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High Court of Calcutta
Bhagabati Prasad Banerjee & Baboo Lall Jain, JJ.
Vishan Roy – Appellant
Versus
Bayer India Ltd – Respondent
FMAT No. 89 of 1991
Decided On: May 05, 1993
INDUSTRIAL DISPUTE - SECTION 15 (2) (B) OF THE INDUSTRIAL DISPUTES ACT - SCOPE AND AMBIT OF THE POWER OF THE INDUSTRIAL TRIBUNAL - INTERIM RELIEF - CONDITIONS FOR GRANT - INTERPRETATION OF THE PROVISO TO SECTION 15 (2) (B) - RULES OF INTERPRETATION - ESTOPPEL OR WAIVER - APPLICABILITY TO RETRENCHED WORKMAN - POWER OF THE TRIBUNAL TO FIX THE QUANTUM OF INTERIM RELIEF - MAINTENANCE PENDENTE LITE UNDER HINDU MARRIAGE ACT - COMPARISON - Vires OF THE PROVISION OF THE ACT FOR TREATING THE CASE OF DISCHARGE, DISMISSAL, TERMINATION OF RETRENCHMENT ON THE GROUND OF DISCRIMINATION - PERVERSE FINDING OF THE TRIBUNAL - INTERFERENCE BY THE WRIT COURT.
Fact of the Case:
The appellant, a car driver employed by the respondent company, was terminated from service in 1976. The termination was challenged by the appellant and an award was passed in his favor in 1979. However, the management filed an appeal against the award, which was dismissed. The appellant was reinstated in service in 1985, but was retrenched again on the same day. The appellant filed an application for interim relief under Section 15 (2) (b) of the Industrial Disputes Act, which was rejected by the Industrial Tribunal. The appellant challenged the order of the Tribunal by filing a writ petition, which was also dismissed by the High Court.
Finding of the Court:
The Court held that the Industrial Tribunal erred in rejecting the appellant's application for interim relief. The Court held that the Tribunal's finding that the appellant was not entitled to interim relief because he had received back wages and was self-employed was perverse. The Court also held that the Tribunal had erred in holding that the appellant was estopped from challenging the order of retrenchment because he had accepted the retrenchment benefits. The Court further held that the Tribunal had erred in holding that the appellant was not entitled to interim relief because he had not proved that he was unemployed. The Court held that the appellant was entitled to interim relief in accordance with the provisions of Section 15 (2) (b) of the Industrial Disputes Act with effect from the date of retrenchment.
Issues: 1. Whether the Industrial Tribunal erred in rejecting the appellant's application for interim relief under Section 15 (2) (b) of the Industrial Disputes Act? 2. Whether the Tribunal's finding that the appellant was not entitled to interim relief because he had received back wages and was self-employed was perverse? 3. Whether the Tribunal erred in holding that the appellant was estopped from challenging the order of retrenchment because he had accepted the retrenchment benefits? 4. Whether the Tribunal erred in holding that the appellant was not entitled to interim relief because he had not proved that he was unemployed?
Ratio Decidendi: 1. The Court held that the Industrial Tribunal erred in rejecting the appellant's application for interim relief. The Court held that the Tribunal's finding that the appellant was not entitled to interim relief because he had received back wages and was self-employed was perverse. The Court also held that the Tribunal had erred in holding that the appellant was estopped from challenging the order of retrenchment because he had accepted the retrenchment benefits. The Court further held that the Tribunal had erred in holding that the appellant was not entitled to interim relief because he had not proved that he was unemployed. 2. The Court held that the appellant was entitled to interim relief in accordance with the provisions of Section 15 (2) (b) of the Industrial Disputes Act with effect from the date of retrenchment.
Final Decision: The Court set aside the order of the Industrial Tribunal and the order of the High Court and directed that the appellant be paid interim relief with effect from the date of retrenchment.
1. THIS is an appeal against the judgment and order dated 12th December 1990 passed by the learned trial judge in C. O. No. 103 (w) of 1989 dismissing the writ application filed by the appellant writ petitioner against the order dt. 17th June, 1988 passed by Shri R. K. Ghatak, Judge, 8th Industrial Tribunal rejecting the application of the workman for interim relief as provided under section 15 (2) (b) of the West Bengal Amendment of the Industrial Disputes Act.
2. IN this appeal the question arose as to the scope and ambit of the power of the Industrial Tribunal under section 15 (2) (b) of the Industrial dispute Act, 1947 as amended by the West Bengal Industrial Dispute (2nd amendment) Act, 1980. For deciding the issue raised in this appeal it would be necessary for us to refer to the provisions of section 15 (2) (b) of the said Act which is as follows : "15 (2) Where an industrial dispute has been referred to a labour court or tribunal it shall -a) after filing of statements and taking of evidence give day to day hearing and give its award, upon determination or decision in the manner specified in 17b without any delay : b) Upon hearing the parties to the dispute, determine within a period of 60 days, from the date of reference under Sub-section (1) of section 10 or within such shorter period as specified in the order of reference under sub-section (1) of Section 10. the quantum of interim relief admissible, if any : provided that the quantum of interim relief relating to discharge, dismissal, retrenchment or termination of service or workman shall be equivalent to subsistence allowance as may be admissible under the West Bengal Payment of Subsistence Allowance Act, 1969".
The facts of this case relevant for the purpose of the appeal are that the appellant petitioner was employed as car driver under the respondents company, Bayer (India) Ltd. and was working as such from 14. 11. 1967. On or about 2nd March, 1976 the service of the appellant petitioner was terminated by the respondent-company by paying one month's salary in lieu of notice on 2nd March, 1976. The service of the appellant was terminated as the appellant petitioner did not carry out an order of transfer. The said termination of service of the appellant petitioner was the subject matter of an industrial dispute and the Labour Court on consideration of the matter passed on award holding that the termination of service of the appellant petitioner was justified by an award dt. 28th june, 1979. Being aggrieved by and dissatisfied with the said award dt. 28th June, 1979 the appellant petitioner filed a writ application where upon a rule was issued, being C. R. No. 10419 (W) of 1979. The said Civil rule came up for final hearing before Amitava Dutta, J. (as his Lordship then was) and by an order dated 15th February, 1984 the learned Judge field that the order of termination of service simpliciter tantamounts to retrenchment and as such the same was void abinitio as the requirement of Section 25f of the Industrial Dispute Act was not complied with by the management and that the said award was quashed by the said learned judge. The management was directed to pay the back wages to the appellant petitioner on the footing that he had been continuing in service and the learned Judge also observed in the said judgment that it would be open to the management to retrench the appellant petitioner after complying with the requirement of Section 25f of the Industrial Dispute act and in accordance with law. Against the judgment and order dated 15th February, 1984 passed in Civil Rule No. 10419 (w) of 1979, the management preferred an appeal before the Division Bench of this Court. Ultimately the appeal fifed by the; management was dismissed. After the appeal was dismissed, the management reinstated the appellant petitioner by the order dt. 30. 1. 85 with effect from 5th February, 1985 in the service of the company at Calcutta and paid a sum of Rs. 1,57,713. 87 after deduct
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