Calcutta High Court (Appellete Side)
The Workmen Of Navnil Enterprise vs Indian Oil Petronas Private Limited And ... on 7 June, 2017
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
Mns/skc
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Rakesh Tiwari
And
The Hon'ble Justice Shivakant Prasad
M.A.T. 38 of 2017
with
C.A.N. 296 of 2017
with
C.A.N. 298 of 2017
The workmen of Navnil Enterprise
...appellant/respondent
Vs.
Indian Oil Petronas Private Limited and others
...Respondents
Heard on : 07-06-2017.
Judgment on : 07-06-2017.
Rakesh Tiwari, J.
Re: C.A.N. 296 of 2017.
None appears on behalf of the appellant as well as the respondents due to cessation of work pursuant to a resolution adopted by the Advocates in the respective Bar.
We find from the letter dated 05/06/2017 by the honorary Secretary, Bar Association that the Advocates of Calcutta High Court have ceased work and the court may pass necessary orders at their discretion. The information reads :
"This is to inform My Lord the Hon'ble the Chief Justice and His companion Justices of the said Hon'ble Court that in an emergent Urgent General Meeting in terms of Rule 22 of the rules of the Bar Association, High Court Calcutta held today at Bar Association Room No. 2 at 11 a.m., it was unanimously decided by the General Body of the Association that due to the sweltering heat particularly when the mercury is soaring more or less between 400C to 420C on an average it is becoming very difficult for the members to discharge their functions in this sweltering heat. It was also decided that working in this sweltering heat with the Court and Gown is detrimental to the health of the Advocates.
The General Body of the Association considering what has been stated above unanimously decided 'that due to the sweltering heat the Advocates would not participate in any judicial proceeding from 06/06/2017 to 12/06/2017, during which period the Bar Association will also remain closed and to this effect the Hon'ble the Chief Justice and His companion Justices may be requested not to pass any adverse order or orders subject to the discretion of Your Lordships, not to dismiss any matter, not to take up any matter ex parte and not to delist any listed mater in absence of the Ld. Advocates appearing for the respective parties without taking amiss of the request made above. It was also decided that the Bar Association would hold a meeting on 12/06/2017 at 11 a.m. in Bar Association Room No. 2 to review the situation.
I, on behalf of the Bar Association while communicating My Lord the decision of the General Body of the Bar Association would beseech Your Lordship and the other companion Justice of Your Lordships Court not to pass any adverse order or orders subject to the discretion of Your Lordships, not to dismiss any matter, not to take up any matter ex parte and not to delist any listed matter in absence of the Ld. Advocates appearing for the respective parties without taking amiss of the request made above.
We beseech to Your Lordship."
The Bar rooms have been locked by the office bearers. They have a right to request their members to protect the rights of their body, but locking of rooms in court premises or restraining the litigants or any private parson from court is not proper. This amounts to forcefully bringing the judicial working to a halt and appears to be contemptuous. However, without any prejudice we take up the application, being C.A.N. 296 of 2017, filed under Section 5 of the Limitation Act, 1963 for condoning the delay of 220 days in preferring the appeal against the judgment and order dated April 8, 2016, is taken up for hearing.
Considering the averments made in the application, we find that sufficient cause has been shown in the application for condonation of delay. Therefore, the delay of 220 days in preferring the appeal is condoned. The application, being CAN 296 of 2017, is allowed.
Let the appeal be registered, if it is otherwise in form.
Re: M.A.T. 38 of 2017 This appeal has been preferred by the workmen of Navnil Enterprise represented by the Indian Oil Petronas Pvt. Limited Shramik Union challenging the correctness of the impugned order and judgement dated April 8, 2016 passed by the learned Single Judge allowing the writ petition, being W. P. No. 18127(w) of 2014 (Indian Oil Petronas Private Limited Vs. Union of India and others).
Facts of the case are that writ petition being W.P. 18127 (W) of 2014 (Indian Oil Petronas Private Limited vs. Union of India and Others) was preferred wherein the petitioner is a private company having an L.P.G. import and export terminal at Haldia till August 4, 2011. One Ramalesh Das carrying on business in the name and style of Navnil Enterprise, respondent no. 3 in the writ petition (the appellant herein) was engaged by the petitioner as a contractor to carry out the work of operation and maintenance of its bottling plant and statutory testing plant at Haldia. It appears from the record that vide letter dated August 4, 2011 the company had terminated its contract with the respondent no. 3 in the writ petitioner with immediate effect. It also appears that the respondent no. 3 had also terminated the employment of its workmen employed by him to discharge its contractual obligation in respect of the plant in question as aforesaid. This gave rise to an industrial dispute between the parties. The conciliation proceeding having failed the Central Government vide order dated June 4, 2012 referred the following matter of dispute to the Central Government Industrial Tribunal-cum-Labour Court, Kolkata.
The matter of reference reads thus:
"Whether an action of the management of M/s. Navnil Enterprise, an agency of M/s. Indian Oil Petronas Private Limited, Midnapore(East), West Bengal in termination of the service of Sanjoy Guria and nine others (as per list attached) by virtue of order/letter no. IPPL/HAL/ST Plant dated 04.08.2011 of M/s. Indian Oil Petronas Private Limited with effect of 08.08.2011 is legal and justified? What relief the workmen are entitled to?"
Perusal of the record shows that an application was moved on behalf of the workers for adding the petitioner/ Indian Oil Petronas Private Limited as a party to the dispute which was allowed by the Tribunal vide order dated March 12, 2014 adding the writ petitioner/company as a party to the reference case. It is this order passed by the Tribunal as well as the order of reference which was subject matter challenged by the said company in the writ petition.
The writ petition was contested by the workmen represented by the Indian Oil Petronas Private Limited Shramik Union on the ground that it was not maintainable as the finding of facts reached by the Tribunal sought to be raised is not permissible in the writ petition under Article 226 of the Constitution of India. It also challenged the fact that the contractor/ M/s. Navnil Enterprise did not have the requisite license under Section 12 of the Contract Labour (Regulation and Abolition) Act to carry out the work on behalf of the petitioner company.
The aforesaid objection of the Union was denied by the petitioner in their reply. The writ court after noticing the contentions of the parties and taking into consideration the provisions of statute applicable to the facts and circumstances and the law cited by the parties held that:
" a careful examination of the order impugned cannot leave any doubt that not only the order is an unreasoned one, there is absolutely nothing in the order why the Tribunal had considered the petitioner a necessary party to the proceeding before it."
Taking note of the admitted facts that the contractor of the petitioner is Navnil Enterprise where contract had been terminated by the petitioner due to closure of its plant and that contractor had terminated the service of the workmen. Therefore, on examining the issues in the backdrop of these undisputed facts the court was of the opinion that it was difficult to find why in a dispute between Navnil and its workmen must the petitioner (Indian Oil Petronas Private Limited) figure as a necessary party or why its presence is considered necessary for the adjudication of the proceeding. The Writ Court in the circumstances was of the view that the Presiding Officer of the Labour Court appears to have wrongly proceeded primarily on the basis that the management had not specifically submitted that the petitioner was a necessary party or its presence was required for proper adjudication; and, secondly, on the basis that a Tribunal always has the power to summon the necessary party if not mentioned in the order of reference and can ignore the party which has been wrongly mentioned whatsoever may be the facts and circumstances of a case.
After considering the ratio of the judgments cited by the parties, the court held :
"There is no denying that the Tribunal has not discussed anything about the facts and circumstances of the case leading to the inexorable conclusion that the writ petitioner was a necessary party to the proceeding, except that the present respondent no. 4 had taken out an application for addition of a party and the management of Navnil Enterprise had opposed it.
Except the faint reference to this, there is no discussion either of the facts of the case or how the presence of the petitioner is necessary for the adjudication of the dispute. As such, discussion regarding the facts and circumstances claimed to have been made in the order impugned appears to be more a claim than reality."
On examining the difference between an agent and an agency and the applicability in the case of reference, the court held :
"The subtle difference, though frequently overlooked or slightly underplayed, between an agent and an agency is a relevant consideration for the present purpose. An agent is one who acts for his principal and represents him before others whereas, as laid down in the judgment referred to above, if the Government acting through its officers was subject to certain constitutional limitations, a fortiori, the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. Otherwise the Government would be enable to overwrite the fundamental rights by adopting this stratagem of carrying out its function through the instrumentality or agency of a corporation while retaining control over it.
That apart, the letter written on behalf of the writ petitioner to the respondent no. 3 makes it very clear that in view of the operational difficulties and unviability in running of the LPG Cylinder Statutory Testing Plant at IPPL, Haldia, it had decided to discontinue the statutory testing plant activities there with immediate effect. How, if on the basis of such communication the respondent no. 3 had terminated the employment of its workmen, the petitioner becomes a necessary party in a dispute between the respondent no. 3 and its workmen is difficult to appreciate. The Tribunal below also decided not to enter into the issue and come to any finding before it concluded that the presence of the petitioner is necessary in the present dispute."
The Court further held that the ratio of the judgement decided in the case of Hochtief Gammon Vs. Industrial Tribunal, Bhubaneswar, Orissa and others reported in 1964(II)LLJ 460 and in the case of Steel Authority of India Limited Vs. Hindustan Steel Employees Union and others, reported in 1997 LAB. I.C. 987 are not applicable as these facts and circumstances in which those judgments have been given were clearly distinguishable from the facts and circumstances of the case in hand before this Court. The Court, therefore, recorded a finding that this is not the position in law and this can never be so. In order to exercise the power, the court has to decide why it is in the facts of that particular case necessary that such power should be exercised. The writ court also found that there is no discussion whether the petitioner has a direct or substantial interest in the subject matter of reference or whether its presence is necessary for answering the issues arising out of it. Noticing the fact that the only observation about the merit of the case is that the management of the respondent no. 3 had not specifically submitted that the petitioner was not a necessary party. This fact had been dealt with by the Court in its earlier paragraph of the judgment. The Court also noticing that without amending the terms of reference the application of addition of party could not be allowed and the union was required to approach the concerned Ministry for addition of party. There was a valid objection to an application for addition of party and the court came to a conclusion that the management had factually, specifically and unequivocally opposed the prayer of addition of party by the union of the respondent no. 3. The Tribunal had committed an error in law ignoring this fact by addition of the petitioner as party to the reference without giving an opportunity of being heard as there was no employee and employer relationship with the petitioner/company and the workers of Navnil Enterprise who were given contract which had subsequently closed.
On perusal of the judgment it also appears that the court has observed that the Tribunal had approached the issue from an incorrect perspective inasmuch as a party cannot be added as a necessary party to a proceeding upon the failure of the respondent to show that it is not a necessary party. The onus entirely and exclusively lies on the applicant who seeks an affirmative in the form of a judicial order of its contention.
Therefore, we find that the writ court has given good, sufficient and logical reasons for allowing the writ petition impleading Indian Oil Petronas Private Limited as a necessary party to the proceeding. Lastly, it appears that there is no illegality or infirmity in conclusion of the Court that order of addition of party has not been quashed. It is delinked from the case and loses it locus to challenge the case against him. We find that as the order of Tribunal is a well reasoned one within the four corners of law, it do not require any interference by this Court. Since the writ petition was against an interim order and this appeal challenges the judgment and order upon issuing interim order, there is no substantial change in the industrial dispute except that M/s. Navnil Enterprise is not a party and the dispute can be adjudicated between M/s. Navnil Enterprise and Indian Oil Petronas Private Limited.
With the above observations, the appeal is dismissed. Consequently, the stay application, being CAN 298 of 2017 is also dismissed.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties.
( Rakesh Tiwari, J. ) ( Shivakant Prasad, J.)