Thrones (P) Ltd. v. State of West Bengal — 1980 DIGILAW 388 (CAL)

Judgment : The judgment of the Court was as follows ; The petitioner No.1, M/s. Throne's (P) Limited (hereinafter referred to as the said Company), is one registered under the Companies Act? having its Registered Office at 17, Crooked Lane, Calcutta- 16. The petitioner No.2, is the Managing Director of the said Company. In this proceeding the petitioners have impeached orders dated 25th July, 1977 and 9th January, 1978, made by the learned Judge, Fifth Industrial Tribunal, Respondent No.3, in Can No. VIII 147/74 and so also the ardor of reference made under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to as the said Act). 2. It is the case of the petitioners that apart from the Registered Office as mentioned above, the said Company had an independent department. The said department was known as Publication of Journals and was operated from 13, Ezra Mansion, Calcutta-1. It is the further case of the petitioners that the departments as mentioned above were completely separate, different and independent of each other. It is the categorical case of the petitioners that the department for publication of journals was declared permanently closed by notice dated 27th April, 1973 and such closure was effective from 30th June, 1973, and as a consequence of such closure the services of the persons employed in the said section viz. Publication of Journals were duly terminated. 3. The petitioners have stated further that the Respondent Nos. 4-6 were employed in the undertaking for publication of journals as mentioned above, which undertaking used to print and publish Journals and Periodicals. It has been contended that the services of those employees (hereinafter referred to as the said Respondents), were duly terminated in consequence of the closure as mentioned above. Such closure, it has been stated, had to be declared, because the said Publication Unit sustained heavy losses from time to time and various attempts adopted or made by the petitioners proved fruitless to resuscitate the concerned Unit. As such, it has also been stated that the closure had to be resorted to and such action was due, bona fide and legal. It is the case of the said Company that the statutory notice of closure was duly and appropriately given to the authorities concerned and all formalities for closing the Unit, were taken. 4. As such, it has also been stated that the closure had to be resorted to and such action was due, bona fide and legal. It is the case of the said Company that the statutory notice of closure was duly and appropriately given to the authorities concerned and all formalities for closing the Unit, were taken. 4. It appears that in the concerned Unit which was so closed, there were 11 persons and the services of all of them were terminated and on such termination 8 out of the said 11 employees have accepted the necessary compensation and all dues on account of such closure and thus the said Respondents were and are only interested in the pretended dispute, which was sought to be referred. The petitioners have stated that at all material times there was no Union of employees concerned and so far as the Unit as mentioned hereinafter was concerned. But thereafter, a Union by the name of Commercial Establishment Staff Union emerged in the field and made a representation to the authorities under the said Act, whereupon, such authorities requested the laid Company to participate in a purported conciliation proceeding. It is the case of the petitioners that all throughout, they took the stand that there was no industrial dispute existing or apprehended, for which any conciliation could be initiated, apart from the fact that the petitioners claimed that the Union all mentioned above, had no locus standi to espous. the cause of the laid Respondents. It was also and the specific contention of the petitioners that the closure was genuine and bona fide, which fact has of course been disputed by the Union as mentioned above, representing the said Respondents. 5. In view of the above, the said Company did not participate in the conciliation proceeding and on or about 12th July, 1974, the authorities under the said Act, made a reference of the dispute as mentioned hereinafter, for adjudication before the respondent Tribunal under section 10 of the said Act. The dispute as referred was whether the termination of services of Mrs. B. Bose and Sarbashree L.K. Banerjee and R.B. Banik from 30th June, 1973 was justified. The parties to the proceeding completed their pleadings. The dispute as referred was whether the termination of services of Mrs. B. Bose and Sarbashree L.K. Banerjee and R.B. Banik from 30th June, 1973 was justified. The parties to the proceeding completed their pleadings. In the written statement of the petitioners, apart from denying the validity or genuineness of the claim as sought to be raised on behalf of the said Respondents, the said Company raised various preliminary points regarding the maintainability of the reference and jurisdiction of the respondent Tribunal to proceed with them. It was alleged by the said Company that the order of reference as made, would, on the face of it show that there was object non-application of mind and such reference was irregular, as the closure in the instant case, was bonafide. It was also contended that since the Union as mentioned above, had no authority to espouse the cause of the said Respondents, the dispute as sought to be referred for adjudication, was not only unauthorised but the same was void, irregular and improper. Such defence was advanced, as the dispute refused wall one under section 10 and not under section 10 read with section 2A of the said Act. It was further claimed and contended that since closure was an admitted fact and there was no dispute raised on the termination of the said Respondents, either with the laid Company or at any point of time, the reference all made, was not only improper but the same has also established non-application of mind. The said Company asked for determination of the preliminary issues as raised, before hearing the matter on merits. 6. The written statement of the said Respondents was filed through the Union as mentioned above, and apart from endeavouring to sustain the claim on merits, it has been claimed that the Office of the said Company as mentioned above was an integral and indispensable part of the factory and none from the factory was retrenched and the volume of work of the said Company had not, in fact, diminished, which could justify the action of closure. The termination of services of the said Respondents have been claimed to be not bona fide and rather it has been stated that such termination was effected with ill-motive. The termination of services of the said Respondents have been claimed to be not bona fide and rather it has been stated that such termination was effected with ill-motive. The contention on behalf of the said Respondents was also that what was referred for adjudication was an industrial dispute and as such the Respondent Tribunal was duly authorised and empowered to proceed with the consideration of the same. In fact, it has been claimed that the reference has been made in due exercise of power, competence and jurisdiction. 7. The preliminary objection of the petitioners as mentioned above and more particularly such objections on the locus standi of the concerned Union to espouse the cause of that said Respondents and so also such objection in respect of the closure as pleaded by the said Company, were taken up for hearing. It appears that by an order dated 14th September, 1976, the question of locus standi was taken up for hearing as a preliminary point, while the question relating to closure as pleaded by the said Company, was directed to be taken up with the merits of the case and such direction was given on the basis of a concession made by the learned Advocate, appearing for the said Company. 8. By its order dated 25th July, 1977, the Respondent Tribunal considered the question u to whether the Commercial Establishment Staff Union as named in the order of reference, had any right or authority to espouse the cause of the said Respondents. The contentions of the said Company, before the Respondent Tribunal, as has been referred to hereinbefore, was that the Union in question has no right or locus standi to raise the dispute on behalf of the said Respondents and as such, to convert their termination of services into an industrial dispute. The Respondent Tribunal has found that what was referred, was an industrial dispute and such reference in question, was duly and appropriately made in exercise of powers of the authorities concerned. It has also been found that on the basis of the demand as made by the concerned Union, the dispute in the instant case became an industrial dispute and by virtue of the deeming provisions of section 2A, what was referred, was really an industrial dispute. It has also been found that on the basis of the demand as made by the concerned Union, the dispute in the instant case became an industrial dispute and by virtue of the deeming provisions of section 2A, what was referred, was really an industrial dispute. It is an admitted fact that while the question of locus standi was determined in the manner as mentioned hereinbefore, and in such proceeding, the learned Lawyer of the said Company, as mentioned above, agreed or conceded to have the point regarding closure, decided on merits. It has further been slated now that after such concession and on a second thought it appeared to the learned Lawyer for the said Company that as the real and basic issue between the parties was whether there was any valid and legal closure or not and on the decision of such question, depended the decision of the issues as referred to the Respondent Tribunal for adjudication, a prayer was made for such determination of the point, but by the order of 9th January, 1978, the prayer has been rejected. 9. It was the case of the said Company that 55 persons were employed in the units belonging to them and cut of which 11 employees as mentioned, were employed in the Unit, which was closed. It has also been stated that 8 out of those 11 employees have received their due compensation and other dues, out of their own volition, much prior to the date of reference and as such they neither have nor had any grievance against the said Company. The laid Company has further stated that though duly notified, the said Respondents, who are three in number, out of the eleven employees mentioned above, did neither approach them nor did they present themselves for receiving their compensation or other dues. It was further contended that the basic issues, if at all, was whether the closure was real or bona fide but the consequential issue of termination as referred for adjudication, was neither valid nor proper or appropriately referred for adjudication. The reference of the consequential issue as mentioned above, viz. It was further contended that the basic issues, if at all, was whether the closure was real or bona fide but the consequential issue of termination as referred for adjudication, was neither valid nor proper or appropriately referred for adjudication. The reference of the consequential issue as mentioned above, viz. termination of the services of the said Respondents, according to the said Company, was an attempt to by pass the real issue of closure and they have further stated that the reference in question, in the instant case, was not duly made as there was no dispute raised excepting on such issue of closure. 10. The Respondents, as appearing through Mr. Sen Gupta, by their affidavit-in-opposition, dated 5th May, 1978 filed through Shri Satin Roy Chowdhury, President of the concerned Union, have denied the validity of the statements as contained in the petition on such contentions which would be referred hereinafter. It is the categorical case of the Respondents that what was referred was an industrial dispute and such dispute was duly, categorically and validly raised. It has been claimed that the Union in question al all material limes had and still has the representative capacity and the dispute in question, was properly raised. The claim of the said petitioners that the units as mentioned above were distinct and different have been denied and in fact it has been claimed that the publication of journals was a part and parcel of the said Company's integrated business and the pretended discontinuance of journals, was only an eye wash and not at all a 'Closure' in the real sense. In any event, it has been denied that the services of the said Respondents, were duly terminated or that the termination was in consequence of the pretended closure. It has also been categorically stated that the said Respondents were employed wish the laid Company, to work both for the Press and the Journals and none of those units were closed. It has been stated that the services of the said Respondents, were not terminated in consequence of the closure and such closure was neither real nor bona fide. It has also been categorically stated that the said Respondents were employed wish the laid Company, to work both for the Press and the Journals and none of those units were closed. It has been stated that the services of the said Respondents, were not terminated in consequence of the closure and such closure was neither real nor bona fide. The said Respondents did not accept the closure compensation, as the alleged partial closure was a pretended and not a real one and furthermore as they were employed both for the Press and Journals and all the more when the press was in a running condition. It is also the case of the concerned Union that the question of the locus standi of the Union was taken up for hearing as a preliminary point and the other question of closure, as pleaded, was directed to be heard along with the merits, in terms of the agreements of the parties and as such, the petitioners are not entitled to challenge the order of the Respondent Tribunal on the issue of closure. Such attempt of the said Company has been claimed by the answering deponent, was to harass the cause of the said Respondents. It has been stated that the basic issue between the parties in the dispute, was not whether there was any valid and legal closure, but the lame was whether the termination of services of the said Respondents, was justified or not. It has been stated that the plea of closure was absolutely mala fide and there was no closure in the real sense of the term and even if the suspension or publication of the journals was real, the termination of the said Respondents, was unjustified, at they went employed to work both for the press and the journals and admittedly the Press was running. It has also been claimed that the reference as made in the instant case, was proper and with jurisdiction. 11. Such allegations and statements as mentioned in the concerned affidavit-in-opposition, have been denied by the petitioners in their affidavit-in-reply, dated 8th June, 1978. Apart from contending that the deponent of the said affidavit-in-opposition, was not authorised to affirm the same on behalf of the concerned Union. 11. Such allegations and statements as mentioned in the concerned affidavit-in-opposition, have been denied by the petitioners in their affidavit-in-reply, dated 8th June, 1978. Apart from contending that the deponent of the said affidavit-in-opposition, was not authorised to affirm the same on behalf of the concerned Union. It has also been urged that the said deponent, not having disclosed his authority or competence to affirm the affidavit, the same should not be looked into or considered. It has also been stated that the grounds as put forward now in this proceeding, were never put forward before the Respondent Tribunal and as such, such points or more particularly to allegations regard in the issue of closure, which was not in issue before the Respondent Tribunal, could not be allowed to urge or should not be looked into. It has been reiterated that the publication of journals was an independent department or undertaking of the said Company. Such independent character has also been alleged even though the laid publication of journals was made on behalf or the said Company from 13, Ezra Mansion as mentioned above. It is the categorical case of the petitioners now that the said Respondents were exclusively employed in the undertaking as mentioned above, which was finally and completely closed. It has been denied that the said Respondents were employed with the said Company for the purpose of working both at the Press and the Journals section and their services were not terminated in consequence of the closure. It has been reiterated that the closure in question was duly made after necessary and appropriate service of notice on the authorities concerned and after the expiry of the statutory period. It is the further case of the petitioners that not only the concerned Union, but also the deponent of the affidavit-in-opposition, was an outsider to the said Company and in any event, the said Union was not recognised by the petitioners. It is also the case of the petitioners that the concerned Union at all material times had no and still has no support of the workmen employed by them. It has been claimed that the closure being an accomplished fact, there was no scope for conciliation on the basis of which, the pretended order of reference was made. It is also the case of the petitioners that the concerned Union at all material times had no and still has no support of the workmen employed by them. It has been claimed that the closure being an accomplished fact, there was no scope for conciliation on the basis of which, the pretended order of reference was made. It has further been stated that the validity and legality or maintainability of the order of reference being challenged or such facts being in issue, any jurisdictional fact on the basis thereof could be raised, either before the Respondent Tribunal or in this Court, even though such jurisdictional facts were not adjudicated before the Respondent Tribunal and although there was a concession made, the particulars whereof have been mentioned hereinbefore. The petitioners have stated that they arc not bound by the concession made by the learned Advocate on points of law. 12. Mr. Banerjee appearing in support of the challenged Rule, in his usual fairness has not now challenged the locus standi of the Union, to represent or espouse the cause of the said Respondents and in fact it was submitted by him that in all fairness and if the order of reference is found to be justified and legal, the concerned Union should be allowed to participate and have the case contested, at least for natural justice and fair play. He, of course, contended that even when there was concession made by the learned Advocate appearing for the said Company before the Respondent Tribunal and on the points as mentioned hereinbefore, that would not bind the petitioners herein, to have such other preliminary points al mentioned above, agitated and adjudicated, since concession made by the learned Advocate and at least in this case, would not bind the petitioners. This, he submitted, was a jurisdictional issue and as such, could be adjudicated in this proceeding. He claimed that in case of bona fide closure, which ii the fact in this case there cannot be an industrial dispute. It was then submitted by Mr. Banerjee that the order of reference as made under section 10 of the said Act, was neither proper nor vaild or made with jurisdiction, as there was no dispute ever raised, on the termination of services of the said Respondents. Mr. It was then submitted by Mr. Banerjee that the order of reference as made under section 10 of the said Act, was neither proper nor vaild or made with jurisdiction, as there was no dispute ever raised, on the termination of services of the said Respondents. Mr. Banerjee also submitted that, referring to section 2A of the said Act for the purpose of finding the order of reference as made, to be valid, although the same was made under section 10 of the said Act, the respondent Tribunal not only acted improperly and invalidly but such reference would show a non-application of mind or mis-appreciation of fact and law. 13. In support of his submissions on the first branch of submissions, viz. that concession as made in this cane would not bind the petitioners and they are entitled to have re-adjudicated such preliminary points, on which concession was made, reference was first made to the determinations of the Privy Council in the case of (1) Maharani Beni Pershad Koeri v. Dudh Nath Roy and Ors., ILR 27 Cal. 156 which is also reported in 4 C.W.N. 274. In that case, it has been laid down that an erroneous admission by counsel, on a point of law does not bind the party. Such view also finds support from the determinations in the case of (2) Jahadali & Ors. v. Ajimannessa Bibi & Ors, AIR 1918 Cal 282 wherein it has been observed that an admission of fact by the pleader of a party is binding upon his client and the opposite party cannot be arbitrarily deprived of the benefit of the admission. In fact, the above was the second case cited by Mr. Banerjee. He next cited the determination. In the case of (3) Rajani Kanta Pal v. Hrisikesh Das & Ors, AIR 1944 Cal 391 wherein it has been observed that under the provisions of Order 3 Rule 4 of the Code of Civil Procedure, admission by a pleader on a question of law can be allowed to be withdrawn in appeal. Mr. He next cited the determination. In the case of (3) Rajani Kanta Pal v. Hrisikesh Das & Ors, AIR 1944 Cal 391 wherein it has been observed that under the provisions of Order 3 Rule 4 of the Code of Civil Procedure, admission by a pleader on a question of law can be allowed to be withdrawn in appeal. Mr. Banerjee also referred to the determination of the Privy Council in the case of (4) Society Belgede Banque S.A. v. Rai Girdhari Lal Choudhury, AIR 1940 P.C. 90 where also it has been observed that Counsel's admission of a point of law cannot be binding upon a Court and Court is not precluded from deciding the rights of the parties on a true view of the law, apart from relying on the determinations of the Supreme Court in the case of (5) Kalishankar Das and Anr. v. Dhirendra Nath & Ors, AIR 1954 SC 505 , wherein it has been observed that admission by immediate reversioner that alienation was proper, is not binding on actual reversioners, in addition to the determinations in the case of (6) Union of India v. Official Liquidator & Anr., AIR 1963 Cal 214 , where it has been observed that a right of appeal is a creature of statute and nobody has an inherent or natural right or appeal. It has also been observed there, that a party cannot appeal against the decision in his favour or in other words, no person has a right of appeal from a decision, unless his interest is adversely or prejudicially affected. In that case, it hat also been observed that an erroneous admission by a counsel on a point of law, is of no effect and does not preclude the party from claiming his legal rights in the Appellate Court. 14. From the citations as above, there is no doubt or any dispute that a concession made on points of law would not bind the client, on whose behalf such concession is made. Mr. 14. From the citations as above, there is no doubt or any dispute that a concession made on points of law would not bind the client, on whose behalf such concession is made. Mr. Sengupta, opposing the Rule, on a reference to the impugned orders, pointed out that there has been no concession made on point of law by the learned Advocate for the petitioners, before the Respondent Tribunal, as yet and in fact, there has been no determination made by the Respondent Tribunal either on merits or on points of law on such preliminary points, which are sought to be urged by Mr. Banerjee now. In fact, the preliminary point as involved now, was agreed to be adjudicated or considered by the Respondent Tribunal along with the merits of the reference. Such being the position, Mr. Sengupta was justified in contending that there has been no admission made by the learned Advocate on points of law and as such, the cases as cited at the Bar and as mentioned hereinbefore, would not be of any help or assistance. In fact, agreeing with such submissions and since I find that there has neither been any admission made on points of law nor a determination on such points, either before or by the Respondent Tribunal, the submissions of Mr. Banerjee, would be of no avail or any assistance at this stage. 15. In support or the second submissions on the validity of the order of reference that on that facts, the reference as made, was without authority and jurisdiction, Mr. Banerjee referred to the records addressed by the concerned Union and so also the notices issued by the authorities under the said Act, requesting the petitioners to attend the conciliation proceeding. He claimed that since such records would show and establish that the demand which was made, was on alleged partial closure and not on the question of termination, the order of reference, was improper and unauthorised. He stated that since the closure in the instant case was of the publication anti not the press, so the said Respondents, who are now claiming to be employed both at the press and Publication, if that is true, would not suffer any prejudice. He stated that since the closure in the instant case was of the publication anti not the press, so the said Respondents, who are now claiming to be employed both at the press and Publication, if that is true, would not suffer any prejudice. It was his categorical assertion, that such claim should not be allowed to be maintained either by the said Respondents or the Union representing them as such was not the case made out either in the proceeding before the appropriate authorities under the said Act or before the Respondent Tribunal. In fact, it was claimed by Mr. Banerjee that the laid stand, that the said Respondents were employed or entitled to serve the Press and Journal section, would not be available or should not be allowed to be agitated in view of the state of pleadings before the Respondent Tribunal. It was claimed by Mr. Banerjee that since the bona fide of the alleged partial closure was sought to be raised and such claim was not referred for adjudication, it should be presumed that the authorities under the said Act refused to make a reference on such claim and as such also, the reference on the pretended consequential relief of termination, was improper. In support of such submissions, Mr. Banerjee referred to the determinations in the case of (7) Americian Express International Banking Corporation v. Union of India and Ors, 1979 (39) F.L.R. 122. That was a case where, on self same facts a similar dispute on due adjudication, was refused to be referred to by the appropriate authorities and they subsequently reconsidered the case and made a reference. It has been observed in that case that in such circumstances, the petitioners Company in that case should have been given the necessary opportunities to establish that no industrial dispute, in fact, was existing or exited. Mr. Sen Gupta rightly contended that the case, as mentioned above, has no application in the facts of this case, as termination of service of the said Respondents as a consequence of the closure, has been claimed by the petitioners to be bona fide and which stand has been denied by the said Respondents or the Union representing them. Mr. Sen Gupta rightly contended that the case, as mentioned above, has no application in the facts of this case, as termination of service of the said Respondents as a consequence of the closure, has been claimed by the petitioners to be bona fide and which stand has been denied by the said Respondents or the Union representing them. I find and hold that since there was a claim that the alleged partial closure was not bona fide as such the consequential issue, of termination was very much in issue which could be referred for adjudication by the authorities concerned, under section 10 of the said Act and so the reference as made on the issue as mentioned above viz. termination of the services of the said Respondents, would not be unautborised, illegal or irregular as claimed. Whether the issue as referred for adjudication before the Respondent Tribunal, was or would be an industrial dispute or what was referred was not an industrial dispute in terms of the said Act would be a question of fact and law and as such, the Respondent Tribunal would be required to decide that on appropriate legal evidence. Such being the position and when admittedly the consideration of such question of law and fact has been deferred for adjudication, along with the merits of the case and that too on the concession made by the learned Advocate for the petitioners, the reference as made cannot at this stage and without such legal evidence, be held to be unauthorized or it can be found on the evidence as available that what was referred, was not an industrial dispute. 16. The Respondent Tribunal holding that the reference as made, on the question of termination of the services of the laid Respondents, without making any determination finally on the question of closure, on reference to section 2A of the said Act, was characterised by Mr. Banerjee, to be improper, irregular and illegal, apart from being without jurisdiction. Such reference to Section 2A, for finding the order of reference as made, to be valid and proper, was made by the Respondent Tribunal, as it was claimed that the dispute as referred or the dispute as was sought to be raised would not be an industrial dispute and at lease that would be individual dispute, not espoused duly. Mr. Such reference to Section 2A, for finding the order of reference as made, to be valid and proper, was made by the Respondent Tribunal, as it was claimed that the dispute as referred or the dispute as was sought to be raised would not be an industrial dispute and at lease that would be individual dispute, not espoused duly. Mr. Banerjee contended that the Tribunal is a creature of statute and the order of reference. It was his specific submissions that when the order of reference was only under section 10 and not under section 10 read with section 2A of the said Act, what was referred could not be an industrial dispute and since section 2A, was not mentioned, the Respondent Tribunal was wrong and it acted illegally or without jurisdiction in upholding the issue as referred for adjudication, on the basis of or the implication under section 2A of the said Act to be refused. To establish the above submissions, Mr. Banerjee referred to the definition of Industrial Dispute in section 2(k) of the said Act and contended that section 2 A, being an independent section, which was incorporated in the said Act with effect from 1st December 1965, by Act 35 of 1965 for the purpose of giving relief and benefits to individual workmen should not have been considered in the instant case, in terms of the observation in the case of (8) Chemicals and Fibre of India Ltd. v. V.D. Bhoir & Ors., 1975(2) LLJ 168 . It appears that in enacting the said section 2A, the intention of the Legislature was that an individual workmen, who was discharged, dismissed or retrenced or whose services were otherwise terminated, should be given relief without it being necessary for the relationship between the employer and the whole body of employees being attracted to that dispute and the dispute becoming generalised one between labour on the one hand and the employer on the other. In reply to these branches of submissions of Mr. Banerjee, Mr. Sen Gupta contended that the Respondent Tribunal, made no wrong in referring to section 2A of the said Act, since the terms of the said section could as well have been made part of section 2(k) of the said Act, instead of providing the same in a separate section. In support of such submissions, Mr. Banerjee, Mr. Sen Gupta contended that the Respondent Tribunal, made no wrong in referring to section 2A of the said Act, since the terms of the said section could as well have been made part of section 2(k) of the said Act, instead of providing the same in a separate section. In support of such submissions, Mr. Sengupta, first relied on the determinations in the case of (9) Coimbtore Co-operative Milk Supply Union Ltd. v. S. Silava Nathu, 1970(2) LLJ 101. This determination by the Madras High Court has observed that there is nothing in section 2A itself to show that it was intended to apply only to per lions dismissed or discharged or retrenched after 1st December 1965. In that case, the petitioners challenged the validity of an order of reference, made under section 10(1)(c) of the said Act. By that order, the Government stated that in their opinion an industrial dispute had arisen between the workmen and management in respect of matters as mentioned in the order of reference and it was necessary to refer such dispute for adjudication. The reference al mentioned above, was made under section 10(1)(c) of the said Act and a preliminary objection was taken before the concerned Labour Court by the Management that the reference was not valid because, according to them there was no industrial dispute existing. Such preliminary objection was overruled by the Labour Court in view of section 2A of the laid Act, which, as mentioned, was introduced by Act 35 of 1965, with effect from 1st December 1965. While making the observation as mentioned hereinbefore, the learned Judge has also observed that the point involved being a question of jurisdiction, a mere fact that the Government say that they did not mean to invoke section 2A, was immaterial and if the Court finds that the Government had jurisdiction by virtue of section 2A, it is open to the Court to sustain the reference with reference to that. The second case on which Mr. Sen Gupta placed reliance wall that of the Allahabad High Court in the case of (10) Postal Seals Industrial Co-operative Society Ltd., Aligar v. Labour Court etc. & Others, 1971 (1) LLJ. 327. In that case apart from other grounds it was claimed that the cause of the workmen was not espoused by the Union of workers. Sen Gupta placed reliance wall that of the Allahabad High Court in the case of (10) Postal Seals Industrial Co-operative Society Ltd., Aligar v. Labour Court etc. & Others, 1971 (1) LLJ. 327. In that case apart from other grounds it was claimed that the cause of the workmen was not espoused by the Union of workers. The dispute in that case was espoused by the Dhemudyong Mazdur Singh and it was claimed that such espousal changed the individual dispute into an industrial dispute. On the basis of the pleadings in that case the validity and the interpretation of section 2A was considered and it has been observed in that case, that in view of the provisions all mentioned above, it was open to the Government to refer the dispute to the Labour Court concerned ns constituted under the said Act. The dispute in that case was the termination of services of two employees of a Co-operative Society. Such dispute was referred to the Labour Court, which made an experte order. The views as expressed in the case of Coimbator Co-operative Milk Supply Union Ltd. v. Silva Mathu (supra), appears to be supported by the determination as mentioned above. The third case, on which reliance was placed by Mr. Sen Gupta was that of (11) National Asphalt products Corporations Co. v. N. M. Khotari & Ors., 1977 (2) LLJ 377. In this case, only out of 31 members paid subscriptions to the concerned Union, which espoused the cause of the employees, whose services were terminated. Such termination as mentioned above, became the subject matter of an industrial dispute before the concerned Labour Court and the Management took the preliminary objection, that since the order of reference in question does not make it clear as to whither the same was a dispute referred under section 2(k) of the laid Act or of a dispute referred in terms of section 2A of the same, the reference as made, was void and inoperative. On such objection, it was contended that in the absence of reference under section 2 (k) of the said Act or the mentioning of that provision and the absence of the same in the order of reference, would establish and show thus the reference was one of a dispute in terms of section 2A and therefore, an industrial dispute and not a dispute esousped by other workmen of the Company which incidently was a requirement of section 2(k) of the said Act. On consideration of the relevant provisions, it has been observed that whether the dispute referred in the order of reference was an industrial dispute within the meaning of section 2(k) or section 2A of the said Act, was of no consequence. So far as the Labour Court to adjudicate the same, was concerned, it has also been observed that so long aw the dispute was one arising out of the termination of services of an employee in the one of the various manners, it would constitute an industrial dispute capable of being referred for adjudication under section 10 of the said Act. In addition to the cases as cited above, Mr. Sengupta referred to the Bench decision of the Madhya Pradesh High Court in the case of (12) The Management of Katkona Colliery Western Coalfields Ltd. v. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Jabalpur & Ors. 1978 L.A.B.I.C. 1531. In that case, it was contended by the petitioners that the workmen did not make any demand on the management before the reference of the industrial dispute was made by the Central Government and, in the absence of any demand, made on the Management, there could be no industrial dispute, which could be referred by the Government. It was also argued on the same context, as appears from the report that the Madhya Pradesh Koyla Mazdoor Panchayat, which tock up the dispute on behalf of the workmen, had very few members in the petitioner's Colliery and, therefore, it cannot be said that the dispute was sponsored by sufficient number of workmen, to make the same an industrial dispute until the same was espoused and sponsored by sufficient number of workmen, to make the same an industrial dispute. Such submissions ware found to be baseless on the findings that before introduction of S. 2A by Amending Act No. 35 of 1965, the law was that when the dispute related to a single workman it could not be an industrial dispute until it was espoused by a sufficient number of workmen making it a common cause with the aggrieved individual workmen. It was in that context necessary that before an individual dispute could be treated as industrial dispute it should be espoused by a sufficient number of workmen who should make a demand on the Management to convey that they have taken up the dispute of the individual workman and by that Act have made it an industrial dispute. A workman whose dispute was not so espoused by a substantial number of workmen had no remedy. It was to obviate this difficulty that S. 2A was inserted. This section says that "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute of an individual workman, any difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment, or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute", The effect of S. 2A is that an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated can be given relief without its being necessary for the relationship between the employer and the whole body of employees being attracted to that dispute and the dispute becoming a generalised one between labour on the one hand and the employer on the other, and an individual dispute relating to discharge, dismissal, retrenchment or termination of a workman arises immediately the workman is discharged, dismissed, retrenched or terminated without his consent or in face of his opposition. This individual dispute became of the legislative fiat contained in section 2A becomes an industrial dispute. It is not necessary in such cases to make a demand on the Management for making the dispute an industrial dispute. Nor it is now necessary that such a dispute should be sponsored by the Trade Union or a substantial number of workmen. This individual dispute became of the legislative fiat contained in section 2A becomes an industrial dispute. It is not necessary in such cases to make a demand on the Management for making the dispute an industrial dispute. Nor it is now necessary that such a dispute should be sponsored by the Trade Union or a substantial number of workmen. It has ultimately been found in that case that since the workmen were dismissed in face of their opposition in the domestic enquiry that itself would establish and show that there was a dispute between them and the management in respect of their dismissal and there was an industrial dispute in existence, within the meaning of section 2A, when the reference was made and also on the observations in the case of Management of (13) M/s Heavy Engineering Corporation Ltd., v. The Presiding Officer & Ors., (1978) 2 S.C.C. 44 , to the effect that on section 2A would be applicable even though the dispute arose before the same was inserted. The above observations have been made on the basis of the determinations in the case of (14) Rustom & Hornsby (I) Ltd. v. T. B. Kadam, AIR 1975 SC 2025 and Mr. Sengupta also referred to the said determination. In the case as cited above, it has been observed that the only relevant factor for consideration in making Ii reference under section 10 is whether an industrial dispute exists or is apprehended. Where on the day the reference under section 10 read with section 2A was made an industrial dispute as defined under section 2A did exist, the fact that the facts giving rise to the dispute, falling under section 2A arose before that section came into force would not make the reference invalid. There is no question of giving retrospective effect to section 2A. Section 2A is a definition section and when it uses the words "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman" it does not deal with the question as to when that was done. It refers to a situation or a state of affairs. 17. Section 2A is a definition section and when it uses the words "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman" it does not deal with the question as to when that was done. It refers to a situation or a state of affairs. 17. From the case as cited at the Bar, it thus appears that section 2A was incorporated with the object that an individual, who was either discharged or dismissed or retrenched or whose services were otherwise terminated, should gel relief, even the dispute in respect of the action taken against him by his employer, could not be raised or espoused in the earlier conventional ways of raising the dispute and the said section thus appears to be a deeming provision, which could have been made part of section 2 (k) itself, which defines Industrial dispute. The above view, I have taken, as it appears to me that section 2A was incorporated for applying in cases of individual, who is dismissed or discharged of retrenched after the date of incorporation viz. 1st December, 1965. Thus, since in this case, reference was made on the issue of termination of services of the said employees, the non-mentioning of section 2A in the order of Reference, could not be fatal or a bar for the Respondent Tribunal, to take the provisions of that section into consideration. As such, I hold that the Respondent Tribunal has not done any wrong in referring to the provisions of section 2A for upholding the order of Reference. In fact, similar view has also been taken by Amiya Kumar Mookerjee, J, in the unreported decision dated 14th March, 1979, in the case of (15) Steel Rolling Mills of Bengal Ltd. v. The Fifth Industrial Tribunal & Ors., (Civil Rule No. 115 (w) of 1979). I further find that after the incorporation of section 2A, the requirements earlier necessary, for espousing a dispute, have lost relevance and importance. If the Government retains jurisdiction to refer a dispute in terms of section 2A, the order of Reference can be sustained if the same mentions only section 10 and not section 2A, in the facts of this case. 18. If the Government retains jurisdiction to refer a dispute in terms of section 2A, the order of Reference can be sustained if the same mentions only section 10 and not section 2A, in the facts of this case. 18. It should be noted that the concession by the learned Advocate in this case viz., the point regarding closure, would be considered along with the merits, on 14th September, 1973 in a Reference dated 12th July, 1974 arising out of the termination of services of the Respondents on 30th January, 1973. The only preliminary point as urged and as mentioned hereinbefore, was rejected by the Respondent Tribunal on 25th July 1977 and thereafter the petitioners filed the petition for hearing of the preliminary issues on closure on 23rd December, 1977 which has been rejected by the order dated 9th January, 1978. The above facts are admitted. On these admitted facts, Mr. Sengupta, characterised the action of the petitioners to be not bona fide and intended to frustrate the clause of the said Respondents and to harass them. Since I am of the view that a party would not be bound by any concession on point of law by his representative, but concession on facts and procedure would be binding, I hold that there are great substance in the submissions of Mr. Sengupta, that in the facts of the case, the petitioners were and are bound by the concession made by their learned Advocate and as such, I also find that perhaps the steps taken by the said Company were intended to frustrate and delay the proceeding before the Respondent Tribunal. In this case, there was no concession by the learned Advocate concerned either on facts or on law. He had just agreed to a procedure to be followed which again the said Tribunal could decide for itself in terms of section 11 of the said Act, and as such, the concession as made, would bind the petitioners. If it is found that parties would not be bound by the concessions made by their representatives either on facts or procedure, the result would be disastrous and no Court or authority would be safe, as after making such concessions, the orders as obtained on such concessions, would be challenged in many cases. If it is found that parties would not be bound by the concessions made by their representatives either on facts or procedure, the result would be disastrous and no Court or authority would be safe, as after making such concessions, the orders as obtained on such concessions, would be challenged in many cases. It must also be noted that apart from the cases as mentioned above, on the effect of concessions by a learned Advocate. Mr. Bancrjee also referred to the determinations in the case of (16) Khodadad Rustom Ivasi v. Property Company (Private) Ltd. & Ors., 1980(1) CHN 483 and submissions on that case were further heard. In fact, on 16th September, 1980, when the matter was not in the list, Mr. Banerjee mentioned the case and Mr. Senaupta made his submissions on 17th September 1980. The case, as contended by Mr. Sengupta, is clearly distinguishable on the facts of this case. 19. It was then contended by Mr. Sengupta that the nature and scope of enquiry of this Tribunal in a reference under section 10(1) being limited and Industrial Tribunal can only enquire into the existence of some materials on which power was exercised, no interference should also be made at this stage, and more particularly when the Respondent Tribunal has yet to decide the issue as to whether, what, has been referred in an Industrial Dispute or not. In support of his submissions Mr. Sengupta referred to the determinations of the Supreme Court in the case of (17) Shambu Nath Goyal v. Bank of Baroda, 1978 (2) S.C. C. 353. In that case, it has been observed that the power conferred by section 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. It is an administrative decision and the Court cannot therefore, canvass the order of reference closely to see if there was any materials before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. It is an administrative decision and the Court cannot therefore, canvass the order of reference closely to see if there was any materials before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. The factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want or jurisdiction merely because in its opinion there was no material before the Government on which it could have came to an affirmative conclusion of those matters, apart from holding that the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C.P. Sartyy's case. It would be open to the party impugning the reference (to contend) that there was no material before the Government, and it would be open to the Tribunal to examine the question but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government. In addition to the above, reference was also made by Mr. Sengupta to the case of (18) M/s. Avon Services Production Agencies (P) Ltd. v. Industries Tribunal, Haryana & Ors, AIR 1979 SC 170 , for establishing that power to make a reference under section 10(1) of the said Act is discretionary and administrative in character and this when the authorities have come to the conclusion that an Industrial Dispute Court existed or apprehended, for the purpose of making the Reference, the adequacy or sufficiency of materials for forming such opinion, cannot be looked into and in fact, they are not justifiable. It is true that the scope and power of interference in the Reference under section 10 of the said Act, is very limited and since no determination as yet been made as to what was referred was not an Industrial Dispute and such stage has not yet reached before the Respondent Tribunal, it would not be proper for this Court to interfere in this jurisdiction. 20. 20. I find that whether the said Respondents were employed in the factory or office or at both the places, will have to be decided on the pleadings before the Respondent Tribunal and as such also no final determination can be made at this stage and that too when there are claims and counter claims on that issue. I also hold that the preliminary issue on closure, as sought to be argued, can very well be taken up and urged after the award is made and till then, it will not be proper for this Court to make any Interference, following the determinations of the Supreme Court in the case of (19) The Cooper Engineering Ltd. v. P. P. Mundle, AIR 1975 SC 1900 . It must also be noted that reference was also made at the Bar, to the determinations in the case of (20) Management of Express Newspapers (Print) Ltd., Madras v. The Workers & Ors., AIR 1968 SC 589. In that case also the question which arose for considerations was if the employer can move High Court at the initial stage of proceeding before the Industrial Tribunal, regarding jurisdiction of the same, when the contention was raised that there was no industrial dispute raised in respect of closure and it has been observed that normally, such question must be left for decision of the Tribunal, at the first instance. The above being the state of law and there having no determination on the point as yet, by the Respondent, and since the entire matter has been agree to be considered along with the merits, I think, this Court should not interfere at this stage and more particularly when, there has been no admission or concession on point of law and that such concession or admission was made, only in respect of procedure and not even on fact. 21. The above being the position, I think this application should fail and I order accordingly. The Rule is thus discharged. There will be no order as to costs. Stay or operation of the order as prayed for is refused.