Case: India General Navigation and Railway Company, Limited Vs. Brojolal Chakraborty

Gajendragadkar, J.1. This is an appeal by special leave by the India General Navigation and Railway Company, Ltd. (hereinafter called the appellant), against the award passed by the Sixth Industrial Tribunal, West Bengal, directing it to allow Brojolal Chakraborty (hereinafter called the respondent) to continue in its services as if there had been no break and to pay full wages for the entire period from 1 July, 1955, within fifteen days of the publication of the award.2. The industrial dispute which led to this award arose in this way. The appellant is a company incorporated in England under the English Companies Act; and it carries on, inter alia, business of overhauling and repairing inland river steamships, launches, barges, etc. For the purpose of carrying out its business the appellant maintains a dockyard amongs other places at Rajabagan, Calcutta, which is known as the Rajabagan Dockyard. At this dockyard 3, 300 workmen are employed by the appellant.3. The appellant had submitted its draft standing orders in accordances with the provisions of Industrial Employment (Standing Orders) Act, 1946 and the same had been duly certified by the certifying officer. One of the said standing orders dealt with the question of retirement; and it provided that the workmen employed by the appellant shall retire from the services of the appellant on reaching the stipulated age or on completion of the stipulated number of years service whichever came first in accordance with an agreement to be entered into by the appellant with the recognized registered trade union known by the name of India General Navigation and Railway Employees; Union. This standing order, however, left it to the discretion of the appellant to offer an extension to its employees beyond the age of superannuation, and it further laid down that, in the absence of any agreement, the workmen shall retire on reaching the age of 55 years subject to the extension at the companys discretion.After this standing order was certified, by exchange of correspondence between the appellant and the recognized union, an agreement was reached on 28 December, 1953, by which it was settled that workmen should retire on completion of 37 years of service or on reaching 60 years of age whichever would come first. This agreement was the result of settlement between the appellant and the recognized union. Thereafter, this rule was enforced by the appellant and the workmen were retired under it.4. On 23 March 1954, a further agreement was reached between the appellant and the recognized union by which it was agreed to appoint a committee consisting of the manager and the head of the department concerned, the dockyard labour and welfare officer, the dockyard medical officer and the vice-president of the recognized union, to examine the ages of the workmen of the Rajabagan as dockyard as recorded in their service cards and to decide about the correctness or otherwise of the records after examining all relevant documents. It was further agreed that in all age disputes the decision given by the chairman of the committee would be final.5. The committee was accordingly appointed and it examined about 100 cases including that of the respondent. In December, 1954, the said committee, having examined the respondent and his records and the medical report, decided that the age recorded in the service card of the respondent should be reduced to 31 years as on the date of his appointment since his age was held to be 59 years 6 months on the date of the decision. The evidence about the respondents age produced before the committee was signed by the assistant secretary and the vice-president of the recognized union. In accordance with this decision the service card of the respondent was duly amended.On 15 June 1955, the respondent was told by a letter that he would be retired with effect from 1 July, 1955, on the ground of his reaching the age of 60 years. It was this order which was challenged by the respondent and which ultimately led to the present reference by the Government of West Bengal on on 25 July, 1956. The question referred to the tribunal was whether the company had forcibly retired the respondent before the age of superannuation and to what relief he would be entitled. It is on this reference that the tribunal has made the award which has given rise to the present appeal.6. It was not disputed before the tribunal, and it has not been disputed before us, that the relevant agreements under which the retirement age has been fixed by the appellant and the committee appointed to examine the question of each employees age are valid. The only contention raised is about the correctness of the decision reached by the appellant that the respondent had attained the age of superannuation on 1 July, 1955. Prima facie, it is difficult to appreciate the attack made by the respondent against the decision of the appellant on the question of respondents age. The committee considered the evidence, took into account the statement of the respondent himself and came to a definite conclusion about his age. This question is purely a question of fact; and it is not alleged that in reaching the particular conclusion either the committee or the appellant acted unfairly or mala fide.7. But, part from this consideration, the conclusion of the tribunal on the question of respondents age is patently erroneous. The tribunal was not satisfied with the documentary evidence adduced by both the parties. It throughout that it lacked precision and was even inconsistent. The tribunal then considered the evidence led by the respondent himself and it observed that the documents produced by the respondent were patently unreliable. It made reference to two of his documents in particular which showed, that, whereas, the respondent was 45 years old in 1949 he was shown as 44 years in 1950. In this state of the record the tribunal held that it was impossible to base its finding about age of the respondent on the strength of any of the documents. The tribunal also was not impressed with the evidence supplied by the certificate of the doctor. It is no doubt opinion evidence and the tribunal felt that there may be some scope for an error in medical calculations about age. The tribunal then examined the oral evidence of the respondent and observed that the respondent was not prepared to give a strictly truthful account of things and the ring of truth was missing from his testimony. In fact, the tribunal had "not a shred of doubt that the respondent had suppressed the truth. He had stated that he had not appeared before the committee when, in fact, he had appeared and made a statement before the committee."8. Even, so, the tribunal ultimately came to the conclusion that, in the absence of any other dependable evidence, there was no alternative but to accept the statement of the respondent, and so it held that he had not completed the age of 60 on 1 July, 1955. The tribunal has made no finding of its own about the age of the respondent. It has contented itself by holding that the respondent has not completed 60 years on 1 July, 1955, and on this view it has directed the appellant to treat the respondent as continuing in its service. How long the respondent should continue in service the tribunal has not cared to specify.9. We have deliberately set out in detail the findings, and the relevant observations, made by the tribunal in its award. We are satisfied that the approach adopted by the tribunal in dealing with this simple question of fact is wholly improper. Even if the evidence did not appear to the tribunal to be entirely satisfactorily, it should have made an attempt to assess it and to come to some conclusion about the age of the respondent. Having criticized the respondent in strong terms and having held that he had no regard for truth, it is difficult to understand how the tribunal felt justified in solemnly alternative its conclusion that there was no alternative but to accept the respondents the rest of the findings, this conclusion must be characterized as perverse.10. We have ourselves looked at the evidence adduced before the tribunal and we are satisfied that the statements made by the respondent and the evidence adduced by the appellant may not be quite satisfactory; in a sense, such evidence about age generally presents some infirmities. After all, this is a matter which the respondent could have easily proved and the appellant is naturally at a disadvantage. However, having regard to the whole of the evidence available on the record, we see no justification for holding that the conclusion reached by the appellant after a fair and formal enquiry about the age of the respondent can be said to be erroneous. In the result, we must hold that it is not shown that the appellant has improperly retired the respondent.

Decision:
1[ds]But, part from this consideration, the conclusion of the tribunal on the question of respondents age is patently erroneous. The tribunal was not satisfied with the documentary evidence adduced by both the parties. It throughout that it lacked precision and was evenare satisfied that the approach adopted by the tribunal in dealing with this simple question of fact is wholly improper. Even if the evidence did not appear to the tribunal to be entirely satisfactorily, it should have made an attempt to assess it and to come to some conclusion about the age of the respondent. Having criticized the respondent in strong terms and having held that he had no regard for truth, it is difficult to understand how the tribunal felt justified in solemnly alternative its conclusion that there was no alternative but to accept the respondents the rest of the findings, this conclusion must be characterized ashaving regard to the whole of the evidence available on the record, we see no justification for holding that the conclusion reached by the appellant after a fair and formal enquiry about the age of the respondent can be said to be erroneous. In the result, we must hold that it is not shown that the appellant has improperly retired the respondent.