H.R. Khanna, J.
(1) Question about the scope of sub-section (3) of Section 10 of the Industrial Disputes Act, 1947 (Act 14 of 1947), hereinafter referred to as the Act, relating to the prohibition of strike arises for determination in this petition under Articles 226 and 227 of the Constitution of India filed by Workmen of Edward Keventer (Successors) Private Ltd., represented by Keventers Employees Union (Registered) against Delhi Administration respondent No. 1 and Edward Keventer (Successors) Private Ltd., respondent No. 2 (hereinafter referred to as the respondent-company). The petitioners by this petition have prayed for the issuance of a writ for quashing the following order which was issued on August 18, 1966 :-
'NO.F.26(276)/66-Lab(ii):-Whereas it has been made to appear to the Chief Commissioner, Delhi, that the workmen employed by the Management of Edward Keventer (Successors) Private Ltd., Keventer Lane, Sardar Patel Road, New Delhi, have reported to strike in connection with certain dispute between the workmen and the said Management.
(2) And whereas the said dispute between the said management and the workmen has been referred to the Additional Industrial Tribunal, Delhi, on 18th August, 1966 for adjudication vide his Order No. F.26(276)/66- Lab(i).
(3) Now, thereforee, in exercise of the powers conferred by the sub-section (3) of Section 10 of the Industrial Disputes Act, 1947, read with the Government of India, Ministry of Home Affairs, Notification No. 2/2/61-Judl. Ii dated the 24th March, 1961, the Chief Commissioner, hereby prohibits the continuance of the said strike.'
(4) The petitioners are the employees of the respondent-company and are represented by their Union. It is the common case of the parties that the respondent-company was declared to be a Public Utility Service under section 2(n) of the Act. On November 20, 1963 a letter containing a number of demands was sent on behalf of the petitioners to the respondent-company for increasing dearness allowance and granting other monetary benefits to them. Negotiations were thereafter held between the parties and a settlement was arrived at on February 1, 1964, As a result of settlement, there was increase in the dearness allowance payable to the workmen and the increase was linked with the rise of the cost of living. A period of three years from the date of signing the memorandum of settlement' was fixed during which the settlement was to remain in operation. Clause 8 of the memorandum of settlement mentioned that the petitioners agreed nto to raise any demand involving financial repercussions during the currency of the agreement.
(5) On or about June 22, 1966 the petitioners submitted a charter of demands to the respondent-company. In that charter the petitioners infer alias raised the demands for the payment of bonus amounting to four months dearness allowance at the rate of Rs. 30.00 per workman and stopping of new recruitment. As no action was taken by the respondent-company on that charter, the petitioners gave the following notice on July 27, 1966 :-
'INaccordance to the decision taken by the General Body Meeting dated 23-7-66, I inform you about the strike. The Union is compelled to take this step because the Management did nto consider favorably about the demands made on 22-6-66 and even stopped talking in the matter. 15 days advance information is being given for the strike. In case the demands are nto made good by 11th August 1966, every worker of the Union shall strike the work from 2 P.M. on 11-8-1966. The demands are as follows:- I.Bonus for four months, 2. Dearness allowance at Rs. 30.00 each, 3. Regular Pay Scale, 4. Three days salary which was previously deducted, should be paid off, 5. New Recruitment should be stopped, 6. House rent at least Rs. 50.00 per worker should be paid who live outside, 7. Jhuggies should be constructed properly and each Jhuggi worker should be given 4 corrugated sheets, 8. Temporary hands should be employed and if at all they are engaged, they should be made permanent within three or the latest in six months time. (All new recruitments should be consulted with the Union first and if it is found that there is no suitable worker for the dairy work, only then an outsider should be engaged, 9. Those, who work for full 240 days, should be allowed full bonus and those who work from 100 days to 239 days should be allowed bonus proportionately, 10. There should be at least five bath-rooms for the workers. All Khokhas should be electrified, 11. None of the workers of any department or section should be harassed viz. marking him absent etc., 12. Temporary hands should be supplied with soap and uniform and those who are on duty and in the service of the Company, if ever fell ill and that sickness may prevail for more than five days, should be given free milk coupons. During accident period, he must get such free milk coupons always as is being allowed, 13. Those, who work on shops and on Boilers, should get free milk coupons. The others should also get free coupons for milk, 14. In case of accident while on duty, the worker should be paid for full period his wages whether the worker is a temporary or permanent and in such case the Company shall be responsible throughout, 15. There should be arrangement of urinals, canteens and rest-houses for the workers, 16. Those engaged in delivery work, should be supplied with uniform and rainy coats. Anyhow none of the workers should get less than Rs. 80.00 a month.'
(6) Copy of the above notice was sent to the Conciliation Officer and other authorities. The Conciliation Officer then intervened and started conciliation proceedings which took place on August 6, 1966. The conciliation proceedings were still pending on August 11, 1966 when the petitioners went on strike. On August 18, 1966 two orders were issued by the Delhi Administration, One was impugned order which has been reproduced above, while the other order was issued in exercise of the powers conferred by Sections 10(1)(d) and 12(5) of the Act referring the following dispute for adjudication to the Additional Industrial Tribunal :-
'WHETHERthe Workmen are entitled to bonus for the year ending 30th of June, 1966, and if so, what should be the quantum and other terms of payment ?'
(7) A letter was also addressed on behalf of the Delhi Administration to the petitioners and the respondent-company slating that the demand of the petitioners for scales of pay and dearness allowance was nto considered fit for reference to the Industrial Tribunal. The reason, which was given under Section 12(5) of the Act for nto referring the above dispule for adjudication, was mentioned in the letter as under :-
'SINCEthe agreement signed on 1st February, 1964 is in operation up to 1st February, 1967, the Union's demands involving financial commitments are untenable.'
(8) The petitioners filed the present petition on August 25, 1966 and the principal contention, which has been raised on their behalf, is that as the strike notice related to 16 demands and as only one of those demands has been referred for adjudication to the Tribunal, respondent No. 1 was nto justified in prohibiting the petitioners in continuing the strike.
(9) The petition has been resisted by the two respondents and the affidavits of Shri M. M. Kher, Under Secretary of the Delhi Administration, and Shri F. M. Kewalramani, Chief Controller of the respondent-company, have been filed in opposition to the petition.
(10) Before dealing with the principal contention advanced on behalf of the petitioners we may take note of a submission made by Mr. Maheshwari on their behalf. It is urged that respondent No. I was nto justified in nto referring all the matters which had been mentioned in the notice dated July 27, 1966, to the Industrial Tribunal for adjudication. In this respect we find that there had been a settlement between the parties on February 1, 1964 and according to the terms of that settlement, which was to remain is operation for a period of three years, the petitioners had agreed nto to raise any demand involving financial repercussions during the currency of the settlement. The Chief Commissioner declined to refer the dispute other than that relating to bonus for adjudication to the Tribunal, because, according to the affidavit of Shri M. M. Kher, the demands in that respect were considered to be frivolous and vexatious in view of the settlement of February 1, 1964. According to the proviso to sub-section (1) of Section 10 of the Act the appropriate Government can refuse to make a reference for adjudication if it considers the notice of strike to have been frivolously or vexatiously given, or if the Government otherwise considers it inexpedient to make the reference. As the material on record shows that the Chief Commissioner considered the demands other than for bonus contained in the strike notice to be frivolous and vexatious and as there was material before him on the basis of which he could have come to this conclusion, we find no ground to interfere with the order of respondent No. 1 declining to make areference for adjudication to the Industrial Tribunal in respect of demands other than bonus. A more fatal objection to above contention advanced on behalf of the petitioners is that the petitioners in the petition have nowhere prayed for the quashing of the order by which respondent no. I declined to refer for adjudication dispute other than that relating to bonus.
(11) The principal contention advanced on behalf of the petitioners relates to sub-section (3) of Section 10. The sub-section reads as under:-
'(3)Where an industrial dispute has been referred to a Board, 'Labour Court, Tribunal or National Tribunal' under this section, the appropriate Government may by order prohibit the continuance of any strike or lockout in connection with such dispute which may be in existence on the date of the reference.'
(12) Mr. Maheshwari on behalf of the petitioners contends that as the strike notice contained 16 demands and as only one of them has been referred for adjudication to the Tribunal and the remaining 15 demands have nto been referred, respondent No. 1 could nto prohibit the petitioners from continuing the strike. This contention has been controverter on behalf of the respondents and after giving the matter our earnest consideration we are of the view that so far as 15 of the demands are concerned which were nto referred for adjudication to the Industrial Tribunal, no order prohibiting the continuance of a strike could be made under sub-section (3) of Section 10 of the Act. Sub-section (3) of Section 10 has obviously been enacted to secure industrial peace and to ban the continuation of a strike or lock-out in connection with an industrial dispute which has been referred to a Board, Labour Court or Tribunal or National Tribunal and which was in existence on the' date of the reference. The controversy between the parties centres round the point as to what is the connotation of the words 'such dispute' in the concluding line of subsection (3). According to the learned counsel for the petitioners, these words refer only to those disputes which have been actually referred. If a particular dispute was in existence on the date of reference and has nto been referred to the authorities mentioned in the sub-section, the Government has no power, according to this submission, to prohibit strike about that dispute. As against that, the learned counsel for the respondents have contended that the words 'such dispute' do nto connote those disputes of which there is a mention in the earlier part of the subsection, namely, the dispute referred to a Board, Labour Court, Tribunal or National Tribunal, but cover every dispute which may be in existence on the date of the reference.
(13) In order to resolve the above controversy we shall have to refer to the provisions of sub-section (1) of Section 10 of the Act. According to that sub-section the appropriate Government may refer a dispute or a matter appearing to be connected with or relevant to the dispute to a Board, Court or Tribunal if the appropriate Government is of the opinion that any industrial dispute exists or is apprehended. The opening words of sub-section (1) in this respect read as under :-
'WHEREthe appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time,' (a) by order in writing,'
(14) It would follow from the above that a dispute or matter can be referred to the authority concerned by the appropriate Government where it is of opinion that an industrial dispute (1) exists or (2) is apprehended. The fact that a distinction is made between an existing dispute and an apprehended dispute goes to show that the existence of a dispute is nto necessarily a condition precedent to its reference to a Board, Court or Tribunal. A dispute or a matter appearing to be connected with or relevant to the dispute can be referred to the authority concerned both in cases where the dispute exists as well as in cases where the dispute does nto exist but is only to be apprehended.
(15) Keeping in view the above distinction between a dispute in existence and an apprehended dispute we may now refer to subsection (3) of Section 10 of the Act. The words 'such dispute' in that sub-section, in our opinion, indicate an industrial dispute mentioned in the earlier part namely an industrial dispute referred to the Board, Labour Court, Tribunal or National Tribunal under this Section. In order to invoke sub-section (3) of section 10, it would have also to be shown that such a dispute was in existence on the date of reference. Both these conditions would have to be satisfied before a case can be brought within the ambit of Sub-Section (3) of Section 10, namely, that the industrial dispute has been referred to the authority concerned under the Section and that the dispute was such as was in existence on the date of the reference. If either of the conditions is nto fulfillled, the case would nto be covered by sub-section (3). It would, thereforee, follow that if an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal but the dispute was nto in existence on the date of reference the subsection would nto apply. Likewise, the sub-section would nto apply if some dispute was in existence on the date of reference but the same has nto been referred to a Board, Labour Court, Tribunal or National Tribunal. As in the present case there was, besides the dispute about bonus, also a dispute between the parties about the other 15 demands contained in the charter of demands and as those 15 demands did nto form the subject matter of reference to the Industrial Tribunal, it is manifest that no order could be made under sub-section (3) of Section 10 of the Act prohibiting a strike about those demands.
(16) The learned counsel for the respondents have argued that the strike resorted to by the respondents was illegal. In this respect we find that according to sub-section (1) of Section 24 of the Act' a strike or lock-out shall be illegal if-
(I)it is commenced or declared in contravention of Section 22 or Section 23; or
(II)it is continued in contravention of an order made under sub-section (3) of Section 10 or sub-section (4-A) of Section 10-A.'
Clause (d) of sub-section (1) of Section 22 of the Act reads as under:-
'(1)No person employed in a public utility service shall go on strike in breach of contract- (D)during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.'
Clause (c) of Section 23 of the Act is to the following effect :-
'(23)No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lockout- (C)during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.'
(17) The material on record indicates that the conciliation proceedings were still pending on August Ii, 1966 when the petitioners went on strike. The strike was thus in contravention of Section 22 of the Act. It is further borne out by the mate-rial on record that the strike took place during a period in respect of which the settlement of February 1, 1964 was in operation and related to a matter covered by the settlement. As such, the strike was also in contravention of the provisions of Section 23 of the Act. Section 26 of the Act provides penalty for illegal strikes and lockouts.
(18) The learned counsel for the respondents urge that as the strike of the petitioners was illegal, respondent No. 1 was justified in prohibiting the continuation of that strike. This contention, in our opinion, is nto well-founded. The impugned order was made under sub-section (3) of Section 10 of the Act. The power conferred by that sub-section on the appropriate authority to make an order prohibiting the continuance of a strike or lockout relates only to matters which are mentioned in that sub-section and nto to matters nto covered by that sub-section. There is that sub-section. There is nothing in sub-section (3) which empowers the appropriate Government to prohibit a strike on the ground that it is illegal. The appropriate Government in the case of an. illegal- strike can take action under Section 26 of the Act without making an order for prohibiting such a strike under the above provision. The power to prohibit a strike under subsection (3) of Section 10 is nto co-extensive with the power to take penal action against a person resorting to illegal strike. Subsection (1) of Section 24 makes it clear that strike can also be illegal even. without there being an order under sub-section (3) of section 10. The fact that the Government can take penal action against persons resorting to illegal strike would nto clothe the Government with the power to prohibit such a strike under sub-section (3) of Section 10 of the Act, when such a course is nto warranted by the Statute.
(19) We, thereforee, are of the view that the impugned order can be sustained only to the extent relates to the prohibition of strike regarding the one dispute which has been referred for adjudication to the Industrial Tribunal. As, however, the strike related to 15 other matters which were nto referred for adjudication to the Industrial Tribunal, the impugned order prohibiting strike in respect of those 15 matters is nto warranted by sub-section (3) of Section 10 of the Act. The impugned order to that extent being illegal is quashed. It would, however, be open to the authorities concerned to take action if any of the petitioners resorts to illegal strike. The parties, in the circumstances, shall bear their own costs of the writ petition.