DILIP KUMAR CHATTERJEE v. . — 1982 DIGILAW 261 (CAL)

G. N. RAY, J. ( 1 ) THIS writ petition is heard as a contested application upon notice to M/s Titaghar Paper Mills Company Ltd. has appeared and has filed affidavit-in-opposition. The writ petition is directed against the adjudication made by the learned Judge, 5th Industrial Tribunal, West Bengal, under section 33a of the Industrial Disputes Act in Case No. 7 of 1980. The petitioner Sri Dilip Kumar Chatterjee was an employee as a Chemist Supervisor in the department of Laboratory at Mill No. 2 at Kankinara of the respondent No. 2 company viz. M/s. Titaghur paper Mills company Ltd. It is contended by the petitioner that the petitioner was an active member of the Titaghur Paper Mills Staff (Technical and Administrative) Association and the said Association used to take up cases of various demands of the members of the Association. The petitioner further contends that at the instance of the said Association there had been a management of the company and as such charter of demands was not acceded to by the company, a dispute arose and ultimately a reference under section 10 of the Industrial Disputes Act was made by the Government of West Bengal in Reference No. 5427-IR/ir/iii-368/75 dated 1st November, 1977 and the said reference is pending before the Industrial Tribunal. The scale of pay is one of the major issues involved in the reference and the petitioner Sri Dilip Kumar Chatterjee is also concerned with the said dispute in the aforesaid reference case. The petitioner also contends that he was entitled to all the payments of an employee of the company with permanent status including the payment of annual increment and, as a matter of fact, such annual increment had also been given to the petitioner from time to time excepting in two occasions when no increment was given to any employee. Such annual increment, according to the petitioner, fell due on 1st April of each and every year and in September, 1979 the company declared annual increments of the employees of the Mills and excepting six employees including the petitioner, others were given such increments. The petitioner, therefore, contends that the petitioner along with the said other employees were sorted out for victimization for their participation in the Trade Union activities. The petitioner, therefore, contends that the petitioner along with the said other employees were sorted out for victimization for their participation in the Trade Union activities. It is further contended by the petitioner that non-payment of annual increment for the year 1979 by the Company to the said Sri Dilip Kumar Chatterjee is an alteration of the service of the petitioner and as the disputes relating to annual increment is also pending in the said Reference Case, The company had contravened the provisions of Section 33 of the industrial Disputes Act by altering the service conditions of the petitioner during the pendency of the said industrial dispute. The Company disputed the case of the petitioner and contended that there was no contract for any increment in any scale of pay. The company contended that accordingly there was no condition of service relating to payment of any annual increment and the company had not altered any service condition of the petitioner by not giving the alleged annual increment. The Company contended that on overall assessment of the service of the petitioner and other employees increased salary had been paid to the petitioner and some other employees form time to time and so far as the petitioner was concerned, any increase in the salary had not been made at uniform rate and such increased salary had also not been paid each and every year. In the letter of appointment also, no scale of pay was mentioned and there was also no scale of pay for the petitioner and other employees of the similar category. It was precisely for the said reason that in the charter of demands, the employees had raised a dispute for a reasonable scale of pay and so long the employees including the petitioner would not get any favorable award in the said Reference case fixing any scale of pay with annual increment, the petitioner could not claim any annual increment as a matter of right or as a condition of service. It appears that the petitioner had examined himself before the learned Tribunal in the said proceeding under section 33a of the Industrial disputes Act and the Company also examined one witness viz. Sri Kalyan Banerjee, a Deputy Personnel Manger of the Company and documentary evidences were adduced by the parties. It appears that the petitioner had examined himself before the learned Tribunal in the said proceeding under section 33a of the Industrial disputes Act and the Company also examined one witness viz. Sri Kalyan Banerjee, a Deputy Personnel Manger of the Company and documentary evidences were adduced by the parties. Annexure 'c' is the order of reference in the said dispute under section 10 of the Industrial disputes Act and the first issue in the said reference is the scale of pay. The learned Judge of the Tribunals after considering the respective cases of the parties came to the finding that the said applicant viz. the petitioner in the instant writ petition was concerned with the dispute covered by the reference (Annexure 'c' ). But the learned Judge was of the view that annual increment had not been paid to the petitioner regularly and uniformly. For some year there was no increment paid to the petitioner and in other years, the rate of increase in the salary was also not the same. He accepted the case of the company that on overall assessment of the work of the petitioner, the petitioner was allowed increased salary at times but such increase was never made on the basis of annual increment and there was also no scale of pay fixed with reference to which the petitioner was entitled to any annual increment. The learned Judge came to the finding that as the Company had not contravened the provisions of Section 33 of the Industrial Disputes Act, the complaint under section 33a made by the petitioner was not maintainable. Accordingly the said application under section 33a was dismissed by the learned Judge of the Fifth Industrial Tribunal. ( 2 ) MR. Dasgupta, the learned Counsel appearing for the petitioner, has submitted that the learned Judge has misconstrued the materials on record and on misconception of facts and also by not applying his mind to the relevant consideration, he came to the finding that the petitioner was not entitled to any annual increment as a condition of service and as such there had not been any contravention of section 33 of the Industrial Disputes Act. He has referred to the appointment letter of the petitioner which is Annexure 'a' to the affidavit-in-opposition. He has referred to the appointment letter of the petitioner which is Annexure 'a' to the affidavit-in-opposition. It appears that in the appointment letter it has been provided for that the petitioner would be entitled to dearness allowance and other facilities on the basis of different slabs of salary of the petitioner. Mr. Dasgupta, therefore, submits that unless there the pay of the petitioner there cannot be any occasion to higher to higher slab of the petitioner's salary. Mr. Dasgupta has also contended that the increment of 1st April each year and expect for two years when for some specific reason no increment had been allowed to any of the employees in the category of the petitioner, the increment had been given to the petitioner every year at an uniform rate. He contends that previously the rate of annual increment was less but even then the increment was raised and each year the salary was increased by the same amount. He has also referred to the provisions of the Standing Order the increment can be stooped by way of punishment. The said Standing Order being applicable to the petitioner, it is clear that the petitioner is entitled to annual increment and such increment can only be stopped by measures of punishment and not otherwise. He has contended that the learned Judge has failed to apply his mind to the facts of the case and for such non-application of the mind to the relevant records, the learned Judge failed to note that there was continuity in the annual increments and there was also uniformity in the annual increments. The annual increment for one year was Rs. 25/- and for other years the annual increment was Rs. 50/- and excepting for two years increments had always been given at an uniform rate and even for the said two years the petitioner was not singled out but all employees of the category of the petitioner had not been given increment for specific reasons. Mr. Dasgupta has contended that that there may not be an express contract for giving the increment but if from the conduct of the employers it can be found that increments had always been given annually then the implied contract can be reasonably inferred and non-consideration of such implied contract must be held to be illegal vitiating the judgment passed by the learned Judge. ( 3 ) IN this connection, Mr. Dasgupta has referred to the decision of the Supreme Court made in the case of Ispahani Ltd. vs. Ispahani Employees' Federation reported in 1959 (2) Labour Law Journal, page 4. It has been held by the Supreme Court in the said decision that the question whether there was any implied term of an employment is not a simple question of fact and law. The Tribunal, therefore, has jurisdiction to consider a s the whether on the facts before the Tribunal, an inference of law can be made about the existence of an implied contract. Mr. Dasgupta contends that continuity and uniformity of the rate of increment given to the petitioner each year clearly established an implied contract of annual increment to the petitioner. In this connection, he has also referred to the decision of the Supreme Court made in the case of Vegetable Products Ltd. vs. Their Workmen reported in A. I. R. 1965 S. C. page 1499. In the said decision, the Supreme Court has referred to the decision made in the case of Grahams Trading Company (India) Ltd. vs. Its Workmen (A. I. R. 1959 S. C. page 1151) wherein it was held that for proof of payment of customary or traditional bonus, two conditions should be fulfilled viz. that such customary or traditional bonus have been made even in the years of loss and the payment had been made out at an uniform rate. In Vegetable Products Ltd's case, the Supreme Court has further laid down that it is not necessary to show that uniformity must be established from the beginning to end and whether or not payment has been made at an uniform rate is always a question of fact. Mr. Dasgupta has also contended that even when a customary bonus is not paid in the year of loss an implied contract can be found. In this connection the Supreme Court made in the case of Tulsidas Khimji vs. Their Workmen reported in 1962 (1) Labour Law Journal, page 435. It has been held in the said decision that loss substantial or otherwise is not sine qua non with customary bonus and the customary bonus can be established even though payments in the year of loss have not been shown. Mr. It has been held in the said decision that loss substantial or otherwise is not sine qua non with customary bonus and the customary bonus can be established even though payments in the year of loss have not been shown. Mr. Dasgupta has also contended that the company has also failed to establish as to the existence of any reasonable ground for denying the increment to the petitioner although such increment was given to other employees of the same category to which the petitioner belonged and in the absence of any cogent material it must be held that the annual increment had been denied to the petitioner in pursuit of an unfair labour practice and for victimization of the petitioner for his Trade Union activities. In this connection, Mr. Dasgupta has referred to a decision of the Supreme Court made in the case of Workmen of M/s. Williamson Magor and Co. Ltd. vs. M/s. Williamson Magor and Co. Ltd. reported in A. I. R. 1982 S. C. page 78. It has been held in the said decision that if there are grades and scopes of upgradation or promotion and there are different scales of pay for different grades in a private undertaking and. In fact, promotion or upgradation or unjust and unreasonable upgradation or promotion of persons superseding the claims of persons who may be equally or even more suitable. The work 'victimization' must be given moral meaning of being the victim of unfair and arbitrary action. Mr. Dasgupta has contended that if all these aspects had been considered by the learned Judge and thereafter he had come to the finding that there was no scale of pay either by express or by implied contract and stoppage of increment to the petitioner had also not been made in pursuit of unfair labour practice then there would not have been occasion for the writ court to interfere, but if the Tribunal has failed to take into consideration of the relevant materials and or factors and consequently there has been failure of justice. It will be the duty of the writ court to interfere and to give a proper decision in the case. ( 4 ) MR. Dutt. It will be the duty of the writ court to interfere and to give a proper decision in the case. ( 4 ) MR. Dutt. The learned Counsel appearing for the respondent company has submitted that for getting any relief in an application under section 33a of the Industrial Disputes Act, the petitioner must first establish that the employer has changed the service condition in respect of which a reference is pending and thereafter he should also establish on merit that he is entitled to any relief. Mere alteration in the condition of service in respect of which a reference is pending by itself does not entitle an employee to get a relief under section 33a, and the employee is also required to establish that such alteration was also made unjustly to his prejudice. Mr. Dutt has also contended that the dispute raised in an application under section 33a cannot be the dispute pending under a reference. The petitioner in the instant application under section 33a has raised the self-same in the reference. He submits that the scale of pay is the issue to be decided in the reference under section 10 of the Industrial Disputes Act, but before adjudication of such dispute in the reference case the petitioner is trying to get a decision of the said dispute in the instant application under section 33a of the Industrial Disputes Act. In the written statement filed in the reference case by the employees it had been specifically contended that there was no grade and the particular class of employees to which the petitioner belonged depended on the whims of the employer. Accordingly, the said employees had demanded suitable grade so that they might not depend on the whims of the employer. The reference case really proceeds on the footing that there was no grade for the class of employees to which the petitioner belonged and the suitable grade should therefore be introduced. He therefore submits that the petitioner is trying to make out a case which is contrary to the case of the employees in the said reference case. Mr. Dutt has also submitted that foundation of a complaint under section 33a is the contravention of section 33 and if the workmen is unable to shown that the employer has contravened section 33 in making the order complained of, the complaint under section 33a will be liable to be rejected. Mr. Dutt has also submitted that foundation of a complaint under section 33a is the contravention of section 33 and if the workmen is unable to shown that the employer has contravened section 33 in making the order complained of, the complaint under section 33a will be liable to be rejected. After contravention of Section 33 is established, the other question whether the order complained of is justified or not requires consideration on merit. For this contention, he has referred to the decision of the Supreme Court made in the case of Punjab Beverage Private Limited v. Suresh Chand reported in A. I. R. 1978 S. C. page 995. Mr. Dutt has also contended that simply because for some years the petitioner was given a higher salary by Rs. 25/- and for some years he was given higher salary by Rs. 50/- the uniformity or continuity are not established as a matter of course. It is an admitted fact that for some years, no increment was given to the petitioner and also other employees. Had there been any implied contract to give increments annually without any reference to loss, then for such years also increments would have been given. The said fact of not giving any increment for some years and for giving higher salaries for some years at variable rates annually indicates that there was no service conditions for giving annual increment agreed between the parties either expressly or by necessary implication. It is apparent that on the sweet will of the employer, on overall assessment of the performance of the employees was made and the petitioner allowed to draw higher salary at times. Mr. Dutt has pointed out that the inference to be drawn from the particular fact may be a question of law but the fact from which inference is to be drawn must be established or be found by the Tribunal. In the instant case, the Tribunal has considered the respective cases of the parties and materials on record and on fact he has come to the finding that there was no condition of service of the petitioner for which he was entitled to any annual increment, Accordingly, question of drawing any inference in a different way cannot and does not arise. Mr. Mr. Dutt has also contended that if from a set of facts one or the other view may be taken and if the Tribunal has taken a view by giving reasons therefore, the writ court should not interfere by supplementing it own views. In the aforesaid circumstances, Mr. Dutt contends, that the instant writ petition must be dismissed. He also points out that the petitioner will not suffer any prejudice because if the reference case is answered in favour of the employees then the petitioner will be entitled the suitable grade and in that event he will get annual increments. Mr. Dutt has also pointed out that the petitioner may feel aggrieved for not getting a favourable consideration from the employer but for the reason an application under section 33a will not be maintainable in law. ( 5 ) AFTER giving my anxious consideration to the respective contentions made by the learned Counsels for the parties, it appears to me that non existence of a suitable grade is a positive case of the employees in the reference case and accordingly existence of a grade with annual increment as an implied condition of service runs counter to the case made by the employees in the said reference case. It also appear to me that from the facts that there had been some continuity in the matter of increments in the salary given to the petitioner and there had been some uniform pattern in the matter of increments allowed to the petitioner from year to year, an implied contract may be inferred. But if the learned Tribunal is not inclined to accept the case of the petitioner but is more inclined to accept the case of the employer that there was no such agreement but time to time increment had been given on the Sweet will of the employer on overall assessment work of the petitioner, it will be very difficult for the writ court to hold that such view cannot be taken and/or the Tribunal has acted illegally. If the view, which the Tribunal has taken, is also a possible view to be taken in the facts of the case, no interference is called for in the writ jurisdiction of this court. The petition, therefore fails and is dismissed. But I make no order as to costs. If the view, which the Tribunal has taken, is also a possible view to be taken in the facts of the case, no interference is called for in the writ jurisdiction of this court. The petition, therefore fails and is dismissed. But I make no order as to costs. By way of abundant caution I make it clear that this Court has not expressed any opinion on the condition of service of the petitioner. No interference is called for in the writ jurisdiction of the Court.