Madras High Court
Sri Veereswara Spinning Mills (P) Ltd vs State Of Tamil Nadu on 19 July, 2010
Author: M.Venugopal
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:19.07.2010
Coram
THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
W.A.Nos.684 to 688 of 2004, 837 to 847 of 2003, 3498 to 3501 of 2004, 1365 and 1366 of 2003, 470 to 472 of 2003, 1147 to 1149 of 2003, 2308 to 2311 of 2003, 2631 to 2675 of 2003, 2012 to 2030 of 2003, 3139 to 3159 of 2003, 3206 to 3230 of 2003, 3513 to 3535 of 2003, 3719 to 3734 of 2003, 3540 to 3564 of 2003, 3284 to 3340 of 2003, 3739 to 3751 of 2003, 3437 to 3451 of 2003, 1651 to 1670 of 2004, 2741 to 2757 of 2003, 3160 to 3177 of 2003, 3687 to 3706 of 2003, 2926 to 2947 of 2004, 2961 to 2988 of 2004, 3312 to 3326 of 2004, 253 to 256 of 2004, 2354 of 2004
and
WAMP.Nos.1301 to 1305/2004 in W.A.Nos.684 to 688/2004, WAMP.Nos.1048 to 1058/2003 in W.A.Nos.837 to 847/2003, WAMP.Nos.3392 to 3395/2003 in W.A.Nos.2308 to 2311/2003,
WAMP.Nos.5430 to 5451/2004 in W.A.Nos.2926 to 2947/2004,
WAMP.Nos.5519 to 5546/2004 in W.A.Nos.2961 to 2988/2004,
WAMP.No.3482 of 2003 in W.A.No.2354 of 2003
*****
W.A.No.684 of 2004:
Sri Veereswara Spinning Mills (P) Ltd.,
Ammapalayam, Anupparpalayam (PO)
Tirupur 641 652
Rep. By its Managing Director .. Appellant
V.
1.State of Tamil Nadu
rep. By Secretary,
Labour & Employment
Fort St. George, Chennai 9.
2.The Commissioner of Labour
DMS Compound, Teynampet,
Chennai 6.
3.The Presiding Officer,
Industrial Tribunal,
Chennai 104.
4.Kovai Jilla Mill Thozhilar
Sangam (AITUC), Coimbatore 9,
rep. By its Secretary
5.Kovai-Erode Mavatta Drivada
Panchalai Thozhilalar Matrum
Nirvaka Oozhiar Munnertra Sangam,
Coimbatore,
rep. By its Vice President
6.Kovai Kizhaku Mavatta Mill
Thozhilalar
Sangam (CITU), Tirupur
rep. By its General Secretary .. Respondents
PRAYER: Appeal filed under Clause 15 of Letters Patent against the order passed by the learned single Judge in W.P.No.18626 of 2001 dated 30.09.2002.
For Appellant : Mr.A.L.Somayaji,
Senior Counsel
For M/s.T.S.Gopalan & Co.
For RR 1 to 3 : Mr.P.S.Raman,
Advocate General
For Mrs. Malarvizhi Udayakumar
Special Government Pleader
COMMON JUDGMENT
M.VENUGOPAL,J.
These Writ Appeals have been preferred by the appellants/petitioners Mills as against the common order of the learned Single Judge dated 30.09.2002 passed in W.P.No.18626 of 2001 etc. batch.
2.The learned Single Judge, while passing common orders in W.P.No.18626 of 2001 etc. batch dated 30.09.2002, has, among other things, observed that '... Even though question of financial capability is of no consequence, at the time of making the reference, a financial capability has got some bearing in the matter relating to direction under Section 10-B of the Industrial Disputes Act, 1947 and also held that before passing an order of interim relief under Section 10-B the principles of natural justice should be followed etc. and further opined that even though no benefit is confirmed to the workmen, the general principle of restitution would be available and the Tribunal will not be powerless to give the benefit given necessary direction to adjust the amount under Section 10-B from other emoluments admissible. Moreover, the learned Single Judge directed the Special Tribunal to deal with the industrial disputes including any interim application as expeditiously as possible in accordance with law without being influenced by any observations made in the Judgment and allowed the writ petitions calling in question G.O.(D).No.690 dated 13.09.2001 so far as it relates to the direction regarding interim relief and lumpsum payment and dismissed the writ petitions challenging G.O.(D).No.688 dated 13.09.2001 and ordered no costs in all the writ petitions.'
3.According to the learned Senior Counsel for the appellants/Mills, the order of the learned Single Judge in holding the order of reference for adjudication pertaining to the appellants as valid, contrary to law and that the decision of the Honourable Supreme Court in Sultan Singh V. State of Haryana and another [1996 1 LLJ 879] is not a ratio decedendi for the proposition that for initiation of conciliation proceedings, no notice or opportunity need be given to the party to the dispute. Added further, it is the contention of the learned Senior Counsel for the appellants that the learned Single Judge has failed to note that the aforesaid decision dealt with a case where after declining to make a reference for adjudication without giving any further notice or hearing to the parties, it has been held that the Government can review the earlier order and make an order of reference for adjudication.
4.The learned Senior Counsel for the appellants/Mills submits that in the decision in Tamil Nadu Joint Action Council of Textile Trade Unions and Government of Tamil Nadu and others and B & C Mills Staff Union V. State of Tamilnadu and others [1987 1 LLJ page 105], the Honourable Supreme Court was concerned with the question, when an industrial dispute was raised against several establishments, would the Government have the power to make a reference of the dispute for adjudication in respect of certain establishments and leave only a few other establishments out of the order of reference for adjudication.
5.Expatiating his submissions, the learned Senior Counsel for the appellants/Mills contend that when the order of reference is made, then the validity of the reference can be subject to judicial review before High Court and the dichotomy between the exercise of the power by the appropriate Government under Section 10 of the I.D. Act and the validity of the order of reference made after exercise of power in the matter of judicial review has not been taken note of by the learned Single Judge and as a matter of fact, the view taken by the learned Single Judge is to the effect that the conclusion of conciliation proceedings as per Section 12 of the I.D. Act is not a sine qua non for making a reference.
6.That apart, the stand of the appellants is that the initiation of conciliation and termination of conciliation in public utility service are mandatory, but the learned Single Judge has failed to appreciate this aspect and when an industrial dispute is admitted in conciliation, in respect of every party to the said proceedings the ingredients of Section 22/23 and 33 of the I.D. Act will automatically get attracted and thereby parties are subject to various statutory obligations, but this has not been taken note of by the learned Single Judge.
7.Added further, it is the plea of the appellants that every party to the industrial dispute against whom conciliation proceedings are initiated is entitled to an opportunity to participate in the conciliation proceedings and as such, the service of notice of conciliation on each individual establishment is mandatory even if the dispute is purported to have been raised is an industry-wise dispute and the learned Single Judge should have held like so.
8.The learned Senior Counsel for the appellants/Mills urges before this Court that Rule 37 of the Tamil Nadu Industrial Disputes Rules is contrary to Section 11 of the Industrial Disputes Act and therefore, it is ultra vires and the learned Single Judge has not appreciated the fact that Section 11(4) of the Industrial Disputes Act (Tamil Nadu Amendment) has given the power to the Conciliation Officers to summon and enforce the attendance of any person only if the documents or testimony of such person is relevant or necessary for the settlement of industrial dispute or for the purpose of verification etc. and as such should have held that the said provision will not apply for inviting the proper parties for conciliation.
9.The learned Senior Counsel for the appellants/Mills contends that the learned Single Judge should have quashed the reference on the ground inasmuch as the appellants were not given notice for conciliation and there was violation of principles of natural justice and also in the case on hand, there was no material on which the Government could be said to have formed its opinion about the existence of the dispute and in regard to the appellants, reference was sought to be sustained by reference to Section 10(1)(c) of the Act in which event valid initiation and termination of conciliation proceedings was necessary before the order of reference was made. But these aspects of the matter have not been taken note of by the learned Single Judge in their proper perspective.
10.Proceeding further, the learned Senior Counsel for the appellants/Mills submits that the learned Single Judge has not rendered a finding on the contention of the appellants/petitioners that an 'industry-wise reference' or an issue of standardisation of categories of workmen and the scales of pay etc. referred to for adjudication cannot obliterate the subsisting settlements.
11.The learned Senior Counsel for the appellants/Mills submits that the real demand of the workmen is for upward revision of basic wages, DA, HRA, increment etc. and not 'standardisation' and in fact, the demand has been made to get over the observation of the Division Bench Judgment in The Management of Binny Limited V. Government of Tamil Nadu and others [1989 II LLJ page 180 at para 35] and in fact, the said observation of the Honourable Division Bench has no binding force in view of Section 19 of the Industrial Disputes Act, unless the said provision is declared ultra vires of the Act but these aspects have not been adverted to by the learned Single Judge.
12.It is the specific contention of the learned Senior Counsel for the appellants/Mills that the learned Single Judge has not rendered a finding on the stand of the appellants/Managements that there could not be 'standardisation of categories of workmen and scales of pay' when there was no reference for adjudication in regard to the work load/work assignment and other parameters which are different from mill to mill and in regard to the mills having subsisting settlement on the date of reference, the reference itself was bad, but this has not been appreciated by the learned Single Judge in real perspective and should have rejected the reference in regard to the said mills. Furthermore, in respect of the mills which were not parties to the earlier awards of Special Industrial Tribunal, in law, there was no valid industrial dispute raised and that the learned Single Judge should have rejected the reference in respect of such mills and in fact, the demand for standardisation categories of workmen and scales of pay was wholly without any basis and opposed to the existing different wage pattern and the existing different work loads in respect of each mill but these aspects have not been taken note of by the learned Single Judge and therefore, prays for allowing the writ appeals.
13.The appellants/Unions/Sangams, in their writ appeals, have pleaded that the order of the learned Single Judge in quashing the G.O.(D).No.690 impugned in the writ petitions under Section 10-B of the Industrial Disputes Act [which is in the nature of interim relief] is contrary to law and in fact, the learned Single Judge after upholding reference under Section 10(1) of the Industrial Disputes Act viz., G.O.(D).No.688 ought to have been upheld the action of the Government under Section 10-B of the Industrial Disputes Act.
14.Also, the appellants have taken a plea that the learned Single Judge having rightly held in para 49 of the order that the amount paid in pursuance to the order under Section 10-B of the Industrial Disputes Act being adjustable against the final award etc. has committed an error in quashing the same.
15.It is the contention of the learned counsel for the appellants/Unions/Sangams that if, in pursuance of a reference under Section 10(1) of the Industrial Disputes Act, the Government can prohibit a strike or a lock-out under Section 10(3) of the I.D. Act, then no opportunity need be provided before passing such an order and in fact, the learned Single Judge should have held that an order under Section 10-B can be passed pending adjudication.
16.Besides the above, the learned counsel for the appellants/Unions/Sangams submits that the learned Single Judge ought to have applied the reasoning rendered in Eenadu Press Workers Union and another V. Government of Andhra Pradesh and another [1979 (1) LLJ P.391] with reference to Section 10(3) of the I.D. Act to the matter under Section 10-B of the I.D. Act.
17.Advancing his arguments, the learned counsel for the appellants/Unions/Sangams contends that an order passed under Section 10-B of the Act is only a measure of expediency and in fact, the Honourable Supreme Court in State of Uttar Pradesh and others V. Basti Sugar Mills Co. Ltd., and others [AIR 1961 SC 420] has held that the orders under Section 10-B of the I.D. Act are administrative in nature, keeping in view the exigencies and circumstances and as such, the said order ought not to have been interfered with by the learned Single Judge under Article 226 of the Constitution of India.
18.That apart, it is the contention of the learned counsel for the appellants/Unions/Sangams that the orders in G.O.(D).No.688 and G.O.(D).No.690 have been passed on the same day on 13.09.2001 and they are interlocked and therefore, the learned Judge has committed an error in quashing the interim relief under Section 10-B of the I.D. Act, leaving the poor workers in lurch and causing prejudice to them and therefore, prays for allowing the writ appeals in furtherance of substantial cause of justice.
19.The Government has filed a common elaborate counter, by mentioning that on expiry of the Award of the Special Industrial Tribunal, the registered Trade Unions, viz., Kovai Periyar Mavatta Dravida Panchalai Thozhilalar Munnetra Sangam, Kovai Jilla Mill Thozhilalar Sangam, Kovai Jilla Panchalai Thozhilalar Sangam, Desiya Panchalai Thozhilalar Sangam, Kovai Mavatta Mill Thozhilalar Sangam, Kovai Erode Mavatta Dravida Panchalai Thozhilalar Matrum Nirvaga Ozhiyar Munnetra Sangam, Coimbatore District National Textile Employees Union, Kovai Mavatta Panchalai Anna Thozhilalar Sangam and Kovai Kilakku Mavatta Panchalai Thozhilalar Sangam, who represent the majority of workmen employed in the textile mills in the State, served a thirty point joint Charter of Demands on various textile mills in the State and the demands raised by the Unions are in the nature of industry-wise demands and include standardisation of categories of workmen in the textile mills and the scales of pay payable to them, the revision of basic wages, dearness allowance, annual increment, house rent allowance, city compensatory allowance, etc.
20.Further, as an industry-wise industrial dispute on behalf of the workmen in the textile mills in the State and in respect of the textile mills functioning in the State of Tamil Nadu was raised, the Joint Commissioner of Labour, Coimbatore who is the Authorised Officer under Section 4 of the Industrial Disputes Act, 1947 to hold conciliation talks in any industrial disputes that may arise in any part of the State was asked by the Commissioner of Labour to hold conciliation talks in this dispute raised by the unions. Accordingly, he held conciliation talks on 4.1.2001, 23.1.2001, 19.2.2001 and 26.2.2001. As the charter of demands of the Unions related to industry-wise demands and since the number of mills are numerous in respect of the disputes raised, the Joint Commissioner of Labour issued notice of the dispute and the consequent talks initiated by him to the South India Mills Association, Coimbatore, an association of employers of textile mills in South India and the South India Small Spinners Association, an Association of employers of small spinning mills in South India, who were requested to attend the meeting. All the unions who have raised the industry-wise industrial dispute were also requested to attend the meeting.
21.Added further, the Representatives of the South India Mills Association and the South India Small Spinners Association who attended the conciliation talks held by the Joint Commissioner of Labour, Coimbatore took the stand that their member mills did not authorise them to negotiate on their behalf and suggested that negotiations should be held at the individual mill level and not at the industry level. However, the representatives of the unions insisted that until now the wage revision for workmen employed in the textile industry in the State was made only on the basis of awards made or settlements reached at the industry level and was not negotiated at the individual mill level. The representatives of these trade unions who served the joint charter of demands also served a notice of strike on the textile mills in the State in support of their charter of demands. The notice of strike dated 23.2.2001 was served under Section 22 of the Industrial Disputes Act and the signatory unions to the strike notice had indicated that they would go on strike from 16.4.2001.
22.At this stage, the Commissioner of Labour, Government of Tamil Nadu took up conciliation in the matter. The first conciliation meeting by the Commissioner of Labour took place on 16.3.2001. Notice of the conciliation meeting was issued to the representatives of Trade Unions, South India Mills Association, South India Small Spinners Association, the Dindigul Spinners Association, the Madurai Spinners Association, the Director of Handlooms and Textiles Government of Tamil Nadu, and the National Textile Corporation and they were requested to attend the conciliation meeting. Accordingly, they took part in the meeting during which the unions reiterated the stand that there could be only an industry-wise agreement with the various Association of Employers as was done in the past. But, the South India Mills Association and the South India Small Spinners Association took the stand that they were not authorised by their member mills to negotiate with the unions regarding wage revision. However, the Unions submitted that if an industry-wise negotiated settlement could not be arrived at, then, the Government could refer the demands raised by them to the Industrial Tribunal for adjudication and the Government could also invoke its power under Section 10-B of the Industrial Disputes Act, 1947 and direct the employers of the textile mills to pay the interim relief to the workmen employed by them and in respect of whom the present dispute was raised. The conciliation talks were held by the Commissioner of Labour on 16.3.2001, 6.4.2001, 12.4.2001, 7.6.2001, 20.6.2001, 21.6.2001 and on 8.8.2001. Since an industry dispute in respect of all the textile mills, affecting about two lakhs workers, was raised, the Honourable Minister for Labour, Government of Tamil Nadu, took part in the conciliation talks held on 6.4.2001, 12.4.2001, 7.6.2001, 20.6.2001, 21.6.2001 with a view to find an amicable solution to the issues in the dispute. However, the Unions and the representatives of all the Associations of the Employers had not changed their stand in the talks held on the above dates.
23.In the meanwhile, about 53,727 workmen employed in about 270 textile mills in various parts of the State commenced an indefinite strike on 20.8.2001 pressing the immediate approval of their charter of demands in regard to which the conciliation proceedings were initiated by the Commissioner of Labour. The striking workmen also announced that if no amicable solution to the issues could be found, then, they would resort to other forms of agitation like "dharna" and "road roko". The majority of textile mills are situated in rural areas and the mills recruit the people of nearby villages for work and the entire economy of these cluster of villages depended to a large extent on the earnings of their residents employed in these mills. If the strike had continued, it would have affected not only the industrial peace of the State but also the economy of the areas in which these mills are situated. Also, as a result of the strike, it is reported that production, worth several crores of rupees, was being lost everyday. Taking into account all these factors, the Honourable Minister for Labour, Government of Tamil Nadu, persuaded the workers and the representatives to call off the strike and to await the result of the conciliation talks. Thereupon, the workmen called off their strike. By that time, valuable mandays in textile mills were lost. Further, conciliation talks were held by the Commissioner of Labour on 28.8.2001 and 6.9.2001.
24.Considering the importance of arriving at a negotiated settlement, the Honourable Minister for Labour, Government of Tamil Nadu, the Honourable Minister for Handloom and Textiles, Government of Tamil Nadu and the Chief Secretary to the Government of Tamil Nadu participated in these conciliation talks. In the talks held on 28.8.2001 it was suggested to the representatives of the various Associations of Employers that the textile mills in the State could be grouped into several categories based on some valid criteria and a negotiated settlement could be arrived at in respect of each group. However, the representatives of the various Associations of Employers of Textile Mills reiterated the stand that there could not be any negotiated industry-wise settlement and that if necessary there could be a negotiated settlement in respect of each individual mill and that their member mills did not authorise them to negotiate on their behalf and that too an industry-wise settlement. But the representatives of the Unions insisted that as had been the practice so far in the industry there could only be a negotiated industry-wise settlement.
25.Since no settlement was possible in the industry-wise dispute raised by the Unions, the Commissioner of Labour sent a report as per Section 12(4) of the Industrial Disputes Act, 1947. The Government, after considering the report of the Commissioner of Labour, referred the industry-wise disputes raised by the Unions to the Industrial Tribunal, Chennai for adjudication in G.O.(D).No.688, Labour and Employment Department Department, dated 13.09.2001.
26.An industry-wise dispute arose in the year 1975 and The Hon'ble Mr. Justice N.S.Ramasamy, Judge (Retired), High Court, Madras was appointed by the Government as Special Industrial Tribunal exclusively to adjudicate upon the industry-wise dispute in textile mills. Similarly, when industry-wise dispute in textile mills arose in 1985, the Government appointed Thiru.K.E.Varadhan as Special Industrial Tribunal to adjudicate on the dispute. In W.P.No.12777/85 between Tamil Nadu Joint Action Council of Textile Trade Unions and Government of Tamil Nadu and others and B & C Mills Staff Union V. State of Tamilnadu and others reported in [1987 1 LLJ 105] the Honourable Supreme Court has upheld the stand of the Employers that this is an industry-wise dispute. In the decision The Management of Binny Limited V. Government of Tamil Nadu and others [1989 II LLJ 180], this Court has inter alia held that ' ... We have to proceed on the footing that the issue is no longer open to the petitioners and that the reference is industry-wise reference as the Hon'ble Supreme Court has considered the order of reference made by the Government and had given its decision, which is binding on this Court.'
27.The Government took into consideration the aforesaid orders of the Honourable Supreme Court, the stand taken by the Managements and South India Mills Association, the South India Small Spinners Association, the Dindigul Spinners Association, the Madurai Spinners Association that this should be dealt with the establishment-wise dispute, the strike entered into by the Unions, the impact of the strike had on the economy of the State, the need for averting a State-wise strike, the need for bringing about early solution to this problem and other allied matters and proceeded to invoke the provisions of the Industrial Disputes Act.
28.In the industry-wise dispute, the Government considered it appropriate to follow the directions of the Honourable Supreme Court in regard to the inclusion of textile mills as parties to the dispute and decided that at the stage of making a reference for adjudication it cannot assume for itself the task of deciding as to which are the mills that should be included in the reference to the Tribunal and accordingly, on the basis of information gathered, the Government decided to implead the managements of 1692 textile mills as parties to the dispute. Under these circumstances, the Government invoked the power of making a reference for adjudication under Section 10(1) of the Industrial Disputes Act together with the powers conferred under Section 10(5) of the Act.
29.The provisions of Section 10(1) of the Act do not restrict the Government to confine themselves to the issues covered by a conciliation failure report or to the parties covered by such failure report. It is not even necessary that there should be a conciliation failure report before passing an order under Section 10(1) of the Act referring a dispute for adjudication. The Government, applying its mind to all the relevant facts, has proceeded to pass orders under the Industrial Disputes Act.
30.Some of the appellants, in the affidavits filed, had admitted that the wages, allowances and other service conditions of their workmen are governed by industry-wise award and settlements made in Tamil Nadu from time to time. The awards of the Special Industrial Tribunals presided over by Thiru K.E.Varadhan and Thiru K.Natarajan were on industry-wise references made by the Government of Tamil Nadu on the industry-wise demands made by the trade unions functioning in the textile mills in the State. Hence, after having admitted the existence of industry-wise awards applicable to the workmen employed in the textile mills in the state, the appellants/mills cannot challenge the industry-wise reference for adjudication made by the Government in G.O.(D).No.688, dated 13.09.2001.
31.The present reference is an industry-wise one pertaining to all the textile mills in the State and whenever an industry-wise reference is made by the Government, it should include all the units in that industry in the State and it should not exclude any unit from the purview of the reference on the basis that there are subsisting settlements between the employer and their workmen as per the decision in Tamil Nadu Joint Action Council of Textile Trade Unions and Government of Tamilnadu and others and B & C Mills Staff Union V. State of Tamilnadu and others [1987 1 LLJ 105] and the Management of Binny Limited V. Government of Tamilnadu and others [1989 II LLJ 180]. As per Section 10 of the Industrial Disputes Act, the Government has to only form an opinion as to whether an industrial dispute exists or is apprehended, but it cannot decide whether an existing settlement covers the issues in dispute or not. The parties will have to raise the applicability or otherwise of the settlements only before the Industrial Tribunal for its decision.
32.In M/s.Ramakrishna Mills (Coimbatore) Limited V. the Government of Tamil Nadu [1984 II LLJ page 259 at page 268] this Court has held that '... The Government merely refers matter to another body for investigation and adjudication of the rights of the parties and in the said context, there is no scope for bringing in the principles of natural justice' and further in Automobile Corporation of Goa Limited V. State of Goa and others in [F.J.R. Vol. 79 page 586 at page 590] it is held that '... A mere reference by the Government does not involve any adverse civil consequences and consequently, there is no obligation whatever to give a hearing to the parties, before the actual reference is made by the Government in exercise of its administrative powers etc.'
33.The Honourable Supreme Court, in Sultan Singh V. State of Haryana and another [1996 II LLJ page 879], has held that 'the order of reference issued by the Government while making a reference as per Section 10 of the Industrial Disputes Act is only administrative in character and since no lis is involved, employer is not entitled to be issued with any hearing before making or refusing to make a reference.'
34.Since the dispute was raised, in respect of which the strike notice was issued, the dispute is an industry-wise dispute and hence, an endeavour was made by the Commissioner of Labour to have an industry-wise conciliation talks in the matter. Several Associations of Employers were called for the conciliation talks. If the Commissioner of Labour had called the individual mills for conciliation, then, it would have changed the nature and character of the dispute raised by the unions from one of the industry-wise dispute. It will amount to changing the nature of the dispute raised by the unions without their consent.
35.In view of the provisions of Rule 37(1) of Tamil Nadu Industrial Disputes Rules, all the members of the Association of Employers viz., South India Mills Association, the South India Small Spinners Association, the Dindigul Spinners Association and the Madurai Spinners Association, the representatives who participated in all the conciliation talks are deemed to have had notice of the conciliation proceedings on the charter of demands.
36.In the conciliation meeting held on 07.06.2001, the representatives of the various Associations of Employers of Textile Mills represented that their Associations and members should be heard separately and the requests of the various Associations of Employers of Textile Mills was conceded and on 20.06.2001, all such Associations of Employers of Textile Mills attended the conciliation talks along with their members in which the Honourable Minister for Labour participated and the demands of the Unions and the stand of the Managements on the demands was heard in detail.
37.Proceeding further, the representatives of the various Associations of Employers of Textile Mills in the State and the members who participated in the meeting were also informed about the request of the Unions on the Government for invoking the powers of the Government, under Section 10-B of the Industrial Disputes Act, and passing orders for the payment of interim relief. The participating members of various Associations of Employers of Textile Mills in the State were given full opportunity to air their views in regard to the dispute raised by the Unions and as such, it is not correct to say that the Government has passed orders in the dispute without hearing the mills. While interpreting Section 10-B of the Industrial Disputes Act, the Honourable High Court of Karnataka in W.P.No.27299/1995 in its order dated 29.2.1996, has held that the order is to be passed on the Government's subjective satisfaction and not by means of a detailed and protracted enquiry and hence, there is no need for the Government to hear the parties before passing G.O.(D).No.690 dated 13.09.2001.
38.Moreover, the payment made under Section 10-B of the Industrial Disputes Act is to be adjusted towards the payments payable to the workers and hence, there is no question of arbitrariness or unreasonableness in the action taken. In Kanoria Industries Ltd. V. State of Karnataka [1997 LLJ at page 95] the Honourable Karnataka High Court, while interpreting Section 10-B of the Industrial Disputes Act, it is held that '... It is the pure discretion of the Government to decide as to how it should act and this is sovereign function and in exercising such powers there is no question of any person being heard in the matter' and therefore, it is not necessary for the Government to hear the appellants before passing orders under Section 10-B of the Act.
39.The classification of the mills based on their spindle capacity is neither new to have been introduced by the Tribunal presided over by Thiru K.E.Varadhan or the classification is a static one which has remained unchanged. The classification into two categories was made only based on the demands of the Unions who served the charter of demands and the strike notice. In fact, while making the reference the Government cannot go beyond the demands made by the Unions and classify the mills into more than two categories.
40.The learned Senior Counsel for the appellants submits that during the year 1992 the State-wise industrial dispute relating to the textile workmen was referred to the Special Industrial Tribunal and these disputes were numbered as I.D.Nos.1, 2 and 3 of 1993 and when those disputes were pending before the Special Industrial Tribunal on 16.3.1994, the appellant/mills in W.A.No.837 of 2003 (writ petitioner in W.P.No.18243 of 2001) have entered into a settlement with the Unions/Sangams viz., R.3, R.6 and R.7 in W.P.No.18243 of 2001 and signed a settlement under Section 18(1) of the Industrial Disputes Act and a copy of the settlement was filed before the Special Industrial Tribunal and an award came to be passed on 29.11.1996 and that the settlement was to remain in force till 31.12.1998.
41.It is the further submission of the learned Senior Counsel for the Appellants that even when the award of the Special Industrial Tribunal in I.D.No.1, 2 and 3 of 1993 was in force, during the beginning of the year 1998, the various unions representing workmen made a representation for an adhoc increase in basic wage and in order to maintain industrial harmony, the appellant in W.A.No.837 of 2003 negotiated with the Unions and arrived at a settlement on 19.01.1998 in and by which the workers were given an adhoc increase of Rs.278/- in their basic wages, which is over and above the increase in wages which the workmen in other similar mills received under the award of Thiru K.Natarajan and after the termination of the award on 31.12.1998, on 19.07.1999, the 5th respondent/Sangam in W.P.No.18243 of 2001 terminated the settlement and projected a Charter of Demands and the respondents 3, 4, 6 and 7 also submitted similar demands separately.
42.The contention of the learned Senior Counsel for the appellants is that in respect of the appellants/Mills the Joint Action Committee cannot raise a dispute by means of the settlement deed dated 14.05.2001.
43.The learned Senior Counsel for the appellants/Mills relies on the decision of the Honourable Supreme Court in M/s.Shaw Wallace & Co. Ltd., V. State of Tamil Nadu represented by the Commissioner and Secretary, Labour Department and others [1987 (1) LLJ 177 wherein at para 32] wherein it is observed that "(1)The Government would normally refer the dispute for adjudication;
(2)The Government may refuse to make reference, if -
(a)the claim is very stale;
(b)the claim is opposed to the provisions of the Act;
(c)the claim is inconsistent with any agreement between the parties;
(d)the claim is inconsistent with any agreement between the parties;
(e)the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse;
(f)the person concerned is not a workman as defined by the Act;
(3)The Government should not act on irrelevant and extraneous considerations;
(4)The Government should act honestly and bona fide;
(5)The Government should not embark on adjudication of the dispute; and (6)The Government should not refuse reference on the ground that domestic enquiry was fairly and properly held and punishment awarded was appropriate"
Relying on the said judgment, the learned Senior Counsel contends that the only requirement in cases falling outside Section 2-A of the Act is that the Government should form an opinion that an industrial dispute exists or is apprehended.
44.Added further, it is the contention of the learned Senior Counsel for the appellants/Mills that the appellants cannot be driven to the Tribunal to decide the matter pertaining to the Charter of Demands and inasmuch as there is no individual dispute, a reference is a futile one and only if the industrial dispute exists, then the observations made by the Honourable Supreme Court made in para 24 of the decision in National Engineering Industries Limited V. State of Rajasthan and others [(2000) 1 SCC 371] to the effect that 'the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act etc. and further that it is the existence of the Industrial Tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it and is there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference etc. will apply.'
45.The learned Senior Counsel for the appellants/Mills brings to the notice of this Court the observations of the Honourable Supreme Court in ANZ Grindlays Bank Limited V. Union of India and others [2006 (1) LLN 21] wherein it is observed as follows:
"A plain reading of the reference made by the Central Government would show that it does not refer to any dispute or apprehended dispute between the bank and the Federation (second respondent). It does not refer to any demand or claim made by the Federation or alleged refusal thereof by the bank. In such circumstances, it is not possible to hold that on account of the settlement, dated 18 August 19096, arrived at between the bank and the Association (third respondent), any dispute or apprehended dispute has come into existence between the bank and the Federation (second respondent). The action of the bank in asking for a receipt from those employees, who are not members of the Association (third respondent) but wanted to avail of the benefit of the settlement, again does not give rise to any kind of dispute between the bank and the Federation (second respondent). Thus, the reference made by the Central Government for adjudication by the Industrial Tribunal is wholly redundant and uncalled for."
and contends that in the present case, there being no industrial dispute, the reference made by the Government is wholly a futile and uncalled for one.
46.Also, the learned Senior Counsel for the appellants /Mills urges that when the futility of reference can be demonstrated, on a bare reading of the terms of reference and admitted facts, then, no evidence is required to be considered for examining the issue and further, the validity of reference made by the State Government can be examined in the proceedings initiated under Article 226 of the Constitution of India.
47.The learned Senior Counsel for the appellants/Mills contends that there is a good reason for the workers to enter into a settlement instead of taking a chance before the Industrial Tribunal and in fact, settlement is to be preferred over an award being passed. Further, a settlement has been reached and the workers felt immediate peace and benefits and moreover, the Unions are part of Joint Action Council, who are not a different body. According to the learned Senior Counsel for the appellants/ Mills, there are two types of settlements (1) A settlement in the course of conciliation; (2) A settlement outside the conciliation and the workers can opt out of settlement and also enter into Section 18(1) settlement under the I.D. Act.
48.The learned Senior Counsel for the appellants submits that the Managements must show that there are industry-wise settlements and also that there is not even a single dispute pertaining to one industry and the other side cannot say that there is no settlement and 1692 mills of first category should be identified and the scale of pay must also be categorised.
49.The learned Senior Counsel for the appellants/Mills submits that 370 mills have gone before the Tribunal and an award has been passed in terms of settlement and in regard to others it is pending.
50.The learned Senior Counsel for the appellants projects a plea that the learned Single Judge in the course of his common order in W.P.No.18242 of 2001 and etc. batch dated 30.09.2002, in para 17, has rightly held that 'the reference purports to be one under Section 10(1) read with Section 10(5) of the Act and even assuming that in respect of some of the establishments there is no dispute, such establishments can be included in the reference by means of Section 10(5) of the Act' and cites the decision of the Honourable Supreme Court in National Engineering Industries Limited V. State of Rajasthan and others [(2000) 1 SCC at page 371] wherein it is held that 'where pursuant to identical charters of demands made by several unions, the management and a representative union reached a conciliation settlement to be operative immediately after the expiry of the previous settlement, the new settlement became binding on all workmen of the establishment including those belonging to a dissenting minority union.'
51.Further, in the aforesaid decision, at page 379, there is a mention that the appellant therein has challenged the State Government Notification inter alia contending that 'the charter of demands by the Workers' Union contained as many as 24 demands, most of which were already covered by the tripartite settlement and Reference could not have been made in respect of those very demands and moreover, the State Government failed to consider that the Workers' Union was not representing the majority of workers and could not have given notice in view of Section 19(6) of the Act etc.' Also, in the aforesaid decision, at pages 394 and 395, in para 25, it is, among other things, observed as follows:
"There can be many splinter groups, each forming a separate trade union. Under Section 4 of the Trade Unions Act, 1926 any seven or more members of a trade union can get the trade union registered under that Act. If every trade union having a few members is to go on raising a dispute and the State Government making reference again and again the very purpose of settlement is defeated. Once there is a representative union, which in the present case, is the Labour Union, it is difficult to see the role of the Workers' Union. If there are a number of trade unions registered under the Trade Unions Act, 1926 not entitled to be registered as representative unions and they raise disputes, industrial peace would be a far cry. Under Section 2 (oooo) of the Rajasthan Act "representative union" means a union for the time being registered as a representative union under the Rajasthan Act (Rajasthan Act 34 of 1958). Under Section 9-D of the aforesaid Rajasthan Act any union which has for the whole of the period of at least three months during the period of six months immediately preceding the calendar month in which it so applies under this section a membership of not less than fifteen per cent of the total number of workmen employed in the unit of an industry may apply in the prescribed form to the Registrar for registration as a representative union."
52.The learned Senior Counsel for the appellants/ Mills, in the aforesaid decision, has relied on the following observations of the Honourable Supreme Court in para No.10:
"In the counter-affidavit filed by the Workers' Union, the fact that the charter of demands of the Workers' Union was indentical to that of the Labour Union has been denied though if we refer to the writ petition filed by the Workers' Union, it has been so stated. This is how the Workers' Union said in its writ petition:
"The petitioner Union was also not asked to participate in those conciliation proceedings though the demand charter was identical in almost all the respects."
He draws the attention of the same to this Court and submits that such is not the case here because the individual employees have come to settlement.
53.According to the learned counsel for the appellants /Unions/Sangams, the Textile Industry is a public utility service and on 1.8.2001 a strike notice as per Rule 59(1) of the Tamil Nadu Industrial Rules was issued by the Union in respect of public utility services of Kovai and Periyar Districts Dravida Textile Workers Progressive Union (MLF) and 8 other Unions addressed to the President/ Secretary, Small Spinners Association (SISSPA), Coimbatore-18 intimating, in terms of Section 22(1)(c) of the I.D. Act, the Unions proposal to go on strike on 20.8.2001 or thereafter and that the Commissioner of Labour, Chennai-6 had informed the Secretary to Government, Labour and Employment Department, Chennai9 in Letter No.A3/15828/2001 dated 11.9.2001, among other things, mentioning that both the parties were unrelenting in their stand and as a consequence, it was not possible for the conciliation machinery to arrive at an amicable settlement of the larger issue of revision of wages and other allowances and therefore, no settlement is possible in this regard and accordingly sent his report as required under Section 12(4) of the I.D. Act stating that the conciliation talks initiated consequent to the notices of the strike dated 20.03.2001 and 01.08.2001 and 03.08.2001 issued by the Unions ended in failure and thereafter, taking note of the fact of socio-economic problem i.e. if the mills are closed, then it will affect the economy and well being of the State and in the interest of maintaining industrial peace, public order and supplies, the Government has passed the G.O.(D).No.688, Labour and Employment Department and G.O.(D).No.690, Labour and Employment Department, dated 13.09.2001.
54.The learned counsel for the appellants/Unions/ Sangams submits that the Government, by G.O.(D).No.688, Labour and Employment Department, dated 13.9.2001, has referred the charter of demands for adjudication by the Industrial Tribunal because of the conciliation failure report dated 11.9.2001 of Commissioner of Labour, Chennai and in fact, the Government also passed G.O.(D).No.690, Labour and Employment Department, on the same day, exercising its power under Section 10-B read with Section 23(b) of the Industrial Disputes Act directing interim relief of Rs.150/- per month per worker pending decision by the Tribunal on the demands referred for adjudication which payment will commence along with the wages for the month of September 2001 payable in October 2001 and the Government has invoked the emergency provision under Section 10-B of the Industrial Disputes Act and owing to the crisis Management, the Government has ordered for the interim relief to maintain industrial peace, public order and movement of supplies etc.
55.It is the further contention of the learned counsel for the appellants/Sangams that the administrative power under Section 10-B of the I.D. Act is like that of a police power and unless Section 10(1) power is exercised, there cannot be an invocation of Section 10-B of the Act and inasmuch as Section 10-B of I.D. Act does not visualise the hearing of the parties by the appropriate Government before an order is passed, the question of following the principles of natural justice does not arise.
56.Proceeding further, the learned counsel for the appellants/Unions/Sangams submits that the Government, while passing an order under Section 10-B of the I.D. Act, which is consequential to the order under Section 10(1) of the Act, need not hear the parties and in fact, as per Section 10(3) of the Act any money paid may be adjusted by the concerned employer.
57.Besides the above, the learned counsel for the appellants/Unions/Sangams contends that the power of the Government under Section 10(1) of the I.D. Act is of a quasi-judicial nature, whereas the order passed under Section 10-B of the I.D. Act is of an administrative nature.
58.The learned counsel for the appellants/Unions/ Sangams draws the attention of this Court to the observations made by the learned Single Judge in paras 29 and 30 to the common order dated 30.09.2002 in W.P.No.18242 of 2001 and etc. batch are run as follows:
"29. .... To say the least, the assertions made in the counter affidavit do not purport to justify at all the opinion as reflected in the impugned notification. The assertions in the counter affidavit give the impression as if the Government thought it fit for to pass order for maintaining public order or for securing public safety as highlighted by reference to the agitations in the shape of road block, dharna, etc. However, the order is not apparently based on such conclusion. The counter affidavit does not throw any light as to how it had come to the conclusion that it was necessary or expedient to pass order under Section 10-B for maintaining supplies and services essential for the life of the community or as to how the order was necessary for maintaining employment in cotton industry. Even the counter has not indicated as to how the proposed order was aimed at maintaining industrial peace in the establishment (or even establishments) in respect of which reference was made under Section 10(1) of the Act.
30. ... There cannot be any doubt that an order under Section 10-B is not to be passed for the mere asking or with a view to give effect to a particular declaration or theory of any official or functionary. The power under Section 10-B is to be exercised with due consideration and circumspection and it is not expected to be exercised in arbitrary manner. If the pre-requisite conditions are existing, the power to issue order is absolute. The fact that very wide powers have been conferred itself implies that such power must be exercised with due care and caution."
and contends that they are not correct and the same requires to be corrected in these Appeal Proceedings.
59.Further, the learned counsel for the appellants/ Unions/Sangams submits that the contention of the appellants/petitioners that the Government ought not to have passed the order under Section 10-B of the Act without complying with the principles of natural justice etc., as mentioned in para 31 of the common order of the learned Single Judge, is not correct in the eye of law.
60.The learned counsel for the appellants/Sangams cites the decision of this Court in Indian Bank Limited V. Industrial Tribunal, Madras and others [1963 2 LLJ 195 at page 196 (DB)] wherein it is observed as follows:
"The Industrial dispute in regard to to quantum of bonus payable for the year 1957 between the workmen and a banking company was referred for adjudication to the industrial tribunal by the Central Government.
Subsequently various items of disputes between the workmen and various banking companies in India were referred adjudication to the national tribunal and one of the items read as:
"Bonus -Principles and conditions under which payable, qualification for eligibility and method of computation after making provision for all matters for which provision is necessary or under any of the Acts applicable to the banks or which are usually provided for by banks."
The banking company which was a party to the reference to the national tribunal contended before the industrial tribunal that the earlier reference stood automatically quashed by virtue of the provisions of S.10(6) of the Industrial Disputes Act. The said contention was overruled by the industrial tribunal and the writ petition preferred by the banking company was also dismissed.
Dismissing the writ appeal preferred by the banking company, held:
The determination of the question in issue depends on the meaning to be given to the words "matter in adjudication" occurring in S.10(6)(a) of the Industrial Disputes Act. These words could only refer to the substantive question for determination of the tribunal. It cannot obviously refer to every step or decision come to with a view to arrive at the final adjudication. Preliminary, collateral or incidental matter, which may be necessary to be decided before adjudicating the actual question referred to, cannot be regarded as a matter for adjudication. The adjudication contemplated by S.10 is of a dispute and it follows that for the purpose of applying Cl.(6) of S.10, the dispute pending before the industrial tribunal and that before the national tribunal should be the same, so that the concerned workers may obtain the relief sought in the local tribunal from the national tribunal. Unless there is therefore an identity between the two references, one cannot replace or supersede the other."
61.He also relies on the decision of the Honourable Supreme Court in State of U.P. and others V. Basti Sugar Mills Co. Ltd., and others [1961 (1) LLJ 220 at page 225 (SC)] wherein it is observed as follows:
"The next argument of Mr.Pathak appears, at first sight, to be more formidable. He points out that undoubtedly an industrial dispute had arisen, and indeed it is upon that basis that the State Government proceeded to appoint a court of inquiry. Therefore, according to Mr.Pathak resort could be taken by the State Government only to the special provisions of Cl.(d) and not to the more general provisions of Cl.(b) of S.3. In other words, where there is an industrial dispute, the appropriate thing for the Government to do is to refer it for conciliation or adjudication under the provisions of Cl.(d) and not to deal with the matter by an executive order as it has done in this case. Mr.Pathak then refers to a further passage from the judgment of Bhargava, J., just cited which is as follows:
"It appears from the language that this provision was not meant for the purpose of dealing with individual dispute arising out of the application of a term or condition of employment and no power was granted to the State Government under this provision of law, to sit as an adjudicator to decide a dispute that might have arisen relating to the working and actual application of terms and conditions of employment already in force. The provision was for the purpose of enabling the State Government to vary the agreed terms and conditions of employment for purposes specified in S.3 of Uttar Pradesh Industrial Disputes Act, 1947, under the pressing necessities or expediency justifying such course of action."
We entirely agree with Mr.Pathak that the normal way of dealing with an industrial dispute under the Act would be to have it dealt with judicially either by conciliation or by adjudication and that judicial process cannot be circumvented by resort to executive action. The proceeding before a conciliator or an adjudicator is, in a sense, a judicial proceeding because therein both the parties to the dispute would have the opportunity of being heard and of placing the relevant material before the conciliator or adjudicator. But there may be an emergency and the Government may have to act promptly "for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or maintaining employment." It was, therefore, necessary to arm it with additional powers for dealing with such an emergency. Clause (b) of S.3 was apparently enacted for this purpose. An order made thereunder would be in the nature of a temporary or interim orders as would be clear from the words "for such period as may be specified" appearing therein and from the second proviso to S.3 Under this proviso where an industrial dispute is referred for adjudication under Cl.(d), an order made under Cl.(b) cannot be enforced after the decision of the adjudicating authority is announced by or with the consent of the State Government. It would, therefore, follow from this that where the Government has made an executive order, as it did in this case, under Cl.(b) of S.3, it is open to the aggrieved party to move the Government to refer the industrial dispute for conciliation or adjudication under Cl.(d). But in our opinion where once the Government has acted under Cl.(b) on the ground that it was in the public interest to do so, it would not be open to the Government to refuse to refere the dispute under Cl.(d) for conciliation or adjudication. Mr.C.B.Agarwal, who appeared for the State of Uttar Pradesh, conceded, and we think rightly, that this would be so and added that in case the State Government was recalcitrant, it could be forced to do its duty by the issue of a writ of mandamus by the High Court under Art.226 of the Constitution."
62.Further, the learned counsel for the appellants/ Unions/Sangams places reliance on the relevant observations of the said decision at page 225 and 226 which enjoin as follows:
"The opening words of S.3 themselves indicate that the provisions thereof are to be availed of in an emergency. It is true that even a reference to an arbitrator or a conciliator could be made only if there is an emergency. But then an emergency may be acute. Such an emergency may necessitate the exercise of powers under Cl.(b) and a mere resort to those under Cl.(d) may be inadequate to meet this situation. Whether to resort to one provision or other must depend upon the subjective satisfaction of the State Government upon which powers to act under S.3 have been conferred by the legislature. No doubt, this result is arrived at by placing a particular construction on the provisions of that section but we think we are justified in doing so. As Mr.Pathak himself suggested in the course of his arguments, we must try and construe a statue in such a way, where it is possible to so construe it, as to obviate a conflict between its various provisions and also so as to render the statute or any of its provisions constitutional. By limiting the operation of the provisions of Cl.(b) to an emergency we do not think that we are doing violence to the language used by the legislature. Further, assuming that the width of the language could not be limited by construction, it can be said that after the coming into force of the Constitution the provisions can, by virtue of Art.13, have only a limited effect as stated above and to the extent that they are inconsistent with the Constitution, they have been rendered void."
63.It is quite apt for this Court to point out that, in the aforesaid decision at page 226, the Honourable Supreme Court has, inter alia, held that '... The restriction placed upon the employer by such an order is only a temporary one and having been placed in the public interest would fall under Cl.(6) of Art.19 of the Constitution.'
64.The learned counsel for the appellants seeks in aid of the decision of Honourable Supreme Court in Basti Sugar Mills Co. Ltd., V. State of U.P. and others [1978 (2) LLJ at page 412] wherein it is observed as follows:
"The opening words of S.3 themselves indicate that the provisions thereof are to be availed of in an emergency. It is true that even a reference to an arbitrator or a conciliator could be made only if there is an emergency. But then an emergency may be acute. Such an emergency may necessitate the exercise of powers under Cl.(b) and a mere resort to those under Cl.(d) may be inadequate to meet this situation. Whether to resort to one provision or other must depend upon the subjective satisfaction of the State Government upon which powers to act under S.3 have been conferred by the Legislature.
Hungry families of restive workers in militant mood urgently ask for bonus for some festival or other for a short spell of cheer in a long span of sombre life. The State Government with economic justice and welfare of workers brooding over its head, is hardpressed for public order and maintenance of essential supplies. Immediate action may take trigger happy policing shape at emergency direction to make ad hoc payments, worked out in administrative fairness. This latter course may often by favoured. But some Governments may prefer to confer, persuade parties to concur and make binding orders. This requires legislative sanction. Hence, S.3. But such an improvised solution may leave one or the other or even both dissatisfied with regard to ultimate rights. While enforcing ad interim directive by the authority of law, the door is left ajar for judicial take over of the industrial dispute.
There is no basic inconsistency between the U.P. and the Central provisions."
65.In support of the contention that the Government while passing an order under Section 10-B of the I.D. Act need not hear the employer, the learned counsel for the appellants/Unions/Sangams places reliance on the decision of Honourable Supreme Court in Sultan Singh V. State of Haryana and another [(1996) 2 Supreme Court Cases 66] wherein it is held as follows:
"4. ... The appropriate Government is entitled to go into the question whether an industrial dispute exists or is apprehended. It would be only a subjective satisfaction on the basis of the material on record. Being an administrative order no lis is involved. Therefore, there is neither any need to issue any notice to the employer nor to hera him before making a reference or refusing to make a reference. Sub-section (5) of Section 12 of the Act does not enjoin the appropriate Government to record reasons for making reference under Section 10(1). It enjoins to record reasons only when it refuses to make a reference.
5.The need for hearing is obviated if it is considered on second occasion as even then if the Government makes reference, it does not cease to be an administrative order and so is not incumbent upon the State Government to record reasons therein. Therefore it is not necessary to issue notice to the employer nor to consider his objections nor to hear him before making a reference. Therefore, the High Court was wholly wrong in its conclusion that before making reference on the second application, it was incumbent upon the State Government to give notice to the employer and to give an opportunity to him and record reasons for making reference."
66.In this connection, we deem it appropriate to refer to the Statement of Objects and Reasons pertaining to Act 36 of 1982 viz., The Industrial Disputes (Tamil Nadu Amendment) Act 1982 which read as follows:
"In the interest of maintaining industrial peace, public order and supplies and services essential to the life of the community, it is considered desirable that when industrial disputes are referred to Courts or Tribunals under Section 10(1) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), the Government should have necessary power to require the employers or the workmen or both to observe such terms and conditions of employment as may be specified by the Government and to require any public utility service not to close the said service till such time as the Courts or Tribunals pass their awards. It has therefore, been decided to vest the Government with the necessary power in this regard.
2.The Bill seeks to achieve the above object."
67.The learned Advocate General appearing for the appellants/Government submits that applying the principles laid down by the Honourable Supreme Court in Sultan's case [(1996) 2 Supreme Court Cases at page 66] no notice of hearing is contemplated for issuance of an order under Section 10-B of the Act by the Government and the said order passed by the Government under Section 10-B of the Act is purely an administrative order by which the Government merely takes into consideration the existence of industrial disputes or an apprehended dispute and in fact, there is no lis involved and the State Government is following the law of the land and as a matter of fact, the annexure to G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 contains 1700 mills in Tamil Nadu employing two lakhs workers and when the strike notice has been issued under Section 22 of the Industrial Disputes Act by the Unions, the Government take steps in preventing the strike and if the mill workers go on strike, then it will be socio-economic situation and that the State will lose its exchequer and also the proposed strike will spread to the State which will result in production loss etc. and Section 10 of the I.D. Act is a general or sub order. It is the further contention, on the side of the appellants/ Government, that the industry-wise reference is covered under Sections 10(1) and 10(5) of the I.D. Act and the State Government has formed an subjective opinion in issuing the two G.Os viz., G.O.(D).No.688, Labour and Employment Department, and G.O.(D).No.690, Labour and Employment Department, dated 13.09.2001 in question and the power on invoking Section 10-B is inherent with the Government and if the Government feels that as a temporary measure, to smoothen the industrial fire, to maintain peace and to give some relief to workers, it can pass appropriate orders and bifurcating the two G.Os. in question by the learned Single Judge is clearly a wrong one.
68.The contention of the learned Advocate General appearing for the Government is that there may be emergency situation in which the State Government may have to act promptly and to balance the situation the issuance of G.O.(D).No.688, Labour and Employment Department, dated 13.9.2001 by referring the charter of demands to the Tribunal for its decision and the order passed in G.O.(D).No.690, Labour and Employment Department, dated 13.9.2001 ordering interim relief are valid ones and in fact, the order of the Government in awarding interim relief is a temporary one pending decision of the Tribunal in the reference, which is also a reasonable restriction under Article 19(6) of the Constitution and therefore, prays for setting aside the order of the learned Single Judge passed in the batch of writ petitions calling in question the G.O.(D).No.690 dated 13.9.2001 which relates to the direction regarding the interim relief and lumpsum payment and consequently, to allow the Appeals.
69.In reply, the learned Senior Counsel for the appellants/Mills submits that the Unions in June 1999 projected the charter of demands and on 20.3.2001 a strike notice was given and the strike was deferred and that discussions took place on 04.01.2001, 23.01.2001, 19.02.2001 before the Joint Commissioner of Labour, Coimbatore and later, the discussions took place on 16.03.2001 before the Labour Commissioner, Chennai etc. and there are 7 categories of Textile Mills and the I category of mills were governed by the Vardan Award of 1987 (VDA of 35 Ps above 2250 points, Rs.63 as HRA etc.) and improved the same under Natarajan Award of 1996 (VDA at 39 Ps above 4800 Points, FDA Rs.892.50 and Rs.167 as HRA, LTC etc) and are continuing to pay the same now and the II-category of the mills are governed by category I, but now running on conversion by third parties making little or no profit. Further, the III category of mills referred to the mills which have entered into fresh settlements after termination of Natarajan Award subsisting settlement for permanent workmen etc. and the IV category refers to those mills governed by Natarajan award; but have introduced VRS to all workmen; subsequently, fresh recruitment and a new settlement (as apprentices/casuals etc.) which are subsisting and the V category refers to mills which have extended the previous settlement/award for a further period, which are subsisting, the VI category of mills refers to those which have been declared as "sick undertaking" by BIFR or the process is before the Board and the VII-category refers to the mills which were set up after 1993-94 and were not parties to Natarajan Award.
70.It is the further contention of the learned Senior Counsel for the appellants/Mills that the file Notings of the Government dated 10.04.2001 speaks of the proposed strike which may result in affecting the life of general public and therefore, the order under Section 10-B of the I.D. Act should be quashed.
71.The learned Senior Counsel for the appellants/Mills submits that during the pendency of conciliation for three days they cannot go on strike and out of 270 mills, 218 are on strike and the strike is, per Senior Counsel, an illegal one and the strike situation in Coimbatore was 176/242, in Erode 32/79 and Salem 10/58 and in fact, on 21.08.2001 there was no law and order problem and situation was under control and the Joint Action Council of the Unions/Sangams tried to extract one commitment after another from the Government while preparing itself for the strike and the following strike details:
Date Total Kovai Salem Erode Total Mills
------- ----- ----- ----- ----- ------
20.8.01 270 176 10 32 218 21.8.01 250 179 4 23 206 22.8.01 231 231 3 19 190 show that the strike was pre-dominent in Kovai, Salem and Erode and the tabulation shows that strike in the mills were coming down.
72.The learned Senior Counsel for the appellants/Mills submits that there is no factual basis that on 13.9.2001 the strike prolonged and there is no justification at all for the strike notice to be issued in 2001 and there is vague allegation that the Natarajan Award expires and all the reasons set out in the counter filed by the Government are not in the G.O. and even though the Government can pass an order to its subjective satisfaction, it must be an objective one and if the relevant materials are absent, then, the said order of the Government can be reviewed and in support of the said contention cites the decision of the Honourable Supreme Court in Barium Chemicals Ltd. and another V. Company Law Board and Others [AIR 1967 Supreme Court 295 at page 323] wherein, at paragraph 60, it is observed as follows:
"In Estate and Trust Agencies 1927 Ltd. V. Singapore Improvement Trust, 1937 AC 898: (AIR 1937 PC 265), a declaration made by the Improvement Trust under S.57 of the Singapore Improvement Ordinance 1927 that the appellants' property was in an insanitary condition and therefore, liable to be demolished was challenged. The Privy Council set aside the declaration on two grounds: (1) that though it was made in exercise of an administrative function and in good faith, the power was limited by the terms of the said ordinance and, therefore, the declaration was liable to a challenge if the authority stepped beyond those terms, and (2)that the ground on which it was made was other than the one set out in the Ordinance. In Ross Clunis V. Papadopoullos, 1958-1 WLR 546, the challenge was to an order of collective fine passed under Regulation 3 of the Cyprus Emergency Powers (Collective Punishment) Regulations, 1955 which provided that if an offence was committed within any area of the colony and the Commissioner "has reason to believe" that all or any of the inhabitants of that area failed to take reasonable steps to prevent it to render assistance to discover the offender or offenders it would be lawful for the Commissioner with the approval of the Governor to levy a collective fine after holding an inquiry in such manner as he thinks proper subject to satisfying himself that the inhabitants of the area had been given an adequate opportunity of understanding the subject-matter of the inquiry and making representations thereon. The contention was that the only duty cast on the Commissioner was to satisfy himself of the facts set out in the Regulation, that the test was a subjective one and that the statement as to that satisfaction in his affidavit was a complete answer to the contention of the respondents. Rejecting the contention the Privy Council observed:-
"Their Lordships feel the force of the argument, but they think if it could be shown that there were no grounds upon which the Commissioner could be so satisfied, a Court might infer either that he did not honestly form that view or that in forming it he could not have applied his mind to the relevant facts."
"Though an order passed in exercise of power under a statue cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts."
73.The pith and substance of the contention of the learned counsel for the appellants/Mills is that the existence of circumstances is a condition precedent to the forming of an opinion and if the existence of the circumstances is questioned, then it is for the Government to establish the same notwithstanding the fact that the said opinion formed by the Government is a subjective process taking note of the relevant circumstances before passing the subject matter of G.Os. in question.
74.From the aforesaid decision at page 320 at para 59, the learned counsel for the appellants/Mills also relies on the observations of the Honourable Supreme Court, which run as follows:
"59.But the contention which calls for a more serious consideration is that the circumstances disclosed in para.14 of the Chairman's affidavit and on which he is said to have formed his pinion were circumstances extraneous to S.237(b) and hence the order was ultra vires the section. The contention a two-fold one, (1)that though under Cl.(b)the opinion of the authority is subjective there must exist circumstances set out in the clause which are conditions precedent for the formation of the opinion, and (2) that assuming that this is not so, since the Chairman has disclosed the circumstances on which he formed the opinion, the Court can examine them and see if they are relevant for an opinion as to fraud or an intent to defraud. Reliance was placed on Paras.14 and 16 of the Chairman's affidavit to show that the circumstances there stated show that in passing the order, matters totally extraneous to the section were taken into account rendering the order ultra vires Cl.(b) of S.237/ The other affidavits do not matter much as they only repeat what the Chairman has stated in his affidavit. The construction of Cl.(b) suggested by Mr.Setalvad was that the clause requires two things, (1)the opinion of the Central Government, in the present case of the Board, and (2)the existence of circumstances suggesting that the company's business was being conducted as laid down in sub-cl.(i) or that the persons mentioned in sub-cl.(ii) were guilty of fraud, misfeasance or misconduct towards the company or any of its members. According to this construction, though the opinion its subjective the existence of circumstances set out in Cl.(b) is a condition precedent to the formation of such opinion and, therefore, even if the impugned order were to contain a recital of the existence of those circumstances the Court can go behind that recital and determine whether they did in fact exist. The learned Attorney-General opposed this construction and argued that the clause was incapable of such dichotomy, that not only the opinion was subjective but that the entire clause was made dependent on such opinion, for what the clause lays down is that the authority must come to an opinion on materials before it that there exit circumstances suggesting fraud or intent to defraud, etc. Such dichotomy, according to him, is impossible and not reasonable because it cannot be that the authority must first ascertain by holding an inquiry that there are circumstances suggesting fraud or intent to defraud, etc., and then form a subjective opinion that those circumstances are such as to suggest those very things. He emphasised that the words "opinion" and "suggesting" were clear indications that the entire function was subjective, that the opinion which the authority has to form is that circumstances suggesting what is set out in sub-cls.(i) and (ii) exist and, therefore, the existence of those circumstances is by itself a matter of subjective opinion. The legislature having entrusted that function to the authority, the Court cannot go behind its opinion and ascertain whether the relevant circumstances existed or not."
75.That apart, the learned counsel for the appellants/ Mills refers to the decision of the Honourable Supreme Court in The State of Bombay V. K.P.Krishnan [AIR 1960 SC 1223] wherein it is observed thus:
"The order passed by the Government under S.12(5) may he an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny; **** nevertheless if the Court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane, then the Court can issue and would be justified in issuing a writ of mandamus even in respect of such an administrative order."
76.The learned counsel for the appellants/Mills relies on the observation of Honourable Supreme Court in para 64 of the decision in Barium Chemicals Ltd. and another V. Company Law Board and Others [AIR 1967 Supreme Court 295 at page 325] wherein it is observed as follows:
"64.The object of S.237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object. Clause (a) does not create any difficulty as investigation is instituted either at the wishes of the company itself expressed through a special resolution or through an order of the Court where a judicial process intervenes. Clause (b), on the other hand, leaves directing an investigation to the subjective opinion of the government or the Board. Since the legislature enacted S.637(i)(a) it knew that government would entrust to the Board its power under S.237(b). Could the legislature have left without any restraints or limitations the entire power of ordering an investigation to the subjective decision of the Government or the Board? There is no doubt that the formation of opinion by the Central Government is a purely subjective process. There can also be no doubt that since the legislatures has provided for the opinion of the government and not of the Court such an opinion is not subject to a challenge on the ground of propriety, reasonableness or sufficiency. But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist? The legislature no doubt has used the expression "circumstances suggesting". But that expression means that the circumstances need not be such as would conclusively establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an intent or purpose is still to be adduced through an investigation. But the expression "circumstances suggesting" cannot support the construction that even the existence of circumstances is a matter of subjective opinion. That expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause permitted the Authority to say that it has formed the opinion on circumstances which in its opinion exist and which in its opinion suggest an intent to defraud or a fraudulent or unlawful purpose. It is equally unreasonable to think that the legislature could have abandoned even the small safeguard of requiring the opinion to be founded on existent circumstances which suggest the things for which an investigation can be ordered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process. This analysis finds support in Gower's Modern Company Law (2nd Ed.), p. 547 where the learned author, while dealing with S. 165(b) of the English Act observes that "the Board of Trade will always exercise its discretionary power in the light of specified grounds for an appointment on their own motion" and that "they may be trusted not to appoint unless the circumstances warrant it but they will test the need on the basis of public and commercial morality." There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in sub-clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute."
and submits that even though the formation of opinion by the Government is subjective, the one requirement or ingredient or more ingredients of Section 10-B are to be satisfied and if it is otherwise, then a Court of Law can interfere under Article 226 of the Constitution of India.
77.The learned counsel for the appellants/Mills relies on the decision in Express Newspapers Pvt. Ltd. and others V. Union of India and others [AIR 1986 Supreme Court 872 at page 924] wherein the Honourable Supreme Court at para 114 has held as follows:
"114.The petitioners have pleaded the facts with sufficient degree of particularity tending to show that the impugned notices were wholly malafide and politically motivated; mala fide, because the impugned notice or re-entry upon forfeiture of lease dt. March 10, 1980 issued by the Engineer Officer, Land & Development Office under Cl. 5 of the indenture of lease dt. March 17, 1958 for alleged breach of Cls.2(14) and 2(5) which in fact were never committed and the notice dt. March 1, 1980 by the Zonal Engineer (Building), City Zone, Municipal Corporation for demolition of new express Building where the printing press is installed under Ss.343 and 344 of the Delhi Municipal Corporation Act were really intended and meant to bring about the stoppage of the publication of the Indian Express which has throughout been critical of the Government in power whenever it went wrong on a matter of policy or in principle. Also, mala fide because they constitute misuse of powers in bad faith. Use of power for a purpose other than the one for which the power is conferred is mala fide use of power. Same is the position when an order is made for a purpose other than that which finds place in the order."
Moreover, the learned counsel in the aforesaid decision has also relied on the observation of the Honourable Supreme Court at para 116 which is as follows:
"116.Professor de Smith in his monumental work the Judicial Review of Administrative Action, 4th edition at Pp.335-36 says in his own terse language:
"The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred ..... A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise."
He then goes on to observe:
"If the Court concludes that the discretionary power has been used for an unauthorized purpose it is generally immaterial whether its repository was acting in good or bad faith. But there will undoubtedly remain areas of administration where the subject matter of the power and the evident width of the discretion resposed in the decision-maker render its exercise almost wholly beyond the reach of judicial review. In these cases the Courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in good faith in accordance with the prescribed purposes. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, the Courts will be prepared to set aside a judgment or order procured or made fraudulently despite the existence of a generally worded formula purporting to exclude judicial review."
Bad faith is here understood by the learned author to mean intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility. In requiring statutory powers to be exercised reasonably, in good faith, and on correct grounds, the Courts are still working within the bounds of the familiar principle of ultra vires. The Court assumes that Parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many well-known cases, on the subject. A necessary corollary is that, as usual throughout administrative law, we are concerned only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence."
78.The learned counsel for the appellants/Mills draws the attention of this Court to the decision of this Court in O.N.G.C.Madras Port Contract Employees' Union rep. By its Secretary V. O.N.G.C. Madras Port Contract Employees' Union The Management of Oil and Natural Gas Corporation Ltd., rep. By its Regional Director, Chennai and others [2005 (2) CTC 1] at page 6 at para 22 wherein it is observed thus:
"22.However, the law is no well settled that even an administrative order is subject to judicial review, though on much more limited grounds than a quasi-judicial order. In other words, the grounds for challenging an administrative order are much narrower than the grounds available for challenging a quasi-judicial order. However, it cannot be said that an administrative order can never be challenged at all."
79.Further, the learned counsel for the appellants/ Mills, in the aforesaid decision relies on paragraph 27, wherein it is laid down as follows:
"27.When even the decision of the President of India under a Constitutional provision is subject to judicial review (though on very limited grounds) there can be no doubt that the decision of the Central Government under Section 10 of the Industrial Disputes Act will also be subject to judicial review, though again on very limited grounds. Hence there is no total exclusion of judicial review against such a decision. One of the grounds given for judicial review in Satpal V. State of Haryana, 2000 (5) SCC 170 is non-application of mind before taking the decision or reliance on some extraneous considerations. (the Wednesbury Principle)."
80.Added further, he also relies on the observation of this Court made in paragraph 35, in the above quoted judgment, which runs as follows:
"35.As regard reference orders under Section 10(1) of the Industrial Disputes Act, the Supreme Court in National Engineering Industries Ltd. V. State of Rajasthan and Others, 2000 (1) SCC 371 observed (vide paragraph 24):
"It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of an Industrial Dispute, which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference."
81.Besides the above, the learned counsel for the appellants is relied on the observation of this Court made in the aforesaid decision at para 48 which is quoted below:
"48.As observed in the decisions referred to above, even for taking an administrative decision, the authority concerned must apply his mind to the relevant considerations and the relevant materials before it. In this case, the Central Government should have atleast applied its mind to the objections raised by the writ petitioner namely, that workmen concerned were not the workmen of the writ petitioner but that of the contractor and moreover the claims of the workmen were already settled. The writ petitioner had specifically alleged that the petitioner was not the direct employer of the workers concerned at any point of time, and this contention had been accepted earlier. No doubt, it is not necessary that there should be some fresh facts for changing its opinion but nevertheless it was incumbent upon the Central Government to have applied its mind to the objections of the writ petitioner that the workmen concerned were not its employees but the employees of the contractor. If the employees concerned were not the employees of the writ petitioner obviously there was no dispute between them could be referred for adjudication. Also, if the claims of the workmen concerned had already been settled there was no dispute which could be referred. The learned Single Judge has only remitted the matter to the Central Government for a fresh consideration and we see nothing objectionable or illegal in this direction."
82.The learned counsel for the appellants seeks in aid the decision of the Honourable Supreme Court in Rameshwar Prasad and Others V. Union of India and another [2006 (3) CTC 209 at page 300] wherein, at paragraph 209, it is observed as follows:
"209.From the S.R.Bommai's decision, it can be discerned that the majority was of the view that so far as the scope and ambit of judicial review is very limited when a proclamation under Article 356 is questioned and similar parameters would apply in a case where a Notification is passed under Article 174(2)(b) dissolving the State Legislative Assembly. The plea raised by the Additional Solicitor General, Shri Gopal Subramaniam that the Notification dissolving Assembly is of a legislative character and could be challenged only on the ground of absence of legislative competence or ultra vires of the Constitution, cannot be accepted. This plea was raised in Rajasthan's case as well as in S.R.Bommai's case, but it was rightly rejected in both the cases. However, the power exercised by the President is exceptional in character and it cannot be treated on par with an administrative action and grounds available for challenging the administrative action cannot be applied. In view of Article 74(2) of the Constitution, the Court cannot go into the question as to what manner of advice was tendered by the Council of Ministers to the President. The power conferred on the President is not absolute; it has got checks and balances. It is true that the power exercised by the President is of serious significance and it sometime amounts to undoing the will of the people of the State by dismissing the duly constituted Government and dissolving the duly constituted Legislative Assembly. Any misuse of such power is to be curbed if it is exercised for mala fide purposes or for wholly extraneous reasons based on irrelevant grounds. The Court can certainly go into the materials placed by the Governor which led to the decision of dissolving the State Assembly."
83.Yet another decision of the Honourable Supreme Court in Bhikhubhai Vithlabhai Patel and others V. State of Gujarat and another [(2008) 4 Supreme Court Cases 144 at page 155 and 156] is relied on the side of the appellants/Mills wherein at paragraphs 21 to 24 it is observed as follows:
"21.It is true that the State Government is not bound by such opinion and is entitled to take its own decision in the matter provided there is material available on record to form opinion that substantial modifications in the draft development plan were necessary. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan.
22.Any opinion of the Government to be formed is not subject to objective test. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming its opinion. But there must be material based on which alone the State Government could form its opinion that it has become necessary to make substantial modification in the draft development plan.
23.The power conferred by Section 17(1)(a)(ii) read with proviso is a conditional power. It is not an absolute power to be exercised in the discretion of the State Government. The condition is formation of opinion -subjective, no doubt that it had become necessary to make substantial modifications in the draft development plan. This opinion may be formed on the basis of material sent along with the draft development plan or on the basis of relevant information that may be available with the State Government. The existence of relevant material is a precondition to the formation of opinion. The use of word "may" indicates not only a discretion but an obligation to consider that a necessity has arisen to make substantial modifications in the draft development plan. It also involves an obligation to consider which of the several steps specified in sub-clauses (i), (ii) and (iii) should be taken.
24.The proviso opens with the words "where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary,...". These words are indicative of the satisfaction being subjective one but there must exist circumstances stated in the proviso which are conditions precedent for the formation of the opinion. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan."
84.Also, in the aforesaid decision, at page 157, the learned counsel relies on the observations of the Honourable Supreme Court in para 28 wherein it is held thus:
"28.In the case in hand, was there any material before the State Government for its consideration that it had become necessary to make substantial modifications to the draft development plan? The emphatic answer is, none. The record does not reveal that there has been any consideration by the State Government that necessity had arisen to make substantial modifications to the draft development plan. We are of the view that there has been no formation of the opinion by the State Government which is a condition precedent for exercising the power under the proviso to Section 17(1)(a)(ii) of the Act."
85.The learned counsel for the appellants/Mills in the aforesaid decision at page 159 refers to paragraph 31 wherein it is observed as follows:
"31.In ITO V. Lakhmani Mewal Das (196) 3 SCC 757 this Court construed the expressions "reason to believe" employed in Section 147 of the Income Tax Act, 1961 and observed that the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully or truly all material facts. It is not any or every material, howsoever vague and indefinite or distant which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. The reason for the formation of the belief must be held in good faith and should not be a mere pretence."
86.He further relies on the observation made in para 35 which is as follows:
"35.Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled that public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the decision-making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (Commissioner of Police V. Gordhandas Bhanji AIR 1952 SC 16 and Mohinder Singh Gill V. Chief Election Commissioner, (1978) 1 SCC 405: AIR 1978 SC 851)."
87.However, the learned counsel for the appellants lays emphasis on the observations made by the Honourable Supreme Court in the aforesaid decision at page 161 at para 37 wherein it is laid down as follows:
"37. On consideration of the facts and the material available on record, it is established that the State Government took the action proposing to make substantial modifications to the plan without forming of any opinion, which is a condition precedent for the use of power under proviso to Section 17(1)(a)((ii). The power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgment of the right to property. Statutory provisions enabling the State or its authorities to impose restrictions on the right to use one's own land are required to be construed strictly. The legislature has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Section 17 and more particularly the proviso to Section 17(1)(a)(ii) prescribes some of the conditions precedent for the exercise of power. The order proposing to make substantial modifications, in breach of any one of those conditions, will undoubtedly be void. On a successful showing the order proposing substantial modifications and designating the land of appellants for educational use under Section 12(2)(o) of the Act has been made without the State Government applying its mind to the aspect of necessity or without forming an honest opinion on that aspect, it will, we have no doubt, be void."
88.Projecting his next limb of argument, the learned counsel for the appellants/Mills submits that a Memorandum of Settlement dated 14.5.2001, as per Section 18(1) of the I.D. Act, 1947 has been entered into between the following Managements and their workmen:
The Management of Premier Mills Limited, Belathur V.Sankaran, Vice President (Manufacturing) M.Venkatraghavan, Senior Personnel Officer and the
1)Premier Mills National Textiles Employees Union-DRP No.174 (INTUC) S.Udayakumar T.No.851 S.Manoharan T.No.8638
2)Premier Mills Anna Thozhilalar Sangam-DRP No.336(ATP) A.Selvaraj T.No.5210 M.Kalimuthu T.No.1058
3)Dharmapuri District Dravida Panchalai Thozhilalar Munnetra Sangam DRP No.118 (MLF) Brach: Premier Mills K.Selvaraj T.No.1017 M.Balasubramanian T.No.1551
4)Dharmapuri District Dravida Panchalai Thozhilalar Munnetra Sangam DRP No.118 (LPF) Brach: Premier Mills G.Mani T.No.2723 N.Vadivel T.No.8627
5)Premier Mills National Labour Union DRP No.381 (NLO) G.Ayyalusamy T.No.6230 C.Subramaniam T.No.8920 and the clause 10 of the said settlement reads that 'It is agreed that all the existing settlements as stated in the short recital of this settlement shall continue to govern the parties subject to modifications herein before provided.' and even clause 11 says that 'The settlement shall be in force for a period of 5 years with effect from 14.05.2001. Even after that period, this settlement shall continue to bind both the parties till a fresh settlement is reached' and that the Letter No.A3/15828/2001 dated 11.9.2001 of the Commissioner of Labour, Chennai-6 addressed to the Secretary to Government, Labour & Employment Department, Chennai-9 is the only document viz., conciliation failure report available to the Government and in 1700 Textile Mills and 2.5 lakhs workmen are concerned with and none of the reasons ascribed by the Government in invoking Section 10-B of the I.D. Act, while issuing G.O.(D).NO.690, Labour and Employment Department, dated 13.09.2001, will fall under the requirement envisaged under Section 10-B of the Act and in the conciliation failure report, the mentioning of the following will show that there is industrial peace and inasmuch as the ingredients of Section 10-B of the I.D. Act are not present, the Government could not have invoked Section 10-B of the I.D. Act and further delay in adjudication cannot be a ground to invoke Section 10-B of the I.D. Act.
89.Continuing further, the learned Senior Counsel for the appellants/Mills contends that maximum 300 mills went on strike and not all the 1700 mill workers went on strike and therefore, there is no question of invoking the power under Section 10-B of the I.D. Act on all the mills.
90.Also, it is the contention of the learned Senior Counsel for the appellants/Mills that in G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 issued by the Government, there is no indication that which mill will fall under Section 10(5) of the Act and which mill does not fall under Section 10(5) of the I.D. Act.
91.The learned Senior Counsel for the appellants/Mills submits that the Government, in the common counter filed in the writ petitions in para 20, has stated that it can pass an order under Section 10-B of the I.D. Act consequent to an order of reference under Section 10(1) of the I.D. Act. As a matter of fact, in counter, the Government did not say that it is a surplusage one and in any event, the Government lacked jurisdiction in respect of the mills that fell under Section 10(5) of the I.D. Act and therefore, the Government cannot invoke the ingredients of Section 10-B of the I.D. Act.
92.According to the learned Senior Counsel for the appellants, the power under Section 10-B of the I.D. Act to be exercised is not a routine exercise of power and no emergency situation has arisen in the case on hand to invoke the power as per Section 10-B of the I.D. Act.
93.The learned Senior Counsel for the appellants/Mills cites the decision in State of Karnataka and others V. BPL Group of Companies Karmikara Sangha, Bangalore and others [2003 (2) LLN 999] wherein at paras 15, 16, 17 and 18 it is observed as follows:
"15.Now the question arises whether the same view can be taken with regard to exercise of power of the State Government under S.10-B of the Act as well. In our opinion, as rightly pointed out by Sri Kasturi, learned counsel appearing for the respondent-Corporate bodies, this question has been expressly answered by the Supreme Court in the case of State of Assam and another V. Bharat Kala Bhandar, Ltd., and others (A.I.R. 1967 S.C. 1766], while considering a provision almost pari materia, with S.10-B of the Act.
16.In Bharat Kala Bhandar, Ltd., case (vide supra, sub-rule (4) of rule 126AA of the Defence of India Rules, 1962, had fallen for consideration before the Supreme Court. This rule read as under:-
"Rule 126AA(4).- The Central Government or the State Government may by order regulate the wages and other conditions of service of persons or of any class of persons engaged in any employment or class of employment to which this rule applies".
17.The above provision was made to meet emergent situations and the measures were temporary in nature. While tracing the purpose of the above sub-rule, the Supreme Court has held that this sub-rule has been enacted to see that there is contended labour force during an emergency so that essential services in declared employments can be maintained. The Supreme Court found that the power conferred in the above provision was of far-reaching nature in the field of industrial relations and may have the effect of disturbing all such relations for the duration of a real emergency. The Supreme Court after posing the question to itself that whether in the absence of express words in sub-rule (4) to indicate that the power is to be exercised purely on subjective satisfaction of the Government, it should be held that the order under sub-rule can be passed purely on subjective satisfaction. The question so framed was answered thus:
"When the effect of orders passed under sub-rule (4) can be so far-reaching and so wide in its impact we would be loath to hold that such wide and far-reaching powers were conferred on Government to be exercised purely on its subjective satisfaction without even consulting the interests concerned specially when the language is not plain and unambiguous and there is no indication in the sub-rule itself that the power can be exercised purely on the subjective satisfaction of Government. We are not unmindful of the fact that the power under sub-rule(4) has to be exercised in a real emergency. But the ambit of the power therein is analogous to the power of Industrial Courts. The power under sub-rule(4) may be exercised instead of referring industrial disputes relating to wages and other conditions of service to Industrial Tribunals. We are also not unmindful of the fact that in a real emergency, decisions may have to be taken quickly and delay inevitable in the elaborate procedure provided for resolution of industrial disputes by Industrial Tribunals may not be desirable. Even so in the absence of express words in sub-rule(4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be prepared to hold that that is what sub-rule(4) indicates. We have already said that the effect of sub-rule (4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub-rule(4) it should even in a real emergency consult the interests concerned before taking action thereunder".
17A.It has further been held that:
"It is not for us to indicate in detail what should be the procedure adopted by Government in a real emergency to consult the interests concerned, as that is a matter for Government to evolve for itself. But we may indicate that some kind of public notice to the particular interests should be given indicating what the Government intends to do and inviting representations from those interests and if necessary calling for data from them and also giving an oral hearing to the representatives of the interests concerned. This does not mean that notice should be given to individual employers or employees. Nor do we mean to say that this consultation should be of the same amplitude as adjudication by a quasi-judicial Tribunal. It is not necessary that oral evidence should be taken and witnesses should be called, examined and cross-examined and documents produced or called for and arguments heard as if the matter was being tried by a quasi judicial Tribunal. But some kind of collection of data with the help of the interests concerned and some kind of hearing or conference with the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred under sub-rule(4) for we have no doubt that this sub-rule does not intend that Government should have power of the far-reaching nature conferred thereunder purely on its subjective satisfaction. Further, if such consultation is necessary under sub-rule(4) and it seems to us that it is necessary before an order can be passed thereunder, it would in our opinion be more convenient to hold consultation employment by employment, for it may be that needs of every employment may not be the same. After such consultation and consideration of data collected by Government itself as well as supplied by the interests concerned, it would be open to Government to pass an order under sub-rule(4) indicating that it has considered the data and consulted the interests concerned. We have indicated this procedure merely to illustrate what we say; but it is for Government to evolve such procedure as it considers will meet the needs of sub-rule(4). Once it is clear, as we have no doubt that it is so, that the order under sub-rule(4) is not to be passed merely on the subjective satisfaction of Government, it seems to us that even in a real emergency this consultative procedure should not take long and should be over within a few weeks".
18.Now again reverting to S.10-B of the Act, it is clear from its provisions that the power to issue orders regarding terms and conditions of service pending settlement of dispute can be exercised by the Government subject to fulfilment of certain conditions precedent. Firstly, the Government can resort to this provision only after it has formed its opinion that an industrial dispute exists or apprehended and thereupon refer the same for adjudication to the Tribunal. Secondly, it is further to form an opinion that passing of an order under S.10-B is necessary or expedient to meet the emergent situations mentioned therein. The second condition requires the Government to form an opinion regarding the Government to form an opinion regarding existence of circumstances envisaged therein and such opinion can be formed only on the basis of data available with the Government. Further, any order passed under S.10-B will necessarily have some civil consequences affecting interest of either of the disputing parties. Keeping in view these aspects, as even held by the Supreme Court though in the context of another provision as notice above, it is appropriate and expedient to hold that the power of the Government under S.10-B of the Act cannot be said to be purely administrative or that it can be based on just subjective satisfaction of the Government."
and contends that audi alteram partem Rule has many facets and two of them being: (1) a notice of the case to be met; (2)an opportunity to explain must be given and these two cannot be sacrificed at the alter of administrative convenience or otherwise.
94.The learned Senior Counsel for the appellants/Mills submits that when he speaks of hearing it is not a full-fledged hearing and some kind of opportunity will have to be given, of course the same depends upon the exigency and in reality, Section 10-B of the I.D. Act affects the appellants/Mills leading to civil consequences and Section 29-A of the I.D. Act introduced by Tamil Nadu Act 36 of 1982 with effect from 15.8.1982 speaks of penalty and imprisonment is mandatory.
95.The learned Senior Counsel for the appellants/Mills submits that many settlements have been reached between the appellants/Mills and the workmen and after a lapse of 8 years it cannot be said by workmen that Section 10-B can be invoked since 10-B (2) is valid only for six months.
96.Countering the submissions of the learned Senior Counsel for the appellants/Mills, the learned counsel for the Unions/Sangams submits that workers are languishing without any interim relief and still the industrial dispute is pending and the capital is with the appellants/Mills and for the last 8 years the workers have not been paid the benefits and they are attending work regularly and when the workers are giving production on old wages, the Section 10-B interim relief and lumpsum payment comes by way of Government Order and denying payment to workers is concerned with public interest and therefore, all the mills concerned should be governed by the general adjudication affecting all the workers concerned in the industry and in this regard, one has to see the situation prevailing as on the date of reference made by the Government.
97.The learned counsel for the appellants/Unions/ Sangams submits that only 300 mills have arrived at settlement with workers and refers to the decision of the Honourable Supreme Court in Tamil Nadu Joint Action Council and Textile Trade Union and others V. B & C Mills Staff Union and Another [1987 (1) LLJ 105] wherein it is held that 'Terms of reference as already mentioned show that the dispute was Industry-wise and not establishment-wise and the Government should not have at this stage taken on itself the task of deciding whether these mills should or should not be governed by the general adjudication affecting all the workmen in the Industry and the State Government is therefore directed to include forthwith the ten mills in the reference to the Tribunal.'
98.It is to be noted that the opinion of the Government, as per Section 10(1) of the I.D. Act, in referring the dispute is subjective. Also it is open to an individual seeking to assail the order of the Government to show what has been referred to by the Government is not an industrial dispute at all within the meaning of the I.D. Act. It cannot be gainsaid that it is for the appropriate Government to be satisfied about the existence or apprehension of the Dispute. An order of reference or the order of the Government passed under Section 10-B of the I.D. Act is open to judicial review only if it is shown that the appropriate Government has no material before it or it has not applied its mind to the material before it or it has not taken into account certain facts which it should have taken into consideration. The formation of an opinion ought to be an honest one.
99.A dispute comes into existence as soon as it is raised on one side with the other and the same is not acceded to by the other. The said dispute continues till it is settled by means of process like settlement, adjudication etc. inasmuch as the 'existence' or 'apprehension' of an 'industrial dispute' is a condition necessary to the forming of an opinion, it must be proved atleast prima facie. Generally, after an order or reference is made, a Writ Court does not interfere and the issue of the validity of reference is left to the Tribunal to take a decision in the matter. However, if the Government has taken its decision on irrelevant considerations and no investigation into the disputed facts is involved, then in appropriate matters, a Writ Petition can be entertained against the order of reference concerned.
100.As a matter of fact, it is not necessary that the Government should state in its counter affidavit the details of facts on which it has formed its opinion and came to the conclusion that it is expedient to make the reference.
101.At this stage, we deem it appropriate to quote the decision of the Honourable Supreme Court in Secretary, Indian Tea Association V. Ajit Kumar Barat [(2000) 2 LLN 25 at page 28 (SC)], wherein the legal position relating to powers of the Government in making a reference of dispute has been summarised as follows:
"(1)The appropriate government would not be justified in making a reference under s 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or apprehended and if such a reference is made, it is desirable wherever possible, for the government to indicate the nature of dispute in the order of reference.
(2)The order of the appropriate government making a reference under s 10 of the Act is an administrative order and is not a judicial or quasi-judicial one, and the court, therefore, cannot canvass the order of reference closely to see if there was any material before the government to support its conclusion, as if it was a judicial or quasi-judicial order.
(3)An order made by the appropriate government under s 10 of the Act being an administrative order, no lis is involved as such an order is made on the subjective satisfaction of the government.
(4)If it appears from the reasons given that the appropriate government took into account any consideration irrelevant or foreign material, the court may in a given case consider the case for a writ of mandamus.
(5)It would, however, be open to a party to show that what was referred by the government was not an industrial dispute within the meaning of the Act."
102.It is to be borne in mind that Section 12 of the Industrial Disputes Act imposes a duty upon the conciliation officer to conduct conciliation proceedings in regard to the industrial dispute that exists or is apprehended. When a strike notice has been served under Section 22 of the I.D. Act, then, the conciliation proceedings must be held, compulsorily, by the conciliation officer. A perusal of Section 10(1) of the I.D. Act nowhere speaks of the 'appropriate government' to wait for the conciliation officer's report as per Section 12(4) of the Act.
103.Moreover, the second proviso to Section 10(1) of the Act enjoins on the 'appropriate government' to make a reference of an industrial dispute pertaining to a public utility service where a notice of lock-out or strike, as per Section 22 of the Act, has been served/given. Even before any other proceedings, including the conciliation proceedings, have begun, the Government is empowered to make a reference under the Act and this power is though not directly expressed, is implied, in our considered view. Consequently, the conciliation officer's report is not a condition precedent for the Government for exercising its power to make a reference as per Section 10(1) of the Act as per the decision in Raju's Cafe V. Industrial Tribunal (1951) 1 LLJ 219 (Mad)(DB). Even if the conciliation proceedings are not held as per the statutory provisions on the basis of which the failure report is sent to the Government, the same will not affect the validity of reference as per the decision in Ramakrishna Mills Ltd. V. Government of Tamil Nadu [(1984) 2 LLJ 259 at page 266 (Mad) (DB)].
104.In fact, the provisions of Section 10(1) of the I.D. Act are not controlled by the ingredients of Section 12(4) or 12(5) of the I.D. Act as per the decision in Kanti Cotton Mills Ltd. V. State of Saurashtra [AIR 1953 Sau 46 (DB)]. The 'appropriate government' is not required to take the steps concerned as envisaged under the Act for settlement of an industrial dispute. As a matter of fact, the 'appropriate government' is conferred with the discretion to select one or the other of the authorities for the purpose of investigation and settlement of industrial disputes, upon its own appraisement of the situation as per the decision of the Honourable Supreme Court in Niemla Textile Finishing Mills Ltd. V. Second Punjab Tribunal (1957) 1 LLJ 460 (SC):G.Gurumurthi V. K Ramalu (1958) 1 LLJ 20, 23 (AP).
105.The requirement for initiating action under Section 10(1) of the Act is that there ought to be some material before the appropriate Government so as to enable it to form an opinion that an industrial dispute exists or is apprehended. The opinion so to be formed already/formed is purely an administrative function of the Government. Admittedly, the discretion of the appropriate government under Section 10(1) of the Act is a wider one to refer 'industrial dispute' or 'any matter appearing to be connected with, or relevant to, the dispute', whether it relates to any matter specified in the second schedule or the third schedule to a Tribunal for adjudication. For the purposes of reference under clause (c) and (d) of the Act, it is enough if the Government thinks that the 'matter connected with or relevant to the dispute' relates to any matter specified in second or third schedule.
106.The second proviso to Section 10 of the Act enjoins the 'appropriate government' with an overriding power of making a reference whether the dispute pertains to a public utility service and a notice of strike and lock-out as per Section 22 of the Act has been given as per the decision in Jaslok Hospital and Research Centre V. B.V.Chavan [1983 Lab IC 1100] and in such a case, making of reference is of vital importance. Undoubtedly, the 'appropriate government' is the authority in regard to the question whether the notice of strike or lock-out as per Section 22 of the Act is frivolous or vexatious or whether it is inexpedient to make a reference. These are not objective facts which can be decided by a Court of Law. However, if the Government comes to a conclusion and forms an opinion which is not vitiated by mala fide or based on irrelevant or extraneous considerations, then the decision of the Government is not amenable to judicial review as per the decision in Ramachandra Abaji Pawar V. State of Bombay [AIR 19 52 Bom 293-94 (DB)]. Before forming an opinion, the 'appropriate government' should have applied its mind to the questions where there is an industrial dispute existing or apprehended and where it will be expedient to refer the dispute on the basis of material before it. If the Government has not applied its mind, then it cannot be said to have formed its opinion on these questions as per the decision in CF King Emperor V. Sibnath Banerji [72 LA 241 (PC)].
107.This Court worth recalls the decision of the Honourable Supreme Court in The Management of Monghyr Factory of I.T.C. Ltd., V. The Presiding Officer, Labour Court, Patna (Bihar) and others [1978 (2) Labour Industrial Cases 1256] wherein it is observed as follows:
"11. .... Ordinarily and generally in a large number of cases, a reference is made when the Government finds that an industrial dispute exists. There are cases where a dispute is only apprehended or even there may be some where some disputes exist and some are apprehended. To keep an order of reference free from the pale of attack on such a ground, the Government will be well advised to specify one or the other in their order of reference. The Government should clarify the position and remove the ambiguity by filing a counter when the reference order is challenged on this ground etc."
108.In the decision Shambu Nath Goyal V. Bank of Baroda, Jullundur [1978-I-LLJ-484 at page 486] it is, among other things, held thus:
"The key words in the definition of industrial dispute are "dispute" or "difference". That is the contention of these two words. In Beetham V. Trinidad Cement Ltd., All K.S. 244 at 249, Lord Denning while examining the definition of expression "Trade dispute" in S.2(1) of Trade Dispute (Arbitration and Inquiry) Ordinance of Trinidad observed:
"By definition a 'trade dispute' exists whenever a 'difference' exists and a difference can exist long before the parties became locked in a combat. It is not necessary that they should have come to blows. 'It is sufficient that they should be sperring for an opening"."
Also, in the aforesaid decision at paragraph 6, it is observed as follows:
"6.... The power conferred by S.10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under S.10(1). But in making a reference under S.10(1) the Government is doing an administrative Act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvas the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination. No doubt it will be open to a party to seeking to impugne the resulting award to show that what was referred by the Government was not on industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case or matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference had and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on those matters, (vide Madras State V. C.P.Sarthy A.I.R. 1958 S C 53) etc."
109.In Central India Machinery Manufacturing Co. Ltd., V. State of Rajasthan and others [1983 Labour Industrial Cases 108] it is held as follows:
"13. ... The power conferred on the Government by S.10(1) to refer the dispute can be exercised only when there was an existing or apprehended industrial dispute. From the material placed before it, the Government reaches an administrative decision whether there is an existing or apprehended industrial dispute. In either events it can exercise its powers under this section. But in making the order of reference, the Government is doing an administrative act and the fact that it has to form an opinion as to factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. Thus the jurisdictional facts on which the appropriate Government may act, are formation of an opinion that an industrial dispute exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act of the Government as the expression is understood in contradistinction to judicial or quasi judicial function. The adequacy or the sufficiency of the material on which the opinion is formed, is beyond the pale of judicial scrutiny. If the action of the Government in making reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the tribunal had no jurisdiction to make award. But if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the court to hold the reference back and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government, on which it could have come to an affirmative conclusion on these matters.
15.... Where the employer in its reply to the Deputy Secretary had mentioned that there was no subsisting dispute and as such it was requested not to take any further steps and thereafter the State Government passed an order making reference u/s.10 in which it was clearly mentioned that because the Conciliation Officer had submitted a failure report and the State Government, after taking into consideration the aforesaid report, was satisfied that it was a fit case for making a reference, it would be clear that there was material on record and it could not be said that the State Government took into consideration any extraneous matters and the High Court could not go into the sufficiency of the matter or propriety of such opinion, which was a subjective satisfaction of the Government."
110.In the decision Gulf Oil Corporation Ltd., Mumbai V. Union of India and others [2008 (3) LLN 785 (Bom)] at page 788 in paragraph 6 and 7 it is observed as follows:
"At the very outset we may notice that various questions of fact in relation to employer-employee relationship, dispute being covered under the provisions of the Act as well as other details can be raised safely by the petitioner before the Industrial Tribunal and shall be decided by the Tribunal in accordance with law. The limited question that we are presently concerned in the facts of this case is whether the dispute is comprehensive enough to take into its ambit the contract being sham or the appropriate Government should be directed to consider refraining of the scheduled dispute or refer a specific question. The Courts while entertaining the petition under Art.226 of the Constitution do not sit over the order of reference as if it was an appellate Tribunal. Certain amount of discretion is vested and the opinion contemplated under the industrial law has to be examined with objectivity and it is not necessary to give it a restricted meaning or go into the questions of hyper technicalities.
7.The Supreme Court in the case of S.K.Verma V. Mahesh Chandra and another [1983 (2).L.L.N. 637], while dealing with the question as to whether an industrial disputes exists or not, held as under, in Para.2 at page 639:
"There appear to be three preliminary objections which have become quite the fashion to be raised by all employers, particularly public sector corporations, whenever an industrial dispute is referred to a Tribunal for adjudication. One objection is that there is no industry, a second that there is no industrial dispute and the third that the workman is no workman. It is a pity that when the Central Government, in all solemnity, refers an industrial dispute for adjudication, a public sector corporation which is an instrumentality of the State, instead of welcoming a decision by the Tribunal on merits so as to absolve itself of any charge of being a bad employer or of victimisation, etc., should attempt to evade decision on merits by raising such objections and never thereby satisfied, carry the matter of ten times to the High Court and to the Supreme Court, wasting public time and money. We expect public sector corporations to be model employers and model litigants. We do not expect them to attempt to avoid adjudication or to indulge in luxurious litigation and drag workmen from Court to Court merely to vindicate, not justice, but some rigid technical stand taken up by them. We hope that public sector corporations will henceforth refrain from raising needless objections, fighting needless litigations and adopting needless postures."
Also, in the aforesaid decision at page 791 & 792, it is further laid down as follows:
"47. ... The Government has formed an opinion and has made a reference satisfying itself that there is an industrial dispute in existence between the parties. Of course formation of such an opinion can be examined by the Court under Art.226 of the Constitution but it certainly falls within the very limited ambit. That Court cannot sit as a Court of appeal or appellate authority to examine excess of jurisdiction of the appropriate Government. Unless and until the opinion is apparently without jurisdiction, in excess of jurisdiction or is based on no material as also inter alia do not satisfy the ingredients of S.10 of the Act, the Court would be very reluctant to interfere in such a reference. The Legislature in its wisdom has provided special forum for settlement of an industrial dispute which is expected to be expedient and any attempt to throttle such a proceedings at the threshold has to be examined with great caution. On the one hand the petitioner-company itself questioned the legality of the orders passed by the appropriate authority/forums on the complaints of the workmen in writ petitions and certain observations have come in those orders/judgments that the respondent-workmen were part and parcel of the frame work of the workmen of the petitioner-company. Even if they were employed by the contractor as alleged by the company, still the Labour Court would have to examine the contentions of the workmen that the contract is sham and a camouflage to frustrate the legitimate claim of the workmen. The Government was obviously not competent to go into these niceties of law and evidence and then write a judgment. Such an approach would be an apparent contradiction to the concept of formation of an opinion, which is to be based on prima facie material. From the history of this case, right from the talks 2002, when the company took a decision to declare closure under S.25-O of the Act and thereafter the parties have been in continuous litigation before one authority or the other forum or Court, we are really unable to appreciate the contention of the petitioner that there exists no prima facie case for reference to the Industrial Court. The parties are neither strangers to each other nor there is any conclusive findings recorded which has attained finality between the parties, answering the query whether there exists or not, relationship of employer-employee between the parties. This question itself has to be adjudicated upon though there is more than prima facie material before the appropriate Government to form an opinion for making a reference within the provisions of S.10 of the Act."
The concluding paragraphs of the above judgment clearly show that the reference made by the appropriate Government to the Industrial Court should be understood in its proper perspective and must necessarily be left to the discretion of the Industrial Court to adjudicate comprehensively the relevant factors essentially for determining the specific question formulated and referred to the said Tribunal. Certainly, the Industrial Tribunal should not be unduly influenced by academic questions of law and they should make an attempt to deal with the merits of each case according to its facts and circumstances. The duties of the Industrial Tribunal are different from determination of commercial disputes. It still remains the obligation of the Industrial Court to consider all relevant facts de hors abstract legal grounds and answer the referred questions. The questions which are ancillary or would necessary arise for proper and complete adjudication of the referred question would have to be necessarily dealt with by the Tribunal etc."
111.In the decision Power Cell Battery Karmikara Sangha (R) Maddur Unit V. Principal Secretary, Department of Labour and others [2009-I-LLJ-381 at page 383 (Karnataka)] it is held as follows:
"8.Section 12 sub-section(5) of the I.D. Act confirms the power on the State Government to refuse to refer the dispute. While refusing, the Government is required to record reasons. Section 12 sub-section (5) requires the Government to record reasons, even though the Government is discharging administrative function, it does not mean that, the Government can refuse the reference without recording the reasons. No doubt, it is not exercising quasi-judicial or judicial power, however that, does not mean it can reject the reference without even subjective satisfaction. The Government is not required to adjudicate the issue, however, it has to satisfy as regards the existence or non-existence of dispute and to consider as to whether issues should be referred or not. Even in case of administrative function as observed by the Apex Court in the matter of Sharad Kumar and Government of NCT of Delhi and Others (supra), the Apex Court has observed that, determination of the question as to whether the dispute exist or not, as to whether the claimant is a workman or not, depends on nature of various duties, principal duty in particular assigned to or discharged by the employee, not merely on the designation of the post held by him.
9.Looking into the impugned order, it clearly shows that, the Government except relying to the designation of the petitioner has not considered any other matter. No doubt, the Government has power to reject the reference if it finds that there is no industrial dispute exists or it finds that the person claimed is not a workman. To come to the said conclusion, it should form an opinion, and in order to form an opinion, it has to consider the material, though it need not adjudicate, nor it requires elaborate reasoned order but opinion should be based on sound reasoning. The decisions referred to by the senior counsel for the 3rd respondent/Management shows that, while considering the question as to whether the issue should be referred or not, the Government is required to assign satisfactory reasons for its conclusion. Even the decision in the case of Secretary, Indian Tea Association V. Ajit Kumar Barat and Others [2000-I-LLJ-809(SC)] the Apex Court has observed at Para 6 that "the Government is entitled to go into the question whether an industrial dispute exists or is apprehended and it will be only a subjective satisfaction on the basis of the material on record and being an administrative order no lis is involved." This observation of the Apex Court clearly shows that, though it is a subjective satisfaction but it must be based on material on record. Section 12(5) of the Act requires an opinion to be formed by the Government. If an opinion is required to be formed by the Government, the said opinion must be sound, based on the issues and reasons. Since the Government has not at all considered the materials placed before it, regarding the question, as to whether the petitioner is workman or not, the matter requires reconsideration etc."
112.The Conciliation Officer can deal with the conciliation matter not only when there is an 'existing' dispute but also when such dispute is 'apprehended' as per decision KH Gandi V. RNP Sinha [(1958) 1 LLJ page 83 (Pat.) (DB)]. However, wider the 'existing' or 'apprehended' dispute may be, it must be an "industrial dispute", as defined under Section 2(k) of the Industrial Disputes Act.
113.In regard to a public utility service where any industrial dispute 'exists' or 'apprehended', then, it is mandatory for the Conciliation Officer to conduct conciliation proceedings, where notice under Section 22 of the Act has been given, as held in East Asiatic & Allied Companies V. BL Shelke [(1961) I LLJ 162 (Bom) (DB)], otherwise it is only a discretionary one.
114.The first part of dimorphism of Section 12(5) of the Act refers to the power of the 'appropriate government' to make a reference, if on a consideration of the report, as per sub-section (4), the appropriate government is specified that there is a case for reference, it may make such reference. The first part of section 12(5) of the Act is to be read as part of sub-section (1) of Section 10 which enjoins the appropriate government to make a reference of the dispute. A conjoint reading of these provisions show that ordinarily the question of making a reference would arise after conciliation proceedings have been gone through and the Conciliation Officer has made a failure report, vide the decision of the Honourable Supreme Court in Western India Match Company Ltd. V. Western India Match Company Workers Union [(1970) 2 LLJ page 256 (SC)]. The Government has a vital say in the matter of permitting industrial disputes to seek adjudication by reference to industrial Tribunals, because 'it is not every case where parties alleged the existence of an industrial dispute that a reference can be made' as has been held by the Honourable Supreme Court in State of Bihar V. D.N.Ganguly [(1958) 2 LLJ 634, 638]. Keeping in mind the aim of industrial peace and cordial industrial relations between the parties, the Government has to consider the totality of the facts and circumstances of the matter in issue.
115.While exercising the power as per Section 12(5) of the Act, the appropriate government cannot traverse into the merits of an industrial dispute and if it is found that an industrial dispute has arisen, then, such industrial dispute needs to be referred for adjudication as has been held in Bombay Port Trust Employees' Union V. Union of India [(1999) 1 LLJ at page 175 (Bom)]. Whether a case for reference has been made out or not can be answered in the light of all the relevant circumstances, which would have a baring on the merits of the case as well as on the incidental question as to whether a reference should invariably be made as per decision in Kunjuraman Nair V. Secretary to Government, Labour Department [(1978) Labour Industrial Cases 1169, 1171 (Ker)]. However, the Government under the garb of considering a prima facie case for reference cannot undertake a detailed examination, investigation, appreciation of facts and principles of law as per the decision in State of Bombay V. K.P.Krishnan [(1960) 2 LLJ at page 592, 600].
116.The first part of sub-section (5) of Section 12 of the Act signifies that after forming an opinion as per Section 10(1) of the Act, the appropriate government, ordinarily, will further take into consideration the failure report for being satisfied as to whether there is a case for reference or it will be expedient to make the reference as per the decision in Bombay Union of Journalists V. State of Bombay [(1964) 1 LLJ at 351, 354-55]. In Andrew Yule Company Ltd., and its Group (Calcutta Region) Clerical staff Union V. Andrew Yule Company [1966) 1 LLJ at page 524, 529 (Calcutta) (DB)] it is held that 'whether there was an expediency or not, in the matter of making a reference is to be decided on evidence in the peculiarity of facts and circumstances of the case.'
117.In National Union of Commercial Employees V. State of Maharashtra [(1968) 2 LLJ at page 169 (Bom)] it is held that 'the Court is, therefore, not entitled to consider the probity or correctness of the reasons assigned by the Government.' Further, in the decision in Dalmianagar Mustoor Union V. State of Bihar [(1969) 1 LLJ at page 358 (Patna) (DB)] it is held that 'the Government cannot be mandamused to make an individual a party to the reference as the remedy of certain aggrieved party would be before the Industrial Tribunal.'
118.In the decision in Avon Services (production Agencies) (Private) Ltd., V. Industrial Tribunal, Haryana and others [(1978)-II-LLN-503 at page 504], the Honourable Supreme Court has observed as follows:
"Section 10(1) of the Industrial Disputes Act, 1947, confers a discretionary power and this discretionary power can be exercised on being satisfied that an industrial dispute exists or is apprehended. The jurisdictional facts on which the appropriate Government may act are the formation of an opinion that an industrial dispute exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act. The adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny."
119.In E.I.D. Parry (India) Ltd., and another V. The Presiding Officer, Industrial Tribunal, Madras and another [1992 (2) MLJ 382] this Court has inter alia held as follows:
"The contention that the introduction of Sec.10-B of the Tamil Nadu Amendment has taken away the power of the tribunal which passed an order under Sec.10(4) of the Act is not convincing. It is well established principle to interpret the provisions of a statute as harmoniously as possible so that there is no conflict of the provisions and likewise that no provision is rendered otiose. It is also well-established that the power of the Government under Sec.10(1) of the Act is purely an administrative function. While referring to a dispute under Sec.10(4) of the Act, the legislature has conferred on the Government a power to issue an order under Sec.10-B of the Act by Tamil Nadu Act XXXVI of 1982. The insertion of Sec.10(B)of the Act has not taken away the power of the tribunal under Sec.10(4) of the Act, to pass an interim order. The power under Sec.10-B is given to the Government to give an interim relief to the workers including the payment of money by the employer. Sub-secs.(2) and (3) of Sec.10-B stated that such an order shall cease to operate on the expiry of a period of six months from the date of the order or on the date of the award of the Labour Court or the tribunal as the case may be, whichever is earlier and that the money which has been paid can be adjusted. So, if the Government, while referring the dispute has passed an order under Sec.10-B of the Act giving an interim relief to the workmen, then the power under sub-sec.(4) of Sec.10 cannot be exercised by the tribunal. For instance, when the adjudication is pending before the tribunal, no interim relief can be asked for, if an order has already been passed under Sec.10-B of the Act granting some interim relief to the workmen under Sec.10-B of the Act. At the same time, if no interim relief has been given while making a reference, the sole authority to decide the dispute and as a matter incidental thereto, the tribunal has got the power before whom the proceeding is pending. So the power of the Government to pass an order under Sec.10-B of the Act has to be exercised immediately after a reference is made, it cannot be contended that the tribunal has lost its power to grant an interim relief. Apart from that a quasi-judicial power under Sec.10(4) of the Act cannot be taken away by conferring an administrative power on the Government by amendment. It is also settled law that the repeal by implication is not favourable and such interpretation is not to be adopted unless it is inevitable. The presumption is always against the principle of Repeal. Any reasonable construction which offers an escape from implied repeal must be considered inconsonance with the true intention of the legislature. So, two provisions can co-exist side by side even though one may to some extent overlap the other."
120.In The Coimbatore Pioneer Mills Ltd., Peelamedu, Coimbatore V. The Regional Director, Regional Office (Tamil Nadu) Employees State Insurance Corporation, Madras-34 [1998-3-MLJ-761] at page 763 in para 9, this Court has observed and held as follows:
"9.In E.S.I. Corporation V. E.I.D. Parry (India) Ltd., (1984) 1 LLN 159 referring to Braithwate and Company (India) Ltd. V. Employees' State Insurance Corporation, A.I.R. 1968 S.C. 413: (1968) 2 S.C.J. 658, it is stated that it was perfectly legitimate for the employees, while settling their dispute, to come to a settlement, that such payment shall not be reckoned for purpose of provident fund, bonus, gratuity, Employees' State Insurance Contributions, etc.' Paragraph 66(f) of the award passed by the Special Industrial Tribunal, the relevant portion of which is already extracted above in clear terms has stated that the interim payment made pursuant to the Government order and the accord reached before the Tribunal, shall not be recovered from the workmen or adjusted against the increase given under the award. Further such payments are written-off as ex-gratia payments. There was no valid or good reason for the respondent to ignore or for not accepting the same, when such an award was passed on the basis of the settlement arrived at by the parties. I am also unable to agree with the contention raised on behalf of the respondent that an implied contract must be read in the Government order G.O.Ms.No.1399, dated 15.7.1985, merely because no discretion was left to the petitioner in making payment pursuant to the said order and having regard to the settlement arrived at between the parties, the terms of which settlement were ultimately accepted by the Special Industrial Tribunal and became part of the award the validity of which was not assailed. Looking to the undisputed facts mentioned above and to paragraph 66(f) of the Award passed by the Special Industrial Tribunal dated 23.2.1987, it cannot be held that the interim payments made to the employees could be brought within the definition of "wages" as per Sec.2(22) of the E.S.I. Act."
121.In Telco Convoy Drivers Mazdoor Sangh and another V. State of Bihar and others [1989-II-LLN-718 at page 719] the Honourable Supreme Court has held as follows:
"It is time that in considering the question of making a reference of a dispute for industrial adjudication under S.10(1) of the Industrial Disputes Act, 1947, the appropriate Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended." The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. It is now well settled that while exercising power under S.10(1) of the Act, the function of the appropriate Government is an administrative function and not judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by S.10 of the Act. However, as has been held in Madhya Pradesh Irrigation Karamchari Sangh case [1985-I-LLN.781], there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and to allow the Government to do so would be to render Ss.10 and 12(5) of the Act nugatory. Where therefore, as in this case the question sought to be referred for adjudication by the workmen under S.10(1) of the Act was whether the convoy drivers of a company were employees or workmen of the company, that is to say, whether there was relationship of master and servant between the company and its convoy drivers and the appropriate Government refused to refer the matter for adjudication on the ground that the convoy drivers were not workmen or employees of the company it has to be held the appropriate Government had decided the dispute on its merits and, therefore, the refusal of the Government to make a reference of the dispute for industrial adjudication was not justified."
122.In Management, Essorpe Mills Ltd., V. Presiding Officer, Labour Court and others [2008-III-LLJ-614(SC)] the Honourable Supreme Court has, among other things, held that 'Section 22 of the Industrial Disputes Act pre-supposes a notice before the workmen resorted to strike. Six weeks time to be given. In this case notice given on March 14, 1991 and the proposed strike was on or after March 24, 1991. The inevitable conclusion is that notice cannot be treated to be one under Section 22. The expression "such notice" refers to 6 weeks advance notice etc.'
123.A reading of first part of the Section 20(1) of the I.D. Act, deals with the commencement of conciliation proceedings before a conciliation officer in a 'public utility service' as the date of commencement or conciliation proceedings is the date on which a notice of strike or lock-out, as per Section 22 of the Act was received by the conciliation officer. Section 22 of the Act bars strikes and lock-outs in a 'public utility service' and when a notice of strike or lock-out has been given as per Section 22 of the Act by one party to the other party, the conciliation proceedings shall not deem to have commenced on the day of such notice as per the decision in Municipal and Panchayat Employees' Union V. State of Gujaraj [(1988) 1 LLJ at page 307]. But the second part of the sub-section, by means of a friction, signifies the date on which the notice of strike or lock-out was received by the conciliation officer or the date on which the dispute has been referred to the Board, to be the date of commencement of conciliation proceedings. The term 'deem' shows that in a public utility service, even if the conciliation officer has been holding talks with the parties or has received a charter of demands from the workmen and a reply from the employer before the date of receipt of notice by him as per Section 22 of the Act, it will not amount to conciliation proceedings, as the conciliation proceedings in such a case will commence only from the date on which the notice of strike or lock-out under Section 22 of the Act has been received. A conciliation proceedings under the provisions of sub-section (2) of Section 20 of the Act ends when the report submitted by the conciliation officer, as per Section 12(6) of the Act, is received by the appropriate government.
124.The onus of proving that the strike has been resorted to in breach of the contract of employment and that particular concern is of public utility one is on the employer. However, the said proof will revolve upon the facts and circumstances of each case. In respect of a public utility service, if the workers go on strike, then, it will result in great inconvenience to public and irreparable loss and damage to the industry and also to the State. The aim of Sections 22 and 23 of the Act is to see that a serene atmosphere of peace is maintained as regards the period of conciliation proceedings before the appropriate authorities as per Section 10A of the I.D. Act in establishing the breach of contract on the part of the workmen, the necessary proof will depend upon the facts and circumstances of a given case as per the decision State of Bihar of Deodar Jha [AIR 1958 Patna page 51 (DB)]. In Chemicals and Fibers India Limited V. DB Bhoir [(1975) 2 LLJ 168 at 174], the Honourable Supreme Court has held that 'the pendency of an industrial dispute under Section 2A of the I.D. Act before a Tribunal will not be a bar to the workmen going on strike in general form.'
125.Further, Section 33 of the I.D. Act refers to the conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings. Section 36 of the I.D. Act speaks of statutory right of the parties to be represented through others and it is open to the respective parties to canvas the same before the appropriate forum.
126.In regard to the contention of the learned Senior Counsel for the appellants/Mills that the learned Single Judge ought to have held that Section 11(4) of the I.D. Act Tamil Nadu Amendment (Act 5 of 1988) will not apply for inviting the proper parties for conciliation, we point out that the powers of the conciliation officers are not wide as those of the authorities specified in sub-section (3) of Section 11 of the Act and only for the limited purpose, he is vested with the same powers as are empowered by a Civil Court as per Civil Procedure Code and therefore, there is nothing wrong in the Tamil Nadu Amendment (Act 5 of 1988) empowering the conciliation officer to enforce the attendance of any person for the purpose of examination apart from the power to inspect any document, in our considered opinion.
127.As a logical corollary, Rule 37 of the Tamil Nadu Industrial Disputes Rules, 1958 relating to service of summons or notice, is intra vires. Suffice it for this Court to make a mention that the trappings of the Civil Procedure Code is not applicable to Labour Court or a Tribunal. But, certainly, the conciliation officer or a concerned Tribunal/Labour Court can exercise the powers of the Civil Court only in respect of matters specified under Section 11 of the Act and the relevant Industrial Disputes (Central Rules), 1957 and the Tamil Nadu Industrial Disputes Rules, 1958.
128.In regard to the plea of the appellants/Mills that the Mills in W.A.No.837 of 2003 (writ petitioner in W.P.No.18243 of 2001) have entered into a settlement with the Unions/Sangams viz., R.3, R.6 and R.7 in W.P.No.18243 of 2001 and signed a settlement under Section 18(1) of the Industrial Disputes Act etc., it is open to both parties to canvas about the same before the appropriate forum under the Industrial Disputes Act.
129.In regard to the question of financial competence of a company/establishment to pay an interim relief, it is a matter which can be raised by the parties before the Industrial Tribunal and indeed, while passing an administrative, general or special order under Section 10-B of the Act, taking into account of expediency of situation, like securing the public safety or convenience or the maintenance of public order or supplies and services, essential to the life of the community or for maintaining employment or industrial peace in the establishment concerning with which reference has been made, the State Government is well within its powers to pass an order concerning interim relief or lumpsum payment as the case may be and at the time of forming a prima facie opinion, the State Government, while discharging its sovereign function, is not required to take into account the nuances or niceties of legal issues, evidence etc. Certainly, the amount of interim relief or lumpsum payment ordered by the Government, in its reference in G.O.(D).No.690, Labour and Employment Department, dated 13.09.2001, can very well be adjusted in the award to be passed by the Industrial Tribunal in the manner known to law.
130. Whether the 10-B order passed by the Government applies to the units which have no spindles as mentioned in the annexure to the order, is a matter to be gone into by the Industrial Tribunal and it is open to the respective parties to agitate over the merits of the matter in this regard before the concerned forum.
131.Merely because the State Government has passed G.O.(D).No.690, Labour and Employment Department, dated 13.09.2001 under Section 10-B of the I.D. Act which may give rise to penal consequences as per Section 29-A of the I.D. Act and that the Government ought not to have passed the order without adhering to the principles of natural justice, by hearing the appellants/Mills/Managements, it is to be borne in mind that the interim relief or lumpsum payment are not "wages" as per Section 2(22) of the Employees State Insurance Act and the Government has inherent powers to order for the payment of interim relief or lumpsum payment, taking note of the emergency situation to smoothen the industrial fire and to maintain peace and at the time of passing a 10-B order [which is valid only for 6 months], the Government need not provide opportunities to the appellants/Mills/Managements to hear them and in fact, 29-A of the I.D. Act may be resorted to by the concerned, unless it is inevitable.
132.Inasmuch as while passing an administrative order, there is no lis involved between the parties and the Government while performing such an administrative function, is not expected to delve into the merits of the matter and take up the aspect of determination of the lis which will certainly be outside the power of the Government conferred on it as per Section 10 of the Industrial Disputes Act.
133.In short, the reference made by the State Government under G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 and G.O.(D).No.690, Labour and Employment Department, dated 13.09.2001 are to be appreciated in a proper perspective and it is prudent that the Industrial Tribunal is left with the statutory obligation to adjudicate completely and comprehensively all the relevant facts effectively and efficaciously for resolving the controversies/disputes/questions formulated and referred to it. It is open to the Industrial Tribunal to go into the ancillary questions that may arise for proper and effective adjudication of the referred issues.
134.When the Government forms an opinion to make an order of reference under Section 10(1) read with 10(5) of the I.D. Act, in the instant case, G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 (relating to the charter of demands of the workmen employed in textile mills in Tamil Nadu) and without specifying which establishment comes within the ambit of Section 10(1) and which establishment is brought within the purview of Section 10(5) of the Act, it is to be pointed out that it is not material for the Government to specify the category of establishment which comes under Section 10(1) and the establishment which comes under Section 10(5) of the Act and the absence of the same will not in any manner, vitiate the order of reference since the High Court under Article 226 of the Constitution of India is not sitting over the order of reference as an Appellate Authority. The order under Section 10(1) and under Section 10(5) of the Act is an administrative order and one cannot forget the words 'any other establishment, group or class of establishments of a similar nature is likely to be interested in, or affected by such dispute' in Section 10(5) of the Act are of wider ramifications. It cannot be interpreted so as to rope in the establishments in which a dispute cannot be raised on account of subsisting settlements or otherwise,in our considered opinion. Sub-section 10(5) of the Act applies to the establishment other than the one or ones who are parties to the industrial dispute in respect of which a reference has been made under Section 10(1)(d) of the Act, as per the decisions in Kanji Jadhavji and Company V. Transport and Dok Workers Union [1969) 2 LLJ at page 123, 126-127 (Bom)(DB)] and Management of Company Limited V. Government of Tamil Nadu [1989 1 LLJ at page 180, 205 (Madras)(DB)].
135.Therefore, we are of the considered view that the view taken by the learned Single Judge in para 25 of the common order in W.P.No.18242 of 2001 and etc. batch dated 30.09.2002 to the limited extent that '... Even though such a composite reference can be made without specifying which establishment comes under Section 10(1) and which establishment is brought within the arena of the dispute merely because of Section 10(5)' is per se correct. However, we are not in agreement with the view taken by the learned Single Judge in paragraph 25 to the observation made that '..,an order under Section 10-B cannot be made applicable to all the establishments unless it is specified which establishment is coming under Section 10(1) of the Act' because of the simple fact that the 10-B order of the Government is a special or general order [inserted by Act 36 of 1982 with effect from 15.08.1982] and since the order of the Government is only an administrative order and the same being not a judicial or quasi-judicial function in this regard viz., which establishment/Mill is coming under the arena of dispute under Section 10(1) or under Section 10(5) of the Act can very well be looked into by the Tribunal under the Industrial Disputes Act and determined by it and therefore, the abstract legal plea taken in this regard pale into insignificance. It cannot be lost sight of that the Tribunal has the power to grant the interim relief. More so, the quasi-judicial power, under Section 10(4) of the Act, cannot be taken away by means of conferment of an administrative power on the Government. The power of the Government to pass an order under Section 10-B of the Act has to be exercised instantaneously after a reference is made under Section 10(1) read with 10(5) of the Act.
136.As far as the present case is concerned, it cannot be gainsaid that the Government has taken a deliberate decision to make a composite reference under Section 10(1) read with Section 10(5) of the Act after being conscious of the fact that in respect of many of the establishments, there was neither any dispute nor apprehension of any dispute etc. and therefore, the contra view taken by the learned Single Judge, in para 26 of the common order dated 30.09.2002 is not correct, in our considered opinion.
137.On the other hand, we are of the considered view that the view taken by the Government to make a reference under Section 10(1) read with Section 10(5) of the Act, viz., G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 is an honest and bona fide one and there is no arbitrariness or capriciousness involved in it. Also one cannot impute lack of bona fides on the part of the Government in referring the disputes for adjudication by the Tribunal.
138.We are satisfied that there are enough materials before the Government when it has formed its opinion administratively to make a reference to the Industrial Tribunal to determine the dispute referred for adjudication. It is to be noted that formation of an opinion as to whether an industrial dispute exists or apprehended is not the same thing as to adjudicate the dispute on merits.
139.On a careful consideration of respective contentions and in the light of qualitative and quantitative discussions mentioned supra, we are of the considered view that, in the instant case on hand, the Government has formed an honest and bona fide opinion that an Industrial Dispute has existed or apprehended between the parties before making a valid reference as per G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 and further, it has passed a 10-B general or special order as per G.O.(D).No.690, Labour and Employment Department, dated 13.09.2001 by directing the payment of interim relief and lumpsum payment, pending adjudication of certain demands raised by the workmen to be decided by the Industrial Tribunal, after taking note of all the relevant and attendant facts and circumstances of the case in a cumulative fashion and in fact, the Government has applied its mind in the manner expected by law and has formed a prima facie opinion to make a reference to the Tribunal. Certainly, the Government is vested with its discretion to refer the industrial dispute to the appropriate forum and also the Government is well within its discretion not to take into consideration the nuances and niceties of law and evidence while passing such an administrative order and also that the interim relief or lumpsum payment so ordered by the Government is to be adjusted as per Section 10(3) of the I.D Act in the manner known to law. Therefore, we hold that both the orders in G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 and G.O.(D).No.690, Labour and Employment Department, dated 13.09.2001 of the Government are perfectly legal and valid in law and there are no material irregularities and patent illegalities in it, so as to cause our interference.
140.In the Result,
(a) The Writ Appeals filed by the Appellants (Unions/Sangams and the Government), challenging the order of the learned Single Judge in allowing the writ petitions so far as it pertains to G.O.Ms.No.690, dated 13.09.2001 [in regard to the interim relief and lumpsum payment], are allowed. Consequently, the order of the learned Single Judge dated 30.09.2002, in allowing the writ petitions calling in question G.O.(D).No.690, dated 13.09.2001, so far as they relate to the direction regarding interim relief and payment, is set aside by this Court.
(b) The Writ Appeals filed by the Appellants (Managements/Mills), challenging the order of the learned Single Judge in dismissing the writ petitions so far as it pertains to G.O.(D).No.688, Labour and Employment Department, dated 13.09.2001 (concerning certain charter of demands raised by workmen), are dismissed. Consequently, the order of the learned Single Judge dated 30.09.2002 passed in the writ petitions challenging G.O.(D).No.688, dated 13.09.2001 is confirmed.
The parties are directed to bear their own costs. Consequently, all the Miscellaneous Petitions are closed.
Sgl To
1.The Secretary, State of Tamil Nadu Labour & Employment Fort St. George, Chennai 9.
2.The Commissioner of Labour DMS Compound, Teynampet, Chennai 6.
3.The Presiding Officer, Industrial Tribunal,Chennai 104.
4.The Secretary Kovai Jilla Mill Thozhilar Sangam (AITUC), Coimbatore 9.
5.The Vice President Kovai-Erode Mavatta Drivada Panchalai Thozhilalar Matrum Nirvaka Oozhiar Munnertra Sangam, Coimbatore.
6.The General Secretary Kovai Kizhaku Mavatta Mill Thozhilalar Sangam (CITU), Tirupur