ANNAPURNA MISTANNA BHANDAR Vs. INDUSTRIAL TRIBUNAL VIII

JUDGEMENT

(1.) The facts and circumstances leading to this writ petition as alleged in the petition are inter alia that prior to the dissolution of the partnership firm of M/s. Annapurna Mistanna Bhandar and closure of the said business, an industrial dispute arose between the partners of the said firm and the respondent No. 4 representing the workmen of the said firm on the issue of "lock-out" under the notice of then management dated 16th August, 1973. The said dispute was settled with the intervention of the conciliation officer on 24th October, 1973 and a tripartite settlement was entered into by the parties. After the said tripartite settlement dated 24th October, 1973 the business of the said firm was being carried on by the partners of the said firm at the said place. Thereafter dispute and differences arose amongst the partners of the said business with regard to their joint properties including the sweet-meat business and the said firm was dissolved and "closure" was declared of the said business at No. 22, Rabindra Sarani, Calcutta. It has been alleged in the petition that since the partners were no longer interested to carry on the said business of manufacturing and selling sweet-meat in copartnership, accordingly by a notice dated 19th November, 1973, the ex-partners closed down their said business with immediate effect and the service of all the 19 workmen were duly terminated from the said date and the workmen who had been in continuous service in the said business for not less than one year immediately before the said "closure" were duly paid the notice pay and compensation in accordance with the provisions of the Industrial Dispute Act, 1947 and the workmen had duly accepted the said notice and compensation and all other legal dues against receipts duly granted by them in full and final settlement of all their claims and dues against the said firm since dissolved. The said notice of "closure" was served on all concerned, namely, the Secretary in the Department of Labour, West Bengal; The Labour Commissioner, West Bengal; The Conciliation Officer; The Chief Inspector of Shops and Establishments, West Bengal and the respondent No. 4, the union. By letter dated 19th November, 1973 addressed to the Conciliation Officer, the respondent No. 5, the respondent No. 4 the union alleged that the management of M/s. Annupurna Mistanna Bhandar had declared lockout with effect from 19th November, 1973. Thereafter the respondent No. 5 convened a number of joint conferences on the issue of "lockout" but none on behalf of the management of the said firm attended the conference held by the respondent No. 5 on the issue of lock-out as it was contended by the Management that no lock-out was declared by them but in fact they had closed the business and the declaration was a closure and not "lock-out". On 18th August, 1975 the respondent No. 2 made an order of reference being No. 3414-IR, the issue being "Whether the closure of the undertaking with effect from 19th November, 1973 is real? To what relief, if any, are the workmen entitled?" Both the union and the management represented by ex-partners filed their respective written statements. It was contended on behalf of the management that the said Order of Reference is not maintainable being bad in law and that the tribunal had no jurisdiction to adjudicate upon the said order of reference on the ground that no "industrial dispute" as to the issue of closure of the business was at all raised by the workmen or their union with the employer and as such there is no industrial dispute existing with regard to the issue of closure and that the respondent No. 4 having raised an industrial dispute on the issue of lock-out in the fetter dated 19th November, 1973, the instant order of reference is incompetent and as such the tribunal has no jurisdiction to adjudicate upon the said order of reference. At the time of hearing, the preliminary objection was raised on behalf of the ex-partners as to the maintainability of the order of reference as well as the jurisdiction of the tribunal to adjudicate upon such inconsistent order of reference. The said preliminary objection was heard by the learned Eighth Industrial Tribunal and by an order No. 45 dated 8th December, 1981 the said tribunal over-ruled the preliminary objection raised by the ex-employers. In this writ petition the petitioner has challenged the said order overruling the preliminary objection raised by the ex-employers.

(2.) It has been contended on behalf of the petitioner that the respondent No. 1 had committed an error of law apparent on the face of the records by not taking into consideration that no "industrial dispute" at all was raised by the workmen or union with the ex-employer on the issue of "closure" in spite of due service of notice of "closure" dated 19th November, 1973 on the union, the respondent No. 4, and that by letter dated 19th November, 1973 being Annexure "B" to the petition addressed to the Asst. Labour Commissioner, West Bengal the respondent No. 4 had sent a request to the Government without raising any "industrial dispute" with the ex-employer which would be a mere demand by them on the issue of lock-out and not an "industrial dispute" on the issue of closure between the employees of the union and the ex-employer. It has been submitted that there was no scope for making a reference on the issue of closure when no industrial dispute had been raised at all by the union, the respondent No. 4 or the employees as such on the question of closure and as such the order of reference made by the respondent No. 2 under Section 10 in respect of closure is not competent. It has also been urged that the order of reference mentions that an "industrial 'dispute" "exists" but there was no material before the Government to form an opinion as to the existence of "industrial dispute" on the issue of closure and in the instant case there is no such material with regard to the dispute on the issue of "closure" and as such the order of reference is incompetent and bad in law. It was submitted that the tribunal could not go into the question as to whether the closure was real as it did not form part of the "industrial dispute". The learned Advocate for the petitioner also referred, to provisions in the Industrial Disputes Act and submitted that the question of closure really could not be the subject matter of an industrial dispute as defined under the Industrial Disputes Act. The learned Advocate also submitted that the issue with regard to the closure as made out in the order of reference could not form part of the subject matter of a reference under the Industrial Disputes Act and that the tribunal committed an error of law in rejecting the preliminary' objection as to the maintainability of the reference.

(3.) None appeared for the respondent union. I appointed Mr. Partha Sarathi Sengupta, the learned Advocate as amicus curiae. Mr. Sengupta, submitted whether the closure is real or not can be the subject matter of reference and such an issue can form part of industrial dispute. In support of his contention he relied upon a judgment in the case of Walford Transport v. State of West Bengal and Ors. (1978-II-LU-110). He also showed the distinction between lock-out and closure and referred to the Supreme Court judgment in the case of Express Newspapers Ltd. v. The Workmen (1962-II-LU-227). Mr. Sengupta also referred to the factual aspect of the question as to whether such a dispute relating to closure was raised by the workmen union or not. He submitted that the union in its written statement before the tribunal specifically referred to the said fact. Mr. Sengupta referred to paragraph 13 of the said written statement of the union which is set out hereinbelow: