Calcutta High Court (Appellete Side)
Santragachi Co-Operative Bank Ltd. & ... vs The State Of West Bengal & Ors on 18 July, 2013
Author: Harish Tandon
Bench: Harish Tandon
1
18 18.07.13 W.P. 19536 (W) of 2013
akd
Santragachi Co-operative Bank Ltd. & Anr.
Vs.
The State of West Bengal & Ors.
--------
Mr. Jayanta Dasgupta, Mr. Rananesh Guha Thakurta.
... for the petitioners.
Mr. D. Saha Roy, Mr. Indranath Mitra.
... for the respondent nos. 3 and 4.
Mr. N. C. Bhattacharyya, Mr. Syed Mosihar Rahaman.
... for the State.
Heard the learned counsel for the parties.
The writ petition is at the instance of the Co- operative Bank assailing the order no. 23 dated January 31, 2013 passed by the 1st Industrial Tribunal, West Bengal in case no. VIII-41/2011 whereby and whereunder an application for fixation of a date for hearing the preliminary points, is disposed of.
The main thrust of the argument advanced before this Court by the learned counsel for the petitioners is that an application was filed by the petitioner for fixation of a date for hearing of those preliminary points, but instead of fixing the date, the Tribunal has proceeded to decide those preliminary points. It is further contended that the Tribunal has not afforded the fullest opportunity of hearing to the petitioner and, therefore, the decision is an outcome of violation of the principles of natural justice.
The dispute relates to the entitlement of the 2 Dearness Allowance at a particular rate in terms of a memorandum of settlement arrived between the petitioner-Bank and its employees through the Union under Section 2(P) read with Section 18A of the Industrial Disputes Act, 1947. The appropriate Government made a reference to the Tribunal by framing the following issues :
(a) Whether the calculation of Dearness Allowance for their employees by the management of M/s. Santragachi Co-operative Bank Ltd. is proper?
(b) What relief, if any, are the employees entitled to?
A statement of claim has been filed by the Union before the Tribunal and the petitioner has also availed the opportunity to file its written statement.
Apart from the dispute relating to the merit of the claims made by the employees, preliminary points were taken relating to the maintainability of the proceeding as well as the competence of the Tribunal to decide the reference.
First of the objections which the petitioner took in the written statement is that they are governed by the West Bengal Co-operative Societies Act, 2006, which provides the mechanism for settlement or resolution of the disputes and, therefore, the Industrial Disputes Act, 1947 should not be made applicable.
The second preliminary objection raised is that the point of reference does not fall within the definition of the Industrial Dispute and the third 3 objection, which is taken in an alternative form, is that the reference cannot be made under Section 10 of the said Act, but the dispute can be resolved under Section 33C (2) of the said Act.
Although the application which is filed by the petitioner suggests the prayer that an order was solicited for hearing of all the preliminary points before the disposal of the other issues relating to the merits, the opening sentence of the impugned order indicates that the date, on which the said order was passed, was fixed for such purpose, meaning thereby that the hearing was already held prior thereto.
It appears that all the points which are raised as preliminary points have been dealt with and disposed of by passing the reasoned order. The Writ Court is not concerned with the decision, but certainly concerned with the decision making process.
With regard to the point that the petitioner is amenable to the provisions of the West Bengal Co- operative Societies Act, 2006, the Tribunal considered the judgement of 7 Judges Bench of the Apex Court in case of Bangalore Water Supply vs. A. Rajappa reported in 1978 (1) LLJ 349, wherein it is held that the definition of industry cannot be distorted and the Co-operative Society should be considered as an industry because of the payment of wages to the member employees. The Tribunal further took note of the judgement of this Court in case of Co-operative Milk Societies Union Ltd. vs. State of West Bengal & Ors reported in 1958 (2) LLJ 61 wherein the dispute relates to the wages, wage scale and Dearness Allowance between the Co-operative Society and its employees does not relate to the 4 business of the Co-operative Society and, therefore, the same does not affect the rights of the aggrieved employees to take recourse under the Industrial Disputes Act.
Additionally this Court also finds that the Co- operative Bank has submitted to the jurisdiction of the Industrial Disputes Act, which could be culled out from the memorandum of settlement entered between the Bank and the Union of its employees under Section 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947.
Clause 26 of the said memorandum of settlement clearly provides that the union shall have a right to ventilate the grievance as industrial dispute. Once the petitioners have submitted to the jurisdiction under the Industrial Disputes Act and have reap the benefit by way of memorandum of settlement, it cannot take a rebound and contend that the provisions of the Industrial Disputes Act does not apply.
The other point relating to applicability of Section 10 and Section 33 C (2) of the Industrial Disputes Act is concerned, the Tribunal, in my considered view, has correctly recorded that power under Section 33C (2) of the said Act is exercisable by the Labour Court, which acts as an Executing Court.
Learned counsel appearing for the petitioners submits that although the Labour Court exercises the power as an Executing Court, but certainly enjoys the power to interpret the award or the settlement on which the rights of the parties rest and 5 in support thereof a reliance is placed upon a judgement of the Supreme Court in case of Municipal Corporation of Delhi vs. Ganesh Razak & Anr. reported in 1995 (1) LLJ 395. The said case relates to a claim under the 'Sastry Award'. The proceeding under Section 33 C (2) was initiated and an objection was raised that there has been an express provision under Section 36A of the said Act for the purpose of interpretation and the same is outside the purview of Section 33 C (2) of the said Act.
The Apex Court pointed out the difference in the scope of the aforesaid sections in the following words :-
"This Court pointed out the difference in the scope of Section 36A and Section 33C(2) indicating that the distinction lies in the fact that Section 36A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33C(2); and whereas Section 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, Section 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under Section 36A. In this context, this Court also indicated that the power of the Labour Court in a proceeding under Section 33C(2) being akin to that of the Executing Court, the Labour Court is competent to interpret the award or settlement on which a workman bases his claim under Section 33C(2) , like the power of the Executing Court to interpret the decree for the purpose of execution. Relevant extract from that decision is as under :- (at 96):
'Besides, there can be no doubt that when the 6 Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Curt to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go beyond the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under S. 33C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under S. 33C(2) , it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests.' This decision itself indicates that the power of the Labour Court under Section 33C(2) extends to interpretation of the award or settlement on which the workman's right rests like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents."
In this context the reference could be made to the issues framed by the State Government and sent to the Tribunal for adjudication relating to the entitlement of the employees to have the higher rate of Dearness Allowance and whether the calculation made by the petitioner-Bank is proper or not.
7Therefore, since the right to have the higher rate of Dearness Allowance is yet to be decided and determined, Section 33C(2) cannot be pressed in view of the ratio laid down in case of Ganesh Razak (supra).
As a last resort the petitioners tried to contend that third schedule appended to the Industrial Disputes Act does not provide the dispute referred to it to be a matter within the jurisdiction of the Industrial Tribunal. According to the petitioner it should come within 2nd schedule of the said Act, which pertains to the matter within the jurisdiction of Labour Court.
The aforesaid point is neither taken before the Tribunal nor pleaded in the written statement or in an application filed by the petitioner. It may be pointed out that serial 2 of the 3rd schedule relates to compensatory and other allowances, which definitely imbibe within itself the matter relating to the Dearness Allowance and, therefore, the contention of the petitioner that the matter does not cover within 3rd schedule is not correct.
This Court does not find that the manner in which the Tribunal has decided the said application is improper and violative of principles of natural justice.
The writ petition is thus dismissed.
However, in view of the anxiety perpetrated at the instance of the petitioners that the matters are being dragged before the Tribunal, this Court 8 requests the Tribunal to take utmost care to expedite the said matter and shall see that the same is disposed of within six months from the date of communication of this order.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied on priority basis.
(HARISH TANDON, J.)