Bengal Chemicals and Pharmaceuticals Ltd. & Anr. vs The State Of West Bengal & Ors.

„On close scrutiny of the materials on record including the reference I do not find the age of the concerned workmen. It can be safely presumed that the concerned workmen are able bodied persons and evidently they were terminated from service on and from 01.01.1999. Five (5) years have already rolled away. In absence of any evidence as regards employment in this intervening long period save and except the case of PW Sei Kesto Dey it can safely be said that they are not sitting idle and/or have some source of income. Of course, granting of back wages absolutely depends upon the facts an circumstances of the respective cases but unfortunately no evidence has been adduced a regards gainful employment from the end of the O.P. Company. In fact, there is no assertion on the part of the O.P. Management but just on presumption that they are in employment. I like to reiterate that on the basis of presumption already I have expressed my views that the remaining 20 workmen are not sitting idle and/or they have some source of income. Looking at its totality, I am of view that if I award @ 50% of the back wage. along with reinstatement of all the 21 workmen under reference save and except if the do not attained the age of superannuation just would be best served. Hence it is

Ordered

that the O.P. Management is directed to reinstate all the 21 concerned workmen under reference if they not attained their age of superannuation, within 60 days from the date of publication of this award and also to pay them back wages @ 50% per month from the date of their termination i.e. on 01.01.1999 till reinstatement.‟

„This industrial dispute between M/s. Bengal Chemicals and Pharmaceuticals Ltd. (A Govt. of India Enterprise) in respect of their factory at 164 Maniktala Main Road, Kolkata 54 and their workmen represented by Bengal Chemicals and Pharmaceuticals Ltd. Workers Union (Reg. No. 20992), 77/2/1. Lenin Sarani, Kolkata 19 has been referred by the Govt. of West Bengal, Labour Department, vide G.O.No.554-L.R./IR/11L-200/02(pt), dated 07.05.2008, to this Tribunal for adjudication of the following issues:-

1.

Whether termination of services of Sri Abani Chanda and 20 other workmen as per list enclosed w.e.f 01.01.1999 is justified?

2.

What relief, if any, the workmen are entitled to?‟

“25.

In the present case:-

1.

The present industrial dispute was validly referred to the Tribunal by the State Government vide Reference Order dated 18.04.2005, when the State Government was duly empowered to make such a reference.

2.

This power was vested in the State Government under Section 39 of the Industrial Disputes Act, 1947, by delegation from the Central Government vide a notification dated 3^rd July, 1998.

3.

The reference is now pending before the Tribunal for adjudication.

4.

Subsequently, the Central Government issued Notification dated 5^th May, 2008 rescinding the delegation of powers to the State Government.

26.

The competence of the referring authority is to be examined on the date of the reference, not on later developments. On the date of reference, the State Government was the "appropriate government" by virtue of delegation under Section 39 of the I.D. Act and therefore the reference was lawfully made.

27.

Once a valid reference is made, the referring government becomes functus officio, it cannot cancel or withdraw the reference.

28.

In State of Bihar v. D.N. Ganguly, AIR 1958 SC 1018, the Supreme Court was of the view that:-

“Section 10(1) of the Industrial Disputes Act, 1947, does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose. Nor can s. 21 of the General Clauses Act, 1897, vest such a power by necessary implication.”

29.

Section 39 I.D. Act permits the Central Government to delegate and to withdraw delegation, but such withdrawal operates prospectively for future matters only.

30.

Jurisdiction of Tribunal depends on the existence of a valid reference on the date it was made, later changes do not nullify it.

31.

The legal source of the Tribunal’s power in this matter is the reference order itself. So long as that order of reference is valid, the Tribunal is bound to adjudicate.

32.

Thus:-

1.

The reference in the present case was validly made and continues to subsist.

2.

The withdrawal of delegation under Section 39 of the I.D. Act by the Central Government does not affect the jurisdiction of the Tribunal over the pending dispute.

33.

As such, let the writ application now be heard on the point of the validity of the reference as the writ petitioner has raised the issue “that the reference which apparently has held that an industrial dispute exists between the petitioner and the Contractors‟ Workers Union is not an industrial dispute being not in accordance with law, as the same is not between the petitioner and its workers but has been considered for a reference as an industrial dispute between the petitioner and Contractors‟ workers, who admittedly do not have an employee/employer relationship as admittedly they are workers of the Contractors”.