G. N. Ray, J. - (1.) This appeal is directed against the decision of the trial court in Matter No. 1693 of 1981 by which the learned trial Judge allowed a writ petition made under Article 226 of the Constitution by the appellant, Enamelnagar Development Corporation Ltd. challenging the validity of the adjudication made by the Second Industrial Tribunal, West Bengal in case No. 4548/IR/III/287/76.
(2.) It is the case of the appellant that it employed the respondent 3, Sri Samir Kumar Bakshi during the period between August 1966 and June 1975. The respondent No. 3 was initially appointed by the appellant as a typist-cum-clerk at a salary of Rs. 200/- for a probationary period of two years. After completion of the probationary period, the appointment of the respondent No. 3 was confirmed and he continued to work as a typist-cum-clerk for about seven years. In June 1973 the said respondent 3 was promoted as an Officer in the management of the appellant with the designation of the Officer-in-Charge and the respondent 3 was required to serve in mainly managerial and administrative capacity. As an Officer-in-charge he was part of the management. The respondent 3, it is alleged, committed certain acts of indiscipline and incited the employees of the appellant to stage an illegal and unjustified stay-in-strike and place the Technical Adviser and the Plant Manager of the company under 'gherao'. A charge-sheet was issued against the respondent 3 and disciplinary proceedings were initiated. Mr. H. K. Biswas, a retired Labour Commissioner, was appointed as the Enquiry Officer. A domestic enquiry was held by the Enquiry Officer who submitted his report and after considering such report, the service of the respondent 3 was terminated with effect from July 1975. The respondent 3, after the termination of his service, approached the office of the Labour Commissioner for reinstatement in service and before the various officers of the Labour Department, Government of West Begal, the appellant Company took the stand that the said respondent No. 3 was an Officer-in-charge and part of the management of the company and as such not a workman within the meaning of the Industrial Disputes Act, 1947. The appellant accordingly contended that the termination of service of the respondent 3 could not give rise to any industrial dispute within the meaning of Industrial Disputes Act. The Government of West Bengal, however, by order No, 4548/IR/IR/III/257/76 dated 17th Sept. 1976 referred the dispute between the appellant company and the respondent 3 to the Second Industrial Tribunal, West Bengal for adjudication on the following issue:- "Whether the dismissal of Sri Samir Kumar Bakshi with effect from 1st July, 1975 is justified To what rights is he entitled
(3.) In answer to the written statement filed by the respondent 3 in the said adjudication proceeding before the learned Industrial Tribunal, the appellant filed a written statement, inter alia, contending therein that the order of reference was illegal, without jurisdiction and ultra vires the Industrial Disputes Act, 1947 inasmuch as the respondent No. 3 was not a workman under the said Act. It was also contended that at all material times the said respondent 3 was an officer employed by the company in managerial and administrative capacity and as such no reference for adjudication by the respondent 1 was warranted and the reference was invalid. The appellant also made an application before the Tribunal for determination of the question as to whether or not the respondent 3 was a workman as a preliminary issue. By its order No. 15 dated 8th Sept. 1977 the Tribunal held that the question whether the respondent 3 was a workman or not was a jurisdictional question and the same should be tried as a preliminary issue before proceeding further with the reference. The Tribunal also held that the respondent 3 was required to establish the jurisdictional fact whether he was a workman or not in order to invoke the jurisdiction of the Industrial Tribunal. The Tribunal held that as the onus to establish the said jurisdictional fact was on the respondent 3, the latter should adduce evidence first.;