Holding

The appellant’s activities constitute an "industry" under Section 2(j), the earlier award was validly terminated by inferred notice, and the Tribunal’s award stands; no fresh factual issues may be raised at this stage.

Summary

Karnani Properties Ltd., a real‑estate company that lets premises and provides services such as electricity, water, cleaning and lift maintenance, was referred to an Industrial Tribunal over a dispute concerning wages, dearness allowance and gratuity. The company challenged the Tribunal’s award on the grounds that it did not carry on an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, that an earlier award based on a settlement had not been validly terminated, that the termination notice did not comply with Section 19(2), that the Tribunal had not considered the employer’s capacity to pay dearness allowance, and that fresh material could be placed before the High Court. The Supreme Court held that the company’s systematic service‑providing activities satisfy the definition of "industry", that the earlier award was validly terminated by inferred notice, and that no fresh factual issues could be raised at the appellate stage. It also affirmed that the Tribunal was competent to award dearness allowance without a fresh assessment of capacity and that the High Court was correct in refusing additional evidence. Consequently, the appeal was dismissed with costs.

Issues considered

The appellant’s activities fall within the definition of "industry" under Section 2(j) of the Industrial Disputes Act, 1947.
Whether the earlier award based on a settlement was validly terminated in accordance with Section 19(2) and whether a formal written notice is required.
Whether the requirements of Section 19(7) concerning majority representation were satisfied.
Whether the Industrial Tribunal could award dearness allowance without examining the employer’s capacity to pay.
Whether fresh material and factual issues can be raised before the High Court and at the appellate stage under Article 133(1)(a).

Legislation cited

Constitution of Indias. Article 133(1)(a), s. Article 226
Industrial Disputes Act, 1947s. 19(2), s. 19(6), s. 19(7), s. 2(b), s. 2(j), s. 2(p)

Subjects

Industrial Disputes Actdefinition of industryaward terminationdearness allowancetribunal jurisdictionfresh evidenceappellate jurisdictionArticle 133Article 226

Judgment

KARNANI PROPERTIES LTD.
A
v.
STATE OF WEST BENGAL AND ORS.

AUGUST 22, 1990

[N.M. KASLIWAL AND S.C. AGRAWAL, JJ.] B

Industrial Disputes Act, 1947: Section 2(j)-"lndustry"-Real
Estate Company-Letting our premises and rendering various services,
;. -Electricity and Water supply, washing and cleaning, electrical and sani-
tary repairs, lift services etc. to tenants-Employing workers for
maintenance-Held the activity carried on by the company is "industry".
c
Sections 2(b), (p), 19(2), 6 & 7-"Award"-"Settlement"-
J Termination of-Formal notice of termination of settlement is not
necessary-Notice of termination can be inferred from the correspon-
.,,.. dence between the parties.
D
Constitution of India, 1950: Article 133( l)(a)-Appeal to
Supreme Court-Raising fresh plea involving questions of fact cannot
be allowed at the appellate stage.

Article 226-Writ petition challenging findings of Industrial
Tribunal-High Court should generally consider the material placed E
'hefore the Tribunal-Fresh and further material should not be allowed
to be placed before the High Court.

The appellant, a real estate company, was engaged in the business
• o_f letting out its property on lease, Besides it was also rendering various
..-..services to its tenants such as electricity and water supply, washing and . F
cleaning, lift services, electrical and sanitary repairs on payment basis.
For rendering these services the appellant-company employed a
!number of workmen.

A dispute arose between the employees and the appellant-com-
pany with regard to wages, scales of pay, dearness allowance and G
gratuity. The State Government referred the disputes to Industrial Tri-
bunal for adjudication. The appellant-company contested the reference
before the Tribunal by raising a preliminary objection that the alleged
dispute was not an industrial dispute and that the reference was barred
.;,y Section 19 of the. Industrial Disputes Act, 1947 since there was an
earlier binding award, based on settlement with the Union, which was H
not terminated by either parties .
.933
934 SUPREME COURT REPORTS [ 1990) 3 S.C.R.

By an order dated August 24, 1968 the Tribunal overruled the
A
preliminary objection and gave the award dated March 3, 1969 enham·-"
ing the dearness allowance of the employees. The Tribunal also framed
a revised gratuity scheme but did not fix any grades and pay scales of
workmen for want of convincing evidence.

B The appellant-company filed a writ petition in the High Court
challenging the Tribunal's order dated August 24, 1968 as well as the
Award dated March 7, 1969 contending: (i) that the Award was without
jurisdiction because the appellant.company was not carrying on·--- ~,
'industry' and the alleged dispute was not an 'Industrial Dispute' and
that the previous Award was not terminated and was still subsisting; (ii)
that no dispute was raised between the workmen and the appellant
c prior to the reference before the Tribunal; and (iii) that the Tribunal 1
did not consider the appellant's capacity to pay dearness allowance to
the workmen. A single judge of the High Court dismissed the writ ....!
petition by rejecting all the contentions.

D The appellant filed an appeal against the judgment of the single
judge before a Division Bench of the High Court which was also
dismissed.

Against the decision of the Division Bench of the High Court the
appellant-company filed an appeal to this Court, contending: (i) that
E the High Court was in error in holding that the appellant was an"'
'industry' under Section 2(j) of the Act; (ii) that the Tribunal was not
competent to make the Award since the earlier Award, which was in the
nature of a settlement under Section 2(p), was not terminated in accor-
dance with section 19(2) by giving a formal written notice; (iii) that
there was non-compliance with the provisions of Section 19(7) of the
F Act; and (iv) that the Industrial Tribunal was in error in making the
Award in relation to Dearness Allowance without examining the capa- .
city to pay the additional amount and that the High Court should have-\
remanded the matter to the Tribunal fOr considering this issue in the
light of the documents which were submitted by the appellant before the
High Court.
G
Dismissing appeal, this Court,

HELD: I. The activity carried on by the appellant company falls I--
within the ambit of the expression "industry" defined in Section 2(j) of
the Industrial Disputes Act, 1947. The Award of the Industrial Tri-
H bunal cannot, therefore, be assailed on the basis that the appellant is
KARNANI PROPERTIES v. STATE OF WEST BENGAL 935

n Jt carrying on an 'industry' under the Act. [943E]
A
}-
Bangalore Water Supply & Swerage Board v. R. Rajappa and
Ors., [J978]3SCR207,applied.

Management of Safdarjung Hospital v. Ku/dip Singh Sethi, [1971]
I SCR 177; State of Bombay v. Hospital Mazdoor Sabha, [1960 I 2 SCR B
866; D.N. Banerjee v. P.R. Mukher;ee, [1953] SCR 302 and Corpora-
tion of the City of Nagpur v. Its employees, [!960] 2 SCR 942, referred
:... --io.

2. It is not the requirement of Section 19(2) of the Industrial
Disputes Act, 1947 that there should be a formal notice terminating a
c
r settlement, and notice can be inferred from the correspondence bet-
ween the parties. [944B]

Indian Link Chain Manufacturers Ltd. v. Their Workmen, [1972]
1 SCR 790, applied.
D
2.1 In view of the finding of the Division bench that the letter of
employees Union dated November 24, 1966 was a notice under section
19(6) as well as section 19(2) of the Industrial Disputes Act, 1947 and
that the said letter contained a clear intimation of the intention of the
.,.,employees to terminate the Award, the High Court was justified in
holding that the earlier award had been validly terMinated before the E
passing of the order of reference. [943H; 944A-BJ

3. The High Court was right in taking the view that while exercis-
1 ing its jurisdiction under Article 226 of the Constitution the High
. .-. Court should generally consider the materials which were made avail-
able to the Tribunal and fresh or further materials which were not F
( before the Tribunal shonld not normally be allowed to be placed before
"lhe Court. [944F-G]

3.1 In the instant case the appellant has not been able to show
why the documents relied on by it were not produced before the Tri-
bunal. Therefore there is no justification for accepting the plea of the G
appellant for reconsideration of the Award of the Tribunal in the light
of the documents submitted by the appellant during the pendency of the
~appeal before High Court. l944G-HJ

4. A question raised for the first time in the Supreme Court
involving an inquiry into questions of fact cannot be allowed to be H
agitated. [944E]
936 SUPREME COURT REPORTS I1990] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2080
(W~~- ~

Appeal by Certificate from the Judgment and Order dated
20.12. 74 of the Calcutta High Court in Appeal No. 104 of 1972.

B R.N. Nath and Rathin Das for the Appellant

S.P. Khera, M. Quamaruddin and Mrs. M. Quamaruddin for the .,,
Respondents. ·-

G.S. Chatterjee for the State.
c The Judgment of the Court was delivered by 1
S.C. AGRAWAL, J. This appeal, by certificate granted under .1
Article 133( l)(a) of the Constitution, is directed against judgment and
order of the High Court of Judicature at Calcutta dated December
D 20, 1974, in Appeal No. 104 of 1972.

Kamani Properties Ltd., appellant herein, is a company incor-
porated under the Companies Act, 1913. It owns several mansion
houses known as Kamani Mansions at Park Street, Calcutta. There are
about 300 flats in these mansions which have been let out to tenants.\.
E The appellant provides various facilities to its tenants in these flats,
e.g. free supply of electricity, washing and cleaning of floors and
lavatories, lift service, electric repairs and replacing, sanitary repairs
and replacing, etc., and for that purpose the appellant employ over ~
50 persons, namely sweepers, plumbers, malis, lift-man, durwans, __
pumpmen, electric and other mistries, bill collectors and bearers, etc.,
F in connection with these properties. A dispute arose between the emp-
loyees of the appellant represented by Barabazar Zamandar Sangh .l
(hereinafter referred to as 'the union') and the appellant with regard to
wages, scales of pay, dearness allowance and gratuity. The Govern-
ment of West Bengal, by order dated July 29, 1967, referred for
adjudication to the· 6th Industrial Tribunal, West Bengal, the indusrial
G dispute relating to:

(a) Fixation of Grades and Scales of pay of the different
categories ofwo.rkmen; ').-

(b) Dearness Allowance; and
H
(c) Gratuity.
KARNANI PROPERTIES v. STATE OF WEST BENGAL [AGRA WAL. J .] 937

The appellant raised preliminary objections with regard to the
A
) validity of the reference before the Industrial Tribunal on the ground
that the alleged dispute is not an industrial dispute and that the refe-
rence is barred by Section 19 of the Industrial Disputes Act, 1947
(hereinafter referred to as 'the Act') for the reason that in 1960 there
was an Award on the basis of settlement made with the union, and the
said Award has not been terminated by either of the parties and is still B
binding on the parties. The Industrial Tribunal, by its order dated
August 24, 1968, overruled the said preliminary objections raised by
the appellant and thereafter the Tribunal gave the Award dated March
3, 1969. The Industrial Tribunal expressed its inability to fix any
grades and scales of pay of the workmen for the reason that the evi-
dence adduced by the Union on this issue was scrappy, none too con-
vincing and not very much acceptable» As regards dearness allowance
c
the Industrial Tribunal held that since November, 1964 the price index
of working class in Calcutta has considerably gone up from 460 to 750
points (as was in October, 1968), i.e. roughly by 300 points. The
Industrial Tribunal awarded enhanced DA at the rate of Rs.60 per
month (Rs.20 per 100 points) to the sweeper, bearer, helper, mali, D
mazdoor, lift-man, head sweeper, durwan, pumpman, apd assistant
electric mistry. DA at the rate of Rs.54 per month (Rs.18 per 100
points) was awarded to the plumber, raj mistry, head durwan, electric
mistry and driver and bill collector. It was also directed that the sajd
rates of DA ·would remain in force as long as the price index will
remain between 600 to 800 points and if the price index goes up E
beyond 800 points the rate of DA will be revised according to the rates
mentioned and if it goes below 600 points it also may be revised
accordingly. With regard to gratuity the Industrial Tribunal pointed
out that under the existing scheme gratuity is payable to every work-
men after completion of three years continued, faithful and satisfac-
tory service at the rate of 10 days consolidated salary for every comp- F
leted year of service since the date of appointment. The Industrial
Tribunal held that three years' period was too short to make a work-
man entitled to gratuity and that "satisfactory" and "faithful" are
vague temis. The Industrial Tribunal framed a scheme of gratuity
whereunder after completion of six years of continuous service with
the appellant every workmen on retirement or on death will get an G
amount of gratuity at the rate of 10 days' consolidated salary for every
completed year of service since the date of appointment and a work-
man who resigns voluntarily would also be entitled to get the gratuity
at the same rate provided he completed 10 years of continuous service.
The Industrial Tribunal also directed that if the termination of service
is the result of misconduct which caused financial loss to the employer H
938 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

that loss would first be compensated from the gratuity payable to
A
employee and the balance, if any, should be paid to him. It was also ..(_
directed that the services of the workmen prior to 1950 would not be
taken into consideration forthe purpose of payment of gratuity.

The appellant filed a writ petition in the High Court under Arti-
B cle 226 of the Constitution wherein the order dated August 24, 1968
and the Award dated March 7, 1969 given by the Industrial Tribunal
were challenged. The said writ petition was heard by a learned single
~

Judge, who by his judgment dated March 17 & 20, 1972, dismissed the
said writ petition. Before the leanned single Judge it was urged that
the Award made by the Industrial Tribunal was without jurisdiction
for the reason that the appellant does not carry on an "industry" as
c defined in the Act and that the dispute between the appellant and the
workmen cannot come within the ambit of industrial dispute, and also
for the reason that there was a previous Award dated March 3, 1960
which has not been terminated and was still subsisting and in view of
the said Award the present reference was invalid and further that no
D dispute was raised between the workmen and the appellant prior to the
reference before the Industrial Tribunal and as such the Tribunal has
no jurisdiction to deal with the matter. The learned single Judge
rejected all these objections. He held that in view of the nature of the
activity carried on the appellant does carry on an industry within the
meaning of the Act and the dispute between the appellant and its ':
E workmen come within the ambit of the Act. As regards the Award
dated March 3, 1960 the learned single Judge found that the workmen
cbncerned had given notice to terminate the previous Award and as
such the existence of previous Award and as such the existence of
previous A ward would not preclude a fresh reference. The learned
single Judge observed that no specific plea was raised by the appellant
F before the Industrial Tribunal challenging the order and the reference
-1
on the ground that there was no such dispute prior to the reference )
between the workmen and the appellant about the questions referred
to in the order of reference and that whether there was any demand or
not is a question of fact. the learned single Judge, however, held that
from the evidence it is clear that the workmen concerned had deman-
G ded before the order of reference in their charter of demands dearness
allowance and provident fund and gratuity and as such there was a
dispute between the workmen concerned and the employers before the
order of reference was made. The Award was challenged on merits
before the learned single Judge on the ground that the Industrial Tri- "r
bunal did not consider the appellant's capacity to pay in granting dear-
H ness allowance to the workmen concerned. The learned single Judge
KARNANI PROPERTIES v. STATE OF WEST BENGAL [AGRAWAL, J.l 939

rejected the said contention on the view that reading the Award as a
A
'whole it could not be contended that the Tribunal did not take into
~onsideration either the capacity to pay or the leval of the cost of
living.

The appellant filed an appeal against the judgment of the learned
single Judge which was dismissed by a Division Bench of the High B
Court by its judgment and order dated December 20, 1974. The
learned Judges agreed with the decision of the learned single Judge
"-that the appellant is carrying on an industry under Section 2(j) of the
Act. Before the Division Bench it was contended on behalf of the
appellant that the earlier Award was made on the basis of a settlement
between the two parties and that since the said Award was in a nature
of settlement it could only be terminated in accordance with the provi- c
sions of Section 19(2) of the Act relating to termination of a settle-
ment. The learned Judges of the Division Bench held that the said
'-'- contention was not raised by the appellant before the Tribunal and
also before the learned single Judge and it could not be raised for the
first time at the stage of the appeal and that it cannot be considered to D
be a pure question of law because for a settlement under Section 2(p I
of the Act the necessary requirements of settlement as laid down in the
statute and the rules have to be satisfied and whether the necessary
recruitments have been satisfied or not will involve investigation into
facts. The learned Judges were, however, of the view that even if the
7'said plea was allowed to be raised it could not be accepted inasmuch as E
the materials on record do not establish that the requirement of "set-
tlement" as defined in Section 2(p}of the Act are satisfied in respect of
the earlier Award. It was held that an Award does not necessarily
cease to be an Award merely because the same was made on the basis
r,_ -0f a settlement arrived at between the parties and that the earlier
Award was an "Award" within the meaning of Section 2(b) of the Act F
1and was not a settlement as contemplated by Section 2(p) of the Act.
"With regard to the termination of the earlier Award, the learned
Judges have held that in the facts and circumstances of the case it had
been validly terminated in accordance with Section 19(6) as well as
Section 19(2) of the Act. Before the Division Bench it was urged on
behalf of the appellant that the Tribunal has not considered the finan- G
cial capacity of the appellant while making the Award with regard to
dearness allowance and reliance was placed on certain documents
which were filed before the Division Bench. The learned Judges held
--<that in considering the findings arrived at by the Tribunal the Court
should generally consider the materials which were made available to
the Tribunal and fresh or further materials which were not before the H
940 SUPREME COURT REPORTS [1990] 3 S.C.R.

Tribunal should not be allowed to be placed before the Court in a writ
A
petition for determining whether the findings of the Tribunal are(
justified or not and that in the instant case no proper grounds have
been made out for not producing the materials which were then avail-
able at the time of the hearing before the Tribunal and why the said
documents could not be produced even before the learned single
B Judge. The learned Judges further held that even if the said documents
are taken into consideration the same would be of no particular assist-
ance to the appellant inasmuch as the said documents consist mainly of ,
balance sheets and assessment orders, and that the legal position is -
settled that while computing gross profits for the purpose of revising
wage structure and dearness allowance the provision made for taxa-
tion, depreciation and development rebate cannot be deducted and the -
c provisions of the Companies Act contained in Sections 205 and 211
and the principles of accountancy involved in preparation of profit and
loss accounts have no relevance or bearing while considering the revi- ,.,
sion of wages and dearness allowance. The learned Judges have held
that on the materials on record the Tribunal was justified in making
D the Award and that the materials on record before the Tribunal
establish that the amount ordered by the Tribunal was not beyond the
financial capacity of the appellant.

Aggrieved by the decision of the Division Bench of the High
Court the appellant has filed this appeal after obtaining leave to appeal\
E from the High Court under Article 133( l)(a) of the Constitution. ·

Shri R.N. Nath, the learned counsel for the appellant, has sub-
mitted that the High Court was in error in holding that the appellant is -
an industry under Section 2(j) of the Act. Shri Nath has submitted that _ /.,
in arriving at the said conclusion the learned Judges of the Division
F Bench of the High Court have relied upon the decision of this Court in
Management of Safder Jung Hospital v. Ku/dip Singh Sethi, [1971] I )
S.C.R. 177 which decision was overruled by this Court in Bangalore ·
Water Supply & Sewerage Board v. R. Rajappa and Others, [1978] 3
S.C.R. 207. The submission of Shri Nath is that in accordance with the
principles laid down in Bangalore Water Supply & Sewerage Board
G Case, (supra) the appellant cannot be taken to be carrying on an
"industry" under Section 2(j) of the Act. In our opinion there is no
substance in this contention. It is no doubt true that the learned Judges
of the Division Bench of the High Court have placed reliance on the ~
decision of this Court in the Safdar Jung Hospital Case, (Supra) for
holding that the appellant is carrying on an industry under Section 2(j)
H of the Act and the decision in Safdar Jung Hospital case, (supra) has
KARNA NI PROPERTIES v. STATE OF WEST BENGAL (AGRA WAL, J .] 941

been overruled by a larger Bench of this Court in Bangalore Water
I A
)- Supply & Sewerage case, (supra). But this does not mean that the view
of the High Court that the appellant is carrying on an industry under
Section 2(j) of the Act is erroneous. In Safdar Jung Hospital case,
(supra), a six member Bench of this Court had overruled the earlier
decision in State of Bombay v. Hospital Mazdoor Sabha, [1960] 2
S.C.R. 866 and gave a restricted interpretation to the definition of B
"industry" contained in Section 2(j) of the Act. Bangalore Water Sup-
ply & Sewerage Board, case (decided by a seven member Bench of this
Court) by overruling the decision in Safdar Jung Hospital case, has
restored the Hospital Mazdoor Sabha case. In other words, the effect
of decision on Bangalore Water Supply & Sewerage Board case, ·is that
the expression_"industry" as defined in Section 2(j) has to be given the
meaning assigned to it by this Court in the earlier decisions in D.N. c
Banerjee v. P.R. Mukherjee, [1953] S.C.R. 302, Corporation of the
City of Nagpur v. Its employees, [1960] 2 S.C.R. 942 and the Hospital
Mazdoor Sabha case Krishna Iyer, J., who delivered the main judg-
ment in Bangalore Water Supply & Sewerage Board case, has summed
up the principles which are decisive, positively and negatively, of the D
identity of "industry" under the Act. The first principle formulated by
the learned Judge is as under:

"I, Industry, as defined in Section 2(j) and explained in
Banerjee has a wide import:
E
(a) Where (i) systematic activity (ii) organised by co-
operation between employer and employee, (the direct)
and substantial element is chimerical) (iii) for the produc-
tion and/or distribution of goods and services calculated to
satisfy human wants and wishes (not spiritual or religious
but inclusive of material things or services geared to celes- F
tial bliss e.g. making, on a large scale prasad or food),
prima facie, there js an industry in that enterprise.

(b) Absence of profit motive or gainful objective is irrelev-
ant, be the venture in the public joint or other sector.
G
(c) The true focus is functional and the decisive test is the
nature of the activity with special emphasis on the
employer-employee relations.

(d) If the organisation is a trade or business it does not
cease to be one because of philanthropy animating the H
undertaking."
942 SUPREME COURT REPORTS [1990] 3 S.C.R.

A If the said principles are applied to the facts of the present case
and there can be no doubt that the activity carried on by the appellant
satisfies the requirements of the definition of "industry" contained in
Section 2(j) of the Act. In this regard, it may be mentioned that the
learned Judges of the Division Bench of the High Court have found as
under:
B
"(i) The Memorandum of Association of the appellant
company indicate that the principal object for which the
appellant company was incorporated is to acquire by
purchase, transfer, assignment or otherwise lands, build-
ings and landed properties of all description and in particu-
c lar to acquire from the Karnani Industrial Bank Ltd. , the
immovable properties now belonging to the said Bank and
to improve, manage and develop the properties and to let
out the same on lease or otherwise dispose of the same.

(ii) The principal business of the company is to deal with
D the real property and it is a real estate company.

(iii) The income which the appellant derives is not from
mere letting out the properties to the tenants and that the
tenants pay not only for mere occupation of the property
but also for enjoyment of the various services which are
E rendered by the appellant to the tenants and to which
'\
services the tenants are entitled as a matter of right for the
occupation of the premises.

(iv) The services which are rendered to the tenants and
about which there does not appear to be any dispute are:
F
(a) elaborate arrangements for supply of water; )

(b) free supply of electricity;

(c) washing and cleaning of floors and lavatories;
G
(d) lift services;

(e) electric repairs and replacing; and

(f) sanitary repairs and replacing etc.
H
KARN AN! PROPERTIES v. STATE OF WEST BENGAL [AGRAWAL, J.] 943

(v) For offering these services to the tenants, the appellant
I A
has employed a number of workmen and these services
)-
which undoubtedly confer material benefits on the tenants
and constitute material services, are rendered by the
employees.

(vi) The employees of the appellant company are engaged B
in their respective calling or employment to do their work
in rendering the services.

(vii) Activity carried on by the appellant company is
undoubtedly not casual and is distinctly systematic.

(viii) The work for which labour of workmen is required is c
clearly productive of the services to which the tenants are
entitled and which also form a part of the consideration for
the payments made by the tenants.

(ix) The appellant carries on its business with a view to D
profits and it makes profits and declares dividends out of
the profits earned.

From the aforesaid findings recorded by the High Court, with
which we find no reason to disagree, it is evident that the activity
1 carried on by the appellant falls within the ambit of the expression E
"industry" defined in Section 2(j) of the Act as construed by this Court
in Bangalore Water Supply & Sewerage Board case (supra). The
Award of the Industrial Tribunal cannot, therefore, be assailed on the
basis that the appellant is not carrying on an industry under the Act.

Shri Nath has. next contended that the Industrial Tribunal was F
not competent to make the Award as the earlier Award dated March
3, 1960, had not been validly terminated. He has urged that the earlier
Award was in the nature of a settlement under Section 2(p) of the Act
and it could be terminated only in accordance with Section 19(2) of the
Act. Shri Nath has pointed out that for terminating a settlement under
Section 19(2) a written notice is necessary whereas for termination of G
an Award under Section 19(6) of the Act a written notice is not
required and a notice is sufficient.

In our opinion this contention does not require consideration in
view of the finding recorded by the learned Judges of Division Bench
of the High Court that the letter dated November 24, 1966 was a notice H
944 SUPREME COURT REPORTS [ 1990) 3 S.C.R.

under Section 19(6) as well as under Section 19(2) of the Act. It has
A been found that the said letter of the union which was addressed to the
Labour Commissioner was sent to the appellant company and that in
the said letter there is a clear intimation of the intention of the emp-
loyees to terminate the Award and from the letter of the appellant
dated February 13, 1967 it appears that the appellant had become
B aware of the intention of the union to terminate the Award and that
the order of reference was made on July 29, 1967, long after the expiry
of the period of two months. It is not the requirement of Section 19(2)
of the Act that there should be a formal notice terminating a settle-
ment and notice can be inferred from the correspondence between the
parties (See: Indian Link Chain Manufacturers Ltd. v. Their Work-
men, [ 1972) 1 S.C.R. 790. In the aforesaid facts and circumstances the
C High Court was justified in holding that the Award dated March 3,
1960 had been validly terminated before the passing of the order of
--
reference.

Shri Nath has urged that there has been non-compliance of the
D provisions of Section 19(7) of the Act which lays down that no notice
given nder sub-section (2) or sub-section (6) shall have effect unless it
is given by a party representing the majority of the persons bound by
the settlement or Award as the case may be. This question has been
raised by the appellant for the first in this Court. It involves an inquiry
into questions of fact which cannot be made at this stage. The same,
E therefore, cannot be allowed to be agitiated.

Shri Nath has lastly urged that the Industrial Tribunal was in
error in making the Award in relation to Dearness Allowance without
examining the capacity of the appellant to pay the additional amount
and that the High Court should have remanded the matter to the
F Tribunal for considering this issue in the light of the documents which
were submitted by the appellant before the High Court. We find no
substance in this contention. The High Court has rightly held that in )
considering the finding arrived at by the Tribunal the High Court while
exercising its jurisdiction under Article 226 of the Constitution should
generally consider the materials which were made available to the
G Tribunal and fresh or further materials which were not before the
Tribunal should not normally be allowed to be placed before the
Court. The appellant has not been able to show why the said docu-
ments were not produced before the Tribunal. It is not the case of the
appellant that the Tribunal had precluded the appellant from produc-
ing these documents. In these circumstances we find no justification
H for accepting the plea of the learned counsel for the appellant for
KARN AN! PROPERTIES''· STATE OF WEST BENGAL [AGRAWAL, J.] 945

reconsideration of the Award of the Tribunal in the light of the docu- A
1ments submitted by the appellant during the pendency of the appeal
i'oefore the High Court.

The appeal is, therefore, dismissed with costs.
1
B
During the pendency of this appeal, the appellant has made a
deposit before the Tribunal. The respondent union will be entitled to
withdraw the said amount along with the interest that has accrued on
? -it.

T.N.A. Appeal dismissed.

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