SYED JAFFER IMAM J.: - (1.) THE following Judgment of the court was delivered by
(2.) THESE two appeals havebeen heard together as they arise out of the same award given by the Fifth Industrial tribunal of West Bengall, hereinafter referred to as the tribunal, in an industrial dispute which had been referred to the tribunal by the government of West Bengal by its order dated the 5th of April, 1955, as amended by an order of that government dated the 26th of May, 1955. In Civil Appeal No. 673 of 1957 Burn & Co. Ltd., hereinafter referred to as the Company, is the appellant whereas in Civil Appeal No. 674 of 1957 the workmen of Burn & Co. Ltd., are the appellants. The order of the government of West Bengal referring the industrial dispute to the tribunal contained a schedule of 32 items which were referred for its decision. The appeal preferred by the Company is confined to Items Nos. 1, 2, 4, 5, 12, 14, 18, 19 and 27 whereas the appeal by its workmen covers Items Nos. 1, 2, 4, 12, 14 and 23. It will appear from the award that some time in 1948 Refractory and Ceramic Workers' Union, Raniganj, Burdwan, hereinafter referred to as the Union, was formed who represent the workmen in the present dispute. The relation between the Union and the Company had been cordial, but in course of time, trouble arose. Strikes, slowdown in work and bad conduct towards the officers of the Company followed and the situation became very grave by March, 1954. The Major Engineering tribunal Award was given on the 3rd of July, 1948. On the 17th of Augest, 1949 an Industrial tribunal presided over by Mr. P. R. Mukherje gave an award fixing thewage structure in the concern of the Company. This was followed by the tribunal Agreements of 9/6/1950, 31/7/1950, 28/8/1951, 9, 10/6/1952, 17/1952, 22/9/1952, 22/1/1953 and 5/3/1953 whereby several disputes were settled. On 26/3/1954, the workmen gave a strike notice to which the Company replied on the 1st of April, 1954. A dispute concerning 530 the grant of bonus for the years 1951, 1952 and 1953 was referred to the 4th Industrial tribunal on 5-4-54 which became functus officio on 25-6-56. On the 8th of April, 1954 the strike commenced and on the 30th of April, 1954 the Company announced a lock-out. In the meantime, the Company had notified the workmen on 22nd of April, 1954 against further disturbances. Efforts were made to bring about a settlement and the Company wrote to the government of West Bengal on the 24th of December, 1954 stating the conditions on which their Works would be reopened. On the 27th of December, 1954 the Union wrote to the government accepting the conditions of the Company for reopening the Works, including the continuation of the suspension of 7 workmen. On the 30th of December, 1954 the Company gave notice that: they would reopen the Works after the withdrawal of the strike notice'. On the 3rd of January, 1955 the strike notice was withdrawn and the Works reopened on the 4th of January, 1955. On the 5th of April, 1955 the present reference was made to the 5th Industrial tribunal. We propose to take up for consideration the various items specified in the schedule of the order of reference, hereinafter referred to as the Schedule, in the order in which they were presented to us on behalf of the Company during the hearing of these appeals. Items 18 and 19 of the Schedule: Item 18 relates to the suspension for an indefinite period of the following seven workmen and to what relief they are 'entitled:- 1. S. K. Dey. 2. Haradhan Roy 3. Usha Ranjan Das Gupta 4. R. C. Ganguly 5. H. P. Chakravorty 6. S. N. Roy and 7. Sitaram. Item 19 concerns the suspension for an indefinite period of the following four workmen and to what relief they are entitled: 1. Bansdev 2. Ghutur 3. Shanker, and 4. Sura. In this appeal we are not concerned with the case of Bansdev and Ghutur Of the 7 workmen involved in Item 18 the finding of the tribunal was that H. D. Roy had been systematically absenting himself without permission since December, 1953 long before the strike. This workman seemed to have taken into his head that because he happened to be the General secretary of the Union he was beyond the clutches of the Company. The Union's secretary could never claim immunity from punishment for breaking discipline any more than any other worker. On receipt by the Company of information that H. D. Roy was ill the Company made enquiry from P. G. Hospital at Calcutta. He had been treated by the Company's doctor round about the 25th of December, 1953, that is to say, just after he had started absenting himself, but after that the Company was not apprised of his whereabouts which was highly irregular. There should, have been an application for leave but Roy thought that he could claim, as a matter of night, leave of absence though that might be without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the Company had placed him under suspension that was in order. On these findings, it seems to us that the tribunal erred in holding that it could not endorse the Company's decision to dispense with his services altogether. In our opinion, when the tribunal upheld the order of suspension it erred in directing that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension. In Item 18 of the Schedule no question of reinstatement was referred to the tribunal. Prima facie, it would appear that the award of the tribunal directing reinstatement was beyond the scope of the reference. Assuming, however, that the tribunal could have dealt with the question of reinstatement, it seems to us that on the findings no such order should have been made. The order of the tribunal directing the reinstatement of H. D. Roy is, accordingly set aside.
(3.) USHA Ranjan Das Gupta is another workman concerned in Item 18. With reference to him the tribunal found that he was almost in the habit of loitering outside his place of work and that without the permission of his departmental head. The correspondence on the record carried the impression to the tribunal that this workman did not care to get any permission for going out. He had been warned but that had produced no effect upon him. He might have taken into his head that because he was the Assistant secretary of the Union, he could break discipline with impunity. In such circumstances, if he was placed under suspension, it could not be said that the Company was actuated by any improper motive to victimise him for his Union activities. The tribunal, accordingly, upheld the order of suspension. In its opinion, however, the penalty of dismissal as proposed to be 531 inflicted upon him by the Management appeared to be rather harsh and out of proportion to the offence committed by him. In his case also the tribunal ordered reinstatement. It seems to us, as in the case of H. D. Roy, on the findings, the award declaring reinstatement was not justified and is set aside. Here also, as in the case of Roy, the question of reinstatement was not a matter referred to the tribunal. In the case of H. D. Roy and Usha Ranjan Das Gupta it may be pointed out that while the Company found them and the other five persons mentioned in item 18 guilty of gross misconduct, as an industrial dispute was pending before the 4th tribunal presided over by Mr. S. G. Mukherji, the Company had filed applications under S. 33 of the Industrial Disputes Act before that tribunal for permission to dismiss them. Pending the decision of that tribunal the Company had placed these persons under suspension. The Union had contended that the Company had filed no such applications before Mr. Mukherji, but the tribunal found that some applications had been filed before Mr. Mukherji which were missing and other applications were filed rather late. Those applications which were filed before the 4th Industrial tribunal became infructuous because that tribunal became functus officio on 25-6-56. There has been a controversy between the parties before us whether the Company had filed fresh applications under S. 33 of the Industrial Disputes Act before the tribunal. The Company has asserted at various stages .that such applications had been filed and we have not been shown any positive assertion by the workmen to the contrary. The evidence of Capt. T. Mookerji, the Assistant Works Manager of the Company was "........ applications were filed under S. 33 of the Act -three months after this order of reference to the tribunal". It is possible to read this evidence to mean that the Company did file applications under S. 33 before the tribunal. Capt. Mookerji could not have made such a statement to the tribunal if no such applications had been filed. There was no cross-examination of the witness on this point. It is, however, innecessary for us to find if such applicaions were filed, and if so, what orders should iave been passed on them. We are satisfied that on the findings given with regard to Roy and Das Gupta, the Order of reintatement was unjustified and they are not intitled to any relief. The remaining persons in this group of 7 persons covered by Item 18 are S. K. Dey, R. C. Ganguly, H. P. Chakravorty, N. Roy and Sitaram. In the case of H. P. Chakravorty, it was admitted by Capt. Mookerji that he had taken no part in any overt act. According to the tribunal, he was suspended because his past record was bad. After having heard the submissions made on behalf of the Company and the workmen we are satisfied that the award of the tribunal in the case of Chakravorty was correct and there is no adequate ground upon which it can be interfered with. ;