Karnataka High Court
Kanoria Industries Ltd. vs State Of Karnataka on 29 February, 1996
Equivalent citations: ILR1996KAR1558, 1996(7)KARLJ638, (1997)ILLJ95KANT
JUDGMENT
1. The petitioner challenges the validity of Annexure-K order passed by the Government. The facts in this case are as follows :
The petitioner is a Cement Factory, employing more than 450 workers. There are two units. On certain alleged misconduct committed by the 4th respondent, he was proceeded against, which resulted in the workers launching a strike. The dispute regarding the disciplinary action taken against the 4th respondent is pending adjudication before the Labour Court evidenced by Annexure-J. At this stage the Government has passed Annexure-K order calling upon the Management to pay 75 per cent of wages to the workers. This order has been issued in exercise of the power under Section 10(B) of the I.D. Act. The challenge against the said order is essentially on the allegation that this order has been passed without hearing the petitioner. The management contends that before the issuance of Annexure-K order, the petitioner ought to have been heard and only after bearing it an order could have been passed. According to the Management the order has civil consequence and, therefore, whenever an order having civil consequence is to be passed it is essential that the persons affected by the said order should be heard. To sustain the challenge the petitioner relies on certain authorities of the Supreme Court as also of this Court.
2. The learned High Court Government Advocate has appeared to defend the Annexure-K order. According to the Learned Government Advocate who appeared, it is conceded that this order was passed without hearing the Management. But according to him, as the order has no civil consequences it is not necessary. According to him, it is only a consequential order issued on the basis of the reference of a dispute to the Labour Court. He submits that when the conciliation failed, the Management had notice as to what has to follow. It should he deemed to have been put to notice of the fact that there is likelihood of a Reference being made to the Labour Court and that the Government is armed with the power under Section 10(B) of the I.D. Act and is entitled to issue appropriate order. Therefore, according to, him, no notice need be given to the petitioner Management before any order is issued under Section 10(B).
3. The worker is represented by Mr. Narasimhan. He also contended that there is no need to be heard in the matter, but he was not prepared to as contend that the order impugned has no civil consequence . According to him, even if the order has any Civil consequence, nevertheless if the Government has taken in to account all relevant considerations and has passed the order, then it is not liable to be interfered solely for the reason that the affected person was not heard. According to him, it being in the nature of an interim order pending the Reference of the dispute to the adjudicatory authority, there is no necessity for giving a hearing to the affected persons before such an order is passed.
I have heard Mr. Gururajan at length on this issue. Section 10(B) of the I.D. Act reads as follows :
"10(B).Power to issue order regarding terms and conditions of service pending settlement of dispute (1) where an industrial dispute has been referred by the State Government to a Labour Court or a Tribunal under sub-Section (1) of Section 10 and if in the opinion of the State Government it is necessary or expedient to do 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 for maintaining employment or industrial peace in the establishment concerning which such reference has been made, it may, by general or special order, make provision :
(a) for requiring the employer or workman or both to observe such terms and conditions of employment as may be specified in the order or as may be determined in accordance with the order, including payment of money by the employer to any person who is or has been a workman;
(b) for requiring any public utility service not to close or remain closed and to work or continue to work on such terms and conditions as may be specified in the order, and
(c) for any incidental or supplementary matter which appears to it to be necessary or expedient for the purpose of the order :
Provided that no order made under this sub-section shall require any employer to observe terms and conditions of employment less favourable to the workman than those which were applicable to them at any time within three months immediately preceding the date of the order.
Explanation :- for the purpose of this subsection. "publicity utility service" means.
(i) any section of an industrial establishment on the working of which the safety of the establishment or the workmen employed i therein depends;
(ii) any industry which supplies power, light or water to the public;
(iii) any industry which has been declared by the State Government to be a public utility service for the purpose of this Act.
2. An order made under sub-section (1) 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.
(3) Any money paid by an employer to any person in pursuance of an order under subsection (1), may be deducted by that employer from out of any monetary benefit to which such person becomes entitled under the provisions of any award passed by the Labour Court or the Tribunal, as the case may be."
If the circumstances mentioned in Section 10(B) exist, the Government is entitled to pass an order contemplated therein. The question then would be to ascertain whether the circumstances mentioned in the enabling section exist or not. For this, according to Sri Gururajan, it is necessary that the person affected to be beard in the matter and contribute his view. Mr. Gururajan cited before me the Decisions reported in I.L.R. 1983 KAR 539, and 66 FJR 38 to the effect that whenever an order of civil consequence is issued, the party affected by the said order has to be heard. What exactly is the connotation of the expression civil consequence occurring in Section 10-B ? It is not a case of a new right or liability that is being created and saddled on the party by virtue of the order. It is a case where the Government is exercising its power under Section 10(1) and making a Reference and simultaneously passing the order. It is in the nature of an interim order. This is clear from the circumstance that the order is to be in force for a period of six months. It is a case where the Government has been satisfied on the materials placed that all the grounds mentioned in Section 10-B exist to invoke the said power. In coming to that conclusion as to whether the grounds mentioned in Section 10-B exist or not, it is not necessary for the Government to hear the management. That an industrial dispute has been referred is an admitted fact. Then the considerations to be taken into account by the Government while passing the order under Section 10(B) are, that it is necessary or expedient to do so for securing 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 which such Reference has been made, then the Government may pass appropriate order including payment of money by the employer. This order has to be part on the Government forming an opinion in this behalf. This formation of the opinion is basing on its subjective satisfaction and not by means of a detailed and protracted enquiry. If this is to be conceded in such a process, then the very object of the purpose to be achieved by the order under Section 10-B will be lost. As regards ascertaining as to whether there exist some action to be taken for public safety, nobody can claim that he be beard in the matter. It is the prerogative of the Government. Further what are expedient things to be done by the Sovereign to secure public safety, convenience or maintenance are all within the domain of the Government to decide. No party can lead evidence on the same to point out what acts are necessary to be done to secure public safety. It is the pure discretion of the Government to decide as to how it should act. This is sovereign function of the Government and it is not lis to be decided by the Government. The Government has certain sovereign duties. These are the matters which are referred to in Section 10-B. In exercising such sovereign powers, there is no question of any person being beard in the matter. In this case, it is not as if the Government has quantified the amount payable. It is not as if the Government assess as to what is the particular amount that is found due and that has to be paid. But what the Government has done is that it decides as to whether in the interest of public safety, public peace or continuing the maintenance of law and order situation the particular order be issued. These functions, as stated earlier, are absolutely within the powers of the Government. In such an exercise of the sovereign powers, it is not necessary for the Government to hear any person because the sovereign duty is not to be influenced by the views of any party who claims to be the beneficiary or affected party. This is not because the order has any civil consequence or that it affects the rights of any person, but it is only the exercise of the inherent power that is vested in it as the Government.
4. That apart, it is to be remembered that the power under Section 10-B is to be exercised to meet an emergent situation. If in such an emergent situation the Government has to follow the paraphernalia or hearing the parties and coming to conclusion, the touch of emergency itself will be lost. Emergent situation calls for an emergent action. If an emergent action is taken, it is to be taken, immediately and without any delay. If a notice is expected to be issued and bearing is to be conducted and thereafter a decision is taken, then it will not be efficient enough to meet an emergency. Therefore, as contended by the respondent's Counsel Mr. Narasimhan that in a case of an emergency, there is no necessity for the Government to hear any person before it passes an order. The wordings of Section 10-B itself indicates that it excludes the operation of Rule of audi alteram partem. Therefore, the order passed by the Government, Annexure-K, does not suffer from any infirmities calling for any interference. Besides, it is to be remembered that the order will be in force only for six months. Thereafter, as and when final award is to be passed, whatever amount is paid by the petitioner would be given credit to and appropriate orders would be passed adjusting the same as well. Thus there can be prejudice to the petitioner as well.
5. As stated earlier, it is in the nature of an interim order being passed by the Government. The Government by an order has referred the dispute for adjudication of the Tribunal and by way of interim relief, it passes an order invoking Section 10-B of the Act in a given circumstance. This is all the more the reason why it is not necessary for the Government to hear the parties before such an order is being passed. I do not find any merits in this petition. It is accordingly dismissed.