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2009 DIGILAW 506 (CAL)

Gour Debnath v. STATE OF WEST BENGAL

2009-07-15

DEBASISH KAR GUPTA

body2009
Judgment :- (1) This writ application is filed by the petitioner challenging the award dated March 20, 2008 passed by the First Labour Court, West Bengal rejecting the application of the petitioner filed under section 10(1B) of the Industrial Disputes Act, 1947. (2) The facts which appear from the impugned award of the learned First Labour Court, West Bengal, may be stated briefly: The petitioner was a workman under the respondent company. He was dismissed from the services of the respondent company with effect from August 22, 1993. The petitioner raised a dispute before the Labour Department, Government of West Bengal. During the pendency of the dispute both the parties arrived at a settlement and the same was filed by both the parties before the Learned Tribunal and the learned Tribunal passed an award in terms of the settlement. By a communication dated September 22,1996 the petitioner was directed to resume his duties with effect from October 1, 1996. (3) Subsequently, the respondent company declared a lockout on and from April 27, 1998. The lockout was withdrawn with effect from November 17, 1998 but the petitioner was not allowed to resume his duties. The petitioner raised an industrial dispute before the Labour Commissioner, Government of West Bengal. According to the petitioner such dispute was not properly entertained and the workman filed an application for issuing certificate. But no certificate was issued. The petitioner, thereafter, filed an application under section 10(1B) of the Industrial Dispute Act, 1947 challenging his retrenchment from the services of the respondent company. The respondent company raised a preliminary objection with regard to the jurisdiction of the learned First Labour Court, West Bengal, to entertain the above application. The learned First Labour Court, West Bengal dismissed the above application of the petitioner. Hence this writ application. (4) Mr. Jayanta Dasgupta, learned advocate appearing on the petitioner submits that under the provisions of Clause{C) of section 10(1B) of the Industrial Dispute Act, 1947, the petitioner was entitled to file the application under reference to such labour Court or Tribunal as might be specified by the appropriate government by notification. Mr. Dasgupta produced a copy of the notification No. 1085I.R/IR/ 12L-9/95 dated July 25, 1997 (hereinafter referred to as the said notification) issued by the Government of West Bengal in exercise of the power conferred by Clause (c) of sub-section(lB) of section 10 of the Industrial Disputes Act, 1947. Mr. Dasgupta produced a copy of the notification No. 1085I.R/IR/ 12L-9/95 dated July 25, 1997 (hereinafter referred to as the said notification) issued by the Government of West Bengal in exercise of the power conferred by Clause (c) of sub-section(lB) of section 10 of the Industrial Disputes Act, 1947. By virtue of the above notification the Government of West Bengal, specified the First Labour Court, West Bengal, for the districts of Murshidabad, Nadia, Hooghly and Howrah for adjudicating the applications in accordance with the provisions of Clause(d) of sub-section(lB) of section 10 of the Industrial Disputes Act, 1947. Mr. Dasgupta further submits that the application of the petitioner was filed relating to the dispute in the matter of his retrenchment from services. So, the petitioner was entitled to file the aforesaid application as an individual workman in accordance with the provisions of section 2A of the Industrial Disputes Act, 1947. Mr. Dasgupta further submits that the learned Court below was in error in holding that in accordance with the provisions of sub-section(I) of section 7A of the Industrial Disputes Act, 1947, only the Industrial Tribunals having jurisdiction would take up an application relating to the retrenchment of a workman in view of Clause (10) of the third Schedule to the above Act. (5) On the other hand it is submitted by Mr. Partha Bhanja Chowdhury, learned advocate appearing for the respondent company, that in accordance with the provisions of section 7 of the Industrial Disputes Act, 1947, a Labour Court is competent only to adjudicate industrial disputes relating to any matters specified in the Second Schedule to the above Act. Drawing the attention of this Court towards the Second schedule to the above Act, Mr. Bhanja Chowdhury submits that industrial dispute relating to retrenchment was not included in the above schedule. Mr. Bhanja Chowdhury submits that Clause(6) of the second schedule, being residuary clause, included all matters other than those specified in the Third Schedule to the above act within jurisdiction of Labour Courts. It is also submitted by Mr. Bhanja Chowdhury that in view of the Clause (lO) of the third schedule to the above act the industrial dispute relating to the retrenchment of a workman could only be taken up by Industrial Tribunal. Mr. It is also submitted by Mr. Bhanja Chowdhury that in view of the Clause (lO) of the third schedule to the above act the industrial dispute relating to the retrenchment of a workman could only be taken up by Industrial Tribunal. Mr. Bhanja Chowdhury further draws the attention of this Court towards the provision of sub-section (2) of section 40 of the Industrial Disputes Act, 1947, to submit that the Central Government could add or alter or amend the second schedule or third schedule to the above act. (6) Having heard the learned counsel appearing for the respective parties and after considering to the facts and circumstances of the case, I find that admittedly the application of the petitioner was filed under sub-section(lB) of section 10 of the Industrial Disputes Act, 1947 for the purpose of adjudicating the issue of his retrenchment from the services of the respondent company. (7) Admittedly, the appropriate Government issued the said notification in exercise of power conferred by Clause(C) of sub-section(lB) of section 10 of the Industrial Disputes Act, 1947, to specify the First Labour Court, West Bengal for the district of Murshidabad, Nadia, Hooghly and Howrah to give a hearing to the parties, for framing the specific issues in dispute and to proceed for adjudication on the issues so framed as if it was an industrial dispute referred to in sub-section(lB) of section 10 of the Industrial Disputes Act, 1947. It is needless to point out that in view of the provisions of section 2A of the Industrial Disputes Act, 1947, the petitioner was entitled to file the application under reference as an individual workman for the purpose of adjudication of the issue of his retrenchment from the services of the respondent company deeming the same to be an industrial dispute. (8) The objection of the respondent company with regard to the jurisdiction of the First labour Court to entertain the above application was based on the provisions of Clause 10) of the third Schedule to the Industrial Disputes Act, 1947. (9) For proper adjudication of the point of law involved in this case. The above provision is quoted below: THE THIRD SCHEDULE (See section 7A) Matters within the Jurisdiction of Industrial Tribunals .1.... 2.... 3.... 4.... 5.... 6.... 7.... 8.... 9.... 10. (9) For proper adjudication of the point of law involved in this case. The above provision is quoted below: THE THIRD SCHEDULE (See section 7A) Matters within the Jurisdiction of Industrial Tribunals .1.... 2.... 3.... 4.... 5.... 6.... 7.... 8.... 9.... 10. Retrenchment of workmen and closure of establishment; and 11...." (10) On a close scrutiny of the above clause it would be evident that the aforesaid clause conferred jurisdiction upon an Industrial Tribunal to take up an industrial dispute relating to retrenchment of workmen and not that of a workman of an establishment. (11) The instant case was a cause espoused by the petitioner individually deeming to be an industrial dispute. (12) Under the Industrial Dispute Act, 1947, as framed originally, an individual workman, who was discharged, dismissed or retrenched or whose services were otherwise terminated and whose case was not espoused by any labour union or by a substantial number of workmen, had no remedy to espouse his cause individually in accordance with the provisions of section 2(k) and section 10 read with Third Schedule to the Industrial Disputes Act, 1947. (13) Section 2-A was enacted to deal with that contingency. In enacting section 2-A the intention of the legislature was that an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated should be given relief without its being necessary for the relationship between the employer and the whole body of employees being attached to that dispute. The provisions of section 2A of the Industrial Disputes Act, 1947 are quoted below: "2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.-Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or 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." (14) From that point of view also, the instant case of the petitioner being a workman, was not covered under Clause(10) of the Third Schedule to the Industrial Disputes Act, 1947. (15) It is evident from the provisions of Clause(c) of section 1B of section 10 that the appropriate government was empowered to specify different Labour Courts or Tribunals for adjudication of the issue relating to retrenchment of a workman for adjudication of this issue. Clause(c) of subsection IB of section 10 of the Industrial Disputes Act, 1947 is quoted below: "(IB) (a).. (b).. (C) The party may, within a period of sixty days from the receipt of such certificate or, where such certificate has not been issued within a period of sixty days from the receipt of such certificate or, where such certificate has not been issued within seven days as aforesaid, within a period of sixty days commencing from the day immediately after the expiry of seven days as aforesaid, file an application in such from and in such manner and with such particulars of demands as may be prescribed, to such Labour Court or Tribunal as may be specified by the appropriate Government by notification. Different Labour Courts or Tribunals may be specified for different areas or different clauses of industries. (d)...- (16) On a harmonious reading of the aforesaid provisions it is clear that different Labour Courts or Tribunals as specified by the, appropriate Government by notification had the jurisdiction to take up an individual dispute of retrenchment, amongst others, of a workman deeming the same to be an industrial dispute. (17) Therefore, the learned First Labour Court, West Bengal was in error in dismissing the application of the petitioner on the ground of having no jurisdiction to entertain that application. (18) The impugned award is, therefore, quashed and set aside. The learned First Labour Court, West Bengal, is directed to dispose of application of the petitioner on merit expeditiously to ensure that the intention of the legislature is not frustrated. (19) With the above observations and direction this writ application is disposed of. (20) There will be, however, no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Writ application allowed