lay off, retrenchment or closure is not disposed of by an order passed within 60 days, then the authority must be deemed to have granted permission. But in the absence of such deeming provision in Section 33 of the Industrial Disputes Act or Rule 65 of the Tamil Nadu Industrial Dispute Rules, no workman can claim the status of a protected workman as a matter of right, on mere submission of a list of names by the Union.
19. Placing reliance on decisions in P.H. Kalyani v. Air France, Calcutta : AIR 1963 SC 1756 : 1963-I-LLJ-679, Canara Workshops Ltd. v. Addl. I.T. 1986 (1) LLN 825 and T.N.C.S. Corporation Emp. Union v. T.N.C.S. Corporation Ltd. 1998 I LLJ 728 (Mad), learned Counsel for the first respondent submitted that unless there is a positive action recognising and communicating the status of the protected workman in writing, there is no question of] applying the principle of deemed fiction. He further submitted that the rules relating to the requirement of grant of recognition and communication in writing as contemplated under Rule 62(2) of the Industrial Disputes (Karnataka) Rules, 1957, subject matter of the decision in Canara Workshops Ltd. v. Addl. I.T. (supra), is in pari materia with Tamil Nadu rules. He further submitted that the rules framed by the State Governments across the country in respect of Protected Workmen are almost identical. Therefore, he submitted that the appellant is not a protected workman in terms of Section 33 read with Rule 65 of the Tamil Nadu Industrial Dispute Rules.
20. As regards the last contention of leading evidence in support of the charge and the order of dismissal, Mr. S. Ravindran, learned Counsel for the first respondent Submitted that even when the approval application No. 61/1991 was pending before the Industrial Tribunal, Madras, an Application No. 54/1996 filed by the management, permitting them to lead evidence on the merits of the charge: was allowed on September 20,1996 has become final and therefore, it is not open to the appellant to contend otherwise in this Writ Petition. He further submitted that the ratio decidenti in Karnataka State Road Transport Corporation v. Lakshmidevamma (supra), that the Court/Tribunal shall direct the parties to lead additional evidence, including the production of the documents, before they are concluded, if it is just and necessary in the 4 interest of justice, is squarely applicable to the facts of this case.
21. Learned Counsel for the first respondent further submitted that the enquiry proceedings could be set aside, if the enquiry officer is biased, but the observations of the Industrial Tribunal holding that rightly or wrongly, the workman had some doubts about the enquiry officer and unless his doubts were cleared, the enquiry officer ought not to have closed the same is erroneous; He further submitted that no evidence was let in before the Industrial Tribunal to support the contention of bias and mala fide. In these circumstances, he submitted that the Tribunal ought to have come to a clear cut conclusion as to whether there was any act of bias on the part of the enquiry officer and having regard to the nature of the allegations made in the requisition letter, dated April 17,1990 to change the enquiry officer, the allegation of mala fide of bias is not proved by concrete evidence. Hence, he prayed that the order impugned be sustained.
Heard the learned Counsel for the parties and perused the materials available on record.
22. Before adverting to the facts of this case, it is relevant to extract certain statutory provisions and the rules relating to 'protected workman.' Sub-sections (2), (3) and (4) of Section 33 of the Industrial Disputes Act are as follows:
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been has been made by the employer to the authority before which the proceeding is pending for approvalof the action taken by the employer.
(3) Notwithstanding anything contained in Sub-section (2), no employer shall, during the pendency of such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute:
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether the dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.
(4) In every establishment, the number of workmen to be recognised as protected work-men for the purposes of Sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a; minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.
23. Rule 65 of the Tamil Nadu Industrial Disputes Rules, 1958 deals with the projected workman and it reads as follows:
(1) Every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer, before the 30th September of every year, the names and addresses of such of its officers as are employed in that establishment and as in its opinion, should be recognized as 'protected workman' during the subsequent calendar year. Any change in the incumbency of any such officer shall be communicated to the employer by the Union within fifteen days of such change.
In case of any dispute between the employer and any registered trade union in respect of matters connected with the recognition of 'protected workman', the 30th September of an year shall be taken as the date for determining the representative character of each union for the purpose of this rule.
(2) The employer shall, subject to Sub-section (4) of Section 33, recognise such workmen to be 'protected workman' for the purposes of Sub-section (3) of the said Section and communicate to the union, in writing, Within fifteen days of the receipt of the names and addresses under Sub-rule (1), the list of workmen recognised as 'protected workman':
Provided that where the number of officers suggested for recognition as 'protected workman' falls short of the number of officers for whom recognition can be given in respect of the union concerned, the employer shall intimate the fact to the union and the union shall thereupon be entitled to select additional officers to be recognised as 'protected workman.' Such selection shall be made by the union and communicated to the employer within five days of the receipt of the employer's letter. On receipt of the communication, the employer shall act as specified in this sub-rule.
(3) Where the number of officers suggested for recognition by the union exceeds that for which recognition can be given according to the Sub-section (4) of Section 33, the required number shall be selected according to the order of priority suggested by the union.
(4) Where there is more than one registered trade union in the establishment, the maximum number of workmen to be recognised as 'protected workman' shall be so distributed by the employer among the unions, that the number of recognised 'protected workman' in the individual unions bear, as nearly as possible, the same proportion to one another as the membership figures of the unions. The employer shall, in that case, intimate in writing to the Secretary or principal officer of the union the number of 'protected workman' allotted to it.
24. An application under Section 33(2)(b) of the Industrial Disputes Act is for grant of approval for dismissal already effected, whereas, an application tinder Section 33(3)(b) is for permission to effect dismissal of an employee. In cases covered by Section 33(3)(b), an employee is guilty of charges, for which, the dismissal is proposed and he will be kept under suspension, pending disposal of the application for permission and when permission is granted, it will relate back to the date of application.
25. Pleadings disclose that by letter, dated September 26, 1990, the Blue Star Employees: Union submitted a list of five workmen, Including the appellant for recognition as 'protected workmen' for the year 1991, In view of the loss of representative character of the union and also Its benevolent attitude, the management decided not to accord recognition to all the five workmen mentioned in the Trade Union's letters. According to the first respondent-management, when the management did not sent any reply to the union's letter, dated September 26, 1990, within 15 days from the, date of receipt of the list, the union should have taken up the matter with the Labour Officer. However, the union did not do so and therefore, according to the management, no workman was recognised as 'protected workman' for the year 1991. In this factual background and statutory provisions, we propose to examine as to whether the appellant is a protected workman entitled to the safeguards provided under the statute and the rules made thereunder.
26. As per Rule 65(1) of the Tamil Nadu Industrial Tribunal Rules, 1958 every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer, before the 30th September of every year, the names and addresses of such of its officers as are employed in that establishment and as in its opinion, should be recognised as 'protected workman' during the subsequent calendar year. As per Sub-rule (2) to Rule 65, the employer shall, subject to Sub-section (4) of Section 33, recognise such workmen to be 'protected workman' for the purposes of Sub-section (3) of the said Section and communicate to the union in writing, within fifteen days of the receipt of the names and addresses under Sub-rule (1), the list of workmen recognised as 'protected workman.' The above rule contemplates two aspects, viz:, (i) Recognition of such workman to be a protected workman for the purpose of Sub-section (3) of the said Section and (ii) Communication to the union in writing within fifteen days of the receipt of the names and addresses under Sub-rule (1).
27. In P.H. Kalyani v. Air France, Calcutta (supra), the services of the appellant therein were terminated for dereliction of duty. Dealing with the contention of the appellant therein that he was a protected workman, the Supreme Court at Paragraph 5, opined that:
The question whether a particular workman is a protected workman or not for the purpose of Section 33, Industrial Disputes Act is a question of fact, and the finding of the Labour Court on such a question will generally be accepted by the Supreme Court in appeal from the award of the Labour Court as conclusive.
28. In R. Balasubramanian v. Carborandum Universal Ltd. (supra), relied on by the learned Counsel for the appellant, three petitioners have challenged the order of the Industrial Tribunal. The Tribunal held that the complaint under Section 33(3) of the Act was not tenable and that they were not protected workmen at the time when the order of dismissal was passed and therefore, there was no contravention of Section 33(3) of the Act. According to them, at the relevant time, they were the office bearers, viz., President, Vice-President and Treasurer, respectively, of the Carborundum Universal Union, Okha. For the previous year, these three petitioners were recognised as protected workmen as per the decision of the Conciliation Officer, dated December 23, 1971. For the year in question, before the scheduled date, i.e., September 30, 1972, i.e., on September 25, 1972, the trade union communicated to the company the names of five officers of the trade union, who were employed in this company's establishment that they should be recognised as protected workmen under Section 33(3) of the Industrial Disputes Act read with Rule 66 of the Industrial Disputes (Bombay) Rules, 1957. This application was received by the company on September 29, 1972, and within the prescribed period of 15 days from the date of receipt of that letter, the company farted to give any reply or recognise the list of five workmen submitted by the concerned trade union Excepting the change of one of the Office bearers, others, remained, the same in the list submitted on September 22, 1972. Thereafter, the union approached the Conciliation Officer, as the company had failed to declare the name of the protected workman.: The Conciliator passed an order on November 28, 1972, recognising five persons mentioned in the Union's application, dated September 25, 1972 as protected workmen. The Company passed an order of dismissal of three main: Office Bearers on the morning of November 25, 1972. Aggrieved by the order, the Office Bearers have filed a complaint under Section 33-A before the Tribunal. The said complaint was dismissed by the Tribunal.
29. In the above reported decision, it was contended that inasmuch as the Trade Union had already sent a list of five workmen before the prescribed date, 30th September, of every year, Rule 66 casts a mandatory obligation that the employer shall recognise these workmen as protected workmen and therefore, bound to communicate the recognition of the such officers, within 15 days from the date of receipt of the application of the Trade Union, subject to the statutory provision made in Section 33(4). It was submitted that in view of the mandatory language of Rule 66(2), the employer can refuse to recognise these protected workmen only if he can bring the case within the statutory grounds provided in Section 33(4). Per contra, it was the contention of the Management therein that the men fact, a letter was written to the Manager the company mentioning the names of the Office-bearers and that they should be recognised as protected workmen alone would not be sufficient. It was further contended that there must be some positive action on the part of the employer with regard to the recognition of the employees as protected workmen before they could claim to be protected workmen under Section 33. On consideration of the rival submissions with regard to the statutory rules, the Division Bench of the Gujarat High Court, at Paragraph 9, held as follows:
In the present case even on a plain reading of the statutory language of Rule 66(2), the employer has a mandatory obligation to recognise and communicate to the union in writing within 15 days of the receipt of the Union communication a list of workmen recognized by him as protected workmen', unless he can plead that the statutory limits or conditions under Section 33(4), are not observed. Unless that exception is made out by the pleading raised in reply to the union's communication, the employer cannot escape its mandatory obligation to recognize the list of protected workmen submitted by the union has per its own choice When the statutory limits under Section 33(4) have been fully observed by the union and the recognition is claimed An a single union factory of only the minimum number of five persons who are admitted offices, even on the plain literal construction of this procedural Rule 66(2) it could never be urged that the employer has any discretion left to refuse such recognition. In such a case even if the employer fails to reply, there can be no question of any bona fide dispute which would have to be resolved under Rule 66(4) merely because the employer fails to carry out his statutory obligation under Rule 66(2), by not sending the express recognition. In such a case even if the express recognition is not there, such recognition would have to necessarily implied because any other construction would enable the employer to escape statutory obligation by his own default and would frustrate the very purpose of this benevolent scheme of widest statutory protection to such 'protected workmen.'
30. The very same issue came up for consideration before the Karnataka High Court in Canara Workshops Ltd. v. Addl. I.T. (supra). The second respondent therein, a clerk in the service of the Canara Workshops Limited, on his refusal to work in sales Section, was dismissed after enquiry. The Management made an application to the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947, seeking approval of its action. Simultaneously a complaint was filed by the workman under Section 33-A on the basis that he was a protected workman and that his dismissal from service without seeking prior permission was invalid. The Tribunal accepted the complaint and held that the workman was a protected workman and that the management cannot dismiss him without obtaining prior permission under Section 33-A of the Act. It was further held that, once breach of Section 33 of the Act is established, the management was, not entitled to let in evidence on the merits of the case and to justify the dismissal. The Tribunal directed reinstatement of the workman giving liberty to the management to take, fresh action on the same cause of action. Aggrieved by the same, the management preferred a Writ Petition before the High Court. Placing reliance on Sub-rules (2) and (4) of Rule 62 of the Industrial Disputes (Karnataka) Rules, 1951, the employer inter alia contended that unless; there is a positive action by the management, in response to the list sent by the Trade Union, no one can claim to be a protected workman and therefore, the findings of the Tribunal on the question of the fact, was perverse. After analysing the decisions of the Supreme Court in P.H. Kalyani v. Air France, Calcutta (supra) case and R. Balasubramanian v. Carborandum Universal Ltd. (supra), the Karnataka High Court, at Paragraph 12, held as follows:
The Act and the rules do not leave it to the sweet will and pleasure of the employer to deny the protection to the protected, workmen under Section 33(3) by withholding the written communication which the employer is bound to give under Rule 62(1). If any employer fails to send a communication of acceptance of the list of protected workmen within fifteen days from the date of receipt of the list from a trade union, whether intentionally or otherwise, on the sixteenth day itself or any day thereafter the trade union concerned could raise a dispute before the Conciliation Officer under Rule 62(4) about the failure of the employer to send the communication as required Under Rule 62(2) and the Conciliation Officer, is under a duty to approve the list of protected workmen, after notice to both the parties and hearing them, at the earliest and his order in that behalf would be final. The employer cannot escape.
(ii) But if a trade union fails to send a communication of keeps quiet even after the employer failed to recognise the protected workmen within the stipulated time by not making a demand before the employer and securing the recognition or by not raising a dispute before the Conciliation Officer and securing an order from him, the trade union stands deprived of the protection of Section 33(3) to its office bearers by its own in action. A trade union therefore must be vigilant in securing recognition as protected workman and if it is vigilant, the employer cannot avoid the recognition of the required number of workmen as protected workmen, at his sweet will and pleasure.
(iii) If the intention of the rule making authority was that if within fifteen days after the receipt of the letter from the trade union seeking recognition as protected workmen to its office bearers the management fails to send a reply, the workmen whose names are mentioned in the communication shall be deemed to be protected workmen, the rule would have been appropriately worked. In the absence of any such provision, it is impermissible to hold that just because a communication had been sent under Rule 62(1) and there had been no reply from the employer within fifteen days, the persons whose names are found in the communication sent under Rule 63(1) becomes protected workmen.
31. A similar issue came up for consideration before this Court in T.N.C.S. Corporation Emp. Union v. T.N.C.S. Corporation Ltd. (supra), in which the petitioner's union inter alia contended that by virtue of Rule 65 of the Tamil Nadu Industrial Disputes Rules, 1958, the members of Union mentioned in the list are protected workmen, even though the management hate not recognised the list within the stipulated time. It was a matter relating to transfer of employees. Per contra, on behalf of the management, it was contended that during the relevant period, there was no recognition as contemplated under Rule 65 and in the absence of any such recognition, the workmen who were transferred cannot make any claim on the ground that they were protected workmen beyond the scope of Section 33 of the Act. Relying on the decision of the Supreme Court in P.H. Kalyani v. Air France, Calcutta (supra) case, this Court held that the petitioners therein cannot claim the protection under Section 33(3) of the Act.
32. Explanation to Section 33(3) of the Industrial Disputes Act dealing with 'protected workman', reads that,
Explanation : For the purposes of this sub-section, a 'protected workman', in relation to any establishment, means a workman who, being a member of the executive or other office-bearer of a2 registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.
33. Reading of the provision of Section 33(4) of the Industrial Disputes Act and Rule 65 of the Tamil Nadu Industrial Disputes Rules, makes it clear that a workman claim protection under the Statute, if his status is recognised either by the employer or by the authority, who is vested with the power to do so. Perusal of Section 33(4) of the Act reveals that the object of the legislation is give protection to workmen from unwanted victimisation, so that they can discharge the duties of the Trade Union and such protection is limited only to one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, if more than one union in the establishment. When a dispute arises between the employer and any registered Trade Union, in any manner connected with the recognition 'protected workman' under Rule 65 of the Rules, the dispute shall be referred to the concerned Labour Officer.
34. While considering the usage of the word 'deemed' in the Central Sales Tax Act, the Supreme Court in Consolidated Coffee Ltd. v. Coffee Board, Bangalore : AIR 1980 SC 1468 : (1980) 3 SCC 358 Paragraph 11, observed that:
the word 'deemed' is used a great deal in modern legislation in different senses and it is not that a deeming provision is every time made for the purpose of creating a fiction. A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the Legislature has made such a deeming provision. In St. Aubyn v. Attorney-General Lord Radcliffe observed thus:The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes What is obvious, what is uncertain and what is, in the ordinary sense, impossible.
35. It is well settled that the Legislature is competent to create a legal fiction, in other words, to enact a deeming provision for the purpose of assuming existence of a fact which does not really exist, it is also well settled that while interpreting a provision stating a legal fiction, it is the duty of the Court to ascertain the consequences, which are incidental or inevitable corollaries to the giving effect to the fiction. While doing so, the Court has to make all the provisions in the statute workable.
36. While dealing with the construction of statute, in Anwar Hasan Khan v. Mohd. Rafi : AIR 2001 SC 2984 : (2001) 8 SCC 540 the Supreme Court, at paragraph 8 held as follows:
It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute of rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision content with the object sought to be achieved. A well-known principle of harmonious construction is that effect should be given to all provisions and a construction that reduces one of the provisions to a 'dead letter' is not harmonious construction.
37. As per Rule 65(5) of the Tamil Nadu Industrial Disputes Rules, when a dispute arises between the employer and any registered trade union in respect of matters connected with the recognition of 'protected workman' under this rule, the dispute shall be referred to the Labour Officer concerned may call for and scrutinise such of the words as may be considered to be relevant and shall give the parties a reasonable opportunity of stating their case before giving a decision. The decision given by the Labour Officer shall be final. Provided that the decision shall have effect only for a period of six months from the date of such decision or till the 30th September of the year immediately following' the year referred to in Sub-rule (1), whichever is earlier.
38. In the instant case it is the specific intention of the Management that in view the loss of the representative character of the union and its benevolent attitude, the management decided not to recognise any one of the five workmen mentioned in the Union's letter, dated June 26, 1990 as protected workmen and that there was no reply within the statutory period. It is the contention of 5 learned Counsel for the management, the Union have not taken up the matter with the Labour Officer, on the failure of the management to recognise the list of members as 'protected workmen', The word 'dispute' referred to in Rule 65(5) of the Tamil Nadu Industrial Disputes Rules 1958, occurring in Rule 65 under the caption 'Protected Workmen' should be construed to mean that the disputes between the employer and any trade union in respect of matters connected with the recognition of the protected workman, shall be referred to the Labour Officer concerned.'
39. Before the Tribunal, no document was produced on behalf of the appellant/workman to prove that he was recognised as protected; workman either by the management or Labour Officer, except Exhibit W-2, the letter of the Management, dated November 23, 1988, recognising the appellant as protected workman for the year 1990. The learned single Judge, who adjudicated the issue of protected workman with reference to the documents produced by the appellant has observed that in the absence of any acceptance of the Management, declaring him as protected workman, he should have referred the matter to the Labour Officer.
40. Rule 65(5) enables the aggrieved person to refer the dispute to the Labour Officer, whose decision shall be final. If Rule 65(2) has to be interpreted in such a manner to confer deemed status on the failure of the management to communicate in writing within 15 days from the date of receipt of the Union's letter, then Rule 65(5) cannot be given effect to and such interpretation would make Rule 65(5) otiose/redundant. The rights and obligations sought to be enforced by the appellant are those created by the Industrial Disputes Act and the rules framed thereunder. When the dispute relates to the enforcement of a right or an obligation created under the Act, then the original remedy available to the workmen is to get adjudication of the dispute under the Act before the competent authority, viz., the Labour Officer under Rule 65(5) of the Tamil Nadu Industrial Disputes Rules.
41. Explanation to Section 33(3) of the Act states that a protected workman should be recognised in accordance with the rules made in this behalf. Statutory rules provide that the status should be recognised by the employer and the obligation to communicate to the Trade Union, in writing within 15 days from the date of receipt of the letter or application from the Trade Union. It is well settled that when the statute or the rules vest certain powers with the authority to. Exercise the powers in a. particular manner, the said authority should exercise the power in the manner provided for in the statute and it cannot be done in any other manner. The principle that where the power is given to do certain things in a certain way, things must be done in that way and not otherwise is well settled in T. Ramamoorthy v. Secretary, Sri Ramakrishna Vidyalaya High School, and Ors. (1998) W LR 641, Captain Sube Singh v. Lt. Governor of Delhi : AIR 2004 SC 3821 : (2004) 6 SCC 440 State of Jharkhand v. Ambay Cements : AIR 2005 SC 4168.
42. In T. Ramamoorthy v. Secretary, Sri Ramakrishna Vidyalaya High School and Ors. (supra), at Paragraph 6, held as follows:
This principle that where a power is given to do a certain thing in a certain way, tilings must be done in that way and not otherwise and that the other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the power as also its exercise by the management under Section 22 of the Act.
43. In Captain Sube Singh v. Lt. Governor of Delhi (supra) the Supreme Court, at Paragraph 29, held as follows:
29. In Anjum Ghaswala a Constitution Bench of this Court reaffirmed the general ml that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka (sic)). The statute in question requires the authority to act in accordance with the Rules 4 for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with Sub-clause (i) thereof.
44. The Supreme Court in State of Jharkhand v. Ambay Cements (supra) at Paragraph 27, held as follows:
27. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is settled rule of interpretation and where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case of obtaining prior permission is mandatory, therefore, no compliance of the same must result in cancelling the concession made in favour of the grantee, the respondent herein.
45. Section 33 of the Act does not provide for any deeming recognition and it also states that recognition has to be accorded in the manner as provided in the rules. Therefore, in the absence of a statutory provision it has to be seen whether there is any implied recognition. Rule 65(2) of the Tamil Nadu Industrial Tribunal Rules enable the Trade Unions to communicate to the employer, before 31st September of every year of their intention for recognition of employees of their choice for conferment of status of protected workmen under the Act and the employer has to communicate the Trade Union in writing within 15 days from the date of receipt of the letter or application from the Trade Union. When the substantive Section 33(3) of the Act does not create a deeming status, the said provision cannot be widened by subordinate legislation, viz., Tamil Nadu Industrial Disputes Rules, made under Statute. In the light of the judgments of Supreme Court regarding the manner in which the power has to be exercised by authority, when a statutory recognition to be conferred in a particular manner provided for in the rules, this Court cannot construe or presume that the Manager by its failure has deemed to have conferred such status. Legislation has mandate to provide certain safeguards to a class of workmen under Section 33(3) of the Act read with Rule 65 of the said Rules framed thereunder. Extension of such protective umbrella not being recognised by the Management granted by the competent authority in a manner set out in the rules, cannot be conferred by deemed recognition. Scrutiny of the rule does not lead to any inference that there is a deeming provision, by which, the workmen included in the list submitted by the union, are deemed to be recognised, protected workman, on the failure of the management to communicate its decision within 15 days from the date of receipt of the letter.
46. In view of the specific language employed in Section 33 of the Act and Rule 65(2), of the Rules framed thereunder requiring specific recognition in the manner as provided for, we are of the considered view that there must be a positive action on the part of the employer to recognise the employees mentioned in the list of Union as Protected Workmen before they could claim protection; guaranteed to them under Section 33 of the Industrial Disputes Act and the concept of deemed recognition' cannot be impliedly imported into the Section to provide legislative safeguards. Unless there is a positive decision; taken by the management in this regard and communicated to the trade union in writing within the stipulated time, it cannot be said that the workmen have automatically acquired the status of 'protected workmen', on the failure of; the employer to communicate within 15 days. Our view is also fortified by the decision of the Apex Court in P.H. Kalyani v. Air France, Calcutta (supra). In view of the above decision, the contention of the appellant that he is a protected workman cannot be countenanced in law.
47. Record of proceedings before the domestic enquiry shows that the enquiry which commenced on July 17, 1989, was closed on February 20, 1990 after 18 sittings, during which period, the Management, had examined five witnesses on their side. The Chief examination of all the five witnesses was completed on November 13, 1989. The cross-examination of M.Ws.1 and 5 was completed on July 28, 1989 and December 1, 1989 respectively. The cross-examination of M.W.3 which commenced on February 7, 1989 has been adjourned to January 3, 1990 and January 31, 1990. For the reason that the appellant's representative could not be present, the enquiry fixed on February 1, 1990, has been adjourned to February 9,1990. On that day, the cross-examination of M.W.3 was done in part and again, the enquiry has been adjourned to February 20, 1990 for continuation of cross-examination. On that day, the appellant has sought for an adjournment on the ground that his representative, Thiru. G. Lakshmanan, was indisposed of and considering his request, the enquiry officer has adjourned the same to April 3, 1990, on which date, instead of appearing before the enquiry officer, the appellant has sent an adjournment letter.
48. Record of proceedings, dated April 3, 1990 further show that all the management witnesses to be cross-examined, including M.W.3 were present. The enquiry Officer has observed that the enquiry had been protracted for a long time, though sufficient grounds were available to proceed against the appellant ex-parte, he was inclined to adjourn the enquiry to April 6, 990 to provide an opportunity. On that date, the delinquent's representative has sought for an adjournment on the ground of ill-health. Though the enquiry officer has requested him to complete the cross-examination of M.W.3, the representative has expressed his inability due to health grounds and therefore, the enquiry was adjourned to April 10,1990, on his undertaking to complete the cross-examination of all the witnesses. On April 10, 1990, witnesses, M.Ws.2 and 4 were not available and therefore, on the request of the Management's representative, the enquiry stood adjourned to April 16, 1996. On April 16, 1990, the delinquent has sought for an adjournment on the ground that his representative was engaged in another domestic enquiry in Anna Salai. Inasmuch as the domestic enquiry had taken a considerable time, the enquiry officer has informed the appellant to seek for some other assistant or cross-examine the witnesses, by himself.
49. The enquiry report shows that on verification with the Mount Road Office, it was found that the said Thiru. Lakshmanan, appellant's representative did not attend the enquiry at Mount Road office and therefore, the enquiry officer had insisted the appellant to complete the cross-examination. On his refusal to do so, the enquiry officer, having regard to the conduct of the appellant, and the manner, in which, the enquiry was protracted for some reason or other, has closed the evidence on the side of the management and further directed the appellant to let in defence evidence on the next hearing date. On April 20, 1990, the appellant has insisted the Enquiry Officer to mark a letter, dated April 17, 1990 addressed to the Vice-President, Blue Star Limited and asserted: that he would not proceed with the enquiry unless the management gives a reply to the above said letter. On that ground, he has prayed for an adjournment. Since the enquiry officer was not aware of any such letter, he was; constrained to close the defence evidence. Though the learned Counsel, for the appellant contended that the enquiry officer was biased in not granting adjournment, even for a day and that he had graciously granted adjournment for production of M.Ws.2 and 4, the said contention is not very much appealing for the reason of protraction of the enquiry at the instance of the appellant on one ground or the other. Even the statement made by the appellant to the enquiry officer on April 16, 1990, that his representative was to attend any enquiry at Mount Road Officer was found to be not true. All long the petitioner had been attending the domestic enquiry from July 17, 1989 before the same enquiry officer, but suddenly, on April 17, 1990, he seemed to have made a wild and fanciful allegation against the enquiry officer that he had received certain gains of acceptance from the Management in the form of Office Furniture, without any payment and also certain other gains, such as display of paintings of his daughter.
50. On the allegations of bias, useful reference can be made to the decision of the Supreme Court in G.N. Nayak v. Goa University : AIR 2002 SC 790 : (2002) 2 SCC 712 where the Apex Court has explained the meaning of the word 'bias.' At Paragraph 33, the Apex Court held as follows:
33. Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially.
If however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of eduction, formal and informal, create attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices.
51. The Supreme Court in Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant, : AIR 2001 SC 24 : (2001) 1 SCC 182 : 2001-I-LLJ-583 has held that at p. 586
9. The word 'Bias' in popular English parlance stands included within the attributes and broader purview of the word 'malice', which in common acceptation mean and imply 'spite or 'ill-will' Stroud'S Judicial Dictionary (5th Ed.) Volume 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record so come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice.
52. As rightly pointed out by the learned Counsel for the respondent that in the absence of cogent evidence let in before the Tribunal to prove bias or mala fide, the observations of the Tribunal that rightly or wrongly the appellant had entertained doubt about the enquiry officer and unless his doubts are cleared, the closure of the enquiry was not proper, is unsustainable. The Tribunal ought to have come to a clear conclusion of the alleged bias, having regard the nature of allegations levelled against the enquiry officer, in the letter, dated April 17, 1990, bias or reasonable likelihood of bias has to be proved by letting in evidence and it cannot be concluded on mere surmises and conjunctures. In the light of the above, we do not find any manifest error committed by the Writ Court in remitting the matter to the Tribunal to let in evidence on the aspect of finding of the enquiry officer that the enquiry was ex parte.
53. The question as to what stage the management should seek the leave of the Labour Court/Tribunal to lead evidence, additional evidence, justifying its action is no longer res integra in view of the judgment of the Supreme Court in Karnataka State Road Transport Corporation v. Lakshmidevamma (supra). While resolving the conflict between the decision in Shambhu Nath Goyal v. Bank of Baroda : AIR 1984 SC 289: (1983) 4 SCC 491 : 1983-II-LLJ-415 and Rajendra Jha v. Presiding Officer, Labour Court : AIR 1984 SC 1696 : (1984) Supp SCC 520 : 1984-II-LLJ-459, the Five Judge Bench of the Supreme Court, after considering a catena of decisions, at Paragraph 45, held that,
Labour Courts/Tribunals have the power to call for any evidence at any stage of the; proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court/Tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.
54. In the case on hand, as stated supra, though the approval application in A. P. No. 61/1990 was filed before the Industrial Tribunal on April 30, 1991, the Management, subsequently has filed a Miscellaneous Application No. 54/1996 to lead evidence on the merits of the charges and on contest, the said application has been allowed as early as on September 30, 1996 before the closure of the proceedings. In the light of the Supreme Court judgment cited supra, the contention of the learned Counsel for the appellant to the contrary is untenable.
55. Learned single Judge having come to the conclusion that the documents relied on by the appellant did not establish that he was accepted as a protected workman under the statute and having found considerable force in the argument of the respondent-management that the findings recorded by the Industrial Tribunal that the appellant was a 'protected workmen' as erroneous, need not to have remitted the matter back to the Tribunal giving liberty to the parties to produce the documents to the allegations relating to the issue of protected workman. The said directions are not warranted, in view of our findings recorded earlier. In view of the above discussion, the contentions raised by the appellant are not sustainable both on law and on facts.
56. In the result, the Writ Appeal is dismissed. No costs.