NATIONAL TOBACCO CO Vs. FIFTH INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THE petitioner Messrs National Tobacco Co. of India ltd. has challenged the order passed by the 5th Industrial Tribunal, West Bengal on a reference under Section 36a of industrial Disputes Act (hereinafter referred to as the Act ). It is necessary to refer to the circumstances which led to the said reference under the Act. The workmen of the petitioner company raised an industrial dispute on various conditions of service against the employer By an order dated 21. 7. 1961 the Government of west Bengal referred the dispute for adjudication to the 5th industrial Tribunal. One of the disputes being Issue No. 5 related to the dearness allowance to be paid for all categories of workmen. The Tribunal made an award on 25th April, 1965 which was published in the Calcutta gazette in its issue dated 10th June, 1965. The award fixed the rate of dearness allowance as per basis fixed by the Minimum Wage Committee and linked with the cost of living index. The workmen preferred an appeal against the said award under Art. 136 of the Constitution of India before the supreme Court. The Supreme Court by its judgment and order dated 18th october, 1968, modified the award of the Tribunal on this issue by directing that the dearness allowance variation should be at Re. 1/- for every five point with hundred as the Base for the year 1939 on parity with the award of the third Major Engineering Tribunal. There were other points also raised before the Supreme Court and the appeal was partly allowed and the award given by the Tribunal was varied to the extent indicated in the said judgment of the Supreme Court. Thereafter the workmen of the petitioner raised various disputes in interpreting the said award of the Tribunal in the light of the judgment of the Supreme Court. It appears from the order of the Tribunal that after several meetings between the petitioner and the Union representing the workmen it was decided that the disputes regarding the interpretation of the award on the question of dearness allowance in the light of the supreme Court's decision should be referred to the Tribunal for interpretation under Section 36a of the Act. The government was thereafter moved and the present reference under Section 36a of the Act was made to the Tribunal on the following issues : -"what is the exact interpretation of the award of the 5th Industrial Tribunal published at pages 492-505 of the calcutta Gazette part 1c dated the 10th june, 1965 over issue No. 5 i. e. D. A for all categories of workmen, in the light of the judgment of Hon'ble Supreme Court of India dated the 18th October, 1968"

(2.) ALTHOUGH on a joint representation the dispute was referred under section 36a of the Act to the Tribunal curiously enough when me matter came up for hearing the petitioner raised a preliminary objection as to the maintainability of the reference. It was contended before the Tribunal that the award having been merged in "the judgment of the Supreme Court, the reference under Section 36a for the interpretation of the award is incompetent. The Tribunal negatived that contention. The present rule nisi is directed against the said order of the tribunal.

(3.) AT the time of the hearing of this rule the learned Counsel for the petitioner reiterated the same contention which was urged before the Tribunal. It has been contended before me that when an appeal has been preferred, under Art. 136 of the Constitution against the award of the Tribunal the: judgment of the Supreme Court is the operative order and the award of the tribunal has ceased, to be to award operative under the law. Under Section 36a of the Act, if there is any difficulty or doubt as to the interpretation of any provision of an award, the government may refer the question to the Tribunal. In the present case as the award has ceased to be operative as an award any reference on the interpretation of any provision of such an award is incompetent and without jurisdiction.