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2005 Supreme(Cal) 520
High Court Of Calcutta
Arun Kumar Mitra
BENGAL METROGRAPH CO.(P) LTD. - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 1814 Of 2003
Decided On : 08/12/2005
ANANT KUMAR SHAH, Arunabha Ghosh, JAYANTI DHAR QUADERq
The Tribunal has no power or jurisdiction to strike out the defence of a company for non-compliance of the order passed under section 15 (2) (b) of the Industrial Disputes Act, 1947 as an interim measure.
Headnote:
INDUSTRIAL DISPUTE - Domestic Enquiry - Legality - Validity - Effect on Award - Interim Relief - Non-Compliance - Striking Out Defence - Jurisdiction of Tribunal - Ex Parte Award - Validity. The Tribunal has no power or jurisdiction to strike out the defence of a company for non-compliance of the order passed under section 15 (2) (b) of the Industrial Disputes Act, 1947 as an interim measure.
Fact of the Case:
The workman raised an industrial dispute which culminated into an order of reference dated December 14th 1993 issued by Labour department, Government of West Bengal for adjudicating the issues as mentioned therein and it was referred to the learned Second Industrial tribunal, West Bengal. Before the learned Tribunal the workman filed written statement and the petitioner company also filed a written statement along with a list of documents. Before the learned Tribunal the evidence were adduced by both the parties, witnesses were examined and cross-examined and the learned tribunal after considering all the materials on record and the oral and documentary evidence and after hearing the argument of the parties passed an order being order No. 42 dated December 9, 1996.
Finding of the Court:
1. The Tribunal has no power or jurisdiction to strike out the defence of a company for non-compliance of the order passed under section 15 (2) (b) of the Industrial Disputes Act, 1947 as an interim measure. 2. The ex parte award passed by the learned Tribunal is also bad in law and should be set aside.
Issues: 1. Whether the learned Tribunal has got the power or jurisdiction to strike out the defence if there is non-compliance of order passed under section 15 (2) (b) of the Industrial Disputes Act, 1947? 2. Whether in the instant case the ex parts award passed by the learned tribunal is tenable in law or not.
Ratio Decidendi: 1. The provisions of section 15 (2) (b) of the Industrial Disputes Act, 1947 do not provide for any default clause or consequence for non-payment of interim relief by the charged company. 2. The Tribunal is not a Court and cannot innovate procedure or pass orders which are not provided in the statute or not in accordance with law or fairness of justice. 3. The principle of social justice requires justice to both parties and welfare legislation does not mean that a particular workman is entitled to get relief to the exclusion of others or the company. 4. Article 51A of the Constitution, which embodies the duty of a citizen, is not enforceable before the Court. 5. The interim part of the procedure cannot touch the main part and the company can challenge the quantum determined by the Tribunal or raise other factors in its defence. 6. Striking out of a defence is a very serious matter and should not be done lightly. 7. The word "shall" used in section 11A of the Bihar Building (Lease, Rent and Eviction) Control Act 3 of 1947 has been construed as directory and not mandatory, and the same principle applies to section 15 (2) (b) of the Industrial Disputes Act, 1947. 8. The Tribunal failed to consider other documents on record or other parts of the record as directed by the High Court, and therefore the ex parte award passed by the Tribunal is bad in law.
Final Decision: The writ petition is allowed. The impugned award passed by the learned Tribunal is set aside. The learned Tribunal is directed to hear out the main matter on merit and complete the hearing within six months from the date of this order.
( 1 ) THE petitioner company issued chargesheet on the respondent No. 3. Ashok Mukherjee dated 16/12/1992. The inquiry was held and the Enquiry Officer gave his finding in the domestic inquiry proceedings. The Enquiry Officer in conclusion of the inquiry observed "from the evidence and the documents filed. I am convinced that Sri Mukherjee is guilty of the charges labelled against him. " A copy of the inquiry report of the Enquiry Officer dated April 8,1993 along with the order of the disciplinary authority are annexed hereto and marked with the letter 'p-2' collectively to the writ petition.
( 2 ) THE workman raised an industrial dispute which ultimately culminated into an order of reference dated December 14th 1993 issued by Labour department, Government of West Bengal for adjudicating the issues as mentioned therein and it was referred to the learned Second Industrial tribunal, West Bengal.
( 3 ) BEFORE the learned Tribunal the respondent No. 3, Ashok Mukherjee filed written statement and the petitioner company also filed a written statement along with a list of documents.
( 4 ) BEFORE the learned Tribunal the evidence were adduced by both the parties, witnesses were examined and cross-examined and the learned tribunal after considering all the materials on record and the oral and documentary evidence and after hearing the argument of the parties passed an order being order No. 42 dated December 9, 1996. Content of the said order are as follows :"now after careful perusal of the evidence both oral and documentary on record and after giving due consideration to the evidence of the workman and the witness of the company I find no irregularities to the holding of the domestic enquiry by the Enquiry Officer, specially when for reasons best known to the workman he has not attended the hearing on any of the three days. Therefore, it cannot be held the enquiry as perverse or not according to the norms of law. "in the ordering portion of the said order it was written as follows:"that the domestic enquiry is found to be illegal and not valid and proper-fixed 3. 1. 1997 for hearing under section HA of the Industrial Disputes act. "
( 5 ) THE copies of the depositions made before the learned Tribunal by the parties and the order No. 42 dated December 9, 1996 have been annexed and collectively marked with the letter "p-3".
( 6 ) THE respondent No. 3/workman filed an application before the learned tribunal wherein it was pleaded that the workman reserved the right to challenge the said order No. 42 dated December 9, 1996. The petitioner company has annexed the copy of the application filed by the workman on march 20, 1997 as Annexure- "p4".
( 7 ) THE learned Tribunal proceeded with the matter in terms of section 11a of the Industrial Disputes Act as directed earlier. Evidence were adduced by the parties and the next date was fixed on October 12, 1998 when the workman pointed out to the learned Tribunal about the ordering portion of order No. 42 dated December 9, 1996.
( 8 ) THE petitioner company filed an application before the learned Tribunal dated November 5, 1998 praying for finding out the real affairs as there was ambiguity in the ordering portion of the learned Tribunal's order No. 42 (as there was) dated December 9, 1996. In the writ petition the petitioner company has annexed a copy of the said application and has made it Annexure-"p-5".
( 9 ) IT is to be noted that thereafter the learned Trial Judge of the Tribunal was transferred and another learned Judge, Sri P. K. Majumdar joined the learned Tribunal. The respondent No. 3/ workman filed an objection to the application dated November 5, 1998 filed by the petitioner company and the learned Tribunal heard the parties and passed an order being order No. 68 dated November 25, 1998 holding inter alia as follows :"prima facie it appears that the ordering portion is not consistent with the other portion of the final order hence the matter should be enqu
