G.N.RAY,J. - (1.) This Rule is directed against Order No. 84 dated 14th December, 1977 made by the learned Judge, First Industrial Tribunal. West Bengal in Case No. VIII -98/73.
(2.) THE petitioner -company in the instant Rule challenges the validity of the said order disposing of the preliminary objections of the petitioner -company about the maintainability of the reference made by the Government of West Bengal to the said First Industrial Tribunal, for adjudication of a dispute as to whether or not the termination of services of seven workmen, viz., Ujjal Kumar Datta, Tara Sankar Lahiri, Ananda Nath Paul. Uma Sankar Pandey, Kishore Mohan Bhattacharjee, Indrani Banerjee and H.K. Bhattacharya were justified and to what relief, if any, they were entitled. The said persons at the time of dismissal, were employees of the petitioner -company M/s. Titaghur Paper Mills Company Limited. It is contended by the petitioner -company that all the said officers were members of the Sepervisory Staff and they had been discharging supervisory and/ or menagerial duties and functions of the petitioner -company at the relevant time and their terms of services were clearly governed by contracts made between the company and the said employees The petitioner company contends that there is a class of employees whose terms and conditions are governed by a set of certified Standing Orders. But there is also another class of employees known as Supervisory Staff employed by the company who are broadly designated as Assistants and particularly designated as Supervisor/Departmental -in charge, etc. and their service conditions are governed inter alia by their individual service agreements and/or terms contained in their letters of appointment -Such employees are required to accept the said terms of appointment before joining the post offered to them, The petitioner -company contends that the employees in respect of which the said reference was made to the Tribunal were members of the Supervisory Staff and their duties were to discharge functions mainly of supervisory, administrative and/or managerial nature. Although the said employees also had experience and/ or technical knowledge in the matter of production of paper but their technical knowledge and or service of technical nature rendered to the company was only incidental to their main work of supervision and/or managerial function. It is contended by the petitioner -company that the said employees were not required to do any manual work for the purpose of production as they were not allotted work for that purpose. The work of production used to be done by the workers under their supervision although on some occasions when the workers had required guidance, the said Supervisors had to solve the same The petitioner -company further contends that the said Supervisors, besides the duties aforesaid, had to direct the work or distribute the work to the workers and juniors under them and they had inter alia the power to initiate disciplinary proceedings, to recommend promotions, to allot overtime work, to make arrangements for filling up Badli vacancies and to recommend or grant leave to those subordinate to them and the said Supervisors had also participated in the planning of work for their respective sections. It is contended by the petitioner -company that in view of the nature of duties which were performed by the said employees, no one of the said supervisory employees was 'workman' as defined in Section 2(s) of the Industrial Disputes Act even though in some cases the salary drawn by one may fall below Rs. 500 per month. The petitioner -company also contends that the said Supervisors were specifically chosen for their technical attainments suitable for the nature of business undertaken by the company and for the special type of services rendered by them they were allowed such service benefits as residential quarter, medical expenses travelling allowance, personal accident insurance, leave facilities, etc. The service agreement of the said employees have been annexed to the writ petition. It is contended by the petitioner -company that Clause 7 of the Service Agreement specifically provided for 'Power to determine the Agreement' and Clause 9 provided for 'Transfer of the service of the Supervisors to any other firm or body corporate on terms equivalent to the terms contained in the agreement.' Clause 11 of the Service Agreement provided for 'Arbitration' in case of any dispute during the continuance or after determination of the Agreement by the Bengal Chamber of Commerce. The petitioner -company further contends that the Industrial Employment (Standing Orders) Act, 1946 under which certified standing Orders were framed concerning the other class of workers had no manner of application in the case of Supervisors, Superintendents Departmental -in charge, etc. It is contended by the petitioner -company that sometime in early January, 1973 the company retired one Sri P.M.G. Nayar, Stores in -charge of the Company's Mill No. 3 in Orissa on his attaining the age of superannuation in terras of the service contract and the company also passed an order of transfer of Mr. H.K. Bhattacharya who at the material time, was the Pulp Mill Incharge of No. 2 Mill of the Company. The said Sri Bhattacharya, however, did not want to comply with the directive of the management on one plea or other On 11th January, 1973, three Supervisors viz., Sri K M Bhattachirya, Sri I. Banerjee and Sri U.K. Dutta led a deputation leaving their duties during the working hours with the Supervisors before the Manager of the Company's Mill No. 2 and threatened the Manager with dire consequence They had also obstructed the day to day activities of the Mill including stoppage of production and also threatened to damage the Plant and Machinery unless the Management would concede to their demands for cancellation of the retirement order of the said Sri Nair and the transfer order of Sri Bhattacharya. On receipt of a complaint from the Manager, Mill No. 2, the company had directed the said three Supervisors to report to the Head office on the following day to explain their unruly conduct The said Supervisors, however, reiterated their demands and further stated that the order of retirement of Sri Fair was a case of victimisation, as he happened to be the President of their Association at No. 3 Mill in Orissa. As the explanation of the said three Supervisors was not found satisfactory the management after giving them hearing terminated their services. The petitioner -company states that on the same day, three other Supervisors, viz., Sri Tara Sankar Lahiri, Uma Sankar Pandey and Ananda Nath Paul of Company's Mill No. 1 similarly Jed a deputation of about 50/60 supervisors before Sri D.K. Kundu, the Chief Engineer and staged ugly demonstrations during the working hours leaving their respective works. The management of the company also gave them an opportunity to explain their conduct and their explanations were of the same nature as in the case stated hereinbefore. The services of the said three other Supervisors were also terminated for the same reason. The petitioner -company states that the termination of services of the said Supervisors was taken up by Sri Bishnu Banerjee, the then President of Bengal Provincial National Trade Union Congress with the then Labour Minister and the management was pressurised to attend the said meeting held in the chamber of the Hon'ble Labour Minister. But in the discussion the question of retirement of the said Sri Nair was never taken up. The Additional Labour Commissioner. West Bengal addressed a letter dated March 12, 1973 to the petitioner -company forwarding a recommendation as desired by the Labour Minister to the management of the company to the effect that the cases of six Supervisors whose services had been terminated would be referred to the adjudication by the Industrial Tribunal and endeavour would be made by the parties to reach an amicable settlement out of Court. It was also recommended that during the pendency of the adjudication proceeding, the said six employees would be paid 50 per cent of basic and D.A. as a special case to mitigate hardship of those employees at the request of the Labour Minister. As the said recommendation came from the Hon'ble Minister, Labour Department of the State Government the management had to reluctantly accept the same. According to the petitioner -company, at the time of termination of services the posting of the said employees were as follows; (a) Ujjal Kumar Dutta, Designation - Pulp Mill Supervisor, Mill No. 2 Salary Rs. 668.73 Pulp Mill Section, having several workmen under him He was sponsored for higher studies. (b) Tara Sankar Lahiri, Designation -Asstt Electrical Engineer, Mill No. I, Salary Rs. 1,037.47 - was in charge of Electrical and Maintenance and was to supervise the working of several workers under him. (c) Ananda Nath Paul, of Mill No. 1. Designation Chemist Supervisor -Salary Rs. 484.68 - entrusted with jobs of collecting samples of raw materials and testing the same, etc., having supervisory duties over workmen under him and doing administrative - managerial work. (d) Uma Shankar Pandey Designation - Junior Beater Supervisor, Mill No. 1. Salary Rs. 434.68 - entrusted with supervisory work like bringing sample from machine department for the purpose of size testing and shade matching, besides doing administrative/managerial jobs. (e) Kishori Mohan Bhattacharjee, Designation - Senior Assistant/Supervisor, Mill No. 2 (Machine House) being second in rank to Paper Making Superintendent having Supervisory and various administrative and managerial functions, Salary being Rs. 1,437.48. (f) Indrani Banerjee, Designation - Senior Assistant/Supervisor (Machine House), Salary Rs. 1,719.98 entrusted with almost similar jobs, like that of Sri K.M. Bhattacharjee. (g) H.K. Bhattacharjee. Designation - Pulp Mill In -charge, Salary Rs. 1,519.98 -was doing Managerial/administrative duties including supervising the work of even Supervisors. He was sent abroad for higher training. 2. It is contended by the petitioner -company that the Deputy Labour Commissioner and Conciliation Officer did not send any failure report under Section 12(4) of the Industrial Disputes Act for the purpose of making a reference under Section 10 of the Industrial Disputes Act and the State Government made the said reference to the First Industrial Tribunal West Bangal, for adjudication of the issues referred to hereinbefore The petitioner -company after receipt of the notice from the said Tribunal filed a written statement inter alia raising preliminary objections challenging the jurisdiction of the Tribunal to adjudicate upon the issues referred to it and prayed for disposal of the said preliminary objection at the first instance. It was contended by the petitioner -company that the order of reference was ex -facie illegal, bad and inoperative because the said employees were Supervisors of the company and had been acting in the Supervisory, administrative and managerial position. It was also contended that the State of West Bengal had no jurisdiction to decide as to who was workman or not within the meaning of the Industrial Disputes Act and even by consent of the parties jurisdiction for determination of the status of a workman could not be conferred on the Industrial Tribunal. The case of Sri H.K. Bhattacharya was never discussed and agitated with the petitioner -company before reference to the Tribunal and as such the reference of the case of Sri H.K. Bhattacharya was illegal. It was also contended that the Association had no locus standi to espouse the cause of the said seven Supervisors and in any event Sri H.K. Bhattacharya having proceeded against the employer in a civil suit before the City Civil Court for a declaration, he was not entitled to raise the dispute before the Industrial Tribunal and for the same cause of action he was not entitled to proceed in two forums. The petitioner -company also contended that in merits also, the orders of dismissal passed against the said Supervisory staff were quite reasonable and justified and no exception should be taken against the said orders of dismissal. The respondent No. 3, viz., The Titaghur Paper Mills Staff (Technical and Administrative) Association, however, contended in its writ n statement that the company had been persistently following an anti -labour policy and had been indulging in unfair labour practice and the said orders of termination were passed only for the purpose of victimising the said employees who had protested against the unfair labour practice of the company. In a rejoinder to the prelim nary objections made by the company the said Association also contended that there was no error or irregularity in the order of reference and the dispute with regard to Sri H.K. Bhattacharya was also raised by the Association and the Government being satisfied, his name was also included in the order or reference. On the said contentions of the company to decide at the first instance the said preliminary objections raised by the company, the learned Tribunal framed the preliminary issues, viz . (i) Whether the persons are workmen or supervisory staff? (ii) Whether the dispute which has been raised is an industrial dispute in the eye of law? (iii) There has been no conciliation proceeding in the reference. In that context the agreement to make this reference is bad and invalid. (iv) No demand was made on behalf of the workman ri H.K. Bhattacharya whose name was not there in ; the agreement. (v) Locus standi of the Association to represent the persons concerned. (vi) Binding character of the contractual agreement in that reference How the reference is tenable in view of that? It appears that eight employees of the company were examined in support of the contention of the petitioner -company. The company also produced several documents as stated in paragraph 40 of the writ petition. The said Association also referred to a number of documents and exhibits as referred to in paragraph 42 of the writ petition. The learned Industrial Tribunal by the said impugned order dated 14th December, 1977 has held that the company having admitted that all the said employees except Sri H.K. Bhattacharya were workmen under it the company cannot be permitted to agitate that they are not workmen. It has also been held by the learned Judge of the Industrial Tribunal that the main jobs of the concerned workmen were both technical and manual and although some of them had drawn a salary of more than Rs. 500 per month and were designated as Supervisors or had been differently designated, they were in fact workmen in term of the definition of ''workmen'' in the Industrial Disputes Act. It has also been held by the learned Judge that the Industrial Disputes were raised for the said termination It has been further held by learned Judge that the order of reference is not invalid even assuming that the conciliation was not properly held. The learned Judge has also held that the said union had locus standi the espouse the case of the said employees and the Government was quite competent to refer the industrial dispute for adjudication even in the case of Sri H.K. Bhattacharya. The learned judge has further held that the even assuming that the services of the said employees had been terminated in terms of the service agreement the Tribunal has jurisdiction to decide as to whether or not the authority conferred by the agreement has been rightly exercised and there was no colurable exercise of power.
(3.) MR . Chakraborty followed by Mr. Ganguli appearing for the petitioner -company has submitted that although apparently the findings made by the learned Tribunal may appear to be findings of fact on analysts of the evidences adduced by the parties, both oral and documentary, but in reality such findings are not pure findings of fact, but findings made on misconception of both facts and law. The learned Counsel for the petitioner -company further submits that the learned Tribunal has, on entire misconception of the evidences on record and also without considering material evidences, came to the finding that the employees were not purely supervisors and/or administrative officers as contended by the petitioner company, but they were 'workmen' within the meaning of the Industrial Disputes Act The learned Counsel also submits that the said employees were never treated as the work men and in the muster roll of the workmen, their names were also not borne. It is also contended by the learned Counsel of the petitioner -company that the salary and other emoluments of the said employees were not paid in the manner, such payments were made to the other class of employees, viz , the workmen In the case of the 'workmen' of the petitioner -company, the workmen were allotted their respective token number, but in respect of the employees in question they were not given any taken number because they belonged to the Supervisory and managerial staff of the company and they were never treated as workmen. It was precisely for the said purpose a separate form of agreement was entered into between the said company and the said employees fixing their terms and conditions of service. The learned Counsel for the petitioner -company submits that all these things taken together unmistakably point out that the said employees were never treated as workmen and they also knew it. But on an entire misreading of the evidences on record, an erronous finding was made by the learned Tribunal. The learned Counsel for the petitioner -company also submits that as the decision of the learned Tribunal touches the question of jurisdiction of the Tribunal to adjudicate the reference this Court can go into the questions of fact for the purpose of appreciating as to whether or not the learned Tribunal has acted within jurisdiction. For this contention a reference is made to a Bench decision of this Court made In the case of R.N. Deb v. 8th Industrial Tribunal (1975) Lab. Ind. Cases 94 Following the decision of the Supreme Court reported in 1961 -I L.L.J. 18 page 428 and also another decision of the Supreme Court reported in A.I.R. 1968 S.C page 1186, it has been held in the said Beach decision of this Court that where jurisdiction of a Tribunal depends upon a preliminary finding of fact, the High Court in exercise of writ jurisdiction is entitled to determine the correctness or otherwise of the finding made by the Tribunal upon its independent judgment. The learned Counsel, therefore, submits that as the findings made by the learned Tribunal are basic findings touching the question of jurisdiction, this Court will be quite free to assess the said findings for the purpose of determining as to whether or not such basic findings of fact conferring jurisdiction upon the Tribunal were correctly made. The learned Counsel for the petitioner company also submits that for the purpose of appreciating as to the real nature of work rendered by the said employees, the basic purpose for their appointment and the principal nature of work done by the said employees should be carefully scrutinised. The learned Counsel submits that the principal nature of the work of the said employees can be well determined from the letters of appointment and other attending circumstances as indicated hereinbefore. It is contended by the learned Counsel for the petitioner -company that the supervisors are also employees of the company but for the purpose of deciding the applicability of the Industrial Disputes Act, the salary of the supervisors and the exact nature of work mainly performed by them are to be noted. The learned Counsel also submits that the word 'supervise' and its derivatives are not of precise import and the said expression mast be construed in its proper perspective. The learned Counsel also submits that simply because the concerned employees had technical expertise and they had rendered services of technical nature, they cannot be held to be workmen. It is contended by the learned Counsel for the petitioner -company that in practice, quite a large number of employees are employed in various industries to do works of more than one of the kinds mentioned in the definition. In such cases, it will be necessary to determine under which classification an employee will fall for the purpose of finding out as to whether or not he goes out of definition of 'workman.' For that purpose a workman must be held to be employed to that work which is the main work he is required to do even though he may be incidentally doing other type of work. A person with technical qualification may well be employed in a supervisory capacity and he must be held to do supervisory work. The learned Counsel for the petitioner -company submits that it is a common experience of all that the administrative control and supervision of factories or sections thereof are exercised by persons having high technical qualifications. It is only because of such expertise and technical qualification that they are in a position to render effective supervisory and administrative control of the factory and/or the sections. It will be an incorrect proposition of law if such employees are treated as ordinary workmen simply on the footing that they also render technical labour in the process of manufacture and/or production. In this connection, the learned Counsel for the petitioner -company refers to a decision of the Supreme Court made in the case of Burmah Shell Oil Storage and Distributing Co. Ltd. v. The Burmah Shell Management Staff Association 1970 -II L.L.J. 590. The learned Counsel for the petitioner -company has submitted that on behalf of the company, senior officials of the company were examined and it was specifically stated by such officials that the said employees had rendered purely supervisory and administrative functions. Even documentary evidences in support of such contention were produced. The learned Counsel for the petitioner -company also submits that in the instant case there has not been any independent conciliation by the conciliation officer and the Hon'ble Minister for Labour Government of West Bengal, for all practical purposes hand superimposed the decision on the company to have the disputs referred to an Industrial Tribunal although the company was of the firm view that the said employees being Supervisors and/or Managers there could not have been any occasion for referring their dispute as industrial disputes. It is also contended by the learned Counsel for the petitioner -company that the conciliation officer had failed to perform his statutory duties and functions properly and even in the absence of a failure report by the conciliation officer the alleged industrial dispute was referred by the State Government. The learned Counsel has also contended that so far as Mr. H.K. Bhattacharjee is concerned, his case was also not discussed either with the conciliation officer or with the Hon'ble Minister for Labour, but simply on the basis of the letter of Sri Bishnu Banerjee, the President of the Union, the case of Mr. Bhattacharjee was also referred to the Tribunal. The learned Counsel for the petitioner -company therefore, submits that there has been a gross failure of justice so far as the petitioner -company is concerned and said preliminary objections as to the maintainability of the reference to learned Tribunal require a fresh adjudication. The learned Counsel for the petitioner -company after analysing both oral and documentary evidences at length has submitted that the evidences of the company have not been considered in its proper perspective and some of the evidences have also been overlooked and an erroneous finding has been made by the learned Tribunal.;