VENKATARAMA AIYAR, J. - (1.) THIS is an appeal by special leave against the award of Industrial Tribunal, Punjab, Jullundur, dated April 16, 1959, made in Reference No. 40 of 1958. The appellant is a Public Limited Company engaged in the manufacture of cement. On April 8, 1955, the appellant and its workmen entered into an agreement Ex. A-6, settling the matters in dispute between them and fixing inter alia grades of several categories of workmen and their scales of wages. The agreement provides that the settlement should be binding on both the parties for a period of two years commencing from April 8, 1955 but that the Union would have the right to move for reconsideration of the grades, if that was recommended by the Government, Wage Board.
(2.) IT is common ground that the Union terminated this agreement as from April 8, 1957, in accordance with Section 19 of the Industrial Disputes Act, 1947, hereinafter referred to as "the Act" and then made a demand on the management for revision of the agreement in respect of the grades of the workmen and certain allowances. On May 19, 1957, the appellant and the Union referred their disputes to the decision of two arbitrators but as they could not agree they wrote to the Government of Punjab on August 30, 1957, to refer the matter to the Industrial Tribunal, as an umpire. Before any action was taken on this, both the parties applied to the Punjab Government on April 5, 1958, under Section 10(2) of the Act for referring the disputes to a Tribunal, and on July 24, 1958, the Government referred them to the Industrial Tribunal, Punjab, Jullundur, for adjudication under Section 10(1)(d) of the Act. The Tribunal pronounced its award on May 8, 1959, and being dissatisfied with it, the appellant has preferred this appeal against the same with the leave of this Court. Three contentions have been pressed before us in this appeal: (1) The Tribunal which heard the reference was not validly constituted; (2) The award in so far as it revised the grades of workmen is illegal and erroneous; (3) The award of an additional allowance of Rs. 5/- per mensem to the shift workers is not justified. These contentions will now be considered in their order. (1) Taking up the first contention that the Tribunal was not validly constituted, the relevant facts are that on April 28, 1953, the Government of Punjab issued a Notification whereby it constituted an Industrial Tribunal under Section 7 of the Act and appointed Shri A.N. Gujral as its sole member and presiding officer under Section 7(3) (c) of the Act. Shri Gujral continued to hold this office at all material times. Parliament then enacted the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 36 of 1956, whereby it introduced several amendments in the Industrial Disputes Act, 1947. This Act which came into force on March 10, 1957, repealed Section 7 in the principal Act, and substituted in its place Sections 7A, 7B and 7C. On April 19, 1957, the Government of Punjab issued a Notification under Section 7A constituting a new Tribunal and appointed Shri A. N. Gujral as its sole member and presiding officer. It is the award made by this Tribunal that is the subject-matter of the present appeal. Section 7A(3) omitting what is not relevant for the present discussion runs as follows: "A person shall not be qualified for appointment as the presiding officer of a Tribunal unless (a) he ........ (b) he has held the office of the Chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950, or of any Tribunal, for a period of not less than two years." It was under this provision that Shri A. N. Gujral who had held the office of the President of the Industrial Tribunal, Punjab, from April 28, 1953, was appointed as the presiding officer of the new Tribunal. It is the contention of the appellant that the appointment of Shri A. N. Gujral as President of the Tribunal on April 28, 1953, was invalid, because according to Section 7(3) (c) which is the material provision it is only a person who is ''qualified for appointment as a Judge of a High Court" that could be appointed as a member and Shri A. N. Gujral was not qualified to be appointed as a Judge of the High Court on that date as he was more than sixty years of age, having been born on June 4, 1892 and that as the appointment of Shri A. N. Gujral as member on April 28, 1953, was invalid the period during which he functioned as the President of the Industrial Tribunal constituted under Sec. 7 cannot count for the purpose of Section 7A(3)(b). The question whether a person who has attained the age of sixty could validly be appointed as a member of the Tribunal under Section 7(3)(c) came up for consideration before this Court in The Atlas Cycle Industries Ltd. v. The Workmen (Civil Appeal No. 188 of 1961 decided on February 8, 1962) where also the validity of the appointment of Shri A N. Gujral under the Notification dated April 28, 1953, aforesaid was in question. The present appeal was heard along with Civil Appeal No. 188 of 1961 and by our Judgment in that appeal we have held that on the construction of Section 7(3)(c) a person who had attained the age of sixty could validly be appointed as a member. Following that decision we must hold that Shri A. N. Gujral was validly appointed to the Industrial Tribunal on April 28, 1953, and that, in consequence, he was duly qualified to be appointed as presiding officer of the Tribunal under Section 7A(3)(b). (2) We shall now proceed to consider the contention of the appellant that the revision of the grades of workmen and their scale of wages was illegal and erroneous. The argument of the appellant is that there having been an agreement between the parties, Ex. A-6, fixing the categories of workmen and their scales of wages, the Tribunal should not have modified it without a finding that there had been a change of circumstances. Reliance was placed on the observation of this Court in Burn and Co., Calcutta v. Their Employees (1956 S.C.R. 781, 787) as supporting this contention. There a dispute between the management and the workmen with reference to the fixation of fair wages was referred for adjudication to the Industrial Tribunal under Section 10(1) (c) of the Act and the Tribunal gave its award on a consideration of the evidence adduced by the parties. That award was in operation under Section 19(3) of the Act until July 12, 1951, when it was terminated by the Union under Section 19(6). Thereafter the Union made a demand for higher wages as from July 12, 1951, and as the management declined to grant the request, there arose an industrial dispute, and, that was again referred by the Government for adjudication to an Industrial Tribunal. It was found by the Tribunal on the evidence adduced by the parties that there was no change of circumstances since the last adjudication was made, and on that the question was raised whether the award of the Tribunal for the previous year was binding on the parties as res judicata. This Court held that though Section 11 of the Civil Procedure Code was not as such applicable, the principles of res judicata underlying that section were of wider application and observed: "And there are good reasons why this principle should be applicable to decisions of Industrial Tribunals also. Legislation regulating the relation between Capital and Labour has two objects in view. It seeks to ensure to the workmen who have not the capacity to treat with capital on equal terms, fair returns for their labour. It also seeks to prevent disputes between employer and employees, so that production might not be adversely affected and the larger interests of the society might not suffer. Now, if we are to hold that an adjudication loses its force when it is repudiated under Section 19(6) and that the whole controversy is at large, then the result would be that far from reconciling themselves to the award and settling down to work it, either party will treat it as a mere stage in the prosecution of a prolonged struggle and far from bringing industrial peace, the awards would turn out to be but truces giving the parties; breathing time before resuming hostile action with renewed vigour. On the other hand, if we are to regard them as intended to have long term operation and at the same time hold that they are liable to be modified by change in the circumstances on which they were based, both the purposes of the legislature would be served." (pp. 789-790).
(3.) ON the very principle of it, this decision, can have application only where there is an adjudication by the Tribunal on the merits. In the present case there has been no adjudication by any Tribunal but only a settlement between the parties. That would, of course, be binding on them but only to the extent provided in the agreement itself. Here the agreement was to be in operation for two years. It provides for the revision of the terms even earlier in accordance with the decision of the Wage Board. The agreement, therefore, becomes spent on its own term, on April 8, 1957, and that is how the parties understood it as is clear from their conduct in referring the disputes including the one for revision of grades first to the decision of arbitrators and then, that failing, to the Government of Punjab, under Section 10(2) of the Act. We must accordingly hold that it was competent to the Tribunal to revise the grades for the period subsequent to the agreement even if there was no proof of change in circumstances. It is next argued that in deciding that the existing grades should be revised, the Tribunal has failed to consider one of the points raised by the appellant which was thus stated in its statement: "Though a small unit its scales are higher than those in the bigger surrounding factories." It is urged that this omission vitiates the finding of the Tribunal on this question. It is true that the Tribunal does not expressly deal with this point in its award. In view of this we have examined the record with a view to satisfy ourselves whether that has resulted in failure of justice. The Union has adduced considerable body of evidence as to the grades and scales of wages in this industry with a view to show that existing scales required revision. Exs. A-1, A-2 and A-5 are statements of the scales of wages in the cement industry. The Secretary of the Union Shri Madanlal has also given evidence on this matter as A.W. 3. Besides filing the above documents he stated that the wages for some of the skilled workmen were less than what were paid in other factories. He also filed Ex. A-10 which is a comparative chart of wages prevailing in certain industries. As against this there was practically no evidence on the side of the appellant. Shri R. L. Agrawal, A.W. 2, who has been the Manager of the appellant's concern for the last nine months stated in his examination- in-chief "our scales and grades are higher than those prevailing in other cement factories". ;