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Bhabatosh Battacharyya and anr. Vs. First Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberMatter No. 228 of 1976
Judge
Reported inAIR1977Cal446,[1978(37)FLR168]
ActsConstitution of India - Article 226
AppellantBhabatosh Battacharyya and anr.
RespondentFirst Industrial Tribunal and ors.
Appellant AdvocateNigam Chakraborty, Adv.
Respondent AdvocateBiswarup Gupta, Adv. for Respondent No. 4
DispositionPetition dismissed
Cases ReferredParry and Co. Ltd. v. P. C. Pal
Excerpt:
- .....is entitled to be placed. as a result he is not entitled to any relief. but this will not preclude shri bhattacharjee from receiving officiating pay. etc., if the job is considered by the company to be an a grade job in future'.it is this award of the first industrial tribunal which is challenged before me in the prompt application.5. mr. nigam chakraborty, learned advocate appearing on behalf of the petitioners challenged the award on several grounds. in the first place, he sought to contend that the tribunal had failed to exercise a jurisdiction which is vested in it by law. in other words, it was the contention that a dispute having been referred to the tribunal it was its duty to adjudicate thereon. mr. chakraborty submitted that the tribunal had failed to exercise his jurisdiction......
Judgment:
ORDER

T.K. Basu, J.

1. In this Rule the petitioner challenges an Award dated the 29th September, 1975 passed by the First Industrial Tribunal, Calcutta. The facts relating to the making of the Award may be briefly noted.

2. In the year 1965. the petitioner joined the respondent No. 4 Alkali and Chemical Corporation of India Limited in its Engineering purchase Supply and Distribution Department as a Grade 'D' Clerk. Thereafter the petitioner was upgraded to Grade 'C' in the year 1967. Be-tween 1967 and 1968 one S. K. Mondal a Supernumerary Staff of Grade 'A' who had been working in the Raw Materials Procurement Unit during this period was sent on deputation to the Central Engineering Department of the respondent No. 4 at its Head Office at Calcutta-During this period of deputation of Shri Mondal, the petitioner admittedly performed the duties and functions which were previously being done by Shri Mondal in the Raw Materials Procurement Unit. Thereafter sometime in 1970 the petitioner No. 1 was promoted from Grade C to Grade B.

3. Thereafter both the petitioner No. 1 and the petitioner No. 2 which is the Workers' Union made representations to the Company for promotion or upgrading of the petitioner No. 1 to Grade 'A'. This was not done. Thereafter a dispute was sought to be raised with the Labour Commissioner, West Bengal regarding this question.

4. By an order dated the 22nd June, 1973 passed by the State Government the following dispute was referred to the First Industrial Tribunal for adjudication.

'To what grade Sri B. Bhattacharjee is entitled to be placed in conformity with the nature of job entrusted to him and from what date What relief, if any is he entitled to?'

On this reference the First Industrial Tribunal came to the following conclusion in its Award.

'As a result of my finding as above, I hold that it is not possible to find out in which grade Shri B. Bhattacharjee is entitled to be placed. As a result he is not entitled to any relief. But this will not preclude Shri Bhattacharjee from receiving officiating pay. etc., if the job is considered by the company to be an A grade job in future'.

It is this Award of the First Industrial Tribunal which is challenged before me in the prompt application.

5. Mr. Nigam Chakraborty, learned Advocate appearing on behalf of the petitioners challenged the Award on several grounds. In the first place, he sought to contend that the Tribunal had failed to exercise a jurisdiction which is vested in it by law. In other words, it was the contention that a dispute having been referred to the Tribunal it was its duty to adjudicate thereon. Mr. Chakraborty submitted that the Tribunal had failed to exercise his jurisdiction. He also placed strong reliance on the fact that Shri S. K. Mondal who was admittedly a member of the 'A' grade Staff of the respondent No. 4 having been sent on deputation the petitioner performed his duties and functions. In such circumstances, the Tribunal should have held that the petitioner No. 1 was entitled to be placed in 'A' grade post. He further submitted that a Works Study Report which is referred to in the Award of adjudication was not filed. It was further submitted that one Shri Rajn-raman whose name is mentioned in the Award was not examined. Lastly he submitted that there was no evidence that the job that the petitioner No. 1 was doing was not an 'A' grade job.

6. Mr. Biswarup Gupta, learned Counsel appearing for the respondent No. 4 drew my attention to certain parts of the Award which are worth setting out :

'Shri Bhattacharjee examined himself as P. W. 1 in his examination-in-chief he did not specify what are his jobs and what are their nature. He was also silent as to the jobs of other A grade Assistants in other Import Sections of the company. Annexure C/2 to the written statement has been marked Ext. 6. It. has not been claimed by Shri Bhattacharjee in his deposition that the jobs detailed in Ext. 6 are jobs done by him. Assuming that these are the jobs entrusted to Shri Bhattacharjee I have to ascertain from other materials on record that these jobs are comparable to the jobs of other A grade Assistants in Import Licence Sec-tion of the company. Unfortunately there is absolutely no material on record thai what are the jobs of the A grade Import Lincence Assistants of the Company. The Tribunal is not in a position to evaluate and assess the jobs done by a particular Assistant unless there are other comparable materials before the Tribunal. Being faced with this problem this Tribunal is not in a position to arrive at the finding what should be gradation of Shri Bhattacharjee in accordance with the jobs entrusted to him.'

The Tribunal goes on to observe as follows :

'In this context the conduct of &hri; Bhattacharjee is also very material. It is admitted that Shri Bhattacharjee was transferred to Plastics {S & D) Department in 1968. He raised the claim that he should be upgraded for the first time on 23rd July, 1971. From 1968 to 1971 Shri Bhattacharjee made no grievance relating to his grade. Of course, he told in his deposition that he claimed to be posted in A grade orally. But that claim is not substantiated by subsequent correspondence between him and the management. It is also interesting to note that on 16th October, 1969 Shri B. Bhattacharjee applied against a vacancy in B grade. It will appear from Ext. 7, the Memorandum of Settlement between the company and the union, that there is a provision for deputation allowance. During these long years Shri Bhattacharjee never claimed any deputation allowance. These facts are loud enough to say that Shri Bhattacharjee's claim to A Grade post is an afterthought.'

7. Relying on these observations in the Award, Mr. Biswarup Gupta submitted that on this state of evidence before the Tribunal it was not possible for it to come to the conclusion as to whether the petitioner No. 1 was entitled to be put in 'A' grade as claimed by him. It was further pointed out by Mr. Gupta that the Works Study Report on which the petitioner No. 1 himself relies says that the petitioner No. 1 is fit for 'B' grade job-

8. In my view, the contention of Mr. Gupta for the respondent No. 4 should succeed. As the Tribunal has itself recorded the petitioner No. 1 who examined himself was entirely unable to furnish any evidence before the Tribunal as to the precise nature of the jobs which he was performing. He was further unable to provide any material to the Tribunal as to what types of jobs which were being performed bv the 'A' grade Assistants of the Company. In that state of evidence I am unable to see how the Tribunal could have come to a finding that the petitioner was fit to be placed in an 'A' grade job.

9. I reject the contention of Mr, Chakraborty that the Tribunal had failed to exercise a jurisdiction vested in it by law- As would appear from the facts narrated above the Tribunal took up the dispute referred to it for adjudication. The Tribunal went into the evidence tendered by both the parties both oral and documentary. Having considered all the evidence, the Tribunal came to the finding that, on the materials on record, it was not possible for it to come to any positive conclusion and answer the question referred to it for adjudication. That, in my view, is not a failure to exercise a jurisdiction vested in it by law.

10. I also accept the contention of Mr. Biswarup Gupta that conclusion of 'the learned Tribunal is based on an application of the evidence before it. It is well settled, as pointed out bv Mr. Gupta, that the Tribunal has jurisdiction to decide rightly or wrongly. Reference was made in this connection to the decision of the Supreme Court in the case of Parry and Co. Ltd. v. P. C. Pal reported in : (1970)IILLJ429SC as an authority for thig proposition. In my view no detailed discussion of the law in this subject is called for. Unless I find that the Tribunal has committed an error of law or acted without jurisdiction or in excess of jurisdiction or contrary to the principles of natural justice I cannot interfere with the Award. In other words even if I find that the Tribunal had gone wrong in appreciating the evidence that is not a ground of interference in this jurisdiction under Article 226 of the Constitution of India.

11. In my view, the finding of tha Tribunal pertains entirely to the domain of appreciation of evidence and does not disclose any error of law or perversity. I may further add that on the state of the evidence I find difficult to see as to what other conclusion the Tribunal could have come to.

12. In that view of the matter the contention raised on behalf of the petitioner fails.

13. In the result, this application fails and is dismissed. The Rule is discharged. All interim orders are vacated.

There will be no order as to costs.


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