Patna High Court
Thakur Yugal Kishore Sinha And Ors. vs The State Of Bihar And Ors. on 5 April, 1950
Equivalent citations: (1950)0LLJ539PAT
JUDGMENT Meredith, C.J.
1. This is an application under Article 226 of the Indian Constitution for the issue of writs in the nature of prohibition and certiorari for quashing portions of certain awards made by a Tribunal under the Industrial Disputes Act (Act XIV of 1947) and preventing any section to implement them.
2. The main petitioner is one Thakur Yugal Kishore Sinha, who claims to be the President of the Righa Mill Workers' Union, the Chini Workers' Union, Sugauli, the Chini Mazdoor Sangh of Majhaulia and the Bihar Provincial Sugar Labour Federation. It is stated that the first three of these are registered unions and as such are also petitioners.
3. The first opposite party in the petition as originally framed was the State of Bihar and, the second, the member of the Industrial Tribunal set up by the Government of Bihar. We called on the petitioners to serve notices on the 29 individual sugar mills concerned and the Indian Sugar Syndicate, Limited, Bihar Branch. Most of the mills have authorized the Indian Sugar Syndicate to represent them. We have not, however, in the event, found it necessary to call upon either the learned Advocate-General on behalf of the State or on any of the other opposite parties to reply to the arguments advanced for the petitioners.
4. By a notification dated the 11th of September 1948, the Bihar Government, under Sections 7 and 10 of the Industrial Disputes Act, referred certain disputes between the management and the employees of the different sugar mills in Bihar to a Tribunal consisting of Mr. Shivapujan Rai. On the 19th of December 1948, the Tribunal issued an interim award on one of the items of dispute, namely, the question of bonus. On the 24th of December 1948, this was duly published by Government and made binding on the parties to the dispute for one year from the 19th of December. On 6th of April 1949 the Tribunal made another interim award on the same question of bonus. On the 16th of April this was published by Government and also made binding for one year from the 19th of December, 1948. On the 12th of November 1948, the Tribunal made an interim award on another question in dispute, namely, the employment of seasonal labour. On the 27th January 1949, this also was published and made binding for one year from the 19th of December 1949. Lastly, on the 30th of November 1949, the Tribunal made a final award on all the items in dispute comprising 19 items which concerned all the sugar factories in general and also certain items of dispute peculiar to individual concerns. On the 30th of November this was published and also made binding for one year from the 19th of December 1948. The details of the final award were published in the Gazette (Extraordinary) of November, the 30th, 1949. The prayer of the petitioners is for quashing this final award so far as it relates to the item I 'bonus' and item 16 (employment of seasonal labour) and also upon two items of individual dispute, namely, Annexure K, matters in dispute, at the Motilal Padampat Sugar Mills, Majhaulia, Champaran, and Annexure M, matters in dispute at the Sugauli Sugar Factory, Champaran.
5. In the first interim award on the question of bonus it was stated that it was necessary to make an interim award on the questions of bonus and wages as the crushing season had commenced and uncertainty in the matter would cause great dissatisfaction. The United Provinces Government had made an announcement about the bonus for the season 1947-48 at certain rates. The Tribunal, taking all the circumstances into consideration, came to the conclusion that the Bihar factories should for the time being pay bonus according to the United Provinces scale, and the Bihar factories were given a fortnight's time after the publication of the award for the payment of half of the bonus. Besides emphasizing that this was a direction for the time being, it was expressly added that if in the meantime the United Provinces failed to pay their subsidy in respect of the previous year's production or other factors tending to affect the ability of the Bihar-factories to pay full bonus should come into play, those facts would be taken into account at the time of making the final award.
6. In the second interim award on the question of bonus it was stated that as regards the remaining half of the bonus, orders had been reserved in the first interim award. In the meantime the United Provinces Government had reduced the rate of bonus to the extent of 1 anna per maund. And after considering the various circumstances the Tribunal stated that it had decided to ask the industry to pay bonus for the present according to the reduced scale fixed by the United Provinces Government, and that, as regards the balance of the bonus, final orders would be passed after hearing the parties.
7. In the final award, upon this question of bonus, the Tribunal decided that the employees were not entitled to get bonus at the original rates fixed by the United Provinces Government, and payment of bonus at the reduced rate should be regarded as payment of full bonus. The Tribunal said: "Taking all the circumstances into consideration, I would come to the conclusion that there is no reason for the Bihar sugar factories to pay bonus at a rate higher than that at which it is paid by the U.P. Sugar Factories. My interim awards directed payment of bonus and wages on the scales on which they were fixed by the U.P. Government for the current season. I consider that no change should be made in the scales fixed in the interim awards and hereby direct that those shall be regarded as final.
8. It should be emphasized that the dispute was with regard to the bonus for past years, and not for any future period.
9. Turning now to the interim award on item 16 (seasonal labour), it was to the effect that first preference should be given to the workers of the season 1946-47 except those who were not employed in the season 1947-48 and had not raised any dispute alleging that they were refused employment, or were discharged or dismissed without any justification. Second preference should be given to the workers who were newly recruited in the season 1947-48. It was agreed that employment should not, in any case, be offered to those who were discharged or dismisssed for misconduct after due inquiry. The factories were to be entitled to employ on a temporary basis new recruits in place of those old employees whose disputes were pending before the Tribunal, so that in case an order of re-instatement were passed, no difficulty would be experienced in taking back those ex-employees. It was contended on behalf of the workers that all those who were employed in the season 1946-47, and in the season 1947-48, should be employed irrespective of whether this resulted in the employment of labour surplus to requirements. This contention was overruled.
10. The final award on this item was that the factories were to re-employ workers of the previous season on the conditions laid down in the interim award already issued subject to the condition that such employment should be offered only when there would be vacancies and posts had not been abolished as a result of general retrenchment or rationalization. The factories should not be bound to re-employ seasonal workers discharged or dismissed after lawful inquiries. These were of course the same conditions as laid down in the interim award expressed in different language. An allegation made on behalf of labour was that in the past it sometimes happened that employees turned up on the appointed date to offer themselves for employment, but employment was refused on some pretext, and when the Labour Unions or the employees took up the case with the Labour Commissoner's Department, the management denied that the employees had turned up on the appointed date. The only remedy, observed the Tribunal, which could be suggested in such cases was that the employees should approach the Labour Union at once and the Secretary or the President of the Labour Union should take up the matter immediately with the sugar factory, and if the matter was not settled by negotiations, the Labour Commissioner should be approached without delay.
11. It will be apparent that the only difference between the final award and the interim award was the addition of this suggestion made in the interests of the workers.
12. The contention on behalf of the petitioners is that on making the interim awards the Tribunal, so far as those items of dispute were concerned, became functus officio, and consequently had no jurisdiction to make any further awards. Therefore, the first or interim awards were only valid and could not be subsequently modified. So far as the question of the employment of seasonal labour is concerned, the contention is clearly without any merit since there is no difference between the terms of the final award and the interim award. The final award merely reaffirmed the terms of the interim award. But with regard to the question of bonus, the matter needs a little further consideration since the final award did involve a somewhat smaller bonus than the original tentative award, but not, it is, to be noted, the repayment by the workers of any sum paid because, under the items of the interim award, only half the bonus was paid, and even after the reduction, the total bonus amounted to more than the half bonus originally paid.
13. The contention that the Tribunal became functus officio, after making the interim awards, is based on Section 20(3) of the Act which reads:
Proceedings before a Tribunal shall be deemed to have commenced on the date of the reference of a dispute for adjudication and such proceedings shall be deemed to have concluded when the award is published by the appropriate Government under Section 17, or where an award has been laid before the Legislative Assembly under the proviso to Sub-section (2) of Section 15 when the resolution of the Legislative Asssembly thereon is passed.
14. This, however, must clearly be read with the definition of ' award' under Section 2(b). 'Award' is defined as follows:--
"Award" means an interim or final determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto.
15. It is clear from this that the Act does contemplate an interim award, and an interim award presupposes a final award. Therefore, Section 20(3) can never mean that the jurisdiction of the Tribunal shall cease so soon as an interim award has been made. It must mean that the proceedings will be deemed to have concluded when the final award of the Tribunal is published by Government.
16. In answer to this objection it is argued for the petitioners that the word "interim" in the definition does not mean provisional or tentative. It only means a final award on some of the items in dispute where a number of items of dispute have been referred to the Tribunal. It does not mean that a provisional award can be made which can be subsequently modified and even if an interim award is made, it must be a final and conclusive award with regard to the items concerned.
17. It is impossible to accept this interpretation. The Oxford Dictionary defines "interim" inter alia as "a temporary or provisional arrangement adopted in the meanwhile." There is no reason why this ordinary meaning should not be attached to the word in Section 2(b), and in fact the context clearly shows that that is the meaning attached. "Award" is defined as an interim or final determination, not only of an industrial dispute, but also of any question relating thereto. Therefore, it is clear that in regard to even a single question, both an interim and a final determination are contemplated. Manifestly, the word "interim" in such a context must' mean a provisional or temporary arrangement made in a matter of urgency and subject to final adjustment or complete determination of the dispute; for example, a payment on account pending final settlement of the amount as in the present case.
18. There is no warrant at all for the contention that "interim" means merely final determination of some items out of many. If, however, for the sake of argument we adopt that interpretation for the moment, what is the result? It is just the opposite of what the petitioners want. For, if a piecemeal or provisional award is no award at all (and these are the exact words used by the petitioners' counsel), then it clearly follows that the so-called interim awards in the present case were not awards at all. They could have no binding force because they were in express terms provisional arrangements only. Therefore, on that interpretation, it is the interim awards that would go, leaving the final award alone standing as a valid and binding determination of the dispute. But in the present application 'it is the final award that we are asked to quash, and the interim awards that we are asked to maintain.
19. It is quite apparent in my judgment, that the Tribunal had full jurisdiction to make the final 'award. There has been considerable discussion before us on the question in what circumstances the Court will issue writs of prohibition and certiorari. But it is quite unnecessary to examine that question in the present case because it is at least clear that they will only be issued to curb an excess of jurisdiction, and where there is no excess of jurisdiction, no question of issuing them arises.
20. The remaining questions may be very briefly disposed of. As regards Annexure K (the Majhaulia dispute), the matter is not pressed because the workers withdrew the dispute before the Tribunal. As regards the Sugbauli dispute (Annexure M), the contention is that the petitioner Thauker Yugal Kishore Sinha was not heard. Assuming for the moment, without deciding, that failure to hear a party to the dispute would affect the jurisdiction of the Tribunal, the short answer is that the award shows that the gentleman in question was heard. But after hearing him for some time, the Tribunal refused to give him further hearing because he was unable to prove that there was any Labour Union which had authorized him to advocate the case of the employees. The Tribunal came to the conclusion that the Labour Union, of which he claimed to be President or otherwise an authorized representative, was a bogus one. This may have been right or wrong; we are not concerned with that. A grievance is made that on one of the questions, question No. 5, the Tribunal decided that it had no jurisdiction. The question related to a demand that the manager of the factory should be removed for disturbing industrial peace. The award shows that the question was not pressed by Sri Kedarnath Pande, the Organising Secretary of the Indian National Sugar Workers' Federation, who was alone considered entitled to press it. Apart from that, the Tribunal was probably right, as a manager does not fall within the definition of workmen in Section 2(s), and the demand appears to have been completely unreasonable one.
21. There is one more fatal obstacle in the way of the petitioners. All these awards were made binding for one year from the 19th of December 1948. They had, therefore, ceased to be operative and have any force by December 1949, before the present application was filed. There is, therefore, nothing in regard to which the Court could issue writs. Upon this point it is argued that the Government could not make the awards binding retrospectively, and they must, therefore, be binding for one year from the date of publication. Assuming, without deciding, that the awards could not be made binding retrospectively, the conclusion by no means follows. Under Section 19(3), "An award declared by the appropriate Government under Section 15 to be binding shall come into operation on such date as may be specified by the appropriate Government and shall remain in operation for such period, not exceeding one year, as may be fixed by that Government. "One year, therefore is fixed as the maximum, not as the minimum. If the Government declares that an award shall be binding for one year, from the 19th December, this publication being made on the 30th of November 1949, then if the order is ineffective with regard to the period up to the 30th of November 1949, the only result would be that it will be binding from the 30th of November 1949 to the 19th of December 1949, but no longer. There was nowhere anything in the various Government orders that could make any of these awards binding after 19th of December 1949.
22. Lastly, I: wish to re-affirm what is said with regard to the issue of writs under Article 226 of the Constitution in Criminal Miscellaneous Case No. 155 of 1950 (See page 534 ante.) of which the judgment has been delivered today. I re-affirm the opinion that this is and must remain an extraordinary remedy, and cannot be used to abrogate the ordinary civil procedure. The Court will never act under Article 226 where any other adequate remedy is available to the parties concerned. I see no reason why in the present case the petitioners could not have filed declaratory suits with prayers for injunction as soon as the awards were published. They did nothing of the sort, but waited until the coming into force of the New Constitution made possible applications before this Court for writs of the nature in question.
23. I would dismiss the application and would allow costs in the sum of 5 gold mohurs each to the State and to the Indian Sugar Syndicate.
Shearer, J.
24. I entirely agree.
Das, J.
25. So do I.