Case: Kanji Jadhavji and Company, Bombay Vs. S Transport and Dock Workers' Union, Bombay

( 2 ) THIS petition was originally filed by one Velbai Kanji as the sole proprietress of the said kanji Jadhavji and Co. During the pendency of the petition, the said Velbai died and her legal representative, one Mathuradas Gokuldas, has been brought on the record. The said Kanji jadhavji and Co. (hereinafter referred to as the) has been carrying on business for the last over fifty years as stevedores, clearing, forwarding and travel agents and also as contractors of the Central Government and State Governments other public bodies. Transport and Dock Workers Union, respondent 1, which is a trade union registered under the trade Unions Act, 1926, is a union representing the workmen of theAmongst the departments of theis a department known asdepartment," the work of which consists of loading cement on board the ships at the Bombay3 ) IN 1958, certain disputes between theand its workmen were referred for adjudication under the Industrial Disputes Act to Sri A. Das Gupta as the Central Government industrial Tribunal at Calcutta, being Reference No. 3 of 1958. In the said reference, certain terms of settlement were arrived at between theand its workmen, and in terms of the said settlements an award was made by the said tribunal. The first demand in the said reference was :"the cement workers now employed through middlemen should be directly employed by the company and they should be paidat the rate of Rs. 5 for 100 bags. The workers should also be given benefits of minimum daily wage guarantee and idle allowance. "( 4 ) THE settlement with respect to the said demand as embodied in the said award was :"the existing system of employing present cement workers through mukadam shall continue. However, the company will require the mukadam to pay to the cement workers a rate of 45 np. per ton effective 1 November 1958. "( 5 ) ON 8 March 1963, respondent 1 union on behalf of the workmen of thegave notice intimating its intention to terminate the award. Thereupon the said award ceased to be binding on the parties on and from 8 May 1963. Thereafter, on 30 July 1963, respondent 1 union raised several demands on behalf of the workmen of theas also on behalf of the workmen of two other concerns engaged in similar activities, namely, Navalchand a. Mehata and Bros. and Krishna Commercial Company. The disputes between all the three concerns and their workmen were admitted to conciliation, and on the conciliation proceedings proving infructuous, the Central Government by an order dated 1 January 1964, in exercise of the powers conferred by Clause (d) of(1) of S. 10 of the Industrial Disputes Act, 1947, referred the said disputes for adjudication to the industrial tribunal, Bombay. The disputes so referred were stated in the schedule to the said order and were as follows :" (1) Whether the demands of the workmen employed in loading of cement by Kanji Jadhavji and co. Navalchand A. Mehta and Bros. of Bombay, for the(i) enhancement of wages to Rs. 6 per 100 bags or to Rs. 2 per ton. (ii) payment of attendance allowance of Rs. 1. 50 per shift to a workman who is called for work when no work is made available to him, (iii) payment of minimum wages of Rs. 4 when employed throughout the shift, and (iv) payment of bonus for the years. "( 6 ) AFTER pleadings on behalf of all the parties were filed and evidence led respondent 2 gave his award on 29 December 1964. The said award was published in the Government Gazette dated 6 january 1965. By the said award all the demands raised by the workmen of thewere rejected, except the demand for enhancement of wages, and respondent 2 awarded an enhancement of 5 paise per ton in the existing rate of 45 paise per 20 bags of cement, that is, per ton, with effect from 1 February 1964. It is to set aside this award that the present petition has been7 ) THE main defence taken by thein the written statement filed before the tribunal were that :(1) a joint reference was not permissible under the Industrial Disputes Act except in a case falling under S. 10 (5) of the said Act; (2) the workmen who wereern were employed through mukadams under the said award made in Reference No. 3 of 1958 and the same system of employing cement workers through mukadams still continued; and (3) there was no justification on the merits for granting any of the demands of the cement workers of8 ) THE tribunal very carefully and in detail considered the evidence, both oral and documentary, led on behalf of the workmen as also theand came to the conclusion that thewere the employees of thesince 1961; that prior to 1961, the said workers were being employed through mukadams; and that the said mukadams left in 1961. The tribunal disbelieved the oral evidence of the witness on behalf of theIt considered the oral evidence in great detail and has elaborately set out the reasons why the evidence of the witness on behalf of thecould not be accepted. It has referred to the documentary evidence, namely, themaintained by thethe receipts for salary taken by theand the compensation paid by it under the workmens Compensation Act to some of the workmen. The final conclusion to which the tribunal arrived at on this aspect of the case was :"i, therefore, reject the contention of the company that theseworkers were employees of the mukadams and there was no relationship of master and servant between the company and them. I also reject the companys story that these workers were not itsworkers or that they worked for others at the same time. I am of the opinion that they are clearly the workmen of Kanji Jadhavji and Co. in any case since after July 1963 and that the documentary and oral evidence establishes the tests laid down by the Supreme Court in the case of the dharangadhra Chemical Works referred to supra to establish the unions plea that they are workmen of the company. "

Reasoning:
This argument of Sri Sawant really amounts to saying that when S. 19 provides that an award is to continue to be binding after the expiry of the initial period of one year till the expiry of two months from the date of the notice of termination, what is meant is that not only the award continues to be in operation but it must be assumed for all purposes that the facts and circumstances, on the basis of which the award was given, also continue to exist irrespective of the true facts. Normally, even if a notice of termination of an award is given and fresh demands raised, on the principle of res judicata, the tribunal would not grant any of those demands unless there was a change of circumstances. Such change of circumstances may take place either before the termination of the award or after the termination of the award. In many cases a notice of termination is given because of change of circumstances and the workmen desire that, in view of the changed circumstances, increased benefits should be allowed to them. It is illogical to say that in spite of a notice of termination being given on account of change of circumstances, the court must nonetheless hold that the circumstances did not change earlier but changed only when the binding effect of the award came to an end. What the tribunal has really considered is that since 1961 there was a change of circumstances; that these circumstances led to the termination of the award given in the said Reference No. 3 of 1958; and that the demands made by the workmen so far as concerns enhancement of wages were justified. This contention of Sri sawant must, therefore,High Court, exercising it extraordinary jurisdiction under arts. 226 and 227 of there Constitution, is not acting as a Court of first appeal and is not required to reappreciate and reweigh the evidence before the trial Court. There is no error of law in the mode in which the tribunal appreciated the evidence led before it. It has given elaborate and cogent reasons for the conclusions reached by it and has not left any aspect of the evidencethe contrary, the scheme of the Act would show that where disputes which are common to several establishments engaged in similar activities are raised, a joint reference should be made, so that there may not be conflicting awards leading to industrial unrest. In the present case, admittedly theas also the said navalchand A. Mehta and Bros. and Krishna Commercial Company were engaged in similar activities. The demands raised against them were jointly raised by respondents 1 union and it was only desirable and proper that a joint reference should have been made, as in fact has been made. This contention of the petitioners, therefore, too mustinto consideration all these factors, the tribunal allowed an increase of 5 paise per ton, which was really an increase of only 11 per cent. In the wages of the workmen. The demand in the case of navalchand A. Mehta and Bros. was rejected in view of the agreement date 4 February 1963 between the union and the management, which agreement continued to be in force and was not terminated. The fact that under that agreement the wages were somewhat lower could not be so relevant, for, as the award shows, this concern was a small establishment making only small profits. In the case of Krishna Commercial Company, it was accepted by all parties that it was paying the highest rate to its workmen and the tribunal accordingly did not award any further increase. In our opinion, the tribunal, therefore, did not commit any error of law in rejecting this demand in the case of the workers of the other two concerns and granting it to the workers of the