Delhi High Court
Hindustan Housing Factory Employees' ... vs Hindustan Housing Factory Ltd. And Ors. on 8 April, 1970
JUDGMENT Hardaval Hardy, J.
1. This is an appeal under Clause 10 of the Letters Patent against the judgment of T.V.R. Tatachari, J. in a petition under Article 226 of the Constitution whereby certain orders made by the Industrial Tribunal, Delhi, in an industrial dispute between the management and the workmen of an industrial undertaking which had been, referred to it for adjudication under Section 10(1)(d) of the Industrial Disputes Act, 1947, were quashed and set aside at the instance of the management. The relevant facts are these:
2. The respondent, Hindustan Housing Factory Limited, hereinafter called the company, is a Government undertaking. Appellant No. 1 is a union of workmen of the company while appellant No. 2 is the General Secretary of the union. The question of payment of dearness allowance to the workmen of the company has bedevilled relations between the management and the workers since quite a few years past. Whereas the workmen have all along been contending that they were entitled to payment of dearness allowance at the same rates as are applicable to the Central Government employees for the respective pay-ranges, the company's contention has been that its workmen are not Government employees and that it has its own standing orders which constitute the conditions of service of its employees and any enhancement or declaration of dearness allowance made by the Central Government does not entitle the employees of the company to claim corresponding benefit for themselves. Way back, in 1962, the differences between the company and its workmen assumed the character of an industrial dispute with the result that by a notification dated 26th July, 1962, the Chief Commissioner, Delhi, referred the dispute for adjudication to the Industrial Tribunal, Delhi, with the following terms of reference:--
3. What should be the dearness allowance admissible to the workmen and from what date?
During the pendency of the reference the company and its workmen arrived at a settlement on 29th January, 1963, which was embodied in a consent award made by the Tribunal on 30th January, 1963. On 7th February, 1963, the copies of the award were sent to the Labour Commissioner, the Recruitment and Services Department of Delhi Administration and the company and the union representing the workmen of the company. The consent award was published in the Gazette on 14th March, 1963.
4. The terms of the settlement embodied in the award were as follows:--
(1) The management agrees to pay with effect from 1st April, 1962, an additional dearness allowance of Rs. 5 per month to such workmen whose basic pay is below Rs. 150 per month and Rs. 10 per month to those whose basic pay is Rs. 150 and above but below Rs. 300.
In regard to the workmen drawing Rs. 300 and above the revised rate of D.A. will be as under:--
Basic pay Rs. 300 amount by which pay
and up to Rs. 320. falls short of Rs. 330.
Basic pay Rs. 321 Rs. 10.
and up to Rs. 390.
Basic pay Rs. 391 amount by which pay
and above. falls short of Rs. 400.
It is also agreed that the enhanced rates will be paid along with the pay for the month of January, 1963, and the arrears due to workmen will be paid before the end of February, 1963.
(2) It is further agreed that this enhancement of D.A. shall not confer any right to the workmen to claim automatic increase in the dearness allowance on the basis of any increase that may be allowed by the Central Government to their employees from time to time and that such claim will be determined on the basis of the company's rules and all other relevant factors having a bearing in this respect.
(3) The union, on its part, agree to accept the above offer in full and final settlement of their claim in this respect.
5. The company started making payments in accordance with term No. 1 of the award and it appears that from time to time the management of the company introduced revised rates of dearness allowance corresponding to the rate admissible in the case of Central Government employees even after the normal period of operation of the award was over. The said revised rates of dearness allowance were accepted by the workmen and salaries continued to be drawn by them on the basis of the revised rates from time to time till some time later when the management decided to change the pattern of dearness allowance so as to bring it in conformity with the payment of such allowance to workers in the engineering industry in the country. It also appears that even when the company gave during the years 1964 and 1965 dearness allowance at certain rates which happened to correspond with the rates of dearness allowance given by the Central Government to its employees, the dates from which the said allowance was given often varied.
6. Meanwhile, pursuant to the recommendation made by Gajendragadkar Commission, the Government of India issued a notification dated 20th October, 1966, increasing the dearness allowance payable to Central Government employees with retrospective effect from 1st December, 1965 and 1st August, 1966. After the increase in the rates of dearness allowance payable to Central Government employees the union called upon the company to give effect to the said recommendation in respect of its own employees as well. The management however declined to concede the union's demand. This led to a strike in the factory of the company from 5th January, 1967,
7. By Notification No. F(26)(22)/67-Lab (i), dated 24th January, 1967, the Lieutenant-Governor, Delhi, referred the dispute to the Industrial Tribunal, Delhi, under Section 10(1)(d) of the Industrial Disputes Act, 1947, for adjudication, the terms of reference being as under:--
Whether the workmen are entitled to be paid the same rates of D.A. as payable to the Central Government employees for the respective pay-ranges and what directions, including date from which the same should be paid, are necessary in this respect ?
Before the Industrial Tribunal the company contended that the company had its own standing orders which constituted the conditions of service of its employees and that any enhancement of dearness allowance by the Central Government did not entitle the employees of the company to claim corresponding benefits for themselves. It was also submitted that there was a subsisting settlement between the company and the union which precluded any claim respecting dearness allowance being entertained and adjudicated upon by the Tribunal. The stand taken by the union on the other hand was that in any case the management was estopped from raising such a plea because, after the settlement dated 29th January, 1963, right till 16th March, 1966, the company had been introducing and paying all increases in dearness allowance as had been given from time to time to the Government employees. The company had thus by its conduct acquiesced in making payment of dearness allowance on the principles on which such allowance was being paid to Government employees and was therefore estopped from challenging the right of the employees in that behalf. Shri R.D. Jain, General Secretary of the union, took an additional stand and contended that at any rate there was no subsisting settlement or award because the same had been terminated by a notice sent by him on behalf of the union on 9th March, 1964, by registered post. On the pleas raised by the parties the Tribunal framed two issues. Issue No. 2 merely reproduces the terms of reference while issue No, 1, which was treated as a preliminary issue, reads as under:--
1. (a) Whether the settlement dated 29th January, 1963, and the award based thereon are not subsisting?
(b) What is the effect of the aforesaid settlement on the present reference?
By its order dated 19th September, 1967, the Tribunal took the view that the notice of termination of the consent award having been given during the period of operation of the award could not have the effect of validly terminating the same. But, while holding that there had been no valid termination of the award as a result of the notice, the Tribunal went on to add that since the management had been introducing from time to time revised rates of dearness allowance even after the normal period of operation of the award was over and the said revised rates were also accepted by the workmen, for all practical purposes, term (1) of the consent award which related to the rates of dearness allowance payable from 1st April, 1962, had ceased to be in operation and since none of the parties had adhered to the said clause of the award, at least that part of the settlement could not be held to be subsisting any longer.
8. As regards term No. (2) of the award, the Tribunal did not specifically give a finding as to whether that part of the award also ceased to exist.
9. During the pendency of the reference, the union applied to the Tribunal for enhancement of dearness allowance by way of interim relief. The application was opposed by the company, inter alia, on the ground that since the entire claim of the union was incompetent by reason of a subsisting settlement between the parties no interim relief could be asked for or granted. On 5th February, 1968, the Tribunal made a separate interim award granting interim relief for payment of dear ness allowance to the workers at a flat rate of Rs. 6 per mensem with effect from 7th February, 1968. The Tribunal also directed that the interim relief would be kept as a separate item and would be adjusted against, any increase in the final award or settlement.
10. Shortly after the interim award was published on 14th March, 1968, the management of the company entered into a fresh settlement with certain office bearers of the union on 25th April, 1968. The validity of the settlement was however challenged by Shri R.D. Jain, who is appellant No. 2 before us, inter alia, on the ground that the persons who had signed the settlement on behalf of the union were not competent and authorised to do so. The Tribunal by its order dated 17th July, 1968, upheld the objection raised by Shri Jain and brushed aside the said settlement.
11. It is against the aforesaid three orders of the Tribunal, viz., order dated 19th September, 1967, the interim award dated 5th February, and the order dated 17th July, 1968, that the company moved this Court under Article 226 of the Constitution. Learned single Judge who heard the petition agreed with the Tribunal that the notice sent by appellant No. 2 on 9th March, 1964, could not have the effect of terminating the consent award which was published on 14th March, 1963, and had thus become enforceable on and from that date. Learned Judge however disagreed with the Tribunal in holding that term No. (1) of the consent award had ceased to exist by reason of the payment of dearness allowance by the management of the company at rates different from those set out in term No. (1) and the acceptance thereof by the workmen. He also held that the award could be terminated under Section 19(6) by a notice in writing only and not by the conduct of the parties. In that view of the matter, the learned single Judge quashed the order of the Tribunal dated 19th September, 1967. He also quashed and set aside the interim award of the Tribunal dated 5th February, 1968, holding that the terms of the reference did not empower the Tribunal to grant any interim relief.
12. As regards the settlement dated 25th April, 1968, the learned Judge concurred with the Tribunal in holding that the persons signing the alleged settlement were not competent to do so on behalf of the union and as such the said settlement was not binding on the union and its members. The prayer of the company for quashing the order of the Tribunal dated 17th July, 1968, was, therefore, rejected.
13. The union and its General Secretary have now come up in appeal against the order of learned single Judge setting aside the order of the Tribunal dated 19th September, 1967, and the interim award dated 5th February, 1968.
14. Against the learned Judge's order upsetting the order of the Tribunal dated 19th September, 1967, the union and its secretary Shri R.D. Jain have mounted a three-pronged attack. The first ground of attack is that the award, though published in the Gazette on 14th March, 1963, was actually published on 7th February, 1963, and, therefore, became enforceable on the expiry of 30 days from the date of publication. A notice terminating the award issued on 9th March, 1964, should, therefore, be held to have been sent before (sic) the expiry of the period of operation of the award. The second ground is that the award merely embodied the settlement arrived at between the parties. It was, therefore, a settlement and not an award. Being a settlement it could be terminated by two months' notice an either side after the expiry of the period of six months from the date on which the memorandum of settlement was signed by the parties to the dispute. The aforesaid settlement having been arrived at on 29th January, 1963, a notice issued on 9th March, 1964, could very well terminate the same. The third ground is that even if the settlement is to be treated as an award it can be terminated not only by a notice in writing but also by the conduct of the parties. In the present case, it was urged that the company had admittedly paid to its workmen for the years 1964 and 1965 rates of dearness allowance corresponding to those paid by the Central Government to its employees. This clearly showed that term No. (1) of the award had been set at naught by the conduct of the parties and it, therefore, did not subsist any longer.'
15. It appears to us that there is no substance in any of the three grounds on which the decision of the learned Judge has been assailed by the appellants.
16. It is true that the award was made by the Tribunal on 30th January, 1963, pursuant to the settlement arrived at between the parties a day earlier. It is also true that after the award was made and signed by the Tribunal a notification bearing No. F34(5)/62-Lab. was sent by the Secretary (Labour), Delhi Administration, for publication in Part VI of Delhi Gazette and a copy of the notification was sent to the Labour Commissioner, Delhi, for information. Its copies were also sent (in duplicate) to the Recruitment and Services Department of Delhi Administration for favor of publication in the Gazette and a copy each was sent to the company and the union of workmen. A copy of the notification was also sent to the Industrial Tribunal, Delhi, but the notification was actually published in the Gazette on 14th March, 1963. An examination of the notification which was sent for publication in the Gazette shows, (1) that it did not bear any date and the date 7th February, 1963, is only to be found on the endorsement appearing at the foot of the notification forwarding copies to the persons mentioned above and (2) that it was merely a draft with the heading "to be published in Part VI of the Delhi Gazette".
17. Section 17(1) of the Act which deals with publication of awards etc., lays down that every award shall, within a period of 30 days from the date of its receipt by the appropriate Government be published in such manner as the appropriate Government thinks fit. In the present case, the manner adopted by Delhi Administration was publication in Part VI of Delhi Gazette. Subject to the provisions of Section 17-A, it is an award which is thus published that has been made final under Sub-section (2).
18. Leaving aside the two provisos which are not relevant in this case, Section 17-A lays down that an award (including an arbitration award) shall become enforceable on the expiry of 30 days from the date of its publication under Section 17. The award in this case therefore became enforceable on the expiry of 30 days from 14th March, 1963. We are unable to hold that by sending on 7th February, 1963, the copies of the notification or the award to the persons named at the foot of the notification, Delhi Administration intended to adopt a different mode of publication from that of publishing the award in the Official Gazette. The learned single Judge was, therefore, right in holding that the award was published on 14th March, 1963.
19. Admittedly the notice of termination of the award was given by Shri R.D. Jain on behalf of the union on 9th March, 1964. We have already said that the award became enforceable under Section 17-A on the expiry of 30 days from the date of its publication on 14th March, 1963. Sub-section (3) of Section 19 lays down that an award shall, subject to the provisions of that section, remain in operation for a period of one year from the date on which it became enforceable under Section 17-A. This period may however be reduced or extended by the appropriate Government but the total period of operation of the award must not exceed three years from the date on which it came into operation. It is common ground that in the present case there was no extension or reduction of the period of operation of the award by the appropriate Government. The award was therefore in operation for a period of one year from 13/14th April, 1963. A notice of termination issued on 9th March, 1964, must accordingly be held to have been given within the period of operation of the award. The view taken by the Tribunal and concurred in by the learned single Judge that the notice issued on behalf of the union did not have the effect of terminating the award is, therefore, unassailable. Where the Tribunal, however, went wrong, and the error has been rightly pointed out by the learned single Judge, is when it held that the award stood terminated by the conduct of the parties.
20. Learned single Judge has held that an award or a term therein can be terminated only by following the procedure mentioned under Sub-section (6) of Section 19 of the Act, that for the termination of an award under that section a notice in writing is necessary and that the conduct of the parties cannot legally terminate the award or a term thereof. In coming to this conclusion the learned Judge relied upon a Bench decision of Rajasthan High Court (Wanchoo, C.J. and Dave, J.) in Maharaja Shri Umaid Mills Ltd. v. The Textile Labour Union .
21. The correctness of that view was challenged by Mrs. Urmila Kapur, learned Counsel for the union and Shri R.D. Jain, appellant No. 2, who addressed a separate argument on his own behalf. Basing themselves on a judgment of B.N. Banerjee, J. of Calcutta High Court in W.B. Press Workers and Employees' Union v. Art Union Printing Works (P.) Ltd. [1962] 23 F.J.R. 437, it was urged that it was not necessary for terminating an award that a notice in writing should be served by one party on the other. Such notice may or may not be in writing and may be communicated in any manner, provided the party for whom it is intended has sufficient knowledge of the facts constituting it. The observations made by the learned Judge in that case are purely obiter. What had happened in that case was that on a consideration of the oral and documentary evidence on record the Industrial Tribunal had come to the conclusion that the prior award between the parties in regard to scales of pay had not been properly terminated as required by law. The reference obviously was to the provisions of Section 19(6) of the Act. The observations relied upon by the union were made by the learned Judge while deciding the petition under Article 226 of the Constitution and the actual decision was that the Tribunal's finding could not be interfered with in a writ petition. The case is therefore no authority for the proposition canvassed for by the appellants.
22. The next case relied upon by the union is a judgment of the Supreme Court in Workmen of Western India Match Co. v. Western India Match Co. [1962] 22 F.J.R. 395. The case is distinguishable on facts. In Bangalore Woollen, Cotton and Silk Mills Co., Ltd. v. Their Workmen [1967] 33 F.J.R. 254, this case was relied upon as supporting the proposition that an inference of an intention to terminate an award or a settlement could be gathered from the correspondence that passed between the management and the union. Vaidialingam, J. who wrote the judgment of the Court, observed that the decision did not lend support to such view. It was also observed that the decision of that case actually rested on the finding that though no formal notice was given, the letter of 8th April, 1957, written by the union could be construed as notice within the meaning of Section 19(2) and, therefore, the Tribunal had jurisdiction to adjudicate upon the claim.
23. Counsel for the appellants contended that both the decisions of the Supreme Court relate to the necessity of a notice in writing to terminate a settlement under Section 19(2) of the Act. As regards the necessity of a written notice under Section 19(6) of the Act which alone deals with the termination of an award the question whether the award could be terminated by an oral notice under Section 19(6) of the Act was left open.
24. It is true that in Bangalore Woollen Mills case [1967] 33 F.J.R. 254, the question whether the award could be terminated by an oral notice under Section 19(6) was left undecided. But it will be noticed that the case of Western India Match Company [1962] 22 F.J.R. 395, was the case of a consent award and not settlement simpliciter. It however seems to us that on the facts of the present case it is hardly necessary to decide that question. The case of the union is not that the termination of the award was brought about by an oral notice given under Section 19(6) of the Act. On the other hand the definite stand taken by the union is that the award was terminated by a notice in writing or at any rate by conduct of the parties. We have already said that the notice relied upon by the union was not a valid notice because it was given before the expiry of the period of the award. In Maharaja Shri Umaid Mills Ltd. v. The Textile Labour Union , it was held by the learned Judges of Rajasthan High Court that a notice for terminating an award under Section 19(6) must be given in writing as otherwise it would be difficult to compute the period of two months from the particular date. The fact that no particular form of notice had been prescribed by law did not mean that it could be oral and need not be in writing. There is no warrant for holding that because the words "in writing" do not appear in Sub-section (6) as they appear in Sub-section (2) of Section 19, the intention of the Legislature was that the notice for terminating the award could be oral. There is no reason to suppose that the Legislature intended to treat the termination of a settlement differently from the termination of an award. In Bangalore Woollen Mills case [1968] 33 F.J.R. 254, it was said that it cannot be over-emphasised that an intimation regarding the termination of an award must be fixed with reference to a particular date so as to enable the Court to come to the conclusion that the party giving that intimation had expressed its intention to terminate the award. Such certainty regarding date is absolutely essential, because the period of two months after the expiry of which the award will cease to be binding on the parties will have to be reckoned from the date of such clear intimation. Such certainty, in our opinion, cannot be had when it is claimed that the award had come to an end by the conduct of the parties. The same consideration should likewise apply when termination of the award is claimed to have been brought about by oral notice.
25. We may now deal with the last ground of attack. It was argued that an award which merely embodies a compromise arrived at between the parties cannot be treated as an award within the meaning of that expression as defined in Section 2(b) of the Act. If the compromise satisfies the requirements of the term "settlement" as defined in Section 2(p) then the award is nothing more than a "settlement" and should therefore be treated as such. Once it is found that the arrangement with regard to payment of dearness allowance in this case is a settlement, its binding character must be held to be limited to the period mentioned in Section 19(2).
26. It was urged that what the Industrial Tribunal is empowered under Section 15 is to pass an award which is defined in Section 2(b) as an interim or final determination of an industrial dispute. It is implicit in the word "determination" that it should be judicial exercise of the Tribunal's own judgment. When the Tribunal merely adopts the compromise between the parties without expressing its own opinion whether the compromise is fair, just and equitable and whether it should be adopted as its own determination of the dispute, the decision cannot be regarded as an award.
27. It was also contended that a compromise or settlement can only bind those who are parties to it and that the consequences emanating from a settlement are different from those flowing from an award. In the present case, the Tribunal had merely adopted the compromise without expressing its opinion.
28. To start with, both Mrs. Kapur and Shri R.D. Jain (appellant No. 2) took up the position that a consent award which merely reproduced the terms of settlement arrived at between the parties without an express declaration by the Tribunal that it was fair, just and equitable, was invalid and therefore could not stand in the way of the dispute being raised before the expiry of the period of one year. Support for this argument was sought from the following decisions:
1. Coimbatore District Mill Workers' Union v. Dhanalakshmi Mills Ltd. Tiruppur 1960--II L.L.J. 556.
2. Andhra Handloom Weavers' Co-op. Society v. State of Andhra Pradesh [1963] 27 FJ.R. 113.
3. Sital v. Central Government Industrial Tribunal-cum-Labour Court, Jabalpur 1969--II L.LJ. 275.
In the course of arguments, however, they modified their position to some extent and submitted that an award based on settlement could only operate as a settlement as provided by Sub-section (2) of Section 19 of the Act. For the latter proposition reliance was placed on a Bench decision of Bombay High Court in Garment Cleaning Works v. D.M. Aney 71 Bom. L.R. 843. We are unable to accept either of the two positions taken by them.
29. Apart from the fact that all the four cases cited by the appellants are distinguishable on facts we shall presently show how we find it difficult to subscribe to the proposition that a consent award, i.e., an award which embodies the compromise arrived at between the parties, cannot be regarded as an award unless it bears on its face an expression of the Tribunal's opinion that it is fair, just and equitable and is, therefore, being adopted as the Tribunal's determination of the dispute. The decision of Shri Ramachandra Ayyar, J. of Madras High Court in Coimbatore District Mill Workers' case 1960--II L.L.J. 556, which appears to lend countenance to this view, itself recognises the fact that although it is implicit in the word "determination" that the Tribunal should exercise is own judgment it does not follow that the Tribunal is precluded from taking note of a compromise entered into between the workers and the management. What is said in that case is that where there is a compromise, the Tribunal should consider whether in its opinion, the compromise could be adopted as its own determination of the dispute, that is, whether it is fair, just and equitable between the parties. This is necessary as the award would affect parties other than those actually appearing before the Tribunal. This decision was followed by Madhya Pradesh High Court in Sital v. Central Government Industrial Tribunal 1969--II L.L.J. 275.
30. We agree that while accepting the compromise and adopting it as its own award the Tribunal is bound to see that the compromise is by all the parties to the reference. It should also see that the terms of compromise are fair, just and equitable and the compromise is not vitiated by collusion, fraud, coercion or undue influence. But this does not mean that if the opinion of the Tribunal,, that the compromise is free from this taint and is fair, just and equitable, is not expressed on the face of the award the award must be held to be invalid. The validity of the award, in our opinion, does not depend upon the expression of such opinion by the Tribunal on the face of the award but has to be judged by reference to the terms of the award itself. Judged in that light the award of the Tribunal in this case cannot be said to suffer from any such infirmity nor can it be said that it was not fair, just and equitable despite the fact that the Tribunal had not said so on the face of the award.
31. We may now consider the cases relied upon by Mrs. Kapur and Shri R.D. Jain in support of their argument that the consent award in the present case was invalid. We have already said that the judgment in the case of Coimbatore District Mill Workers' Union 1960--II L.L.J. 556, was one of the cases relied upon by them. An examination of the judgment shows that the compromise in that case was between the management of 32 mills and only some of the unions representing a section of the workers. The Coimbatore District Mills Workers' Union which represented other workers objected to the compromise on the very day it was entered into. The Tribunal however overruled the objection and made an award in terms of the compromise without hearing the dispute on merits. It is apparent that the consent award in the present case is not open to any such objection.
32. The case of Andhra Handloom Weavers' Co-Society [1963] 27 F.J.R. 113, is from Andhra Pradesh High Court. In this case the Labour Court to which the industrial dispute had been referred for adjudication had "dismissed the case for default" of appearance of the workmen at the inquiry. The order could not therefore be held to be an award as defined in Section 2(b) of the Industrial Disputes Act.
33. In the case of Sital v. Central Government Industrial Tribunal 1969--II L.LJ. 275, five specific items of dispute mentioned in the schedule to the reference were referred for adjudication. The dispute concerning the permanent employment of the petitioner as a badli worker in the colliery was specifically referred to the Tribunal. The employees and the union sponsoring the dispute entered into a compromise which was adopted by the Tribunal as its own award. In the order it was stated that the terms of settlement did not specify the manner in which the disputes had been settled. The award was challenged by the petitioner Sital who contended that the Tribunal could not have accepted an amicable settlement between the parties which did not specify the manner in which disputes had been settled, and make an award in terms of such settlement. The contention was upheld by the High Court. It is apparent that ex-facie there was no determination of the dispute.
34. In the case of Garment Cleaning Works 71 Bom. L.R. 843, decided by the Bombay High Court, the question was entirely different. The question there was whether the settlement entered into between the firm and the unions representing the workers which became the subject-matter of the award and were acted upon for about two years, were binding for the periods stated in the settlements or they could be reopened under the Industrial Disputes Act. The Tribunal answered the objection against the firm on the ground that an award binds the parties only for a year. The firm then moved the High Court under Article 226 of the Constitution where it was pointed out that the agreements in these cases were arrived at as an over-all arrangement between the parties for a period of 5 years on several matters some of which were outside the references, the workers obtained benefits for about two years under the said agreements in the nature of increased remuneration. It was therefore contended that the settlement between the parties was intended to operate for a longer period than the one provided under the statute for an award and they also embraced matters some of which were outside the references. It was under these circumstances that it was held by the High Court that an award based on a settlement must operate as provided by Sub-section (2) of Section 19 of the Act. This is something entirely different from saying that a consent award has to be treated as a settlement only and not as an award and can therefore be terminated after the expiry of a period of six months.
35. The question regarding the power of the Industrial Tribunal to make an award in terms of a compromise arrived at between the parties came for consideration before the Supreme Court in State of Bihar v. D.N. Ganguli [1958] 15 F.J.R. 118, where it was urged that if a dispute referred to the Industrial Tribunal under Section 10(1) was settled between the parties, the only remedy for giving effect to such a compromise would be to cancel the reference and to take the proceedings out of the jurisdiction of the Industrial Tribunal. This was almost a direct challenge to the authority of the Tribunal to make an award in terms of the compromise between the parties. The argument was repelled. Gajendragadkar. J. who wrote the judgment of the Court, said (at page 126):--
This argument is based on the assumption that the Industrial Tribunal would have to ignore the settlement by the parties of their dispute pending before it and would have to make an award, on the merits in-spite of the said settlement. We are not satisfied that this argument is well-founded. It is true that the Act does not contain any provision specifically authorising the Industrial Tribunal to record a compromise and pass an award in its terms corresponding to the provisions of Order XXIII, Rule 3, of the Code of Civil Procedure. But it would be very unreasonable to assume that the Industrial Tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties. We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary objects of this Act. Settlements reached before the Conciliation Officers or Boards are specifically dealt with by Sections 12(2) and 13(3) and the same are made binding under Section 18. There can, therefore, be no doubt that if an industrial dispute before a Tribunal is amicably settled, the Tribunal would immediately agree to make an award in terms of the settlement between the parties.
In view of this clear pronouncement of the Supreme Court it hardly seems necessary to refer to a few other cases to which our attention was invited by Shri V.S. Desai, learned Counsel for the company.
36. We are, therefore, clearly of the opinion that a consent award is as good an award as an award made by the Tribunal after contest and is to be treated as an award within the meaning of Section 2(b) and not as a settlement defined in Section 2(p). We are also of the opinion that so long as the compromise embodied in the award resolves the disputes between the parties which had been referred to the Tribunal for adjudication and is not tainted with fraud, collusion, coercion or undue influence, it continues to remain binding on the parties unless it is terminated in the manner provided by Sub-section (6) of Section 19 of the Act.
37. This brings us to the second order of the Tribunal making an interim award on 5th February, 1968.
38. The Tribunal had held that even if the stand of the workmen that they were entitled to the same rates of dearness allowance and on the same dates as Central Government employees, was not accepted it was still "open to the Tribunal either to accept any scheme of dearness allowance which is applicable to an engineering industry as is indicated in the directors' report, or to suggest some alternative scheme either based on the group of industries to which the Hindustan Housing Factory must be considered to belong or on some other principles."
39. The learned single Judge, after discussing the scope of the terms of reference, has pointed out that the said terms of reference did not envisage the fixation of dearness allowance payable to the workmen. The Tribunal was merely called upon to decide whether the workmen were entitled to be paid the same rates of dearness allowance as payable to the Central Government employees. It could grant interim relief if it had the power or competence to give a final relief as to dearness allowance. Where the terms of reference do not envisage the fixation of dearness allowance the Tribunal would not have the power to grant any interim relief.
40. The ambit of Tribunal's authority to adjudicate upon a dispute depends upon the terms of reference. Under Section 10(1)(d) of the Act it is open to the appropriate Government when it is of the opinion that an industrial dispute exists or is apprehended, to make an order in writing referring "the dispute or any other matter appearing to be connected with or relevant to the dispute...to a Tribunal for adjudication."
41. Under Section 10(4) where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental there to.
42. In Delhi Cloth and General Mills Co. Ltd. v. Their Workmen [1966] 30 FJ.R. 533, it was held by the Supreme Court that the Tribunal is not free to enlarge the scope of a dispute referred to it but must confine its attention to the points specifically mentioned and anything-which is "incidental thereto". It was further held that " 'something incidental to a dispute' must, therefore, mean something that happened as a result of or in connexion with the dispute or associated with the dispute. The dispute is a fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct."
43. In that case issues (3) and (4) were as under:
(3) Whether the strike at the Delhi Cloth Mills and the lock-out declared by the management on 24th February, 1966, are justified and legal and whether the workmen are entitled to wages for the period of the lock-out ?
(4) Whether the 'sit-down' strike at Swatantra Bharat Mills from 23rd February, 1966, is justified and legal and whether the workmen are entitled to wages during the period of the strike?
The management contended that the fundamental basis as regards these two matters was that there was a strike at the Delhi Cloth Mills and a sit-down strike at the Swatantra Bharath Mills and the only question referred for decision related to the legality and justification of the said strikes. The unions contended that there were no strikes at all. The Tribunal held that as the strikes were not admitted by all the unions it would be the duty of the Tribunal to decide whether there were such strikes. It was held that the Tribunal had to examine issues (3) and (4) on the basis that there was a strike at Delhi Cloth Mills unit and a sit-down strike at Swatantra Bharat Mills unit and there was a lock-out declared in regard to Delhi Cloth Mills. It was not free to enlarge the scope of the dispute referred to it by examining whether there was strike at all.
44. In Hukumchand Jute Mills Ltd. v. Labour Appellate Tribunal , Sinha, J. held that where the only dispute referred to the Tribunal was "Is the employee entitled to reinstatement ?", and the Tribunal held that the employee was not entitled to reinstatement, it could not then go further and award compensation to the employees. Such an award must be beyond the scope of the reference and could not be said to be incidental to the point referred.
45. It is true that the words of the reference should not be interpreted in a rigid manner, but, at the same time, it is not open to the Tribunal to enlarge the scope of the reference. A bare reading of the first part of the reference to the Tribunal, in the present case, shows that all that the Tribunal was called upon to consider was as to whether the workmen were entitled to be paid the same rates of dearness allowance as payable to the Central Government employees for the respective pay-ranges. The reference does not envisage any fixation of dearness allowance in general. The language of the second part of the reference, viz., "and what directions, including the date from which the same should be paid, are necessary in this respect," also suggests that the question has to be answered only when the answer to the first part is in the affirmative. Even in such a case the answer under the second part is to be only as to what directions are necessary regarding payment of dearness allowance at the same rates as those payable to the Central Government employees and the date from which the same should be paid. Thus, whether the answer to the first part of the reference is in the affirmative or in the negative, in either case, the fixation of the quantum of any dearness allowance does not arise.
46. We are, therefore, completely in accord with the learned single Judge that it was not open to the Tribunal to give an interim award when the main dispute itself could not be adjudicated upon by it.
47. The result is that the appeal fails and is accordingly dismissed, but, in the circumstances of the case, there will be no order as to costs.