The words "refuses employment" and "refusal of employment" in Section 2A of the Industrial Disputes Act, 1947, as amended by the West Bengal Act 33 of 1989, should be understood in the context of the purpose for which they were incorporated in the Act by the Amendment Act of West Bengal and not in the light of Section 2(1) of the Act, which defines "lockout."

DIPANKAR DATTA, J.

1. ORDER No. 72, dated September 18, 2008, passed by the Judge, 2nd Industrial Tribunal, is called in Question in the present petition. By the said order, the petitioner (hereafter the employer) has been directed to pay a sum of Rs. 13,500 to the third respondent (hereafter the workman) within three months from date. It is noticed from the impugned order that the Tribunal overruled the objection raised by the employer that the reference is not maintainable.

2. WHILE arguing that the impugned order is illegal and hence unsustainable in law, Sri Bhanja Chowdhury, learned counsel for the employer contended that the workman did not raise any dispute with the employer and, therefore, the Government erred in making the reference vide Order, dated March 31, 2004. Reliance was placed on the decision in Sindhu Resettlement Corporation, Ltd. v. Industrial Tribunal of Gujarat AIR 1968 SC 529 : 1968-I-LLJ-834, wherein the Apex Court held as follows:

"... If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined/must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute...."

The order of reference, dated March 31, 2004, was next questioned. According to him, the workman had on his own left the service of the employer without taking any permission after defalcating an amount of Rs. 5,000. Since the workman had voluntarily left service, the reference made by the Government ought to be interdicted by the Court of writ.

3. LEARNED counsel for the employer and the workman have been heard at length. Two questions fall for a decision of this Court, viz.

(i) assuming that the workman did not raise any dispute with the employer, was the Government justified in making the reference?

(ii) whether the order of reference is bad in law and hence liable to be set aside?

4. IT appears from Paras 5 and 7 of the petition that the workman had raised dispute before the Labour Directorate pursuant whereto the employer received notice from the Conciliation Officer. Conciliation proceeding was initiated, which ultimately culminated in a failure report being submitted. IT was thereafter that the Government made an order referring the industrial dispute between the employer and the workman to the Second Industrial Tribunal for adjudication.?

The very fact that the workman insisted for reinstatement in service through the Conciliation Officer and the employer did not agree to take him back, in course of conciliation proceeding, is sufficient proof of a demand being raised which resulted in its refusal. The parties, were at logger-heads and, therefore, an industrial dispute did exist which could be referred.

5. THE decision in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat (supra), apparently supports the contention raised by Sri Bhanja Choudhury but in Avon (Services) Production Agencies (Private) Ltd. v. Industrial Tribunal, Haryana and Others AIR 1979 SC 170 : (1979) 1 SCC 1 : 1979-I-LLJ-l, the Apex Court ruled that the decision turns purely on the facts of the case.

6. IN Shambhu Nath Goyal v. Bank of Baroda, Jullundur AIR 1978 SC 1088 : (1978) 2 CCC 353 : 1978-I-LL.I-484 : (1978) 1 LLN 340, the Apex-Court after considering Sindhu Resettlement Corporation, Ltd. v. Industrial Tribunal of Gujarat (supra), ruled that the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in State of Madras v. CP. Sarathy, AIR 1953 SC 53. While interfering with the award of the Tribunal holding the reference to be incompetent, the Apex Court noticed the