judgement:
minal Appeal No. 667 of 1980.
From the Judgment and Order dated 31.7.1980 of the Allahabad High Court in Crl.
Appln.
No. 5296 of 1979.
M.V. Goswami for the Appellants.
Vishnu Mathur, A.S. Pundir and R.C. Verma for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
The admitted facts in the present case are as follows.
The suit property consists of house No. 336 of village Khonda, District Mathura.
The dispute with regard to the possession of the property arose between the appellants and the respondent Ramshri.
She filed an application under Section 145 of Criminal Procedure Code [Code] before the Sub Divisional Magistrate, Sadabad in which she claimed ownership of the suit property.
On 31st May, 1976, the learned Magistrate passed a preliminary order under Section 145 of the Code and thereafter on 22nd April, 1977 made an order of attachment under Section 146 directing that the attachment would continue till the competent civil court determined the rights of the parties with regard to the said property.
Against this order, a Revision being Cr.
Revision No. 27/1977 was filed by the appellants before the Sessions Judge who by his interim order dated 23rd April, 1977 stayed operation of the learned Magistrate 's order.
However, before the interim stay order could be communicated, the attachment had already been effected.
The learned Sessions Judge, therefore, again, by another interim dated 26th April, 1977 directed the police to restore the possession the property to the appellants from whom allegedly the possession of the property was taken.
The possession was restored to the appellants on 28th April, 1977.
The said Revision application was dismissed on 18th August, 1977.
Though, on account of the dismissal of the Revision, the order of attachment passed by the Magistrate revived, the learned Magistrate passed a fresh order dated 31st January, 1978 under Section 146 attaching the property in dispute.
Against the said order, once more a revision being Cr.
19/1978 was preferred by the appellants to the 5 Sessions Judge who on 2nd February, 1978 passed an order staying the fresh order of attachment passed by the Magistrate.
Thereafter, the appellants filed a suit for permanent injunction against the 1st Respondent and her husband, and in that claimed an interim injunction against them.
The trial court dismissed the application for interim injunction.
Against the order of dismissal, the appellant filed an appeal to the District Court, and the appellate court by its order dated 18th May, 1978, allowed the appeal and issued an interim injunction against 1st respondent and her husband.
Thereafter Cr.
Revision No. 19/1978 preferred by the appellant before the Sessions Judge was dismissed on 15th June, 1978 also on the ground that the civil suit was preferred by the Appellant.
Again, although the order of attachment stood revived and the order of interim injunction by the Civil Court still continued, the Magistrate on 25th July, 1978 passed another order attaching the property.
Against this third order of attachment passed by the Magistrate, a revision was filed by the Appellants before the Sessions Judge and the Sessions Judge by his order dated 26th July, 1978 stayed the order of attachment issued on 25th July, 1978, upto 10th August, 1978.
On 26th July, 1978, the appellant filed an application before the Magistrate for withdrawal of attachment on the ground that there was no apprehension of a breach of the peace.
On this application, on 17th October 1978, the Magistrate ordered withdrawal of attachment.
Against this order, the 1st Respondent filed revision being Cr.
180/78 before the Sessions Judge who dismissed the same on 14th May, 1979.
Respondent No. 1 thereafter, preferred an application under Section 482 of the Code before the High Court for quashing the order withdrawing the attachment and directing the attachment to continue.
The High Court by the impugned order took the view that it was not open to the learned Magistrate to withdraw the attachment till the competent Court had decided the matter finally and restored the attachment.
On these facts, two questions arise in this appeal viz. whether the High Court could entertain the second revision application in exercise of its inherent powers under Section 482 of the Code and whether the interpretation placed by the High Court on the provisions of Sections 145 and 146 of the Code is correct.
There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Sessions Judge.
It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate.
The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier.
Let that be as it is.
The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revision application at the instance of the 1st respondent.
Admittedly the 1st respondent had preferred a Criminal Application being Cr.
180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment.
The Sessions Judge had dismissed the said application on 14th May, 1979.
Section 397 (3) bars a second revision application by the same party.
It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code.
Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent.
On this short ground itself, the impugned order of the High Court can be set aside.
However, since the High Court has also proceeded to interpret the provisions of Sections 145 and 146 of the Code, it has become necessary to set things right on that score as well.
We are afraid that the High Court has erred in holding that the order passed by the Sub Divisional Magistrate on 17th October, 1978 [17.9.78 (sic.)] withdrawing attachment, was without jurisdiction.
The provisions of Section 146 of the Code are clear in this respect.
The Section reads as follows: "146.
Power to attach subject of dispute and to appoint receiver.
(1) If the Magistrate at any time after making the order under sub section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such 7 possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908): Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate [a] shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him: [b] may make such other incidental or consequential orders as may be just.
" It is obvious from sub section (1) of Section 146, that the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession there or.
The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination.
The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject matter of the dispute pending the final decision in the suit.
The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end.
Otherwise, there will be inconsistency 8 between the order passed by the civil court and the order of attachment passed by the Magistrate.
The proviso to sub section (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute '.
When a civil Court passes an order of injunction or receiver, it is the civil Court which is seized of the matter and any breach of its order can be punished by it according to law.
Hence on the passing of the interlocutory order by the civil Court, it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.
The fact that the Magistrate can withdraw the order of attachment passed by him even during the pendency of the dispute in the civil Court is made further clear by the provisions of sub section (2) of Section 146.
When the civil Court appoints a receiver, the order of attachment passed by the Magistrate necessarily gives way to the order of the Civil Court appointing the receiver.
It is only when the civil Court does not appoint the receiver that the Magistrate may make arrangements for looking after the property or even appoint a receiver himself However, even when such a receiver is appointed and the civil Court subsequently appoints a receiver of its own, the Magistrate has to order the receiver appointed by him to hand over the possession of the subject in dispute to the receiver appointed by the civil Court and discharge the receiver appointed by him.
He has also to pass such other incidental or consequential orders as he thinks just.
Such order may include an order of withdrawal of the attachment in view of the seizure of the matter by the civil Court and the consequent want of apprehension of breach of the peace.
It is, therefore, not correct to say as held by the High Court that the property continues to remain under attachment of the Magisterial order till the rights of the parties are decided finally by the competent Court of law.
That appears to be the purport of the High Court 's order since in the present case the appellate civil Court has already passed an order of injunction against the 1st Respondent and her husband by virtue of which the possession continues to be with the appellants.
In this view of the matter, the Magistrate had not erred in withdrawing the attachment by his order dated 17th October, 1978.
For both these reasons, the appeal is allowed and the impugned order of the High Court is set aside.
It is necessary to add that the suit as filed by the Appellants is only for a permanent injunction.
The appellants must amend the plaint for claiming also the declaration of their title to the property in question.
N.P.V. Apppeal allowed.

summary:
There was a dispute between the appellants and the first respondent, regarding the possession of a house.
On an application filed by the respondent under Section 145 of Criminal Procedure Code, 1973, before the Sub Divisional Magistrate, claiming ownership of the suit property, the Magistrate passed a preliminary order under Section 145 of the Code, and thereafter, made an order of attachment under Section 146 directing that the attachment would continue till the competent civil court determined the rights of the parties.
On a revision riled by the appellants, the Sessions Judge granted an interim stay of Magistrate 's order.
Subsequently, the Revision application was dismissed.
Ile Magistrate passed a fresh attachment order under Section 146.
Once more in revision the Sessions Judge passed an order staying the fresh order of attachment.
Thereafter, the appellants riled a suit for permanent injuction and also an interim injunction.
The trial court dismissed the application for interim injunction.
On appeal, the District Court issued an interim injunction against 1st respondent and her husband.
Subsequently, the 2 Criminal Revision preferred by the appellant was dismissed by the Sessions Judge also on the ground that the civil suit was preferred by the appellant.
Once again, the Magistrate passed another order attaching the property but this third order of attachment was stayed by the Sessions Judge for a period of 15 days.
Thereafter, on an application by the appellants for withdrawal of attachment on the ground that there was no apprehension of a breach of the peace, the Magistrate order withdrawal of attachment.
The Revision filed by the 1st respondent against the Magistrate 's order was dismissed by the Sessions Judge.
On an application under Section 482 of the Code filed by Respondent No.1 for quashing the order withdrawing the attachment and for directing the attachment to continue, the High Court held that it was not open to the Magistrate to withdraw the attachment till the competent court had decided the matter finally and restored the attachment.
Hence the appeal.
Allowing the appeal, this Court HELD : 1.1.
The determination by a competent court of the rights of the parties spoken in Section 146(1) of the Criminal Procedure Code, 1973, has not necessarily to be a final determination.
The determination may be even tentative at the interim stage when the competent court passes an order of interim injunction or appoints a receiver in respect of the subject matter of the dispute pending the final decision in the suit.
The moment the competent court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end.
Otherwise, there will be inconsistency between the order passed by the civil court and the order of attachment passed by the Magistrate.
The proviso to sub section (1) of Section 146 itself takes cognizance of such a situation.
When a civil court passes an order of injunction of receiver, it is the civil court which is seized of the matter and any breach of its order can be punished by it according to law.
Hence, on the passing of the interlocutory order by the civil court, there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.
Under Section 146(2) the Magistrate can withdraw the order of attachment passed by him even during the pendency of the dispute in the civil court.
When the civil court appoints a receiver, the order of attachment passed by the Magistrate, necessarily 3 gives way to the order of the civil court appointing the receiver.
It is only when the civil court does not appoint the receiver that the Magistrate may make arrangements for looking after the property or even appoint a receiver himself However, even when such a receiver is appointed and the civil court subsequently appoints a receiver of its own, the Magistrate has to order the receiver appointed by him to hand over the possession of the subject in dispute to the receiver appointed by the civil court and discharge the receiver appointed by him.
He has also to pass such other incidental or consequential orders as he thinks just.
Such order may include an order of withdrawal of the attachment, in view of the seizure of the matter by the civil court and the consequent want of apprehension of breach of the peace.
It is, therefore, not correct to say that the property continues to remain under attachment of the Magisterial order till the rights of the parties are decided finally by the competent court of law.
[7G H, 8A C, D F] 1,2.
In tic present case, the Appellate Civil Court has already passed an order of injunction against the 1st respondent and her husband by virtue of which the possession continues to be with the appellants.
Therefore, the Magistrate had not erred in withdrawing the attachment.
The High Court has erred in holding that the order passed by the Sub Divisional Magistrate withdrawing attachment was without jurisdiction.
[8G H, 6E] 2.1.
Section 397 (3) bars a second revision application by the same party.
It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code.
[6D] 2.2.
In the instant case, admittedly, the 1st respondent had preferred a Criminal Application to the Sessions Court against the order passed by the Magistrate, withdrawing the attachment.
The Sessions Judge had dismissed the said application.
Hence, the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent.
[6C,E] 3.
The Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application flied against It was dismissed by the Sessions Judge.
None of the parties, including the Sessions Judge, realised this error on the part of the Magistrate.
The Sessions Judge had also committed a patent mistake in entertaining 4 revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier.
[6A B]


judgement:
ppeals Nos. 125 and 164 of 1958.
Appeals by special leave from the Award dated August 26, 1957, of the Fifth Industrial Tribunal at West Bengal in Case No. VIII 264/56.
section C. Issacs and section N. Mukherjee, for the Appellants in C. A. No. 125/58 and Respondents in C. A. No. 164/58.
N. C. Chatterjee and Dipak Datta Choudhri, for the.
Respondents in C. A. No. 125/58 and Appellants in C. A. No. 164/58.
January 28.
The Judgment of the Court was delivered by SUBBA RAO, J.
These appeals are by Special Leave from the Award by Shri G. Palit, Judge, Fifth Industrial Tribunal, West Bengal, in the matter of a dispute between Messrs. Bengal Chemical & Pharmaceutical Works Limited, Calcutta, and their employees, represented by Bengal Chemical Mazdoor Union, Calcutta.
The Government of West Bengal by its order dated September 13, 1956, referred the following dispute between the parties referred to above to the Second Industrial Tribunal under section 10 of the (Act 14 of 1947), hereinafter referred to as the Act.
" Is the demand of the employees for increase in Dearness Allowance justified ? If so, at what rate?".
The said Act was amended by the 139 Industrial Disputes (Amendment & Miscellaneous Provisions) Act, 1956 (36 of 1956), which came into force on August 28, 1956.
On April 9, 1956, the ' Government made ail order transferring the said dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal.
The Fifth Industrial Tribunal, after making the necessary inquiry, made the award on August 26,1957, and it was duly notified in the Calcutta Gazette on September 26, 1957.
As a mistake had crept in, the award was modified by the Tribunal by its order dated the 29th November, 1957; and the modified award was published in the Calcutta Gazette on the 29th November, 1957.
Under the award the Tribunal held that there was a rise in the cost of living index and that to neutralise the said rise the employees should get an increase of Rs. 7 in dearness allowance on the pay scale up to Rs. 50 and Rs. 5 on the pay scale above Rs. 50.
On that basis the dearness allowance payable to the employees was worked out and awarded.
The correctness of the award is questioned in these appeals.
The Company preferred Civil Appeal No. 125 of 1958 against the award in so far it was against it and the Union preferred Civil Appeal No. 164 of 1958 in so far it went against the employees.
For convenience of reference, the parties will be referred to in the course of the judgment as the Company and the Union.
Learned Counsel for the Company raised before us the following points: (1) The order dated April 9, 1957, made by the Government transferring the dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal was illegal; (2) the previous award made by the Tribunal between the same parties on April 26, 1951, and confirmed by the Labour Appellate Tribunal by its order dated August 30, 1951, had not been terminated in accordance with the provisions of section 19(6) of the Act and therefore the present reference was bad in law and without jurisdiction; (3) there was no change in the circumstances obtaining at the time the previous award was made and those prevailing at the time of the present reference as to justify making out a new award; (4) the Tribunal 140 went wrong in taking the rise in the cost of living index between the years 1954 and 1957 instead of taking the fluctuating rate in the index between the date of the earlier award, i.e., August 30, 1951, and the date of the present reference in the year 1957 ; (5) the Tribunal went wrong in so far as it based its decision on the Second Engineering Award of 1950 which was already considered by the Tribunal in its earlier award of the year 1951; and (6) in any event, in computing the amount, the Tribunal applied wrong criteria.
We shall consider the above contentions seriatim.
But before doing so, it will be convenient to refer briefly to the scope of jurisdiction of this Court under article 136 of the Constitution vis a vis the awards of Tribunals.
Article 136 of the Constitution does not confer a right of appeal to any party from the decision of any tribunal, but it confers a discretionary power on the Supreme Court to grant special leave to appeal from the order of any tribunal in the.
territory of India.
It is implicit in the discretionary reserve power that it cannot be exhaustively defined.
It cannot obviously be so construed as to confer a right to a party where he has none under the law.
The is intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration.
Awards are given on circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical considerations imposed on courts.
A free and liberal exercise of the power under article 136 may materially affect the fundamental basis of such decisions, namely, quick solution to such disputes to achieve industrial peace.
Though article 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice, causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation, and final decision by this Court or discloses such other exceptional or special circumstances which merit the consideration of this Court.
The points raised by the 141 learned Counsel, except perhaps the first point , do not stand the test of any one of those principles.
Learned Counsel for the Company, however, says that, though the ' said principles might be applied at the time of granting leave, once leave is given no such restrictions could be imposed or applied at the time of the final disposal of the appeal.
The limits to the exercise of the power under article 136 cannot be made to depend upon the appellant obtaining the special leave of this Court, for two reasons, viz., (i) at that stage the Court may not be in full possession Of all material circumstances to make up its mind and (ii) the order is only an ex parte one made in the absence of the respondent.
The same principle should, therefore, be applied in exercising the power of interference with the awards of tribunals irrespective of the fact that the question arises at the time of granting special leave or at the time the appeal is disposed of.
It would be illogical to apply two different standards at two different stages of the same case.
The same view was expressed by this Court in Pritam Singh vs The State of Madras (1), Hem Raj vs State of Ajmer(1) and sadhu Singh vs State of Pepsu(3) The first question turns upon the construction of the relevant provisions of the Act as amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956.
The relevant provisions inserted by the Amending Act read as follows: "Section 2(r) : I Tribunal ' means an Industrial Tribunal constituted under section 7A." " 7 A. Tribunals. (1) The appropriate Government may, by notification in the official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule.
(2) A Tribunal shall consist of one person only to be appointed by the appropriate Government.
(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless (1) ; (2) (3) A.I.R. 1954 S.C. 271.
142 (a) he is, or has been, a Judge of a High Court; or (b) he has held the office of the Chairman or any other member of the Labour Appellate Tribunal constituted under the Industial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950), or of any Tribunal, for a period of not less than two years.
(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it." "33B. (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal, or National Tribunal, ' as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred : Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court.
" Section 30 of the Amending Act reads: " If immediately before the commencement of this Act, there is pending any proceeding in relation to an industrial dispute before a Tribunal constituted under the (14 of 1947), as in force before such commencement, the dispute may be adjudicated and the proceeding disposed of by the Tribunal after such commencement, as if this Act has not been passed." Section 7, before the Amendment ran thus: " The appropriate Government may constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act.
(2) A Tribunal shall consist of such number of members as the appropriate Government thinks fit.
Where the Tribunal consists of two or more members, one of them shall be appointed as chairman.
143 (3) Every member of the Tribunal shall be an independent person, (a) who is or has been a Judge of a High Court or a District Judge, or (b) is qualified for appointment as a Judge of a High Court: Provided that the appointment to a Tribunal of any person not qualified under part (a) shall be made in consultation with the High Court of the Province in which the Tribunal has or is intended to have, its usual place of sitting.
" It will be seen from the aforesaid provisions that the Amending Act, which came into force on August 28, 1956, changed the constitution of a tribunal to some extent and conferred a power for the first time on the Government to transfer a proceeding pending before a tribunal to another tribunal; or in the case of a proceeding under section 33 or 33A pending before a tribunal to another tribunal or to a Labour Court.
Section 30 of the Amending Act expressly saves a pending proceeding before a tribunal constituted under the Act before the Amending Act came into force and directs that such dispute shall be adjudicated and the proceeding disposed of by that tribunal after the commencement of the Amending Act as if that Act had not been passed.
A combined and fair reading of the aforesaid provisions, it is argued, was that section 33B, inserted in the Act by the Amending Act, was prospective in operations i.e., it would apply only to proceedings initiated in the tribunal constituted Under the amended Act and that proceedings pending before the tribunals constituted under the Act before the commencement of the Amending Act would be disposed of as if the Amending Act had not been passed.
The Parliament, presumably to clarify the position, brought out another Amending Act styled the Industrial Disputes (Amendment) Act, 1957 (18 of 1957), whereunder among other things, a new definition of " Tribunal " was given in substitution of that in section 2(r) of the Act.
The substituted definition reads: " 'Tribunal ' means an Industrial Tribunal constituted under section 7A and includes an Industrial 144 Tribunal constituted before the 10th day of March, 1957, under this Act.
" Sub section (2) of section I of the Amending Act 18 of 1957 says that section 2 shall be deemed to have come into force on the 10th day of March, 1957.
The result is that section 33B should be read along with the definition of a " Tribunal " inserted by the Amendment Act 18 of 1957, as if that definition was in the Act from March 10, 1957.
If that definition of a " Tribunal " 'be read in place of the word ,Tribunal" in section 33B, the relevant part of that section reads: " (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Tribunal constituted before the 10th day of March, 1957, and transfer the same to another Tribunal constituted under section 7A of the Act." So construed it follows that in respect of proceedings pending in a tribunal constituted before the 10th day of March, 1957, the Government has the power to transfer them from that date to any other tribunal.
It is said that this construction would make section 30 of the Amending Act 36 of 1956 otiose or nugatory.
That section contained only a saving clause and it was not inserted in the Act; it served its purpose, and even if it ceased to have any operative force after the Amendment of 1957, that circumstance cannot have any bearing on the impact of the amendment of the definition of " Tribunal " on the provisions of section 33B of the Act.
In the present case, the Government made the order of transfer on April 9, 1957, i.e., after section 2 of Amendment Act 18 of 1957 was deemed to have come into force.
It must, therefore, be held that the Government acted well within its powers in transferring the dispute pending before the Second Industrial Tribunal, to the Fifth Industrial Tribunal.
The second contention, namely, that the Award of 1951 was not terminated in accordance with law, does not appear to have been pressed before the Tribunal.
The governing section is section 19(6) which says: " Notwithstanding the expiry of the period of operation under sub section (3), the award shall 145 continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award '.
" In the first written statement filed by the Company before the Tribunal, no plea was taken based upon section 19(6) of the Act.
In the second written statement filed by the Company on December 20, 1956, a contention was raised to the effect that the award dated June 21, 1951, was not terminated under section 19(6) of the Act, that the said award was binding between the parties and therefore the reference was bad in law.
Notwithstanding the said allegation, the award dis closes that no issue was raised on that count and no argument was advanced in support thereof.
This attitude might have been adopted by the Company either because it did not think fit to rely upon a technical point but had chosen to get a decision of the Tribunal on merits, or it might be that there was no basis for the contention, as the company might have received notice under the said section.
Though it may not be quite relevant, it may be mentioned that even in 1951 when the dispute between the parties was referred to the Industrial Tribunal, though a similar contention was open to the Company and indeed was suggested by the Tribunal, it moved the Tribunal to give an award on the merits of the matter.
If this plea had been seriously pressed, the Tribunal would have raised a separate issue and the Union would have been in a position to establish that notice had been served on the Company as required by section 19(6) of the Act.
As the question raised depends upon elucidation of further facts, we do not think that we would be justified in allowing the Company to raise the plea before us, and we, therefore, do not permit them to do so.
The fourth point turns on the construction of the terms of the agreement entered into between the parties on September 15, 1954.
The dispute between the parties had an earlier origin and apart from the 19 146 present reference, there were as many as four references and four awards, and the last of them was dated April 3, 1951.
The Company preferred an appeal against that award to the Labour Appellate Tribunal , Calcutta, which, with some modification, confirmed the award of the Tribunal on August 30, 1957.
That award as modified by the Appellate Tribunal fixed the basic wages and the rate of dearness allowance payable to the employees.
The employees were not satisfied with the award and they placed before the.
Company a new charter of demands claiming higher rates of dearness allowance and wages, but the dispute was compromised and the parties entered into an agreement dated September 15, 1954, by virtue of which, the Company introduced the incremental scale in the wage structure.
As regards the dearness allowance, it was stated in cl. 1 1 of the agreement as follows: "The existing rate of D. A. will prevail unless there is a substantial change in the working class cost of living index,in which case the rate will be suitably adjusted." On the construction of this clause depends the question of the Union 's right to claim enhanced dearness allowance.
It is common case that if the cost of living index in the year 1951 was taken as the basis, there was a fall in the rate of working class cost, of living index in 1957.
On the other hand, if the cost of living index in 1954 was the criterion, there was a substantial increase in the cost of living index in 1957.
The question, therefore, is what did the parties intend to agree by the aforesaid clause in the agreement.
To ascertain the intention of the parties, we should con sider the circumstances under which the said agreement was entered into between the parties.
Exhibit 6 is the said agreement.
The preamble to the agreement reads : " The Company and the Union came to a settlement in respect of the Pay Scales and Grades in the Charter of Demands dated 25th June, 1953, at the intervention of Shri A. R. Ghosh, Asstt.
Labour Commissioner during the Conciliation proceedings ending on the 30th August, 1954.
" 147 The preamble indicates that the entire situation obtaining on the date of the agreement was reviewed and the parties agreed to the terms of the settlement mentioned therein.
Under clause (1) of the agreement, pay scale and grade as given in annexure B was agreed upon for the time being for a period of three years as an experimental measure, to be reviewed, modified or suspended or withdrawn after three years, depending upon the Company 's business and financial condition.
By el.
(2), the employees agreed not to raise any dispute involving any further financial burden on the Company during the next three years in respect of pay scale and grade.
Clauses (3) to (5) deal with increments and the age of retirement.
Clause (6) provides for the piece rated (contract) workers in respect of their increments.
Clause (7) is in respect of increment for the daily rated workers.
Clause (8) is in respect of the grade and scale of pay and increments of Chemists, Engineers and Doctors, etc.
Clause (9) is to the effect that the employees who would be made permanent thence forward would be grouped under two divisions for the purposes of giving effect to the scale of pay.
Clause (11) which we have already extracted above relates to the dearness allowance.
Clause (12) says " barring the question of bonus for 1358 and 1359 B. S.the Union withdraws its claim in respect of other items in the Charter of Demands dated 25th June, 1953.
" We have given the agreement in extenso only for the purpose of showing that all the disputes between the parties arising out of the charter of demands dated June, 25, 1953, were settled between them and reduced to writing.
The agreement was self contained and started a new chapter regulating the relationship of the parties to the dispute in respect of matters covered by it.
The award must be deemed to have been superseded by the new agreement.
In this context the crucial words " existing rate of D. A. ", on which both the learned Counsel relied, could have only one meaning.
Do the words " existing rate " refer to the date of the agreement or to the date of the award ? It is true that the existing rate of D. A. had its origin in the award and was made to prevail 148 under the agreement, that is to say that the rate was accepted by the parties as reasonable on the date of "the agreement, till there was a substantial change in the working class cost of living index.
If the contention of the learned Counsel for the Company should prevail, the agreement would not be self contained, but only to be construed as modifying the earlier award to some extent.
We are satisfied that in regard to matters covered by it, the agreement replaced the earlier award and therefore the date of the agreement is the crucial one for ascertaining whether there was substantial change in the working class cost of living index in the year 1957.
We, therefore, reject this contention.
Contentions 3, 5 and 6 raise pure questions of fact.
The Tribunal, on the consideration of the entire material placed before it, came to the conclusion that there was change of circumstances which entitled the employees to claim an increase in their dearness allowance.
It has also fixed the rate of increase in the dearness allowance on the basis of the rise in the cost of living index.
In doing so, it also took into consideration the difficulties facing the industry and the repercussion of the rise in the dearness allowance on the consumers in general.
Having regard to the overall picture, it came to the conclusion that full neutralisation of the deficiency as a result of rise in the cost of living index by dearness allowance could not be permitted and therefore allowed them only 75 per cent.
of the increase in the dearness allowance to which they would have otherwise been entitled on the basis of the rise in the cost of living index.
The finding given by the Tribunal is one on fact and we do not see any permissible ground for interference with it in this appeal by special leave.
Before closing, one point strenuously pressed upon us by the learned Counsel for the Company which is really another attempt to attack the finding of fact given by the Tribunal from different angle must be mentioned; it was that the Tribunal wrongly relied upon Exhibit 3, corrected on the basis of the information given by the State Statistical Bureau, West Bengal, for ascertaining the working class cost of living index since August 1954 up to March 1957.
On the 149 basis of Exhibit 3, the Tribunal held that the working class cost of living index stood at 344.1 in August 1954 and it rose to 400.6 in May 1957, with the result that there was a rise of 56 points, a substantial rise in the cost of living index.
Exhibit 3 certainly supports the finding of the Tribunal.
The learned Counsel for the Company points out with reference to the relevant entries in the Monthly Statistical Digest, West Bengal, that the said figures relate only to working class menials and the corresponding entries in regard to the working class cost of living index do not indicate so much increase as in the case of the menial class.
Learned Counsel has also taken us through the relevant figures.
The relevant entries in the Monthly Statistical Digest were not filed before the Tribunal.
Indeed when the Union 's witness, Shri Satyaranjan Sen, was examined before the Tribunal, he was not cross examined with a view to elicit information that Exhibit 3 did not relate to the working class cost of living index.
When Shri Chatterjee, the Assistant Manager of the Company, who was examined after Shri Sen, gave evidence, he not only did not object to the entries in Exhibit 3 but stated that he was not aware of any substantial increase in the working class cost of living index and complained that similar entries for all the relevant years had not been produced.
Even before the Tribunal it does not appear that any argument was advanced contesting the relevancy of Exhibit 3 on the ground that it did not refer to the working class cost of living index.
In the circumstances, we do not think that we are justified to allow the learned Counsel for the Company to make out a new case for the first time before us, upsetting the Tribunal 's basis for calculation and involving further and different calculations.
In the result, we confirm the award of the Tribunal and dismiss the appeal with costs.
The learned Counsel, appearing for the Union, did not press the appeal No. 164 of 1958, filed by the Union, and therefore it is also dismissed with costs.
Appeals dismissed.

dataset_name: IN-Abs

summary:
Aggrieved by an Award of 195, the employees placed before the Company a fresh charter of demands which was mutually settled by a written agreement which provided, inter alia, that the existing rate of dearness allowance should prevail which was adjustable to any future substantial change in the cost of living index of the working class.
As the cost of living increased disputes arose, and in spite of the said Award of 1951, 137 which was not terminated according to law, the dispute arising out of the said written agreement was referred for adjudication by the Government to the Second Industrial Tribunal, Calcutta, in September, 1956.
In April 1957, the Government transferred the dispute from the Second Industrial Tribunal to the Fifth Industrial Tribunal.
The Company, inter alia, contended that the Government had no power to transfer the dispute from one Tribunal to another and that the reference was bad as the 1951 Award had not been duly terminated.
The Industrial Disputes (Amendment and Miscellaneous Provisions) Act (36 of 1956) amending the Industrial Disputes Act (14 Of 1947) came into force on August 28, 1956, giving authority to the Government to transfer a reference from one Tribunal to another, which was followed by a further amending Act, being Industrial Disputes (Amendment) Act (18 of 1957) whereunder among other things a new definition of 'Tribunal ' was given, whereby the Industrial Tribunal constituted prior to March 10, 1957, under section 7A of Act 14 Of 1947 was included.
Held, that as a result of the amendments to the , the Government had authority to transfer a case from one Tribunal to another. 'Tribunal ' as defined by section 2(r) of the , as amended by Act 36 of 1956, read with amending Act 18 of 1957, empowers the Government to transfer a reference from one Tribunal to another.
Where, in spite of a previous award, the employees after raising fresh demands entered into a new agreement with the employer which started a fresh chapter regulating the relationship of the parties, the previous award, though not terminated in accordance with the provisions of law, must be deemed to have been superseded.
Held, further, that though article 136 of the Constitution is couched in the widest terms and confers a discretionary power, (which cannot exhaustively be defined) on the Supreme Court to grant special leave to appeal from the order of a tribunal, but it is necessary for the Supreme Court to exercise its said discretionary jurisdiction only in cases (a) where there is a violation of the principle of natural justice, (b) raises an important principle of industrial law requiring elucidation and final decision by the Supreme Court, or (c) discloses such other exceptional or special circumstances which merit the final decision by the Supreme Court.
Such discretionary reserve power cannot obviously be so construed as to confer a right of appeal to any party from the decision of a Tribunal, where he has none under the law.
is intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration.
Awards are given on circumstances peculiar to each dispute and the Tribunals are to a 18 138 large extent free from restrictions of technical considerations imposed on courts.
A free and liberal exercise of the discretionary powers by the Supreme Court may materially affect the fundamental basis of the decision, namely, quick solution to such disputes to achieve industrial peace.
Where an Industrial Tribunal on the consideration of the entire material placed before it and having regard to the overall picture, came to a conclusion of facts, the Supreme Court will not interfere with such finding of fact nor will it be justified to allow to make a new case for the first time before it.
Pritam Singh vs State of Madras, ; ; Hem Raj vs State of Ajmer, and Sadhu Singh vs State of PEPSU, A.I.R. 1954 S.C. 272, referred to.


judgement:
iminal Appeal No. 32 of 1982.
From the Judgment and Order dated 1.10.1981 of the Delhi High Court in Criminal Misc.
(Main) No. 304 of 1980.
S.L. Chowdhary and Pradeep Misra for the Appellant.
Rakesh K. Khanna and R.P. Singh for the Respondent.
The following order of the Court is delivered: Even though the dispute between the parties came to this Court from an initial order passed under Section 145 of the Code of Criminal Procedure, this Court realising that the dispute was between close relatives in respect of their interests in certain properties which were also the subject matter in a Civil Suit No. 434/78 (Remand) of the Court of Sub Judge, First Class, Delhi, advised the parties to have the same resolved through an Arbitrator.
On the parties agreeing, this Court passed an order on September 5, 1986 recording the agreement to refer the dispute to arbitration and appointed Mr. Justice V.D. Misra, retired Chief Justice of the High Court of Himachal Pradesh, as the Sole Arbitrator.
The parties had agreed to deposit a sum of Rs. 3,000 each with the Arbitrator to meet with his expenses and remuneration subject to further directions that may be made in that behalf.
It was further directed that the learned Arbitrator will render a speaking award within four months.
In view of the said agreement, the appeal was allowed and the High Court 's impugned order was set aside.
It appears that thereafter one of the parties, namely, Jagdish Chander Bhatia, did not deposit the expenses with the Arbitrator and raised objection in regard to the arbitration proceedings on the plea that the property in dispute was proposed to be resumed by the Union of India.
In the meantime, it appears that the sole Arbitrator passed away and in his place Mr. Justice M.S. Gujral retired Chief Justice of the High Court of Sikkim, was appointed the Sole Arbitrator.
This Court did not approve of the conduct of Jagdish Chander Bhatia in not depositing the amount and 'in trying to avoid adjudication of the dispute through arbitration.
After this 54 order was passed on October 12, 1990 by which a further sum of Rs. 8,000 was directed to be deposited with the Arbitrator, subject to the Arbitrator deciding who should bear the cost, the newly appointed Arbitrator entered upon the reference and submitted his award on November 14, 1991.
This concluding part of his Award reads as under: "House No. 17 would entirely belong to Lachhman Das Bhatia whereas House No.18 would be jointly owned by Lachhman Das and Jagdish Chander.
Lachhman Das would have 76.50% share whereas Jagdish Chander would have 23.50% share in House No.18.
As House No.17 has entirely been given to Lachhman Das Bhatia in all fairness, Jagdish Chander Bhatia should give vacant possession of House No.17 to Lachhman Das Bhatia.
" The parties were directed to bear their own costs of the arbitration proceedings except that Jagdish Chander Bhatia had to pay Rs. 4,000 to Lachhman Das Bhatia as his share of the Arbitrator 's fees which he had initially failed to deposit.
Against this award, Jagdish Chander Bhatia (hereinafter called 'the objector ') has filed objections under Section 30 of the which provision reads as under: "An award shall not be set aside except on one or more of the following grounds, namely (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration proceedings have become invalid under Section 35; (c) that an award has been improperly procured or is otherwise invalid.
" It was conceded by the learned counsel for the Objector that clause (b) would not be attracted.
His main submission was that the Arbitrator had misconducted himself, in that, he did not take into consideration several documents which were placed on record before him which support the Objector 's case and hence the Award was invalid.
He, therefore, partly relied on clauses (a) and (c) for setting aside the Award.
55 The documents to which the learned counsel for the objector invited our attention, are to be found in Vol.2 of the paper book placed before us.
These documents are 31 in number and they mainly relate to the rights and interests of the parties in properties situate in that part which now belongs to the Dominion of Pakistan.
Since they were refugees they had made certain claims under the law governing rehabilitation of displaced persons in respect of the properties left behind by them.
These documents show that the claim was sanctioned in the name of Punnu Ram Lachhman Das in respect of the properties left behind by the family.
On the strength of that claim, House No.18 was purchased in the said name.
The Arbitrator, however, came to the conclusion, as is evident from the discussion from paragraph 26 and onwards of the Award, that the property in question was purchased for Rs. 12,850 from the funds contributed by Punnu Ram and Lachhman Das, the former paying Rs. 9,233 and the latter Rs. 3,617.
This is the conclusion reached by the Arbitrator as is evident from paragraph 37 of the Award.
The share of the Objector was held to be 1/7th in the share of Punnu Ram, since deceased.
It was on this finding recorded by the Arbitrator that he passed the ultimate order extracted above.
The arbitrator has made a speaking award setting out his reasons for the conclusions reached by him.
He has thus complied with the direction of this Court given earlier.
On a perusal of the award, it becomes clear that the Arbitrator did not go into the rights and interests of the parties including the HUF in the properties left behind in the Dominion of Pakistan.
That was, in our opinion, not necessary because the fact that the claim was sanctioned in the name to the Punnu Ram Lachhman Das was never in dispute.
The short question, which the Arbitrator was required to consider, was as regards the title of the properties which were the subject matter of the reference which included the property purchased for Rs. 12,850 on the strength of that claim.
In dealing with that question the Arbitrator came to the conclusion that Punnu Ram and Lachhman Das had contributed the entire consideration of Rs. 12,850 and hence they were the owners of the property and on the death of Punnu Ram inheritance opened insofar as his share in the property was concerned and the Arbitrator came to the conclusion that the Objector was entitled to 1/7th out of the share of the deceased.
Since the contribution made for payment of the price was not equal, the Arbitrator allotted a larger share to Punnu Ram and consequently the Objector has got a share on the basis thereof.
Practically, all the documents included in Vol.2 relate to the interest of the 56 parties and their HUF in the properties left behind in the Dominion of Pakistan.
The learned counsel for the Objector then tried to take us into the rights and interests of the parties in those properties, but we declined to go into the same as we thought that the Arbitrator was right that he was called upon to decide the interest of the parties in Houses Nos. 17 and 18 alone which were the subject matter of the reference.
We are, therefore, of the opinion that the Arbitrator had not misconducted himself by refusing to enumerate those documents in Vol.2 in his award because he was bound by the scope of the reference which was limited to Houses Nos. 17 and 18 and not the properties left behind in the Dominion of Pakistan by the parties.
For this reason, we are of the opinion that there is no infirmity on the face of the award which would entitle us to exercise jurisdiction under Section 30 of the .
This Court pointed out in Food Corporation of India vs Joginderpal Mohinderpal & Anr., [1989] 2 SCC 347 that an award of an Arbitrator can only be interfered with or set aside or modified within the four comers of the procedure provided by the statute.
The Court must find out whether the Arbitrator has misconducted himself or there was any infirmity in the procedure, such as, the Arbitrator having travelled beyond the terms of the reference or there being an error apparent on the face of the award.
It is not misconduct on the part of an Arbitrator to come to an erroneous conclusion on a disputed issue.
In case of error apparent on the face of the award, the award can be set aside only if there is any proposition of law on which the award is based which is in conflict with law.
It must be demonstrated to the Court that the reasons given by the Arbitrator are so palpably erroneous in law that they have resulted in the Arbitrator taking a view which cannot be sustained in law.
To put it differently the Court does not sit in appeal and does not re assess the evidence.
Even if the Court feels that had it been left to it, it would have assessed the evidence differently that would not be a valid ground for setting aside the award.
In Hind Builders vs Union of India, [1990] 3 SCC 338, this Court pointed out that where on an interpretation of any contract or document, two views are possible and the Arbitrator accepts one view while the other view is more appealing it would not be open to the Court to interfere with the Award.
We, therefore, in the facts and circumstances of this case, see so reason to interfere with the award of the Arbitrator.
The Suit No. 434/78 pending in the Court of the Sub Judge, Delhi 57 was disposed of by that Court, and an appeal, being Civil Appeal No. 211 of 1979 (Jagdish Chander Bhatia vs Lachhman Das Bhatia) preferred on April 23, 1979 against that decree, is pending in the Court of the District Judge, Delhi.
We transfer that appeal to our file and make the Arbitrator 's award the rule of the Court.
The decree of the trial court is set aside and a decree in terms of the award will be drawn up in the appeal proceedings arising out of Suit No. 434/78.
We, however, do not make any order as to costs in the present proceedings.
N.P.V. Appeal disposed of.

summary:
The dispute between the appellant and the respondent in respect of their Interests In certain properties, was referred to arbitration by this Court and a retired Chief Justice of a High Court was appointed as the sole Arbitrator with direction to make a speaking award, and the Arbitrator submitted his Award.
Against this award the appellant objector filed objections under Section 30 of the , contending that the Arbitrator had misconducted himself in that he did not take into consideration several documents which were placed on record before him to support the objector 's case and, hence, the award was invalid under clauses (a) and (c) of Section 30.
Disposing of the Appeal, this Court HELD : 1.1.
There is no infirmity on the face of the award which would entitle this Court to exercise jurisdiction under Section 30 of the .
The Arbitrator has made a speaking award setting out his reasons for the conclusions reached by him and has thus complied with the direction of this Court given earlier.
[56D, 55E] 12.
The documents in question mainly relate to the rights and interests of the parties In the properties situate in that part which now belongs to the Dominion of Pakistan.
Since they were refugees they had made certain claims under the law governing rehabilitation of displaced persons in respect of the properties left behind by them.
The claim was sanctioned in the joint same of the objector 's predecessor in Interest and the respondent in respect of the properties left behind by the family.
On the strength of that 52 claim, one of the houses was purchased in the said name.
The Arbitrator, however, came to the conclusion, that the property in question was purchased from the funds contributed by the objector 's predecessor in interest and the respondent.
The share of the objector was held to be 1/7th in the share of the predecessor in interest, since deceased.
Since the contribution made for payment of the price was not equal, the Arbitrator allotted a larger share to objector 's predecessor in interest and consequently, the objector has got a share on the basis thereof, when inheritance opened on the death of the predecessor in interest.
[55B D.H, 56A] 1.3.
It is clear from the award that the Arbitrator did not go into the rights and interests of the parties including the HUF in the properties left behind in the Dominion of Pakistan.
That was not necessary because the fact that the claim was sanctioned in the joint name of the Objector 's predecessor in interest and the respondent was never in dispute.
The short question, which the Arbitrator was required to consider, was as regards the title of the properties, which were the subject matter of the reference, which included a house purchased on the strength of that claim.
It is not necessary for the Court to go into the question of the rights and interests of the parties in the properties left behind in the Dominion of Pakistan since the Arbitrator was right that he was called upon to decide the interest of the parties in respect of two houses alone, which were the subject matter of the reference.
Therefore, the Arbitrator had not misconducted himself by refusing to enumerate all those documents in question in his award because he was bound by the scope of the reference which was limited to the two houses and not the properties left behind in the Dominion of Pakistan by the parties.
[55F, 56B C] 2.
In order to interfere with an award, the Court must rind out whether the Arbitrator has misconducted himself or there was any infirmity in the procedure, such as, the Arbitrator having travelled beyond the terms of the reference or there being an error apparent on the face of the award.
It is not misconduct on the part of an Arbitrator to come to an erroneous conclusion on a disputed issue.
The Court does not sit in appeal and does not reassess the evidence.
Even if the Court feels that had it been left to it, it would have assessed the evidence differently that would not be a valid ground for setting aside the award.
[56E, G] 3.
Therefore, in the facts and circumstances of the case, there is no reason to interfere with the award, which is made the rule of the 53 Court.
[56H, 57A B] Food Corporation of India vs
Joginder pal Mohinderpal & Anr., [1989]2 S.C.C. 347 and Hind Builders vs Union of India, [1990] 3 S.C.C. 338, relied on.