B.C. Basak, J.
1. In this application under Article 226 of the Constitution of India the petitioner-company is challenging an order passed by the 5th Industrial Tribunal (hereinafter referred to as the Tribunal) on the 16th August, 1972 in a reference made by the Government of West Bengal on the 6th May, 1971 (hereinafter referred to as the said reference) under Section 10 the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act).
2. The facts of this case are shortly as follows: The petitioner-company has its registered office and a factory at 16, Taratolla Road, Calcutta. It carries on the business of manufacture and sale of train and other railway equipments. In the year 1948 an award was made which is known as First Omnibus Engineering Tribunal Award. 'The petitioner-company and its workmen were party to the same. The issues referred to for adjudication on were, amongst others, 'Minimum basic pay and scales of pay', 'Dearness allowances', 'Holidays and leave.' The said award was published under the Government of West Bengal's order, dated 30th June, 1948. 'The second Omnibus Engineering Tribunal Award, arising out of order of reference, dated 8th March, 1950, was made on the 3lst August, 1950. The issues referred for adjudications were, among others. 'Dearness allowance.' 'Holidays and leave.' The petitioner company and its workmen were parties to the same. It is claimed that the said award still remains operative and binding on the parties including the petitioner and its workmen. The Third Omnibus Engineering Tribunal Award arising out of an order of reference, dated 20th December, 1956 was made on 13th October, 1958. The issues referred for adjudication were, among others, 'Wages, grades and scales of pay 'and 'Dearness allowance.' The petitioner-company and its workmen are parties to the same. It is claimed that the said award is still in force and binding on the parties including the petitioner and its workmen. The respondent No. 3 is a trade union which was registered on 9th February, 1964. It purports to represent the employees of the petitioner employed in its registered office. According to the petitioner its employees employed in the Taratolla Road have their own trade union, viz., J. Stone Workmen's Union. On the 8th May, 1967, the respondent No. 3 submitted to the petitioner-company a charter of demands demanding among others revision of pay scales, dearness allowance, etc. On the 26th July, 1967 objections were raised by the petitioner-company before the Conciliation Officer in respect of this charter of demands. On the 10th December, 1968 the second charter of demand was submitted by the respondent No. 3 to the petitioner-company, On the 29th September, 1969 at the initiation of the Government of West Bengal a tripartite settlement was reached between the engineering establishments in West Bengal and the workmen represented by the two Engineering Associations and the workman represented by several unions, (hereinafter referred to as 1969 Settlement). The said settlement covered such issues as 'Wages (basis)', 'Dearness allowance', 'Payment in the revised scales of pay', etc. The said 1969 settlement was operative from July, 1969 to 31st December, 1972 with the proviso that the terms and conditions would remain binding on the parties until terminated by writing by either party by serving two months notice. According to the petitioner-company the 1969 settlement is still in force and the petitioner and its workmen arte still bound by its terms and conditions. Clause 10 of the 1969 wage settlement made a provision for ' opting out ' by providing that if the total of the existing emoluments consisting of basic pay, dearness allowance and interim relief of workmen as a whole is deemed more favourable than the total emoluments (bases and dearness allowance) specified in the 1969 settlement the workmen through their unions shall have the option of choosing to remain under the existing wage and dearness allowances scheme. It was further provided that in such case the terms of the 1969 settlement shall not apply to the workmen of such establishment. Pursuant to above a tripartite settlement reached in conciliation proceedings on or about 21st February, 1970 between the petitioner and J. Stone Workmen's Union (which is the recognised union) representing the workmen. By the said 1970 settlement the workmen of the petitioner-company opted out of the 1969 settlement and arrived at a separate settlement as provided therein. The said settlement was operative for three years, i.e., from the 1st January, 1970 to 31st December, 1973. It was further provided that the same would continue to be binding even after the expiry of that period until two months notice in writing was given by either party in signifying its intention to terminate the settlement as required under Section 19(6) of the said Act. As already stated on the 6th May, 1971 the Government of West Bengal referred to the Tribunal the industrial dispute purported to exist between the petitioner-company and its workmen represented by the respondent No. 3 for adjudication of the issues referred to therein. The issues, which are the subject-matter of the said reference, are as follows: (1) Grades and Scales of Pay; (2) Dearness Allowance; (3) Leave; (4) Gratuity; (5) Promotion;, (6) Travelling expenses for enjoying holidays outside the Head-quarter.
3. On the 5th July, 1971 the respondent No. 3 filed its written statement before the Tribunal. On the 23rd August, 1971, the petitioner-company filed its written statement before the Tribunal inter alia raising preliminary objections regarding the validity of the order reference and the issues framed therein on the following grounds:
(1) Issue Nos. 1 and 2 are directly and specifically covered by and under the said 1969 wage settlement which is applicable to and subsisting between the parties. (2) Alternatively, the said issues are covered by the Omnibus Engineering Tribunal Award of 1958 which has not been terminated by either party to the adjudication.
(3) Issue No. 3 is directly and specifically covered by the Omnibus Engineering Tribunal Award, 1948 and replaced by another Omnibus Engineering Tribunal Award rendered in 1950 and that neither of the award has been terminated by either party to the adjudication.
(4) Issue No. 4 is directly and specifically covered by an Ordinance, i.e., the West Bengal Employees' Payment of Gratuity Ordinance 1971 which ousts by necessary implication, the jurisdiction of the Tribunal to adjudicate on the merits of the issue.
(5) Issue No. 5 cannot be adjudicated upon under the law as promotion is a management function.
(6) Issue No. 6 is directly and specifically covered by the Omnibus Engineering Tribunal Award made in 1948 as modified and/or replaced by another Omnibus award made in 1950 and that neither of such Awards has been terminated by either party to the adjudication.
4. Accordingly the petitioner-company prayed that the said preliminary point may be tried and determined first, before entering into the merits of the case. Subsequently the petitioner-com-pay filed a separate petition before the Tribunal for decision on the preliminary objection. The Tribunal allowed such prayer and heard the parties on such preliminary point. On the 16th August, 1972 the Tribunal passed an order on the preliminary objections raised by the respondent-company which is the subject-matter of challenge in this writ petition. By the said order the Tribunal rejected the preliminary objections raised on behalf of the petitioner-company. The first point raised by the respondent No. 3 before the Tribunal was that the wage settlement as well as the Omnibus Engineering Tribunal Awards, as relied upon by the company, relate to factory workers, if at all. It was urged that the reference before the Tribunal was concerned with the office staff employed in the Head Office of the company and as such the same did not apply to them. After detailed examination of this question, the Tribunal came to the conclusion that the office and the factory are both situated at 16, Taratola Road. If further held that there was no satisfactory evidence that the company has separate Head Office either in the same premises or elsewhere apart from the office situated in the factory premises itself. From the materials on record the Tribunal found itself unable to hold that there was anything as Head Office of the petitioner-company and held that the office is one attached to the said factory. Regarding the question whether there was anything known as Head Office in which a separate union of workers exists the Tribunal found in the negative. Next point which was urged before the Tribunal on behalf of the respondent No. 3 was that it was never a party to the settlement and the three Omnibus Tribunal Awards and, therefore, the workmen represented by it was not bound by the same. The Tribunal found that the respondent No. 3 was formed in the year 1964 whereas the awards were made in the years 1948, 1950 and 1958, and accordingly the question of the respondent No. 3 being a party to the said awards did not arise at all as it was not born when those awards were made. The Tribunal found that in all the three cases, regarding awards of 1948, 1950 and 1958, the disputes were essentially between the Engineering firms and their workmen represented by certain unions. The Tribunal found that it would be idle for any union to come forward and say at this stage that it was not a party to the said awards more so in the case of respondent No. 3 which was not born when these awards were made.
5. Next, regarding the question as to whom such 'awards bind, the Tribunal examined the provisions of Section 18(3) of the said Act and held that the combined effect of all the clauses of Section 18(3) of the said Act is that a settlement arrived at in the course of conciliation proceedings or the awards of adjudicatory bodies are binding not only on the workmen who are parties to the industrial disputes, i.e., who appeared before the concerning authorities but also on all the persons who are workmen of the establishment or part of the establishment to which the disputes relates as well as the workmen who were subsequently appointed in the establishment or part of the establishment. Accordingly the Tribunal did not accept the contention of the respondent No. 3 that the awards are not binding on them as they were not party thereto. So far as the award of 1958 is concerned it was submitted before the Tribunal that the petitioner-company was exempted from the award of 1958 till their financial position improved. The Tribunal was of the opinion that it did not mean that the petitioner-company was permanently exempted from the award of 1958 but it was kept in abeyance in respect of its application to the company till it was in a financial position to implement the same. It was held that the award was binding on them also as they were party to it.
6. So far as the 1969 settlement is concerned, it was observed that it was a tripartite settlement. Reference was made to the 'opting out' clause of that settlement, and it was observed that in pursuant to such clause the workmen of the petitioner-company opted out of above settlement. The Tribunal found that in spite of such opting out, the said agreement remained binding on the workmen except to that extent. Accordingly the Tribunal came to the following conclusion.
In the Omnibus Engineering Tribunal Award of 1948 the issues of 'scales of pay', 'D.A.', 'holidays', 'leave' and 'promotion' were dealt with. In the Omnibus Engineering Tribunal Award of 1950 the issues of scales of ' D.A.', 'holidays' and 'leave' were dealt with. In the Omnibus Engineering Tribunal Award of 1958 'grades and scales of pay' and 'D.A.' were dealt with. In the Engineering Industry-wise wage settlement the issue of 'scales of pay' and 'D.A.' were dealt with. So it appears that issues Nos. 1 and 2 in the present reference are covered by the Engineering Industry-wise Wage Settlement of 1969. Prior to that the said issues were covered by the Omnibus Engineering Tribunal Award of 1958. Before that the issue No, 3 and 5 were covered by the Omnibus Engineering Tribunal Award of 1948 and the issue No. 3 was modified or replaced by the Omnibus Engineering Tribunal Award of 1950 the issue No. 6, viz., 'Travelling expenses' enjoying holidays outside the Head Quarter was not covered by any award or wage settlement. Accordingly there is no doubt that the order of reference with regard to issue No. 6 is maintainable.
7. Therefore, it would appear that so far the preliminary objections raised by the petitioner-company was concerned, the same were upheld in part but on the next question, i.e., the question whether the three awards and the wage settlements were still binding on the workmen the Tribunal gave a finding adverse to the petitioner-company. After consideration of the provisions of Section 19 of the said Act and the said awards and settlement the Tribunal came to the conclusion that the charter of demands submitted by the respondent No. 3, the tripartite meetings held thereafter the tripartite meetings, i.e., the conciliation proceedings and non-raising of objection by the company in those meetings about the un maintainability of the demand in view of such awards, constitute sufficient notice of the intention of the workmen represented by the respondent No. 3 to terminate the existing pay scales and other terms and conditions of services. Regarding fixing of the date of two months notice prior to such termination as required by law, the Tribunal thought that there was no difficulty in fixing the date with reference to the termination of the awards in view of the two charter of demands. It held that the reference by the Government was made long after such demand. It further held that even if the second demand was treated as the notice of termination of the awards nothing stands in the way. Regarding the termination of the Engineering Industry-wise Wage Settlement of 1969 the Tribunal referred to the letter dated 24th October, 1970 written by the respondent No. 3 to the company and also stated that the workmen of the petitioner-company had opted out of the said settlement. Accordingly the Tribunal came 1o the following conclusion:
So analysing the position in the context of evidence and other facts and circumstances, as stated above, I am inclined to hold that the three awards of 1948, 1950 and 1958 were validly terminated by the workmen as contemplated in law. The wage settlement was never made applicable to the workmen who remained out of it, and in the eye of technicality the workmen also terminated the wage settlement according to law. Accordingly it cannot be said that the Omnibus Engineering Tribunal Awards of 1948, 1950 and 1958 are subsisting between the parties, and it cannot also be said that Engineering Industry were Wage Settlement is also subsisting between the parties.
Having thus found I hold that the order of reference is competent and maintainable in law.
The petitioner-company has come to this Court and challenged this finding.
8. Mr. A.K. Dutta learned advocate appearing in support of the Rule at the outset made it clear that so far as the issue No. 5 is concerned he was not suggesting that the Tribunal had no jurisdiction to consider the same. So far as the issue No. 4 in the reference is concerned, i.e., gratuity, though the jurisdiction of the Tribunal was specificalley challenged it appears admittedly that such point was not considered by the Tribunal. Accordingly I direct to the Tribunal to consider by way of preliminary issue, whether in view of the West Bengal Employees' Payment of Gratuity Ordinance, 1971 the jurisdiction of the Tribunal to consider on merits this issue is ousted as contended.
9. Subject to above Mr. Dutta made the following submissions. The charter of demand or the covering letter cannot be treated as notice of termination under Section 19 of the Act. In this context he relied on the decision of Supreme Court in the case of Employees of Tun gabhadra Industries v. Its Workmen : (1973)IILLJ283SC . He further submitted that there must be a notice of two months referrable to a particular date and in this context he also relied on the case of Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Workmen : (1968)ILLJ555SC . He further submitted that non-raising of the objection of the company or holding a bipartite or tripartite meetings cannot amount to termination of award or settlement. Next he submitted that though the tripartite settlement of 1969 by which the company opted out of the tripartite wage settlement of 1958 was noticed by the Tribunal, the Tribunal failed to appreciated the effect of such opting out. The said tripartite settlement of 1969 provided that it would be binding even after 31st December, 1972. It also provided that it would be binding even after 31st December, 1972, until two months notice in writing was given. He pointed out that if the charter of demands in the present case or the covering letters had specifically mentioned about an intention to terminate the awards or settlement that would have been a sufficient notice but in the present case there is no such intention expressed in the said charter of demands. In this context he referred to the decision in Howrah Municipality v. 2nd Industrial Tribunal, West Bengal 1965-I L.L.J. 382 and the case of Cochin State Power Light Company and Its Workmen 1964-II L.L.J. 100.
10. Mr. Ghose, learned advocate appearing on behalf of the workmen, firstly, referred to the letter dated 8th May, 1967 addressed to the petitioner-company. He submitted that the prayer for revision of wage scale and for a joint sitting, as made in the said letter, amounted to a notice of termination within the meaning of Section 19(6) of the said Act. Mr. Ghosh also referred to the second charter of demand dated 10th December, 1968 in support of his contention. He also submitted that the verbal discussion referred to in the said letter shows that the old settlement was given a go-bye. Mr. Ghosh also made an attempt to rely on a letter dated 12th October, 1971 a copy of which is annexed to the affidavit affirmed in opposition to the rule herein. In view of the fact that this letter did not form part of the records of the Tribunal, he admitted that he could not place any reliance on the same. In support of his contentions Mr. Ghosh relied on some decisions including the case of Workmen of Western India Match Co. Ltd. v. Western India Match Co. Ltd. reported in : (1962)ILLJ660SC .
11. The position in law regarding the termination of a previous award has been made clear by a judgment of the Supreme Court in case of Employees of Tungabhadra Industries Ltd. v. The Workmen and Anr. : (1973)IILLJ283SC . In this context it may be pointed out that this judgment was delivered on 4th May, 1973, i.e., subsequent to the order of the Tribunal which is challenged in this writ petition. In that case the Division Bench of the High Court of Andhra Pradesh relied upon three circumstances as indicating that the union had terminated the previous award. These circumstances were--(1) making of a charter of demand inconsistent with the directions contained in the previous award; (2) the workmen going on strike when the management did not accede to the demand and (3) the participation of the management in the conciliation proceeding initiated by concerned officers. The Supreme Court held that the approach made by the learned Judges of the Division Bench was erroneous. In that contest their Lordships observed as follows:
The Division Bench missed the important circumstance that the union must establish the point of time when the previous award has been terminated. Therefore, the question that should have been tackled was whether on March 8, 1968 when the charter of demands was submitted, there has been a proper termination of the previous award as required under Section 19(6). The fact that the workmen went on a strike subsequently may indicate that they are dissatisfied with the refusal of the management to accede to their demand. But that will not satisfy the requirements under Section 19(6). The fact that the appellant participated in the conciliation proceedings held by the Conciliation Officer, which is also on a subsequent date, is also of no importance.
12. In that case it was argued on be half of the workmen that the serving of a charter of demands clearly showed that the union had terminated the award. Their Lordships rejected this contention inasmuch as the same did not satisfy the requirements of Section 19(6). Referring to the decision in Management of Bangalore, Woollen, Cotton & Silk Mills Co. Ltd. case : (1968)ILLJ555SC , their Lordships observed that regarding the termination of an award it must be fixed with reference to a particular date so as to enable a Court to come to the conclusion that the party giving that intimation has expressed its intention to terminate the award. It was pointed out that such certainty regarding the date is quite essential because the period of two months, after the expiry of which the award ceases to be binding on the parties, will have to be reckoned from the date of such clear intimation regarding the termination of the award. It was also observed that though there was no particular form in which the notice of termination has to be given still it was absolutely essential that the intention to terminate the award with reference to a particular date must be made clear by the parties who set up a case of termination. With regard to the decision in Workmen of Western India Match Co. Ltd. v. Western India Match Co. Ltd. It was pointed out that in that case the Supreme Court did not accept the position that mere making of demands, without anything more, would amount to a termination of previous award.
13. As already pointed out in the present case so far as the awards are concerned, the Tribunal held that the charter of demands, bipartite meetings, tripartite meetings and non-raising of objection by the company in those meetings, constituted sufficient notice of the intention of the workmen represented by the union to terminate the exceeding (existing) pay-scale and other terms and conditions of service, In view of the decision of the Supreme Court in Tunga bhadra case, the Tribunal's decision on this point must be held to be wrong. The charter of demands might merely show that the workmen were dissatisfied with the condition of Service and wanted to negotiate for better terms and conditions but that by itself was not sufficient. In the present case also there is nothing in the charter of demands which could constitute a notice of termination of the awards. In Tungabhadra case also it was held that the tripartite meetings by themselves cannot amount to an intention to terminate the award. In my opinion, for similar reasons the bipartite meeting also do not by themselves amount to such notice of termination. So far as the non-raising of objection by company is concerned, a fortiori, mere non-raising of objection by the company cannot possibly amount to an intention on the part of the workmen to terminate the award. It is also to be pointed out that the period of two months is also important regarding the question of termination of the award. An arbitrary calculation based purely on the date of the charter of demands cannot be availed of in this connection. Accordingly the finding of the Tribunal regarding the termination of the awards cannot be sustained and the same must be quashed.
14. On the question of termination of the Engineering Industry-wise Wage Settlement the Tribunal pointed out that the workmen of J. Stone and Co., India Pvt. Ltd. opted out of the settlement and accordingly it was held by the Tribunal that the union had terminated the said wage settlement before it was made applicable to them. This according to the Tribunal, was sufficient indication about the termination of the wage settlement by the workmen of the company. It is unfortunate that the Tribunal proceeded only half way while examining this question. To find out whether a Industry-wise wage settlement of 1969 has been terminated or not, it relied on certain materials but did not consider the full effect of the same. The decision to opt out of the 1969 wage settlement was arrived at by a Tripartite Settlement dated 21st February, 1970. The recital of the said settlement referred to the Industry-wise tripartite settlement dated 27th September, 1969 and mentioned that the parties had concluded that the said settlement would not be applicable to them and accordingly under Clause 10 of the Industry-wise settlement the parties decided to opt out and arrive at a separate settlement, i.e., the Tripartite settlement of February, 1970. This tripartite settlement of 1970 was to be binding on the parties for a period of three years, i.e., from 1st January, 1970 to 31st December, 1972. It was further made clear that this tripartite settlement would continue to be binding even after the 31st December, 1972 until two months notice in writing: is given by either party signifying its intention to terminate the settlement as required under Section 19(6) of the said Act. It was further agreed that during this period of settlement, there will not be any economic demand from the workmen relating to the issues covered under this settlement. It is to be remembered that the impugned order of reference in this case was made on the 6th May, 1971, i.e. well within this period. The position, therefore, is that the Tribunal has come to a decision that 1969 Industry-wise wage settlement has been terminated in view of the fact that the parties have opted out of the said settlement. But the Tribunal has failed to consider with this opting out was made by the very tripartite settlement which was to remain in force at least up to 31st December, 1972. Therefore, the order of reference made on 6th May, 1971 could not be made within the period of this tripartite settlement.
15. Regarding cases cited by Mr. Ghosh, apart from the observations of Supreme Court in Tungabhadra case, it is clear that Western India Match Company case has no application in the facts of this case. In that case the distinguishing features were that a memorandum of settlement was signed by the parties to the effect that the revision of scale would be referred to the Tribunal. Further it was recorded in the recital to the memorandum that the entire dispute was to be referred to the Tribunal. In its written statement filed before the Tribunal in that case, the company clearly accepted the position that the Tribunal had the jurisdiction to deal with the issue of clearness allowance. Accordingly it was held that these circumstances precluded the company from objection to the jurisdiction of the Tribunal before the Supreme Court. Further, in its reply to the charter of demands sent on behalf of the union it was stated by the company that the previous settlement had not been validly terminated and in answer to that the union wrote saying that the various representation made by the union to the respondent and the presentation of the charter of demands amounted to a notice of termination of the settlement. It was observed the though no formal notice under Section 19(2) of the said Act had been given this letter of the union could itself be construed as notice within the meaning of the said Act. 'Thus it is clear that facts of the said case were completely different and that case cannot come to the assistance of Mr. Ghosh. Other decisions cited by Mr. Ghosh do not require independent examination in view of the several decisions of Supreme Court referred to above.
16. For the aforesaid reasons it is clear that the order of 5th Industrial Tribunal holding the reference competent and maintainable cannot stand so far as certain issues are concerned. The condition precedent to the exercise of power of issuing an order of reference was not satisfied. There are errors of law apparent on the face of the records. Accordingly, the said order of the Tribunal dated 16th August, 1972 must be quashed. However, I make it clear that so far as issue No. 4 is concerned it appears that this question was not considered by the Tribunal and the Tribunal failed to exercise its jurisdiction by not considering the said question. Accordingly I direct that the Tribunal should consider the objection regarding the issue No 4 raised by the petitioner-company as a preliminary issue. I further make it clear that so far as the issue No. 5, i.e., the question of promotion this would not be in any way be affected by my decision herein because as Mr. Dutta, in his usual fairness conceded before me, the question of jurisdiction of the Tribunal to consider the same cannot and does not arise but it is a matter to be considered on merits.
17. Subject to above observations I quash the order of the 5th Industrial Tribunal dated 16th August, 1972. The application is allowed and the Rule is made absolute to the extent indicated above. Each party do bear and pay their own costs.