Skip to content


B.N. Elias and Co. Private Ltd. Vs. Fifth Industrial Tribunal of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberMatter No. 27 of 1960
Judge
Reported inAIR1961Cal185,[1961(2)FLR339],(1961)IILLJ14Cal
ActsIndustrial Disputes Act, 1947 - Section 11(3)
AppellantB.N. Elias and Co. Private Ltd.
RespondentFifth Industrial Tribunal of West Bengal and ors.
Advocates:P.P. Ginwalla, Adv.;S.A. Masud, Adv.;M.M. Saha, Adv.
Excerpt:
- .....were entitled. in the written statement filed by the company, it was inter alia stated that the company's business consisted mostly of selling various types of imported goods in respect of which, in the past, it used to receive import licences. a further element in its business consisted of selling venetian blinds which was made up from imported materials. it was stated that by reason of drastic curtailment of the number and/or value of import licences granted by the government of india to the company since 1958 the business of the company, since that year, has greatly diminished. to show the extent of the diminution, a statement has been annexed to the written statement of import licences received by the company between 'the period january-june 1956 to april-september 1958. the.....
Judgment:
ORDER

D.N. Sinha, J.

1. The facts in this case are as follows: The petitioner company acts as the Managing Agent of various companies, including the Oriental Electric and Engineering Company (hereinafter referred to as the 'company'). It is stated in the petition that the business of the company at all material times consisted mostly of selling various types of imported goods, in respect of which, in the past, the petitioner used to receive import licences. It is also stated that the company had a large business in selling Venetian blinds which are made up from imported materials. It is further stated that in a small way the company also trades in locally purchased stock or articles locally manufactured. It is claimed that by reason of drastic curtailment of the number and/or value of import licences granted by the Government since 1956, as well as other factors, the business has, since that year, greatly diminished. As a result of such diminution in business it is claimed that a large number of employees in the said business became surplus to its requirements and consequently in June 1958, 16 such employees were retrenched after payment of one month's salary in lieu of notice and retrenchment compensation under Section 25-F of the Industrial Disputes Act, 1947. Thereupon, the Government of West Bengal made an order of refer-ence under Section 10 or the Industrial Disputes Act, referring a dispute between Messrs. Oriental Electric and Engineering Company and their workmen represented by B. N. Elias and Co. Ltd. Employees' Union, to the Fifth Industrial Tribunal. The issue that was referred was whether the retrenchment of 16 workmen mentioned therein was justified and to what relief they were entitled. In the written statement filed by the company, it was inter alia stated that the company's business consisted mostly of selling various types of imported goods in respect of which, in the past, it used to receive import licences. A further element in its business consisted of selling venetian blinds which was made up from imported materials. It was stated that by reason of drastic curtailment of the number and/or value of import licences granted by the Government of India to the company since 1958 the business of the company, since that year, has greatly diminished. To show the extent of the diminution, a statement has been annexed to the written statement of import licences received by the company between 'the period January-June 1956 to April-September 1958. The statement shows that while during January-June 1956 the total value came up to Rs 3,17,239 the total value in April-September 1958 came up only to Rs. 37,391/-. The written statement proceeds to state that as a result of such diminution in business, a large number of employees of the company became surplus to its requirement, both at its head office and at its godown, and con-sequently, in June 1958 the company retrenched 16 such employees, being one Satyanarayan Khettry and the respondents Nos. 4, 5, 6 and 8 to 19 in this application. The workmen, through their Union, filed a written statement and have denied all these state-ments. It has been stated therein that the company is in a highly prosperous condition. It is stated that the business of the company consists of both imported goods and local products and their own manufactured products. Indeed, it has been stated that imported goods form only a fraction of the total volume of the goods in which the company deals. It is stated that the products manufactured by the company, including Venetian blinds, in which they had a huge business, as also the local trade, were quite sufficient to keep the business of the company running in full swing and that the company was not affected by any import restrictions. It is even stated that import restriction has helped the business of the company giving an incentive to Indian manufactured products. The next point taken in the petition is that the company's record will show that in the place of the retrenched workmen, the company has employed others, thereby implying that there was no necassity whatsoever to effect such retrenchment. Actually, a list has been annexed to the written statement, showing the staff who are now doing the work of the retrenched workmen, some of whom are much junior to the retrenched staff.

2. On or about 26th October, 1959 the second respondent, on behalf of the workmen, made an application for inspection of various documents alleged to be in the petitioner's possession or power. The petitioner objected that no inspection could be claimed until an application had been made for filing an affidavit of documents by the petitioner, and such an order was then made and the affidavit has been filed. On or about 10th December, 1959 an affidavit of documents was filed, a copy whereof is annexed to the petition and marked with the letter 'D'. In the affidavit of documents, it is stated that the company had in its possession or power the documents set forth in the first and second parts of the first schedule. The company objected to produce the documents set forth in the second part of the first schedule, on the ground that in so far as they do relate to the matters in issue in this adjudication, they relate solely to the company's case and not to the workmen's case, and they form part of the evidence in support of the company's case and do not support or tend to support the workmen's case and contain nothing impeaching the company's case. So far as the first schedule is concerned, it consists of letters, receipts and copies of a charge-sheet addressed to U. C. Bannerji. Part II of the first schedule consists of the following documents :

'1. License Register No. 3 from January 1955 onwards.

2. Store Indent Register Book No. 8.

3. Bill copy Books April to June 1958 and July to September 1958.

4. Sales Day Books Nos. 2 and 3 for 1957-58 and 1958-59.

5. Bundle of relevant stock cards.

6. Godown Attendance Register.

7. Pay Book.

8. Statements prepared by U. C. Banerjee.'

3. On or about 18th December, 1959 the second respondent on behalf of the workmen made an application for inspection of the documents set forth in the second part of the first schedule set out above. The company opposed the application. On the 19th January, 1960 the first respondent made an order directing the petitioner to give inspection to the second respondent of the said documents. A copy of the order dated 19th January, 1960 is annexed to the petition and marked with the letter 'F'. It is this order that has been challenged in this application. In this application a prayer has been made asking the first respondent to forbear from, entertaining the pretended Order. 1 have, however, not heard any arguments in that behalf. The arguments have been directed towards the other reliefs claimed, namely not to give effect to the order dated 19th January 1960 or enforcing the same. It is argued that as a matter of law the first respondent is not entitled at this stage to order inspection of documents which have, been claimed by the company in its affidavit of documents, as documents which relate solely to the company's case and which do not support or tend to support the workmen's case. It is said that at this stage this statement in the affidavit is conclusive. The law on the subject has thus been summarised by Mulla in his comments in the Code of Civil Procedure 12th Edn. page 672:

'A party is not bound to produce for the inspection of his opponent, documents which 'of themselves evidence exclusively' the party's own case of title. Documents constituting evidence of the party's case or title are not protected unless they are solely or exclusively evidence of it. Where a document is or may be evidence for the adversary as well as the party, the party cannot withhold inspection of it from the adversary, although his own evidence may be thus disclosed. It is not enough for a man to say such and such documents are the title deeds of his property; it is no ground for refusing their production, if they are necessary to support the adversary's case ..... Assertions of a party on oath that documents required to be produced relate only to his own title cannot be disregarded, if the Court is satisfied that they are true and that the party asserting has not misconceived the nature and effect of those documents.'

4. Mr. Mulla has referred to Brav on Discovery, in which at page 478-479 we find the law Summarised as follows :

'Documents constituting the evidence of the party's case or title are not protected unless they are solely or exclusively the evidence of it. Where a document is or may be the evidence for or may assist the adversary as well as himself he cannot withhold it .....'

Then the learned author goes on to discuss the question as to how the court is to be satisfied that the document is of the character claimed. He comes to the conclusion that if it is said with distinctness and positiveness that the documents do not contain anything to support the other side, it would be protected from production

'unless the court sees upon the answer itsett that the defendant erroneously represents or misconceives its nature. But where it is consistent with the answer that the documents may form the plaintiff's title or part of it, may contain matter supporting the plaintiff's title, or the plaintiff's case, or may contain matter impeaching the defence, then, I apprehend that the document is not protected'.

5. It remains for me now to apply these principles to the facts of this case. I have mentioned above the issue that was referred for adjudication and also the respective cases made by the parties before the Tribunal. It is obvious that one of the issues to be determined would be as to whether the company's business had diminished to such an extent that it became necessary to retrench 16 employees. The second issue raised is as to whether the company had in fact appointed other staff in the place of those retrenched. If it had done so, it would go to show that the retrenchment was not necessary, but was a mere attempt to get rid of certain workmen. Coming now to the affidavit of documents' that has been filed, we find that in part I of the first schedule, only some letters and receipts were disclosed. These documents can be of no assistance in respect of either of the issues, or at least do not appear to be so. All the books and registers are disclosed in part II, for which the company claims a privilege. The Tribunal has held that in doing so the company has misconceived the nature and effect of the disclosed documents, in asserting in its affidavit that they relate solely to its own case and not to the workmen's case. The Tribunal has pointed out that upon the issue as to the question of the shrinkage of the company's business, the best evidence would be the company's own account books, and some of the other books and documents disclosed in Part II. It has also been remarked that the Union, that is to say, the workmen, could not possibly be expected to have any documents in their possession to prove such issues. In many cases decided by this Court, and other courts, it has been held that when the workmen assert that a certain set of circumstances exist, namely that the company is in a prosperous condition or able to make certain payments to the workmen etc., it is a matter that must be based on evidence, and the onus would be on the workmen who allege the same, to prove it. In cases where the Tribunal has proceeded without sufficient evidence, the findings have been set aside. I myself have pointed out that the Tribunal has the power to call for such evidence, and order produc-tion and inspection. If it fails to do so, and bases its findings on insufficient evidence, such findings cannot be sustained. In this case, if the workmen have to discharge the onus of proof and establish that the company was in a prosperous condition, and its business did not shrink, the only way of doing so would be to rely on the books and documents of the company that may be fairly said to be relevant for that purpose. One of the points specifically taken by the company is that the shrinkage of its business has been largely due to the diminution in the issue of licences for foreign imports. In order to check this statement, the licence register is essential. The company itself has given a statement of its import licences during various periods. How can the workmen deal with it without looking at the licence Register? Mr. Ginwalla appearing on behalf of the petitioner states that his client is prepared to produce the documents at the hearing, for the perusal of the court, but he is disputing the right of the workmen to inspect the same prior to the hearing. In my opinion, such a course will not solve the problem for the workmen. Unless they are apprised of the contents of the books prior to the trial, it would not be possible for them to prepare for it Therefore, production in court would be of no assis-tance. Coming now to the issue of the shrinkage of business, it is inevitable that the store book or the bill copy book or the sales day book or the stock cards, should be inspected. Without looking into the books which will show credit and debits of the firm, in other words, the intake and the outgoings, it would scarcely be possible for the workmen to prove the state of accounts of the firm and to prove that the business was prospering and not dwindling. It is significant that no audited balance-sheet or profit or loss account has been disclosed. I am not going into the question as to whether the disclosure of these documents would have been sufficient to preclude the inspection of the books. All I am pointing out is this, that in the facts and circumstances of this case, inspection of the books has become inevitable. In this connection, one must of course bear in mind the mischief that might ensue by ordering a roving inspection of the books of the company. Normally, such a roving inspection must be avoided. If it bad been a case of giving inspection to a rival business concern, a great deal of strictness would have to be observed. Here, however, the dispute is between the company and its workmen. The issue that has arisen is as to the state of the com-pany's business. In order to determine that, re-course to the books and documents of the company has become inevitable. It is true that in proceedings under the Industrial Disputes Act the principles regarding discovery and inspection as observed in Ordinary judicial trials should be observed, but in such proceedings, too many technical rules ought not to be imported, especially when such rules tend to defeat the purpose for which the Industrial Dis-putes Act was promulgated. The respective posi-tions of the parties to the dispute must not be for-gotten. The workmen, in the normal course of events, have no access to the books of the firm. Only those who are intimately related to the department which keeps the accounts may be said to he familiar with it. Thus, when it comes to trial of a dispute, the workmen are in a difficult position. The Tribunal rightly observed that such workmen are not expected to possess books and documents, which re-main in the possession of the company, that is to say, the employer. Under such circumstances, if inspection is ruled out, then no workman can prove this case. I have already remarked that the mischief of roving inspection should always be in the mind of the court. In this case, I find that the books disclosed are from January 1955 onwards. So far as the licence registers are concerned, they are either from 1957-58 or 1958-59. So far as licence register is concerned the case of the company is that there has been a diminution in the issue of import licences from 1956. Consequently, the licence registers from January 1955 would be necessary for the purpose of a comparison and the checking of the statement filed by the company. So far as stock cards are Concerned, no date is given, but I take it that it relates to the same period. Corning now to items 6 and 7, namely godown attendance register and pay book, here again, inspection is inevitable because of the nature of the issues raised. According to the workmen, the company has actually engaged others in place of those retrenched. For that purpose, the attendance register and pay books are necessary, and although no dates are given, I take it that, the books disclosed, which are to be inspected, are for the relevant period, that is to say, 1958. So far as-the last document is concerned namely a statement prepared by U. C. Banerji, no foundation has been laid anywhere for showing that the statement can support the case of the workmen, and in my opinion that should have been left out.

6. For the reasons aforesaid, I am of the opinion.that except as to item 8, the order of the Tribunal'should be upheld. This Rule is, therefore, madeabsoulte only in part and that part of the Tribunal'sorder which relates to item No. 8, namely statementprepared by U. C. Bannerji is quashed, but otherwise.the rest of the order is upheld and the rule is dis-charged. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //