Pandey, J.
1. This is a petition under Arts. 236 and 227 of the Constitution for a writ of certiorari to quasn an award of the State Industrial Court (respondent 2) dated 10th March 1961 and also for either considering the matter afresh or a direction requiring the respondent 2 to do so.
2. The petitioner, which represents the employees of the Jubbulpore Electric Supply Co., Ltd. (respondent 1), served upon the Company on 4th January 1957 a notice under Section 32 (1) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 (hereinafter called the Act making the following demands :
(i) Merger of 50 per cent of the dearness allowance in wages.
(ii) Provision for a Gratuity Scheme,
(iii) Revision of scales of pay.
(iv) Refixation of basic wages by adding to them 50 per cent of such wages as on 1st October 1956.
(v) Promotion strictly according to seniority and efficiency.
(vi) Introduction, of all these changes from 1st October 1956.
Since there was no settlement either privately or in the proceedings initiated for conciliation, the petitioner referred the industrial dispute for arbitration to the respondent 2 under Section 38A (1) of the Act. The main basis for the demands was that the Company had made 'considerable progress in finances and revenue income from the year 1947 onwards upto 1955-56''.
The Company, resisting the demands stated inter alia that, although the financial position of the Company was sound, the revenue receipts by themselves and in disregard of the obligations flowing from the application of the financial principles embodied in Schedule VI to the Electricity Supply Act, 1948, could be no true indication of its capacity to pay more. The Company also pointed out that, by an agreement made between it and the workers on 25th February 1950, the pay scales were fixed and the Gratuity Scheme was substituted by a Provident Fund Scheme. In the proceedings before the respondent 2, the Company applied for permission to lead evidence about its financial position and capacity to pay after meeting its compulsory obligations under Schedule VI to the Electricity Supply Act, 1948. That application was strongly opposed by the petitioner and, on 2nd April, 1960, it was rejected by the respondent 2. The Company thereupon filed Miscellaneous Petition No. 127 of 1960 challenging the correctness of that order.
Since the matter was pending before the respondent 2, we declined to interfere or express on the question any opinion, which was likely to influence the decision of the respondent 2. We observed :
'Any expression of such opinion by us on the question while the matter is still pending before the State Industrial Court for final adjudication cannot but influence the decision of the Industrial Court. It is not that the applicant has no other remedy for challenging the correctness of the view taken by the Industrial Court. When the final award is given by the Industrial Court and if the applicant feels aggrieved by it, it would be open to the petitioner to come up to this Court under Article 226 or 227 of the Constitution contending that the award is vitiated by the omission on the part of the State Industrial Court to consider matters which are fundamental to or which have a material bearing in the fixation of wage structure.''
3. In the proceedings before the respondent 2, the petitioner restricted its claim to (1) revision of scales of pay and (2) provision for a Gratuity Scheme.
The respondent 2 referred to Textile Labour Association, Ahmedabad v. Ahmedabad Mill Owners' Association, 1958-1 Lab LJ 349 (Industrial Tribunal Bombay) and Bharatkhand Textile Mfg. Co. Ltd.. Ahmedabad v. Textile Labour Association, Bhadra, Ahmedabad, (1960) 3 SCR 329 : (ATR 3960 SC 833), for the view that in considering the claim for a Gratuity Scheme, financial condition of the employer, his profit making capacity, the profits earned by him in the past, the extent of his reserves and the chances of his replenishing them, the claims for a fair share of the profit on the capital invested by him and other material considerations have to be borne in mind.
Further, the respondent 2 relied upon Express Newspaper (Private) Ltd. v. Union of India, 1959 SCR 12 : (AIR 1958 SC 578), (1960) 3 SCR 629: (AIR 1960 SC 833) (Supra) and Messrs. Lipton Ltd. v. Their Employees, (1959) Supp 2 SCR 150 : (AIR 1959 SC 676), to accept the following principles which, it may be stated here, were relied upon by Shri Dabir for the Company as well as by Shri Dhabe for the petitioner :
(i) The employer is bound to pay the bare subsistence wages irrespective Of his capacity to pay.
(ii) The capacity of the industry to pay is one of the essential considerations for determining fair wages.
(iii) The capacity of the industry to pay does not mean such capacity of a particular establishment. It means the paying capacity of a fair cross-section of the industry in a specified region.
(iv) The proper measure for gauging the capacity of an industry to pay is neither the selling price, nor the volume of the output, nor the profits or losses in the business, nor the rates agreed upon by the majority of employers nor the unemployment brought about Or likely to be brought about by the increased wages but the elasticity of demand for the product, the possibility of tightening up the organisation to enable higher wages to be paid without difficulty and the possibility of increase in the efficiency of the lowest paid workers.
(v) In determining fair wages, the existing level of employment should be maintained and its possible increase should also be taken into consideration.
(vi) As far as possible, the same fair wages should be fixed for all units of any industry in a specified region.
(vii) The scale of wages should not be such as to drive the employer out of business.
4. Having accepted these principles, Shri Dhabe urged before the respondent 2 that the expression 'specified region' mentioned in the Supreme Court cases should be taken to be a 'local area' as defined in Section 2 (17) of the Act. This contention was rejected on the ground that 'local area'' was defined in the Act for other purposes not relevant to the matters now in controversy.
5. Treating the claim for revision of scales of pay as one for fair wages to which the principles mentioned above applied, the respondent 2 held that the petitioner failed to prove the capacity of the industry to pay in the sense already indicated and the evidence led also went to show that as compared with the Katni Electric Supply Company and the Madhya Pradesh Electricity Board, the pay scales of the Company's employees were, on the whole, slightly higher. On these two grounds, the respondent 2 found that no case was made out for revision of scales of pay and, owing to the failure of the petitioner to establish the capacity of the industry to pay, even the Gratuity Scheme could not be allowed.
6. The learned counsel for the petitioner strongly urged that the two claims should have been considered on the unit basis and not on the industry-cum-region basis. He referred to C. P. Transport Service Ltd. Nagpur v. Raghunath Gopal, 1956 SCR 956 : ((S) AIR 1957 SC 104), for the view that the Act is wider than the Industrial Disputes Act, 1947 (XIV of 1947) and read to us several provisions of the Act, including Clause (14) of Section 2, to show that thereunder an individual unit could be an industry. Our attention was also drawn to several passages in the judgment of the Supreme Court in the case of Express Newspapers Ltd., 1959 SCR 12 : (AIR 1938 SC 578) (supra) to distinguish that case as referring to the claims of working journalists all over the country, which were considered by a Wage Board constituted under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955).
Finally the learned counsel relied upon the following passage in the judgment of the Supreme Court in Garment Cleaning Works, Bombay v. Their Workmen, (1931-62) 20 FJR 209 at p. 211 : (AIR 1962 SG 673 at p. 674) :
'In support of this argument he has relied upon a judgment of this Court in (1960-61) 18 FJR 198 : (AIR 1960 SC 833). In that case the Industrial Court had no doubt dealt with a claim for gratuity made by the workmen on the industry-cum-region basis, and an attack against the validity of the said approach made by the employer in regard to the scheme was repelled by this Court, It would, however, be noticed that all that this Court decided in that case was that it was erroneous to contend that a gratuity scheme could never be based on industry-cum-region basis and in support of this conclusion several considerations were set forth in the judgment. It is clear that it is one thing to hold that the gratuity scheme car! in a proper case be framed on industry-cum-region basis, and another thing to say that industry-cum-region basis is the only basis on which gratuity scheme can be framed. In fact, in a large majority of cases gratuity schemes are drafted on the basis of the units and it has never been suggested or held that such schemes are not permissible.''
7. The excerpt quoted at the end of the last paragraph itself shows that, even under the Industrial Disputes Act, 1947, it is permissible to adopt the unit basis in proper cases. Similarly, upon considerations accepted in these Supreme Court cases and in the absence of any provision in the Act inhibiting their adoption, we think it is legitimate to adopt the industry-cum-region basis in proper cases adjudicated under the Act. The essential difference between the two is that the capacity of the industry to pay is in one case determined inter alia upon considerations more intimately connected with, and affecting, the particular unit such as the extent of profits, fair return on capital, remuneration to the management and a fair allocation to reserves and depreciation so as to keep the industry in a healthy condition such capacity in the other case is necessarily determined upon larger considerations which are common to all units of a particular industry in a given region.
8. In view of what we have said, the respondent 2 could have adopted the industry-cum-region basis for the purpose of ascertaining whether, in this case, the claims made under the Act were well founded.
Even if, as contended for that basis was not available under the provisions of the Act, we consider that there should be no interference in the case before us. In the first place, both parties relied upon the principles applying to determination of the paying capacity on the industry-cum-region basis and thereby induced the respondent 2 to adopt that basis. Indeed, the Company desired to lead evidence with a view to showing that, upon considerations material to the unit basis its financial condition was not such as would enable It to bear the additional annual burden of Rs. 1,52,000/-. As pointed out by the Supreme Court in Airlines Hotel (Private) Ltd. Bombay v. Their Workmen, (1961-62) 20 FJR 45; (AIR 1962 S.C 676) both for increase of wages and the retiring benefit in the shape of a Gratuity Scheme, the adjudicator must, upon relevant considerations, be positively satisfied first and foremost that the employer has the beneficial capacity to bear the additional burden. But, as shown, the petitioner strongly opposed admission of that evidence and Succeeded in inducing the respondent 2 to decline to receive it on the ground that it was n t relevant for the purpose of determining the capacity of the Company to pay on the industry-cum-region basis. In our opinion, in view of the definite stand taken by the petitioner in the adjudication proceedings, it should not be permitted to adopt an inconsistent position for the purpose of seeking the assistance of this Court.
9. Except in certain specified cases not material here, a writ of certiorari is not a writ of right. It is a discretionary remedy which will not be granted as a matter of course: Halsbury's Laws of England (3rd Edition), Vol. II, page 140 (para 265) R. v. Williams (1914) 1 KB 608; R. v. Stafford Justices, (1940) 2 KB 33; K. S. Rashid and Son v. Income-tax Investigation Commission, 1954 SCR 738 : (AIR 1954 SC 207) and A- M. AUson v. B.L. Sen, 1957 SCR 3(sic)9 : ((S) AIR 1957 SC 227). In particular, it will always be seen whether the conduct of the party applying 1 as not been such as to disentitle him to relief. A writ of certiorari will, save in most exceptional cases, not be granted at the instance of the party at whose instance or in whose favour the error was made. Channell, J. observed in (1914) 1 KB 608 (supra):
'In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them'. (Pages 614-5)
In (1940) 2 KB 33 (supra), Greene M. R. stated,
'In the present case the circumstances are Indeed remarkable. Before examining them, I should perhaps make two snort references to the authorities which have been cited before us in support of my statement of what I conceive to be the law. In the first place, in R. v. Sheward, (1880) 9 QBD 741, a decision of this Court, Bramwell, L.J. stated in terms : ''The granting of a certiorari is discretionary'. In R. v. Surrey, Justices, (1870) 5 QB 466, a decision of the Divisional Court of the Court o[ Queen's Bench, Blackburn, J., delivering the judgment of the Court, said: 'Where the party grieved has by his conduct precluded himself from taking an objection,, the Court will not permit him to make it as in R. v. South Holland Drainage Committee, (1838) 8 Ad. and El 429'. (Page 44).
In our opinion, the petitioner, who had induced the adjudicator to adopt the industry-cum-region basis and taken a chance of a decision in its favour on that basis cannot be permitted to question that basis after the decision has gone against it. By its conduct, it has clearly precluded itself from challenging it.
10. The petitioner's counsel argued that, even upon the basis of evidence led in the case, the conclusions reached by the respondent 2 are not warranted. In this connection, he referred to the monopoly enjoyed by the Company and to the figures of revenue increasing progressively from 1950 to 1958. The relevant statement (Annexure Hhhh) however shows that the net profits have progressively declined. We need hardly state that we do not deal with the matter, as a Court of appeal. We cannot substitute our own judgment on the two questions when we find! that the respondent 2 has taken on the evidence a possible view: T.C. Basappa v. T. Nagappa, 1954-1 SCR 250: (AIR 1954 SC 440).
11. In the end the petitioner's counsel urged that the case be remanded for a fresh decision after receiving evidence of paying capacity on the unit basis. We must say, as the Supreme Court, said in (1961-62) 20 FJR 209 : (AIR 1962 SC 673) (supra) that, if the petitioner wanted the respondent 2 to consider the evidence and to decide the case in the light of that evidence, it need not have objected to its admission on the ground that it was not at all relevant It is now too late to suggest that the objection will be withdrawn so that the matter could be considered afresh by the respondent 2.
12. In the view we have taken, the petitionfails and is dismissed. The petitioner shall bearits own costs and pay out of the security amountthose of the respondent 1. The remaining amountof security shall be refunded. Hearing feeRs 100/-