Judgment:
APO No.355 of 2012 WP No.1924 of 2003 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE SMT.
SHIBANI BASU Versus ICI INDIA LIMITED & ANR.
BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR The Hon'ble JUSTICE ARIJIT BANERJEE Date : 19th November, 2014.
For Appellant : Mr.Bikash Ranjan Bhattacharya, Sr.Advocate Mr.K.H.Dassan, Advocate Ms.Mala Chakraborty, Advocate For Respondent No.1: Mr.Abhijit Chatterjee, Sr.Advocate Mr.Arindam Mukherjee, Advocate Mr.B.Boral, Advocate The Court : This appeal is against the order dated 18th June, 2012, passed by the Learned Single Judge.
In brief the facts that led to the present situation are narrated as under.
The appellant herein was an employee working in the fiRs.respondent company right from 1981 as a lady staff and discharged her duties for a period of 17 yeaRs.She raised a labour dispute against the management contending that she was illegally terminated on 31st December, 1997 under the guise of voluntary 2 retirement from service when no such voluntary retirement scheme was introduced in the company and the appellant being singled out for such proposal is nothing but discriminatory exercise of power by the respondent employer.
According to her, all along without any blemish she discharged the duties and in spite of she being senior-most employee someone else much junior to her was preferred for promotion.
Therefore, the Industrial Tribunal had to interfere with the order of termination.
Labour court by order dated 20th June, 2003 based on the fact that there was no written document to establish that appellant workman had submitted a letter for early retirement and also in the absence of structured scheme of the voluntary retirement, opined that it is nothing but a discriminatory exercise of authority by the respondent company.
Therefore, the labour dispute was decided in favour of the appellant-workman.
Aggrieved by the same, Management approached Learned Single Judge before this Court in W.P.No.1924 of 2003.
Case of the Management before the Learned Single Judge was, the Tribunal did not refer to the various documents relied upon by the company to show the intention of voluntary retirement on the part of the workman, hence the decision arrived at by the Tribunal that voluntary retirement since not proved, natural presumption would be illegal termination of the workman is baseless.
In other words, according to the writ petitioner/management, when host of documents were relied upon by the Management including explanation or the reason why such letter of offer came to be made on 5th December, 1997which clearly indicate that between 1996 to 1998 3 when Mr.Dhiraj Chandra Mahato was the business in-charge manager, a decision was taken to close down 34, Chowringhee office and during the talks for such closure the appellant-workman also took part in the said decision and at her request the proposal for her early retirement from service was negotiated and arrangement was made for payment of Rs.2 Lacs as compensation.
Consequent to this letter of offer several other documents came into existence at the behest of the Management and also the appellant-workman, which were not at all looked into and discussed by the Tribunal.
Therefore, the assessment of the material was totally absent which ultimately resulted in perveRs.finding against the Management.
The Learned Judge after taking into consideration of this argument of the writ petitioner and also the documents relied upon by the writ petitioner, which are not disputed by the appellant-workman, was of the opinion that Labour court ought to have gone into the real issue whether there was a forcible voluntary retirement imposed on the appellant-workman or not.
According to the Learned Judge, the Labour court ought not to have presumed such a fact when several material facts were placed before the Labour court to arrive at right conclusion.
With this opinion the Learned Judge remanded back the matter for fresh consideration based on the evidence already produced by the parties, both oral and documentary.
Aggrieved by the same, the present appeal is filed on behalf of the workman contending that the Tribunal arrived at a factual finding and there is no 4 justification for the Learned Single Judge to propose additional issue to be framed for consideration but all the formalities of regular adjudication process is not applicable to the proceedings before the Labour court.
He places reliance on (1993).SCC386to contend that Labour court is not bound by technical rules of procedure, places reliance on 1963(2) Labour Law Journal, page 436 to contend that the ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with the ultimate object in view that industrial disputes are settled by industrial adjudication on principles of fair play and justice.
He also relies upon (2010).SCC192to contend that the ultimate object of adjudication process in matters relating to labour disputes must be to do social justice in order to bring industrial peace.
Based on the principles laid down in the above cases, learned Advocate for the appellant contends that none of the documents relied upon by the respondent company are of use for the respondent to establish that there was acceptance of voluntary retirement and on the face of the records story of voluntary retirement deserves to be rejected.
As against this, learned Advocate representing the respondent- Management, places his fiRs.and foremost submission regarding maintainability of the appeal contending that by virtue of Clause 15 of the Letters Patent since the Learned Judge did not adjudicate the rights of the parties, it does not amount to an appealable order.
According to him, in a matter of private contract of employment, there need not be structured scheme of voluntary retirement and 5 the parties can evolve such package depending upon the facts and circumstances of each case and the present case calls for such individual consideration.
The stand of the respondent company is since there was a decision to close Chowringhee office, many of the employees were shifted to Gurgaon office and appellant-workman was not inclined to go to Gurgaon office and she could not be accommodated at the registered office having only minimum staff.
Therefore, at her request the proposal of voluntary retirement was raised with the active participation of the then business in charge manager, who was examined as OPW1 before the Labour court.
He also takes us through several documents which were part of records before the Labour court.
We have also gone through the evidence.
As a matter of fact, the scope of judicial review in these matters is very limited.
The matter came to be entertained since finding of the Labour court had no basis, in other words, there was no discussion of material to arrive at the conclusion by the Labour court.
Learned Judge opined that the principal controveRs.which ought to have been gone into depending upon the material already placed on record was whether there was forcible voluntary retirement imposed on the appellant-workman and whether the conduct of her subsequent to 5th December, 1997 letter of offer by the company would indicate she was reluctant to accept or she was forced to accept the terms of the early retirement.
Learned Judge after referring to the detailed argument of the learned Advocate for the writ petitioner opined that Tribunal has not directed 6 itself to discuss any of these issues, especially the relevant issue whether there was such imposition to accept the terms of early retirement.
It is needless to say, in a case of private contract of employment, the terms of the contract could be arrived at by deliberations between the parties.
Similarly, in the absence of any service rules indicating structured voluntary scheme or equivalent situation, it is left to the parties to arrive at a conclusion or settlement.
However, said conclusion or settlement must be voluntary and it should not work out to the disadvantage of one of the parties.
In other words, whether the parties understood what were the terms of the settlement and whether they were happy to act upon those terms and settlement would be relevant.
According to the respondent-management, the parties after deliberations arrived at conclusion.
The offer of company by letter dated 5th December, 1997 indicate, the terms and conditions were sent to the appellant-workman and it was entirely within her discretion whether to accept it or not.
But her subsequent conduct and withdrawal of amounts from time to time also becomes relevant material to understand whether there was such voluntariness on her part to proceed with the proposal arrived at or not and according to them, the subsequent conduct which was totally ignored by the Labour court shows that she accepted the terms of proposal and there was no forcible voluntary retirement at the behest of the respondent company.
The discussion of the Labour court definitely is not on the above lines and there is total deviation in the 7 said discussion.
The Labour court went on discussing about the structured scheme and the appellant being singled out.
While considering forcible voluntary retirement, what has to be seen is whether there was compulsion on the part of the appellant-workman to accept the terms of the settlement or not, which has to be ascertained from the facts available on record.
This discussion is totally ignored by the Tribunal, therefore the Learned Single Judge was justified in saying that the Labour court has to pay attention to this part apart from other cardinal principles of labour laws.
As a matter of fact, whatever right that accrued to the appellant-workman was set aside by virtue of the impugned judgment of the Learned Single Judge.
Therefore, the argument that the appeal is not maintainable is not palatable to us.
Accordingly, we find that the appeal deserves to be dismissed as both the parties are at liberty to put forth their contentions which could be taken care of by the Labour court in the light of the above observations.
Having regard to the fact that litigation is pending since 1997, we direct the Tribunal to dispose of the matter within three months from the date of receiving communication of this order.
(MANJULA CHELLUR, CJ.(ARIJIT BANERJEE, J.) SN.
AR(CR)