TUSHAR KANTI ROY Vs. EIGHTH INDUSTRIAL TRIBUNAL, KOLKATA

JUDGEMENT

(1.) THE respondents nos. 2 to 4 have raised an objection about the maintainability of the present writ petition and as such the issue of maintainability is taken up as a preliminary issue. The present writ petition is directed against an Award dated November 25, 2011 passed by the learned Judge of the Eighth Industrial Tribunal in case No. VIII-25 of 2007. The case of the petitioner, inter alia, is that he was a workman under the respondent no. 2. In the year 1985 he was served with a show-cause notice and after an enquiry the petitioner was ultimately dismissed from service with effect from December 23, 1985. An appeal by the petitioner against that decision failed.

(2.) IN a proceeding under Section 10 of the Industrial Disputes Act before the Tribunal the petitioner denied all the charges leveled against him and challenged the order of dismissal. He prayed for back wages and consequential benefits for the period of the alleged forced unemployment. The respondent no. 2 in turn denied the allegations made by the petitioner. The Tribunal on the evidence held that it was difficult to hold unhesitatingly that the guilt of the petitioner had been clearly established on the basis of the materials on record on the standard of preponderance of probability. The Tribunal held that in this case the question of reinstatement does not arise as the petitioner had crossed the age of retirement on superannuation and declined to grant him back wages. However, the Tribunal considering the relevant aspects held that it would be just and equitable if the workman concerned got 50 per cent. of the wages/ salary from the date of dismissal till the date of retirement on superannuation towards compensation along with all due retirement benefits which he was entitled to get as per rule, if the same had not been already paid. The respondent no. 2 herein was directed to make the payment within one month form the date of the publication of the Award. The said Award was published by the Government of West Bengal, Labour Department on December 27, 2011. Pursuant to the said Award the respondent no. 2 had made over three cheques to the petitioner of diverse amounts which the petitioner had accepted. Now by filing the present writ petition the petitioner has challenged the action on the part of the respondent no. 2 in misinterpreting the Award and calculating his dues. According to him several factors like promotion, yearly increments, arrears etc. which ought to have been taken into consideration by the respondent no. 2 while making the calculation were, in fact, ignored. Thus, he seeks a Mandamus against the respondents nos. 2 to 4 to pay to him full compensation with full retirement benefits and to recalculate the payment. He has also prayed for a writ of Certiorari by quashing the Award impugned. This has given the respondents an occasion to question the maintainability of the writ petition.

(3.) MR . Sengupta had raised a point that the communication from the respondent no. 2 was not on its own volition but as a result of the petitioner 's asking for money in terms of the Award. A close look at the letter of the respondent no. 2 which has been annexed to the writ petition as Annexure P-3, lends support to the submission of Mr. Sengupta. In the said letter addressed to the petitioner it was specifically mentioned that in terms of the Award, "as communicated by you vide letter dated 27th December 2011 " which suggests that the petitioenr had himself asked for the money from the concerned respondents. Mr. Sengupta submits that it was only for this that the respondent no. 2 decided to make the payment, otherwise the respondent no. 2 also might have challenged the Award itself. It also does not appear that the petitioner had accepted those cheques without prejudice to his rights and contentions. In the letter dated January 25, 2012 the petitioner mentioned that the cheques had been accepted without prejudice to his rights and contentions but that letter was not delivered to the respondent no. 2 before January 27, 2012. Mr. Dhar submits that after he had received those amounts he had written a letter but it could not be served before January 27, 2012 as January 26, 2012 was a public holiday. But irrespective of the date of the delivery of any subsequent letter to the office of the respondent no. 2, the petitioner having not indicated on the receipts themselves that he had accepted the amounts without prejudice forfeited his right to ask for more amount from the respondent no. 2. The three receipts annexed to the writ petition as parts of Annexure P-4, however, do not indicate that the petitioner anywhere mentioned "without prejudice " on those three receipts. Mr. Dhar submitted that on the originals this was mentioned. This was a surprising submission as the copies of the receipts had been made after the revenue stamps were affixed on them and if there had been any such endorsement on the original receipt that would have been reflected in the copies as well. The writ petition is also is absolutely silent about his endorsing those on the original receipts.