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Rashtriya Chini Mill Mazdoor Union and ors. Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc Writ Nos. 2909 and 2910 of 1962
Judge
Reported inAIR1967All36; (1968)IILLJ26All
ActsConstitution of India - Articles 14 and 226; Uttar Pradesh Industrial Disputes Act, 1947 - Sections 3 and 4K
AppellantRashtriya Chini Mill Mazdoor Union and ors.
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateK.N. Singh, Adv.
Respondent AdvocateStanding Counsel
DispositionPetitions dismissed
Excerpt:
.....226 of constitution of india - petition filed by sugar mill employees for mandamus to compel state government to refer dispute for adjudication under u. p. industrial disputes act, 1947 - employers too should be made party. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the..........respondent in both of them is the state of uttar pradesh in writ petition no. 2909 of 1962 shankar sugar mills ltd., deoria. is the second respondent while in writ petition no. 2910 of 1962 the punjab sugar mills co ltd.. gorakhpur is the second respondent. these petitions pray that the notification dated 1-5-1962 of the state government be quashed and that the state government be directed to refer the industrial dispute for adjudication.2. the impugned notification dated 1-5-62 purports to have been passed by the state government in exercise of the powers conferred by section 3 of the u. p. industrial disputes act, 1947 (u. p. act no. xxviii of 1947) it directs 69 named vacuum pan sugar factories to pay to their employees amounts, by way of bonus for the crushing season 1960-61, shown.....
Judgment:
ORDER

Satish Chandra, J.

1. These two writ petitions are under Article 220 of the Constitution The facts of both are common and they raise identical questions Same persons have filed both these petitions. The first respondent in both of them is the State of Uttar Pradesh In Writ Petition No. 2909 of 1962 Shankar Sugar Mills Ltd., Deoria. is the second respondent while in Writ Petition No. 2910 of 1962 the Punjab Sugar Mills Co Ltd.. Gorakhpur is the second respondent. These petitions pray that the notification dated 1-5-1962 of the State Government be quashed and that the State Government be directed to refer the industrial dispute for adjudication.

2. The impugned notification dated 1-5-62 purports to have been passed by the State Government in exercise of the powers conferred by Section 3 of the U. P. Industrial Disputes Act, 1947 (U. P. Act No. XXVIII of 1947) it directs 69 named vacuum pan sugar factories to pay to their employees amounts, by way of bonus for the crushing season 1960-61, shown against their names, within one month of the publication of the order. The Punjab Sugar Mills Co., Ltd., Gorakhpur is mentioned at serial No. 63 of the order and the amount of bonus to be paid by it is shown to be nil. The Shankar Sugar Mills Ltd., Deoria is at serial No. 64 and it has also to pay nil as bonus Several other sugar mills have also been directed to pay nil as bonus whereas a large number of others have been directed to pay various amounts mentioned against their names as bonus

3. For the petitioners the first point urge-ed was that Section 3 (b) of the U. P. Industrial Disputes Act which is the source of power for making the impugned notification is void as it infringes Article 14 of the Constitution. This point has been negatived by me in Writ Petn. No. 2357 of 1959, Mahalakshmi Sugar Mills Co. Ltd., New Delhi v. State of Uttar Pradesh. Dt 13-7-1965 (All).

4. The learned counsel next urged that an industrial dispute with respect to the payment of bonus being in existence or at least apprehended, the State Government ought to have referred it for adjudication under Section 4-K of the U. P. Industrial Disputes Act, and since that has not been done a mandamus should go compelling it to make the reference Under the impugned notification the question of bonus for the whole sugar Industry of the State of Uttar Pradesh was settled. There are 69 sugar factories in the State which are vitally affected by the impugned notification. If the petitioners wanted seriously to raise this question, they should have impleaded those sugar factories as parties in these petitions. In their absence the question whether the State Government was justified in not referring this dispute to the Industrial Tribunal for adjudication cannot effectively be decided. The prayer for compelling the State Government to refer this dispute for adjudication cannot also be granted in the absence of all the interested sugar factories

5. Learned counsel for the petitioners then urged that a mandamus should issue to the State Government to refer the dispute between the petitioners and the sugar mills which are respondent No. 2 for adjudication. The petitions do not contain sufficient material on this point. There is no averment that any dispute really arose between the petitioners and the respondent sugar mills, whether the petitioners made any demand for payment of any particular sum as bonus from the respondent sugar mills and that the same was refused. There is no averment whether any conciliation proceedings were taken which are essential preliminaries to the making of the reference for adjudication. There is again no averment in the petitions or their supporting affidavits whether the petitioners asked the State Government to refer the industrial dispute with the respondent sugar mills for adjudication. The learned counsel sought permission to file a supplementary rejoinder affidavit giving certain facts relevant for this point He wanted a further opportunity to amend the petitions to bring in some more facts. The learned counsel appearing for the respondents has vehemently opposed this request. The petitions were filed in 1962. Making of a demand and its refusal by the concerned authority is an essential prerequisite to the issue of a mandamus. The petitions themselves should have contained facts necessary to sustain this contention. In my opinion the objection is sound and deserves to be sustained. I am not inclined to accept the supplementary rejoinder affidavit or to adjourn the hearing at this stage to enable the learned counsel to further amend the petitions.

6. Learned counsel for the petitioners next urged that the impugned notification has been made in the colourable exercise of power under Section 3 (b) of the U. P. Industrial Disputes Act and as such void This point is based upon the averments contained in paragraphs Nos. 3d and 37 of the petitions which are as follows :

36. 'That there was no emergency at any of the material dates of the constitution of the said Bonus Committee, or at the time of issue of the impugned notification to justify the bypassing of the normal procedure of adjudication of Bonus by the State Industrial Tribunal.

37. That the State Government has made it an annual affair to issue notifications and orders for distribution of Bonus to workmen in Sugar Mills in U. P. without there being the existence of the basic facts and circumstances and an acute emergency to justify the determination of bonus for 1960-61 in the manner in which it has been done.'

In the counter-affidavit filed on behalf of the State Government all these averments have been denied. It is averred that the impugned notification was issued after a thorough consideration of all the relevant materials and facts by the Government. The impugned notification recites that

'in the opinion of the State Government it is necessary to enforce the recommendations of the said Committee for securing the public convenience and the maintenance of public order and supplies and services essential to the life of the community and for maintaining employment.'

These are the facts which constitute the condition precedent to the exercise of power under Section 3 of the Act. Under Section 3 the requisite order can be passed if in the opinion of the State Government it is necessary so to do to achieve the various purposes mentioned in the aforesaid recital. The subjective satisfaction of the State Government is the foundation for the accrual of the power. If the State Government has formed the requisite opinion it is enough for the Courts. The grounds upon which the opinion is based are immaterial. The Court cannot look into them and adjudge whether there was sufficient material before the State Government on which it formed the opinion--See Hubli Electricity Co. v. Province of Bombay. and State of Madras v. C. P. Sarathy. : (1953)ILLJ174SC .

7. The value and efficacy of recitals as to conditions precedent to the exercise of the statutory power has been adverted to by the Privy Council in Emperor v. Sibnath Banerjee, AIR 1946 PC 156 (on p. 161). The view of the Privy Council has been affirmed by the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal U. P. : (1961)IILLJ419SC . The Supreme Court has ruled that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it. Even where the recital is not there on the face of the order, the order will not become illegal ab initio, but only a further burden is thrown on the authority passing the order to satisfy the Court by other means that the conditions precedent were complied with. The Supreme Court held that it is most desirable that the order should recite the satisfaction of those conditions because in that event the Court will presume the regularity of the order, and that the conditions were satisfied, and the burden would be thrown on the person challenging the order to show that what is re cited is not correct.

8. This is not a case where the petitioners' case is, that the statutory authority did not apply its mind at all to the situation or that ii did not in fact form the requisite opinion. The averments contained in the petitions are that there was in fact no emergency at the relevant time i.e., to say that the factors which constitute the conditions precedent such as securing of the public convenience, maintenance of public order and supplies and services essential to the life of the community, or for maintaining employment etc., were not in existence. This is what is supposed to be conveyed when the petitions state that there was no emergency or that there was no acute emergency at the relevant time. These averments are capable of being proved objectively by relevant material. The cases where the petitioner has to prove the state of mind of the statutory authority are hence distinguishable and not applicable. The submission on behalf of the petitioners that the burden on the petitioners should be deemed to have been effectively discharged by their establishing their allegations to the point of probability, and not to the point of proof to the hilt cannot be sustained.

9. It is not necessary that even the kind of allegations that have been made in the present case must be proved by direct evidence. They can be proved by placing such material from which a reasonable and inescapable inference in favour of the petitioners' averments can be established. In the present case no material has been produced to support the allegation that the basic facts and circumstances were not in existence or that there was no emergency at the material time. The allegations are themselves vague and unsatisfactory. In view of the fact that the impugned order sought to settle a dispute with respect to the entire sugar industry of the State, which is for the benefit of the community at large, the petitioners had an onerous task. They have placed practically no material on the record and have made no attempt to discharge the burden which undoubtedly lay upon them to sustain the plea that the Impugned notification has been made in the colourable exercise of power.

10. The learned counsel for the petitioners relied upon certain observations of the Supreme Court in the case of State of Uttar Pradesh v. Basti Sugar Mills Co Ltd. : 1961CriLJ570 . Prior to 1957 the power to refer an industrial dispute for adjudication under Section 3 (d) and the power to pass an order under Section 3 (b) were subject to the same conditions precedent. It was urged before the Supreme Court that the two powers overlap enabling the State Government to discriminate by referring some cases for adjudication to an Industrial Tribunal under Clause (d), and in others by passing an executive order itself under Clause (b). The Supreme Court repelled this submission by interpreting the provisions of Section 3 Clause (b) to apply only in the case of an acute emergency. It seems that on the basis of those observations the present petitions state that there was no acute emergency at the relevant time. But in 1957 the provisions of the Industrial Disputes Act were materially and substantially altered by the U. P. Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1 of 1957 The power of referring a dispute for adjudication was taken away from Section 3 of the Industrial Disputes Act and a new Section 4-K was incorporated in the Act; where under an industrial dispute could be referred to a Labour Court or a Tribunal, irrespective of the existence of the various conditions precedent mentioned in Section 3. The power to pass an order under Section 3 (b) and the power to refer a dispute for adjudication were not alternative. In Mahalakshmi Sugar Mills case. W P No. 2357 of 1959, D/- 13-7-1965 (All), cited above, I have held that the fields in which the two powers operate are different After 1957 it is no longer necessary that an acute emergency should exist before the State Government can act under Section 3 (b) of the Act.

11. Learned counsel next urged that the impugned order is bad as it violates the principles of natural justice. It is urged that before passing this order the State Government did not afford the petitioners any opportunity of hearing. It has not been shown to me that the function under Section 3 (b) of the U. P. Industrial Disputes Act is a judicial or a quasi judicial function. Apparently it is an administrative function. In administrative matters the principles of natural justice are not attracted. The statute does not provide for any right of hearing before such an order is passed. This point has not appealed to me.

12. In the end the learned counsel for the petitioners contended that the impugned order violates the proviso to Section 3 (b) of the U. P. Industrial Disputes Act Clause (b) of Section 3 provides for an order requiring employers, workmen or both to observe for such period as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order. The proviso relied upon says that no order made under Clause (b) shall require an employer to observe terms and conditions of employment less favourable to the workmen than those which were applicable to them at any time within three months preceding the date of the order. The proviso affords a guarantee to the workmen against change in the terms of conditions of employment to their disadvantage. It is urged for the petitioners that in the immediately preceding year i.e. 1959-60 a substantial amount was made payable as bonus by the Respondent Company and that that amount of bonus was a condition of service. In the current year 1960-61 no amount was directed to be paid as bonus. This variation in the quantum of bonus changed the conditions of employment to the disadvantage of the workman and as such the impugned order was bad. The payment of bonus, no doubt, is a term or condition of employment. Admittedly, payment of bonus is an yearly feature It is payable from year to year. The exact amount that can be paid in any particular year, even according to the case of the petitioners, varies according to various factors which have to be considered before the amount payable can be determined. The exact amount being thus a fluctuating factor the specific amount cannot be a condition of employment. So long as the payment of bonus is not sought to be taken away by an order under Section 3 (b) the proviso is not violated. The change in the quantum of bonus payable from year to year not by itself being a condition of service, such a change does not infringe the proviso

13. No other point was pressed.

14. In the result, the petitions fail andare dismissed with costs.


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