Full Judgment Text
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PETITIONER:
MUNSHI LAL BENI RAM GLASS WORKS
Vs.
RESPONDENT:
S. R. SINGH, ASSISTANT LABOUR COMMISSIONER ANDOTHERS
DATE OF JUDGMENT:
27/10/1969
BENCH:
ACT:
Uttar Pradesh Industrial Disputes (Amendment and
Miscellaneous Provisions) Act XXIII of 1957, s. 16-If s. 16
refers to s. 6A as it stood prior to amendment of s. 6A by
U.P. Industrial Disputes (Amendment and Miscellaneous
Provisions) Act, 1956 (1 of 1957)-General Clauses Act, 1860
s. 6-Award-State Government’s power to enforce.
HEADNOTE:
The State Government, purporting to, act under ss. 3, 4 and
8 of the U.P. Industrial Disputes Act, 1944 referred a
dispute in the appellant’s factory to an adjudicator who_
gave his award on December 31, 1957. On January 28, 1958,
the Government passed an order enforcing the Award, under
ss. 3 and 6(12) of the Act. The Award was challenged by
means of a writ petition in the High Court. A single Judge
of the High Court allowed the writ petition holding that the
State Government had no power to enforce the Award in
question. According to the single Judge the old s. 6 having
been replaced by a new s. 6 by U.P. Act 1 of 1957 it was not
a case of repeal simpliciter and therefore old s. 6 could
not be resorted to by relying on s. 6(e) of the General
Clauses Act. A Division Bench, in appeal, reversed the
order of the single Judge and dismissed the writ petition.
On the question whether s. 6A as mentioned in s. 16 of the
U.P. Industrial Disputes (Amendment and Miscellaneous
Provisions) Act, 1956 (U.P. 1 of 1957) as amended by U.P.
Industrial Disputes (Amendment and Miscellaneous Provisions)
Act XXIII of 1957 refers to s. 6A as it stood in U.P. Act
XXVIII of 1947 prior to its amendment by U.P. Act 1 of 1957
or as it emerged after the said amendment,
HELD:(i) By U.P. Act 1 of 1957 s. 6A was replaced by new s.
6A which came into force from April 16, 1957. Prima facie
the amendment in s. 16 made in November 1957 by U.P. Act
XXIII of 1957 should be referable to s. 6A in the form in
which it existed on the date of the enforcement of Act XXIII
of 1957. But looking at the position as it stood on April
16, 1957 it would be seen that s. 16 was designed to save
the pending proceedings from the operation of U.P. Act 1 of
1957 itself. If this Act was held to be inapplicable then
s. 6A as amended thereby would be excluded and that section
as it stood prior to the amendment by U.P. Act 1 of 1957
would automatically be attracted. To uphold the view of the
learned single Judge would render awards like the one in the
present case unenforceable which intention is difficult to
attribute to the legislature. On the adjudication of the
dispute the provision of s. 6A would be attracted and
thereunder the State Government could enforce the Award. [32
C-F]
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(ii)The broad proposition that section 6 of the General
Clauses Act is ruled out whenever there is a repeal of any
enactment followed by a fresh legislation, cannot be
accepted. Section 6 would be applicable in such cases also
unless the new legislation manifests an intention incompa-
tible with or contrary to the proposition of the section.
Such incompatibility would have to be ascertained from a
consideration of all the relevant provisions of the new law
and the mere absence of a saving clause is by itself not
material. [33 G-34 B]
28
State of Punjab v. Mohar Singh, [1955] 1 S.C.R. 893 referred
to.
(iii) The contention that the decision of the
adjudicator is not an "award" as defined in s. 2(c) of the
U.P. Industrial Disputes Act, as -amended by Act 1 of 1957
has no force. If U.P. Act 1 of 1957 is excluded from its
application to pending proceeding under s. 16, then the word
"award" has to be liberally construed and so construed it
would be covered by s. 6A. The power conferred by s. 16 and
6A has to be construed as real and not illusory and it has
to be interpreted so as to achieve the purpose for which it
was conferred. [33 D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1706 and
1707 of 1968.
Appeals from the judgment and decree dated May 7, 1964 of
the Allahabad High Court in Special Appeals Nos. 77 and 118
of 1960.
G. N. Dikshit, for the appellant (in both the appeals).
J. P. Goyal and S. N. Singh, for respondent No. 3 (in
C.A. No. 171)6 of 1968) and respondent No. 1 (in C.A. No.
1707 of 1968).
C. B. Agarwala and O. P. Rana, for respondent No. 1 (in
C.A. No. 1706 of 1968) and respondent No. 2 (in C.A. No.
1707 of 1968).
The Judgment of the Court was delivered by
Dua, J. In these two appeals on certificate of fitness,
challenge is directed against the view taken by a Division
Bench of the Allahabad High Court on appeal in disagreement
with that of a learned Single Judge of that Court on the
interpretation of s. 16 of the U.P. Industrial Disputes Act
of 1957 and s. 6A of U.P. Industrial Disputes Act of 1947.
The relevant facts may first be briefly stated. In June
1956 there was a strike in the glass factory of the
appellant, M/s. Munshi Lal Beni Ram Glass Works, at
Ferozabad. As a result the factory was closed down for some
time. In August 1956 a settlement was reached with the
workers and it became possible to reassume operations from
August 31, 1956. The workers were asked to report
personally, latest by August 26, 1956, to show their
willingness to work. According to the appellant, Lal Khan,
one of the workers, failed to register his willingness to
work before the appointed day, and indeed he did not care to
report in spite of a messenger having been sent to him
requiring his attendance. In his place one Jang Jit was
thereupon employed and intimation of this fact duly sent to
Lal Khan. This gave rise to a controversy between Lal Khan
and the employers with the result that the State Government
purporting to act under ss. 3, 4 and 8 of U.P. Indus-
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trial Disputes Act referred the following dispute to the
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Adjudicator :
"Whether the employers have wrongly and/or un-
justifiably refused employed to Shri Lal Khan
with effect from 28/29th August, 1957 ? If so,
to what relief is he entitled ?
Soon after the reference the appellant presented a writ
petition in the Allahabad High Court, (C.W. No. 899 of 1957)
challenging its validity principally on the ground that
there was no industrial dispute within the contemplation of
the Industrial Disputes Act. As interim, stay of the
proceedings was declined, the proceedings before the
adjudicator continued and on December 31, 1957 the
adjudicator gave his award. This was followed by an order
of the State Government dated January 28, 1958 enforcing the
award under ss. 3 and 6(2) of the U.P. Industrial Disputes
Act, 1947. The award and the order of the State Government
were also challenged by the appellant by means of a writ
petition in the High Court (C.W. No. 1025 of 1958). Though
principally in this writ petition the power of the State
Government to enforce the award was questioned, challenge to
the order of reference was also reiterated. A learned
Single Judge allowed this later writ petition on January 28,
1958, holding that the State Government had no power to
enforce the award in question. According to the learned
Single Judge the old s.6 having been replaced by a new
section 6 by U.P. Act 1 of 1957, it was not a case of repeal
simpliciter and therefore old s. 6 could not be resorted to
by relying on s.6(e) of the General Clauses Act.
On the matter having been taken on special appeal a Division
Bench of the High Court following ,its earlier decision
reported as Central Distillery and Chemical Works Ltd.
Meerut v. State of U.P. (1) reversed the order of the
learned Single Judge and dismissed the writ petition.
The short question, the determination of which is decisive
of these appeals, is whether s.64 as mentioned in s.16 of
the U.P. Industrial Disputes (Amendment and Miscellaneous
Provisions) Act, 1956 (U.P. Act 1 of 1957) as amended by
U.P. Industrial Disputes (Amendment and Miscellaneous
Provisions) Act XXIII of 1957, refers to s.6A as it stood in
U.P. Act XXVIII of 1947 prior to its amendment by U.P. Act 1
of 1957 or as it emerged after the said amendment. The
learned Single Judge construed it to mean as it stood before
the amendment of U.P. Act 1 of 1957 whereas according to the
two Bench decisions Section 16 refers to s. 6A as amended by
U.P. Act 1 of 1957. We are required to determine which of
these two views is correct,
(1) A.I.R. 1964 All. 156.
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Section 16 of U.P. Act 1 of 1957 as it stood prior to its
amendment by U.P. Act XXIII of 1957 ran as follows:
"Saving. 16. If immediately before the
commencement of this Act, there is pending any
proceeding in relation to an industrial
dispute before any authority constituted under
the U.P. Industrial Disputes Act, 1947, as in
force before such commencement, the dispute
may be adjudicated and the proceeding disposed
of by that authority after such commencement,
as if this Act had not been passed."
After amendment by U.P. Act XXIII of 1957,
this section read thus
"Saving. 16. If immediately before the
commencement of this Act, there is pending any
proceeding in relation to an industrial
dispute before any authority constituted under
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the U.P. Industrial Disputes Act, 1947, as in
force before such commencement, the dispute
may be adjudicated and the proceeding disposed
of by that authority after such commencement,
as if this Act had not been passed,
and the provisions of section 6-A of the
Principal Act shall remain enforceable with
reference to such a proceeding.
The words added as a result of the amendment by U.P. Act
XXIII of 1957 had been deleted by this very amending Act
from sub-section 2 of s.17 of U.P. Act 1 of 1957.
We may now turn to the history of S. 6-A. This section was
inserted in the U.P. Industrial Disputes Act XXVIII of 1947
by the U.P. Industrial Disputes Act XXIII of 1953 in the
following form :
"6-A. Where any period is specified or is
required to be specified in any order made
under or in pursuance of this Act referring
any industrial dispute for adjudication with
in which the -award shall be made, declared or
submitted it shall be competent for the State
Government from time to time, to enlarge such
period even though the period originally fixed
or enlarged may have expired or the award
made."
This amendment had retrospective effect because it was to be
deemed to have always been added in the U.P. Industrial
Disputes Act 1 of 1947 which was described as the "Principal
Act". In 1957 by means of U.P. Act 1 of 1957 which
extensively amended the Act 1 of 1947, s.6-A was replaced by
the following new section 6-A.
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"6-A. Commencement of the Award-(1) An award
(including an arbitration award) shall become
enforceable on the expiry of thirty days from
the date of its publication under Section 6
Provided that if the State Government is of
the opinion that it will be inexpedient, on
grounds of social justice, to give effect to
the whole or any part of the award, the State
Government may, by notification in the
official Gazette, declare that the award shall
not become enforceable on the expiry of the
said period of thirty days :
Provided further that an arbitration award
shall not become enforceable where the State
Government -after such enquiry as it considers
necessary, is satisfied that the same has been
given or obtained through collusion, fraud or
misrepresentation.
(2) Where any declaration has been made in
relation to an award under the first proviso
to sub-section (1) the State Government may
within ninety days from the date of
publication of the award under Section 6, make
an order recting or modifying the award, and
shall on the first available opportunity lay
the award together with a copy of the order-
before the Legislature of the State.
(3) Where any award as rejected or modified
by an order made under sub-section (2) is laid
before the Legislature of the State, such
award shall become enforceable on the expiry
of fifteen days from the date on which it is
so laid and where no order under subsection
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(2) is made in pursuance of a declaration
under the first proviso to sub-section (1),
the award shall become enforceable on the
expiry of the period of ninety days referred
to in sub-section(2).
(4) Subject to the provisions of sub-sections
(1) and (3) regarding the enforceability of
an award, the award shall come into
operation with effect from such date as may be
specified therein, but where no date is
specified it shall come into operation on the
date when the award becomes enforceable under
sub-section (1) of sub-section (3) as the case
may be."
This enactment was enforced with effect from April 16, 1957.
The U.P. Act XXIII of 1957 which was published in the
Government Gazette on November 3, 1957, as noticed earlier,
amended S-16. Prima facie this amendment in s. 16 made in
November,
32
1957 should be referable to section 6-A in the form in which
it existed on the date of the enforcement of the amending
Act in question (U.P. Act XXIII of 1957). It was contended
on behalf of the appellant that the very fact that the
amendment of S. 16 was retrospective so as to date back
to April 16, 1957 when S. 16 itself was originally
enacted, indicates that s. 6-A as it existed prior to April
16, 1957 was intended to be kept alive. Now looking, at the
position as it stood on April 16, 1957, it would be seen
that s.16 was designed to save the pending proceedings from
the operation of U.P. Act No. 1 of 1957 itself. If this Act
was held to be inapplicable, then s. 6-A as amended thereby
would be excluded and that section as it stood prior to the
amendment by U.P. Act No., 1 of 1957 would automatically be
attracted. The question arises : where was then the
occasion to provide specifically for applying to the pending
proceedings s,6-A as it stood before U.P. Act No. 1 of 1957
? It may, of course, be contended that it was so done by way
of abundant caution. To us, however, it seems that to
specifically incorporate s.6-A in s.16 in this situation is
suggestive of the intention of the Legislature to extend the
amended s.6-A to the proceedings contemplated by s.16. The
enactment under consideration is not an example of ideal
draftsmanship and the provisions under consideration may’
admit of two constructions. Assuming the two
constructions to be possible we are not satisfied that the
construction placed on this provision by the two Benches of
the Allahabad High Court is clearly erroneous justifying
reversal of the view taken therein and thereby unsettling
the legal position. On the other hand to uphold the view of
the learned Single Judge would also render the awards like
the present unenforceable, which intention is difficult to
impute to the Legislature. And then this point is not
likely to arise very frequently in future, the matter being
confined only to the cases which were pending when U.P. Act
No. 1 of 1957 was enforced. The enactment is also confined
in its operation to the State of U.P. alone.
The appellant’s counsel next contended that the proceeding
in question pending with the adjudicator could not be
considered to be pending with the State Government and the
State Government could not give effect to the decision of
the adjudicator under s.16. It was argued that it was only
the Authority before which the proceeding was actually
pending immediately after the commencement of U.P. Act No. 1
of 1957 which was empowered to dispose it of and the
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proceeding in the present case being pending before an
adjudicator, the State Government could not claim any power
under this section. It was added that the State Government
could also not be treated as the authority constituted under
the said Act. In our, opinion the proceeding in question
was clearly -pending before the adjudicator as contemplated
by s.16. The
33
adjudicator, therefore, could plainly proceed to. adjudicate
upon the dispute. On his a judicious the provisions of s.6-
A would be attracted and thereunder the State Government
could enforce it. This submission of the appellant is,
therefore, repelled. On the view that we have taken it is
not necessary to decide whether the State Government is an
authority constituted under the Act as envisaged by s.16 and
also whether the proceeding in question could be considered
to be pending before the State Government.
The appellant’s counsel also submitted that without resort
to s.17 of U.P. Act No. 1 of 1957 the award could not be
enforced. This argument too need not detain us as it does
not arise on the view we have taken. We may, however, point
out that s. 17 only provides for delegated legislation in
certain circumstances and resort to s. 17 is not essential,
or a condition precedent for enforcing the awards, as
suggested on behalf of the appellant.
The appellant’s learned Advocate as a last resort submitted
that the decision of the adjudicator is not an ’award’ as
defined in s.2(c) of the U.P. Industrial Disputes Act as
amended by U.P. Act No. 1 of 1957. Now if U.P. Act No. 1 of
1957 is excluded from its application to pending proceeding
under s.16 then the word ’award’ has to be liberally
construed and so construed it would be covered by s. 6-A.
The power conferred by ss. 16 and 6A has to be construed as
real and not illusory and it has to be interpreted so as to
achieve the purpose for which it was conferred.
We must not be understood to accord our approval to the view
of the learned Single Judge that s.6 of the Principal Act
having not been repealed simpliciter, but having been
replaced by a new section 6 by U.P. Act 1 of 1957, the
principle underlying s.6(e) of the General Clauses Act
cannot be attracted. In our opinion, this approach is not
quite correct. Section 6 would seem to us to apply to a
case of repeal even if there is a simultaneous enactment
unless a contrary intention appears from the new enactment.
As observed by this Court in the State of Punjab v. Mohar
Singh(1) whenever there is a repeal of an enactment, the
consequences laid down in section 6 of the General Clauses
Act will follow unless, as the section itself says, a
different intention appears. In the case of a simple repeal
there is scarcely any room for expression of a contrary
opinion. But when the repeal is followed by fresh
legislation on the same subject we would undoubtedly have to
look to the provisions of the new Act, but only for the
purpose of determining whether they indicate a different
intention. The line of enquiry would be, not whether the
new Act expressly keeps alive old rights and liabilities but
whether’ it manifests an intention
(1) [1955] 1 S.C.R. 893.
34
to destroy them. We cannot therefore subscribe to the broad
proposition that section 6 of the General Clauses Act is
ruled out whenever there is a repeal-,of an enactment
followed by a fresh legislation. Section 6 would be
applicable in such cases also unless the new legislation
manifests an intention incompatible with or contrary to the
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proposition of the section. Such incompatibility would have
to be ascertained from a consideration of all the relevant
provisions of the new law and the mere absence of a saving
clause is by itself not material.
The result is that these appeals fail and are dismissed with
costs.
R.K.P.S.
Appeals dismissed.
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