# THE STATE OF BIHAR v. D. N. GANGULY. & OTHERS

- **Citation:** [1959] 1 S.C.R. 1191
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** Venkatarama_ Aiyar, Gajendragadkar A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bihar-v-d-n-ganguly-others-1467
- **Pages:** 20

## Headnote

and
Industrial Dispute-Supersession of adjudication pending before
industrial tribunal--V alidity-Power of appropriate Govcm111entIndustrial Disputes Act, I947 (XlV .of I947), s. IO(I)-General
Clames Act, r897 (ro of I897), s. ZI.
SecticJ'n ro(r) of the Industrial Disputes Act, 1947, does not
confer on the appropriate Government the po\ver to cancel or
supersede a reference made thereunder in respect of an industrial
dispute pending adjudication by the tribunal constituted for
that purpose.
Nor cans. 21 of the General Clauses Act, 1897.
vest such a po\ver by necessary iinplication.
It is well settled that the rule of construction embodied in
s. 2r 11.f the General Clauses Act can apply to the provisions of a
statufe only where the subject matter, context and effect of such
provisions are in no 'vay inconsistent ,vith such application.
So
judged it is clear that that section cannot apply to~. ro(r) of the
Industrial Disputes Act.
•
Mimyva Mills Ltd. v. Their Workmen, [r954] S. C.R. 465,•
held inapplicable.
•
]{ anskuntar
Kishanchand
v.
The Union of
India
Vc11halara111a
Aiyar ].
August 22.
•
The Stale of
'.
D .• "'l. GaHJ:u!y
and Utlio.~
•
•
1192
SUPREME COURT REPO!TS
[1959]
.. St"'i:cbo11rd .lla:111f11cl11ri'1g c:o. Lid. v. G11tta Mil! Workers'
L" mo,,, [1953] S. C. K 439, explained.
·r1u 1·cxtilc lForkcrs· Unio:t, 11nzritsai- , .. J"/1,; State of 1)unjab
a11d others, A. I. K 1057 Pun. 255 and Haro1dro11ai/1 Bose v.
Sffond !11ri11slrial Tribunal, [1958j 2 L.L.J. 198, overruled.
Soutlz l11dia11 /::stale Lahortr R('lalions Organi'salion v. 1·h~ State
of Mailras, A.I.I~. 1955 ;\[ad. 45, distinguished.
Consequently, where the appropriate Go,·ernment by two
notifications, issued one aftt·r the other, referred t\VO industrial
disputes between two batches of workmen and their employer
for adjudication to the industrial tribunal constituted for that
purpose and, thereafter, hy a third notification superseded the
two earlier notifications and the High Court, on the applications
of both the workmen and the employer under Arts. 226 and 227
of the Constitution, issued a writ of certiorari quashing that
notification an<I by a \vrit of rnancla1nus required the tribunal to
proceed expeditiously with the two references and the State
Government appealed:
Field, that the impugned notification was innlid and ultra
Yircs an<! the finding of the High Court must be affirmed.
Field, further, that since a reference under s. 10(1) of the
In<lustrial Disputes Act was in the nature of an administrat~'·e
act, the tnorc appropriate \\·rit to issue \\'ould be one of 1nandan1us ancl not one in the nature of certiorari.
The Stale of Madras v. <:. P. Sarnlhy, [1953] S. C.H. 334,
referred to.
C1nr.
APPELLATE
Junrso1cTION:
Civil Appeals
~
(l>;, 358 a n<l 359 of 1957.
•
AppealH by special !ettve from the judgment and
.~
decree dated April 4, 19:j6, of the Patna High Court
in :III. .J. C. Xos. 546 and 590 of 1955 .
.!. N. Baneije.e and R. C. Prasad., for tho :ippellant
(In both appeals).
Basanta Chandra Ghose and P. K. Chaf.tfljee, for
respondents Xos. 1-10 & 12-57 in C. A. :'\o. 358,ii>7.
,lf. C. Setalrnd, Atl<miey-Genend of India, N ooni
Chakrarertt,11 and B. P. Mahe.shwari, for respondent
No. 59 in C. A. No. 358/57 and Respdt. ~o. l in"C. ·A.
Xo. 359/57.
'-If. Painail,, for respondent :Xo. 63 in C. A. :Xo. 359,'57.
1958.
August 22.
The Judgment of the CCJurt was
delivered by •
·
•
'
( .
•
•
• '
S.C.R.
SUP~EME COURT REPORTS
1193
GAJENDRAGADKAR J.-Where an industl'ia.l dispute
has been referred to a tribunal'for adjudication by the
h
1 lie State of
appropriate government under s. 10 (1) (cl) of t e
Bihar
Industrial Disputes Act, 1947, (XIV of 1947), can the
v.
said government supersede the said reference pending
D. N. Ganguly
adjud'ication before the tribunal constituted for that
and Others
purpose? That is the short question which falls to be
.
-. -
k
·d
d ·
h
t
1 b
• 11
Tl Ga;rndragad ar ].
cons1 ere rn t ese wo appea s y spec1a eave.
ie
question arises in thi

## Text

_Characters 0–39,978 of 46,730. This is a partial read: ask again with offset=39978 for what follows._

i •
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S.C.R.
sui'RE!IIE COURT REPORTS
1191
the decision now under challenge. It is sufficient
answer to this contention that the :Federal Court had
power under s. 3(a) (ii) to grant leave only when the
proposed appeal was against a judgment, and that,
under the definition in s. 2(b}, meant a judgment,
decree or order of a High Court in a civ ii case ; and
that on our conclusion that the decision in the appeal
under s. 19(1) (f) is not a judgment, decree or order
but an award, no order could have been passed
granting special leave under s. 3(a) (ii).
In the result, we dismiss both the appeals as
incompetent. _The parties will bear their own costs in
this Court.
Appeals dismissed.
THE STATE OF BIHAR
v.
D. N. GANGULY. & OTHERS
(VENKATARAMA_ AIYAR, GAJENDRAGADKAR
A. K. SARKAR JJ.)
and
Industrial Dispute-Supersession of adjudication pending before
industrial tribunal--V alidity-Power of appropriate Govcm111entIndustrial Disputes Act, I947 (XlV .of I947), s. IO(I)-General
Clames Act, r897 (ro of I897), s. ZI.
SecticJ'n ro(r) of the Industrial Disputes Act, 1947, does not
confer on the appropriate Government the po\ver to cancel or
supersede a reference made thereunder in respect of an industrial
dispute pending adjudication by the tribunal constituted for
that purpose.
Nor cans. 21 of the General Clauses Act, 1897.
vest such a po\ver by necessary iinplication.
It is well settled that the rule of construction embodied in
s. 2r 11.f the General Clauses Act can apply to the provisions of a
statufe only where the subject matter, context and effect of such
provisions are in no 'vay inconsistent ,vith such application.
So
judged it is clear that that section cannot apply to~. ro(r) of the
Industrial Disputes Act.
•
Mimyva Mills Ltd. v. Their Workmen, [r954] S. C.R. 465,•
held inapplicable.
•
]{ anskuntar
Kishanchand
v.
The Union of
India
Vc11halara111a
Aiyar ].
August 22.
•
The Stale of
'.
D .• "'l. GaHJ:u!y
and Utlio.~
•
•
1192
SUPREME COURT REPO!TS
[1959]
.. St"'i:cbo11rd .lla:111f11cl11ri'1g c:o. Lid. v. G11tta Mil! Workers'
L" mo,,, [1953] S. C. K 439, explained.
·r1u 1·cxtilc lForkcrs· Unio:t, 11nzritsai- , .. J"/1,; State of 1)unjab
a11d others, A. I. K 1057 Pun. 255 and Haro1dro11ai/1 Bose v.
Sffond !11ri11slrial Tribunal, [1958j 2 L.L.J. 198, overruled.
Soutlz l11dia11 /::stale Lahortr R('lalions Organi'salion v. 1·h~ State
of Mailras, A.I.I~. 1955 ;\[ad. 45, distinguished.
Consequently, where the appropriate Go,·ernment by two
notifications, issued one aftt·r the other, referred t\VO industrial
disputes between two batches of workmen and their employer
for adjudication to the industrial tribunal constituted for that
purpose and, thereafter, hy a third notification superseded the
two earlier notifications and the High Court, on the applications
of both the workmen and the employer under Arts. 226 and 227
of the Constitution, issued a writ of certiorari quashing that
notification an<I by a \vrit of rnancla1nus required the tribunal to
proceed expeditiously with the two references and the State
Government appealed:
Field, that the impugned notification was innlid and ultra
Yircs an<! the finding of the High Court must be affirmed.
Field, further, that since a reference under s. 10(1) of the
In<lustrial Disputes Act was in the nature of an administrat~'·e
act, the tnorc appropriate \\·rit to issue \\'ould be one of 1nandan1us ancl not one in the nature of certiorari.
The Stale of Madras v. <:. P. Sarnlhy, [1953] S. C.H. 334,
referred to.
C1nr.
APPELLATE
Junrso1cTION:
Civil Appeals
~
(l>;, 358 a n<l 359 of 1957.
•
AppealH by special !ettve from the judgment and
.~
decree dated April 4, 19:j6, of the Patna High Court
in :III. .J. C. Xos. 546 and 590 of 1955 .
.!. N. Baneije.e and R. C. Prasad., for tho :ippellant
(In both appeals).
Basanta Chandra Ghose and P. K. Chaf.tfljee, for
respondents Xos. 1-10 & 12-57 in C. A. :'\o. 358,ii>7.
,lf. C. Setalrnd, Atl<miey-Genend of India, N ooni
Chakrarertt,11 and B. P. Mahe.shwari, for respondent
No. 59 in C. A. No. 358/57 and Respdt. ~o. l in"C. ·A.
Xo. 359/57.
'-If. Painail,, for respondent :Xo. 63 in C. A. :Xo. 359,'57.
1958.
August 22.
The Judgment of the CCJurt was
delivered by •
·
•
'
( .
•
•
• '
S.C.R.
SUP~EME COURT REPORTS
1193
GAJENDRAGADKAR J.-Where an industl'ia.l dispute
has been referred to a tribunal'for adjudication by the
h
1 lie State of
appropriate government under s. 10 (1) (cl) of t e
Bihar
Industrial Disputes Act, 1947, (XIV of 1947), can the
v.
said government supersede the said reference pending
D. N. Ganguly
adjud'ication before the tribunal constituted for that
and Others
purpose? That is the short question which falls to be
.
-. -
k
·d
d ·
h
t
1 b
• 11
Tl Ga;rndragad ar ].
cons1 ere rn t ese wo appea s y spec1a eave.
ie
question arises in this way: On October 8, 1954, by
Notification No. III/DI-1602/54-L-15225, the government of Bihar referred an industrial dispute between
the management of the Bata Shoe Co. Ltd., Dighaghat
(Patna), and their 31 workmen, mentioned in annexure
' A ', in exercise of the powers conferred on the said
government bys. 7 read withs. 10(1) of the Act. The
dispute was whether the dismissal of the workmen in
question was justified; if not, whether they were
entitled to reinstatement or any other relief. For the
adjudication of this dispute, an industrial tribunal
with Mr. Ali Hassan as the sole member was constituted. This was reference No. 10 of 1954.
Then, on
January 15, 1955, by Notification No. III/Dl-1601/55
L. 696, a similar industrial diwute between the same
Bata Company and its 29 other workmen was referred
by the government of Bihar to the same tribunal.
This was reference No. l of 1955.
While l;he proceedings in respect of the two references, which had been
consolidated by the tribunal, were pending before it
and had made some progress, the government of Bihar
issued a third Notification No. III/Di-1601/55-L-13028
on Septe'mber 17, 1955, by which it purported to
supersede the two earlier notifications, to combine the
said two disputes into one dispute, to implead the two
sets of workmen involved in the two said disputes
together, to add the Bata Mazdoor Union to the dispute, and to refer it to the adjudication of the industrial tribunal of Mr. Ali Hassan as the sole member.
The •dispute thus referred to the tribunal was,
" Whether the dismissal of the 60 workmen, mentioned
in annexure 'B ', was justified or unjustified ; and .to
what relief, ifany, those workmen are entitled?" On 0
receipt tif this notification, the tribun.al passed an
•
•
Tiu .<.,·fnft of
ilihar
v.
D. /\~. Ga11c11ty
a11J O/htr.~
ll!J4
• '
SUPREME CO'CRT R.EPOfTS
(1959]
order on Septemlwr 19, 1955, cancelling the hearing of
the two prior referenc~s which had Leen fixed for
October 3, l!J55, a11<l <lirecting that the tiles of the said
reforellt•e;; should be closed.
The Bata Company and its workmen thell fikd two
separate applications before the lligh Court of ',Jndicature at P<ttn:1 under articles 22() and 227 of the
GujmJrngadk., .f. Collstitution and prayed that the last notificat.ion
•
should be quashed as being illegal and ultra vires.
These two :1pplications were numbered :ts lll. ,J.C. ~os.
546 am! 590 of 1955 respcctil-ely.
On April 4, !!l;j(),
tli<: High Court held that t.l1c government of Bihar
Imel no power or 11.uthority to supersede the earlier
11otilications, n.llowed both the applicatiolls am! isslleti
"writ ill the nn.ture <if cerf.iurai quashing the impugned
llOtificatioll of ~eplf·mber 17, 1955, and also 11. writ ill
t lw nature of mundanws requiring the inclustri1d tribunal to proceerl <•X]W<litiously with reforcn<:c-cast>S X os.
IO of 1954 alld I of 1955 ;111d to bring them to a conclusion in accordn.ncc wit.h law.
Against this ord<'r
the government of Bihar applied for and obtain'ed
leave from this conrt 011 ,June 26, 1956. That is how
the two pre.sent :tppcal;; ha\·c come for disposal before
.
.
us.
In both tlw app<,als, tlH' appellant is the State of
Bihar aml the rcspondcllts arc the Batn. Comp:rny
and its workmen respecti\'ely. On behalf of tlw appellant, it is urged hcfore us t.li:it the High Court. at
1:'1Ltna. was in el'l'<lr in holding that \.he governrnellt. of
Bihar had no [)()"·er nr authority to set. aside the t.wo
earlier notificat.ions tt11d to refer the dispute
in
1piestion fo1· "'dj<tdic<ttion to the industrial t.l'ibunal
undPr s. 10(1) of the Act..
Tll order to appreciak the backgrouml of the impugned notificat ioll, it. would be rel<waut to mention
some mat<'ri;d facts.
It appe:us that the workmell of
the company's factory at. Digha formed a unioll at
the close of the h1st World War. The president ~,f the
said ullion was :\Ir. ,John am! its treneral seeretarv 11·as
:llJ-. Fateh '.:'\arain ~ingh. On J1iiie 22, 1947, the' comp:i.nv entered into a c:ollective agreement with the said
• unioll and by,mut,ual consent the Standing O~lcrs and
•
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I
S.C.R.
SUPtiEME COUH-T REPORTS
1195
Rules, certified under the lqdustrial Employment
'958
(Standing Orders) Act of 1946, were settled.
The
1
Tire State of
union was recognised as the sole and exclusive co lee.
Blha'
tive bargaining agency for the workmen of the comv.
pany .• Towards the end of 1954, two groups of the
D. N, Ganguly
union were formed and rivalry grew between them.
and Othm
One group was led by Mr. Fateh Narain Singh and
.
-
other by Mr. Bari. On January 22, 1954, the union GaJendragadka' f.
through its general secretary Mr. Fateh Narain Singh
served on the company a " slow down notice " with
effect from February 24, 1954, and on February 6,
1954, Mr. Bari purporting to act as the president of
the union asked his followers to go on strike as from
February 23, 1954. The demands made by Mr. Fateh
Narain Singh gave rise to conciliation proceedings
under the Act and ended in the settlement which was
duly recorded on February 8, 1954. In spite of the
said settlement some workmen, including the sixty
workmen in question who supported Mr. Bari, went
on .an illegal strike on February 23, 1954, although
as members of the union they were bound by the
settlement.
The majority of the workmen were
OJJilOSed to the strike and in fact on February
16, 1954, a letter signed by 500 workmen who disassociated themselves from the strike, was received
by the company. The company was requested to
make suitable arrangements to enable these workmen
to attend their duties. The strike succeeded only
partially because out of 854 workmen employed in
the compu.ny's factory at Digha nearly 500 workmen attended the. factory in spite of the threats of
the strikers. The strike was declared illegal by the
appellant under s. 23 (c) of the Act. Subsequently,
the company served the strikers with charge-sheets
and in the end, 274 workmen, including the sixty
workmen in question, were dismissed from service by
•
the campany. Thereafter the union entered into
negotiations with the company, as a result of which it
was agreed that llO strikers would be employed bJ'
the company in the same manner in which 7() strikers
had alrel)dy been employed by it. It ·was further •
152
•
Thi Stale of
lJiliar
v.
)). ll/. Ganguly
and Otlurj
•
1196
St:PHE!IIE COURT REPfJRTS
(1959]
agreed t.h11t 30 striker.'! were t-0 rem:iin dismissed and
not considered eligible for employment or for any
benefits. In regard to the remaining 30 strikers, the
company agreed to consider their <:ases later on for reemployment.
During these negotiations, the sixty
workmen in <1uestion did not make any demand to t}w
management for re-instatement either iudid<lually or.
Gajend,.gadkm J. collectively, nor was thoir case raised by any other
•
•
•
organisation or body of workmen.
In the result, so
far as the 1mion was concemed t.he dispute regarding
the whole body of strikers who had been dismissed by
the company came to an end by virtue of the agrooment between the company and the union.
~ot withstanding this agreement, :llr. Sinha, the conciliation officer, wrote tot.he company on September 3,
l!l:i4, that he 11"sired to hold conciliation proceedings
in respect of some of the dismissed workmen. The dispute rai,;ed by the sixty workmen was not sponsored
by any organisation or body of workmen.
In fact the
secretary of the union wrote to the Commissioner of
Labour on September 22, 1954, that he strongly
objected to the :~lleged dispute of sixty workmen being
reforred to adjudiea.tion.
Lt was under these ci1·cumstances that the :ippelbnt i~sucd the first two notifications on Oct-0bcr 8, 1954 and January 15, 1955.
On May :JO, 1955, the union made an application
before the tribunal alleging that the majority of the
workmen were opposed to the ro-instateme11t of the
sixty workmen in question and consequently it had
interest in the proceedings before the tribunal. Two
applications were made before the tribunal by othe.r
workmen lo be joined to the proceedings on the
ground that tht>y were opposed to the re-instatement
of the workmen whose cases were pending before the
tribunal. All these :~pplica tions were rejected by the
tribunal.
lt would appear that Jlr. Fateh Xarain Sin~1 then
mo,·ed the Department of Labout", Go\·ernment of
Bihar, a111l it was apparently pursuant to the representation made bv him that the third notification was
issued by the appellant superseding the firs~ two notifications m1tl referring the whole dispute afresh to the
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S.C.R.
SUP~E:ME COURT REPORTS
1197
industrial tribunal with the union of Mr. :E'ateh Narain
Singh added as a party to the.proceedings. That in
Tlte State of
brief is the genesis of the impugned notification in the
Bihay
present case.
v.
Dr . .J3annerjee for the appellant has urged before us
D. N. Gangnly
that in dealing with the question about the powers of
and Others
the appropriate government under s. ion) of the Act,
.
k
1
it would be necessary to bear in mind the facts which Ga;endragad "' •
led to the cancellation of the first two notifications
and the issue of the third impugned notification. He
contends that in issuing the third notification the
appellant has acted bona fide and solely in the
interests of fair-play and justice; it came to the conclusion that it was necessary that the union should be
heard before the disputes in question are adjudicated
upon by the Industrial Tribunal and that it would be
more convenient and in the interest of industrial peace
and harmony that the dispute should be referred to
the tribunal in a more comprehensive and consolidated.
forQl bringing before the tribunal all the parties
interested in it. In our opinion, the bona fldes of the
appellant on which reliance is placed by Dr. Bannerjee
ar~ really not relevant for detocmining the appellant's
powers under s. 10(1) of the Act. If the appellant has
authority to cancel the notification issved . under
s. 10(1), and if the validity of the cancelling notification is challenged on the ground of -mala fides, it may
be relevant and material to inquire into the motives of
the appellant.
But if the appellant has no authority
to cancel Qr revoke a notification issued under s. 10(1),
the bona fides of the appellant can hardly validate t.he
impugned cancellation. That is why, we think, the
appellant cannot base its arguments on the alleged
bona fides. of its conduct.
It is conceded by Dr. l3annerjee that the Act does
not expressly confer any power on the appropriate
goverlj,lllent to cancel or supersede a reference made
under s. 10(1) of the Act. He, however, argues that
the power to cancel or supersede such a refei;ence'must
be held to be implied, and in support of his argumerrt
he relies on the provisions of s .. 21 of the General •
Clauses Act, 1897 (X of 1897).
Seclion.21 provides
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1198
SUPRE~IE COURT REPqI~TS
[1959]
that "where, hy an:l; Centml Act or Regulation, a
power to issue notifications, orders, rules or byo-laws is
[Ju Str1tc of
J"
d
1.
1
· 1 <l
u,h,,
cn111c~rre , tuen t 1;i,t power mc u es a power, cxer.
v.
cisablc' in the like mauner and subject t:o the like
JJ. s. ,;,,.,g.zy sanction a1ul conditions (if any), to add to, ;rnwnd,
vary or rescind any notifications, orders, rules or by".
laws so issued". It is well settled that this section
Gaje,,drac"dku' 1 embodies a rule of construction an<l the question
•
whether or not it applies to the provisions of a pMti.
cnlar statnt-0 would depend on the subject-m;i,tter,
contrxt., and the effect, of the relevant. provisions of
tho said statute. In other words it would he neccssan·
to examine carefully the scheme of the Act, its object
and all its relevant 1tnd material provisinns before
<leciding whet.her by the application of t.he mle of
construction enunciated by s. 21, the appclhrnl's con.
tent.ion is justifie<l that the power to cancel the refer.
ence made under s. 10(1) can be said to vest in the
appropriate government by necessary implication. If
we come to the conclusion thn.t the context and effect
of the relevant pro\·isions is repugnant t-0 the applica.
tion of the said rule of construction, the appellant
would not he ent.itle<l tu invoke tho assistance of J he
said section.
We must, therefore, proceed t.o oxamine
the releva.pt provisions of the Act it.self.
It is clear that the pnlicy of the Act is t-O secure and
presen·e good relations between the employers a.nd
their workmen and t-0 maintain industrial peace and
harmony. It is with this object thats. 3 of the Act
c<mtcmplatcs the establishment of the \V.orks Com.
mitt<.~s whose dnty it is to promote measures for securing and preseITing amity and good relations· between
the employers and the workmen. If the Works Committee is unable to settle the disputes arising between
the employer and his workmen, conciliation officers
and the boards of conciliation offer assistance to the
parties to settle their disputes. Sections 3, 4, 5. 12 and
13 refer to the working of this machinery contemplat.
cd by the Act. lt is only where the conciliation
1nachinery fails to bring about settlement between the
•
parties that the Act contemplates compulsor.\ adjudication of thc.ind11strial disputes by labour courts and
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S.C.R.
SUPJ,EME COURT REPORTS
1199
tribunals as the last alternative. The appropriate
1958
government is authorised to ?onstitute labou~ .courts
The 5101, of
and tribunals under and subiect to the prov1s10na of
Bihar
s. 7 and s. 7 A respectively. It is in respect of the
v.
comp1J]sory adjudication that under s. 10, the approD. N. Ganguly
priate government is given wide discretion to decide
0 "d Others
whether or not the dispute between the employer and G .
, -dk
1
d
,.
b
d
o;c;1uraga
ar
.
his employees shoul be reierred to the oar , court or
tribunal. Section 10 (I) (d) provides inter alia that
where the appropriate government is of opinion that
any industrial dispute exists or is apprehended, it may
at any time, by order in writing refer the dispute
to a tribunal for adjudication. The condition precedent for the reference to the industrial tribunal
is that the appropriate government must be satisfied that an industrial dispute exists or is apprehended. It is not in every case where the parties
allege the existence of an industrial dispute that a
rderence would be made under s. 10 (1); it is only
wQ.ere the test of subjective satisfaction of the appropriate government is satisfied that the reference can
be made. Thus it is clear that the appropriate government is given an important• voice in the matter of
permitting industrial disputes to seek adjudication by
reference to the industrial tribunal. But on.ce an order
in writing is made by the appropriate government
referring an industrial dispute to the tribunal for
adjudication under s. 10 (1), proceedings before the
tribunal are deemed to have commenced and they are
deemed 1" have concluded on the day on which the
a ward made by the tribunal becomes enforceable under
s. 17 A: This is the effect of s. 20(3) of the Act. This
provision shows that after the dispute is referred to
the tribunal, during the continuance of the reference
proceedings, it is the tribunal which is seized of the
dispute and which can. exercise jurisdiction in respect
of it. •The appropriate government can act in respect
of a reference pending adjudication before a tribunal
only under s. 10(5) of the Act, which antkorises it to
add other parties to the pending dispute subject to the
conditioqs mentioned .in the said provision. It would•
therefore be reasonable to hold that eX'1ept for cases
•
•
•
1200
SUPRE:IIE COURT REPqRTS
[1959]
falling
11ncler s. 10(5) tho appropriate go,·crnment
stands outside the reference proceedings, which are
Tl~e Sln!t of
cl
}
l
Riha•
un er tie contro and jurisdiction of the trilrnnal itself.
v.
Even after the award is made it is obligatory on the
n .v. c;anp<iy 11ppropriate government under s. 17(1) to publish the
""d mhers
said award within a period of thirty days from the
. .
-
k
date of its receipt by the appropriate government.
G•J'"dragad "' J. Sub.section (2) of s. 1·7 says that subject to the provisions of s. 17A, the award published under sub-s. (1)
of s. 17 shall be finn.l and shall not he called in quest.ion
by any court in any manner whatsoever. Section l!J{3)
lH'O\'idc,, tha.t an award Ahal!, subject to the other pro.
viHions of s. l!J, remain in operation for a period of one
year from the date on which it becomes enforceable
under s. 17A. It is true that ss. 17A and 19 confer on
the appropriate government powers to modify the
prm·isions oft he award or limit the period of its opera.
I.ion but it is unnecessary to refer to these provisions
in detail. The scheme of the provisions in Chapters
I II and IV of the Act would thus appear to be to le;i ve
the refrrcnce proceedings exclusively
within the
jurisdiction of the tribunals constituted under the Act
and to make the aw~rds of such tribunals bindipg
between the parties, subject. to the special powers conforred on the appropriate government under ss. 17 A
and 19. The appropriate govemment. undoubtedly has
the initiative in the matter. It is only where it makes
an order iu writing referring an industrial dispute to
t.he adjudication of the tribunal that the reference
proceedings can commence; but the sche1ne of the
relevant provisions would primci facie seem to be
inconsist cnt with any power in the appropriate- govorn.
ment to cancel the reference made under s. IO (I).
•
The power <:!aimed by the appellant to cancel a
reference made under s. lO(l) scmns also to be inconsistent with sume other provisions of the Act. The
proviso to s. IO lays down that the appropriate gpvernment shall refer it dispnle relating to the public utility
service when a notice under s. 22 has been given, unless
ir considers that. the notice has been frivolonsly or
• vexatiously given, or tha.t it would be inexpcc!ient so to
refer the dispute.· This proviso indicat-0s that in regard
•
. '
..
~ .
•
S.C.R.
SUP~EME COURT REPORTS
1201
to a dispute relating to public utility concerns normally
r95B
the government is expected to refer it for adjudication.
The State of
In such a case if the government makes the reference
Bihar
it 1s difficult to appreciate that it would be open to the
v.
goverpment pending the proceedings of the said
D. N. Ganguly
reference before the Industrial Tribunal to cancel the
and Othm
reference and supersede its original order in that
.
-
k
1
behalf. Section IO, sub-s. (2) deals with the case where""Jendragad ar
..
the parties to an industrial dispute apply to the appropriate government in the prescribed manner, either
jointly or separately, for a reference of the dispute tu
the appropriate authority, and it provides that in such
a case if the appropriate government is satisfied that
the persons applying represent the majority of each
party it shall make the reference accordingly. In such
a case all that the government has to satisfy itself
about is the fact that the demand for reference is made
by the m11jority of each party, and once .this condition
is satisfied, the government is under obligation to refer
tho dispute for industrial adjudication. It is inconceivable that in such a case the government can claim
power to cancel a reference made under s. 10(2). Indeed
in the· course of his argumen*s, Dr. Bannerjee fairly
conceded that it would be difficult to sustain a claim
for an implied power of cancellation in i;espect of a
reference made under s. 10(2).
There is another consideration which is relevant in
dealing with this question. Section 12 which deals
with the duties of the conciliation officer provides in
substanc~ that the conciliation officer should try his
best to bring about settlement between the parties.
If no settlement is arrived at, the conciliation officer
has to make a report to the appropriate government,
as provided in sub-s. (4) of s. 12.
This report must
contain a full statement of the relevant facts and
circumstances and the reasons on account of which in
the O]ilinion of the officer the settlement could not be
arrived at. Sub-section (5) then lays down that if, on
a consideration of the report, the appropria.te government is satisfied that there is a case for reference tci a
board, labour court, tribunal or national tribunal, it•
may mafre such a reference.
Where the appropriate
•
•
•
1202
SUPRE:IIE COURT REPlfRTS
[1959]
go\·ernment does not. umke such a reference it shall
record and eommunicate to the lJarties eoncemed its
T/1~ Slate of
liihat
reason~ therefor.
This pro\"ision imposes on the
v.
appropriate government an obligation to record its
D. N. Gang1</y
reasons for not. making 11 reference after recei,ving a
ar1d U1hm
report from the conciliat.ion offic.:r and to comm uni-
.
-
caw the said reasons to the parties concerned. It
G•i•ndrncadka, J. would show that when the efforts of the conciliation
•
officer fail t-0 settle a dispute, on receipt of the conciliation officer's report by the appropriate government, the government would normally refer the dispute
for adjudication ; but if the government iH not satislicd that a reference should be made, it is required t-0
communicate its reasons for its decision t-0 the parties
concerned. Jf the appellant's argument is accepted, it
would nwan that enm after the order is made br the
appropriate government under s. 10(1), the· said
government can cancel the said order without gi,·ing
any reasons. This position is clearly inconsistent with
the policy underlying the provisions of s. 12(5) of.the
Act. In our opinion, if the legislature had intended
to confer on the appropriat-0 gO\'crnment the power to
carn:el an order ma< le under :;. 10(1), the lcgislatqre
would h1we made a specifie provision in that behalf
and would.have prescribed appropriate lilllitations on
the exercise of the said p-0wer.
It is, hOll'('\·er, urged that if a disp11le referred to
the industrial triu111i:d 11nder s. 10(1) is settled between
the part.ies, the only remedy for gi\·ing effect to s11ch
a compromise would be to cancel the refcre~ice and to
take the proceedings out of the jurisdiction of tho
industrial tribunal.
This argument is based on the
assumption that the industrial tribunal would have to
ignore the settlement by the parties of their dispute
pending Lefore it and would ha\'c to make an a.ward
on the merits in spite of the said settlement. We an·
not satisfied that this argument is well-foundL'<i,. lt is
true that the Act does not contain any provision
spe<:ificall,l( authorising the industrial tribunal to recbrd a compromise ll.nd pass an award in its terms
• conesponding t-0 the provisions of 0. XXIII, r. 3 of
the Code of Ci\·il· Procedure.
But it would' be very
•
•
-
I •
_
.. f
•
S.C.R.
SU!fltEME COURT REPORTS
1203
unreasonable to assume that .the industrial tribunal
z95B
would insist upon dealing with the dispute on the
h
The Stale of
merits even after it is informed that the dispute as
Bihar
been amicably settled between the parties.
We have
v.
alrea~ indicated that amicable settlements of ind usD. N. Gang11ly
trial disputes which generally lead to industrial peace
and Othm
and harmony are the primary object of this Act.
-
Settlements reached before the conciliation officers or Gajendragadkar f·
boards are specifically dealt with by ss. 12(2) and 13(3)
and the same are made binding under s. 18. There
can, therefore, be no doubt that if an industrial dispute
before a tribunal is amicably settled, the tribunal
would immediately agree to make an award in terms
of the settlement between the parties. It was stated
before us at the bar that innumerable awards had
been made by industrial tribunals in terms of the
settlements between the parties. In this connexion
we may incidentally refer to the provisions of s. 7
(2)(b) of the Industrial Disputes (Appellate Tribunal)
Ac1;, 1950 (XLVIII of 1950), which expressly refer to
an award or decision of an industrial tribunal made
with the consent of the parties. It is true that this
Aat is no longer in force; but "When it was in force, in
providing for appeals to the Appellate Tribunal set
up under the said Act, the legislature had.recognised
the making of awards by the industrial tribunals with
the consent of the parties.
Therefore, we cannot
accept the argument that cancellation of reference
would be necessary in order .to give effect to the amicable settle111ent of the dispute reached by the parti11s
pending proceedings before the industrial tribunal.
In this connexion it may be relevant to refer to
some other provisions of the Act., which impose restrictions on the parties during the pendency of the reference proceedings.
Under s. 10(3), where an industrial
dispute has been referred to an industrial tribunal,
•
the aP!Jropriate government may by order prohibit
the continuance of any strike or lock-out in COI;t.I1'3Xion
with such dispute which may be in existen\!e on th!l
cl.ate of the reference. Similarly, un<,ler. s. 3.3, during thy
pendency ,of the proceedings b~foi;e ap industrial tribu-
•
nal, no employer shall (a), in regard to•any m~~ter
connected with the dispute, 'alter, to the prejudice • •
ISJ
I
•
1204
SUPRE::\IE COURT REP(lRTS
[l!l59]
i958
of the workmen covccrned in such dispute, the
conditions of service applicable to them immediately
Thi St alt of
b r
]
f
]
b r
Hil•a•
e1ore t ic commencement o sue i proceedings or ( ) ior
v.
any misconduct connected with the dispute, discharge
D. N. Ga"g"ly or punish, whether by dismissal or otherwise, any
a"d Othm
workmen concerned in such dispute, save with the
. --
express pcrmissio11 i11 writing of the authority before
Ga1.,,d•acadha• J. which the proceeding is pending. Failure to comply
with the provisions of s. 33(1) is ma.de punishable
under s. 31 of the Act. These provisions show that
during the pendency of the proceedings before the
industrial tribunal the parties to the dispute are expected to maintain status quo ancl not to take any
action which would disturb industrial peace or prejudice a fair trial before the industrial tribunal. If the
power to c1rnccl it reference made under s. 10 (l) is held
to be implied, the proceedings before the industrial
tribunal can be terminated and superseded at any
stage and obligations and liabilities incurred by the
parti~s during the pendency of the proceedings would
be materially affected. It is because all these provisions are intended to operate as a self-contained Code
governing the compuJosory adjudication of indust1:.ial
disputes nuder the Act, that s. 15 enjoins upon the
industrial tribunals to hold their proceedings expcdi.
tiously and to submit their awards as soon as it is
practicable on the conclusion of the proceedings to the
appropriate government. Thus time is usually of
essential importance in irulustrial adjudications and so
the Act imposes a.u obligation on tho indus~rial tribunals to deal with their proceedings as ex1mditiously as
possible. If thfl appropriate government· has by
implication the power to cancel its order passed under
s. 10(1), the proceedings before the industrial tribunal
would be rendered wholly ineffective by the exercise
•
of such power.
Apart from these provisions of the Act, on ~cneml
principles it seems rather difficult to accept the argument that. the appropriate government should have an
implied power to cancel its own order made under
• s. 10(1). If on the representation made by the,, employer
or his workmen the appropriate government considers
the matter fully and r~aches the conclusion that an
•
• I
•
•
•
S.C.R.
SUPltEME COURT REPORTS
1205
industrial dispute exists or is 3'llprehended and then
makes the reference under s. 10(1), there appears to be
no reason or principle to support the contention that
TheB~~~; of
it has an implied power to cancel its order and put an
v.
end t0o the reference proceedings initiated by itself.
D. N. Ganguly
In dealing with this question it is important to bear in
and Others
mind that power to cancel its order made under
.
-
s. 10(1), which the appellant claims, is an absoluteGn1endragadkar J.
power; it is not as if the power to cancel implies the
obligation to make another reference in respect of the
dispute in question ; it is not as if the exercise of the
power is subject to the condition that reasons for
cancellation of the order should be set out. If the
power claimed by the appellant is conceded to the
appropriate government it would be open to the appropriate government to terminate the proceedings before
the tribunal at any stage and not to refer the industrial
dispute to any other industrial tribunal at all. The
discretion given to the appropriate government under
s. 10(1) in the matter of referring industrial disputes to
industrial tribunals is very wide ; but it seems the
power to cancel which is claimed is wider still; and it is
claimed by implication on the ~trength of s. 21 of the
General Clauses Act. We have no hesitation in holding
that the rule of construction enunciated by &. 21 of the
General Clauses Act in so far as it refers to the power
of rescinding or cancelling the origin<Ll order cannot be
invoked in respect of the provisions of s. 10(1) of the
Industrial Disputes Act.
It would- now be necessary to refer to the decisions
to which our attention was invited in the course of
arguments.· For the appellant Dr. Eannerjee has
strongly relied on the decision of this court in Minerva
Mills Ltd. v. Their Workmen (1 ). He contends that
Mahajan J. who delivered the judgment of the court,
has expressly observed in his jadgment that from the
releva11.t provisions of the Act "It could not be held
that it was implicit in s. 7· that the government could
not withdraw a dispute referred to a tribuna~ or make
the appointment of a tribunal for a limited period of
time." The argument is that this observation shows that •
the government can withdraw a pendil1g reference from
one tribunal and refer it to' another tribunal, 11nd, •
(I) [1954] S.C.R. 465.
•
•
1206
ST:PRE:\!E COt:HT H El'C11{TS
[1959]
accor<ling t-0 the appe!Jnnt, that is exactly what has
been done by it in the present C<tse.
In the ensc> of
·i he Stole nf
Jfinerva Jfills Lfd. {1), hm1·cn)r, the "Uestion about the
fli/Mr
'I
v.
implied power of tlw appropriate go1·ernment to cancel
D ,,._ C•"&"IY
il.s order made under s. IO rlid not arisp, for cono;idera-
•"d 01hm
lion. The point which was raised hy the appellant
was that the go1·crnment had no po>1·cr tD appoint a
Gaje,,d•a.;adko;· J. tribunal for a limited duration; and the argunwnt. was
that if industrial disputes are reforred to a tribunal,
<di the ~aid dispHtcs must be dell'rmincd hy the said
tribunal and not bv anv other tribunal, not withstancling that the a.p1;oint1nent of the original tribunal
was for a. limited duration. The tirst trihuna.l in the
said c:asc hacl been appointf'd on J unc Ji), 1952, and
some industrial disputes had been referred to it. Tho
tribunal was appointed for one year. lJuring i1 s tenure
the tribunal disposed of some of the disputes referred
t<) it, but fonr disputes still remainNl undisposed of.
For disposing of these reference;;, a. second tribunal
was appointed nn June 2i, 1952. The validity of.the
constitution of the second tribunal was impugnccl by
the appellant and it was urgecl that it is the first
trihurrnl alone which Mn and must try the remaining
disputes.
This argument was rejected by this court,
and it was. held that it was perfoct.ly competent to tho
appropriate governm<mt to appoint a trihunal for a
limited duration. lt would he not ired that in this r&se
there wa.s no qm>stion of cancelling an order made
under s. 10(1). The said order remained in fore!', and
the only step which t.he government took \lif\S to make
an order constituting a fresh tribunal to dispose of the
references which had not hcen adjudicated i1pon by
the first tribunal. It was on these facts that this court
took the view that it was competent to the go1·ernment
..
t-0 rcfor the said remaining diHputcs for adjudication to
the second tribunal. Strictly speaking there was no
occasion to withdraw any dispute from the fir!!!. tribunal; the first tribunal had ceased to exist; and so
there wa.; no tribunal which could deal with the remaining disputes already referred under s. I 0( I). That
• is why the. government purported t-0 appoinJ. a second
tribunal to deal \\·ith the said dispute. In our opinion,
the decision in the llftnerva J1ills Ltd. (1) cannot bo
•
(t) [1954] S.C.R. 465.
•
'
•
•
S.C.R.
SUPJtEM:E COURT REPORTS
1207
cited'. in snpport of the proposition that the appellant
i958
has power to cancel the Order of reference made by, it
The State of
under s. 10(1 ).
·
Bihar
The decision of this court in Strawboard Man iiv.
jactiirmg Co. Ltd. v. Gutta Mill Workers' Union ('), is
D. N. Ganculy
then cited in support of the proposition that the
and Othe"
appellant has implied _power to cancel its order made Ga enb~dkar J.
under s. 10(1). In this case, the government of the
1
g
State of Uttar Pradesh had referred an industrial dispute to the Labour Commissioner on February 18,
1950, and had directed the Commissioner to make
his award not later than April 5,
1950.
While
the proceedings were pending before the Commissioner,
two additional issues were referred to him. Ultimately,
t.he award was made on April 13, and it was sought
to be validated by the issue of a notification by the
Governor of Uttar Pradesh on April 26, by which the
time fo1' making the award was
retrospectively
extended up to April 30, 1950. This court held that
the- notification retrospectively extending the period
to make the award was invalid. Since the award had
been made beyond the period prescribed by the
original notification, it was 'void. It is, however,
argued that in dealing with the question of the validity
of the award it was observed by Das J. (its he then
was), "In the circumstances, if the State Government
took the view that the addition of those two issues
would render the time specified in the original order
inadequate for the purpose it 8hould have cancelled
the previaus notification and issued a fresh notification
referring all the issues to the adjudicator and specifying a fresh period of time within which he was to
make his award. The State Government did not
adopt that course." As we read the judgment, we are
not inclined to accept the appellant's assumption that
the passage just cited expresses the view accepted by
this eourt. Read in its context the said passage
appears to state the argument urged by Dr. Tek
Chand on behalf of the appellant. The· appellant
appears to have urged in substance that if the Staie
Government thought that the addition of new issues •
referred to the Commissioner by subseql:!ent notification mad·e it difficult for him to submit his award
(1) f1953] S.C.R. 439·
I
•
..
•
•
1208
SUPREl\IE COURT REP<lRTS
(1959]
within the specified tin~c , tlrn local government should
have cancelled the original reference, made a fresh
The State of
llilwr
comprehensive reference and given him requisite time
v.
for making his award. Since that wag not done, the
D .\'.