Calcutta High Court (Appellete Side)
M/S. Tata Chemicals Ltd vs Learned Third Industrial ... on 27 September, 2022
7 IN THE HIGH COURT AT CALCUTTA
27.09.2022 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct 550 APPELLATE SIDE
WPA 1596 of 2018
M/s. Tata Chemicals Ltd.
Vs.
Learned Third industrial Tribunal & Ors.
Mr. Ranjay De,
Mr. Basabjit Banerjee
... For the petitioner.
Mr. Partha Pratim Roy,
Mr. Salil Kumar Maiti,
Ms. Pinki Saha
... For the respondent no.4
The present writ application has been filed inter alia
challenging the order dated 20th September, 2017, passed
by the Third Industrial Tribunal, being the respondent
no.1, by which the petitioner has been added as a party in
connection with case no. VIII-44 of 2015 arising out of
reference dated 16th November, 2015 made by the
Appropriate Government.
Mr. De, appearing in support of the aforesaid
application submits that the respondent no.4 was engaged
by the respondent no.3. At the instance of the respondent
no.4 the Appropriate Government by an order dated 16th
November, 2015 referred the disputes raised by the
respondent no.4 to the Third Industrial Tribunal, West
Bengal by framing the following issues:-
(1) Whether the superannuation of the workman,
Sri Jamal Khan with effect from 1st April, 2014 is
justified?
(2) What relief, is he entitled to?
Drawing attention to this Court to a summons
issued in Form D-3 (in terms of Rule 20 D(2) proviso)
bearing memo no.3960 LT dated 22nd November, 2016, it
is submitted that the petitioner had been summoned to
show cause as to why the petitioner shall not be brought
on record in Case No. VIII-44 of 2015 as party in order to
enable the Third Industrial Tribunal effectually and
completely adjudicate upon and settle all questions
involved in the dispute. The application for addition of
party was filed at the behest of the respondent no.3, being
the employer of the respondent no.4. Mr. De submits that
the petitioner had objected to the show cause by filing a
reply. It was, inter alia, brought to the notice of the
Tribunal, that the petitioner had no employee-employer
relationship with the respondent no.4 and that the
petitioner was neither a proper not a necessary party in
such proceedings. Mr. De submits, that the Tribunal
despite taking note of the fact that the petitioner had no
contractual relationship with the respondent no.4, ordered
the petitioner to be added as a additional party to such
proceedings, inter alia, on the ground that the presence of
the petitioner, may be necessary to effectually and
completely adjudicate upon and to settle all the questions
and issues involved in the dispute. Mr. De submits that
the aforesaid order passed by the Tribunal is perverse.
The aforesaid order has been passed with complete non-
application of mind. The Tribunal did not take note of the
provisions of Rule 20 D of the West Bengal Industrial
Disputes Rules, 1958 and by adding the petitioner as
party has occasioned complete failure of justice. The
petitioner is neither a necessary nor a proper party and
there is, admittedly, no contractual relationship between
the petitioner and the respondent no.4. Mr. De, by placing
reliance in the case of General Manager, Electrical
Rengali Hydro Electric Project, Orissa vs. Giridhari
Sahu, reported in (2019) 10 SCC 695, submits that this
Hon'ble Court in exercise of its jurisdiction under Article
226 of the Constitution of India has the power and
authority to correct the jurisdictional excess and/or
jurisdictional errors. Mr. De submits that the order passed
by the respondent no.1 suffers from jurisdictional excess
as also the jurisdictional error inasmuch as an employee-
employer relationship forms the basic foundation of an
industrial dispute as defined under Section 2(k) of the
Industrial Disputes Act, 1947 (hereinafter referred to as
the "said Act'). The power to refer such disputes for
adjudication is also limited to the employers and
employers or between employers and workmen and/or
workmen and workmen with regard to the employment or
non-employment or terms of employment or with the
conditions of labour of any person. The same does not and
cannot include a workman and a third party and for that
sake, the principal employer. According to Mr. De, the
respondent no.1 committed jurisdictional error in adding
the petitioner a party to the proceedings and this Court
has the jurisdiction and/or authority to correct such
errors in exercise of it high prerogative writ jurisdiction
under Article 226 of the Constitution of India.
Per contra, Mr. Roy, appearing for the respondent
no.4 submits that the application for addition of party has
not been filed by his client. The application for addition of
party has been filed by the respondent no.3, who is his
employer. He, however, questions the authority and/or
jurisdiction of this Court to entertain the present writ
application under Article 226 of the Constitution of India.
Mr. Roy submits that since the High Court is exercising
power of superintendence over the Tribunal this Court in
exercise of powers under Article 226 of the Constitution of
India, ought not to exercise its jurisdiction over the
respondent no.1, over whom the power of superintendence
has been extended as would appear from diverse
judgments of the Hon'ble Supreme Court. In support of
his contention, he relies on the case of Surya Dev Rai vs.
Ram Chander Rai reported in (2003) 6 SCC 675; in the
case of Jogendrasinhji Vijaysinghji vs. State of Gujarat
reported in (2015) 9 SCC 1 and in the case of Radhey
Shyam & Anr. vs. Chhabi Nath & Ors. reported in
(2015) 5 SCC 423. By placing reliance on the aforesaid
reports he submits that the power of superintendence
under Article 227 of the Constitution of India has been
extended over Tribunals and as such this Hon'ble Court
ought not to exercise its extraordinary jurisdiction under
Article 226 of the Constitution of India. He, however, at
the same breath does not question the authority of this
Court to correct the jurisdictional errors under Article 226
of the Constitution of India in case of issuance of a writ of
certiorari.
I have considered the submissions made by the
advocates appearing for the respective parties and I find
force in the submissions made by Mr. De with regard to
the jurisdiction and/or authority of an Industrial Court to
decide an industrial dispute as defined in Section 2(k) of
the said Act. I am of the view, that the Tribunal can only
assume jurisdiction in respect of a dispute inter se
between the employee and the employer and not between
the third party and an employee or a third party and an
employer. I find that the respondent no.1 was conscious of
the fact that the petitioner has no contractual relationship
(employee-employer) with the respondent no.4. The order
passed by the Appropriate Government also does not refer
to the petitioner as the employer of the respondent no.4.
Further the reference does not relate to Contract Labour
(Regulation and Abolition) Act, 1970 (hereinafter to as the
'Contract Labour Act').
There is no reasoning provided in the order as to
why the presence of the petitioner is necessary to
effectually or completely adjudicate upon or for settling
the questions in dispute.
The order passed by the respondent no.1 appears to
be a mechanical without application of mind.
On the issue of jurisdiction of this Court to
entertain an application under Article 226 of the
Constitution of India, I am of the view, that this Court in
exercise of its powers, by issuing a writ of certiorari is
competent enough to correct jurisdictional errors. I find
support from the judgment of the General Manager,
Electrical Rengali Hydro Electric Project, Orissa (supra).
It would be appear from the aforesaid decisions,
where there has been jurisdictional error committed by a
tribunal or a body, such an error in my view is amenable
to certiorari jurisdiction as a writ of certiorari can be
issued where a jurisdictional error is clearly established. A
jurisdiction error may be from failure to observe the limits
of its jurisdiction or may arise from procedure adopted by
the body after validly assuming jurisdiction. It may also be
on account of the violation of the principle of natural
justice. There may be other instances that writ of
certiorari can be issued. In the instant case, it is
apparent on the face of the records that despite there
being no employee-employer relationship in a dispute
limited to an employee and employer which does not also
concern a dispute under Contract Labour Act the
petitioner has been robed in and has been made a party to
the present proceedings. Such a decision, in my view is an
error in excess of jurisdiction. Although the authority at
the first instance had the jurisdiction to decide upon the
disputes between the respondent no.3 and the respondent
no.4, the said authority had exceeded in its jurisdiction,
while adding the petitioner as party, notwithstanding the
petitioner having no contractual relationship (employee-
employer) with the respondent no.4.
Since, the respondent no.3 remain unrepresented,
despite service, let the records of this case, being No.VIII-
44/2015 be called for. Pending hearing of the instant writ
application, there shall be a stay of all further proceedings
in Case No. VIII-44/2015 pending before Third Industrial
West Bengal.
The Department is directed to communicate the
aforesaid order to the office of the learned Third Industrial
Tribunal for compliance of this order.
Let this matter appear under the same heading two
weeks after the Puja vacation.
(Raja Basu Chowdhury, J.)
