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2010 DIGILAW 63 (CAL)

Naru Gopal Ghosh v. STATE OF WEST BENGAL

2010-01-28

DEBASISH KAR GUPTA

body2010
Judgment : This writ application is filed by the petitioner assailing the award dated February 24, 2006 passed by the 5th Industrial Tribunal, West Bengal, in reference case bearing no.VIII-197 of 1990. By virtue of the above award the learned tribunal held that the cause of termination of service of the petitioner was bona fide closure of the business of Bharatkhata Publication(P) Ltd. The brief facts of this case are as follows:-“Bharatkhata” was the daily newspaper of run by the respondent no.3. According to the petitioner, he started working in the above establishment with effect from August 19, 1997. A Press Card was issued on September 7, 1987. It was renewed in the year 1988. A letter of appointment dated November 13, 1987 was issued in favour of the petitioner by the Auditor-cum-Managing Director of the respondent no.3. As per terms and conditions mentioned in the above appointment letter the monthly salary of the petitioner was fixed at Rs.1000/- with other allowances and facilities referred to therein. The petitioner wrote a letter to the respondent no.3 on September 26, 1989 demanding the payment of his arrear salary. The respondent no.3 informed the petitioner by a communication dated October 3, 1989 that the publication of the newspaper had been suspended. The arrears were paid to the workmen of the respondent no.3 in terms of an agreement dated May 30, 1988 signed between the employer and the workmen of the respondent no.3. The above claim of the respondent no.3 of closure of the business under reference was refuted by the petitioner in his communication dated November 19, 1989 demanding the payment of arrear salary etc. By a communication dated December 27, 1989, the respondent no.3 informed the petitioner that consequent upon the closure of the business of respondent no.3 the services of the petitioner stood terminated and a sum of Rs.3000/- had been laying with the respondent no.3 towards the salary of the petitioner for three months from November 13, 1987 to the first week of March 1988. Since the dispute with regard to the termination of the service of the petitioner was not resolved by way of conciliation, the same was referred to the respondent no.2 by order no.1519-I.R./I.R/13L-12/90 dated August 24, 1990 passed by the Labour Department, Government of West Bengal for adjudication on the following issues:- (i) Whether the termination of services of Shri Narugopal Ghosh is justified. (ii) What relief if any is he entitled to. The subject matter of challenge in this writ application is the award dated February 24, 2006 passed by the respondent no.2 in the above reference case bearing no.VIII-197 of 1990. It is submitted by the learned advocate appearing for the petitioner that the petitioner was a workman in accordance with the provisions of sub-section(s) of Section 2 of the Industrial Disputes Act, 1947. According to him the learned Tribunal was in error in holding that there was closure to Bharatkatha Publication(P) Ltd. in March 1988. According to him there were materials on record before the learned tribunal in support of the claim of the petitioner that the daily newspaper “Bharatkatha” was published even in the month of September 1990. It is further submitted by him that though publication of the newspaper “Bharatkatha” was closed there was no closure of the place of business of respondent no.3. Therefore, there was no closure of the business in accordance with the provisions of sub-section(cc) of Section 2 of the Industrial Disputes Act, 1947. It is also submitted by him that the petitioner was not a party to the alleged agreement dated May 30, 1988. Therefore, any offer of payment of arrear salary etc, to the petitioner in terms of the above settlement was not sustainable in law. It is also submitted that nothing was paid to the petitioner towards his salary and other benefits for the work rendered by him under the respondent no.3 though he was entitled to the compensation for retrenchment in accordance with the provisions of Section 25F of the Industrial Disputes Act, 1947. The petitioner relies upon the decision of Jewell Filter Co. Ltd., Vs. State of West Bengal & Ors., reported in 1969(2) LLJ 221 in support of his above submissions. The above submissions are vividly opposed by the learned Advocate appearing for the respondent no.3. It is submitted by him that the letter of appointment dated November 30, 1987 was an exhibit(Ext.1) before the learned tribunal. Therefore, the learned tribunal rightly decided that the petitioner started working as the correspondent of the respondent no.3 on and from that date. The above submissions are vividly opposed by the learned Advocate appearing for the respondent no.3. It is submitted by him that the letter of appointment dated November 30, 1987 was an exhibit(Ext.1) before the learned tribunal. Therefore, the learned tribunal rightly decided that the petitioner started working as the correspondent of the respondent no.3 on and from that date. It is submitted by him that the fact of closing down of the publication was known to the petitioner as would be evident from the communication dated September 26, 1989, which was exhibit(Ext.4) before the learned tribunal, the petitioner requested the auditor of “Bharatkatha” to let him know about the date when the publication of the above newspaper would resume. According to him the learned Tribunal relied upon the above communication apart from the deposition of the P.W.2 to arrive at a conclusion with regard to the fact of closure of the business of respondent no.3 in March 1988. It is also submitted by him that in view of the above facts the petitioner was only entitled to get his salary with other benefits for three months taking into consideration the date of appointment and the date of the closure of the business. It is also submitted by him that the claim of the petitioner that the publication of “Bharatkatha” in the month of September 1988 was not accepted by the learned tribunal after taking into consideration the fact of settlement of dues in between the respondent no.3 and its workmen dated May 30, 1988. It is also submitted by him that the petitioner did not challenge the above settlement before the learned Tribunal. Therefore, after declaration of the award it was not open for him to take a contrary stand. It is further submitted by him that since the petitioner rendered his services for a period of less than one year he was not entitled for any compensation in terms of the provisions of Section 25F of the Industrial Dispute Act, 1947. The learned counsel appearing for the respondent no.3 relies upon the decision of K.C.P. Ltd. Vs. Presiding Officer & Ors., reported in (1996) 10 SCC 446 in support of submission of binding effect of the settlement dated May 30, 1988. He further relies upon the decision of Shama Prashant Raje Vs. The learned counsel appearing for the respondent no.3 relies upon the decision of K.C.P. Ltd. Vs. Presiding Officer & Ors., reported in (1996) 10 SCC 446 in support of submission of binding effect of the settlement dated May 30, 1988. He further relies upon the decision of Shama Prashant Raje Vs. Ganpatrao & Ors., reported in (2000) 7 SCC 522 to submit that there is no scope for judicial review of the impugned award Having heard the learned counsels for the respective parties as also taking into consideration the admitted facts of this case I find that the learned Tribunals took into consideration the letter of appointment dated November 30, 1987 for the purpose of counting the service tenure of the petitioner. The decision of the learned Tribunal with regard to the closure of the Bharatkhata Publication (P) Ltd. was based on evidences adduced by the witnesses and it was corroborated by the contents of the communication dated September 26, 1989 issued by the petitioner himself. Taking into consideration the learned Tribunal arrived at a conclusion that the provisions of Section 25F of the Industrial dispute Act, 1947 was not applicable in this case to give relief to the petitioner. In do not find substance in the submissions made on behalf of the petitioner that in the instant case the place of employment was not permanently closed. In accordance with the provisions of sub-section(cc) of section 2 of the Industrial Dispute Act, 1947, permanent closure of the place of employment means and includes closing down of such place in part also. In the instant case closing down of the Bharatkhata Publication (P) Ltd. was good enough to bring the matter within the preview of the provisions of sub-section(cc) of section 2 of the industrial Dispute Act, 1947. Therefore, there was no impropriety in the decision making process of the learned Tribunal in passing the impugned award. In this regard reference may be made to the settled principles of law with regard to the scope of judicial review of an award passed by an Industrial Tribunal in the light of the decision of Calcutta Port Shramik Union Vs. Calcutta River Transportation Association, reported in 1988(Supp) SCC 786 and the relevant portions of the above decision are quoted below:- “10. Calcutta River Transportation Association, reported in 1988(Supp) SCC 786 and the relevant portions of the above decision are quoted below:- “10. The object of enacting the Industrial Disputes Act, 1947 and of making provision therein to refer disputes to tribunals for settlement is to bring about industrial peace. Whenever a reference is made by a government to an Industrial Tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication. In all such cases an attempt should be made by courts exercising powers of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hypertechnical grounds. Unfortunately the orders of the Single Judge and of the Division Bench have resulted in such frustration and have made the award fruitless on an untenable basis.” Taking into consideration the tenure of services of the petitioner under the respondent No.3 I find that the decision of Jewell Filter Co. Ltd. (supra) has no manner of application in this case. Consequent upon the discussions and observations made hereinabove, this writ application fails. There will be, however, no order as to costs.