M/S. Voltas Ltd. Vs. J. M. Demello
& ANR [1971] INSC 161 (21 July 1971)
SHELAT, J.M.
SHELAT, J.M.
RAY, A.N.
CITATION: 1971 AIR 1902 1971 SCR 865 1971 SCC
(2) 479
ACT:
Industrial Disputes Act, 1947, ss.
33C(2)-Labour Court as executing court whether can go into history of dispute
in order to construe scope of award.
Constitution of India, Art. 226-High Courts
cannot interfere when order of labour court under s. 33C(2) of Industrial Disputes
Act, 1947 is within its jurisdiction and does not suffer from any apparent
error.
HEADNOTE:
Respondent No. I joined the service of M/s.
Volkhart Bros. on March 3, 1930. On the merger of that concern with the
appellant-company in September.1954, he became the employee of the latter. In
September 1954, the appellant- company took over the staff 'of M / s. Volkhart
Bros. on the same terms and conditions as were applicable to them when they
were the employees of Volkhart Bros. During the period when respondent I was in
the employment of M/s. Volkhart Bros.
he was governed by a scheme of dearness
allowance framed with the consent of the parties and incorporated in the
Bakhale Award dated May 26, 1951. The scheme provided both maximum and minimum
dearness allowance viz. Rs. 165 and Rs. 60 respectively, and subject to them
the dearness allowance payable was 75% for the first hundred, 37-1/2% for the
second hundred and 18% for the balance of the wages. By a circular dated
November 16, 1953 the maximum dearness allowance payable was increased to Rs.
300. On August 18, 1956 a charter of demands was served on the company on behalf
of the workmen. Demand No. 5 was for revision of the scheme of dearness
allowance. The parties arrived at a settlement dated August 30, 1957 under
which the company agreed to pay dearness allowance at increased rates, the
minimum being raised to Rs. 75. There was no reference as to the maximum either
in demand No. 5 or in the settlement.
According to the company the maximum was
raised from Rs. 300 to Rs. 350 by a circular dated March 12, 1959. On January
16, 1961, the union served the company with a fresh charter of demands, demand
No. 9 whereof related to dearness allowance. Higher rates were demanded but
there was no reference to a maximum. The charter of demands was referred to the
tribunal presided over by Mr. Meher whose award dated February 18, 1963 made
certain changes in the scheme without referring to a maximum. On December 17,
1964 respondent No. 1 filed an application to the Labour Court under s. 33C(2)
for computing, the benefit due to him in respect of dearness allowance payable
to him. His claim for dearness allowance of more than Rs. 350 was resisted by-
the company on the ground that was the maximum fixed under the earlier scheme
which continued to subsist since the Meher Award had not made any change in
this respect. The Labour Court after going into the full history of the matter,
since the Bakhale Award, decided that the company was right in limiting the
dearness allowance to Rs. 350. The High Court in a writ petition filed by
respondent No. I held that Labour Court fell into a gross error in examining
the Pre- vious history as to the dearness allowance which was irrelevant. It
directed the Labour Court to compute the dearness allowance without any
reference to the maximum. In the company's appeal by special leave, 55-1
S.C.India/71 866
HELD: Proceedings under s. 33(2) are
analogous to execution proceedings and a Labour Court called upon to compute
benefits claimed by a workman is in the position of an executing court and as
such competent to interpret an award Where( there is a dispute as to the rights
thereunder or as to its correct interpretation. Although it cannot go behind
the award, it is nevertheless competent to construe the award where it is
ambiguous and to ascertain its precise meaning, for unless that is done, it
cannot enforce the award when it is called upon to do so by an application
under s. 33C. [874A-C] Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar,
[1968] 1 S.C.R. 140, Central Bank of India v. Rajagopalan, [1964] 3 S.C.R. 140,
152 and Bombay Gas Co.Ltd. v. Gopal Bhiva, [1964] 3 S.C.R. '709, 715716,
referred to.
In the present case the Labour Court had and
was competent to decide the question whether there was a ceiling in the
existing scheme, and if so, whether it was deleted by the Tribunal, in other
words, whether the demand was for doing away with the existing scheme and
substituting it by a fresh scheme which had no ceiling. For that purpose, the
Labour Court had necessarily to examine demand No. 9, the reference, the
pleadings of the parties, and lastly; the Meher Award, and incidental to such
an inquiry it had to examine the question whether there was a ceiling in the
scheme existing at the time of that demand and 'reference.
In doing so the Labour Court had to examine
the various stages the dearness allowance scheme had from time to time gone
through. [876H] Ramakrishna Ramnath v. Presiding Officer, Labour Court, Nagpur,
[1970] 2 L.L.J. 306, referred to.
[The Court examined the facts and found the
Labour Court's conclusions justified on merits. It then went on to hold:] If
from the evidence before it the Labour Court came to the conclusion that a
ceiling existed in the scheme of dearness allowance prevailing in the company
at all the various stages and that deletion of such a ceiling was not the
subject matter of either demand No. 9 or of the reference before the Meher
Tribunal, and that its award was confined to the revision only of the existing
scheme in respect of certain matters, it was not possible to say that the
decision of the Labour Court suffered from any error apparent on the face of
its decision in respect of which a certiorari could justifiably be issued under
Art. 226.
There was no question of any estoppel also
against the company against its raising the question of the ceiling in view of
the finding of the Labour Court that the question of the ceiling was not the
subject-matter of the reference before the Meher Tribunal. Such a conclusion of
the Labour Court could not be interfered with by the High Court on any one of
the well known grounds on which only such interference is permissible. [878A]
The appeal must accordingly be allowed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 478 of 1970.
Appeal by special leave from the judgment and
order dated June 30, 1969 of the Bombay High Court in Special Civil Application
No. 889 of 1966.
867 S. V. Gupte, A. K. Verma and J. B.
Dadachanji, for the appellant.
V. M. Tarkunde, D. V. Patel, K. L. Hathi and
P. C. Kapoor, for respondent No. 1.
The Judgment of the Court was delivered by
Shelat, J.-This appeal, by special leave, is against the judgment of the High
Court of Bombay allowing the writ petition filed by respondent I against the
dismissal by the Labour Court of his application for dearness allowance made
against the appellant-company under s. 33C(2) of the Industrial Disputes Act,
1947.
The facts leading to the said application are
as follows:- Respondent I first joined the service of M/s. Volkart Bros.
on March 3, 1930. On merger of that concern
with the appellant company in September 1954, he became the employee of the
latter. In September 1954, the appellant-company took over the staff of M/s.
Volkart Bros. on the same terms and conditions as were applicable to them when
they were the employees of Volkart Bros. During the period when respondent I
was in the employment of M/s. Volkart Bros., he was governed by a scheme of
Dearness Allowance framed with the consent of the parties and incorporated in
an award (hereinafter referred to as the Bakhale Award) dated May 26, 1951 in
I.T. No. 76 of 1950. The scheme provided both maximum and minimum dearness
allowance, viz., Rs. 165 and Rs. 60 respectively, and subject to them the
dearness allowance payable was 75% for the first hundred, 37-1/2% for the
second hundred and 18% for the balance of the wages.
The said scheme was altered by a circular,
dated November 16, 1953. The two principal changes in the altered scheme were:
(1) an increase in the minimum and maximum
from Rs. 60 and Rs. 165 to Rs. 70 and Rs. 300 per month respectively, and (2)
linking the dearness allowance to the cost of living index in the bracket
371-380 and providing for adjustment of dearness allowance by certain
percentages whenever the index moved by ten points.
On August 18, 1956, a charter of demands was
served on the company on behalf of the workmen. Demand No. 5 related to
dearness allowance and was as follows:
"The scheme of dearness allowance at
present in force should be revised on the following lines with effect from 1st
January, 1956." 868 Then followed the lines on which the scheme was sought
to be revised namely, the percentages at which the dearness allowance should be
paid. The parties arrived at a settlement dated August 30, 1957, under which
the company agreed to pay dearness allowance at 100% on the first hundred with
4% on every ten points' movement in the index, 50 % on the second hundred with
29% on every ten points' movement in the index and 25% for the balance with on
every ten points' movement in the index of cost of living. The minimum dearness
allowance was raised to Rs. 75.
It may be noted that there was no reference
as to the maxi- mum either in demand No. 5 or in the settlement. The case of
respondent I was that the scheme of dearness allowance as prevalent till then
was abandoned, a fresh scheme was devised in which there was no provision for
any maximum and it was, therefore, that no reference to any such maximum was
made in the settlement. The company's case, on the other hand, was that the
scheme of dearness allowance was not given up, that the demand was only for
revision of the existing scheme, viz., to the extent of revising the
percentages only on the three slabs of wages, and therefore, the settlement
mentioned the alterations made in, the scheme, but not the maximum as there was
neither a demand for its deletion, and consequently, no settlement regarding
it.
According to the company, the maximum was
raised front Rs. 300 to Rs. 350 by a circular, dated March 12, 1959. That
circular was as follows "It has been decided to raise the present maximum
Dearness Allowance payable to Rs. 350 per month which will apply uniformly to
all Offices in India with effect from 1st April 1959.
Dearness Allowance will continue to be paid
on the usual basis at the rates applicable at each place subject to the maximum
stated above.
* * * * *" The case, however, of
respondent I was that the increase in the maximum amount of dearness allowance
applied only to the officers of the company and not to the workmen, that no notice,
of such a change was ever served upon the union, and that there. was in fact no
change made in 1959 in the scheme of dearness allowance, which remained without
any provision as to.-the maximum.
869 On January 16. 196 1, the union served
the company with a fresh charter of demands, demand No. 9 whereof related to
dearness allowance. That demand was in the following words:
"The scheme of Dearness Allowance at
present in force should be revised on the following lines with effect from 1st
October 1960:- When the index is in the bracket 351-360, for the 1st Rs. 100 of
the basic pay / wages ....................... 100% variation 5 % for the 2nd
Rs. 100 of the basic pay/wages, ..........................50% variation 2-1/2 %
for the balance .....................25 %;
variation 1-1/2% Minimum Rs. 90; variation
Rs. 3." The charter of demands was referred to the tribunal presided over
by Mr. Meher who gave his award (hereinafter referred to as the Meher Award),
dated February 18, 1963. Paras 33 to 35 of the award dealt with dearness
allowance. Para 33 first set out the union complaint that "the existing
dearness allowance scheme" did not adequately neutralise the rise in the
cost of living. It then set out the existing scheme as follows:
"For the index number 371-380 Basic wage
Dearness Variation for allowance 10 points For the first 100
..................100% 4% For the second 100 .................50% 2% For the
balance .................25% 1% Minimum dearness allowance Rs. 75; variation
for 10 points Rs. 2." Para 34 set out the company's defence. Para 35 set
out the changes made by the award in the following terms :
"I revise the existing scheme of
dearness allowance as follows The variation for the first slab should be 5 per
cent, for the second 2-1\2 per cent, and the third 1-1\4 per cent, and 870 on
the minimum dearness allowance Rs.3. The minimum dearness allowance at cost of
living ,index 371-380 should be increased from Rs.75 to Rs. 77. The dearness
allowance should be revised at this rate,from 1st June1969......" On
December 17, 1964, respondent II filed a application to the Labour Court under
s. 33, C(2) for computing the benefit due to him in respect of dearness
allowance payable to him under the Meher Award and claimed that the dearness
allowance due to him was Rs. 360 for June-July, 1964, Rs 382.50P for August
1964, Rs. 393.75P. for September, 1964 and Rs. 405 for November 1964 in
accordance with the index cost of living declared by the Maharashtra,
Government on the recommendations made by the Lakdawala committee. His plea was
that the company was not entitled to limit the dearness allowance due to him at
Rs. 365 per month on the plea that the existing dearness scheme as revised by
the Meher Award provided for the maximum at Rs. 365 per month and that he was,therefore,
entitled to that amount only.
The claim of respondent I was denied by the
company. The company's case was that under the scheme of dearness allowance
prevailing in the company there had always been a maximum ever since the
Bakhale Award, that the maximum was raised from time to time and since April
1,1959 it had been Rs. 350 per month. Its case further that the maximum was not
in any way affected by the Meher Award, that the charter of demands which
occasioned that Reference claimed revision of the existing dearness allowance
scheme on certain points only, namely, a revision in the percentage variations
and all increase in the minimum from Rs. 75 to Rs. 90, and that therefore, the
rest of the scheme including its provision for the maximum of Rs' 350 per month
remained intact. The company's case was that since the demand and the reference
were limited to the percentage variations only, the Meher Tribunal could not
have made any other changes, such as the decision of the maximum, for such a
change would have been beyond its jurisdiction.
The question, thus, before the Labour Court
was: what exact- ly did the Meher "Award decide in relation to the
question of dearness allowance? There can be no doubt that there was an acute
controversy,between the parties:
(1)as to whether there was or not any
provision for the Maximum in the scheme prevailing before, the Meher Award,
(2)if there was, whether, that Award only revised it in terms of para 35
thereof or whether it introduced 871 altogether a fresh scheme which had a
provision for the minimum but not for the maximum.
In dealing with these questions, the Labour
Court, in an elaborate judgment, went into the history of the dearness
allowance scheme prevailing in the company ever since the Bakhale Award on the
basis of the evidence led by both the parties and ultimately held that a
maximum was always provided for in the said scheme, that the scheme which was
prevailing immediately before the Meher Award contained a provision for such,
maximum, viz., Rs. 350, that the Meher Award was concerned only with the
percentage variations and the increase in the minimum existing till then and as
neither the demand nor the reference was concerned with the maximum, the award
did not and indeed could not deal with it and therefore left it untouched. In
the result, the Labour Court dismissed the application holding that the company
was right in paying dearness allowance at Rs. 350 per month to respondent 1.
Respondent 1, thereupon, filed a writ
petition in the High Court contending:
(1) that the Labour Court, as an executing
court, had merely to implement the Meher Award which had fixed no maximum-,
that it exceeded its jurisdiction when it considered the previous stages of the
scheme of dearness allowance and the background for holding that the award had
not dealt with or interfered with the existing maximum;
(2) that as regards the workmen, no maximum
dearness allowance had been prevalent at the time of the charter of demands
dated January 16,1961, that demand No. 9 therein was for the entire revision of
the scheme which was then prevalent in the company and.. that the Meher
Tribunal made its award providing therein an altogether new scheme.
The company, on the other hand, contended
that the Labour Court bad jurisdication, when called upon to compute the
benefits under the award; to interpret that award in order to ascertain what it
had done and the benefits it had conferred. In doing so, if it came to findings
of fact, those findings could not be interfered with by the High Court under
its writ jurisdiction. It also submitted that in any event on a true
construction of the award read with demand No. 9, the reference and the
pleadings of the parties, the conclusion of the Labour Court that the Meher
award did not deal or 'interfere with the existing maximum was correct.
872 In considering these rival contentions
the High Court first set out the five stages of development which had occurred
in the history of the company in the matter of dearness allowance and 'which
had been considered by the Labour Court, viz., (1) the Bakhale Award, dated May
26,1951, the features whereof were:
(i) a provision for the maximum and the
minium, (ii) percentages of neutralisation on three slabs in the wages ;
(2) the circular of November 16, 1953 by which
dearness allowance was linked with the index of cost of living, the basic
bracket of which was 371-380, the adjustment of the dearness allowance on the
movement of the index by 10 points, and the maximum raised to Rs. 300 per
month;
(3) the charter of demands dated 18-8-1956
and the agreement, dated August 13, 1957 by which the existing scheme was
revised and the minimum and the percentages of variations were revised;
(4) the circular, dated March 12, 1959, by
which the maximum was again raised from Rs. 300 to Rs. 350 and which inter alia
stated:
(1) that the increase would apply uniformly
"to all offices in India", and (ii) that dearness allowance
"will continue to be paid on usual basis at the rates applicable at each
place subject to the maximum stated above." and (5) the charter of demands
and in particular demand No. 9 and the Meher Award.
The High Court then observed that the charter
of demands, the Reference to the Tribunal of Demand No. 9 and the pleadings
before the Tribunal did not refer to any existing maximum and that according to
the award the existing scheme of dearness allowance was that which the Tribunal
set out in para 33 of its award, i.e., without any maximum being there
mentioned and that it was such a scheme which the award revised. Relying on the
absence of any reference to any maximum, the High Court negatived the company's
contention that the demand was for alteration of the existing scheme only. That
being so, the company, according to the High Court, ought to have brought forward
as its defence case that there was an existing maximum. which should be
retained in the scheme, and not having done so, the company "must 873 be
held to be estopped now from contending that this matter had not arisen before
the Tribunal and had accordingly not been decided." The High Court also
rejected the company's plea that a demand for revision of the scheme meant not
its total abolition ,.and substitution of another scheme in its place and held
that 'Such a demand would ordinarily mean that the scheme in its ,entirety was
to be replaced by another scheme and that *hat the ;award in fact had done was
to frame "a complete and entire scheme". The High Court thought that
to accept the company's plea that the existing maximum was not touched upon by.
the award meant reading a proviso in the award that the maximum dearness
allowance payable to a workman was Rs. 350 per month, a construction not
permissible in the absence of reference to such a maxim um in the award. The
High Court also held that the award had "to be construed without reference
to the previous history and facts on which the Labour Court relied", that
it was not permissible for the Labour Court to rely on such facts, and that
even if it was so permissible it would have come to the same conclusion, viz.,
that the scheme was not qualified by any maximum. On. this reasoning the High
Court set aside the Labour Court's order basing its interference With that
order on the ground that the Labour Court fell.into a gross error in examining
the previous history as to the dearness allowance, which was irrelevant,
thereby deciding the matter in a manner "Which was altogether erroneous
and unjustified, and directed the Labour Court to compute the dearness
allowance without any reference to the maximum.
These conclusions were seriously challenged
before us. The contention was that the Labour Court in dismissing the
application acted within its jurisdiction, and that there was no error apparent
in. its decision justifying the issuance of certiorari. On the other hand Mr.
Tarkunde supported the High Court's order arguing, firstly, that the Labour
Court as an executing court under sec. 33C(2) could not consider facts anterior
to the reference to the Meher Tribunal for the purpose of interpreting that
award, secondly, that on the construction of that award, as well as the
'pleadings of the parties before that Tribunal and demand No. 9, the Labour
Court was in error in holding that a ceiling of Rs. 350 subsisted, and thirdly,
that even If the Labour Court, could enter into such anterior facts, its
construction of the Meher award was patently wrong.
The question as the scope of jurisdiction of
a Labour Court under sec. 33C(2) has been a subject-matter of several decisions
of this Court. It is not necessary to go into those decisions once again as in
the Chief Mining Engineer, East India Coal Co. Ltd., 874 v. Rameshwar(1) all
those decisions were examined and the propositions deducible from them were
formulated. As stated in propositions (5) and (8), proceedings under sec.
33C(2) are analogous to execution proceedings and a Labour Court called upon to
compute benefits claimed by a workmen is in the position of an executing court
and as such competent to interpret an award where there is a dispute as to the
rights thereunder or as to its correct interpretation. Obviously, if the award
is unambiguous, the Labour Court is bound to enforce it, and under the guise
of' interpreting it, it cannot make a new award by adding to or substracting
anything therefrom. Although it cannot go behind the award, it is nevertheless
competent to construe the award where it is ambiguous and to ascertain its
precise meaning, for, unless that is done, it cannot enforce the award when it
is called upon to do so by an application under Sec. 33C. As held in The
Central Bank of India v. Rajagopalan(2), a claim under Sec. 33C (2) postulates
that the determination of the question about computing in terms of money may in
some cases have to be preceded by an inquiry into the existence of the right.
Such an inquiry is incidental to the main determination assigned to the Labour
Court by that sub- section. While inquiring into the question as to the
existence of such a right, and construing the award, the Labour Court can look
into the demand by the workmen in order to ascertain whether the award under
which the right is claimed was, or was not beyond the scope of the demand;
in other words, whether the award was within
jurisdiction.
(cf. also Bombay Gas Co. Ltd. v.
Gopal-Bhiva(3).) This position was conceded by Mr. Tarkunde.
Demand No. 9, which related to dearness
allowance, was that "the scheme of dearness allowance at present in force
should be revised on the following lines......... The lines for revision were,
firstly, as to the basic bracket in the index of cost of living, i.e., 351-360
instead of 371-380, secondly, as to the percentages of variation, and thirdly,
as to the raising of the minimum dearness allowance from Rs. 75 to Rs. 90. An
argument was raised. both before the High Court and repeated before us, which
emphasised the word 'revise' in the demand for dearness allowance% as against
the word 'abolish' in demand No. 2 which was concerned with grades and wage
scales. We may not give any undue, importance to the use of such, a different
phraseology in the two, demands, for, such demands cannot be expected to have
been drafted with meticulous care as to the precise meaning of each, of the
words therein. But there is no gain-saying that demand, (2) [1964] 3 S. C. R.
140,152.
(1) [1968] 1 S. C. R. 140.
(3) [1964] 3 S. C. R. 709, 715-716.
875 No. 9 did postulate that there was a
dearness allowance scheme existing in the company when those demands were
served on the company and the workmen felt that it did not adequately
neutralise the rise in the cost of living, and therefore, the scheme should be
revised as regards the basic bracket, the percentages of variation and the
minimum dearness allowance payable under that scheme. This is evident from the
contentions of the parties before the Meher Tribunal which noted them by
stating that whereas the workmen contended that "the existing dearness
allowance scheme" did not adequately neutralise the rise in the cost of
living, the company's contention was that "the existing scale is
fair", but that the company showed its willingness to "revise"
the scheme by accepting the percentages of variation suggested by the workmen
provided they did not press their demand for revision of wage scales. It is
clear from the award also that that tribunal, in the light of these rival contentions,
held that "some revision in the dearness allowance scheme is
necessary", and revised it by directing that the percentages in the
variation should be 5% for the first slab, 21% for the second and 1-1/2% for
the balance and 3% on the minimum dearness allowance. It raised the minimum
from Rs. 75 to Rs. 77, but declined to revise the basic bracket in the index of
cost of living from the existing 371-380 to 351-360 demanded by the workmen.
There can, therefore, be no doubt whatsoever
that there was an existing scheme of dearness allowance, that workmen felt that
it was not satisfactory and wanted its revision in certain particulars, viz.,
in the percentages of variation, the basic bracket and the amount of the
minimum. In paras 145 to 147 of its statement of claim before the Meher
Tribunal, the union set out "the existing scheme for dearness
allowance", the demand for a revision, viz., in the basic bracket, in the
percentages of variation and the minimum, and claimed that "the existing
dearness allowance scheme" failed to meet its object of neutralising the
rise in the cost of living, and also claimed, by citing dearness allowance paid
by other companies, that the dearness allowance paid by the company was the
lowest. In para 125 of its written statement, the company, on the other hand,
pleaded that the existing scheme was fair, having regard to the scales of pay,
allowances and other terms and conditions, and said that it was agreeable to
have a revised scheme set out therein if the workmen did not press for revising
the wage scales. In the revised scheme suggested by it, it adopted the
variation percentages demanded by the workmen, but insisted that the minimum
should remain the same, viz., Rs. 75. No doubt. neither the statement of claim
by the union, nor the written statement of the company referred to the maximum
and clearly for that reason the Tribunal also in its award did not refer to it
and concerned itself with the contentions of the parties, (1) as 876 to the
basic bracket, (2) the percentages of variation and (3) increase in the
minimum.
The principal controversy between the
parties, as is clear from the opening paragraphs of the judgment of the Labour
Court, was whether the scheme of dearness allowance, as revised by the
Tribunal, contained the ceiling. As already stated, the case of respondent I
was that he was entitled to the dearness allowance as set out in his
application, that under the award there was no ceiling and that by paying Rs.
350 per month., the company withheld from him
the benefit accruing to him under the award. The company, on the other hand,
alleged that though the award revised the scheme of dearness allowance as
prevailing in the company, it did not affect the existing ceiling of Rs. 350,
and therefore, there was no question of respondent 1 being deprived of any
benefit due to him under the award. Thus, the controversy between the parties
before the, Labour Court was whether there was a ceiling in the existing
scheme, and if so, whether the Meher award did away with that ceiling.
The award, of-course, could not do away with
such a ceiling, if it was there, unless demand No. 9 and the Reference to the
Meher Tribunal based on that demand contained anything which required its
deletion, or the demand was for a new scheme of dearness allowance altogether
and not merely for a revision of the existing scheme. It is true that neither
demand No. 9 nor the Reference, nor the company's written statement before the
Tribunal expressly mentioned the ceiling of Rs. 350 per month. But the company's
case before the Labour Court clearly was that there did exist in the prevailing
scheme such a ceiling, that it was not mentioned in its reply before the
Tribunal because demand No. 9 raised no controversy about it, nor did it Call
upon the Tribunal to delete it and that the controversy between the parties in
that Reference related only to the question as to the basic bracket,
percentages of variation and the increase in the minimum.
Upon such a case being before the Labour
Court, that court had to and was competent to decide the question whether there
was a ceiling in the existing scheme, and if% so, whether it was deleted by
the, Tribunal, in other words, whether the demand was for doing away with the
existing scheme and substituting it by a fresh scheme which had no ceiling. For
that purpose, the Labour Court had necessarily to examine demand No. 9, the
Reference, the pleadings of the parties, and lastly the Meher Award, and
incidental to such an inquiry it had to examine the question whether there was
a ceiling in the scheme existing at the time of that demand and reference. (See
in this connection Ramakrishna Ramanath v. The Presiding Officer. Labour Court,
877 Nagpur(1) In doing so, the Labour Court had to examine the various stages
the dearness allowance scheme had from time to time gone through.
Admittedly, the Bakhale award did contain the
maximum. That scheme was revised by the circular, dated November 16, 1953, by
which the dearness allowance was linked with the cost- of living and the
maximum was raised from Rs. 165 to Rs. 300.
That award was terminated and a fresh demand
in respect of dearness allowance was made on August 18, 1956. The demand was
that the scheme of dearness allowance "at present in force should be
revised on the following lines........ The demand resulted in the settlement,
dated August 30, 1957.
Neither the demand nor the settlement
contained any reference to the maximum' of Rs. 300 although it did exist in the
existing scheme. The case of respondent I was that the said settlement did away
with such a maximum and that from 1957 onwards there was no ceiling at all.
This case was seriously controverted by the company which produced before the
Labour Court the circular, dated March 12, 1959, by which it said that the
maximum was raised from Rs. 300 to Rs. 350 with effect from April 1, 1959. The
case of respondent 1 with regard to this contention of the company was (1) that
no such circular was issued, at least to the knowledge of the union, and (2)
that even if it was issued, it was confined to the officers of the company and
did not apply to workmen. The Labour Court held that the circular was issued
and that its interpretation by respondent 1 that it applied to officers alone
was not correct. The circular was issued to "all officers" of the
company. It applied to all the employees of the company as is evident from its
para 2 which stated as follows:
"Dearness allowance will continue to be
paid an usual basis at the rates applicable at each place subject to the
maximum stated above." It also stated that it superseded all other
previous circulars. If this circular was issued, as the Labour Court held it
was, there can be no doubt that (1) there was a ceiling in the scheme prevalent
at that time, (2) that it was raised to Rs. 350 and (3) that it applied to all
the employees and not merely to the, officers. The Labour Court also accepted
the company's case that the circular was notified on the notice board of the
company and that amounted to anotice of a change under sec. 9A of the Industrial
Disputes Act.In any event, the change did not adversely affect the workmen.Nor
was the question as to its validity before the Labour Court,which used the
circular as evidence of a ceiling existing in the scheme right from the time of
the Bakhale award.
(1) (1970) 2 L. L. S. 306.
878 If from all this evidence before it the
Labour Court came to the conclusion that a ceiling existed in the scheme of
dearness allowance prevailing in the company at all the various stages and that
deletion of such a ceiling was not the subject-matter of either demand No. 9 or
of the reference before the Meher Tribunal, and that its award was confined to
the revision only of the existing scheme in the three matters earlier referred
to, it is not possible to say that the decision of the Labour Court suffered
from an error apparent on the face of its decision in respect of which a
certiorari can justifiably be issued under Art. 226. The confines of
jurisdiction under Art. 226 have been settled by a series of decisions of this
Court, from among which we need mention only the case of Syed Yakoob v. K. S. Radhakrishnan(1).
There was no question of any estoppel also against the company against its
raising the question of the ceiling in view of the-finding by the Labour Court
that the question of the ceiling was not the subject-matter of the reference
before the Meher Tribunal. Such a conclusion of the Labour Court could not be
interfered with. by the High Court on any one of the well-known grounds on
which only such interference is permissible.
The High Court, therefore, was not justified
in interfering with the Labour Court's order under its writ jurisdiction.
The appeal has, therefore, to be allowed, and
the writ petition of respondent I dismissed. In the circumstances of the case,
however, we think it just that there should be no order as to costs.
G.C. Appeal allowed.
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