Shalimar Paints Limited vs First Industrial Tribunal

Jayanta Kumar Biswas, J.—The petitioner in this article 226 petition dated August 26, 2008 is questioning an award of the First Industrial Tribunal, West Bengal dated April 25, 2008 (at p. 484) in Case No. VIII-336/87 registered on the basis of an order of reference dated October 30, 1987 (at p. 36) made by the Government of West Bengal in exercise of power conferred by section 10 of the Industrial Disputes Act, 1947. Services of the second and third respondents (Sushil Kumar Ray and Jyotirmoy Polley) were terminated by the petitioner by two letters both dated June 2, 1986 (at pp. 31 & 33). Feeling aggrieved, the Union concerned raised an industrial dispute questioning validity of both the terminations. The dispute culminated in the order of reference.

The issues referred to the Tribunal were as follows:

Whether the termination of services of Shri S.K. Roy and Shri J. Polley with effect from 3.6.86 is justified?

To what relief the workmen are entitled?

The Tribunal held that services of Roy and Polley were terminated in contravention of the provisions of section 25F of the Industrial Disputes Act, 1947, and that they would be entitled to get back wages; but that since after termination Shalimar did not get their services, "it would be convenient for both the parties if 40% back wages was awarded." Accordingly, the Tribunal awarded 40% back wages to both Roy and Polley.

The union representing Roy and Polley filed written statement (at pp. 37-58) stating why Roy and Polley were entitled to be treated as workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947; and Shalimar filed its written statement (at pp. 81-123) stating why Roy and Polley were not entitled to be treated as workmen.

While case of Roy and Polley was that the terminations contravened the provision of section 25F of the Industrial Disputes Act, 1947, Shalimar''s case was that since Roy and Polley were not workmen, there was no question of complying with the provision of section 25F.

The preliminary question whether Roy and Polley were workmen was decided with the merits of the case, and in the process the Tribunal took down evidence of Roy (WW 1), Polley (WW 2), one Shankar Nath Chatterjee (CW 1) and one Swapan Kumar Chattapadhyay (CW 2).

In his examination-in-chief, regarding the nature of his duties Roy said as follows:

My job was to test the finished products and intermediate products of our company. It was not possible for a layman to do the said job. After the testing job is done I was keeping the samples. I was also recording the datas and reports of testing in the Laboratory Register. Further I was testing the returned products and other old paints for various purposes. I never performed any managerial or supervisory or administrative work. There was no person under me for assisting my job. I was not authorised to take any disciplinary action. I was submitting my reports to Mr. D.C. Mukherjee, Assistant Technical Manager, Quality Control who was the Incharge of our section. He used to submit report to Technical Manager, Technical Manager used to report to the General Manager Project and Resin Development. General Manager used to report to the Vice-President. I used to submit my leave application before the Works Manager. I had no authority to recommend in favour of any person and to appoint any person. I had no authority to transfer any employee. As Assistant after testing the materials I used to issue Internal Certificates also.

In his further examination-in-chief, regarding the nature of his duties, Roy said as follows:

I never visited outside party on behalf of the company. During my total tenure of service I have never attended any work of the company outside the factory premises. Under special instruction I had submitted report after inspection of the materials in some cases but I had no authority for submission of such report. For the last 5 years I was attached to Quality Control Department. I have served under the company for total 18 years. I have signed less than 20 production batch cards. No non-technical person can sign in such card. If after examination it is found that the material is as per the manual of the company then one can pass such card. I had no authority to grant leave. I had no authority to sanction overtime.

In his examination-in-chief, regarding the nature of his duties, Polley said as follows:

I used to check up numerical totals of the Goods despatched. I was preparing the recapitulation statements of despatch. I was maintaining the R.C. 1 Book. In that Register total figure of production, total figure of clearance and balance were being mentioned. I was preparing the indents of the goods to be despatched. I was preparing the Sundry Sales challans. I never performed managerial or supervisory nature of duty. I was not taking independent decisions. I had no power to recommend or forward of any matter and the power of taking disciplinary action against any person. No person was working under me and no person was accountable to me. I used to report about my performance to the Senior Assistant Mr. Ashok Kumar Ganguly.

Roy and Polley both were cross-examined. None of them was cross-examined with respect to the above-noted evidence they gave in proof of the nature of their respective duties. Their above-noted evidence regarding the nature of their respective duties remained absolutely uncontroverted. Shalimar''s case stated in its written statement was not put to them during their cross-examination.

Mr. Bhanja Chowdhury appearing for Shalimar, has submitted as follows:

Positive evidence given by Shalimar to show why Roy and Polley were not workmen was ignored by the Tribunal that discarded substantial part of the evidence given by Shalimar''s two witnesses applying negative test. The situation created by the evidence of Roy and Polley concerning nature of their respective duties was clarified by the two witnesses examined by Shalimar, but ignoring their evidence the Tribunal accepted evidence of Roy and Polley.

He has relied on the decisions in All India Reserve Bank Employees Association Vs. Reserve Bank of India, ; Management of May and Baker (India) Ltd. Vs. Their Workmen, The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, ; Vimal Kumar Jain Vs. Labour Court, Kanpur and another, National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and Others, Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and Others, ; T.P. Srivastava Vs. National Tobacco Co. of India Limited, ; H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc., Food Corporation of India Workers Union Vs. Food Corporation of India and another, M.H. Devendrappa Vs. The Karnataka State Small Industries Development Corporation, The Union Carbide (India) Ltd. Vs. Ramesh Kumbla and others, ; Bharat Bhawan Trust Vs. Bharat Bhawan Artists Association and Another, ; Mukesh K. Tripathi Vs. Sr. Divisional Manager, L.I.C. and Others, ; Tata Sons Ltd. Vs. S. Bandyopadhyay through New Delhi General Mazdoor Union and S.K. Sarvaryia, Presiding Officer, Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, Subir Guha Thakurta Vs. Johnson and Johnson Ltd. and Others, ; The Hongkong and Shanghai Banking Corporation Ltd. Vs. The Central Government Industrial Tribunal and Others, C. Gupta vs. Glaxo Smith Kline Pharmaceutical Ltd., (2007) 2 CLR 836; The Managing Director, Hassan Co-operative Milk Producer''s Society Union Limited Vs. The Assistant Regional Director Employees State Insurance Corporation,

Mr. Dutta appearing for Roy and Polley has submitted as follows. The Tribunal relying on the uncontroverted evidence of Roy and Policy and rejecting the uncorroborated evidence of the two witnesses examined by Shalimar has not committed any wrong. It is absolutely wrong to suggest that the Tribunal pointing out why the uncorroborated evidence of Shalimar''s witnesses was not acceptable applied any negative test while determining the question whether Roy and Polley were workmen. As to merits, admittedly services of Roy and Polley were terminated without complying with the provision of S. 25F. On the grounds that after termination Shalimar did not get services from Roy and Polley the Tribunal could not refuse to give them full back wages.

He has relied on the decisions in A.E.G. Carapiet Vs. A.Y. Derderian, Lloyds Bank Ltd., New Delhi Vs. Panna Lal Gupta and Others, ; Syed Yakoob Vs. K.S. Radhakrishnan and Others, ; All India Reserve Bank Employees Association Vs. Reserve Bank of India, ; Ananda Bazar Patrika (P) Ltd. Vs. Its Workmen, ; Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, P. Kasilingam Vs. P.S.G. College of Technology, Titaghur Paper Mills Co. Ltd. Vs. First Industrial Tribunal and Others, Rallis India Ltd. Vs. State of West Bengal and Others, ; Sadhu Ram Vs. Delhi Transport Corporation, Ved Prakash Gupta vs. Messrs Delton Cable India (P) Ltd., 1984 (2) LLJ 546 ; Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd. Bombay, Guest Keen Williams Ltd. Vs. Assistant Labour Commissioner and Others, ; National Engineering Industries Ltd. Vs. Shri Kishan Bhageria and Others, Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Others, ; Bombay Dyeing and Manufacturing Company Ltd. Vs. R.A. Bidoo and another, ; D.K. Yadav Vs. J.M.A. Industries Ltd., ; Smt. Sunita Gupta Vs. Sanjeeb Nandan, ; Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers'' Union and Another, ; Ranjeet Singh Vs. Ravi Prakash, ; Anand Regional Co-op. Oil Seedsgrowers Union Ltd. Vs. Shaileshkumar Harshadbhai Shah, ; Eastern Coalfields Ltd. vs. Union of India & Ors., 2009 (4) CHN 394; Sulka Devi & Anr. vs. Hridaya Narayan Singh, 2010 (3) CHN 58; Union of India (UOI) and Others Vs. Mahaveer C. Singhvi, ;

The first question that has arisen for decision in the case is whether there is any reason to interfere with the findings of the Tribunal that both Roy and Polley were workmen within the meaning of s. 2(s) of the Industrial Disputes Act, 1947.

Whether Roy and Polley were workmen was a question that was to be decided on the basis of evidence showing actually what work they were doing.

Roy was appointed by a letter dated January 31, 1968 (at p. 25) as an Assistant. In the appointment letter the nature of his duties was not mentioned. Polley was appointed by a letter dated August 22, 1977 (at p. 29) as an Assistant in the Supervisory Grade. In his appointment letter also the nature of his duties was not mentioned. Roy''s services were terminated by a letter dated June 2, 1986 (at p. 31). In the letter he was described as a "Supervisory Staff" receiving a monthly salary of Rs. 2,638. Polley''s services were terminated by a letter also dated June 2, 1986 (at p. 33). In the letter he was described as a "Supervisory Staff" receiving a monthly salary of Rs. 1,695. The appointment letters and the termination letters were admitted into evidence.

It is evident from the appointment letters and the letters terminating services of Roy and Polley that they do not give an idea what was the dominant nature of the duties Roy and Polley were discharging at the date of termination of their services. Their services were terminated alleging loss of confidence without holding any inquiry. Hence it is important to see what evidence was given by Roy and Polley in proof of their case that they were workmen within the meaning of s. 2(s) and how Shalimar reacted to such evidence.

The relevant parts of the evidence adduced by Roy and Polley in proof of their case that they were workmen have been quoted hereinbefore. The evidence does not show that Roy and Polley were employed in Shalimar mainly in managerial or administrative capacity, or that, being employed in supervisory capacity, they were drawing wages exceeding the amount mentioned in section 2(s) of the Industrial Disputes Act, 1947. It was not Shalimar''s case that Roy and Polley were employed mainly in managerial and administrative capacity. It was Shalimar''s case that they both were employed in supervisory capacity.

The appointment letters admitted into evidence by the Tribunal do not show that Roy and Polley were employed in Shalimar in supervisory capacity. The nature of the duties they were performing do not suggest that they were working in supervisory capacity. Their evidence has remained absolutely uncontroverted, for they were not cross-examined with respect to their evidence concerning the nature of their duties. Shalimar''s case stated in its written statement was not put to them during their cross-examination.

The two witnesses examined by Shalimar gave oral evidence to prove that Roy and Polley were employed in supervisory capacity. They, presumably, deposing on the basis of the records did not produce any record in support of their oral evidence. The Tribunal pointed out this deficiency and decided not to rely on their uncorroborated evidence. It preferred to rely on the uncontroverted evidence of Roy and Polley, and concluded that the evidence was sufficient to lead to a conclusion that Roy and Polley both were workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947.

I am unable to accept the argument that evidence given by the two witnesses examined by Shalimar has been wrongfully rejected. The Tribunal was empowered to appreciate the evidence and in the process not to rely on the uncorroborated evidence of the two witnesses, especially in the face of the uncontroverted direct evidence of Roy and Polley.

It is wrong to say that by pointing out why evidence of the two witnesses examined by Shalimar was not acceptable the Tribunal has actually discarded their evidence by applying negative tests. The witnesses not giving direct evidence and claiming that Roy and Polley were authorised to do some work could not produce any authority in support of their claims. It cannot be said that by pointing out this fatal deficiency in their evidence the Tribunal has actually discarded their evidence by applying negative tests.

There was no scope for the two witnesses examined by Shalimar to clarify the situation created by the evidence adduced by Roy and Polley, for the two witnesses examined by Shalimar could clarify the situation only if Roy and Polley had been cross-examined with respect evidence they gave in proof of the nature of their duties and case of Shalimar stated in its written statement had been suggested to them.

Without cross-examining Roy and Polley with respect to evidence they gave in proof of the nature of their duties, the two witnesses examined by Shalimar could not be asked to give evidence in clarification of the situation created by the evidence of Roy and Polley. Without suggesting Shalimar''s case stated in its written statement to Roy and Polley, when they were being cross-examined, the two witnesses examined by Shalimar could not be asked to give evidence in proof of the case.

I am, therefore, of the view that the Tribunal preferring to rely on the uncontroverted evidence of Roy and Polley did not commit any wrong. I do not think it is necessary to deal with the large number of cited decisions dealing with the question of workmen. I think this shall not be seen to say that I am unappreciative of the arguments of counsels for the parties, or disrespectful to the high authorities cited by them.

The legal position is that the question whether Roy and Polley were workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947 was to be decided on the basis of evidence showing the dominant nature of the duties they were performing while in service. The dominant nature of their duties as quoted from the depositions and noted hereinbefore, in my opinion, cannot lead to any conclusion other than the one the Tribunal has reached.

I, therefore, do not find any reason to say that the findings of the Tribunal that Roy and Polley were workmen at the relevant date call for any interference in exercise of power under article 226.

As to merits, I am of the view that the Tribunal has committed no wrong, for Shalimar''s consistent case was that since Roy and Polley were not workmen, there was no question of complying with the provision of s. 25F. In view of the definition of the expression retrenchment given in s. 2(00), there can be no doubt that the terminations of services of Roy and Polley alleging loss of confidence were nothing but retrenchments. Since the retrenchments were effected in contravention of the provisions of section 25F, the Tribunal was justified in concluding that they were bad.

Even if it is accepted that Shalimar alleging loss of confidence terminated services of Roy and Polley as a punitive measure, the terminations cannot be sustained, for the services were terminated without holding any inquiry. I, therefore, hold that the Tribunal was fully justified in concluding that the terminations were bad in law.

In so far as the question of full back wages is concerned, I am unable to accept the argument that since Roy and Polley have not questioned the award by filing a separate article 226 petition, they cannot seek any relief in Shalimar''s petition. The award of the Tribunal challenged by Shalimar is at large and Roy and Polley are entitled to point out any error apparent on the face of it requiring exercise of power by the Writ Court for granting appropriate relief in terms of s. 11A of the Industrial Disputes Act, 1947.

The Tribunal concluding that Shalimar wrongfully terminated services of Roy and Polley also concluded that Roy and Polley would be entitled to back wages. It decided to grant only 40% of the back wages and the sole reason for its decision is that after termination Shalimar did not get any service from Roy and Polley. This is no valid ground to refuse full back wages. If this is accepted as a ground to refuse full back wages, then in no termination case a workman getting a favourable award will get full back wages.

Ordinarily, the rule is to grant full back wages and the exception is when it is proved that the workman was gainfully employed. Here it is not the case that after termination of their services Roy and Polley were gainfully employed elsewhere. I am, therefore, of the view that Roy and Polley both were entitled to full back wages, and that power u/s 11A should be exercised by this Court for granting them full back wages. For these reasons, I dispose of the petition ordering as follows. The conclusions of the Tribunal that Roy and Polley were workmen, and that Shalimar wrongfully terminated their services are upheld. The award is modified to the effect that Roy and Polley shall be given full back wages, and that failure to pay within four weeks from the date of communication of this order shall make Shalimar liable to pay interest at the rate of 10% per annum on the amounts payable. No costs. Certified xerox.