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Prakash Ice Factory Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1959)IILLJ695All
AppellantPrakash Ice Factory
RespondentState of Uttar Pradesh and ors.
Excerpt:
- - in the absence of pronouncement in open court it failed to be an award on which action could be taken under section 6 of the act, the next objection by him is that the tribunal misdirected itself in deciding the second matter in dispute first and then alone holding, having found that the minimum wages ought to be rs. the learned standing counsel, too, has not controverted this proposition though he has further urged that the failure to pronounce a judgment in open court is at best an irregularity, it does not render the document invalid......arisen between the petitioner-factory on the one hand, and respondents 4 to 13, on the other, the state government by an order dated 10 february 1956 passed under sections 3, 4 and 8 of the uttar pradesh industrial disputes act, 1947, referred the following matters of dispute for adjudication to the industrial tribunal at allahabad :-matters of dispute(1) whether the employers of the two concerns mentioned in the annexure a have wrongfully and/or unjustifiably reduced wages of their workmen mentioned in annexure b from january 1955 if so, to what relief are the workmen entitled ?(2) what should be the minimum wage of workmen employed in the two concerns mentioned in annexure a ?2. a similar dispute also arose between the lakshmi ice factory, lucknow, and its workmen which likewise was.....
Judgment:

J.K. Tandon, J.

1. A dispute having arisen between the petitioner-factory on the one hand, and respondents 4 to 13, on the other, the State Government by an order dated 10 February 1956 passed under Sections 3, 4 and 8 of the Uttar Pradesh Industrial Disputes Act, 1947, referred the following matters of dispute for adjudication to the Industrial Tribunal at Allahabad :-

MATTERS OF DISPUTE

(1) Whether the employers of the two concerns mentioned in the annexure A have wrongfully and/or unjustifiably reduced wages of their workmen mentioned in annexure B from January 1955 If so, to what relief are the workmen entitled ?

(2) What should be the minimum wage of workmen employed in the two concerns mentioned in annexure A ?

2. A similar dispute also arose between the Lakshmi Ice Factory, Lucknow, and its workmen which likewise was referred to the same tribunal by an order of even date by the State Government. Civil Miscellaneous Application (O.J.) No. 15 of 1957, which has been heard along with the present petition, relates to the dispute between the Lakshmi Ice Factory and its workmen. As the points involved in both the petitions are identical, they have been heard together and we propose to dispose them of by this single judgment.

3. The dispute arose, as appears from a copy of the award of the tribunal (annexure B), because the factory had reduced the wages of its unskilled workmen. On behalf of the workmen exception was taken to the above act of the management. They further claimed that their minimum wages should not be below a certain amount asked by them. It was in this context that the two matters of dispute were referred to the tribunal. It is, however, not necessary for the purpose of the present case to mention them in further detail.

4. The tribunal admittedly received written statement of the parties, also gave them an opportunity of adducing evidence and arguing the case before it and ultimately appointed 9 October 1956, for pronouncing the award. The petitioners claim, and this fact is not disputed by the respondents also, that the tribunal did not pronounce the award on the above date. According to the former no information thereafter was given by the tribunal of the date appointed by it for pronouncing the award but it submitted it direct to the State Government obviously for taking action under Section 6 of the Uttar Pradesh Industrial Disputes Act. This was done, as appears from the affidavits produced by the two parties, on 8 November 1956. On this date the registrar of the tribunal informed the petitioner that an award had been sent to the State Government. Admittedly it was not pronounced in the manner laid down in standing order 36 of the standing orders prepared by the State Industrial Tribunal by virtue of its power in Para. 9 of the notification No. 615 (LL)/XVIII-7 (LL)-51, dated 15 March 1951, nor as required by Sub-para, (7) of Para. 9 of the Government order dated 14 July 1954, promulgated under Sections 3, 6A and 8 of the Uttar Pradesh Industrial Disputes Act, 1947. These two provisions may, therefore, be quoted for appreciating the dispute more fully :

36. Judgment shall be pronounced in open Court either immediately after the close of the arguments or on a subsequent date of which previous notice shall be given to the parties. It shall then be signed and dated by the tribunal. But judgment may be dictated to the steno in open Court and it may be signed later within eight days, but the date of pronouncing it shall be the date on which it was dictated to the steno in open Court.

5. The next standing order 37 is partly relevant and is thus:

37. The tribunal may correct any clerical or arithmetical mistake or error, arising from accidental slip or omission in the proceedings.

Paragraph 9 of the Government order of 14 July 1954 makes provision for the procedure to be adopted by the tribunal in bearing, etc., of the industrial disputes referred to it. Sub-paragraph (7) of Para. 9 requires

that the decision of the tribunal shall be in writing and shall be pronounced in open Court and dated and signed by the member or members of the tribunal, as the case may be, at the time of pronouncing it.

6. It will be noticed that both standing order 36 and Sub-para. (7) of Para. 9 of the order of 14 July 1954 insist that the judgment of the tribunal shall be pronounced in open Court where it shall be dated and signed. According to either provision, therefore, the pronouncing of the order in open Court is a necessary ingredient.

7. The petitioner, relying on the above two provisions, has urged that the award, which the tribunal submitted on the matters in dispute referred to it and which the State Government subsequently enforced under Section 6 of the Uttar Pradesh Industrial Disputes Act, not having been pronounced in open Court, was not an award in fact. In the absence of pronouncement in open Court it failed to be an award on which action could be taken under Section 6 of the Act, The next objection by him is that the tribunal misdirected itself in deciding the second matter in dispute first and then alone holding, having found that the minimum wages ought to be Rs. 48, that the wages had been wrongfully reduced.

8. Learned Counsel for the petitioner has not addressed us on the second point. Under the circumstances we do not consider ourselves called upon to record a finding on it.

9. On the first question his line of argument is that Sub-para. (7) of Para. 9 of the Government order of 14 July 1954, and likewise standing order 36 of the State Industrial Tribunal Standing Orders requires that the judgment of the tribunal shall be pronounced in open Court and it shall then be signed and dated by the tribunal. A judgment has therefore, according to him, to be pronounced first and after it has been pronounced it has to be signed and dated by the tribunal. The pronouncing of the judgment in open Court is an essential part of the proceedings which ultimately result in the judgment which is known as an award. In other words, he claims that there is no legal document, which can be said to be a judgment or an award, if it has not been pronounced in open Court: It remains a memorandum prepared by the tribunal containing its conclusions but it does not acquire the legal status of a judgment as contemplated by the above provisions.

10. On the language of the two provisions we find that a duty has been cast on the tribunal not only that the award or judgment prepared by it shall be in writing but that before it is signed and dated by the tribunal it shall be pronounced in open Court. Both the provisions have used the expression ' shall be in writing and shall be pronounced in open Court,' It cannot, therefore, be doubted that the legislature wanted the tribunal to pronounce the judgment which might be prepared by it in open Court. The learned standing counsel, too, has not controverted this proposition though he has further urged that the failure to pronounce a judgment in open Court is at best an irregularity, it does not render the document invalid. To put it differently, he would claim that these provisions are directory in nature but place no obligation on the tribunal that it must, in order that its judgment is a judgment, pronounce it in open Court.

11. We have carefully considered the respective contentions put forward by the learned Counsel on either side and we are unable to discover anything either in Sub-para. (7) of Para. 9 or for the matter of that in standing order 36, to convince that the provision in them for the pronouncing of a judgment in open Court is directory. On the contrary, both these provisions lay down how the decision of the tribunal shall be made. They require that it shall be in writing, that it shall be pronounced in open Court and that it shall be signed and dated. Obviously it will not be correct to say that the decision of the tribunal can be oral or that it need not be signed or dated. If, however, the contention of the learned standing counsel is accepted, the requirement about its being in writing or that it shall be signed and dated will also be reduced to the position of a directory provision. In appropriate cases an oral decision should be acceptable, because the provision is directory and does not render the decision to be invalid for non-compliance of the above provisions. In our opinion, such could never be the intention of the legislature. The word ' shall' used in these provisions governs not only the requirements about pronouncement in open Court but remaining three requirements also, viz., that it shall be in writing, that it shall be signed and that it shall be dated. To our mind, the duty cast by these two provisions is mandatory and not directory. A judgment has to be pronounced by the tribunal in open Court, it must be in writing and must be dated and signed. All the four conditions are necessary for the due observance of the provisions contained in these paragraphs.

12. The effect of non-pronouncement of the judgment in open Court has next to be considered. On behalf of the petitioners it is said that pronouncement of a judgment is not a mere formality with no legal consequences provided by law but is an essential step which must be duly observed, because it is only thus that a legal sanctity is achieved by the document known as judgment and by which rights of contesting parties are finally determined. The learned standing counsel, on the other hand, while admitting that pronouncement is a part of the legal procedure by which a judgment becomes final, has urged that in case a judgment is not pronounced in open Court an irregularity alone takes place. A judgment in a judicial proceeding is a final determination of the rights of the parties to the dispute. It not only binds the parties but even the tribunal, which makes the judgment, is in certain respects bound by it. Once a judgment has been pronounced, signed and dated, the tribunal too loses the authority to alter or modify it except accidental omissions or clerical errors, which are not considered essential to the decision, can be corrected by the tribunal. But so far as the main dispute is concerned, it too, has no power to alter or modify it. This is based on a very salutary principle of administration of justice which is that a finality should attach to decisions of Courts and tribunals. Once, therefore, a judgment has been pronounced in open Court and also signed and dated, a legal sanctity is attached to it and it is this legal sanctity which in the ultimate analysis governs the rights of the parties in relation to the subject-matter. The legal sanctity is acquired by pronouncement and although it may appear to be a minor detail but, having regard to the legal consequences which follow, it is an essential part of the process of determination of the dispute. It is with the pronouncement of the judgment in open Court that the decision of the tribunal, which the parties to the dispute have a right to know, is proclaimed. Till then the tribunal is free to alter it or modify it; but once it has been pronounced, on the one hand the power of the tribunal comes to an end and, on the other, subject to any right of appeal. etc., which might belong to the parties, it finally determines the rights of the parties. Thus pronouncement in open Court is an essential ingredient and it is thus only that the document becomes a judgment. It is incomplete as a judgment until it is pronounced.

13. The learned standing counsel referred us to the provisions in Section 14 of the Indian Arbitration Act, according to which pronouncement of an award is not necessary in the same way as a judgment of a Court or tribunal. It may be true that Section 14 does not * require the award to be pronounced in that manner, but proceedings under the Arbitration Act are essentially different from proceedings before a tribunal or Court. Moreover, Section 13 of the Uttar Pradesh Industrial Disputes Act, 1947, in accordance with which the industrial dispute was referred in the present case for adjudication and was also decided by the tribunal, has expressly provided that nothing in the Indian Arbitration Act shall apply to proceedings under that Act. In view of the clear provision against the application of the Arbitration Act to the proceedings under the Industrial Disputes Act. We are unable to agree with the learned standing counsel that any help or assistance can be taken from Section 14 of the Arbitration Act in construing the provision of the Uttar Pradesh Industrial Disputes Act or of any order made thereunder.

14. Thus, having held that pronouncement of the judgment in open Court was an essential step in the absence of which the decision of the tribunal did not amount to a judgment or award within the meaning of the provisions of the Government order of 14 July 1954, or of the standing orders framed thereunder, the further question will now arise how far the objection raised by the petitioner can be successfully urged. There has been an order subsequently by the State Government under Section 6 of the Uttar Pradesh Industrial Disputes Act, 1947. By this order the State Government purported to enforce the judgment or award, by whatever name one may call it, of the tribunal. This Sub-section (1) of Section 6 is to the effect that

when an authority to which an industrial dispute has been referred for adjudication has completed its inquiry it shall, within such time as may be specified, submit its award to the State Government.

Sub-section (2) of the same section also gives power to the State Government to enforce for such period, as it may specify, all or any of the decisions in the award, or either of its own motion or on application made to it, remit the award for reconsideration. Where the State Government remits an award for reconsideration, a duty is cast on the tribunal to submit a fresh award for reconsideration. The reconsideration award has then to be enforced.

15. Two things are material in this connexion. One is that the tribunal is charged with the duty to submit an award to the State Government which it has to do after the inquiry is completed, and the second thing is that the award has to be enforced by the State Government. But the parties have a right of representation to the State Government before their award is enforced to enable the State Government to decide whether it shall enforce it or remit it for reconsideration or shall enforce it in whole or in part only. In connexion with the second, the learned standing counsel strongly relied on the fact that on 8 November 1956, when the tribunal forwarded its findings to the State Government, the registrar of the tribunal sent information to the petitioners who were thus apprised of the submission of the decision and were placed in a position also to urge their representation before the State Government. The above circumstance may no doubt, help the contention of the learned Counsel and it is were (sic) the only fact, namely, that an opportunity had been given to the petitioner to represent against the decision of the tribunal, his contention might have had sufficient force. But the decision in our opinion turns on an entirely different point. The right of representation to a party to the decision belongs to him to represent against the judgment or award of the tribunal. If the document, which is claimed to be a judgment or an award of the tribunal, has not acquired that legal status, no amount of opportunity to represent against that document will confer on the document the status which it does not possess. It must first be a judgment or an award, but if it lacks in that necessary qualification, the party aggrieved will not be deprived of its right to challenge the decision otherwise.

16. What we have, therefore, to ascertain is whether the notification by the State Government under Section 6 has given to the document the legal sanctity not possessed by it otherwise or has excluded the petitioner from impugning the order itself made under Section 6. The power to make an order under Section 6 presupposes the existence of an award by the tribunal concerned and it is only after an award, as such, has been submitted to the State Government that its jurisdiction commences to make an order under Section 6. So long as there is no award, the jurisdiction does not arise. In the present case, as already held by us, there was no legal award by the tribunal. The power to issue the notification under Section 6 also did not arise. The mere fact that such a notification has been Issued by the State Government will not give any legal effect to the notification, even though it was purported to have been made in exercise of the power under Section 6, when that power had indeed not arisen.

17. We are, therefore, unable to accept the contention of the learned standing counsel that the notification under Section 6 has in any way prejudiced the right of the petitioners to impugn the decision of the tribunal in the present case.

18. The net result of the foregoing discussion is that notification No. 6583 (T.D)/XXXVI-A-186 (T.D)-56, dated 7 December 1956, published in the Uttar Pradesh Gazette 15 December 1956, enforcing the award of the tribunal dated 8 November 1956 is without jurisdiction, and therefore deserved to be quashed. We accordingly quash the said notification and direct respondent 3 not to give effect to it. Having regard to all the circumstances, we propose to make no order as to costs. This judgment will govern Civil Miscellaneous Application (0. J.) No. 15 of 1957 also.

19. We are informed that in each of the two eases a sum of one thousand rupees has been deposited as security. That amount, if not already refunded, shall be refunded.


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