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Dino Bandhu Nayak Vs. D. Mitra and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 142 of 1963
Judge
Reported inAIR1965Cal280,[1964(9)FLR211]
ActsConstitution of India - Article 226; ;Industrial Disputes Act - Section 29
AppellantDino Bandhu Nayak
RespondentD. Mitra and anr.
Excerpt:
- b.n. banerjee, j.1. an industrial dispute, between messrs. atal behari nayak (proprietor shri jagabandhu nayak) of no. 9/5c, munshiganj road, kidderpore and their workmen represented by the national union of tea workers, was referred by the government of west bengal to the 1st industrial tribunal for adjudication. the industrial dispute related to retrenchment of workmen. the tribunal made an award against the employer holding that the order of retrenchment was neither valid nor justifiable excepting in the case of two named workmen. apparently the award was not implemented and the workmen who had been retrenched were not taken back. thereupon, on february 4, 1963, a labour officer to the government of west bengal wrote a letter, which i set out below:'to (1) m/s atal behari nayak9/5c,.....
Judgment:

B.N. Banerjee, J.

1. An industrial dispute, between Messrs. Atal Behari Nayak (Proprietor Shri Jagabandhu Nayak) of No. 9/5C, Munshiganj Road, Kidderpore and their workmen represented by the National Union of Tea Workers, was referred by the Government of West Bengal to the 1st Industrial Tribunal for adjudication. The industrial dispute related to retrenchment of workmen. The Tribunal made an award against the employer holding that the order of retrenchment was neither valid nor justifiable excepting in the case of two named workmen. Apparently the award was not implemented and the workmen who had been retrenched were not taken back. Thereupon, on February 4, 1963, a Labour Officer to the Government of West Bengal wrote a letter, which I set out below:

'To

(1) M/s Atal Behari Nayak

9/5C, Munshiganj Road,

Calcutta-33.

(2) M/s A. B. Trading and Co.

9/5B, Munshiganj Road,

Calcutta-33.

Dated 4-2-63.

Subject--Non-implementation of award dated 25-1-62.

Sir,

With reference to the above I have to request you to implement the above award by reinstating the retrenched workmen concerned and to report compliance to this office within 10 days from date failing which prosecution may be launched against you under Section 29 of I. D. Act.

Yours faithfully,

Sd/- D. Mitra,

Labour Officer, West Bengal.'

2. The petitioner Dinobandhu Nayak says that he is the proprietor of Messrs. A. B. Trading and Co. and that his business has nothing to do with the business of Atal Behari Nayak of which the proprietor is Jagabandhu Nayak. He further says that the award was not made against him or his business and he is not bound to implement the award.

3. Aggrieved by the threat of prosecution, contained in the letter dated February 4, 1963 hereinbefore quoted, the petitioner moved this Court, under Article 226 of the Constitution, asking, inter alia, for a Writ in the nature of Mandamus commanding the respondents to withdraw or rescind the purported order dated February 4, 1963 andfor a Writ of Prohibition prohibiting them from wrongly exercising their powers under Section 29 against the petitioner and obtained this Rule.

4. Mr. Imam, learned advocate for the petitioner, argued a single point in support of this Rule. He contended that the reference to industrial adjudication was between Messrs. Atal Behari Nayak (Proprietor Shri Jagabandhu Nayak) and their workmen. Unless it was established that the business run by the petitioner and the business which was being run under the trade name 'Messrs. Atal Behari Nayak' were one and the same business, no liability should fasten on the petitioner under the award and that the Labour Officer was wrong in threatening institution of proceedings against the petitioner under Section 29 of the Industrial Disputes Act.

5. Mr. Basack, learned Advocate for the respondents, drew my attention to certain passages in the award which went to show that the business which was being run by Jagabandhu Nayak under the trade name 'Messrs. Atal Behari Nayak' was not really closed down but that the said business purposively began to function under a different trade name, namely, A. B. Trading and Co. Mr. Basak therefore, contended that the petitioner was bound by the award under Section 18(3)(a) of the Industrial Disputes Act, 1947, being a party to the industrial dispute as a benamidar for Jagabandhu Nayak.

6. The award requires interpretation in order to find out who were the persons who became bound by the award. If the petitioner in his trade name A. B. Trading and Co., is really a benamidar for Jagabandhu Nayak, who was carrying on business under the trade name, 'Messrs. Alal Behari Nayak', then the petitioner is also bound by the award. This question, however, cannot be determined off hand without taking evidence and on the materials which are before me in this writ petition. The respondents have read the award to mean that the petitioner, carrying on business under the trade name Messrs. A. B. Trading and Co., and Jagabandhu Nayak carrying on business as Messrs. Atal Behari Nayak are identical persons, the former being a benamidar for the latter. This is an opinion, the respondents are at liberty to form but before they can succeed against the present petitioner, in a prosecution under Section 29 of the Industrial Disputes Act, they will have to establish the opinion by legal proof.

It is not possible for me to command the respondents not to read the award in the way they have chosen to read and not to form the opinion as they have formed. To form an opinion is one thing--to prove that opinion is a different thing.

7. In my view of the ease, the petitioner is not entitled to dispute the formation of the opinion by the respondents at this stage. If the petitioner is prosecuted under Section 29 of the Industrial Disputes Act, he will be at liberty to take up the defence that the award was not binding upon him and that his business was a completely different business and had no connection with the business carried on by Jagabandhu Nayak. If the petitioner can prove that, the prosecution shall fail; if the respondents can prove otherwise, the award will become binding upon the petitioner and in that event, for non-implementation of the award, the petitioner must suffer the consequences. With the clarification ashereinbefore contained, I discharge this Rule butmake no order as to costs.


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