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TMI Blog1957 (10) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... a, are the Managing Agents of the Company. Originally, the case out of which Civil Appeals 44 and 45 have arisen was known as the case of 144 workmen, and the other case out of which Civil Appeals 336 and 337 have arisen was known as the case of 74 workmen. At present, the number of workmen involved in the four appeals is much smaller. Civil Appeals 44 and 45 go together as they arise out of the same decision, Civil Appeal 44 being on behalf of the Company in respect now of 104 respondent workmen, and Civil Appeal 45 on behalf of 103 out of the said 104 workmen. Similarly, Civil Appeals 336 and 337 go together and arise out of a common decision, Civil Appeal 336 being on behalf of the Company in respect of 10 workmen in three groups and Civil Appeal No. 337 on behalf of 31 workmen. The facts of these two sets of appeals are somewhat different, and it will be conducive to convenience as also to clarity of discussion of the issues involved, if the two sets are dealt with separately. We take up first Civil Appeals 44 and 45. With regard to these appeals the relevant facts are these. In 1947 the Asansol Indian Iron and Steel Workers Union with one Prof.' Abdul Bari as President was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued certain notices to the workmen advising them of the consequences of their action. The workers in their turn elected a committee of six men to press their demands; the Company, however, refused to negotiate with this committee. The impasse continued and in March, 1953, there was a tripartite conference between the Labour Commissioner of the Government of West Bengal, the General Manager of the Company and the President of the Union. Before this, the Company had issued a notice closing 'B' and 'C' shifts of the Hot Mills section. The tripartite conference came to certain conclusions but failed to restore harmony, and one of the reasons for its failure was that the representatives of the workers of the Hot Mills section were not included therein. The workers' committee protested against the closing of two shifts, and the trouble continued till April 8, 1953, when the Company issued a notice to the workmen that unless they voluntarily recorded their willingness to do normal work, they would be considered as no longer employed by the Company from 2 p.m. on April 10, 1953. It was stated that on April 11, 1953, some 700 workers resorted to an illegal stoppage of work. The Labour Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember, 1953, and 10 p.m. on Saturday' the 19th September, 1953, on their regular shift. If, however, any worker in the vicinity of the Works is unable to resume duty on account of illness, he should report himself to the Company's Medical authorities or if unable personally to attend, send written intimation of his sickness to the Company by Saturday, the 19th September, 1953. In the latter case the Company will make arrangements for his medical examination. Such worker should resume duty from the date he is declared fit by the Company's Medical authorities. Any worker who has left the vicinity of the Works may resume duty on or before Thursday, the 24th September, 1953, provided he produces evidence-satisfactory to the Company of his absence." On September 23, 1953, the Company issued a third notice, which quoted a request received from the President of the Asansol Iron and Steel Workers' Union for extension of the time given to the workmen to resume work, and then concluded as follows: "The Company is pleased to accede to this request to the extent of one week's extension and its notice No. GM/CS- 3B/571 dated 17-9-53 may be considered amended accordingly, i.e., the extensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively. According to him, the continued illegal stoppages of work, 'slow-down' tactics and strikes indulged in by the workmen despite the advice of their Union, left the Company no alternative but to discharge the workmen, except in some essential departments, with effect from August 24, 1953, and the notice dated August 23, 1953, though it stated that the Company declared a lock-out of the entire Works except for some special shifts, really terminated the services of the respondents by discharging them with effect from August 24, 1953. He has further submitted that the notice dated September 17, 1953, did not revoke the earlier order of discharge, but merely gave the respondents an opportunity of reemployment at the pleasure of the Company on fulfilment of certain conditions. The learned Attorney-General contends that if the notices are so construed, then the Tribunals below are wrong in holding that the respondents are entitled to be taken back in employment as of right. He has further submitted that the Fifth Industrial Tribunal was wrong in law in holding that there could not be a lock-out and discharge at the same time. In our view, the two notices in question are not capab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stopped on account of the 86 look-out. The third notice dated September 23, 1953, which extended the date of joining to October 2, 1953, again said that " a large number of workers might have been prevented from resuming their work for reasons beyond their control " and gave that as the reason for extending the date. If the three notices referred to above are read together against the background of events which bad happened prior to August 23, 1953, the only reasonable construction is the one adopted by the Tribunals, viz., that the employees whose employment had been refused during the lockout were 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. The learned Attorney-General has referred us to some oral and documentary evidence to show that the workmen themselves understood the notice dated August 23, 1953, as a notice of discharge. He has referred particularly to the letter dated September 2, 1953, written by the Action Committee to the General Manager of the Company in which the notice dated August 23, 1953, was referred to as " an illegal and unconstitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whatever happened during the interview has been put in writing." The writing which embodied the result of the interview was not, however, produced. The same witness said that some workmen who were also subsequently interviewed were taken back without any explanation of their absence. The evidence on this point is very Conflicting; one witness said that about 2,000 men came to the main gate of the Company on October 1, 1953, and October 2, 1953, and from October 2, 1953, the instruction of the company was " to take back only those who were not harmful to the running of the factory". Another witness said that he did not remember if any of the respondent workmen appeared before him on October 1, 1953, or October 2, 1953, and if any of them gave any reasons for their absence. In view of the conflicting evidence on the point, it is not possible to proceed on the footing that the respondent workmen failed to produce satisfactory evidence of their absence, and that was the reason why they were not taken back by the Company. The learned Attorney General drew our pointed attention to the evidence of Shri Promotho Nath Mukherji, witness No. 9 for the workmen, who said: "When the lock-out w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the prayer is for payment of full compensation, it is sufficient to state that no question of principle is involved. The Fifth Industrial Tribunal refused to give compensation, for the period anterior to October 2, 1953, on the. ground that the workmen themselves tried to coerce the Company by 'slowdown' tactics etc.; for the period after October 2,'1953, the Tribunal allowed half the wage as compensation on the ground that some of the workmen were near Burnpur and might have joined earlier, some claimed to come back to their services as of right without any explanations and none of the workmen had done any actual work for the period. As we have said, no question of principle is involved and we do not think that the Tribunal has committed any error in the matter of awarding compensation. Civil Appeals 336 and 337. We now turn to the other two appeals. We have stated that the case out of which these two appeals have arisen dealt initially with 74 workmen who had been discharged or suspended by the Company for" one reason or another.' The question which was referred to the Fifth Industrial Tribunal was whether the discharge and/or suspension of these 74 workmen was justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve days. Standing Order No. 9 of the Company, which is the relevant Standing Order on the subject, is in these terms: " Absenteeism--Workers absent without leave will be subject to disciplinary action. Overstaying leave will be considered as absence without leave. Any worker who is absent for 14 consecutive days without permission will be automatically discharged. Also, any worker who is absent for 14 individual days during any period of 12 months is liable to discharge." What happened in the case of these men is that on diverse dates between July 5, 1953, and July 10, 1953, they were taken in custody by the police and remained in custody for some time; they applied for leave when in custody but leave was refused. The Industrial Tribunal took the view that Standing Order No. 9 was not an inflexible rule, and a mere application for leave was sufficient to arrest the operation of the Standing Order. When the case was before the Appellate Tribunal, Mr. S. K. Acharya on behalf of the workmen conceded that he was not in a position to support the view of the Fifth Industrial Tribunal in this respect; he contended, however, that the Industrial Tribunal had in each case considered the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get rid of them on the ostensible pretext of continued absence, the position will be different. It will-then be a colourable or mala fide exercise of power under the relevant Standing Order; that, however, is not the case here. We, are of the view that the two Tribunals below have misdirected themselves as to the true scope and effect of the "Standing Order in question, and their decision-with regard to the seven workmen mentioned above cannot be supported. We now turn to the two persons in the second category Samar Sen and Abharani Debi, remembering what we have already stated as to the exercise of our jurisdiction on an appeal by special leave. Samar Sen worked as the Manager of the Burnpur hotel, and one of the questions raised was if he was a 'workman' within the meaning of the relevant provisions of the Industrial Disputes Act, 1947. At the relevant time, 'workman' was defined in the Act as follows: " Section 2(s). " workman " means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed against him, and order his reinstatement. I grant him compensation at half basic pay for the period of his forced unemployment." The finding really amounts to this that Samar Sen was victimised as he was the Secretary of the Action Committee; he was really ill and the only fault he committed was that he did not consult the Company's doctor. The learned Attorney-General has very seriously contested the aforesaid finding of the Tribunal and taken us through the relevant evidence including Samar Sen's own statements before the Enquiry Committee. He has pointed out that though Samar Sen was said to be suffering from fever and blood-pressure, his statements before the Enquiry Committee showed that he was not taking complete rest as " advised by his doctor but was engaged in doing some " public work." The argument advanced by the learned Attorney-General might have been urged acceptably to a Court or Tribunal of first instance; but we are not such a Court or Tribunal, and in the absence of exceptional or special circumstances or of grave injustice, we shall not be justified in interfering with what really is a finding of fact. This brings us to the case of Abharani Debi, where also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure Code, in which Chattoraj was mentioned. In September, 1953, the dispute was referred to the Fifth Industrial Tribunal, which included the case of Chattoraj-there being a suspension order against him. It was stated that an application under s. 33 of the Industrial Disputes Act, 1947, was made for permission to dismiss Chattoraj for activities subsequent to the charge-sheet of March 28, 1953. The Tribunal instead of dealing with that application made the following observations in its award regarding Himansu Chattoraj: " He was, therefore, charged on the 28th March, 1953, along with others. There was an enquiry. But as the evidence against this man was not overwhelming, the management postponed their decision for the time being. This man, however, continued his activities with the result that the Sub-divisional Officer of Asansol promulgated an order under section 144, Cr. P.C., on the 15th May, 1953, and in which order his name was mentioned. This workman was again obstructing the loyal workers after the lock-out had been lifted. So in view of the above, the Companies decided to terminate his services. But it could not take any direct action as his case was referred to the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Tribunals below committed any error with regard to the appellants of this appeal. He has pressed the case of two persons Akka Hossain and D. P. Das. Against Akka Hossain there was a charge for slow-down tactics; later he was charged with assaulting the Company's driver. Though he was acquitted in a criminal proceeding, the Tribunal found that the decision of the Company to terminate his services was justified. D. P. Das absented himself from duty from July 5, 1953, and was absent without leave for more than 14 days. His case was fully considered by the Tribunal, which found that his services were rightly terminated under the Standing Orders of the Company. The result of the foregoing discussion is this: Civil Appeal 44, Civil Appeal 45 and Civil Appeal 337 are without merit and must be dismissed. Civil Appeal 336 succeeds in part, and the decision of the Tribunals below is set aside in respect of the following eight men, only- (1) Bamapada Mukherji (2) Chandrasekhar Mukherji (3) Niaz Hossain, (4)Dhani Ram, (5) Chandrabhan Sing, (6) Raja Sing, (7) Jai Kishore Sing, and (8) Himansu Chattoraj. In all other respects, the decision appealed from will stand. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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