1. This writ petition raises a question relating to the scope and the extent of the power of the State Government to amend a reference made under S. 10(1) of the Industrial Disputes Act, 1947, to an industrial tribunal for adjudication.
2. The material facts relating to the issue are not in dispute. The petitioner is Chandra Spinning and Weaving Mills, Ltd., Bangalore (hereinafter called the Chandra Mills), while the three respondents are respectively the State Government, the industrial tribunal and the workmen of the Chandra Mills. The petitioner employs about 420 workers. The workers went on strike sometime about 17 March 1959 as a protest against the transfer of six workmen from one shift to another and put forward certain demands. The conciliation officer tried to bring about an amicable settlement of the dispute but his efforts proved abortive. The workmen complained that they had been illegally dismissed from service and that they were all entitled to reinstatement with back-wages. The State Government made reference No. LIH 503/ILD. 58, dated 5 October 1959, in exercise of the powers conferred by C1. (d) of Sub-section (1) of S. 10 of the Industrial Disputes Act. 1947 (Central Act 14 of 1947) (hereinafter called the Act), referring the following points for adjudication to the industrial tribunal at Bangalore :
'Points for dispute :
1. Is the Management justified in dismissing the 416 workmen specified in the schedule enclosed with effect from 26 March 1959
2. Are the said workmen entitled to be reinstated with full compensation for the entire period of involuntary unemployment
3. To what relief, if any, are the affected workmen entitled ?'
3. On receipt of this reference, the industrial tribunal gave notices to the parties to file their statements. The tribunal settled the issues for determination on 23 December 1959 and recorded the evidence of one witness in full and of another witness in part on behalf of the workmen. At that stage the State Government issued the following order purporting to amend the aforesaid reference :
'GOVERNMENT OF MYSORE
Mysore Government Secretariat, Vidhana Soudh,
Bangalore, dated 9 March 1960 (S.E. 1881)
No. LIH 503/ILD 58.
In exercise of the powers conferred, by Sub-section (4) of S. 10 of the Industrial Disputes Act, 1947, Government of Mysore hereby specifies the points of dispute and directs that the points of dispute referred to in Government Order No. LIH 503/ILD 58, dated 5 October 1959, regarding the industrial dispute between the workmen and the management of Chandra Spinning Weaving Mills (Private)., Ltd., Bangalore-2, shall be amended as follows :-
1. Is the management justified in refusing work to 416 workmen specified in the schedule enclosed with effect from 26 March 1959, and dismissing 54 workmen and discharging 41 workmen subsequently out of the 416 workmen
2. Are the said workmen entitled to be reinstated with full compensation for the entire period of involuntary unemployment
3. To what relief, if any, are the affected workmen entitled
(By order and in the name of the Governor of Mysore)
I. S. SHAIKH,
Under Secretary to Government L.S.G. and Public Health Department.'
4. On receipt of the fresh reference, the parties filed fresh statements. The Chandra Mills challenged the validity and the tenability of the reference dated 9 March 1960 on the ground that the Government had neither power to amend the reference already made nor to make a fresh reference in respect of the points already referred to the tribunal. This question of jurisdiction was considered as a preliminary issue and the presiding officer of the tribunal came to the conclusion that
'When the Government amend, amplify or add to the reference by a memorandum or notification, it will not be contravening the provisions of the Industrial Disputes Act, as in they case of cancellation or supersession of the reference altogether.'
5. The presiding officer was of the opinion that point 1 of the dispute in the first reference had been amended in the second reference 'so as perhaps to accord with facts as understood by the Government' and that the second reference could not be said to have cancelled or superseded the previous reference. Thereafter the tribunal was succeeded by another presiding officer who proceeded with the case from the stage at which it had been left by his predecessor and passed the impugned award on 25 July 1961. In the view that we take on the question relating to the competence of the Government to make the second reference, it is unnecessary to refer to the conclusions reached by the tribunal on the various points of dispute between the parties and the reliefs that it gave to the workmen.
6. The Chandra Mills filed the instant writ petition on 25 September 1961 for a writ of certiorari quashing the award passed by the tribunal in favour of the workmen, contending that the initial reference of 26 March 1959 was illegal and without jurisdiction, that the State Government had no power under S. 10(4) of the Act to make an amendment of the type embodied in the second reference, that the second reference did not furnish the list of workmen who had been either shut out from work or dismissed or discharged from service and that the tribunal had clutched at jurisdiction not vested in it under the law by ignoring that the requisites of a valid reference were lacking in the case. The other grounds adumbrated in the petition relate to the different items of dispute and the procedure followed by the tribunal in the adjudication of the dispute. The petitioner submitted that the reference of 9 March 1960 amounted to a supersession of the reference already made and that such action on the part of the State Government was without jurisdiction. The workmen filed their counter-statement supporting the action of the Government and upholding the validity of the impugned award. The State has filed no statement and hence there is no material to ascertain the circumstances which necessitated the second reference dated 9 March 1960.
7. The sole question agitated by the petitioner before us relates to the scope and extent of the power of the State Government to amend a reference made under the Act. It is not disputed that the first reference was made under S. 10(1)(d) of the Act. The second reference purports to be an amendment under S. 10(4) of the Act. Sub-section (4) of S. 10 of the Act reads thus :
'Where in an order referring an industrial dispute to a labour court, tribunal or national tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the labour court or the tribunal or the national tribunal, as the case may be, shall confine its adjudication to those points and matters, incidental thereto.'
8. It is obvious that this sub-section does not confer any power or jurisdiction on the State Government but defines the jurisdiction of the labour court, the tribunal or the national tribunal, as the case may be, by laying down that it 'shall confine its adjudication to those points (i.e., the points specified in it) and matters incidental thereto.'
9. Sri Nagesha Rao for respondent 3 relied upon S. 21 of the General Clauses Act, 1897 (Central Act 10 of 1897), to support the proposition that the Government had the power to amend or cancel a reference. That section lays down thus -
'Where, by any Central Act or regulation a power to issue notifications, orders, rules, or bylaws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bylaws so issued.'
10. It is well-established that this section lays down a rule of construction and interpretation and does not confer any power on the authority competent to issue any notification, order, rule or bylaw. If this section is read with any section in an enactment conferring a power to issue notifications, orders, rules or bylaws conferred on an authority, it would follow that such power also includes the power to add to, amend, vary or rescind any notification or order, rule or bylaw under that provision. This power to amend, vary or rescind is however 'exercisable in the like manner and subject to the like sanction and conditions if any' as the original power of issuing the notification, order, rule or bylaw is itself subject to. Under S. 15 of the Act
'where an industrial dispute has been referred to a labour court, tribunal or national tribunal for adjudication, it shall hold its proceedings expeditiously and shall, as soon as it is practicable on the conclusion thereof, submit its award to the appropriate Government.'
11. This means that as soon as a reference is made to a labour court or tribunal of an industrial dispute, it is that Court or tribunal which is seized with the jurisdiction to adjudicate upon the points of dispute in the manner and to the extent provided for by the Act. There is no express power conferred on the state Government to interfere with the proceedings of the tribunal. It would therefore follow that the power of the State Government as could be deduced by the combined effect of S. 10(4) of the Act and S. 21 of the General Clauses Act, seems to be restricted to the making of any addition, amendment or variation of points of dispute by specifying the same in any subsequent order in such manner and on such points as would not interfere with the jurisdiction of the tribunal already vested in it on receipt of the original reference.
12. Sri V. L. Narasimha Murthi, the learned advocate for the petitioner, has drawn our attention to a number of decisions to support his contention that the Government had no power to amend the reference and that in any case, it had no power to amend the reference so as to supersede or withdraw the reference already made. The decision of the Supreme Court in State of Bihar v. D. N. Ganguli and others [1958 - II L.L.J. 634] refers to most of the other decisions cited for the petitioner and it would therefore be convenient to take note of the principles laid down by the Supreme Court. In that case, the Government of Bihar referred an industrial dispute between the management of the Bata Shoe Company, Ltd., and their 31 workmen mentioned in annexure A under a notification dated 8 October 1954. The 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 Government also made another reference on 15 January 1955 of a similar industrial dispute between the same Bata Shoe Company and its 29 other workmen. While the proceedings in respect of the two references which had been consolidated by the tribunal were pending before it and the proceedings had progressed to some extent, the Government issued a third notification on 17 September 1955 by which it purported to supersede the two earlier notifications and combine the said two disputes into one dispute, implied the two sets of workmen involved in the two sets of disputes together, to add Bata Mazdoor Union to the dispute and to refer the same for adjudication of the tribunal. The dispute thus referred to was whether the dismissal of the 60 workmen mentioned in the annexure was justified or unjustified and to what relief, if any, were those workmen entitled. On receipt of this notification, the tribunal cancelled the hearing of the two prior references and directed the files of the said references to to be closed. The Bata Shoe Company and its workmen filed two separate applications under Arts. 226 and 227 of the Constitution before the Patna High Court, praying that the lest notification should be quashed as being illegal and ultra vires. The High Court held that the Government had no power to supersede the earlier notifications and issued a writ in the nature of certiorari quashing the third notification. The Government of Bihar approached the Supreme Court and urged before it that the High Court at Patna was in error in holding that the Government had no power or authority to set aside the two earlier notifications and to refer the dispute in question for adjudication to the industrial tribunal under S. 10(1) of the Act. It was contended on behalf of the State that in issuing the third notification the State Government acted bona fide solely in the interest of fair play and justice as it had come to the conclusion that it was necessary that the mazdoor union should be heard before the disputes in question were adjudicated upon by the industrial tribunal and that it would be more convenient and in the interest of industrial peace and harmony to refer to the tribunal in a more comprehensive and consolidated form the dispute between parties and bring before the tribunal all the the parties interested in it. The Supreme Court pointed out that if the State Government had no authority to cancel or revoke a notification issued under S. 10(1), the bona fides of the State Government could hardly validate the impugned cancellation. It was conceded before the Supreme Court that the Act does not expressly confer any power on the appropriate Government to cancel or supersede a reference made under S. 10(1) of the Act. But the learned advocate sought to draw sustenance for Government's action from S. 21 of the General Clauses Act. In dealing with S. 21 of the General Clauses Act; Gajendragadkar, J., as he then was, who spoke for the Court, laid down -
'It is well-settled that, this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant provisions of the said statute. In other words, it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by S. 21, the appellant's contention is justified that the power to cancel the reference made under S. 10(1) can be said to vest in the appropriate Government by necessary implication.'
13. His lordship then proceeded to examine the relevant provisions of the Act and laid down :
'... The appropriate Government undoubtedly has the initiative in the matter. It is only where it makes an order in writing referring an industrial dispute to the adjudication of the tribunal that the reference proceedings can commence; but the scheme of the relevant provisions would prima facie seem to be inconsistent with any power in the appropriate Government to cancel the reference made under S. 10(1). The power claimed by the appellant to cancel a reference made under S. 10(1) seems also to be inconsistent with some other provisions of the Act ...'
14. After discussing the other arguments advanced by the appellant, his lordship observed :
'... If the power to cancel a reference made under S. 10(1) is held to be implied, the proceedings before the industrial tribunal can be terminated and superseded at any stage and obligations and liabilities incurred by the parties during the pendency of the proceedings would be materially affected. It is because all these provisions are intended to operate as a self- contained code governing the compulsory adjudication of industrial disputes under the Act, that S. 15 enjoins upon the industrial tribunal to hold their proceedings expeditiously and to submit their awards, as soon as it is practicable, on the conclusion of the proceedings to the appropriate Government. Thus time is usually of essential importance in industrial adjudications and so the Act imposes an obligation on the industrial tribunals to deal with their proceedings as expeditiously as possible. If the appropriate Government has by implication the power to cancel its order passed under Section 10(1), the proceedings before the industrial tribunal would be rendered wholly ineffective by the exercise of such power ..
We have no hesitation in holding that the rule of construction enunciated by S. 21 of the General Clauses Act in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of provisions of S. 10(1) of the Industrial Disputes Act.'
15. It would be clear from the decision of the Supreme Court that when once a reference of an industrial dispute has been validly made under S. 10(1) of the Act by the appropriate Government, it has no power of rescinding or cancelling the order of original reference.
16. In this context, we would like to refer to an unreported Division Bench decision of this Court in Printers (Mysore) (Private), Ltd. v. Pothan Joseph and others (Writ Petition No. 193 of 1963 decided on 19 July 1963), in which the power of the State Government to amend a reference made to an industrial tribunal by issue of what they called a corrigendum came up for consideration. Our learned brother Narayana Pai, J., referred to the aforesaid decision of the supreme Court and adverted to the principles on which the decision rested. Dealing with the power of the appropriate Government, his lordship observed :
'... Although the tribunal or the Court acquires jurisdiction in respect of an industrial dispute only upon such dispute being referred to it by appropriate Government, the jurisdiction which the tribunal or the Court exercises is a statutory jurisdiction conferred upon it by the statute itself which cannot be treated as one conferred upon it by the Government making the reference. Once the condition precedent for the acquisition of jurisdiction comes about, the tribunal or the Court, as the case may be, becomes seized with that jurisdiction and has to exercise that jurisdiction in accordance with the statute untrammelled by any act on the part of the Government which made the reference. To cancel or revoke a reference already made would amount to the Government itself purporting to take away the jurisdiction which the statute has conferred upon the tribunal or the Court. The tribunal not being either a delegate of the Government or a grantee of the power conferred on it by the Government cannot be deprived by the Government of the jurisdiction which it acquires directly by force of the statute. Once this principle is recognized, it becomes clear that what prevents the Government from cancelling or revoking a reference is the lack of power to deal in any manner with the statutory jurisdiction of a tribunal or Court functioning under the statute. If therefore the principle is that the statutory jurisdiction of a tribunal or Court functioning under the statute has to be exercised according to the provisions of that statute by the tribunal or the Court itself, the incompetence of the Government with reference to that jurisdiction cannot, in our opinion, be limited to merely taking away or revoking that jurisdiction. That incompetence, in our opinion, equally disables the Government from either abridging or to any extent trying to control the exercise of that jurisdiction.'
17. We might further mention that almost all the authorities cited before us have been considered exhaustively in that case and the conclusion reached is that it was not open to the Government to touch upon the jurisdiction of the tribunal to determine the exact nature of the dispute by purporting to correct mistake.
18. We now come to the other decisions relied upon for the petitioner. The decision of the Madras High Court in South India Estate Labour Relations Organization v. State of Madras [1954 - I L.L.J. 8], cited before us has been referred to by the Supreme Court in p. 644 of the aforesaid decision. The substantial question before the High Court was about the competency of the Government to refer a dispute concerning wages, to adjudication by a tribunal under S. 10 of the Act after there had been a fixation of minimum wages under the provisions of the Minimum Wages Act, 1948. In that case the reference made on 24 March 1952 was amended by the issue of a memo on 25 June 1952. It was however contended that the amendment was without jurisdiction. This contention was rejected on the following grounds :
'... The objection is one of form and is without substance. It would have been open to the Government to make under S. 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 in these proceedings.'
19. The Supreme Court did not dissent from this view but seems to have approved the view taken by the Madras High Court by observing an follows :
'... This decision would not assist the appellant because in the present case we are not considering the power of the Government to amend, or add to, a reference under S. 10(1). Our present decision is confined to the narrow question as to whether an order of reference made by the appropriate Government under S. 10(1) can be subsequently cancelled or superseded by it.'
20. The decision of the Punjab High Court in Textile Workers' Union v. State [1958 - II L.L.J. 103] cited by Sri V. L. Narasimha Murthi has been noticed by the Supreme Court. The conclusion reached therein is that the Government has full power to amend or vary or rescind an order passed and a notification issued under S. 10, industrial Disputes Act, 1947, even if it has the consequence of withdrawing particular dispute or disputes relating to particular industries from the reference already made to the industrial tribunal. The Supreme Court has in Ganguli case [1958 - II L.L.J. 634] (vide supra) expressly held this conclusion to be erroneous (vide p. 643). The earlier decision of the Supreme Court in Strawboard . v. Gutta Mill Workers' Union [1953 - I L.L.J. 186] cited by the learned advocate for the petitioner has no relevance. It laid down that the extension of time after the expiry of the time- limit originally fixed cannot validate the award passed by the tribunal as S. 21 of the Uttar Pradesh General Clauses Act did not confer any power on the State Government to amend the original order retrospectively.
21. The decision of the Assam High Court in N. N. Chakravarti v. State [A.I.R. 1960 Assam 11] dealt with the scope of Sub-secs. (4) and (5) of S. 10 of the Act. We are in respectful agreement with the view expressed by their lordships that while Sub-Section (4) limits the power of the appropriate Court or tribunal to confine its adjudication to the points specified in the order of reference and to matters incidental to those points, Sub-Section (5) confers jurisdiction on the appropriate Government to include in the reference any other establishment, group or class of establishments of a similar nature as may be interested in or affected by any such dispute. In dealing with S. 21 of the General Clauses Act, their lordships recognized that it embodied a rule of construction and that there was no bar to adopt that rule in so far as it was not likely to defeat the purpose of the Act. The logical conclusion of this view to that any amendment, addition or modification which the State Government can make subsequent to the order of reference cannot go to the length of superseding or withdrawing the original reference, as such an act would definitely defeat the purpose of the Act. The Andhra Pradesh High Court in Daily News Press v. Its workers [1960 - I L.L.J. 599] had to deal with a situation where an earlier notification of the State Government referring an industrial dispute relating to 'termination of service' of certain workers was sought to be amended by a subsequent notification by substituting the word 'suspension' for 'termination.' it was held that the latter notification only corrected an obvious terminological error and did not withdraw, cancel, revoke or supersede the earlier reference.
22. The decision of a single Judge of the Madras High Court in Thambi Motor Service v. Presiding Officer [1960 - II L.L.J. 563] pressed upon our attention for the petitioner, was confirmed in appeal before a Division Bench of that High Court in Workers v. Thambi Motor Service [1963 - I L.L.J. 497]. There the first reference required the tribunal to enquire only into the quantum of retrenchment compensation to which the retrenched workers were entitled, while the subsequent reference required the tribunal to go into the question whether the retrenchment was justified and if so, to what relief the workers were entitled. The second reference was construed as modifying the first reference in such a way an to supersede it altogether. The single Judge interpreted the Supreme Court decision as laying down that the State Government had no power to amend, modify or cancel a reference. The Division Bench decision rendered by Ramachandra Ayyar, C.J., however, laid down that
'while the Government acting under S. 10 of the Industrial Disputes Act, will have power to add to, or amplify a matter already referred thereunder for adjudication by the tribunal, it will have no power to supersede or cancel the old reference in such a way as to effect a withdrawal from the tribunal of a dispute validly referred to it.'
23. The decision of the Calcutta High Court in Kesoram Cotton Mills v. Second Labour Court [1963 - I L.L.J. 169] is altogether on a different point. What the State Government did in that case was that after the reference had been made under S. 10(1) of the Act, another notification was issued in the form of a corrigendum adding the names of 11 workmen to one of the lists, purporting to act under Sub-section (5) of S. 10 of the Act. The subsequent notification was quashed on the ground that the workmen newly added did not constitute an establishment, group or class of establishment of the similar nature as the petitioner-company and that therefore the new names could not be added to the reference by the State Government.
24. The legal position that emerges from a careful review of all these decision is that a reference made by a State Government under S. 10(1) of the Act can be amended either by way of addition or modification so long an the amendment has not the effect of withdrawing or superseding the reference already made.
25. Sri V. L. Narasimha Murthi contended that second reference in the instant case has the effect of superseding the first reference and was therefore beyond the competence of the State Government. There is considerable force in this contention and we are inclined to uphold the same for the reasons to be stated presently. We have quoted above the relevant portions of the two references. The main point referred to the tribunal for adjudication under the first reference was whether the management was justified in dismissing 416 workmen specified in the schedule, from 26 March 1959. The second reference does not at all refer to dismissal of any workmen or groups of workmen on 26 March 1959. It requires the tribunal to adjudicate upon the question whether the management was justified in refusing work to 416 workmen; the question also relates to dismissal of 54 workmen and discharge of 41 workmen subsequent to 26 March 1959. The second reference does not specify the names of the workers who were dismissed or discharged. Though the reference mentions that a schedule was enclosed with the reference, it actually transpires that no such schedule was enclosed. Even assuming that the schedule annexed to the first reference could be read as part of the second reference, yet the difficulty would be about the names of workmen that are alleged to have been dismissed or discharged and the dates on which those orders were passed. The nature of the dispute is entirely changed. While the first reference required the tribunal to consider the question of justification of dismissal of 416 workmen, the second reference virtually superseded the first one and intimated the tribunal that the real point of dispute is not one of dismissal but of refusing work to 416 workmen; the question of dismissal relates to some 54 unspecified workmen and discharge of a batch of 41 unspecified workmen; the dates of the subsequent orders are not known. The points raised by the second notification termed as an amendment are different from those raised by the first reference and in effect supersede the earlier reference. This the State Government had no power to do.
26. Sri Nagesha Rao appearing for the respondent-workmen has tried to persuade us to hold that there is no supersession. According to him, the second notification amplified and specified the points involved in the first notification and that there is no replacement of the points of dispute by the second notification. Though this issue is purely a question of fact depending upon a construction of the two notifications, the learned advocate has cited certain decisions to derive support for his contention on the basis of analogy. He relied upon the decision in Mangharam & Co. v. K. B. Kher [1957 - I L.L.J. 76]. In that case, after making a reference as regards the dispute between the factory and its labour union for the adjudication of the industrial tribunal, the State Government issued subsequently a memorandum amending the reference by the addition of one more point of dispute for adjudication. It is not clear from the facts stated in the judgment what was the additional point for adjudication, and their lordships held by relying upon the decision of the Madras High Court in South India Estate Labour Relations Organization v. State of Madras [1954 - I L.L.J. 8], already referred to above, and came to the conclusion that if an additional reference could be made by the State Government under S. 10(4) of the Act there was no reason why an amendment of the original reference should not be allowed. It does not appear that the amendment had the effect of superseding the earlier reference. To the same effect is the decision of the Rajasthan High Court in Jaipur Spinning and Weaving Mills, Ltd. v. State of Rajasthan and others [1961 - I L.L.J. 747], next relied upon by Sri Nagesha Rao. There too the State Government issued a subsequent notification amplifying an earlier reference. It was contended for the petitioner-mills that the state Government had no jurisdiction to make the fresh reference superseding the earlier reference. Negativing the contention their lordships held that the subsequent notification in question was not a notification superseding the previous reference but that it only amplified and supplemented the previous order of reference. During the course of the Judgment their lordships compared the points of dispute as noted in the two notifications and held on facts that the additional points mentioned in the subsequent notification were supplementary points relating to the same dispute between the labourers and the mills arising out of the agreement of 27 March 1958 and that the notification only amplified the substance of the earlier notification. Concluding the discussion, they observed that
'... In our opinion, what has to be seen actually is whether by the second reference the Government have violated any of the provisions of the Industrial Disputes Act or sought to nullify them. If not, the mere fact that shortly after the issue of first notification they have issued another notification supplementing some of the points in dispute would not make the reference invalid ...'
27. In the present case the tribunal had already recorded evidence. The nature of the dispute referred by the second notification is altogether different from the one which formed the subject-matter of the first reference.
28. Our attention was next drawn to a decision of the Bombay High Court in State of Maharashtra v. Anantha Krishnan [1961 - II L.L.J. 732]. There the facts were altogether different. The question before their lordships was about the legality of the second reference rectifying the mistake contained in the terms of the first reference. Sri Nagesha Rao contended that in the instant case also the second reference was intended to rectify the mistakes, contained in the first reference, committed by the Government who did not appear to have ascertained the nature of the real dispute between the parties. We have no material to uphold this contention. In the Bombay case the workmen had made a demand for reduction in the working hours and requested the Government to refer the matter for adjudication. The Government declined to refer the matter to the tribunal on the ground that it was for the management to fix the working hours within the limits laid down by the Bombay Shops and Establishments Act. Subsequently the company gave a notice proposing to increase the working hours and the labour union protested against the change. The company then requested the State Government to refer the matter for adjudication. The Government took a decision to make a reference but in the actual reference instead of a reference to the company's demand for adjudication being made, the order mentioned the demand made by the union for reduction of the working hours which had been rejected by the Government itself earlier. The Government subsequently issued another notification by substituting the company's demand in the terms referred to by the first notification. In the counter-affidavit filed on behalf of the State Government it was stated that the demand of the labour union had already been rejected, that the Government had neither reviewed nor reconsidered that decision and that a mistake had occurred in making the first reference. Their lordships concluded that the first order having been made though a mistake, the Government was competent to correct it. In the present case there is no proof of any mistake and hence the ratio of this decision does not apply. Sri Nagesha Rao drew our attention to Para. 10 of the award in which the tribunal discussed the contention whether the second order of reference was illegal and invalid and to the conclusion recorded by the tribunal that 'there was a mistake in referring to 416 workmen as dismissed.' The learned presiding officer observed :
'... The amended reference was intended to rectify this position. In that reference it is mentioned that the management refused work to 416 workmen specified in the schedule. There is a further mention that 54 workmen only were dismissed and 41 were discharged subsequently out of the abovesaid 416 workmen. In view of this amended reference, there is no point in flogging a dead horse. No finding is necessary in respect of issue 1.'
29. In our view the finding that there was a mistake in not supported by any evidence before the tribunal and our attention also has not been drawn to any such evidence having been placed before the tribunal. The tribunal has not addressed itself to the question of the effect of the second reference, and the first issue was shelved in by observing that 'there was no point in flogging a dead horse.' We are clearly of opinion that the second reference made after the tribunal had recorded evidence in part of the first reference materially interfered with the proceedings and replaced the first reference by altering the issues in material particulars. No assistance is available to the respondent from the decision of the Madras High Court in Workers of Thambi Motor Service, Mettupalayam (Nilgiris Motor Workers' Union) v. Thambi Motor Service, Salem, and another [1963 - I L.L.J. 497] to which we have already referred.
30. Lastly Sri Nagesha Rao contended that the change, if any, effected by the second reference was of a technical nature and that the Court should not be astute to look to formal defects. In support of this argument he drew our attention to the following passage from the judgment of the Supreme Court in State of Madras v. C. P. Sarathi [1953 - I L.L.J. 174].
'... In view of the increasing of modern life and the interdependence of the various sectors of a planned national economy, it is obviously in the interest of the public that labour disputes should be peacefully and quickly settled within the framework of the Act rather than by resort to methods of direct action which are only too well calculated to disturb public peace and order and diminish production in the country, and Courts should not be astute to discover formal defects and technical flaws to overthrow such settlements.'
31. In that case the State Government had launched a prosecution against the respondent for his failure to implement certain terms of the award made by the industrial tribunal, Madras. The respondent contended before the Magistrate that he had no jurisdiction to proceed with the enquiry as the award on which the prosecution had been based was void and ultra vires. The Magistrate declined to deal with the objection as a preliminary point and respondent 1 applied to the High Court under Art. 226 of the Constitution for a writ of certiorari to quash the proceeding pending before the Magistrate. The High Court upheld the contention of the respondent and quashed the proceedings. In appeal, their lordships of the Supreme Court examined the facts of the case, the scope of S. 10 of the Act and the rules made thereunder providing for the tribunal to call for statements of the parties in regard to their respective contentions. Their lordships noted that there was no procedure provided in the Act enabling the Government to call for such statements to ascertain the particulars of dispute from the parties before referring them to a tribunal under S. 10(1) of the Act. Their lordships therefore laid down that a reference under S. 10(1)(c) was not incompetent merely because it had been made in general terms and the disputes had not been particularized. It is in the context of these facts and the legal position that arose for consideration that the observations in the quoted above passage relied upon by Sri Nagesha Rao come to be made. These observations cannot be severed from the context and baldly applied to another set of facts.
32. For the reasons aforesaid we are of the opinion that the second reference had the effect of superseding the first reference and was therefore invalid. The award passed by the tribunal would be one without jurisdiction and has to be and is accordingly quashed. No order as to costs.