Laxnii Devi

Sugar Mills v.

N and K ishore

Singh

BhagwatiJ.

October 4 •

SUPREME COURT REPORTS [1956]

lant to the respondent formed the basis of the enquiry which was held by the General Manager and the appellant could not be allowed to justify its action on any other grounds than those contained in the chargesheet. The respondent not having been charged with the acts of insubordination which would have really justified the appellant in dismissing him from its employ, the appellant could not take advantage of the same even though these acts could be brought home to him.

We have, therefore, com!'l to the conclusion that the order made by the Labour Appellate Tribunal was correct even though we have done so on grounds other than those whi.ih commended themselves to it.

We accordingly dismiss this appeal but having regard to the conduct of the respondent which we have characterised above as reprehensible we feel that the ends of justice will be met if we ordered that each party do bear and pay its own costs of this appeal.

Appeal dismissed.

DEOKI NANDAN v.

MURLIDHAR .

[JAGANNADHADAS, VENKATARAMA AYYAR, B. P. SINHA and S. K. DAS JJ.]

Hindu Law-Religious end<>Wment-Temple-Public or private -Question of mixed fact and law-Gift to idol-Whether worshippers are the beneficiaries-: Dedication to public-Construction of will -Ceremonies relating to installation of idol-fher of temple.

The issue whether a. religious endowment is a. public or e. pri va.te one is a. mixed question of law and fact the decision of whi°6b must depend on the application of legal concepts of • public and • private endowment to the facts found and is open to consideration by the Supreme Court.

Lakshmidhar Misra v. Rangalal ([1949] L.R. 76 I.A. 271), referred to.

The di•tinction between a private and a public endowment is that whereas in the former the beneficiaries a.re specific individua.ls, in the latter they are the general public or a class thereof,

Though under Hindu law an idol is a juristic person capable of holding property and the properties endowed for the temple vest in it, it can have no beneficial interest in the endowment, and the true beneficiaries are the worshippers, as the real purpose of a gift of properties to an idol is not to confer a.ny benefit on God, but the acquisition of spiritual benefit by providing opportunities and facilities for those who desire to worship.

Prosunno Kitmari Debya v. Golab Ohand Baboo ([1875] L.R. 2 I.A. 145), Maharaja J agadindra Nath Roy Btthadur v. Rani Hemanta Kumari Debi ([1904] L.R. 31 I.A. 203), Pramatha Nath Mullik v.

Pradhyumna Kumar Mitllik ([1924] L.R. 52 I.A. 245) and Bhupati

Nath Smrititirtha v. Ram Lal Maitra ([1910] I.L.R. 37 Cal. 128), referred to.

A pious Hindu who was childless constructed a temple and was in management of it till his death. He executed a will whereby he bequeathed all his lands to the temple and made provision for its proper management. The question was whether the provisions of the will disclosed an intention on the part of the testator to dedicate the temple to the public or merely to the members of the family.

Held, that the recital in the will that the testator had no sons coupled with provisions for the management of the trust by strangers was an indication that the dedication was to the public.

Nabi Shirazi v. Province of Bengal (I.L.R. [1942] 1 Cal. 211), referred to.

Heldfitrther, that the performance of ceremonies at the con secration of the temple (Prathista), the user of the temple and other evidence in the case showed that the dedication was for worship by the general public.

CIVIL APPELLATE JURISDICTION: Civil AppealNo. 250ofl953.

Appeal from the judgment and decree dated July 14, 1948 of the Obief Court of Audh, Lucknow in Second Appeal No. 365 of 1945 arising out of the de- ..,_ cree dated May 30, 1945 of the Court of District Judge, Sitapur in Appeal No. 4 of 1945 against the decree dated November 25, 1944 of the Court of Additional Civil Judge, Sitapur in Regular Civil Suit No. 14

of 1944.

A. D. Mathur, for the appellant.

Jagdisk Okandra, for respondent No. 1.

Deoki N and an

Murlidhar

Deokl N andan

Murlidhar

1956. October 4.

The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-The point for decision in this appeal is whether a Thakurdwara of Sri Radhakrishnaji in the village of Bhadesia in the District of Sitapur is a private temple or a public one in which all the Hindus are entitled to worship.

One Sheo Ghulam, a pious Hindu and a resident of the said village, had the Thakurdwara constructed d1,1ring the years 1914-1916, .and the idol of Shri Radhakrishnaji ceremoniously installed therein. He was himself in management of the temple and its affairs till 1928 when he died without any issue. On March 6, 1919, he had executed a will whereby he bequeathed all his lands to the Thakur.

The provisions of the will, in so far as they are material, will presently be referred to. The testator had two wives one of whom Ram Kuar, had predeceased him and the surviving widow, Raj Kuar, succeeded him as Mutawalli in terms of the will and was in management till her death in 1933. Then the first defendant, who is the nephew of Sheo Ghulam, got into possession of the properties as manager of the endowment in accordance with the provisions of the will. The appellant is a distant agnate of Sheo Ghulam, and on the allegation that the first defendant had been mismanaging the temple and denying the rights of the public therein, he moved the District Court of Sitapur for relief under the Religious and Charitable Endowments Act XIV of 1920, but the court declined to interfere on the ground that the endowment was private. An application to the Advocate-General for sanction to institute a suit under section 92 of the Code of Civil Procedure was also refused for the same reason.

The appellant then filed the suit, out of which the present appeal arises, for a declaration that the Thakurdwara is a public temple in which all the Hindus have a right to worship. The first defendant contested the suit, and claimed that "the Thakurdwara and the idols were private'', and that "the general public had no right to make any interference".

The Additional Civil Judge, Sitapur, who tried the suit was of the opinion that the Thakurdwara had been built by Sheo Ghulam "for worship by his family",

and that it was a private temple.

He accordingly dismissed the suit.

This judgment was affirmed on appeal by the District Judge, Sitapur, whose decision again was affirmed by the Chief Court of Oudh in second appeal. The learned Judges, however, granted a certificate under s. 109(c) of the Code of Civil Procedure that the question involved was one of great importance, and that is how the appeal comes before us.

The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public endowment or a private one is one of mixed law and fact. In Lakshmidhar Misra v.

Rangalal(1), in which the question was whether certain lands had been dedicated as cremation ground, it was observed by the Privy Council that it was "essentially a mixed question of law and fact", and that while the findings of fact of the lower appellate court must he accepted as binding, its "actual conclusion that there has been a dedication or lost grant is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself". In the present case, it was admitted that there was a formal dedication; and the controversy is only as to the scope of the dedication, and that is also a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the faqts found, and that is open to consideration in this appeal.

It will be oonvenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or privatP, anC then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that.whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof, While in the former the beneficiaries are persons who are

(1) [1949] L.R. 76 I.A. 271.

Dcoki N and an

Murlidhar

Venkatarama AyyarJ

Deoki N andan v.

Murlidliar

Venkatarama

Ayyar J.

ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, Fifteenth Edition, pp. 15-16:

"By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considllred in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained .... ".

Vide also the observations of Mitter J. in Nabi Shirazi

v. Province of Bengal('). Applying this principle, a religious endowme.nt must be. held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof.

Then the question is, who are the beneficiaries when a temple is built, idol installed thereip and properties endowed therefor? Under the Hindu law, an idol is a juristic person capable of holding property and . the properties endowed for the institution vest in it. But does it follow from this that it is to be regarded as the beneficial owner of the endowment?

Though. such a notion had a vogue at one time, and there is an echo of it in these proceedings (vide para 15 of the. plaint), it is now established beyond all controversy that this isnot the true position. It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed properties.

Vide Prosunno Kumari Debya v. Golab Chand Baboo("); Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi(') and Pramatha Nath Mullik

v. Pradhyumna Kumar Mullik('). It cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. This was clearly

(1) T.L.R. (1942) l Cal. 211, 227, 228.

(2) (1876) L.R. 2 I.A. U5, 162.

(31 [1904) L.R. 31 I.A, 203.

(4) (1924) L.R. 52 I.A. ~46.

laid down in the Sanskrit Texts. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sahara Swami has the following:

e:"l'!frir\ ~irra, q:q1"11'44:_t m1ra f.ffirfi- ....

Jlira, a~~ ~I ; r 'q' mil ~~ Cl'T mfllSlrir ~~~ ~<rel I a~ rnmra I e:crtfbm:r gm ~' e:crar- ~

~~I "Words such as 'village of the Gods', 'land of the Gbds' are used in a figurative sense. That is property which can be said to belong to a person, which he can m'ake use of as he desires. God however does not make use of the village or lands, according to its desires. Therefore nobody .makes a gift (to Gods).

Whatever property is abandoned for Gods, brings prosperity to those who serve Gods".

Likewise, Medhathithi in commenting on the expression "Devaswam" in Manu, Chapter XI, Verse 26 writes:

ro1; f, 1; ff~ fffl1; ff~ t1*<t°-, a~€1l•n(, ~~

~~; q-;:~, ~'lT ~I ; r fu e;<rel 'i:Tof

f~~~ I ; r 'q' qRqfi!r.f1>q~R=lf q~ I

"Property of the Gods, Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is impossible of application to Gods.

For the Gods do not make use of the property according to their desire nor are they seen to act for protecting the same".

Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha), and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing oppor tunities and facilities for those who desire to worship.

Deoki N andan

Murlidhar

Venkatarama AyyarJ.

Deoki N andan v. 1rlurlidhar

V.:ullatara11ta

Ayyar J.

In Bhupati Nath Smrititirtha v. Ram Lal Maitra(1), it was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules. applicable to a transfer to a 'sentient being', and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the pnrpose of their being appropriated for the purposes which he intends. Thus, it was observed by Sir Lawrence Jenkins 0. J. at p. 138 that "the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected" and that "the dedication to a deity" may be "a compendious expression of the pious purposes for which the dedication is designed". Vide also the observations of Sir Ashutosh Mookerjee at p. 155.

In Hindu Religious Endownlents Board v. Veeraraghavachariar('), Varadachariar J. dealing with this question, referred to the decision in Bhupati Nath Smrititirtha v. Ram Lal Maitra (supra)· and observed:

"As explained in that case, the purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner.

This is the sense in which a temple and its endowments are regarded as a public trust".

When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose 'of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty.

The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.

In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family,

(!) [1910) I.L.R. 37 C•l. 128.

(2) A.LR. 1037 :\fad. 750.

...

and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.

In the light of these principles, we must examine the facts of this case. The materials bearing on the question whether the Thakurdwara is a public temple or a private one may be considered under four heads:

(1) the will of Sheo Ghulam, Exhibit A-1, (2) user of the temple by the public, (3) ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankalpa and

Uthsarga, and (4) other facts relating to the character of the temple.

(1) The will, Exhibit A-1, is the most important evidence on record as to the intention of the testator and the scope of the dedication. Its pro, visions, so far as they are material, may now be noticed.

The will begins with the recital that the testator has two wives and no male issue, that he has constructed a Thakurdwara and installed th~ idol of Sri Radhakrishnaji therein, and that he is making a disposition of the properties with a view to avoid disputes. Clause 1 of Exhibit A-1 provides that after the death of the testa- tor "in the absence of male issue, the entire immovable property given below existing at present or which may come into being hereafter shall stand endowed in the name of Sri Radhakrishnaji, and mutation of names shall be effected in favour of Sri Radhakrishnaji in the Government papers and my wives l\Ist. Raj Kuer and Mst. Ram Kuer shall be the Mutawallis of the waqf".

Half the income from the properties is to be taken by the two wives for their maintenance during their lifetime, and the remaining half was to "continue to be spent for the expenses of the Thakurdwara". It is implicit in this provision that after the lifetime of the wives, the whole of the income is to be utilised for the purpose of the Thakurdwara. Clause 4 provides that if a son is born to the testator, then the properties are to be divided between the son and the Thakurdwara in a specified

Deoki N andan

Murlidltar

Venkataranra

Ayyar j.

Dcoki N andan v.

Murlidhar

Venkatarama Ayyar J,

proportion; but as no son was born, this clause never came into operation. Clause 5 provides that the Mutawallis are to have no power to sell or mortgage the property, that they are to maintain accounts, that the surplus money after meeting the expenses should be deposited in a safe bank and when funds permit, property should be purchased in the name of Sri Radhakrishnaji. Clause 2 appoints a committee 0f four persons to look after the management of the temple and its properties, and of these, two are not relations of the testator and belong to a different caste. It is further.provided in that clause that after the death of the two wives the committee "may appoint my nephew Murlidhar as Mutawalli by their unanimous opinion". This Murlidhar is a. divided nephew of the testator and he is the first defendant in this action. Clause 3 provides for filling up of vacancies in the committe!l. Then finally there is

cl. 6, which r'uns as follows:

"If any person alleging himself to be my near or remote h!lir files a claim in respect of whole or part of the waqf property his suit shall be improper on the face of this deed".

The question is whether the provisions of the will disclose an intention on the part of the testator that the Thakurdwara should be a private endowment, or that it should be pub\ic. The learned Judges of the Chief Court in affirming the decisions of the courts below that the temple was built for the benefit of the members of the family, observed that there was nothing in the will pointing "to a conclusion that the trust was a public one", and that its provisions were not "inconsistent with the property being a private endowment". We are unable to endorse this.opinion.

We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of hi~ family.

The testator begins by stating that he had no male issue. In Nabi Shirazi v. Province of Bengal (supra), the question was whether a wakf created by a deed of the year 1806 was a public or a private

• I

endowment. Referring to a recital in the deed that the settlor had no children, Khundkar J. observed at p. 217:

"The deed recites that the founder has neither children nor grandchildren, a circumstance which in itself suggests that the imambara was not to remain a private or family institution".

Vide also the observations of Mitter J. at p. 228. The reasoning on which the above view is based is, obviously, that the word 'family' in its popular sense means children, and when the settlor recites that he has no children, that is an indication that the dedication is not for the benefit of the family but for the public.

Then we have clause 2, under which the testator constitutes a committee of management consisting of four persons, two of whom were wholly unrelated to him. Clause 3 confers on the committee power to fill up vacancies; but there is no restriction there.in on the persons who could be appointed under that clause, and conceivably, even all the four member~ might be strangers to the family. It is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body consisting of strangers. Lastly, there is clause 6, which shows that the relationship between Sheo Ghulam and his kinsmen was not particularly cordial, and it is noteworthy that under clause 2, even the appointment of the first defendant as manager of the epdowment is left to the option of the committee. It is inconceivable that with such scant solicitude for his relations, Sheo Ghulam would have endowed a temple for their benefit. And if he did not intend them to be beneficiaries under the endowment, who are the members of the family who could take the benefit thereunder after the lifetime of his two wives? If we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects. But it is clear from the p.rovisions of the wiU that the testator contemplated the continuance

Deoki N andau

Murli4haf"

Venkatarama

Ayyar).

Deoki l'>[ and an

Murlidhar

Vi:nkatarafna

AyyarJ.

of the endowment beyond the lifetime of his wives.

He directed that the properties should be endowed in the name of the deity, and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the lifetime of his wives.

And to effectuate this intention, it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public, and not merely of his family. In deciding that the endowment was a private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as correct. 2.

In the absence of a deed of endowment constituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed t.hat the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Slieo Ghulam at the instance of the villagers, as there was no tern pie in the village.

The trial Judge did not discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P. W. 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace.

P; W. 2 was a pujari in the temple, and he deposed that while Sheo Ghulam's wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right.

It is nothing unusual even in well-known pblic temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is expression of the regard which.the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be construed as a denial of their rights. The learned Judges of the Chief Court also relied on the decision

of the Privy Council in Babu Bhagwan Din v. Gir Har

Saroon(1) as an authority for the position that "the mere fact that the public is allowed to visit a temple or thakurdwara cannot necessarily indicate that the trust is public as opposed to private". In that case, certain properties were granted not in favour of an idol or temple but in favour of one Daryao Gir, who was maintaining a temple and to his heirs in perpetuity. The contention of the public was that subsequent to the grant, the family of Daryao Gir must be held to have dedicated the temple to the public for purpose of worship, and the circumstance that members of the public were allowed to worship at the temple and make offerings was relied on in proof of such dedication.

In repelling this contention, the Privy Council observed that as the grant was initially to an individual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out, and it was not made out merely by showing that the public was allowed to worship at the temple "since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away".

But, in the present ca.se, the endowment was in favour of the idol itself, and the point for decision is whether it was a private or public endowment.

And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public. In Mundancheri Koman v. Achuthan(2), which was referred to and followed in Babu Bhagwan Din v Gir Har Saroon(1), the distinction between user in respect of an institution which is initially proved to have been private and one which is not, is thus expressed:

"Had thne been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so \Vere privat_e trusts, their Lordships would have been slow to hold that the admission of the public in later times possibly owing to altered conditions, would affect the private character of the trusts.

As it is, they are of

(1) (1939] L.R. 67 I.A. 1.

(2J [1934] L.R. 61 I.A. 405.

Deoki N andati

Mr<rlidhar

Venllataranta

Ayyar}.

Deoki N andan v.

Murlidhar

V'enkatarama

Ayyar J..

opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user which is all one way that the temples and their endowment were public religious trusts".

We are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment.

3. It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be val.uable evidence of endowment, but absence of such proof would not be conclusive against it. In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishnaji were made with great solemnity and in accordance with the Sastras. P. W. IO, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending with Sthapana or Prathista were duly performed and the idols of Sri Radhakrishnaji, Sri Shivji and Sri Hanumarlji were installed as ordained in the Prathista Mayukha.

Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that tbe dedication was to the public.

In the court below, the appellant raised the contention that the performance of Uthsarga ceremony at the time of the consecration was conclusive to show 'that the dedication was to the public, and that as P. W. IO stated that Prasadothsarga was performed, the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under section I09(c) of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion t.hat the contention of the appellant proceeds on a misapprehension. The ceremonies relating to dedication are Sankalpa, Uthsarga and Prathista.

Sankalpa means determination, and is really a formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which he dedicates it.

Vide The Hindu Law of Religious and Charitable Trust by B. K. Mukherjea, 1952 Edition, p. 36.

The formulae to be adopted in Sankalpa and Uthsarga are set out in Kane's History of Dharmasastras, Volume II, p. 892. It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhutebyah). It would therefore follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public. But the difficulty in the way of the appellant is that the formula which according to P. W. 10 was recited on the occasion of the foundation was not Uthsarga but Prasadothsarga, which is something totally different. 'Prasada' is the 'mandira', wherein the deity is placed before the final installation or Prathista takes place, and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada. Prasadothsarga is the formula to be used on that occasion, and the text relating to it as given in the Mayukha runs as follows:

"(ra: ...... SfRll';{t(ij wnq:_ I asr ~~' {if

f~~'!!~firfira ....... ITTJ~"<1~m<firir:, ~~-

p:f, ~~lt, "ftrtt("('film"tfa-, ~Cf\il'~Hf.r ~Ci'Cff, if~Cff, Sfl!R'JIT-{ f\il'1.tfu I" It will be seen that this is merely the Sankalpa without the Uthsarga, and there are no words therein showing that the dedication is to the public.

Indeed, according to the texts, Uthsarga is to be performed only for charitable endowments, like construction of t.anks, rearing of gardens and the like, and not for religious foundations. It is observed by l\ir. l\1andlik in the Vyavahara Mayukha, Part II, Appendix II, p. 339

Deoki N andan v.

M"rlidhar

Vcttkatara 'na

Ayyar j.

Deoi N andan

•• Murlidhar

V.:nkatarania

Ayyar J.

that "there is no utsarga of a temple except in the case of repair of old temples". In the History of Dharmasaetras, Volume II, Part II, p. 893, it is pointed out by Mr. Kane that in the case of temples the proper word to use is Prathista and not Uthsarga. Therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples.

The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga. But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples, and that there was Prathista of Sri Radhakrishnaji as spoken to by P. W. 10, is not in dispute.

In our opinion, this establishes that the dedication was to the public. ( 4) We may now refer to certain facts admitted or established in the evidence, which indicate.that the endowment is to the public. Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan(1), it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts.

That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the Thakurdwara was built at the instance of the villagers for providing a place of worship for them. This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public.

(1) [1875] 15 llcn. L.R. 1G7, 18G.

It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated "for the worship of the general public'', the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private.

He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for th~ plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaji in Bhadesia is a public temple.

In the result, the appeal is allowed, the decrees of the courts below are set aside, and a declaration granted in terms of para 17(a) of the plaint. The costs of the appellant in all the courts will come out of the trust properties. The first defendant will himself bear his own costs throughout.

Appeal allowed.

Deoki Nandan v. lf!urlidhar

Venkatara1na

Ayyarj.

DEOKI NANDAN

MURLIDHAR

JAGANNADHADAS

B. P. SINHA

S. K. DAS JJ.

Supreme Court

L.R. 76 I.A. 271

L.R. 2 I.A. 145

L.R. 31 I.A. 203

L.R. 52 I.A. 245

Bhupati

A. D. Mathur

Jagdisk Okandra

Deoki N

Radhakrishnaji

Sitapur

Sheo Ghulam

March 6, 1919

Thakur

Ram Kuar

Raj Kuar

Mutawalli

District Court of Sitapur

Endowments Act XIV of 1920

section 92

the Code of Civil Procedure

Additional Civil Judge, Sitapur

District Judge, Sitapur

Chief Court of Oudh

s. 109(c)

the Code of Civil Procedure

Bhadesia

L.R. 76 I.A. 271

Ayyar

Lewin

Mitter

Sahara Swami

Medhathithi

Deoki N andan

Murlidhar

Venkatarama AyyarJ.

Lawrence Jenkins

Ashutosh Mookerjee

Varadachariar

Sankalpa

Uthsarga

Clause 1

Raj Kuer

Ram Kuer

Clause 4

Venkatarama Ayyar

Clause 5

Clause 2

Murlidhar

Clause 3

cl. 6

Khundkar

clause 2

Clause 3

clause 6

clause 2

Slieo Ghulam

Daryao

Daryao Gir

L.R. 67 I.A. 1

L.R. 61 I.A. 405

Deoki N andati

rlidhar

Venllataranta

Acharya

Shivji

Hanumarlji

the Code of Civil Procedure

B. K. Mukherjea

Kane

Prathista Mayukha

V.:nkatarania


October 11

SUPREME COURT REPORTS [1956]

CLERKS OF CALCUTTA TRAMWAYS v.

CALCUTTA TRAMWAYS CO. LTD.

[BHAGWATI, VENKATARAMA AYYAR, s. K. DAS and GovINDA MENON JJ.]

Industrial dispute-Dearness allowance-Clerks-Middle class employees-Whether uniform rates to be adopted-Decisions of Trilmnals-Power of the Supreme Court to interfere.

It is well settled that the decisions of a Tribunal on questions of fact are final and that the Supreme Court would interfere only in cases where (1) the Tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly iails to exercise a patent jurisdiction; (2) there is an error apparenb on the face of the decision; (3) the Tribunal bas erroneously applied well-accepted principles of jurisprudence.

The Bengal Chamber of Commerce of which the respondent Company was a member, had made an investigation into the cost of living index for the middle class families and fixed the dearness allowance payable to the employees of the mercantile firms in Calcutta. Before the Industrial Tribunal as well as the Labour Appellate Tribunal the claim was put forward on behalf of the appellants {bhe clerks of the respondent Company) that the dearness allowance for them should be at the same rates as those decided upon by the Bengal Chamber of Commerce in respect of the middle classes to which the appellants belonged and they contended that the procedure adopted by the Labour Appellate Tribunal leaving out 20 points of the living cost index un-neutralised was not justifiable.

Held, that in matters of bhe grant of dearness allowance there cannot be a hard and fast rule applicable to all kinds of employees and except in the very lowest class of manual labourers it is not proper to neutralise the entire rise in the cost of living by dearness allowance. There are different grades among the middle classes and the appellants cannot claim to have the same rates of dearness allowance as those fixed for the clerks of the mercantile firms by the Bengal Chamber of Commerce.

CIVIL

APPELLATE JURISDICTION: Civil Appeal No. 105 of 1954.

Appeal by special leave from the judgment and order dated November 6, 1952, of the Labour Appellate Tribunal, Calcutta in Appeal No. Cal-3 of 1952

1956 arising out of the award dated September 25, 1951, of the Court of District Judge, Industrial Tribunal, Calcutta in Case No. VIII-23 of 1951.

Clerks of Calcutta

Tramways

S. 0. Isaacs, A. K. Datt and Sukumar Ghose, for the appellants.

M. 0. Setalvad, Attorney-General for India, D. R.

Das and S. N. Mukherji, for the respondent.

B. Sen and P. K. Bose, for Intervener (State of West Bengal).

1956. October 11. The Judgment of the Court was delivered by

GOVINDA MENON J.-This appeal is by special leave against the decision of the Labour Appellate Tribunal of India, Calcutta, which modified the award, passed by the Industrial Tribunal, Calcutta, in the matter of a dispute referred to it by the Government of West Bengal, for adjudication with regard to the rates of dearness allowance for clerks and Depot cashiers, employed by the Calcutta Tramways Coy.

Ltd., numbering about 600, out of a total of 10,000 workmen. Disputes having arisen between the workmen of the Calcutta Tramways Coy. Ltd. (which may hereafter be called 'The Company') on the one hand, and the employers on the other, relating to the dearness allowance payable to the workmen, there were two previous awards, one dated May 16, 1947, by Sri S. N. Guba Roy, and the other dated October 27, 1948, by Sri P. K. Sircar. Both of these awards related to all the employees of the Company and not to the clerks and Depot cashiers alone.

Subsequently a reference was made by the West Bengal Government on June 13, 1951, concerning a dispute relating to the dearness allowance of the workmen of the Company, excluding clerks and Depot cashiers.

There was an award and an appeal, and in that appeal the Appellate Tribunal increased the dearness allowance by Rs. 7 /8/- for workmen in the pay ranges below Rs. 50 and up to the pay range of Rs. 250 and by a flat rate

Calcutta Tramways

Co. Ltd.

Clerks of Calcutta Tramways v.

Calcutta Tramways

Co. Ltd.

Govinda , Menon].

of Rs. 5 in the higher pay ranges taking the cost of living index of the workmen class at 370 points.

In the present award, which relates to the clerks and the Depot cashiers alone, the Industrial Tribunal gave Rs. 47 /8/· as dearness allowance for a pay range of Rs. 51 to Rs. 100 and provided for a progressive increase of Rs. 5 for each slab of Rs. 50 in the pay range. The Appellate Tribunal increased the amounts so awarded by Rs. 2/8/- more than what was granted to the other workmen of the Company. The cost of living index for the middle class families had been fixed by an investigating body of the Bengal Chamber of Commerce during the relevant year at 382 points, whereas the index in the case of working class was fixed at 370 points. The increased amount awarded for the various pay ranges and shown in the decision of the Labour Appellate Tribunal which need not be repeated again; was founded on these cost of living indices though the amount was not the same as recommended by the Bengal Chamber of Commerce.

Before the Labour Appellate Tribunal, as well as the Industrial Tribunal, the claim put forward on behalf of the clerks and Depot cashiers was that the dearness allowance should be on the same rates as decided upon by the Bengal Chamber of Commerce of which the company is a member and no difference should have been made between the dearness allowance recommended by the Bengal Chamber of Commerce and that to be awarded by the Industrial Tribunal. In fact, what was urged was that the recommendation of the Bengal Chamber of Commerce ought to have been accepted in its entirety for the reason not only that the Company is a. first class member of the Chamber but also that the class of persons, namely the middle classes for whom the recommendation was in tended, includes clerks and Depot cashiers of the Company as well, and the same having been accepted by the Mercantile Tribunal which dealt with the dearness allowance payable.to the employees of the mercantile firms in Calcutta, the Industri1'1 Tribunal, as well as the Labour Appellate 'I'ribunal, should have

Clerks of Calcutta

Tra1nways

Calcutta Tramu•ays

Co.lid.

followed the same. The learned Judges of the Appellate Tribunal held that those recommendations were made to the mercantile firms where the workmen consist practically of the clerical and subordinate staff as opposed to Tramways Company where the large percentage of workmen belong to other categories, the clerks and Depot cashiers being only a small minority, though they found that the cost of Go"i"da Me11o11 J. living index found by the Bengal 8hamber of Commerce should be accepted as the criterion for awarding the increased dearness allowance in the case of the employees of the Company as well.

On behalf of the appellants it is urged before us that a different mode of treatment than the one recommended by the Bengal Cham her of Commerce should not have been resorted to in the case of the appellants, for the reaso~ that those recommendations are intrinsically reasonable, considering the uniformity of life and modes of habit of the middle classes to which the clerks and Depot cashiers belong.

The respondent Company being a member of the Bengal Chamber of Commerce should, instead of ignoring the recommendation, have acted upon it as a mandate, so that its action as a member should hot be inconsistent with that followed by others especially since there have been no valid reasons alleged for the non-acceptance of the recommendation. It is further urged that there is no acceptable defence put forward that the abovementioned recommendation will not apply to institutions having a mixed sta.ff as the Company in question. On the other hand, what is stated in the written statement of the Company is that according to the previous award it had been paying a uniform sliding scale of dearness allowance for all categories of workmen as detailed in Paragraph 6(b).

It is, therefore, contended that what the Industrial

as well as the Appellate Tribunal should have done was to have evolved a principle to fix the dearness allowance in relation to the basic salaries and the cost of living index, as that alone would satisfy the recommendations of the Bengal Chamber of Commerce.

Clerks of Calcutta

Tramways v.

Calcutta Tra11iways

!; o.Ud.

Gotiuda Menon J.

We have, therefore, to see whether in following the course now adopted by the Tribunals below they have ignored any legal principle or acted in violation of any statute. There can be no doubt whatever that if.the scheme adumbrated by the Bengal Chamber of Commerce is adopted in the case of clerks and Depot cashiers, they would get amounts far in excess and out of all proportion to what were awarded to the other workmen whose appeal had already been disposed of by the Appellate Tribunal though it has to be recognized that the cost of Jiving index in the case of the appellants has to be considered to be more than the index of workmen whose avocations are the result of physical labour rather than of mental faculties. In short, the clerks and Depot cashiers should be considered as the white collared fraternity.

In these circumstances, we have to find out whether the procedure followed by tl; ie Labour Appellate Tribunal, namely leaving out 20 points un-neutralised and allowing Rs. 5 per 20 points rise in the Hving cost index but taking into consideration a higher living cost index of 382 in the case of the appellants as compareq with the average index of the workmen of 370, is a justifiable method to be adopted. It is difficult t<> hold that the middle classes in this country can be said to form a separate stratum of society even in a city like Calcutta having the same mode of life, the same necessities, uniform requirements and comforts.

There are different grades even among the middle classes and it is unwise to predicate the same degrees of comforts and necessities for everyone who is said to belong to the middle classes. Such being the case, to say that the clerks in the mercantile firms can be considered equal in all respects to the 600 clerks and Depot ca.shiers of the Company, is an argument which cannot be accepted as sound. The Labour Appellate Tribunal has not completely ignored the recommendations of the Bengal Chamber of Commerce, for it is seen that in raising the amount awarded by the Industria.l

Tribunal the Appellate Tribunal has based its conclusion on the higher cost of living index in the case of

Clerks of Calcutta middle class employees.

Tramways Such being the case, the point for consideration is v. whether any quest.ion of principle is involved, so that Calcutta this court might interfere with the conclusions arrived Tt'amways at by the Labour Appellate Tribunal. Wide and unco. Ud. definable with exactitude as the powers of the Court are (see Dhakeswari Cotton Mills L.td. v. Commissioner of Income Tax, West Bengal(1)), it is now well settled that generally the necessary pre-requisites for this court's interference to set right decisions arrived at by Tribunals whose conclusions on questions of fact are final can be classified under the following categories, namely, (i) where the Tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly fails to exercise a patent jurisdiction; (ii) where there is an apparent error on the face of the decision and

(iii) where the Tribunal has erroneously applied wellaccepted principles of jurisprudence. It is only when errors of this nature exist, that interference is called for. In the present case the appellants have not been able to show that there is any deviation from those principles. If the Tribunal below had failed to resort to a basic principle, then something might have been said but what has been done is, that in computing the dearness allowance it has considered various methods and adopted one of them. That being the case, it is difficult to say that there is any question of principle at all.

The report of the Central Pay Commission at page 46, in Paragraph 71, made the following recommendation:

"Without adopting such a complicated procedure, we think it sufficient to provide by slabs for persons on different levels of pay, as shown in the accompanying table which also provides for diminishing rates of dearness allowance as the cost of living index falls, taking the stages by 20 points at a time".

(1) [1965] 1 S.O.R. 9!ll, 9:19.

Gooinda Menon}.

Clef'ks of Calcutta Tramways v.

Calcutta Tra, nways

Co. Ltd.

Govinda Menon J.

It refrained from recommending the neutralisation of the entire higher coat of living by means of dearness allowance.

The report of the Committee on Fair Wages appointed by the Government of India in .Chapter IV, dealing with Wage Adjustments considered in paragraph 43 the various modes and methods of granting relief to meet the burden of increased cost of living and came to the conclusion that there is no practice of uniformity in the extent of compensation given to employees to meet the increased cost of living. It observed as follows:-

"Tbe Pay Commission bas accepted the principle that the lowest paid employee should be re-imbursed to the full extent of the rise in the cost of living and that higher categories of employees should receive a diminishing but graduated scale of dearness allowance. The Pay Commission bas rejected the principle of a flat rate for all categories of employees, irrespective of their basic salaries".

Finally it came to the conclusion "that for the lowest categories of employees the target should obviously be compensation to the extent of 100 per cent. of the increase in the cost of living. For categories above the lowest we agree that the same consideration will not apply. A flat rate equal to the rate allowed to the least skilled worker is not likely to satisfy higher categories":

In the analysis regarding the Industrial Awards, issued by the Government of India, Ministry of Labour, the question of dearness allowance is considered somewhat elaborately. At page 33 there is a discussion regarding the linking of dearness allowance to the cost of index numbers and as to whether a flat rate of dearness allowance irrespective of the income group should be allowed or not.

They further considered the linking of dearness allowance to the cost of living index numbers on the scale of income groups, but at rates diminishing with the income received. A perusal of the fairly elaborate discussion in Chapter

.... ---

1956 III shows that there cannot be a hard and fast rule applicable to all kinds of employees. Very much will d h d f 1 b h f Clerks of Calcutta depen upon t e con itions o p. our, t e nature o Tramways the locality and the mode of living. v.

Calcutta In Buckingham and Carnatic Company Ltd., Madras

v. Workers of the Company(1) the Tribunal considered Tramways the question of neutralisatiOn of the rise of the cost co. Ltd. of living by the grant of dearness allowance and was Govinda Meno11J. of the opinion that cent per cent neutralisation cannot be allowed, as it would lead to a vicious circle and add fillip to the infiatory spiral. It further held that there was no reason why the Industrial worker should not make sacrifices like all other citizens. We can now take it as settled that in matters of the grant of dearness allowance except to the very lowest class of manual labourers whose income is just sufficient to keep body and soul together, it is impolitic and unwise to neutralise the entire rise in the cost of living by dearness allowance. More so in the case of the middle classes.

The criterion to be adopted in the fixation of dearness allowance is also considered in Mahomad Rai Akbarali Khan v. The Associated Cement Companies Limited(9) where similar principles are discussed.

On behalf of the appellants our attention was invited to certain observations contained in The Millowners' Association, Bombay v. The Rashtriya Mill Mazd, oor Sangh(3), but we do not think that any different principle is enunciated there at all. Mr. Isaacs, the learned counsel for the appellants, laid great stres1;1 on the decision in Workmen of the Firestone Tyre and Rubber Company of India Ltd., Bombay v.

Firestone Tyre and Rubber Oompam, y of India Ltd., Bombay(4) where the Tribunal expressed the opinion that dearness allowance is intended to neutralise rise in the cost of living and as there is a well recognised difference between the clerical staff and other workmen in their cost of living, the latter are not entitleµ

(1) [1952] L.A.O. 490, 519, 520.

(2) [1953) Ii A.O. 677.

(S) {1955] L.A.C. 371.

(4) (1953] L.A.O. 509.

19>6

Clerks of Calcutta Tramways v.

Calcutta Tramways

Co. Lt4.

Govi"nda Menon J.

to claim the allowance on the same basis. From this the learned counsel contends that the recommendations of the Bengal Chamber of Commerce should be accepted iµ toto. In our opinion, the decision does not help the point of view put forward on behalf of the appellants. In fact, the Labour Appellate Tribunal has made a distinction between the physical labourers and the clerks and Depot cashiers.in whose work it is not alone the physical exertion that is essential but some kind of mental and brain work as well and accordingly the higher cost of living index taken into account.

In such circumstances, it seems to us that the Labour Appellate Tribunal has, after conside.ring the various points of view, come to the correct conclusion in awarding the dearness allowance it did. There is no question of law or principle invo)ved and the appeal has to be dismissed with costs of the Calcutta Tramways Coy. Ltd.

The State of West Bengal, which has intervened during the appeal, will bear its own costs.

CLERKS OF CALCUTTA TRAMWAYS

CALCUTTA TRAMWAYS CO. LTD

BHAGWATI

s. K. DAS

GovINDA MENON JJ.

Supreme Court

Bengal Chamber of Commerce

Calcutta

S. 0

A. K. Datt

Sukumar Ghose

M. 0. Setalvad

D. R.

Das

S. N. Mukherji

B. Sen

P. K. Bose

GOVINDA MENON

Government of West Bengal

Calcutta Tramways Coy.

Ltd.

Calcutta Tramways Coy. Ltd.

May 16, 1947

S. N. Guba Roy

October 27, 1948

P. K. Sircar

West Bengal Government

June 13, 1951

Tramways Company

Bengal Cham her of Commerce

Gotiuda Menon

Labour Appellate Tribunal

Central Pay Commission

Gooinda Menon

Govinda Menon

Tbe Pay Commission

Government of India

Govinda Meno11J.

Isaacs

Govi"nda Menon

State of West Bengal


S.C.R.

SUPREME COURT REPORTS

BURN & CO., CALCUTTA

THEIR EMPLOYEES

(and connected appeal)

[BHAGWATI, VENKATARAMA AYYAR, s. K. DAS

and GovINDA MENON JJ.]

Industrial Dispute-Tribunal's award-Term of operation-If and 'lihen can be reopened in a subsequent dispute-Principle of res judioata, if applicable-Boni<S~Olaim when maintainable-Order passed by the Appellate Tribunal-Appealability-Power of Supreme - Court in appeal-Inditstrial Disputes Act (XIV of 1947), s. 19(6)- Industrial Disputes (Appellate Tribunal) Act (XL VIII of 1950). s. 7( 1)( a)-Oonstitution of India, Art. 186.

An award of an Industrial Tribunal is intended to have a long term of operation, and can he reopened under s. 19(6) of the Industrial Disputes Act XIV of 194 7 only when there has been a. material change in the circumstances on which it was based.

To hold otherwise would be to defeat the two be.sic. objects which all industrial legislations have in view, namely, to ensure to the workmen a. fair return for their la.hour and to prevent disputes between the employers and employees, so that production might not be affected and the interests of the society might not suffer.

That although the rule of res judicata as enacted by s. 11 of the Code of Civil Procedure does not in terms apply to such an award, its underlying principle which is founded on sound public policy and

is of universe.I application must apply.

The Army tt Navy Stores Ltd., Bombay v. Their Workmen, ([1951] 2 L.L.J. 31) and Ford MotfJT Oo. of India Ltd. v. Their Workmen, ([1951] 2 L.L.J. 231). approved and applied.

Sheoparson Singh v. Ramnandan Prasad Singh, ([1916) L.R. 43 I.A. 91), referred to.

Consequently, where, as in the instant case, the Union of the employees of a. certain section of the appellant Company served a. notice on the Company under s. 19(6) of the Act terminating a previous a.ward which had applied to its members the scales of pay and dearness allowance fixed by the Bengii.l Chamber of Commerce with slight modifications, and demanded that the more favourable scale of pay adopted by the Mercantile Tribunal in its a.ward might be applied to them, and the Tribunal appointed to adjudicate the dispute, held that, there having been no change in the circumstances in which the previous a.ward had been ma.de, the same was binding between the parties and could not be modified, but the Appel

10~

October I I.

Burn and Co.,

Calcutta

late Tribunal in appeal held otherwise and brushed aside the previous award, held that the order of the Appellate Tribunal was erroneous in law and as such liable to be set aside.

Held further, that the reason for the grant of a bonus being Their Employees that the workers should be allowed to share in the prosperity to which they have contributed, unless the profits for a particular year were adequate for a payment of bonus to all the workers of the Company in a.II its sections 1 no claim for it could at all arise either in law or equity. Karam Chand Thappar tt Bros.' Workmen v. The Company ([1953] L.A.O. 152), refarred to.

That an order passed by the Tribunal refusing reinstatement would be appealable under s. 7(l)(a) of the Industrial Disputes (Appellate Tribunal) Act of 1950 if it involved a substantial question of law and it was not necessary to decide in the present case whether the decision of the Appellate Tribunal that an appeal lay to it under that section was final and not open to question in a. civil court, as the correctness of that decision was challenged not collaterally or in an independent proceeding but in an appeal under Art. 136 of the Constitution and it was open to the Supreme Court in such an appeal to consider the legality or otherwise of the orders passed either by the Tribunal or by the Appellate Tribunal in appeal.

Pankaj Kumar Ganguli v. Tlie Bank of India, ([1956] 60 C.W.N. 602) and Upper Ganges Valley Electric Employees Union

v. Upper Ganges Valley Electricity Supply Co. Ltd. and another, (A.I.R. 1956 All. 491). distinguished.

That the omission to draw up a formal charge-sheet against a workman could not vitiate an order of dismissal if he was aware of the charge framed against him and had an opportunity of offering his explanation.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 325 of 1955 and 174 of 1956.

Appeal by special leave from the decision and order dated the 29th April 1955 of the Labour Appellate Tribunal of India at Calcutta in Appeal No. Calcutta-110 of 1953 arising out of the award dated 24th June, 1953, of the Industrial Tribunal, Calcutta.

M. G. Setalvad, Attorney-General for India, B.

Sen, S. N. Mukherji and B. N. Ghosh for M/s. Burn & Co.

N. G. Ghatterji, A. K. Dutt and B. P. Maheshwari for the workmen.

1956. October 11. The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.--Disputes having arisen between Messrs Burn and Company, Calcutta, hereinafter called the Company, and a section of their employees in Howrah Iron Works, hereinafter referred to as the Union, the Government of West Bengal issued a notification on 16-12-1952 referring the same to the First Industrial Tribunal for adjudication.

Though there were as many as_l3 items comprised in the reference, we are concerned in these appeals only with four of them, viz., (1) revision of pay of clerical and sub-staff, (2) grades of sarkars and checkers, (3) bonus and ( 4) reinstatement of four employees, S. N.

Chatterjee, Ashimananda Banerjee, Panchanan Rana and Joydeb Banerjee and/or payment of compensation to them.

By his award dated 24-6-1953, Shri Banerji, the Industrial Tribunal, held (1) that there were no grounds for revising the scale of pay of the clerical and sub-staff; (2) that the pay of checkers should be increased and that they should be paid ac- _ cording to the scale as set out in his award; (3) that the profits of the Company did not warrant the grant of any bonus in addition to what had been paid by the Company; and (4) that of the four employees, Shambunath Chatterjee should be re-employed as a

:ihecker on his old pay, that Ashimananda Banerjee a.nd Panchanan Rana should be "re-employed in posts equivalent to their own posts as new incumbents" and that Joydeb Banerjee was not entitled either to reinstatement or compensation.

Against this award, the Union preferred an appeal to the Labour Appellate Tribunal.

By its decision dated 29-4-1955 the Appellate Tribunal substantially modified the award of Shri Banerji in favour of the Union.

It held (1) that the minimum pay of the clerical and sub-staff should be raised, and that corresponding changes should be made in the ceiling level, in the increments and in the scales of pay of other grades of the staff; (2) that the scale of pay of the sarkars and checkers should be increased and incre-

B11rn and Co., Calcutta v.

Their Employees

Bt1rn and Co.,

Calcutta

Their BmJ>loyees

Venkatarama AyyarJ.

ments given as laid down in the award; (3) that the employees should be paid a month's bonus in addition to what had been given to them; and (4) that of the employees, Shambunath Chatterjee, Ashimananda Banerjee and Panchanan Rana should not merely be re-employed but reinsta.ted with continuity of service, and that further Shambunath Chatterjee was entitled to compensation at the rate of six months' basic wages with dearness allowance, As for Joydeb Banerjee, the Appellate Tribunal held that though his reinstatement was not desirable, he was entitled to one year's basic wages with dearness allowance as compensation.

Against this decision, the Company has preferred Civil Appeal No. 1125 of 1955 by special leave, and the Union has likewise preferred Civil Appeal No. 174 of 1956, the leave being limited in the latter to the four points raised by the Company in its appeal. (I) The first question relates to the increase in the minimum wages of the clerical and sub-staff. For a correct understanding of the true position, it is necessary to refer to the facts which form the background of the present dispute. In 1946, the Bengal Chamber of Commerce took up the question of fixing, suitably to the changed conditions brought about by World War II, wages and other terms of service of the employees in industrial concerns, and framed a scheme classifying them under different categories, and fixing scales of pay and dearness allowance for the several categories, and that was brought into force in the Company on 1-10-1946. Under this scheme, the scale of pay for the lower categories of employees, with whom we are concerned in these appeals, was as follows:

Glass of employees

Junior clerks Tracers Clerks Typists Steno-typists I

Comptometer}

Operators

Basic monthly pay range Rs. 60-2-90

60-2-80 60-4-124 (E. B. at 105) 60-4-90

80-4-124 (E. B. at 105)

Juniors (Drg. and Estg.) 60-4-88-2-100 Junior Draftsmen} 92-4-124-2-134 Junior Estimators_

Disputes then arose between Engineering Firms in the State of West Bengal and their employees as regards :fixation of grades, wages and dearness allowance, and by a notification dated 31-10-1947 the Gov.:- ernment referred them to the adjudication of the First Engineering Tribunal. The appellant Company and its workmen were parties to the proceedings but not the present Union, which was composed of the clerical and sub-staff.

On 30"6-1948 the Tribunal passed an award, the terms whereof were, in general, less favourable to the employees than those fixed by the Bengal Chamber of Commerce and adopted by the Company on 1"10-1946.

While the proceedings were pending before the Engineering Tribunal, disputes arose between various Mercantile Firms in Calcutta and their employees as regards wages, dearness allowance and other terms of service, and by notification dated 17-1-1948 the Government of West Bengal referred them to the adjudication of another Tribunal, called the Mercantile Tribunal. This Tribunal pronounced its award on 26-8-1949, and the scale of pay provided therein for - the lower categories of employees was as follows:

Grade D .... Rs. 70-3-130 Grade C . ...

Rs. 70-4-134 The Union was party No. 192 in those proceedings, but for technical reasons, the Tribunal declined to adjudicate on their disputes. The result was that this a ward was no more binding on the parties than the one passed by the Engineering Tribunal. But the scale fixed in the award of the Mercantile Tribunal was decidedly more favourable to the employees than either the scale recommended by the Bengal Chamber of Commerce and adopted by the Company on 1-10-1946 or that fixed in the award of the Engineering Tribunal, and it is therefore not surprising that it should have inspired the Union to present a demand

Burn and Co., Calcutta v.

Their.Employes

Venkatarama

AyyarJ.

Burn and Co.,

Calcutta

Their Emj>loyees

Venkatarama

Ayyar J.

for wages and dearness allowance on the scales provided therein. The Company having declined to accept it, there arose an industrial dispute, and by a notification dated 18-1-1950, the Governmt>nt of West Bengal referred the same for adjudication to one Shri Palit, District Judge. Before him, the Company contended that as the members of the Union were employees in an Engineering concern, the scale of pay applicable to the!Ilwas that laid down in the award of the Engineering Tribunal, and that as the scale actuallv in force was more favourable to them than that scale, there was no ground for revision. The Union, on the other hand, contended that not having been a party to the proceedings before the Engineering Tribunal, it was not bound by the award therein, and that as its members were clerical staff and not workers, the scales fixed in the award of the Mercantile Tribunal were more appropriate to them. By his award dated 12-6-1950 Shri Palit held that the nature of the work and the qualifications of the clerical staff were not the same in all business establishments, that the clerks in mercantile concerns were better qualified and had to do more onerous work than the members of the Union, that the latter could not be put in the same position as the former, and that the scale of pay fixed in the scheme of the Bengal Chamber of Com- . merce which was adopted by the Company was fair and required no revision. He, however, made some slight changes in the incremental scales and the maximum limits of the grades.

The scheme as settled in his award with. reference to the categories involved in this appeal was as follows: Grade Class of employees

"D" Junior Clerks Tracers Clerks Typists Stenotypists and Comptometer Operators

Pc.y according to the award of Shri Palit 60-3-96

60-3-90 60-4-140 (E.B. at 100) 60-4-100

80-4-124 (E.B. at 120)

"C" Junior (Drawing and Estimating) 60-4-120

Junor Dratsmen } 92_4_140.

J um or Estimators

The Union preferred an appeal against this award, but that was dismissed as barred by limitation.

Under section 19(3) of the Industrial Disputes Act XIV of 1947, an award is to be in operation for a period of one year, and under section 19(6), it is to continue to be binding on the parties even thereafter, until terminated by either party by giving two months' notice. Acting on this provision, the Union issued a notice to the Company on 12-7-1951 being exactly one year from the date of publication of Shri Palit's award dated 12-6-1950, declaring its intention not to be bound by it. This was followed in November by presentation of demands including one for raising the scale of pay to the level adopted in the award of the Mercantile Tribunal, and the result was an industrial dispute, which is the subject-matter of the present reference.

Shri Banerji, who heard the reference, held that the question as to the scale of pay had been directly adjudicated upon by Shri Palit, that, on principle, the decision of a Tribunal on a matter referred to it should not be disturbed, unless there had been a change of circumstances since the date of the award, and as none such existed, the wage structure as fixed by him should stand.

The Appellate Tribunal disagreed with this conclusion. lt held that the award of Shri Palit, which Shri Banerji accepted, was bad for the reason that it had failed to examine "the question as to whether the minimum salary fixed by the Managing Agents was adequate to cover the cost of a balanced diet and provide frugal comforts which a workman of the clerical staff must have to maintain the efficiency of his work". It then referred to the opinion of Dr. Akroyd that an intake of 2,600 calories of food was necessary for efficiency of work, quoted some decisions of the Labour Tribunal in which the minimum pay of the clerical staff had been fixed at Rs. 70 and even more, and decided that the minimum pay should be fixed at Rs. 65 per

Burn and Co.,

CalcUtta

Their Emj>/oyee.s

Venkatarama

Ayyar J,

Bum and Co., Calcutta v.

Their Employees

Venkatarama

AyyarJ.

mensem for the clerical and sub-staff of the Company.

Having raised the floor level of the wage structure as aforesaid, it correspondingly raised the ceiling level and the scales of increment, and further with a view to maintain the differential scales as between the different-categories, it raised the minimum pay in scales where it stood at Rs. 65 and more, with "consequential change in their incremental scales and the maximum grades".

It is argued for the appellant Company that the Appellate Tribunal was in error in brushing aside the award of Shri Palit and in deciding the matter afresh, as if it arose for the first time for determination, that when once a dispute is referred to a Tribunal and that results in an adjudication, that must be taken as binding on the parties thereto, unless there was a change of circumstances, and as none such had been alleged or proved, the award of Shri Palit should have been accepted, as indeed it was by Shri Banerji, and the decisions in The Army & Navy Stores Ltd., Bombay v. Thei1 Workmen(') and Ford Motor Go. of India Ltd. v. Their Workmen(') were cited in support of this contention. In the instant case, the Labour Appellate Tribunal dismissed this argument with the observation that that was "a rule of prudence and not of law". If the Tribunal meant by this observation that the statute does not enact that an award should not be re-opened except on the ground of change of circumstances, that would be quite correct. But that is not decisive of the question, because there is no provision in the statute prescribing when and under what circumstances an award could be re-opened.

Section 19(4) authorises the Government to move the Tribunal for shortening the period .during which the award would operate, if "there has been a material change in the circumstances on which it was based". But this has reference to the period of one year fixed under section 19(3) and if that indicates anything, it is that that would be the proper ground on which the award could be reopened under section 19(6), and thafis what the learned Attorney-General

(1) [1951] 2 L.L J. 31.

(2) [1951) 2 L.L.J. 231,

contends. But we propose to consider the question 1956 on the footing that there is nothing in the statute to , Burn and Co., indicate the grounds on which an award could be re- Calcutta opened. What then is the position? Are we to hold v. that an award given on a matter in controversy bet- Their Employees ween the parties after full hearing ceases to have any force if either of them repudiates it under section Venkatarama h h AyyarJ, 19(6), and that the Tribunal has no option, w en t e matter is again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, and come to a fresh decision. That would be contrary to the well recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted. to be re-agitated. It is on this principle that the rule of res judicata enacted in section 11 of the Civil Procedure Code is based.

That section is, no doubt, in terms inapplicable to the present mp.tter, but the principle underlying it, expressed in the maxim "interest rei publicae ut sit finis litium'', is founded on sound public policy and is of universal application. (Vide Broom's Legal Maxims, Tenth Edition, page 218). "The rule of res judicata is dictated" observed Sir Lawrence Jenkins, C.J. in Sheoparsan Singh v. Ramnandan Prasad Singh(1) "by a wisdom which is for all time". And there are good reasons why this principle should be applicable to decisions of Industrial Tribunals also.

Legislation regulating the relation between Capital and Labour has two objects in view. It seeks to ensure to the workmen who have not the capacity to treat with capital on equal terms, fair returns for their labour. It also seeks to prevent disputes between employer and employees, so that production might not be adversely affected and the larger interests of the society might not suffer.

Now, if we are to hold that an adjudication loses its force when it is repudiated under section 19(6) and that the whole controversy is at large, then the result would be that far from reconciling themselves to the award and settling down to work it, either party will treat it as a

(1) (1916] L.R. 43 I.A. 91; [1916] I.L.R. 43 Cal, 694.

Burn and Co., Calcutta v.

Their Employees

Venkatara, na Ayyar J,

mere stage in the prosecution of a prolonged struggle, and far from bringing industrial peace, the awards would turn out to bt; i but truces giving the parties breathing time before resuming hostile action with renewed vigour. On the other hand, if we are to regard them as intended to have long term operation and at the same time hold that they are liable to be modified by change in the circumstances on which they were based, both the purposes of the legislature would be served. That is the view taken by the Tribunals themselves in The Army & Navy Stores Ltd., Bombay v. Their Workmen(1) and Ford Motor Go. of India Ltd. v. Their Workmen('), and we are of opinion that they lay down the correct principle, and that there were no grounds for the Appellate Tribunal for not following them.

We should add that the Appellate 'J.'ribunal was also in error in thinking that Shri Palit had failed to advert to the principle on which basic wages should be fixed, and that he had not referred to the doctrine of Dr. Akroyd about the need for a balanced diet of 2,600 calories. It is true that Shri Palit does not in terms refer to these matters in his award.

But they were all discussed in the awards of both the Engineering Tribunal and the Mercantile Tribunal.

The dispute between the parties was whether the one award or the other should be taken as the basis for fixation of the scale of pay, and Shri Palit decided that it was the Engineering Tribunal's award and not the other that was more appropriate to the class of employees, of which the Union was composed.

In basing his award on the award of the Engineering Tribunal, Shri Palit must be taken to have considered all the factors relied on by the Tribunal for fixing the scales and the criticism that the award does not refer to them once again is one of form rather than of substance. We must, therefore, hold that the decision of the Appellate Tribunal cannot be maintained even on its own ground.

The position then is this: The question of scales of pay was decided by Shri Palit in his award dated

(1) [1951] 2 L.L.J. 31.

(2) [1951] 2 L.L.J. 231.

12-6-1950, and the Union was a party to it. It is not alleged that there has been any change in circumstances between that date and 16-12-1952 when the present reference was made to Shri Banerji. On the principles stated above, therefore, the award of Sbri Palit should not be disturbed.

This conclusion would have entailed the reversal of the order of the Appellate Tribunal and the restoration of the award ofShri Banerji. We are of opinion, however, that the scale fixed by the Appellate Tribunal in its order dated 29-4-1955 should not be interfered with, in so far as it fies the minimum pay of the clerical and sub-staff at Rs. 65 per mensem. It is common ground that dearness allowance is payable under the rules of the Company, only when the cost of living index exceeds point 180.

The basic wages should therefore be fixed with 180 point as cost of living index. When we turn to the award of the Engineering Tribunal, we find that it fixed the basic wages after taking the cost of living index as 160 points. Before Shri Palit, the Company contended that the scale fixed in the award of the Engineering Tribunal should form the basis of fixation of the pay scale of the Union, and though the Tribunal held that the award was not as such binding on the Union, it agreed with the Company that it was the scale fixed therein and not that fixed in the award of the Mercantile Tribunal that was more appropriate to the clerical staff of an Engineering concern, and adopted the scale fixed by the Company on 31-10-1946 as being "slightly in advance of the terms contained in the Engineering Tribunal's award". It is clear from a reading of the award of Shri Palit that he was not conscious that the basic wages had been fixed by the Engineering Tribunal with point 160 as the cost of living index, and his observation that the scale adopted by the Company was an advance on that fixed by the Engineering Tribunal is consistent only with an assumption by him that the basic wages had been fixed both by the Company and the Engineering Tribunal with point 180 as the cost of living index.

Now, if we are to accept the scale fixed in the a ward

Burn and Co.,

Calcutta

v. .Their Employees

Venkatarama

AyyarJ.

Burn and Co.,

Calcutta ...

Their Employees I - Venkatarama

A, yat' J. ~

of Shri Palit as did Shri Banerji, the position would be that while for purposes of basic wages the cost of living index point would be 160, for purposes of dearness allowance it would be 180, and that would work great injustice on the workers. It is the realisation of this fact that must have led Mr. Bose, counsel for the Company, to raise at a late stage of the hearing of the appeal the contention that the cost of living index ofthe Bengal ChamberofCommerce which was adopted by the Company was different from that of the Government. But this contention went against the admission made by Mr. Sen on behalf of the Company at an earlier stage, and was rightly rejected by the Appellate Tribunal, and that was abandoned before us.

There is thus, on the face of the record, an error of a fundamental character.

It is argued for the appellant that this point is not open to consideration at this stage, as it had not been raised by the Union at any time before, and that, in any event, the matter should be remanded for further enquiry. But the question is whether in view of what appears on the face of the record this is a fit case for our interference in special appeal. The minimum pay fixed by the Appellate Tribunal would be quite proper if the cost of Ii ving index is taken, for the purpose of fixing the basic wages, at point 180 instead of 160, and there is no reason why we should not accept it.

Nor do we think that a remand is called.for in the interests of justice, as, in the face of the undisputed facts, it can only result in the proceedings dragging on and the relationship between the parties deteriorating. Under the circumstances, we do not propose to disturb the minimum pay of Rs. 65 per mensem fixed by the Appellate Tribunal. But we see no justification for raising either the ceiling levels or the starting pay of other categories of employees whose initial pay was Rs. 65 per mensem or more. We accordingly set aside the scale of pay as fixed by the Appellate Tribunal and restore that of Shri. Banerji subject to the following modifications: Grade D Junior clerks Rs. 65-3-98 Tracers 65-3-92 •

...

Grade C Clerks

Typists Junior (Drawing

65-4-141 (E.B. at 105)

65-4-101

and Estimating) 65-4-121

(2) The second question relates to the grading of sarkars and checkers. The claim put forward on their behalf is that they should be raised to the category of clerks. This was rejected by Shri Palit in his award dated 12-6-1950 and again by Shri Banerji in those proceedings.

The Appellate Tribunal before whom this claim was repeated, while observing that the work of sarkars and checkers was "not of the same nature as that of the members of the clerical staff", held, nevertheless, that the scales of pay fixed in the award of the Engineering Tribunal for clerks should be applied to them, and that therefore nonmatriculate sarkars and checkers should be put on Rs. 55-2t-80 scale and matriculate sarkars and checkers on Rs. 60-2~-90 scale. We are unable to uphold this order.

When once the Appellate Tribunal reached the conclusion that the sarkars and checkers could not be put in the same category as clerks, the question then. is simply whether any grounds had been made out for interfering with the fixation of pay scales by Shri Banerji. So far as the sarkars are concerned, the scale had been fixed by Shri Palit, and Shri Banerji adopted it.

As no change in the circumstances was alleged in support of a revision thereof, there was no ground for interfering with it. As for checkers, they are hourly-rated workers, and Shri Banerji had revised their pay scale. Apart from stating that "the ends of justice" required it, the Appellate Tribunal gave no reason for modifying his award. We are of opinion that the order of the Appellate Tribunal should be set aside both in respect of sarkars and checkers arid the award of Shri Banerji restored.

(3) On the question of bonus, the facts are that the Company had an elaborate scheme for granting bonus and the employees had been paid in accordance therewith. But the Union claimed that having regard to the profits made by the Company, the employees

Btlrn and Co.,

Calcutta v.

Their Employees

Venkatarama

AyyarJ.

Burn and Co., Calcutta v.

Their Employees

Venkatarama:

Ayyar J,

should be paid three months' basic wages as bonus for the years 1950 and 1951. It is not in dispute that the profits of the Company available for distribution for the year 1950 were Rs. 3.81 lakhs and for the year 1951, even less.

The monthly salary of the clerks, sub-staff, sarkars and checkers was Rs. 89,500 and the monthly wages of the workers were Rs. 1,75,000, making a total of Rs. 2,64,500. This is only for one factory, the Howrah Iron Works.

The Company owns nine other units at different places, and there is no evidence as to the monthly salary payable to the employees and workmen in those units.

Now, the surplus of Rs. 3.81 lakhs in the hands of the Company represents the total profits made by it in all its units, and there cannot be much of a doubt that this amount would be wholly insufficient to pay one month's basic wages as bonus to the employees of the Company in all its ten units. Shri Banerji accordingly held that the profits of the Company did not justify the grant of any bonus beyond what the Company had granted, and simplifying the complicated scheme of bonus which the Company had evolved, he directed that bonus should be paid, including what had been paid by it, at one month's basic pay. The Appellate Tribunal when dealing with this question agreed that "if all categories of workmen be paid bonus, there is no scope for the payment of any additional bonus".

But it held that as the other categories of workmen had not made any claim for bonus and as the amount payable to the members of the Union was only Rs. 89,000, the surplus was sufficient to justify the award to them only of another month's basic wages as bonus.

Whether we consider the question on principles of law or of equity, this conclusion is clearly unsound.

In law, a claim for bonus will be admissible only if the business had resulted during the year in sufficient profits. And as the reasons for the grant of bonus is that workers should share in the prosperity to which they have contributed, all of them would have the right to participate in it. Therefore, profits can be said to be sufficient to declare a bonus only if they

are sufficient to make a payment to all of them. If the profits are not sufficient for that purpose, then the very condition on which bonus could be declared would be absent, and no question of granting any bonus could arise.

As it is common ground that the profits of the Company are not sufficiel'lt to justify the award of bonus if it is to be paid to all the workers of the Company in all its units, it follows that there is in law no ground for the grant of bonus. Nor can such a claim be sustained in equity. The entire profits of the Company are the result of the labour of all the workmen and employees in all its units. To grant a bonus to a section of them on the basis of the total profits of the Company will be to give them a share in profits to which they have not contributed. We are wholly unable to appreciate the observation of the Appellate Tribunal that to refuse additional bonus to the Union employees would be to penalise them "not for their own fault but for the !aches of the coworkers, who abandoned their claim". The Tribunal forgets that, on its own finding, if all the workmen made a claim, no bonus could have been declared. It is not a question of their abandoning their claim but of their realising that they have none. If the order of the Appellate Tribunal is to be given effect to, some of the employees of the Company would get a bonus, while others not, and as observed in Karam Chand Thappar & Bros.' Workmen v. The Gompany(1), that must lead to disaffection among the workers and to further industrial disputes. The order of the Appellate Tribunal awarding an additional one month's basic wages as bonus is neither legal nor just and must be set aside and the award of Shri Banerii as regards bonus restored.

(4) It remains to deal with the question of the reinstatement and/or compensation of four employees, S. N. Chatterjee, Ashimananda Banerjee, Panchanan Rana and J oydeb Banerjee. It has been already stated that the order of Shri Banerji with reference to them was modified by the Appellate Tribunal by awarding compensation at the rate of six months' basic wages

(1) [1953] L.A.C. 1521 160.

Burn and Co.,

Calcutta v.

Their Employees

Venkatarama

AyyarJ.

Burn and Co.,

Calcutta v.

Their Employees

Venkatarama

Ayyar J,

to S. N. Chatterjee and one year's basic wages with dearness allowance to Joydeb Banerjee and by providing that S. N. Chatterjee, Ashimananda Banerjee and Panchanan Rana should not merely be re-employed but reinstated with continuity of service.

It is argued for the appellant that under section 7 of the Industrial Disputes (Appellate Tribunal) Act XL VIII of 1950, the order of the Tribunal refusing reinstatement was not open to appeal, as it is not one of the matters set out in section 7(l)(b), and that, in consequence, the order of the Appellate Tribunal in so far as it modified the order of the Tribunal as regards the four employees aforesaid, was without jurisdiction, and the decision in Ranganathan v. Madras Electric Tramways\) and Sudershan Steel Rolling Mills

v. Their Workmen( ) were relied on in support of this contention. It must be mentioned that retrenchment is one of the matters enumerated in section 7(l)(b), in respect of which an appeal would lie. But if the order is one of dismissal, it cannot be said to be one of retrenchment as that word is ordinarily understood, and will not be appealable under section 7(i)(b). In 1953 the legislature enacted the Industrial Disputes (Amendment) Act XLIII of 1953 wherein "retrenchment" was for the first time defined so as to include, subject to certain exceptions, the termination by the employer of the service of workmen for any reason whatsoever. (Vide section 2(oo) ). Under this definition, an appeal would be competent under section 7(1)(b)(vii) in the case of termination of service, subject to the exceptions specified therein. But this Act came into force on the 24th December 1953, and as there is nothing in it giving retrospective operation to this definition, the rights of the parties to the present appeal would remain unaffected by it. Act XLIII of 1953 replaced Ordinance No. V of 1953, wherein also retrenchment was defined as induding, subject to exceptions all termination of service; but that also came into force only on the 24th October 1953, whereas the present appeal was filed on 19-8-1953.

On that date, the order of the Tribunal refusing

(1) A.LR. 1952 Mad. 6~9.

(2) [1956] 2 L.L.J. 64.

reinstatement was not open to appeal, and the order of the Appellate Tribunal modifying it would therefore be without jurisdiction and void.

But it is argued for the respondent that an award of the Tribunal refusing reinstatement would be appealable under sect.ion 7(I)(a) if it involved a substantial question of law, and that as the contention of the employees was that the orders dismissing them were bad as having been passed in contravention of the rules of natural justice, that was a question of law on which an appeal was competent. It was further contended that when a question arises whether a Tribunal has jurisdiction over the subject-matter, it must be competent to decide whether the preliminary conditions exist, on which its jurisdiction depends, and its decision on that question is not liable to be attacked in civil courts, and that accordingly the assumption of jurisdiction by the Appellate Tribunalon the footing that there was a substantial question of law was not liable to be questioned by the civil court, and the decisions in Pankaj Kumar Ganguli v.

Bank of lndia(3) and Upper Ganges Electric Employees Union v. Upper Ganges Valley Electricity Supply Go.

Ltd. and another(4) were relied on in support of this contention.

We agree that an order 11efusing reinstatement WO"\lld be open to appeal under section 7(l)(a) if it involved a substantial question of law.

Whether a decision of the Appellate Tribunal that an appeal to it from an award was competent under section 7(1)(a) on the ground that it involved a substantial question of law is final and not open to question in a civil court is a point on which we do not desire to express an opinion, as in the present case, the correctness of that decision is challenged not collaterally or in independent proceedings, such as an application under article 226 of the Constitution 'ts in the two cases relied on for the respondent, but by way of appeal under article 136, and it is open to us to consider as a Court of Appeal whether, in fact, the order of the Tribunal was vitiated by an error of law, and whether the

(1) [1956] 60 O.W.N. G02.

(2) A.I.R. 1956 All. 491. 104

Burn and Co., Calcutta v.

Their Emf!loyees

Venkatarama

Ayyarj.

Bum and Co., Calcutta v.

Their Enifaloyees

Venkatara1na Ayyar J.

order of the Appellate Tribunal modifying it is sound.

We must now consider the case of the four employees from this standpoint:

(1) S. N. Chatterjee had an eye defect, and acting on the advice of its medical officer, the Company discharged him on that ground. The Tribunal has found him to be fit, and directed bis re-employment. He now claims compensation on the ground that be bad produced a certificate of fitness from a competent medical officer but that the Company discharged him without making any enquiry thereon. The Appellate Tribunal found that the Company bad acted bona fide, but that as the order of dismissal was made without due enquiry it was bad, and accordingly awarded compensation at the rate of six months' basic wages.

We are unable to hold that on the facts found the Appellate Tribunal had acted without jurisdiction in jnterfering with the award or that its order is unjust.

No case has been made out for our interference with it under. article 136.

(2) Asbimananda Banerjee was arrested by the Government under the West Bengal Security Act and detained in jail from 25-1-1949 to 5-4-1951. The Company terminated his services on 22-4-1949.

The Tribunal made an order that be should be re-employed, and tba t is not now in question. But he further claims that be is imtitled to be reinstated. The Appellate Tribunal has accepted that claim on the ground that be bad been discharged without the Company framing a charge or holding an enquiry, and that the rules of natural justice had been violated.

We are unable to agree with this decisian.

The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto.

The order of the Appellate Tribunal is manifestly erroneous and must be set aside.

(3) The facts relating to Panchanan Rana are similar to those of Ashimananda Banerjee, and for the reasons already given, the order of the Appellate

...

Tribunal in his favour should be set aside.

(4) The question as regards Joydeb Banerjee is whether he is entitled to compensation on the grol}nd that he had been wrongly discharged. The facts are that on 16-11-1950 a number of employees participated in an assault on the Works Manager, Mr. Davison, and the Company dismissed fourteen of them on that ground, and Joydeb .Banerjee was one of them. The Appellate Tribunal has held that as no charge was framed against him or an enquiry held, his dismissal wa!l in contravention of the rules of natural justice.

It has accordingly ordered that he should be given one year's basic wages with dearness allowance as compensation.

It is true that no charge-sheet was formally drawn up against him, but that would not vitiate the order of dismissal if he knew what the charge against him was and had an opportunity of giving his explanation. It appears from t>l.ie order of the Tribunal that subsequent to the order of dismissal by the Company, there were conciliation proceedings and an enquiry by the Labour Minister, as a result of which he recommended the reinstatement of seven out of the fourteen who had been dismissed, leaving the order in operation as regards the other seven, of whom Joydeb Banerjee was one.

In the face of these facts, it is idle for him to contend that he had been dismissed without hearing or enquiry.

The order of the Appellate Tribunal awarding compensation to him should be set aside.

In the result, Civil Appeal No. 325 of 1955 is allowed, the order of the Appellate Tribunal set aside and that of Shri Banerji restored, except that (1) the minimum pay of the clerical staff will be Rs. 65 per mensem with modifications as to the ceiling level and increments as set out supra and (2) that S. N.

Chatterjee will be reinstated with compensation as provided in the order of the Appellate Tribunal. The

Union will pay half the costs of the appellant throughout.

Civil Appeal No. 174 of 1956 is dismissed, but there will be no order as to costs.

B11r11 and Co.,

Calcutta v.

Their Employees

Ve11katarama

AyyarJ.

BURN & CO., CALCUTTA

THEIR EMPLOYEES

BHAGWATI

s. K. DAS

GovINDA MENON JJ.

s. 19(6)

s. 7( 1)( a)

Art. 186

s. 19(6)

Industrial Disputes Act

s. 11

the Code of Civil Procedure

L.R. 43 I.A. 91

s. 19(6)

Calcutta

sections 1

s. 7(l)(a)

Art. 136

Supreme Court

CIVIL APPELLATE JURISDICTION

M. G. Setalvad

B.

Sen

S. N. Mukherji

B. N. Ghosh

N. G. Ghatterji

A. K. Dutt

B. P. Maheshwari

Howrah Iron Works

Government of West Bengal

First Industrial Tribunal

S. N.

Chatterjee

Ashimananda Banerjee

Panchanan Rana

Joydeb Banerjee

Banerji

Shambunath Chatterjee

Venkatarama AyyarJ.

Bengal Chamber of Commerce

West Bengal

Palit

Palit

Bengal Chamber of Com- . merce

section 19(3)

Disputes Act XIV of 1947

section 19(6)

Akroyd

Section 19(4)

section 19(3)

section 19(6)

section 11

Vide Broom

Lawrence Jenkins

section 19(6)

L.R. 43 I.A. 91

Burn and Co., Calcutta

Sbri Palit

Mercantile Tribunal

Bose

Sen

Banerii

S. N. Chatterjee

J oydeb Banerjee

Burn and Co.,

Calcutta

section 7

section 7(l)(b)

section 7(l)(b)

section 7(i)(b)

section 2(oo)

section 7(1)(b)(vii)

24th December 1953

24th October 1953

section 7(l)(a)

section 7(1)(a)

article 226

article 136

Venkatara1na Ayyar

article 136

Davison

Joydeb .Banerjee