SHELAT - (1.) , J. This appeal, by special leave,, is against the judgment of the High Court of Bombay allowing the writ petition filed by respondent 1 against the dismissal by the Labour Court of his application for dearness allowance made against the appellant company under section 33C (2) of the Industrial Disputes Act, 1947.
(2.) THE facts leading to the said application are as follows: Respondent 1 first joined the service of M/s Volkart Bros. on 3/03/1930. On merger of that concern with the appellant-company in September 1954, he became the employee of the latter. In September 1954, the appellant-company took over the staff of M/s Volkart Bros. on the same terms and conditions as were applicable to them when they were the employees of Volkart Bros. During the period when respondent 1 was in the employment of M/s Volkart Bros., he was governed by a scheme of Dearness Allowance framed with the consent of the parties and incorporated in an award (hereinafter referred to as the Bakhale Award) dated 26/05/1951 in I. T. No. 76 of 1950. THE scheme provided both maximum and minimum dearness allowance, viz. Rs. 165 and Rs. 60/- respectively, and subject to them the dearness allowance payable was 75 Per Cent for the first hundred, 37 1/2 per cent for the second hundred and 18 per cent for the balance of the wages. The said scheme was altered by a circular, dated 16/11/1953. The two principal changes in the altered scheme were: (1) an increase in the minimum and maximum from Rs. 60.00 and Rs. 165.00 to Rs. 70.00 and Rs. 300.00 per month respectively, and (2) linking the dearness allowance to the cost of living index in the bracket 371-380 and providing for adjustment of dearness allowance by certain percentages whenever the index moved by ten points. On 18/08/1956, a charter of demands was served on the company on behalf of the workmen. Demand No. 5 related to dearness allowance and was as follows: "The scheme of dearness allowance at present in force should be revised on the following lines with effect from 1/01/1956." Then followed the lines on which the scheme was sought to be revised, namely, the percentages at which the dearness allowance should be paid. The parties arrived at a settlement dated 30/08/1957, under which the company agreed to pay dearness allowance at 100 Per Cent on the first hundred with 4 Per Cent on every ten points' movement in the index, 50 per cent on the second hundred with 2 per cent on every ten points' movement in the index and 25 per cent for the balance with 1 per cent on every ten points' movement in the index of cost of living. The minimum dearness allowance was raised to Rs. 75.00. It may be noted that there was no reference as to the maximum either in demand No. 5 or in the settlement. The case of respondent 1 was that the scheme of dearness allowance as prevalent till then was abandoned, a fresh scheme was devised in which there was no provision for any maximum and it was, therefore, that no reference to any such maximum was made in the settlement. The company's case, on the other hand, was that the scheme of dearness allowance was not given up, that the demand was only for revision of the existing scheme, viz., to the extent of revising the percentages only on the three slabs of wages, and therefore, the settlement mentioned the alterations made in the scheme, but not the maximum as there was neither a demand for its deletion, and consequently, no settlement regarding it.
(3.) ACCORDING to the company, the maximum was raised from Rupees 300/- to Rs. 350.00 by a circular, dated 12/03/1959. That circular was as follows; "It has been decided to raise the present maximum Dearness Allowance payable to Rs. 350.00 per month which will apply uniformly to all Offices in India with effect from 1/04/1959. Dearness Allowance will continue to be paid on the usual basis at the rates applicable at each place subject to the maximum stated above. The case, however, of respondent I was that the increase in the maximum amount of dearness allowance applied only to the officers of the company and not to the workmen, that no notice of such a change was ever served upon the union and that there was in fact no change made in 1959 in the scheme of dearness allowance, which remained without any provision as to the maximum. On 16/01/1961, the union served the company with a fresh charter of demands , demand No. 9 whereof related to dearness allowance. That demand was in the following words: JUDGEMENT_479_2_1971Html1.htm The charter of demands was referred to the tribunal presided over by Mr. Meher who gave his award (hereinafter referred to as the Mehar Award), dated 18/02/1963. Paras 33 to 35 of the award dealt with dearness allowance. Para 33 first set out the union's complaint that "the existing dearness allowance scheme" did not adequately neutralise the rise in the cost of living. It then set out the existing scheme as follows: "For the index number 371-380 JUDGEMENT_479_2_1971Html2.htm Minimum dearness allowance Rs. 75.00; variation for 10 points Rs. 2." Para 3.4 set out the company's defence. Para 35 set out the changes made by the award in the following terms: "I revise the wxiisting scheme of dearness allowance as follows: The variation for the first slab should be 5 per cent, for the second 2 1/2 per cent, and the third 1 1/4 per cent, and on the minimum dearness allowance Rs. 3. The minimum dearness allowance at cost of living index 371-380 should be increased form Rs. 75 to Rs. 77. the dearness allowance should be revised at this rate from 1/06/1962... ..." ;