judgement:
ON: Criminal Appeal No. 126 of 1955.
Appeal by special leave from the judgment and order dated the 9th August 1955 of the Bombay High Court in Criminal Application No. 726 of 1955.
M. R. Parpia, J. B. Dadachanji and section N. Andley, for the appellant.
M. C. Setalvad, Attorney General for India, B. Sen and R. H. Dhebar, for the respondent.
April 24.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the judgment of the High Court of Bombay dismissing an application made to it under article 226 of the Constitution.
These proceedings relate to the validity of an order of detention passed by the Government of Bombay on the 8th June, 1955, against the appellant before us, who is an Advocate of the High Court of Bombay having a standing of about thirty years.
He was in the Indian Air Force as an emergency Commissioned Officer between 1943 to 1948 and thereafter on extension for another four years until he attained the age of 55.
It appears that he was also interested in journalism and in public affairs.
On his own showing, he was concerned over the political future of Goa and "was opposed to any attempts at intimidation of Indian residents of Goan origin by other political groups and has freely expressed these views in his journalistic articles".
He was arrested on the 9th June, 1955, and is in detention since then under the impugned order, which runs as follows: 384 "No. P. D. A. 1555A. Political and Services Department, Secretariat, Bombay, 8th June, 1955.
O R D E R.
Whereas the Government of Bombay is satisfied with respect to the person known as Shri Lawrence Joachim Joseph DeSouza of Bombay, that with a view to preventing him from acting in any manner prejudicial to the relations of India with the Portuguese Government and to the Security of India, it is necessary to make the following Order: Now, therefore, in exercise of the powers conferred by sub clause (1) of clause (a) of sub section (1) of section 3 of the (Act IV of 1950) the Government of Bombay is pleased to direct that Shri Lawrence Joachim Joseph DeSouza of Bombay, be detained.
By Order and in the name of the Governor of Bombay.
Under Secretary to the Government of Bombay.
Political and Services Department".
In pursuance of section 7 of the (Act IV of 1950) (hereinafter referred to as the Act) the grounds of detention, also dated the 8th June, 1955, was served on him along with the order of detention.
The validity of the order is challenged on the following contentions.
1.The order of detention was mala fide.
It was passed for the ulterior purpose of preventing his freedom of speech and freedom of professional activity in the sphere of Goan affairs by reason of his known views in this behalf.
2.The detaining authority,in exercising its power, failed to apply its mind to the existence or otherwise of the legitimate objects of detention.
The grounds of detention are vague.
385 4.The claim of State that no particulars of the grounds could be furnished in public interest is unsustainable and in any case mala fide.
The last two have been urged before us not only as independent points but as reinforcing the first two.
The challenge to the validity of the order based on the attack of mala fides and non application of the, mind of the detaining authority, have been urged before us with great insistence.
We have been taken elaborately into what is claimed to be the relevant previous background of events.
This part of the argument raises, what ultimately are questions of fact which have been fully considered by the High Court.
It is, therefore, enough to state, in its broad outlines, the background, which is alleged as follows: (1)(a) There was a sudden search by the police on the 24th August, 1954, at the appellant 's place for alleged possession of illicit liquor.which, in fact, was not found.
But under the guise thereof the police seized and carried away a mass of documents, papers and printed material of the appellant as also a typewriter belonging to him.
(b)On the same day, a search was carried out by the police also at his residence at Mahim but nothing was found.
(c)Immediately following the searches, the appellant was taken into illegal police custody and interrogated, and physically assaulted, and threatened.
The above high handed action of the police, by way of search and seizure, was the subject matter of challenge by the appellant by means of a writ application in the High Court in which the police officers concerned filed affidavits virtually admitting the appellant 's allegations relating to seizure of papers, etc.
The State itself could not support the said highhandedness.
As a result, the High Court directed on the 3rd November, 1954, the return forthwith of all the papers and articles seized.
Notwithstanding that order, the materials so illegally seized were returned only on or about the 21st January, 1955.
(2) When one Joaquim Carlos, a Portuguese soldier 386 attached to Goan forces, was arrested on a charge of entering Indian territory without the requisite authority, the appellant rendered professional assistance to him and obtained an order of release on bail from the Chief Presidency Magistrate, Bombay, which was foiled by the police by removing him away to Sawantwadi before the requisite sureties could be obtained at Bombay.
The trial was hurried through and the said Carlos was convicted.
But on appeal, filed by the appellant, before the Sessions Judge, the conviction was set aside and retrial ordered.
These events happened between February to April, 1955.
(3)Between April, 1955 to June, 1955, there occurred certain incidents which were inspired and instigated by the members of the Goan Action Committee who were agitating against Portuguese hold over Goa.
There was a raid on certain pro Portuguese presses by some private persons, in the course of which heavy damage was caused.
There was also an assault on himself (appellant) by a gang of persons of whom some were employees of the Goan Action Committee.
In respect of these two incidents private complaints had been filed by or on behalf of the affected persons.
The attitude and behaviour of the police in respect of these complaints were clearly indicative of their being in league with the Goan Action Committee.
The appellant 's counsel strongly urged that the bona fides of the detaining authority is to be judged with reference to the above background of events and that viewed in that light the vagueness of the grounds and the belated claim of privilege under article 22(6) of the Constitution strengthen his contention.
He also relied on what are urged as being certain discrepancies in the affidavits of the Under Secretary and the Chief Secretary filed in the High Court in these proceedings.
It is strongly urged that the order of detention was made without any real application of mind by the detaining authority, that the authority acted merely at the instance of the police who were in league with the Goan Action Committee, and that the police procured the detention 387 order for the purpose of suppressing the freedom of the appellant, to ventilate his point of view on the Goan politics and to take up professionally the cause of persons in the position of Carlos.
We have been taken through all the material relating to the above allegations and have given our consideration to the same.
It is enough to say that we are unable to see any reason for disagreeing with the conclusion of the High Court to the effect that the material is not enough to make out that the detaining authority was acting otherwise than bona fide.
We also agree with the view of the High Court that, what has got to be made out is not the want of bona fides on the part of the police, but want of bona fides, as well as the non application of mind, on the part of the detaining authority, viz. the Government, which for this purpose must be taken to be different from the police.
It is also clear that the allegation of non application of mind by the detaining authority is without any basis, in view of the affidavit of the Chief Secretary.
The further points that remain for consideration are those which relate to the complaint of vagueness of the grounds furnished and the alleged unsustainable claim for non disclosure under article 22(6) of the Constitution on behalf of the detaining authority, to get over the alleged vagueness.
To appreciate the points thus raised, it is necessary to have an idea of the grounds of detention as furnished.
They are to be found from the relevant communication to the detenue which is as follows: "In pursuance of section 7 of the (Act IV of 1950) you are hereby informed that the grounds on which a detention order has been made against you, by the Government of Bombay under sub clause (1) of clause (a) of subsection (1) of section 3 of the said Act are that: With the financial help given by the Portuguese authorities you are carrying on espionage on behalf of the Portuguese Government with the help of underground workers.
You are also collecting intelligence about the security arrangements on the border area and you make such intelligence available to the Portu 388 guese authorities.
These activities which are being carried on by you with the object of causing further deterioration in the relations between the Portuguese Government and the Indian Government over the question of Goan National Movement, are prejudicial to the security of India and to the relations of India with Portugal.
2.If you wish to make a representation against the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintendent, Arthur Road Prison, Bombay.
3.You are also informed that you have a right to claim a personal hearing before the Advisory Board and that you should communicate to Government of Bombay as soon as possible your intention of exercising or not exercising that right".
The objection by the appellant relating to this is contained in paragraph 15(g) of his application before the High Court.
It is as follows: "The grounds are not specific and no particulars of the activities alleged to have been carried on by the petitioner are given, viz. the particulars such as the length of period for which the petitioner is alleged to have carried on the so called espionage activities or the details of financial aid alleged to have been received by the petitioner from the Portuguese authorities or the names of any of the so called underground workers alleged to be aiding the petitioner or any details of intelligence alleged to have been collected by the petitioner or made available by him to the Portuguese Government".
The answer thereto of the Under Secretary to the Government of Bombay is in paragraph 12 of his affidavit dated the 25th July, 1955, and is as follows: "With reference to paragraph 15, clause (g), I submit that it is not necessary to mention particulars of the espionage activities carried on by the petitioner or the details of the financial aid received by him or the names of the persons aiding the said petitioner.
It is not in public interest to disclose these details; nor is it necessary to mention these matters to afford 389 the petitioner reasonable opportunity to make a representation" Now the question as to whether the grounds furnished are vague or not, is ultimately a question that has to be determined on a consideration of the circumstances of each case, as was pointed out by this court in the State of Bombay vs Atma Ram Sridhar Vaidya(1) in the following passage: "The contention that the grounds are vague requires some clarification. . . .
If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague.
It is not possible to state affirmatively more on the question of what is vague.
It must vary according to the circumstances of each case. . . .
If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague".
In the present case, the detenue has been intimated why, in the opinion of the Government the activities of the appellant are considered prejudicial to the security of India and to the relations of India with Portugal.
They are the following: 1.With the financial help given by the Portuguese authorities, he is carrying on espionage on behalf of the Portuguese Government with the help of underground workers.
2.He is collecting intelligence about the security arrangements on the border area and making such intelligence available to the Portuguese authorities.
3.He is carrying on these activities with the object of causing further deterioration in the relations between the Portuguese Government and the Indian Government over the question of the Goan National Movement.
It is true that these allegations are not as precise and specific as might have been desired.
But having regard to the nature of the alleged activities of the appellant, it is not unlikely that no more could be gathered or furnished.
In this context it is relevant (1) ; ,184.
51 390 to notice that the appellant himself does not appear to have felt that the grounds furnished were so vague as to hamper him in his right to make a representation under article 22(5) and section 7 of the Act.
It does not appear that he applied to the Government to be supplied with particulars of the grounds furnished to him.
Such a right to call for particulars has been recognised in the case in the State of Bombay vs Atma Ram Sridhar Vaidya(1) as flowing from his constitutional right to be afforded a reasonable opportunity to make a representation to the Board.
In that case it has been stated that "if the grounds are not sufficient to enable the detenue to make a representation, the detenue. . if he likes, may ask for particulars which would enable him to make the representation".
The fact that be bad made no such application for particulars is, therefore, a circumstance which may well be taken into consideration, in deciding whether the grounds can be considered to be vague.
In the circumstances and having regard to thefact that what is alleged is espionage activity ata time when relations between the two Governments on the affairs of Goa were somewhat delicate, we are inclined to think, with the High Court, that the grounds cannot be considered to be vague.
Assuming however that the grounds furnished in this case are open to the challenge of vagueness, the further question which arises is whether the validity of the order of detention can be sustained by reason of the claim, in public interest, of non disclosure of facts made by the Under Secretary to the Government of Bombay by means of his affidavit filed in the High Court.
Now it has been held in Atma Ram Sridhar Vaidya 's case(1) by the majority of the Court, that the constitutional right of a detenue under article 22(5) comprises two distinct components.
1.The right to be furnished grounds of detention as soon as may be; and 2.The right to be afforded the earliest opportunity of making a representation against his detention (1) ; ,184. 391 which implies, the right to be furnished adequate particulars of the grounds of detention, to enable a proper representation being made.
These rights involve corresponding obligations on the part of the detaining authority.
It follows that the authority is under a constitutional obligation to furnish reasonably definite grounds, as well as adequate particulars then and there, or shortly thereafter.
But the right of the detenue to be furnished particulars, is subject to the limitation under article 22(6) whereby disclosure of facts considered to be against public interest cannot be required.
It is however to be observed that under article 22(6) the facts which cannot be required to be disclosed are those "which such authority considers to be against public interest to disclose".
Hence it follows that both the obligation to furnish particulars and the duty to consider whether the disclosure of any facts involved therein is against public interest, are vested in the detaining authority, not in any other.
It was accordingly attempted to be argued in the High Court that the claim of non disclosure made in the affidavit of the Under Secretary indicated a decision for nondisclosure, by the Under Secretary himself and that too at the time of filing the affidavit.
On this assumption it was contended that the claim for non disclosure was invalid.
The High Court, however, on a consideration of the material, felt satisfied that what was stated in the affidavit related to the decision of the detaining authority itself, taken at the time.
The learned Judges expressed their conclusion as follows: "There is nothing in the affidavit of Mr. Bambawala to suggest that it is now that the detaining authority is claiming privilege or applying its mind to the question of privilege. . . . .
The meaning is clear that at no time it was in public interest to disclose the details referred to in the particular paragraph of the affidavit and there is nothing to suggest that this question was not considered by the detaining authority at the time when the grounds were furnished".
No argument has been addressed to us how this con 392 elusion is incorrect.
But what has been urged before us is that the decision not to disclose the facts as well as the ambit of the non disclosure must be clearly communicated to the detenue at the time when the grounds are furnished.
It is urged that if the detenue is furnished information, at least to that extent, it will enable him to present to the Advisory Board his difficulties in making a proper representation and to convey to it a request for obtaining the requisite particulars from the State under section 10 of the Act for their own information and consideration.
We are unable to imply any such obligation under article 22(5) and (6).
The necessity for such a communication would arise only if the detenue, feeling the grounds to be vague, asks for particulars.
An obligation to communicate the decision not to disclose facts considered prejudicial to public interest may well be implied in such a situation.
But in the absence of any such request by the detenue, the non communication of the decision cannot be held to have hampered his constitutional right of representation and an obligation to communicate cannot be implied in these circumstances.
In the present case there is no merit in this contention.
If the appellant bad exercised his right to ask for particulars, at the time, from the detaining authority, there can be no doubt that he would have been furnished then the very information which has been supplied in paragraph 12 of the Under Secretary 's affidavit in answer to para 15(g) of the appellant 's petition, both of which have been already set out above.
A faint suggestion has been made in the course of the arguments before us that the decision not to disclose particulars is mala fide and that such mala fides has to be imputed in a case where no particulars are at all furnished.
It is suggested that the power not to disclose facts considered against public interest cannot be so exercised as to nullify the constitutional right of the detenue for being afforded a proper opportunity of representation.
Such a contention as to the mala fide exercise of the power is untenable in the present case having regard to the nature of the 393 grounds on which the detention is based and the nature of activities imputed therein to the appellant.
It is unnecessary, therefore, to deal in this case with a theoretical contention as to whether or not article 22(6) of the Constitution overrides the constitutional right to be furnished particulars under article 22(5) to the extent of denying all particulars and leaving the grounds absolutely vague.
All the contentions raised before us fail and this appeal is dismissed.

summary:
Appellant was detained under section 3(1)(a)(i) of the Preventive Detention Act, Act IV of 1950 on the grounds that with the financial help given by the Portuguese authorities he was carrying on espionage on their behalf with the help of underground workers and that he was also collecting intelligence about the security arrangements on the border area and was making such intelligence available to the Portuguese authorities.
Appellant made no application to the Government for further particulars.
Held, that in these circumstances and having regard to the fact that what is alleged is espionage activity, the grounds could not be considered to be vague.
In answer to the objection in the writ application before the High Court that the grounds were not specific and that no particular of the alleged activities of the appellant were given the Under Secretary to the Government in his affidavit claimed privilege under article 22(6) of the Constitution.
Held, that the right of the detenue to be furnished particulars is subject to the limitation under article 22(6).
Hence even if the grounds are vague due to the reason that facts cannot be disclosed in the public interest, the order of detention cannot be challenged on the ground of such vagueness.
The necessity of communicating the decision to claim privilege under article 22(6) would arise only when the detenue asks for parti 383 culars.
In the absence of any such request by the detenue, the noncommunication of the decision cannot be hold to have hampered his constitutional right to make his representation.
Mala fides must be made out against the detaining authority and not against the police.
The contention of mala fides is untenable in the present case having regard to the nature of the grounds and to the nature of the activities imputed to the appellant.


judgement:
Civil Appeals Nos. 2299 and 2300 of 1979.
Appeal by Special Leave from the Award dated 20 12 1978 of the Industrial Tribunal Maharashtra in Reference (IT) No. 292 of 1975, published in Maharashtra Government Gazette dated 15th February, 1979.
G. B. Pai, Manick K. Gagrat, J. B. Dadachanji, O. C. Mathur and K. J. John for the Appellants in CA No. 2299 and Respondents in CA 2300/79.
V. M. Tarkunde, P. H. Parekh, section R. Deshpande and Miss Manik Tarkunde for the Respondents in CA 2299 and Appellants in CA No. 2300/79.
The following Judgements were delivered: PATHAK, J.
This appeal by special leave has been preferred by Tata Consultancy Engineers against an award dated 20th December, 1978 of the Industrial Tribunal, Maharashtra, Bombay revising the wage scales of certain categories of employees and granting various other benefits.
Tata Consultant Engineers, at its inception, was a partnership firm but subsequently the partnership was dissolved and in 1974 the undertaking became one of the divisions of Tata Sons Limited.
It functions as a consulting organisation and a service industry, and does not manufacture any product or carry on trade.
Its work force consists of engineers and supervisors and different categories of workmen.
Out of 665 employees at Bombay, the draftsmen and the administrative staff number 306.
These workmen are members of the Tata Consultant Employees Union.
They served a Charter of Demands in July, 1974, on the appellant, and as their demands were not accepted and conciliation proceedings proved fruitless, the State Government made a reference of the dispute under section 10(1) (d), Industrial Tribunal, Maharashtra for adjudication.
The Reference was numbered I. T. No. 292 of 1975.
170 The Union filed a statement before the Tribunal claiming an upward revision of the wage scales and dearness allowance and an increase from fifteen years to twenty years in the span for earning annual increments.
It was urged that the Efficiency Bar, as a feature of the wage scales, should be removed.
The dearness allowance, it was claimed, should be granted on a slab system.
The claim of the Union was resisted by the appellant, who maintained that the existing wage scales were fair and reasonable on a region cum industry basis and that it would not be possible for the appellant to bear the additional financial burden if the demands of the Union were accepted.
Reference was made to the political uncertainty in Iran which had placed an appreciable part of the appellant 's business in jeopardy and to various other factors, peculiar to an engineering consultancy business, beyond the appellant 's control.
There was fierce competition also, it was asserted, from other similar organisations.
The appellant had introduced various pay scales in 1973 and some time later they were revised.
There was no separate dearness allowance until January, 1977 when it was introduced for the first time.
House rent allowance was also paid.
Dearness allowance became payable at 10% of the basic wage subject to a minimum of Rs. 50/ and house rent allowance at 30% of the basic salary.
Nothing those facts, the Tribunal observed that compared with the increased paying capacity of the appellant, an inference drawn from the prosperity enjoyed by the appellant over the years, there was definite need for revising the wage scales.
It was pointed out that the dearness allowance and house rent allowance granted by the appellant made little impact in neutralising the cost of living.
The need for revising the wage scales was not disputed by the appellant.
In proceeding to revise the wage structure the Tribunal took into account the two principles involved in the process, the financial capacity of the industry to bear the burden of an increased wage bill, and the prevailing wage structure on an industry cum region basis.
Wage scale statements were filed by the parties before the Tribunal pertaining to several engineering consultancy organisations but in the absence of pertinent information concerning the strength of their labour force, the extent of their business, the financial position for some years, the capital invested, the precise nature of the business, the position regarding reserves, dividends declared and future prospects of the company, the Tribunal found that it was unable to rely on them as comparable concerns.
Holding it impossible in the circumstances to apply the principle of industry cum region basis, the Tribunal turned to a consideration of the financial capacity of the company to bear an additional burden.
171 in this connection, it proceeded on the footing that the appellant was a separate and independent division of Tata Sons Limited and had no "functional integrality" with the other divisions.
Having regard to the net profits earned by the appellant from 1968 to 1977 it found that the acceptance of the demands of the Union would result in an increased burden of Rs. 7 crores, a burden which would dry up the appellant 's resources and would be impossible for it to bear.
The Union modified its demands but even the modified terms, according to the Tribunal, appeared to be on the high side inasmuch as the resulting total burden of Rs. 1.70 crores was much higher than the average profits could sustain.
The particular character of the appellant, that it was a service industry and not a manufacturing concern, was taken into account and it was observed that unlike a manufacturing business there was little scope for diversification in the case of an engineering consultancy.
Nonetheless, the Tribunal observed, there was every reason to expect that the appellant would be able to earn sound profits in the future, and the instability in its business activities occasioned by the turbulent political situation in Iran, would be, it was expected, compensated by contracts secured in different developing countries.
For the purpose of determining the financial capacity of the appellant, the Tribunal followed Unichem Laboratories vs Their Workmen(1) where it was held that the gross profits should be computed without making deductions on account of taxation, development rebate and depreciation.
It decided also that there was no ground for deducting the notional value of gratuity.
Revising the figures on that basis, it computed the annual gross profits for the years 1968 to 1977 and determined the annual average at Rs. 26.69 lakhs.
The Tribunal took note of the elaborate scales of wages already existing in the wage structure of the appellant and decided "to modify the existing structure of the scales with flat increases in each category.
" It also observed that the category of Draughtsmen needed a special increase.
But it rejected the demand of the Union for dearness allowance on the basis of a slab system, because that would have imposed an unacceptable burden on the appellant 's financial capacity and there was no reason why the existing scheme of dearness allowance should be disturbed when a substantial increase was being made in the level of the basic wage.
Taking into account the circumstance that besides the staff of 306 workmen represented by the Union there were several other employees who would also have to be paid, the Tribunal considered it fair, in paragraph 23 of the award, to give a flat increase of Rs. 150/ in the category of Draughtsmen and Rs. 100/ in the case of other categories.
It rejected the demand of the Union 172 for abolishing the Efficiency Bar, but the span of 15 years for earning increment was expanded in some grades to 20 years and some adjustments were also made in specific grades.
The Tribunal also noted that after the salaries of the employees had been fixed in the respective scales, senior employees would have to be given some more increments in the new scales according to their completed years of service.
Taking all these factors into consideration, it made an award dated 20th December, 1978 prescribing the following revision in the existing scales of wages: Grade & Category Existing Grade/ Revised Grade/ Scale Scale I Peon/Helper/ Rs. 250 10 300 EB Rs. 350 10 450 15 Sweeper 10 400.
II Driver/Asstt.
Rs. 300 10 420 EB Rs. 400 15 520 20 House keeper/ 15 540.
660 EB 25 785.
Caretaker.
III Jr. Clerk cum Rs. 350 15 425 EB Rs. 450 20 550 25 Typist/Jr.
Steno 20 625 EB 25 725.
800 EB 30 950.
Optr./Recep tionist/Assist.
Record Keeper/ Veh.
Mechanic/ Jr. Librarian.
IV Sr.
Clerk/Steno/ Rs. 450 20 530 EB Rs. 550 25 675 30 Record Keeper/ 30 860 EB 35 1000.
975 EB 40 1175.
Operator/ Xerox Operator V Office Asstt./ Rs. 590 30 740 EB Rs. 690 35 865 40 Lib.
Asstt./ 35 1020 EB 40 1300 1265 EB 45 1490.
Assist./ Administrative Assist./Personnel Asstt./Comm.
Asstt./ Canteen Asstt.
VI Draughtsman/Site Rs. 380 30 620 40 Rs. 530 40 730 50 Supervisor/ 1020 EB 50 1320.
1230 EB 60 1530.
Surveyor/(Diploma Holder).
VII Junior Architect Rs. 760 40 1000 50 Rs. 860 50 1160 (Engineering 1300.
60 1700.
Graduate) VIII Sr.
Draughtsman Rs. 1000 50 1300 Rs. 1100 60 1340 (Diploma Holder) 60 1600 75 1750.
70 1690 80 2010.
The Tribunal maintained the existing schemes of dearness allowance and house rent allowance, and observed that in view of the revised basic wages there would be a resultant increase in the dearness allowance and house rent allowance.
The revised wage scales, the Tribunal directed, should take effect retrospectively from 1st January, 1976.
It also laid down the principle enabling the actual fitment of the workmen in their respective wage scales as on that date and also provided for the number of increments to which they would be entitled having regard to the period of completed service.
173 Two days after the award was made, an application was made by the Union stating: "In the said award, your Honour has observed, at the end of para 22, "In view of the increase that is being allowed in the basic pay, I do not propose to revise the existing scheme of Dearness Allowance.
" Further, it appears that the Tribunal intended to grant the increase of Rs. 150/ to each draughtsman and Rs. 100/ to all other workmen in their basic pay.
However, this is not clearly mentioned anywhere in the award due to accidental slip or omission.
" The Union prayed that the position may be clarified and the award corrected accordingly.
On the same date, the Tribunal disposed of the application by the following order: "There can be no doubt that a flat increase of Rs. 150/ to each of the employees in the category of Draftsmen and of Rs. 100/ to each employee in the other categories has been granted under my award.
The same has been made clear in paragraph No. 23, but it appears that the words "to each employee" after the figure "Rs. 150/ " were omitted.
Similarly, the same words "to each employee" after the figure "100" were omitted.
When the award is sent for publication, a necessary corrigendum be made in the award and the aforesaid words after the figures Rs. 150/ and Rs. 100/ be added.
It may be mentioned that only from that point of view viz. to grant flat increase of Rs. 150/ and of Rs. 100/ to the employees in the category of Draftsmen and the other categories respectively that a burden statement was called for from the company and the same was submitted (vide exhibit C 51).
The fitment has also to be done only after the flat increase is added to the present basic salary of each employee.
I do not think that any problem would arise for interpretation of the award.
Since the award has been already signed, I do not think anything further can be added to this award.
sd/ K. N. Wani INDUSTRIAL TRIBUNAL.
" In this appeal, the learned counsel for the appellant had covered a wide field, but in the end he states that the appellant is aggrieved by two matters only.
One is the retrospectivity attached to the revised wage scales, and the other is the flat increase given to each 174 employee of Rs. 150/ in the category of Draughtsmen and Rs. 100/ in other categories resulting from the order dated 22nd December, 1978.
The workmen have filed an appeal by special leave, Civil Appeal No. 2300 of 1979, in which they have challenged the rejection by the Tribunal of their claim in respect of dearness allowance which, they contend, should be pegged to the cost of living index and should not be a fixed amount.
Considering the appeal of Tata Consulting Engineers first, the contention of learned counsel for the appellant is that having regard to the financial capacity of the appellant the Tribunal erred in making the wage scales retrospective and, in any event, in ranging the retrospectivity back to 1st January, 1976.
We have been taken through some of the material on the record in the attempt to support the contention, but after giving careful thought to the matter, I think there is ample justification for what the Tribunal did.
It must be remembered that although the wage scales were introduced as long ago as 1973 they were maintained at that level except for a slight revision some time thereafter.
No dearness allowance was paid until the beginning of 1977 and the house rent allowance also was introduced about that time.
The cost of living had gone on increasing from 1972 onwards and, as the Tribunal has found, the dearness allowance and house rent allowance made no appreciable impact in neutralising the increasing cost.
During all these years, the appellant had continued to enjoy increasing profits; nonetheless the emoluments received by the workmen did not receive the impress of the appellant 's growing prosperity.
The Charter of Demands was presented by the Union in July, 1974 and when conciliation proceedings failed the State Government made the reference to the Industrial Tribunal in 1975.
The Tribunal has referred to various considerations which prevailed with it in giving retrospectivity to the revised pay scales.
They are considerations which cannot be ignored.
Accordingly, the contention raised on behalf of the appellant against retrospectivity of the wage scales must be rejected.
The challenge embodied in the second contention against the amendment of the award is more serious.
It is urged that the amendment results in the inclusion of a flat increase of Rs. 150/ to each workman in the case of Draughtsman and Rs. 100/ to each workman in the case of other categories, a result wholly unwarranted, it is said, by the intent of the original award and, therefore, falling beyond the jurisdiction of the Tribunal.
In making the application of 22nd December, 1978, the Union invoked the jurisdiction of the 175 Tribunal under rule 31 of the Industrial Disputes (Bombay) Rules, 1957.
Rule 31 provides: "31.
The Labour Court, Tribunal or Arbitrator may correct any clerical mistake or error arising from an accidental slip or omission in any award it or he issues.
" The jurisdiction given to the Tribunal by rule 31 is closely circumscribed.
It is only a clerical mistake or error which can be corrected, and the clerical mistake or error must arise from an accidental slip or omission in the award.
An accidental slip or omission implies that something was intended and contrary to that intention what should not have been included has been included or what should have been included has been omitted.
It must be a mistake or error amenable to clerical correction only.
It must not be a mistake or error which calls for rectification by modification of the conscious adjudication on the issues involved.
Is the instant case one where the amendment made by the Tribunal in the original award can be said to correct a mere clerical mistake or error arising from an accidental slip or omission? To answer the question, it is necessary to examine the basis of the award and the intent which flows from that basis.
The terms of reference in the State Government 's order required the Tribunal to revise the scales of pay and dearness allowance, and there was no mention of giving any ad hoc increase in the basic pay of individual workman.
It would do well to recall that the claim of the Union filed before the Tribunal also centered on the need to revise the wage scales.
That was the main issue between the parties.
It is to the task of revising the pay scales that the Tribunal addressed itself, and throughout the material part of the award it is that task which held its focussed attention.
The financial capacity of the appellant, and the related study of its annual profits from 1968 to 1977, were examined from that view point.
The sufficiency of the existing pay scales was considered in detail, and regard was had to their original structure and the accretions made subsequently by way of dearness allowance and house rent allowance.
For the purpose of restructuring the pay scales the Tribunal ruled on the paying capacity of the appellant, both with reference to the profits of the preceding year as well as the prospects of the future.
The financial capacity, as the Tribunal observed, constituted one of "the principles which are required to be followed in the fixation of the wage structure." A clear statement of its intention is found in paragraph 22 of the award, where the Tribunal stated: "I only propose to modify the existing structures of the scales with flat increases in each category." 176 No ad hoc increase to the pay of each individual workman was intended.
And that is confirmed by what was stated in paragraph 23 of the award: "Considering this outgoing the flat increase of Rs. 150/ in the category of Draughtsman and Rs. 100/ in the case of the other categories would be fair.
" It will be noted that the pay scales of different categories were being restructured, and the flat increase envisaged there related to an increase in the general pay scales of different categories.
Individual workmen were not present to the mind of the Tribunal.
That the increase was pertinent to the general pay scales in the revised wage structure is patently clear from a comparison of the existing pay scales and the revised pay scales.
The comparative table of existing pay scales and the revised pay scales has been reproduced earlier.
The revised pay scales of all categories, except the category of Draughtsmen, shows an increase of Rs. 100/ in the initial pay fixed in each scale, the increase in the case of the category of Draughtsmen being Rs. 150/ .
There was only one increase contemplated in the award, in paragraph 23 of award, and it is more than plain that the increase was the one incorporated in the revised pay scales pertaining to different categories.
No second flat increase was envisaged at all.
The amendment made by the Tribunal has the effect of providing a second increase, this time to each individual workmen.
If, as the Tribunal has stated in the amendment order, the increase in paragraph 23 was intended to apply to each individual workmen, there is nothing in the body of the award to form the foundation on which the actual figures in the restructured pay scales can be made to rest.
There will be no explanation why the initial start of the revised pay scales has been increased by Rs. 150/ in the case of the category of Draughtsmen and Rs. 100/ in the case of other categories.
Considering the fitment of the workman in the revised scales, it was stated in the award that a workman found drawing a salary less than the beginning of the grade would be stepped up to the beginning of the grade and if his pay fell between two steps in the reclassified pay scales the basic pay was to be fixed at the step higher in the revised scale.
Conspicuous by its absence is any reference to a flat increase in the pay of an individual workmen.
Even when considering the range of permissible retrospectivity the Tribunal stated in the award: "In view of the revision of the wage scales, there would be consequent increase in the dearness allowance and the house rent allowance.
" 177 And the clinching circumstances of all is that the award was made on the basis that the overall financial load according to paragraph 33 of the award would be to the tune of about Rs. 5 lakhs.
It was that figure which the Tribunal had in mind against the backdrop of the gross annual figures when it made the revised pay scales retrospective from 1st January, 1976.
This liability taken with the liability accruing on the need to increase the salaries of the other staff determined the Tribunal 's deliberations in regard to the several features of the award, including the grant of increments related to completed periods of service, the expansion of the span from 15 years to 20 years for earning increments, and other benefits.
It cannot be the case of the Union that the figure of Rs. 5 lakhs mentioned in paragraph 33 of the award represented the result of adding a flat increase to the pay of each workman in addition to the benefits conferred by the revised pay scales and other awarded reliefs.
In its order of 22nd December, 1978, the Tribunal has referred to the statement (Exhibit C 51) filed by the appellant when called upon to indicate the increased financial burden apprehended by it.
The Tribunal has relied on this statement as evidence showing that the appellant knew that a flat increase of Rs. 150/ and Rs. 100/ was intended to each of the employees in the category of Draughtsmen and the other categories.
In so construing the statement, Exhibit C 51, the Tribunal has grievously erred.
It seems from a perusal of the document, Exhibit C 51, that it is a statement giving trial figures of the increased financial load on different bases.
On the basis that a sum of Rs. 150/ per month was added to the pay of each Draughtsman and a sum of Rs. 100/ was added to the pay of every other workman, who belonged to the Union staff, the financial load would increase to Rs. 9,22,032/ .
Likewise, if a flat increase of Rs. 100/ was given to individual workmen of all categories, including Draughtsmen, the increased financial load would total Rs. 7,64,256/ .
The statement then goes on to indicate that if a flat increase of Rs. 75/ per month were given to individual workmen of all categories the total increase would be Rs. 5,78,220/ .
Again, if the flat increase is Rs. 65/ per month to the individual workmen of all categories, the additional load would total Rs. 4,97,772/ .
Finally, on the basis that the individual Draughtsman would be given an increase of Rs. 75/ per month and the individual workmen of other categories Rs. 50/ per month, the additional load was calculated at Rs. 4,63,092/ .
It will be noted that the statement, Exhibit C 51, was prepared on the basis of the employees ' strength as in December, 1971.
A similar statement was prepared on the basis of the employees ' strength as in September, 1978.
These statements cannot be regarded as evidence 178 that the appellant was cognizant of the intention of the Tribunal to provide a flat increase to the pay of each workman.
The statement afforded an indication merely of what the additional financial load would be if a flat increase was given to the individual workman on the alternative basis set forth therein.
None of the alternatives was actually adopted by the Tribunal, because when the award was made the Tribunal proceeded instead to restructure the wage scales by the addition of Rs. 150/ in the case of the category of Draughtsmen and Rs. 100/ in the case of other categories to the initial pay in the wage scales pertaining to those categories.
The addition was integrated as a feature of the wage scales; it was not regarded as an addition to the pay of each individual workman.
It seems that the Tribunal was betrayed by a curious confusion in accepting the plea of the Union that a flat increase to the pay of each workman was intended in the original wage and, consequently, it fell into the error of amending the award.
The evidence contained in the award throughout provides incontrovertible proof that this flat increase was never originally intended in the award.
The amendment has resulted in the Tribunal making, as it were, a supplementary award, whereby a further relief is being granted beyond that granted in the original award.
The original award was completed and signed by the Tribunal, and it cannot be reopened now except for the limited purpose of Rule 31.
In travelling outside and beyond the terms of the original award, the Tribunal has committed a jurisdictional error.
Our attention has been drawn to what purports to be an endorsement by counsel for the appellant on the application dated 22nd December, 1978 filed by the Union before the Tribunal to the effect that the appellant would submit to whatever the Tribunal decided, and it is urged that the appellant is bound by the order made on the application.
It is an accepted principle that consent by a party cannot confer jurisdiction on a court.
What is without jurisdiction will remain so.
In the circumstances the order of 22nd December, 1978 is invalid so far as it amends paragraph 23 of the original award.
The corrigendum amending the award in consequence is liable to be quashed.
The second contention of the appellant is entitled to succeed.
I shall now consider Civil Appeal No. 2300 of 1979 filed by the workmen.
The only contention of the workmen is that the Tribunal should have fixed the dearness allowance in communion with the cost of living index.
It is wrong in principle, it is said, to provide a fixed dearness allowance.
Reliance was placed on The Hindustan Times Ltd., New Delhi vs Their Workmen where it was observed by this Court that dearness allowance should not 179 remain fixed at any figure but should be on a sliding scale in order to neutralise a portion of the increase in the cost of living.
Reference was also made to Bengal Chemical & Pharmaceutical Works Limited vs Its Workmen.
Now, it is not a universal rule that the dearness allowance should in all cases be correlated with the cost of living index.
The Tribunal, in the present case, considered the matter and found it sufficient and in accord with justice that the wage scales should be restructured with suitable increments provided therein.
It noted that dearness allowance was being granted by the appellant at 10% of the salary subject to a minimum of Rs. 50/ and house rent allowance at 30% of the basic salary.
Having regard to the not inconsiderable improvement in the level of the basic wage, it observed that there would be a consequent increase in the dearness allowance and house rent allowance.
In view of the increase so secured, the Tribunal rejected the suggestion that a slab system should be introduced in the dearness allowance or that there should be any other modification of the principle on which dearness allowance was being presently granted.
It declared that the cumulative effect of an improved wage structure together with dearness allowance operating on a slab system would throw an impossible burden of about Rs. 1 crore on the financial capacity of the appellant.
It was open to the Tribunal to adopt the position which it did.
If the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been made will have to be reconsidered.
The award is a composite document in which the several elements of increased wage scales, larger increments, longer span of 20 years for earning increments, dearness allowance at 10% of the basic wage, besides several other benefits, have been integrated into a balanced arrangement in keeping with what the Tribunal has found to be the financial capacity of the appellant.
It is not possible to maintain one part of the award and supersede another.
Accordingly, the appeal filed by the workmen must fail.
In the result, Civil Appeal No. 2299 of 1979 is allowed in part insofar that the order dated 22nd December, 1978 of the Industrial Tribunal, Maharashtra Bombay is quashed to the extent that it modifies the original award dated 20th December, 1978, and the corrigendum made consequent thereto is also quashed.
Civil Appeal No. 2300 of 1979 is dismissed.
There is no order as to costs.
CHINNAPPA REDDY, J. We have had the advantage of perusing the judgment prepared by our learned brother Pathak, J. we agree with 180 him that Civil Appeal No. 2300 of 1979 should be dismissed.
We also agree with him that Civil Appeal No. 2299 of 1979 should also be dismissed in so far as it relates to the award dated December 20, 1978.
However, we do not agree with our learned brother that Civil Appeal No. 2299 of 1979 should be allowed in so far as it relates to the order dated December 22, 1978 of the Industrial Tribunal which purports to correct the award dated December 20, 1978.
In our opinion Civil Appeal No. 2299 of 1979 should be dismissed in its entirety.
We do not propose to give our reasons to the extent we are in agreement with Pathak, J. and we propose to state our reasons for the disagreement only.
It is needless to recapitulate all the basic facts which have been set out in the judgment of Pathak, J. The Award of the Industrial Tribunal was made on December 20, 1978.
On December 22, 1978 that is to say, two days after the Award was made and when everything must have been fresh to the minds of the Tribunal, the respective parties and their Advocates, the employees Union made an application under Rule 31 of the Industrial Disputes (Bombay) Rules, 1957 seeking a correction of an error, which it was claimed, had crept into the Award.
The application was as follows: "In the above reference your honour was pleased to pass an award on 20th December, 1978.
In the said award, Your Honour has observed, at the end of Para 22, 'In view of the increase that is being allowed in the basic pay, I do not propose to revise the existing scheme of Dearness Allowance '.
Further, it appears that the Tribunal intended to grant the increase of Rs. 150/ to each draughtsman and Rs. 100/ to all other workmen in their basic pay.
However, this is not clearly mentioned anywhere in the award due to accidental slip or omission.
The Union therefore prays the honourable Tribunal to clarify the position and correct the award accordingly".
On this application, the Advocate for the employer company made the following endorsement: "Submitted to whatever this Hon 'ble Tribunal desires to do".
Thereafter the Tribunal made an order on the same day in the following terms: "There can be no doubt that a flat increase of Rs. 150/ to each of the employees in the category of Draftsmen and 181 of Rs. 100/ to each employee in the other categories has been granted under my award.
The same has been made clear in paragraph No. 23, but it appears that the words "to each employee" after the figure "Rs. 150/ " were omitted.
Similarly, the same words "to each employee" after the figure "100" were omitted.
When the award is sent for publication, a necessary corrigendum be made in the award and the aforesaid words after the figures Rs. 150/ and Rs. 100/ be added.
It may be mentioned that only from that point of view viz. to grant flat increase of Rs. 150/ and of Rs. 100/ to the employees in the category of Draftsmen and the other categories respectively that a burden statement was called for from the company and the same was submitted (vide exhibit C 51).
The fitment has also to be done only after the flat increase is added to the present basic salary of each employee.
I do not think that any problem would arise for interpretation of the award.
Since the award has been already signed, I do not think anything further can be added to this award".
This order was made in the presence of Shri Manak Gagrat, Advocate for the Company and Shri N. P. Mehta, Advocate for the workmen.
The endorsement made on the application by the Advocate for the company does not indicate that the company had any objection to the award being corrected as sought by the employees union.
On the other hand the endorsement reads as if there was tacit agreement on the part of the Company to the correction sought by the union.
The order dated December 22, 1978 of the Tribunal also does not reveal that there was any opposition by the company to the application for correcting the award.
Even so we propose to examine whether the correction sought by the employees union was within the bounds of the authority of the Tribunal or whether it was in effect a fresh award.
The primary and basic question considered by the Industrial Tribunal, in making the award dated December 20, 1978 was the question of revision of the wage scales.
Implicit and intrinsically connected with the question of revision of the wage scales were the questions of fitment of employees into the wage scales and flat or ad hoc increase of salaries of workmen wherever considered necessary.
It cannot possibly be doubted that an Industrial Tribunal deciding upon the wage scales of the employees of an establishment would have full liberty to propose ad hoc increase of salaries as part of the revision of wages.
Nor can it be doubted that fitment into the revised pay scales is certainly a part of the revision of pay scales.
This in our opinion is 182 elementary and fundamental to the jurisdiction of the Industrial Tribunal in revising wage scales.
In the present case the Industrial Tribunal on a consideration of the material placed before it came to the conclusion that the company was in an undoubted position to bear the additional financial burden.
At the end of paragraph 15 of the Award, the Tribunal stated: "But there can be no doubt that the company can very well bear the additional burden.
The question is what should be the extent of such burden?" At the end of paragraph 18 of the award the Tribunal said: A" mere reading of Exhibit U 15 will immediately dispel the misgivings about the future of the present company.
For some years to come this is likely to be one of the few Consulting Engineers who will be securing major contracts".
Again in Paragraph 19 it was said: "I have no doubt that the present Company would be able to bear the additional burden for the years to come.
This is further borne out from the trading results of the Company for the year 1968 69 to 1977.
The profits have increased all along.
The copy of the letter dated July 23, 1973, alongwith the Annexures from the Company to the Director General, Posts & Telegraphs, Delhi (exhibit C 27) indicates the important projects the Company was handling in India and abroad, and the amount of foreign exchange earned and repatriated.
I will; therefore, proceed on the ground that the present Company can bear the additional financial burden".
Finally at the end of paragraph 21 the Tribunal said : In view of this position, the Company can easily bear some burden that might fall as a result of the upward revision of the wage scales.
The question is to what extent the relief should be given to the employees ?" After expressing himself in categoric terms about the capacity of the company to bear the additional financial burden, the Tribunal went on to say: "I only propose to modify the existing structure of the scales with flat increases in each category".
The Tribunal then considered the question whether Draftsmen should get a higher flat increase and the question whether the existing scheme of Dearness Allowance should be revised.
The Tribunal then observed: ". the flat increase of Rs. 150/ in the category of Draftsmen and Rs. 100/ in the case of the other categories would be fair".
Thereafter various other matters were considered and finally the Tribunal revised the wage scales in the manner already mentioned by my brother Pathak, J.
The question of "Fitment" was then considered in the following manner: 183 "34.
Fitment: If as on 1st January, 1976, an employee is drawing a salary less than the beginning of the respective grade, he should be first stepped up to the beginning of the grade.
If the pay of an employee does not coincide with any step in the revised pay scale, and falls between two steps in the reclassified pay scales, the basic pay of that employee shall be fixed at the step higher in the revised scale.
After fixing the salary of the employees in the scales as above, the employees should be given increments in the new scales as noted below: (i) Employees who have completed 5 years or more as on 1st January, 1976, 3 increments.
(ii) Employees who have completed 4 years of service as on 1st January, 1976, 2 increments.
(iii) All other employees with more than one year 's service shall be given one increment".
Now, if, without any flat or ad hoc increase of salary, the workmen were to be fitted into the revised scales of pay, it would obviously result in serious anomalous situations.
In the case of several senior employees, the revised scale would yield but a very small and almost a token increase in the size of the pay packet whereas the junior employees would get a large benefit.
While workmen raising industrial disputes for revision of wage scales are certainly minded about their future prospects in the matter of wages, they, surely would be more concerned with the immediate benefits according to them That was why the Industrial Tribunal thought that an all round flat increase of Rs. 150/ in the case of Draftsmen and Rs. 100/ in the case of other workmen was called for.
It was clearly so intended by the Tribunal as is evident from the reference to "flat increase of Rs. 150/ in the category of Draftsmen and Rs. 100/ in the case of the other categories".
Since there was to be a flat increase of Rs. 150/ and Rs. 100/ in the case of draftsmen and other workmen respectively, the revised wage scale had necessarily to commence with figures Rs. 150/ and Rs. 100/ above the existing wage scales.
Immediately after the award was pronounced, while the iron was still hot as it were, the employees apparently realised that the employer might take advantage of the circumstance that it was not clearly mentioned in the award that all the employees were to get additional pay of Rs. 150/ and Rs. 100/ respectively and might contend that the Tribunal had only revised the wage scales by increasing the salary on entry into the service and res 184 tructuring the scale of pay and never granted any ad hoc increase of salary to all employees.
Therefore, they filed an application before the Tribunal for correcting the award so as to bring out what was intended.
As it has now turned out what the employees apparently suspected the employer might contend, is precisely what the employer is not contending, though the employer did not choose to so contend before the Industrial Tribunal itself when the employees filed the application for rectification.
The application before the Tribunal was filed under Rule 31 of the Bombay Industrial Disputes Rules 1957, which is as follows: "A Board, Court, Labour Court, Tribunal or Arbitrator may, at any time, suo moto or on an application made by any of the parties concerned, may correct any clerical mistake or error arising from an accidental slip or omission in any proceedings, report, award or as the case may be, decision".
The omission of the words to each employee first after the figure Rs. 150/ and again after the figure Rs. 100/ was clearly an accidental slip or omission which the Tribunal was entitled to correct.
We are unable to see how it can be held to be otherwise.
We are not impressed with the submission of the learned counsel for the Company that the corrigendum was in effect a fresh award.
We, therefore, see no ground for quashing the order dated December 22, 1978 of the Tribunal.
The result of the foregoing discussion is that Civil Appeal No. 2299 of 1979 has to be dismissed in its entirety.
We have already indicated that we agree with our brother Pathak, J., that the appeal (Civil Appeal No. 2300 of 1979) filed by the workmen should also be dismissed.
While we find lot of force in the submission of Shri V. M. Tarkunde, learned counsel for the workmen that Dearness Allowance linked to cost of living index is ordinarily the best and the most scientific method of computing dearness allowance, it cannot always be said that an illegality warranting interference under Article 136 is committed if some other method is adopted.
The Tribunal has given satisfactory reason for adopting a different mode and we are not disposed to interfere with the award of the Tribunal.
In the result both the appeals are dismissed without any order as to costs.
ORDER In view of the opinion of the majority both the appeals are dismissed and there is no order as to costs.
S.R. Appeals dismissed.

dataset_name: IN-Abs

summary:
Dismissing the appeals by special leave, the Court. ^ HELD: Per Pathak, J. (Krishna Iyer and Chinnappa Reddy, JJ.
concurring) (1) Having regard to the financial capacity of M/s. Tata Consulting Engineers, the appellant, and the material on the record and the various other considerations which prevailed with the Tribunal, the granting of revised wage scales is in order.
Although the wage scales were introduced as long ago as 1973 they were maintained at that level except for a slight revision some time thereafter.
No dearness allowance was paid until the beginning of 1977 and the house rent allowance also was introduced about that time.
The cost of living had gone on increasing from 1972 onwards and the dearness allowance and house rent allowances made no appreciable impact in neutralising the increasing cost.
During all these years, the appellant had continued to enjoy increasing profits; nonetheless the emoluments received by the workmen did not receive the impress of the appellant 's growing prosperity.
The Charter of Demands was presented by the Union in July, 1974 and when conciliation proceedings failed the State Government made a reference to the Industrial Tribunal in 1975.
The several considerations which prevailed with the Tribunal giving retrospectivity to the revised pay scales and referred to by it cannot be ignored.
[174C G] (2) It is not a universal rule that the dearness allowance should in all cases be correlated with the cost of living index.
The Tribunal, in the present case, considered the matter and found it sufficient and in accord with justice that the wage scales should be restructured with suitable increments provided therein.
It noted that dearness allowance was being granted by the appellant at 10% of the salary subject to a minimum of Rs. 50/ and house rent allowance at 30% of the basic salary.
Having regard to the not inconsiderable improvement in the level of the basic wage, it observed that there would be a consequent increase in the dearness allowance and house rent allowance.
In view of the increase so secured, the Tribunal rejected the suggestion that a slab system should be introduced in the dearness allowance or that there should be any other modification of the principle on which dearness allowance was being presently granted.
It declared that the cumulative effect of an im 167 proved wage structure together with dearness allowance operating on a slab system would throw an impossible burden of about Rs. 1 crore on the financial capacity of the appellant.
It was open to the Tribunal to adopt the position which it did.
If the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been made will have to be reconsidered.
The award is a composite document in which the several elements of increased wage scales, larger increments longer span of 20 years for earning increments, dearness allowance at 10% of the basic wage, besides several other benefits, have been integrated into a balanced arrangement in keeping with what the Tribunal has found to be the financial capacity of the appellant.
It is not possible to maintain one part of the award and supersede another.
[179 E F] The Hindustan Times Ltd, New Delhi vs Their Workmen, [1964] 1 SCR 234, 247 and Bengal Chemical & Pharmaceutical Works Limited vs its Workmen; , , distinguished.
(3) The jurisdiction given to the Tribunal by rule 31 of the Industrial Disputes (Bombay) Rules, 1957, is closely circumscribed.
It is only a clerical mistake or error which can be corrected and the clerical mistake or error must arise from an accidental slip or omission in the award.
An accidental slip or omission implies that something was intended and contrary to that intention what should not have been included has been included or what should have been included has been omitted.
It must be a mistake or error amenable to clerical correction only.
It must not be a mistake or error which calls for rectification by modification of the conscious adjudication on the issues involved.
[175 A C] Per contra The order of 22nd December, 1978 is invalid so far as it amends paragraph 23 of the original award.
The amendment has resulted in the Tribunal making, as it were, a supplementary award, whereby a further relief is being granted beyond that granted in the original award.
The original award was completed and signed by the Tribunal, and it cannot be reopened now except for the limited purpose of Rule 31.
In travelling outside and beyond the terms of the original award, the Tribunal has committed a jurisdictional error.
The evidence contained in the award throughout provides incontrovertible proof that this flat increase (ad hoc) was never originally intended in the award.
There was only one increase contemplated in the award, in paragraph 23 of the award and it is more than plain that the increase was the one incorporated in the revised pay scales pertaining to different categories.
No second flat increase was envisaged at all.
The amendment made by the Tribunal has the effect of providing a second increase, this time to each individual workmen.
If, as the Tribunal has stated in the amendment order.
the increase in paragraph 23 was intended to apply to each individual workmen, there is nothing in the body of the award to form the foundation on which the actual figures in the restructured pay scales can be made to rest.
There will be no explanation why the initial start of the revised pay scales has been increased by Rs. 150/ in the case of the category of Draughtsmen and Rs. 100/ in the case of other categories.
Considering the fitment of the workmen in the revised scales, it was stated in the award that workman found drawing a salary less than the beginning of the grade would be stepped up to the beginning of the grade and if his pay fell between two steps in the reclassified pay scales the 168 basic pay was to be fixed at the step higher in the revised scale.
Further the award was made on the basis that the overall financial load according to paragraph 33 of the award would be to the tune of about Rs. 5 lakhs.
It was that figure which the Tribunal had in mind against the backdrop of the gross annual figures when it made the revised pay scales retrospective from 1st January, 1976.
[176 D G, 177A, 178 D F] The statement, Exhibit C 51 afforded an indication merely of what the additional financial load would be if a flat increase was given to the individual workmen on the alternative basis set forth therein.
None of the alternatives actually adopted by the Tribunal, because when the award was made the Tribunal proceeded instead to restructure the wage scales by the addition of Rs. 150/ in the case of the category of Draughtsmen and of Rs. 100/ in the case of other categories to the initial pay in the wage scales pertaining to these categories.
The addition was integrated as a feature of the wage scales, it was not regarded as an addition to the pay of each individual workmen.
[178A C] It is an accepted principle that consent by a party cannot confer jurisdiction on a court.
What is without jurisdiction will remain so.
[178 E F] Per O. C. Reddy, J. (Majority view, Iyer and Reddy, JJ.) The order dated December 22, 1978 of the Industrial Tribunal which purports to correct the award dated December 20, 1978 cannot be considered in effect to be a fresh award and it is in order.
The omission of the words "to each employee" after the figure Rs. 150/ and again after the figure Rs. 100/ was clearly an accidental slip or omission which the Tribunal was entitled to correct.
The application for the correction was made immediately, that is to say, two days after the Award, while iron was still hot or when everything must have been fresh to the minds of the Tribunal.
Even the endorsement made on the application by the Advocate for the Company to the effect "submitted to whatever this honourable Tribunal desires to do, does not indicate that the Company had any objection to the award being corrected as sought by the employees union.
On the other hand the endorsement reads as if there was tacit agreement on the part of the Company to the correction sought by the union; it cannot possibly be doubted that an Industrial Tribunal deciding upon the wage scales of the employees of an establishment would have full liberty to propose ad hoc increase of salaries as part of the revision of pay scales, not can it be doubted that fitment into the revised pay scales is certainly a part of the revision of pay scales.
This is elementary and fundamental to the jurisdiction of the Industrial Tribunal in revising wage scales.
If without any flat or ad hoc increase of salary the workmen were to be fitted into revised scales of pay, it would, obviously, result in serious anomalous situations.
In the case of several senior employees, the revised scale would yield but a very small and almost a token increase in the size of the pay packet whereas the junior employees would get a large benefit.
While workmen raising industrial disputes for revision of wage scales are certainly minded about their future prospects in the matter of wages, they, surely would be more concerned with the immediate benefit accruing to them.
That was why the Industrial Tribunal thought that all round flat increase of Rs. 150/ in the case of Draughtsmen and Rs. 100/ in the case of other workmen to each employee was called for.
[180C, 181D E, G H, 182A, 183D E, G H, 184A B] 169 (4) While it is true that Dearness Allowance linked to cost of living index is ordinarily the best and the most scientific method of computing dearness allowance, it cannot always be said that an illegality warranting interference under Article 136 is committed if some other method is adopted.
In the instant case, the Tribunal has given satisfactory reasons for adopting a different mode.
[184 F G]


judgement:
ivil Appeal No. 196 of 1 970.
From the judgment and decree dated April 21, 1969 of the Allahabad High Court in First Appeal No. 80 of 1964.
S.T. Desai, A.T.M. Sampath, Mukul Mudgal and Raju Ramachandran for the Appellants.
R.K. Garg, Mrs. Urmila Sirur and Shiv Pujan Singh, for the Respondents.
(b) of clause (I) of Article 133 of the Constitution granted by the Allahabad High Court against its judgment and decree dated April 21, 1969 disposing of appeals out of a suit for declaration and possession.
The plaintiffs filed a suit claiming that the property in dispute belonged to the Math Sauna or the deity Sri Thakur Gokarneshwar 661 Mahadeo Ji installed in the Math Sauna temple, and that Mahant Sadashiva Yati was in possession as Mahant and Sarbarakar.
It was claimed that in the event of Mahant Sadashiva Yati being found out of possession a decree for possession should be made.
Sadashiva Yati pleaded that on the death of Mahant Shivshanker Yati he was elected Mahant of Math Sauna and was, therefore, entitled as Sarbarakar to all the properties recorded in the deity Mahadeo Ji or in the name of Mahant Shivshanker Yati.
These properties included properties in village Amauli.
He asserted that Shivshanker Yati possessed no personal property.
The suit was contested by the first defendant, Kedar Nath Chaubey, also referred to as Uma Shanker Yati.
He alleged that Mahant Shivshanker Yati owned personal properties which included the properties in village Amauli, that he was the chela of Mahant Shivshanker Yati and the Amauli properties had passed to him under a will executed by the Mahant.
We are concerned in this appeal solely with the Amauli properties.
Math Sauna is an old Math situated in the village of that name in Tehsil Saidpur in the district of Ghazipur.
One of the earliest Mahants of the Math Mahant Gokaran Yati, raised a temple in the premises of the Math and installed a deity acclaimed by the name of "Gokarneshwar Mahadeo".
On his death he was succeeded by Mahant Shivbaran Yati, who executed a waqf deed on November 12, 1892 dedicating various properties to the deity with the intent that arrangements for bhog, deepdan and other expenses be met from them.
The surplus, the deed directed was to be employed for acquiring further property in the name of the deity and was not to be applied by the Sarbarakar to his personal use.
The learned Civil Judge decreed the suit but included a finding in his judgment that Sadashiv Yati was not a regularly constituted Mahant of Math Sauna and Sarbarakar of the deity.
Two appeals were filed in the High Court.
First Appeal No. 80 of 1964 was filed by Kedar Nath Chaubey @ Uma Shanker Yati against the declaration that the Amauli properties were owned by Math Sauna or the deity and that Sadashiv Yati was in possession thereof as Mahant and Sarbarakar.
The other appeal, First Appeal No. 270 of 1965 was filed by the plaintiffs for the relief that Sadashiv Yati was a properly constituted Mahant of Math Sauna and Sarbarakar of the deity.
The High Court allowed both the appeals by its judgment and decree dated April 21, 1969.
It held that the Amauli properties had been purchased by Shivshanker Yati in 1921 from 662 the personal and separate funds inherited by him from his predecessor Shivpher Yati, and that the Amauli properties must, therefore, be regarded as his personal and separate properties and they did not belong to the Math or the deity.
The present appeal is directed against that part of the judgment and decree of the High Court.
It is admitted between the parties that the Amauli properties were purchased by Mahant Shivshankar Yati for Rs. 40,000 forming part of a fund left behind by his predecessor Mahant Shivpher Yati.
The point for decision is whether the fund was the personal property of Mahant Shivpher Yati, and if so, whether it devolved on Mahant Shivshankar Yati.
The Mahants and members of Math Sauna belonged to the Dashnami Sanyasi sect.
The material on the record establishes that they could own and possess personal property.
They included sanyasis who had formerly been married men and householders, men who had passed through the grihastha ashram.
Some of them continued to possess and even to acquire personal property after taking sanyas.
It was observed in Sushil Chandra Sen vs Gobind Chandra Das(l) that Dashnami sanyasis mixed freely in the business world and carried on trade and often accumulated property.
This Court in Gurcharan Prasad vs Krishnanand (2) affirmed that Nihang Dashnami Sanyasis could pursue money lending business and could own property as absolute owners, and enjoy them as their personal property.
That certain sects of sanyasis could acquire personal property was accepted by that eminent Judge, Dr. B.K. Mukherjee, in his "Hindu Law of Religious and Charitable Trusts",(a) where he says: "A Mohunt, and for the matter of that, any other Sanyasi can acquire personal property of his own.
The Pronamis given to a Mohunt are generally his personal property.
The mere fact that a Mohunt is an ascetic does not raise any presumption that a property in his possession is not his personal property.
Strictly speaking, there is no presumption either one way or the other, and in each case the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to the possession of which he is entitled in the right in which he sues".
663 There is reason to believe that Mohant Shivbaran Yati, Mohant Shivpher Yati and Mahant Shivshankar Yati were not celibates and had been grihasthas, and were entitled to possess, enjoy and acquire personal property.
The evidence discloses that Mahant Shivpher Yati was held in high regard on account of his personal learning and attainments, and has a large number of chelas including many affluent persons from whom he received personal bhents or pranamis of large amounts of money.
His personal property, on his death, included cash, sovereigns and gold besides two fixed deposits with the Bank of Bengal of Rs. 45,000.
He had also inherited the personal property of Mahant Shivbaran Yati, who owned three private properties in village Shiv Dass in the district of Banaras.
On his death in 1917, all those properties and wealth devolved on Mahant Shivshankar Yati.
He was granted a succession certificate by the District Judge, Ghazipur in respect of the two fixed deposits made by Mahant Shivpher Yati in the Bank of Bengal.
Mahant Shivshankar Yati employed the inherited money in the purchase of two properties in village Amauli in 1921 paying Rs 30,000 for a full interest in one property and Rs. 10,000 for a moiety share in the other.
In respect of both properties, the revenue records mentioned the name of Mahant Shivshankar Yati and not that of the Math or the deity.
Small parcels of these properties were transferred by Mahant Shivshankar Yati from time to time, and none of those transfers was challenged by the plaintiffs in the present suit.
It is urged for the appellants that where a nucleus of dedicated property exists, the acquisition of additional property should be attributed to the application of the nucleus and must, therefore, be regarded as property belonging to the Math or the deity.
As has been observed, there can be no presumption either way.
All the facts and circumstances must be taken into consideration and on a balancing of the entire evidence it has to be determined whether the property can be said to belong to the Math or deity or is the personal property of the Mahant, the burden of proof resting on the party who makes the claim.
In the present case, it is difficult to conclude from the material before us that the total income from the properties belonging to the Math and the deity left any appreciable surplus after meeting the expenditure on account of bhog, arpan, deepdan, daily and annual puja and the other obligations specified in the waqf deed.
We are in agreement with the High Court that the fund from which the Amauli properties were acquired constituted the personal property of Mahant Shivpher Yati.
On his 664 death in 1917, the fund passed to Mahant Shivshankar Yati, who in 1921 employed it for the purchase of the Amauli properties.
Mahant Shivshankar Yati executed a will in 1956, and it appears beyond dispute that by virtue of this will the Amauli properties devolved on Uma Shankar Yati.
It is pointed out before us that in assessment proceedings under the U. P. Agriculture Income Tax Act 1948, the Amauli properties were described by Mahant Shivshankar Yati as properties of the Math and therefore a claim to exemption from the levy was made.
The High Court has found that the claim was not accepted by the assessing authority, and that the position in regard to those properties taken in the assessment proceedings was adopted by the Mahant only for the purpose of escaping personal liability to tax.
We concur with that finding.
In our judgment, the High Court is right in the view that the Amauli properties constitute the personal property of Uma Shankar Yati and do not form part of the properties of the Math Sauna or of the deity, Sri Thakur, Gokarneshwar Mahadeoji.
In the result, the appeal is dismissed with costs.
P.B.R. Appeal dismissed.

summary:
The plaintiffs in their suit claimed that the properties in dispute belonged to the Math Sauna temple and that one of the plaintiffs Mahant Sadashiva Yati on the death of his predecessor was elected as Mahant of the temple and that therefore as Sarbarakar he was entitled to all the properties recorded in the name of the deity or his predecessor.
The defendant claimed that by virtue of a will executed by Mahant Shivshankar Yati, the predecessor Mahant, the properties in dispute which were his personal properties devolved on him.
The Civil Judge decreed the plaintiffs ' suit with a finding that Mahant Sadashiv Yati was not the Sarbarakar.
Upholding the respondent 's claim, the High Court in appeal, held that the properties did not belong either to the Math or the deity but were the personal and separate properties of Mahant Shivshankar Yati.
In appeal to this Court the appellants impugned the correctness of the High Court 's view.
Dismissing the appeal, ^ HELD: The properties in dispute did not form part of the properties of Math Sauna or of the deity but were the personal properties of the respondent.
[664 D E] It is well accepted that certain sects of Sanyasis (such as Dashnami Sanyasis in this case) could acquire personal property of their own and that the pronamis given to a Mahant are generally his personal property.
The mere fact that a Mahant is an ascetic does not raise any presumption that the property in his possession is not his personal property.
There is no presumption either way.
In each case the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to which he is entitled.
[662 F G] 660 In the instant case the three earlier Mahants before they took to sanyasa had been grahasthas.
They were entitled to possess, enjoy and acquire personal property.
Mahant Shivpher Yati, one of the predecessor Mahants, whose reputation as a man of learning and personal attainments was high, received personal bhents from many of his affluent chelas.
In addition, on the death of his predecessor Mahant Shivbaran Yati.
Mahant Shivpher Yati inherited his personal property, all of which devolved on Shivshankar Yati.
A succession certificate in respect of these properties was granted in the name of Shivshankar Yati.
The revenue records also showed him as the owner of the properties and not the Math or the deity.
None of the transfers of small parcels of these properties made by Mahant Shivshankar Yati from time to time was challenged by the plaintiffs at any time.
[663 A l] Whether a property was acquired by the application of the nucleus could only be determined after taking into consideration all the facts and circumstances of a case and on a balancing of the entire evidence.
The burden of proof rests on the party making the claim.
[663 F G] In the present case there is no material on record to how whether the total income from the properties belonging to the Math and the deity, left any appreciable surplus after meeting the expenditure on bhog and other ceremonies.
The High Court rightly held that the fund from which the properties were acquired constituted the personal property of Mahant Shivpher Yati on whose death Shivshankar Yati employed it for the purchase of the properties and by virtue of his will the properties devolved on the respondent.
[663 H]