JUDGMENT - D.R. DHANUKA, J.:---By this petition filed under Article 226 of the Constitution of India, the petitioner-employer has impugned part of the Award dated 24th April, 1987, made by Shri. S.A. Patil, Member, Industrial Tribunal, Maharashtra State, Bombay, in Reference (IT) No. 159 of 1979 pertaining to demands of workmen of Hair Cutting Saloons concerned in respect of wage scales, dearness allowance, leave facilities, gratuity, bonus, etc. The Maharashtra Kamgar Sabha represents the workmen and is a recognised Union. Several companion petitions pertaining to the same very Award dated 24th April, 1987, are listed along with this writ petition for being heard together. The said Industrial Tribunal's Award is a composite Award and pertains to various Hair Cutting Saloons. 2. By its letter dated 23rd October, 1978, the respondent No. 1 -Union sent a Charter of demands to the petitioner and 34 other Hair Cutting Saloons making a demand for fixation of scales of pay, annual increments, dearness allowance, gratuity, bonus etc. in respect of the workmen employed in various Hair Cutting Saloons. On 21st January, 1979, the said demands were admitted in conciliation. By its order dated 22nd June, 1979, the Government of Maharashtra made the order of reference in respect of all these demands to the Industrial Tribunal in exercise of the powers conferred on it under Clause (d) of sub-section (1) of section 10 read with sub-section (5) of section 12 of the Industrial Disputes Act, 1947. A copy of the said order of reference is appended to this judgment for the sake of ready reference in view of it being contended by the employees that the impugned Award is beyond the scope and ambit of order of reference. The parties filed their respective pleadings' and led oral and documentary evidence. 3. Pending the reference, the respondent No. 1-Union entered into settlements with some of the employers and pursis were filed to the effect that the respondent No. 1-Union did not want to prosecute the reference as regards some of the employers whose names are to be found in para 6 of the Award. The Saloons are registered under the Bombay Shops and Establishments Act, 1948. Very very few workmen are employed in these establishment. In some of these establishments, the workmen employed are only two. The sole proprietor or partners of Saloons also work in most of the Saloons. The Saloons are registered under the Bombay Shops and Establishments Act, 1948. Very very few workmen are employed in these establishment. In some of these establishments, the workmen employed are only two. The sole proprietor or partners of Saloons also work in most of the Saloons. In most of the cases, employers and workmen, both, belong to the weaker section of the society. 4. Before I summarise the contents of the impugned Award, it would be convenient to refer to certain Notifications issued by the Government of Maharashtra under the Minimum Wages Act, 1948, as one of the demands adjudicated upon the impugned Award pertains to wages. On 24th March, 1971, the Government of Maharashtra issued Notification No. MWA/4268/90053/Lab-III fixing minimum rate of wages in respect of the employees working in any shop or commercial establishment other than any Bank or in any employment included in the Schedule to the relevant Act. By the said Notification, the basic rates of minimum wages were prescribed for skilled workman at Rs. 200/- per month in zone I and for semi-skilled workman at the rate of Rs. 160/- per month in the said Zone-I. By the said Notification, expressions "skilled", "semi-skilled", and "unskilled" were defined. Zone-I, as defined under the said Notification, comprises under the area within the limits of Municipal Corporation of Greater Bombay and Thana Municipal Corporation. In respect of Hair Cutting Saloons, Hair Dressing Saloons, or Hamamkhana, a separate Notification was issued by the Government of Maharashtra in pursuance of powers conferred on it under the relevant provisions of the Minimum Wages Act, 1948, on 11th August, 1982. The said Notification was brought into force with effect from 15th August, 1982. The Schedule to the said Notification reads as under : Sr. Class of Employees Basic rate per month as No. specified in this column and a special allowance at a rate to be adjusted at such intervals and in such manner as directed in the Appendix to this notifica tion. Zone I Zone II Zone III Zone IV Rs. per Rs. per Rs. per Rs. per month month month month 1. 2. 3. 1. Category No. 1 Persons doing the work of hair cutting, 390 365 350 340 hair cutting with shaving, hair setting hair setting with saving hair dyeing and persons doing jobs. 2. Category No. 2. Zone I Zone II Zone III Zone IV Rs. per Rs. per Rs. per Rs. per month month month month 1. 2. 3. 1. Category No. 1 Persons doing the work of hair cutting, 390 365 350 340 hair cutting with shaving, hair setting hair setting with saving hair dyeing and persons doing jobs. 2. Category No. 2. Persons doing work of clean shaving 350 330 315 300 (Hajamat) shaving, shaving and supply of water in Hammamkhana and persons doing similar jobs. 3. Persons doing work of cleaning 310 295 282 270 sweeping and water supplying in Hamam Khana and any other work of an unskilled nature. Explanation:---For the purpose of this Notification :--- a) Zone I shall comprise the areas falling within the limits of Municipal Corporations, and the cantonment areas of Pune, Kirkee, Dehu and Kamtee. b) Zone II shall comprise the areas falling within the limits of 'A' class Municipal Councils and the cantonment areas of Ahmednagar and Aurangabad. c) Zone III shall comprise the areas within the limits of 'B' Class 'C' Class Municipal Councils and the cantonment area of Nashik Road-Deolali. d) Zone IV shall comprise the areas in the State of Maharashtra not included in Zones I, II and III above. e) The minimum rate payable to any employee employed in any category on daily wages shall be computed by dividing the minimum rate of monthly wages fixed for the class of employees to which he belongs by 26, the quotient being stepped upto nearest paise." 5. In paragraph 9 of the said Award, the learned Member of the Industrial Tribunal held that the workmen will be entitled to minimum wages and special allowance as prescribed under the said Government Notification dated 11th August, 1982, for the period commencing from 15th August, 1982. The Industrial Tribunal held that prior to 15-8-1982 all the Saloons fell within the definition of Commercial Establishment under the Bombay Shops and Establishments Act. By the said Award, the Tribunal directed that for the period from 1-11-1978 till 15-8-82 the workmen involved in the reference, shall be paid wages and special allowance under the Minimum Wage Notification for shops and commercial establishments on the basis of categories of skilled, semi-skilled and unskilled as specified in the Minimum Wage Notification for Saloon dated 11th August, 1982. In para 9 of the said Award, it was clarified that a workman falling in the skilled category under the Notification dated 11-8-1982 shall be treated as a skilled workman under the Notification issued under the Bombay Shops and Establishments Act, 1948. Thus, the Tribunal granted relief to workmen in this respect for the period commencing from 1st November, 1978 to the extent set out in the Award. 6. In para 10 of the Award, the Tribunal held that the workmen falling in the skilled category who had completed three years of continuous service by the end of August, 1982, shall be given an increase of Rs. 10/- per month in the minimum wages effective from 1-9-1982 and those who had completed five years of continuous service would be granted an increase of Rs. 20/- per month effective from 1-9-1982. The Tribunal further held that in case a workman in the skilled category completed three years and five years of continuous service after 1-9-1982, he-shall be granted increase of Rs. 10/- and Rs. 20/- per month respectively on such completion. In para 11 of the Award, it was held that a workman who put in continuous service of six months shall be treated as a permanent employee. In para 12 of the Award, it was held that each workman shall be paid medical allowance at the rate of Rs. 100/- per year beginning from 1-1-1980. In para 13 of the Award it was held that each employee shall be granted five days casual leave and five days sick leave with a right to encash the unaveiled casual and/or sick leave, as more particularly set out therein with effect from 1st January, 1980. In para 14 of the Award, it was held that the workmen shall be granted three National Paid Holidays under the provisions of the Bombay Shops and Establishments Act. In view of the peculiar nature of the industry, the Tribunal did not accept the demands of the workmen for Uniforms and for bonus. In the past, the Industrial Tribunal has rejected the demand for gratuity in case of workmen employed in Saloons. In this behalf, the employers had relied upon Award in Reference (IT) No. 134 of 1981 and Award in Reference (IT) Nos. 80 and 151 of 1981. In the past, the Industrial Tribunal has rejected the demand for gratuity in case of workmen employed in Saloons. In this behalf, the employers had relied upon Award in Reference (IT) No. 134 of 1981 and Award in Reference (IT) Nos. 80 and 151 of 1981. In this case, the Industrial Tribunal differed from the view taken by the earlier Tribunals and observed that even though the employers were small, they were running their business and earning profits, may be not very and high profits, with the services of their employees and the gratuity ought to be awarded. Accordingly, the Tribunal issued the following directions in this behalf : "I, therefore, direct that the workmen involved in this Reference shall be entitled to the benefit of gratuity under the provisions of the Payment of Gratuity Act, 1972. The provisions of the Payment of Gratuity Act. 1972, shall, therefore, be treated as applicable to the employees/establishments covered in this reference and their employee shall be entitled to claim gratuity under the said Act effective from 1-1-1978". 7. This petition and the companion petitions involve an important and interesting questions of law far-reaching importance which are formulated by me as under :--- i) whether the Payment of Gratuity Act, 1972 is a self-contained Code ? ii) whether the Industrial Tribunal had jurisdiction to adjudicate upon a demand for gratuity in cases where the Payment of Gratuity Act, 1972, is not applicable to an establishment by reason of the establishment employing less than 10 employees ? 8. At the outset, I must state that I am not inclined to interfere with the Award and exercise my discretionary jurisdiction under Article 226 of the Constitutions of India in respect of the demands accepted by the Tribunal other than the demand for gratuity. I must also clarify that this judgment does not and shall not affect settlements in force or the award already made in respect of gratuity which are voluntarily acted upon. 9. The petitioner has specifically contended in the petition that the Industrial Tribunal has no jurisdiction to grant the demand in respect of gratuity, as the Payment of Gratuity Act, 1972, does not apply to the establishment employing less than ten employees. It appears from the Award that the point of jurisdiction was not taken by the petitioner before the Industrial Tribunal in the form it has been presented to this Court. It appears from the Award that the point of jurisdiction was not taken by the petitioner before the Industrial Tribunal in the form it has been presented to this Court. The question of total want of jurisdiction is a question of law and it goes to the very root of the matter. The petitioner is permitted to urge this contention and argue the same on merits. I have, therefore, heard Counsel at considerable length and I must apply my mind to this question of far-reaching importance in detail. 10. In the Silver Jubilee year of free India, i.e., some time in the year 1972, the Payment of Gratuity Act, 1972 was passed by our Parliament and it came into force some time in the month of September, 1972. Prior to passing of the said Act, the only Central Act in force providing for gratuity, was the Act known as "Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955. Some of the State Legislatures like Kerala and West Bengal had introduced their own-State legislation making codifying the law of gratuity. This Act conferred an statutory right on the employees covered under the same Act to claim gratuity from its employers and is a social welfare legislation for the benefit of the employees. The said Act was not made applicable to the establishment in which less than ten persons are employed. Section 1(3)(c) of the said Act empowers and Central Government to extend the said Act to "such other establishments or class of establishments" only in which ten or more employees are employed or were employed at the material time. The petitioner's establishment is excluded from applicability and operation of Payment of Gratuity Act, 1972, as it employes only two employees/workmen. 11. The principal question of law which arises for my consideration is as to whether the Industrial Tribunal can award gratuity in a reference made in respect of the establishments which are excluded from operation and applicability of the Payment of Gratuity Act, 1972. Section 4 of the said Act provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years : (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease. Section 4 of the said Act provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years : (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease. Section 4(2) of the said Act prescribes the formula for computation of the amount of gratuity i.e., at the rate of fifteen days' wages for every completed year of service or part thereof in excess of six months to be computed at the rate of wages last drawn by the employee concerned. Section 4(5) of the said Act reads as under :--- "Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any Award or agreement or contract with the employer." Thus, the said Act guarantees payment of minimum gratuity amount to the "employees" covered under the Act in respect of the establishments which are covered by the said Act. The said Act does not affect "better terms of gratuity" under an Award or an agreement or a contract. The said Act constitutes a special authority for recovery of the gratuity amount and also made provisions for appointment of Inspectors. Section 14 of the said Act is directly relevant. The said section reads as under :--- "The provisions of this Act or any Rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act." 12. At this stage, it is convenient to refer to the provisions contained in section 7-A of the Industrial Disputes Act, 1947, and the extra Item No. 5 in the Third Schedule to the said Act, as reference to both the provisions of the Payment of Gratuity Act, 1972, as well as the provisions of the Industrial Disputes Act, 1947, shall be necessary while appreciating the rival submissions of the learned Counsel on both sides. Section 7-A of the said Act empowers the Appropriate Government to establish Industrial Tribunals for the adjudication of Industrial Disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule. Item No. 5 of the Third Schedule reads as under :--- "Bonus, profit sharing, provident fund and gratuity". Section 7-A of the said Act empowers the Appropriate Government to establish Industrial Tribunals for the adjudication of Industrial Disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule. Item No. 5 of the Third Schedule reads as under :--- "Bonus, profit sharing, provident fund and gratuity". Thus the said Act provides machinery for adjudication of demands for gratuity. The Industrial Disputes Act, 1947 confers substantive rights on the workmen employed in an industry in respect of lay off compensation or retrenchment compensation but not in respect of gratuity. It provides machinery for adjudication of demand in respect of gratuity if the substantive right thereto can be shown to subsist under some other legislating contract, instrument or scheme etc. 13. Shri Patil, learned Counsel for the petitioner in this petition and companion petitions, has submitted vehemently that the provisions contained in the Payment of Gratuity Act, 1972, are self-contained and the workmen cannot invoke the machinery of adjudication under the Industrial Disputes Act, 1947, for Award of gratuity in case of establishment which are employed are excluded from operation or applicability of the Payment of Gratuity Act, 1972. Mr. Patil, has submitted that if the rival interpretation canvassed on behalf of the workmen by Dr. Kulkarni, is accepted, it would lead to nullification of the provisions contained in section 1(3)(b) of the Payment of Gratuity Act, 1972 and defeat the legislative intention expressed therein. Mr. Patil, has further submitted that the intention of the Parliament clearly was to exclude the smaller establishments from the purview of the statutory provisions contained in the said Act of 1972. If there is contract between the employer and the Union or if the settlements are arrived at between the workmen and the employer or if there is a scheme which has been voluntarily accepted by the parties, such an agreement, settlement or scheme may be binding on the parties, notwithstanding the exclusive of such establishments from the operation of the Payment of Gratuity Act, 1972. The Court is not concerned with such a situation in this case, as it is not the case of the respondent No. 1 that the petitioner is liable to pay any amount of gratuity under any contract, settlement, or scheme. The Court is not concerned with such a situation in this case, as it is not the case of the respondent No. 1 that the petitioner is liable to pay any amount of gratuity under any contract, settlement, or scheme. It is well settled that the Court must restrict its enquiry only to the actual problem under consideration of the Court and need not deal with hypotheticated situation. As against this, Dr. Kulkarni learned Counsel for the respondent No. 1 argued with considerable force that the power of Industrial Tribunal to make the Award in respect of demand for gratuity remains unaffected by reason of the provisions contained in section 1(3)(b) of the Payment of Gratuity Act, 1972, Dr. Kulkarni, has relied upon section 4(5) of the Payment of Gratuity Act, 1972, which, in terms, provides that the Payment of Gratuity Act, 1972, did not affect the right of an employee to receive better terms of gratuity under any "Award", agreement or contract with the employer. Section 4(5) of the Payment of Gratuity Act, 1972, has been interpreted by the Apex Court in the case of (Workmen of Metro Theatre Limited, Bombay and Metro Theatre Limited Bombay)1, reported in 1981(II) L.L.J. 348 to mean that the expression "Award" in section 4(5) of the said Act takes within its sweep any Award which may be made by the Industrial Tribunal in future under the Industrial Disputes Act, 1947 and the expression "Award" used in the said section was not limited to "existing Award". In that case, the establishment of Metro Theatre Limited admittedly employed more than ten employees and the said establishment was admittedly covered under the Payment of Gratuity Act, 1972. This case is thus of no assistance to resolve the issue arising in this case. Dr. Kulkarni, has also heavily relied upon section 14 of the said Act which provides as under : "The provisions of this Act or any Rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act". The matter has been argued on both sides with consideration, devotion and thorough preparation. 14. The matter has been argued on both sides with consideration, devotion and thorough preparation. 14. I shall first refer to the judgment of the Hon'ble Supreme Court which holds that the Payment of Gratuity Act, 1972, is a self-contained and complete Code and its provisions impliedly exclude recourse to any other statute. In a different context, this question arose before the Hon'ble Supreme Court in the case of dispute between the (State of Punjab and Labour Court, Jullundur others)2, reported in 1981(I) L.L.J. 354 . In this matter, the question before the Hon'ble Supreme Court was whether an application under section 33C(2) of the Industrial Disputes Act, 1947, could lie for recovery of dues under the Payment of Gratuity Act, 1972. Hon'ble Mr. Justice R.S. Pathak, speaking for the Bench, observed in para 6 of his judgment as under:--- "It is urged that the Payment of Gratuity Act is a self-contained Code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly excluded recourse to any other statute for that purpose. The contention has force and must be accepted." In para 7 of the said judgment, the Supreme Court further observed that the Payment of Gratuity Act enacted a complete Code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. For the sake of brevity, it is considered unnecessary to state anything more, as the above referred passages clearly enunciate the relevant principles. 15. In the case of (M/s. Sanghvi Jeevraj Chewar Chand and others v. Secretary, Madras Chillies, Grains and Kirana Merchants Workers Union and another)3, reported in A.I.R. 1969 S.C. 530, the question arose as to whether the Industrial Tribunal could make an Award in respect of bonus in favour of the workers employed in the establishment to which the Payment of Bonus Act, 1965 was not applicable. It was argued before the Hon'ble Supreme Court that the exclusionary provisions of the Payment of Bonus Act (21 of 1965) did not affect the right of the Industrial Tribunal to award bonus under the provisions contained in the Industrial Disputes Act, 1947, and the reference was made in terms to Item 5 in the Third Schedule appended to the said Act. It was argued before the Court that the Industrial Tribunal had independent statutory power to award bonus under the Industrial Disputes Act, 1947 and the exclusion of the establishment from Payment of Bonus Act, 1947 was of no consequence. Shelat, J., speaking for the Bench of the Hon'ble Court, observed in para 6 of his judgment that the Industrial Tribunal Act, 1947, did not confer any substantive right to bonus. It was further observed by the Supreme Court in the said paragraph as under:--- "Item 5 in Schedule 3 to the Industrial Disputes Act deals with jurisdiction of Tribunal's set up under sections 7, 7-A, and 7-B of that Act, but does not provide for any right to bonus. Such a right is statutorily provided for the first time by the Payment of Bonus Act." The Supreme Court also held in this case that the intention of the Parliament in excluding certain establishments themselves from the applicability of the Payment of Bonus Act, 1965, was quite clear and the establishments where less than 20 persons were employed could not be subjected to award of bonus under the Industrial Disputes Act, 1947. In this case, the Industrial Tribunal had held that the Industrial Tribunal had jurisdiction to award bonus by its award in a reference and the power of the Industrial Tribunal contained in the Industrial Disputes Act, 1947, was not affected by reason of the exclusionary provisions contained in section 1(3) of the Payment of Bonus Act, 1965. The said view of the Industrial Tribunal was in terms overruled by the Hon'ble Supreme Court and the appeals of the employers were allowed. If this judgment is to be applied mutatis mutandis in the present case, it will have to be held that section 7-A of the Industrial Disputes Act, 1947 read with Item No. 5 in Schedule Third appended to the said Act merely provides machinery for adjudication under the said Act and the said machinery could not be invoked in the situation where the Payment of Gratuity Act, 1972 did not apply to the establishment concerned. Dr. Kulkarni, has, however, argued that bonus stands on a different footing than gratuity. In a way Dr. Kulkarni, is right. Dr. Kulkarni, has, however, argued that bonus stands on a different footing than gratuity. In a way Dr. Kulkarni, is right. All the pronouncements made by the Industrial Adjudicators and by the Courts prior to passing of the Payment of Gratuity Act, 1972, highlight the distinction between the concept of bonus and the concept of gratuity. The concept of bonus is connected with the concept of profit sharing between the employers and the workmen and the concept of gratuity is in the nature of retirement benefit in lieu of long continous service rendered by the workmen to his employer. These general principles, however, have limited relevance in this case and perhaps no relevance to decide the question as to whether the Payment of Gratuity Act, 1972, is a self-contained Code and whether the provisions contained in section 7A of the Industrial Disputes Act, 1947 read with Item 5 in Schedule III of the said Act, 1947, can be invoked even in the case where the concerned establishment has been deliberately excluded by the Parliament from operation and applicability of the Payment of Gratuity Act, 1972 by reason of the establishment employing less than statutory minimum. It must be stated at this stage that the above referred judgment of Shelat, J., was distinguished by the Hon'ble Supreme Court in the case of customary bonus in its judgment in the case of the (Mumbai Kamgar Sabha, Bombay v. M/s. Abdulbhai Faizullabhai and others)4, reported in A.I.R. 1976 S.C. 1455. In case of customary bonus, the bonus becomes part of condition of service. It was held that the Payment of Bonus Act, 1975 did not deal with the subject matter of customary bonus and accordingly pre-existing law continues to be in force. The ratio of the above referred judgment delivered by Shelat, J., continues to hold the field. 16. Dr. Kulkarni, has submitted that the ratio of the judgment of the Supreme Court in the case of Metro Theatre is applicable also to the establishment excluded from operation and applicability of Payment of Gratuity Act, 1972. With respect, it is not possible to accept this submission. A case is an authority as what it decides and the ratio of the judgment cannot be extended in the manner suggested by Dr. Kulkarni. The argument made by Dr. Kulkarni, is attractive at first blush, but does not stand scrutiny. With respect, it is not possible to accept this submission. A case is an authority as what it decides and the ratio of the judgment cannot be extended in the manner suggested by Dr. Kulkarni. The argument made by Dr. Kulkarni, is attractive at first blush, but does not stand scrutiny. The judgment of the Supreme Court in the case reported in A.I.R. 1969 Supreme Court 530 is directly on the point. 17. Mr. Patil, the learned Counsel for the petitioner-employer has tendered a compilation of the judgments which, according to him, have some relevance on the issue which is being considered by me. Section 14 of the Payment of Gratuity Act has been interpreted by our High Court in the case of (United India Insurance Co. Ltd. etc. v. H.K. Khatau and others)6, reported in 1984 L.I.C. 33. In this judgment, Pendse, J., speaking on behalf of the Division Bench held that the employees covered under the Payment of Gratuity Act, 1972, were entitled to payment of gratuity even though no provision was to be found in that respect in the conditions of service between the employees and the employers. It was also held in this case that United India Insurance Co. Ltd. was an establishment covered under the Act. There can be no dispute in respect of propositions, laid down in this case. This judgment, with respect, is not of much assistance for determination of the point directly arising in this petition. 18. Dr. Kulkarni, has cited several other cases in support of his submission to the effect that the expression "instrument" used in Payment of Wages Act was interpreted by the Hon'ble Supreme Court so as to include the Award. With respect to the learned Counsel, the said judgment is of no relevance. It is not necessary to multiply the authorities. I, therefore, do not propose to refer to all the judgments cited by the learned Counsel on either side. 19. Dr. Kulkarni, has also submitted that I should not permit the petitioner to raise the question of jurisdiction as it was not raised by the petitioner before the Industrial Tribunal. I have already rejected the said contention. Dr. Kulkarni, submitted that in case of several employers, the settlements are already arrived at between the parties providing inter alia for payment of gratuity. Dr. I have already rejected the said contention. Dr. Kulkarni, submitted that in case of several employers, the settlements are already arrived at between the parties providing inter alia for payment of gratuity. Dr. Kulkarni, submitted that even in the instant case, only 13 employers had filed the writ petitions and not all employers. Dr. Kulkarni, observed, during the course of the argument, that other employers who have not filed petitions may refuse to pay the amount of gratuity, if I hold that the Industrial Tribunal has no jurisdiction to award gratuity in case of establishment which are excluded from the operation and applicability of the Payment of Gratuity Act, 1972. I want to make it clear that the settlements mutually arrived at between the parties and the Awards already accepted and acted upon by the parties, are not intended to be affected by this judgment. If a question of jurisdiction going to the root of the matter is raised before the writ Court which does not require any investigation of facts, it is the duty of the writ Court to decide the question. I do not share the apprehension of Dr. Kulkarni. Whatever it may be, even assuming some such consequences are likely to follow, the remedy lies with legislature to amend the law even with retrospective effect by incorporating section in the Payment of Gratuity Act, 1972, to the effect that notwithstanding contained in the Payment of Gratuity Act 1972, the Industrial Tribunal shall have jurisdiction to make an Award of gratuity in a reference or make such other amendment in the law as the legislature deems fit and I cannot go out of my way to help either side. 20. Dr. Kulkarni, has also relied on the judgment of the Supreme Court in the case of (Ms. Prakash v. Union of India)6, reported in A.I.R. 1981 S.C. 212. With respect, this judgment is no assistance in the case Dr. Kulkarni, submitted that at any rate two views appeared to be possible on interpretation of section 1(3) and section 14 of the Payment of Gratuity Act and Item 5 in Schedule III of the Industrial Disputes Act, 1947 and I must therefore lean in favour of social justice and accept his submissions. I would have glady done so if two views were reasonably possible. In my humble view, only one view is reasonably possible. I would have glady done so if two views were reasonably possible. In my humble view, only one view is reasonably possible. I hold that the Payment of Gratuity Act, 1972 is a self-contained Act. I hold that the Industrial Tribunal had no jurisdiction to entertain the demand for gratuity and award the same in this case as petitioner's establishment was excluded from applicability of the Payment of Gratuity Act, 1972 and it was not even alleged that the petitioners were bound to pay gratuity to a workman/employee under a contract/settlement or an existing award. The impugned Award suffers from total lack of jurisdiction in so far as it provides for payment of gratuity. 21. Even on merits, I am more in agreement with the reasoning and conclusion of Rane Award and Desai Award where in similar cases the demand for gratuity was not accepted. At one stage, both the learned Counsel rightly observed during the course of their arguments that the Hair Cutting Saloons are peculiar kind of industry where most of the employers and the employees belong to weaker section of the society. 22-A. Mr. Patil, learned Counsel for the petitioner in this petition and the petitioners in the companion petitions has further submitted as under:--- The job contents of the workmen falling in categories I, II, and III in the Notification dated 11th August, 1982 was not the same as of workers classified as skilled, semi-skilled and unskilled, in the earlier Notification dated 24th March, 1971 issued under the Minimum Wages Act. No demand was made by the Union to classify the workmen into skilled, semi-skilled and unskilled categories. Para 9 of the impugned Award was thus liable to be treated as beyond the terms of reference. The impugned Award cannot be considered as having been made on a subject 'incidental' to the subjects referred to the Tribunal for adjudication under the order of reference. The Industrial Tribunal-has designed and classified the workmen into several categories which it could not have done. Mr. Patil, has cited large number of authorities to support his above submission. Basically, the Tribunal has applied the Notifications issued under Minimum Wages Act, 1948 with the necessary adaptation and has granted small increments to workmen who have completed certain period of service. It is not possible to accept the submissions of Mr. Mr. Patil, has cited large number of authorities to support his above submission. Basically, the Tribunal has applied the Notifications issued under Minimum Wages Act, 1948 with the necessary adaptation and has granted small increments to workmen who have completed certain period of service. It is not possible to accept the submissions of Mr. Patil and interfere with the Award when the Award is substantially just and reasonable because in the passing it has dealt with incidental and connected aspects for the purpose of adjudicating upon the demands. No hair splitting is permissible. By and large, the equation and fitment done in respect of the workmen falling in the categories specified in Notification dated 11th August, 1982 is correct and I cannot interfere in matters of this kind when substantiate justice is done. The alleged error, if any, is neither jurisdictional error nor error apparent on face of the record. Mr. Patil, has also objected to the increments awarded to certain workmen at the rate of Rs. 10/- and Rs. 20/- per month on completion of their three and five years of continuous service. I am not impressed by this ground of challenge. 22-B Mr. Patil, has submitted that the medical allowance and the leave could not have been granted with retrospective effect. Mr. Patil, has submitted that no provision could be made in the Award for encashment of leave. I do not agree that section 17A of the Industrial Disputes Act, 1947, read with other enabling provisions confer full powers on the Tribunal to grant the relief to the workmen from a particular date. The Tribunal has acted within its jurisdiction while fixing different dates from which the reliefs granted would become operative. 22-C Mr. Patil, the learned Counsel for the petitioner has cited the judgment of the Supreme Court in the case of (Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal, Gujarat and others)7, reported in 1968(1) L.L.J. 834 . It was held by the Court that the dispute raised related to retrenchment compensation and the Government had no jurisdiction to refer the matter regarding reinstatement to adjudication. It was held by the Court that no industrial dispute existed in respect of reinstatement and the only subject matter of dispute related to payment of retrenchment compensation. This judgment, with respect, is of no assistance for determination of any of the issues in this case. 22-D Mr. It was held by the Court that no industrial dispute existed in respect of reinstatement and the only subject matter of dispute related to payment of retrenchment compensation. This judgment, with respect, is of no assistance for determination of any of the issues in this case. 22-D Mr. Patil, has relied upon the judgment of the labour Appellate Tribunal in the case of (Workmen of Britania Blds and Iron Co. Ltd. v. Britania Blds and Iron Co. Ltd.)8, reported in 1954(1) L.L.J. 651. This case pertained to fitment of workmen in the new grade for skilled and semi-skilled workmen and increments. It was observed in para 10 of the judgment that financial capacity of the Employer was relevant for fixation of wage scales. It is undoubtedly do so. Mr. Patil, has also relied upon the judgment of the labour Appellate Tribunal in the case of (Birla Cotton Spg. Wvg. Mills Ltd. v. Their Workmen)9, reported in 1956(2) L.L.J. 188. Having regard to the facts of that case, the Labour Appellate Tribunal observed that in a reference for revision of wages, it was not open to the Tribunal to change designation of workmen. In my judgment, this is not a case of change of designation. In any event, having regard to the facts of the case, it is not possible to fault with the impugned Award. Mr. Patil, has also relied on judgment of the Supreme Court in case of (Delhi Cloth General Mills Co. Ltd. v. Their Workmen and others)10, reported in (1967)1 L.L.J. 423 . In this matter, the Supreme Court held that the Tribunal could not widen the scope of the enquiry beyond the terms of reference. In this case, the impugned Award is not beyond the terms of reference. Mr. Patil, has relied on Division Bench judgment of our High Court in the case of (Bombay Gas Co. Ltd. v. Kulkarni (R.N.))11, reported in (1965)1 L.L.J. 137. In this case, the Award did not provide for encashment of privilege leave. In the above referred case, it was held by the Division Bench of our High Court that the application under section 33(c)(2) of the Act for computation benefit of privilege leave was not maintainable as the Award did not provide for such encashment. In this case, the Award did not provide for encashment of privilege leave. In the above referred case, it was held by the Division Bench of our High Court that the application under section 33(c)(2) of the Act for computation benefit of privilege leave was not maintainable as the Award did not provide for such encashment. It is nowhere stated in this judgment that the Industrial Tribunal had no jurisdiction to make a provision for encashment of leave in the Award. Mr. Patil, has cited several other judgments also in support of this case. I have remained unconvinced about the applicability of various judgments cited by Mr. Patil. I do not think it necessary to refer to each of the judgment. No case of error apparent on face of the record or substantial injustice to the petitioner is proved. There must be some finality in these matters. At one stage, I was inclined to examine various figures regarding impact of the Award on the employer. Later on I decided not to pursue this line of inquiry, as the demand of workmen accepted by the Tribunal appears to be just and reasonable and felt that this line of enquiry will mean investigation into disputed question of fact by me which could not be conveniently done in a writ petition. 23. I must now refer to section 17A of the Industrial Disputes Act, 1947. It is for the Industrial Tribunal to state in the Award as to from what date its Award shall come into force. The Industrial Tribunal has specified the date from which the various reliefs would become operative. None of the reliefs are made operative from a date prior to service of Charter of demands. Unless I find something radically wrong in the view taken by the Industrial Tribunal, I am not expected to interfere with the said Award. Mr. Patil, has submitted that the said Award was beyond the terms of reference in as much as the workmen were designated under the Award as semi-skilled and unskilled workmen. In my judgment, the impugned Award is just and reasonable and cannot be set aside even if some of the employees suffer some hardship for the time being. Reliefs granted under the Award are moderate and minimal. 24. Accordingly, Rule is party made absolute, i.e. in respect of Award of gratuity alone. The rest of the Award is confirmed. In my judgment, the impugned Award is just and reasonable and cannot be set aside even if some of the employees suffer some hardship for the time being. Reliefs granted under the Award are moderate and minimal. 24. Accordingly, Rule is party made absolute, i.e. in respect of Award of gratuity alone. The rest of the Award is confirmed. No order as to costs. 25. I am informed that the petitioner has been making payment in pursuance of the said Award to the workmen concerned, except in respect of gratuity and except in respect of the period where the Award was made retrospective in view of the order of interim stay granted by the Court while admitting the petition. The Award could be made retrospective and section 17A(4) of the Industrial Disputes Act in terms confers powers on the Industrial Tribunal to make in retrospective i.e. operative for the period previous to the date of the Award. The Industrial Tribunal has not granted benefit for the periof prior to charter of demand, it could Award benefit to the workmen for the period anterior to the order of reference. While admitting this petition, Sujata Manohar, J., granted limited relief, i.e. stayed the operation of the Award in so far as it related to the payment of gratuity and in so far as the Award was made retrospective for the period upto 1-6-1987. I have upheld the contention of the petitioner in respect of the Award of payment of gratuity. I have rejected the contention of the petitioner in respect of other claim even where the Award was made operative in respect of the period anterior to 1st June, 1987. 26. I accordingly pass the consequential order directing the petitioner to pay differential amount in the light of the said Award except in respect of the Award for payment of gratuity within a period of eight weeks from today. 27. I cannot part with this case without expressing my gratitude to the learned Counsel on both sides who invited my attention to a large number of authorities and other relevant material which made my task easier. Rule partly made absolute. -----