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2009 DIGILAW 104 (MAD)

PARTHASARATHY N. v. BLUE STAR LIMITED

2009-01-09

K.RAVIRAJA PANDIAN, S.MANIKUMAR

body2009
JUDGMENT Per K. RAVIRAJA PANDIAN & S. MANIKUMAR, JJ. 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." 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. 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. 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. 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 above said 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. 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 in spite 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 further contended that in spite 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 above said 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 have been treated as a positive action on the part of the Management and therefore, the appellant continued to be a "protected workman." 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. Assailing the order, Mr. 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. 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 up to 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. 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. 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. 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. 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. 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. 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. 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 of the factual 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. 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. 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 Rule 65 of the Tamil Nadu Industrial Tribunal Rules, is in pari materia with the Industrial Disputes (Bombay) Rules, 1957. 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. 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. 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. 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, 1990 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. 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. 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." 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. 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. Corpn. Emp. Union v. T.N.C.S. Corpn. 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. Corpn. Emp. Union v. T.N.C.S. Corpn. 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. 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 decidendi 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 interest of justice, is squarely applicable to the facts of this case. He further submitted that the ratio decidendi 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 interest of justice, is squarely applicable to the facts of this case. 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, me 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, me 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. Hence, he prayed that the order impugned be sustained. Heard the learned counsel for the parties and perused the materials available on record. 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 paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of 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 workmen 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." 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." An application under Section 33(2)(b) of the Industrial Disputes Act is for grant of approval for dismissal already effected, whereas, an application under 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. 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. 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. JUDGMENT Per K. RAVIRAJA PANDIAN & S. MANIKUMAR, JJ. 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." 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. 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. 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. 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 above said 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. For the above said 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. 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 in spite 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 above said 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 have been treated as a positive action on the part of the Management and therefore, the appellant continued to be a "protected workman." 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. 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 up to 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. 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. 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. 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. 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. 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. 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. 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 of the factual 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. 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. 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 Rule 65 of the Tamil Nadu Industrial Tribunal Rules, is in pari materia with the Industrial Disputes (Bombay) Rules, 1957. 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. 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. 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. 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, 1990 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. 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. 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." 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. 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. Corpn. Emp. Union v. T.N.C.S. Corpn. 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. Corpn. Emp. Union v. T.N.C.S. Corpn. 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. 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 decidendi 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 interest of justice, is squarely applicable to the facts of this case. He further submitted that the ratio decidendi 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 interest of justice, is squarely applicable to the facts of this case. 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, me 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, me 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. Hence, he prayed that the order impugned be sustained. Heard the learned counsel for the parties and perused the materials available on record. 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 paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of 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 workmen 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." 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." An application under Section 33(2)(b) of the Industrial Disputes Act is for grant of approval for dismissal already effected, whereas, an application under 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. 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.