IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 18-09-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.35382 of 2007 The Management of Cambodia Mills A Unit of NTC (TN &P) Ltd., Coimbatore 641 016, rep. by its General Manager .. Petitioner. Versus 1.The Presiding Officer, Special Industrial Tribunal, Chennai-600 006. 2.R.Palanisamy .. Respondent. Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records of the first respondent in Approval Petition No.21 of 2003 in I.D.No.1/02 and 3/03, dated 17.09.2007, and quash the same. For Petitioner : Mr.S.Ravindran For Respondents : No Appearance O R D E R Heard the learned counsel appearing for the petitioner. 2. This writ petition has been filed by the petitioner Mills praying that this Court may be pleased to call for the records of the first respondent in Approval Petition No.21 of 2003, in I.D.Nos.1 of 2002 and 3 of 2003, dated 17.9.2007 and quash the same and to pass such further orders as this Court may deem fit and proper in the facts and circumstances of the case. 3. It has been stated that the second respondent had joined the service of the petitioner Mills in the year, 1981. In the month of August, 2000, the second respondent had committed theft of a Leather Apron. For the said misconduct, he was issued with the charge memo, dated 10.8.2000. A domestic enquiry had been held into the charges and the petitioner had been found guilty. Therefore, the petitioner was issued with an order of demotion from the post of Cone Packer to that of a Badli and he was advised to report for work in his regular shift. Subsequently, since the second respondent continued to remain absent, without applying for leave, a show cause notice, dated 12.6.2001, had been issued to him and a domestic enquiry was held to prove the charges, levelled against the petitioner. Based on the domestic enquiry, the petitioner was found guilty of the charges levelled against him. In spite of the dismissal of the second respondent from service, a lesser punishment had been awarded to him, demoting him to the post of apprentice from that of a Badli. Even after the demotion, the second respondent continued to remain absent, from 13.6.2001 to 20.12.2001. For the said misconduct, a show cause notice, dated 20.12.2001, had been issued to the petitioner. A domestic enquiry had been held in which the petitioner was found guilty of the charge. On 19.9.2002, a second show cause notice had been issued to the second respondent proposing the punishment of dismissal from service. Since the explanation submitted by the petitioner was not satisfactory, he was dismissed from service, by an order, dated 4.4.2003. Since the industrial Dispute, in I.D.No.43 of 2001, later, re-numbered as I.D.No.1 of 2002 and I.D.No.3 of 2003, was pending before the Industrial Tribunal, the petitioner had filed an approval petition in Approval petition No.21 of 2003, before the first respondent Tribunal. The petitioner's documents had been marked as M1 to M13 and the documents of the second respondent were marked as R1 to R23. By an order, dated 17.9.2007, the first respondent Tribunal had held that since W.P.No.2353 of 2001 and W.P.No.14708 of 2002, challenging the order of demotion, had been filed by the second respondent, and as they were pending before this Court, it was not proper on the part of the petitioner to pass a dismissal order against the second respondent. Based on the said reason, the first respondent Tribunal had passed an order, dismissing the Approval Petition. 4. No counter affidavit has been filed on behalf of the second respondent. There is no appearance by the second respondent, either in person or through a counsel. 5. The learned counsel for the petitioner had submitted that the impugned order of the first respondent, dated 17.9.2007, dismissing the Approval Petition, filed by the petitioner, is erroneous and unsustainable. The first respondent Tribunal had erred in dismissing the Approval Petition only for the reason that certain writ petitions were pending before this Court, under Section 33(2) (b) of the Industrial Disputes Act, 1947. The first respondent Tribunal had only to find out as to whether a prima facie case had been made out and whether an enquiry had been conducted, in accordance with the provisions of the Standing Orders and whether the second respondent had been victimised. When all the above ingredients were found to be in favour of the petitioner, the first respondent Tribunal ought to have granted the Approval. The reasoning of the first respondent that the petitioner should await the final out come of the writ petitions in W.P.No.2353 of 2001 and W.P.No.14078 of 2002, before inflicting the punishment of dismissal against the second respondent, is arbitrary and erroneous. Since the second respondent was unauthorisedly absent, continuously, for a long period of time, the Approval Petition ought to have been ordered by the first respondent Tribunal. As the Tribunal had found the enquiry to be proper and valid , there is no reason for the first respondent Tribunal to dismiss the approval petition. The learned counsel for the petitioner had also submitted that the first respondent Tribunal had erred in holding that the second respondent had been dismissed from service. 6. In view of the submissions made by the learned counsel for the petitioner and on a perusal of the impugned order of the first respondent Tribunal, dated 17.9.2007, made in the Approval Petition No.21 of 2003, in I.D.No.1 of 2002 and I.D.No.3 of 2003, it is clear that the Tribunal had dismissed the Approval Petition, mainly for the reason that the writ petitions filed by the second respondent workman, in W.P.No.2353 of 2001 and W.P.No.14078 of 2002, were pending on the file of this Court. Since the said writ petitions have already been disposed of by this Court, by its order, dated 18.9.2008, holding that the demotion of the second respondent from the post of Cone Packer to that of Badli, by an order, dated 18.12.2000 and the further demotion from Badli to an Apprentice, by an order, dated 2.11.2001, issued by the petitioner Mills are arbitrary and illegal, the impugned order of the Tribunal, dated 17.9.2007, is set aside and the matter is remitted back to the first respondent Tribunal to decide the issue as to whether the approval should be granted by it, under Section 33(2)(b) of the Industrial Disputes Act, 1947. The Tribunal shall take note of the orders, dated 18.9.2008, passed by this Court in W.P.No.2353 of 2001 and W.P.No.14708 of 2002, while deciding the issues before it. Accordingly, the writ petition is allowed, with the above directions. No costs. csh To 1.The Presiding Officer, Special Industrial Tribunal, Chennai 600 006