Full Judgment Text
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PETITIONER:
M/S. VOLTAS LTD.
Vs.
RESPONDENT:
J. M. DEMELLO & ANR.
DATE OF JUDGMENT21/07/1971
BENCH:
SHELAT, J.M.
BENCH:
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
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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
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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.
JUDGMENT:
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
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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
lineswith 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
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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:
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(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,
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(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
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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
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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
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(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
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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.
(1) [1964] 5 S. C. R. 64,
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879