- (1.) Submissions made on behalf of the petitioners were recorded therein as are reproduced below : - "The petitioner is the widow of a person who was employed by the respondent no. 6, a Government of West Bengal undertaking. The petitioner's deceased husband was served with notice dated 27th September, 1996 informing he was due to retire on 31st January, 1997 after attaining the age of 58 years. The petitioner's husband approached this Court, upon representation made on his behalf not having been considered by the Company, which writ petition was dismissed by order dated 16th April, 1997. The petitioner's deceased husband preferred an appeal which also stood dismissed by order dated 5th March, 1998. The following portion from the order of the Appeal Court is reproduced below : - "Having perused the writ application it appears that no foundational fact has been stated therein as to how the respondent/company is a State within the meaning of Article 12 of the Constitution of India. In this view of the matter alone the writ application is not maintainable. Furthermore it is well -known that this court in exercising of its power of judicial review cannot go into the disputed question of fact. If there is inherent contradiction in the record of the company in respect of recording of date of birth of the petitioner, in our opinion, the remedy of the petitioner is to raise an industrial dispute or take such steps as he may be advised. For the reason aforesaid, this appeal is dismissed."
(2.) The petitioner's husband then went and knocked on the door of the Tribunal in seeking to raise an industrial dispute. The Tribunal by its award dated 31st December, 2007 gave, inter alia, the following reasons : - "Coming to the contention centering prior raising of dispute regarding termination of service before the Management of the Company I find that admittedly the concerned workman Santosh Kumar Das did not raise his voice of protest and instead he approached the Labour Commissioner, Government of West Bengal direct after his retirement. Therefore in such circumstances the dispute cannot be called an Industrial Dispute as defined in Section 2(k) of the Act and the Reference is bad and not maintainable. I derive authority to arrive at such conclusion from the decision of our Hon'ble Calcutta High Court reported in 2006(111)FLR 497 (Capital Limited -Vs - Eighth Industrial Tribunal, West Bengal and Ors.). In this case His Lordship of the Hon'ble Court has been pleased to observe "Raising of a dispute by the workman with the employer is a condition precedent for referring the said dispute by the Government to the Industrial Tribunal for adjudication" and that "the Government cannot make any Reference to the Tribunal without any dispute being raised by the workman with the employer." Therefore, looking from that angle also the Order of Reference is not maintainable. Deliberating on the Company's contention regarding illegality of the Order of Reference on account of Santosh Kumar Das being a retired employees and not a workman I would like to say that the dispute centered around the question of retirement and the Order of Reference mentions Santosh Kumar Das as a workman and not as a retired employee. Therefore, the contention is not acceptable and hence discarded. The decision 2007(115) FLR 1090 referred to by the Learned Advocate appearing for the Company on this score can have no bearing for the aforesaid reason." Ms. Patra, learned advocate appearing on behalf of the petitioner submits, on behalf of the husband of her client letter dated 10th June, 2008 was written to the Branch Manager, Employees' State Insurance Corporation, Central Calcutta local office requiring information of the date of birth of the employee as appearing in their record. By letter dated 17th June, 2008, disclosed at page 74 of the writ petition, the ESI Authority furnished the information that the petitioner's husband's year of birth was 1946 as per records available at their end. She submits further, the Tribunal had examined the Headmaster of the school in which her client's husband had studied upto Class IV and a part of the record of that school was exhibited before the Tribunal which record shows that her husband's date of birth was in the year 1946. She thus submits, the award of the Tribunal should be set aside along with the notice of superannuation."
(3.) Referring to the award of the Tribunal, Mr. Choudhuri relies on other portions to demonstrate that the allegation the deceased husband of the petitioner was born in the year 1946 was based on records of the school and ESI Authority. The allegation was rejected as not a fact by the Tribunal. Hence, the other reasons that were relied upon on behalf of the petitioners and quoted in order dated 19th April, 2016, even if set aside, would not require interference with the decision in the award based on the finding that the petitioners' allegation was not a fact.;