the Kirloskar Oil Engines Ltd., Kirkee, Poona v. the Workmen and Others

Judgment

I 'l'HE KIRLOSKAR OIL ENGINES LTD., KIRKEE, POONA THE WORKMEN AND OTHERS (P. B. GAJENDRAGADKAR, A. K. SARKAR and K. N. WANCHOO, JJ.) Industrial Dispute-Reference-Award-Clnrification of award by Tribunal-Scope-Industrial Dispute;; Act, 1947(14 of 1947), s. 36A. ' Certain disputes between the appellant and its workmen were referred to the industrial tribunal for adjudication by the State Government under the provisions of the Industrial Disputes Act, 1947. The award made by the tribunal provided, inter alia, ( 1) that if a workman had to work on a weekly off or on a holiday he should be paid I: times his wages and dearness allowance over and above a substituted holiday, and (2) that all the workmen shall be granted 15 days privilege leave in a year which could be allowed to be accumulated up to 45 days. The appellant applied to the Government under s.

36A of the Act stating that the directions given by the tribunal had to be clarified on the grounds, inter alia, (I) that the reason for directing the additional payment for working on a weekly off or on a holiday was that the workman was deprived of an opportunity to spend his time in the company of his colleagues and refresh himself, but that there was no basis for this since the whole factory worked on weekly off or on a holiday, and (2) that the accumulation of privilege leave of 45 days to all workmen was not justified. The tribunal made a clarification as regards privilege leave confining it to only those workmen who had put in 240 days or more of actual working during the previous calendar year so as to be in conformity with the provisions of the Factories Act, 1948, but as regards others matters it held that the directions given were quite clear and that under the guise of, clarification the appellant: could not !eek a modification of the award under s. 36A.

Held, that 36A of the Industrial Disputes Act, 1947, was intended to empower a tribunal to clarify the provisions of the award passed by it where a difficulty or doubt arose about their interpretation, and not to review or modify its own order. Any question about the propriety, correctness or validity of any provision of the award would be outside the purview of the enquiry contemplated by that section. Nooember J 7. lf!al -,,, K11losl:ot Oil Entt:JJ l..JJ., J;irktt, PoC111<J 1 ht I Vor1nk u /Jajt11d1agar!ka1 J. 492 SUPREME COURT REPORT3 [1962] SUPP. C1v1L APPLELLATE JtJRJFllICTJOIS: Civil Ap1ieal No. 587 of l 9ti0. Appeal by opccial leave frcm the ~wi;rd dated Dect'mbcr Hi, l\J58, of the Jmlustrial Tribunal, Bombay, iu Refo1<·nce (1. T.) No. 387of1958. M. C. Sctulvad, Atl-Orney-Ge11cral of India and I. N. Shroff, fort.he appellant. K. R. Clwudkuri, for respondent No. I. Naunit-Lal, fur respondent No. 2. 1961. N oYembcr 17.

The Judgment of the Court "as delivered Ly GAJmWRAGADKAR, J.-This appeal by special leave arises out of the prnoeedings taken at the instance of the appellant, the Kirloskar Oil Engines Ltd., Kirkee, Poona under s. 36A of the Industrial Disputes Act, l 9n (14 of 1947) (hereafter called the Act). It appears that certain disputes pending between the appellant and the respondents, its workmen, were refened to the industrial tribunal for its adjudication by the Government of Maharashtra. The disputes in question related to seven demands made hy the responclentl:! : two of these were in regard to privilege leave and allownees. The tribunal which tried the dispute ma.de its award in two parts. Part I of the awe.rd which dealt the demand of privilege leave and different kinds of allowances was made on Jw1e 30, 1958, and pub· Jished on July . 7, 1958. On August 2, 1958, the appellant applied to the State Government for reference of certain points to the tribunal for its clarification under 1.

36A. Accordingly an order of reference was made in reept>ct of the two itrnis vrivilegc leave and allowa.ncce. The tribunal has made the necessary clarification in regard to its direction as to privilege leave. It has, however, held that the direction mado by it for the payment to tho workmen under paragraph 14 of its award needed no clarification. It held that in substance the appellant was seeking for a modification of the said direction and that could not be done in the clarification proceedings contemplated by s. 36A. The clarification award was thus made by the tribunal and submitted to the Government. It is a.gainst this award that the appellant has come to this Court by special leave. It would be convenient at this stage to indicate briefly the nature of the clarification claimed by the appellant before the tribunal. In regard the claim for privilege leave the original award by paragraph 10 had directed as follows :

"All the workmen, both daily and monthly rated, get privilege leave according to the provisions of the Factories Act. The leave usually comes to 14 or 15 days in a year I consider a privilege leave of 15 days a year to both the sections of the workmen in the Kirloskar Oil Engines as quite adequate. At present this leave is allowed to be accumulated for two years. Hore I am of the opinion th'l>t the accumulation should be up to 45 days. I therefore direct that all the workmen of the Kirloskar Oil Engines Ltd., Poona, shall be granted 15 days privilege leave (including privelege le!tve under the Factories Act )which will be allowed to be accumulated up to 45 days." The appellant apprehended that the direction of the award may justify a claim by every worker whose name is on the muster roll to 15 days privilege leave irrespective of his a.ctual attendance during the year.

In other words, the appellant argued before the tribunal in the present proceedings that the words used by the original award were wide enough to justify a claim for 15 days privilege leave even where the workman was absent from work, for say 360 days in a year, provided his name appeared on the muster roll of the appellant. '.rhe tribunal appreciated the force of this Tiu KiJ/oskar O~ EngiMs Lid., Ki1ktt, Poona The Workmen Gajendragadka' J 'I ht Kir/01k1Jr Oil Engirus Ltd., Kirktf, Pot'Jl/n 1 ht H'orkme.1 Gajmdragadfor J, argument. It is common ground that under s. 79 of the Factories Act.

1948, it is only where a worker hRs worked for a period of 240 days or more in a factory during a calendar year that he becomes entitled during the subsequent calendar year to leave with wages for a number of days calculated at the rate of one day for every twenty days of work performed by an adult workor in the previous calendar year, or at the rate of one day for every fifteen days work performed by a child. Tho tribunal observed that it was not the intention of the award to depart from the basic principle prescribed by s. 79; and so it made the necessary clarification by adding that in order to entitle him to the privilege as directed by the awi>rd evP.ry workman must put in 240 days or more of actual working during the previous calendar year. Thus, in rogard to the provision made by the award as to privilege leave the clarification claimed by tlie appellant was made.

In regard to the second point on which clari- .fication was sought the relevant direction in the nward r<'.ads thus : "At present if a workman works on a weekly off or on a holiday, he gets a substituted holiday undt1r the Factories Act but no additional pa~·mcnt. In my opinion a workman makes plans well in advance about spending his holidays. H<, spends his time in the company of his colleagues and refrcsheR himself. If he gets a substituted holiday, he is deprived of his enjoyment. He Rhould therefore be compen· sated in money as well as by a day off. I th<>refore direct that if a workman has to work on a weekly off or on a holiday (paid or unpaid) ho should be paid I~ times his wages and dearness allowanco over and above 1 substituted holiday." I The appellant urged before the tribunal that this direction needed to be clarified because as it stood it was likely to impose on the app'llla'lt very heavy financial burden.

The trihunll held that the direction itself was very clear and th:i.t under the guise of clarification the appellant was seeking its modification. So the tribunal rejected tho appellant's claim for any clarification in that behalf. In the present appeal the learned Attorney- General attempted to argue that the aocnmulation of privilege leave up to 45 days allowed by the award was not justified. Tn our opinion, this argument cannot be entertained in the present appeal for two reasons. First, no such plea appears to have been made before the tribunal in the present clarification proceedings and so the appellant cannot be allowed to raise a new plea now. Be~ides, it is neoessesary to bear in mind the limitations of the enquiry permitted under the proceedings contemplated by s. 36A of the Act.

The said section empowers the appropriate Government to refer any question to the tribunal if the said Government is s-ttisfied that any diffiiculty or doubt arises as to the interpretation of any provision of an award made by the said tribunal. It further provides that when such a question is referred to it the tribunal shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such p'Lrties. It is thus clear that the scope of the enquiry under s. 36A is limited to the decision of the difficulties or doubts ariRing as to the interpretation of any provision in the award. If the words used in any provision of an award are ambiguous or obscure and it is not reasonably possible to interpret them the diffieulty arising from the use of such ambiguous or obscure words may be resolved by moving the appropriate Government to make a roforencc under s. 36A.

It is obvious The Kirlo1kar Oil Engines Ltd,, Kirkee, Poona TJ.e ft'orl.:men Gajendragat/l:;ar J. Tiu Kvto.i.., Oil En_r:ints l.Jd., Kirktt, Poona Tli1 W01ktnttl Gait11dragaJkar J. that any question about the propriety, oorreotness or vali<lity of nny provision of tbc award would bo outside ~he purview of the enquiry contemplated by the section. If a party to the award is aggrit>ved by any of its provisions 011 the merits the only remedy available to it is by making an appeal, say for instance under .~rt. l:l6 of the Constitution, to this Court. A grievance felt by a party against any provision of the award can be ventilated only in that way and not by adopting the procedure prescribed by s. 36A. Thus, the enquiry permissible under s. :lGA is limited to the question of tho interpretation of the provision of the award in question and no more.

That is wby, we think, that even if the appellant had sought to raise the question about the propriety of allowing the accumulation of privilege leave up to 45 days before the tribunal, and even if such a question lia<l been referred by the Rtatc Gcl\'crnment to the tribunal under s. 36A, the tribunal would have been justified if in refusing to considn it I ecause the point raised had nothing to do with the intcrpretnt.ion of the provision hut is eoncemed with it.~ merit.~ and its propriety. 'fhcreforc, in our opinion, tho appellant is not <'ntit led to rai8o this point before us in the present appeal. The n<'xt contention raisc·cl by the appellant is against the refusal of the tribunal to entertain its application for clarification in regard tot.ho provision for the payment to the worker I~ times his wag~s and dearness allowanco ovt•r and above a. substituted holiday if he has to work on a weekly off or on a. holirlay (paid or w1paid ).

The grievance of the a.ppolla.nt in 8ubsta.nce is that in 1956 and 19.57, on account of shortage of electrical energy for industrial purposes the State Government compelled the factories to change their weekly holidays from Sunday to some other week day, oaoh factory or group of factories observing one week day as weekly off. According to the appellant, if a handful of workmP,n are to work on a weekly off or on a 1 (1) holiday when the whole factory is closed then there would be some justification for making the payment to the workm~n required to work on such a day; b~1t there would be no justification for making such payment where the whole factory works on a weekly off or on a holiday.

In support of this contention the appellant reli~s on the observation made in the original award that the basis for directing the additional payment for working on a weekly off or on a holiday is that the workman is deprived of an opportunity to spend his time in the company of his colleagues and refresh himself. It is urged that when all his colleagues are working there is no point in saying that anyone is deprived of an oppor. tunity to spend his time in the company of his colleagues. The tribunal was not impressed by this argument and so it has refused to make any olarifi. cation-cum-modification in its award. It is significant that the argument based on the orders issued by the State Government requiring the factories to change their weekly holidays owing to shortage of electric energy was not ra.ised before the tribunal at the time when it originally heard the dispute between the parties.

It has stated in the present order that it looked at its notes of arguments and noticed that no such plea was raised before it at that time. Besides, the tribunal has observed that having regard to the definition of the word "week" under s. 2 (f) of the Factories Act as well as the provisions of s. 52 of the said Act it would have been open to the appellant to have another day of the week declared as the first day of the week for its purposes. If the appellant had adopted such a course the difficulty on which it relied would not h we arisen. The appellant contends that the reasons given by the tribunal in rejecting its claim for clarificati 1n are not sound. We are not impressed by this argument. As we have already pointed out, the present argument ignores the)imitations of the scope of the 19111 Tiu ll"ir/osk<rr Oil EnzWsLtJ., K irkee, P'*1a Tiu Workmtn GajtndragaJkar J, JS6J 111/tirloskar Oil EngintJ L1J., Jrir~t. Poo11a TJi, W"'kmtn Goj11dra&adkar J. J96J Novtmh" 20.

498 SUPREME OOURT REPORTS [1962] SPPP. enquiry nnder s. 36A. It is clear thnt in substance tho ar~nmeut is that the direction isaued by the award in regard to the payment in question should be mo<lific<l, and in support of the claim for modification reliance is placed on the relevant orders issued !Jy the StatP Government for changing the weekly holidays. Such n claim cannot obviously be entNtained in clarification proceedings under s. 36A. A proceeding contemplated bys. 36A is not a procc<>ding intended to enable the tribunal to review or modify its own order; it is intended to enable the tribunal only to clarify the provisions of its a'mrd where a difficulty or doubt arises about the interpretation of the provision.~. Quito clearly the impugned provisions contained in paragraph I 4 of the award in r<'lation to this demand aro clear and unnmbi~ous.

Whatever may be thr appellant's grievance in respect of the validity or the propriety of tho said directions there is no <lifficnltv or doubt about their meaning; and so \rn are satisfied that tho tribunal was right in refusing to alter the said direction in the present proeei>dings. The result is the appeal fails and is dismiRSerl with costs. A pperil diamia.~Pd. M/S. MOTIPUR ZAMINDARY CO. (P) LTD. THE STATE OF RIHAR (R. P. RmTIA, c .. T., .T. r •. KAPUR, M. HmAYATUJ.T.AH, J. C. SHAH and J. R. MunHOLKAR, JJ.) Salu Ta.y,--Exemplion of green 1JPqe/able.<-S1tqar Can•, if Jails williin ezemption-Dealtr-Produc.r of •>1qar cant., whether a dtalt.r-Bihar Sak• Ta.-r Acl, 1.?47 (Bihar 19 of 1947), ..,, 2(c), 6-Noti{ication No. 9881-F 7 dat&l Auqust 28, lf/47- Rihar Annual Finance Act, 1950. Under s. 6 of the llihar Sales Tax Act, 1947, the Government issued a notification e."(empting cert;lin goocls from the