Calcutta High Court (Appellete Side)
Messrs. Budge Budge Floor Coverings Ltd vs Second Industrial Tribunal & Ors on 30 June, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present :
The Hon'ble Justice Soumen Sen
W. P. 15274 (W) of 2014
Messrs. Budge Budge Floor Coverings Ltd.
Vs.
Second Industrial Tribunal & Ors.
For the Petitioner : Mr. Dipak Kumar Ghosh,
Mr. Ranajay De.
For the Respondent No.5 : Mr. R. Guha Thakurta,
Mr. Santanu Deb Roy.
Heard on : 18.06.2014, 25.06.2014, 26.06.2014 Judgment on : 30th June, 2014
Soumen Sen, J.:- This writ petition is directed against the award dated 10th December, 2013 passed by the Second Industrial Tribunal, West Bengal in Case No. VIII-120/2005.
The Tribunal by the impugned award has declared the suspension of the work by the management with effect from 29th October, 2003 as unjustified. The charter of demands raised by the union prior to the suspension of the work was held to be valid and justified.
The issues specified in the order of reference for adjudication are as follows:
"1. (a) Whether the suspension of work declared by the management of M/s. Birla DLW Ltd. w.e.f. 29-10-03 is justified ?
(b) What relief, if any, are the workmen entitled to?
2. (a) Whether the demand of the Unions raised with regard to (I) Basic Wages, (ii) grade and scale of pay, (iii) VDA, (iv) Permanency, (v) Cheap canteen facility and (vi) bonus is justified?
(b) What relief, if any, are the workmen entitled to?
The proceeding before the Tribunal was initiated on the basis of a reference order being G. O. 1267-IR/IR/7L-03/98 dated 04/05.10.2005.
The Union before the Tribunal contended that the writ petitioner is a joint venture company promoted by M/s. Birla DLW Limited and presently the company is known as M/s Budge Budge Floor Coverings Limited instead of M/s. Birla DLW Limited. There are 128 industrial workers in the said company and the company was engaged in manufacturing eco-friendly linoleum floor cover of international quality. The business of the company was extremely profitable. The relationship between the employer and the employee till 2002 was cordial. The relationship became bitter after the union submitted a fresh charter of demand on May 31, 2001 after expiry of the last settlement dated 9th June, 1998. On March 31, 2001 on receipt of the charter of demand the management purposely and motivatedly with a view to avoid its liability and frustrate the legitimate demand of the workers alleged lack of viability of the unit as well as financial inability in refusing to accept the charter of demand. The union sought the intervention of the Labour Directorate for solution of the dispute. Several conciliation proceedings were held in respect of the charter of demands raised by the company, but due to the adamant attitude on the part of the company such conciliation proceedings failed. The company incorrectly represented before the Labour Commissioner that the product of the company is not much in demand in the international market. The company tried to hold the workers responsible for the alleged loss of business and not co-operating with the management to make the said unit viable. In spite of the assurance given by the union in its letter dated 15th November, 2002 to the management giving the accurate picture of the situation and giving their assurance to accede to the proposals of the management, the management failed to consider the charter of demands. The management made a false representation to the Labour Commissioner that the fortune of the company was on decline over the last seven years, and as a result whereof, it would not be possible for the management to concede to the demand of the union. On the contrary the management demanded increase in the workload as a condition precedent for considering the charter of demand. The management without any just cause or excuse forcibly stopped the work in the finishing department on 1st September, 2003.
The notice of suspension of work dated 1st September, 2003 was purportedly issued alleging that a section of the temporary workmen were disrupting the running of the department and they unauthorizedly entered in the finishing department in a group and stopped the work forcibly and unreasonably. It was as a result of such alleged activity the entire production activity of the finishing department came to a grinding halt causing substantial financial loss to the company. This was followed by the notice of suspension dated 20th October, 2003 suspending the work of the company on the allegation that the workman after getting the benefits under the settlement dated 9th June, 1998 failed to discharge their obligations under the settlement. Due to total lack of co-operation of workmen and the union and high cost of production the company was not able to compete in the international market resulting in reduction of volume of business in the export market.
The contention of the union is that the said suspension notice was issued in view of a demand notice issued by the Union to the management on 13th September, 2003. Following the said suspension order, the union by letter dated 3rd November, 2003 informed the Labour Commissioner about the illegal action of the company in suspending operation. The said suspension order was ostensibly issued citing financial inability and economic unviability, but the real reason was to deny the legitimate claim of the Union. The suspension order was used as a ruse and stratagem to frustrate the claim of the workman. In spite of several requests from the union, the management did not make any effort to settle the matter amicably. It is the contention of the union that the charter of demands raised by the Union are usual, fair and normal demand which the members of the union are entitled to receive taking into consideration the inflation and price index, inasmuch as several workers were kept on casual basis for years together and the minimum bonus of 8.33% was not given to the workers. The management deliberately did not negotiate in respect of any of the demands raised by the union. It was on the aforesaid basis that the union prayed for a declaration that the suspension dated 29th October, 2003 is illegal and unjustified and the workers are entitled to get full wages and other benefits as prayed for.
The company contested the said proceeding.
In the written statement the company questioned the maintainability of the reference and it is stated that no industrial dispute exists between the parties since the union under reference has no locus-standi and representative character and the appropriate government had no material on the basis whereof, the present reference could be made. The company alleged that no fruitful result could be arrived at during conciliation with regard to the charter of demands. Due to the adamant attitude of the union and unwillingness shown by the union to increase the working hour the company had suffered substantial loss during the year 2002-03 and such loss is continuing. As a consequence of such loss the business of the company has become unviable. It was further contended that due to unruly and indiscipline act of the workers the company was compelled to issue the suspension notice. The company denied in the written statement that bonus at the rate of 8.33% were not paid and according to them bonus had been paid in accordance with the provisions of the Payment of Bonus Act.
The contention of the management seems to be that during the several bipartite and tripartite meetings on the issue of charter of demands and grievances of the workmen, the management explained the entire sequence of events and emphasized that the issue for discussion should be viability of the company and such discussion should not be restricted only to the charter of demands of the workman. However, regrettably there appears to be a total lack of appreciation on the part of the workman and union on the gravity of the situation. The union disregarding such situation by its letter dated 18th September, 2003 claimed that the productivity and quality had improved a lot and it was the duty of the management to secure the order. Unfortunately, there has been a total lack of response from the Union and periodical settlement on charter of demands irrespective of financial position of the company could not be claimed as legitimate and bonafide right of the union. The contention of the union that securing order and facing competition even with high cost of production is the sole responsibility of the management and workmen and the union would have no role to play is in breach of their obligation and coercive. The Union has failed to realise that it would be impossible for the management to run the said unit inasmuch as such demand of the union claiming it as legitimate and bonafide without discharging their responsibility and disregarding the ground realities would be inconsistent with the last settlement dated 9th June, 1998. It was on such justification the suspension of operation notice from 29th October, 2003 at 6.00 p.m. was issued by the management.
Both the writ petitioner and the union adduced evidence in the reference proceeding.
The evidence of the two witnesses produced by the union in substance is that the declaration of the lock out was motivated and malafide. The dispute arose in the year 2001 after the union submitted one charter of demands. During discussion on the enhancement of wages the management insisted that workload would be increased if enhancement of wages made. The management insisted for increased production. The management insisted the workmen to perform the duties of (a) loading of the Container, (b) plug making (c) sample cutting and (d) Floor Safai on the basis of overtime instead of normal duties by the workmen of the mills. The Union readily accepted such proposal provided the management agrees to settle the pending Charter of Demand and communicated its decision to the management by a communication dated November 15, 2002. The management, however, failed to agree to settle the Charter of Demand. The business of the company was profitable which would be revealed from the 6th Annual report of the company for the year 2000-2001 and annual returns for subsequent periods. The contents of the letter of suspension are false and manufactured. The company deliberately did not participate before the Labour Commissioner during conciliation.
The sum and substance of the evidence of the management appears to be that such suspension order was issued due to continuous indiscipline of the concerned workmen. The Labour Commissioner was informed about the illegal activities of the workmen. After suspension work there was no scope for the company to function and prior to suspension of work and lock out the company suffered loss. The total strength of employees has drastically come down and at the time of suspension of work the total strength was less than `100. The company was not in a position to meet the charter of demands for various reasons, such as indisciplined work, sub-standard quality of products, disrupting the activity and arbitrary demands raised by the union in the charter of demand without taking into consideration the loss suffered by the company over the last several years. The witnesses, however, were unable to say if any disciplinary proceedings have been initiated against any of the members of the union for their alleged act of indiscipline. The witnesses however, admitted during cross- examination that no specific notice was issued to the workmen regarding alleged indiscipline activities and there is no document to show that any group of workers of a particular union were involved in any act of indiscipline. The Tribunal on the basis of the evidence came to the conclusion that the order of suspension of work was invalid and the charter of demands raised by the union prior to suspension of work is justified. In arriving at the said conclusion the Tribunal has taken into consideration that about 50 workmen out of 120 employees who were working at the time of suspension are the members of the said union. The union represented substantial number of workmen. In dealing with the argument that no industrial dispute was raised prior to conciliation and reference, the Tribunal held that the charter of demands precedes declaration of suspension of work and there are materials on record which suggest that the matters have been taken up by the Labour Commissioner as Conciliation Officer with regard to the said charter of demands. The Tribunal held that the existence of a dispute between the company and the union regarding charter of demands cannot be denied and the management declared lock out of the company when the conciliation proceeding with regard to the charter of demands was pending before the Conciliation Officer. Moreover, the Tribunal relied upon Exhibit 20 and 20A being the letters issued by the union to the Labour Commissioner on receipt of the suspension notice. The Tribunal has also taken into consideration that the management has failed to establish any act of insubordination or indiscipline by any members of the union inasmuch as no charge sheet of disciplinary proceeding has been initiated against any member of the said union. The Tribunal disbelieved that the act of indiscipline was one of the factors for issuance of the suspension order.
The Tribunal has also taken into consideration that the management has failed to establish convincing credible evidence about the unviability of the said unit.
The main submission of Mr. Dipak Kr. Ghosh, the learned Senior Counsel appearing on behalf of the writ petitioner is that the finding of the Tribunal that the suspension order issued by the Management is unjustified, is perverse per se. It is submitted that while the Tribunal in the award has arrived at a finding that the indiscipline acts of the workers had compelled the management to suspend operation. The finding arrived at by the Tribunal against such suspension order is ex facie bad. Mr. Ghosh has referred to the evidence of the witnesses on behalf of the management and submitted that it has been the consistent and uniform evidence of the reference witnesses that due to acts of indiscipline and non-cooperation of the workers, the management had no other alternative but to declare lockout. It is argued that the Union did not raise any dispute regarding lockout and in absence of such dispute being raised, the reference is bad ex facie. Mr. Ghosh relying upon Sindhu Resettlement Companies Ltd. Vs. Industrial Tribunal of Gujarat & Ors. reported in AIR 1968 SC 529 argued that if no dispute at all is raised by the employees with the management any request sent by them to the Conciliation Officer would only be a demand by them and not an industrial dispute between the management and their employees.
In dealing with a Charter of Demand, it is submitted that it has been the consistent evidence on behalf of the management that the workers were claiming higher wages without making any commitment to undertake more workload. Moreover, because of dwindling market situation of the product in question, the company has suffered loss. It is incumbent upon the Tribunal to consider the economic viability of the unit as well as the capacity of the management to pay in respect of the demands raised by the workmen. The Tribunal has completely misdirected its mind in taking into consideration the materials produced before the Tribunal in relation to the economic loss sustained by the petitioner as well as the lack of commitment on the part of the work force to increase the production of the unit. The commitment for higher wages or other benefits under the Charter Demand is also dependent upon the commitment of the work force to agree to the increased hour of work and more workload. In absence of such commencement on the part of the workmen, the management under the facts and situations could not have been asked to consider the said Charter of Demand. Moreover, having regard to the fact that consequent upon the order of suspension of activities at the unit has come to a standstill and there is no operation, the management cannot be asked to pay for the periods during which the operation was suspended.
Mr. Ghosh submitted that the Charter of demand cannot be considered mechanically. The workman has prayed for a fair wage structure and other service benefits. In deciding such matter in order to give effect to the demand for a fare wage, including the payment of dearness allowance to provide for adequate neutralization against the ever increasing rise in the cost of living, industrial adjudicator must always take into account the problem of the additional burden which such wage structure would impose upon the employer and ask itself whether the employer can reasonably be called upon to bear such burden. In dealing such fixed issue the financial position of the employer is required to be fairly examined. In this regard he has referred to the observation of the Hon'ble Supreme Court in Ahmedabad Millowners' Association vs. Textile Labour Association, Ahmedabad (State of Gujarat and others - interveners) reported in 1966 Vol. 1 L. L. J. 1 at page 28 where the Hon'ble Supreme Court has addressed the issue regarding fixation of fair wage which reads:-
" What has been the progress of the industry in question; what are the prospects of the industry in future; has the industry been making profits; and if yes, what is the extent of profits; what is the nature of demand which the industry expects to secure; what would be the extent of the burden and its gradual increase which the employer may have to face? These and similar other considerations have to be carefully weighed before a proper wage- structure can be reasonably constructed by industrial adjudication
- vide Express Newspapers (Private), Ltd., and another v. Union of India and others [ 1961- I L.L.J. 339]. Unusual profit made by the industry for a single year as a result of adventitious circumstances, or unusual loss incurred by it for similar reasons, should not be allowed to play a major role in the calculations which industrial adjudication would make in regard to the construction of a wage-structure. A broad and overall view of the financial position of the employer must be taken into account and attempt should always be made to reconcile the natural and just claims of the employees for a fair and higher wage with the capacity of the employer to pay it; and in determining such capacity, allowance must be made for a legitimate desire of the employer to make a reasonable profit. In this connection, it may also be permissible to take into account the extent of the rise in price-structure which may result from the fixation of a wage- structure, and the reasonableness of the additional burden which may thereby be imposed upon the consumer. That is one aspect of the matter which is rerelevant."
Per contra Mr. Rananeesh Guha Thakurta, submitted that the Tribunal was justified in passing the award in favour of the workman. It is argued that the documents exhibited in the proceeding would clearly show that the management was aware of the fact that the workman had raised the dispute with regard to the suspension of work. The suspension of work was issued as a consequence of the charter of demand. The issue of charter of demand was long pending and the union soon after the issuance of the suspension order informed the Labour Commissioner by a communication dated 6th September, 2003 that the management intentionally made such baseless allegations and levelled charges against the workman in an attempt to deny the legitimate demands of the worker.
Mr. Guha Thakurta submits that all that is essential for reference of a dispute is the raising of demand and denial of the same. If the management has the actual or constructive knowledge of the dispute, it would not be open for the management to take the plea that no written demand was made to the management before the matter is placed before the conciliation officer. The learned counsel has referred to a communication dated 24th December, 2002 by which the Labour Commissioner was requested to intervene to resolve the issue with regard to charter of demand raised by the unions employed in the unit of the company at Birlapur. In the meantime, the management had issued the suspension order on 29th October, 2003 following which the conciliation officer has called for a meeting on 24th November, 2003 covering both the charter of demands and the subsequent suspension order. The management contended before the conciliation officer as is recorded in the letter dated 22nd December, 2003 that such suspension of work order was issued since the Union had failed to give any specific proposal for improvement in production, productivity, quality etc. to enable the company to reduce the cost of production and compete in the market. In fact due to failure on the part of the conciliation officer to conclude the proceeding, the workers approached this Hon'ble Court in W. P. 10958 (W) of 2005 in which an order was passed on 21st June, 2005 directing the conciliation officer to conclude the conciliation proceeding within a period of six weeks from the date of communication of the order. This order was passed in presence of the management writ petitioner. It is submitted that at no point of time the management had raised the plea that no dispute has been raised by the union with regard to the suspension order. In fact the suspension order, according to the learned counsel is a counter-blast to the charter of demand and the same are inextricably connected.
Mr. Guha Thakurta has referred to four judgments, viz. 2006 (1) L.L.J. 1108 (Govt. of A. P. & Ors. And Mohd. Narsullah Khan), 1978 (1) LLN 340 (Shambhu Natah Gayal and Bank of Baroda, Jullendur), 1983 (47) F.L.R. 326 (Sadhu Ram And Delhi Transport Corpn.) and 21993 L.I.C.99 (M/s. Village Papers Pvt. Ltd. v. State of H. P. (FB) and submits that for coming into the existence of an industrial dispute a written demand is not a sine-qua-non unless the Statute requires it and to read into the definition the requirement of written demand for bringing into existence of an industrial dispute would tantamout to re-writing the section. Once the entire matter was considered by the conciliation officer the reference cannot fail on the pretext that no separate demand was raised challenging the order of suspension. The demand can be made to the Conciliation officer who can forward it to the management to seek its re-action and if the reaction is negative and not forthcoming, and the parties remain at loggerheads the dispute exists and reference can be made.
In order to counter some of the observation made by the learned Tribunal with regard to the indiscipline act of the workers and as pointed out by Mr. Ghosh, it is submitted that the language in the judgment may apparently show that it is a finding of the Tribunal but if the entirety of the judgment is read, it would be clear that such observations are only summing up of the evidence on behalf of the management. In fact the management has failed to establish that the workers have indulged in any indiscipline act or any of the acts on the basis whereof the management trying to justify its act of issuing the order of suspension. It is submitted that it will appear from the evidence that the management want to justify act of indiscipline and go slow tactics alleged to have been adopted by the workman which are, however, not the grounds on which such suspension order was issued. The suspension order is restricted to lack of economic viability raising from the workman. It is submitted that the management is not interested to re-open the factory and under the garb of suspension order they want to close down the unit. The management did not make any attempt to re-open the said unit for all these years inasmuch an order of suspension can only operate temporarily and not permanently. The learned counsel wonders that once the witness on behalf of the management has stated that the company at present has got no market either internal or international, then the only course open to the petitioner-company is to make a declaration of closure which they are not purposely avoiding since declaration of closure would entail payment of compensation to the workmen inasmuch as the company would be required to comply with various statutory formalities. The subsequent conduct of the company would only justify that the suspension order was issued with oblique motive and under the garb of suspension they attempted to avoid their liability. The act of the company in suspending the work is a virtual closure.
The learned counsel has also referred to the annual reports of the company for the last several years and submitted that all the earlier annual reports prior to 2003-2004 would show that the company was making a profit.
It clearly shows that the order of suspension was issued only to avoid its liability to consider the legitimate demand of the workers. This also would show that the suspension order is a consequence of the charter of demand which is pending with the management for long.
It is argued that the balance-sheet as on 31st March, 2000 when the earlier settlement had expired would show the gross profit was Rs. 51.97 lakhs and the net profit was Rs. 19.11 lakhs. The total sale of linoleum during the years was Rs. 3,36,349/- sqm. Valued at Rs. 820.53 lakhs compared to Rs.3,79,610/- sqm. Valued at Rs.658.85 lakhs reflecting increase of 20% in volume and 25% in value over the last year. The performance in the domestic market also showd considerable improvement during the year and in fact the best since the inception of the company. The situation improved in the following years excepting for the year ending 31st March, 2004 when the company recorded a loss. When the charter of demand was submitted the capability of the company to share a portion of its profit for the welfare of the workers could not have been denied. Even the balance- sheet for the year 31st March, 2004 does not call for suspension of work. There is no act of indiscipline or insubordination or belligerency or disruption of production as alleged by the management nor the management has been able to prove any of such allegations.
In view of the aforesaid, it is submitted that the findings arrived at by the Tribunal should be upheld.
It was further submitted that in judicial review of an order by the Tribunal the Writ Court is not exercising an appellate jurisdiction and the findings arrived at by the Tribunal would not ordinarily be interfered with unless it is irrational or perverse. The Writ Court would not re-appreciate the evidence and the findings of fact arrived at by the Tribunal. This submission is based on the decisions reported in 2009 (4) CHN 67 (Jagadamba Motors & Anr. Vs. State of West Bengal & Ors.) and AIR 1868 S.C. 529 (Sindhu Resettlement Corporation Ltd. Vs. Industrial Tribunal of Gujarat & Ors.).
In the aforesaid background, the lockout or suspension of work issued by the management has to be considered. The other aspect of the matter would be a justification of the Union to submit the Charter of Demand on 31st March, 2005 claiming revision in wages and other benefits.
The word "lockout" is defined in Section 2(l) of the Industrial Disputes Act, 1947. According to the definition, it means temporary closing of a place of employment or the suspension of work or the refusal by an employer to continue to employ any number of persons employed by him. This present definition omits the words "when such closing, suspension or refusal occurs in consequence of a dispute and is intended for the purpose of compelling those persons or of aiding another employer, in compelling persons employed by him, to accept the terms or conditions of, or affecting employment. According to some authors lockout was more comprehensively defined in Section 2(e) of the (Repealed) Trade Disputes Act, 1929 whose definition was based on the definition of "lockout" in the English Statute. (Section 8(b) of the (Repealed) Trade Disputes and Trade Unions Act, 1927). It was felt that the deletion of these words has left the definition with only a mutilated and truncated version of the concept of lockout. Notwithstanding the deletion of such words in the present definition, it has been judicially held that the essential character of lockout continues to be substantially the same and the effect of the deleted words may be taken into consideration while considering the justiciability of a lockout in an industry under the present definition. The Hon'ble Supreme Court in Priya Laxmi Mills Ltd. Vs. Mazdoor Mahajan Manjan reported in 1977(1) LLJ 22 at page 26 observed that in "the struggle between capital and labour, the weapon of strike is available to labour and is often used by it, so is the weapon of the lockout available to the employer and can be used by him." The act of an employer shutting down its business as a means of reprisal or as an instrument of coercion or as a mode of exerting pressure on the employees, or generally speaking, when his act is what may be called an act of belligerency may constitute lockout. Just as a 'strike' is a weapon available to the employees for enforcing their industrial demands, a 'lockout' is a weapon available to the employer to persuade by a coercive process, the employees, to see his point of view and to accept his demand. (Express Newspapers Ltd. Vs. Their Workers, 1962(2) LLJ 227 at Page 232). The lockout can, therefore, be described as antithesis to a strike. (Kairbetta Estate Vs. Rajamanickam; 1960(2) LLJ 275 at 278). [O.P. Malhotra's The Law of Industrial Disputes, 6th Edition) The motive behind the strike or lockout is to force other side to sit across and participate in the collective bargaining. The "collective bargaining" according to a learned Author R.C. Mathews is a catch-as- catch can kind of business in which disdain for such uncouthness as is labelled "duress" in more polite contract circles, has no place." (R.E. Mathews' Labour Relations and the Law, 1953).
The object of collective bargaining is to harmonize labour relation and to promote industrial harmony and peace by creating equality of bargaining power between the labour and the capital. According to International Labour Organization (ILO) collective bargaining means "negotiations about working conditions and terms of employment between an employer, a group of employers, or one or more organizations of employers on the one hand and one or more representative organizations of workers on the other, with a view to conclude agreements." [ILO, Collective Bargain : A Workers Education Manual 3 (Geneva, 1960)]. The object of any labour movement at all times is to seek an ever rising standard of living. George Meany in his article "What American Labour Want" said that collective bargaining is not a means of seeking a voice in management, but a method adopted by the trade unions in championing the cause of their members. The method of negotiation between elected representatives of workers and management has received statutory recognition in India. There cannot be any doubt that a lockout is an instrument of coercion, a weapon of oppression, a means of reprisal and a pressure valve to coarse the workmen to come to terms with the management. Therefore, the possibility of creating artificial circumstances as a justification for a declaration of a lockout cannot be ruled out. A lockout may be unjustified if it is declared with the ulterior motive of victimizing workmen for their trade union activities or it may be unjustified for having been continued for an unreasonable long time. Whether a lockout is justified or unjustified is a mixed question of law and fact. Lockouts and strikes are weapons of collective bargaining in which both the sides stand to gain or loose depending upon various circumstances. In using these weapons of collective bargaining the party using them takes its own risk in the process of pressurizing the other to concede to its demands. Thus, if a lockout is legal or justified for instance it is precipitated by certain acts on the part of the workmen themselves, the employer would not be liable to pay or the employees will not be entitled to receive wages for the duration of lockout but if the lockout is illegal, the employer would be liable to pay full wages to the workmen. Even if the lockout is legal but it is unjustified for instance, it is declared with a view to victimize the workmen, the employer will be liable to pay and the workmen will be entitled to receive full wages and other benefits for the duration of lockout. Even if a lockout is not justified for the workmen are also blameworthy and it is their conduct which brings about lockout, then there should be an apportionment of the blame between the management and the workmen (Management of Pradip Lamp Vs. Karmacharya Sangh reported in 1970(2) SCR 880: 1971(1) LLJ
538).
In the instant case, although reliance have been placed on several notices presumably put up in the Notice Board from 2001 with regard to some indiscipline acts of workmen but strangely no disciplinary action has been taken against any of the workers for any alleged act of misdemeanor or misconduct. The Annual Report disclosed in the proceeding for the last several years would show that the performances of the company was good and, in fact, the Company was earning sizable profits. The annual reports starting from the year 2000 till 2004 shows that the company was performing reasonably well and the productions have increased. The directors in the annual report recorded their appreciation for the continued co-operation and support extended to the company by the employees. Such appreciation continued till 31st March, 2003 and, thereafter, in the annual report for the year 2003-04 for the first time the workers' demand for higher compensation without corresponding improvement in production/productivity was cited as the reason for suspension of work with effect from 29th October, 2003. The appreciation of the employees for the workers for the earlier years coupled with the fact that the production have increased over the years clearly show that the said suspension order was issued with malafide object. If the charter of demand is made then the management is under an obligation to negotiate with the workers and if the negotiation fails it has to be decided by the industrial adjudicator. The demand for higher wages and other service benefits is part of the collective bargaining and such demand per se cannot be a ground for suspension of work.
The record of appreciation in all these annual reports clearly make the earlier notices alleged to have been issued and put up in the notice board on and from 17th August, 2001 as suspect documents and belie the existence of such notices. If the contents of the said earlier notices are correct, then the auditor's report would not have recorded a note of appreciation for the employees and the production would not have also increased over the years. The workers cannot be held responsible for sub-standard work if the procured raw materials are of inferior quality. Moreover, none of the alleged indisciplined activity enumerated in the alleged notices prior to the issuance of the suspension order find place or cited as a justification for issuing the suspension order which clearly shows that the real purpose behind issuance of the suspension order is the charter of demand raised by the employees. Excepting for the Annual Report for the year 2003-2004, there was no mention of any Charter of Demand submitted by the workmen which was introduced for the first time as the only ground and justification for declaration of suspension of the order. If the management is to be believed that act of indiscipline and lack of co-operation on the part of the workmen were the reasons leading to the suspension of work then the Annual Reports for the earlier years would have mentioned such facts. Moreover, it would appear from the Annual Reports that the productions have increased during the relevant period and the profits have also significantly increased in comparison to the earlier years. The Charter of Demand was submitted on May 30, 2001 after expiry of the last bipartite agreement on March 31, 2001. The balance sheet for the relevant years and even for the subsequent years, would show that the unit of the company was economically viable. If the Company had accepted the Charter of Demand in 2001 then it would have been in force for a period of three years, that is to say, upto 31st March, 2004 since the earlier charter of demand expired in March, 2001 and during that period the company performed well. There has been no perceptible change in the economic structure of the said Company during the relevant period and all that the workers have clamoured was sharing of a part of the profit with them so that they can cope up with the rising costs and may lead a better life which demand is quite legitimate. There is no evidence on record that the workers resorted to go slow tactics and/or indulged in any act of indiscipline. Willingness on the part of the workers to accept the proposal of the management to perform various duties is adequately reflected in the communication dated 15th November, 2002 addressed to the General Manager (Works) of the writ petitioner and the management never has denied the existence and receipt of such a letter. There is no cross-examination on this letter which was marked as Exhibit.9. In the background of the aforesaid facts, it appears that all such notices presumably and alleged to have been put up in the notice board during 2001 and 2002 are suspect and unreliable documents inasmuch as the witnesses on behalf of the management could not prove the contents of any of such alleged notices as he has candidly submitted that he has joined the establishment much after the suspension work order was issued.
The submission of the learned Counsel for the workmen that under the garb of suspension of work there is a virtual closure appears to be correct. There is no real or genuine cause for suspension of work inasmuch as the evidence of the company would show that the company has made no effort or attempt to reopen the unit. The company is not interested to make the unit operational. An order of suspension can only operate temporarily and not permanently.
In view of the aforesaid, this Court finds no reason to interfere with the award.
The writ application stands dismissed, however, there shall be no order as to costs.
Urgent Xerox certified copy of this judgement, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.) IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present :
The Hon'ble Justice Soumen Sen C.A.N. 6048 of 2014 Messrs. Budge Budge Floor Coverings Ltd.
Vs. Second Industrial Tribunal & Ors.
For the Petitioner : Mr. Dipak Kumar Ghosh,
Mr. Ranajay De.
For the Respondent No.5 : Mr. R. Guha Thakurta,
Mr. Santanu Deb Roy.
Heard on : 18.06.2014, 25.06.2014, 26.06.2014
Judgment on : 30th June, 2014
Soumen Sen, J.:- The petitioners have filed this application for interim relief in terms of Section 17B of the Industrial Disputes Act, 1947 for being listed on 23rd June, 2014. The writ petition was filed on 15th May, 2014. Thereafter, the matter was heard at length on 18th June, 2014 and the hearing of the writ application was concluded on 26th June, 2014. It was agreed between the parties that the main writ petition should be heard and disposed of. In view thereof, no direction for affidavit was given. The writ petitioner was not given any opportunity to file any affidavit in view of the fact that I propose to dispose of the writ petition. I have already decided the writ petition and dismissed the same by an order and judgment dated 30th June, 2014. In view of the aforesaid, no order need be passed in this application and the application stands dismissed. However, the dismissal of this petition shall not prevent the workers from enforcing the award and realizing their legal dues consequent upon the affirmation of the award.
The C.A.N. No.6048 of 2014, accordingly, stands dismissed.
(Soumen Sen, J.)