At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE SHEKHAR B. SARAF
For the Petitioners: Subir Sanyal, J. Mandal, M. Kundu, Advocates. For the Respondents: Nandini Mitra, Sanjay Saha, Arunava Ghosh, Dipak Kr. Bhattacharyya, R4, Atasi Ghosh, Advocates.
1. This is an application under Article 226 of the Constitution of India wherein the Bharat Petroleum Corporation Limited (hereinafter called as 'BPCL') has filed a writ petition seeking a declaration with regard to a strike called on November 28, 2019 by two unions being the respondent nos.3 & 4.
2. The facts of the case are that subsequent to the notice of strike dated November 11, 2019, the petitioner and the respondent nos.3 & 4 have entered into a conciliation by the Deputy Chief Labour Commissioner (Central), Kolkata under Section 12 of the Industrial Disputes Act, 1947. It is to be noted that the management and the unions were present during the conciliation and after hearing, the matter was adjourned by the Conciliation Officer to December 11, 2019.
3. Mr. Sanyal, counsel appearing on behalf of the petitioners, submits that there is a great apprehension that the workers shall go on strike on November 28, 2019 as per the notice given on November 11, 2019. He submits that the writ court should pass a mandamus declaring the strike that has been called on November 28, 2019 as illegal and consequently pass orders restraining the members of respondent nos.3 & 4 from resorting to strike. He further submits that police protection should be given to the units and the establishments of the petitioner-company and the respondent nos.3 & 4 should be directed not to act in an illegal manner.
4. Mr. Arunava Ghosh, counsel appearing on behalf of the respondent no.4, submits that the writ petition is premature and not maintainable as it seeks a declaration and mandamus against the private parties. He further submits that the apprehension of the petitioners is unfounded as the conciliation proceedings are going on. He further submits that High Court should not intervene in this matter as the strike can only be declared as illegal by the Industrial Tribunal and the High Court should not usurp the powers of the Tribunal.
5. I have heard counsel appearing on behalf of the parties and perused the materials on record.
6. It is trite law that a writ would lie against private parties when the same relates to public utility and public purpose. Therefore, the argument with regard to maintainability of the writ petition is rejected outright. On the other hand, the declaration that is sought by the petitioners, in my view, cannot be granted at this stage.
7. It may be noted that the notice for strike was given under Section 22(1)(b) of the Industrial Disputes Act, 1947. Subsequent to the same, conciliation proceedings have been initiated and both parties have appeared before the Conciliation Officer. In such a situation, the employees of the petitioner-company are obviously bound by the provisions of Section 22(1)(d) that relates to prohibition of persons employed in public utility service from going on strike during the pendency of any conciliation proceeding.
8. The prayer of the petitioners with regard to seeking police protection and preventing the personnel of respondent nos.3 & 4 from resorting to strike outside the precincts of the petitioner-company should be made before the appropriate authorities including the police. The petitioners are at liberty to make such application before the concerned authorities for the protection of assets of the petitioner-company.
9. With regard to the declaration sought by the petitioners, I am of the view that with regard to the notice issued on November 11, 2019 with regard to the proposed strike on November 28, 2019, no order need be passed by this court as the conciliation proceedings have already been initiated. I am of the prima facie view that once the conciliation proceedings have been initiated, the employees are required to comply with Section 22(1)(d) and any action in contravention of the same would have the effect of being an illegal strike as per Section 24 of the Act. However, this view is on a bare reading of the provisions and prima facie and not a declaration by this court.
10. Mr. Ghosh and Ms. Mitra, counsel appearing on behalf of the respondents, submit that no affidavits are required at this stage and the matter may be disposed of with the directions given above.
11. The police authorities being the respondent nos.5 & 6 are directed to ensure that protection is given to the petitioners, if sought for. Furthermore, the police authorities should ensure that the law and order situation in the vicinity of the petitioner-company is maintained and persons who are willing to go on work are not disr
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upted/prevented from carrying on with their legal activities. 12. With these observations, W.P. 21828 (W) of 2019 is disposed of. 13. Since, no affidavit-in-opposition has been called for, the allegations made in the writ petition are deemed to have not been admitted by the respondents. 14. There will be no order as to costs. 15. Photostat plain copy of this order duly counter-signed by the Assistant Registrar (Court) be handed over to the parties on usual undertaking.