- (1.) These two appeals raise the question of the maintainability of an application made by the Employers' Association of Northern India, Kanpur, on behalf of the J. K. Cotton Spinning and Weaving Mills Co. Ltd., a member of the Association in connection with the proposed termination of service of certain members of its Watch and Ward Staff. But before we come to the consideration of this question it is necessary to indicate in brief the long and tortuous path this matter has travelled before coming to us. The application of the Employer's Association purported to be under clause 5(a) of the Government order dated March 10, 1948, as amended by a later order of May 15, 1948. This order was issued by the Governor of the United Provinces in exercise of the powers conferred on him by cls. (b), (c), (d) and (g) of section 3 and by S. 8 of the U. P. Industrial Disputes Act, 1947. The application after stating that a number of thefts of Dhoties had taken place in the Mill further stated that it was obvious to the management of the J. K. Cotton Spinning and Weaving Mills Co. Ltd., that this state of affairs could not exist and continue if Watch and Ward Staff were carrying out their duties vigilantly, correctly and honestly. It stated further that the management having lost confidence in the honestly of the Watch and Ward Staff had decided of terminate the services of all the persons of the Watch and Ward Staff and to recruit fresh men from the employment exchange and that in lieu of notice of termination of service the management would pay to these persons 12 days' wages in accordance with Standing Order No. 17A. The prayer made in the application was that "the Board be pleased to record the award entitling the J. K. Cotton Spinning and Weaving Mills Co. Ltd. to terminate the services of all the members of the Watch and Ward Staff whose names appear in Anexure A". During the pendency of the application before the Board the applicant withdrew its prayer as regards 5 of the workmen. As regards the remaining workmen, after rejecting the preliminary objection raised on their behalf that the Board had no jurisdiction to entertain the application, the Board held that "it would not be in the interests of either party or in the interest of industry to allow the remaining 27 sepoys to continue in the employment of the Mills" and the Board accordingly made the award permitting the appellants to terminate the services of these 27 sepoys after giving them compensation at the rates set out by it - starting with 15 days' full wages and compensation for those with one year of service with additional amount of compensation on a graduated scale for longer periods of service. Against this order both the parties appealed to the Industrial Court. That court agreed with the Board's conclusion on the question of jurisdiction but pointed out that the "procedure adopted by the employers' association was defective inasmuch as the mills did not apply to the Regional Conciliation Officer to discharge the sepoys in question." On merits the court held that the evidence justified the conclusion of he Board that the management had lost confidence in the members of the Watch and Ward Staff and that having regard to the Standing Orders their services should be terminated in accordance with the Standing Orders. It accordingly directed in modification of the order made by the Board "that the services of the 27 sepoys in question be terminated in accordance with the Standing Orders and that they would not be paid extra compensation as directed by the Board." The workmen then appealed to the Labour Appellate Tribunal of India. The appellate tribunal held relying on an earlier decision of its own in Kanpur Mill Mazdoor Union v. Employers' Association of Northern India, 1952-1 Lab LJ 195 (LATI-Cal) that the application under cl. 5(a) of the Government Order was not maintainable. Accordingly it allowed the appeal and set aside the award of the Board as well as the Industrial Court.
(2.) J. K. Cotton Spinning and Weaving Mills., Co. Ltd. thereupon filed an application under Art. 226 of the Constitution to the High Court of Judicature at Allahabad praying for a writ in the nature of certiorari calling for the records of the case from the Labour Appellate Tribunal of India and quashing the order of the Tribunal which has been mentioned above. Mr. Justice Chaturvedi, before whom this application came up for hearing held that the application under cl. 5(a) was maintainable and the Appellate Tribunal had erred in holding otherwise. Being however of opinion that there had been undue delay in making this application for a writ, he dismissed the petition on that ground. In the Letters Patent appeal preferred by the company against this decision a preliminary objection was raised on behalf of the Union representing the workmen that the Allahabad High Court could not call for the records and quash the order of the Labour Appellate Tribunal of India as those records were in Calcutta and consequently beyond the reach of he Court. The learned Judges, who head the appeal upheld this objection and dismissed the appeal. They however issued a certificate under Art. 132(1) and Art. 133(1) (c) of the Constitution. Thereafter the company also obtained special leave from this Court to appeal directly against the order of the Labour Appellate Tribunal of India. These two appeals preferred - one on the certificate granted by the High Court and the other on the strength of the special leave granted by this Court, have been heard together.
(3.) The main controversy, as already indicated, is on the question of the maintainability of the application under cl. 5(a) of the Government order. This order issued by the Governor of the United Provinces in exercise of the powers conferred on him by the U. P. Industrial Disputes Act, 1947, contains detailed provisions as regards the settlement of industrial disputes : The first clause provides for the constitution of Conciliation Boards consisting of three members. Clause 2 provides for the appointment of conciliation officers for specified areas. Clause 5 contains the important provisions as to commencement of proceedings before the Boards. It provides tow ways of starting these proceedings : one mentioned in cl. (b) is by an order made in writing by the Provincial Government for enquiring into a matter in respect of which an industrial dispute has arisen or is likely to arise. The other method is by means of an application by an employee or recognised association of employers or registered trade union of workers or where there is no such registered trade union the representatives not more than five in number duly elected by a majority of the workmen in the industry. Any of these may by an application in writing move the Board to inquire into an industrial dispute. This provision is in cl. 5(a) which may be set out in full :- "5(a). Any employee or recognised association of employers or registered trade union of workmen or, where no registered trade union of workmen exists in any particular concern or industry, the representatives not more than five in number of the workmen in such concern or industry duly elected in this behalf by a majority of the workmen, in such concern or industry as the case may be, at a meeting held for the purpose may by application in writing move the Board to enquire into any industrial dispute. The application shall clearly state the industrial dispute or disputes which are to be the subject of such inquiry." Clause 10 provides for the constitution of industrial courts for specified areas. Clause 12 provides for appeals to this Court against the awards made by the Board. The other clauses up to clauses 22 deal with the powers and procedure of Board or the Industrial Court and with the duties of employers to permit certain meetings to be held. Then comes cl. 23 which is in these words :- "Save with the written permission of the Regional Conciliation Officer or the Additional Regional Conciliation Officer concerned, irrespective of the fact whether an inquiry is pending before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal is pending before the Industrial Court, no employer, his agent or manager, shall during the continuance of an inquiry or appeal, discharge or dismiss any workman." Section 24 provides that every order made or direction issued under the provisions of this Government order shall be final and conclusive. Clause 26 provides for penalties for contravention or an attempt to contravene any of the provisions of he order.;