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Rifle Factory Co-operative Society Ltd. (Stores Branch) Vs. Fourth Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 262 of 1956
Judge
Reported inAIR1959Cal349,(1960)IILLJ517Cal
ActsIndustrial Disputes (Appellate Tribunal) Act, 1950 - Section 20, 20(1) and 20(2); ;Industrial Disputes Act, 1947 - Sections 11, 33C, 33C(1) and 33C(2)
AppellantRifle Factory Co-operative Society Ltd. (Stores Branch)
RespondentFourth Industrial Tribunal and ors.
Appellant AdvocatePhanindra Kumar Sannyal and ;Kiran Mitra, Advs.
Respondent AdvocateJ. Majumdar, ;Prodyot Kumar Benerji, ;Provat Kumar Sen Gupta, ;Amar Prosad Chakravarty and ;Madan Mohan Saha, Advs.
Cases ReferredH. H. Parmar v. S. P. Shinde
Excerpt:
- .....had previously made the award thinking that the whole dispute was a matter of 'computation' in terms of money under sub-section (2) of section 20 of the act. the petitioner contended before the industrial tribunal that all these applications were wholly misconceived and not maintainable in law. the industrial tribunal, however, on 27-12-1955 held that it had jurisdiction to entertain those applications and proceeded to interpret the previous award and gave such a construction that the award became retrospective. the material portion of the tribunal's interpretative order is as follows:'the tribunal has accordingly mentioned that the recommendation of the sub-committee will be implemented with effect from 1-4-49 so far as stores are concerned as per recommendation of the.....
Judgment:

P.B. Mukharji, J.

1. This is an industrial dispute between the Rifle Factory Co-operative Society Ltd. and its workmen. The petitioner applied for and obtained a Rule nisi on 25-1-1956 for a writ in the nature of mandamus or prohibition and certiorari directed against an award of the Fourth Industrial Tribunal purported to have been made under Section 20 (2) of the Industrial Disputes (Appellate Tribunal) Act. An interim order was obtained on that day staying all further proceedings and the Rule was fixed for hearing on 22-2-1956. It has taken all this time to come up for disposal.

2. The facts may be briefly set out before discussing the points involved in the application. By an order dated 30-8-1952, the Government referred to the Fourth Industrial Tribunal for adjudication amongst others the dispute which was described as, 'Issue No. 2', in the order of reference in the following terms :

'Whether the graded scale of pay of all categories of employees now in force should be revised: what should be the fair scales of pay of the employees.' The Award was made on 18-9-1953. The material portion of the Award relevant for the purpose of determining this application is as follows :

'I, therefore, award that the recommendations of the Sub-Committee will be implemented with effect from 1-4-49, so far as the stores are concerned as recommended by the Sub-Committee so far as the scale of pay is concerned as also the question of fitting in of the employees.'

Linguistically and grammatically, this particular part of the award is open to criticism. The controversy naturally arose whether the Award was prospective or retrospective. The words, 'with effect from 1-4-49', inspired the argument that the Award was retrospective although it was made on 18-9-1953. On behalf of the petitioner, it is contended that the Award was not retrospective and those controversial words, 'with effect from 1-4-49', only meant that the rates that were prevailing on 1-4-49 and which were recommended by the Sub-Committee would be the rates applicable as the graded and fair scale of pay of the employees of the petitioner under Issue No. 2 which I have quoted above from the terms of reference. Before deciding this point, which is the only point before me, I should like to complete the statement of facts.

3. This Award was published on 13-10-1953 and became operative on or about 13-11-1953. The petitioner offered to the workmen concerned increased wages on the basis of the Award but the workmen did not accept such wages till November 1954, while accepting the same from December 1954. There was an appeal by the petitioner before the Labour Appellate Tribunal but being out of time, the appeal was dismissed on the ground of limitation on 15-11- 1954, In June 1955, the workmen made applications to the Joint Secretary, Government Labour Department, under Section 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for the recovery of their arrears of wages contending that they were entitled to higher wages retrospectively from 1-4-49 under the Award. These applications were made under Section 20 (1) of the Industrial Disputes (Appellate Tribunal) Act because all these applications calculated the specific sum of money alleged to be due to each of the workmen under the Award, with the particular prayer that the specified sum of money stated in each petition be realised by Certificate arrears of Land Revenue as provided under Section 20 (1) of the Industrial Disputes (Appellate Tribunal) Act. The petitioner disputed the claim before the Government and denied that the workmen were entitled to claim higher wages from 1-4-49.

4. What the Government thereafter did was to convert these applications into proceedings under Section 20 (2) of the Industrial Disputes (Appellate Tribunal) Act and sent these applications to the Industrial Tribunal which had previously made the Award thinking that the whole dispute was a matter of 'computation' in terms of money under Sub-section (2) of Section 20 of the Act. The petitioner contended before the Industrial Tribunal that all these applications were wholly misconceived and not maintainable in law. The Industrial Tribunal, however, on 27-12-1955 held that it had jurisdiction to entertain those applications and proceeded to interpret the previous award and gave such a construction that the Award became retrospective. The material portion of the Tribunal's interpretative order is as follows:

'The Tribunal has accordingly mentioned that the recommendation of the Sub-Committee will be implemented with effect from 1-4-49 so far as Stores are concerned as per recommendation of the Sub-Committee. It is admitted by the learned Advocate for the employers that if the matter rested here, the plain meaning would have been what I have stated just now. But his argument is that by adding of the words, 'so far as the scale of pay is concerned as also the question of fitting in of the employees', the implication has been changed and what has been ordered by the Tribunal was that the scale of pay and the fitting in will be done on the date of enforcement of the Award. In other words, the addition of these words has been made by the Tribunal with the object of not allowing the workmen the arrears from 1-4-49 to 12-11-53. I am unable to believe from the Award that this was the intention of the Tribunal, or that the words, 'so far as the scale of pay is concerned as also the question of fitting in,' have been added with the object of disallowing the arrears. These words, in my opinion, have been added simply to make the points specific. This is my interpretation at the Award in consideration of the circumstances of the case as stated in the Award. I, therefore, hold that the workers will be entitled to arrears. But it is conceded by the learned Advocate for the Union that computation of casual leave and attendance bonus will not strictly speaking come within the purview of Section 20, Clause (2). So, the claim with regard to them was not rightly pressed and I disallow it.

With regard to other items, the amounts due may be checked by the parties themselves within 7 days, failing which a Commissioner will be appointed to determine the said amounts.'

5. It is against this interpretation and construction that the present petition is directed. I am afraid, the Fourth Industrial Tribunal, by the order of 27-12-1955, interpreting the previous award, went beyond It's jurisdiction. In fact, I should have thought that casual leave and attendance bonus might be computed in terms of money and might come under Section 20(2) of the Act but interpretation of a previous award construing whether it was prospective or retrospective could not be a matter of 'computation' under Section 20 (2) of the Industrial Disputes (Appellate Tribunal) Act. It is plain that this interpretation cannot stand.

6. In fact, by reason of such interpretation, the Tribunal has put itself in a very false position. If the interpretation is good, then the previous Award becomes bad by reason of its thereby being rendered retrospective in operation. The terms of reference on which the original Award was made used the expressions, 'what should be' the fair scales of pay and whether the present scales of pay 'should be' revised. Under those terms of reference, the award could not be made retrospective. A similar point with similar expression, 'what should be', did come up before this Court in Workmen of Bengal Electric Lamp Works Ltd. v. The Bengal Electric Lamp Works Ltd. AIR 1958 Cat 663, where I took the view that the Industrial Tribunal in exercising its jurisdiction was bound by the terms of reference and the jurisdiction of such Tribunal was confined to the actual points of dispute on the terms of reference and that these words 'what should be' did not invest the Tribunal with jurisdiction to award retrospectively. In other words, by giving the interpretation on 27-12-1955, the Award of 1953 was thrown open to the charge of being rendered invalid.

7. While again on the other hand, it is being challenged that the interpretation far from being good is without jurisdiction even under Section 20 (2) of the Industrial Disputes (Appellate Tribunal) Act. The scheme of Section 20 of the Industrial Disputes (Appellate. Tribunal) Act envisages three different procedures although related to one another. Under Sub-section (1), any money due from an employer under an award of a Tribunal can be recovered as arrears of land revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the money under that award. Sub-section (2) relates to not what is prima facie money due under an award but concerns cases of any 'benefit' under an award which is capable of being 'computed' in terms of money. The 'computation' of a benefit in terms of money under this Sub-section is made the subject of jurisdiction by that Industrial Tribunal which made the award. In Sub-section (3), the Industrial Tribunal is given the auxiliary power to appoint a Commr. for the purpose of such computation who is to report to the Tribunal after taking any necessary evidence and the Tribunal thereafter shall determine the amount. It is only when the Tribunal has made the computation that the Certificate for the recovery of that computed money as arrears of land revenue or public demand can issue.

8. Reading Section 20 as a whole, I do not see that there is any scope for the Industrial Tribunal, tub-sequent to an award made by it, retaining or possessing any jurisdiction thereafter as a Court of construction. The jurisdiction of the Industrial Tribunal does not, in my view, include the jurisdiction to construe previous awards so as to give either enhanced or mitigated effect to such awards by such process of interpretation or construction. The Industrial Tribunal is not a Court of general and residuary jurisdiction but a Tribunal with specific jurisdiction enumerated by the terms of the order of reference. The Industrial Tribunal is an ad hoc tribunal with ad hoc jurisdiction to determine specified industrial dispute.

9. The language of Section 20(2) of the Act, which is the relevant section with which this application is concerned, may be set out with a view to show that computation is not construction. The words are :

'20 (2). Where any workman is entitled to receive from the employer any benefit under an award or decision of an industrial tribunal which is capable of being computed in terms of money, the amount at which- such benefit should be computed may, subject to the rules made under this Act, be determined by that Industrial Tribunal, and the amount so determined may be recovered as provided for in Sub-Section (1).'

Computing a benefit in terms of money is not construction of a previous award so as to give it a meaning that the award should have retrospective and not prospective effect. That, in my view, is not computation within die meaning of Sub-section (2) of Section 20 of 1 the Industrial Disputes (Appellate Tribunal) Act. Under Section 20 (2) of the Act the Tribunal must take the Award as it is and proceed to translate the benefit thereunder in terms of money and do nothing to enlarge or restrict the nature & scope of the Award. Under this Sub-section (2) of Section 20 of the Act the Tribunal can only value the Award in terms of money and can do no more.

10. The nature of computation which is contemplated under Section 20 (2) of the Act can be clearly illustrated from the decision of the Supreme Court in S. S. Shetty v. Bharat Nidhi Ltd., : (1957)IILLJ696SC , where the award gave the benefit of reinstatement and what was computed under Section 20 (2) was money value of the benefit of reinstatement. As Bhagwati J. of the Supreme Court points out at page 17, that it is where any benefit which is not expressed in terms of money is awarded to the workman under the terms of the award that it would be necessary to compute in terms of money the value of that benefit before the workman can ask the appropriate Government to help him in such recovery. It was there not a case of construction of the award. The award wad clear enough. It gave benefit of reinstatement. What was to be done thereafter was to compute the value of that benefit under the award, in terms of money. Similarly, in Sasamusa Sugar Works Ltd. v. State of Bihar, (1954-1955) 7 FJR 56: ((S) AIR 1955 Pat 49), there was the question of computation of the benefit of the award because the award in that case decided that the workmen of particular categories were entitled to get retaining allowance for off seasons and had further laid down certain principles to be worked out in the case of each worker if found to belong to those categories for the payment of his demand on account of such retaining allowance. It did not deal with the claim of any individual workman or determine which workmen belonged to which category. Therefore, in that ease, the matter was dealt) with under Section 20 (2) because the retaining allowance had to be computed and enquiry directed as to which worker belonged to which category for the purpose of such computation.

11. The order of the Industrial Tribunal of 27-12-1955 in the present case therefore, cannot be sustained. If the order giving the interpretation is good, then the Award is bad. If the interpretation is without jurisdiction, then the order itself is bad. The argument that this point was not taken in the appeal by the petitioner before the Labour Appellate Tribunal in 1954 has no substance because in 1954 the question had not arisen and this question arose only when the particular construction was given by his Industrial Tribunal by its order on 27-12-1955.

12. Before I conclude, it is necessary also to refer to one other feature of these proceedings. The workers made the applications under Section 20 (1) of the Industrial Disputes (Appellate Tribunal) Act. The Government, in my view, took the wrong step in converting them into proceedings under Section 20 (2) of the Act. If the Government thought that it could not decide or issue a certificate, then it should have disposed of the applications on that ground by saying that it could not issue the certificate. It has however no jurisdiction to convert the workmen's applications for payment of a specific sum into applications for computation of a benefit in terms of money under Sub-section (2) of Section 20 of the Act. It will appear from the language of Sub-section (2) of Section 20 that it is only after the amount is computed by the Tribunal that the amount could be recovered under certificate proceedings as land revenue or as public demand under Sub-section (1) of the Act and not before that. It is true that Sub-section (2) of Section 20 of the Act does not say expressly who should make the: reference to the Industrial Tribunal but it is plain from the intent and purpose of that Sub-section that the workmen entitled to receive the benefit which is capable of being computed in terms of money is the pa-son who should apply to the Tribunal for such computation & not the appropriate Government. The appropriate Government comes in later after the Industrial Tribunal had computed and determined the amount which could then be recovered as a public demand or as arrears of land revenue by the appropriate Government on the application made to it by the person entitled to the money so found or computed. Therefore, the proceedings which the Government took on receipt of the applications under Section 20 (1) of the Act in this case were all ultra vires and beyond their jurisdiction.

13. A similar view was expressed by the decision in 1954-55-7 FGR 56: ((S) AIR 1955 Pat 49) which I have already cited where it was held that where the action of the Government under Section 20 (1) of the Act was without jurisdiction, the proceedings taken in pursuance thereof under the Public Demands Recovery Act would also be without jurisdiction. Indeed, that must be so. So also must be without jurisdiction the proceedings taken by the Government purporting to be under Section 20 (2) but which cannot, in fact and law, be under such provision. The reference in June 1955, therefore, by the Government in this case, of all these applications to the Industrial Tribunal for computation as ultra vires and without jurisdiction and competence of the powers of the Government as also all proceedings that followed including the interpretative order of the Industrial Tribunal dated 27-12-1955.

14. I need only refer to two decisions of the Labour Appellate Tribunal of India which are relevant on the point and which were cited at the bar. One is the case of the Proprietor & Exhibitor, Aryan Cinema, Poona v. V. R. Sant, (1954) Lab AC 304 (Bom). In fact, there it was contended on behalf of the employer that it was not competent for the employees to make an application under Section 20(2) of the Act. The contention there was that it was rather the appropriate Govt. which could apply under Section 20(2). This contention was negatived by the Labour Appellate Tribunal and the Labour Appellate Tribunal of India held :

'Obviously, the person who should apply is the person who is entitled to the benefit of the award'.

15. The other case is the case of H. H. Parmar v. S. P. Shinde, (1954) Lab AC 771 (Bom), which appears to have taken the view that the Industrial Tribunal under Section 20 (2) of the Act is only empowered to determine the amount to which the workman is entitled under an award and not to embark on an interpretation or construction of a previous award. I have already given my reasons why I consider that the Industrial Tribunal cannot act as a Court of construction of a previous award to give it a retrospective effect under Section 20 (2) of the Act under the guise of a computation of a benefit under the award in terms of money.

16. This disposes of the points urged before me.The application, therefore, must succeed. The Rulefor mandamus or prohibition and certiorari must bemade absolute. The order of the Industrial Tribunaldated 27-12-1955, interpreting the award of 18-9-1953is set aside and quashed. There will be no order asto costs.


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