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Keventers Karamchari Sangh Vs. the Lt. Governor, Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 408 of 1968
Judge
Reported in(1971)IILLJ375Del
ActsIndustrial Disputes Act, 1947 - Sections 10 and 10(3)
AppellantKeventers Karamchari Sangh
RespondentThe Lt. Governor, Delhi and ors.
Advocates: A.K. Gupta,; B. Kishore,; J.P. Gupta and;
Cases ReferredThe Collector of Customs v. Nathella Sampathu Chetfy and
Excerpt:
.....cannot be described as an unchannelled arbitrary discretion because the said act provides for the exercise of discretion for attaining these objects of the act which are the settlement of industrial disputes; the promotion of industrial peace; maintenance of production and benefit to the community in general.; (ii) industrial dispute act (1947), section 10--exercise of discretion under sub-section (3)--justiciability of--abuse of power--effect of.; that it cannot be assumed that the appropriate government will abuse its power, even though the power is wide and is to be exercised in the discretion of the appropriate government. to make the exercise of the power justiciable will defeat the very purpose for which the power is given. such discretion cannot be said to be unfettered and..........for bonus for the year 1966-67, being demand no 2 enumerated above and mentioned in the notice of strike, was referred for adjudication. the petitioners' complaint is that demands nos. 1 and 3 mentioned above were not referred for adjudication. on the same date, may 20, 1968, the continuance of the strike which had been resorted to by the petitioners in pursuance of their aforesaid notice was prohibited by the impugned order on the ground that the dispute between the management and the workmen had been referred to the industrial tribunal, delhi, for adjudication. it may here be stated that the said company had earlier by their letter dated may 10, 1968 written to the conciliation officer praying, inter alia, that prohibitory orders may be passed calling off the strike as it was the.....
Judgment:

S.N. Andley, J.

(1) The order dated May 20, 1968 of the Delhi Administration prohibiting the continuance of the strike by the petitioner Union which was passed in exercise of powers conferred by sub-section (3) of section 10 of the Industrial Disputes Act, 1947 has been challenged by this writ petition on three main grounds. Firstly, because sub-section (3) of section 10 of the said Act is vocative of Article 14 of the Constitution; secondly, because the said order was not in compliance with the provisions of the said sub-section and thirdly, because the said order was passed at the instance of respondent No. 2 without affording any opportunity to the petitioners to show cause against it.

(2) The petitioners are a union of workmen of Messrs Edward Keventer (s) Private, Limited. The first Respondent 1s the Lt. Govenor of Delhi and the second Respondent 1s the said company. Certain demands raised by the petitioners on December 20, 1967 were pending conciliation before the Conciliation Officer, Delhi. On April 1, 1968 while the conciliation proceedings were pending, the General Secretary of the petitioners served a notice of a strike upon the said company under sub-section (1) of section 22 of the said Act to be called on any day after the expiry of fourteen days of the receipt of the said notice. The three demands upon which reliance has been placed by the petitioners before us which gave rise to the said notice were :-

(1)'Withholding of existing benefits and nonpayment of past wages etc.';

(2)demand for bonus for the year 1966-67 at the rate of not less than 20% instead of at the rate of 4% as declared by the said company; and

(3)the unlawful and unauthorised adjustment of the declared bonus against the advances of the workmen without their consent.

(3) A copy of the said notice of strike was sent to various authorities and to the Delhi Administration. On May 20, 1968, the Delhi Administration referred various demands of the petitioners for adjudication to the Industrial Tribunal, Delhi, in exercise of powers conferred by sections 10(l)(d) and 12(5) of the said Act. It is not disputed that the demand for bonus for the year 1966-67, being demand No 2 enumerated above and mentioned in the notice of strike, was referred for adjudication. The petitioners' complaint is that demands Nos. 1 and 3 mentioned above were not referred for adjudication. On the same date, May 20, 1968, the continuance of the strike which had been resorted to by the petitioners in pursuance of their aforesaid notice was prohibited by the impugned order on the ground that the dispute between the management and the workmen had been referred to the Industrial Tribunal, Delhi, for adjudication. It may here be stated that the said company had earlier by their letter dated May 10, 1968 written to the Conciliation Officer praying, inter alia, that prohibitory orders may be passed calling off the strike as it was the responsibility of the Government to protect public utility services to which category the said company admittedly belongs.

(4) On the first point it is urged that sub-section(3) of section 10 of the said Act confers arbitrary powers on the Government and no guiding principles have been specified for the exercise of discretion under this sub-section which is in these terms:-

'WHEREan 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.'

(5) Reliance is placed on the third class of cases enumerated by the Supreme Court in Dalmia's case : [1959]1SCR279 where it is observed :-

'A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, thereforee, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law.'

(6) It is contended that there are no guide lines provided either in the said Act or in sub-section (3) of section 10 thereof for the exercise of discretion by the appropriate Government and that, thereforee, the exercise of discretion by the appropriate Government is bound to be arbitrary and at its sweet will and pleasure and for that reason both the said sub-section and the impugned order must be struck down. The question, thereforee, is whether the said Act has laid down any principle or policy for guiding the exercise of discretion by the Government in the matter of deciding whether or not to pass an order under section 10(3) prohibiting the continuance of a strike. Section 10(1) of the said Act which empowers the appropriate Government to refer an industrial dispute existing or apperehended to Boards, Courts or Tribunals was challenged in Niemla Textille's case AIR 1957 S.C. 329 on the ground that this section was vocative of Article 14 as it was discriminatory in its ambit and scope and conferred on the appropriate Government unregulated and arbitrary powers inasmuch as no rules had been made to justify differentiation between parties similarly situated and circumstanced in every respect and there was no rational basis of classification providing different procedures for dealing with the same or similar matters. The Supreme Court repelled the challenge, After considering the provisions of the Act it expressed the view that,-

'THEbasic idea underlying all the provisions of the Act is the settlement of industrial disputes and the promotion of industrial peace so that production may not be interrupted and the community in general may be benefited. This is the end which has got to be kept in view by the appropriate Government when exercising the discretion which is vested in it in the matter of making the reference to one or the other of the authorities under the Act and also in the matter of carrying out the various provisions contained in the other sections of the Act including the curtailment or extension of the period of operation of the award of the Industrial Tribunal.'

(7) It cannot, thereforee, be disputed that the said Act does not fall within the third class of cases mentioned in Dalmia's case (supra) where the statute has not laid down any principle or policy for the guidance of the Government in the exercise of its discretion. In our opinion, this case will fall in the fourth class of cases mentioned in Dalmia's case (supra) as to which it is stated :-

'A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification; the Court will uphold the law as constitutional.'

(8) In view of the aforesaid policy of the said Act, sub-section of section 10 cannot be struck down as being vocative of Article 14 of the Constitution but if the action in pursuance of this section is arbitrary or not within the policy of the Act, the action alone would be struck down. Reliance is next placed on another decision of the Supreme Court reported in : 1983ECR2198D(SC) in re: The Collector of Customs v. Nathella Sampathu Chetfy and another, where it was observed :-

'THEpossibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner.'

(9) We fail to see how these observations help the petitioners. The petitioner then rely upon the following observation in Satwant Singh's case : [1967]3SCR525 :-

'ONEof the aspects of rule of law is that every executive action, if it is to operate to the prejudice of any person, must be supported by some legislative authority. Secondly, such a law would be void, if it discriminates or enables an authority to discriminate between persons without just classification.'

(10) The aforesaid observation has to be read in the context of that case because it is further observed that while in the case of enacted law one knows where he stands, in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it. It is, thereforee, clear that it is only unchannelled arbitrary discretion conferred by an Act which would render the law void. The discretion conferred by sub-section (3) of section 10 of the said Act cannot be described as an unchannelled arbitrary discretion because the said Act provides for the exercise of discretion for attaining the objects of the Act which are the settlement of industrial disputes; the promotion of industrial peace; maintenance of production and benefit to the community in general. 'Die petitioner, thereforee, cannot derive any strength from the aforesaid observation in Satwant Singh's case. The decision of the Supreme Court in Northern India Caterer's case : [1967]3SCR399 also does not help the petitioners because there the Supreme Court were dealing with an Act which itself provided -for differential treatment amongst persons similarly situated. Nor can any assistance be derived from Jaisinghani's case 1967 S.C. 1427 where no discretion was held to have been left with the Government of India to alter, according to the exigencies of the situation. or to deviate from the quota in any particular year which had been fixed by the Government in exercise of their power under rule 4 of the Income-tax Officers (Class I, Grade II) Service Recruitment Rules.

(11) The said Act makes provision for the investigation and settlement of industrial disputes and for certain other purposes. These other purposes are as have been stated by the Supreme Court in Niemla Textile's case (supra). Section 23 of the said Act contains a general prohibition of strikes and lock-outs during the pendency of conciliation proceedings; proceedings before a Labour Court, Tribunal, or National Tribunal; arbitration proceedings and during any period in which the settlement or award is in operation in respect of any of the matters covered by the settlement or award. The reason for this prohibition is that industrial disputes should be tried in a spirit of 'amity and no party should be in a position to coerce the other during the pendency of such proceedings. It is for the reason that power has been given to the appropriate Government by sub-section (3) of section 10 of the said Act in cases of strikes resorted to before the commencement of such proceedings to prohibit their continuance while the dispute is being adjudicated. In our opinion, this power is in consonance with the objects of the Act. The discretion given to the appropriate Government to make a prohibitory order has to be exercised in accordance with the objects and purposes of the Act. There cannot be any absolute rule obliging the appropriate Government to prohibit continuance of a strike during the pendency of proceedings because in a given case a strike may not affect production or injure the community in general and, in such a case, the appropriate Government may not, in the exercise of its discretion, prohibit such continuance.

(12) It is also to be taken into account that the discretion is given to the appropriate Government which is charged with the duty of maintaining industrial peace and production for the benefit of the community. It cannot, thereforee, be assumed that the appropriate Government will abuse its power even though the power is wide and is to be exercised in the discretion of the appropriate Government. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Such discretion cannot be said to be unfettered and uncontrolled inview of the objects of the Act. Where there is any abuse of such power, the abuse itself will be struck down but not the statute. While giving the power to prohibit the continuance of a strike, the Legislature could not have foreseen every contingency or situation that would arise and to specifically enumerate such contingency or situation in the Act itself. If there had been any such enumeration, there would be no occasion for conferring a discretion. All that the Legislature could do and has done is to provide in its various provisions the policy and object of the Act. It is implicit, thereforee, in the exercise of every discretionary power that it will be exer- cised only for giving effect to such principles and to attain such objects. We, thereforee, do not find any substance in the first contention.

(13) The second contention is based upon a construction of subsection (3) of section 10 of the said Act. The argument is that three demands were mentioned in the notice of strike out of which only the demand for bonus was referred while the other two were not. It is, thereforee, contended that the condition precedent to the exercise of the power has not complied with and on order prohibiting the continuance of the strike could be passed. Now, sub-section (3) of section 10of the said Act empowers the prohibition of the continuance of a strike in connection with a dispute which has been referred. The demand for bonus was one of the demands giving rise to the notice of strike. That demand was referred as an industrial dispute. On the language of the section, it cannot, thereforee, be said that the strike was not in connection with the demand for bonus which was referred. In our view. it is not possible to construe this sub-section so as to say that an order under it cannot be made unless all the demands which are the subject matter of the notice of strike have been referred as industrial disputes. If even one of the demands has been referred as non-industrial dispute, the strike will be in connection with such dispute and the power to prohibit the continuance of the strike can be exercised. Any other interpretation is likely to lead to absured results. Take a case where the notice of strike contains demands only some of which can be referred as industrial disputes and the others not. It cannot be suggested that if the demands which cannot be referred as industrial disputes are not referred, 'an order for prohibiting the continuance of the strike cannot be passed. Reference of one demand as an industrial dispute makes be strike 'in connection with such dispute' within the meaning of the said subsection. We are, thereforee, unable to agree that the impugned order was not in compliance with this sub-section.

(14) The last contention is that the impugned order was passed at the instance of the said company as by their aforesaid letter dated May 10, 1968, to the Conciliation Officer prayer had been made for an order under sub-section (3) of section 10 of the said Act and the impugned order having been passed pursuant to this prayer the petitioner should have been given an opportunity to show cause. In the first place it is not admitted on behalf of the first respondent that the order prohibiting the continuance of the strike was passed because of the aforsaid letter of the said company. In fact, the answer of the first Respondent 1s that the said company is a public utility service manufacturing and supplying milk and milk product and that such prohibitory orders are normally passed in all cases relating to public utility services. We have no reason to doubt this averment of the first respondent. In 'the second place, as has been stated already, the opportunity to show cause will defeat the very object to achieve which sub-section (3) of section 10 was enacted. Such an order can, by no means. be said to be justiciable or an order which requires the giving of an opportunity to show cause. We cannot, thereforee, accept this contention.

(15) In the result, the writ petition is dismissed with costs. There will be one set of counsel's fee which is assessed at Rs. 200.00 to be shared equally between the counsel for each of the respondents.


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