Case ID: 698

Judgment:
ppeals Nos. 125 and 164 of 1958. Appeals by special leave from the Award dated August 26	 1957	 of the Fifth Industrial Tribunal at West Bengal in Case No. VIII 264/56. section C. Issacs and section N. Mukherjee	 for the Appellants in C. A. No. 125/58 and Respondents in C. A. No. 164/58. N. C. Chatterjee and Dipak Datta Choudhri	 for the. Respondents in C. A. No. 125/58 and Appellants in C. A. No. 164/58. January 28. The Judgment of the Court was delivered by SUBBA RAO	 J. These appeals are by Special Leave from the Award by Shri G. Palit	 Judge	 Fifth Industrial Tribunal	 West Bengal	 in the matter of a dispute between Messrs. Bengal Chemical & Pharmaceutical Works Limited	 Calcutta	 and their employees	 represented by Bengal Chemical Mazdoor Union	 Calcutta. The Government of West Bengal by its order dated September 13	 1956	 referred the following dispute between the parties referred to above to the Second Industrial Tribunal under section 10 of the (Act 14 of 1947)	 hereinafter referred to as the Act. " Is the demand of the employees for increase in Dearness Allowance justified ? If so	 at what rate?". The said Act was amended by the 139 Industrial Disputes (Amendment & Miscellaneous Provisions) Act	 1956 (36 of 1956)	 which came into force on August 28	 1956. On April 9	 1956	 the ' Government made ail order transferring the said dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal. The Fifth Industrial Tribunal	 after making the necessary inquiry	 made the award on August 26	1957	 and it was duly notified in the Calcutta Gazette on September 26	 1957. As a mistake had crept in	 the award was modified by the Tribunal by its order dated the 29th November	 1957; and the modified award was published in the Calcutta Gazette on the 29th November	 1957. Under the award the Tribunal held that there was a rise in the cost of living index and that to neutralise the said rise the employees should get an increase of Rs. 7 in dearness allowance on the pay scale up to Rs. 50 and Rs. 5 on the pay scale above Rs. 50. On that basis the dearness allowance payable to the employees was worked out and awarded. The correctness of the award is questioned in these appeals. The Company preferred Civil Appeal No. 125 of 1958 against the award in so far it was against it and the Union preferred Civil Appeal No. 164 of 1958 in so far it went against the employees. For convenience of reference	 the parties will be referred to in the course of the judgment as the Company and the Union. Learned Counsel for the Company raised before us the following points: (1) The order dated April 9	 1957	 made by the Government transferring the dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal was illegal; (2) the previous award made by the Tribunal between the same parties on April 26	 1951	 and confirmed by the Labour Appellate Tribunal by its order dated August 30	 1951	 had not been terminated in accordance with the provisions of section 19(6) of the Act and therefore the present reference was bad in law and without jurisdiction; (3) there was no change in the circumstances obtaining at the time the previous award was made and those prevailing at the time of the present reference as to justify making out a new award; (4) the Tribunal 140 went wrong in taking the rise in the cost of living index between the years 1954 and 1957 instead of taking the fluctuating rate in the index between the date of the earlier award	 i.e.	 August 30	 1951	 and the date of the present reference in the year 1957 ; (5) the Tribunal went wrong in so far as it based its decision on the Second Engineering Award of 1950 which was already considered by the Tribunal in its earlier award of the year 1951; and (6) in any event	 in computing the amount	 the Tribunal applied wrong criteria. We shall consider the above contentions seriatim. But before doing so	 it will be convenient to refer briefly to the scope of jurisdiction of this Court under article 136 of the Constitution vis a vis the awards of Tribunals. Article 136 of the Constitution does not confer a right of appeal to any party from the decision of any tribunal	 but it confers a discretionary power on the Supreme Court to grant special leave to appeal from the order of any tribunal in the. territory of India. It is implicit in the discretionary reserve power that it cannot be exhaustively defined. It cannot obviously be so construed as to confer a right to a party where he has none under the law. The is intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining	 conciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the tribunals are	 to a large extent	 free from the restrictions of technical considerations imposed on courts. A free and liberal exercise of the power under article 136 may materially affect the fundamental basis of such decisions	 namely	 quick solution to such disputes to achieve industrial peace. Though article 136 is couched in widest terms	 it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice	 causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation	 and final decision by this Court or discloses such other exceptional or special circumstances which merit the consideration of this Court. The points raised by the 141 learned Counsel	 except perhaps the first point 	 do not stand the test of any one of those principles. Learned Counsel for the Company	 however	 says that	 though the ' said principles might be applied at the time of granting leave	 once leave is given no such restrictions could be imposed or applied at the time of the final disposal of the appeal. The limits to the exercise of the power under article 136 cannot be made to depend upon the appellant obtaining the special leave of this Court	 for two reasons	 viz.	 (i) at that stage the Court may not be in full possession Of all material circumstances to make up its mind and (ii) the order is only an ex parte one made in the absence of the respondent. The same principle should	 therefore	 be applied in exercising the power of interference with the awards of tribunals irrespective of the fact that the question arises at the time of granting special leave or at the time the appeal is disposed of. It would be illogical to apply two different standards at two different stages of the same case. The same view was expressed by this Court in Pritam Singh vs The State of Madras (1)	 Hem Raj vs State of Ajmer(1) and sadhu Singh vs State of Pepsu(3) The first question turns upon the construction of the relevant provisions of the Act as amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act	 1956. The relevant provisions inserted by the Amending Act read as follows: "Section 2(r) : I Tribunal ' means an Industrial Tribunal constituted under section 7A." " 7 A. Tribunals. (1) The appropriate Government may	 by notification in the official Gazette	 constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter	 whether specified in the Second Schedule or the Third Schedule. (2) A Tribunal shall consist of one person only to be appointed by the appropriate Government. (3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless (1) ; (2) (3) A.I.R. 1954 S.C. 271. 142 (a) he is	 or has been	 a Judge of a High Court; or (b) he has held the office of the Chairman or any other member of the Labour Appellate Tribunal constituted under the Industial Disputes (Appellate Tribunal) Act	 1950 (48 of 1950)	 or of any Tribunal	 for a period of not less than two years. (4) The appropriate Government may	 if it so thinks fit	 appoint two persons as assessors to advise the Tribunal in the proceeding before it." "33B. (1) The appropriate Government may	 by order in writing and for reasons to be stated therein	 withdraw any proceeding under this Act pending before a Labour Court	 Tribunal	 or National Tribunal	 ' as the case may be	 for the disposal of the proceeding and the Labour Court	 Tribunal or National Tribunal to which the proceeding is so transferred may	 subject to special directions in the order of transfer	 proceed either de novo or from the stage at which it was so transferred : Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or National Tribunal	 the proceeding may also be transferred to a Labour Court. " Section 30 of the Amending Act reads: " If immediately before the commencement of this Act	 there is pending any proceeding in relation to an industrial dispute before a Tribunal constituted under the (14 of 1947)	 as in force before such commencement	 the dispute may be adjudicated and the proceeding disposed of by the Tribunal after such commencement	 as if this Act has not been passed." Section 7	 before the Amendment ran thus: " The appropriate Government may constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act. (2) A Tribunal shall consist of such number of members as the appropriate Government thinks fit. Where the Tribunal consists of two or more members	 one of them shall be appointed as chairman. 143 (3) Every member of the Tribunal shall be an independent person	 (a) who is or has been a Judge of a High Court or a District Judge	 or (b) is qualified for appointment as a Judge of a High Court: Provided that the appointment to a Tribunal of any person not qualified under part (a) shall be made in consultation with the High Court of the Province in which the Tribunal has or is intended to have	 its usual place of sitting. " It will be seen from the aforesaid provisions that the Amending Act	 which came into force on August 28	 1956	 changed the constitution of a tribunal to some extent and conferred a power for the first time on the Government to transfer a proceeding pending before a tribunal to another tribunal; or in the case of a proceeding under section 33 or 33A pending before a tribunal to another tribunal or to a Labour Court. Section 30 of the Amending Act expressly saves a pending proceeding before a tribunal constituted under the Act before the Amending Act came into force and directs that such dispute shall be adjudicated and the proceeding disposed of by that tribunal after the commencement of the Amending Act as if that Act had not been passed. A combined and fair reading of the aforesaid provisions	 it is argued	 was that section 33B	 inserted in the Act by the Amending Act	 was prospective in operations i.e.	 it would apply only to proceedings initiated in the tribunal constituted Under the amended Act and that proceedings pending before the tribunals constituted under the Act before the commencement of the Amending Act would be disposed of as if the Amending Act had not been passed. The Parliament	 presumably to clarify the position	 brought out another Amending Act styled the Industrial Disputes (Amendment) Act	 1957 (18 of 1957)	 whereunder among other things	 a new definition of " Tribunal " was given in substitution of that in section 2(r) of the Act. The substituted definition reads: " 'Tribunal ' means an Industrial Tribunal constituted under section 7A and includes an Industrial 144 Tribunal constituted before the 10th day of March	 1957	 under this Act. " Sub section (2) of section I of the Amending Act 18 of 1957 says that section 2 shall be deemed to have come into force on the 10th day of March	 1957. The result is that section 33B should be read along with the definition of a " Tribunal " inserted by the Amendment Act 18 of 1957	 as if that definition was in the Act from March 10	 1957. If that definition of a " Tribunal " 'be read in place of the word 	Tribunal" in section 33B	 the relevant part of that section reads: " (1) The appropriate Government may	 by order in writing and for reasons to be stated therein	 withdraw any proceeding under this Act pending before a Tribunal constituted before the 10th day of March	 1957	 and transfer the same to another Tribunal constituted under section 7A of the Act." So construed it follows that in respect of proceedings pending in a tribunal constituted before the 10th day of March	 1957	 the Government has the power to transfer them from that date to any other tribunal. It is said that this construction would make section 30 of the Amending Act 36 of 1956 otiose or nugatory. That section contained only a saving clause and it was not inserted in the Act; it served its purpose	 and even if it ceased to have any operative force after the Amendment of 1957	 that circumstance cannot have any bearing on the impact of the amendment of the definition of " Tribunal " on the provisions of section 33B of the Act. In the present case	 the Government made the order of transfer on April 9	 1957	 i.e.	 after section 2 of Amendment Act 18 of 1957 was deemed to have come into force. It must	 therefore	 be held that the Government acted well within its powers in transferring the dispute pending before the Second Industrial Tribunal	 to the Fifth Industrial Tribunal. The second contention	 namely	 that the Award of 1951 was not terminated in accordance with law	 does not appear to have been pressed before the Tribunal. The governing section is section 19(6) which says: " Notwithstanding the expiry of the period of operation under sub section (3)	 the award shall 145 continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award '. " In the first written statement filed by the Company before the Tribunal	 no plea was taken based upon section 19(6) of the Act. In the second written statement filed by the Company on December 20	 1956	 a contention was raised to the effect that the award dated June 21	 1951	 was not terminated under section 19(6) of the Act	 that the said award was binding between the parties and therefore the reference was bad in law. Notwithstanding the said allegation	 the award dis closes that no issue was raised on that count and no argument was advanced in support thereof. This attitude might have been adopted by the Company either because it did not think fit to rely upon a technical point but had chosen to get a decision of the Tribunal on merits	 or it might be that there was no basis for the contention	 as the company might have received notice under the said section. Though it may not be quite relevant	 it may be mentioned that even in 1951 when the dispute between the parties was referred to the Industrial Tribunal	 though a similar contention was open to the Company and indeed was suggested by the Tribunal	 it moved the Tribunal to give an award on the merits of the matter. If this plea had been seriously pressed	 the Tribunal would have raised a separate issue and the Union would have been in a position to establish that notice had been served on the Company as required by section 19(6) of the Act. As the question raised depends upon elucidation of further facts	 we do not think that we would be justified in allowing the Company to raise the plea before us	 and we	 therefore	 do not permit them to do so. The fourth point turns on the construction of the terms of the agreement entered into between the parties on September 15	 1954. The dispute between the parties had an earlier origin and apart from the 19 146 present reference	 there were as many as four references and four awards	 and the last of them was dated April 3	 1951. The Company preferred an appeal against that award to the Labour Appellate Tribunal 	 Calcutta	 which	 with some modification	 confirmed the award of the Tribunal on August 30	 1957. That award as modified by the Appellate Tribunal fixed the basic wages and the rate of dearness allowance payable to the employees. The employees were not satisfied with the award and they placed before the. Company a new charter of demands claiming higher rates of dearness allowance and wages	 but the dispute was compromised and the parties entered into an agreement dated September 15	 1954	 by virtue of which	 the Company introduced the incremental scale in the wage structure. As regards the dearness allowance	 it was stated in cl. 1 1 of the agreement as follows: "The existing rate of D. A. will prevail unless there is a substantial change in the working class cost of living index	in which case the rate will be suitably adjusted." On the construction of this clause depends the question of the Union 's right to claim enhanced dearness allowance. It is common case that if the cost of living index in the year 1951 was taken as the basis	 there was a fall in the rate of working class cost	 of living index in 1957. On the other hand	 if the cost of living index in 1954 was the criterion	 there was a substantial increase in the cost of living index in 1957. The question	 therefore	 is what did the parties intend to agree by the aforesaid clause in the agreement. To ascertain the intention of the parties	 we should con sider the circumstances under which the said agreement was entered into between the parties. Exhibit 6 is the said agreement. The preamble to the agreement reads : " The Company and the Union came to a settlement in respect of the Pay Scales and Grades in the Charter of Demands dated 25th June	 1953	 at the intervention of Shri A. R. Ghosh	 Asstt. Labour Commissioner during the Conciliation proceedings ending on the 30th August	 1954. " 147 The preamble indicates that the entire situation obtaining on the date of the agreement was reviewed and the parties agreed to the terms of the settlement mentioned therein. Under clause (1) of the agreement	 pay scale and grade as given in annexure B was agreed upon for the time being for a period of three years as an experimental measure	 to be reviewed	 modified or suspended or withdrawn after three years	 depending upon the Company 's business and financial condition. By el. (2)	 the employees agreed not to raise any dispute involving any further financial burden on the Company during the next three years in respect of pay scale and grade. Clauses (3) to (5) deal with increments and the age of retirement. Clause (6) provides for the piece rated (contract) workers in respect of their increments. Clause (7) is in respect of increment for the daily rated workers. Clause (8) is in respect of the grade and scale of pay and increments of Chemists	 Engineers and Doctors	 etc. Clause (9) is to the effect that the employees who would be made permanent thence forward would be grouped under two divisions for the purposes of giving effect to the scale of pay. Clause (11) which we have already extracted above relates to the dearness allowance. Clause (12) says " barring the question of bonus for 1358 and 1359 B. S.the Union withdraws its claim in respect of other items in the Charter of Demands dated 25th June	 1953. " We have given the agreement in extenso only for the purpose of showing that all the disputes between the parties arising out of the charter of demands dated June	 25	 1953	 were settled between them and reduced to writing. The agreement was self contained and started a new chapter regulating the relationship of the parties to the dispute in respect of matters covered by it. The award must be deemed to have been superseded by the new agreement. In this context the crucial words " existing rate of D. A. "	 on which both the learned Counsel relied	 could have only one meaning. Do the words " existing rate " refer to the date of the agreement or to the date of the award ? It is true that the existing rate of D. A. had its origin in the award and was made to prevail 148 under the agreement	 that is to say that the rate was accepted by the parties as reasonable on the date of "the agreement	 till there was a substantial change in the working class cost of living index. If the contention of the learned Counsel for the Company should prevail	 the agreement would not be self contained	 but only to be construed as modifying the earlier award to some extent. We are satisfied that in regard to matters covered by it	 the agreement replaced the earlier award and therefore the date of the agreement is the crucial one for ascertaining whether there was substantial change in the working class cost of living index in the year 1957. We	 therefore	 reject this contention. Contentions 3	 5 and 6 raise pure questions of fact. The Tribunal	 on the consideration of the entire material placed before it	 came to the conclusion that there was change of circumstances which entitled the employees to claim an increase in their dearness allowance. It has also fixed the rate of increase in the dearness allowance on the basis of the rise in the cost of living index. In doing so	 it also took into consideration the difficulties facing the industry and the repercussion of the rise in the dearness allowance on the consumers in general. Having regard to the overall picture	 it came to the conclusion that full neutralisation of the deficiency as a result of rise in the cost of living index by dearness allowance could not be permitted and therefore allowed them only 75 per cent. of the increase in the dearness allowance to which they would have otherwise been entitled on the basis of the rise in the cost of living index. The finding given by the Tribunal is one on fact and we do not see any permissible ground for interference with it in this appeal by special leave. Before closing	 one point strenuously pressed upon us by the learned Counsel for the Company which is really another attempt to attack the finding of fact given by the Tribunal from different angle must be mentioned; it was that the Tribunal wrongly relied upon Exhibit 3	 corrected on the basis of the information given by the State Statistical Bureau	 West Bengal	 for ascertaining the working class cost of living index since August 1954 up to March 1957. On the 149 basis of Exhibit 3	 the Tribunal held that the working class cost of living index stood at 344.1 in August 1954 and it rose to 400.6 in May 1957	 with the result that there was a rise of 56 points	 a substantial rise in the cost of living index. Exhibit 3 certainly supports the finding of the Tribunal. The learned Counsel for the Company points out with reference to the relevant entries in the Monthly Statistical Digest	 West Bengal	 that the said figures relate only to working class menials and the corresponding entries in regard to the working class cost of living index do not indicate so much increase as in the case of the menial class. Learned Counsel has also taken us through the relevant figures. The relevant entries in the Monthly Statistical Digest were not filed before the Tribunal. Indeed when the Union 's witness	 Shri Satyaranjan Sen	 was examined before the Tribunal	 he was not cross examined with a view to elicit information that Exhibit 3 did not relate to the working class cost of living index. When Shri Chatterjee	 the Assistant Manager of the Company	 who was examined after Shri Sen	 gave evidence	 he not only did not object to the entries in Exhibit 3 but stated that he was not aware of any substantial increase in the working class cost of living index and complained that similar entries for all the relevant years had not been produced. Even before the Tribunal it does not appear that any argument was advanced contesting the relevancy of Exhibit 3 on the ground that it did not refer to the working class cost of living index. In the circumstances	 we do not think that we are justified to allow the learned Counsel for the Company to make out a new case for the first time before us	 upsetting the Tribunal 's basis for calculation and involving further and different calculations. In the result	 we confirm the award of the Tribunal and dismiss the appeal with costs. The learned Counsel	 appearing for the Union	 did not press the appeal No. 164 of 1958	 filed by the Union	 and therefore it is also dismissed with costs. Appeals dismissed.

Summary:
Aggrieved by an Award of 195	 the employees placed before the Company a fresh charter of demands which was mutually settled by a written agreement which provided	 inter alia	 that the existing rate of dearness allowance should prevail which was adjustable to any future substantial change in the cost of living index of the working class. As the cost of living increased disputes arose	 and in spite of the said Award of 1951	 137 which was not terminated according to law	 the dispute arising out of the said written agreement was referred for adjudication by the Government to the Second Industrial Tribunal	 Calcutta	 in September	 1956. In April 1957	 the Government transferred the dispute from the Second Industrial Tribunal to the Fifth Industrial Tribunal. The Company	 inter alia	 contended that the Government had no power to transfer the dispute from one Tribunal to another and that the reference was bad as the 1951 Award had not been duly terminated. The Industrial Disputes (Amendment and Miscellaneous Provisions) Act (36 of 1956) amending the Industrial Disputes Act (14 Of 1947) came into force on August 28	 1956	 giving authority to the Government to transfer a reference from one Tribunal to another	 which was followed by a further amending Act	 being Industrial Disputes (Amendment) Act (18 of 1957) whereunder among other things a new definition of 'Tribunal ' was given	 whereby the Industrial Tribunal constituted prior to March 10	 1957	 under section 7A of Act 14 Of 1947 was included. Held	 that as a result of the amendments to the 	 the Government had authority to transfer a case from one Tribunal to another. 'Tribunal ' as defined by section 2(r) of the 	 as amended by Act 36 of 1956	 read with amending Act 18 of 1957	 empowers the Government to transfer a reference from one Tribunal to another. Where	 in spite of a previous award	 the employees after raising fresh demands entered into a new agreement with the employer which started a fresh chapter regulating the relationship of the parties	 the previous award	 though not terminated in accordance with the provisions of law	 must be deemed to have been superseded. Held	 further	 that though article 136 of the Constitution is couched in the widest terms and confers a discretionary power	 (which cannot exhaustively be defined) on the Supreme Court to grant special leave to appeal from the order of a tribunal	 but it is necessary for the Supreme Court to exercise its said discretionary jurisdiction only in cases (a) where there is a violation of the principle of natural justice	 (b) raises an important principle of industrial law requiring elucidation and final decision by the Supreme Court	 or (c) discloses such other exceptional or special circumstances which merit the final decision by the Supreme Court. Such discretionary reserve power cannot obviously be so construed as to confer a right of appeal to any party from the decision of a Tribunal	 where he has none under the law. is intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining	 conciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the Tribunals are to a 18 138 large extent free from restrictions of technical considerations imposed on courts. A free and liberal exercise of the discretionary powers by the Supreme Court may materially affect the fundamental basis of the decision	 namely	 quick solution to such disputes to achieve industrial peace. Where an Industrial Tribunal on the consideration of the entire material placed before it and having regard to the overall picture	 came to a conclusion of facts	 the Supreme Court will not interfere with such finding of fact nor will it be justified to allow to make a new case for the first time before it. Pritam Singh vs State of Madras	 ; ; Hem Raj vs State of Ajmer	 and Sadhu Singh vs State of PEPSU	 A.I.R. 1954 S.C. 272	 referred to.