THE WORKMEN OF WESTERN INDIA MATCH CO. LTD. versus THE WESTERN INDIA MATCH CO. LTD.,

2 S.C.R. SUPREME COURT REPORTS

THE WORKMEN OF WESTERN INDIA MATCH CO. LTD.

THE WESTERN INDIA MATCH CO. LTD.,

(A. K. SARKAR, K. SuBBA RAO and J. R. MUDHOLKAR, JJ.)

1 ndustrial Dispute-Scale bf pay-Oondition of aervice ') -Dearness allowance-Employees of sales office and factory, ·• if cojtld be equated - Earlier settlement-Termi..ation of-Oharter of demand, if co·ald be treated a• notice of termination of previous settlement-Industrial DispvJte Act, 1947(14 of 1947), 8. 19( 2).

R the respondent company has got factory, with an office ttachcd thereto, in Alambazar suburb ot Calcutta and also has its sale~ office in the commercial area of Calcutta Without first giving formal notice under s. 19(2) of the Industrial Disputes Act, terminating an earlier settlement, the Union made fresh demands, contained in cliiirter of demands, inter alia for the enhancement of dearness allow-}' ance, alteration of the ba~is of computing it and the revision of pay scale alleging that what they get is much below what corresponding employees at the sales office get and . that the . present rates are inadequate in view of the rise in cost of living.

The dispute relating to dearness allowance alone was first referred to the Tribunal but later the dispute relating to grades and scale of pay was also referred to the same Tribu• nal.. The Tribunal after overruling the preliminary objection • of the company that it had no jurisdiction to proceed wtih the reference because no notice terminating the settlement as cont~mplateol by s. 19(2) of the Act was given by the work-men, found that the employees were not entitled to higher dearness allowance or to the alteration of the. basis of comp-utation of the dearness allowance, but there has been change in the circumstances which justified revision of the scale of

pay.

Held, (1) that when during the pendency of negotia-tions the Union by letter had asked the company to treat the charter of demand as notice under s. 19(2) of the Act '<( without first terminating an earlier settlement under an award and the compa.ny had agreed to refer the mat\er i!l dispute

19fB A;f'il 11.

Tiii ti'-flmtn of W 1st"n atd1 Co. Lid, .. 1 li1 W ultrn Indio Jf okh Co. Lid

to ~he adjudication of tribunal, the question of formal notice under s. 19(2) of the Act was immaterial for the presentation of the charter of demand followed by 'the letter amounted to notice of termination of settlement .

· (2) that the members of Unior. like the one of employees of the respondent's factory have been dealt with by the compa.ny on different footing from the employees of s~les o~ftcc 1n Calcuua, the former being employees of an eng1neer1ng concern and the latter of mercantile one, who arc governed by the recommendation of the Bengal Chamber of Comrncrce and, therefore, the case of the factory employees / cannot be equated with that or the sales office ernployecs. The facrory employees cannot, as of right, demand that the 4brnefit of the rates fixed by the Bengal Chamber of Com· mcrce be also given to them, because the rates were not intended to be applied to them.

C/erl:s of Ga/cnlla Traminays v. Galmtta Tramwnys Co. J,td. [1956) S.C.R. i22, applied. '-'

(3) that there is no valid rea•on for compelling employers to offer uniform tcrn1s of employment to their employees working in different establishments hecausc variou5 considt>ration:-. must enter into the que1tion ~./.... such as the value of their work to the employer, the CmJr toyer's ability tn pay, the cost of living, the availability of persons for doing the particular kind of work and so on. The action of an employers who docs not offer uniform condition of service to all its employrcs doing work which, broadly speaking may be called similar, can not be regarded as discritninatory or breach of any principle of industrial law.(4) that the Industrial Tribunal in refusing to extend to the employees of the respondent in the fartory in Alamba· zar benefit of dearness allowance formulated by the Bengal Chamber of Commerce has net contravened any principle of natnral justice or any important principle of industrial law. Even assuming that an Industrial Tribunal has exercised its discretion wrongly in not awarding uniform • dearness allnwance to all the employees of the same employer working in different establishments, that is no ground for interf<rence under Art. 136.

State of Madl1ya Pr<l<luh v. .. c. M~nmi:ar (195">) s .. C.R. and Ilrngal Chemical & l'!tarmaceutacal JI· orks f,td. Ga/r.utia V• Their 11'orln1rn, [1959) S. C.R. 136, ralied on.

2 S.C.R. SUPREME COURT REPORTS

(5) that an award of an Industrial Tribunal cannot ordinarily be revised unless there is circumstances ; but ) hfcre, .therhe hasdbec;n adchange of cir~umstahnces bTech~use. cost ~ o IiVIng as m1tte 1y gone up since t en. is is so notorious fact that court is entitled to take notice of it. The object of awarding d~arness allowance is to neutralise, at least partially, the Jise in the cost of living and in the circumstances the fact01y employees are entitled to have the old basis revised.

Burn & Co. ltd. v. Their Workmen, [1956] S. C.R.

781, referred to.

ClvIL APPELLATE JuRISDICTICN : Civil Appeal No. 429 of 1961.

Appeal by special leave from the Award dated September 16, 1958, of the Fourth Industrial Tribunal,-West Bengal, in Cases Nos. VIII-II of 1958.

N. 0. GhaUerjee, A. N. Sinha andDipak Dutta

Choudhri for the Appellants.

O. K. Dapht,ary,

Solicitor-General of India,

O. K. Dapht,ary, Solicitor-General B. Sen and B. N. Ghosh for the respondent.

1962. April 11. The Judgment of the Court was delivered by

MuDHOLKAR, J.-This is an appeal by special leaV'e against an award made by the court of In·

dustrial Tribunal, West Bengal, Calcutta.

The relevant facts are these: The Western

' India Match Co., (respondent) has got factory -, with an office attached thereto in Alambazar, which is suburb of Calcutta. It has also got sales office at Calcutta which is situate in the commer-cial.area. Certain disputes arose between the fac· tory employees and the respondent, pursuant upon 1 the' presentation of charter of demands by them " to the respondent on January 25, 1957. These demands were seven in number. The demands ~, included enhancement of the dearness allowance ' and alteration of the basis of computing it They

n.w .. -o1 W eshrn M atilt Co • Ud. v •• Tie w .. ,.,. lMio Maleh Co. Lid.

.. T Iii ff' 1st1rn lndi• MGl<AC•.Ltd.

also included demand for the revision of pay scales. The respondent was unwilling to concede the demands and thereupon the appellant-union approached the Labour Commissioner, West Bengal. Apparently on hie suggestion certain conferences were thereafter held between the parties and the Conciliation Officer with view to arrive at settle-ment. During those conferences certain counter proposals were put forward by the respondent but they were not accepted by tho union. Eventually the Government of West Bengal by its order dated January 14, 1958 referred the dispute rela.tin~ to ,· the dearness allowance alone to tho Fourth Indus-trial Tribunal at Calcutta but not the other dispu-te3. Conciliation proceedings regarding other dis-putes were resumed after the aforesaid reference was made aud on May 23, 1958 settlement was reached between the Union and the respondent on a.II issues excepting the one relating to grades and scales of pay. It was a.greed that this iBSue be referred for adjudication to the same tribunal which was dealing with the question of dearness allow- 't a.nee. Upon this the Government of West Bengal referred that iBSue to the Fourth Industrial Tribu-nal, West Bengal by order dated June 3, 1958.Before dealing with the contentions of the parties it would be desirable to set out some more fa.eta. The Western India Match Co., has got fac-tories not only at Alambazar but also at Bareilley in Uttar Pradesh, Ambernath in Maharashtra, Tiruvottiyur in Madras and at Port Blair. The l!'actory at Alambaza.r was established in tho year 1930. Besides theae factories the respondent maintains separate sales offices at various places in India to push sales and execute orders. One of suoh sales offices is located in the oity of Cal-cutta.

At the time of the reference I, 866 persons ,

were employed in the factory at Alamba.za.r.

Out

2 S.C.R.

of them 1,504 were daily-rated or piece-rated em-ployees and the remaining 362 were monthly-rated employees. Amongst them 27 were officers, 67 clerks and 32 supervisors. The rest were bearers, watchmen, malis, fitters etc. Apart from the offic-ers, all the monthly-rated employees admittedly fall within the definition of workers .under the fac-tories· Act.

In the year 1946 union called the Wimco \ Mazdoor Union was formed comprising only of the \ daily-rated and piece-rated workers. This union was given recognition by the respondent. In the year 1950 another union called the Wimco Employ-ees' Union cC;mprising solely of the monthly-rated employees, other than officers, was formed and was du~y recognised by the respondent. One of the conditions under which the recognition was given was that its membership should consist only of mon-thly-rated employees of the factory except the officers.

Shortly after the recognition of this Union it entered into an agreement with the management ofthe respondent company whereby the scales of ·pay, dearness allowance and various conditions of service of the monthly paid employees at Alam-ba'zar factory were settled. The date of this agreement is September 29, 1951.

• Certain . disputes arose between the Union and · i the. respondent in the year 1954 which were refer-red by the Government of Wflst Bengal by its order dated September 1, 1954 to the Second Industrial Tribunal, West Bengal, for adjudication. In the course of the proceedings, however, an agreement was reached between the appellant-union and the ( respondent on April 29, 1955. Eventually on Sep-tember 15, 191)5 an award made in pursuance of -\' the settlement arrived at was published in the Cal-. cutta Gazette. It may be mentioned that the

1'he Work- of Waslern ,uatch Co. Lid. •• Thi Wesfam In.di• Match Co. Lid, Mudholkat J,

Tire W or.lmt11 of W11ttrn Mo/ell Co. Ltd. v. Tiu W1mrn lt1cl1a M •Ith Co. LU. --

settlement related to various matters relating to

the conditk>ns of service of employees including pay and dearni:-ss allowance. Further, under this ,.agreement the production bonus which the monthly > · rated workmen receh,ed was merged in their basic pay. The aforesaid award was terminable upon giving two months' notice commencing after Decem· her 31, 1956. Without giving formal notice terminating the agreement the appellant-union made fresh demands on January 25, 1957 pertain-ing to the same matters which were oovered by • that agreement. ;

What happened thereafter has already been indicated by us above.

The main ground on which the appellant·

union sought revision of the previous award and the alteration of the basis of comput&\ion of the dearneBB allowance and alteration of the scales of pay is that what the respondent is paying to the factory employees works out to something very much below what corresponding employees st the sales office get. Tbis, they 11ay, is unfair. The second ground on which their claim with respect to these two matters is based is that other com-parable concerns give better terms to their emplo-yees than the respondent. The third ia that the present rates are inadequate in view of the rise in cost of living and the fourth, that the respondent in making large profits anri can easily afford an upward revision in dea.rncss allowance and sea.lea of pay.

On behalf of the respondent preliminary

objection was taken to the effect that the tribunal had no jurisdiction to proceed with the reference because no notice terminating the settlement as contemplated by s. 19, sub-s. 2 of the Industrial Disputoe Act, 194 7 was given by the appellant. On ~ merib! its contentions were :

2 S.C.R. SUPREME COURT REPORTS

(I) that the oonditiilns of service of employees of the sales office are different from those working in the factory;

(2) thll.t there has been n'l material change of circumstances since the making of the previous award justifying any revision of the scales on the lines suggested;

{3) that the conditions of service to soales of pay and dearness allowance prevailing in the factory at Alambazar are as good, if no better, than those of employees of other co·1cerns such as Bridge ,'It_ Rnof C0 , Imperial Chemical Indus-tr;es, Hindu;than Lever and ]\[arshall & Sons which are in fact much larger concerns · ar.d c>innot be compared with the respondent-com-pany;

( 4) that t.he respondent has not the capa·

city to pay higher dearness allowance to its monthly-rated employees in the factory due to increase in the cost of production, labour charges, <:nhancement of excise duty and keen com petition of the products which have together resn Jted in reducing the percentage of profits

. The preliminary objection was overruled by the Tribunal. It, howevrr, held that the employees at the factory were not enti"tled to higher dearness allowance or to the alteration of the basis of compu-tation of the dearnPss allowance but that there has been chang~ in the circumstances which justified revision in the scales of pay. The Tribunal accep-• ted the contention and adopted the revised males ( of pay offered by the respondent.company to the app<'lllant-union during the conciliation proceedings.

Mr. B. Sen for the respondent.company reite-rates the objection based on s. 19(2) of the Indus-t.iial Disp1:tes Act, 1947, That provision is to the

Thi Workm~n of· We,teTn Match Ce. Lrrl. v. The West1rn l11di .. Maleh Co· f,td. M udho/kar .'!.

-Th# JV orknun of W1rlnn M otch C4. Ud, •• Th6 W111,,n /,,di• JI ••ch C.. LM. JI aiMlloar J.

effect that settlement arrived at between the employer and the employees shall be binding for Buch period as is agree'.! upon by them and if no such period is agreed upon for period of six months from the date of the settlement and shall con-tinue to be binding on thl'm after expiry of that period until the expiry of two months from the date on which notic" in writing of his intention to ter-minate the settlement is given by one of the parties to the other party. Unquestionably the parties had arrived at settlement on April 29, 1955 relating, amongst other things, to 'dearness allowance and the saales of pay and no formal notice as contemplated by sub s. (2) of s. 19 was given. In our opinion, however, it is not open to the respondent-company to raise this contention in so far as revision of pay scales is concerned because in the memorandum of settlement May 23, 1958 signed by the representatives of tho parties to this appeal it is clearly provided that the revision of \ scales of pay be referred for adjudicat.ion to the same Industrial Tribunal which wa~ dealing with the question of dearness allowance. Besides, that, this memorandum contains the following recital:

"Parties were met jointly on several occa sions as a. result of which the entire dispute, except the issues of (I) Dearness allowance (which has already been referred to the Fourth Indu•trial Tribunal for adjudication) and (2) }ievision of scalE>s of pay, has been settled on the following terms; ......... "

This recital shows that the respondent was agreeable

to refer to the Tribunal not only the issue relating to revision of pay scales but also that dealing with dearness allowance. Further, in para. 37 of ita written statement the r<'spondent-company clearly accepted the position that the Tribunal had jurisdic- • tion to deal with the issue of dearness allowance. Thie circumstance precludes the responc!ent:from

2 S.C.R. SUPREME COURT REPORTS

1 now objeoting to the jurisdiction of the Tribunal, .;i. part from that we may point out that in its reply .; dated Maroh 29, 1957 to the charter of demands sent.on behalf of the appellant-union it was stated that the previous settlement had not been validly terminated and in answer to that the .General ::iecre· tary. of the Union wrote on April 8, 1957 sayi!lg that various representations made by the union to the respondent and the presentation of the charter of ) demands amounts to notice of termination of the .,. settlement. Thus, though no formal notice under s. 19(2) was. given this letter can itself be construed as notice within the meaning of that provision. It may: be noted that the representation was made long after tho expiry of two mon1hs from this date. For these reasons we overrule the contention of Mr. Sen., Now, coming to the merits, the main point urged by Mr. Chatterjee on bL·half of the union i• J that there has been discrimination between the ' employees of the respondent in the Alam bazar factory and their counterparts i)i the sales office in Calcutta. According to him eve11 though these per-sons dJ the same kind of work they are given diffe-rent grades and scales of pay and different scales of dearness allowance He contends that 1 bci cm ployees of the same employer doing tlie same 11 ind of work , in the same city 011ght not to be differentiated in this manner and that decision of the Tribunal denier! ; the members of the appellant-union equality with their counterp:irts in the sales offiee and is contrary to the principles of industrial law we may, however, point out that the appellant union claimed party with the sales office employees only in the matter t of dearness allowance and have referred to the exis-tence of different pay scales in the sales office only in support of their claim fol" an upward revision of -<the present pay scales. It io, therefore, not open to learned counsel now to urge that the p1y scales also

The Workmen of' '\-\T estern Match Co. L•d

v. The Western Indi'J Match Co. Ltd. M udholkar J.

TM Work,,,m•f Wut•rn MGZth •. Lid ... ~ Wut•'" fnd;tJ JI 01<h Co. Lt,, JI""""' .. ' J.

36 SUPREME OOURT REPORTS [1963)

should be same for the factory employees as for the sales office employees. We shall, therefor(', consider the argument based on the ground of unwarranted discrimination only in so far as it relates to the question of dearneBB allowance.

For considering this argnment i' is desirable to bear in mind the history of industri!ll adjudica-tion in Bengal and also the precise reason why different basis for computing dearness allowance is , applied to the respondent employees in the sales ~· office from that applied to its factory employees. Towards the end of tho year 1945 the Bengal Cham-ber of Commerce made an enquiry as to the cost of living of the clerical staff employed in mercantile firms in the city of Calcutta. On tho basis of that enquiry it fixed certain amount as dearnesH allo-wance for these employees. It also fixed for the employees what it called the middle class cost of living index an<i recommended acceptance of its ~ findings to its constituent members. Mr. Sen stated · that the respondent's sales office is member of the Bengal Chamber of Commerce but its factory in Alambazar is not member of tho Chamber of Com-merce anrl this waa not controverted by Mr. Chat-terjee.

In the year 1948 disputes arose between the

employees and employers of engineering firms in , Calcutta as well as employees and employers of , mercantile concerns in Calcutta. These disputes were referred to separate Industrial Tribunals. The first Engineering Tribunal waa appointed on July 3, I !J48 to which disput!'S rPlating to 119 companies, inoluding the respondent's factory, were referred. The award made by it was eventually published in ' the Calcutta Gazette and effect was given to it. Further disputes arose between some engineerin~ concerns and their !'mployees. These were referred

to 8econd Engineering Tribunal on August 31, 1950

and effect was given to its award. It would, there-·~ fore, appear that members of union like the. one ; of em,iloyees of the respondent's factory at Alam-7 bazar have been dealt with on different footing from the employees of sales office in C~lcutta, the former being employees o'f an engineering concern and the latter of menantile one. It was, however, contended before us that they are not two· indepen-dent tJnderta.kings but parts of the same one, that , is, Western India Match Co., and, thereforP, in the

) matter of payment of dearness allowance at least

. .,_ they should be dealt with on the same footing.

As we have already pointed out the employees in the sales office are governed by the recommenda-tions of the Bengal Chamber of Commerce which the respondent was more or less bound to accept to be in line with other similar establishments and, therefore, the case of the factory employees cannot be equated with that of the sales office employees. In Qlerks of Calcutta Tramways v. Calcutta 'l'ram-~ ways Co. Ltd.(1) the clerical staff of the Calcutt& Tramways claimed that since they belonged to the mid<1.le class they should be paid dearness allowance on the basis of the finding of the Bengal Chamber of Commerce. Their plea was nagatived by this Court on the ground that in the matter of grant ·of , dearness allowance no hard and fast rule is appli-cable to all kinds of employees, that there are diffe-

> rent grades amongst middle ·classess and the clerical

, staff of the Calcutta Tramways cannot claim to be · awarded dearness allowance at the rates fixed by the Bengal Chamber of Commerce for mercantile firms. It may further be pointed out that . the fac-tory employees cannot all claim to belong to the . middle class because admittedly two-thirds of them 7 belong to what is known as the subordinate staff.

It may be that the clerical staff both in

, --Oaloutta proper and in Ala.mbazar doe11 work whieh (I) (1956] S.C.R. 772.

116! Thi W ork1111n •I Westlrn Match Oo. Ltd. y, TM W6sf1111 lndi•· M ateh Cc. Ltd. Jlwiholkar J.

7h1 W01k111111 of Western ,lf •·ch Co. [Ad Tl~ W1stcrn '· b11/i3 Match Co, Ltd, Mudholk" J.

ono set of clerks cloes iH not the same as that of the other set. Cl•,l'ks in the factories hrwe to do •. i·ork in connection with tho manufacturing processeR i in the factory, the !about· cmploJ ed in the facto1y, raw materials arriving in the factory. the finished product8 of the factory and so on a.nd so forth. The work which the clerical "taff in the sales office has t.o do is connected with the marketing of the finished J roduct, dealing with other firms, carrying on <:Orrespondfncc with the head office and other units and so on and so forth. There is no identity , in the work of tho two sets of clerical staff though • there may be similarity. It is said that tho work they do carries more responsibility. That may or may not be so but clearly if the work rnrh set of employees does is not identical, it would b<: open to the cmployl'f to place different values on them. The same thing could be said ah<ut the work of the subordinate staff. If under these cirrnmstances the respondent agreed to adopt difft·rent mode of computation of dearness allowanco in respect of \ the employees in the sales office from that offered by it to th0 rmploJees in the factory, could it be said that thic> respondent was making invidious distinctiou? The sales office being mercantile office the respondent had to fall in line with other similar establishments a.nd pay to the employees in the Eales office the same dea.rneEs allowance as other mercantile firms wero paying to their employees. In the cirlumot~nces the factory employees cannot as of right demand that the ~ benefit of the rates fixed by the BPngal Chamber of Commerce be also given to them though those rates were not intended to be applied to them.

Moreover it has to be borne in mind that in the previous settlemf'nt the appellant-union was content to accept the working class cost of Jiving~ index as the basis for determining their dearness

2 S.C.R. -SUPREME COURT REPORTS

allowanc3 and even in their present demands they

~ have alternatively Mggested that the same be , adopte<l with certain variations in the rates in three slabs.

It iS' true that the employees in Alambazar

as well as in Ci!.lcutta are living within the limits of the Corporation of Calcutta. But that circums-tance thongh relevant is not by itself sufficient to "' justify payment to them of the same rate of dearness ] allowance as the sales office employees. We oannot • ignore the fact that the employees of other factories situate in that area are not pa.id dearness allowance at the rates formulated by the Benga.1 Chamber of Commerce and, therefore, if those fates are' adopted by the respondent with respect to the factory emp-loyees tl:ie existing industrial peace in that region may be destroyed. The tribunal must, therefore, he said to have exercised its discretion properly in not· acceding to the appellant's demand in this

i resrieot.

' We may also point out that the employees in

the faotory have been recruited on terms and con-ditions which from the beginning are different from those that govern the sales office employees. It is not ' disputed that certain benefits such as those , relating to rations, free quarters, gratuity etc., which are extended to the factory employees are

> not extended to the sales office employees. What • is said, however, is that the sum total of these con· sidered along with the pay and dearness allowance of the factory employees still place them at dis-advantage as compared to the sales office employees. It is true that the sales office employees are, by and · large, in comparatively better position; but that t again is due to the fact that recruitments in the two . establishments have all along been made on diffe· ~rent terms and conditions.

We do not think that there is any valid reason

for compelling employers to offer uniform term.ii of

Th. Work'"'" •f W 1stern .111. •leh c,. Ltd. •• Tl" W .,,,.,,,, lndi• JI at ch Co, Ltd. JIUtJutw J,

Th• lF erimtfl of Wtsrtn• 1fotch Co. LUI. .. Th, Wcr.e1n /,.dia Makh Co. LUI Mudholka• J.

40 SUPRE.ME COURT REl'ORTS [1963]

employment to their employees working in different • establishments because various considerations must ' enter into the question such as the value of their work to the employer, the employei's ability to pay, the cost of living, tho 11.vailability of persons for doing the particular kind of work and so on. Indeed, the Minimum Wages Act itself proceeds on the basis that the employer h11s large di•cretion in so far as the most important condition of service is concerned, that is, pay, so long a.t it is not below : the miniro'um wage prescribed. It is a. well known ; fact, that the Hggest, employer, the State, does not offer uniform conditions of service to a.II cmployet>s doing work which, broadly speaking, mRy be ca.lied similar. Thus to take ont1 illustmtion, the clerical staff and the menial staff-now called class IV staff-employed in the Secretariat are go ;erncd by terms and conditions of service different from those prevailing in other offices such as those under the Delhi Administration. High powered Pay Commis. \ sions ban• not regarded this as discriminatory treat· ment or breach of principle of industrial law. In the State of ;lfa.dhya Prude.sh v. G.C. Man<iawar (') it was contended on behalf of tho clerical staff in the State ol Madhya. l'ra.desh that they should be paid dearness allowance a.t the same r11.te a.s the Central Government employees posted in Madhya .t'radesh on the ground that they were doing similar work a.t the same place. 'J heir contention was, • however, rejected by this Court. •

Looking at the mstlcr thus we cannot say that

the Industrial Tribunal in refusing to extend to the employees of the respondent in the factory in Alam-ba.za.r the benefit of dearness a.llowa.nce formulated ·by the Benga.l Chamber of Commerce has contra.ve- ' ned any prinoiple of natural justice or any important pdnoiple of industrial la.w. ID this connection we~

(I) (J9S5) I S,C,R. 599.

2 s.c.R. SUPREME COURT REPORTS

m~y refer to the. decision in Bengal Chemic~~ '!" Pharmaceutical Works Ltd., Calcutta v. '1 heir ; Workmen (1) where Gajendragadkar, J., who spoke , fur the Court observed:

"Though Article 136 is couched in widest

terms, it is necessary for this Court to exercise its ctiscretionary jurisdiction only in cases wbure awards are made in violation of princi-ples of natural justice, causing substantial and grave injustice to parties or rairns an impor-tant principle of industrial law requiring eluci-dation and finoil decision by this Court or dis-closes such other exceptional or special cir-cumstances which merit the consideration of this Court."

Therefore, even assuming that an Industrial Tribu-

nal has exercised its discretion wrongly in not awar-ding uniform dearness allowance to all the emp-loyees of the scime employer but who are working .., in different establishments, that is no ground for or interference under Art. 136.

The second ground on which the 'lribunal's

decision regarding dearn,,ss allowance is challenged is that even at the stage of giving evidence Mr. Wasmouth, the General Manager of the respon-dent s11,id that the respondent still sticks to the ; offer regarding dearness allowance but despite that the Tribunal did not make any change in the dear-;. ness allowance. It is contended on the basis of ~ this stand of Mr. Wasmouth that the respondent accepted the positiun that there was scope for rai-sing 'the dearness allowance.-In answer to this argument Mr. B. tien urged that the offer which the company had made was package dea.l but since ~ the appellant-union was not willing to accept the 1 whole of the respondent's offer, the Tribunal was right in not granting any increase in the dearness ~-allowance. We may point out, however, that the (I) (1959) Supp. 2 s.C.R. 136, 140.

The W orkmm oJ Jfestern Match Co. Ltd. v. The Western India M atek Co. Lid., Mudholkar J.

Tlr1 Wor.+11t,n of Jf tsl 11 n JI .. 1,1& Co. ~d. .. TJ.1 SV1s1ern India JI orclt Co, Ltd. Mutlltollur J,

only outstanding questions between the parties wero two-one relating to tho dearneBB allowance and the other relating to the scales of pay. compara-tive chart showing the union's dfmand and the com-pany's offer of the existing scales of pay, dearness allowance, superannuation, casual leave, sick lcavo and over-time has been placed on record and is annexure G.I. We aro not concerned with matters other tha.n the first two and we, therefore, reproduce below only that portion of tho oho.rt which rela.tes to the first two of these matters:

Upto a._

-I ~ 'I

A. As per sales office

No offer

2. Dear-

Employees

ness allo-

wa.nce

** Adjusting the existing R. B. with this salb.

It will be clear from this that the union had made alternative demands in respect of dearness allowance, one was that the same scale as that for sales office employees should be adopted and the other was variation in three slabs of the present scheme accepting as the basis. the working class cost of living index figure. The company refosed to make any counter-offer with regard to th1 primary demand of the appellant-union. But in regard to the alternative demand it made a. counter-offer. If we understand Mr. Wasmouth right the respondent company stood by its counter-offer . based on the working class cost of living index figures before the Tribuna.l even thOUflh thl'

Tlie W orkmtn •/ W1s1trn M a1ch C1. L1&. •• Thi W11tern·lntli• W11tern·lntli•

Thi W11tern·lntli• W11tern·lntli• Jlatcfl (,'1. Led.

Jli.dhtlk•r .J.

'Ill# Workin,n of Wes[1]tTn ,1Jatc1' •. l.14. v. T"4 W t1tpn lndi" Match Co. Lid Mudllelleor.),

conciliation proceedings broke down. During these proceerlings this counter·oifor was linked with the crmnter·offe,r pertaining to grades and scales of pay. Presumably, therefore, the company regarded the pa<'kage deal not merely as concession made for put ting an end to disputes but also because it regarded it as fair and the financial commitment ent.iiled by it to be within its mean~. No doubt in the evidence Mr. Wasmouth haa said that the rcsponrlent.-company does not !tick to its offer relating to grades and scales of pay. But that would not render wh~t was fair and reasonable offer during the 11tal!e negotiations, no longl'r fair and reasonable or neceBSary. The Tribunal has revised the pay scales on b'lsis of the respondent's offer. If, there· fore, dearness allowance is revised on the basis of the respondent's offer what would in effect be done would be only that whioh the res· pondeut company during the conciliation proceed-ings had itsl'lf offered to do, thing which was considered to be fair and reasonable and also necessary. In these circumstances we find it difficult to understand the principle on which the Tribunal proceeded in refusing to revise the scales of dearness allowance on the basis of the respond-ent-company's offer.

Though, therefor<', we reject the contention of the appellant-union that the <learne88 allowance should be fixed on the same basis as that obhining in the sales office we think that in view of the stand taken by the respondent-company throughout the proceedings dearness allowance should be revised in accordance with the oompa.ny's offer. The faot that it made such an offer is indicative of tw'o things : the neceBSity and propriety of revision of the dearness allowance as well as the ability of the respondent-company to pay higher dearness allowance. It was no doubt oontended

2 S.C.R. SUPREME COURT REPORTS

before ns that the offer was m:i.ie during negotiat-ioni and wa.~ without prejudice .and wo should therefore, keep it out of our mind. But we ·cannot overlook the fact that Mr. Wasmouth stuck to. that offer even after the conciliation proceedings had ended infructuously and thus in efl'ect revived the the original offer.

Mr. Sen, however, argued . that on the ha.sis of the decision in Burn &: Go. Ltd., v; · Their Employees(') th'lt a.n aw"rd of fndustrial . Tribunal cannot be reopened unless· it is established that there has been change in 'the circumstances on the award is based and that since• there has been no such change the award of' 1955 pertaining to dearness allowance ought not to be revised. It is true that an award cannot ordinarily be revised unless there is change of circumstances. But here, there has been change of circumstances because cost of living has admittedly gone up since then. This is so notorious fact that we are entitled to take notice of it. The object of award-ing dearness allowance is to neutralise, at least partially, the rise. in the cost of living and in the circumstances the factory employees are entitled to say that the old basis needs to be revised. There is thus no substance in Mr. Sen's argument.

On the. question of the grades and scales of pay the contention of learned counsel is that the Tribunal has not applied its mind to the question bnt h'l<i mechanically accepted the respondent's offer. This statement is not wholly accurate. No donbt the Tribunal htJ.s accepted as reasonablE. the offur which the respondent has made ; but it-has given reasons far doing so. In its award the Tribunal Jias stated :

"The principal point made in support of the ilemand is that the grades and scales of pay are too short and. that they should be <•> [t956J s.c.R. 1a1.

The Worhntn c.J West1rn Matth •. Ltd. v.

Thi Western Tndt'• Match Co. Ltd. Mudh,,l):ar J.

Tira Worln:enoj Ire t11n Na1c;h Co. /JJ, •• 'Thi ,,,J:t•n lrziia Ji •Uh C•. Ltd. Mtt'h•lk•r J.

-46 SUPREME COURT REPORTS (1963)

extended with such modifications as may appear nece88ary in the circumstances of the caee."

Then a.fti>r comparing the exi1ting grades with the company's offer tho Tribunal observed :

"It would appear at glance at this chart that the existing rates provide for ace.Jes of pay in tho case of six, grades upto I 6 yea.rs end in the oaee of one it provides for ten years only. The Union·s demand is for extending the scales upto 20 years in place of ten and sixt~en years, and both the minimum and maximum limit of the sea.lea of pay would be raised in all oases. The Company's offer except in the case of grade B( I) if much in advance of the existing grades and scales of pay. There are good j1rnt ificationR for revision of the grades and and sea.Jes of pay, nnd the Company's offer, in my opinion, should have been accepted by the Union. Tho revision of the grades and s~alt·• of pay as in the Company's off or will, to great extent., remove the hardshipa of tho employees, who, for the present, must remain sadsfied with such revision.

It bas, therefore, applied its mind to tho company's offer and also borne in mind the demand me.do bv tho union. Upon consideration of these mattri"s the Tribune.I came to the <•onclusion that the com-pany's offer is reasonable one. lte finding in this regard is one of fa.ct and cannot bo permittl'd to be challenged in an appeal under Art. 136. In this view we allow the appeal partlJ and direct that tho awe.rd be modified by providing for revision of the dearneBB allowance on the basis of tho company's offer. Subject to this modification, the 8iJpea.I will be difimisEed. In view of tho partial success of the parties we make

no order as to costs. --- Appeal allail'ed i11 part.