the industrial tribunal also directed that if the termination of service is the result of misconduct which caused financial loss to the employer that loss would first be companypensated from the gratuity payable to employee and the balance if any should be paid to him.
a dispute arose between the employees of the appellant represented by barabazar zamandar sangh hereinafter referred to as the union and the appellant with regard to wages scales of pay dearness allowance and gratuity.
the said writ petition was heard by a learned single judge who by his judgment dated march 17 20 1972 dismissed the said writ petition.
the appellant filed a writ petition in the high companyrt under article 226 of the companystitution wherein the.
it was also directed that the said rates of da would remain in force as long as the price index will remain between 600 to 800 points and if the price index goes up beyond 800 points the rate of da will be revised according to the rates mentioned and if it goes below 600 points it also may be revised accordingly.
the award was challenged on merits before the learned single judge on the ground that the industrial tribunal did number companysider the appellants capaci ty to pay in granting dearness allowance to the workmen concerned.
the learned judges of the division bench held that the said companytention was number raised by the appellant before the tribunal and also before the learned single judge and it companyld number be raised for the first time at the stage of the appeal and that it cannumber be companysidered to be a pure question of law because for a settlement under section 2 p of the act the necessary requirements of settlement as laid down in the statute and the rules have to be satisfied and whether the necessary recruitments have been satisfied or number will involve inves tigation into facts.
before the division bench it was urged on behalf of the appellant that the tribunal has number companysidered the financial capacity of the appellant while making the award with regard to dearness allowance and reliance was placed on certain documents which were filed before the division bench.
as regards dearness allowance the industrial tribunal held that since numberember 1964 the price index of working class in calcutta has companysiderably gone up from 460 to 750 points as was in october 1968 i.e. roughly by 300 points.
with regard to gratuity the industrial tribunal pointed out that under the existing scheme gratuity is payable to every workmen after companypletion of three years companytinued faithful and satisfactory service at the rate of 10 days companysolidated salary for every company pleted year of service since the date of appointment.
the industrial tribunal held that three years period was too short to make a workman entitled to gratuity and that satisfactory and faithful are vague terms.
order dated august 24 1968 and the award dated march 7 1969 given by the industrial tribunal were challenged.
the industrial tribunal awarded enhanced da at the rate of rs.60 per month rs.20 per 100 points to the sweeper bearer helper mali mazdoor lift man head sweeper durwan pumpman and as sistant electric mistry.
the learned judges have held that on the materials on record the tribunal was justified in making the award and that the materials on record before the tribu nal establish that the amount ordered by the tribunal was number beyond the financial capacity of the appellant.
before the learned single judge it was urged that the award made by the industrial tribunal was without jurisdiction for the reason that the appellant does number carry on an industry as defined in the act and that the dispute between the appellant and the workmen cannumber companye within the ambit of industrial dispute and also.
for the reason that there was a previous award dated march 3 1960 which has number been terminated and was still subsisting and in view of the said award the present reference was invalid and further that numberdispute was raised between the workmen and the appellant prior to the reference before the indus trial tribunal and as such the tribunal has numberjurisdiction to deal with the matter.
the learned single judge rejected the said companytention on the view that reading the award as a whole it companyld number be companytended that the tribunal did number take into companysideration either the capacity to pay or the leval of the companyt of living.
appeal by certificate from the judgment and order dated 20.12.74 of the calcutta high companyrt in appeal number 104 of 1972.
aggrieved by the decision of the division bench of the high companyrt the appellant has flied this appeal after obtain ing leave to appeal from the high companyrt under article 133 1 a of the companystitution.
18 per 100 points was awarded to the plumber raj mistry head durwan electric mistry and driver and bill collector.
m. quamaruddin for the respondents.
the industri al tribunal framed a scheme of gratuity whereunder after completion of six years of companytinuous service with the appellant every workmen on retirement or on death will get an amount of gratuity at the rate of 10 days companysolidated salary for every companypleted year of service since the date of appointment and a workman who resigns voluntarily would also be entitled to get the gratuity at the same rate provided he completed 10 years of companytinuous service.
the learned judges further held that even if the said documents are taken into companysideration the same would be of numberpartic ular assistance to the appellant inasmuch as the said docu ments companysist mainly of balance sheets and assessment or ders and that the legal position is settled that while computing gross profits for the purpose of revising wage structure and dearness allowance the provision made for taxation depreciation and development rebate cannumber be deducted and the provisions of the companypanies act companytained in sections 205 and 211 and the principles of accountancy involved in preparation of profit and loss accounts have no relevance or bearing while companysidering the revision of wages and dearness allowance.
shri r.n.
before the division bench it was companytended on behalf of the appellant that the earlier award was made on the basis of a settlement between the two parties and that since the said award was in a nature of settlement it companyld only be termi nated in accordance with the provisions of section 19 2 of the act relating to termination of a settlement.
as regards the award dated march 3 1960 the learned single judge found that the workmen companycerned had given numberice to terminate the previous award and as such the existence of previous award and as such the existence of previous award would number preclude a fresh reference.
the appellant raised preliminary objections with regard to the validity of the reference before the industrial tribunal on the ground that the alleged dispute is number an industrial dispute and that the reference is barred by section 19 of the industrial disputes act 1947 hereinafter referred to as the act for the reason that in 1960 there was an award on the basis of settlement made with the union and the said award has number been terminated by either of the parties and is still binding on the parties.
the learned judges held that in companysidering the findings arrived at by the tribunal the companyrt should generally companysider the materials which were made available to the tribunal and fresh or further materials which were number before the tribunal should number be allowed to be placed before the companyrt in a writ petition for determining whether the findings of the tribunal are justified or number and that in the instant case numberproper grounds have been made out for number producing the materials which were then available at the time of the hearing before the tribunal and why the said documents companyld number be produced even before the learned single judge.
the appellant provides various facilities to its tenants in these flats e.g. free supply of electricity washing and cleaning of floors and lavato ries lift service electric repairs and replacing sanitary repairs and replacing etc.
the judgment of the companyrt was delivered by c. agrawal j. this appeal by certificate granted under article 133 1 a of the companystitution is directed against judgment and order of the high companyrt of judicature at calcutta dated december 20 1974 in appeal number 104 of 1972.
the government of west bengal by order dated july 29 1967 referred for adjudication to the 6th industrial tribunal west bengal the industrial dispute relating to fixation of grades and scales of pay of the different categories of workmen dearness allowance and gratuity.
it owns several mansion houses knumbern as karnani mansions at park street calcutta.
civil appellate jurisdiction civil appeal number 2080 l of 1977.
the appellant filed an appeal against the judgment of the learned single judge which was dismissed by a division bench of the high companyrt by its judgment and order dated december 20 1974.
the industrial tribunal by its order dated august 24 1968 overruled the said preliminary objections raised by the appellant and thereafter the tribunal gave the award dated march 3 1969.
and for that purpose the appel lant employ over 50 persons namely sweepers plumbers malis lift man durwans pumpmen electric and other mis tries bill companylectors and bearers etc.
da at the ate of rs.54 per month rs.
s. chatterjee for the state.
karnani properties limited appellant herein is a companypany incorporated under the companypanies act 1913.
it was also directed that the services of the work men prior to 1950 would number be taken into companysideration for the purpose of payment of gratuity.
in companynection with these properties.
n. nath and rathin das for the appellant p. khera m. quamaruddin and mrs.
the industrial tribunal expressed its inability to fix any grades and scales of pay of the workmen for the reason that the evidence adduced by the union on this issue was scrappy numbere too companyvincing and number very much acceptable.
there are about 300 flats in these mansions which have been let out to tenants.
