Case: British India Electric Construction Company Limited Vs. Workmen

of the second reservation." According to the Appellate tribunal, the claim to dearness allowance on the "chamber scale" was an " existing advantage " which was being enjoyed by the employees and which was not to be adversely affected by the first award. The reason for this conclusion of the Appellate Tribunal may best be stated in its own words as follows: "The claim for dearness allowance, however, stands on a different footing. Dearness allowance, according to the scales of the Bengal Chamber of Commerce, was at that time an existing advantage. The fact that many engineering firms which were parties to the reference were paying at these scales was noticed by the tribunal and the tribunal did not expressly make any other provision in its award respecting that advantage. We. therefore, hold that this claim comes within the saving."( 13 ) The question is whether this interpretation by the Appellate tribunal, of what it calls the second reservation, is correct. It has to be recalled that the first award, in terms, did not make the "chamber scale" applicable to the workmen as had been claimed by them. The award prescribed a much lower scale of dearness allowance, but, at the same time, it did not intend to deprive the workmen of the benefit of a more generous treatment which was being accorded by some of the engineering firms including the appellant. After having prescribed a graduated scale of dearness allowance with reference to the pay range, as set out above, and after having definitely negatived the claim of the work- men to dearness allowance on the " chamber scale," the award proceeded to make certain reservations. The first reservation, as rightly pointed out by the Appellate Tribunal, was concerned with conserving the total emoluments actually enjoyed by the employees. In the last paragraph, the reservation to the effect that " this award will not affect adversely any other kind of existing advantage which the employees of a firm may be enjoying "must, on a proper reading of the entire award, have reference to " existing advantage " of a kind other than those dealt with in the preceding paragraphs. One of the preceding paragraphs had specifically dealt with the question of dearness allowance. Hence, dearness allowance could not come within the purview of the reservation in respect of " other kind of existing advantage." This expression may have reference to emoluments other than basic salary and dearness allowance. Perhaps, it may have reference to other advantages like housing allowance, supply of free electricity, medical relief, etc. The whole history of the Industrial dispute relating to dearness allowance, as set out above and covered by the first two awards, is against the interpretation given to the reservation aforesaid by the tribunals below. Besides, if Cl. (3) refers to dearness allowance as suggested by the respondents, Cl. (1) would really be redundant since its provisions would, by necessary implication, be covered by Cl. (3) itself. As already stated, soon after the publication of the first award, the appellant notified that there would be no further increase in dearness allowance on the basis of the "chamber scale " in view of the fact that the dearness allowance actually paid to the workmen was considerably in excess of what had been prescribed by the first award. That notice was given effect to and dearness allowance was paid to the workmen accordingly, which they received without any protest. When there was a second reference to the Engineering tribunal, resulting in the second award as aforesaid, no such controversy was raised by the workmen who must have known all the time that the "chamber scale" of dearness allowance was not being enjoyed by them. Thus, the workmen themselves under- stood the first award in the same sense in which the appellant understood it and gave effect to it. It is not correct to interpret the reservation in the last paragraph as having any reference to dearness allowance. The alternative argument, urged by the learned counsel for the respondents before us, was that Cl. (1) of the reservations as quoted above, itself protected the respondents right to have dearness allowance linked up with the " chamber " index of the cost of living. But this argument, In our opinion, is not well-founded on a reasonable 539 construction of the first paragraph aforesaid. It cannot be said that it has any reference to the "chamber scale " of dearness allowance. Clearly, this reservation has been made with a view to ensuring that the total remuneration payable to a workman after giving effect to the dearness allowance fixed by the first award, should not be less than the total emoluments already being paid to him. In other words, the first paragraph is meant so to adjust the proportion between the minimum basic pay and the enhanced dearness allowance fixed by the award as not to prejudicially affect the total emoluments already being enjoyed by the workmen of a particular concern. This reservation had to be made in view of the fact that a large number of firms were concerned with the first award and the tribunal was anxious to ensure that every workman enjoyed the benefit of the enhanced clearness allowance ; and that those workmen who enjoyed the benefit of higher emoluments, were not adversely affected by the new scale of dearness allowance. The adjustment contemplated by the first clause of the reservations, was also necessary as is clearly mentioned therein, for the purpose of calculating contributions to provident fund and gratuity. This reservation does not make even an indirect reference to the " chamber scale " of dearness allowance. The alternative argument, thus, has no force. It must, therefore be held that the tribunals below were in error in basing their award on the question of dearness allowance and directing the appellant to pay it on tile "chamber scale " either from the date of the first award or from the date of the third reference.

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

Explanation:
1[ds]But this argument, In our opinion, is not well-founded on a reasonable 539 construction of the first paragraph aforesaid. It cannot be said that it has any reference to the "chamber scale " of dearness allowance. Clearly, this reservation has been made with a view to ensuring that the total remuneration payable to a workman after giving effect to the dearness allowance fixed by the first award, should not be less than the total emoluments already being paid to him. In other words, the first paragraph is meant so to adjust the proportion between the minimum basic pay and the enhanced dearness allowance fixed by the award as not to prejudicially affect the total emoluments already being enjoyed by the workmen of a particular concern. This reservation had to be made in view of the fact that a large number of firms were concerned with the first award and the tribunal was anxious to ensure that every workman enjoyed the benefit of the enhanced clearness allowance ; and that those workmen who enjoyed the benefit of higher emoluments, were not adversely affected by the new scale of dearness allowance. The adjustment contemplated by the first clause of the reservations, was also necessary as is clearly mentioned therein, for the purpose of calculating contributions to provident fund and gratuity. This reservation does not make even an indirect reference to the " chamber scale " of dearness allowance. The alternative argument, thus, has nohas to be recalled that the first award, in terms, did not make the "chamber scale" applicable to the workmen as had been claimed by them. The award prescribed a much lower scale of dearness allowance, but, at the same time, it did not intend to deprive the workmen of the benefit of a more generous treatment which was being accorded by some of the engineering firms including the appellant. After having prescribed a graduated scale of dearness allowance with reference to the pay range, as set out above, and after having definitely negatived the claim of the work- men to dearness allowance on the " chamber scale," the award proceeded to make certain reservations. The first reservation, as rightly pointed out by the Appellate Tribunal, was concerned with conserving the total emoluments actually enjoyed by the employees. In the last paragraph, the reservation to the effect that " this award will not affect adversely any other kind of existing advantage which the employees of a firm may be enjoying "must, on a proper reading of the entire award, have reference to " existing advantage " of a kind other than those dealt with in the preceding paragraphs. One of the preceding paragraphs had specifically dealt with the question of dearness allowance. Hence, dearness allowance could not come within the purview of the reservation in respect of " other kind of existing advantage." This expression may have reference to emoluments other than basic salary and dearness allowance. Perhaps, it may have reference to other advantages like housing allowance, supply of free electricity, medical relief, etc. The whole history of the Industrial dispute relating to dearness allowance, as set out above and covered by the first two awards, is against the interpretation given to the reservation aforesaid by the tribunals below. Besides, if Cl. (3) refers to dearness allowance as suggested by the respondents, Cl. (1) would really be redundant since its provisions would, by necessary implication, be covered by Cl. (3) itself. As already stated, soon after the publication of the first award, the appellant notified that there would be no further increase in dearness allowance on the basis of the "chamber scale " in view of the fact that the dearness allowance actually paid to the workmen was considerably in excess of what had been prescribed by the first award. That notice was given effect to and dearness allowance was paid to the workmen accordingly, which they received without any protest. When there was a second reference to the Engineering tribunal, resulting in the second award as aforesaid, no such controversy was raised by the workmen who must have known all the time that the "chamber scale" of dearness allowance was not being enjoyed by them. Thus, the workmen themselves under- stood the first award in the same sense in which the appellant understood it and gave effect to it. It is not correct to interpret the reservation in the last paragraph as having any reference to dearness