P. C. JAIN, J. - (1.) SINCE common question of law is involved in all the above mentioned writ petitions, they are being disposed of by a common order.
(2.) THE petitioner of D. B. Civil Writ Petition No. 895/88 is a unit of Shree Bijay Cotton Mills, Bijay Nagar, petitioner of D. B. Civil Writ Petition No. 896/88 is a unit of Mahalaxmi Mills Beawar, petitioner of D. B. Civil Writ Petition No. 897/88 is a unit of adward Mills, Beawar and petitioner of D. B. Civil Writ Petition No. 898/88 is a unit of Udaipur Cotton Mills Udaipur. THE petitioner is & subsidiary Corporation of the National Textiles Corporation Ltd. , New Delhi (for short 'ntc hereinafter) is a company incorporated under the Companies Act. THE petitioner's various units named above were the companies in the private sector and since they were in liquidation the management of their units were taken over by the Central Government under the Provision of the Sick Textile (Taking over of Management) Act, 1972 in the year 1972 and subsequently, the mills were nationalised in the year 1974 under the provisions of the Sick Textile undertakings (Nationalisation) Act, 1974 and their owner-ship was transferred to NTC. Ltd. , under Section 3 of the said Act. THE NTC Ltd. formed 9 subsidiary corporations under section 6 of the said Act and the petitioner is one of the nine subsidiary corporations which is controlling and managing the aforesaid mills. THE said mills remained a relief undertaking from 1972 prior to their nationalisation. It is stated in the petition that even though the mills referred to above were nationalised in the year 1974, they continued to incur losses continuously since then. It is further stated that the petitioners are paying wages to the workmen of the mills in accordance with the recommendations of the Second Central Wage Board for Textile industries. In the year 1981. the various trade unions of workmen of Textile industries in Rajasthan, submitted a Charter of demands on the Textile Mills of Rajasthan. THE said Charter of Demands was also sent to the unit of the petitioner which was not a member of the Rajasthan Textile Mills Association. It has been further pleaded by the petitioners that a settlement was reached between the Unions and the Rajasthan Textile Mills Association on 29th July, 1982 under which, inter alia, it was agreed that an ad-hoc increase of Rs. 35/- per month shall be given to the workmen of Textile Mills who were members of the Rajasthan Textile Mills Association. THE petitioner also entered into a settlement on 25th September, 1982 on the lines of the settlement dated 29th July, 1982 mentioned above. Since no settlement was made in regard to the demand for increase in wages, the Labour Commissioner Rajasthan called the representatives of workmen as well as Textile Mills for negotiations and conciliation sometimes in 1984 but nothing came out of the proceedings, consequently the Conciliation Officer submitted the failure report to the State Government on 6th September, 1984. From the failure report it appears that the issues raised on behalf of the Textile Mills included the question of financial incapability to give further increase in wages as well as the question of determining work loads. On the basis of the failure report, the State Government set up a Court of Enquiry and referred the disputes and matters to the Court of Enquiry for recommendation vide order dated 2nd April, 1985. After referring the disputes and matters to the Court of Enquiry as stated above the State Government vide notification dated 5th April, 1985 issued directions under section 10-K of the Industrial Disputes Act (as applicable to State of Rajasthan) whereby it was directed that the ad-hoc increase of Rs. 35/- will continue till such time the Court of Enquiry gives its report and the said amount would be absorbed against the demand of wages, increased DA , annual increment and H. R. A. as may be determined and settled on the basis of the report of the Court of Enquiry. THE Court of Enquiry gave its report on 15 7. 1986. After the receipt of the report of the Court of Enquiry, the State Government in exercise of its powers under Section 10-K of the Industrial Disputes Act, 1947 issued an order dated 16th February, 1987 with reference to the demand Charter of December, 1981 raised by 5 Central Organisations of trade unions of workmen of Textile Industries in Rajasthan. THE relevant directions made in the order are as under: - (a) THE employees of all textile mills in Rajasthan State pay a sum of Rs. 57 50 to each of their workmen per month by way of increase in wages with effect from 1. 1. 1987. (b) THE said increase will not be given to the workmen of Textile Mills which are managed by the National Textile Corporation, and those textile Mills which are declared as a relief under takings or are lying closed. (c) That the aforesaid increase will be given during the operation of the order. (d) THE demand for wage increase shall be deemed to be settled. (e) THE order shall remain in operation for 2 years". The case of the petitioners is that from the relevant directions contained in order dated 16th February, 1987, it is clear that the said directions are not applicable to the workmen of Textile Mills which are managed by NTC and other Sick Mills similarly situated. The contention of the petitioner is that the fact that the State Government did not apply the directions in the aforesaid order to the Mills managed by NTC Ltd. is by itself sufficient to infer that the Government was convinced on the material available including the record of the enquiry that it was proper not to apply with the directions contained in the order, to Textile Mills Managed by NTC Ltd. and similarly situated Sick Mills. It appears that subsequent to the order dated 16th February, 1987 the State Government vide notification dated 29th July, 1987 referred two matters for adjudication to the Industrial Tribunal Jaipur pertaining to the petitioner Mills which were managed by National Textiles Corporation (Delhi Punjab and Rajasthan) Ltd. , New Delhi. These two matters pertain to the question whether the workmen employed in four textile mills are entitled to any increase in their wages and if so, from which date as also the question of the determination of the work loads. It also appears that after the said reference was made for adjudication certain Unions had written a letter to the Labour Minister, Government of Rajasthan demanding that each worker of four mills managed by the National Textiles Corporation Ltd. , be given an increase of Rs. 57. 50 per month in his wages with effect from 1. 1. 1987 by way of an interim increment as according to the unions, the question referred to the Industrial Tribunal is not likely to be decided even within a period of 5 years. It further appears that the State Government acting exercise of the powers under section 10 K of the Industrial Disputes Act, 1947 issued the impugned order dated 17th March, 1988 directing the four textiles mills managed by NTC Ltd. , to pay a sum of Rs. 57. 50 to each of their workers with effect from 1. 1. 1987 to be adjust ed in accordance with the award of the Industrial Tribunal before whom the reference is pending. The petitioner has challenged the order dated 17th March 1988 on the ground that the order issued under section 10-K is without jurisdiction as the State Government does not have any power to pass such an order under the said Section in relation to any dispute which has already been referred for adjudication to the Industrial Tribunal. The petitions were admitted on 18th April, 1988 and the Court on the stay petition directed that in the mean while the operation of the order dated 17th March, 1988 passed by the State Government with regard to the payments of interim relief shall remain stayed Respondent No 4 has moved an application for vacation of the stay order on the ground that the order of the State Government was justified and if the stay order is allowed to be continued an irreparable loss will be caused to the workmen. Since short question of law was involved in this case, at the request of the parties arguments were heard on the main petition on 13th July, 1988 We have heard Shri C. N. Sharma learned counsel for the petitioner and Shri P. K. Sharma learned counsel for the respondent No. 4, Shri B. L. Samdariya for the respondent No. 7 and Shri K. S. Rathore learned Addl. G. A. The main question to be decided in these cases is whether after a reference is made for adjudication to the Industrial Tribunal, the State Government has jurisdiction to pass an order during the pendency of adjudication relating to the subject matter of reference, under Section 10-K of the Industrial Disputes Act, 1947 i. e. whether the Slate Government had jurisdiction to grant interim increase of Rs. 57. 50p in wages vide impugned order dated 17th March, 1988, when the question of increase in wages was already pending adjudication before the Industrial Tribunal vide notification dated 29th July, 1987.
(3.) THERE is no dispute between the parties that the reference had been made by the State Government under Section 10 (1) of the Industrial Disputes Act, 1947 read with clause (4) thereto vide notification dated 29th July, 1987 to the Industrial Tribunal for adjudication. One of the disputes referred was in relation to the entitlement of the workmen of four National Textile Mills for increase in wages including the question of such entitlement. THERE is no dispute between the parties that order under Section 10-K of the Industrial Disputes Act, 1947 was passed subsequent to the order of reference on 17th March, 1988 i. e. after a lapse of 7 months. In order to appreciate the rival contentions made by the learned counsel for the parties, it would be better if we reproduce Section 10-K of the Industrial Disputes Act, 1947 as applicable to the State of Rajasthan as under:- 10-K " (1) Notwithstanding anything contained in the Act, if in the opinion of the State Government it is necessary or expedient so 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 maintaining industrial peace, it may be a general or special order, make provision - (a) for requiring employers, workmen or both to observe for such period as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order; and (b) for prohibiting, subject to the provision of the order, strikes or lock-outs generally or a strike or lock-out in connection with any industrial dispute. (2) In case any industrial dispute is raised in respect of any provisions in the order of the State Government made under sub-section (1) within a period of three months of the order, it shall be referred by the State Government for adjudication to an Industrial Tribunal and the order shall lapse when the award of the Tribunal becomes enforceable; Provided, however, that the reference of the industrial dispute to adjudication shall not have the effect of staying the operation of the order. " Section 10-K of the Industrial Disputes Act, 1947 was inserted w. e. f. 26. 2. 70 by the Industrial Disputes (Rajasthan Amendment) Act, 1970 (Act No. 14 of 1970 with the object to give certain powers to the Government in extraordinary circumstances 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 maintaining Industrial peace. In case the State Government is satisfied that an acute emergency exists which necessitates the exercise of powers under Section 10-K of the Act to maintain essential services for the life of community and for the purpose of maintaining public order or maintaining industrial peace it is invested with the powers to issue general or special order giving direction for requiring the employers, workmen or both to observe for such period as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order. Sub-section (2) of Section 10-K is very relevant for determining the controversy raised in this case. It provides that in case an Industrial Dispute is raised in respect of any provisions in the order of the State Government made under sub-section (1) of Section 10-K of the Act within a period of 3 months of the order, the dispute is to be referred by the State Government for adjudication to an Industrial Tribunal and the order shall lapse when the award of the Tribunal becomes enforceable. Section 10-K thus provides two conditions for making a reference. First condition is that an industrial dispute is required to be raised in respect of any provisions the order of the State Government made under sub-section (1) of Section 10-K and second condition is that such a dispute is to be raised within a period of 3 months of the order Sub-Section (2) of Section 10 K is couched in a language which is imperative and mandatory. Under sub-section (2) of Section 10-K of the Act the State Government is left with no other discretion but to refer the Industrial Dispute to an Industrial Tribunal for adjudication provided the contingencies stated above are fulfilled Thus whereas under Section 10-K the State Government has been empowered to issue a special order or general order but at the same time a Check has been provided in sub-section (2) of Section 10 that incase an industrial dispute is raised in respect of any provision in the order of the State Government made under sub-section (I), it shall be referred by the State Government for adjudication. A bare reading of Section 10 (1) of the Industrial Disputes Act. 1947 read with sub-section (4; provides that once an industrial dispute is referred for adjudication to the industrial tribunal the said Tribunal acquires jurisdiction to adjudicate upon the points referred to it and also the matters incidental thereto In the instant case there is no dispute that one of the matters referred for adjudication was in relation to entitlement of workmen of the four NTC Textile. Mills for increase in wages including the question of the date of such entitlement The State Government under section 10-K had directed the petitioners to pay a sum of Rs. 57. 50 to each workman with effect from 1st January, 1987 to be adjusted in accordance with the award of the industrial tribunal. Thus it can be said that what has been directed to be paid to the workmen in pursuance of the impugned order dated 17th March, 1988 is nothing but it is in the nature of interim relief pending adjudication of the demand with regard to payment of wages. Thus the question is whether after referring the matter for adjudication to the Tribunal can the Government pass an order under section 10-K of the Act. ;