Sankar Prasad Mitra, C.J.
1. This is an appeal from a judgment of Mr. Justice Debi Prasad Pal delivered on the 14th November, 1973, reported as National Tobacco Co. Ltd. v. Their Workmen (1973) 45 F.J.R. 359, on an application under Article 226 of the Constitution.
2. The facts briefly are that on the 21st July, 1961, the State Government had referred several issues including an issue as to the dearness allowance to the Fifth Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947.
3. On April 25, 1965, the Fifth Industrial Tribunal made its award. By the award the rate of dearness allowance fixed by the Government Notification in 1959 as per basis fixed by the Minimum Wage Committee and approved by the State Government and linked with the cost of living index was accepted by the Tribunal as fair and satisfactory. The Tribunal held that there was no justification for the demand of the workmen for revision.
4. On June 6, 1965, the Tribunal's award was published in the Calcutta Gazette. The workmen appealed against the award to the Supreme Court and obtained special leave under Article 136 of the Constitution. The Supreme Court delivered its judgment on October 18, 1968. It directed that the dearness allowance variation should be Re. 1 for every five points with 100 as the base for the year 1939 on parity with the award of the Third Major Engineering Tribunal in modification pf the order which the Fifth Industrial Tribunal had passed.
5. There were disputes between the employees' union and the employer as to the interpretation of the award in the light of the Supreme Court's judgment.
6. On the 27th March, 1969, the State Government made a reference under Section 36A of the Industrial Disputes Act, 1947, to the Fifth, Industrial Tribunal. Section 36A runs thus:
36-A. Power to remove difficulties.--(1) If, in the opinion of the appropriate Government any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit....
7. On the 30th April, 1970, the appellant filed its preliminary objection to the Tribunal's jurisdiction to hear the reference under Section 36A. The appellant's contention was that the reference was incompetent because there was no operative award for the purpose of interpretation under the said section.
8. On July 22, 1970, the Tribunal rejected the preliminary objection, The Tribunal heldthat it had jurisdiction to interpret the award, as modified by the Supreme Court.
9. On September 15, 1970, a writ application was made to this Court. A rule was issued and an interim order for stay was made.
10. On the 14th November, 1973, Mr. Justice Debi Prosad Paul discharged the rule. The present appeal, as we have stated, is directed against His Lordship's judgment.
11. Mr. P.K. Mukherjee, appearing for the appellant, has urged the following points:
(1) Having regard to the fact that the judgment of the Supreme Court cannot be an award of an Industrial Tribunal, the State Government had no jurisdiction to refer any question of interpretation of that judgment under Section 36A and as such the Tribunal had no jurisdiction to adjudicate on the basis of the said reference.
(2) When an appeal has been preferred under Article 136 of the Constitution to the Supreme Court, the judgment of the Supreme Court is the operative order and the Tribunal's award, having merged in the judgment of the Supreme Court, ceased to be an award operative under the law.
(3) The reference under Section 36A is invalid inasmuch as any doubt relating to the implementation or interpretation of the Supreme Court's order or judgment could only be resolved by the Supreme Court itself.
12. In our view, the above contentions of Mr. Mukherjee cannot be sustained. It is true that under Section 2(b) of the Industrial Disputes Act, 1947, an 'award' means, inter alia, an interim or a final determination of any industrial dispute or any question relating there to by an Industrial Tribunal. The Supreme Court initially has no jurisdiction to entertain or determine an industrial dispute but by granting special leave under Article 136 of the Constitution the Supreme Court may hear an appeal against an award passed by an Industrial Tribunal. An appeal being a rehearing of the case, the jurisdiction of the Supreme Court to decide the dispute in a just manner becomes co-extensive with that of the Tribunal to which the dispute was originally referred under Section 10 of the Industrial Disputes Act, 1947 : vide Jhagrakhan Collieries (P) Ltd. v. Central Government Industrial Tribunal-cum-Labour Court, Jabalpur (1974) 46 F.J.R. 348 at page 355.
13. In the instant case when the Supreme Court heard the appeal against the award and modified the award, the Supreme Court was exercising the powers of the Industrial Tribunal itself and the modified award became an ' award ' of the Tribunal within the meaning of Section 2(b) of the Industrial Disputes Act, 1947.
14. For the proposition we have laid down there is some support in the judgment, one of the Mysore High Court and the other to the Supreme Court. In Krishnarajendra Mills Workers' Union v. Assistant Labour Commissioner A.I.R. 1968 Mysore 49, it was contended that considering the definition of the word 'award' in Section 2(b) of the Industrial Disputes Act it would not be possible to bring an order passed in writ petition under the category of an award. The Mysore High Court at page 53 observed:.It must be conceded that the term 'award' as defined in this Act has a reference to the determination of an industrial dispute or of any question relation thereto by the Tribunals contemplated by the Act, viz., Labour Court, Industrial Tribunal or National Industrial Tribunal. There is no reference to the High Court for the obvious reason that the High Court is not one of the Tribunals constituted under the Act. It cannot be denied that the High Court has jurisdiction over all subordinate Tribunals either in appeal if one is provided for by the statute or under the writ jurisdiction as provided by the Constitution in Articles 226 and 227 of the Constitution. It is obvious from the proceedings in the writ petitions that the parties themselves prayed to the Court that the award dated 15th December, 1962, passed by the Industrial Tribunal should be quashed. There was a further prayer that the terms of the settlement as embodied in the memorandum of settlement filed before the Court, should be substituted in place of the award passed by the Industrial Tribunal. In law and in fact, the settlement arrived at by the parties was substituted by the order of this Court in place of the award and the only award which could result in an enforceable document is that embodied in the order of this Court.
15. We do not say that this decision directly covers the facts of the case before us but there is an indication of a principle of the law which, in our opinion, throws light on the conclusion that we should reach in the present case.
16. In Gojer Brothers v. Ratan Lal : 1SCR394 , a very well-known principle has been reiterated. The principle is that where the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate Court and not of the trial Court. The reason for this rule is that in such cases the decree of the trial Court is merged in the decree of the appellate Court.
17. The Supreme Court in this case has referred to its earlier judgment in State of Madras v. Madura Mills Co. Ltd. : 1SCR732 . In that case it was held that an order of assessment dated November 28, 1952, had not merged in the revisional order dated August 26, 1954, which the Deputy Commissioner of Commercial Taxes had passed ' because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revision '. In the Madura Mills' case the Supreme Court's attention was drawn also to Amritlal Bhojila's case reported in : 34ITR130(SC) . Ramaswami, J. speaking for the Supreme Court in Madura Mills's case, said (at pages 683-684):.But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.
18. The Supreme Court thought that this observation of Ramaswami, J. could not justify the view in Gojer Brothers' case : 1SCR394 , that there could be no merger of the decree passed by the trial Court in the decree of the High Court. In Amritlal Bhojilal's case, (supra) also the question of registration of the assessee firm was not before the Appellate Authority and, therefore, there could be no merger of the order of the Income-tax Officer in the appellate order.
19. In our case these difficulties do not exist. The decision of the Tribunal on the question of dearness allowance was modified by the Supreme Court's order. The operative award, therefore, in respect of the dearness allowance, was to be found in the Supreme Court's order and not in the Tribunal's award. In these premises, there was a merger of the Tribunal's award on dearness allowance in the Supreme Court's order which was an award, as already stated, within the meaning of the Industrial Disputes Act, 1947. On these facts, we have to hold that the State Government had the power to make a reference under Section 36A of the Industrial Disputes Act, 1947, for removal of difficulties and the order is unchallengeable.
20. In the result, this appeal is dismissed. Interim orders, if any, are vacated.
21. The records are to be sent back to the Tribunal forthwith. The Tribunal is directed to expedite the matter. We make no order as to costs.
S.K. Dutta, J.
1. I agree.