M. N. Pramanick v. Eighth Industrial Tribunal — 1982 DIGILAW 106 (CAL)

ORDER: This Rule is directed against the award dated 30th May 1977 made by the Eighth Industrial Tribunal in a Reference under S. 10 of the Industrial Disputes Act in the matter of dispute between M/s. M.N Pramanick and others and their workmen represented by the Commercial Establishment Staff Union. The issue for determination by the learned Tribunal was "(1) Whether termination of services of the workmen named below by way of refusal of employment to them is justified?- (1) Shri Banshi Ram, (2) Shri Chandrdp Ram, (3) Shri Faleswar Ram, (4) Shri Deonandan Ram. (5) Shri Hari Ram, (6) Shri Sarju Ram, (7) Shri Sambhu Ram and (8) Shri Lal Mur Ram, (II) To what relief, if any, are they entitled ?" 2. The petitioner firm which is a registered partnership firm contended before the learned Tribunal that excepting Shri Chandra Ram, Sri Deonandan Ram and Shri Hari Ram, the other five persons named in the reference were not employed by the firm at any point of time. So far as the said three employees were concerned, the firm contended, that the said workmen did not raise any dispute in respect of their alleged dismissal and as such there was no industrial dispute in law before the Tribunal. It was also contended that the Union viz. Commercial Establishment Staff Union had no locus standi to represent the workmen and said Union had no existence at the time of reference. The Tribunal, however, negatived the said contention raised by the Firm and by the a ward directed the Firm to reinstate all the said workmen with full back wages and other legitimate dues being paid to them till the date of actual reinstatement. It was also directed that the said award should be implemented within one month from the date of publication of the award in the official gazette. The petitioner firm has challenged the correctness of the said adjudication made by the Tribunal in the instant Rule. 3. Dr. Mookerjee, the learned Counsel appearing for the petitioner Firm, contends that the Firm had admitted that only three of the alleged employees viz. Chandradip Ram, Deonandan Ram and Hari Ram were employees of the petitioner Firm but they voluntarily abandoned their employment. 3. Dr. Mookerjee, the learned Counsel appearing for the petitioner Firm, contends that the Firm had admitted that only three of the alleged employees viz. Chandradip Ram, Deonandan Ram and Hari Ram were employees of the petitioner Firm but they voluntarily abandoned their employment. However, the firm offered them to join and in view of such offer for employment given to them there was no question of any award of reinstatement and/or back wages and the learned Tribunal misroncived the fact of the case and erroneoulsly passed the said Award With regard to the other employees in respect of whom the said Reference was also made, Dr. Mookherjee contends that there was no direct or indirect evidence to prove their employment by the petitioner firm Dr. Mookerjee contends that even the circumstantial evidence was not enough to prove the appointment of the said three persons and for continuance of them as labourers of the firm. Dr, Mookerjee submits that on the alleged date of termination, the said person were not members of the Union which could expouse the cause of said person the and they became members only on 12th March 1974. The said Union was also not authorised to represent the establishment like that of the petitioner firm. The name of the Union as appears from the letter dated 14th March 1974 clearly suggests that the said Union was representing different class of employees. Dr. Mookerjee also contend, that in the order of reference dated 31st May 1975 the name of the Union was described as Commercial Establishment Staff Union but from the letter dated 19th November, 1974 being Annexure 'E' to the writ petition, it appears that the name of the Union representing the said workers is the Commercial, Shops & Factory Establishments Staff Union. Dr. Mookerjee, therefore, contends that no reference was made in the name of the Union which was in existence on the date of reference and on that score alone it must he held that the reference was bad and the Union could not represent the industrial dispute before the learned Tribunal. Dr Mookerjee further contends that the petitioner firm categerically contended that excepting the said three workers, others were not employed by the firm at any point of time and as such, there was no occasion of any industrial dispute existing between them and the petitioner firm. Dr Mookerjee further contends that the petitioner firm categerically contended that excepting the said three workers, others were not employed by the firm at any point of time and as such, there was no occasion of any industrial dispute existing between them and the petitioner firm. He submits that in such circumstances, the claimant workmen and/or the Union must establish by sufficient proof that they were employee of the establishment in question. For this contention, Dr. Mookerjee, refers to a decision of this Court made in the case of Swapan Dasgupta v. The First Labour Court reported in 1976 Labour and Industrial Cases, page 201. He also contends that the burden of proof being in the workmen to establish the employer-employee relationship, an adverse inference cannot be drawn against the employer for non production of the registers and other documents containing the names of the employees Dr. Mookerjee also contends that no direct or circumstantial evidence was laid on behalf of the concerned workmen that excepting the said three, the other workmen had been employed at any point of time by the petitioner firm. He submits that the Tribunal drew an adverse inference against the firm simply because some letters were addressed to some of the said workmen at 3 Rani Rasbmoni Road, Calcutta 13 where the registered office of the firm is situated. The tribunal also drew an adverse inference against the firm because the address of the said workmen in the ration cards issued by the authorities of the Rationing Department of the Government of West Bengal was stated to be 3 Rani Rashmoni Road and the petitioner firm was shown as employer. Dr. Mookerjee submits that the firm had no hand in giving the said address either in the letter or in the ration cards and simply because without the knowledge and consent of the firm somebody mentioned the address of the firm in other documents not concerning the petitioner firm, no reasonable inference can be drawn and the finding of the learned Tribunal against the petitioner firm on the basis of the said documents is perverse and should not be accepted by this Court. Dr Mookerjee contends that there is no direct evidence to show that the said persons were employed by the petitioner firm at any point of time and there is also no circumstantial evidence showing the appointment of the said persons and continuace of them as labourers of the firm. He submits that in appropriate case, circumstantial evidence may be accepted as a proof of a fact but evidence must be directed towares the fact. The fact which was required to be proved by the Union and/or the said employees was that they were employees of the firm particularly when the firm denied their status as employees of the firm, but there was no circumstantial evidence even to prove such employment and the letter and/or ration cards only indicate that the address of the firm was mentioned in the said documents. Dr Moukerjee, therefore, submits that the employees and/or the Union having failed to discharge initial onus to prove that they were the employees of the petitioner firm, the Tribunal should have answered the reference against the said employees. In support of this contention, Dr. Mookerjee refers to a decision of the Kerala High Court made in the case of N. C. John v. T. T. Shop and Commercial Establishment Workers' Union, reported in 1973 Labour and Industrial Cases, page 398. It has been held in the said decision that in a dispute as to the existence of employer-employee relationship the burden of proof of such existence of the employer-employee relationship is on the workmen and no adverse inference can be drawn against the employer for non-production of the books of account, Dr. Mookerjee also submits that to constitute an industrial dispute the Union is to take up the case of the concerned employees and for this contention, he refers to a decision made in the case of Bombay Union of Journalists v. The Hindu, reported in 1961 (2) Labour Law Journal page 436 Dr. Mookerjee submits that both on the merits of the case and also on the ground that the Union in respect of which the Reference was made could not repesent the employees because the employees were not members at the relevant time of the said Union, the Reference should have been answered against the Union and/or the employees. 4. Mr. Mookerjee submits that both on the merits of the case and also on the ground that the Union in respect of which the Reference was made could not repesent the employees because the employees were not members at the relevant time of the said Union, the Reference should have been answered against the Union and/or the employees. 4. Mr. Sengupta, the learned Counsel appearing for the respondents, however, submits that for making a Reference under S. 10 of the Industrial Disputes Act, the existence of an industrial dispute is the basic thing. He submits that S. 2A of the Industrial Disputes Act has come into force after amendment with effect from 1st December, 1965 and any dispute with regard to the termination of service is an industrial dispute. It is, therefore, immaterial if anybody espouses the case of the dismissed employee. Even if no other workmen or any Union of the workmen raises such dispute, the termination of service of a workman will be an industrial dispute under S. 2A. Mr. Sengupta also contends that mere non-mentioning of S. 2A in the order of Reference on the issue of termination of service of an employee, will not be fatal or a bar to the Tribunal to consider the provisions of that section. He submits that after incorporation of S. 2A in the statute, the requirement for espousing a dispute by a group of workmen and/or and Union has lose relevance. In support of this contention, he refers to a decision of this Court made in the case of Throne's (P) Ltd v. State of West Bengal, reported in 1980(2) Calcutta Law Journal page 448 Mr. Sengupta also contends that when a reference is made under S. 10, there is a presumption of existence of an industrial dispute. Such presumption is rebuttable but for the purpose of rebutting the same, evidence is required to be adduced by the employer challenging existence of industrial dispute. In support of this contention be refers to a Bench decision of this Court made in the case of Reckitt & Colman of India Ltd. v. The Fifth Industrial Tribunal, reported in 1980(1) Calcutta High Court Notes page 23. In support of this contention be refers to a Bench decision of this Court made in the case of Reckitt & Colman of India Ltd. v. The Fifth Industrial Tribunal, reported in 1980(1) Calcutta High Court Notes page 23. He also contends that the Tribunal cannot go beyond the terms of reference and the Tribunal is to decide as to whether the termination is justified or not and for this contention he also refers to a Bench decision of this Court made in the case of Sabitri Motor Service (P) Ltd v. State of West Bengal, reported in (1976) 33 FLR page 41. Mr. Sengupta contends that whether termination was made or not in fact, may be raised by the firm but existence of industrial dispute cannot be questioned before the Tribunal and the Tribunal also cannot decide the same. Mr. Sengupta contends that it is immaterial as to whether or not the employees in question were members of the Union or the name of the said Union was changed before the reference was made. It is, also not material for consideration either by the Tribunal or by this Court that the said Union was not an Union concerned with the class of workmen to which the concerned employees belonged. Mr. Sengupta contends that when an industrial dispute is referred under S. 10 it is the State Government which makes the reference and not the workmen. The power to make reference is absolutely on the State Government and even in the absence of any representation made by any workmen and/or the Union before the State Government, the State Government may make a reference under S. 10 if the State Government is satisfied that there is or a likelihood of the industrial dispute and for bringing industrial place a reference is justified. For this contention, he refers to a decision of the Supreme Court made in the case of M/s. Avon Service Production Agency (P) Ltd. v. Industrial Tribunal, Haryana reported in AIR 1979 SC 170 . Mr. Sengupta, therefore, contends that reference under S. 10 was quite competent and the learned Tribunal had jurisdiction to decide the reference made before it and the objections raised on behalf of the petitioner firm are of no substance. Mr. Sengupta, therefore, contends that reference under S. 10 was quite competent and the learned Tribunal had jurisdiction to decide the reference made before it and the objections raised on behalf of the petitioner firm are of no substance. He also contends that in a reference before the Tribunal the real party is the employer and the concerned employees and not the Union representing the concerned employees. The reference is made in the name of the Union for the purpose of facilitating the service of the notice and for getting the case represented on behalf of the employees at the hearing. He, therefore, submits that even assuming that at the relevant time the name of the Union was changed, the reference did not become incompetent as sought to be contended by Dr. Mookerjee For this contention Mr. Sengupta refers to a decision of the Supreme Court made in the case of The Manager, Hotel Imperial v. The Chief Commissioner, Delhi, reported in AIR 1959 Supreme Court page 1214. It has been held in the said decision that the objection that the Union could not be made party to the reference is a mere technical objection which does not affect the order of reference. The fact remained that the dispute which was referred for adjudication was between the employer and its employees. The addition of words "represented by the Hotel Workers' Union" etc. was merely for the sake of convenience so that the Tribunal may know to whom it should give notice when proceeding to deal with the reference. On the merits of the case, Mr. Sengupta contends that Deonandan Ram (O P.W. 1) gave evidence before the Tribunal and he stated that all the said persons worked with him in the said firm. Hence it cannot be contended that there is no direct evidence to the effect that the said employees were employed under the petitioner firm. Mr. Sengupta contends that Mr. M. N. Pramanick, a partner of the firm, also gave evidence before the learned Tribunal and he admitted that Sri Faleswer Ram and Sri Bansi Ram were also employed by the said firm for some time. No evidence was, however, laid by him as to when they left the service. With regard to Faleswar Ram, Mr. Pramanick only stated that he could not say how long Faleswar Ram worked. Mr. No evidence was, however, laid by him as to when they left the service. With regard to Faleswar Ram, Mr. Pramanick only stated that he could not say how long Faleswar Ram worked. Mr. Sengupta contends that out of eight employees, three were admitted by the firm as its employees and the partner of the firm in his deposition was constrained to admit that the other two viz Bansi Ram and Faleswar Ram were also employees at some point of time. Mr. Sengupta contends that Deonandan and Bansi Ram deposed before the learned Tribunal and categorically stated that they were employees under the firm. To test the veracity of such evidence on the point as to whether or not the said persons were employees of the firm, the Tribunal had taken into consideration the other circumstances namely the postal communication made at the said address and the address contained in the Ration cards and upon consideration of all the said facts and documents, the Tribunal came to the finding that the said persons were employees of the petitioner firm. Mr. Sengupta, therefore, submits that in the circumstances the said finding is neither illegal nor perverse and no interference is called for by the Writ Court against the finding of fact validly made by the learned Tribunal. Commenting on the alleged offer made by the petitioner firm to three of the employees to join the said firm. Mr. Sengupta contends that the firm did not offer all back wages even to the said three employees at any point of time but only offered for prospective employment if they so desired. The partner of the firm, Mr. M. N. Pramanick in his deposition has categorically stated that he cannot then take the said employees because he had employed other persons. Mr. Sengupta submits that if only an offer of prospective employment is given without offering all back wages after treating the employees as if in service all along, the said offer cannot be held to be an offer for which the dispute or the cause of action must be held to have come to an end. The said limited and/or conditional offer was not rightly accepted by the employees and the dispute therefore remained to be decided by the learned Tribunal. The said limited and/or conditional offer was not rightly accepted by the employees and the dispute therefore remained to be decided by the learned Tribunal. The learned Tribunal having specifically held that the termination of service of all the employees including the said three employees were illegal and without jurisdiction, the Tribunal passed the impugned Award and as no injustice has been made by the learned Tribunal, interference by the writ court is not called for. Mr Sengupta, therefore, submits that the Rule should be discharged with costs. 5. In reply to the said contention of Me. Sengupta, Dr. Mookerjee submits that the test as to whether a dispute is an industrial dispute or not is whether on the date of reference the dispute was taken up or supported by the Union of the workmen of the employer against whom the dispute is raised by one individual workman or by an appreciable number of workmen. For this contention, he refers to a decision of this Court made in the case of Deepak Industries v. State of West Bengal reported in 1975(1) Labour Law Journal, page 293. Dr. Mookerjee submits that on the date of reference, the dispute was neither raised against the employer by an individual workman or a group of workmen and such cause was not taken by the Union representing such workmen. He, therefore, submits that the reference was incompetent. 6. After considering the respective submissions made by the Counsels appearing for the parties, it appears to me that in respect of there workmen out of eight, the petitioner firm had admitted specifically that they were employees of the petitioner firm. Accordingly, there was no necessity to prove that the said three employees were the workmen under the petitioner firm. With regard to two other employees viz. Bansi Ram and Faleswar Ram, the managing partner of the firm Mr. M.N. Pramanick bad admitted in his deposition that they were employees of the firm for some time. Having admitted that the said two persons were also employees of the petitioner firm for some time, in my view, the firm should have established how and when the said persons left the service and as such there was no existence of relationship of master and servant between them and the petitioner firm. That apart, in my view, Mr. Having admitted that the said two persons were also employees of the petitioner firm for some time, in my view, the firm should have established how and when the said persons left the service and as such there was no existence of relationship of master and servant between them and the petitioner firm. That apart, in my view, Mr. Sengupta is justified in his contention that O.P.W. 1 and O.P.W.2 specifically stated that all the said persons had worked in the said firm and in the circumtances, it cannot be held that there was no evidence relating to the employment of the said persons under the firm. Mr. Sengupta, in my view, is also justified in his contention that to test the veracity and/or acceptability of the evidence adduced to the effect that all the said employees had been working in the said firm, the Tribunal his also considered other documents viz. the postal communication and the ration cards. Accordingly, it cannot be contended that on mere surmise and conjecture and in the absence of any positive evidence, the Tribunal came to the finding that the said employees were labourers under the petitioner firm. In a reference under the Industrial Disputes Act, the real party is the concerned employees and their cause may be represented by the Union. In the circumstances, the validity of the reference will not be affected simply on the ground that the name of the Union was changed before the reference was made. In my view, it is also not material if at the time of dismissal of the said employees they were not members of the said Union and/or the Union was not primarily concerned with the class of the employees to which the said workmen belonged. Mr. Sengupta is justified in his contention that after amendment of S. 2A any dispute with regard to termination of service will be an industrial dispute and admittedly the reference was made in respect of an industrial dispute relating to termination of service of the said employees. So far as the decisions of Deepak Industries' case is concerned, it appears to me that the facts of the said case are different and the decision of the Supreme Court made in the Hotel Imperial's case (AIR 1959 SC page 1214) was not also taken into consideration in the said decision. That apart, O.P.W. 2 viz. So far as the decisions of Deepak Industries' case is concerned, it appears to me that the facts of the said case are different and the decision of the Supreme Court made in the Hotel Imperial's case (AIR 1959 SC page 1214) was not also taken into consideration in the said decision. That apart, O.P.W. 2 viz. one of the dismissed employees, specifically deposed that the dismissed employees, went to join the but were not allowed to enter. The said fact of disallowing the employees to join and work and non-payment of salary to them, clearly indicates that the employer disputed the right of the said employees to continue as employees of the firm Accordingly, an industrial dispute within the meaning of S. 2A of the Act arose. In the circumstances, there is no reason to interfere with the adjudcation made by the learned Industrial Tribunal and the Rule, therefore, fails and is discharged, but I make no order as to costs. 7. A prayer for stay of the operation of the judgment has been made by the learned Counsel for the petitioner. The prayer is seriously opposed by Mr. Sengupta the learned Counsel for the respondents. I, however, allow the said prayer. Let the operation of this judgment be stayed for a period of three weeks from today. Rule discharged.