Civil Appeals Nos159 and 160 of 1958
Appeals by special leave from the Award dated September 4 1958 of the Industrial Tribunal Bombay in Reference IT Nos 138 and 35 of 1958
N A Palkhivala section N Andley J B Dadachanji and Rameshwar Nath for the appellant
C L Dudhia and K L Hathi for respondents No 1 and 2 1959
October 16
The Judgment of the Court was delivered by WANCHOO J
These two appeals by special leave arise out of two references made by the Government of Bombay in connection with a dispute between the appellant company and two sets of its workmen namely clerical staff and staff other than clerical
The clerical staff had raised four questions which were referred to the Industrial Tribunal Bombay for adjudication
of these only two points survive in the present appeal namely retirement age and gratuity
The non clerical staff had raised two questions of which only one relating to gratuity arises before us
It appears that the appellant company is an all India concern but the major part of its business is concentrated in Calcutta
The number of non clerical staff outside Calcutta is very small as compared to the 53 non clerical staff in Calcutta while the clerical staff outside Calcutta is much less than the clerical staff in Culcutta
The company had a gratuity scheme in force which applied to both clerical and non clerical staff though there were differences in the scale of payment depending upon whether the basic salary drawn by workmen other than operatives was more than Rs 100 or less
In case of operatives there was a uniform scale equal to the scale for workmen other than operatives drawing less than Rs 100 per mensem
The clerical and non clerical staff in Bombay raised disputes and their main contention was that the scale fixed by the scheme in force was low and should be raised
As for the retirement age the clerical staff claimed that it should be raised from 55 years to 60
The case of the appellant company before the tribunal was that as the large majority of the staff both clerical and non clerical was in Calcutta and as the gratuity scheme and the retirement age were enforced by virtue of an agreement arrived at between the appellant company and its workmen both clerical and others in Calcutta who are a large majority of its total workmen they should not be changed at the instance of a small minority of workmen both clerical and others in Bombay
The tribunal did not accept this contention and raised the age of retirement from 55 years to 60
It also made changes in the gratuity scheme by which the scale was raised and made uniform both for clerical staff and others
Thereupon the appellant applied for and obtained special leave from this Court and that is how the matter has come up before us
Shri Palkhivala appearing for the appellant has raised only two points before us relating to the raising of the retirement age and the change in the scale of gratuity and we shall confine ourselves to these two points only
It is conceded by him that the Industrial Tribunal has jurisdiction to order the changes which it has ordered
But his contention is that though the jurisdiction may be there the tribunal should take into account the special position of an all India concern and should not make changes particularly at the 54 instance of a small minority of workmen as that would lead to industrial unrest elsewhere
He further contends that the scale of gratuity and the age of retirement are matters which are independent of local conditions and therefore should be uniform thought India in concerns which have an all India character
He points out that the conditions of service in the appellant company are uniform throughout India and were arrived at by agreement with the unions of workmen at Calcutta where the large majority of the workmen are employed and in these special circumstances the tribunal at Bombay should not have made any changes in the retiring age or in the gratuity scheme at the instance of the small minority of workmen in Bombay
There is no doubt that in the case of an all India concern it would be advisable to have uniform conditions of service throughout India and if uniform conditions prevail in any such concern they should not be lightly changed
At the same time it cannot be forgotten that industrial adjudication is based in this country at least on what is known as industry cumregion basis and cases may arise where it may be necessary in following this principle to make changes even where the conditions of service of an all India concern are uniform
Besides however desirable uniformity may be in the case of all India concerns the tribunal cannot abstain from seeing that fair conditions of service prevail in the industry with which it is concerned
If therefore any scheme which may be uniformity in force throughout India in the case of an all India concern appears to be unfair and not in accord with the prevailing conditions in such matters it would be the duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing conditions in such matters particularly in the region in which the tribunal is functioning irrespective of the fact that the demand is made by only a small minority of the workmen employed in one place out of the many where the all India concern carries on business
Before we come to consider the two questions raised before us we may as well point out that the 55 scale of gratuity and the retirement age were originally fixed by an agreement arrived at in 1956 between the appellant company and its workmen in Calcutta who form a large majority
That agreement was for a period of two years ending with December 31 1957
Thereafter it was replaced by another agreement also for two years beginning from 1st January 1958
In that agreement it was specifically provided that no further major issues would be raised excepting those relating to medical aid retirement age and retirement benefits
It is clear therefore that even the workmen in Calcutta had reserved the right to raise a dispute with respect to retirement age and gratuity if necessary
The reason for this is that the references out of which those appeals have arisen were pending before the tribunal in Bombay and the unions in Calcutta wished to await the decision of the Bombay tribunal before finally agreeing to continue the rules relating to retirement age and gratuity
The appellant company also agreed to make this reservation in the said agreement arrived at between it and the unions in Calcutta
Therefore strictly speaking it cannot be said in this case that there was a final agreement in force with respect to these two matters between the appellant and large majority of its workmen in September 1958 when the Bombay Tribunal gave its award
In any case the Bombay Tribunal was bound to go into the merits of the matter with respect to these two items namely retirement age and gratuity keeping in mind the all India character of the concern and the previous agreement of 1956 and this is what the tribunal has actually done
We shall first take the question of retirement age
The tribunal found that retirement age was fixed between 55 years and 60 in various concerns in Bombay
It was also of opinion that 55 years was too low an age to be fixed for retirement for the clerical staff and that the trend in all the awards had in recent times been to fix it at 60 years
It therefore ordered that so far as the clerical staff was concerned retirement age should be fixed at 60 years instead 56 of 55
We may in this connection refer to a recent decision of this Court in Guest Keen Williams Private Limited Calcutta vs P J Sterling and Others 1 where the age of superannuation of employees in service before the Standing Orders came into force in that concern was fixed at 60 years
In these circumstances if the tribunal thought that it would be fair to fix 60 years as the age of retirement for clerical staff in spite of the fact that in the agreement of 1956 the retirement age was fixed at 55 years it cannot be said that the tribunal s order was not in accord with the prevailing conditions in many concerns in that region
In these circumstances we are of opinion that no interference is called for in this matter
We now come to the question of gratuity
The gratuity scheme in force in the appellant company on the basis of the agreement of 1956 provided for threequarters of one month s average basic salary for each completed year of continuous service for staff other than operatives drawing up to Rs 100 per menses and thereafter half a month s average basic salary for each year
It also provided three weeks  average basic wages for each completed year of continuous service for operatives
Three years service was the minimum period for eligibility to gratuity under special circumstances like death physical and mental incapacity and 15 years service in all other cases
There was also a provision for deducting some amount in lieu of provident fund credited by the company in 1941 in respect of service prior to 1st July 1941
The tribunal was of the opinion that the scheme was not adequate and contained features which were not usual in other prosperous concerns it pointed out that the scale of gratuity for clerks was on a lower basis than for operatives and that this was against the general conditions of things prevailing in that region
It further pointed out that the clerical and the supervisory staff had a higher standard of living and had to meet heavier expenses of education of their children who get employment at a late age as compared to operatives
It was therefore of opinion that a uniform scale of gratuity should be fixed for all 1  57 including those getting wages above Rs 100 per menses
It also pointed out that the requirement of a minimum service of three years in case of death and physical and mental incapacity was another unusual feature of this scheme and held that it should be changed
It was further of opinion that the usual provision in such schemes was a scale of one month s basic salary for each completed year of continuous service in case of death physical and mental incapacity and after 15 years  continuous service and that some gratuity at a lower scale was provided usually even in case of termination of service before the completion of 15 years  service
It therefore provided for half a month s basic salary for each completed year of continuous service after 5 years but upto ten years and three fourths of basic monthly salary for each year of completed service after ten years but less than fifteen years continuous service and one month s basic salary for each year for the rest
Finally it took into account the fact that there was a supplementary gratuity scheme in force in the company with respect to the employees in the employ of the company from before September 1 1946 and with respect to them it provided that those employees should either opt for the scheme as framed by it or continue in the gratuity scheme of the company along with the supplementary gratuity scheme
It appears therefore from the gratuity scheme finally sanctioned by the tribunal that it removed those features from the scheme in force in the appellant company which were unusual and unfair and not in consonance with the prevailing conditions for such schemes in that region
In these circumstances we are of opinion that the tribunal was not bound merely because this is an all India concern to refrain from altering the gratuity scheme which in its opinion had certain unusual features and was not in accord with the prevailing conditions in that region
The appellant s contention therefore on this head also fails
The appeals are hereby dismissed with one set of costs


Summary:
Section 3 of the provided that no person shall possess wireless telegraphy apparatus without a licence and section 6 made such possession punishable
The Indian Wireless Telegraphy Amendment Act 1949 introduced section 61A in the 1933 Act which provided for a heavier sentence for possession of a wireless transmitter without a licence
The Repealing and Amending Act 1952 repealed the whole of the Amendment Act of 1949 but by section 4 provided that the repeal shall not affect any other enactment in which the repealed enactment had been applied incorporated or referred to
The appellant was convicted under section 61A for being in possession of a wireless transmitter on July 31 1953
He contended that section 61A had been repealed and his conviction and sentence thereunder could not be sustained
Held that section 61A was saved by section 6A of the  though section 4 of the Repealing and Amending Act 1952 did not save it
756 The object of the Repealing and Amending Act 1952 was to strike out unnecessary Acts and to excise dead matter from the statute book
Khuda Bux vs Manager Caledonian Press AIR 1954 Cal
484 referred to
Section 4 of the Repealing and Amending Act 1952 only saved other enactments in which the repealed enactment had been applied incorporated or referred to
It had no application to the case of a later amending Act inserting a new provision in an earlier Act as it could not be said that the earlier Act applied incorporated or referred to the Amending Act
Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Ltd LR 58 IA 259 followed
Mohinder Singh vs Mst
Harbhajan Kaur ILR 1955 Punj
625 and Darbara Singh vs Shrimati Karnail Kaur 61 PLR 762 disapproved
Section 6A of the provided that when any Central Act repealed any enactment by which the text of any Central Act was amended then unless a different intention appeared the repeal would not affect such amendment
The word  text  in section 6A was comprehensive enough to include the subject as well as the terminology used in a statute and the insertion of section 61A in the 1933 Act was an amendment in the text
No different intention appeared either from the repealing Act or from the history of the legislation and section 6A applied to the repeal of the Amendment Act 1949