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2003 Supreme(Cal) 336
High Court Of Calcutta
D. P. KUNDU
WIMCO LTD - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 368 Of 2003
Decided On : 07/10/2003
ASISH KUMAR DAS, BIKASH RANJAN BHATTACHARJI, N.K.MEHTA, PRABIR BHOWMICK, Rajat Dutta, SANTI DAS, TAPAS BANERJI
A purported award that does not determine the questions or points specified in the Government Order of Reference and is not an adjudication on merits of any industrial dispute or a question relating thereto is not an "award" within the meaning of section 2(b) of the Industrial Disputes Act, 1947.
Headnote:
INDUSTRIAL DISPUTES - NO DISPUTE AWARD - FUNCTUS OFFICIO - AWARD - DEFINITION - INDUSTRIAL DISPUTE - DEFINITION - WEST BENGAL INDUSTRIAL DISPUTES RULES, 1958 - RULE 27 - APPLICATION - INDUSTRIAL DISPUTES ACT, 1947 - SECTIONS 2(B), 10, 17, 17-A, 17-AA, 20(3) - INTERPRETATION - INDUSTRIAL DISPUTES (WEST BENGAL AMENDMENT) ACT, 1980 - SECTION 8 - INDUSTRIAL DISPUTES (WEST BENGAL AMENDMENT) ACT, 1983 - SECTION 4.
Fact of the Case:
The writ petitioner challenged an order passed by the Industrial Tribunal, West Bengal, setting aside a "no-dispute award" and restoring the case to its original file. The petitioner argued that the Tribunal had become functus officio after the expiry of 30 days from the date of the award and that the Tribunal lacked the jurisdiction to entertain the workman's application for setting aside the award.
Finding of the Court:
The Court held that the purported award dated 15.5.2002 passed by the Tribunal was not an "award" within the meaning of section 2(b) of the Industrial Disputes Act, 1947. The Court observed that the purported award did not determine the questions or points specified in the Government Order of Reference and was not an adjudication on merits of any industrial dispute or a question relating thereto. Therefore, the Tribunal had not become functus officio and had the jurisdiction to entertain the workman's application for setting aside the award.
Issues: 1. Whether the purported award dated 15.5.2002 passed by the Tribunal was an "award" within the meaning of section 2(b) of the Industrial Disputes Act, 1947. 2. Whether the Tribunal had become functus officio after the expiry of 30 days from the date of the award. 3. Whether the Tribunal had the jurisdiction to entertain the workman's application for setting aside the award.
Ratio Decidendi: 1. The term "award" under section 2(b) of the Industrial Disputes Act, 1947, has two parts: (i) a determination, final or interim, of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal, or National Industrial Tribunal; and (ii) an arbitration award made under section 10a. 2. The basic postulate common to both parts of the definition is the existence of an industrial dispute, actual or apprehended. 3. The determination contemplated by the definition is of the industrial dispute or a question relating thereto, on merits. 4. The purported award dated 15.5.2002 did not determine the questions or points specified in the Government Order of Reference and was not an adjudication on merits of any industrial dispute or a question relating thereto. Therefore, it did not fall within the definition of an "award" under section 2(b) of the Act. 5. The Tribunal had not become functus officio as the purported award dated 15.5.2002 was not an "award" within the meaning of section 2(b) of the Act. Therefore, the Tribunal had the jurisdiction to entertain the workman's application for setting aside the award.
Final Decision: The Court dismissed the writ petition, holding that the Tribunal had the jurisdiction to entertain the workman's application for setting aside the award and that the order passed by the Tribunal was not illegal.
( 1 ) THE Court: In this writ proceeding the writ petitioner has challenged order No. 36 dated 5th September, 2002 and order No. 43 dated 15th January, 2003 passed by the Fourth Industrial Tribunal, West Bengal (hereinafter referred to as the said Tribunal) in case No. VIII-100/2000.
( 2 ) BY virtue of order No. 115-IR dated 19. 7. 2000 issued by the Government of West Bengal, Labour Department, the following issues were referred to the said Tribunal for adjudication. Issues1. Whether the dismissal of Shri Tapan Prasad Banerjee (Ticket No. 3986) from his service with effect from 30. 1. 98 is justified2. What relief, if any, is he entitled to
( 3 ) BY virtue of a purported award dated 15. 5. 2002 the said Tribunal passed a". . . . NO-DISPUTE award on footing that there exists no dispute between the parties". The relevant lines from the aforesaid award dated 15. 5. 2002 are set out herein below: "after the receipt of the reference usual notices were sent to the parties for their appearance and for filing written statement. Both the parties file their respective written statements in due course. Thereafter the case was fixed for hearing. It reveals from the record that the workman has taken several adjournments on different pretext. Today is also fixed for hearing on validity of the domestic enquiry. The learned advocate for the company is present and the workman is absent on repeated calls. At that time learned advocate for the workman named Shri Swapan Bhattacharya personally appeared before the Court and submits that his client has no instruction to proceed with the case and he further submits that in so many occasions he contracted with his client but he did not turn up so necessary order may be passed by this Tribunal. The totality would go to show that the workman is not at all diligent to proceed with the case and he is in habit of adjournment after adjournments and this day took no steps. It, therefore appears that it is of no use to drag the matter any further and it is a fit case passing a no-dispute award. I, therefore, pass a no-dispute award on footing that there exists no dispute between the parties. This is my award. The award be sent to the Government. " (emphasis added)
( 4 ) THE concerned workman by an application signed by him on 18. 6. 2002 before the said Tribunal prayed for restoration of the case No. VIII-100/2000 by setting aside the aforesaid purported award dated 15. 5. 2002.
( 5 ) THE writ petitioner opposed the aforesaid prayer of the workman for restoration by setting aside the aforesaid purported award dated 15. 5. 2002.
( 6 ) THE said Tribunal by an order No. 36 dated 5. 9. 2002 ordered as follows:"ordered that the workman's petition dated 18. 6. 2002 for setting aside the 'no Dispute Award' passed by this Tribunal on 15. 5. 2002 be allowed on contest without any cost. The 'no Dispute Award' passed by the Tribunal on 15. 5. 2002 is set aside and the case is restored to its original file. To 26. 09. 02 for hearing over the validity of the domestic enquiry. Parties must come ready on the date fixed. "
( 7 ) THE writ petitioner filed an application dated 26. 9. 2002 before the said Tribunal for reviewing of the order No. 36 dated 5. 9. 2000 passed by the said Tribunal.
( 8 ) THE said Tribunal by an order No. 43 dated 15. 1. 2003 rejected the aforesaid application dated 26. 9. 2002 filed by the writ petitioner for reviewing for recalling order No. 36 dated 5. 9. 2002 passed by the said Tribunal, on contest, with exemplary cost of Rs. 200/- and fixed 10. 2. 2003 for hearing over validity of the domestic enquiry. The relevant lines from the said order No. 43 dated 15. 1. 2003 passed by the said Tribunal are set out herein below:"considering the facts and circumstances and in view of my earlier observation in the body of the order the instant petition for reviewing or recalling the order passed by this Tribunal on 5. 9. 2002 be rejected with exemplary cost. Hence is ordered: that the pe
