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2013 Supreme(Cal) 806
High Court of Judicature at Calcutta
HARISH TANDON, J.
Murlidhar Ratanlal Exports Limited & Another
Versus
The State of West Bengal & Others
W.P. 27330 (W) of 2013 with W.P. 7063 (W) of 2012
Decided On : 17-12-2013
For the Petitioners:Arunabha Ghosh, Anant Shaw, Ratak Dutta, Ravi Kumar Dubey, Advocates.
For the Respondents:R3 &R4, Jayanta Dasgupta, Balaram Patra, N.C. Bhattacharya, Somnath Banerjee, Advocates.
Issuance of a certificate of pending conciliation proceedings before the prescribed period under Rule 12A of the West Bengal Industrial Disputes Rules, 1958, is not fatal and does not render the proceedings initiated on the basis of such certificate non-maintainable.
Headnote:
INDUSTRIAL DISPUTE - CERTIFICATE OF PENDING CONCILIATION PROCEEDINGS - ISSUANCE BEFORE PRESCRIBED PERIOD - MAINTAINABILITY OF PROCEEDINGS - OPPORTUNITY TO FILE WRITTEN STATEMENT AFTER FRAMING ISSUES - INDUSTRIAL DISPUTES RULES, 1958, RULE 12A.
Fact of the Case:
The petitioner challenged the Labour Court's award declaring the termination of the private respondent's employment arbitrary and unjust and directing the petitioner to pay full back wages with all consequential benefits from the date of termination till the date of superannuation. The main issues raised were the maintainability of the proceedings initiated on the basis of a certificate issued before the prescribed period under Rule 12A of the West Bengal Industrial Disputes Rules, 1958, and whether the Labour Court should have provided an opportunity to the petitioner to file a written statement after framing the issues.
Finding of the Court:
1. The Court held that the provisions of Rule 12A of the West Bengal Industrial Disputes Rules, 1958, are directory in nature and not mandatory, relying on a Division Bench judgment of the same court. 2. The Court found that issuance of a certificate before the expiration of sixty days from the date of raising the dispute is not fatal but may be termed as irregular, not resulting in the dismissal of the proceeding. 3. The Court held that the petitioner's plea that the Labour Court should have provided an opportunity to file a written statement after framing the issues was neither taken before the Labour Court nor in the writ petitions filed before the Court. 4. The Court opined that allowing the petitioner to file a written statement after framing the issues would be a mere formality in the peculiar facts and circumstances of the case.
Issues: 1. Whether the proceedings initiated on the basis of a certificate issued before the prescribed period under Rule 12A of the West Bengal Industrial Disputes Rules, 1958, are maintainable? 2. Whether the Labour Court should have provided an opportunity to the petitioner to file a written statement after framing the issues?
Ratio Decidendi: 1. The Court relied on the Division Bench judgment in Ludlow Jute and Specialities Limited & Another -vs- State of West Bengal & Another, which held that the provisions of Rule 12A of the West Bengal Industrial Disputes Rules, 1958, are directory in nature and not mandatory. 2. The Court found that the petitioner did not raise the plea of non-grant of an opportunity to file a written statement after framing of the issues before the Labour Court or in the writ petitions filed before the Court.
Final Decision: Both the writ petitions were dismissed without any order as to costs.
The petitioner has assailed the award passed by the First Labour Court, Kolkata whereby and whereunder the order of termination was declared to be arbitrary and unjust and the petitioner was directed to pay full back wages with all consequential benefits from the date of termination till the date of superannuation in W.P. 27330 (W) of 2013.
The subject matter of W.P. 7063 (W) of 2012 is an order, no. 63 dated 20th July 2009, passed by the First Labour Court, deciding the issues numbers 1, 2 and 3 separately keeping the other issue to be decided later on.
The fact emerges from the respective pleadings is that the private respondent was issued a show cause notice as to why he should not be terminated should not be terminated from service. A domestic enquiry was conducted which culminated into dismissal of the private respondent from service. The private respondent approached Assistant Deputy Labour Commissioner, Government of West Bengal by filing a representation dated 23rd October 2000. While the matter was under consideration before the Conciliation Officer, i.e. the Assistant Deputy Labour Commissioner, an application was made on 24th November 2000 for issuance of a certificate. The Conciliation Officer, on 5th December 2000, issued the Certificate of pendency of the conciliation proceedings. An application is made before the Labour Court under Section 10 (1B) (d) of the Industrial Disputes Act. The petitioner filed a written statement in the said proceeding and subsequently submitted suggested issued before the First Labour Court, West Bengal. On the basis of the suggested issues by the respective parties the Court framed the issues. Subsequently, the Court thought that issues nos. 1, 2 and 3 should be decided in segregation to the other issue. It would be profitable to quote the issues framed by the Labour Court which are as follows:
“1. Is the application maintainable in law ?
2. Is the Certificate issued by the Conciliation Officer under Clause (a) sub-section 1(B) of Section 10, I.D.
Act in conformity with the provisions of law ?
3. Is the result of the domestic enquiry binding upon the employee ?
4. Is the employee entitled to get relief ? If so, what relief he is entitled to ?”
Simultaneously, the Labour Court directed the issues nos. 1, 2 and 3 to be taken up as preliminary issues as it relates to the point of domestic enquiry.
By order No. 63 dated 20th July 2009, the preliminary issues are decided which is the subject matter of W.P. 7063 (W) of 2012.
Subsequently the other issue was taken up and is decided in the form of a final award which is the subject matter of W.P. 27330 (W) of 2013.
Mr. Arunabha Ghosh, the learned advocate appearing for the petitioner, attacks both the orders on two fold grounds; firstly that the Conciliation Officer has issued the Certificate, under Rule 12A of the West Bengal Industrial Disputes Rules, 1958, before expiration of the prescribed period and secondly, the Labour Court, after framing the issues, should have given another opportunity to the petitioner to file written statement against such issues.
Basically, on these two grounds the order dated 20th July 2009 and the final award are sought to be assailed in these two writ petitions.
The respondent workman says that issuance of a certificate before the prescribed period, provided under Rule 12A of the West Bengal Industrial Disputes Rules, 1958, is not incurable or fatal resulting into dismissal of a proceeding before the Labour Court.
It is further submitted that the provisions, contained under Rule 12A of the said Rules, are directory in nature and not mandatory. In support of the aforesaid contention, reliance is placed upon the Division Bench judgment of this Court in the case of Ludlow Jute and Specialities Limited & Another -vs- State of West Bengal & Another, reported in 2012 (I) Labour Law Journal 567 (Cal).
It is audaciously submitted that the plea, that the Labour Court ought to have provided an opportunity to file written st
