(1) This is a petition for the issue of a writ of certiorari to quash an order of the Labour Court, Coimbatore passed in an industrial dispute between the petitioner--the management of Thambi Motor Service, Salem,--and the workers.
(2) The industrial dispute related to matters concerning two workers, Irusappan and Manickam. The workers had been in the service of the petitioner--management from about 1951. While so their service had been terminated in July 1955 for alleged misconduct. Thereafter the union raised an industrial dispute which in the first instance went before the Labour Officer for conciliation. As the result of the goods offices of this Official a settlement was brought about under which the two workers were re-entertained in service as and from 21-9-1956. This agreement specifically mentioned that the workers were taken back without the benefit of back wages. Subsequently these two workers were retrenched from service. The propriety of this retrenchment was challenged by the union who raised a dispute and as no conciliation could be effected by the Labour Officer the matter was placed before the Government.
(3) On 31-10-1957 the Government of Madras referred the industrial dispute between the petitioner management and the second respondent Union for adjudication of the Labour Court, Coimbatore. The annexure to this Government Order set out the dispute in the following terms: 'What retrenchment compensation, if any, are the workers Irusappan and Manickam entitled to.' From the terms of the reference it would follow that the only point for adjudication by the Labour Court was the quantum of compensation to which the workers would be entitled, which could only be on the basis that the retrenchment was justified. The reference was received by the Labour Court on 6-11-1957, and by the notice dated 10-11-1957, the management and the union were directed to file their statements.
(4) When the union was appraised of the terms of the reference, a communication was addressed by it to the Government on 9-11-1957, requesting that Government might reconsider their previous reference and modify the same so as to enable the Labour Court to adjudicate upon the propriety or justification of the retrenchment, which their original reference precluded the Labour Court from doing. The Government, however, by their order dated 15-11-1957, informed the Union that they saw no reason to modify the terms of the reference, and that their original reference would stand. The Union, however, did not drop the matter but made a further representation on 19-11-1957 to the Government.
In view of the correspondence with the Government, the Union did not file the statements which were required to be filed by the Labour Court and the matter was thus dragging on. Finding that the representations to the Secretary to the Government did not result in a modification of the terms of reference, the Union addressed a communication straight to the Labour Minister on 18-11-1957. This bore fruit and on 12-12-1957, the reference to the Labour Court was amended and the dispute referred as amended was directed to read 'Whether the retrenchment of clearers Irusappan and Manickam was justified and to what relief they are entitled and to compute the relief in terms of money if it can be so computed?'
(5) The Union filed their claim statement on 23-12-1957 and as by that date the reference had been amended the points urged related mainly to the justification or propriety of the retrenchment.
(6) In the counter statement filed by the management, the legality of the order of the Government in amending the reference already made was challenged, and it was submitted that the same was beyond the jurisdiction of the Government on a proper interpretation of Sec. 10 of the Industrial Disputes Act. There were other points raised about the merits of the petitioner's claim to which I shall advert later.
(7) The Labour Court considered this question of the jurisdiction of the Government to amend the reference originally made and overruled the objection of the management. The first point urged by the learned counsel for the petitioner was that the order of the Labour Court overruling the objection was erroneous, and this was the principal point that was argued before me in this petition. In reaching the conclusion adverse to the petitioner, the Labour Court had relied upon a decision of the Punjab High Court, the Textile Workers Union, Amristar v. State of Punjab, , for the position that the power of the Government to cancel, amend or modify a reference already made was on the terms of S. 10 plenary.
Learned counsel for the petitioner pointed out that this decision of the single Judge of the Punjab High Court had been expressly overruled by the Supreme Court in State of Bihar v. D. N. Ganguly, : (1958)IILLJ634SC . In this last decision their Lordships of the Supreme Court have expressly held that S. 21 of the General Clauses Act which permits the inference of a power to add to, amend, or vary, rescind any notification, order or rule could not be applied to a power of the sort conferred by S. 10(1) of the Industrial Disputes Act. It is unnecessary to set out the reasons upon which the decision of the Supreme Court is rested, but it is sufficient to say that they have denied any power to Government not merely to cancel but also amend or modify a reference once made under S. 10(1) of the Act.
(8) In paragraph 21 of their judgment however their Lordships have excepted from the scope of their decision cases where the Government do not modify but add to a reference already made. Their Lordships' attention had been drawn to the decision of a Bench of this court in South India Estate Labour Relations Organisation v. State of Madras, : AIR1955Mad45 where this court had upheld the validity of an amendment of a reference by which new items were added to the disputes which had already been referred to a Tribunal, Venkatarama Aiyar J. dealing with the objection based on the absence of a power in Government to modify a reference already made said,
'The objection is one of form and is without substance. It would have been open to the Government to make under Sec. 10 an independent reference concerning any matter not covered by the previous reference. That it took the form of an amendment to the existing reference and not an additional reference is a mere technicality which does not merit any interference in these proceedings.'
It is obvious that the inclusion of additional items to the matters to be adjudicated upon by an Industrial Tribunal would be not the exercise of a power to amend an existing but rather of a power to make a reference in respect of other disputes. This judgment of this court was expressly referred to with approval by the learned Judges of the Supreme Court.
(9) The question, therefore, for consideration now is whether the amendment effected by the Government Order of 12-12-1957, is really an additional reference or is in truth and substance a variation or modification of the previous reference. Before dealing with this matter, I consider it convenient to refer to the precise facts which were brought up for consideration by this court in : AIR1955Mad45 . The original order of reference was dated March 1952, and it referred for adjudication 8 items of dispute in relation to the staff and 6 items of dispute in relation to workers.
The reference was amended in June 1952. There was no variation as regards the six items of dispute with the workers. Only two items of dispute--relating to gratuity and bonus--which were originally treated as disputes between the management and the staff were directed to be adjudicated as dispute between the management and the workers also. Certainly this would be in the nature of a reference of an additional dispute regarding the workers and would not constitute any modification of an existing reference in the sense in which that expression is used in the judgment of the Supreme Court. There were three more changes effected in the items of dispute referred. In the original order of reference there were two items of dispute between the management and the staff, which were numbered as 6 and 7.
These were deleted from among the points of dispute between the management and the staff but were stated to be disputes between the management and the workers. The question as to whether the cancellation or deletion of the dispute so far as regards the staff was concerned was not challenged before this court, and this the staff alone could do. In so far as the items were referred for adjudication between the management and workers, they would be certainly new items which were added and so well within the power recognised by the Supreme Court. Lastly a new item of dispute as regards the terms of employment of maistries was added as part of the dispute between the workers and the management. This again would fall within the same principle. The above analysis would show that in : AIR1955Mad45 , there was no modification of the terms of any reference, but only an addition of new items of disputes referred for adjudication.
(10) The question to be considered, therefore, is whether the amendment effected by the reference dated 12-12-1957, constituted a modification of the original reference of October 1957. Learned counsel for the petitioner submitted that the original order of reference proceeded on the basis that the retrenchment of the workers was justified, whereas this position was negatived by the second order of reference, and that consequently it fell within the prohibition laid down by the Supreme Court in the decision already cited. I consider this argument well founded and I accept it.
Learned counsel for the respondent urged that the second reference was really a case of an addition of a new item falling within the exception on which the decision of the Bench of this court was rested. There is no doubt that if the first matter referred for adjudication did not touch any dispute relating to retrenchment the addition of such an item would be within the power of the State Government. But the facts here were different. The first reference did include a dispute regarding retrenchment. It required the Tribunal to assess the compensation due to the workers, consequent on the retrenchment.
This could only be done if the retrenchment was justified. If therefore the first reference directed the Tribunal to proceed on the basis that the retrenchment was in order,--legal and justified--and the second order directed the Tribunal to entertain a dispute touching the justification and legality of the order of retrenchment, it appears to me that this could not but be a modification of the original order of reference.
(11) The same point might be viewed from another angle. On the first reference the Tribunal was bound to compute the retrenchment compensation due to the workers by applying the provisions of S. 25--length of service etc.--to the facts of the case. The Tribunal would not, however, embark on this enquiry if on the second reference it found that the retrenchment was unjustified. The relief that could be awarded to the workers would be entirely different. This would plainly demonstrate that the two references were or would be inconsistent with each other, and that in substance the second reference not merely added to but superseded the first. I am, therefore clearly of the opinion that the amendment effected by the reference of December 1957 could not be given effect to unless the Government were vested with a power to cancel, modify or amend the first order of reference and as it is conceded that the Government did not have such a power the reference in question must be held ultra vires. This might suffice to set aside the award of the Tribunal. But in view of the fact that other points have also been urged before me, I shall record my findings on them.
(12) The first of these points was that the Tribunal erred in computing the services of the retrenched workers as from the date of their original entertainment in service, and not from September 1956, when on the mediation of the Labour Officer they were re-entertained or re-employed. It is conceded that in the compromise which resulted in the re-employment of the workers, there was no clause which denied to the workers continuity of service whereas the right to back wages and allowance was expressly negatived. The Labour Court has on a consideration of this circumstance as well as those surrounding the conciliation, reached the conclusion that continuity of service was not intended to be denied to the re-employed workers. I see no reason to question the correctness of this finding of the Tribunal. But even if the Tribunal committed any error it was not of such a nature as to be interfered with by this court in proceedings under Art. 226 of the Constitution.
(13) If this finding stood it is conceded that the rule laid down in S. 25-G of the Industrial Disputes Act that the retrenchment should be of those who had come last would have been violated. There was also some argument about the merits of the conduct of the workers which led to the termination of their services. But this is wholly a question of fact and cannot be seriously put forward in this court.
(14) In view, however, of my conclusion on the first point about the incompetency of the reference, I hold that the Tribunal had no jurisdiction to entertain or proceed upon the reference dated 12-12-1957 and its award based on it must accordingly be set aside.
(15) The petition succeeds and the rule nisi is made absolute. The award of the Tribunal is set aside. No order as to costs.
(16) Rule made absolute.