the workman went on two months leave to banaras for a change some time in 1960.
the definite case of the respondent number1 has been that it was by way of retaliatory measure that his services were terminated.
on august 3 1956 the workman entered into an agreement of service with the companypany wherein the first clause reads as follows the employer agrees to and does hereby engage the services of the employee for a period of 5 years beginning with 1 6 56 and thereafter until this agreement shall be determined by either party hereto giving to the other 3 months numberice in writing of such intended termination.
the judgment of the companyrt was delivered by goswami j. this is an appeal at the instance of the workman on certificate of the calcutta high companyrt from the decision of the division bench reversing the earlier judgment and order of the learned single judge in an application under article 226 of the companystitution directed against the award of the first industrial tribunal west bengal made under section 33a of the industrial disputes act.
after a little over two months of the publication of the award to be precise on february 4 1963 the companypany intimated to the workman to rejoin his service.
appeal from the judgment and order dated the 2nd june 1965 of the calcutta high companyrt in appeal from original order number 287 of 1964.
provided that in case employer finds the employees work satisfactory employer shall have the option to extend the period of service by a further term of 3 years.
this time the companypany did number accept the award although on the earlier occasion the company did number choose to litigate and reinstated him as ordered by the tribunal.
since the companypany did number ask for approval of its order from the industrial tribunal the workman made a companyplaint to the tribunal under section 33a of the industrial disputes act briefly the act .
since an industrial dispute was pending even on this date of termination of his service and the companypany did number apply to the tribunal for approval of the order the workman made a companyplaint to the tribunal as on the previous occasion under section 33a of the act.
the tribunal made its award on september 27 1962 ordering reinstatement of the workman with 50 of his back wages for the period of his forced unemployment as companypensation.
this is the second round of litigation with which we are companycerned in this appeal.
the companypany moved the calcutta high companyrt under article 226 of the companystitution to quash the award.
on september 5 1960 he sent anumberher telegram followed by a formal application enclosing a medical certificate for extension of his leave.
at the time of this termination there was an industrial dispute pending between the companypany and its workmen.
the workman reported for duty the following day on february 5 1963.
the division bench held as follows it may be that having regard to the sequence of events that took place in this case the termination of service of the respondent number 1 by the letter of 16th february 1963 may be regarded as a companyourable exercise of the power under the companytract of employment or may even be regarded as one of unfair labour practice or mala fide but the discharge cannumber be said to be for any misconduct.
as the workman was lying ill at banaras he companyld number companyply with the directions of the companypany.
he actually sent an application on august 8 1960 along with a medical certificate praying for extension of his leave.
on september 15 1960 the companypany sent a letter to him terminating his services on the ground of habitual absence which is a misconduct under the companypanys standing orders.
the companypany companytested the application.
on february 16 1963 the companypany invoked clause 1 of the agreement which we have set out earlier and terminated the services of the workman by paying three months salary in lieu of numberice.
civil appellate jurisdiction civil appeal number 2574 of 1972.
the companypany appealed to the division bench of the high court and the appeal was accepted.
he requested for extension of leave for one month on medical grounds.
the companypany asked the workman to get himself examined by the companypanys medical officer within ten days.
naunit lal and miss lalita kohli for the appellant.
there is numberevidence for discharge on any specific misconduct.
this may be true and may show that the action on the part of the appellant companypany was mala fide.
the tribunal directed that the award should be given effect to number later than one month of the publication of the award which was on october 26 1962.
the appellant hereinafter to be described as the workman was employed by m s hindustan motors limited hereinafter to be described as the companypany since august 3 1949.
the tribunal accepted the companyplaint and held as follows in my opinion the companypany has really dismissed the petitioner for a piece of companyduct which must have appeared as misconduct in the eye of the companypany.
sen m. mookherjee sardar bahadur saharya and vishnu bahadur saharya for respondent number 1.
