9911796707
TMI Blog1964 (12) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... sult of import restrictions and other factors. In 1960 and 1961 the Company had to close down three brandies in North India and twelve branches in South India and its establishments in many places became considerably reduced; and in order to reorganise its business, the Company relinquished several agencies in Bombay, Calcutta, Delhi and Madras, So far as Calcutta is concerned the Company relinquished eleven general sales and pharmaceutical and other engineering agencies between 1st August 1.960 and 1st August 1961. It is stated by the Company that in pursuance of its policy to develop manufacturing activities as opposed to General Agency business, it reorganised its business operations us a result whereof the agencies in Calcutta and elsewhere had to be relinquished and this policy was adopted for the sake of convenience and for economic utilisation of the Company's finance in the light of the changing pattern of the Company's business. The eleven agencies which were given up in respect of the Calcutta business were as follows: Date of ralinguishment Name of Agency. 1-8-1960 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wringnee, Calcutta. We have to place before you the following lads for your immediate intervention and necessary action. M/s Parry and Co. Ltd., Calcutta Branch has in its employment about 200 employees inclusive of clerks, sub-staff and labour force excluding the operatives at the Factory. The principal business of the Company is of commercial and mercantile nature. It has a small Workshop at H Book Hide Road, Kidderpore. The manufacturing business can be roughly estimated at 1:11 and the commercial business carried on by the Company by way of holding various agencies of highly reputed companies happens to be the major business of the Calcutta Branch of the Company. It has been a declared policy of the Board of the Directors of the Company to give up the old agencies and to liquidate agency business in its entirety. In this event there is an apprehension of heavy retrenchment of all categories of employees due to the fact that the Company has also declared in the report of the Board of Directors that they would be no longer interested in having any agency heretofore. Under the circumstances the Union Secretary along with some of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the said letter is set out hereunder: Dear Sir, Apprehended Retrenchment. We refer........ ... ...... .,..,. 2. As a matter of policy a decision has been made by our head office in Madras, that the Company should dispose of a number of its agencies and the Principals concerned have been intimated to that effect so that they make their own arrangements in distributing and selling their products. 3. As a result of this decision by our Head Office, some men will unfortunately be surplus to our requirements and it is quite likely that retrenchment of some employees will have to take place in the very near future. In this connection we would confirm that the names of the staff concerned are being referred to our Principals or their incoming representative with the request that as many as possible are absorbed, but you will appreciate that this is a matter where the ultimate decision does not rest with us. 4. You may rest assured, however, that in the event of retrenchment having to take place, we will comply in every respect with the rules and regulation provided to cover the circumstances. Yours faithfully, for Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged that in effecting the said retrenchment the Company followed the procedure prescribed in Section 25(F) of the Act. Subsequently on the 1st September 1961 the Company retrenched five other employees but the retrenchment of these five persons is not the subject matter of the present appeal. By an order of the Government of West fiengal dated the 31st July 1961 made under Section 10 of the Industrial Disputes Act the industrial dispute relating to the retrenchment of the said 52 persons was referred for adjudication to the Second Industrial Tribunal in respect of the following issues: 1. Whether the retrenchment of the workmen named in the attached list (the said 52 persons) mentioned above is justified? 2. To what relief, if any, are they entitled? 11. Written statements were thereafter filed before Sri P.C. Pal, Judge, Second Industrial Tribunal, by the appellant Union and the respondent Company. 12. The case of the Union before the Tribunal in substance was that as a result of agitation by the workmen the Company became vindictive and planned to create a sense of frustration amongst the workmen by releasing a hell of terror by taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o retrench surplus staff as a result of such reorganisation; that the allegations as to parochial considerations were incorrect, irrelevant and irresponsible; that though the surplus number amounted to 66, the Company retrenched only 52; that the question of work load did not arise at all; that the procedure of retrenchment was complied with by ordinarily following the principle of last come first go and the provisions of Section 25(F) and Rule 77 had been only complied with by the Company. 14. At the hearing before the Tribunal evidence both oral and documentary were adduced by both sides and on the 26th March 1962 the Tribunal made its Award. 15. At the hearing before the Tribunal the appellant Union questioned not only the propriety and legality of the retrenchment itself but also the propriety and reasonableness of the alleged reorganisation of business and relinquishment of agencies. The Union contended that there was no good reason for relinquishment of the agencies and the alleged policy of reorganisation had not been proved. The Union also characterised the Company's act as an artificial creation of surplus just to weaken the Union toy taking recou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show this. On behalf of the Company I have been referred' to the Union's letter dated 20-4-61 (Ex. K), written by the then Vice-President of the Union to the Deputy Labour Commissioner of West Bengal in which it is stated that it has been a declared policy of the Board of Directors of the Company to give up the old agencies and to liquidate agency business in its entirety.. If the Company's policy had dated from the time of the aforesaid speech of Sri Srinivasan, a question may be raised why 4 agencies in Calcutta were withdrawn in August 1960, i.e., pretty long before that speech. If, however, it is said that the policy of the Company was actually in contemplation from before the time of the aforesaid speech, still a question may arise as to why, if the Company wanted to reorganise the business by concentrating more on manufacturing, it attempted to sell its Kidderpore factory in or about December 1900. ........... That there was such a proposal for sale of that factory, and some money was received from the intending purchaser, has not been denied............ So this conduct cannot certainly be said to be an indication as to the purpose for doing manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons is very much in question. Even supposing that 66 employees were redundant by reason of relinquishment of 11 agencies in Calcutta, as many as 24 persons could be retrenched in 1960 by taking an average on account of relinquishment of 4 agencies in that year. If the previously mentioned average of 4.73 or 6.5 be taken into account, then also about 18/19 or 26 persons could be retrenched in 1960. But nothing of the sort was done in that year and no retrenchment was effected for about a year or so after the discontinuance of 4 agencies in 1960, except only a case or two, as mentioned in Ex. 2, referred to above. The exact time when the Company felt the necessity of considering 66 persons to be redundant and 56 persons to be retrenched in the first instalment, remains unascertained. 21. Then in dealing with the question of the propriety and justifiability of the retrenchment and the case of the Union that as a result of the retrenchment there has been increase in the work-load of the Company in the Calcutta Branch, the Tribunal has dealt with the evidence of the Manager and commenting on the fact of non-production of the relevant books came to the following conclusion: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. But the thing is that the reason of economy or convenience is not specifically the case of the Company in the present dispute. In a subsequent paragraph the following further observations occur: In the present case though the Company alleges that for the purpose of reorganisation scheme it had to reliquish some of the Calcutta Agencies, there is no tangible instance of any act of reorganisation before or just about the time of the retrenchment in question .......... There; is a great deal of doubt as to the genuineness of purpose behind the Company's move for retrenchment. ...... In my view, the reorganisation scheme has not been sufficiently established inasmuch as, in view of the facts and circumstances taken as a whole, mere reliquishment of a number of agencies would not necessarily prove such a scheme. It is, therefore, difficult for me to accept that a good case for retrenchment has been established by the Company in the present case. 25. Besides the above findings the Tribunal has also found that the provision of the Industrial Disputes Act as contained in Section 25(G) of the Act has not been followed in this case in respect of some o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Golf Club v. The Third Industrial Tribunal West Bengal, 64 Cal WN 186. The learned trial Judge in referring to these decisions has observed that so far as reorganisation of business is concerned the law on the point has been clearly stated in the said two cases and summarised the legal position in the following words; An employer has the right to reorganise his business in any fashion he likes for the purpose of economy or convenience and nobody has the right to question the propriety of such a course. The only limitation to the right of the employer in this respect is that he should try the reorganization bona fide and not with the ulterior object of victimising his employees so as to get rid of their services, which would not otherwise be permissible. If an employer acts within the limits of bona fide exercise of discretion, it is not for the Court or the Tribunal to find fault with the discretion and to condemn the scheme of reorganization.' 29. The learned trial Judge then proceeds to criticise the finding of the Tribunal on this point in the following manner: In the instant case, the Tribunal expressly found that respondent Union did not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt showed impropriety of retrenchment. (vii) Even assuming that some retrenchment was necessary the redundancy of sixty-six persons was questionable. 32. The learned Judge then deals with these reasons one by one in the judgment and expressed his disagreement with these findings. With regard to the first reason the learned Judge observes that: If a company chooses to reorganise its business from selling agency basis to manufacturing basis, it is not to be expected that it must manufacture at each centre of its business. It may concentrate on manufacture at one of its centres and sell its manufactured products at other centres of business. This is what the petitioner company appears to be attempting. I, therefore, do not find any substance in the first ground hereinbefore stated. 33. With regard to the second ground the learned judge has observed that there is no evidence that anybody excepting one Driver was employed in Calcutta after retrenchment and although it might have been that certain temporary hands were employed prior to retrenchment, such newly appointed hands except one Miss Peters were all retrenched on the 1st July 1961. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, the learned Judge after referring to the reasoning of the Tribunal pointed out that there were two infirmities in the line of reasonings of the Tribunal; (1) the tribunal had displayed a spirit of hyper-criticism in coming to that finding and (2) even assuming that there had been some increase in workload as a result of retrenchment, that would not go to show any impropriety with regard to such retrenchment. 36. The learned Judge then deals with the contention of the learned Advocate appearing for the appellant Union that the Court exercising jurisdiction under Article 226 of the Constitution cannot sit in appeal over the findings recorded by a competent Tribunal and cannot revise findings of fact arrived at on evidence and observed: In the instant case, the findings of the Tribunal against reorganisation and against the bona fides of the retrenchment are based on inferences drawn from certain findings of fact arrived at by it. Such inferences are not themselves findings of fact, particularly when the premises do not justify the conclusion. In these circumstances, it is possible for me to differ from the inferential conclusion drawn by the Tribunal and hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though on that opinion, I cannot uphold the Award in all respects, I have already given my reasons therefor. The order of retrenchment may not have been irregular in respect of everybody retrenched. The best course therefore is to set aside the Award and direct the Tribunal to reconsider the matter. The Tribunal shall proceed on the basis that there is necessity for retrenchment in Calcutta but shall see that proper procedure for retrenchment be observed, namely, it shall enforce the 'last come first go' principle in the matter of retrenchment and sustain category wise the retrenchment of the junior most employees only. Any retrenchment of employees made in violation of the principle should be struck down. 42. Then the learned Judge refers to the third ground relating to Section 25(F)(c) and finally records the conclusion that there has been substantial compliance of the procedural requirement so far as the provision of the Industrial Disputes Act is concerned. 43. The principal point which has been urged on behalf of the appellant Union at the hearing of this appeal is mat the Industrial Tribunal having arrived at the conclusion upon consideration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in exercise of its powers under Article 226 of the Constitution will not interfere with the decision or Order of the inferior Tribunal. 46. Similarly, in the case of Kaushalya Debi v. Bachittar Singh it has been laid down that a finding based on no evidence is an error of law apparent on the face of the record but errors in appreciation of documentary evidence or errors in drawing inferences cannot be said to be errors of law and cannot be corrected by a Court exercising jurisdiction under Article 226 of the Constitution. 47. In a recent decision of the Supreme Court reported in Syed Yakoob v. K.S. Radhakrishnan the Supreme Court has followed the three earlier decisions to which I have made reference and has again pointed out that findings of fact reached by an inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ but not an error of fact however grave it may appear to be. A writ of Certiorari cannot issue on the ground that the relevant and material evidence adduced before the Tribunal was insuffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its branches in Delhi and Calcutta. The main business of the Company was selling agency of various cigarette manufacturing concerns. Prior to 1946 in Calcutta the outdoor salesmen who sold cigarettes on behalf of the Company were in the employ of the Company's distributor but m 1946 owing to communal riots this method of distribution and sale was changed and the Company took the outdoor salesmen in its direct employment in order to organise them on communal basis. In 1954 the Company came to the conclusion that it was not practicable from business point of view to continue any longer its own outdoor Sales Department and so the Company decided to close down the Department and to retrench the outdoor salesmen and to operate through the distributors. Pursuant to this decision the system of employing outdoor salesmen was terminated in Bombay and Delhi in 1954. Company realised that the sales were dropping and the reorganisation of its business had become necessary as a measure of economy. For the sake of convenience, however, the reorganisation was brought into force by stages in different places from time to time. The scheme was implemented by the Company last o all in Calcutta b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny legal evidence and was wholly inconsistent with the material produced on the record and in other words it was a perverse finding, it was open to the Supreme Court to scrutinise the propriety of the finding and to set it aside if the finding was not justified. Accordingly the Supreme Court went into merits of the finding and found that the Labour Court was under a complete misconception about the appellant's case in regard to reorganisation of its business. In the Award it was specifically stated that the new system was adopted only in Calcutta and was nothing but a colourable device to throw off the 14 workmen. The Supreme Court found that this assumption was wholly inconsistent with the evidence in the case and it ran counter to what might reasonably bo regarded as matter of common ground between the parties. Appellant Company's-Director Mr. Phillippou had given reasons why the appellant adopted this reorganisation and also produced documents in support of his statement that the new scheme had been introduced by stages in all other places where the appellant Company had its branches. This evidence was not at all controverted by the respondent Union. Notwithstanding this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderations and consequently the retrenchment was not bona fide. The Tribunal has also very fairly and impartially recorded the finding that the Union has failed to make out a case of victimisation but it was of the view that the probability that the Union activities would be weakened by largo scale retrenchment could not be ignored or overlooked. It is moreover difficult for us to come to the conclusion that these findings are not supported by any evidence. 53. The other case on which reliance was placed is a decision of this Court reported in 64 Cal WM 186. In this case the facts were that Royal Calcutta Golf Club which maintained a Golf Course and other facilities for playing Golf in the suburbs of Calcutta had a permanent staff more than 100 persons and prior to 14th January 1957 the Club used to employ 8 female labourers whose work consisted principally of removing leaves, weeding greens etc. Since 1948 the Club had been contemplating the abolition of the said system of employing female labourers and the reasons why it wanted to do so appeared from the evidence adduced in the case. As in 1957 these 8 female labourers were discharged, an industrial dispute was raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the learned Judge in this case also recognised the proposition that the question whether the reorganisation is bona fide or not can be enquired into by an Industrial Tribunal. It is also to be noted that the question of jurisdiction under Article 226 was neither raised before Sinha, J. nor was this aspect considered by the learned Judge. I have already pointed out that Macropolo's case was decided under Article 136 of the Constitution under which the jurisdiction is undoubtedly much wider than that under Article 226 of the Constitution. The Supreme Court found in that case that the finding of the Tribunal was perverse and so set aside the finding. 55. In the case of Western India Automobile Association v. Industrial Tribunal, Bombay it has been pointed out by the Federal Court that the Industrial Disputes Act vests jurisdiction of widest amplitude in the Industrial Tribunal or Labour Court. In holding that reinstatement of discharged employees is a relief which is within the power of Industrial Tribunal to grant, it was observed that if reinstatement could not be brought about by Industrial adjudication, it would in many cases be difficult, if not impossible, to res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on record, it does not necessarily lead to the conclusion that the Tribunal was partial or biased or that the findings are perverse. The Tribunal has given reasons in great detail and it may be that in certain matters the line of reasoning is not very cogent or logical or the Tribunal may have made observations and offered criticism which the Tribunal might not properly have made. But that is far from saying that the findings are arbitrary or perverse or are actuated by bias. A perverse finding is not only against the weight of evidence but is altogether against the evidence itself. A wrong finding is not necessarily a perverse finding. A finding cannot be said to be perverse merely because it is possible to take a different view on the evidence. The Tribunal has found upon consideration of the evidence in this case that the retrenchment was not bona fide and it was actuated by parochial considerations and the Tribunal has given reasons for coming to the conclusion. It may be that this finding is a wrong one but it cannot be said that it is a finding which is based on no evidence or is a perverse finding. 59. It was also argued on behalf of the respondent Company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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