Gajendragadkar, J.— An industrial dispute between the appellant M/s Associated Power Co. Ltd., and the respondents, its workmen, was referred for industrial adjudication by the Government of West Bengal on July 23, 1961. This dispute related to eight items of demand presented by the respondents. After hearing the parties and taking into account the evidence led by them the tribunal made its award on September 5, 1963. It is against this award that the appellant has come to this Court by special leave.
2. On behalf of the appellant Mr Viswanatha Sastri has raised before us three points. He does not dispute the fact that the increase in the dearness allowance awarded by the tribunal substantially seeks to put them on a par with the appellant's employees in Dishergarh. The respondents are the workmen employed by the appellant at Sheebpur. At both places the industrial work carried on by the appellant is similar in character, and in dealing with the claim made by the respondents for an increase in their dearness allowance the tribunal was considerably influenced by the consideration that at Dishergarh an agreement had been reached between the appellant and its employees working there in respect of dearness allowance on May 17, 1961. The tribunal found that the employees working with the appellant at the two respective centres were transferable from one to the other and so it held, and we think rightly, that there should be no disparity or difference between the dearness allowance paid by the appellant to its employees at Dishergarh and that paid at Sheebpur. Mr Sastri, however, contends that in trying to bring about uniformity in the rate of dearness allowance payable to the respondents the award has in turn introduced some disparities and they should be corrected. Mr M.S.K Sastri, who appears for the respondents, cannot reasonably resist the appellant's contention that if dearness allowance has to be paid by the appellant to its employees at the same rates and on the same terms there should be no difference in favour of the respondents either at Sheebpur or at Dishergarh. That being so, we think it is right that the disparity introduced by the award in that behalf should be corrected and that can best be done by issuing a general direction that the appellant should pay to its employees at Sheebpur dearness allowance at the same rates and in the same manner as it pays to its employees at Dishergarh.
3. The next contention which Mr Sastri has raised in regard to the dearness allowance is that this has been ordered to be paid retrospectively from July 1, 1961. The reference in question was made on July 23, 1961 and the award was pronounced on September 5, 1963. Having regard to the fact that the agreement between the appellant and its employees at Dishergarh was signed on May 17, 1961 the tribunal thought that the dearness allowance and other directions issued by it in the present award should take effect from July 1, 1961. While conceding that normally such a direction would justifiably be treated as reasonable Mr Sastri urges that this direction would introduce some difficulties so far as the appellant is concerned. He has invited our attention to the fact that the appellant is governed by the provisions of The Electricity Supply Act, 1948 (Act 54 of 1948), and basing himself on the third proviso to clause (1) of Schedule VI of the said Act Mr Sastri points out that the rates for the year 1963 having been fixed by the Government on July 27, 1963 it would not be possible for the appellant to revise the said rates during the current year. If the appellant had known that its liability to pay dearness allowance was going to be increased as from July 1, 1961 the appellant may have taken appropriate steps to obtain the sanction of the Government to increase its rates; but since that cannot now be done for the current year it would not be possible for the appellant to pass on the additional burden to the consumers. So far as the provisions of Schedule VI are concerned what Mr Sastri contends is no doubt true; but the fact that the appellant may not be able to pass on the burden to the consumers cannot be regarded as decisive in this matter even if it is held to be relevant, Having made an agreement with its Dishergarh employees as early as May 17, 1961, as a prudent manager of an industrial undertaking the appellant should have foreseen the effect of the reference; but apart from that it is not the case of the appellant that its financial position would not enable it to bear the burden imposed by the retrospective operation of the relevant provisions in the award. Mr Sastri stated before us that the retrospective operation of the dearness allowance may involve an expenditure of Rs 40,000. It is impossible to hold on the record that the appellant would not be able to bear this burden even if it is not permitted to raise its rates during the current year.
4. Besides, since the revised rates are going to be effective from July 1, 1961 it would never have been possible for the appellant to revise its rates retrospectively in that sense; and so the argument that the rates having been sanctioned on July 27, 1963 make it difficult for the appellant to meet the burden can have no significance. The capacity to pay the additional burden was not disputed by the appellant before the tribunal and has not been pressed before us either. Therefore, we do not think the argument raised by Mr Sastri that the retrospective operation of the dearness allowance should be set aside because of the relevant provisions of Schedule VI can succeed.
5. The last point raised by Mr Sastri is in regard to the retirement age. The tribunal has ordered that the retirement age should now be fixed at 58, and that on the whole correctly represents the present trend of industrial adjudication in that part of the country on the question of the age of retirement. Therefore, Mr Sastri has not been able to challenge this part of the award seriously. He, however, contends that the direction given by the award should not be made applicable to eight persons who have retired between December 1961 and August 1963. Normally, when an industrial award increases the age of retirement such increase takes effect prospectively from the date when the award becomes operative. We therefore think that Mr Sastri is right in urging that the eight employees named in the petition in para 30 who have retired between December 1961 and August 1963 and have received all retiral benefits due to them should be excluded from the operation of the award in respect of the age of retirement.
6. There is another point which has been made by Mr Sastri in regard to the age of retirement, and that is similar to the point which he made about dearness allowance. It is necessary that, as in the case of dearness allowance, so in the case of the age of retirement there should be no disparity between the relevant conditions and terms in that behalf; and so, we direct that the retirement age which has been fixed by the tribunal at 58 in the case of Sheebpur employees should be subject to the same terms and conditions as are embodied in the agreement made by the appellant with its Dishergarh employees. There is one exception to be made in that behalf and that is that the direction in the award in regard to the retirement age will not be controlled by the term as to the duration of the agreement specified in the agreement. The award will take effect as all industrial awards take effect under the Industrial Disputes Act.
7. What we have said about the dearness allowance and the retirement age will be equally true about the other amenities and financial benefits which the appellant as present gives to its employees.
8. The result is the appeal partially succeeds and the award passed by the tribunal is modified as indicated in this judgment. There will be no order as to costs.