G. Mehrotra, J.
1. This is an application under Article 226 of the Constitution praying for a writ of prohibition directing the opposite party No. 1, the Industrial Tribunal, Assam, Gauhati, not to proceed with the adjudication of the dispute referred to it by the Government of Assam under the Notification dated 31-5-1957 and the corrigendum thereto being No. GIR. 361/55/11/72. The validity of the above notification issued by the Government of Assam under Section 10(1) of the Industrial Disputes Act, has been assailed.
In the year 1952 the petitioner who is the owner of Rosekandy Tea Estate in Cachar closed down its gardens and terminated the services of its employees. On 24-2-1956 the Government of Assam by its Notification No. GIR. 361/55 (hereinafter referred to as the first reference) referred for adjudication to Sri R. Hazarika, Member of the Industrial Tribunal, Assam, the industrial dispute which is alleged to have arisen between the management including the gardens own-eel by the petitioner and a number of other gardens mentioned in the first column of the Second Schedule attached to the notification as the first part of the Assam Chah Karmachari Sangha of the second part. The issues which were referred to the Industrial Tribunal for adjudication under the aforesaid notification are as follows:
1(a) Whether the managements of the tea estates mentioned in Appendix 'A' were justified in retrenching certain of their workers during 1952 and 1953? (b) If not, are the workers entitled to reinstatement or any other relief or both?
2. (a) Whether the managements of the tea estates mentioned in Appendix 'B' were justified in their action of reducing the number, of the working, days in a week during 1952 and 1953 and also for laying, off the workmen for certain periods during. 1952 and 1953?
(b) If not, are the workers entitled to any compensation for the period they were laid off both on account of introduction of shorter weeks and temporary closure of the estates concerned?
2. It appears that on 27-2-1957 the Government of Assam also constituted an Industrial Tribunal with Shri Ram Labhaya as its Presiding Officer under Section 7 of the Industrial Disputes Act as was in force prior to 10-3-1957. After the 10th March under Section 7A of the Amended Industrial Disputes Act the Government of Assam constituted the Industrial Tribunal with Shri Ram Labhaya as its Presiding Officer. On 31-5-1957 the Government of Assam by another notification, hereinafter referred to as the second notification, referred the present industrial dispute between the petitioner and the Cachar Chah Sramik Union to Sri Ram Labhaya, Presiding Officer of the Industrial Tribunal constituted under Section 7A of the Industrial Disputes Act.
It may be pointed out here that in the first notification the dispute between the workers and 123 gardens was referred to Sri R. Hazarika by one notification. Shortly after the publication of the notification, the Shillong Adviser of the Indian Tea Association wrote to the Labour Secretary to the Government of Assam that a consolidated reference would cause great injustice to the companies and their disputes were separate and requested the Government to direct the Tribunal to suspend the hearing and to split up consolidated references. Similar representation was also made on behalf of the Union.
The Tribunal was informed by the State Government of this move and stayed its hands and did nothing in the adjudication. Sri R. Hazarika, was originally appointed as a member of the Tribunal for two months. His term was however finally extended up to 10-3-1957. The Industrial Disputes Act was amended in the year 1956. Some of the provisions of the Act were given immediate effect and other provisions were to come into force with effect from 10-3-1957. Section 7A of the amended Act requires that the Presiding Officer of the Industrial Tribunal should be and must have been a Judge of the High Court, Chairman of the Labour Appellate Tribunal or of any Tribunal for not less than two years. Sri Hazarika was thus not qualified to be the Presiding Officer of the Industrial Tribunal under Section 7A of the Act.
The office of Sri Hazarika having come to an end by efflux of time when the disputes of the workers of 123 gardens were pending, on 11-3-1957 Sri Ramlabhaya was appointed as the Presiding Officer of the Industrial Tribunal and the notification of 31-3-1957 was issued, by which the disputes between the various gardens and the workers which was the subject-matter of the first reference was split up into separate references and one of the references related to the dispute between the present applicant and the opposite party No. 4-a Trade Union registered under the Indian Trade Union Act. It should at this stage be pointed out that the separate references including the reference No. 2 were made in May, 1957. Enquiry started in the month of July, 1957 and continued till 10-1-1959 when the case was fixed for argument. On the Hate of argument a question about the validity of the notification was raised as a preliminary point and it was urged that the arguments on merits be postponed. It appears that the Presiding Officer of the Industrial Tribunal indicated that he would hear the arguments and deal with the petition thereafter.
The present petition was thus filed in this Court on 11-2-1959 and the proceedings before the Tribunal in the second reference as well as in other references, hearing of which had been consolidated by the Tribunal, were stayed. The dispute which was referred for adjudication to the Tribunal under the notification of 31-5-1957 is as follows:
(a) whether the management of Rosekandy Tea Estate and Boro Jalinga Tea Estate, are justified in reducing the number of working days in a week during 1952-53 and also for laying-off the workmen for certain periods during 1952 and 1953?
(b) If not, are the workers entitled to any compensation for the period they were laid off both on account of introduction of shorter weeks and temporary closure of the estate concerned.
3. By another corrigendum the following issues were directed to be added to the notification of 31-5-1957: 'If justified, to what relief are the workers entitled?' as issue Nos. 1 (c) and 2(c) as the case may be.
4. The main contention of the learned counsel for the applicant is that the State Government had no jurisdiction to cancel its earlier notification of 24-2-1956 by a subsequent notification, and consequently the Industrial Tribunal had no jurisdiction to proceed with the adjudication of the industrial dispute referred to it under the second notification. It is contended that the industrial dispute referred to under the first notification was pending and under Section 10 of the Industrial Disputes Act, the Government had no power to cancel its earlier notification.
It should be pointed out that in the second notification of 31-5-1957, it is stated that this notification cancels the department notification No. GLR 361/55 dated 24-2-1956. The power of cancellation cannot be exercised by the State Govt., under Section 10 of the Industrial Disputes Act. Reliance is placed for this contention on the case of State of Bihar v. D. N. Ganguly, AIR 1958 SC 1018. Before examining the facts of the case relied upon by the learned counsel for the applicant, it is necessary to refer to some of the provisions of the Act, Section 7A of the Act reads as follows;
'7-A. Tribunals.--(1) The appropriate Government may, by notification in the Official Gazette constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule.
(2) A Tribunal shall consist of one person only to be appointed by the appropriate Government.
(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless-
(a) he is or has been a Judge of a High Court; or
(b) he has held the office of the Chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950) or of any Tribunal, for a period of not less than two years.
(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it'.
This section was introduced by the amending Act 36 of 1956. The old Section 7 under which Sri Hazarika was appointed the Presiding Officer of the Industrial Tribunal, reads as follows:
'7. Industrial Tribunals.--(1) The appropriate Government may constitute one or more industrial tribunals for the adjudication of 'Industrial Disputes' in accordance with the provisions of this Act.
(2) A Tribunal shall consist of such number of independent members as the appropriate Government may think fit to appoint, and where the Tribunal consists of two or more members, one of them shall be appointed as the Chairman thereof.
(3) Where a Tribunal consists of one member only, that member, and where it consists of two of more members the Chairman of the Tribunal, shall be a person who-
(a) is or has been a Judge of a High Court; of
(b) is or has been a District Judge; or
(c) is qualified for appointment as a Judge of a High Court:
Provided that no appointment tinder this sub-section to a Tribunal shall be made of any person not qualified under Clause (a) or Clause (b) except with the approval of the High Court of the State in which the Tribunal has, or is intended to have, its usual seat.
(4) Where a Tribunal consists of two or, more members every such member, (other than the Chairman) shall possess such qualifications as may be prescribed, and where an industrial dispute affecting any banking or insurance company is referred to a Tribunal, one of such members may be a person who, in the opinion of the appropriate Government, has special knowledge of banking or insurance as the case may be.
(5) A Tribunal, where it consists of two or more members, may act notwithstanding the casual of unforeseen absence of the Chairman or any either members, and when the Chairman or any other member rejoins his office after such absence the proceeding may be continued before the Tribunal from the stage at which he so rejoins'.
5. Section 10 of the Industrial Disputes Act is as follows:
'10. Reference of disputes to Boards, Courts of Tribunals.--(1) Where the appropriate Government is of opinion that any industrial dispute exists of is apprehended, it may at any time, by order in writing,--
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication: ****.'
6. Section 33B which gives power to transfer certain proceedings was added by amending Act 36 of 1956 is as follows:
'33B. Power to transfer certain proceedings-
(1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal, or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred:
Provided that where a proceeding under Section 33, or Section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court.
(2) Without prejudice to the provisions of Sub-section (1), any Tribunal or National Tribunal, if so authorised by the appropriate Government, may transfer any proceeding under Section 33 or Section 33A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same'.
7. Section 33B has been referred to as it was also contended by the counsel for the applicant that even though the term of office of Sri Hazarika has come to an end by efflux of time, still the dispute was pending and that very dispute could be transferred to Sri Ham Labhaya under Section 33B, but it was not open to the State Government to cancel the earlier notification and to split up the first reference into various references and refer them separately to the new Tribunal under fresh notifications.
The facts of the case of AIR 1958 SC 1018 referred to above, briefly were that on the 8th of October, 1954, the Government of Bihar referred an industrial dispute between the management of the Bata Shoe Co. Ltd., Digmaghat (Patna) and their 31 workmen under Section 10(1) of the Industrial Disputes Act. The main dispute was whether the dismissal of the workmen in question was justified and if not whether they were entitled to reinstatement or any other relief. The Industrial Tribunal consisting of Mr. Ali Hussain, the sole member, was constituted fur that purpose.
On 15-1-1955 by another notification a similar industrial dispute between the same Bata Shoe Company and its other 29 workmen was referred to the same Tribunal. While the proceedings in regard to the two references were pending before the Tribunal and had been consolidated, the Government of Bihar issued a third notification on 17-9-1955, by which it purported to supersede the two earlier notifications but combined 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 Hussain as the sole member.
On receipt of the third reference the Tribunal cancelled the hearing of the two earlier notifications. Applications were filed before the High Court of Patna under Article 226 of the Constitution by the Bata Company and its workmen for quashing of the third notification. The High Court held that the Government of Bihar had no authority to supersede the earlier notifications and issued a writ of certiorari quashing the third notification and a further writ of mandamus directing the Tribunal to proceed expeditiously with the two earlier references. Against the order of the High Court an appeal was preferred to the Supreme Court.
The main point raised in appeal before the Supreme Court was that the High Court was not right in holding that the Government of Bihar had no power or authority to recall its two earlier notifications and to refer the same dispute for adjudication to the Industrial Tribunal under Section 10(1) of the Act. It was held by the Supreme Court that the Act gave no express power to the appropriate Government to cancel or supersede a reference made under Section 10(1) of the Act, nor can such power be claimed by implication on the strength of Section 21 of the General Clauses Act.
The Supreme Court further held that the appropriate Government having no authority to cancel or revoke a notification issued under Section 10(1) the bona fides of the Government can hardly validate the impugned cancellation. Particular reference was made to the following observation at page 1024:
'The discretion given to the appropriate Government under Section 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 Section 21 of the General Clauses Act. We have no hesitation in holding that the rule of construction enunciated by Section 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 provision of Section 10(1) of the Industrial Disputes Act'.
8. The Supreme Court, however, confined its decision in that case to the narrow question as to whether an order or reference made by the appropriate Government under Section 10(1) of the Act can be subsequently cancelled or superseded by it. In the present case the Tribunal before which the earlier references were pending, had come to an end and the dispute had to be referred afresh to the Tribunal which had been constituted under the amended Industrial Disputes Act.
In the ease before the Supreme Court the Tribunal before which the first two references were pending was in existence and it proceeded with the matter to some extent. In these circumstances, it was rightly contended that when a third reference was made in respect of the same dispute, it amounted to a cancellation of the earlier notifications, the power which is not possessed by the appropriate Government under the provisions of Section 10(1) of the Industrial Disputes Act.
In the present case the Tribunal presided over by Sri R. Hazarika, before whom the first reference was pending, ceased to exist by efflux of time, its term expired and a fresh tribunal presided over by Sri Ram Labhaya was created under Section 7A of the Industrial Disputes Act. In these circumstances it cannot be said that the appropriate Government by issuing fresh notifications referring disputes similar in nature to the new tribunal, in effect cancelled its earlier notifications.
The earlier reference in effect lapsed on account of the non-existence of the earlier tribunal and no question of cancellation could arise. The dispute no doubt between the employers and the workmen was still subsisting. The appropriate Government, therefore, had power under Section 10 to make a reference in respect of the said dispute to the industrial tribunal. As I have already pointed out from the judgment of the Supreme Court, the decision in that case was confined to the narrow question of the appropriate Government's power under Section 10 of the Act to cancel or supersede its earlier references and not to the power of the Government to issue fresh notification referring an industrial dispute to a new Tribunal which was the subject-matter of earlier reference to a Tribunal which had ceased to exist. In this connection it will be necessary to refer to the earlier decision of the Supreme Court in Minerva Mills Ltd., Bangalore v. Workers of the Minerva Mills, AIR 1953 SC 505, which will hereinafter be referred to as 'Minerva Mills case'. AIR 1953 SC 505. In the Minerva Mills case, AIR 1953 SC 505 the Government of Mysore by a notification dated the 15th June, 1951 constituted an Industrial Tribunal for a period of one year consisting of a Chairman and two members for adjudication of industrial disputes in accordance with the provisions of the Act.
Some disputes were referred to the Tribunal under Section 10(1)(c) of the Act. The references were made till 15th June, 1952 when the period of one year expired, and the Tribunal had only disposed of five out of twenty-two disputes referred to it. In some disputes the Tribunal had only framed issues and had not proceeded to record evidence. By a notification on the 27th June, 1952 the appropriate Government constituted another tribunal for adjudication of some of the disputes which were pending before the erstwhile tribunal under Section 10(1) (c) of the Act.
An objection was raised as to the validity of the reference to the new tribunal. A number of points were urged before the Supreme Court in that case. The main contention, however, was that there was no power under the Industrial Disputes Act in the appropriate Government to appoint a tribunal for a limited duration. The only power given to the appropriate Government was to constitute another tribunal only when the references made to the earlier tribunal have been disposed of by it. It was implicit in the provisions of the Act that the Tribunal once appointed can only cease to function after the references made to it have been exhausted.
It was however also contended that the Government had no power under Section 10 of the Act to withdraw a reference from one tribunal and to hand it over to another tribunal. All these contentions were repelled by the Supreme Court and it was held that under Section 7 of the Industrial Disputes Act the appropriate Government had ample power of constituting a tribunal for a limited time, intending thereby that its life would automatically come to an end on the expiry of that time.
When the tribunal constituted for a limited period automatically comes to an end after the expiry of the period, the appropriate Government can constitute another tribunal and refer to it the disputes which were pending before the first tribunal and had remained undisposed. Dealing with this case in the case referred to above, their Lordships of the Supreme Court observed that in the Minerva Mills case, AIR 1953 SC 505 the question about the implied power of the appropriate Government to cancel its order made under Section 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 that if industrial disputes are referred to a tribunal once, all the said disputes must be determined by the said tribunal and not by any other tribunal. This argument was rejected by the Supreme 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 Section 10(1).
The said order remained in force, and the only steps which the Government took was to make an order constituting a fresh tribunal to dispose of the references which has 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 horn 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 Section 10(1).
That is why the Government purported to appoint a second tribunal to deal with the said dispute. The Minerva Mills case, AIR 1953 SC 505, therefore, has been distinguished on the ground that in that case there was no question of cancellation of an earlier notification and withdrawing any dispute from one tribunal and transferring it to the other as the earlier tribunal had ceased to exist. The ratio of the decision in the Minerva Mills case, AIR 3.953 SC 505 to our mind applies mutatis mutandis to the facts of the present case and the case of AIR 1958 SC 1018 is distinguishable.
Mr. Chaudhury who appears for the petitioner has very strenuously contended that the decision in the Minerve Mills case does not apply to the present case. He has sought to distinguish it on the ground that the dispute which was referred to the second tribunal in Minerva Mills case was bodily the same as was referred to the earlier tribunal which had ceased to exist. In the present case he has argued that the parties have been changed in the present reference. The earlier reference was one as between all the gardens and their workmen and in the present instance the reference has been split into a number of references.
He has further pointed out that one or two issues have also been added to the dispute referred under the earlier notification. We do not think that that is a sufficient justification for not applying the principles laid down in the Minerva Mills case, AIR 1953 SC 505 to the facts of the present case. Reading the two cases--the Minerva Mills case AIR 3953 SC 505 and the case of AIR 1958 SC 1018 (ibid)--it will appear that it will have to be seen from the facts of each case whether the second notification in effect amounts to cancellation of the earlier notification or it amounts to a fresh reference due to the exigencies of the situation arising out of the non-existence of the earlier tribunal.
It is no doubt true that the notification is not very happily worded and the notification mentions that the department's notification dated 24th February, 1956 had been superseded. But as has been pointed out by the Supreme Court in dealing with the Minerva Mills case AIR 1953 SC 505 in AIR 1958 SC 1018, truly speaking it was not a case of transfer of proceedings from one tribunal to the other. If the first tribunal ceased to exist by the expiry of its term, there was no tribunal which could deal with that reference any more and the dispute had to be referred to a fresh tribunal. At that stage if the dispute though substantially the same, has been referred not by one reference but under several references, it could not be said that the State Government has purported to exercise any power of cancelling or superseding its earlier reference.
9. Reference was made on behalf of the Slate to the ease of Iyyappen Mills (Private) Ltd., Trichur v. State of Travancore-Cochin, 1958-1 Lab LJ 50 (Kerala), where it was held that the appropriate Government has got power to withdraw the dispute to one tribunal and refer it to another tribunal even where the services of the members of the first tribunal were available. This decision was considered by the Supreme Court in AIR 1958 SC 1018 and if was observed that 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 the Minerva Mills case, AIR 1953 SC 505. Reliance was also placed by the learned counsel for the State on the case of S.I.E.L.R. Organisation v. Madras State reported in AIR 1955 Mad 45. In the Madras case the Madras Government by its notification on 25-6-52 purported to amend its earlier notification of the 24th March, 1952, and it was contended that the Government had no such jurisdiction. The Madras High Court held that the objection was one of form and was without substance.
It would have been open to the Government to make under Section 10 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. This case was also considered by the Supreme Court in AIR 1958 SC 1018 and was distinguished on the ground that it was observed that the question before the Madras High Court was not with regard to the power of the Government to supersede its earlier notification, but was one by which some additional matters were introduced by way of amendment of the earlier notification.
On a careful reading of all these cases it is clear that in the present case so far as the dispute which had already been referred by the earlier notification was concerned, it could have been referred to the Presiding Officer of the new Industrial Tribunal, as the earlier Tribunal had ceased to function. As regards the matter which was not referred earlier it was always open to the State Government to refer the additional matters by means of a fresh notification under Section 10 to another Tribunal.
The decision in the Minerva Mills case AIR 1953 SC 505 in our opinion applies to the facts of the present case & AIR 1958 SC 1018 does not apply to the facts of the present case. As to the argument that under Section 33B the dispute pending before Sri R. N. Hazarika, could have been transferred to Sri Ram Labhaya we do not think that in terms Section 33B would apply. This section gives power to the appropriate Government to withdraw any proceeding pending before a Tribunal and transfer to another Tribunal for disposal.
This power can only be exercised in respect of the proceedings which are pending before a Tribunal. Cases where the Tribunal has ceased to exist before which the original reference was made, stand on a different footing and it will not be a case of transfer from one tribunal to the other. This interpretation is also borne out by the following observation of the Supreme Court in AIR 1958 SC 1018:
'Strictly speaking there was no occasion to withdraw any dispute from the first tribunal; the first tribunal had ceased to exist; so there was no tribunal which could deal with the remaining disputes already referred under Section 10(1).'
10. We are, therefore, of opinion that there is no force in the contentions raised by the counsel for the petitioner. A number of preliminary points were raised by the counsel for the opposite party. It was urged that the petition should be thrown out on the ground that the petitioner had no right to apply on behalf of the other gardens, each dispute, when, as mentioned above, had been referred separately to the Tribunal. It was also contended (hat the petitioner obtained a stay of the hearing of all the other references on a misrepresentation of facts and as such, the petition should be rejected.
It was further contended that the earlier reference which was one, was split up at the instance of some of the representatives of the Indian Tea Association at Shillong and consequently it is not open to the petitioner and other gardens to raise this point. Lastly it was also urged that the petitioner is not entitled to any writ of prohibition as he came to this Court when the case was over and the arguments had been heard.
They submitted to the jurisdiction of the Tribunal and allowed the proceedings to continue till the stage of argument was reached. In these circumstances the petitioner is not entitled to any relief. As we have rejected the contentions of the petitioner on merits, it is not necessary to enter into these preliminary objections.
11. The result is that we dismiss the petition with costs which we assess at Rs. 300/- and discharge the rule.
H. Deka, J.
12. I agree.