Protik Prakash Banerjee, J. - (1.) Wp No.13564 (W) of 2015 is a petition under Article 226 of the Constitution of India which seeks judicial review of the impugned award dated February 19, 2015 passed by the Learned First Industrial Tribunal, West Bengal in Case No. VIII-6 of 2008 between the petitioners herein and their workmen, represented by their employees' union. This was on a reference order dated January 17, 2008 passed by the Assistant Secretary to the Government of West Bengal, on the following issues: - (i) Whether the suspension of work with effect from 17.4.06 as declared by the management of M/s Seth Dey & Co. in their shop at 7/1, Mahatma Gandhi Road, Kolkata-700 009 is justified? (ii) To what relief, if any, are the workmen entitled?
(2.) Its a lengthy and comprehensive award whose judicial review has been sought. The facts of the case are clear from the recitals made in the award and I do not repeat them except to the extent required for this judgment. Suffice, that learned tribunal found fault on the side of both the parties and directed the withdrawal of the suspension of work by notice, and payment of fifty percent of the back-wages to the employees for the reasons stated in the order under challenge. The said award was published under Section 17(1) of the Industrial Dispute Act, 1947 and thus became final as against those parties who had not challenged it, under Section 17(2) of the said Act of 1947. Only the proprietress, being the petitioner, challenged the award. Therefore, it is reiterated that the findings contained in it, if to the prejudice of the respondent workmen, became final as against them.
(3.) Interestingly, the substantive findings recorded by the learned tribunal on facts, after recording the materials on record which impelled it to come to such conclusion, are as follows: - "On a meticulous study as well as analysis of both oral and documentary evidence on record this much I can say that first of all proprietress of the shop is a lady, secondly, she was suffering kidney trouble and was undergoing treatment at Vellore (not disputed), thirdly on account of sufferance from illness she was not in a position to personally look after day to day business after coming to the business place. I think that taking advantage of these aspects, gradually control and possession of the shop room went under the custody of the employees. Of course, it cannot be denied that the workmen took efforts so that the business may continue as usual for the benefit of both the employees and the employer, but unfortunately they did not act honestly while they ran the business from September, 2004 till 24.02.2006 independently and they did not observe the requisite formalities and/or procedure in running the business and they acted in defiance of the instructions of the proprietress - sometimes given by the proprietress herself and sometimes by her authorized representative which resulted in financial loss as well as causing displeasure to the employer. This Tribunal can reasonably presume that after running the business independently according to their sweet will the employees mainly Muktipada Dey and Pranab Kumar Ghosal were not in a position to accept the superintendence as well as interference of the proprietress and her representative since after making over the keys of the shop room on 25.02.2006 by the employees. In the light of the foregoing discussion it can be safely concluded that since there were no change of circumstances and no tangible improvement of the business in all respects including the atmosphere of the business place even after taking over possession of the keys by the proprietress and also in view of leaving of the job by her authorized representatives one after another being disgusted with the conduct of the employees, the proprietress had no option but to declare suspension of work. In fact, in her evidence on 05.09.2013 she has demonstrated that as she had no alternative so she had to issue suspension of work. In my view, although admittedly declaration of suspension of work on 17.04.2006 was illegal in view of the then pendency of the proceeding before the Learned 3rd Industrial Tribunal over the issue of charter of demand of the employees but at the same it has been proved from the evidence that such declaration of suspension of work/lock-out was the result of misdemeanor and conduct of the employees and as a defensive measure the proprietress having no option declared lock-out/suspension of work. ******************* I get merit in such contentions raised on behalf of the employees and in fact although the declaration of suspension of work has been found to be justified in its inception but in view of continuity of such lock-out for a prolonged period as well as running of the business at the same place i.e. 7/1 M.G. Road, since March, 2008 (as deposed on 05.09.2013 by C.W. - 1) without withdrawal of the notice of suspension and/or without lifting the notice of suspension legally and also without asking the employees to resume their duties, this Tribunal is left with no alternative than to hold that the suspension of work declared on 17.04.2006 by the proprietress is not only illegal but also in view of subsequent event of her running trading business there since March, 2008 or 29.01.2008 (as disposed by the proprietress inconsistently in her cross-examination), without lifting the lock-out legally the 'justified' lock-out has assumed the character of being 'unjustified'. I am sorry to say that the proprietress herself by her own act has led this Tribunal to hold that lock-out, although found to be justified at the time of declaration and/or at its inception, has now become unjustified.";