A.K. Sen Gupta, J. - (1.) In this application under Article 226 of the Constitution the Indian Cable Company Ltd. has challenged two orders of the Fifth Industrial Tribunal. The case of the Indian Cable Company Ltd. is that one Amar Kumar Ghosh was appointed as Assistant Engineer on 20th September, 1965. In 1976 he was promoted to managerial capacity in the scale of Rs.900/ - to Rs.1500/ - and on the determination of contract of employment his salary was Rs.3,160/ - per month. On 24th August, 1981 contract of employment was determined as he was not amenable to discipline, lost his interest and initiative in performance of his duties, late in attendance, used to remain absent without information and was arrogant and indecent with his superiors, etc. The said Amar Kumar Ghosh raised the dispute before the Assistant Labour Commissioner, West Bengal and the company by letter dated 11th December, 1981' denied the facts saying that Shri Amar Kumar Ghosh cannot be treated as a workman as contemplated under Sec. 2(s) of the Industrial Disputes Act, 1947. But the dispute was referred to the 5th Industrial Tribunal on 14th December, 1982, the issue being a follows : - whether termination of service of Shri Amar Kumar Ghosh justified? To what relief, if any, is he entitled? On 6th August, 1983 a written statement was filed by the company before the 5th Industrial. Tribunal where the following preliminary points were taken : - (a) Reference is not maintainable since there is no Industrial Dispute as Shri Amar Kumar Ghosh is not a workman as contemplated under Sec. 2(s) of the Industrial Disputes Act, 1947. (b) Reference is not maintainable as industrial dispute is non -existent as no dispute proper has been raised by Shri Amar Kumar Ghosh with the company. (c) Reference is not maintainable since the same suffers from the infirmity of non -application of mind being based on incorrect assumption. (d) Reference is not maintainable since the same is based on extraneous consideration, unrelated to the evidence on record thereby rendering the reference prima facie bad in law. (e) Reference is not maintainable since the same has been made with the prejudged presumption to the effect that Shri Amar Kumar Ghosh is a workman thereby acting quasi -judicially although the act of making a reference is an administrative act by the appropriate Government.
(2.) On 2nd December, 1983 the petition was filed praying for hearing of preliminary points raised before going into the merits of the case. On 9th May, 1984 the Fifth Industrial Tribunal passed on order holding that it is necessary to make a threshold part -adjudication of the matter. This order is under challenge.
(3.) The operative part of the said order is as follows : - " Considering all the relevant facts and the legal position 1 hold that it is really not necessary that a threshold part -adjudication of the matter should be made as prayed for by the Company in this case. Therefore, I cannot uphold the contention of Dr. Tapas Banerjee. Fix 31.5.84 for hearing on merits. The company will adduce evidence first.";