1959 JTR(SC) 182
1960 AIR(SC) 413 ; 1960 KHC 614
SUPREME COURT OF INDIA
16th October, 1959
B.P. SINHA, C.J.I., P.B. GAJENDRAGADKAR AND K.N. WANCHOO, JJ.
M/s. Dalmia Cement (Bharat) Ltd., Appellants
Versus
Their Workers represented by the Dalmia Cement Workers Union, Dalmiapuram, Respondents.
Civil Appeal No. 90 of 1958. 414
Advocates appeared
Mr. C. K. Daphtary, Solicitor-General of India (M/s. K. C. Jain and B. P. Maheshwari, Advocates, with him), for Appellants; Mr. Y. Kumar, Advocate, for Respondents.
Workers are entitled to receive both gratuity and retrenchment compensation. Furthermore, new legal pleas cannot be introduced for the first time before the Supreme Court if they were not raised in the lower tribunals.
Act
Referred
:INDUSTRIAL DISPUTES ACT
: S.25(f)
(A) Industrial Dispute - Gratuity and Retrenchment Compensation - Workers are entitled to the double benefit of gratuity and retrenchment compensation. (Para 2)
(B) Appellate Procedure - A party is precluded from raising a new plea for the first time before the highest court if such a plea was not raised before the tribunal or the appellate tribunal. (Para 4)
Facts of the case:
An industrial dispute arose concerning the revision of a gratuity scheme. The employer proposed a modification to the rules stating that the scheme would not apply to workers entitled to gratuity under any other law or special award, effectively seeking to prevent the payment of both gratuity and retrenchment compensation. The industrial tribunal and the appellate tribunal rejected this modification.
Findings of Court:
The court held that the contention against the double benefit of gratuity and retrenchment compensation is unsustainable, as workers are entitled to both.
Issues: Whether the gratuity scheme could be modified to prevent workers from receiving both gratuity and retrenchment compensation, and whether a prior contract could be invoked for the first time at the appellate stage to prevent modifications to the scheme.
Ratio Decidendi: The court ruled that workers can claim the double benefit of gratuity and retrenchment compensation. Additionally, it held that a plea regarding a subsisting contract cannot be raised for the first time before the apex court if it was not raised before the lower tribunals.
Result: Appeal dismissed with costs.
(B) Appellate Procedure - A party is precluded from raising a new plea for the first time before the highest court if such a plea was not raised before the tribunal or the appellate tribunal. (Para 4)
Facts of the case:
An industrial dispute arose concerning the revision of a gratuity scheme. The employer proposed a modification to the rules stating that the scheme would not apply to workers entitled to gratuity under any other law or special award, effectively seeking to prevent the payment of both gratuity and retrenchment compensation. The industrial tribunal and the appellate tribunal rejected this modification.
Findings of Court:
The court held that the contention against the double benefit of gratuity and retrenchment compensation is unsustainable, as workers are entitled to both.
Issues: Whether the gratuity scheme could be modified to prevent workers from receiving both gratuity and retrenchment compensation, and whether a prior contract could be invoked for the first time at the appellate stage to prevent modifications to the scheme.
Ratio Decidendi: The court ruled that workers can claim the double benefit of gratuity and retrenchment compensation. Additionally, it held that a plea regarding a subsisting contract cannot be raised for the first time before the apex court if it was not raised before the lower tribunals.
Result: Appeal dismissed with costs.
Construction - Referred to in the context of deciding disputes based on the construction of the material clauses of a scheme.
Double-benefit - The court held that workmen are entitled to claim both gratuity and retrenchment compensation.
B.P.MAHESHVARI, C.K.DAFTARY, K.C.JAIN, Y.Kumar
Judgment
GAJNENDRAGADKAR, J. : This appeal by special leave arises out of an industrial dispute between M/s. Dalmia Cement (Bharat) Ltd., (hereinafter called the appellant) and its workmen (hereinafter called the respondents) which was referred for adjudication to the industrial tribunal. The dispute related to several items of claim made by the respondents but in the present appeal we are concerned only with one of them; that is the respondents claim for gratuity. The tribunal considered the objections raised by the appellant against the scheme of gratuity which was then in force and held that there was no substance in them. Certain alterations were suggested by the respondents in the said scheme some of which were accepted by the tribunal. In the result an award was made directing appropriate revision of the scheme of gratuity. Against this award the appellant preferred an appeal, and on its behalf the same contentions were raised and with the same result. The appellate tribunal saw no reason to interfere with the award made by the tribunal. It is against this part of the award that the present appeal has been preferred.
2. It appears that two modifications were suggested by the appellant in the current gratuity rules. The second of these modifications was not pressed before the tribunal and need not be considered. The first modification suggested was that the rules regarding payment of gratuity should not be applicable in the case of a worker who is entitled to gratuity under any law or special award for the time being in force and applicable to him in which case the gratuity will be payable to him according to that law or special award, and not according to these rules. By this amendment the appellant sought to raise the general question which has been considered by us in the case of Indian Hume Pipe Co. Ltd. v. Its Workmen , Civil Appeal No. 169 of 1958, D/- 16-10-1959. It is true that the modification proposed by the appellant refers to the gratuity payable to the workmen under any award for the time being in force; it does not refer in terms to retrenchment compensation. But the failure to use the words "retrenchment compensation" can be easily explained if it is remembered that the modification was suggested on December 1, 1953, when Ordinance V of 1953 was in force. As we have pointed out in the case of the Indian Hume Pipe Co. Ltd., (supra), S. 25- E of the Ordinance had itself used the word gratuity which had been subsequently substituted by the words "retrenchment compensation" by S. 25- F of the Act. Therefore it is clear that the contention raised by the appellant by suggesting this modification was based on the general argument that the workmen are not entitled to the double benefit of gratuity and retrenchment compensation. The learned Solicitor General is, therefore, right in arguing that the appellant tribunal should not have held that it was not open to the appellant to raise the general issue under the head of this modification; but that is a matter of mere academic importance because on the general question which the appellant seeks to raise we have already held that what is described as a double benefit of gratuity and retrenchment compensation can be claimed by workmen. Therefore, on the merits the decision of the appellate tribunal which confirmed the award passed by the tribunal is right.
3. We must, however, add that in the present appeal we are not dealing with the claim made by any retrenched workman for gratuity in addition to the compensation due to him under S. 25-F. We are dealing with the general question as to whether the gratuity scheme originally framed by the appellant should be modified as suggested by it, and having regard to the view which we have taken on the general question we see no reason to interfere with the order passed by the appellate tribunal on this point. If the appellant s case is that under the scheme framed by it retrenchment compensation is provided for, it may be open to the appellant to raise such a plea if and when any retrenched workman claims the double benefit of gratuity and retrenchment compensation. The dispute would then be decided on a construction of the material clauses of the current scheme, Vide : Brahmachari Research Institute, Calcutta v. Its Workmen, Civil Appeal No. 4 of 1958, in which we are delivering our judgment today.
4. The learned Solicitor-General incidentally attempted to argue that there was a subsisting contract between the parties which had been entered into on May 26, 1949, and that in view of that contract it was not open to the tribunal to accede to the respondents case for making modifications in the gratuity scheme. This point does not appear to have been raised either before the tribunal or in appeal before the appellate tribunal; and so we cannot allow the appellant to raise this point for the first time before us.
5. The result is the appeal fails and is dismissed with costs.
Appeal dismissed.
For Citation : AIR 1960 SC 413
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