D.N. Sinha, J.
1. The petitioner In this case is Bengal Porcelain Company, Ltd., a company incorporated under the Indian Companies Act. By an order dated 20 August 1957 passed by the Government of West Bengal, under the industrial Disputes Act, 1947, certain industrial disputes were referred for adjudication by the third industrial tribunal, between the said company and its workmen. There are seven issues referred. An award has been made by the third industrial tribunal dated 15 November 1958, a copy whereof la annexed to the petition and marked with letter 'D.' Of the seven items which are set out in the award itself, only two items are challenged, namely,
(1) revision in existing pay and wage rate and
(2) dearness allowance.
2. The tribunal went into the facts and has held that it was not prepared to accept the financial position of the company as sound. Actually, in connexion with the revision of the scale of pay the tribunal held that it had not been established that at present the employer had the capacity to pay, and therefore rejected the demand of the workmen on that account. It did go into the question of the capacity of the industry to pay on an industry-cum-region basis. It came to the conclusion that the rates prevailing in Bengal Potteries, Ltd., were higher, but no comparison could be made because of the large dimensions of that company. On the other hand, it held that the rate should be more than that of the Calcutta Porcelain Works, Ltd. To this extent there can be no objection. But the tribunal proceeds to state that regarding the upper limit of the wages, it is dependent upon the capacity of the industry to pay and other factors, but no such restriction applies to the minimum wages. Therefore, although it came to the definite finding that the company was not financially in a sound position or able to pay any increase in the emoluments of the workers, It increased the wages, calling it an increase in the 'minimum wage.' As I have pointed out in Bangur Brothers, Ltd., and Ors. v. Government of West Bengal 1961-II L.L.J. 351 certain teats have been laid down by the decisions of the Supreme Court and those tests will have to be applied. There is no principle that minimum wages should not be wedded to the capacity to pay. Of course this does not refer to the minimum wages under the Minimum Wages Act, or bare or starvation wages. In this particular case, there is no question of minimum wages under the Minimum Wages Act, or of starvation wages. Therefore, the increase in the wages can only be made after a careful consideration of the financial ability of the company to bear the increase and after the tribunal had come to the conclusion upon the evidence before it, that the company had the capacity to bear this increase. Not only there is no such finding, bat the findings are the other way.
3. Coming now to the dearness allowance, I have held in the case of Bangur Brothers (supra) that certain factors have to be taken into account in awarding dearness allow ance, one of which of course is the capacity to pay. Here again, the tribunal comes to the conclusion that the company is not in a sound financial position, and yet, holds that dearness allowance should be paid because, by a 'little adjustment' the company would be able to bear the burden imposed. No indication was laid down as to what this 'little adjustment' means or involves. Actually, the learned advocates appearing for the workmen said that the finding on dearness allowance can scarcely be supported. In my opinion, the award on these two grounds is erroneous and must be set aside.
4. The result, therefore, will be that this rule is made absolute and the award of the third industrial tribunal dated 15 November 1958, in so far as the issues (1) and (3) are concerned, is quashed by a writ in the nature of certiorari. There will be no order as to costs. I make it clear however that the award relating to the other issues remains intact.