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TMI Blog1956 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... oydeb Banerjee and/or payment of compensation-to them. By his award dated 24-6-1953, Shri Banerji, the Industrial Tribunal, held (1) that there were no grounds for revising the scale of pay of the clerical and sub-staff; (2) that the pay of checkers should be increased and that they should be paid according to the scale as set out in his award; (3) that the profits of the Company did not warrant the grant of any bonus in addition to what had been paid by the Company; and (4) that of the four employees, Shambunath Chatterjee should be re- employed as a checker on his old pay, that Ashimananda Banerjee and Panchanan Rana should be re-employed in posts equivalent to their own posts as new incumbents and that Joydeb Banerjee was not entitled either to reinstatement or compensation. Against this award, the Union preferred an appeal to the Labour Appellate Tribunal. By its decision dated 29-4-1955 the Appellate Tribunal substantially modified the award of Shri Banerji in favour of the Union it held (1) that the minimum pay of the clerical and sub-staff should be raised, and that corresponding changes should be made in the ceiling level, in the increments and in the scales of pay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties to the proceedings but not the present Union, which was composed of the clerical and sub-staff. On 30-6-1948 the Tribunal passed an award, the terms whereof were, in general, less favourable to the employees than those fixed by the Bengal Chamber of Commerce and adopted by the Company on 1-10-1946. While the proceedings were, pending before the Engineering Tribunal, disputes arose between-various Mercantile Firms in Calcutta and their employees as regards wages, dearness allowance and other terms of service, and by notification dated 17-1-1948 the Government of West Bengal referred them to the adjudication of another Tribunal, called the Mercantile Tribunal. This Tribunal pronounced its award on 26-8-1949, and the scale of pay provided therein for the lower categories of employees was as follows: Grade D ₹ 70-3-130 Grade C ₹ 70-4-134 The Union was party No. 192 in those proceedings, but for technical reasons, the Tribunal declined to adjudicate on their disputes. The result was that this award was no more binding on the parties than the one passed by the Engineering Tribunal. But the scale fixed in the award of the Mercantile Tribunal was decidedly more favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an award is to be in operation for a period of one year, and under section 19(6), it is to continue to be binding on the parties even thereafter, until terminated by either party by giving two months' notice. Acting on this provision, the Union issued a notice to the Company on 12-7- 1951 being exactly one year from the date of publication of Shri Palit's award dated 12-6-1950, declaring its intention not to be bound by it. This was followed in November by presentation of demands including' one for raising the scale of pay to the level adopted in the -award of the Mercantile Tribunal, and the result was an industrial dispute, which is the subject-matter of the present reference. Shri Banerji, who heard the, reference, held that the question as to the scale of pay had been directly adjudicated upon by Shri Palit, that, on principle, the decision of a Tribunal on a matter referred to it should not be disturbed, unless there had been a change of circumstances since the date of the award, and as none such existed,, the wage structure as fixed by him should stand. The Appellate Tribunal disagreed with this conclusion. It held that the award of Shri Palit, which Shri Banerji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period during which the award would operate, if there has been a material change in the circumstances on which it was based . But this has reference to the period- of one year fixed under section 19(3) and if that indicates anything, it is that would be the proper ground on which the award could be reopened under section 19(6), and that is what the learned Attorney-General contends. But we propose to consider the question on the footing that there is nothing in the statute to indicate the grounds on which an award could be reopened. What then is the position? Are we to hold that an award given on a matter in controversy between the parties after full hearing ceases to have any force if either of them repudiates it under section 19(6), and that the Tribunal has no option, when the matter is again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, and come to a fresh decision. That would be contrary to the well recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of Dr. Akroyd about the need for a balanced diet of 2,600 calories. It is true that Shri Palit does not in terms refer to these matters in his award. But they were all discussed in the awards of both the Engineering Tribunal and the Mercantile Tribunal. The dispute between the parties was whether the one award or the other should be taken as the basis for fixation of the scale of pay, and Shri Palit decided that it was the Engineering Tribunal's award and not the other that was more appropriate to the class of employees, of which the Union was composed. In basing his award on the award of the Engineering Tribunal, Shri Palit must be taken to have considered all the factors relied on by the Tribunal for fixing the scales and the criticism that the award does not refer to them once again is one of form rather than of substance. We must, therefore, hold that the decision of the Appellate Tribunal cannot be maintained even on its own ground. The position then is this: The question of scales of pay was decided by Shri Palit in his award dated 12-6-1950, and the Union was a party to it. It is not alleged that there has been any change in circumstances between that date and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal the contention that the 'cost of living index of the Bengal Chamber of Commerce which was adopted by the Company was different from that of the Government. But this contention went against the admission made by Mr. Sen on behalf of the Company at an earlier stage, and was rightly rejected by the Appellate Tribunal and that was abandoned before us. There is thus, on the face of the record, an error of a fundamental character. It is argued for the appellant that this point is not open to consideration at this stage, as it had not been raised by the Union at any time before, and that, in any event, the matter should be remanded for further enquiry. But the question is whether in view of what appears on the face of the record this is a fit case for our interference in special appeal. The minimum pay fixed by the Appellate Tribunal would be quite proper if the cost of living index is taken, for the purpose of fixing the basic wages, at point 180 instead of 160, and there is no reason why we should not accept it. Nor do we think that a remand is called for in the interests of justice, as, in the face of the undisputed facts, it can only result in the proceedings dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f opinion that the order of the Appellate Tribunal should be set aside both in respect of sarkars and checkers and the award of Shri Banerji restored. (3) On the question of bonus, the facts are that the Company had an elaborate scheme for granting bonus and the employees had been paid in accordance therewith. But the Union claimed that having regard to the profits made by the Company, the employees should be paid three months' basic wages as bonus for the years 1950 and 1951. It is not in dispute that the profits of the Company available for distribution for the year 1950 were ₹ 3.81 lakhs and for the year 1951, even less. The monthly salary of the clerks, sub-staff, sarkars and checkers was ₹ 89,500 and the monthly wages of the workers were ₹ 1,75,000, making a total of ₹ 2,64,500. This is only for one factory, the Howrah Iron Works. The Company owns nine other units at different places, and there is no evidence as to the monthly salary payable to the employees and workmen in those units. Now, the surplus of ₹ 3.81 lakhs in the hands of the Company represents the total profits made by it in all its units, and there cannot be much of a doubt th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who abandoned their claim . The Tribunal forgets that, on its own finding, if all the workmen made a claim, no bonus could have been declared. It is not a question of their abandoning their claim but of their realising that they have none. If the order of the Appellate Tribunal is to be given effect to, some of the employees of the Company would get a bonus, while others not, and as observed in Karam Chand Thappar Bros.' Workmen v. The Company([1953] L.A.C. 152,160), that must lead to disaffection among the workers and to further industrial disputes. The order of the Appellate Tribunal awarding an additional one months basic wages as bonus is neither legal nor just and must be set aside and the award of Shri Banerji as regards bonus restored. (4) It remains to deal with the question of the re- instatement and/or compensation of four employees, S. N. Chatterjee, Ashimananda Banerjee, Panchanan Rana and Joydeb Banerjee. It has been already stated that the order of Shri Banerji with reference to them was modified by the Appellate Tribunal by awarding compensation at the rate of six months' basic wages to S. N. Chatterjee and one year's basic wages with dearness allowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it involved a substantial question of law, and that as the contention of the employees was that the orders dismissing them were bad as having been passed in contravention of ,the rules of natural justice, that was a question of law on which an appeal was competent. It was further contended that when a question arises whether a Tribunal has jurisdiction over the subject-matter, it must be competent to decide whether the preliminary conditions exist, on which its jurisdiction depends, and its decision on that question is not liable to be attacked in civil courts, and that accordingly the assumption of jurisdiction by the Appellate Tribunal on the footing that there was a substantial question of law was not liable to be questioned by the civil court, and the decisions in Pankaj Kumar Ganguli v. Bank of India([1956] 60 C.W.N. 602. 104) and Upper Ganges Electric Employees Union v. Upper Ganges Valley Electricity Supply Co. Ltd. and another(A.I.R. 1956 All. 491) were relied on in support of this contention. We agree that an order refusing reinstatement would be open to appeal under section 7(1)(a) if it involved a substantial question of law. Whether a decision of the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside. (3) The facts relating to Panchanan Rana are similar to those of Ashimananda Banerjee, and for the reasons already given, the order of the Appellate Tribunal in his favour should be set aside. (4) The question as regards Joydeb Banerjee is whether he is entitled to compensation on the ground that he had been wrongly discharged. The facts are that on 16-11-1950 a number of employees participated in an assault on the Works Manager, Mr. Davison, and the Company dismissed fourteen of them on that ground, and Joydeb Banerjee was one of them. The Appellate Tribunal has held that as no charge was, framed against him or an enquiry held, his dismissal was in contravention of the rules of natural justice. It has accordingly ordered that he should be given one year's basic wages with dearness allowance as compensation. It is true that no charge-sheet was formally drawn up against him, but that would not vitiate the order of dismissal if he knew what the charge against him was and had an opportunity of giving his explanation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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