VISHAN ROY Vs. BAYER INDIA LTD

JUDGEMENT

(1.) THIS is an appeal against the judgment and order dated 12th December 1990 passed by the learned trial judge in C. O. No. 103 (w) of 1989 dismissing the writ application filed by the appellant writ petitioner against the order dt. 17th June, 1988 passed by Shri R. K. Ghatak, Judge, 8th Industrial Tribunal rejecting the application of the workman for interim relief as provided under section 15 (2) (b) of the West Bengal Amendment of the Industrial Disputes Act.

(2.) IN this appeal the question arose as to the scope and ambit of the power of the Industrial Tribunal under section 15 (2) (b) of the Industrial dispute Act, 1947 as amended by the West Bengal Industrial Dispute (2nd amendment) Act, 1980. For deciding the issue raised in this appeal it would be necessary for us to refer to the provisions of section 15 (2) (b) of the said Act which is as follows : "15 (2) Where an industrial dispute has been referred to a labour court or tribunal it shall -a) after filing of statements and taking of evidence give day to day hearing and give its award, upon determination or decision in the manner specified in 17b without any delay : b) Upon hearing the parties to the dispute, determine within a period of 60 days, from the date of reference under Sub-section (1) of section 10 or within such shorter period as specified in the order of reference under sub-section (1) of Section 10. the quantum of interim relief admissible, if any : provided that the quantum of interim relief relating to discharge, dismissal, retrenchment or termination of service or workman shall be equivalent to subsistence allowance as may be admissible under the West Bengal Payment of Subsistence Allowance Act, 1969".

(3.) THE facts of this case relevant for the purpose of the appeal are that the appellant petitioner was employed as car driver under the respondents company, Bayer (India) Ltd. and was working as such from 14. 11. 1967. On or about 2nd March, 1976 the service of the appellant petitioner was terminated by the respondent-company by paying one month's salary in lieu of notice on 2nd March, 1976. The service of the appellant was terminated as the appellant petitioner did not carry out an order of transfer. The said termination of service of the appellant petitioner was the subject matter of an industrial dispute and the Labour Court on consideration of the matter passed on award holding that the termination of service of the appellant petitioner was justified by an award dt. 28th june, 1979. Being aggrieved by and dissatisfied with the said award dt. 28th June, 1979 the appellant petitioner filed a writ application where upon a rule was issued, being C. R. No. 10419 (W) of 1979. The said Civil rule came up for final hearing before Amitava Dutta, J. (as his Lordship then was) and by an order dated 15th February, 1984 the learned Judge field that the order of termination of service simpliciter tantamounts to retrenchment and as such the same was void abinitio as the requirement of Section 25f of the Industrial Dispute Act was not complied with by the management and that the said award was quashed by the said learned judge. The management was directed to pay the back wages to the appellant petitioner on the footing that he had been continuing in service and the learned Judge also observed in the said judgment that it would be open to the management to retrench the appellant petitioner after complying with the requirement of Section 25f of the Industrial Dispute act and in accordance with law. Against the judgment and order dated 15th February, 1984 passed in Civil Rule No. 10419 (w) of 1979, the management preferred an appeal before the Division Bench of this Court. Ultimately the appeal fifed by the; management was dismissed. After the appeal was dismissed, the management reinstated the appellant petitioner by the order dt. 30. 1. 85 with effect from 5th February, 1985 in the service of the company at Calcutta and paid a sum of Rs. 1,57,713. 87 after deducting the provident fund contribution and the Income Tax at source and other advances. By another order passed on the same date, the management informed the appellant petitioner that the management had decided to retrench him with effect from 5th February, 1985 as the management did not have any services to offer to him at Calcutta office and as required under Section 25f of the Industrial Dispute Act paid two demand drafts one for Rs. 2365. 32 which was equivalent to one month's wages in lieu of period of notice and the other for Rs. 22,877. 52 being retrenchment compensation. The appellant petitioner had encashed the demand draft for back wages for Rs. 1,57,713. 87 but in so far as the retrenchment compensation is concerned the demand draft were not initially encashed by the appellant petitioner but he subsequently encashed it. Again an Industrial dispute was referred to by the State government by an order dated 16th December, 1986 to the tribunal. The issue was "is the retrenchment of Sri V. Roy with effect from 5. 2. 1985 justified and lawful? To what relief, if any, is the workman entitled?" The appellant who was the workman immediately filed a written statement before the 8th Industrial Tribunal before whom the dispute had been referred to disclosing the fact of receiving the back wages amounting to rs. 1,57,713. 87. Thereafter the appellant workman filed an application for interim relief under Section 15 (2) (b) of the Industrial Dispute Act as amended by the West Bengal Industrial Dispute (2nd Amendment) Act, 1980. The said prayer for interim relief under Section 15 (2) (b) of the Act was opposed by the management on the ground that the management had paid amount as back wages and that the appellant was all along earning as taxi Driver and earning not less than Rs. 35/- per day. It was alleged that in 1985 the workman obtained a permit for a Matador Van for carrying goods on hire basis and the workman paid Rs. 40,000/- for the said vehicle and the balance of Rs. 71,338/- was paid by Indian Bank, Bhowanipur branch to which Bank the vehicle was hypothecated. It was also alleged that the workman paid the money for the said Matador Van and the same was registered in the name of Sri Vikram Roy who was stated to be the elder brother of the workman. In support of the defence, the management examined the Regional Administrative Manager and he deposed before the tribunal that he engaged a private detective to verify the information and that it was stated before the tribunal that he had seen the workman driving the matador van for which he invested the money to get the ownership. According to him, the appellant workman did not remain unemployed. He also stated that he had on many occasions seen the appellant driving Taxi and private car and Fiat car but he had not noted the numbers of the said cars or the taxi or the vehicles and that he was not able to produce any certificate from the Motor Vehicles Department showing the "ownership" of any vehicle registered in the name of the workman. The workman deposed before the Labour court that money which he had received from the management had been spent since he had to maintain a daughter and a son that he further stated he opened a fixed deposit of Rs. 40,000/- for making provision for his daughter's marriage. He further stated he had no other income and remained unemployed all through. He also stated that his elder brother was maintaining him and his family during all these years when he was unemployed and for that purpose he gave him Rs. 40,000/ -. He also stated that the rest off the money had been spent on account of loan which he had to incur during his unemployed period during all these years. The tribunal held that it was clear that after spending Rs. 40,000/-for acquiring the Matador Van, he still remained in possession of rs. 1,50,000/- (approx) to fetch him an income of about Rs. 1200/- per month at the rate of interest payable by the bank and ultimately the tribunal held that "i, therefore, hold that he does not remain unemployed because of the action of the company who obtained liberty from the Hon'ble court to retrench him on payment of that large cash amount. If the case goes against him, at present, he has nothing to stake, but on the other hand the company will suffer irreparable injury since there is no provisions in the statute to compensate the company in such event. So, the effect of the interim relief application in favour of the workman will be pernicious and that so that would therefore, be a repugnant consideration. "