- (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. 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. 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. 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. 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 & Co. Ltd. vs. M/s. Williamson Magor & 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.;