National Tobacco Co v. Fifth Industrial Tribunal — 1973 DIGILAW 276 (CAL)

JUDGMENT 1. The petitioner Messrs National Tobacco Co. of India Ltd. has challenged the order passed by the 5th Industrial Tribunal, West Bengal on a reference under Section 36a of industrial Disputes Act (hereinafter referred to as the Act. It is necessary to refer to the circumstances which led to the said reference under the Act. The workmen of the petitioner company raised an industrial dispute on various conditions of service against the employer By an order dated 21.7.1961 the Government of west Bengal referred the dispute for adjudication to the 5th industrial Tribunal. One of the disputes being Issue No. 5 related to the dearness allowance to be paid for all categories of workmen. The Tribunal made an award on 25th April, 1965 which was published in the Calcutta gazette in its issue dated 10th June, 1965. The award fixed the rate of dearness allowance as per basis fixed by the Minimum Wage Committee and linked with the cost of living index. The workmen preferred an appeal against the said award under Art. 136 of the Constitution of India before the Supreme Court. The Supreme Court by its judgment and order dated 18th October, 1968, modified the award of the Tribunal on this issue by directing that the dearness allowance variation should be at Re. 1/- for every five point with hundred as the Base for the year 1939 on parity with the award of the third Major Engineering Tribunal. There were other points also raised before the Supreme Court and the appeal was partly allowed and the award given by the Tribunal was varied to the extent indicated in the said judgment of the Supreme Court. Thereafter the workmen of the petitioner raised various disputes in interpreting the said award of the Tribunal in the light of the judgment of the Supreme Court. It appears from the order of the Tribunal that after several meetings between the petitioner and the Union representing the workmen it was decided that the disputes regarding the interpretation of the award on the question of dearness allowance in the light of the supreme Court's decision should be referred to the Tribunal for interpretation under Section 36a of the Act. The government was thereafter moved and the present reference under Section 36a of the Act was made to the Tribunal on the following issues : -"what is the exact interpretation of the award of the 5th Industrial Tribunal published at pages 492-505 of the Calcutta Gazette part 1c dated the 10th June, 1965 over issue No. 5 i.e. D.A for all categories of workmen, in the light of the judgment of Hon'ble Supreme Court of India dated the 18th October, 1968" 2. Although on a joint representation the dispute was referred under section 36a of the Act to the Tribunal curiously enough when me matter came up for hearing the petitioner raised a preliminary objection as to the maintainability of the reference. It was contended before the Tribunal that the award having been merged in "the judgment of the Supreme Court, the reference under Section 36a for the interpretation of the award is incompetent. The Tribunal negatived that contention. The present rule nisi is directed against the said order of the tribunal. At the time of the hearing of this rule the learned Counsel for the petitioner reiterated the same contention which was urged before the Tribunal. It has been contended before me that when an appeal has been preferred, under Art. 136 of the Constitution against the award of the Tribunal the: judgment of the Supreme Court is the operative order and the award of the tribunal has ceased, to be to award operative under the law. Under Section 36a of the Act, if there is any difficulty or doubt as to the interpretation of any provision of an award, the government may refer the question to the Tribunal. In the present case as the award has ceased to be operative as an award any reference on the interpretation of any provision of such an award is incompetent and without jurisdiction. 3. The above contention of the learned Counsel for the petitioner is based on the principle of merger of an order of an inferior tribunal in the order of a superior appellate or revisional authority. 3. The above contention of the learned Counsel for the petitioner is based on the principle of merger of an order of an inferior tribunal in the order of a superior appellate or revisional authority. It has been decided by the Supreme Court that when an order of an original authority is taken in appeal to the appellate authority and the appellate authority has disposed of the appeal by way of dismissal or reversal or modification of the order appealed against, it is the appellate order which is the operative order. In such a case if the appellate authority is beyond the territorial jurisdiction of the High Court, the High Court cannot issue a Writ even to the original authority when it cannot issue a Writ to the appellate authority. (See (3) Collector of Custom, Calcutta v. East India Commercial, Co. Ltd, and ors. A.I.R. (1963) S.C. 1124. The principle that the appellate order is the operative order after the appeal is disposed of, is the basis of the rule that the decree of the lower court merges in the decree of the appellate court. In view of the above decision it cannot be doubted that an order of on inferior tribunal appealed against and confirmed or modified or reversed by a superior tribunal gets merged in the final order on appeal. But this doctrine of merger is not a doctrine of rigid and universal application and is cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed on appeal or revision, there is a fusion or merger of the two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. (5) State of Malras v. Madurai Mills co. Ltd. 19 S.T.C. 144 (B.C.) A.I.R. 1967 S.C. 681. The principle that the decree of a court in the first instance may be said to have been merged in the decree passed on appeal there from or even in the order passed in revision has been invoked for certain limited purposes viz. (5) State of Malras v. Madurai Mills co. Ltd. 19 S.T.C. 144 (B.C.) A.I.R. 1967 S.C. 681. The principle that the decree of a court in the first instance may be said to have been merged in the decree passed on appeal there from or even in the order passed in revision has been invoked for certain limited purposes viz. for the purpose of corn putting the period of limitation for an execution of a decree as in the case of (1) Batuk Nath v. Munni Dei (41 indian Appeal 104) or for computing the period of limitation for an application for final decree in a mortgage suit as in (4) Jowad Hussain v. Gendan singh (53 Indian Appeal 197. The supreme Court in the case of (6) State of U. P. v. Md. Nooh (A.I.E 1958 S.C. 86) has noticed the limited parpose for which such principle has been relied upon. The doctrine of merger has also been applied for determining the territorial jurisdiction of the High. Court to issue Writ under Art.226 of the Constitution when appellate authority disposing of the appeal is not within the territorial jurisdiction of the said High Court. 4. The application of this doctrine of merger is however of a limited nature and to a large extent depends on the nature of the appellate or revisional order in each case and the scope of the statutory provision conferring the appellate or revisional jurisdiction. In the case of (2) C.I.T. Bombay v. Amritlal Bhogilal and Co. (34 I.T.R. 130 = A.I.R. 1958 S.C. 868) the income-tax Officer passed a composite order viz. an order granting registration of the firm and making an assessment on the basis of the registration. The appeal was taken by the assessee to the Appellate Assistant Commissioner against the composite order of the Income-tax Officer. The High court held that the order of the Income-tax officer granting registration must be deemed to be merged in the appellate order. On an appeal the Supreme Court overruled the decision of the high Court holding that the order of registration made by the Income-tax officer did not merge in the appellate order of the Appellate Assistant Commissioner because the order of registration was not the subject matter of appeal before the appellate authority. In the case of State of Madras v. Maduria Mills Co. In the case of State of Madras v. Maduria Mills Co. Ltd. (vide supra), an order of assessment by the Deputy commissioner of Commercial Taxes was not considered by the Supreme court to have been merged in the order made in revision by the Deputy Commissioner of Commercial Taxes. In view of the fact that the question for which a subsequent revision proceeding was initiated by the Board of Revenue was not the subject matter of revision before the Deputy Commissioner of commercial Taxes the doctrine of merger could not be invoked in the circumstances of that case. It is therefore to be considered whether in the circumstances of the present case the award having been modified by the judgment and order of the Supreme Court in appeal has ceased to be an operative award and has got merged in the judgment of the supreme Court so that any reference under Section 30a of the Act for interpretation of any provision LI such an award becomes incompetent. An award under Section 2 (b) of the Act has been defined to mean an interim or final determination of any industrial dispute or any question relating thereto by any Labour Court, Industrial tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10a of the Act. When therefore the Tribunal has decided the industrial dispute referred to it for adjudication such a decision is an award within the meaning of the Act. Section 36a was inserted by the Industrial Disputes (Amendment and miscellaneous Provisions) Act, 1956. The said section provides for the interpretation of any provision of any award or settlement where any difficulty or doubt arises as to the said interpretation. This power is generally invoked when the employer and its employees are not agreed as to the interpretation of an award or settlement and the appropriate government is of the opinion that a difficulty or doubt has arisen in regard to any provision in the award or settlement. This section was introduced to deal with a situation which may arise where the awards or settlement are obscure, ambiguous or otherwise present difficulties in construction. This section was introduced to deal with a situation which may arise where the awards or settlement are obscure, ambiguous or otherwise present difficulties in construction. If an award has been the subject matter of an appeal under Art. 136 before the Supreme Court and if such an award is confirmed or modified by the judgment of the Supreme Court, for the purpose of Section 36a of the act the award has not ceased to be so and has not lost its quality and character as an award. It remains an award within the meaning of the Act as modified by the judgment of the Supreme Court. If the interpretation suggested by the learned. Counsel for the petitioner is to be accepted it may lead to certain anomalous situation under the Act. An award under section 17a becomes enforceable on the expiry of 30 days from the date of its publication under See. 17. Such an award which has become enforceable shall be binding on all parties to the industrial dispute under sec. 18 (2) and (3) of the Act, Under Sec. 23 (c) no workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare any look-out during any period in which an award is in operation, in respect of any of the matters covered by the award and any strike or lock out in contravention of Section 23 is to be considered as illegal under Sec. 24 of the Act. A person who commits any breach of any term of any award which is binding upon him is liable to be punished with imprisonment and with fine under Sec. 29 of the Act. Sec. 63c of the Act: authorises the workman to make an application to the appropriate government for the recovery of the money due to him under an award and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that to the 'collector who will recover the same as on arrear of land revenue. 5. If the contention made by the earned Counsel for the petitioner is accepted, in a case where an award of an industrial tribunal is the subject matter of an appeal under Act. 5. If the contention made by the earned Counsel for the petitioner is accepted, in a case where an award of an industrial tribunal is the subject matter of an appeal under Act. 136 of the Constitution and is modified or confirmed by the judgment of the Supreme Court, the machinery provided under the Act for the settlement of industrial dispute and the enforcement of the decision of the industrial tribunal cannot be availed of because the award has ceased to be an operative award. Such a construction not only is inconsistent with but is repugnant to the very scheme and object of the Act. The Act is primarily meant for regulating the relation of employer and workmen-past, present and future. Its primary object is the promotion of measure for securing and preserving amity and good relation between the employer and the workmen and to ensure social justice to both employer and employees and advance the progress of industries by bringing about the existence of harmony arid cordial relationship between the parties. To achieve its object, the Act provides for the different machineries for the settlement of industrial dispute without disturbing industrial peace. It is only in that context one has to consider the underlying purpose and object for which Sec. 36a of the Act was introduced by way of amendment. This section was intended to deal with a situation where after an award has been made by the industrial tribunal, some genuine difficulties or doubts are felt regarding the interpretation of any provision of such an award. It is difficult to understand why a reference under Sec. 36a cannot be made to the tribunal for the interpretation of any provision of the award when such an award has been the subject matter of an appeal before the Supreme Court and has been modified by the judgment of the Supreme Court The argument that when the Supreme Court has disposed of the appeal arising out of the award of the Tribunal, the Tribunal should not have the competence to interpret the decision of the Supreme court being the higher court, has no attractive persuasion. Under Sec. 33c (2)of the Act the Labour Court when called upon to compute benefit claimed by the workmen is in the position of an executing Court and as such has interpret an award. Under Sec. 33c (2)of the Act the Labour Court when called upon to compute benefit claimed by the workmen is in the position of an executing Court and as such has interpret an award. Where there is a dispute as to the right there under or as to its correct interpretation. The Labour court thus very often has to construe the award in order to ascertain whether the award under which the right is claimed was or was not beyond the scheme of the demand; in other words whether the award was within jurisdiction. (7) Voltas Co. Ltd. v. J. M. Demello, A. I. R. (1971) S. C. 1903. If is true that when the award has been modified by the judgment of the Supreme Court, the Industrial Tribunal exercising its power under Section 36a of the Act is not competent to so behind the award as modified by the judgment of the Supreme Court but I see no reason why the Tribunal will not be competent to construe the award and to ascertain its precise meaning when any difficulty or doubt arises as to the interpretation of any provision of the award. If the labour court as an executing court is competent to construe the award in order to ascertain its precise meaning there is no reason why the tribunal is incompetent to do so where there is a dispute as to the interpretation of any provision of such an award. The Tribunal has been invested with such power under Sec. 36 of the Act in order to avoid prolonged litigation and unnecessary expenses involved in appeal or other litigation. In my view an award oven whom is: modified by a judgment of the Supreme; court does not cease to be an award and the reference to the Tribunal under Sec. 36a of the Act for the interpretation of the provision of such an award is not without jurisdiction. As no other point was urged in support of this application, the application fails. The rule is discharged. Interim, order, if any, is vacated. There will be no order as to costs. Rule discharged.