MANAGEMENT OF CULCUTTA TELEPHONES Vs. JAYANTA KUMAR BANERJEE

JUDGEMENT

(1.) This is an appeal directed against the interim order passed by a learned single Judge dated December 10, 1996 and March 14, 1997.

(2.) The brief facts which are necessary for disposal are that the Management of Calcutta Telephones filed writ petition challenging the award dated October 27, 1995 passed by K.C. Jagadeb Roy, Presiding Officer, Central Government Industrial Tribunal, Calcutta in Reference Case No. 39 of 1991 published on December 7, 1995, The respondent workman was engaged as a casual worker by the Telecommunication Department and he was paid the daily wages and worked for 76 days in the year 1987 and again he was engaged in 1988. It is alleged that excepting the aforesaid 76 days in the year 1987 the respondent could not be engaged nor was engaged in the year 1988, as there was no other casual job available for him. Then an industrial dispute was raised with regard to the termination of the services of the workman. The case of the workman was that he was engaged during the period from February 1987 to December 30, 1988 for 508 days. It is alleged that the management made an agreement and re-engaged 24 casual labourers and the name of the workman petitioner (respondent No. 6) was not considered for engagement though he fulfilled all the terms and conditions, Therefore the workman raised dispute and the reference was made to the Central Government Industrial Tribunal and the Tribunal after recording evidence and considering the whole matter passed an award in favour of the workman and held that the termination of services of the workman is bad. The Tribunal held that there is violation of Section 25-F of the Industrial Disputes Act as the workman worked more than 240 days within 12 calendar month's period preceding the date of his retrenchment, but no notice was served or offered to the workman and no retrenchment benefits were given to him. Accordingly the termination of services of the petitioner was found by the Tribunal to be void and invalid and a declaration was given that the workman is declared to be continuing in service notwithstanding the fact of retrenchment and it was directed that he was to be reinstated with all back wages. This order was challenged by the management by filing the present writ petition and in that an application was moved by the workman/petitioner under Section 17-B of the Industrial Disputes Act for interim payment. This petition came to be disposed of by the learned single Judge by his order dated December 10, 1996 and nobody appeared on behalf of the writ petitioner. Therefore the learned single Judge passed the order ex parte directing that the respondent shall continue to pay a sum of Rs. 1200/- month by month to the petitioner by the 3rd of the succeeding month with effect from the date of admission of the writ petition and the stay order dated June 20, 1996 till the disposal of the writ petition subject to further order by the Court. The amount of arrear was also directed to be paid from the period dated June 20, 1996 till November 1996 by December 20, 1996. After that an application for recalling was moved by the management which came to be disposed of by the learned single Judge by his order dated March 14, 1997 and the learned single Judge after considering the matter observed that since the application of 17-B was filed long back and the matter had come couple of times but nobody appeared on behalf of the management, the learned single Judge held that there is no ground to review or recall the order passed by him on December 10, 1997 and accordingly the learned single Judge dismissed application for recalling and review of the aforesaid order, hence the present appeal has been filed against both these orders.

(3.) The matter was heard at length. The principal submission of the learned counsel for the appellant was that the 17-B application is not maintainable in the present case because Telecommunication Department is not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, therefore the petitioner is not entitled to the benefit of Section 17-B of the Industrial Disputes Act. In this connection learned counsel for the appellant referred us to a celebrated judgment of the Apex Court given in the case of Bangalore Water Supply v. A. Rajappa and it was submitted that the Telephone Department cannot be treated to be an industry and in that connection learned counsel invited our attention to two decisions of the Apex Court given in the case of Sub-Divisional Inspector of Post, Vaikam v. Theyyam Joseph and Bombay Telephone Canteen Employees' Association v. Union of India. But all these cases have been considered by a larger Bench consisting of three judges, i.e. Hon'ble Justice J.S. VERMA, Chief Justice, Hon'ble Justice B.N. KIRPAL and Hon'ble Justice V.N. KHARE and both these judgments delivered by two Judge Bench were found to be not correct in view of the seven-Judge Bench decision in Bangalore Water Supply (supra). Their Lordship after considering the matter held that Telecommunication Department of the Union of India is an 'industry' within the meaning of the definition of Section 2(j) of the Industrial Disputes Act, 1947. It was observed in para-5: