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T. Sanjeevi and anr. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberMatter No. 338 of 1963
Reported inAIR1966Cal58
ActsIndustrial Disputes Act, 1947 - Sections 29, 33C and 34; ;Air Corporations Act - Section 22; ;Bengal Public Demands Recovery Act - Section 3(3); ;General Clauses Act
AppellantT. Sanjeevi and anr.
RespondentState of West Bengal and ors.
Appellant AdvocateN. Gooptu, Adv.
Respondent AdvocateH.P. Ghose, Adv.
DispositionPetition allowed
- .....collector to proceed to recover the said money from respondent no. 4 or respondent no. 3.3. the state government alone is opposing this petition by a counter affidavit filed by its assistant secretary in the department of labour.i. the main ground of opposition is that the state government has done its duty in the matter of recovery of the computed amount, by issuing a certificate under the public demands recovery act, 1913, to the certificate officer, 24 parganas. the duty of the government in this behalf is, of course, as provided in section 33c(1) of the industrial disputes act, 1947- '..... it shall issue a certificate of thatamount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue.' 3a. it has been rightly contended on behalf.....

D. Basu, J.

1. The petitioners, T. Sanjeevy and Krishnapada Chatterjee, were employees of the Himalayan Aviation Ltd.--Respondent No. 4. By two notices of November, 1951 and March, 1952, Respondent No. 4 terminated the services of the Petitioners whereupon the Petitioners moved the Labour Commissioner, and a conciliation proceeding for settlement of the industrial dispute arising out of that order of termination of services was started. During the pendency of the said conciliation proceeding the undertaking of Respondent No. 4 was transferred to and vested in the Indian Airlines Corporation.--Respondent No. 3,--with effect from the 1st of August, 1953, under the provisions of the Air Corporations Act, 1953. Failing conciliation, the dispute was eventually referred for adjudication to the Sixth Industrial Tribiunal, West Bengal, and the Indian Airlines Corporation was made a party in that proceeding. After a remand by the Labour Appellate Tribunal, holding that the proceeding was maintainable against Respondent No. 4 but not against Respondent No. 3, the dispute was determined by an award of the Sixth Industrial Tribunal dated the 4th October, 1956 (Ann. C to the Petition), by which the termination of services of the Petitioners was held to be unjustified and they were directed to be reinstated by Respondent No. 4, and it was further ordered that the Petitioners were to be paid their arrears of wages for a specified period. On further applications by the Petitioners under Section 33C(2) of the Act, the First Labour Court computed the arrears of wages payable by Respondent No. 4 at Rupees 11,992/8 annas payable to Petitioner No. 1 and Rs. 9,712/8 annas payable to Petitioner No. 2.

2. The Petitioner's grievance is that in spite of repeated demands, Respondent No. 1, the State of West Bengal, has tailed to enforce the award of the Tribunal as well as the orders of the Labour Court dated the 27th September, 1957 to recover the computed amounts payable in terms of the award from Respondent No. 4 or its successor, the Indian Airlines Corporation (Respondent No. 3). The petitioners, accordingly, pray for orders in the nature of mandamus directing the State to enforce the award of the 4th of October, 1956, and to issue a certificate to the Collector of Calcutta (Respondent No .5) to recover the computed money and further directing the Collector to proceed to recover the said money from Respondent No. 4 or Respondent No. 3.

3. The State Government alone is opposing this petition by a counter affidavit filed by its Assistant Secretary in the Department of Labour.

I. The main ground of opposition is that the State Government has done its duty in the matter of recovery of the computed amount, by issuing a certificate under the Public Demands Recovery Act, 1913, to the Certificate Officer, 24 Parganas. The duty of the Government in this behalf is, of course, as provided in Section 33C(1) of the Industrial Disputes Act, 1947- '..... it shall issue a certificate of thatamount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.'

3a. It has been rightly contended on behalf of the Petitioner that by issuing a certificate to the 'Certificate Officer', 24 Parganas, there has not been a compliance with the above provision. This is obvious from the definition of the word 'Collector' as given in Section 3 of the General Clauses Act, 1897, which will come in aid for the interpretation of the word 'Collector' in Section 33C of the Industrial Disputes Act, since the latter enactment does not provide any definition of that word. The 'Collector', according to the General Clauses Act, means 'the chief officer in charge of the revenue administration of a district'. That the 'Certificate Officer' of a district may not necessarily be the Collector himself, i.e., the chief revenue officer, will be evident if we refer to the definition of a 'Certificate Officer in Section 3(3) of the Public Demands Recovery Act, 1913, which is as follows:

' 'Certificate Officer' means a Collector, a Sub-divisional Officer, and any Officer, appointed by a Collector, with the sanction of the Commissioner, to perform the functions of a Certificate-officer under this Act.'

4. So, persons other than the Collector himself may be a 'Certificate Officer'. The definition of 'Collector', in Section 3(3a) of the Public Demands Recovery Act, 1913, it may be noted, is substantially the same as in the General Clauses Act. It is clear, therefore, that by issuing the certificate to the Certificate-officer of 24 Parganas, the State Government has not complied with Section 33C of the Industrial Disputes Act. Of course, the 'Collector', 24 Parganas is the ex officio 'Collector' of Calcutta, by a notification of 1875; but, then, the certificate must be issued to the 'Collector', 24 Paraganas. However technical the default of the Government in this behalf may be, the Petitioners are entitled to an order in the nature of mandamus directing the Government to issue a fresh certificate, accordingly.

5. As regards enforcement of the certificate by the Collector of Calcutta, who has been impleaded as Respondent No. 5, he has not filed any counter-affidavit, for reasons not quite apparent, but the affidavit of the Assistant Secretary on behalf of Respondents 1-2 is that the certificate could not be enforced against Respondent No. 4 because Respondent No. 4 was not found at the address given in the Certificate. I am not called upon to determine the validity of this plea in the present proceeding inasmuch as a fresh certificate has to be issued by the Government. I may only observe for the attention of the Collector that to say that he is unable to find out the address of a company registered under the Companies Act is a plea unacceptable to a court of law. If he has failed owing to the inefficiency of his staff, he may move the Government for replacing them by those who are capable, but, in any event, the Law must be duly enforced by those who are maintained by the State for that purpose.

II. This brings us to the question whether the petitioners are entitled to any order in the nature of mandamus against the State Government for enforcement of the Award of the Industrial Tribunal, as contained in Ann. C to the petition. As stated earlier it contains two directions--(a) Reinstatement of the petitioners and (b) payment of their back wages, by Respondent No. 4. I have so far dealt with the second part of the Award.

6. As regards the averments in the petition relating to the first part, the answer in the counter-affidavit is to be found in para 10. There it is stated that (a) Respondent No. 4 could not be prosecuted because it could not be found and (b) Respondent No. 3 is not liable under the Award.

7. The plea regarding Respondent no. 3, i.e., the Airlines Corporation, is correct. Under Section 29 of the Industrial Disputes Act, a person may be prosecuted for committing a breach of any term of an award only if the award 'is binding on him under the Act.' In the instant case, the Award was directed only against Respondent No. 4, the Himalayan Aviation. Therefore, no relief under Section 29 is available against the Corporation. Apart from that, it was held by the Labour Appellate Tribunal that the petitioners could not proceed for their claims against the Corporation. Good or bad, this decision is now final since the petitioners never sought to have this decision quashed by taking proper steps under the law. Section 22 of the Air Corporations Act, 1953, is also clear on this point. Though the undertakings of the existing air companies vested in the Corporation from the appointed date under Section 16,--by reason of Sub-sections (1) and (2) of Section 22, only such liabilities etc. vested in the Corporation as were declared by the existing companies by supplying particulars to the Corporation concerned, within 30 days from the appointed date.

It has not been shown before me that the liabilities referred to in the Award in question were so transferred to the Corporation. On the other hand; from the award at page 30 of the Petition it appears that the learned Advocate for the Himalayan Aviation admitted that the liabilities to the petitioners were liabilities of the Himalayan Aviation and not of the Corporation. Be that as it may, the petitioners cannot complain of non-enforcement of the Award against the Corporation in the instant proceeding.

8. Nevertheless, there is no reason why the Award which is binding on Respondent No. 4 should not be enforced by the State Government, by prosecuting the management if they refuse to implement the Award after proper notice. The State Government is not concerned with the result of such prosecution,--that being the business of the Criminal Court But, in view of Section 34, a Court cannot take cognisance of the offence referred to in Section 29, save on a complaint made by the appropriate Government, It becomes, therefore, the duty of the State Government to make such complaint, if the award is binding upon a person and he refuses to implement it. The only excuse for not carrying out this statutory obligation, as given in para 10 of the counter-affidavit, is that the management of respondent No. 4 could not be found out. In this respect, I may only say that if my comments against the Collector, in this behalf, made earlier, be justified, there is no reason why they should not apply against the Government with greater force but for the fact that the Government has no separate limbs of its own save its employees and its advisers who have advised such plea.

9. In making the complaint under Section 34, the State Government is to proceed personally against the management of the Himalayan Aviation Ltd., who must have their names, occupations and addresses registered under the provisions of the Companies Act. Any Government, therefore, which does not want to abnegate its statutory duties, has to find out such persons so long as they do not disappear from the face of the earth,--after serving proper notices at their registered official address, which, it appears from the letter of the Registrar of Companies produced before me, is 9A, Esplanade East. It is clear that the Slate Government has not applied its mind in the matter of exercising its power under Section 34 of the Act. It is not the case of the Government that it has applied its mind and then refused to exercise its discretion upon some consideration relevant to the statute. The only plea is the non-availability of the persons liable.

10. In the result, this petition succeeds. The Rule be made absolute with costs. Let an order in the nature of mandamus be issued against respondents 1 and 2 directing them to issue a fresh certificate against the Collector, Calcutta, for recovery of the computed money referred to in paragraph 21(b) of the petition and against respondent No. 5 to proceed to enforce the fresh certificate when so issued. Let a further order be made against respondent No. 1 to exercise its powers under Section 34 of the Industrial Disputes Act, read with Section 29of that Act, against the persons constituting themanagement of the Himalayan Aviation Ltd.,within a reasonable time of their failure to implement the Award in question by reinstitutingthe petitioners, after due notice.

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