1. This unfortunate controversy between the employer, the second respondent company, and the petitioner who is an employee, arises by reason of an award given by Mr. Thakore, industrial tribunal, which was not as clear in its decision as one would like it to be. The facts which led up to the making of the award are that there was an industrial dispute between the second respondent company and its employees in 1946. That dispute was referred to Sri Harsidhbhai Divatia, and two of the matters in dispute were with regard to privilege leave and paid casual leave. Sir Harsidhbhai made the award on 18 March 1948 and with regard to these two matters in dispute the award was that the employees should have one month's paid privilege leave and ten days' paid casual leave. These provisions were to apply to workers of the company who were monthly workers. With regard to those workers who were daily-rated, the provision was that they should get privilege leave for three weeks and there was no award whatever with regard to the right to have casual leave. Sir Harsidhbhai also awarded that with regard to privilege leave to be given to monthly workers, Sundays and holidays were to be paid for. This award came to an end by efflux of time in March 1949. The employees thereafter gave notice of the termination of this award. There were fresh industrial disputes between the second respondent company and its employees and these disputes were referred to Mr. Thakore for adjudication. Mr. Thakore gave his award on 22 August 1950, and, it may be mentioned that the question of privilege leave and casual leave again arose before him.
2. The question in dispute on this petition is a very narrow one. What did Mr. Thakore award to the employees with regard to the quantum of privilege leave and casual leave? There is no dispute with regard to quantum in one sense, but there is dispute with regard to whether Sundays and holidays are to' be included in the quantum awarded by Mr. Thakore. It is rather a significant fact that the second respondent company continued to give paid privilege leave and casual leave to its workers including Sundays and holidays. In other words the company acted as if the award of Mr. Thakore did direct that Sundays and holidays were to be paid for when they were enjoyed along with privilege or casual leave. This practice of the company was discontinued in February 1951 and the company started deducting pay for Sundays and holidays when privilege or casual leave was taken by its workers. In other words, although the actual leave enjoyed by the worker was debited to his leave account, as far as payment was concerned, the leave enjoyed was not fully paid for, but Sundays and public holidays which fell within the leave were deducted. The employees made an application to Mr. Thakore under Section 20(2) of the Industrial Disputes (Appellate Tribunal) Act for computation of the benefits obtained by them under Mr. Thakore's award. Mr. Thakore came to the conclusion that the benefits conferred by him under the award included payment for Sundays and holidays when they fell within the leave enjoyed by the employee. Dissatisfied with the decision the second respondent company appealed to the Labour Appellate Tribunal and the Labour Appellate Tribunal reversed the decision of Mr. Thakore and came to the conclusion that these benefits were not conferred by Mr. Thakore under the award given by him. The question that we have to consider on this petition is whether the Labour Appellate Tribunal was justified in interfering with the decision given by Mr. Thakore.
3. Turning to Section 20(2) of the Industrial Disputes (Appellate Tribunal) Act, it provides:
Where any workman is entitled to receive from the employer any benefit under an award or decision of an industrial tribunal which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to the rules made under this Act, be determined by that industrial tribunal, and the amount so determined may be recovered as provided for in Sub-section (1).
Before we deal with the true construction that must be placed upon this sub-section, we would like to refer to a point of practice. In civil courts when a judgment is given a decree is drawn up in terms of that judgment. The judgment contains the reasoning of the judge. The decree contains the operative part which can be enforced and. executed. Unfortunately, in industrial legislation there is no provision for drawing up an award which can be enforced and executed. The award consists of the judgment given by the tribunal and parties have got to decide for themselves what is the operative part which can be enforced and executed. Not only is there no formal decree drawn up as in civil courts, but we find that in many cases at the end of the award after the matter has been dealt with and arguments have been considered and reasons given, the tribunal does not set out specifically the operative part of the award. An arbitrator who constitutes a domestic tribunal, when he gives his award, may or may not write a judgment, but he explicitly awards a particular sum in favour of one party or the other, or awards a particular relief in favour of one party or the other. But in many awards that we have come across there is no such specific awarding by the tribunal in favour of the employees. Unfortunately, Mr. Thakore's award suffers from the same infirmity and the whole trouble has arisen because he has failed expressly to state at the end of his award what benefits he was conferring upon the employees.
4. It is very significant again that the legislature has provided that the very tribunal which gives the award or decision must decide what are the benefits to which the workmen are entitled under that, award. This reason for this is obvious. The authority that gives the judgment is in a much better position to construe that judgment than an outside authority. It is true, as pointed out by Mr. Seervai, that Section 20(2) does not confer upon the tribunal the power to review its own judgment; it does not confer upon it a power to rectify its judgment, nor does it confer upon it a power to supplement its judgment. It is true that we must bear in mind that a non-compliance with an award has been made penal by Section 29 of the Act and therefore we must not permit Section 20(2) to be construed in such a manner as to convert what might be an innocent act into a penal act. But with all that we must not also overlook the fact that the tribunal that gave the judgment is in the best position of construing that judgment and giving effect to that judgment and determining the rights of parties under that judgment. Under these circumstances an appellate authority must be very slow and very loath to interfere with the view taken by the tribunal as to what its judgment was with regard to an industrial dispute. As we are now being asked to set aside the order of the Appellate Tribunal, what we must decide is whether in view of what we have just said the Tribunal was justified in interfering with the interpretation put by Mr. Thakore upon the judgment that he has delivered. There must be a very strong case indeed to justify the Appellate Tribunal for interfering with the decision of the industrial tribunal and unless we are satisfied that such a strong case exists it would be our duty to interfere with the decision given by the Appellate Tribunal.
5. Now let us turn to the facts which will make clear what the controversy between the parties is. Turning to the award of Mr. Thakore, and dealing first with privilege leave, in Para. 86 Mr. Thakore sets out the provision in the Divatia award that privilege leave to daily-rated workers according to the company's scheme should be with pay on Sundays. The grievance of the union was that there should be no distinction between the clerical staff and the operatives with, regard to privilege leave. There was a distinction, in that, as already pointed out, the clerical staff which are mostly monthly-rated, had four weeks' privilege leave and the operatives, most of whom are daily-rated, had only three weeks' privilege leave. Mr. Thakore considered this grievance of the union and in Para. 88 after considering the Central Pay Commission's recommendations He says that he would not be justified in awarding a higher leave privilege to the operatives employed in the company, and further on he says that under the circumstances the demand for a higher privilege leave for workmen is rejected. Then he goes on to Bay," I would only like to make one change," and the change that he makes is that the workers should not be required to exhaust their privilege leave before they were given sick; leave. Finally, in Para. 90 he says:
Accordingly I direct that the privilege leave to the credit of a workman need not be exhausted first before sick leave could be availed of. As regards clerical staff, the privilege leave awarded by Sri Divatia is quite fair and should continue.
Mr. Seervai's contention is that all that this award directs is that with regard to operatives and daily-rated workers privilege leave need not be Exhausted first before sick leave could be availed of. According to him there is no award with regard to Sundays being included for the purpose of privilege leave. In our opinion, that is taking too narrow a view of what Mr. Thakore decided. It is indisputably the fact that the Divatia award had conferred certain privileges upon the workers with regard to the inclusion of Sundays and public holidays. The employees were satisfied with that privilege. The employers also did not cavil against that privilege being given to the employees. The employees wanted something more, as pointed out, with regard to the quantum of leave. That something more was rejected by Mr. Thakore, but he agreed that there should be some of change from the existing practice in that sick leave should not necessarily be exhausted before privilege leave was taken by the workers. In our opinion, it is difficult to accept Mr. Seervai's contention that the only result of this award was that the existing practice was continued, but that practice was not embodied in the solemn form of an award. It is impossible to take the view that Mr. Thakore could ever have intended that the existing practice on which his award is based, an existing practice which the award recognizes, should be allowed to continue as it was in the sense that it would be open to the employer to discontinue that practice and the result of the award would be that the employer would not be bound by the terms of the existing practice. The award must be read as a whole and reading it as a whole on this part it is clear that Mr. Thakore intended to bind the employers by the existing practice which practice gave effect to the award given by Sir Harsidhbhai Divatia. If that was the clear intention, the only question is whether there is anything in the language used by this award which could lead us to the inference that that intention has not been given effect to by the clear language of the award. It is perfectly true that if the intention of Mr. Thakore remained merely in the stage of intention and has not been translated into adequate and appropriate language, we can only express our unhappiness at the result and leave the matter where it is. But if it is possible to take the view that by a necessary implication if not by express intendment the award must be construed to mean that Mr. Thakore awarded what he recognized was the practice followed pursuant to the decision given by the Divatia award, then we see no reason why the view taken by Mr. Thakore should be disturbed by the Appellate Tribunal. On this part of the case when we turn to Mr. Thakore's judgment when the application was made under Section 20(2), he pointed out that in the written statement the company stated that it did not see any justification for any alteration in its present leave rules which were extremely liberal, and refused each and every contention of the union. In other words, the company was quite prepared and quite happy to adhere to the leave rules as they existed and it is patent that the company would not have objected to those leave rules being embodied in the form of the award. In Para. 8 of his judgment Mr. Thakore points out:
It Is true that I have not used, in my award, express words to the effect that the existing privilege leave will continue as before or that I confirm the privilege leave existing. However, in my opinion, even in the absence of anything else, in view of the fact that the rejection of the demand for a higher privilege leave was conditioned by the fact of certain leave privileges prevailing at the time, those prevailing conditions would by necessary implication become part of the award.
6. Turning next to casual leave, as pointed out, the Divatia award gave ten days' casual leave to the clerical staff, but no casual leave was granted to manual workers. It appears that although there was no award made with regard to this by Sir Harsidhbhai Divatia, the company till February 1951 gave seven days' casual leave to its manual workers and in these seven days Sundays and public holidays were included. Before Mr. Thakore the labour union demanded uniformity of casual leave for clerical staff and manual staff and they asked for raising the casual leave given to the clerical staff from ten days to fifteen days and made the same demand with regard to the manual staff. Mr. Thakore in his award observes:
The existing provision in respect of casual leave seems to be quite fair and compares favourably with privileges in this respect granted by other companies. The demand for an increase of casual leave is therefore rejected.
Therefore, what was rejected was the demand made by the employees for uniform casual leave. What was accepted by Mr. Thakore as the proper benefit for the employees was casual leave for seven days with Sundays and public holidays included as was in fact done and carried out by the company. Here also, in our opinion, it is taking much too narrow a view of the construction of this award to suggest that all that Mr. Thakore did was to reject the additional privilege claimed by the employees and that he made no award at all with regard to the existing practice. When there is an industrial dispute, that dispute has to be settled and it has to be settled by a binding award which continues in operation for the time fixed by the award itself or under the provisions of the law. It is very difficult to accept the view that Mr. Thakore left the employer at large and left it to its sweet will whether to confer this privilege upon the employees or not. It is true, and obviously true, that there are no express words conferring this benefit upon the employees. But it is precisely because there are no express words that the difficulty arises, and again turning to Mr. Thakore's judgment on the application under Section 20(2), he points out in Para. 12:
It is true that in this case also I have not expressly stated in my award that the existing casual leave provision shall continue.. However, there is no doubt that the basis for the rejection of the union's demand was the statement made to me by the company as to what the then existing privileges were. The basis therefore in my opinion becomes as much part of my award.
And he further observes:
It is clear that thereby I have confirmed that seven days' casual leave should be granted.
It seems to us rather difficult to understand the position taken up by the employer that although before Mr. Thakore it met the demands of the employees by rightly relying on a practice which according to the employ yet gave to the employees very fair treatment, It should now resent the suggestion that that practice was embodied in the award and became binding upon it. It is clear that if the practice was not established, if the employer had not conceded that the employees were going to be given leave according to the practice, the matter would have been adjudicated upon by Mr. Thakore and Thakore would have come to his own conclusion on merits. What we must not overlook in this case 1b that we have Mr. Thakore's own definite unambiguous opinion, an opinion which Is emphatic and categoric, that he did intend to award to the employees what the employees are now claiming. Mr. Thakore baa also explained why he did not state in express terms the benefits he wanted to confer upon the employees, and therefore the narrow question that we have to decide on this petition is: Is the award which Mr. Thakore was construing and which was made by himself, incapable of the construction which Mr. Thakore has put Upon it? Can it be said that the view taken by Mr. Thakore in his judgment on the application under Section 20(2) is so unreasonable and be perverse that the Appellate Tribunal should interfere with that opinion?
7. Turning to the decision of the Labour Appellate Tribunal, the Tribunal has reversed Mr. Thakore on what seems to us one argument which seems to have found favour with the Tribunal, and in fairness to the Tribunal we will reproduce that argument:
In other words, the argument is that, because the existing conditions of service formed that reason for the decision of the adjudicator rejecting the demand of the workmen, these existing conditions must themselves be held to be a portion of the award. There is no authority for this proposition; a distinction has always been recognized between the decision in a case and the reasons upon which that decision is based.
With respect to the Tribunal, we do not think the Tribunal is quite fair to Mr. Thakore when it suggests that this is the only reason Why Mr. Thakore has come to the conclusion that the award passed by him, did contain the particular benefits which the employees were seeking. In our opinion, the Tribunal has failed, again with respect, to consider the principle underlying Section 20(2) and the policy of the legislature in enacting that section. As we said before, the Tribunal should have realized that it was interfering with the Construction put by Mr. Thakore upon his own decision, and the view clearly and strongly formed by him was not only that he intended to confer this particular benefit upon the employees, but that by necessary implication that intention formed part of the award. We could have understood if the Tribunal had said that the reasoning of Mr. Thakore was perverse or arbitrary and that it was impossible to take that view of the award. But the Tribunal has interfered with the decision of Mr. Thakore merely because the Tribunal has taken a different view of the award from the view taken by Mr. Thakore. That in our opinion is not sufficient to justify the interference by the Labour Appellate Tribunal. A much stronger case should have been made out by the employer in order to invoke the appellate authority of the Tribunal.
8. Mr. Seervai has drawn our attention to the bona fides of the employer by pointing out that on merits it is very difficult to sustain the award of Mr. Thakore in the sense that what he has awarded to the employees runs counter to any well-settled principle of leave rules observed by Government or by industry. He tells us that the reason why the employer company discontinued the practice in February 1951 was that it found that by including Sundays and holidays in casual leave and privilege leave it was paying to its employees on leave more than the employees would receive if they actually worked for the same period. We do not wish to suggest that the employer company has been guilty of mala fides or that it has acted in deliberate defiance of the award made by Mr. Thakore. But we must also look at the matter from the point of view of the employees. The employees enjoyed certain privileges under the Divatia award. Those privileges were continued after the award was put an end to. Mr. Thakore gave his award and after that award also the same privileges continued. In our opinion, it seems clear that both sides were under the impression that the benefits with regard to leave were conferred upon by the employees by Mr. Thakore's award and suddenly these were discontinued by the employer. Therefore, what the employees went to obtain from Mr. Thakore was what they had been enjoying for a long time and what they thought and the employer thought was the benefit conferred under the award itself. Therefore, in deciding what Mr. Thakore has decided, he has done justice to the employees, and it seems to us that in setting aside the decision of Mr. Thakore there would be miscarriage of justice because the employees would feel that they have been deprived of a privilege which to them is important, which they had enjoyed, and which they were led to believe they enjoyed" legally under Mr. Thakore's award. We have had occasion to point out in the past that incases which come under the industrial law and where the main consideration Is that there should be peace between employer and employee, it is wrong to take too technical a view of the rights of the parties, and with a very great respect to the Tribunal, in our opinion, in setting aside Mr. Thakore's decision it has taken an extremely technical view of the construction of the award. Mr. Thakore was influenced to a considerable extent by considerations of justice and in our opinion those considerations are certainly not out of place in any system of law, much less when we are dealing with Industrial law.
9. We will therefore set aside the order passed by the Labour Appellate Tribunal and restore the order passed by Mr. Thakore. The second respondents must pay the costs of the petition.