B.N. Banerjee, J.
Civil Revision No. 2800 of 1960
1. Respondents 2 to 7 were at all material times, until their dismissal, workmen employed by Reforms Food Products (Private), Ltd., respondent 9.
2. On and from 16 November 1957, the workmen of respondent 9 company resorted to a form of sit-down strike, so as to enforce some of their industrial grievances. During the continuance of this strike, the respondent 9 company declared a lockout, which continued till 16 January 1958.
3. On 17 November 1957, the respondent 9 company served several charge sheets on workmen respondents 2, 5 and 6 calling upon them to show cause against a number of misconducts mentioned in the chargesheets and placed them under suspension. Similar chargesheets were served on two other workmen also but I am not concerned with them in this rule.
4. Pending enquiry into the charges, respondents 2, 5 and 6 were charged with farther misconducts along with respondents 3, 4 and 7 to the following effect:
It has been reported to us that on 29 November 1957, while our wheat products were being delivered to different customers under the permits of the West Bengal Government, you, along with others, stopped some of the lorries carrying 'L' flour for A Firpo's, Ltd., and told the wheat inspector of the Government of West Bengal that you would not allow the said delivery as the said goods were intended for black-marketeering. You along with others also spread false rumor affecting the reputation of the company. This conduct on your part was highly subversive of discipline and detrimental to the relationship of master and servant.
5. The second charge sheet bears the date 4 December 1957.
6. Respondents 3, 4 and 7 were also suspended pending enquiry into the charges. Respondents 2, 5 and 6, being already under suspension, in connation with the previous charges, it was not necessary to pass any fresh order of suspension against them. The second charge sheet bears the date 4 December 1957.
7. At the enquiry held against respondents 2, 5 and 6 and others, on charges, dated 17 November 1957, they were found guilty but were let off with a bare warning. The order of suspension against respondents 2, 5 and 6 was, however, continued pending enquiry into the second charge sheet. Respondents 2 to 7 replied to the charges dated 4 December 1957, denying the same and also characterizing the same as made with an ulterior motive.
8. At the enquiry held by the management of respondent 9 company, at its head office at No. 18, Netaji Subhas Road, Calcutta, the persons who had been charged with misconduct were duly asked to attend. They, however, refused to avail of the opportunity on the plea that the venue was not suitable to them. They were found guilty of the charges at the enquiry and ware dismissed from service, with effect from 28 December 1957.
9. The dismissal of the respondents 2 to 7 gave rise to a dispute. That dispute was espoused by respondent 8, a trade union of workmen employed in the flour mills of West Bengal, and was turned into an industrial dispute. The State Government of West Bengal, in exercise of its power under Section 10 of the industrial Disputes Act, referred that dispute along with two other disputes to the first labour court for adjudication. The other two disputes related to the payment of wages during the period of strike and lookout and fixation of the number of workmen at the factory and head office of the respondent 9 company.
10. The petitioner company had, in the meantime, taken over the business of the respondent 9 company as a lessor. It was added as a party to the reference, as such, and that is how it comes in the picture as the main contesting party.
11. The first labour court made an award in favour of the last-mentioned two disputes in favour of the employer company. That portion of the award is not disputed in this rule and I am not concerned therewith.
12. So far as the dispute over dismissal of respondents 2 to 7 was concerned, the labour court found that the dismissal of respondents 3, 4 and 7 was unjustified and in that view made an award for their reinstatement, with full wages from 17 January 1953, and further directed that their continuity of service be treated as unbroken in respect of respondents 2, 5 and 6, however, the labour court found that the charges against them had been proved but held that the punishment of dismissal was much too severe in consideration of their long period of service and also in consideration of the fact that the offence was their first offense. The labour courts, therefore, converted the order of their dismissal into one of discharge, with a direction to pay compensation to each of them for loss of service at the rate of one-half month's total emoluments as last drawn by each of them, for each year of completed service.
13. The propriety of this portion of the award is being questioned at the instance of the petitioner company.
14. The reasonings for the award concerning respondents 2 to 7 are to be found in the following passages from the award by the labour court, which I set out below:
(a) On behalf of the union, on the other hand, It is contended that the decision reached at the domestic enquiry is vitiated for want of good faith and also by company's policy of victimization and unfair labour practice and for basic error of facts and perverse finding and violation of principles of natural justice. It maybe emphasized that the company segregated the six clerks for the purpose of victimizing them and have previously let off Daitari and Utsab and then again proceeded against them including three others this time. in this connaxion, I would observe that I have carefully gone through the evidence recorded during the domestic enquiry and also the same recorded in Court, and am of opinion that the contention of the learned advocate for the union is not without substance, as the policy of victimization comes to the surface as soon as it is found that the three clerks against whom the company proceeded in the first enquiry have again been hauled up on the self-same charge in addition to the fresh one regarding detention of lorry, etc., on 29 November 1957.
It is an elementary principle of criminal jurisprudence that no one can be tried, punished or acquitted twice for the selfsame offence. The company's action in proceeding against Rangalal, Lakshman and Dhiren for the previous set of charges from which they were already exonerated was clearly illegal. That the company proceeded against them for the self-same charges at the second enquiry and its discrimination in the matter of maintaining intact the suspension orders against these three workmen, viz., Rangalal, Lakshman, and Dhiren, clearly smacks of unfair labour practice and victimization. I, therefore, find myself unable to accept the findings of company at the second domestic enquiry. I have closely followed the evidence of this subject and find that the charge of detaining lorry on 29 November 1957, cannot be held to have been established against Monindra Mohan Mukherjee (serial No. 6), Jatinara Nath Chakrabarty (serial No. 3) and Balai Chandra Das (serial No. 2). It may be mentioned that the evidence of what inspector Sri Adhikary and Sri Vanshylla is not forthcoming on behalf of the company and their evidence would have been of much help. Having carefully examined the evidence adduced in Court, my independent finding is that these three workmen, viz., Sri Balai Chandra Das, Sri Monindra Mohan Mukherjee and Sri Jatindra Nath Chakrabarty cannot be held to be guilty of the charges, and as such they are entitled to the normal relief of reinstatement with wages from the date the mill reopened after the strike and the lockout.
(b) So far as Sri Rangalal Banerjee (serial No. 1), Sri Lakshman Chandra Ganguly (serial No. 5), and Sri Dhirendra Kumar Majumdar (serial No. 4) are concerned, I find that they took part in the obstruction of the lorry on 29 November 1957 and also behaved improperly in shouting 'black marketing' and scandalizing the company on the score of permit, etc., and thus the charge on that score was brought home to them, and therefore they are found guilty. As regards relief I am unable to order their reinstatement in view of their anti-company activities in the interests of industrial peace and harmony. But I would find that the punishment of dismissal of these three clerks is too severe, as they put in long period of service and this is their first offence. The Court, therefore, thinks it fit to interfere with the orders of dismissal respecting these three clerks, and converts the order of dismissal into one of discharge, and they are awarded compensation for loss of service according to the length of service put in by them.
15. So far as respondents 3, 4 and 7 are concerned, the award of the labour court is wrong on the face of it. It fell into the initial error of attempting to Bit in appeal over the finding of the managerial enquiry and also in trying to arrive at its conclusion based on fresh evidence on the dispute taken before itself. The Supreme Court in recent times has laid down the limits of the powers of industrial courts and tribunals in the matter of dismissal of workmen in several decisions, for example, Indian Iron and Steel Co. Ltd. v. their workmen 1958-I L.L.J. 260 Balipara Tea Estate v. their workmen 1959-II L.L.J. 245 Doom Dooma Tea Estate v. Assam Chai Karmachari Sangha 1960-II L.L.J. 56, Titagarh Paper Mills Co. Ltd. v. Ram Naresh 1961-I L.L.J. 511. The decisions of the Supreme Court have been reiterated in two decisions of this Court, namely, National Tobacco Co. of India, Ltd. v. Fourth industrial Tribunal 1960-II L.L.J. 175 and All India Spring Manufacturing Co. v. First Labour Court, West Bengal 1962-I L.L.J. 324. According to the decisions aforementioned, industrial courts and tribunals do not act as Courts of appeal and cannot substitute their own judgment for that of the management. They may interfere when
(i) there is want of good faith,
(ii) there is victimization and unfair labour practice,
(iii) the management has bean guilty of basic error or violation of the principles of natural justice,
(iv) on the materials the finding is completely baseless or perverse.
16. The word 'victimization' means
(a) either punishing an innocent person on account of displeasure, or
(b) punishing a person disproportionately to the offence.
In the instant case, the labour court arrived at the finding of victimization much too readily, as will appear from the extract from its award quoted above. Before the managerial enquiry three parsons, namely, B.L. Vansbylla, Shyam Sundar Pandey and Ramjaur Singh deposed. From their evidence the charges against respondents 2 to 7 were made out. They were not cross-examined, because neither the delinquents nor respondent 8, the union which had espoused their cause, was co-operating or taking part in the enquiry. The reason for their non-co-operation does not appeal to me. They abstained from the enquiry admittedly because they did not like the enquiry being held at the head office of the petitioner company instead of its factory premises. The factory of the petitioner company is located at 109/1, Foreshore Road, Howrah, and its head office is at premises No. 18, Netaji Subhas Road, in the town of Calcutta. It has not be en contended before me that the head office was either too far away or difficult of access. Therefore, there was no valid reason either for the delinquents or for the respondents union not to attend the enquiry at the head of Ice. The managerial enquiry found respondents 2 to 7 guilty on the evidence of the three witnesses above-named. It cannot, therefore, be said that on the materials the finding of the managerial enquiry was completely baseless or perverse. Nor can it be said, after having duly asked the delinquents aid their representative, the union, to attend the enquiry and to participate, the managerial enquiry committee violated any principle of natural justice in proceeding with the enquiry in the absence of the delinquent workmen and their representative, the union, which absence was one of their choice. If the finding as to the guilt of the delinquent workmen was neither baseless nor perverse, which I and it was not, then, regard being had to the gravity of the offence, it cannot be said that the punishment of dismissal was disproportionate to the offence. The criticism of victimization, which the labour court said was on 'the surface,' is, in my opinion, an absolutely uncalled for criticism in the facts and circumstances of this case. That being the position, the labour court was wrong in differing from the conclusion as to the guilt of respondents 3, 4 and 7, arrived at the managerial enquiry, and this is all the more so because it based its conclusion on separate evidence taken by itself.
17. Then, again, the labour court was wrong in importing the principles of criminal jurisprudence in an industrial adjudication, so far as respondents 2, 5 and 6 were concerned. Also it was wrong in assuming that the respondents 2, 5 and 6 had been charged with self-same offence, with which they had been charged under the chargesheets dated 17 November 1957. The chargesheets dated 17 November 1957 are annexures A to the petition. Those charges related to the misconduct committed prior to 17 November 1957. The chargesheets, dated 4 December 1957, related to a misconduct committed on 29 November 1957, a completely different charge. By assuming that both the two charges were the same, the labour court fell into a patent error. Proceeding on the basis of such erroneous assumption, it fell into the further error in holding that the employer company acted illegally in proceeding against respondents 2, 5 and 6 on the same charges.
18. Further, though of the opinion that the guilt was proved against respondents 2, 5 and 6, the labour court was wrong in interfering with the penalty imposed by the management. in the case of Caltex (India), Ltd. v. E. Fernandes 1957-I L.L.J. 1 the Supreme Court clearly laid down that the measure of punishment to be meted out to the delinquent workmen is within the sole discretion of the employer, who is to judge for himself what punishment is commensurate with the offence, which has been proved against the workmen. One exception to the rule is, however, victimization, that is to say, imposition of penalty disproportionate to the offence. I have already observed that the offence, with which the respondents workmen had been charged, was of sufficient gravity to merit dismissal. That being so, the labour court had no power to interfere with the penalty.
19. In my view, the award of the labour court on issue 2 is unsustainable and I quash the same.
20. Let a writ of certiorari accordingly issue.
21. This rule is made absolute without any order as to costs.
Civil Revision No. 3213 of 1959
22. This rule is directed against an interim award made by the labour court directing the petitioner to pay to the respondents 2 to 7, one-half of their monthly wages, one-fourth as ex gratia payment and one-fourth as loan from January 1959 till the disposal of the case.
23. In view of my finding in Civil Revision Case No. 2300 of 1960, that the dismissal of respondents 2 to 7 was justified on the charges levelled against them, they do not become entitled to any payment after dismissal.
24. Mr. Rabi Ranjan Das Gupta, learned advocate for the petitioner-company, contends that the labour court had no Jurisdiction to make the interim award. After the disposal of Civil Revision Case No. 2800 of 1960, this rule has become anfractuous. If payments have been made in terms of the interim award, I cannot direct refund thereof, in exercise of my power under Article 226 of the Constitution. If payments have not been made, they need not be paid, in view of my Judgment in Civil Revision Case No. 2800 of 1960. I, therefore, need not decide the point raised by Mr. Das Gupta. I discharge the rule with the observations aforesaid.
25. The sum of Rs. 3,000 kept in a separate account in the Central Bank of India, Ltd., under order dated 24 September 1959, need not further be so kept by the petitioner company.
26. There will be no order as to costs in this rule also.