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Rao (U.S.R.), Shore Officer, New India Fisheries Ltd. Vs. Vljaya Kumar (N.) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1970)ILLJ285Ker
AppellantRao (U.S.R.), Shore Officer, New India Fisheries Ltd.
RespondentVljaya Kumar (N.) and ors.
Cases ReferredLtd. v. K. T. Morris
Excerpt:
- - 102 of 1964. it is well-settled that it is the duty of the worker who alleges that he is concerned in a dispute to prove it......passed by the it due trial tribunal, calicut, allowing a complaint filed under section 33a of the industrial disputes act, 1947, by the issue of an appropriate writ or order.2. respondent 1 was employed as an accountant under the management in question from the year 1963 on wards. his services were terminated with effect from 30 september 1964, on the ground that he committed irregularities in keeping the accounts, which it wan his duty to keep properly. respondent 1, it is said, was concerned in the industrial dispute in industrial dispute no. 102 of 1964 pending before the industrial tribunal, callout. the termination of the services of respondent 1 by the management was daring the pendency of the dispute and the permission of the tribunal was not sought for the action of the.....
Judgment:

K.K. Mathew, J.

1. This is an application to quash Ex. P. 6 order passed by the it due trial tribunal, Calicut, allowing a complaint filed under Section 33A of the Industrial Disputes Act, 1947, by the issue of an appropriate writ or order.

2. Respondent 1 was employed as an accountant under the management in question from the year 1963 on wards. His services were terminated with effect from 30 September 1964, on the ground that he committed irregularities in keeping the accounts, which it wan his duty to keep properly. Respondent 1, it is said, was concerned in the industrial dispute in Industrial Dispute No. 102 of 1964 pending before the industrial tribunal, Callout. The termination of the services of respondent 1 by the management was daring the pendency of the dispute and the permission of the tribunal was not sought for the action of the management nor was respondent 1 paid one month's wages as provided in Section 33(2)(b) of the Industrial Disputes Act. There was, therefore, a contravention of Section 33. Alleging that the action taken by the management was illegal, respondent 1 filed an application under Section 33A for taking appropriate action. The tribunal found that respondent 1 was concerned in the industrial dispute that was pending and that previous approval of the tribunal should have been obtained by the management for dismissing him from service. It however passed an award upholding the order of dismissal, but declaring that respondent 1 is entitled to his full salary from the date of the dismissal to the date of Ex. P. 6 order.

3. The petitioner questions the validity of Ex. P. 6 order mainly on the ground that respondent 1 was not concerned in the industrial dispute in Industrial Dispute No. 102 of 1964, and therefore, the management was not bound to seek the previous approval of the tribunal under Section 33(2)(b) of the Act. The tribunal found that the dispute in Industrial Dispute No. 102 of 1984 was in relation to the payment of bonus also and that respondent 1 was cornered in that dispute. Exhibit M. 3 before the tribunal is the order of reference in Industrial Dispute No. 102 of 1964. The dispute in that case was between the Shore Officer, New India Fisheries, Ltd., the management, on the one hand, and the workers concerned, represented by two labour unions, on the other. Altogether thirteen issues were referred for adjudication. The tribunal found that respondent 1 was concerned at least in the decision of issue (11) which dealt with the question of bonus payable to the workers for the year 1963. Although M.W. 2, the Shore Officer, stated that the bonus paid to the staff and the workers was on different considerations and that respondent 1 being a member of the staff, was not concerned in the decision of the issue, the tribunal did not accept that but held that respondent 1 was concerned in the dispute and that the previous approval of the tribunal should have been obtained before dismissing respondent 1.

4. Sri V.U. Joseph, appearing for the management, submitted that no evidence was given by respondent 1 to the effect that he was concerned in the dispute in Industrial Dispute No. 102 of 1964. Counsel referred to the evidence of respondent 1, and said that respondent 1 has not stated anything in his evidence to show that he was concerned in the dispute. In the complaint petition filed by him before the tribunal he has no doubt stated that an industrial dispute was pending at the time he was dismissed, and that he was concerned in the dispute. Beyond that, he has not specified the nature of the dispute or how he was concerned in it. In the written statement filed by the management, it was specifically averred that the claim of respondent 1 for bonus for the year 1963 has been settled and that that settlement has been accepted by respondent l, and therefore, he was not concerned in the decision of issue (11) in Industrial Dispute No. 102 of 1964. It is well-settled that it is the duty of the worker who alleges that he is concerned in a dispute to prove it. In Digwadih Colliery v. Ramji Singh 1964-II L.L J. 143 at 144, it was held by Gajandragadkar, J., as he then was, that the burden of proving that a workman is concerned in an industrial dispute is upon him. In New India Motors (Private), Ltd. v. K. T. Morris 1960-I L.L.J. 651, it was held that it is necessary to ascertain the nature of the dispute before it can be said that a workman is concerned in the dispute. The Court has also said that the words ' workman concerned in the dispute ' in Section 33 most receive a liberal interpretation and that the real test is whether the award in the case would bind him. If this teat is accepted, the question is whether the award passed in Industrial Dispute No. 102 of 1964 would be binding on respondent 1. The management, in its written statement, said that the claim of respondent 1 for bonus payable for the year 1963 has been settled. Although the management has made that specifies averment its the written statement, there is no evidence one way or the other whether the claim for bonus of respondent 1 for the year 1963 has been settled If, as a matter of fact, the claim has been settled, I do not think that respondent 1 was concerned in the dispute, in Industrial Dispute No. 102 of 1964. I would therefore direct the tribunal to enter a specifics finding on the question whether the claim for bonus of respondent 1 for the year 1963 has been fully settled between the parties. In the light of the finding on this question, the tribunal will pass the proper order.

5. I quash Ex. P. 6 order only to the extent indicated and direct the tribunal to enter a finding on the question and pass the proper order in the light of the finding. The writ petition is disposed of as above. No costs.


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