Balakrishna Ayyar, J.
1. The Trichy-Srirangam Transport Company (Private), Ltd., runs a number of buses in and between the towns of Tiruchirappalli and Srirangam. The employees of this company are represented by two unions, one called the Trichy District Motor Workers' Union and the other called the General Workers' Union. Various disputes arose between the company and its employees, and by an order which they made on 29 April 1957 the Government of Madras referred them for adjudication to the Industrial Tribunal, Madras. The tribunal pronounced its award on 11 November 1957. The present petition has been filed by the company for the issue of an appropriate writ to quash the order of the tribunal.
2. The tribunal dealt with eight matters. The petition was argued before me only as regards five of these matters. The correctness of the award as regards items 1, 3 and 4 therein has not been questioned. I need not, therefore, go into them.
3. Item 2 of the award dealt with the demand of the workers for the introduction of a provident fund scheme. In respect of that the tribunal made this order:
I therefore direct the provident fund scheme to be introduced for the benefit of the employees of this transport company with effect from 1 April 1957; but the gratuity will be merged into that scheme, that is to say, whatever moneys are available to the employees under the gratuity scheme will be transferred to their respective credits under the provident fund scheme. The contribution to the provident fund scheme will be 6 1/4 per cent of the basic wages and dearness allowance. The parties will file draft rules regarding the provident fund scheme and those rules, after approval by the tribunal, will be incorporated in this award. If the parties fail to do so within two weeks from this date, the provident fund rules in force in A.B.T. Motor Transport, Pollachi, will be adopted by this company with suitable modifications, wherever necessary.
4. The first criticism which Mr. Thyagarajan, the learned advocate for the company, made in respect of these directions was that they are in excess of the powers and jurisdiction of the tribunal; according to him the tribunal has no authority to direct the introduction of the provident fund scheme. His argument was this: The earlier part of Sub-section (3) of Section 1 of the Employees' Provident Funds Act, 1952, provides that subject to the provisions contained in Section 16, it shall apply to every establishment which is a factory engaged in any industry specified in Son. I and in which fifty or more persons are employed.
5. The latter part of this sub-section empowers the Central Government to extend the provisions of the Act to any other establishment employing fifty or more persons. The position, therefore, is that the legislature has made the Act directly applicable to certain establishments. It has also given power to the Central Government to notify other establishments to which the Act may be extended. By implication no other authority has jurisdiction to extend the provisions of the Act to any establishment. To say that the industrial tribunal has power to make the provisions of the Act applicable to other establishments would be to confer on the tribunal a power which the legislature entrusted exclusively to the Central Government.
6. It seems to me that there is a fallacy in this argument. No doubt it is only the Central Government which can direct that the provisions of the Act shall apply to establishments other than those referred to in the first part of Sub-section (3) of Section 1. But it does not follow that the tribunal cannot direct the introduction of a provident fund scheme independently of the Act. One illustration will make my meaning plain. Central Act LVIII of 1952 provides that Ministers shall be entitled without payment of rent to the use of a furnished residence. It also provides that the Ministers in occupation of such residences need not pay for electricity and water. It also provides that a Minister and the members of his family shall be entitled free of charge to accommodation in hospitals maintained by the Government and also to free medical treatment. The Act also provides that advances may be made to Ministers for the purchase of motor cars. Now, because such provisions are made in respect of Ministers, it does not, as a matter of law or logic, follow that a tribunal cannot direct that managements should provide free quarters for its employees and free light and free water. It does not follow that a tribunal cannot direct that a management shall provide free medical treatment for its employees and the members of their families. It does not also follow that a tribunal cannot direct the managements should make advances to their employees for the purchase of conveyances. Therefore, the circumstances that the Central Government is given power to direct that the provisions of the Employees' Provident Funds Act shall be extended to certain establishments does not preclude the industrial tribunal from directing that a management should introduce a provident fund scheme.
7. There would however be important differences between provident fund schemes introduced in pursuance of the orders of, an industrial tribunal and provident fund schemes introduced in pursuance of the Employees' Provident Funds Act, The scheme under the Act would in certain respects stand in a favoured or protected position. They would be funds recognized for purposes of the Indian Incometax Act. The amounts standing to the credit of any member of the fund would be protected from attachment under certain circumstances. The amounts standing to the credit of the fund would get priority in the event of the insolvency of the employer or the winding up of the company. Provident fund schemes introduced in pursuance of the orders of an industrial tribunal would not be entitled to these benefits.
8. Mr. Thyagarajan next argued that an industrial dispute between the same company and its employees arose in 1954 and that it was disposed of as I.D. No. 6 of 1954. At that time there was only a claim for gratuity and there was no claim for a provident fund scheme. Having accepted the gratuity scheme in 1954, the employees are now precluded from asking for a provident scheme.
9. I am unable to accept this contention either. The direction which the tribunal gave in I.D. No. 6 of 1954 on this point was as follows :-~
On a consideration of all the circumstances, I find that gratuity should be paid to every worker at the rate of half months wages for each year of service reckoned from the date of the worker joining the company subject to a maximum of twelve months' wages, the said monthly wage being the highest pay last drawn by the worker at the time of termination of service by whatever cause.
This is not a matter to which the principles of res judicata can be made applicable. Nor is there any estoppel against the employees. That the tribunal directed that the gratuity-scheme should be merged with the provident fund scheme makes no difference. I am not. therefore, prepared to disturb the finding of the tribunal in respect of this matter.
10. Item 5 in the order of the tribunal was fixation of the scales of wages of all categories of workers. The tribunal has fixed various scales of pay for various classes of employees and I was told that the scales it has fixed are the same as those which obtain in other establishments in the same district. There is no question of jurisdiction here, or any error apparent on the face of the record. The decision of the tribunal on this point cannot be disturbed. I now go on to item 6 in the order of the tribunal. In 1954 the company retrenched nine of its employees. At that time an industrial dispute was pending and so the company applied under Section 33 of the Act for permission to effect the retrenchment. The Industrial Tribunal, Madurai, granted the permission sought for subject to certain conditions. One of these was that each of the persons retrenched should be paid by way of retrenchment relief the amount set out against his name. Another was that he should be given one month's notice or wages in lieu of notice. This was to be over and above the amount of retrenchment relief ordered to be paid. The company paid the amounts as directed by the industrial tribunal, Madurai. The workmen appealed against the order of retrenchment and complained that the amount of compensation was not in accordance with Section 25F of the Act. But that appeal was not admitted on the ground that it had been presented out of time. The workers contended that the compensation ordered to be paid in 1951 was insufficient and that they should he paid retrenchment compensation in accordance with Section 25P of the Act. The industrial tribunal allowed this claim.
11. Mr. Thyagarajan contended that the order passed by the industrial tribunal in 1954 became final and that the workers are not therefore entitled to agitate the matter over again. The principle of res judicata applies to all proceedings which involve the adjudication of disputed rights, and, whether it was right or wrong, the order made in 1954 was allowed to become final and it cannot be reopened now.
12. I agree with Mr. Thyagarajan that the principles of res judicata apply to these proceedings. But, I do not think that the argument would help him in the present case, and that is because the industrial tribunal, Madurai, when it directed the company to pay compensation on a certain basis, had no jurisdiction to make such an order in the petition before it. The company's petition was for permission to retrench the workmen under Section 33 of the Industrial Disputes Act. When such a petition was presented, all that the industrial tribunal had power to do was either to grant the permission or refuse the permission. It had no power to attach any conditions to the permission. When, therefore, it directed that compensation should be paid to the retrenched workmen on a certain basis, it was making an order which it had no jurisdiction to make. As the order made in 1954 was, therefore, an order made without jurisdiction, it is riot one to which the principles of res judicata will apply.
13. I may here refer to the decision of the Supreme Court in Civil Appeal No. 500 of 1957 [G. McKenzie & Co., Ltd. v. Us Workmen and Ors. 1959 L.L.J. 285 where it is observed:
As the purpose of Section 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under Section 33 would not operate as res judicata and bar the raising of an Industrial dispute.
Mr. Thyagarajan next contended on this point that the persona retrenched in 1954 were no longer workmen within the meaning of the definition in Section 2(s) of the Act and that therefore the question of compensation payable to them would not be an industrial dispute within the meaning of the Act.
14. The word ' workman ' in Section 2(s) is defined as including ' any such person . . . whose dismissal, discharge or retrenchment has led to that dispute ...' The retrenchment of these nine individuals has raised this industrial dispute, viz., what the amount is of the compensation that should be paid to them, For the purpose of that dispute, the discharged workmen would continue to be workmen within the meaning of that definition. A retrenchment may produce an industrial dispute either because the workmen object to the retrenchment itself, or because they insist that the compensation paid is not adequate. In either case it will be proper to say that the retrenchment has led to the industrial dispute, and so, it seems to me, the tribunal was right in taking the view that it had jurisdiction in the matter.
15. Mr. Thyagarajan next contended that the matter is three years old and that there should be some end to matters of this kind. But then no rule of limitation has been enacted by statute and it is therefore open to workmen to raise a dispute however stale or hoary the claim may have become. But, when there is delay in raising a dispute, an industrial tribunal would be exercising its jurisdiction wisely in taking that circumstance into account, and, in appropriate cases, refusing relief. That however is not a matter of jurisdiction. As the law stands, it is only a matter of discretion. I cannot, therefore, interfere with the order of the tribunal in this respect either.
16. Item 8: In 1948 Mr. Venkataramayya passed an award which is generally called the Motor Transport award. In accordance with the terms of that award the company framed standing orders under which its workmen were entitled to privilege leave for 17 days in addition to 7 days festival leave and 7 days sick leave. In July 1960 the company cut down the privilege leave to one day for every 20 working days. They did so apparently under the impression that the provisions of the Factories Act applied to them. The employees raised an industrial dispute- I.D. No. 6 of 1954-and the award passed on 7 June 1954 directed
that workshop workers also are entitled to 17 days privilege leave per annum, exclusive of 7 days sick leave and 7 days festival leave. The sick leave or festival leave shall not be allowed to be accumulated. The privilege leave of 17 days to which the workers are entitled shall be allowed to be accumulated only according to Section 11(6) of the standing orders.
The award, however, did not say anything in express terms as to the period between 5 July 195(sic) and 7 July 1954 when the award same into force. The employees raised the question that for that period the workers were entitled to 17 days privilege leave. The tribunal upheld the claim of the employees and passed an award accordingly.
17. Mr. Thyagarajan contended that here is a matter to which the principles of res judicata apply. The tribunal observed:
The labour disputes are not often governed by the strict provisions of the Code of Civil Procedure. It is open to the workmen to raise an industrial dispute in regard to every one of their grievances, or they can consolidate all their grievances in one single dispute. It was therefore open to them in the prior dispute to raise a demand only with reference to the future leave privilege ; and in the present dispute the question is raised in regard to the years preceding the date of the coming into force of the award.
The tribunal is certainly right in spying that the provisions of the Civil Procedure Code do not in terms apply to labour disputes. But the principle of res judicata are not peculiar to the Civil Procedure Code. In Burn & Co, v. their employees 1957 L.L.J. 228, Venkatarama Ayyar, J., observed as follows :
That section [Section 11, Civil Procedure Code] is no doubt, in terms, inapplicable to the present matter, but the principle underlying it, expressed in the maxim ' interest rei publicae ut sit finis litium,' is founded on sound public policy and is of universal application [vide Broom's Legal Maxims, 10th Bdn., p. 218], 'The rule of res judicata is dictated,' observed Sir Lawrence Jenkins, C.J., in Sheoparsan Sing v. Ramanandan Prasad Narayan Sing 43 Ind. Ap. 91 : I.L.R. 1916 Cal. 694 : A.I.R. 1916 P.C. 78 'by a wisdom which is for all time.
And there are good reasons why this principle should be applicable to decisions of industrial tribunals also. Legislation regulating the relation between capital and labour has two objects in view.
If the principles of res judicata apply to these proceedings, it seems to me to be clear that whatever claims the workmen had in respect of privilege leave up to the time the Government made the reference in I.D. No. 6 of 1954 should have been pressed before the tribunal, and, if they omitted to do that, they cannot now be allowed to do it. In this view I quash the award of the tribunal in respect of this item.
18. Item 7: This relates to fixation of the rate of Increments to all the workers from the year 1953.
19. In order to understand the arguments advanced on this point it is necessary to mention certain facts. In 1948 Mr. Venkataramayya was appointed to adjudicate on various disputes then existing between the workers and the managements of certain motor transport services and motor transport workshops in the province of Madras. His award took effect from 1 May 1948, and, it would have ordinarily expired on 1 May 1949. But the order of reference which Government made was what has been described as an 'omnibus' reference, that is to say, in the order of reference the Government did not particularize the disputes on which Mr. Venkataramayya was required to make his award; the reference was general in its terms. A similar 'omnibus' reference was made to Mr. Ramayya Pantulu in respect of disputes in the engineering trades. On 17 September 1948 Subba Rao, J., held that a reference of the kind that had been made to Mr. Ramayya Pantulu was incompetent and that he had no jurisdiction to enquire into disputes brought before him by workers in any particular firm in the engineering basis. This decision was affirmed by a Bench of this Court in Ramayya Pantulu v. Kutty and Rao 1949 L.L.J. 13. Thereupon the legislature of the State of Madras passed Madras Act XII of 1949 seeking to validate awards that had not been actually quashed or set aside by the orders of this Court. Section 5 of that Act provided that all awards made by tribunals to whom what I called 'omnibus' reference had been made shall be deemed to be good and shall not be called in question on the ground that the tribunal was not constituted in accordance with the provisions of the Industrial Disputes Act, or that the dispute was not referred to the tribunal in accordance with the provisions of the Act. The second paragraph of the section, however, ran:
Nothing contained in this section shall be deemed to invalidate any decision or order of a Court which became final before the commencement of this Act.
Section 6 was in the following terms:
All awards passed by industrial tribunals and mentioned in the schedule hereto which could not be enforced on account of the proceedings before the High Court, shall be current and valid for a further period of one year from the commencement of this Act.
In the schedule to the Act was included the Motor Transport award of Mr. Venkataramayya.
20. The validity of Madras Act XII of 1949 was considered by a Bench of this Court in Sarathi (C. P.) v. State of Madras 1951 L.L.J. 148, and it was held that Section 6 offended against Article 14 of the Constitution and was therefore void. This is what Govinda Menon, J., said on pp. 167-158:
On this aspect of the case, our conclusion is that though at the time Act XII of 1949 was passed, it could not have been held to be invalid on account of the discrimination contained therein, after 26 January 1950, in view of Article 13(1) of the Constitution which says that all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this part shall, to the extent of the contravention, be void, it has to be held that the legislation is inconsistent with Article 14, equality before law, and is therefore void.
The decision of the Bench on the main point was reversed by the Supreme Court in State of Madras v. C, P. Sarathy 1953 L.L.J. 174 where the view was upheld that an 'omnibus' reference was not bad. Their lordships, however, did not express any opinion on the validity or otherwise of Section 6 of Madras Act XII of 1949.
21. The contentions of the learned Counsel on this part of the case covered very considerable ground. Dealing with one aspect of the matter Mr. Dolia, the learned advocate for the workers, contended that the award of Mr. Venkataramayya continued to be in force even in 1957. This is how he put his case. In Its own right and strength the award of Mr. Venkataramayya was in force from 1 May 1948 to 1 May 1949. Section 6 of Madras Act XII of 1949 extended the currency and validity of that award for a period of one year from 10 August 1949, the date of the commencement of the Act. So the award would have expired only on 10 June 1950. Meantime Central Act XLVIII of 1950 introduced among other things Sub-section (6) of Section 19 of the Industrial Disputes Act. That sub-section runs:
Notwithstanding the expiry of the period of operation under Sub-section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award.
The notice required by this sub-section has not been given. The award, therefore, continues to have effect.
22. Mr. Thyagarajan, on the other side, contended that Section 6 of Madras Act XII of 1949 did not have the effect of reviving the award of Mr Venkataramayya which had ceased to be effective from 1 May 1949. Before Section 6 of the Act can apply two conditions must be satisfied. One is that the award in question must be an award enumerated in the schedule. That condition is no doubt satisfied in the present case. But another condition also must be satisfied, and it is this: the award ' could not be enforced on account of the proceedings before the High Court.' There were no proceedings in the High Court or in respect of or in relation to the award passed by Mr. Venkataramayya. The second requirement of the section has not been satisfied. Therefore Section 6 will not avail to extend the life of the award passed by Mr, Venkataramayya.
23. To this it was replied that though there were no proceedings before the High Court in respect of the award which Mr, Venkataramayya had passed, there were proceedings before the High Court in respect of other awards made on similar omnibus references and that the decision of the High Court in those proceedings made it impossible to enforce the award of Mr. Venkataramayya.
24. Now it may well be that the intention of those who wrote the words actually appearing in Section 6 was to extend the life of awards which came within the mischief of the decision of Subba Bao, J., and of Horwill and Rajagopalan, JJ., in Ramayya Pantulu v. Kutty and Rao 1949 L.L.J. 13. But the words actually used in the section-and a Court can only construe the words actually written into the statute-appear to me to be more in accord with the interpretation which Mr. Thyagarajan invited me to put on them.
25. Mr. Thyagarajan next said that before Act XII of 1949 was passed the award of Mr. Venkataramayya had lapsed, and, if the intention of the legislature had been to revive an award that had lapsed or expired, a different set of words should have been used. As it stands, the words 'shall be current and valid for a further period of one year ' postulate that the award continues to be current and valid. He pointed out, and I think quite properly, that the legislature did not use words to the effect 'notwithstanding that any award has lapsed or expired.' This argument too has force.
26. Mr. Thyagarajan finally pointed out that a Bench of this Court has observed that Section 6 of Act XII of 1949 offends against Article 14 of the Constitution and that though the decision itself was reversed by the Supreme Court on other grounds, the observations on this point were not disapproved of. I mast respect the view explained by a Bench of this Court, and in accordance with that view, I must hold that Section 6 of Act XII of 1949 is bad.
27. Mr. Dolia, however, contended that even though an award may expire by efflux of time it does not follow that the award is out altogether and the only thing is that its provisions cannot be enforced under the Industrial Disputes Act. But the rights and obligations which are created under the award can be enforced in proceedings in civil courts. In this connexion lie referred to the decision in Judhisthir Chandra v. Mukherjee : AIR1950Cal577 . The relevant facts there were as follows : An award was passed on 25 May 1948 which ceased to be effective after 25 May 1949. The award in question had directed that dearness allowance at a certain rate should be paid. The employer then made representations to the Provincial Government that there had been material changes in the circumstances on which the award had been based and asked for a reference to a tribunal and the Government made a reference. The union contended that the tribunal had no jurisdiction to adjudicate upon the issues raised. The tribunal overruled the objection and decided that the 'terms regarding the amount of dearness allowance and the payment of the same with retrospective effect as per award dated 15 May 1948 shall cease to be in operation and the award is amended and modified accordingly.' The matter was taken to the High Court and it was contended on behalf of the workmen that since the award ceased to be effective after 25 May 1949 there can be no modification of the award. The Court observed;
This contention! I do not think, is right. It overlooks the fact that though the award of 15 May 1948 had become ineffective by the passing of time, the rights flowing therefrom have not been wiped out. The award directed payment of certain dearness allowance which, if not paid, created a debt in favour of the workmen, and it was a binding debt. The award binds the parties in the same way, as if the terms were agreed between them. In my view, the payment of this debt can be enforced by a civil suit.
A Bench of the Bombay High Court followed this case in Mangaldas Narandas v. Payment of Wages Authority 1957 L.L.J. 256. It was contended in the Bombay High Court that the termination of an award puts an end to all the rights and obligations created thereby and as a result of the termination of the award the obligation to pay remuneration at the rate prescribed thereby ceases. The Court repelled the contention. It observed ;
In our judgment, the effect of termination of the award is only to prevent enforcement of the obligations under the award in the manner prescribed, but the rights and obligations which flow from the award are not wiped out. In taking that view we are supported by a judgment of the Calcutta High Court in Judhisthir Chandra v. Mukherjee : AIR1950Cal577 .
In Burn & Co v. their employees 1957 L.L.J. 226 the Supreme Court also expressed the view that the termination of an award does not put an end to all the rights and obligations arising out of it. Venkatarama Ayyar, J., observed (pp. 229-230):
What then is the position Are we to hold that an award given on a matter in controversy between the parties after full hearing ceases to have any force if either of them repudiates it under Section 19(6), and that the tribunal has no option, when the matter is again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, and come to a fresh decision That would be contrary to the well-recognized principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be reagitated . . . Now, if we are to hold that an adjudication loses its force when it is repudiated under Section 19(6) and that the whole controversy is at large, then the result would be that far from reconciling themselves to the award and settling down to work it, either party will treat it as a mere stage in the prosecution of a prolonged struggle, and far from bringing industrial peace, the awards would turn out to be but truces giving the parties breathing time before resuming hostile action with renewed vigour. On the other hand, if we are to regard them as intended to have long-term operation and at the same time hold that they are liable to be modified by change in the circumstances on which they were based, both the purposes of the legislature would be served.
But then the problem still remains, to what extent or for what purposes does an award which has expired by efflux of time or which has been terminated by notice survive. That question does not appear to have been so far decided. Probably, the answer would depend upon the circumstances of each case. The Supreme Court has recognized that an award which has ceased to exist either by notice or by efflux of time may be modified if circumstances so require. In this matter the tribunal proceeded on the basis that the award which Mr. Venkataramayya passed in 1948 was in full force and effect. But in view of the decision of this Court that Section 6 of Act XII of 1949 is ultra vires the Constitution, the footing on which the tribunal proceeded would fail.
28. The position, therefore, is that the award of Mr. Venkataramayya which was in the field, lapsed by efflux of time. Circumstances now are certainly not the same as they were in 1948 when Mr. Venkataramayya made his award. What alteration should be made in the award by reason of changed circumstances is a question to which the tribunal did not address itself since it took the view that the award of Mr. Venkataramayya continued to be in force. I understood Mr. Dolia to say that he had no objection to this issue being remitted to the tribunal so that the matter may be decided afresh after taking evidence. Mr. Thyagarajan, however, pointed out that on 29 May 1956 the Motor Transport and General Workers' Union entered into an agreement with the management in regard to the claims for increments on behalf of drivers and conductors, and, that the agreement is in force. It is a matter in controversy as to who the persons are who are bound by this agreement. That matter too the tribunal will have to decide instead of leaving it to be adjudicated upon when the award of Mr. Venkataramayya is sought to be enforced. I would, therefore, quash the award of the tribunal on this point on the ground that it proceeded on the erroneous view that the award of Mr. Venkataramayya was in force. It will be open to the tribunal to take evidence on the question and give a fresh decision. When doing so, it will have to pass suitable orders in respect of the persons bound by the settlement dated 29 May 1956.
29. In the result, the petition is dismissed execept as regards items 7 and 8. The award of the tribunal in regard to these two items is Quashed. There will be no order as to costs.