- (1.) These are two appeals by Special Leave. Civil No. 1602 of 1966 is by the Management against the Award passed by the Industrial tribunal on a reference made by the government for categorisation of workers, their fitments, fixation of workload, the demand for increase of Rs. 10. 00 to be given to every worker over the basic wage, implementation of weightage, dearness allowance, the demand for giving grades and for giving retrospective effect, etc. Civil No. 1603 of 1966 by the workmen is against the same Award for disallowing the increase of Rs. 10. 00 and the weightage of Rs. 5. 00 and also against the fitment of certain categories of workers. The tribunal held that the financial capacity of the appellant was not such as to justify increase of Rs. 10. 00 to all the workers over the basic wage and dearness allowance. On the safe grounds it also disallowed the payment of Rs. 5. 00 to workmen for implementation of the weightage recommended by the Wage Board for Sugar Industry. These were the subject-matter of Issues Nos. 2 and 5 of the reference made to the tribunal. So far as Issue I-A is concerned, it held that categorisation of workers and their fitments and -workload should be in accordance with the recommendations of the Wage Board for Sugar Industry and even as to these it decided in favour of the management in respect of certain categories of workers but in respect of some others, it gave relief to the workers. The employers appealed against that part of Issue I-A which was decided against them, while the Workmen's Appeal is against the finding of issues Nos. 2, 5 and Part of 1 (a) which was against them. We will first take up the appeal of the Management.
(2.) It appears that the Kirlampudi Sugar Factory was started in 1951 as a small unit and later was increased to a larger crushing capacity of 1,000. 00 tons which according to the Tariff Commission would not be considered economically profitable, though according to the Sugar Wage Board it would be. By 1963, the factory get into financial embarrassment as it had to pay heavy debts to the government on account of Sugar cess, cane prices payable to the growers and income-tax. These demands it is alleged practically brought the factory to a stop, when in the middle of 1963 the present management took over the factory on the specific assurance from the government that they will provide for and give all facilities to enable them to run the factory. After the management was taken over there were disputes between the management and workers with the result that they referred various matters for adjudication including the claim for implementation of the Wage Board's recommendation which was alleged to have been implemented by the former management as early as 1961-62. It was the case of the workers that that implementation was not satisfactory and it was theirdemand that the Sugar Wage Board'1 recommendations should be implemented. The management raised a specific objection before the Industrial tribunal that the reference relates to a wholesale promotion of workers from one grade to the other under the guise of fitment under the Wage Board's recommendations which is illegal and without jurisdiction; and in any case the question of promotion, categorisation and fitment is a managerial function which the tribunal cannot interfere unless it can be established that the management acted mala fide or it resorted to unfair practices. It was further pleaded that the factory 'had not the financial capacity to implement the demand. One of the grievances of the appellant was that though the tribunal found that it had not the financial capacity to meet the additional burden of the demands made by the workmen it granted large scale promotions which it had no jurisdiction to grant. Despite this the management states that it had implemented the Award in most of the cases and challenged it in respect of some only.
(3.) It may be mentioned that the central Wage Board for Sugar was appointed in terms of Paragraph 25 of Ch. XXVII of the Second Five year Plan. This Wage Board for Sugar Industry divided India into 4 regions and each region included every State containing even a single unit unlike that adopted by the Tariff Commission which in its Report on the cost structure left out some of the States from the 4 divisions. It then considered the wage structure, categorisation etc. for each of the said regions, in relation to a fair cross-section of the industry in each of the regions. In comparison with this method, the Jute Wage Board had taken India as a whole and fixed a uniform rate for the Jute Industry. The first contention which has been urged is that the recommendations of the Wage Board were not binding in view of the fact that it was not a Statutory Board but was only a recommendatory one and the tribunal could not implement them as a whole because it had recommended that fitments and categorisation should be affected by recourse to Tripartite machinery. The case of Workmen of Shri bajrang Jute Mills Ltd. v. Employers of Shri Bajrang Jute Mills Ltd. is cited as an authority for the proposition that as the procedure prescribed therein was not valid, the recommendations of the Wage Board were declared to be invalid and inapplicable to the Jute Industry. The learned Advocate on behalf of the Respondents raised a preliminary objection to the maintainability of this contention as this issue had neither been referred to the tribunal, nor had it been urged before it nor had a ground been taken in the Special Leave petition. He seeks to distinguish the! case of the Bajrang Mills, as in that case there was a specific issue while there is none in this case. In answer it is pointed out that the contention raised on behalf of the Respondents is implicit in issue I (a) which is as follows: " I. (a) Whether the demand for categorisation of workers and their fitment and workload should be in accordance with the recommendations of the Wage Board for Sugar Industry is justified. "the appellant had in its statement before the tribunal in Para 9 categorically challenged the recommendations of the Wage Board in these words: "it may be noticed even though the Wage Board recommendations are not binding, in spite of huge losses the management went out of the way and implemented the same. " In the Special Leave Petition also in Paragraph 2 the appellant had challenged the jurisdiction of the tribunal "to go into the question of the capacity to pay of an individual unit in respect of one of therecommendations of the Wage Board for Sugar Industry when such recommendations had been made for the industry as a whole and agreed to by the management itself. ";