1. By this petition moved under Art 226 of the Constitution of India the petitioner challenges an order of the Central Government issued on 19-4-1961 making a reference to the Industrial Tribunal, Bombay. A dispute between 23 maganese mine-owners in the States of Maharashtra and Madhya Pradesh on the one hand and their workmen on the other hand was referred to the Industrial Tribunal under the powers conferred on the Central Government by Clause (d) of sub-section (1) of section 10 of the Industrial Disputes Act, 1947. It is not disputed that though reference was made as far back as in 1961 there has been no progress with the reference although neither the Industrial Tribunal nor the parties concerned were restrained by any court order from proceedings with the reference. After a lapse of almost 10 years specially when no steps have been taken by any of the parties to proceed with the reference, it cannot be denied that the reference is wholly infructous. All the same that no such reference could be made in the circumstances leading to the issue of the notification dated 19-4-1961 is a matter which is still agitated by the petitioner.
2. The petitioner is a company registered under Section 26 of the Indian Companies Act, 1956 and represents various maganese mine owners of the country, including 20 mine owners in the States of Maharashtra and Madhya Pradesh who have been mentioned as the employers in the impugned notification. These mine owners are members of the petitioner-company. Its objects, and cordial relations between its member mine owners and their employees by negotiations etc as also to take necessary legal proceedings on behalf of its members to protect their interests.
3. The petitioner contends that on behalf of its member mine-owners particularly the 20 mine owners whose interests the petitioner seeks to represent in the present writ petition, it entered into separate identical agreements on various dates in November 1957 on behalf of its members with four trade unions including the trade union mentioned in the impugned notification to settle long standing disputes between the individual mine owners and their employees in respect of rates of wages, bonus etc. This agreement was implemented for about two years but, it is alleged on account of deterioration in the manganese industry and manganese mine owners could not continue to pay the agreed bonus. Accordingly the said agreements were terminated with effect from 30-11-1959 by notices issued to the four trade unions. A fresh notice was thereafter given under Section 9-A of the Industrial Disputes Act on 4-11-1959 and a second agreement was arrived at between the petitioner as representing the mine owners and the trade union. The second agreement was given retrospective effect from December, 1959 and was entered into only by the Rashtriya Manganese Khadan Prantik Kamgar Sangh one of the trade unions out of the original four trade unions because the other trade unions did not even come forward for negotiations. It is alleged that the trade union which signed the agreement represented the majority of the employees in the industry. This second agreement provided for constitution of a joing consultative committee consisting of the representatives of the Mineral Industry Association as representatives of the said trade union to settle by discussion all disputes that may arise between the employers and the workmen and further provided that the decision of the joint consultative committee would be binding on both parties. It was also mutually agreed that the question about payment of bonus will be mutually discussed by the parties among themselves from time to time depending upon the conditions of the manganese industry. In a meeting of the joint consultative committee held on or about 14-6-1960 and some correspondence that ensued thereafter between the petitioner and the trade union it was agreed that the question about the payment of bonus in terms of the second agreement be referred to the arbitration of one Shri. G. S. Ahiuwalia, the then Regional Labour Commissioner (Central) Calcutta who had even on earlier occasions taken keen interest in the negotiations between the parties and was supposed to have intimate knowledge of the conditions of this industry. Accordingly a letter dated 22-8-1960 was addressed by the petitioner to the Hon'ble Ministry in the Ministry of Labour and Employment of the Government of India requesting that the services of Shri. Ahulawalia be made available to act as arbitrator . This request was accepted to. Thereafter consent of Shri. Ahulwalia was also obtained to act as an arbitrator. On 14-10-1960 an arbitration agreement as required by Section 19-A of the Industrial Disputes Act 1947 duly signed by the petitioner on behalf of the employers concerned and the Rashtriya Manganese Khadan Prantik Kamgar Sanga, on behalf of the employees was forwarded to the Central Government. By its letter of 2-11-1960 the Central Government pointed out certain discrepancies in the arbitration agreement sent to it which were as follows:-
'(a) The designation of Shri. G.S. Ahluwalia had been given as Labour Commissioner (Central) Calcutta. He is now Deputy Chairman, Dock Labour Board, Calcutta.
(b) Under heading (specific matters in dispute). Cl (ii) - details of the parties, there should be the following addition after the word `Maharashtra:-
'and their workmen as represented by Rashtriya Manganese Khandan Pratik Kamagar Sangh' (c) The agreement has been signed on behalf of the employers by the Chairman Mineral Industry Association only. It should in addition be signed either by the Managing Agents or by the Manager or the Secretary of the twenty Manganese Mines covered by the agreement'.
The petitioner re-submitted the arbitration agreement along with its letter of November 10, 1960 after removing the defects mentioned as discrepancies (a) and (b) above but regarding the third discrepancy it wrote to the Central Government as under:-
'As regards your request to get the Arbitration Agreement signed by the Managers or Secretaries of all the 20 manganese mines covered by the Agreement, I am to state that I have obtained separate letters of consent from the Mangers/Secretaries of the proprietors of all the 20 mine owners covered by the Agreement and in view of this, it is not at all necessary to get Arbitration Agreement signed again by the Mangers or the Secretaries of the respective mine-owners covered by the Agreement in question. Further, I feel reasonably sure, that the purpose for which you would like the Arbitration Agreement to be signed by them as well, in addition to the Chairman of our Association is served by obtaining such separate consent letters. In case you desire, I consent letters to you true copies of the consent letters for your reference and record'.
Nothing further was heard by the petitioner and all of a sudden the impugned notification dated 19-4-1961 was published referring the dispute to the Industrial Tribunal, Bombay. It may be mentioned that the dispute referred to the Industrial Tribunal under the impugned notification was in identical terms as was sought to be referred to Shri. G.S. Ahluwalia as sole arbitrator under the agreement dated 14-10-1960 Surprised and aggrieved at the action of the Central Government the petitioner filed the present writ petition.
4. Mr. O.C. Mathur, the learned counsel for the petitioner has urged that the reference made by the Central Government must be quashed on the following grounds:-
1. Once an agreement had been reached between the parties namely, the petitioner as representing the employers and respondent NO. 2 as representing the employees and the arbitration agreement had been submitted to the Central Government had no option but to publish the said agreement and could not override the wishes of the parties by making a reference to the Industrial Tribunal.
2. Once an agreement entered into between the parties had been forwarded to the Central Government, it had to merely perform a ministerial or procedural act of publishing it. Any defect in the form in which the arbitration agreement had been submitted could be rectified but it could not be said that there was no valid arbitration agreement.
3. Once the parties have entered into an arbitration agreement the Central Government has no power to invoke the provisions of Section 10 of the Industrial Disputes Act.
4. The Industrial Disputes Act being a statute which provides for settlement of disputes between employers and employees, once the parties were agreed that there should be arbitration, the dispute sought to be referred ceases to exist as a dispute within the meaning of Section 10 of the Industrial Disputes Act so as to attract that provisions of the statute.
5. Sections 10 and 10-A of the Industrial Disputes Act has to be harmoniously construed and the only possible interpretation is that once there is an arbitration agreement as envisaged by Section 10-A, S. 10 has no application.
6. In any case the reference made under Section 10 by the Central Government has been made without any application of mind inasmuch as the arbitration agreement are re-submitted was before the Central Government and ignoring it even if there was some formal defect in it, would amount to male fide and arbitrary action.
7. Since employees and employers of more than one State were involved there could not be a reference to an Industrial Tribunal but the reference could only be to a National Tribunal.
8. If the provisions of Section 7-B read with Section 10 of the Industrial Disputes Act are not construed to be mandatory requiring reference to a National Tribunal especially where employers of more than one state are involved. Art 14 of the Constitution of India would be attracted inasmuch as it enables the Government to pick and chose case where reference has to be made to Industrial Tribunal or to National Tribunal.
5. The Central Government has contested the petition and had urged that inasmuch as the arbitration agreement filed by the petitioner was not signed by each and every employee there was no valid arbitration agreement and so the provisions of Section 10-A were not attracted and the Government was perfectly within its rights to make the impugned reference under Sec 10 of the Industrial Disputes Act. It has also been contended that whereas the first arbitration agreement was signed on behalf of the 23 manganese mine-owners the second arbitration agreement dated 14-10-1960 had been signed by the petitioner only on behalf of 20 mine-owners which left three mine-owners out of the picture. Since the dispute regarding the entire industry had to be settled a reference was made under Section 10 of the Industrial Disputes Act. It is also placed that the condition laid down in Rules 7 and 8 of the Industrial Disputes (Central) Rules, 1957 had not been complied with and so the arbitration agreement had to be ignored. The contention of the petitioner that reference should have been made to a National Tribunal has also been disputed.
6. The view that I am going to take in the matter makes it unnecessary for me to deal with all the contentions raised on behalf of the petitioner and the Central Government. Suffice it to say that the impugned notification and the reference made by the Central Government has to be struck down on the short ground that the arbitration agreement dated 14-10-1960 was a valid reference and the Central Government was precluded from invoking the provisions precluded from involving the provisions of Section 10 of the Industrial Disputes Act and was bound to publish the agreement within the meaning of Section 10-A of the Industrial Disputes Act.
7. Section 10-A of the Industrial Disputes Act at the relevant time read as under:-
'10-A (1) Where any industrial dispute exists r is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may at any time before the dispute has been referred under 'Section 10-A Labour Court or Tribunal or National Tribunal by a written agreement refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court of Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified to the arbitration agreement.
(2) An arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.
(3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer that the appropriate Government shall, within 14 days from the date of the receipt of such copy, publish the same in the official Gazette.
(4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators as the case may be.
(5) Nothing in the Arbitration Act, 1940 shall apply to arbitrations under this section'
8. On a reading of the above section it is clear that an employer and the workmen can agree to refer their disputes to arbitration any time before a reference is made under Section 10 of the Act and that an agreement has to be in writing in such form as may be prescribed and has to be signed by the parties to the agreement in the manner prescribed. If that is done the Government is under an obligation to publish the agreement and the dispute is to be adjudicated upon by the named arbitrator instead of a Tribunal or a National Tribunal or a Labour Court. The form and manner of execution of such an agreement is set out in the Rules framed under the Act known as Industrial Disputes (Central) Rules, 1957. The only rules which are relevant in this behalf are Rules 7 and 8 given in Part Ii of these Rules. These read as under:
'7. Arbitration agreement - An arbitration agreement for the reference of an industrial dispute to an arbitrator or arbitrators shall be made in Form C and shall be delivered personally on forwarded by registered post (to the Secretary to the Government of India in the Ministry of Labour (in triplicate) (f), the Chief Labour Commissioner (Central), New Delhi, and the Regional Labour Commissioner (Central) and the Conciliation Officer (Central) concerned. The agreement shall be accompanied by the consent, in writing of the arbitrator or arbitrators.
8. Attestation of the arbitration agreement - The arbitration agreement shall be signed:-
(a) in the case of an employer, by the employer himself, or when the employer is an incorporated Company or other body corporate by the agent, manager, or other principal officer of the Corporation.
(b) in the case of the workmen, by any officer of a trade union of the workmen or by five representatives of the workmen duly authorised of the workmen in this behalf at a meeting of the workmen held for the purpose.
9. The main ground on which the Central Government claims to have ignored the arbitration agreement dated 14-10-1960 submitted to it is to be found in its counter-affidavit though this reason was never communicated to the petitioners. The reason given is that the arbitration agreement was singed by the petitioner-company on behalf of the employers, which was contrary to Rule 8 inasmuch as the employers had not signed the agreement themselves. To my mind the contention is wholly untenable. Apart from the fact that throughout this dispute the petitioner company was representing all the employers who were its members, the agreement even in terms of R.8 could be signed in the case of an employer who was either an incorporated company or other body corporate by an agent of such employer. Even in the case of such employers who were not bodies corporate or incorporated companies the law of the land recognises an attorney or a duly constituted agent to sign on behalf of the employer. This had obviously been done inasmuch as all the employers who represented by the petitioner-company were members of the petitioner-company and inasmuch as the petitioner-company was acting for its members it must be held to be the agent of the members or at least the duly constituted attorney of the members. It will be pertinent to note that when the first arbitration agreement was returned by the Central Government with the remarks already extracted above and the second agreement was returned by the Central Government with the remarks already extracted above and the petitioner it had been pointed out to the Central Government that if the Central Government required further proof of the locus standi of the petitioner to sign on behalf of the employers, the petitioner would forward true copies of the consent letters it had in its possession from its various member mine-owners agreeing to the reference to arbitration as was sought to be done by the agreement dated 14-10-1960. The Central Government never replied to this letter and so the petitioner and its members could legitimately presume that their representation about the locus standi of the petitioner to act on behalf of its members was acceptable to the Central Government. In these circumstances impugned Notification dated 19-4-1961, it naturally hit the petitioner and its member-employers etc. Their protest contained in letter dated 26-4-1961 addressed to the then Hon'ble Minister for Labour and Employment also seems to have gone unheeded.
10. I thus hold that the petitioner and its members have done all that was necessary under Section 10-A of the Industrial Disputes Act and the Government on receiving it was bound to publish the agreement and did not act within its jurisdiction in ignoring the arbitration agreement and making a reference by publishing the impugned Notification . It was held in Engineering Mazdoor Sabha v. Hind Cycles Ltd. : (1962)IILLJ760SC ;
'............. Unless cases falling under Section 10(1) where in the absence of an agreement between the parties it is in the descretion of the appropriate Government to refer or not to refer any industrial dispute for adjudication under Section 10(2). If there is an agreement between the parties the appropriate Government had to refer the appropriate Government has to refer the dispute for adjudication. But the significant fact is that the reference has to be made by the appropriate Government and not by the parties, whereas under Section 10-A the reference is by the parties to the arbitrator named by them and it is after the parties have named the arbitrator and entered into a written agreement in that behalf that the appropriate Government steps into assist the further proceedings before the named arbitrator'.
11. A Bench of the Madhya Pradesh High Court in Modern Stores (Cigarettes) v. Kirshnandas Shah. : AIR1970MP16 , held that the requirements of S. 10-A(3) are partly mandatory and party directory. On true construction of the section, it is clear that although the first condition as regards the publication of an agreement in the official gazette is obligatory, i.e,. a sine qua non, the other requirement, namely, of its notification within one month from its receipt is only directory and not imperative.'
12. Apart from the general law being applicable even 'Section 36 of the Industrial Disputes Act makes it clear as to who can represent parties to an industrial dispute. Sub-section (1) of S. 36 lays down who can represent an employee. Sub-section (2) of S. 36 lays down that an employer who is a party to a dispute shall be entitled to be represented in any proceedings under the Act by an officer of an association of employers of which he is a member or an officer of a federation of association of employers to which the association referred to earlier is affiliated or where the employer is not a member of any association of employers by an officer of any association of employers connected with or by any other employer engaged in the industry in which the employer is engaged and authorised in such manner as may be prescribed. It is not in dispute that in the present case all the employers were members of the petitioner company and so could be represented by an officer of this company which was nothing more than an association of employers in terms of the objects of the petitioner-company as well as its Memorandum and Articles of Association.
13. The result is that the reference made by the Central Government by the impugned notification dated 19-4-1961 is quashed and a writ is issued restraining the respondent Government from taking any action under or in pursuance of the impugned reference or to give any effect to the said reference or publish any award that may be passed by any Tribunal acting by virtue of or on the basis of the reference made by it. As the dispute is almost ten years old and it cannot be disputed that conditions obtaining in 1960 could be obtaining today, so on, direction can be issued to the Central Government to publish the agreement that was submitted to it on 14-10-1960. The parties are free to take such further steps in the matter as they may be advised in case a dispute is still substituting. The petitioner will also be entitled to their costs.
14. Appeal dismissed.