PODDAR PROJECT LTD Vs. JIWAN KRISHNA DEY
HIGH COURT OF CALCUTTA
PODDAR PROJECT LTD
JIWAN KRISHNA DEY
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(1.)THIS is an application challenging three orders of the Industrial Tribunal. It appears that certain industrial dispute was pending. During the pendency of the said dispute the petitioner-company wanted to discharge an employee after holding an enquiry against him in respect of an alleged misconduct. The petitioner-company, therefore, made an application under S. 33 (2) (A) for permission to discharge the employee. The company after taking several adjournments made an application for further adjournment. By the order, dated 22 April 1974, the application was dismissed by the Tribunal on the ground that numerous adjournments had been taken. Thereupon, the Tribunal took up the said application under S. 33 (2) (b) of the Industrial disputes Act, 1947, and as the company was not willing to go on with the application dismissed the application. The company on the next day made an application for reviewing the order. The Tribunal held that it had no power to review the order and rejected the application. In this application under Art. 226 of the Constitution the order No. 27, dated 22 April 1974, rejecting the company's application for adjournment as well as the order rejecting the application under S. 33 (2) (b) of the Act as also the order, dated 23 April 1974, rejecting the application for restoration have been challenged. The respondent is not appearing in this application.
(2.)MY attention was drawn to the decision in the case of B. R. Hurman v. Seventh Industrial tribunal [1975 C. H. C. N. 3711, where it was held that under the Industrial Disputes act, 1947, a dispute had to be determined under S. 2 (b) of the Act. Section 2 (b) of the act deals with award which is defined as interim or final determination of industrial disputes or any question relating thereto by any Labour Court or Industrial Court or national or Industrial Tribunal and includes an arbitration award made under S. 10a of the Act. It was held in the aforesaid decision that unless a dispute was adjudicated upon there could not be said to be an award. I am afraid, I am unable to see the relevancy of the said decision to the facts of this case. Here there was an application for permission. If the Tribunal thought that the application was not proceeded with by the petitioner, the tribunal, in my opinion, was within its jurisdiction and right to dismiss that application. If an applicant to an application under s. 33 (2) (6) of the Act does not proceed or press the application, in my opinion, the tribunal has certainly the jurisdiction to dismiss the application It is not right to say that even in a case where the applicant is not proceeding with the application, the Tribunal must adjudicate upon the merit of that application. In case of an industrial dispute referred to the Tribunal by an order of reference by the Government different considerations might arise. But such considerations are not present in the instant case in the case of an application under s. 33 (2) (6) of the Act. The Tribunal also in my opinion, is within its jurisdiction to dismiss the application for adjournment if the Tribunal considers it proper to do so in the facts of the case. In the instant case the tribunal has indicated the reasons for not granting the adjournment, namely, that the petitioner had obtained various adjournments. In my opinion the Tribunal's order is within jurisdiction and based upon reasons. Therefore, the first order of the Tribunal cannot be interfered with. So far as the second order of the Tribunal is concerned, I have in dilated before that the Tribunal was competent to dismiss the application if the applicant was not proceeding with the application. The third order is the order of the Tribunal refusing to review the previous order on the ground that it had no jurisdiction. My attention has not been prawn to any specific rule which deals with this power. Perhaps, it is true that there is no such specific rule allowing the Tribunal to rehear or restore an application. Unlike the general civil Courts, the Tribunals, being creatures of statutes derive their powers from the statutes. Therefore, unless the statute so indicates, there is as such in the Tribunals no inherent powers but certain power to discharge fully the functions entrusted to the Tribunals can be implied in the powers granted to the Tribunal to decide an application under S. 33 (2) (6 ). This will be the position unless there is a eontrary indication in the statute. My attention was not drawn to any such contrary indication in the statute. Therefore, in my opinion, in the interests of justice it should be construed that the Tribunal has power to restore an application as implied in the power given to the Tribunal to determine the application under S. 33 (2) (6) of the Act. The Tribunal in the instant case has not considered the merit of the application for restoration. It has to be borne in mind that though the Tribunal was justified in dismissing the application for adjournment, perhaps the Tribunal should have allowed the parties sometime to get ready. Having regard to these features of the case I set aside the last order of the Tribunal and direct the Tribunal to rehear the application for restoration and if it considers fit and proper to rehear the application under s. 33 (2) (i) of the Act and dispose of the application in accordance with law.
(3.)THE rule is made absolute to the extent indicated above. There will be no order as to cests.
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