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1979 Supreme(Cal) 207
High Court Of Calcutta
Sabyasachi Mukherji, J.
Benett Coleman : Appellant
Versus
State Of West Bengal : Respondent
Decided On : Jun 12, 1979
C.L. Ganguly, Jamini Kumar Banerjee, N.N. Gooptu, Samarjit Ghosh, Sekhar Kumar Mustafi, Sunit Krishna Dutt,
The discretion of the Tribunal under Section 11(7) of the Industrial Disputes Act, 1947, is a judicial discretion and must be exercised according to the rules of reason and justice, not according to chance, caprice, private opinion, or some fanciful idea of benevolence or sympathy.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 11(7) - WEST BENGAL INDUSTRIAL DISPUTES RULES, 1958 - RULE 24A - COSTS AND INCIDENTAL EXPENSES - DISCRETION OF TRIBUNAL - JUDICIAL DISCRETION - CONDITIONS FOR AWARDING COSTS - PRESENCE OF PARTY AS WITNESS - ESSENTIALITY OF PRESENCE - CONSIDERATION OF TRIBUNAL - JURISDICTION OF TRIBUNAL - ADJUDICATION OF INDUSTRIAL DISPUTE - NOT ENFORCEMENT OF MERE CONTRACTUAL RIGHTS AND LIABILITIES - FAIR DEAL TO EMPLOYEE - PROTECTION FROM VICTIMIZATION AND UNFAIR LABOUR PRACTICE - REASON AND FAIRNESS - NOT YIELDING TO CONVENIENCE OF PARTY - ARBITRARY, VAGUE AND FANCIFUL DIRECTION - WITHOUT BASIS - WITHOUT INDICATION OF NECESSITY OF ADJOURNMENT - WITHOUT CONSIDERATION OF ESSENTIALITY OF PRESENCE OF PARTY AS WITNESS - WITHOUT SATISFACTION OF ACTUAL PRESENCE OF PARTY ON SUBSEQUENT DATE - DIRECTION TO TREAT LITIGANT PURSUING PERSONAL LITIGATION AS ON DUTY - WITHOUT ADJUDICATION OF ISSUE OF BREACH OF TERMS AGREED BETWEEN PARTIES - WITHOUT ADJUDICATION OF ISSUE OF VIOLATION OF TERMS AND CONDITIONS OF WORKING JOURNALISTS (CONDITIONS OF SERVICE) MISCELLANEOUS PROVISIONS ACT, 1955 - EXCESS OF JURISDICTION - INTERLOCUTORY ORDER - PAYMENT OF COSTS NOT SUBJECT TO FINAL ADJUDICATION OF RIGHTS OF PARTIES - NOT TRULY INTERLOCUTORY ORDER - ADVANCE MADE TO PARTY FOR UNDERTAKING JOURNEY - TREATED AS EXCRETA PAYMENT - NOT RECOVERABLE.
Fact of the Case:
The petitioner, Benett Coleman and Co. Ltd., challenged an order of the First Labour Court, West Bengal, directing the company to bear the railway expenses of the respondent No. 3, a working journalist, for attending the court on a specific date. The respondent No. 3 had raised a dispute regarding his pay and dearness allowance, which was referred to the First Labour Court for industrial adjudication. During the pendency of the dispute, the respondent No. 3 was transferred to Pune. He wrote to the company requesting special leave and traveling allowance to attend the court proceedings in Calcutta. The company replied that the general policy was to grant leave and that the respondent No. 3 could approach the management for specific court cases. The Labour Court, however, directed the company to bear the railway expenses of the respondent No. 3 for attending the court on a specific date and also observed that the company was to guide itself as if the respondent No. 3 was in the employ of the company and on duty.
Finding of the Court:
The court held that the order of the Labour Court was without jurisdiction and exceeded its powers. The court found that the conditions for awarding costs under Rule 24A of the West Bengal Industrial Disputes Rules, 1958, were not satisfied. The court also held that the Tribunal had not considered whether the presence of the respondent No. 3 was essential as a witness on the date for which the costs were awarded and whether he would actually be present on that date. The court further held that the Tribunal had not adjudicated the issue of breach of terms agreed between the parties regarding the respondent No. 3's transfer and the company's obligation to bear his expenses. The court also held that the Tribunal had exceeded its jurisdiction by directing the company to treat the respondent No. 3 as on duty while he was pursuing his personal litigation.
Issues: 1. Whether the Labour Court had the jurisdiction to direct the company to bear the railway expenses of the respondent No. 3 for attending the court on a specific date? 2. Whether the conditions for awarding costs under Rule 24A of the West Bengal Industrial Disputes Rules, 1958, were satisfied? 3. Whether the Tribunal had considered whether the presence of the respondent No. 3 was essential as a witness on the date for which the costs were awarded and whether he would actually be present on that date? 4. Whether the Tribunal had adjudicated the issue of breach of terms agreed between the parties regarding the respondent No. 3's transfer and the company's obligation to bear his expenses? 5. Whether the Tribunal had exceeded its jurisdiction by directing the company to treat the respondent No. 3 as on duty while he was pursuing his personal litigation?
Ratio Decidendi: 1. The discretion of the Tribunal under Section 11(7) of the Industrial Disputes Act, 1947, is a judicial discretion and must be exercised according to the rules of reason and justice, not according to chance, caprice, private opinion, or some fanciful idea of benevolence or sympathy. 2. The conditions for awarding costs under Rule 24A of the West Bengal Industrial Disputes Rules, 1958, are that the presence of the party is considered essential for the hearing of the case, that the party was actually present on the date for which the cost is awarded, and that the party is a witness for that date. 3. The Tribunal must consider whether the presence of the party is essential as a witness on the date for which the costs are awarded and whether the party would actually be present on that date. 4. The Tribunal cannot adjudicate the issue of breach of terms agreed between the parties regarding the respondent No. 3's transfer and the company's obligation to bear his expenses unless such an issue is before the Tribunal. 5. The Tribunal cannot direct the company to treat the respondent No. 3 as on duty while he is pursuing his personal litigation.
Final Decision: The court set aside the order of the Labour Court and directed that the advance made to the respondent No. 3 by the company for undertaking the journey should be treated as an excreta payment made by the company and this amount should not be recovered from the respondent No. 3.
1. THE subject matter of challenge in this application is the order dated 16th January, 1979 passed by the First Labour Court, West Bengal. The said order is as follows :
"both parties are present. Heard the workman and the representative of the company. Considering the circumstances the case is adjourned to 16th March, 1979 for hearing the two petitions filed on behalf of the workman on 22nd may, 1978 and 23rd October, 1978 and the objections given by the Company. The Company is hereby directed to bear the Railway expenses of the Workman in attending this Court on 16th March, 1979. In this matter the Company is to guide itself as if the workman is in the employ of the company and on duty. "
2. IN order to appreciate the challenge to this order, it may be relevant to refer to certain facts. According to the petitioner, Benett Colemam and Co. Ltd., the respondent No. 3 was employed with effect from 1st November, 1961 in the company's service as a staff Correspondent and was a working Journalist. He was then promoted as an Industrial Correspondent, Pune on 16th November, 1976. Subsequently, I am told that the services of the respondent no. 3 were terminated. The respondent no. 3 has challenged such termination of his services by the petitioner in the appropriate Court at Pune and has. obtained certain orders of injunction. I am not, however, concerned in this application with the controversy whether the termination of the services of the respondent no. 2 was bona fide or illegal or what is the effect of the order of the Court at Pune though I will notice that as a contention touching the same was made by the respondent no. 3 in this application before me. It is stated by the petitioner that the Government of India had promulgated an ordinance which was later on converted into a statute, viz. Working Journalists (Fixation of Rates of Wages) Act, 1958 on 16th September, 1958. It is the case of the petitioner that the respondent no. 3 is also covered by the said Act as well as under the recommendations of the Wage Board. The petitioner further states that after the Wage Board recommendations came into being, the respondent no. 3 raised a dispute which was ultimately referred to Second Labour Court, Government of West Bengal and there was an award by the Second Labour Court to which I need not refer for the purpose of this application. Thereafter, the respondent no. 3, according to the petitioner, did not challenge the said award and after the award the respondent no. 3 raised the following disputes which were subsequently referred, on the failure of the conciliation proceedings, to the First Labour Court for industrial adjudication, viz. "whether the management is justified (i) in fixing the pay of Sri Samarjit Ghosh in a new scale other than what is indicated by the Wage Board, and at the same time enforcing the dearness allowance scheme recommended by the said Board ; (ii) in not protecting the higher total wages rates of wages available to Sri Samarjit ghosh under the Company's conditions of service prior to recommendations of the Wage board; (iii) To what relief, if any is he entitled?"
The said order of reference was made on the 23rd August, 1977. The petitioner raised certain preliminary points of objections which have been get out in this petition to which It is not necessary for the purpose of this application to refer in detail. After the reference was made, the learned First Labour Court gave directions for filing of the respective Written statements and certain orders were passed which are also set out in the petition. It is stated on behalf of the petitioner that though the respondent no. 3 was himself a lawyer he had raised an objection relating to appearance of the lawyer on behalf of the petitioner. This objection, according to the petitioner, was belated. On the 21st December, 1977, First labour Court passed certain orders and thereafter different dates were fixed for hearing. It appears that certain objection
