PARLE PRODUCTS (P) LTD.

J. P. & CO. MYSORE

January 28, 1972

[C. A. VAIDIALINGAM, I. D. DUA AND G. K. MITTER, JI.]

Trade and Merchandise Marks Act, 1958, s. 2(d)-'Deceptivel.v si111i/ar'-Proper approach by court for deter111ining if one 1nark is deceptirely sin1ilar to another.

The appellants filed a suit for an injunction restraining the respondents from infringing their registered trade mark used on packets of bi>cliits manufactured by them.. The suit was dismissed by the trial. court and the High Court.

Allowing the appeal to this Court,

HELD: (I) Under the Trade and Merchandise Marks Act, 1958, a registe'red trade mark is infringed by a person who uses, in the course of trade, a mark which is identical with or deceptively similar to, the trade mark, in relation to any oodS in respect of which the trade mark is registered; and the expression 'deceptively similar' means a mark which so nearly resembles another mark as likely to deceive or cau~ confusion.

Jn order to come to the conclusion whether one mark is deceptively similar to another the broad end essenti(ll features of the two arc to be considered. . They should not be plaed side by side to find out if there are any dif!erenc~ in the design, and if so, whether they a~ of such character as to prevent one d .. ign from being mistaken for the other. Jt would be enough if the. impugned mark bears such on overall .similarity to the registered mark as would be likely to mislead a person usually doaling with one to accept the othe'r if offered to him. [292 B-D; 294 DFJ

In this case, the packets of biscuits manufactured by ihe appellants and respondents were practically of the same size, the colour scheme of tho two wrappers was almost the same, and the designs on both, though not identical, bore such a close resemblance that one ci:>uld easily be mistaken for the other. If one was not careful enough to note the peculiar featurea of the wrapper on the phintiffs' goods, he might easily mistake the Jefendants' wrapper for the plaintiffs' if shown to him some time after he had seen the plaintiffs' wrapper. Though the trial court and the High . Court had concurrently lound that the defendants' wrapper was not deceptively similar to thot of the plaintiffs, the finding must be set aside as it 11'0s not arrived at on a proper consideration of the Jaw. [294 F-Hl

Durga Dutt v. Navaratna Laboratori<S L196S] I S C.R. 737 followod.

Karly's Law of Trade Marks and Trade Names, 9th ed. para 338 referrid to.

C1VIL APPELLATE JURISDICTION: C.A. No. 1051 of 1967.

Appeal by special leave from the judgment and decree dated July 5, 1966 of the Mysore High Court in Regular First Appeal No. 170 of 1963.

S. T. Desai and I. N. Shroff, for the appellant.

S. K. Mehta and K. L. Mehta, for the respondent.

The Judent of the Court was delivered by

Mitter, J. This is an appeal by special leave from a judgml\nt of the Mysore High Court confirming the dismissal of a suit for an injunction restraining the respondent from infringing the registered trade mark of the plaintiffs used on packets of biscuits.

The facts are as follows.

The plaiJltiffs-appellants before us are manufacturers of biscuits and confectionery and are owners of certain registered trade marks. One of them is the word "Gluco'' used on their half pound biscuit packets. Another registered trade mark of theirs is a wrapper with its colour scheme, general set up and entire collocation of words registered under the Trade Marks Act 1940 a> No. 9184 of 7th December, 1942.

This wrapper is used in connection with the sale of their biscuits known as "Parle's Gluco Biscuits" printed on the wrapper. The wrapper is of buff colour and depicts a farm yard with a girl in the centre carrying a pail of water and cows and hens around her on the background of a farmyard house and trees. The plaintiffs claim that they have been selling their biscuits on an extensive scale for many years past under the said trade mark which acquired great reputation. and goodwill among the members of the public.

They claimed to have discovered in March 1961 that the defendants were manufacturing, selling and offering for sale biscuits in a wrapper which according to them was deceptively• similar to their registered trade mark. The plaintiffs assert that this act of the defendant constitutes an infringement of their trade mark rights.

As in spite of lawyer's notice the defendants per, sisted in manlifacturing, selling and using the wrappers complained of with regard to their biscuits, the plaintiffs filed the suit claiming injunction as already mentioned.

The defendants pleaded ignorance of the registration of the trade marks claimed by the plaintiffs. They denied that the wrapper used by them in connection with the sale of their biscuits was deceptively similar to the plaintiffs' trade marks as alleged or that they had in any way infringed the trade mark rigl!ts of the plaintiffs.

They .pleaded further th.at there was a good deal of difference in the design of their wrapper from that of the plaintiffs and relied on certain features of their design which were said to be quite dissimilar to those of the plaintiffs' wrapper inasmuch as the defendant's wrapper contained the picture of a girl supporting with one hand a bundle of hay on her head and carrying a sickle and a bundle of food in the other, the cows and hens being unlike

those of the plaintiffs' wrappers. There was also said to be difference in the design of the buildings on the two wrappers and the

words printed on the two wrappers were. distinct and separate.

The trial court meticulously examined the features found on the two wrappers aild the packets of biscuits produced before it and took the view that there were greater points of dissimiiari1y than of similarity between' the two and as such it was unlikely that the defendants, goods could be passed off as and for the goods of the plaintiffs.

After pointing out the distinguishing features of the wrappers; th(l: trial court concluded that there was no chance of a seller committing fraud on a customer and an ordinary pur-' chaser would certainly refuse to purchase the defendants' goods if he was offered them as and for the p!intiffs' goods. Accordingly the trial court held that the plaintiffs had failed lo establish their tase.

Although the High Court held that in such a case it was not necessary for the plaintiffs to adduce evidence that any particular indiv.idual had been deceived by the defendants' wrapper and it wa& undeniable that the general get up of the two wrappers was more or Jess similar, it went on to observe that the courtl!ad to. bear in mind that it was dealing with packets of biscuits which were generally used by people of the upper classes, and a purchaser desirous of getting a packet of Parle biscuits would go and ask for the same as such, in which case there could be no scope for deception; again the plaintiffs could have no cause for :grievance if a purchaser was content to buy any biscuits which were offered to liim by the shopkeeper.

The High Court also took the. view that there were several distinguishing features between the two wrappers and these could be noticed even from a distance.

According to the High Court, the similarity in the two wrappers lay in the facts that l>oth were oartly yellow and partly white. in colour and both bore the delign ol a Wei and some bird~. "But" the High Court said "there the sirnilanty ends.

The lady m the wrapper used by the plaintiff company has a pot on her hand while the lady in the wrapper used by the defendant has a hay-bundle on her head. In fact, they are not identical features: !n, the defendants' wrapper we have got a cow and m t?e plamtiffs wrapper we have got two calves.

The upper portion of the defendants wrapper is not similar to that of the plaintiffs' wrapper." 'the Righ Court went on to comment:

 "It is true that in a passing off action, one is not to look to minor details but must take into c'onsideration the broad features. Even if we take the broad features ef the two wrappers into consideration we do not think ithat they Jlre similar. At any rate, they are not so sirni tar 11s to deceive an ordinary purchaser of biscuits."

With due respect to the learned Judges of the High Court, we are constrain¢ to.remark that they fell into an error. The plain(iffs' marks were registered under the Trade Marks Act, 1940 which was however repealed by s. 136 of the. Trade and Merchandise Marks Act, 1958. Under sub-s. (2) of the said section any registration under the Act of 1940 if in force at the commencement of the Act of 1958 was to continue in force and have effect as if made, issued and given under the corresponding provisions of the Act of 1958. Under s. 21(1) of the Ac.t of 1940 the registration of a person iii the register as proprietor of a trade mark in respect of any goods gave to. that person the exclusive right to the use of the Trade mark in relation to those goods and that right was to be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitt.ed use, used a mark identical with it or so narly resembling it as to be likely to deceive or cause 9onfusion, in the course of trade, in relation to any goods in respect of which it was registered.

Under s. 28(1) of the Trade and Merc1_1andise Marks Act, 1958 the registration of a trade mark in Part A or Part B of the register gave to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark was registered and to obtain relief in respect of the infringement of the trade mark in the manner provided by the Act.

Under s. 29(1) :

"A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of a 'trade a mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark."

The expression '.'deceptively similar" has now been defined under s. 2(d) of..the Act of 1958 thus:

"A mark shall. be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to <!eceive or cause col'lfusion;"

It is 1IO be noted .that although there was no such provision in the definition section of the Act of 1940 s. 21 ( 1 )' of the said Act was to the same effect.

The Indian Trade Marks Act of 1940 was based on the English Trade Marks Act, 19 3 8 and s. 21 of the Act of 1940 was more or less similar to s. 4 of the English Act of 1938. ·

To decide the question as to whether the plaintiffs' right to a trade mark has been infringed in a particular case, the approach must not be that in an action for passing off goods of the defendant as and for those of the plaintiff. According to this, Court in Durga Dutt v. Navaratna Laboratories( 1):

"While an action for passing off is a Common Law remedy being in subs\allce an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not.the gist of an action for infringement.

The act; ion for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (vide s. 21 of the Act). The use by the defendant\ of the trade mark of the plantiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement."

In the above case the <::ourt further pointed out :

"In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where tlhe similarity between the plaintiff's and the defendant's mark ls so close either visually, phonetically or otherwise and tho court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated.

Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or 1narks on the goods or on the packets in which he offers his gooas for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor __ oJ the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff."

According to Karly's Law of Trade Marks and Trade (9th edition paragraph 838) :

"Two marks,_ "".hen placed side by side, may exhibit many and various differences vet the main idea left on H the mind by both may be the same. A penen acquainted with one mark, and not having the. two side by side

(I) [1965] I S.C'.R. 737. 754 0

for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted.

Thus, for exampLe, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football.

It would be too much to expect thiit persons de.aling

with trade-marked goods, and relying, as they frequently do, uµon marks, should be able to remember th.e exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made. by the owners of the trade mark they are already acquainted with for reasons of their own."

It is .therefore clear that in order to come to the conclusion whether one mark is. deceptively similar to another, the broad and essential features of the t:wo are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one desi2n from hein2 mistaken for the other.

It would be enough if the impugned mark bears such an overall .similarity to the regiStered mark ils would be likely to mislead a person usually dealing with one to accept the other if offered to him:. In this case we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a Close resemblance that one can easily be mistaken for the other.

The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foregi'ound. In the background there is a farm house with a fence.

The word "Gluco Biscuits" in· one and "Glucose Biscuits" on the other occupy a prominent place at the top with a good deal of similarity between the. two writings.

Anyone in our opinion who has a look at one of the packets to-day may easily mistake the other if shown on another dav as being the same article which he had seett before. U one was not careful enough to note the peculiar features of the wrapper on the plaintiffs' goods. he might easilv mistake the def Pndants' wrapper for the plaintiffs' if shown to him some time after he had seen the -

plaintiffs'.

After_all, an ordinary l'\Jrc_haser is not gifted with

the powers of observation of a Sherlock Holmes.

We have therefore no doubt that the defendants' wrapper is deceptively similar to the plaintiffs' which was registered.

We do llot think it necessary 1to refer to tl!e decisions referred to at the Bar as in our view each case will have to be judged on its own features and it would be of no use to note on how many points there. was similarity and in how many others there was absence of it.

It was arued before us th.wt as both the trial court and the High Court had come to the same conclusion namely, that the defendants', wrapper was not deceptively similar to the plaintiffs', the finding is one of fact which should not be disturbed by this .

Court.

Normally, no doubt this Court does not disturb a concurrent finding of fact.

But where, as here, we find that the finding was arrived at not 011 proper consideration of the law on the subject it js our duty to set the same aside on appeal.

In the result, we hold tha~ the defendant had infringed the . registered trade. mark of the. plaintifl and the suit of the plaintiff should be decreed and -an injunction granted restraining the defendant-respondent from selling or using il1 any manner what• soever biscuits in wrappers similar in appearance to the registered trade mark of the pbintiffs on their packets.

The appellants will be entitled to their costs throughout.

V.P.S.

Appeal allo\ved.

PARLE PRODUCTS (P) LTD

J. P. & CO. MYSORE

January 28, 1972

I. D. DUA

G. K. MITTER

Trade and Merchandise Marks Act, 1958

s. 2(d)

Trade and Merchandise Marks Act, 1958

Karly

Mysore High Court

S. T. Desai

I. N. Shroff

S. K. Mehta

K. L. Mehta

Mitter

Trade Marks Act 1940

7th December, 1942

Trade Marks Act, 1940

s. 136

Trade and Merchandise Marks Act, 1958

s. 21(1)

s. 28(1)

Marks Act, 1958

s. 29(1)

s. 2(d)

s. 21

Trade Marks Act

Trade Marks Act

s. 21

s. 4

s. 21


JAIPUR UDYOG LTD.

CEMENT WORK

1KARMACHARI SANGH, SAHU

NAGAR.

Ja11uary 28, 1972

[C. A. VAIDIALINGAM, I. D. DUA AND G. K. MITTER, JJ.]

. Industrial Disputes Act-S. 10(1) (d)-Tribunal cannot go beyond the scope of reference.

The appellant, a public Limited Company, had a Cement Factory and at '3. distance, :; i. limestone quarry.

It had two standing orders for the workman employed in the factoiry and in the quarries.

Upto April, 1967, both sets of standing orders provided fo< superannuation of the workmen at the age of 55 with a stipulation for extension upto 60 years if a workman was found fit to work. After a dispute at the Cement Factory, a settlement was arrived at by which it was agreed that the standing order applicable to the Cement Factory be amended by raising the age of superannuation from 55 t..:> 58 without making any provision for further exten~ sion S.nd accordingly, the amendment was made. Nothing was, however, done with regard to the superannuation age of the employees at the quarry.

On April 3, 1968, the appellant intimated the incline driver at the quarry that he had reached the age of retirement on 3-4-68 and accord ingly he was given notice of retirement in terms of the standing order.

On April 30, 1968, the said workman wrote to the appellant that altbou&h service records showed him to be SS yean of age, his proper aao accord ing to his borOICOpe, was about SO yean and so his service record• ahould be amended accordingly, but the appellant refuaed.

The Union took up the cause of the worker and requested the Regional Labour Commilllioner to put the worker back to work .. On a reference under S. 10(1) (d) of the Industrial Disputes Act, the Triblinal took the view that the Cement Factory and the quarries were two units of the same eotablishment and so, there should be a uniform set of rules for the wo<kmeri of the Company as a whole.

In the result, the Tribunal held that there could not be a lower age limit of superannuation for workmen at the quarry specially in view of the fact that workmen were admittedly transferred from one unit to the other. As a consequence, the Tribunal quashed lhe order of dismissal and direcied the reinstatement of the workman with full back wages.

It was contended by the Company before this Court that the TribuD:ll was wrong 'in construing tho order of reference to include a dispute as to whether it was open to the C.Ompany to have two sets of standing G orders providing for different ages of superannuation.

According to the appellant, the dispute between the parties w:is whether or not the Company was justified in Coming to the conclusion that the workman con cemed had reached the age of 55 on April 3, 1968, and as such, was to be superannuated in terms of the standing orders.

Setting aside the award,

HELD : Tbe Tribunal had not taken care to examine what was the H dispute between the parties when the government made the order of reference.

No dispute was ever aised either by the workman or the Union that the age of superannuation governing the _workman was not

JAI~UR UDYOG LTD. V. CEMENT KARMACHARI SANGH 297 (Mitter, J.) 55 years. The finding of the Tribunal that !he Company could not fix. a lower age limit of superannuation for the workman at the qU'lI'ries wentbeyond the scope of reference.

The Tribunal never addressed itself to the point of view of the workman that his proper age was anly 50 and not 55; nor did it come to a finding that the true age of the workman:· being 50 years in 1968, there was no question of his superannuation in 1hot year. [302 CJ

The Sindhu Rese1tlement Corporation Lu/. vs. The Industrial Tribunal,.

G11jarat & Ors. [1968] I S.C.R. 515 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1166 of 1971.

Appeal by special leave from the Award dated December 19, 1970 of the CentralGovernment Industrial Tribunal, Jaipur in Case No. CI'l:'-10 of 1968.

M, C. Setalvad, K. K. Jain, C. N. Sharma, C. S. Patel and Bishamber Lal, for the appellant.

M. K. Ramamurthi and J. Ramamurthi, for the respondent.

The Judgment of the Court was delivered by ·

Mitter, J, This is an appeal by special leave from an award of the Central Government Industrial Tribunal, Rajasthan directing the reinstatement of one Bhisham Verma in the service of t..'ie

appellant with full back wages. ·

The_ facts are as foliows.

The appellant is a public limited company with its registered office at Sawaimadhopur in the State of Raiasthan. It has a cement factory at the said place besides a limestone quarry at Phallodi situiite at a distance of 24 kms. from

the cement fa_ctory.

It has two separate sets of Standing Order> for the workmen employed in the factory and in the quarries.

Bath sets of Standing Orders were certified in accordance with the provisions of the Industrial Employment (Standing Orders) Ac!,

1946. The Standing Orders applicable to the workmen employed in the factory were certified in the year 1954 while those applicable to the workmen of the quarries were certified in the year 1961.

Up to April 1967 both sets of Standing Orders provided for superannuation of the workmen at the age of 55 with a stipulation for extension up to 60 years if a workman was found fit to work.

On a dispute having been raised for the raising of the age of 8uperannuati0n of the workmen at the cement factory, a settlement was arrived at between the appellant and the respondent (a

reltitered trade union of the employees) on 16th December 1966 whe-reby it was agreed that Standinp; Order No. 21 applicable to the. cement factory be amended by raising the age of superannuation.from 55 to 58 years without making any provisfon for further

extension. A joint application following upon the agreerMnt was moved by the appellant and !he respondent for modifying the

Standing Order No. 21 with respect to the age of superannuation which was accordingly done. Nothing was however done with regard to the age of superannuation of the employees at !he quarry. the relevant clause in 'the Standing Order remaining unaltered.

On April 3, 1968 the appellant intimated the said Bhishan1 Va/.;; ia, incline driver a!. the quarry, that he "had exceeded the age of retirement on 3-4-1968" and as such he was given "notice of retirement in accordance with clause 21 of the Standing Orders of the quarries With effect from the close of work on 2-5-1968". On April 30, 1968 the said wortanan wrote to !he appellant that although according to the service file he had completed 1the age of 55 years as indicated, his proper age according to his horoscope was about 50 years and his service record should be amended accordingly.

The appellants' reply to the above dated July 9, 1968 was !o the effect that his case had been re-examined and that his retirement, as already intimated on 3-4-1968 would stand.

The Union took up the cause of the worker and addressed a letter on July 18, 1968 to 1he Regional Labour Commissioner requesting that arrangemen!s may .be made to put the worker back to work and take proper legal proceedings. On behalf of the workman it was represented that he had been working in the company sine" October 11, 1957, that the Personnel Manager of the quarry had given orders dismissing him from service on April 3, 1968 and tha! in spite of objections made by the workman thai there was a mistake in the papers of the company with regard to his age which was 50 as supported bv his horoscope and doctor's certificate, the action of the quarry manager was illegal and contrary to service con!ract. The record does not show what if any other steps were taken by the parties when the Central Government made an order of reference under s. 10 (1 )( d) of the Industrial Disputes Act reading :

"Whether the action of th;;1 management of !he Jaipur Udyog Limited, P.O. Phallodi Quarry, Sawaimadhopur in terminating the services of Bhisham Varma, incline driver, with effect from 9th July 1968, on l(roUnds of superannuation was legal and justified ? If not to what relief is he entiled ?

Before the Tribunal, the respondent Union filed a sttitement

of claim wherein after reciting the action taken by the appellant and, the represen!atioh made by the workman it was stated that H the quarry and the cement factory were under one and the same management and there was complete financial integrality between 'the activities of !he company at both the places. It was also'said

JAIPUR UDYOG LTD. V. CEMENT KARMACHAR! SANGH 299 (Mitter,/.) that workmen could be transferred from one place to another and that a& a result of the settlement mentioned, the company could not retire any workman before he al'lained the age of 58 years.

The settlement was said to apply to the workmen employed at both the places. The Union further submitted that tile company could not ilJliist on two sets of conditions of service covering different sections of the same workmen in tile same establishment, that the age of retirement was no! a subject mentioned in the Schedule to the Industrial Employment (Standing Orders) Aot and as such no Standing Order could be Cl'.rtified on this topic.

In its reply to !he above, the company took the stand that the settlement ~!!)ved at in respect of the cement works Karmachari Sangh, Sawai Madhopur was not ipso facto 1 applicable ito the quarry inasmuch as the proper authority under the Industrial Disputes Act 1947 in respect of the cement works was the Government of Rajasthan whereas the appropriate Government in respect of the quanies was the Government of India. It was said further that in pursuance of the settlement anived alt in 1966 the Standing Orders were amended by the Certifying Officer of the Government of Rajasthan as a result whereof the age of superannuR'tion in the works at Sawai Madhopur was raised to 58. This however did not alter or modify the position prevailing in the quar1ies which were governed by a separate set of orders certified by , the Certifying Officer of !he Government of India.

The Tribunal took the view that th~ cement factory and the quarries were two units of the same .establishment and that consequeny there should be a uniform set of rules for the workmen of the company as a whole and it was immaterial that in the case of one unit the Standing Orders had to. be certified by the Certifying Officer of the Government of India and in the other by the Officer

appointed by !he Government of Rajasthan. The Tribunal was further of ihe view that the clause as to superannuation could net

be provided in the Standing Orders under the relevant Act and certification could not attach enforceability to them even on the ground that t!Je workers did not challenge such provision before the Certifying Officer. In the result the Tribunal held that there

oould not be a lower age limit of superannuation for workmen at the Phallodi Quarry specially in view of the fact that workmen were admittedly transferable from one place to the other. As a consequence of the above finding, the Tribunal quashed the order and directed the reinstatement of the workman with foll back wages.

On behalf of the company the first contention raised by Mr.

Setalvad was .that the Tribunal had gone wron11: in construii; ig the order of reference to include a dispute as to whether it was open to the company to have two sets of Standing Orders providing for

.. different ages of superannuation. Mr. Setalvad argued that in A view of the co;:respondence terminating with ithe representation bv the Union to the Conciliation Officer, it was abundantly clear that the dispute between the parties was whether or not the company was

justified in coming to the conclusion '.hat the workman concerned had reached the aw~ of 55 on April 3, 1968 and as such was to be superannuated in terms of the Standing Orders. The Jetter of the B 9th July 1968 by the Company to the workman reads :5 follows :-

"Pl, J!~Se re.fer to your applic<ttion dated 30-4-1968

receiv.~ by us on 8-5-1968 along with a copy of your horoscope in Hindi. The Management has re-examined your case and come to a final conclusion that your re- C tirement from the service of the company as intimated to you vide our memo No. PQIB/186 dated 3-4-68 should stand. You are, therefore, directed to collect your dues, if any, from our Accounts Department on any working day after producing necessary clearance certificate."

Of necessity, reference had to be made by the Tribunal to tile D application of the workman dated April 30, 1968 with a copy uf his horoscope.

The said latler expressly complained of 1i1e alleged inacc11racy in the service record pertaining to him according to which the writer had not completed the age of 55 year< (HI the 3rd April.

The workman's representation was that his age had been ina.ccurately recorded, •that his proper age was 50 ; rnd E that the records should be correted accordingly.

In our view, if the Tribunal had taken care •to examir.1" "h.it was the dispute between the parties when the Government made the order of reference it would have had no difficulty in realising that no dispute was raised either by the workman or the Union that the age of sup, rannuation governing , the workman was not 55 years. It was certainly open to the workman to contend that hi>

ae of superannuation should b~ fixed at 58 and not 55 years anJ it would have been equally open to the Union to raise the point

in their represen•ta1ion to the Conciliation Officer.

Tf that had been done, the Government of .Rajasthan could have properly made a reference of a dispute between the parties regarding the G correct age of superannuation and the adjudication of the disputi: regarding the superannuaition of the workman concerned on that basis. Nothing was however shown to us, apart from the d0cuments already referred to, to enable us to find that any qu.estion had been raised before the Government of Rajasthan relating to the age of superannuation of the workmen at the quarries or that there was any basis for apprehensi0n of such a dispute and 'it was therefore not open ito the Tribunal to enlarge the ambit of the dispute between the parties by reference to the difference in the

': : A

JAIPUR UDYOG LTD. V. CEMENT KARMACHARI SANGH 301 (Mitter, J.) age of superannuation under tho two sets of Standing Orders. Mr

Setalvad drew our aVtemion to the judgment of this Court in The Sindhu Resettlement Corporation Ltd. v. The Industrial Tribunal of Gujarat & ()rs. ( 1) for the proposition that unless a dispute was raised by the workman with their employer it could not become an industrial dispute.

Respondent No. 3 before this Court in that case was employed 'by the appellant as an accounts Clerk at Gandhidham in the year 1950. Some years thereafter his services

were placed at the disposal of the subsidiary company of the appellant.

The respondent was appointed in the said subsidiary company on a different set of conditions of service. He worked with that CQllUlany up to February 1958 when his services were terminated after payment of retrenchment compenslltion and other dues by the sajd su.bsidiary company. The respondent then went to the appellant and requested that he might be given posting orders. The appellant declined lo do so on the ground that the post which he was occupyin.e; in 1953 had been permanently filled up. Thereupon the respondent demanded retrenchment compensation from the appellant also. As the representations of the respondent were not fruitful, conciliation proceedings were started and ultimately,. on the report of the Conciliation Officer, the State of Gujarat referred the dispute to the Industrial Tribunal.. The

matter referr~ for adjudication was, "whether the said resp0ndent

should be reinstated in the service of the appellant an<;! be paid back wages from 21st February, 1958." The Tribunal directed reinstatement and payment of back wages. In allowing the appeal. this Court observed that the respondent workman had only asked for payment of retrenchment compensation and /did not raise any dispute for reinstatement. According to this Court (si; e p. 522) :-

" .... the evidence produced clearly showed that no such dispute (i.e. relating to reinstatement) had ever n raj_scd by the respondent with the management of the appellant. If no dispute at all was raised by the respondents with the management, any request sent by them , to the Government would only be a aemand by them and no_t an industrial dispute betwu them and their

employer."

Relying on the above decision Mr. Setalvad argued ithat in order that a reference can be construed to embrace a particular dispute it must be shown that a demand had be>n made by the workman and not accepted by the employers so as to give rise to a dispute which in the view of the Government required adjudication. Mr.

Ramamurty on behalf of the respondents drew our attention 'to the provisions of s. 10 (1) of the InduS'trial Dispmes Act and in particular to clauses (c) and (d) thereof. He argued that it was open to !he appropriate Government in an appropriate case to

(l) [l968J 1. s.c.R. s1s.

refer a dispute alOnl!; with any martter appearing to be connected with or relevant to the dispute and no objection could be taken to the award of a Tribunal where the Tribunal had not transgressed the limits of els. ( c) and ( d) of s. 10 ( 1 ) of the Aot. It was further contended that the proper age of superannuation applica r 1 ,

to the comPal\Y as a whole was so intimately connected with or relevant to the dispute which actually arose between the parties prior to the order of r.; oference as to lead us to hold that the Tribunal had not gone beyond its jurisdiction in construing the order of reference to embrace an adjudication as -to proper age of superannuation of a workman like Bhisham Verma. In our view, the finding of the Tribunal that the Company could not fix a lower age limit of superannuation for workmen at the quarries went beyond the scope of reference which had to be gathered from the circumstances preceding the Government Order. The Tribunal

ne'•r addressed itself to !he paint of view of the workman that his proper age was only 50 and not 55; nor did it come to a findinl!; that the true age of the workman being 50 years in 1968 there was no question of his superannuatio11 in that year.

Mr. Setl!lvad raised a further point that so Jong as the quarries had a different set of Standing Orders prescribing a different age of superannuation from ithat fixed under the Standing Orders relating to the ement works, the tribunal could no! have disregarded the Standing Orders as it had purported to do and lay down that the age of superannuation of all workmen should be 58 as found by it. Our attention was drawn to s. 2(g) of the Industrial En1ployment (Standing Orders) Act and to s. 3(2) of the said Act under which provision had to be made in Standing Orders for all m:itters set out in the Schedule to the Ac!. According to Mr.

Setalvad, item 8 of the Schedule reading :

"Termination of employment, and the notice thereof to~ given by employer and workmen." allowed !he framing of Standing Orders with regard to age of superannuation. Mr. Ramamurty on the ather hand contended that this item could not possibly embrace such a matter as the age of superannuation but was limited !o voluntary aots of the employer or tl!_e workmen to put an end to the employment without any question of suir.rannuation.

Arguments were advanced at some length by counsel on ei!her side on this point, but in . the view which we have taken on the first point as to the jurisdiction gf the TribUJlal, we find it unnecessary to decide this point.

In the result we hold tha! the award of the Tribunal was incompetent as the dispute which it sought to adjudicate upon was not the one referred. The award will therefore be set aside, but in the circums!ances of the case, we make no order as to costs.

S.C.

Award set aside.

JAIPUR UDYOG LTD

CEMENT WORK KARMACHARI SANGH, SAHU NAGAR

Ja11uary 28, 1972

I. D. DUA

G. K. MITTER, JJ.

Industrial Disputes Act

S. 10(1)

April 3, 1968

April 30, 1968

S. 10(1)

Industrial Disputes Act

C. Setalvad

K. K. Jain

C. N. Sharma

C. S. Patel

Bishamber Lal

M. K. Ramamurthi

J. Ramamurthi

Mitter

Bhisham Verma

Sawaimadhopur

Raiasthan

16th December 1966

clause 21

9, 1968

July 18, 1968

October 11, 1957

Central Government

s. 10

Industrial Disputes Act

Bhisham Varma

Sawai Madhopur

Industrial Disputes Act 1947

Government of Rajasthan

Government of India

Setalvad

Government of .Rajasthan

Gandhidham

State of Gujarat

21st February, 1958

Ramamurty

s. 10

s. 10

Bhisham Verma

Setl!lvad

s. 2(g)

s. 3(2)

Setalvad