JUDGMENT : Sanjay Kishan Kaul, J. 1. The disputes between the Management and Workmen of M/s. Addisons Paints & Chemicals Limited resulted in a reference to the Labour Tribunal by the Government of Tamil Nadu vide G.O. Ms. No. 2313, Labour Department, dated 2.11.1984. Unfortunately, the said dispute has dragged on for more than 20 years in one form or the other. 2. The necessary facts may be set out only to complete the sequence of events. The reference order was assailed by the Management before the High Court, resulting in a direction for the Tribunal to decide the preliminary issue first. The industrial award was passed on 29.12.1986, which inter alia opined that salesmen were not workmen under the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act), though Assistants are workmen, but rejected most of the demands. Now, it was the turn of the workmen to challenge the award by filing a writ petition. The learned single Judge vide order dated 8.4.1992 remanded the matter back to the Tribunal on certain issues, while dismissing the writ petitions which had been filed by the Management earlier challenging the reference. The matter further went upto the Division Bench in writ appeal, which by judgment dated 19.3.1994, directed the Tribunal to pass an award based on the order passed by the learned single Judge. 3. Once again, the Tribunal passed an award on 31.12.1992 and this award is stated to have been confirmed on certain aspects vide final orders passed in the writ appeals, while the issue of basic wages was once again remanded back for fresh disposal. 4. The Tribunal passed certain interim orders qua basic wages on 31.5.1994. Soon thereafter, the Special Leave Petition filed against the order of the Division Bench was dismissed on 14.7.1994. The award on basic wages issue was made on 5.10.1994. 5. The Association of Workmen complained to the Labour Commissioner on account of non-implementation of the award 31.12.1992. Certain steps were taken in pursuance to this complaint, which resulted in another line of proceedings. Suffice to say that the view adopted throughout was that the award dated 31.12.1992 had become final and the Management could not take refuge under the issue of basic wages for non-implementation of that award. 6. Certain steps were taken in pursuance to this complaint, which resulted in another line of proceedings. Suffice to say that the view adopted throughout was that the award dated 31.12.1992 had become final and the Management could not take refuge under the issue of basic wages for non-implementation of that award. 6. The issue of basic wages once again resulted in the matter being remanded back to the Tribunal vide order dated 12.10.2001 and the award on the issue came to be passed on 8.3.2002. The issue of prosecuting the Directors of the Company for non-implementation of the award also continued to be pursued and it is the case of the workmen that the Management, fearing punishment for non-compliance, voluntarily agreed to release the money in deposit with the Tribunal to the workmen, as recorded in the order of the Division Bench dated 21.4.2005. The Management further agreed to make payments in terms of the award without prejudice to their right in appeal as per the interim orders dated 15.12.2005. 7. The issue of prosecution of the Directors for continuing breach of the award resulted in adverse orders against the Management and it is in March, 2011, in the present writ appeals, that mediation was suggested in, but to no avail. 8. It is in the aforesaid background that the present appeals have been listed before this Court, raising a limited challenge both by the Management and on behalf of the Workmen in respect of the impugned order of the learned single Judge dated 23.7.2004 in respect of the industrial award, whereby the award was upheld. 9. Learned counsel for the Management confined his submissions to two aspects - "(i) The 17 workmen who had resigned from the Association were not entitled to the benefits of the award. (ii) The Sales Representatives were not entitled to the benefit of the award." 10. Learned counsel submitted that the issue is confined to whether the award is applicable for 89 workmen or 56 workmen. This is in the context of exclusion sought for 17 workmen who had resigned from the Association and 12 workmen who were Sales Representatives. Learned counsel submitted that in respect of another 4 workmen having different designations, he did not seek to press the issue and there is really not much of a case. This is in the context of exclusion sought for 17 workmen who had resigned from the Association and 12 workmen who were Sales Representatives. Learned counsel submitted that in respect of another 4 workmen having different designations, he did not seek to press the issue and there is really not much of a case. He thus submitted that apart from the 56 workmen where the benefit of the award will be available, even these 4 workmen who were Sales Officers/Managers would be entitled to the benefit of the award, leaving the contest to 29 workmen in the two categories of resigned/Sales Representatives. 11. The submission of the learned counsel is based on the earlier judgment of the Division Bench of the Court inter se the parties, reported in 1994 Lab. I.C. 1779. In this behalf, he referred to the findings in paragraph 21 of the judgment to the effect that the award of the Tribunal dated 31.12.1992 would not apply to those workmen who had resigned from the Association. Similarly, he has referred to paragraph 46 of that judgment containing observations that the commission payable on promotion of sales or business or both in the definition of wages under Section 2(rr) of the said Act will not have the effect of bringing the sales representatives within the definition of "workman" as contained in Section 2(s) of the said Act. 12. It is not as if the aforesaid aspects had not received the attention of the Tribunal, which findings were confirmed by the High Court. A reading of the award of the Tribunal shows that in respect of both the issues, the observations in paragraphs 20 and 21 of the award are as under:-- "20. But one thing to be seen is that the above observation that the Sales representative is not a workman given in para. 37 of the judgment of the Division Bench in W.A. Nos. 787, 788 and 802 of 1992 and other connection writ petitions was with reference to point No. 1 framed thereunder which was in respect of the challenge made for the termination of E.D. Arumugam. In fact, it was held under the Award dated 29.12.1986 of the Tribunal that the contention raised by the management that since the sales representative are not workmen, they should be excluded from the benefits was rejected by the Tribunal. In fact, it was held under the Award dated 29.12.1986 of the Tribunal that the contention raised by the management that since the sales representative are not workmen, they should be excluded from the benefits was rejected by the Tribunal. There was a reasoning given that as per the community of interest, they can also be considered as workmen. Further, one more point is to be considered that a sales representative is liable for being transferred as clerk or other similar designated post coming under the same category of sales representative. That is to say, there are so many posts including sales representative which are considered to be equal. If a workman is occupying one such post and considered as workmen, he cannot be deprived of their benefits simply because he was engaged as a sales representative. Again, when the award of the Tribunal passed on 29.12.1986 held that out of community of interest, sales representative also can be termed as workmen and such award was not also set aside in any of the writ petitions, it is to be found that it holds good even now and thus, for the above reasoning, there cannot be deletion of 11 individuals. 21. The next contention of the management is that apart from the above mentioned 12, there were 18 workmen resigned from the Union stating that their interest need not be represented by the union, and among them, three were stated to have filed affidavit. When the members of the union were given some benefits, interest of justice required that such benefits should not be denied to an otherwise qualified person, simply because some happened to discontinue from the membership of the union. It is true that the union can and have to represent the entire mass of workmen to achieve their causes; but the converse to say that in order to get the benefit, one should necessarily be a member may not be absolutely right. This is so because as mentioned earlier, any benefits decided to reach the members of the union should not be denied for an otherwise qualified person for the sake of the discontinuance of the later from the membership of the union. Thus, 18 persons cannot be deleted. Therefore, it is found that 89 persons are entitled for the benefits. This is so because as mentioned earlier, any benefits decided to reach the members of the union should not be denied for an otherwise qualified person for the sake of the discontinuance of the later from the membership of the union. Thus, 18 persons cannot be deleted. Therefore, it is found that 89 persons are entitled for the benefits. The names of those 23 persons are found in paragraph 21 of the judgment of the Division Bench in W.A. Nos. 787, 788, 802/92 and W.P. Nos. 12476 and 13814/93 reported in 1994 (1) LLN p. 716 and in Ex. C-7. The names of 89 persons entitled to benefits are are also mentioned in 1st page of Ex. C-9, the document filed by workmen." 13. The reasoning which permeates is that as far as Sales Representatives are concerned, it is not as if they were recruited for that post alone and would not be posted elsewhere. The Sales Representatives were liable for being transferred as Clerks or other similarly designated posts coming under the same category of Sales Representatives. Thus, there were a number of posts, including Sales Representatives, which were to be considered as equal. 14. If the aforesaid was the position, then it was a matter of chance whether a particular person was posted as a Sales Representative or not on a particular date and that itself, in our view, could not have deprived the Sales Representatives of the benefits under the award of the Tribunal. The aforesaid aspect was not pointed out in the earlier proceedings which had resulted in the judgment in 1994 Lab. I.C. 1779, but in the fresh award passed by the Tribunal under challenge, it has been examined. On our query, it is conceded by the learned counsel that factually this is the position, though he pleads that this issue ought not to have been permitted to be raised by the Tribunal in its reasoning at this stage. We do not agree. 15. Similarly, on the issue of the workmen who have resigned from the Association (the Union in question), it is not as if they have referred their own claims, but on the other hand, the Union continued to prosecute their claim and they also rely on the same. Further, they were part of the Union on the relevant date, i.e. the date of reference and their membership discontinued subsequently in the Union. Further, they were part of the Union on the relevant date, i.e. the date of reference and their membership discontinued subsequently in the Union. Thus, we are in agreement with the view that it cannot be canvassed that these workmen should be denied the benefit if they are not members of the Union. If this proposition were to be accepted, it would mean that though eligible, certain workmen would be denied the benefit merely because they were not part of the Union. 16. If one turns to the reasoning in the impugned order on the aforesaid aspects, it is observed as under:- "11. The main contention raised in the writ petition filed on behalf of the management is to the effect that the Tribunal has committed error of law in making the award applicable to the sales representatives as such sales representatives were not workmen as per the findings of the Division Bench in W.A. Nos. 787 and 802 of 1992 and other connected writ petitions. It is the contention of the learned counsel for the management that since the High Court had come to a categorical conclusion that the sales representatives were not workmen, the Tribunal should not have gone beyond such finding and come to a different conclusion. 12. Even though such a contention may appear prima facie attractive, I am not inclined to accept such a contention on deeper scrutiny. There is no doubt that in the context of the reference made by the Government in connection with non-engagement of E.D. Arumugham it was observed by the High Court that the sales representatives did not come within the category of workmen. However, such observation was in the context of question as to whether non-engagement of E.D. Arumugam could be the subject matter of industrial dispute. Such observation must be understood in the context in which it has been made. It has to be remembered that the conclusion of the Tribunal is by applying the doctrine of "community of interest". The question of fixation of salary or payment of Dearness Allowance and House Rent Allowance, etc., could also be considered for others had not been challenged by the management at that stage nor such conclusion had been anyway reversed by the High Court. The question of fixation of salary or payment of Dearness Allowance and House Rent Allowance, etc., could also be considered for others had not been challenged by the management at that stage nor such conclusion had been anyway reversed by the High Court. The entire discussion relating to reference of E.D. Arumugam was in the context of his non-engagement and obviously had no bearing on the question as to whether the basic salary of other employees, who though strictly speaking were not workmen, had to be considered for the purpose of fixing salary and entitlement to Dearness Allowance, House Rent Allowance, etc., because of the community of interest. The reasoning of the Tribunal on this aspect cannot be stated to be vitiated by any error of law apparent on the face of record. The question of validity of non-engagement of E.D. Arumugam is not one of the matters to be decided in the industrial dispute and is not a matter of dispute in the present writ petitions. 13. The other contention raised by the management to the effect that the Tribunal had extended the benefit of the award to the persons who had already accepted the controversial benefit and who were not inclined to continue the industrial dispute appears to be very vague to warrant any serious consideration. The writ petition filed by the management therefore is dismissed. However, it is made clear that the validity or invalidity of non-engagement of E.D. Arumugam is not a matter which has been decided in the present case." 17. We may add that the learned counsel for the Association/Workmen has also drawn our attention to the earlier order passed in Writ Petition Nos. 820 and 12389 of 1995 dated 12.10.2001, which dealt with the award dated 5.10.1994. The pleas advanced by the learned counsel for the Management qua persons who had resigned from service were also noticed therein and the Court had opined even at that stage that the benefit would be extended to all. 18. We are in complete agreement with the reasoning of the learned single Judge for the reasons we have set out hereinbefore and thus, the writ appeal filed by the Management, bearing W.A. No. 535 of 2005, must fail. 19. 18. We are in complete agreement with the reasoning of the learned single Judge for the reasons we have set out hereinbefore and thus, the writ appeal filed by the Management, bearing W.A. No. 535 of 2005, must fail. 19. Now turning to the second writ appeal in W.A. No. 902 of 2005 filed on behalf of the Association/Workmen, the issue raised is of alleged error qua the basic wages to Junior Management Assistants, claiming it to be against the direction passed by the Division Bench in the earlier proceedings in 1994 Lab. I.C. 1779. 20. In paragraph 23 of the award, the contention of the counsel for the workmen is noticed that there was evidence to hold that Dearness Allowance was also merged and that is why a consolidated pay was being given. The findings recorded by the Tribunal in this behalf are contained in paragraphs 24 and 25 as under:-- "24. Further, the term 'consolidation' itself shows an outright package. We cannot impute that it contained the particular D.A. There is no evidence on record to show on what process the consolidation was by then arrived at unless there is specific evidence to show the contents of the consolidation. We cannot unilaterally bifurcate the package and we cannot also consistently say that it really contained the then D.A. Therefore, the argument of the learned counsel for the workmen that we can arrive at the basic pay of JMAs in 1974 by subtracting the then D.A. from the consolidated pay is not correct. If only a basic pay during the tenure of JMA was there, the benefits of Exs. C-1, C-2 and C-4 should have gone to the then JMAs even at that time. When the JMAs had agreed for a consolidated pay and enjoyed it, they would not have been entitled to anything more inspite of the fact that there were several settlements like Exs. C-1, C-2 and C-4 agreed and signed prior to 2.11.1984, the date of abolition of the JMA post. But their pay has to be protected subject to abolition of JMA cadre that is, the pay that they would have got, had they not been admitted into JMA. 25. So without adopting the above course suggested by the learned counsel for the workmen, we can see what these JMAs would have got, had they continued in their original position. But their pay has to be protected subject to abolition of JMA cadre that is, the pay that they would have got, had they not been admitted into JMA. 25. So without adopting the above course suggested by the learned counsel for the workmen, we can see what these JMAs would have got, had they continued in their original position. That will be only according to the other persons getting varied scales as found in page 66 of Ex. C-8. That clearly picturises the grade of pay subsequent to Ex. C-4 agreement in 1982 and prior to 1986 agreement. As mentioned earlier, this union is also bound by Exs. C-1, C-2 and C-4, the settlements earlier to 1986. By supplying the benefits of the settlements also, they can be fixed only in the revised grade of pay of other equivalents as shown in page 66 of Ex. C-8. Thus, the pay prior to and subsequent to 1986, as found in page 66 of Ex. C-8 will be applicable to these workmen. In fact, page 66 of Ex. C-8 contains various categories of workmen and so the reverted JMAs can as well be fixed therefore category wise. This gets strengthened by the fact that parity also will be worked out only in the decision; but if the arguments of workmen is accepted, then there will be disparity in pay among persons of equal category. That is to say, persons who were JMAs for certain period will be getting more pay than their equals simply because they were allowed to act as JMAs. This will disturb the parity. Therefore also, the pay fixed at page 66 of Ex. C-8 will hold good. The classification is vividly made in Ex. C-8 as seven classifications. The workmen pointed out that this can be made into three. Seven can be at any time classified into three because the bigger includes the smaller. It is thus better to be more specific regarding seven categories so that particulars can be put in detail. The same is found in page 66 of Ex. C-8. Subsequently, we can group them into three classifications. Thus, Question No. 5 framed in W.P. Nos. 820/95 and 12389/95 vide para. 6 of this judgment is answered accordingly." 21. It is thus better to be more specific regarding seven categories so that particulars can be put in detail. The same is found in page 66 of Ex. C-8. Subsequently, we can group them into three classifications. Thus, Question No. 5 framed in W.P. Nos. 820/95 and 12389/95 vide para. 6 of this judgment is answered accordingly." 21. Before the learned single Judge, it was sought to be canvassed, while challenging the fixation of salary and other perquisites, that the Tribunal had wrongly placed reliance on Exs. C-8 and C-8-1 and had fixed the salary without keeping in view the observations made by the Division Bench, as also by the learned single Judge while remanding the matter back for fresh consideration. The document filed on behalf of the employees was sought to be relied upon as the appropriate document. This plea was rejected by the learned single Judge on the ground that while deciding a matter of this nature under Article 226 of the Constitution of India, the Court would not act as an appellate authority to interfere merely because the Tribunal had accepted one set of evidence or document or had not accepted the rival contentions. There was no error of law or complete misdirection, calling for interference. 22. We are one stage ahead, scrutinizing this aspect in appeal, which is really a third scrutiny and thus, while agreeing with the course of action adopted by the learned single Judge and the rationality of the view adopted by the Tribunal for cogent reasons based on evidence, we can hardly be called upon to interfere. 23. The appeal filed by the Association/Workmen, viz. W.A. No. 902 of 2005 must thus also fail. 24. The result of the aforesaid is that the challenge laid by both the sides to the impugned award of the Tribunal passed in I.D. No. 83 of 1984 dated 8.3.2002 and the order of the learned single Judge passed in W.P. Nos. 19459 and 29868 of 2002 dated 23.7.2004 is repelled and the writ appeals are dismissed, leaving the parties to bear their own costs. Consequently, the connected miscellaneous petitions are closed.