- (1.) MESSRS Bird and Co. (P.) Ltd. and Messrs F. W. Heilgers and Co. (P.) Ltd. were the Managing Agents of the petitioner company with several other companies. The Respondent No. 3, Sri Nityananda Ghosh at the material time was employed directly under the aforesaid Messrs Bird and Co. (P.) Ltd. and F. W. Heilgers and Co. (P.) Ltd. in their Statistical Quality Control Department. The office of the said department was situated in the petitioner's premises at Titagar. The service of the respondent No. 3 was under the control and supervision of the Chief Mill Manager of the said company having its office also at the petitioner's premises at Titagar. It is stated that the respondent No. 3 was dismissed from service on July 23, 1964 by the Chief Mill Manager after a charge sheet was issued and a departmental enquiry was held. It further appears that the workmen of the petitioner company took up the matter regarding the dismissal of respondent No. 3 through the mill Committee of the National Union of Jute Workers but due to some technical objection being raised regarding the capacity of the secretary of the Mill Committee, the said matter was not pursued and thereafter the respondent No. 3 personally continued to pursue the said matter.
(2.) BY the Industrial Disputes (Amendment Act), 1965 (Act 35 of 1965) Section 2-A was inserted in the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ). The said section came into effect from December 1, 1965. The respondent No. 3 made certain representation to the Labour Directorate of the State Government in march 1966 and thereafter the State Government made the following reference under Section 10 read with Section 2-A of the Act on September 10, 1966 to the Fifth Industrial Tribunal, West Bengal: "whether the dismissal of Sri Nityananda Ghosh is justified? to what relief, if any, is he entitled?" it may be noticed that the said reference was made in view of the insertion of Section 2-A in the Act as the respondent No. 3 appeared individually without being represented by any Union or by any other workmen collectively.
(3.) BEFORE the Industrial Tribunal a preliminary objection was raised by the petitioner contending that the respondent No. 3 having been dismissed on July 23, 1964, the said act of dismissal took place prior to the introduction of Section 2-A of the Act. It was therefore contended that as the workman was not represented by any Union or by any group of workmen the dispute was an individual dispute and hence the Tribunal had no jurisdiction to entertain such a dispute. The Tribunal overruled the said objection of the petitioner and held inter alia that as on the date of reference under Section 10 (1) of the Act Section 2-A has -already come into operation, the dispute was an industrial dispute and hence the reference was not incompetent. The petitioner has challenged the said decision of the Tribunal in this application. The learned counsel appearing for the petitioner has reiterated the same contention which was urged before the Industrial tribunal. It was contended that as the respondent No. 3 was dismissed prior to the coming into effect of Section 2-A of the Act. The dispute at the time was an individual dispute as it was not espoused either by the Union or by other workmen. Section 2-A of the Act not being retrospective in its operation cannot govern such a dispute. Although at the time of reference Section 2-A was in operation, the material date will be not the time when the reference was made but the time when the dismissal took place. Reliance was placed in support of this contention upon the decision in the case of Messrs Air France v. Miss K. Kotwal and others (1970 2 LLJ 68) and also upon the the case of P. Janardhan Shetty v. Union of India (1970 2 LLJ 738 ). The learned counsel for the respondent no. 3 submitted that as the dispute was in existence and continued on the date when the reference was made there was no question of giving any retrospective effect to Section 2-A of the Act. In support of his contention he relied upon the decisions in the case of Surendra Mohan Mitra v. Republic Engineering Corporation Ltd. (39 FJR 87) and National Productivity Council, New Delhi v. S. N. Kaul (1969 2 LLJ 136 ). To appreciate the rival contentions of the parties it is necessary to consider the nature and character of an industrial dispute as defined in Section 2 (k) of the Act before the introduction of Section 2-A. The preponderance of the judicial opinion was that a dispute between an employer and a single employee cannot per se be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen Central Provinces Transport Service Ltd. v. Raghunath (AIR 1957 SC 104 ). The underlying purpose of restricting an industrial dispute to a collective dispute is based on the necessity of achieving collective amity between labour and capital by recourse to the various means of conciliation, mediation and adjudication provided under the Act.;