G C CHATTERJEE Vs. REMINGTON RAND INDIA LTD

JUDGEMENT

(1.) There are three petitioners in this application. They and 17 other workman were employed in the service department of respondent No. 1. On or about the 1st April, 1955 Mr. A. J. Maynard, Personal Manager of the said company, served notices upon the 20 workmen to the effect that it had been evident for sometime that the company's service department at Mangoe Lane was over-staffed and the company had decided to relieve the position by offering these workmen, who were found surplus, alternative employment in its factory. It was indicated that the workmen will be transferred to the factory with effect from the 4th April, 1955 and thereafter the Rules and Regulations as applicable to the factory staff would be applicable, and salaries will be adjusted accordingly. It was however stated that the gross salary of the staff concerned will remain the same. On the 4th April, 1956 the workmen affected intimated to the management that the work in the factory was quite different from that in the Service Department, and there was no case for retrenchment. In fact it was pointed out that there were more junior employees and in case of pure retrenchment, the 20 workmen concerned could not be singled out for retrenchment. In short, the workmen objected to the transfer, which would result in an alternation of their terms of service. Thereafter a certain incident occurred on the 5th April, including an alleged assault on Sri Onkar Nath Chadda, the Manager of the Service Department. On the 6th April, 1955 these 20 workmen were discharged from service for acts of misconduct, namely, wilful disobedience of the company's orders, irregular strike, intimidation of the company's loyal workers and mob assault on the Manager. Thereupon an industrial dispute arose between the workmen and the com- pany. By Government order dated 22nd April, 1955 read with two corrigenda dated the 9th May, 1955 and 24th August, 1955 respectively, the disputes between the company and the workmen was referred to the Fifth Industrial Tribunal, West Bengal. The order of reference related to the following disputes :

(2.) Before the Industrial Tribunal it was, inter alia, argued that the company had standing orders and that the order of transfer was justified by the provisions thereof, particularly, Clause 12-A (3). A copy of these standing orders is annexed to the affidavit-in-opposition filed on behalf of the company, and marked as annexure "A". The heading of the standing orders runs as follows :

(3.) The Tribunal also considered the matter upon the alternative assumption that the Standing Orders extended to Mechanics, and then came to the conclusion that Sub-clause (3) of Clause 12 appeared to be out of place. What he really meant was that on the facts there could be no wilful insubordination if the order itself was not lawful and reasonable. The Tribunal decided in favour of the workmen on the Issues Nos. (a), (b) and (c). With regard to the relief, the Tribunal considered the incident relating to the alleged mob-assault on Sri Chadda, the Manager. In an earlier part of his award the Tribunal considered the evidence and came to the conclusion that there was no sufficient evidence to hold as to who actually was responsible for this assault. In the concluding portion of his award, the Tribunal however held that although there was no satisfactory evidence as to who were responsible for committing the assault, still it was clear to the Tribunal that the Manager was roughly handled and as these employees were there, they could not totally avoid the responsibility of the said incident. I must in passing mention that the Tribunal followed a curious procedure in coming to this conclusion. In the earlier part of the Award it had stated that the three occupants of the car were present in Court but did not come to the box. In the concluding portion it is stated that "from the evidence of the other three occupants of the car, whose ex parte evidence is before me, and also from the evidence of Sri Chaddaha I am satisfied that he was roughly handled. To malhandle the Manager before the office is certainly subversive of discipline. So I cannot totally exonerate them of all the blame". In the result, the Tribunal ordered that all these 20 workmen would be reinstated but as a result of their complicity in the mob-assault incident, they would get half basic wages and half dearness allowance for the period of forced unemployment, with effect from the date of the order of transfer, upto the date they were put back in employment, save and except three of the employees who were to get full wages and dearness allowance. This Award was made on the 18th February, 1950 and was published in the Calcutta Gazette Extraordinary on the 15th March, 1956. From this Award the company preferred an appeal being Appeal No. Cal. 20 of 1956. In the Memorandum of appeal, a point was taken that there were substantial questions of law, inter alia, because the Tribunal failed to appreciate the correct meaning and effect of the Standing Orders and misconstrued the same. With regard to the Standing Orders the Appellate Tribunal found that the original Tribunal was wrong in holding that the Standing Orders did not govern the conditions of service of the workmen concerned. As I have already stated above, the findings of the Tribunal with regard to the Standing Orders are erroneous and the finding of the appellate Tribunal upon this point is correct. The appellate Tribunal held that under the Standing Orders, which did apply in the case of the workmen concerned, it was open to the company to order transfer of the employee from one Establishment to another or from one Department to another within a Division, provided the conditions of service were not altered. The appellate Tribunal further held that on the facts and circumstances the conditions of service were altered to the prejudice of the workmen and as such the transfer was not justified. In the result, the appellate Tribunal agreed with the findings of the original Tribunal on Issues Nos. (a), (b) and (c). With regard to the relief given, the appellate Tribunal agreed with the findings of the original Tribunal in respect of 17 workmen but with regard to the remaining three who are the petitioners before me, the appellate Tribunal differed with the conclusion of the original Tribunal as to the complicity of these three persons in the alleged incident of assault in the afternoon of 5th April, 1955 and held that the Tribunal was not right in ordering reinstatement of these three persons. Therefore the Award, so far as these three persons were concerned, which had allowed reinstatement and compensation, was set aside, while the Award, so far as the others were concerned, was affirmed. It is against this finding of the appellate Tribunal that this Rule is directed.