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East Asiatic Co. (India) Private Ltd. Vs. Fourth Industrial Tribunal, West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 212 of 1958 (Matter No. 116 of 1958)
Judge
Reported inAIR1961Cal160,[1961(2)FLR334],(1961)ILLJ720Cal
ActsIndustrial Disputes Act, (1947) - Section 2; ;Constitution of India - Article 226
AppellantEast Asiatic Co. (India) Private Ltd.
RespondentFourth Industrial Tribunal, West Bengal and ors.
Appellant AdvocateS.C. Chowdhury and ;P.P. Ginwalla, Advs.
Respondent AdvocateS.K. Acharya and ;Manash Roy, Advs. for Respondent No. 2 and ;S.A. Masud, Adv. for Respondent No. 4
DispositionAppeal dismissed
Cases ReferredKayas Constructions Co. (Private) Ltd. v. Its Workmen
Excerpt:
- .....it necessary to retrench 79 employees on account of bad financial condition; but at that time an industrial dispute between the appellant company and its workmen was pending before the first industrial tribunal of west bengal and therefore it was necessary for the appellant company to take the permission of the industrial tribunal before it could direct retrenchment. an application was accordingly filed before the first industrial tribunal by the appellant for permission to retrench. 79 employees. the permission was granted by the first industrial tribunal to the appellant company to retrench 71 instead of 79 employees by an order dated 4-4-1956. these 71 employees included one k. k. bhowmick, who was the secretary of the employees' union of the appellant company. in the course of the.....
Judgment:

Lahiri, C.J.

1. This appeal relates to a claim for bonus made by seventy retrenched employees and one dismissed employee of the appellant company, which is the employer. Sometime in the year 1955, the appel-lant company found it necessary to retrench 79 employees on account of bad financial condition; but at that time an industrial dispute between the appellant company and its workmen was pending before the First Industrial Tribunal of West Bengal and therefore it was necessary for the appellant company to take the permission of the Industrial Tribunal before it could direct retrenchment. An application was accordingly filed before the First Industrial Tribunal by the appellant for permission to retrench. 79 employees. The permission was granted by the First Industrial Tribunal to the appellant company to retrench 71 instead of 79 employees by an order dated 4-4-1956. These 71 employees included one K. K. Bhowmick, who was the Secretary of the Employees' Union of the appellant company. In the course of the proceeding pending before the First Industrial Tribunal, K. K. Bhowmick filed a written statement making certain scandalous and defamatory allegations against the appellant company. The appellant company thereupon issued a charge sheet against K. K. Bhowmick with the permission of the First Industrial Tribunal with a view to take disciplinary action against K. K. Bhowmick. Since however the said K. K. Bhowmick failed to furnish any satisfactory explanation of the defamatory allegations made by him, the appellant company decided on 16-9-1955 to dismiss him and applied to the First Industrial Tribunal for permission to dismiss K. K. Bhowmick. Before the application for permission to dismiss K. K. Bhowmick was disposed of by the First Industrial Tribunal, the proceeding pending before it came to an end, and the First Industrial Tribunal made an award, which was published in the Calcutta Gazette on 21-6-1956. The appellant company thereafter dismissed the said K. K. Bhow-mick by an order dated 26-11-1956. By a notice dated 21-11-1956, the company declared bonus at certain rates to be granted to its permanent staff. The 70 employees who had been retrenched by the order dated 4-4-1956 and K. K. Bhowmick who had been dismissed by the order dated 26-11-1956 made a claim for the bonus declared by the company on the 21st of November, 1956. K. K. Bhowmick further challenged the legality and validity of his dis-missal. Upon the appellant company's refusal to accept these claims, they were taken up by the Employee's Union of the appellant company. By an order dated ,2-7-1957 the Government of West Bengal referred the disputes to the Fourth Industrial Tribunal and the issues that were referred for adjudication were:

1. 'Whether the Company was justified in not paying the extra bonus to the seventyone retrenched employees? To what relief are these employees entitled?

2. Whether the dismissal of Sri K. K. Bhowmick was justified? To what relief is he entitled?'

2. Before the Tribunal the appellant company filed a written statement challenging the validity of die order of reference and the jurisdiction of the Tribunal to adjudicate on the issues upon a preliminary ground that there was no industrial dispute between the appellant company and its Employees' Union. The appellant company further disputed the claims for bonus made on behalf of the retrenched and dismissed employees. By an award published in the Calcutta Gazette on 3-4-1958 the Tribunal overruled the preliminary objection about the want of jurisdiction of the Tribunal and answered the first issue in favour of the Employees' Union of the appellant company and the second issue relating to the dismissal of K. K, Bhowmick in favour of the appellant company. Against the aforesaid award the appellant company filed an application under Article 226 of the Constitution of India for issue of appropriate writs for quashing the aforesaid award and for prohibiting the respondents and each of them from enforcing the award and for commanding the respondents to forbear from enforcing or giving any effect to the award. By a judgment dated the 22nd August 1958, Mr. Justice Sinha discharged the Rule with a slight modification about company's contribution in respect of the provident fund of K. K. Bhowmick. Against that order the employer company has brought this appeal.

3. Mr. Chowdhury appearing in support of the appeal has argued three points before us. The first point is that Mr. Justice Sinha erred in law in holding that the Tribunal had jurisdiction to try the issues referred to it. The second point is that on a true construction of the notice issued by the company on 21-11-1956, it should be held that the 70 retrenched employees and the dismissed employee (K. K. Bhowmick) are not entitled to claim any benefit under it. The third point is that the claim made by K. K. Bhowmick in respect of the bonus is not covered by the issues referred to the Tribunal for adjudication.

4. The first point as to the absence of jurisdiction of the Tribunal turns on the answer to the question whether the dispute in the present case is an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act. If the dispute is an industrial dispute the order of reference made by the Government of the State of West Bengal by its order dated 2-7-1957 is valid and the Tribunal has jurisdiction to adjudicate 011 the issues referred to it, but if the dispute is not an industrial dispute the order of reference is invalid and the Tribunal has no jurisdiction. Mr. Chowdhury's argument is that since the retrenched employees and the dismissed employee (K. K. Bhowmick) are not workmen within the meaning of Section 2(s) of the Act, any dispute relating to their claim cannot be an industrial dispute within the meaning of Section 2(k). It is pointed out that though the definition of workman, as given in Section 2(s) has been widened by the amendment of 1956 by including within its scope any person who has been dismissed, discharged or retrenched in connection with or as a consequence of an industrial dispute or whose dismissal, discharge or retrenchment has led to that dispute, the retrenched workmen and the dismissed workman do not fall within that extended definition. It is true that the retrenched employees in the present case were not retrenched in connection with or in consequence of any industrial dispute and it is also true that their retrenchment has not led to that dispute and therefore they are not workmen within the meaning of Section 2(s). So far as K. K. Bhowmick is concerned, it is, however, clear that his dismissal has led to the dispute and one of the points referred to the Tribunal for adjudication is whether his dismissal is justified. K. K. Bhowmick therefore can claim to be a workman under Section 2(s) of the Act as amended in 1956. The position of the retrenched employees stands on a different footing from the position of the dismissed employee. The former cannot claim to be workmen within the meaning of Section 2(s) but the latter can. It is to be noted, however, that the retrenched employees were workmen within the definition as given by Section 2(s) before the order of retrenchment and they ceased to be workmen as a consequence of the order of retrenchment. The question for consideration, therefore, is whether industrial dispute as defined in Section 2(k) includes within its scope a dispute between employers and workmen, which is connected with the conditions of labour of a class of persons who were workmen before the order of retrenchment but who ceased to be workmen as a consequence of the order of retrenchment. On a plain reading of Section 2(k) in order to be an industrial dispute it must be raised by the existing workmen and must relate to the employment, non-employment or terms of employment or conditions of labour 'of any person'. The language of the definition is therefore very wide. The true meaning of the words 'of any person' has led to a considerable divergence of judicial opinion. Fortunately for us three recent decisions of the Supreme Court have settled the true meaning of the words 'of any person'. In the case of Workmen of Dima Kuchi Tea Estate v. Management of Dima Kuchi Tea Estate, : (1958)ILLJ500SC , the majority judgment delivered by Mr. Justice S. K. Das after an exhaustive review of all the conflicting authorities and all the relevant provisions of Industrial Disputes Act has laid down that the words 'of any person' are not to be understood in their grammatical or etymological meaning and must be read Subject to two conditions:

(a) The dispute must be a real dispute so as to be capable of adjudication by one party to the dispute giving necessary relief to the other.

(b) The workmen raising the dispute must have a 'direct or substantial interest' in the dispute. Mr. Chowdhury has contended before us that the employees' Union,' of the appellant company, which has raised the dispute in the present case has no direct or substantial interest in the claim for bonus made on behalf of the retrenched employees and he has also contended that since the award made in the case will not be binding upon the retrenched employees under Section 18 of the Act, the dispute is incapable of adjudication by one party to the dispute giving necessary relief to the other. He has therefore contended that the two conditions laid down in the above case are not fulfilled in the case before us. As I read the majority judgment of the Supreme Court in the above case it lays down the following propositions:

1. The substantial interest which entitles the existing workmen to raise the dispute need not be pecuniary interest alone. Solidarity of labour and general interest of labour welfare may furnish the necessity nexus.

2. Persons on whose behalf the dispute is raised need not he actual workmen within the meaning of the Act. It is enough it' they could come within the category of workmen but for their dismissal, discharge or retrenchment.

3. Persons on whose behalf the dispute is raised must belong to the same establishment.

4. If however the dispute is raised with regard to a person who could not possibly come under the definition of workman as given in Section 2(s) even without the order of discharge, dismissal or retrenchment, the dispute is not an industrial dispute.

In the case before us the workmen who have raised the dispute can be said to have a community of interest with the retrenched workmen in the general interest of labour welfare because they put forward a claim that under circumstances similar to those of the present case they are entitled to claim bonus. In this sense the workmen raising the dispute have a nexus with the dispute because they have taken up the case of retrenched workmen in the general interest of labour welfare. I cannot, therefore, accept Mr. Chowdhury's argument that there is no community of interest between the workmen, who have raised the dispute and the retrenched workmen, whose claim for bonus has been rejected by the appellant company. The second branch of Mr. Chowdhury's argument that in order to be an industrial dispute the award must be binding upon the parties under Section 18 of the Act can be disposed of on the ground that it raises a mixed question of law and fact, which cannot be raised for the first time in appeal. Under Section 18(3) an award shall be bind-ing on (a) all parties to the industrial dispute (b) all other parties summoned to appear in the proceeding as parties to the dispute. The appellant did not over in its petition under Article 226 that the 70 retrenched workmen were not summoned to appear in the proceeding as parties to the dispute. We do not know whether they were or were not so summoned and I am not prepared to allow the appellant to argue the case on the assumption that they were not so summoned. In this view of the matter, I express no opinion on the question of law whether in order to be an industrial dispute it is necessary that the award should be binding on the parties.

5. For the reasons given above I have come to the conclusion that the dispute in the present case is an industrial dispute even under the restricted meaning given to that expression by the majority judgment of the Supreme Court in the case of Dima Kuchi Tea Estate, : (1958)ILLJ500SC .

6. The decision of the Supreme Court in the case of Dima Kuchi Tea Estate, AIR 1958 SC 355 was explained by the same Court in the case of Workmen of Dahingeapara Tea Estate v. Dahingea-para Tea Estate, : (1958)IILLJ498SC in the following terms:

'That decision lays down that where the workmen raise a dispute as against their employer, the person or persons regarding whose employment or non-employment the dispute is raised need not be strictly speaking workmen within the meaning of the Act, but must be persons in whose employment or non-employment the workmen as a class have a direct or substantial interest'.

The principles laid down by the Supreme Court in the aforesaid two decisions were again followed by that Court in the case of Kayas Constructions Co. (Private) Ltd. v. Its Workmen, AIR 1959 SC 208. According to the principles enunciated by the Supreme Court in the aforesaid cases, I have no doubt that the dispute between the appellant company and its employees' Union is an industrial dispute within the meaning of Section 2(k) of the Act.

7. Mr. Chowdhury also argued that Section 25F to Section 25H of the Industrial Disputes Act governed the rights of retrenched workman and those sections constitute a complete code by themselves and a retrenched workman has no right outside those sections. This point does not appear to have been raised be-fore the Tribunal and is not therefore an error apparent on the face of the award. The relief which the workmen are claiming in the present case is not a relief under the Act, but a relief under the declaration made by the company on 21-11-1956. Under that declaration the interest of the existing workmen is identical with the interest of the retrenched workmen because both the existing and the retrenched workmen claim the bonus declared by that notice. There is therefore a community of interest between the existing and the retrenched workmen in respect of their claim for bonus declared by the notice. On the question of existence of nexus between the existing workmen and the retrenched workmen the Tribunal in its award has made the following observations:

'It is idle to contend that the existing staff has got no substantial interest or community of interest between them and the retrenched workmen'.

For all these reasons given above, the first point raised by Mr. Chowdhury in support of the appeal fails.

8. The second point urged in support of the appeal raised a question of construction of the notice issued by the appellant company on the 21st November, 1956. It is contended that under that notice only the members of the permanent staff of the appellant company on 21-11-1956 are entitled to the bonus declared on that date and since 70 workmen were retrenched long before that date, they are not entitled to any benefit under that notice. It is to be noticed that though the bonus was declared after retrenchment, it relates to a period before the re-trenchment The declaration bears the heading 'Notice to the Staff and it goes on to state that

'by a notice dated the 16th July, 1955 and 11th November, 1955 the company allowed the permanent staff an advance payment towards anticipated bonus for 1956? (1953) ..... The management are now pleased to announce however that a further payment of bonus for the year 1955 will be granted to our permanent staff so that a total bonus for the year will be as follows .....'

Although the notice, as printed in the paper book, describes tho bonus declared on the 16th July and 11th November, 1955 as the anticipated bonus for 1956, I have no doubt that the figure 1956 is either a mistake or a misprint for 1955, because In paragraph 5 of the petition the appellant company describes the bonus declared on the 16th July, 1955 as well as on the 11th November, 1955 as a bonus for 1955. I, therefore, proceed to consider the second point urged in support of the appeal on the assumption that the bonus declared on the 21st November, 1956 relates to the year 1955. The appellant's argument is that the declaration made on the 21st of November, 1956 is for the benefit of the permanent staff of the company as on that date. I am, however, unable to accept this argument. It has been found both by the Tribunal and by Mr. Justice Sinha that the bonus claimed in the present case is not an ex gratia bonus, but a bonus based on the overall trading result of the appellant company and is founded on the principle of joint co-operation between labour and capital in earning the profit. This finding has not been challenged before us. There is, therefore, no doubt that the retrenched workmen and the dismissed workman actually worked and contributed to the earning of the profits on the basis of which the bonus was declared. Unless therefore the language of the declaration dated the 21st November, 1956 precludes them from claiming the bonus, they will be entitled to it under the law. It is true that neither the retrenched workmen nor the dismissed workman were members of the permanent staff in 1956, but it is also true that they belonged to the permanent staff in 1955 for which year the bonus was declared. The word 'further' occurring in the second paragraph of the declaration, in my opinion, furnishes the key to the interpretation of the declaration and it means further to the declarations made oh the 16th July, 1955 and 11th November, 1955. The bonus declared by the notification dated the 21st November, 1956 is therefore a continuation of the two previous declarations made on the 16th July, 1955 and 11th November, 1955, and it relates to the year 1955. There is, therefore, nothing in the language of the declaration dated the 21st of November, 1956 to preclude the retrenched and dismissed workmen from claiming the benefit of that declaration. The second point urged in support of the appeal must therefore be overruled.

9. The third point raised on behalf of the appellant relates to the claim for bonus made on behalf of the dismissed workman K. K. Bhowmick. It is contended that the dispute with regard to his claim for bonus is not covered by the two issues which were referred to the Tribunal for adjudication. Before dealing with the merits of this contention I must point out that this ground of attack was not put forward by the company either before the Tribunal or in its petition under Article 226. The judgment of Mr. Justice Sinha also shows that it was not raised in the argument before him, and it is raised for the first time in the appeal. True, the question raised is a question of law, but in a proceeding for a writ of certiorari and prohibition, the error of law must appear on the face of the record and must also be made a specific ground of attack in the petition. But even apart from this preliminary difficulty the point raised seems to me to be devoid of merits. It is true that the claim for bonus made on behalf of K. K. Bhowmick does not strictly come within the purview of the first issue, which relates to the claim of extra bonus of 'seventyone retrenched employees' because K. K. Bhowmick being a dismissed employee does not belong to the category of retrenched employees. Issue No. 2 however is wide enough to cover this claim. Mr. Chowdhury argues that the second part of issue No. 2 is consequential to the first part. According to him the second part of issue No. 2 arises for consideration only when the Brat part relating to his dismissal is answered in the negative. It seems to me that the construction suggested by Mr. Chowdhury is untenable. The first part of issue No. 2 is 'whether the dismissal of Sri K. K. Bhowmick was justified?'' The second part is 'to what relief is he entitled?' The true meaning of the second part read with the first part of issue No. 2, in my opinion, is -- whether the dismissal of K. K. Bhowmick was justified or not justified what was the further relief to which he was entitled. I am not prepared to hold that the further relief to which K. K. Bhomwick is entitled arises for consideration only if his dismissal was found to be unjustified. The question of further relief has to be considered under the issue in either case. I accordingly hold that the claim for bonus made by K. K. Bhowmick is covered by the second issue referred to the Tribunal and the Tribunal was competent to adjudicate on that Issue and to make an award in favour of K. K. Bhowmick.

10. No other point was argued by Mr. Chowdhury in this appeal and as all the points urged by him have been found to be without substance, I would order that the appeal be and the same is hereby dismissed. In the circumstances the parties will bear their own costs.

Bachawat, J.

11. I agree.


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