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High Court Of Calcutta
Bhaskar Bhattacharya, Sankar Prasad Mitra
SANDHYA BAUL - Appellant
Versus
DIRECTOR OF PANCHAYAT - Respondent
W. P. 050 Of 2005
Decided On : 08/22/2005
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(G), 2(J), 17, 17B - GRAM PANCHAYAT - INDUSTRY - PRADHAN - EMPLOYER - APPOINTMENT - LEGALITY - REINSTATEMENT - SUBSISTENCE ALLOWANCE.
Fact of the Case:
The appellant, a daily rated typist in a Gram Panchayat, was terminated without notice or payment in lieu of notice. She filed a complaint with the Assistant Labour Commissioner, who initiated a conciliation proceeding and referred the matter to the Labour Court. The Labour Court held that the termination was illegal and ordered the appellant's reinstatement without back wages. The Lieutenant Governor published the award, but the Pradhan of the Gram Panchayat filed a writ petition challenging the award. The Single Judge set aside the award and remanded the matter back to the Labour Court for fresh adjudication.
Finding of the Court:
The High Court held that the Gram Panchayat is an "industry" within the meaning of section 2(j) of the Industrial Disputes Act, 1947, and the Pradhan of the Gram Panchayat is the "employer" within the meaning of section 2(g) of the Act. The Court further held that the appointment of the appellant was not made in accordance with the rules and was, therefore, not legal. The Court directed the Pradhan to pay the appellant subsistence allowance from the date of the award till the date of the order.
Issues: 1. Whether a Gram Panchayat is an "industry" within the meaning of section 2(j) of the Industrial Disputes Act, 1947? 2. Whether the Pradhan of a Gram Panchayat is an "employer" within the meaning of section 2(g) of the Act? 3. Whether the appointment of the appellant was made in accordance with the rules and was, therefore, legal? 4. Whether the appellant is entitled to reinstatement and back wages?
Ratio Decidendi: 1. The definition of "industry" in section 2(j) of the Industrial Disputes Act, 1947 is wide enough to include a Gram Panchayat. 2. The Pradhan of a Gram Panchayat is the "employer" within the meaning of section 2(g) of the Act, as he is the chief executive officer of the Gram Panchayat and has the responsibility for the due fulfilment of the duties imposed on the Gram Panchayat under the Act and the regulations. 3. The appointment of the appellant was not made in accordance with the rules and was, therefore, not legal, as the Pradhan did not have the authority to make such an appointment without the approval of the competent authority. 4. The appellant is not entitled to reinstatement and back wages, as her appointment was not legal.
Final Decision: The High Court modified the order of the Single Judge and directed the Labour Court to dispose of issues Nos. 2 and 4 on the basis of evidence already on record and further evidence as may be given by the parties. The Court also directed the Pradhan to pay the appellant subsistence allowance from the date of the award till the date of the order.
( 1 ) THESE two mandamus appeals were heard together as points involved herein are almost similar.
( 2 ) WE, however, propose to deliver separate judgment one after the other. MAT No. 021 of 2005 in W. P. No. 008 of 2005 sandhya Baul vs. Director Panchayat and Anr.
( 3 ) THIS mandamus appeal is at the instance of the respondent No. l in a writ application filed by the Director of Panchayat and is directed against the order dated July 11, 2005 passed by a learned Judge of this Court thereby disposing of the said writ application under Article 226 of the Constitution of India against an award dated 25th March, 2004 in ID Case No. 11 of 2002.
( 4 ) THE appellant herein was allegedly appointed and/or engaged with effect from 01st September, 1996 by the Pradhan of Basantipur Gram Panchayat to discharge the work of Gram Panchayat as a daily rated typist in the office of the Gram Panchayat, Basantipur, Middle Andaman. She continued there till 31st October, 2004. According to her, she along with two other daily rated workers were disengaged by the Pradhan without serving any notice and without making any payment in lieu of notice of termination as provided under section 25f of the Industrial Disputes Act (hereinafter referred to as the Act ). She moved before the Assistant Labour Commissioner, Rangat complaining the alleged illegal termination. The Assistant Labour Commissioner, Rangat initiated a conciliation proceeding and after hearing all the parties submitted a "failure report" to the Labour Secretary, Andaman and Nicobar Administration. On the basis of "such failure report", the Lieutenant Governor, Andaman and Nicobar islands, made a reference in terms of sub-section (5) of section 12 of the Act. The terms of reference are as follows:" (i) Is a Gram Panchayat an Industry within the meaning of section 2 (j) of the Industrial Disputes Act, 1947? (ii) Whether the Pradhan of Gram Panchayat who is an elected member for a fixed tenure can be termed to be an employer under section 2 (g) of Industrial disputes Act, 1947? (iii) Whether the appointments in question were made as per rule and proper and legal? (iv) Whether the demand of Shri Mahadeb Bachar, Ex-daily rated peon Shri smore Tutty ex-daily rated sweeper and Miss. Sandhya Baul ex-daily rated typist for their reinstatement in regular scale of pay with back wages against the termination of their service by the office of the Pradhan, Gram Panchayat, basantipur is legal and justified? If so, what relief the aforesaid workmen are entitled to?"
( 5 ) THE Pradhan of the Gram Panchayat, Basantipur, though impleaded, did not appear in spite of service of summons and the Chief Secretary of the andaman and Nicobar Administration was impleaded as the second party in the proceedings being the ID. Case No. 11 of 2002.
( 6 ) ULTIMATELY, the learned Labour Court by the award dated 25th March, 2004 disposed of the proceeding by declaring that the termination of Miss. Sandhya Baul, the appellant herein, a former daily rated typist, was neither legal nor justified and that she was entitled to be reinstated in service with immediate effect without any back wages. It was further declared that Miss baul should be given benefit of continuous service as if there had been no termination. The Lieutenant Governor published the said award vide notification dated 25th November, 2004.
( 7 ) BEING dissatisfied, the respondent No. 1 filed a writ application before a learned Judge of this Court and by the order impugned herein, the learned judge set aside the award and remanded the matter back to the Labour Court for fresh adjudication as per the terms of reference made before it.
( 8 ) IT may not be out of place to mention here that before the learned Judge of this Court an application under section 17b of the Act was filed by the appellant herein, but the learned Judge did not pass any order on such application before disposal of the matter.
( 9 ) BEING dissatisfied, the appe
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