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Mcleod and Co. Vs. Sunil Kumar Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1962)ILLJ622Cal
AppellantMcleod and Co.
RespondentSunil Kumar Roy Chowdhury and ors.
Cases ReferredLtd. and Ors. v. Mukherjee
Excerpt:
- .....industrial disputes were pending between the petitioner company and its workmen, before the first industrial tribunal, the petitioner company applied under section 33(1) of the industrial disputes act for permission to retrench 66 employees of clerical and subordinate grades of its office, on the ground that they had become surplus to the requirements of the petitioner company. at the hearing of the application for permission, the petitioner modified its prayer and wanted to retrench only 46 of the employees. the tribunal permitted the petitioner to do so. respondent 2, workman of the petitioner company represented by the mcleod's indian employees' association (hereinafter called the union), appealed to the labour appellate tribunal against the order and the appellate tribunal remanded.....
Judgment:

B.N. Banerjee, J.

1. In the year 1953, when certain industrial disputes were pending between the petitioner company and its workmen, before the first industrial tribunal, the petitioner company applied under Section 33(1) of the Industrial Disputes Act for permission to retrench 66 employees of clerical and subordinate grades of its office, on the ground that they had become surplus to the requirements of the petitioner company. At the hearing of the application for permission, the petitioner modified its prayer and wanted to retrench only 46 of the employees. The tribunal permitted the petitioner to do so. Respondent 2, workman of the petitioner company represented by the McLeod's Indian Employees' Association (hereinafter called the union), appealed to the Labour Appellate Tribunal against the order and the Appellate Tribunal remanded the matter to the Industrial tribunal only in respect of thirty members of the clerical staff, in respect of whom the petitioner had obtained permission to retrench, with the direction that the principle of 'last come, first to go' should be observed in disposing of the matter. It is not necessary for me to refer to the proceedings before the tribunal after the remand, in this rule, excepting that while the dispute as to the retrenchment became limited to only sixteen workmen, there was a settlement between the petitioner company and the union, whereby it was agreed that the petitioner company would not press for retrenchment of seven of them, provide for temporary work in respect of three after retrenchment and the remaining six, including respondent 1, would be retrenched but provided with employment as and when vacancies occur.

2. Over the settlement there was difference between respondent 1 and the union and ultimately, on 28 January 1954, respondent 1 wrote to the secretary of the union the following letter:

Understanding that you are going to make a compromise with McLeod & Co., Ltd., regarding my case against my intention and interest, I hereby withdraw my authorization given by me to you to conduct the case and also say that any compromise against my will and interest made by you will be void.

3. He also filed a petition before the tribunal on 29 January 1954, stating that he did not want to be represented by the union and praying that he be permitted to represent his own case himself.

4. Nevertheless, a Joint petition of compromise was filed before the tribunal on 30 January 1954, signed on behalf of the petitioner company and also on behalf of the union by its general secretary and the compromise was recorded, ignoring altogether the dissent of respondent 1. The material portion of the order, dated 30 January 1954, passed by the tribunal is set out below:

On a perusal of the terms of compromise petition in appendix A. it appears that they are reasonable and should be accepted. I, therefore, accept the compromise petition in appendix A, and allow the application under Section 33 in accordance with the terms thereof, the compromise petition in appendix A shall form a part of this order. The employees who will be retrenched shall be paid compensation in accordance with the Industrial Disputes (Amendment; Act, 1953.

5. The recording of the compromise in so far as respondent 1 was concerned must now be treated as erroneous as a consequence of subsequent events. On 3 February 1954, respondent 1 was retrenched in terms of the compromise and on 22 February 1954, respondent 1 accepted compensation payable to him for retrenchment but he alleges that he did so without prejudice to his rights. Thereafter, on 1 March 1954, respondent 1 preferred an appeal to the Labour Appellate Tribunal against his retrenchment and the Labour Appellate Tribunal by its judgment, dated 31 August 1955, allowed the appeal and set aside the order of the tribunal permitting the petitioner to retrench. respondent 1 on the basis of the compromise. The Labour Appellate Tribunal, however, did not pass any order for reinstatement of respondent 1. The material portion of the order of the Labour Appellate Tribunal is set out below:

Under Section 33, the individual workman bag a right of his own and in this case where the union takes up the case of the workman, the union acts in a representative capacity and when the workman concerned objects to its authority to come to a compromise for his want of consent at a stage when the objection was taken up in this case, the tribunal, in our opinion, should satisfy Itself as to whether the compromise was by consent of that party or not and if that compromise was arrived at without his knowledge and authority, he can avoid that compromise and submit his own case before the tribunal by avoiding the proposed settlement. Even according to the labour laws, in our opinion, a union which acts on behalf of a workman, cannot enter into a compromise against the express wish and consent of the contending party. There may be cases where such a consent is implied or results constructively from the conduct of a workman in allowing the union to represent his case. But, as will be observed in this case, the workman objected before the compromise was actually recorded and accepted. Therefore, in our opinion, the compromise cannot bind the appellant. One other way of looking at a case like this would be to see how far the workman is affected by a compromise of this type. It cannot be denied that the compromise rightly or wrongly, so far as the point of view of the appellant is concerned, sacrificed his rights in the interest of other workmen, or to retain the position of the union. It was admitted before us that no benefit would have accrued to this workman by this agreement and the second question incidentally arises, even if such an authority is possessed by the union to enter into any compromise with or without the consent of the workmen concerned, whether it can sacrifice the rights of certain individuals in the interest of other workmen without the knowledge of the workman concerned. The settlement may be binding between the company and the union as a union, but whether this agreement is enforceable against the party concerned, i.e., the workman concerned, is another matter.

6. In spite of the order, made by the Labour Appellate Tribunal, the petitioner was not reinstated, presumably on the ground that no order of his reinstatement had been expressly made.

7. Thereupon, on the representation of respondent 1, the Assistant Labour Commissioner, Government of West Bengal, filed a complaint against chiranjitlal Bajoria, chairman of the board of directors of the petitioner company before the Chief Presidency Magistrate for alleged non-implementation of the order and a criminal case was thereupon started. The criminal proceedings were, however, quashed by this Court by an order, dated 2 February 1958 (Criminal Revision Case No. 1018 of 1957).

8. The respondent 1, thereafter, invoked the aid of the Labour Commissioner for relief against his retrenchment but the Labour Commissioner at first treated the case of respondent 1 as an individual dispute and refused to take any steps in the matter. This will appear from two letters from the Labour Directorate, respectively, dated 22 November 1958 and 12 December 1958, which are annexed to the affdavit-in-opposition of respondent 1, collectively marked with letter A. The respondent 1, thereupon, called upon the union by his letter, 12 January 1959, to take up this matter which the union did, as will appear from the letter from the general secretary of the union to the Labour Commissioner, dated 1 May 1959 (annexure A to the affidavit-in-opposition of respondent 2). The respondent State Government, in these circumstances, exercised Its powers under Section 10 of the Industrial Disputes Act and referred the following issues for adjudication by the fourth industrial tribunal, namely:

Whether the retrenchment of Sunil Kumar Roy Chowdhury is justified? What relief, If any, is he entitled to?

9. The propriety of the reference is being challenged before me at the instance of the petitioner company.

10. Sri Shankar Banerji, learned Counsel for the petitioner, argued two points for my consideration. He argued that as between the union and the petitioner company, there had been a settlement arrived at on this very point, as evidenced by the petition of compromise and the order of the industrial tribunal, hereinafter referred to, and the union must not be allowed to take up the dispute which was once settled. He relied on the provisions of Section 18(1) of the Industrial Disputes Act and on the general law of estoppel in this connexion. He further argued that the grievance of the petitioner was his individual dispute with the petitioner company and not an industrial dispute and there cannot be a reference made under Section 10 of the Act in respect of an individual, dispute. He also argued that in the circumstances of the case there should not have been a reference made under Section 10 Of the Industrial Disputes Act, particularly without an effort at conciliation beforehand, I am unable to uphold the contentions made by Sri Banerji, So far as respondent 1 is concerned, the settlement between the union and the petitioner company, as to the retrenchment of respondent 1, was not a proper settlement and the Labour Appellate Tribunal set aside that part of the order of the industrial tribunal recording the compromise. Section 18(1) of the Industrial Disputes Act which provides that,

a settlement arrived at by agreement between the employer and the workmen otherwise in course of conciliation proceeding shall be binding on the parties to the agreement,

was introduced by the Amendment Act of 1956 and was not in existence when the order of compromise was made on 30 January 1954. Even assuming for the sake of argument that Section 18(1) would have retrospective operation even as to agreement arrived at prior to the date of the amendment (which of course I do not decide) or that the compromise would be binding on the union apart from Section 18(1) of the Act, I find no reason to read in the compromise any settlement as to the retrenchment of respondent 1 after his appeal succeeded before the Labour Appellate Tribunal and the order of the industrial tribunal permitting the petitioner to retrench was set aside. The settlement must now be treated as containing no provision for the retrenchment of respondent 1, before the settlement that was arrived at on his behalf was beyond the competency of the union and bad in law. By espousing his cause, again, the union must be deemed to be trying to atone for its past error and, at this stage, it cannot be stopped from doing so.

11. It is true that an individual dispute between an employer and its workmen is by itself not an industrial dispute which may be referred under Section 10 of the Indus trial Disputes Act but such an individual dispute may be transformed into an industrial dispute when the cause of the individual workman is taken op by his co-workers or by the union of such workmen. In such a case, the complaint passes from the region of individual com-plaint into a general complaint; on behalf of the workers in the industry. As an authority for the proposition I need only refer to the decision of the Supreme Court in the case of Banerji (D.N.) v. Mukherji (P.R.) A.I.R. 1963 S.C. 58 and to a recent judgment by Sinha, J. in the case of Express Newspaper v. First Labour Court 1959-I L.L.J. 600. It is apparent that, In the instant case, the grievance of respondent 1, was taken up by respondent 2, the union, and the dispute can no longer be treated as an individual dispute incapable of being referred to for adjudication under Section 10 of the Industrial Disputes Act.

12. It is well settled that a reference under Section 10(1) of the Industrial Disputes Act is an administrative act and the expediency of making a reference is a matter entirely for the appropriate Government to decide vide B.N. Elias & Co. v. Mukherji (G.P.) and Ors. 63 C.W.N. 347.

13. The situation created when the Labour Appellate Tribunal set aside the compromise order as to the retrenchment of respondent 1 requires to be resolved. It cannot be resolved, after his case was taken up by the union excepting by an industrial adjudication. If, in these circumstances, the Government was satisfied that a reference under Section 10 of the Industrial Disputes Act should be made, the wisdom of such a decision must not be allowed to be questioned in an application under Article 226 of the Constitution. If the dispute is an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and to quash the proceedings (vide State of Madras v. South Indian Cinema Employees' Association 1953 S.C.A, 965; Madan Gurang and Ors. v. State of West Bengal and Ors. 1958-II L.L.J. 206, B.N. Elias & Co. (Private), Ltd. and Ors. v. Mukherji (G.P.) and Ors. 63 C.W.N. 347 (supra).

14. Although I hold that the reference under Section 10 of the Industrial Disputes Act cannot be questioned in this rule, I desire to make one point clear. Under the Battlement, the anion succeeded in avoiding retrenchment of some of the workmen and also obtained some other concessions, which it might not have otherwise gained. The settlement might not be binding on respondent 1, but there may not he equally good reason to hold that the anion is free to ignore the settlement after having got benefits thereunder. This is also what the Labour Appellate Tribunal observed in its Judgment hereinbefore quoted. When the tribunal takes up the reference, it should consider the point how far the union may be allowed to ignore the settlement. This is also what the Supreme Court indicated in the case of Guest, Keen, Williams (Private), Ltd. v. P.J. Sterling and Ors. 1959-II L.L.J. 405. I quote hereinbelow an extract from that Judgment:

In dealing with industrial disputes the application of technical legal principles should as far as reasonably possible be avoided...that is why the tribunal should be slow and circumspect in applying the technical principles of acquiescences and estoppel in the adjudication of industrial disputes. If a dispute is raised after a a considerable delay, which cannot be reasonably explained, the tribunal would undoubtedly take that fact into account in dealing with the merits of the dispute. Bat unless the relevant facts clearly Justify such a course, it would be inexpedient to throw out the reference on preliminary technical objections of the kind raised by the appellant.

15. If the tribunal, which will now hear the reference, finds that by their conduct to workmen represented by the unions estopped themselves from re-agitating the question of retrenchment of Sunil Kumar Boy Chowdhury as an industrial dispute, then it may make an award answering the issue in the affirmative and holding that respondent 1 is not entitled to any relief under an industrial adjudication.

16. Lastly, I hold that the absence of conciliation proceedings prior to the making of reference, also does not make a reference bad, although it may be desirable that proceedings by way of conciliation should be adopted before a reference under Section 10 of the the Industrial Disputes Act is made, vide B.N. Elias & Co. (Private), Ltd. and Ors. v. Mukherjee (G.P.) and Ors. 63 C.W.N. 347.

17. All the arguments in support of the rule, therefore, fall. This rule is discharged without any order as to costs.


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