# I959 Diwan Sugar(& General Mills (Private) Ltd v. Union of India

- **Citation:** [1959] Supp. 2 S.C.R. 136
- **Court:** Supreme Court of India
- **Decided:** 1956-08-28
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. SuBBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i959-diwan-sugar-general-mills-private-ltd-v-union-of-india-1592
- **Pages:** 14

## Headnote

Industrial Dispute-Reference-Government, if empowered to
transfer from one Tribunal to another-Award-If can be superseded
by fresh agreement-Disputes referred on fresh agreement-Reference
if bad-Industrial Disputes Act, r947 (r4 of r947), ss. 2(r) and
7A.
Industrial Disputes (Amendment and Miscellaneous Provisions) Act: r956 (36 of r956), s. 30-litdustrial Disputes (Amendment) Act, r957 (r8 of r957), s. 2.
Supreme Court-Scope of furisdiction vis-a-vis the Award of
Tribunal-Right of appeal-Constitution of India, Art. r36.
Aggrieved by an Award of r95r, the employees placed before
the Company a fresh charter of demands which was mutually
settled by a written agreement which provided, inter alia,
that the existing rate of dearness allowance should prevail
which was adjustable to any future substantial change in the
cost of living index of the working class.
As the cost of living
increased disputes arose, and in spite ol the said Award of r95r,
(2) S.C.R,
SUPREME COURT REPORTS
137
which was not terminated according to law, the dispute ansmg
1959
out of the said written agreement was referred for adjudication
by the Government to the Second Industrial Tribunal, Calcutta, Bengal Chemical &
in September, 1956. In April 1957, the Government transferred
Pliar'maceutical
the dispute from the Second Industrial Tribunal to the Fifth
Works Ltd.,
Industrial Tribunal. The Company, inter alia, contended that
Calcutta
the Government had no power to transfer the dispute from one
v.
Tribunal to another and that the reference was bad as the 1951
Their Workmen
Award had not been duly terminated.
The Industrial Disputes (Amendment and Miscellaneou•
Provisions) Act (36 of 1956) amending the Industrial Disputes
Act (14 of 1947) came into force on August 28, 1956, giving
authority to the Government to transfer a reference from one
Tribunal to another, which was followed by a further amending
Act, being Industrial Disputes (Amendment) Act (18 of 1957)
whereunder among other things a new definition of 'Tribunal'
was given, whereby the Industrial Tribunal constituted prior to
March Io, 1957, under s. 7A of Act 14 of 1947 was included.
Held, that as a result of the amendments to the Industrial
Disputes Act, 1947, the Government had authority to transfer a
case from one Tribunal to another.
'Tribunal' as defined by s. 2(r) of the Industrial Disputes
Act, 1947, a~amended by Act 36 of 1956, read with amending
Act 18 of 1957, empowers the Government to transfer a reference
from one Tribunal to another.
Where, in spite of a previous award, the employees after
raising fresh demands enter.ed into a new agreement with the
employer which started a fresh chapter regulating the relationship of the parties, the previous award, though not terminated in
accordance with the provisions of law, must be deemed to have
been superseded.
Held, further, that though Art. 136 of the Constitution is
couched in the widest terms and confers a discretionary power
(which cannot exhaustively be defined) on the Supreme Court to
grant special leave to appeal from the order of a tribunal, but it
is necessary for the Supreme Court to exercise its said discretionary jurisdiction only in cases (a) where there is a violation of
the principle of natural justice, (b) raises an important principle
of industrial law requiring elucidation and final decision by the
Supreme Court, or (c) discloses such other exceptional or special
circumstances which merit the final decision by the Supreme
Court. Such discretionary reserve power cannot obviously be so
construed as to confer a right of appeal to any party from the
decision of a Tribunal. where he has none under the law.
Industrial Disputes Act is intended to be a self-contained
one and it seeks to achieve social justice on the basis of collective
bargaining, conciliation and arbitration. Awards are given on
circumstances peculiar to each dispute and the Tribunals are to a
iS
138
SUPREME COURT REPORTS
[19_59] Supp.
1959
large extent free from restri

## Text

I959
Diwan Sugar(&..
General Mills
(Private) Ltd.
v.
Union of India
Wanchoo j.
'959
January 28.
136 SUPREME COURT REPORTS [1959] Supp.
prices in these three regions and the contention that
the factories in the other areas are left free to sell at
any price is specious and does not merit a moment's
consideration. We are therefore of opinion that in
effect the impugned notification brought about no
discrimination between different regions or between
producers and middlemen in view of what we have
said already in Re. l (b ), and consequently, it is not
necessary to consider the last part of the submission
under this head. There is in fact no discrimination by
the impugned notification and this contention fails on
that ground.
There is no force therefore in this petition and it is
hereby dismissed with costs.
Petition dismissed.
BENGAL CHEMICAL & PHARMACEUTICAL
WORKS LTD., CALCUTTA
v.
THEIR WORKMEN
(P. B. GAJENDRAGADKAR, A. K. SARKAR and
K. SuBBA RAo, JJ.)
Industrial Dispute-Reference-Government, if empowered to
transfer from one Tribunal to another-Award-If can be superseded
by fresh agreement-Disputes referred on fresh agreement-Reference
if bad-Industrial Disputes Act, r947 (r4 of r947), ss. 2(r) and
7A.
Industrial Disputes (Amendment and Miscellaneous Provisions) Act: r956 (36 of r956), s. 30-litdustrial Disputes (Amendment) Act, r957 (r8 of r957), s. 2.
Supreme Court-Scope of furisdiction vis-a-vis the Award of
Tribunal-Right of appeal-Constitution of India, Art. r36.
Aggrieved by an Award of r95r, the employees placed before
the Company a fresh charter of demands which was mutually
settled by a written agreement which provided, inter alia,
that the existing rate of dearness allowance should prevail
which was adjustable to any future substantial change in the
cost of living index of the working class.
As the cost of living
increased disputes arose, and in spite ol the said Award of r95r,
(2) S.C.R,
SUPREME COURT REPORTS
137
which was not terminated according to law, the dispute ansmg
1959
out of the said written agreement was referred for adjudication
by the Government to the Second Industrial Tribunal, Calcutta, Bengal Chemical &
in September, 1956. In April 1957, the Government transferred
Pliar'maceutical
the dispute from the Second Industrial Tribunal to the Fifth
Works Ltd.,
Industrial Tribunal. The Company, inter alia, contended that
Calcutta
the Government had no power to transfer the dispute from one
v.
Tribunal to another and that the reference was bad as the 1951
Their Workmen
Award had not been duly terminated.
The Industrial Disputes (Amendment and Miscellaneou•
Provisions) Act (36 of 1956) amending the Industrial Disputes
Act (14 of 1947) came into force on August 28, 1956, giving
authority to the Government to transfer a reference from one
Tribunal to another, which was followed by a further amending
Act, being Industrial Disputes (Amendment) Act (18 of 1957)
whereunder among other things a new definition of 'Tribunal'
was given, whereby the Industrial Tribunal constituted prior to
March Io, 1957, under s. 7A of Act 14 of 1947 was included.
Held, that as a result of the amendments to the Industrial
Disputes Act, 1947, the Government had authority to transfer a
case from one Tribunal to another.
'Tribunal' as defined by s. 2(r) of the Industrial Disputes
Act, 1947, a~amended by Act 36 of 1956, read with amending
Act 18 of 1957, empowers the Government to transfer a reference
from one Tribunal to another.
Where, in spite of a previous award, the employees after
raising fresh demands enter.ed into a new agreement with the
employer which started a fresh chapter regulating the relationship of the parties, the previous award, though not terminated in
accordance with the provisions of law, must be deemed to have
been superseded.
Held, further, that though Art. 136 of the Constitution is
couched in the widest terms and confers a discretionary power
(which cannot exhaustively be defined) on the Supreme Court to
grant special leave to appeal from the order of a tribunal, but it
is necessary for the Supreme Court to exercise its said discretionary jurisdiction only in cases (a) where there is a violation of
the principle of natural justice, (b) raises an important principle
of industrial law requiring elucidation and final decision by the
Supreme Court, or (c) discloses such other exceptional or special
circumstances which merit the final decision by the Supreme
Court. Such discretionary reserve power cannot obviously be so
construed as to confer a right of appeal to any party from the
decision of a Tribunal. where he has none under the law.
Industrial Disputes Act is intended to be a self-contained
one and it seeks to achieve social justice on the basis of collective
bargaining, conciliation and arbitration. Awards are given on
circumstances peculiar to each dispute and the Tribunals are to a
iS
138
SUPREME COURT REPORTS
[19_59] Supp.
1959
large extent free from restrictions of technical considerations
imposed on courts.
Bengal Chemi~al &-
A free and liberal exercise of the discretionary powers by
Pharmaceutical
the Supreme Court may materially affect the fundamental basis
•
Woi-ks Ltd.,
of the decision, namely, quick solution to such disputes to achieve
Calcutta
industrial peace.
v.
Where an Industrial Tribunal on the consideration of the
Their Workmen
f
entire material placed be ore it and having regard to the overall
picture, came to a conclusion of facts, the Supreme Court will not
interfere with such finding of fact nor will it be justified to
allow to make a new case for the first time before it.
Pritam Singh v. State of Madras, [1950) S.C.R. 453; Hem
Raj v. State of Ajmer, (1954) S.C.R. rr33 and Sadhu Singh v.
State of PEPSU, A.LR. 1954 S.C. 272, referred to.
CIVIL APPELATE JURISDICTION:
Civil Appeals Nos.
125 and 164 of 1958.
Appeals by special leave from the Award dated
August 26, 1957, of the Fifth Industrial Tribunal at
West Bengal in Case No. VIII-264/56.
S. G. Issacs and S. N. Mukherjee, for the Appellants in C. A. No. 125/58 and Respondents in C. A.
No. 164/58.
N. G. Chatterjee and Dipak Datta Ghoudhri, for the
Respondents in C. A. No. 125/58 and Appellants in
C. A. No. 164/58.
·
1959. January 28.
The Judgment of the Court
was delivered by
S!lbba Rao J.
SuBBA RAO, J.-These appeals are by Special Leave
from the Award by Shri G. Palit, Judge, Fifth Industrial Tribunal, West Bengal, in the matter of a dispute
- between Messrs.
Bengal Chemical & Pharmaceutical
Works Limited, Calcutta, and their employees, represented by Bengal
Chemical Mazdoor
Union,
Calcutta.
The Government of West Bengal by its order dated
September 13, 1956, referred the following dispute
between the parties referred to above to the Second
Industrial Tribunal, under s, 10 of the Industrial Disputes Act, 194 7 (Act 14 of 194 7), hereinafter referred
to as the Act. " Is the demand of the employees for
increase in Dearness Allowance justified ? If so, at
what rate?". The said Act was amended by the
(2) S.C.R.
SUPREME COURT REPORTS
139
Industrial Disputes (Amendment & Miscellaneous
1 959
Provisions) Act, 1956 (36 of 1956), which came into
-
f
A
6
0
A .1 9 1956
h Bengal Chemical &
Orce on
ugust 28, 195 .
n
pri
,
, t e Pharmaceutical
Government made an order transferring the said disworks Ltd.,
pute from the file of the Second Industrial Tribunal to
Calcutta
that of the Fifth Industrial Tribunal. The Fifth
v.
Industrial Tribll.llal, after making the necessary inTheir Workmen
quiry, made the award on August 26, 1957, and it was
Subba Rao J.
duly notified in the Calcutta Gazette on September
26, HJ57.
As a mistake had crept in, the award was
modified by the Tribunal by its order dated the 29th
November, 1957; and the modified award was published in the Calcutta Gazette on the 29th November,
1957.
Under the award t.he Tribunal held that there
was a rise in the cost of living index and that to neutralise the said rise the employees should get an increase of Rs. i in dearness allowance on the pay scale up
to Rs. 50 and Rs. 5 on the pay scale above Rs. 50. On
that basis the dearness allowance payable to the employees was worked out and awarded. The correctness
of the award is questioned ih these appeals. The
Company preferred Civil Appeal No. 125 of 1958
against the award in so far it was against it and the
Union preferred Civil Appeal No. 164 of 1958 in so far
it went against the employees. For convenience of
reference, the parties will be referred to in the course
of the judgment as the Company and the Union.
Learned Counsel for the Company raised before us
the following points: (1) The order dated April 9,
1957, made by the Government transferring the dispute from the file of the Second Industrial Tribunal to
that of the Fifth Industrial Tribunal was illegal ; (2)
the previous award made by the Tribunal between the
same parties on April 26, 1951, and confirmed by the
Labour Appellate Tribunal by its order dated August
30, 1951, had not been terminated in accordance with
the provisions of s. 19(6) of the Act and therefore the
present reference was bad in law and without jurisdiction ; (3) there was no change in the circumstances
obtaining at the time the previous award was made and
those prevailing at the time of the present reference as
to justify making out a new award; (4) the Tribunal
140
SUPREME COURT REPORTS
[1959] Supp.
r959
went wrong in taking the rise in the cost of living
Cl
. 1 , index between the yearr 1954 and 1957 instead of takBengaz
iemica ~ .
h fl
t
·
·
h ·
b
h
Pha,ma"utical mg t e uc uatmg rate m t e mdex etween t e date
wo,ks Ltd.,
of the earlier award, i.e., August 30, 1951, and the date
Calcutta
of the present reference in the year 1957; (5) the
v.
Tribunal went wrong in so far as it based its decision
Thefr Workmen on the Second Engineering Award of 1950 which was
already considered by the Tribunal in "its earlier award
Subba Rao ].
of the year 1951; and (6) in any event, in computing
the amount, the Tribunal applied wron_g criteria.
- \.Ye shall consider the above contentions seriatim.
But before doing so, it will be convenient to refer
briefly to the scope of jurisdiction of this Court under
Art. 136 of the Constitution vis-a-vis the awards of
Tribunals.
Article 136 of the Constitution does not
confer a right of appeal to any party from the decision of any tribunal, but it confers a discretionary
power on the Supreme Court to grant special leave to
appeal from the order of any tribunal in t.he territory
of India. It is implicit in the discretionary reserve
power that it cannoff be exhaustively defined. It
cannot obviously be so construed as to confer a right
to a party where he has none under the law. The
Industrial Disputes Act is intended to be a self-contained one and it seeks to achieve social justice on the
basis of collective bargaining, conciliation and arbitration.
Awards are given on circumstances peculiar to
each dispute and the tribunals are, to a large extent,
free from the restrictions of technical considerations
imposed on courts.
A free and liberal exercise of the
power under Art. 136 may materially affect the fundamental basis of such decisions, namely, quick solution
to such disputes to achieve industrial peace.
Though
Art. 136 is couched in widest terms, it is necessary for
this Court to exercise its discretionary jurisdiction
only in cases where awards are made in violation of
the prh:iciples of natural justice, causing substantial
and grave injustice to parties or raises an important
principle of industrial law requiring elucidation and
final decision by this Court or discloses such other
exceptional or special circumstances which merit the
consideration of this Court. The points raised by the
(2) S.C.R.
SUPREME COURT REPORTS
141
learned Counsel, except perhaps the first point, do not
r959
stand the test of any one of those principles.
C'
. 1
L
d C
1
h
Benga.l
.irmica &
earne
ounse for the Company,
owever, says Pharmaceutical
that, though the said principles might be applied at · works Ltd,
the time of granting leave, once leave is given no such
Calcutta
restrictions could be imposed or applied at the time of
v.
the final disposal of the appeal. The limits to the Their Workmen
exercise of the power under Art. 136 cannot be made
Subba Rao J.
to depend upon the appellant obtaining the special
leave of this Court, for two reasons, viz., (i) at that
stage the Court may not be in full possession of all
material circumstances to make up its mind and (ii)
the order is only an ex parte one made in the absence
of the respondent. The same principle should, therefore, be applied in exercising the power of interference
with the awards of tribunals irrespective of the fact
that the question arises at the time of granting special
leave or at the time the appeal is disposed of. It
would be illogical to apply two different standards at
two different stages of the same case. The same view
was expressed by this Court in Pritam Singh v. The
State of Madras (1), Hem Raj v. State of Ajmer(2) and
Sadhu Singh v. State of Pepsu (3).
The first question turns upon the construction of
the relevant provisions.of the Act as amended by the
Industrial Disputes (Amendment and Miscellaneous
Provisions) Act, 1956. The relevant provisions inserted by the Amending Act read as follows :
"Section 2(r) : 'Tribunal ' means an Industrial
Tribunal constituted under section 7 A."
"7 A. Tribunals.-(!) The appropriate Government may, by notification in the official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any
matter, whether specified in the Second Schedule or
the Third Schedule.
(2) A Tribm1al shall consist of one person only
to be appointed by the appropriate Government.
(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless-
(r) [1950] S.C.R. 453.
(2) [1954] S.C.R. II53.
(3) A.LR. 1954 S.C. 271.
142
SUPREME COURT REPORTS [1959] Supp.
r959
(a) he is, or has been, a Judge of a High Court;
Bengal Chemical &- or
Pha•maceutical
(b) he has held the office of the Chairman or any
wa"" Ltd.,·
other member of the Labour Appellate Tribunal con.
Calcutta
stituted under the Industial Disputes (Appellate Triv.
bunal) Act, 1950 (48 of 1950), or of any Tribunal, for
Their Workmen
· d f
1
h
a per10 o not ess t an two years.
Subba Rao;.
(4) The appropriate Government may, if it so
thinks fit, appoint two persons as assessors to ad vise
the Tribunal in the proceeding before it."
"33B. (1) The appropriate Government may, by
order in writing and for reasons to be stated therein,
withdraw any proceeding under this Act pending
before a Labour Court, Tribunal, or National Tribunal,
as the case may be, for the disposal of the proceeding
and the Labour Court, Tribunal or National Tribunal
to which the proceeding is so transferred may, subject
to special directions in the order of transfer, proceed
either de novo or from the stage at which it was so
transferred :
Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or
National Tribunal, the proceeding may also be transferred to a Labour Court."
Section 30 of the Amend,ing Act reads :
"If immediately before the commencement of
this Act, there is pending any proceeding in relation
to an industrial dispute before a Tribunal constituted
under the Industrial Disputes Act, 1947 (14 of 1947),
as in' force before such commencement, the dispute
may be adjudicated and the proceeding disposed of
by the Tribunal after such commencement, as if this
Act has not been passed."
Section 7, before ihe Amendment ran thus :
·
" The appropriate Government may constitute
one or more Industrial Tribunals for the adjudication
of industrial disputes in accordance with the provisions of this Act.
(2) A Tribunal shall consist of such number of
members as the appropriate Government thinks fit.
Where the Tribunal consists of two or more members,
one of them shall be appointed as chairman.
(2) S.C.R. SUPREME COURT REPORTS
143
(3) Every member of the Tribunal shall be an
x959
independent person,
.
Bengal -;;;:;mical &
(a) who IS or has been a Judge of a High Court
Pharmaceutical
or a District Judge, or
Works Ltd.,
(b) is qualified for appointment as ·a Judge of a
Calcutta
High Court :
v.
1 f Their Workmen
Provided that the appointment to a Tribuna o
any person not qualified under part (a) shall be made
subba Rao J.
in consultation with the High Court of the Province
in which the Tribunal has or is intended to have, its
usual place of sitting."
It will be seen from the aforesaid provisions that the
Amending Act, which came into force on August 28,
1956, changed the constitution of a tribunal to some
extent and conferred a power for the first time on the
Government to transfer a proceeding pending before
a tribunal to another tribunal; or in the case of a
proceeding under s. 33 or 33A pending before a tribunal to another tribunal or to a Labour Court.
Section 30 of the Amending Act expressly saves a pending proceeding before a tribunal constituted under the
Act before the Amending Act came into force and
directs that such dispute shall be adjudicated and the
proceeding disposed of by that tribunal after the
commencement of the Amending Act as if that Act
had not been passed.
A combined and fair reading
of the aforesaid provisions, it is argued, was that
s. 33B, inserted in the Act by the Amending Act, was
prospective in operation, i.e., it would apply only
to proceedings initiated in the tribunal constituted
under the amended Act and that proceedings pending
before the tribunals constituted under the Act before
the commencement of the Amending Act would be disposed of as if the Amending Act had not been passed.
The Parliament, presumably to clarify the position,
brought out another.Amending Act styled the Industrial Disputes (Amendment) Act, 1957 (18 of 1957),
whereunder among other things, a new definition of
" Tribunal" was given in substitution of that ins. 2(r)
of the Act.
The substituted definition reads :
"'TribuIJ.al' means an Industrial Tribunal constituted under section 7 A and includes an Industrial
144
SUPREME COURT REPORTS [1959] Supp.
'959
Tribunal constituted before the 10th day of March,
B
1-c,- .
1957, under this Act."
enga
1cm1cal (5..
I'ha,ma"utical Sub-section (2) of s. 1 of the Amending Act 18 of 1957
w,,k, Ltd.,
says that s. 2 shall be deemed to have come into force
Calcutta
on the 10th day.of March, 1957.
The result is that
v.
section 33B should be read along with the definition
Their Workmen of a "Tribunal" inserted by the Amendment Act 18
Subba Rao;.
of 1957, as if that definition was in the Act from
March 10, 1957. If that definition of a "Tribunal"
be read in place of the word " Tribunal" in s. 33B,
the relevant part of that sectiou reads:
"(1) The appropriate Government may, by order
in writ.ing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a
Tribunal constituted before the 10th day of March,
1957, and transfer the same to another Tribunal constituted under section 7 A of the Act."
So construed it follows that in respect of proceedings
pending in a tribunal constituted before the 10th day·
of March, 1957, the Government has the power to
transfer them from that date to any other tribunal.
It is said that this construction would make s. 30 of
the Amending Act 36 of 1956 otiose or nugatory.
That section contained only a saving clause and it
was not inserted in the Act ; it served its purpose,
and oven if it ceased to have any operative force after
the Amendment of 1957, that circumstance cannot
have any bearing on the impact of the amendment- of
the definition of " Tribunal " on the provisions of
s. 33B of the Act.
In the present case, the Government made the order of transfer on April 9, 1957, i.e.,
after s. 2 of Amendment Act 18 of 1957 was deemed
to have come into force. It must, therefore, be held
that the Government acted well within its powers in
transferring the dispute pending before the Second
Industrial Tribunal, to the Fifth Industrial Tribunal.
The second contention, namely, that the Award of
1951 was not terminated in accordance with law, does
not appear to have been pressed before the Tribunal.
The governing section is s. 19(6) which says :
"Notwithstanding the expiry of the period of
operation under sub-section (3), the award shall
(2) S.C.R. SUPREME COURT REPORTS
145
continue to be binding on the parties until a period of
I959
two months has elapsed from the date on which noticeB
1-Ch .
·
·
b
b
d b
l
d
h
enga
emical &
IS given
y any party
oun
y t 1e a war to t e Pharmaceutical
other party or parties intimating its intention to
works Ltd.,
terminate the award."
Calcutta
In the first written-statement filed by the Company
v.
d
Their Workmen
before the Tribunal, no plea was taken base
upon
s. 19(6) of the Act. In the second written-statement
Subba Rao J.
filed by the Company on December 20, 1956, a contention was raised to the effect that the award dated
June 21, 1951, was not terminated under s. 19(6) of
the Act, that the said award was binding between the
partfos and therefore the reference was bad in law.
Notwithstanding the said allegation, the award discloses that no issue was raised on that count and no
argument was advanced in support thereof.
This
attitude might have been adopted by the Company
either because it did not think fit to rely upon a technical point but had chosen to get a decision of the
Tribunal on merits, or it might be that there was no
basis for the contention, as the company might have
received notice under the said section. Though it
may not be quite relevant, it may be mentioned that
even in 1951 when the dispute between the parties
was referred to the Industrial Tribunal, though a
similar contention was open to the Company and
indeed was suggested by the Tribunal, it moved the
Tribunal to give an award on the merits of the matter.
If this plea had been seriously pressed, the Tribunal
would have raised a sepa;rate issue and the Union
would have been in a position to establish that notice
had been served on the Company as required by
s. 19(6) of the Act.
As the question raised depends
upon elucidation of further facts, we do not think that
we would be justified in allowing the Company to
raise the plea before us, and we, therefore, do not permit them to do so.
The fourth. point turns on the construction of the
terms of the agreement entered into ·between the
parties on September 15, 1954. The dispute between
the parties had an earlier origin and apart from the
19
146
SUPREME COURT REPORTS [1959] Supp.
•959
present reference, there were as many as four refer.
ences and four awards, and the last of them was dated
Bengal Chemfoal & April 3 1951. The Companv preferred an appeal
Phatmaceuticol
·
' h
d
h L b•
A
J]
T "b
w ,k Ltd.
agamst t at awar to t e
a our
ppe ate
n unal,
~a1:utta '
Calcutta, which, with some modification, confirmed
v.
the award of the Tribunal on Augu&t 30, 1957. That
Thei• Wo•kmen award as modified by the Appellate Tribunal fixed the
basic wages and the rate of dearness allowance paySubba Rao f.
able to the employees.
The employees were not satisfied with the a ward and they placed before the
Company a new charter of demands claiming higher
rates of dearness allowance and wages, but the dispute
was compromised and the parties entered into an agreement dated September 15, 1954, by virtue of which,
the Company introduced the incremental scale in the
wage structure. As regards the dearness allowance, it
was stated in cl. 11 of the agreement as follows :
" The existing rate of D. A. will prevail unless
there is a substantial change in the working class cost
of living index, in which case the rate will be suitably
adjusted."
On the construction of this clause depends the question of the Union's right to claim enhanced dearness
allowance. It is common case that if the cost of
living index in the year 1951 was taken as the basis,
there was a fall in the rate of working class cost of
living index in 1957. On the other hand, if the cost
of living index in 1954 was the criterion, there was a
substantial increase in the cost of living index in 1957.
The question, therefore, is.what did the parties intend
to agree by the aforesaid clause in the agreement. To
ascertain the intention of the parties, we should consider the circumstances under which the said agreement was entered into between the parties. Exhibit 6
is the said agreement. The preamble to the agreement
reads:
"The Company and the Union came to a settlement in respect of the Pay Scales and Grades in the
Charter of Demands dated 25th June, 1953, at the
intervention of Shri A. R. Ghosh, Asstt. Labour Commissioner during the Conciliation proceedings ending
on the 30th August, 1954."
(2) S.C.R.
SUPREME COURT REPORTS
147
The preamble indicates that the entire situation
r959
obtaining on the date of the agreement was reviewed
-
d
.
d
h
f h
l
Bengal Chemical &
an the parties agree to t e terms o t e sett ement
Pharmaceutical
mentioned therein. Under clause (1) of the agreement,
works Ltd.,
pay scale and grade as given in annexure B was
Calcutta
agreed upon for the time being for a period of three
v.
years as an experimental measure, to be reviewed, Their Workmen
modified or suspended or withdrawn after three years,
Subba Rao J.
depending upon the Company's business and financial
condition.
By cl. (2), the employees agreed not to
raise any dispute involving any further financial
burden on the Company during the next three years
in respect of pay scale and grade. Clauses (3) to (5)
deal with increments and the age of retirement.
Clause (6) provides for the piece-rated (contract)
workers in respect of their increments. Clause (7) is
in respect of increment for the daily-rated workers.
Clause (8), is in respect of the grade and scale of pay
and increments of Chemists, Engineers and Doctors,
etc. Clause (9) is to the effect that the employees who
would be made permanent thenceforward would be
grouped under two divisions for the purposes of giving
effect to the scale of pay. Clause (11) which we have
already extracted above relates to the dearness allowance. Clause (12) says "barring the question of bonus
for 1358 and 1359 B. S. the Union withdraws its claim
in respect of other items in the Charter of Demands
dated 25th June, 1953."
We have given the agreement in extenso only for
the purpose of showing that all the disputes between
the parties arising out of the charter of demands
dated June 25, 1953, were settled between them and
reduced to writing. The agreement was self-contained
and started a new chapter regulating the relationship
of the parties to the dispute in respect of matters
covered by it. The award must be dee"med to have
been superseded by the new agreement. In this context the crucial words " existing rate of D. A. ", on
which both the learned Counsel relied, could have
only one meaning. Do the words " existing rate "
refer to the date of the agreement or to the date of
the award ? It is true that the existing rate of D. A.
had its origin in the award and was made to prevail
•
148
SUPREME COURT REPORTS [1959] Supp ..
'959
under the agreement, that is to say that the rate was
l -
.
accepted by the parties as reasonable on the date of
Benga Chemical & h
'11 h
b
· I J
•
Pharmaceutical t e agreement, t1 t ere was a su stant1a c iange m
works Ltd..
the working class cost of living index. If the contenCalcutta
tion of the learned Counsel for the Company should
v.
prevail, the agreement would not be self-contained, but
Their Workmen only to be construed as modifying the earlier award to
Sttbba Rao J.
some extent. We are satisfied that in regard to matters
covered by it, the agreement replaced the earlier a ward
and therefore the date of the agreement is the crucial
one for ascertaining whether there was substantial
change in the working class cost of living index in the
year 1957.
We, therefore, reject this contention.
Contentions 3, 5 and 6 raise pure questions of fact.
The Tribunal, on the consideration of the entire material placed before jt, came to the conclusion that there
was change of circumstan.ces which entitled the employees to claim an increase in their dearn,ess allowance. It has also fixed the rate of increase in the
dearness allowance on the basis of the rise in the cost
of living index. In doing so, it also took into consideration the difficulties facing the industry and the
repercussion of the rise in the dearness allowance on
the consumers in general. Having regard to the overall picture, it came to the conclusion that full neutralisation of the deficiency as a result of rise in the cost
of living iudex by dearness allowance could not be
permitted and therefore allowed them only 75 per
cent. of the increase in the dearness allowance to
-which they would have otherwise been entitled on
the basis of the rise in the cost of living index. The
finding given by the Tribunal is one on fact and we
do not see any permissible ground for interference
with it in this appeal by special leave.
Before closing, one point strenuously pressed upon
us by the learned Counsel for the Company which is
really another attempt to attack the finding of fact
given by the Tribunal from different angle must be
mentioned ; it was that the Tribunal wrongly relied
upon Exhibit 3, corrected on the basis of the information given by the State Statistical Bureau, w·est Bengal, for ascertaining. the working class cost of living
index since August 1954 up to March 1957.
On the
•
(2) S.C.R. SUPREME COURT REPORTS
149
basis of Exhibit 3, the Tribunal held tha.t the working
x959
class cost of living index stood at 344·1 in August Bengal -;;:;mical &
1954 and it rose to 400•6 in May 1957, with the result
Pharmaceutical
that there was a rise of 56 points, a substantial rise in
Works Ltd.,
the cost of living index. Exhibit 3 certainly supports
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the finding of the Tribunal. The learned Counsel for
Their ;;orkmen
the Company points out with reference to the relevant
entries in the Monthly Statistical Digest, West BenSubba Rao J.
gal, that the said figures relate only to working class
menials and the corresponding entries in regard to the
working class cost of living index do not indicate so
·much increase as in the case of the menial class.
Learned Counsel has also taken us through the relevant figures.
The relevant entries in the Monthly
Statistical Digest were not filed before the Tribunal.
Indeed when the Union's witness, Shri Satyaranjan
Sen, was examined before the Tribunal, he was not
cross-examined with a view to elicit information that
Exhibit 3 did not relate to the working class cost of
living index.
When Shri Chatterjee, the Assistant
Manager of the Company, who was examined after
Shri Sen, gave evidence, he not only did not object to
the entries in Exhibit 3 but stated that he was not
aware of any substantial increase in the working class
cost of living index and complained that similar
entries for all the relevant_years had not been produced. Even before the Tribunal it does not appear
that any argument was advanced contesting the relevancy of Exhibit 3 on the ground that it did not refer
to the working class cost of living index. In the
circumstances, we do not think that we are justified
to allow the learned Counsel for the Company to
make out a new case for the first time before us, upsetting the Tribunal's basis for calculation and
involving further and different calculations.
In the result, we confirm the award of the Tribunal
and dismiss the appeal with costs.
The learned Counsel, appearing for the Union, did
not press the appeal No. 164 of 1958, filed by the
Union, and therefore it is also dismissed with costs.
Appeals dismissed.