Patna High Court
The Management Of Bararee Coke Plant vs Their Workmen And Anr. on 11 July, 1967
Equivalent citations: AIR1968PAT133, AIR 1968 PATNA 133, 1968 LAB. I. C. 512
JUDGMENT Narasimham, C.J.
1. This case was filed originally as a Civil Revision, but subsequently, at the request of the parties, converted into an application under Articles 226 and 227 of the Constitution.
2. On the 25th of June, 1965, the Governor of Bihar, in exercise of the powers conferred by Sub-section (1) of Section 10 of the Industrial Disputes Act (hereinafter referred to as the Act) referred to the Labour Court, Ranchi, constituted by the State Government Notification No. III/DI-12047/57 L-12149, dated the 26th July, 1957, a dispute between some of the workmen and the petitioner employer regarding the termination of services of workmen (named in the order of reference) by the management. The dispute was taken up for hearing by Shri T.P. Choudhury, the then Presiding Officer, Labour Court, Chotanagpur Division, Ranchi. But the employer raised several preliminary objections, two of which related to his jurisdiction to proceed with tha reference. These two alone were pressed before us in this application and will be dealt with in due course. Before the Labour Court the Secretary of the Union appeared and urged that the objections raised by the employer were merely a clever attempt to drag on the reference. The Labour Court overruled all the objections by its order dated the 8th November, 1965. Then the employer came to this Court with a Civil Revision which was admitted In due course. The employer also succeeded in getting stay of the further proceedings in the Labour Court. Thus, more man two year have elapsed since the reference of the dispute to the Labour Court for adjudication. Such delay may not adversely affect the employer but it is bound to cause serious harassment to the dismissed workmen, because having inadequate financial support they will be compelled to seek employment elsewhere during this period. Consequently, by the time the reference is taken up for hearing, the whole question may become somewhat academic. It is obvious that such dilatory tactics on the part of the employer should be severely discouraged.
3. The two important questions of jurisdiction urged by Mr. Balbhadra Prasad Singh for the petitioner may be formulated as follows:
(1) As the dispute was in respect of a coal mine, the Union Government had alone jurisdiction to make a reference under Section 10 (1) of the Act, and the State Government had no such jurisdiction.
(2) The order of reference refers to a Labour Court constituted on the 26th July, 1957, but Shri T. P. Choudhury was appointed a Member of the Labour Court, Ranchi, by another notification (Annexure B), dated the 24th July, 1965. Hence a fresh reference to that Court was necessary under Section 10(1) of the Act, and a reference made to the Labour Court prior to the date of appointment of Shri T P. Choudhury could not be heard by him.
In my opinion neither of these contentions is tenable and it is strange indeed that they should have been put forward so seriously and the reference delayed for two years.
4. It is true that 'mine' is a Central subject, and under the definition of "appropriate Government" as given in Sub-clause (i) of Clause (a) of Section 2 of the Act, where there is an industrial dispute relating to a mine, the appropriate Government is the Central Government. But as early as the 30th of April, 1957 (Annexure E), the Central Government, in exercise of the power conferred by clause (1) of Article 258 of the Constitution, entrusted to the State Government the functions of the Central Government under the Act in so far as they relate to industrial disputes concerning the industrial establishments specified in the schedule. The employer, namely, the Bararee Coke Plant, was one of those included in the schedule (Annexure E). Thus, by virtue of a notification under Clause (1) of Article 258 the power under Section 10 (1) to refer this industrial dispute to a Labour Court was expressly conferred on the State Government by the Central Government with the formers prior consent. This is a complete answer to this objection. Mr. Balbhadra Prasad Singh, however, urged, somewhat ingeniously, that the functions of the Central Government which could be delegated to the State Government under Article 258 (1) of the Constitution cannot include the function conferred by Section 10 (1) of the Act to make a reference to the Industrial Court. According to him, (his function can be delegated only by virtue of Section 39 of the Act; and as admittedly no order of delegation has been passed under that section, the Central Government alone "had the power to make such reference. The obvious answer to this contention is that the power conferred on the Central Government by an Article of the Constitution, namely, Article 258 (1), is paramount, and that power cannot be taken away merely because the power of delegation conferred by a statute has not been exercised. Clause (1) of Article 258 of the Constitution confers power on the Central Government to entrust to the State Government functions in relation to any matter to which the executive power of the Union extends". This executive power of the Union and the legislative power of the Parliament are co-extensive (see Article 73 of the Constitution). The Act was passed by the Parliament, and the executive power conferred on the Central Government by the Act will, therefore, come within the scope of Article 258 (1).
As to what is meant by "executive power", their Lordships of the Supreme Court in Jayanti-lal Amratlal Shodhan v. F. N, Rana, AIR 1964 SC 648 at p. 655 have observed:
" But it is now well settled that functions which do not fall strictly within the field, legislative or judicial, fall in the residuary class and must be regarded as executive".
Hence, the power of making a reference under Section 10 (1) not being either judicial (see AIR1 1953 SC 53) or legislative must be held to be executive power under Section 10 (1) of the Act, and under Article 258 (1) this power can be entrusted by the Central Government to the State Government with its consent.
5. Mr. Balbhadra Prasad Singh argued at some length regarding delegated legislation and conditional legislation. In my opinion it is unnecessary to discuss this argument because it is wholly academic here. 1 would, therefore, agree with the learned Labour Court that the State Government, by virtue of the entrustment made under Article 258(1) of the Constitution, had jurisdiction to make the reference under Section 10 (1) of the Act.
6. The second point is equally futile. It will be noticed that in the order of reference (Annexure A) the Labour Court is described AS follows: "Labour Court, Ranchi, constituted by the State Government Notification No. III/DI-12047/57 L-13149, dated the 26th July, 1957". The order of appointment of Shri Tarapada Choudhury as Presiding Officer, Labour Court, Ranchi (Annexure B) is in the following terms: --
" In exercise of the powers conferred by Section 8, read with Section 7(2), of the Industrial Disputes Act, 1947 (14 of 19471 and ir continuation of the Notification No. IV/E3 2065/65-L & E-3455, dated the 20th April, 1965, the Governor of Bihar is pleased to appoint, with effect from the 21st May. 1965, Shri Tarapada Choudhury, a Subordinate Judge, as Presiding Officer of the Labour Court, Cholanagpur Division, Ranchi, constituted under Notification No. III/DI- 12047/57-L-13149, dated the 26th July. 1957, to fill the vacancy caused by the resignation of Shri C. B. Mitter, the former Presiding Officer of the said Labour Court."
It will be noticed that in this order also the Labour Court constituted on the 26th July, 1957, is mentioned and it is stated that in the vacancy caused by the resignation of Shri C. B. Mitter, the former Presiding Officer, Shri Tarapada Choudhury was appointed as Presiding Officer. Section 8, read with Section 7 (2) of the Act has been referred to as the source of the power to make such an appointment. Subsections (1) and (2) of Section 7 of the Act deal with different subjects. Sub-section (1) refers to the constitution of a Labour Court. Sub-section (2) refers to the appointment of a person to the Labour Court. There may be a composite notification by which a Labour Court is constituted and a person is appointed as the Presiding Officer of a Labour Court, but the source of power is distinct. Once a Labour Court is constituted under Sub-section (1) of Section 7, it need not be reconstituted again and again whenever there is a vacancy in the post of a Presiding Officer and another person is appointed to that post. This is made clear by Section 8 of the Act also which refers to the appointment of a person in accordance with the provisions of the Act to fill a vacancy occurring in the office of the Presiding Officer of a Labour Court.
It is not alleged that the Labour Court, Ranchi, constituted on the 26th July, 1957, has been reconstituted on any subsequent occasion. When a vacancy arose in the post of Presiding Officer due to the resignation of Shri C. B. Mitter, Shri Tarapada Choudhury was appointed in his place on the 24th July, 1965 with retrospective effect from 21st May, 1965. The order of reference dated the 25th June, 1965 (Annexure A), refers to the Labour Court constituted on the 26th July, 1957. So long as the Court as constituted has not been disturbed, there is no necessity to make a fresh order of reference merely because of a change in the personnel of the Presiding Officer by the appointment of another person under Sec, 8, read with Section 7 (2) of the Act. This point also seems to be quite elementary.
7. For these reasons petition is dismissed.
Every effort should be made to dispose of the reference as soon as possible. The petitioner must pay costs of Rs. 200 which shall be distri buted equally between respondent No. 1 and respondent No. 2.