{"id":191397,"date":"1981-07-31T00:00:00","date_gmt":"1981-07-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/workmen-of-metro-theatre-ltd-vs-metro-theatre-ltd-bombay-on-31-july-1981"},"modified":"2015-07-09T17:26:33","modified_gmt":"2015-07-09T11:56:33","slug":"workmen-of-metro-theatre-ltd-vs-metro-theatre-ltd-bombay-on-31-july-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/workmen-of-metro-theatre-ltd-vs-metro-theatre-ltd-bombay-on-31-july-1981","title":{"rendered":"Workmen Of Metro Theatre Ltd., … vs Metro Theatre Ltd., Bombay on 31 July, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Workmen Of Metro Theatre Ltd., … vs Metro Theatre Ltd., Bombay on 31 July, 1981<\/div>\n
Equivalent citations: 1981 AIR 1685, \t\t 1981 SCC (3) 596<\/div>\n
Author: V Tulzapurkar<\/div>\n
Bench: Tulzapurkar, V.D.<\/div>\n
           PETITIONER:\nWORKMEN OF METRO THEATRE LTD., BOMBAY\n\n\tVs.\n\nRESPONDENT:\nMETRO THEATRE LTD., BOMBAY\n\nDATE OF JUDGMENT31\/07\/1981\n\nBENCH:\nTULZAPURKAR, V.D.\nBENCH:\nTULZAPURKAR, V.D.\nVARADARAJAN, A. (J)\n\nCITATION:\n 1981 AIR 1685\t\t  1981 SCC  (3) 596\n 1981 SCALE  (3)1125\n\n\nACT:\n     Labour  legislation-Retrospectivity   of\tthe   award-\nDiscretion to make the Award with retrospective effect vests\nwith the  Tribunal under  section 17A(4)  of the  Industrial\nDisputes Act,  1947-Linkage of\tdearness allowance with some\nrational principle  Cost of  living index and consumer price\nindex principle\t or on the normal principle of industry-cum-\nregion should  be uniform  and desirable in one and the same\nindustry-Payment  of   Gratuity\t Act,\tsection\t  4(5)-Award\nincludes any  Award that  would be  made by  an\t adjudicator\nwherein better\tterms of  gratuity could  be granted  to the\nemployees if the facts and circumstances warrant such grant.\n\n\n\nHEADNOTE:\n     The wages\tand gratuity of the workers of Metro Theatre\nwere governed by an earlier award in Reference No. 1 of 1968\npublished in  3-7-1969 which  was effective  from  1-1-1967,\nwhile dearness\tallowance  was\tgoverned  by  the  award  in\nReference No.  440 of  1970 effective  from  1-1-1970.\tBoth\nthese awards  were  duly  terminated  by  notice  and  fresh\ndemands for  revision of  wage scales,\tdearness  allowance,\netc. effective\tfrom 1-1-1974  were submitted by the workers\nUnion to  the Management  on 15-4-1974. A reference (IT) No.\n248 of 1975 was made on 10-7-1975 to the Industrial Tribunal\nwhich by  its award  dated September  22, 1977\tpublished in\nMaharashtra Government\tGazette on  November 3, 1977 granted\nthe revision  in wage  scales and  dearness  allowance\twith\neffect from  1-1-1977. While  granting special leave against\nthe impugned  award the\t Court confined\t the appeal to three\npoints, namely:\t (i)  retrospectivity  of  the\taward:\t(ii)\nlinkage of dearness allowance to some rational principle and\n(iii)  construction  of\t section  4(5)\tof  the\t Payment  of\nGratuity Act, 1971.\n     Allowing the  appeal in  part on  the point of gratuity\nand remanding  to the Tribunal on the question of linkage of\ndearness allowance, the Court.\n^\n     HELD:  1.\t Under\tsection\t 17A(4)\t of  the  Industrial\nDisputes Act,  1947 it\tis a  matter of\t discretion for\t the\nTribunal to  decide having  regard to  the circumstances  of\neach case  from\t which\tdate  its  award  should  come\tinto\noperation and  no general  rule can  be laid  down as to the\ndate from  which the  Tribunal should  bring its  award into\nforce and  the Supreme\tCourt shall  not interfere  with the\nTribunal's order in that behalf unless substantial ground is\nmade out  showing unreasonable\texercise or its part. In the\ninstant case,  in the  absence of any material placed before\nthe Tribunal  or even  before the  Supreme Court  by  either\nparty as  to whether  the profits  earned by the Company for\nthe years  1974, 1975  and 1976\t had been  disbursed or were\nstill available\t with the  Company at the time of making the\naward,\ta  factor  relevant  on\t the  question\tof  granting\nretrospectivity and  also in view of decreasing trend in the\nprofits made  by the  Company during  the said\tthree years,\naccording to  the Exhibit  U-5 marked by the appellant Union\nitself, presumably the Tribunal felt that it would be proper\nto give\t the revision  in wage scales and dearness allowance\nonly from 1-1-1977 onwards and not to give any retrsopective\neffect. [167 E-H, 168 A-C]\n165\n     Wenger and\t Co. and  others v.  Their Workmen,<\/a>  1963 II\nL.L.J. 403: Bengal Chemical and Pharmaceutical Works Ltd. v.\nIts Workmen  and  Another,<\/a>  1969  I  L.L.J.  751  and  Hydro\n(Engineers) (Pvt.) Ltd. v. Their Workmen,<\/a> 1969 I L.L.J. 713,\nfollowed.\n     2. On  the question  of linkage  of dearness  allowance\nwith some rational principle, uniformity is highly desirable\nin one\tand the\t same industry.\t The very  same adjudicator,\nShri B.B.  Tambe, yet  in other Reference (VA) No. 1 of 1979\ndated  June   27,  1980\t had  awarded  payment\tof  dearness\nallowance linked  with the  cost living\t index, while in the\ninstant\t case,\t fixed\tdearness  allowance  on\t the  normal\nprinciple of industry-cum-region. [168 C, G-H, 169 A]\n     3:1. On  true  construction  of  section  4(5)  of\t the\nPayment of Gratuity Act, the expression \"award\" occurring in\nthe said  provision does  not mean and cannot be confined to\n\"existing award\"  but includes\tany award that would be made\nby an  adjudicator wherein better terms of gratuity could be\ngranted to  the employees  if the  facts  and  circumstances\nwarrant such  grant. In the first place, there is nothing in\nthe provision which limits the expression \"award\". Secondly,\nit cannot  be and  was not  that under the above provision a\ngratuity  scheme   obtaining  under  existing  agreement  or\ncontract could\tbe improved  upon by  a fresh  agreement  or\nfresh contract\tbetween the employer and the employee and if\nthat be\t so, there  is no  reason why the expression \"award\"\nshould be  construed as\t referring to  an existing award and\nnot to\tinclude a  fresh  award\t that  may  be\tmade  by  an\nadjudicator or\tan Industrial  Court improving\tin favour of\nthe employees  the scheme  obtained under  the\tAct  or\t the\nexisting award.\t Thirdly, the very fact that under the above\nprovision better  terms of  gratuity could be obtained by an\nemployee by  an agreement  or  contract\t with  the  employer\nnotwithstanding the  scheme of\tgratuity obtaining under the\nAct clearly suggests that no standardisation of the gratuity\nscheme\tcontemplated   by  the\t Act  was  intended  by\t the\nLegislature. [171 D-H, 172 A]\n     3:2. It is true that the Payment of Gratuity Act enacts\na complete  Code containing  detailed provision covering all\nessential features of the scheme for payment. But it is also\nclear that  scheme envisaged  by the  enactment secures\t the\nminimum\t for  the  employees  in  that\tbehalf\tand  express\nprovisions are\tfound in the Act under which better terms of\ngratuity if  already existing  are not\tmerely preserved but\nbetter terms  could be\tconferred on the employee in future.\n[172 A-C]\n     State of  Punjab v.  Labour Court\tJullundur  and\tOrs.<\/a>\n[1980] 1 S.C.R. 953, followed.\n     Alembic Chemical  Works Company  Ltd. v.  Its  Workmen,<\/a>\n[1961] 1 L.L.J. 328, explained.\n     3:3. The phrase \"under any award, agreement or contract\nwith employer\"\toccuring in  section 4(5)  of the Payment of\nGratuity Act  is intended  to cover future awards agreements\nor contracts  with the\temployer since existing better terms\nof gratuity  are intended  to be  protected by issuance of a\nnotification under section 5 of the Act. [173 B-C]\n166\n     [To maintain  uniformity and  to be  in conformity with\nthe Award made by the same adjudicator in Reference (VA) No.\n5 of 1970 M\/s. Alankar and 39 others v. The Workmen employed\nunder them,  the Court\tdirected that the gratuity scheme as\nset out\t in paragraph 140 of that award be applicable to the\nworkmen of Metro Cinema with effect from 1-1-1970.]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1558 (L)
\nof 1978.\n<\/p>\n
     Appeal by\tspecial leave  from the\t Award dated the 4th
\nAugust, 1977  of the Industrial Tribunal Maharashtra, Bombay
\nin Reference (IT) No. 248 of 1975 published in M.O.G. Part I
\n(L) dated 3rd November, 1977.\n<\/p>\n
     C.L. Dudhia,  K.L. Hathi  and Mrs.\t Hemantika Wahi, for
\nthe Appellant.\n<\/p>\n
     G.B. Pai, Manik A. Gagrat, G. Subramaniam, S.S. Shroff,
\nD.P. Mohanty and T.R. Das, for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     TULZAPURKAR.  J.\tThis  appeal  by  special  leave  is
\ndirected  against  the\taward  of  the\tIndustrial  Tribunal
\nMaharashtra, Bombay,  dated September 22, 1977, in Reference
\n(I.T.) No. 248 of 1975 in the industrial dispute between the
\nrespondent and\tthe workmen  employed by it and published in
\nMaharashtra Government\tGazette on  November 3, 1977. Though
\nthe demands  made by the workers’ Union and the adjudication
\nthereon by  the Tribunal  related to  items like wage scale,
\ndearness allowance,  extra show allowance, gratuity, service
\nconditions of non-permanent staff and retrospectivity, while
\ngranting special  leave this  Court confined  the appeal  to
\nthree points, namely, (i) retrospectivity of the award, (ii)
\nlinkage of dearness allowance to some rational principle and\n<\/p>\n
(iii) construction  of s.  4 (5)  of the Payment of Gratuity
\nAct, 1972,  and leave was expressly refused in regard to the
\nother grounds  mentioned in  the special leave petition. We,
\ntherefore, proceed  to deal  with the aforesaid three points
\non which  arguments were  advanced before  us by  counsel on
\neither side.\n<\/p>\n
     It may  be stated\tthat prior to the impugned award the
\nwages and  gratuity of\tthe workers  were  governed  by\t the
\nearlier award  in Reference  No.  1  of\t 1968  published  on
\n3.7.1969 which\twas effective  from 1.1.1967  while dearness
\nallowance was  governed by the award in Reference No. 440 of
\n1970 effective from 1.1.1970 Both these
\n167<\/span>
\nawards were  duly terminated by notice and fresh demands for
\nrevision of  wage scales, dearness allowance, etc. effective
\nfrom 1.1.1974  were submitted by the Union to the Management
\non 15.4.1974.  The Reference  to the  Tribunal was  made  on
\n10.7.1975 and by the impugned award the Tribunal granted the
\nrevision in  wage scales  and dearness allowance with effect
\nfrom 1.1.1977.\tCounsel for  the appellant  Union  contended
\nthat the  Tribunal erred  in not  granting the revision with
\neffect from  1.1.1974 as  demanded and\tat any rate the same
\nshould have  been granted  from 10.7.1975  being the date of
\nReference, especially  when the Tribunal found the financial
\ncapacity of  the respondent  very sound and admittedly there
\nhad been  a steep  rise in  the cost  of  living  index.  He
\npointed out  that  the\tTribunal  while\t refusing  to  grant
\nretrospective effect  had erroneously  observed\t that  there
\nwill be\t “too much  financial burden  on  the  company”\t as,
\naccording to him, such additional burden could not have been
\nmore than Rs. 1,00,000\/- or Rs. 1,20,000\/- a year during the
\nthree  years   1974,  1975  and\t 1976.\tIn  support  of\t his
\ncontention counsel  referred  to  three\t decisions  of\tthis
\nCourt, namely,\tWenger and  Co. and others v. Their Workmen,
\nBengal\tChemical  and  Pharmaceutical  Works,  Ltd.<\/a>  v.\t Its
\nWorkmen and  another and  Hydro (Engineers)  (Pvt.) Ltd.  v.
\nTheir workman.\n<\/p>\n
     It is difficult to accept this contention and interfere
\nwith the  discretion exercised by the Tribunal in the matter
\nwhich can  be  done  only  if  it  is  shown  to  have\tbeen
\nunreasonably exercised.\t Under s.  17A(4) of  the Industrial
\nDisputes Act,  1947 it\tis a  matter of\t discretion for\t the
\nTribunal to  decide having  regard to  the circumstances  of
\neach case  from\t which\tdate  its  award  should  come\tinto
\noperation and  no general  rule can  be laid  down as to the
\ndate from  which the  Tribunal should  bring its  award into
\nforce and this Court shall not interfere with the Tribunal’s
\norder in  that behalf  unless substantial ground is made out
\nshowing unreasonable  exercise on  its part.  Even the three
\ndecisions cited\t by  the  counsel  clearly  brings  out\t the
\naforesaid position  in law.  The Tribunal  was deciding\t the
\nReference in  August 1977  and though  the additional burden
\nmay not have been more than Rs. 1,00,000\/- or Rs. 1,20,000\/-
\nper year  for  the  three  years  1974,\t 1975  and  1976  if
\nretrospective effect  was given to the revision, no material
\nwas placed before the Tribunal by either party as to whether
\nthe profits  earned by\tthe Company for the said three years
\nhad been  disbursed or were still available with the company
\nat
\n168<\/span>
\nthe time  of making  the  award-a  factor  relevant  on\t the
\nquestion of  granting retrospectivity.\tEven  before  us  no
\nlight could  be thrown\ton the\tpoint by  counsel on  either
\nside. Further  there was  on record  a statement showing the
\nfinancial position of the company for the years 1968 to 1975
\n(year ending  being 31st  August) produced  by the appellant
\nUnion itself at Ex. U5 which clearly showed that the profits
\nof the company before taxation and depreciation had dwindled
\nconsistently for the years 1973, 74 and 75, such profits for
\neach of\t the said  three years\tbeing  Rs.  6,80,912\/-,\t Rs.
\n6,51,181\/- and\tRs. 5,70,884\/-. Presumably it was in view of
\nsuch decreasing\t trend in  the profits\tmade by\t the company
\nduring the  three years that the Tribunal felt that it would
\nbe proper  to give  the revision in wage scales and dearness
\nallowance only\tfrom 1.1.1977  onwards and  not to  give any
\nretrospective effect.  It cannot be said that the discretion
\nhas been unreasonably exercised by the Tribunal.\n<\/p>\n
     Coming to\tthe second  point  of  linkage\tof  dearness
\nallowance  with\t  some\trational   principle   the   Union’s
\ncontention before  the Tribunal was, and the same contention
\nhas been  reiterated by\t the counsel  for the  Union in\t the
\nappeal-that the dearness allowance should be linked with the
\ncost of\t living index  and Consumers’ Price Index Number. It
\nwas pointed  out that  the Bombay  Working Class  Consumers’
\nPrice Index  was 800  in 1970 (when the earlier award in the
\nmatter of  D.A. was  given), that  it had  gone upto 1372 in
\n1977 and  that, therefore,  dearness allowance\ton Index No.
\n999-1,000 should be fixed on 4 weekly basis with a variation
\nfor  every  ten\t points\t rise  or  fall.  But  the  Tribunal
\nnegatived the contention and fixed the dearness allowance on
\nthe normal  principle of industry-cum-region and only reason
\nfor not linking it to the cost of living index was that such
\nlinkage did  not  obtain  in  any  concern  falling  in\t the
\ncategory of  Cinema Exhibiting\tIndustry which\tcould not be
\ncompared with  manufacturing industries\t like textile  where
\nsuch linkage  operated.\t Counsel  for  the  appellant  Union
\npointed out  that the  same adjudicator (Shri B.B. Tambe) as
\nSole Arbitrator\t in Reference  (VA) No.\t 1 of  1979  in\t the
\nindustrial dispute  between M\/s Alankar Theatre and 38 other
\ntheatres of Bombay (cinemas falling in classes A-1, A, B and
\nC) and\tthe workmen employed under them had made an award on
\nJune 27,  1980 (published  in Maharashtra Government Gazette
\non October  9, 1980)  wherein dearness\tallowance  has\tbeen
\nlinked with  the rise  in the  cost of\tliving index and the
\nConsumers’ Price  Index Number.\t The result has been that in
\nCinema Exhibiting Industry all the other 39 theatres will be
\npaying to  their workers  dearness allowance linked with the
\ncost of living index while
\n169<\/span>
\nin the\tcase of\t workmen of  Metro Theatre  these will be no
\nsuch linkage  which would  be contrary\tto normal uniformity
\nwhich is  always desirable  in one and the same industry. We
\nfind considerable  force in this contention urged by counsel
\nfor the\t appellant Union. On the other hand, counsel for the
\nCompany pointed\t out that  the aforesaid award of Shri Tambe
\nin Reference(VA)No.  1 of  1979 dated June 27, 1980 is under
\nchallenge before  the Bombay High Court in Writ Petition No.
\n79 of 1981 at the instance of the management and as such the
\nquestion whether dearness allowance in the Cinema Exhibiting
\nIndustry should\t be linked  with the cost of living index is
\nstill pending consideration before the High Court. Moreover,
\nhe urged  that there  are certain  peculiar features  of the
\nCinema Exhibiting  Industry by\treason of  which it would be
\ninappropriate to  link the  dearness  allowance\t payable  to
\nworker in  that industry  with the cost of living index. For
\ninstance,  he\tpointed\t out,\tthat  unlike   manufacturing
\nconcerns. there is little scope for enhancing the profits in
\nCinema Exhibiting  Industry inasmuch as the principal source
\nof income  being box-office collection the same is connected
\nwith  and  limited  by\tthe  seating  accommodation  in\t any
\ntheatre. However,  notwithstanding this\t limiting factor the
\nsame adjudicator  has granted  the linkage  in\tcase  of  39
\ncinema houses  in Bombay which shows that other factors must
\nhave weighed  with him\tas outweighing this limiting factor.
\nWe are clearly of the opinion that uniformity on this aspect
\nis highly  desirable in\t one and the same industry. The main
\nreason for  the refusal\t to grant such linkage (i.e. linking
\nthe D-A.  with the  cost of living index) having disappeared
\nthe question  will have\t to be\tconsidered afresh. We do not
\nthink that  adequate and sufficient material is available on
\nthe record  of this  case before  us to\t decide\t this  issue
\nsatisfactorily. Further\t it would not be advisable to direct
\nthe parties  before us\tto intervene  in the  matter pending
\nbefore the  High Court,\t for, material which may be peculiar
\nto Metro  Cinema may  have to  be  produced  and  considered
\nbefore the  issue is properly decided. We, therefore, remand
\nthis issue  back to  the Industrial Tribunal for disposal in
\naccordance with\t law with  a  direction\t that  the  Tribunal
\nshould give  opportunity to  both  the\tparties\t to  produce
\nadditional material and after hearing them should decide the
\nsame afresh.  It will be open to the management to raise all
\ncontentions including the contention that dearness allowance
\nshould not be linked with cost of living index but should be
\ngranted on  normal principle of industry-cum-region formula.
\nWe wish\t to make it clear that in case the issue is answered
\nby the\tTribunal in  favour of\tthe company,  the  appellant
\nUnion shall  not raise\tany contentions\t on the\t quantum  of
\ndearness allowance that has been
\n170<\/span>
\nallowed by  the Tribunal  in  its  award  on  the  basis  of
\nindustry-cum-region formula,  for the  quantum aspect of the
\nrevision has  become final  by reason  of the  limited leave
\nthat was granted by this Court while admitting the appeal.\n<\/p>\n
     We shall next deal with the last question pertaining to
\nthe construction  of s. 4(5) of the Payment of Gratuity Act,
\n1972. The  question of\tconstruction  arises  this  way.  It
\nappears that  existing\tscheme\tof  gratuity  in  the  Metro
\nTheatre Bombay\twas as\tper the award in Reference (IT No. 1
\nof 1968\t and the  same had  been modified  by  an  agreement
\nbetween\t the   parties\tin  this  Court,  which,  the  Union
\ncontended, had\tbecome extremely  inadequate and  desired to
\nhave a\tmore beneficial\t scheme\t in  some  respect  for\t its
\nworkers. Counsel for the Union urged that it was open to the
\nTribunal to give more benefits than were available under the
\nscheme contemplated  by the  Act and in that behalf reliance
\nwas placed  on s.  4(5) of  the Act. Counsel for the Company
\ncontended  the\texpression  ‘award’  in\t s.  4(5)  meant  an
\nexisting award\tand as\tsuch if\t under\tthe  existing  award
\nbetter terms  were given  to the employees these will not be
\naffected. It  was also urged that the Act was exhaustive and
\nwas intended  to ensure\t uniform payment  of gratuity to the
\nemployees throughout  the country. The Tribunal accepted the
\ncontention of  the Management  and held that it could not go
\nbeyond the  scheme contemplated\t by the\t Act, and, therefore
\ndirected that  the gratuity  scheme as\tper  the  Act  shall
\nprevail subject\t to the\t modifications arrived\tat under the
\nterms of settlement, if any, if they were more beneficial.\n<\/p>\n
     Counsel for the appellant Union urged before us that no
\nstandardisation of  any gratuity  scheme was contemplated by
\nthe Act\t as was\t clear from the express provisions contained
\nin s.  4(5) and\t s. 5  of the Act and that enactment being a
\nbeneficial piece  of legislation s. 4(5) should be construed
\nin  favour   of\t the  employees\t and  that,  therefore,\t the
\nTribunal’s view\t that it could not grant anything beyond the
\nscheme contemplated  by the Act was erroneous. In support of
\nsuch construction  reliance was\t placed\t upon  this  Court’s
\ndecision in  Alembic Caemical  Works  Company  Ltd.  v.\t Its
\nWorkmen<\/a> where  a similar  provision under  the Factories Act
\nwas construed as conferring power on the Tribunal to fix the
\nquantum
\n171<\/span>
\nof leave  on a\tscale more  liberal than the one provided by
\nthe Act. We find considerable force in this submission.\n<\/p>\n
     Section 4(1)  of the  Act provides\t that  the  gratuity
\nshall be  payable to  an employee  on the termination of his
\nemployment after  he has rendered continuous service for not
\nless than  five years-(a)  on his  superannuation, or (b) on
\nhis retirement\tor resignation,\t or  (c)  on  his  death  or
\ndisablement due\t to accident or disease; sub-s. (2) provides
\nthat for  every completed year of service or part thereof in
\nexcess of  six months, the employer shall pay gratuity to an
\nemployee at  the rate  of fifteen  days’ wages\tbased on the
\nwages last  drawn by  the employee  and sub-s.\t(3) provides
\nthat the amount of gratuity payable to an employee shall not
\nexceed 20 months’ wages. This is the main scheme of gratuity
\ncontemplated by\t the Act.  Then comes  sub-s. (5) which runs
\nthus:\n<\/p>\n
\t  “5. Nothing in this section shall affect the right
\n     of an  employee to\t receive better\t terms\tof  gratuity
\n     under any\taward or  agreement  or\t contract  with\t the
\n     employer.”<\/p><\/blockquote>\n
     The question  for consideration  is whether  expression
\n‘award’ occurring  in the  above provision means an existing
\naward or would include any award whatsoever to be made by an
\nadjudicator under  the Industrial Disputes Act. In the first
\nplace there  is nothing\t in the\t provision which  limits the
\nexpression ‘award’.  Secondly, it cannot be and was not that
\nunder the  above provision a gratuity scheme obtaining under
\nan existing  agreement or contract could be improved upon by
\na fresh agreement or fresh contract between the employer and
\nthe employee  and if  that be  so there is no reason why the
\nexpression ‘award’  should be  construed as  referring to an
\n‘existing award’  and not  to include a fresh award that may
\nbe made\t by an\tadjudicator or an Industrial Court improving
\nin favour  of the  employees the  scheme obtaining under the
\nAct or the existing award. Thirdly, the very fact that under
\nthe above  provision  better  terms  of\t gratuity  could  be
\nobtained by  employee by  an agreement\tor contract with the
\nemployer notwithstanding  the scheme  of gratuity  obtaining
\nunder the  Act clearly\tsuggests that  no standardisation of
\nthe gratuity  scheme contemplated by the Act was intended by
\nthe Legislature.  This also  becomes amply  clear  from\t the
\nprovisions of  s. 5  which confer power upon the appropriate
\nGovernment to  exempt establishment to which the Act applies
\nfrom operation\tof the\tprovisions of  the  Act\t if  in\t its
\nopinion the  employees in such establishment, are in receipt
\nof gratuity  benefits  not  less  favourable  than  benefits
\nconfer-\n<\/p>\n
172<\/span><\/p>\n
red under  the Act.  Therefore, on  true construction we are
\nclearly of the view that the expression ‘award’ occurring in
\nthe above provisions does not mean and cannot be confined to
\n‘existing award’  but includes\tany award that would be made
\nby an  adjudicator wherein better terms of gratuity could be
\ngranted to  the employees  if the  facts  and  circumstances
\nwarrant such  grant. It\t is true,  as has  been observed, by
\nthis Court  in State of Punjab v. Labour Court Jullundur and
\nOrs.<\/a> that the Act enacts a complete Code containing detailed
\nprovisions covering all essential features of the scheme for
\npayment of  gratuity. But  it is  also clear that the scheme
\nenvisaged by  the enactment  secures  the  minimum  for\t the
\nemployees in that behalf and express provisions are found in
\nthe Act\t under which  better terms  of gratuity\t if  already
\nexisting are  not merely preserved but better terms could be
\nconferred on  the employee  in future.\tIn other  words, the
\nview taken  by the  Tribunal that it could not go beyond the
\nscheme of  gratuity  contemplated  by  the  Act\t is  clearly
\nerroneous.\n<\/p>\n
     The decision  of this  Court in  Alembic Chemical Works
\nLimited (supra),  which was  under the\tFactories Act,\talso
\nlends support  to such beneficent construction. In that case
\nthe Industrial\tTribunal had  fixed the\t quantum  of  leave,
\nprivilege and sick, for the staff of a manufacturing concern
\non a  scale more  liberal than\tthe one\t in  force  for\t the
\noperatives of  the same\t concern.  In  also  made  necessary
\ndirection regarding  accumulation of such leave. The quantum
\nof leave  so fixed  by the  Tribunal  was  larger  than\t the
\nquantum of leave prescribed under the provisions of s. 79(1)
\nof the Factories Act. It was contended that s. 79 of the Act
\nwas exhaustive and had self contained provisions with regard
\nto the granting of annual leave with wages to the employees,
\nthat it had the effect of introducing standardisation in the
\nmatter of leave and that no addition to the said leave could
\nbe made\t either by  a contract\tor by  an award.  This Court
\nnegatived the  said contention\ton the\tlanguage of s. 79(1)
\nitself. Additionally,  provisions of  s. 78 were relied upon
\nwhich recognised  exemptions to\t the leave  prescribed by s.
\n79(1). Section\t78(1) provided\tthat provisions\t of  Chapter
\nVIII including\ts. 79(1)  shall not operate to the prejudice
\nof any\tright to  which a  worker may be entitled “under any
\nother law  or under  the terms\tof any\taward, agreement  or
\ncontract of service”, and a proviso to this sub-section laid
\ndown that  when such award, agreement or contract of service
\nprovided for  longer annual  leave with\t wages than provided
\nunder the
\n173<\/span>
\nChapter, the  worker shall  be entitled\t only to such longer
\nannual leave.  It was  contended that  the  expression\t“any
\naward” in s. 78(1) applied only to existing award. The Court
\nnegatived this\tcontention and\theld that the contention was
\nplainly inconsistent with a fair and reasonable construction
\nof the said provision and that s. 78(1) protected not merely
\nawards, agreements or contracts of service then existing but
\nalso those  that would\tcome into  existence later.  In\t the
\ninstant case  also we  are clearly  of the  opinion that the
\nphrase “under  any award,  agreement or\t contract  with\t the
\nemployer” occurring  in s.  4(5) is intended to cover future
\nawards, agreements  or contracts  with\tthe  employer  since
\nexisting  better  terms\t of  gratuity  are  intended  to  be
\nprotected by  issuance of  a notification  under s. 5 of the
\nAct.\n<\/p>\n
     We may  also state\t here that in the other adjudication
\ndone by\t the same  adjudicator (Shri B.B. Tambe) as the Sole
\nArbitrator in  Reference (VA)  No. 1  of 1979  (M\/s. Alankar
\nTheatre and  38 other theatres v. The workmen employed under
\nthem) he has come to a contrary conclusion and has held that
\nunder s.  4(5) of the payment of Gratuity Act an adjudicator
\ncan  grant   better  terms  of\tgratuity  and  has  actually
\nproceeded to  grant better  terms of gratuity to the workmen
\nemployed in  all the  theatres concerned  in that Reference.
\n(Vide para  140 of  the\t Award).  Realising  this  position,
\ncounsel for  the company  before us fairly conceded that the
\nemployees in  the Metro\t Cinema would  also be\tentitled  to
\nbetter terms  of gratuity-the  same as given to employees in
\nother cinema  Houses. Counsel  for the\tparties,  therefore,
\nagreed before  us that\tgratuity scheme\t as set\t out by Shri
\nTambe in  para 140  of his  award dt. 27-6-1980 in Reference
\n(VA) No.  1 of\t1979 should  apply to  the workmen  of Metro
\nCinema. We  accordingly, direct\t that the gratuity scheme as
\nset out\t in paragraph  140  of\tthe  above  award  would  be
\napplicable to  the workmen  of Metro Cinema with effect from
\n1.1.1977.\n<\/p>\n
     In the result the appeal is partly allowed on the point
\nof gratuity  as indicated  above  and  on  the\tquestion  of
\nlinkage the  appeal is remanded to the Tribunal for disposal
\naccording to  law as  directed above.  The appeal as regards
\nretrospectivity is dismissed.\n<\/p>\n
     In the  circumstances the\tparties will  bear their own
\ncosts.\n<\/p>\n
V.D.K.\t\t\t       Appeal allowed in part.\n174<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Workmen Of Metro Theatre Ltd., … vs Metro Theatre Ltd., Bombay on 31 July, 1981 Equivalent citations: 1981 AIR 1685, 1981 SCC (3) 596 Author: V Tulzapurkar Bench: Tulzapurkar, V.D. PETITIONER: WORKMEN OF METRO THEATRE LTD., BOMBAY Vs. RESPONDENT: METRO THEATRE LTD., BOMBAY DATE OF JUDGMENT31\/07\/1981 BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-191397","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nWorkmen Of Metro Theatre Ltd., ... vs Metro Theatre Ltd., Bombay on 31 July, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/workmen-of-metro-theatre-ltd-vs-metro-theatre-ltd-bombay-on-31-july-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Workmen Of Metro Theatre Ltd., ... vs Metro Theatre Ltd., Bombay on 31 July, 1981 - 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