KARMARHATTY COMPANY LIMITED Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Mr. Chakraborty, learned counsel for the petitioner has assailed the order dated August 23, 1999 passed by the learned Judge, 8th Industrial Tribunal in Case No. VIII-158 of 1999, filed under Section 15(2)(b) of the Industrial Disputes Act, According to him, Section 12(6) of the Industrial Disputes Act, as amended in West Bengal, provides certain time limit for making reference by the conciliation officer. In this case, he points out that the reference was made and the report was submitted after the expiry of the said period and thus in terms of Section 12(6) of the Act, as amended in West Bengal, the reference is bad prima facie for finding out a case in order to grant interim relief under Section 15(2)(b) of the said Act. He then contends that even on merit the learned Tribunal has misdirected itself in finding out a prima facie case. He contends that if it is found that the workman earned Rs. 600 per month the said amount shall be taken into consideration for the purpose of grant of ad interim relief and the said factor is to be taken note of. According to him, in view of the decision in Webel Nicco Electronics Ltd. v. Anima Roy [2000] 1 CHN 1 and Sampat B. G. v. State of West Bengal, [1991] 1 CLJ338, it is only when a prima facie case is made out that the petitioner would be entitled to succeed, then only such relief can be granted. Therefore, in the present case the impugned order cannot be sustained and is liable to be quashed.

(2.) Learned counsel for the workman, on the other hand, contends that such income cannot be taken note of in view of the decision in the case of Ganges Printing Ink Factory Employees Industrial Co- operative Society Ltd. v. Seventh Industrial Tribunal, [2000] 91 CWN 480, which has since been overruled. But such income does not bar the relief under Section 15(2)(b)oftheAct. The overruling part is related to the question of finding of prima facie case which was altogether excepted in Ganges Printings case, (supra), wherein it has been held that it is not necessary to find out as to whether there is a prima facie case or not. That part of the ratio decided in Ganges Printings case, (supra) was reversed. But the other part with regard to income was not overruled. Therefore, earning of Rs. 600 is immaterial and it cannot be said that he is gainfully employed. The Tribunal had already found that there was a prima facie case. Therefore, this Court in exercise of its jurisdiction should not interfere with the said finding unless it is found perverse. According to him, it is not perverse and are based on sufficient materials. He then contends that the ground relating to Section 12(6) of the Act, as amended in West Bengal, cannot be taken into consideration at this stage. It is a question of validity of reference. On this ground, according to him, the petition should be dismissed. I have heard the respective counsel for the parties at length.

(3.) So far as the contention of Mr. Chakraborty, learned counsel for the petitioner with regard to Section 12(6) is concerned, this question cannot be decided at this stage. According to him, the reference is bad. But only on such a ground being raised, application of Section 15(2)(b) of the said Act cannot be ruled out. A preliminary objection if raised is to be decided either as a preliminary issue or be tried on merit at the trial with all other issues. If raising of preliminary issue has the effect of preventing application of Section 15(2)(b) then the object of introduction of that Section shall be frustrated. The relief contemplated therein is interim in nature. This can also be decided simply on the ground that a preliminary objection as to the maintainability of the reference has been raised. The question is to be decided having regard to the totality of the prima facie case to be found out by the learned Tribunal.