K.M.Yusuf, J. - (1.) On 5th January, 1958 the writ petitioner was appointed as Watchman under the Commissoners for the Port of Calcutta. It is stated that the said Port Commissioners was an industry within the meaning of section 2(j) of the Industrial Disputes Act, 1947 and the petitioner was Workman within section 2(s) of the Act. The provisions of the Calcutta Port Act, 1890 was applicable and under the said Act the establishment was a Major Port and the respondent No. 2 was the appropriate Government. On 12th December, 1967 the petitioner was charge-sheeted on the allegation of submission of false certificate of National Volunteer Force training. A disciplinary proceeding was started and the petitioner was removed from service with effect from 11th February, 1969. He preferred an appeal before the Deputy Chairman of the Port Commissioners and the petitioner was reinstated with effect from 29th April, 1969. The petitioner became an office bearer of the Watchmen Committee to focus the grievance of the Watchmen and he took a leading part in the agitation before the Chairman of the Port Commissioners relating to a dead body of one Amal Chakraborty, a fellow Watchman, who was stabbed to death by miscreants while on duty and the rehabitation of his family. This trade union activity of the petitioner earned displeasure of the Management and he was finally dismissed on 10th August, 1971) by a communication dated 8th August, 1970 in terms of Clause 1 of the Further Conditions of Service which is ab initio void because of non compliance of section 25(F) of the said Industrial Disputes Act. The petitioner states that Clause 1 of Further Conditions of Service of the employee by giving a notice and without assigning any reason is opposed to public policy and void under section 23 of the Contract Act. He appealed against the Order of termination of service and made representations to the Chairman of the Port Commissioners on 12th August, 1971) and the Chairman assured the National Union, Calcutta Port Sramik Union and Calcutta Port and Dock Workers' Union that he would give a personal hearing before taking a final decision but to no effect. On 14th September, 1970 the petitioner protested against the act of the Chairman and requested hi to reconsider the appeal/representation. The Chairman then gave personal hearing on 30th November, 1970 and assured him that he would consider his case personally but before he could do so he was transferred. His successor could not be contacted by the petitioner in spite of his best efforts. By a letter dated 18th August, 1971 he requested the new Chairman to consider the representation and ultimately an interview took place sometime in January 1972 wherein the Chairman assured him to reconsider the case but no decision was communicated to the petitioner. The petitioner made further representations on 21st May, 1973 and 7th August, 1974 and persuade the said industrial dispute already raised in the letter of 14th September, 1971). With effect from 1st February, 1975 the Major Port Trust Act, 1963 came into effect with certain exception of municipal assessment and the Calcutta Port Act, 1890 was repealed. The management, administration and control of the Port of Calcutta was transferred to and vested with the Board of Trustees constituted under the Major Port Trust Act, 1963 and the respondent No. 1 is the successor-in-interest of the Commissioners for the Port of Calcutta. The petitioner on 15th September, 1976 wrote to the Chairman of the Board of Trustees to reconsider his illegal order of termination of service and it was followed by a number of further representations on various dates but no one was considered until 17th October, 1984 when the Secretary of the respondent No. 1 informed the petitioner that the Chairman expressed his inability to reopen the case "at this distant date". The petitioner then by his letter dated 8th June, 1985 requested the Assistant Labour Commissioner (Central), Calcutta, to interfere in the dispute raised by the petitioner on or about 14th September, 1970. The said Assistant Labour Commissioner duly intervened and directed the respondent No. 1 to submit their comments. Before the said Assistant Labour Commissioner, the respondent No. 1, for the first time disclosed that the termination was made for alleged activities of the petitioner which were derogatory to good order of duty and discipline. From this comment of the respondent No. 1 it was crystal clear that the petitioner's service was terminated as a disciplinary measure which requires observance of the principles of natural justice and which were denied to the petitioner. The said Assistant Labour Commissioner duly held the conciliation proceedings and the last one was held on 9th January, 1986. The respondent No. 1 raised the question of alleged cause of action in the domain of industrial adjudication. Ultimately the conciliation proceedings ended in failure, On 10th November, 1986 the petitioner received a letter dated 4th November, 1986 whereby the respondent No. 2 informed the petitioner that there was no prima facie ground for reference of the dispute for adjudication by a Tribunal and no reasons for raising the dispute after a lapse of 15 years have been given by the Workman. The petitioner has challenged the order of termination of service dated 8th August, 1970 and the order of respondent No. 2 dated 4th November, 1986 refusing to make reference of the dispute for adjudication.
(2.) The Affidavit-in-Opposition was filed on behalf of the respondent No. 1, the Board of Trustees of the port of Calcutta, affirmed by the Head Clerk who stated that he was well acquainted with the facts and circumstances of the case and competent to affirm this Affidavit. It is stated that the petitioner was proceeded against departmentally on different charges by the charge-sheet dated 12th December, 1967 and having been found guilty he was removed from service with effect from 11th February, 1969 but on appeal he was taken back in service as a fresher and resumed his duty with effect from 29th April, 1969. In spite of giving written declaration of good conduct in future, his performance had been extremely unsatisfactory. He was staging demonstration, spreading indiscipline and creating trouble in running the Watch and Ward section and as such his service was terminated with effect from 10th August, 1970 by the Chairman's, order dated 29th July, 1970 under clause 1 of Further Conditions of Service and the same was communicated to him by letter dated 8th August, 1970. As the petitioner in the name of the Trade Union was acting illegally and with gross misconduct, his termination of service would not be termed as bad for non-compliance of section 25F of the Industrial Disputes Act. It is also denied that clause 1 of the Further Conditions of Service is opposed to public policy or contradictory to section 23 of the Contract Act. It is further stated that representation dated 12th August, 1970 was considered by the Chairman but he did not find any reason to recall the order of termination and the Chairman's order was communicated by letter dated 29th August, 1970. The granting of interview by the Chairman to the petitioner is denied. It is admitted that some representations as stated in paragraph 11 of the Affidavit were received by the Chairman who expressed his inability to reopen the case and the Chairman's order to this effect was communicated to the petitioner by letter dated 17th October, 1984. It is admitted that the petitioner raised an industrial dispute before the Assistant Labour Commissioner (Central), Calcutta-II, by his letter dated 8th June, 1985 but at the same time it is stated that this respondent did not violate any assurance of reinstatement as alleged. It is stated with emphasis- that the principle of natural justice was fully complied with while passing the order of termination of service. The respondent No. 1 supported the decision of the Ministry of Labour that the Central Government was of opinion that there was no prima facie ground for reference of the dispute for adjudication by a Tribunal. It is stated that clause 1 of Further Conditions of Service was sanctioned by the former Trustees under Resolution No. 709 and the same was approved by the Government of India, Ministry of Shipping and Transport, by letter dated 14th July, 1959. The respondent No. 1 accordingly states that the writ petition be dismissed.
(3.) The Affidavit-in-Reply filed by the petitioner reiterates what are stated in the writ application and is denial of the statements made by the respondent No. 1 in the Affidavit-in-Opposition. It is most strongly stated in the Reply that clause 1 of Further Conditions of Service is illegal, wrongful and contrary to laws of the land and as such the same is liable to be struck down and anything done in terms of the said clause is null and void and nonest. It is also stated to be ultra vires the Constitution.;