The State of Bihar Vs. D. N. Ganguly
& Ors  INSC 69 (22 August 1958)
AIYYAR, T.L. VENKATARAMA SARKAR, A.K.
CITATION: 1958 AIR 1018 1959 SCR 1191
Industrial Dispute-Supersession of adjudication
Pending before industrial tribunal-Validity-power of appropriate Government
Industrial Disputes Act, 1947 (XIV of 1947), S. 10(1)-General Clauses Act, 1897
(10 of 1897), s. 21.
Section 10(1) of the Industrial Disputes Act,
1947, does not confer on the appropriate Government the power to cancel or
supersede a reference made there under in respect of an industrial dispute
pending adjudication by the tribunal constituted for that purpose. Nor can s.
21 of the General Clauses Act, 1897, vest such a power by necessary
It is well settled that the rule of
construction embodied in S. 21 of the General Clauses Act can apply to the
provisions of a statute only where the subject matter, context and effect of
such provisions are in no way inconsistent with such application. So judged it
is clear that that section cannot apply to s. 10(1) of the Industrial Disputes
Act. Minerva Mills Ltd. v. Their Workmen,  S. C. R. 465, held
1192 Strawboard Manufacturing Co. Ltd. v.
Gutta Mill Workers' Union,  S. C. R. 439, explained.
The Textile Workers' Union, Amritsar v. The
State of Punjab and others, A. I. R. 1957 pun. 255 and Hayendranath Bose v. Second
Industrial Tribunal,  2 L.L.J. 198, overruled.
South Indian Estate Labour Relations
Organisation v. The State of Madras, A.I.R. 1955 Mad. 45, distinguished.
Consequently, where the appropriate
Government by two notifications, issued one after the other, referred two
industrial disputes between two batches of workmen and their employer for
adjudication to the industrial tribunal constituted for that purpose and,
thereafter, by a third notification superseded the two earlier notifications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 and by a writ of mandamus required the tribunal to
proceed expeditiously with the two references and the State Government
Held, that the impugned notification was
invalid and ultra vires and the finding of the High Court must be affirmed.
Held, further, that since a reference under
s. 10(1) of the Industrial Disputes Act was in the nature of an administrative
act, the more appropriate writ to issue would be one of mandamus and not one in
the nature of certiorari.
The State of Madras v. C. P. Sarathy, 
S. C. R. 334, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 358 and 359 of 1957.
Appeals by special leave from the judgment
and decree dated April 4, 1956, of the Patna High Court in M. J. C. Nos. 546
and 590 of 1955.
J. N. Banerjee and R. C. Prasad, for the
appellant (In both appeals).
Basanta Chandra Ghose I and P. K. Chatterjee,
for respondents Nos. 1-10 & 12-57 in C. A. No. 358/57.
M. C. Setalvad, Attorney-General of India,
Nooni Chakraverty and B. P. Maheshwari, for respondent No. 59 in C A. No.
358/57 and Respdt. No. 1 in C. A. No. 359/57.
R.Patnaik, for respondent No. 63 in C.A. No.
August 22. The Judgment of the Court was
delivered by 1193 GAJENDRAGADKAR J.-Where an industrial dispute has been referred
to a tribunal for adjudication by the appropriate government under s. 10 (1)
(d) of the Industrial Disputes Act, 1947, (XIV of 1947), can the said
government supersede the said reference pending adjudication before the
tribunal constituted for that purpose ? That is the short question which falls
to be considered in these two appeals by special leave. The 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., Digbaghat (Patna), and their 31 workmen, mentioned in
annexure I A', in exercise of the powers conferred on the said government by s.
7 read with s. 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/DI-1601/55 L. 696, a similar industrial dispute 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. I of 1955.
While the 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 September 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, if any, those workmen are entitled ?" On
receipt of this notification, the tribunal passed an 1194 order on September
19, 1955, cancelling the hearing of the two prior references which had been
fixed for October 3, 1955, and directing that the files of the said references
should be closed.
The Bata Company and its workmen then filed
two separate applications before the High Court of Judicature at Patna under
articles 226 and 227 of the Constitution and prayed that the last notification
should be quashed as being illegal and ultra 'vires. These. two applications
were numbered as M. J. C. Nos. 546 and 590 of 1955 respectively.
On April 4, 1956, the High Court held that
the government of Bihar had no power or authority to supersede the earlier
notifications, allowed both the applications and issued a writ in the nature of
certiorai quashing the impugned notification of September 17, 1955, and also a
writ in the nature of mandamus requiring the industrial tribunal to proceed
expeditiously with reference-cases Nos. 10 of 1954 and I of 1955 and to -bring
them to a conclusion in accordance with law. Against this order the government
of Bihar applied for and obtained leave from this court on June 26, 1956. That
is how the two present appeals have come for disposal before US.
In both the appeals, the appellant is the
State of Bihar and. the respondents are the Bata Company and its workmen
respectively. On behalf of the appellant, it is urged before us that the High
Court at patna was in error in holding that the government of Bihar had no
power or authority to set aside the two earlier notifications and to refer the
dispute in question for adjudication to the industrial tribunal under s. 10(1)
of the Act.
In order to appreciate the background of the,
impugned notification, it would be relevant, to mention some material facts. It
appears that the workmen of the company's factory at Digha formed a, union at
the close of the last World War.
The president of the said union was Mr. John
and its general secretary was Mr. Fateh Narain Singh. -On June 22, 1947, the
company entered into a collective agreement with the said -union and by mutual
consent the Standing Orders and 1195 Rules, certified under the Industrial
Employment (Standing Orders) Act of 1946, were settled. The union was
recognised as the sole and exclusive collective bargaining agency for the
workmen of the company. Towards the end of 1954, two groups of the union were
formed and rivalry grew between them. One group was led by Mr. Fateh Narain
Singh and other by Mr. Bari. On January 22, 1954, the union' 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 opposed to the strike and in fact on February 16, 1954, a letter signed by
500 workmen who dis-associated themselves from the strike, was received by the
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 company'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 company. Thereafter the union
entered into negotiations with the company, as a result of which it was agreed
that 110 strikers would be employed by the company in the same manner in which
76 strikers had already been employed by it. It was further 152 1196 agreed
that 30 strikers were to remain dismissed and not considered eligible for
employment or for any benefits. In regard to the remaining 30 strikers, the
company agreed to consider their cases later on for reemployment. During these
negotiations, the sixty workmen in question did not make any demand to the
management for reinstatement either individually or collectively. nor was their
case raised by any other Organisation or body of workmen. In the result, so far
as the union was concerned the dispute regarding the whole body of strikers who
had been dismissed by the company came to an end by virtue of, the agreement
between the company and the union.
Notwithstanding this agreement, Mr. Sinha,
the conciliation officer, wrote to the company on September 3, 1954, that he
desired to hold conciliation proceedings inrespectof,some of the dismissed
workmen. The dispute raised 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 alleged dispute of sixty workmen being referred to adjudication. It was
under these circumstances that the appellant issued the first two notifications
on October 8, 1954 and January 15, 1955.
On May 30, 1955, the union made an
application before the tribunal alleging that the' majority of the workmen were
opposed to the reinstatement 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 other workmen to be joined to the proceedings on
the ground that they were opposed to the reinstatement of the workmen whose
cases were pending before the tribunal.
All these applications were rejected by the
It would appear that Mr. Fateh Narain Singh
then moved the Department of Labour Government of Bihar, and it was apparently
pursuant to the representation -made by him that the third notification was
issued by the appellant superseding the first two notifications and referring
the whole dispute afresh to the 1197 industrial tribunal with the union of Mr.
Fateh Narain Singh added as a party to the proceedings. That in brief is the
genesis of the impugned notification in the present case.
Dr Bannerjee for the appellant has urged
before us that in dealing with the question about the powers of the appropriate
government under s. 10(1) of the Act, it would be necessary to bear in mind the
facts which 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 form bringing before the tribunal all the
parties interested in it. In our opinion, the bona fides of the appellant on
which reliance is placed by Dr. Banerjee are really not: relevant for
determining the appellant's 'powers under s. 10(1) of the Act. If the appellant
has authority to cancel the notification issued 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 or revoke a
notification issued under s. 10(1), the bona fides of the appellant can hardly
validate the 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. Bannerjee that the Act
does not expressly confer any power on the appropriate government 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 reference must be hold to be implied,
and in support of his argument he relies on the, provisions of s. 21 of the
General Clauses Act, 1897 (X of 1897). Section 21 provides 1198 that "
where, by any Central Act or Regulation, a. power to issue notifications,
orders, rules or bye-laws is conferred, then that power includes a power,
exercisable in the like manner and subject to the like sanction and conditions
(if any), to add to, amend, vary or rescind any notifications, orders, rules or
byelaws so issued ". It is well settled that this section embodies a rule
of construction and the question whether or not it applies to the provisions of
a particular statute would depend on the subject-matter, context, and the
effect, of the relevant provision,% of the said statute. In other words it would
be necessary to examine carefully the scheme of the Act, its object and all its
relevant and material provisions before deciding whether by the application of
the rule of construction enunciated by s. 21, the appellant's contention is
justified that the power to cancel the reference made under s. 10(1) can be
said to vest in the appropriate government by necessary implication. If we come
to the conclusion that the context and -effect of the relevant provisions is
repugnant to the application of the said rule of construction, the appellant
would not be entitled to invoke the assistance of the said section. We must,
therefore, proceed to examine the relevant provisions of the Act itself.
It is clear that the policy of the Act is to
secure and preserve good relations between the employers and their workmen and
to maintain industrial peace and harmony. It is with this object that s. 3 of
the Act contemplates the establishment of the Works Committees whose duty it is
to promote measures for securing and preserving amity and good relations
between the employers and the workmen. If the Works Committee is unable to
settle the disputes &rising 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 contemplated by the Act. It is only where the
conciliation machinery fails to bring about settlement between the parties that
the Act contemplates compulsory adjudication of the industrial disputes by
labour courts and 1199 tribunals as the last alternative. The appropriate
government is authorised to constitute labour courts and tribunals under and
subject to the provisions of a. 7 and s. 7A respectively. It is in respect of
the compulsory adjudication that under s. 10, the appropriate government is
given wide discretion to decide whether or not the dispute between the employer
and his employees should fie referred to the board, court or' tribunal. Section
10 (1) (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 reference would be made under s. 10 (1); it is
only where 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 once
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 to have concluded on the day on which the award made by the tribunal
becomes enforceable under s. 17A. 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. 140(5) of the Act, which authorises it to add
other parties to the pending dispute subject to the conditions mentioned in the
It would therefore be reasonable to hold that
except for cases 1200 falling under s. 10(5) the appropriate government stands
outside the reference proceedings, which are under the control and jurisdiction
of the tribunal itself. Even after the award is made it is -obligatory on I the
appropriate government under S. 17(1) to publish the said award within a period
of thirty, -days from the date of its receipt by the, appropriate government.
'Sub-section (2) of s. 17 says that subject to the provisions of s. 17A, the
award published under (1) of s. 17 shall be final and shall not be called in question
by any court in any manner whatsoever Section 19(3) provides that an award
shall, subject to the other provisions of s. 19, remain in operation for a
period of one year from the date on which it becomes emforceable under s. 17A.
It is true that as. 17A and 19 confer on the appropriate government powers to
modify the provisions of the award or limit the period of its: operation but it
is unnecessary to refer to these provisions in detail. The scheme of theprovisions.
in Chapters III and IV of the Act would thus appear to be . to leave the
reference proceedings exclusively within the jurisdiction of the tribunals
-constituted under the :Act and to make the awards,of such tribunals binding
between the parties, subject to the special powers conferred of the appropriate
government under -as. 17A and 19. The appropriate government undoubtedly has
the initiative in the matter. It is only where it makes an order in writing
refering an industrial dispute to the adjudication of the tribunal that the reference
proceedings can commence but the scheme of the relevant provisions would prima
-facie seem to be inconsistent with any power in the appropriate government to
cancel the reference made under s. 10 (1).
The power claimed by the Happening to cancel
a reference made under. 10(1) seems also to be inconsistent with some other
provisions of the Act. The proviso to s. 10 lays down that the appropriated
government shall refer a dispute relating to the public utility service when a
notice under s. 22 has been given, unless it considers that the notice has been
frivolously or vexatiously given, or that it would be inexpedient so to refer
the dispute. This proviso, indicates that in regard 1201 to a dispute relating
to public utility concerns normally the government is expected to refer it for
adjudication. In such a case if' the government makes the reference it is
difficult to appreciate that it would be open to the government pending the
proceedings of the said reference before the Industrial Tribunal to cancel the
reference and supersede its original order in that behalf. Section 10, sub-s.
(2) deals with the case where' the parties to are industrial dispute apply to
the appropriate government in the prescribed manner, either jointly or
separately, for a reference of the dispute to 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 majority
of each party, and once this condition is satisfied, the government is under
obligation to refer the 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 arguments, Dr.
Banerjee fairly conceded that it would be difficult to sustain a claim for an
implied power of cancellation in respect 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 substance 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
opinion 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 appropriate
government is satisfied that there is a case for reference to a board, labour
court, tribunal or national tribunal, it may make such a reference. Where the
appropriate 1202 government does not make such a reference it shall record and
communicate to the parties concerned its reasons there for. This provision
imposes on the appropriate government an obligation to record its reasons for
not making a reference after receiving a report from the conciliation officer
and to communicate the said reasons to the parties concerned. It would show
that when the efforts of the conciliation officer fail to 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 is not satisfied that a reference should be made, it is required to
communicate its reasons for its decision to the parties concerned. If the
appellant's argument is accepted, it would mean that even after the order is
made by the appropriate government under s. 10(1), the said government can
cancel the said order without giving 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 appropriate
government the power to cancel an order made under s. 10(1), the legislature
would have made a specific provision in that behalf and would have prescribed
appropriate limitations on the exercise of the said power.
It is, however, urged that if a dispute
referred to the industrial tribunal under s. 10(1) is settled between the
parties, the only remedy for giving effect to such a compromise would be to
cancel the reference and to take the proceedings out of the jurisdiction of the
industrial tribunal. This argument is based on the ,assumption that the
industrial tribunal would have to ignore tile settlement by the parties of
their dispute pending before it and would have to make an award on the merits
in spite of the said settlement. We are not satisfied that this argument is
well-founded. It is true that the Act does not contain any provision
specifically authorising the industrial tribunal to record a compromise and
pass an award in its terms corresponding to the provisions of O. XXIII, r. 3 of
the Code of Civil Procedure. But it would be very 1203 unreasonable to assume
that the industrial tribunal would insist upon dealing with the dispute on the
merits even after it is informed that the dispute has been amicably settled
between the parties. We have already indicated that amicable settlements of
industrial disputes which generally lead to industrial peace and harmony are
the primary object of this Act. Settlements reached before the conciliation
officers or( 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) Act, 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 Act 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 settlement of the dispute reached by the parties pending proceedings
before the industrial tribunal.
In this connection it may be relevant to
refer to some other provisions of the Act, which impose restrictions on the
parties (luring the pendency of the reference proceedings.
Under s. 10(3), where an industrial dispute
has been referred to an industrial tribunal, the appropriate government may by
order prohibit the continuance of any strike or lock-out in connexion with such
dispute which may be in existence on the date of the reference. Similarly,
under s. 33, during the pendency of the proceedings before an industrial
tribunal, no employer shall (a) in regard to any matter connected with the
dispute, alter, to the prejudice 153 1204 of the workmen concerned in such
dispute, the conditions of service applicable to them immediately before the
commencement of such proceedings or (b) for any misconduct connected with the
dispute, discharge or punish, whether by dismissal or otherwise, any workmen
concerned in such dispute, save with the express permission in writing of the
authority before which the proceeding is pending. Failure to comply with the
provisions of s. 33(1) is made 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 and not to take any action which would disturb industrial peace or
prejudice a fair trial before the industrial tribunal. If the power to cancel a
reference made under s. 10 (1) 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 parties 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 compulsory
adjudication of industrial disputes under the Act, that s. 15 enjoins upon the
industrial tribunals to hold their proceedings expeditiously 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
industrial adjudications and so the Act imposes an obligation on the industrial
tribunals to deal with their proceedings as expeditiously as possible. If the
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
general 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 reaches the
conclusion that an 1205 industrial dispute exists or is apprehended and then makes
the reference under s. 10(1), there appears to be no reason or principle to
support the contention that it has an implied power to cancel its order and put
an end to the reference proceedings initiated by itself In dealing with this
question it is important to bear in mind that power to cancel its order made
under s. 10(1), which the appellant claims, is an absolute 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 strength of s. 21 of the General Clauses Act. We have no
hesitation in holding that the rule of construction enunciated by s. 21 of the General
Clauses Act in so far as it refers to the power of rescinding or cancelling the
original 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. Bannerjee 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 judgment
that from the relevant 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 tribunal 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 pending reference from one tribunal and refer it to another
tribunal, and, (1)  S.C.R. 465.
1206 according to the appellant that is
exactly what has been done by it in the present case. In the case of Minerva
Mills Ltd. (1), however, the question about the implied power of the
appropriate government to cancel its order made under s. 10 did not arise for
consideration. The point which was raised by the appellant was that the
government had no power to appoint a tribunal for a limited duration and the
argument was that if industrial disputes are referred to a tribunal, all the
said disputes must be determined by the said tribunal and not by any other
tribunal, notwithstanding that the appointment of the original tribunal was for
a limited duration. The first tribunal in the said case had been appointed on
June 15, 1952, and some industrial disputes had been referred to it.
The tribunal was appointed for one year.
During its tenure the tribunal disposed of some of the disputes referred to it,
but four disputes still remained undisposed of. For disposing of these
references, a second tribunal was appointed on June 27, 1952. The validity of
the constitution of the second tribunal was impugned by the appellant and it
was urged that it is the first tribunal alone which can and must try the
remaining disputes. This argument was rejected by this court, and it was held
that it was perfectly competent to the appropriate government to appoint a tribunal
for a limited duration. It would be noticed that in this case there was no
question of cancelling an order made under s. 10(1). The said order remained in
force, and the only step which the government took was to make an order
constituting a fresh tribunal to dispose of the references which had not been
adjudicated upon by the first tribunal. It was on these facts that this court
took the view that it was competent to the government to refer the said
remaining disputes for adjudication to the second tribunal. Strictly speaking
there was no occasion to withdraw any dispute from the first tribunal; the
first tribunal had ceased to exist; and so there was no tribunal which could
deal with the remaining disputes already referred under s. 10(1). That is why
the government purported to appoint a second tribunal to deal with the said
dispute. In our opinion, the decision in the Minerva Mills Ltd. (1) cannot be
(1)  S.C.R. 465.
1207 cited in support of the proposition that
the appellant has power to cancel the order of reference made by it under s. 10(1).
The decision of this court in Strawboard
Manufacturing Co. Ltd. v. Gutta Mill Workers' Union (1), is then cited in
support of the proposition that the appellant has implied power to cancel its
order made, under s. 10(1). In this case, the government of the 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, the 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
for 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. (as 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 should have cancelled the previous 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 court. 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 State
Government thought that the addition of new issues referred to the Commissioner
by subsequent notification made it difficult for him to submit his award (1)
 S.C.R. 439. 1208 within the specified time, the local government should
have cancelled the original reference, made a fresh comprehensive reference and
given him requisite time for making his award.
Since that was not done, the position could
not be rectified by the issue of the impugned notification retrospectively
extending the time originally fixed. It is in connexion with this argument that
the statement on which reliance is placed was apparently made by the learned
counsel for the appellant. If that be the true position, no argument can be
based on these observations. It is conceded that the question about the power
of the appropriate government to cancel an order of reference made under s.
10(1) did not arise for discussion or decision in this case.
The third decision to which reference has
been made in support of the appellant's case is the decision of Bishan Narain
J. in The Textile Workers' Union, Amritsar v. The State of Punjab and others
(1). Bishan Narain J. appears to have taken the view that the power to cancel
an order of reference made under s. 10(1) can be implied by invoking s. 21 of
the General Clauses Act, because he thought that by the exercise of such a
power, the appropriate government may be able to achieve the object of
preserving industrial peace and harmony. The judgment shows that the learned
judge was conscious of the fact that " this conclusion may have the effect
of weakening a trade union's power of negotiation and may encourage the
individual firms to deal directly with its (their) own workmen but it is a
matter of policy with which I have nothing to do in these proceedings." In
dealing with the present question, we would not be concerned with any questions
of policy. Nevertheless, it may be pertinent to state that on the conclusion
which we have reached in the present case there would be no scope for
entertaining the apprehensions mentioned by the learned judge. As we have
already indicated, the scheme of the Act plainly appears to be to leave the
conduct and final decision of the industrial dispute to the industrial tribunal
once an order of reference is made under s. 10(1) by the appropriate
government. We must accordingly hold that Bishan Narain J. was (1) A.I.R. 1957
1209 in error in taking the view that the
appropriate government has power to cancel its own order made under s. 10(1) of
The decision of the Kerala High Court in
Iyyappen Mills (Private) Ltd., Trichur v. State of Travancore-Cochin (1), is
not of much assistance because in this case the learned judges appear to have
taken the view that the first tribunal before which the industrial dispute was
pending had ceased to exist at the material time when the dispute was referred
by the local government for adjudication to the second tribunal. If that be the
true position, the conclusion of the learned judges would be supported by the
decision of this court in Minerva Mills Ltd. (2).
Then, in regard to the observations made by
Sinha J. in Harendranath Bose v. Second Industrial Tribunal (3), it is clear
that the learned judge was in error in seeking to support his view that the
appropriate government can cancel its order made under s. 10(1) by the
observations found in the judgment of this court in Strawboard Manufacturing
Co. Ltd. (4). We have already stated that the said observations are really a
part of the arguments urged by the appellant before this court in that case and
are not obiter observations made by the learned judge.
The last case to which reference must be made
is the decision of Rajamannar C. J. and Venkatarama Aiyar J. in South India
Estate Labour Relations Organisation v. The State of Madras (5). In this case
the Madras Government had purported to amend the reference made by it under s.
10 of the Act and the validity of this amendment was challenged before the
court. This objection was repelled oil the ground that it would be open to the
government to make an independent reference concerning any matter not covered
by the previous reference. That it, took the form of an amendment to the
existing reference and not an additional reference is a mere technicality which
does not merit any interference in the writ proceedings. The objection was one
of form and was without substance. It would thus appear that the question
before (1)  1 L.L.J. 50. (2)  S.C.R. 465. (3)  11 L.L.J. 198.
(4)  S.C.R. 439.
(5) A.I.R. 1955 Mad. 45.
1210 the court was whether the appropriate
government can amend the reference originally made under s. 10 so far as the
new matters not covered by the original reference are concerned, and the court
held that what the appropriate government could have achieved by making an
independent reference, it sought to do by amending the original reference
This decision would not assist the appellant
because in the present case we are not considering the power of the government
to amend, or add to, a reference made under s. 10(1).
Our present decision is confined to the
narrow question as to whether an order of reference made by the appropriate
government under s. 10(1) can be subsequently cancelled or superseded by it.
We must, therefore, confirm the finding made
by the learned judges of the High Court at Patna that the notification issued
by the appellant cancelling the first two notifications is invalid and ultra
That takes us to the question as to the form
in which the final order should be passed in the present appeals. The High
Court has purported to issue a writ of certiorari against the State Government
quashing the impugned notification. It has, however, been held by this court in
The State of Madras v. C. P. Sarathy (1) that in making a reference under s.
10(1) tile appropriate government is doing an administrative Act and the fact
that it has to form an opinion as to the factual existence of an industrial
dispute as a preliminary step to the discharge of its function does not make it
any the less administrative in character. That being so, we think it would be
more appropriate to issue a writ of mandamus against the appellant in respect
of the impugned notification. We would also like to add that since the first
two industrial disputes referred by the appellant under the first two
notifications have remained pending before the tribunal for a fairly long time,
it is desirable that the tribunal should take up these references on its file
and dispose of them as expeditiously as possible.
In the result, the appeals fail and must be
dismissed with costs.
(1)  S.C.R. 334.