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The Workmen Under the Director of Health Services Vs. the Director of Health Services and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in38(1972)CLT1146; (1973)ILLJ512Ori
AppellantThe Workmen Under the Director of Health Services
RespondentThe Director of Health Services and ors.
Cases ReferredIndia Ltd. v. The Workmen
Excerpt:
.....in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - the award was published in the state gazette on 15-7-69. on 13th of august, 1969, in exercise of powers vested in them under section 17a(i) of the industrial disputes act, 1947 (hereinafter referred to as the act) the state government notified that the award shall not be enforceable and made an order under sub-section (2) of section 17a of the act on 24-9-1969. the state government, however, failed to lay the award together with a copy of the order before the state legislature on the first available opportunity......of the industrial tribunal, orissa, dated 30th of june, 1969.2. on 1st of december, 1967, the state government referred certain industrial dispute at the instance of the petitioners for adjudication by the industrial tribunal of orissa. after hearing parties, on 30th june, 1969, the tribunal gave its award. on 8th of july, 1969, the labour, employment and housing department of the government notified the award. the award was published in the state gazette on 15-7-69. on 13th of august, 1969, in exercise of powers vested in them under section 17a(i) of the industrial disputes act, 1947 (hereinafter referred to as the act) the state government notified that the award shall not be enforceable and made an order under sub-section (2) of section 17a of the act on 24-9-1969. the state.....
Judgment:

R.N. Misra, J.

1. This is an application under Articles 226 and 227 of the Constitution of India filed by the workmen working under the Director of Health Services, Orissa, asking for directions quashing the notification of the State Government dated 13-8-1969, and to issue a writ of mandamus directing the opposite parties to give effect to the award of the Industrial Tribunal, Orissa, dated 30th of June, 1969.

2. On 1st of December, 1967, the State Government referred certain industrial dispute at the instance of the petitioners for adjudication by the Industrial Tribunal of Orissa. After hearing parties, on 30th June, 1969, the Tribunal gave its award. On 8th of July, 1969, the Labour, Employment and Housing Department of the Government notified the award. The award was published in the State Gazette on 15-7-69. On 13th of August, 1969, in exercise of powers vested in them under Section 17A(I) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) the State Government notified that the award shall not be enforceable and made an order under Sub-section (2) of Section 17A of the Act on 24-9-1969. The State Government, however, failed to lay the award together with a copy of the order before the State Legislature on the first available opportunity. It is contended, therefore, that the award became operative and it was no more open to the State Government to exercise powers vested under Section 17A of the Act.

3. The State Government have contended in their counter-affidavit that their action is in accordance with law and the award has ceased to be operative and ultimately has been rejected. In the circumstances, the petitioners are not entitled to any relief in the writ petition.

4. The provisions of Section 17 and a part of Section 17A which are material for the present purpose may be extracted :

17. (1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government be published in such manner as the appropriate Government thinks fit.

(2) Subject to the provisions of Section 17A, the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.

17A. (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17.

Provided that-

(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party ; or

(b) * * *that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.

(2) Where any declaration has been made in relation to an award under the proviso to Sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.

5. Mr. Misra for the petitioners contended that the award having been notified on 8-7-1969 as required under Section 17(1) of the Act, became enforceable on the expiry of thirty days from the date of such publication as provided for under Section 17A(1) of the Act. The power vested in Government under the proviso to Section 17A(1) of the Act could be exercised at any time before the award became enforceable. By 13th of August, 1969, when Government declared that the award shall not become enforceable, more than thirty days had elapsed and as such it was no more open to the State Government to exercise the power under the statute for making the declaration under the proviso to Section 17A(1) of the Act. It is next contended that the order rejecting the award has not been placed before the Legislature on the first available opportunity and as such there has been violation of the statutory requirement. It has, therefore, to be held that the award is enforceable and a direction should accordingly be given to the opposite parties to give effect to the award.

6. Section 17(1) leaves the discretion to the State Government to decide the manner in which the award has to be published. In the instant case, it was the intention of the State Government that the publication should be in the official Gazette and, therefore, the award was sent to the Government press for publication. It is admitted that such publication has been made on 15th of July, 1969 (See paragraph 2 of the writ petition). Mr. Misra for the petitioners relies upon a decision of their Lordships of the Supreme Court in the case of Lloyds Bank Ltd. v. The Lloyds Bank Indian Staff Association and Ors. : AIR1956SC745 . Their Lordships In a brief decision indicated that the award in that case had been notified under Section 17 of the Act on 17-1-1950 and it was declared that the same would be binding from that day for a period of one year. Subsequently the award was notified in the State Gazette on 28-1-1950. When the dispute arose as to on which date the award was notified, their Lordships held that it was notified from the earlier date, namely, 17-1-1950. We do not find any assistance for Mr. Misra's contention in this case that the award must be taken to have been notified on 8-7-1969. If Government really intended that the award should be published only through the Gazette and for that purpose if the relevant department made out a notification mere notification cannot amount to publication under Section 17(1) of the Act. Therefore, when the order was made on 13-8-1969, in exercise of powers under the the proviso to Section 17A(1) of the Act, the award had not yet become enforceable because, thirty days had not yet elapsed after the date of publication under Section 17(1) of the Act.

7. In the case of Remington Rand oj India Ltd. v. The Workmen : (1967)IILLJ866SC . their Lordships came to hold that the provision as to the time in Section 17(1) is merely directory and and not mandatory. Section 17(1) makes it obligatory on the Government to publish the award. The limit of time has been fixed as showing that the publication of the award ought not to be held up. But the fixation of period of thirty days mentioned therein does not mean that the publication beyond that time will render the award invalid. The provisions of Sections 17 and 17A are supplemental to each other and, therefore, the same line of reasoning would be applicable to the time element indicated in the two sections.

8. The next contention of Mr. Misra is that though the State Government rejected the award of the Tribunal and published its decision in the Orissa Gazette (Extraordinary) dated 25th of September, 1969, as the same had not been placed before the Legislature on the first available opportunity, the provision of Sub-section (2) of Section 17A of the Act had not been complied with. The consequence of omission to place the order along with the award before the State Legislature on the first available opportunity has not been indicated by the statute. We are not in a position to hold that for a breach of the condition indicated therein the award which has been rejected can become operative again. In the instant case, the award has been laid before the Legislature along with the order of the Government rejecting it on 24-2-70. Some explanation has been furnished as to why the same could not be placed before that date though the Legislature had been sitting for sometime. In requiring that the award along with the order shall be laid before the Legislature on the first available opportunity, Parliament has been alive to the fact that for some reason or other, it may not be possible to place it at the next meeting of the Legislature. That is why the requirement has been indicated in terms of 'the first available opportunity'. In the facts of the case, we are not in a position to hold that the award along with the order of rejection thereof has not been placed before the Legislature on the first available opportunity, though if greater care had been taken, the same might have been laid before the State Legislature on an earlier date.

9. The writ application is devoid of merit and is accordingly dismissed. Parties shall bear their own costs.

K.B. Panda, J.

10. I agree.


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