SALIL KUMAR DATTA,J. - (1.) This is an appeal against the judgment of Sabyasachi Mukharji, J., dated August 25, 1977, whereby the rule obtained by the appellant, the Calcutta Electric Supply Corporation Ltd. (hereinafter referred to as the company), on an application under Article 226 of the Constitution was discharged. The facts giving rise to the proceeding, according to the company are as follows: The company is carrying on the business of generation and distribution of electricity for reward and the respondent No. 2, Amaresh Roy, was a clerk in its revenue department. On August 3, 1976, the company dismissed Roy for having misappropriated money belonging to the company. At the time of dismissal no conciliation proceeding under the Industrial Disputes Act, 1947, was pending between the company and its workmen before any conciliation officer. As a matter of abundant caution the company made an application before P.C. Sen, conciliation officer and Joint Labour Commissioner, Government of West Bengal, under Section 33(2)(b) of the Industrial Disputes Act for approval of the said dismissal. It was stated in the application which is dated August 3, 1976, that the said workman was asked to show cause against the allegations of having illegally collected cash from the consumers of the company as specifically named against electric bills for about Rs. 28,000 and also for having misappropriated the same. The workman replied to the said show -cause notice which was found to be unsatisfactory and thereafter in accordance with its standing orders an Enquiry Committee was constituted. Enquiry was held on June 25, 1975, and the appellant was given opportunity to defend his case. After the conclusion of the enquiry the enquiry proceeding along with the findings of the Enquiry Committee were forwarded to the Deputy Chief Commercial Officer who sent it again to the Chief Commercial Officer. The management considered the enquiry report and came to the conclusion that the workman was guilty of the charges proved against him and that he should be dismissed in the absence of any extenuating circumstances. The company thereafter dismissed the workman concerned by order dated August 3, 1976, and offered him one month's wages in terms of Section 33(2)(b) of the Industrial Disputes Act. The company, on the same day, submitted an application to the conciliation officer and Joint Labour Commissioner, Government of West Bengal, for approval of the action taken as it might be contended that certain industrial disputes between the company and its workmen were pending before him. It was accordingly prayed that the approval should be given to the action taken by the company dismissing the workman as stated above.
(2.) THIS application came up before P. C. Sen, conciliation officer and Joint Labour Commissioner, Government of West Bengal, the respondent No. 1, who, though he was also the conciliation officer, was not described as such in the company's application under Article 226. P.C. Sen, as the conciliation officer, heard the parties and passed an order on April 5, 1977, on the said application. It was held that in regard to two disputes, namely, 'absence due to sickness' and 'age verification' there was no industrial disputes pending before the conciliation officer. In regard to the Charter of Demands, which was the third item of dispute, it appears the Co -ordination Committee of CESC Unions submitted a charter of demands to the Joint Labour Commissioner, West Bengal, on April 17, 1976, whereon the said Officer issued a notice to the company and the unions to attend tripartite meeting at the chamber of the Labour Minister at Writers Buildings on April 26, 1976, for discussion. After protracted discussion, a settlement was reached on February 10, 1977, in respect of some disputes and there was another tripartite settlement which was signed on March 31, 1977, in respect of some other disputes. The conciliation officer further stated in his said order that a report under Section 12(4) of the Industrial Disputes Act was submitted by him, when at one stage, prospect for the settlement seemed to be bleak. This report was filed in the month of November, 1976, to the Labour Department, Government of West Bengal. It was held that the company dismissed the workman from service on August 3, 1976, during the pendency of the conciliation proceeding in respect of certain dispute particularly on the charter of demands and, therefore, the company's contention in respect thereof was erroneous and provisions of Section 33(2)(b) were attracted in this case. The order concluded with the following directions: the undersigned as a conciliation officer, therefore, deemed it fit to order that the company's preliminary objections regarding coverage under Section 33(2)(b) of the Industrial Disputes Act are not tenable in law and in fact. The CESC management and the worker concerned are, therefore, requested to appear before the undersigned for further hearing of the case on 22 -4 -77 at 3 -30 p.m. The petitioner moved this Court against this order on June 9, 1977, and obtained a rule calling upon the respondent No. 1, P. C. Sen, the Joint Labour Commissioner of the Government of West Bengal, the workman as also the State of West Bengal to show cause why a writ in the nature of certiorari should not be issued setting aside, cancelling or quashing the order dated April 5, 1977, passed by the respondent No. 1 and also why a writ in the nature of prohibition should not be issued commending them not to proceed further in the said application or to exercise jurisdiction in any manner in respect thereof. There was, it appears, a stay of further proceeding in the meantime till the disposal of the rule. Cause was shown by the workman stating that at the time of his dismissal there was a conciliation proceeding pending which terminated in the two settlements mentioned above. As the conciliation was pending the company made an application under Section 33(2)(b) of the Industrial Disputes Act. There was an affidavit -in -opposition affirmed by the said P.C. Sen, the Joint Labour Commissioner, respondent No. 1, on July 28, 1977, in which it was stated that pursuant to the notice given on the charter of demands dated April 17, 1976, reference was made to the tripartite level for fresh conciliation in accordance with the bipartite agreement dated June 28, 1975. It was stated further therein as follows: .The subsequent meetings and conferences before the Labour Minister, Government of West Bengal, where in most cases the conciliation officer was present were a part of the conciliation proceedings by the Conciliation Officer. Section 12(2) of the Industrial Disputes Act provides that the Conciliation Officer may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the disputes. Meetings and conferences before the Labour Minister, Government of West Bengal, do and did in the instant case form a part of my attempt to induce the parties to come to a fair and amicable settltment of the disputes. It was further stated that the conciliation proceedings were continuing and in the midst of such proceedings some restive workers took some form of action in the context of which a partial settlement of the charter of demands was reached on February 10, 1977, in course of conciliation proceedings and signed by the conciliation officer and this was followed by another settlement on March 31, 1977. All these documents were signed by the deponent P.C. Sen as the conciliation officer with the full knowledge of the parties. It was further stated that the report under Section 12(4) was submitted by the conciliation officer to the Government of West Bengal on November 11, 1976 and the subsequent meetings of the Labour Minister did not make it a bad report as alleged by the company.
(3.) THE company filed an affidavit -in -reply to the affidavit of the workman but it appears no affidavit -in -reply was filed to the affidavit -in -opposition of P.C. Sen, the Joint Labour Commissioner.;