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Bhatkawa Tea Co. Ltd. Vs. Hem Ranjan Deb and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberMatter No. 127 of 1960
Judge
Reported inAIR1961Cal395
ActsIndustrial Disputes Act, 1947 - Sections 2 and 10; ;Constitution of India - Article 226
AppellantBhatkawa Tea Co. Ltd.
RespondentHem Ranjan Deb and ors.
Appellant AdvocateNiren De and ;Sankar Ghose, Advs.
Respondent AdvocateP.K. Sanyal, Adv.
Cases ReferredKays Construction Co. (Private) Ltd. v. Its Workmen
Excerpt:
- .....tea co. the workmen of the bhatkawa tea estate belonging to the bhatkawa tea co. raised an industrial dispute and on the 6th august, 1958 the government of west bengal made an order of reference under section 10 of the industrial disputes act to the second labour court, calcutta of the following issues :'is the management justified in not promoting sri i. b. ganguly, assistant factory supervisor of rajabhat tea estate, to the post of factory supervisor of bhatkawa tea estate, both the estates, being under the same managing agency of mcleod and co. ltd? to what relief is he entitled?'2. what is particularly to be noted is, that this order of reference was made, of an industrial dispute said to exist between m/s bhatkawa tea estate (managing agents -- mcleod and co. calcutta) p. o......
Judgment:
ORDER

D.N. Sinha, J.

1. The facts in this case are shortly as follows: The petitioner is a company incorporated under the Indian Companies Act. The respondent No. 3 is an employee of the Rajabhat Tea Co. Ltd. and is at present employed as the Assistant Factory Supervisor of the Rajabhat Tea Estate, belonging to the said Rajabhat Tea Co. Ltd. The Managing Agents of both the said companies are Messrs. Mcleod and Co. Ltd. It is stated on behalf of therespondent No. 4 that the said Messrs. Mcleod and Co. Ltd. are also the Managing Agents of several other Tea Gardens in the Dooars belonging to different companies. In or about the year 1944, the management of the aforesaid Tea Estate, of which the said Messrs. Mcleod and Co, Ltd. are the. Managing Agents, compiled one register of all the members of the Indian clerical statf in all such gardens with a view to ensuring an equitable system of promotion, and the clerical employees of all the said gardens came to be treated as one body, from which, when vacancies would occur, the postings would be made in accordance with seniority and capability, irrespective of the gardens in which they would be serving. It is further said that this has become a term of employment and condition of service of the workmen of the said Tea Estates. If this is true and correct then, it is claimed, that the respondent No. 3, I. B. Ganguly is entitled to be promoted to the post of Factory-Supervisor of the Bhatkawa Tea Estate, as he was the seniormost member of the Indian clerical staff in the register. The company, on the other hand, denies that there was any common register and that there was any such terms of employment or condition of service of the workmen in the said Tea Estates, including the Bhatkawa Tea Estate, belonging to the Bhatkawa Tea Co. The workmen of the Bhatkawa Tea Estate belonging to the Bhatkawa Tea Co. raised an industrial dispute and on the 6th August, 1958 the Government of West Bengal made an order of reference under Section 10 of the Industrial Disputes Act to the Second Labour Court, Calcutta of the following issues :

'Is the management justified in not promoting Sri I. B. Ganguly, Assistant Factory Supervisor of Rajabhat Tea Estate, to the post of Factory Supervisor of Bhatkawa Tea Estate, both the Estates, being under the same Managing Agency of Mcleod and Co. Ltd? To what relief is he entitled?'

2. What is particularly to be noted is, that this Order of reference was made, of an industrial dispute said to exist between M/s Bhatkawa Tea Estate (Managing Agents -- Mcleod and Co. Calcutta) P. O. GarOpara Jalpaiguri, and Sri I. B. Ganguly one of the employees of the Rajabhat Tea Estate, under the Managing Agency of McLeod and Go. Ltd., Calcutta, represented by the Tea Garden Indian Employees' Association, P. O. Kalchini, Jalpaiguri. Upon this reference being made, the petitioner herein made an application under Article 226, to this Court, challenging the order of reference and inter alia urging that the order was without jurisdiction as the said I. B. Ganguly was not a workman of the petitioner company, and as such, there could not be an industrial dispute between the company and Sri Ganguly. By my judgment dated 20th February, 1959 a copy of which is annexure 'B' to the petition, I upheld this contention, I pointed out that the workmen of a company may raise an industrial dispute in respect of a person who is not a workman, provided that the person regarding whom the dispute was raised, was one, in whose employment, non-employment, terms of employment, or conditions of labour (as the case may be) the workmen of the company have a direct or substantial interest. But the industrial dispute must be between the company and its workmen, and cannot be between the employer and an outsider. The rulewas, therefore, made absolute and the order of reference was set aside. I stated however, that the Government would not be prevented from making a proper order of reference between the parties. On the8th February, 1960 a fresh order of reference has been made, a copy whereof is annexure 'C' to the petition. This order states that there is an industrial dispute existing between Messrs. Bhatkawa Tea Estate (Managing Agents, McLeod and Co. Ltd., Calcutta) P. O. Garopara Jalpaiguri and their workmen represented by the Tea Gardens Indian Employees' Association, P. O. Kalchini, Jalpaiguri, and the issue referred was as follows :

'Is the management justified in not appointing Shri I. B. Ganguli to the post of Factory Supervisor?

If not what relief is Shri Ganguli entitled to?'

3. The company again raised the point before the Labour Court that the reference was incompetent and, as the Labour Court insisted on going on with the reference, this application has been made, for setting aside the second order of reference. Mr. De appearing on behalf of the petitioner argues that in making this second order of reference, the Government has committed the same mistake. He says that in fact, it is still an order of reference of an industrial dispute between the company and Sri I. B. Ganguly, who is not a workman of the company. He points out that the order of reference, although, said to be between the company and its workmen, frames an issue asking the Labour Court to decide as to what relief Sri Ganguly was entitled to, and not the workmen, According to Mr, De no industrial dispute could arise between a company and a person unless that person was himself a workman of the compay or he had been a workman bnt had since been discharged or lastly, that he works for an employer although he is not directly employed by the Company, i.e., through contractors. in my opinion the matter has now been fully decided by the Supreme Court and the principles have been firmly established. The first decision is -- Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, : (1958)ILLJ500SC . The appellants there, were the workmen of the Dimakuchi Tea Estate represented by their Union. One Dr. K. P. Banarjee was appointed the Assistant Medical Officer of the Dimakuchi Tea Estate. in April, 1951 he was discharged from service. The case of Dr. Banerjee was espoused by the workmen of the Dimakuchi Tea Estate, who objected to the dismissal, and an order of reference was made stating that an indistrial dispute had arisen between the management of the Dimakuchi Tea Estate and the workmen thereof, and the issues referred were as follows :

'(i) Whether the Management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A. M. O.

(ii) if not, is he entitled to reinstatement or any other relief in lieu thereof.'

4. The question arose as to whether the order of reference was competent. It was urged that, as Dr. K. P. Banerjee was not a 'workman' within the meaning of the Act, there was no industrial dispute, in the sense in which that expression was defined in the Industrial Disputes Act, and the Tribunal had no jurisdiction to adjudicate upon the matter. The industrial Tribunal held that Dr. Banerjee was nota workman and, therefore, his case was not one of an 'industrial dispute' under the Industrial Disputes Act and, therefore, the Tribunal had no jurisdiction, From that there was an appeal to the Appellate Tribunal, which held that a dispute between an employer and employee, to be an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, must be between the employer and its workman. There cannot be any industrial dispute between employers and employees who were not its workmen. The appeal was accordingly dismissed. The appellants thereupon obtained special leave and moved the Supreme Court, The Supreme Court ultimately dismissed the appeal on the ground that Dr. K. P. Banerjee was not a workman, as he belonged to the medical or technical staff -- a different category altogether from workmen; But the case was not decided simply on this finding. The principles to be followed in such cases were laid down. S. K. Das, J. said as follows :

'To summarise. Having regard to the scheme and objects of the Act, and its other provisions, the expression 'any person' in Section 2(k) of the Act must be read subject to such limitations and qualifications as arise from the context; the two crucial limitations are (1) the dispute must be a real dispute between the parties to the dispute (as indicated in the first two parts of the definition clause) so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other, and (2) the person regarding whom the dispute is raised, must be one in whose employment, non-employment terms of employment, or conditions of labour (as the case may be) the parties to the dispute have a direct or substantial interest. In the absence of such interest the dispute cannot be said to be a real dispute between the parties. Where the workmen raise a dispute as against their employer, the person regarding whose employment, non-employment, terms of employment or conditions of labour the dispute is raised need not be, strictly speaking, a 'workman' within the meaning of the Act but must be one in whose employment, non-employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest.'

On the facts of that case, the Supreme Court decided that the workmen of the Dimakuchi Tea Estate could not be said to have a direct or substantial interest in the employment or non-employment etc. of a person who was himself not a workman and, therefore, the appeal was dismissed. But tho principles to be applied were enunciated as abovementioned. Mr. De poses the question as to whether the workmen could be said to have an interest in the employment or non-employment of any one in the world. This precise question was answered in another Supreme Court decision -- Standard Vacuum Refining Co. of India Ltd. v. Their Workmen, : (1960)IILLJ238SC , where Wanchoo J. said as follows :

'Section 2(k), as it is worded, would allow workmen of a particular employer to raise a dispute connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. It was this aspect of the matter which was considered in Dimakuchi case, : (1958)ILLJ500SC (supra) and it was held that the words'any person' used in Section 2(k) would not justify the workmen of a particular employer to raise a dispute about anyone in the world, though the words 'any person' in that provision may not be equated with the words 'any workman' .....'

5. in that case, the workmen employed by an oil refinery were dissatisfied with the contract system of labour adopted by the company for cleaning and maintenance of the refinery (plant and machinery) belonging to the company and wanted that such system should be abolished it was urged that the employees of the contractors were not workmen of the company and, therefore, the reference was incompetent. it was held that there was undoubtedly a real and substantial dispute between the company and its workmen on the question of the employment of contract labour for the work of the company. The fact that the workmen who raised a dispute were not employees on a contract basis did not make any the less a real or substantial dispute between them and the company as to the manner in which the work of the company should be carried on. How the work should be carried on was certainly a matter of some importance to the workmen and, in the circumstances, it cannot be said that this was not a real or substantial dispute between the company and the workmen. I need only make a passing reference to another decision of the Supreme Court -- Kays Construction Co. (Private) Ltd. v. Its Workmen, AIR 1959 SC 208. it was held there that the dispute which validly gave rise to a reference under the Industrial Disputes Act need not necessarily be a dispute directly between the employer and its workmen. The definition of the expression 'industrial dispute' is wide enough to Cover a dispute raised by the employer's workmen in regard to the non-employment of others who may not be his workmen at the material time. in that case, Messrs. Kays Construction Co. (Private) Ltd. of Allahabad made certain tenders for construction of railway coaches which were accepted by the railway authorities. Thereafter, it entered into an agreement with Messrs. Kays Construction Co. of Allahabad, sole proprietor, Mr. A. M. Khosla, for the purchase of machinery tools etc. Mr. Khosla decided to close his business and to terminate the services of the employees. Thereafter a reference of an alleged industrial dispute was made in the following manner :

'Whether the management of Messrs. Kays Construction Co. (Private) Ltd., Allahabad, are required to reinstate the old workmen given in the annexure of Messrs. Kays Construction Co., Allahabad; if so what details.'

It was held that the reference was validly made.

6. Coming now to the facts of this case, we have to find out whether the tests are satisfied. Admittedly, Mr. Ganguly is not an employee of the Bhatkawa Tea Estate belonging to the petitioner company. But if the facts stated by the respondent No. 4 be true, then the workmen of the petitioner company undoubtedly have a real and substantial interest in the dispute and are affected thereby. There is undoubtedly a community of interest. If the alleged common register is upheld, then it would confirm the practice of granting promotion to the seniormost workmen in the common register, which would be an advantage beneficial to the workmen of all the Tea Estates concerned, including the Bhatkawa Tea Estate. Therefore, the workmen of the Bhatkawa Tea Estate are not merely fighting the fight of Sri Ganguly, but also have their own interests in mind. Therefore, the test is satisfied, and I think that if the facts are proved then there does exist an industrial dispute which has been validly referred. Whether the alleged state of facts exist or not, is a matter ot dispute and this will be resolved by the Labour Court after taking evidence. it cannot be resolved in this jurisdiction. Lastly, Mr. De emphasises the point that the issue as referred asked the Labour Court to decide, not as to what relief the workmen of the company were entitled to, but as to what relief Sri Ganguly was entitled to, and this was incompetent. it would perhaps have been better to frame the issue in a slightly different manner, namely, as to whether the workmen of the petitioner company were entitled to have Sri Ganguly promoted. in my opinion, however, this is too fine a distinction. in the Dimakuchi case, : (1958)ILLJ500SC (supra) the reference was in the same form, as set out above. The question asked was as to whether Dr. Banerjee was entitled to reinstatement. Although in that ease Dr. Banerjee was employed by the same employer, still, he was not a workman within the meaning of the Industrial Disputes Act. Yet it was not held that the order of reference was itself bad in form. After all, it is Mr. Ganguly who is entitled to relief of promotion, and the workmen of the petitioner company require that this should be done. They may receive from it an indirect benefit, but surely no other relief than the promotion of Sri Ganguly has been asked for in this reference or could be asked for. Then again, if the last part of the reference is struck out, namely the words 'to what relief he is entitled', the Tribunal could still afford that relief as a matter incidental to the reference. Therefore, it will he useless to strike it out. in my opinion the present reference is in order and should proceed.

7. The application, therefore, fails. TheRule is discharged. Interim orders, if any, arevacated. There will he no order as to costs.


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