B.S.Bachawat, J. - (1.) This appeal arises out of writ proceedings relating to an industrial dispute between the employers B. N. Elias and Company, Private Limited, and associated concerns and their workmen represented by B. N. Elias and Co. Ltd. Employees Union. B. N. Elias and Company, Private Limited, has, at all material times, been a member of the Bengal Chamber of Commerce and Industry. Most of the members of the Bengal Chamber of Commerce and Industry adopted model terms of service for their clerical and subordinate staff calculated with reference to the middle class cost of living index. In 1948 industrial disputes between numerous concerns including the appellants and the workmen were referred to the Mercantile Tribunal. The award of the Mercantile Tribunal is dated the 17th February, 1949. Under that award the grade of the subordinate staff was Rs. 30--1--40--E.B.--1-50 and the dearness allowance as existing under the Bengal Chamber of Commerce scheme was maintained. The Mercantile Tribunal proceeded on the principle that the minimum total emoluments should be Rs. 60/- out of which at least Rs. 30/- should be the basic wages and directed that the minimum basic wages of a member of the subordinate staff should be pulled up to Rs. 30/- by deducting such amount from the dearness allowance as was required to make up the deficiency in the basic wages, provided the total emoluments were not below Rs. 60/-. After the expiry of the period of the operation of this award, the Bengal Chamber of Commerce recommended to its members that the dearness allowance of the subordinate staff should be linked with the rise and fall in the working-class cost of living index instead of the middle-class cost of living index. Thereupon, certain adjustments having been made pursuant to this recommendation the workmen raised disputes. By an order dated the 30th August. 1955, the Government referred to the Industrial Tribunal the industrial disputes between the appellants and their workmen regarding, inter alia, 'fixation of grades and scales of pay of all categories of workmen including clerks, typists, stenographers, telephone and dictaphone operators, subordinate staff etc.' The Industrial Tribunal by its award dated the 29th March, 1956, did not make any change with regard to the grade and scale of pay of the subordinate staff, holding that no revision was called for at that stage. Both workmen and employers appealed from this award. By its decision dated the 18th September, 1956, the Appellate Tribunal rejected the appeal of the workmen with regard to their demands relating to the subordinate staff observing that their total emoluments were quite satisfactory and did not call for any revision or interference. The Appellate Tribunal however modified the award with regard to certain other matters and accordingly by Section 16 of the Industrial Disputes (Appellate Tribunal) Act the decision of the Appellate Tribunal is deemed to be substituted for the award of the Industrial Tribunal and has effect for all purposes in the same manner and in accordance with the same law under which the award was made.
(2.) Subsequently, the workman represented by the respondent No. 2 raised disputes with regard to the dearness allowance of the subordinate staff. In April 1956, the Assistant Labour Commissioner called for a conference in which the representatives of B. N. Elias and Company, Private Limited and their workmen were invited to attend. There was a conference as called for. By a letter dated the 1st June, 1956, the Assistant Secretary to the Government of West Bengal informed the respondent) No. 2 that the dispute had been enquired into and that it appearing that the subordinate staff were well paid, the dispute did not deserve further intervention at this stage. In spite of this letter, we find that the Government by its order dated the 19th December, 1956 referred to the Second Industrial Tribunal the following disputes between B. N. Elias and Co. Ltd. and its associated concerns and their workmen. "(1) What should be the scale of dearness allowance of the subordinate staff? (2) In the event of any change in the existing rate, whether the subordinate staff should be paid the same with retrospective effect from the 19th September, 1950, i.e., the date from which they were governed by the working class cost of living index?" The employers thereupon lodged objections before the Tribunal questioning the order of reference and the jurisdiction or the Tribunal to proceed with the reference. By its order dated the 21st February, 1957, the Tribunal overruled those objections and decided that the reference was lawful and valid and that the Tribunal had jurisdiction to adjudicate on the issues and to make an award thereon. Thereupon on the 17th April 1957, the appellants made an application and obtained a rule nisi for the issue of appropriate writs of certiorari, prohibition and mandamus so that the Tribunal might be restrained from further proceeding with the reference. On the 21st February. 1958, Sinha J. discharged the rule nisi and dismissed the application. This appeal has been preferred from this order of dismissal.
(3.) Mr. Ginwalla appearing on behalf of the appellant contends that the order of reference dated the 19th December 1956 is arbitrary, capricious and mala fide and in abuse of the powers conferred by the Industrial Disputes Act, 1947, and as such a nullity.;