Dua, J. - (1.) The short but important point raised in these two appeals by special leave relates to the validity of that part of the award of the Industrial Tribunal, Maharashtra, Bombay, by which the demand for vacation allowance of the workmen of the appellants Messers Polychem Ltd., Bombay, at the same rate as is granted to its higher staff both at the head Office and at its Chembur plant, was allowed. These two appeals are directed against the impugned award in two references under Section 10 (1) (d) of the Industrial Disputes Act, 1947, one of which (Ref. No. 284 of 1968) related to the demands of the head Office staff and the other (Reference No. 19 of 1969) to the workmen of Chembur plant.
(2.) The impugned portion of the award dated June 9, 1970, reads as under: "The only other demand which is now common to both the references is the demand for the vacation allowance. It appears that the company pays to its officers or other staff drawing Rupees 600 and more as basic wage one month's salary for vacation in case his leave exceed 15 days and is not accumulable. The demand of the workmen is that the minimum should be Rupees 300 and maximum Rupees 2,000. It is pointed out for the company that this was refused by the Tribunals in Burmah Shell and Voltas. The Union on the other hand contended that it was allowed in the banks and refineries by settlements though refused by the Tribunals. The plea of discrimination, it was pointed out, has been rejected by the Tribunals (See Parke Devis, ICR 1966 p. 151 and Alembic Chemical (1961) 1 Lab LJ 328 ). I, however, feel that this company can afford to pay this allowance to its workmen and avoid dissatisfaction. In socialistic Countries this is considered as an amenity to the workmen which should be provided such as subsidized or free vacation at health resorts. The ideal of wage fixation is the living wage while the national ideal envisaged in the constitution is a Socialistic State. The company can join others as the trend seems to be appearing in this region. It ensures more contended and healthy workmen. I therefore award vacation allowance to the workmen at the same rate as the staff with the same conditions."
(3.) The appellant's learned counsel, Shri S. V. Gupte, challenged this portion of the award on the ground that there is no evidence in support of the conclusions arrived at by the Tribunal and that it proceeds on grounds which are irrelevant and contrary to the settled principles relating to Industrial disputes. Nowhere in the region is vacation allowance granted in similar Industries and there is thus no comparable instance, contended the counsel, adding that the senior assistants in the present case had also not pressed their claim to vacation allowances. It was further urged that workmen in the appellant's Industry get various other amenties like, dearness allowance, according to the revised textile rates, overtime wages, lunch allowance (not allowed to officers), gratuity (with qualifying period of 5 years as against 15 years for officers), uniforms and medical facilities. Our attention was drawn to a prepared statement produced before us on behalf of the appellant for showing the difference in the pay packet of workmen employed at the appellant's head office as a result of the award given in Reference No IT-284/68. The respondent did not accept this statement saying that it was based on the interpretation placed by the appellant to support its case. In regard to overtime allowance and other facilities referred to by Shri Gupte, the learned counsel relying, inter alia, on another statement relating to facilities accorded to the workmen in 1970-71 produced before us, submitted that the workmen were getting numerous other benefits not available to officers. This submission was, however, sought to be founded on material not on the Court record. The learned counsel strongly contended that the real criterion should have been to look to the overall pay structure of the workmen in the light of the standard prevailing in similar industries in the same region. Mere capacity of the appellant to pay should not be the sole criterion he added. Reference was made to the decision of this Court in Remington Rand of India Limited v. The Workmen, C. A. Nos. 856 of 1968, 1475 and 2110 of 1968, D/- 10-12-1968 (SC) where it was observed: "As regards the first ground, it is true that in the present case there was no question of the company being unable to bear the additional burden of lunch allowance. But the fact that an employer is able to bear the burden is not the criterion. The foundation of the principle of industry-cum-region is that as far as possible there should be uniformity of conditions of service in comparable concerns in the industry in the region so that there is no imbalance in the conditions of service between workmen in one establishment and those in the rest. The danger otherwise would be migration of labour to the one where there are more favourable conditions from those where conditions are less favourable. Therefore,. The mere fact that a particular concern can bear an additional liability would by itself be no ground to impose upon it such extra obligation. Equally important is the fact that the wage structure prevailing in the appellant company is undisputably fair and the dearness allowance paid to the workmen has been, as aforesaid, linked with the index of cost of living. These must take care of the rise in the cost of living from time to time. If therefore, the company were to be compelled to pay lunch allowance to all workmen including those who work at the offices it would in fact mean a double provision for the constituent of the cost of food already provided for in the wage scales and the rates of dearness allowance. The force of this aspect was recognised by this Court in Mcleon and Co. Ltd. v. Workmen, (1964) 5 SCR 568 at page No. 571 ". It was said on behalf of the respondents that in the case cited there was no discriminatory treatment in the same concern among the employees of different grades of salaries at the same place. The requirements of providing lunch to those who could not return to the office from outdoor work outside the city limits, as was the fact in the cited case, according to the respondents, furnish a distinguishing feature in that case from the present. Next reliance was placed by Shri Gupte on the following observations in Alembic Chemical Works Co. Ltd. v. The Workmen, (1961) 3 SCR 279 at page No. 306 : "Then it is urged that the provision made by the award for privilege leave introduces discrimination between the clerical staff covered by the present reference and operatives covered by the earlier awards made by the same Tribunal. We were told that operatives had made a similar claim for privilege leave before the same Tribunal and the said claim had been rejected. The argument is that the provision for privilege leave made by the present award would create discontent amongst the operatives to whom similar leave has been denied, and that would disturb industrial peace. we are not impressed by this argument. It is not seriously disputed that a distinction has generally been made between operatives who do manual work and clerical and other staff:in fact the appellant's standing orders themselves make different relevant provisions for the two categories of its employees. It is also not disputed that in practice such distinction is made by comparable concerns, and awards based on the same distinction are generally made in respect of the two separate categories of employees. We are, therefore, unable to appreciate the argument that in granting privilege leave to the present staff the Tribunal has either over-looked its earlier award or has made a decision which suffers from the vice of discrimination. The practice prevailing in comparable concerns and the trend of awards both seem to show that a distinction is generally made between the two categories of employees, and since the said distinction is perfectly justifiable no question of discrimination can arise." According to the respondents the distinction between operatives doing manual work and cerical and other staff may justified but that is not the case here. Besides, in the reported case this Court, in its concluding part said, that it was not satisfied that case for interference under Article 136 had been made out whereas in the present case the appellant wants this Court to interfere and reverse the impugned part of the award on the ground that it is grossly erroneous and unjust. Reference was then made on behalf of the appellant to the decision in Delhi Cloth and General Mills Co., Ltd., v. Their Workmen, (1969) 2 SCR 307 , emphasis being laid on the following passage at page No. 327: "But in the branch of law relating to industrial relations the temptation to be crusaders instead of adjudicators must be firmly resisted. It would not be out of place to remember the statement of the law made in a different context - but nonetheless appropriate here- by Douglas, J., of the supreme Court of the United States in United Steel Workers of America v. Enterprise Wheel and Car Corporation, (1960) 363 US 593: '.........as arbitrator .....does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.' We may at once state that we are not for a moment suggesting that the law of industrial relations developed in our country has proceeded on lines parallel to the direction of the law in the United States.";