A 'no dispute' award is not an award within the meaning of Section 2 (b) of the Industrial Disputes Act, 1947 and that a second reference on the same dispute is maintainable.

( 1 ) THIS appeal is directed against the Judgment and Order dated April 28, 2000, passed by a learned Judge of this Court in the writ application being C. R. No. 8201 (W) of 1994 upholding the order dated December 17, 1993 passed by the Third Industrial Tribunal, West Bengal.

( 2 ) RESPONDENT No. 1, Shri Janardhan Singh was employed as member of the security staff in the factory owned by Hindustan Motors Ltd. , the Appellant herein at Hind Motor in the District of Hooghly, West Bengal. His services were terminated by a letter of dismissal allegedly for certain misconduct.

( 3 ) BY an order of reference dated March 18, 1987 the dispute was referred by the State Government to the Fifth Industrial Tribunal, West Bengal ('the Tribunal' for short) under Section 10 read with Section 2-A of the Industrial Disputes Act, 1947 (hereinafter, called "the 1947 Act" ).

( 4 ) INSPITE of service of Notice the parties did not appear and a 'no DISPUTE' award was made by the Tribunal in terms of Rule 22 of the West Bengal Industrial Disputes Rules 1958 (hereinafter called "the 1958 Rules") on November 2, 1987 and the same was published by the State Government on December 10, 1987. After such publication no steps were taken for review in terms of Rule 27 (iii) of the 1958 Rules for setting aside the 'no DISPUTE' award.

( 5 ) HOWEVER, a second reference was made afresh by the State Government by an order dated June 6, 1990, at the instance of Respondent No. 1, on the identical issue of termination of Respondent No. 1.

( 6 ) THE Tribunal rejected the contention on behalf of the Appellant/company that the; second reference was not maintainable on the ground that the 'no DISPUTE' award had not been set aside in accordance with the provisions of Rule 27 (iii) of the 1958 Rules.

( 7 ) THE learned single Judge affirmed the order of the Tribunal relying on the decision in the case of B. R. Harman and Mohatta (India) Pvt. Ltd. v. Seventh Industrial Tribunal, West Bengal and Ors. reported in 1975 C. H. N. 371 wherein it has been held by a Division Bench of this Court that a 'no DISPUTE' award is not an award within the meaning of Section 2 (b) of the 1947 Act and that a second reference on the same dispute is maintainable.

( 8 ) SHRI Dey, learned lawyer appearing for the Appellant contends that the 'no DISPUTE' award dated November 2, 1987 having not been set aside in accordance with the provisions of Rule 27 (iii) of the 1958 Rules, the second reference on the self-same dispute by the State Government is barred. Shri Dey further contends that resort to a second reference on the self-same dispute without taking any steps for setting aside the 'no DISPUTE' award cannot be sustainable in view of the Privy Council decision in 63 LA. 372 (Nazir Ahmed v. King Emperor,) and the Supreme Court decisions in Gujarat Electricity Board v. Girdharlal Motilal and Anr. in and in Ballabhdas Agarwala v. J. C. Chakravarty. It has been held in these decisions that when the legislature provides a mode for exercising certain powers, the said powers shall be exercised in that manner and in no other manner.

( 9 ) MR. Ghosh, learned counsel appearing for the workman on the other hand submits that a 'no DISPUTE' award cannot be an award within the meaning of Section 2 (b) of the 1947 Act and therefore, a second reference is maintainable and the State Government has power to make a second reference if in fact, the dispute exists. Mr. Ghosh also submits that Rules 22 and 27 are merely rules of procedure and cannot override the provisions of the Act.

( 10 ) THE decisions 63 LA. 372 (supra) are not at all applicable to the facts of the case at hand. In the case at hand, in our view, the concerned statute viz, the 1947 Act empowers the State Government to make a second reference at the instance of the workman where the latter has not taken recourse to the provisions contained in Rule 27 (iii) of the 1958 Rules in as much as there has neither been any ad