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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SAMBUDDHA CHAKRABARTI, J.
W.W.A. Cossipore English School - Petitioner
Versus
The State of West Bengal & Others - Respondents
W.P. No. 23891 (W) of 2016 (Appellate Side)
Decided On : 08-09-2017
Industrial Dispute - Termination of Service - Industrial Disputes Act - Section 2(k), Section 15(2)(b) of the Industrial Disputes [West Bengal (Second Amendment)] Act, 1980 - The court discussed the maintainability of the reference by the Government to the Industrial Tribunal under the Industrial Disputes Act. The key legal provisions discussed were Section 2(k) of the Industrial Disputes Act, which defines industrial dispute, and Section 15(2)(b) of the Industrial Disputes [West Bengal (Second Amendment)] Act, 1980. The court emphasized the need for a demand to be made by the workman to the employer and the refusal of its remedy by the employer to constitute an industrial dispute. The court also highlighted that subsequent judgments clarified that a dispute, even if not directly raised with the employer, may still be considered fit for a reference to a tribunal or a labour court.
Fact of the Case:
The respondent no. 3, an 'Aya' at a school, was terminated from service, and the dispute was referred to the Second Industrial Tribunal for adjudication. The petitioner challenged the maintainability of the reference, arguing that the respondent no. 3 did not raise any dispute with the management of the school challenging the legality or justification of the termination. The respondent no. 3 contended that her termination was in violation of the mandatory provisions of the Act and, therefore, not sustainable. The primary point of dispute was the maintainability of the reference by the Government to the Industrial Tribunal.
Finding of the Court:
The court found that the delay in raising the dispute had been properly explained by the respondent no. 3, and the reference was maintainable. The court dismissed the writ petition, stating that the order impugned did not call for any judicial intervention.
Issues: The issues involved in the case were the maintainability of the reference by the Government to the Industrial Tribunal, the explanation for the delay in raising the dispute, and the legality and justification of the termination of service of the respondent no. 3.
Ratio Decidendi: The court emphasized the need for a demand to be made by the workman to the employer and the refusal of its remedy by the employer to constitute an industrial dispute. The court also highlighted that subsequent judgments clarified that a dispute, even if not directly raised with the employer, may still be considered fit for a reference to a tribunal or a labour court.
Final Decision: The court dismissed the writ petition, stating that the order impugned did not call for any judicial intervention.
1. The subject matter of challenge in this writ petition is order no. 93 dated June 30, 2016, passed by the learned judge, Second Industrial Tribunal, Kolkata in case no. VIII-44 of 2009. Before the Tribunal the petitioner challenged maintainability of the order of reference which was taken up for consideration along with the application for interim relief filed by the concerned workman.
2. The writ petitioner school was established in the year 1976 which is run by the Managing Committee with the help of the teaching and non-teaching staff. The respondent no. 3 was appointed on January 22, 1982, as an ‘Aya’.
3. The case of the writ petitioner is that from the very start the respondent no. 3 was negligent in her duties and made false and malicious allegations against the management of this school. By a letter dated March 29, 2004, the respondent no. 3 and others made various false allegations to the Officer-in-charge of the Cossipore Police Station. They also filed a civil suit against the Principal and Managing Committee of this school before the 2nd Civil Judge, Junior Division, Alipore.
4. Because of the way the respondent no. 3 conducted herself the petitioner issued a show-cause notice on March 8, 2004, asking her to show-cause why disciplinary action would not be taken against her for removing important documents and equipments and for lodging false complaint against the Principal. Since the respondent no. 3 did not give any reply the school decided to hold an Enquiry over the charges leveled against her and appointed two persons as Enquiry Officers. Since she did not, despite being given opportunity, file any reply an enquiry report was submitted on March 26, 2004. On the basis of that report and in terms of the relevant rules the school authority terminated the service of the respondent no. 3 with effect from April 15, 2004.
5. The petitioner goes on to allege that about 3 years thereafter the respondent no. 3 made a false and frivolous complaint before the Labour Commissioner Government of West Bengal in the year 2007 and the school also clarified its position by a letter dated April 23, 2008.
6. The Government of West Bengal by an order, dated December 9, 2009, referred the dispute to the Second Industrial Tribunal for adjudication of whether the termination of service of the respondent no. 3 by way of refusal of employment by the management of this school was justified.
7. The parties filed their respective written statements before the Tribunal and the concerned workman had also filed an application under Section 15(2)(b) of the Industrial Disputes [West Bengal (Second Amendment)] Act, 1980. Writ petitioner also herein filed a written objection against the said application wherein this school also raised objection about the maintainability of the order of reference on various grounds.
6. The Tribunal had passed an order on August 26, 2013, refusing to grant interim relief to the respondent no. 3. Against that order she filed a writ petition in this case which was disposed of by an order, dated July 17, 2014, remanding the matter to the Tribunal for a re-hearing of the application. The matter was, therefore, heard again and by the order impugned interim relief was granted to the respondent no. 3 and the reference was held maintainable.
7. The petitioner has challenged the said order with regard to the maintainability of the reference on several grounds. The school says that the financial benefits after the termination of service had been received by the respondent no. 3 without raising any objection and made a complaint before the Labour Commissioner during the pendency of the civil suit. It is the case of the petitioner against the maintainability of the reference is that the respondent no. 3 did not raise any dispute before the management of the school challenging the legality or justification of the order of termination.
8. The respondent no. 3 has contested the petition by filing an affidavit-in-opposition denyi
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