Bombay High Court
Bharat Textile Engineering Works, ... vs Industrial Tribunal (N.A. Athalye), ... on 27 April, 1965
JUDGMENT
1. These two applications are between the same parties. The petitioners in Special Civil Application No. 38 of 1964 are a partnership firm doing the business of engraving textile printing. A dispute between them and their workmen, respondent 2, was referred for adjudication to the industrial tribunal. The industrial tribunal made an award on 25 September, 1963. Against that award the employers have filed Special Civil Application No. 38 of 1964 while the union has filed the other Application No. 199 of 1964.
2. Sri Shah, who appears on behalf of the petitioners in the first application has raised three points. The tribunal has directed the payment of the gratuity at the rate of seven day's wages for each completed year of service, to workmen who had completed seven years' continuous service. The wages paid by the petitioners are consolidated wages. Sri Shah has contended that gratuity is ordinarily awarded on the basis of the basis wages of a worker and dearness allowance is not ordinarily taken into consideration for the purpose. He has, therefore, contended that the tribunal was wrong in directing that gratuity should be paid at the rate of seven days' wages for each completed year of service. Paragraph 18 of the award shows that tribunal was conscious of the fact that the wages which were being paid to the workmen were consolidated wages. After taking into consideration this fact it has directed the payment of gratuity at the rate of seven days' wages for each completed year of service. As the tribunal has already taken this factor into consideration in determining the amount of gratuity payable, we do not think that we can interfere with the award on this ground.
3. In Para. 28 the tribunal has directed that the management shall pay bonus to workers for the year 1961 at the rate of one-sixteenth annual basic earnings excluding overtime wages and dearness allowance, on the terms and conditions mentioned in the award. No dearness allowance was actually being paid to the workers. This direction of the tribunal, therefore, requires modification. Since we are sending back the matter on another ground, we direct that having regard to the fact that consolidated wages were being paid to the workers, the above direction that dearness allowance should be excluded from the basic earning should be suitably modified.
4. The petitioner has dismissed one of their workers, respondent 3. One of the matters referred to the tribunal was that this worker should be reinstated in the service or in the alternative he should be paid adequate compensation. The tribunal did not direct reinstatement of respondent 3. The tribunal has, however, directed that the petitioners should pay to him compensation equal to wages from the date of his dismissal to the date of publication of the award and also two months' wages in addition. Sri Shah has urged that the amount of compensation awarded is excessive, particularly having regard to the fact that respondent 3 was employed in some other firm for more than nine months. It appears that respondent 3 had stated in his evidence in cross-examination that while he had been taking odd jobs on temporary basis, he had not taken any permanent job and had not worked in any industry of similar type after termination of his service. The tribunal has observed that in fixing the amount of compensation the tribunal had taken into consideration the fact that respondent 3 had been earning some type of remuneration for the casual work he had done. Sri Shah has urged that this statement of respondent 3 is incorrect, and that respondent 3 has obtained such a large compensation by misleading the tribunal. It also appears that an application was made to the tribunal for prosecution of respondent 3 for making a false statement but the same was not granted. If respondent 3 was actually employed, then the compensation which may reasonably be awarded to him would naturally be less than what may be awarded if he was unemployed after the date of his dismissal. In any case this is one of the factors to be taken into consideration in determining the quantum of compensation. Sri Chitale has stated that he has no objection to the tribunal investigating this question. Accordingly, we set aside the part of the award which directs the payment of compensation to respondent 3 equal to his wages from the date of his dismissal to the publication of the award and two months' wages in addition. We direct that the tribunal should ascertain whether respondent 3 was employed during this period and in the light of its finding on this issue should decide how much compensation should be awarded to him for his wrongful dismissal.
5. These are all the points which are raised on behalf of the petitioners in Application No. 38 of 1964.
6. In the other application field on behalf of the workers, an objection has been taken to a direction given by the tribunal that "In case a worker is dismissed for misconduct except for having gone on strike which is not already declared illegal by competent authority he will forfeit his right to earn gratuity."
7. This direction does not appear to be in accordance with the decision of the Supreme Court. In Hindustan Times, Ltd. v. Their Workmen [1963 - I L.L.J. 108 at 118] the Supreme Court has observed :
"It has been pointed out by this Court in more than one case that having regard to the nature of gratuity it will not be proper to deprive an employee of the gratuity earned by him because of his dismissal for misconduct and the proper provision to make in this connexion is that where an employee is dismissed for misconduct which has resulted in financial loss to the employer the amount lost should be 'deducted from the amount of gratuity due."
8. In view of this and other decisions of the Supreme Court, we set aside the above direction given in Para. 21 of the award that "In case a worker is dismissed for misconduct except for having gone on strike which is not already declared illegal by competent authority he will forfeit his right to earn gratuity,"
and direct that the tribunal should insert a provision in the gratuity scheme on the lines suggested by the Supreme Court.
9. In the result, therefore, we modify the award made by the industrial tribunal in respect of the matters referred to above and remand the matters to the tribunal to hear the parties and thereafter make a fresh award in regard to these matters in the light of the direction contained in this judgment. The tribunal should dispose of the matter as soon as possible.
10. No order as to costs.