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PETITIONER: BENGAL CHEMICAL & PHARMACEUTICALWORKS LTD., CALCUTTA

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 28/01/1959

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1959 AIR  633            1959 SCR  Supl. (2) 136  CITATOR INFO :  RF         1961 SC 100  (2)  R          1966 SC 976  (22)  RF         1967 SC 284  (3,4)  F          1967 SC 948  (6)  RF         1969 SC 360  (8)  APL        1969 SC 513  (16)  R          1972 SC1552  (9)  R          1974 SC 136  (10)  R          1974 SC 526  (18)  R          1976 SC 758  (8,9)  R          1979 SC  75  (11)  F          1989 SC1972  (13)  RF         1990 SC1050  (10)

ACT:        Industrial  Dispute-Reference-Government,  if  empowered  to        transfer  from  one  Tribunal  to  another-Award-If  can  be        superseded  by  fresh agreement-Disputes referred  on  fresh        agreement-Reference if bad-Industrial Disputes Act, 1947 (14        of  1947), SS. 2(r) and 7A.  Industrial Disputes  (Amendment        and Miscellaneous Provisions) Act, 1956 (36 of 1956), S. 30-        Industrial  Disputes (Amendment) Act, 1957 (18 of 1957),  S.        2.        Supreme  Court-scope of jurisdiction vis-a-vis the Award  of        Tribunal-Right of appeal-Constitution of India, Art. 136.

HEADNOTE: Aggrieved  by an Award of 195, the employees  placed  before the  Company a fresh charter of demands which  was  mutually settled  by a written agreement which provided, inter  alia, that the existing rate of dearness allowance should  prevail which was adjustable to any future substantial change in the cost  of living index of the working class.  As the cost  of living  increased disputes arose, and in spite of  the  said Award of 1951, 137 which  was  not  terminated according to  law,  the  dispute arising  out of the said written agreement was referred  for adjudication  by  the Government to  the  Second  Industrial Tribunal, Calcutta, in September, 1956.  In April 1957,  the Government   transferred   the  dispute  from   the   Second

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Industrial  Tribunal to the Fifth Industrial Tribunal.   The Company,  inter alia, contended that the Government  had  no power  to transfer the dispute from one Tribunal to  another and  that  the reference was bad as the 1951 Award  had  not been duly terminated. The   Industrial  Disputes  (Amendment   and   Miscellaneous Provisions)  Act  (36  of  1956)  amending  the   Industrial Disputes  Act  (14 Of 1947) came into force  on  August  28, 1956,  giving  authority  to the Government  to  transfer  a reference  from one Tribunal to another, which was  followed by  a  further  amending  Act,  being  Industrial   Disputes (Amendment) Act (18 of 1957) whereunder among other things a new   definition  of  ’Tribunal’  was  given,  whereby   the Industrial  Tribunal  constituted prior to March  10,  1957, under s. 7A of Act 14 Of 1947 was included. Held,  that as a result of the amendments to the  Industrial Disputes Act, 1947, the Government had authority to transfer a case from one Tribunal to another. ’Tribunal ’ as defined by s. 2(r) of the Industrial Disputes Act, 1947, as amended by Act 36 of 1956, read with  amending Act  18  of  1957, empowers the  Government  to  transfer  a reference from one Tribunal to another. Where,  in  spite of a previous award, the  employees  after raising fresh demands entered into a new agreement with  the employer  which  started  a  fresh  chapter  regulating  the relationship of the parties, the previous award, though  not terminated in accordance with the provisions of law, must be deemed to have been superseded. Held,  further, that though Art. 136 of the Constitution  is couched  in  the widest terms and  confers  a  discretionary power, (which cannot exhaustively be defined) on the Supreme Court  to grant special leave to appeal from the order of  a tribunal,  but  it  is necessary for the  Supreme  Court  to exercise  its said discretionary jurisdiction only in  cases (a)  where there is a violation of the principle of  natural justice, (b) raises an important principle of industrial law requiring  elucidation  and final decision  by  the  Supreme Court,  or (c) discloses such other exceptional  or  special circumstances which merit the final decision by the  Supreme Court.  Such discretionary reserve power cannot obviously be so  construed  as to confer a right of appeal to  any  party from the decision of a Tribunal, where he has none under the law. Industrial  Disputes Act is intended to be a  self-contained one and it seeks to- achieve social justice on the basis  of collective bargaining, conciliation and arbitration.  Awards are given on circumstances peculiar to each dispute and  the Tribunals are to a 18 138 large   extent   free   from   restrictions   of   technical considerations imposed on courts. A  free and liberal exercise of the discretionary powers  by the  Supreme  Court may materially  affect  the  fundamental basis  of  the  decision, namely,  quick  solution  to  such disputes to achieve industrial peace. Where  an  Industrial Tribunal on the consideration  of  the entire  material placed before it and having regard  to  the overall picture, came to a conclusion of facts, the  Supreme Court will not interfere with such finding of fact nor  will it  be justified to allow to make a new case for  the  first time before it. Pritam Singh v. State of Madras, [1950] S.C.R. 453; Hem  Raj v.  State  of Ajmer, [1954] S.C.R. 1133 and Sadhu  Singh  v. State of PEPSU, A.I.R. 1954 S.C. 272, referred to.

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JUDGMENT: CIVIL APPELATE JURISDICTION: Civil Appeals Nos. 125 and  164 of 1958. Appeals  by  special leave from the Award dated  August  26, 1957,  of the Fifth Industrial Tribunal -at West  Bengal  in Case No. VIII-264/56. S.   C. Issacs and S. N. Mukherjee, for the Appellants in C. A. No. 125/58 and Respondents in C. A. No. 164/58. N.   C.  Chatterjee  and  Dipak  Datta  Choudhri,  for  the. Respondents in C. A. No. 125/58 and Appellants in C.   A. No. 164/58. 1959.  January 28.  The Judgment of the Court was  delivered by SUBBA  RAO, J.-These appeals are by Special Leave -from  the Award  by Shri G. Palit, Judge, Fifth  Industrial  Tribunal, West  Bengal,  in the matter of a  dispute  between  Messrs. Bengal  Chemical & Pharmaceutical Works  Limited,  Calcutta, and their employees, represented by Bengal Chemical  Mazdoor Union, Calcutta. 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 139 Industrial  Disputes (Amendment & Miscellaneous  Provisions) Act, 1956 (36 of 1956), which came into force on August  28, 1956.   On  April 9, 1956, the’ Government  made  ail  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 of the judgment as the Company and the Union. 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, 1951, 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

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the time the previous award was made and those prevailing at the time of the present reference as to justify making out a new award; (4) the Tribunal 140 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  on  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. We  shall  consider  the above  contentions  seriatim.   But before  doing so, it will be convenient to refer briefly  to the  scope of jurisdiction of this Court under Art.  136  of the Constitution vis-a-vis the awards of Tribunals.  Article 136 of the Constitution does not confer a right of appeal to any party from the decision of any tribunal, but it  confers a discretionary power on the Supreme Court to grant  special leave  to  appeal  from the order of any  tribunal  in  the. territory  of  India.  It is implicit in  the  discretionary reserve  power that it cannot be exhaustively  defined.   It cannot  obviously be so construed as to confer a right to  a party  where  he  has none under the  law.   The  Industrial Disputes  Act is intended to be a self-contained one and  it seeks  to achieve social justice on the basis of  collective bargaining, conciliation and arbitration.  Awards are  given on circumstances peculiar to each dispute and the  tribunals are,  to  a  large extent, free  from  the  restrictions  of technical  considerations  imposed on courts.   A  free  and liberal exercise of the power under Art. 136 may  materially affect  the  fundamental basis of  such  decisions,  namely, quick solution to such disputes to achieve industrial peace. Though Art. 136 is couched in widest terms, it is  necessary for  this Court to exercise its  discretionary  jurisdiction only  in  cases where awards are made in  violation  of  the principles of natural justice, causing substantial and grave injustice  to  parties or raises an important  principle  of industrial law requiring elucidation, and final decision  by this  Court or discloses such other exceptional  or  special circumstances  which merit the consideration of this  Court. The points raised by the 141 learned  Counsel,  except perhaps the first point ,  do  not stand the test of any one of those principles. Learned Counsel for the Company, however, says that,  though the’  said  principles  might  be applied  at  the  time  of granting  leave,  once leave is given no  such  restrictions could  be  imposed  or  applied at the  time  of  the  final disposal  of the appeal.  The limits to the exercise of  the power  under  Art.  136 cannot be made to  depend  upon  the appellant obtaining the special leave of this Court, for two reasons,  viz.,  (i) at that stage the Court may not  be  in full possession Of all material circumstances to make up its mind and (ii) the order is only an ex parte one made in  the absence  of  the  respondent.  The  same  principle  should, therefore,   be   applied  in  exercising   the   power   of interference  with the awards of tribunals  irrespective  of the  fact that the question arises at the time  of  granting special leave or at the time the appeal is disposed of.   It would  be illogical to apply two different standards at  two different  stages  of  the same case.   The  same  view  was expressed  by  this Court in Pritam Singh v.  The  State  of

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Madras (1), Hem Raj v. State of Ajmer(1) and sadhu Singh  v. State of Pepsu(3) The  first  question  turns upon  the  construction  of  the relevant provisions of the Act as amended by the  Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. The relevant provisions inserted by the Amending Act read as follows: "Section  2(r)  : I Tribunal’ means an  Industrial  Tribunal constituted under section 7A." "  7  A. Tribunals.-(1) The appropriate Government  may,  by notification in the official Gazette, constitute one or more Industrial  Tribunals  for the  adjudication  of  industrial disputes  relating to any matter, whether specified  in  the Second Schedule or the Third Schedule. (2)  A  Tribunal  shall  consist of one person  only  to  be appointed by the appropriate Government. (3)  A person shall not be qualified for appointment as  the presiding officer of a Tribunal unless- (1) [1950] S.C.R. 453.         (2) [1954] S.C.R. 1153. (3)  A.I.R. 1954 S.C. 271. 142 (a) he is, or has been, a Judge of a High Court; or (b)  he  has  held the office of the Chairman or  any  other member  of the Labour Appellate Tribunal  constituted  under the Industial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950), or of any Tribunal, for a period of not less than two years. (4)  The  appropriate Government may, if it so  thinks  fit, appoint  two persons as assessors to advise the Tribunal  in the proceeding before it." "33B.  (1)  The  appropriate Government  may,  by  order  in writing  and for reasons to be stated therein, withdraw  any proceeding  under  this Act pending before a  Labour  Court, Tribunal, or National Tribunal,’ as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so  transferred may, subject to-special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred : Provided that where a proceeding under section 33 or section 33A  is pending before a Tribunal or National Tribunal,  the proceeding may also be transferred to a Labour Court." Section 30 of the Amending Act reads: " If immediately before the commencement of this Act,  there is  pending  any  proceeding in relation  to  an  industrial dispute  before a Tribunal constituted under the  Industrial Disputes  Act,  1947 (14 of 1947), as in force  before  such commencement,  the  dispute  may  be  adjudicated  and   the proceeding   disposed   of  by  the  Tribunal   after   such commencement,  as if this Act has not been passed." Section 7, before the Amendment ran thus: "  The  appropriate Government may constitute  one  or  more Industrial  Tribunals  for the  adjudication  of  industrial disputes in accordance with the provisions of     this Act. (2)  A Tribunal shall consist of such number of members as the  appropriate Government thinks fit. Where  the  Tribunal consists  of  two  or more members, one  of  them  shall  be appointed as chairman. 143 (3)  Every  member of the Tribunal shall be  an  independent person, (a)  who  is  or  has  been a Judge of a  High  Court  or  a District Judge, or (b)  is  qualified  for  appointment as a Judge  of  a  High Court:

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Provided  that the appointment to a Tribunal of  any  person not  qualified under part (a) shall be made in  consultation with  the High Court of the Province in which  the  Tribunal has or is intended to have, its usual place of sitting." It  will  be  seen from the aforesaid  provisions  that  the Amending  Act,  which came into force on  August  28,  1956, changed  the constitution of a tribunal to some  extent  and conferred  a power for the first time on the  Government  to transfer  a proceeding pending before a tribunal to  another tribunal; or in the case of a proceeding under s. 33 or  33A pending before a tribunal to another tribunal or to a Labour Court.   Section  30 of the Amending Act expressly  saves  a pending  proceeding before a tribunal constituted under  the Act before the Amending Act came into force and directs that such  dispute  shall  be  adjudicated  and  the   proceeding disposed  of by that tribunal after the commencement of  the Amending Act as if that Act had not been passed.  A combined and fair reading of the aforesaid provisions, it is  argued, was  that s. 33B, inserted in the Act by the  Amending  Act, was  prospective in operations i.e., it would apply only  to proceedings initiated in the tribunal constituted Under  the amended   Act  and  that  proceedings  pending  before   the tribunals constituted under the Act before the  commencement of the Amending Act would be disposed of as if the  Amending Act  had  not been passed.  The  Parliament,  presumably  to clarify  the  position,  brought out  another  Amending  Act styled the Industrial Disputes (Amendment) Act, 1957 (18  of 1957), whereunder among other things, a new definition of  " Tribunal  " was given in substitution of that in s. 2(r)  of the Act.  The substituted definition reads: " ’Tribunal’ means an Industrial Tribunal constituted  under section 7A and includes an Industrial 144 Tribunal  constituted  before the 10th day of  March,  1957, under this Act." Sub-section (2) of s. I of the Amending Act 18 of 1957  says that  s.  2 shall be deemed to have come into force  on  the 10th  day  of March, 1957.  The result is that  section  33B should  be read along with the definition of a " Tribunal  " inserted  by  the  Amendment  Act 18 of  1957,  as  if  that definition  was  in the Act from March 10,  1957.   If  that definition  of a " Tribunal " ’be read in place of the  word ,Tribunal"  in  s. 33B, the relevant part  of  that  section reads:  "  (1) The appropriate Government may, by order in  writing and   for  reasons  to  be  stated  therein,  withdraw   any proceeding   under  this  Act  pending  before  a   Tribunal constituted before the 10th day of March, 1957, and transfer the same to another Tribunal constituted under section 7A of the Act." So  construed  it  follows that in  respect  of  proceedings pending  in  a tribunal constituted before the 10th  day  of March,  1957, the Government has the power to transfer  them from that date to any other tribunal.  It is said that  this construction would make s. 30 of the Amending Act 36 of 1956 otiose  or nugatory.  That section contained only  a  saving clause  and  it was not inserted in the Act; it  served  its purpose,  and even if it ceased to have any operative  force after  the Amendment of 1957, that circumstance cannot  have any bearing on the impact of the amendment of the definition of " Tribunal " on the provisions of s. 33B of the Act.   In the present case, the Government made the order of  transfer on  April 9, 1957, i.e., after s. 2 of Amendment Act  18  of 1957  was  deemed  to  have  come  into  force.   It   must, therefore, be held that the Government acted well within its

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powers in transferring the dispute pending before the Second Industrial Tribunal, to the Fifth Industrial Tribunal. The  second contention, namely, that the Award of  1951  was not  terminated in accordance with law, does not  appear  to have  been  pressed  before  the  Tribunal.   The  governing section is s. 19(6) which says: "  Notwithstanding  the expiry of the  period  of  operation under sub-section (3), the award shall 145 continue to be binding on the parties until a period of  two months has elapsed from the date on which notice is given by any  party bound by the award to the other party or  parties intimating its intention to terminate the award’." In  the first written-statement filed by the Company  before the  Tribunal, no plea was taken based upon s. 19(6) of  the Act.   In the second written-statement filed by the  Company on December 20, 1956, a contention was raised to the  effect that the award dated June 21, 1951, was not terminated under s.   19(6)  of  the  Act, that the said  award  was  binding between  the parties and therefore the reference was bad  in law.   Notwithstanding the said allegation, the  award  dis- closes  that  no  issue  was raised on  that  count  and  no argument  was  advanced in support thereof.   This  attitude might have been adopted by the Company either because it did not think fit to rely upon a technical point but had  chosen to get a decision of the Tribunal on merits, or it might  be that  there was no basis for the contention, as the  company might  have received notice under the said section.   Though it may not be quite relevant, it may be mentioned that  even in 1951 when the dispute between the parties was referred to the  Industrial  Tribunal, though a similar  contention  was open  to  the  Company  and  indeed  was  suggested  by  the Tribunal,  it  moved the Tribunal to give an  award  on  the merits  of  the  matter.  If this plea  had  been  seriously pressed, the Tribunal would have raised a separate issue and the  Union would have been in a position to  establish  that notice  had  been served on the Company as  required  by  s. 19(6)  of  the  Act.  As the question  raised  depends  upon elucidation of further facts, we do not think that we  would be  justified  in  allowing the Company to  raise  the  plea before us, and we, therefore, do not permit them to do so. The  fourth point turns on the construction of the terms  of the agreement entered into between the parties on  September 15,  1954.  The dispute between the parties had  an  earlier origin and apart from the 19 146 present reference, there were as many as four references and four  awards, and the last of them was dated April 3,  1951. The  Company preferred an appeal against that award  to  the Labour  Appellate  Tribunal-,  Calcutta,  which,  with  some modification, confirmed the award of the Tribunal on  August 30, 1957.  That award as modified by the Appellate  Tribunal fixed  the  basic wages and the rate of  dearness  allowance payable to the employees.  The employees were not  satisfied with  the award and they placed before the.  Company  a  new charter  of  demands  claiming  higher  rates  of   dearness allowance and wages, but the dispute was compromised and the parties entered into an agreement dated September 15,  1954, by  virtue of which, the Company introduced the  incremental scale  in  the  wage structure.   As  regards  the  dearness allowance,  it  was stated in cl. 1 1 of  the  agreement  as follows: "The  existing rate of D. A. will prevail unless there is  a substantial  change  in  the working class  cost  of  living

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index,in which case the rate will be suitably adjusted." On  the construction of this clause depends the question  of the Union’s right to claim enhanced dearness allowance.   It is common case that if the cost of living index in the  year 1951 was taken as the basis, there was a fall in the rate of working  class cost, of living index in 1957.  On the  other hand, if the cost of living index in 1954 was the criterion, there was a substantial increase in the cost of living index in  1957.  The question, therefore, is what did the  parties intend  to agree by the aforesaid clause in  the  agreement. To  ascertain the intention of the parties, we  should  con- sider  the circumstances under which the said agreement  was entered  into  between the parties.  Exhibit 6 is  the  said agreement.  The preamble to the agreement reads : " The Company and the Union came to a settlement in  respect of the Pay Scales and Grades in the Charter of Demands dated 25th  June, 1953, at the intervention of Shri A.  R.  Ghosh, Asstt.    Labour   Commissioner  during   the   Conciliation proceedings ending on the 30th August, 1954." 147 The  preamble indicates that-the entire situation  obtaining on  the date of the agreement -was reviewed and the  parties agreed  to  the terms of the settlement  mentioned  therein. Under  clause (1) of the agreement, pay scale and  grade  as given in annexure B was agreed upon for the time being for a period  of  three years as an experimental  measure,  to  be reviewed,  modified  or suspended or withdrawn  after  three years,  depending upon the Company’s business and  financial condition.   By el. (2), the employees agreed not  to  raise any  dispute involving any further financial burden  on  the Company during the next three years in respect of pay  scale and grade.  Clauses (3) to (5) deal with increments and  the age of retirement.  Clause (6) provides for the  piece-rated (contract)  workers in respect of their increments.   Clause (7) is in respect of increment for the daily-rated  workers. Clause  (8) is in respect of the grade and scale of pay  and increments of Chemists, Engineers and Doctors, etc.   Clause (9)  is to the effect that the employees who would  be  made permanent   thence  forward  would  be  grouped  under   two divisions for the purposes of giving effect to the scale  of pay.   Clause  (11) which we have  already  extracted  above relates  to  the  dearness allowance.  Clause  (12)  says  " barring  the  question of bonus for 1358 and 1359  B.  S.the Union  withdraws its claim in respect of other items in  the Charter of Demands dated 25th June, 1953." We have given the agreement in extenso only for the  purpose of showing that all the disputes between the parties arising out  of  the charter of demands dated June, 25,  1953,  were settled between them and reduced to writing.  The  agreement was self-contained and started a new chapter regulating  the relationship  of  the parties to the dispute in  respect  of matters  covered  by it.  The award must be deemed  to  have been  superseded by the new agreement.  In this context  the crucial words " existing rate of D. A. ", on which both  the learned Counsel relied, could have only one meaning.  Do the words  " existing rate " refer to the date of the  agreement or  to the date of the award ? It is true that the  existing rate  of D. A. had its origin in the award and was  made  to prevail 148 under  the  agreement,  that is to say  that  the  rate  was accepted  by the parties as reasonable on the date  of  "the agreement,  till  there  was a  substantial  change  in  the working  class cost of living index.  If the  contention  of the  learned  Counsel for the Company  should  prevail,  the

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agreement  would  not  be self-contained,  but  only  to  be construed as modifying the earlier award to some extent.  We are  satisfied that in regard to matters covered by it,  the agreement replaced the earlier award and therefore the  date of the agreement is the crucial one for ascertaining whether there  was substantial change in the working class  cost  of living  index in the year 1957.  We, therefore, reject  this contention. Contentions  3, 5 and 6 raise pure questions of  fact.   The Tribunal, on the consideration of the entire material placed before  it, came to the conclusion that there was change  of circumstances  which  entitled  the employees  to  claim  an increase in their dearness allowance.  It has also fixed the rate  of increase in the dearness allowance on the basis  of the rise in the cost of living index.  In doing so, it  also took into consideration the difficulties facing the industry and  the repercussion of the rise in the dearness  allowance on  the consumers in general.  Having regard to the  overall picture, it came to the conclusion that full  neutralisation of the deficiency as a result of rise in the cost of  living index  by  dearness  allowance could not  be  permitted  and therefore allowed them only 75 per cent. of the increase  in the  dearness allowance to which they would  have  otherwise been entitled on the basis of the rise in the cost of living index.  The finding given by the Tribunal is one on fact and we  do not see any permissible ground for interference  with it in this appeal by special leave. Before closing, one point strenuously pressed upon us by the learned  Counsel  for the Company which  is  really  another attempt to attack the finding of fact given by the  Tribunal from  different  angle must be mentioned; it  was  that  the Tribunal  wrongly  relied upon Exhibit 3, corrected  on  the basis  of  the information given by  the  State  Statistical Bureau, West Bengal, for ascertaining the working class cost of living index since August 1954 up to March 1957.  On the 149 basis of Exhibit 3, the Tribunal held that the working class cost  of living index stood at 344.1 in August 1954  and  it rose to 400.6 in May 1957, with the result that there was  a rise of 56 points, a substantial rise in the cost of  living index.   Exhibit  3 certainly supports the  finding  of  the Tribunal.   The learned Counsel for the Company  points  out with  reference  to  the relevant  entries  in  the  Monthly Statistical  Digest,  West  Bengal, that  the  said  figures relate  only to working class menials and the  corresponding entries in regard to the working class cost of living  index do  not  indicate  so much increase as in the  case  of  the menial class.  Learned Counsel has also taken us through the relevant  figures.   The  relevant entries  in  the  Monthly Statistical  Digest  were  not filed  before  the  Tribunal. Indeed  when the Union’s witness, Shri Satyaranjan Sen,  was examined before the Tribunal, he was not cross-examined with a  view to elicit information that Exhibit 3 did not  relate to  the  working  class cost of  living  index.   When  Shri Chatterjee,  the Assistant Manager of the Company,  who  was examined after Shri Sen, gave evidence, he not only did  not object  to the entries in Exhibit 3 but stated that  he  was not  aware of any substantial increase in the working  class cost of living index and complained that similar entries for all  the relevant years had not been produced.  Even  before the  Tribunal  it  does not appear  that  any  argument  was advanced contesting the relevancy of Exhibit 3 on the ground that  it did not refer to the working class cost  of  living index.   In the circumstances, we do not think that  we  are justified  to allow the learned Counsel -for the Company  to

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make out a new case for the first time before us,  upsetting the  Tribunal’s basis for calculation and involving  further and different calculations. In  the  result, we confirm the award of  the  Tribunal  and dismiss the appeal with costs. The learned Counsel, appearing for the Union, did not  press the  appeal  No.  164  of 1958,  filed  by  the  Union,  and therefore it is also dismissed with costs.                                 Appeals dismissed. 150