D.N. Sinha, J. -
(1.) The facts in this case are shortly as follows: The petitioner is a company incorporated under the Indian Companies Act. The respondent No. 3 is an employee of the Rajabhat Tea Co. Ltd. and is at present employed as the Assistant Factory Supervisor of the Rajabhat Tea Estate, belonging to the said Rajabhat Tea Co. Ltd. The Managing Agents of both the said companies are Messrs. Mcleod and Co. Ltd. It is stated on behalf of the respondent No. 4 that the said Messrs. Mcleod and Co. Ltd. are also the Managing Agents of several other Tea Gardens in the Dooars belonging to different companies. In or about the year 1944, the management of the aforesaid Tea Estate, of which the said Messrs. Mcleod and Co, Ltd. are the. Managing Agents, compiled one register of all the members of the Indian clerical statf in all such gardens with a view to ensuring an equitable system of promotion, and the clerical employees of all the said gardens came to be treated as one body, from which, when vacancies would occur, the postings would be made in accordance with seniority and capability, irrespective of the gardens in which they would be serving. It is further said that this has become a term of employment and condition of service of the workmen of the said Tea Estates. If this is true and correct then, it is claimed, that the respondent No. 3, I. B. Ganguly is entitled to be promoted to the post of Factory-Supervisor of the Bhatkawa Tea Estate, as he was the seniormost member of the Indian clerical staff in the register. The company, on the other hand, denies that there was any common register and that there was any such terms of employment or condition of service of the workmen in the said Tea Estates, including the Bhatkawa Tea Estate, belonging to the Bhatkawa Tea Co. The workmen of the Bhatkawa Tea Estate belonging to the Bhatkawa Tea Co. raised an industrial dispute and on the 6th August, 1958 the Government of West Bengal made an order of reference under Section 10 of the Industrial Disputes Act to the Second Labour Court, Calcutta of the following issues :
"Is the management justified in not promoting Sri I. B. Ganguly, Assistant Factory Supervisor of Rajabhat Tea Estate, to the post of Factory Supervisor of Bhatkawa Tea Estate, both the Estates, being under the same Managing Agency of Mcleod and Co. Ltd? To what relief is he entitled?"
(2.) What is particularly to be noted is, that this Order of reference was made, of an industrial dispute said to exist between M/s Bhatkawa Tea Estate (Managing Agents -- Mcleod and Co. Calcutta) P. O. GarOpara Jalpaiguri, and Sri I. B. Ganguly one of the employees of the Rajabhat Tea Estate, under the Managing Agency of McLeod and Go. Ltd., Calcutta, represented by the Tea Garden Indian Employees' Association, P. O. Kalchini, Jalpaiguri. Upon this reference being made, the petitioner herein made an application under Article 226, to this Court, challenging the order of reference and inter alia urging that the order was without jurisdiction as the said I. B. Ganguly was not a workman of the petitioner company, and as such, there could not be an industrial dispute between the company and Sri Ganguly. By my judgment dated 20th February, 1959 a copy of which is annexure "B" to the petition, I upheld this contention, I pointed out that the workmen of a company may raise an industrial dispute in respect of a person who is not a workman, provided that the person regarding whom the dispute was raised, was one, in whose employment, non-employment, terms of employment, or conditions of labour (as the case may be) the workmen of the company have a direct or substantial interest. But the industrial dispute must be between the company and its workmen, and cannot be between the employer and an outsider. The rule was, therefore, made absolute and the order of reference was set aside. I stated however, that the Government would not be prevented from making a proper order of reference between the parties. On the 8th February, 1960 a fresh order of reference has been made, a copy whereof is annexure "C" to the petition. This order states that there is an industrial dispute existing between Messrs. Bhatkawa Tea Estate (Managing Agents, McLeod and Co. Ltd., Calcutta) P. O. Garopara Jalpaiguri and their workmen represented by the Tea Gardens Indian Employees' Association, P. O. Kalchini, Jalpaiguri, and the issue referred was as follows :
"Is the management justified in not appointing Shri I. B. Ganguli to the post of Factory Supervisor? If not what relief is Shri Ganguli entitled to?"
(3.) The company again raised the point before the Labour Court that the reference was incompetent and, as the Labour Court insisted on going on with the reference, this application has been made, for setting aside the second order of reference. Mr. De appearing on behalf of the petitioner argues that in making this second order of reference, the Government has committed the same mistake. He says that in fact, it is still an order of reference of an industrial dispute between the company and Sri I. B. Ganguly, who is not a workman of the company. He points out that the order of reference, although, said to be between the company and its workmen, frames an issue asking the Labour Court to decide as to what relief Sri Ganguly was entitled to, and not the workmen, According to Mr, De no industrial dispute could arise between a company and a person unless that person was himself a workman of the compay or he had been a workman bnt had since been discharged or lastly, that he works for an employer although he is not directly employed by the Company, i.e., through contractors. in my opinion the matter has now been fully decided by the Supreme Court and the principles have been firmly established. The first decision is -- Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate. The appellants there, were the workmen of the Dimakuchi Tea Estate represented by their Union. One Dr. K. P. Banarjee was appointed the Assistant Medical Officer of the Dimakuchi Tea Estate. in April, 1951 he was discharged from service. The case of Dr. Banerjee was espoused by the workmen of the Dimakuchi Tea Estate, who objected to the dismissal, and an order of reference was made stating that an indistrial dispute had arisen between the management of the Dimakuchi Tea Estate and the workmen thereof, and the issues referred were as follows :
"(i) Whether the Management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A. M. O. (ii) if not, is he entitled to reinstatement or any other relief in lieu thereof.";