P. B. Gajendragadkar, J. - (1.) This is an appeal by the Calcutta Electric Supply Corporation Ltd., (hereinafter called the appellant) by special leave against the award directing the appellant to provide medical treatment to the families of its employees subject to the limitation that no employee would be entitled to claim medical treatment which would cost more than one month's salary due to him. This award was passed in an industrial dispute between the appellant and its workmen and others (hereinafter called the respondents). The dispute related to 14 items and it was referred to the Industrial Tribunal by the Government of West Bengal on 24-5-1954. After the notification referring this dispute to the industrial tribunal was issued the said Government issued another notification on 7-8-1954, by which certain other items were added thus raising the total number of items in dispute to 22. One of these items was medical aid. It is under this item that the impugned part of the award has been passed. This part of the award was challenged by the appellant by preferring an appeal before the Labour Appellate Tribunal; but the plea raised by the appellant before the Labour Appellate Tribunal failed and the award was confirmed. That is how the appellant has come to this, Court by special leave against the direction in question.
(2.) Two points have been raised before us by Mr. B. Sen on behalf of the appellant. He contends that the tribunals below exceeded their jurisdiction in issuing the impugned direction against the appellant because the said direction covers a matter which was not included in the reference; and he also argues that if the said matter is held to have been included in the reference the reference is bad since the said matter cannot be said to give rise to an industrial dispute within the meaning of S. 2(k) of the Industrial Disputes Act, 1947 (14 of 1947).
(3.) There is no doubt that these objections have not, been considered either by the award of the tribunal or by the decision of the Labour Appellate Tribunal; but when the appellant applied for special leave to this Court it had filed an affidavit made by its lawyer Mr. Mullick in which it was specifically averred that these contentions had been urged before the Labour Appellate Tribunal and that even before the tribunal the latter point had been specifically taken. Mr. Kumar, for the respondents, has strenuously argued that the appellant should not be permitted to raise these contentions for the first time before this Court. He has relied upon the fact that in the statement of the appellant before the tribunal these points are not indicated nor are they mentioned in the memorandum of appeal filed by the appellant before the Labour Appellate Tribunal. He suggested that if there points had been taken before the tribunals below the award and the decision would have referred to them. Prima facie there is considerable force in this argument; but on the other hand Mr. Kumar does not dispute the correctness of the statement made by Mr. Mullick in his affidavit filed in this Court; and so we must assume that the points were taken before the tribunals below as stated in the affidavit. That is why we cannot uphold Mr. Kumar's objection at the appellant should not be allowed to raise those points before us.;