THE GAUHATI HIGH COURT v. THE STATE OF ASSAM AND 2 ORS

Advocate for the Petitioner : MR. B. DUTTA Advocate for the Respondent : GA, ASSAM Page No.# 2/6 Linked Case : WP(C)/5586/2021 THE MANAGEMENT OF MAHAKALI TEA ESTATE P.O. HOOGRIJAN DIST. TINSUKIA ASSAM ONE OF THE TEA ESTATES OWNED BY M/S LUXMI TEA CO. PVT. LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE INDIAN COMPANIES ACT 1882 HAVING ITS REGISTERED OFFICE AT KISHORE BHAWAN 700001 REPRESENTED BY ITS CONSTITUTED ATTORNEY/COMPANY SECRETARY AND LEGAL OFFICER NAMELY MS ABHA BAFNA AGED ABOUT 38 YEARS D/O SRI NARPAT SINGH BAFNA. VERSUS THE STATE OF ASSAM AND 2 ORS REPRESENTED BY ITS SECY. TO THE GOVT. OF ASSAM LABOUR WELFARE DEPTT. DISPUR GUWAHATI 781006 2:THE ASSTT. LABOUR COMMISSIONER TINSUKIA DIST. TINSUKIA ASSAM PIN 786125 3:THE SECY. ASSM CHAH KARMACHARI SANGHA TINGRI CIRCLE BORDOBI P.O. HOOGRIJAN DIST. TINSUKIA ASSAM. ------------ Advocate for : MR. B. DUTTA Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 2 ORS Page No.# 3/6 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

19.09.2022 ORDER Heard Shri B. Dutta, learned Senior Counsel for the petitioners. Also heard Ms. A. Bhattacharyya, learned counsel for the respondent no. 3 whereas the State is represented by Shri M. Chetia, learned Government Advocate, Assam.

2. Both these writ petitions are similar wherein a challenge has been made to an order dated 06.09.2021 passed by the learned Industrial Tribunal, Dibrugarh in Reference Cases nos. 1/2021 and 2/2021. Whereas in WP(C)/5574/2021, the petitioner is the Management of Attabari Tea Estate, in WP(C)/5586/2021 the petitioner is the Management of Mahakali Tea Estate and both the Tea Estates are owned by the Luxmi Tea Company Private Limited.

3. Upon purchases of the Tea Estates, the pension scheme which was prevalent was withdrawn by the Management and accordingly an issue was raised which went up to conciliation. The matter was referred by the appropriate Government by way of a reference to the learned Industrial Tribunal, Dibrugarh with the following terms of reference- “1. Whether the management of Attabari Tea Estate is justified in discontinuing a service condition brought on by a trilateral (conciliation) agreement dated

06.10.1969 between the Management of Moran Tea Company (I) Ltd and Assam Chah Karmachari Sangha signed in the office of the Asst. Labour Commissioner, Dibrugarh.

2. Does the acquisition of the Luxmi Tea Group provide them the necessary authority to alter a service condition? Page No.# 4/6

3. Is the notice under section 9A of the Industrial Dispute Act 1947 valid?

4. What relief the workman is entitled to in case the discontinuation of the above service condition is termed as invalid?” Though reference in WP(C)/5586/2021 is slightly different, the substance is the same.

4. After receiving notice, the petitioners had raised a preliminary issue – firstly, that the issue involved was one which would fall for adjudication under the Labour Court and not under the Industrial Tribunal. Secondly, it was questioned as to whether the agreement between the erstwhile employers would bind the present petitioners and thirdly as to whether the retired employee would fall within the definition of the workmen under 2 (s) of the Industrial Disputes Act, 1947. The learned Tribunal vide the impugned order dated 06.09.2021 has come to a finding that the preliminary objections are not sustainable and had proceeded to hear with the matters and at that stage, these two writ petitions have been filed wherein there are interim orders not to proceed further.

5. Shri Dutta, learned Senior Counsel submits that though the writ petitions have been structured to challenge the order dated 06.09.2021, the present prayer would be limited if the matter is remanded to the learned Tribunal to decide on the question of binding affect of the agreement vis-à-vis Section 18 of the Industrial Disputes Act,

1947. So far as the other issues are concerned, the learned Senior Counsel for the petitioners submits that he would abide by the findings arrived at by the learned Tribunal as those are preliminary in nature and the issues are yet to be decided on merits.

6. On the other hand, Ms. Bhattacharyya, learned counsel for the respondent no. 3 submits that the present issue raised is beyond the pleadings inasmuch as, in the application raising preliminary issue, the main issue was the issue of jurisdiction namely that the Industrial Tribunal did not have jurisdiction and it was the Labour Page No.# 5/6 Court and this issue has been rightly decided by the Tribunal vide the order dated

06.09.2021. She further submits that there is no reference to the present issue involving Section 18 of the Act of 1947 in the entire petition and by following the law that a Tribunal cannot traverse beyond the scope of the reference made, the remand presently prayed for is not at all justified.

7. The rival submissions made by the learned counsel for the parties have been carefully considered. To decide the controversy that has arisen, it would be necessary to have a close look at the terms of reference. The first point of reference is regarding the justification of this continuing a service condition by the petitioners which was a part of the agreement dated 06.10.1969, the same has already been quoted above.

8. The second point of reference is also intrinsically connected with the first issue inasmuch as, it concerns the authority to alter a service condition by a successor. Since, it is the contention of the petitioner that the agreement dated 06.10.1969 would not have a binding affect on the petitioner, the question will immediately arise with regard to the applicability of Section 18 of the Act of 1947. Though, Ms. Bhattacharyya, learned counsel for the respondent no. 3 is correct in contending that issue of applicability of Section 18 was not raised as a preliminary issue, in the opinion of this Court, the determination of the said issue will have a clinching effect on the entire merits of the disputes between the parties.

9. The concept of framing a preliminary issue is not alien to the aspect of dispensation of justice by an Industrial Tribunal or a Labour Court as in many of the cases concerning disciplinary proceeding, the fairness of domestic enquiry in such proceeding is normally decided first and only thereafter the Tribunal or the Labour Court enters into merits. That being the position, the interest of justice would be met and the equities would be balanced if the matter is remanded to the learned Tribunal to decide on the question of applicability of Section 18 of the Act of 1947 vis-à-vis the binding affect of the agreement dated 06.10.1969. Page No.# 6/6

10. It is needless to state that though the issue is preliminary in nature, the parties would be at liberty to adduce evidence to prove their respective cases.

11. This Court also finds in appropriate to pass the present direction inasmuch as, the entire object of making the reference was getting frustrated as an interim order is in operation causing delay to the disposal of the lis between the parties.

12. The matters accordingly stand remanded to the learned Industrial Tribunal, Dibrugarh. At this stage, this Court has been informed that at present the concerned Tribunal is not functioning due to absence of the Presiding Officer. The parties may accordingly appear before the Tribunal immediately on re-functioning of the Tribunal from the said date, the Tribunal would take charge of the matter and proceed in accordance with law.

13. Both the writ petitions accordingly stand disposed of. JUDGE Comparing Assistant