@JUDGMENTTAG-ORDER
Seshachalapati, J.@mdashThis is an application under Article 226 of the Constitution of India to call for the records relating to the Industrial Dispute No. 45 of 1966, on the file of the Industrial Tribunal, Andhra Pradesh, Hyderabad, and to quash the award dated 11 November 1957 made therein.
2. The petitioners are the workmen of Bhajrang Jute Mills, Ltd., Guntur, represented by Bhajrang Jute Mills Staff Union. The respondent 1 is Bhajrang Jute Mills, Ltd., represented by its manager for the time being.
3. The petitioner-union made certain demands for the fixation of scales of pay, minimum wages and increase in the dearness allowances to the workmen. The management did not agree. There were some attempts at conciliation which proved abortive. Thereupon, the Government of Andhra Pradesh by G.O. Ms. No. 156, dated 19 February 1957, issued a notification u/s 10(1)(c) of the Industrial Disputes Act (Central Act, 1947) in these terms:�
4. The following notification will be published in the Andhra Pradesh Gazette:�
Notification
5. Whereas an industrial dispute has arisen between the workmen and the employers of the Bhajrang Jute Mills, Guntur, in respect of matters mentioned in the annexure to this order;
6. And whereas in the opinion of the Governor of Andhra Pradesh it is necessary to refer the said dispute for adjudication;
7. Now, therefore, in exercise of the powers conferred by Clause (c) of Sub-section (1) of Section 10 of the Industrial Disputes Act) Central Act 14 of 1947), the Governor of Andhra Pradesh hereby refers the said dispute for adjudication to the industrial tribunal having its place of Sitting at Hyderabad.
Annexure
I. (i) Whether the demand of the work men for fixation of scales of pay of various categories of monthly paid staff is justified?
(ii) If so, what should be the scales ?
II. (i) Whether the demand of the work men for payment of dearness allowance at the rate of 3 annas per point over the Eluru cost of living index is justified.
(ii) If not, to what relief, are they entitled ?
The reference was duly registered as Industrial Dispute No. 45 of 1957 by the Industrial Tribunal, Hyderabad, and was enquired into. Eight witnesses on behalf of the union and three witnesses on behalf of the management were examined. A large number of documents were filed in the case. On a consideration of the evidence, oral and documentary, the tribunal held that the revision of scales of wages or enhancement of dearness allowance in accordance with the demands of the workmen could not be made. However, the tribunal held that there was a great disparity In the wages of the mazdoors, namely, scavengers, sweepers, lorry cleaners and canteen workers and that there was no justification for such a difference. The tribunal, therefore, directed that the mazdoors should be paid in addition to 11 annas per day, a dearness allowance of Us. 1-1-0 per day. aggregating to Rs. 45-8-0 per month. As to the clerks, it was held that the starting pay should be raised to Rs. 40, with a flat dear-ness allowance of Rs. 30. Aggrieved by that order the union have filed the present petition.
8. Mr. Rajeswara Rao, the learned Counsel for the petitioners, has raised before me the following contentions:
(i) that ''the appointment of the tribunal that passed the present award is incompetent;
(ii) that the finding of the tribunal that the question of fixation of minimum wages had not been referred to it is palpably incorrect, as in the very process of revising the scales of pay is implicit the question of fixation of minimum wages;
(iii) that the finding of the tribunal that it had not been proved that the management had the necessary financial capacity to warrant a revision of scales of wages or enhancement of dearness allowance In accordance with the demands of the workmen is entirely opposed to the evidence tendered in the case; and
(iv) that the tribunal has ignored the crucial evidence tendered in the case and declined to draw the necessary inferences from the proved facts thereby committing a manifest error of law that justifies and warrants interference by this Court under Article 226 of the Constitution.
9. On behalf of the respondents, it had been contended by Mr. K. Srinivasamurthi that the finding of the tribunal that the management has not the financial capacity to justify the revision of scales of pay and the enhancement of dearness allowance in the manner asked for is correct; that the finding of the tribunal on this part of the case is not vitiated by errors of fact much legs by errors of law, that on a comprehensive survey of all the facts proved Including the wages paid to the staff in establishments of comparable industries in the locality, the reliefs granted by the tribunal are just and proper and that there is no case whatever for interference with the award which has been rendered on a fair review of the evidence and which is not afflicted with any jurisdictional infirmity or patent error of law.
10. The first objection of the petitioners is that Sri Mir Siadat All Khan, who has been appointed as the Chairman of the Industrial Tribunal, Andhra Pradesh, Hyderabad, does not possess the requisite statutory qualification, u/s 7 of the Industrial Disputes Act. Section 7(3) of the Act prescribes the qualifications. It is stated therein that where a tribunal consists of one member only, that member, and where it consists of two or more members, the chairman of the tribunal, shall be a person who�
(a) is or has been a Judge of a High Court; or
(b) is or has been a District Judge; or
(c) is qualified for appointment as a Judge of a High Court:
Provided that no appointment under this Sub-section to a tribunal shall be made of any person not qualified under Clause (a) or (b) except with the approval of the High Court of the State in which the tribunal has, or is Intended to have, its usual seat.
It is alleged that Sri Mir Siadat All Khan is not a Judge of any of the existing High Courts in India, and that he being an ex-Judge of the Hyderabad High Court which had been abolished under the provisions of the States Reorganization Act, 1956, would not give him the necessary qualification. There is no substance whatever in this contention (?). Clause (a) of Section 7 requires that the chairman should be one who is or has been a Judge of a High Court. It is not in dispute that Sri Mir Siadat All Khan was a Judge of the High Court of Hyderabad, which was one of the Part "B" States prior to the States Reorganization Act of 1956. That being so, he is a gentleman who is fully qualified to be a chairman of the industrial tribunal. Further, it is not open to the petitioners to raise this contention at this stage. It would not appear that the objection in the form in which it had been taken has been raised before the tribunal. That being so, the petitioners cannot be permitted to raise that point in this writ petition. On O. A. K. Lakshmanan Chettiar v. Corporation of Madras ILR 50 Mad. 130 at 134 a Pull Bench of the Madras High Court has held that if an applicant for a writ of certiorari armed with a point of law or fact had elected to argue the case on the merits before the Court or tribunal, he must be taken to have submitted himself to a jurisdiction which he cannot be allowed afterwards to seek and repudiate by applying for a writ of certiorari, The principle of this decision has recently been affirmed by the Supreme Court in
11. The principal contention of the learned Counsel, however, is that the finding of the tribunal as to financial capacity of the management is entirely erroneous.
12. The Bhajrang Jute Mills, Ltd., Guntur, is stated to have been started in 1907. For a variety of reasons, which it is not necessary for me to consider, now the mills languished and eventually in 1937 they went into liquidation. The present management purchased the mills in or about the year 1940, Originally the mills were working with 50 looms and the present management when it took over and conceived the idea of working the mills in Guntur itself increased the number of looms in due course. At present, it is stated there are 120 looms of which only 100 are working. The petitioners allege that between the years 1941 and 1948 the capital of the company was increased from Rs. 4,03,000 to Rs. 12,50,000, that there was a steady and growing increase in the sales and profits, that its general reserves, fixed assets and investments had been steadily on the increase, and that at present it has large reserves. On the contrary, it is contended for the management that the mills constitute one of the smallest and most uneconomic units in the jute industry, that the difficulties in procuring raw jute and industrial stores like coal, batching oil and other mill stores which have got to be brought from a long distance and the general economic position with respect to the jute industry coupled with the deficits that the management having been facing for years make it impossible for it to bear further enhancement of wages which bad reached almost the saturation point.
13. The management have tendered evidence as to their financial capacity. The balance Bheets for the years 1950, 1951, 1952, 1953, 1954, 1956 and 1954 have been flled. A profit and loss account marked as Ex. M. 10 has also been filed. This statement shows the profits or the deficits, as the case may be, of the respondent 1 mills from the years 1950 to 1956. In that statement the management had claimed a uniform sum of Rs. 2 lakhs per year as a permissible deduction from the Income of the mills for rehabilitation and modernization charges. The tribunal had rejected this claim. It is urged that having rejected the rehabilitation and modernization charges, the tribunal has committed a palpable error in the computation of figures as to deficits.
14. For the year 1950 the tribunal has held that there was a deficit of Rs. 18,115-2-4. The profit for the year is shown in Ex. M. 10 as Rs. 3,86,390-4-10, The total amount of charges and deductions including rehabilitation and modernization expenses is shown as Rs. 5,68,275-2-6 and, therefore, a deficit of Rs. 1,81,88443-8 has been shown. If the amount of Rs. 2 lakhs claimed by the management as rehabilitation and modernization charges is disallowed as the tribunal has, then there will be a surplus and not a deficit of Rs. 18,115-2-4. For the year 1951, the tribunal has found that there is a surplus of Rs. 31,609-15-6. If the amount of Rs. 2 lakhs claimed as rehabilitation and modernization charges is disallowed, the balance would be very much more than what is shown in the profit and loss account and what has been found by the tribunal. Similarly, the finding of the tribunal that there is a deficit of Rs. 1,48,494-0-11 in 1952 is an obvious error, because if the amount of Rs. 2 lakha for rehabilitation and modernization charges is disallowed there will be surplus and not a deficit of Rs. 51,50545-1. For the year 1953, nowever, in the Ex. M. 10 it is shown that there was a deficit of Rs. 2,50,078-8-4, Deducting the sum of Rs. 2 lakhs for the rehabilitation and modernization charges, there will be clearly a deficit of Rs. 50,078-8-4, For the year 1954, according to Ex. M-10 there is a total deficit of Rs. 3,46,229-9-10. After deducting the amount of 2 lakhs disallowed, the net deficit would be at Rs. 1,46,220-940. In 1955 a deficit of Rs. 1,10,894-6-8 is shown. If this amount is set off against Rs. 2,00,000 (disallowed), there would be a surplus of Rs. 89,105-9-4. For 1956 a deficit of Rs. 2,46,12944-2 has been shown. If this is set off against the sum of 2 lakhs (disallowed), there would be a deficit of Rs. 46,129-14-2.
15. Mr. Rajeswara. Rao contends that the observation of the tribunal that there was a deficit for the year 1950 and a deficit in 1952 and 1953 is much an obvious error in the appreciation of evidence that no weight could be attached to the finding of the tribunal on the question of financial capacity of the management. But it seems to me that this has no material bearing on the question as to the present financial capacity of the management. It ia well recognized that the demands of workmen for enhanced rate of scale of wages�or bonus and such other reliefs�can only be met and made exigible from the trading profits and the revenues. The profits earned in the past which had either been utilized in building up the general reserves or in incurring other expenses cannot now be taken into account to assess the financial capacity of the industry to bear the burden which is sought to be laid on it by the revision of scales of pay and other reliefs.
16. In
17. Mr. Rajeswara Rao very strongly relied upon the fact that the tribunal had excluded the profits alleged to have been made by the mills in Calcutta, Cuttack, and other outside places during the years 1950 to 1952 and in 1956 amounting to the sum of Rs. 7,62,565-12-3. It is argued that these profits should have also been taken into account and that the entire undertaking must be viewed as a single unit. Reliance for this contention has been placed on the observations of the Supreme Court in
18. The second ground upon which the tribunal had rested its decision is that on a comparison of comparable industries on the local or country-wise basis, there is no justification for granting of the reliefs claimed by the workmen. The tribunal had considered the wages of the staff in the Krishna Jute Mill. Eluru, Hemalatha Textiles, Guntur, two of the cement companies of the Visakhapatnam and Tadepalligudem, and Nelllmarla and Chittivalasa Jute Mills, Visakhapatnam. It held that Nellimarla and Chittivalasa Jute Mills, Visakhapatnam cannot be taken as a basis of comparison, for those mills are much larger in scope of business and constitute a bigrger economic unit with about 500 looms. Therefore, the tribunal rejected�in my view rightly�the relevance of the wage-structure in the Nellimaria and Chittivalasa mills. It had also rejected for cogent reasons the comparison with the Hemalatha Textile Mills or the cement companies. It has, therefore, confined itself to jute mills in the neighbourhood and has, on evidence, oral and documentary, found that the salaries and clearness allowance of the staff of the Bhajrang Jute Mill is generally much better than those of the Krishna Jute Mill. There is really no substance in the contention of Mr. Rajeswara Rao that though the tribunal referred to the principle of industry-cwm-reglon basis in Para. 10 of its award, what really dominated its mind is its erroneous apprehension of the financial incapacity of the management. No doubt the tribunal had addressed itself in the main to the question of financial incapacity, but it would be a misreading of the award to say that the comparison with similar jute mills in the neighbourhood did not enter Into the reasoning adopted by the tribunal or Into the conclusion to which It had reached.
19. It has been contended that the financial capacity and prevailing rates of wages in similarly situated industries have no relevancy in the case of fixing of a minimum wages and an industry that does not provide its workmen with the minimum wage has no right to exist. It is true that in the fast-evolving social philosophy of the world in general and of our country in particular, it is becoming increasingly recognized that a worker is entitled to a minimum wage. In fact one of the directive principles of our Constitution is that the State shall endeavour to secure by suitable legislation or economic organization or any other way, to all workers, agricultural, industrial or otherwise, work, living wage, conditions of work ensuring decent standard of living and full employment of leisure, social and cultural opportunities. But the argument that the fixation of rates of wages and scales of pay and dearness allowance is de hors the financial capacity of an industry is, to my mind, too broadly stated. Admittedly this IB not a case where the industry has been notified under the provision of the Minimum Wages Act (Act XI of 1948). In such a case therefore, the financial capacity of the industry to sustain their additional burden is a very necessary consideration. In
In the fixation of rates of wages which include within its compass the fixation of scales of wages also, the capacity of the industry to pay is one of the essential circumstances to be taken into consideration except in cases of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity.
The tribunal is right in holding that the reference by Government u/s 10(1)(c) of the Industrial Disputes Act did not include the question of any minimum wage, but was only with reference to the fixation of the scales of pay and the dearness allowance. In those circumstances, there is no point in contending that the tribunal should have addressed itself to the question of fixing the so-called minimum wage without any reference to the capacity of the industry. The various categories of employees in the mills have asked for the benefits in their statement. So far as clerks are concerned, the tribunal had fixed their starting pay at Ra. 40 instead of Rs. 30. It had also fixed a flat rate of Rs. 30 as dearness allowance. With respect to the mazdoors, such as scavengers, sweepers, lorry cleaners and canteen workers, etc., the tribunal found that any distinction between them was unnecessary and that they could be given identical wages of 11 annas per day with a dearness allowance of Rs. 1-1-0 per day totalling to a remuneration of Rs. 45-8-0 per month.
20. In an application under Article 226 of the Constitution of India this Court does not exercise the powers of a Court of appeal. It is not its function to review the faota and the evidence and to investigate whether the conclusions to which the tribunal had come are sustained by cogent evidence. The supervisory Jurisdiction of this Court is confined to cases where the subordinate tribunals exceed their jurisdiction, or not without legal authority or perpetrate an error of law patent on the record or violate some principles of natural justice. Where none of these circumstances is present, the High Court will not interfere with the award, which the tribunal had made after a fair survey of the material placed before it.
21. In the result, the petition fails and is dismissed with costs of the respondent 1. Advocate''s fee Rs. 100.
