SARJOO PROSAD, C. J. - (1.) THIS is an application under Art. 226 of the Constitution in which the petitioner Jaipur Spinning & Weaving Mills Ltd. , has prayed for a writ of mandamus against the respondents directing that a reference of an industrial dispute made on 19th April, 1958 to the Industrial Tribunal, Rajasthan, was void and inoperative and as such the respondents should be prevented from taking any action thereon.
(2.) THE petitioner is a public limited company running spinning mills at Jaipur and employing about a thousand workers. In the said mill originally the practice was that single sides were being worked in the Ring Frame Department by the siders or labourers who worked in those sides. Similarly, eight deliveries were being attended to by a Tenter in the Drawing Frame Department. THEse were the piece rates of working in the Mill. On 24th March, 1958 as a result of negotiations between the management of the Mills on one hand and the workers represented by the Secretary of the Jaipur Spinning and Weaving Mills Mazdoor Union on the other. It is alleged by the petitioner, that an agreement was arrived at between the parties which was to the effect that the siders in the Ring Frame Department of the mills would attend to double sides, i. e. double the number of spindles heretofore attended to by them. It meant in other words that the siders, who attended to 200 spindles, were to attend to 400 spindles and those who attended to 220 spindles were to attend to 440. In lieu thereof, the siders in the Ring Frame Department, who attended to double sides, were to be paid a sum of Rs. 80/- p. m. inclusive of the Dearness Allowance, which was in excess of the wage that they were hitherto drawing for the original piece-works. It was also agreed that the siders attending to more than 400 spindles should be paid an extra allowance computed at Rs. 12/- per 20 spindles over and above the basic figures of 400 spindles. This agreement is annexe 'a' to the petition. It is stated by the petitioner that the settlement was signed on behalf of the management by Shri S. G. Seksaria, Manager of the Mills and by Shri Hiren Mukerji, General Secretary of the Mazdoor Union on behalf of the workers and was jointly presented to the Conciliation Officer, who verified the same. On the terms of the agreement, the settlement came into force with effect from the first shift of 25th March, 1958 and was to remain in force for a period of 5 years after which it could be terminated by either side on six months' notice. On 27th March, 1958 there followed another settlement between the management on the one hand and the workers represented by the Secretary of the Mazdoor Union on the other, as alleged by the petitioner. According to the terms of this agreement, the Tenters attending to Drawing Frames in the Drawing Frame Department of the Mill were to attend to 16 Deliveries, i. e. double the number of deliveries heretofore attended to by them; and a Tenter attending to Drawing Frame as per the terms of the fresh settlement was to be paid at 21 pies per hank, inclusive of Dearness Allowance of Rs. 30/- p. m. This settlement was also to come into force with effect from the first shift of the day following i. e. 28th March, 1958 and was to remain in force for a minimum period of two years, where-after either party could terminate the agreement on giving two months' notice. This settlement again appears to have been signed by Shri Seksaria, Manager, on behalf of the Mill, and Shri Hiren Mukerji, the Secretary of the Mazdoor Union, 011 behalf of the workers. This was also verified before the Labour Officer, Ajmer Division and is annexure 'b' to the petition. It is the case of the petitioner that these settlements came into operation and things continued to run smoothly under the terms of the agreement until 4th April, 1958, when it appears that differences arose between the parties and the workers in the Ring Frame Department refused to attend to the piece work as stipulated in the agreements in question. The workers refused to work in accordance with the terms of the new settlements, while the management resisted their attempt to revert to conditions of work which prevailed in the Mills prior to these settlements. As a result of this dispute, conciliation proceedings were started by the Conciliation Officer, but with no success and, on 12th April, 1958, the State Government made a reference for adjudication to the Industrial Tribunal, Rajasthan, Jaipur, of the dispute that had arisen between the workmen and the management of the Mills. The main terms of the reference have been given in annexure 'c' to the petition. The Government notification recites that in exercise of the powers conferred by sub sec. 5 of sec. 12 read with clause (d) of sub-sec. 1 of sec. 10 of the Industrial Disputes Act, 1947 (Act No. XIV of 1947) the State Government made the reference on the following points as indicated herein: (1) The management of the Jaipur Spinning and Weaving Mills Ltd. , Jaipur, have introduced the working of double siding in the Ring Frame Department of their Mills with the help of single siders and have provided one reliever on each six siders and want to run this on 10s and 12s counts, which they are using for spinning purposes in their Mills. Whether working the single siders on double sides of the Ring Frame in the Mills on 10 counts is justified If not, what process should be adopted for running the 10 counts? (2) Is the giving of one helper (reliever) on each six siders working on the double side of the Ring Frame justified? If not, how many helpers should be provided on each six siders to run the double sides of the Ring Frame Department? (3) Whether the agreement dated 24. 3. 58 between the management and Labour representatives of Jaipur Spinning and Weaving Mills Ltd. was entered into after taking into consideration the possible factors of providing helpers and running the mills on definite count? (4) To what relief the workmen who stopped work on 3rd and 4th of April, 1958 are entitled? (5) To what relief are the workmen who were laid off by the Management from 5th April 1958, are entitled?" Further in pursuance of sub-sec. (3) of sec. 10 of the said Act, the State Government also prohibited the continuance of any strike or lockout in connection with the aforesaid dispute. Shortly thereafter, i. e. on 19th April, 1951 the Government of Rajasthan issued another notification. It is this notification which is impugned before this court. The terms or the notification are material for the purpose of deciding the points raised in this application. It will be, therefore, convenient to reproduce the terms at this stage: - (1) The management of the Jaipur Spinning and Weaving Mills Ltd,, Jaipur, have introduced the working of double siding in the Ring Frame Department of their Mills with the help of single siders and have provided one reliever on each six siders and want to run this on 10s and 12s counts, which they are using for spinning purposes in their mills. Whether the working of single sider on double sides of the Ring Frame in the mills on 10s and 12s counts is justified? If not, what process should be adopted for running the 10s counts? (2) Is the giving of one helper (reliever) on each six siders working on the double sides of the Ring Frame justified? If not, howmany helpers should be provided on each six siders to run the double sides of the Ring Frame Department? (3) Whether the agreement dated the 24th March, 1958 between the management and Labour representatives of the Jaipur Spinning and Weaving Mills Ltd. was entered into after taking into consideration the possible factors of providing helpers and running the mill on definite counts? (4) To what relief the workmen who refused to work double sides in Ring Frame and double machine as in Drawing Frames on 3rd & 4th April, 1958, are entitled? (5) Whether the refusal to give work to the workers by the management, from 5th April, 1958 onwards on the apprehension that the siders and tenters will not work the double sides, was justified and, if not, are the workers entitled to any relief? (6) Is the running of one man per two heads in Drawing Frame Department on specified dounts justified? If so, what should be the number of helpers thereupon? The learned counsel for the petitioner contends that the Government having once made a reference under sec. 10 of the Act, had no jurisdiction to supersede that reference and to make a fresh reference on 19th April, 1958. The reference, according to the learned counsel, is illegal and void and no action can be taken on the same, the earlier reference having already been revoked. It is further contended that there is no existing industrial dispute between the parties in respect of which a reference could he made; all that was necessary was to enforce the settlements already arrived at between the parties. It is, therefore, argued that the action taken by the Government in issuing such notifications is wholly void and unwarranted in law; the notifications should be accordingly quashed and the authorities should be prevented from taking any action on the strength of those notifications. U/sec. 10 of the Industrial Disputes Act where the Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with it, or relevant to the dispute, to the Tribunal for adjudication. At the same time, it may under sub-sec. (3) of that section prohibit the continuance of any strike or lock-out in connection with such disputes, which may be in existence on the date of the reference, and under sub-sec. (4) when making a reference, the Government can specify the points for adjudication by the Labour Tribunal to which the Tribunal has to confine its adjudication and matters incidental thereto. The contention of the learned counsel is, that once these matters of dispute have been referred to the Industrial Tribunal, it was no longer open to the Government to supersede that reference and to make a fresh reference, as it purports to have done in the present case by a notification issued on 19th April, 1958. It is conceded that it is open to the Government to issue a fresh notification referring certain other matters in relation to the dispute for the adjudication of the Tribunal or even to amend some of the matters which have been referred to for adjudication; but the notification in the present case, the learned counsel submits, purports to supersede in express terms the earlier notification which under the law was not permissible. Reliance has been placed by the learned counsel on the decision of the Supreme Court in State of Bihar Vs. O. N. Ganguly and others and Messrs. Bata Shoe Co. Ltd. . and others (1), where it was held that the Industrial Disputes Act does not expressly confer any power on the appropriate government to cancel or supersede a reference made under Sec. 10 (1) of the Act; nor can such power be claimed by implication on the strength of Sec. 21 of the General Clauses Act. The rule of construction enunciated by sec. 21 of the General Clauses Act in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of Sec. 10 (1) of the Industrial Disputes Act. The learned counsel for the respondent, both on behalf of the State as also on behalf of the workers, has submitted that the reference in the present case should not be taken to be illegal; and although on the terms of the reference words have been used indicating that the previous reference was superseded, yet in substance there has been no real supersession of the previous reference and all that has happened is that the previous reference has been further supplemented and amplified. The subsequent notification is more or less in the nature of an amendment to the previous notification making the reference which the Government was competent to issue on the authority of the law. It is also pointed out that this notification of 19th April, 1958 followed almost immediately in the wake of the previous notification issued on 12th April, 1958, when practically no action was taken by the Industrial Tribunal ; and it could not be argued that by taking such an action the Government had sought to nullify any action taken by the Tribunal under the provisions of the Industrial Disputes Act, when in fact, nothing had been done by the Tribunal till then. They also seek to distinguish the decision of the Supreme Court on those lines. Having examined the above contentions we feel satisfied that the subsequent notification is not in substance a notification superseding the previous reference, but only amplifies or supplements the same. It would appear on a comparison of the points in dispute, which have been referred to in the two notifications, that the first four points are almost literally identical or substantially so. The fifth point in the first notification refers merely to relief in general which is also covered by the 4th point in the second notification ; while the 5th and 6th points are supplementary points relating to the same dispute between the labourers and arise out of the alleged agreement of 27th March, 1958. Therefore, what the Government purported to have done by virtue of this notification is merely to amend and supplement the previous notification. Thereby they have done nothing to contravene or violate any of the provisions of the Industrial Disputes Act. If under the law it was open to the Government to issue a fresh notification amending the points in dispute in the previous case or supplementing certain points for the decision of the Tribunal, we are unable to hold that the procedure followed in the present instance was in violation of the law or unwarranted by the Jaw The decision of the Supreme Court is really distinguishable. There the facts ware entirely different. In that case the facts that on 8. 10. 1954 the Government of Bihar referred an industrial dispute between the management of the Bata Shoe Company Ltd. , and their 31. Workmen in question was justified ; and, if not, whether they we entitled to reinstatement or any other relief. Then on 15. 1. 1955 a similar industrial dispute between the Bata Company and it's 29 other workmen was referred by the Government to the same Tribunal. These two references, which had been consolidated by the Tribunal, were pending before it and had made some progress. On 30. 5. 1955 the Workmen's Union made an application before the Tribunal alleging that the majority of the workmen were opposed to the reinstatement of those sixty workmen and consequently they prayed to be added as a party to the proceedings before the Tribuna1. There was also a separate application made by two other workmen to be joined in the proceedings. All these applications were rejected by to the Tribunal. After all these steps had been taken under the law, on 17. 9. 1955 the Government of Bihar issued a third notification. By this notification the Government purported to supersede the two earlier notifications, it combined the said two disputes into one dispute, impleaded the two sets of workmen involved in the said disputes and also added the Bata Mazdoor Union as a party to the disputes and then made a fresh reference for the adjudication of the tribunal on those grounds. On receipt of this notification, the tribunal passed an order cancelling the hearing of the two previous references which had been fixed for 3. 10. 1955, and directed that the files of the said references should be closed. The effect of superseding the previous references was to render nugatory all those steps which the tribunal in seisin of the references had already taken under the law and was fully competent to take. In those circumstances, it was held that the supersession of the previous references was illegal and ultra vires. The Supreme Court observed - "the condition precedent for the reference to the industrial tribunal is that the appropriate government must be satisfied that an industrial dispute exists or is apprehended. It is not in every case where the parites allege the existence of an industrial dispute that a reference would be made under sec. 10 (1); it is only where the test of subjective satisfaction of the appropriate government is satisdied that the reference can be made. Thus it is clear that the appropriate govt. is given an important voice in the matter of permitting industrial disputes to seek adjudication by reference to the industrial tribbunal. But once an order in writing is made by the appropriate government referring an industrial dispute to the tribunal for adjudication under Sec. 10 (1) proceedings before the tribunal are deemed to have commenced and they are deemed to have concluded on the day on which the award made by the tribunal becomes enforceable under Sec. 17a. This is the effect of sec. 20 (3) of the Act. This provision shows that after the dipute is referred to the tribunal, during the continuance of the reference proceedings, it is the tribunal which is seized of the dispute and which can exercise jurisdiction in respect of it. The appropriate government can act in respect of a reference pending adjudication before a tribunal only under sec. 19 (5) of the Act, which authorises it to add other parties to the pending dispute subject to the conditions mentioned in the said provision. It would therefore be reasonable to hold that except for cases falling under sec. 10 (5) the appropriate government stands outside the reference proceedings, which are under the control and jurisdiction of the tribunal itself. " (P. 1021, P. 10) The Supreme Court held further that the power claimed to cancel a reference under sec. 10 (1) was inconsistent with the other provisions of the Act. It is important to notice that in the Supreme Court case the previous references had been completely obliterated or wiped out ; the second reference was merely a reproduction of the first two consolidated in one, without any amendment or addition to the terms. Here obviously new terms have been added. It is also significant that the Supreme Court appears to have approved of the decision by Raja-mannar C. J. and Venkatarama Aiyyar J. , as he then was, in South India Estate Labour Relations Organisation Vs. State of Madras (2 ). In that case the Madras Government had purported to amend the reference made by it under sec. 10 of the Act and the validity of this amendment was challenged before the court. This objection was repelled on the ground that it is open to the Government to make an independent reference concerning any matter not covered by the previous reference. That it took the form of an amendment to the existing reference and not an additional reference was a mere technicality which did not merit any interference. The objection is one of form and not of substance. Here also the same principles apply. It is conceded by the learned counsel for the petitioner that on the other two points, namely Nos. 5 and 6, which occur in the second notification, it was open to the State Government to make a fresh reference to the Industrial Tribunal ; and if that purpose could be achieved by making an independent reference, we see no reason why the same purpose could not be validly served by making this reference on 19th April, 1958 in which some of the points, which formed part of the earlier reference, have also been included. The mere fact that the word 'supersede' has been used should not effect the validity of the reference so long as none of the provisions of the law has been violated in the procedure adopted. One has to look to the substance of the matter and not merely to the form. In N. N. Chakravarty Vs. State of Assam (3), the learned Chief Justice, who delivered the judgment, has distinguished the decision of the Supreme Court on analogous grounds. He held that in the case in question there was clearly a revocation of the earlier references and naturally this was not permissible under the law. In the Assam case certain matters of dispute had been substituted for the earlier ones. It was held that the State Government was entitled to issue a fresh notification including the fresh issues and referring the same to the same Tribunal ; and although the second notification purported to substitute new points for adjudication, yet, according to the learned Judges, in substance it clarified or added to the points of reference in the previous notification and the notification did not amount to supersession or cancellation of the jurisdiction of the Tribunal under the earlier notification.
(3.) IN our opinion, what has to be seen actually is whether by the second reference the Government have violated any of the provisions of the INdustrial Disputes Act or sought to nullify them. If not, then the mere fact that shortly after the issue of the first notification they have issued another notification supplementing some of the points in dispute would not make the reference invalid. We must, however, point out that before hastening to make a reference, the points involved in the dispute must be carefully considered and stated in the reference, instead of making patch work by supplementary notifications to the utter inconvenience of all concerned. We do not therefore, feel satisfied that any ground has been made out for accepting this writ application, which is accordingly rejected. .;