KALYANMOY GANGULI, J.

( 1 ) THE petitioner, in the instant application under Article 226 of the Constitution of India, pray for a writ, inter alia, in the nature of certiorari requiring respondent 1 "to transmit and certify to this Hon'ble Court the record of the proceedings it had before it under Reference No. 2391 - I. R. I R/131-17/86, dated 29 October 1986, and its order made thereon being Order No. 10, dated 13 November 1987, to be in this Court dealt with in order that your petitioner may have the more sure and speedy justice and that the same may be set aside or quashed" and for a writ in the nature of mandamus commanding the respondents and each of them to forbear from enforcing or taking any step to enforce or giving any effect to the said pretended order.

( 2 ) ALTHOUGH the petitioners have prayed for quashing not only the Order No. 10, dated 13 November 1987, but also the order of reference, dated 29 October 1986, yet no argument was advanced on the question of the order of reference being bad in law. The entire argument was directed against the Order No. 10, dated 13 November 1987, allowing the application of respondent 2 workman under Section 15 (2) (b) of the Industrial Disputes Act, 1947, hereinafter referred to as the 1947 Act.

( 3 ) THE pleadings were lengthy and the arguments lengthier but the point is rather short.

( 4 ) RESPONDENT 2 at all material times, was a workman employed by the petitioner as an electrician in its Calcutta office. A show-cause notice was issued to respondent 2, a disciplinary proceedings ensued and the proceedings culminated in an order of dismissal of respondent 2 by the petitioner, dated 11 February 1985, which is annexed to the petition and marked with the letter "b"

( 5 ) CONCILIATION proceedings were initiated and the same having failed an industrial dispute was referred by the appropriate authority, to the Second Industrial Tribunal, West Bengal, under Order of Reference No. 2391/i. R. /ki/131-17/86, 29 dated October 1986. The issue was as follows: "whether the termination of service of Sri Akhil Kr. Tarafdar is justified? What relief, if any, is he entitled to ?" Although it has been stated in Para 6 of the petition that the order of reference has been annexed to the petition marked with the letter 'd' yet I tried in vain to find the said annexure which is sadly missing in the petition.

( 6 ) THE parties to the proceedings, namely, the petitioner and respondent 2, filed their respective written statements before the learned Tribunal.

( 7 ) SUBSEQUENTLY, on or about 25 May 1987, respondent 2 workman made an application before respondent 1 claiming interim relief under the provisions of Section 15 (2) (b) of the 1947 Act as inserted by Section 7 of the Industrial Disputes (West Bengal Second Amendment) Act, 1980, hereinafter referred to as the West Bengal Act. The writ-petitioner filed an objection to the application of respondent 2 mainly on two points, viz. : (i) that respondent 2 was not entitled to get any interim relief inasmuch as he was gainfully employed as an electrician in Eagle Lithography Company (Pvt.) Ltd. at 26-B, Chistopher Road, Calcutta, and in addition thereto carried on the business of running a workshop at his residence in partnership with his brother; (ii) that in law also respondent 2 was not entitled to take the protection of Section 15 (2) (b) of the 1947 Act as the said section had been rendered inoperative by Parliament with effect from 21 August 1984 by Section 10 of the Industrial Disputes (Amendment) Act, 1982, which received the assent of the President on 31 August 1982 but was brought into force by notification on 21 August 1984.

( 8 ) SO far as the question of the factum of respondent 2 being gainfully employed elsewhere is concerned, the learned Tribunal, on an appreciation, of the evidence came to the finding that the writ-petitioner had failed to discharge its burden to prove that respondent 2 was so gainfully employed. The contention of

Click Here to Read the rest of this document