JUDGMENT

S.B. SINHA, J.

Leave granted

Appellants were workmen of the Respondent company. They were transferred to Siwan (Bihar), Farrukhabad (U.P.) and Karimganj (Assam) by letters of transfer dated 3.10.1994. According to them, the said orders of transfer were violative of the Memorandum of Undertaking dated 18.12.1989 and were issued with an ill-motive of victimizing them for their trade union activities. As despite requests, the purported orders of transfer were not revoked, they sought intervention of the Labour Commissioner, West Bengal by a letter dated 1.3.1995. Allegedly, a conciliation proceeding was initiated, but during the pendency thereof, their services were terminated by Respondent Company by letters dated 15.4.1995. Contending that the said orders of termination were unauthorized, arbitrary and illegal, as no domestic enquiry was held prior thereto, they raised an industrial dispute.

The State of West Bengal, in exercise of its jurisdiction under Section 10(1)(c) read with Section 2A of the Industrial Disputes Act, 1947 referred the following dispute for its adjudication to the Third Industrial Tribunal, West Bengal.

"Whether the termination of service of (1) Shri Bikash Bhusan Ghosh (2) Shri Pradip Kumar Mukherjee and (3)

Shri Shyama Charan Mallick is justified? What relief, if any, are they entitled to?"

Before the said Tribunal, inter-alia a contention was raised that the State of West Bengal had no jurisdiction to make the reference. Parties to the reference, however, adduced their respective evidences on merit of the matter.

The question in regard to maintainability of the said reference was determined by the Tribunal in terms of an order dated 30.3.1999 holding the same to be maintainable.

By reason of an Award dated 10.10.2002, the Tribunal opined that the orders of termination passed against the appellants were illegal and they were directed to be re-instated in service with back wages. Aggrieved by and dissatisfied with the said order, Respondent filed a Writ Petition before the Calcutta High Court which was marked as W.P. No. 2495 of 2002. By a Judgment and Order dated 11.7.2003, the said Writ Petition was dismissed.

On an intra-court appeal filed by the Respondents under clause 15 of the Letters Patent of the Calcutta High Court, marked as G.A. No. 3157; a Division Bench of the High Court, however, without going into the merit of the matter held that the State of West Bengal, being not the appropriate Government in respect of the dispute raised by the appellants, had no jurisdiction to make the reference and on that premise allowed the said appeal and consequently set aside the Award made by the Tribunal as also the judgment and order of the learned Single Judge.

Mr. Pradip Ghosh, learned senior counsel appearing on behalf of the appellant, in support of this appeal, inter-alia would submit that the Division Bench of the High Court committed a manifest error in passing the impugned judgment in so far as it proceeded on the basis that no document was brought on records to show that the appellants had raised a dispute in regard to the orders of transfer passed against them which in fact had been done and the same was pending before the conciliation officer. Our attention in this connection has been drawn to a letter dated 23.3.1995 issued by Joint Labour Commissioner, West Bengal to the Personnel Manager of M/s. Sandoz (I) Ltd., pre-decessor of the respondent Company which is in the following terms;

"With reference to the above subject, you are requested to kindly make it convenient to see the undersigned in this office on 12.04.1995 at 3.00 p.m. for a discussion with the concerned representatives."

The learned counsel would contend that in the said conciliation proceeding, the respondents did not participate, which was initiated on the basis of a letter dated 1.3.1995 addressed to the Labour Commissioner, Government of West Bengal by the appellants. It was furthermore submitted th