ppeals Nos 125 and 164 of 1958
Appeals by special leave from the Award dated August 26 1957 of the Fifth Industrial Tribunal at West Bengal in Case No VIII 26456
section C Issacs and section N Mukherjee for the Appellants in C A No 12558 and Respondents in C A No 16458
N C Chatterjee and Dipak Datta Choudhri for the
Respondents in C A No 12558 and Appellants in C A No 16458
January 28
The Judgment of the Court was delivered by SUBBA RAO J
These appeals are by Special Leave from the Award by Shri G Palit Judge Fifth Industrial Tribunal West Bengal in the matter of a dispute between Messrs Bengal Chemical  Pharmaceutical Works Limited Calcutta and their employees represented by Bengal Chemical Mazdoor Union Calcutta
The Government of West Bengal by its order dated September 13 1956 referred the following dispute between the parties referred to above to the Second Industrial Tribunal under section 10 of the Act 14 of 1947 hereinafter referred to as the Act
 Is the demand of the employees for increase in Dearness Allowance justified  If so at what rate
The said Act was amended by the 139 Industrial Disputes Amendment  Miscellaneous Provisions Act 1956 36 of 1956 which came into force on August 28 1956
On April 9 1956 the  Government made ail order transferring the said dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal
The Fifth Industrial Tribunal after making the necessary inquiry made the award on August 261957 and it was duly notified in the Calcutta Gazette on September 26 1957
As a mistake had crept in the award was modified by the Tribunal by its order dated the 29th November 1957 and the modified award was published in the Calcutta Gazette on the 29th November 1957
Under the award the Tribunal held that there was a rise in the cost of living index and that to neutralise the said rise the employees should get an increase of Rs 7 in dearness allowance on the pay scale up to Rs 50 and Rs 5 on the pay scale above Rs 50
On that basis the dearness allowance payable to the employees was worked out and awarded
The correctness of the award is questioned in these appeals
The Company preferred Civil Appeal No 125 of 1958 against the award in so far it was against it and the Union preferred Civil Appeal No 164 of 1958 in so far it went against the employees
For convenience of reference the parties will be referred to in the course of the judgment as the Company and the Union
Learned Counsel for the Company raised before us the following points 1 The order dated April 9 1957 made by the Government transferring the dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal was illegal 2 the previous award made by the Tribunal between the same parties on April 26 1951 and confirmed by the Labour Appellate Tribunal by its order dated August 30 1951 had not been terminated in accordance with the provisions of section 196 of the Act and therefore the present reference was bad in law and without jurisdiction 3 there was no change in the circumstances obtaining at the time the previous award was made and those prevailing at the time of the present reference as to justify making out a new award 4 the Tribunal 140 went wrong in taking the rise in the cost of living index between the years 1954 and 1957 instead of taking the fluctuating rate in the index between the date of the earlier award ie August 30 1951 and the date of the present reference in the year 1957  5 the Tribunal went wrong in so far as it based its decision on the Second Engineering Award of 1950 which was already considered by the Tribunal in its earlier award of the year 1951 and 6 in any event in computing the amount the Tribunal applied wrong criteria
We shall consider the above contentions seriatim
But before doing so it will be convenient to refer briefly to the scope of jurisdiction of this Court under article 136 of the Constitution vis a vis the awards of Tribunals
Article 136 of the Constitution does not confer a right of appeal to any party from the decision of any tribunal but it confers a discretionary power on the Supreme Court to grant special leave to appeal from the order of any tribunal in the
territory of India
It is implicit in the discretionary reserve power that it cannot be exhaustively defined
It cannot obviously be so construed as to confer a right to a party where he has none under the law
The is intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining conciliation and arbitration
Awards are given on circumstances peculiar to each dispute and the tribunals are to a large extent free from the restrictions of technical considerations imposed on courts
A free and liberal exercise of the power under article 136 may materially affect the fundamental basis of such decisions namely quick solution to such disputes to achieve industrial peace
Though article 136 is couched in widest terms it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation and final decision by this Court or discloses such other exceptional or special circumstances which merit the consideration of this Court
The points raised by the 141 learned Counsel except perhaps the first point  do not stand the test of any one of those principles
Learned Counsel for the Company however says that though the  said principles might be applied at the time of granting leave once leave is given no such restrictions could be imposed or applied at the time of the final disposal of the appeal
The limits to the exercise of the power under article 136 cannot be made to depend upon the appellant obtaining the special leave of this Court for two reasons viz i at that stage the Court may not be in full possession Of all material circumstances to make up its mind and ii the order is only an ex parte one made in the absence of the respondent
The same principle should therefore be applied in exercising the power of interference with the awards of tribunals irrespective of the fact that the question arises at the time of granting special leave or at the time the appeal is disposed of
It would be illogical to apply two different standards at two different stages of the same case
The same view was expressed by this Court in Pritam Singh vs The State of Madras 1 Hem Raj vs State of Ajmer1 and sadhu Singh vs State of Pepsu3 The first question turns upon the construction of the relevant provisions of the Act as amended by the Industrial Disputes Amendment and Miscellaneous Provisions Act 1956
The relevant provisions inserted by the Amending Act read as follows Section 2r  I Tribunal  means an Industrial Tribunal constituted under section 7A  7 A Tribunals 1 The appropriate Government may by notification in the official Gazette constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter whether specified in the Second Schedule or the Third Schedule
2 A Tribunal shall consist of one person only to be appointed by the appropriate Government
3 A person shall not be qualified for appointment as the presiding officer of a Tribunal unless 1  2 3 AIR 1954 SC 271
142 a he is or has been a Judge of a High Court or b he has held the office of the Chairman or any other member of the Labour Appellate Tribunal constituted under the Industial Disputes Appellate Tribunal Act 1950 48 of 1950 or of any Tribunal for a period of not less than two years
4 The appropriate Government may if it so thinks fit appoint two persons as assessors to advise the Tribunal in the proceeding before it 33B 1 The appropriate Government may by order in writing and for reasons to be stated therein withdraw any proceeding under this Act pending before a Labour Court Tribunal or National Tribunal  as the case may be for the disposal of the proceeding and the Labour Court Tribunal or National Tribunal to which the proceeding is so transferred may subject to special directions in the order of transfer proceed either de novo or from the stage at which it was so transferred  Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or National Tribunal the proceeding may also be transferred to a Labour Court
 Section 30 of the Amending Act reads  If immediately before the commencement of this Act there is pending any proceeding in relation to an industrial dispute before a Tribunal constituted under the 14 of 1947 as in force before such commencement the dispute may be adjudicated and the proceeding disposed of by the Tribunal after such commencement as if this Act has not been passed Section 7 before the Amendment ran thus  The appropriate Government may constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act
2 A Tribunal shall consist of such number of members as the appropriate Government thinks fit
Where the Tribunal consists of two or more members one of them shall be appointed as chairman
143 3 Every member of the Tribunal shall be an independent person a who is or has been a Judge of a High Court or a District Judge or b is qualified for appointment as a Judge of a High Court Provided that the appointment to a Tribunal of any person not qualified under part a shall be made in consultation with the High Court of the Province in which the Tribunal has or is intended to have its usual place of sitting
 It will be seen from the aforesaid provisions that the Amending Act which came into force on August 28 1956 changed the constitution of a tribunal to some extent and conferred a power for the first time on the Government to transfer a proceeding pending before a tribunal to another tribunal or in the case of a proceeding under section 33 or 33A pending before a tribunal to another tribunal or to a Labour Court
Section 30 of the Amending Act expressly saves a pending proceeding before a tribunal constituted under the Act before the Amending Act came into force and directs that such dispute shall be adjudicated and the proceeding disposed of by that tribunal after the commencement of the Amending Act as if that Act had not been passed
A combined and fair reading of the aforesaid provisions it is argued was that section 33B inserted in the Act by the Amending Act was prospective in operations ie it would apply only to proceedings initiated in the tribunal constituted Under the amended Act and that proceedings pending before the tribunals constituted under the Act before the commencement of the Amending Act would be disposed of as if the Amending Act had not been passed
The Parliament presumably to clarify the position brought out another Amending Act styled the Industrial Disputes Amendment Act 1957 18 of 1957 whereunder among other things a new definition of  Tribunal  was given in substitution of that in section 2r of the Act
The substituted definition reads  Tribunal  means an Industrial Tribunal constituted under section 7A and includes an Industrial 144 Tribunal constituted before the 10th day of March 1957 under this Act
 Sub section 2 of section I of the Amending Act 18 of 1957 says that section 2 shall be deemed to have come into force on the 10th day of March 1957
The result is that section 33B should be read along with the definition of a  Tribunal  inserted by the Amendment Act 18 of 1957 as if that definition was in the Act from March 10 1957
If that definition of a  Tribunal  be read in place of the word Tribunal in section 33B the relevant part of that section reads  1 The appropriate Government may by order in writing and for reasons to be stated therein withdraw any proceeding under this Act pending before a Tribunal constituted before the 10th day of March 1957 and transfer the same to another Tribunal constituted under section 7A of the Act So construed it follows that in respect of proceedings pending in a tribunal constituted before the 10th day of March 1957 the Government has the power to transfer them from that date to any other tribunal
It is said that this construction would make section 30 of the Amending Act 36 of 1956 otiose or nugatory
That section contained only a saving clause and it was not inserted in the Act it served its purpose and even if it ceased to have any operative force after the Amendment of 1957 that circumstance cannot have any bearing on the impact of the amendment of the definition of  Tribunal  on the provisions of section 33B of the Act
In the present case the Government made the order of transfer on April 9 1957 ie after section 2 of Amendment Act 18 of 1957 was deemed to have come into force
It must therefore be held that the Government acted well within its powers in transferring the dispute pending before the Second Industrial Tribunal to the Fifth Industrial Tribunal
The second contention namely that the Award of 1951 was not terminated in accordance with law does not appear to have been pressed before the Tribunal
The governing section is section 196 which says  Notwithstanding the expiry of the period of operation under sub section 3 the award shall 145 continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award 
 In the first written statement filed by the Company before the Tribunal no plea was taken based upon section 196 of the Act
In the second written statement filed by the Company on December 20 1956 a contention was raised to the effect that the award dated June 21 1951 was not terminated under section 196 of the Act that the said award was binding between the parties and therefore the reference was bad in law
Notwithstanding the said allegation the award dis closes that no issue was raised on that count and no argument was advanced in support thereof
This attitude might have been adopted by the Company either because it did not think fit to rely upon a technical point but had chosen to get a decision of the Tribunal on merits or it might be that there was no basis for the contention as the company might have received notice under the said section
Though it may not be quite relevant it may be mentioned that even in 1951 when the dispute between the parties was referred to the Industrial Tribunal though a similar contention was open to the Company and indeed was suggested by the Tribunal it moved the Tribunal to give an award on the merits of the matter
If this plea had been seriously pressed the Tribunal would have raised a separate issue and the Union would have been in a position to establish that notice had been served on the Company as required by section 196 of the Act
As the question raised depends upon elucidation of further facts we do not think that we would be justified in allowing the Company to raise the plea before us and we therefore do not permit them to do so
The fourth point turns on the construction of the terms of the agreement entered into between the parties on September 15 1954
The dispute between the parties had an earlier origin and apart from the 19 146 present reference there were as many as four references and four awards and the last of them was dated April 3 1951
The Company preferred an appeal against that award to the Labour Appellate Tribunal  Calcutta which with some modification confirmed the award of the Tribunal on August 30 1957
That award as modified by the Appellate Tribunal fixed the basic wages and the rate of dearness allowance payable to the employees
The employees were not satisfied with the award and they placed before the
Company a new charter of demands claiming higher rates of dearness allowance and wages but the dispute was compromised and the parties entered into an agreement dated September 15 1954 by virtue of which the Company introduced the incremental scale in the wage structure
As regards the dearness allowance it was stated in cl 1 1 of the agreement as follows The existing rate of D A will prevail unless there is a substantial change in the working class cost of living indexin which case the rate will be suitably adjusted On the construction of this clause depends the question of the Union s right to claim enhanced dearness allowance
It is common case that if the cost of living index in the year 1951 was taken as the basis there was a fall in the rate of working class cost of living index in 1957
On the other hand if the cost of living index in 1954 was the criterion there was a substantial increase in the cost of living index in 1957
The question therefore is what did the parties intend to agree by the aforesaid clause in the agreement
To ascertain the intention of the parties we should con sider the circumstances under which the said agreement was entered into between the parties
Exhibit 6 is the said agreement
The preamble to the agreement reads   The Company and the Union came to a settlement in respect of the Pay Scales and Grades in the Charter of Demands dated 25th June 1953 at the intervention of Shri A R Ghosh Asstt
Labour Commissioner during the Conciliation proceedings ending on the 30th August 1954
 147 The preamble indicates that the entire situation obtaining on the date of the agreement was reviewed and the parties agreed to the terms of the settlement mentioned therein
Under clause 1 of the agreement pay scale and grade as given in annexure B was agreed upon for the time being for a period of three years as an experimental measure to be reviewed modified or suspended or withdrawn after three years depending upon the Company s business and financial condition
By el
2 the employees agreed not to raise any dispute involving any further financial burden on the Company during the next three years in respect of pay scale and grade
Clauses 3 to 5 deal with increments and the age of retirement
Clause 6 provides for the piece rated contract workers in respect of their increments
Clause 7 is in respect of increment for the daily rated workers
Clause 8 is in respect of the grade and scale of pay and increments of Chemists Engineers and Doctors etc
Clause 9 is to the effect that the employees who would be made permanent thence forward would be grouped under two divisions for the purposes of giving effect to the scale of pay
Clause 11 which we have already extracted above relates to the dearness allowance
Clause 12 says  barring the question of bonus for 1358 and 1359 B Sthe Union withdraws its claim in respect of other items in the Charter of Demands dated 25th June 1953
 We have given the agreement in extenso only for the purpose of showing that all the disputes between the parties arising out of the charter of demands dated June 25 1953 were settled between them and reduced to writing
The agreement was self contained and started a new chapter regulating the relationship of the parties to the dispute in respect of matters covered by it
The award must be deemed to have been superseded by the new agreement
In this context the crucial words  existing rate of D A  on which both the learned Counsel relied could have only one meaning
Do the words  existing rate  refer to the date of the agreement or to the date of the award  It is true that the existing rate of D A had its origin in the award and was made to prevail 148 under the agreement that is to say that the rate was accepted by the parties as reasonable on the date of the agreement till there was a substantial change in the working class cost of living index
If the contention of the learned Counsel for the Company should prevail the agreement would not be self contained but only to be construed as modifying the earlier award to some extent
We are satisfied that in regard to matters covered by it the agreement replaced the earlier award and therefore the date of the agreement is the crucial one for ascertaining whether there was substantial change in the working class cost of living index in the year 1957
We therefore reject this contention
Contentions 3 5 and 6 raise pure questions of fact
The Tribunal on the consideration of the entire material placed before it came to the conclusion that there was change of circumstances which entitled the employees to claim an increase in their dearness allowance
It has also fixed the rate of increase in the dearness allowance on the basis of the rise in the cost of living index
In doing so it also took into consideration the difficulties facing the industry and the repercussion of the rise in the dearness allowance on the consumers in general
Having regard to the overall picture it came to the conclusion that full neutralisation of the deficiency as a result of rise in the cost of living index by dearness allowance could not be permitted and therefore allowed them only 75 per cent
of the increase in the dearness allowance to which they would have otherwise been entitled on the basis of the rise in the cost of living index
The finding given by the Tribunal is one on fact and we do not see any permissible ground for interference with it in this appeal by special leave
Before closing one point strenuously pressed upon us by the learned Counsel for the Company which is really another attempt to attack the finding of fact given by the Tribunal from different angle must be mentioned it was that the Tribunal wrongly relied upon Exhibit 3 corrected on the basis of the information given by the State Statistical Bureau West Bengal for ascertaining the working class cost of living index since August 1954 up to March 1957
On the 149 basis of Exhibit 3 the Tribunal held that the working class cost of living index stood at 3441 in August 1954 and it rose to 4006 in May 1957 with the result that there was a rise of 56 points a substantial rise in the cost of living index
Exhibit 3 certainly supports the finding of the Tribunal
The learned Counsel for the Company points out with reference to the relevant entries in the Monthly Statistical Digest West Bengal that the said figures relate only to working class menials and the corresponding entries in regard to the working class cost of living index do not indicate so much increase as in the case of the menial class
Learned Counsel has also taken us through the relevant figures
The relevant entries in the Monthly Statistical Digest were not filed before the Tribunal
Indeed when the Union s witness Shri Satyaranjan Sen was examined before the Tribunal he was not cross examined with a view to elicit information that Exhibit 3 did not relate to the working class cost of living index
When Shri Chatterjee the Assistant Manager of the Company who was examined after Shri Sen gave evidence he not only did not object to the entries in Exhibit 3 but stated that he was not aware of any substantial increase in the working class cost of living index and complained that similar entries for all the relevant years had not been produced
Even before the Tribunal it does not appear that any argument was advanced contesting the relevancy of Exhibit 3 on the ground that it did not refer to the working class cost of living index
In the circumstances we do not think that we are justified to allow the learned Counsel for the Company to make out a new case for the first time before us upsetting the Tribunal s basis for calculation and involving further and different calculations
In the result we confirm the award of the Tribunal and dismiss the appeal with costs
The learned Counsel appearing for the Union did not press the appeal No 164 of 1958 filed by the Union and therefore it is also dismissed with costs
Appeals dismissed


Summary:
Two junior member of a Tarwad somewhat like a joint family redeemed a mortgage executed in 1870 by the Karnavan akin to Manager of the Tarwad
They paid the amount in 1886 got the property released obtained possession and they or their descendants continued in possession as such
In 1967 a suit for partition was filed by sucessors of other members of the Tarwad in whose favour equity of redemption of the suit land was transferred in a family partition in 1962
The suit was resisted amongst others on acquisition of right of tenant under section 4A1a of the Kerala Land Reforms Act 1964
The trial court and first appellate court held that the junior members as a result of getting the property released were holders of special right under Marumakkathayam Law and they could not be held to be mortgages and therefore they did not acquire any right under the Land Reform Act
The High Court however held that the junior member being assignee of mortgage in possession for fifty years on the date the Kerala Land Reform Act 1964 was amended and Section 41a was added by Amendment Act of 1969 were entitled to rights as tenants and thus accepted the claim of junior members because the members of the Tarwad treated the mortgage to be continuing on the date the suit was filed
It also held that a junior member of the Tarwad paying off the debt of Tarwad became a mortgagee of the excess share in his own right
Allowing the appeals of the sucessors of other members of Tarwad this Court HELD 1
A co mortgagor or a junior member of the Tarwad who continued in possession over the excess share got redeemed by him could not be deemed to be mortgagee so as to acquire right under Section 4A1a of the Kerala Land Reform Act 1964
This position does not alter either because during partition equity of redemption in respect of property redeemed by junior members was transferred or because in the plaint it was claimed that mortgages subsisted
None of these actions could affect the operation of law
425 D E 21 Mortgage is creation of an interest in the property for payment of debt
Once the mortgage debt is discharged by a person beneficially interested in equity of redemption the mortgage comes to an end by operation of law
Consequently the relationship of mortgagor and mortgagee cannot subsist
423 E F 22 In law the status of a person paying off debt to secure the property either with consent of others or on own volition is that the becomes the owner entitle to hold and possess the property
But in equity the right is to hold the property till he is reimbursed
In other words the may hold the property in surety or he may bring the claim for contribution
Similarly the co mortgagor whose share has been got redeemed is entitled in equity to get possession over his share of property on payment of the amount of his share
But these rights in equity either in favour of the person who discharge the debt or the person whose debt has been discharged do not result in resumption of relationship of mortgagor and mortgagee
423 F G 424 B 23 A plain reading of Section 92 of the does not warrant a construction that the substitutee become a mortgagee
The expression is right as the mortgagee  and not right of mortgagee
The legislative purpose was statutory recognition of the equitable right to hold the property till the co mortgagor was reimbursed
And not to create relationship of mortgagor and mortgagee
The section confers certain rights on co mortgagor and provides for the manner of its exercise as well
The rights are of redemption foreclosure and sale
And the manner of exercise is as mortgagee
The word as  means in the manner prescribed 
425 B C 24 A co mortgagor in possession of excess share redeemed by him can thus enforce his claim against non redeeming mortgagor by exercising rights or foreclosure or sale as is exercised by mortgagee under section 67 of the 
But that does not make him mortgagee
426 C D Raghavan Nair vs Anandavally Amma  approved
Kochuni vs State of Madras Kerala AIR 1960 SC 1080 Ganeshi Lal vs Joti Pershad  and Valliamma Champaka Pillay vs Sivathanu Pillay  Ors
   referred to