LexWORKMEN OF METRO THEATRE LTD., BOMBAY versus METRO THEATRE LTD., BOMBAY
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A B c D E F G H 164 WORKMEN OF METRO THEATRE LTD., BOMBAY v. METRO THEATRE LTD., BOMBAY July 31, 1981 (V.D. TULZAPURKAR AND A. VARADARAJAN, JJ.] Labour legislation-Retrospeclivity of the award-Discretion to make the Award with retrospective effect vests with the Tribunal uuder section 17A(4) of the Industrial Disputes Act, 1947-Linkage of dearness allowance with some rational principle-Cost of living indeX and consumer price index principle or on the normal princi'ple of industry-cum-region should be uniform and desirable in one and the same industry-Payment of Gratuity Act, section 4(5)-Award includes any Award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrant such grant. The v.·ages and grauity of the workers of Metro Theatre were governed by an earlier award in Reference No. l of 1968 published in 3-7-1969 which was effective from 1-1-1967, while dearness allowance was governed by the award in Reference No. 440of1970 effective from 1-1-1970. Both these awards \Vere duly terminated by notice and fresh demands for revision of wage scales, dearness allowance, etc. effective from 1-1-1974 were submitted by the workers Union to the Management on 15-4-1974. A reference (IT) No. 248 of 1975 was made on 10-7-1975 to the Industrial Tribunal which by its award dated September 22, 1977 published in Maharashtra Government Gazette on November 3, 1977 granted the revision in wage scales and dearness allowance with effect from 1-1-1977. While granting special leave against the impugned award the Court confined Ethe appeal to three points, namely : (i) retrospectivity of the award : (ii) linkage of dearness allowance to some rational principle and (iii) construction of section 4(5) of the Payment of Gratuity Act, 197J. Allowing the appeal in part on the point of gratuity and remanding to the Tribunal on the question of linkage of dearness allowance, the Court. HELD: I. Under section 17A(4) of the Industrial Disputes Act, 1947 it is a matter of discretion for the Tribunal to decide having regard to the circum- stances of each case from which date its award should come into operation and no general rule can be laid down as to the date from which the Tribunal should bring its award into force and the Supreme Court shall not interfere with the Tribunal's order in that behalf unless substantial ground is made out showing unreasonable exercise or its part, In the instant case, in the absence of any material placed before the Tribunal or even before the Supreme Court by either party as to whether the profits earned by the Company for the years 1974, 1975 and 1976 had been disbursed or were still available with the Company at the time of making the award, a factor relevant on the question of granting retrospectivity and also in view of decreasing trend in the profits made by the Company during the said three years, according to the Exhibit u~s marked by the appellant Union itself, presumably the Tribunal felt that it would be proper to give the revision in wage scales and dearness allowance only from 1-1-1977 onwards and not to give any 1etrospective effect. [167 E-H, 168 A-CJ - - WORKMEN v. METRO THEATRE 165 Wenger and Co. and others v. Their Workmen, 1963 II L.L.J. 403: Bengal A Chemical and Pharmaceutical Works Ltd. v. Its Workmen and Another, 1969 I L.L.J. 751 and Hydro (Engineers) (Pvt.) Ltd. v. Their Workmen, 1969 I L.L.J. 713, followed. 2. On the question of linkage of dearness allowance with some rational principle, uniformity is highly desirable in one and the san1e industry. The very same adjudicator, Shri B.B. Tambe, yet in other Reference (VA) No. 1 of 1979 8 dated June 27, 1980 had awarded payment of dearness allowance linked with the cost living index, while in the instant case, fixed dearness allowance on the normal principle of industry-cum-region. [168 C, G-H, 169 A] 3:1. On true construi.;tion of section 4(5) of the Paym~nt of Gratuity Act, the expression "award" occurring in the said provision does not mean and cannot be confined to "existing award" but includes any award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrent such grant. In the first place, there is nothing in the provision which Hmits the expression "award". Secondly, it cannot be and was not that un
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