Patna High Court
Arthur Butler Worker'S Union vs The Management Of The Arthur Butler And ... on 18 February, 1952
Equivalent citations: AIR1952PAT447, (1952)IILLJ17PAT, AIR 1952 PATNA 447
JUDGMENT Jamuar, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for the issue of a writ in the nature of mandamus or any other appropriate writ and a direction upon the opposite party in the following circumstances.
2. The petitioner is a union of workmen under the employment of Arthur Butler & Co. Ltd., Muzaffarpur. The union has been registered as a trade union under the Trade Unions Act (XVI (16) of 1926). The opposite party are the management of the Arthur Butler & Co., the company's manager, the Company's Secretary, the State of Bihar, the Secretary to the Government of Bihar in the Labour Department, and the Assistant Labour Commissioner, Muzaffarpur.
3. The said union has been recognised both by the management of the Arthur Butler and Co., as also by the Government of Bihar which is the appropriate Government under the Industrial Disputes Act (XIV (14) of 1947) for regulating industrial disputes in such industries. There having arisen industrial disputes between the management of the Arthur Butler & Co., and their workmen represented by the said union regarding certain matters connected with employment, etc. the Government of Bihar in the Labour Department, under notification No. D10-6/50 L-5012, dated the 24th July 1950, referred the disputes in exercise of the powers conferred upon it by Section 7 read with Sub-section (1) of Section 10 of the Industrial Disputes Act (XIV (14) of 1947), to an industrial tribunal constituted by it for ad indication. The disputes referred to the tribunal were several in number, and it is only necessary to state the first one, namely, "the grades and scales of pay of the employees should be suitably revised, retrospective effect should be given to the same from the 4th April 1950." (The grades suggested by the union had been submitted in its letter No. 13/50-51, dated the 1st July 1950).
It appears that prior to this reference, that is, with effect from the 20th July 1950, the union had declared a strike by the workmen. When, however, the contents of the above notification were communicated to the union, it called oil the strike. It is, however, alleged that, in spite of this, the management of the Arthur Butler and Co. (hereinafter called "the manage-ment") continued a lock-out in contravention of the provisions of law, as eighteen of the workmen were not taken in by the management. The strike was, therefore resumed by the union. It is turther alleged that the management imported new labourers in place of the workmen not taken in. In the first week of August 1950, according to the petitioner's case, a new union, consisting of the newly appointed labourers and called the Arthur Butler Rash-triya Mazdoor Sangh (hereinafter called "the sangh"), was formed, and it is alleged that, this was under the patronage, and at the instance, of the management. This 'sangh' was duly registered by the Labour Commissioner, Bihar who was also the Registrar of trade unions and Secretary to the Government of Bihar in the Labour Department,
4. On the 14th March 1951, the tribunal, to which the industrial disputes, as stated above, had been referred for adjudication, gave its. award which was published in the Bihar Gazette (Extraordinary), dated March 30th 1951. An appeal was then taken from this award to the appellate tribunal which, on the 19th June 1951, affirmed the award excepting in one particular namely, the dispute quoted in the earlier part of this judgment relating to the grades and scales of pay of the employees.
5. Since Mr. B. C. Ghosh, the learned Advocate for the petitioner, has made a point, which he has strenuously argued, arising out of the concluding portion of the judgment of the appellate tribunal. I propose to set out that part of the judgment in full, that is, paragraph 10, which runs as follows :
"In this state of the evidence one of three courses seems to us to be open, namely :
1. to remand the case for further investigation of the question, opportunity being given to both the parties to lead fresh evidence;
2. to take additional evidence ourselves; or
3. to make a recommendation to the Bibar Government for fresh reference on the question.
In substance, there would be no material difference if any one of those courses be adopted, for practically there would be a de novo trial. There is, however, a practical difficulty in the first course, for the Tribunal which gave the award under anneal has now become functus officio. The second course would be inconvenient to both the parties and would involve them in additional expenses, if the additional evidence is to be taken here. These could be avoided only if we were to go to some convenient place in Bibar, but that is not possible at present and delay is not desirable. The third course, therefore, seems to us to be the best. There cannot be any question of the parties losing the benefit of the evidence already on the record, for, as we have already pointed out, that evidence is not helpful to them. We, therefore, set aside the award relating to basic wages in all its aspects, but at the same time feeling the necessity for the review of the scale of basic wages as fixed by Sri C. B. Prasad, we strongly recommend to the Bihar . Government to make a reference on the point, unless the parties arrive at settlement in the meantime."
6. It appears that there also arose industrial disputes between the management and the 'sangh.' The 'sangh' presented a list of demands to the manager of Messrs. Arthur Butler and Co.. Ltd. As no settlement was possible between them, the matter was referred to the Assistant Labour Commissioner, Muzaffarpur, for conciliation. The Assistant Labour Commissioner held a conciliation proceeding on the 9th August 1951, when an agreement was arrived at between the management and the 'sangh.' A copy of this agreement has been filed along with the petition as Annexure E. It is the case of the petitioner, that is, the union, that this was a collusive agreement between the management and the 'sangh', and, as such, is fraudulent and illegal, and is to the detriment of the workmen of the union and against their interest. It was also alleged that this agreement had been arrived at without notice or information to the union which was not represented at the time,
7. On the 24th July 1951, the General Secretary of the union addressed a letter to the Labour Commissioner, Bihar, in which the Labour Commissioner was asked to refer the question of grades of pay to a tribunal for adjudication, as recommended by the appellate tribunal, and it is stated that a copy of that letter was sent to the management on the same date.
8. Mr. B. C. Ghosh has contended, in the first place that the appellate tribunal having set aside the award relating to the question of basic wages, and having made a recommendation to the Bihar Government to make a reference on the point, the Bihar Government was bound to follow that recommendation, and that, since it has failed to do so in spite of the letter addressed to the Labour Commissioner on the 24th July 1951, by the General Secretary of the Union, this Court should issue a writ in the nature of mandamus upon the State of Bihar for constituting an industrial tribunal and referring that particular dispute to that tribunal for adjudication.
9. Mr. B. C. Ghosh contended, in the second place that the agreement arrived at between the management and the 'sangh' on the 9th August 1951, being fraudulent and illegal, is not binding upon the members of the union which represents the majority of the workers of the Arthur Butler & Co. The prayer in the petition, therefore, is to quash the settlement arrived at on the 9th August 1951, as also for the issue of a writ and a direction prohibiting the opposite party from enforcing the said agreement on the workers or at least, on such of them as are not members of the 'sangh'.
10. Dealing with his first contention, Mr. Ghosh contended that what the appellate tribunal in fact did was to remand that part of the award of the tribunal which dealt with the grades and scales of pay of the employees, and that, therefore, this order of remand should be given effect to. Clearly, this contention cannot prevail. The order of the appellate tribunal can in no way amount to an order of remand. The tribunal, after giving its award, became functus officio and there was no tribunal existing to which the appellate tribunal could remand any issue; indeed, the appellate tribunal itself recognised that difficulty, and stated in so many words that it could pass no order of remand. In the circumstances, the appellate tribunal adopted the third and the last alternative which suggested to itself, namely, to make a recommendation to the Bihar Government for a fresh reference on that point. When Mr. Ghosh saw the Xorce of the reply to that part of his argument, he proceeded to contend that, after the recommendation made by the appellate tribunal, the State Government had no option left but to constitute a fresh tribunal to give its award in respect of the dispute regarding the grades and scales of pay of the employees.
11. Now, the only provision jn the Industrial Disputes Act (XIV (14) of 1947) which deals with reference of disputes to tribunals is Section 10, and it is necessary to quote that section so far as is relevant to the present question in issue:
"Reference of disputes to Boards, Courts or Tribunals : -- (1) If any industrial dispute exists or is apprehended, the appropriate Government 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 Court for inquiry; or
(c) refer the dispute to a Tribunal for adjudication;
Provided that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government 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."
12. Clearly, the matter of reference for adjudication of any industrial dispute is one which is discretionary with the State Government. If the State Government does not choose to make, any such reference, this Court can issue no writ upon it so to do. This has been held by a Full Bench of this Court in the case of 'BAGA-RAM TULOPULE v. STATE OF BIHAR', 29 Pat. 491 (F.B.). Mr. Ghosh, however, sought to distinguish that case in two ways. He said that that case turned on the interpretation not so much of Section 10 (1) of the Industrial Disputes Act but of the proviso (quoted above) to that section. It is true that it was the proviso which called for attention in that case; but the interpretation of Section 10 (1) was also involved, and it was pointed out that this section is "clearly purely discretionary".
Mr. Ghosh then attempted to distinguish that case by arguing that in the present case before us the State Government did make a reference to an industrial tribunal for adjudication of that dispute, and the tribunal gave its award; but that part of the award was set aside by the appellate tribunal. That being so that particular dispute cannot be said to have received adjudication, and, therefore, it is no longer discretionary upon the State Government to choose not to make any further reference. The State Government having once decided to make that reference, the reference must again be made by it to another industrial tribunal, the former tribunal being functus officio, and the State Government has no more discretion in this matter. In my opinion, even then the reference can be made only under Section 10 of the Industrial Disputes Act, there being no other provision in the Act for making such a reference. Mr. Ghosh conceded that his (sic) was an argument of first impression, and that he could not find any authority in support of it. He, however, drew our attention to a passage from Stephen's Commentaries on the Laws of England, 21st Edition, Volume III, Book II, page 575, which reads as follows : --
"We must now deal briefly with the limitations upon the use of the order (mandamus). In the first place, as we have already indicated and in conformity with the principles laid down in Chapter II (ante, pp. 273 et seq.) mandamus will not be available to compel an authority to exercise a discretion unless it is under a duty to exercise it; even so, the authority is only commanded to face up to its duty and the order will leave the authority as free as before to decide for itself without any interfering direction from the Court. Even if, by the omission of one of the requirements of natural justice, the authority has failed in the eye of law to exercise a discretion, the mandamus will only command the authority to exercise it fairly and properly, and the same will be true if it has exercised its discretion mala fide or for purpose other than that for which it was entrusted with the discretion." Section 10 (1) of the Industrial Disputes Act gives power to the appropriate Government to refer any industrial dispute to a tribunal for adjudication; it does not impose any duty to do so; in other words, the statute confers a discretion rather than an obligation. In my opinion, the passage cited by Mr. Ghosh does not help him in his contention. The provisions of Section 10 of the Industrial Disputes Act clearly show that making a reference is purely within the discretion of the State Government. And this Court cannot give a direction to it to exercise that discretion in any particular manner.
13. Mr. Ghosh also referred to the following passages from Maxwell on Interpretation of Statutes, 9th Edition, page 215:
"The Supreme Court of the United States similarly laid it down that that which public officers are empowered to do for a third person the law requires, shall be done whenever the public interest or individual rights call for the exercise of the power, since the latter is given, not for their benefit, but for his, and is placed with the depository to meet the demands of right and to prevent the failure of justice. In all such cases, the Court observed, the intent of the legislature, which is the test, is not to grant a more discretion but to impose a positive and absolute duty."
I have already expressed my opinion that the provisions of Section 10 (1) of the Industrial Disputes Act show that the appropriate Government shall have a mere discretion, and no positive or absolute duty has been imposed upon it to make references. Although, in the first instance, the State Government had referred a certain dispute to a tribunal for adjudication, and, after the award of the tribunal on appeal to the appellate tribunal, the latter set aside that award it may well be that, in the time that elapsed between the date of the award given by the tribunal and the date of the order of the appellate tribunal or even thereafter, new set of circumstances came into existence by reason of which the State Government may not consider that any further step need be taken for getting an award by another tribunal on that particular dispute. For all these reasons, in my opinion, no case has been made out for the issue of a writ in the nature of mandamus or any other writ upon the State of Bihar.
14. Coming to the second contention put forward by Mr. Ghosh, he suggested that the agreement arrived at on the 9th August 1951, was not as a result of any conciliation proceeding within the meaning of the Industrial Dis-putes Act, but that it was a result of a mere reference to the Assistant Labour Commissioner, Muzaffarpur, who accepted some settlement already agreed upon by the parties. This argument is not borne out from the materials produced before us. It appears that, on 23rd July 1951, the 'sangh' addressed a letter to the manager, Arthur Butler & Co., Muzaffarpur, drawing attention to a resolution passed by the working committee of the 'sangh' and forwarding a list of the demands of the workers for consideration and necessary orders within a fortnight, and further asking the manager to accept those demands. It then appears that the management did not accept those demands. The matter was then referred to the Assistant Labour Commissioner, Muzaffarpur, for conciliation and he on the 4th August 1951, sent notices by Memo No. 1319 of that date to the manager, Arthur Butler & Co., Ltd., Muzaffarpur, and to the Secretary, Arthur Butler Rashtriya Mazdoor Sangh, Muzaffarpur, on the subject "conciliation proceeding." These notices informed the parties that he had fixed the 9th August 1951, at 10-30 a.m. for a conciliation proceeding at his office at Muzaffarpur. This correspondence clearly shows that the agreement was the outcome of a conciliation proceeding.
15. Mr. Ghosh suggested that it was untrue to say that, on the 23rd July 1951, the 'sangh' had addressed a letter to the manager, Arthur Butler & Co., Muzaffarpur, to the effect stated above, and be suggested that it was on the 31st of July 1951, that the 'sangh' had presented its list of demands. In the first place, I do not think that the date matters, and in the second place there is no reason to disbelieve the annexures filed along with an affidavit on behalf of the management showing that it was on the 23rd July 1951 that the 'sangh' had addressed its demands to the management.
16. In the circumstances, I am clearly of the opinion that the Memorandum of settlement, that is, the agreement arrived at on the 9th April 1951, between the 'sangh' and the management, was the result of a conciliation proceeding within the meaning of the Industrial Disputes Act, and was not a result of only a reference to the Assistant Labour Commissioner who merely accepted a settlement already agreed upon between the parties. Indeed, even the Memorandum of settlement (Annexure E) shows that "no settlement being mutually possible, the matter was referred to the Assistant Labour Commissioner, Muzaffarpur, for conciliation", and that "a conciliation proceeding was held by the Assistant Labour Commissioner on 9-8-51."
17. Mr. Ghosh then argued that this Court should quash the settlement of the 9th August 1951, and issue a writ and a direction prohibiting the opposite party from enforcing that agreement on the ground that it is against the provisions of Section 19 of the Industrial Disputes Act. He pointed out that it will appear from the award made by the tribunal that once before, that is, on the 21st November 1948, there had been a settlement between the parties which had been reduced to writing, and that the parties had agreed that the settlement would remain in force for a period of three years commencing from the 21st November, 1948, and hence it is not open to either of them to terminate it before the 20th November 1951. It is true that under the provisions of Sub-section (2) of Section 19 of the Industrial Disputes Act, a settlement arrived at in the course of a conciliation proceeding shall be binding for such period as may be agreed upon by the parties. But Mr. Ghosh has not produced before us a copy of the settlement arrived at on the 21st November 1948. We are, therefore, unable to say that any of the disputes which were settled on the 9th August 1951, was a subject-matter of the settlement on the 21st November 1948, also. Mr. Ghosh then conceded that, in the absence of the settlement of the 21st November 1948, he could not press this point any further. Mr. Ghosh also submitted that we should quash the settlement of the 9th August 1951, as being fraudulent But it was pointed out to him that sufficient materials had not been produced before us to enable us to do so. Here, again, Mr. Ghosh conceded that the materials on the record are not sufficient to enable us to hold that the said settlement with the 'sangh' was fraudulent.
18. In the result, the petitioner has failed to make out a case for the exercise of our power either under Article 226 or under Article 227 of the Constitution Act. The application fails, and is dismissed but, in the circumstances of the case, each party will bear its own cost.
Rai, J.
19. I agree.