Case: Northern Dooars Tea Co. Ltd Vs. Workmen of Demdima Tea Estate

to be paid to the respondents, we cannot altogether ignore their conduct at the relevant time. That is why we would like to modify the order passed by the Tribunal by directing that the respondents should be paid the 1/2 of their full wages for the period and that too, not from the 13th September to 6th October but from the 16th September to the 6th October. We are making this modification because the token strike lasted for three days and we do not think the respondents are entitled to their wages during these days. 15th September was a holiday.12. The next question which calls for our decision is about the dismissal of six workmen which was the other item of dispute referred for adjudication under the first reference. Proceedings were taken against these six workmen under Clause 13(c)(iii) of the Standing Orders, the charge against them being that they left the factory premises and caused wilful damage and loss to the companys goods. It appears that the appellant held an enquiry into these charges and as a result of this enquiry, dismissed the said six workmen. The enquiry, officer has not made a proper finding recording his conclusions at the end of the enquiry. He has drawn some notes in that behalf, but then cannot be treated as a finding recorded in the enquiry as such. That is why the Tribunal had to consider the merits of the dispute for itself. It has held that on the evidence adduced at the domestic enquiry, there was nothing to show that any wilful damage had been caused by the six workmen to the property of the appellant. The Tribunal has elaborately considered the work which was assigned to each one of these six workmen and has given satisfactory reasons for holding that the charge of causing wilful damage to the property of the appellant cannot possibly be sustained against any one of them. Besides, it has taken notice of the fact that the appellant was unable to give any reasonable or rational explanation why these six workmen were chosen out of a large number of strikers and proceeded against. If the charge had been framed against them under Cl. 14 (c) (12) of the Standing Order, it might perhaps have been a different matter. So, in the opinion of the Tribunal the action of the appellant in dismissing these six workmen was mala fide inasmuch as it was based on irrational and unreasonable discrimination. In our opinion, this finding cannot be successfully challenged by the appellant in the present appeal. In view of the infirmity in the domestic enquiry resulting from the fact that a proper finding had not been recorded, coupled particularly with the conclusion of the Tribunal that no evidence whatever was led before the domestic enquiry to show wilful damage or loss caused by the six workmen, we do not see how it is possible to contend that the conclusion of the Tribunal about the invalidity of the order of dismissal is not right. Therefore, we must hold that the Tribunal was justified in directing the reinstatement of these six workmen. In this connection, we ought to add that evidence shows that the ownership in respect of the Demdima Tea Estate had charged hands in 1960 and so, the order of reinstatement will be enforced against the transferee of the said Tea Estate who has become the owner of the property pending the present dispute.13. That takes us to the dispute with which we are concerned in Appeal No 754 of 62. As we have already seen this dispute relates to the laying off the workmen by the appellant from October 7, 1957. The appellant has filed a list Ex. 1 showing the details of this laying off and how it was lifted and giving the number of workmen with respect to whom the lay-off operated and the period for which it so operated. In other words, the facts in regard to the 1ay-off are not in dispute. The Tribunal has ordered that the lay-off compensation should be paid by the appellant to its workmen under the provisions of S. 25C of the Industrial Disputes Act. Mr. Sastri attempted to raise two contentions against this award. His first argument was that the appellant was not liable to pay any lay-off compensation because this lay-off was the result of a settlement between the parties reached on October 4, 1957 We have already noticed how this settlement brought the closure or lock- out of the garden to an end One of the terms of this settlement was that the management will reopen the garden with effect from October 7, 1957 and provide immediate employment to as many workers as possible and will lay-off the remainder of the labour force in accordance with 1aw. The argument is that since this lay-off was agreed to by the parties, no compensation can be claimed by the respondents. In our opinion, there is no substance in this argument. It is true that the parties contemplated and agreed that some workmen may have to be laid-off and so, the agreement postulated that no dispute would be raised by the workmen in regard to such a lay-off. But the parties also agreed expressly that the lay-off will be in accordance with law and that necessarily involves the payment of compensation as provided by S. 25C.14. Then Mr Sastri wanted to suggest that no compensation could be claimed for the lay-off in question under S 25E (iii). Under this provision no compensation is payable if laying-off in question is due to a strike or showing down of production on the part of workmen in another part of the establishment It is difficult to see how on the materia1 available on the record, this provision can be invoked. It is not the appellants case that the strike in one part of its concern led to the lay-off in another part, and so, S. 25E (iii) is wholly inapplicable.

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

Explanation:
0[ds]There is no doubt some force in this contention, and in dealing with the question as to whether the Tribunal was right in holding that thewas unjustified, we will no doubt bear this fact inconsidering the questions as to whether the strike of the 12th September was justified or not, it is relevant to bear in mind the reasons why the respondents decided to go on a token strike for 3 days. It appears that the action which the appellant proposed to take against six workmen and the haste with which the enquiry against them was conducted, created dissatisfaction in the minds of the respondents, and so, at a meeting held on August 30, 1957, the General Body of the Demdima Primary Umt of West Bengal Cha Shramik Union passed a resolution that they would go on a token strike from 12th to 14th September 1957, unless the appellant refrained from dismissing the said six workmen. Two things are thus clear, that the strike was going to be only in the form of a token strike and that it wasto last for only three days. It is true that a token strike need not have extended for such a long period as 3 days and the criticism made by Mr. Sastri against this resolution on that account is well founded. It is also true that if the respondents felt aggrieved by the action which the appellant proposed to take against the six workmen, a token strike was not the only remedy open to them In fact, they should have adopted the ordinary remedy of making a protest and taking the proceedings before a conciliation officer. Therefore, the token strike which the respondents adopted may be regarded as inappropriate. Even so, the grievance felt by the respondents which led to the strike cannot be dismissed as wholly unsubstantial or unjustified.9. In regard to this strike, there is, however another important fact which cannot be ignored. The Tribunal has found that the Union of the respondents served a copy of the resolution on the appellant in due course by a memo, dated September 4, 1957, and yet the appellant took no action in that behalf and merely waited until the 12th September when the strike began.from the fact that the finding in question being a finding of fact cannot be effectively challenged by the appellant in an appeal under Art. 136 of the Constitution, we are satisfied that the Tribunal was right in recording that finding. It appears that the respondents specifically averred in their written statement before the Tribunal that the notice of this resolution was served on the appellant and this allegation was not expressly denied by the appellant in its written statement, though an allegation that another notice had been served on the appellant by the respondents in respect of another dispute we expressly denied. Besides, we have the testimony of Devan Sarkar who took the oath that the letter containing the resolutions had been sent by him by ordinary post on the 4th September to the Manager according to the usual practice. He was no doubt asked some question about the number of the letter and such other details, but, in our opinion, the evidence given by the witness which appeared to the Tribunal to be satisfactory is not open to any serious criticism. The denial by Mr. Austin in this particular matter appears to us, as it did appear to the Tribunal, to be unsatisfactory. In considering Mr. Austins statement, it may be useful to refer to a letter written by Mr. Moore to Mr. Austin on September 16, 1957, (Item No. 45). This letter seems to suggest that Mr. Austin knew at least on the 11th September about the threatened strike which was to commence on the 12th September. Therefore, in deciding the question as to the merits of thedeclared by the appellant, we must proceed on the basis that the appellant had at least a weeks notice that the respondents had decided to go on a token strike for three days from the 12th September.10. Considered in the light of this fact, the attitude adopted by the appellant is open to serious criticism. If the appellant wanted to avoid ait should have immediately intimated to the respondents by writing a letter to their Union or otherwise informing them that if they went on strike, the appellant would be compelled to declare aThe appellant might also have invoked the assistance of the Conciliator in that behalf and might in any case have given a sufficient warning to the respondents about its intention to lock them out. Instead, the appellant purported to put a notice on the board at 9 A.M. on the 12th September when the strike had commenced. Having regard to the place where this notice was put up, it would be idle to contend that the appellant genuinely expected that the strikers would come and see the notice on the board and respond to it. In the circumstances, the putting up of the notice at 9 A.M. on the 12th September strikes one as an empty formality and that leads one to the conclusion that the appellant wanted the strike to commence so that it would be open to it to lock the workmen out as aTribunal took the view that in prolonging the period of thewith a view to obtain an oral assurance from each workman of his/ her good behaviour, the appellant could not be said to have acted fairly and so it held that both in declaring theand in continuing it until the 6th October the appellant acted indictively. In our opinion this conclusion of the Tribunal is well founded. In this connection, it is significant that though the workmen offered to resume work on the 16th September, the appellant did not open the gates and refused permission to the workmen to resume work. That is the effect of the evidence given by Lakhan Das (P. W. 1). His oral statement is corroborated by the communication made by the Union to the respective authorities on the 19th September 1957 (Ex. 13). Therefore, the grievance made by Mr. Sastri that the Tribunal should not have directed the appellant to pay to the respondents their wages during the period of thecannot be sustained. However in deciding the quantum of wages to be paid to the respondents, we cannot altogether ignore their conduct at the relevant time. That is why we would like to modify the order passed by the Tribunal by directing that the respondents should be paid the 1/2 of their full wages for the period and that too, not from the 13th September to 6th October but from the 16th September to the 6th October. We are making this modification because the token strike lasted for three days and we do not think the respondents are entitled to their wages during these days. 15th September was awere taken against these six workmen under Clause 13(c)(iii) of the Standing Orders, the charge against them being that they left the factory premises and caused wilful damage and loss to the companys goods. It appears that the appellant held an enquiry into these charges and as a result of this enquiry, dismissed the said six workmen. The enquiry, officer has not made a proper finding recording his conclusions at the end of the enquiry. He has drawn some notes in that behalf, but then cannot be treated as a finding recorded in the enquiry as such. That is why the Tribunal had to consider the merits of the dispute for itself. It has held that on the evidence adduced at the domestic enquiry, there was nothing to show that any wilful damage had been caused by the six workmen to the property of the appellant. The Tribunal has elaborately considered the work which was assigned to each one of these six workmen and has given satisfactory reasons for holding that the charge of causing wilful damage to the property of the appellant cannot possibly be sustained against any one of them. Besides, it has taken notice of the fact that the appellant was unable to give any reasonable or rational explanation why these six workmen were chosen out of a large number of strikers and proceeded against. If the charge had been framed against them under Cl. 14 (c) (12) of the Standing Order, it might perhaps have been a different matter. So, in the opinion of the Tribunal the action of the appellant in dismissing these six workmen was mala fide inasmuch as it was based on irrational and unreasonable discrimination. In our opinion, this finding cannot be successfully challenged by the appellant in the present appeal. In view of the infirmity in the domestic enquiry resulting from the fact that a proper finding had not been recorded, coupled particularly with the conclusion of the Tribunal that no evidence whatever was led before the domestic enquiry to show wilful damage or loss caused by the six workmen, we do not see how it is possible to contend that the conclusion of the Tribunal about the invalidity of the order of dismissal is not right. Therefore, we must hold that the Tribunal was justified in directing the reinstatement of these six workmen. In this connection, we ought to add that evidence shows that the ownership in respect of the Demdima Tea Estate had charged hands in 1960 and so, the order of reinstatement will be enforced against the transferee of the said Tea Estate who has become the owner of the property pending the presenthave already noticed how this settlement brought the closure or lockout of the garden to an end One of the terms of this settlement was that the management will reopen the garden with effect from October 7, 1957 and provide immediate employment to as many workers as possible and willthe remainder of the labour force in accordance with 1aw. Theargument is that since thiss agreed to by the parties, no compensation can be claimed by the respondents.In our opinion, there is no substance in this argument. It is true that the parties contemplated and agreed that some workmen may have to beand so, the agreement postulated that no dispute would be raised by the workmen in regard to such aBut the parties also agreed expressly that thewill be in accordance with law and that necessarily involves the payment of compensation as provided by S. 25C.Under this provision no compensation is payable ifin question is due to a strike or showing down of production on the part of workmen in another part of the establishment It is difficult to see how on the materia1 available on the record, this provision can be invoked. It is not the appellants case that the strike in one part of its concern led to thein another part, and so, S. 25E (iii) is wholly inapplicable.