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PETITIONER: MESSRS.  CROWN ALUMINIUM WORKS

       Vs.

RESPONDENT: THEIR WORKMEN.

DATE OF JUDGMENT: 15/10/1957

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. BHAGWATI, NATWARLAL H. DAS, S.K.

CITATION:  1958 AIR   30            1958 SCR  651

ACT:        Industrial Dispute-Adjudication-Constitution of wage  struc-        ture-Revision  of  such  structure, if can be  made  to  the        Prejudice of workmen-Convention-Governing Principle.

HEADNOTE:        Although  there  can be no rigid and  inexorable  convention        that a wage structure once fixed can never be changed to the        prejudice   of  the  workmen,  there   are   well-recognised        principles  on  which  such revision must  be  founded,  one        important principle, to which there can be no exception,  is        that  the wages of workmen cannot be allowed to  fall  below        the bare subsistence level.  It follows, therefore, that  no        industry  can  have  the  right to exist  if  it  cannot  be        maintained except by bringing the wages below that level.        The  Constitution  of  India seeks to  create  a  democratic        welfare state and secure social and economic justice to  the        citizens.  Growth of industries and the advent of collective        bargaining   between  organised  labour  and  capital   with        consequent industrial legislation have made absolute freedom        of contract and the doctrine of laissez faire things of  the        past  and  they  have now to yield place  to  principles  of        social welfare and common good.        Industrial adjudication has, thus, to keep in view the ideal        of a democratic welfare state and its immediate objective in        constituting a wage structure must be to secure the  genuine        and wholehearted co-operation between labour and capital  in        the  task  of  production  by a  just  adjustment  of  their        conflicting interests by 83        652        the  application of several principles such as for  instance        the principles of comparable wages, the productivity of  the        trade  or  industry,  cost  of living  and  ability  of  the        industry to pay.        In a case where the wage structure is of a higher  category,        it is open to the employer to claim its revision provided he        can satisfy the Tribunal that such revision is reasonable on        the merits and fair and just to the parties.        Where,  however, the employer’s financial  difficulties  are        sought  to be made a ground for such revision, the  Tribunal        has  to decide whether such difficulties could or could  not

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      be  adequately met by such retrenchment in personnel as  has        already been effected by the employer and sanctioned by  the        Tribunal.        Consequently,  in case where the Industrial  Tribunal  fixed        the  wage structure and the dearness allowance but gave  the        employer  liberty  to abolish the  two  hours’  concessions,        facility  bonus and the food concession, holding them to  be        in the nature of bounty gratuitously paid to the workmen  by        the  employer,  and the Labour Appellate Tribunal  took  the        view  that these concessions, which had been enjoyed by  the        workmen  for a pretty long time as of right and as  part  of        their basic wages and dearness allowance, had become a  term        of  the  conditions of their service and  revised  the  wage        structure  in respect of existing workmen  by  incorporating        the   concessions  into  their  basic  wages  and   dearness        allowance  and  in  doing  so  relied  not  merely  on   the        convention  that the existing emoluments of  workmen  should        not  be  reduced  to  their  prejudice  but  also  on  other        considerations which were neither invalid nor unwarranted by        the evidence, its decision was valid in law.        Held further, that this court would be normally reluctant to        entertain  an objection that any consideration on which  the        Appellate   Tribunal  bad  relied  was  either  invalid   or        unwarranted by the evidence on record.  Where it finds  that        certain  payments  were in fact not gratuitous but  were  in        substance  part  of the wages and  dearness  allowance,  its        decision is not liable to be set aside.

JUDGMENT:        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 235 of 1956.        Appeal  by special leave from the judgment and  order  dated        the  29th  July, 1955, of the Labour Appellate  Tribunal  of        India, Calcutta, in Appeal No. Cal. 182 of 1953.        B.   Sen,  S.  N.  Mukherjee  and  B.  N.  Ghosh,  for   the        appellant.        N.   C.  Chatterjee,  D.  L.  Sen  Gupta  and  Dipak   Datta        Chaudhury, for the respondent.                             653        1957.  October 15.  The following Judgment of the Court  was        delivered by        GAJENDRAGADKAR J.-ThiS appeal by special leave arises out of        an  industrial  dispute between the  appellant  M/s.   Crown        Aluminium  Works,  Belur, represented  by  Jeewanlal  (1929)        Ltd.,  and  its  Workmen  represented  by  Bengal  Aluminium        Workers’  Union.   By their order dated July 31,  1952,  the        Government  of  West Bengal referred  thirteen  matters  for        adjudication  to  Shri  S. K. Niyogi who  was  appointed  to        constitute  the Sixth Industrial Tribunal  for  adjudication        under  s.  10  of the Industrial Disputes  Act,  1947.   The        learned  adjudicator  considered the pleas raised,  and  the        evidence  led, by the parties before him, investigated  into        the  financial position of the appellant and pronounced  his        award  on October 9, 1953, on all matters referred  to  him.        Both parties were aggrieved by the award and that led to two        cross  appeals.   On  July 11, 1955,  the  Labour  Appellate        Tribunal disposed of these appeals by a consolidated  order.        The  workmen appear to be satisfied with this order but  the        appellant  is  not  and so the  present  appeal.   The  main        grievance which Mr. Sen has made before us on behalf of  the        appellant  is  in  respect  of  the  revision  made  by  the        Appellate   Tribunal  in  the  wage  structure   which   was        constituted by the original tribunal.  Thus, the controversy        between the parties in the present appeal lies within a very

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      narrow  compass;  nevertheless,  it would  be  necessary  to        mention  the history of the dispute in some detail in  order        to appreciate properly the points at issue between them.        It  appears  that  in 1947, the  first  Omnibus  Engineering        Tribunal  was constituted to adjudicate upon the  industrial        disputes for the engineering industry in West Bengal and the        matters  referred  to  the  tribunal  included  inter   alia        disputes  in regard to basic wages, dearness  allowance  and        leave.   This tribunal gave a comprehensive award which  was        published  on June 30, 1948.  The appellant was a  party  to        these adjudication proceedings and was governed by the  said        award.  Soon thereafter industrial disputes again arose  be-        tween the engineering industry and its employees and        654        these were referred to another tribunal which in due  course        examined the disputes and pronounced its award.  This  award        was  published  on September 21, 1950.  By  this  award  the        dearness allowance fixed by the first tribunal was increased        on  the ground of rise in the cost of living index  and  the        leave rules prescribed by the earlier award were modified in        the  light  of the provisions of the Indian  Factories  Act,        1948.  After the first award had come into force the  appel-        lant  revised its facility bonus from time to time with  the        object  of keeping pace with the rise in the cost of  living        index.   The  result  was  that  several  components   which        constituted the wage structure paid by the appellant to  his        workmen left no cause for grievance to the workmen.  So they        did  not  raise any dispute for increase in  their  dearness        allowance and the appellant and its workmen were not parties        to  the second arbitration proceedings.  Meanwhile, a  minor        industrial  dispute  arose  between the  appellant  and  its        workmen  and it was referred to the arbitration of  Shri  G.        Palit by the Government of West Bengal by their order  dated        November  24,  1950.   One of the  points  referred  to  the        Tribunal  was  in regard to the amount  of  increment  which        should be granted to workers in 1950 and the date from which        it should be so granted.  The appellant denied its liability        to  pay the increment on the ground that there was  no  wage        structure which permitted such a claim.  The appellant  also        urged  before Shri Palit that its workers were on the  whole        handsomely  remunerated.   In this connection  reliance  was        placed  by  the  appellant  on  the  payments  made  by  the        appellant  to  its workmen by way of special  allowance  and        bonus,  besides dearness allowance and standard  wages.   It        would  thus appear that the appellant resisted the claim  of        its workmen for the increment in wages on the ground that in        the  wage structure of the appellant  additional  components        had been introduced which made ample provision for the  rise        in  the  cost  of  living.  Shri  Palit  was,  however,  not        impressed  with this plea.  He thought that  by  introducing        these components in the wage struture the Managing  Director        "chose to hold        655        the  key  in  his own hands so that he  can  manipulate  the        quantum  of benefit under this head and could adjust  it  to        the output in the factory".  Shri Palit, therefore,  granted        the workmen’s demands by allowing one anna per day increment        though  he frankly confessed that this was not based on  any        actual calculation.  He accordingly, directed the  appellant        to pay the arrears within one month of the award coming into        operation  to  all  workmen  who were in  the  roll  of  the        appellant  at the end of 1950.  Then Shri Palit addressed  a        word  of  caution  to the appellant and  said  that  it  was        necessary that the appellant should fix a wage structure  as        soon as practicable to secure durable peace in the  factory.

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      "It  will be prudent", observed Shri Palit in his  award,  "        for the company to have a hide bound wage structure  instead        of having so many flexible component parts of the wage which        merely  will create unrest".  This in brief is the  previous        history  of  the  dispute. between  the  appellant  and  its        workmen.        On  March  28, 1952, the appellant issued a  notice  to  its        workmen proposing to make certain modifications.  The notice        indicated  that a reduction of the factory hours from 47  to        40  would be made, the facility bonus would be reduced by  3        as.  per  day  and  temporary  dearness  allowance  for  the        salaried  workers would be similarly reduced by 10%  of  the        then  current rates.  The appellant pleaded in  this  notice        that  these economy measures had become necessary  owing  to        the financial set-back of the appellant and would come  into        effect on June 1, 1952.  The Union opposed these changes.  A        joint  discussion was then arranged on June 2 and  June  26,        1952.   It  appears  that  further  economy  measures   were        introduced for discussion between the parties by the  notice        dated May 30, 1952 These further economy measures related to        the reduction of the facility bonus by a further amount of 6        as. per day, withdrawal of two hours’ concession of  special        bonus  and  discharge  of  workers  of  the  rolling   mills        department.   The  Union  did  not agree  to  any  of  these        measures  except the reduction of working hours from  47  to        42-1/2 hours a week.  Since joint consultations did not lead        to any agreement the appellant b its notice        656        dated  June  27,  1952, intimated to the  workers  that  the        reduction  of  working hours and in the facility  bonus  and        dearness  allowance as notified on March 28, 1952, would  be        brought into operation from June 1, 1952.  The workers  were        also told that the two hours’ concession would be  withdrawn        from  July  1, 1952, and the workers in  the  rolling  mills        department  would be discharged with effect from  August  1,        1952.   The  workmen resisted these proposals and  took  the        industrial   dispute   arising  therefrom  to   the   Labour        Commissioner immediately.  Thereafter a joint conference  of        the appellant and its workmen was held on July 4, 1952.  The        intervention of the Labour Commissioner was not effective as        the proposals made by him to resolve the dispute between the        parties  amicably were not acceptable to the  parties.   The        appellant  thereupon discharged the workmen of  the  rolling        mills department, 52 in number, with 14 days’ notice pay and        retrenched  other 227 workers of various categories as  from        July 26, 1952, with a similar notice pay.  The Government of        West Bengal found that conciliation was not possible and  so        the industrial dispute in question was referred to the Sixth        Industrial Tribunal for adjudication.        As  we  are concerned in the present appeal  only  with  the        constitution  of  the  wage  structure  and  some  questions        incidental thereto we will now refer to the decisions of the        lower tribunals only in respect of these matters.  The Sixth        Industrial Tribunal considered the financial position of the        appellant  and revised and reconstituted the wage  structure        and  the  dearness  allowance in the light  of  the  Omnibus        Engineering  Awards  in West Bengal published  in  1948  and        1950.   The  tribunal hold that the  two  hours  concession,        facility bonus and the food concession were in the nature of        bounty  gratuitously paid by the appellant and as such  they        could  be withdrawn by the appellant at its  pleasure.   The        tribunal  also  came to the conclusion that since  the  wage        structure  had been revised and reconstituted properly,  the        appellant should be given liberty to abolish the said three        657

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      concessional  payments.  It may be relevant to observe  that        the tribunal’s conclusion in regard to the character of  the        alleged  concessional payments was based principally on  the        view  that  in  his award Shri Palit  had  held  that  these        payments  were  purely concessional payments  and  that  the        workmen had no right to claim them as constituents of  their        wage structure.        The  Labour  Appellate  Tribunal has not  agreed  with  this        conclusion.  The view that the Appellate Tribunal has  taken        is  that  these so-called concessional  payments  have  been        enjoyed  by the workmen for a pretty long time as  of  right        and as part of their basic wages and dearness allowance  and        as  such they have become a term of the conditions of  their        service.  Besides, the appellate tribunal has observed  that        it has been the convention with industrial tribunals not  to        reduce  the  existing  emoluments of the  workmen  to  their        prejudice.  In the result the wage structure constituted  by        the  tribunal  was modified by the award  of  the  appellate        tribunal   in  respect  of  existing  workmen.    The   main        conditions introduced by these modifications were three:        "  1. The total basic wages of a time-rated worker  together        with  the two hours’ concession immediately  before  1-6-’52        shall hereinafter be called his existing basic wage.        2.   The  total of the temporary dearness allowance and  the        facility bonus as was available to a worker prior to 1-6-’52        and  the  food concession wherever admissible  to  a  worker        under  the rules of the company shall hereinafter be  called        his  existing- dearness allowance, no matter if any  portion        of  these  benefits  has been curtailed or  stopped  in  the        meantime.        3.   The  two hours’ concession, the facility bonus and  the        food  concession shall cease to have any separate  existence        distinct from the basic wages and dearness allowance of  the        worker  on and from the date when this decision  comes  into        force, hereinafter called the relevant date."        Both the original and the appellate tribunals have agreed in        providing  that  the existing basic wages and  the  existing        existing emoluments shall not be reduced.        358        For  the  appellant Mr. Sen has contended  that  the  Labour        Appellate Tribunal was in error in assuming that it has been        the convention in industrial adjudications not to reduce the        existing emoluments of the workmen to their prejudice in any        case.   He  contends that just as the rise in  the  cost  of        living  index  or similar relevant factors may  justify  the        revision of the wage structure in favour of the workmen,  so        should the revision of the wage structure be permissible  in        favour of the employer in case the financial position of the        employer  has  considerably deteriorated or  other  relevant        factors  indicate such a revision.  Indeed Mr. Sen  made  it        clear during the course of his arguments that in the present        appeal  he was more concerned to challenge the  validity  of        the assumption made by the Labour Appellate Tribunal in that        behalf,  rather  than the propriety or  correctness  of  the        actual  modifications made by the Appellate Tribunal in  its        award.   The  point thus raised by Mr. Sen is  no  doubt  of        general  importance  and it must be considered  in  all  its        aspects.        Before  dealing  with this point, it would  be  relevant  to        refer  to the findings made by both the tribunals in  regard        to  the  financial position of the appellant.   The  present        unit of the aluminium industry which was originally  started        by  the Americans was taken over by the appellant  from  the        Americans  on  August  9, 1951.  The main  business  of  the        appellant   is  to  manufacture  household   utensils   from

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      aluminum  circles.   These circles were imported  until  the        last  war.  During the war, import of these articles  became        difficult  and  so  a rolling  mills  department  for  manu-        facturing  circles from scrap materials was started.  It  is        true  that utensils made from such circles were inferior  in        quality; but import difficulties were insurmountable and  so        even these inferior utensils found a good market.  As  soon,        however,  as  better quality circles  became  available  the        demand for these utensils rapidly decreased and the business        began  to incur loss.  The management was thus compelled  to        close down the rolling mills permanently in February,  1952.        As we have already mentioned, the workmen employed                              659        in  the  rolling mills were ultimately  discharged  on  July        15,1952.        The appellant placed before the tribunals below the relevant        figures  from  the  statements  of  accounts  from  1947  to        September  1952.   Both the tribunals  have  examined  these        figures  and have come to the conclusion that  the  economic        position of the appellant on the whole was none too  bright.        Fall  in  the sale of utensils was noticeable  during  these        years and if the utensils were not disposed of in the market        quickly they are likely to lose their luster. and glaze  and        would  be  even  stained if they were to be  stored  in  the        godown  for any length of time.  This in turn would  involve        extra  expenditure and would contribute to  further  losses.        It  appears  to  be  the  concurrent  finding  of  both  the        tribunals  that the manufacturing cost in 1952, as  in  some        preceding   years,   exceeded  the  sale  price   and   this        undoubtedly would be a disquieting feature in any industrial        concern.  The original tribunal did not see any prospect  of        improvement  in the appellant’s financial position;  whereas        the Appellate Tribunal was disposed to take the view that as        a  result  of the substantial retrenchment effected  by  the        appellant  " financial position of the relevant unit of  the        aluminum  industry appears to have improved ". It is in  the        background of these findings that Mr. Sen has contended that        the  wage  structure constituted by the  Appellate  Tribunal        would work a hardship on the appellant and his grievance  is        that  in  reconstituting the wage  structure  the  Appellate        Tribunal was very much influenced by the assumption that the        wage  structure  can never be revised to  the  prejudice  of        workmen.        In  dealing with this question, it is essential to  bear  in        mind the main objectives which industrial adjudication in  a        modern democratic welfare state inevitably keeps in view  in        fixing  wage structures.  ".It is well known " observes  Sir        Frank Tillyard, " that English Common Law still regards  the        wage  bargain as a contract between an  individual  employer        and an individual worker, and that the general policy of the        law has been and is to leave to the two        84        560        contracting parties a general liberty of bargaining, so long        as there are no terms against public policy " (1).  In India        as  well as in England and other democratic  welfare  states        great inroad has been made on this view of the Common Law by        labour welfare legislation such as the Minimum Wages Act and        the  Industrial  Disputes Act.  With the  emergence  of  the        concept  of a welfare state, collective  bargaining  between        trade  unions  and  capital has come into its  own  and  has        received  statutory  recognition;  the state  is  no  longer        content  to  play  the  part of a  passive  onlooker  in  an        industrial  dispute.   The  old principle  of  the  absolute        freedom  of contract and the doctrine of laissez faire  have

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      yielded place to new principles of social welfare and common        good.  Labour naturally looks upon the constitution of  wage        structures as affording "a bulwark against the dangers of  a        depression, safeguard against unfair methods of  competition        between employers and a guarantee of wages necessary for the        minimum  requirements of employees " (2).  There can  be  no        doubt   that   in  fixing  wage  structures   in   different        industries, industrial adjudication attempts, gradually  and        by  stages  though  it  may  be,  to  attain  the  principal        objective  of  a welfare state, to secure "to  all  citizens        justice,  social and economic".  To the attainment  of  this        ideal the Indian Constitution has given a place of pride and        that  is the basis of the new guiding principles  of  social        welfare and common good to which we have just referred.        Though social and economic justice is the ultimate ideal  of        industrial  adjudication,  its  immediate  objective  in  an        industrial dispute as to the wage structure is to settle the        dispute  by constituting such a wage structure as  would  do        justice  to the interests of both labour and capital,  would        establish harmony between them and lead to their genuine and        wholehearted co-operation in the task of production.  It  is        obvious  that co-operation between capital and labour  would        lead  to more production and that naturally  helps  national        economy and progress.  In achieving this        (1)  "The Worker and the State " by Sir Frank Tillyard,  3rd        Ed, P. 37.        (2)" wage Hour Law" Coverage-- By Herman A. Wecht, p.2.                                661        immediate  objective,  industrial  adjudication  takes  into        account  several  principles  such  as,  for  instance,  the        principle of comparable wages, productivity of the trade  or        industry, cost of living and ability of the industry to pay.        The application of these and other relevant principles leads        to   the  constitution  of  different  categories  of   wage        structures.   These categories are’ sometimes  described  as        living  wage, fair wage and minimum wage.  These  terms,  or        their   variants,   the  comfort  or  decency   level,   the        subsistence level and the poverty or the floor level, cannot        and do not mean the same thing in all countries nor even  in        different  industries  in  the same  country.   It  is  very        difficult  to  define  or even to  describe  accurately  the        content  of  these different concepts.  In the  case  of  an        expanding national economy the contents of these expressions        are also apt to expand and vary.  What may be a fair wage in        a particular industry in one country may be a living wage in        the  same industry in another country.  Similarly, what  may        be  a fair wage in. a given industry today may cease  to  be        fair  and  may  border  on  the  minimum  wage  in   future.        Industrial adjudication has naturally to apply carefully the        relevant  principles  of  wage structure  and  decide  every        industrial  dispute so as to do justice to both  labour  and        capital.  In deciding industrial disputes in regard to  wage        structure,  one of the primary objectives is and has  to  be        the restoration of peace and goodwill in the industry itself        on  a fair and just basis to be determined in the  light  of        all   relevant  considerations.   There  is,  however,   one        principle which admits of no exceptions.  No industry has  a        right to exist unless it is able to pay its workmen at least        a  bare  minimum wage.  It is quite likely  that  in  under-        developed  countries, where unemployment prevails on a  very        large   scale,  unorganised  labour  may  be  available   on        starvation wages; but the employment of labour on starvation        wages cannot be encouraged or favored in a modern democratic        welfare   state.   If  an  employer  cannot   maintain   his        enterprise  without cutting down the wages of his  employees

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      below  even  a bare subsistence or minimum  wage,  he  would        have no right to conduct his enterprise on such terms.        662        In  considering  the  pros and cons of  the  argument  urged        before us by Mr. Sen, this position-must be borne in mind.        The  question  posed before us by Mr. Sen is: Can  the  wage        structure fixed in a given industry be never revised to  the        prejudice of its workmen?  Considered as a general  question        in the abstract it must be answered in favour of Mr. Sen. We        do  not  think  it  would  be correct  to  Bay  that  in  no        conceivable circumstances can the wage structure be  revised        to the prejudice of workmen, When we make this  observation,        we must add that even theoretically no wage structure can or        should  be  revised  to  the prejudice  of  workmen  if  the        structure  in  question falls in the category  of  the  bare        subsistence  or the minimum wage.  If the wage structure  in        question  falls in a higher category, then it would be  open        to the employer to claim its revision even to the  prejudice        of the workmen provided a case for such revision is made out        on  the  merits  to the satisfaction of  the  tribunal.   In        dealing  with  a claim for such revision, the  tribunal  may        have  to  consider.,  as in the  present  case  whether  the        employer’s  financial difficulties could not  be  adequately        met  by  retrenchment in personnel already effected  by  the        employer  and sanctioned by the tribunal.  The tribunal  may        also  enquire whether the financial difficulties facing  the        employer  are likely to be of a short duration or are  going        to  face  the employer for a fairly long time.   It  is  not        necessary,  and  would indeed be very  difficult,  to  state        exhaustively  all considerations which may be relevant in  a        given  case.  It would, however, be enough to observe  that,        after considering all the relevant facts, if the tribunal is        satisfied  that a case for reduction in the  wage  structure        has  been established then it would be open to the  tribunal        to accede to the request of the employer to make appropriate        reduction in the wage structure, subject to such  conditions        as  to time or otherwise that the tribunal may deem  fit  or        expedient  to impose.  The tribunal must also keep  in  mind        some   important  practical   considerations.    Substantial        reduction  in  the  was  structure  is  likely  to  lead  to        discontent among        663        workmen  and may result in disharmony between  the  employer        and  his employees; and that would never be for the  benefit        of the industry as a whole.  On the other hand, in assessing        the  value  or  importance  o  possible  discontent  amongst        workmen  resulting from the reduction of  wages,  industrial        tribunals will also have to take into account the fact  that        if any industry is burdened with a wage structure beyond its        financial  capacity, its very existence may be  in  jeopardy        and that would ultimately lead to unemployment.  It is  thus        clear  that  in all such cases all  relevant  considerations        have  to be carefully weighed and an attempt has to be  made        in each case to reach a conclusion which would be reasonable        on  the  merits  and  would be fair and  just  to  both  the        parties.   It  would  be  interesting  to  notice  in   this        connection  that all the tribunals that have dealt with  the        present  dispute  have consistently directed  that  existing        wages should not be reduced to the prejudice of the workmen.        In other words, though each tribunal attempted to constitute        a wage structure in the light of materials furnished to  it,        a  saving  clause has been added every time  protecting  the        interests  of  such  workmen as were  drawing  higher  wages        before.   Even so, it would not be right to hold that  there        is a rigid and inexorable convention that the wage structure

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      once  fixed by industrial tribunals can never be changed  to        the  prejudice of workmen.  In our opinion,  therefore,  the        point  raised  by  Mr. Sen must be answered  in  his  favour        subject  to such relevant considerations and limitations  as        we have briefly indicated.        Mr. Sen is, however, not right in contending that the  final        decision  of the Appellate Tribunal is based solely or  even        chiefly  on  the alleged convention to which  the  Appellate        Tribunal has referred.  As we have already pointed out,  the        tribunal has also found that substantial retrenchment  which        has been sanctioned by both the tribunals would improve  the        financial position of the appellant.  In the opinion of  the        Appellate  Tribunal,  the downward tendency in the  cost  of        living index on which the appellant partly relied could not         be considered in the present proceedings since no        664        specific  issue  had been referred to the tribunal  in  that        behalf.   Besides, enough material had not been produced  to        show to what extent the cost of living index had fallen  and        whether  this fall was temporary or had come to  stay.   The        Appellate Tribunal, it appears, thought that the wages  paid        by the appellant to its workmen "are the irreducible minimum        or  may at-best be in the region of fair wages with a  small        margin  over  the minimum wage." If, in reaching  its  final        conclusions, the Appellate Tribunal has relied not only upon        the alleged convention but also upon the other circumstances        just  mentioned,  it  would  not be fair  to  say  that  its        conclusion  is  vitiated  in law or  is  otherwise  unsound.        Normally, this court would be slow to entertain an objection        that some of the considerations which have weighed with  the        Appellate Tribunal in reaching its final decision are either        invalid  or  are  not borne out by  sufficient  evidence  on        record.        There is another point which Mr. Sen has raised before us in        regard  to the true character of the  concessional  payments        made  by the appellant to its work. men and which have  been        incorporated   by  the  Appellate  Tribunal  in   the   wage        structure.   The Appellate Tribunal has taken the view  that        these concessional payments really amounted to payments made        to  the  workmen  as  a  matter  of  right  and  it  is  the        correctness of this conclusion that is challenged before  us        by  Mr.  Sen.  Let us then consider  the  genesis  of  these        payments.   Prior to the new Factories Act, the  appellant’s        workmen worked on an average for 59 hours of work made up of        the  usual  54  hours  of  work  and  overtime.   After  the        Factories  Act came into force, the working hours had to  be        reduced  but in order to compensate the time.  rate  workers        for  reduction in their wages, the management added  to  the        daily earnings of such workers the wages for two hours.  The        additional two hours’ wages thus awarded to the workers came        to be known as two hours’ concession or special bonus.  This        bonus  was  introduced  in August, 1946.   In  April,  1945,        facility  bonus  had been introduced at 3 as.  per  day  for        workers getting basic wages equal to or less than 10 as. per        day  and 4 as. per day for workers whose basic wages were        665        over  10 as. per day.. It appears that this  facility  bonus        was  revised from time to time in the upward direction,  and        it  used to be paid prior to June 1952 at a graduated  scale        linked to the basic wages in slabs’ varying from 6 as. to 12        as.  per  day.   Besides,  the  appellant  introduced   food        concession  to  workers employed prior to  1951.   Thus  the        constitution  of  the  wage  structure  in  the  appellant’s        concern included dearness allowance, facility bonus and food        concession.   In  dealing  with the  true  nature  of  these

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      payments   it  is  necessary  to  take  into   account   the        appellant’s  case  as deposed to by the  appellant’s  Labour        Officer  and Assistant to the Manager, Shri Jaisuklal  Shah.        According to Shri Shah, the facility bonus was an additional        allowance for the high cost of living very much on the  same        footing  as  dearness allowance.  " Two  hours’  allowance",        said  Shri Shah, " is referred to as special bonus or  extra        bonus.  It was paid because the workers demanded and it  was        possible  to  pay it at that time ". These  statements  lend        considerable support to the workmen’s case that the payments        in question constituted a part of the wage structure of  the        appellant.   Indeed, even in the statement of the  appellant        before  the industrial tribunal in the present  proceedings,        it  is  specifically averred in paragraph 2  that  prior  to        June,  1952, the company’s pay structure consisted  of  five        items,  viz.,  (1) basic wage, (2) dearness  allowance,  (3)        special bonus or extra bonus, (4) facility bonus or  special        allowance, and (5) food concession.  The attitude adopted by        the appellant before Shri Palit is also consistent with this        pleading  and  with the evidence given by Shri Shah  in  the        present  proceedings.  Before Shri Palit, the appellant  had        urged  that there was no occasion to grant increment to  its        workmen  because under the categories of several  allowances        the company had substantially constituted its wage structure        to the benefit of the workmen.  In this connection, it would        also  be  material to point out that it  was  because  these        additional  payments  were  made by  the  appellant  to  its        workmen  that the workmen did not raise any dispute and  did        not  join  the arbitration  before  the  Second  Engineering        Tribunal. Besides,        666        that  also is a relevant factor to consider in dealing  with        the  true  character  of  these  payments.   If  the  Labour        Appellate  Tribunal  took into account all these  facts  and        held that the payments in question are not matters of bounty        but that, in essence and in substance, they form part of the        basic wage and dearness allowance payable to the workmen, we        see  no reason to interfere with its conclusion.  It is  not        disputed  before  us that if this conclusion is  right,  the        Labour  Appellate  Tribunal has properly  revised  the  wage        structure  as  constituted  by  the  original  tribunal  and        included the payments in question in appropriate categories.        There  is  one more point which may be mentioned  before  we        part  with this case.  Mr. Sen incidentally argued that  the        result of the award passed by the Labour Appellate  Tribunal        is that there will be two scales of wage structure, one  for        those who are already in the employment of the appellant and        the other for the new entrants.  Since we have held that the        modifications  made by the Appellate Tribunal in  favour  of        the  existing workmen cannot be successfully  challenged  by        the  appellant,  we do not think it  necessary  to  consider        whether wage structure which has been fixed by the Appellate        Tribunal  in regard to new entrants into the service of  the        appellant is justified or not.        The  result is that both the contentions raised by  Mr.  Sen        substantially   fail.   The  appeal  must   accordingly   be        dismissed with costs.        Appeal dismissed.        667