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Raju's Cafe and Ors. Vs. the Industrial Tribunal and Anr. (01.12.1950 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 4409 of 1950
Judge
Reported inAIR1951Mad865; (1951)ILLJ219Mad; (1951)1MLJ236
ActsIndustrial Disputes Act, 1947 - Sections 10(1)
AppellantRaju's Cafe and Ors.
RespondentThe Industrial Tribunal and Anr.
Appellant AdvocateK. Bhashyam and ;T.R. Srinivasan, Advs.
Respondent AdvocateThe Adv.-General for the Govt. Pleader and ;C.K. Viswanatha Aiyar, Adv.
DispositionApplication allowed
Cases ReferredRamayya Pantulu v. Kutty
Excerpt:
labour and industrial - reference - section 10 (1) of industrial disputes act, 1947 - award challenged on basis of invalid reference - reference as per details provided by industrial tribunal - tribunal ought not have supplied such details - reference of dispute to such tribunal violative of principles of natural justice and set aside. - - (by order of his excellency the governor .2. annexure 1 contained a list of 85 hotels situated in erode, coimbatore, pollachi, ddumanlpet, tiruppur & puliampatti, divided into three classes a, b & c, & annexure ii contained 11 items of matters in dispute, namely, (1) wages, (2) dearness allowance, (3) bonus, (4) provident fund, (5) gratuity, (6) house rent, (7) holidays, (8) medical facilities, (9) best room, (10) appointment through employment.....rajamannar, c.j.1. on 9-4-1948, the govt. of madras by g. o. no. 1791 development, made a reference under section 10(1)(c), industrial disputes act, 1947, to the industrial tribunal having its place of sitting at coimbatore, of an industrial dispute, which had arisen between the workers & managements of hotels in the whole of the coimbatore district in respect of certain matters, for adjudication. the notfn. did not mention the hotels by name; nor did it specify the matters in respect of which an industrial dispute had arisen. the introductory part of the g. o. referted to a report from the comr. of labour, but no further light is thrown on the matter, because that report is stated to be only to the effect that an industrial dispute had arisen between the workers & managements of the.....
Judgment:

Rajamannar, C.J.

1. On 9-4-1948, the Govt. of Madras by G. O. No. 1791 Development, made a reference under Section 10(1)(c), Industrial Disputes Act, 1947, to the Industrial Tribunal having its place of sitting at Coimbatore, of an industrial dispute, which had arisen between the workers & managements of hotels in the whole of the Coimbatore district in respect of certain matters, for adjudication. The notfn. did not mention the hotels by name; nor did it specify the matters in respect of which an industrial dispute had arisen. The introductory part of the G. O. referted to a report from the Comr. of Labour, but no further light is thrown on the matter, because that report is stated to be only to the effect that an industrial dispute had arisen between the workers & managements of the hotels in the whole of the Coimbatore district in rospect of certain matters & that the parties to the dispute were unable to arrive at an amicable settlement. The industrial tribunal sent notices inter alia to the hotel owners' sangam, Coimbatore, & the Goimbatore district hotel workers' union. On 10-8-1948 the workers' union addressed a letter to the Tribunal praying for time to prepare their demands. On 14-8-1948 the union filed a preliminary statement setting out the history of the alleged dispute & the demands to be adjudicated upon. The hotel owners' sangam, Goimbatore, filed a counter statement attaoking the validity of the reference, the representative character of the workers' union, & denying that the tribunal had jurisdiction to proceed with the enquiry. Apparently because of the decision of this Ct. in Ramayya Pantulu v. Kutty & Rao (Engineer) Ltd. : (1949)1MLJ231 , the Govt. considered it advisable to issue a fresh reference. How & on what material they acted will be set out later. On 15-3-1949 the Govt. issued another notfn which runs thus :

'Whereas indusrial disputes have arisen between the workers & managements of the hotels in Goimbatore district mentioned in Annexure I to this order in respect of matters mentioned in Annerure II to this order :

And whereas in the opinion of His Excellency the Governor of Madras it is necessary to refer the said disputes for adjudication :

Now, therefore, in exercise of the powers conferred by Section 10(1)(c), Industrial Disputes Act, 1947 (Central Act XIV [14] of 1947), & in supersession of the orders issued in Developmtnt Department's Notln. No. 363, dated 9 4-1948 published on p. 3J3 of Part I of the Fort. St. George Gazette dated 20-4-1948 His Excellency the Governor of Madras hereby directs that the said industrial disputes be referred for adjudication to the industrial tribunal having its place of sitting at Coimbatore.

(2) The Comr. of Labour is requested to send copies of this order to the managements & workers' unions concerned.

(By order of His Excellency the Governor .....'

2. Annexure 1 contained a list of 85 hotels situated in Erode, Coimbatore, Pollachi, Ddumanlpet, Tiruppur & Puliampatti, divided into three classes A, B & C, & annexure II contained 11 items of matters in dispute, namely, (1) Wages, (2) Dearness allowance, (3) Bonus, (4) Provident fund, (5) Gratuity, (6) House rent, (7) Holidays, (8) Medical facilities, (9) Best room, (10) Appointment through employment exchange, (11) Dismissal. Thereupon the prior reference was treated as closed, & there were fresh statements filed before the Tribunal by the Hotel owners' sangam & the Hotel Workers' Union. The Tribunal, after an enquiry, passed its award on 17-3-1950, which contained the following provisions : (1) the basic wages of all the hotel workers were to be revised from 1-1-1949 as stated in para. 22 of the award.The hotels were divided into three classes, namely, Class A comprising hotels with a daily turnover of Rs. 250 & more, Class B of hotels with a daily turnover of Rs. 100 & more but less than Rs. 250, & Class C of hotels with a daily turnover of less than Rs. 100. The employees were divided into four classes, namely, skilled A, skilled B, unskilled A & unskilled B & different rates of wages were fixed for each class, (2) a wife & children's allowance was to be paid to all married workers as from 1-1-1949, namely, every married worker was to get an allowance in the three classes of hotels of Rs. 10, &, further, in class A hotels only, there was to be an allowance of Rs. 6 for each child (for two children), (3) bonus was to be paid to the workers according to the length of their service as specified in para. 24 of the award. The arrears of wages, allowance & bonus should be paid in three equal monthly instalments, the first instalment becoming payable in three weeks from the publieation of the award. The method of classification was indicated. By order No. 1390 (Development) dated 6-4-1950 the Govt. declared the award to be binding on the managements of the hotels in Coimbatore district & the workers employed therein & that the award shall remain in force for a period of one year. The award was also duly published in the Fort St. George Gazette. This appln. is by the proprietors of 18 hotels in Coimbatore to quash the reference & the award as being ultra vires & illegal. Mr. K. Bhashyam Aiyangar, who appeared for the appcts. challenged the validity of the reference on several grounds. He also contended that, in view of the events which led up to the second reference, the particular Industrial Tribunal should not have adjudicated on the dispute. He also urged that the award went beyond the reference in certain particulars.

3. The first ground on which he contended that the reference was invalid was that an omnibus reference of alleged industrial disputes between several managements & the workers employed by them is not contemplated & warranted by the provisions of Section 10, Industrial Disputes Act. Closely related to this contention is the other contention that the reference is vague & general in that it does not specify the nature of the disputes between the employers & the workmen in each hotel.

4. Section 10(1) of the Act runs thus :

'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 be connected with or relevant to the dispute to a Ct. for inquiry ; 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 so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.'

Learned counsel relied on the words 'any industrial dispute' & the words 'refer the dispute' in support of his contentions. In Ramayya Pantulu v. Kutty & Rao (Engineer) Ltd : (1949)1MLJ231 , there was a general reference of industrial disputes which had arisen between the workers & managements of certain engineering firms & type foundries & of industrial disputes which were apprehended in therest of the engineering firms & type foundries in respect of certain matters. There was no reference to any specific disputes between any group of workers & managements; nor was there any specification of the firms in which disputes betweea the management & workers existed. Such a reference was held to be invalid on the ground that the result of such a reference may be to foster disputes where there were none & also on the ground that before making a reference under Section 10(1), the Govt. must have reason to believe that in a particular business a definite dispute is known to exist or is apprehended. The learned Judges observed :

'... before concluding that a dispute is apprehended, the Govt. must necessarily have known that certain demands were being made by workers in a particular firm & that the management of that firm were not inclined to comply with those demands & that an industrial dispute was therefore likely to arise . . . When a notfn. is issued & a reference made to a Tribunal, the Govt must have in mind some dispute that has actually happened or one that is likely to arise from circumstances known to the Govt.' .

The learned Judges were also of the opinion that the nature of the dispute between the management & the workers must be set out just as it would he set out if a reference were made to an arbitration in an ordinary civil dispute. There should be sufficient specification for the Tribunal to know what the matter was into which it was necessary to enquire. They said :

'If that is not done, the Govt. is inviting workers & managements to put forward claims which have never been in dispute & which were not in the contemplation of the Govt. when they issued the notfn. It seems to us front the general purport of the Act that a responsibility lies upou the Govt. of considering the existence & the natures of a dispute & to exercise their mind & decide whether it is necessary to refer that dispute to a Tribunal for an award.'

In The Calicut Hosieries, Calicut In re, : AIR1950Mad231 , one of us followed this ruling & held that a reference of certain disputes between certain hoisery factories in the Province of Madras & the workmen employed therein was illegal. In The Kadan Textiles Ltd. v. The Industrial Tribunal, Madras, : (1949)NULLLLJ875Mad , though the reference was not a general reference in respect of several managements, the D. B. of which one of us was a party agreed with the observations of the learned Judges in Ramayya Pantulu v. Kutty & Rao (Engineer) Ltd : (1949)1MLJ231 cited above. In Lahshmanan Chettiar, In re 1950 1 M. L. J. 219, another D. B. of which one of us was a party held a similar reference to be invalid.

5. There can be no doubt that the first reference by Govt. on 9-4-1948 was a totally incompetent reference according to the decisions above mentioned, but the second reference was an improvement on the first in that it gave a list of 85 hotels & a list of items of dispute. The question is whether this fact takes it out of the scope of these decisions. If the Govt. had before them material to conclude that in respect of each of the 85 hotels there were disputes as regards each of the 11 items mentioned in Annexure II to the reference between the management & the workers, we do not think that a single reference would be incompetent. It will be a case of joinder of several references into one comprehensive reference to the same Tribunal. Even if separate references had been made in respect of each firm to the same Tribunal, obviously all the references would have been heard & disposed of together as certaincommon points would arise for determination.

6. Reference was made by the learned Advocate-General to the decision of the F. C. in India Pulp Co. Ltd. v. India Paper Pulp Workers' Union, (1949) 11 P. C. E. 848 : A. I. R. 1949 P. C. 148 & it was contended that the decisions above mentioned should not be followed as they were inconsistent with the decision of the F. C. The reference in that case was not a general reference, but reference of an industrial dispute which had arisen between a company & certain discharged workmen whose names were mentioned in a list annexed & who were represented by the Workers' Union. That decision, therefore, was not even remotely concerned with the question whether a general omnibus reference of a series of disputes between several firms & their workmen was valid. But it was said that the decision is authority for the position that the particular dispute referred to the Tribunal need not be mentioned in the reference. We have again carefully considered the ruling & we areconvinced that it is not an authority for the position that there could be a reference by the Govt. under Section 10(1) of the Act without specifying the dispute referred. A D. B. consisting of Govinda Menon & Basheer Ahmed Sayeed JJ. had occasion to deal with the effect of this decision in a recent judgment (not yet reported) in C. P. Sarathy v. State of Madras, Cri. M. p. No. 1278 of 1950 : : (1951)ILLJ148Mad & they came to the conclusion that the trend of decisions of this Ct. had not been overruled by their Lordships of the F. C. Wo do not propose to deal elaborately with this question as we are in entire agreement with the reasoning in that judgment. We wish, however, to add that a reference to the report of the arguments of the counsel for the applts. in that case as found in the authorised F. C. Eeports (vol. XI) at p. 349makes it quite clear that the contention pressed before the F. C. was a wholly technical one & not substantial. The argument was that as the order meaning thereby the operative words of the order, excluding the preamble, only purported to appoint a Tribunal & did not refer any dispute to that Tribunal; there was no valid reference. The preamble portion of the order in clearest terms referred to the nature of the dispute & the parties to the dispute, but it was contended that this was only the preamble & it was not the operative part of the order. It is this contention of the applts. that is summarised thus by the learned Chief Justice of India at p. 355:

'On behalf of the applts. it was contended that there was no jurisdiction in the Industrial Tribunal to dtcide anything because, firstly, no dispute was referred 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 o! 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 wore no words of reference to the Tribunal. It was argued that the words and it is expedient that the said dispute should be referred to a Tribunal', did not constitute a reference; they were in the preamble & did not form an operative part of the order.'

After remarking that the order was far from satisfactory, & was not carefully drafted, the learned Chief Justice held that it was sufficient if the existence of a dispute & the fact that the dispute was referred to the Tribunal are clear from the order, & the Ct. has to read the order as a whole & determine whether in effect the order makes such a reference. It will, therefore, be seen that the decision of the F. C. has no bearing whatever on the questions arising before us in this appln., nor on the questions decided in the four cases in this Ct. mentioned above.

7. The first reference, therefore, must be held to be an invalid reference. Otherwise it is very doubtful if the Govt. would have the power to supersede that reference & make a fresh reference in respect of the same subject-matter. As the first reference is invalid, the position is as if there had been no such reference & the second reference was in effect the first & only reference. The question which now falls for decision is whether the reference of 15-3-1949 is bad for any reason. It is not certainly such a general & indefinite reference as the references which came up for consideration in Ramayya Pantulu v. Kutty & Rao (Engineer) Ltd : (1949)1MLJ231 , the Calicut Hosieries, Calicut, in re, : AIR1950Mad231 , Lakshmanan Chettiar, In re 1950 1 M. L. J. 219 & Cri. M. P. No. 1278 of 1950 : : (1951)ILLJ148Mad . In those references the names of the firms were not mentioned: nor was there a list of the disputes between the employments & the workers. That is not the ease with the reference in question. It does give a list of the hotels & it doea give a listof the disputes. What Mr. Bhashyam Aiyangar contends is that there cannot be a wholesale clubbing of several hotels & mention of every conceivable kind of dispute as if in respect of each of the hotels in regard to every one of the items mentioned in Annexure II there were disputes between the employment & the workers. We do not agree with Mr. Bhashyam Aiyangar that there is anything inherently wrong in such a clubbing if there is substantial justification for such a course. Supposing there are disputes in several hotels between the management & the workmen as to the number of hours of work, we see no reason why there should not be a single reference of this dispute which is common to several hotels & the workmen employed therein.

8. The question, therefore, resolves itself to an examination of the facts of this case to ascertain if there was material on which the Govt. could have come to the conclusion that in respect of all the 85 hotels mentioned in Annexure I there were disputes between the employments & the work-men in regard to every one of the matters mentioned in Annexure II. Even if there be some material on which the Govt. could have reasonably come to a conclusion, it is not for this Ct. to substitute its opinion for that of the Govt. But if it is manifest that the Govt. did not or could not have material to come to that conclusion, then obviously the reference would be bad. In this connection we may quote from one of the earlier decisions of this Ct. in Kandan Textiles Ltd. v. Industrial Disputes Tribunal, Madras, : (1949)NULLLLJ875Mad , the following passage:

'Obviously, the Govt. before it makes an order under this provision mast be satisfied that the industrial dispute which is being referred for adjudication exists or is apprehended & the Govt. should have material before it to form an opinion that an industrial dispute exists or is apprehended. .... It is incumbent upon the Govt. to apply its mind to the relevant material placed before it before deciding that an industrial dispute exists or is apprehended & making an order under Section 10(1) of the Act.'

As to what happened before the Govt. made the second reference there is practically no dispute, as it can be gathered from the files sent up to us by the Industrial Tribunal. Soon after the judgment of the D. B. in Ramayya Pantulu v. Kutty & Rao (Engineer) Ltd : (1949)1MLJ231 the Govt. decided to issue fresh orders in the case of all pending consolidated references in respect of disputes existing or apprehended in certain firms of a particular description. In their Memo. dated 28-1-1949 they wanted the Industrial Tribunal, Coimbatore, to send immediately, if possible, a list of units or firms concerned in which disputes exist or are apprehended & which should be named in the new orders & also indicate the issues common to all such firms which should be adjudicated & which should be mentioned in the new orders. This information was called for regarding the disputesbetween the workers & managements of the hotels in the whole of the Goimbatore district. The Inustrial Tribunal replied to the Govt. immediately that he hed got from the local Labour Officer lists containing a total of about 1020 hotels, that he ad also received a statement of demands on behalf of the Hotel Workers' Union & the reply thereto from the Hotel Owners' Sangam, that it was not possible just then to state in which of hese hotels there were disputes existing or were apprehended & that there must be quite a large number of small concerns in which probably there was no dispute, & that he was asking representaives of the workers Union & the Hotel owners' Sangam to find out from them which were the hotels in which there were disputed existing & in what hotels disputes were apprehended. The industrial Tribunal was evidently of opinion that inquiries should have to commence dt novo, because all that had been done so far must be deemed to have been done without jurisdiction in view of the judgment of the H. C. & also because a long time had elapsed since the first reference & there might be change of conditions in some cases. On 3-2-1949 the Industrial Tribunal addressed a letter to the Secretary, Hotel owners' Sangam, Coimbatore, asking him to meet him at his office at 8-30 a.m. on 15-2-1949 as he wanted to ascertain the particulars of the hotels in which disputes were actually existing or were apprehended & the points on which there were disputes. He appears to have addressed a similar letter to the Secretary of the Coimbatore District Hotel Workers' Union. On the 15th, nothing happened, & the matter was adjourned to the 22nd on which date the Secretary of the Workers' Union furnished lists of hotels. The Secretary of the Sangam did not file any list. The lists filed on behalf of the Workers' Union included hotels from different parts of the district. Thereupon, on 2 3-1949, the Industrial Tribunal addressed a communication to the Govt. in which he stated that the Goimbatore District Hotel Workers' Union had given him a list but the representative of the Hotel Owners' Sangam had not furnished any list of his own, & that it would be enough to include the hotels mentioned in the accompanying list in the notfn. to be published by Govt. He also gave a list of 11 points in dispute. He also sent a copy of the demands given to him by the workers' union. The list of hotels given by the workers' union was also sent as an enclosure to this letter. On receipt of this communication the Govt. passed the order of 15-8-1949 making the reference. The list of the hotels in Annexure I is the list supplied to the Industrial Tribunal by the workers' union, & the points in dispute set out in Annexure II are the points mentioned by the Industrial Tribunal in his letter of the 2nd March.

9. An the outset we cannot help expressing our surprise at the procedure followed by the Govt. One would have thought that in the normal courseof things the Govfc. would have called for full in- formation whiah they desired to obtain from their officers in the Labour Department & not from a Judicial Tribunal like the Industrial Tribunal. The Industrial Tribunal in its turn who could not be expected to go about making enquiries from each hotel proprietor all over the district contented himself with isauing notices to the Secretaries of the workers' union & the Hotel owners Sangam, Coimbatore. The Workers Union supplied a list, but the Hotel owners' sangam did not supply any list. The Industrial Tribunal did not himself verify the correctness of the list supplied by the workers' union in the sense that on enquiry he found that there was a dispute which bad arisen between the management & the workers in each of the hotels mentioned in the list. There is no need to speculate on this matter, because the Industrial Tribunal explains his conduct at length in his award. This is what he says :

'A number of general references had been made by Govt. & one of these was taken to the H. C. in Kutty & Rao's case 1949 1 M. L. J. 219 : A.I.R. 1949 Mad. 616 & the H. C. held that such references were invalid in law .. . Govt. naturally asked the Tribunals to furnish the information required for the issue of a fresh order of reference in compliance with the decision of the H C. in Kutty A Rao's case 1949 1 M. L. J. 219: A.I.R. 1949 Mad. 616. I called upon both the parties to file lists of hotels in which disputes were admitted or alleged to exist. The Union filed a list but the Secretary of the Sangam did not. He could have said that no disputes existed in any hotel or that the list submitted by the Union was not correct. Bat he did nothing & when the Sangam knew that a list had been filed by the Union & they did not choose to contradict what was stated in the list, I assumed that they agreed that the list was correct & so I supplied the information to Govt. on which this reference is based.'

10. It is therefore clear that the reference made by the Govt. on 15-3-1949 was entirely based on information supplied by one of the contesting parties, namely, the workers' union. There was no attempt to verify the lists. The Govt. never applied their mind to the truth or otherwise of the assertion on behalf of one of the parties. How utterly unreliable was the information supplied to the Govt. on the basis of which alone they made the reference, became clear at the enquiry. Here again we shall give an extract from the award,

'I asked the parties to state definitely whether there were disputes or not in the hotels specified in the Annexure I to the Govt. notfn. Both parties produced statements signed by the workers, one set to say that there were no disputes & another set that there were disputes. The Union agreed that out of the 85 hotels mentioned in the annexure, they were not in a position to prove that disputes existed in 41 & so these 41 may be excluded from the scope of the enquiry.'

Further on we find the following :

'At the time of the argument therefore. Sri P. Bala-gangadhara Menon, who appeared for the workers, said that the hotels in Pollachi & Erode may be left out of the scope of the enquiry because he had no satisfactory evidence that demands were served on the proprietors in those places. So at present only 25 hotels in Coimbatore remain & even out of these Venkatesa Lodge (A class, item 1), Subramania Vilas (B. Class item 8), & Hotel Vasantham (B Class item 5) havi. to be eliminated. Theother 22 hotels to whom the award applies are shown in the annexure to this award.'

We cannot help remarking that the issue of the notfn. & the scope of the enquiry appear to have been determined by the Workers' Union rather than by the Govt. or by the Industrial Tribunal.

11. It is obvious from the above statement of facts that the Govt. in making the reference, bough it purported to act under Section 10(1) of the Act, was really making the reference on the appln. of the workers only. Now a special provision has been made in regard to a reference on such appln, by one of the parties to a dispute & that is Section 10(2), rat the Govt. could not have made a valid eference under this provision unless they were latisfied that the persons applying represent the majority of the particular party. It was conceded before us by learned counsel appearing for the workers' union that ha could not say that the workers' union represented the majority of the workers in the hotels in the district. In fact we do not have any information as to how many workers in the several hotels mentioned in Annexure I of the reference are members of the Union. The Govt. must be therefore held to have done something which they could not have done directly in an indirect way. The reference in question was not made on the subjective satisfaction of the Govt. of the existence or apprehension of an Industrial dispute, but merely on the representation of one of the interested parties & that too on unverified information which subsequently proved to be substantially incorrect, because out of 85 hotels over 60 hotels were omitted from the enquiry.

12. The new Sub-section (2A to Section 10) inserted by the Industrial Disputes (Madras Amendment Act, 1949, (XII [12] of 1949) is based on the principle laid down in the several decisions of this Ct. above mentioned that there should not be a wholesale reference in respect of several concerns without a specification of particular disputes in particular establishments. The new sub-section runs thus :

'Notwithstanding anything contained in Sub-sections 1 & 2 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 the majority of workmen concerned may refer the dispute to that Tribunal.'

If this procedure had been followed what would have happened is this. There would have been a Tribunal constituted for the adjudication of disputes in the hotel industry. Then, if a dispute arises or is apprehended in any hotel or if there is a general collective dispute between the workers on the one hand & the employers on the other, either the employers or a majority of the workmen would have straightway referred that particular dispute to the Tribunal.

13. On behalf of the Workers Union Mr. Viswanatha Aiyar relied upon certain resolutions passed at a conference of hotel workers on 26-10- 1947which according to him were forwarded to the Hotel Owners' Sangam. Assuming this was so, we do not think that by a mere communication of resolutions passed at a conference it can be said that an industrial dispute has arisen or is apprehended calling for an adjudiaation by a Tribunal. It may be that if the workmen in a particular hotel actually make demands on the management concerned in accordance with theseresolutions, an amicable settlement may be arrivedat, or it may be that the dispute may have to be adjudicated upon. There is no evidence in this case & it is not suggested that there were disputes in each of the 85 hotels mentioned in Annexure I to the Govt. Order. The learned counsel pressed before us the argument which evidently found favour with the Tribunal that the essence of the matter was that there was evidence of a collective demand & a collective bargaining & not whether individual workers asked the proprietor for this or that relief. The Industrial Tribunal found that, though there was a conference of hotel workers, it was not proved that demands were served on individual hotel owners. If so, we failto see how it can be said that there was a dispute, because a dispute implies a demand & a refusal. Wo are therefore compelled to hold that thereference dated 15-3-1949 was incompetent &invalid.;

14. In this view, it is not necessary to pronounce finally on a very attractive contention raised by Mr. Bhashyam Aiyangar the learned counsel for the petnrs. namely, that before the Govt. could make a reference under Section 10(1) of the Act, the procedure indicated in Section 12 of the Act should be followed. Section 12 provides that where any individual dispute exists or is apprehended, the conciliation officer may, or where thedispute relates to a public utility service & a noticeunder Section 22 has been given, shall hold conciliation proceedings in the presaribed manner. If a settlement of the dispute is arrived at, then he shall send a report to the Govt. together with a Memo. of the Settlement signed by the parties to the dispute. If no such settlement is arrived at the conciliation officer has to send to the Govt. a full report setting forth the steps taken by him & thecircumstances relating to the dispute together with a full statement of facts & circumstances & the reasons on account of which, a settlement could not be arrived at. If on a consideration of the report the Govt. is satisfied that there is a case for reference to a Board or Tribunal, it may make such reference. The argument of the learned counsel was that such a report from the conciliation officer is a condition precedent for the Govt. to take power to make a reference under Section 10(1) of the Act. Admittedly there was no such report in this case. Though there is much to be said in support of this procedure on grounds of policy, we are of opinion that the language of the enact-ment does not support the contention. UnderSection 12, in the case of disputes in non-utility concerns the conciliation officer may take steps but may not. The position then would be that, in spite of the existence of a real dispute, the Govt. would be powerless to make a reference under Section 10(1). If the intention of the Legislature had been that before the Govt. coull make a reference under Section 10(1), the conciliation procedure should be compulsorily resorted to, then the provisions would have run differently. The conciliation officer would then have been compelled to make attempts to settle the matter & send his report within a prescribed time & it would have been Speaifically mentioned in Section 10(1) that the Govt. may, after considering the report of the conciliation officer make a reference. In the absence of such provisions, we cannot place any restriction on the power undoubtedly conferred on the Govt. under Section 10(1) of the Act to make a reference whenever in its opinion there is a dispute or an apprehension of a dispute.

15. Nor is it necessary to deal with the other contention of Mr. Bhashyam Aiyangar for the petnrs. that the Govt. acted illegally in making the reference to the very same tribunal which had reported to the Govt. about the alleged existence of disputes, as such a course was opposed to the principles of natural justice. A different tribunal must have been constituted, because the present Tribunal was practically the complainant & the informant & therefore could not act as the adjudicator. In the award there is a reference to this argument & the following opinion of the Tribunal :

'I do not think that the supply of information as regards the parties arrayed before the Tribunal or to bej arrayed would in any sense amount to prejudging the case.'

We are inclined to agree with the Industrial Tribunal on this point.

16. It is also unnecessary to deal with the minor contention on behalf of the petnrs. that the award exceeded the terms of the reference in two or three particulars, e. g., in providing for a marriage allowance & an allowance for children.

17. As we have held that the reference itself was bad, it follows that the award is equally invalid. Both are therefore quashed.


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