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Shree Shew Sakti Oil Mills Ltd. Vs. Judge, Second Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2958 of 1957
Judge
Reported inAIR1959Cal690,63CWN782,(1959)IILLJ603Cal
ActsIndustrial Disputes Act, 1947 - Sections 10 and 33B; ;Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956; ;General Clauses Act - Section 21
AppellantShree Shew Sakti Oil Mills Ltd.
RespondentJudge, Second Industrial Tribunal and ors.
Appellant AdvocateNani Coomar Chakravarty, Adv.
Respondent AdvocateNirmal Chandra Chakravarty and ;D.N. Basu, Advs.
Cases ReferredBengal Chemical and Pharmaceutical Works Ltd. v. Their Employees
Excerpt:
- .....the original order of reference by the government was made on the 19th april, 1956 to the fifth industrial tribunal for adjudication. while the reference was pending before the fifth industrial tribunal, the government, by an order dated the 9th march, 1957. withdrew the reference from the fifth industrial tribunal and referred the same dispute on the same point to the second industrial tribunal. the petitioners challenge this order of the 9th march, 1957, withdrawing the reference from the fifth industrial tribunal and making a reference to the second industrial tribunal, as illegal and ultra vires the powers of the government and of the second industrial tribunal to make such an order on such a reference and to make an award thereupon. 3. before proceeding to consider this argument.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is a petition by Shree Shew Sakti Oil Mills Ltd. under Article 226 of the Constitution for a writ of certiorari to quash and set aside the award of the Second Industrial Tribunal, made on the 24th June, 1957 on the point of reference whether the dismissal of Shri Puranmal koyal was justified and, if so, to what relief was he entitled.

2. The challenge to the award is made on a new and important point. The original order of reference by the Government was made on the 19th April, 1956 to the Fifth Industrial Tribunal for adjudication. While the reference was pending before the Fifth Industrial Tribunal, the Government, by an order dated the 9th March, 1957. withdrew the reference from the Fifth Industrial Tribunal and referred the same dispute on the same point to the Second Industrial Tribunal. The petitioners challenge this order of the 9th March, 1957, withdrawing the reference from the Fifth Industrial Tribunal and making a reference to the Second Industrial Tribunal, as illegal and ultra vires the powers of the Government and of the Second Industrial Tribunal to make such an order on such a reference and to make an award thereupon.

3. Before proceeding to consider this argument and before deciding this point, I should like to set out the material portion of the order challenged :

Order No. 774--I. R. D/15L-12-56 of the 9th March, 1957.

And whereas under the Government of West Bengal Labour Department Order ................dated the 19th April, 1956, the said dispute was referred to the Fifth Industrial Tribunal .........

And whereas it is expedient that the said reference should be withdrawn and the said dispute should be referred to another Industrial Tribunal constituted under Section 7 of the Industrial Disputes Act, 1947 ............

Now, therefore, in exercise of the powers conferred by Section 10 of the said Act read with Section 2D of the General Clauses Act, 1897 ........... andin supersession of the aforesaid order ............dated 19-4-1956, the Governor is pleased hereby to refer the said dispute to the Second Industrial Tribunal .......... for adjudication.'

4. The frequent amendments of the Industrial Disputes Act and introduction of provisions, some with prospective and some with retrospective effect? and the legislative provisions for bringing different sections of the Act into operation at different times, are causing serious legal disputes and confusion with little benefit for any of the parties for which the Act is intended. This is a classic example of such confusion and futility.

5. Before the amendment of the Industrial Disputes Act by Act 36 of 1956, there was no power in the Government to withdraw a pending! reference before an Industrial Tribunal and make a new reference of the same dispute to another Tribunal. This power of transfer was for the first time introduced by Section 23 of Act 36 of 1956 which is known as the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 and which received the President's assent on August 28, 1956. That date of the 28th August 1956 is misleading and, in fact has misled even the highest Courts which I shall presently show. Section 23 of this Act 36 of 1956 introduces a new section in the principal Act which is Section 33B, in the following terms-:

'33B(1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pendingbefore a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal as the case may be for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred:

Provided that where a proceeding under Section 33 or Section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court.

2. Without prejudice to the provisions of Sub-section (1), any Tribunal or National Tribunal, it so authorised by the appropriate Government, may transfer any proceeding under Section 33 or Section 33A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same.'

6. On behalf of the Government, this order of transfer is justified or is attempted to be justified by the new Section 33B of the Industrial Disputes Act introduced by Section 23 of Act 36 of 1956. If the amendment does not apply, then the transfer cannot be justified or defended. If the transfer does not come within the Amendment Act quoted above, the order of reference by the Government, withdrawing a pending reference from the Fifth Industrial Tribunal and making a reference to the Second Industrial Tribunal on the same issue or dispute, will be unauthorised, illegal and beyond the powers of the Government. That position is clearly laid down in the Supreme Court decision in State of Bihar v. D. N. Ganguli, : (1958)IILLJ634SC . There the Supreme Court came to the conclusion that where an industrial dispute had been referred to a Tribunal for adjudication by the appropriate Government under Section 10(1)(d) of the Industrial Disputes Act, 1947, the said Government could not supersede the reference pending adjudication before the Tribunal constituted for that purpose. In that case also Section 21 of the General Clauses Act was invoiced to save the Government order but the attempt did not succeed because the Supreme Court took the view that Section 21 of the General Clauses Act embodied a rule of construction and the question whether or not it applied to the provisions of a particular statute would depend upon the subject-matter, context and the effect of the relevant provisions of the said Statute and it was of the view that Section 21 of the General Clauses Act could not, in the context of the Industrial Disputes Act, be invoked for upholding the order of cancellation.

7. Now, in this case, it is, in my view, impossible to apply Section 23 of Act 36 of 1956 to save the Government order for many reasons. TheGovernment order itself does not invoke Section 33B of the amended Act. I have quoted the order above and it will be seen that the Government order invoked only Section 10 of the Industrial Disputes Act and Section 21 of the General Clauses Act, sections which the Supreme Court, in the case I have just mentioned, held did not save the Government order. The reason why the Government did not seek to invoke the newly enacted Section 33B in support of the impugned order is not far to seek. On the face of it, it is not such an order. Even if it were such an order it obviously does not comply with one of the main requisites of that section which is thatreasons in writing have to be stated in the order, That is one of the very important conditions of the order under Section 33B. Now, no reason is stated here in the impugned order. All that is said is, 'whereas it is expedient that the said reference should be withdrawn and the said dispute should be referred to another Industrial Tribunal'. The learned Government Pleader has argued that the reason given here under Section 33B of tie Industrial Disputes Act, as amended, is the reason of expediency. I do not think that argument can save the order. The statutory provision contained in Section 33B uses the words, 'for reasons to be stated therein'. The reasons have to be stated so that they may be known to the parties concerned. To say that for reason of expediency a pending reference is withdrawn from one Tribunal and transferred to another may be a good reason provided it is stated what the reason is. What is the ground of expediency, must have to be disclosed or otherwise it will not satisfy the requirements of Section 33B. This is not one of those sections where the Authority, making the order of transfer, can withhold reasons On the ground of expediency. It is not one of those sections where the Authority, making the order of transfer, is given the power to keep the reasons undisclosed. If the reasons are to be stated in the order as required by the Statute, it will not do to say that the reason is an undisclosed ground of expediency for that will be plain evasion of the Statute. If it is a reason of expediency, then what that expediency is, has got to be declared and stated as a reason in writing in the order of transfer. Power in the executive Government to interfere- with pending judicial or quasi-judicial proceedings by transfer from one Tribunal to another, is an extra-ordinary power striking at the very root of independence of such Tribunals and therefore is to be rarely and sparingly used and even then for reasons disclosed in writing. Because it is a power peculiarly susceptible to abuse this Court will always be vigilant to examine the exercise of such power and prevent its abuse.

8. But the foremost reason why Section 33B of the Industrial Disputes Act, as introduced by Section 23 of Act 36 of 1956, cannot be applied to save this particular order in this case is that the amendment came into operation and effect only on the 10th March 1957. The order of withdrawal and transfer was made on the 9th March, 1957, when the power of transfer was not in the Government at all. Here reliance was placed on behalf of the Government at first on the decision of the Supreme Court in the Bengal Chemical and Pharmaceutical Works Ltd. v. Their Employees, : (1959)ILLJ413SC to say that this amendment came into force on the 28th August 1956. Unfortunately, in the report of the judgment, as printed in that Law Journal, it appears at more than one place that the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, (Act 36 of 1956), came into force on the 28th August 1956. It appears at p. 414: (at p. 634 of AIR) of the report of that judgment as well as at page 416: (at p. 639 of AIR) of the same report. If this decision be regarded as an authority for holding that Section 33B came into operation on the 28th August 1956, then, of course, this present Government order of withdrawal dated the 9th March 1957, will be governed by the amendment, I do not however read the Supreme Court decision in the case of Bengal Chemical and Pharmaceutical Works. Ltd. : (1959)ILLJ413SC to be such an authority and it does not discuss Section 1(2) of the AmendingAct and, its effect on the point for consideration before me here. I find, that although the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, is dated the 28th August 1956, Section 1(2) of the Statute itself provides:

'It shall come into force on such date or dates as the Central Government may, by notification, in the official gazette, appoint and different dates may be appointed for different provisions of this Act.'

Now, the date appointed for Section 23 of Act 36 of1956, introducing Section 33B into the principal Industrial Disputes Act, was the 10th March 1957, as will be seen from the 'Ministry of Labour', New Delhi Notification dated the 1st March 1957, published in the Calcutta Gazette on the 4th April1957, in the following terms:

'Notification No. L. R. 1(38)/50-

In exercise of the powers conferred by Subsection (2) of Section 1 of the Industrial Disputes Amendment and Miscellaneous Provisions) Act, 1956, (36 of 1956), the Central Government hereby appoints the 10th day of March 1957 as the date (c)n which the following provisions of the said Act shall come into force:--

Clauses (a), (c), (d) and (f) of Section 3;

Sections 4. 5, 6, 7 and 8:

Clauses (a) (b), (c), (e), (f) and (g) of Section 9;

Clause (a) of Section 10;

Sections 11 and 12;

Clause (b) of Section 13;

Clause (d) of Section 14;

Sections 15, 16, 17, 18, 19, 21, 22, 23, 34, 25, 20, 28, 29 and 30; and clause (d) of Section 32.

A. L. Handa,

Under Secretary.'

9. It is plain from this Notification that by Section 1(2) of Act 36 of 1956, the date for bringing into operation of Section 23 thereof which introduced Section 33B into the principal Statute was the 10th March 1957 and not the 28th August 1956 which is the date on which the President's assent was accorded to this Amending Act. The Statute, to my mind, is clear and the Notification in the Gazette makes it clear that Section 33B did not come into force on the 28th August 1956. I am therefore unable to hold that Section 33B of the Industrial Disputes Act came into operation on the 28th August, 1956. I hold that it came into operation on the 10th March 1957 and therefore cannot save the impugned order in this case dated the 9th March 1957.

10. As the impugned order in this case was made prior to the 10th March 1957, in fact, it was made on the 9th March 1957, a day previous to the date on which section 33B came into force, it must be held that the Government had not any statutory power to withdraw a pending reference and transfer it to some other Tribunal. Apparently, the Notification of the Labour Ministry, New Delhi, was dated the 1st of March 1957. Equally apparently, it seems that it escaped the attention of the Authorities that although that Notification was dated the 1st of March 1957, the date appointed by that Notification was the 10th March 1957. Therefore, .there could be no exercise of the statutory power of transfer under Section 33B on a date prior to the date on which that section came into operation. The learned Senior Government Pleader at one stage tried to say that that was a mistake which the Government made but even then the Government is argued to have thought that the 'Notification being dated the 1st of March 1957, the statutory power under S. 33B could be exer-cised from the date of the Notification. I do not think that could possibly have happened first because the Notification itself so clearly says that Section 23 of Act 36 of 1956 would come into force on the 10th March 1957 and secondly because there is no reference to the Notification or even to Section 33B in the impugned order of withdrawal and transfer. I cannot imagine that while the Government was making that order of withdrawal and transfer, it was. thinking at all of Section 33B but it was thinking, only of Section 10 of the Industrial Disputes Act and Section 21 of the General Clauses Act according to the old ways of thinking which have been found by the Supreme Court in the case of : (1958)IILLJ634SC , to be incompetent to give such power of withdrawal and transfer to the Government.

11. I must, therefore, hold for these reasonsthat the order of withdrawal and reference datedthe 9th March 1957 is illegal and ultra vires thepowers of the State Government in the facts orthis case and the Second Industrial Tribunal towhom such transfer was made had no jurisdictionto make the award in question. The order of reference being bad, illegal and without jurisdiction,the award by the Second Industrial Tribunal mustnecessarily be incompetent and without jurisdictionand illegal: I find both and make the Rule ofcertiorari absolute: There will be no order as tocosts.


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