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2019 DIGILAW 32 (CAL)

In Re: Sanchay Mukherjee v. .

2019-01-09

SANJIB BANERJEE, SUVRA GHOSH

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JUDGMENT : 1. The matter pertains to the dismissal from service of the appellant workman. 2. Disciplinary proceedings were sought to be instituted against the workman in the year 1979, but it is the admitted position that no notice in such regard could be served on the workman nor the workman's views sought. It is the further admitted position that the services of the workman were terminated with effect from October 12, 1979 without any previous notice of retrenchment or otherwise being served on him. 3. Upon the workman's complaint to the appropriate authorities, the matter reached the Industrial Tribunal. An initial view was expressed by the tribunal that the supervisory nature of the work done by the workman took him beyond the purview of the definition of "workman" in the Industrial Disputes Act, 1947. The workman challenged the relevant order before this Court in W.P. No. 2515(W) of 1983. Such petition was disposed of by an order dated December 21, 1999, holding that the appellant herein was a workman. An appeal was preferred from such order and an interim order was passed in the appeal to the effect that no final order would be passed by the tribunal but the tribunal would be entitled to continue with the proceedings during pendency of the appeal. Upon the proceedings being concluded before the tribunal, the appellate Court vacated the interim order of stay and the appeal was disposed of; leaving it open to the order of the tribunal to operate. The tribunal held by its award of March 12, 2001 that the appellant was entitled to reinstatement with full back wages since the appellant's services had not been terminated in accordance with law. 4. It was such award of March 12, 2001 that was challenged by way of W.P. No. 9628(W) of 2002 and which culminated in the order impugned dated December 24, 2008 being passed. In effect, it was held by the Single Bench that the workman's services had been terminated in course of disciplinary proceedings. However, such finding militates against the admitted position that no notice of the disciplinary proceedings had been issued to the workman and the workman's services were terminated on October 12, 1979, a day after the failed attempt to serve him a notice of October 11, 1979. 5. The matter has lingered at the appellate stage for a considerable period. However, such finding militates against the admitted position that no notice of the disciplinary proceedings had been issued to the workman and the workman's services were terminated on October 12, 1979, a day after the failed attempt to serve him a notice of October 11, 1979. 5. The matter has lingered at the appellate stage for a considerable period. It was first taken up recently in July, 2018 when the Court suggested a lump-sum figure to be paid to the workman on account of his past dues, upon expressing a prima facie view that the order impugned may not be sustainable. 6. The company offered a pittance and, then, desired the appeal to be decided on merits. Adjournments were sought and Advocates were changed at frequent intervals. Finally, it is submitted on behalf of the respondent company that the award is acceptable to it and the challenge to the award of the tribunal dated March 12, 2001 would no longer be pursued by the employer. However, the respondent company maintains that it is no part of this Court's authority, particularly in the exercise of its jurisdiction under Article 226 of the Constitution, to ascertain or quantify the dues of the concerned workman and the quantification has to be left to the tribunal. 7. On the basis of such submission of the respondent company it is evident that the respondent company now accepts the award of March 12, 2001 to the effect that the appellant's termination was illegal and that the appellant will be entitled to reinstatement full back wages. However, during the pendency of the proceedings in this Court, the appellant reached the age of superannuation in or about the year 2011 and there is no question of reinstatement today. In view of the submission of the respondent company, the concerned tribunal is now requested to ascertain and quantify the dues of the workman, together with such interest as may be permissible till the date of superannuation and the post-retirement dues of the appellant in accordance with Rules applicable to the employees of the respondent company. 8. In view of the submission of the respondent company, the concerned tribunal is now requested to ascertain and quantify the dues of the workman, together with such interest as may be permissible till the date of superannuation and the post-retirement dues of the appellant in accordance with Rules applicable to the employees of the respondent company. 8. Since the matter pertains to an incident of 1979, the present appeal is not disposed of and it is adjourned for a period of six weeks from date to enable the concerned tribunal to indicate the dues of the appellant workman so that appropriate steps can be taken in accordance with law for the expeditious realisation thereof. 9. Liberty is given to the parties to present an authenticated copy of this order before the relevant tribunal and the tribunal is requested to give its attention to the matter at its earliest conveyance, considering the plight of the workman since 1979. 10. It is recorded that upon the concession made on behalf of the respondent company on an earlier occasion, the matter was adjourned to enable Advocate to again consult the client and make appropriate submission. A representative of the respondent company, who has been in attendance when the hearing was taken place on most occasions, is present in Court today. 11. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.