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2021 Supreme(Cal) 57
IN THE HIGH COURT AT CALCUTTA
ABHIJIT GANGOPADHYAY, J.
Webfil Ltd. – Petitioner
Versus
Dipesh Kumar Bagchi and Another – Respondents
WPA No. 6797 of 2018
Decided On : 30-06-2021
Advocate Appeared:
For the Petitioners: Mr. Soumya Majumdar, Mr. Victor Chatterjee, Mr. Ranjit Talukdar.
For the State : Mr. Susanta Pal, Mr. Ananda Dulal Sarkar.
For the Respondents: Mr. Jayanta Dasgupta, Mr. Rananeesh Guha Thakurta.
Point of Law: Terminated of employee - Workmen - Meaning of - Court not find any merit in objection of petitioner that employee was not a workman within meaning of Section 2 (S) of ID Act.
Headnote:
Industrial Disputes Act, 1947 - Section 2A (2) - Code of Civil Procedure, 1908 - Section 18 (2) - Jurisdiction of tribunal - Award - Challenged - Back wages - Benefit of - Whether there was any reasonable ground for uncertainty as to tribunal having jurisdiction to adjudicate matter when it was filed - Whether an employee is a workman within meaning of Section 2 (s) of ID Act or not is not required to be considered - Tribunal passed award in favour of employee for payment of all back wages including benefit of revised wages or salary etc also held that termination of employee by employer with effect from 31.03.2010 is not justified and employee is entitled to get reliefs as prayed for.
Finding of the Court:
Abstract of application of the employee under Section 2A (2) of ID Act was reinstatement with full back wages. Strict rules of pleadings as applicable in suits cannot be made applicable in application of a terminated workman before Industrial Tribunal - While terminating petitioner only a clause in his appointment letter was used to terminate his service and there was no domestic enquiry against employee. Such clause of termination of service by giving one month’s notice is not an acceptable situation at all in view of change of entire atmosphere of employer-employee relationship in last 60/70 years and such high-handed action of termination which fits in a feudal minded society for termination of service of a person by merely giving a notice without holding him guilty of any offence is wholly unfit in the atmosphere of a democratic country like ours where the dynamics of law is towards fairness in all actions.
Result: Writ Application dismissed.
JUDGMENT :
ABHIJIT GANGOPADHYAY, J.
1. This writ application has been filed by the employer (Webfil Limited) challenging an award dated 15.01.2018 passed by the 8th Industrial Tribunal, state of West Bengal in case No. 01/2A (2) 11 (Sri Dipesh Kumar Bagchi vs. Webfil Limited).
2. The tribunal passed the award in favour of the employee for payment of all the back wages including the benefit of revised wages or salary etc. The tribunal also held that the termination of the employee by the employer with effect from 31.03.2010 is not justified and the employee is entitled to get reliefs as prayed for.
3. This award dated 15.01.2018 has been challenged by the employer by filing the present writ application wherein the employer raised three objections. The first one is related to the jurisdiction of the tribunal and it has been submitted that the tribunal is to be held coram non-judice as it had no jurisdiction to decide the dispute raised by the employee. The second objection is, the employee is not a workman and therefore, he does not come within the purview of the Industrial Disputes Act, 1947 (ID Act, in short, hereafter) and the third contention is, the employee did not plea specifically that after termination he was not employed elsewhere and therefore back wages from the date of his termination till the date of his retirement is not required to be paid to him.
4. Referring to two notifications dated 25.07.1997 and 02.02.2012 the employer/petitioner has stated that by notification dated 2nd February, 2012 the 4th Industrial Tribunal was given jurisdiction over the territorial limits of the District Nadia where the cause of action of the dispute had arisen. But the case was filed before the 8th Industrial Tribunal (instead of 4th Tribunal) which ultimately passed the award. This defect in jurisdiction was also taken at the very inception by the petitioner but the 8th Tribunal decided that it had jurisdiction to decide the matter.
On a reading of the award I have found that the application of employee under Section 2A (2) of the ID Act was filed on 20th January, 2011 which is an admitted fact (vide paragraph No. 9 of the writ application). The notification dated 02.02.2012 was issued much after filing of the application under Section 2A (2) of the ID Act and the said notification was not given any retrospective effect.
5. The employee being the respondent No. 1 of the writ application also made similar submission as above.
6. Now, the question is whether there was any reasonable ground for uncertainty as to the tribunal having jurisdiction to adjudicate the matter when it was filed on 20.01.2011? It is to be noted that Section 2A (2) of the ID Act came in the statue book on 15.09.2010. Before coming into force of Section 2A (2) of the ID Act Government Notifications dated 7th January, 1988 and 25th July, 1997. Therefore, following the principle laid down in Section 18 (2) of the Code of Civil Procedure I hold that when the application of the employee under Section 2A (2) was filed in the 8th Industrial Tribunal there was reasonable ground for uncertainty as to the tribunal having jurisdiction to adjudicate the dispute. The interesting feature in the whole of the writ application is that nothing has been shown by the employer as to how due to adjudication of the dispute by the 8th Industrial Tribunal prejudice has been caused, if any, to the writ petitioner/employer.
7. Prejudice, as is understood in legal parlance, is harm or injury or disadvantage caused to a party. Though the writ petitioner in its written notes of arguments and also during the hearing spent a lot of words on the question of jurisdiction of 8th Tribunal it has never stated how prejudice has been caused to it due to adjudication by the 8th Tribunal and if there was any failure of justice for adjudication by the 8th Tribunal.
Did the writ petitioner lose a forum for adjudication of the dispute in any higher forum as the dispute was adjudicated by the 8th Tribunal? Was the
