- (1.) IN this writ petition the petitioner has challenged the order dated 20th February, 2007 and sought for addition of the Port Shramik co-operative Enterprise Limited as a party in Reference No. 35 of 2004.
(2.) PETITIONER's Case 2. 1 The case of the petitioner is that in 1996 some workers of the Port shramik Co-operative Enterprise Ltd. (Co-operative) filed C. O. No. 5950 (W)of 1996 praying for absorption by the Calcutta Port Trust. By order dated 27th november, 1998 this Court held that the said dispute should be decided by the labour Court if a dispute is raised. Thereafter a letter was written to the Central government to refer the dispute and the same was recorded. The said rejection was challenged in W. P. No. 2332 of 2001 and by order dated 29th July, 2004 the order of the Central Government was quashed. The Central Government was thereafter directed to refer the dispute to the proper Industrial Tribunal/labour court. On basis thereof by an order dated 27th August, 2004 the Central government made a reference to the Industrial Tribunal at Calcutta. The matter referred was as follows : the Schedule "whether the demand made by the Haldia Calcutta Port and Dock Shramik union to absorb the workers (as per list annexed) of Port Shramik Co-operative stores in the regular establishment under the Kolkata Port Trust is legal and justified? If so, what relief are the disputants concerned entitled to and from what date?" 2. 2 In the matter referred the Co-operative has been named and the Haldia-Calcutta Port and Dock Shramik Union (Union) is seeking absorption of the workers of the Co-operative in the establishment of the Calcutta Port Trust and therefore the Co-operative is a necessary and proper party. Any adjudication in their absence will not be complete and effective. 2. 3 Reference is dated 27th August, 2004 the application for addition was made on 16th March, 2005. The said application has been disposed of on 20th february, 2007 and therefore there has been no delay by the petitioner, In W. P. 2332 of 2001, the Co-operative was a party/respondent and by order dated 4th May, 2007 the Co-operative has been added as a party/respondent in the instant writ petition. 2a. In paragraphs 6, 7, 8, 9 and 10 of the writ petition it has been stated that the Co-operative runs a chain of consumer stores. The Kolkata Port Trust is not in any way, connected in running the said stores. It has no knowledge of the membership of the Co-operative or the identity of its employees. The Co-operative is the employer of the said workmen and the appointment of the workmen is the sole prerogative of the Co-operative which also governs the conditions of service. 2. 5. S. K. Venna's case on which the Union seeks to rely, has been declared as per incuriarn in AIR 1994 SC 2608, AIR 2004 SC 1478. AIR 2005 SC 1050. The workers sought to be absorbed belong to the Co-operative and it is necessary that the same be added as party, hence the instant application has been filed for setting aside the order dated 20th February, 2007.
(3.) UNION's Case 3. 1 Counsel for the Union submits that at no stage was a prayer made to make the Co-operative a party since 1996 and for the first time in 2005 such an application was made. In 2004 when the order of reference was made no letter was written to the Central Government to make the Co-operative a party. At the conciliation stage also no request was made to call the Co-operative for settlement of the matters. The order dated 29th July, 2004 has been accepted and no appeal has been filed therefrom. The application for addition of parties is nothing but an afterthought and intended to delay the proceeding. 3. 2 Section 2 (a) of the 1947 Act defines "appropriate Government" and in the instant case it is the Central Government. Section 2 (k) deals with "industrial disputes" between an employer and its workman or workmen and workmen. Section 10 (2a) of the 1947 Act deals with the time within which the proceeding are to be completed. 3. 3 The first stage of an industrial dispute is to effect a conciliation and in case of failure, make a reference under section 12 (5) of the 1947 Act. Thereafter it is the appropriate Government who makes the order of reference, in the instant case being the Central Government. The Co-operative has been registered under the West Bengal Co-operative Societies Act and in respect of a dispute involving the said Co-operative the appropriate Government will be the State Government. The Co-operative is neither an employer nor a workman. It is Kolkata Port Trust which has been identified as the employer and the workers of the Co-operative have been identified as the workman. In a fit case a party can be added, and there is no dispute with the proposition laid down in air 1964 SC 1746 but the same has no application in the instant case, as the union is seeking absorption of the workers of the Co-operative in the establishment of Kolkata Port Trust. Any evidence needed will be produced by the Union. An industrial dispute exists between an employer and the workman and the Co-operative is not the employer of the workman. 3. 4 The preliminary objection has been decided by the Tribunal and the same has been challenged in this writ petition. Such preliminary objection can also be challenged when the award is challenged on merit. For the said proposition reliance is placed on 1983 (4) SCC 293, 1983 (4) SCC 214, 2001 (3)CHN 153 and the AIR 2004 SC 3905. ;