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2005 DIGILAW 700 (CAL)

Waxpol Industries Limited v. STATE OF WEST BENGAL

2005-11-22

KALYAN JYOTI SENGUPTA

body2005
Judgment :- (1.) By this writ application the petitioner company (hereinafter referred to as the employer) has challenged the award dated 17th July, 1998 passed in Case No. VIII-54/91 by the learned Judge, First Industrial Tribunal (respondent No. 2 herein). By the impugned award 33 workmen were directed to be reinstated in their services with full back wages after deducting the amounts paid towards notice of pay and compensation. The award was passed on the basis of a reference made by the respondent No. 1. The reference related to the following issues : (i) Whether the closure of the undertaking of M/s. Waxpol Industries Limited of 16/1, Lake View Road, Calcutta and of 20A, Lake View Road, Calcutta-700 029 with effect from 24th April, 1982 was real or not? (ii) What relief, if any, are workmen employed therein entitled to? (2.) The short fact more or less admitted, needs to be stated, is as follows : The workmen concerned were engaged by the petitioner No. 1 in their unit at premises No. 16/1, Lake View Road being the factory site of the petitioner No. 1 of Calcutta Unit, head office which is situated at 71, Ganesh Chandra Avenue at Calcutta. On or about 14th November, 1981 there had been devastating fire broken out at the said factory of the petitioner as a result of which the entire factory including the buildings, structures, sheds, raw materials, finished products, plant and machineries and records were completely destroyed as the same were gutted in fire. All efforts were made to salvage the same. However, it was in vain. The petitioner could not repair and reconstruct factory and resumed its manufacturing operation in view of the order of injunction passed by this Court on a legal action initiated by one M/s. Alembee Co-operative Housing Society Limited. The petitioner duly preferred claim to the Insurance Authority for compensation and it got the same from it. On 24th April, 1982 the petitioner was compelled to declare complete closure of the production unit and godown and as such the services of all the workmen except two watch and ward staff were terminated with effect from 26th April, 1982. In between 24th April, 1982 and August, 1982 all legitimate dues and claims were settled on account of closure as such they were paid off their final settlement including retrenchment compensation and they accepted the same. In between 24th April, 1982 and August, 1982 all legitimate dues and claims were settled on account of closure as such they were paid off their final settlement including retrenchment compensation and they accepted the same. (3.) After having received the full and final settlement the union (viz. respondent No. 3) requested the Assistant Secretary, Labour Department to refer the dispute for adjudication as according to them closure was not genuine. By letter dated 21st December, 1982/16th January, 1984 Assistant Secretary, Labour Department did not consider the dispute about the closure to be fit for intervention. After almost seven years on the basis of the representation the respondent No. 1 passed an order of reference for resolution of the purported industrial dispute on the issues as stated above. On 30th June, 1991 the respondent No. 3 filed written statement and the employer also filed counter-affidavit. The learned Tribunal after examining the witnesses and considering the evidence passed the aforesaid impugned award. On 18th August, 2000 a writ petition was filed by the respondent No. 3 for appropriate direction upon the State Government to publish the said award. On 22nd September, 2000 the writ petition was disposed of by the Honble Justice Bhaskar Bhattacharya directing the award need not be published as per section 17AA of the Industrial Disputes Act, 1947 and, further directed the Labour Commissioner and the Deputy Labour Commissioner to enforce the award in accordance with law within a week, in the event of default by the employer to implement the same. Thereafter this writ petition has been filed by the employer. It is relevant to note that in the previous writ petition the petitioner herein, was party-respondent. (4.) This writ petition could have been dismissed had the aforesaid order of the Honble Justice Bhattacharya been final and conclusive and no appeal having been preferred therefrom. The present writ petitioner preferred appeal against the aforesaid order. The Appeal Court by the judgment and order dated 9th January, 2002 disposed of the appeal modifying the order of the learned Trial Judge to the effect that the said order would remain stayed for a period of three months. Direction was given to file affidavit-in-opposition to the present writ application. In view of the aforesaid order of the Appeal Court the writ petition has to be heard on all points taken therein. (5.) Mr. Direction was given to file affidavit-in-opposition to the present writ application. In view of the aforesaid order of the Appeal Court the writ petition has to be heard on all points taken therein. (5.) Mr. Arunava Ghosh, learned Counsel appearing in support of the writ petition, submits that the learned Tribunal ought not to have entertained the dispute and the issues raised should not have been adjudicated by reason of the fact that after having accepted all dues and claims including retrenchment compensation, gratuity etc. the workmen concerned have accepted the closure without any demur and objection instantaneously and thereafter they have raised dispute after seven years. Previously the Government thought it fit and proper not to refer the dispute for adjudication. He, however, is fair enough to say that under the law there is no bar to reconsider the issues even after previous refusal by the Government to refer the dispute. But such reconsideration is to be done under new facts and circumstances for the subsequent development. Here there has been no subsequent development from the stage of the earlier decision. As such the respondents and each of them are estopped from challenging the legality and validity of the closure which have been accepted by all concerned. (6.) He contends further that the impugned award is based on conjecture and surmises, as there has been no evidence, so to say, to give such findings that the closure of the petitioners aforesaid destroyed unit, is not genuine. No evidence was brought before the learned Tribunal to hold that the petitioner has reopened business for carrying on manufacturing activities. He contends that without any material evidence the learned Tribunal has illegally held that M/s. Tragopan Chemicals Private Limited is owned by the petitioner company. It is settled law that partial closure of business is permissible under the law. The award is based on the erroneous and extraneous consideration. Significantly the award is patently bad in law as the learned Tribunal has awarded reinstatement with full back wages. Admittedly the workmen concerned have been paid all retrenchment and compensation and the relationship of master and servant has come to an end and question of treating them as workmen does not and cannot arise. In support of his contention he has relied on a decision of the Supreme Court judgement reported in 2000(5) SCC 591. (7.) Mr. Admittedly the workmen concerned have been paid all retrenchment and compensation and the relationship of master and servant has come to an end and question of treating them as workmen does not and cannot arise. In support of his contention he has relied on a decision of the Supreme Court judgement reported in 2000(5) SCC 591. (7.) Mr. D. K. Sengupta, learned Counsel appearing for the workmen union, submits that the writ petition should be dismissed in limine as it has suppressed relevant and material fact that the Honble Justice Bhattacharya has passed an order directing the Government to take steps for implementation of the same in the event the same is not implemented by the writ petitioner company. In view of the aforesaid order being passed and the present writ petitioner having been made a party respondent in the previous writ petition, the subsequent writ petition cannot be maintained to challenge the impugned award. The Honble Justice Bhattacharya while passing order of implementation has, by necessary implication, accepted legality and validity of the award. (8.) I am of the view that this preliminary point, has no force to be considered in view of the order passed by the Appeal Court as quoted above. Appeal Court has granted stay of the above judgment and order of the Honble Justice Bhattacharya as such this Court is bound to examine legality and validity of the impugned award. This preliminary point is thus overruled by this Court. (9.) Mr. Sengupta then contends that his award is based on fact findings and evidence. He reminds me the limited jurisdiction of this Court for examining legality and validity of the impugned award. The Writ Court is not the Court of Appeal. The power of judicial review in the writ jurisdiction is to be exercised on the established norms laid down by the Supreme Court and various High Courts. Court cannot examine sufficiency and adequacy of the evidence or fact. He submits that second reference by the Government is valid even though Government declined earlier to refer it. The principle of res judicata in case of passing order of reference does not apply. In support of his contention he has relied on the following decisions viz. AIR 1988 SC 2168 , 1998(79) FLR 367, AIR 1979 SC 180 and 1974(II) LLJ 94. The principle of res judicata in case of passing order of reference does not apply. In support of his contention he has relied on the following decisions viz. AIR 1988 SC 2168 , 1998(79) FLR 367, AIR 1979 SC 180 and 1974(II) LLJ 94. (10.) He has also said that the writ petitioner is guilty of laches and for making inordinate delay and on that ground it should be dismissed. In support of his submission he has relied on a decision of the Supreme Court judgment reported in AIR 1989 SC 674 . (11.) I have carefully gone through the pleadings and considered the respective contentions of the learned Counsels for the parties. The respondent has taken the point of delay as the impugned award was passed on 17th July, 1998 whereas the present writ petition has been filed on 28th September, 2000. According to me, the time taken for filing the writ petition is not an inordinate one. It is true that the Limitation Act has no application as far as writ petition is concerned strictly, but then the period prescribed in the Limitation Act for filing the suit for obtaining corresponding relief is taken as a standard and/or basis to assess the question of delay. The aforesaid law has been pronounced by the Supreme Court itself in the case reported in AIR 1964 SC 1006 , State of Madhya Pradesh and Anr. vs. Bhailal Bhai. In paragraph 21 of the said judgment it is observed and the same is appropriately set out hereunder as follows : ".................Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable...............". This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable...............". (12.) In another decision of the Supreme Court later, reported in JT 1999 (10) SC 336 in paragraph 14 it is ruled as follows : "While no period of limitation is fixed for the writ petition but in the normal course of events the party required for filing a civil suit/proceedings ought to be guiding factor". (13.) In a proceeding of this nature had the petitioner approached the Civil Court then the period of three years from the date of delivery of judgment would have been available to the petitioner, as there is no express provision as regards the time for taking action of this nature in the Limitation Act and residuary Article 108 would have been applicable. (14.) As such I do not think there is any delay in this matter. Naturally the decisions cited by Mr. Sengupta are of no assistance to this case. (15.) While examining the merit of the case I agree with the submission of Mr. Sengupta that the duty of this Court would be very limited as the fact finding backed by evidence cannot be interfered with taking the role of Appellate Court. His legal submission is that inadequacy of the evidence will not be the subject-matter of scrutiny of this Court. All that the Court is required to examine is whether the award was based on any evidence or not and whether the learned Tribunal has addressed the issues and points raised by the parties or not. (16.) I have gone through the respective statement and counter-statement of the case filed before the learned Tribunal and I have also examined the records which have culminated in referring the dispute. Lastly, I have gone through the impugned award. (17.) It appears that in the written statement of the company a plea was taken that the Government has no jurisdiction to refer the industrial dispute when there existed none and further point was taken that the subsequent dispute after having been rejected previously was not lawfully referred. Lastly, I have gone through the impugned award. (17.) It appears that in the written statement of the company a plea was taken that the Government has no jurisdiction to refer the industrial dispute when there existed none and further point was taken that the subsequent dispute after having been rejected previously was not lawfully referred. (18.) While reading the award I find factual aspect of the matter is whether lock out was real or not has been resolved by the learned Tribunal based on evidence. Such fact finding backed by evidence cannot be interfered with by the Court, truly, but the learned Tribunal has not decided the basic question though raised, whether there existed any industrial dispute or not. Admittedly, the Government once refused and was declined to refer the dispute on the basis of the admitted fact as above. Subsequently, after a long time this was referred. (19.) It is settled now by the Apex Court that principle of res judicata has no application where exercise of power vested under the Government under section 10 of the Industrial Disputes Act, 1947. Supreme Court while settling down the law on one hand as stated above ruled on the other hand in case of Avon Services Production Agencies (P) Limited vs. Industrial Tribunal Haryana and Ors., AIR 1979 SC 170 in paragraph 8 as follows : "It follows that the Government does not lack the power to make the reference in respect of the same industrial dispute which it once declined to refer. But it was urged that the ratio of the decision would show that the Government must have some fresh material made available to it subsequent to its refusal to make a reference, for the formation of a fresh opinion, for making the reference. It is not absolutely necessary that there ought to have some fresh material before the Government, for reconsideration of its earlier decision. The Government may reconsider its decision on account of some new facts brought to its notice or for any other relevant consideration and such other relevant consideration may include the threat to industrial peace by the continued existence of the industrial dispute without any attempt at resolving it and that a reference would at least bring the parties to the talking table. A refusal of the Appropriate Government to make a reference is not indicative of an exercise of power under section 10(1), the exercise of power would be a positive act of making a reference. Therefore, when the Government declines to make a reference the source of power is neither dried up nor exhausted. It only indicates that the Government for the time being refused to exercise the power but that does not denued the power. The power to make the reference remains intact and can be exercised if the material and relevant considerations for exercise of power are available, they being the continued existence of the dispute and the wisdom of referring it, in the larger interest of industrial peace and harmony". (20.) Thus, it is clear that there must be some materials for reconsideration of the matter. The State Government has not come forward to disclose in the affidavit about what were the materials for reconsideration of a matter which once, has been refused. (21.) As such exercise of power at the later stage, in my view, is improper as both parties at least seven years ago have settled their position after refusal having been made, that the so-called industrial dispute has come to an end in view of the refusal of the same. (22.) Unfortunately, the Learned Tribunal has not delved into this matter. (23.) I find another significant point which ought to have been dealt with by the learned Tribunal, is that whether there could be any industrial dispute said to be existed on the date of making reference. Admittedly the workmen concerned have accepted all benefits and dues in connection with closure. Retrenchment compensation has been accepted, everything has been paid off and received. There has been no challenge against the legality and validity of the process of retrenchment and payment thereunder. The workmen after having accepted everything have successfully mobilized the State Government for making reference. In my view such act on the part of the workmen is hit by the principle of estoppel. It is not a case of estoppel as against the law but as against the fact. It would not be inappropriate to ascribe it to be clear case of waiver also. In my view once such compensation has been accepted on account of retrenchment owing to closure the relationship of employer and workmen has come to an end. It is not a case of estoppel as against the law but as against the fact. It would not be inappropriate to ascribe it to be clear case of waiver also. In my view once such compensation has been accepted on account of retrenchment owing to closure the relationship of employer and workmen has come to an end. It is not the question of termination of services but is a question of severance of relationship by the mutual act of the parties. It is not a case of illegal victimization but voluntary and conscious abandonment of right of employment as the retrenchment has not been challenged at all. (24.) I think the power under section 10 can be exercised by the Appropriate Government on two conditions viz., (i) the Appropriate Government must form an opinion and (ii) there must be an industrial dispute existed and/or apprehended. Anything short of either of the aforesaid two conditions renders the Government powerless. On the basis of the admitted fact as above I am of the opinion that the workman concerned was no longer a workman. The phrase "industrial dispute" has been defined in section 2K of the said Act which is quoted hereunder : "Industrial dispute means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any persons". (25.) I have already held that on the date of making reference by the Government none of the persons could be termed to be workman as the retrenchment was not challenged. The justification of the closure could have been challenged immediately on service of notice, and I am of the view without having challenged the same and having accepted the compensation under section 25FFF subsequent challenge against the closure is not tenable under the law. If it is allowed then it would be gross injustice to the party who has already acted upon and altered his position. It would amount to approbate and reprobate on the part of the workmen. Had the closure been challenged immediately after putting up of notice then the company would not have offered or made payment therefor, and that too after seven or eight years. It would amount to approbate and reprobate on the part of the workmen. Had the closure been challenged immediately after putting up of notice then the company would not have offered or made payment therefor, and that too after seven or eight years. (26.) I have not been able to find out in the impugned award this point has been attempted to be decided. This point goes to the very root of the jurisdiction of the Tribunal as well, because the exercise of power on reference is depending on the jurisdiction which in its turn relate to industrial dispute. Therefore, the decisions cited by the Learned Counsels for both the parties are of no assistance. In the premises as above I am of the view that the award is not sustainable on (27.) Thus, the award is set aside. Writ petition is allowed. However, no order is passed as to costs. The amount which has been deposited is to be returned to the writ petitioner. Writ Petition allowed.