(Delivered by Rajagopalan, J.)

The petitioner, representing the Management of a Match Factory at Madras applied under Art. 226 of the Constitution for the issue of a writ of certiorari to set aside the award of the Industrial Tribunal, Madras, dated 25th July 1957 in I. D. No. 9 of 1957. In view of the peculiar feature of this application that it was filed after the petitioner had failed to obtain leave of the Supreme Court to prefer an appeal under Art. 136 of the Constitution against the award in I. D. No. 9 of 1957 the application came up before a Division Bench even at the initial stage, when a rule nisi was ordered to issue.

Over 1600 workmen were employed in the petitioner's factory, in addition to the basic wages each of the workmen was given (1) dearness allowance calculated at two annas in the rupee on the basic wages; (2) a grain allowance of Rs. 1-9 0 in cash; and (3) a store purchase quota. The last enabled a workman to purchase at the stores the factory maintained essential and other commodities at prewar prices upto the limit of the quota allotted to him. The minimum quota allotted to each of the workmen was Rs. 13-1460 of the workmen received this minimum quota. The quota allotted to 202 others who belonged to the artisan class, ranged from Rs. 14 to Ra. 26-1 he employer and the employees both preferred a wage structure which provided for cash payments of basic wages and dearness allowance. That question was referred to the Industrial Tribunal at Madras (I. D. No. 6 of 1953). The award of the Industrial Tribunal in I. D. No. 6 of 1953 directed payment of dearness allowance on the basis of the cost of living index calculated at 4 annas 1 pie per point. With the index at 355 the dearness allowance payable under the terms of the award amounted to Rs. 64.9-0 a month. Some other features of the award have to be noted even at this stage. The cash dearness allowance was payable to all workmen. Secondly) what all the workmen lost thereafter was the right to the basic minimum quota of Rs. 13. We have pointed out that 202 of the workmen were in receipt of quotas above Rs. 13. How each of them should be compensated by the management for the loss of that excess quota was not the subject matter of the award in I. D. No. 6 of 1953. Even before the Industrial Tribunal) the Management offered to devise later an acceptable formula for the loss of the quota above the minimum of Rs. 13. What the Management stated in the counter statement it filed in I. D. No. 6 or 1953 was:

“Men who are getting varying stores quotss ranging from Rs. 14 plus Rs. 1-9-0 to Rs. 26 plus Rs. 1-9-0 are mostly time-rated artisans who are given increased stores quota for efficiency. Those who are affected by the proposed concession will be compensated in some manner according to the merits of each case, except by way of cash dearness allowance.”

That even that undertaking should be made part of the award was one of the claims of the workmen in the appeal that they filed against the award in I. D. No. 6 of 1953. That appeal however failed. One other feature to be noted is that the cash dearness allowance) which did away with the stores purchase quota upto Rs. 13, was based on the cost of living index and not on the evaluation of the lost quota right in terms of money.

Even before the disposal of the appeal preferred by the workmen against the award in I. D. No. 6 of 1953, in May 1954 itself the Management took steps to implement the assurance it had given during the pendency of that dispute, to compensate the workmen for the loss of the quota above the basic minimum of Rs. 13. The Management claimed that there were 202 workmen in that category. Eventually the workmen claimed that there were 222 such workmen. It may not however be necessary for us to fix that number with precision. The proposal of the Management was embodied in its memorandum dated 6th May 1954. It consisted of two parts. The first part which provided the basis for the evaluation of the quota is best set out in the words of the Management:

“In pursuance of the above undertaking we have worked out the value received by workers from those who purchased the stores and added the cash dearness allowance paid to them and against this total amount a comparison was made against the cash dearness allowance that was paid to them for November 1954. The cash value of re-sale was assessed as follows;

(a) First Rs. 10 at Rs. 3-8-0 per rupee.

(b) Rs. 11 to Rs. 15 at Rs, 3 per rupee.

(c) Rs. 16 and above at Rs. 2-8-0 per rupee.

We will quote an example of the actual working of a worker who drew Rs. 14 stores quota plus Rs. 1-8-0 plus Rs. 1-0-0;

First Rs. 10 at Rs. 3-8-0 per pupee … Rs. 35-0-0 Rs. 11 to Rs. 15 at Rs. 3 per rupee Rs. 15-0-0 Rs. 1-8-0 at Rs. 2-8-0 per rupee Rs. 3-12-0 Rs. 53-12-0

Against this cash value which he received from the traders we are now paying Rs. 64-9-0 or Rs. 10-13-0 more. Therefore this worker has not lost anything but is benefited to the extent of Rs. 10-13-0 “.

The basic assumption of this proposal appears to have been that a workman did not utilise the full store purchase quota to purchase articles for his consumption alone, but that articles purchased at the concessional pre-war rates were subsequently sold at market prices or loss, and further that this abuse of the quota system was likely to be more pronounced in the case of the workmen who were in receipt of a quota above the minimum of Rs. 13. Based on the proposal set out above for evaluating the loss of the quota in excess of Rs. 13 was the second part of the proposal, to quantify the amount of compensation with a slab basis. To quote again the words of the Management:

“In terms of this calculation there are only 29 time-rated workers who have lost amounts ranging from annas seven to Rs. 24-11-0. In order to find a common factor and to give the benefit even to those who lost smaller amounts, we have evolved the following three slabs, viz.,

i. Those who lost from 7 anaas to Rs. 5 … Rs. 2.

ii. Those who lost from RS. 5 to Rs. 10 Rs. 4.

iii. Those who lost from Rs. 10 and over … Rs. 8.

Thus, according to the Management only 29 of its workers would be entitled to any further compensation besides the dearness allowance they had already become entitled to under the award in I. D. No. 6 of 1933. From the report of the Assistant Commissioner of Labour, who acted as the Conciliation Officer dated 20th December, 1954, it would appear that at that stage the workmen accepted the basis of evaluation proposed by the Management, but that they only wanted compensation at rates higher than those proposed by the Management. The Conciliation Officer reported to the Government on 20th December, 1954:

“I made certain recommendations regarding compensation to those who had increased stores quota formerly. The parties agreed before me that this item should be treated as settled on the following terms, namely, those who lost from 7 annas to Rs. 5 should be compensated to the extent of Rs. 3. Those who lost from Rs. 5 to Rs. 10 to the extent of Rs. 7-8-0 and those who lost over Rs. 10 should be compensated to the extent of Rs. 12-8-0.”

The Management claimed that it implemented this agreement by issuing orders on 28th December, 1954 to pay the workmen in accordance with the modified slabs of compensation. In his letter dated 24th June, 1955, the Secretary of the Workmen's Union informed the Management:

“We have agreed to the Conciliation Officer's recommendation in regard to compensation for stores quota.’’

In that letter and in the next dated 21st November, 3955 the Secretary claimed that there were yet some more workmen who had to be compensated, apparently on the agreed formula as revised by the Concilition Officer. In his further letter dated 16th December, 1955, the Secretary referred to the arragement reported by the Conciliation Officer on 20th December, 1954, as “the Conciliation Award.”

In his Report to the Government dated 29th April, 1957, the Conciliation Officer traced in some detail the events that preceded the settlement which he claimed to have effected on 20th December, 1954 and

“The statement showing the method of calculation of the loss and the rate at which compensation was to be paid …… was given to the Union, The modification finally suggested by the Conciliation Officer was only in the rate of compensation and not in the method of arriving at the loss. The matter was settled when the parties accepted the modification. When the Union complained in November 1955 regarding the payment of compensation to four workers, it proceeded on the basis that the others had already been paid or were not not eligible for the compensation. It is not now open to the Union to agitate for a modification of the method of calculation of the loss to be compensated. The demand should be considered belated and not in accordance with the agreement.”

That, of course, set out only the point of view of the Management which the Conciliation Officer contrasted with that put forward by the workmen; and he eventually reported that it was not possible to bring abount a settlement between the parties.

On 14th May, 1957, the Government referred to the Industrial Tribunal as an industrial dispute for adjudication the question of the “calculation of the loss sustained by the workers who were formerly drawing stores quota of more than Rs. 13” (The quotation is from the head note of the award in I. D. No. 9 of 1957).

During the proceedings before the Industrial Tribunal in I. D. No. 9 of 1957, the petitioner pleaded that an agreement had been arrived at between the petitioner and the workmen before the Conciliation Officer. It should be noted at the outset that this alleged agreement did not conform to the requirements of S. 12 (3) of the Industrial Disputes Act, and it did not therefore come within the scope of a binding and enforceable settlement within the scope of Sa. 18 and 19 of the Act. The (actual existence of an agreement was however pleaded, and as that was denied, the Tribunal had to decide whether there had been any agreement, and if so what its terms were. The agreement pleaded by the Management connsisted of two parts: (1) the method to be adopted to evaluate the loss of quota rights above the minimum of Rs. 13, which minimum had merged in the cash dearness allowance, and (2) the rates at which compensation should be paid for that evaluated loss. The petitioner desired to examine the Conciliation Officer to prove that there had been an agreement on both the points. The Tribunal in rejecting that request recorded:

“Then Mr. Doraiswami (Counsel for the Management) contended that the method of calculation which he is contending for had already been the subject matter of agreement between the parties before the Conciliation Officer and in fact he wanted to have that officer examined as a witness. But having regard to the fact that the agreement has been recorded by him in some of his letters and it is only a matter of construction I have not thought it necessary to examine that officer.”

The Tribunal eventually found:

“It will therefore be seen that except for the arrangement fixing the limits in regard to the payment of the loss there was no agreement between the parties to the method of calculation or assessment of the loss incurred by these employees.”

The award of the Tribunal was:

“With reference to the large body of employees who drew the minimum store quota of Rs, 13 the award passed by the Tribunal in the previous reference I. D. No. 6 of 1953 will govern. With reference to the other employees, limited in number, who were drawing over and above Rs. 13 store quota, their loss must be compensated by the company in terms of the undertaking they had given in the counter-statement filed in the previous reference. The loss will be determined in terms of the store quota, that is to say, if the employee was drawing say Rs. 14 or Rs. 15 then his loss will be Re. 1 or Rs. 2 store quota by deducting the minimum Rs. 13. That will be his loss in terms of the store quota, but in terms of cash at the post-war price, that loss must be multiplied 31 times; that is to say, if the difference in store quota is Re. 1, his loss would be Rs. 3-8-0, if his loss is Rs, 2 store quota his loss would be Rs. 7. Having thus ascertained the loss, what is the amount of compensation to be paid to him will be determined in terms of the agreement between the parties before the Conciliation Officer in December 1954, that is to say, if the loss is between seven annas and Rs, 5 the maximum compensation payable will be Rs. 3 and if the loss is between Rs. 5 and Rs, 10 the maximum compensation will be Rs. 7-8-0; and if the loss should exceed Rs. 10 the maximum compensation would be Rs. 12-8-0. In this connection it is necessary to clarify one point, namely, that within the ambit of those limits compensation payable to the employee will always be the actual loss sustained by him, but subject to the maximum mentioned in each of these limits; that is to say, within the first group it would not mean that if the loss is 7 annas he would get a compensation of Rs. 3. It means he will get only a compensation of annas 7 ………..”

The main ground on which the learned Advocate General who appeared for the petitioner, challenged the validity of the award was that the Tribunal had denied the petitioner a real and effective opportunity to prove his case as a whole. Linked up with that was the further contention, that that denial resulted in a misconstruction of the scope of the agreement which the Tribunal limited to the quantification of the compensation, independent of the evaluation which was also to serve as the basis of that quantification. The learned Advocate General pointed out that it was of course open to the Tribunal to base its award on factors other than the agreement even if the agreement pleaded by the petitioner was factually true. As we have already pointed out, that agreement was not reduced to writing and signed by both the parties, the Management and the workmen, and it did not therefore satisfy the requirements of S. 12 (3) of the Act. In that case both the sides would have had to be given opportunities to place the evidence on record on which could be based findings on both the points in dispute, the basis of the evaluation and the quantum of compensation. There was no occasion for the petitioner to seek such an opportunity, because attention was focussed at the stage only on the question whether there had been any agreement and if so what its terms were. The learned Advocate General submitted that if factually at least the petitioner proved that the agreement covered both the points the Tribunal would have had to consider whether the whole of that agreement, both parts thereof, could be made the basis of its award, or whether the award should be independent of that agreement or any part thereof. It was on the ground that there had been no agreement about the method of evaluation that the Tribunal directed that every rupee of the quota above Rs. 13 should be valued at a flat rate of Rs. 3-8-0. The learned Advocate General complained that the petitioner had not been given a real and effective opportunity to prove that the agreement covered also the method of evaluation, and the evidence of the Conciliation Officer would have helped the petitioner to establish his case. The probative value of that evidence of course was wholly for the Tribunal to determine but it erred in altogether shutting out the evidence. Such were the arguments of the learned Advocate General.

We shall deal later with the contention of the learned Counsel for the respondents-workmen that the petition was not maintainable) and that it should be dismissed on that basis without going into the merits of the contention put forward by the petitioner. Independent of that line of argument the learned Counsel for the respondents urged that there was material on which the Tribunal could find that while there was no agreement on the question of the method of evaluation there was an agreement over the rates at which the loss after a proper evaluation should be compensated.

The Tribunal of course was not bound by the strict rules of procedure and evidence applicable to a civil Court. If, for example, the agreement in question had been reduced to writing and signed by the parties thereto, even the stricter procedure applicable to the civil Courts would have justified, save in exceptional circumstances, for which the law of evidence provides, a refusal to permit parole evidence to interpret the terms of the agreement. There was no such formally drawn up agreement in the present case. The existence of the agreement and the terms thereof had to be gathered from the correspondence, letters written by the Management, Union and the Conciliation Officer. Whether in fact an agreed method of evaluation was one of the terms of that agreement was what the Tribunal had to decide. The question at issue was thus one of fact and not the interpretation of a clause the existence of which was itself not in dispute. The contention of the learned Advocate-General appears to us to be well founded that that the petitioner had not been given a real and effective opportunity to prove a fact pleaded by the petitioner, that the method of evaluation had never been in dispute during the proceedings before the Conciliation Officer, and that both parties had accepted at that stage the basis of evaluation proposed by the Management. Of course, as we pointed out even if the Tribunal was satisfied that in fact the method of evaluation had been agreed upon at that stage, it was open to the Tribunal to discard that basis and rest its aware-evaluation at a flat rate of Rs. 3-8-0 per quota rupee on other factors. That was not what the Tribunal did. It recorded a finding that there was no agreement on the method to be adopted for evaluation. That finding was vitiated, because the petitioner was not given an opportunity it was entitled to, to place all the relevant evidence bearing on that point on record. Again we would like to make it clear that we are not concerned with the question, what was the proper method of evaluation. That was wholly for the Tribunal to decide on the material the parties were entitled to place before it. If there had been an agreement, that would have been a relevant factor for the Tribunal to take into account. Was there an agreement, and not its probative value was the first of the questions to he decided. The Tribunal decided that question of fact without giving a real and effective opportunity to the petitioner to prove the case pleaded by it. The refusal to examine the Conciliation Officer amounted in the circumstances of this case to such a denial.

On the finding we have recorded above the petitioner would have been entitled to the issue of a writ of certiorari, had there been no cither factor to be taken into account in deciding whether the petitioner should be given relief under Art. 226 of the Constitution which is essentially discretionary in its scope. That brings us to the question whether the dismissal of the application the petitioner preferred to the Supreme Court under Art. 136 of the Constitution, for the grant of leave to appeal against the award of the Industrial Tribunal, should be viewed in the circumstances of this case as a bar to the grant of the relief, to which the petitioner would have been otherwise entitled ex debito justitiae.

The result of the refusal of leave to appeal under Art. 136 of the Constitution was that there was no appeal. In Venkata Reddi v. Narayana Reddi(1) the learned Judges quoted with approval the observations of Piggot, J. in Balli v. Nandlal(2):

Where an order is appealable only by leave of the District Court or of this Court the memorandum of appeal should always be accompanied by a petition for leave to appeal, and it should be made clear to the Judge sitting to receive petitions that the appeal is not presented as one which lies as of right.’’

When even factually there was no appeal, no question of merger could arise. What the position would have been had the Supreme Court rejected the appeal thereby confirming the award appealed against, does not therefore arise for consideration. The petitioner failed to get leave, and there was no appeal.

The learned Advocate General urged that the rejection of the application for leave could not attract Art. 141 of the Consttution. Even impliedly what was laid down in the award could not be viewed as having been laid down by the Supreme Court.

In discussing the scope of the jurisdiction vested in the Supreme Court by Art. 136 of the Constitution, Mahajan, C. J. said this in Dhaleswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal(3);

“It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the Constitutional provision made in Art. 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule.”

That was re-stated in Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur(4) where Bhagwati, J. stated at page 1003:

“………Art. 136 has vested in this Court exceptional and overriding power to interfere where it reaches the conclusion that a parson has been dealt with arbitrarily or that a Court or Tribunal within the territory of India has not given a fair deal to a litigant.”

in comparing the powers of the Courts under Art. 136 and Art. 226 of the Constitution, Bose, J. observed in Sangram Singh v. 1. Election Tribunal, Kotah(5):

“The jurisdiction which Arts. 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all Tribunals to see whether they have acted illegally………The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior Tribunal. It is apart of the law of the land which cannot be finally determined or altered by any Tribunal of limited jurisdiction. The High Courts and the Suppeme Court alone can determine what the law of the land is vis-a-vis all other courts and Tribunals and they alone can pronounce with authority and finality on what is legal and what is not… ….Therefore, the jurisdiction of the High Courts under Art. 226 with that of the Supreme Court above them remains to its fullest extent………”

His Lordship continued:

“The High Courts do not, and should not, act as Courts of appeal under Art. 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of oases unless substantial injustice has ensued or is likely to ensue.”

The scope of the proceedings under Art. 226 of the Constitution is very mach more limited compared to what the Supreme Court could order in an annual, once leave is granted under Art. 136 of the Constitution and the appeal is admitted. The grant of leave under Art. 136 of the Constitution is, however, essentially discretionary. So is the issue of a writ of certiorari under Art. 226 of the Constitution. That discretion however, has to be exercised on well recognised lines. One of them is that in certain circumstances, for examples where the Tribunal has violated principles of natural justice which has occasioned failure of justice, the aggrieved person is entitled to the issue of a writ ex debito justitiae. Even such a limitation has not so far been expressly made applicable by the Supreme Court to the discretion with which it has been vested under Art. 136 of the Constitution.

The right to apply for leave to appeal to the Supreme Court under Art. 136 of the Constitution if it could be called a “right” at all cannot be equated to a right to appeal. Obviously a High Court cannot refuse to entertain an application under Art. 226 of the Constitution on the ground that the aggrieved party could move the Supreme Court under Art. 136 of the Constitution. That the Supreme Court declined to exercise its discretion in favour of the petitioner by granting the leave asked for cannot, in our opinion, affect the jurisdiction vested in the High Court under Art. 226 of the Constitution. Even had there been a right of appeal to any other forum whether it was availed of or not, the jurisdiction under Art. 226 of the Constitution would be left untouched. It has been consistently held that the existence of an alternative remedy is no bar to the assumption of jurisdiction under Art. 226 of the Constitution, though it would be a very relevant factor in deciding whether the discretion to grant the relief would be exercised in a given case. That was restated by the Supreme Court in U. P. State v. Muhammad Noor. As the learned Advocate General however pointed out Art. 136 of the Constitution does not really provide a remedy as such as an alternative to what could be granted under Art. 226 of the Constitution.

We have no hesitation in rejecting the extreme contention of the learned Counsel for the respondents, that once the aggrieved party had had recourse to Art. 136 of the Constitution though it failed, this Court would have no jurisdiction to grant a rule nisi under Art. 226 of the Constitution. Whether in the exercise of its discretion the Court should discharge the rule issued in the present case is, however, a wholly different question.

Consistent with the practice of the Supreme Court no reasons were given for the refusal to grant the leave the petitioner had sought to prefer an appeal against the award of the Industrial Tribunal. That does not alter the fact that leave was refused. That would imply that their Lordships of the Supreme Court were not satisfied that ex facie the award there was any indication of any failure of justice. No doubt the petitioner averred in the memorandum of appeal submitted along with the application for leave to appeal:

“5…………even if the Tribunal was in doubt the proper course was to examine the Conciliation Officer to verify whether the agreement was both regarding calculation of the loss and the compensation to be paid or any one of them.

6. The Tribunal should have given effect to the entire agreement or in the alternative should have considered the entire question de novo………

8. The Tribunal was in any event in error and acted without jurisdiction in refusing the petitioner permission to call and examine the Assistant Commissioner of Labour, especially in view of the fact that although the position was clear, doubts were raised as to the points which were agreed to before him by the parties.”

In the absence of any express findings recorded by the Supreme Court we considered ourselves free to examine the correctness of these contentions. Still the position is, that though these were among the grounds on which the petitioner sought leave under Art. 136 of the Constitution, that leave was refused by the Supreme Court.

That the Supreme Court declined to exercise its discretion in favour of the petitioner appears to us to be a factor that ought to be taken into account and given due weight, when we are called upon to exercise our discretion in favour of interference with the award of the Tribunal on some of the very grounds specified in the application for leave to appeal that failed. It should be needless to emphasise that had leave been granted—and that was the stage for the exercise of the discretion vested in the Supreme Court—the scope of the appeal could have been much wider than that permissible in proceedings under Art. 226 of the Constitution. Though not without hesitation we have reached the conclusion, that in the circumstances of this case it would not be a proper exercise of discretion, despite the findings we have recorded earlier, to set aside the award by the issue of a writ of certiorari, after the Supreme Court had refused the petitioner leave to appeal against that award. It is in these circumstances that we direct that the rule nisi be discharged and that the petition be dismissed, but without costs.

V.C.S