IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 28727 of 2024 With WPA 28740 of 2024 Gloster Limited Vs. The State of West Bengal & Ors. For the Petitioner : Mr. S.K. Singh, Mr. Rananeesh Guha Thakurta, Ms. Senjuti Sengupta. For the State : Mr. Ayan Banerjee, (In WPA 28727 of 2024) Mr. Amrita Lal Chatterjee. For the State : Sk. Md. Galib, (In WPA 28740 of 2024) Ms. Sujata Mukherjee. Hearing concluded on : 03.03.2025 Judgment on : 04.04.2025 SHAMPA DUTT (PAUL), J. : 1. The present writ application has been preferred against an award dated 29th January, 2024 and an order dated 23.07.2024 passed Page 2 by the Second Industrial Tribunal, West Bengal in case no. 16 of 2020 under Section 10(1B)(d) of the Industrial Disputes Act. 2. The petitioner’s case in short is that the petitioner has no intention to retrench any of the workforce. 3. It is the case of the petitioner that the petitioner has a Jute Mill at the address given in the cause title and there are about 4500 employees presently and it strictly follows the certified Standing Orders and laws of the land in all aspects of employment thereof. 4. The private Respondent had been appointed initially in Finishing Department and subsequently transferred to Roving Department of the petitioner company. Admittedly, apart from Roving Department, the Private Respondent had worked in various departments of the Jute Mill. As there was not enough work in the Roving Department around December 2019, the Petitioner, in order to protect the employment of the concerned workman, transferred him to Warp Winding Department in the Mill. 5. The concerned workman, after working there for few days, wrote a letter dated 4th January 2020 to the Petitioner that he was finding it inconvenient in Warp Winding Department and requested for a job in the Finishing Department. 6. Accordingly he was provided job of Helper on Hirakal Machine in Finishing Department on and from 5th January 2020, but he started absenting unauthorizedly since 1st March 2020. Page 3 7. It is further stated that in recent years there is scarcity of work in Roving department and most of the time this department remains idle and nonfunctional. As a result, workmen of this Department are deployed in various other departments of the Mill, as the petitioner company has no intention to retrench any of the workforce. 8. On or about 5th March 2020, the petitioner was surprised to receive a letter dated 2nd March 2020 from the private respondent containing baseless and concocted allegations against petitioner alleging purported refusal of his service w.e.f. from 16th December 2019. The Petitioner had informed the private Respondent that had his service been terminated then how he could have enjoyed his statutory leave under the provisions of Factories Act, 1948 from 11.04.2020 to 24.04.2020 and it was once again reiterated that the service of the concerned workman had not been terminated and he is still in the employment of the petitioner. 9. It is further stated that the private respondent claiming imaginary termination of service before the Conciliation machinery raised an industrial dispute for his non-existant refusal of employment on 16th December 2019. Page 4 10. It is further stated the private Respondent attained the age of superannuation on July 01, 2024 and he has been superannuated and paid his Provident Fund dues. 11. The private respondent had then again joined his service with the petitioner on 17th January, 2024 prior to his superannuation on July 1, 2024. 12. Vide an order dated 05.01.2024 the tribunal held as follows:- “……….From the pleadings of both sides it is clear that the OP company asked the petitioner to join his duty in the abovementioned departments except the Roving department as the said Roving department has not been functioning regularly at present but the petitioner has refused to join there. As the OP company admittedly has given permission to the petitioner to join his duty either in Drawing department or Spinning department or Warp Winding department, the petitioner is legally bound to abide by the said transfer policy and he may join on any of the abovementioned three departments as per his choice if he wants to work in the OP company. Accordingly the petitioner is directed to join his duty on 06.01.2024 in any of the abovementioned Drawing department or Spinning department or Warp Winding department in the OP company as per his choice and submit his joining report before this Tribunal on 08.01.2024 and if he joins, the OP company is directed not to demand any eligibility and competence certificate from him to work in any of the abovementioned departments as per his choice till his retirement. Page 5 Το 08.01.2024 for submitting report of joining by the petitioner.” Sd/- Judge 2nd Industrial Tribunal 05.01.2024” 13. The said order of the Tribunal was complied with and vide an order dated 29th January, 2024, the Tribunal decided the case under Section 10(1B) (d) of the Industrial Disputes Act and disposed of the said case on contest on the following findings:- “……….Considering the pleadings of both sides, I find that there was a dispute regarding the place where the petitioner will work and admittedly the petitioner used to work before 28.02.2020 in the Roving Department of the OP company and on 28.02.2020 his Service was terminated by the OP company and according to the written statement of the OP company, the said Roving Department had not been functioning at that time due to wait of order for production of materials and it was temporarily closed and for this reason the OP company gave proposal to the petitioner to join his duty in the Spinning Department, Drawing Department or Warp Winding Department, which was refused by the petitioner. Though the OP company gave proposal to the petitioner to work in any of the three (03) departments of the OP company i.e. Spinning Department, Drawing Department or Warp Winding Department, the OP company did not allow the petitioner earlier to work in the Roving Department wherein he had been working for a long time since his joining and this circumstance admitted by the OP company in his written statement and in the written statement of the petitioner sufficiently prove that the OP company refused the petitioner to join his job in the Roving Department and as the OP company permitted the petitioner to join his service on consent of Page 6 the OP company, there is no legal necessity to proceed for trial because if any facts and circumstances alleged by the petitioner are admitted by the OP company in its written statement, it will be treated as admission of the allegations of the petitioner. So considering the entire materials on record, I hold that on consent of the OP company and with the permission of the OP company the petitioner has joined his service in the Warp Winding Department on 07.01.2024 and accordingly the petition dated 08.01.2024 filed by the OP company praying for hearing on merit does not arise legally and accordingly it is rejected. As the petitioner has joined his service on 07.01.2024 in the OP company with the permission of the OP company in the department as per the suggestion of the OP company, I hold that there is no legal necessity to proceed further with this case and the prayer of the petitioner for reinstatement in service has already been allowed with the permission of the OP company and at present he is only entitled to get all full back wages with other consequential benefits from 28.02.2020 till 06.01.2024 from the OP company. Hence, it is Ordered That case no. 13/2020 under section 10(1)(b)(d) of the Industrial Disputes Act, 1947 is disposed of on consent of the OP company. It is hereby declared that the termination of service of the petitioner by way of refusal w.e.f. 28.02.2020 by the OP company was illegal and the petitioner is entitled to get back all the full back wages with other consequential benefits from 28.02.2020 till 06.01.2024 from the OP company and the OP Company is directed to pay the said full back wages with other consequential Page 7 benefits from 28.02.2020 till 06.01.2024 to the petitioner within one month from this date of order. Let the order to be treated as an award. According to Section 17AA of The Industrial Disputes Act, 1947, let a certified copy of this Award be sent to the Principal Secretary to the Government of West Bengal, Labour Department, New Secretariat Buildings, 1, K.S. Roy Road, Kolkata 700 001 for information, and let a certified copy of this Award be supplied to each of both the parties of this case, free of cost, forthwith for information. The case is disposed of today. Sd/- Judge 2nd Industrial Tribunal 29.01.2024” 14. It appears from the materials on record and the orders challenged before this Court that vide order dated 05.01.2024, the tribunal held that due to lack of work in the Roving department, the company was ready and willing to permit the workman to work in any other department being the Drawing department, Spinning department and Warp Winding department. Admittedly the petitioner refused the work in any other department except the Roving department. The tribunal then directed the petitioner to join his duty on 06.01.2024 in any other department as stated by the OP company and permitted him to work till retirement. 15. As such it is prima facie found that it is the workman who had refused to work in any other department where there was work. Page 8 The petitioner refused to work in any other department other than the Roving department where there was almost no work. 16. The said observations of the tribunal clearly prima facie shows that it is the workman who refused to join and it is not the OP company who stopped him from joining. 17. Vide the order dated 29.01.2024 while disposing of the case by passing an award the tribunal held that there was a dispute regarding the place where the petitioner will work. It has been held that the petitioner used to work in the Roving department till 28.02.2020 (workman choice). 18. The tribunal held that the OP company terminated the workman’s service on 28.02.2020, but there is no such document to substantiate that the services of the workman was terminated by the OP company on 28.02.2020. The tribunal only on the written statement of the petitioner without any documents, relied upon the said statement and held that he had been terminated and he is entitled to full wages. 19. The said observations and the findings of the tribunal is clearly not in accordance with law being not based on any evidence and is against the principles of natural justice. More so, because of the fact that, it is on record that the workman was refusing to join any other department other than the Roving department. It is Page 9 only after the tribunal passed an order dated 05.01.2024 that he was joined a department other than the Roving department. Thus, it is only on the statement of the workman, without any evidence being adduced that the tribunal passed such an order allowing full back wages. 20. It is clear from the records that the workman was adamant about working only in the Roving department and no other department. As such there being no document to show that he was terminated by OP company and also the fact being on record that the petitioner refused to join any department where there was work and continued to insist that he would work only in the Roving department, goes to prima facie show that it is the petitioner who had not joined this work as he had been allotted work in other departments other than the Roving department. 21. It also appears that the dispute was not decided on merit by the tribunal. The tribunal on the finding that as the OP/company consented/permitted the workman to join his service on 07.01.2024 hearing the case on merit was not required. 22. Admittedly the case was not heard on merit, inspite of the petitioner/company herein praying for the same. Page 10 23. The dispute before the tribunal was in respect of the “issue” as to whether the workman was not permitted to join or whether the workman willfully abandoned his services. 24. The answer to the above issue was to be the answer to the dispute before the tribunal regarding his entitlement of full back wages. 25. The consent was only regarding joining of the workman in any department other than the Roving department, as there was no work in the Roving department. 26. There was no consent or admission on the part of the company admitting that they had not permitted the workman to join. It is the company’s specific case that the workman abandoned his service. 27. The said dispute/issue is to be decided on merit by adducing proper evidence by the parties herein. 28. Accordingly, the award dated 29.01.2024 and order dated 23.07.2024 passed by the Second Industrial Tribunal, West Bengal in Case No. 16 of 2020 is hereby set aside and the tribunal is directed to hear the case being no. 16 of 2020 on merit, in accordance with law by permitting the parties to adduce evidence and on hearing the parties, dispose of the case by passing a reasoned order, preferably within six months from the date of this order. Page 11 29. WPA 28727 of 2024 and WPA 28740 of 2024 are disposed of accordingly. 30. All connected applications, if any, stand disposed of. 31. Interim order, if any, stands vacated. 32. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities. [Shampa Dutt (Paul), J.]