- (1.) In this writ petition, the petitioner, a limited company has challenged an order passed by the learned Judge, Second Labour Court, Kolkata, allowing an application filed by the workman, being the respondent no. 5 for impleading the writ petitioner as a party to a subsisting proceeding pending before him. The respondent no. 5 was appointed by Jagatjit, INdustries Ltd. (JIL) being the respondent no. 4 1 as a sales promotion representative with effect from March 22, 1994 Subsequently, there was an arrangement between the writ petitioner and JIL for transfer of two brands of JIL to the writ, petitioner, being Viva and Maltova. By an' agreement executed on February 8,2000 which was termed as "Secondary selling and merchandizing agreement" an arrangement between the petitioner and JIL was entered into,. under which the latter agreed to render' professional services in secondary selling of products under these two brands. The case of the writ petitioner is that under the said agreement, employees of JIL were to remain, with JIL only, and they were not taking up any obligation under the agreement in respect of the employees of JIL.
(2.) The respondent no. 5 had remained in the same job after the ownership of these brands stood transferred to the writ petitioner. It appears that there was no change in the distribution system of the products sold under these brands. During this period, the respondent no. 5 claims to have received salary and- travelling allowance from the funds of the petitioner. THE arrangement between the writ petitioner and JIL seems to have had lapsed subsequently. THEreafter, a notice was issued by the respondent no. 4 by which the petitioner was informed that he stood relieved from the service of the company with effect from April 30,2004 in accordance with Section 25-FFF of the Industrial Disputes Act 1947 (the Act) and it would be deemed that he had been retrenched. It was specified that he was entitled to compensation as laid down under Section 25-F of the Act. Along with the notice a demand draft for ? 73732/- (seventy three thousand seven hundred thirty two only) was sent to the petitioner which included his salary for the month of April 2004. The respondent no. 4 questioned the legality of the said action and sent a communication to the Labour Commissioner, Government of West Bengal alleging that the notice of termination of his service was illegal. In this representation, the Labour Commissioner was requested to take steps for his immediate reinstatement and continuation of his service beyond April 30, 2004 either under JIL or under the writ petitioner. A conciliation proceeding had been started and the conciliation officer took steps for conciliation with JIL, but no settlement could be arrived at. A certificate in terms of Rule 12A(3) of the West Bengal Industrial Disputes Rules, 1958 (the said Rules) was issued by the Conciliation Officer about the pendency of the conciliation proceeding in accordance with the provisions of Section 10( 1B) of the Act. In this certificate it was specifically stated: "Whereas an industrial dispute relating to Alleged illegal termination of service of Suvendu Chaudhury by Jagjit Industries Ltd. 'Shantiniketan, 8, Camac St. 9th Floor, F1. Space No. 9, KoI-17 was raised by Shir Suvendu Chaudhury, Flat No. 208, May Fair Plaza, Netaji Subhas Avenue, Serampore, Dist. Hooghly, Pin. 712201 vide respondent dated May 17,2004." On the strength of such certificate, the respondent no. 4 instituted a case before the learned Second Labour Court, West Bengal, which was registered as case no. 128 of 2004, upon submission of the statement of facts. From the copies of records of the proceeding annexed to the writ petition, marked as "P9", it appears that the matter was posted for hearing on several days before the Labour Court, and JIL and the respondent no. 4 were duly represented before the Court. An application was filed sometime in the month of December 2005 by the respondent no. 5 for addition of the writ petitioner as a party to the aforesaid case. The writ petitioner filed written objection to the aforesaid application, and the matter was heard before the Labour- Court. The learned Judge of the Second Labour Court passed an order allowing the application for adding Glaxo Smithkline Beecham Consumer Health Care Ltd. (the writ petitioner herein) as a party to the said proceeding in terms of Rule 20D(2) and 24E of the Industrial Disputes Rules 1958, upon hearing the learned advocates appearing for the parties on May 8, 2006. In this order it was held: "I have very carefully gone through the decisions referred by Id. Lawyer for the purchaser company. It is well settled Rule of law that a necessary party is one without whom no order can be made effectively: a; proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Having heard submissions, advanced by both sides Id. Lawyers and on consideration of materials placed in the instant application and its written objection, it becomes clear to me that the purchaser company had terminated the agreement, dated February 8,2000 w.e.f. April 20,2004 and accordingly, the activities carried by the food division as per the said agreement came to an end. This is an admitted fact of the purchaser-company and the O.P. Crucial question for determination emerges from this agreement which is a question for determination in this proceeding. In my considered view balance of convenience regarding addition of purchaser company tilts in favour of the applicant. It would be just and proper to add the purchaser-company in the present case in whose presence an effective final order can be made. I am of further view that to arrive at a complete and final decision on the question involved in the proceeding presence of the purchaser-company 'Glaxo Smithkline Beecham Health Care Ltd' is necessary. So the instant petition had merit to be allowed. Hence it is ordered that the instant application for addition of Glaxo Smithkline Consumer Health Care Ltd. is considered and allowed on contest. Fix June 9, 2006 for filing W/S by the purchaser company Glaxo Smithkline Beechan Consumer Health Care Limited."
(3.) This order is under challenge before me. Learned counsel for the petitioner, Mr. Sengupta, has argued that no employer- employee relationship subsisted between the writ petitioner and the respondent no. 5 and as such the writ petitioner is neither necessary nor proper party to the said proceeding. In support of his submissions, he sought to rely on certain clauses in the agreement between the writ petitioner and JIL. In these clauses, there are provisions to the effect that all the employees of JIL would continue to be the employees of the said company only and the petitioner would acquire no liability and obligations, whether statutory or under the contract in respect of such employees. On behalf of the respondent no. 4, it was contended on the other hand that the said agreement was fraudulent and in fact the respondent no. 5 had become the employee of the writ petitioner. In this proceeding, however, in exercise of the Constitutional Writ Jurisdiction I do not wish to enter into the dispute as to whether the respondent no. 5 had become by implication the employee of the writ petitioner or not. What is impugned in this proceeding is an order adding the writ petitioner as a party in the case pending before the Labour Court. THIS issue has to be addressed on the basis of the origin of the dispute and the scope of power and jurisdiction of the Labour Court. I shall accordingly examine the question as to whether the course directed by the learned Judge, Second Labour Court, by impleading the writ petitioner as a party in Case no. 128 of 2004 is legal or not. Rule 20D of the West Bengal Industrial Disputes Rules 1958 contains provisions for addition of parties in a proceeding before the Industrial Tribunal/Labour Courts. The said rule provides: "R.20D. Addition of issues or parties to the proceedings. (1) After the parties have filed their statements, the Industrial Tribunal/Labour Court may fix a date for framing, if necessary, issues relating to and arising out of the point or points in dispute, as referred, and matters incidental thereto, as well as- additional or subsidiary issues, not enlarging in any way the scope of the points referred for adjudication on the merits, nor adding to their number but required for dealing with extrinsic contentions raised by the parties about the reference and for its hearing. (2) The Industrial Tribunal/Labour Court may at any stage of the proceedings, either; upon or without the application of any party and on such terms as may appear to the Industrial Tribunal/Labour Court just, order that the name of any party who ought to have been joined in the reference or whose; presence before the Industrial Tribunal/ Labour Court may be necessary in order to enable the Industrial Tribunal/ Labour Court effectually and completely to adjudicate upon and settle all questions involved in the, dispute, be brought on the record: Provided that no such party shall be brought on the record without being given an opportunity to show cause by proper notice why he should not be brought on the record.' The notice to show cause shall be in Form D-3. (3) The Industrial Tribunal/Labour Court shall have power, when circumstances so require, to bring on record in the place and instead of a party to the reference, a party or parities to which the right or interest of the former has passed in the course of the proceeding before it.";