- (1.) A short, none the less very interesting, point that arises for consideration in this appeal which is directed against a judgment and order dated December 3, 1973, of Debi Prosad Pal J. (as he then was) is whether contesting of the employee's application under Section 33(2)(b) of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act') by the workmen would amount to raising of a dispute which would support a reference of an industrial dispute by the Government under Section 10(1) of the Act to the Tribunal for adjudication. For a proper appreciation of this point it is necessary to refer to the relevant facts of this case which are set out briefly hereinafter.
(2.) The Appellant, a limited liability company, has various business including an engineering business known as 'Sirocco Works' at Kalyani in the district of Nadia, which was formerly owned by Davidson of India Ltd. prior to its amalgamation with the Appellant. The Respondent No. 4 Arun Kumar Das was employed as a junior tinsmith at the Appellant's said work. By letter dated April 16, 1968, the Appellant dismissed the Respondent No. 4 for his alleged misconduct which according to the Appellant had been established at a proper enquiry held by it. It appears that the misconduct alleged against Respondent No. 4 consisted in attempting to steal a gunmetal bar weighing 21 K.Gs. from the Appellant's said foundry. As an industrial dispute between the Appellant and its workmen regarding dismissal of a workman was pending before the Fifth Industrial Tribunal on the date of dismissal of the Respondent No. 4, the Appellant made an application under Section 32(2)(b) of the Act for obtaining approval of its action in dismissing the Respondent No. 4. Respondent No. 4 opposed the said application, but the Appellant's action in dismissing the Respondent No. 4 was approved by the Fifth Industrial Tribunal.
(3.) Thereafter, it appears that the Davidson Employees' Union addressed a letter dated April 21, 1969, to the Labour Commissioner, Government of West Bengal, complaining against the dismissal of the Respondent No. 4. A copy of the said letter was also forwarded to the Appellant by the Deputy Labour Commissioner under a memorandum dated April 23, 1969, asking the Appellant to attend a conciliation proceeding. Thereafter, conciliation proceedings were held but no settlement was reached thereat. There after, at the instance of the said Union an order of reference was made by the Government for adjudication by the Fifth Industrial Tribunal. The said order of reference is in following terms: Government of West Bengal Labour Department Calcutta, the 13th September. 1969 No. 7091--I.R./IR/IIL--89/68. Order Whereas an industrial dispute exists between Messrs Andrew Yule and Company Ltd. Sirocco Works, Kalyani, Nadia and their workmen represented by Davidson Employees' Union, Workshop Road, Kancharapara, Nadia, relating to the undermentioned issue being a matter specified in the Second Schedule to the Industrial Disputes Act, 1947 (XIV of 1947). And whereas it is expedient that the said dispute should be referred to an industrial tribunal constituted under Section 7A of the said Act. Now, therefore, in exercise of the powers conferred by Section 10 of the Industrial Disputes Act, 1947 (XIV of 1947), the Government is pleased hereby to refer the said dispute to the Fifth Industrial Tribunal constituted under Notification No. SOS/IR/IR/34-2/57 dated the 11th March, 1957, for adjudication. The said Fifth Industrial Tribunal shall meet at such places and on such dates as it may direct. Issue 1. Whether the dismissal of Sri Arun Kumar Das is justified To what relief, if any, is he entitled By order of the Governor N.R. Sircar Asstt. Secy. to the Govt, of West Bengal;