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Tollygunge Club Ltd. Vs. Fifth Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1985)ILLJ258Cal
AppellantTollygunge Club Ltd.
RespondentFifth Industrial Tribunal and ors.
Cases ReferredBangalore Water Supply and Sewerage Board v. A. Rajappa.
Excerpt:
- .....of the stipulated time the employer refused to continue the workman in service any further and workman disputes his right to do so. dr. mukherjee in this connection placed reliance on the decision of the supreme court reported in 1976-i l.l.j. 478 ; state bank of india v. n. sundara money wherein supreme court observed that termination takes place where a term expires either by active steps of the master or runs out of the stipulated term. termination embraces not merely the act of termination by the employer but the fact of termination howsoever produced. dr. mukherjee further referred to definition given in sections 2(q) and 2(r) in the payment of gratuity act and submitted that the said statute is in part materia and it can lend assistance in the matter of interpretation of the.....
Judgment:
ORDER

U.C. Banerjee, J.

1. This application is directed against the award of the 5th Industrial Tribunal, West Bengal, in the matter of a dispute between Tolly gunge Club Ltd. and their workman Sri Khalil Mia in pursuance of an order of reference under Section 10 read with, Section 2A. Industrial Disputes Act, 1947. The issue referred to the said Tribunal was:

Whether the retirement of Sri Khalil Mia with effect from 1st January, 1979 is justified? To what relief 'if any' is he entitled?

2. The 5th Industrial Tribunal held that Sri Khalil Mia was wrongfully retired from the service with effect from 1st January, 1979 even though, the retirement falls due on 1st January, 1985 and as such said Sri Khalil Mia is entitled to be reinstated in his service with immediate effect with all back-wages which have accrued to him during his forced unemployment from 1st January, 1979.

3. In order to appreciate the contentions raised I may briefly refer to the facts of this case.

4. Khalil Mia, the concerned workman was originally employed as a casual Caddy and continued to be so until 1973 when his appointment as such Caddy was confirmed. An identity card was issued to Khalil along with others on 15th September, 1971 on which his age was recorded to be 47 years as on 1st January, 1971.

5. On 1st June, 1973 a Tripartite settlement took place between the Club authorities and its Union namely, Tolly gunge Club Employees' Union and National Union of Race Employees of India providing inter alia for absorption of Caddies as also retirement of Caddies on superannuation, on medical grounds, etc. The said settlement also provided that cases of certain ailing Caddies would be reviewed after a period of 6 months from 1st May, 1973. The settlement provided that if the ailing Caddies continue to be medically unfit thereafter, they would retire on medical ground. Annexure 'C to the said settlement contains the aforesaid particulars. Khalil's name appeared under the head 'Ailing Caddies to be reviewed after six months'. In regard to Caddies to be re-examined medically in respect of their age, the names of three Caddies were mentioned, Khalil not being included therein. Khalil Mia was however confirmed in the said post on 10th September, 1973. The letter of confirmation recorded that the retirement age and benefits would be as per the existing rules.

6. Mr. Ginwalla, counsel for the petitioner, contended that the terms of settlement are an overall agreement between the management and the employees and there cannot be any dispute in regard to the age of retirement of Khalil Mia inasmuch as Khalil's name does not appear under the head Caddies to be re-examined medically in respect of age. Mr. Ginwalla contended that the settlement has a binding effect on all the employees and in any event no dispute can be raised in regard to the age by reason of the Club Doctor's certificate, as to the age of Khalil i.e. 54 years. Mr. Ginwalla submitted that the doctor's certificate was a part of the settlement and as such has a binding effect.

7. Dr. Manotosh Mukherjee appearing for the concerned workman, however, contended that the certificate of the doctor is not in regard to the proof of age but a general medical examination report and the mention of age is purely an incidental observation based on guess work and should not be relied upon. Dr. Mukherjee submitted that Clause 4(d) of the settlement postulates that ascertainment of age would be a future event.

8. Clause 4(d) of the agreement further provides that proper service records of all permanent staff shall be started and retained and for the purpose, the staff now offered permanency would submit evidence of their age i.e. birth certificate, failing which they would be referred to the Club's Medical Officer for ascertaining their age and such medical opinion as to the age would be binding on either parties.

9. Admittedly Khalil Mia was offered permanency after the settlement was entered into and in terms of Clause (d), if Khalil Mia failed to produce the birth certificate, then and in that event proper age would be ascertained by the Club's Doctor, an event, which had not taken place. No evidence was produced before the Tribunal in regard to any decision of the Club authorities to determine the age of its employees by medical examination prior to the settlement. The age recorded by the Club's doctor prior to settlement as such is of no consequence. In my opinion, it cannot be said that the medical examination of the employees was conducted for the purpose of determination of age of the employees.

10. It is to be noted, however, that the Club Doctor was examined before the Tribunal and stated that Khalil Mia looked like one of 54 years on the date of examination i.e. on 27th January, 1973. The Club Doctor admitted that he did not take any X-Ray photograph while determining his age nor there was any testing of teeth. As opposed to the said evidence of Club's Doctor Dr. Mukherjee placed reliance on the evidence of Dr. Paul and Dr. Hazra. Dr. Hazra certified the age of Khalil Mia about 55 years. Before the Tribunal Dr. Hazra was examined and in his examination Dr. Hazra stated that the certificate was issued upon proper examination but there may be difference of one or two years. Dr. Paul the other doctor examined before the Tribunal stated that Khalil Mia would be more than 55 years and there may be variation of one or two years. Dr. Paul has determined the age upon Radiological tests. Dr. Paul, however, stated in cross-examination that Khalil would be aged about 55 years and not above 65 years. Mr. Ginwalla relying on the aforesaid evidence submitted that Dr. Paul's evidence should not have been accepted by the Tribunal since the Doctor has not ascertained the age but stated the age to be between 55 and 65 years.

11. On this aspect of the matter the Tribunal has categorically come to a finding that the declaration of age made by the Club's Doctor ought not to be accepted. The Tribunal has placed reliance on the evidence of Dr. Hazra and Dr. Paul and came to a finding that Khalil would attain the age of superannuation in the early part of 1985 and he can be made to retire from service with effect from 1st January, 1985.

12. Mr. Ginwalla submitted that the said finding of the Tribunal is perverse and no reasonable person would come to such a conclusion that Khalil Mia has established his age being less than 60 years. Dr. Mukherjee, however, contended that the Writ Court ought not to interfere with the appreciation of evidence by the Tribunal even if, upon perusal of evidence the Writ Court comes to a different conclusion.

13. The Supreme Court in the case of Syed Yakoob v. K.S. Radhakrishnan reported in : [1964]5SCR64 observed that a Writ of Certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A Writ can also be issued where in exercise of jurisdiction conferred on it the Court or Tribunal gives decision illegally or improperly. As for example, violation of principle of natural justice. There is, however, no doubt that the jurisdiction to issue a Writ of Certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate. Court which necessarily means that findings of fact by inferior Court or Tribunal as a result of an appreciation of evidence cannot be reopened or questioned in any writ proceeding. An error of law which is apparent on the face of record can be error of fact, however, grave it may appear to be. If a finding of fact is based on no evidence or if the Tribunal had admitted inadmissible evidence which has influenced the finding that would be regarded as an error of law which can be corrected by a Writ of Certiorari. Adequacy or sufficiency of evidence laid on a point and the inference of fact to be drawn to the said point are within the exclusive jurisdiction of the Tribunal and the same cannot be agitated before a Writ Court and it is within these limits that the jurisdiction conferred on the High Court under Article 226 to issue a Writ of Certiorari can be ultimately exercised.

14. The Patna High Court in the case of Bihar Khadi Gram Udyog Samity, Muzaffarpur v. State of Bihar reported in 1977 Lab IC 466 observed that assuming for the sake of arguments that there has been a wrong perusal of evidence by the Labour Court, the Court shall not be justified in weighing the evidence for itself as if it were sitting in appeal against the order of the Labour Court.

15. The Patna High Court further in the case of Management of Junkundar Colliery of Messrs. B. Mondal & Co. v. Sahadeo Thakur reported in 1974 Lab IC 417 observed that even if the Court can reasonably arrive at a conclusion different from that of the Labour Court but that cannot clothe the High Court under Article 226 of the Constitution with the power to interfere with the findings of the Labour Court.

16. The Tribunal upon appreciation of evidence came to a definite finding that Khalil Mia is to retire on 1st January, 1985 and in the normal course and on the basis of well settled principle of law the aforesaid finding cannot be interfered with in an application under Article 226 of the Constitution unless of course the finding is such that no reasonable person could come to such a finding as has been submitted by Mr. Ginwalla.

17. The Tribunal has rejected the oral testimony of the Club Doctor, as determination of age by 'looks' only, cannot be a safe test to adopt. There was neither any radiological nor any clinical test. Acceptance of evidence by the Tribunal of the other two doctors in regard to the question of determination of age on the basis of clinical and radiological tests cannot, in my opinion, be said to be perverse or unreasonable. In that view of the matter this contention of Mr. ginwalla fails.

18. The next contention of Mr. Ginwalla is that the reference under Section 2A is not maintainable in as much as superannuation cannot be termed as a discharge, dismissal or retrenchment. Mr. Ginwalla contended that superannuation operates by efflux of time and the only question in the matter of superannuation is whether the time has expired or not. If the time has so expired no notice need be given and the statute also does not envisage service of any further notice.

19. Mr. Ginwalla further submitted that the concerned employee has neither been discharged, nor dismissed, nor retrenched and as such Section 2A has no manner of application. Mr. Ginwalla referring to the definition of retrenchment under Section 2(oo) submitted that retirement of the workman on reaching the age of superannuation has been expressly kept out of the definition of retrenchment.

20. The expression 'retrenchment' has been defined to mean termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -

(a)....

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf....

21. Sub-clause (b) of Section 2(oo) excluded the case of superannuation but in order to attract the provision of Sub-clause (b) in my opinion two tests are required viz. (i) a stipulation in regard to the time of retirement in the contract of service between the employer and employee, and (ii) the stipulation must be in regard to the age of superannuation. In the facts of the instant case the contract of employment as contained in the letter of appointment dated 10th September, 1973, recorded that the retirement age and benefits would be as per the existing rules. There was no proof of age, neither any rules were produced either before the Tribunal or before this Court at the time of hearing. The employer has failed to discharge the onus in terms of the requirement of Section 2(oo) of the Act.

22. Dr. Mukherjee, however, contended that the language of Section 2A is significant. The said Section 2A is to be read with the definition of 'Industrial Dispute' under Section 2(k).

23. Section 2A provides as follows:

2A. Dismissal etc. of an individual workman to be deemed to be an industrial dispute.

Where any employer discharges, dismisses, retrenches or otherwise terminates the service of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

24. Section 2(k) provides as follows:

(k) 'Industrial Dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person.

25. Dr. Mukherjee submitted that the expression 'otherwise terminates' is of very wide import and embraces a case where at the expiry of the stipulated time the employer refused to continue the workman in service any further and workman disputes his right to do so. Dr. Mukherjee in this connection placed reliance on the decision of the Supreme Court reported in 1976-I L.L.J. 478 ; State Bank of India v. N. Sundara Money wherein Supreme Court observed that termination takes place where a term expires either by active steps of the master or runs out of the stipulated term. Termination embraces not merely the act of termination by the employer but the fact of termination howsoever produced. Dr. Mukherjee further referred to definition given in Sections 2(q) and 2(r) in the Payment of Gratuity Act and submitted that the said statute is in part materia and it can lend assistance in the matter of interpretation of the expressins 'termination or otherwise terminates.'

26. Section 2A has been engrafted in the Statute Book by the Act of 1965 and it has to be read as an extension of the definition of industrial dispute in Section 2(k). Prior to the enactment of the Act of 1965 an individual dispute could not per se be an industrial dispute but could become one if it was espoused by a trade union or a substantial number of workmen in the establishment. This position of law created hardship for individual workmen who are discharged, dismissed, retrenched or whose service is otherwise terminated when they could not find support by a union or any appreciable number of workmen to espouse their cause. The introduction of the said Section 2A does away with such a situation. The intention of the legislature is clear and an individual workman is now entitled to raise an industrial dispute.

27. If it is said that Khalil Mia has no right whatsoever to lodge any protest in regard to the action of the Club authorities in spite of the introduction of Section 2A in the said I.D. Act, I do not think it would do proper justice to the language of Section 2A. In that view of the matter I am of the view that the reference at the instance of Khalil Mia, the concerned workman, is maintainable.

28. The next contention of Mr, Ginwalla is that in any event Tollygunge Club cannot come within the definition of an industry as laid down in Section 2(j). Section 2(j) defines industry as follows:

(j) 'Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.

29. Mr. Ginwalla relied upon the decision of the Supreme Court reported in : (1967)IILLJ720SC : Secretary, Madras Gymkhana Club Employees' Union v. Management of Gymkhana Club as also the decision reported in 1969-I L.L.J. 775 (Cricket Club of India v. Bombay Labour Union in support of his contention. But in view of the decision of the Supreme Court reported in 1978-I L.L.J. 349 Bangalore Water Supply and Sewerage Board v. A. Rajappa. I am unable to accept the contention of Mr. Ginwalla. Mr. Ginwalla referred to the decision reported in : [1983]1SCR1000 Sanjeev Coke . and submitted that Supreme Court cannot assume jurisdiction on any and every matter. There must be a lis which is pending adjudication before the Supreme Court and the judgment can only have a binding effect if there was such a lis and it is inexpedient for the Supreme Court to delve into problems which do not arise and express opinion thereon. Mr. Ginwalla contended that since the question of clubs did not come for consideration before the Supreme Court the finding in regard to the applicability of the I.D. Act in regard to the clubs has no binding effect at all. Articles 141 and 142 of the Constitution provide that the Judgment of the Supreme Court would have a binding effect throughout the country and the law declared by the Supreme Court is the law of the land. In my opinion it is for the Supreme Court to consider its earlier judgment and the High Court has no jurisdiction to ascribe a judgment of the Supreme Court to be a nullity as has been submitted by Mr. Ginwalla. The two decisions, viz., The Madras Gymkhana Club and the Cricket Club of India have been expressly declared to be no longer good law and reliance thereon in my view does not arise. The High Court is bound by the decisions of the Supreme Court and in that view of the matter the last contention of Mr. Ginwalla also fails.

30. The learned Advocate-General, appearing on behalf of the State, also submitted that High Court should not allow a collateral attack on the jurisdiction of the Tribunal.

31. In that view of the matter, this application fails. The Rule is discharged, all interim orders are vacated. There will, however, be no order as to costs.


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