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PETITIONER: KARNANI PROPERTIES LTD.

       Vs.

RESPONDENT: STATE OF WEST BENGAL AND ORS.

DATE OF JUDGMENT22/08/1990

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR 2047            1990 SCR  (3) 933  1990 SCC  (4) 472        JT 1990 (3)   624  1990 SCALE  (2)322

ACT:     Industrial      Disputes     Act,     1947:      Section 2(j)--"Industry"--Real Estate Company--Letting our  premises and  rendering various services, Electricity and Water  sup- ply, washing and cleaning, electrical and sanitary  repairs, lift services etc. to tenants--Employing workers for mainte- nance--Held  the  activity  carried on  by  the  company  is "industry".     Sections      2(b),      (p),       19(2),      6      & 7--"Award"--"Settlement"-Termination  of--Formal  notice  of termination of settlement is not necessary--Notice of termi- nation  can be inferred from the correspondence between  the parties.     Constitution       of     India,      1950:      Article 133(1)(a)---Appeal  to  Supreme  Court--Raising  fresh  plea involving questions of fact cannot be allowed at the  appel- late stage.     Article  226---Writ  petition  challenging  findings  of Industrial  Tribunal--High Court should  generally  consider the  material placed before the Tribunal--Fresh and  further material should not be allowed to be placed before the  High Court.

HEADNOTE:     The appellant, a real estate company, was engaged in the business  of letting out its property on lease,  Besides  it was  also rendering various services to its tenants such  as electricity  and  water supply, washing and  cleaning,  lift services, electrical and sanitary repairs on payment  basis. For rendering these services the appellant-company  employed a number of workmen.     A   dispute   arose  between  the  employees   and   the appellant-company  with  regard  to wages,  scales  of  pay, dearness  allowance and gratuity. The State  Government  re- ferred the disputes to Industrial Tribunal for adjudication. The  appellant-company  contested the reference  before  the Tribunal by raising a preliminary objection that the alleged dispute was not an industrial dispute and that the reference was  barred  by Section 19 of the Industrial  Disputes  Act, 1947  since  there was an earlier binding  award,  based  on settlement  with  the  Union, which was  not  terminated  by

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either parties. 934     By an order dated August 24, 1968 the Tribunal overruled the preliminary objection and gave the award dated March  3. 1969 enhancing the dearness allowance of the employees.  The Tribunal  also framed a revised gratuity scheme but did  not fix  any grades and pay scales of workmen for want  of  con- vincing evidence.     The appellant-company filed a writ petition in the  High Court challenging the Tribunal’s order dated August 24, 1968 as  well  as the Award dated March 7, 1969  contending:  (i) that  the Award was without jurisdiction because the  appel- lant-company was not carrying on ’industry’ and the  alleged dispute was not an ’Industrial Dispute’ and that the  previ- ous Award was not terminated and was still subsisting;  (ii) that  no  dispute  was raised between the  workmen  and  the appellant  prior to the reference before the  Tribunal;  and (iii)  that  the Tribunal did not consider  the  appellant’s capacity to pay dearness allowance to the workmen. A  single judge  of  the  High Court dismissed the  writ  petition  by rejecting all the contentions.     The  appellant filed an appeal against the  judgment  of the  single judge before a Division Bench of the High  Court which was also dismissed.     Against  the decision of the Division Bench of the  High Court  the appellant-company filed an appeal to this  Court, contending: (i) that the High Court was in error in  holding that  the appellant was an ’industry’ under Section 2(j)  of the  Act; (ii) that the Tribunal was not competent  to  make the  Award since the earlier Award, which was in the  nature of  a settlement under Section 2(p), was not  terminated  in accordance  with  section 19(2) by giving a  formal  written notice; (iii) that there was non-compliance with the  provi- sions of Section 19(7) of the Act; and (iv) that the  Indus- trial Tribunal was in error in making the Award in  relation to Dearness Allowance without examining the capacity to  pay the  additional amount and that the High Court  should  have remanded  the  matter to the Tribunal for  considering  this issue in the light of the documents which were submitted  by the appellant before the High Court. Dismissing appeal, this Court,     HELD: 1. The activity carried on by the appellant compa- ny  falls  within  the ambit of  the  expression  "industry" defined  in  Section 2(j) of the  Industrial  Disputes  Act, 1947.  The Award of the Industrial Tribunal  cannot,  there- fore, be assailed on the basis that the appellant is 935 not carrying on an ’industry’ under the Act. [943E]     Bangalore Water Supply & Swerage Board v .R. Rajappa and Ors., [1978] 3 SCR 207, applied.     Management  of  Safdar  jung Hospital  v.  Kuldip  Singh Sethi, [1971] 1 SCR 177; State of Bombay v. Hospital Mazdoor Sabha,  [1960] 2 SCR 866; D.N. Banerjee v.  P.R.  Mukherjee, [1953] SCR 302 and Corporation of the City of Nagpur v.  Its employees, [1960] 2 SCR 942, referred to.     2.  It  is not the requirement of Section 19(2)  of  the Industrial Disputes Act, 1947 that there should be a  formal notice terminating a settlement, and notice can be  inferred from the correspondence between the parties. [944B]     Indian  Link Chain Manufacturers Ltd. v. Their  Workmen, [1972] I SCR 790, applied.     2.1  In view of the finding of the Division  bench  that the letter of employees Union dated November 24, 1966 was  a notice  under section 19(6) as well as section 19(2) of  the Industrial  Disputes  Act,  1947 and that  the  said  letter

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contained a clear intimation of the intention of the employ- ees to terminate the Award, the High Court was justified  in holding  that the earlier award had been validly  terminated before the passing of the order of reference. [943H; 944A- B ]     3.  The  High Court was right in taking  the  view  that while  exercising its jurisdiction under Article 226 of  the Constitution  the High Court should generally  consider  the materials  which  were made available to  the  Tribunal  and fresh or further materials which were not before the  Tribu- nal  should not normally be allowed to be placed before  the Court. [944F-G]     3.1 In the instant case the appellant has not been  able to show why the documents relied on by it were not  produced before the Tribunal. Therefore there is no justification for accepting  the plea of the appellant for reconsideration  of the  Award  of the Tribunal in the light  of  the  documents submitted by the appellant during the pendency of the appeal before High Court. [944G-H]     4.  A question raised for the first time in the  Supreme Court involving an inquiry into questions of fact cannot  be allowed to be agitated. [944E] 936

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2080  (L) of 1977.     Appeal by Certificate from the Judgment and Order  dated 20.12.74  of  the Calcutta High Court in Appeal No.  104  of 1972. R.N. Nath and Rathin Das for the Appellant     S.P.  Khera, M. Quamaruddin and Mrs. M. Quamaruddin  for the Respondents. G.S. Chatterjee for the State. The Judgment of the Court was delivered by     S.C.  AGRAWAL,  J. This appeal, by  certificate  granted under  Article  133(1)(a) of the Constitution,  is  directed against  judgment and order of the High Court of  Judicature at  Calcutta dated December 20, 1974, in Appeal No.  104  of 1972.     Karnani Properties Ltd., appellant herein, is a  company incorporated under the Companies Act, 1913. It owns  several mansion  houses  known as Karnani Mansions at  Park  Street, Calcutta. There are about 300 flats in these mansions  which have been let out to tenants. The appellant provides various facilities  to its tenants in these flats, e.g. free  supply of  electricity, washing and cleaning of floors and  lavato- ries, lift service, electric repairs and replacing, sanitary repairs and replacing, etc., and for that purpose the appel- lant  employ  over 50 persons,  namely  sweepers,  plumbers, malis,  lift-man, durwans, pumpmen, electric and other  mis- tries, bill collectors and bearers, etc., in connection with these  properties. A dispute arose between the employees  of the  appellant  represented  by  Barabazar  Zamandar   Sangh (hereinafter  referred to as ’the union’) and the  appellant with regard to wages, scales of pay, dearness allowance  and gratuity. The Government of West Bengal, by order dated July 29,  1967, referred for adjudication to the  6th  Industrial Tribunal, West Bengal, the industrial dispute relating to: (a)  Fixation of Grades and Scales of pay of  the  different categories of workmen; (b) Dearness Allowance; and (c) Gratuity.

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937     The appellant raised preliminary objections with  regard to  the  validity  of the reference  before  the  Industrial Tribunal  on the ground that the alleged dispute is  not  an industrial  dispute  and  that the reference  is  barred  by Section 19 of the Industrial Disputes Act, 1947 (hereinafter referred to as ’the Act’) for the reason that in 1960  there was an Award on the basis of settlement made with the union, and the said Award has not been terminated by either of  the parties and is still binding on the parties. The  Industrial Tribunal, by its order dated August 24, 1968, overruled  the said  preliminary  objections raised by  the  appellant  and thereafter the Tribunal gave the Award dated March 3,  1969. The  Industrial Tribunal expressed its inability to fix  any grades and scales of pay of the workmen for the reason  that the evidence adduced by the Union on this issue was scrappy, none too convincing and not very much acceptable. As regards dearness  allowance the Industrial Tribunal held that  since November, 1964 the price index of working class in  Calcutta has  considerably gone up from 460 to 750 points (as was  in October,  1968), i.e. roughly by 300 points. The  Industrial Tribunal awarded enhanced DA at the rate of Rs.60 per  month (Rs.20 per 100 points) to the sweeper, bearer, helper, mali, mazdoor,  lift-man, head sweeper, durwan, pumpman,  and  as- sistant electric mistry. DA at the ,’ate of Rs.54 per  month (Rs.  18  per 100 points) was awarded to  the  plumber,  raj mistry,  head  durwan, electric mistry and driver  and  bill collector.  It was also directed that the said rates  of  DA would remain in force as long as the price index will remain between  600  to 800 points and if the price index  goes  up beyond  800 points the rate of DA will be revised  according to  the rates mentioned and if it goes below 600  points  it also may be revised accordingly. With regard to gratuity the Industrial  Tribunal  pointed out that  under  the  existing scheme gratuity is payable to every workmen after completion of three years continued, faithful and satisfactory  service at  the rate of 10 days consolidated salary for  every  com- pleted  year of service since the date of  appointment.  The Industrial  Tribunal held that three years’ period  was  too short  to  make  a workman entitled  to  gratuity  and  that "satisfactory" and "faithful" are vague terms. The Industri- al  Tribunal  framed a scheme of gratuity  whereunder  after completion  of  six  years of continuous  service  with  the appellant  every workmen on retirement or on death will  get an  amount of gratuity at the rate of 10 days’  consolidated salary for every completed year of service since the date of appointment and a workman who resigns voluntarily would also be entitled to get the gratuity at the same rate provided he completed  10  years of continuous service.  The  Industrial Tribunal also directed that if the termination of service is the result of misconduct which caused financial loss to  the employer 938 that  loss  would  first be compensated  from  the  gratuity payable to employee and the balance, if any, should be  paid to him. It was also directed that the services of the  work- men prior to 1950 would not be taken into consideration  for the purpose of payment of gratuity.     The  appellant filed a writ petition in the  High  Court under  Article  226 of the Constitution wherein  the.  order dated  August  24, 1968 and the Award dated  March  7,  1969 given  by the Industrial Tribunal were challenged. The  said writ  petition was heard by a learned single Judge,  who  by his  judgment dated March 17 & 20, 1972, dismissed the  said writ petition. Before the learned single Judge it was  urged

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that  the Award made by the Industrial Tribunal was  without jurisdiction  for  the reason that the  appellant  does  not carry  on an "industry" as defined in the Act and  that  the dispute  between the appellant and the workmen  cannot  come within  the ambit of industrial dispute, and also.  for  the reason  that there was a previous Award dated March 3,  1960 which  has not been terminated and was still subsisting  and in view of the said Award the present reference was  invalid and  further that no dispute was raised between the  workmen and  the appellant prior to the reference before the  Indus- trial Tribunal and as such the Tribunal has no  jurisdiction to  deal with the matter. The learned single Judge  rejected all these objections. He held that in view of the nature  of the  activity  carried  on the appellant does  carry  on  an industry  within  the  meaning of the Act  and  the  dispute between the appellant and its workmen come within the  ambit of  the  Act. As regards the Award dated March 3,  1960  the learned  single Judge found that the workmen  concerned  had given notice to terminate the previous Award and as such the existence  of  previous Award and as such the  existence  of previous  Award  would not preclude a fresh  reference.  The learned  single  Judge observed that no  specific  plea  was raised  by  the  appellant before  the  Industrial  Tribunal challenging  the order and the reference on the ground  that there was no such dispute prior to the reference between the workmen and the appellant about the questions referred to in the order of reference and that whether there was any demand or  not  is a question of fact. the  learned  single  Judge, however,  held that from the evidence it is clear  that  the workmen concerned had demanded before the order of reference in their charter of demands dearness allowance and provident fund  and gratuity and as such there was a  dispute  between the workmen concerned and the employers before the order  of reference  was  made.  The Award was  challenged  on  merits before  the  learned  single Judge on the  ground  that  the Industrial Tribunal did not consider the appellant’s capaci- ty  to  pay in granting dearness allowance  to  the  workmen concerned. The learned single Judge 939 rejected  the said contention on the view that  reading  the Award as a whole it could not be contended that the Tribunal did  not take into consideration either the capacity to  pay or the leval of the cost of living.     The  appellant filed an appeal against the  judgment  of the  learned single Judge which was dismissed by a  Division Bench  of  the High Court by its judgment  and  order  dated December 20, 1974. The learned Judges agreed with the  deci- sion  of  the  learned single Judge that  the  appellant  is carrying  on  an  industry under Section 2(j)  of  the  Act. Before the Division Bench it was contended on behalf of  the appellant that the earlier Award was made on the basis of  a settlement  between the two parties and that since the  said Award was in a nature of settlement it could only be  termi- nated in accordance with the provisions of Section 19(2)  of the Act relating to termination of a settlement. The learned Judges  of the Division Bench held that the said  contention was not raised by the appellant before the Tribunal and also before  the learned single Judge and it could not be  raised for  the first time at the stage of the appeal and  that  it cannot  be considered to be a pure question of  law  because for a settlement under Section 2(p) of the Act the necessary requirements  of settlement as laid down in the statute  and the  rules  have to be satisfied and whether  the  necessary recruitments have been satisfied or not will involve  inves- tigation  into facts. The learned Judges were,  however,  of

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the view that even if the said plea was allowed to be raised it could not be accepted inasmuch as the materials on record do  not  establish that the requirement of  "settlement"  as defined in Section 2(p) of the Act are satisfied in  respect of  the  earlier Award. It was held that an Award  does  not necessarily cease to be an Award merely because the same was made  on  the basis of a settlement arrived at  between  the parties and that the earlier Award was an "Award" within the meaning of Section 2(b) of the Act and was not a  settlement as  contemplated by Section 2(p) of the Act. With regard  to the  termination  of the earlier Award, the  learned  Judges have held that in the facts and circumstances of the case it had been validly terminated in accordance with Section 19(6) as  well  as Section 19(2) of the Act. Before  the  Division Bench  it  was  urged on behalf of the  appellant  that  the Tribunal  has not considered the financial capacity  of  the appellant  while  making the Award with regard  to  dearness allowance and reliance was placed on certain documents which were  filed  before the Division Bench. The  learned  Judges held  that  in considering the findings arrived  at  by  the Tribunal  the Court should generally consider the  materials which  were  made  available to the Tribunal  and  fresh  or further materials which were not before the 940 Tribunal should not be allowed to be placed before the Court in  a writ petition for determining whether the findings  of the  Tribunal are justified or not and that in  the  instant case no proper grounds have been made out for not  producing the  materials which were then available at the time of  the hearing before the Tribunal and why the said documents could not  be produced even before the learned single  Judge.  The learned Judges further held that even if the said  documents are taken into consideration the same would be of no partic- ular assistance to the appellant inasmuch as the said  docu- ments  consist mainly of balance sheets and  assessment  or- ders,  and  that the legal position is  settled  that  while computing  gross  profits for the purpose of  revising  wage structure  and  dearness allowance the  provision  made  for taxation,  depreciation  and development  rebate  cannot  be deducted  and the provisions of the Companies Act  contained in  Sections 205 and 211 and the principles  of  accountancy involved in preparation of profit and loss accounts have  no relevance or bearing while considering the revision of wages and dearness allowance. The learned Judges have held that on the materials on record the Tribunal was justified in making the Award and that the materials on record before the Tribu- nal  establish that the amount ordered by the  Tribunal  was not beyond the financial capacity of the appellant.     Aggrieved  by the decision of the Division Bench of  the High Court the appellant has flied this appeal after obtain- ing  leave  to  appeal from the  High  Court  under  Article 133(1)(a) of the Constitution.     Shri  R.N. Nath, the learned counsel for the  appellant, has  submitted that the High Court was in error  in  holding that the appellant is an industry under Section 2(j) of  the Act.  Shri Nath has submitted that in arriving at  the  said conclusion  the learned Judges of the Division Bench of  the High  Court have relied upon the decision of this  Court  in Management of Safder Jung Hospital v. Kuldip Singh Sethi,  [ 1971]  1  S.C.R. 177 which decision was  overruled  by  this Court  in  Bangalore  Water Supply & Sewerage  Board  v.  R. Rajappa  and Others, [1978] 3 S.C.R. 207. The submission  of Shri  Nath  is that in accordance with the  principles  laid down  in  Bangalore  Water Supply  &  Sewerage  Board  Case, (supra)  the appellant cannot be taken to be carrying on  an

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"industry"  under  Section 2(j) of the Act. In  our  opinion there  is  no substance in this contention. It is  no  doubt true  that the learned Judges of the Division Bench  of  the High  Court  have placed reliance on the  decision  of  this Court in the Safdar Jung Hospital Case, (Supra) for  holding that the appellant is carrying on an industry under  Section 2(j)  of  the Act and the decision in Safdar  Jung  Hospital case, (supra) has 941 been overruled by a larger Bench of this Court in  Bangalore Water  Supply  & Sewerage case, (supra). But this  does  not mean  that the view of the High Court that the appellant  is carrying  on  an industry under Section 2(j) of the  Act  is erroneous.  In  Safdar Jung Hospital case,  (supra),  a  six member  Bench of this Court had overruled the earlier  deci- sion in State of Bombay v. Hospital Mazdoor Sabha, [1960]  2 S.C.R.  866  and  gave a restricted  interpretation  to  the definition  of "industry" contained in Section 2(j)  of  the Act. Bangalore Water Supply & Sewerage Board, case  (decided by  a  seven member Bench of this Court) by  overruling  the decision  in  Safdar Jung Hospital case,  has  restored  the Hospital  Mazdoor Sabha case. In other words, the effect  of decision on Bangalore Water Supply & Sewerage Board case, is that  the expression "industry" as defined in  Section  2(j) has to be given the meaning assigned to it by this Court  in the  earlier decisions in D.N. Banerjee v.  P.R.  Mukherjee, [1953]  S.C.R.  302,  Corporation of the of  Nagpur  v.  Its employees,  [  1960] 2 S.C.R. 942 and the  Hospital  Mazdoor Sabha case Krishna Iyer, J., who delivered the main judgment in Bangalore Water Supply & Sewerage Board case, has  summed up  the principles which are decisive, positively and  nega- tively,  of  the identity of "industry" under the  Act.  The first principle formulated by the learned Judge is as under: "I,  Industry, as defined in Section 2(j) and  explained  in Banerjee has a wide import: (a) Where  (i) systematic activity (ii) organised by cooper- ation  between employer and employee, (the direct) and  sub- stantial  element  is chimerical) (iii) for  the  production and/or  distribution  of goods and  services  calculated  to satisfy  human wants and wishes (not spiritual or  religious but  inclusive  of  material things or  services  geared  to celestial  bliss  e.g. making, on a large  scale  prasad  or food), prima facie, there is an industry in that enterprise. (b) Absence of profit motive or gainful objective is irrele- vant, be the venture in the public joint or other sector. (c)  The true focus is functional and the decisive  test  is the  nature  of the activity with special  emphasis  on  the employer-employee relations. (d)  If the organisation is a trade or business it does  not cease to be one because of philanthropy animating the under- taking." 942     If  the said principles are applied to the facts of  the present  case  and there can be no doubt that  the  activity carried  on by the appellant satisfies the  requirements  of the  definition of "industry" contained in Section  2(j)  of the  Act.  In  this regard, it may  be  mentioned  that  the learned Judges of the Division Bench of the High Court  have found as under: "(i) The Memorandum of Association of the appellant  company indicate  that the principal object for which the  appellant company  was incorporated is to acquire by purchase,  trans- fer,  assignment  or otherwise lands, buildings  and  landed properties  of all description and in particular to  acquire from the Karnani Industrial Bank Ltd., the immovable proper-

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ties  now belonging to the said Bank and to improve,  manage and develop the properties and to let out the same on  lease or otherwise dispose of the same. (ii)  The principal business of the company is to deal  with the real property and it is a real estate company. (iii)  The  income which the appellant derives is  not  from mere letting out the properties to the tenants and that  the tenants pay not only for mere occupation of the property but also  for enjoyment of the various services which  are  ren- dered by the appellant to the tenants and to which  services the tenants are entitled as a matter of right for the  occu- pation of the premises. (iv)  The  services which are rendered to  the  tenants  and about which there does not appear to be any dispute are: (a) elaborate arrangements for supply of water; (b) free supply of electricity; (c) washing and cleaning of floors and lavatories; (d) lift services; (e) electric repairs and replacing; and (f) sanitary repairs and replacing etc. 943 (v)  For offering-these services to the tenants, the  appel- lant  has  employed a number of workmen and  these  services which  undoubtedly confer material benefits on  the  tenants and  constitute material services, are rendered by  the  em- ployees. (vi)  The employees of the appellant company are engaged  in their  respective calling or employment to do their work  in rendering the services. (vii)  Activity carried on by the appellant company  is  un- doubtedly not casual and is distinctly systematic. (viii)  The work for which labour of workmen is required  is clearly productive of the services to which the tenants  are entitled and which also form a part of the consideration for the payments made by the tenants. (ix)  The appellant carries on its business with a  view  to profits  and it makes profits and declares dividends out  of the profits earned.     From the aforesaid findings recorded by the High  Court, with which we find no reason to disagree, it is evident that the  activity carried on by the appellant falls  within  the ambit  of the expression "industry" defined in Section  2(j) of  the  Act as construed by this Court in  Bangalore  Water Supply  &  Sewerage  Board case (supra). The  Award  of  the Industrial  Tribunal cannot, therefore, be assailed  on  the basis  that  the appellant is not carrying  on  an  industry under the Act.     Shri Nath has next contended that the Industrial  Tribu- nal was not competent to make the Award as the earlier Award dated March 3, 1960, had not been validly terminated. He has urged that the earlier Award was in the nature of a  settle- ment under Section 2(p) of the Act and it could be terminat- ed  only in accordance with Section 19(2) of the  Act.  Shri Nath has pointed out that for terminating a settlement under Section  19(2)  a written notice is  necessary  whereas  for termination  of  an Award under Section 19(6) of the  Act  a written notice is not required and a notice is sufficient.     In our opinion this contention does not require  consid- eration  in  view  of the finding recorded  by  the  learned Judges  of Division Bench of the High Court that the  letter dated November 24, 1966 was a notice 944 under  Section 19(6) as well as under Section 19(2)  of  the Act.  It  has been found that the said letter of  the  union which  was addressed to the Labour Commissioner was sent  to

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the appellant company and that in the said letter there is a clear intimation of the intention of the employees to termi- nate  the Award and from the letter of the  appellant  dated February  13, 1967 it appears that the appellant had  become aware  of the intention of the union to terminate the  Award and  that the order of reference was made on July 29,  1967, long after the expiry of the period of two months. It is not the  requirement  of  Section 19(2) of the  Act  that  there should  be  a  formal notice terminating  a  settlement  and notice  can be inferred from the correspondence between  the parties (See: Indian Link Chain Manufacturers Ltd. v.  Their Workmen,  [1972]  1 S.C.R. 790. In the aforesaid  facts  and circumstances  the High Court was justified in holding  that the  Award dated March 3, 1960 had been  validly  terminated before the passing of the order of reference.     Shri  Nath has urged that there has been  non-compliance of  the  provisions of Section 19(7) of the Act  which  lays down that no notice given under sub-section (2) or  sub-sec- tion  (6)  shall have effect unless it is given by  a  party representing  the majority of the persons bound by the  set- tlement or Award as the case may be. This question has  been raised  by  the appellant for the first in  this  Court.  It involves  an inquiry into questions of fact which cannot  be made  at this stage. The same, therefore, cannot be  allowed to be agitated.     Shri Nath has lastly urged that the Industrial  Tribunal was  in  error in making the Award in relation  to  Dearness Allowance without examining the capacity of the appellant to pay  the  additional amount and that the High  Court  should have  remanded  the matter to the Tribunal  for  considering this issue in the light of the documents which were  submit- ted  by  the  appellant before the High Court.  We  find  no substance  in  this contention. The High Court  has  rightly held  that  in  considering the finding arrived  at  by  the Tribunal  the High Court while exercising  its  jurisdiction under  Article  226  of the  Constitution  should  generally consider  the  materials which were made  available  to  the Tribunal  and  fresh  or further materials  which  were  not before  the  Tribunal should not normally be allowed  to  be placed before the Court. The appellant has not been able  to show  why  the said documents were not produced  before  the Tribunal.  It  is  not the case of the  appellant  that  the Tribunal  had precluded the appellant from  producing  these documents.  In these circumstances we find no  justification for accepting the plea of the learned counsel for the appel- lant for 945 reconsideration of the Award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court. The appeal is, therefore, dismissed with costs.     During  the pendency of this appeal, the  appellant  has made  a deposit before the Tribunal. The  respondent  .union will be entitled to withdraw the said amount along with  the interest that has accrued on it. T.N.A.                                 Appeal dismissed. 946