1. This is an application by the Maharaja Shri Umaid Mills Ltd., Pali (Marwar) under Articles 226 and 227 of the Constitution of India and arises in the following circumstances.
2. On 7th July, 1953, the Government of Rajasthan acting under Section 10 of the Industrial Disputes Act, 1947, referred certain industrial disputes between the petitioner and its workmen represented by the Textile Labour Union (Red Flag) Pali for adjudication to the Industrial Tribunal Rajasthan, Jaipur, by two notifications of the Labour Department dated 7-7-53. Copies of both these notifications are on the record and have been marked as Exs. A and B.
The Industrial Tribunal started proceedings in both these references. During the pendency of the proceedings before the Industrial Tribunal, both the parties came to a mutual settlement of the outstanding disputes between them. On 22-2-55 both the parties jointly filed an application before the Industrial Tribunal and also produced a memorandum of settlement arrived at between them. Both of them prayed for an award in terms of the said settlement. Thereupon, the Industrial Tribunal gave an award in terms of the settlement between the parties on the same day, i.e., 22-2-55. This award was published in the Rajasthan Rajpatra dated 26-2-55.
Its copy is also on the record and has been marked as Ex. C. On 15-6-56 the Government of Rajasthan acting under Section 10 of the Industrial Disputes Act again referred certain industrial disputes between the petitioner and the non-petitioner No. 1 to the Industrial Tribunal for adjudication. On 31-7-56 the Government of Rajasthan issued another notification amending its first notification dated 15-6-56, thereby the dispute relating to bonus for 1954 was excluded from the reference. To this extent the facts are admitted by both the parties.
3. It has been pointed out by the petitioner that according to the settlement which was arrived at between the petitioner and the non-petitioner No. 1 on 22-2-55 and which merged in the award of the Industrial Tribunal of the same date, the award was to come into force from 1st January, 1955 and was to remain in operation for a period of at least one year, i.e., up to 31st December, 1955 and also for a further period thereafter until it was terminated according to law. The petitioner's contention is that this award was not terminated by non-petitioner No. 1 in accordance with the provisions of law as contained in Section 19(6) of the Industrial Disputes Act of 1947 (which will hereafter be referred as the 'Act').
It has been urged that according to Section 19(6) of the Act the non-petitioner No. 1 ought to have given to the petitioner a notice intimating its intention to terminate the award, that the award could come to an end after the expiry of a period of 2 months from the date on which the notice was given and then only an industrial dispute could arise between the parties. According to the petitioner so long as the award was in force no industrial dispute could be said to have arisen between the parties and the Government could not make a valid reference to the Industrial Tribunal.
It has been stated by the petitioner that a representation was made to the Government on 27-7-56 protesting against the aforesaid reference, dated 15-6-56, but the Government did not care to reply to the petitioner's representation. Thereafter, the petitioner raised a preliminary objection before the Industrial Tribunal on the ground that the Government was incompetent to refer the matters mentioned in its notification dated 15-6-56 as industrial disputes. The petitioner also challenged the jurisdiction of the Industrial Tribunal to entertain and decide the matters referred to it by an invalid reference.
On 12-1-57, the learned Judge of the Industrial Tribunal decided the preliminary objection against the petitioner. The petitioner has filed a copy of the Industrial Tribunal's order dated 12-1-57 and it is marked as Ex. T. It appears from Ex. J that the learned Judge has decided 5 issues thereby. In the original application filed by the petitioner the validity of the whole of this order was challenged, but at the time of arguments the petitioner's learned counsel abandoned his objections relating to other matters and confined his arguments only about the matter relating to dearness allowance. It may be mentioned here that in the notification dated 15-6-56 one of the disputes referred to the Industrial Tribunal was as follows:
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The petitioner's contention before the Industrial Tribunal was that this dispute between the parties was already decided by the award dated 22-2-55 and since it was not terminated according to law there was no industrial dispute between the parties on this matter and it could not be made a subject of valid reference. Learned Judge of the Industrial Tribunal dismissed this objection with the following remarks:
'In so far as demand No. 2 for Dearness Allowance is concerned I may only state briefly that the question of such an allowance cannot be treated as settled for all time under the award because by its very nature it is dependent on the cost of living index and so many other factors which are subject to change. Moreover it was emphasized in the memorandum of settlement which was the basis of the award that the settlement was confined to disputes that existed or might arise in any manner in the working of the Mills up to 31-12-54. The settlement or the award cannot therefore stand in the way of an adjudication as to the future rate of dearness allowance.' Learned counsel for the petitioner has urged that the petitioner never meant to contend before the tribunal that a dispute about dearness allowance could never arise between the parties in future. What was really stressed was, that so long as the award on the question of dearness allowance was in force, the Government could not refer the dispute to the Industrial Tribunal, that the Tribunal could have no jurisdiction to decide an industrial dispute which had never arisen and this argument was not appreciated by the learned Judge. It has been vehemently urged that since the' non-petitioner No. 1 did not give any notice to the petitioner to terminate the award according to Section 19(6) of the Act, the award on the question of dearness allowance was still in force, that no industrial dispute could therefore be said to have arisen with respect to it, that the Industrial Tribunal had therefore no jurisdiction to entertain and decide this matter and so its proceedings so far as they relate to this matter should be quashed and it should be prohibited from proceeding with the adjudication of this matter. It may be again clarified here that the learned counsel for the petitioner has abandoned his objections about other disputes referred by the Government notification dated 15-6-56 (Ex. F) and therefore we need not go into them.
4. In reply, it has been urged by learned counsel for the non-petitioner No. 1 that a notice in writing was not necessary to terminate the award under Section 19(6) of the Act. According to learned counsel, the award was terminated by the conduct of the parties. Lastly, it has been urged that the non-petitioner had terminated the award by their letters dated 22-2-56 and 21-5-56, which have been marked respectively as Exs. V and VI.
5. It has not been disputed before us that so long as an award remains in force a matter which has already been decided by that award cannot be entertained, and adjudicated upon by the Industrial Tribunal. The questions for determination therefore are:
1. Whether notice to terminate the award must be given in writing or it may be terminated orally or by conduct of the parties?
2. Whether the award dated 22-2-56 has not yet been terminated according to law and therefore the Industrial Tribunal has no jurisdiction to adjudicate upon the question of dearness allowance, which was decided by the said award.
6. With regard to the first point it has been urged by the learned counsel for the non-petitioner No. 1, that Section 19(2) of the Act provides that if one of the parties to a settlement wants to terminate the same it should give a notice in writing of its intention to terminate the settlement and that the settlement will continue to be binding on the parties until the expiry of 2 months from the date of such notice. It has been pointed out that a similar provision has been made in Section 19(6) for terminating the award by two months' notice, but here the law makers did not mention that the notice must be in writing.
It is contended that if it was the intention of the Legislature that the notice to terminate the award must also be in writing, the same words ought to have been repeated in Sub-section (6) also and since Sub-section (6) does not require a notice to be in writing an award can be terminated even by oral notice. It has been further pointed out that while writing its letter dated 22-2-56 (Ex. V) the non-petitioner No. 1 had raised a demand about dearness allowance in the same terms in which it has been referred to the Industrial Tribunal and thereafter the non-petitioner No. 1 could not remain in any doubt of its intention to terminate the award.
It is urged that the non-petitioner has thus terminated the award indirectly by its conduct if not by an express notice in writing. In support of his contention learned counsel has referred to a decision of an Industrial Tribunal in Metal Craft (India) Ltd., Howrah v. Their Workmen, (1955-56) 8 FJR 426 (A). In that case it was held that the notice under Section 19(6) can be either oral or in writing. The correctness of this opinion has been seriously challenged by the petitioner's learned counsel. We have given our earnest consideration to this question and we find ourselves unable to agree with the view taken, in the case cited above.
Learned Judge who decided that case has not given detailed reasons and has remained content with saying that 'no form was prescribed for a notice referred to in Section 19, Clause (6).' It is true that no particular form of notice had been prescribed by law but this does not mean that the notice to terminate the award may be oral and need not be in writing. We are not impressed with the argument that since the words 'in writing' do not appear in Sub-section (6) of Section 19 as they appear in Sub-section (2) of Section 19, the intention of the Legislature was that the notice for terminating the award could be oral. Learned counsel for the non-petitioner No. 1 has not been able to point out any principle whereby a notice to terminate, the settlement should have been considered necessary to be in writing: while for terminating an award such a notice in writing was not considered necessary.
In both the cases it has been provided that there should be 2 months' notice and so long as the period of 2 months does not expire, the settlement or the award would remain binding on both the parties. In our opinion, the Legislature did not consider it necessary to repeat the words ''in writing' in Sub-section (6) because it had already indicated its mind and inserted these words in Sub-section (2) by way of abundant caution. In a case where the question of computation of 2 months' limitation arises from a particular date it is extremely necessary that the notice must be in writing.
A contrary opinion would land the parties in further dispute on a question of fact. In other words, one party may urge that an oral notice was given from a particular date. The other party may deny it and it would be extremely difficult for the Judge concerned to decide whether or not a notice was given from a particular date. It was to avoid mis sort of dispute on facts between the parties that the Legislature clearly mentioned in Section 19(2) that a notice for terminating a settlement must be in writing.
In our opinion, the same words were not repeated by the Legislature in Sub-section (6) since it had already indicated its mind in Sub-section (2) and a repetition of the same words in Sub-section (6) might have been considered unnecessary. We do not think that these words were omitted from Sub-section (6) because an oral notice for terminating the award was thought to be sufficient. We have not been able to find out any reason why an oral notice should be sufficient for terminating an award find why a written notice should be necessary for terminating a settlement when in both the cases two months' period of limitation has been prescribed and that period is to be computed from the date of the notice. We therefore do not agree with the view taken in 1955-56-8 FJR 426 (A).
7. Similarly, we do not agree with the contention of the learned counsel for the non-petitioner No. 1 to the effect that the award could be terminated by the conduct of the parties and that it should be deemed to have been terminated because the non-petitioner No. 1 had raised a demand for dearness allowance by their letter marked Ex. V. We have already held that a notice for terminating an award must be in writing otherwise it would be extremely difficult to compute the period of limitation from a particular date.
The award between the parties cannot therefore be taken to have been terminated simply by saying that it came to an end by the conduct of the parties. We have carefully-perused Ex. V and we find that the non-petitioner has nowhere mentioned therein that it wanted to terminate the award dated 22-2-55. Learned counsel for the non-petitioner No. 1 has drawn our attention to the following passage appearing in paragraph 2 of the said letter:
'Dearness allowance should be paid on the basis of 90 per cent, neutralization on the cost of living index calculated as average of Bombay, Sholapur and Ahmadabad.'
In our opinion, this was merely a demand made by non-petitioner No. 1 from the petitioner and simply because a demand was made it cannot be said that the non-petitioner had intimated its intention to terminate the award. On the other hand, we find that in paragraph 1 (b) of the same letter, i.e., Ex. V the non-petitioner had requested the petitioner that certain workers' should be made permanent on the basis of the settlement between the parties. This shows that the non-petitioner was still insisting on the implementation of the settlement arrived at between the parties which was embodied in the award. It cannot be said that the non-petitioner was intimating its intention to terminate the award when it was asking the petitioner to stick to the award at the same time.
8. We have next to determinate whether the award dated 22-2-55 was terminated by Ex. VI. Learned counsel for the non-petitioner has urged that this was a clear notice in writing and the non-petitioner No. 1 had intimated to the petitioner that it should accede to its demand or the workmen would take direct action. The demand about dearness allowance was made in item No. 2 and the award should be deemed to have been terminated 2 months after the date of this letter which is 21-5-56.
We have carefully gone through this letter and we again find that it is not possible for us to hold that it was a notice for terminating the award. In this letter the non-petitioner No. 1 had made several demands and one of them was about dearness allowance, but this notice was only given to intimate to the petitioner that in case their demands were not met they would resort to direct action from 29-5-56. It is significant that although the non-petitioner No. 1 included the question of dearness allowance amongst its demands, it again did not intimate its intention to terminate the award dated 22-2-55.
On the other hand, this letter started with the allegation that the petitioner had not implemented all the terms of the settlement arrived at between the parties in January 1955, that it was breaking its terms indirectly in one way or the other, that the Union on the other hand was observing the terms 'of the settlement on its part, that the Union considered it unnecessary to talk to the management on account of its policy and that they would therefore resort to direct action in case their demands were not fulfilled.
Thus, this was only a notice to resort to direct action in case the petitioner was not to accede to the demands raised by the Union. It was nowhere mentioned in this letter that the Union was terminating the award. On the other hand it is noteworthy that in item No. 5 the petitioner was specifically requested to implement a certain term of their settlement arrived at in January 1955. We have already stated above that when the non-petitioner No. 1 was asking for the implementation of certain terms of the award on the one hand, it cannot be said that it was at the same time intimating its intention to terminate the award.
Under these circumstances, we find ourselves unable to hold that non-petitioner No. 1 had acted according to the provisions of Section 19(6) and that the award has come to an end. If the non-petitioner No. 1 does not want to stick to the terms of the award, it should give a notice in writing to the petitioner intimating its intention to terminate the award and the award would terminate two months after the expiry of the date of such notice. So long this is not done the award continues to be binding on both the parties. It cannot be said under the circumstances that there is an industrial dispute between the parties on the question of dearness allowance which was decided by the award dated 22-2-55.
9. Learned Judge, Industrial Tribunal, has observed that the question of dearness allowance cannot be treated as settled for all time under the award and that the award cannot stand in the way of adjudication as to the future rate of dearness allowance. We agree with the learned Judge to the extent that the question of dearness allowance can be raised by the non-petitioner No. 1 in view of the changing conditions in future, but this question cannot be raised so long as the award on this point remains in force.
Whichever party wants to raise this point again has got to terminate the award first in the manner provided by Section 19(6). So long as this is not done the Industrial Tribunal has no jurisdiction to go into the matter. Since the learned Judge Industrial Tribunal is exercising jurisdiction which is not vested in him, we think it proper that the proceedings taken by him should be quashed so far as they relate to the question of dearness allowance and he should be further prohibited to entertain and decide this question so long as the award is not terminated and the matter is again referred to him according to law.
10. We therefore allow the application and quash the proceedings of the learned Judge Industrial Tribunal so far as they relate to the question of dearness allowance. We further prohibit him from proceeding to entertain and decide this matter so long as the award dated 22-2-55 is not terminated according to law and the dispute in this matter is referred to him again by the Government, In view of the circumstances of the case, we leave parties to bear their own costs.