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High Court Of Calcutta
Vikas Shridhar Sirpurkar, Soumitra Sen
B.G.SAMPAT - Appellant
Versus
INDIAN EXPRESS NEWSPAPERS (BOMBAY) PVT.LTD - Respondent
A. P. O. T. 658 Of 2003
Decided On : 04/04/2006
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 15 (2) (B) - REVIEW - JURISDICTION - APPROPRIATE GOVERNMENT - STATE OF WEST BENGAL - NOT APPROPRIATE GOVERNMENT - STATE OF MAHARASHTRA - APPROPRIATE GOVERNMENT.
Fact of the Case:
Petitioner was an employee of the respondent Indian Express (Bombay) Pvt. Ltd. He was transferred from Calcutta to Bombay but did not comply with the order. He was later convicted for gambling in a public street. The respondent initiated disciplinary proceedings against him and terminated his services. The petitioner raised an industrial dispute and filed an application for interim relief under Section 15 (2) (b) of the Industrial Disputes Act, 1947. The Tribunal rejected the application and held that the State of West Bengal was not the appropriate Government to make the reference. The petitioner challenged the decision of the Tribunal by filing a writ petition. The Single Judge set aside the finding of the Tribunal and held that the Government of West Bengal was the appropriate Government. The Indian Express preferred an appeal against the judgment of the Single Judge. The Division Bench allowed the appeal and held that the State of Maharashtra was the appropriate Government.
Finding of the Court:
The Division Bench held that the State of Maharashtra was the appropriate Government and not the State of West Bengal. The Division Bench considered the matter from all possible angles and came to the conclusive finding that not only with regard to control but also with regard to situs of employment as far as the petitioner's service was concerned, the government of Maharashtra would be the appropriate authority to make an order of reference.
Issues: 1. Whether the State of West Bengal was the appropriate Government to make the reference under Section 10 of the Industrial Disputes Act, 1947? 2. Whether the Division Bench erred in holding that the State of Maharashtra was the appropriate Government?
Ratio Decidendi: 1. The power of review is not inherent in Court, it is by reason of the powers conferred under the statute. 2. A person considering himself aggrieved, may apply for review to the Court which passed the decree or order when he discovers new and important matter of evidence which in spite of exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the said decree or order was passed or by reason of some mistake or error apparent on the fact of the record or for any other sufficient reason. 3. The proper construction of the works "any other sufficient reason" would mean a reason sufficient on grounds at least analogous to those specified immediately previously. 4. An application for review is not an appeal in disguise.
Final Decision: The application for review is dismissed.
( 1 ) THIS is an application for review of a judgment dated 23rd september, 2004 along with an application for condonation of delay.
( 2 ) THE application for review has been taken out on 22nd November, 2005. Therefore, there is a delay of about one year in preferring the above application.
( 3 ) AS an explanation for the reasons of delay the petitioner has stated that delay has occurred due to financial constraints and due to ill health. As the grounds made out in the application for consolation of delay was cryptic and without any material particulars the petitioner was given liberty to file a supplementary affidavit. Pursuant thereto a supplementary affidavit has been filed. Unfortunately, in the said supplementary affidavit also no cogent reasons have been given with regard to the delay. The petitioner has also stated that the lawyers to whom he had gone to take advice had opined that the petitioner should prefer a special leave petition. Though a review application was another option, but no favourable result would be expected out of it, since the review application will have to be filed before the same Hon'ble Judges of the Division bench who had passed the initial order. Since the petitioner was under financial constraints no special leave petition was preferred. But this application for review has been taken up when both the Hon'ble Judges of the Division Bench who had passed the initial order are no longer available in this Court.
( 4 ) THOUGH we are of the opinion that the petitioner has not been able to make out any ground whatsoever for condonation of delay, but since the petitioner is appearing in person we also propose to dispose of the review application on merits.
( 5 ) THE petitioner was an employee of the respondent namely, Indian expression (Bombay) Pvt. Ltd. (hereinafter referred to as 'the Indian Express' ). While he was in Calcutta by an order dated 1 st of August, 1998 he was transferred to Bombay office with effect from 5th of August, 1998. The petitioner, however, did not comply with the order of transfer and continued to make representations to the Bombay office for reconsideration of the order of transfer on, inter alia, the ground of hardship.
( 6 ) IT is significant to note that the petitioner did not challenge the order of transfer. Subsequent thereto on or about November 1998, the Indian Express came
to know that on 4th of August, 1998, the petitioner along with other persons were arrested by the Hare Street Police Station on charge of gambling on the street and a Case No. RR/668 of 1998 was registered against the petitioner. The concerned Metropolitan Magistrate on the basis of the case registered found the petitioner and others guilty of the offence accused, namely, gambling in public street.
( 7 ) BY reason of the conviction of the petitioner in the said case a show-cause notice dated 22nd November, 1998 was served upon him. The petitioner replied to the said show-cause notice, which was found to be unsatisfactory, and, accordingly, a charge-sheet was issued on behalf of the Indian Express to the petitioner.
( 8 ) THE said charge-sheet consists of two charges -1) Failure on the part of the petitioner to comply with the order of transfer; 2) The petitioner's conviction in the criminal case filed against him for gambling in a public street.
( 9 ) IT is an admitted position that the petitioner did not participate in the departmental proceeding held at Bombay. Inspite of knowing the fact that the indian Express was proposing to hold the enquiry at Bombay, the petitioner insisted that such enquiry should be held at Calcutta. As the petitioner did not participate in the said domestic enquiry the departmental proceeding was concluded in the absence of the petitioner. The Enquiry Officer on the basis of the materials available before him held that the charges against the petitioner were proved.
( 10 ) THE disciplinary authority concurred with the findings of the Enquiry offi
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