Full Judgment Text
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PETITIONER:
MAHABIR JUTE MILLS LTD. GORAKHPUR A
Vs.
RESPONDENT:
SHIBBAN LAL SAXENA AND ORS.
DATE OF JUDGMENT30/07/1975
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
RAY, A.N. (CJ)
MATHEW, KUTTYIL KURIEN
KRISHNAIYER, V.R.
CITATION:
1975 AIR 2057 1976 SCR (1) 168
1975 SCC (2) 818
CITATOR INFO :
R 1986 SC2705 (17)
ACT:
U.P. Industrial Disputes Act, 1947-Sec. 3-Whether
Government while deciding whether a dispute should be
referred for adjudication entitled to rely upon the secret
report sent by the conciliation officer-Whether an admn.
order of the Government should be a speaking order-
Principles of natural justice- Whether court can direct
Government how to exercise its discretion-Delay in disposal
of labour matters.
HEADNOTE:
The appellant employs about 1000 workmen. In the year
1955 all the 1000 workmen were dismissed by the appellant
after holding certain enquiries. Out of the 1000 workmen 200
workmen apologised and they were reinstated, The remaining
800 workmen were, however, not reinstated. The workmen Union
invoked jurisdiction of the Regional Conciliation officer
under clause 4(1) of the Government Notification dated 14-7-
1954 passed under sec. ;3 of the U.P. Industrial Disputes
Act, 1947. A Conciliation Board consisting of the Additional
Regional Conciliation officer as the Chairman and one
representative each of the Management and Labour as members
was constituted. Before the Conciliation Board, no
settlement could be arrived at. The members of the
Conciliation Board sent their reports to the Labour
Commissioner which were placed before the Government. The
Additional Regional Conciliation officer who was the
Chairman of the Board sent a secret report to the Labour
Commissioner recommencing that the allegations made by the
workers against the management, were baseless and should not
be entertained. The Government by its order dated 28-2-1956
refused to make a reference to the Industrial tribunal on
The ground that it was not expedient to do so. The workmen
filed a Writ Petition in 1958 for quashing the order of the
Government dated 28-2-1956 and for directing a fresh
reference. The learned Single Judge allowed the Writ
Petition in October, 1963. The Appellate Bench of the High
Court dismissed the appeal of the management in 1972. The
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Writ Petition was pending in the High Court for 14 years.
The learned Single Judge set aside the order of the
Government on the following grounds:
(1) The Government relied on the secret report
sent by the Additional Regional Conciliation
officer.
(2) The order of the Government was not a
speaking order.
The Division Bench held that the order need not be a
speaking order. Rules of natural justice would apply to
administrative proceedings. It is not necessary that the
administrative orders should be speaking orders unless the
Statute specifically enjoins such a requirement. It is
desirable that such orders should contain reasons when they
decide matters affecting the rights of parties. The Division
Bench set aside the order of the Government refusing to make
a reference on the following grounds:
(1) The Government took into consideration the
Secret report which had seriously prejudiced
and coloured its decision.
(2) The Additional Regional Conciliation officer
should have shown the secret report to other
members of the Conciliation Board in
accordance with the principles of natural
justice.
169
(3) The Government order was passed purely on the
secret report sent by the Additional Regional
Conciliation officer as also the report of
the Labour Commissioner.
Pursuant lo the judgment of the High Court, the State
Government made a reference in the year 1973.
Allowing the appeal by certificate,
^
HELD: (1) The administrative decisions are not
generally required to be accompanied by statement of
reasons. In a diverse Society such as ours, the Government
has to work though several administrative agencies which
have got a were wide sphere and if every administrative
order is required to give reasons it will bring the
Governmental machinery to a stand-still. [172F-G]
2. There is no reliable material on record to show that
the Government order was passed mainly on the secret report
of the Additional Regional Conciliation officer or of the
Labour Commissioner. In the counter affidavit filed on
behalf of- Government it was specifically stated that in the
opinion of the Government it was not expedient to refer the
dispute to the adjudication after the matter was fully
considered by the Government. Under section 4K of the U.P.‘.
Industrial Disputes Act, the Government has wide discretion
to act under certain circumstances. If the Government on the
basis of the material before it comes to the conclusion that
no real dispute existed and it was not expedient to make a
reference one can hardly find fault with the order of the
Government. There was no reason for excluding the secret
report submitted by the Additional Regional conciliation
officer at all. [173E-H, 174E-G]
3. Before the Additional Regional Conciliation Officer
made his report all the rules of natural justice were fully
complied with. The parties were given hearing, their points
of view were fully considered and, in fact, the
representatives of the management and that of the labour
were the members of the Board. There is no provision for
submitting the report by Chairman and members of the Board
to each other. The principles of natural justice are very
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essential but they have got their own limits and cannot be
stretched too far. A. K. Kraipak’s case distinguished. In
the present case, all The indicia of the principles of
natural justice were present. [176B-E; 177A, D]
4. Even if the High Court thought that the impugned
order of the Government suffered from any legal infirmity-
all that it could have done was to ask the Government to
reconsider it but it had no jurisdiction to direct the
Government how to act and low to exercise its statutory
discretion which was conferred on the Government by section
4K of the U.P. Industrial Disputes Act. There was absolutely
no warrant for the High Court in prohibiting the Government
from considering the secret report of the Additional
Regional Conciliation Officer or that of the Labour
Commissioner. [178B-D]
5. The order of the High Court is not legally
sustainable and must be quashed. [178D]
6. The reference made by the Government in the year
1973 was not in exercise of its independent decision but was
mainly because of the directions given in the High Court
judgment. If the order of the High Court is quashed it will
undoubtedly materially affect the decision of the Government
in making a reference to the Industrial Tribunal. Had the
Government made a reference uninfluenced by the High Court’s
direction the situation would have been different. Any
subsequent proceedings which come into existence, as a
result of the High Court order would fall to the ground as a
logical corollary of the setting aside of the High Court
judgment. [179A-B]
[1. We would like to make it clear that the Government
has ample discretion to make a reference to the Industrial
Tribunal under sec. 4K of the U.P. Industrial disputes Act
if it so thinks fit. Even if a reference was refused by
170
the Government that will not debar the Government from
making a reference at a later time if it is satisfied that
under the changed circumstances the reference is necessary.
[179D-F]
2. The Court is constrained to observe that labour
matters should have been given top urgency and should not
have been allowed to prolong for such a long period in the
High Court, otherwise, inordinate delay results in a
situation causing embarrassment both to the court and to the
parties. It is very necessary that such matters should be
disposed of by the High Court within 2 year of the
presentation of the petition. [172A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 781 of
1973.
From the judgment and order dated the May 8, 1972 of
the Allahabad High Court in Special Appeal No. 914/1963.
S. V. Jute, A. K. Sen, E. C. Agarwala and Promod
Swarup, for the appellant.
K. R. Chowdhuri and S. L. Sethia, for respondents 1 and
2.
G. N. Dikhit and O. P. Rana, for respondents 3 and 4.
The Judgment of the Court was delivered by
FAZAL ALI, J. This is an appeal by the management of
M/s Mahabir Jute Mills situated at Gorakhpur by a
certificate granted by the High Court of Allahabad under
Art. 133 of the Constitution of India. M/s Mahabir Jute
Mills Ltd. was formed some time in the year 1946 and soon
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thereafter when Shibban Lal Saxena one of the respondents
was elected as President of the Labour Union of the Mill
disputes arose between the workers and the Company as a
result of which Shibban Lal Saxena sent notice to the
management on December 31, 1946 threatening a general
strike. Thereafter several disputes arose between the
parties which were some times settled, sometimes re-opened
and in this appeal we are not concerned with those matters.
In the previous disputes the order of the management
retrenching some workers was upheld by the Regional
Conciliation officer and against that Shibban Lal Saxena
served a notice of strike listing 18 demands and calling
upon the management to reinstate the retrenched workers and
pay them bonus. This notice was given on March 31, 1954. On
April 16, 1954 a total strike was launched and Shibban Lal
Saxena left for China. During his absence it appears that
the management arrived at some sort of settlement with the
working President of the Union and the dispute for the time
being was resolved on July 11, 1954. Shibbanlal Saxena,
however, returned from China and with his re-entry into the
Union matters assumed serious proportions and the disputes
reached a high pitch. Mr. Saxena is alleged to have excited
the workers and wanted to re-open the agreement reached
between the management and the working President of the
Union on July 11, 1954. He also started an agitation and the
workers responded to the go-slow call given by Mr. Saxena as
a result of which the production of the Company came down
from 500 cuts to 300 cuts resulting in huge losses to the
company as alleged by the management. It is further alleged
that Mr. Saxena had delivered a number of inflamatory
speeches as a result of which the management charge-sheeted
two workers for wilful jamming
171
of bobbins in the Spinning Section as a result of which the
spinning work came to a stop. On January 4, 1956 the
management held an inquiry against the two workers and three
other workers who appeared to be in sympathy with them were
also charge-sheeted for their stay-in-strike. This strike
continued right upto January 13, 1955 in spite of the
efforts of the management to arrive at a settlement. This
was followed by a charge sheet which was served by the
management on various workers on February 5, 1955. Mr.
Saxena protested to the management saying that the charge-
sheets were absolutely baseless. A notice was put on the
main gate of the Mill on February 22, 1955 informing that an
inquiry would be held on February 25, 1955 and after inquiry
which the respondents described as a mere farce a large
number of workers were served dismissal notices. It appears
that out of 1000 workers all of them had been dismissed from
service but 200 workers who apologized were reinstated and
taken back. In view of these developments the Union invoked
jurisdiction of the Regional Conciliation officer under
clause 4(1) of the Government Notification dated July 14,
1954 passed under s. 3 of the U.P. Industrial Disputes Act,
1947. A Conciliation Board consisting of the Additional
Regional Conciliation officer as the Chairman and Shibban
Lal Saxena and Shri Arora representing the labour and the
management respectively as members was constituted. The
Conciliation Board heard the case but unfortunately no
settlement could be arrived at. Consequently the reports of
the members of the Board forwarded to the Labour
Commissioner were placed before the Government. Mr. P. C.
Kulshreshtha the Additional Regional Conciliation officer
and Chairman of the Board sent a secret report to the Labour
Commissioner recommending that the allegations made by the
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workers against the management were baseless and should not
be entertained. After considering the reports, the
Government of U.P. by its order dated February 28, 1956
refused to make a reference to the Industrial Tribunal on
the ground it was not expedient to do so. There was some
controversy before the Single Judge of the High Court on the
question as to when the order of the Government was received
by the workers and the High Court accepted the plea of the
workers that there was sufficient lay in communicating the
order of the Government to the workers as a result of which
a writ petition was filed before the High Court after a year
and a half. But the High Court found that the petitioners
were not guilty of latches. This matter is a closed issue
and need not detain us.
A writ petition was eventually filed on May 15, 1958
for quashing the order of the Government dated February 28,
1956 and for directing a fresh reference. The writ petition
was allowed by the order of the Single Judge dated October
7, 1963. Thereafter the management went up in special appeal
to the Division Bench of the Allahabad High Court which
decided the appeal on May 8, 1972 and quashed the order of
the Government and directed it to reconsider the same in the
light of the observations made by the High Court. It would
thus appear that this writ petition was pending in the High
Court for as many as fourteen years with the result that a
strange situation has developed to-day. By the time the
appeal has been heard by this Court more than seventeen
years have elapsed when the impugned order of the Government
172
was passed and almost twenty years after the management had
dismissed 800 workers. It is said that the management after
dismissal of the old workers had appointed new workers who
had by now put in about twenty years of service. We are
constrained to observe that labour matters should have been
given top urgency and should not have been allowed to be
prolonged for such a long period in the High Court,
otherwise the inordinate delay results in a situation
causing embarrassment both to the Court and to the parties.
It is, therefore, very necessary and in the fitness of
things that such matters should be given top priority and
should be disposed of by the High Court within a year of the
presentation of the petition.
The learned Single Judge while allowing the petition
set aside the order of the Government and directed the
Government to make a reference to the Industrial Tribunal
after ignoring the secret report sent by the Additional
Regional Conciliation officer. Another reason which the
Single Judge gave was that as the order of the Government
did not, state any reasons and was not a speaking order it
was legally invalid and was fit to be quashed. The Division
Bench of the High Court in appeal has not accepted, and in
our opinion, rightly this part of the order of the High
Court which was set aside. The Division Bench has held that
as the order of the Government was purely an administrative
order, unless there was any provision which required the
Government to give reasons for the order, the some could not
be vitiated for the absence of the reasons. The High Court
observed thus :
"The function of the Government is administrative.
In law administrative decisions are not generally
required to be accompanied by a statement of reasons.
There is nothing in the Industrial Disputes Act or the
notification aforesaid requiring the State Government
to state its reasons in support of its conclusion.
There was nothing particular in the pre sent case
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impelling the issuance of such a direction to the State
Government."
We find ourselves in complete agreement with the view taken
by the High Court on this point. In a diverse society such
as our’s the Government has to work through several
administrative agencies which have got a very wide sphere
and if every administrative order is required to give
reasons it will bring the governmental machinery to a stand-
still. It is well-settled that while the rules of natural
justice would apply to administrative proceedings, it is not
necessary that the administrative orders should be speaking
orders unless the statute specifically enjoins such a
requirement. But we think it desirable that such orders
should contain reasons when they decide matters affecting
the rights of parties. The Division Bench of the High Court
however has set aside the order of the Government refusing
to make a reference to the Industrial Tribunal and directed
it to reconsider the matter on the following three grounds:
(1) That the Government took into consideration the
secret report which had seriously prejudiced and
coloured its decision:
173
(2) that in accordance with the principles of natural
justice the Regional Conciliation Officer should
have shown the secret report to the, other members
of the Conciliation Board so that they may have an
opportunity’ to Rebut the same; and
(3) that the Government order was based purely on the
secret report sent by the Additional Regional
Conciliation officer as also the report of the
Labour Commissioner.
In the aforesaid order of the Division Bench of the High
Court certain mandatory directions have been given to the
Government to ignore the secret report as also the report of
the Labour Commissioner and to consider the reports of the
other members of the Conciliation Board, namely, Shibban Lal
Saxena and Mr. Arora. The Division Bench of the High Court
has, however, granted the certificate of fitness by its
order dated April 9, 1973.
Coming to the first ground which weighed with the High
Court is setting aside the order of the Government refusing
to make a reference to the Industrial Tribunal it-seems to
us that the High Court has proceeded on a complete
misconception of the real position and on a premise which is
wrong on a point of fact. Having perused the materials
placed before use we felt that there is no reliable material
on the record at all’ to show that the Government order
referred to above was based mainly on the secret report of
the- Additional Regional Conciliation officer of the Labour
Commissioner. The order’ does not say so, it only recites
that the reference to the Industrial Tribunal was refused
because the Government did not think it expedient to make a
reference. The High Court, however, completely overlooked
the specific averment made in the counter-affidavit filed by
the Government before the High Court which is at p.32 .of
Volume II of the Paper Book. In paragraph-29 of this
counter-affidavit; while rebutting the allegations made by
the petitioner it was stated thus:
"That with respect to the contents of para 38 of
the said Affidavit it is stated that the opinion of the
Government that it was not expedient to refer the
dispute to adjudication was formed after the matter was
fully considered by the State Government. The report of
the Labour Commissioner submitted through his letter
No. 7241/I-CR-CB-5(147)/1955, dated 22nd October, 1955,
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was also before the Department concerned. A true copy
of the said letter of the Labour Commissioner is
annexure III to this affidavit.
"The Government took the decision after
considering the said report and other surrounding
circumstances. It is denied that there was any
discrimination against the petitioner Union. Each case
was duly considered on its merits and only those cases-
were dropped which in the opinion of the Government
were not fit for reference."
This averment which has not been proved to be false
manifestly shows that the Government before making the
impugned order had considered
174
all the aspects including the report of the Chairman and the
members of the Conciliation Board, the Labour Commissioner
and other surrounding circumstances. In these circumstances
the finding of the Division Bench of the High Court that the
order of the Government was based merely on the secret
report of the Chairman or that of the Labour Commissioner is
not sustainable. We fail to understand on what basis the
High Court has presumed that the Government acted solely on
the secret report of the Regional Conciliation officer.
Under s. 4-K of the U.P. Industrial disputes Act the
statute confers the power on the Government to refer any
industrial dispute if it is of the opinion that such a
dispute exists or that any matter is connected with, or
relevant to the dispute. The Section runs as follows:
"Where the State Government is of opinion that any
industrial dispute exists or is apprehended, it may at
any time by order in writing refer the dispute or any
matter appearing to be connected with, or relevant to,
the dispute to a Labour Court if the matter of
industrial dispute is one of those contained in the
First Schedule or to a Tribunal if the matter of
dispute is one contained in the First Schedule or the
Second Schedule for adjudication:
Provided that where the dispute relates to any
matter specified in the Second Schedule and is not
likely to affect more than one hundred workmen, the
State Government may, if it so thinks fit, make the
reference to a Labour Court."
This section, therefore, gives a wide discretion to the
State Government ,to act under certain circumstances. If the
Government on the basis of the materials before it? comes to
the conclusion that no real dispute existed and it was not
expedient to make a reference one can hardly find fault with
the order of the Government passed under s. 4 K of the U.P.
Industrial Disputes Act. There can be no doubt that while
the secret report of the Additional Regional Conciliation
officer and the report of the Labour Commissioner, like
other circumstances had to be considered by the Government
in making its overall assessment of the situation, there was
no reason for excluding the secret report submitted by the
Additional Regional Conciliation officer at all. In these
circumstances the first ground on which the Division Bench
has set aside the Government order in refusing to refer the
matter to the Industrial Tribunal is not legally sound and
cannot be sustained.
As regards the second ground, the main contention of
Mr. Gupte learned counsel for the appellant has been that
the High Court has in error in applying the principles of
natural justice to a matter like this, and submitted that
the cases relied upon by the Single Judge of the High Court
regarding the application of the principles of natural
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justice to administrative proceedings cannot be invoked in
the facts and circumstances of this case To begin with we
have to ,examine the ambit and scope of the Conciliation
Board and the procedure adopted by it by virtue of the
provisions contained in the
175
notification issued by the Government under s. 3 of the U.P.
Industrial Disputes Act The relevant portion of the
notification runs thus
"5. Functions of Boards and submission of Memoran
dum or Report.
(1) Upon reference of a dispute to the
Conciliation Board under clause 4 it shall be its duty
to endeavor to bring about a settlement of the dispute,
and for this purpose the Board shall, in such manner as
it thinks fit, and without delay, investigate the
dispute and all matters affecting the merits and just
settlement thereof, and may do all such things as it
thinks fit for the purpose of inducing the parties to
come to an amicable settlement.
(2) In any case where the Conciliation Board is
successful in bringing about an amicable settlement
between the par ties it shall prepare a memorandum
stating the terms of settlement arrived at and the
Chairman shall send copies there of to the State
Government the Labour Commissioner, U.P and the parties
concerned.
(3) Where no amicable settlement can be reached on
one or more than one issue, the Chairman shall, within
seven days (excluding holidays but not annual vacations
observed ed bf courts subordinate to the High Court) of
the close of the proceedings send to the State
Government and the Labour Commissioner, a full report
setting forth the steps taken by the Board for
ascertaining the facts and circumstances relating to
the dispute and for bringing about an amicable
settlement thereof.
(4) The memorandum under sub-clause (2) or the
report under sub clause (3) shall be submitted by the
Chairman within thirty days (excluding holidays but not
annual vacations observed by courts subordinate to the
High Court) of the date on which the reference was made
to the Board.
Provided that the State Government may extended
the said period from time to time.
(5) The memorandum under sub-clause (2) or the
report under sub-clause (3) shall be signed by the
Chair man and such members as may be present:
Provided that the memorandum under sub clause (2)
shall also be signed by the parties to the dispute;
Provided that nothing in this clause shall be
deemed to prevent any member of the Board from
submitting a dissenting report."
176
A perusal of-this notification would clearly show that the
jurisdiction of. the Conciliation Board is very limited. The
procedure prescribed for the Board does not involve any
adjudicatory process but is purely of an exploratory nature
and what the Board has to do is to make an effort to bring
about an amicable settlement between the management and the
workers, and if it fails to do so it has to send a detailed
report to the Government. That is the limited area within
which the Board has to function. Nevertheless it is not
disputed ill this case that the Conciliation Board has held
a full investigation in the matter, heard the parties and
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framed as many as 33 issues after going into the matter and
then the Chairman and the members sent their reports. Thus
before. making the reports, all the rules of natural justice
were fully complied - with.: the parties were given hearing,
their points of view were fully considered and in fact the
representatives of the management and‘ that of the labour
were the members of the Boards. There is no provision in the
notification or in the U.P. Industrial Disputes Act which
enjoins that the report submitted by the Chairman or any
other members should be shown to one another. This also does
not appear to be necessary. The High Court’ seems to think
that because the Chairman did not show his secret report to
the other members of ’the Board, this has Resulted in the
violation of the principle of natural justice. We are,
however, unable to agree with this line of reasoning. The
principles of natural justice are no doubt very essential
but they have got their own limits and cannot be stretched
too far.
We would now like to deal with some. Of the cases which
have been referred to in the‘ judgment of the High Court and
which are also relied upon by Mr. Choudhri, counsel for the
respondents. In the first place reliance was placed on A. K.
Kraipak and ors. etc. v. Union of India and ors (l) ,where
this Court observed as follows:
"The aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate only in
areas not covered by any law validly made. In other
words they do not supplant the law of the land but
supplement it if the purpose of the rules of natural
justice is to prevent miscarriage of justice one fails
to see why those rules should be made inapplicable to
administrative enquiries. Often times it is not easy to
draw the line that demarcates administrative enquiries
from quasi-judicial enquiries."
This Court, however, took care to point out as follows:
"What particular rule of natural justice should
apply to a given case must depend to a great extent on
the facts and circumstances of that case, the framework
of the law under which the enquiry is held and the
constitution of the Tribunal or body of persons
appointed for that purpose, Whenever a complaint is
made before a court that
177
some principles of natural justice had been contravened
the court has to decide whether the observance of that
rule was necessary for a just decision on the facts of
that case."
The facts in Kraipak’s case (supra) are quite different from
the facts in the present case. In Kraipak’s case the main
grievance of the petitioned was that in the Selection Board
which was constituted for recommending the promotion of the
State Officers to the Indian Forest Service Cadre the Chief
Conservator of Forests was also a member of the Board,
although he himself was also a candidate for promotion to
the Indian Forest Service Cadre. Thus what happened was that
the Chief Conservator of Forests acted as a Judge in his own
cause. This was undoubtedly a gross violation of the
principles of natural justice, because the very person who
stood as a candidate also sat in the Selection Board which
had to decide his own future as that of his rivals. Such is,
however, not the case here. The Conciliation Board had
completed its proceedings and the stage at which, according
to the High Court, the rules of natural justice had to be
applied was the stage of submitting the report. Full hearing
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was given to the parties concerned. Thus all the indicia of
the principles of natural justice were present on the facts
of the S) present case. In these circumstances we are
satisfied that at Kraipak’s case could not be called into
aid in support of the reasons given by the High Court. The
procedure adopted in Kraipak’s case was obviously so
abhorrent to the notions of justice and fair-play that rules
of natural justice were at once attracted.
Reliance was also placed on Union of India v. Col. J.
N. Sinha and Anr.(1) where also it was pointed out by this
Court:
"Whether the exercise of a power conferred should
be made in accordance with any of the principles of
natural justice or not depends upon the express words
of the provision conferring the power, the nature of
the power con ferred, the purpose for which it is
conferred and the effect of the exercise of that
power."
In the present case we have already pointed out that neither
clause (5) of the notification referred to above" nor s. 3
of the U.P. Industrial Disputes Act contained any provision
which required that the members of the Conciliation Board
were to show their reports to one another. All that was
required was that they should send their reports to the
Government through the Labour Commissioner. This was
undoubtedly done. We are, therefore, unable to see and in
fraction of the rules of natural justice in the present
case.
Reliance was also placed on the decision of this Court
in State of Orissa v. Dr. (Miss) Binapani Dei and ors.(3).
This case also does not appear to be or any assistance to
the respondents. because in that case the entire procedure
of inquiry held was in violation of the rules of natural
justice, That, however, is not the position here.
178
It was then contended by Mr. Gupte that after quashing
the order of the Government refusing to make a reference and
asking it to reconsider the same it was not open to the High
Court to have given peremptory directions so as to
circumscribe the statutory jurisdiction of the Government
under s. 4-K of the U.P. Industrial Disputes Act. In our
opinion this contention is well-founded and must prevail.
Even if the High Court thought that the impugned order of
the Government suffered from any legal infirmity all that it
could have done was to have asked the Government to
reconsider it but it had no jurisdiction to direct the
Government how to act and how to exercise its statutory
discretion which was conferred on it by s. 4-K of the U.P.
Industrial ‘, Disputes Act. There was absolutely no warrant
for the High Court in ,. prohibiting the Government from
considering the secret report of the Additional Regional
Conciliation officer or that of the Labour Commissioner. The
Government was fully entitled to consider the matter in all
its comprehensive aspects and the secret report of the
Chairman of the Conciliation Board or that of the Labour
Commissioner were undoubtedly relevant materials which the
Government could have considered. The High Court could not
debar the Government from considering those matters nor
could it compel the Government to exercise its discretion in
a particular manner. In these circumstances we are satisfied
that the order of the High Court is not legally sustainable
and must be quashed,
The other point which arises for consideration it as to
the relief which could be granted to the appellant. Mr.
Gupte, counsel for the appellant, submitted that after the
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judgment of the High Court the Government had passed another
order dated February 6, 1973, by which it has in consonance
with the directions given by the High Court . made a
reference to the Industrial Tribunal. It was submitted that
it was not at all proper for the Government to have revived
a dead issue after more than twenty years and further as the
order of the Government was based on the order of the High
Court, if the order of the High Court was quashed the order
of the Government making a reference to the Industrial
Tribunal would fall automatically. We find ourselves in
agreement with the learned counsel for the appellant. l’
There can be no doubt that the order of the Government dated
February 6, 1973 is undoubtedly based on the order passed by
the Division Bench of the High Court. This is proved by a
Letter written by Mm Vishnu Prakash Up Sachiv (Deputy
Secretary), U.P. Government, to the Manager of the appellant
Mills. The relevant portion of the letter after being
translated in English runs thus:
"I am directed to say that their Lordships of the
High Court in their judgment in Special Appeal No.
1963/915 State Vs. Shri Shiban Lal Saxena (M/s. Mahabir
Jute Mills Sahjanwa) have ordered that the Government
after taking the dissenting reports from both the
parties should consider on the question whether the
aforesaid dispute should he referred for adjudication.
Therefore you are requested that within 10 days
from the date of the receipt of this letter to send
your dissenting re-
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port and whether further you want to say on your behalf
to the Government.
A perusal of this letter clearly shows that the Government
did not exercise its independent decision under s. 4-K of
the U.P. Industrial Disputes Act but was guided mainly by
the judgment of the High Court 13 and the directions given
in Special Appeal filed in the High Court. If the order of
the High Court is quashed, then it will undoubtedly
materially affect the decision of the Government in making a
reference to the Industrial Tribunal. Had the Government
made the reference uninfluenced by the High Court’s
directions the legal situation would have been different.
The learned counsel for the respondents submitted that
no prayer was made by the appellant for quashing the order
of the Government far making a reference to the Industrial
Tribunal. It was, however, not necessary for the appellant
to make such a prayer because if the High Court’s order is
quashed, then any subsequent proceeding which comes into
existence as a result of the High Court’s order would fall
to the ground as a logical corollary of our finding. The
learned counsel for the respondents after due consideration
submitted that he would have no objection if the Government
order for making a reference is quashed provided the
Government’s discretion to make a fresh reference to the
Industrial Tribunal on the dispute is not fettered. We
would, however, like to make it clear that the Government
has sample discretion to make a reference to the Industrial
Tribunal under s. 4-K of the U.P. Industrial Disputes Act if
it so thinks fit. This Court in Western India Match Company
Ltd. v. Western India Match Co. Workers Union and others(1)
clearly held that even if a reference was refused by the
Government that will not debar the Government from making a
reference at a later time if it is satisfied that in the
changed circumstances a reference is necessary.
For the reasons given above, we allow the appeal, quash
the order of the High Court dated April 9, 1973 and as a
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consequence of this we also set aside the order of the
Government dated February 6, 1973 for making a reference to
the Industrial Tribunal. In the peculiar circumstances of
this case, however we make no order as to costs throughout.
P.H.P. Appeal allowed.
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