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1998 Supreme(Cal) 259
HIGH COURT OF CALCUTTA
Samaresh Banerjea, J.
Debabrata Sen
Vs.
State of West Bengal & Ors.
C.O. No. 6632 (W) of 1990
Decided On : June 25, 1998
Partha Sengupta. Partha Bhanga Chowdhury, Swarup Pal for the petitioners.
Aloke Kr. Banerjee, Subimal Mukherjee for the respondent.
The Industrial Tribunal has the power to enforce its order directing payment of interim relief to the workman by making payment of such interim relief as a condition precedent for the employer to participate in the industrial dispute. The High Court has the jurisdiction under Article 226 of the Constitution to issue a mandate upon the employer to comply with the order of the tribunal for payment of interim relief.
Headnote:
INDUSTRIAL DISPUTES - INTERIM RELIEF - ENFORCEMENT - POWER OF TRIBUNAL - WRIT JURISDICTION - RIGHT TO LIFE - SOCIAL AND ECONOMIC JUSTICE - CONSTITUTIONAL DUTY OF THE STATE - INTERPRETATION OF STATUTES - WELFARE LEGISLATION - INDUSTRIAL TRIBUNAL - POWER TO REGULATE PROCEDURE - ENFORCEMENT OF ORDER - PAYMENT OF INTERIM RELIEF AS CONDITION PRECEDENT FOR PARTICIPATION IN PROCEEDINGS - JURISDICTION OF HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION - PUBLIC ELEMENT - STATUTORY DUTY - LEGAL OBLIGATION - FUNDAMENTAL DUTY OF CITIZEN - COMPLIANCE WITH ORDER OF TRIBUNAL.
Fact of the Case:
The petitioner, a head office staff of the respondent company, was dismissed from service. He raised a dispute with the Assistant Labour Commissioner, West Bengal, which was referred to the Industrial Tribunal. The tribunal directed the company to pay interim relief to the petitioner at the rate of 50% for the first 90 days and 75% thereafter till the disposal of the reference. The company did not pay the interim relief despite the order of the tribunal. The petitioner made an application to the tribunal to make payment of interim relief as a condition precedent for the company to participate in the industrial dispute. The tribunal rejected the application on the ground that it had no power to enforce its order in that manner. The petitioner filed a writ petition in the High Court challenging the order of the tribunal.
Finding of the Court:
The High Court held that the Industrial Tribunal has the power to enforce its order directing payment of interim relief to the workman by making payment of such interim relief as a condition precedent for the employer to participate in the industrial dispute. The court also held that the High Court has the jurisdiction under Article 226 of the Constitution to issue a mandate upon the employer to comply with the order of the tribunal for payment of interim relief.
Issues: 1. Whether the Industrial Tribunal has the power to enforce its order directing payment of interim relief to the workman by making payment of such interim relief as a condition precedent for the employer to participate in the industrial dispute? 2. Whether the High Court has the jurisdiction under Article 226 of the Constitution to issue a mandate upon the employer to comply with the order of the tribunal for payment of interim relief?
Ratio Decidendi: 1. The power of the Industrial Tribunal to enforce its order directing payment of interim relief to the workman can be read in section 11 of the Industrial Disputes Act, which empowers the tribunal to regulate its own procedure. In exercise of such power, the tribunal can evolve a procedure for enforcement of an order directing payment of interim relief to the workman. 2. The High Court has the jurisdiction under Article 226 of the Constitution to issue a mandate upon the employer to comply with the order of the tribunal for payment of interim relief. When an Industrial Tribunal after contested hearing passes an order for payment of interim relief to the workman under section 15(2)(b) of the Act, but employer does not comply with the order of the tribunal and does not pay such amount, the right to life of workman which includes the right of livelihood as guaranteed under Article 226 of the Constitution of India is certainly seriously affected. It is the legal obligation of every party before the tribunal to comply with the legal and valid order of the tribunal.
Final Decision: The High Court set aside the impugned order of the tribunal and directed the respondent to comply with the order of the tribunal directing payment of interim relief. The court also directed the respondent employer to go on paying the interim relief month by month by the 5th of succeeding month, and such payment of monthly interim relief shall be made by the Tribunal a condition precedent for the employer to participate at the proceedings before the tribunal for adjudication of the disputes between the parties.
S. Banerjea, J.: Is an Industrial Tribunal powerless to enforce its order passed under section 15B of the Industrial Disputes Act for payment of interim relief to the workman by the employer when despite the order of the tribunal directing payment of such interim relief, the same is not paid? Can the Industrial Tribunal in such a situation direct payment of such interim relief as condition precedent for the employer to participate in the industrial dispute? Can the writ court in exercise of its jurisdiction under Article 226 of the Constitution of India direct the employer immediately to pay the interim relief directed to be paid by the Industrial Tribunal in favour of the workman when the employer despite such order does not pay such amount, but successfully creates obstruction in the matter of such payment resorting to lengthy litigations?
2. All these questions have arisen in the present writ application as despite an order passed by the Industrial Tribunal directing the employer to pay the workman interim relief, the same was not paid by the employer and the prayer of the workman for making such payment as condition precedent to participation in the Industrial Dispute by the employee has been rejected by the Tribunal.
3. Admittedly the petitioner who was appointed by the respondent No.3 as a head office staff and later was transferred to Santoshpore factory of the respondent No. 3 company was dismissed from service from September 21, 1994 after holding a disciplinary enquiry.
4. Thereafter the petitioner raised a dispute with the Assistant Labour Commissioner, West Bengal, but the conciliation proceeding having failed, a failure report was sent to the respondent No. 1 under section, 12(4) of the Industrial Disputes Act and thereafter the respondent No. 1 referred the dispute, namely, whether the dismissal of service of the petitioner is justified and- to what relief, if any, the workman is entitled to, to the 8th Industrial Tribunal, West Bengal.
5. After filing of the written statement the workman made an application for interim relief in terms of section 15(2)(b) of the Industrial Disputes Act being in a serious and critical financial condition and the aforesaid application of the petitioner after contested hearing was allowed by the tribunal directing the respondent No.3, company to pay interim relief to the workman at the rate of 50% for the first 90 days from the date of reference of his last drawn salary of Rs. 3030/- and thereafter 75% of his last drawn salary till the disposal of the reference. Thereafter the petitioner as per the order of the tribunal filed an undertaking by an affidavit that he would refund the entire amount of interim relief within a fortnight if the decision ultimately goes against him. Although in course of hearing the respondent No. 3 sought to argue that such undertaking was not filed by the petitioner, it appears that such undertaking has been filed by the petitioner before the tribunal.
6. Notwithstanding such order passed by the said tribunal on February 23, 1996 directing payment of interim relief and compliance by the workman of the order of the tribunal by filing the undertaking in the manner aforesaid, the respondent No.3 company did not pay such interim relief as directed.
7. The petitioner thereafter on April 96 made an application before the said tribunal drawing its attention to the fact that the employer is not paying the amount of interim relief despite such order of the tribunal and unless such payments is enforced by the tribunal the employer will not pay such amount.
8. It was, therefore, prayed that the tribunal may pass an order making payment of interim relief as condition precedent for the employer to participate in the further hearing of the case.
10. The aforesaid application was objected to by the respondent company, inter alia, on the ground that such an application is not maintainable as the same is beyond the scope of ambit of the provisions of the Industrial Dispu
