The Kirloskar Oil Engines Ltd., Kirkee, Poona v. The Workmen and Others

Gajmdragadfor J, leave with wages for a number of days calculated

at the rate of one day for every twenty days of work performed by an adult workor in the previous calendar year, or at the rate of one day for every fifteen days work performed by a child. Tho tribu-nal observed that it was not the intention of the award to depart from the basic principle prescribed by s. 79; and so it made the necessary clarification by adding that in order to entitle him to the privi-lege as directed by the awi>rd evP.ry workman must put in 240 days or more of actual working during the previous calendar year. Thus, in rogard to the provision made by the award as to privilege leave the clarification claimed by tlie appellant I was made.

In regard to the second point on which clari- .fication was sought the relevant direction in the nward r<'.ads thus :

"At present if a workman works on a weekly off or on a holiday, he gets a substituted holiday undt1r the Factories Act but no additional pa~·mcnt. In my opinion a workman makes plans well in advance about spending his holidays. H<, spends his time in the company of his colleagues and refrcsheR himself. If he gets a substituted holiday, he is deprived of his enjoyment. He Rhould therefore be compen· sated in money as well as by a day off. I th<>refore direct that if a workman has to work on a weekly off or on a holiday (paid or unpaid) ho should be paid I~ times his wages and dearness allowanco over and above 1 substituted holiday."

The appellant urged before the tribunal that this 1961 direction needed to be clarified because as it stood The Kirlo1kar Oil it was likely to impose on the app'llla'lt very Engines Ltd,, heavy financial burden. The trihunll held that the Kirkee, Poona v. direction itself was very clear and th:i.t under TJ.e ft'orl.:men the guise of clarification the appellant was seek-Gajendragat/l:;ar J. ing its modification. So the tribunal rejected tho appellant's claim for any clarification in that behalf.

In the present appeal the learned Attorney-General attempted to argue that the aocnmulation of privilege leave up to 45 days allowed by the award was not justified. Tn our opinion, this argu-ment cannot be entertained in the present appeal for two reasons. First, no such plea appears to have been made before the tribunal in the present clarification proceedings and so the appellant can-not be allowed to raise a new plea now. Be~ides, it is neoessesary to bear in mind the limitations of the enquiry permitted under the proceedings con-templated by s. 36A of the Act. The said section empowers the appropriate Government to refer any question to the tribunal if the said Government is s-ttisfied that any diffiiculty or doubt arises as to the interpretation of any provision of an award made by the said tribunal. It further pro-vides that when such a question is refer-red to it the tribunal shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such p'Lrties. It is thus clear that the scope of the enquiry under s. 36A is limited to the decision of the difficulties or doubts ariRing as to the interpreta-tion of any provision in the award. If the words used in any provision of an award are ambiguous or obs-cure and it is not reasonably possible to inter-pret them the diffieulty arising from the use of such ambiguous or obscure words may be resolved by moving the appropriate Government to make a roforencc under s. 36A. It is obvious

1961 that any question about the propriety, oorreotness Tiu Kvto.i.., Oil or vali<lity of nny provision of tbc award would bo

En_r:ints l.Jd., outside ~he purview of the enquiry contemplated by Kirktt, Poona

v. the section. If a party to the award is aggrit>ved Tli1 W01ktnttl by any of its provisions the merits the only 011 Gait11dragaJkar J. remedy available to it is by making an appeal, say

for instance under .~rt. l:l6 of the Constitution, to this Court. A grievance felt by a party against any provision of the award can be ventilated only in that way and not by adopting the procedure pres-cribed by s. 36A. Thus, the enquiry permissible under s. :lGA is limited to the question of tho inter-pretation of the provision of the award in question and no more. That is wby, we think, that even if the appellant had sought to raise the question about the propriety of allowing the accumulation of pri-vilege leave up to 45 days before the tribunal, and even if such a question lia<l been referred by the Rtatc Gcl\'crnment to the tribunal under s. 36A, the tribunal would have been justified if in refusing to considn it I ecause the point raised had nothing to do with the intcrpretnt.ion of the provision hut is eoncemed with it.~ merit.~ and its propriety. 'fhcre-forc, in our opinion, tho appellant is not <'ntit led to rai8o this point before us in the present appeal. The n<'xt contention raisc·cl by the appellant is against the refusal of the tribunal to entertain its application for clarification in regard tot.ho provi-sion for the payment to the worker I~ times his wag~s and dearness allowanco ovt•r and above a. substituted holiday if he has to work on a weekly off or on a. holirlay (paid or w1paid ). The grievance of the a.ppolla.nt in 8ubsta.nce is that in 1956 and 19.57, on account of shortage of electrical energy for industrial purposes the State Government com-pelled the factories to change their weekly holidays from Sunday to some other week day, oaoh factory or group of factories observing one week day as weekly off. According to the appellant, if a hand-ful of workmP,n are to work on a weekly off or on a holiday when the whole factory is closed then there 19111 would be some justification for making the payment Tiu ll"ir/osk<rr Oil to the workm~n required to work on such a day; EnzWsLtJ.,

there would be no justification for making such K irkee, P'*1a b~1t v. payment where the whole factory works on a weekly Tiu Workmtn off or on a holiday. In support of this contention GajtndragaJkar J, the appellant reli~s on the observation made in the original award that the basis for directing the addi-tional payment for working on a weekly off or on a holiday is that the workman is deprived of an opportunity to spend his time in the company of his colleagues and refresh himself. It is urged that when all his colleagues are working there is no point in saying that anyone is deprived of an oppor.

tunity to spend his time in the company of his colleagues. The tribunal was not impressed by this argument and so it has refused to make any olarifi.

cation-cum-modification in its award. It is signifi-cant that the argument based on the orders issued by the State Government requiring the factories to change their weekly holidays owing to shortage of electric energy was not ra.ised before the tribunal at the time when it originally heard the dispute between the parties. It has stated in the present order that it looked at its notes of arguments and noticed that no such plea was raised before it at that time. Besides, the tribunal has observed that having regard to the definition of the word "week"

under s. 2 (f) of the Factories Act as well as the provisions of s. 52 of the said Act it would have been open to the appellant to have another day of the week declared as the first day of the week for its purposes. If the appellant had adopted such a course the difficulty on which it relied would not h we arisen.

The appellant contends that the reasons given by the tribunal in rejecting its claim for clarificati 1n are not sound. We are not impressed by this argu-ment. As we have already pointed out, the present argument ignores the)imitations of the scope of the

498 SUPREME OOURT REPORTS [1962] SPPP.

JS6J enquiry nnder s. 36A. It is clear thnt in substance 111/tirloskar Oil tho ar~nmeut is that the direction isaued by the

EngintJ L1J., award in regard to the payment in question should Jrir~t. Poo11a be

v. mo<lific<l, and in support of the claim for modifi-TJi, W"'kmtn cation reliance is placed on the relevant orders Goj11dra&adkar J. issued !Jy the StatP Government for changing the weekly holidays. Such n claim cannot obviously be entNtained in clarification proceedings under s. 36A. A proceeding contemplated bys. 36A is not a procc<>ding intended to enable the tribunal to review or modify its own order; it is intended to enable the tribunal only to clarify the provisions of its a'mrd where a difficulty or doubt arises about the interpretation of the provision.~. Quito clearly the impugned provisions contained in paragraph I 4 of the award in r<'lation to this demand aro clear and unnmbi~ous. Whatever may be thr appellant's grievance in respect of the validity or the propriety of tho said directions there is no <lifficnltv or doubt about their meaning; and so \rn are satisfied that tho tribunal was right in refusing to alter the said direction in the present proeei>dings.

The result is the appeal fails and is dismiRSerl with costs.

A pperil diamia.~Pd.

J96J M/S. MOTIPUR ZAMINDARY CO. (P) LTD.

Novtmh" 20. v.

THE STATE OF RIHAR

(R. P. RmTIA, c .. T., .T. r •. KAPUR, M. HmAYATUJ.T.AH, J. C. SHAH and J. R. MunHOLKAR, JJ.) Salu Ta.y,--Exemplion of green 1JPqe/able.<-S1tqar Can•, if Jails williin ezemption-Dealtr-Produc.r of •>1qar cant., whether a dtalt.r-Bihar Sak• Ta.-r Acl, 1.?47 (Bihar 19 of 1947), ..,, 2(c), 6-Noti{ication No. 9881-F 7 dat&l Auqust 28, lf/47-Rihar Annual Finance Act, 1950.

Under s. 6 of the llihar Sales Tax Act, 1947, the Govern-ment issued a notification e."(empting cert;lin goocls from the