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PETITIONER: THE KIRLOSKAR OIL ENGINES LTD., KIRKEE, POONA

       Vs.

RESPONDENT: THE WORKMEN AND OTHERS

DATE OF JUDGMENT: 17/11/1961

BENCH:

ACT:      Industrial           Dispute-Reference-Award- Clarification   of    award   by   Tribunal-Scope- Industrial Disputes  Act, 1947  (14 of  1947),  s. 36A.

HEADNOTE:      Certain disputes  between the  appellant  and its  workmen   were  referred  to  the  industrial tribunal for  adjudication by the State Government under the  provisions of  the Industrial  Disputes Act,  1947.   The  award   made  by  the  tribunal provided, inter alia, (1) that if a workman had to work on  a weekly off or on a holiday he should be paid 1  1/2 times his wages and dearness allowance over and above a substituted holiday, and (2) that all the workmen shall be granted 15 days privilege leave in  a year  which could  be  allowed  to  be accumulated up  to 45  days. The appellant applied to the  Government under s. 36A of the Act stating that the  directions given  by the tribunal had to be clarified  on the grounds, inter alia, (1) that the reason  for directing  the additional  payment for working  on a  weekly off  or on a holiday was that the workman was deprived of an opportunity to spend his  time in  the company  of his colleagues and refresh  himself, but  that there was no basis for this  since the whole factory worked on weekly off or on a holiday, and (2) that the accumulation of privilege  leave of  45 days to all workmen was not justified.  The tribunal  made a clarification as regards  privilege leave  confining it  to only those workmen  who had  put in 240 days or more of actual working  during the  previous calendar year so as  to be  in conformity with the provisions of the Factories  Act, 1948,  but as  regards  others matters it  held that  the directions  given  were quite  clear   and  that   under  the   guise   of clarification  the  appellant  could  not  seek  a modification of the award under s. 36A. ^      Held, that  36A of  the  Industrial  Disputes Act, 1947,  was intended  to empower a tribunal to clarify the  provisions of  the award passed by it where a  difficulty or  doubt  arose  about  their interpretation, and  not to  review or  modify its own  order.  Any  question  about  the  propriety, correctness or  validity of  any provision  of the award would  be outside the purview of the enquiry

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contemplated by that section. 492

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 587 of 1960.      Appeal by  special leave from the award dated December 16,  1958, of  the  Industrial  Tribunal, Bombay, in Reference (I. T.) No. 387 of 1958.      M. C. Setalvad, Attorney-General of India and I. N. Shroff, for the appellant.      K. R. Choudhuri, for respondnet No. 1.      Naunit Lal, for respondent No. 2.      1961. November  17. The Judgment of the Court was delivered by      GAJENDRAGADKAR,  J.-This  appeal  by  special leave arises  out of  the proceedings taken at the instance  of  the  appellant,  the  Kirloskar  Oil Engines Ltd.,  Kirkee, Poona  under s.  36A of the Industrial  Disputes   Act,  1947   (14  of  1947) (hereafter  called   the  Act).  It  appears  that certain disputes pending between the appellant and the respondents, its workmen, were referred to the industrial tribunal  for its  adjudication by  the Government  of   Maharashtra.  The   disputes   in question related  to seven  demands  made  by  the respondents:  two  of  these  were  in  regard  to privilege leave and allowances. The tribunal which tried the  dispute made  its award  in two  parts. Part I  of the  award which  dealt the  demand  of privilege leave  and different kinds of allowances was made  on June  30, 1958, and published on July 7, 1958.  On August 2, 1958, the appellant applied to the  State Government  for reference of certain points to the tribunal for its clarification under s. 36A. Accordingly an order of reference was made in respect  of the  two items  privilege leave and allowances. The  tribunal has  made the  necessary clarification in  regard to  its direction  as  to privilege leave.  It has,  however, held  that the direction made  by  it  for  the  payment  to  the workmen under  paragraph 14 of its award needed no clarification. It held that in substance 493 the appellant  was seeking  for a  modification of the said  direction and  that could not be done in the clarification  proceedings contemplated  by s. 36A. The  clarification award was thus made by the tribunal and  submitted to  the Government.  It is against this  award that the appellant has come to this Court by special leave.      It would  be  convenient  at  this  stage  to indicate briefly  the nature  of the clarification claimed by  the appellant  before the tribunal. In regard the  claim for privilege leave the original award by paragraph 10 had directed as follows:           "All the workmen, both daily and monthly      rated, get  privilege leave  according to the      provisions of  the Factories  Act. The  leave      usually comes  to 14  or 15  days in a year I      consider a  privilege leave of 15 days a year      to both  the sections  of the  workmen in the      Kirloskar oil  Engines as  quite adequate. At

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    present  this   leave  is   allowed   to   be      accumulated for  two years.  Here I am of the      opinion that the accumulation should be up to      45 days.  I therefore  direct  that  all  the      workmen of  the Kirloskar  Oil Engines  Ltd.,      Poona, shall  be granted  15  days  privilege      leave (including  privilege leave  under  the      Factories Act)  which will  be allowed  to be      accumulated up to 45 days." The appellant  apprehended that  the direction  of the award  may justify  a claim  by  every  worker whose name  is on  the  muster  roll  to  15  days privilege  leave   irrespective  of   his   actual attendance during  the year.  In other  words, the appellant  argued   before  the  tribunal  in  the present proceedings  that the  words used  by  the original award were wide enough to justify a claim for 15 days privilege leave even where the workman was absent  from work, for say 360 days in a year, provided his  name appeared  on the muster roll of the appellant.  The tribunal appreciated the force of this 494 argument. It  is common ground that under s. 79 of the Factories  Act 1948, it is only where a worker has worked  for a  period of 240 days or more in a factory during  a calendar  year that  he  becomes entitled during  the subsequent  calendar year  to leave with  wages for  a number of days calculated at the  rate of  one day  for every twenty days of work performed  by an adult worker in the previous calendar year, or at the rate of one day for every fifteen  days  work  performed  by  a  child.  The tribunal observed that it was not the intention of the award  to  depart  from  the  basic  principle prescribed by  s. 79; and so it made the necessary clarification by  adding that  in order to entitle him to  the privilege  as directed  by  the  award every workman  must put  in 240  days or  more  of actual working  during the previous calendar year. Thus, in regard to the provision made by the award as to privilege leave the clarification claimed by the appellant was made.      In  regard  to  the  second  point  on  which clarification was sought the relevant direction in the award reads thus:           "At present  if a  workman  works  on  a      weekly  off  or  on  a  holiday,  he  gets  a      substituted holiday  under the  Factories Act      but no  additional payment.  In my  opinion a      workman makes  plans well  in  advance  about      spending his  holidays. He spends his time in      the company  of his  colleagues and refreshes      himself. If he gets a substituted holiday, he      is  deprived  of  his  enjoyment.  He  should      therefore be  compensated in money as well as      by a  day off.  I therefore  direct that if a      workman has  to work  on a weekly off or on a      holiday (paid  or unpaid) he should be paid 1      1/2 times  his wages  and dearness  allowance      over and above substituted holiday." 495 The appellant  urged before the tribunal that this direction needed  to be  clarified because  as  it stood it  was likely  to impose  on the  appellant

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very heavy  financial burden.  The  tribunal  held that the  direction itself was very clear and that under the guise of clarification the appellant was seeking its modification. So the tribunal rejected the appellant’s  claim for  any  clarification  in that behalf.      In the  present appeal  the learned Attorney- General attempted  to argue  that the accumulation of privilege  leave up  to 45  days allowed by the award was  not justified.  In  our  opinion,  this argument cannot  be  entertained  in  the  present appeal  for  two  reasons.  First,  no  such  plea appears to  have been  made before the tribunal in the present  clarification proceedings  and so the appellant cannot  be allowed  to raise  a new plea now. Besides,  it is necessary to bear in mind the limitations of  the enquiry  permitted  under  the proceedings contemplated by s. 36A of the Act. The said section  empowers the  appropriate Government to refer  any question to the tribunal if the said Government is  satisfied that  any  difficulty  or doubt arises  as  to  the  interpretation  of  any provision of  an award  made by the said tribunal. It further  provides that  when such a question is referred to  it the  tribunal shall,  after giving the parties  an opportunity of being heard, decide such question  and its decision shall be final and binding on all such parties. It is thus clear that the scope  of the  enquiry under s. 36A is limited to the  decision of  the  difficulties  or  doubts arising as  to the interpretation of any provision in the  award. If  the words used in any provision of an award are ambiguous or obscure and it is not reasonably  possible   to   interpret   them   the difficulty arising  from the use of such ambiguous or obscure  words may  be resolved  by moving  the appropriate Government  to make  a reference under s. 36A. It is obvious 496 that any question about the propriety, correctness or validity of any provision of the award would be outside the purview of the enquiry contemplated by the section.  If a party to the award is aggrieved by any  of its  provisions on  the merits the only remedy available to it is by making an appeal, say for instance  under Art.  136 of the Constitution, to this Court. A grievance felt by a party against any provision  of the award can be ventilated only in that  way and  not by  adopting  the  procedure prescribed  by   s.   36A.   Thus,   the   enquiry permissible  under   s.  36A  is  limited  to  the question of the interpretation of the provision of the award in question and no more. That is why, we think, that  even if  the appellant  had sought to raise the question about the propriety of allowing the accumulation  of privilege leave up to 45 days before the  tribunal, and  even if such a question had been  referred by  the State Government to the tribunal under  s. 36A,  the tribunal  would  have been justified  if  in  refusing  to  consider  it because the  point raised  had nothing  to do with the  interpretation   of  the   provision  but  is concerned  with  its  merits  and  its  propriety. Therefore, in  our opinion,  the appellant  is not entitled to  raise this  point before  us  in  the

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present appeal.      The next  contention raised  by the appellant is  against   the  refusal   of  the  tribunal  to entertain its  application  for  clarification  in regard to  the provision  for the  payment to  the worker  1   1/2  times   his  wages  and  dearness allowance over  and above a substituted holiday if he has  to work  on a  weekly off  or on a holiday (paid or  unpaid). The  grievance of the appellant in substance  is that in 1956 and 1957, on account of shortage  of electrical  energy for  industrial purposes  the   State  Government   compelled  the factories to  change their  weekly  holidays  from Sunday to  some other  week day,  each factory  or group of  factories  observing  one  week  day  as weekly off.  According  to  the  appellant,  if  a handful of  workmen are to work on a weekly off or on a 497 holiday when  the whole  factory  is  closed  then there would  be some  justification for making the payment to  the workmen required to work on such a day; but  there  would  be  no  justification  for making such  payment where the whole factory works on a  weekly off  or on  a holiday.  In support of this  contention   the  appellant  relies  on  the observation made  in the  original award  that the basis for  directing the  additional  payment  for working on  a weekly  off or  on a holiday is that the workman is deprived of an opportunity to spend his time  in the  company of  his  colleagues  and refresh himself.  It is  urged that  when all  his colleagues are working there is no point in saying that anyone is deprived of an opportunity to spend his time  in the  company of  his colleagues.  The tribunal was not impressed by this argument and so it has  refused  to  make  any  clarification-cum- modification in  its award. It is significant that the argument  based on  the orders  issued by  the State Government requiring the factories to change their  weekly   holidays  owing   to  shortage  of electric energy was not raised before the tribunal at the  time when  it originally heard the dispute between the  parties. It has stated in the present order that it looked at its notes of arguments and noticed that  no such plea was raised before it at that time.  Besides the tribunal has observed that having regard to the definition of the word "week" under s. 2 (f) of the Factories Act as well as the provisions of  s. 52 of the said Act it would have been open  to the appellant to have another day of the week declared as the first day of the week for its purposes.  If the appellant had adopted such a course the difficulty on which it relied would not have arisen.      The appellant contends that the reasons given by  the   tribunal  in  rejecting  its  claim  for clarification are  not sound. We are not impressed by this  argument. As we have already pointed out, the present  argument ignores  the limitations  of the scope of the 498 enquiry  under   s.  36A.  It  is  clear  that  in substance  the  argument  is  that  the  direction issued by  the award  in regard  to the payment in

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question should be modified, and in support of the claim for  modification reliance  is placed on the relevant orders issued by the State Government for changing the  weekly holidays. Such a claim cannot obviously   be    entertained   in   clarification proceedings   under    s.   36A.    A   proceeding contemplated  by   s.  36A  is  not  a  proceeding intended to  enable  the  tribunal  to  review  or modify its own order; it is intended to enable the tribunal only  to clarify  the provisions  of  its award where a difficulty or doubt arises about the interpretation of  the provisions.  Quite  clearly the impugned  provisions contained in paragraph 14 of the  award in relation to this demand are clear and unambiguous.  Whatever may  be the appellant’s grievance  in  respect  of  the  validity  or  the propriety of  the  said  directions  there  is  no difficulty or doubt about their meaning; and so we are satisfied  that  the  tribunal  was  right  in refusing  to  alter  the  said  direction  in  the present proceedings.      The  result   is  the  appeal  fails  and  is dismissed with costs.                                  Appeal dismissed.