- (1.) The petitioner-company has challenged an order dated 23rd November, 1971 made by the learned Judge, 5th Industrial Tribunal, West Bengal in a dispute referred to himT under Sec. 10 of the Industrial Disputes Act, 1974 (hereinafter referred to as the Act). The dispute referred to him was: - ?whether the dismissal of Sri Panchu Gopal De and Sri Jiban Krishna Bhattacharyya is justified? To what relief, if any, are they entitled??
(2.) Sri Panchu Gopal De, respondent No. 2 was during the material time was the Canteen Manager of a canteen maintained by Sirocco Works at Kalyani for the use of the Workmen employed there. The petitioner took over the said Sirocco Works from Davidson of India (p) Ltd. as a result of an order of amalgamation effected from 1st. October 1967. The respondent No. 2 was served with a charge sheet for indiscipline in connection with a stay-in-strike at the aforesaid Sirocco Works. After the causes were shown an enquiry was held into the matter and as a result of the said enquiry the respondent No. 2 was found guilty of the and was dismissed. It is stated that as an industrial dispute was pending before the 5th Industrial Tribunal, West Bengal at the time of the said dismissal, the petitioner made an application for the approval of the action taken by it in dismissing the respondent No. 2. The 5th Industrial Tribunal having held that it had no jurisdiction to proceed with the pretended reference, the Second Labour Court to whom the said application under Sec. 33(2) was pending dismissed the application on the ground that it had no jurisdiction to proceed in the matter. Thereafter the present reference was made by the Government of West Bengal under Section 10 of the Act.
(3.) At the time of the hearing before the Tribunal the petitioner raised certain preliminary objections. Its contention was that the respondent No. 2 was serving the petitioner-company in a managerial capacity and as such was not a ?workman? within the meaning of Sec. 2(s) of the Act. The next preliminary objection raised by the petitioner was that the respondent No. 2 did not make any demand on the management for his reinstatement and in the absence of any such demand being raised, there was no industrial dispute which could be referred to the Tribunal. It was next contended before the Tribunal that one of the workmen specified in the Order of reference, viz. Sri Jiban Krishna Bhattacharyya having amicably settled the dispute with the company, there no longer existed any dispute on which reference was made by the Government. The industrial Tribunal overruled all the preliminary objections raised on behalf of the petitioner.;