GANGES PRINTING INK FACTORY EMPLOYEES INDUSTRIAL CO.OP. SOCIETIES LTD. AND ANOTHER Vs. 7TH INDUSTRIAL TRIBUNAL, WEST BENGAL AND OTHERS

JUDGEMENT

(1.) This application had been taken out under Art. 226 of the Constitution of India by Ganges printing Ink Employees Industrial Co-operative Society Ltd. and another for issuance of a rule of Mandamus commanding the respondent No. 1, the 7th Industrial Tribunal to act in accordance with law; recall and/or cancel the impugned orders dated 7th Nov., 1983, 30th Nov., 1983, 2nd Dec., 1983 and all proceedings relating thereto and also for a declaration that Sec. 15 sub-sec. (2) of the amended Industrial Disputes Act was ultra vires and/or in the alternative for a declaration that the time period prescribed under S. 15 (2) of the Industrial Disputes Act was mandatory and no interim relief could be granted if an application was made beyond the period as prescribed under the Act including an order of injunction restraining the respondents from giving effect or further effect to the said impugned orders.

(2.) The petitioner No. 1 is a co-operative society registered under the Co-operative Societies Act M/s. Ganges Printing Ink Factory Ltd. had four factories at Bombay, Madras, Delhi and West Bengal. Due to bad management the production of the company declined and suffered huge financial losses. The Bengal unit as a result was completely closed down. Upon an application for winding up this Court appointed the Official Liquidator to take charge of the entire asset of the Company in West Bengal. The employees of the Calcutta factory formed a Co-operative Society and made an application before this Court for necessary reliefs to run the said factory in Calcutta and by order dated 18th Sept., 1978 this Court granted the necessary leave and licence to the said society for running the Calcutta unit for a period of one year which was renewable subject to sanction of Court, which leave and licence had been renewed from time to time and at present the said members of the Co-operative Society are running the factory at Calcutta. The respondent No. 3 Sushil Kumar Giri was a former employee of the company and he was appointed in the service of the society for a total pay of Rs. 1,038 and he was designated as an in-charge of raw materials stores by letter dated 30th of Nov., 1978. In the said appointment letter it was made clear that such appointment was on a temporary basis for a maximum period of 12 months and at the end of the 12 months such appointment could be terminated by giving one month's notice by either side. Due to difficult financial position and in view of the fact that the post which was given to the respondent No. 3 was no longer necessary in the interest of the society inasmuch as the duties assigned to the said DOst could be effectively discharged by the Assistant Manager of the Society, hence the service of the said respondent No. 3 was dispensed with. In view of that the society by letter dated 3rd of Oct., 1981 discharged the respondent No. 3 from service. The respondent was directed to collect his admissible legal dues which he failed to comply with. It was the case of the petitioner that inasmuch as the post was abolished hence it was necessary to terminate the service of the respondent No. 3. No new encumbent had been engaged in the said post but the work assigned to the said post is now being carried out by a former director of the society. In spite of that the respondent raised an industrial dispute questioning the validity of such discharge. By an order dated 6th Sept., 1982 the respondent No. 2 Govt. of West Bengal referred an industrial dispute to the respondent No. 1 the 7th Industrial Tribunal for adjudication of the issue "whether the termination of service of Sri Sushil Kumar Giri was justified and to what relief if any the respondent No. 3 was entitled to". The written statements were filed by both the parties. In the written statement of the employee according to the petitioner baseless, irrelevant allegations have been made contending that the termination was illegal, arbitrary and violative of the principles of natural justice and he prayed for reinstatement with arrears of wages. The petitioners in their written statement not only emphatically denied such allegations but also stated that the said Sushil K. Giri was not a workman but he was employed in the managerial and administrative capacity drawing a salary of Rupees 1,000 per month. They contended that such reference was not maintainable inasmuch as the termination was due to the abolition of the post to which the encumbent had no right. Hence it was not penal in nature. The respondent No. 3 was not a workman. Hence the industrial Tribunal had no jurisdiction over the matter. A preliminary issue was raised but the respondent No. 1 held that the preliminary issue would be tried along with the hearing of the main issue on merits. Thereafter the documents were filed by both the parties and depositions on behalf of the petitioner commenced. At that juncture the respondent No. 3 made, according to the petitioner a belated application dated 16th of June, 1983 for production of certain documents. The petitioner opposed such application on the ground that those documents were immaterial and irrelevant documents, more so the application by the respondent No. 3 had not been made in accordance with the rules, but by order dated 29th July, 1983 an order was passed allowing the petition filed by the respondent No. 3 thereby directing the petitioner to produce the documents. Being aggrieved by the said order the petitioner moved under the writ jurisdiction of this Court and obtained an order from Mr. Justice P.C. Borooah on 27th of Sept., 1983 whereunder the said impugned order dated 29th July, 1983 was set aside and the learned Judge directed the Tribunal to hear both the parties after passing a speaking order. Thereafter, the respondent No. 3 moved an application under S. 15 (2) of the Industrial Disputes Act before the Tribunal for necessary orders on 7th Sept., 1983. The petitioner contended that such application was not maintainable inasmuch as the Tribunal according to the petitioner could give such interim relief within sixty days of the reference and since the respondent No. 3's application was filed after a period of one year the application should be rejected in limine. The petitioner further apprehended that in the event the proceedings terminated in favour of the petitioner then it would not be possible for the petitioners to recover the money from the respondent No. 3. In spite of that the Tribunal allowed the application filed by the respondent No. 3 directed the company to pay 50 per cent of the salary that is Rs. 510 per month with effect from the date of the application with a further stipulation that the employee should give the undertaking supported by an affidavit that the amount so received by way of interim relief should be returned to the employer in the event the proceedings being decided against the employee. The Tribunal further held that the time limit of sixty days imposed by the statute in the amended S. 15, sub-sec. (2) of the Industrial Disputes Act was directory in nature and not mandatory as a result the application could be filed after a period of 60 days and such application was maintainable. The employee was dissatisfied with such order inasmuch as the Tribunal did not allow the interim relief retrospectively from the date of the termination and inasmuch as the Tribunal directed the employee to affirm an affidavit giving the undertaking as indicated earlier. Therefore, the petitioner contended that the Tribunal has no power to review its own order except on the ground of some clerical error or some mistake apparent on the face of the record. The said application was dismissed by the Tribunal by an order dated 30th of Nov., 1983 and thereby maintained its earlier order dated 7th Nov., 1983 which directed the petitioner to pay 50 per cent of the salary month by month with effect from 7th Sept,. 1983 subject to the condition of affirming an affidavit by the employee concerned. The validity of the entire Industrial Disputes Act, 1980 including the amended S. 15, sub-sec. (2) of the Act has been challenged before this High Court at Calcutta in the matter No. 1378 of 1983. The said matter had not yet been heard and finally decided. It was the case of the petitioners that S. 15, sub-sec. (2) of the Industrial Disputes Act did not give any guideline as to how and in what case such interim relief would be granted as such conferred discretionary and uncanalised power to the Tribunal as a result it was violative of Art. 14 of the Constitution. The petitioner further contended that the amended section of S. 15, subsec. (2) directing payment of interim relief to the workmen without considering the facts of the case, the financial position of the employer, and without securing the said money paid by the employee, tantamount to putting unreasonable restrictions on the employers right to carry on the trade and business. Hence such unreasonable restriction was violative of the Constitutional guarantee given under Art. 19.

(3.) Sec. 15, sub-sec. (2) of the Industrial Disputes Act provides as follows: