TMI Blog1957 (10) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... nity of reemployment at the pleasure of the company on fulfilment of certain conditions - Held, that, on a construction of the notices, the expression "shall be deemed to be discharged" had to be read in the context of the declaration of a lock-out, and the intention of the company was that the employees whose employment bad been refused during the period of lock-out were to be permitted to resume work without any conditions if they reported for duty by a particular date, and on fulfilment of a condition if they reported for duty after that date. Where some of the workmen who were taken in custody by the police applied for leave when in custody but were refused leave by the company acting under Standing Order No. o, and the Labour Appellate Tribunal took the view that as the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14 workmen were in custody the company was not justified in refusing leave, held, that whether in such circumstances leave should be granted or not must be left to the discretion of the employer, unless, it was proved, that it was a case of colourable or mala fide exercise of power under the Standing Order. - Civil Appeal Nos. 44,45, 336, and 337 of 1957. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as alleged on behalf of the Company that on September 12, 1951, a procedure was established for an amicable settlement of such disputes as might arise between the Company and its employees. The procedure was substantially this: in case of a dispute regarding an individual employee, the dispute would be referred first to the Shop-in-charge and then to a Works Committee, and the Union would discourage an individual approach to the management of the Company; if the Works Committee was able to effect a settlement, it would be final; but if it failed, the Union could take up the case on merits, with the management of the Company. The above procedure, it is stated, was accepted at a joint meeting of the Works Committee held on November 13, 195 1. Then we come to 1953. The case of the company was that on January 18, 1953, certain workers of the, Hot Mills section resorted to an illegal stoppage of work, and on the next day all the three shifts of the Hot Mills section commenced a slow down strike. This adversely affected the production of the Company, and it addressed a letter to the Secretary of the Union on January 27, 1953, drawing the attention of the Union to the illegal stoppage o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orkmen. There was a strike on April 27, 1953. The Sub-Divisional Magistrate, Asansol, promulgated an order under s. 144 of the Code of Criminal Procedure and the situation continued to worsen. Iron and Steel were declared to be essential to the life of the community under the provisions of the West Bengal Security Act, 1950, and leave to all employees was stopped by the Company. Some 38 workers of different departments were discharged for alleged disobedience of orders, and on August 18,1953, the Action Committee gave a strike notice to the Company, stating that the workmen would resort to strike and abstain from duty from September 11, 1953. We now come to the crucial date, August 23, 1953. On this date the Company declared a lock-out and issued a notice, which must be set out in full, because a good part of the argument of learned counsel for both parties has centred round this notice : " NOTICE. Having regard to the continued existence of the go. slow strike and the unsatisfactory working of the Plant and in consequence of the illegal strike which took place on- (1) 18-1-53. (2) 9-3-53. (3) 11-4-53 to 20-4-53. (4) 27-4-53 and 28-4-53. (5) 15-7-53. the Managemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not, however, allowed by the Company to resume their duties. This led to an industrial dispute which the Government of West Bengal referred to the Fifth Industrial Tribunal. The two issues were- (1) whether the Company was justified in keeping the workmen mentioned in three lists A, B C, out of employment; and (2) whether the said workmen were entitled to employment and any other relief and/or compensation. The Tribunal held that all the workmen who turned up on or before October 2, 1953, in pursuance of the notices issued by the Company were entitled to be taken back into employment without condition and of the two men who came later, one was ill of typhoid fever and had sufficient reason for reporting himself for duty on October 9, 1953. On the second issue, the Tribunal said: " Accordingly, I award that these men, barring Shri Satyanarayan, No. 5 of the list C, attached to the order of reference, would get half salary for the entire period from the 2nd October, 1953, up to the date of their actual return to duties after this award. I allow only half basic pay and no dearness allowance and no other allowance." From the decision of the Fifth Industrial Tribunal, tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge and lock-out in respect of the same employees. The question of construction is really a question of intention-to be gathered primarily from the words used in the documents; and if the word-. used are ambiguous, then surrounding circumstances can be looked into for the purpose of construing the notices. It is worthy of note that the first notice states inter alia that in consequence of the illegal strikes which took place on several previous dates, the Management has no option but to declare a look-out of the entire Works except some special shifts with effect from Monday, August 24, 1953; then in the concluding portion the notice states-" The services of all other workers shall be deemed to be discharged with effect from Monday, August 24, 1953. The expression " shall be deemed to be discharged has to be read in the context of the declaration of a lock-out; such an expression is neither usually employed nor apt to effectuate an intention to terminate the services of the workmen altogether. A lockout , according to the definition in the Industrial Disputes Act, 1947, means the " closing of a place of employment, or the suspension of work, or the refusal by an employer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge was recorded in the service book of the employees, as required by the rules; nor any notice of one month given for discharging the workmen; but on the contrary the workmen were given continuity of service for the entire period of their absence. We do not, however, think that when the words used in the notices sufficiently and clearly bring out the intention of the Company, it is necessary to refer to other evidence in the record. Moreover, this Court does not sit as a regular Court of appeal over Industrial Tribunals, and does not ordinarily subject the evidence given on behalf of the parties to a fresh review and scrutiny, unless it is shown that exceptional or special circumstances exist, or that substantial and grave injustice has been done or that the case in question presents features of sufficient gravity to warrant a review of the decision appealed from. It is necessary now to consider an alternative argument of the learned Attorney-General. He has contended that assuming that the notices bear the construction which we have put on them, the respondent workmen did not join on or before Saturday, September 19, 1953,--the latest day by which they could resume work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the above circumstances restrained me from joining." It may be that some of the workmen could have presented themselves earlier than they actually did, But that does not prove that the Company refused to take only those workmen who had failed to produce satisfactory evidence of their absence. If that was the case of the Company, then it should have produced the writing which embodied the result of the interview or given sufficient evidence to establish that in each case the respondent workmen failed to produce satisfactory evidence of absence. On the contrary, the Tribunal found that the Company scrutinised the conduct of the workmen to find out how far they were associated with the Action Committee, how far they took part in the meetings, etc., and on that basis, some workmen were taken back and some were not taken back. It is somewhat late in the day to try to make out a case that each of the respondent workmen in these two appeals failed to produce satisfactory evidence of their absence. For these reasons, we do not think that the appellant Company in Civil Appeal 44 has made out any case for our interference with the decision appealed from. There was some argument before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, for absence without permission for 14 consecutive days; (2) those who were dismissed for major misdemeanor; (3) those who were suspended but whose cases could not be disposed of finally; and (4) those who were dismissed for disobedience of orders and other activities in pursuance of a concerted plan of "go-slow" strike. The Tribunal considered the case of each workman under the four categories mentioned above and ordered reinstatement of 25 out of 74 workmen and granted to 24 of the workmen directed to be reinstated compensation equal to half basic pay for the period of forced unemployment. From the decision of the Fifth Industrial Tribunal two appeals were taken to the Labour Appellate Tribunal, Calcutta,-one on behalf of the Company and the other for the workmen. The Labour Appellate Tribunal dismissed both the appeals. Hence the two appeals before us by special leave. In Civil Appeal 336 we are concerned with only 10 workmen, seven of whom fall in the category of those whose services were terminated in accordance with Standing Orders of the Company for absence without permission for 14 consecutive days. These seven men are- (1) Bamapado Mukherji, (2) Chandrasekhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with the Labour Appellate Tribunal. The point is now covered by a decision of this Court: Burn and Co., Calcutta v. Their Employees [1956] S.C.R. 781, 798. in that case one Ashimananda Bannerji was arrested tinder the West Bengal Security Act and detained in jail from January 25, 1949, to April 5, 1949. The Company terminated his services on April 22, 1949, on the ground of continued absence. The Appellate Tribunal Ordered his reinstatement on the ground that he had been discharged without a charge and without holding an enquiry. This Court observed: "We are unable to agree with this decision. The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside." The same principle should apply in the present case. It is true that the arrested men were not in a position to come to their work, because they had been arrested by the police. This may be unfortunate for them; but it would be unjust to hold that in such, ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any clerical work for hire or his duties were merely supervisory in nature. Both the Tribunals have referred to the evidence on this point and have concurrently found that Samar Sen was a workman within the meaning of that word as used in the Industrial Disputes Act, 1947; they have referred to Samar Sen s own evidence which showed that he had to write ledgers, file correspondence, enter the cash book, etc. We see no reason to hold that the finding of the two Tribunals on this point is erroneous. On merits, the case against Samar Sen was that as a result of a regular and proper enquiry, he was found guilty of unauthorised absence and insubordination, etc., and, therefore, the Company dismissed him. The argument before us is that the Company having held a regular and proper enquiry in which Samar Sen had an opportunity of meeting the charges against him, it was for the Company to decide whether the charges had been proved and the Industrial Tribunal should not have interfered with the decision of the Company, unless it found that the decision was mala fide or amounted to victimisation. It is necessary to state here, in the words of the Fifth Industrial Tribunal, its finding about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, not to attend his duties on the morning of September 5, 1953. An enquiry was held and she was found guilty of the charge. The Tribunal found that the charge against her was completely baseless, and the enquiry report against her made a mountain of a mole-hill. She made some comments to Karu with regard to a pass which had been issued to Karu, and the comments innocuous in themselves were magnified into a charge of intimidation. It is significant that before the Labour Appellate Tribunal, the Company did not even argue the case of Abharani. Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities there is no charge-sheet. In such circumstances I do not think that the Companies were entitled to dismiss him. So regard being had to this aspect of the matter, I order his reinstatement. But as I am satisfied that. this man indulged in activities which were prejudicial to the interest of the Companies, I do not allow him any compensation during the period of his forced unemployment consequent upon suspension. This period of unemployment should be treated as leave without pay. He must be reinstated as soon as the award becomes operative." The Appellate Tribunal dealt with the case of this man very summarily by saying that his reinstatement was not open to any objection. Before us, it has been argued that the decision that Himansu Chattoraj should be reinstated is vitiated by a basic error. The only formal order against him was the order of suspension, which was certainly a valid order. The Industrial Tribunal found that Chattoraj indulged in activities prejudicial to the Company and it is now recognised that deliberate slow-down tactics and an incitement to other workmen to adopt such tactics both amount to misconduct. The lower Tribunal was apparently satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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