Calcutta High Court (Appellete Side)
Smt. Swapna Adhhikari vs The State Of West Bengal & Ors on 20 March, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present :
The Hon'ble Justice Soumen Sen
W.P. No.22991(W) of 2013
Smt. Swapna Adhhikari
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Hiranmoy Bhattacharyya,
Mr. Tanmoy Mukherjee
Mr. Raghunath Das
For the respondent No.3 : Mr. Dipak Kr. Ghosh,
Mr. Ranajay De Heard on : 13.02.2014 Judgment on : 20th March, 2014 Soumen Sen, J.:- The subject matter of challenge in this writ petition is an impugned award passed in Case No.04/2012 under Section 2-A(2) of the Industrial Disputes Act, 1947 by the Second Labour Court.
The reference was dismissed on the ground that the application has been filed beyond the period of three years from the date of alleged termination.
The writ petitioner was an employee of the opposite party No.3 since January, 1983 till July 31, 2005.
According to the petitioner, she was forced to take voluntary retirement on threat that if she refused to sign the letter accepting voluntary retirement, her services would be terminated and criminal charges would be levelled against her. The petitioner under duress signed such letter but immediately thereafter, she asked for reinstatement. The employer, it is alleged, also did not pay her lawful dues. The petitioner immediately lodged a complaint with the employer when she was assured by the said respondent on 31st December, 2005 that her grievances would be considered. On 21st June, 2010 after a gap of more than four years, the petitioner made a detailed representation to the respondent No.3 demanding reinstatement. In between she made few oral representations to the said respondent No.3. The president of the said respondent No.3, however, rejected such representation whereupon she filed an application on 5th October, 2010 before the Labour Commissioner for conciliation. However, such conciliation failed and the Labour Commissioner closed the conciliation proceeding and sent her failure report to the Government on 19th October, 2011. The petitioner thereafter in January, 2012 filed an application under Section 2(2A) of the I.D. Act before the learned Second Labour Court for adjudication of the dispute raised by her.
The learned Second Labour Court framed following five issues for adjudication:-
1) Is the written statement filed by the applicant u/s 2(2A) of the I.D. Act maintainable in its present form and prayer?
2) Is the applicant forced to take voluntary retirement from her service?
3) Is the termination by way of voluntary retirement was forceful and under the dictation of the O.P. Management?
4) Is the applicant entitled to get relief as prayed for?
5) To what other relief/reliefs if any to which the applicant is entitled as per law and equity?
It appears that the Learned Presiding Officer dismissed the said petition on the ground that the petitioner has failed to produce any document to show that the management forced her to take the benefit of VRS on 31st July, 2005. The Presiding Officer was of the view that in view of the amendment of Section 2-A of the Industrial Disputes Act which provides that in the case of any discharge, dismissal, retrenchment or termination otherwise of the services of an individual workman then such termination will be deemed to be an industrial dispute capable of adjudication in the manner prescribed in sub-sections (2) and (3) of the said section. The limitation for filing such application for adjudication of such dispute before the Labour Court/Tribunal is prior to the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub- section (1).
In the instant case, since the petitioner remained silent for a period of 5 years after receiving all the benefits of the VRS and thereafter without any specific reason, she filed the instant case raising allegations as regards coercion by the management, the Issue No.1 was decided against the petitioner and, accordingly, the said application was dismissed and the award of the Ld. 2nd Labour Court to that effect was duly published in terms of Section 17 of the Act.
This writ petition is directed against that order.
As the Industrial Disputes Act originally stood the State Government as the "appropriate Government" was only competent to make reference to the Industrial Tribunal or the Labour Court as the case may be under Section 10 for adjudication of existing or apprehended industrial dispute. This single counter adjudication mechanism under Section 10 undergone quantum shift by West Bengal Amendment Act 33 of 1989 inserting S.10(1B) effective from 8th December, 1989 and by the Central Amendment Act 35 of 1965 inserting Section 2A effective 1st December, 1965 and by further amendment of Section 2A inserting sub-sections (2) and (3) to the said Section 2A compactly conferring right to an individual workman to directly approach the Industrial Tribunal/Labour Court for adjudication of this individual dispute arising out of his dismissal, discharge, retrenchment or otherwise termination of his service in the manner and within the time specifically prescribed therein.
For convenient reference Section 2-A and said Section 10(1B) are reproduced hereinbelow:-
S.2-A. Dismissal etc., of an individual workman to be deemed to be an industrial dispute. - [(1)] Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.] [(2)] Notwithstanding anything contained in Section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.
(3) The application referred to in subsection (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1)].
"S.10(1B)(a) Notwithstanding anything contained elsewhere in this Act, where in a conciliation proceeding of an industrial dispute relating to an individual workman, no settlement is arrived at within a period of sixty days from the date of raising of the dispute, the party raising the dispute may apply to the conciliation officer in such manner and in such form as may be prescribed, for a certificate about the pendency of the conciliation proceedings.
(b) The conciliation officer shall, on receipt of the application under clause (a), issue a certificate within seven days from the date of receipt in such manner, in such form and containing such particulars as may be prescribed. A copy of the certificate shall also be sent to the appropriate Government for information.
(c) The party may, within a period of sixty days from the receipt of such certificate or, where such certificate has not been issued within seven days as aforesaid, within a period of sixty days commencing from the day immediately after the expiry of seven days as aforesaid, file an application in such form and in such manner and with such particulars of demands as may be prescribed, to such Labour Court or Tribunal as may be specified by the appropriate Government by notification. Different Labour Courts or Tribunals may be specified for different areas or different classes of industries.
(d) The Labour Court or Tribunal specified under clause (c) shall, within a period of thirty days from the date of receipt of an application under clause (c), give a hearing to the parties and frame the specific issues in dispute, and shall thereafter proceed to adjudicate on the issues so framed as if it were an industrial dispute referred to in sub-section (1)."
The object and purpose of enacting the said Section 2A is to confer a right to an individual workman to seek relief against discharge, dismissal or otherwise termination of this service independently where such dispute was not sponsored by other workman or espoused by Union of workman. Prior to coming into effect of Section 2A, the dispute arising out of dismissal of an individual workman was not considered as an industrial dispute unless it is sponsored by the Union or a group of workman of the industry to which he belongs. In order to remove the hardship caused to a single worker, the Parliament enacted Section 2A in the Act by way of amendment vide the Industrial Disputes Amendment Act, 1965 (Act 35 of 1965). The said Amendment Act came into effect on and from 1st December, 1965. The said Act was further amended by Industrial Disputes Amendment Act, 2010 (Act 24 of 2010) provisions whereby came into effect on and from 15th September, 2010. Sub-
sections (2) and (3) were inserted to Section 2A by the said amendment of 2010. The said Amendment Act came into effect on and from 15th September, 2010. In the absence of any specific provision to the contrary the said Act 24 of 2010 is operative prospectively.
The effect of the amendment is that any workman who has been discharged, dismissed, retrenched or terminated as specified in sub- section (1) of Section 2A may make an application directly to the Labour Court or Tribunal for adjudication of his individual dispute after the expiry of forty-five days from the date the workman has made the application to the conciliation officer of the appropriate Government for conciliation of the dispute. Sub-section (3) of Section 2A lays down the time limit for making such application to such tribunal. It provides that such application to the Labour Court or Tribunal for adjudication of the dispute shall be made before the expiry of three years from the date of discharge, dismissal, and retrenchment or otherwise termination of service as specified in sub-section (1). Section 2A provides a scheme/mechanism for seeking relief "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman" within the period prescribed therein. It refers to a situation or a state of affairs and governs a dispute with regard to dismissal, discharge or retrenchment or termination which has been effected even prior to the incorporation of Section 2A. The Section governs cases where the dismissal has been effected prior to the date of this enactment.
The only relevant consideration in making a reference under Section 10 is whether an industrial dispute exists or is apprehended. Earlier to the amendment there was no prescribed period for making a reference and it was open for the tribunal to dismiss an application under Section 10 if it is a stale dispute or such tribunal was approached belatedly. The legislature, however, has introduced sub-section (3) so that the cases falling under Section 2-A, the employee approached within a stipulated time. The said sub-section (3) prescribed the time within which an application for adjudication of disputes is required to be filed before the Tribunal/Labour Court. This is the second application contemplated under the amended section. The first application is to be made before the conciliation officer. The workman is first required to approach the conciliation officer. This also appears to be the procedure under Rule 12A of the West Bengal Industrial Disputes Rules, 1958 vide Notification No.1806 - IR dated November 12, 1993. However, the tribunal under no circumstances can accept and decide any such application under Section 2A(2) after the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1). The amendments to Section 2A enabling industrial workman to seek adjudication of his dispute has been introduced only on 15th September, 2010 by when the three-year period under sub-section (3) of Section 2A had already expired.
In terms of Section 10 sub-section (1B) of the Industrial Disputes Act, 1947 as amended by the West Bengal Act, 33 of 1989 w.e.f. 8th December, 1989, it was open to an individual workman to apply to the Conciliation Officer for a certificate during the pendency of the conciliation proceedings, in the event no settlement has arrived at within a period of 60 days from the date of raising of the dispute. The Conciliation Officer thereafter on receipt of such application shall issue a certificate within 7 days from the date of receipt in such a manner as may be prescribed. The party may within a period of 60 days from the receipt of such certificate or where such certificate has not been issued within 7 days as aforesaid within a period of 60 days commencing from the day immediately after the expiry of 7 days as aforesaid, file an application in the prescribed form to the Labour Court or Tribunal as may be specified by the appropriate Government.
When the petitioner lodged the complaint with the employer on 31st December, 2005 it was open for her to take the recourse to the amended provisions of Section 10(1B) of the Industrial Disputes Act, 1947.
The amended provisions of Section 2A of the Industrial Disputes Act, 1947, in fact, echoes the provisions of Section 10(1B) as introduced by the West Bengal Amendment of the Act in 1989. The former came into effect on 15th September, 2010 and the latter on 8th December, 1989. However, the period of limitation as prescribed requires the party to approach the Labour Court or Tribunal under Section 2A before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service. However, no period of limitation is prescribed under Section 10 of the Industrial Disputes Act. Although, in an appropriate case, the appropriate Government may decline to refer the dispute for industrial adjudication if it appears to such authority that the dispute raised is a stale dispute. In fact, the petitioner at the relevant time could have followed the procedure prescribed under Section 10(1B) of the Industrial Disputes Act (West Bengal Amendment). However, in respect of all cases as specified in Section 2A, the period stands abridged now even in a proceeding under Section 10 of the Industrial Disputes Act by reason of amendment to Section 2A and the said period of limitation would apply in proprio vigore.
The moot point here is whether:-
(i) the right of the petitioner conferred under Section 2A of the Act arose and/or subsists independently, provision of Section 10(1B) notwithstanding;
(ii) for determination of the issue whether or not the instant action of the petitioner is maintainable and/or barred by limitation in the context of specific provision of Section 10(1B) and Section 2A of the Act, that is to say on and from which prescribed period of limitation begins to run;
(iii) whether in view of non-obstante clause both the provisions of Section 10(1B) and Section 2A operates concurrently or Section 10(1B) excludes or ousts the operation of Section 2A and vice versa.
The forum of the Labour Court for adjudication of industrial dispute of an individual workman could be invoked within the period of sixty days from the date of issue of certificate by the Conciliation Officer in pursuance of clause (a) and clause (b) of Section 10(1B).
Both Section 2A and Section 10(1B) provides a mechanism for adjudication of industrial dispute of an workman after failure of conciliation proceeding respectively prescribing time limit for invocation of the forum of the Labour Court.
Time stipulated for invocation of the forum of the Labour Court under sub-section (3) of Section 2A is "before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service specified in sub-section (1)" thereof. Time limit for making an application to the Labour Court stipulated in sub-section (3) of Section 2A does not appear to have a bearing to the provisions of sub- section (2) of Section 2A. In any event right conferred under Section 2A lapse immediately preceding the date of expiry of three years of the date of dismissal etc. This sub-section (3) of Section 2A operates independently, continuation of the conciliation proceeding notwithstanding.
The petitioner was dismissed from her service on and with effect from July 31, 2005 and the prescribed period of limitation of three years began to run on and from the date of termination (31st July, 2005) and expired on 30th July, 2008. Although, Section 2A(1) was enacted in 1965 (Act 35 of 1965 w.e.f. 1st December, 1965) enabling individual workman to take recourse to Section 10 of the Act for relief under sub-sections (2) and (3) of Section 2A restricting a time limit for seeking relief to Labour Court was enacted by Act 24 of 2010 which came into effect from 13th September, 2010. Since the petitioner was dismissed on July 31, 2005, the three years period under sub-section (3) of Section 2A expired on July 30, 2008 approximately two years prior to coming into effect of the said sub-section (3) of Section 2A. Hence the petitioner is not eligible to seek relief under sub-section (3) of Section 2A which was nonest on the date, its cause of action arose and continued.
In the light the discussion of aforesaid the subject petition under Section 2A is not maintainable and the Ld. Labour Court rightly dismissed the application by this award impugned herein. The subject award stands unaltered. The writ petition is dismissed. However, there shall be no order as to costs.
Urgent xerox certified copy of this judgement, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)