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Dhana Krishna Adhikari and anr. Vs. Sixth Industrial Tribunal, West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1054 of 1957
Judge
Reported inAIR1960Cal225
ActsIndustrial Disputes Act, 1947 - Sections 10 and 12; ;Industrial Law; ;Labour Law; ;Industrial Employments (Standing Orders) Act, 1946 - Section 13A
AppellantDhana Krishna Adhikari and anr.
RespondentSixth Industrial Tribunal, West Bengal and ors.
Appellant AdvocatePhanindra Kumar Sanyal and ;Nikhil Ranjan Roy, Advs.;Somendra Chandra Bose, Adv
Respondent AdvocatePritimoy Dutt, Adv. for Respondent No. 4
DispositionPetition allowed
Cases ReferredIndia Paper Pulp Co. Ltd. v. Its Workers
Excerpt:
- orderp.b. mukharji, j.1. the conclusions of the sixth industrial tribunal on three specific issues are challenged by the petitioners in this case under article 220 of the constitution. the tribunal gave its award on 22-2-1957 on as many as seven different issues referred to it by the government order dated 5-9-1956. no complaint is made in this application on the first four issues as determined by the tribunal.2. the three issues upon which the tribunal's decision is attacked on this application are (1) the pujah bonus; (2) the amendments of the standing orders and (3) whether the workers of the dyeing section are entitled to any relief for the transfer of the dyeing section and it they are entitled to the same terms of employment under the lease holder.3. on the first point of bonus, it.....
Judgment:
ORDER

P.B. Mukharji, J.

1. The conclusions of the Sixth Industrial Tribunal on three specific issues are challenged by the petitioners in this case under Article 220 of the Constitution. The Tribunal gave its award on 22-2-1957 on as many as seven different issues referred to it by the Government order dated 5-9-1956. No complaint is made in this application on the first four issues as determined by the Tribunal.

2. The three issues upon which the Tribunal's decision is attacked on this application are (1) the Pujah Bonus; (2) the amendments of the Standing Orders and (3) whether the workers of the dyeing section are entitled to any relief for the transfer of the dyeing section and it they are entitled to the same terms of employment under the lease holder.

3. On the first point of bonus, it will be useful at the outset to state the findings of the Tribunal. The Union claimed bonus as one of the conditions of service of the workers. The petitioners case was that bonus was granted out of bounty when profits were earned. The Tribunal has found as a fact that bonus was not paid in an unbroken sequence and rates also varied. Therefore, the Tribunal came to the conclusion that the only contention of the Union that there was an implied agreement for payment of Pujah bonus as a condition of service must fail.

4. Notwithstanding these findings of fact, the Tribunal, however, has awarded fifteen days' basic wages at the existing rates by way of bonus to be paid within a month of publication of the award. The only ground for doing so is stated by the Tribunal to be that during the conciliation proceedings, the petitioner made an offer of bonus equal to fifteen days' wages for an Overall settlement of the dispute before the Labour Commissioner. The conciliation, however, did not result in a settlement and hence the matter came up before the Tribunal. The Tribunal says that because the allegation of such offer before the Labour Commissioner was not contradicted in the written statement of the Firm, therefore, 'in the fitness of things, the offer should be enforced'. The offer is not disputed by the Management but the Management contended that what was an offer and what was turned down should not on the ground of offer alone be converted into an award without real adjudication.

5. An important question is raised on this application by the learned Advocate for the petitioners that the Tribunal has entirely misdirected itself on this whole issue of bonus. The argument is that the Tribunal is really trying to make out a new species of bonus which does not answer any of the legal categories judicially recognised so far. In the first place, the bonus awarded is not a condition of service. Secondly, it is not customary and there have been years when such bonus was not paid. Thirdly, bonus when paid was always paid out of profits. Fourthly, it is held as a fact by the Tribunal that the year in question was a year of loss and not of profit. It is, therefore, argued that under no circumstances the Tribunal could award bonus on such findings of facts. Lastly, it is contended on behalf of the petitioners that the Tribunal erred in enforcing an offer which was made by the petitioner at the stage of conciliation and which offer was not accepted by the Union. The Tribunal should, therefore, have decided and adjudicated this dispute. It is this last contention which invests this case with an importance all its own.

6. If every offer made before a Labour Commissioner at the stage of conciliation runs the risk of being enforced as a binding agreement by an award of an Industrial Tribunal, then I am afraid the whole purpose and object of conciliation will be defeated because no Management will then be safe in making an offer at the conciliation stage. If no offer is made at the conciliation stage, then there will be little scope left for settlement of an industrial dispute. Conciliation in labour disputes is an important stage where parties should be unfettered to explore all possibilities of an amicable settlement without the fear and prejudice of being ultimately handicapped in case the conciliation fails and the dispute falls to be determined by the coercive processes of an Industrial Tribunal. Section 12 of the Industrial Disputes Act makes it clear that the purpose of the conciliation proceedings and the duties of the Conciliation Officer are to bring about a settlement of the dispute and for that reason, the Conciliation Officer is given power to do all such things as he thinks fit for the purpose of inducing the parties 'to come to a fair and amicable settlement of the dispute.' If the settlement succeeds, then the Conciliation Officer sends a report to the Government with a memorandum of settlement signed by the parties to the dispute. If it does not and if the settlement fails, then the Conciliation Officer after his investigation sends a report to the Government, setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof and also the reasons on account of which, in his opinion, a settlement could not be arrived at. It is only on a consideration of that report and when the Government is satisfied that there is a case for reference to the Tribunal that the Government makes a reference. This broad analysis of Section 12 of the Industrial Disputes Act makes it clear that the room for settlement should be left unfettered at this conciliation stage so that offers and counter-offers between parties may be considered with a view to reaching a final settlement. If it is intended that these offers and counter-offers were later to be turned into binding awards round the neck of the person or the party making the offer, then the utility of conciliation and the freedom of conciliation will be gravely prejudiced. It must always be borne in mind that because the Conciliation Officer fails to make the offers and counteroffers before him reach a binding settlement, that the Tribunal is later required to adjudicate and decide the dispute.

7. In this case, there were a number of disputes between the Management and the Union. The Management offered fifteen days wages as bonus which could not be taken by itself but along with other conditions of settlement and without an-forcing those other conditions, it would be, in my opinion, illegal to pick out one stray offer by one party as a binding agreement and then saying that this should be enforced as an award. It is specially so in this case when this bonus does not answer any of the known legal categories on the subject. It was held by the Tribunal as a fact that there was no agreement or contract between the parties to pay Puja bonus as a condition of service every year. The offer, therefore, at the fitage of conciliation to pay bonus equal to fifteen days' wages to purchase industrial peace and general settlement with the Union cannot be converted into a binding agreement by an award on the basis of any judicially' noticed grounds of bonus. I am not to be understood as laying down any proposition that the Industrial Tribunal cannot under any circumstances consider the offers and counter-offers made before the Conciliation Officer. He can certainly do so in the process of deciding and adjudicating an issue of bonus, and consider mem as one among other factors or pieces of evidence. But ha cannot in ray opinion say, only became an offer was made before the Conciliation Officer therefore he makes it his award although the bonus so awarded does not answer any judicially recognised categories. This is what he has done in the present case. That in my view Is not adjudication of the issue of bonus and that is not deciding the dispute.

8. For these reasons, I must hold that the Tribunal's award of fifteen days basic wages by way of bonus on the facts of this case is self-contradiotory to its own finding and illegal and cannot be sustained and must be set aside,

9. The next point raised on this application is a point of very much larger importance and significance. One of the points of reference was 'Amendments of the Standing Orders.

10. Prefacing his findings on this issue, the Tribunal makes a remark which is perhaps the source of confusion. The remark is :

'It has been held on the highest authority that in settling disputes between employers and work' men the function of the Tribunal is not confined to the administration of justice in accordance with law'.

I do not know which authority the Tribunal had in view in making this extraordinary statement. No doubt it is true that adjudication by the Tribunal does not follow and need not follow and may not follow the ordinary law of Master and Servant or the ordinary common law of contract but nevertheless it still has to administer justice according to law and that is the Industrial Law and the Labour Law. The Industrial Tribunal is not above the law.

11. Two fundamental objections have been urged before me by the learned Advocate for the petitioners. His first objection is that there could not be a general reference to an Industrial Tribunal such as 'Amendments of the Standing Orders' and secondly that the so-called alteration by the Tribunal of the Standing Orders in this particular case is entirely unsupported by any evidence or any fact and is entirely whimsical. As an illustration of this, the learned Advocate has drawn my attention to the part of the Award on this issue that the Standing Orders provided that the period on completion of which the worker could be eligible for confirmation was one year's continuous service. The Union wanted it to be for three months. The Tribunal has just amended it to six months without any materials. Similarly again, the Tribunal has introduced a new standing order by awarding 'workmen not concerned in the strike will be paid full wages for the entire period of such closure if found ready and willing to do their respective duties'. It of said that it is an inconceivable standing order because to do so would be to attempt to divide the unity of the Union itself and the only way of knowing about the readiness and willingness during a period of such strike would be merely an oral assertion and nothing more because, for all practical purposes, they would not be allowed to work if the strike is widespread and yet under this new standing order suggested by the Tribunal they would be so entitled to get wages without any work.

12. I shall first deal with the mere fundamental objection about the legality of a general reference to an Industrial Tribunal on a point such as, 'Amendments of Standing Orders'. I am told that there is no decision on this point. The Industrial Employment (Standing Orders) Act. 1946 is an Act which requires employers in industrial establishments to define with sufficient 'precision the conditions of employment under them. I am quoting here the preamable to the Statute. An entire procedure is prescribed under the Standing Orders Act for the framing and certification of such Standing Orders. Standing Orders, under this Act, mean rules relating to matters set out in the Schedule of the Act, which' are as follows:

'1. Classification of workmen, e.g.. whether permanent, temporary, apprentices, probationers or badlies;

2. Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates;

3. Shift working.

4. Attendance and late coming.

5. Conditions of, procedure in applying for and the authority which may grant leave and holidays.

6. Requirement to enter premises by certain Bates and liability to search.

7. Closing and re-opening of sections of the industrial establishment and temporary stoppages of work and the rights and liabilities of the employe and workmen arising therefrom.

8. Termination of employment and the notice thereof to be given by employer and workmen.

9. Suspension or dismissal for misconduct and acts or omissions which constitute misconduct.

10. Means of redress for workmen against unfair treatment or wrongful exactions by the employer or lib agents or servants.

11. Any other matter which may be prescribed.'

13. My reason for setting out the Schedule in extenso will be clear when I come to deal with a comparative study of the Schedule of this Act and the Schedule of the Industrial Disputes Act. The Industrial Employment (Standing Orders) Act provides for submission of draft standing orders before the Certifying Officer. Section 5 of the Act relates to certification of standing orders and provides a full procedure of giving notice to the Trade Union or the representatives or workmen and an opportunity of being heard before the Certifying Officer finally decides. After the Certifying Officer had given such an opportunity and after he has certified the draft standing order, the person aggrieved has a right of appeal under Section 6 of the Act from the order of the Certifying Officer to an Appellate Authority. It is only thereafter that the standing orders become final. Section 6(2) of the Act provides that

'the Appellate Authority shall, within seven days of its order send a copy thereof to the Certifying Officer, to the employer and to the Trade Union or other prescribed representatives of the workmen'

unless it has confirmed without amendment the standing orders as certified. Section 7 of the Act specially provides that such standing orders shall, unless an appeal is preferred under Section 6, come into operation on the expiry of thirty days from the date on which the authenticated copies thereof are sent under Sub-section (3) of Section 5 or where an appeal is preferred on the expiry of seven days from the date on which copies of the order of the Appellate Authority are sent under Sub-section (2) of Section 6 of the Act. The Industrial Employment (Standing Orders) Act under Section 10 proceeds to provide for the duration and modification of standing orders. Section 13 of that Act provides for prosecution and penalties.

14. Section 13A of the Act provides for interpretation of standing orders. It is provided there if any question arises as to the application or interpretation of a standing order certified under this Act, any employer or workman may refer this question to anyone of the Labour Courts constituted under the Industrial Disputes Act, 1947. The Labour Courts will thereupon proceed to decide the question after giving the parties an opportunity to be heard. No jurisdiction is given to the Industrial Tribunal in the matter of application or interpretation of standing orders at all. Section 13A of the Standing Orders Act is, therefore, important and significant on this point.

15. It is plain, therefore, from Section 13A of the Industrial Employment (Standing Orders) Act that questions of the applicability and interpretation of a standing order certified under this Act are referable to a Labour Court which is enjoined to give opportunity to the parties of being heard and then to decide the question. It is expressly said in that section that such decision shall be final and binding on the parties,

16. A review of the Standing Orders Act shows that it is a complete Code prescribing the formulation of standing orders, hearing of all interested parties, including both the employer and the workmen the right of appeal, the certification, the mode of alteration of standing orders, the penalty as well as application and interpretation, of such standing orders. The statutory provisions also give express jurisdiction to the Labour Court, as distinguished from the Industrial Tribunal, to decide questions of application and interpretation of a standing order and expressly laying down that such decision shall be final and binding on the parties.

17. The question now is can the Standing Orders Act and all its provisions be side-tracked and avoided by a reference to an Industrial Tribunal on a general issue such as, 'amendment of Standing Orders' without specifying any particular standing order which may come within the purview of an industrial dispute and, therefore within the jurisdiction of the Industrial Tribunal.

18. On behalf of the respondent workman, it is contended on the strength of the decision in Birla Brothers Ltd. v. Modak, ILR (1948) 2 Cal 209, that a general reference without specifying the dispute is permissible under the Industrial Disputes Act. The learned Advocate for the petitioners relies on the observation of Harries C. J. at page 219 of the report:

'It was then argued that if the Government order was an order of reference, it was bad on the ground of vagueness. Admittedly, the order Rives no details of the dispute. But I can find nothing in the Statute which requires details of the dispute to be given when an order of reference is made under Section 10. It must be remembered that this order was made by the Government suo motu. No application had been made to Government by the party and therefore, it would be impossible for the Government to give details of the dispute. Indeed, it would be highly dangerous to issue an order under Section 10 containing details of a dispute of which the Government would know very little. In my judgment it cannot possibly be said that this order is void on the ground of vagueness. It seems to me that Section 10 of the Act clearly intends that the dispute as a whole should be referred and that the Arbitrator with the assistance of the parties should later clarify the issue and ascertain on what points the parties are actually in conflict. I can see no ground for holding that the order is bad as being too vague.'

19. In that case the order of reference only said that an industrial dispute had arisen between Birla Brothers Ltd. and its employees and that such dispute was referred to a Tribunal. The order of reference did not mention what the dispute was or on what points the parties were in conflict. Reliance was also placed by the learned Advocate for the respondent workman on the Supreme Court decision in the State of Madras v. C. P. Sarathy, : (1953)ILLJ174SC and on the Federal Court decision in India Paper Pulp Co. Ltd. v. Its Workers, AIR 1949 FG 148 at page 149, to say that a reference under Section 10 of the Industrial Disputes Act, 1947, without particularising the disputes is not incompetent. It must, however, he pointed out that the Supreme Court in Sarathy's case, : (1953)ILLJ174SC said that it was desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference although the absence of that indication will not vitiate) the order of reference. There also before the Supreme Court the order of reference only stated that an industrial dispute had arisen and that such dispute was referred to the Industrial Tribunal.

20. These decisions are distinguishable from the present case. The first point on which they should be distinguished is that these decisions were given before the amendment of Section 10 of the Industrial Disputes Act which now expressly makes it competent for the Government to specify the points of dispute for adjudication under Section 10(4) of the Industrial Disputes Act. Secondly, the question with which these two decisions were concerned is not the same as the one before me. So long as an order of reference refers an industrial dispute to the Tribunal, that order would not be bad because an Industrial Tribunal has jurisdiction to entertain, decide and adjudicate an industrial dispute. The question here before me is not a general reference of an unspecified! industrial dispute but a general reference covering amendments of all standing orders without specifying which one of them is in dispute and without specifying whether such dispute is at all an industrial dispute over which the Industrial Tribunal can exercise jurisdiction. Neither Birla Brothers' case, ILR (1948) 2 Cal 209 nor Sarathy's- case. : (1953)ILLJ174SC , can, therefore, help the respondent. The question here is not one of technicality but one of great substance, involving conflicts between two Statutes like the Standing Orders Act and the Industrial Disputes Act and also involving the question of jurisdiction of an Industrial Tribunal tinder the Industrial Disputes Act.

21. A comparative analysis of the Industrial Disputes Act and the Standing Orders Act is, therefore, unavoidable. At the outset. I shall dispose of a preliminary argument that because the Standing Orders Act was passed in 1946 before the Industrial Disputes Act in 1947, therefore, if there was a conflict between the two the subsequent Industrial Disputes Act must override the earlier Standing Order Act because at the time of the later Act mere was no process or Court for adjudication of industrial disputes. It is unnecessary to decide such a general proposition as that put forward. The simple and short answer for not doing so is that the policy of Parliament is clear that both these Statutes must be harmonised because even though the Standing Orders Act was passed in 1946, it has subsequently been modified after the introduction of the Industrial Disputes Act and express reference to it is even made in the Industrial Disputes Act itself with the result that there cannot be a general proposition that the Industrial Disputes Act must always override the Standing Orders Act. Where that is intended to be done, these respective Statutes provide for that situation.

22. The Second, Third and Fourth Schedules of the Industrial Disputes Act under Sections 7, 7A and 9A of that Act throw a good deal of light on this point. Reference will be found in those Schedule to Standing Orders. Item 1 of the Second Schedule under Section 7 of the Industrial Disputes Act brings the propriety or legality of an order passed by an employer under the Standing Orders within the jurisdiction of the Labour Courts and not the Industrial Tribunals. Item 2 of the Second Schedule under 9, 7 of the Industrial Disputes Act brings 'the application and interpretation of Standing Orders' with-in the jurisdiction of Labour Courts and not the Industrial Tribunals. That is consistent with Section 18A of the Standing Orders Act which I have already mentioned. There is, therefore, no conflict. The intention is clear that application and interpretation of Standing Orders are within the jurisdiction of Labour. Courts and not of Industrial Tribunals even under the Industrial Disputes Act. It must be remembered that under Section 7 of the Industrial Dispute Act after the amendment by Act 30 of 1959. Labour Courts are set up for adjudication of certain disputes and by the subsequent Sections 7A and 7B, Industrial Tribunals and National Tribunals are the other institutions set up under the Act. Item 6 of the Third Schedule under Section 7A of the Industrial Disputes Act brings 'shift working otherwise than in accordance with Standing Orders' within the jurisdiction of Industrial Tribunals. It will be recalled from the Schedule to the Standing Orders Act which I have set out above that shift working is an item in that Schedule. Therefore, reading item 6 in the Third Schedule under Section 7A of the Indus-trial Disputes Act and item 3 of the Schedule of the Standing Orders Act, it is clear that shift working as such comes within the Standing Orders but such shift working which is not in accordance with Standing Orders may be a subject within the jurisdiction of Industrial Tribunals. The intention again is clear that shift working within Standing Orders are not to be brought within the jurisdiction of Industrial Tribunals but is left to be framed and amended according to the Standing Orders Act,

23. Similarly, the Fourth Schedule of the Industrial Disputes Act under Section 9A gives the conditions of service which in items 6 and 9 make again an express reference to the Standing Orders, There again, they are expressly excluded when the matters are in the Standing Orders and they are expressly included where these conditions are not provided in or are not in accordance with the Standing Orders. Item 6 of the Fourth Schedule provides for starting, alteration, or discontinuance of shift working otherwise than in accordance with Standing Orders. Item 9 refers to introduction of new rules of discipline or alteration of existing rules, except in so far as they are provided in the Standing Orders. It is, therefore, clear, that conditions of service for change of which notice is to be given under the Fourth Schedule of Section 9A of the Industrial Disputes Act exclude those conditions which are provided for in the Standing Orders.

24. From this comparison, the conclusion appears to me irresistible that a general reference on amendment of all Standing Orders to an Industrial Tribunal cannot be made by the Government. That does not mean that a particular standing Order, the dispute with regard to which is an Industrial Dispute within the meaning of the Industrial Disputes Act, cannot be referred to an Industrial Tribunal simply because it is a standing order provided, of course, it is not otherwise excluded, expressly or by necessary implication from the Statutes concerned, from the jurisdiction of the Industrial Tribunals. That is the only way to harmonise these two Acts, operative on the general fields of industrial Welfare and industrial peace.

25. There is one more outstanding reason however, on this point which fortifies this conclusion. There is a specific provision in Section 25J of the Industrial Disputes Act on this point of inconsistency. Section 25J of the Industrial Disputes Act provides as follows :

'(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing Orders, made under the Industrial Employment (Standing Orders) Act, 1946;

Provided that nothing contained in this Act shall have effect to derogate from any right which a workman has under the Minimum Wages Act, 1948; or any notification or order issued thereunder or any award for the time being in operation or any contract with the employer.

(2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of Industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter,'

26. Now, the first sub-section of Section 25T of the Industrial Disputes Act is a clear statutory mandate expressly providing what is to happen in the case of conflict between the Industrial Disputes Act and the Standing Orders Act. It is an express provision which limits and provides the respective areas of operation of the two Acts. The overriding effect of the Industrial Disputes Act over the Standing Orders Act is by this section limited only to the provisions of the Chapter in which Section 25J occurs. That Chapter is V-A and deals only with two questions : (1) layoff and (2) retrenchment. The result of Section 251(1) is that the Industrial Disputes Act will override the Standing Orders Act in respect of questions of lay-off and retrenchment. By expressly providing for such overriding effect and limiting it only to the questions pf lay-off and retrenchment, Section 25J must be held by necessary implication to indicate that such overriding effect of the Industrial Disputes Act will not be extended over the Standing Orders Act in matters which do not relate to lay-off and retrenchment. In other words, the intention of Section 25J(1) of the Industrial Disputes Act is that the Standing Orders Act will apply to and have effect on all other questions except these two specific exceptions. This construction of Section 25J, therefore, wilt exclude the jurisdiction of the Industrial Tribunal in respect of matters governed by the Standing Orders Act generally and the only exception will be in favour of lay-off and retrenchment. No question of lay-off and retrenchment arises in this case. Therefore, the Standing Orders Act must prevail. It prevails not in conflict against die Industrial Disputes Act but it prevails by its own construction which shall be so made as not to be in conflict with the Industrial Disputes Act.

27. The Industrial Disputes Act and its Schedule, as I have analysed, clearly show zealous demarcation and separation of the Standing Orders andexpress and implied provision to indicate whatdisputes relating to Standing Orders are withinthe jurisdiction of Industrial Tribunals as dustinguished from Labour Courts. Not to respect thesedifferent demarcations, will be to create endless conflicts between the two Acts. I shall illustrate thenature of such conflict. In the first instance it willmake nonsense of Section 13A of the Standing Orders Actand also of items 1 and 2 of the Second Schedule ofthe Industrial Disputes Act whereby the application and interpretation of Standing Orders and thepropriety and legality of employer's orders thereunder are left to Labour Courts and not to Industrial Tribunals. It will also create conflict in punishment under Section 13 of the Standing Orders Act. Nochange or modification of Standing Orders is possible except in accordance with Section 10 but Section 10 doesnot provide for modification of Standing Orders byawards of Industrial Tribunals. The result is that ifthe employer does not alter the Standing Ordersunder the award of an Industrial Tribunal, then hebecomes liable to prosecution under the IndustrialDisputes Act and if he does alter according to theaward then he becomes liable to prosecution underthe Standing Orders Act. No one is suggesting thatthe State Government will permit such a course butthe point of conflict is illustrated. It is, therefore,necessary to keep separate under the respectiveActs the boundaries of the Labour Courts and theIndustrial Tribunals.

28. Lastly, in this case, the award of the Industrial Tribunal amending the Standing Orders is not supported by any materials on the record. The amendments awarded are only according to the fancies of the Industrial Tribunal unsupported by any evidence or any material. An award unsupported by any material or any evidence whatever is no award. It is no adjudication. A mere ipse dixit is not an award. The award also on this ground cannot be supported in the present case. I have already indicated elsewhere by actual instances of illustration how strange and indefensible some of the amendments ordered by the Tribunal are.

29. For these reasons, the decision of the Tribunal on the issue of Standing Orders must be set aside.

30. The last point on which the award has been challenged is the Tribunal's finding on what was Issue No. 7 relating to the following question :

'Whether the workers of the Dyeing Section are entitled to any relief for the transfer of the Dyeing Section and if they are entitled to the same terms of employment under the lease-holder'.

The Tribunal does not give any relief for the transfer nor does ft decide if the workers are entitled to the same terms of employment under the leaseholder. The Tribunal takes a peculiar view. It goes on to find out that the transfer itself is bad and benami and, therefore, comes to the conclusion that as there has been no transfer at all, the workers continue their old conditions with their old employers.

31. The issue itself and the order of reference make it abundantly clear that the transfer was not disputed and no issue is as referred to the Industrial Tribunal to find out whether the transfer was benami or not. It was not referred to the Tribunal to find out whether the transfer was good, bad or indifferent or whether, the transfer was benami or otherwise. The Tribunal was required to decide (1) relief for the transfer and (2) terms of employment under the lease-holder.

32. I am satisfied that the issue did not permit this point to be decided by the Tribunal. It was not a point of reference before the Tribunal, nor was it a jurisdictional fact at all. The transfer, on the facts of such a case, cannot be an industrial dispute. That is conceded by the learned Advocate for the respondent workman,

33. The Tribunal's decision even on this point is based entirely on suspicion and is wholly unsupported by the materials on record. Its reason for coming to the conclusion that the transfer was benami appears to be based on the fact that the transferee Jugal Adhikari is the elder brother of Dhana Krishna Adhikari and the father of the other partner Prasad Adhikari who, as a firm, have transferred the Bleaching and Dyeing Department. Because of the fact of relationship the Tribunal suspects the reality of the transfer. The Tribunal finds that there is a receipt for the value of the machine sold. It also finds that the Indian Bleaching and Dyeing Co. is a business started by Jugal. It also finds that the transferee applied for renewal of license and, in fact, obtained the Corporation trade license which were all exhibited ,before the Tribunal. The Tribunal then adds : 'On paper it is all shipshape. But the fact remains that this transfer has a suspicious appearance.' Now, this is the very reason why nor-mally Industrial Tribunals are not required to go into disputed questions of title. The Tribunal in this ' case under the order of reference was not required to find whether the transfer was bad or bona fide or good or benami. It was required to find the relief for the transfer and the terms and conditions of employment under the new transferee. Suspicion is not enough to come to a decision on benami. The only piece of evidence which the Tribunal in its very award recites and which can be said to be the only basis of its decision is as follows ;

'The Wage Register shows that the wages of the employees of this Section were paid by the India Hosiery Mills even after the date of the transfer. Bearing these outstanding facts in mind, I am not satisfied that this transfer is as good as it looks.'

It is not said what the Wage Register shows with reference to the dates. It is not found by the Tribunal that the Wage Register shows that payments-were made for any period after the transfer. Naturally, the books will show payment even after the transfer if the payment was made for a period before the transfer. This is enforced by the fact that Dhana Krishna Adhikari, one of the partners before me completely denies this fact before the Tribunal. In fact, to quote his evidence, from the record which has been produced before this Court, he says : 'The wages were paid by Jugal. I have no concern with them.' (that is, the workers). I find there is no cross-examination even of Dhana Krishna Adhikari on this point- He was not even challenged that it was not so. He was not even shown the alleged Wage Register to show that he has done so. In that context absence of Jugal from the box cannot improve matters, because the evidence of the transferor himself goes entirely unchallenged on this point. This is not a case of an erroneous decision by the Tribunal on a question of fact. It is a case of a decision based on no fact and no material at all.

34. I, therefore, set aside the decision of the Tribunal on this issue also.

35. As the petitioner succeeds on all these three points. I set aside and quash the award of the Sixth Industrial Tribunal on these points relating to issues Nos. 5, 6 and 7 before him and I make the Rule of Certiorari absolute only in respect of these three issues. I make also the interim order absoluteonly in respect of the decision covered by theseissues. There will be no order as to costs.


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