No.Labr.l405/(LC-IR)IR/11L-22/2017

Government of West BengalLabour Department

I.R. BranchN.S. Building, Block-' A', tz" Floor,1, K. S. Roy Road, Kolkata-700 001.

Dated, Kolkata, the 17thApril, 2017.

ORDER

WHEREAS an Industrial Dispute existed between Mis. Metro TheatreCalcutta Ltd, 5, Jawaharlal Nehru Road, Kolkata-700 013 and Sri Syed IqbalHussain, C/o. Siddique Book Depot, 121, Rabindra Sarani, Kolkata-700 073regarding the issue, being a matter specified in the Second Schedule to theIndustrial Disputes Act, 1947 (14 of 1947);

AND WHEREAS the workman has filed an application under section10(1B)(d) of the Industrial Disputes Act, 1947 (14 of 1947) to the Judge, SecondLabour Court, Kolkata specified for this purpose under this Deptt. 's Notification No.1085-IR/12L-9/95 dated 25.07.1997;

AND WHEREAS, the Judge, of the said Second Labour Court heard theparties under Section 10(1B)(d) of the Industrial Disputes Act, 1947 (14 of 1947);

AND WHEREAS the said Judge, Second Labour Court, Calcutta hassubmitted to the State Government its Award u/s 10(1B)(d) of the Industrial DisputesAct, 1947 (14 of 1947), on the said Industrial Dispute;

NOW, THEREFORE, in pursuance of the provisions of Section 17 of theIndustrial Disputes Act, 1947 (14 of 1947), the Governor is pleased hereby to publishthe said Award as shown in the Annexure hereto.

ANNEXURE(Attached herewith)

By Order of the Governor

Assistant Secretary to theGovernment of West Bengal.

Contd ........ P/2

" 2 "NO.Labr.l405/1 (5)/(LC-IR) Dated, Kolkata, the 17thApril, 2017.

Copy with a copy of the Award forwarded for information and necessaryaction to:-

1. Mis. Metro Theatre Calcutta Ltd., 5, Jawaharlal Nehru Road, Kolkata-700 013.

2. Sri Syed Iqbal Hussain, C/o. Siddique Book Depot, 121, Rabindra Sarani,Kolkata-700 073.

3. The Assistant Labour Commissioner, West Bengal In-Charge, Labour Gazettee.

4. The Labour Commissioner, West Bengal, New Secretariat Buildings, (t t" floor),1, K. S. Roy Road, Kolkata-700 001.J The O.S.D., I.T. Cell, Labour Department, with the request to cast the Aw rd in

the Department's website.

No.Labr.l405/2(2)(LC-IR)

Assistant Secretary

Dated, Kolkata, the 1ih April, 2017.

Copy rwarded for information to :-

1. The Judge, cond Labour Court, West Bengal, with respect to his Memo No.344-L.T. dated 10.0 . 017.

2. The Joint Labour ommissioner (Statistics), West Bengal, 6, Church Lane,Kolkata-700 001.

Assistant Secretary

~ =- f

~~\

In the matter of an application U/s. 10(1 B) of the Industrial Disputes Act,

1947 filed by Sri Syed Iqbal Hussain, Clo. Siddique Book Depot., 121,

Rabindra Sarani, Kolkata- 700 073 against M/s.Metro Theatre Calcutta

Ltd., 5, Jawaharlal Nehru Road, Kolkata-700 013.

(Case No. 02/2010 U/s. 10(18) (d) of Industrial Disputes Act)

BEFORE THE SECOND LABOUR COURT, WEST BENGAL.KOLKATA

PRESENT: SMT. ALI BISWAS (SARKAR), JUDGESECOND LABOUR COURTKOLKATA.

A WARD

This is an application under Section 10(18)(d) of the Industrial Disputes

Act, 1947. The applicant filed the instant application challenging the order of

termination and prays for reinstatement along with back wages. After obtaining

pendency certificate on 10.11.2009, the applicant filed the instant case before this

court.

The applicant's case in brief, is that, he joined the O.P. company with

effect from 01.09.86 vide appointment letter dated 01.09.1986 as Assistant

Treasurer on probation. Subsequently his service was confirmed against

permanent vacancy as Assistant Treasurer w.e.f 01.12.86. The O.P. company

with the intention to victimize him sent a show cause letter dated 18,04.98 for an

incident occurred on 28.12.97 and he was suspended from service w.e.f.

18.04.1998. The applicant also submitted his reply by his letter dated 20.04,98

against the show cause letter. It is stated in the written statement that the o.P,

company vide its letter dated 21,09.98 withdrew the disciplinary proceeding

against the applicant allowed him to join promoting him to Works Manager. In

the said letter dated 21.09.98 it was stated that he will have no power to make and

receive any kind of payment on behalf of the company, nor he will sign any

documents on behalf of the company. He also never supervised the work of other

employees of the company and had no power to appoint or terminate anyone,

Thereafter, by letter dated 02.12.98 the company again charge sheeted the

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applicant on false, vague charges. He was also suspended w.e.f. 02.12.98 along

with the charge sheet. The applicant by his letter dated 11.12.98 submitted his

reply denying all the charges as baseless and false. Thereafter a domestic enquiry

was held in gross violation of natural justice. The applicant was not given any

reasonable opportunity to defend himself and the enquiry officer was biased. On

30.05.2001 the enquiry officer submitted his report finding the applicant guilty of

the charges which is also perverse. Thereafter, by letter dated 28.06.2001 the

company sent a second show cause notice stating that the management has

decided to dismiss the applicant. Thereafter, the O.P. company dismissed the

concerned workman w.e.f. 07.09.2001 without considering his reply to the second

show cause notice. It is stated in the written statement that the concerned

workman raised an industrial dispute seeking the intervention of the labour

Commissioner dated 18.09.2001. Since the same could not be decided the

applicant filed an application for certificate of pendency and the same was granted

by the conciliation officer in Form-S on 10.11.2009. Thereafter, the applicant has

filed the instant case before this court praying for to pass an award according to

the prayer of the written statement filed by the applicant. It is also stated in the

written statement that the last drawn salary of the applicant was Rs. 3689/- per

month and he is still unemployed.

On receiving summon the O.P. company entered appearance in this case

and contested this case by filing written statement. Subsequently due to non

taking of steps by the O.P. company vide order no. 47 dated 29.04.2014, this case

was fixed for ex-parte hearing.

It transpires from the record that the applicant Syed Iqbal Hussain himself

has been examined as P.W.l. Several documents have been marked as Ext. 1 to

Ext. 13.

Be it mentioned that in the writ petition No. 584/2011 filed before the

Hon'ble High Court Calcutta in connection with this case, the Hon'ble Mr. Justice

Debasis Kar Gupta has been pleased to pass an order dated 09.06.2011 " Further

proceedings of Case No.2 of 201 0 pending before the Learned Judge, 2nd Labour

Court, Kolkata is stayed until further orders."

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NO.2437/2011 was filed by the applicant. It is seen from the case record that

Hon'ble Mr. Justice Mr. J.P. Mukherjee in the said G.A. No. 2437/2011, W.P.No.

584 of 20 11 vide order dated 31.07.2015 has been pleased to pass an order "None

appears for the parties even at the second call. Non accommodation is sought.

This application is dismissed for default. Interim order, if any, is vacated."

DECISION WITH REASON

The applicant Syed Iqbal Hussain has filed this case U/s. 10(lB)(d) of the

Industrial Disputes Act, 1947. The applicant i.e. P.W.l has stated in the evidence

that he used to work under the O.P. company and his nature of job was to prepare

the box office statement, preparation of House rent allowance of the staffs and the

accounts matter. On 18.04.98 a show cause notice was issued to him by the O.P.

and he was suspended. Thereafter, the company issued a letter to him asking him

to join in duty. Thereafter, he joined and was promoted to the post of Works

Manager. In spite of his joining to the post of promotion he was directed by the

O.P. concern to continue the same nature of the works which he performed earlier

prior to his suspension. The O.P. asked him to keep vigilance on the spectators by

standing in the gate and submit the report to the management time to time. On

02.12.98 the O.P. company issued a charge sheet against him. But no complaint

letter has been annexed with the charge sheet. He gave reply to the charge sheet

on 11.12.98 and the O.P. company conducted a domestic enquiry against him. At

the time of enquiry the O.P. management asked him not to be represented by any

other person of his choice. The eye witnesses of the incident did not depose in the

enquiry proceeding. Subsequently the O.P. company issued the order of dismissal

against him on 07.09.2001. Thereafter. he raised the industrial dispute and has

filed the instant case before this court praying for dismissal of the enquiry

proceeding and a prayer for reinstatement along with back wages. It is also the

case of the applicant that he has no source of income and his last drawn salary

was Rs. 3689/- per month.

Now let me consider whether the applicant has been able to prove the

instant case in order to get the relief as prayed for.

It appears from the record that the enquiry report dated 30.05.2001 is

4 - .1

In this case the O.P. company has not come up before this court in order to

prove the findings of the enquiry report submitted by the enquiry officer on the

basis of the charge levelled against the applicant. Thus, it is crystal clear that the

enquiry report has not been proved against the applicant due to non-proving of the

same by the O.P. company.

In spite of the fact that the enquiry report has not been proved against the

applicant, I am of opinion that for the interest of justice following discussion is to

be made regarding the validity of the enquiry report submitted by the enquiry

officer against the applicant.

It appears from the charge sheet (Ext.o) that noting has been mentioned in

which particular date the incident occurred for which the charges levelled against

the applicant by the management. Along with the charge sheet no complaint letter

has been annexed. It also appears from the enquiry report that the eye witnesses of

the incident has not been examined in the enquiry proceedings according to the

request of the delinquent workman.

On the basis of the above observation, I am of view that the enquiry

officer did not follow the principle of natural justice and did not give proper

opportunity to the applicant to defend his case at the time of domestic enquiry.

So, in my considered opinion the enquiry proceeding along with enquiry

report is not proper and valid in the eye of law and is liable to be set aside. Thus,

the domestic enquiry is found to be improper, invalid and the same is not

acceptable. The finding of the enquiry officer in the enquiry report is liable to be

set aside.

Fact remams that the oral and documentary evidence adduced by the

applicant in this case remains unchallenged as the same has not been contradicted

by the O.P. company.

It is the case of the applicant that he used to work in O.P. company as a

workman, his last drawn salary was Rs. 3689/- and he is not gainfully employed

elsewhere till date. The O.P. company has not denied it by adducing evidence.

Considering the unchallenged oral and documentary evidence, I am of

opinion that it has been clearly proved that the applicant/workman used to work in

5

the O.P. Company and the enquiry report submitted against him being not proved

is liable to be set aside.

Considering these unchallenged evidence on record, I am of opinion that

there is no reason to disbelieve the case of the applicant.

Considering all aspects I am of view that the applicant succeeds to prove

his case by cogent oral and documentary evidence and he is entitled to get order

of re-instatement with full back-wages along with consequential benefits as

prayed for.

Hence,

Ordered

that the instant case under Section 10(l8)(d) of I. D. Act is allowed on ex-parte

against O.P. company. The G.P. company is directed to re-instate the applicant in

service and to pay full back-wages to the applicant and other consequential

benefits with effect from 07.02.2001 within the period of90 days from the date of

passing of this award failing which the applicant shall be at liberty to take the

recourse of law.

This is my Award.

Dictated & corrected by me.

ll-Judge

Ali Biswas (Sarkar)Judge

Second Labour CourtKolkata

09.03.2017

~a~Se,'Ond ~ur Court W.B