Sabitri Motor Service Pvt. Ltd. v. State Of West Bengal And Others

S.K Mukherjee, J.:— This appeal is directed against an order made by a learned Single Judge on April 11, 1973 by which he discharged a Rule.

2. By an order dated April 25, 1966 a reference was made by the State Government under Section 10 of the Industrial Disputes Act, 1947 to the Third Industrial Tribunal. The issues were:—

(1) Is the termination of service of Sarbasri Dwarik Shaw and Narendranath Giri justified? (2) To what relief, if any, are they entitled? The workmen in question were the driver and the conductor of a motor vehicle of which Messrs. Sabitri Motor Service Pvt. Ltd., the appellant before us, were the owners. The Union, representing those workmen contended that their services were verbally terminated on June 20, 1964 without assigning any reason or serving any notice. It was further contended that the termination of service of those workmen was illegal and unjustified and a prayer was made for their reinstatement with all back wages and allowances. The Management not only denied the charge of termination of services of the two employees but also specifically stated that both the employees had, of their own accord, left their services under the company.

3. The Tribunal in its award stated as follows:—

“In view of the pleadings of the contending parties, onus undoubtedly was on Union to prove that the services of both the workmen have been terminated by the Company with effect from June 20, 1974. Once, however, the Union succeeds in discharging its onus, it will be the duty of the Company to justify the termination. The question whether the services of both the workmen have been terminated by the company or they have of their own accord, left their services under it, is thus the main question for determination in this case”.

4. It seems to us that the Tribunal was wrong in posing the question whether the Company had terminated services of the workmen. The issue raised by the order of reference was whether the termination of services of the workmen was justified It was not, therefore, open to the parties or to the Tribunal to go behind the order of reference and raise the issue as to whether there was in fact termination of service of the two workmen. The question which was referred to the Tribunal for decision was the justifiability of the termination. In the case of The Delhi Cloth and General Mills Co. Ltd. v. The Workmen (1), the terms of reference raised the issue whether the strike and lock-out were justified and legal. It was held that on the order of reference it was not competent for the workmen to contend before the Tribunal that there was no strike or for the Management to contend that there was no lock-out. It was pointed out by G.K Mitter, J. delivering the judgment of the Court that it was not open to the parties to contend that the foundation of the dispute mentioned in the order of reference was non-existent and the true dispute was something else. Under Section 10(4) of the Industrial Disputes Act it was not competent for the Tribunal to entertain such dispute. In the light of these observations of the Supreme Court it is clear that the learned Tribunal erred in raising the question of termination of service as a fact.

5. Having permitted the question of termination of service to be raised, the Tribunal took evidence, assessed the evidence, and came to the following conclusions:

“I cannot believe company's case that both the workmen have of their own accord, left their jobs under it and on the evidence on record, I hold that both the workmen have been refused employment since June 20, 1974. No material justifying the refusal being available, it must further be held that the refusal was illegal and unjustified.”

6. On the basis of that finding the Tribunal made an award on August 31, 1967 declaring that the refusal of employment to the workmen was illegal and unjustified and directing the Company to reinstate both of them with their back wages and other allowances, if any, since June 20, 1964, that is to say, the date from when employment was refused.

7. Under the order of reference it was the duty of the Tribunal to decide whether the termination of service was justified or not. Instead of answering that question and granting or refusing relief to the workmen on the basis of the answer to the main issue, the Tribunal held that the Company had refused to employ the workmen and directed reinstatement of the workmen with consequential reliefs. The use of the words ‘refusal of employment’ is unfortunate, if by these words the Tribunal intended to mean that the employer had terminated the services of the workmen. It is unfortunate be cause those words or similar words have acquired a certain specific meaning in the language of Industrial Law. Section 2(1) of the. In dustrial Disputes Act defines ‘lock-out’ to mean………… the refusal by an employer to continue to employ any number of persons employed by him. Taken literally the award of the Tribunal may be construed to mean that there was a lock-out which is quite a different thing from termination of service. In Feroz Din v. State of West Bengal (2) A.K Sarkar, J. speaking for the Court said that the words ‘Refusal by an employer to continue to employ any number of persons employed by him’ in Section 2(1) does not include the discharge of an employee. They mean a refusal by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service. The same view has been expressed in a judgment of a division Bench of this Court presided over by D. Basu, J. Gayadin Ram v. Rama Pada Roy (3). It is true that in the present case the words ‘refusal of employment’ have not been used in the context of Section 2(1). The learnned Tribunal, however, by using those words in its findings has lend colour to the supposition that on a consideration of the evidence it came to the conclusion that there was no termination of service, but there was in fact, refusal on the part of the Company to employ the workmen. It is quite possible that is not what the Tribunal intended to say. The fact that the Tribunal thought that whether there had been termination of service or not was for the Tribunal to decide, indicates that the Tribunal did not appreciate the real scope of the reference. In law, the Tribunal could not travel beyond the ambit of the reference. It was only left for the Tribunal to decide whether termination of service was justified or not and on the basis of the answer to that question, to award or not to award relief.

8. In that view of the matter, the award must be treated as at best, ambiguous. We feel that the ends of justice will be served if we set aside the award and send the matter back to the Tribunal for fresh adjudication in accordance with law on the basis of the evidence on record. The Tribunal will be free in the exercise of its discretion, to permit the parties to adduce evidence on the character and quantum of relief, if occasion arises. It is desirable that the matter is disposed of by the Tribunal with utmost expedition.

9. The appeal is allowed. The order of the Trial Court as also the award of the Third Industrial Tribunal are hereby set aside. The matter is sent back to the same Tribunal for fresh adjudication in the manner indicated above.

10. There will be no order as to costs. Leave is given to the learned Advocate for the appellant to withdraw the application for adducing additional evidence.

11. The operation of this order will remain stayed for ten weeks from date.

Sudhamay Basu, J.:— I agree. It is obvious that the order of reference which related to justifiability of termination of service was not answered by the Tribunal which only found that there wag refusal of employment. There was further direction for reinstatement of the workmen with back wages. Mr. A.K Dutt appearing for the appellant contended that the award suffered from two grievous errors, namely, (i) that it equated refusal of employment with termination service and (ii) that when there was refusal to employ reinstatement could not be a proper relief. He referred to the decision in Firozdin v. The State of West Bengal (2) to point out that discharge was not refusal of employment. He also relied on two unreported decision of this Court: (1) Associated Indian Enterprises Pvt. Ltd. v. Second Industrial Tribunal (4) decided by a Division Bench of this Court consisting of Sinha, C.J and Arun Kumar Mukherjea, J. dated November 24, 1966. It held that reinstatement could not be ordered in case of suspension. It relied on a decision of the Supreme Court Burn and Co. v. Workmen of Burn and Co. (5). (2) The other case Gayadin Ram v. Ramapada Roy (6) decided by D. Basu and A.K Basu, JJ., dated June 3, 1969 holding, inter alia, that reinstatement could not be a proper relief in case of refusal to employ and that the Tribunal was to confine itself to the term of reference.

12. It is clear that the Tribunal failed to answer the issue referred to it. This is an infirmity which cannot be cured. The Tribunal equated the two terms: termination of service and refusal of employment. While the former presupposes severance of jural relationship of employer and employee the latter may be consistent with continuance of such relationship. We are inclined to think that the error in answering the reference which goes to the root and affect jurisdiction has occurred on account of a failure to keep in view the legal connotation of the two expressions by the learned Tribunal. In any event the Tribunal which is a creature of statute cannot travel beyond the order of reference. It is not for a Tribunal to enlarge or alter the scope of reference except incidentally in certain cases. The Calcutta Electric Supply Corpn. Ltd. v. The Calcutta Electric Supply Corpn. Workers' Union (7), The attar Pradesh Electricity Supply Corpn. v. Workmen (8).