Case: Karnani Properties Ltd Vs. State Of West Bengal And Ors

is not from mere letting out the properties to the tenants and that the tenants pay not only for mere occupation of the property but also for enjoyment of the various services which are rendered by the appellant to the tenants and to which services the tenants are entitled as a matter of right for the occupation of the premises (iv) The services which are rendered to the tenants and about which there does not appear to be any dispute are (a) elaborate arrangements for supply of water; (b) free supply of electricity; (c) washing and cleaning of floors and lavatories; (d) lift services; (e) electric repairs and replacing; and (f) sanitary repairs and replacing etc (v) For offering those services to the tenants, the appellant has employed a number of workmen and these services which undoubtedly confer material benefits on the tenants and constitute material services, are rendered by the employees (vi) The employees of the appellant company are engaged in their respective calling or employment to do their work in rendering the services (vii) Activity carried on by the appellant company is undoubtedly not casual and is distinctly systematic (viii) The work for which labour of workmen is required is clearly productive of the services to which the tenants are entitled and which also form a part of the consideration for the payments made by the tenants (ix) The appellant carries on its business with a view to profits and it makes profits and declares dividends out of the profits earned." 9. From the aforesaid findings recorded by the High Court, with which we find no reason to disagree, it is evident that the activity carried on by the appellant falls within the ambit of the expression "industry" defined in Section 2(j) of the Act as construed by this Court in Bangalore Water Supply and Sewerage Board case ( 1978 (2) SCC 213 : 1978 SCC(L&S) 215: 1978 (3) SCR 207 The award of the Industrial Tribunal cannot, therefore, be assailed on the basis that the appellant is not carrying on an industry under the Act.10. Shri. Nath has next contended that the Industrial Tribunal was not competent to make the award as the earlier award dated March 3, 1960, had not been validly terminated. He has urged that the earlier award was in the nature of a settlement under Section 2(p) of the Act and it could be terminated only in accordance with Section 19(2) of the Act. Shri. Nath has pointed out that for terminating a settlement under Section 19(2) a written notice is necessary whereas for termination of an award under Section 19(6) of the Act a written notice is not required and a notice is sufficient. 11. In our opinion this contention does not require consideration in view of the finding recorded by the learned Judges of Division Bench of the High Court that the letter dated November 24, 1966 was a notice under Section 19(6) as well as under Section 19(2) of the Act. It has been found that the said letter of the union which was addressed to the Labour Commissioner was sent to the appellant company and that in the said letter there is a clear intimation of the intention of the employees to terminate the award and from the letter of the appellant dated February 13, 1967 it appears that the appellant had become aware of the intention of the union to terminate the award and that the order of reference was made on July 29, 1967, long after the expiry of the period of two months. It is not the requirement of Section 19(2) of the Act that there should be a formal notice terminating a settlement and notice can be inferred from the correspondence between the parties (See : Indian Link Chain Manufacturers Ltd. v. Their Workmen ( 1971 (2) SCC 759 : 1972 (1) SCR 790 )). In the aforesaid facts and circumstances the High Court was justified in holding that the award dated March 3, 1960 had been validly terminated before the passing of the order of reference. 12. Shri. Nath has urged that there has been non-compliance of the provisions of Section 19(7) of the Act which lays down that no notice given under sub-section (2) or sub-section (6) shall have effect unless it is given by a party representing the majority of the persons bound by the settlement or award as the case may be. This question has been raised by the appellant for the first time in this Court. It involves an inquiry into questions of fact which cannot be made at this stage. The same, therefore, cannot be allowed to be agitated. 13. Shri. Nath has lastly urged that the Industrial Tribunal was in error in making the award in relation to dearness allowance without examining the capacity of the appellant to pay the additional amount and that the High Court should have remanded the matter to the Tribunal for considering this issue in the light of the documents which were submitted by the appellant before the High Court. We find no substance in this contention. The High Court has rightly held that in considering the finding arrived at by the Tribunal the High Court while exercising its jurisdiction under Article 226 of the Constitution should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribunal should not normally be allowed to be placed before the court. The appellant has not been able to show why the said documents were not produced before the Tribunal. It is not the case of the appellant that the Tribunal had precluded the appellant from producing these documents. In these circumstances we find no justification for accepting the plea of the learned counsel for the appellant for reconsideration of the award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. In our opinion this contention does not require consideration in view of the finding recorded by the learned Judges of Division Bench of the High Court that the letter dated November 24, 1966 was a notice under Section 19(6) as well as under Section 19(2) of the Act. It has been found that the said letter of the union which was addressed to the Labour Commissioner was sent to the appellant company and that in the said letter there is a clear intimation of the intention of the employees to terminate the award and from the letter of the appellant dated February 13, 1967 it appears that the appellant had become aware of the intention of the union to terminate the award and that the order of reference was made on July 29, 1967, long after the expiry of the period of two months. It is not the requirement of Section 19(2) of the Act that there should be a formal notice terminating a settlement and notice can be inferred from the correspondence between the parties (See : Indian Link Chain Manufacturers Ltd. v. Their Workmen ( 1971 (2) SCC 759 : 1972 (1) SCR 790 )). In the aforesaid facts and circumstances the High Court was justified in holding that the award dated March 3, 1960 had been validly terminated before the passing of the order ofe find no substance in this contention. The High Court has rightly held that in considering the finding arrived at by the Tribunal the High Court while exercising its jurisdiction under Article 226 of the Constitution should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribunal should not normally be allowed to be placed before the court. The appellant has not been able to show why the said documents were not produced before the Tribunal. It is not the case of the appellant that the Tribunal had precluded the appellant from producing these documents. In these circumstances we find no justification for accepting the plea of the learned counsel for the appellant for reconsideration of the award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court