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High Court Of Calcutta
D. P. KUNDU
NOVATTIS INDIA LTD - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 2425 Of 2002
Decided On : 07/11/2003
INDUSTRIAL DISPUTES ACT, 1947 - Section 10 read with Section 2(a) - Appropriate Government - Determination - Factors to be considered - Situs of employment - Nexus between dispute and territory of State - Jurisdiction - Maintainability of reference - Individual disputes - Clubbing in single order of reference - Irregularity - Maintainability - Domestic enquiry - Necessity - Evidence - Admissibility - Stage of proceedings - Principles.
Fact of the Case:
The dispute arose out of the termination of services of three workmen by the company on the ground that they did not carry out the orders of transfer. The State Government referred the industrial dispute to the Tribunal under Section 10 read with Section 2(a) of the Industrial Disputes Act, 1947. The company challenged the maintainability of the reference, arguing that the State Government was not the appropriate Government and that the Tribunal had no jurisdiction to entertain the dispute. The company also contended that the clubbing of three individual disputes in a single order of reference was bad in law. The Tribunal held that the State Government was the appropriate Government and that the reference was maintainable. The Tribunal also held that the termination of services of the workmen was unjustified and awarded them reinstatement with back wages.
Finding of the Court:
The Court held that the State Government was the appropriate Government to make the reference under Section 10 of the Industrial Disputes Act, 1947, as the situs of employment was within its territory and there was a nexus between the dispute and the territory of the State. The Court also held that the clubbing of three individual disputes in a single order of reference was an irregularity, but it did not go to the root of the matter and therefore did not render the reference void or voidable. The Court further held that the company was not entitled to adduce fresh evidence before the Tribunal to justify its action of terminating the services of the workmen, as it had not held any domestic enquiry before the termination. The Court upheld the award of the Tribunal and dismissed the writ petition filed by the company.
Issues: 1. Whether the State Government was the appropriate Government to make the reference under Section 10 read with Section 2(a) of the Industrial Disputes Act, 1947? 2. Whether the Tribunal had jurisdiction to entertain the dispute? 3. Whether the clubbing of three individual disputes in a single order of reference was bad in law? 4. Whether the company was entitled to adduce fresh evidence before the Tribunal to justify its action of terminating the services of the workmen? 5. Whether the termination of services of the workmen was justified?
Ratio Decidendi: 1. The appropriate Government for making a reference under Section 10 of the Industrial Disputes Act, 1947, is the Government of the State in whose territory the situs of employment is located and where there is a nexus between the dispute and the territory of the State. 2. The Tribunal has jurisdiction to entertain an industrial dispute referred to it by the appropriate Government under Section 10 of the Industrial Disputes Act, 1947. 3. Clubbing of individual disputes in a single order of reference is an irregularity, but it does not go to the root of the matter and does not render the reference void or voidable. 4. A company is not entitled to adduce fresh evidence before the Tribunal to justify its action of terminating the services of workmen if it has not held any domestic enquiry before the termination. 5. Termination of services of workmen without holding a domestic enquiry is unjustified.
Final Decision: The Court dismissed the writ petition filed by the company and upheld the award of the Tribunal.
( 1 ) IN the present writ proceeding the writ petitioner has challenged (a) Order No. 25 dated 30th March, 1999 (Annexure-'p-15' of the writ application) passed by the Third Industrial Tribunal. West Bengal (hereinafter referred to as the Tribunal) in Case No. VIII-69 of 1997, (b) Award dated 10th October, 2002 (Annexure-'p-19' of the writ application) passed by the Tribunal in Case No. VIII-69 of 1997 and (c) Order No. 888-IR/ (IR/11l-11-95) dated 12. 6. 1997 (annexure-'p-12' of the writ application issued by Government of West Bengal, Labour Department, under the signature of the Assistant Secretary to the Government of West Bengal.
( 2 ) IN exercise of the power conferred by section 10 read with section 2a of the Industrial Disputes Act, 1947 (herein after referred to as the said Act) the Governor of West Bengal was pleased to refer the industrial dispute between M/s. Sandoz (I) Ltd. , 3a, Shakespeare Sarani, Calcutta-71 (hereinafter referred to as the company) and their workmen (1) Shri Bikash Bhusan Ghosh, (2) Shri Pradip Kumar Mukherjee and (3) Shri Shyama Charan Mallick to the Tribunal for adjudication of the following issues. Issue (s) 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?
( 3 ) BEFORE the Tribunal the parties to the disputes submitted their respective written statements. Witnesses were examined by the parties to the disputes before the Tribunal.
( 4 ) BEFORE the Tribunal the company raised objection regarding maintainability of the reference by the State Government. By an order No. 25 dated 30. 3. 1999 (annexure 'p 15' of the writ application) the Tribunal held that the reference was very much maintainable for adjudication by the Tribunal.
( 5 ) THE Tribunal on 10. 10. 2002 passed an award in the aforesaid Case No. VIII-69/97. The relevant part of the award is set out herein below:"on the question of relief, it is well settled that in cases of wrongful dismissal, the normal relief is to award reinstatement. Accordingly, I held that all the employees are entitled to reinstatement with back wages for the period for which they have been kept out of employment. It transpires from the evidence adduced by the workmen that they retired from service. The date of superannuation of Shri Shyama Charan Mallick was 11. 11. 99, Shri Pradip Kumar Mukherjee was 31. 3. 2001 and Shri Bikash Bhusan Ghosh was 10. 6. 2001. No specific plan was taken by the employer that all the employees are gainfully employed elsewhere during the period of unemployment. When all the employees retired from service, there is no possibility of their reinstatement in service, acceptance of all legal dues upto the date of termination cannot be a bar to relief of reinstatement unless it is proved that acceptance was voluntary. In view of my above findings, I held that all the three employees have been able to establish their case beyond doubt and they are entitled to full back wages on the basis of last pay drawn by them from the date of termination till superannuation. Accordingly, the company is directed to pay full back wages to Shri Bikash Bhusan Ghosh, Shri Pradip Kumar Mukherjee and Shri Shyama Charan Mallick within two months from the date of publication of this award. The back wages to be calculated on the basis of last pay drawn by them. This is my award. The instant reference is thus disposed of. "
( 6 ) DR. Banerjee, the learned senior advocate for the writ petitioner argued that by virtue of three separate letters of transfers all dated 03. 10. 1994 the workmen were duly transferred from Calcutta w. e. f. 17. 10. 1994 and they were relieved from their Calcutta posting. Dr. Banerjee argued that, therefore, it is manifest that on maturity of the stipulated period for reporting at their respective places of transfer viz. Siwan (Bihar), Farrukhabad (Uttar Pradesh) and Karimgani (Assa
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