GAJENDRAGADKAR, J. - (1.) AN industrial dispute between the appellant, Associated Power Company, Ltd., and the respondents, its workmen, was referred for industrial adjudication by the Government of West Bengal on 23 July, 1961. The dispute related to eight items of demand presented by the respondents. After hearing the parties and taking into account the evidence led by them the tribunal made its award on 5 September, 1963. It is against this award that the appellant has come to this Court by special leave.
(2.) ON behalf of the appellant Sri Viswanatha Sastri has raised before us three points. He does not dispute the fact that the increase in the dearness allowance awarded by the tribunal substantially seeks to put them on a par with the appellant's employees in Dishergarh. The respondents are the workmen employed by the appellant at Sheebpur. At both places the industrial work carried on by the appellant is similar in character, and in dealing with the claim made by the respondent for an increase in their dearness allowance the tribunal was considerably influenced by the consideration that the Dishergarh an agreement had been reached between the appellant and its employees working there in respect of dearness allowance on 17 May, 1961. The tribunal found that the employees working with the appellant at the two respective centers were transferable from one to the other and so it held, and we think rightly, that there should be no disparity or difference between the dearness allowance paid by the appellant to its employees at Dishergarh and that paid at Sheebpur. Sri Sastri, however, contends that in trying to bring about uniformity in the rate of dearness allowance payable to the respondents the award has in turn introduced some disparities and they should be corrected. Sri M. K. S. Sastri, who appears for the respondents cannot reasonably resists the appellant's contention that if dearness allowance has to be paid by the appellants to its employees at the same rates and on the same terms there should be no difference in favour of the respondents either at Sheebpur or at Dishergarh. That being so, we think it is right that the disparity introduced by the award in that behalf should be corrected and that can best be so done by issuing a general direction that the appellant should pay to its employees at Sheebpur dearness allowance at the same rates and in the same manner as it pays to its employees at Dishergarh.The next contention which Sri Sastri has raised in regard to the dearness allowance is that this has been ordered to be paid retrospectively from 1 July, 1961. The reference in question was made on 23 July, 1961 and the award was pronounced on 5 September, 1963. Having regard to the fact that the agreement between the appellant and its employees at Dishergarh was signed on 17 May, 1961 the tribunal thought that the dearness allowance and other directions issued by it in the present award should take effect from 1 July, 1961. While conceding that normally such a direction would justifiably be treated as reasonable Sri Sastri urges that this direction would introduce some difficulties so far as the appellant is concerned. He has invited our attention to the fact that the appellant is governed by the provisions of the Electricity Supply Act, 1948 (Act 54 of 1948), and basing himself on the third proviso to Cl. (l) of Sch. VI of the said Act Sri Sastri points out that the rates for the year 1963 having been fixed by the Government on 27 July, 1963 it would not be possible for the appellant to revise the said rates during the current year. If the appellant had known that its liability to pay dearness allowance was going to be increased as from 1 July, 1961 the appellant may have taken appropriate steps to obtain the sanction of the Government to increase its rates; but since that cannot now be done for current it would not be possible for the appellant to pass on the additional burden to the consumers. So far as provisions of Sch. VI are concerned what Sri Sastri contends is no doubt true; but the fact that the appellant may not be able to pass on the burden to the consumers cannot be regarded as decisive in this matter even if it is held to be relevant. Having made an agreement with its Dishergarh employees as early as 17 May, 1961, as a prudent manager of an industrial undertaking the appellant should have foreseen the effect of the reference; but apart from that it is not the case of the appellant that its financial position would not enable it to bear the burden imposed by the retrospective operation of the relevant provisions in the award. Sri Sastri stated before us that the retrospective operation of the dearness allowance may involve an expenditure of Rs. 40, 000. It is impossible to hold on the record that the appellant would not be able to bear this burden even if it is not permitted to raise its rates during the current year.Besides, since the revised rates are going to be effective from 1 July 1961, it would never have been possible for the appellant to revise its rates retrospectively in that sense; and so the argument that the rates having been sanctioned on 27 July, 1963 make it difficult for the appellant to meet the burden can have no significance. The capacity to pay the additional burden was not dispute by the appellant before the tribunal and has not been before us either. Therefore, we do not think the argument raised by Sri Sastri that the retrospective operation of the dearness allowance should be set aside because of the relevant provisions of Sch. VI can succeed. The last point raised by Sri Sastri is in regard to the retirement age. The tribunal has ordered that the retirement age should now be fixed at 58, and that on the whole correctly represents the present trend of industrial adjudication in that part of the country on the question of the age of retirement. Therefore, Sri Sastri has not been able to challenge this part of the award seriously. He, however, cotends that the direction given by the award should not be made applicable to eight persons who have retired between December 1961, and August 1963. Normally, when an industrial award increases the age of retirement such increase takes effect prospectively from the date when the award becomes operative. We therefore think that Sri Sastri is right in urging that the eight employees' names in the petition in Para. 30 who have been retired between December 1961 and August 1963 and have received all retrial benefits due to them should be excluded from the operation of the award in respect of the age of retirement.
(3.) THERE is another point which has been made by Sri Sastri in regard to the age of retirement, and that is similar to the point which he made about dearness allowance. It is necessary that, as in the case of dearness allowance, so in the case of the age of retirement there should be no disparity between the relevant conditions and terms in that behalf; and so, we direct that the retirement age which has been fixed by the tribunal at 58 in the case of Sheebpur employees should be subject to the same terms and conditions as are embodied in the agreement made by the appellant with its Dishergarh employees. There is one exception to be made in that behalf and that is that the direction in the award in regard to the retirement age will not be controlled by the terms as to the duration of the agreement specified in the agreement. The award will take effect as all industrial awards take effect under the Industrial Disputes Act.What we have said about the dearness allowance and the retirement age will be equally true about the other amenities and financial benefits which the appellant at present gives to its employees.;