Government of West BengalLabour Department

I.R. BranchN.S. Buildings,1ih floor,

1, K.S.Roy Road, Kolkata-1

No.Labr./186/(LC-IR)IR/1OL-38/11 (B)

Dated, Kolkata, 17.2.17.

ORDER

WHEREAS an industrial dispute existed between MIS. Hindustan Motors Ltd ,PO -Hindmotor, P.S -Uttarpara, Dist.Hooghly and Sri Himangsu Singha,VillKanaipur Colony, P.O.Kanaipur, P.S Uttarpara, Dist.Hooghly regarding the issuebeing a matter specified in the Second Schedule to the Industrial DisputeAct,1947(14 of 1947);

AND WHEREAS the workman has filed an application under Section10(IB)(d) of the Industrial Dispute Act,1947(14 of 1947) to the Judge, First LabourCourt specified for this purpose under this Deptt.'s Notification No 1085-IR/12L-9/95dtd 25 07,97,

AND WHEREAS, the Judge of the said First Labour Court heard the partiesunder section 10(IB)(d) of the I.D. Act,1947(14 of 1947) and framed the followingissue dismissal of the workman as the "issue" of the dispute

ISS U E1. Is the present proceeding uls 10(IB)(d) of the I.D. Act,1947 maintainable?2, Is the termination of service of the applicant w.e.I. 01.11.06 is in the form of

his superannuation on attaining the age of 60 years or his dismissal fromservice by way of refusal of employment w.e.f. 01.11.06 and is it justified andlegal?

3, Is the impagred form of appointment of the Company as regards the year ofbirth of the applicant false, fraudulent and collusive?

4. To what relief, if any, is the applicant entitled?

AND WHEREAS, the said Judge, First Labour Court has submitted to theState Government its Award under section 10(IB)(d) of the I.D Act,1947(14of 1947) on the said Industrial Dispute.Now, THEREFORE, in pursuance of the provisions of Section 17 of theIndustrial Dispute Act,1947(14 of 1947), the Governor is pleased hereby topublish the said Award as shown in the Annexure hereto.

ANNEXURE(Attached herewith)

By order of the Governor

§t{~Deputy Secretary to the

Government of West Bengal.

No.Labr./186/1 (5)/(LC-IR) Dated, 17.2.17.

Copy with a copy of the Award forwarded for information & necessary actionI to _

1. Mis. Hindustan Motors Ltd., P.O.Hindmotor, P.S.Uttarpara, DistHooghly, Pin-712233.

2. Sri Hirnanqsu Singha, Vill.Kanaipur Colony, P.O.Kanaipur, P.S.Uttarpara,DistHooghly, Pin-712 234.

3. The AssttLabour Commissioner, W.B.ln-Charge, Labour Gazette.4. The Labour Commissioner, W.B., N.S.Bldgs.,(11th floor), 1, K.S.Roy Rd., Kol-

I ~he O.S.D., IT Cell, Labour Deptt., with the request to cast the Award in theDepartment's website. . /

-----------------~Deputy Secretary

No.Labr./186/2(2)/(LC-IR). Dated, 17.2.17.

Copy forwarded for informa ion to :-

1. The Judge, First Labour Co ,Kolkata, with respect to his Memo No.166-LT,dtd.31.01.17.

2. The Joint Labour Commissioner tatistics), West Bengal, 6, Church Lane,Kol-1.

Deputy Secretary

Jnt/order

In the matter of an application under Section 10(1B) (d) of the Industrial Disputes Act, 1947filed by Himangsu Singba village- Kanaipur Colony, P.O.- Kanaipur, P.S. Uttarpara, Dist­Hooghly being the Applicant against MIS Hindustan Motors Ltd. having its registered officeat P.O.- Hindmotor, P.S.- Uttarpara, Dist- Hooghly being the Opposite Party No. 11Companyand others

(Case no. 13 of2009 under Section 10(IB) (d) of the Industrial Disputes Act, 1947)

Present: hlilBnjane. Chettcrjez, )udg\Z,first LebourCourt,KolkBta.

Dated: 3pt january, 2017

AWARD

The conflict that led an individual workman by the name of Himangsu Singha to raise anindustrial dispute against its employer being Mis Hindustan Motors Ltd. is narrated below in anutshell.

The applicant workman claims to have been discharging his duties in the O.P. Companycontinuously since 01.1.1993 without a stain or stigma. It is alleged that the Company instead ofawarding the applicant for his sincere and honest efforts forcibly made him retire at the age of 55years on 01.10.2005 before he attained the age of superannuation. According to the applicant, hisdate of birth is 16.01.1951 but his age record has been manipulated by the Company owing to itsillegal Certified Standing Order. It has been alleged by the applicant in his written statement ofclaim that the employees are deprived of their lawful right to have their appointment letter fromthe employer Company along with the particulars of their recorded age. The applicant has sentnotices to the company against premature retirement dated 01.10.2005 but all his efforts wentunnoticed and fruitless. On such averments and more the applicant has prayed for hisreinstatement in the service with effect from 01.11.2006 till the age of his retirement on15.01.2009 together with back wages from 01.11.2006 to 15.01.2009.

The O.P has contested this case by filing written statement and cross-examining theapplicant though it did not adduce any evidence on its behalf. In the written statement, the O.Phas challenged the maintainability of the case on the ground that the Conciliation Officer was notright in issuing certificate in absence of subsistence of an industrial dispute. The writtenstatement filed by the O.P., more or less, is denial of the case of the applicant. It has beenasserted on the part of the O.P that the applicant was superannuated in due time and theallegation of the applicant that he was only 55 years at the time of superannuation is baseless.

Taking sustenance from the averments and allegations of the two pleadings, the followingissues have been framed:

ISSUES

1. Is the present proceeding under Section 10(1B)(d) of the Industrial Disputes Act, 1947maintainable?

2. Is the termination of service of the applicant w.e.f.01.11.2006 is in the form of his superannuation on attaining the age of 60 years or his dismissalfrom service by way of refusal of employment w.e.f 0 1.11.2006 and is it justified and legal?

3. Is the impugned form of appointment of the Company as regards the year of birth ofthe applicant false, fraudulent and col1usive?

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4. To what relief, if any, is the applicant entitled?

During the hearing of the case on merit, the applicant Himagshu Singha has deposed asPW-1 and the following documents have been marked as Exhibit for the applicant:

1. Exhibit no. 1 Photocopy of Higher Secondary Certificate;

2. Exhibit no. 2 Photocopy of Identity card;

3. Exhibit no. 3 Photocopy of Provident Fund;

4. Exhibit no. 4 Photocopy of Family Members 1. Card;

5. Exhibit no. 5 Photocopy of letter dated 0l.1 0.2005;

6. Exhibit no. 6 Photocopy of letter dated 27.11.1970;

7. Exhibit no. 7 Photocopy ofletter dated 26.09.1979;

8. Exhibit no. 8 Photocopy of Pay roll;

9. Exhibit no. 9 Photocopy of Pay slip;

10. Exhibit no. 10 Photocopy of statement of Provident Fund

The O.P did not adduce any evidence on its behalf though the following documents havebeen marked as Exhibits on its behalf on admission by the PW-1 :

l. Exhibit 'A' Photocopy ofletter dated 03.10.1993;

2. Exhibit 'B' Photocopy of Provident Fund Declaration;

3. Exhibit 'C'by the O.P.

Photocopy of letter dated 29.06.2009 sent to the applicant

Now, I shall proceed to adjudicate all the issues on materials available on record.

ISSUENO.i:

The maintainability of the case has been challenged on the ground that the Conciliation

Officer erred in issuing a certificate of pending dispute though there was no subsistence of any

Industrial Dispute. This plea, however, was not keenly contested at the time of hearing of the

case. No oral argument was advanced on behalf of the Company either in support of this plea.

Nevertheless, I have gone into the objection raised by the O.P. and materials on record to

convince myself about the maintainability of the case before proceeding towards the other issues.

The section 10(lB) reads:

(a) Notwithstanding anything contained elsewhere in this Act, where in a conciliation

proceeding of an industrial dispute relating to an individual workman, no settlement is arrived at

within a period of sixty days from the date of raising of the dispute, the party raising the

dispute may apply to the Conciliation Officer in such manner and in such form as may be

prescribed,for a certificate about the pendency of the conciliation proceedings.

(b) The Conciliation Officer shall, on receipt of the application under clause (a) issue a

certificate within seven days from the date of receipt in such manner, in such form and

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containing such particulars as may be prescribed. A copy of the certificate shall also be sent to

the appropriate Government for information.

(c) The party may, within a period of sixty days from the receipt of such certificate or,

where such certificate has not been issued, within a period of sixty days commencing from the

day immediately after the expiry of seven days as aforesaid, file an application in such form and

in such manner and with such particulars of demands as may be prescribed, to such Labour Court

or Tribunal as may be specified by the appropriate Government by notification. Different Labour

Courts or Tribunals may be specified for different areas or different classes of industries.

(d) The Labour Court or Tribunal specified under clause( c) shall, within a period of thirty

days from the date of receipt of an application under clause (c), give a hearing to the parties and

frame the specific issues in dispute, and shall thereafter proceed to adjudicate on the issues so

framed as if it were an industrial dispute referred to in sub-section (1).

Raising an industrial dispute with the Company is the condition precedent to filing an

application under Section 10(1B)(d) of the Industrial Disputes Act, 1947 [ hereinafter referred to

as the Act for the sake of brevity]. On perusal of the record, it appears that on 27.08.2008, the

applicant had raised the dispute with the Company by a letter addressed to the Deputy Labour

Commissioner, Serampore. On 02.12.2008 and 20.12.2008 the applicant applied for issuance of a

pendency of dispute Certificate. On 17.12.2008, the applicant had also sent a notice through his

Learned Advocate Mr. Narayandas Banerjee making the same claim.

The present case has been filed under section 10(1B) of the Act. The Act is very much

clear as to the time limit for filing an application under Section 10(IB) of the Act. It says that if

the dispute is not settled within 60 days of raising the dispute, the party can apply to the

Conciliation Officer to issue a certificate as to pendency of dispute. The conciliation Officer

must issue such certificate within seven days on receipt of such application from the party and

the application under Section 10(1B) may be filed within 60 days from the date of receipt of the

certificate. If no certificate is issued, the application under Section 10(1B) of the Act can be filed

within sixty days commencing from the day immediately after the expiry of seven days as

aforesaid. The applicant himself has averred that he has raised the industrial dispute by the letter

dated 27.08.2008; a copy of which has been annexed as P-l1. The first letter for issuance of

pendency certificate was sent on 02.12.2008 long after the expiry of sixty days from raising the

industrial dispute. Circumstances suggest that no pendency certificate was issued in favour of the

applicant within seven days of the application of the workman as is required by the statute. The

application under section 10(IB) was, thereafter, received on 12.05.2009 which too is way after

the sixty days commencing from the day immediately after the expiry of seven days as aforesaid.

Rule 12A of the West Bengal Industrial Disputes Act, 1958 also lays down the period of

limitation for filing an application under Section 10(1B) of the Act as sixty days from the date of

receipt of certificate or where certificate has not been issued within 7 days under sub-rule (3),

within a period of 60 days commencing from the day immediately after expiry of 7 days as

aforesaid. Rule 12A requires the party to file an application in Form T to the Labour Court or

Industrial Tribunal.

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The present case has clearly been not filed within the period of limitation laid down in

section 10(1B) of the Act and Rule 12A framed under the West Bengal Industrial Disputes

Rules, 1958. In fact, the cause of action though arose with the Exhibit no. 5 and then on

01.11.2006, the present case was filed on 12.05.2009. The Section 10(1B) of the Act has been

inserted by way of West Bengal Amendment providing for relief to an individual workman. This

provision, however, sets a period of limitation for claiming the relief enumerated in the Section.

The applicant of this case has failed to approach the court in due time.

Accordingly, though the industrial dispute was raised by the applicant, the application

under section 1O( 1B)(d) of the Act is clearly barred by limitation. The issue of limitation touches

upon the maintainability of the case. This crucial and decisive issue having been decided against

the applicant is a fatal blow to the case of the applicant. The applicant after receiving his letter of

retirement on 01.10.2005 sat idle. Even after raising a dispute, the applicant continued to delay

matters and failed to meet the sixty days limit set by the statute which ultimately resulted in

barring the relief available to the applicant. Subsequent issuance of certificate beyond the time

set by the statute, if any, by the Conciliation Officer, would not have the effect of extending the

period of limitation.

As such, the Issue no. 1 is decided against the applicant.

ISSUE NOS. 2, 3 & 4:

Since the relief claimed by the applicant is barred by limitation, it is needless to discuss

the rest issues. The applicant is not entitled to any relief whatsoever under Section 10(1B)(d) of

the Act.

Accordingly, the case is decided against the applicant.

Hence, it is

ORDERED

the application under Section 10(1B)(d) of the Industrial Disputes Act, 1947 be and the same is

dismissed on contest without costs.

This is my award.

The copy of the award be sent to the concerned department of the Government.

Soq ---Judge.

SJ/-(Nilanjana Chatterjee)

Judge,First Labour Court

Kolkata.31.01.2017

Typed by me.