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HIGH COURT OF CALCUTTA
Bose
BILASH CHANDRA MITRA - Appellant
Versus
BALMER LAWRIE AND CO. LTD. - Respondent
Suit 2371 Of 1949
Decided On : JULY 28, 1952
INDUSTRIAL DISPUTES ACT - AWARD - ENFORCEABILITY - SUIT FOR ARREARS OF SALARY AND ALLOWANCE - MAINTAINABILITY - INDUSTRIAL DISPUTE - DEFINITION - DISPUTE BETWEEN SINGLE WORKMAN AND EMPLOYER - VALIDITY OF ORDER OF REFERENCE - SCOPE AND EFFECT OF AWARD - REINSTATEMENT - AUTOMATIC REINSTATEMENT - WAIVER OF RIGHTS UNDER AWARD - REMEDY FOR ENFORCEMENT OF AWARD - INDUSTRIAL DISPUTES ACT, 1947, SECTIONS 2(K), 2(S), 15(2), 18(A), 18(B), 22, 23, 29, 34.
Fact of the Case:
Plaintiff, an employee of the defendant company, was pensioned off for trade union activities. An industrial dispute arose, and the Government referred the dispute to an Industrial Tribunal. The Tribunal made an award directing the plaintiff's reinstatement and payment of arrears of salary and allowances. The Government declared the award to be binding. The plaintiff filed a suit for recovery of arrears of salary, dearness allowance, and bonus payable under the award.
Finding of the Court:
1. The dispute referred to the Tribunal was an industrial dispute, and the Order of Reference was valid. 2. The Award was valid and became binding on the parties upon the order dated 22-1-1948 being made under Section 18, Industrial Disputes Act. 3. The plaintiff was automatically reinstated by virtue of the Award, and the defendant company was liable to pay the arrears of salary and allowances. 4. The plaintiff did not waive his rights or claim under the Award by accepting the pension. 5. A suit for enforcing the rights or liability created by the Award is maintainable.
Issues: 1. Whether the dispute referred to the Tribunal was an industrial dispute. 2. Whether the Order of Reference and/or the Award was valid. 3. Whether the plaintiff was reinstated as a result of the Award. 4. Whether the plaintiff is entitled to any arrears of pay and dearness allowance on the basis of being in employment with the company. 5. Whether the plaintiff has waived his rights to pay and dearness allowance, if any. 6. To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: 1. A dispute between a single workman and the employer relating to the dismissal itself is not an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947, read with Section 2(s) thereof. 2. However, where the Union takes up the cause of the dismissed employee and represents him in the dispute, the dispute becomes an industrial dispute. 3. An Award of an Industrial Tribunal can create new rights and obligations between the employer and the employees, and it is enforceable by its own force and by the coercive machinery of the Act. 4. The acceptance of pension by an employee after the award does not amount to a waiver of his rights under the award unless it is clearly established or can be inferred from facts proved.
Final Decision: The suit was decreed in favor of the plaintiff for Rs. 4478-12-0 with interest on decree at 6 percent and costs on scale No. 2.
( 1 ) THIS is a suit for recovery of Rs. 4476-12-0 for arrears of salary, dearness allowance and certain bonus payable to plaintiff under an Award of a Tribunal constituted under the Industrial Disputes Act 1947.
( 2 ) THE case of the plaintiff as laid in the plaint is that he had been in the employment of the defendant company for 22 years. On 1-4-1947 he was unjustly pensioned off for Trade Union activities. Thereupon an industrial dispute arose between the defendant company and the plaintiff and other employees represented by the Balmer Lawrie and Company's Employees Union "and the Government of West Bengal by an order No. 648-Lab. dated 10-10-1947 referred the said dispute to an Industrial Tribunal for adjudication. The Tribunal made an award directing that the plaintiff be reinstated in his employment and it further directed the defendant company to pay to the plaintiff the arrears of pay and allowances consequent to such reinstatement within months of the date on which the Award would be effective. By an order dated 22-1-1948 the Government declared the Award to be binding.
( 3 ) IT is alleged that by virtue of the said Award the plaintiff came to be reinstated to his service and post and shall be deemed to be reinstated from 1-6-1947 and became entitled to his arrears of pay and allowances from that date and as the plaintiff is still in and shall be deemed to be in the employment of the defendant company he is entitled to the sum of Rs. 4476/12/- for hi; pay and allowance from June 1947 after giving credit for the "sums paid to the plaintiff as pension during the period. The particulars of the claim are set out in para. 5 of the plaint. As the defendant company failed and neglected to implement the Award and to pay the dues of the plaintiff this suit was filed on 6-7-1949.
( 4 ) THE defendant company filed a Written Statement on 17-8-1949. It is stated in this Written Statement that on 1-4-1947 the defendant duly terminated the employment of the plaintiff with two months pay in lieu of notice and a payment of Rs. 31/- per month as pension and certain reasons for the discharge of the plaintiff are set out therein. It is denied that the dispute which was referred by the Government was an Industrial dispute at all and it is submitted that the order of reference was invalid and consequently the Tribunal had no jurisdiction to make the Award, it is further denied that the Award entitled the plaintiff to claim reinstatement and pay and allowance as alleged. It is further stated that by accepting and enjoying the pension the plaintiff had waived his right to be reinstated and to receive the pay and allowances, and so the Suit should be dismissed.
( 5 ) THE following Issues were raised:1. (a) Does the plaint disclose any cause of action? (b) Is the suit maintainable? 2. Was there any industrial dispute within the meaning of the Industrial Disputes Act which was the subject matter of the Order of Reference? 3. Is the Order of Reference and/or the Award valid? 4. Is the plaintiff to be deemed to be reinstated or was the plaintiff reinstated as the result of: the Award? 5. Is the plaintiff entitled to any arrears of pay and dearness allowance on the basis of being in employment with the company? 6. Has the plaintiff waived his rights to pay and dearness allowance, if any? 7. To what relief, if any, is the plaintiff entitled?
( 6 ) A copy of the Award, an admitted brief of documents, and certain receipts for pension have been put in evidence by consent of parties. The plaintiff has also given evidence in the box. He states that he and few other employees formed the Balmer Lawrie and Company's Employees Union in July or August 1946 and he was the Vice-President of the Union. In or about October 194s the employees submitted a charter of demands to the defendant company. After the Charter of demands was submitted he incurred the displeasure of the Accountant and on 31-3-1947 he was served with a letter intimating that he
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