Case: M/s. Burn &amp; Company, Limited Vs. Their Workmen &amp; Others

2. It will appear from the award that some time in 1948 Refractory and Ceramic Workers Union, Raniganj, Burdwan, hereinafter referred to as the Union, was formed who represent the workmen in the present dispute. The relation between the Union an the Company had been cordial, but in course of time, trouble arose. Strikes,in work and bad conduct towards the officers of the Company followed and the situation became very grave by March, 1954.3. The Major Engineering Tribunal Award was given on the 3rd of July, 1948. On the 17th of August, 1949 an Industrial Tribunal presided over by Mr. P. R. Mukherji gave an award fixing the wage structure in the concern of the Company. This was followed by the Tripartite Agreements of1, 9,3 andwhereby several disputes were settled. Onthe workmen gave a strike notice to which the Company replied on the 1st of April, 1954. A dispute concerning the grant of bonus for the years 1951, 1952 and 1953 was referred to the 4th Industrial Tribunal onwhich became functus officio onOn the 8th of April, 1954 the strike commenced and on the 30th of April, 1954 the Company announced aIn the meantime, the Company had notified the workmen on 22nd of April 1954 against further disturbances. Efforts were made to bring about a settlement and the Company wrote to the Government of West Bengal on the 24th of December, 1954 stating the conditions on which their Works would be reopened. On the 27th of December, 1954 the Union wrote to the Government accepting the conditions of the Company for reopening the Works, including the continuation of the suspension of 7 workmen. On the 30th of December, 1954 the Company gave notice that they would reopen the Works after the withdrawal of the strike notice. On the 3rd of January, 1955 the strike notice was withdrawn and the Works reopened on the 4th of January, 1955. On the 5th of April, 1955 the present reference was made to the 5th Industrial Tribunal.

Reasoning:
In our opinion, when the Tribunal upheld the order of suspension it erred in directing that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension. In Item 18 of the Schedule no question of reinstatement was referred to the Tribunal. Prima facie, it would appear that the award of the Tribunal directing reinstatement was beyond the scope of the reference. Assuming, however, at the Tribunal could have dealt with the question of reinstatement, it seems to us that on the findings no such order should have been made. The order of the Tribunal directing the reinstatement of H. D. Roy is, accordingly setits opinion, however, the penalty of dismissal as proposed to be inflicted upon him by the Management appeared to be rather harsh and out of proportion to the offence committed by him. In his case also the Tribunal ordered reinstatement. It seems to us, as in the case of H. D. Roy, on the findings, the award declaring reinstatement was not justified and is set aside. Here also, as in the case of Roy, the question of reinstatement was not a matter referred to theevidence of Capt. T. Mookerji, the Assistant Works Manager of the Company was . .. . . . . applications were filed under S. 33 of the Act three months after this order of reference to the Tribunal". It is possible to read this evidence to mean that the Company did file applications under S. 33 before the Tribunal. Capt. Mookerji could not have made such a statement to the Tribunal if no such applications had been filed. There was noof the witness on this point. It is, however, unnecessary for us to find if such applications were filed, and if so, what orders should have been passed on them. We are satisfied that on the findings given with regard to Roy and Das Gupta, the order of reinstatement was unjustified and they are not entitled to any relief.8. The remaining persons in this group of 7 persons covered by Item 18 are S. K. Dey, R. C. Ganguly, H. P. Chakravorty, S. N. Roy and Sitaram. In the case of H. P. Chakravorty, it was admitted by Capt. Mookerji that he had taken no part in any overt act. According to the Tribunal he was suspended because his past record was bad. After having heard the submissions made on behalf of the Company and the workmen we are satisfied that the award of the Tribunal in the case of Chakravorty was correct and there is no adequate ground upon which it can be interferethe findings, the evidence was very weak to show that any overt action was taken by these four persons apart from their joining in the strike along with other workmen. The evidence did not specifically bring home any charge of incitement against these persons.It cannot be said that mere participation in the strike would justify their suspension or dismissal particularly when no clear distinction can be made between these persons and the very large number of workmen who had been taken back into service although they had participated in the strike.We do not think that the finding of the Tribunal that the order of suspension against these persons cannot be upheld is so patently erroneous in law as to justify our interference with the award of the Tribunal in this respect. The award of the Tribunal so far as these workmen are concerned is, accordingly,is apparent from the nature of the evidence that setting of bricks meant putting in rows of soft bricks taken out of the kiln, or to set them in the vata before burning. This was a kind of work which, according to the workmen concerned, they were not accustomed to and it appears that their refusal was more out of fear of doing the work wrongly than wilful disobedience of the orders of their superiors or in a spirit of defiance. The award of the Tribunal accordingly, so far as the workers Shankar and Sura are concerned, cannot be interfered with and must be upheld.It appears to us that the award of the Tribunal with reference to Items 1 and 2, except in respect of dearness allowance, is an arbitrary one based on no evidence or recognized principles. There is no finding that the existing scales of pay in fact are inadequate. On the contrary, the findings of the Tribunal would indicate that the scales of pay prevailing in Ranigunj concern of the Company are better than the scales of pay granted by the Second Engineering Tribunal. So far as the grades are concerned, no principal has been enunciated to justify the alteration of the existing grades which had been the subject of agreement in 1950. Nothing was pointed out by the Tribunal to show that between 1950 and 1955, when the present industrial dispute was referred by the Government to the Tribunal, circumstances had so altered as to make the existing scales of pay and the grades unreasonable or, inadequate to meet the conditions prevailing at the time the industrial dispute had been referred to the Tribunal. The award in this respect therefore is set aside.16. With respect to dearness allowance for all (clerks and workmen) the award of the Tribunal cannot be interfered with. The cost of living has increased since the agreements of 1950 and the finding of the Tribunal is that the scales of pay still fall short of a living wage. These grounds are sufficient justification for the award concerning the increase allowed in the dearnessthe existing leave rules are read as a whole they are more favourable to the employees of the Company thin what has been given by the award. The Company has opposed any change and we can see no justification to alter the existing rules in a fashion which on the whole acts adversely to the interest of the staff and the workers. Indeed, Mr. Vyas who had appeared for the workers and on behalf of some of the staff candidly stated that they would prefer to abide by the existing leave rules of the Company than have the change in the rules made by the Tribunal. We would, accordingly, set aside the decision of the Tribunal with reference to Item 14 of the Schedule in the order ofexisting rules, however, are consistent with the recognized principle that the acting incumbent will get as acting allowance the difference between his salary and the minimum salary of the higher post in which he is acting subject to a maximum of 25 per cent, of the incumbents basic salary. In our opinion the award in this respect is based on no recognized principle and is set aside.22. ITEM NO. 28 OF THE SCHEDULE :This is concerned with the Companys refusal of medical aid and medicines to the suspended workers and whether they were entitled to any relief on account thereof. The workmen have appealed against the award in this connection. The Tribunal was of the opinion that as the orders of suspension were justified in most of the cases no relief by way of compensation could be allowed to the suspended workers for the withholding of medical relief to them by the Company during the period of suspension.When a man is placed under suspension, as a rule, his wages including allowance etc. are withheld for the time being. In that view free medical aid and medicines could also be withheld.We cannot find anything wrong in principle in the view taken by the Tribunal and its decision in this respect must be affirmed.