Case: Rohtas Industries Ltd Vs. Brijnandan Pandey

to the appellants application under S.22 of the Act, the said workmen denied however that they were at any time engaged temporarily for temporary work: vide paras. 3 and 6 of the affidavit. Obviously they were shifting from the position which they had originally taken up. No evidence was given that the men who were employed temporarily were afterwards made permanent. They filed a schedule, marked A to their affidavit wherein they showed their period of service and the name of the factory or plant from where their duties stopped. On an examination of the schedule (Annexure A) it appears that a number of them were put on spare list when the erection work was completed some time in 1952. Annexure A therefore supports the case of the appellant company that the completion of the erection works was a gradual process, some were completed in 1950, some in 1951 and some in 1952. The first Batch of sixty-nine employees with whom we are concerned were put on the spare list between March and July 1952 and the second batch were put on the spare list in August 1952 when the relevant reaction works were completed. The finding of the Labour Appellate Tribunal with regard to the completion of erection works was vitiated by reason of the failure to take into consideration the circumstances stated above. 9. With regard to the terms of employment embodied in the temporary appointment form, the respondents case was that the appointment forms were signed as a result of the strike in 1948, it was never signed at all and the comment of learned counsel for the respondents that the appellant company have not very little force (Sic). The respondents gave no evidence in support of the allegation that the appointments forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding. None of the affidavits filed on behalf of the respondents suggested, ever in a remote way, that the appellant company were restoring to any unfair practice or victimisation in the matter of the proposed discharge. 10. Learned counsel for the respondents has contended before us that the finding of the Labour Appellate Tribunal is a finding on a question of fact, namely, whether the respondents were temporary or permanent employees. He has agreed that this Court should not interfere even though the finding is based on reasons which may not appear convincing to us. We have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection works. Secondly, learned counsel for the respondents has contended that under S.22 of the Act the Appellate Tribunal had discretion either to lift the ban or not to lift it and in a matter of discretion this Court should not interfere.It is true that this Court does not sit upon the decisions of Industrials. Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under Art. 136 of the Constitution. In our opinion, such special circumstance exists in the present case where the Labour Appellate Tribunal has not directed its mind to the question to be decided on an application under S.22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injustice. 11. The discretion which an Industries Tribunal has must be exercised in accordance with well-recognised principles. There is undoubtedly a distinction between commercial and industrial arbitration. As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining Vol. I, page 536):"Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements." A Court of Law proceeds on the footing that no power exists in the Courts to make contracts for people; and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation. We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing for no rhyme or reason whatsoever. 12. It has been necessary for us to go into facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so. The Act under which the Appellate Tribunal purported to pass its orders has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions,) Act, 1956. A question of some nicety as to the correct interpretation of S.33, Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, might have arisen if we had thought fit to remand this case. We do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under sub-s.(2) of S.33 of that Act. No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under S.22 of the Act clearly emerge from those affidavits. We are satisfiedprima faciethat the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed. The appellant company have made out aprima faciecase for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion, these contentions are correct and should be upheldLearned counsel for the Appellant has rightly pointed out that even in respect of the completion or erection works the conclusion of the Appellate Tribunal is a complete non sequitur. First of all, the Directors Report was dated 10-7-1951 though the balance sheet of the company within which the report was dealing related to the period ending on 31-10-1950. The report naturally referred to such works as were completed on or before 10-7-1951. It should be obvious that the completion of erection works must be a gradual process, and while some of the erection works might have been completed by the end of 1950 or July 1951, some were still in the process of completionUnder their terms of employment temporary employees could be moved from one work to the other and the mere circumstance that they were employed in a production department for some time, even if true, did not make them permanent employees; nor did the circumstance that they enjoyed some of the benefits of permanent employees make them permanent. These are circumstances which have been completely ignored by the Labour Appellate TribunalThe respondents gave no evidence in support of the allegation that the appointments forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding. None of the affidavits filed on behalf of the respondents suggested, ever in a remote way, that the appellant company were restoring to any unfair practice or victimisation in the matter of the proposed dischargeWe have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection worksIt is true that this Court does not sit upon the decisions of Industrials. Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under Art. 136 of the Constitution. In our opinion, such special circumstance exists in the present case where the Labour Appellate Tribunal has not directed its mind to the question to be decided on an application under S.22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injusticeWe cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing for no rhyme or reason whatsoever12. It has been necessary for us to go into facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so. The Act under which the Appellate Tribunal purported to pass its orders has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions,) Act, 1956. A question of some nicety as to the correct interpretation of S.33, Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, might have arisen if we had thought fit to remand this caseWe do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under sub-s.(2) of S.33 of that Act. No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under S.22 of the Act clearly emerge from those affidavits. We are satisfiedprima faciethat the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed. The appellant company have made out aprima faciecase for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation.