Calcutta High Court (Appellete Side)
M/S. Travel Food Services Kolkata ... vs The State Of West Bengal & Ors on 4 January, 2023
4 IN THE HIGH COURT AT CALCUTTA
04.01.2023 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct 550 APPELLATE SIDE
WPA 27211 of 2022
M/s. Travel Food Services Kolkata Private Limited
Vs.
The State of West Bengal & Ors.
Mr. Mainak Ganguly
... For the petitioner.
Mr. Pinaki Dhole
Mr. Pinaki Bhattacharya
... For the State.
Affidavit of service filed in Court today is taken on
record.
Despite service, the respondent no.4, is
unrepresented.
The present writ application has been filed, inter
alia, challenging the order of reference dated 24th June,
2022, issued by the appropriate Government.
The petitioner says that the respondent no.4 was
engaged by the petitioner and was working in the
capacity of restaurant manager in a restaurant managed
by the petitioner. It is the petitioner's case that the
respondent no.4 while in service by an E-mail
communication dated 8th July, 2021, tendered his
resignation. The petitioner had accepted the same and
consequent there upon had settled all the dues of the
respondent no.4. Subsequently, the petitioner received a
notice dated 21st December, 2021, issued by the Assistant
Labour Commissioner, Barrackpore, North 24-Parganas,
requesting the petitioner to submit its comments as
regards the complaint lodged by the respondent no.4. In
response to the aforesaid notice, the petitioner by an
undated communication, in writing, which was forwarded
to the office of the Assistant Labour Commissioner,
intimated that the respondent no.4 had willingly and
voluntarily submitted his resignation whereupon the same
was accepted and all his dues had been settled. The
petitioner says that notwithstanding the aforesaid
communication, the petitioner was served with an order of
reference dated 24th June, 2022 issued by the respondent
no.2, in terms of Section 10 of the Industrial Disputes
Act, 1947, wherein the following issues have been framed
for being referred to the Seventh Industrial Tribunal for
adjudication:-
1. Whether the termination of service of the
workman Sri Prasenjit Barman Roy by way of
refusal of work w.e.f. 30.06.2021 by the
management of M/s. Travel Food Services Pvt.
Ltd., is justified?
2. If not, what relief is he entitled to?
Mr. Ganguly, learned advocate representing the
petitioner submits that the Tribunal cannot traverse
beyond the issues and, as such, the petitioner has been
rendered defenceless. He says that considering the issues
framed by the respondent no.2, the Tribunal is not
competent to consider whether the respondent no.4 had
tendered his resignation or not. In view thereof, he says,
in the event, the Tribunal proceeds to adjudicate on the
reference, the petitioner shall not be able to put-forward
its best defence. He says that the petitioner has come-
forward at the earliest possible opportunity and there is
no delay or laches on the part of the petitioner. He
submits that this Court is competent to interfere with the
order of reference passed by the respondent no.2. In
support of his contention, reliance has been placed on the
judgment delivered by this Hon'ble Court in the case of
Sinclairs Hotels and Transportation Ltd.& Anr. Vs.
State of West Bengal & Ors., reported in 2003 (4) CHN
439.
Mr. Dhole, learned advocate enters appearance on
behalf of the State.
Heard the learned advocates appearing for the
parties and considered the materials on record. I find the
petitioner claims that the respondent no.4 had tendered
his resignation. It is also the petitioner's contention that
the petitioner has settled the dues of the respondent no.4
as noted earlier. The respondent no.4 has not come
forward to oppose the present application.
From the order of reference dated 24th June, 2022,
it would be apparent that the Tribunal is required to
adjudicate whether the termination of service of the
respondent no.4 by the petitioner is justified.
I find that in the event, the Seventh Industrial
Tribunal proceeds and adjudicates upon the issues
framed by the respondent no.2, there is no scope or
opportunity available to the Seventh Industrial Tribunal to
adjudicate whether the respondent no.4 has tendered his
resignation or not.
The aforesaid view finds support from the judgment
delivered in the case of Sinclairs Hotels and
Transportation Ltd.& Anr. (supra), wherein this Hon'ble
Court in paragraph 11 thereof, was inter alia pleased to
observe as follows:
"11. Admittedly, the earlier award passed by the
learned Seventh Industrial Tribunal was
challenged by the employee concerned before this
Hon'ble Court by a writ petition which was
numbered as C.O. No. 19267 (W) of 1996. While
deciding the said writ petition finally on 30
October, 2000, Bhaskar Bhattacharjee, J., held as
under:
"In view of the dispute referred to the Tribunal,
it has no jurisdiction to enquire into the question
whether this was a case of resignation or not
that the Tribunal was required to consider or as
to whether the termination was legal, valid and
whether the employee was entitled to any relief,
if it is held to be illegal. I thus set aside the
award impugned and remand the matter back
to the Tribunal for answering the dispute that
has been referred to it strictly in terms of
reference. The Tribunal cannot proceed, as it is
a case of resignation. The Tribunal will decide
the aforesaid issues on the basis of the
materials on record".
I find that the petitioner has been able to make out
a prima facie case.
In view thereof, there shall be an interim order
restraining the Seventh Industrial Tribunal from
proceeding further on the basis of the order of reference
dated 24th June, 2022, till disposal of the present writ
application, or until further order whichever is earlier.
The respondents shall be at liberty to file affidavit-
in-opposition to the present writ application within a
period of four weeks from date. Reply, if any, thereto, be
filled within two weeks thereafter.
Liberty to mention after expiry of the period for filing
affidavits.
Petitioner is directed to communicate the aforesaid
order to the non-appearing respondent.
(Raja Basu Chowdhury, J.)
