Vishan Roy vs Bayer (India) Ltd.

Bhagabati Prosad Banerjee, J.—This is an appeal against the judgment and order dated December 12, 1990 passed by the learned trial Judge in C.O. No. 103 (w) of 1989 dismissing the writ application filed by the appellant writ petitioner against the order dated June 17, 1988 passed by Shri R.K. Ghattak, Judge, 8th Industrial Tribunal rejecting the application of the workman for interim relief as provided u/s 15(2)(b) of the West Bengal Amendment of the Industrial Disputes Act.

In this appeal the question arose as to the scope and ambit of the power of the Industrial Tribunal u/s 15(2)(b) of the Industrial Dispute Act, 1947 as amended by the West Bengal Industrial Dispute (2nd Amendment) Act, 1980. For deciding the issue raised in this appeal it would be necessary for us to refer to the provision of Section 15(2)(b) of the said Act which is as follows:

"15(2) Where an industrial dispute has been referred to a Labour Court or Tribunal, it shall

(a) after filing of statements and taking of evidence give day to day hearing and give its award, upon determination or decision in the manner specified in Section 17-B without any delay:

(b) upon hearing the parties to the dispute, determine within a period of 60 days, from the date of reference under Sub-section (1) of Section 10 or within such shorter period as specified in the order of reference under Sub-section (1) of Section 10 the quantum of interim relief admissible, if any:

Provided that the quantum of interim relief relating to discharge, dismissal, retrenchment or termination of service of workman shall be equivalent to subsistence allowance as may be admissible under the West Bengal Payment of Subsistence Allowance Act, 1969".

The facts of this case relevant for the purpose of the appeal are that the appellant petitioner was employed as car driver under the respondent''s company, Bayer (India) Ltd., and was working as such from November 14, 1967. On or about March 2, 1976 the service of the appellant petitioner was terminated by the respondent-company by paying one month''s salary in lieu of notice on March 2, 1976. The service of the appellant was terminated as the appellant petitioner did not carry out an order of transfer. The said termination of service of the appellant petitioner was the subject matter of an industrial dispute and the Labour Court on consideration of the matter passed an award holding that the termination of service of the appellant petitioner was justified by an award dated June 28, 1979. Being aggrieved by and dissatisfied with the said award dated June 28, 1979 the appellant petitioner filed a writ application whereupon a rule was issued, being C.R. No. 10419(W) of 1979. The said Civil Rule came up for final hearing before Amitava Dutta, J. (as his Lordship then was) and by an order dated February 15, 1984 the learned Judge held that the order of termination of service simpliciter tantamounts to retrenchment and as such the same was void ab initio as the requirement of Section 25-F of the Industrial Dispute Act was not complied with by the management and that the said award was quashed by the said learned Judge. The management was directed to pay the back wages to the appellant petitioner on the footing that he had been continuing in service and the learned Judge also observed in the said judgment that it would be open to the management to retrench the appellant petitioner after complying with the requirement of Section 25-F of the Industrial Dispute Act and in accordance with law. Against the judgment and order dated February 15, 1984 passed in Civil Rule No. 10419(W) of 1979, the management preferred an appeal before the Division Bench of this Court. Ultimately the appeal filed by the management was dismissed. After the appeal was dismissed, the management reinstated the appellant petitioner by the order dated January 30, 1985 with effect from February 5, 1985 in the service of the company at Calcutta and paid a sum of Rs. 1,57,713.87 after deducting the provident fund contribution and the Income Tax at source and other advances. By another order passed on the same date, the management informed the appellant petitioner that the management had decided to retrench him with effect from February 5, 1985 as the management did not have any services to offer to him at Calcutta Office and as required u/s 25-F of the Industrial Dispute Act paid two demand drafts one for Rs. 2365.32 which was equivalent to one month''s wages in lieu of period of notice and the other for Rs. 22,877.52 being retrenchment compensation. The appellant petitioner had encashed the demand draft for back wages for Rs. 1,57,713.87 but in so far as the retrenchment compensation is concerned the demand drafts were not initially encashed by the appellant petitioner but he subsequently encashed it. Again an Industrial Dispute was referred to by the State Government by an order dated December 16, 1986 to the Tribunal. The issue was "is the retrenchment of Sri. V. Roy with effect from February 5, 1985 justified and lawful? To what relief, if any, is the workman entitled"? The appellant who was the workman immediately filed a written statement before the 8th Industrial Tribunal before whom the dispute had been referred to disclosing the fact of receiving the back wages amounting to Rs. 1,57,713.87. Thereafter the appellant workman filed an application for interim relief u/s 15(2)(b) of the Industrial Disputes Act as amended by the West Bengal Industrial Dispute (2nd Amendment) Act, 1980. The said prayer for interim relief u/s 15(2)(b) of the Act was opposed by the management on the ground that the management had paid amount as back wages and that the appellant was all along earning as Taxi Driver and earning not less than Rs. 35/- per day. It was alleged that in 1985 the workman obtained a permit for a Matador Van for carrying goods on hire basis and the workman paid Rs. 40,000/- for the said vehicle and the balance of Rs. 71,338/- was paid by Indian Bank, Bhowanipur Branch to which bank the vehicle was hypothecated. It was also alleged that the workman paid the money for the said Matador Van and the same was registered in the name of Sri Vikram Roy who was stated to be the elder brother of the workman. In support of the defence, the management examined the Regional Administrative Manager and he deposed before the Tribunal that he engaged a private detective to verify the informations and that it was stated before the Tribunal that he had seen the workman driving the Matador Van for which he invested the money to get the ownership. According to him, the appellant workman did not remain unemployed. He also stated that he had on many occasions seen the appellant driving Taxi and private car and Fiat car but he had not noted the numbers of the said cars or the taxi or the vehicles and that he was not able to produce any certificate from the Motor Vehicles Department showing the "ownership" of any vehicle registered in the name of the workman. The workman deposed before the Labour Court that money which he had received from the management had been spent since he had to maintain a daughter and a son that he further stated he opened a fixed deposit of Rs. 40,000/- for making provisions for his daughter''s marriage. He further stated he had no other income and remained unemployed all through. He also stated that his elder brother was maintaining him and his family during all these years when he was unemployed and for that purpose he gave him Rs. 40,000/-. He also stated that the rest of the money had been spent on account of loan which he had to incur during his unemployed period during all these years. The Tribunal held that it was clear that after spending Rs. 40,000/- for acquiring the Matador Van, he still remained in possession of Rs. 1,50,000/- (approx.) to fetch him an income of about Rs. 1200/- per month at the rate of interest payable by the bank and ultimately the Tribunal held that "I, therefore, hold that he does not remain unemployed because of the action of the company who obtained liberty from the Hon''ble Court to retrench him on payment of that large cash amount. If the case goes against him, at present, he has nothing to stake, but on the other hand the company will suffer irreparable injury since there is no provisions in the statute to compensate the company in such event. So, the effect of the interim relief application in favour of the workman will be pernicious and so that would, therefore, be a repugnant consideration".

Being aggrieved by and dissatisfied with the order passed by the 8th Industrial Tribunal dated June 17, 1986 rejecting the application for interim relief u/s 15(2)(b) of the Industrial Dispute Act, the appellant petitioner filed a writ petition before this Court. The writ application ultimately came up for hearing before the learned trial judge in CO. No. 1031(W) of 1989. The learned trial Judge by order dated December, 1990 dismissed the writ petition in the facts and circumstances of the matter this time in issue. The learned trial judge did not find any infraction of law in the matter in issue. Further it was held it is well settled principle that in the event the Tribunal comes to definite finding on the basis of evidence on record the High Court in its writ jurisdiction ought not to interfere with the same lightly but it ought to deal with the matter more cautiously and only in the event there is a gross miscarriage of justice or there appears to be error apparent on the face of record the writ Court can interfere. It was further observed that on the factual score there exists no error apparent on the face of the record, neither the reason given can be said to be patently illegal so as to warrant the writ court to intervene. Further it was submitted that since the appellant had accepted the retrenchment benefit, the appellant was estopped from challenging the order of retrenchment and consequently not entitled to get any interim relief. On the other hand, Mr. Parthasarathi Sengupta submitted that both Tribunal and the learned trial judge have misconstrued the provision of the Section 15(2)(b) of the Industrial Dispute Act and inasmuch as the receipt of the back wages before the order of retrenchment was served does not and cannot stand as a bar to get any relief u/s 15(2)(b) of the said Act. Secondly, it was submitted that the findings of the Tribunal in support of its finding that the appellant did not remain unemployed was perverse. Next it was submitted that the Tribunal had committed grave and substantial error in making a premature finding with regard to merit of the dispute at the predecisionalstage. Mr. Sengupta further submitted that in terms of the order passed in earlier writ application after complying with the retrenchment in terms of the provisions of law and that if such retrenchment is made pursuant to that observation made by this Court in that - event it could not be stated that the retrenchment was made pursuant to the order passed by this Court and as such the same could not be called in question. On the question of interpretation of the provision of Section 15(2)(b) of the said Act, Mr. Sengupta relied on a Division Bench decision of this Court in the case of Ganges, Printing Ink Factory Employees Industrial Co-operative Society Ltd. and Ors. v. The 7th Industrial Tribunal and Ors. reported in (1986) 2 CHN 243 wherein it was held that the Division Bench construing the provision of the said Act that the matters can be considered by the Tribunal u/s 15(2)(b) of the said Act were (a) admissibility (b) any objection as to the sustainability of the reference and (c) effect of the grant or its refusal on the employer or the workman and that it was further observed that the term ''admissible'' has a definite and well recognised meaning as legal concept used primarily with regard to evidence, it means matters which are relevant and not otherwise excluded by law. Admissibility may be one of the considerations in the process of adjudication of interim relief but all the considerations which guide the Tribunal in exercise of the power in that regard are not the tests of admissibility. Mr. Sengupta submitted as to the maintainability of the claim for interim relief is concerned. Mr. Sengupta relied on the proviso of Section 15(2)(b) of the said Act which provides that "provided that the quantum of interim relief relating to discharge, dismissal and/or retrenchment or termination of service of workman "shall be" equivalent to subsistence allowance as may be admissible under the West Bengal Payment of Subsistence Allowance Act, 1969". It was further submitted that there are cases where there is no question of grant of any interim monetary relief. With regard to the test of maintainability, Mr. Sengupta submitted that it could not be disputed that Industrial Dispute was not maintainable and that it was submitted that Tribunal was wrong in holding that when the retrenchment order was passed pursuant to the liberty given by this Court in the earlier proceeding the same could not be called in question was a perverse view of the matter in as much as in the earlier proceeding this Court made it clear that it would be open to the management to retrench the appellant in accordance with law. In the order of retrenchment by the Learned Trial Judge it was stated that the management did not have any service to offer in Calcutta Office or in other words, there was no requirement of any driver in Calcutta Office. In this connection reference was made to Section 25-F of the said Act which provides "that no workman employed in an industry who had been in continuous service of not less than 1 year shall be retrenched by the employer until the work-man had been given 1 month''s notice in writing indicating reasons for retrenchment", and that it is when an industrial dispute has been raised in that event the Tribunal would go into the question whether the reasons given in the order of retrenchment was a good and a valid reason or was a mere devise to terminate the service in the garb of retrenchment. So according to Mr. Sengupta the Tribunal has misconstrued the order passed in the earlier writ petition as well as the scope and effect of Section 25F of the said Act while rejecting the said application for interim relief. Lastly, it was submitted by Mr. Sengupta that the subsistence allowance as provided under the West Bengal Payment of Subsistence Allowance Act, 1969 would be inadmissible only in case where the workman concerned had accepted the employment to any place other than the establishment where he had been working immediately before his suspension and in this connection he has referred to proviso to Section 3(1) of the West Bengal Payment of Subsistence Allowance Act, 1969 which was referred to in Section 15(2)(b) of the said Act "provided further that an employee shall not be entitled to any subsistence allowance if he accepts employment during the period of suspension in any place other than the establishment where he had been working immediately before his suspension". Mr. Sengupta submitted that the Tribunal without any evidence on record erroneously held that as a driver he could remain unemployed, or in other words, he was driving the Matador Van and as such he was a self-employed person. Mr. Sengupta submitted that on plain reading of the proviso of Section 3(1) of the W.B. Payment of Subsistence Allowance Act, 1969 an employee is debarred from getting the subsistence allowance if he accepts employment in any other establishment and that one cannot employ himself and accepting of employment must mean accepting employment in any other establishment. Accordingly, the Tribunal rejected the application on total misconception and misreading of the provisions of law. Mr. S. Sarkar learned Advocate appearing on behalf of the respondent company submitted that in the facts and circumstances of the case where the management have paid the said sum of Rs. 1,57,713.87 as back wages he must be taken to be a solvent man and that the management cannot be asked to pay the interim relief. Reliance was placed on behalf on the management to the finding of the Tribunal as well as reasons given by the learned trial Judge. It was further submitted that the power u/s 15(2)(b) of the said Act could only be invoked only in a case where the workman concerned was unemployed and unable to maintain himself. But in the facts and circumstances of the case when the workman could maintain himself with the money in that event it will be contrary to the spirit and object of the provisions of law to grant such relief and it was further submitted that in case the dispute is decided in favour of the workman the workman would get the entire benefit but in this stage no interim relief should be granted to the workman on the ground that he was given a lumpsum by the management and secondly, the Tribunal found that he was self employed and as such the purpose of the Act should be defeated if such relief was granted to the workman.

Industrial Disputes Act is a piece of social legislation and the Courts have always emphasized on the doctrine of social justice, which is founded on basic ideal of social and economic equality and have given it predominant consideration. Law is a technique for the regulation of social power. This is true of labour law as it is of other aspects of legal system. The principal purpose of Labour Law is to regulate, to support and to restrain the power of management and the power of organised labour. The provisions of Section 15(2)(b) of the Industrial Disputes Act introduced by the West Bengal amendment was designed to extend the principles of social and economic justice which the Constitution intends to secure to all the citizens. In the instant case the said provision has been introduced with a view to protecting the workman in case a dispute is referred to the Tribunal and Tribunal proceeded to decide such dispute which required time and money. Uptill now there is no such broad based legal aid for the labourers and/or workmen and the workmen had to fight and defend such a proceeding before the Tribunal against the management. Under such circumstances the legislature had enacted a provision so that in cases where a workman is discharged, dismissed, retrenched or his service had been terminated he is entitled to this interim relief so that he can survive and fight out the litigation.

Keeping in mind this principle we have to construe the provisions of Section 15(2)(b) of the said Act wherein the Labour Court or the Tribunal had been charged with the duty to determine "quantum of ad interim relief admissible, if any". Accordingly the Tribunal has to determine the quantum of ad interim relief wherever it is admissible and the proviso thereto clearly lays down the amount of relief which should be given by the Tribunal and that in case of discharge, dismissal, retrenchment or termination of service the Tribunal has no option to determine the quantum but shall automatically adopt the quantum which should be equivalent to Subsistence Allowance admissible under the West Bengal Act of 1969. Craies on Statute Law 6th Edition Page 217 stated the rules for construction of a proviso which is "the effect of excepting or qualifying proviso, according to the ordinary rales of construction is to exempt out of the preceding portion of the enactment or to qualify something enacted therein, which but for the proviso would be within it, and such a proviso cannot be construed as enlarging the scope of enactment when it can be fairly and properly construed without attributing to that effect". Supreme Court in A.N. Sehgal and others Vs. Raje Ram Sheoram and others, held that the scope of the proviso, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect. Applying these principles normally, proviso narrows down the effect of the preceding words or, in other words, the proviso to section narrows the effect of the main provision.

On plain reading of the above provision it is clear that it is the duty of the Tribunal to determine the question of quantum of ad interim relief if admissible. There are cases where interim relief admissible say for example if the dispute is with regard to terms and conditions of service or a case of transfer and other dispute not relating to discharge, dismissal, retrenchment or termination of service; only in such four cases the question of granting of ad interim relief could automatically arise. The question that was raised in this case was whether within the scope of this section the Tribunal can refuse the interim relief on the ground stated by the Tribunal and upheld by the learned trial Judge.

The Tribunal rejected the claim on two grounds. The first was that as the management have paid a sum of Rs. 1,57,713.87 before the retrenchment and that money was sufficient to maintain himself during the period the dispute is pending and secondly, he was a driver and as such he was employed. We have gone through the order with the reasoning given by Tribunal but we are unable to appreciate the reasoning given by Tribunal. In this case the appellant was out of service from March 22, 1976 and that the back wages that was paid by the management after the appeal was dismissed by the Division Bench of this Court in the earlier proceeding only on January 30, 1985 or in other words, the appellant was out of service for 9 years and that back wages for 9 years was paid and that it does not require any exercise of special skill to appreciate that a workman who was out of service for 9 years must have incurred loans from various quarters and that the Tribunal in a most unusual and impracticable manner rejected the claim of the appellant workman regarding the loan in the absence of authenticated documents. In our country an unemployed person has to take loan or temporary accommodation or help for the purpose of survival and it is not expected that such unemployed person shall be granted loan by the banks and financial institutions on the basis of documents. The reasoning given by Tribunal for not accepting the evidence of the workman is, in our view, contrary to well settled principles and are plainly not good reasons. In our view, the finding of the Tribunal regarding the existence of Rs. 1,57,713.87 has no actual and factual basis and that the same on the face of it is perverse and not based on any evidence.

It is not out of place to mention that the Tribunal proceeded in the matter in a manner which has resulted in substantial failure in justice while passing the said order. Tribunal has made a finding contrary to the case made out by the employer against the employee in so far as owning a vehicle. The management in the written statement stated that the Matador Van was purchased in the name of the brother of the workman but in the order this fact was significantly omitted by the Tribunal. Secondly, there cannot be any purchase in a benami in as much as benami is prohibited and punishable under Law. Further the reasoning given by Tribunal which was accepted by the learned trial Judge was peculiar. The Tribunal has said in one breath that he had sufficient money and that by making investment he could earn his livelihood and also said that a workman who has frittered away such a huge sum of money was not entitled to relief. In our view, a workman who is out of service for so many years if he gets back wages that cannot ipso facto stand as a bar to get relief u/s 15(2)(b) of the said Act. Secondly, Tribunal has proceeded on the footing that the entire sum of rupees was by way of retrenchment which was not correct as a matter of fact. Further we are of the view rules of estoppel or waiver cannot be applied against a retrenched workman who had no freedom to refuse the payment in view of his financial position, caused by the earlier termination keeping him unemployed for so many years and the issue of order of retrenchment immediately after reinstatement. We are constrained to take exception to the finding of the Tribunal that "but it is difficult to decide as to maintainability of the relief to favour of the man who happened to suppress a huge cash relief which he had already obtained by the orders of the Hon''ble High Court modifying the previous award in respect of the same case". The appellant had not suppressed the receipt of the back wages from the employer and secondly, money was not given pursuant to the order passed by this Court in the previous proceeding modifying the previous award. In the earlier proceeding the termination simpliciter was made as a penal measure under the garb of termination simpliciter and in the instant case the question is whether the retrenchment was made in accordance with law or in other words, whether there are valid reasons for such retrenchment. Accordingly, we are of the view that Tribunal has committed a grave and serious error which calls for intervention by this Court. Tribunal has rejected the application on the ground of suppression made by the appellant regarding the receipt of huge cash relief which was contrary to the record and secondly, the Tribunal has travelled beyond the scope or ambit of the Section 15(2)(b) of the said Act. With regard to the rules of interpretation of the provisions of industrial dispute we may remind ourselves with the observation made by the Supreme Court in the case of The K.C.P. Employees'' Association, Madras Vs. The Management of K.C.P. Ltd., Madras and Others, , where it was held that in industrial law interpreted and applied in the perspective of Part IV of the Constitution, the benefit of reasonable doubt must go to the weaker section, namely, the labourer. So this is a clear authority for the proposition that in case of any ambiguity or in case where two interpretations are available, the benefit must go to the labourers who are weaker section of the society. Accordingly applying the rules of interpretation laid down by the Supreme Court we must hold that within the cope of Section 15(2)(b) of the said Act, Tribunal had no option but to decide the quantum straightway in case of discharge, dismissal, retrenchment or termination of service in accordance with provision laid down in the provision thereto but only exception is that such interim relief could not be given on the fact if it transpires that the dispute was not maintainable or in view of the petitioner of the dispute there was no scope for any interim relief. There may be cases where such interim relief is not admissible. The monetary relief is admissible only in cases where the dispute is decided in favour of the workman. Monetary benefits could be obtained as in the case of dismissal, discharge or retrenchment or termination of service or in similar other cases. Such relief could not be given in case where the workman remained employed and earned his livelihood because of such employment. In such cases it would not be maintainable on the question of fact of grant or refusal on the employer or employee is concerned. In this case, an employee whose service has been terminated and who remained unemployed, in our view, was entitled to get interim relief for his subsistence.

In our view, the language of the Section does not permit any other interpretation. The ; language of Section does not permit to interpret that the provision of Section 15(2)(b) could only be invoked in a case where the workman concerned was unemployed and could not maintain himself as there was no other condition precedent imposed under the law. The Tribunal has been given liberty to fix the quantum of the interim relief admissible but in case of retrenchment no discretion is left to the Tribunal regarding fixing the quantum which has to be fixed in accordance with the principles laid down in the proviso. In this connection we may refer to provision of Section 24 of Hindu Marriage Act wherein it is provided that if a party, if the husband or wife as the case may be, was unable to maintain himself or herself independently he or she was entitled to maintenance pendente lite. There the legislation makes it clear that the Court has gone into the question whether a party applying for maintenance is able to maintain himself or herself independently with his own income or not and if it is found by the Court that if he or she was not able to maintain with his own or her own income only in that event the Court on consideration of the entire matter can pass an order for maintenance. Such view which is not expressly provided could not be imported for construing the provision of Section 15(2)(b) of the said Act. The legislature had clearly provided that in case of retrenchment also the workman concerned was entitled to get interim relief the quantum of which is clearly indicated. The legislature also while enacting the provision was fully aware that in case of retrenchment, the retrenchment benefits are given but in respect of the same the legislature clearly provided that in case of retrenchment also workman will be entitled to get interim relief. Of course the case of discharge, dismissal and termination of service was quite different from retrenchment yet when the legislation has treated the case of discharge, retrenchment, dismissal or termination of service at par and alike, we are unable to accept the contention that in case of retrenchment and in case where one gets an amount as retrenchment benefits he is disqualified to get such interim relief. This view will be contrary to the plain language used in the section and the same would be contrary to not only the language used, it would be contrary to the spirit and object of such legislation. Here vires of the provision of the Act for treating the case of discharge, dismissal, termination or retrenchment on the ground of discrimination on the plea that the discharge, dismissal and termination cannot be treated at par with the retrenchment and/or legislation made unequals as equal. In the absence of challenge to the vires of such a law, we are unable to hold that in case of retrenchment, an employee is not entitled to such interim relief. Accordingly, we are of the view that the learned trial Judge was wrong in dismissing the writ application on the basis of the finding and/or statement recorded by tribunal. The finding of the Tribunal in this case in support of rejection of the application was perverse and that the reasoning given by the Tribunal was de hors the statute and was based on total misconception of the provisions of Section 15(2)(b) of the said Act. We have already held that the order of the Tribunal has resulted in substantial failure of justice in the facts and circumstances of the case. It is not a case of interference with the finding of Tribunal on pure question of fact. It is well settled that when Tribunal being the final Court of fact conies to definite finding such finding could not be interfered with by the writ Court unless such a finding is perverse. In the instant case we have held firstly the Tribunal is perverse and secondly the Tribunal has travelled beyond the scope of the provisions of the Act and have travelled beyond the statute in order to find out the meaning while rejecting the application for interim relief. Accordingly, considering the facts of the case, we are of the view that the order of the Eighth Industrial Tribunal dated June 17, 1988 in Case No. VIII- 22/87 and the order of the learned trial Judge dated December 12, 1990 passed in C.O.N. 103(W) of 1989 is set aside and we hold that the appellant was entitled to get interim relief in accordance with the provision of Section 15(2)(b) of the said Act with effect from the date of retrenchment i.e., February 5, 1985. Accordingly it is directed that the appellant do get interim relief with effect from February 5, 1985 within three months from today.

The appeal is allowed without any order as to costs.

Baboo Lal Jain, J.

I agree.