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PATNA HIGH COURT
S.K.Das and V.Ramaswami JJ.
D.N.Ganguly
Versus
State Of Bihar
Miscellaneous Judicial Case No. 546 of 1955 ; 590 of 1955 ;
Decided On : APRIL 04, 1956
INDUSTRIAL DISPUTES ACT - REFERENCE OF DISPUTE - CANCELLATION OF REFERENCE - POWER OF STATE GOVERNMENT - Sec.10, Industrial Disputes Act, 1947 - Sec.21, General Clauses Act, 1897 - Held, the State Government has no implied power to cancel or withdraw a reference which has already been made to the Industrial Tribunal under the provisions of Sec.10.
Fact of the Case:
The State Government of Bihar referred an industrial dispute between Bata Shoe Company Ltd. and its workmen to the Industrial Tribunal for adjudication. The Tribunal took cognizance of the reference and directed the parties to submit respective memoranda. Later, the State Government made another reference of the dispute between the Company and other workmen to the Tribunal. The Tribunal amalgamated both the references. The Bata Mazdoor Union applied to be made a party to the references, but the Tribunal dismissed the application. The Union then wrote to the Labour Commissioner requesting that it be impleaded as a party to the references. Meanwhile, the Tribunal proceeded to hear the references and held eighteen sittings. The State Government then issued a notification purporting to act under Sec.10, Industrial Disputes Act, superseding the two previous notifications and making a fresh reference of the dispute to the Tribunal. The Company and the Union challenged the legality of the fresh reference.
Finding of the Court:
The Court held that the State Government had no implied power to cancel or withdraw a reference which had already been made to the Industrial Tribunal under Sec.10 of the Industrial Disputes Act. The Court observed that the scheme and purpose of the statute was that once a reference was made by the State Government, the Industrial Tribunal must hold its proceedings and submit its award in an expeditious manner, and upon such an award being made it should be published by the State Government under Sec.17 and should normally become enforceable within thirty days of its publication under Sec.17-A. The Court further held that Sec.21, General Clauses Act, which provides that a power to issue notifications, orders, rules, or bye-laws includes a power to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued, could not be used in such a way as to nullify in effect some of the other provisions of the Industrial Disputes Act, 1947.
Issues: Whether the State Government has the power to cancel or withdraw a reference which has already been made to the Industrial Tribunal under Sec.10 of the Industrial Disputes Act?
Ratio Decidendi: The Court held that the State Government has no implied power to cancel or withdraw a reference which has already been made to the Industrial Tribunal under Sec.10 of the Industrial Disputes Act. The Court observed that the scheme and purpose of the statute was that once a reference was made by the State Government, the Industrial Tribunal must hold its proceedings and submit its award in an expeditious manner, and upon such an award being made it should be published by the State Government under Sec.17 and should normally become enforceable within thirty days of its publication under Sec.17-A. The Court further held that Sec.21, General Clauses Act, which provides that a power to issue notifications, orders, rules, or bye-laws includes a power to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued, could not be used in such a way as to nullify in effect some of the other provisions of the Industrial Disputes Act, 1947.
Final Decision: The Court allowed both the applications and issued a writ in the nature of certiorari quashing the notification of the State Government superseding the two previous references and making a fresh reference of the dispute to the Tribunal. The Court also issued a writ in the nature of mandamus commanding the Chairman of the Industrial Tribunal to proceed expeditiously with the two previous references and bring them to a conclusion in accordance with law.
Ramaswami, J.
1. In M. J. C. No. 590 of 1955, the petitioner is Bata Shoe Company Ltd. which has a factory at Digha. In M. J. C. No. 546 of 1955, the petitioners are 59 dismissed workmen who had been previously employed in the Digha factory. Both these applications are considered by the State of Bihar, who is the principal respondent. In M. J. C. No. 590 of 1955, there is another principal respondent, the Bata Mazdoor Union. The Chairman of the Industrial Tribunal is also a respondent in both these applications.
2. In February, 1954, there was a dispute between Bata Shoe Company Ltd (which will be hereinafter referred to as the Company) and its workmen. Conciliation proceedings were started, and on 18-2-1954, a settlement was duly reached and recorded. But on 23-2-1954, a number of workmen went on strike which was illegal as there was contravention of the provisions of Sec.23 (c), Industrial Disputes Act, 1947.
The State Government issued a press note pointing out that the strike was illegal and advised the workmen to give up strike and join the work immediately. But the workmen failed to return to work in spite of warning. The Company thereafter served the workmen with charge-sheets and asked them to submit explanation. As the workmen failed to return to work or to give explanation, the Company issued orders dismissing about 275 workmen including respondents 3 to 62. Later on the Bata Mazdoor Union hereinafter referred to as the Union) made a representation to the Company and as a result, the Company re-employed 76 workmen cut of those dismissed.
On 16-8-1954, the Union served a notice upon the Company enumerating several demands. The main question raised was whether an increase in the volume of employment at the Digha factory was justified and whether the Company should take back all the workers who were dismissed as a result of the strike of 23-2-1954. On 2-9-1954, the dispute was settled by negotiation and the settlement was recorded in Memorandum of the same date (vide annexure 1 to the Companys application).
One of the terms of the settlement was that 31 workmen, namely, respondents 3 to 33 (of M. J. C. No. 590 of 1955) would not be given employment. But these 31 workmen did not abide by the terms of the settlement and raised a dispute regarding their employment. On 8-10-1954, the State Government acting in exercise of the power conferred by Sec.10, Industrial Disputes Act referred the dispute to the Industrial Tribunal. The order of the State Government was to the following effect; "No. III/D1-160 2/54L-15225 -- Whereas an industrial dispute exists between the management of the Bata Shoe Company Ltd., Digha Ghat, Patna, and their workmen mentioned in Appendix "A" regarding the matters specified in Annexure "A".
Now, therefore, in exercise of the powers conferred by Section 7 read with Sub-section (1) of Sec.10, Industrial Disputes Act, 1947 (14 of 1947), the Governor of Bihar is pleased to constitute an Industrial Tribunal of which Mr. Ali Hasan shall be the sole member and to refer the said dispute to the said Tribunal for adjudication.
ANNEXURE "A".
Whether the dismissal of the workmen mentioned in Appendix "A" was justified; if not, whether they are entitled to reinstatement or any other relief? By Order of the Governor of Bihar, (Sd.) B. P. Singh, Secretary to Government."
Appendix "A" contains a list of thirty-one workmen including Sri D. N. Ganguly, Sri M. P. Gupta and others. The Tribunal took cognizance of the reference on 13-10-1954 and directed the parties to submit respective memoranda. On 15-1-1955, the State Government made another reference under Sec.10, of the dispute between the Company and 29 other workmen, namely, respondents 34 to 62. This notification is Annexure IV to the Companys application and reads as follows:
"No. III/D1-1601/55L-696 -- Whereas an Industrial dispute exists between the management of Bata Shoe Company Ltd., Digha Ghat, Patna, and their workmen mentioned in Annexure "B" re
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