Case: The Workmen Of Western India Match Co. Ltd Vs. The Western India Match Co. Ltd.,

addition 3% for every 5 pts rise or fall of working class index figure ** Adjusting the existing R. B. with this slab24. It will be clear from this that union had made alternative demands in respect of dearness allowance, one was that the same scale as that for sales office employees should be adopted and the other was variation in three slabs of the present scheme accepting as the basis the working class cost of living index figure. The company refused to make any counter-offer with regard to the primary demand of the appellant-union. But in regard to the alternative demand it made a counter-offer. If we understand Mr. Wasmouth right the respondent-company stood by its counter-offer based on the working class cost of living index figures before the Tribunal even though the conciliation proceedings broke down. During these proceedings this counter-offer was linked with the counter-offer pertaining to grades and scales of pay. Presumably, therefore, the company regarded the package deal not merely as a concession made for putting an end to disputes but also because it regarded it as fair and the financial commitment entailed by it to be within its means. No doubt in the evidence Mr. Wasmouth has said that the respondent-company does not stick to its offer relating to grades and scales of pay. But that would not render what was a fair and reasonable offer during the stage of negotiations, no longer fair and reasonable or necessary. The Tribunal has revised the pay scales on the basis of the respondents offer. If, therefore, dearness allowance is revised on the basis of the respondents offer what would in effect be done would be only that which the respondent-company during the conciliation proceedings had itself offered to do, a thing which was considered to be fair and reasonable and also necessary. In these circumstances we find it difficult to understand the principle on which the Tribunal proceeded in refusing to revise the scales of dearness allowance on the basis of the respondent-companys offer.25. Though, therefore, we reject the contention of the appellant-union that the dearness allowance should be fixed on the same basis as that obtaining in the sales office we think that in view of the stand taken by the respondent-company throughout the proceedings dearness allowance should be revised in accordance with the companys offer. The fact that it made such an offer is indicative of two things: the necessity and propriety of revision of the dearness allowance as well as the ability of the respondent-company to pay higher dearness allowance. It was no doubt contended before us that the offer was made during negotiations and was without prejudice and we should, therefore, keep it out of our mind. But we cannot overlook the fact that Mr. Wasmouth stuck to that offer even after the conciliation proceedings had ended infructuously and thus in effect revived the original offer.26. Mr. Sen, however, argued that on the basis of the decision in Burn and Co. Ltd. v. Their Employees, 1956 SCR 781 : ((S) AIR 1957 SC 38 ) that an award of Industrial Tribunal cannot be re-opened unless it is established that there has been a change in the circumstances on which the award is based and that since there has been no such change the award of 1955 pertaining to dearness allowance ought not to be revised. It is true that an award cannot ordinarily be revised unless there is a change of circumstances. But here, there has been a change of circumstances because cost of living has admittedly gone up since then. This is so notorious a fact that we are entitled to take notice of it. The object of awarding dearness allowance is to neutralise, at least partially, the rise in the cost of living and in the circumstances the factory employees are entitled to say that the old basis needs to be revised. There is thus no substance in Mr. Sens argument.27. On the question of the grades and scales of pay the contention of learned counsel is that the Tribunal has not applied its mind to the question but has mechanically accepted the respondents offer. This statement is not wholly accurate. No doubt the Tribunal has accepted as reasonable the offer which the respondent has made; but it has given reasons for doing so. In its award the Tribunal has stated:"The principal point made in support of the demand is that the grades and scales of pay are too short and that they should be extended with such modifications as may appear necessary in the circumstances of the case."Then after comparing the existing grades with the companys offer the Tribunal observed:"It would appear at a glance at this chart that the existing rates provide for scales of pay in the case of six grades upto 16 years and in the case of one it provides for ten years only. The Unions demand is for extending the scales upto 20 years in place of ten and sixteen years, and both the minimum and maximum limit of the scales of pay would be raised in all cases. The Companys offer except in the case of grade B(1) is much in advance of the existing grades and scales of pay. There are good justifications for revision of the grades and scales of pay, and the Companys offer, in my opinion, should have been accepted by the Union. The revision of the grades and scales of pay as in the companys offer will, to a great extent remove the hardships of the employees, who for the present, must remain satisfied with such revision."It has, therefore, applied its mind to the companys offer and also borne in mind the demand made by the union. Upon consideration of these matters the Tribunal came to the conclusion that the companys offer is a reasonable one. Its finding in this regard is one of fact and cannot be permitted to be challenged in an appeal under Art. 136.

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

Explanation:
1[ds]In our opinion, however, it is not open to the respondent-company to raise this contention in so far as revision of pay scales is concerned because in the memorandum of settlement dated May 23, 1958 signed by the representatives of the parties to this appeal it is clearly provided that the revision of scales of pay be referred for adjudication to the same Industrial Tribunal which was dealing with the question of dearnessrecital shows that the respondent was agreeable to refer to the Tribunal not only the issue relating to revision of pay scales but also that dealing with dearness allowance. Further, in para 37 of its written statement the respondent-company clearly accepted the position that the Tribunal had jurisdiction to deal with the issue of dearness allowance. This circumstance precluded the respondent from now objecting to the jurisdiction of the Tribunal. Apart from that we may point out that in its reply dated March 29, 1957 to the charter of demands sent on behalf of the appellant-union it was stated that the previous settlement had not been validly terminated and in answer to that the General Secretary of the Union wrote on April 8, 1957 saying that the various representations made by the union to the respondent and the presentation of the charter of demands amounts to a notice of termination of the settlement. Thus, though no formal notice under S. 19(2) was given this letter can itself be construed as notice within the meaning of that provision. It may be noted that the representation was made long after the expiry of two months from this date. For these reasons we overrule the contention of Mr.may, however, point out that the appellant-union claimed parity with the sales office employees only in the matter of dearness allowance and have referred to the existence of different pay scales in the sales office only in support of their claim for an upward revision of the present pay scales. It is, therefore, not open to learned counsel now to urge that the pay scales also should be the same for the factory employees as for the sales office employees. We shall, therefore, consider the argument based on the ground of unwarranted discrimination only in so far as it relates to the question of dearness allowance.It would, therefore, appear that members of a union like the one of employees of the respondents factory at Alambazar have been dealt with on a different footing from the employees of a sales office in Calcutta, the former being employees of an engineering concern and the latter of a mercantile one.As we have already pointed out the employees in the sales office are governed by the recommendations of the Bengal Chamber of Commerce which the respondent was more or less bound to accept to be in line with other similar establishments and, therefore, the case of the factory employees cannot be equated with that of the sales officesales office being a mercantile office the respondent had to fall in line with other similar establishments and pay to the employees in the sales office the same dearness allowance as other mercantile firms were paying to their employees. In the circumstances the factory employees cannot as of right demand that the benefit of the rates fixed by the Bengal Chamber of Commerce be also given to them though those rates were not intended to be applied to them.It is true that the employees in Alambazar as well as in Calcutta are living within the limits of the Corporation of Calcutta. But that circumstance though relevant is not by itself sufficient to justify payment to them of the same rate of dearness allowance as the sales office employees. We cannot ignore the fact that the employees of other factories situate in that area are not paid dearness allowance at the rates formulated by the Bengal Chamber of Commerce and, therefore, if those rates are adopted by the respondent with respect to the factory employees the existing industrial peace in that region may be destroyed. The tribunal must, therefore, be said to have exercised its discretion properly in not acceding to the appellants demand in thisis not disputed that certain benefits such as those relaing to rations, free quarters, gratuity etc., which are extended to the factory employees are not extended to the sales office employees. What is said, however, is that the sum total of these considered along with the pay and dearness allowance of the factory employees still place them at a disadvantage as compared to the sales office employees. It is true that the sales office employees are, by and large, in a comparatively better position; but that again is due to the fact that recruitment in the two establishments have all along been made on different terms and conditions.21. We do not think that there is any valid reason for compelling employers to offer uniform terms of employment to their employees working in different establishments because various considerations must enter into the question such as the value of their work to the employer, the employers ability to pay, the cost of living, the availability of persons for doing the particular kind of work and so on. Indeed, the Minimum Wages Act itself proceeds on the basis that the employer has large discretion in so far as the most important condition of service is concerned, that is, pay, so long as it is not below the minimum wage prescribed. It is a well-known fact that the biggest employer, the State, does not offer uniform conditions of service to all employees doing work which, broadly speaking, may be called similar.22. Looking at the matter thus we cannot say that the Industrial Tribunal in refusing to extend to the employees of the respondent in the factory in Alambazar the benefit of dearness allowance formulated by the Bengal Chamber of Commerce has contravened any principle of natural justice or any important principle of industrialIt will be clear from this that union had made alternative demands in respect of dearness allowance, one was that the same scale as that for sales office employees should be adopted and the other was variation in three slabs of the present scheme accepting as the basis the working class cost of living index figure. The company refused to make any counter-offer with regard to the primary demand of the appellant-union. But in regard to the alternative demand it made a counter-offer. If we understand Mr. Wasmouth right the respondent-company stood by its counter-offer based on the working class cost of living index figures before the Tribunal even though the conciliation proceedings broke down. During these proceedings this counter-offer was linked with the counter-offer pertaining to grades and scales of pay. Presumably, therefore, the company regarded the package deal not merely as a concession made for putting an end to disputes but also because it regarded it as fair and the financial commitment entailed by it to be within its means. No doubt in the evidence Mr. Wasmouth has said that the respondent-company does not stick to its offer relating to grades and scales of pay. But that would not render what was a fair and reasonable offer during the stage of negotiations, no longer fair and reasonable or necessary. The Tribunal has revised the pay scales on the basis of the respondents offer. If, therefore, dearness allowance is revised on the basis of the respondents offer what would in effect be done would be only that which the respondent-company during the conciliation proceedings had itself offered to do, a thing which was considered to be fair and reasonable and also necessary. In these circumstances we find it difficult to understand the principle on which the Tribunal proceeded in refusing to revise the scales of dearness allowance on the basis of the respondent-companys offer.25. Though, therefore, we reject the contention of the appellant-union that the dearness allowance should be fixed on the same basis as that obtaining in the sales office we think that in view of the stand taken by the respondent-company throughout the proceedings dearness allowance should be revised in accordance with the companys offer. The fact that it made such an offer is indicative of two things: the necessity and propriety of revision of the dearness allowance as well as the ability of the respondent-company to pay higher dearness allowance. It was no doubt contended before us that the offer was made during negotiations and was without prejudice and we should, therefore, keep it out of our mind. But we cannot overlook the fact that Mr. Wasmouth stuck to that offer even after the conciliation proceedings had ended infructuously and thus in effect revived the originalis true that an award cannot ordinarily be revised unless there is a change of circumstances. But here, there has been a change of circumstances because cost of living has admittedly gone up since then. This is so notorious a fact that we are entitled to take notice of it. The object of awarding dearness allowance is to neutralise, at least partially, the rise in the cost of living and in the circumstances the factory employees are entitled to say that the old basis needs to be revised. There is thus no substance in Mr. Sensstatement is not wholly accurate. No doubt the Tribunal has accepted as reasonable the offer which the respondent has made; but it has given reasons for doing so.has, therefore, applied its mind to the companys offer and also borne in mind the demand made by the union. Upon consideration of these matters the Tribunal came to the conclusion that the companys offer is a reasonable one. Its finding in this regard is one of fact and cannot be permitted to be challenged in an appeal under Art. 136.