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1976 Supreme(Pat) 169
PATNA HIGH COURT
S.Sarwar Ali and R.P.Sinha JJ.
State Of Bihar
Versus
Presiding Officer, Industrial Tribunal, Patna
Civil Writ Jurisdiction Case No. 777 of 1976 ;
Decided On : AUGUST 19, 1976
Headnote:Constitution at India--Art. 226-Mere delay in approaching the High Court for issue of a writ is not fatal-Though there can not be two standards for the Stale as a litigant and any other citizen but it will have to be decided on the facts of each case whether High Court should or should not exercise its powers.
(Paras 4 & 5)
Industrial Disputes Act-Sees. 2 (c) & 10 (1) (d)-Whether a particular project is an industry" has to be decided on the facts which must be pleaded and proved- A project owned by the Stale may be an Industry and cannot be decided on assumptions or Common knowledge in absence of facts-State is not precluded from challenging an award given by a Quasi. Judicial Tribunal by issue of a writ of certiorari.
(Paras 8 & 9)
Constitution of India Arts. 309 & 246- Powers under Articles. 309 to make rules to regulate the recruitment and condition of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State is subject to the provisions of the Constitution -Industrial Disputes Act has been enacted in exercise of powers conferred by the Constitution-Mere having power under Art. 309 does not shut out or affect the proceeding or jurisdiction of an industrial dispute which may have an impact, either directly or indirectly, on the service conditions of persons serving in the Union or the State by a properly constituted Industrial Tribunal.
(Para 12)
Constitution of India-Arts. 309 & 310-The articles stand on different footing-Under Art 310 only express provision of the Constitution can curtail the power whereas Art. 309 is subject to all provisions of the Constitution.
(Para 13)
Constitution of India-Art 309-171 constituting the provision of article the main article has to be read first and not the provision he proviso says that rules made by the Governor can not be superseded except by or under an Act of the appropriate Legislature-It only emphasizes the Fact that the rules made can be superseded by the Legislature-The reference in regard to conditions of service of workmen is neither invalid nor in fructuous.
(Para 14)
Constitution of India- Arts, 226 & 227-A Quasi-.Judicial Tribunal is required to discuss naturals on which it bases as finding-Mere enumeration of the materials is not enough without discussion-The High Court in its supervisory jurisdiction may examine the findings-Adverse inference can be drawn against a party where the documents In its possession is not produced--Where the documents is not-existent or is not in possession of the party no such adverse inference can be drawn-The Quasi-Judicial authority can not ignore materials when can throw light in deciding the issue before it-Quasi Judicial Tribunal acts in error apparent on the face of the record in committing the mistakes indicated justifying issue of a writ of certiorari.
(Paras 18 20)
1. The hearing of this case was concluded on 6th July, 1976 and the case was directed to be placed for Judgment in Court on 12th July, 1976. On that date we were intimated that there was some talk of settling the matter between the parties outside the Court. In view of the nature of the disputes involved and the number of employees affected by the same, we thought it proper that we should give fullest opportunity to the parties to have the matter settled outside the Court if possible. We, therefore, adjourned the delivery of the Judgment on several occasions, but it now appears that it is not possible for the parties to come to any amicable settlement and Judgment has to be delivered in this case.
2. In this writ application the petitioner, the State of Bihar, prays for quashing of the award dated 27th February,1975 (Annex. 1) made by the Respondent No. 1, the Presiding Officer, Industrial Tribunal, Patna, in Reference No. 87 of 1969 and Reference No. 4 of 1970.
3. Certain disputes arose between the petitioner and respondent Nos. 2 and 3, the Workmen of the River Valley Projects Department, Kosi Project, and the Workmen of the River Valley Projects Department, Gandak Project respectively. The notifications dated 19th August, 1969, (Annex. 2) and 4th February, 1970 (Annexure 3) were issued by the Government of Bihar, referring the disputes mentioned in the said notifications, under S. 10(1) (d) of the Industrial Disputes Act, 1947 . Those disputes related to workcharged employees of the Kosi and Gandak Projects of the River Valley Projects Department (hereinafter referred to as the Department). An award was given by the Presiding Officer, Industrial Tribunal, Patna, which is Annex. 1 to this writ application. The disputes referred to for adjudication are mentioned in paragraph 1 of the award and related to four matters but of these we are concerned in this ease with only three of the disputes. Reference to those disputes will be made later.
4. There is a preliminary objection as to the maintainability of the writ application raised on behalf of the contesting respondents, namely, the Workmen of the two Projects. It is said that the award was made on 27th February, 1975, but the writ application was filed on 10th March, 1976. There is thus considerable delay in filing the writ application, and as such, in the circumstances of the case, the discretionary power to examine and quash the award should not be exercised by this Court. It is true that delay is one of the factors to be taken into consideration in the exercise of the discretionary power under Art. 226 of the Constitution, but each case has to be examined on the basis of the relevant facts involved in the case. Mere delay therefore, does not disentitle the petitioner from challenging the award under Art. 226 of the Constitution. In this case, the reason for the delay in filing the present application has been explained in paragraphs 38 to 49 of the writ application. It appears that after a certified copy of the award was received in the Department, which is the River Valley Projects Department, the matter was examined, according to the petitioner, with great care at various levels. First the matter was referred to the Standing Counsel for his opinion in March 1975. Various informations were required for the purpose of formulating the opinion and ultimately the opinion of the Advocate-General was sought to be obtained and the file was sent to the Advocate-General in May, 1975. The Advocate-General, in his turn, endorsed the file to the Government Advocate and the opinion of the Government Advocate was received on 21st June, 1975. On 2nd July,1975, the Advocate General sent his opinion to the Law Department and the file was returned to the River Valley Projects Department on 3rd July, 1975. Thereafter the matter was put up before the Chief Minister, who was also the Irrigation Minister. He ordered the Finance Department to examine the financial implication of the awa
