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M/S. Bengal Bus Syndicate v. M.K Roy And Others Opposite Parties.
Structured Summary of the Opinion
Factual and Procedural Background
This rule under Article 227 was filed by Messrs Bengal Bus Syndicate seeking reversal of a labour Court decision dated 30 September 1964. The labour Court computed monetary benefits payable under Section 33-C(2) of the Industrial Disputes Act to its former employee, Chandra Kant Misra (opposite party No. 2), in the aggregate sum of Rs. 14,950, comprised of back wages for 18½ months (Rs. 1,850), bonus for 1961 (Rs. 100) and compensation for 10 years with annual bonus (Rs. 13,000).
The underlying facts (not disputed) are: on 30 April 1962, an industrial tribunal made an award directing the Syndicate (i) to reinstate Chandra Kant with continuity of service and (ii) to pay back dues for the period of forced unemployment within one month of publication of the award. The award was published in the Calcutta Gazette dated 19 July 1962. The Syndicate did not comply with the award.
The State Government specified the labour Court under Section 33-C(2) to compute, in monetary terms, the benefit receivable by Chandra Kant pursuant to the award by government order dated 29 February 1964. The Syndicate sought judicial review under Article 227 challenging the labour Court's computation and procedure.
Legal Issues Presented
- Whether the opposite party's failure to use the statutory form Q/2 when making the application under Section 33-C(2) places him outside the statute and invalidates the application.
- Whether the labour Court's computation of the benefit in monetary terms falls outside the scope of Section 33-C(2) (i.e., whether the Court could lawfully convert reinstatement and continuity of service into a monetary award).
- Whether the workman's failure to invoke Section 36-A (an executive power of dispensation) defeats his case under Section 33-C(2).
Arguments of the Parties
Appellant's (Bengal Bus Syndicate / Mr. Arun Kumar Dutt) Arguments
- Formality: Chandra Kant did not use the statutory form Q/2 in making his application under S.33-C(2); by not using the form he placed himself outside the statute.
- Scope: The labour Court's computation of the benefit in monetary terms is beyond the scope of S.33-C(2) and therefore unlawful.
- Section 36-A: Failure to invoke S.36-A means the opposite party's case fails (i.e., some form of executive dispensation was necessary or should have been sought).
Respondent / Labour Court / State (as represented by Mr. Bankim Dutt) — Counterarguments and Submissions
- Substance over form: Although the statutory form Q/2 was not used, all material particulars prescribed by the form were present in Chandra Kant's application written on plain paper under Rule 74(3); therefore non-use of the form does not deprive the workman of the right under S.33-C(2).
- Proper basis for computation: Reliance upon Supreme Court authorities (notably S.S. Shetty) shows that monetary computation should consider a variety of factors (terms and conditions of employment, tenure of service, possibilities of termination or retrenchment, resignation, retirement, employer's cessation, benefits of future awards etc.); the labour Court's adoption of a 10-year yardstick was a permissible rough-and-ready assessment consistent with those principles.
- Section 36-A: Any invocation of S.36-A would be for the State Government where a difficulty exists in working the Act; there was no such difficulty here and the award was plain — S.36-A was not required to be invoked by the workman.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jatindra Nath De v. Jetu Mahato & Ors., (1946) 50 Cal WN 502; AIR 1946 Cal 339 | Cited by petitioner to support an argument about statutory change and rights following amendment (pre-emption under Bengal Tenancy Act). | The Court found this authority irrelevant to the question of using form Q/2, stating that the case concerns a different statutory right and does not support depriving a workman of rights where the substance of the form's particulars is present in the application. |
| Abbot v. Minister for Lands, 1895 AC 425 | Cited on the point of accrued rights under a repealed enactment and whether such rights can be invoked after repeal. | The Court held the analogy inapposite: the Abbot case does not assist because the right of the workman here flows from a current statute (S.33-C(2)) and from non-compliance with a tribunal award, not from a right extinguished by repeal. |
| Management of Technological Institute of Textile v. Workmen, (1965) 11 Fac LR 11 (SC) | Authority for the proposition that a settlement is not binding without evidence of compliance with the relevant procedural rule (R.58 of the Punjab Rules) and formalities. | The Court observed that settlement formalities differ in importance from the non-use of form Q/2; the strictness required for a settlement cannot be equated with the workman's non-use of a form when the substantive particulars are provided. |
| S.S. Shetty v. Bharat Nidhi Ltd., 1958 SCJ 187; AIR 1958 SC 12 | Establishes that monetary valuation of reinstatement benefits should not be based simply on breach of contract or tort; sets out broad factors to consider when computing monetary value of reinstatement. | The Court treated Shetty as relevant: although Shetty shows the appellant's narrow contention (that valuation should be on contract/tort principles) is wrong, it also supports the approach that computation should take into account multiple practical factors; the labour Court's yardstick approach was acceptable under this authority. |
| Central Bank of India Ltd. v. P.S. Rajagopalan, 1964 SCJ 176; AIR 1964 SC 743 | Cited (along with Shetty) on principles governing monetary computation of benefits flowing from tribunal awards. | The Court noted these decisions went against the petitioner's narrow submission and supported the conclusion that the labour Court's computation was within permissible bounds. |
| Victor Oil Co. Ltd. v. Amar Nath Das & Others, (1961) 2 Lab LJ 113 (SC) | A Supreme Court case under S.33-C dealing with computation of monetary benefits. | The Court cited Victor Oil as an instance where the principle of interpreting S.33-C was applied by the Supreme Court; a distinction noted in Victor (workmen not permanent) was not present here. |
| Prativa Pal v. Janhabi Charan Chatterjee, (1962) 67 Cal WN 522; AIR 1963 Cal 470 | Cited in discussion of S.36-A and the nature of executive dispensation (Henry VIII–type clause discussion). | The Court relied on this authority to illustrate that S.36-A is limited and not a broad licence to be invoked by a litigant; S.36-A would be for the State where genuine difficulty exists, which was absent here. |
Court's Reasoning and Analysis
The Court addressed the three points raised by the Syndicate in turn and applied statutory interpretation principles and relevant authorities:
- On the form Q/2 issue: The Court compared the statutory form Q/2 with the actual application made by Chandra Kant under Rule 74(3) and found that "all material particulars prescribed in the form are in the application." Emphasizing the established principle that in judicial tribunals substance prevails over form, the Court rejected the contention that non-use of the prescribed form alone can deprive the workman of the statutory right conferred by Section 33-C(2). The Court treated the form as a guide or convenience rather than a condition precedent to the exercise of the statutory right.
- On the scope of S.33-C(2) and monetary computation: The Court reviewed the authorities cited (including S.S. Shetty and Central Bank v. Rajagopalan) and concluded those decisions do not support the petitioner's contention that monetary computation was outside the scope of Section 33-C(2). In particular, the Court relied on the principle that monetary valuation of reinstatement-type benefits is not to be made by mechanical application of contract or tort rules but by consideration of a range of practical factors (terms of employment, tenure, possibilities of termination or retrenchment, resignation or retirement, cessation of the employer, potential benefits from future awards, etc.). Given this flexible, practical yardstick, the labour Court's use of a 10‑year measure for compensation was not susceptible to the criticism urged by the Syndicate. The Court emphasized that a degree of approximation ("rough-and-ready justice") is appropriate in such assessments.
- On S.36-A: The Court analysed the purpose and scope of Section 36-A (an executive power to remove difficulties) and rejected the argument that the workman's omission to invoke S.36-A should defeat his case. The Court observed that S.36-A is intended to be used by the State Government where genuine difficulties or doubts exist in working the Act; it is not a provision which a private litigant must invoke to make out his claim where the award and legal position are plain. There was no difficulty or doubt on the record requiring invocation of S.36-A.
- Other procedural and record issues: The Court stated that it found no error apparent on the face of the record and no breach of principles of natural justice in the labour Court's computation. Consequently, the rule challenging the labour Court's decision was unsustainable.
Holding and Implications
Holding:
The rule fails and stands discharged with costs.
Direct consequences and practical implications for the parties (as expressly ordered by the Court):
- Earlier the Court stated (para 17) that opposite party No.2, Chandra Kant Misra, was at liberty to withdraw Rs. 6,500 lying in deposit in Court pursuant to orders of P.B. Mukharji, J. dated 11 January and 29 March 1965.
- However, on an application for stay by the petitioner, the Court declined to stay the entire operation of the labour Court's order. Instead (para 19) the Court modified the earlier liberty and directed that Chandra Kant Misra be entitled immediately to withdraw Rs. 2,000 from the amount in deposit; the remaining sum shall be withdrawable only on the expiry of eight weeks from the day of the order. The verbal prayer for stay was granted only to that limited extent.
Broader legal implications: The opinion does not assert the setting of any new precedent beyond the application of existing principles (substance over form; flexible, practical approach to monetary computation under S.33-C(2); the limited, executive character of S.36-A). The immediate effect is confined to dismissal of the petition and the specific directions about withdrawal of the deposited funds.
Disposition
Order accordingly: the petition under Article 227 is dismissed (the rule discharged with costs), and the deposit withdrawal directions described above are recorded.
1. By this rule obtained under Article 227 of the Constitution, Messrs Bengal Bus Syndicate seeks reversal of the decision dated September 30, 1964, of a labour Court here, computing under Section 33-C, sub-section 2 of the Industrial Disputes Act, 14 of 1947, the monetary benefits payable by the Syndicate to its quondam employee, (a starter), Chandra Kant Misra opposite party No. 2, as under:
1. Back wages for 18½ months from February 1, 1961, to mid-August 1962 at Rs. 100 a month Rs. 1,850.00 2. Bonus for 1961 Rs. 100.00 3. Compensation for 10 years with bonus of Rs. 100 a year Rs. 13,000.00 Total: Rs. 14,950.00
2. The preliminary facts leading to sucli computation are not in the realm of dispute. On April 30, 1962, an industrial tribunal here recorded an award directing the Syndicate (i) to reinstate Chandra Kant to his former job, with continuity of service, and (ii) to pay him all back dues for the period of his forced unemployment within one month from the publication of the award. The award was published in the Calcutta Gazette dated July 19, 1962. See Part I thereof at pp. 2084–2090. The Syndicate defied the award. The State Government, therefore, specified, under S. 33-C, sub-section 2, again, this particular labour Court as the Court for computing in terms of money, the benefit receivable by Chandra Kant, in pursuance of the award: vide the relevant Government order dated February 29, 1964, with an assortment of various figures and alphabets as its number. This is how the labour Court came to be seized of the matter. Mr. Arun Kumar Dutt, appearing in support of the rule, addresses me on three points. First: Chandra Kant did not press into service the statutory form Q/2 in making the application he did under S. 33-C. sub-section 2. By not having done what he should have done, he has placed himself outside the statute. Second: computation of the benefit, in terms of money, as made, is outside the scope of S. 33-C, sub-section 2. Third: failure to invoke S. 36-A means failure of the opposite party workman's case. I have been addressed on no other point.
3. The first point has only to be stated in order to be rejected. Comparing a paradigm of the form Q/2 with the application Chandra Kant made before the labour Court, I find, all material particulars prescribed in the form are in the application And still it will go down as an ineffective ??? In a judicial tribunal form yields in favour of substance, and not vice versa.
4. Mr. Dutt, however, will not allow me to leave the matter here. He has been good enough to cite two cases, the first of which is that well-known decision of a Full Bench of this Court: Jatindra Nath De… v. Jetu Mahato & Ors.…Opposite Parties.*, (1946) 50 Cal WN 502 : (AIR 1946 Cal 339), laying down that a co-sharer landlord could avail himself of his right of pre-emption under the old Section 26-F of the Bengal Tenancy Act, even after the new S. 26-F had come into force, by virtue of the 1938 Amendment, conferring such right to co-sharer tenants only, if the transfer was before the amendment. What that has got to do with form Q/2 defeats me. This statutory form, for all I see does not confer any right on the workman. Section 33-C. sub-section 2, does. The form is there merely as an example. It is a mere form given for convenience' sake offering a little guidance to the workman as to what his application under R. 74, sub-rule 3, of the Industrial Disputes Rules should contain, if he is minded to apply for relief on specification of a labour Court by the State Government under S. 33-C, sub-section 2. That being so, not using the form simpliciter cannot deprive the workman of his right he has under the main enactment: S. 33-C, sub-section 2, and also under the statutory instrument which is here R. 74, sub-r. 3; the more so, when all the material particulars mentioned in the form are to be found in Chandra Kant's application under R. 74, sub-rule 3, on plain paper, before the labour Court. To hold the opposite will be to turn upside down all the recognized principles upon which Courts of law construe Acts of Parliament.
5. Equally irrelevant is Abbot v. Minister for Lands, 1895 AC 425, cited in the Full Bench decision just referred to—a case Mr. Dutt will not pass by. There Section 22 of the Crown Lands Alienation Act, 1861 gave a right to a holder of grant in fee simple to apply for further purchase. With the Crown Lands Act, 1884 coming into force and repealing the 1861 Art. such right was no more. Certain of the provisions of the 1861 Act were re-enacted in the 1884 Act, but not S. 22. Still provision there was preserving the right accrued. So what? The mere light, if it can be called a right at all, to take advantage of an enactment is not a right accrued. The enactment being no more, the right to lake advantage thereunder can be no more too. Here. Chandra Kant's right is nothing like it. It is a right which flows from his refractory employer infracting the award of a competent tribunal. It is a right under S. 33-C, sub-section 2, which is a live law.
6. The second case Mr. Dutt relies upon is Management of Technological Institute of Textile v. Workmen, reported in (1965) 11 Fac LR 11 (SC), where the Supreme Court holds that a certain settlement arrived at cannot regarded as binding upon the parties in the absence of evidence to show that R. 58 of the Industrial Disputes (Punjab) Rules was complied with and in the absence of necessary formalities. A settlement is a serious thing where every formality has an importance all its own. See the definition of settlement in Section 2(p) of the Industrial Disputes Act. That can hardly be equated with the non-use of form Q/2 when all that is required to be stated in that form has been stated in the application on plain paper.
7. The first point, therefore, fails.
8. The second point has no substance either. The very decisions of the Supreme Court Mr. Dutt cites: S.S Shetty v. Bharat Nidhi Ltd. , 1958 SCJ 187 : (AIR 1958 SC 12) and The Central Bank of India Ltd. v. P.S Rajagopalan, 1964 SCJ 176 : (AIR 1964 SC 743): go against him. True it is that the monetary value of the benefit of reinstatement is to be computed not on the basis of a breach of the contract of employment nor on the basis of tort for non-implementation of the award,—as held by the Supreme Court in Shetty's case, 1958 SCJ 187 : (AIR 1958 SC 12). And Mr. Dutt emphasizes it. But the Supreme Court has held a little more too in the same case, as Mr. Bankim Dutt, appearing for the Judge, Labour Court, and the State, submits: the computation has to be made by taking into account various matters, such as the terms and conditions of employment, the tenure of service, the possibility of termination of the employment at the instance of either party, of retrenchment by the employer, of resignation or retirement by the employee, of the employer himself ceasing to exist, of the workman reaping the benefits of future awards etc. Once this is remembered, the yardstick of 10 years applied by the Labour Court does not appear to be open to the criticism that has been made it is futile to expect a mathematical precision in cases of this type. What is required is a rough-and-ready justice to both—the employer and the employee. And that is what I see here.
9. The decision in Shetty's case, 1968 SCJ 187 : (AIR 1958 SC 12) no doubt turns on Section 20, sub-section 2 of the Industrial Disputes (Appellate Tribunal) Act, 1950 But that matters little. Because, as pointed out by Gajendra gadkar, J. (as his Lordship then was) in 1964 SCJ 176 : (AIR 1964 SC 743) (supra), the provisions of S. 20, sub-section 2, roughly correspond to those of Section 33-C, sub-section of the Industrial Disputes Act, 1947 under which the Labour Court has made the computation complained of. The two points of distinction his Lordship refers to between S. 20, sub-section 2, and S. 33-C. sub-section 2, do not prevent the principle of interpretation laid down in Shetty's case, 1958 SCJ 187 : (AIR 1958 SC 12) from being applied here. And the principle was in fact applied by the Supreme Court in Victor Oil Co., Ltd. v. Amar Nath Das & Others, (1961) 2 Lab LJ 113 (SC), a case under S. 33-C too.
10. Mr. Dutt contends that the monetary value went down in Victor Oil Co.'s case, (1961) 2 Lab LJ 113 (SC) because the workmen were not permanent hands. It did but it is nobody's case before me that Chandra Kant was a non-permanent workman under the Syndicate.
11. I am not impressed either by Mr. Dutt's attempt to flee S. 33-C. sub-section 2, on the ground that the award of the Industrial Tribunal awards no benefit which is capable of being computed in terms of money. The award directs the Syndicate to reinstate Chandra Kant with continuity of service and to pay him back all his dues for t-he period of his forced unemployment. What is it, if not benefit? The Syndicate does neither reinstate him nor give him his back dues. Therefore, this twofold benefit has to be and is capable of being computed in terms of money. That is exactly what has been done.
12. And then what is at the back of such contention by which, if successful, the Syndicate will fall out of the frying pan of sub-section 2 into the Are of sub-section 1 (of S. 33-C), facing a much harsher measure of the workman's dues being realized by certificate procedure? But it cannot be successful. Section 33-C, sub-section 2, in terms, applies.
13. The third point remains. Of the three, each a weak one, it appears to be the weakest. Section 36-A at first sight looks like what was once called in England “Henry VIII clause” named after that monarch in dis respectful commemoration of his tendency to absolutism, giving the executive or a minister a power of dispensation to remove by order any difficulty or doubt which may arise in the working of the Act with a view to bringing the Act into full operation. See C.K Allen Law and Orders. 2nd edition, p. 198, and also Prativa Pal… v. Janhabi Charan Chatterjee…., (1962) 67 Cal WN 522 at pp. 525–526 : (AIR 1963 Cal 470 at pp. 471–472). Looking, however, a little below the surface, it is apparent that S. 36-A falls far short of that. But where is the doubt or difficulty in the case in hand about the plainest of a plain award by the industrial tribunal? Then, the doubt or the difficulty has to be of the State Government, not of Chandra Kant, nor of the Syndicate. And the State Government has no manner of doubt or difficulty. Indeed, there cannot be any; the award is ???
14. To say, therefore, that Chandra Kant's case fails, because of the failure to call in aid S. 36-A, is to say the unsayable. Indeed, it is difficult to conceive of a weaker argument in support of a hopeless plea.
15. Last, but by no means least, I do not find any error apparent on the face of the record, nor anything which violates the principles of natural justice I have not been addressed on any, save on what goes before, which falls under neither.
16. In the result, the rule fails and do stand discharged with costs.
17. The opposite party No. 2, Chandra Kant Misra, is at liberty to withdraw the sum of Rs. 6,500 lying in deposit in Court in terms of P.B Mukharji, J.'s order dated January 11 and March 29, 1965.
18. On behalf of the petitioner, I have been asked to stay the operation of this order for eight weeks from this day. I find before me a workman out of employment all these years. So, I shall not stay the operation of the whole of the order.
19. I direct instead that the opposite party No. 2, Chandra Karita Misra be entitled to withdraw Rs. 2,000 (Rupees Two Thousand only) out of the amount lying in deposit in this Court. So I direct in modification of what goes before. And the remaining sum which is lying in this Court, he shall be able to withdraw only on the expiry of eight weeks from this day. The verbal prayer of stay is granted to that extent.
HJ/JHS/D.V.C
20. Order accordingly.
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