JUDGMENT
Pendse, J:
1. By this petition filed under Article 226 of the Constitution of India, the employees are challenging the legality of the award dated October 11, 1983 passed by Shri B.D. Borude, Presiding Officer, Industrial Tribunal, Bombay in Reference (IT) No. 52 of 1983.
2. The employees of M/s. Protos Engineering Company Pvt. Ltd., Bombay, respondent No. 2, were paid dearness allowance in accordance with the settlement reached between the parties on January 29, 1974. On July 8, 1982 the Company served a notice of change seeking to revise the existing system of dearness allowance as contained in the settlement dated January 29, 1974. The employees objected to this change and the Government, of Maharashtra in exercise of powers conferred by Clause (d) of Sub-section (1) of Section 10 read with Sub-section (5) of Section 12 of the Industrial Disputes Act, 1947, referred the demand to the Industrial Tribunal, the demand being that the Company should withdraw the notice of change. By the impugned notice of change, the Company was claiming that there should be a ceiling on the amount of dearness allowance at Rs. 1500/- per month.
3. Before the Tribunal, the parties filed their respective statements and documents were produced in support of respective claims. The Tribunal by the impugned award rejected the demand of the employees for withdrawal of notice of change, but also did not accept the claim of the Company, that the ceiling should be fixed at Rs. 1500/-per month on payment of dearness allowance. The Tribunal held that the maximum dearness allowance payable shall not exceed Rs. 3000/- per month, and that award is under challenge.
4. Shri Deshmukh, learned counsel appearing on behalf of the petitioners, submitted that the award passed by the Tribunal suffers from total non-application of mind and the submission is correct and deserves acceptance. The Tribunal has set out exhaustively in the first 27 paras of award, the respective contentions of the parties and the submission advanced. In the last paragraph 28 the Tribunal disposed of the reference by observing:
“After having taken stock of all the facts of the case with the analysis discussed in the foregoing paragraphs, the demand of withdrawal of notice of change is rejected and the following change in the scheme of dearness allowance is granted.”
Shri Deshmukh is right in his contention that the Tribunal had not applied its mind to any of the facets and even the change suggested by the Company is not accepted, but some novel method was followed by fixing the ceiling of Rs. 3000/- per month in respect of payment of dearness allowance. Shri Damania had to concede that the award is entirely unsustainable and lacks any application of mind. It is unfortunate that for the failure of the Industrial Tribunal to apply its mind, the matter is required to be remitted back for a fresh decision on merits.
5. Shri Deshmukh submitted that as the impugned award is set aside, the settlement in existence prior to the date of the award should be taken into account and the employer should be directed to make payment of dearness allowance accordingly. Normally, once the award is set aside, the rights of the parties prior to the award would have to be restored, but Shri Damania submits that the award was passed on October 11, 1983 and this Court declined to grant stay of the operation of the award, with the result that the award is in operation for last over two years.
Shri Damania submitted that in these circumstances there will be several complications if the position prior to the award is restored and the directions are given to the employer. Shri Damania submitted that instead of that, ends of justice would meet if the Tribunal is directed to dispose of the matter afresh within six months and pass the appropriate award. The Company also gives an undertaking through their counsel that the Company would not seek stay of operation of the award that would be passed in any forum and in ease the award is in favour of the employees then the amount due to the employees would be paid with interest to be calculated at the rate of 18 per cent per annum from the date of one month after the date of publication of the impugned award by Borude.
6. Accordingly, petition succeeds, rule is made absolute and the award dated October 11, 1983 is set aside and the matter is remitted back to the Industrial Tribunal for fresh disposal on merits. The President of the Industrial Tribunal may hear the matter or assign it to any other Member. The Company gives an undertaking through their counsel that the Company would not seek stay of operation of the fresh award which will be passed in any forum and in any proceedings. The Company also gives an undertaking that in case the employees are entitled to receive any additional amounts from the employer under the fresh award to be passed, then the said amount would be paid along with interest to be calculated at the rate of 18% per annum from one month after the date of publication of the award passed by Borude on October 11, 1983, The employer also gives an undertaking that the said amount would be paid within four weeks from the date the award becomes enforceable. The Tribunal is directed to dispose of the reference within a period of six months from the date of receipt of the writ and the papers.
In the circumstances of the case, there will be no order as to costs.