Management O.F the D.C.M. Chemical Works v. Their Workmen

Wonchoo J. On the other hand there are certain features

which havo been pointed out by the tribunal and . which are not in dispute which go to show th'.Lt the Company bas been treating its various unitll as in-uepcndent concerns in actual practice. Each unit bas separate books of account and separate profit I and l<iss account Hhowing how each particular busi-ness is faring. Each unit has separate muster-rolls for illl employees and transfers from, o~c unit to the other, even wbero such transfers,,. are possible considering the utterly different kinds of business that the Company is <>.arrying on, usually take place with the consent of the employees concerned. Further each unit bas got its own separate wa.ges and separate dearne88 allowanco and other different allowancell and bonus is also paid differrntly in e11eb concern. Further even where eales take place from one unit to anothl'f tht1y take place at market rate and not at cost price and are adjusted on this basis in the books of account. Lastly though there is a common board of directors and a common managing agency of tho Company. each unit has its own separate management as it is hound t-0 be for tho businc..'18 carried on by ditr'erent units is in many cases utterly different.

It is on theso facts that we have to seo whether the chemical works can he said to bo so integrated with the other units of the Company as to justify the conclusion that it is part of the samo business, and the entire business carried on the Com-pany is one establishment, and therefore it would not be right to have different wage·structure, dear_ nese allowance, etc., in the same est'lbli!lhment• This matter was considered by this Court in con-1962 nection with lay-off in The Associated Cement Com-panies Limited,Chaibasa Cement Works, Jhinkpani v, M anagemmt of thd D.C. u. Chemical Their Workmen(1), where tests were laid down for Works determining whether. a particular unit is pa.rt of a v. Thei.r Workmen bigger establishment. These tests included geogra-phical proximity, unity of ownership, management Wanchoo J. and control, unity of employment and conditions of service, functional integrality and general unity of purpose. But it was pointed out that it is was im-possible to )1,y down any one test as an absolute and invariable test for all cases and the real pur-pose of these tests was to find out the true relation between the parts, branches, units. If in ti:; ir true relation they constitute one integrated whole, then the establishment is one ; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. How the relation between the units ·will be judged must depend on the facts proved. Thus in one case the unity of ownership, management and control may be the important test, in another case, functional integrality or general unity may be. the important test; and in still another case, the important test may be the unity of employment. It was pointed out that in a large number of cases several tests may fall· for consfoleration at the same time and the difficulty of applying these tests arises because of the complexi-ties of modern industrial organisation. The matter was considered again by ·this Court in Pratap Press etc. v. Workmen ( 2 Pakshiraj Studios v. Workmen( 3), ), Hony. Secretary, South India Millowners' Association v. Secretary, District Coimbatore District Textile Work-men U nio.n (') and Fine Knitting Co. Lti/,. v. Indus-trial Court, Bombay('). In the case of Fine Knitting Co., this Court was considering one limited com-pany but it was held in t.he . circumstances that even though there was unity of ownership, management · and control the two parts of the same concern were

(1) [1960] 1 s.c.R. 703. (2) [1960] l L.L. J. 497.

(3) [1961] 2 L. L.J. 380. (4) C. A. 419 of 1960, decided on 1-2-62.

(5) C.A. S06 of 1961, decided on 15-2-1962.

llltil diffrrcnt uuits as th<'re waR no functional integrn- /Jl cinogm:ent of tht-lity between them. It is on the basis of these tests

.C.M. Ct..mical that we havti to consider whether the tribunal WM

Wor.i:s right in its conclus10n that the ohcmical works has

Y, Their ff'orkmm to be treated as an independent unit.

Wane/Joo J. The common features which have been empha-

sised on behalf of t.ho respondents are in our opinion clearly capable of Pxplanation on tho ground that the Company is a limited concern and carries on different kinds of business. But as in law under the Companies Act, the Company being a I limited concern is one legal entity, the Common features on which the respondPnts rely follow from that one single cirrumetancc, namely, that the Company is a limited concern governed by the Company Law. It would thorefore in our opinion be not right to emphasise these · common features and to hold on their basis only that the various buRinesses carried on by the Company have to be treated as one integrated whole for the purposes of waµe-Rtrncturc etc. The outstanding fact in the present case is that though a large number of busi-nesses is being carried on by the Company their nature in many caaes is utterly different and one has generally speaking nothing to do with tho other. The three main lines of business whioh the Company is carrying on are Rugar, textiles and chemicals. It is obvious that there is nothing common between these three-different lines of business and there can be 110 question of one depending upon the other and there cannot be functional integrality generally speakin!! between these three lines of business. There might be some connection speak-ing between the nhcmieal works and the textile mills of the Compa11y inasmuch as some of the chemicals might be used in the textile mills; but · the evidence shows that a very small proportion of

tho chemicalR produced in the chemical works is used in the textile mills and that most of the pro-duction is sold in the open market. It cannot therefore be eaid that the ohemical worka 88 it now exists is therefor the purposes of the textile mills 1962 and is thus integrated with the textile mills. Even Management ofche in the matter of employment. the evidence is that D.C.M. Chtmital there is separate recruitment of labour for the Work• •• different units and each unit has separate Their Workmen muster rolls of employees and this is quite Wanchoo J. natural considering that different skill is required for the three lines of business carried on by the Company. It cannot also be said that there is any· essential dependence of the chemical works on the textile units or that one cannot be operated with-out the other. Further the way in which the Company has been dealing with different units in the past also shows that they have been treated as independent units. Each unit has its own separate labour union and separate agreements are entered into between the Company and its unions with respect to the conditions of service which are also dif-ferent for different Units. Even in thematter of bonus there are differnnces between the different units and these differences sometimes arose out of different agreements between the various units and their unions. It appears that even in the case of units carrying ori the same business, as for example, textile, the workmen themselves contended in an earlier adjudication that the Delhi Cloth Mills and the Swatantra Bharat Mills were two distinct and separate units of the Company. In any case what-ever may be said as to the units in the same line of business it is in our opinion perfectly clear that there is no nexus of integration between different lines of business carried on by the Company on the facts which have been proved in this case. We are of opinion therefore that the ratio of the decision in the Fine Knitting Co.'s case(') applies to the facts of this case and it must be held that the chemical works is an independent unit and therefore in fixing the wage structure etc. we have to look to the position 9f the chemical works only and cannot

(o) C.i\. 306 ofl961, decided on 15-2-1962.

integrate it with other units and consider its wage }if 1114.('tmtnl qi llk structure etc. on the basis of such integration.

Jf' PtkJ It is in the background of the above finding,

v. namely, that the chemical works is an independent 7 li.~lr U-'or.bntn

unit that we now come to the specific points raised IVanchooo,J. in the two appeals. We shall first take the appeal

by tho workmen. The following four contt-ntions 'only were pressed before us on their behalf:- (i) Even considering the chemical works aa tin independent nnit, the tribunal should have fixed a wage structure including in-cremental scales ;

(ii) The trihunttl should have given the same minimum scales to the workmen cmplo· yed in t-he canteen a.A are being given to the oth!'r workmen in this concern ;

(iii) The t.ribuna.l ghou ld have madn those members of the dvil engineering department who had been working for more than one year permanent and shou J<I h>tve given them t.l1e same wrms and conditions of ~ervice n.s are enjoyed by other workmen of the con-cern ;

(iv} The tribunal ~hould have awarded rurther bonus to the workmen.

Re. ( i).

The contention on behalf of the respondents in this respe<:t is thatthere are no incremental scales in this concern and the tribunal should have at any rate made a beginning by fixing some inoromental scales for the fix workmen. The tribunal however baa refused to incremental scales on the g-round that the concern htts neither financial ability nor stability to justify the fixing of inercme11ta.I scale,a at the ~resent ti~e. It is not in dispute that throughou~ the course of its existence the chemical works has 196! made profits only in two years and that. for the rest M ant1gemmt of lh of the time it has been making lossos which had to D.C.M. Chemical be met by the Company out of the profits of other Workr v. units. Reliance in this <:onnection has been placed Their Workmen on behalf of the respondents on certain observations Wanchoo J. in the Tariff. Commission Report and on a book called "Fertilisers Statistics in India" to show that the chemical industry has a very prosperous future in front of it. Reliance has also been placed on a communication addressed by the appellant to the respondents in which it has been said that judging from sound business principles the chemical works had not yet turned the corner of losses, but the position appeared brighter, and it was hoped that with the co-operation of labour the chemical works would be an asset to the D. C. M. family. Our attention has also been drawn to various annual reports in which an optimistic picture has been painted by the directors for the benefit of the share-holders. We agree however with the tribunal that in spite of the possibility that in time to come the .

chemical works might acquire stability and prove a source of increasing profit to the. Company, the fact remains that upto now the chemical works· has been running at a loss except for two years and one cannot be certain that it will start earning pro ..

fits soon. In these circumstances it seems to us that the tribunal was justified in not framing rm incremental scale of wages at the present juncture as that would put a heavy strain on the finances on the chemical works which has yet to attain finan-cial stability. At the present moment the losses incurred in this unit have to be met from the profits earned in other units of the Company and in this situation we do not think that the tribunal was wrong in refusing to frame incremental scales.

It is however urged on behalf of the respondents that if in the co~rse of the last twenty years the capital invested +n tl!e c~e!llical worJ-s bas ~urea.seq 19~1 tremendously as compared to the modest amount

with which it was started in 1942 and if the Com-M anag"""" of th1 pany can find capital for the purpose of expansion, D.C .\f. Chemical

Work4 •• it should be able to pn.y incremental scales of wages Their Workmen by dipping into tho same source from which

it has b~en able to find ca.pit.al. In effect this Wanchoo J. argument means that even though the concern may

be making losers year after year it should find money for p:iying the labour force higher wageR in spite of tho circumstance that that may load it into incurring further losses. The argument seems to ho that even though there may be losses the con-cern must pay higher wages to the workmon and if necessary pay them out of what may be called capital. Now this argument would in our opinion bo unanswerable if the cla.im was for what is called mumnum wage: (Seo Messrs Ctown Alu.miniwn Works v. '/'heir Workmen ('). If tho wages paid by tho appellant in the present case were below tho minimum wage t.ha.t the tribunal would eertainly be justified in ordering it to pay the minimum wage, for no industry can have a right to exist if it can-not pay wages at the bare subsistence level. Where it is a case of payment of minimum wago, the tribu-nal can insist on the same being found, if necessary, even out of. ca.pita!. But this is not a case of hare minimum wage and we are dealing with a case of fair wage which is above the bare minimum wage. It is not even the case of the respondents that they are not getting the bare minimum wage. !'heir case is that they should he given a fair wage, and that the present wage~, though above the bare minimum wage, arc still not fair cnou!h and there-fore should b"e increased and an incri;mental scale should be fixed. In such a situation we are of opinion that the present financial condition of the concern and its Rtability are both necessary to be considernd before an irwr<'ased fair wage can be given. Both tho present capacity of of the employer to pay the increased rates of in-1962 cremental wages and its future capacity have to be taken into account in determining an increased level Management pf the of fair wages based on an incremental scale. Thus D.C.M. Chtmical Works both financial ability at present and financial stabi- • v. lity in the near future must be there to justify fixa-Their Workmen tion of an increased fair wage on an incremental scale. Wanchoo J. We do not think it will be right to insist on an increased fair wage on an incremental scale in a case where the financial capacity and the financial stability as judged by business principles are both lacking. Nor would it in our opinion be right to compel the employer to bear the burden of an increased fair wage on an incremental scale and tell him to find money from what may in effect be capital, for such a situation in ordinary cases can lead only to one result, namely, the closure of the business concern, which may be more detrimental to the workmen. Therefore carr,,ying on with the present scale of fair wages and hoping that the financial ability and stability of the concern will improve, with the result that increased fair wage on an incremental basis may be fixed in future is the only alternative at present even in the interest of the workmen employed in this concern. We therefore agree with the tribunal that in the circum-stances no case has been made for fixing an incre-mental scale of wages at the present juncture. The contention on this head must therefore be rejected.

Re. (ii).

As to the canteen workmen, it appears that the canteen is run by the appellant departmentally on a no-profit-no-loss basis. The workmen emplo-yed in the canteen are the workmen of the appel-lant and their number is sixteen or seventeen. The minimum basic wage for unskilled workmen in this concern at the relevant time was Rs. 38.plus Rs. 55 i.e. Rs. 93; but. the workmen. in the .canteen get consolidated wages and all of them (except one) get

1962 much lesa than the minimum, the figures v·uying

from Rs. 50 to Rs. 78. The tribunal ha.a held that Managttnt11i of the there is no reason why the conditions of surviec of

C.M. Chemirfl/

Works the workmen in the oa.nteen should not b., brought on

v. a. par with tho conditions of service of the rest of Thftr W orknwi

tho workmen. It therefore ordered tha.t the work-W411thoa J, men in the can teen wou Id be en titled to the samo

facilities relating to leave, provident fund, bonus, and gratuity etc. a.s are available to the other work-men in the chemical works ; but so far a.s wages and dearness allowance are concerned, it has not given them cve.n the minimum as indica.ted a.hove. '1:he case of the the appellant was tha.t oven if the I minimum was paid to the workmen in the canteen the price of the various food-stuffs supplied by the canteen to the workmen would go up substantially and it wa.s on tha.t ground that the appellant resisted the increase in the wages of those workmen in the canteen who a.re getting less than the minimum of Rs. 93. The tribunal ha.a hehl-a.nd we think rightly-that the fa.et that the bettering of the conditions of service of the workmen in the can-teen· may lead to a. rise in the price of things sold there is no reason for refusing the demand of the workmen ; but it has not carried into effect fully the implications of this observation. It has ordered that·samc conditions as to leave facilities etc. should be extended to the canteen workmen but has stop-ped short of giving them the sa.me wagos a.nd dearness allowance. The reason why the tribu-nal did not give the workmen the same wages and dearness allowance is that thero wa.a no satisfactory material before it to permit it to fix wages and dearness allowance for the· workmen in the canteen. We are of opinion tha.t there is no reason why the tribunal should not ha.ve at least granted the minimum which is pa.id to the other workmen in 1. the ('.Once£n to those workmen in the canteen who are getting less than . the minimum. We can see no reason for not giving them a.lso the mimmum wages as indicated above. This will 1962 certainly result in bringing the fifteen workmen who are getting between Rs. 50 and Rs. 78 per Managemem of the D.C.M.. Chmical mensem as consolidated wages into an equal posi-Works tion, for each will then get the minimum, namely, v. Their W orkmePI Rs. 38 plus Rs. 55 and may remove part of the discontent. In the circumstances that is all that W dJJ&hoo J. can be done in the absence of the material to which the tribunal has referred. Therefore the wages of those fifteen workmen who are getting less than the minimum should be brought to the same level.

There is no reason why they should not get such benefits as may be due to them, by their wages being brought to the same minimum as the wages .

of the other workmen in the concern. We there-fore disagree with the tribunal with respect to the workmen employed in the canteen and order that the wages of those workmen who are getting less than the minimum paid to the other workmen in the concern should be brought to the same mini-mum level. The rest of the award on this head will stand. The minimum wages as above will be paid from the date the tribunal has ordered its award to come into force.

Re. (iii).

The claim of the workmen in this connection was that there were 300 workmen employed in 1he civil. engineering department and that they should be made permanent. The tribunal how-ever rejected this contention and pointed out that most of the workmen were.· temporarily engaged to carry on construction work which was of a temporary nature and therefore they could not be made permanent simply because the construction had Jasted for more than a year. This view of the tribunal is in our view correct in so far as the claim put forward with respect to all the three hundred workm,.n was concerned. It appears how-ever that at the time when the tribunal recorded.

1962 evidence tho large majority of these 300 workmen

had been discharged because they were no longer Alan-.gtm1n1ojtht required and only about Ci5 remained in service.

C.M. CA,mical

Works It appears from th" evidencc of thP Joint Works

v. that a skelt>ton st<iff on the civil ongine<'r-Am W ur/mun ~Ianager

ing side is kept for maintenance of buildings and H'anthoo J. this skeleton staff is of a more or less permanent

nature. The argument therefore before us is that at any rate this skeleton staff should be made permanent. It was however urged on behalf of the appellant that this was not the way in which the matter was put before the tribunal. The poRi-tion now is however clear that a skeleton staff is kc, pt on a pt•rmanent basis for the ci vii engineer-ing department and it seems to us fair that the appellant should be directed to make this skeleton staff permanent and give them the same facilities and wages etc., as are given to the other workmen. We therefore direct that the appellant shall make such of the skeleton staff as is maintainod for civil engineering purpose permanent and give them tho same conditions of service including the same mini-mum wages etc. as to the rest of the workmen. It is however left to the discretion of the appellant to determine· what should bo tho strength of this staff and which persons should Lo rerained as permanent employees. We say this because tho matter was not gone into from this point of view before the tribunal and wo have no material on which we ourselves can determine the strength of the skeleton staff and the persons who should be made permanent on that account. The direction will be given effect to within throe months of this judgement.

Re. (iv):

The W<>rkmen have been given 2 1/2 months basic wages as bonus for tho years in dispuk, namely, 1!153-54 and 1954-55. They have claimed additional bonus. It is however conceded fairly on behalf of the respondent that if the chemical 1962 works is treated as an independent uuit their case tht 111an1gement of for additional bonus on the basis of the Full-Bench LJ.C.M. Chemical formula cannot succeed. The demand for addi-JVorks v. tional bonus was rightly rejected by the tribunal, Their Workmen considering the chemical works as an independent unit. We may add that this case is distinguish- ~V anchoo J. able from the case of Hony. Secretary, South India Mill-oUJMrs Association, (1) for here the two lines of business are distinct and have nothing to d0 with each other.

This brings us to the appeal by the appelJant.

Five points hiive been urged on behalf of the appellant. They are: (i) dearness allowance; (ii) uniforms, (iii) acid and gas allowance. (iv) leave facilities, and (v) gratuity. We shall deal with them one by one.

Re. (i).

So far as dearness allowance is concerned, the tribunal has ordered that the dearness ·allow-ance in the chemical works shall be fixed at the same rate as it is in the power house which is a part of the chemical works. It may be m3ntioned that dearness allowance at the relevant tim11 in the chemical works was Rs. 55 per mensem while in the power house it was Rs. 66 per mensem. Tbe contention on behalf of the appellant in this con-nection is that the reason why there was this diffe-rence between the dearness allowance in the power house and in the rest of the chemical works is historical. It is further pointed out that though the difference in the two dearness allowances is H s. 11 the actual difference in the total wage pac-ket was only Rs. 3 inasmuch as the minimum. basic wage in the power house was Rs. 30 while in the chemical works it was Rs. 38 at the relevant time.

Thus the minimum that an employee was getting in the power house was Rs. 96 while the minimum for the rest of the workmen was Rs. 93,. and it is

Pl C.A. 41U of I W 1, <l•cid<d OD l-2·1962.

1962 • urged that the difference is not serious. The

reason that the tribunal gave for increasing the Monagttn#nl of the dearness allowance for the other workmen in the D.C .lit. Chnnical

U'orks concern was that there was no ground for dis·

v.

Their H orlmen criminating between the workmen in the power

house and the rest of the workmen. In increasing 'Vanchoo J. the dearness allowance on this sole ground the

tribunal ignored firstly the historical reason why there was this difference between the dcarn088 allowance for the power house staff and for the rest of the workmen and also ignored the diffe-rence in the basic minimum wages in the power house and for the rest of the workmon. It fur-ther s<'ems to have ignored its own earlier finding .that the chemical works was running at a loss and did not have the financial capacity to bear fur-ther burden. As a matter of fact it appears that but for this discrimination which the tribunal found between the rate oC dearness allowance for the powor house employees and the rest of the workmen it may not have made any change in the dearness allowance payable to the rest of the work-men. It may be mentioned that the system of dearness allowance in the concern is to allow neutralisation at the rate of 2-l/2 annas (now 17 nP.) for each point rise over the workir:ig class cost of living index treating the base as 100 for the year 1939. It may also be mentioned that .... since the reference was ma.do there has been a voluntary increase in tho dearness allowance for the rest of the workmen at the rate of Ra. 6 per mensem.

The reason why this difference is existing between the rate of dearness allowance for the power house employees and rest of the workmen is that for sometime the power house was inte-grated with the Swatantra Bharat Mills. There-fore as an integral part of the cotton textile indus-try tho rates of basic wages and dearness allowance in the power house were the same as in the cotton 1962 textile business of the company. Thus the rates flj there at the relevant time were, as we have already Management lhe D.C.M. Chemical said, Rs. 30 basic wage and Rs. 66 dearness allow-Works •• lance. At that time the minimum .wage in the Their W orkrrun chemical works was Rs. 38 basic plus Rs. 55 dearness allowance i.e. Rs. 93 in all. It appears Wanchoo J. however that there wa.s some objection by the Excise Departmel\t of the Government as there was a gate between the Swatantra Mills and the chemical works. The Excise Department wanted this gate to be blocked iu order to have better con-trol over the excisable articles produced in the chemical works. The appellant therefore had to block up this gate in 1950 a.nd therefore the power house which existed on the chemical works side of this gate was transferred from the Swatantra ~fills· to the chemical works. However as the. power house workmen were getting the textile rates, the Company assured them that though they would thereafter be under the control of the chemical works they will be governed for tho purposes of pay scales and dearness allowance etc. by the rules of the Swatantra Mills. It is this circum-stance which has resulted in different scales for the power house staff and the rest of the workmen of the chemical works. It further appears that there was some retrenchment in the power house in 1957 and the retrenched workmen were absorbed as far as possible in others units. At thn,t time there was an agreement between the Company and the power· house workmen and it was agn:ed that these workmen would be absorbed in other units but they would accept the conditions of service etc. of those units where they were absor-bed, with the result that only those who are left in the power house continue on the textile scales of the Swatantra Bharat Mills. These circumstances however were not taken into account by the tribunal · at all when it ordered that the power house scale of 1962 dearness allowance. should be introdueed for the

rest of the workmen also. The power house 8cale ,\fa11a:cmP'll of the is really the textile scale and the appellant conten- .C. ~1. 1r r:~emical

01A:s ded that it would lead to a good deal of complica- ' . tion if the textile scale of dearness qllowauce is ?"htir If orknu111

ordered to be introduced for tho chemical works. We are of opinion that thero is force in this conten-tion raised on behalf of the appellant and tho tribunal was not juRtified in increasing the dearness allowance for the chemical works merely because of this fortuitous circumstance a.rising out of historical reasons. In any case the number of the power house workmen is very small, say about 30/40, who who are getting a difforent rate of dearness allow-ance. l•'urthcr it appears that there was not much difference between the total wage packet for the power house workmen and for the rest and that was another reason 'why the tribunal should not have introduced the power house scale for tho rest of the workmen. [t has however been urgPd on behalf of the re~pondonts that the difforonce in the basic minimum wages between the power house workmen and tho rest of the workmen in the chemi-cal works has <lisappe,ircd afwr the recommenda-tions of the Textile Wage Board by which the minimum ba.~ic wage for textile workers has been increased by Jis. 8 and it became Rs. :!8 from January l, l\l60. Therefore, it is urged that there is no reaRon why tho tribunal's award with respect to making the dearness allowance for the rest of. the workmen the same as the workmen of the power house should not be allowed to stand. Superficially, this argument looks attractive ; but if one examines it in the light of the T0xtile Wage Board's recom-mendations it will be found that the linking of tho dearness allowance for tho chemical work's workmen with the power house workmen would load to end-less complications, for the power house workmen would be entitled to the same dearness allowance etc. 118 would govern the tox;tile workmon in the Swatantra Bharat Mills. The Textile Wage Board . 1962 report shows that it recommended not only that the basic wage should be increased but also that a large M anagtment of tht D .C .M. Chemical part of the dearness allowance should be merged W01ks with basic wage, the remainder alone remaining as v,," Thir --.- W Or km en dearness allowance. It'is submitted on behalf of the appellant that it has carried out the recommen- ,WanC~oo',J~ dations of the Textile Wage Board and the result of the same has been that the basi9 wages of the textile workmen which would apply to the power house workmen would be fhed at about Rs. 88 or Rs. 8ll and the dearness allowance would be reduced to about Rs. 15. It is urged that the practical linking of the dearness allowance :(or the rest of the workmen with the dearness allowance in the power house whioh has been ordered by the .tribunal on the ground that there should be no discrimination, would result in endless trouble, apart from the question whether in view of the earlier finding of the tribunal as to the financial capacity of the appellant it would be possible for the appellant to bear the extra burden of the increased dearness allowance. The operative order of the tribunal is that the. ';"Orkmen of the chemical works, excluding the workmen who are governed by Ex. W/2, should be paid dearness allowance at the rate at which it is being given to the workmen of the power house, and this undoubtedly in our opinion would lead to endless trouble now that the recmnmenda-tions of the Textile Wage Board will for historical reasons apply to the workmen in the power house.

We are therefore of opinion that the ground on which the tribunal ordered the rate of dearness allowance for the other workmen of the chemical works to be paid on a par with the rate for the power house is not sustainable and the tribunal went wrong in not giving due weight to the histori-cal reasons for the rates prevailing in the power house. Further we are of opinion that the increase is not sustainable on its own merits on the ~rounq

1962 of tho financial capacity of the concern, which the

tribunal itself found was not sound. as tho conrern M anog"""'1 •f •At had been running at loss practically sinrc it camo D.C.M. Chemical

Works into existence except for two years. The contention

Y. therefore on behalf of the appellant this head Tluir Workmen 011

must be accepted and the order of the tribunal Wane.loo J. increasing the dearness allowance set aside.

Re. (ii).

As to uniforms, we see no reason to differ from the view takC'n by the tribunal. The roason's given by tho tribunal for ordering that uniforms should be given to certain category of workmen are in our 1 opinion sound. But the tribunal has made a mis-take when it went on to order that protective equipment ahould also be given in addition to uniforms, to the persons found entitlP-d to w1iforms according to the directions of the tribunal. The tribunal seems to have overlooked the difference between uniforms and protective equipment; which is provided in the Delhi Factory Rules. So far as protective equipment is concerned, it is given for certain specific purposes to be found in tho ltules and has no connection with uniforms which employ-ers are ordered to supply to their workmen, for reasons entirely different. We are thereforn of opinion that the direction of the tribunal that proteotiye equipment should also be supplird to persons founct entitled to uniforms under its order, is not correct and should be set aside. So far as protective equipment is concerned, it will only be supplied to those who are entitled to it under tho Delhi Factory Rules and not necessarily to all to ".1 whom µniforms may have to be supplied under the orders of the tribunal. We order accordingly. Re. (iii).

As to aci<l and gas allowance, the tribunal ha.A: ordered the faymcnt of Rs. 3 per month to certais categories o workmen. It appears that originalln the appellant used to pay Rs. 5 as acid and gas 1962 allowance in the Nitric acid gas plant and Rs. 3 in Managemenl oftht the contact plant. Later, however, this gas allow-D. C. M, Chemical ance was merged in pay. But it appears that gas Works v. allowance is still being paid to the workmen in the Tluir W 11kmen nitric acid gas plant. It is contended on behalf of Wanchoo J, the appellant that this was because the gas allow· ance in the case of these workmen was not merged in pay. There is, however, nothing on the record to prove this. As the record stands we have no reason to hold that the gas allowance which was originally paid to the workmen of the nitric acid gas plant was not merged in their pay. On the whole therefore the reasons giv!'n by the tribunal for making the allowance of Rs. 3 to those workmen who are engaged in the manufacture of chlorine, sulphuric acid, caustic soda and hydrochloric acid appear to us to be sound end we see no reason to ·interfere with that part of the award.

I

Re. (iv).

So far as leave facilities are concerned, the tribunal has awarded that privilege should be granted as provided under the Factories Act. It has further provided that casual-cum-sick leave should be granted for twelve days in the year. We do not think that this award is in any way unreason-able. The tribunal has however gone on to deal with festi v.al holidays, and that in our opinion the tribunal had no jurisdiction to do. The reference was in these terms : "Whether leave facilities should be increased, and if so, to what extent".

There was no reference with respect to holidays.

The tribunal has however taken the view that holidays are. covered within the words ·"leave facilities" used in the order of reference. We are of opinion that this view is incorrect. . Holidays are entirely different from leave fadlities. On a,

540 SUPREDU'.: COURT REPORT3 [1962] SUPP.

1962 holiday the entire business is closed and no one M •MfltmMI af the works while leave faoilities deal with leave for JJ. M. ChtmiCal individual workers while the busin•ess as a wholo is

Works running. \Ve may in this connection refer to item

v. '• Thrir 0Wrkm1n 4 of tl1•3 1'ilir,i SJhedule to the Ind11strial Disputes

Wandlao J, Act (~o. l-1-of L9!7), which is in theso terms : ·

"Leava witl1 wages and holidays". This shows that holidays stand on a different footing altogether from leave with wages and a reference with respect to leave facilities cannot include a consideration of holidays. The tribunal's order with respect to holidays is set aside.

Re. (v).

Lastly we come to the gratuity scheme sanc-tionrd by the tribunal. It is true that in this concern there is already a provident fund scheme in force. But it is now well settled that both gratuity a.s well as provident fund schemes can he framed in the same concern if its financial position allows it. It is true that the financial position of the chemical works has not been found to bo good and stable enough to warrant an inore-mental wage-structure ; but gratuity is a long term provision and there is no reason to suppose that in the long run tho appellant 'viii not be in a flourish-ing condition. As to the burden of tho scheme, we do not think that, looking at it from a practical point of view and taking into account the fact that there are about 800 wotkmen in all in the ooncern, the burden per yoar would be very high, considering that tho numbor of retirements is between three to four por centum of the total strength. Fnrther we find that in this very concern there is a gratuity schem-3 for clerks who number between 100 and 200 and aro part of tho labour force. \Ve can .see under the circumstanco1< no reason why a similar gratuity ~cheme should not be framed for the rest of the

SUPREl\lE COURT 541 ~ ' I a s.c.R. REPORTS

· We therefore see no reason to interfere 1962 wor k men. ·. t with the order of the tribunal in this respec · Managtment of the D. c. M. Chmiical We therefore allow the appe~ls .in par~ and Works v. dismiss them in part in the manner md1?ated m the Tluir W •rkm1n course· of this judgment. In . the mrcumstances Wonohoo J, parties will bear their own costs m both the appeals.

Appeals allowed in part.

PRATAPRAY MANMOHANDAl::i · 1962

v. March 2.

BOMBAY BULLION AS~OCIATION LTD.

(J. L. KAPUR, K. 0. DAS GUPTA and RAGHUBAR

. DAYAL, JJ.)

Bullion Association-Member owing amount to creditor-Pailure to submit Kapli (voucher) for amount - Committee declaring him a defaulter-Legality of -Giving of opportunity to •ubmit Kapli if denied-Bombay Bullion . Asaociation Bye Laws 155 (4).

The appellant was a member of the Bombay Bullion Association Ltd. He entered into certain forward transactions with certain other persons. According to the bye-laws of the Association the appellant had to submit a balance sheet and to give kaplis (vouchers) for the amounts due from him, but the appellant did not include the amounts due from him in the balance sheet nor did he give the kaplis on the ground that these transactions were fictitious and illegal. On the settlement day the Clearance House committee called upon the appellant to appear before them. Before the Committee the appellant took the stand that they had no jurisdiction to proceed with the matter as he was claiming arbitration. Th committee passed a resolution declaring him a defaultere The: appellant filed a suit challenging the resolution. inter alia.

on the ground that the Committee, after its decision, was bound, under bye-law 155 (4) to give him an opportunity to give the kaplis before it could declare him a defaulter. The bye-law provided:-