Calcutta High Court (Appellete Side)
M/S. Canning Farms Pvt. Ltd. And Another vs The State Of West Bengal & Others on 17 May, 2017
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 11602 (W) of 2011
M/s. Canning Farms Pvt. Ltd. and Another
Vs.
The State of West Bengal & Others.
For the petitioners : Mr. S.N. Dutta, Advocate
For the respondent no. 6 : Mr. Pradip Roy, Advocate
Ms. Shraboni Sarkar, Advocate
Heard on : 13.02.2013, 17.01.2014, 13.02.2014,
07.03.2014, 19.03.2014, 24.02.2017.
Judgement on : 17.05.2017
Sambuddha Chakrabarti, J.:
This petition is directed against an Award passed by the learned Judge of the 2nd Labour Court, Kolkata on March 24, 2011, in case no. 51 of 2003 under Section 10 (1B)(D) of the Industrial Disputes Act, (the Act, for short). By the said Award, the application of the respondent no. 6 in this writ petition was allowed, her dismissal by the writ petitioner was found to be unlawful and illegal and the company has been directed to reinstate the applicant before the Labour Court to service with full back wages and other consequential benefits admissible as per the company norms, within 60 days from the date of passing of the Award failing which the applicant was given liberty to take recourse to law.
The respondent no. 6 herein who was the applicant before the Tribunal obtained a pendency certificate from the Conciliation Officer and moved the Tribunal by filing a written statement under Section 10 (1B)(D) of the Act. The case of the applicant before the Tribunal was that she joined as a clerk in the petitioner company herein on September 19, 1998 at a monthly salary of Rs. 200/-. Subsequently, her salary was enhanced to Rs. 500/- per month. But the petitioner company without any reason reduced the same to Rs. 1800/- per month from the month of November, 1999.
The further case of the respondent no. 6 herein is that in November 2001, she was dismissed from service. She lodged a complaint with the Assistant Labour Commissioner where the stand of the writ petitioner company was that she was not an employee of the company at any time. She further alleged that the company had terminated her from service without complying with Section 25F of the Act which amounts to unlawful dismissal and unfair labour practice.
The writ petitioner company entered appearance and filed a written statement denying all the material allegations. According to the company, the applicant before the Tribunal was engaged for a period on a temporary basis and remuneration depending on the volume of work and number of days as and when the requirement for her engagement arose. For the purpose of preparation of vouchers in cases of emergency, the management of the company had given her blank vouchers duly signed by the management. According to the company, it was agreed that if the applicant was required to render service for more than eight hours for a total period of 30 days in a month, she will get Rs. 2000/- per month as her remuneration and if her service was required for less than 30 days, she will get Rs. 1800/- per month. The applicant took advantage of the signed vouchers in her custody and filled them up in her own handwriting. She further forged the signature on some vouchers to prove her contention.
Upon the pleadings, the Tribunal framed three issues. Evidence on both sides was adduced. Subsequently it passed the Award as mentioned before.
The writ petitioners have assailed the Award on the ground that the Tribunal failed to appreciate that the respondent no. 6 cannot be and should not be treated as an employee of the petitioner no. 1 as there was no letter of appointment. All vouchers were kept in blank form signed by the management of the company and the respondent no. 6 after she had been asked not to attend the office manufactured the vouchers putting the amount and the word salary on them which were all in her custody. The petitioner further alleged that the stand of the company was placed before the Tribunal but it had failed to appreciate the statement and objection of the petitioner and passed an Award totally ignoring the defence taken by it. According to them, one of the shortcomings of the Award was the failure on the part of the Labour Court to appreciate that in the absence of any appointment letter one cannot claim himself or herself as a permanent employee of any establishment. The respondent no. 6 was never issued any letter of appointment as she was engaged on temporary basis depending on the volume of the work. At the hearing of the writ petition, Mr. Dutta, the learned Advocate of the petitioners, had taken two points, viz., the direction for reinstatement with back wages was passed by the Labour Court without raising any issue; and secondly, the relationship of master and servant cannot be specifically enforced which is barred by Section 41 read with Section 14 of the Specific Relief Act, 1963.
It may be mentioned that the first issue was also agitated by the petitioners while resisting the application under Section 17B of the Act by the respondent no. 6 in this Court. By an order dated February 13, 2013, this Court had held the stand taken by the petitioner to be without any substance. It is true that no specific issue relating to direction for re-instatement or the issue whether the termination of the workmen was bad was framed by the learned Judge of the Court below. Three issues were framed, viz., whether the case was maintainable, whether there was any relationship of employer and employee between the petitioner company and the respondent no. 6 and whether the case had been barred by the law of limitation.
If we look at the nature of the allegations and counter allegations and the evidence recorded, it was more than certain that the validity of the termination was lying at the core of the entire dispute for the resolution of which the parties went to the Labour Court. The contents of the allegation and counter allegation by the respondent no. 6 as well as the petitioner company have already been mentioned above. The respondent no. 6 specifically alleged that she was dismissed by the company without any cogent and ostensible reason and the company did not pay any compensation for this abrupt, vindictive and unreasonable dismissal. She further alleged that the action of the employer manifested utter mala fide and colourable exercise the employer's right which comes within corrupt practice within the Vth Schedule of the Act. She also specifically alleged that the opposite party by taking advantage of the superior bargaining position had dismissed the respondent no. 6 without affording reasonable opportunity and thus it is against the principles of natural justice.
The entire case of the petitioner company in its written statement before the Labour Court riveted round its effort to establish the nature of the employment of the respondent no. 6, the nature of payment that was made to her and that she was not unjustly terminated. In order to establish that the action of the company was not unjust, the company tired to establish that the respondent no. 6 was never a full time employee as no letter of appointment was ever issued to her. She never used to get any salary but merely remuneration depending on the work she rendered at the office of the company. According to the company, she had althrough worked on temporary basis and when there was no work for her she was directed not to attend the office.
From a reading of the pleadings before the Tribunal one thing stands out very clearly that the legality of the termination was relevant to the main issue and the parties led evidence and went to litigation with this issue at the back of their mind. The very first issue framed by the Tribunal, viz., whether the case was maintainable, encompassed in its sweep the issue about the validity of the termination of the petitioner. The principal prayers made in the application by the respondent no. 6 were for a declaration that the abrupt dismissal was unreasonable and unlawful and to pass an order to reinstate the petitioner in service with all back dues and benefits.
These two prayers were based on the pleadings of the alleged unlawful termination of the respondent no. 6 and the alleged corrupt practice resorted to by the company. It was the case made out by the respondent no. 6 that her termination was unlawful, without complying with statutory requirements of law and against the principles of natural justice. When the Tribunal framed the issue on the maintainability of the case of the respondent no. 6, it, in fact, did frame an issue about the legality of the termination. Whether the act of the company was ultimately found to be bad or whether the respondent no. 6 had any case to sustain is a different matter. That was to depend on the nature of evidence to be led in. But from the framing of the issue about the maintainability of the case which was entirely related to unauthorized dismissal, the Labour Court cannot be said to have not taken the issue relating to legality of the dismissal into consideration.
The learned Judge has considered the pleadings of both the parties as well as the evidence adduced by them. It has been very specifically held by the learned Judge that the cross-examination of P.W. 1 did not falsify the claim of the applicant that she did not work as an Accountant-cum-Clerk of the company. The learned Judge on a factual finding had held that there is no evidence from the side of the company to show before the Court that the respondent no. 6 herein was engaged on a temporary basis. The Tribunal had recorded its satisfaction that the applicant had proved that she was a workman within the meaning of Section 2(s) of the Act and the company had totally failed to establish that there was no jural relationship between the petitioner company and the respondent no. 6 herein.
It may further be mentioned that it is upon the consideration of the materials on record that the learned Judge of the Tribunal of the court below had specifically come to the conclusion that the company did not comply with the mandatory provision of the Act and did not follow the principles of natural justice before dismissal of the respondent no. 6 from service.
The principle of framing of issues is that when in respect of material facts there are allegations by one party and they are either denied or not admitted by the other party the court will identify the issues on which trial shall proceed. While the importance of framing issues cannot be overstated, non-framing of an issue by itself may not be material when the parties know exactly the case they have made out or they have to answer. In the case of Kameswaramma Vs. Subbarao, reported in AIR 1963 SC 884, the Supreme Court observed that when the parties well-understood the two cases opposed to each other and led all the evidence in support of their contentions, the absence of an issue cannot be said to be fatal to the case or that there was a mis-trial. In the case of Sayeda Akhtar Vs. Abdul Ahad, reported in AIR 2003 SC 2985, a question cropped up whether non-framing of a particular issue was fatal to the case of the plaintiff. The Supreme Court considered the relief sought for by the plaintiff for eviction against the defendant and held that even if the Trial Court did not frame any specific issue for the same, a bare perusal of the judgment passed by the learned Trial Court will clearly demonstrate that the parties were aware thereabout and not only adduced evidence but also advanced their respective submissions in relation thereto.
The principle of law that when both parties know the respective cases they have to meet and go to trial being alive to it omission to frame issue on certain facts is not fatal, is so well established that it needs no further authority. That was not only the view expressed by the Privy Council in the case of Mitna Vs. Sayid, reported in 13 MIA 573, in more recent times also the Supreme Court had repeatedly reiterated the age-old principle on various occasions. In the case of Bhairab Chandra Nandan Vs. Ramadhir Chandra Dutta, reported in AIR 1988 SC 396, the Supreme Court had occasion to hold that though no issue was framed if the parties went to trial and adduced evidence with a certain issue in their mind, there is no need for a remand which, in other words, mean that the findings by the courts below even without an issue was found by the Supreme Court as not to be fatal to the judgment delivered.
Although, the judgments referred to above related to the civil proceedings but the principle decided therein apply with equal force to any adjudication where issues are framed and decisions are given thereon.
Thus the submission of the petitioner relating to the non- framing of the issue has no basis and it cannot be said that in any manner whatsoever the petitioner was inconvenienced or had suffered anything for the non-framing of a separate issue which for all practical purpose was included in the issues framed by the Labour Court. A careful reading of the pleadings of the parties before the court below cannot leave anybody in any manner of doubt about what the applicant was trying to establish and how the company was trying to thwart it. As a matter of fact, the pleadings of the parties were such that it inevitably leads to the decision on only one issue which has been done by the Labour Court. The Award impugned could not have operated as a surprise to either of the parties.
The Second point of submission on behalf of the petitioners is with regard to the impermissibility of specifically enforcing the relationship of master and servant. According to them, Specific Relief Act specifically contains a bar in enforcing such a relationship by way of a decree. Based on that, the petitioners tried to submit that the direction for reinstatement by the Tribunal was also not permissible and against the provisions of law.
In support of his case, Mr. Dutta relied on the case in Integrated Rural Development Agency Vs. Ram Pyare Pandey, reported in 1995 supp (2) SCC 495, for a proposition of law that the relationship between a registered society which is not constituted under any statue or which is not an instrumentality of the State, and its employee being contractual and purely of master and servant the relief of reinstatement and arrears of salary was not proper as the relationship is based on contract.
This proposition of law, based on the specific Relief Act, has hardly any application to an industrial adjudication. It is true that under Section 14 of the Specific Relief Act, 1963, a contract which runs into such minute or enormous details or which is so dependent on the personal qualification or volition of the parties or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms, cannot be specifically enforced. The principle on which specific performance of such a contract is refused is that a contract of personal service cannot be specifically enforced. If a master is unwilling to retain a servant's service, the court cannot force the master to abstain from dispensing with his services. Similarly, if the servant is unwilling to serve a master the latter cannot force the former with the aid of the Court and this is precisely why Section 41 of the said Act says that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced.
But this is the general law be followed by a Civil Court. The Act was enunciated to define and amend the law relating to certain kind of specific reliefs. It widens the sphere of the Civil Court. Even if the contract of personal service under this Act is not to be ordinarily enforced there are certain well laid down exceptions which the courts have recognized. In the case of Executive Committee of UP State Ware Housing Corporation, Lucknow Vs. Chandra Kiran Tyagi, reported in AIR 1970 SC 1244, the Supreme Court while recognizing the un-enforceability of a contract of personal service under normal circumstances recognizes certain exceptions of this rule, viz., a public servant who has been dismissed from service in contravention of Article 313 of the Constitution of India, reinstatement of a dismissed worker under the industrial law by the labour court or industrial tribunal, a statutory body when it has acted in breach of a mandatory obligation imposed by statute.
In the case of Executive Committee of Vaish Degree College Vs. Lakshmi Narain and Others, reported in AIR 1976 SC 888, a three- Judge Bench of the Supreme Court had relied on the case of UP State Ware Housing Corporation Limited (Supra) and reiterated the view expressed in that case. Even in the case so very strenuously relied upon by the petitioner i.e., Integrated Rural Development Agency (Supra), the Supreme Court had excerpted a portion of a judgment in Nandganj Srihori Sugar Co. Ltd., Raebarali Vs. Badri Nath Dexit, [(1991) 3 SCC 54] which has taken note of the exceptions to the rule which have been noted before.
The competence of the Tribunal to hear an objection to a wrongful dismissal was decided close to seven decades ago in the case of Western India Automobile Association Vs. The Industrial Tribunal, Bombay and Others, reported in 1949 (1) LLJ 111. In that case it was contended that the dispute as to reinstatement was outside the jurisdiction of the Tribunal as it was not connected with the employment or non-employment of any person. The Federal Court observed that the failure to employ or the refusal to employ are actions on the part of the employer which would be covered by the term 'employment or non-employment'. Reinstatement is connected with non-employment and, therefore, within the scope of the definition of the word. The judges of the Federal Court observed that it would be a curious result if the view is taken that though a person is discharged during a dispute within the definition of the words 'industrial disputes', but if he raises a dispute about the dismissal and reinstatement, it would be outside the scope of the definition. It was argued before the court that to invest the Tribunal with the jurisdiction to order re- employment amounts to giving it an authority to make a contract between two persons when one of them is unwilling to enter into a contract of employment at all. The Federal Court had declined to accept the interpretation on the ground that when dispute arises between employment of a person at the instance of a trade union or the trade union objects to the employment of a certain person the definition of industrial dispute would cover both these cases. In each of these cases although the employer may be unwilling to do so, there will be jurisdiction in the Tribunal to direct the employment or non-employment of the person by the employer. This is the same thing as making a contract of employment when the employer is unwilling to enter into such a contract with a particular person. Conversely, if a workman is unwilling to work under a particular employer a trade union may insist on his doing so and the dispute will be about employment of workman by the employer and thus becomes an industrial dispute subject to the Award of the Tribunal. Therefore, if the bringing about such a relationship is within the jurisdiction of the Tribunal, because such disputes are covered by the definition of the expression industrial dispute, there appears no logical ground to exclude an Award of reinstatement from its jurisdiction. The Tribunal can equally direct in a case of dismissal that an employee shall have the relation of employment with the other party although one of them is unwilling to have such relation.
In fact, Section 11-A of the Industrial Disputes Act has conferred upon the Tribunal in respect of an industrial dispute relating to the discharge or dismissal of the workman to set aside the order of discharge or dismissal and to direct reinstatement of the workman if it is satisfied that the order of discharge or dismissal was not justified.
It may be mentioned that in the case of Indian Iron and Steel Co. Ltd. Vs. Workman, reported in AIR 1958 SC 130, the Tribunal's power to interfere with the management decision, discharge or termination of the services of the workman, came up for consideration. The Supreme Court referred to the various recommendations of International Labour Organization and considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and the Tribunal should have the power, in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of workman on such terms and conditions as it thinks fit or give such other relief as the circumstances of the case may require.
It is for this purpose that Section 11A of the Act was inserted in the Industrial Disputes Act by an Amendment in the year 1971. Without this power, the Tribunal most certainly cannot do complete justice between the parties even when it feels the same to be necessary. The purpose of the legislation was to confer power on the Tribunal to grant proper relief to a workman which had been possessed before.
Thus, both the points taken by the petitioner must fail. I find no merit in the writ petition and equally nothing to interfere with the Award impugned. The Award impugned in this writ petition calls for no judicial intervention.
The writ petition is dismissed.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee