Back
2002 Supreme(Cal) 364
High Court Of Calcutta
Pranab Kumar Chattopadhyay
ASHOK BIRI FACTORY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. O. 12304 Of 1991
Decided On : 06/11/2002
JAYANTI DHAR QUADER, Lalit Mohan Mahato, PINAKI CHANDRA MOTILAL, PRADIP GHOSH, RABIRANJAN DASGUPTA, RUPENDRA NATH MITRA, Tapan Dutta Gupta
The provisions of the Industrial Disputes Act, 1947 have no manner of application in the present case in view of the enactment of Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and The West Bengal Beedi and Cigar Workers (Conditions of Employment) Rules, 1968.
Headnote:
INDUSTRIAL DISPUTES - ORDER OF REFERENCE - MAINTAINABILITY - CONTRACTORS - WORKMEN - BEEDI AND CIGAR WORKERS (CONDITIONS OF EMPLOYMENT) ACT, 1966 - EFFECT ON INDUSTRIAL DISPUTES ACT, 1947 - JURISDICTION OF INDUSTRIAL TRIBUNAL - WRIT JURISDICTION OF HIGH COURT.
Fact of the Case:
The petitioners, engaged in the trade of manufacturing and sale of 'biri', claimed that they did not engage any employee/home worker/biri roller for manufacturing or rolling Biris at their Biri factory or industrial premises. They contended that they got supply of rolled unbranded Biris from their Biri suppliers or independent contractors. The respondent Nos. 6 to 12, who were among the Biri suppliers, claimed that they were workmen and not contractors and that the termination of their services was illegal. The Assistant Labour Commissioner entertained a representation submitted by the respondent No. 5 in connection with the alleged retrenchment of the 7 contractors, namely respondent Nos. 6 to 12. The petitioners contended that the provisions of the Industrial Disputes Act, 1947 could not be made applicable in the facts of the present case and that the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and The West Bengal Beedi and Cigar Workers (Conditions of Employment) Rules, 1968 were special statutes governing the affairs relating to employment in the 'biri' Industry. The Government of West Bengal referred the dispute to the Ninth Industrial Tribunal for adjudication. The petitioners challenged the validity of the order of reference.
Finding of the Court:
The High Court held that the question of maintainability of the order of reference on the ground of non-existence of an 'industrial Dispute' cannot be decided by the Industrial Tribunal as the said Tribunal itself is a creature of the statute and derives its jurisdiction to adjudicate the issue only on the basis of a valid order of reference. The Court further held that the respondent Nos. 6 to 12 were not admittedly engaged as contractors only and cannot be regarded as workmen under any circumstances. The Court also held that whether the respondent Nos. 6 to 12 were employees of the petitioner company or not should be decided by the appropriate Labour Court or tribunal in accordance with the prescribed procedure. The Court further held that the provisions of the Industrial Disputes Act, 1947 have no manner of application in the present case in view of the enactment of Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and The West Bengal Beedi and Cigar Workers (Conditions of Employment) Rules, 1968.
Issues: 1. Whether the order of reference made by the State Government under section 10 of the Industrial Disputes Act, 1947 was valid and maintainable? 2. Whether the respondent Nos. 6 to 12 were engaged as contractors only or they had been working as workmen and also as contractors of the petitioner No. 1? 3. Whether the provisions of the Industrial Disputes Act, 1947 should be made applicable in the facts of the present case?
Ratio Decidendi: 1. The High Court held that the question of maintainability of the order of reference on the ground of non-existence of an 'industrial Dispute' cannot be decided by the Industrial Tribunal as the said Tribunal itself is a creature of the statute and derives its jurisdiction to adjudicate the issue only on the basis of a valid order of reference. 2. The Court further held that the respondent Nos. 6 to 12 were not admittedly engaged as contractors only and cannot be regarded as workmen under any circumstances. The Court also held that whether the respondent Nos. 6 to 12 were employees of the petitioner company or not should be decided by the appropriate Labour Court or tribunal in accordance with the prescribed procedure. 3. The Court further held that the provisions of the Industrial Disputes Act, 1947 have no manner of application in the present case in view of the enactment of Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and The West Bengal Beedi and Cigar Workers (Conditions of Employment) Rules, 1968.
Final Decision: The High Court quashed the impugned order of reference dated 1st July, 1991 issued by the Assistant Secretary to the Government of West Bengal referring the disputes to the Ninth Industrial Tribunal, West Bengal for adjudication of the issues mentioned in the said order. The respondent Nos. 6 to 12 were, however, allowed to seek their remedy under the provisions of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and The West Bengal Beedi and Cigar Workers (Conditions of Employment) Rules, 1968 in future, if they are so advised.
( 1 ) THE order of reference made by the Government of West Bengal referring the dispute to the tribunal under section 10 of the Industrial Disputes Act has been challenged in the instant writ petition by the petitioners herein.
( 2 ) PETITIONERS are engaged in the trade of manufacturing and sale of 'biri' and have claimed that in their usual course of business, they do not engage any employee/home worker/biri roller for manufacturing or rolling Biris at their Biri factory or industrial premises.
( 3 ) IT has been contended on behalf of the petitioners that they get supply of rolled unbranded Biris from their Biri suppliers or independent contractors with whom the petitioners entered into agreements for getting supply of unbranded Biris. According to the petitioners, the said Biri suppliers or independent contractors have their own separate business and industrial premises wherein they manufacture Biris by employing their own labourers or workers. It has been specifically stated by the petitioners that the petitioners of employ labourers in their Biri factories only for the purpose of toasting, labelling and packing the 'biris' as supplied by the independent contractors apart from employing staff for administrative work, marketing purpose and accounting purpose.
( 4 ) PETITIONERS have stated that for the purpose of getting supply of 'kancha Biri' or 'unbranded Biri' on or about 2nd June 1986, the petitioners had entered into contract and/or agreement separately with each one of the respondent Nos. 6 to 12 and also with about 35 other Biri suppliers. It has also been submitted on behalf of the petitioners that in the year 1986 petitioners herein entered into contract with about 40 kancha Biri' suppliers or independent contractors including the respondent Nos. 6 to 12 for the purpose of getting supply of 'unbranded' or 'kancha Biri' at its Jhalda Biri Factory.
( 5 ) IT has been stated by the petitioners that the said 'kancha Biri' suppliers or independent contractors supplied regularly 'kancha Biri' or 'unbranded Biri' of the petitioners at their 'biri' factory at Jhalda and after receiving supply of the said 'kancha Biri', petitioners toasted, labelled/branded the same with the help of the employees/workers engaged directly by the petitioners and also through labour contractors who were working at the industrial premises of the petitioner at Jhalda and thereafter made the said 'biris' marketable to fit in the brand names of the petitioners.
( 6 ) PETITIONERS have also claimed that they had entered into separate agreement or contract with each one of the respondent Nos. 6 to 12 for getting supply of Kancha Biri' or 'unbranded Biri' for a period of one year commencing from 2nd June 1986 to 31st May 1987. According to the petitioners, the respondent Nos. 6 to 12 with the help of some local people started putting pressure on the Manager and other managerial staff of the petitioners at Jhalda Biri Factory from the month of October 1986 demanding more orders for the supply of 'kancha Biri' over and above their existing quota. The said respondents with the help of other antisocial elements numbering about 100 attacked the factory premises of the petitioners at Jhalda, which prompted the said petitioners to cancel and/or rescind the existing agreements between the petitioners and the respondent Nos. 6 to 12 for getting supply of 'kancha Biri' pre-maturely on or about November 1986.
( 7 ) THE Assistant Labour Commissioner, Purulia as the Conciliation Officer entertained a representation submitted by the respondent No. 5, herein, in connection with the alleged retrenchment of the 7 contractors, namely respondent Nos. 6 to 12, herein, but the petitioners all along took a firm stand that no industrial dispute could arise out of the cancellation of the agreements between the petitioners and the respondent Nos. 6 to 12 herein who according to the said petitioners were solely contractors and not workmen.
( 8 )
