SHALIMAR PAINTS Vs. 8TH INDUSTRIAL TRIBUNAL
LAWS(CAL)-1976-7-26
HIGH COURT OF CALCUTTA
Decided on July 27,1976

Shalimar Paints Appellant
VERSUS
8Th Industrial Tribunal Respondents




JUDGEMENT

R.M.DUTTA,J. - (1.)The petitioner -company was incorporated in 1902. Formerly it was being managed by their managing agents Messrs. Turner Morrison and Co. and during that time the company was having its registered office at the office of the said managing agents at No. 6, Lyons Range, Calcutta. The company also had its factory at Goabaria in Howrah. The petitioner at that time was a licensee under the said managing agents at No. 6, Lyons Range. Since the termination of the managing agency agreement in 1963 the petitioner vacated the said office accommodation sometime in February, 1963 and on 1st March, 1963 the company shifted its entire business or undertaking from No. 6, Lyons Range, Calcutta to its head office at Goabaria in Howrah. The sales division of the company was shifted to No. 13, Cambc Street, Calcutta.
(2.)AT all material time and even prior to the petitioner -company's shifting its sales office to Camac Street, Calcutta, the respondent Ananga Mohan Ash was an employee at the office at Lyons Range under the petitioner. In 1961 when the petitioner -company shifted its sales department to Camac Street, Ash was posted at the Camac Street office on the same terms, conditions and emolument which he was enjoying before. In fact, Ash was an old employee of the petitioner -company and he was serving the petitioner -company for about 24/25 years from row. Ash was also a high official of the trade union connected with this company.
On 9th April, 1964 Ash received a letter from the petitioner requiring him to work at its marine godown at the petitioner's Kidderpore dockyard. This marine godown was established after Ash joined the petitioner as an employee On 16th April, 1964 Ash asked for 10 days' time to consider the matter and also requested the petitioner to cancel or rescind the order. The petitioner thereupon granted extension of his transfer order on the expiry whereof he was to give report to the godown keeper at the marine godown. On 16th April, 1964 Ash wrote to the petitioner stating that the union had taken up the matter with the Labour Commissioner and requested the company to keep the said order in abeyance till the disposal of the matter by the Labour Commissioner. On 18th April, 1964 the petitioner wrote to Ash informing him that his transfer to marine godown had been deferred upto 29th April, 1964. Thereupon on 21st April, 1964 the petitioner wrote to the Labour Commissioner informing him that as requested by the Labonr Commissioner the petitioner 'kept the transfer of Sri Ananga Mohan Ash pending till 27th April, 1964'. Pursuant to the request made by the Labour Commissioner the petitioner in that letter sought to explain the position as to why the transfer was necessary. In the said letter it was stated as follows: Shri Ananga Mohan Ash joined this company on 5.11.38 as an apprentice on a salary of Rs. 7.30 np. per month and his basic salary now is Rs. 184 plus Dearness Allowance at the Bengal Chamber of Commerce rate. He has no recognised educational qualifications. Shri Ananga Mohan Ash was working in our head office at 6, Lyons Range, and was transferred to our sales office at 13, Camac Street, in March, 1963. We have transferred other clerks from our Calcutta office to our Marine and other godowns in the past. The transfer of Shri Ananga Mohan Ash will in no way affect his present emoluments and service conditions. The reasons for our transferring Shri Ananga Mohan Ash from our Calcutta office to our Marine godown at Kidderpore is: - - Due to the expansion of our Marine business we will be requiring his service at our Marine godown where he will be of more use to us than at 13 Camac Street, Calcutta. The said letter was signed by one M.S. Mackertich, Joint Divisional Manager of the petitioner. In the meantine by a petition dated 17th April 1964 Ash moved the Third Industrial Tribunal praying, inter alia, for an order for a declaration that the alleged transfer order was a case of punishment and victimisation; for a direction on the laid company to cancel and/or to rescind the order of transfer to the godown from Camac Street office and for an order to allow him to work where he has been working since March, 1963. It would appear that Ash filed another application before the said Third Industrial Tribunal for withdrawing the said petition.

(3.)ON 27th April, 1964 the time as extended by the company expired but Ash did not join the Marine godown. On 28th April, 1964 the said M.S. Mackertich, Joint Divisional Manager wrote a letter to Ash, inter alia, stating that as a very special case at the request of the Deputy Labour Commissioner the transfer in respect of Ash to the Marine godown was again deferred upto 27th April, 1964 but Ash did not report for work as directed. Thereafter the letter runs thus: The act as above alleged to have been committed by you is an act of major misconduct in so far as it amounts to wilful insubordination and disobedience to a lawful order given to you and would warrant your dismissal from our service. Accordingly you are hereby required to show cause within four days of receipt of this letter why you should not be dismissed from our service or otherwise punished. Should you fail to submit your explanation as required, the ratter will be disposed of without any further reference to you. Since the charges levelled against you are of a grave and serious nature, you are hereby suspended with immediate effect pending further proceedings. After the suspension order was issued on Anange Mohan Ash there was a strike in the office at Camac Street and it is alleged by the petitioner that its officers including one D.S.P. Lall and the said Mackertich were detained in the office room of Meckertich. The petitioner had to inform the police and the said officers were rescued by the police. On the next day also there was a demonstration and shouting of slogans, etc. Thereafter on 1st May, 1964 a second charge sheet was submitted to show cause why Ananga Mohan Ash would not be dismissed from service. The same runs as follows: Our Ref. 770. Dated lit May, 1964. Shree Ananga Mohan Ash, 1/48, Sree Colony, Calcutta -40. Dear Sir, Further to our letter of charge Ref. No. 759 dated 28th April, 1964 you were suspended pending enquiry but in defiance of the order of suspension you continued to remain in office on 28th April. 1964 and you also entered the office on 29th April, 1964 and 30th, April, 1964. It has also been reported that on 28th April. 1964 at about 10 -30 a.m. you incited other employees to leave their place of work congregate in the corridor within the office premises and shouted slogans. You incited other members of the clerical and subordinate staff of Calcutta Sales Office to illegally confine the joint Divisional Manager in his office from 10 -30 a.m. to 2 -30 p in. and you also told Mr. D. S P. tall not to leave his office. You incited other employees again on the same day to confine the three Managers in Mr. Jackertich's room from 3 -30 p.m. to 5 -30 p.m.. That on 28th April, 1964 you physically pushed Mr. H.B Singh a sales assistant of this office and prevented him from packing up his brief case. On the 29th April, 1964 yon similarly incited the employees, to stage on illegal stay -in -strike. You delivered inflamatory and derrogatory speeches within the office premises villifying the management and the company. On the.20th April, 1964 you again incited other members of the clerical and subordinate staff to continue illegal stay -in -strike and addressed a meeting within the office premises at 9 -45 a.m.. The acts as above alleged to have been committed by you are acts of serious and major misconduct in so far as they are subversive of discipline and peace and would warrant your dismissal from our service. Accordingly you are hereby required to show cause within three days of receipt of this letter why you should not be dismissed from our service or otherwise punished. Should you fail to submit your explanation as required the matter will be disposed of without any further reference to you. Yours faithfully, for Shalimar Paints Ltd. Sd. M.S. Mackertich, Joint Divisional Manager. On the same day a Joint conference was held in the presence of the representives of the petitioner -company and of the Bengal Chamber of Commerce and the representatives of the employees anion. la tail meeting amongst others the company was represented by G.J.S. Bindra who was later on appointed as the enquiry officer to enquire into the charges levelled against Ananga Mohan Ash. At the said meeting the following decision was reached: 1. The union will advise all their employees to resume normal work in the Camao Street office and the Head office immediately. 2. Shri Ananga Mohan Ash will submit explanations to the charge sheets to the management as early as possible. On receipt of his explanations the company will give due consideration to his explanations and communicate their decision as expeditiously as possible. 3. The company will not take any action against the employees of Camac Street office and hrad office for the demonstration and the work stoppage as a gesture to enable the employees to resume normal work. 4. The employees agree to make up all arrear work resulting from stoppage of work within a week.
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