Bombay Gumasta Union Vs. M.R. Bhope, Member, Industrial Tribunal and ors. - Court Judgment

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labour and industrial - correction - sections 10, 10 (1), 10 (5), 17a and 20 (3) of industrial disputes act, 1947 and article 226 of constitution of india - petition under article 226 takes exception to order of tribunal upholding preliminary objection of employer that reference made by government under section 10 (1) (d) is not competent law and disposing the said reference as not maintainable - in view of objection petitioner wrote letter to government while making reference that concerned official had mistakenly used title - government issued corrigendum whereby names of thirteen respondents came to be incorporated - all that was done by government was simply to correct mistake - no substitution was there - court directed tribunal to decide the same expeditiously. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - cama, learned counsel for the respondents, on the other hand, argues that the corrigendum in effect amounts to withdrawal of the first reference and, therefore, it is bad in law and beyond the competence of the state government. 8. the supreme court held that it was well settled that section 21 of the general clauses act embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant provisions of the said statute. ' 9. the supreme court then held that the relevant provisions would clearly show that the scheme of the act was inconsistent with any power of the government to cancel a reference which had already been made and which was pending before the tribunal. 2 to 14. it is well settled that a reference made by a state government under section 10(1) of the act can be amended either by way of addition or modification so long as the amendment has not the effect of withdrawing or superseding the reference already made.1. this writ petition under article 226 takes exception to the order dated march 23, 1992 passed by the industrial tribunal, bombay, upholding the preliminary objection of the employer that reference (it) no. 44 of 1988 made by government of maharashtra under section 10(1)(d) of the industrial disputes act, 1947 ('the act', for short) is not competent law and disposing of the said reference as not maintainable. 2. briefly, the facts giving rise to this petition are as follows. the petitioner is a trade union registered under the trade unions act, 1926. according to the petitioner, it enjoys the membership of a substantial majority of the workmen employed in the concerns of the respondents nos. 2 to 14, who are under the management and control of one abhaykumar kasliwal and one shanibhukumar kasliwal. the petitioner union on behalf of the workmen working with respondents nos. 2 to 14 raised a charter of demands on respondents no. 2 to 14 by its letter dated march 24, 1987. a copy of the charter of demands was individually sent to all the respondents. the dispute having not been settled at the conciliation proceedings, which were attended by a common representative representing the respondents nos. 2 to 14. an order of reference came to be made by the under secretary to the government of maharashtra by, his order dated august 9, 1988. it appears that by mistake the concerned official clubbed all the respondents nos. 2 to 14 describing them as 'm/s. s. kumar group of companies, bombay'. though the conciliation proceedings related to each and every one of respondents nos. 2 to 14. it will be useful to reproduce the relevant portion of the order of reference, which reads as follows : 'whereas the government of maharashtra is of opinion that an industrial dispute connected with the matters specified in the schedule appended hereto exists between m/s. s. kumar group of co., bombay and the workmen employed under them, ' 3. before the industrial tribunal, the respondents nos. 2 to 14 filed their separate written statements raising various contentions. all of them, however, raised a preliminary objection to the maintainability of the reference on the ground that the reference made by the government is not ad-judiciable for the reason that there is no company, or group of companies, known as 's. kumar group of companies' and, therefore, there cannot be any industrial dispute between a non-existing company and its workmen. in view of the objection raised by the respondents nos. 2 to 14 the industrial tribunal framed a preliminary point, which reads as under : 'whether m/s. s. kumar group of companies is in existence, and whether the companies who have appeared are the parts and parcels of m/s. s. kumar group of companies' ?' 4. in view of this preliminary, objection, the petitioner wrote a letter dated december 10. 1990 to the under secretary to the state government that while making the reference, the said official had mistakenly used the title of the reference as 's. kumar group of companies, bombay' without specifying the units and that this has resulted in a preliminary objection about the maintainability, of the reference. the under secretary to the government of maharashtra, by his letter dated february 2, 1991 issued a corrigendum whereby for the words 'm/s. s. kumar group of companies. bombay', the names of the 13 respondents, viz. respondents nos. 2 to 14 came to be incorporated. 5. thereafter, the industrial tribunal took up the preliminary issue for consideration and upon hearing both the parties, the industrial tribunal proceeded to hold that reference itself is not competent. the industrial tribunal held that the corrigendum issued by the under secretary to the government of maharashtra dated february 2, 1991 for incorporating the names of respondents nos. 2 to 14 in the place of m/s. s. kumar group of companies was wholly without jurisdiction, as it amounts to cancellation of the first reference. the industrial tribunal mainly relied upon the judgment of the supreme court in state of bihar v. ganguli (d. n.) and others : (1958)iillj634sc for recording this finding. it was held by the industrial tribunal that there is no company or firm by name m/s. s. kumar group of companies and, therefore, there cannot be adjudication of a dispute against a non-existent company and since the corrigendum issued by the state government was beyond the powers conferred by section 10(1) of the act, the whole reference has become incompetent. the industrial tribunal, however, did not express any opinion on the question as to whether the companies, who have appeared, were the parts and parcels of s. kumar group of companies or there was functional integrality between the said companies. 6. mrs. menon, learned counsel for the petitioner, submits that the corrigendum issued by the state government was simply to correct the mistake it had committed in the title to the reference and it has not the effect either of withdrawing or cancelling the first order of reference. mrs. menon further submits that the ratio of d. n. ganguli's, case (supra) has no application to the facts of the present case inasmuch as the corrigendum was issued only to correct the obvious mistake and, therefore, it cannot be said that the state government has exceeded its jurisdiction under section 10(1) of the act. mr. cama, learned counsel for the respondents, on the other hand, argues that the corrigendum in effect amounts to withdrawal of the first reference and, therefore, it is bad in law and beyond the competence of the state government. mr. cama says that it is not open for the state government to substitute the parties to the reference under the pretext of correcting mistake or error. 7. thus the main question, which falls for my consideration, is whether the corrigendum issued by the state government on february 2, 1991 was within its competence. the question relating to the scope and extent of power of the government to make reference under section 10(1)(d) of the act has been subject-matter of discussion in various judicial decisions and since the impugned order of the industrial tribunal is mainly based on the judgment of the supreme court in d. n. ganguli's case (supra) i would deal with the said judgment first. in d. n. ganguli's case (supra) by the first notification, the government of bihar referred an industrial dispute between the management and their 31 workmen. the dispute was whether the dismissal of the workmen in question was justified and, if not, whether they were entitled to reinstatement or any other relief. by a second notification, the government of bihar referred another industrial dispute of a similar nature in respect of 29 other workmen. while the proceedings in respect of these two references were pending before the industrial tribunal, the government of bihar issued a third notification. the dispute referred to in the third notification was : 'whether the dismissal of the 60 workmen mentioned in annexure 'b' was justified or unjustified and to what relief, if any, these workmen are entitled'. it may be stated that the order made in respect of the third reference purported to supersede the two earlier notifications to combine the said two disputes into one, to implied the two sets of workmen involved in the said disputes together, and to add bata mazdoor union to the dispute. the question, which fell for their lordships' consideration, was whether the state government acted within its jurisdiction in issuing the third notification. an argument on the basis of section 21 of the general clauses act was advanced before the supreme court that the power to cancel or supersede a reference must be held to be implied and, therefore, the state of bihar had power to issue notification from time to time modifying the earlier notifications. 8. the supreme court held that it was well settled that section 21 of the general clauses act embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant provisions of the said statute. the supreme court then proceeded to examine the scheme of the act. after considering various sections, the supreme court observed : 'but once an order in writing is made by the appropriate government referring an industrial dispute to the tribunal for adjudication under section 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 section 17a. this is the effect of section 20(3) of the act. this provision shows that after the dispute 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 section 10(5) of the act which authorizes 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 section 10(5) the appropriate government stands outside the reference proceedings, which are under the control and jurisdiction of the tribunal itself.' 9. the supreme court then held that the relevant provisions would clearly show that the scheme of the act was inconsistent with any power of the government to cancel a reference which had already been made and which was pending before the tribunal. even on general principles, the supreme court held that the rule of construction enunciated under section 21 of the general clauses act in so far as it refers to the power of rescinding and cancelling the original order of reference cannot be invoked in respect of the provisions of section 10(1) of the act. in this context. it was observed as follows :- 'apart from these provisions of the act on general principles it seems rather difficult to accept the argument that the appropriate government should have an implied power to cancel its own order made under section 10(1). if on the representation made by the employer or his workmen the appropriate government considers the matter fully and reaches the conclusion that an industrial dispute exists or is apprehended and then makes the reference under section 10(1), there appears to be no reason or principles to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by itself.' it would be clear from this decision of the supreme court that once a reference of an industrial dispute has been validly made under section 10(1) of the act by the appropriate government, it has no power of rescinding or cancelling the order of original reference. 10. in my opinion, mrs. menon is right in saying that the ratio of the decision of the supreme court in d. n. ganguli's, case (supra) has no application to the facts of the present case because the question involved in the present case is entirely different. it is not disputed that the charter of demands was raised by the petitioner in respect of the respondents nos. 2 to 14 and a copy was served separately on each of the respondents. it is also not disputed that in conciliation proceedings, those 13 companies appeared through a common representative. if the order of reference is read on this factual background, it is clear that through inadvertence the government described respondents nos. 2 to 14 as s. kumar group of companies, though the intention of the government was to make a reference in respect of the workmen of the respondents nos. 2 to 14. it is well settled that a reference made by a state government under section 10(1) of the act can be amended either by way of addition or modification so long as the amendment has not the effect of withdrawing or superseding the reference already made. similarly, the state government has power to issue a second order of reference in order to correct an obvious mistake of a terminological error which has inadvertently crept in the first order of reference. mrs. menon brought to my notice a decision of the madras high court in south india estate labour relations organisation vs. state of madras and ors 1954 (ii) lln 198. the substantial question before the madras high court was about the competency of the government to refer a dispute concerning wages to adjudication by tribunal under section 10 of the act after there had been a fixation of minimum wages under the provisions of the minimum wages act, 1948. in that case, the reference made on march 24, 1952 was amended by the issue of a memo on june 25, 1952. it was further contended that the amendment was without jurisdiction. the contention was rejected on the following grounds : 'the objection is one of form and is without any substance. it would have been open to the government to make under section 10 an independent reference concerning any matter not covered by the previous reference. that it took the form or an amendment to the existing reference and not an additional reference is a mere technicality which does not merit any interference in the writ proceedings.' this judgment has been referred to by the supreme court in page 644 llj of d. n. ganguli's decision cited supra. the supreme court did not dissent from this view, but seems to have approved the view taken by the madras high court by observing as follows :- 'this decision would not assist the appellant because in the present case we are not considering the power of the government to amend, or add to, a reference made under section 10(1). our present decision is confined to the narrow question as to whether an order or reference made by the appropriate government under section 10(1) can be subsequently cancelled or superseded by it.' 11. it will be useful to make a reference to a decision of this court in state of maharashtra v. anantha krishnan : (1961)iillj732bom . in that case, the demand of the workmen for reduction in working hours was not referred for adjudication by the government on the ground that it was for the management to fix working hours within the limits laid down by the bombay shops and establishments act and it also stated that a similar demand was rejected by the industrial tribunal earlier. subsequently, the company gave a notice of change by which they proposed to increase the working hours. the union protested against such change and informed the company that it should approach the government for a reference of the dispute to an industrial tribunal for adjudication. therefore, the company approached the state government with a request that the change which they proposed to make in the working hours, may be referred for adjudication. the government decided to refer the matter for adjudication. instead of referring the company's demand for adjudication, the order of reference mentioned the demand made by the union for reduction of working hours as the item referred for adjudication. rectifying the mistake, the government subsequently by a notification modified the order of reference by substituting the company's demand on the item referred for adjudication. aggrieved by the order of the government, the union filed a writ petition for quashing the order of the government on the ground that government had no power to cancel an order of reference which was allowed. while dealing with the arguments of union, the division bench observed (pp. 735-736) 'the next question to be considered is whether government had power to rectify the mistake. it seems to us that government had this power. the first order having been made through a mistake, government was competent to correct it. the decision of the supreme court, which has been relied upon on behalf of the union, does not apply in the present case. in that case, government had taken a decision and referred a certain dispute for adjudication. subsequently government changed its mind and cancelled the order of reference. it was held by the supreme court that government had no jurisdiction to cancel its previous order. in the present case, however, the first order did not embody the decision of government. the second order was, therefore, issued in order to correct the mistake, which had been made and to give effect to the real decision of government. in our opinion, therefore, the decision of the supreme court cannot be relied upon in the present case.' 12. the view expressed by this court in anantha krishnan's 'case (supra) has been reiterated in kamani employees' union v. kamani engg. corporation : (1966)iillj446bom , where the division bench of this court observed : (p 458) 'if the effect of the second order of reference is to cause interference with the exercise of the jurisdiction of the industrial tribunal in dealing with the matters of which it is seized, then the second order in substance amounts to supersession or withdrawal of the first reference and is therefore invalid in law, unless the second order of reference has been made in order to correct an obvious mistake of a terminological error which has inadvertently crept in the first order of reference.' 13. in employers of daily news v. its workmen. : (1960)illj599ap , the first reference referred the dispute (p. 601) : 'whether the termination of the services of satyanarayana and satya seela are justified if not, to what relief they are entitled ?' a subsequent notification styled as an erratum was issued by the government of andhra pradesh reciting that in the aforesaid item the words 'termination of services' should be read as 'suspension of services'. the question arose whether it was competent for the government to issue the second notification. it was held that by means of the latter notification, the government only corrected an obvious terminological error and did not withdraw, cancel or revoke or supersede the first reference. it was further held that the government could have also made an independent reference on the question of suspension. as it merely took the form of an amendment of the previous reference, it could not amount to cancellation or supersession of the first reference. 14. i am in complete agreement with mrs. menon that all that was done by the government of maharashtra was simply to correct the mistake it had committed in title to the reference and, therefore, it cannot be said that the government has substituted new parties in place of the old one. thus the corrigendum issued by the government must be understood as a correction and nothing more. in the result, the writ petition succeeds. rule is made absolute in terms of prayer clause (a). the industrial tribunal is directed to proceed with the reference forthwith and decide the same expeditiously and in any event not later than six months from today. 15. it is made clear that this order shall not be treated as an expression of opinion on the issue about the functional integrality between the respondents nos. 2 to 14 and the said issue shall be decided on its own merits. 16. certified copy expedited.