WORKMEN OF DEWAN TEA ESTATE AND ORS. versus THE MANAGEMENT

548

SUPREME COURT REPORTS

[1964]

1963

WORKMEN OF DEWAN TEA ESTATE AND ORS.

November, 25

v.

THE MANAGEMENT (P.B. GAJENDRAGADKAR, K.N. WANCHOO AND · K.C. DAS GUPTA JJ.)

Industrial Disputes-Lay-off due to financial position or trade reasons-Whether justified-If common law right could be spelt out of s. 25 of the Industrial Disputes Act to declare lay-~ff-Standing Order No. 8-"Stoppage of supply" al(d "other causes beyond his control", meaning of-Industrial Disputes Act, 1947 (Act 14of1947), ss. 2(kkk) and 25C-Industrial Employment (Standing Orders) Act, 1946 (Act 20 of 1946).-Rule 8 of the Standing Orders.

As a result of the lay-off declared by the respondent in the 11 tea estates, managed by them an industrial dispute arose between the respondent and their workmen, the appellant. The respondent justified the lay-off on the ground thJt its financial position was very difficult and that the lay-off was appropriate in the interests of the employees and their own in order to avoid closure of business. The appellants urged, inter alia, that the depression in trade or financial difficulties which may be characterised as trade reasons did not justify the lay-off under the relevant Standing Order, and so, they justified their claim for full wages during the period of the lay-off. The Tribunal held that the relevant Standing Order No. 8 justified the lay-off, and the trade reasons resulting from the depression in trade and financial liabilities arising therefrom fell within the scope of the Standing Order. Alternatively, the Tribunal thought that even if the lay-off was not justified by the relevant clause of the Standing Order, the respondent had a common law right to declare a lay-off and this right was recognised by s. 25C of the Industrial Disputes Act, 1947 and since it is a statutory pro vision, it overrides the relevant clause in the Standing Order. In appeal by special leave:

Held:

(i) The Tribunal was not right in holding thats. 25C of the Industrial Disputes Act recognises the inherent right of the employer to declare lay-off for reasons which he may regard as sufficient or satisfactory in that behalf. No such common law right can be spelt out from the provisions of s. 25C. When the laying off of the workmen is referred to in s. 25C, it is laying off as defined by s. 2 (kkk), and so, workmen who can claim the benefit of s. 25C must be workmen who are laid off for the reasons contemplated by s. 2(kkk); that is all that s. 25C means. If in any case the lay-off is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and lay-off would be permissible only where one or the other of the factors mentioned by s. 2(kkk) is present, and for such lay-off compensation would be awarded under s. 25C.

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(ii) "Stoppage of supply" must, in the context, mean stoppage In regard to the factory,

of raw material or other such thing. "stoppage of supply" may mean the stoppage of tea leaves, or Workmen of in the case of field work, it may mean the stoppage of supply of Dewon Tea other articles necessary for field operations. "Supply" in the context E cannot mean money or funds.

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(iii) The last clause of r. S(a) (i) of the Standing Order which

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refers to "other causes beyond his control" would not take in the The Management financial difficulties of the companies. Oth~r causes beyond his control for one thing should be similar to the causes that have preceded; even otherwise there is no justification for the argument that the financial difficulty which is alleged to have confronted the respondent was beyond its control.

Rule S(a) (iii) which refers to temporary curtailment of produc tion must obviously be read in the light of r. S(a) (i) and if the case of the present lay-off does not fall under r. S(a) (i), r. S(a)(iii) would not improve the position.

(iv) The present dispute must be governed by r. 8(a)(i) of the respondent's Standing Orders. It cannot be accepted that the Standing Orders having been certified before the definition of the lay-off was introduced in the Act, the respondent is entitled to rely upon the said definition in support of the plea that the impugned lay-off was justified.

Management of Kairbetta /''state, Kotagiri v. Raja-manickam

& Ors., [1969) 3 S.C.R. 371, referred to.

C1v1L APPELLATE JURISDICTION: Civil Appeal No.

390 of 1963.

Appeal by special leave from the award dated December 11, 1959, of the Industrial Tribunal, Assam at Gauhati in Reference No. 7 of 1959.

C.B. Agarwal, J.N. Hazarika and K.P. Gupta,

for the appellants.

Sankar Bannerjee, P.K. Chatterjee, D.N. Gupta

and B.N. Ghosh, for the respondents.

November 25, 1963. The judgment of the Court

was delivered by

GAJENDRAGADKAR, J.-This appeal by special Gajendragadkar

leave arises from an industrial dispute between the the Management of 11 Tea Estates respondent, It appears that and the appellants, their workmen. the appellants raised a dispute against the respondent in regard to the lay-off declared by them in the 11

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estates m question m February, 1959. The said lay-off lasted for 45 days and the appellants' contention Workmen of was that the lay-off was not justified, and so, they Dewan Tea were entitled to their full wages for the period of the Estate and Ors. lay-off. The respondent's Managing Agents for the nine Companies that run the 11 tea estates in question, The Management resisted this claim on the ground that the lay-off was justified and they alleged that the appellants Ga1endragadkar were not entitled to anything more than the compensa- tion prescribed by section 25C of the Industrial Disputes Act, 1947 (hereinafter called 'the Act'). This dispute was referred to the adjudication of the Industrial Tribunal by the Governor of Assam under s. IO(l)(d) of the Act. The 11 tea estates which are concerned with this dispute were described in Appendix A to the order of reference. It is common ground that these 11 tea estates are run by nine Companies and M/s. Macneill and Barry Ltd. are the Managing Agents of all these companies.

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The case for the respondent was that the tea estates in question which are all situated in Cachar District had to face a long period of depression in trade by reason of the poor prices generally commanded by the tea produced by them. In 1959, the manage ment faced a very difficult financial position and it took the view that in the interests of the employees and its own business, it would be appropriate to lay off the workmen for a certain period in order to avoid closure of business. The circumstances which caused financial depression were beyond the control of the management and lay-off was, therefore, inevitable and fully justified.

On the other hand, the appellants urged that there were other tea estates in the district of Cachar which had to face similar problems; the labour costs incurred by the respondent were not higher than the corresponding costs incurred by the other tea estates, the burden of taxes was the same for all the tea estates in the district and the quality of the tea produced was relatively similar. They contended that the difficulty which the respondent had to face

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was partly the result of its mismanagement and neglect. They pleaded that the workmen . employed by the respondent had been promised continuous work throu- Workmen of ghout the ye11-r and the declaration of lay off for such Dewan Tea a long period as 45 days exposed them to the risk of Estate and Ors. semi-starvation. The appellants also urged that depre- ssion in trade or financial difficulties which may be The Management characterised as trade reasons did not justify the G . d - dk lay o!f ll;nder th~ releyant Standing Order, ~nd so, aJen 7ga ar they Justified their claim for full wages dunng the period of the lay off.

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The Tribunal has held that the relevant Standing Order No. 8 justified the lay off. The trade reasons the depression in trade and financial resulting from liabilities arising therefrom fell within the scope of the Standing Order; it has also held that the last clause in the Standing Order which was general in terms could be relied upon by the respondent in support of its plea that. the lay off was justified. In the alter native, the Tribunal thought that even if the lay off was not justified by the relevant clause in the Standing Order, the respondent had a common law right to declare a lay off and this right was recognised by s. 25C of the Act. According to the Tribunal, s. 25C recognises this common law right and since it is a statutory provi sion, it over-rides the relevant clause in the Standing Order. Having thus found that the lay off was justified, the Tribunal proceeded to examine the question as to whether the trade reasons on which the respondent It then considered the re relied had been proved. levant documentary evidence bearing on tlle point and noticed some general features applicable to all the tea companies before it. "They have suffered losses which are by no means inconsiderable", said the Tribunal, "and some of the companies have not been able to declare dividends in time during the last ten years, though others have declared them from year to year." The Tribunal rejected the respondent's contention that the losses were due to high labour charges, but it found that the tea companies were It was satisfied tllat not making adequate profits.

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the companies had reserves and large capital assets and would not have found it difficult to raise necessary Workmen of finances. On the whole, the Tribunal thought it Dewan Tea necessary to distinguish between the .different tea Estate and Ors. estates with which it was dealing, and having con- sidered their respective individual cases, it came to The Management the conclusion that out· of the nine companies, five companies need not have declared lay off for 45 days. Ga1endragadkar In its opinion, there was justification for lay off in their cases, but its duration should have been 21 days. Acting on this finding, the Tribunal has ordered that for the 24 days in excess of three weeks for which the lay off was justified the said companies should pay their workmen full wages and not merely the compensation prescribed by s. 25C of the Act. In regard to the remaining four companies, the Tribunal held that the lay off was fully justified, and so, the workmen were not entitled to full wages for the period of the lay off. In other words, the award made by the Tribunal partially granted relief to the appellants inasmuch as it gave them full wages against five companies for 24 days only. These five companies are: Bhubandhar, Doyapore, Western Cachar, Borak and Koyah. The . other four companies in respect of which the Tribunal has given no relief to the workmen are: Doodputlee, Majagram, Scottpore and Tarrapore. It is this award which has given rise to the present appeal by the appellants.

The first question which arises for our decision is whether the Tribunal was justified in holding that s. 25C recognises the common law right of the respon- dent to declare a lay off for reasons other than those specified in the relevant clause of the Standing Order. While dealing with this argument, we must proceed on the assumption that the financial difficulties ex perienced by the respondent at the relevant time which have been compendiously described by it as · constituting trading reasons for the lay off do not fall within the purview of the said relevant clause. The respondent's argument is that though the trading reasons may not justify the declaration of the lay off

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under the said clause, as prudent employers who must be given liberty to run their industry in the best manner they choose, they have a common law Workmen of right to declare a lay off if they feel that the alternative Dewan Tea to the lay off would be closure and acting bonafide Estate and Ors. they want to avoid closure and adopt the lesser evil of declaring the lay off. Does section 25C of the The Management Act justify this argument? Section 25C(l) which recognises the right of the workmen who are laid Gajendragadkar off, for compensation, provides that whenever a workman therein specified has been laid off, he shall be paid by the employer for whole of the period of the lay off, except for such weekly holidays as may in tervene, compensation at the rate prescribed by the section. The proviso to this section lays down that the compensation payable to a workman during any period of twelve months shall not be for more than 45 days; and this proviso seems to indicate that the legislature thought that normally the period of lay off within 12 months may not exceed 45 days. Section 25C(2), however, contemplates the possibility that the period of lay off may exceed 45 days, and it lays down that if during any period of 12 months, a work- man is laid off for more than 45 days, whether con tinuously or intermittently, he shall be paid com pensation in the manner indicated by it. Thus, the position is that workmen who are laid off are entitled to compensation and the method in which the said compensation has to be calculated has been prescribed by the two clauses of s. 25C.

It is, however, significant that when s. 25C deals with workmen who are laid off and proceeds to pres cribe the manner in which compensation should be paid to them, it is inevitably referring to the lay off as defined by s. 2(kkk) of the Act. The said section defines a "lay-off" (with its grammatical variations and cognate expressions) as meaning:

"the failure, refusal, or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or for any other reason

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1963

Workmen of Dewan Tea Estate and Ors.

to give employment to a workman whose name is borne on the muster rolls of his industrial es tablishment and who has not been retrench ed."

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It would be legitimate to hold that lay off which pri- The Management marily gives rise to a claim for compensation under G . ;;-- dk . s. 25C must be a lay off as defined by s. 2(kkk). If a1en 'j'ga m the relevant clauses in the Standing Orders of industrial employers make provisions for lay off and also pres cribe the manner in which compensation should be paid to them for such lay off, perhaps the matter may be covered by the said relevant clauses; but if the relevant clause merely provides for circumstances under which lay off may be declared by the employer and a question arises as to how compensation has to be paid to the workmen thus laid off, s. 25C can be invoked by workmen provided, of course, the lay off permitted by the Standing Order also satisfies the requirements of s. 2(kkk). Whether or not s. 25C can be invoked by workmen who are laid off for reasons authorised by the relevant clause of the Standing Order applicable to them . when such reasons do not fall under s. 2(kkk), is a matter with which we are not directly concerned in the present appeal. The question which we are concerned with at this stage is whether it can be said that s. 25C recognises a common law right of the industrial employer to lay off his workmen. This question must, in our opinion, be answered in the negative. When the laying off of the workmen is referred to in s. 25C, it is the laying off as defined by s. 2(kkk), and so, workmen who can claim the benefit of s. 25C must be workmen who are laid off and laid off for reasons contemplated by s. 2(kkk); that is all that s. 25C means. If any case is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and lay off would be permissible only where one or the other of the factors mentioned by s. 2(kkk) is present, and for such lay off compensation would be awarded under s. 25C. Therefore, we do not think that the Tribunal was right in holding that s. 25C recognises the inherent right

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of the employer to declare Jay off for reasons which he may regard as sufficient or satisfactory in that behalf. No such common Jaw right can be spelt out Workmenof from the provisions of s. 25C. Dewan Tea Estate and Ors. That takes us to the question whether the lay v off in the present case is justified under Rule 8 of the Th M · g 1 Standing Orders which have been duly certified under ~nc:._ emen the Industrial Employment (Standing Orders) Act Gajendragadkar (No. 20 of 1946). The relevant portion of Rule 8 reads thus:-

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"Closing and re-opening of sections of the in dustrial establishments, and temporary stoppages of work, and the rights and liabilities of the employer and workmen arising therefrom .

(a) (1) The Manager may at any time in the event of fire,catastrophe, break down of machinery, stoppage of power or supply, epidemic, civil commotion, strike, extreme climate conditions or other causes beyond his control, close down either the factory or field work or both without notice.

(iii) In cases where workmen are laid off for short periods on account of failure of plant or a temporary curtailment of production, the period of unemployment shall be treated as compulsory leave either with or without pay, as the case may be, when, however, workmen have to be laid off for an indefinitely fong period, their services may be terminated after giving them due notice or pay in lieu thereof."

It will be seen that the circumstances under which a lay off can be declared have been specifically des cribed by Rule 8(a)(J). Two grounds have been ur~ed b~fore us by Mr. Banerj~e in support of the Tnbunal s conclusion that the impugned lay off is justified. He contends that the clause "stoppage of .supply" may cover cases of stoppage of financial assistance. The argument is that in 1959 when the lay off was declared, the companies found that they

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could not raise enough money to carry on the operations in the tea gardens, and so, it was a case of stoppage Workmen °1 of supply. If that be so, the lay off would be justified. In our opinion, this argument is wholly misconceived. Dewan Tea Estate and Ors. Stoppage of supply must, in the context, mean stoppage In regard to of raw material or other such thing. The Managementthe factory, the stoppage of supply may mean the stoppage of tea leaves, or in the case of field work, Ga1endragadkar it may mean the stoppage of supply of other articles It is impossible to necessary for field operations. accept the argument that "supply" in the context can mean money or funds.

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The other argument urged before us is that the last clause of R. 8(a)(i) which refers to "other causes beyond his control" would take in the financial difficul ties of the Cos. We are not inclined to accept this argument also. Other causes beyond his control for one thing should be similar to the causes that have preceded; even otherwise we see no justification for the arguinent that the financial difficulty which is alleged to have confronted the respondent was beyond its control. In fact, on this point the Tribunal has made a definite finding that though the respondent had produced a letter from the Chartered Bank of the 9th April, 1959 in which the Bank expressed its re luctance to afford financial facilities, it was by no means clear that the Companies acting through their Managing Agents completely failed to raise the necess ary finances at the relevant time. As the Tribunal has observed, the letter written by the Bank shows that it had promised to consider the matter and write to the Companies again; no evidence was produced to show what the Bank subsequently stated and whether finances became available or not. On the other hand, it is clear that at the end of the period of the lay off, all the Cos. started operating their tea gardens and we have been told that the operations have continued uninterrupted ever since. Besides, the letter on which reliance is placed was written in April, 1959, whereas the lay off was declared in February, 1959. Therefore, there is no evidence on the record which can justify

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It is true, as Mr. Banerjee has pointed out,

the assumption made by Mr. Banerjee when he raised the contention that the financial difficulties faced by the respondent at the relevant time were beyond Workmen of its control. The fact that some of the Cos. have Dewan Tea been incurring losses and have not made profits would Estate and Ors. not necessarily show that the financial position which they had to face at the relevant time was beyond their The Management control. that the three Cos. Scottpore, Tarrapore and Dood- Gajendragadkar putalee have not been able to pay dividends between 1951 to 1958 and it may be that with the exception of the year 1954, the position of all of them is not very satisfactory; but, on the other hand, there are other tea gardens in the same area and it is not suggested or shown that their position was any better than that It is also true that of the companies before us. at the relevant time, all the tea companies in Cachar in general, and the Managing Agents of the nine companies before us in particular M/s. Macneill and Barry Ltd. were trying their best to persuade the Assam Government to give them some relief in the matter of taxation. But the question which we have to decide is whether the financial position disclosed by the evidence on the record can be described as constitu- ting a cause beyond the control of the respondent. We are not inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by Rule 8(a)(i) before the clause in regard to other causes beyond his control was introduced, it would not be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off could be justified by Rule 8(a)(i).

Rule 8(a) (iii) which refers to temporary curtail ment of production must obviously be read in the light of R. 8(a)(iJ and if the case of the present lay off does not fall under R. 8 (a)(i), R. 8(a) (iii) would not improve the position.

Mr. Banerjee has then urged that the present Standing Orders which were duly certified under the

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Standing Orders Act came into force in 1950, whereas s. 2(kkk) which defines a lay off was added to the Workmenof Act by the Amending Act 43 of 1953 on the 24th Dewan Tea October, 1953. His argument is that the Standing Estate and Ors. Orders having been certified before the definition of the lay off was introduced in the Act, the respondent The Management is entitled to rely upon the said definition in support of the plea that the impugned lay off was justified. G . -;- a1en ';gadkar Basing himself on the definition of the lay off as prescribed by s. 2(kkk), Mr. Banerjee urged that this definition was wider than R. 8(a)(i) of the respondent's Standing Orders and would take in the trading reasons on which he relies. We are not prepared to accept the argument that in the present case, the respondent can rely on the definition of lay off as prescribed by It will be recalled that the Standing Orders s. 2(kkk). which have been certified under the Standing Orders Act became part of the statutory terms and conditions of service between the industrial employer and his employees. Section 10(1) of the Standing Orders Act provides finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modifica tion thereof came into operation. If the Standing Orders thus become the part of the statutory terms and conditions of service, they will govern the relations between the parties unless, of course, it can be shown that any provision of the Act is inconsistent with the said Standing Orders. In that case, it may be per missible to urge that the statutory provision contained in the Act should over-ride the Standing Order which had been certified before the said statutory provision was enacted. Assuming without deciding thats. 2(kkk) may include the trading reasons as suggested by Mr. Banerjee, the definition prescribed by s. 2(kkk) is not a part of the operative provisions of the Act, and so, the argument that there is inconsistency between the definition and the relevant Rule of the Standing Orders does not assist Mr. Banerjee's case. If there had been a provision in the Act specifically providing

the Standing Orders

that

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that an employer would be entitled to lay off his workmen for the reasons prescribed by s. 2(kkk), it might have been another matter. The only pro- Workmenof vision on which reliance has been placed is contained Dewan Tea in s. 25C and that, as we have already seen, merely Estate and Ors. takes in the definition of lay off inasmuch as it refers to the workmen as laid off and provides the The Management manner in which compensation would be paid to them. An alleged conflict between the definition Ga1end7gadkar of lay off and the substantive rule of the Standing Orders would not, therefore, help the respondent to contend that the definition over-rides the statutory conditions as to lay off included in the certified Standing Order. Therefore, we do not think Mr. Banerjee would be entitled to contend that s. 2(kkk) of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have not thought it necessary to consider whether the broad and general construction of s. 2(kkk) for which Mr. Banerjee contends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words "for any reason" found ins. 2(kkk) will not take in the trading considerations. He contends and prima facie with some force that the said words must be construed ejusdem generis with the words that precede them. (vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam & Ors.)< 1 > According to him, the circumstances specified in s. 2(kkk) which justify a lay off must be integrally connected with production, and so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are: they are beyond the control of the employer, are expected to be of a short duration, and are of compulsive effect. As we have already indicated, we do not think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dis- (!)

[1960] 3 S.C.R. 371.

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pute must be governed by Rule S(a)(i) of the respon dent's Standing Orders.

1963

Workmen of Dewan Tea

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h ecause w atever may

In the result, we reverse the finding of the Tribunal Estate and Ors. !hat the lay <!ff 4eclared by the .respon~e!lt for 45 days m 1959 was Justified. That bemg so, 1t 1s unnecessary t to consider the individual cases of the nine respective "''he M h · ,, een t elf compames, Gajendragadkar respective financial position, under the relevant Rule they could not validly declare a lay off at all, nor could they have declared the lay off in exercise of their alleged common law right. The questions referred to the Tribunal must, therefore, be answered in favour of the appellants. The appeal is accordingly allowed and the appellants' claim for full wages for the 45 days of lay off in respect of the 11 tea gardens is awarded to them. The appellants will be entitled to their costs

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Appeal allowed.

1963

November. 25

N.A. MALBARI AND BROS. v. COMMISSIONER OF INCOME-TAX, BOMBAY (A.K. SARKAR, M. HIDAYATULLAH AND J.C. SHAH,

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Income Tax-Penalties-One earlier, the second on disclosure of full facts-Whether justifiahle-Tncome-tax Act, 1922 (II of 1922), s. 28.

The appellant, a firm of Surat, had a branch at Bangkok, to which it exported cloth, and the branch also made purchases locally and sold them. During the war the business of the branch had been in abeyance, but was re-started after the termination of the hostilities. In its return for the assessment year 1949-50 the appellant did not include any profit of the branch, but stated that the books of account of branch were not available, and therefore its profits might now be assessed on an estimate basis subject to