Calcutta High Court (Appellete Side)
WP/13564W/2015 on 22 June, 2020
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Protik Prakash Banerjee
W.P. No. 13564 (W) of 2015
M/s Seth Dey and Company and Another
--v--
State of West Bengal and Others
For the petitioners : Mr. Partha Bhanja Chowdhury, Adv.,
Mr. Ravi Kumar Dubey, Adv.
For the Respondent No.3 : Mr. R.N. Majumdar, Sr. Adv.,
Mr. N. Rakshit, Adv.
Heard on : June 19, 2019, July 12, 2019 and July 29,
2019
Judgment Reserved on : July 29, 2019.
Judgment Delivered on : June 22, 2020.
PROTIK PRAKASH BANERJEE, J.:
1. WP No.13564 (W) of 2015 is a petition under Article 226 of the Constitution of India which seeks judicial review of the impugned award dated February 19, 2015 passed by the Learned First Industrial Tribunal, West Bengal in Case No. VIII--6 of 2008 between the petitioners herein and their workmen, represented by their employees' union. This was on a reference order dated January 17, 2008 passed by the Assistant Secretary to the Government of West Bengal, on the following issues: -
(i) Whether the suspension of work with effect from 17.4.06 as declared by the management of M/s Seth Dey & Co. in their shop at 7/1, Mahatma Gandhi Road, Kolkata--700 009 is justified?
(ii) To what relief, if any, are the workmen entitled?
2. Its a lengthy and comprehensive award whose judicial review has been sought. The facts of the case are clear from the recitals made in the award and I do not repeat them except to the extent required for this judgment. Suffice, that learned tribunal found fault on the side of both the parties and directed the withdrawal of the suspension of work by notice, and payment of fifty percent of the back-wages to the employees for the reasons stated in the order under challenge. The said award was published under Section 17(1) of the Industrial Dispute Act, 1947 and thus became final as against those parties who had not challenged it, under Section 17(2) of the said Act of 1947. Only the proprietress, being the petitioner, challenged the award. Therefore, it is reiterated that the findings contained in it, if to the prejudice of the respondent workmen, became final as against them.
3. Interestingly, the substantive findings recorded by the learned tribunal on facts, after recording the materials on record which impelled it to come to such conclusion, are as follows: -
"On a meticulous study as well as analysis of both oral and documentary evidence on record this much I can say that first of all proprietress of the shop is a lady, secondly, she was suffering kidney trouble and was undergoing treatment at Vellore (not disputed), thirdly on account of sufferance from illness she was not in a position to personally look after day to day business after coming to the business place. I think that taking advantage of these aspects, gradually control and possession of the shop room went under the custody of the employees. Of course, it cannot be denied that the workmen took efforts so that the business may continue as usual for the benefit of both the employees and the employer, but unfortunately they did not act honestly while they ran the business from September, 2004 till 24.02.2006 independently and they did not observe the requisite formalities and/or procedure in running the business and they acted in defiance of the instructions of the proprietress - sometimes given by the proprietress herself and sometimes by her authorized representative which resulted in financial loss as well as causing displeasure to the employer. This Tribunal can reasonably presume that after running the business independently according to their sweet will the employees mainly Muktipada Dey and Pranab Kumar Ghosal were not in a position to accept the superintendence as well as interference of the proprietress and her representative since after making over the keys of the shop room on 25.02.2006 by the employees.
In the light of the foregoing discussion it can be safely concluded that since there were no change of circumstances and no tangible improvement of the business in all respects including the atmosphere of the business place even after taking over possession of the keys by the proprietress and also in view of leaving of the job by her authorized representatives one after another being disgusted with the conduct of the employees, the proprietress had no option but to declare suspension of work. In fact, in her evidence on 05.09.2013 she has demonstrated that as she had no alternative so she had to issue suspension of work. In my view, although admittedly declaration of suspension of work on 17.04.2006 was illegal in view of the then pendency of the proceeding before the Learned 3rd Industrial Tribunal over the issue of charter of demand of the employees but at the same it has been proved from the evidence that such declaration of suspension of work/lock-out was the result of misdemeanor and conduct of the employees and as a defensive measure the proprietress having no option declared lock-out/suspension of work.
******************* I get merit in such contentions raised on behalf of the employees and in fact although the declaration of suspension of work has been found to be justified in its inception but in view of continuity of such lock-out for a prolonged period as well as running of the business at the same place i.e. 7/1 M.G. Road, since March, 2008 (as deposed on 05.09.2013 by C.W. - 1) without withdrawal of the notice of suspension and/or without lifting the notice of suspension legally and also without asking the employees to resume their duties, this Tribunal is left with no alternative than to hold that the suspension of work declared on 17.04.2006 by the proprietress is not only illegal but also in view of subsequent event of her running trading business there since March, 2008 or 29.01.2008 (as disposed by the proprietress inconsistently in her cross-examination), without lifting the lock-out legally the 'justified' lock-out has assumed the character of being 'unjustified'. I am sorry to say that the proprietress herself by her own act has led this Tribunal to hold that lock-out, although found to be justified at the time of declaration and/or at its inception, has now become unjustified."
4. The question whether a lockout is justified or not, as referred to by the appropriate government by the Memo dated January 17, 2008 is usually determined by ascertaining whether any of the fact situations mentioned in Section 22 or Section 23, and in case of commencement or declaration of a lockout, the fact situation mentioned in Section 24(1)(i), and in it is continuance of such lockout, the fact situation mentioned in Section 24(1)(ii) exists; if it does, then the lockout is, everything else being equal, not justified under statute. These, therefore, constitute jurisdictional facts, which must first be determined, in order for the decision-making process to be immune from judicial review.
5. Yet in the instant case, the learned tribunal was pleased to hold that the lockout was justified though illegal, without reference to the jurisdictional questions I have noted in paragraph 4, and which had to be determined first, in the peculiar facts and circumstances recorded by it which perhaps weighed more with the learned tribunal. After all, a damsel in distress, being a lone lady warring with a kidney problem, having to go to Vellore, leaving the business at the tender mercies of the workmen who are cheating her, and whom a receiver appointed in another lis between them has clearly indicated to be party at fault, and furthermore, political interference (we have to remember this was 2008) and getting nothing from her own business, are sufficient to moisten the heart of normal person and I am sure that is what happened here. However, this is therefore a clear decision on the first point referred to the learned tribunal and this was not challenged by the workmen, who have tried to urge that the lockout was not lawful by referring to a pending conciliation proceedings. However, in the absence of a challenge, the factual determination that the lock-out was justified is now beyond challenge.
6. It is true that the learned tribunal did advert to the pendency of a conciliation proceedings in respect of a different matter between the parties during which the lockout was declared and was pleased to hold that the suspension of work by the proprietress was therefore illegal, but this was long after recording that the lockout, in the peculiar facts and circumstances of the case, was justified. This, in my humble opinion, would not save the decision- making process. If, for the purpose of coming to a decision, the adjudicator relies upon materials which are wholly irrelevant under the statute, and then remarks that there exists another reason which is recognized by the statute, it would not save the decision-making process from being one where irrelevant materials were considered.
7. Again, the workmen have been represented in this Court by counsel. They have used an affidavit-in-opposition to the writ petition. There, the workmen have contended why according to them the lockout was justified. The allegations contained therein, if true, would show existence of such jurisdictional facts as mentioned in paragraph 4 above. Despite the aforesaid, the workmen chose not to challenge the award to the extent of the finding that the lockout was justified in its inception or initially for the conduct of the workmen. They therefore allowed the finding that the lockout was justified to achieve finality.
8. All that remains is to see whether the continuance of the lockout can be said to be illegal, with reference to the tests laid down by the Industrial Disputes Act, 1947. Section 24(1)(ii). The learned tribunal has not recorded the existence of any of the facts mentioned in Section 24(2)(ii) of the Act of 1947. I have gone through the records and it does not appear that there was any order made under Section 10(3) of the Act of 1947 and therefore the continuance of the lockout in contravention thereof, does not and cannot arise. Similarly, the learned tribunal has not found any existence of any Order under Section 10A(4A) of the Act of 1947, far less its violation in continuing the lockout. Therefore, the finding of the learned tribunal that the continuance of the lockout is illegal, is contrary to the statute, and something for which there is no material on record and is thus perverse within the meaning of law, and any conclusion based on such finding deserves to be quashed.
9. Then again, the learned tribunal has come to the conclusion that the otherwise justified lockout (that is to say, a lawful lockout) became unjustified due to its continuance. I tried to find something in the statute which would allow such a conclusion to be reached or supported, but found none.
10. I therefore find no reason to sustain the award in view of such serious lacunae in the decision-making process as aforesaid and in view of the said perversity I am compelled to quash the impugned award dated February 19, 2015 passed by the Learned First Industrial Tribunal, West Bengal in Case No. VIII--6 of 2008 between the petitioners herein and their workmen and remand the matter back to the learned tribunal for being decided afresh in accordance with law. I make it clear that the evidence already recorded shall be considered and if the tribunal feels necessary, additional evidence may be adduced. The entire proceeding ought to be concluded expeditiously, but no later than 8 months from the communication hereof. There is therefore no question of payment of back-wages. The parties shall bear their own costs.
11. Before parting with this case I record my appreciation of the registry and those involved in electronic dissemination of this judgment in real time, through the internet, because though this judgment had been prepared long since, due to the unfortunate pandemic and its consequences, until such technical expertise was brought to bear on a system of virtual court as now obtains in this Court, it could not be delivered.
(PROTIK PRAKASH BANERJEE, J.)