Benett Coleman v. STATE OF WEST BENGAL — 1979 DIGILAW 209 (CAL)

JUDGMENT 1. THE subject matter of challenge in this application is the order dated 16th January, 1979 passed by the First Labour Court, West Bengal. The said order is as follows : "both parties are present. Heard the workman and the representative of the company. Considering the circumstances the case is adjourned to 16th March, 1979 for hearing the two petitions filed on behalf of the workman on 22nd may, 1978 and 23rd October, 1978 and the objections given by the Company. The Company is hereby directed to bear the Railway expenses of the Workman in attending this Court on 16th March, 1979. In this matter the Company is to guide itself as if the workman is in the employ of the company and on duty. " 2. IN order to appreciate the challenge to this order, it may be relevant to refer to certain facts. According to the petitioner, Benett Colemam and Co. Ltd., the respondent No. 3 was employed with effect from 1st November, 1961 in the company's service as a staff Correspondent and was a working Journalist. He was then promoted as an Industrial Correspondent, Pune on 16th November, 1976. Subsequently, I am told that the services of the respondent no. 3 were terminated. The respondent no. 3 has challenged such termination of his services by the petitioner in the appropriate Court at Pune and has. obtained certain orders of injunction. I am not, however, concerned in this application with the controversy whether the termination of the services of the respondent no. 2 was bona fide or illegal or what is the effect of the order of the Court at Pune though I will notice that as a contention touching the same was made by the respondent no. 3 in this application before me. It is stated by the petitioner that the Government of India had promulgated an ordinance which was later on converted into a statute, viz. Working Journalists (Fixation of Rates of Wages) Act, 1958 on 16th September, 1958. It is the case of the petitioner that the respondent no. 3 is also covered by the said Act as well as under the recommendations of the Wage Board. The petitioner further states that after the Wage Board recommendations came into being, the respondent no. Working Journalists (Fixation of Rates of Wages) Act, 1958 on 16th September, 1958. It is the case of the petitioner that the respondent no. 3 is also covered by the said Act as well as under the recommendations of the Wage Board. The petitioner further states that after the Wage Board recommendations came into being, the respondent no. 3 raised a dispute which was ultimately referred to Second Labour Court, Government of West Bengal and there was an award by the Second Labour Court to which I need not refer for the purpose of this application. Thereafter, the respondent no. 3, according to the petitioner, did not challenge the said award and after the award the respondent no. 3 raised the following disputes which were subsequently referred, on the failure of the conciliation proceedings, to the First Labour Court for industrial adjudication, viz. "whether the management is justified (i) in fixing the pay of Sri Samarjit Ghosh in a new scale other than what is indicated by the Wage Board, and at the same time enforcing the dearness allowance scheme recommended by the said Board ; (ii) in not protecting the higher total wages rates of wages available to Sri Samarjit ghosh under the Company's conditions of service prior to recommendations of the Wage board; (iii) To what relief, if any is he entitled?" The said order of reference was made on the 23rd August, 1977. The petitioner raised certain preliminary points of objections which have been get out in this petition to which It is not necessary for the purpose of this application to refer in detail. After the reference was made, the learned First Labour Court gave directions for filing of the respective Written statements and certain orders were passed which are also set out in the petition. It is stated on behalf of the petitioner that though the respondent no. 3 was himself a lawyer he had raised an objection relating to appearance of the lawyer on behalf of the petitioner. This objection, according to the petitioner, was belated. On the 21st December, 1977, First labour Court passed certain orders and thereafter different dates were fixed for hearing. It appears that certain objections were filed on the 22nd May, 1978 and the reply was given thereto by the petitioner on the 11th January, 1979. This objection, according to the petitioner, was belated. On the 21st December, 1977, First labour Court passed certain orders and thereafter different dates were fixed for hearing. It appears that certain objections were filed on the 22nd May, 1978 and the reply was given thereto by the petitioner on the 11th January, 1979. Another objection was filed on the 23rd october, 1978 and there were certain allegations in the said petition about the grant of certain traveling allowances. On the 16th January, 1976 the respondent no. 3 wrote a letter to the Chief personnel Manager, in which he stated, inter alia, as follows: "4. The Company is aware of my claims for interim relief and to 1963 scheme of Dearness allowance. If I am to get these issues settled through the Labour Court, West Bengal, where the issue of interim relief is pending and through a reference to a Labour Court in West Bengal which is in the process of being made by the West Bengal Government in respect of the Claim of 1963 scheme of D. A., the company should allow me special leave and provide special travelling allowance and daily allowance to meet my expenses for appearing in the respective courts and conducting the cases, as and when necessary, as otherwise the high and prohibits cost of travelling from Pune to Calcutta and back will make the transfer punitive and put me under undue pressure and unfair pressure to give up my rightful claims which can only be settled in Calcutta and nowhere else because of jurisdiction of the Court concerned and the cause of action at the material time. Alternatively, the Company should accept my claims for interim relief and to 1963 scheme of D.A. and pay me all arrears accordingly. Please consider my instant representation. If I do not get any letter from your end, within 31.1.76, then it shall be presumed that you have made up your mind not to give me any relief as prayed for hereinabove and thus victimise me without any valid reason or fault of mine. I accept that the company has right to transfer for administrative reason but such transfer should be just and fair. Unless my above prayers are favorably considered it, shall be presumed that my transfer to Pune as proposed is not fair and just. " 3. I accept that the company has right to transfer for administrative reason but such transfer should be just and fair. Unless my above prayers are favorably considered it, shall be presumed that my transfer to Pune as proposed is not fair and just. " 3. ON the 24th January, 1976, on behalf of the petitioner, a reply was given to that letter in which it was inter alia, stated as follows : "in regard to the legal case already pending in the Labour Court in which your presence may be required by the Court at Calcutta, the general policy of the company is to grant leave if and when an employee is required to attend Court proceedings involving the company and this facility will be extended to you. But in view of the distance between Pune and Calcutta, you may approach the management after reporting at Pune on 16th February for other facilities for the specific court case in which your attendance is necessary. Your request will receive sympathetic attention. " 4. I have set out in extensor the relevant portion of the said letter because certain contentions based on this were made by the respondent no. 3 in support of his claim for sustaining the order of the Tribunal. I have also set cut the order of the Tribunal. The tribunal has directed that the company was to bear the railway expenses of the workman in attending the Court on 16th march, 1979. 16th March, 1979 was the date fixed by the Tribunal for subsequent hearing of that case. The Tribunal met on the 16th March, 1979. In this matter, the Tribunal observed, the company was to guide itself as if the workman was in the employ of the company and on duty. It is the propriety of this order that is being challenged in this Case. It will now be necessary to refer to the relevant provisions of the Industrial Disputes Act, 1947 and the rule Sub-section (7) of sec. 11 of the Industrial Disputes Act, 1947 which deals with the procedure, powers and duties of the different authorities provides, inter-alia, as follows: "11. It will now be necessary to refer to the relevant provisions of the Industrial Disputes Act, 1947 and the rule Sub-section (7) of sec. 11 of the Industrial Disputes Act, 1947 which deals with the procedure, powers and duties of the different authorities provides, inter-alia, as follows: "11. (7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court Tribunal or national Tribunal shall be in the discretion of that Labour Court, Tribunal or national Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent subject to what conditions, if any, such costs are to be paid, and to give all necessary directions for the purposes aforesaid and such costs may on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as in arrear of land revenue. " 5. THE said rule, as I read it, provides that subject to any rules made under this Act, the costs, of, and incidental to, any proceeding before a Labour court tribunal or National Tribunal shall be in the discretion of that Labour Court, tribunal or National Tribunal and the labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent and subject to what conditions if any such costs are to be paid and to give all necessary directions for the aforesaid purpose. Rule 24a of the West Bengal Industrial Disputes rules, 1958 provides for determination of costs and is In the following term: "24a. Rule 24a of the West Bengal Industrial Disputes rules, 1958 provides for determination of costs and is In the following term: "24a. Determination of costs In determining the costs of and incidental to, any proceeding before a Labour Court or an Industrial Tribunal such Labour Court or Industrial Tribunal (a) Shall have regard, inter alia, to the traveling and other expenses, allowed and paid to the witnesses a party for attending such Industrial Tribunal or Labour Court, the compensation, if any, allowed by the Industrial Tribunal or Labour Court and paid to the party's witnesses for the loss suffered by them by reason of having to attend such Industrial Tribunal or Labour Court and remuneration, if any, allowed and paid to expert witnesses as well as such allowances and, if considered proper, such compensation, for a party himself when he was called as a witness or required to produce a document by the other party, unless the same has already been paid to such party ; and (b) may have regard to the traveling and other expenses of a party who gave evidence on his own behalf, to the extent admissible to other witnesses of a similar standing: Provided that the cost referred to in clause (a) shall be assessed only in respect of such persons whose presence is considered essential for the hearing of the case and who were actually present before the Industrial Tribunal/labour Court. " 6. NOW, it is apparent that sub-clause (a) of Rule 24a can have no application in this case. So far as sub-clause (b) of Rule 24a is concerned, the Tribunal or the Labour Court may have regard to the traveling and other expenses of a party who is to give evidence on his own behalf, to the extent admissible to other witnesses of a similar standing, provided that the costs referred to in clause (a) shall be assessed only in respect of such person whose presence are considered essential for the hearing of the case and who were actually present before the Industrial Tribunal or the Labour Court. In order to attract this rule, it is first necessary to determine that the person, if a party is to be paid the costs, must be a witness for that date. Secondly, it must be considered so relevant by the Tribunal. In order to attract this rule, it is first necessary to determine that the person, if a party is to be paid the costs, must be a witness for that date. Secondly, it must be considered so relevant by the Tribunal. Thirdly, it must be that he must be actually present on that date for which the cost is awarded. It is only on fulfillment of these three conditions in terms of the Rule 24a of the West Bengal Industrial Disputes Rules, the Tribunal has the power to award costs in the manner contemplated under clause (a) of Rule 24a. So far as sub-section (7) of Section 11 of the Act is concerned, which I have set out hereinbefore, the said section empowers the Tribunal in the discretion of it to award such costs. That expression 'discretion' has been succinctly explained in one of the passages by Lord Hal bury which has been quoted with approval by the Supreme Court in the case of Punjab National Bank v. Sriram Kunwar, AIR 1957 SC 276 at page 279. There, the Supreme Court was dealing with the discretion of the Tribunal of the Labour Court under sub-section (7) of Sec. 11 of the Industrial Disputes Act. The Supreme Court in paragraph 8 of the judgment at page 279 has observed as follows : 8. It is not disputed that sub-section (7) of Section 11 of the Act gives a discretion to the Tribunal, and it has full power to determine by and to whom and to what conditions, if any, the costs are to be paid. It is clear, however, that the discretion, is a judicial discretion and must be exercised according to the rules of reason and justice not be chance or caprice or private opinion or some fanciful idea of benevolence or sympathy. It is a negation of justice and reason to direct the appellant to pay in advance the fasts of the respondent irrespective of the final result of the proceeding. The general rule is that costs follow the event unless the Court, for good reasons, otherwise orders. Respondent No. 1 gave no reasons for his order except that of practice, a practice, assuming there be any such practice, which is neither legal nor just. The general rule is that costs follow the event unless the Court, for good reasons, otherwise orders. Respondent No. 1 gave no reasons for his order except that of practice, a practice, assuming there be any such practice, which is neither legal nor just. It may be conceded that the jurisdiction of an Industrial Tribunal is not invoked for the enforcement of mere contractual rights and liabilities of the parties to the dispute referred to the Tribunal for adjudication ; its jurisdiction in the matter of adjudication of an industrial dispute is wider and more flexible. All the same, it is not an arbitrary jurisdiction it may be readily conceded that an employee is. as such entitled to a fair deal as an employer and he must be protected from victimization and unfair Labour practice, but social justice does not mean that reason and fairness must always yield to the convenience of a party, convenience of the employee at the cost of the employer as in this casein an adjudication proceeding. Such one sided or partial view is really next of kin to caprice or humor. Lord Hal bury L.C. put the matter in characteristically forceful language when he said direction means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion : Bookers case (1598) 5 C. Rep 100 a (A); according to law, and not humor. It is to be, not arbitrary, vague and fanciful, but legal and regular'., (Susannah Sharp v. Wakefield) (1891) AC 173 at p. 179 (B)." In this case, from the reasons indicated in the impugned order of the Tribunal, it is apparent that both parties were present on the 16th January. 1979 but whether the adjournment up to the 16th March 1979 was necessitated because of any conduct on the part of the petitioner is not apparent from the reasons indicated by the Tribunal, nor is it clear that the presence of the respondent no. 3 was considered essential by the Tribunal as a witness of its own, nor is it clear that the Tribunal could have been satisfied that on the 16th March, 1979 the respondent no. 3 would be present. 3 was considered essential by the Tribunal as a witness of its own, nor is it clear that the Tribunal could have been satisfied that on the 16th March, 1979 the respondent no. 3 would be present. Therefore, as it appears this direction of the Tribunal is without the indication on what basis the Tribunal proceeded to make a litigant who is merely pursuing his personal litigation even assuming transfer during the pendency of the litigation, to be on duty. The respondent no. 3 contended before me that in view of the letter that he wrote, which I have set out hereinbefore, before his transfer to Pune and the reply thereto by the petitioner, this order of the Tribunal was justified. Firstly, the letter in categorical term only indicates that if he was to go in spite of the lending reference then he should be granted leave and in spite of categorical assurance of the company in respect of the expenses that if he made any prayer further that would be "sympathetically considered". This cannot, in my opinion in the eye of law to be considered to have been incorporated as a condition of the binding agreement between the parties. In any event from the order of the Tribunal, it is not apparent that whether the tribunal was adjudicating the issue whether there was any breach of the terms agreed to between the parties by the two letters of 16th January, 1976 and 24th January, 1976, as I have set out hereinbefore. That was not in issue before the Tribunal either directly or incidentally. 7. THE respondent no. 3 further drew my attention to the traveling allowances which are payable to the working journalists and which are admissible in the case of respondent no. 3. But this scale would apply if the respondent no. 3 was on duty. That was also not an issue before the Tribunal. Therefore, these rules, in my opinion, have no relevance in this connection. 8. MY attention was also drawn to certain Rules of the Working Journalists (Conditions of Service and Miscellaneous) Provisions Act, 1955. It may be mentioned that the Tribunal was not adjudicating any dispute as to whether there has been any violation of the terms and conditions of the Working journalists (Conditions of Service) Miscellaneous Provisions Act, 1955. 8. MY attention was also drawn to certain Rules of the Working Journalists (Conditions of Service and Miscellaneous) Provisions Act, 1955. It may be mentioned that the Tribunal was not adjudicating any dispute as to whether there has been any violation of the terms and conditions of the Working journalists (Conditions of Service) Miscellaneous Provisions Act, 1955. In that context, in my opinion, to say that in all cases, the company was to treat its workmen as in the employ of the company on duty, the Tribunal has dearly exceeded its jurisdiction and the order of the Tribunal was wholly without jurisdiction. On behalf of the respondent, State Government, learned Government pleader contended that the application was premature. This was an interlocutory order and any infirmity in the order could be challenged when the final order would be passed. But in this case, the order is not an interlocutory order in true sense because the payment of costs, as ordered by the Tribunal, is not subject to final adjudication of the rights of the parties in that award. Therefore, looked at from that point of view, it is not really an interlocutory order. On behalf of the respondent no. 3 it was urged that the conduct of the petitioner was malafide as would be apparent from the termination of his service subsequently. I am not concerned in this application with this question and I, therefore, refrain from expressing any opinion or this aspect of the matter. 9. I had made certain interlocutory orders on this application and I have directed the Company to pay a sum of Rs. 630/- as an advance to the respondent No. 3. Having regard to the facts and circumstances of the case and having regard to the subsequent events that have happened, I think, justice of the case would be met if I set aside the order of the Tribunal. Accordingly I set aside the order of the Tribunal and direct that the advance made to the respondent no. 3 by the company for undertaking the journey should be treated as an excreta payment made by the company and this amount should not be recovered from the respondent no. 3. The Rule is made absolute with the above observations. Rule made absolute.