BHARATKHAND TEXTILE MANUFACTURING CO LIMITED AHMEDABAD Vs. TEXTILE LABOUR ASSOCIATION BHADRA AHMEDABAD ADVOCATE GENERAL FOR STATE OF BOMBAY

JUDGEMENT

(1.) THE following Judgment of the court was delivered by :

(2.) THIS appeal by special leave is directed against the award passed by the Industrial court, Bombay, by which a scheme for gratuity has been framed in favour of the workmen represented by the respondent, Textile Labour Association, Ahmedabad, who are employed by the textile mills in Ahmedabad including the twenty appellant mills before us. In order to appreciate the points of law raised by the appellants in the present appeal we ought to state at the outset the material facts leading to the present dispute in which the impugned scheme for gratuity has been framed. On 13/06/1950, the respondent gave notice under s. 42(2) of the Bombay Industrial Relations Act, 1946 (Bom. XI of 1947) (hereinafter called the Act), intimating to the Mill Owners' Association at Ahmedabad (hereinafter called the Association) that it desired a change as specified in the annexure to the communication. The Annx. showed that the respondent wanted a change in that a scheme for gratuity should be framed wherever services of an employee are terminated by the mills on grounds of old-age, invalidity, 'incapacity or natural death. It was further claimed that the payment of gratuity in the said cases should be at the rate of one month's wages (including dearness allowance) per every year of service. Some incidental demands were also specified in the annexure. The demand thus made was not accepted by the Association, and so it was referred to the Industrial court. Pending the reference the Employees' Provident Funds Act, 1952 19 of 1952), came into operation on 4/03/1952, and it was urged before the Industrial court on behalf of the Association that since the statutory scheme of provident fund would soon become compulsory it would not be advisable to adjudicate upon the respondent's claim for the specified items of gratuity at that stage. THIS argument was accepted by the Industrial court; it held that when the scheme envisaged by the new Act is introduced it would be possible to see from what date it would be operative, and that, if after the introduction of the said scheme it be found that a sufficient margin is left, it would then be open to the respondent and the Association to make a fresh application for the institution of a gratuity fund either for all the employees or for the benefit of such of them as will have to retire within the next few years. It was on this ground that the demand made by the respondent was rejected on 18/04/1952.

(3.) THAT takes us to ss. 116 and 116A. Section 116 provides, inter alia, for the period during which an award would be binding Section 116(1) lays down in regard to an award that it shall cease to have effect on the date specified therein, and if no such date is specified, on the expiry of the period of two months from the date on which notice in writing to terminate such an award is given in the prescribed manner by any of the parties thereto to the other party, provided that no such notice shall be given till the expiry of three months after the award comes into operation; in other words, the award cannot be terminated at least for three months after it has come into operation; thereafter it may be terminated as prescribed by s. 116(1). With the rest of the provisions of s. 116 we are not concerned in the present appeal. SeCtion 116A(1) prescribes, inter alia, that any party who under the provisions of s. 116 is entitled to give notice of termination of an award may, instead of giving such notice, apply after the expiry of the period specified in sub-s. (2) to the industrial court making the award for its modification. It is unnecessary to set out the other provisions of s. 116A. The award under appeal has been made by the industrial court on the application made by the respondent under s. 116A.