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2022 DIGILAW 377 (CAL)

P. C. News Agency (P) Ltd v. Pradip Biswas

2022-03-10

SUVRA GHOSH

body2022
JUDGMENT Suvra Ghosh, J. - The Court: The award impugned dated 17th June, 2016 passed by the Learned 4th Industrial Tribunal, Kolkata, is under challenge in the present writ petition. 2. The contention of the writ petitioner, in a nutshell, is hereunder:- The petitioner is carrying on business as a distributing agent of daily newspapers, magazines, journals, etc. published by the Bartaman printers and publishers as the sole selling agent of the company. In order to bring its workmen into the fold of gratuity from a consolidated fund with the Life Insurance Corporation of India, the petitioner formulated a master policy on 20th april, 1990 for such restricted purpose wherein the age of retirement is recorded as 65 years. Upon subsequent consideration as per prevailing policies of other establishments with regard to age of retirement of the employees, it was decided that such age be reduced to 58 years and individual contracts were executed between the petitioner and the workmen wherein the age of superannuation was recorded as 58 years, the same being accepted by all the workmen including those involved in the industrial dispute. The employees of the company requested the management to clear their doubts regarding their age of retirement and upon detailed discussion, the company issued three notices on 22nd June, 1993, 30th June, 1993 and 12th June, 1996 stating the superannuation age as 58 years and displayed them on the notice board of the company. The petitioner company formed a trust by executing a deed of trust on 3rd May, 1991 which was subsequently modified by a Deed of Variation dated 25th May, 1991. On request of the petitioner, the LIC issued the master policy for granting benefits to the employees in terms of the Trust Deed and the petitioner agreed to pay premium in lieu of which the LIC would grant benefit of gratuity to each employee upon superannuation. Pursuant to a Board Resolution taken on 20th December, 2006 a Deed of Variation was executed on 2nd January, 2007 which was approved by the Income Tax Department. a bipartite settlement was arrived at between the petitioner and the employees and on 25th October, 2005, it was agreed by all the employees that the retirement age would be 58 years and all the employees including Pradip Kumar Biswas, the writ petitioner herein, who disagreed with the said proposal earlier, put their signatures in the said settlement. a bipartite settlement was arrived at between the petitioner and the employees and on 25th October, 2005, it was agreed by all the employees that the retirement age would be 58 years and all the employees including Pradip Kumar Biswas, the writ petitioner herein, who disagreed with the said proposal earlier, put their signatures in the said settlement. a similar memorandum of settlement was also executed in 2009 and 2012 which was signed by all the employees except Pradip Kumar Biswas. However, Sri Biswas superannuated on 4th February, 2012 and accepted his retiral benefits. 3. Thereafter Sri Biswas raised an industrial dispute before the appropriate authority and a reference was made to the Learned 5th Industrial Tribunal, Kolkata on 13th October, 2011 which was taken up for final adjudication by the Learned 4th Industrial Tribunal, Kolkata after the matter was transferred to the said Court. In deciding the dispute, the Learned Tribunal held that the petitioner violated the provision of section 9(a) of the Industrial Disputes act. Primarily relying upon the technical anomaly regarding eight digit phone numbers appearing in the appointment letters, the Tribunal granted an award in favour of the employees holding the retirement age to be 65 years without considering the case in its proper perspective. The approach of the Tribunal was biased and unreasonable and documents submitted by the petitioner were not taken into consideration. 4. The petitioner has prayed for issuance of writ in the nature of mandamus quashing/setting aside the impugned award dated 17th June, 2016 passed by the Learned 4th Industrial Tribunal, Kolkata as well as a writ in the nature of prohibition restraining the respondents from giving effect to the impugned order. 5. Both the parties have submitted written notes of argument in support of their respective contentions. 6. The argument canvassed by learned counsel for the petitioner is as follows:-The master policy dated 24th april, 1990 was created for a limited purpose of forming a gratuity fund and cannot override the bipartite settlement between the employer and the employees. Clause XVI of the master policy indicates that the normal retirement age of each member shall be 65 years unless otherwise specified in the individual appointment letter. The appointment letter of the respondent employee was issued on 5th June, 1993 and clause IX of the letter refers to the retirement age as 58 years. Clause XVI of the master policy indicates that the normal retirement age of each member shall be 65 years unless otherwise specified in the individual appointment letter. The appointment letter of the respondent employee was issued on 5th June, 1993 and clause IX of the letter refers to the retirement age as 58 years. Individual letters were issued to all employees indicating their retirement age as 58 years. The Charter of Demand forwarded to the petitioner on 13th april, 1996 by the Paschim Banga Sanstha O Dokan Karmachari Samiti is silent with respect to the age of superannuation. In terms of clause VII of the said Charter, individual appointment letters were issued. The Trust Deed executed on 3rd May, 1991 was amended by execution of a Deed of Variation on 2nd august, 1996 and by virtue of a resolution passed by the Board of Directors of the petitioner company in its board meeting held on 20th December, 2006 the age of retirement was changed to 58 years from 65 years with effect from 1st January, 2007. The resolution states that such change has been made as the age of retirement under the Gratuity Scheme differs from the service rule of the employer company. In the Deed of Variation executed on 2nd January, 2007 the normal retirement age was fixed at 58 years, these deeds remaining unchallenged. a bipartite settlement was entered into by and between the petitioner and the employees including the respondent wherein the age of superannuation as 58 years was agreed upon by the parties to the settlement and majority of the employees including the respondent put their signatures therein. However the respondent refrained from signing the second memorandum of settlement entered into by and between the employer and the employees on 1st January, 2009 which also reiterates the superannuation age as 58 years. annexure P-7 to the writ petition which are receipts showing acceptance of gratuity by employees demonstrate that majority of the employees who retired at the age of 58 years have received the gratuity amount due to them. It is not in dispute that as the respondent refused to receive the gratuity offered to him, the same was sent to him by speed post. 7. The judgment impugned demonstrates that the Employees' Union submitted before the Tribunal that they would have no grievance if the age of retirement was fixed at 60 years. It is not in dispute that as the respondent refused to receive the gratuity offered to him, the same was sent to him by speed post. 7. The judgment impugned demonstrates that the Employees' Union submitted before the Tribunal that they would have no grievance if the age of retirement was fixed at 60 years. In fact, the Union submitted before the Tribunal that they were not pressing the prayer for fixation of age of retirement at 65 years and prayed for such fixation at 60 years. The stand taken by the Union before the Tribunal was violation of the provision of section 9(a) of the Industrial Disputes act, 1947. In this regard, the Tribunal held that fixation of period of service or date of retirement is not covered under section 9(a) of the 1947 act as the same does not fall within any of the items of the Fourth Schedule. The learned Tribunal has taken note of anomalies with regard to telephone numbers recorded in the appointment letters issued to various employees. Such anomaly has been termed as unfair practice on the part of the respondent. 8. In view of section 18(1) of the Industrial Disputes act, 1947, the respondent is bound by the terms of the bipartite settlement signed by him. Furthermore, the notices dated 22nd June, 1993, 30th September, 1993 and 12th august 1996 indicate that the respondent was aware of the date of retirement even prior to execution of the Deed of Variation and as such, the question of violation of section 9(a) of the act of 1947 does not arise. The question of reemployment of the respondent also does not arise in view of the fact that the respondent is about 67 years old at present. 9. In support of his contention, learned counsel has placed reliance on the judgments of the Hon'ble Supreme Court in Harmohinder Singh v/s. Kharga Canteen, ambala Cant. reported in (2001) 5 Supreme Court Cases 540, Transmission Corpn., a.P. Limited and Others v/s. P. Ramachandra Rao and another reported in (2006) 4 Scale 362 and a judgment of the Hon'ble High Court of Orissa in achyuta Charan Panda v/s. M.D. Paradeep Phosphates Limited in W.P. (C) No. 8419 of 2008 passed on 21st april, 2010. 10. reported in (2001) 5 Supreme Court Cases 540, Transmission Corpn., a.P. Limited and Others v/s. P. Ramachandra Rao and another reported in (2006) 4 Scale 362 and a judgment of the Hon'ble High Court of Orissa in achyuta Charan Panda v/s. M.D. Paradeep Phosphates Limited in W.P. (C) No. 8419 of 2008 passed on 21st april, 2010. 10. In refuting the contention of the petitioner, learned counsel for the first respondent has submitted as hereunder:- The master policy which came into effect on 1st March, 1989 indicates the normal retirement age of the members as 65 years. The appointment letter of the respondent suggests that the respondent was confirmed in service after 6 months of his appointment, i.e., on and from 1st March, 1986. The appointment letter issued to the respondent on 5th June, 1993 does not bear the signature of the respondent showing receipt of the same and it cannot be ascertained as to whether the said letter was received by the respondent. Clause XIX of the Rules of Group Gratuity Scheme refers to the normal retirement age as 65 years. No retirement age is indicated in the letter of appointment issued to the petitioner on 1st September, 1985. There is nothing on record to suggest that the notices issued on 22nd June, 1993, 30th September, 1993 and 12th august, 1996 were notified to the employees. The said notices were not served on the employees or displayed on the notice board and have been manufactured after initiation of the industrial dispute. No individual appointment letter was issued to the employees as appears from the Charter of Demand submitted by the employees on 13th april, 1996. Deed of Variation executed on 2nd august, 1996 does not alter the normal retirement age. Though the extract of resolution passed by the Board of Directors of the petitioner company in its board meeting held on 20th December, 2006 states that the age of retirement under the Gratuity Scheme differs from the service rule of the company, no such service rule has been placed on record. Though the said resolution was taken on 20-12-2006, the receipt dated 12-12-2002 reveals that one of the employees Rajkumar Das received payment from the petitioner company upon full and final settlement of gratuity on retirement at the age of 58 years. It is absurd that the age of retirement was altered to 58 years prior to the resolution. Though the said resolution was taken on 20-12-2006, the receipt dated 12-12-2002 reveals that one of the employees Rajkumar Das received payment from the petitioner company upon full and final settlement of gratuity on retirement at the age of 58 years. It is absurd that the age of retirement was altered to 58 years prior to the resolution. The year of retirement of Rajkumar Das has been recorded as 2009 in the chart at pg-64 of the writ petition whereas the same has been shown as 2002 in the receipt. 11. The Deed of Variation is silent regarding the reasons for change of the retirement age. No reason is assigned for execution of the memorandum of settlement by and between the parties despite issuance of individual appointment letters earlier. The alteration in the date of retirement is in violation of the provisions of section 9(a) of the Industrial Disputes act, 1947 and the Fourth Schedule therein. Learned counsel has emphasised that the age of retirement cannot be varied by a settlement unless it is actually settled between the parties. Such variation should be included in the terms of service. The appointment letter issued in 1993 is not in prescribed form. 12. Strangely, one of the employees Mr. Ohidur Rahaman retired from service on 21st December, 2007 and received gratuity on the same date. The agreement entered into between the said employee and the management for an extension with effect from 1st January, 2008 to 31st December, 2008 also does not inspire confidence. Challenging the genuineness of the appointment letters issued by the management, it is submitted that 8 digit phone numbers could not have appeared in the said letters issued in 2002 as telephone numbers consist of 7 digits after 1997. The format of the letter head on which the letter of appointment was issued on 5th June, 1993 was changed within a period of 17 days thereafter. The documents relied upon by the management are false and fabricated which indicates unfair labour practices on the part of the employer as defined in the Fifth Schedule. The respondent claims all back wages with interest thereon, litigation cost and other consequential reliefs in the writ petition. 13. The documents relied upon by the management are false and fabricated which indicates unfair labour practices on the part of the employer as defined in the Fifth Schedule. The respondent claims all back wages with interest thereon, litigation cost and other consequential reliefs in the writ petition. 13. Learned counsel for the respondent has placed reliance on judgment of the Hon'ble Supreme Court in Rajneesh Khajuria v/s. Wockhardt Limited and another reported in (2020) 3 Supreme Court Cases 86 and a judgment of the Delhi High Court in ahuja Trading Company v/s. Ramesh Chander agarwal in C.M (M) 1122/2021. 14. I have considered the submissions made on behalf of the parties, the documents on record and the law on the point. 15. By the award impugned dated 17th June, 2016 the Learned Tribunal has held that age of retirement of the employees of the company should be accepted as 65 years instead of 58 years. The master policy signed on 20th april, 1990 demonstrates that the normal retirement date in respect of a member shall be 65 years unless otherwise specified in the individual appointment letter. The master policy pertains to formation of a gratuity fund for the benefit of eligible employees of the company. Clause 7 of the master policy states that the policy is effected in accordance with the provision of the Trust Deed executed by and between the company and the Trustees and in the event of any amendment to the Trust Deed or Rules forming part thereof which affect the benefits assured under this policy shall take effect only if the said amendment is approved by the corporation. The Trust Deed dated 3rd May, 1991 took the place of the earlier Trust Deed dated 24th april, 1991. The amendment sought to be incorporated in the Deed of Variation dated 2nd January, 2007 was approved by the Commissioner of Income Tax, Kolkata-III, Kolkata by a letter dated 16-17th of October, 2008, in terms of the master policy. Clause 6(XIX) of the Variation Deed dated 2nd January, 2007 indicates the normal retirement date as 58 years. 16. The Charter of Demand submitted on behalf of the employees before the company on 13th april, 1996 demands issuance of formal letters of appointment to all the employees, meaning thereby that till such date, no formal individual letter of appointment was issued to the employees. 16. The Charter of Demand submitted on behalf of the employees before the company on 13th april, 1996 demands issuance of formal letters of appointment to all the employees, meaning thereby that till such date, no formal individual letter of appointment was issued to the employees. However, the Charter of Demand is silent regarding the age of superannuation of an employee. Strangely, letter of appointment was admittedly issued to the respondent on 1st September 1985 which was received by the latter. The said letter is silent with regard to the age of superannuation. The letter confirming the service of the respondent issued on 5th June, 1993 demonstrates the age of superannuation as 58 years. The receipt of the said letter by the respondent cannot be ascertained in absence of signature of the respondent in the letter. 17. Genuineness of several appointment letters issued by the authority from 1996 to 2010 is challenged by the respondent for the reason that the digits of the phone numbers in the said letters are not in conformity with the prevailing rules. For example, some of the appointment letters issued in 1996 record 8 digit phone numbers whereas 8 digit phone numbers were introduced only with effect from 1st December, 2002. according to learned counsel for the respondent, the appointment letters were manufactured subsequently for the purpose of introducing the retirement age of 58 years therein. On the question of whether the appointment letters can be relied upon in deciding the present matter, this court is of the view that the matter may be dealt with on the anvil of the entire evidence on record even without taking into account the disputed appointment letters. 18. Three notices dated 22nd June, 1993, 30th September, 1993, and 12th august, 1996 respectively were exhibited before the Learned Tribunal. The notices were issued pursuant to representation made before the management by some of the employees with regard to clarification of service terms and conditions and retirement age and state that the retirement age shall be 58 years. The petitioner submits that the notices were put up on the notice board of the company and the employees including the respondent had knowledge of the age of retirement even before amendment of the Trust Deed. Though knowledge of such notice is denied by the respondent, the notices remain uncontroverted. The petitioner submits that the notices were put up on the notice board of the company and the employees including the respondent had knowledge of the age of retirement even before amendment of the Trust Deed. Though knowledge of such notice is denied by the respondent, the notices remain uncontroverted. The resolution taken by the Board of Directors of the company in its board meeting held on 20th December, 2006 also refers to the age of retirement as 58 years. The memorandum of settlement executed by and between the petitioner and the employees on 25th October, 2005 which indicates the age of retirement to be 58 years was signed by majority of the employees including the respondent. However, the subsequent memorandums of settlement executed on 1st January, 2009 and 1st February, 2012 do not contain the signature of the respondent. None of the settlements has been challenged by the respondent or by any other employee. Therefore it can be inferred that the employees including the respondent accepted the terms of settlement laid down in at least the settlement dated 25th October, 2005. Copies of the settlements were forwarded to the authorities concerned in terms of the Rule 68 of the West Bengal Industrial Disputes Rules. 19. Section 18(1) of the Industrial Disputes act, 1947 lays down that 'a settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.' The Hon'ble Supreme Court has also observed in the judgment in Transmission Corporation (supra) that 'If the settlement had been arrived at by a vast majority of concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference made under the act merely because a small number of workers were not parties to it or refused to accept it .....................................' 20. In the case in hand, the memorandums of settlement have been signed by majority of the employees in agreement to the same and as such, can be presumed to be just and fair and is not liable to be ignored, the memorandums being binding on both the parties. 21. In the case in hand, the memorandums of settlement have been signed by majority of the employees in agreement to the same and as such, can be presumed to be just and fair and is not liable to be ignored, the memorandums being binding on both the parties. 21. The respondent has alleged violation of section 9a of the Industrial Disputes act, 1947 on the ground that no notice of change of the date of retirement which is a change in the conditions of service, was served on the employees. In dealing with this issue, the Learned Tribunal has recorded that section 9a applies to any matter specified in the Fourth Schedule which in turn, does not govern the age of retirement. 22. Section 9a of the act of 1947 is set out:- '9a. Notice of Change.- No, employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,- a) Without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or b) Within twenty-one days of giving such notice.' 23. The Fourth Schedule provides for eleven conditions of service for change of which notice is to be given. The fixation of period of service or date of retirement is not included in the Fourth Schedule, even by a process of interpretation. On the contrary, the notices issued by the company, the resolution taken by the Board of Directors and the memorandums of settlement entered into by and between the employer and the employees demonstrate in no uncertain terms that the age of retirement of the employees is 58 years. Therefore no notice was required to be issued under section 9a of the 1947 act intimating change of date of retirement [Harmohinder Singh (supra) and achyuta Charan Panda (supra)], moreso, as fixation of period of service or date of retirement is not covered under section 9a of the act or the Fourth Schedule thereof. 24. The respondent has alleged discrimination by the company as some of the employees were allowed to remain in employment even after attaining 58 years. Reference has been made to the case of an employee Sk. 24. The respondent has alleged discrimination by the company as some of the employees were allowed to remain in employment even after attaining 58 years. Reference has been made to the case of an employee Sk. Ohidur Rahaman who served with the company from 1st September, 1985 to 21st December, 2007 and retired at the age of 58 years. an agreement was entered into between the company and Mr. Rahaman on 1st January, 2008, that is, within 24 hours of his retirement, extending his service for a year till 31st December, 2008. Such extensions being prevalent in employments, this court does not find any irregularity or absurdity in the same. There is nothing on record to show that the service of any employee of the company was extended beyond the age of 58 years. Retiral benefits being granted to the employee on the date of retirement is also something which does not raise eyebrows. 25. Learned counsel for the respondent has drawn the attention of the Court to the receipt issued by Sri Rajkumar Das on 12.12.2002 receiving his retiral dues (annexure P-7 to the writ petition) which demonstrates that the tenure of service of Sri Das was from 1st September 1985 to 14th October, 2002. The said date is contrary to the tenure of service of one R.K.Das depicted at page-64 of the writ petition which shows such tenure to be 1st September, 1985 to 15th October, 2009. The receipt dated 12th December 2002 bears the signature of Rajkumar Das and is not disputed. It also cannot be ascertained whether R.K. Das and Rajkumar Das are one and the same person in absence of any further detail in regard to their identity. 26. Notice regarding age of retirement being issued in 1993, it is neither absurd nor improbable that Rajkumar Das retired at the age of 58 years in 2009. 27. The judgment relied upon by learned counsel for the respondent in Rajneesh Khajuria (supra) deals with unfair labour practice on the anvil of malice in law and malice in fact. 26. Notice regarding age of retirement being issued in 1993, it is neither absurd nor improbable that Rajkumar Das retired at the age of 58 years in 2009. 27. The judgment relied upon by learned counsel for the respondent in Rajneesh Khajuria (supra) deals with unfair labour practice on the anvil of malice in law and malice in fact. In dealing with the said issue, the Hon'ble Supreme Court has observed that Courts have to be slow in drawing conclusions holding allegation of malafide to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable interference supporting the charge of malifides will the Court record such finding. No malifide action being evident from the four corners of the decision taken by the company in the present case, the judgment cannot come to the aid of the respondent herein. 28. The judgment impugned demonstrates that the Employees' Union claimed fixation of the age of retirement at 60 years before the Learned Tribunal. The Union has in fact given a go-by to clause XVI of the master policy which declares the age of retirement to be 65 years. 29. There is no quarrel with the proposition that even a single employee can raise an industrial dispute challenging an administrative decision taken by the employer. In dealing with the scope of judicial review in such cases, the Hon'ble Supreme Court has observed in the judgment in Reepak Kansal v/s Union of India and Others reported in (2021) 9 Supreme Court Cases 251 that 'It is not normally within the domain of any Court to weigh the pros and cons of the policy or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, only where it is arbitrary and violative of any constitutional, statutory or any other provisions of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits.' 30. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits.' 30. In the instant case, no cogent ground has been made out by the respondent which brushes aside all the documents relied upon by the petitioner as manufactured and fraudulent. No action on the part of the petitioner in respect of the subject matter of the present writ petition can be said to be arbitrary or violative of any constitutional, statutory or other provision of law. On the other hand, the master policy created for a limited purpose of forming a gratuity fund for the employees can under no circumstances, override the bipartite settlement between the employer and the employees or the notices issued by or resolution of the Board of Directors of the Company, all of which declare the age of retirement as 58 years. Even if the individual appointment letters are not banked upon, the other documents relied upon by the petitioner sufficiently and adequately support the case made out by it. 31. In the premises, there is no impediment to hold that the petitioner was justified in fixing the age of retirement of the employees at 58 years and superannuation of the respondent on attaining 58 years of age is in accordance with the policy decision taken by the Company, as applicable to all the employees. as such, intervention of the Court is called for in setting aside/quashing the award impugned dated 17th June, 2016. 32. Placing reliance on the judgment of High Court of Delhi in ahuja Trading Company v/s Ramesh Chander aggarwal dated 15th December, 2021 in CM (M) 1122/2021; learned counsel for the respondent has sought dismissal of the writ petition with exemplary cost. The judgment deals with abuse of the process of the Court by dishonest litigations. The ratio decidendi of the said judgment is not applicable in the facts and circumstances of the present case. 33. In view of the above, the writ petition being W.P.O. 825 of 2016 is allowed. 34. The impugned award dated 17th June, 2016 passed by the Learned 4th Industrial Tribunal, Kolkata is set aside/quashed. 35. The ratio decidendi of the said judgment is not applicable in the facts and circumstances of the present case. 33. In view of the above, the writ petition being W.P.O. 825 of 2016 is allowed. 34. The impugned award dated 17th June, 2016 passed by the Learned 4th Industrial Tribunal, Kolkata is set aside/quashed. 35. The age of retirement of the employees of the petitioner company including the first respondent is declared as 58 years. 36. There shall however be no order as to costs. 37. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.