Case: Workmen Of Dewan Tea Estate And Ors Vs. The Management

suggested or shown that their position was any better than that of the companies before us. It is also true that at the relevant time all the tea companies in Cachar in general, and the Managing Agents of the nine companies before us in particular M/s. Macneill and Barry Ltd. were trying their best to persuade the Assam Government to give them some relief in the matter of taxation. But the question which we have to decide is whether the financial position disclosed by the evidence on the record can be described as constituting a cause beyond the control of the respondent. We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rule 8(a)(i).9. Rule 8(a)(iii) which refers to temporary curtailment of production must obviously be read in the light of R. 8(a)(i) and if the case of the present lay off does not fall under R. 8(a)(i), R. 8 (a)(iii) would not improve the position.10. Mr. Banerjee has then urged that the present Standing Orders which were duly certified under the Standing Orders Act came into force in 1950, whereas S. 2(kkk) which defines a lay off was added to the Act by the Amending Act 43 of 1953 on October 24, 1953. His argument is that the Standing Orders having been certified before the definition of the lay off was introduced in the Act, the respondent is entitled to rely upon the said definition in support of the plea that the impugned lay off was justified. Basing himself on the definition of the lay off as prescribed by S. 2(kkk), Mr. Banerjee urged that this definition was wider than R. 8(a)(i) of the respondents Standing Orders and would take in the trading reasons on which he relies. We are not prepared to accept the argument that in the present case, the respondent can rely on the definition of lay off as prescribed by S. 2(kkk). It will be recalled that the Standing Orders which have been certified under the Standing Orders Act become part of the statutory terms and conditions of service between the industrial employer and his employees. Section 10(1) of the Standing Orders Act provides that the Standing Orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modifications thereof came into operation. If the Standing Orders thus become the part of the statutory terms and conditions of service, they will govern, the relations between the parties unless, of course, it can be shown that any provision of the Act is inconsistent with the said Standing Orders. In that case, it may be permissible to urge that the statutory provision contained in the Act should override the Standing Order which had been certified before the said statutory provision was enacted. Assuming without deciding that S. 2(kkk) may include the trading reasons as suggested by Mr. Banerjee, the definition prescribed by S. 2(kkk) is not a part of the operative provisions of the Act, and so, the argument that there is inconsistency between the definition and the relevant Rule of the Standing Orders does not assist Mr. Banerjees case. If there had been a provision in the Act specifically providing that an employer would be entitled to lay off his workmen for the reasons prescribed by S. 2(kkk), it might have been another matter.The only provision on which reliance has been placed is contained in S. 25C and that, as we have already seen, merely takes in the definition of lay off inasmuch as it refers to the workmen as laid off and provides the manner in which compensation would be paid to them. As alleged conflict between the definition of lay off and the substantive rule of the standing orders would not, therefore, help the respondent to contend that the definition over-rides the statutory condition as to lay off included in the certified Standing Order. Therefore, we do not think Mr. Banerjee would be entitled to contend that S. 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of S. 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found in S. 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them, (vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam, 1960-3 SCR 371 : (AIR 1960 SC 893 ). According to him, the circumstances specified in S. 2(kkk) which justify a lay off must be integrally connected with production, and, so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dispute must be governed by R. 8(a)(i) of the respondents Standing Orders.

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

Explanation:
1[ds]We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Ruleare not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by the Rule 8(a)(i) before the clause in regard in other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rulewe do not think Mr. Banerjee would be entitled to contend that S. 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of S. 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found in S. 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them, (vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam, 1960-3 SCR 371  : (AIR 1960 SC 893  ). According to him, the circumstances specified in S. 2(kkk) which justify a lay off must be integrally connected with production, and, so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dispute must be governed by R. 8(a)(i) of the respondents Standing Orders.