Judgement

WANCHOO, J. : This is an appeal by special leave against the judgment of the Bombay High Court by which the writ petition filed by the appellant was summarily dismissed. The brief facts necessary for the purpose of this appeal are these: The appellant is a cotton mill in Ahmedabad. Respondents Nos. 2(a) to 2(n) are the fourteen employees of the appellant designated as grey-folders. Under the Bombay Industrial Disputes Act, 1938, (since repealed by the Bombay Industrial Relations Act, No. XI of 1947, which came into force on April 15, 1947), the Registrar had made a notification recognising various occupations in cotton textile mills. Folders were put in group F of this notification while clerks were put in group H . In December 1946, the Textile Labour Association of Ahmedabad gave a notice of change to the Mill-owners Association for standardisation of wages of the various occupations in the cotton textile industry. Thereupon a reference was made by the State Government in June 1947 to the industrial Court, which, by the first part of its award, fixed wages for grey-folders doing cut-looking work at Rs. 42-4-0 per mensem. Later the same Court gave the second part of its award relating to clerks in October 1948. In April 1949, the Textile Labour Association gave a notice terminating the award under S. 116 of the Bombay Industrial Relations Act and the award came to an end in June 1949. Thereafter under S. 42(2) of the Bombay Industrial Relations Act, there was a notice of change by the Textile Labour Association for revision of pay scales. In pursuance of this notice there was an agreement between the Ahmedabad Mill-owners Association and the Textile Labour Association on June 22, 1949. This agreement was to apply to all the cotton mills in Ahmedabad. Cl. (4) of this agreement provided pay scales for clerks who were divided into three categories. Then came Cl. (5) with which we are concerned in this appeal. It runs as under :

"A separate scale for those of the employees who occupy the position lower than that of a full-fledged clerk but higher than that of an operative will be provided as under :

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"This scale will be applicable in case of ticket boys, ticket checkers, coupon sellers, tally boys, production checkers, thread counters, cloth measurers, department store-men, cut- lookers, and those who have not been included above but who can properly fall under the above category."

Grey-folders, however, not being specifically mentioned in Cl. (5) continued to be paid Rs. 42-4-0 per month as fixed by the first part of the award of the Industrial Court referred to above. Consequently in January 1950, the fourteen respondents who are grey-folders, applied under S. 79 of the Bombay Industrial Relations Act to the labour Court that they were not being paid the grade fixed by cl. (5) of the agreement and this amounted to an unlawful change by the employer and that it should be ordered to withdraw such an illegal change. This application was dismissed by the labour Court in April 1952. It was of opinion that the evidence showed beyond all doubt that the applicants before it were operatives and could not be considered as clerks who were doing routine work of writing, copying or making calculations. There was an obvious error in this view of the labour Court for the grey-folders had not claimed before it that they were clerks, for in that case they would have claimed wages under cl. (4) of the agreement; their case was that they held an intermediate position between clerks and operatives and were thus covered by cl. (5) which provided for such an intermediate grade. However, no further steps were taken by the grey-folders against this order of the labour Court, by way of appeal or otherwise. In the meantime, the grey-folders applied under S. 116A of the Bombay Industrial Relations Act for modification of the award of the industrial Court relating to folders. This application was withdrawn on April, 22, 19