Judgment :- 1. The petitioner M/s. E.I.D. Parry Ltd, is a Company incorporated in England with its principal office in India at Madras. It carries on various types of industrial and commercial activities M/s. Parrys Confectionery Ltd., which is said to be engaged in a different industry and different lines of business is a sister concern. The; petitioner company owns a sugar factory at Nellikuppam, a Ceramics, Chemical and Fertiliser Factory at Ranipet, a compound fertiliser factory at Ennore, a single superphosphate fertiliser mixing factory at Tadepalli, genlite project factory and light engineering products factory at Ennore and besides this, fertiliser mixing units at Cuddalore, Katpadi, Mettupalayam, Panruty Thirutnangalam, Trichy, Kottayam, Feroke and other places. The last two are in Kerala State, Besides this the petitioner Company has a number of branch/ regional offices which are said to be commercial establishments and not factories and these are located in various places in South India and some places in North India also. 2. In the petition challenge is made to an Award in an Industrial dispute between the petitioner company and the Staff of the petitioner company working in the fertiliser mixing unit at Kottayam. Ext. P1 is the award. Mixing of fertilisers in the unit at Kottayam is done by manual labour of workmen engaged by independent contractors. The staff who raised the industrial dispute are the ones employed directly by the petitioner in the mixing unit at Kottayam. Of the several issues referred for adjudication which were the subject matter of Ext-PI Award, I am concerned in this petition only with issues 1 and 2, namely, the revision of the basic scales of pay, grant of special increments and fitment with effect from 141967 and revision of D. A. with effect from 141967. 3. The workmen concerned in the dispute are non covenanted staff employees of the petitioner company. 3. The workmen concerned in the dispute are non covenanted staff employees of the petitioner company. The ground on which the second respondent Union representing such workmen demanded revision of wages; and D. A. was that in the Head Office, Branch Offices and Regional Offices which are purely commercial establishments the management has revised the wage scales of clerical as well as subordinate staff, that the wage scales of the workmen represented by the second respondent were the same as their wage scales till 1967, that when the wage scales in the Head Office, Branch Offices and Regional Offices were revised, that was not extended to the staff working in the Kottayam fertiliser mixing unit and this has resulted in discriminatory treatment that has given rise to the demands made by the second respondent's union. The claim for wage rise was contested by the petitioner company. According to it the wages that was being paid to the workmen at Kottayam were fair and adequate and required no revision. It was also contended that the unit at Kottayam had no capacity to meet the demand for revision though, later, during the trial the stand taken was that the petitioner company had no capacity to make such payment. Mention is made of the constitution of Wage Boards for standardisation of wages for the various types of industries in India by the Government of India and it was said that the Wage Board appointed for the fertiliser industry fixed the scale of wages for the workmen employed in such industry. The petitioner has a case that though this did not in terms apply to mixing units, as a matter of concession this was extended to the mixing units also. Ia regard to the claim by the employees to enhanced wages and D. A. it was held by the Tribunal in its Award that the concerned employees of the mixing unit at Kottayam are entitled to get the scale of pay and rate of D. A. with all the accompanying increments on a par with their own colleagues in the Regional Office at Kottayam and other Branch offices in South India. In Para.26 of the Award the reasons for this conclusion were stated summarising the discussion on this question. In Para.26 of the Award the reasons for this conclusion were stated summarising the discussion on this question. It was found that it was a longstanding practice of the management up to the year 1968 to maintain parity in the matter of payment of wages and D. A. to all their employees who were similarly placed, whether they be in the Regional Offices, Branch Offices, Mixing Centres or the Head Office and no reason was shown why a different treatment should have been extended to the staff of the mixing centres thereafter. It was also found that the nature of work done by the staff whether it be in the regional offices, branch offices, the Head Office or in the mixing units was the same. The Tribunal observed that the clerical and typing work whether it be in the Regional Office or in the mixing centres cannot be different essentially. It further noticed that the Union's demand was not for Madras rates, but that, they should at least be treated like clerks and subordinate staff in the Regional Office situated at Kottayam itself. It found that it was only just and reasonable that two sets of people working in the same place, doing practically the same type of work and under the same management should be subjected to the same treatment. Reference was also made to the wages obtaining in what was found to be a similar industry, M/ s. Shaw Wallace & Company, which had also a mixing unit at Kottayam. M/s. Shaw Wallace and Company was the only comparable company and it was the only company which had a mixing unit at Kottayam. Therefore, on a comparison with the wages prevalent in the Kottayam mixing unit of M/s. Shaw Wallace and Company the demand of the Union was found to be justified. The Tribunal also noticed that the disparity in scale of pay and rates of D. A. was introduced by the management unilaterally and it was only just and reasonable to restore the parity which was pre-existing These, in short, are the reasons indicated in para 26 of the Award which led to the revision of wages in regard to the workmen in the mixing unit at Kottayam. 4. Before me several contentions are raised by Counsel for the petitioner company and I will refer to them in seriatum. 5. 4. Before me several contentions are raised by Counsel for the petitioner company and I will refer to them in seriatum. 5. It is said that the Tribunal should have found that the petitioner had no capacity to pay enhanced wages and D. A. and therefore the Award which has not properly taken note of this circumstance must necessarily be open to successful attack. Here I must notice that in the statement before the Tribunal the case of the petitioner was not that it was not in a position to meet the demand for higher wages but that the Kottayam mixing unit did not have the capacity to bear the burden of any such enhancement of wages. Of course, the Kottayam Unit could not be treated as an independent unit and it is certainly not the capacity of the Kottayam Unit that has to be noticed in determining whether fair wages should be given to the workmen. Though this was the plea in the statement filed before the Tribunal, at the time of trial it was attempted to be shown that the petitioner company cannot bear any additional burden by way of enhancement in the existing wages of the employees in the Kottayam mixing unit. This was based upon a balance-sheet for the half-year ending 31st March 1970. It is said that heavy loss was incurred by the company during that half-year and therefore the industry was not in a position to make any further commitment. That, for that particular half-year some loss was caused to the company is not now in dispute, But in the Award several circumstances are mentioned to show that this loss should not be taken as a recurring feature and that was caused due to certain circumstances peculiar to the period in question. That apart, it is a well settled principle in industrial law that is determining wages to be paid to the workman it is not loss or profit of any particular year that is relevant, but it is an overall picture of the financial position, stability of the concern and its capacity to bear the burden by way of enhancement in the wages that is pertinent. May be that due to particular circumstances an industry may suffer loss for an year or two. May be that due to particular circumstances an industry may suffer loss for an year or two. It might have accumulated profits as a concern which had been making considerable profit year after year and there may be no reason to assume that it may not be the case in future. The question whether fair wages or living wages should be awarded to the workmen of a concern would depend upon an appreciation of the circumstances relating to the concern for a number of years past as also its future prospects with a view to assess whether the increased burden would work such hardship upon the concern as may not justify enhancement of wages. Gajendragadkar C. J., in dealing with this question in the decision in A. M. Association etc. v Textile Labour Association (AIR. 1966 S.C. 497) said thus: "The claim of the employees for a fair and higher wage is undoubtedly based on the concept of social justice, and it inevitably plays a major part in the construction of a wage structure." The learned judge further said thus; "The problem of constructing a wage structure must be tackled on the basis that such wage structure should not be changed from time to time. It is a long range plan; and so, in dealing with this problem, the financial position of the employer must be carefully examined. What has been the progress of the industry in question; what are the prospects of the industry in future; has the industry been making profits, and if yes, what is the extent of profits what is the nature of demand which the industry expects to secure; what would be the extent of the burden and its gradual increase which the employer may have to face? These and similar other considerations have to be carefully weighed before a proper wage structure can be reasonably constructed by industrial adjudication, vide Express Newspapers (Private) Ltd. v. Union of India, 19611 Lab. L. J. 339. (AIR. 1958 S.C. 5780). Unusual profit made by the industry for a single year as a result of adventitious circumstances, or unusual loss incurred by it for similar reasons, should not be allowed to play a major role in the calculations which industrial adjudication would make in regard to the construction of a wage structure. L. J. 339. (AIR. 1958 S.C. 5780). Unusual profit made by the industry for a single year as a result of adventitious circumstances, or unusual loss incurred by it for similar reasons, should not be allowed to play a major role in the calculations which industrial adjudication would make in regard to the construction of a wage structure. A broad and overall view of the financial position of the employer must be taken into account and attempt should always be made to reconcile the natural and just claims of the employees for a fair and higher wage with the capacity of the employer to pay it; and in determining such capacity, allowance must be made for a legitimate desire of the employer to make a reasonable profit. In this connection it may also be permissible to take into account the extent of the rise in price structure which may result from the fixation of a wage structure, and the reasonableness of the additional burden which may thereby be imposed upon the consumer. That is one aspect of the matter which is relevant " Applying this rule to the case before me, it cannot be said that the contention of the petitioner has any merit. Though for a particular half year it was shown that profit was not considerable„ the industry had made very huge profits during the previous years and even in regard to the next half year the company bid earned profit. It is not disputed that subsequently also the petitioner company has been making such profit and the position of the company is quite sound. In these circumstances, I do not think that the accident of loss for a particular half year should have any relevance in the matter of determining the wage structure. 6. It is next urged that the Award of the Tribunal is vitiated by several errors. I need not refer to those other than the ones relating to the reasons shown in Para.26 as, apparently it is those reasons which have weighed with the first respondents in determining the question in issue. As to that the main attack by the Counsel for the petitioner is that the determination of wages should have been based upon comparable data in regard to industries of the same character. As to that the main attack by the Counsel for the petitioner is that the determination of wages should have been based upon comparable data in regard to industries of the same character. In fact, one of the grounds urged in the petition is in regard to the rule of determination of wage structure on the basis of comparison on the industry-cum¬region basis; it is that industry should be given more emphasis than region. It is said that the only industry which is said to be comparable is that of M/s. Shaw Wallace and Company and Counsel argues that sufficient material had not been placed before the Tribunal for assuming that it was comparable with that of the petitioner company. It is therefore the Counsel's contention that in the absence of such comparable data in regard to similar industry the Tribunal ought to have turned down the demand by the workmen for any enhancement. 7. The principles which should weigh with a court in deciding whether another industry is comparable with the industry in regard to which dispute has arisen are seen enunciated by Gajendragadkar J. in the decision of the Supreme Court in Workmen of Balmer Lawrie & Co. v. Balmer Lawrie & Co, (1964-I-L.L.J. 380), The learned judge said thus: "Besides, it is necessary to emphasize that in dealing with the comparable character of industrial undertakings, industrial adjudication does not usually rely on oral evidence alone. This question is considered in the light of material facts and circumstances which are generally proved by documentary evidence. What is the total capital invested by the concern, what is the extent of its business, what is the order of the profits made by the concern, what are the dividends paid, how many employees are employed by the concern, what is its standing in the industry to which it belongs, these and other matters have to be examined by industrial adjudication in determining the question as to whether one concern is comparable with another in the matter of fixing wages. Now, it is obvious that these questions cannot be decided merely on the interested testimony either of the workmen, or of the employer and his witnesses. Now, it is obvious that these questions cannot be decided merely on the interested testimony either of the workmen, or of the employer and his witnesses. Unfortunately, the tribunal has lost sight of this important feature." It is, no doubt, true that if comparison is called for one would necessarily have to ask whether the concern with which companion is attempted is one of the same size in regard to the extent of business, the volume of profit made, the volume of the turnover, the rates of dividends paid, the strength of employees and such other relevant matters. Therefore when the second respondent Union wanted to rely on the pay structure in the mixing unit at Kottayam of M/s Shaw Wallace and Company for the purpose of relying on comparable data, attempt should have been made to adduce evidence in regard to these matters concerning Shaw Wallace and Company. But that does not mean that the wage structure in regard to the clerical and other staff would be of no relevance in this context as I would presently indicate. 8. I think, normally the emphasis in the matter of comparison is no doubt upon similar industries in the same region. But when the question is one of determination of the fair wages or living wages in regard to the employees who are not engaged in mannal labour such as staff who are employed in the office doing clerical, typing or other similar work the rule need not be the same. That is because, whether it be in a fertiliser industry or in a sugar factory or in an export-import business, clerical typing and other similar work are more or less of the same character and therefore in such cases emphasis is always on the wage structure in industry and trade in the region. The question would be what is the scale of remuneration obtainable by similar staff in concerns in the same region. No doubt, if evidence is available in regard to the same industry in the same region it may he relevant. But absence of such material does not conclude the question. If evidence is available indicating the wags structure in regard to such staff in industries in the region generally that may be a relevant factor for determining the question. This principle has long been recognised and I would venture to say, is more or less well-settled. 9. But absence of such material does not conclude the question. If evidence is available indicating the wags structure in regard to such staff in industries in the region generally that may be a relevant factor for determining the question. This principle has long been recognised and I would venture to say, is more or less well-settled. 9. In Lipton Ltd. v. Their Employees (1959 (1) L.L.J. 431) the employer was doing business in tea at New Delhi. The evidence of wages obtainable in other concerns like Standard Vacum Oil Company, Thomas Cook (Contintental) Overseas, Burmah Shell, Lever Brothers (India) Ltd., Associated Companies and such others was adduced to show that the wages obtaining in such concerns were considerably higher. It was contended in that case by the employer that there could be no comparison of there concern dealing with tea with these concerns. In answer it was contended by the workmen that the nature of the work done by employees like drivers, sweepers, peons, clerks, godown keepers and the like were the same whether it be in the Lipton's concern or in the various other concerns. Though directly this question was not dealt with by the Supreme Court in that case, the Court observed that it was not a case where the Tribunal had no material before it. In other words this comparison was accepted as relevant by the Supreme Court, 10. In the case in French Motor Car Co. v. Their Workmen (1962 (2) L.L.J. 744) the Supreme Court dealing with this question said thus; "Turning now to the wage scales for clerical and subordinate staff, the argument on behalf of the appellant is the same. viz., that the tribunal has taken for comparison concerns which were really not comparable. There is, however, difference between workshop employees on the one hand and clerical and subordinate staff on the other, for workshop employees generally require a particular skill which is peculiar to the particular industry, while the same cannot be said to a great extent with respect to the clerical and subordinate staff." The learned judges noticed that the question considered in the case of Lipton Ltd. v. Their employees (1959-1-L LJ 431) to which I have adverted, was a similar one. The same view has been taken by the Supreme Court in Greaves Cotton and Co v. Their Workmen (1964-I-L.L.J. 342). The same view has been taken by the Supreme Court in Greaves Cotton and Co v. Their Workmen (1964-I-L.L.J. 342). It was contended in that case that the Tribunal had gone wrong in applying the industry-cum-region formula for fixing the wages and D.A. and had made comparison with concerns which were not comparable. It was also urged in that case that the Tribunal had relied more on the region aspect of the industry-cum-region formula and not on the industry aspect when dealing with clerical and subordinate staff and in this it went wrong. It may be noticed that the same contention has been raised here also. Certain earlier decisions of the Supreme Court were relied on by Counsel before the Supreme Court in that case. Dealing with these decisions Wanchoo J. speaking for the Court said thus: "In the French Motor Company Case (1962 II L.L.J. 744) however, this court held so far as clerical staff and subordinate staff are concerned that it may be possible to take into account even those concerns which are engaged in different lines of business, for the work of clerical and subordinate staff is more or less the same in all kinds of concerns. We are of opinion that there is no inconsistency as urged in the principles laid down in these two cases. As we have already said, the basis of fixation of wages and dearness allowance is industry cum region. Where there are a large number of industrial concerns of the same kind in the same region, it would be proper to put greater emphasis on the industry part of the industry cum region principle as thai would put all concerns on a more or less equal footing in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose, wages and dearness allowance also go into calculation of production costs. But where the number of comparable concerns is small in a particular region and therefore the competition aspect is not of the same importance, the region part of the industry cum region formula assumes greater importance, particularly with reference to clerical and subordinate staff and this was what was emphasised in the French Motor Car Company case (1962 II L L.J. 744) where the Company was already paying the highest wages in the particular line of business and therefore comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage-scales and dearness allowance. The principle therefore which emerges from these two decisions is that in applying the industry cum region formula for fixing wage-scales the tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry; in such a case in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small, it is the region part of the industry'-cum region formula which assumes importance particularly in the case of clerical and subordinate staff, for as pointed out in the French Motor Car Company case (1962 II L.L.J. 744) there is not much difference in the work of this class of employees in different industries." The position is well summed up in the passage above cited. Whether emphasis should be on similar industries or should be on industries in general in the region is a matter depending upon the facts of each case. In a case such as the one before me where M/s. Shaw Wallace and Company is said to have a similar unit and where the question concerned is one of revision of the wage structure of staff other than that engaged in manual labour, any reference to wage structure of such staff in that industry would be quite relevant even assuming that it is not shown to be a comparable unit. Therefore, I do not see any impropriety in the Tribunal having referred to and relied on the wage structure in the mixing unit at Kottayam of M/s. Shaw Wallace & Company. Therefore, I do not see any impropriety in the Tribunal having referred to and relied on the wage structure in the mixing unit at Kottayam of M/s. Shaw Wallace & Company. 11. Equally relevant is the fact that even in the petitioner's own concern, namely in the Regional office at Kottayam, staff who are doing similar clerical and other work are getting a higher salary. So is the fact that for a number of years they were getting the identical salaries. In the Original Petition it is stated that upto 1960 there was parity But in the counter-affidavit of the second respondent it is stated that upto 1968 there was parity and the finding of the Tribunal is that there was parity upto 1967 and nothing has been shown to disturb this finding. If these be the circumstances of the case, it cannot be said that the conclusions of the Tribunal are unsupported by relevant data. If there was material before the Tribunal to decide the question and apparently there was such material is not shown to be irrelevant and the Tribunal after assessing such material found that the demand for revision of the wage structure was justified,1 cannot see any reason to interfere with the decision of the Tribunal. I therefore hold that there is no case to interfere with the Award of the Tribunal under Art.226 of the Constitution of India. The Original Petition is dismissed with costs.