JUDGMENT : Harish Tandon, J. 1. An interim application filed under section I5(2)(b) of the Industrial Disputes Act, 1947 at the instance of the workman stands allowed by the Second Labour Court, Kolkata, which is impugned in this writ petition. 2. The petitioner never took a stand that the interim application is not maintainable, but raises a dispute as to the maintainability of the proceedings on the basis of the pendency certificate issued by the Conciliation Officer to be non-maintainable because the Conciliation Officer did not held any investigation required under Rule 12A of the West Bengal Industrial Disputes Rules, 1958. 3. Before proceeding to decide the point canvassed by the respective advocates, it would be pertinent to record the salient facts of the instant writ petition. The respondent No. 3 was an employee of the petitioner and was working as Assistant Compounder at the Wholesale section. The complaint was made against the said respondent alleging the commission of misconduct for which a show-cause notice was issued. Subsequently charge-sheet was also issued upon the said respondent and he was kept under suspension. A domestic enquiry was held and the petitioner was imposed penalty of dismissal from service. Thereafter an application under section 33(2Xb) of the Industrial Disputes Act, 1947 was filed by the petitioner company before the Joint Labour Commissioner, Government of West Bengal for granting approval to the said order. 4. By an order dated October 22, 2008 the said Joint Labour Commissioner accorded the approval of the said respondents dismissal from service. Subsequently the said respondent raised an industrial dispute against the alleged termination from service and the matter went before the Conciliation Officer. 5. It came out from the pleadings made in the writ petition that since the Conciliation Officer did not complete the proceedings within the statutory period provided under section 10(1)(B) of the said Act, an application for issuance of the pendency certificate was taken out by the said respondent. Having received the pendency certificate issued by the Conciliation Officer, the said respondent has filed an application under the aforesaid provision before the Labour Court. In the pending proceeding an application for interim relief was taken out, which is disposed of by the Labour Court by passing the impugned order. 6. Having received the pendency certificate issued by the Conciliation Officer, the said respondent has filed an application under the aforesaid provision before the Labour Court. In the pending proceeding an application for interim relief was taken out, which is disposed of by the Labour Court by passing the impugned order. 6. The learned advocate appearing for the petitioner vehemently submits that relief under section 15(2)(b) of the said Act can only be granted after recording the satisfaction relating to the maintainability of the proceedings. He further submits that Rule 12A of the West Bengal Industrial Disputes Rules, 1958 (hereinafter referred to as "the said Rules") provides the mechanism and the procedure for settlement of the dispute by the Conciliation Officer, which includes the duty cast upon the Conciliation Officer to investigate the matter and record his/her satisfaction as to the existence of the industrial dispute. In other words the Conciliation Officer before issuance of the pendency certificate should undertake the investigation and it is only after recording his/her satisfaction as to the existence of the industrial dispute the pendency certificate could be issued. 7. In support of the aforesaid contentions, the reliance is placed upon a judgment rendered by a Co-ordinate Bench of this Court in case of C.E.S.C. Ltd. v. State of West Bengal & Ors. reported in 2008 (3) CHN 329 . The learned advocate further submits that the Co-ordinate Bench has relied upon a judgment of the Supreme Court rendered in case of Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat & Ors. reported in 1968 (16) F.L.R. 307 : AIR 1968 SC 529 , wherein it is held that unless a dispute is raised with the employer, the employee cannot approach the Conciliation Officer directly and it would be deemed that no industrial dispute exists. By relying upon a Judgment of Orissa High Court in case of Orissa Industries Private Limited v. Presiding Officer, Industrial Tribunal & Ors reported in 1976 Lab IC 285, the learned advocate submits that before the industrial dispute can be said to exist there must be a demand by the workman before the management. By relying upon a Judgment of Orissa High Court in case of Orissa Industries Private Limited v. Presiding Officer, Industrial Tribunal & Ors reported in 1976 Lab IC 285, the learned advocate submits that before the industrial dispute can be said to exist there must be a demand by the workman before the management. It is further submitted that the ratio laid down in the Judgment rendered by the Supreme Court as well as the Orissa High Court is accepted and applied in the Division Bench Judgment of this Court delivered in case of Management, Ludlow Jute Mills v. Sheikh Moymur & Ors. reported in 2005 (105) F.L.R. 532. Lastly it is submitted that if the reference is incompetent, the proceeding becomes non est and no interim relief could be granted under section 15(2)(b) of the said Act to the workman. 8. The learned advocate appearing for the workman submits that section 10 (IB) of the said Act permits the workman to file an application before the Labour Court or the Tribunal after obtaining the pendency certificate from the Conciliation Officer and, therefore, if the Conciliation Officer has issued a pendency certificate, the proceedings before the Labour Court cannot be said to be incompetent and/or bad. The learned advocate further submits that the provision contained under section 10 (IB) of the said Act contemplates a different situation and cannot be taken at par, where the Conciliation Officer files a report to the Appropriate Government recording the failure of the settlement. She strenuously submits that Rule 12A of the said Rules is deemed to have been satisfied, once the Conciliation Officer issued a pendency certificate. It is further submitted that once an application under section 33 (2) (b) of the said Act is taken out by the employer, that infers there exists an industrial dispute and, therefore, it cannot be said that there is no existence of such dispute. It is, therefore, submitted that the interim relief granted by the Labour Court upon consideration of the relevant facts should not be interfered with in exercise of the power of judicial review, as the same is never intended to be used as appeal in disguise. 9. It is, therefore, submitted that the interim relief granted by the Labour Court upon consideration of the relevant facts should not be interfered with in exercise of the power of judicial review, as the same is never intended to be used as appeal in disguise. 9. From the respective submissions it appears that the parties are at variance on two issues; firstly whether it is obligatory on the part of the Conciliation Officer to conduct the investigation and thereafter can issue the pendency certificate, if it is satisfied that the industrial dispute exists and secondly whether a demand is to be made by the employee to the employer before making an application before the Conciliation Officer to constitute the industrial dispute. It is no doubt true that the Court while considering an application for interim relief must record the existence of a prima facie case, which does not mean that the cast- is to be proved to be hilt. It is also equally true that if the Court or the Tribunal lacking inherent jurisdiction cannot assume jurisdiction for the purpose of granting the interim relief. Though it is not relevant in the present context, but it would pertinent to record that the Constitutional validity of section 15(2Xb) was challenged before this Honble High Court and the Full Bench in case of B.G. Sampat (Bdbulal Gobardhandas Sampat) v. State of West Bengal & Ors. reported in 2000 (1) CHN 01 held that the said provision is not unconstitutional in these words : "The submission of Mr. Pal, to the effect that section 15(2)(b) of the Act is unconstitutional cannot be accepted. Termination of service has a definite connotation which includes discharge, dismissal or retrenchment. See:-State Bank of India v. N. Sundara Money, reported AIR 1976 SC 1111 . 10. Sub-section (IB) of section 10 of the said Act was subsequently brought by way of an amending Act relating to the West Bengal, where a right is conferred on the individual workman to apply before the Conciliation Officer for a certificate about the pendency of the conciliation proceedings and thereafter can file an application before the Labour Court or the Tribunal for adjudication of an issue that may be framed by the said Court or the Tribunal. 11. 11. Section 11 of the said Act relates to the procedure, power and duties of the authorities, wherein the Conciliation Officer may for the purpose of inquiry into any existing or apprehended industrial dispute enter the premises occupied by any establishment after giving reasonable notice and may also enforce the attendance of any person for the purpose of any examination and inspect any document for the purpose of the industrial dispute. 12. Section 12 of the said Act contains the provisions relating to the duties of the Conciliation Officer, which reads thus : "(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all, matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Hoard, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. (6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: Provided that, subject to the approval of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute. 13. Rule 12A of the West Bengal Industrial Disputes Rules, 1958 which was subsequently inserted by modification dated 12th November, 1993 provides the procedures to be undertaken by the Conciliation Officer, if a representation is made by any individual workman raising a dispute. 14. On the conjoint reading of the aforesaid provisions it appears that an individual workman if made a representation raising a dispute, which obviously relates to an industrial dispute before the Conciliation Officer, the Conciliation Officer is obliged to investigate the matter and after having satisfied as to the existence of the industrial dispute shall take steps for bringing the parties to a settlement; if no settlement could be arrived, the Conciliation Officer shall close the investigation and send to the Appropriate Government a full report stating the steps taken by him ascertaining the facts and circumstances relating to the dispute and also the reasons, in his opinion, for non-arriving of the settlement by the parties. 15. It is thereafter the Appropriate Government after having satisfied that the case is fit to be referred to the Tribunal or the Court or the Board or the National Tribunal shall make a reference. An exception by way of section 10 (IB) of the said Act is carved out to the normal procedure as indicated above wherein an individual workman can approach the Labour Court or the Tribunal directly upon obtaining the pendency certificate from the Conciliation Officer provided no settlement could be arrived within 60 days from the date of raising of the dispute. 16. 16. Does it mean that the moment the 60 days expires from raising the dispute, the Conciliation Officer is statutorily bound to issue the pendency certificate or the 60 days could be said to have reckoned only after the investigation is undertaken by the Conciliation Officer and recording of the satisfaction as to the existence of the industrial dispute ? 17. To answer the aforesaid point, this Court must consider the Judgment of the Co-ordinate Bench of this Court in case oi CESC Ltd (supra). The Co-ordinate Bench while harmoniously interpreting the provisions contained under section 10 (1B) of the Act and Rule 12B of the said Rules held that the time framed envisaged under section 10(IB) would come into operation, if there is a subsisting industrial dispute. In arriving at the aforesaid conclusion it is held that the resolution mechanism provided in section 10(IB) of the Act is not in conflict with the apparent mechanism provided to Rule 12A of the said Rules and, therefore, in absence of any investigation and/or recording of the satisfaction as to the existence of the industrial dispute, the certificate so issued cannot be said to be in compliance of the provisions. The aforesaid observations can be aptly quoted as under:- "40. But the right of such parties to approach the Labour Court (or the Tribunal) do not, in my opinion, accrues only from the fact of lapse of time frame, if no industrial dispute exists. Rule 12A also specifically lays down that the Conciliation Officer must investigate into the matter and come to a finding that an industrial dispute exists, and if he is satisfied that an industrial dispute exists, he shall try to make the parties arrive at a settlement In my opinion, the time frame envisaged in section 10 (IB) would come into operation only if there is a subsisting industrial dispute. This is apparent from the provisions of sub-section (a) of section 10 (IB), which contemplates subsistence of an industrial dispute in a conciliation proceeding relating to an individual workman to set in motion the mechanism provided in that section. Thus, this sub-section envisages existence of an industrial dispute, and only if there is a subsisting industrial dispute, the provisions prescribed for redressal of dispute contemplated in that section would come into operation. 41. Thus, this sub-section envisages existence of an industrial dispute, and only if there is a subsisting industrial dispute, the provisions prescribed for redressal of dispute contemplated in that section would come into operation. 41. Rule 12A, which stipulates the procedural mechanism for proper application of section 10 (IB) casts a duty on the Conciliation Officer to investigate and satisfy himself that there is an industrial dispute, and once he is satisfied to that effect, then only he is to take measures for conciliation. The time-frame stipulated therein cannot be applied in the event the fundamental requirement about satisfaction of the Conciliation Officer on existence of an industrial dispute is not complied with. 42. The steps specified in Rule 12A are interlinked, and on step comes into operation only after the exhaustion of the other, in the sequence prescribed in the said Rules. First comes the duty of the Conciliation Officer to investigate into the matter and satisfy himself that there is an industrial dispute. Thereafter, he is to take step for inducing the parties to come to a speedy, fair and amicable settlement of the dispute. If the dispute, is not settled within sixty days from the date of raising the dispute the right to apply for certificate accrues. Just because no time-fame is provided within which the Conciliation Officer has to arrive at his satisfaction that an individual dispute exists does not mean that even without such satisfaction that an individual dispute exists does not mean that even without such satisfaction the right would accrue to a party to a party to apply before the Labour Court or the Tribunal Any contrary intention would render sub-clause (I) of Rule 12A otiose, and principles of statutory construction go against an interpretation of a statutory provision which would make part of a statute otiose. 43. In sub-clause (a) of section 10 (IB), the party raising the dispute is empowered to apply before the Conciliation Officer for a certificate about the pendency of the conciliation proceeding if no settlement is arrived at within sixty days from the date of raising of dispute. Thereafter, the mandatory time-frame sets in its course. In this sub-clause, however, the expression 'dispute has been used twice. In order to attract the provisions of this sub-section, there must be a subsisting industrial dispute in relation to a single workman in which a conciliation proceeding is set in motion. Thereafter, the mandatory time-frame sets in its course. In this sub-clause, however, the expression 'dispute has been used twice. In order to attract the provisions of this sub-section, there must be a subsisting industrial dispute in relation to a single workman in which a conciliation proceeding is set in motion. This is apparent from the said provision, in which the first time there has been use of the expression dispute, is conjunction with the expression industrial. The expression industrial dispute as used in the said provision would be an industrial dispute within the meaning of section 2(k) of the Act The second time the word dispute has been used in section 10 (lB)(a) is in relation to counting of the period of sixty days, and here the expression is used in isolation, as opposed to its use in conjunction with the word industrial in the first part of this sub-clause. Here, the phrase raising of the dispute appears to imply making ones grievance known to the Conciliation Officer. Thus, the legislative intent is clear that there must be pre-existence of an industrial dispute before the single workman makes his grievance known to the Conciliation Officer. The industrial dispute does not come into existence from the date of making the grievance known to the Conciliation Officer. 44. The necessity of pre-existence of an industrial dispute to take the aid of the resolution mechanism provided in section 10 (IB) of the Act is also apparent from the provisions of Rule 12A, which lays down the implementation process of this resolution mechanism. As per the said Rule, the Conciliation Officer is first required to investigate the matter. Then he is required to satisfy himself that an industrial dispute exists. It is only after that he is required to apply his mediation skill However, under the aforesaid provisions, if this entire process is not' completed within sixty days, a party to the dispute becomes entitled to approach the Labour Court or the Tribunal with the pendency certificate, or even without it, in the manner and under the circumstances provided in the statute." 18. If both the provisions are conjointly read, it appears that the apparent intention of the legislature to incorporate section 10(1B) of the said Act is to provide the speedy, fair and amicable settlement to an individual workman, whose matter is pending before the Conciliation Officer at the settlement stage. If both the provisions are conjointly read, it appears that the apparent intention of the legislature to incorporate section 10(1B) of the said Act is to provide the speedy, fair and amicable settlement to an individual workman, whose matter is pending before the Conciliation Officer at the settlement stage. The Conciliation Officer is statutorily bound to make an investigation, which can obviously done for arriving at the satisfaction that there is an industrial dispute for the purpose of settlement between the employer and employee. The aforesaid provision has been incorporated by way of an exception where an individual workman is blessed with the right to approach the Labour Court or the Tribunal upon obtaining the pendency certificate from the Conciliation Officer, if no settlement is arrived within sixty days from the date of raising the dispute. 19. The language employed under clause (a) of sub-section (IB) of section 10 of the said Act containing the non-obstantive clause manifestly indicates the starting point for the purpose of calculating the period to apply for a certificate about the pendency of the conciliation proceeding. The statute requires that in the event no settlement is arrived between the parties within a period of sixty days from the date; of raising the dispute, it must relate to a representation and/or application made by an individual workman before the Conciliation Officer. Any interpretation to the expression "date of raising of the dispute" other than the date for making representation alleging the existence of dispute would frustrate the legislative intent. Sub-section (d) of section 10 (IB) of the said Act requires the Labour Court or the Tribunal to frame the issue in dispute and thereafter proceed to adjudicate on the said issue, as if it is an industrial dispute referred to under section 10 (IB) by the Appropriate Government, If a judicial adjudication is required, it is to be done on the settled parameters and mere framing of an issue does not take away the right of the parties to agitate before the Labour Court or the Tribunal that it does not relate to an industrial dispute. If it is accepted that the date of raising of the dispute should co-relate with the date when the Conciliation Officer has recorded its satisfaction as to the existence of the industrial dispute upon investigation, it would run contrary to the intention of the legislation for incorporation of the provisions like sub-rule IB of Rule 10 and 12A of the said Rules. The dispute has not been defined under the said Act, which in its grammatical meaning would mean that the contention of one is not accepted by the others. Such dispute may partake the character of industrial dispute, if it relates to any difference between the employers and employee, 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 person under the definition enshrined in section 2(k) of the said Act. 20. Once the provisions of Rule 12A is looked upon, sub-rule (1) thereof requires the Conciliation Officer to make investigation upon receipt of the representation from the individual workman and if he satisfied that an industrial dispute exists shall take further steps for the purpose of inducing the parties of speedy, fair and amicable settlement of the dispute. Sub-rule 2 confers right on the party raising the dispute to apply for certificate before the Conciliation Officer relating to the pendency of the conciliation proceedings. Sub-rule (3) makes an obligatory part on the Conciliation Officer to issue a certificate relating to the pendency of the conciliation proceeding within the time framed and sub-rule thereof bestowed the power on the individual workman to approach the Labour Court or the Tribunal after obtaining the pendency certificate. 21. If the aforesaid provisions are conjointly read, it manifest certain duties to be performed by the Conciliation Officer and in failing to discharge the same makes it imperative on its part to issue a pendency certificate. 21. If the aforesaid provisions are conjointly read, it manifest certain duties to be performed by the Conciliation Officer and in failing to discharge the same makes it imperative on its part to issue a pendency certificate. The Co-ordinate Bench of this Court in case of CESC Ltd. (supra) though recorded that when a time frame is provided under the statute, it is reasonably expected that the Conciliation Officer is aware of his duty to be discharged, which includes the commencement of the investigation and bringing its satisfaction as to the existence of an industrial dispute, but the said Judgment did not take note of the issue as to what would be the consideration for the purpose of computation of limitation and making of an application by an individual workman. 22. In my view if the dispute is capable of being raised on the basis of a representation made before the Conciliation Officer, the date of filing such representation should be the date when the dispute is said to have been raised and the period would be reckoned therefrom. The proceeding before the certificate officer as has been held in case of CESC Ltd. (supra) requires various stages to follow including the stage of investigation and recording of satisfaction as to the existence of the industrial dispute. There is no quarrel to the aforesaid proposition if the conciliation proceeding is initiated on representation made by the individual workman, it is deemed to have commenced on such date and, therefore, if an application is made upon the expiration of sixty days from the date of making the representation, the Conciliation Officer is statutorily bound to issue the certificate. 23. So far as the second point is concerned, the sole basis of the argument is based on the Judgment of the Apex Court rendered in case of Sindhu Resettlement Corporation Ltd. (supra). The case before the Supreme Court was for compensation upon retrenchment. It appears that before such dispute could be raised to the employer, the employee could directly approach the Conciliation Officer. 24. In the above perspective it is held that if the dispute is not raised to the management which does not partake the character of an industrial dispute. The present case is a case of dismissal/termination from service and, therefore, the ratio laid down in case of Sindhu Resettlement Corporation Ltd. (supra) cannot be made applicable. 25. 24. In the above perspective it is held that if the dispute is not raised to the management which does not partake the character of an industrial dispute. The present case is a case of dismissal/termination from service and, therefore, the ratio laid down in case of Sindhu Resettlement Corporation Ltd. (supra) cannot be made applicable. 25. Reference in this regard can be made to a Judgment rendered in case of Shambu Nath Goyal v. Rank of Baroda reported in (1978) 2 SCC 353 where an identical point was raised as to whether the industrial dispute shall come into existence in absence of any demand raised to the employer. The Apex Court held that when the parties are at variance over the dispute connected with the employment or non-employment, it would come within the purview of the industrial dispute in these words: "6, Thus the term industrial dispute connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section." 26. In case of Sadhu Ram v. Delhi 'Transport Corporation reported in (1983) 4 SCC 156 , the Supreme Court distinguished the judgment rendered in case of Sindhu Resettlement Corp. Ltd. (supra) that the issue involved therein relates to the payment of the retrenchment compensation and not the reinstatement which is distinguished in case where the service is terminated of a workman. 27. Ltd. (supra) that the issue involved therein relates to the payment of the retrenchment compensation and not the reinstatement which is distinguished in case where the service is terminated of a workman. 27. The Judgment relied upon by the petitioner rendered by the Orissa High Court as well as the Division Bench of this Court is based on the Sindhu Resettlement Corporation Ltd. (supra), which is later distinguished on fact by a subsequent Bench of the Supreme Court, in the present case after an order of dismissal/termination passed by the petitioner after holding an enquiry, such dispute is deemed to be an industrial dispute under section 2A of the said Act and, therefore, it cannot be accepted that such dispute should be raised before the management first and then workman is entitled to approach the Conciliation Officer. The Judgment is to be read in the context of the facts involved therein as additional fact or a different fact may result in different decision. This Court, therefore, does not find that the observations of the Supreme Court made in case of Sindhu Resettlement Corporation Ltd. (supra) can be applied in a strait jacket manner without looking as to whether the facts involved therein are similar and some what identical to the present case. 28. Furthermore the petitioner themselves approached the Conciliation Officer under section 33 (c) (2) of the said Act after the alleged order of termination or dismissal of the respondent for an approval of an order of dismissal which was granted. If one looks into the provisions contained under section 33 (2) the same can be invoked in respect of an industrial dispute and not otherwise. The petitioner themselves thought that there is an existence of an industrial dispute on the invoking provisions contained under section 33 (2)(b) of the said Act, It, therefore, does not permit the petitioner to contend that there was no existence of an industrial dispute as the dispute was not raised by the workman with the management. Though I am conscious of the proposition of law that the provisions under section 33 (c) (2) and the provisions under section 10 (IB) of the said Act stands on a different footing, but for the purpose of the above issue, the conduct of the parties are also relevant. Though I am conscious of the proposition of law that the provisions under section 33 (c) (2) and the provisions under section 10 (IB) of the said Act stands on a different footing, but for the purpose of the above issue, the conduct of the parties are also relevant. There is no corresponding provisions under the Act that the dispute should be raised by an individual workman or with the management in writing which can be made orally or can be inferred by the conduct of the parties as well. 29. In view of the above findings, this Court does not find that there is any infirmity, ambiguity or illegality in the impugned order. However, this Court records that the findings relating to the maintainability of the proceeding is made as the same was raised in an application for interim measure, this finding shall be deemed to be a tentative one for the purpose of the said application. The Labour Court shall however be at liberty to frame a specific issue if raised by the parties and shall decide the same after giving an opportunity to lead evidence as well as the personal hearing. 30. With these observations, the writ petition is disposed of. 31. There shall, however, be no order as to costs.