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C.P. Sarathy Vs. State of Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberCriminal Misc. Petn. No. 1278 of 1950
Judge
Reported inAIR1951Mad191; (1951)ILLJ148Mad; (1951)IMLJ527
ActsConstitution of India - Articles 13(1), 14 and 19(1); Industrial Disputes Act, 1947 - Sections 2, 10, 10(1), 15 and 29; Industrial Disputes (Madras Amendment) Act, 1949 - Sections 5 and 6; Code of Civil Procedure (CPC) , 1908; Code of Criminal Procedure (CrPC) , 1898 - Sections 439 and 561A; Government of India Act, 1935 - Sections 107
AppellantC.P. Sarathy
RespondentState of Madras and ors.
Appellant AdvocateK.S. Jayarama Aiyar, Adv. for K. Venkataramani and ;H. Neelakantan, Advs.
Respondent AdvocateThe State Prosecutor
Cases ReferredLtd v. India Paper Pulp Workers Union
Excerpt:
labour and industrial - jurisdiction - section 29 of industrial disputes act, 1947 - petitioner's trade union demanded increased wages, dearness allowance, annual bonus, increased leave facilities and various other facilities - managing director failed to implement award - government referred matter to tribunal - whether award of tribunal valid - dispute one sided as petitioner's union did not represent entire body of all workers of cinema - dispute one sided cannot be called dispute - no dispute between petitioner and his employees for being referred to any tribunal - government had no jurisdiction to refer matter to tribunal as there was no dispute - held, award was not valid and binding on petitioner as government had no jurisdiction to refer matter to tribunal. - - hence the.....govinda menon, j.1. the south indian cinema employees assocn. is a body regd. in september 1946 as a trade union by the labour comr. under the trade unions act (act xvi [16] of 1926). it contains, amongst its members a large body of employees of the various cinemas & picture houses in the city of madras, including the prabhat talkies, the managing director of which is the petnr. in this ct. some, & not all the employees of the prabhat talkies, were members of this trade union in 1946. on 8-11-1946, this trade union submitted a memo, to the labour comr. of madras demanding increased wages, dearness allowance, annual bonus of three months wages, increased leave facilities, provident fund & the adoption of proper procedure in imposing punishments. on this memo, the labour comr, interviewed.....
Judgment:

Govinda Menon, J.

1. The South Indian Cinema Employees Assocn. is a body regd. in September 1946 as a trade union by the Labour Comr. under the Trade Unions Act (Act XVI [16] of 1926). It contains, amongst its members a large body of employees of the various cinemas & picture houses in the city of Madras, including the Prabhat Talkies, the managing director of which is the petnr. in this Ct. Some, & not all the employees of the Prabhat Talkies, were members of this trade union in 1946. On 8-11-1946, this trade union submitted a memo, to the Labour Comr. of Madras demanding increased wages, dearness allowance, annual bonus of three months wages, increased leave facilities, provident fund & the adoption of proper procedure in imposing punishments. On this Memo, the Labour Comr, interviewed the representatives of some of the Cinema talkies & finally submitted a letter to the Govt. on 13 5-1947 to appoint an Industrial Tribunal for adjudication of the matters refd. to in his letter. Thereupon, on 20-5-1947 by G. O. Ms. 2227, Development, the so-called dispute was refd. to a tribunal with the following order of reference :

'Whereas an Industrial Dispute has arisen between the workers & managements of the Cinema talkies in the Madras City in respect of certain matters :

And whereas in the opinion of H. E. the Governor of Madras, it is necessary to refer the said industrial dispute for adjudication ;

Now, therefore, in exercise of the powers conferred by Section 7(1) & (2) read with Section 10(1)(c), Industrial Disputes Act, 1947 (Central Act XIV [14] of 1947) His Excellency the Governor of Madras hereby constitutes an Industrial Tribunal consisting of one person, namely, Sri Dewan Bahadur K.S. Ramaswami Sastri, Retired Dist. & Ses. J. & directs that the said industrial dispute be refd, to that tribunal for adjudication.

3. The Industrial Tribunal may, in its discretion, settle the issues in the light of a preliminary enquiry which it may hold for the purpose & thereafter adjudicate on the said industrial dispute.

4. The Comr. of Labour is requested to send copies of the order to the Managements of Cinema Talkies concerned.'

The Industrial Tribunal proceeded to conduct the enquiry, framed issues & finally passed an award embodying its findings on the issues raised for decision. The said award provided for the type of employees in the various cinemas, the number of employees in each category, the basic pay & the annual increments per mensem of each of the employees & various other matters. It also dealt with the dearnees allowance to be paid to the employees, the bonus which each employee should get, the period of leave per year, provident fund gratuity, overtime payment, confirmation, increment, & such matters. It further provided that these recommendations should be given effect to in respect of basio wages from 20-5-1947, when the proceedings before the Tribunal commenced & that the other recommendations should be given effect from 1-1-1948. By G. O. No. 667, Development Dept. dated 13-2-1948, the Govt. of Madras accepted the award & declared the same to be binding for one year the enforceablity of which was to come into operation from 25-2-1948, & enurethereafter till 24-2-1949.

2. On 24-4-1950, the S. I. of Police, Central Crimes Dept. filed a charge sheet before the Third Presidency Mag. Egmore, against the petnr. on the ground that though according to the award, the management of the Prabhat Talkies ought to have implemented the same in respect of wages & dearness allowance with retrospective effect from 20-5-1947 & 1-1-1948 respectively, the same was not given effect to in the manner provided for in the award but that the wages & the dearness allowance were implemented only from 25-2-1948-& the increments were given only from 1-3-1949. Such being the case, the award had been contravened & moreover, it is alleged in the charge sheet, that the Prabhat Talkies did not employ a chief fcicket; examiner & an advance booking clerk as required by the award. Hence the charge sheet complained that the managing director of the Prabhat Talkies was liable for an offence punishable under Section 29, Industrial Disputes Act (Central XIV [14] of 1947). The Mag. took the case on file & issued notice to the person accused of the offence.

The accused took the objection that the Ct. had no jurisdiction to proceed with the enquiry because the award itself was void & ultra vires with the result that no offence has been committed. The objection having been overruled, the petnr. came up to this Ct. to quash the proceedings before the learned Mag. & our learned brother Somasun-daram J. considered that the case involved important questions of law which necessitated its decision by a Bench & that is how this cri. misc. petn. comes on before us for disposal.

3. Before elaborating the contentions on either side, it will be useful to have a bird's eye view of the legislative provisions on which the prosecution justifies the filing of the charge sheet. Prior to 1926, on the anvils of the statute book in India, there had been no enactment providing for the registration & recognition of trade unions & defining the law relating to such trade unions, though acts of Parliament on the subject of trade unions were prevalent in England long prior to that. Act XVI [16] of 1926 provided for the registration of trade unions, the rights & liabilities of regd. trade unions, the regulations regarding the same & various other matters. The expressions 'trade dispute' & 'trade union' were also defined, the former meaning any dispute between employers & workmen, or between workmen & workmen, or between employers & employers which is connected with employment or non-employment, or the terms of employment or the conditions of labour of any person; & the latter term as meaning any combination whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen & employers or between workmen & workmen, or between employers & employers, or for imposing restrictive conditions on the conduct of any trade or business, & is said to include any federation of two or more trade unions. The word 'workmen' was also defined as meaning all persons employed in trade or industry, whether or not in the employment of the employer with whom the trade dispute haa arisen. For the purpose of the present case, it may not be useful to notice the various provisions of the Act dealing with the subject of trade unions. By Act VII [7] 1929, the Central Govt. undertook further legislation making provision for the investigation & settlement of trade disputes & for other purposes. This statute provided for reference of disputes to Ots. of enquiry & to Boards of conciliation & special provisions were made for illegal strikes & lock outs. It was by Act XIV [14] of 1947 that the Govt. of India enacted for the investigation & settlement of industrial disputes & the preamble stated that 'it is ex-pedient to make provision for investigation & settlement of industrial disputes & for certain other purposes'. Section 2, Clause (k) defines an 'industrial dispute' as a dispute or difference between employers & employers or between employers & workmen, or between workmen &workmen;, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. Clause (j) defines 'industry' as any business, trade, undertaking, manufacture or calling of employers & includes any calling, service, employment, handicraft or industrial occupation-or avocation of workmen. Clause (s) defines workman as meaning any person employed (including an apprantice) in any industry or any skilled or unskilled manual or clerical work for hire or reward & includes, for the purpose of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Crown. Section 7 provides for the appointment of industrial tribunals by the appropriate Govt. Section 10(1) is as follows :

'If any industrial dispute exists or is apprehended, the appropriate Govt. may, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof or (b) refer any matter appearing to bo connected with or relevant to the dispute to a Ct. for enquiry; or (c) refer the dispute to a Tribunal for adjudication : Provided that where the dispute relates to a public utility service & a notice under Section 22 has been given, the appropriate Govt, shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient to do so, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.'

Section 15 deals with the duties of the tribunals of which Sub-section (2) states that on receipt of an award from the tribunal, the appropriate Govt. shall, by order in writing, declare the award to be binding. There is a provision that where the appropriate Govt. is a party to the dispute, they have to perform certain other duties as well. Section 19, Sub-section (3) states that an award declared by the appropriate Govt. under Section 15 to be binding shall come into operation on such date as may be specified by the appropriate Govt. & shall remain in operation for such period, not exceeding one year, as may be fixed by that Govt. The penalty for failure to implement the award is contained in Section 29 to the effect that if any person commits a breach of any term of any settlement or award, which is binding on him under the Act, he shall, on his first conviction therefor, be punishable with fine which may extend to two hundred rupees & in the event of a second or subsequent conviction with fine which may extend to five hundred rupees. The Govt. of Madras which claims to have power to legislate regarding such matters, as being included in the Concurrent List of the Govt. of India Act of 1935, amended the Industrial Disputes Act, 1947, by Madras Act XII [12] of 1949. The Act was called the Industrial Disputes (Madras Amendment) Act of 1949. It amended Sections 2, 10 & the schedule to Central Act XIV [14] of 1947. After Sub-section (2) of Section 10 of the Central Act, another sub-section was inserted as Sub-section 2A which laid down that notwithstanding anything contained in Sub-Sections (1) & (2) of Section 10, where a tribunal has been constituted under this Act for the adjudication of disputes in any specified industry or industries & a dispute exists or is apprehended in any such industry, the employer or a majority of the workmen concerned may refer the dispute to that tribunal. The result of the insertion of the new Sub-section 2A is that whereas prior to its enactment, the reference to an industrial tribunal can be made only by an appropriate Govt., after thecoming into operation of Section 10(2A), the employer or a majority of the workmen concerned can refer the dispute to the tribunal. By the Amending Act, two new sections are enacted, viz., Sections 5& 6,& the schedule was also added to this enactment. Sections 5 & 6 & the schedule are as follows :

'5. Where, before the commencement of this Act, any Industrial Tribunal has been constituted by the Provincial Govt., under the said Act, all proceedings taken, all awards made, & all other acts & things done, whether before or after such commencement, by or before such Tribunal in connexion with any industrial dispute, shall be deemed to be valid & shall not be called in question in any Ct. of law on the ground that the tribunal was not constituted in accordance with the provisions of the aaid Act or the dispute to which the proceeding, award, act or thing relates was not refd. to the Tribunal in accordance with such provisions.

Nothing contained in this section shall be deemed to invalidate any decision or order of a Ct. which became final before the commencement of this Act.

6. All awards passed by Industrial Tribunals & mentioned in the schedule hereto which could not be enforced on account of the proceedings before the H. C. shall be current & valid for a further period of one year from the commencement of this Act.

Schedule :--1, The Motor Transport award.

2. The award in the dispute between the Managementsof Cinema theatres & workers.

3. The awards in the disputes between the Beedi workers & managements.

4. The awards in the disputes between the Cigar workers& managements.'

There can be no doubt that the second item of the schedule, viz., the award in the dispute between the managements of cinema theatres & workers, refers to the award which is the subject-matter of consideration in this case. More recently, the Parliament of India has passed Act XLVIII [48] of 1950 providing for the establishment of an Appellate Tribunal in relation to industrial disputes & for certain other matters incidental thereto. In this enactment, Industrial Tribunal among othermatters is defined as any industrial tribunal constituted under Act XIV [14] of 1947. Section 20 of Act XLVIII [48] of 1950 provides that any moneydue from an employer under any award or decision of an industrial tribunal may be recovered as arrears of land revenue or as a public demand by the appropriate Govt. on an appln. made to it by the person entitled to the money under that awardor decision. The combined result of Section 29 of Act XIV [14] of 1947 & Section 20 of Act XLVIII [48] of 1950 is that if an employer does not implement the terms of an award passed by an industrial tribunal, .not only can the amount due from him be recovered as arrears of land revenue or public demand, but he can be prosecuted in a criminal Ct. as well.

4. The first contention raised before us is that Act XIV [14] of 1947 in so far as it makes the employers bound to act in accordance with the terms of an award, which was passed without the employees being consenting parties to the reference, & in spite of the protests of the employers is ultra vires by reason of Article 19(1)(f) & (g) of the Constitution & that Clause (6) of Article 19 can have no application to this statute because it is not a restriction in the interests of the general public but it is a direction to pay money under a threat. Clauses (f) & (g) of Article 19(1) of the Constitution lay down that all citizens shall have the right to acquire, hold & dispose of property; & to practice any profession, trade or business. Clause (6) of Article 19 is to the effect that nothing in Sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, &, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it prescribes, or empowers any authority to prescribe, or prevents the State from making any law prescribing, or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. Clause (5) says that nothing in Sub-clause (f) shall prevent the State from making any law imposing reasonable restrictions in the exercise of any of the rights conferred by the aaid sub-clause either in the interests of the general public or for the protection of the interests of any scheduled tribe.

5. It is contended before us that the members of the Cinema Employees Asaocn. cannot be said to be the 'general public' & therefore restrictions in their interests cannot come within the ambit of either Clause (5) or Clause (6). For this argument our attention was invited to the, observations contained at p. 311 of 32 Halsbury's Laws of England, Para. 429 at p. 311 makes a reference to industrial Cts., arbitration & Cts. of enquiry, & what we are asked to decide is that since in England, without the consent of both the parties, the reference of a dispute for settlement to the industrial Ct. for arbitration is not possible, the provisions in the Indian Act by which the appropriate Govt. is authorised to refer a dispute without the consent of both the parties is illegal. We are not satisfied that Sub-clauses (f) & (g) of Article 19(1) of the Constitution have any bearing on the present question. There is no restriction puts upon acquiring, holding, or disposing of property or practising any profession or carrying on any occupation, trade or business. What is sought to be done by these labour legislations is the implementation of the directive principles of State policy contained in Part IV of the Constitution, especially that contained in Article 43 which states that the State shall endeavour to secure, by suitable legislation to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life & full enjoyment of leisure & social & cultural opportunities. Both Act XIV [14] of 194T & Act XLVIII [48] of 1950 endeavour to secure the industrial worker conditions of work ensuring a decent standard of life & a living wage. It cannot be said that there is any restriction on the carrying on of a trade or business by the cinema employers, as a result of the Industrial Disputes Act. Whether, in England, a reference without consent of both parties' is allowed or not because our attention has not been invited to any statute like the Industrial Disputes Act it cannot be aaid that the Acts in India have, in any way contravened, or set at nought, any provision of the Constitution.

6. But the more important question that has to be conaidered is whether the award which has been made on a reference, the terms of which have been set out by us earlier, can be said to be a valid & binding award. The learned counsel contends that there was no material before the State Govt. to show that there existed any dispute between the workers of Prabhat Talkies & the management at all. The mere fact that some of the workmen of the Prabhat Talkies were members of the Cinema Employees Trade Union, would not give the trade union any authority to create a dispute & have it refd. to a tribunal. Secondly, it is contended that the reference does not specify the dispute at all. What is stated in the reference is that an industrial dispute has arisen between the workers & the management of the Cinema talkies in the City of Madras in respect of certain matters. Awards passed on similar references have been the subject of consideration in this Ct. recently. In Ramayya v. Kutty & Rao (Engineer) Ltd. : (1949)1MLJ231 Horwill & Rajagopalan JJ. had to consider an award passed on a similar reference without specifying what the dispute was. The reference stated that industrial disputes have arisen between the workers & management of certain engineering firms & type foundries in the province of Madras & industrial disputes are apprehended in the rest of the Engineering firms & type foundries in respect of certain matters & therefore an industrial tribunal is constituted & the disputes are refd. to such tribunal for adjudication. The learned Judges held that such a reference does not give jurisdiction, for before making the reference, the Govt, must have reason to believe that in a particular business a definite dispute is known to exist or is apprehended by reason of demands & discussions taking place amongst the workers & the management. This decision was followed in Kandan Textiles Ltd., v. Industrial Tribunal, Madras, : (1949)NULLLLJ875Mad by the Hon'ble theChief Justice & Mack J. Here also the reference was in similar terms & the learned Judges refd. to & accepted with approval the dictum in Ramayya v. Kutty & Rao (Engineer) Ltd. : (1949)1MLJ231 . The Govt. notfn. in the two cases already referred to are practically in the same terms as the notfn. which resulted in the award in question for in none of these cases is the exact industrial dispute specified or any description given of the same. All that is stated is that industrial disputes have arisen between the workers on the one side & the management on the other.

7. In a more recent case reported in In re Lakshmanan, : AIR1950Mad835 , Sabbarao & Pancha-pakesa Aiyar JJ. quashed criminal proceedings instituted on the basis of an award passed by a tribunal pursuant to a notfn. which was invalid. There also the notfn. was in the same terms as the case refd. to already & the learned Judges held that since the notfn. was illegal, the award was invalid & the prosecution launched on the basis of the illegal award could not be sustained & the proceedings were quashed. A single Judge Panchapakesa Aiyar J. in In re The Calicut Hosieries, : AIR1950Mad231 set aside the conviction & sentience passed under Section 29 of Act XIV [14] of 1949 on the ground that the reference by the Govt. to the industrial tribunal was vague & general & therefore invalid & therefore the lock out by the management & the directors of the firm involving the dispute cannot be said to be illegal. He followed the decisions to which reference has already been made viz., Ramayya Pantulu v. Kutti and Rao (Engineer) Ltd. : (1949)1MLJ231 & Kandan Textiles Ltd. v. Industrial Tribunal, Madras, : (1949)NULLLLJ875Mad .

8. Both the learned State Prosecutor. & Mr. V. S. Chandrasekharan, appearing for the State & the Cinema employees union, respectively have contended that the trend of authority outlined by us above should not be followed in view of the decision of the F. C. in India Paper Pulp Co., Ltd. v. India Pulp Workers Union, 12 F. L. J. 367 : (A. I. R.1949 P. 0. 148). Their Lordships of the F. C. in that case have laid down that Section 10(i), Industrial Disputes Act, does not require that the particular dispute should be mentioned in the reference by the Govt. to the tribunal. All that is necessary is that the existence of the dispute & the fact that the dispute is refd. to the tribunal should be clear from the order. It is further held that when a reference is attacked on the ground that it is not a reference according to law, the Ct. has to read the order as a whole & determine whether in effect the order makes such a reference. The order of the West Bengal Govt. which culminated in the award that was impugned before the F. Ct, is printed at p. 368of the report. There also all that is stated is that an industrial dispute has arisen between the India Paper Pulp Co. Ltd..... & their dischagedworkmen, etc. In considering whether an award passed on such a reference is valid or not, his Lordship the learned Chief Justice of India observes as follows :

'On behalf of the applt., it was contended that there was no jurisdiction in the Industrial Tribunal to decide anything because firstly, no dispute was refd. to the Tribunal. This is admittedly a technical defence & is based on the wording of the order of the Govt. of West Bengal dated 3-1-1948. In this connection it was pointed out that the Order of 3-1-1948, of the Govt. of West Bengal did not mention any industrial dispute. Secondly, the order, as worded, was only an order of appointment & there were no words of reference to the Tribunal. It was argued that the words 'and it is expedient that the said dispute should be refd. to a tribunal' did not constitute a reference ; they were in the preamble & did not form an operative part of the order. The order is far from satisfactory & is not carefully drafted. Section 10(1) of Act XIV [14] of 1947 provides as follows: 'If any industrial dispute exists or is apprehended the appropriate Govt. may by an ordet in writing. . , . (c) refer the dispute to a tribunal for adjudication,' The section does not require that the particulardispute should be mentioned in the order. It is sufficient if the existence of a dispute & the fact that the dispute is refd. to the tribunal are clear from the order. To that extent the order does not appear to be defective. Section 19 of the Act however requires a reference of the dispute to the tribunal. The Ct. has to rend the order as a whole & determine whether in effect the order means such a reference.'

Though the judgment of their Lordships of the F. C. was delivered on 30-3-1949 we find no reference to the same in the judgment of this Ct. in Kandan Textiles Ltd. v. Industrial Tribunal Madras, : (1949)NULLLLJ875Mad which was delivered on 26 8-1949. But it is contended by Mr. Jayarama Aiyar that it is possible to distinguish the observations of his Lordship the Chief Justice of the F. C. because in the case before the F. G. the dismissedworkmen claimed reinstatement on the ground that their services were illegally terminated & therefore there was actually a dispute in existence between the employer on the one hand the trade union of which the dismissed workmen were members on the other. In the present case it is contended that there is nothing to show that the employees of the Prabhat Talkies made any demand on the management of the talkies which was not acceeded to or that any of the employees of the Prabhat talkies wanted the trade union to take up their matter with the labour Comr. The award of the arbitrator shows that the Prabhat talkies was represented before him & that the representative stated that the employees have passed resolutions to the affect that they are content with their service conditions & that there was no matter for adjudication in regard to them. In a separate judgment which my learned brother is about to deliver, he had discussed in extensive detail how the judgment of their Lordships of the F. C. is not applicable to the facts of the present case. Though atthe outset, prima facie, I felt that it is not possible to distinguish the circumstances which brought about the award considered by the F. C. after perusing my learned brother's judgment I am inclined to agree with his conclusions that the trend of decisions of this Ct., exemplified in the three cases refd. to by me above has not been overd by their Lordships of the F. C. I. therefore, do not propose fco examine the applicability of that case in any detail, contenting myself with agreeing with my learned brother's conclusion on this point.

9. Our conclusion that the award is void & inoperative is reinforced by the fact that by Act, XII [12] of 1949 the Legislature intervened to declare as valid, awards of the kind which have become invalid & inoperative on account of the reference not being based upon any tangible industrial dispute. Act XII [12] of 1949 itself contemplates, though not explicitly but by implication, that the present award which is mentioned as the second item in the schedule cannot be enforced on account of H. C. proceedings. It seems to us, therefore, that the contention of the learned advocate for the trade union as well as the State Prosecutor that the decision of the F. C. in India, Paper Pulp Co. Ltd. v. India Paper Pulp Workers Union would go to show that the invalidity of the award which would necessarily follow from the decisions of this Ct. cannot be taken into account, cannot be sustained. The State Prosecutor realised that it would be futile to contend-about the validity or justifiability of the award in question in view of the amending legislation; but the counsel for the trade union maintained a contrary position & urged vehemently that the award must be held to be valid. He based his contention not only on the applicability of the F. C's. judgment but also on the fact that the award has not been set aside & should be held, therefore, to be correct. Basing his argument on the principle-that an executing Ct. cannot go behind the decree, Mr. V. S. Chandrasekharan pointed out that unless the award had been set aside or quashed by proceedings of this Cfc. it remains valid & current unlike the awards which have been set aside by decisions of this Ct. He invited our attention to the various decisions like Lakshmanan v. Chidambaram : AIR1935Mad236 , The Villupuram Urban Co-operative Bank v. Balasubramania : AIR1938Mad809 & other well-known & familiar cases to show that a Ct. before which a decree is sought to be executed cannot question the correct, ness of it at all. On the other hand, the principle of law is well known & very familiar that it is open to the executing Ct. to find out whether the decree, on the face of it, is void & refuse to execute it; e.g., a decree passed against a dead person or a decree passed by a Cfc. which has no territorial jurisdiction over the properties concerned &other; instances. In this case, since we have held that the reference itself was ultra vires & without the pre-requisite of the existence of a dispute between the employers & workmen, the award cannot be said to be one which can be enforced & should, therefore, be deemed to have been void. Farther the Bench of this Ct. in In re Laksh-manan Chettiar, : AIR1950Mad835 quashed the proceedings of a criminal case initiated as a result of an invalid award which has not been set aside by proper legal proceedings Subba Rao & Pancha-pakesa Aiyar JJ., interfered under the revisional jurisdiction of the H. C. to quash the proceedings instituted before a criminal Ct. under Section 29, Industrial Disputes Act, for prosecuting an employer for non-implementation of an award which was invalid for want of jurisdiction, of the arbitrator on account of the absence of a dispute. Even there the award had not been set aside by proper proceedings before this Ct. We are inclined to agree with the learned Judges that even if no proceedings had been taken to set aside the award it is possible to quash the criminal proceedings instituted on foot of it, if it is found that the award is the result of conferment of jurisdiction which did not pass on to the arbitrator on account of the absence of any dispute between the contesting parties.

10. The second line of argument on which the initiation of proceedings has been justified by the counsel for the trade union as well as the State Prosecutor is that even if the award was void & inoperative, Sections 5 & 6 of Act XII [12] of 1949 which amended the Industrial Disputes Act (Act XIV [14] of 1947) have made the awards mentioned in the schedule thereunder current & valid for a period of one year from the commencement of that Amending Act. It is clear from a reading of those sections that wherever the Ct. has declared awards to be invalid & inoperative on account of the fact that no existing dispute was refd. to them, such awards are invalid as a result of the decision of the Ct. But awards on exactly similar basis which have not been quashed or set aside by proceedings in Ct. have been declared to be current & valid by Section 6. It seems to us that the Legislature, in validating awards which have not been quashed by Cts. & invalidating awards which though apparently are void but have not been so declared by Cts., has discriminated between persons to whom the same set of circumstances applied, & therefore offended Article 14 of the Constitution, which provides for equality before the law or the equal protection of law for all persons. Though the Legislature recognised, that the awards are invalid, it has afforded protection to persons who have approached Cts. & have secured declarations that awards based on the same footing as those which have been legislatively held valid are not current & valid.

11. The expression 'equal protection of the laws' which occurs in the 14th Amendment ofthe United States Constitution has been explained in several decisions of the Cts. of the United States. 'Equal protection of the laws' means that all persons & business similarly situated, shall be treated alike. See Hall's Constitutional Law, p. 136. At p. 478 of Mathews 'Book on the Constitution of the U. S. A.' we find a discussion of this phrase. In Tick Wo v. Hopkins, (1886) 118 U. S. 356, Mathews J., of the S. C. in delivering the opinion of the Ct. has held that though a law be fair on its face & impartial in appearance, yet if it is administered by public authority with an evil & unequal hand so as practically to make illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice 13 still within the prohibition of the Constitution. See also p. 86 of the American System of Govt. by Ferguson & McHenry, 1st Edn. where the subject of equal protection of the lawa is discussed. The learned author says that the test is whether the classification is reasonable & appropriate. If it is, then every one within each group must be treated alike. Willoughby on the Constitution of the United States, vol. III 2nd Edn. p. 1931, discussing the case in Yick Wo v. Hopkins, 118 U. S. 356 observes that the law or the ordinance, though upon its face discriminat-ing, was held void for the reason that it gave to designated officials, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked & arbitrary power to give or withhold consent not only as to places but as to persons.

12. In Truax v. Gorrigan, 257 U. S. 312, Taft C. J., considered the question about the validity of an Act of State Legislature which prohibited interference by injunctions in disputes between employers & employees concerning the terms or conditions of employment & came to the conclusion that the impugned law resulted in the recognition of one set of actions against ordinary tort-feasors & another set against tort-feasors in labour disputes. It is there held that if employers were denied the right to obtain injunctions while such a right was permitted to the employees, then there was the denial of equal protection of laws to one set of persons placed in similar circumstances. What the prohibition against the denial of equal protection of the laws to all persona situated in similar circumstances connotes is that all persons subject to such legislation shall be treated alike under like circumstances & conditions both in the privileges conferred & in the liabilities imposed. See Hayes v. Missouri, (1887) 120 U. S. 68. Applying these principles to the interpretation of Article 14 of the Constitution, one thing is clear that Madras Act, XII [12] of 1949 discriminates between such employers aa have got a decision from the H. C. in a different manner from those that have not. In other words, though the Act envisages that awards, including the one under consideration, are void & inoperative, still because the persona affected by the award have not availed themselves of the remedy allowed by a writ of certiorari they should stand on a different footing from those who have so availed themselves of the remedy. That is, if the Act is considered in relation to employers then it discriminates favourably with respect to such of them who bad recourse to a Ct. of law & affects unfavourably such of those who did not obtain a quashing order though the awards in both categories, are void & inoperative. Conversely the Act discriminates between employees against whom the award has been set aside & those against whom it has not been though the awards in both the cases are void. If the award is void because no tangible dispute was refd. to the arbitrator, it does not become more void by being quashed by proceedings in Ct. Therefore, all awards passed under similar circumstances some of them declared void by Ct. while others are not so declared, stand on the same footing. It is, therefore, clear that Act XII [12] of 1949 is a discriminatory piece of legislation which deprives some of the persons situated in the same position from the beneficient effects whereas others who are situated in the same position are conferred those benefits. On this aspect of the case, our conclusion is that though at the time Act XII [12] of 1949 was passed it could not have been held to be invalid on account of the discrimination contained therein, after 26-1-1950, in view of Article 13(1) of the Constitution which says that all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this part, shall to the extent of the contravention be void, it has to be held that the legislation is inconsistent with Article 14, equality before law, & is therefore void.

13. Under Article 372 of the Constitution read with Article 13 all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by a competent Legislature. This is subject to the provision that such laws shall not be repugnant to the Constitution. Therefore, even if Act XII [12] of 1949 is not void but is valid & operative, still it has to be considered whether in virtue of the provisions contained in Section 107, Govt. of India Act, re-enacted in a similar form in Article 254 of the Constitution, the Amending Act, viz., Act XII [12] of 1949 can have any validity or not. At the time Act XII [12] of 1949 was passed the Govt. of India Act 1935, as adapted by the India (Provisional) Constitution Order, 1947, was in force. Section 107 of that Act related to inconsistency between Dominion laws & Provincial or State laws. What was enacted there was if any provision of a Provincial law is repugnant to any provision of a Dominion law, which the Dominion Legislature is competent to enact or any provision of an existing law with respect to one of the matters enumerated in theConcurrent List, then subject to the provisions of the section, the Dominion law, whether passed before or after the provincial law, or, as the case may be, the existing law shall prevail & the provincial law to the extent of the repugnancy be void. We find a similar provision in Article 254 as well. We are pressed with the argument that s, 5 of Act XII [12] of 1949 is inconsistent with & diametrically opposite to Section 10(1), Central Act XIV [14] of 1947. Section 10(1) postulates the existence or the apprehension of an industrial dispute which can be refd. to a tribunal for adjudiction. That is, the appropriate Govt. must have, before it, an existing industrial dispute or should feel that an industrial dispute is apprehended. In such a case it gets jurisdiction to refer the dispute, existing or potential, to a tribunal. But Section 5 of Act XII [12] of 1949 validates action taken by the tribunal even in cases where no dispute was referred to the tribunal in accordance with the Act. In other words, Section 5 envisages & sets the seal of approval on, an award passed by a tribunal without the necessary pre-requisite of a dispute either existing or ap-prehended so as to form the basis for a reference. It seems to us that if, without any kind of dispute, an appropiate Govt. refers possible, contingent & future likely disputes to a tribunal & an award is passed on such contingent matters, still such an award will be valid according to Section 5 of the Madras Act. It need hardly be said that Section 5 of the Madras Act XII [12] of 1949 is inconsistent with Section 10(1) of the Central Act of 1947. The re-j suit necessarily follows that by the appln. of Section 107, Govt. of India Act, 1935, & Article 254 of the Constitution the Act which ought to prevail is the earlier Dominion law, i e. Section 10(1) of Act XIV [14] of 1947 should prevail & it should be deemed as if Section 6 of Act XII [12] of 1949 has not been passed at all. The existing provision of law when Act XII [12] of 1949 was passed waa Section 10(1) of Acfe XIV [14] of 1947 & as such it should prevail. Madras Act XII [12] of 1949 in its preamble enunciates that it is expedient to amend the Industrial Disputes Act 1947, in its application to the province of Madras for the purposes appearing thereafter & the Act itself is styled 'an Act to amend the Industrial Disputes Act, 1947, in its application to the province of Madras.' Such being the case, the effect & operation of the Amending Act on the principal Act has to be considered. Delivering the judgment of the Judicial Committee in Union of South Africa v. Simmer & Jack Proprietary Mines, (1918) A. C. 591 at : (87 L. J. P. C. 117), Lord Sumner observes thus at p. 596 of the Report :

'In the opinion of their Lordships, it is not a legitimate interpretation of mere amending provisions to hold that they completely alter the character of the principal law unless clear language is found indicating such an intention. The amending words, wide as they are, do not evince any intention to make so radical a change as would be involved if there were thrust into powers to regulate future operations, a solitary power, etc.'

Then again at the very outset of the judgment, at p. 595, the following sentence occurs with regard to the amending Act: 'The latter amended the former, & is to be read aa one with it' Therefore the principle of law is clear that amending statutes should be read as parts of the original statutes & if that is so, the new Section 5 of Madras Act XII [12] of 1949, if it is to be read along with Section 10(1) of Act XIV [14] of 1947, would be contradictory to the earlier provision & if a statute contains two such contradictory provisions it is left to the Ct. to infer from a reading of the other provisions of the statute, which ought to prevail.

14. To the decision in In re Veerabadrayya, : AIR1950Mad243 one of us was a party & there at p. 680, the scope & effect of an Amending Act is considered & it is there laid down that an Amending Act is not an independent Act but an Act passed with a view to effect an improvement or to more effectively carry out the purposes for which the original law was passed. Sections 5 & 6 of Madras Acb XII [12] of 1949 cannot, therefore, be considered as valid provisions of legislation because their effect is not to amend an existing Acts. It might be to add to the original statute certain provisions, but such additions have tended to make the provisions of the existing statute, viz., Act XIV [14] of 1947, unworkable,

15. The learned counsel for the resp. trade union contends that Act XII [12] of 1949 is both an amending as well as a validating Act & that Sections 5 and 6 constitute a separate Act so far as the State of Madras alone is concerned & therefore the Act should be read as a composite one. Where legislative fields are concurrent between two Legislatures, the question has often arisen aa to whether when an Act passed by the superior Legislature is amended or added to by the inferior Legislature, the additions & amendments together with the original enactment; should be deemed to be the statute law prevailing within the area where the subordinate Legislature functions. For example, the Gourt-fees Act of 1870 which applied to the whole of India was amended with the concurrence of the Governor General in Council during the time when Govt. of India Act, 1919, was in force by the difference (sic) levying c.-f. on different standards & separate methods of computation. In such cases it has been understood that in so far as the area over which the subordinate Legislature has sway, the additions or amendments together with the original statute would be considered to be the governing enactment. Understood in that way, there is no difficulty in incorporating Sections 5 & 6 Madras Act XII [12] of 1949 into the framework of Act XIV [14] of 1947 if Sections 5 & 6 of the Madras Act are neither repugnant nor contradictory to the provisions of the existing statute, i. e., Act XIV [14] of 1947. To that extent the contention of the learned counsel for the reaps. is acceptable but the difficulty is that here Sections 5 & 6 of theMadras Act as we have held already, cannot be said to fit into the framework of the original statute as they seem to be repugnant & contradictory to the provisions of Act XIV [14] of 1947.

15a. Another alternative argument put forward by Mr. K.S. Jarayama Aiyar is that Act XII [12] of 1949 is invalid because it is not within the legislative competence of the province of Madras to legislate for a subject like the industrial disputes. He relies upon the following expression in Section 107(1), Govt. of India Act, 1935: '... with respect to one of the matters enumerated in the concurrent Legislative List.' The matters enumerated in the Concurrent List regarding Labour Legislation are Entries 27 & 29 in List III, Schedule 7, which are equivalent to Entries 24 & 22 in List III, in Schedule 7 to the Indian Constitution. Entry 27 in List III Govt. of India Act is as follows :

'Welfare of labour ; conditions of labour; provident funds; employer's liability & workmen's compensation; health insurance, including invalidity pensions; old age pensions.'

Entry 29 relates to trade unions ; industrial & labour disputes. Therefore, if Act XII [12] of 1940-is a legislation wish respect to one of the matter enumerated in the concurrent List, then the Provincial Legislature has power to enact the law. But Mr. K.S. Jayamara Aiyar contends on the authority of the observations of the P. C. in Attorney General, Saskatchewan v. Attorney-General, Canada (1949) 2 M. L. J. 80 : (A. I. R. 1949 P. C. 190) where the P. C. interpreted the words 'in relation to' when dealing, with provisions of the British North America Act, that Madras Act XII [12] of 1949 cannot be considered to be 'with respect to a matter' enumerated in the Concurrent list. He also invited our attention to Satischandra v. Sudhir Krishna : AIR1942Cal429 , where the words 'with respect to' have been defined. The learned Judges observed that the words 'with respect to' mean 'on the subject of'. Therefore, the question has to be decided as to whether Act XII [12] of 1949 is 'on the subject of' the two entries refd. to by us above in List III, Govt. of India Act of 1935. We see no difficulty whatever in holding that Madras Act XII [12] of 1949 is a legislation 'on the subject of' industrial & labour disputes. But it is contended that in pith & substance Act XII [12] of 1949 is intended to validate an invalid statute though it indirectly touches an industrial dispute & as such it cannot be said to be a legislation 'on the subject of' industrial disputes. We are unable to accede to this argument. Oar conclusion is that the argument of the learned counsel does not lend any support to the plea that the Provincial Legislature, as it then was, had no power to enact the Act in question.

16. The further argument advanced by the learned counsel for the petnr. which was discussed at some length in the order of reference to this Bench by Somasundaram J. deserves a more detailed consideration & that is that the prose-cution is not maintainable because the offence complained against the petnr. is the result of ex post facto legislation which is void under Art, 20 of the Indian Constitution. Mr. Chandrasekharan forthe resp. union wants to draw a distinction between what is prohibited in Articles 20 & 21 of the Indian Constitution & what the framers of the American Constitution enjoined upon the Congress & the States not to attempt to legislate. The distinction as put in this way. The Indian Constitution only prohibits a person from being convicted of an offence which was not an offence at the time it was committed. The emphasis is therefore, more on the aspect that nobody shall be convicted, though legislation to that effect can be passedmaking offences ex post facto punishable. It is pointed out that Article 1, Section 9, Sub-section (3) of the Constitution of the U. S. A. which reads 'no bill of attainder or ex post facto law shall be passed' completely prohibits the passing of an ex post facto law. According to the learned counsel the Indian Constitution does not put a restraint upon the passing of the law but tbe prohibition is against a person being convicted by an ex postfacto law. It is not necessary for us, for the purposes of this case, to express any definite opinion as to whether there is in fact any real distinction between the ideas & objects sought to be inculcated in the Constitution of the U. S. A. & our country. In the view which we have takenthat Act XII [12] of 1949 is ultra vires, the question of ex post facto legislation does not arise. We had to consider the question of ex post facto legislation in In re Velayudam, : AIR1950Mad324 & there we have held that there is no prohibition so far as such legis-lation was concerned prior to 26-1-1950, whatever might be said as regards such legislation subsequent to the inauguration of the Republic of India. Mr. Jayarama Aiyar invited our attention to the observations contained in a number of decisions on this point : See Bex v. Austin, (1913) 1 K. B. 551 : 82 L. J. K. B. 387 & The Queen v. Griffiths, (1891) 2 Q. B. 145 . If our viewhad been that Sections 5 & 6 of Act XII [12] of 1949 were valid, then we would have held that what the Amending Act did was not to create any new offence but to cure the illegalities that existed before, & as such cannot be called retrospective legislation. The penal provision remained unchanged & that was Section 29 of the original Act & what the Amending Act did was to declare that it was not competent to call in question the award on the grounds of its invalidity. It cannot be said that keeping current & valid awards, which would otherwise have been invalid, for one year from 14-6-1949 an ex post facto legislation which violatedArticle 20 of the Constitution. If the award was valid, then it would remain in force for one year from 14 6-1950 & the non-implementation of itbetween those two dates is the violation of a law then in force, viz., Section 29 of Act XIV [14] of 1947 & as such is punishable.

17. The further contention of the learned counsel for the petnr. is that the omission or commission, which makes the non-implementation of the award an offence, was committed when the act was done or the omission was made & on the authority of London County Council v. Cross, (1892) 61 L. J. M. C. 160 & Beachardas v. Emperor A. I. R. 1930 Bom. 340 : 31 Cr. L. J. 1159, these offences cannot now be made punishable. We fail to see how these authorities are of any relevancy to the facts of the present case. Both the cases dealt with circumstances of quite a different nature & it is unnecessary for us to discuss those two cases in any detail for our present purpose. For the reasons given above we are of opinion that the award on which the charge sheet was filed being without jurisdiction & its enforce-ability not having been properly justified by Acb XII [12] of 1949, it is open to the petnr. to contend that the Mag. has no jurisdiction to entertain the charge sheet.

18. But it is argued on behalf of the trade union as well as by the State that this Ct. should not interfere & quash the charge under its inherent powers & that Section 561-A, Criminal P. C., is not intended for circumstances like this. It has been held by this Ct. in Ramanathan v. Sivarama, 47 Mad. 722 : A.i.r. 1925 Mad. 39 : 25 Cr. l. J. 1009 & Re Kuppusami Aiyar, 39 Mad. 561: (A. I. R. 1916 Mad. 408 : 16 Cr. L. J. 477 & other cases that a charge sheet which the Ct. had no jurisdiction to entertain could be quashed under Sections 435 & 439, Criminal P. C., & therefore the proper remedy should be an appln. for revn. under those sections. A F. B. of this Ct. in Thiruven-gadasami v. Municipal Health Officer', Karai-kudi : (1949)1MLJ488 has considered the question as to the limits under which an accused person can question the order of the statutory body, the failure to comply with which has been the foundation of the prosecution. It is there held that if, on the face of it the order that has created the offence is illegal, or if the statutory body made the order without jurisdiction, then the accused can question it when the prosecution is launched. We have already found that the award was made without jurisdiction & therefore it is open to the accused person to contend that the prosecution launched under it is not sustain-able. Cases of this Ct. have held that questions regarding the jurisdiction have to be taken in the earliest stage & that is what the petnr. has done here. See the observations in Mistry In re : (1949)2MLJ44 where one of us has stated that an appln. for quashing proceedings on the ground of want of jurisdiction ought to be moved at the earliest possible opportunity. Sections 435 & 439, Criminal P. C., ordinarily contemplate the approach to this Ct. at a stage when the trial Ct. has done something in continuation of the charge. We are not satisfied that the petnr. has to wait until something is done before this Ct. is moved.

19. Consistently with the reasoning advanced above, we conclude that the filing of the charge sheet was based upon an award, which itself was without any jurisdiotional foundation, & therefore the learned Mag. has no justification for proceeding with it. The proceedings are, therefore, quashed.

20. Certificate to appeal to the S. G. granted to the State under Article 132 of the Constitution.

Basheer Ahmed Sayeed, J.

21. My learned brother has elaborately dealt with all the points that arise for consideration in this petn. in his well-considered judgment & as I entirely agree with him there is no necessity for me to traverse the same grounds. The only point on which I wish to make a few observations is on the main question viz., as to how far the award, the alleged violation of which has resulted in the initiation of criminal proceedings against the petnr. can be said to be valid & binding on the petnr.

22. The learned counsel for the petnr. has relied upon several decisions of this Ct. reported in Ramayya Pantulu v. Kutty & Rao (Engineer) Ltd., : (1949)1MLJ231 , Kandan Textiles Ltd. v. Industrial Tribunal, Madras, : (1949)NULLLLJ875Mad , Lakshmanan Chettiar In re, : AIR1950Mad835 & the Calicut Hosieries, Calicut In re, : AIR1950Mad231 in support of his contention that the order of reference is without jurisdiction & the award consequently is inoperative & invalid & the non-compliance thereof cannot form the subject-matter of a criminal prosecution against the petnr. The effect of these decisions has been discussed at length by my learned brother & I need not take time in considering their application to the facts of the present case. But as against these decisions, the learned State Prosecutor & the learned counsel for the South India Cinema Employees Assocn. have invited our attention to the decision of the F. C. reported in India Paper Pulp Co. v. India Paper Pulp Workers Union , on which they placed great reliance for their contention that the order of reference made by the Govt. & the award passed thereon are in accordance with Section 10(1), Industrial Disputes Act, 1947, & therefore Section 29 of the said Act applies to the case & that the prosecution for non-implementation of such an award is therefore justified. But a careful perusal of the said decision would show that, on the facts of the present case, it does not lend any support to the con-tention of the learned State Prosecutor & the learned counsel for the trade union. In that case, the order of reference issued by the Govt. of West Bengal clearly seta out that there was an industrial dispute between a particular company, namely, the India Paper Pulp Co. Ltd., Managing Agents, Messrs. Andrew Yule & Co. Ltd., 8 Clive Road, Calcutta, & their discharged workmen whose names were mentioned in the list annexed to the reference, as represented by the India Paper Pulp Workers Union, & that it was expedient that the said dispute should be referred to the tribunal under the Industrial Disputes Act, 1947, & so forth. The order of reference is extracted at p. 368 in the report refd. to above. A reading of that order makes it abundantly clear that there was in existence an industrial dispute between a particular firm of employers & its discharged workmen. Apart from mentioning the name of the particular employers the names of the discharged workmen are also given in the order of reference & it is also stated therein that those discharged workmen are represented by the India Paper Pulp Workers Union. The order also conveys clearly to one's mind that the dispute that existed between the employer & the employees related to the discharge of certain workmen. It is evident, therefore, from the order of reference in that case that there was existing a definite dispute between a particular employer & a certain specified number of workmen of that firm. Yet, while considering an order of reference of this kind, their Lordships of the F. C. were constrained to observe thus :

'The order was far from satisfactory & it was not carefully drafted.' Quoting Section 10(1) of Act XIV[14] of 1947, their Lordships have further observed as follows : 'The section does not require that the particular dispute should be mentioned in the order. It is sufficient if the existence of a dispute & the fact that the dispute is refd. to the tribunal are clear from the order. To that extent the order does not appear to be defective. Section 19 of the Act, however, requires a reference of the dispute to the tribunal. The Ct. has to read the order as a whole & determine whether in effect, the order makes such a reference.'

23. Applying the test laid down in the above observations to the order of reference of the Madras Govt. now under consideration by us, it will be found that the order of reference does by no means, make it clear that any industrial dispute exists between the petnr. before us & his workmen. On the other hand, it only says :

'The Commr. of Labour has reported that an industrial dispute has arisen between the workers & the managements of the Cinema Talkies in the Madras City, that the parties to the dispute are unable to arrive at an amicable settlement & that the dispute may be refd. for adjudication.'

The terms quoted above clearly do not refer to any industrial dispute having arisen between the petnr. before us & his workmen. Even the elaborate notfn. that has been published in the Fort St. George Gazette in pursuance of the above order does not improve matters except that para, 2 thereof gives the direction to the tribunal to have a preliminary enquiry to settle issues for adjudication. It is true that according to the decisions of the F. C., Section 10(i) of Act XIV [14] of 1947 does not require that the particular dispute should bementioned in the order, But that decision does lay down that it would be sufficient, if the existence of a dispute & the fact that the dispute is refd. to the tribunal are clear from the order. Can it be said that the order now under consideration or the notfn. in question is clear on the point of the dispute between the petnr. & his workmen? Analysing the order of reference of the Madras Govt. now under consideration it is obvious that there is no mention of the existence of any dispute between the petnr. & his workmen. It will be seen that even the name of the petnr. does not find a place in the order of reference; nor are the names of the employees of the petnr's, business mentioned in the order, as it found to be the case with the order of the Bengal Govt. in the case cited above. The order under consideration does not by any means make ifc clear that any dispute does at all exist between this particular petnr. & his workmen, nor does it make it clear as to what the nature of the dispute is that is sought to be refd. to the tribunal. A mere mention in the most general terms that a dispute has arisen between the workers & the managements of the several talkies doing business in the Madras City as a whole without any particular reference to the petnr. & his workmen cannot be said to be an order of the kind contemplated under Section 10, Industrial Disputes Act, 1947. It is too vague & too general to be made applicable to any particular case, with reference to which there must be in existence a definite dispute between an employer & his employees. The scheme of the Act seems to be intended to devise a machinery to settle disputes arisen or apprehended, & it postulates that for a settlement of such disputes, there must be two definite parties & a definite dispute must exist between them, so as to be dealt with by a tribunal. Any amount of probing into the order of reference now in question, gives us no idea whatsoever as to whether there is any dispute at all between the petnr. before us & his workmen; nor does it put the reader on notice as to what that dispute relates to. On the other hand, as a matter of fact, we have been told at the Bar & it is also corroborated by the details given in the award itself that most of the workmen of this partisular petnr. are paid much more than what has been recommended by the award & that their treatment is also more generous than what is contemplated under the award. See pp. 74 to 76 & the appendices to the award. There is also reference in the award to the fact that the workmen had passed resolutions expressing their satisfaction with the conditions of service & the treatment accorded to them by the petnr. As against this, a reading of the order of reference that was the subject-matter of the F. C. decision, India Paper Pulp Co. v. India Paper Pulp Workers Union conveys a clear idea as to a definite dispute, its nature & existence, & the parties between whom the dispute exists. Itcannot be denied that these particulars are completely absent in the order of reference & the notfn. that is now under consideration by us.

24. In this connection we were, however, requested to look, along with the order of reference, into the letter of the Comr. of Labour, Madras, C.8-7611/45 dated 13-5-1947, which is refd. to in the said order of reference & which is claimed to form part & parcel of that order. We have carefully perused the said letter of the Comr. of Labour dated 13-5-1947 addressed, to the Joint Secretary to Govt. Development Dept., Madras. We think it may be useful to extract the said letter in its entirety for purposes of discussion, The letter reads as follows:

'The South Indian Cinema Employees Assocn. submitted a memo, on 8-11-1946 in which the workers-demanded increased wages & dearness allowances, annual bonus of three months' wages, increased leave facilities, provident f und & the adoption of proper procedure in imposing punishments. The representatives of the employers & the employees Assocn. met me on several occasions when the demand of the workers were discussed, & finally on 28-4-1947 the following suggestions were made by me to the employers,

(i) Minimum wages of Rs. 15 for scavengers, gardeners etc., Rs. 20 for watchmen & Rs. 25 for ticket collectors. & door checkers etc.;

(ii) grant of increments to all other class of workers (operators, etc.) by direct negotiations between the employers & employees in respect of each theatre;

(iii) A minimum dearness allowance of Rs. 15 for all classes of workers;

(iv) Grant of ten days' holidays with pay in a year in addition to the weekly holiday;

(v) Adoption of proper procedure in taking disciplinary action against workers (viz., framing of charges, taking of explanation in writing, & service of orders in all cases of punishments.)

The Union officials were advised to accept the above terms & to await the enactment of the Shops & Establishments Bill.

The managers of the Minerva Talkies, Prabhat Talkies, Broadway Talkies, Kinema Central, Saraswati Talkies & the drawn Talkies have agreed to accept the suggestions made by me. The managements of the other talkies in the city have not yet reported to me their acceptance of the term suggested by me.

The representatives of the Union met me on 13-5-1947. & reported that the Employees assocn. has decided to goon strike any day after 30-5-1947 if the following demands are not conceded:

(1) Employees of all categories working in cinemas be given a new grade of salaries with a fair basis minimum as per our memo ;

(2) Employees be given a bonus of three months salary at the completion of each year's service;

(3) Employees be allowed to have the benefit of 15 days casual leave & 30 days privilege leave in the year;

(4) In lieu of pension, a provident fund be started by every establishment, the employers contributing an equivalent contribution to the fund;

(5) Employees be given one day's wage for each extra show (other than matinee shows on Saturdays & Sundays).

(6) Employees be relieved of their work on weekly & other holidays by the employer having adequate staff;

(7) Employers be forbidden to sell cinemas or theatres to any party without taking into consideration the staff maintained by them as part of the selling contract by which the purchaser may keep on the staff by compulsory obligation;

(8) The service of the employees should be confirmed immediately after three months of service;

(9) The employees be privileged to earn & enjoy theregular increment in fair graded scales of salaries & be also eligible for promotions automatically;

(10) No employee shall be dismissed or discharged from service unless a proper charge is made out by the employer & an enquiry be held thereof of which there shall be an official of the Union present.'

As the employers have not accepted even the minimum terms suggested by me & as the employees are reative, apprehend that they may strike work at any time. I, therefore, suggest that the above demands made by the workers may be refd. to a,n Industrial Tribunal for adjudication I have advised the workers to defer further action on their notice, pending the orders of Govt.

Sri Diwan Bahadur K.S. Ramaswami Sastri, Eetd. Dist. & Ses. J. (Royapettah High Road, Madras) or Sri N. Balarama Reddi, Retd. Dist. & Ses. J., (8/11 Ganran Smith Road, Cathedral Post) may be appointed as the sole member of the Special Industrial Tribunal to adjudicate on this dispute.'

25. It will be seen from a perusal of this letter of the Labour Comr. that he sets out in the first instance that the South Indian Cinema Employees Assocn. submitted a memo, to the Labour Comr. in which the workers demanded increased wages, dearness allowance, annual bonus, etc. It may be mentioned incidentally that this South India Cinema Employees Asaocn. is said to have on its rolls only about 370 & odd members, who are workers in the 24 cinemas having business in the city of Madras & in the other cinemas in the entire state of Madras. It is obvious that it does not represent the entire body of all the workers of the cinemas & it is also not claimed that it represents the majority of the workers in the cinema houses either in the city of Madras or outside the city. 'The Assocn. appears to be a Provincial Assocn., as its name indicates & the membership extends to the entire State but there are no figures made available to us about the actual number of cinemas in the entire State & the number of workmen employed. The fact, however, remains that the South Indian Cinema Employees Assocn. which has figured as one of the parties to the reference in question represented only 15 out of the 43 workers of the Cinema belonging fco the petnr. before ua on the date of the reference by the Govt. However, on the submission of the said memo, the Comr. would appear 60 have called for a meeting of theemployers on several occasions, when the first demands of the workers were discussed, & finallyon 28-4-1917 as many as five suggestions were made by the managements of the 24 cinema houses in the City & at the same time, the union officials were said to have been advised to accept the above terms & to await the enactment of the Shops & Establishments Bill. In the next place the letter of the Comr. definitely states that six of the managements of the cinema houses among whom the petnr. before us is also one, agreed fco accept the suggestions made by the Comr, & that the other managements of the talkies in the city had nob reported fco him their acceptance of the terms suggested by him. This statement of the Comr. makes it clear that the dispute, if any, which might have existed between the workmen of thepetenr.'s cinema & the petnr. himself had been settled by the petnr.'s ready & willing acceptance of all the terms suggested by the Comr. There was thus no further scope for the existence of any dispute, & therefore, the letter of the Commr. does not proceed fco set out any further dispute between the petnr. & his employees on any points. But the matter was not left there & the Labour Comr. proceeds next to mention that the representative of the Union met the Comr. on 13-5-1947 & reported that the Employee's Assocn. had decided to go on strike on any day after 30-5-1947, if the ten demands mentioned by them in their report & enumerated in the Comr.'s letter were not conceded. Immediately thereafter, the Labour Comr. would appear to have come to the conclusion fchafc very moment, fchafc as the employers had not accepted even the minimum terms suggested by him & as the employees were restive, he apprehended fchafc the workmen might strike work at any time. By the phrase 'minimum terms' in the Comr.'s letter must be meant the terms offered by the Comr. & refd. to in the earlier part of his letter. If this were so, there is a slight inexactitude in the statement of the Comr., when he fails to make a distinction between the petnr. & five others who agreed to his terms & the rest of those who did not report such acceptance. Immediately thereafter, i.e., on the same day, viz., 13-5-1947, & without further ado, he thought it fit that the demands made by the workers should be refd. to the Industrial Tribunal for adjudication. It is, however, obvious that when the Comr. stated that the employers had not accepted even the minimum terms suggested by him, it could have reference only to those employers other than the pefcnr. & five other employers refd. in the earlier parfc of the Com's, letter. For, the petnr. was not one of those who had not accepted the minimum terms suggested fco the Comr. for the reason that the earlier parfc of the order had clearly set out that the petnr. was one of the six employers who had agreed to accept the suggestions made by the Comr. There is nothing in the letter of the Comr. which would indicate that these demands made by the South India Cinema Employees Assocn. were refd. to the respective owners of the cinema houses in the City of Madras as a body or to any of them individually. In any event, there is nothing fco show that any reference of the demands of the South Indian Cinema Employees Assocn. dated 13-5-1947 had been made to the petnr. nor is it contended that these demands have so much as even brought to the notice of the petnr. or, any other of the employers in the City of Madras. In the absence of any such notice of the demands fco the petnr., or the other employers, or any opportunity having been given fco the pefcnr. or the other employers to have their opinion expressed on the demands, or even to disouss the same with the Labour Comr. & the Employees Aasocn., it is simply inconceivable tohold that there was any dispute or apprehension of a dispute between the petnr. & his employees. For a dispute to arise, the two parties, viz., the petnr. & his workmen, must both come into con-flict & a difference must ensue therefrom. The letter of the Comr, does not indicate that such was the case between the petnr. & his workmen. The letter of the Comr., therefore, far from supporting the case of the State Prosecutor that it discloses the existence of a dispute, proves the contrary & demonstrates beyond doubt that there could have been absolutely no difference, & no dispute whatsoever between the petnr. & his workmen represented by the Assocn. It will be improper to assume that a dispute can come into existence by a onesided demand or a unilateral action of one of the parties, which demand or action has neither been refd. to the other party nor even communicated to that party & in respect of which there was no opportunity, nor any occasion for the other party to express any view or indicate any positive or negative relation thereto. Unless a specific dispute is postulated between a particular employer & his workmen which calls lor a settlement by reference to a Tribunal it is difficult to imagine how an award of the kind now under consideration which does not relate to any dispute existing or apprehended between the particular employer & his workmen can be said to be an adjudication binding on the particular employer, however wide the scope of the reference or the award may be in its application.

26. Such being the case, it cannot be said that the order of reference taken as a whole & read along with the letter of the Comr. dated 13-5-1947 addressed to the Joint Secretary to Govt. indicates clearly the existence of any dispute between the petnr. & his workmen & that it was such a dispute that was being refd. to the Industrial Tribunal. On the other hand, it will not be far wrong to say that the order of reference is not merely most unsatisfactory, in that it is couched in vague & general terms without making it clear as to the particular parties & the specific dispute between them, which is referred to the tribunal, but is also ill. conceived in that it does not conform to the requirements of or the spirit underlying the Industrial Disputes Act. In this view, we are constrained to hold that the facts which formed the basis of the decision of the F. C. in India Paper Pulp Co., Ltd v. India Paper Pulp Workers Union are clearly distinguishable from the facts that arise for consideration in the case be-fore us. As has already been pointed out, when there was no dispute between the pefcnr. & his employees in existence at all, there can be no question of any reference being made & consequently there was no jurisdiction for the Govt. to exercise its powers under Section 10, Industrial Disputes Act. That there was actually no dispute in existence or apprehended as between the petnr. & hisemployees for being refd. to any tribunal, also-receives further confirmation from the observations made in para. 43 of the award itself. A reading of this para, would go to show that the whole-ease of the so-called existence of any dispute between the petnr. & his employees or its apprehension is entirely given up & this justifies our view that there was no dispute & therefore no jurisdiction whatsoever for the Govt. to make any reference of the kind in question. The form in which issue 2 has been framed, by the Industrial Tribunal also points to the same conclusion, viz., that in fact there was no dispute to be refd. to a tribunal so far as this petnr. was concerned. If, therefore, there waa no jurisdiction to make any reference, it follows that the whole reference & the award are both invalid & not binding on the petnr. It was this apprehension of the situation. & of the invalidity of the reference & the award that compelled the Govt. to move the Legislature to enact an Amending or Validating Act, viz., Act XII [12] of 1949 the constitutionality of which, has been considered very fully by my learned brother & I entirely agree with the reasoning & conclusions he haa arrived at that the Madras-Amending Act, Act XII [12] of 1949, is ultra vires the Constitution in that it offends against Article 14 & other provisions of the Constitution.


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