K. Subba Rao J. - (1.) These appeals are by Special Leave from the Award by G. Palit, Judge, Fifth Industrial Tribunal, West Bengal, in the matter of a dispute between M/s. Bengal Chemical and Pharmaceutical Works Limited, Calcutta, and their employees, represented by Bengal Chemical Mazdoor Union, Calcutta.
(2.) The Government of West Bengal by its order dated September 13, 1956, referred the following dispute between the parties referred to above to the Second Industrial Tribunal under S. 10 of the Industrial Disputes Act, 1947 (Act 14 of 1947), hereinafter referred to as the Act. "Is the demand of the employees for increase in Dearness Allowance justified If so, at what rate -. The said Act was amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (36 of 1956), which came into force on August 28, 1956. On April 9, 1956 the Government made an order transferring the said dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal. The Fifth Industrial Tribunal, after making the necessary inquiry, made the award on August 26, 1957 and it was duly notified in the Calcutta. Gazette on September 26, 1957. As a mistake had crept in, the award was modified by the Tribunal by its order dated the 29th November 1957; and the modified award was published in the Calcutta Gazette on the 29th November 1957. Under the award the Tribunal held that there was a rise in the cost of living index and that to neutralise the said rise the employees should get an increase of Rs. 7 in dearness allowance on the pay scale up to Rs. 50 and Rs. 5 on the pay scale above Rs. 50. On that basis the dearness allowance payable to the employees was worked out and awarded. The correctness of the award is questioned in these appeals. The Company preferred Civil Appeal No. 125 of 1958 against the award in so far it was against it and the Union preferred Civil Appeal No. 164 of 1958 in so far it went against the employees. For convenience of reference, the parties will be referred to in the course o the judgment as the Company and the Union.
(3.) Learned Counsel for the Company raised before us the following points:(1) The order dated April 9, 1957, made by the Government transferring the dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal was illegal; (2) the previous award made by the Tribunal between the same parties on April 26, 1951, and confirmed by the Labour Appellate Tribunal by its order dated August 30, 195l, had not been terminated in accordance with the provisions of S. 19(6) of the Act and therefore the present reference was bad in law and without jurisdiction; (3) there was no change in the circumstances obtaining at the time the previous award was made and those prevailing at the time of the present reference as to justly making out a new award; (4) the Tribunal went wrong in taking the rise in the cost of living index between the years 1954 and 1957 instead of taking the fluctuating rate in the index between the date of the earlier award i.e., August 30, 1951, and the date of the present reference in the year 1957; (5) the Tribunal went wrong in so far as it based its decision of the Second Engineering Award of 1950 which was already considered by the Tribunal in its earlier award of the year 1951; and (6) in any event, in computing the amount, the Tribunal applied wrong criteria.;