Samaresh Banerjea, J. - (1.) -The question which has come up for our determination is whether the workman concerned can maintain an application under section 17B of the Industrial Disputes Act in a writ proceeding initiated by the employer challenging an order passed by the Industrial Tribunal under section 33(2)(b) of the said Act refusing to accord approval to the dismissal of the workman concerned.
(2.) Concerned workman being the respondent in the writ petition was dismissed by the writ petitioner company by an order dated 26th of December, 1984 and on the same day an application was made under section 33(2) (b) of the Industrial Disputes Act by the writ petitioner company before the 7th Industrial Tribunal, West Bengal for approval of such order. By an order dated September 20, "1988 Tribunal rejected the said application and refused to accord approval to such order of dismissal. On February 7, 1989 the petitioner company moved a writ application challenging the aforesaid order dated 20th September, 1988 of the said Tribunal whereupon a Civil Order was issued giving direction for affidavits. No interim order however was granted staying the operation of the aforesaid order of the Tribunal. It appears that the said writ petition is still pending and has not been disposed of as yet. In the mean time the workman concerned also filed an application under section 15(2) of the Payment of Wages Act before the concerned authority claiming his back wages. The said claim case also still appears to be pending. The workman thereafter, filed an application for interim relief in the said writ proceedings whereupon Hon'ble Mr. Justice Monoj Kumar Mukherjee by an order dated 27.7.89 directed the company to make payment of the sum of 20,000/- to the workman by way of interim relief. The company preferred an appeal against the said order and by an order dated December 20, 1989 the Division Bench presided over by the Hon'ble Mr. Justice M. N. Roy as His Lordship then was, stayed the aforesaid order subject to the company depositing the sum of Rs. 20,000/with the Registrar. Appellate Side, of this Court with liberty to the workman to withdraw such amount upon giving proper undertaking to the satisfaction of the Registrar. The workman thereafter, filed an application under section 17B of the Industrial Disputes Act which was rejected after contested hearing by the Hon'ble Mr. Justice K. M. Ganguli by an order dated May 28, 1990 on the ground that the provision of section 17B would not be applicable in the case under section 33(2)(6) of the Industrial Disputes Act. The workman filed an application for review of the said order dated November 23, 1990 and the same was also rejected by an order dated November 23, 1990. The workman preferred an appeal against the aforesaid order being F.M.A.T. No. 3253 of 1990 and a Division Bench of this Court presided over by the Hon'ble Mr. N. P. Singh, Chief Justice, as His Lordship then was, allowed the appeal and sent the case back to the Trial Court for disposal of the aforesaid application filed by the workman under section 17B of the said Act afresh after consideration of the Division Bench decision of this Court presided over by the Hon'ble Mr. Justice M. N. Roy in the case of Sheik Shamser Ali v. Kesoram Industries reported in 1987(2) Calcutta High Court Notes, page 39 wherein it was field inter alia that an order made under section 33 (2 ) (b) of the said Act can be enforced by an application under section 17B of the said Act.
(3.) Said application thereafter, was heard by the Hon'ble Mr. Justice Paritosh Kumar Mukherjee and His Lordship after hearing the application by an order dated May 7, 1991 directed the matter to be placed before the Hon'ble Chief Justice for constituting a larger Bench for determining the said question.;