C.W.P. No.4453 of 2000 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4453 of 2000 (O&M) Date of Decision: 07.10.2009 Punjab Ex-Servicemen Corporation .....Petitioner Versus Presiding Officer, Industrial Tribunal, Punjab and another ...Respondents Present: Mr. P.K. Mutneja, Advocate with Mr. S.S. Sudan, Advocate for the petitioner. Mr. Ravi Kant Sharma, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. This writ petition arises out of a complaint filed by the workman under Section 33-A on the ground that he had been terminated from service during the pendency of a dispute, which is pending through the Union before the Industrial Tribunal in a reference made by the Government in reference No.74 of 1997. The contention of the workman had been that he had been appointed as a Helper on contract basis for one year in Automobile Workshop on 01.06.1994. The contract had been extended from time to time upto 02.07.1999. On a complaint that the workman had been guilty of stealing an audio cassette on 22.07.1999, which alleged to have been recovered by a security guard. The workman's services had been terminated after submission of alleged fact finding report submitted on C.W.P. No.4453 of 2000 (O&M) -2- 24.07.1998. Admittedly no enquiry had been held or a charge-sheet filed on the workman. It was, under the circumstances, that the workman had filed a complaint on 07.12.1998 when admittedly proceedings were pending before the Industrial Tribunal through the Union for determination of the dispute relating to several demands that the workman had raised including the demand for framing a scheme for regularization. The Labour Court found that in the absence of any enquiry or compliance with the provisions of Section 25-F, the termination could not be justified. An attempt was, therefore, made by the management to prove the misconduct by examining the security guard at the workshop and even that was found by the Industrial Tribunal to be inadequate when it elicited serious contradiction in his evidence with the evidence of the General Manager, Capt. Lachhman Dass. Even the place from where the workman was said to have committed the theft had differed. The finding of the Industrial Tribunal as regards the inadequacy of evidence and the improbability of the versions of the management that the misconduct had not been established was perfectly justified and I see no reason to interfere with the same. 2. Even without examining the contention regarding the proof of misconduct, the workman is bound to succeed on the only proof that the termination had been made admittedly at a time when a reference was pending before the Industrial Tribunal. Although the misconduct attributed to the workman was not connected with the dispute which was pending still the law required under Section 33(2) (b) of the Industrial Disputes Act that approval is bound to have been C.W.P. No.4453 of 2000 (O&M) -3- secured from the Industrial Tribunal to legitimize its decision to terminate the service. Even apart from the finding of the Industrial Tribunal under Section 33-A that a misconduct had not been established, the workman is entitled to reinstatement by the fact that there is a violation of Section 33(2)(b) of the Industrial Disputes Act. The Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Bank Ltd. Vs. Ram Gopal Sharma 2002 (1) SCT 966; 2002 AIR (SC) 643 has laid down that the contravention of provisions under Section 33 would make the termination illegal and void. It is contended by the learned counsel that the unit where the workman had been working has remained closed from 02.08.1999. Learned counsel refers to the proceedings of the Government of Punjab granting approval to the closure of the auto workshop dated 19.06.1999. The notice of the closure of the workshop has already been put up and the correctness of the fact of closure cannot be disputed. The workshop shall be treated as having continued in service till closure and instead of reinstatement with back wages as awarded by the Industrial Tribunal, the workman shall be entitled to be paid his wages upto the date of the closure and shall also be entitled to compensation as payable under Section 25(o) of the Industrial Disputes Act. The calculation shall be made by PESCO and paid to the workman along with interest @9% per annum from the date of closure till the date of payment. 3. The finding of the Labour Court regarding the illegality of the termination is upheld but in view of the changed circumstances relating to the closure of the unit where the workman was working, he C.W.P. No.4453 of 2000 (O&M) -4- shall be entitled to back wages and closure compensation in the manner referred to above. 4. The writ petition is disposed of in the above terms. (K. KANNAN) JUDGE October 07, 2009 Pankaj*