judgement:
(Civil) No. 960 of 1987.
(Under Article 32 of the Constitution of India).
G.L. Sanghi, B.A. Masodkar, Sunil Dogra and P.H. Parekh for the Petitioner.
V.C. Mahajan, K. Swami and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
This writ petition under Article 32 of the Constitution by a Judicial Member of the Central Administra tive Tribunal purports to be a sequal of this Court 's deci sion in S.P. Sampath Kumar vs Union of India, and Ors., ; The petitioner contends that the decision in Sampath Kumar 's case (supra) equates the Central Adminis trative Tribunal with the High Court and therefore, its Chairman has to be equated with the Chief Justice of a High Court and the Vice Chairman and Members must be equated with the sitting Judges of the High Court in all respects.
It is contended that while the Vice Chairman have been equated with sitting Judges of the High Court, the Members have not been so equated in their pay and other conditions of serv ice.
It is further contended that a distinction has been made in the conditions of service, particularly the pay and age of superannuation between the Vice Chairmen and the Members, which is arbitrary and therefore, the Members also should be given the same pay as the Vice Chairmen and their age of superannuation should also be the same i.e. 65 years as that of the Vice Chairmen.
It is urged that the judicial functions discharged by the Vice Chairmen and the 949 Members of the Central Administrative Tribunal are the same and therefore, the principle of "equal pay for equal work" applies.
Violation of Article 14 of the Constitution is alleged on this basis.
Part XIV A containing Articles 323 A and 323 B were inserted in the Constitution of India by the Constitution (Forty second Amendment) Act, 1976 enabling the setting up of Administrative Tribunals and Tribunals for other matters by legislative enactments.
The Central Administrative Tribunal has been constituted under Section 4 of the (hereinafter referred to as 'the Act ') with a Chairman, Vice Chairmen and Members judicial and administrative.
The qualifications for appointment of Chairman, Vice Chairmen or other Members are prescribed by Section 6 of the Act.
Sec tion 7 provides that the Vice Chairman or, as the case may be such one of the Vice Chairman as the appropriate Govern ment may, by notification, authorise in this behalf, shall act as the Chairman in the event of any vacancy in the office of the Chairman for any reason whatsoever, or when the Chairman is unable to discharge his functions for any reason.
Section 8 prescribes the term of office of the Chairman, Vice Chairman or other Members as five years from the date on which he enters upon his office with eligibility for re appointment for another term of five years provided that no Chairman or Vice Chairman shall hold the office after he has attained the age of 65 years and any other Member, the age of 62 years.
Section 10 of the Act provides for the salaries and allowances and other terms and condi tions of service of Chairman, Vice Chairman and other Mem bers to be such as may be prescribed by the Central Govern ment.
Section 17 confers on the Tribunal the same jurisdic tion, powers and authority in respect of contempt of itself as a High Court has under the .
But for this specific provision, the Tribunal would not have the power of the High Court in this behalf.
Section 18 provides for distribution of business amongst the Benches of the Tribunal.
Section 28 excludes the jurisdiction of courts except the Supreme Court or any Industrial Tribunal, Labour Court or other authority, constituted under the or any other corresponding law for the time being in force in relation to matters over which the Tribunal has been conferred jurisdiction.
Section 35 con tains the rule making power of the Central Government while Section 36 gives power to the appropriate Government to make rules to carry out the provisions of the Act and particular ly, for the matters specified therein.
The specified pur poses for which the Central Government can make rules speci fied in Section 35(2)(c) include 950 the salaries and allowances payable to, and the other terms and conditions of the Chairman, Vice Chairmen and other Members.
The rules framed under the Act are to be laid before the Parliament.
It is not necessary to give further details of the , the provisions of which were considered at length in Sampath Kumar 's case (supra) and now stand amended in accordance with the observations of this Court in that decision.
The Central Administrative Tribunal (Salaries and Allow ances and Conditions of Service of Chairman, Vice Chairmen and Members) Rules, 1985 (hereinafter referred to as 'the rules ') were framed in exercise of the powers conferred by Section 35(2)(c) of the .
Rule 3 therein, as it now exists, specifies Rs.9,000 p.m. as the pay of the Chairman; Rs.8,000 p.m. as the pay of the Vice Chairman; and the pay scale of Rs.7300 100 7600 per mensem for a Member.
As earlier indicated, the age of super annuation prescribed in Section 8 of the Act for the Chair man and Vice Chairman is 65 years and for any other Member, 62 years.
The petitioner 's grievance is that the pay of any other Member of the Tribunal and his age of superannuation should be Rs. 8,000 p.m. and 65 years respectively as in the case of Vice Chairmen, since the Members and Vice Chairmen discharge identical judicial functions.
The question is: Whether the principle of "equal pay for equal work", relied on by the petitioner, is applicable to this situation or there is any hostile discrimination against the Members of the Central Administrative Tribunal, as alleged by the petitioner.
If the petitioner 's contention be correct, then would arise the question of relief which can be granted.
The prayer made in this petition is to direct an amendment in the and the rules framed thereunder, to prescribe the same pay and age of superannua tion for the Members as in the case of the Vice Chairman.
The argument of Shri B.A. Masodkar and Shri G.L. Sanghi in support of the petition is that the Members and the Vice Chairman of the Central Administrative Tribunal belong to the same class since they discharge identical judicial functions and there is no rational nexus of the classifica tion made between them with the object sought to be achieved.
It is urged that the Tribunal is one entity com prising of the Chairman, Vice Chairmen and Members which has been substituted for the High Court in respect of the juris diction conferred on the Tribunal and therefore, there is no justification for discriminating between them in the matter of pay and other conditions of service.
951 In the counter affidavit of the respondent, it has been stated that all the functions of the Vice Chairman and the Members are not the same inasmuch as the Vice Chairman, in addition to filling the casual vacancy in the office of the Chairman, also discharges certain administrative functions entrusted to him by the Chairman while no such administra tive function is discharged by any Member.
It is stated that the office of the Vice Chairman and any other Member cannot, therefore, be treated as the same or in one class.
Shri V.C. Mahajan, learned counsel for the respondent contended that Sampath Kumar 's case (supra) does not lend any support to the petitioner 's contention and in this context the observa tions made therein actually negative the petitioner 's stand.
It was also urged that the relief claimed for a direction to amend the aforesaid Act and the rules framed thereunder cannot be granted, which alone is the relief claimed in the writ petition.
was rightly not disputed by learned counsel for the petitioner that the relief specifically claimed in the petition of a direction to amend the Administrative Tribu nals Act, 1985 and the rules flamed thereunder to equate the Members of the Tribunal with the Vice Chairman in the matter of pay and age of superannuation cannot be granted For this reason, it was urged on behalf of the petitioner that the relief may be suitably moulded to grant the same benefit for the Members of the Tribunal if the allegation of hostile discrimination is accepted.
it is not necessary for us to deal further with this aspect since we have no doubt that the plea of violation of Article 14 of the Constitution, raised by the petitioner, is untenable and must fail.
The sheet anchor of petitioner 's case is the decision of this Court in Sampath Kumar 's case (supra).
We will present ly show that the decision in Sampath Kumar 's case (supra) does not support the petitioner 's claim in this petition.
It is significant to note that the age of superannuation of High Court Judges is 62 years while that of the Chairman and Vice Chairman of the Tribunal is 65 years and of any other Member is 62 years.
No attempt has been made on behalf of the petitioner to justify the fixation of age of superannua tion of the Chairman and the Vice Chairman as 65 years if they are to be equated with the Chief Justice and sitting judges of the High Court who retire at the age of 62 years only.
In respect of the age of superannuation, the Members of the Tribunal are at par with the Chief Justice and the Judges of the High Court.
Obviously, it is for this reason that an attempt was made to claim the equality with the Vice Chairman of the Tribunal who gets Rs.8,000 p.m. as pay like a High Court Judge but retires at the higher age of 65 years.
This disparity itself indicates that 952 the Chairman, Vice Chairmen and Members of the Tribunal are not equated with the Chief Justice and Judges of the High Court for all purposes which, in substance, is the founda tion of the petition.
The contention of Shri D .A. Masodkar, learned counsel for the petitioner, is that the Administrative Tribunal being a substitute for the High Court for adjudicating disputes relating to service matters the Members of the Tribunal should be equated with the High Court Judges for all purposes including their pay and age of superannuation.
He contends that the lower pay and age of superannuation of the Members of the Tribunal is discriminatory and violates Article 14 of the Constitution.
His argument is that the Members should be equated in this behalf with the Vice Chairman whose pay is equal to that of a puisne Judge of the High Court.
However, no attempt was made to justify on this reasoning the higher age of superannuation of the ViceChair man being 65 years against 62 years of a High Court Judge.
Shri G.L. Sanghi supported the petition and contended that the Tribunal being one body, the persons constituting it cannot be bifurcated into separate categories and the pay and age of superannuation of all of them should be the same.
He adds that the Members and the ViceChairman should have the same pay and age of superannuation while the slightly higher pay of the Chairman was justified as in the case of the Chief Justce vis a vis the puisne Judges of the High Courts.
In substance, the contention of Shri Masodkar is for equating the Members of the Tribunal with puisne Judges of the High Courts in the matter of pay on the assumption that the Tribunal is equated with the High Court and with the Vice Chairman of the Tribunal in the matter of age of super annuation on the basis of equal work.
The contention of Shri G.L. Sanghi is slightly different.
He argues that the Tribu nal being one entity there is no reason to treat its Members differently when all of them perform the same judicial function, the only difference being that the Chairman has additional administrative functions to discharge.
Part XIV A of the Constitution of India containing Articles 323 A and 323 B provides for the constitution of administrative and other tribunals for the purpose of adju dication or trial by these tribunals of disputes relating to matters specified therein.
Article 323 A deals with adminis trative tribunals to be constituted for adjudication of disputes with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other specified 953 authority.
The law enacted by.
the Parliament for this purpose may provide for all matters relating to the consti tution and functions of the Administrative Tribunals as well as for exclusion of jurisdiction of all courts, except the jurisdiction of the Supreme Court of India, with respect to the matters required to be adjudicated by the Administrative Tribunal.
It is for this purpose that the has been enacted and Section 28 therein excludes the jurisdiction of all courts except the Supreme Court or any Industrial Tribunal, Labour Court or other authority constituted under the or any other corresponding law for the time being in force in relation to matters which the Administrative Tribu nal is empowered to adjudicate.
The Act also provides for transfer of all pending cases as provided in Section 29 of the Act.
In the first place, the assumption in the argument on behalf of the petitioner that the Tribunal is equated with the High Court is fallacious.
It is not only the service matters required earlier to the adjudicated by the High Court but also those by the subordinate courts which are now to be adjudicated by the Administrative Tribunals.
That apart, Article 323 A itself clearly contemplates that the Administrative Tribunals constituted thereunder are distinct from the High Courts and it is the law enacted by the Par liament providing for establishment of an Administrative Tribunal which is to provide for all matters relating to the jurisdiction, powers, procedure and all supplemental, inci dental and consequential matters relating to the Administra tive Tribunal.
It is, therefore, the law enacted by the Parliament constituting the Administrative Tribunal which has to be first seen for the purpose of ascertaining the real nature and status of the Tribunal and the persons constituting it.
There is no ambiguity in the provisions of the and the exact status and service conditions of the Chairman, Vice Chairman and Members of the Administrative Tribunal together with the qualifications for appointment to these offices have been clearly spelt out in the Act.
This Act provides expressly for the term of office of the Chairman, Vice Chairman and Members in Section 8 and for the salaries and allowances and other terms and conditions of service by Section 10 read with Section 35(2)(c) and the rules framed thereunder.
The Central Administrative Tribunal (Salaries and allowances and Conditions of Service of Chairman, Vice Chairmen and Mem bers) Rules, 1985 have been framed in exercise of the powers conferred by Section 35(2)(c) to provide for the salaries and allowances etc.
The scheme of the Act and the rules framed thereunder is quite clear and their enactment is in the manner laid down in Article 324 A of the Constitution.
954 The term of office and the age of superannuation, pay and allowances and other service conditions of the Chairman, Vice Chairman and Members are specifically provided in this manner and from the scheme it is evident that the Chairman, Vice Chairman and Members are not treated as one class for this purpose by the very enactment which provides for the establishment of the Tribunals.
Such elaborate provisions were unnecessary if the Tribunal was equated with the High Courts and its Members with High Court Judges.
Similarly, a higher age of superannuation could not have been prescribed for the Chairman and Vice Chairman of the Tribunal.
Article 323 A of the Constitution itself envisages different provi sions in this behalf and not the same as.
that of the High Courts which is the assumption made in the petitioner 's contention.
In fact, the provisions of the Act indicate that there is no intention of equating the Chairman, Vice Chair man and Members of the Tribunal with the Chief Justice and Judges of the High Courts for purposes other than those expressly provided in respect of jurisdiction, power etc.
Section 17 of the Act is a significant indication.
By Sec tion 17, the Tribunal has been given the power to punish for contempt of itself and it is provided that for this purpose the Tribunal shall have, and exercise, the same jurisdic tion, powers and authority as the High Court and the refer ences in the , tO a High Court shall be construed as including a reference to such Tribu nal.
It is obvious that the need for enacting such a provi sion arose only because in the absence of such a provision conferring on the Tribunal the jurisdiction and power of a High Court for the purpose of the provisions of the , 197 1, the Tribunal would not have the same jurisdiction or power while adjudicating those very matters which earlier were to be adjudicated by the High Court.
Similarly, Section 30 of the Act provides that all proceed ings before a Tribunal shall be deemed to be judicial pro ceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code, 1860.
This provision also is unneces sary if the petitioner is right in contending that the Tribunal is equated with the High Court for all purposes and must be treated as a deemed High Court with all the, logical consequences.
It is, therefore, not possible for the Administrative Tribunal to shed off or abandon its heritage and substitute its genes with those of its choice of a different heritage.
In our opinion, this alone is sufficient to indicate that the petitioner 's assumption is fallacious and his attempt to be treated as a deemed High Court Judge cannot be accepted.
Apart from the obvious fallacy already indicated, the peti tioner 's claim, if accepted, would result in appointment of some 955 deemed High Court Judges contrary to the express provision made in the Constitution for appointment of High Court Judges.
During the course of heating, it was pointed out that mere substitution of a different forum for adjudication of a dispute does not result in conferring on the new forum the status of the substituted forum for purposes other than the jurisdiction and power to adjudicate that dispute unless their status be otherwise equal.
To illustrate, Section 115 CPC by amendment in some states empowers the District Courts instead of the High Court to decide revisions thereunder, but that does not equate the District Court with the High Court.
No attempt was made on behalf of the petitioner to answer this.
The slightly modified argument of Shri G .L.
Sanghi for achieving the same purpose also does not bear close scruti ny.
The , itself makes a distinction between the Chairman, Vice Chairman and Members.
The age of superannuation of the Chairman and Vice Chairman is 65 years while that of the Members is 62 years.
Similar ly, there is difference in their salaries.
They are not treated to be in one class for this purpose by the Act itself.
It cannot, therefore, be said that all of them constitute one class since the Tribunal is one.
The case of the Chairman was distinguished by learned counsel on the basis that his position was akin to that of the Chief Jus tice of the High Court.
However, the age of superannuation of the Chief Justice and the puisne Judges of the High Court is the same which pattern is not maintained in the Act.
A provision is made in the Act for discharge of certain admin istrative functions of the Chairman by the Vice Chairman and not by the Members and similarly, there is provision only for the Vice Chairman to fill a casual vacancy.
The founda tion of initial equality on which the argument of discrimi nation is based, is non existent.
The parent statute itself shows that they were not born equals.
There is also no merit in the casual argument that there is a proposal for higher pay and age of superannuation for Members of Tribunals for other matters constituted in ac cordance with Article 323 B of the Constitution.
The basic fact to be remembered is that Articles 323 A and 323 B themselves require the law constituting these Tribunals to provide for the pay and other conditions of service of its Members and, therefore, the same would be governed in the case of each Tribunal by the provisions of the statute giving birth to the Tribunal.
These statutes being differ ent, the provisions therein in this behalf can also be different which has been left to the legislative wisdom to decide.
956 Considerable emphasis was laid on behalf of the peti tioner on S.P. Sam path Kumar 's case (supra) to contend that the Tribunals constituted under Article 323 A have been equated with the High Courts.
It is sufficient to say that in Sam path Kumar (supra), the question before us in the present petition did not arise for consideration and the observation therin cannot be torn out of context.
On the contrary, certain observations in para 22 of that judgment indicate that the retiring age of 62 years or 65 years, for the Members, Chairman and Vice Chairman was treated to be in accord with the pattern of the enactment on the basis that the Members and Chairman or Vice Chairman were in different categories.
Equation of the Tribunal with the High Court therein was only as the forum for adjudication of disputes relating to service matters and not for all purposes such as the one arising for decision in the present case.
We are unable to accept that the decision of this Court in S.P. Sampath Kumar (supra) supports the contention before us in this petition.
As a result of the aforesaid discussion, we have no hesitation in holding that the equality claimed by the Members of the Administrative Tribunal with the Judges of the High Courts or even the Vice Chairman of the Tribunal in the matter of pay and age of superannuation does not exist being contrary to the pattern and scheme of the parent statute establishing the Tribunal and, therefore, the very foundation for the argument of discrimination being non existent, the petition must fail.
Consequently, the petition is dismissed.
In the circum stances of the case, the parties will bear their own costs.
R.S.S. Petition dismissed.

summary/full:
The petitioner is a Judicial Member of the Central Administrative Tribunal.
In this writ petition he claims equality of the Members of the Administrative Tribunal with the Judges of the High Court, or even the Vice Chairman of the Tribunal, in the matter of pay, and age of superannua tion.
The Central Administrative Tribunal (Salaries and Allow ances and Conditions of Service of Chairman, Vice Chairman and Members) Rules, 1985 were framed in exercise of the powers conferred by section 35(2)(c) of the .
Rule 3 of the Rules specifies Rs.8,000 p.m. as the pay of the Vice Chairman and the pay scale of Rs.7300 100 7600 p.m. for a Member.
Rule 8 prescribes the age of superannuation for the Chairman and Vice Chairman at 65, and for any other Member 62 years.
It was contended on behalf of the petitioner that an arbitrary distinction had been made in the conditions of service, particularly in regard to pay and age of superannu ation, between the Vice Chairman and the Members; that the judicial functions discharged by the Vice Chairman and the Members of the Central Administrative Tribunal were the same and, therefore, the principle of "equal pay for equal work" applied, and on that basis Article 14 had been violated; and that the Administrative Tribunal being a substitute for the High Court for adjudicating disputes relating to service matters, the Members of the Tribunal should be equated with the High Court Judges for all purposes 947 including their pay and age of Superannuation.
S.P. Sampath Kumar vs Union of India, ; , relied upon.
On behalf of the respondent it was contended that all the functions of the Vice Chairman and the Members were not the same in as much as the Vice Chairman, in addition to filling the casual vacancy in the office of the Chairman, also discharged certain administrative functions entrusted to him by the Chairman.
Dismissing the writ petition, this Court, HELD: (1) It is the law enacted by Parliament constitut ing the Administrative Tribunal which has to be first seen for the purpose of ascertaining the real nature and status of the Tribunal and the persons constituting it.
[1953 E] (2) It is not possible for the Administrative Tribunal to shed off or abandon its heritage and substitute its genes with those of its choice of a different heritage.
[956G] (3) There is no ambiguity in the provisions of the , and the exact status and service conditions of the Chairman, Vice Chairman and Mem bers of the Administrative Tribunal together with the quali fications for appointment to these offices have been clearly spelt out in the Act.
[953F] (4) From the scheme of the Act and the rules flamed thereunder it is quite clear that their enactment is in the manner laid down in Article 323 A of the Constitution.
From the scheme it is evident that the Chairman, Vice Chairman and Members are not treated as one class for this purpose by the very enactment which provides for the establishment of the Tribunals.
Such elaborate provisions were unnecessary if the Tribunal was to be equated with the High Courts and its members with High Court Judges.
1953D; 954C] (5) Article 323 A and 323 B themselves require the law constituting these Tribunals to provide for the pay and other conditions of service of its Members and, therefore, the same would he governed in the case of each Tribunal by the provisions of the statute giving birth to the Tribunal.
These statutes being different, the provisions therein in this behalf can also be different, which has been left to the legislative wisdom to decide.
[955G H] 948 (6) Equation of the Tribunal with the High Court was only as the forum for adjudication of disputes relating to service matters and not for all purposes such as the one arising for decision in the present case.
[956C] S.P. Sampath Kumar vs Union of India, ; , distinguished & explained.
(7) The foundation of initial equality on which the argument of discrimination is based, is non existent.
The parent statute itself shows that they were not born equals.
[956E]


judgement:
vil Appeal No. 2080 (L) of 1977.
Appeal by Certificate from the Judgment and Order dated 20.12.74 of the Calcutta High Court in Appeal No. 104 of 1972.
R.N. Nath and Rathin Das for the Appellant S.P. Khera, M. Quamaruddin and Mrs. M. Quamaruddin for the Respondents.
G.S. Chatterjee for the State.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
This appeal, by certificate granted under Article 133(1)(a) of the Constitution, is directed against judgment and order of the High Court of Judicature at Calcutta dated December 20, 1974, in Appeal No. 104 of 1972.
Karnani Properties Ltd., appellant herein, is a company incorporated under the Companies Act, 1913.
It owns several mansion houses known as Karnani Mansions at Park Street, Calcutta.
There are about 300 flats in these mansions which have been let out to tenants.
The appellant provides various facilities to its tenants in these flats, e.g. free supply of electricity, washing and cleaning of floors and lavato ries, lift service, electric repairs and replacing, sanitary repairs and replacing, etc., and for that purpose the appel lant employ over 50 persons, namely sweepers, plumbers, malis, lift man, durwans, pumpmen, electric and other mis tries, bill collectors and bearers, etc., in connection with these properties.
A dispute arose between the employees of the appellant represented by Barabazar Zamandar Sangh (hereinafter referred to as 'the union ') and the appellant with regard to wages, scales of pay, dearness allowance and gratuity.
The Government of West Bengal, by order dated July 29, 1967, referred for adjudication to the 6th Industrial Tribunal, West Bengal, the industrial dispute relating to: (a) Fixation of Grades and Scales of pay of the different categories of workmen; (b) Dearness Allowance; and (c) Gratuity.
937 The appellant raised preliminary objections with regard to the validity of the reference before the Industrial Tribunal on the ground that the alleged dispute is not an industrial dispute and that the reference is barred by Section 19 of the (hereinafter referred to as 'the Act ') for the reason that in 1960 there was an Award on the basis of settlement made with the union, and the said Award has not been terminated by either of the parties and is still binding on the parties.
The Industrial Tribunal, by its order dated August 24, 1968, overruled the said preliminary objections raised by the appellant and thereafter the Tribunal gave the Award dated March 3, 1969.
The Industrial Tribunal expressed its inability to fix any grades and scales of pay of the workmen for the reason that the evidence adduced by the Union on this issue was scrappy, none too convincing and not very much acceptable.
As regards dearness allowance the Industrial Tribunal held that since November, 1964 the price index of working class in Calcutta has considerably gone up from 460 to 750 points (as was in October, 1968), i.e. roughly by 300 points.
The Industrial Tribunal awarded enhanced DA at the rate of Rs.60 per month (Rs.20 per 100 points) to the sweeper, bearer, helper, mali, mazdoor, lift man, head sweeper, durwan, pumpman, and as sistant electric mistry.
DA at the , 'ate of Rs.54 per month (Rs. 18 per 100 points) was awarded to the plumber, raj mistry, head durwan, electric mistry and driver and bill collector.
It was also directed that the said rates of DA would remain in force as long as the price index will remain between 600 to 800 points and if the price index goes up beyond 800 points the rate of DA will be revised according to the rates mentioned and if it goes below 600 points it also may be revised accordingly.
With regard to gratuity the Industrial Tribunal pointed out that under the existing scheme gratuity is payable to every workmen after completion of three years continued, faithful and satisfactory service at the rate of 10 days consolidated salary for every com pleted year of service since the date of appointment.
The Industrial Tribunal held that three years ' period was too short to make a workman entitled to gratuity and that "satisfactory" and "faithful" are vague terms.
The Industri al Tribunal framed a scheme of gratuity whereunder after completion of six years of continuous service with the appellant every workmen on retirement or on death will get an amount of gratuity at the rate of 10 days ' consolidated salary for every completed year of service since the date of appointment and a workman who resigns voluntarily would also be entitled to get the gratuity at the same rate provided he completed 10 years of continuous service.
The Industrial Tribunal also directed that if the termination of service is the result of misconduct which caused financial loss to the employer 938 that loss would first be compensated from the gratuity payable to employee and the balance, if any, should be paid to him.
It was also directed that the services of the work men prior to 1950 would not be taken into consideration for the purpose of payment of gratuity.
The appellant filed a writ petition in the High Court under Article 226 of the Constitution wherein the. order dated August 24, 1968 and the Award dated March 7, 1969 given by the Industrial Tribunal were challenged.
The said writ petition was heard by a learned single Judge, who by his judgment dated March 17 & 20, 1972, dismissed the said writ petition.
Before the learned single Judge it was urged that the Award made by the Industrial Tribunal was without jurisdiction for the reason that the appellant does not carry on an "industry" as defined in the Act and that the dispute between the appellant and the workmen cannot come within the ambit of industrial dispute, and also.
for the reason that there was a previous Award dated March 3, 1960 which has not been terminated and was still subsisting and in view of the said Award the present reference was invalid and further that no dispute was raised between the workmen and the appellant prior to the reference before the Indus trial Tribunal and as such the Tribunal has no jurisdiction to deal with the matter.
The learned single Judge rejected all these objections.
He held that in view of the nature of the activity carried on the appellant does carry on an industry within the meaning of the Act and the dispute between the appellant and its workmen come within the ambit of the Act.
As regards the Award dated March 3, 1960 the learned single Judge found that the workmen concerned had given notice to terminate the previous Award and as such the existence of previous Award and as such the existence of previous Award would not preclude a fresh reference.
The learned single Judge observed that no specific plea was raised by the appellant before the Industrial Tribunal challenging the order and the reference on the ground that there was no such dispute prior to the reference between the workmen and the appellant about the questions referred to in the order of reference and that whether there was any demand or not is a question of fact.
the learned single Judge, however, held that from the evidence it is clear that the workmen concerned had demanded before the order of reference in their charter of demands dearness allowance and provident fund and gratuity and as such there was a dispute between the workmen concerned and the employers before the order of reference was made.
The Award was challenged on merits before the learned single Judge on the ground that the Industrial Tribunal did not consider the appellant 's capaci ty to pay in granting dearness allowance to the workmen concerned.
The learned single Judge 939 rejected the said contention on the view that reading the Award as a whole it could not be contended that the Tribunal did not take into consideration either the capacity to pay or the leval of the cost of living.
The appellant filed an appeal against the judgment of the learned single Judge which was dismissed by a Division Bench of the High Court by its judgment and order dated December 20, 1974.
The learned Judges agreed with the deci sion of the learned single Judge that the appellant is carrying on an industry under Section 2(j) of the Act.
Before the Division Bench it was contended on behalf of the appellant that the earlier Award was made on the basis of a settlement between the two parties and that since the said Award was in a nature of settlement it could only be termi nated in accordance with the provisions of Section 19(2) of the Act relating to termination of a settlement.
The learned Judges of the Division Bench held that the said contention was not raised by the appellant before the Tribunal and also before the learned single Judge and it could not be raised for the first time at the stage of the appeal and that it cannot be considered to be a pure question of law because for a settlement under Section 2(p) of the Act the necessary requirements of settlement as laid down in the statute and the rules have to be satisfied and whether the necessary recruitments have been satisfied or not will involve inves tigation into facts.
The learned Judges were, however, of the view that even if the said plea was allowed to be raised it could not be accepted inasmuch as the materials on record do not establish that the requirement of "settlement" as defined in Section 2(p) of the Act are satisfied in respect of the earlier Award.
It was held that an Award does not necessarily cease to be an Award merely because the same was made on the basis of a settlement arrived at between the parties and that the earlier Award was an "Award" within the meaning of Section 2(b) of the Act and was not a settlement as contemplated by Section 2(p) of the Act.
With regard to the termination of the earlier Award, the learned Judges have held that in the facts and circumstances of the case it had been validly terminated in accordance with Section 19(6) as well as Section 19(2) of the Act.
Before the Division Bench it was urged on behalf of the appellant that the Tribunal has not considered the financial capacity of the appellant while making the Award with regard to dearness allowance and reliance was placed on certain documents which were filed before the Division Bench.
The learned Judges held that in considering the findings arrived at by the Tribunal the Court should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the 940 Tribunal should not be allowed to be placed before the Court in a writ petition for determining whether the findings of the Tribunal are justified or not and that in the instant case no proper grounds have been made out for not producing the materials which were then available at the time of the hearing before the Tribunal and why the said documents could not be produced even before the learned single Judge.
The learned Judges further held that even if the said documents are taken into consideration the same would be of no partic ular assistance to the appellant inasmuch as the said docu ments consist mainly of balance sheets and assessment or ders, and that the legal position is settled that while computing gross profits for the purpose of revising wage structure and dearness allowance the provision made for taxation, depreciation and development rebate cannot be deducted and the provisions of the Companies Act contained in Sections 205 and 211 and the principles of accountancy involved in preparation of profit and loss accounts have no relevance or bearing while considering the revision of wages and dearness allowance.
The learned Judges have held that on the materials on record the Tribunal was justified in making the Award and that the materials on record before the Tribu nal establish that the amount ordered by the Tribunal was not beyond the financial capacity of the appellant.
Aggrieved by the decision of the Division Bench of the High Court the appellant has flied this appeal after obtain ing leave to appeal from the High Court under Article 133(1)(a) of the Constitution.
Shri R.N. Nath, the learned counsel for the appellant, has submitted that the High Court was in error in holding that the appellant is an industry under Section 2(j) of the Act.
Shri Nath has submitted that in arriving at the said conclusion the learned Judges of the Division Bench of the High Court have relied upon the decision of this Court in Management of Safder Jung Hospital vs Kuldip Singh Sethi, [ ; which decision was overruled by this Court in Bangalore Water Supply & Sewerage Board vs R. Rajappa and Others, ; The submission of Shri Nath is that in accordance with the principles laid down in Bangalore Water Supply & Sewerage Board Case, (supra) the appellant cannot be taken to be carrying on an "industry" under Section 2(j) of the Act.
In our opinion there is no substance in this contention.
It is no doubt true that the learned Judges of the Division Bench of the High Court have placed reliance on the decision of this Court in the Safdar Jung Hospital Case, (Supra) for holding that the appellant is carrying on an industry under Section 2(j) of the Act and the decision in Safdar Jung Hospital case, (supra) has 941 been overruled by a larger Bench of this Court in Bangalore Water Supply & Sewerage case, (supra).
But this does not mean that the view of the High Court that the appellant is carrying on an industry under Section 2(j) of the Act is erroneous.
In Safdar Jung Hospital case, (supra), a six member Bench of this Court had overruled the earlier deci sion in State of Bombay vs Hospital Mazdoor Sabha, ; and gave a restricted interpretation to the definition of "industry" contained in Section 2(j) of the Act.
Bangalore Water Supply & Sewerage Board, case (decided by a seven member Bench of this Court) by overruling the decision in Safdar Jung Hospital case, has restored the Hospital Mazdoor Sabha case.
In other words, the effect of decision on Bangalore Water Supply & Sewerage Board case, is that the expression "industry" as defined in Section 2(j) has to be given the meaning assigned to it by this Court in the earlier decisions in D.N. Banerjee vs P.R. Mukherjee, ; , Corporation of the of Nagpur vs Its employees, [ ; and the Hospital Mazdoor Sabha case Krishna Iyer, J., who delivered the main judgment in Bangalore Water Supply & Sewerage Board case, has summed up the principles which are decisive, positively and nega tively, of the identity of "industry" under the Act.
The first principle formulated by the learned Judge is as under: "I, Industry, as defined in Section 2(j) and explained in Banerjee has a wide import: (a) Where (i) systematic activity (ii) organised by cooper ation between employer and employee, (the direct) and sub stantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an industry in that enterprise.
(b) Absence of profit motive or gainful objective is irrele vant, be the venture in the public joint or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer employee relations.
(d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the under taking.
" 942 If the said principles are applied to the facts of the present case and there can be no doubt that the activity carried on by the appellant satisfies the requirements of the definition of "industry" contained in Section 2(j) of the Act.
In this regard, it may be mentioned that the learned Judges of the Division Bench of the High Court have found as under: "(i) The Memorandum of Association of the appellant company indicate that the principal object for which the appellant company was incorporated is to acquire by purchase, trans fer, assignment or otherwise lands, buildings and landed properties of all description and in particular to acquire from the Karnani Industrial Bank Ltd., the immovable proper ties now belonging to the said Bank and to improve, manage and develop the properties and to let out the same on lease or otherwise dispose of the same.
(ii) The principal business of the company is to deal with the real property and it is a real estate company.
(iii) The income which the appellant derives is not from mere letting out the properties to the tenants and that the tenants pay not only for mere occupation of the property but also for enjoyment of the various services which are ren dered by the appellant to the tenants and to which services the tenants are entitled as a matter of right for the occu pation of the premises.
(iv) The services which are rendered to the tenants and about which there does not appear to be any dispute are: (a) elaborate arrangements for supply of water; (b) free supply of electricity; (c) washing and cleaning of floors and lavatories; (d) lift services; (e) electric repairs and replacing; and (f) sanitary repairs and replacing etc.
943 (v) For offering these services to the tenants, the appel lant has employed a number of workmen and these services which undoubtedly confer material benefits on the tenants and constitute material services, are rendered by the em ployees.
(vi) The employees of the appellant company are engaged in their respective calling or employment to do their work in rendering the services.
(vii) Activity carried on by the appellant company is un doubtedly not casual and is distinctly systematic.
(viii) The work for which labour of workmen is required is clearly productive of the services to which the tenants are entitled and which also form a part of the consideration for the payments made by the tenants.
(ix) The appellant carries on its business with a view to profits and it makes profits and declares dividends out of the profits earned.
From the aforesaid findings recorded by the High Court, with which we find no reason to disagree, it is evident that the activity carried on by the appellant falls within the ambit of the expression "industry" defined in Section 2(j) of the Act as construed by this Court in Bangalore Water Supply & Sewerage Board case (supra).
The Award of the Industrial Tribunal cannot, therefore, be assailed on the basis that the appellant is not carrying on an industry under the Act.
Shri Nath has next contended that the Industrial Tribu nal was not competent to make the Award as the earlier Award dated March 3, 1960, had not been validly terminated.
He has urged that the earlier Award was in the nature of a settle ment under Section 2(p) of the Act and it could be terminat ed only in accordance with Section 19(2) of the Act.
Shri Nath has pointed out that for terminating a settlement under Section 19(2) a written notice is necessary whereas for termination of an Award under Section 19(6) of the Act a written notice is not required and a notice is sufficient.
In our opinion this contention does not require consid eration in view of the finding recorded by the learned Judges of Division Bench of the High Court that the letter dated November 24, 1966 was a notice 944 under Section 19(6) as well as under Section 19(2) of the Act.
It has been found that the said letter of the union which was addressed to the Labour Commissioner was sent to the appellant company and that in the said letter there is a clear intimation of the intention of the employees to termi nate the Award and from the letter of the appellant dated February 13, 1967 it appears that the appellant had become aware of the intention of the union to terminate the Award and that the order of reference was made on July 29, 1967, long after the expiry of the period of two months.
It is not the requirement of Section 19(2) of the Act that there should be a formal notice terminating a settlement and notice can be inferred from the correspondence between the parties (See: Indian Link Chain Manufacturers Ltd. vs Their Workmen, ; In the aforesaid facts and circumstances the High Court was justified in holding that the Award dated March 3, 1960 had been validly terminated before the passing of the order of reference.
Shri Nath has urged that there has been non compliance of the provisions of Section 19(7) of the Act which lays down that no notice given under sub section (2) or sub sec tion (6) shall have effect unless it is given by a party representing the majority of the persons bound by the set tlement or Award as the case may be.
This question has been raised by the appellant for the first in this Court.
It involves an inquiry into questions of fact which cannot be made at this stage.
The same, therefore, cannot be allowed to be agitated.
Shri Nath has lastly urged that the Industrial Tribunal was in error in making the Award in relation to Dearness Allowance without examining the capacity of the appellant to pay the additional amount and that the High Court should have remanded the matter to the Tribunal for considering this issue in the light of the documents which were submit ted by the appellant before the High Court.
We find no substance in this contention.
The High Court has rightly held that in considering the finding arrived at by the Tribunal the High Court while exercising its jurisdiction under Article 226 of the Constitution should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribunal should not normally be allowed to be placed before the Court.
The appellant has not been able to show why the said documents were not produced before the Tribunal.
It is not the case of the appellant that the Tribunal had precluded the appellant from producing these documents.
In these circumstances we find no justification for accepting the plea of the learned counsel for the appel lant for 945 reconsideration of the Award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court.
The appeal is, therefore, dismissed with costs.
During the pendency of this appeal, the appellant has made a deposit before the Tribunal.
The respondent .union will be entitled to withdraw the said amount along with the interest that has accrued on it.
T.N.A. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant, a real estate company, was engaged in the business of letting out its property on lease, Besides it was also rendering various services to its tenants such as electricity and water supply, washing and cleaning, lift services, electrical and sanitary repairs on payment basis.
For rendering these services the appellant company employed a number of workmen.
A dispute arose between the employees and the appellant company with regard to wages, scales of pay, dearness allowance and gratuity.
The State Government re ferred the disputes to Industrial Tribunal for adjudication.
The appellant company contested the reference before the Tribunal by raising a preliminary objection that the alleged dispute was not an industrial dispute and that the reference was barred by Section 19 of the since there was an earlier binding award, based on settlement with the Union, which was not terminated by either parties.
934 By an order dated August 24, 1968 the Tribunal overruled the preliminary objection and gave the award dated March 3. 1969 enhancing the dearness allowance of the employees.
The Tribunal also framed a revised gratuity scheme but did not fix any grades and pay scales of workmen for want of con vincing evidence.
The appellant company filed a writ petition in the High Court challenging the Tribunal 's order dated August 24, 1968 as well as the Award dated March 7, 1969 contending: (i) that the Award was without jurisdiction because the appel lant company was not carrying on 'industry ' and the alleged dispute was not an 'Industrial Dispute ' and that the previ ous Award was not terminated and was still subsisting; (ii) that no dispute was raised between the workmen and the appellant prior to the reference before the Tribunal; and (iii) that the Tribunal did not consider the appellant 's capacity to pay dearness allowance to the workmen.
A single judge of the High Court dismissed the writ petition by rejecting all the contentions.
The appellant filed an appeal against the judgment of the single judge before a Division Bench of the High Court which was also dismissed.
Against the decision of the Division Bench of the High Court the appellant company filed an appeal to this Court, contending: (i) that the High Court was in error in holding that the appellant was an 'industry ' under Section 2(j) of the Act; (ii) that the Tribunal was not competent to make the Award since the earlier Award, which was in the nature of a settlement under Section 2(p), was not terminated in accordance with section 19(2) by giving a formal written notice; (iii) that there was non compliance with the provi sions of Section 19(7) of the Act; and (iv) that the Indus trial Tribunal was in error in making the Award in relation to Dearness Allowance without examining the capacity to pay the additional amount and that the High Court should have remanded the matter to the Tribunal for considering this issue in the light of the documents which were submitted by the appellant before the High Court.
Dismissing appeal, this Court, HELD: 1.
The activity carried on by the appellant compa ny falls within the ambit of the expression "industry" defined in Section 2(j) of the .
The Award of the Industrial Tribunal cannot, there fore, be assailed on the basis that the appellant is 935 not carrying on an 'industry ' under the Act.
[943E] Bangalore Water Supply & Swerage Board v .R. Rajappa and Ors., ; , applied.
Management of Safdar jung Hospital vs Kuldip Singh Sethi, ; ; State of Bombay vs Hospital Mazdoor Sabha, ; ; D.N. Banerjee vs P.R. Mukherjee, ; and Corporation of the City of Nagpur vs Its employees; , , referred to. 2.
It is not the requirement of Section 19(2) of the that there should be a formal notice terminating a settlement, and notice can be inferred from the correspondence between the parties.
[944B] Indian Link Chain Manufacturers Ltd. vs Their Workmen, [1972] I SCR 790, applied.
2.1 In view of the finding of the Division bench that the letter of employees Union dated November 24, 1966 was a notice under section 19(6) as well as section 19(2) of the and that the said letter contained a clear intimation of the intention of the employ ees to terminate the Award, the High Court was justified in holding that the earlier award had been validly terminated before the passing of the order of reference.
[943H; 944A B ] 3.
The High Court was right in taking the view that while exercising its jurisdiction under Article 226 of the Constitution the High Court should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribu nal should not normally be allowed to be placed before the Court.
[944F G] 3.1 In the instant case the appellant has not been able to show why the documents relied on by it were not produced before the Tribunal.
Therefore there is no justification for accepting the plea of the appellant for reconsideration of the Award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before High Court.
[944G H] 4.
A question raised for the first time in the Supreme Court involving an inquiry into questions of fact cannot be allowed to be agitated.
[944E] 936


judgement:
ition (Civil) Nos.
888 892 of 1987, 757 of 1988 and 316 of 1989.
(Under Article 32 of the Constitution of India).
7 H.S. Gururaja Rao, Mrs. C. Markandeya and section Markandeya for the Petitioners.
Krishnamurthy Iyer, P. Parthasarthi and T.V.S.N. Chari for the Respondent.
The Judgment of the Court was delivered by KASLIWAL, J.
The above mentioned bunch of writ petitions under Article 32 of the Constitution of India have been filed by the retired Government servants of the Government of Andhra Pradesh having retired in between 1st April, 1978 and 28th October, 1979.
The case of the petitioners is that in pursuance to persistent demands made by the State Govern ment Employees to revise their pay scales the Andhra Pradesh Government by Government Order dated November 3, 1977 ap pointed Shri A. Krishnaswamy, I.A.S. (Retd.) as the Pay Revision Commissioner.
By another Government Order dated January 28, 1978 the Pay Revision Commissioner was also directed to review the existing retirement benefits inter alia to all employees of the State Government and to examine the question of extension of retirement benefits and make suitable recommendations in that regard.
The Pay Revision Commissioner submitted a report comprised of five volumes.
The Commission recommended that the date from which the revised scales of pay would be given effect to should be April 1, 1978.
In Paragraphs 9.42 to 9.45 of its report the Pay Revision Commissioner specifically recommended that the age of retirement should be increased from 55 years to 58 years.
It has been alleged that so far as the recommenda tions of the Commission in regard to the increased pay scales are concerned, the same were accepted and implemented by the State Government w.e.f.
April 1, 1978.
But so far as the recommendation in regard to increase in the age of superannuation from 55 years to 58 years, the same was implemented only w.e.f. October 29, 1979 through G.O.M.S. No. 283 Finance and Planning.
It has also been alleged by the petitioners that the State Government issued G.O. (P) No. 88 Finance and Planning dated March 26, 1980 whereby the Revised Pension Rules, 1980 were promulgated.
The above rules divided the Government servants for the purpose of pension into two parts, Part I applying to all Government servants who were in service on 29th October, 1979 and Part II applying to such of the Government servants who retired/died in between 1st April, 1978 and 28th October, 1979 (both dates inclusive).
The contention of the petitioners is that by the above Rules two categories of pensioners 8 were created with different rates of pension which is com pletely arbitrary and in violation of the law declared by this Hon 'ble Court in D.S. Nakara & Others vs Union of India, ; The petitioners have, therefore, prayed that pension rules Part II which has been made ap plicable to Government servants having retired between 1st April, 1978 and 28th October, 1979 be quashed and it may be directed that they would also be governed by Part I of the Rules which is applicable to those Government servants who were in service on 29th October, 1979.
The counter affidavit has been filed on behalf of the State of Andhra Pradesh.
In the counter affidavit it has been stated that Pay Revision Commissioner was appointed to review the structure of different scales of Pay, dearness allowance and other compensatory allowance of all categories of employees of the State Government, Local Bodies and Aided Institutions as well as work charge establishments.
An additional term of reference was added for reviewing the existing retirement benefit of all categories.
After care fully considering all the relevant factors the Government implemented the recommendations relating to revision of scales of pay w.e.f.
1st April, 1978.
As regards the age of superannuation, the Government of Andhra Pradesh increased the age of superannuation to 58 years w.e.f. October 29, 1979.
This increase in the age of superannuation could not be implemented retrospectively as it would have led to a lot of difficulties, but to compensate those who retired after April 1, 1978 and before October 29, 1979 the Government gave them benefits as under: (1) The pension formula was increased from 33/80 to 30/60 for all those who retired between 1.4.1978 and 28.10.1979.
This increase was specifically given as they would not have otherwise been entitled to the revised pension formula of 33/66 which had been applied only to such Government serv ants who retired after 29.10.1979.
(2) Formula for calculation of gratuity was increased to 1/3rd of emoluments for each completed six months period of qualifying service subject to a maximum of 20 months emolu ments and limited to Rs.30,000.
Earlier the formula was 1/4th of pay for every six months service subject to a maximum of 16 1/2 times and emoluments limited to Rs.30,000.
(3) The Family pension was increased to 30% of the last drawn pay without any maximum limit.
Earlier the rates of Family 9 pension were different for different ranges of pay and the minimum was Rs.60 and maximum Rs.250.
It was further submitted in the counter affidavit that the distinction between the pensioners in Part I and II is based on the date of retirement and is clearly connected with the age of superannuation which was raised from 55 years to 58 years.
It is not correct to say that the Govern ment had arbitrarily divided the pensioners into two groups.
As the date of superannuation was enhanced to 58 years on 29.10.1979 it was necessary to draw a line between those who retired earlier to that date and those who retired subse quent to 29.10.1979.
It was pointed out that the pension formula would be 30/60 for those who retired between 1.4.1978 and 28.10.1979 and their pension worked out on the basis of 30/60 of the average emoluments and in respect of those who retired on or after 29.10.1979, it would be worked out as 33/66.
Thus both the rules guarantee 50% of pension irrespective of date of retirement.
It was also pointed out in the counter affidavit that a writ petition (civil) No. 12605/85 was filed by the Andhra Pradesh State Government Retired Officers Association and Others vs The State of Andhra Pradesh and Others on identical grounds and the same was dismissed by this Hon 'ble Court by an order dated 2.3.1987.
In the above case it was held that "In view of the averments contained in paragraph 2(d) and 3 of the counter affidavit, it is quite clear that the State Government was fully alive to improve the pensionary benefit of those who had already retired prior to October 29, 1979 and accordingly enhanced the rates of pension.
We are satisfied that there is a discernible basis for differential rates of pension and it cannot be said that such differential rates have no reasonable nexus to the object sought to be achieved or that they offend Article 14 of the Constitution.
The Writ Petition is accord ingly dismissed".
We have heard the arguments advanced by Learned Counsel for both the parties and have thoroughly perused the records and the Andhra Pradesh Revised Pension Rules, 1980.
We are fully convinced that the claim of the petitioners is based on a complete misconception of the Rules.
A perusal of the Rules clearly goes to show that Part I of the Rules was no doubt made applicable to all Government servants who would retire on or after 29.10.1979 while Part II was made ap plicable to such Government servants who were holding pen sionable posts on 31st March, 1978 and who retired between 1st April, 1978 and 28th October, 1979 and this distinction was necessary in view of the fact 10 that the age of superannuation for retirement was increased from 55 years to 58 years w.e.f.
29th October, 1979.
Howev er, all the benefits have been granted to the pensioners like the petitioners who had retired between 1.4.1978 and 29.10.1979 in the amount of pension, retirement gratuity and family pension as granted to the Government servants falling under Part I. So far as the amount of pension is concerned, the formula of completed six monthly periods of qualifying service was worked out as 30/60 of average emoluments which was equal to 50% of the pay.
On account of the fact that the Government servants falling in Part I and retiring at the superannuation age of 58 years the above formula was calcu lated at 33/66 which was also 50% of the average emoluments.
Similarly in the case of retirement gratuity and family pension no distinction has been made in the case of the two categories of pensioners.
This clearly goes to show that neither there is any discrimination nor any disadvantage to the pensioners falling in the category of petitioners and the formula working out the amount of pension is based on a rational principle and it cannot be said that such differen tial rates have no reasonable nexus to the object sought to be achieved or the same are in any manner violative of article 14 of the Constitution.
In view of the circumstances mentioned above the case of D.S. Nakara & Ors.
vs Union of India, (supra) is not at all applicable in the facts and circumstances of this case and renders no assistance to the petitioners.
In the result we find no force in these writ petitions and the same are dismissed with no order as to costs.
G.N. Petitions dismissed.

summary/full:
The Andhra Pradesh State Government appointed a Pay Revision Commissioner in 1977, for revision of pay scales in respect of its employees.
The Commissioner was also directed to review the then existing retirement benefits and to make suitable recommendations regarding extension of retirement benefits.
He submitted his report and recommended that the revised scales be made effective from 1.4.78.
He also recom mended that the retirement age should be increased from 55 years to 58 years.
Accepting the report, the State Government implemented the recommendations regarding pay scales effective from 1.4.78.
The recommendation regarding increase in retirement age was implemented with effect from 29.10.1979.
The State Government promulgated the Revised Pension Rules, 1980, which made a distinction between Government servants who were in service as on 29th October, 1979 (Part I) and those Government servants who retired/died in between 1.4.78 and 28.10.79.
(Part II).
By these Writ Petitions, the petitioners challenged the Revised Pension Rules, 1980 on the ground that the said Rules created two different categories of pensioners with different rates of pension which was completely arbitrary and in violation of this Court 's decision in D.S. Nakara & Ors.
vs Union of India, ; The Respondent State contended that the increase In the age of superannuation could not be implemented retrospec tively as it would have led to a lot of difficulties, but to compensate those who retired after April 1, 1978 and before October 29, 1979 the Government gave them certain benefits.
It was further contended that since the date of superannua tion was enhanced to 58 years on 29.10.1979 it was neces 6 sary to draw a line between those who retired earlier to that date and those who retired subsequent to 29.10.1979, which was not arbitrary and the rules guarantee 50% of pension to both categories irrespective of the date of retirement.
Dismissing the writ petitions, HELD: 1.
The claim of the petitioners is based on a complete misconception of the Rules.
A perusal of the Rules clearly goes to show that Part I of the Rules was no doubt made applicable to all Government servants who would retire on or after 29.10.1979 while Part II was made applicable to such Government servants who were holding pensionable posts on 31st March, 1978 and who retired between 1st April, 1978 and 28th October, 1979 and this distinction was necessary in view of the fact that the age of superannuation for retire ment was increased from 55 years to 58 years w.e.f.
29th October, 1979.
[9G H; 10A] 2.
All the benefits have been granted to the pensioners like the petitioners who had retired between 1.4.1978 and 29.10.1979 in the amount of pension, retirement gratuity and family pension as granted to the Government servants falling under Part I So far as the amount of pension is concerned, the formula of completed six monthly periods of qualifying service was worked out as 30/60 of average emoluments which was equal to 50% of the pay.
On account of the fact that the Government servants falling in Part I are retiring at the superannuation age of 58 years the above formula was calcu lated as 33/66 which was also 50% of the average emoluments.
Similarly in the case of retirement gratuity and family pension no distinction has been made in the case of the two categories of pensioners.
This clearly goes to show that neither there is any discrimination nor any disadvantage to the pensioners falling in the category of petitioners and the formula working out the amount of pension is based on a rational principle and it cannot be said that such differen tial rates have no reasonable nexus to the object sought to be achieved or the same are in any manner violative of Article 14 of the Constitution.
[10A D] D.S. Nakara & Ors.
vs Union of India, ; ; distinguished.


judgement:
vil Appeal Nos.
2 192/93 of 1972.
From the Judgment and Decree dated 23.4.1971 of the Madras High Court in Writ Appeal Nos. 155 and 157 of 1970.
G.L. Sanghi, K. Parasaran, section Krishnamurthy Iyer, K.K. Venugopal, D.N. Mishra and Ms. Lira Goswami for the Appel lants.
V.C. Mahajan, Gobind Das, N.L. Kakar, C.V. Subba Rao, B.R. Aggarwala, T.C. Sharma, Mrs. Sushma Suri and Ms. Sushma Manchanda for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
Both these appeals are against the common judgment of the Madras High Court (hereinafter referred to as 'the High Court ') by a certificate under Article 133(1) of the Constitution prior to its amendment.
The appellants ' writ petitions were dismissed by a common judgment dated 18.12.1969 by a learned Single Judge of the High Court and thereafter, the writ appeals were dismissed by a Division Bench of the High Court on 23.4.1971.
The grievance of the appellants before us is, as it was in the High Court, against the fixation of a uniform retention price in 1969 to be paid to all producers for the cement produced by them and acquired by the State Trading Corporation.
In short, the appellants ' grievance is that the fixation of a uniform retention price for all producers in 1969 instead of three different retention prices for different categories of producers, as was done earlier, amounted to discrimination contravening Article 14 of the Constitution.
The background in which the argument of discrimination has to be tested may now be stated.
Cement has been a con trolled com 853 modity for a long time and its production, distribution and price were regulated by Cement Control Orders issued by the Central Government from time to time in exercise of the powers conferred under the Industries (Development & Regula tion) Act, 1951.
The arrangement made in 1856 was that the entire quantity of cement produced by all producers was acquired by the State Trading Corporation which distributed it throughout the country at a uniform price on f.o.r.
basis.
The price payable by the State Trading Corporation to the producer was, however, the 'retention price ' or 'ex works ' or 'ex factory price ' fixed by the Government.
In accordance with the recommendations of the First Tariff Commission in 1958, the Central Government fixed f.o.r.
and ex factory prices for a period of three years from July 1958, under the Cement Control Order, 1958.
Even though the consumer price was one uniform f.o.r.
destination price, there were different retention prices for cement relating to the producers.
In case of a new unit commencing production, the Government fixed suitable retention price for it on the basis of cost of production.
Pursuant to representation by the cement industry for revision in the prices, the Second Tariff Commission was set up by the Government to examine the question.
The Tariff Commission, after a comprehensive study, submitted its report on 26.8.1961.
In the report, it was noticed that fixation of ex works price for individual cement producers had brought stagnation in the cement industry due to lack of competition and incentive amongst producers to reduce the cost of production, improve the operational efficiency and increase the output.
It was observed that instead of reward ing efficiency, it had promoted a tendency to inflate costs which facilitated increase in the margin of profit to the producer.
The Tariff Commission ultimately grouped the various units under three broad categories on the basis of return on the capital employed.
These were: the lowest cost group, the high cost group, and those whose cost of produc tion was in between the other two groups.
Accordingly, the Tariff Commission recommended different retention prices for the manufacturers of cement.
The Government generally ac cepted the recommendations and passed the Cement Control Order, 1961, fixing three different retention prices for three different groups of manufacturers.
The Central Govern ment from time to time permitted increase in the retention prices so fixed.
The Central Government decided on discontrol of cement w.e.f.
1.1.1966, but the cement industry imposed a system of self regulation and set up an unofficial body known as "Cement Allocation and 854 Coordinating Organisation".
The cement was to be distributed to consumers at uniform f.o.r.
destination price all over India.
This price included a freight component.
A cement regulation account was also established to which a manufac turer would either contribute or draw from depending on the actual freight incurred.
This system was not found workable and the Central Government decided to re impose control.
The Cement Control Order, 1967 was passed under Section 18G and Section 25 of the Industries (Development & Regulation) Act, 1951, to be effective from 1.1.1968.
Under this Order, the threetier retention price system was continued and the retention prices fixed for the three groups were specified in the Schedule as Rs.90.50, Rs.93.50 and Rs.96.
Both the appellants fell under the category for which the retention price specified in the Schedule was Rs.96.
Under this Cement Control Order, the system of uniform consumer price was preserved and freight equalisation was maintained by requir ing the manufacturer to either contribute or draw from the cement regulation account set up under clause 9 of the Order.
The Cement Controller replaced the Cement Allocation and Co ordinating Organisation.
Pursuant to the representation made by various manufac turers, the Central Government enquired into the increase in the cost of production since 1.1.1966.
In consultation with the concerned authorities, it was estimated that the weight ed average increase in the cost of production since 1.1.1966 was Rs7 per tonne.
The Central Government then issued the Cement Control (Amendment) Order, 1969 on 14.4.1969 effec tive from 16.4.1969 by which the Cement Control Order, 1967 was amended and in respect of all cement manufacturers, except M/s. Travancore Cement Limited, Kottayam, a uniform retention price of Rs. 100 per tonne was fixed.
The appellants filed writ petitions in the Madras High Court challenging the fixation of a uniform retention price of Rs. 100 per tonne in this manner on the ground that it violated Articles 14 and 19(1)(g) of the Constitution.
As earlier stated, the challenge was rejected by a Single Judge and thereafter, a Division Bench of the High Court, Hence, these appeals by a certificate granted by the High Court under the unamended Article 133(1) of the Constitution of India, The challenge before us in these appeals is based only on Article 14 of the Constitution.
Shri K. Parasaran, learned counsel for the appellant in the Civil Appeal No. 2193 of 1972 (Chettinad Cement 855 Corporation Ltd. vs Union of India, contended that the impugned Order made in 1969 fixing a uniform retention price for all three categories of cement producers treats unequals as equals.
He argued that the fixation of three different retention prices earlier was based on the Tariff Commis sion 's Report on the postulate that different .producers were differently situated with different cost of production and therefore, the fixation of different retention prices for them was reasonable.
He next contended that increase in the cost of production being the real cause for re fixation of a higher price, the exercise purports to be under Clause 12 of the Cement Control Order, 1967, which does not permit fixation of the same price for all producers in spite of the difference in their cost of production, particularly when the Schedule to the order initially specified different prices for them.
He also contended that on the finding of the High Court that the Chettinad Cement Corporation Ltd. (appellant in Civil Appeal No. 2193 of 1972) a newly born unit in infancy has suffered by this common treatment because there are several features which distinguish the Chettinad Cement Corporation Ltd. from the other units, fixation of the same price for this appellant is discrimina tory, particularly when a distinction was made in the case of M/s. Travancore Cement Ltd., Kottayam, for which a higher retention price was fixed.
Shri Parasaran, therefore, con tended that atleast in the case of this appellant, discrimi nation is proved on the basis of the High Court 's finding of fact and a direction for re fixation of a reasonable price 'for this appellant would be justified.
Shri G.L. Sanghi, learned counsel for the appellant in Civil Appeal No. 2192 of 1972, advanced a slightly modified argument.
He too referred to Clause 12 of the Cement Control Order, 1967 to contend that fixation of one uniform retention price for all producers is not permissible thereunder.
He argued that the increase of Rs.7 per tonne was to be made to the existing three tier retention prices, but an irrational basis was adopted in fixing the uniform price of Rs. 100 per tonne which results in an unequal increase to the three different retention prices then existing.
Both the learned counsel contended that the result, therefore, is that whereas pro ducers for whom the retention price fixed earlier was Rs.90.50 per tonne have got an increase of more than Rs.7, the producers for whom the retention price was fixed at Rs.96 per tonne have been given an increase of less than Rs.7.
It was, therefore, contended that fixation of the uniform retention price of Rs. 100 per tonne in case of all cement producers except M/s. Travancore Cement Ltd., Kotta yam, is discriminatory resulting in contravention of Article 14 of the Constitution.
To recapitulate, the arrangement in vogue from 1956 was that 856 the cement produced by all the producers was acquired by the State Trading Corporation which distributed the commodity throughout the country at a uniform price on f.o.r. destina tion basis.
The price payable by the S.T.C. to the producers was known as the 'retention price ' or 'ex works ' or 'ex factory price ' at a uniform rate.
On a representation by the industry for revision of prices, the Government appointed the Second Tariff Commission to go into the question.
The Tariff Commission, after a comprehensive review, submitted its report on 26.8.1961, and recommended the fixation of different retention prices for different groups of cement producers.
The Government generally accepted the recommenda tions of the Tariff Commission and fixed three different retention prices which remained in vogue till fixation of a uniform retention price by the impugned Order in 1969.
It may be mentioned that the fixation of three different prices instead of one uniform retention price in the inter vening period was challenged before the Rajasthan High Court on the ground that it was discriminatory, but that challenge was rejected in Jaipur Udyog Ltd. vs Union of India, AIR 1.
Thereafter, the cement industry sought a further revi sion of the prices and the industry accepted in principle that there should be one uniform retention price or ex factory price in place of the three tier system, though the claim of the industry was that the uniform price be fixed at Rs.96 instead of Rs.93.
The real controversy, therefore, between the cement industry and the Central Government was, whether the addition of Rs.7 per tonne for fixation of a uniform retention price should be made to the sum of Rs.96 or to Rs.93.
In other words, if the uniform retention price were fixed at Rs. 104 per tonne instead of Rs. 100 per tonne, there was no grievance to anyone in the cement indus try against fixation of the uniform retention price.
Even at the hearing before us, in reply to this specific query by us, learned counsel for the appellants did not dispute that no grievance would survive to the appellants if the uniform retention price was fixed at Rs. 104 per tonne instead of Rs. 100 per tonne.
In substance, the grievance of both the appellants, therefore, is only to this extent and the argu ment of discrimination has been advanced for this purpose.
In the counter affidavit filed on behalf of the Central Government, the manner in which the uniform retention price for the industry was fixed at Rs. 100 per tonne has been elaborately explained.
A portion of the counter affidavit, relied on by the High Court also, is as under: 857 "The question of introduction of a uniform price for the entire industry had been under consideration from time to time since 1961.
The opportunity of the request of the industry for an upward revision of their retention price due to increase in cost of production as a result of Governmen tal actions since 1.1.1966, was availed of to consider whether it was not opportune to introduce finally a uniform price for the entire industry as a Whole.
In view of the observations of the Tariff Commission in 1961 that econo mies were possible with better management control and that the industry should make every effort to reduce its cost of production in future and the time elapsed since 196 1 it was felt that the additional price granted to the industry in 196 1, need not any longer be continued.
The weighted aver age increase in the cost of production as a result of Gov ernmental actions since 1.1.1966, was determined in consul tation with the Chief Cost Accounts Officer as Rs.7 per tonne.
The uniform price thus works out to Rs.90.50 per tome, i.e. Rs.69.50 per tonne prescribed in '1961 together with subsequent increases amounting in all to Rs.21.
The weighted average retention price on the basis of three different retention prices amounted to Rs.93 per tonne.
The uniform price for the industry was thus fixed at Rs. 100 i.e. Rs.93 per tonne, the weighted average of the three retention prices on the basis of actual production plus Rs.7 per tonne, as a result of the increase in the cost of pro duction due to Governmental actions since 1.1.1966.
The fixation of a uniform retention price does not therefore involve any inequality or arbitrariness.
It is denied that the Cement Control (Amendment) Order, 1969, has introduced any unfair and arbitrary inequality among the various pro ducers and would cause considerable loss to the petitioner or would amount to an unjust and arbitrary discrimination violative of Article 14 or 19(1)(g) of the Constitution of India.
" The assertion in the counter affidavit of the Government is that the industry was itself in favour of a single uni form retention price which was taken into account by the Government in fixing the uniform price.
This was not rebut ted by the appellants.
The High Court has rightly relied on this fact.
It is, therefore, clear that the fixation of Rs. 100 per tonne as the uniform retention price for the entire industry with the solitary exception of M/s. Travancore Cement Ltd., Kotta 858 yam, for which justification has been shown, was on a ra tional basis taking into account all relevant data and factors including the cement industry 's acceptance of the principle of a uniform retention price for the entire indus try, the only difference being in the price, actually fixed at Rs. 100 per tonne instead of Rs. 104 per tonne claimed by the cement industry.
It is obvious that the fixation at Rs. 100 per tonne being shows to be made on a principle which has not been faulted, the actual fixation at Rs. 100 instead of Rs. 104 to be received by the industry is not within the domain of permissible judicial review if the principle of a uniform retention price for the entire industry cannot be faulted, The principles of price fixation permitting the fixation of a uniform price for the entire industry are no longer debatable after the recent decision of a Constitution Bench in M/s, Shri Sitaram Sugar Company Limited & Anr.
vs Union of India & Ors.
, and U.P. Stale Sugar Corporation Ltd. & Anr.
vs Union of India & Ors.
, JT even if the same were debatable when the controversy arose in the present case.
In this decision, the Constitution Bench while affirming the earlier decisions of this Court in Anakapalle Co operative Agricultural & Industrial Society Ltd. etc.
vs Union of India & Ors.
, ; and The Panipat Cooperative Sugar Mills vs Union of India, [1973] 2 SCR 860 reiterated the settled principles.
It was pointed out that what is best for the industry and in what manner the policy should be formulated and implemented, bearing in mind the object of supply and equitable distribution of the commodity at a fair price in the best interest of the gener al public, is a matter for decision exclusively within the province of the Central Government and such matters do not ordinarily attract the power of judicial review.
It was also held that even if some persons are at a disadvantage and have suffered losses on account of the formulation and implementation of the Government policy, that is not by itself sufficient ground for interference with the Govern mental action.
Rejection of the principle of fixation of price unitwise on actual cost basis of each unit was reiter ated and it was pointed out that such a policy promotes efficiency and provides an incentive to cut down the cost introducing an element of healthy competition among the units.
Similarly, the criticism against the principle of weighted average adopted in fixation of price was rejected as baseless.
It is obvious that even if there be no price control, the uneconomic units would be at a great disadvan tage and, therefore, the position should not be different for the purpose of price fixation.
The "cost plus" price fixation perpetuates inefficiency in the industry and is against the long term interest of the country.
It was held "that 859 price, . . , is to be arrived at by a process of cost ing with reference to a reasonably efficient and economic representative cross section of manufacturing units.
" It is, therefore, clear that the principle of fixation of a uniform price for the industry is an accepted principle and this has to be done by fixing a uniform price on the basis of the cost of a reasonably efficient and economic representative cross section of manufacturing units and not with reference to the cost in relation to each unit.
Obviously, such a practice is in larger public interest and also promotes efficiency in the industry providing an incentive to the uneconomic units to achieve efficiency and to reduce their cost.
In the same decision, the permitted scope of judicial review was summarised as under: "The true position, therefore, is that any act of the repos itory of power, whether legislative or administrative or quasi judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.
" In the present case, we find that the fixation of the uniform retention price at Rs. 100 per tonne is based on the weighted average increase of Rs.7 in the cost of production and the weighted average retention price on the basis of three different retention prices determined at Rs.93 per tonne on the basis of expert opinion.
Fixation of a uniform retention price being clearly permissible and the same having been determined at Rs. 100 per tonne on the basis of expert opinion, rounded on relevant factors, there is no scope for interference within the limits of permissible judicial review in the present case.
A brief reference to Clause 12 of the Cement Control Order, 1967 may also be made.
Clause 12 reads as under: "12.
POWER TO VARY THE PRICES AND TO ALTER THE SCHEDULE .
The Central Government may, having regard to any change in any of the factors relevant for the price of cement, such as an increase or decrease in the cost of production or distribution, by notification in the Official Gazette, vary the price fixed in this Order or alter the Schedule to this Order as appear to it to be necessary.
" 860 We are unable to appreciate how Clause 12 in any manner restricts the Central Government 's power to fix a uniform retention price for all the units specified in the Schedule to the Order, even though different prices were specified in the Schedule as initially enacted.
The Central Government 's power to refix the price can be exercised 'having regard to any change in any of the factors relevant for determination of price of cement '.
The meaning of the expression 'having regard to ' is wellsettled.
It indicates that in exercising the power, regard must be had also to the factors enumerated together with all factors relevant for exercise of that power.
Once such factor specified in Clause 12 is "such as an increase or decrease in the cost of production or distri bution".
Admittedly, the fixation of the uniform retention price at Rs. I00 per tonne was made on the industry 's demand for revision of the price as a result of increase in the cost of production, the only dispute between the industry and the Central Government being with regard to the extent of increase and not to the effect of increase or the mode of increase by fixation of a uniform price.
It is, therefore, difficult to appreciate the support that the learned counsel for the appellants seek from Clause 12.
The only surviving question for consideration is the argument in Civil Appeal No. 2 193 of 1972 for a differen tial treatment to the appellant, M/s. Chettinad Cement Corporation Limited, on the analogy of M/s. Travancore Cement Limited, Kottayam.
In the counter affidavit of Shri G. Ramanathan, Under Secretary to the Government of India, the reason for treating Travancore Cement Limited different ly has been clearly stated.
It has been stated that it is a sub standard unit with a capacity of 50000 tonnes per annum only without any scope for expansion while the standard capacity for a unit is two lakh tonnes per annum; so that this unit is not capable of expanding the capacity and it is on the whole an uneconomic unit deserving a special consid eration.
No material has been produced by the appellant, M/s. Chettinad Cement Corporation Limited, to show that it is a similar sub standard unit without any capacity for expansion, so that it too must continue to be an uneconomic unit like M/s. Travancore Cement Limited, Kottayam deserving a similar treatment.
The counter affidavit, therefore, shows a rational basis for classifying M/s. Travancore Cement Limited, Kottayam, differently as a sub standard and an uneconomic unit without any scope for improvement in com parison to other units.
This argument also is untenable.
As a result of the aforesaid discussion, we do not find merit in 861 any of the contentions advanced in support of these appeals to support the challenge on the basis of Article 14 of the Constitution to the fixation of a uniform retention price of Rs. 100 per tonne in 1969 by the impugned Order or to the practice of a uniform retention price being followed upto 1979.
These appeals are accordingly dismissed.
In the circum stances of the case, the parties shall bear their own costs.
R.S.S. Appeals dismissed.

summary/full:
The appellants filed writ petitions in the Madras High Court challenging the fixation in 1969 of a uniform reten tion price of Rs. 100 per tonne of cement instead of the existing three different retention prices for different categories of producers fixed earlier on the basis of the recommendations made by the Second Tariff Commission in 1961.
The grievance of the appellants was that the fixation of a uniform retention price to be paid to all producers for the cement produced by them and acquired by the State Trad ing Corporation amounted to discrimination contravening Article 14 of the Constitution.
The challenge was rejected by a Single Judge and, thereafter, a Division Bench of the High Court.
Cement has been a controlled commodity for a long time and its production, distribution and price were regulated by Cement Control Orders issued by the Central Government from time to time in exercise of the powers conferred under sections 18G and 25 of the Industrial (Development & Regula tion) Act, 1951.
On behalf of the appellants it was contended that the impugned Order made in 1969 fixing a uniform retention price for all three categories of cement producers treated un equals as equals; that the increase of Rs.7 per tonne was to be made to the existing three tier retention prices, but an irrational basis was adopted in fixing the uniform price of Rs. 100 per tonne which resulted in an unequal increase to the three different retention prices then existing; that clause 12 of the Cement Control Order, 1967 did not permit one uniform retention price; and that atleast in the case of Chettinad Cement Corporation Ltd. discrimination was proved on the basis of the distinction made by the High Court in the case of M/s Travancore Cement Ltd. The appellants howev er did not dispute before this court that no grievance would survive if the uniform retention price was fixed at Rs. 104 per tonne instead of Rs. 100.
851 On behalf of the respondents it was asserted that the industry itself had sought a revision of the prices and had accepted in principle that there should be one uniform retention price.
Dismissing the appeals, this Court, HELD: {1) The fixation of Rs. 100 per tonne as the uniform retention price for the entire industry with the solitary exception of M/S Travancore Cement Ltd. for which justification had been shown, was on a rational basis taking into account all relevant data and factors including the cement industry 's acceptance of the principle of a uniform retention price for the entire industry, the only difference being in the price actually fixed at Rs. 100 per tonne instead of Rs. 104 per tonne claimed by the cement industry.
It is obvious, therefore, that the principle of a uniform retention price for the entire industry had not been fault ed.
[857H; 858A B] (2) The principle of fixation of a uniform price for the industry was an accepted principle and this had to be done by fixing the uniform price on the basis of the cost of a reasonably efficient and economic representative cross section of manufacturing units and not with reference to the cost in relation to each unit.
[859A B] M/s. Shri Sitaram Sugar Company Limited & Anr.
vs Union of India & Ors.
and U.P. State Sugar Corporation Ltd. & Anr.
vs Union of India & Ors., J.T. , referred to.
(3) Fixation of a uniform retention price being clearly permissible and the same having been determined at Rs. 100 per tonne on the basis of expert opinion, rounded on rele vant factors, there was no scope for interference within the limits of permissible judicial review in the present case.
[859E] Anakapalle Co operative Agricultural & Industrial Socie ty Ltd. vs Union of India, and The Panipat Cooperative Sugar Mills vs Union of India, [1973] 2 SCR 860, referred to.
(4) The Central Government 's power under Clause 12 of the Cement Control Order, 1967 to refix the price can be exercised 'having regard to any change in any of the factors relevant for determination of price of cement '.
The meaning of the expression 'having regard to ' is well settled.
It indicates that in exercising the power, regard must be had also to the factors enumerated together with all factors relevant for 852 exercise of that power.
One such factor specified in Clause 12 is "such (5) No material has been produced by the appellant to show that M/s Chettinad Cement Corporation is a similar substandard unit without any capacity for expansion, so that it too must continue to be an uneconomic unit like M/s Travancore Cement Ltd. deserving a similar treatment.
[860F G]