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2008 Supreme(Cal) 469
IN THE HIGH COURT OF CALCUTTA
MR. JUSTICE DEBASISH KAR GUPTA
Eastern Coalfield Ltd.
Versus
Niranjan Chatterjee and Others
W.P. No. 16980 (W)/1995
Decided on : May 2, 2008
For Petitioner: R.N. Majumder, Susanta Pal, P. Basu
For Respondent: Kalyan Bandopadhyay, Swapan Banerjee
The workmen can espouse the cause of a retired employee in an industrial dispute if the dispute concerns a matter that is bound to affect the substantial interest of the workmen.
Headnote:
INDUSTRIAL DISPUTE - WORKMAN - RETIRED EMPLOYEE - INDUSTRIAL DISPUTE ACT, 1947 - SECTION 2(k), 2(s), 17(2) - N.C.W.A. IV - CLAUSE 9.4.3. - Whether the terms of reference was maintainable before the learned Tribunal since the respondent No. 1 was not in service at the point of time. Whether the workmen can espouse the cause of person, who at one point of time had been workman and only ceased to be so on retirement.
Fact of the Case:
A retired employee, Shri Niranjan Chatterjee, applied for compassionate appointment for his son under the petitioner company in accordance with the provisions of Clause (9.4.3.) of N.C.W.A. IV due to premature termination of his services. The petitioner company did not appoint the son, leading to a dispute referred to the Central Government Industrial Tribunal-cum-Labour Court, Asansol. The Tribunal directed the petitioner company to provide employment to the son. The petitioner company challenged the order of reference and the award in the High Court.
Finding of the Court:
The High Court held that the terms of reference were maintainable before the Tribunal as the dispute was raised by the trade union of the workers of the petitioner company, who could espouse the cause of a retired employee having a direct bearing on the substantial interest of the workmen.
Issues: 1. Whether a retired employee can raise an industrial dispute under the Industrial Disputes Act, 1947? 2. Whether the workmen can espouse the cause of a retired employee in an industrial dispute?
Ratio Decidendi: 1. A retired employee cannot raise an industrial dispute under the Industrial Disputes Act, 1947, as per the definition of 'workman' under Section 2(s) of the Act. 2. However, the workmen can espouse the cause of a retired employee in an industrial dispute if the dispute concerns a matter that is bound to affect the substantial interest of the workmen.
Final Decision: The High Court dismissed the writ petition filed by the petitioner company, upholding the order of reference and the award passed by the Tribunal.
The subject matters of challenge in this writ application are the order dated December 24, 1990 passed by the respondent No. 3 referring a dispute for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Asansol and the award dated December 21, 2004 passed in reference No. 5/1999 by the Central Government Industrial Tribunal-cum-Labour Court, Asansol.
2. The petitioner is a Government Company within the meaning of Companies Act, 1956. By reason of enactment of Coal Mines (Nationalization) Act, 1973, the right, title and interest of the petitioner company, being a Colliery, vested in the Central] Government~ According to the petitioner company the respondent No.1 was a permanent employee under the petitioner company and he was posted at Kumardihi "A" Colliery in the capacity of clerk. The date of retirement of the respondent No. 1 from the services of the petitioner company on attaining the age of retirement on superannuation was April 8, 2002. An application was filed by the petitioner for assessment of his physical fitness under the provision of N.C.W.A. IV (V). On the basis of such assessment the above services of the petitioner was terminated on and from March 8, 1994.
3. A son of the respondent No.1, namely Shri Jayanta Kumar Chatterjee applied for compassionate appointment under the petitioner company in accordance with the provisions of Clause (9.4.3.) of N.C.W.A. IV.3 for premature termination of the services of his father.
4. Since the above son of the respondent No. 1 was not appointed by the petitioner company, the respondent No.2 agitated the4 grievance to the Government of India, Ministry of Labour and the dispute was referred to the Central Government Industrial Tribunal-cum-Lower Court, Asansol, the terms of reference being as follows: .
"Whether the action of the Management of ECL, in not providing employment to the dependent of Shri Niranjan Chatterjee, Clerk of Kumardihi "A" Colliery is legal and justified? If not, to what relief the workman is entitled?"
5. The petitioner company filed their written statement-cum-rejoinder before the respondent No.3. The respondent No.1 being represented by the respondent No. 2 filed his written statement in the above reference case. Finally the respondent No. 3 passed the impugned award dated December 21, 2004 in the reference No. 5/1999 directing the petitioner company to give employment to the dependent son of the respondent No. 1 in a suitable post within the period of three months. Hence this writ application is filed by the petitioner company challenging the order of reference dated December 24, 1998 as also the above award dated December 21,2004 passed in reference No. 5/1999 by the respondent No. 3.
6. Appearing on behalf of the petitioner company Mr. Rabin Majumder, learned advocate submitted that the respondent No. 1 was not a workman on the date of reference i. e. on December 24, 1998. Therefore, there cannot be any industrial dispute in between the petitioner company and the respondent No.1, who was represented by the respondent No.2, in view of the provisions of sub-section (k) of Section 2 of the Industrial Disputes Act, 1947 and on the basis of the settled principles of law as decided in the matter of Standard Chartered Grindlays Bank Retired Employees Association v, Union of India 2007 Lab IC 1134.
7. The next submission of Mr. Majumder was that assuming that the point of maintainability had not been raised before the respondent No.3, the jurisdiction of the Learned Tribunal could be examined by the High Court in its writ jurisdiction at that stage in view of the settled principles of law laid down in the matter of National Engineering Industrial Ltd. v. State of Rajasthan AIR 2000 SC 469: (2000) 1 SCC 371 : 2000-I-LLJ-260 : (1999) Suppl MLJ 138.
8. Mr. Majumder submitted that the impugned award dated December 21, 2004 passed in Reference No. 1989 could not be sustained in law in view of the fact that there was no suitable vacancy to
