Judgment In this writ proceeding order No. 33 dated August 18, 1995 passed by the Third Industrial Tribunal in reference case No. VIII 27/92 in connection with an application made by the writ petitioner (hereinafter referred to as the workman) under section 15(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) is under challenge. 2. By the order under challenge the tribunal dismissed the application of the workman under Section 15(2)(b) of the Act on two grounds. The first ground is that the reference made by Government of West Bengal prima facie appears to be not sustainable and the second ground is that as a matter of right the workman cannot get order of interim relief and in the facts and circumstances of the case the workman was not entitled to get any such order for interim relief. 3. The workman was employed in M/s. Indian Express Newspaper (Bombay) Pvt. Ltd. The employer is having its regional office at 10, Chowringhee Road, Calcutta-13. The petitioner was transferred to Calcutta but he was under the control of Bombay Office. By an order dated 1st August, 1988, the workman was transferred to Bombay Office with effect from 5th August, 1988. However, the workman did not carry out the said order of transfer. By a letter dated 22nd November, 1988 the petitioner was asked to show cause as to why he should not be dismissed from company's service. The show cause notice is quoted herein-below:- "Mr. B.G. Sampat, S/O Goutam Das Dwaraka Das Sampat, 7/1/A, Mansatala Lane, Calcutta-700 023 It has come to our notice that the 11th Metropolitan Magistrate, Calcutta in Case No. TR/668/TR/364 of 1988 has found you & other 14 persons guilty of ambling in a public street viz. in front of the premises No. 16, India Exchange Place at about 13.30 hrs. on 4.8.88 when the police seized from you & others, cash Rs.2,96,385/- dot pen, papers & other articles & arrested you & others on the said date & time. As you & all others pleaded guilty of the charge all of you were convicted by the said Magistrate & sentenced to pay a fine of Rs.150/- each & in default to simple imprisonment of 30 days each. By the said order dated 5.8.88 the Magistrate ordered the seizure of money & Anamat to be confiscated to the State. As you & all others pleaded guilty of the charge all of you were convicted by the said Magistrate & sentenced to pay a fine of Rs.150/- each & in default to simple imprisonment of 30 days each. By the said order dated 5.8.88 the Magistrate ordered the seizure of money & Anamat to be confiscated to the State. A true photo copy of the said order dated 5.8.88 of the Magistrate is attached for your perusal. Your indulgence in gambling in a public street for which you have been convicted based on your own evidence has rendered you unworthy of being continued in employment as your said conduct adversely affects the reputation of our company. You are hereby called upon to show cause within three days as to why you should not be dismissed from company's service. Your explanation should be submitted to the undersigned within three days from the date of receipt of this show cause notice. For INDIAN EXPRESS NEWSPAPERS (B) PVT. LTD. AUTHORISED SIGNATORY CC : Editor-F.E. – Bombay CC : News Editor - F.E. – Bombay CC : Regl. Mgr. - Calcutta. 4. By a letter dated 6th November, 1989 the workman was informed that the employer proposed to hold an enquiry at Bombay on 15.11.89 at 230 p.m. for failure of the workman to report for duty at the employers Bombay Office pursuant to the transfer order dated 1.8.88 and conviction of the workman owing to his negligence in gambling in public street. The relevant portion of the letter is quoted herein-below:- "Mr. B.G. Sampat. 7/1A. Mansatala Lane. Ground Floor, Kidderpore, Calcutta-700 023 Dear Sir, Your letter dated 5th October, 1989 addressed to our Managing Director has been received by us. Earlier we had also received your written reply dated 29.11.88 to the Show Cause Notice dated 22.11.88 issued to you. It is proposed to hold an enquiry at Bombay on Wednesday, 15.11.1989 at 2.30 p.m. for your failure to report for duty at our Bombay Office pursuant to the Transfer order dated 1.8.88 issued to you and your conviction owing to your negligence in gambling in a public street in front of the premises No. 16, India Exchange Place, Calcutta at about 13.30 hrs. on 4.8.88 vide Show Cause Latter dated 22.11.88 issued to you. The enquiry will be held in our office at the above address. on 4.8.88 vide Show Cause Latter dated 22.11.88 issued to you. The enquiry will be held in our office at the above address. You are required to attend the enquiry on the aforesaid date and time. At the enquiry you will be given an opportunity to cross-examine witness in support of the charges and also to examine your witnesses if any in your defence. Yours faithfully, For Indian Express Newspapers (B) Pvt. Ltd. Authorized Signatory." 5. It is significant to note here that in the show cause notice dated 22.11.88, there was no whisper about the workman's failure to report for duty at Bombay Office pursuant to the transfer order. It is also important to note here that no charge was ever framed against the workman regarding failure to report for duty at Bombay Office pursuant to the transfer order dated 1.8.88. By the letter dated 6th November, 1989, the workman was informed that an enquiry will be held against him for (1) workman's failure to report for duty at Bombay Office pursuant to the transfer order dated 11.8.88 and (2) workman's conviction owing to workman's negligence in gambling in public street. 6. By a letter dated 28th September, 1990 the workman was communicated that the charges against the workman had been fully established and it was proposed that service of the workman should be terminated by way of discharge as required under the provision of Standing Order 14(1). This letter dated 28th September, 1990 is quoted herein-below for proper understanding:- "Mr. B.G. Sampat, 7/ 1A, Mansatala Lane, Ground Floor Kidderpore, Calcutta 700 023 This has reference to the charge sheet dated 6.11.1989 issued to you and the subsequent enquiry held into the changes contained in the said charge sheet on 18.1.90, 26.2.90 & 2.4.90. Even though fair and reasonable opportunities were given to you to attend the enquiry, was failed to do so and therefore, the enquiry was finally held in your absence. The Enquiry Officer in his findings dated 23.7.90 has found you guilty of the charges contained in the said charge sheet. The Enquiry Officer has inter alia held that the Order of Transfer dated 1.8.1988 issued to you transferring you back to Bombay from Calcutta is consistent with the terms of your employment and your failure to comply with the said Order of Transfer is in break of your terms of employment. The Enquiry Officer has inter alia held that the Order of Transfer dated 1.8.1988 issued to you transferring you back to Bombay from Calcutta is consistent with the terms of your employment and your failure to comply with the said Order of Transfer is in break of your terms of employment. The second charge against you is that you were convicted on your being caught gambling in a public street along with others in front of the premises No. 16, India Exchange Place, Calcutta, at about 13.30 hrs. on 4.8.88 and the order of conviction has been passed by the Magistrate on yours as well as others pleading guilty. You are, therefore, held by the Enquiry Officer to be guilty of both the charges. As the said charges which stand fully established against you amount to disobedience of lawful and reasonable orders issued to you and also an act subversive/discipline the undersigned by the order dated 25.7.1990 proposed that your services be terminated by way of discharge and as required under the proviso of the Standing Order 14(1) requested the Editor to let him have his views after going through the complete record of enquiry and findings of the Enquiry Officer the Resident Editor Dr. Y.C. Halan has agreed with the finding and the recommendations in impose the aforesaid punishment of termination of service by way of discharge for the said proved acts of misconduct against you and this final opportunity is given to you to show cause why the proposed punishment should not be meted out to you. You are required to submit your explanation, if any within one week from the date of receipt of this letter, failing which the proposed punishment shall take effect immediately on the expiry of the said period. Copies of the complete Record of Enquiry, the findings of the Enquiry Officer, order dated 25.7.90 of the Authorised Signatory and the views expressed by Dr. Y.C. Halan are attached for your perusal and record. for Indian Express Newspapers (B) Pvt. Ltd. Encls: a.a. Authorised Signatory" 7. Copies of the complete Record of Enquiry, the findings of the Enquiry Officer, order dated 25.7.90 of the Authorised Signatory and the views expressed by Dr. Y.C. Halan are attached for your perusal and record. for Indian Express Newspapers (B) Pvt. Ltd. Encls: a.a. Authorised Signatory" 7. From this letter dated 28th September, 1990 it is significant to note that failure of the workman to report to Bombay Office pursuant to the transfer order was considered as the first charge and the workman's conviction in connection with the gambling case was considered as the second charge and the workman was found guilty of both the charges and it was proposed that the service of the workman should be terminated by way of discharge which is a punishment. 8. By letter dated 9th November, 1990, the workman's service was terminated by way of discharge with immediate effect. The said order was addressed to the workman at Calcutta and in the said letter it was, inter alia, stated as follows:- "Company's letter dated 6th November, 1989 clearly stipulates the charges levelled against you. Therefore, the said letter is not only the charge sheet but charge sheet-cum-enquiry letter and the said letter does not show any predetermined motive to terminate your service as falsely alleged by you." 9. Since the merit of the order of termination is not a subject-matter of the writ proceeding, I am not making any comment whatsoever regarding the merit of the order of termination. The point is absolutely kept open and the competent tribunal shall determine the matter on the basis of evidence which may be produced before it. 10. Under Section 2A of the Act, any dispute or difference between a workman and his employer connected with or arising out of termination of service or discharge of such workman is deemed to be an industrial dispute. In the instant case, the workman raised a dispute in connection with termination of his service by way of discharge by the employer. Therefore, undoubtedly there was an industrial dispute between the workman and his employer as defined under Section 2A of the Act. 11. Section 10(1) of the Act, empowers the "appropriate Government" to refer such industrial dispute to a tribunal for adjudication. Section 2 of the Act has defined the term "appropriate Government". Therefore, undoubtedly there was an industrial dispute between the workman and his employer as defined under Section 2A of the Act. 11. Section 10(1) of the Act, empowers the "appropriate Government" to refer such industrial dispute to a tribunal for adjudication. Section 2 of the Act has defined the term "appropriate Government". Admittedly, in the facts and circumstances of the present case, Section 2(a)(1) of the Act has no manner of application admittedly Central Government is not the appropriate Government for the purpose of this case. Therefore, the State Government is the appropriate Government as defined under Section 2(a)(ii) of the Act. 12. In the instant case, Government of West Bengal had referred the industrial dispute to the Third industrial Tribunal, West Bengal, for adjudication of the following issues:- "Whether the dismissal of Sri B.G. Sampat is justified ? To what relief, if any, is he entitled ?" Therefore, the real question which falls for determination is, whether Government of West Bengal is the appropriate Government in the facts and circumstances of the present case. This question has to be decided on the unchallenged admitted fact recorded by the tribunal. The tribunal recorded as follows:- "The relevant evidence as quoted above clearly shows that the office of the company to which the concerned workman was attached was situated at Bombay. Although he was working in Calcutta but he was drawing his pay and allowance from the Bombay Office and his name was also in the roll of staff of Bombay Office and was maintained there." "In this connection I like to point out here that at the relevant time, that is to say, which the service of the concerned workman was terminated he was working at Calcutta but his name was on the roll of employees of Bombay Office after he was transferred from his Calcutta Office and that as he did not join his Bombay Office on transfer." 13. It is now well settled that the termination of service takes effect when the termination order is served upon the concerned workman. There is a difference between communication of transfer order or interim suspension order pending disciplinary proceeding and that of termination order. In case of such interim suspension or transfer of a workman, the relationship between master and servant does not cease. There is a difference between communication of transfer order or interim suspension order pending disciplinary proceeding and that of termination order. In case of such interim suspension or transfer of a workman, the relationship between master and servant does not cease. In such cases communication of such suspension order or transfer order takes effect when such order is sent out for service because after it is seat out the employer has no control over such order. But termination or service means ceasation of relationship between master and servant. Ceasation of relationship between master and servant requires Service of Termination Order upon the servant concerned. So long the termination order is not served upon the concerned servant the relationship between master and servant does not cease. In the instant case, there is no allegation that the workman by staying at Calcutta was avoiding service of termination order. It is also not the case that the workman, by any other means had the prior knowledge of his termination of service by way of discharge. Admittedly, in the instant case, the termination order was served upon the workman at Calcutta. Therefore, the termination order became effective only after service upon the workman at Calcutta the workman was adversely affected only when the termination order became effective and he raised dispute in connection with the said termination order at Calcutta. 14. The Division Bench of this High Court in (1) Umasankar Chatterjee v. Union of India & Ors., reported at 86 CWN 348, at Paragraph 12, inter alia, observed as follows:- “In the case of an order of reversion or suspension, when it goes out of the control of the authority concerned that is to say when it is dispatched to the Government servant, either by post or by messenger, it becomes effective not only on the authority concerned to the sense that the order cannot be changed or modified, but also on the Government servant sought to be bound by it. This principle in not however applicable in the case of an order of dismissal in view of the consequences as pointed out in Amar Singh's case(supra). This principle in not however applicable in the case of an order of dismissal in view of the consequences as pointed out in Amar Singh's case(supra). When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him. This we think was all that was meant by Untewalia, J., in the above observation in Balbir Singh's case. In view of the principles aforesaid, we hold that in the instant case the impugned order of removal became effective when the same was received by the appellant through post in Calcutta, be having no prior knowledge of the same by any other means." The view expressed by me hereinabove is supported by the above quoted observation of the Division Bench of this High Court. 15. Question is, whether industrial dispute arose in Calcutta within the jurisdiction of Government of West Bengal ? It goes without saying that a workman is concerned with his termination or discharge from service only when such order of termination or discharge is served upon him ceasing the relationship between master and servant. I am of the view that the moment, the order of termination or discharge was served upon workman, the workman was entitled to raise dispute in connection with such termination or discharge. In the instant case, the order of termination or discharge was served upon the workmen at Calcutta and the workman raised the dispute at Calcutta. The workman was at liberty to raise the dispute at Calcutta because he suffered the penal consequences at Calcutta. The workman chose to raise the dispute at Calcutta. The fact that the workman was (a) under the control of the Bombay Office, (b) in the pay roll of the Bombay Office and (c) transferred to the Bombay Office, will not change the situation. It cannot be denied that integral part of the industrial dispute as contemplated in Section 2A of the Act arose at, Calcutta. 16. The Act has not laid down any criteria for determining the "appropriate Government", the Act has only defined the term. When a question arise regarding who of the State Governments is the "appropriate Government". It cannot be denied that integral part of the industrial dispute as contemplated in Section 2A of the Act arose at, Calcutta. 16. The Act has not laid down any criteria for determining the "appropriate Government", the Act has only defined the term. When a question arise regarding who of the State Governments is the "appropriate Government". In my opinion, such question should be answered after taking into consideration the facts and circumstances involved in each case. No strait-jacket formula can be laid down or followed. For determination of the question very many factors are to be taken into consideration. Situs of employment is one of such factors but not the only factor. Another factor is the place where the workman has been served with the order of termination or discharge as penal measure. This place may not be situs of employment but he suffered the penal consequences at that place and he can legitimately raise industrial dispute as contemplated under Section 2A of the Act in that place and in that event the Government of that place shall be the "appropriate Government" who can under Section 10 read with Section 2A of the Act refer the industrial dispute to the tribunal. Industrial dispute relation to termination of service of a workman as penal measure is qualitatively different from the industrial dispute relating to other matters. 17. At Calcutta, the workman suffered ceasation of relationship between master and servant. At Calcutta, the order of termination or discharge was served upon him. At Calcutta, the workman has suffered penal consequences due to discharge from service as a measure of penalty. At Calcutta, the workman raised the dispute. Therefore in my view, Government of West Bengal was the appropriate Government to refer the industrial dispute to the third Industrial Tribunal. 18. For the reasons stated above I am of the view that the Government of West Bengal acted wholly within its power, authority and jurisdiction by taking cognizance of the industrial dispute raised by the workman and referring the said industrial dispute to the Third Industrial Tribunal for adjudication. I, therefore, set aside the findings of the tribunal that the reference, prima facie, appears to be not sustainable. 19. Section 15(2)(b) of the Act as amended by the West Bengal Industrial Disputes (2nd Amendment) Act, 1980 reads as follows:- "15(2). I, therefore, set aside the findings of the tribunal that the reference, prima facie, appears to be not sustainable. 19. Section 15(2)(b) of the Act as amended by the West Bengal Industrial Disputes (2nd Amendment) Act, 1980 reads as follows:- "15(2). Where an industrial dispute has been referred to a labour Court or tribunal, it shall (a) after filing of state meats and taking of evidence give day today hearing and give its award, upon determination or decision in the manner specified in Section 17B without any delay; (b) upon hearing the parties to the dispute determine within a period of 60 days from the date of reference under sub-section (1) of Section 10 or within such shorter period as specified in the order of reference under sub-section (1) of Section 10 the quantum of interim relief admissible, if any; Provided that the quantum of interim relief relating to discharge, dismissal, retrenchment or termination of service or workman shall he equivalent or subsistence allowance as may be admissible under the West Bengal Payment of Subsistence Allowance Act, 1969." 20. This provision had been considered by a Division Bench of this High Court in (2) Vishan Roy v. Bayer (India) Limited reported in 1993 (2) CHN 383 . In that case the Division Bench held, inter alia, as follows:- "Accordingly applying the rules of interpretation laid down by the Supreme Court we must hold that within the scope of Section 15(2)(b) of the said Act, tribunal had no option but to decide the quantum straight way in case of discharge, dismissal, retrenchment or termination of service in accordance with provision laid down in the provision thereto but only exception is that such interim relief could not be given on the fact of it if it transpires that the dispute was not maintainable or in view of the petitioner of the dispute there was no scope for any interim relief. There may be cases where such interim relief is not admissible. The monetary relief is admissible only in cases where the dispute if decided in favour of the workman, the monetary benefits could be obtained as in the case of dismissal, discharge or retrench meat or termination of service or in similar other cases. Such relief could not be given in case where the workman remained employed and earned his livelihood because of such employment. Such relief could not be given in case where the workman remained employed and earned his livelihood because of such employment. In such cases it would not be maintainable on the question of fact of grant or refusal on the employer or employee is concerned. In this case an employee whose service has been terminated and who remained unemployed in our view was entitled to get interim relief for his subsistence. In our view, language of the section does not permit to interpret that the provision of Section 15(2)(b) could only be invoked in a case where the workman concerned was unemployed and could not maintain himself as there was no other condition precedent was imposed under the law. The tribunal has been given liberty to fix the quantum of the interim relief admissible but in case of retrenchment no discretion is left to the tribunal regarding fixing the quantum which has to be fixed in accordance with the principles laid down in the proviso." The said Section 15(2)(b) of the Act was again considered by another Division Bench of this High Court in (3) Webel Nicco Electronics Limited v. Mrs. Anima Roy reported at 1997 (1) CLJ 310 . In that case the said Division Bench differed from the view expressed in Ganges Printing case (supra) the question has been referred to a larger bench. Under these circumstances though I am inclined to follow the decision in Webel Nicco Electronics Limited case (supra), I refrain from deciding the legality or otherwise of the tribunals findings regarding the claim of the workman for interim relief as a matter of right. The matter be placed before the learned Chief Justice so that this aspect of the matter can be decided by the larger bench which will consider the case of Webel Nicco Electronics case (supra) and Ganges Printing case (supra). However in make it clear that I set aside the findings of the tribunal that the reference. Prima facie, appears to be non-sustainable. I hold that the reference is sustainable. The matter be placed before the learned Chief Justice immediately.