Civil Appeals Nos
717 to 742 of 1957
Appeals by special leave from the decision dated August 31 1956 of the Labour Appellate Tribunal of India Calcutta in Appeals Nos
Cal 45 to 52 5961 63 65 78 and 98 of 1955
A B N Sinha and B P Maheshwari for the appellants in all the appeals
L K Jha and D P Singh for respondents Nos 1 4 5 7 8 10 14 15 21 24 26 to 30 36 37 and 39
PK Chatterjee for respondents Nos 6 9 12 17 20 22 23 25 31 and 32
L K Jha and R C Prasad for the Intervener
1960 February 12
The Judgment of the Court was delivered by DAS GUPTA J These appeals are against the order of the Labour Appellate Tribunal of India at Dhanbad by which the Labour Appellate Tribunal confirmed the order of the Industrial Tribunal awarding a retaining allowance to unskilled workmen at a rate of 5 of the basic wages for the period of the off season of numerous sugar industries in Bihar
The appellants companies the employers in these sugar industries also challenge the correctness of the order made by the Industrial Tribunal and confirmed by the Labour Appellate Tribunal awarding the workmen attending the proceedings before the Industrial Tribunal wages travelling allowance and halting allowance and further directing that the workmen attending these proceedings would be treated on special leave with pay for the period of such attendance
As regards these orders the appellants contend that they run counter to the pronouncements of this Court in Punjab National Bank Ltd vs Sri Ram Kanwar Industrial Tribunal Delhi 1
This contention we are bound to say is correct
Whatever might have been said in support of the view taken by the Tribunals in ordering payment of these allowances and of granting special leave to workmen attending proceedings of necessity if the question was res integra we are bound by the authority of Punjab National Bank s Case 1 to 1  126 992 hold that no such allowances are payable and no such order garanting leave may be made
The order of the Tribunals below allowing travelling allowance and balting allowance and special leave to workmen attending proceedings of necessity must therefore be set aside
Mr Sinha learned counsel for the appellants however has undertaken on their behalf that no restitution will be claimed of allowances which have already been paid
This brings us to the main question in controversy in these appeals
That question is whether retaining allowance should be paid to unskilled workers in these industries during the off season
Disputes over this question have been going on for many years and committee after committee has wrestled with the problem for arriving at a formula acceptable to both employers and labourers but in vain
In 1950 a reference as ultimately made to Mr Justice B P Sinha as he then was as regards these disputes about retaining allowance
The award made by him provided for retaining allowance to skilled and semiskilled workmen but none to unskilled workmen
Before the Appellate Tribunal who heard the appeal against that award the labourers and employers came to an agreement that no retaining allowance would be payable to the unskilled workmen
This award was in operation for a period of two years but was thereafter determined by notice given by workmen followed up by similar notice by employers
The reference out of which the present appeals arise included several other matters besides retaining allowance to seasonal employees but with those we are no longer concerned in these appeals
Nor are we concerned with the question of retaining allowance to skilled and semiskilled workmen as that part of the award was not disputed by the present appellants
On the question of retaining allowance the main contentions on behalf of the employers were that agriculture was the primary occupation of these persons and the employment in the sugar factory was merely a subsidiary occupation that the claim for retaining allowance was really in the nature of unemployment relief which it was the duty of the State and not the 993 industry to give that the relationship between the employers and these employees does not exist in off season and so no payment of anything in tile character of wages could possibly be claimed by the labour
The Tribunal overruled all these objections
It was of opinion that the working season in the factory completely covers the paddy harvesting season in North Bihar where most of the factories are situated so that the workmen the bulk of whom belong to the landless labourers  class in the rural areas do not obtain employment in the off season
It also pointed out that the seasonal employees are entitled to provident fund gratuity and also bonus and that their connection with the employers is not broken during the off season
Accordingly it awarded retaining allowance of 5 to all unskilled employees to be paid every year at the beginning of the season when they report themselves to duty
In agreeing with the Tribunal s conclusion the Appellate Tribunal pointed out further that the grant of seasonal allowance to unskilled labour in the industry would promote stability good relations and efficiency
The question whether the retaining allowance should be paid to seasonal workers during the off season is one of great complexity
A measure of the complexity is provided by the conflict in the view expressed by many committees who examined the matter
While it will serve no useful purpose to set out these different views and the reasons given in support thereof it is proper to mention that with the exception of the Labour Enquiry Committee no committee ever recommended payment of retaining allowance to unskilled workmen though several of these recommended payment of such allowance to skilled and semi skilled workmen
When the matter comes before the Tribunals for adjudication they have to decide the matter on the materials before them and it is not possible to derive much assistance from these reports of the committees
The real difficulty in coming to a conclusion lies in the fact that while there is no doubt on the one hand of the plight of the seasonal workmen during the off season if they during such period remain 994 prartically unemployed there is some force also in the argument that it is neither just nor fair to treat these unfortunate people as the special responsibility of the particular industry or the factory where they are seasonally employed
It is difficult not to agree with the opinion that the relief of unemployment by arranging suitable alternative employment or an alleviation of the distress of such seasonally unemployed persons by providing unemployment insurance benefits or by other modes is primarily the function of the government of the country
To say that is however not to say that the industry where they are seasonally employed should look on unconcerned and play no part in alleviating the distress of the people who have contributed to the prosperity of the industry by their labour even though for only a part of the year
While these considerations on either side are common to claims for retaining allowance for all seasonal workmen in all industries the special facts and circumstances of the categories of workmen and different local circumstances in different industries play an important part in deciding the question
Thus skilled and semi skilled workers have often been able to put forward a strong case by pointing out that the specialized skill acquired by them makes it difficult for them to obtain suitable alternative employment in the off season
Employers also often find it to their own interest to pay such categories of workmen some retaining allowance as an inducement to them to return to their factories when the season commences
In the present appeals we are concerned with the case of unskilled workmen only
It is obvious as has been noticed by both the Tribunals below that the employers feel that there is such a glut in the supply of unskilled labour in Bihar that retaining allowance or no retaining allowance a sufficient supply will be available for the industries
That is why the employers contend that they ought not to be asked in an industrial adjudication to pay retaining allowance to unskilled labour
We do no think it will be fair to say that merely because the employers have agreed to pay retaining allowance to skilled labour their opposition to such payment of 995 some such allowance to unskilled labour is unjustified
In deciding whether the principles of social justice which it is the aim of industrial adjudication to apply justify the payment of retaining allowance to unskilled workmen in these sugar industries it is necessary to take into account a the opportunities of alternative employment in the off season that will be available to such workmen b the degree in which such workmen can be said to have become attached to the particular factory where they work c the likely benefit to the industry if such workmen are induced to return to the factory by the incentive of retaining allowance to be paid when the season commences d the capacity of the industry to bear the burden of retaining allowance
The capacity of the appellant employers to bear the additional burden resultant from the 5 retaining allowance ordered by the Tribunals below has not been disputed before us
The position is however far from clear as regards the existence of alternative opportunities available to unskilled labour in the Off season
It was found and we must proceed on the basis rightly found that the working season of the sugar industry in North Bihar where most of the factories concerned in the present appeals are situated completely covers the paddy harvesting season
That however is slender material for any conclusion as regards the existence of opportunities of alternative employment for these unskilled workmen
The appellate Tribunal has said that the grant of seasonal allowance to unskilled labour in the industry will promote stability good relations and efficiency
Except in so far as this conclusion is based on the general probability that newly recruited labour at the commencement of the season is likely to be less efficient and less disciplined than men who have worked in previous seasons this does not appear to have been based on any concrete evidence on the point
Nor is it clear from the materials on the record that unskilled workmen employed in a particular factory consider themselves attached to that factory
It appears to be clear that once the season is over the unskilled workmen cease to have any contractual relations with the employers and may rejoin on the com 996 mencement of the season or may not rejoin at their sweet will
As regards the observations of the Tribunal that  seasonal employees are entitled to the benefit of provident fund gratuity and also bonus which shows that in fact their connection with the employers is not broken  the materials on the record Are too scanty for arriving at any definite conclusion
In consideration of the nature and extent of the materials on the record we are of opinion that for alleviating the distress of unskilled workmen in these sugar factories with whom we are concerned in the present appeals a much better course will be to raise the wage structure with an eye to this fact that for a part of the off season at least when they remain unemployed than to pay a retaining allowance for the entire off season
The appellant s counsel readily agrees that the fact that these unskilled workmen find employment in the sugar factories only for a few months and are in comparative difficulty in the matter of finding employment during the remaining months should be taken into consideration in fixing their wages
We are informed that a Wage Board entrusted with the task of fixing the wages of the workmen concerned in these disputes is sitting at the present time
The interests of both the employers and labour will we think be best served if instead of confirming the order made by the Appellate Tribunal as regards the retaining allowance the workmen will raise this question of raising their wages in view of the seasonal nature of their employment before this Wage Board
We have no doubt that such a claim will be sympathetically considered by the Wage Board especially as the employers have through their counsel recognized before us the reasonableness of their claim
The appellants have through their counsel also undertaken that they will not claim restitution of the amounts already paid as retaining allowance and further that they will continue to pay the retaining allowance for the next season half at the commencement of the season and the other half mid way during the season till the wages have been fixed by the Wage Board
Accordingly we allow the appeals and set aside the order passed by the Labour 997 Appellate Tribunal of India Dhanbad as regards retaining allowance to unskilled workmen and also its order as regards payment of halting allowance and travelling allowance and wages to workmen attending proceedings of necessity of the Industrial Tribunal
But as has been mentioned earlier the appellants have undertaken not to seek restitution as regards the halting or retaining allowance already paid and further that they will continue to pay retaining allowance for the next season half at the commencement of the season and the other half mid way during the season till the wages are fixed by the Wage Board
There will be no order as to costs
Appeal allowed


Summary:
By means of a will the respondents husband autliorised her to adopt the appellant and the will was duly registered after the death of the testator
The relevant portion of the will ran thus Under this will I am authorising the said Champalal Ishwardas to execute the same
I have appointed him the executor of this will
Under the said will the said Champalal alone shall be the full owner of my entire movable and immovable property and the executor of the will after my 811 death if I adopt him during my lifetime or even if my wife adopts him after my death
 The appellant applied for appointment of a curator under S192 of the Succession Act but subsequently the parties entered into an agreement for arbitration in the matter
Three arbitrators were appointed and the time for making the award was extended by the Court on their application
The arbitration agreement stated that the arbitrators had to decide what should be the respective rights of the parties in the estate in case the respondent adopted the appellant
An award was made and filed in Court by the arbitrators to the effect that the respondent should adopt the appellant according to Hindu Law within four months failing which the appellant would be their and executor of the entire property of the deceased and the respondent would be entitled to a maintenance of Ks
200 per mensem
But it in spite of the respondent s readiness to adopt the appellant refused to be adopted within four months he would not have any right in the property nor would he be the executor
The award was at first unregistered and on being returned it was subsequently registered and refiled in Court
The attorney of two of the arbitrators furnished to the Sub Registrar a list of the property covered by the award
The proceedings under the Succession Act and the were then separated
The respondent made an application under section 142 Of the  and the appellant applied for setting aside the award
The Court passed a decree in terms of the award
The High Court on appeal by the appellant upheld the award
On appeal by a certificate of the High Court the appellant contended that being an executor lie could not refer the matter to arbitration that the award was not filed within the time prescribed by the Limitation Act that it was not registered according to law that the First Additional judge had no jurisdiction to extend time for making the award that the arbitrators were guilty of misconduct and the award was in excess of the power given to them and that even if the award was proper and legal the respondent having refused to adopt the appellant the decree should have been as provided by the award on the happening of the contingency and the Court passing the decree had no jurisdiction to take subsequent events into consideration
Held that the filing of the award by the arbitrators after notice to the parties was not barred by limitation as article 178 of the Limitation Act applied to applications made by the parties and not to the filing of the award by the arbitrators
The award required registration but the filing of an un registered award under section 49 of the Registration Act was not prohibited what was prohibited was that it could not be taken into cvideince so as to affect immovable property falling under section 17 Of the Act
812 The Court had jurisdiction to entertain the application for filing the award and to extend time for filing it
By the will the appellant could not get the property of the Bai testator nor was he constituted an executor except in the event of his being adopted and therefore he could enter into the arbitration agreement
The agreement for arbitration having specifically stated that the consequences of adoption or non adoption were to be decided by the arbitrators they rightly laid down what was to happen if the adoption did not take place owing to the default of either party imposing a time limit Was implicit in the terms of the agreement and their award was not in excess of the power given to them by the arbitration agreement
The award could not be treated as having perverted the line of succession by merely stating that if the adoption did not take place the respondent would receive I share of the testator s property and it would form her stridhan