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2018 DIGILAW 56 (CAL)

Calcutta Port Shramik Union v. Board of Trustees for the Port of Calcutta

2018-01-09

DEBANGSU BASAK

body2018
JUDGMENT : 1. Two orders are under challenge in the present writ petition, one is dated October 25, 2010 and the other is dated July 2, 2014. 2. Learned advocate appearing for the petitioner submits that, the authorities are bound by an award entered into between the employer and the employee. The first respondent as an Article 12 authority cannot change the terms of such award unilaterally. By the two impugned orders, the first respondent has sought to do so. Such actions of the respondents are arbitrary. The petitioner was not afforded a reasonable opportunity of hearing before their rights being affected by the impugned order. Fundamental right of the petitioner stands affected as the right to livelihood stands affected by the impugned order. Condition of service stands altered by the impugned order without affording the petitioner an opportunity of hearing. Moreover none of the impugned orders are informed with reasons. Therefore the writ is maintainable. He relies upon All India Reporter 1980 Supreme Court 2181 (Life Insurance Corporation of India vs. D.J. Bahadur & Ors.) in support of his contentions. 3. Learned advocate appearing for the respondent submits that, the disputes raised by the petitioner are covered under the provisions of the Industrial Disputes Act, 1947. The petitioner has a statutory alternative remedy available to itself. There is no arbitrariness involved in the two impugned orders. Assuming the same to be so, it is for the designated authority to look into the same as disputed questions of facts are involved. The Writ Court has to return a finding of fact as to whether the authority has acted in violation of the existing award to say that the impugned orders are arbitrary and are in violation of the award. Such exercise will involve evidence to be taken. The Writ Court should not enter such arena. Moreover the impugned orders were challenged after five years from the date of passing of the same without any explanation as to the delay being given in the Writ Court. He submits that, the Court should take notice of the fact that, where a change in situation arise, it is open to the employer to act in terms with such changed situation. The impugned orders have been passed in order to provide for the change in situation. 4. He submits that, the Court should take notice of the fact that, where a change in situation arise, it is open to the employer to act in terms with such changed situation. The impugned orders have been passed in order to provide for the change in situation. 4. In reply, learned advocate for the petitioner submits that, the authorities are required to invoke the provisions of Section 9A of the Industrial Disputes Act, 1947. The authorities not having done so, the writ petition is maintainable and that, the impugned orders should be set aside. 5. Life Insurance Corporation of India (supra) relates to a situation where the Life Insurance Corporation was dealing with its employees by issuing orders invoking the provisions of the Act establishing the Corporation. There was also proceedings under the Industrial Disputes Act, 1947. In such factual matrix, the Supreme Court is of the view that, the Industrial Disputes Act, 1947 will have primacy as an Act establishing the corporation does not govern the field of employment between the employer and the employee. 6. Applying the ratio of Life Insurance Corporation of India (supra) in the facts of the present case, it would therefore be prudent to infer and hold that, the provisions of the Industrial Disputes Act, 1947 would have primacy over the Major Port Trust Act, in respect of issues concerning employment. Office orders issued by the Kolkata Port Trust relating to employment are under challenge in the present writ petition. They seem to affect the livelihood of the petitioner. These orders are amenable to the jurisdiction of the Industrial Tribunal under the provisions of the Industrial Disputes Act, 1947. A contention is raised on behalf of the petitioner that, the procedure established in the Act of 1947 is cumbersome. Therefore, the writ is maintainable. It is not the question of procedure. The law establishes a proceeding to be followed by the parties. The Industrial Disputes Act, 1947 has an established procedure for resolution of industrial disputes. It cannot be disputed that, the issues raised by the petitioner are in the realm of industrial disputes and are governed under the provisions of Industrial Disputes Act, 1947. The petitioner has chosen not to avail such alternative remedy. The Industrial Disputes Act, 1947 has an established procedure for resolution of industrial disputes. It cannot be disputed that, the issues raised by the petitioner are in the realm of industrial disputes and are governed under the provisions of Industrial Disputes Act, 1947. The petitioner has chosen not to avail such alternative remedy. Moreover, the petitioner has allowed a period in excess of five years to lapse from the first impugned order and a period of one year after the second impugned order before filing the writ petition. The delay is not explained. 7. The issue as to whether the impugned orders are arbitrary or not, overlooking the period of unexplained delay on the part of the petitioner, involves taking of evidence and permitting the parties to lead evidence. The respondents should be allowed to lead evidence as to why such orders have been passed. The issue is essentially one of fact. At best, it can be said to be an issue of fact and law. The Writ Court need not convert itself to a fact finding authority when there is a statutory alternative remedy available to the petitioner and when the petitioner is not in a position to explain as to why such statutory alternative remedy would not be availed of. The established procedure of the statutory alternative remedy may be perceived to be cumbersome by the petitioner. Such perception will not dilute the fact that the petitioner which has a statutory alternative remedy available to itself. 8. In such circumstances, I am not minded to interfere in the present writ petition. W.P. No. 30 of 2015 is dismissed. No order as to costs.