Grover, J. - (1.) THERE were certain industrial disputes in 1957 between the Management of Hotel Ambassador, the Petitioner, and its workmen and the Delhi State made a reference for adjudication to the Industrial Tribunal by means of a notification dated 15th October 1957. One of the points referred was - Whether scales of pay should be fixed for different categories of workmen and what directions are necessary in this respect. The Industrial Tribunal fixed the scales of pay of the workmen by means of an award dated 19th July 1958. It is mentioned in the petition that in view of the adoption in the Hotel Ambassador of the wage scale in the Cecil Hotel, the workmen did not press the demand for dearness allowance. The workmen, however, later raised a dispute relating to dearness allowance which was referred for adjudication by the Government by means of a notification dated 14th January 1960, the solitary term of reference being - Whether the workmen are entitled to payment of dearness allowance. If so, at what rate and from what date and what directions are necessary in this respect. The management of the Hotel raised a plea of res judicata which was rejected by the Tribunal which gave an award in respect of dearness allowance and it is that point alone on which the validity and legality of the award have been impugned before me.
(2.) MR . R.L. Anand, the learned Counsel for the Petitioner, submits that the Industrial Disputes Act, 1957 does not define "pay" but the definition of "wages" as given in Section 2 (rr) includes, apart from all remuneration etc. dearness allowance. It is contended that the previous reference in 1957 related to wages and, therefore, the question of dearness allowance was also included in that reference. As an award had already been given, it was not open to the workmen to ask for fixation of dearness allowance now. Mr. Anand relies on the meaning of the word "pay" given in Webster Dictionary, some of the meanings given are "remuneration"; "wages"; "salary" * * *. The argument is that the words "pay" and "wages" are synonymous and interchangeable and, therefore, the reference on the previous occasion should be regarded as one relating to wages which would include dearness allowance. The Industrial Tribunal in the award which has been challenged had stated that by the previous reference the issue raised was only with regard to the fixation of incremental pay scales for the several workmen and there was no item of reference regarding dearness allowance which was put into issue and on which any decision was given. Therefore, the principle of resjudicata could have no application. The other contention that the question of dearness allowance might and ought to have been raised at the stage of the previous reference by the workmen and since they had failed to do so, that would also attract the rule of resjudicata, was repelled by the Tribunal on the ground that the rule of "might" and "ought" appearing in Section 11 of the Code of Civil Procedure could not be made applicable to the facts of the present case. The decision of the Tribunal on this point may be stated in its own words: - Granting, that the workmen did not put forward their claim for grant of separate dearness allowance, in addition to basic wages, in the previous reference, there is no rule of law prohibiting the workmen from putting forward the said demand in subsequent proceedings, and my attention has not been drawn to any such rule of law or procedure. Mr. Anand submits that the view of the Tribunal is patently erroneous as the principles embodied in Section 11 would apply in their entirety. He has relied on Bum & Co. Calcutta v. Their Employees : 1956 S. C. R. 781, in which it has been laid down that although the rule of resjudicata as re enacted by Section 11 does not in terms apply to an award of an Industrial Tribunal, its underlying principle which is founded on sound public policy and is of universal application must apply. In that case the following observations of Venkatarama Ayyar J. at page 789 are noteworthy: - Are we to hold that an award given on a matter in controversy between the parties after full hearing ceases to have any force if either of them repudiates it under Section 19(6), and that the Tribunal has no option, which the matter is again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, and come to a fresh decision. That would be contrary to the well recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a lull enquiry should not be permitted to be re -agitated. It is on this principle that the rule of res judicata enacted in Section 11 of the Code of Civil Procedure is based. It is clear that in the case before their Lordships the question was of a different nature and watt was laid down by them was that a decision once given on a matter in issue should not be permitted to be re -agitated. The question, therefore, is whether the matter in issue before the Tribunal at the stage of the previous reference was the same as the one before the Tribunal in the reference in question. There is well marked distinction between the pay of an employee and any allowances that may be permissible or which the employer may agree or may be bound under some provision of law to give him. That is something in addition to what is basically called "pay" or "Salary". I cannot see how "pay" and "wages" as defined in Section 2(rr) of the Act can be treated as synonymous and if it was intended on the previous occasion to refer the question of fixation of wages as defined in that provision, the word "wages" would have been employed in the reference and not scales of pay. As the question of dearness allowance was never referred at any previous stage, it is not possible to see how the workmen would be barred by the principle of res judicata from obtaining a decision on a proper reference with regard to fixation of dearness allowance which is something quite distinct and separates from "pay". In this view of the matter, the question of application of the rule of "might" and "ought" in Section 11 does not arise. Even if it be assumed that two views are possible on the point, namely, the one suggested by Mr. Anand that "wages" and "pay" are interchangeable and the other which appealed to the Tribunal that they were distinct and separate, it is well settled that it is not open to interference in a petition under Article 226 of the Constitution as that will not constitute an error apparent on the face of the record.
(3.) FOR all these reasons, the petition is dismissed with costs but I grant one month's time to the Petitioner for implementation of the award relating to dearness allowance.;