INDIAN ALUMINIUM CO LTD Vs. THIRD INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) This appeal is against an Order passed by our learned brother Sabyasachi Mukharji, J. in a proceeding under Article 226 of the Constitution of India, in which proceeding the application, made on behalf of the present appellant, praying for setting aside the abatement and substitution of the heirs of the deceased respondent, has been dismissed. That proceeding which is matter No. 178 of 1970 Indian Aluminium Co. Ltd. v. Third Industrial Tribunal, West Bengal, had arisen upon an application by Indian Aluminium Co. Ltd. under Article 226 of the Constitution of India, challenging the correctness and/or validity of an order made by the Third Industrial Tribunal, West Bengal. The circumstances providing the background of facts are that an industrial dispute was pending before the said Tribunal and during the pendency of that proceeding before the Tribunal two employees, viz. Tarapada Bhattacharjee and Vivekananda Boss were dismissed by the Company on the ground of certain alleged misconduct. The Company made an application before the Tribunal under Section 33 (2) (b) of the Industrial Disputes Act, 1947 for approval of the order of dismissal made by the Company upon those two persons. The Tribunal refused that prayer. Being aggrieved by the said Order of the Tribunal, the Company moved this Court under Article 226 of the Constitution. In the proceeding that commenced in this Court upon that application under Article 226 of the Constitution, the said Tarapada Bhattacharjee and Vivekananda Bose were respondents Nos. 2 and 3 respectively. During the pendency of the matter in this Court, respondent No. 3 Vivekananda Bose died. The date of death has been ascertained and admitted by both the parties to be 12th of August, 1970. For a long time after the death of the said Vivekananda Bose no step appears to have been taken for substitution of the heirs and legal representatives of the said deceased respondent No. 3 in the proceeding pending in this Court. In or about June, 1971, the petitioner, who is appellant before us, appears to have heard about the death of the said Vivekananda Bose on 11th June, 1971. Their learned lawyers wrote letters to the respondents' learned lawyer, asking for confirmation of what the appellants have heard about the death of respondent No. 3, Vivekananda Bose. In that letter, the names of the heirs and legal representatives of the said Vivekananda Bose, if he had really died, were also asked for. In reply to that the learned lawyer for the deceased respondent sent a communication, mentioning the names and addresses of the heirs and legal representatives of Vivekananda Bose, respondent No. 3 which information was supplied to the said lawyer for respondent No. 3 for communication to the lawyer for the appellant. It did not, however, mention the exact date on which Vivekananda Bose had died. Learned lawyer for the appellant again wrote on 23rd July, 1971 to the learned lawyer for respondent No. 3 asking for the exact date of the death of Vivekananda Bose, respondent No. 3. In reply dated 27th July, 1971, the learned lawyer for respondent No. 3 mentioned that Vivekananda Bose expired on 12th of August, 1970 in a fatal accident. Thereupon a Master Summons was taken out on 12th August, 1971 for the application returnable on the 27th August, 1971. In the said application, series of correspondence by which the necessary information was gathered have been mentioned and it has been stated "inasmuch as your petitioner was not aware of the date of death of the third respondent until 28th July, 1971 and had no proper knowledge of his death or of the names of the legal representatives of the third respondent until 29th July, 1971, in the circumstances aforesaid your petitioner was unable to make an application for substitution of the third respondent's legal heirs earlier and your petitioner's right to relief against the third respondent has abated. Your petitioner has also not been able to make an application for setting aside the said abatement within the time for the same reason." The prayers were for setting aside the abatement; condonation of the delay in making the application for setting aside the abatement and for substitution of the legal heirs of the deceased respondent No. 3 and consequent amendment of the Cause Title. There was also a prayer for such other or further orders as the Court may deem fit and proper.

(2.) That application was opposed on behalf of the heirs of the deceased respondent No. 3 whose names were proposed to be substituted upon setting aside the abatement.

(3.) The said application was disposed of by the Order of our learned brother Sabyasachi Mukharji, J. made on 23rd February, 1972. The learned Judge took notice of the relevant dates, which have been mentioned above, for deciding the question whether the appellants were entitled to have the heirs of the deceased respondent No. 3, substituted as prayed for. His Lordship pointed out that the matter was an application under Article 226 of the Constitution and the provisions of the Code of Civil Procedure would be applicable and will be governed by the provisions of the Order 22 of the Code of Civil Procedure read with the Limitation Act. But the learned Judge was of the view that the delay had not been sufficiently explained, particularly as to what the petitioner was doing since he came to know on the 28th July, 1971 about the death of the third respondent prior to making the application returnable on the 27th August, 1971. In that view of the matter, his Lordship held that there had been abatement so far as the third respondent was concerned as a result of his death and also pointed out that he was a necessary party to the application.