- (1.) THIS appeal is by the State of West Bengal and it is directed against the judgment end order dated 28th July, 1971, passed by Sankar Prasad Mitra, J. (as he then was) in an application under Art. 226 of the Constitution, holding that section 2a of the Industrial Disputes Act, 1947, read with section 10 of the said Act is void and illegal as it offends against the provisions of Article 14 of the Constitution, upon the view, that the power that the appropriate government enjoys under section 10 of the said Act, results in discrimination when applied to cases coming within the scope of section 2a.
(2.) ON the 20th May, 1970, by a letter, the respondent No. 1-June and june Goods Buffer Stock Association, a trade Union registered under the provisions of the Indian Trade Union Art, 1926, terminated the services of the second respondent, Mrinal Kanti Bhowmick, a clerk in the employ of the first respondent, with effect from 13th June, 1970. Thereafter, the second respondent approached the Secretary to the employer for reconsideration of the matter and recall the order of termination served upon him. The Secretary, however, did not accede to accept the proposal. On or about 13th June, 1970, the second respondent approached the Conciliation officer of the Government of West bengal with his grievances. The Concilation Officer, the Assistant Labour commissioner, West Bengal, wrote to the first respondent on the 15th June, 1970. In reply to the said letter, the first respondent's Secretary, N. S. Kothari, wrote on 25th June, 1970, that the first respondent was not an "industry" within the meaning of the Industrial disputes Act, 1947, and, as such, no "industrial dispute" could be raised by any of its employees. It was further stated in the said letter that the first respondent was willing to give the second respondent another chance on a trial basis for one month; but the second respondent refused to avail himself of the chance and wanted to collect his dues within a couple of days. Thereafter, the appropriate Government by its order dated 10th October, 1970, referred the dispute in exercise of its power conferred by section 10 read with section 2a of the Industrial Disputes act, 1947, to the Second Industrial tribunal for adjudication of the issue, viz. whether the termination of services of Sri Mrinal Kanti Bhowmick was justified; to what relief, if any, he was entitled to ? The first respondent, the employer, challenged the validity and legality of the said order of Reference made by the Government and also the jurisdiction of the Industrial Tribunal to adjudicate upon that reference and moved this Court on an application under Article 226 of the Constitution. A Rule Nisi was issued on the 27th of november, 1970; the said Rule came up for final hearing before Sankar Prasad mitra, J. (as he then was) who made the said Rule absolute on July 28, 1971.
(3.) THE learned Judge is of opinion that the provisions of section 2a of the industrial Disputes Act, 1947, read with its preamble and other sections suggest, that, the Act was meant for settlement of collective disputes between the employers and the workmen and the enactment of section 2a destroys the concept of an industrial dispute as collective dispute; the provisions; of section 2a appear to be against trade union rights and principles and do not fit into the general texture of the Act; in the provisions of section 2a, one cannot find the qualities and characteristics of persons who may be grouped together that would be absent in persons standing outside the group; the criteria for exercise of discretion under section 10 (1) of the Act would no longer be applied in section 2a as there cannot be any threat of interruption of production or of industrial strife or breach of industrial peace. Therefore, in the case of section 2a, the Government's discretion under section 10 becomes unguided as the Government has no yard stick to judge the gravity or intensity of the peril. The Government is free to make a reference in the case of one workman and refuse a reference in the case of another although both of them is situated exactly in the similar circumstances and for the above reasons, the learned trial judge held, that section 2a read with section 10 offends Article 14 of the constitution and, as such, it is ultra vires.;