- (1.) The appellants in this appeal are the Ahmedabad Mill-owners' Association, of which all the cotton mills in Ahmedabad local area are members, including the second appellant, the Nagri Mills Ltd. The third respondent, the Textile Labour Association, Bhadra, Ahmedabad, (hereinafter referred to as "the Union") represents the workman employed in various mills which are members of the first appellant Association. Under Standing Orders settled under the Bombay Industrial Relations Act, 1946 (Bombay Act XI of 1947) (hereinafter referred to as "the Act"), conditions of service, including those relating to leave, were prescribed in view of Clause 6 of Scheduled I of the Act. These Standing Orders were settled at a time when this clause 6 of the First Schedule to the Act read as follows: "Conditions, Procedures and Authority to grant leave". Subsequently, Schedule I was amended so as to read as: "Procedure and Authority to grant leave" , and simultaneously, clause 11 was added in Schedule II which read as: "All matters pertaining to leave and holidays other than those specified in items 6 and 7 in Schedule I." Consequent to this amendment in the Schedules, matters pertaining to leave could, thereafter, no longer be prescribed by Standing Orders, which were confined to matters contained in Schedule I only.
(2.) By a letter dated 21st April, 1961, the Union gave notice to the first appellant, desiring that changes be made as specified in the Annexure to this letter. These changes sought in the Annexure related to grant of privilege leave, sick leave, casual leave, and pay in lieu of privilege leave to all workers employed in the local textile industry in the same manner in which, under the earlier Standing Orders, the clerical and some other staff were granted these benefits. This notice was given by the Union under S. 42 (2) of the Act. The dispute was not amicably settled, and consequently, the matter was referred for conciliation. The conciliation proceedings also failed, and, thereupon, the Conciliator, on 23 rd June, 1961, issued a certificate that he had come to the conclusion from the discussions which the parties had before him that the dispute was not capable of being settled by conciliation. Thereupon, by the letter dated 29th July, 1961, the Union referred the dispute to the Industrial Court under S. 73-A of the Act. Before the Industrial Court, various pleas were taken on behalf of the appellants and some of these pleas were the subject-matter of preliminary issues which were decided before the Industrial Court could proceed to give the final Award. Though a number of such preliminary issues were decided by Industrial Court, we are only concerned with two such issues, as they were the only two matters pressed before us on behalf of the appellants in this appeal. One issue raised was that S. 73A of the Act was ultra vires Article 14 of the Constitution as it granted a right to the Union to make a reference to the Industrial Court, while no such right was granted to the employers. The second point urged was that the Act did not apply to the cotton Mills which were members of the first appellant Association, because it had not been made applicable to them under S.2(4) of the Act, while it could not become applicable to them under S. 2(3) of the Act, because the Bombay Industrial Disputes Act, 1938, was not in force in these industries immediately before the commencement of the Act. Both these points were decided by the Industrial Court against the appellants. Consequently, the appellants moved a petition under Articles 226 and 227 of the Constitution in the High Court of Gujarat. The High Court rejected these preliminary pleas raised on behalf of the appellants and upheld the view of the Industrial Court that the reference was competent. The appellants have now come up to this Court under certificate granted by the High Court against this order of the High Court.
(3.) As we have mentioned earlier, the appellants had raised a number of pleas which were the subject-matter of preliminary issues before the Industrial Court and several of them were the subject-matter of the petition before the High Court also. In this Court however, reliance has been placed only on the two pleas, mentioned above. The first plea is based on the language of S. 73A of the Act which, on the face of it, grants the right to a Union only to make a reference of an industrial dispute for arbitration to the Industrial Court and does not grant any such right to an employer. It was however urged on behalf of the respondents that, in fact this section was introduced in the Act for the very purpose of placing the employers and the Union on terns equality, and that, instead of creating any discrimination between them, this section, on the contrary was necessary to satisfy the requirements of Art. 14 of the Constitution.;