K. Bhaskaran, J.
1. This writ petition is directed against Ext. P2 award dated 20.10.1974 passed by the second respondent the Industrial Tribunal, Calicut, on a reference under Section 10 of the Industrial Disputes Act, the dispute between the petitioner on the one hand and the first respondent on the other. The dispute referred to read as follows:
Whether civilian employees in the Society are entitled to be confirmed. If not what are all the benefits due to them from the management.
By the impugned award the second respondent held that the employees involved were entitled to be confirmed.
2. The petitioner is a Society registered under the Co-operative Societies Act and is engaged in the business of Bus Transport. The Society is governed by the Kerala Cooperative Societies Act and the Rules framed thereunder, and its own bye-laws which have been registered. It is averred that the Society has been formed mainly for the welfare of the Ex-Servicemen, and the membership of the Society is exclusively reserved for Ex-Servicemen and most of the employees of the Society are also Ex-Servicemen. In this connection it is stated that bye-law No. 5 provides that membership of the Society would be restricted to Ex-Servicemen and employment in the Society also would be restricted to Ex-Servicemen on permanent basis as per bye-law No. 41. Ext. P1 is stated to be the English translation of Bye-law No. 41 which reads as follows:
The Board of Directors shall employ only members for all the items of work to be turned out by the Society, provided that in exceptional cases they may, for want of technically qualified member, appointed one or more non-members to work in a department or departments until such time as a member is trained in the required standard of efficiency, or a technically qualified ex-soldier joins the Society as a member. Persons other than ex-servicemen shall be employed in the workshop only on a salary of wages basis and such person shall not be eligible to any of the privileges of membership.
The case of the employees represented by the first respondent-union was that they were in the employment of the petitioner-Society for about seven years, but they have not been made permanent and they are not given the full benefits which are being given to permanent employees. It is in this background that the Government, 3rd respondent, referred the matter to the second respondent-Tribunal for adjudication. Though the bye-laws of the petitioner-Society provided, inter alia, that the membership shall be open only to Ex-Servicemen and that permanent employment in the Society also shall be given only to members the Tribunal took the view that such conditions amounted to unfair labour practice and could not be upheld.
3. In this Court Sri V. Bhaskaran Nambiar, the counsel for the petitioner-Society, raised two-fold contentions : (1) in view of the provisions contained under Section 69 of the Kerala Co-operative Societies Act the jurisdiction to settle the dispute between the petitioner and the 1st respondent was exclusively within the dominion of the Registrar of Co-operative Societies and, therefore, the Industrial Tribunal had no jurisdiction in the matter. This question has now been settled by a Full Bench decision of this Court reported in Balachanrdan v. Dy. Registrar (1978) K.L.T. 249. This contention, therefore, is not available to the petitioner-Society now.
4. The second point urged by Sri Nambiar is that even assuming without conceding that the bye-laws of a co-operative Society may not have the force of a statute, the Supreme Court has held in Co-operative Central Bank Ltd. and Ors. v. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and Ors. A.I.R. 1970 245, that nevertheless in an industrial adjudication the Tribunal cannot altogether discard the terms of employment entered into between the employer and the employee. It is his contention that so long as the agreement between the employer and the employee does not amount to a violation of principles of social justice or it does not tend to impair industrial peace, the Industrial Tribunal cannot in a capricious manner decide the issue ignoring the terms of contract. In this connection he cited the decision in Western India Automobile Association v. The Industrial Tribunal, Bombay and Ors. A.I.R. 36 1949, Federal Court III. What has been stated at page 120 of that decision reads as follows:
Moreover, the relief is not of such an unusual character that it may be wholly ruled out as one of the legal reliefs which the Courts can grant. This relief of reinstatement is on the same footing as a relief of restitution. Restitution can be granted in integrum in certain cases. All that is required is that the ex-employee should be restored to his previous position so far as capacity, status and emoluments are concerned and there is nothing extraordinary in such restoration being ordered when considered necessary in the interests of peaceful settlement of industrial disputes. Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the Tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by these limitations. In volume I of 'Labour Disputed and Collective Bargaining' by Ludwing Teller, it is said at page 536 that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements. In our opinion, it is a true statement about the functions of an Industrial Tribunal in labour disputes.
This decision of the Federal Court has the approval of the Supreme Court as found in the decision in Bharat Bank Ltd. Delhi v. The Employees of the Bharat Bank Ltd., Delhi, and the Bharat Bank Employee's Union Delhi : (1950)NULLLLJ921SC ; Rohtas Industries Ltd. v. Brijmandan Pandey and Ors. : (1956)IILLJ444SC ; Patna Electric Supply Co., Ltd., Patna v. Patna Electric Supply Workers' Union : (1959)IILLJ366SC ; The New Maneck Chowk Spg. and Wvg. Co. Ltd. Ahmedabad and Ors. v. The Textile Labour Association Ahmedabad : (1961)ILLJ521SC ; and J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Labour Appellate Tribunal of India and Ors. 1963 II L.L.J. 436. Sri Nambiar in particular drew my attention to the following passage in Rohtas Industries Ltd. v. Brijmandan Pandey and Ors. : (1956)IILLJ444SC :
A Court of law proceeds on the footing that no power exists in the Courts to make contracts for people; and the parties must take their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice of victimisation. We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever.
In J.K. Iron & Steel Co. Ltd. Kanpur v. The Labour Appellate Tribunal of India, Calcutta and Ors. : (1956)ILLJ227SC at 238, in paragraph 42 what has been stated reads as follows:
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.
In paragraph 43 what has been stated reads as follows:
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 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.
In the New Manack Chowk Spg. & Wvg. Co. Ltd., Ahmedabad and Ors. v. The Textile Labour Association Ahmedabad, (supra) two questions arose for consideration; the first related to the jurisdiction of the Industrial Court to impose new obligations upon the parties and the second was whether if the Industrial Court has jurisdiction to impose new obligations it could do so in a matter of bonus as laid down by the decision of the Supreme Court. As far as the first question was concerned, the Court, on the reasoning given by the Federal Court in Western India Automobile Associations. The Industrial Tribunal, Bombay and Ors. A.I.R. 36 (1949) Federal Court III and the Supreme Court in Patna Electric Supply Co. v Patna Electric Supply Workers' Union, (supra) held that the Industrial Tribunal could impose new obligations on the employer in the interests of social justice and with the object of securing peace and harmony between the employer and his workmen and full co-operation between them. It also pointed out that, however, it did not mean that an Industrial Court could do anything and everything when dealing with an industrial dispute. That power was conditioned by the subject-matter with which it was dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the Legislature or by the Supreme Court. In J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. Labour Appellate Tribunal of India and Ors. 1963 II L.L.J. 436 at 444, Gajendragadkar, J., has observed as follows:
In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of Industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significances of the doctrine of social justice-vide Crown Aluminium Works v. Their Workmen 1958 I L.L.J. 1 and State of Mysore v. Workers of Gold Mines 1958 II L.L.J. 479. Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and it is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socio-economic equality and its aim is to assist the removal of socio economic disparities and inequalities, nevertheless in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, and adopts a realistic and pragmatic approach. It, therefore, endeavors to resolve the competing claims of employers and employees by finding a solution which is just and fail to both parties with the object of establishing harmoney between capital and labour, and good relationship. The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view that industrial disputes are settled by industrial adjudication on principles of fair-play and justice. That is the reason why on several occasions industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen who may not strictly fall within the purview of the Factories Act or the shops and commercial establishments Act.
The counsel also has referred to the decision reported in Bombay Labour Union and Anr. v. International Franchises (P) Ltd. and Anr. : (1966)ILLJ417SC and Raj Bahadur Diwan Badri Das v. The Industrial Tribunal, Punjab : (1962)IILLJ366SC . In the light of these decisions it has to be decided whether the second respondent-Tribunal has capriciously decided the question. What weighed with the Tribunal appears to be that for a period of seven years the employees concerned were working in the petitioner-Society without getting full advantages they would have been entitled to if they were treated as permanent employees. It may be that the petitioner-Society is interested in protecting its own interest. The counsel for the petitioner-Society has cited the decisions reported in Chandrakant v. Secy., Vidarbha Education Board : AIR1958Bom433 . P. Sugar and Ors. v. State of Andhra Pradesh. Surendrakumar and Ors. v. State of Rajasthan and Ors. A.I.R. 1969 Rajasthan 1827; Kushma Joshi and Anr. v. Pro-vice Chancellor, Jammu and Kashmir University and Ors. A.I.R. 1969 Jammu and Kashmir 136; D.N. Chanchala, etc. v. The State of Mysore and Ors. : AIR1971SC1762 ; Daya Ram and Ors. v. State of Haryana A.I.R. 1974 Punjab and Haryana 279; and Jagdish Rai and Ors. v. State of Haryana and Ors. A.I.R. 1977 Punjab and Haryana 56, in support of his contention that special reservations for the benefit of Ex-Servicemen could be made. No doubt, it is open to the Government to show certain considerations in the matter of appointment towards Ex-servicemen. Thai does not mean that a Society started by the Ex-servicemen could treat its employees as casual or temporary labourers for ever. Such practice is not conducive for the promotion of industrial relationship or to promote the concept of social justice. It would create unnecessary heart-burning and discontentment in the minds of the employees concerned. As the Supreme Court has laid down, the question as to how much of the bye-laws or terms of agreement could be upheld and how much rejected, has to be decided on its own fact in each case. In this connection I am not satisfied that the argument of the counsel for the petitioner that in the instant case there was no impairment of the industrial relationship caused by keeping the employees concerned as a separate category of temporary workers. As far as the question whether all temporary employees are to be treated as permanent is concerned, that does not arise in this case. We are in this case, concerned only with the claims of the employees affected in this case. As has rightly been pointed out by Sri Nambiar, no hard and fast rule can be fixed on that question; it has to be judged on the merits of the case.
5. For the foregoing reasons I find no scope for interference by this Court under Article 226 of the Constitution with the award that has been passed by the second respondent Tribunal. In this view the writ petition fails, and is dismissed, however, in the circumstances of the case, without any order as to costs.