Calcutta High Court (Appellete Side)

Bipad Bhanjan Sarkar & Ors vs Union Of India & Ors on 12 September, 2023

Form No.J(2)


                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE
Present :

The Hon'ble Justice Raja Basu Chowdhury

                                WPA 7963 of 2021

                      Bipad Bhanjan Sarkar & Ors.
                                      -vs-
                              Union of India & Ors.

For the petitioners       :        Mr. Anirban Kar
                                   Mr. Munshi Ashiq Elahi

For the respondent no.2   :        Mr. Alok Kumar Banerjee

Mr. Arunabha Sarkar Mr. Saptarshi Mukherjee

Heard on : 06.04.2023.

Judgment on               :        12.09.2023.

Raja Basu Chowdhury, J:

1. The writ petition concerns a challenge to the award dated 30th

September, 2019 passed by the Learned Central Government

Industrial Tribunal -cum- Labour Court (in short, CGIT), Kolkata.

The petitioners claim to be the employees of the Canteen run in the

office of the Reserve Bank of India, Kolkata. It is the petitioners'

case that the said Canteen was run by the respondent no.3. The

petitioner nos.1 and 2 claim that they were appointed on 20th June,

1983, whereas the petitioner no.3 was appointed on 2nd May, 1975

and petitioner no.4 was appointed on 2nd November, 1998. The

petitioners claim to be members of the Reserve Bank Employees

Co-operative Canteen Ltd., Workmens' Union (hereinafter referred

to as the "Workmens' Union"). The petitioner nos. 3 and 4 are,

however, the members of the Reserve Bank Employees Co-operative

Canteen Employees' Union (hereinafter referred to as the

"Employees' Union"). Both the trade unions are registered under

the Trade Unions Act, 1926. The petitioners claim that the

respondent no.1 is the appropriate Government. It is also the case

of the petitioners that the petitioner no.1 was the Secretary and the

petitioner no.2 was the President of the "Workmens' Union", while

the respondent no.4 was the Secretary and the respondent no.3

was the Vice President of the "Employees' Union". The petitioners

claim that the Workmens' Union and the Employees' Union, had for

long been agitating before the respondent nos. 2 and 3 for proper

service conditions, pay scales, inter alia, including equal pay for

equal work and for regularisation of their service, as employees of

the respondent no.2 on the basis of the representations made by

the petitioners. Since, the demands made by the Canteen

employees, inter alia, including petitioners were not adhered to, the

Workmens' Union had raised a dispute before the Learned

Assistant Labour Commissioner (Central) - II, Kolkata, Government

of India on 17th November, 2000. In conciliation proceeding that

followed, the Employees' Union was also joined as a party to such

dispute. During the pendency of the aforesaid conciliation

proceeding before the Office of the Regional Labour Commissioner

(C), Ministry of Labour, Government of India, the respondent no.3

issued suspension letters with similar contentions, all dated 8 th

May, 2004 thereby, suspending the following petitioners:

       (i)    Bipad Bhanjan Sarkar, Assistant Cook;

       (ii)   Arun Kumar Das, Tea-boy;

       (iii) Amal Kumar Dey, Tea-boy; and

       (iv) Nipu Das, Tea-boy.

2. On 11th May, 2004 four separate charge-sheets were issued by the

respondent no.3 against the aforementioned persons. Since, the

disciplinary proceeding had been initiated during pendency of the

conciliation proceeding on 21st July, 2004, the Assistant Labour

Commissioner (Central), had, inter alia, instructed the respondent

nos. 2 and 3 not to continue with the disciplinary proceeding till

disposal of the dispute before the A.L.C. (Central). Since, the

concerned respondent despite the aforesaid direction, had

appointed the enquiry officer to conduct departmental enquiry, the

petitioners were compelled to issue the letter dated 27th September,

2004 thereby, requesting the enquiry officer to adjourn the

proceeding till further notice from the A.L.C. (Central). The

petitioners thereafter did not appear before the Disciplinary

Authority.

3. Unfortunately, the disciplinary proceeding continued ex parte and

ultimately, the petitioners were dismissed from service with effect

from 18th March, 2005. Since, according to the petitioners, the

aforesaid order of dismissal was contrary to the statutory

provisions, the petitioners, on 4th April, 2005, had submitted a joint

application under Section 33A of the Industrial Disputes Act, 1947

(hereinafter referred to as the "said Act") before the A.L.C. (Central)

against the order of dismissal of the petitioners. Following the

aforesaid, a failure report was submitted by the Conciliation

Officer. Since, no steps were taken by the Ministry of Labour,

Government of India despite issuance of the failure report, the

concerned Unions had filed a writ petition before this Hon'ble Court

which had been registered as WP No. 12882 (W) of 2006. By an

order dated 28th June, 2006, a Co-ordinate Bench of this Hon'ble

Court had directed the Ministry of Labour, Government of India to

immediately take appropriate steps under Section 12(5) of the said

Act. Although, an appeal was preferred by the respondent no.2, the

same was, however, dismissed by an order dated 28th August,

2006.

4. After dismissal of the aforesaid appeal, the Ministry of Labour,

Government of India by an order dated 27th November, 2006 held

that since, the demand raised by the Reserve Bank Employees Co-

operative Canteen Ltd. Workmens' Union and Reserve Bank

Employees Co-operative Canteen Employees Union at Kolkata, for

absorption of workmen as direct workmen of the Bank, is similar to

the demands raised by the All India Reserve Bank Canteen

Employees Federation, Mumbai, which had already been referred to

the Central Government Industrial Tribunal -Cum- Labour Court

No. II, Mumbai, the same would also cover the dispute raised by

the aforesaid Workmens' Union and the said Employees' Union.

5. Being aggrieved by the order dated 27th November, 2006, a writ

petition was filed before the Hon'ble High Court at Calcutta, which

was registered as W.P. No. 1067 of 2007. By an order dated 28 th

July, 2009, a Co-ordinate Bench of this Hon'ble High Court at

Calcutta by taking note of the order passed by the Co-ordinate

Bench of this Court on 28th June, 2006, disposed of the said writ

petition by directing the Ministry of Labour, Central Government to

consider the dispute arising out of the issue of termination of

service of the aforesaid four persons and to decide whether the

dispute is worthy of being referred for adjudication, keeping in

mind the point of fixing the identity of the employer of the

petitioners and to provide reasons, in case the Central Government

decides not to refer the dispute to the Tribunal for adjudication,

with a further direction to communicate the same to the

petitioners.

6. In compliance of the said direction, the Ministry of Labour,

Government of India by an order dated 18th September, 2009, while

identifying the following issues, had forwarded the same to the

Central Government Industrial Tribunal -Cum- Labour Court,

Kolkata, for adjudication. The schedule of the reference reads as

follows:

"Whether the action of the management of Reserve Bank of India in terminating the services of S/Shri Bipad Bhanjan Sarkar, Arun Kumar Das, Amal Kr. Day and Nipu Das, is justified? If not, what relief the workmen concerned are entitled to?"

7. Following the aforesaid the petitioners had filed two separate

Statements of Claim, by the respective two Unions.

8. Subsequently, the petitioners had applied before the Central

Government, seeking amendment of the reference by incorporating

the name of the Reserve Bank of India Employees Cooperative

Canteen Ltd., who according to the petitioners was a necessary and

proper party. Since, the aforesaid application was kept pending, the

petitioners had moved a writ petition before this Hon'ble Court

which was registered as WPA 19277(W) of 2013. By an order dated

12th November, 2013, a Co-ordinate Bench of this Hon'ble Court

was, inter alia, pleased to direct the Central Government to dispose

of the said application filed by the petitioners within a specified

period.

9. Pursuant to the aforesaid order, the Central Government by letter

dated 22nd January, 2014, was, inter alia, pleased to amend the

schedule of reference to the following effect

The Schedule "Whether the action of the management of Reserve Bank Employees Co-op. Canteen Ltd. in terminating the services of S/Shri Bipad Bhanjan Sarkar, Arun Kumar Das, Amal Kr. Day

and Nipu Das, is justified? If not, what relief the workmen concerned are entitled to?"

10. In the interregnum, a settlement was arrived at in the reference

pending before the Tribunal at Mumbai, in connection with the

reference made by the All India Reserve Bank Workers' Federation,

wherein a scheme was introduced, for switch over of class IV staffs

of Canteen to the cadre of Office Assistants and Catering

Attendants, in the Reserve Bank of India. The Canteen managed by

the Kolkata, Reserve Bank Employees Co-operative Canteen Ltd.

being the respondent no.3 herein was also Party to such

settlement.

11. Ultimately, by an award dated 30th September, 2019, the learned

Tribunal concluded that the Central Government did not have

jurisdiction to make the reference and it is the State Government

which is the appropriate Government. Therefore, the reference

made by the Central Government is bad-in-law and is not

maintainable. While answering the reference as such, the learned

Tribunal had recorded that the question, whether the service

conditions of the persons covered under the reference were changed

or not, was beyond the scope of the reference, since, the reference

was made with regard to the action of the respondent no.3 in

terminating the service of the aforesaid persons. Despite having

held the reference to be not maintainable the Tribunal was,

however, of the view that for the sake of argument, if such reference

was maintainable, then the action of the management of the

respondent no.3 in terminating the service of the petitioners cannot

be said to be illegal and unjustified.

12. Mr. Kar, learned advocate representing the petitioners, submits

that the Tribunal committed a fundamental error, primarily in

holding that the reference was not maintainable and subsequently

in concluding that it was beyond the terms of reference to consider

whether the service conditions of the persons covered under the

reference had been changed or not. He submits that the Tribunal

was required to consider the issue whether the dismissal was bad

or unjustified. It was not within the realm of reference for the

Tribunal to conclude whether the petitioners were employees of

Reserve Bank of India or not. A master-servant relationship

between the Reserve Bank of India and the petitioners was the

subject matter of dispute before the Mumbai Tribunal. The learned

Tribunal at Kolkata obviously failed to exercise jurisdiction when it

had concluded that the service conditions of the persons covered

under the reference were changed or not, was beyond the scope of

the reference.

13. It is submitted that the Tribunal while adjudicating whether the

action of the respondent no.3 in terminating the services of the

petitioners were bad or not, was obviously required to consider,

whether there had been violation of Section 33 of the said Act. In

the event, had the learned Tribunal came to the conclusion that

there was violation of Section 33 of the said Act, the termination

order could not be sustained and ought to have been set aside. This

aspect was not at all considered by the learned Tribunal. By

referring to a judgment delivered in the case of Employers in

relation to the Management of Reserve Bank of India v.

Workmen, reported in AIR 1996 SC 1241, he submits that the

obligation to provide a canteen may be implicit or explicit. Whether

the obligation to provide canteen becomes part of service conditions

of the employee requires to be decided. He further submits that the

petitioners were protected workmen and during pendency of

conciliation the service conditions of the petitioners could not have

been changed. This aspect was completely ignored by the Tribunal.

Reliance has been placed on a judgment delivered in the case of

Vikramaditya Pandey v. Industrial Tribunal, Lucknow & Anr.,

reported in AIR 2001 SC 672 to contend that once termination is held

illegal reinstatement is a natural consequence. In the facts stated

hereinabove, it is submitted that the instant award cannot be sustained,

the same is perverse and the same should be set aside.

14. Per contra, Mr. Banerjee, learned advocate representing

respondent no.2, by referring to the order of reference at page 42 of

the writ petition submits that the order of reference was irregular,

since, termination was not affected by Reserve Bank of India. By

placing reliance on Section 2 sub-section (k) of the said Act, he says

that the dismissal cannot be construed to be an Industrial Dispute

as between Reserve Bank of India and the petitioners within the

meaning of Section 2(k) of the said Act, nor could a reference in

terms of Section 10 of the said Act be made since, admittedly

Reserve Bank of India was not the employer. He says that at best

reference could have been made by the State Government who is

the appropriate Government. In the facts stated hereinabove, a

question of maintainability was raised by Reserve Bank of India. By

drawing attention of this Court to the order dated 12 th November,

2013 passed by a Co-ordinate Bench of this Hon'ble Court, it is

submitted that even the petitioners had sought for amendment of

the reference so as to incorporate the name of the respondent no.3,

who according to them was a necessary and a proper party. Since,

it is an admitted position that the order of termination was issued

by the respondent no.3, the Coordinate Bench of this Court had

directed the Central Government to decide upon the petitioners'

application. It is still further submitted that pursuant to the

aforesaid order, by letter dated 22nd January, 2014, the schedule of

reference was amended so as to question the action of the

respondent no.3 in place of the respondent no.2

15. The learned Tribunal has rightly concluded that the reference

was bad as the Central Government was not the appropriate

Government to refer the dispute between the petitioners and the

respondent no.3. There is no irregularity on the part of the learned

Tribunal in passing the award impugned. The aforesaid order of

reference or the order of amendment of the reference does not

clothe the Tribunal with the authority or jurisdiction to decide an

issue which is beyond the competence of the Central Government

to refer. In any event unless a specific reference is made, the

learned Tribunal cannot answer the same. The learned Tribunal

while answering the reference has to confine its enquiry to the

question referred and had no jurisdiction to travel beyond the

question or the terms of the reference. In support of the aforesaid

contention reliance has been placed in the case of Oshiar Prasad

and Others v. Employers in relation to Management of

Sudamdih Coal Washery of M/s Bharat Coking Coal Limited,

Dhanbad, Jharkhand, reported in (2015) 4 SCC 71.

16. Mr. Kar, in reply, submits that as on the date when the award

was passed, the reference had already been amended. The Central

Government had proceeded to robe in Reserve Bank of India since,

Reserve Bank of India was running the canteen. A notice by the

Canteen is a notice by the Reserve Bank of India, since, the

Canteen is the agent of the Reserve Bank of India. Central

Government cannot be faulted for making the initial reference. By

once again referring to Rule 61 of the Industrial Disputes Central

Rules, 1957, it is submitted that petitioners are the protected

workmen. The reference was limited to question of legality of the

order of termination and not whether the petitioners were the

employees of the respondent no2. As such the learned Tribunal

exceeded its authority in deciding the same.

17. In the alternative, it is submitted that once the Tribunal holds

that it does not have jurisdiction in the matter, no declaration or

directions could have been issued by it. Even acquiescence by a

party cannot confer jurisdiction on a Court/Tribunal which it

inherently lacks. In support of the aforesaid proposition, reliance

has been placed on a judgment delivered by the Hon'ble Supreme

Court in the case of Kanwar Singh Saini v. High Court of Delhi

reported in (2012) 4 SCC 307.

18. Heard the learned advocates appearing for the respective parties

and considered the materials on record.

19. I find that the initial dispute raised by the parties was with

regard to providing proper service conditions, scale of pay including

equal pay for equal work and for regularisation of the employees of

two concerned Unions as employees of the Reserve Bank

Employees Cooperative Canteen Ltd. During the pendency of the

conciliation proceedings, since, the management of the respondent

no.3 had purported to issue suspension orders on the petitioners

which were followed by charge-sheets and orders of dismissal, the

petitioners had filed an application under Section 33A of the said

Act, before the Assistant Labour Commissioner (Central) against

the aforesaid orders of dismissal. Following the failure report since,

no dispute was referred for adjudication, the petitioners were

compelled to file a writ petition which was registered as WP No.

12882 (W) of 2006. By a judgment and order dated 28th June, 2006

a Co-ordinate Bench of this Court, while taking note of the

objection raised by the Reserve Bank of India, had directed the

Central Government before taking a decision in the matter to

consider the objection raised by the respondent no.2. Although, an

appeal was preferred from the aforesaid order, by a judgment and

order dated 28th August, 2006, the same was dismissed. Pursuant

to the aforesaid direction passed by a Co-ordinate Bench of this

Court, the Central Government by a communication dated 27 th

November, 2006 had refused to refer the dispute for adjudication

by, inter alia, observing as follows:

"The dispute raised by Reserve Bank Canteen Employees Federation, Mumbai against the management of the Reserve Bank of India that the canteen employees engaged through different agencies and catering to the needs of Class III and IV employees of the Reserve Bank of India all over India should be absorbed as direct workmen, as in the case of canteen catering to the Class I and Class II Officers of Bank, was referred for adjudication to the Central Government Industrial Tribunal cum Labour Court No. II, Mumbai vide this Ministry's order No.L- 12011/02/2000-IR(B1) dated 28.12.2005 and the issue is still pending with the Tribunal. Reserve Bank Employees' Coop. Canteen Workers Union, Kolkata and Reserve Bank Employees' Coop.

Canteen Employees Union, Kolkata demanding similar relief on behalf of the workers engaged by the Canteen catering to the Class III and Class IV employees would also be covered by the decision of

the Tribunal as and when given by it. In the circumstances, the matter is not found fit for adjudication."

20. Challenging the said communication, the petitioners had filed a

writ petition which was registered as WP No. 1067 of 2007 and by

an order dated 28th July, 2009, the Co-ordinate Bench of this Court

was of the view that whether or not there had been violation of

Section 33 of the said Act had to be adjudicated by the Tribunal

and since, the decision of the Central Government did not

appropriately redress the issue as regards termination of service of

the petitioners, the writ petition was disposed of with a direction

upon the Ministry of Labour, Government of India to consider the

dispute arising out the issue of termination of service of the 4

(Four) petitioners and to decide whether the same is worthy of

being referred to the appropriate forum for adjudication. It was

further made clear that the appropriate Government while deciding

the same shall keep in mind the point of fixing the identity of the

employer of the 4 (four) petitioners.

21. Records reveal that pursuant to the aforesaid order dated 28 th

July, 2009, the Ministry of Labour, Government of India had by

identifying the issues, forwarded the same to the Central

Government Industrial Tribunal -cum- Labour Court at Kolkata for

adjudication.

22. During pendency of such proceeding, the petitioners had applied

before the Central Government, inter alia, praying for amendment

of the terms of reference so as to question the action of the

management of the Reserve Bank Employees Co-operative Canteen

Limited, in terminating the service of the petitioners and as such

had sought for incorporating the name of the Reserve Bank

Employees Co-operative Canteen Limited as a necessary and proper

party to the reference. Since, the petitioners' request was not being

adhered to, the petitioners had filed a writ petition, which was

registered as WP No.19277 (W) of 2013. By an order dated 12th

November, 2013, a Co-ordinate Bench of this Hon'ble Court had

directed the concerned respondent to dispose of the application

filed by the petitioners. Pursuant to the aforesaid, the schedule

reference was amended by the following.

The Schedule "Whether the action of the management of Reserve Bank Employees Co-op. Canteen Ltd. in terminating the services of S/Shri Bipad Bhanjan Sarkar, Arun Kumar Das, Amal Kr. Day and Nipu Das, is justified? If not, what relief the workmen concerned are entitled to?"

23. Since, then the respective parties had filed their respective

written statements. It appears that it has been the contention of the

Reserve Bank of India that there is no employee-employer

relationship between the petitioners and Reserve Bank of India. The

learned Tribunal appears to have considered this issue and has

returned a finding that there is no master-servant relationship

between the Reserve Bank of India on the one hand and the

petitioners on the other. The learned Tribunal has also identified

that the Canteen was run by a co-operative society. It appears that

it has been the contention of the Reserve Bank of India that it had

no supervisory control over the staffs of the Canteen. On the basis

of the aforesaid and by taking into consideration the judgment

delivered by the Hon'ble Supreme Court in the case of Employers

in relation to the Management of Reserve Bank of India

(supra), the learned Tribunal had concluded that no master-servant

relationship existed between the petitioners on one hand and the

Reserve Bank of India on the other.

24. Mr. Kar has, however, strenuously argued that an obligation to

provide canteen may be explicit or implicit. Where the obligation is

not explicitly accepted by or cast upon the employer either by an

agreement or an award, it may be inferred from the circumstances,

and the provisions of the canteen may be held to have become a

part of the service conditions of the employees. By also placing

reliance on the settlement between the All India Reserve Bank

Workers' Federation and the Management of Reserve Bank of India,

he claims since, the same also includes the employees of the

respondent no.2, he insists that a notice/order of termination

issued by the respondent no.3 would be deemed to be a

notice/order issued by the respondent no.2 being its agent. I am,

however, unable to accept such contention. Such an issue was not

before the Tribunal for consideration. In this case, I find that

admittedly on the facts as set forth hereinabove, the Tribunal was

required to consider whether the action of the management of the

respondent no.3 in terminating the service of the four petitioners

was justified. For deciding the same, it had to consider whether the

four petitioners had any employee employer relationship with the

respondent no.2, since, the reference was made by the Central

Government and the respondent no.2 was denying the relationship.

While deciding as such it had arrived at a conclusion that there

was no master-servant relationship between petitioners on the one

hand and the Reserve Bank of India on the other. Although, Mr.

Kar has argued that the aforesaid issue was not before the

Tribunal, I am of the view that the Tribunal was competent to

adjudicate upon the same since, the same was an ancillary issue,

which required consideration, especially in the light of the order

dated 28th June, 2006. In this context, I must note that in the order

dated 28th June, 2006, the Co-ordinate Bench of this Hon'ble Court

by taking note of the confusion, as regards, the status of and the

identity of the employers of petitioners had directed the Central

Government to take a decision in the matter, by fixing the identity

of the employers of the petitioners, in as much as the petitioners at

that stage were not sure as to whether Reserve Bank of India

Cooperative Canteen Ltd. or the Reserve Bank of India, were their

employers. I also find that the dispute pending before the Central

Government Industrial Tribunal, Mumbai as regards the

regularisation of the canteen workers had been dismissed on the

basis of a settlement arrived thereat.

25. As such once, the learned Tribunal came to a conclusion that

there was no master-servant relationship between the petitioners

and the respondent no.2, the reference failed. The issue of change

in service conditions as highlighted by Mr. Kar, could not have been

decided independently by the learned Tribunal in this reference

since, the same was inexplicably interlinked with the order of

termination issued by the management of the respondent no.3. The

order of reference which was later amended so as to convert the

same, as a dispute between the petitioners and the respondent

no.3, in my view, does not and cannot clothe the Central

Government with the authority or jurisdiction to make a reference

in relation to a dispute between the petitioners on the one hand

and the respondent no.3 on the other, as the Central Government

is not the appropriate Government within the meaning of the said

Act to make such a reference.

26. I, however, find that the learned Tribunal, after holding that it

did not have jurisdiction in the matter, has proceeded to return a

finding on the basis of the assumption of jurisdiction in the matter

which it did not have. Such a finding, in my view, is not binding on

the parties to say the least. It is well settled that a consent cannot

confer jurisdiction. By a mere participation of the petitioners in the

proceeding, the Tribunal cannot assume jurisdiction over the

matter especially when the petitioners were not the employees of

the respondent no.2. The Hon'ble Supreme Court in the case of

Kanwar Singh Saini (supra) in paragraph 22 has been, inter alia,

please to observe as follows:

"22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute."

27. Having regard to the aforesaid, the findings rendered by the

learned Tribunal, as regards the action of the respondent no.3 in

terminating the service of the petitioners, is without jurisdiction,

non-est and cannot be acted upon.

28. I, however, find that in this case, one of the petitioner has

already died. As such taking into consideration the fact that no

adjudication of the industrial dispute raised by the original

petitioners through their respective unions, by the learned Tribunal

is possible, and also by taking note that the petitioners cannot be

permitted to be left high and dry and without any remedy, I grant

leave to the petitioners to approach the State Government being the

appropriate Government for reference of the disputes. If such an