- (1.) It appears to this Court that in spite of repeated service no-one appeared on behalf of the workman. State opposed this application on behalf of the employer who has challenged the order impugned being order No. 22 dated 24thpril, 2003 passed by the learned Judge of the Second Labour Court, West Bengal. Since the point agitated before this Court is a question of law, this Court does not feel like to give any direction for filing affidavits. The entire submission is restricted in the order impugned. The order impugned is quoted hereunder : "Order No. 22 dated 24.4.03. Learned representative for the O. P. appears and files further copies of documents. Copy served. Learned rep. for the O. P. files a petition praying for hearing the maintainability points first before going into the merits of the case on the ground stated therein. Otherside receives copy with objection. Let the petition be kept with the record and the matter be placed for hearing after disposal of Issue No. 2. The case is taken up for hearing on issue No. 2. P.W. 1, Sri Chandrika Pr. Gararia is examined and cross-examined in full. Marked docs. Ext. 1 to 4 on behalf of the applicant. Fix 19.05.03 for evidence by the O. P.".
(2.) It appears that the issue No. 1 is a question of maintainability of the industrial dispute whereas the issue No. 2 is "Whether the enquiry held by the management was valid or not". The pertaining question raised by the learned Counsel appearing for the employer that the cause of action for the purpose of making this application arose out of the West Bengal Amendment of the Industrial Disputes Act, 1947 under section 10(1B). The Conciliation Officer, on receipt of the application referred to in sub-section (IB) of section 10 shall within 7 days from the date of receipt of such application, issue a certificate about the pendency of conciliation proceeding to the applicant in Form-"S". The party may out of a period of 60 days from the date of receipt of such certificate or, when such certificate has not been issued within 7 days under sub-rule (3), within a period of 60 days commencing from the day immediately after expiry of 7 days as aforesaid, file an application in Form-'T" to such Labour Courfur Industrial Tribunal as may be specified by the State Government by notification in the Official Gazette. The application which has been made before the Labour Court is not under Form-"T". Therefore, the relevant question arose before this Court whether non-filing of such form is hypertechnical or fatal. Even at the threshold I hold that the format of the application might be hypertechnical but not the issue to be taken under the application in Form-"T" or under an application in the form of Form-"T". Even if the present application is treated to be under Form-"T" the first question is to be determined by the appropriate Labour Court as to whether the application can be held to be maintainable or not. The very important part under Form-"T" is about taking cognizance of the Court. The Industrial Courts can take cognizance provided the relationship between employer-employee for which the jurisdiction has been formed. If it is not, the determination by the Court is without jurisdiction for which Rule of Certiorari can be squarely applicable before this Court for its interference and passing an appropriate order in connection thereto.
(3.) State appeared through the respective Counsel and submitted before this Court by showing a judgment reported in 2003(1) CHN 160, Biswanath vs. Presiding Officer, First Labour Court & Ors., to establish that non-filing of Form-"T" is hypertechnical in question and that defect can be cured subsequently. Whether such defect will be cured subsequently or not will have to be urged by the workman. However, State possibly wanted to hold brief on behalf of the workman who is not before this Court and rightly so. But how the State can say to ignore its own rule is unknown to this Court.;