B.C.Mitra, J. - (1.) The petitioner is a Chartered Accountant and is a partner of a firm carrying on business under the name of Ford Rhodes Parks & Company (hereinafter referred to as the Firm). Prior to September, 1958, the Firm employed at Calcutta about 19 audit clerks in order to carry out audit of the account of companies. The Firm also employed about six persons as subordinate staff.
(2.) The petitioner's case is that since the coming into operation of the Companies Act, 1956, which introduced stringent provision as to the manner in which a company should keep its books, the partners of the Firm found that they could not rely on the audit clerks even for the work they used to do formerly and the Firm accordingly was compelled to employ qualified Chartered Accountants for that purpose. On September 30, 1958, the Firm terminated the employment of eight audit clerks and again on November 28, 1958, the services of the remaining 11 audit clerks and one member of the subordinate staff were also terminated with one month's salary in lieu of notice. Therefore, since November 28, 1958, the Firm had no audit clerks in its pay roll.
(3.) On or about January 8, 1959, the State Government made an order of reference referring an industrial dispute between the Firm and its employees represented by the respondent No. 2 herein. The issues framed by the order of reference were as follows:-- "Whether the employees mentioned in the Annexure are entitled to the following benefits and or any other relief:-- (1) Half a month's gross earnings (last drawn) for each year of service together with a month's basic pay (last drawn) for each year of service subject to a maximum of 15 months' pay as retrenchment benefit and gratuity; (ii) a month's basic pay as Puja Bonus lor 1958; (iii) gratuity for the period not covered by the Provident Funds Scheme; and (iv) immediate payment of Provident Fund dues." Upon this reference being made, one of the partners of the Firm moved an application under Article 226 of the Constitution for appropriate writs to quash the proceedings, and to prohibit or restrain the continuity thereof On March 13, 1959, a rule nisi was issued by this Court. The respondents neither appeared nor filed any affidavit-in-op-position to that writ petition, and thereupon the application was heard ex parte and the rule was made absolute on August 6, 1959 On February 6, 1960, the respondent No. 2 moved an application for setting aside the ex parte order made on August, 1959, on the ground that it had not been served with the rule nisi On December 8, 1960, this application was dismissed. An appeal was preferred against the order of dismissal and on January 10, 1962, the Court of appeal set aside the said ex parte order and directed the application to be heard after the respondents had filed their affidavit This matter came up for hearing and on November 19, 1964, an order was made by consent of parties as follows:-- "The said rule nisi do stand disposed of with a direction to the respondent G. Palit, Chairman, Fifth Industrial Tribunal, West Bengal abovenamed to dispose of the issue as to whether the said petitioner carries on an industry as a preliminary issue, and if that issue be in the affirmative then only to go into the other questions involved in the reference." In the meantime, however, G. Palit had ceased to constitute the Fifth Industrial Tribunal. In August. 1959. G. Kumar constitut-td the Filth Industrial Tribunal, and on receiving information that the rule nisi has been made absolute as hereinbefore mentioned, he struck out the said reference on August 18. 1959. Thereafter G. Kumar also ceased to constitute the Fifth Industrial Tribunal and in August, 1965, the Fifth Industrial Tribunal consisted of K. P. Mukherjee. In July 1965 the second respondent applied before the respondent No 1 for setting aside the order dated August 18, 1959, striking out the reference and for adjudicating upon the reference The Firm filed an affidavit-in-opposition contending that the said K. P. Mukherjee had no jurisdiction to adiudicate upon the reference On August 21 1965 an order was made by K. P Mukherjee restoring the reference and directing that the case be heard on the preliminary issue. Thereafter K. P. Mukherjee ceased to be the Fifth Industrial Tribunal and A. K. Dey became and was the Fifth Industrial Tribunal at the time when the reference was heard. On April 22, 1966, A. K. Dey constituting the Fifth Industrial Tribunal made an order holding that the Firm carried on an industry under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). It is this order which is the subject matter of challenge in this application.;