ATIC INDUSTRIES LTD. ETC. ETC. v.

WORKMEN ETC. ETC. (Wilh Connec'.ied appeals)

March 14, 1972

[C. A. VAIDIALINGAM AND I. D. DUA, JJ.]

Indus.'Tial Dispute-Transport Allowance Award of Tribunal making

mptoyers liable to pay 15 pa se per day to entployee who had to tr vel more than five mile!:.' to place of work-Awa. d jutified-Tribun1l when may take into account principles of social justice and region-cum-1

indust.~.

The appellant companies cai'ried on the busines of manufac\!uring chemk:al in a vil:agr3.

There were disputes bet\\-een the companLs and t.Uir workmen regarding dearness allowance, trans; iort al owance '3Dd other demands.

In regard to transpdrt allowance the Tribunal in its award directed the employers to pay 1$ pabJ per day to workmen who lived more th'3.n five miles away from the place of work exo~:::>t on days when a workman was on leave.

In doing so the Tribunal took into ac .. count the fact that in tl".e same region a pharmaceut'cal company was paying transport allow:.lnce to its workmen.

The Tribunal rej.ec.ted the contention of the companie that it was not t1e ob igafon of an em ployer le provide transport facili cies for the wc:irkmen or to pay in whole or in part their transport expemes.

In appeal by special leave,

HELD : ( i) The principle that in " proper case the Industrial Tribunal can imp<Y.c new obligation on the employer in the interest of social justiee a'ld can also involve the parties in a new co., tract has bee'l ac:. cepted by this Court. There can be no doubt that an Jndmtrial Tribti .r h:i jurisdiction to make a propelr and reasonable order in an indJJs ..

Jrial dispute. [779 F; 780 Bl

(ii) Tu,, Tribunal was justified in having regard to the ]Jracti¢ ob ta"1ing_ in the region on the principle of regon-cum industry when considering the claim of the workmen for payme'1t of tra"'sport allowaice.

Tb.e foundation of the princi., Je of regioncum-industry is that as far as possible the1•! should be uniformity of conditions of service in com-oarable concerns in the indu try in the region as that thefe is no :m'iaJance in the conditions of rr.rvice between workmn in one 1!stablishment and those in the rest.

The. danger otherwise would be migrafon of labour to 'he one wt.ere th"'re are more rvonrable conditions from those where conditions are less favourable. (780 B-C; 781 A-Bl

(iii) When tbe Tribunal w:is fixing the wage scales and d,.rne-s al lowanCe it was aware that it had also to arljudi ate on a claim for .transport allowance.

Havin~ reg?rd to this claim it m11st h'lve fixr>..d the W"g~ sc<1Jes anrt dearness allowance.

Jn the scale of deafness allowance fiX"d by the Tribunal complete neutralisation ha~ "Ot beeri. awarded. The Tribunal had also proceeded on the basis that the \VOrkmen must bear, from and out 'of the wages earned by them, a part of trans'"'IOrt exrr, nses.

It w•< only when the Tribunal found tht te ext>en<e ; ncurred bv the workmen for transport was rather high that it had afforded some lelief.

AT!C INDUSTll!ES v. WORKMEN (V'aidialingam, J.) 771

A No material had been placed before this Court on behalf of the com panies concerned to how that in the prepafat.on of the cos~ of l1v ng inOOx in the arf3. concjerned transport expense can be taken int a ... ,...... n .

l/ol D-F; 777 GI

(iv) In the circumstances of the case it could not be stated that I.le award of th.e sum of 15 paise per day was in any man.ier tor aion .. ble 8 or arbitrary. The paynt had ':l!so beon hedipd in by the conJiiion ~. that the employer had to be satisfied that the workman was s:ay'ing at a piace five mile and over from the p'ace of work and that it n.id not be paid on days when the workman was either on earned leave or any type of leav~ authorised or- Otherwise. The Tri -iunal had also 'aken into account the financial capacity of the appellants and there was no flow in its reasoning. [782 F; 783 Al

C Ahmedabad Mill Owners' Associa•ion e'c, v. The Tedfo Labour Association, [19661 I S.C.R. 382; The Patna Electric Supoiy Co. Lt1.

Paino v. The Patna. Electrlc Supply Worker< Union, [19B] Supp'. 2, S.C.R. 761; Mohamed and Sons v.

Their Workmen,

[1968] 1 LL.I. 536, Remington Rand of Jnd'a Ltd. v. Workm•n, [1969] ( IY I

F.L.R. 46 and The New Maneck Chowk Spinning/ and W•aving Co, Ltd.

Ahmedabad and others v. The Textile Labour Association Ahmedabad,

D f19611 3 S.C.R. I, applied. .

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 742 of. 1968.

Appeal by special leave from the Award dated November 15, 1967 of tl!e Indus; trial Trib, unal, Gujarat In Reference (l.T.) No.

E 65 of 1966.

AND CIVIL APPEAL No. 809 OF 1968.

Appeal by special leave from the Award dated October 16, '1967 of the Industrial Tribunal, Gujarat in Reference (l.T.) No. r 60 of 1966.

AND

CIVIL APPEAL No. 2086 OF 1968.

Appeal by special leave from the Awards Part I & II dated G September 27, 1967 aiid Novembei 1$, 1967 of the Inchistri-1

Tribllllal, Gujaat in Reference (I.T.) No. 65 of 1966.

A •. K. Sen, V. B. Patel, I. N. Shroff and M. N. Shroff, for the appcJJant, (in C.A. No .. 742 of 1968).

M. C. Setalvad, V. B Patel and I. N. Shroff, for the appellant (in C.A. No. 809 Of 1968).

Nat/ml G. Phillinis, Janardmi Sharma and Indira lai Sing~. fllr Ike appellants (in C.A. No. 2086 of 1968) respolldenls (in C . .A.

. No. 742 of 1968) and respondent No. 1 (in C.A. No. 809 of 1968).

M. C. Setalvad, V. B. Patel, I. N. Shroff and M. N. Shroff, for respo'.ldent No. 1 (in C, A. No. 2086 of 1968).

The Judgment of the Court was delivered by

Vaidialingam, J.-Civil Appeal Nos. 742 and 2086 of 1968, by spcial leav~, arise out of the decision regardmg demand No. 4 under Award Part II, dated November 15, 1967 of the Industrial Tribunal, Gujarat, in Reference (IT) 65 of 1966.

As Alic Industries Ltd., and its workmen could not settle the various demands made by the latter, on the joint application of both, the Deputy Commissioner of Labour, Ahmedabad, by order dated February 19, 1966 referred for adjudication to the Industrial Tribunal, Gujarat, nine demands made by the workmen.

The

demands cover various matters and have been elaborately set out

in the Schedule annexed to the order of reference. It is enough to note that the demands covered revision of wage scales, dearness rulowance, shift allowance, vacation travelilng allowance, housing facilities etc. Demand No. 4, with which we are concerned was as follows :

"All workmen who make use of the S.T. Bus Service shall be paid Rs. 20/- j)er month as Bus Allowance and those workmen who come Cycling from places where S. T. Bus Service is not available shall be oaid Rs. 15 /- per month as Cycle Allowance and also those workmen who come by train shall be paid Rs. 10 /- per month as Train Allowance."

The Industrial Tribunal by its Award, Part I, dated Seotember 27, 1967 disnosed of demands Nos. I, 2, 3, 6 and 9. By iis Award, Part H, dated November 15, 1967, the Tribunal disposed of ch-n°nd Nns. 4. 5. 7 ancl 8. Jn resnect of demand No. 4, the Tribunal directed the Company (A tic Industries Ltd.) to pay an allowance of 15 paise per day to every employee who siavs at a distonr.e of five miles or more from villae Atul.

The Tribunal directed this payment to be made with effect from fanuarv I,

1968. The Tribunal further directed that the allowance need not be paid for days on which the wor1<man is on earTJed leove or any tvne of foave authorised or otherwise.

Atic Industries Ltd. has fil•d Civil Apneal No. 742 of 191'i8 challenqing the grat\t of this allowance to its workmen.

The workmen have filed Civil A'>n•al No. 20% of 1968 chollenqinrr the various m"tters covered bv the Award Parts I and. JI, reqarding warre scales, dearne<s

allowance etr.. in <O far•• the Aw.rel was """inst them. In narticular, regarding demand No. 4 they have claimed, in the appeal,

ATJC INDUSTRIES v. WORKMEN (Vaidialingam, !.) 773

that a higher allowance should have been granted by the Tribunal.

But this Court, by its order dated September 24, 1.968 has restricted the Special Leave only to the question of transport ailowance.

Therefore, the various other points raised by the workmen in their ar:ieal no longer survive. While the Company in its appeal No. 742 of 1968 wants the allowance granted under demand No. 4 to be set aside, the workmen, on the other hand, in their appeal No. 20~ 5 of 1968 require the aHowance to be enhanced.

Civil Appeal No. 809 of 1968 i> by special leave; and the appellant therein is Atul Products Ltd., which also is an industry located h Atul village.

Here again, on the joint application of the said Company and its workmen, nine demands were referred for adjudication to the Industrial Tribunal, Gujarat, by order dated June 30, 1966 of the Deputy Commissioner of Labour,.

Ahmedabad.

The demands related to dearness allowance, shift allowance, housing facilities, vacation travelling allowance etc.

Demand No. 6 wW1 which we are concerned in this appeal was as follows :

"Company shall provide free transport facility to all workmen. Till such time free transport is made available every workmen shall be paid an allowance of Rs. 15/- per month."

The Industrial Tribunal, by its. Award Part I, disposed o! demand Nos. 1 to 4 and 7. By its Award Part II, dated October

16, 1967, the Tribunal disposed of demand Nos. 5, 6, 8 and 9.

The decision of the Tribunal under its Award Parts I and II in resoect of demand Nos. 1 to 5 and 7 to 9 is not the subject of consideration before us. In resoect of demand No. 6, the Trib1rnal rejected the demand rearding the Comnany b 0in~ made to nrovide free transport facilities.

However, the Tribunal directed the Com., anv to nay an allowance of 15 naise ner dav to everv employee who stays at a distance of five miles and above from village A•uL The said nayment was made effective from December 1,

1967. Here a2ain a llirection was 2iven that the Comna11v need not nay allowance to i's worl<:men who is either on earned leave or any tvne of leave authorised or o•herwi, e. The Co111,., anv de<ires in, thi, anneal to ]love the direction given by the Tribunal under this demand set aside.

From the facts stated above, it will be se 0 n that the common que, tio'l that ari, es fnr con'ierati<ln in all the'e three anne1ls rehtes to the claim of the workmen for navme"t of transoort allowanre t() enflhl~ them to ~O from thPif T'lll"e Of rec:ir1t1"P, to-thP: nlqcc Of WOT1<-, W~ Jl1RV fll~O t3tP that the fPferf"nrP,~ in both the l''lqf+CfS were made by the Deputy Commissioner of Labour, Ahmedahad,

as such a power had been delegated to him by the State Govern- A ment under s. 39 of the lndusmal Disputes Act, 1947 ..

Both Atic Industries Ltd. and Atul Products Ltd., are public limited compames.

They manufacture dyes and chemical and o.ther 1menhed, a, es. Both thJ compames were havmg tneir factories m village Atul.

The basis of the claim made by the workmen of bolh these Companies for payment of transport allowance B and the defence raised by the two concerns were substantially the same. ln support of its demand .the Union had stated that the majority of the workmen employd in the two Companies come from a distance of about five to ten miles .. As the factories are not situateJ in a place where labour force ii available easily, the majority of the workmen have to come from distant villages or c the town of Bulsar. The.re is no adequate transport reaching the site of the factories. The Stare Road Transport Corporation runs buses to reach the site of the factories, but the service is not regular or adequate. A workman has to incur a bus fare of 40 pai; e per trip from Bulsar to Atul and another 40 paise for the return journ:y. Therefore, each day a workman had to incur 80 paise as bus fare in going to village Atul from Bulsar and this was too much of an ex., ense which could not be borne by an employee from and out of his wages.

In the case of Atul Products, the demand was for a uniform allowance of Rs. 15/- per month, though in the case of Atic Industries Ltd., the demand was slightly different. The Union in this connection relied on the Award in the case of Cynamid India Ltd., which was a pharmaceutical industry in Atul region.

Both the Companies opposed the demands of the workmen on the ground that it is not the function or dutv of an employer to provide transport facilities for its workmen to come to their place of work. It was further pleaded that there is a good road from Bulsar to village Atul and the State Transport Service, which was running buses on the said route was easily available to all the workmen both for coming to vi!lage Atul and also for going bak home. In addition to t)le bus service, there was also a tram service which was available to the workmen. The Com1'anies further nleaded that most of the workmen employed in the two Com,, anies were Iivin11; in the nearby villaes and they ne.ver

doended upon ei•her the bus service or the train service. Even at the time when the workmen took ll" emnlovm 0 nt in the far.tories, thev should have known that thev will have to go •o their Plce of work at their own ex.,,, mes. On all the<; e grounds the claim of the workmen was resisted by both the Comnanies.

, It is seen that in re<'.)ect of Cynamid India: Ltd., .which was in the same region, though in the pharmaceutical mdustry, the

Tribunal had occasion to consider a claim made by its workmen for free transport facllites or for paymnt of fixed transport altowance at the rate of Rs. 15 /- per month. It is further seen that Cynamid lndla Ld., was already paymg 15 pahe per day for

evry wrokmen who was staying five miles and more from village Atul.

The workmen demanded that whole of the transp()rt expmses incurred by them, which was of 80 paise per day, must be paid.

This demand ws considered by the Tribunal in its Award published in State Gazette on September 3, 1966. In t)lis award, a copy of which has been placed before us, it is seen that the Tribunal has rejected the claim of the workmen for directing the Company concerned to provide free transport. But in respect of the further claim for increasing the transport allowance, the Tribunal has ultimately.increased the allowance from 15 pise to 3 7 paise per day to every employee who was staying at a distance of five miles and more from village Atul. The Tribunal has also granted an allowance of 12 paise per day to the workmen of Cynamid India Ltd., who were staying beyond three miles but less than five miles.

As we have mentioned earlier, the claim for transport allowance was made by the Unioµ mainly on the basis of the award of the Industrial Tribunal in the case of Cynamid India Ltd. Though the Tribunal did 11ot grant the enhanced allowance fixed by it in the case of Cynamid India Ltd. and also the further allowance granted therein to employees Staying beyond three miles but less than five miles, the Tribunal in the case of Atic Jndustries Ltd. and Alu! Products Ltd. has awarded only a sum of 15 paise per dav for those workmen who were staying five miles and more from village Atul.

In Civil Appeal No. 809 of 1968 Mr. M. C. Seta!vad, learned counsel for the appellant, apart from conte, ting the grant 0f transport allowance to the emnloyees on the ground that it is not the function of an employer to provide transnort facilities or to pay allowance for the same, has raised an objection to the jurisdiction of the Tribunal to give any such direction.

We have already referred to demand No. 6, which is the subject ef consideration in this apneal.

According to Mr. Se'alvad, the demand is to the effect that the Com,, any should provide free trans'10rt facilities to its workmen and till such facility is provided the wor1<men should be paid an allowance of. Rs. 15 /- per mon•h. The counsel further poin•ed out that in. this case the Tribunal has rejected the d0 mand of the workmen for provision for free transnort. Once this claim wa, reiected on the ground that •he emoloyee are no• entitled to be nrovided free tran<nori. no further question arose for consideration before the Tripunal.

According to Mr. Setalvad the claim for payment of an allowance of Rs. 15 /- per month is only for the interim period th3t will necessarily be ta\cen by the Com!:Jany to make arrangements for providing free transport, if the claim in that regard of the workmen had been accted. The latter part of the demand beipg only for an interim period, had to be straightaway rejected when ·once the main demand providing free transport made by the workmen was rejected. Therefore, it is the contention of Mr. Setalvad that the Tribunal's direction regarding payment of allowance under demand No. 6 is without jurisdiction.

The above contention of Mr. Setalvad has been controverted by Mr. Phadnis, learned counsel for the Union. According to the learned counsel, the demand is really in the alternative, namely, that the Company should be made to provide free transport facility. If this is not feasible, the Company should pay an allowance of Rs. 15/- per month.

The counsel has also drawn our attmtion to the reasons given by the Tribunal in the case of Cynamid India Ltd. for rejecting the claim for orovision of free transport.

The Tribunal has itself referred to those reasons in the present Award in resoect of both the Com-ianies. Therefore, even though the claim for provision for free transoort was rejected, the Tribunal had to deal with the alternative claim for payment of Rs. 15/- per month.

We are not inclined to accept the contention of Mr. Setalvad that the Tribunal had no jurisdiction to consider the quantum of trans'lort allowance to be oaid to the workmen when once it has rejected.the claim of •:he Union for provision of free transpcirt.

The cbim was a very t~U one, namely, that the Company should provide free transport facilities to all its workmen.

The latterpart of the demand should really be understood as an alternative claim if free transport is not provided by the Company. If the Company was wiiling to provide free transnort facilities, then there will be no question of any transport aliowance being paid to the workmen and the second par: of the deman:I may not arise for consideration. But it does not follow that when the claim for fre, transport facilities is rejected, the clim for transoort allowance no longer survives.

In our opinion, the proper way of looking at the demand is to treat the claim as one for provision of free

transort facility and in the alternative for payment of an allowance of Rs. 15/-per month. The claim for payment of allowance is not, as contended by Mr. Setalvad for an interim stae covering the period taken by the Company to make arrarigement' for providing transport facilities, when once it has been directed to the so by the Tribunal.

A The contention of Mr. Setalvad that the Tribunal had no jurisdiction to give direction for paying transport aliowance after rejecting the claim of the Union for the Company making provision for free transport, will have considerable force, if the Tribunal had rejected the claim for free transport on the ground that the employer is not under any circumstance liable to make any such B arrangement or bear transport expenses incurred by the workmen either in whole or in part. As we will show presently the ground on which the Tribunal rejected the claim of the Union that the employer should provide free transport was not on the ground that the employer is under no circumstance liable to provide the same, but because of the fact that a sound transport system existed c on the route and as such was conveniently available. to the workmen.

It will be pertinent to note the reasons given by the Tribunal in Cynamid India Ltd. for rejecting the claim of the workmen in that concern for making provision for free transport facilities. We are . referring to this aspect because the Tribunal in the case of Atul Products Ltd. has rejected the claim for free transport on the same ground as given by it in Cynamid India Ltd. The reason given by the Tribunal is that there whould be justification for a Company being made to provide free transport only if a sound public transport sytem did not exjst or was not conveniently available. The Tribunal has held that for going to village Atul from E Bulsar, public transport is available. It is on this ground that the Tribunal held that it will not be justified in conceding the demand for free transport. It may be mentioned that Cynamid India Ltd. was admittedly providing free transport for its supervisory staff and for that purpose it was maintaining a fleet of vehicles. But,

nevertheless, the Tribunal rejected the claim of . the workmen therein for provision being made for free transoort. It was represented by Mr. Phadnis, learned counsel for the union, that Atul Products Ltd. and Atic Industries Ltd. give a special conveyance allowanee to their sunervisory staff. But so far as this is concerned, the counsel also frankly admitted that no material in this regard

has been placed in the record of these appeals. Hence we leave that aspect out of consideration.

Now coming to the attack on behalf of the two Comoanies regarding the grant of transnort allowance, Mr. A. K. Sen and Mr. V. B. Patel, who followed him, urged, that the workmen when thev took uo em11loyment in the factories at village Atul knew full H well that they have to incur expenses for going to their place of

work. It wa, also noin•ed out that the derne's allowance had been revis•d by the Tribunal by its award Part I and that is sufficient to enable the workmen to meet the transport charges that

SUPREME COURT IU!PORTS [1972] l S.C.R.

they will have to incur for going to their place of work. In any

even~, it was urged, it is not the obligation of the employer to provide transport taciiites or to bear either in whole or in part the transport expenses of an employee incurred by him for going to his place of work.

On the other hand, Mr. Phadnis, learned counsel for the Union pointed out that ihe Tribunal has QOt accepted the entire clam; made by the Union, nor has it gran.~ transport allowance at the same rate given by it in the case of Cynamid India Ltd., The counsel pointed out that Atul Products Ltd. and Atic Industries Ltd. and Cynamid India Ltd. are all situated in village Atul.

Atic Industries Ltd. and Atul Products Ltd. are no doubt doing business in manufacturing dyes, whereas Cynamid India Ltd. is a pharmaceutical industry.

The employees working in the same region should have the same facilities and it is on this principle that the Tribunal has awarded transport a!lowane and that to a lesser degree than that prevailing in Cynamid India Ltd. The Tribunal itself has held that the workmen must share a part of the expenses and it is on that ground that though a workmen has to incur 80 paise per day, he has been granted only 15 paise per day.

Accordin~ to the learned counsel, the circumstances of the case also justify the said grant.

We are of the opinion that the grant of 15 paise per day as transport allowance to those employees staying live miles and beyond is justified in the circumstances of this case. The Tribunal itself has held that the Company must be satisfied that the workmen come from a place like Bulsar or places equally distant und no allowance need be paid on days when the workman is on earned leave or any type of leave authorised or otherwise.

On behalf of the Companies it was stated that in calculating the cost of living index, bus fare also is taken into account. No doubt in Ahmedabad Mill Owners' Association Etc. v. The Textile Labour Association,(1) it is stated that In the preparaiiail of the wst of livincr inucx, various items including lius fare ure taken into

accont. But it is to be noted that the observation in the said decision is that ucually the items mcnioned :hcr.::in inc!u<ling •he bus fore urc tal; c:i in•o a:couqt.

But Mr. Phac:!nis, roimeJ out by reference to the book "Cost of Living Incle' Numbe.r; in Ind'a'' a Mong; aph, published by the Lnbour Buronu, Mn!rsr; y of Lab-:iur, Gov::rnin-:nt of India that so far as /-\hn1cdab:.tJ is co; icerned, bus .far~ is r.ct ta!en into account in th•~ pre~"!ora.;.ion of cost of Jiving i:1d x. In contrast, he referr~<l us to the R<tnr:hi area w1'ere trave]ii'g cxc.•'lse is taken into a:cou1t in 'he p eparaion of cost of living index.

No material has been rbced

bfore us on behalf of the Companies concerned to show that in

(1) [1966] I S.C.R. 382.

Atl<: ~DUSTR!ES \I. WORKMEN (Vaidialingam, !.) 779

the preparation of the cost of living index m the area concerned trans,, on expense IS ta..cn mto account.

l'ne dec.s10ns m 1'he Patna Electric Supply Co., Ltd. Pama

v. 1'ne t'Wflu c..OClrtC ;:, upp1y workers' Umon\ 1) and Mohammea a/Id .JOflS v. l'netr Workmen(•) we.e rererreJ to us oy Mr. P •tel wn.:rern n has been he1d that proviu,115 or noushlg

accommodauon is qot tile dmy o! an e1npioyer amt u1at tne rcspons.oJ,.y ror the same is tnat of the uovernmem. ln our opm.on, a c.atlll wr providing housing accommodauon is totaJy

dilferent from a 1:1aim maoe ror tran.port allowance, 1n fact m

th~ presenc awaros, th~ Tnbunal has rejected the claim or the wor.:H\e,, 10r nousrng tacmues being providedby both the Companies. Similarly, the decision in l<em.ng1on Rand of India Lid.

v. workmen ( •) of this Court regarding lunch allowance does not also assist the Companies before us.

It was held in tM said decision that normally when the wage structure iS fair and dearness ailowance is paid to the workmen lm.:ed with the index of . cost of living, they must take care of the rise in the cost of living from time to time and therewre a company cannot be compelled to pay lunch allowance to all workmen.

In that decision, it wt!J be noted, that the lunch allowance was bing paid by the company _concerned .to workmen who had to go to distant places

and could not remm to the office during lunch oeriod. But the rate of allowance to such employees was raised by this Co<lft no douDt by consent of the Company.

But the extension of that allowance to other employees who had to work only in the factory or office premises was rejected. In this connection it was observed that the financial ability of an employer to ar the , dditfonal burden is not criterion. The principle that in a proper case the Industrial Tribunal can impose 1.ew obligation on the employer in the interest of social justice and can aiso. involve tht parties in a new contract has b;:en recognised by this Court in The Patna Electric Supply Co., Ltd. f'.atna v. The Pa; na Electric Supply. Workers' Union('), and The New Maneck Chowk Spinning and Weaving Co. Ltd. Ahmedabad and others v.

Te Textile Labour Associatio~. Ahmda?ad('). No doubt the said jurisdiction of the Tribunal is condi•ioned by l"e l.aws . and judicial pronouncements. In fois ccnec1ion the lullowm3 oo>ervation of Ludwig Teller in "Lab:im Disnutcs & L.:ollecuve Bargaining" (Volume I, page 536) is r.pposite :

"Industrial arbitration may involn the extension of an existin~ areement or the m~•'--in.~ o~ a new on'., or, in general, the creation of new ob1Ig1t1ons o'. md1lica•ion of old ones while commercial arb; trat10n

(i)[1959] Suool. 2 S.C.R. 761.

(') [1969] (19) F.L.R. 46.

(') [19681 TL.L.J. 536.

(') 119611 l S.C.R. I.

780 SUPRl!ME COURT REPORTS

(1972] 3 S.C.R.

generally concerns itself with interpretation of existing A obligations and disputes relating to existihg agreemenJ.s." . The ab~:>Ve observations have been quoted with approval by this Court m some of its earlier decisions. Therefore, there can be no doubt that an Industrial Tribunal has jurisdiction to make a proper nd easonable order in any, industrial dispute. It should be borne m mmd that the foundation of the principle of industrycum-region is that as far as possible there should be uniformity of conditions of service in comparable concerns in ihe industry in the region so that there is no imbalance in the conditions of a service between workmen in one establishment and those in the

rest.

The danger otherwise would be migration of labour to the c one where there are more favourable conditions from those where conditions are less favourable.

It is pertinent to note that though this Court in °1{emington Rand of India Ltd. v. Workmen(') declined to extend the benefit of lunch allowanee to employees who had no occasion to go for out door work, nevertheless it recognised in a limited measure the obligation of an employer to provide medical facilities for its workmen.

The demand for provision for medical facilities made by the workmen was contested by the Company therein on the ground that making provision for medical facilities is the responsibility of the Government and not of the employer.

Even on the basis that it is the obligation of the employer, it \\as further contended that medical expenses which a workman would ordinarily have to incur are looked after aµd taken into account when fair wages are settled. This Court accepted as correct the contention that the primary responsibility for providing medical facilities for citizens is that of the State. This Court also accepted the contention that while fixing fair wages, medical expenses which may have to. be ordinarily incurred by a workman will be taken into consideration. But on the basis that the expenses for medical facilities would have been taken into account in the fixation of wages only to a. ln_tlted extent artd as the tte can!lot discharge its full respons1b1hty in te mattei: of pro".1d1!1g.rn.ec1ic:U facilities, this Court held that a Tnbunal will have 1unsd1cuon m a proper case to .call un an emoloyr to shoulde~ a part of the.burden regardmg medical expenses mcurred by his v; orktnan in the in•erest of industrial harmony and good co-onerat1".e relations. We are emohasisin~.the said decision which reco.gmsed an emolover being maae to s)toulder a o.art of the burdn •.n respet of medical exoenses, as more or ls the same prmcmle will apply in the matter of an emoloyer bein~ asked to reimburse the workman at least to a limited exten~ regard!ng the transoort H expenses incurred by the latter for gomg to htS place of work.

(') [1969] (19) F.L.R. 46.

I••

We have already pointed out that in Atul village apart from the !WO C.ompani~. there is another ~Onern also.. Though Cynamtd India Ltd. 1s m the pharmaceutical mdustry, m our opinion the Tribunal was justified in having regard to the practice obtain'. ing in that region on the principle of region-cum-industry when considering the claim of the workmen for payment of transport 8 allowance. It is no doubt true that in the case of Cynamid India Ltd. that Company was already paying 15 paise per day to every one of its workmen as transport allowance and that amount has

been raised by the Tribunal to 37 paise per day.

It has also granted even to workmen living beyond three miles but less than five miles a sum of 12 paise per day. But the very fact that C Cynamid India Ltd. was paying even originally 15 paise per day was a relevant factor to be taken into account as the said industry was also in the same region and most of its employees were also coming from distant places like the workmen in the case of the two Companies before us.

It should also be remembered that the Tribunal, in the awards in question, was not considering an o isolated claim for payment of transport allowance. That demand was only one of the demands, which was being dealt with by the Tribunal along with various other demands such as revision of wage scales, dearness allowance etc. The Tribunal can certainly be expected to be aware of the fact, when it was fixing the wage scales and dearness allowance that it has also to adjudicate ori a E claim for transport allowance. Having due regard to this c'!aim, it must have fixed the wage scales and dearness allowance. We have gone through the scale of dearness allowance fixed under the two awards and it is to be seen that complete neutralisation has not been awarded. The Tribunal has also proceeded on the basis that the workmen must bear, from and out of the wages earned by them, a part of transport expenses. It is only when F the Tribunal found that the expense incurred by the workmen for transport was rather, very high and excessive that it has afforded some relief. If the entire body of workmen come from dist?nt places and they all have to incur heavy expenses for using tran~ port, the question may pertinently arise whether it is not a case for revision of wage scales or dearness allowance in such a man- G ner as to include also this item of expense. The Companies have provided some accommodation in the village itself for about 25 % of its workmen on a nominal rent. Some other are living near about the village itself and they have no necessity to spend any amount for transport. In resnect of these two categories of work111en, there cannot be a general rise in the wages paid to them. On the other hand, the case of workmen who come from H distant places, due to no fault of theirs, stands on di.fferent footing, It is not oossible for them to cover the entire distance walking and they have necessarily to use some transport for 4-L!06!Sup Cl/72

coming to their place of work.

Quite naturally, one can expect the workmen to choose only that type of transport which will cost them the minimum. Even if they choose the train service, which will be compartively cheaper, they will have to incur additional expense for coming to their place of work and return home.

, It must be noted that though the claim was for payment of 80 paise per day per worker to cover the entire cost of transport to and fro, the Tribunal has awarded only a moderate sum of 15 paise which was the amount that was being paid by .Cynanud India Ltd. originally.

In_ the case of Atul Products Ltd. as against the claim made for an allowance of Rs. 15 /- per month, for every workman, the Tribunal has allowed only 15 paise per day and that too op the days when the workman comes for duty.

Similarly, in the cace of Atic Industries Ltd. the demands were :

(a) Rs. 20/· per month to be paid to every workman using State Transport Bus Service; (b) Rs. 15/- per month to be paid to every workman coming by cycle from places where State Transport Bus Service was not available; and ( c) The workmen who come by train should be paid Rs. 10/- per month as train allowance. As against these varying demands, the Tribunal has only allowed 15 paise per day and that too on the days wijen the workman comes for work.

Thus it will be seen that even on the basis that a workman staying at a distance of five miles or more comes for work for 30 days in a month, the allowance he ge~ is only a sum of Rs. 4.50 p under the Award.

In the circumstances mentioned above, it cannot be stated that the award of the sum of 15 paise per day is in any manner unreasonable or arbitrary.

The payment has also been hedged in by the condition that the employer has to be satisfied that the workman is staying at a place five miles and over from Atul village and that it need not be paid on days when the workman is either on earned leave or any type of leave authorised or otherwise.

Therefore, We are satisfied that the direction given by the Tribunal under demand No. 4 in Civil Appeal No. 742 of 1968 and demand No. 6 in Civil Appeal No. 809 of 1968 is justified.

The Union in Civil Appeal No. 2086 of 1968 has asked for enhanced rate of transport allowance being given to the Cmployee in Atic Industries Ltd.

Its claim is that 80 paise has to be paid to every workman per day or in the alternative the allowance .must be, as directed by the Tribunal in Cynamid In<tia Ltd. All these aspects have been discussed by the Tribunal when it fixed the quantum in the case of Atic Industries Ltd. Though the Tribunal cannot impose any new obligation on an employer merely on the ground that the financial capacity of the employer is sound, nevertheless the Tribunal when imposing the new obligation has also

A to consider the capacity of the employer to bear the burden. In the case of Atic Industries Ltd. the Tribunal has held that it does not want to cast additional financial burden and that is why it has fixed the allowance at a very reduced scale. We see no error in this reasoning of the Tribunal and as such Civil Appeal No. 208 6 will have to be dismissed.

B In the result, the Awards of the Industrial Tribunal in respect of demand No. 4 in Civil Appeal No. 7 42 of 1968 and demand No. 6 in Civil Appeal No. 809 of 1968 are confirmed and both the appeals are dismissed.

Civil Appeal No. 2086 of 1968 is also dismissed.

Parties will bear their own costs in .all the C , appeals.

G.C.

Appeal dismissed:.