(1) This judgment will also dispose of one of the common points arising in this petition and in Special Civil Application No. 704 of 1964, which was heard along with the main petition at the request of the parties, and which is regarding interpretation of S. 37 and S. 38-A of the C. P. and Berar Industrial Disputes Settlement Act, 1947.
(2) The petitioners in Special Civil Application No. 684 of 1964 are the elected representatives of the Assessment Inspectors employed in the Assessment Department of the City of Nagpur Corporation. They were so elected at a meeting held by the Labour Officer of the Government on 28-7-1962. After their election as such on 4th of August 1962, the petitioners gave a notice of change under S. 32 of the C. P. and Berar Industrial Disputes Settlement Act, 1947, demanding (1) that the Assessment Inspectors working in the Corporation should also be paid a motor-cycle allowance of Rs. 40 as was paid to other inspectors, and (2) that their pay-scales should be revised with effect from 1st March 1960.
(3) It does not appear that even an attempt was made to hold negotiations in respect of this demand. We are surprised that in spite of the provisions of s. 32 (20, which cast on obligation on an employer to hold negotiations with the representatives of the employees concerned in respect of the demands, no attempt should have been made on behalf of respondent No. 2 to hold such negotiations. As no negotiations were at all held, it follows that there was no agreement between the parties with regard to the demands made in the notice. As the petitioners still desired a change to be effected, they forwarded a statement of the case in the prescribed form to the office of the Deputy Commissioner of Labour at Nagpur, and a copy of the same was sent to the Labour Commissioner at Bombay. The petitioners have further alleged that their statement of the case and notice in form O were scrutinized in the office of the Deputy Commissioner of Labour at Nagpur. It was pointed out to them, as a result of the scrutiny, that demand for revision of pay-scales could not be adjudicated or considered for conciliation because there was already an award by which the pay-scales of the Assessment Inspectors were fixed in 1957. This award is called the Majumdar Award and will be referred to as such whenever necessary.
(4) The petitioner were called upon to correct the notice and the statement of the case for conciliation, and the necessary corrections were made by making change in respect of pay-scales on 11-10-1962. According to the proactive so far prevalent, the Deputy Commissioner of Labour thereafter sent the notice in form O with the statement of the case to the Labour Commissioner whose office is at Bombay. Notice was despatched to that officer on 24-10-1962.
(5) The Labour Commissioner appointed one Mr. Badiuddin as a Conciliator on 10th November 1962. The Conciliator commenced proceedings by issuing notices to the parties to appear before him. By the first notice the parties were directed to appear on 16-11-1962, but in the meanwhile a fresh date was fixed to appear on 22-11-1962 by a notice sent on 13-11-1962. On 22-11-1962 the Conciliator was absent and by mutual consent the time was further extended between the parties. The conciliation proceedings went on before the Conciliator till 11th January 1963, on which date, it appears, conciliation was not possible and the conciliation was closed.
(6) Thereafter the Conciliator submitted his report to the State Government on 14th February 1963. The petitioners filed a Reference Application under S. 38-A (1) of the Act on 13th March 1963 before the State Industrial Court at Nagpur. The order which is impugned in this petitioner was passed by the State Industrial Court in this reference which was registered as Industrial Reference No. 13 of 1963.
(7) At this stage, we may also state the facts in Special Civil Application No. 704 of 1964. The petitioners in this petition are also the elected representatives of the employees who are members of what is called Vidarbha Cinema Kamgar Union. They were elected at a meeting held on 20th October 1961, and they gave a notice of change to their employer viz., respondent No. 2, Vasant Talkies of Sitabudi, Nagpur, on 11-12-1961 under S. 32 (1) of the C. P. and Berar Industrial Disputes Settlement Act. Here again there was no agreement and as the petitioners still desired a change, they forwarded a notice in form O with a statement of the case on 29-1-1962 to the Deputy Commissioner of Labour at Nagpur. That officer forwarded the statement to the Labour Commissioner at Bombay on 2nd February 1962. The Labour Commissioner appointed a Conciliator on 12th February 1962/ the proceedings before the Conciliator seem to have commenced on 20th February 1962 and came to a close without any agreement having been arrived at on 30th April 1962. Thereafter the conciliator made a report to the Government on 18-5-1962 and the petitioners filed a Reference Application under S. 38-A (1) of the C. P. and Berar Industrial Disputes Settlement Act on 10th August 1962 before the State Industrial Court. That reference has been registered as Industrial Reference No. 16 of 1962 and was rejected by the State Industrial Court by its order dated 29-6-1964, out of which Special Civil Application No. 704 of 1964 arises. The ground on which this reference application was rejected was one of limitation and it is the point of limitation which is common to both these petitions.
(8) In Special Civil Application No. 684 of 1964, besides objection as to limitation, the contesting respondent, namely, the City of Nagpur Corporation, raised two other objections. Their case is that the notice of change itself was not tenable because there is subsisting between the parties an award under which the terms of employment and conditions of employment have been fixed by the award, i.e., the Mujumdar Award. Under the Mujumdar Award the petitioners are allowed a vehicle allowance called a cycle allowance, and without termination of that award, the petitioners cannot ask for a change and commence proceedings for conciliation or for arbitration. On merits their contention is that the Assessment Inspectors are required to do duties which do not involve travelling over long distances, that a majority of them are required to do work within a limited and compact area not involving much journey, and therefore, the nature of duty which is prescribed for Assessment Inspectors is quite different from other Inspectors who are held eligible to draw a motor-cycle allowance. The cycle allowance which is being paid to the Assessment Inspectors is thus an adequate compensation for the travelling they have to do in discharge of their duties.
(9) The State Industrial Court in Industrial Reference No. 13 of 1963 filed at the instance of the Assessment Inspectors has held (a) that the Reference application is barred by time, (b) that they have no cause of action as the matter is covered by the Mujumdar Award, and (c) that even otherwise, they cannot be held entitled to a motor-cycle allowance considering the nature of duties they have to perform. As already mentioned, the only point on which the Industrial Reference No. 16 of 1962 was rejected is that that application is barred by limitation, not having been filed within three months of the closure of the Conciliation proceedings.
(10) We will first take the question of limitation and the provisions of the law arising therefrom in both these cases. Section 37 of the C. P. and Berar Industrial Disputes Settlement Act in its various sub-sections prescribes the procedure by which a proceeding for conciliation can be commenced and completed. That section is as follows;
'37 (1) If no agreement is arrived at within fourteen days of the giving of the notice the party which gave the notice shall, if it still desires that the change should be effected, forward to the Labour Commissioner a full statement of the case and thereupon an industrial dispute shall be deemed to have occurred and conciliation proceedings to have commenced from the date of receipt of such statement by the Labour Commissioner.
(2) Conciliation proceedings in respect of the industrial dispute shall then be held by the Chief Conciliator or by a Conciliator or by a Board of Conciliation appointed for the purpose, as may be directed by the Chief Conciliator.
(3) It shall be the duty of the conciliators or the Board, as the case may be, to endeavour to bring about a settlement of the industrial dispute and for this purpose the conciliator or the Board shall enquire into the dispute and all matters affecting the merits thereof and may do all such things as he or it thinks fit for the purpose of inducing the parties to compute and may, subject to the provisions of sub-section (7), adjourn the proceedings for any period sufficient in his or its opinion to allow the parties to arrive at a settlement.
(4) If a settlement of an industrial dispute is arrived at in a conciliation proceedings, a memorandum of such settlement shall be drawn up and signed by the employer and the representative of employees; and the Conciliator or the Borad, as the case may be, shall send a report of the proceeding along with a copy of the memorandum of settlement to the Labour Commissioner and Registrar.
(5) The Registrar shall record such settlement in the register of agreements and shall then publish it in such manner as may be prescribed, and the change, if any, effected by such settlement shall come into force from the date agreed upon in such settlement or where no such date is agreed upon from the date on which it is recorded in the register.
Provided that where a Chief Conciliator has held the conciliation proceedings, the report and the memorandum of settlement shall be forwarded by him to the State Government.
(6) If no settlement is arrives at, the Conciliator, or the Board, as the case may be, shall as soon as possible, after the close of the conciliation proceedings, send a report of the conciliation proceeding together with his or its findings and recommendations to the State Government.
(7) A conciliation proceeding shall be completed within a period of four weeks:
Provided that the parties to the dispute may, be mutual agreement, extended the time limit by such period as may be agreed upon between them
Provided further that if there is no such agreement the State Government may extend the aforesaid period by a further period of two weeks at a time, not exceeding in any case four weeks in the aggregate.
(8) The conciliation proceeding shall be deemed to have been completed when a settlement arrived at in such proceeding is registered or if no such settlement is arrived at when the report referred to in sub-section (6) is submitted to the State government or when the time limit fixed for the completion of such proceeding under sub-section (7) has expired.
(9) No change shall be made in respect of an industrial matter settled under sub-section (40 within six months of the completion of the conciliation proceeding, unless the parties agree to the making of a change.
(10) No change shall be made in respect of an industrial matter regarding which no settlement is arrived at until the State Industrial Court by a decision given in pursuance of an application under section 38-A sanctions the change.'
(11) If the conciliation proceedings do not yield or result in a settlement, then under section 38-A by its sub-section (1) either party to the proceeding may within three months of 'the completion thereof' refer the industrial dispute for arbitration to the State Industrial Court. Under sub-section (2) of section 38-A, an express power is given to the State Government, without prejudice to the other provisions of sub-section (1) of section 38-A, in case there is failure to arrive at a settlement between the parties in conciliation proceedings held by a Board of Conciliation, to refer the industrial dispute for arbitration to the State Industrial Court but again within three months of the completion of the proceedings.
(12) Though a question of limitation of time within which an application for reference can be made has been raised in both these petitions before us, each petition deals with a separate aspect of that question. In Special Civil Application no. 684 of 1964, arising out of Industrial Reference No. 13 of 1963, the State Industrial Court has held that the Labour Commissioner must be taken to have received the notice in form O with statement of the case under section 37 (1) of the C. P. and Berar Industrial Disputes Settlement Act, 1947, soon after a copy of such a notice and statement was sent by the petitioners to the Labour Commissioner on 19th September 1962. this notice, which is styled by the petitioners as a copy, was alleged to have been sent by registered post on 19-9-1962. The State Industrial Court has therefore assumed that it could safely be taken that it was delivered to the Labour Commissioner in Bombay on or about 21st September 1962. After referring to a decision of an Industrial Bench of that Court in which this question seems to have been considered, the State Industrial Court observed that the conciliation would be deemed to have commenced on 21st September 1962. the period of four weeks under S. 37 (7) will last till 19th October 1962, and conciliation ought to have been completed before 19th October 1962, unless the period is shown to have been extended by mutual consent. On this basis the reference application ought to have been filed within three months from 19-10-62 and it having been filed on 13-3-1963, it was held not to be within time.
(13) The State Industrial Court then considered another contention of the petitioners that the original notice in form O with the statement of the case was corrected on 11-10-1962 by the Deputy Commissioner of Labour and it was not forwarded to the Labour Commissioner at any rate till 11-10-1962. The State Industrial court observed that no evidence was led to show as to when it was forwarded and received by the Labour Commissioner. The State Industrial Court therefore assumed that if it is taken to have been forwarded on the same date i.e. on 11-10-1962, it would be reasonable to hold that it was received in Bombay on 13-10-1962, and four weeks time from 13-10-1962 would expire on 11-11-1962; but before that date a Conciliator was appointed on 10-1101962. Even though the State Industrial Court held that there was no extention of time by mutual agreement between the parties after 10-11-1962, and therefore the time fixed by section 37 (7) would expire on 11-11-1962 and the Reference Application filed on 13-3-1963 would also be beyond time even on this recknoing, at this stage we may consider the manner in which the request made by the petitioners before the State Industrial Court for an opportunity to show that infact the Labour Commissioner had received the original form O and the statement of the case sent by the Deputy Commissioner of Labour from Nagpur on 24-10-1962 was dealt with. It appears from the order itself that the petitioners wanted to show from the records of the conciliation proceedings which were requisitioned and were before the State Industrial Court that the Deputy Commissioner of Labour forwarded the notice inform O and the statement of the case on 24th October 1962 and the earliest it could have reached the Labour Commissioner was about 25th October 1962, but the learned member of the State Industrial court rejected this request on behalf of the petitioners on the ground that before the petitioners closed their case they were given every opportunity to have whatever material they wanted from the conciliation proceedings that they did not make any attempt before the closure of their case to show when the original form O was forwarded, and therefore he declined to allow them to refer to the record of conciliation proceedings to satisfy himself as to when the form in fact left the office of the Deputy Commissioner at Nagpur and reached the Labour Commissioner at Bombay.
(14) We are not satisfied that the State Industrial Court has exercised its discretion in this procedural matter on judicial considerations. It is obvious that the record of the proceedings before the Conciliator was sent for and was in Court during the pendency of the Reference proceedings before the State Industrial Court. We fail to see what objection there was in the State Industrial Court satisfying itself as to when in fact the Deputy Commissioner of Labour sent the original notice in form O along with the statement of the case and to find out when it was received by the Labour Commissioner at Bombay. If these facts can be ascertained by mere reference to the record of the conciliation proceedings, the omission of the State Industrial Court to do this is wholly unjustified, and in our opinion, the proceedings, which are in the nature of industrial arbitration before the State Industrial Court under section 38-A cannot be allowed to be hampered or hedged in by such procedural technicalities which do not govern proceedings before the authority charged with industrial arbitration. There is no prohibition in the Industrial Court referring to these proceedings, and if any technical requirement of procedural law is required to be satisfied, the Industrial Court could have asked the petitioners to take a copy and fills it if at all that was necessary. But without giving such an opportunity in our opinion, the Industrial Court has denied itself access to a material obtained on record which would have shown that the original notice with a statement of he case were in fact sent by the Deputy commissioner of Labour to the Labour Commissioner at Bombay on 24-10-1962 and must have reached that office sometime after 24-10-1962. We have also sent for the records of the conciliation proceedings and we are satisfied that in fact the Deputy Commissioner of Labour sent from Nagpur the notice in form O and statement of the case on 24-10-1962 and the same records were available also before the State Industrial Court.
(15) It is clear therefore that the State Industrial Court has based its decision on the question of limitation upon certain assumptions for which there is no basis on record. The State Industrial Court has observed that when original form O was given to the Deputy Commissioner of Labour, a similar form O was admittedly sent by the petitioners to the Labour Commissioner at Bombay. The actual averment in the petition is that while the original notice in form O and the statement of the case were filed before the Deputy Commissioner of Labour for being forwarded to the Labour Commissioner at Bombay, what were sent by way of abundant caution were a copy of that notice and a copy of statement of the case. There was no evidence or material before the State Industrial Court to give a finding as to when this copy reached the office of the Labour Commissioner. There is therefore no basis for the conclusion of the State Industrial Court that this copy was received at Bombay in the office of the Commissioner of Labour on 21-9-1962 on which date, it has been assumed, that the conciliation must be taken to have commenced. In our opinion, the finding of the State Industrial Court, so far as this petition is concerned ,is clearly vitiated by an error apparent on the face of the record in determining 21-9-1962 as the date on which the Labour Commissioner was found to have received the copy of the statement of the case and the notice in form O which was despatched from Nagpur on 19-9-1962.
(16) The finding given on the other question by the State Industrial court also cannot be sustained, namely, as to the consequence of the statement of the case being corrected in the office of the Deputy Commissioner of Labour at Nagpur on 11-101962. That date is the date of correction of the statement. The contention of the petitioner was that the statement was not forwarded to the Labour Commissioner till that date. The State Industrial Court has observed that no evidence was led to show as to when it was forwarded thereafter to Bombay or when it was received by the Labour Commissioner at Bombay. We have already referred in this context to the prayer made on behalf of the petitioners that they should be allowed to show from the record of the proceedings before the Conciliator which were requisitioned while the Reference was pending that the notice and the statement of the case after correction were despatched to Bombay on 24-10-1962. If only the opportunity asked for by the petitioners has been conceded by the State Industrial Court that Court could have easily satisfied itself from a perusal of the proceedings before the Conciliator that the notice in form O and the corrected statement of the case were despatched by the Deputy Commissioner of Labour at Nagpur to the Labour Commissioner at Bombay on 24-10-62. This is obvious from page 3 of the note sheets of the proceedings before the Conciliator. Thus, there is again no warrant for the assumption made by the State Industrial Court that because the form was corrected on 11-10-62 it was dispatched on the same date and must have been received in Bombay by the Commissioner of Labour on 13-10-1962 and on that footing to hold that the conciliation must be deemed to have commenced on 13-10-1962.
(17) We are thus satisfied that so far as commencement of conciliation within the meaning of section 37 (1) of the C. P. and Berar Industrial Disputes Settlement Act is concerned, the conciliation cannot be deemed to have commenced in Industrial Reference No. 13 of 1963 before 24-101962 and must be deemed to have commenced on some date after 24-10-1962 when the papers should have reached the Commissioner of Labour at Bombay to whom they were dispatched on 24-10-1962. After the papers were received by the Labour Commissioner after 24-10-1962, he determined, as he was required to do under sub-section (2) of section 37, that the conciliation in this case shall be held by one Shri Badiuddin. This direction was given by the Labour Commissioner on 10-11-62. This is clear from the notification issued by the Deputy Commissioner of Labour, which is Ex. 3 (Annexure J) to this petition. On the same date the conciliator Shri Badiuddin issued notices to the parties to appear on 16-11-1962 to explore the possibility of conciliation. That date was altered to 28-11-1962. But even on 28-11-1962 the conciliator being absent the parties by mutual consent extended the period from time to time. Exhibit A-6 shows that Shri Badiuddin closed the conciliation proceedings on 11-1-1963, and submitted his report to the State Government as required by section 37 (6) of the Act on 14-2-1963. This is clear from the communication by the Conciliator to the Municipal Commissioner of respondent No. 2 Corporation under Ex. A-6 (Annexure M) to the petition. It is not disputed on behalf of respondent no. 2 that in case it is established that the statement of the case and the notice inform O were received by the Labour Commissioner sometime after 24-10-1962, then the Reference Application made on 13-3-1963 would be within time because it will have been filed within three months of closure of the proceedings as well as date of the report of the Conciliator to the government under section 37-(6) of this Act.
(18) It is, however, contended on behalf of the contesting respondent that presentation of the statement of the case along with the notice in form O to the Deputy Commissioner of Labour must be taken as presentation to the Commissioner of Labour. there are no rules or any provision of law under which the Deputy Commissioner of Labour was authorized to receive notice in form O or statement of the case. If, however, he received it according to the practice as suggested, then he must be taken to have acted on behalf of the Commissioner of Labour and in that view of the matter the argument runs, proceedings, should be deemed to have commenced under section 37 (1) of the Act either on 19-9-1962 when the unamended or incorrect statement of the case was received, or at any rate, on 11-10-1962 when the statement of the case was corrected. We do not think it is possible to accept this contention. Under section 37 (1) a formal date of commencement of conciliation proceedings if provided for by the Legislature and that date is the date on which the statement of the case is received by the Labour Commissioner. Labour Commissioner does not include Deputy Commissioner of Labour or, for the matter of that, Assistant commissioner of Labour. It is an admitted position that there are no rules under which the powers of receiving a statement of the case under section 37 (1) have been delegated by the Commissioner either to the Deputy Commissioner of Labour or Assistant Commissioner of Labour. Until, therefore, the statement of the case actually reaches the Commissioner of Labour, the fiction that is introduced in section 37 (1) as to the date of commencement of conciliation cannot come into force and cannot be deemed to have come into force by another fiction, namely, receipt of the statement of the case by the Deputy Commissioner of Labour or Assistant Commissioner of Labour should be deemed to be receipt of the statement of the case by the Commissioner of Labour. At the most, what happens in such a case is that the Deputy Commissioner of Labour or the Assistant Commissioner of Labour lends his good offices for receiving the application which many times may contain irrelevant or unnecessary matter or material and serves as a scrutinizing authority before the statement of the case in the proper form containing only such matters as are reasonably capable of being the subject-matter of conciliation, are forwarded and received by the Commissioner of Labour. The mere fact that the office of the Deputy Commissioner of Labour, Nagpur, lends its services to commence conciliation proceedings cannot alter the fact that so far as the fictional date of commencement of conciliation is concerned, it must be determined with reference to the date of actual receipt of the statement of the case by the Labour Commissioner at Bombay and not by any other officer. It must therefore be held that in the instant case the conciliation cannot be deemed to have commenced within the keening of section 37 (1) of the Act until the statement of the case was received by the Labour Commissioner at Bombay and that date is certainly not earlier than 24-10-1962.
(19) In support of the finding of the State Industrial Court. It is urged as a limb of the same argument that under section 37 (7) a time-limit is fixed for completion of the conciliation, and there are three such limits of time prescribed by section 37 (7). They are as follows:
(1) In the absence of any action by anybody, a conciliation proceeding if required to be completed within a period of four weeks.
(2) The period of limitation may be extended by mutual agreement of parties, and for such extention there is no limit of time. In other words,. the parties may extend the period during which the conciliation may pend without any restriction.
(3) If the parties fail to agree to extension of time for conciliation to be completed, power is given to the Provincial Government to extend the period for such conciliation initially for a period of two weeks, liable to extension by another period of two weeks, the aggregate being not more then four weeks in all.
(20) The relevancy of this period within which the law requires conciliation to be completed is intimately connected with sub-section (8) of section 37, as well as interpretation of section 38A (1) of the Act. It will be seen that under section 38-A (1) a right has been given to either of the parties to the conciliation proceedings in case there is no settlement before the Conciliator to refer the industrial dispute for arbitration to the Industrial Court, and such a reference can be made unilaterally by either of the parties, if reference is made within three months of 'the completion of the conciliation proceedings'. One is therefore again thrown back to find out as to when conciliation proceedings are said to be completed. For this purpose, sub-section (8) of section 37 again introduces a fiction. Under that sub-section different points of time are indicated to determine when a conciliation proceeding is to be deemed to be completed. These are:
(a) When settlement is arrived at in the proceedings, then the date is the date of registration of the agreement.
(b) If there is not settlement, then one date is the date when the report is submitted to the Provincial Government as required by sub-section (6) of section 37 by the Conciliator.
(c) The time limit fixed for completion of proceedings under sub-section (7) of section 37 i.e., either of the three points of time which are indicated, as already observed, under sub-section (7) of section 37.
(21) We are concerned in this case in a contingency where there was no settlement arrived at between the parties and the case that has arisen for consideration in the petitions is as to when for the purposes of section 38A (1) it could be said that 'conciliation proceeding was completed'.
(22) It is urged on behalf of the contesting respondents that sub-section (6) of section 37, which requires a report to be made by the conciliator to the Provincial Government itself does not fix any time-limit within which the Conciliator is required to make a report after the closure of the conciliation proceedings before him. It is therefore suggested that the obligation to make a reference unilaterally under section 38A (1) cannot possibly be made depend on the submission of this report by the Conciliator because neither party has any control over the time within which the report is to be made, nor are they concerned with the making of the report. There is not express provision in the law entitling either party to have a copy of the report or even notice from Conciliator that he has made a report. Thus, the only point of time so far as the parties are concerned which is relevant according to this argument, will be the notional point of completion of proceeding under sub-section (7) of section 37, and once that point is reached by expiry of four weeks period under the first contingency of by expiry of the period mutually agreed between the parties, or empery of the time extended by Government, the moment that point is reached under any of the three contingencies, the limitation begins to run against the party which wants to make a reference under section 38A (1). The extreme logical conclusion of this reasoning is that the moment the Labour Commissioner is shown to have received the statement of the case, which is also fictional commencement of the conciliation, on calculation of four weeks from that period, he should also determine the point of time when that conciliation can be said to have been completed under the fiction created under sub-section (8) of section 37. It is on this basis really that the first finding is reached by the State Industrial Court in Industrial Reference No. 16 of 1963 when the Court held that if the statement of case could be said to have reached the Labour Commissioner on 21-9-1962, it should be deemed to have been completed on 21-10-1962, and therefore the reference made on 13-3-1963 was beyond time. If this interpretation of the various sub-sections of section 37 is correct, it will lead to the startling result that even before a Conciliator is appointed and conciliation proceedings in fact begin the conciliation is deemed to have been completed. We are not in a position to accept such an interpretation of various provisions of section 37.
(23) It is true that under sub-section (7) of section 37 the Legislature has indicated the period during which the conciliation proceeding is to be completed, but the completion of conciliation proceedings itself postulates that there is a Conciliator and a proceeding, before a conciliator. Even before the appointment of a Conciliator which a Labour Commissioner is enjoined to make under sub-section (2) of section 37, it is hardly possible to hold by fiction under section 37 (1) and section 37 (8) that a conciliation proceeding could also be said to have been completed. The appointment of a Conciliator is not a formality. The Conciliator exercises important function and powers and he is enjoined with certain duties in the process of conciliation. Elaborate rules have been made empowering the conciliator to issue notices and to make every effort to bring the parties together, smooth out the differences if possible, and to make a genuine attempt to see that an agreement is arrived at if possible. This is provided in sub-section (3) of section 37 itself. This is also clear from the nature of the report that he is required to submit under sub-section (6) of section 37 in case of a failure of agreement in the conciliation proceedings. After the close of the conciliation proceedings, the Conciliator is required to send a report, together with his finding as well as recommendations to the Provincial Government. This again is not a mechanical act of simply intimating to the State Government that the Conciliation has failed. The Conciliator has to apply his mind to the nature of the controversy, the demands, the views of each party and the material that is placed before him. He has also to find whether the demands were reasonable or unreasonable and make recommendation to the Government according to his own light, in view of the evidence and facts placed before him. Thus the role of a conciliator in conciliation proceedings is important enough and not merely a step-in aid before parties reach the stage of unilateral reference provided for under section 38-A. The Conciliator acts as a confidante of each of the parties. The proceedings before him are to be held in camera, and he has to induce a certain sense of security and protection from improper use being made for the information disclosed to him by either party. The employer is required to disclose his views and other difficulties which may hamper in coming to a settlement. On the other hand, the difficulties which prompt a notice of change either by the employer or by the employee in the day-to-day working also put a responsibility upon the Conciliator when the conciliation is in progress. The Conciliator therefore fills an important office in the scheme of settlement of disputes by negotiations and collective bargaining. The Conciliator must take his duties seriously and is enjoined to do his best to avoid threat to industrial peace and to bring about amicable settlement as far as possible. We are therefore unable to accept the contention that the conciliation proceedings are required to be completed within a period of four weeks under the first provision of sub-section (7) of section 37, from the fictional date of commencement. the four weeks period must be counted from the date when the Conciliator begins to function and function effectively. Unless a Conciliator is appointed to act as such, we fail to see how the conciliation proceedings can be said to begin, though for the purpose of the fiction introduced in section 37 (1), they are deemed to have commenced the moment the notice and the statement of the case are received by the Labour Commissioner. We will presently show that the fiction is limited for a particular purpose.
(24) Under section 51 of the Act the employer is prohibited from making an illegal change, and a change made before conciliation proceedings have been completed is said to be an illegal change. It is precisely for this purpose that provisions have been made in sub-section (1) of section 37 for a deemed date of commencement of conciliation and also another deemed date for completion of conciliation proceedings in sub-section (8) of section 37. In other words, the legislative mandate is that there should be no change in the status quo by either side so long as a genuine attempt is being made to bring about the desired change by mutual agreement between the parties; and both parties are prohibited from doing anything which will put in jeopardy this attempt at an agreed solution of the dispute. But we are not prepared to hold that for the purpose of calculating the period of four weeks, within which the conciliation proceedings are required to be completed, all such subsequent period which will be mutually agreed to between the parties or which may be fixed by the Court is to be counted from the fictional point of commencement of the proceedings under S. 37 (7) because at that stage the Conciliator himself is not appointed. The conciliation proceedings must mean the proceedings before a duly appointed Conciliator and unless a Conciliator is appointed the conciliation proceedings cannot possibly be said to have effectively commenced. So far as the calculation of the period provided in sub-section (7) is concerned, that period must begin only after the appointment of a Conciliator and not till then. It is not expected that a responsible office like the Labour Commissioner will make undue delay in appointing a Conciliator, a duty cast on him under sub-section (2) of section 37. A Labour Commissioner is required to be equally alive to his duties under the provisions of the Act, and we have not been shown that there has been any undue delay in this matter or any difficulty is caused because of the inordinate delay in the matter of appointment of a Conciliator.
(25) But it is urged, as we have already noticed, the Legislature could not have intended to fix two points of time for calculating the period of Limitation within which an application for reference should be made by either parties under S. 38A(1). We do not see why such a provision could not have been made by the Legislature, bearing in mind the nature and purpose of the conciliation proceedings. The two points of time are (1) expiry of the period either fixed by agreement or by the Government or four weeks, and (2) submission of report by the Conciliator under sub-section (6) of Section 37.
(26) It may well be that in a given case from the very inception of proceedings it may be obvious to either party that an agreement is impossible either because the demands are too high or because the attitude of one party or the other is intransigent or not amenable to any suggestion or adjustment or accommodation. In such a case a party is enabled on the expiry of the period fixed under sub-section (7) of Section 37, within three months thereof to make an application for reference under S. 38A (1). On the other hand, it may well be that the party will prefer to wait, in view of the nature of material that has come forward and the interest which the Conciliator may have taken, to find out what his findings and recommendations to the Government may be and then decide to file a reference application within three months of the making of the report. In this connection it was suggested that there is no provision for a party to the conciliation proceedings being given a copy of the report to the Government, which is treated more or less as a confidential document. We do not find any thing in any provision of the Act or the Rules to hold that this is a privileged document to which a party may not have access or that it is confidential document in the sense that a copy of the same is not to be made available to either parties. Though the conciliation proceedings are held in camera, so far as the parties themselves are concerned, they are vitally interested in the report, findings and recommendations made by the Conciliator to the Provincial Government. We therefore do not see any reason why, if a party so chooses, it should be denied to have access to a copy of the report. In fact, even in arbitration proceedings which are commenced. the report of the conciliator, who is responsible officer and who is required to give his findings and make recommendations, will have an important bearing in deciding the questions before the arbitrator. There may be many questions of fact which may be in dispute before the arbitrator on which the parties were at issue before the Conciliator, and the conciliator may have come to his own conclusion on those matters. It will certainly be a material and relevant piece of evidence being a report of a responsible officer who has devoted time and energy to find out the common ground on which one party can meet the demand of the other. From this aspect of the matter, the second point of limitation from which within three months a party can go to the Reference tribunal also seems to have been advisedly provided by the Legislature. Moreover, we are not prepared to hold in view of the language in which sub-section (8) of S. 37 is cast, that the Legislature intended that one of the points of time when the conciliation can be said to have commenced should be excluded in interpreting the provisions regarding limitation in sub-section (1) of S. 38-A of the Act. In our opinion, either party is entitled to file a Reference Application either within three months of the period calculated within three months of the period calculated under sub-section (7) or from the date when the report is submitted under sub-section (6) of S. 37.
(27) In this connection the learned counsel for the petitioners has invited our attention to a few decisions which lay down the principle on which the provisions of sub-section (7) of S. 37 regarding fixation of time or period of limitation, cast a duty on a public officer, is to be interpreted with reference to the rights of parties. In. A. M. K. Bus Service v. State of Bombay, : 1959CriLJ1122 interpretation of S. 12(6) of the Industrial Disputes Act, 1947. (Central) came in for consideration. Section 12 of the Act prescribes the duties of officers and under sub-section (6) of Conciliation Officer is required to make a report under this section within 14 days of the commencement of the conciliation proceedings, or even within shorter time if a shorter time is fixed by the appropriate Government. Under S. 33 of the same Act no employer can in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of work during the pendency of any proceeding before the conciliation officer.. The question that arose in the case was whether a conciliation proceeding could be said to be pending when Conciliator did not submit a report within the period of 14 days of the commencement of the conciliation proceedings so as to give immunity to an employer who altered the conditions of service of workmen after period of 14 days. Their Lordship held in paragraph 5 that there was no doubt that S. 12 contemplates that the report should be made and the proceedings closed within a fortnight, and if proceedings are not closed but are carried on, or if the Conciliation Officer does not make his report within 14 days he may be guilty of the breach of duty, but the law the proceedings do not automatically come to an end but only terminate under S. 20 (2) (b) of the Act which applies to all proceedings. This appeal arose out of a decision in this Court reported in The State v. Andheri-Marol-Kurla Bus Service, : (1955)ILLJ378Bom , and in considering the effect of the provisions of S. 12(6) of the Industrial Disputes Act which uses a peremptory word viz., 'shall' requiring the officer to submit his report within 14 days, the Division Bench has observed as follows in paragraphs 6 and 7:
'6. The question of construing the provisions of S. 12 presents problems which have been considered by judicial decisions on several occasions in the past. Often enough Legislature uses words like 'shall' which are mandatory in form and often enough Courts have to decide what the effect of the use of these mandatory words is in a particular provision contained in the statute.
XX XX XX XX XX (7) The construction of the material clause requires the Court to take into account the intention of the Legislature. In construing this clause, we have to bear in mind the object which the Legislature had in view, the scheme which the Legislature has adopted for carrying out that object and the effect of the construction for which both the parties contend before us. In dealing with the question as to the effect of the use of imperative words, very often distinction is sought to be drawn between cases where the statute confers upon a public officer a privilege or power or where it imposes upon him an obligation or duty.'
Then are quoted the following words from Maxwell:
'Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.'
(Maxwell on Interpretation of Statutes, 10th edn., p. 376).
In applying this test the Division Bench further observed as follows:
'Now, if we consider the scope of the statute and the object which it has in view there can be little difficulty in coming to the conclusion that the arguments based on the object and scope of the statute are in favour of the construction for which the learned Government Pleader contends. If S. 12(6) is construed in the manner which appeared in reasonable, it would lead to this unfortunate result that in a very large majority of cases conciliation efforts are bound to fail. I have already indicated that unless the nature of the industrial dispute admits of a very easy and quick solution, in a large majority of such disputes it would be necessary for a conciliation Officer to prepare the ground for mutual settlement by collecting necessary data and statistics, by arguing with the parties one against the other, and by inducing them ultimately to agree to certain terms by consent. However quick the Conciliation Officer may be and however responsive both the parties to the dispute may be, it seems very unlikely that within the statutory period of 14 days, many industrial disputes can be settled. If that is so, then the construction which makes the Conciliation Officer's work almost impossible should, we think, be avoided if it can be reasonably so done.'
(28) We must therefore bear in mind the purpose for which the period of conciliation is fixed by sun-section (7) of S. 37, and the point of time from which that period can be reasonably counted. the purpose for fixing notional or fictional date of commencement of conciliation and also completion of conciliation we have already indicated, and that is to ensure the status quo being maintained by both the parties so long as a genuine attempt at solution is initiated and is in progress, and until final decision is reached, that solution is not possible and no change can be effected. In this connection we may also refer to sub-section (10) of Section 37. That sub-section provides that no change shall be made in respect of an industrial matter regarding which no settlement is arrived at until the State Industrial Court by a decision given in pursuance of an application under S. 38-A sanctions the change. This sub-section necessarily postulates that if on failure of conciliation either party wants to go to an Industrial Court for reference, then the time taken for completion of the reference proceedings is also the time during which no change can be made by either party. If either party is allowed the limitation fixed for going to industrial tribunal under s. 38-A (1), then it may be possible to say that the embargo or the restriction on the right to make a change is not removed until that stage is reached even after completion of the proceedings; the Act imposes a further limitation on the rights of the parties not to effect change even during the pendency of the reference proceedings, if a reference is made by either party. All these provisions will show that the object of the Legislature in introducing a notional or fictional date as the date of commencement of conciliation, and another notional date as the date for completion of conciliation, is to maintain the status quo between the parties so as not to put in jeopardy chances of conciliation. Such provisions cannot be utilized by an interpretation which will negate the very object and will throttle the negotiations or arbitrations on failure of such negotiations.
(29)It must therefore be held so far as Special Civil Application No. 684 of 1964 is concerned that the Reference could not have been rejected as the statement of the case reached the Labour Commissioner after 24-10-1962. Similarly, in Special Civil Application No. 704 of 1964 the statement of the case was forwarded to the Labour Commissioner and must have been received by him sometime after 2nd of February 1962, and though the conciliation came to a close so far as the Conciliator was concerned on 30th April 1962, the Conciliator made his report on 18-5-1962 and the reference application was filed well within time of three months of that date and must be held to be in time. Industrial Reference No. 16 of 1962 could not have therefore been ejected on the ground that the application was barred by limitation.
(30) Now we shall deal with the other two contentions which arose so far as Special Civil Application No. 684 of 1964 is concerned.
(31) The second objection raised by the contesting respondent in this petition is that the notice itself was untenable as the notice covers industrial matters already adjudicated upon by the Mujumdar Award. This objection is put in two ways. It is submitted that before Mr. Mujumdar there was a claim made on behalf of the employees of the Corporation like village Patwaris, market moharrirs, tax collectors etc, for getting a cycle allowance, and an issue was also framed in respect of this demand both when the original award was given and also after remand. Dealing with this demand, the finding in the award is given in paragraph 62 in the Mujumdar Award. The learned arbitrator has disposed of this demand as follows;
'The Corporation employees have asked for a uniform cycle allowance of Rs. 4 per mensem for such employees as have to work outside the Corporation office and have to visit several parts of the city in the discharge of their duties. The demand is reasonable. Here, however, difficulty is experienced in the case of those employees who are provided with a cycle by the Corporation. During the course of arguments, it was suggested by the counsel for the employees that every Corporation employee who has to move in the city for Corporation work should be encouraged to purchase his own cycle and the Corporation should not provide him with a cycle. It would thus be possible for all the employees to have Rs. 4 per month as cycle allowance and there will be left no ground for complaint that while some get Rs. 4 per month as allowance, others are paid Rs. 2 or Rs. 2-8-0 as cycle allowance because the Corporation lends its cycle to them for use. In this respect, the Corporation has passed the necessary resolution in its meeting dated 6-8-1955 and this demand is more or less accepted by the Corporation. I would direct the Corporation to act according to its resolution dated 6-8-1955. There may be employees who have to move in the city and who yet have no cycles. The corporation is directed to arrange to give such an employee, of course, after taking from him the necessary security for the return of money, such advance as may be necessary for the purchase of a cycle. I give the Corporation six months time to pay such employees the necessary advance if an application is made to it and necessary security is furnished.'
(32) It will be seen that so far as the actual direction in the award is concerned, the Corporation is directed to act according to the resolution dated 6-8-1955. That resolution is now made available to us and a free translation of that resolution in English could be rendered thus;
'Information regarding those employees who are on outside work and for whom maintenance of a cycle becomes unavoidable, and such of them as have their own bicycles, should be collected, and if any of them are excluded from monthly cycle allowance of Rs. 4, then such allowance should be given to them. This principle is accepted by the house. Similarly, those employees who have to do executive duty and are eligible for a cycle allowance, should in as great number as possible, be given cycle advance for purchasing their own cycle and should be encouraged to purchase them and should be given a cycle allowance of Rs. 4 per month.'
(33) It will be seen that there is no express reference to any class of Inspectors or Assessment Inspectors in the category of employees on whose behalf the demand seems to have been made. The actual reference in demand No. 6 is to employees like village patwaris, market moharrirs, tax Collectors etc. When we asked the learned counsel for the corporation i.e., respondent No. 2 to point out the objections in their written statement to this demand, it was admitted that no such objection was raised in the written statement, but it was pointed out by reference to paragraph 6 of the written statement that the demand regarding pay-scales was not tenable firstly because it was given up before the Conciliator, and also not maintainable in view of the provisions of Ss. 54 and 55 of the C. P. and Berar Industrial Disputes Settlement Act. Now, under S. 54 of the Act whenever there is an award after submission of a dispute, the employees who are parties to the dispute are bound by the award. It is not disputed that the Assessment Inspectors were parties to the dispute which was referred for adjudication by Mr. Mujumdar. But their demands were regarding pay-scales. Unless it is shown that the Assessment Inspectors have also put up a demand for any kind of vehicle allowance or for motor cycle allowance by way of transport facility or vehicle allowance, provisions of neither S. 54 nor S. 55 would come in the way of the petitioners in giving a notice of change claiming motor-cycle allowance which they claimed in this notice. We are somewhat surprised that the Industrial Court should have allowed this issue to be raised even without any pleading or objection to that effect on the part of the Corporation. But we have heard the learned counsel for the Corporation in view of the finding given by the Industrial Court, which finding has the effect of non-suiting the petitioners. Unless the demand in the earlier award covered the same field as the demand of the change in the notice under challenge, we fail to see how either the provisions or the principles of Ss. 54 and 55 can be called in aid by the respondent. It is, however, suggested that all those who were getting cycle allowance must be deemed to include the Assessment Inspectors who are undoubtedly getting cycle allowance, and though grant of cycle allowance at the current rate to Assessment Inspectors was not the subject-matter of adjudication before Mr. Mujumdar. Mr. Mujumdar should be taken to have decided that the allowance for people who are asked to work outside should be by way of cycle allowance and no change is necessary. It is difficult to accept this construction of the adjudication on this point by Mr. Mujumdar. We are also not inclined to accept the contention that merely because one kind of vehicle allowance has been granted under previous adjudication, when with change of duties, and change of circumstances, another kind of allowance comes to be claimed, such a demand can ipso facto be said to be a change in respect of the same industrial matter. In order that an adjudication in a previous award must result as an effective bar for an invitation to a fresh adjudication, the demand must cover the same field. It is only then that a claimant will be required first to terminate the award and then ask for a change by a notice. It is also doubtful whether a part of this award can be terminated by a notice by some persons affected by the award. In view of the fact that no such contention was raised in the plea we fail to see how many evidence could be led on this question. Normally, the issues which arise out of the contest between the parties as a result of pleadings or claims should be indicated with sufficient clarity to focus the attention of the parties on the points in controversy. This is a singular case in which we find that this procedure has not been followed. It has naturally resulted in all kinds of topics being introduced at the stage of evidence. It is unfair to either party to allow evidence to be led on matters on which the case of each side has not been specifically put before the Court. If the respondents wanted to raise a bar previous adjudication, they should have specifically raised an issue and attention of the parties ought to have been focussed on such contention. We are therefore not in a position to find out what exactly the objection of the respondent is to the raising of this question in the notice. If it is contended that the question of cycle allowance was adjudged in the reference before Mr. Mujumdar, no material has been placed before us to hold that the Assessment Officers had made any such demand before Mr. Mujumdar. We are not prepared to hold that demand No.6, which was confined to inferior class of employees of the Corporation should also be deemed to have included in it. Assessment Officers who are a more responsible class of employees of the Corporation as they belong to supervisory staff. merely because they have been paid the same scale of cycle allowance as those who have demanded it as indicated in demand No. 6. Mr. Pendharkar is undoubtedly right in saying that if this demand is covered by previous adjudication, full effect will have to be given to Ss. 54 and 55 and unless the petitioners were to get rid of the effect of subsistence of the award as a binding contract between the parties, a fresh demand in respect of the same matter could not be made. But in our opinion the respondents have failed to establish that any such demand on the part of the Assessment Inspectors was in issue or was adjudged in the Mujumdar Award, and therefore any contentions based on the subsistence of Mujumdar Award must fail.
(34) This takes us to the decision of the State Industrial court regarding the merits of the claim. It is obvious that the State Industrial Court has devoted considerable time and energy to give the findings on issues of law and comparatively very insufficient attention seems to have been paid to determining the validity of the main demand of the petitioners regarding the motor-cycle allowance. The whole discussion is contained in the last but one paragraph of the order. In fact, the reference itself is disposed of as an order in the order sheet. One of the contentions raised by Mr. Dhabe is that there is no award in this case. Apart from the technical aspect of this contention, one should have expected a detailed consideration of the evidence and material placed before the Industrial Court before a conclusion could be reached as to the tenability or validity of the demand.
(35) The petitioners' grievance was that they have to do duties more or less analogous to other Inspectors in other departments. It is an admitted position that a motor-cycle allowance is paid to Inspectors in Health Department, Market Department, Octroi Department, Education Department and also in Public Conveyance Department, but it is not paid to Inspectors in Assessment Department. One salient fact which has emerged and which is not controverted, is that all the inspectors are employed in the same grade of pay-scales, and that an Inspector in one department is transferable to any other department. This one fact must necessarily lead to the conclusion that while an Inspector who is doing a duty in the Assistant Department will have to use a cycle as a vehicle for transport and will be eligible to draw only Rs. 4 per month by way of vehicle allowance, which is a cycle allowance, when the same person is transferred to other Departments where an Inspector is entitled to draw a motor-cycle allowance. We put it to the learned counsel whether an Inspector who purchases a motor cycle when he was working in such department as an Inspector, should allow that vehicle to remain idle if he is transferred to Assessment Department and should also make available to himself a bicycle because he is eligible to draw only the cycle allowance; no satisfactory answer was available. If the Inspector in one department is liable to be transferred to another department, this involves an admission that work as an Inspector in all these Departments is more or less of the same type, involving the same kind of duty or work load. The learned member of the State Industrial Court has observed by reference to certain statements in evidence that those Inspectors who had to do current work in the Assessment Department had to visit 450 houses a month, which comes to 4 to 5 houses a day, and those who are required to do revaluation work cover an area of one-fourth of a ward each ward consisting of 1000 houses, which again comes to 4 or 5 houses a day. We do not think the whole matter could be disposed of by an arithmetical calculation of this type. The Corporation on its part has not made any specific attempt in its written statement to state specifically details of actual work required to be done by Assessment Inspectors. Much of the written statement is devoted to a denial of the allegations made by petitioners in the application. But in a proceeding like the present, for industrial adjudication in respect of a demand made by employees, something more than a strict conformity with the pleading and action at law is expected on both sides. The Corporation as employer was in the best position to disclose to the arbitrator precisely what are the duties of Assessment Inspectors as well as other Inspectors in other departments who are paid motor-cycle allowance, in order to compare and contrast the duties between the two classes of Inspectors. The petitioners have placed on record Ex. A-7 which is a list of duties which Assessment Inspectors are required to perform. It is a fairly long list and the correctness of the same has not been disputed. It is an admitted position that about 10 Inspectors in the Assessment Department are appointed as Divisional Inspectors. As Divisional Inspectors, their duties extend to more than one ward and may be about 4 wards for each Divisional Inspector. So far as those Assessment Inspectors who are allotted the work of Divisional Inspector are concerned, their duties must involve travelling over a considerably wider area than the Assessment Inspectors who are merely doing the work of revaluation or even current work. One of the witnesses examined for the Corporation, Mr. Motghare, stated that moto cycle allowance is attached to the post and is not related to the area covered a statement which runs entirely counter to the whole case of respondent Corporation that the choice of giving cycle allowance or motor cycle allowance is determined by the area which is to be covered in the course of duties by an Inspector. It is an admitted position that Market Inspectors qualify for a motor cycle allowance. We asked the learned counsel for the Corporation whether a market inspector is expected to go on the market day beyond the market area, but no satisfactory explanation or elucidation was possible from the information or material on record in this connection. The learned counsel for the Corporation referred us to duties of different types of Inspectors, or such of them as were considered by the Mujumdar Award, and one of the categories of Inspectors considered there were Market Inspectors. At page 974 of volume II of the printed Paper Book in respect of the appeal which went to the Supreme Court, is given the duty list of Market Inspectors in respect of dangerous trade, in respect of weights and measures and in charge of weekly markets. Now, a perusal of the duties of an Inspector allotted to weekly market shows that he is required to check work in connection with the holding of wholesale vegetable market, to check the licences of dalais and to check daily collection register of bazar dues. But from these duties it is not clear whether on a single day the Market Inspector is required to visit more than one weekly market. If the work is confined to the area of a single weekly market, we do not see how that work differs from the area of the Assessment Inspector whose area of operation for one day is mostly confined to a limited space as observed by the State Industrial Court. What we have stated above is only illustrative of the fact that sufficient material has not been placed before the Court by the Corporation and it was necessary for adjudication in a matter like this to call upon both the parties to give details of work done by the Assessment Inspector to find out as far as possible at least approximately, the actual area required to be covered in a single day's work, and then to compare that with the work allotted to Inspectors in other departments who have qualified for a motor-cycle allowance. It may be that after a thorough investigation another Court may come to the same conclusion as it has now, but before a demand is rejected or accepted, it is essential that all the aspects of the demand must be thoroughly investigated.
(36) In an industrial adjudication it is not as if an arbitrator is restricted to the pleadings of the parties and the evidence that may be led. He is not hampered by any strict rules of evidence or pleadings, or for the matter of that, technicalities of procedure. An arbitrator is in a better position to collect information which has any bearing and relevance in determining the issues raised before the arbitrator, and these powers are required to be exercised in order that the matter raised in an industrial dispute may be satisfactorily adjudged. If after a detailed investigation it is found that a change is or is not necessary, the party against whom the award may be pronounced, may find considerable difficulty in challenging the adjudication before any other tribunal. It is only in this context when the arbitrator has fully applied his mind, considered the matter from all these aspects that the principle for which the learned counsel contended, namely reluctance of this Court to exercise extraordinary jurisdiction under Art. 226 or Art.227 of the Constitution either in re-appraising the matter or in interfering with the award, can be legitimately called in aid. If the arbitrator failed to do this duty, then it is not possible to hold that in spite of such a failure there can be no interference with the order. It is in this aspect of the matter that the contention of the petitioners that there has been no award has some force. It looks as if the matter has been treated as an issue arising in a suit between the parties and finding is given because one party has failed to establish its case as is required by the Code of Civil Procedure. We are unable to accept that this is a proper approach in an industrial adjudication. The special machinery that has been created by the law regarding industrial adjudication is intended for ensuring that all aspects of the dispute or the demands have been thoroughly investigated and considered, and then a finding is given as to the justness or tenability of the demand. With some reluctance we have come to the conclusion in this case that the order which has been challenged before us does not satisfy these tests. It is true, this Court exercising its powers under the Constitution will not substitute its own finding for that of the arbitrator, nor are we called upon by the petitioners to do this. But the petitioners can certainly show that the adjudication is not proper and all aspects of the matter have not been considered and their case has been thrown out on insufficient consideration. We must therefore hold that the finding of the State Industrial court in this case of petitioners that they are not entitled to a change in the matter of motor vehicle allowance payable to them is not satisfactorily made out and on this ground also the order of the State Industrial Court is liable to be quashed.
(37) Accordingly we quash the order dated 24-3-1964 and remand the reference for a fresh decision according to law. The parties will be called upon to make detailed statements, issues will be raised and parties shall be called upon to lead evidence, documentary and oral, in respect of their respective contentions. Thereafter the matter will be decided afresh. In the circumstances, the petition in Special Civil Application No. 684 of 1964 is allowed. The petitioners will be entitled to costs.
(38) The petition is Special Civil Application No. 704 of 1964 is also allowed, the order of the State Industrial Court dated 29-6-1964 is set aside and the case is remanded for a fresh decision according to law. Both the petitioners will be entitled to costs.
(39) Petitions allowed.