Back
IN THE HIGH COURT OF CALCUTTA
I.P. Mukerji, J.
M/s. Hindustan Engineering Industries Limited & Anr. – Petitioners
Versus
State of West Bengal & Ors. – Respondents
W.P. No. 18789 (W) of 2015
Decided On : 10-09-2015
For the Petitioner:Partha Bhanja Chowdhuri, Advocate.
A second order of reference under Section 10 of the Industrial Disputes Act, 1947, after a substantial gap of time, is not maintainable in respect of the self-same issues which were similarly referred earlier and in respect of which a "no dispute Award" was passed by the Industrial Tribunal.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 10 - SECOND ORDER OF REFERENCE - MAINTAINABILITY - SAME ISSUES - NO DISPUTE AWARD - SUBSTANTIAL GAP OF TIME - WRIT PETITION - MAINTAINABILITY
Fact of the Case:
In 1999, 25 workmen of Hindustan Engineering and Industries Limited were dismissed from service. In 2000, the disputes between the company and the workmen were referred to the Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947. In 2007, the Tribunal passed a "no dispute Award" as the parties did not appear before it. In 2009, the workmen approached the Conciliation Officer to revive the dispute. In 2012, the workmen filed a writ petition in the High Court, which directed the Government to take a decision in the matter. In 2015, the Government made a second order of reference to the Tribunal.
Finding of the Court:
The High Court held that the second order of reference was not maintainable as the dispute was dead by the passage of time. The Court relied on the Supreme Court decisions in Virendra Bhandari and Rajasthan State Road Transport Corporation & Ors. and B.R. Herman & Mohatta (India) (Pvt.) Ltd. v. The Seventh Industrial Tribunal, West Bengal & Ors., which held that a "no dispute Award" was not an award at all and the Government had the power to refer the dispute again to the Tribunal, but the power should be exercised reasonably and in a rational manner.
Issues: Whether a second order of reference under Section 10 of the Industrial Disputes Act, 1947, after a substantial gap of time, is maintainable in respect of the self-same issues which were similarly referred earlier and in respect of which a "no dispute Award" was passed by the Industrial Tribunal on account of absence of the parties?
Ratio Decidendi: The Court held that the second order of reference was not maintainable as the dispute was dead by the passage of time. The Court relied on the Supreme Court decisions in Virendra Bhandari and Rajasthan State Road Transport Corporation & Ors. and B.R. Herman & Mohatta (India) (Pvt.) Ltd. v. The Seventh Industrial Tribunal, West Bengal & Ors., which held that a "no dispute Award" was not an award at all and the Government had the power to refer the dispute again to the Tribunal, but the power should be exercised reasonably and in a rational manner.
Final Decision: The writ petition was allowed, and the second order of reference was quashed.
I.P. Mukerji, J.
1. A very substantial question is raised in this writ application. The question is: whether a second order of reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act), after a substantial gap of time, is maintainable, in respect of the self-same issues which were similarly referred earlier and in respect of which a "no dispute Award" was passed by the Industrial Tribunal on account of absence of the parties?
2. The respondent workman represents the other three workmen involved. On 29th May, 1999, 25 (twenty five) workmen of Hindustan Engineering and Industries Limited, the writ petitioners were dismissed from service on charges of staying away from work, indiscipline, dereliction of duty, subversive activities against the company and so on. This was preceded by a Charge sheet dated 27th May 1995 and an enquiry.
3. On 10th February 2000, the disputes between the writ petitioner-company and their workmen represented by Hindusthan Development Corporation Ltd., Shramik Union (Santragachi Plant) were referred under Section 10 of the said Act to the Industrial Tribunal on the following issues:
(i) Whether the dismissal of 25 (Twenty five) workmen as mentioned in the Annexures to the Order of Reference justified?
(ii) What relief, if any are the workmen entitled to?
4. Mr. Partha Bhanja Chowdhury, learned advocate appearing for the petitioners submitted that the disputes with regard to 21 (twenty one) out of 25 (twenty five) workmen were settled by a settlement arrived at between the petitioner-company and these workmen and/or the union. The referred dispute remained alive with regard to 4 (four) workmen namely Panchanan Patra, Rabin Ghosh (Rabindra Nath Ghosh), Sk. Kayum and Sk. Ismail. Learned counsel took me through the order sheets of the Tribunal dated 7th May, 2007; 8th June, 2007 and 1st August 2007, where inter-alia it was recorded that most of the workmen had settled their disputes amicably. It appears from the records that on 1st August 2007 between 11 a.m. and 12.20 p.m. the case was called on thrice before the learned Judge, when nobody appeared for the parties. On that day itself the learned Judge of the First Industrial Tribunal made and published a "no dispute Award".
5. On 22nd June 2009 the 4 (four) workmen approached the Conciliation Officer at Howrah, with regard to the self-same issue. The Conciliation officer arranged several meetings between the parties but no consensus could be arrived at.
Thereafter these 4 (four) workmen preferred a writ application in this Court (WP No. 28188(W) of 2012), where on 15th May 2014 Mr. Justice Soumen Sen directed the Government to take a decision in the matter within four weeks of communication of the order. Under those circumstances the second order of reference under Section 10 of the said Act was made on 3rd March, 2015.
The issues were identical to the one framed in the year 2000 except that they were confined to 4 (four) workmen only.
6. Now according to the petitioners the order of reference dated 3rd March 2015, should not be proceeded with. The question which necessarily arises is whether this Court could pass an order stopping the reference? First of all, I would like to state that when a dispute is not decided on merits, it is possible to make a fresh reference to the Industrial Tribunal to decide the self-same dispute at a later point of time.
7. The facts of Virendra Bhandari and Rajasthan State Road Transport Corporation & Ors. cited by learned counsel for the respondent workmen decided by the Supreme Court and reported in 2002 (94) FLR 624 are similar to the case at hand. The parties did not appear before the Industrial Tribunal. The Tribunal held that there was no dispute between the parties. But within one year, and in my opinion this period of time is very important, the Government made a fresh reference to the Tribunal and it made an Award after adjudication. The High Court found that where the Tr
