The Kirloskar Oil Engines Ltd.,
Kirkee, Poona Vs. The Workmen & Ors  INSC 324 (17 November 1961)
Clarification of award by Tribunal-Scope- Industrial Disputes Act, 1947 (14 of
1947), s. 36A.
Certain disputes between the appellant and
its workmen were referred to the industrial tribunal for adjudication by the
State Government under the provisions of the Industrial Disputes Act, 1947. The
award made by the tribunal provided, inter alia, (1) that if a workman had to
work on a weekly off or on a holiday he should be paid 1 1/2 times his wages
and dearness allowance over and above a substituted holiday, and (2) that all
the workmen shall be granted 15 days privilege leave in a year which could be
allowed to be accumulated up to 45 days. The appellant applied to the
Government under s. 36A of the Act stating that the directions given by the
tribunal had to be clarified on the grounds, inter alia, (1) that the reason
for directing the additional payment for working on a weekly off or on a
holiday was that the workman was deprived of an opportunity to spend his time
in the company of his colleagues and refresh himself, but that there was no
basis for this since the whole factory worked on weekly off or on a holiday,
and (2) that the accumulation of privilege leave of 45 days to all workmen was
not justified. The tribunal made a clarification as regards privilege leave
confining it to only those workmen who had put in 240 days or more of actual
working during the previous calendar year so as to be in conformity with the
provisions of the Factories Act, 1948, but as regards others matters it held
that the directions given were quite clear and that under the guise of
clarification the appellant could not seek a modification of the award under s.
Held, that 36A of the Industrial Disputes Act,
1947, was intended to empower a tribunal to clarify the provisions of the award
passed by it where a difficulty or doubt arose about their interpretation, and
not to review or modify its own order. Any question about the propriety,
correctness or validity of any provision of the award would be outside the
purview of the enquiry contemplated by that section.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 587 of 1960.
Appeal by special leave from the award dated
December 16, 1958, of the Industrial Tribunal, Bombay, in Reference (I. T.) No.
387 of 1958.
M. C. Setalvad, Attorney-General of India and
I. N. Shroff, for the appellant.
K. R. Choudhuri, for respondnet No. 1.
Naunit Lal, for respondent No. 2.
1961. November 17. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises out of
the proceedings taken at the instance of the appellant, the Kirloskar Oil
Engines Ltd., Kirkee, Poona under s. 36A of the Industrial Disputes Act, 1947
(14 of 1947) (hereafter called the Act). It appears that certain disputes
pending between the appellant and the respondents, its workmen, were referred
to the industrial tribunal for its adjudication by the Government of
Maharashtra. The disputes in question related to seven demands made by the
respondents: two of these were in regard to privilege leave and allowances. The
tribunal which tried the dispute made its award in two parts.
Part I of the award which dealt the demand of
privilege leave and different kinds of allowances was made on June 30, 1958,
and published on July 7, 1958. On August 2, 1958, the appellant applied to the
State Government for reference of certain points to the tribunal for its
clarification under s. 36A. Accordingly an order of reference was made in
respect of the two items privilege leave and allowances. The tribunal has made
the necessary clarification in regard to its direction as to privilege leave.
It has, however, held that the direction made by it for the payment to the
workmen under paragraph 14 of its award needed no clarification. It held that
in substance 493 the appellant was seeking for a modification of the said
direction and that could not be done in the clarification proceedings
contemplated by s. 36A. The clarification award was thus made by the tribunal
and submitted to the Government. It is against this award that the appellant
has come to this Court by special leave.
It would be convenient at this stage to
indicate briefly the nature of the clarification claimed by the appellant
before the tribunal. In regard the claim for privilege leave the original award
by paragraph 10 had directed as follows:
"All the workmen, both daily and monthly
rated, get privilege leave according to the provisions of the Factories Act.
The leave usually comes to 14 or 15 days in a year I consider a privilege leave
of 15 days a year to both the sections of the workmen in the Kirloskar oil
Engines as quite adequate. At present this leave is allowed to be accumulated
for two years. Here I am of the opinion that the accumulation should be up to
45 days. I therefore direct that all the workmen of the Kirloskar Oil Engines
Ltd., Poona, shall be granted 15 days privilege leave (including privilege
leave under the Factories Act) which will be allowed to be accumulated up to 45
days." The appellant apprehended that the direction of the award may
justify a claim by every worker whose name is on the muster roll to 15 days
privilege leave irrespective of his actual attendance during the year. In other
words, the appellant argued before the tribunal in the present proceedings that
the words used by the original award were wide enough to justify a claim for 15
days privilege leave even where the workman was absent from work, for say 360
days in a year, provided his name appeared on the muster roll of the appellant.
The tribunal appreciated the force of this 494 argument. It is common ground
that under s. 79 of the Factories Act 1948, it is only where a worker has
worked for a period of 240 days or more in a factory during a calendar year
that he becomes entitled during the subsequent calendar year to leave with
wages for a number of days calculated at the rate of one day for every twenty
days of work performed by an adult worker in the previous calendar year, or at
the rate of one day for every fifteen days work performed by a child. The
tribunal observed that it was not the intention of the award to depart from the
basic principle prescribed by s. 79; and so it made the necessary clarification
by adding that in order to entitle him to the privilege as directed by the
award every workman must put in 240 days or more of actual working during the
previous calendar year.
Thus, in regard to the provision made by the
award as to privilege leave the clarification claimed by the appellant was
In regard to the second point on which
clarification was sought the relevant direction in the award reads thus:
"At present if a workman works on a
weekly off or on a holiday, he gets a substituted holiday under the Factories
Act but no additional payment. In my opinion a workman makes plans well in
advance about spending his holidays. He spends his time in the company of his
colleagues and refreshes himself. If he gets a substituted holiday, he is
deprived of his enjoyment. He should therefore be compensated in money as well
as by a day off. I therefore direct that if a workman has to work on a weekly
off or on a holiday (paid or unpaid) he should be paid 1 1/2 times his wages
and dearness allowance over and above substituted holiday." 495 The
appellant urged before the tribunal that this direction needed to be clarified
because as it stood it was likely to impose on the appellant very heavy
financial burden. The tribunal held that the direction itself was very clear
and that under the guise of clarification the appellant was seeking its
modification. So the tribunal rejected the appellant's claim for any
clarification in that behalf.
In the present appeal the learned Attorney-
General attempted to argue that the accumulation of privilege leave up to 45
days allowed by the award was not justified. In our opinion, this argument
cannot be entertained in the present appeal for two reasons. First, no such
plea appears to have been made before the tribunal in the present clarification
proceedings and so the appellant cannot be allowed to raise a new plea now.
Besides, it is necessary to bear in mind the limitations of the enquiry
permitted under the proceedings contemplated by s. 36A of the Act. The said
section empowers the appropriate Government to refer any question to the
tribunal if the said Government is satisfied that any difficulty or doubt
arises as to the interpretation of any provision of an award made by the said
It further provides that when such a question
is referred to it the tribunal shall, after giving the parties an opportunity
of being heard, decide such question and its decision shall be final and
binding on all such parties. It is thus clear that the scope of the enquiry
under s. 36A is limited to the decision of the difficulties or doubts arising
as to the interpretation of any provision in the award. If the words used in
any provision of an award are ambiguous or obscure and it is not reasonably
possible to interpret them the difficulty arising from the use of such
ambiguous or obscure words may be resolved by moving the appropriate Government
to make a reference under s. 36A. It is obvious 496 that any question about the
propriety, correctness or validity of any provision of the award would be
outside the purview of the enquiry contemplated by the section. If a party to
the award is aggrieved by any of its provisions on the merits the only remedy
available to it is by making an appeal, say for instance under Art. 136 of the
Constitution, to this Court. A grievance felt by a party against any provision
of the award can be ventilated only in that way and not by adopting the
procedure prescribed by s. 36A. Thus, the enquiry permissible under s. 36A is
limited to the question of the interpretation of the provision of the award in
question and no more. That is why, we think, that even if the appellant had
sought to raise the question about the propriety of allowing the accumulation
of privilege leave up to 45 days before the tribunal, and even if such a
question had been referred by the State Government to the tribunal under s.
36A, the tribunal would have been justified if in refusing to consider it
because the point raised had nothing to do with the interpretation of the
provision but is concerned with its merits and its propriety.
Therefore, in our opinion, the appellant is
not entitled to raise this point before us in the present appeal.
The next contention raised by the appellant
is against the refusal of the tribunal to entertain its application for
clarification in regard to the provision for the payment to the worker 1 1/2
times his wages and dearness allowance over and above a substituted holiday if
he has to work on a weekly off or on a holiday (paid or unpaid). The grievance
of the appellant in substance is that in 1956 and 1957, on account of shortage
of electrical energy for industrial purposes the State Government compelled the
factories to change their weekly holidays from Sunday to some other week day,
each factory or group of factories observing one week day as weekly off.
According to the appellant, if a handful of workmen are to work on a weekly off
or on a 497 holiday when the whole factory is closed then there would be some
justification for making the payment to the workmen required to work on such a
day; but there would be no justification for making such payment where the
whole factory works on a weekly off or on a holiday. In support of this
contention the appellant relies on the observation made in the original award
that the basis for directing the additional payment for working on a weekly off
or on a holiday is that the workman is deprived of an opportunity to spend his
time in the company of his colleagues and refresh himself. It is urged that
when all his colleagues are working there is no point in saying that anyone is
deprived of an opportunity to spend his time in the company of his colleagues.
The tribunal was not impressed by this argument and so it has refused to make
any clarification-cum- modification in its award. It is significant that the
argument based on the orders issued by the State Government requiring the
factories to change their weekly holidays owing to shortage of electric energy
was not raised before the tribunal at the time when it originally heard the
dispute between the parties. It has stated in the present order that it looked
at its notes of arguments and noticed that no such plea was raised before it at
that time. Besides the tribunal has observed that having regard to the
definition of the word "week" under s. 2 (f) of the Factories Act as
well as the provisions of s. 52 of the said Act it would have been open to the
appellant to have another day of the week declared as the first day of the week
for its purposes. If the appellant had adopted such a course the difficulty on
which it relied would not have arisen.
The appellant contends that the reasons given
by the tribunal in rejecting its claim for clarification are not sound. We are
not impressed by this argument. As we have already pointed out, the present
argument ignores the limitations of the scope of the 498 enquiry under s. 36A.
It is clear that in substance the argument is that the direction issued by the
award in regard to the payment in question should be modified, and in support
of the claim for modification reliance is placed on the relevant orders issued
by the State Government for changing the weekly holidays. Such a claim cannot
obviously be entertained in clarification proceedings under s. 36A. A
proceeding contemplated by s. 36A is not a proceeding intended to enable the
tribunal to review or modify its own order; it is intended to enable the
tribunal only to clarify the provisions of its award where a difficulty or
doubt arises about the interpretation of the provisions. Quite clearly the
impugned provisions contained in paragraph 14 of the award in relation to this
demand are clear and unambiguous. Whatever may be the appellant's grievance in
respect of the validity or the propriety of the said directions there is no
difficulty or doubt about their meaning; and so we are satisfied that the
tribunal was right in refusing to alter the said direction in the present
The result is the appeal fails and is
dismissed with costs.