J. K. Iron and Steel Co. Ltd., Kanpur
Vs. The Iron and Steel Mazdoor Union, Kanpur [1955] INSC 81 (23 December 1955)
BOSE, VIVIAN AIYYAR, T.L. VENKATARAMA AIYAR,
N. CHANDRASEKHARA
CITATION: 1956 AIR 231 1955 SCR (2)1315
ACT:
Industrial Disputes Act, 1947, (Act XIV of
1947), ss. 7 and 11-Adjudicator--Scope and authority of--Democratic
Constitution--Essentials thereof--Rule of Law-Benevolent despotism--Foreign
thereto.
HEADNOTE:
Held, that adjudication by an adjudicator
under the Industrial Disputes Act does not mean adjudication according to the
strict law of master and servant and that an adjudicator's award may contain
provisions for the settlement of a dispute which no court could order if it was
bound by ordinary law. Thus the scope of an adjudication under the Industrial
Disputes Act is much wider than that of an arbitrator making an award.
Industrial Tribunals are not fettered by such limitations and an adjudicator
has jurisdiction to investigate disputes about discharge and dismissal and
where necessary, to direct reinstatement.
Nevertheless, wide as their powers are, these
Tribunals are not absolute and there are limitations to the ambit of their
authority. Though they are not courts in the strict sense of the term, they
have to discharge quasi judicial functions and as such are subject to the
overriding jurisdiction of the Supreme Court under Art. 136 of the
Constitution. Their powers are derived from the statute that creates them and
they have to function within the limits imposed there and to act according to
its provisions. Those provisions invest them with many of the trappings"
of a court and deprive them of arbitrary or absolute discretion and power.
Benevolent despotism is foreign to a
democratic Constitution. When the Constitution of India converted this country
into a sovereign, democratic, republic, it did not invest it with the mere
trappings of democracy but invested it, with the real thing, the true kernel of
which is the ultimate authority of the courts to restrain all exercise of
absolute and arbitrary power not only by the executive and by officials and
lesser tribunals but also by the legislatures and even by Parliament itself.
The Constitution established a "Rule of Law" in this land and that
carries with it restraints and restrictions that are foreign to despotic power.
The courts, however, must always exercise
caution and should not substitute their own judgment and discretion for that of
such tribunals.
166 1316 In view of ss. 7 and 11 of the Industrial
Disputes Act, 1947 and U.P. State Industrial Tribunal Standing Orders 1951
these Tribunals, though not bound by all the technicalities of Civil Courts
must nevertheless follow the general pattern of the Civil Courts in the matter
of taking the pleadings of the parties in writing and the drawing up of issues.
It is not open to the Tribunals to disregard the pleadings and to reach any
conclusion that they think are just and proper.
The Supreme Court remitted the case to the
Labour Appellate Tribunal for a rehearing of the appeals as the Adjudicator and
the Labour Appellate Tribunal had adopted the attitude of benevolent despots
and had based their conclusion on irrelevant considerations and ignored the
real questions that arose for decision and the issues that arose out of the
pleadings of the parties.
Western India Automobile Association v.
Industrial Tribunal, Bombay ([1949] F.C.R. 321, 345), State of Madras v. C. P.
Sarathy, ([1953] S.C.R. 334, 348), Bharat Bank Ltd.
v. Employees of Bharat Bank Ltd., ([1950]
S.C.R. 459, 497), Muir Mills Co. v. Suti Mills Mazdoor Union, Kanpur ([1955] 1
S.C.R. 991, 1001), referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 22 and 22-A and 301 of 1955.
Appeals by special leave from the judgment
and order dated the 4th July 1952 of the Labour Appellate Tribunal of India,
Lucknow in Appeals Nos. 391 and 392 of 1951 arising out of the Award dated the
1st November 1951 of the Adjudicator and Additional Regional Conciliation
Officer, Kanpur in Case No. 53 of 1951.
G.S. Pathak, (Rameshwar Nath and Rajinder
Narain), for the appellants in all the appeals.
G. C. Mathur, for the respondent in C. A.
Nos. 22 and 22-A and respondent No. 4 in C. A. No. 301 of 1955.
K. B. Asthana and C. P. Lal, for the
respondent No. 3 in C. A. No. 301 of 1955.
1955. December 23. The Judgment of the Court
was delivered by BOSE J.-We are concerned here with three appeals. They arise
out of a dispute between the J.K. Iron and Steel Company Limited and the Iron
and Steel Mazdoor Union. We will call them the 1317 Company and the Mazdoor
Union respectively. The facts are as follows.
The Company had its factory and other works
at Kanpur in Uttar Pradesh. On 10-4-1948 the Ministry of Commerce in the
Government of India ordered the Company to shift its Jute Baling Hoops factory
from Kanpur to Calcutta.
As no land was available in Calcutta no
effect could be given to this order till the year 1950-51. On 19-3-1951 the
Iron and Steel Controller ordered the Company to stop the rolling of jute
baling hoops at once. Accordingly, the production of these hoops was stopped
from that date.
At the same time there was scarcity of scrap
iron and the Company's case is that forced it to reduce the working of its
furnace from three shifts a day to one.
The Company states that because of these two
causes it was obliged to retrench its staff. Therefore, it issued the followingnotice
dated 15-5-1951 to 128 of its workers:
"Consequent to transfer of the Rolling
Mill to Calcutta and want of scrap to Furnace Department in full, the services
of the persons as per list attached are dispensed with from today.
Their wages and other dues in full settlement
will be paid after 2 P.m." Twenty five of the 128 accepted their wages and
other dues in full settlement but the remaining 103 refused. Their cause was
accordingly espoused by the Mazdoor Union which made an application to the
Regional Conciliation Officer at Kanpur on 16-5-1951 complaining that the
retrenchment was illegal and asking that the workmen be reinstated with full
payment of their wages for the period they were out of work.
This was forwarded to the Government of Uttar
Pradesh and on 28-6-1951 the Governor of that State referred the following
issue to the Regional Conciliation Officer at Kanpur under sections 3, 4 and 8
of the U.P. Industrial Disputes Act, 1947 for adjudication:
"Whether the retrenchment of the workmen
1318 given in the Annexure by Messrs J. K. Iron and Steel Co.
Ltd' Kanpur, is unjustified? If so, to what
relief are the workmen entitled?" The parties filed their written
statements on 14-7-1951 and the Company filed a rejoinder on 20-7-1951. The
Adjudicator thereupon took evidence, oral and documentary, and gave his award
on 1-111951. But before that was done the case of one of the workmen (Kapil Deo
Singh) was withdrawn and that left 102 for him to deal with.
The Adjudicator reached the following
conclusions. The Mazdoor Union had contended that the retrenchment was not in
good faith. The Adjudicator held that it was and that there was neither
harassment nor victimisation. So also on the question about the shortage of
scrap he held that there was a shortage but that it was only temporary and that
it was not likely to last for more than 8 or 9 months. He then referred to the
Standing Orders and said that the Company was not entitled to resort to
retrenchment except as a last resort and that in the circumstances of the
present case these workmen should (1) have been offered the option of
employment in the new set up at Calcutta; and (2) those that did not want it
should have been laid off in rotation instead of being retrenched. He accordingly
ordered that should be done and drew up a graduated scale ,of compensation.
We observe in passing that the expression
used throughout has been "played off". The reason for that is that is
the phrase used in the Standing Orders and in the copy of the Act and Model
Standing Orders reproduced by the U. P. Department of Labour in its Annual
Review of Activities. But it seems to us that was due to printer's error at
some stage which has been repeated in various places. The correct expression is
"lay off". That is the expression used and defined in the Act. The
Standing Orders should have used the same phrase. Apart from the definition in
the Act, "lay off " is a well-known industrial term meaning,
according to the Oxford Dictionary, "a period during which 1319 a workman
is temporarily discharged". We will use the correct expression in this
judgment.
Both sides appealed to the Labour Appellate
Tribunal. The decision, there was as follows. The Tribunal upheld the finding
that there was in fact a shortage of scrap iron and also agreed with the
Adjudicator that was only likely to be temporary. Then it held, apparently as a
matter of law, that under the Standing Orders it is not permissible to retrench
workmen and deprive them of their maintenance when there is only a temporary
shortage of material, whatever the duration of the shortage; all that the
employer can do in a case like that is to lay them off.
The Tribunal also upheld the finding that the
Hoop Mill was in the course of transfer to Calcutta consequent on the orders of
Government, but they held that there was nothing on the record to show which of
the 105 persons (it should be 102) whose cases they were considering were
"specifically engaged in the Hoop Mills and had become surplus by reason
of the transfer to Calcutta".
This is one of the findings attacked before
us by the Company on the ground that the Tribunal has failed to realize that
the Company's operations must be considered as a whole and that because of the
interdependence of its various departments a closure of one section, coupled
with a shortage of materials in another, is bound to affect its all round
working and therefore the question of retrenchment cannot be looked at from the
narrow point of view of only one department but must be viewed in its all round
setting.
We will deal with this later.
Another of the Tribunal's findings on the
"transfer" aspect of the case was that a cut in profits is not in
itself a good ground for retrenchment. It held that retrenchment can only be
made when there is a total closure of the mill "or when for any such other
reason the workmen become surplus".
The final conclusion of the Tribunal was that
the retrenchment was "wholly unjustified". Accordingly, it set aside
the retrenchments and held that the 1320 affected workmen will be deemed to be
"still in service".
and directed that they be reinstated. The
appeal of the Mazdoor Union was partly allowed and that of the Company
dismissed.
This impelled the Company. to do the
following things:
(1)to file a writ petition in the Allahabad
High Court on 48-1952. This was dismissed by that Court on 9-4-1953 and Civil
Appeal No. 301 of 1955 is the appeal to us against that order;
(2)to file two appeals to this Court against
the order of the Labour Appellate Tribunal. These appeals are Civil Appeal No.
22 of 1955 and Civil Appeal No. 22-A of 1955.
This judgment covers all three appeals.
Mr. G. C. Mathur, who appeared for the
Mazdoor Union, raised a preliminary objection against the Company's appeals
based on the following facts. The Company had appealed to this Court against
the Labour Appellate Tribunal's decision on 26-8-1952. The petition was
summarily dismissed on 10-91952. Counsel contended that barred the present
appeals:
Civil Appeal 22-A of 1955 because it is an
appeal against the very order that is now under appeal, and Civil Appeal 301 of
1955 on the basis of res judicata because it raises the same points as were
raised in the petition for special leave which was dismissed.
We rejected this objection because the
previous petition for appeal does not appear to have been dismissed on the
merits but on two technical grounds. It is true the order of dismissal is
general but the office note states (1) that no certified copy of the decision
appealed against was filed though Order 13, rule 4, of the Rules of the Supreme
Court, requires that and (2) that the reliefs sought in the petition for
special leave and in the writ petition before the High Court are the same. It
is evident that formed the basis of the order of dismissal especially as it is
the usual practice not to entertain an appeal here when a similar matter is
pending in the High Court, 1321 Before we come to the merits it will be
necessary to set out the grounds on which the High Court proceeded. The learned
Judges were concerned with a writ for certiorari and so naturally focussed
their attention on questions of jurisdiction rather than on the merits. They
considered that the Adjudicator' was free to take into consideration all
matters bearing on the question of retrenchment and to consider whether it was
"absolutely necessary" to retrench the workmen. They looked at
Standing Order 16(a) and decided that the Adjudicator had jurisdiction to
determine the scope and meaning of this Order and that he and the Labour
Appellate Tribunal were competent to hold that these orders meant that the
Company was not entitled to take what the learned Judges called the
"extreme step of retrenchment" so long as it was possible for it to
"lay off " the workmen.
That at once raises questions about the scope
and authority of an adjudicator under the Industrial Disputes Act. But that, we
feel is now settled by authority. The Federal Court held in Western India
Automobile Association v. Industrial Tribunal, Bombay(1) that adjudication does
not mean adjudication according to the strict law of master and servant and
held that an adjudicator's award may contain provisions for settlement of a
dispute which no Court could order if it was bound by ordinary law. They held
that Industrial Tribunals are not fettered by these limitations and held
further that an adjudicator has jurisdiction to investigate disputes about
discharge and dismissal and, where necessary, to direct reinstatement.
That decision was followed with approval by
this Court in State of Madras v. C. P. Sarathy(2) and it was again pointed out
that the scope of an adjudication under the Industrial Disputes Act is much
wider than that of an arbitrator making an award. It would be pointless to
cover the same ground;
so we must take that now as settled law.
All the same, wide as their powers are, these
Tribunals are not absolute and there are limitations to the ambit of their
authority. In Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.(1) this Court
held by a majority that though these Tribunals are not Courts in the strict
sense of the term they have to discharge quasi judicial functions and as such
are subject to the overriding Jurisdiction of this Court under article 136 of
the Constitution. Their powers are derived from the statute that creates them
and they have to function within the limits imposed there and to act according
to its provisions. Those provisions invest them with many of the
"trappings" of a court and deprive them of arbitrary or absolute
discretion and power. There is, in our opinion, an even deeper reason which is
hinted at in the judgment of Mahajan J. (as he then was) at page 500 where he
says that "benevolent despotism is foreign to a democratic
Constitution". That, in our opinion, is the heart of the matter. When the
Constitution of India converted this country into a great sovereign,
democratic, republic, it did not invest it with the mere trappings of democracy
and leave it with merely its outward forms of behaviour but invested it with
the real thing, the true kernel of which is the ultimate authority of the
Courts to restrain all exercise of absolute and arbitrary power, not only by
the executive and by officials and lesser tribunals but also by the
legislatures and even by Parliament itself. The Constitution established a
"Rule of Law" in this land and that carries with it restraints and
restrictions that are foreign to despotic power.
Despite this, however, the Courts must always
exercise caution and see that they do not substitute their own judgment and
discretion for that of these Tribunals, for, as Mahajan, J. said in Bharat Bank
Ltd. v. Employees of Bharat Bank Ltd.(1) the overriding powers of this Court
under article 136 are exceptional; and he went on to point out that" extraordinary
Powers of this character can only be justifiably used here there has been a
grave miscarriage of justice or where the procedure adopted by (1) [1950]
S.C.R. 459, 497.
1323 the Tribunal is such that it offends
against all notions of legal procedure".
Now the position in the present case is this.
The Tribunals are directed by section 7 of the Industrial Disputes Act to
adjudicate industrial disputes "in accordance with the provisions of the
Act" and section 11 directs them to follow "such procedure as may be
prescribed". The procedure for the Uttar Pradesh Tribunals is laid down by
the U.P. State Industrial Tribunal Standing Orders, 1951. Very broadly it
follows the pattern of the civil Courts. Once the reference is made by
Government, the Tribunal has to take the pleadings of the parties in writing
and to draw up issues.
Then it takes evidence, hears arguments and
finally pronounces its "judgment" "in open Court". It is
evident from this that though these tribunals are not bound by all the
technicalities of civil Courts, they must nevertheless follow the same general
pattern. Now the only point of requiring pleadings and issues is to ascertain
the real dispute between the parties, to narrow the area of conflict and to see
just where the two sides differ. It is not open to the Tribunals to fly off at
a tangent and, disregarding the pleadings, to reach any conclusions that they
think are just and proper.
What exactly was the dispute in the present
case? The broad conflict was of course about the retrenchment and the Tribunal
was asked to decide whether the retrenchment of these 103 persons was
unjustified; but that by itself left the issue much too broad, so it was necessary
to "particularise" and that was done in the pleadings.
The Company justified its action on two
grounds: (1) because of the shortage of scrap and (2) because of the stoppage
of work in the Hoop Department consequent on the orders of Government. But none
of the persons retrenched came from the Hoop Department and the Company
explained that was because of the interdependence of its various departments
and, taking the retrenchments in groups, department by department, it explained
just why reduction was effected in those particular places. In 167 1324 this
way, it dealt serially with the retrenchments in(1) the Scrap Department, (2)
the Cast Iron Foundry,(3) the Punching and Pressing Department, (4) the Watch
and Ward Department and (5) the Clerical Department.
The Company also made the following
assertions, (1) that retrenchment is a necessary incidence of an industry and
that the discretion of the management should not be interfered with; (2) that
it is the exclusive function of the management to determine the size of its
working force and (3) that the employer must be the sole judge as to how
economically or efficiently its business is to be run.
The Mazdoor Union retorted that the
retrenchments were not done in good faith. It denied that there was any shortage
of scrap but admitted the interdependence of the various departments and used
that fact as an argument to indicate the Company's bad faith. The Union said
the very fact that there had been no retrenchment in the department that was
directly affected, namely the Hooping Department, and that there was no
retrenchment in certain allied departments that would have been the first to be
bit, had there been any real shortage of scrap, showed that the reasons given
by the Company for the retrenchment were untrue. In particular, the Union
pointed out that there had been no retrenchment in the following departments
which, according to it, would have been the hardest hit had there been any
truth in the Company's case namely, (1) the Furnace Department, (2) Rolling
Mill Department, (3) Workshop, (4) Painting and Bundling, (5) Works and
Maintenance. Then, as regards the Foundry Department and the Scrap Department
where there bad been retrenchments, the Union said that these departments bad
sub-sections and yet there were no retrenchments in the sub-sections that would
have been hit if the Company's allegations were true.
The Union gave no reply to the Company's
assertions about its right to retrench in the absence of bad faith-, its right
to determine the size of its working force and its right to judge of the
economy and efficiency of its business.
The Company filed a written rejoinder and
explained in detail why there had been no retrenchments in the places where,
according to the Union, there should have been on the facts alleged by the
Company and it again explained why it had retrenched workers in the departments
which, according to the Union, ought to have been the hardest hit. This
explanation again brought out the interdependence of the various departments.
Instead of drawing up issues, as it is
required to do by Standing Order 22 of 1951, and determining just where the
parties disagreed, the Adjudicator at once proceeded to record evidence and
entered upon a rambling enquiry which embraced questions which had not been
raised at all. On the only point on which the parties were really at issue,
namely the good faith of the management, the findings were in favour of the
Company. So also the Adjudicator accepted the Company's assertion about its
right to determine the size of its labour force and to effect retrenchment
where necessary subject only to the proviso which the Adjudicator added, namely
that this must be done in good faith; and indeed the Mazdoor Union had not
challenged these assertions in its written statement.
The Adjudicator said" It is however an
accepted principle that such changes as are being done by the management now
form a part of managerial discretion and cannot be interfered with unless it is
coloured with the element of victimisation or unfair labour practice".
But despite this, and despite his findings
about good faith, the Adjudicator considered that, in spite of it all "the
right of the workmen has to be safeguarded to certain extent".
What is left of the right if the "accepted
principle" be what he says it is-and if there is no victimisation or bad
faith, he did not proceed to explain. If the principle he enunciated and
accepted is sound, then the only rights they have are to complain of 1326 bad
faith, victimisation and so forth. However, feeling under a compulsion to
safeguard these unexplained rights he had recourse to Standing Order 16(a) and
ignored Standing Orders 19 and 20.
The "accepted principle" to which
the Adjudicator refers in the passage quoted above is implicit in Standing
Orders 19(a) and 20(a). They deal with the termination of service by an
industrial establishment and prescribe a certain quantum of notice in writing,
and then comes this important proviso in Standing Order 19 (a) "Provided
that if a permanent workman feels that he has been discharged for reasons not
connected with his employment or that the reason of discharge communicated to
him is not genuine, he may make an appeal to the Labour Commissioner.
The decision of the Labour Commissioner................
shall be binding on both the parties".
Reading the body of Standing Order 19 (a)
along with the proviso in the light of the "accepted principle", it
is evident that the only right the workman has, when his services are lawfully
terminated after service of due notice and so forth, is to question the order
on only two grounds(1)that he has been discharged for reasons not connected
with his employment, and (2)that the reason of discharge communicated to him is
not genuine.
There is nothing in these Standing Orders to
indicate that retrenchment is a measure of last resort and that an employer
must continue to lay off his workmen however uneconomical that may be to the
business; still less that he must lay them off in rotation and thus affect other
workmen who would not be affected by a legitimate order of retrenchment. That
cuts at the root of the "accepted principle".
In any event, the ground on which the
adjudicator proceeded was not a matter in dispute between the parties because
it was not raised in their pleadings and could not have been put in issue bad
the Adjudicator troubled to draw up issues as he should have done. As Mahajan,
J. said, adjudicators and tribunals cannot act as benevolent despots and that
is exactly what it comes to when an adjudicator, after setting out, correctly
in our opinion the Company's rights, holds against the Union on the only
grounds that it did raise and then proceeds to give an award, not only on
grounds that are not raised but on grounds that fly in the face of the very
principles that he enunciated; and that only because he felt that he was under
a compulsion to "safeguard" the workmen to "a certain
extent".
Both sides appealed to the Labour Appellate
Tribunal and the second ground of the appeal lodged, by the Mazdoor Union was
"that the award of the learned Adjudicator is quite arbitrary" which,
of course, is exactly what it was And so also ground No. 9:
"That the learned Adjudicator has gone
beyond his jurisdiction in awarding relief on a question not, referred to it by
Government".
That again we feel is justified. What was
referred was the question of the justification for retrenchment of certain
specified workmen. What was awarded was the laying off of persons whose cases
were not even considered, that is to say, when the Adjudicator directed laying
off in rotation, his order necessarily affected persons who had neither been
laid off nor retrenched and whose cases not even the Union had in mind. It is
to be observed that the Mazdoor Union complains about this part of the order in
ground No. 11 though on a different ground.
The Company also appealed against the
Adjudicator's order and grounds Nos. 6, 9 and 24 of their appeal are directed
against that part of the order that deals with the lay off of the workmen.
Among other reasons advanced is that this will adversely affect others who are
not retrenched. The other grounds repeat what was said in the company's written
statement though in different language.
The Labour Appellate Tribunal contrasted Standing
Order 15(a) with Standing Order 16(a) but also ignored Standing Orders 19(a)
and 20 which are the 1328 only ones that really apply to this case. It upheld
the finding of the Adjudicator that there was a shortage of scrap but held that
as the shortage was for only 6 months retrenchment was not justified.
In point of fact, the Labour Appellate
Tribunal is wrong about the six months. It was under the impression that the
Adjudicator had come to that conclusion. But what the Adjudicator said was that
the shortage at best was for a period of 8 or 9 months. The passage which the
Appellate Tribunal quotes is not the finding of the Adjudicator but the
argument advanced on behalf of the Company. The full passage runs thus:
"Shri Mahalingam stated that Standing
order 16(a) which provides for a lay off of a maximum period of 12 days in a
month contemplates a temporary shortage of very short duration. It could not
apply to shortage of raw materials lasting for more than 6 months and hence the
Company's right to retrench is not affected by the aforesaid Standing
Order".
The Appellate Tribunal quoted the portion we
have underlined but ignored the rest of the sentence and the part that went
before and concluded that the portion underlined was a part of the Adjudicator's
findings.
However, even if we assume that the Tribunal
would have reached the same conclusion if it had realised that the shortage was
for as long as 8 or 9 months, the error into which it has fallen is that the
question of retrenchment cannot be made to depend on the duration of the
shortage or even on the fact that those retrenched will be thrown out of
employment but on the effect that an omission to retrench will have on the
business. In some cases, laying off even for 6 or 8 or 9 months might make the
Company bankrupt, therefore, if the Appellate Tribunal considered that it had
power to stop retrenchment for reasons other than those given in the proviso to
Standing Order 19(a) it was bound to look into the Company's finances and
determine the question of justification on that basis. The only question
referred was the retrenchment justified? and we find it 1329 impossible to see
how that can be determined without considering the question of good faith which
in turn would largely depend on the finances of the Company, on the adverse
effect that retention would have on the business and on whether retention would
mean the deadweight of an uneconomic surplus and so forth.
Next, when the Appellate Tribunal turned its
attention to the transfer of the Hoop Mill to Calcutta, it agreed that would
have been a good ground for retrenching those who were specifically engaged in
the Hoop Mill but not the others.
But this takes an impossibly narrow view and
ignores the over-all working of a business concern and the repercussions that a
transfer of this kind would have on other parts of the business. It totally
ignores the pleadings of the parties and, like the adjudicator, bases its
conclusion on some airy view of what it considers would be a good thing for the
workmen. That is not a decision "given in accordance with the Act"
and is as much open to objection on that score as the award of the Adjudicator.
It is pertinent at this stage to refer to a
decision of this Court reported in Muir Mills Co. v. Suti Mills Mazdoor Union,
Kanpur(1) where Bhagwati, J. delivering the judgment of the Court said"The
considerations of social justice imported by the Labour Appellate Tribunal in
arriving at the decision in favour of the respondent were not only irrelevant
but untenable".
In the present case also we are of opinion
that the Adjudicator and the Labour Appellate Tribunal had adopted the attitude
of benevolent despots and have based their conclusions on irrelevant
considerations and have ignored the real questions that arose for decision and
the issues that arose out of the pleadings of the parties.
It would not be right for us to substitute
our judgment and discretion for that of the Adjudicator and the Tribunal:
accordingly, as we are of opinion that the.
real questions that were in dispute between the (1) [1955] 1 S.C.R. 991, 1001.
1330 parties were neither appreciated nor
considered we have no alternative but to remit the matter to the Labour
Appellate Tribunal for a proper decision after drawing up issues that arise out
of the pleadings, considering them and deciding the dispute accordingly, with
liberty of course to remit the case to the Adjudicator for a retrial or for the
taking of further evidence if it is of the opinion that the omission to draw up
issues and focus attention on the points that seem to be in dispute has had the
result of shutting out evidence that might otherwise have been led.
An agreement said to have been reached
between the parties on 7-9-1953 was placed before us towards the end of the
arguments but we have not looked at it because counsel for the Mazdoor Union
said it did not cover the case of these retrenched workers. The Company
insisted that it did. We were not prepared to investigate that dispute at that
late stage but we make it plain that the Labour Appellate Tribunal will be at
liberty to consider it or not as it deems right after hearing what both sides
have to say about it.
The award and the decision of the Labour
Appellate Tribunal are set aside and the case is remitted to the Labour
Appellate Tribunal for a re-bearing of the appeals filed before it and for a
fresh decision in the light of the foregoing observations.
We will, however, have to make some interim
arrangement for payment of what may be termed a sort of subsistence allowance
to the affected workmen during the pendency of those further proceedings. As
there is no agreement between the parties on the subject, we leave it to the
Labour Appellate Tribunal or the Adjudicator, as the case may be, to make
suitable orders in this respect.
There will be no order, about costs as
neither party is to blame for what has happened.
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