IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present:

The Hon’ble Justice Shampa Dutt (Paul)

WPA 2477 of 2012 M/s. Braithwaite & Co. Limited Vs.

Second Industrial Tribunal & Ors.

For the Petitioner : Mr. Ranajay De, Sr. Adv.

Mr. Basabjit Banerjee, Mr. Adityajit Abel Bose.

For the State/Respondents : Mr. Bipin Ghosh.

Hearing concluded on : 04.03.2025 Judgment on : 09.04.2025 Shampa Dutt (Paul), J.:

1. The present writ petition has been preferred praying for setting aside of the orders dated 10.11.2010 and 18.02.2011 passed by the learned Judge, 2^nd Industrial Tribunal, Kolkata.

2. It is the case of the petitioner herein that the petitioner company was taken over by the Government of India by virtue of the Braithwaite & Company (India) Limited (Acquisition & Transfer of Undertaking) Act, 1976. In terms of Section 12(1) of the Nationalization Act all the workmen within the definition of Industrial Disputes Act, 1947 immediately before the appointed day of the company became the employees of the Central Government on or from the appointed day [1^st April, 1975].

3. It is the case of the petitioner that although in respect of the petitioner company Government of India is the ‘appropriate Government’ the respondent Union raised an alleged industrial dispute regarding the punishment imposed by the petitioner company and ultimately by virtue of an Order of Reference dated 05.02.2008, the State Government made a reference to the respondent Tribunal for adjudication.

4. An application under Section 11 of the Industrial Disputes Act, 1947 read with first proviso to sub-rule (2) of Rule 20H of the West Bengal Industrial Disputes Rules, 1958 was filed with a prayer to take up the preliminary point raised in that application pertaining to maintainability of the reference.

5. By an order no. 147 dated 10.11.2010 the respondent Tribunal was pleased to reject the prayer.

6. A prayer for review was made by the petitioner against the said order which was again rejected by the Tribunal and the Tribunal was pleased to confirm its earlier order dated 10.11.2010.

7. The petitioner’s case is based on the following three points:-

i) In terms of the provisions of Section 12(1) of the said Nationalization Act all workmen under section 2(s) of the Industrial Disputes Act, 1947 have become the employees of the Central Government on and from 01.04.1975, the appointed date.

ii) Since by virtue of the Nationalization Act, the company under reference has become a Government of India undertaking and there is total conferment of power by the said Act, the submissions of the management are fully fortified by the Constitutional Bench’s decisions reported in 2001 ASCW 3574 [Steel Authority of India Ltd. vs. National Union of Waterfront Workers].

iii) The Notification dated 03.07.1998 was issued in view of the judgment of the Hon’ble Apex Court in Air India Statutory Corporation vs. Union. The said judgment has been over-ruled by the Hon’ble Constitutional Bench of the Apex Court (Steel Authority of India Limited & Ors. vs. National Union Waterfront Workers & Ors. (Supra)). In view of the Constitution Bench’s decision, the Notification dated 03.07.1998 has become infructuous.

8. The Second Industrial Tribunal, West Bengal in its order dated

10.11.2010 held as follows:-

“The Notification so issued by the Govt. of India is a product of wise view expressed by the legislature by declaring that the things done or omitted to be done before such rescission should not stand in the way. The Notification dated 05.05.08 is clear enough to understand that this Notification although rescinded earlier Notification dated 3^rd July, 1998 but the acts done or omitted to be done following this Notification after the publication of notification dated

3^rd July, 1998 till the Notification dated 05.5.08 cannot be discarded as there is no retrospective effect given by this Notification dated 05.5.08.

Having considered the pros and cons of this matter, in the light of the subm