S.B. Sinha, A.C.J.
1. Reference to this Full Bench has been made by three different orders in this matter, as the correctness of the Division Bench decision of this Court in Ganges Printing Ink Factory Employees Industrial Co-operative Society Ltd. and Anr. v. The 7th Industrial Tribunal and Ors., 91 CWN 480, was doubted in Webel Nicco Electronics Ltd. v. Mrs. Anima Roy, (1997-II-LLJ-80) (Cal-DB), which view has been reiterated by one of us D.P. Kundu, J. in B.C. Sampat (Babulal Gordhandas Sampat) v. The State of West Bengal and Ors.. 1991 (1) CLJ 338.
2. Keeping in view the said references, one of us in CESC Ltd. v. State of West Bengal, also directed that the matter be heard by a larger Bench and in particular in view of the fact that therein inter alia, the vires of Section 15(2)(b) of the Industrial Disputes Act, 1947 as amended by the State of West Bengal, had been questioned.
3. As the questions raised before us are pure questions of law and as this Bench has been called upon to answer the reference only, it is not necessary to state the fact of the matter in detail. Suffice it to point out that in all the aforementioned cases, the services of the employees had been terminated by their employers whereafter industrial disputes were raised. In the said references prayers had been made for grant of interim relief in terms of Section 15(2)(b) of the Act which had been allowed in the case of Webel Nicco Electronics Ltd. v. Mrs. Anima Roy and: others (supra) and C.E.S.C. Ltd. v. State of W.B. and Ors., whereas, the same has been refused in the case of B.G. Sampat (Babulal Gordhandas Sampat) v. The State of W.B. supra. In B.G. Sampat's case, the Court refused to allow the prayer made by the workmen inter alia, on the ground that the State of West Bengal had no jurisdiction to make a reference under Section 10-C of the Industrial Disputes Act, 1947 as the entire cause of action had arisen outside its jurisdiction.
4. Section 15(2)(b) of the Industrial Disputes Act reads thus :--
'15 (2). Where an industrial dispute has been referred to a Labour Court or Tribunal, it shall-
(a) ........................
(b) upon hearing the parties to the dispute determine within a period of 60 days from the date of reference under Sub-section (1) of Section 10 or within such shorter period as specified in the order of reference under Sub-section (1) of Section 10 the quantum of interim relief admissible, if any;
Provided that the quantum of interim relief relating to discharge, dismissal, retrenchment or termination of service of workman shall be equivalent to subsistence allowance as may be admissible under the West Bengal Payment of Subsistence Allowance Act, 1969.'
5. The question that an Industrial Tribunal as also a Labour Court has the incidental power to grant interim relief, in an industrial proceedings in exercise of its power under Section 10(4) of the Industrial Disputes Act is no longer res-integra in view of the decision of the Supreme Court in Hotel Imperial v. Hotel Imperial Workers Union. (supra)
6. Although, such a power existed, the State of West Bengal inserted the aforementioned provision keeping in view the law's delay as would appear from the statements of objects and reasons thereof. The vires of the said provision has inter alia been questioned on the ground that as discharge, dismissal, retrenchment or termination had been classified together and some amount of subsistence allowance has to be granted despite existence of different fact situations obtaining in different cases.
7. Mr. Pal, the learned counsel appearing on behalf of the writ petitioner in W.P. No. 1013 of 1999 inter alia, submitted that the said provision is unconstitutional as by reason thereof no discretion has been conferred upon the Industrial Tribunal or the Labour Court, as the case may be, in the matter of grant of interim relief in favour of the workmen. Strong reliance in this connection has been placed on Delhi Transport Corporation v. D.T.C. Mazdoor Congress (1991-I-LLJ-395) (SC).
8. As indicated hereinbefore the power to grant an interim relief as incidental or ancillary to the main power of the Industrial Tribunal in terms of Section 10(4) of the Act is not in dispute. The right of the State to amend the provisions of Industrial Disputes Act is also not in dispute. Such a provision has been inserted admittedly because of law's delay. The question which arises is as to whether such an order should be passed mechanically? The answer to the said question, in our considered opinion, must be rendered in negative.
9. Before, however we set out our reasons therefor, we may notice that a Division Bench of this Court in Ganges Printing Ink Factory, Employees Industrial Co-operative Society Ltd. v. The 7th Industrial Tribunal and Ors., (supra), held that as the State had made a new provision, the Labour Court or the Tribunal was under a statutory obligation to award such quantum of relief as would be admissible within 60 days from the date of reference irrespective of the merit of the dispute. Construing the word 'admissible' with reference to the definition of the said expression in the perspective of the law of evidence, it was held that it meant matters which are relevant.
10. The said decision was followed in the Statesman Ltd.v. The Second Industrial Tribunal of West Bengal and Ors., 95 C WN 861, Birla Industrial and Technological Museum v. Seventh Industrial Tribunal and Ors., 92 CWN 1205, in Brooke Bond India Ltd. v. Fifth Industrial Tribunal, 1988 (2) CHN 205 as also a Division Bench judgment of this Court in Vishen Roy v. Bayer (India) Ltd. (1995-I1-LLJ-612) (Cal-DB).
11. Section 15(1) of the Industrial Disputes Act as amended by the State of West Bengal is almost identical with Section 15 of the Principal Act. Neither in the Principal Act nor in the State Act any period has been fixed during which an award is to be submitted. However, in respect of Section 15(2) of the Act, the statute mandates that an order thereunder be passed within a period of sixty days from the date of reference and under Sub-section (1) of Section 10 or within such shorter period as may be specified therein. Such an order, however, on the face of the said provision has to be passed upon hearing the parties. The Tribunal is also required to determine the quantum of interim relief admissible. It would, therefore, not be correct to contend that the word 'admissible' is to be read in the context of the provisions of Indian Evidence Act. The word so read, would make the provisions absurd.
12. The word 'admissible 'inter alia, means in the context of 'if it is admissible' and not in the context of Section 136 of the Indian Evidence Act.
13. It is also relevant to notice that in the said provision the Legislature has purposely used the word 'determine' which means 'authoritatively deciding'. A statutory Tribunal exercising a judicial function, has to determine the dispute between the parties authoritatively inasmuch as, such an order would be final and binding on the parties. A statutory Tribunal exercising a judicial function, it is needless to say, can authoritatively decide only upon considering all relevant materials brought on records by the parties and upon taking into consideration the fact as to whether such relief is admissible either in law or fact. The words 'if any' are also significant. If a power has been conferred upon a Court or statutory Tribunal, the same may be exercised or may not be exercised. Such exercise of power evidently would depend upon the facts and circumstances of each case as also the nature of dispute referred to the Tribunal for adjudication. There cannot, therefore, be any doubt whatsoever that while discharging his functions under Section 15(2)(b) of the Act the hands of Industrial Tribunal are not fettered.
14. It has also to be borne in mind that the very fact that Section 15(2)(b) has been added after Section 15(1) which inter alia, provides for passing of an award also goes to show that the relief granted in favour of the workmen, if any, although interim in nature, is final and binding on the parties.
15. In fact, before us none of the learned counsels had seriously contended that such a power has to be mandatorily exercised irrespective of the fact and circumstances of the case and the Court has no discretion in the matter. We are, therefore, of the opinion that Ganges Printing (supra) and the decisions following the same, have not laid down the law correctly and on hearing overruled'.
16. The view which we have taken, apart from the reasons set out in the judgment of Webel Nicco Electronics Ltd. v. Anima Roy and Ors., (supra) and B.G. Sampat (Babulal Gordhandas Sampat) v. The State of West Bengal and Ors., 1999 (82) FLR 509, also find support from the views of a Division Bench of this Court in Eastern Distillers and Chemicals Ltd. v. State of West Bengal and Ors., 1998 (2) Current Labour Report, page 1239, wherein the law has been stated in the following terms :
'As regards the third contention raised by Mr. Ghosh, learned Counsel, in terms of Clause (b) of Sub-section (2) of Section 15 as has been amended by the State of West Bengal, the Tribunal shall determine within a period of sixty days from the date of order referring such industrial dispute or within such shorter period as may be specified in such order the quantum of interim relief admissible, if any. Terminologies used in the aforesaid provisions clearly go to show that the Tribunal does not have any absolute power to grant any interim relief only because it is so grayed for. The Tribunal, as noticed hereinbefore, must take into consideration the relevant facts before an interim relief is directed to be granted. Such relevant fact would include the question of stateness of the dispute raised by the concerned workman. It is a trite law that an interim relief can be granted only in a case where Tribunal prima facie arrives at a conclusion that the concerned workman would be entitled to the reliefs when a final award is passed. If no such conclusion is possible to arrive at, it goes without saying that the Tribunal may decline to exercise its discretion in terms of Section 15(2)(b) aforementioned.'
17. There cannot, therefore, be any doubt that once an interim relief is prayed for, the tribunal has to apply its mind as regard existence prima facie case. What would be the nature of the prima facie case in such a situation is one of the questions which also arises for our consideration.
18. It has been submitted by the learned counsel appearing on behalf of the workmen that as the appropriate Government itself considers the dispute before making an order of reference, the same itself would constitute a prima facie case. We cannot accept such a submission. The appropriate Government while making an order of reference, exercises an administrative power. It is concerned as regard existence of a dispute or an apprehended dispute. It cannot enter into the merit of the matter. A reference is made only for an adjudication on the merit of the matter. (See : Eastern Distillers) (supra). Thus, reference by the appropriate Government itself cannot constitute a prima facie case in favour of the workman. It is thus, obligatory on the part of the Tribunal prima facie to consider the merit of the cases of the respective parties as also the nature of dispute upon taking into consideration the relevant materials therefor. The question as to whether in a fact situation a workman is entitled to any interim relief or not will also be a relevant consideration.
19. In Martin Burn Ltd. v. R.N. Banerjee, (1958-I-LLJ-247) (SC) it has been held :--
'The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is possible view on the evidence on the record. (See Buckingham and Carnatic Co. Ltd. v. The Workers of the Company, (1953-I-LLJ-181)(SC).
20. In the Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M. T., : (1960)IILLJ39SC , the Apex Court observed :
'The settled position in law therefore is that permission should be refused if the Tribunal is satisfied that the Management's action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis on which the Management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman's misconduct that the Management has not acted bonafide. A finding that the Management has acted bonafide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the Management has reached. In every case therefore it would be proper for the Tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the Management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.'
21. In the General Electric Company of India Ltd. v. The Fifth Industrial Tribunal, West Bengal and Ors., 1990 (60) FLR 874 (Cal) it is stated :
'The expression 'prima facie' means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that the evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to the contrary is disregarded. (THE BLACK'S LAW DICTIONARY, 5th Ed.).
In the premises, we are of the view that the authority under Section 33(2)(b), whether it is Tribunal or Labour Court or Conciliation Officer, in according or withholding permission or approval is only empowered to examine if a prima facie case has been made out by the employer for discharge or dismissal of a workman. In coming to such a prima facie conclusion, the authority may, depending on the facts and circumstances of the case, examine the evidence or take evidence as to the validity of the domestic enquiry, but the scope, nature and extent of enquiry being limited, the determination is not a final adjudication on any issue. Whatever may, therefore, by the finding of such authority in coming to a prima facie conclusion would not be a finding on the merits of the case. Therefore, the findings recorded in a proceeding under Section 33(2)(b) of the Act will not operate as res judicata in a subsequent proceeding under Section 10 of the Act, whether such finding related to the fairness and propriety of the domestic enquiry or the misconduct of the workman. Res judicata may not also apply as there may not be identity of parties in the two proceedings.'
22. The next question which has to be considered is as to whether the Court can direct the parties to refund the amount granted under Section 15(2)(b) of the Act.
23. Mr. Ghosh, the learned counsel appearing on behalf of Webel Nicco Electronics Ltd. relying on or on the basis of the decision in the Management of the Bihar State Electricity Board v. The Workman of the Bihar State Electricity Board and Ors., (supra) submitted that conditions can be imposed while granting interim relief. In those cases, the Courts were concerned with grant of interim order in exercise of its power under Section 10(4) of the Act. However Section 15(2)(b) speaks of an interim relief. It may not be an interim award which requires acceptance by the appropriate Government and publication thereof in the Gazette in terms of Section 17 of the said Act. But the very fact that the words 'interim relief had been used is a pointer to the fact that the same has not been done in the same terms as that of an interlocutory order', Relief has to be granted by way of interim measure. Such a relief when granted becomes final and, thus, the question of any refund thereof does not arise.
24. The proviso appended to Section 15(2)(b) must in this context be taken into, consideration.
25. In S. Sundaram Pillai v. V.R.Pattabiraman, : [1985]2SCR643 , it has beenheld that proviso may serve four differentpurposes namely :--
'To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main enactment:
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.'
26. It is now a well settled principle of law that while interpreting a provision of statute, the same has to be read in its entirety and not in isolation.
27. A reference can be made in respect of various disputes. The dispute may be in relation to a scale of pay or Dearness Allowance. As regard demand of enhanced D.A. and/or for an enhanced scale of pay even the appropriate Government grants interim relief. Such interim reliefs granted are not refundable.
28. The intention of the Legislature is further clear from the fact that in terms of the proviso appended to Section 15(2)(b) interim relief in certain categories of cases would be equivalent to the subsistence allowance as may be admissible under the West Bengal Payment of Subsistence Allowance Act, 1969. The provisions of the said Act have been incorporated by reference with regard to the quantum of allowance only but the said provision leads to a conclusion that in a case where an interim relief is granted, no direction can be issued to refund thereof as subsistence allowance can never be directed to be refunded. The reason why a subsistence allowance is granted has succinctly been stated by the Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999-I-LLJ-1094) (SC) in the following terms at P-1102 :
'The provision for payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chandrabhan Tale, (1983-II-LLJ-256) (SC) struck down a service rule which provided for payment of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer (1986-II-LLJ-124) (SC), and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Das Shrivastava v. State of M.P. (1973-I-LLJ-414).'
29. The provisions of the West Bengal Payment of Subsistence Allowance Act, 1969, inter alia, prohibits such grant of subsistence allowance in the event the workman was gainfully employed. For the purpose of computation of the quantum of interim relief even the said factor will be relevant.
30. It therefore, cannot be said as was sought to be argued by the learned counsel appearing on behalf of the workmen that the proviso to Section 15(2)(b) is a substantial provision and has to be read independent of the main provision.
31. In this context, the provision of Section 17-B of the Act must also be taken note of. Both Sections 15(2)(b) and 17-B are beneficent in nature. Such a provisions must, therefore, be construed liberally.
32. In Dena Bank v. Kirtikumar T. Patel, (1998-I-LLJ-1) the Apex Court held:
'The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character, Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore, used the words 'full wages last drawn.' To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his service had not been passed since it has been set aside by the award of the Labour Court or the Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside, it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17-B to cast such a burden on the employer. In our opinion, therefore, the words 'full wages last drawn' must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron and Steel Ltd., (1994-I-LLJ-555) (Kant-DB), or the Bombay High Court in Carona Sahu Co. Ltd. (1997-II-LLJ-1233)(Bom).
33. Request for subsistence allowance during pendency of a departmental proceeding is also made with a view to achieve the said purpose. However, there cannot be any doubt that while passing a final award under Section 15 of the Act, the Court may direct adjustment as an interim relief is in aid of the final relief which may be granted by the Court.
34. A question has also been raised whether an interim relief can be granted despite the fact that no written statement has been filed. Keeping in view the fact that an order in terms of Section 15(2)(b) has to be passed within a period of 60 days from the date of reference itself is a pointer to the fact that it is not obligatory on the part of the parties to file written statement but the Court must have before it all the material facts either from the pleadings or from the records. If an employer does not purposely choose to file his pleadings, the workman cannot suffer therefor as the Tribunal is required to pass such an order within 60 days from the date of reference and within such shorter period, if any, mentioned in the reference.
35. Another question which has been raised is as to from which date such interim relief can be granted. Having regard to the fact that sometimes references are made after several years, in view of the principles of law laid down by the Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (supra), We are of the opinion that such an order has to be passed from the date of reference and not prior thereto.
36. The submission of Mr. Pal, to the effect that Section 15(2)(b) of the Act is unconstitutional cannot be accepted. Termination of service has a definite connotation which includes discharge, dismissal or retrenchment. See :-- State Bank of India v. N. Sundara Money, (1976-I-LLJ-478) (SC).
37. Those persons who are in one category, viz., where there has been cessation of relationship of employer and employee, they may form one class under a statute. Such a classification can neither be said to be arbitrary nor fanciful.
38. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., (supra) the Apex Court declared the provision impugned therein as ultra vires as the same was found to be hit by Article 14 of the Constitution of India as also Section 23 of the Indian Contract Act as the agreement was found to be between the persons who were not equally situated as a result whereof an absolute unguided and unfettered power had been conferred upon the employer. Such is not the position here.
39. The references made to this Court are answered accordingly.
Keeping in view the nature of references, we have not entered into the merit of the matter. The matters may now be placed before the appropriate Bench having determination therefor and the same be disposed of on merit.
In the facts and circumstances of this case, there will be no order as to costs.