G.N. Ray, J. - (1.) This Rule is directed against Memos dated 23rd June, 1978 10th August, 1978, 24th August, 1978, 9th September, 1978 and 6th October 1978, as referred to in the writ petition.
(2.) It appears that six employees, namely, Sri Chandra Kanta Das, Shib Kinkar Ghosh, Sri Jagannath Dey, Sri Sachi Barman, Sri Devid Ghosh and Sri Rafan Mondal, being respondents nos. 4 to 9, were employ of the petitioner, a public limited company. The said employees were char sheeted by the company for certain alleged misconduct and after holding departmental enquiry, the petitioner company dismissed the said respondent from service, As proceedings were pending before the 4th Industrial Tribunal West Bengal, by way of a Reference at the time of dismissal of the employees, the petitioner company filed an application under Section 33(2)(b) the Industrial Disputes Act for approval of the action taken against the said respondents nos 4 to 9. It appears that the 4th Industrial Tribunal granted approval for the said action of dismissal by the petitioner company, it a appears that thereafter the Engineering Shramik Union raised an industrial over the said dismissal of respondents nos. 4 to 9 and a conciliation proceed started before the Deputy Labour Commissioner, West Bengal. It, however appears that the parties could not come to any settlement. A failure re was submitted by the said Deputy Labour Commissioner to the State Government and the State Government also refused to refer the dispute to a Industrial Tribunal under Section 10 of the Industrial Disputes Act on the finding that in granting approval under Section 33(2)(b) the Industrial Tribunal had come to the conclusion that there was no case of victimisation of the said employees and the order of dismissal was passed after holding the departmental enquiry. It appears that the Secretary, Engineering Shramik Union, viz, Respondent no 10 thereafter again made representation to the State Government for re consideration of its decision and for reference of the dispute the Industrial Tribunal. It was contended by the said Union that the decision under Section 33(2)(b) was not really on merits of the case and the scope power of the Tribunal in granting approval under Section 33(2)(b) were limit and only a prima facie view was to be expressed by the Tribunal in the matter of according approval. On receipt of the said further representation from the Union, the State Government referred the said representation to the Labour Commissioner, West Bengal, for favour of his report and views and the Deputy Labour Commissioner, thereafter, issued notices to the petitioner company to submit its views on the said representation of the Union. The petitioner company, in the instant writ petition has challenged the jurisdiction and legality of initiating a second conciliation proceeding after the disposal of the initial conciliation proceeding with the submission of a failure report on the earlier occasion.
(3.) Dr. Pal, the learned Counsel appearing for the petitioner company, contends that a conciliation proceeding was started under the provision of Section 12 of the Industrial Disputed Act and the two termini of starting and conclusion of the conciliation proceeding have been provided for in the Industrial Disputes Act, Dr. Pal contends that a conciliation proceeding on the basis of dispute raised on behalf of said dismissed employees was initiated and after holding sittings with the petitioner company and the representative Union, the Conciliation Officer submitted a failure report and the State Government accepted the same and refused to make a reference under Section 10 of the Industrial Dispute Act after giving reasons. Accordingly the conciliation proceeding had come to an end in the eye law. Dr. Pal contends that after the same, on the self-same material there was no occasion for initiating a second conciliation proceeding Dr. Pal, has, however, submitted that the State Government has the authority to make a reference under Section 10 although, on earlier occasion, the State Government accepted the failure report of the conciliation officer and refused to make a reference if the State Government is satisfied that an industrial dispute is existing and there is a necessity fora reference. He, however, contends that the purported initiation of the second conciliation proceeding is not only misconceived in the facts and circumstances of the case, but the said initiation is also illegal and without jurisdiction, because there was no fresh material and/or cause of action on the basis of which a subsequent conciliation proceeding would have been lawfully initiated. Dr. Pal contends that the Conciliation Officer, on the basis of dispute raised on behalf of the dismissed employees against the said order of dismissal, started a conciliation proceeding and attempted to have an amicable settlement of the dispute between the parties But having failed in his attempt he his submitted his report to the State Government. Hence, on the same set of facts, there is no further occasion to start a conciliation proceeding once more and such initiation of the conciliation proceeding for the second time is not only illegal and without jurisdiction but an abuse of the powers vested under Section 12 of the Industrial Disputes Act.;