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Caltex (India) Ltd. Vs. Industrial Tribunal No. 2 and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1961)ILLJ85Ker
AppellantCaltex (India) Ltd.
Respondentindustrial Tribunal No. 2 and ors.
Cases ReferredCotton and Silk Mills Co. Ltd. v. State of Mysore
Excerpt:
.....drivers, cleaners, barge crew, etc. subject to the provisions regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under the other provisions of the act like sub-section (1). thus it is dear that there is difference between the enforceability of the award and the coming into operation of the same. the learned advocate of the union as well as the learned government pleader support the award by contending that the tribunal has such power under section 10(4) of the act. the contention of the learned advocate of the union and the learned government pleader is that, in view of the wording of issue 17..........shall not require or allow a worker to work for more than 48 hours in a week and in case any worker works in a factory for more than 48 hours in a week, section 69 of the act lays down that he shall be paid in respect of the overtime work at the rate of twice his ordinary rate of wages. therefore overtime allowance at double rate can be claimed only if the worker works for more than 48 hours in a week. it may be that the company has now agreed to a lesser number of hours per week; it may also be that the tribunal has fixed the number of hours of work for saturdays at five. but it is doubt' ful whether the tribunal is justified in the circumstances of this case in allowing overtime allowance at double the ordinary rate of wages for work below the statutory period allowed by the.....
Judgment:

T.C. Raghavan, J.

1. This is an appeal by Caltex (India), Ltd., Cochin Terminal, Ernakulam, to reverse the order of a learned single Judge of this Court dismissing O.P. No. 489 of 1957. The respondents in the appeal are the industrial Tribunal No. 2, Ernakulam, the workmen of the appellant-company represented by the President, Petroleum Workers' Union, Ernakulam, and the State of Kerala represented by the Secretary, Labour and Local Administration Department.

2. The respondent 2 union made a charter of demands containing 17 heads on 10 September 1955 on the appellant-company and as a consequence of this an industrial dispute arose between the workers and the management of the appellant-company. There was a reference of this dispute on 31 August 1956 to the respondent 1 tribunal, by the appropriate Government, the respondent 3 before us. The tribunal passed an award on 12 October 1957, which was duly published in the Gazette dated 5 November 1957 and became enforceable on 5 December of the same year. Several of the heads of disputes were settled between the parties and only those heads covered by issues 6, 7, 13 and 17 remained without settlement at the time of the filing of the writ petition, out of which the present appeal arises. The applicant company filed O.P. No. 489 of 1957 seeking to quash that portion of the award covered by the said four issues. Since the filing of the writ petition the parties had compromised their differences further and filed an agreement dated 30 January 1958 into Court, the only disputes remaining further to be investigated in the writ petition being the disputes covered by issues 7 and 17. Since the dispute in the appeal centres round these two issues we would extract them below:

Issue 7.-Should work on Saturdays be limited to five hours between 8 a.m. and 1 p.m.?

Issue 17.-should the benefits awarded take effect from 1 January 1953?

Incidentally reference will have to be made to issue 6 also which reads:

issue 6.-What should be the rate of overtime allowance for workmen not covered by the Factories Act

The tribunal answered issue 6 as follows:

All monthly paid workmen like spays, tallymen, drivers, cleaners, barge crew, etc., whether covered by Factories Act or not covered by Factories Act:

Sundays--For work between 8 a.m. and 5 p.m.--One compensatory day off only; no cash payment.

On week days--Does not arise as the workmen are on eight-hour shifts.

Saturday afternoon--Three hours' overtime at the rate of double basic wages only.

Sundays--Compensatory off only; no cash overtime allowance.

Festival holidays--Double basic wages only.

On issue 7 the tribunal held that, since in almost all the industrial concerns in and around Ernakulam Saturday afternoon being a holiday, in conformity with such practice obtaining in other industrial institutions, there would be no work in the appellant-company also from 1 p.m. on Saturdays. Coming to issue 17, the tribunal gave retrospective effect to the award from 10 October 1955; that being the date of the demand made by the union. Under this issue the tribunal directed that the arrears in basis wages, duty and overtime allowances and allowance for Saturday afternoon work at overtime rates would be calculated from 10 October 1955. As we have already observed, the dispute before the learned single Judge was only regarding the retrospective operation of the award covered by issue 17 in relation to the point covered by issue 7. The learned Judge dismissed the writ petition holding that there was no question of want of jurisdiction when the tribunal gave retrospective effect, for, issue 17 had left that question of retrospectively to the tribunal's decision. The appellant-company questions the correctness of this decision in the present appeal.

3. At the outset we would point out that the only issue which makes any reference to overtime allowance is issue 6 and that relates only to workmen not covered by the Factories Act. Obviously the tribunal has gone wrong in making its award on this point applicable to workmen covered by the Factories Act also. We are told at the bar by the learned Counsel of the appellant-company that at the time of the award 73 out of 95 workmen were covered by the Factories Act and this is not disputed by the learned advocate of the union. An attempt has been made at the time of arguments by the learned advocate of the union and the learned Government Pleader to support the award of the tribunal on issue 17 in relation to issue 7 by a reference to issue 6 as issue 6 relates to overtime allowance. We are of the opinion that issue 6 is not capable of thus being pressed into service to support the award of compensation for overtime work under issue 7. A mere reading of issues 6 and 7 will make our meaning clear and therefore we proceed to consider issues 7 and 17 independently of issue 6.

4. The first contention raised by the learned Counsel of the appellant-company is that the tribunal has no jurisdiction to give retrospective operation to its award. Put in such general terms, we are afraid, the proposition is not acceptable. There is clear indication in the industrial Disputes Act that the tribunal has jurisdiction to pass an award retrospectively in certain oases. Section 17A(1) lays down that an award shall become enforceable on the expiry of thirty days from the date of its publication and Sub-section (4) of the same section enacts that; subject to the provisions regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under the other provisions of the Act like Sub-section (1). Thus it is dear that there is difference between the enforceability of the award and the coming into operation of the same. The award becomes enforceable on the expiry of thirty days from the date of its publication, whereas it comes into operation with effect from any date as may be specified in the award; but where no date is so specified, it comes into operation when it becomes enforceable. This is positive indication that the tribunal has jurisdiction to make its award operative from any date as may be specified in the award. In view of this provision in the Act the jurisdiction of the tribunal to give retrospective effect to its award cannot be doubted. This view has support in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. State of Mysore 1958 I L.L.J. 79.

5. But the learned Counsel of the appellant company argues that what is contemplated by Section 17A(4) is only to fix a date on which the award shall come into operation after the date of the award and before its enforceability as contemplated by Section 17A(1). According to the learned Counsel, Section 17A(4) does not confer any jurisdiction on the tribunal to fix a date prior to the d ate of the a ward, on which the award shall come into operation; in other words, according to him, the tribunal has no jurisdiction to give retrospective effect to its award, the only power that Section 17A(4) confers being the power to fix any date after the date of the award but before the enforceability of the same as contemplated under Section 17A(1). We do not think that there is any warrant for holding that Section 17A(4) confers only such a limited power on the tribunal and not the jurisdiction to grant retrospective effect to its award from any date specified therein.

6. At any rate, in this case, issue 17 specifically refers the question of retrospectivety to the tribunal and that being so, the retrospectivity of the award in this case cannot be questioned on. the ground of lack of jurisdiction of the tribunal as stated in such general terms as mentioned above. The learned Counsel of the appellant-company has rightly conceded that in this case the tribunal had jurisdiction to give retrospective effect to its award, as issue 17 has referred that question also to it. But his further contention is that in view of the wording of issue 7, the tribunal should not have given such retrospective effect to the relief covered by the said issue. The learned advocate of the union as well as the learned Government Pleader support the award by contending that the tribunal has such power under Section 10(4) of the Act.

7. Section 10(4) of the Act provides that, wherein an order referring an industrial dispute to a tribunal, the appropriate Government has specified the points of dispute for adjudication, the tribunal shall confine its adjudication to those points and matters incidental thereto. The contention of the learned advocate of the union and the learned Government Pleader is that, in view of the wording of issue 17 the retrospectivity given to its award by the tribunal is well within its jurisdiction, because it is only a matter incidental to the points covered by issues 7 and 17. The wording of this subsection makes it very clear that the tribunal has jurisdiction to decide only disputes or points referred to it and matters incidental to such disputes or points. It is also well-settled, that, if the tribunal does not confine its adjudication to those points but travels beyond the disputes or questions referred to it by the referring order, its decisions on questions beyond the points referred to it are without jurisdiction and are liable to be quashed, the exception to this being decisions on matters incidental to questions referred to it. Therefore the question before us resolves itself into this: Whether the retrospebtivity given to its award by the tribunal by granting overtime allowance for Saturday afternoon work is incidental to the decisions of the question referred to it under issue 7. The relief under issue 7 by the very wording of the issue cannot be retrospectively brought into effect. It may be also noted that the finding of the tribunal under issue 7 is that 'there will be no work from 1 p.m. on Saturdays.' Retrospectivity to this issue, if at all, can only be given by granting compensation by way of overtime, allowance for the work done in excess of the five hours on Saturdays. For granting such a relief of compensation there must be a claim for it by the workers. In the written statement filed by the union before the tribunal the only allegation regarding issue 7 is as follows:

The working time on Saturdays should be reduced to five hours, i.e., from 8 am. to 1 p.m., which shall be the normal working hours of the terminal.

There is no claim anywhere regarding payment of compensation by way of overtime allowance for the work already done on Saturdays after 1 p.m. It is also worthwhile to note that the company was well within its legal rights in keeping a 48-hour week. Under Section 51 of the Factories Act a factory shall not require or allow a worker to work for more than 48 hours in a week and in case any worker works in a factory for more than 48 hours in a week, Section 69 of the Act lays down that he shall be paid in respect of the overtime work at the rate of twice his ordinary rate of wages. Therefore overtime allowance at double rate can be claimed only if the worker works for more than 48 hours in a week. It may be that the company has now agreed to a lesser number of hours per week; it may also be that the tribunal has fixed the number of hours of work for Saturdays at five. But it is doubt' ful whether the tribunal is justified in the circumstances of this case in allowing overtime allowance at double the ordinary rate of wages for work below the statutory period allowed by the Factories Act. In any view of the matter, in the present case, since the question of compensation for overtime work on Saturdays was not raised by the workers, nor was it referred to the tribunal under issue 7, the tribunal exceeded its jurisdiction granting compensation for overtime work on Saturdays. In other words, the giving of retrospective effect to the relief granted under issue 7 by granting compensation for overtime work at double the ordinary rate of wages cannot be supported as a decision on a matter incidental to the point referred to the tribunal.

8. The result is that we hold that the order of the tribunal giving retrospective effect to the relief under issue 7 by granting overtime allowance is without jurisdiction as being beyond the question referred to it or incidental thereto. Therefore we allow the appeal and quash the award of the tribunal to the extent to which the tribunal has given retrospectivity to the relief under issue 7. In the circumstances of the case we would direct the parties to bear their respective costs.


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