ISHWAR CHANDRA

v .

.SATYANARAIN SlNHA & ORS.

March 14, 1972

[K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.)

Universit; y of Saugar Act, 1946, s. 13(2)-Comml•tee of three to select pan\ll of names for pose of Vice.Chancel/or-Only two members of com1nittee present at meeting to selecl panel-In the absence of any provision as to quorum the recommendations of majority of members who are presenfl at the meeting is valid.

From a panel of names recommended by a Selection Cpmmittee eonstituted under s. 13(2) of the University of Saugar Act, 1946 the then Chancellor of the University appointed the appellant "' Vice- Chancellor.

Under Ordinaiu:e No. 1 of 1970 the Governor of Madhya Pradesh !>came the Chancellor of the Cniversity. Exercising bis powers of review under s. 43A of the Act the Governor, as Chancellor, after notice to the appellant, set aside bis appointment as Vice..Cbancellor on the ground that only two out of the three members of the Selection Committee were present when bis name was included in the panel. The appellant filed a writ petition in the High Court.

The High Court called fur too correspondence between the Chairman of the Committee and the member who was absent at the mting. On the lnsis. of a Jetter written by the absent membelr to the Chairman, the High .Court came to the conclusion that the member had been deliberately kept out of the meeting and held that the Chancellor was justified in the opinion formed by him under s. 43(A).

Allowing the appeal, this 8ourt,

HELD: (i) The High Court sustained the order of the ChaI)cellor on grounds other than those relied upon by him in that order, [for dismissing the writ petition in Ii mine]. The order made by the Chancellor was based entirely on the legality of the meeting where only two of the three mpmbers were present. There was nothing to show that the correspondence was persued l>y the Chancellor.

Further, the correspondence did not support the assumption in the High Court's order that the Chairman. was trying to keep out any member from the meeting. [803 D-Gl

• 1 (ii)' If for one reason or the other one of the members of th! Committee, after due notice, could not attend; it did not make the meeting of the others illegal.

In such circumstances where there was no rule or regulation or any other provision for fixing quorum in the presence of the majority of the member_s would constitute a valid meeting and matters considered thereat could not be held to be invalid. [80l HJ

C1VIL Al'!'ELLATE JURISDICTION : Civil Appeal No. 243 of '1971.

Appeal biy special leave from the judg!llent and order dated September 3, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 256 of 1970.

JSHWAR CHANDRA v. s. SINHA (Jaganmohan Reddy, J.) 797

A C. K. baphtary, L. M. Singhvi, S. K. Mehta, K. L. Mehta and

K: R. Nagaraja, for the appellant.

B. Sen and/. N. Shroff, for respondents Nos. 1, 3 and 4.

S. S. Khandujd, S. K. Dhingra and Promod Swaroop for res~ pondent No. 2.

The Judgment of the Court was delivered by

P. Jaganmohan Reddy, 1.

This is an appeal by special leave

against the summary dismissal Of a Writ Petition filed by the appel!i; nt against the order cf the Chancellor of the Saugar University dated the 15th June 1970 by which his appointment s Vice-Chancellor of that University was cancelled.

It may at the outset be mentioned that the appointment of th~ Vice-Chancellor of the Saugar University is made by the Chancellor of that University under section 13 of the University of

0 Saugar Act, 1946 (hereinafter referred to as "the Act") from "

panel of net less than three persons recommended by the Committee constituted under sub-section (2) of that section.

The Committee to be constituted under sub-section (2) was to co.nsis1 of three persons, two of whom shall ])~ elected by the Executive Council by single transferable vote from amongst pe•sons nt connected with the University or a College and the third shall b~ I. nominated by the Chancellor who was also empowered to appoint one of them as Chairman of the Committee.

It is unnecessa · to refer to other provisions of this section because these are not relevant for the purpose of this appeal.

It appears that under the above provisions a Committee to submit a panel of names for the appointment of a Vice-Chancellor for the University was duly F collstituted consisting of two persons elected by the . executive Committee of the University, namely, G. K. Shinde, Retired Chief Justice and Justice T. P. Naik of the MaciliyaPrade>h High Court while the third member Shri C. B. AgarWaIFRetired Judge of the Allahabad Hih Court was nominated by the Chancellor, Rajmata Vijaya Raje Scindia who also appointed G. K. Shinde as the.

G Chairman of the Committee.

The Chairman thereafter appears to have carried on a correspondence to fix a convenient place and time for the meeting, which was ultimately fixed at Indore on the 4th of Aoril 1970.

Justice Naik was, however, unable to attend the meeting and in his absence the other two pe•sons, Shri Shinde and Shri. Aawal met a~ a Committee and submitted a panel of names from which the Chancellor apooinied the •appe1lant on 7th H April 1970 as a Vice Chancellor with effect friim. the 22nd June

1970. for a -period .of five years. The ari,, eilimt t 1.he. -tim~ c.f. t!:~ appointment, it seems, was acting as Vice-Chancellor. 5-LI06!SupcI/72

On the 9th of April 1970, the Governor of Madhya Pradesh, A Shri K. C .. Reddy .promulgated Ordinance No. 1 of 1970 . by section 2 of which s_ub-section ( 1) of section 11 was substituted by a new sub-sectio11 ( 1) whereunder the Governor of Madhya Pradesh was made an ex officio Chncellor of that University.

By section 3, it was provided that as from the date of the coming into force of that Ordinance, the Chancellor in office immediately n before the date aforeiaid shall cease to hold office of the Chancellor and the Governor of Madhya Pradesh shall assume the said office. By virtue of this Ordinance. Rajma!a Vijaya Raje Scindia ceased to be the Chancellor.

On the 23rd April 1970, the Governor again passed another Ordinance by section 2 of which he substituted section 43 of the Act by a new section 43. By §ection c 3 a new section 43A was also added.

Section 4 made the amendments made by sections 2 and 3 to ope, ate retrospecitvely as from the commencement of the original Act.

The amended sections 43 and 43A are as foJJows :-

"43. If any question arises whether any person h"' been duly appointed, elected, nominated or coopted as, or is entitled to be, a memltr of any authority or other body of the University or any officer of the University, ihe matter shall be referred to the Chancellor wl]ose decision thereon shall be final.

43A. The Chancellor may, either on his own motion or on the application of any party interested, review any order passed by himself or his predecessor in office if he is of the opinion that it is not in accordance with the provisions of this Act, the statutei, the Ordinance o;· the Regulations or is otherwise improper and pass such orders in reference thereto as he may think fit."

After the above Ordinances were promulgated, the Secetary to the Governor of Madhya Pradesh wrote on the 20th May 1970 to the appellant as follows :-

"The question has come up before the. Chancellor whether the meeting of the committee constituted by his predecessor under section 13 ( 2) of the Act held on 4th April 1970 at Indore at which only two members out of the three were present was legal, and whether the recommendations made by the committee at that meeting were legally valid The Chancellor has been advised that tb.e meeting held on the 4th April with only two meQ!bers present and the decisions taken at the meeting were not legal.

As a consequence, the orders issued by the University oftice dated 14th April would have to be rescinded.

ISllWAR CHANDRA v .. s. SINHA (Jaganmohan Reddy; J.) 79!

Before the Chancellor takes action in accordance with legal advice, he has desired that you should be asked if you have anything to state why such action s.hould not be taken.

I am desired to request you to send your reply as early as possiple, and at the latest within a week".

To this letter the appellant sent a reply on the 9th June 1970

after having earlier obtai~d an extension of time. In that reply he tried to make out a case that the recommendation of the Committee of two members out of three was perfectly valid and in support of it he cited various authorities and also a precedent of the same Governor who as the Chancellor of Indore University seems to have maintained the selection made by his predecessor in similar circumstances.

The Governor did not, however, accept the appellant's plea but passed the following impugned orders oh the 15th June 1970 :-

"WHEREAS, on applications made in that behalf, the Chancellor is of the opinion that order dated the 7th April 1970, passed by his predecessor in office appointing Shri Tshwar Chandra as Vice-Chancellor of the University of Saugar with effect from the 22nd June 1970, for a period of five years is not in acco dance with provisions of sedan 13 of the University of Saugar Act, 1946 (XVI of 1946) (hereinafter referred to as the said Act);

NOW, THEREFORE, in exercise of the powers conferred by section 43A of the said Act, I, the Chancellor of the University of Saugar, hefeby-

( i) cancel the aforementioned order datd the 7th April 1970 appointi.ng Shri Ishwar Chandra as Vice- Chancellor; and

(ii) direct that the committee be constituted for submission of panel in accordance with the provi; ions of section 13 of the said Act".

G On the !st July 1970, a Writ Petition was filed in the High Court of Madhya Pradesh and it appears that on the 3rd July 1970 the Court directed the appellant to produce the correspondence retween the Chairman and the members of the Selection Committee in respect of the meeting to be held to recommend the

~.ames for the appointment of a Vice-Clia111cellor.

The appellant, 1t seems, produced the correspondence with an affidavit on the 25th July 1970 stating that he had obtained the correspondence from the Chairman of the Committee. the former Chief Justice Shinde.

On the 3rd of September 1970, rule nisi was refused.

On the 19th September 1970 the application for leave to appeal to the Supreme Court was also rejected.

In the latcer order two facts had been stated which have been challenged as incorrect.

The first one was that the Chairman had at first fixed Bhopal as the venue of the meeting and secQndly that as thl' working Vice- Chancellor of the University, the petitioner had accfl6s to all the documents relating to the meeting and his detailed reply given to the Chancellor was grounded 01n some of them.

Though there is some justification in these contentions what has to be seen is whether the order rejecting the Writ Petition was justified, and if so, now that the order of the Chancellor has been impugneJ, L that order valid.

It is clear from the Governor's impugned orde:· that the appellant's appointment was held to be invalid becmso only two .members of the Committee we:e present at the meet>ng.

The High Cour~ while holding that in the absence of any provision in the relevant enactment or the rules or regulations made thereunder, a majority of members of a selection committee like ihe one in the case before them would constitute the quorum, however, presumed that the question for consideration of the Chancellor was not merely one relating to the existence of the quorum requisite for a valid meebng but something diffecent., On that a•sumption it examined the correspondence which ensued between the Chairman and Justice T. P. Naik to asceta1n whether in fact a valid meeting had been called.

Ai;:cordjng to the leamed Judges, Justice Naik had written to the Clnh:ian to say that he, the Chairman, was determined to hoict the m etiiJg presumably in his absence, and, therefore, the High Couct thought' that if the Chan cellar, acting under section 43A of lhe Act formed the opinton that the meeting held on that date was not legal, it cannot be said that there was no prima facie material for the formation of that opinion, reached by him after giving to the petitioner an opportunity to state why the action propose4 should not be taken.

The assumption in this order rejecting the Writ Petition is not warranted, firstly, because the correspondence does not show that there was any deliberate attempt made by the Chairman to ex- ' elude one of the members in this ca<e, Justice T. P. Naik, and

secodly, that the Chancellor had, because of this exclusion, declared the meeting held on the 4th April 1970 as not beip.g valid 0 We have already pointed out that the Chancellor was merely concerned with the legality of the recommendation made by two out of three members and n()t th'at any attempi was made by the Chairman to exclude one of the members.

Neither the show. cause notice, nor the reply given blV the appellant to that notice, nor even the O•der of the Chancellor indiCates any such ground as that assµmed lw the Hih Cn,;,.,: to 'fmm th?. basi• of the Chl!II' cellor's. order. 'The corresp00dence shows thai the ChairmaT

ISHWAR CHANDRA v. s. SINHA (Jaganmohah Reddy, 1.) 801

had written a letter on the 12th February 1970 in which he inquired of Justice Naik whether the 7th' and 8th March 1970

would suit him to meet at Bhopal to consider the names for the panel.

Later on the 20th February 1970, he wrote another letter saying that the other member was abroad, and therefore, the meeting whiclt was proposed to be held on the 7th or 8th cannot be held and that he would let him know when a new date was fixed.

In .fact, Justice Naik replied o.n the 27th February 1970 acknowledging these letters and asking him to let him know the date of the meeting as and when fixed.

On the 8th March 1970 Mr.

Shinde again wrote to Justice Naik fixing the meeting on the 12th March 1970 at 10.30 a.m. at Indore and also suggested that if nece; sary they may meet the next day, the 22nd March 1970. On the ! 6th March 1970 Shinde sent a telegram to Justice Naik asking him to wire if 4th April was suitJble at Indore. On the 18th March 1970, he again sent a telegram to him saying : )'Doctors Forbid travel stop wire whether 4th & 11th April suitable for Indore".

Justice Naik sent two telgrams, one on the 21st March 1970 saying that 4th is suitable at Saugar or Bhopal and another on the 27th March 1970 stating that both 4th and 11th suitable at Saugar or Bhopal.

He also wrote two letters on the 26'h and 27th to Shinde.

Shinde had earlier written on , the 24th March 1970 to Justice Naik in which he said as follows:- ' "The contents of your te!egram were conveyed to, me on the phQne today. It appears that 4th and 11th April both a"e suitable to you at Saugar and ahopal. As I told you before, I am recovering from th~ attack of virus fever and am, therefore. not strong enou2h to undertake a car journey of 120 miles to Bhopal. Thee is no convenient plane to come to Bhopal either.

Lf I come by nlane I shall have to stay ove• the night at the Circuit House and as I am still on diet, the Circuit House food will not suit me.

As you can come up to Bhopal you can easily come to Indore ei•her bv Car or 'by Plane.

The plane leaves Bhopal at about 9.00 a.m. and reachs Indore at about 9.30 a.m.

After attending the !peeting you can leave by plane which leaves for Bhooal at about 2.00 p.m.

As far as Lunch is concerned, if vou let me \mow if you are veetarian or .non-vegeta'1an, .I can arrane to give you lunch at mv place.

If it h impossible for you to come. to Indore I would reaue; t you to send me your suetfons l"\ard

in~ suitable names for the pJst of Vice-Chancellor of the sugar University by the 3rd of Aoril.

I would. however, request you to m-ake it convenient to atte!\d the meetin~ at Indore.

I have al-eady sent you a tel"- gram to the effect that •he meeting iS fixed on the 4th

of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m."

Hoping to hear from you b(y the return of post and with kind regards".

Before this letter reached to the tclegrnm received by him, Justice D Naik wrote a letter to Shinde as follows :-

"I am in receipt of your telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar .University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore University.

I regret my inability to be present at Indore on the date and time specified, though I may be 3ble to attend the meeting if the venue is changed to Bhopal.

It is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th ci March

1970, that it would not be possible for me to attend it there on that date.

Anyway, knowing fuli weli that it would not be possible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence.

I can only regret your decision.

If you are still interested in having my pres¢nce for the meeting, you may fix it either on the 4th or the 11th April 1970 at Saugar or Bhopal, though Bhapal would be more convenient to me personally.

I hope you have recovered from the effects of your illness biY now".

This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and ii we may say so, without justification that Shinde was determined to hold it there presumably in his absence.

On the 27th Ma-ch 1970, the next day, he however, after the receipt of the letter cf the 24th instant from Shinde did not take up the attitude that the meeting was being held presumably to keep him away from attending it.

Justfoe Naik, however, tried to explain his difficulty.

He said :-

"I am in receipt of your letter dated 24th March 1970.

I am sorry to note that you have not yet recovere<! from the effects of your illness.

I do hope you shall soon get well.

ISHWAR CHANDRA v. s. SINHA (Jaganmohan Reddy, J.) 8 Ol

As for my coming to Indore, I had c0nsidered the possibility of my going there by air from Bhopal. but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy.

I had, therore, togive up the idea of going by air, and as I cannot spare more than a day. for the meeting, I had intimated to you that it would not . be possible for me to come to Lndore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University.

As for your kindly suggestion that I may lfy: a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the perscms whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University Act.

With kind regards".

This letter clearly negatives the assumption in the High Court'i order that Shinde was trying to keep out Justice Naik from the meeting.

On the other hand, Shinde in that letter had requested Justice Naik to suggest names cl persons to be considered which prima facie negatives any iintention on his part to keep Justice Naik away from the meeting.

There is also nothing in the materials on the record to show that the correspondence cited above was persned by the Chancellor either at the time when the show cause notice was given to the appellant or at the timeof making the impugiied Order. It cannot, therefore, be assumed that the Governor was inJluenced by the above correspondence.

It is rather unfortunate that the appellant's Writ Petition was dismissed in /imilfe and without a proper appreciation of all the relevant, facts.

There is little doubt that the impugned Order made by the Chancellor was b"!Sed entirely on the legality of the meeting where only two out of three members were present when the ame of the appel'ant was recommended.

The High Court delved into the correspondence to sustain the order of the Chancellor on grounds othr than those relied upon by him in that order for di, missiITTg the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held bly two of the three members on the 4th April

1970 was Ie-ral because sufficient notice was given to all the three membe's.

If for ooe reason or the other one of them could not attend, that does not make the meeting of others illegal.

In such circumstances, where there is no rule or regu1ation or any other provision for fixing the quorum, the presence of the majority of the members would con.titute it a va!in meeting and matters considered there at cannot be held to be invalid.

This proposltion is well recognised and is also so stated in A Halsbury's Laws of England, Third Editi011 (Vol. IX, page 48, para 95). It is, therefore, unnecessary to refer to any decisions on the subject.

In the view we have taken, the appeal is allowed with costs against respondent 3, the Order of the Chancellor revoking the appointment of the appellant is set aside and the appe'la.nt is declared to have been validly appointed as Vice-Chancellor o'. ll the Saugar University as from the 22nd June 1970.

G.C.

Appeal allowed.

ISHWAR CHANDRA

SATYANARAIN SlNHA & ORS

March 14, 1972

K. S. HEGDE

P. JAGANMOHAN REDDY, JJ.

Saugar Act, 1946

s. 13(2)

s. 13(2)

University of Saugar Act, 1946

Madhya Pradesh

s. 43A

s. 43(A)

A C. K. baphtary

L. M. Singhvi

S. K. Mehta

K. L. Mehta

R. Nagaraja

B. Sen

N. Shroff

S. S. Khandujd

S. K. Dhingra

Promod Swaroop

P. Jaganmohan Reddy

Saugar University

section 13

Saugar Act, 1946

G. K. Shinde

T. P. Naik

MaciliyaPrade>h High Court

C. B. AgarWaIFRetired

Allahabad Hih Court

Rajmata Vijaya Raje Scindia

G. K. Shinde

Indore

4th of Aoril 1970

Naik

Shinde

Aawal

7th H April 1970

22nd June

1970

Governor of Madhya Pradesh

K. C .. Reddy

section 2

section 11

section 3

Rajma!a Vijaya Raje Scindia

23rd April 1970

section 2

section 43

section 43

section 43A

Section 4

sections 2 and 3

sections 43 and 43A

20th May 1970

section 13

4th April 1970

9th June 1970

Indore University

Tshwar Chandra

University of Saugar Act, 1946

section 43A

Ishwar Chandra

section 13

High Court of Madhya Pradesh

Shinde

3rd of September 1970

19th September 1970

Supreme Court

Bhopal

section 43A

8th March 1970

Saugar

Bhooal

D Naik

Saugar

17th ci March

1970

April 4, 1970

4th or the 11th April 1970

Bhapal

27th Ma-ch 1970

Justfoe Naik

Lndore

4th of April 1970

4th April

1970

22nd June 1970


BALLARPUR COLLIERIES CO,

THE PRESIDING OFFICER, C.G.I.T. DHANBAD AND A.l.lt.

March 14, 1972 [C. A. VAIDIALINGAM AND I. D. DuA, JJ.]

Industrial Disputes Act, 1947-S. 23(b) and S. 23(c)-During pendenc)' of proceedings befo;-e Tribunal c.nd during a settlement workers struck-Whether S. 23 (b) or S. 23 (c) is attracted.

In 1956 the "Majumdar Award'" was published and to this Award the appellant' was also a party. In January/February, 1960 the workers of the appellant Colliery had gone on strike. The efforts of the ma'lagement failed to persuade the workers to resume duty. On the intervent:on of the Regional Labour Commissioner (C), Bombay, the matter was resolved as a result of which the workers resumed their duty and also got their dues etc., irilm the management. In the report o'f what had transpired during the negotiation! (Ex.D) it was stated, inter a/'a, that the Regional Commissioner had also been assured by the workers that they would see that "such strikes are not resorted to in future and would adopt all consftutio'1al means to get their grievances redressed". Later, due to certain d:fficulties in interpreting the terms df the Maiumdar Award, the Central Government, under s. 36A .of the Industrial Disputes Act, 1947, referred to Shri Palit. the Chairman of the Central Government Indlls,. trial Tribunal, Dhanbad, the necessary question seeking interpretation of certain provisions of the' said Award.

Thi~ reference is dated May 23, 1960. ' It) 'the Award riven by Shri' Palit it was mentioned that all the l)Brtie8 who were impleaded in the Majumdar Award would be bound by. the Ia ter 1\.,.ard.

During the. pendency of the proceedings before Shri Palit. the workers of the applant went on strike from October, 4, 1960, the cause for the strike being dismissal of 6 workmen. No notice of the strike, as requ:red by Sta'1dhg Order .no. 32, was given. The .aooellant, therefo.re, filed an ap~Hcation. belfo•e the Regio, al Labour Commissioner (Centra1) on October 31, 1960 for a 'declaration that the str:'ke was illeal. The Regional Commissioner he4f the strike to be leal and an apt>eal to the Industrial Tr{bu', al by tl'le apoellaTit also failed. Thereafter. the appellant filed a wtit "Detition before the Hillh Court but it was dism'ssed. On appeal to this Court, two main points wee raised by 'the a-ppellant : ( 1) that the strike took place during the pend•mcv of the _reference before Shri Palit and t1, erefore under cl. (b) of s. 23 of t11J Industrial Dispu'e5 Act, the strike was .meal; (2) in anv case, the ' atrke took place

duri11~ the Ml\dency ot the aettlemel1t tected b~ th, e Re

lonal Commissioner, Bombay a11d, tberefo"e, und r el. (e) of s. 23 of the Industrial Dlaoutea Act, the strike wu llleaal.

All owina the at)'j)ell, H&.D: (l) nte lepl tftect of rerere11ce under 1. 36A ol th~ lfldUI trial Dlsoutes Act Ia to.. reonen the narller reference termlnatln~ i11 the ¥•1umdq,. Award, thouQh olv for the llmlted nt1mos" nf t.l:!e interoreta. hn of .the provision~ of the award. i" resDf!ct of the dtftlcultiet or d()nJ, ta

~vlniZ rise o the refere'lce. S'nee the .. .,, ellaflt wa1 a Mrty to the Pallt Award, Its a., licatio; to wltMrAw and it1 non-nllici.,•tlo'' .If) the proceedln"S notw1thatandn~, 1. 2'(b) nf tl, e Indutr1al Dieputet Act wu attracted and the ttrike was illepl. (813 E] ;

SUPREME COURT REPORTS

[1972] 3 S.C.R.

(ii) The assurance of the workers to the Commissioner that they would not resort to such strikes in future and that , they would adopt all constitu.tional means to get their gr, evances redressed, neither amounted to a contract nor was it a matter covecd by the said settlment with the Regional Labour Commissioner.

Therefore, s-: 23 (c) was not attracted H in the facts and circumstances of the present c3se. In order to be hit by s. 23(c) the strike must be in breach of contract in respect df a matter covered by a settlemnt which is in operation at the time of the strike. rs11 Gl

CIVIL APPELLATE JURISDICTION: C.A. No. 876 oi 1968.

Appeal by special leave from the judgment and order dated October 28, 1965 of the Patna High Court in M.J.C .. No. 721 of C 1962.

M. N. Phadke and Bhuvnesh Kumar_i, for the appellant.

The Judgment of the_ Court was delivered by Dua, J. Facts giving rise to this appeal by special leave may briefly be stated : f) Qn May 18, 1956 an award was made by Shri Majumdar, which is popular1y known as the M1jumdar Award.

On May 23, 1960 the Central Government, in exercise f the power conferred by s. 36A of the Industrial Disputes Act, 14 of 1947 (hereinafter called the Act) referred to Shri G. Palit, Chainnan, Central Govenunt Industrial Tribunal, Dhanbad the question E "Whether 'traffic' is to be placed in Grade II of the clerical service in tenns of the said Award the award

being the award of the All India Industrial Tribunal (Colliery Disputes) published in the Gazette of India Extraordinary Part II, Section 3 .dated the 26th May, 1956 (S.R.O. No. 1224 dated 18-5-56).

F 'Traffics' are a category cf clerical s_taff covered by the award of the All India Industrial Tribunal (Colliery Disputes), popularly known as the 'Majumdar Award', and it appears that in the opinion of the Government a

difficulty or doubt had arisen with regard to the interpretation of the provisiCitlS of the said award in so far as G it related to the scale of pay etc. for 'Traffics' and accord.; ingly, the question had been referred for terptation to the Dhanbad Central Government Industnal Tnbunal,

then presided over by Shri G .. Palit. TIPs order of the Central Government gave rise to Reference No. 27 of 1960." H During the course oi the hearing. of this refen.ce some c~Uiery owners including the appellfi:nt Ballarpu!' Collienes Co., whtch IS a private partnership, in whose collieries there were mo workmen ·

BALLARPUR COLLIERIES V. PRESIDING OFFICER (Dua, J.) 8 07

with the designation of 'Traffic', wanted to be excluded {rom t11e reference altogether on the ground tlrat they were not interested in the dispute pendihg before the Ttiblinal presided over by Shri Palit.

The appellant presented an application in August, 1960 stating :

, "So far as the petitioner is concerned this dispute does not concern these collieries because thy have not got any traffic in employees coming under this .category. As such the presence of the petitioner before this Tribunal is not necessary." It appears that tbe Tribunal did not record any express order either. pennitting the appellant to withdraw from the dispute or declining such pennission. The Appellant, however, did not take part in the proceedings thereafter and the workers of the appellant's colliery also did not take any steps to participate therein. In the Award

Jl; iven by Shri Palit known a~ 'Palit's Award' which was publishqd in the Gazette of India on November 22, 1960, it is not , disputed that the case of these collieries as well, including the appellant's colliery at Ballarpur where the workmen described as 'Traffic' did not exist for the e being; was dealt with.

Reference to the application presented by the appellant and other colliery owners. was made in the Award in the followinR terms:

"Then with reference to the contention ot. some of the . collieries that where the workmen designated >as 'traffic' do not occur, their names should be omitted from the present reference under section 18 ( 3) of the Industrial Disputes Act, 1947. But this section has been wrongly invoked here.

In the present case I have not summoned them in pursuance of the .said section. So the question does not arise whether they were so sum~ moned without proper cause.

They have been summoned in the present case becuse they were parties to the orinal award.

I haye to summon all the parties who were impleaded in the original coal Award.

So this contention is ov_er ruled.

In an omnibuo; or industrywise reference it .is not necessary that the disoute must relate to each one of them O" the cause of action muc; t exist in all cases.

Even if the dispute i~ not there but they are made parties in the reference, all that mav be said is that they are under no oblieation to imnlement the Award.

But the award will be bindinq on all of them all the same.

So lam unable to. exclude them."

DurinQ" the oendencv of the omceedings befMe' Stiri Pali~ the worlc.ers of the aooellant's collierv we'lt on strilc.e from October 4.

1960. the cau'\e for the strike beinl!: dismissal of six workmen. No l)otice was givep. of the strike though, accordin~ to the judgrrient . . '

SUPREME COURT REPORTS f1972] 3 S.C.R.

of the_ High Court uder appeal under standing Order No. 32 of the A Standmg Orders pproved by the Statutory Authority, the workmen were bound to give 14 days' notiCe before going on strike. The appellant, theeore, filed an application, b~:ore the Regional Labour Comtruss10ner (Central), on October 31; 1960, in pursuance of Paragraph 8 ( 1 ) of the Coal Mines Bonus Scheme for a declaration that the strike was illegal. The Regional Commissioner, B however, _held the_ strike to be legal with the result that the appel- 1ant preferred an appeal before the Industrial Tribunal under paragaph 8 ( 4) of the said Scheme. This appeal filed a.nd the appellant approached the Patna High Court by means of a writ petition

as~ ailing the legality of the strike. The following three points were raised by the appellant in challenging the strike before the High c Court:-

( 1) The strike took place during the pendency of

Re-:erence No. 27_ of 1960 before Shri Pali•, and consequently clause (b) of secticn 23 woul_d apply.

(2) The strike took place durin~ the pendency of th~

settlement effected by the Regional Labour Comm; ssioner, BombJy, while settling the dispute which arose out of the strike in January /Febru ary, 1960 and consequently clause (c) of ~ction 23 of the Act woul)l apply. ( 3) In any vie~ of the case, as the Labourers resorted to strike without iving due notice as requited by Standing 0"der No. 32, the strike .W!$ i.n breach of a contract between the employer. and its .workmen and was, therefore, illegal. - The High Court did not agree wilh the appellant's c~entions and dismissed the writ petition. . F

Bef-ore us .the same thre_e points were. -raisd. by Shri Phadke,

1eaed c(!unsel.for th~ appellant. The third Joint was veiy fai.rly not pressed by Shri Phadke becau)e mere breach. of a Standmg Order. could not render the strike illegal under ss. 23, and 2~. a.f the Act: Only th~ first two points were presse~. In so far as S: 23 (c) C is concet111ed Sh"i Phdke made a refereq~ to the settltnent, a . copy of which was annexed with thewrit'petition in the ltft.'Court.

It aopears that the worken of the. aopeUant's ~1liezy had qone on strike in the months of January/February, 1960 and ef!orta of the

manaement had failed to persuade the workers to ores_urhe duty ..

The Regional Labour ComntiMioner(C) Bombav, thertupon.e a D.0.1~\ter dated February 4. 1960. toSh~ Haldltar. ~U:t R Of the Warke"s' Unibn, ift '+et)ly ttHhe said P~~1dent'a, t.el~m of the .same date,'in which 'thel; abolir CdmlSSIOner h~. ··~ that hewas going to visit Nagpuroh Peb!fllary 9,.1960 and would

BALLARPUR COLLXERIES v. Pl\ESIDING OFFICER (Dua, J.) 809

A look into. the matter.

The Regional Labour Commissioner had in that letter requested Shri Haldulk:ar to make it convenient to see him at the office of the Conc.iliation Officer at Nagpur.

The Regional Labour Commissioner then used his good offices in getting the matter resolved as a result of which the workers resumed their duty and got their dues etc., from the management.

The report B Of what transpired at the time of the visit of the Regional Labour Commissioner was recorded in 'annexure D' annexed to the writ petition filed in the High Court. It appears from "annexure D"

that after discussing t~1e matter with the appellant and the _Jvork

men, the Regional Labour Conunissioner induced both sides to

adopt a reasonable attitude and the strike was called off.

The C relevant portion of annexure 'D' may here be reproduced :·

lt was on lOth February, 1960, th1tt 1 visited Chanda and had talk:> with Shri Zallaram, Vice-President of the

Union and other important workers of the Col1ie y.

A representative of the Management Shri S. V. Kanade,

Personnel Officer was als9 present at the tim! of discussion.

I impressed upon the Union Officials and the workers that going on strike would not solve their problems but would on the other hand create complications and bitter relations between the Management and the workers.

I also emphasised upon the Management that they should also see that the grievance of the workers were not allowed to accumulate and full justice was given to them.

Considerable discussions continued on this issue and I asked the Union Officials that they would withdraw the strike immediately so that the relations between workers and management could be restored to normalcy ...... The lJnion thereupon stated that owing. to_ the strike the workers were likely to lose their bonus and continuity of service for purposes of annual leave. I

tld them that I would take up the matter with the Management provided they call off the strike first to which they agreed.. I was also assured that they would see that such strikes are not resol'ted to in future and

wotild adopt 'all constitutional means to get their griev-

<mces tedressed.

i saw Shri Jamnadas Daga, this morning on my retum

ftom<GlJ4n~:aud infoim~ him ofthe discioo which

had tans¢roi i at Qband.a\ H~ agreed to .. CODSider the m.att.er favQW'abcy'; wllenJ infcmnod.hi.m .that.tne workers had already agreed to call off the strike onthe 1Oth

SUPREME COURT 1EPORTS

[1972) 3 S.C.R..

February, 1960 the Ma.nagement agreed to the following:

( i) that the 3 suspended workers would be allowed to join their duties within a peiiod of 24 hours to 48 houi:s and possibly within .24 hours after the resumption of wo&

( ii) tb4lt the workers will not be deprived of the Annual leave under 'the Mines Act 52 with wages on account of this stoppage of work if they are otherwise eligible.

(iii) That although the strike'rs are not entitled to bonus as a special case, which will not form a C precedent, the Management has agreed to reduce the qualifying period from 65 to 60 attendances to 50 and 45 attendances in the quarter ending March, 1960 only.

As regards the amount of bonus it would be calculated at.one-sixth of the earned basic wage instead of one-third nonnally D paid under the Bonus Scheme. ·

(iv) Workers who have left the colliery for their homes, would be allowed to join their duties within a period of 15 days from the resumption of w()'rk."

According to Shri Phadke this report embodies a settlement btetween E the appellant and the workmen and the assuran~ given by the workmen not to resort to strike but to adopt constitutional means

for getting their grievances redressed being one of the matters coveted by the settlement, s. 23(c) of the A, ct was attracted rendering the strike illegal.

Let us see if s. 23 supports this submission. That section F Teads: .

"23 General prohibition of strikes alld lock-outs;

No workman who is employed in any industrial

tal:iishment shall go on strike in breach of oontrt and n6 employer of any such workman shall declare a lock-

G out;_

(a) during the penncy of concillatiQn l)rocetdings

before a Board and c; even days after the conctusion of suchl?f()(; eedinp;

(b) during the pendency of g! beft)re a Labour Court, Tribunal or N~~ Tn~ -~ two months after the conckisiotf or~~- -i"'g-;:

' ~~~

" ' ..

' •,

: (

BALLARPUR COLLIERIES v. PRESIDING OFFICER (Dua, J.) 811

(bb) during the pendency of arbitration proceedings before an arbitrator and two months after the condusion of such proceedings, where a notification has been issued under sub-section (3A) of section 1 OA; or

(c) during any period in which a settlement or award

i; in operation, in respect of any of the matters

covered by the settlement o: award." In support of his contention Shri Phadke relied upon a recent decision of this Coun in Workmen of the Motor Industries Co. Ltd. v.

Management of Motor Industries Co. L'd. Bangalore(l) specific c reJia.nce being placed on the following passage at pp. 31 0~ 1 J :

"Read in the c.ontext of the other provisions of Part I of the seitlement of which it is part~ cl. 5 was intended to prohibit (a) direct action without notice 'by or at the instance of the association, and (b) strikes 1Sy W9rkmen themselves without the approval of the as; ociatioo. The words 'in no case' used in the clause emphasise that direct action by either party without notice should not be resorted to for any reason whatsoever.

There can be no doubt that the settlement was cae as defined by s. 2 ( p) ct the Lndustrial Disputes Act and was binding on the\

workmen under s. 18 ( 3 )' of th..: Act until it was validly terminated and was in fore" wr .. n he said strike took

place.

The strike was a lightning one, was resorted to, without noiice and was not at the call of the association' and was, therefore, in breach of cl. 5 .''

In this Judgment rderence was also made 1o an earlier unreported decision of this Court in Tata Engineering & Lacomotlve Co. Ltd.

v. C. B. Mittere) in supp<>q of the conclusion arrived at therein.

In our opinion, it is difficult to hold that in the circumstances o( the present case the assurance stated to have been given by-the workmen to the Regional Labour Commissioner that they (the workmen) would see that they do not resort to sU, ch strikes in .future and that they adopt all constitutional means to get their grj¢vances G redressed amount to a term of the settlement, breach of which wquld

attract Cl. (c) of s. 23 of the Act. In order to be bit by s. 23 (c) the strike must be ill breach of contract in respect of a matter

covered by the settlement which is in operation at the time of the strike. Tb.e &Ssurance referred to in the Regiomil Labour Gommissioner's report neither amounts to a contract nor is it a matter covered by -the aforesaid settlerrient.

H This cotention, therefore. must fail.

(1) [1970} I S.C.R. 304.

(2) C.A. No. 633 of i%3, d/2.4.1964.

The appellant's learned counsel next submitt,.ed that the present A case cleany fell within s. 23 (b). The High Court decided this point against the appellant principally on the ground that during the pepdency Gf reference No. 27 of 1960 the appellant had applied before Shri Palit in August, 1960 to be discharged from the proceeding5 on the ground that the dispute penling in that Tribual did [lOt concern the appellant's cJllieries.

After the application n the appellant took no part in the proceedings and as appeared 1rom the judgment of the appellate authority the workmen also had not taken any steps in the said refereqce.. The appellant and the workmen having not taken part in the reference pending before Shri Palit the High Court felt that they , were •U:it parties to those proceedings though in the opinion of the High Court the appellant c and the workmen were bound by the decision in those proceedings.

On this reasoning s. 23 ( o) was also ruled out by the High Court and the writ petition was dismissed on the ground that there was no error appare.nt on the face of the record because there was no statutory provisicm dealing with the circumstances like the preseriL Reference was made t.ly the High Ccurt to a decision cl this Court in Hochtief Gammon v. lndustrial Tribunal, Bhubaneshwar(l) a D case in which s. 18 (3) (b) of the Act had come up for construction.

But that decision was considered to be unhelpfdul became, accordihng

C::: .. '.~ to the High Court. Shri Palit's Tribunal ha not summoned t e (;~' ahppella 1 n 1 t undecr s 1 . 1 .t8.( 3 )C(b) but had called tfhehappelnt 1 becase ll t e Ba arpur o 1enes ompany was one o t e ongma parttes -.~ to the award known as M:>jumdar Award.

The High Court, how- E ever, inferred from the folbwing observation in the Palit Award:

"In an omnibu~ or industrywise reference it is not neces£ary that the dispute must relate to each one of them or the cause cl action must exist in all cases."

that there was no dsoute between the appellant and its workmen l pending before Shri Palit's Tribunal.

This view of the High Court was seriously assailed tefore us by Shri Phadke.

According to him the reference under s .. 36A of the Act requiring consideration of any provision of an eadier award or settlemt:ltlt J1.1Ust relate back to the earlier reference culminating in the award or settlement and, therefore,· if the appellant was a G party to the original reference which resulted in the 'Majumdar Award', then the appellant must necessarily be.considered to be a party to the later reference of which Shti Ph-lit was seized. And if that be so, theu, the appellant, in Shri Phadke's submission;· must be considered to be a party to the reference under s. 36f\.~ notWith~ standing its desire not to take part.m those procee4ings or, even an Hi exprec; s anplication bY it to the Tribunalfor.p, enni, ssion .to withd(aw therefro.m..

(l) [l964J 7 S.C.ll ~96.

BALLARPUa. COLLIERIES v. PRESIDING OFFICER (Dua, J.) 81_3

A In our view, there is force in Shri Phadke's submission and the High Court was wrong in holding that s. 23 (b) is inapplicable to the present case. Section 3 6A provides :

"36A Power to remove difficulties :

( 1) If in the opinion of the appropriate Government, .J any difficulty or doubt .arises as to the ipterpretation of any provision of an award or settlement, it may refer the question to such Iaoour'Court, Tribunal or National Tribunal as it may think fit.

(2) The Labour Court, Tribunal or National Tribunal c to which such question is referred shall, after giving the parties an opportunity of being heard.,

decide such question and its decision shall be .final and binding on all such parties."

Now, quite clearly proceedings for removing difficulties or doubts

arising as to the interpretation of any provision of the Majumdar D Award must be construed to have the effect of reviving those earlier proceedings for the limited purpose of considering the removal of such difficulty or doubt. It is only by virtually reopelling the proceedings of the earlier reference that the purpose and object of correct interpretation of that Award and of the removal of difficulties or doubts arising therefrom could ble achieved. The legal E effect of reference under s. 36 A must, therefore, in our opinion be to .reopen the earlier reference procedings which terminated in the MajQmdar Award, though only for the limited purpose of the interpretation of the provisions of that Award in respect of such difficulties or doubtS as required removal. Now, it that be the

sco~ of s. 36A ?~ the Act then thre can be lil!ledoubt !hat all parties to the ongmal reference which resulted m the MaJumdar F Award must as a matter of law be deemed necesSarily to be parties to the proceedings to t, he reference under s. 36A •as well.

This seems to us to be implicit in the very scheme and bt of this section as would be cleat from the fact that the decision of the question referred under this section has been rendered final and binding on all parties who have been given an opportunity of being G heard. This does not contemplate con.sideration of the question whether any party was in fact feeling interested in the particular subject matter of difficulty or doubt. In this connection it has to be borne in mind that proceedings or industrial adjudicatin are not considered as proceedings purely between two private parties having no impact on the industry as such. Such proceedings involve larger 'II publlc interest in which the industry as such (including the em~

ployer.and the labour) is vitally interested. The scheme of the law of industrial adjudication designed to promote industrlal peace

and harmony so as to increase production and help the1 groWth and 6-L1061Sup.CI

. al conomY has to considered in the ooc~. A progress of na.tiO.n tiional set up according to '!'hich the tatt !)as gc~ of our cons d effectively protect a stal order m which to stnve to scc.ure a:l political justice must info, rm all institutions social.. en:lfe•r the material resources of the community are so

o~ ntton best to subserve the cOIWJ?-OD. $ood . The appellant disbut~ :hcrelore, by merely expressmg tts. des.ue even. if that 1 ir! fs0 e ressed by presenting a formal applicauon to WI!hdraw

the xp eedings cease to be a party to those procee<hngs so fa avofcfilie legal' consequences which, according to legisltive d t flow by reason of the pendency of those proceedmgs. mten men' . . L-- fo e be h l.d to h The appellant, in our op!DlOD, must wge r e _ ave continued to remain party to th~ reerence fore the nbunat C presided over by Shri Palit, its a.pplicauoa !O Withaw and 1ts nonparticipation in tbe proceedings notw1tbstanding.

Even :r; onparticipation of workmen would not change the legal posttton.

Once it is held that the appellant was a party to those proceedings then there can be no difficulty in holding that s. 23(b) would be attracted to those proceecllogs and if that sub...section is attracted then obviously the strike has to be held to be illegal. The refer- D enre (No. 27 ot 1960) it may he recalled, was made in May, 1960, and the Award was published on November 22, 1960 : the work men went on strike on October 4, 1960 which was clearly during the pendency of those proceedings..

We are, therefore, of the view that the fmpugood strike was ille~ and the High Court, saking respect, was not right i.n holding to the contrary. The appeal I IS accordingly allov; od and reversing the judgment of the High Court we q~USh the order of the Central Government Industrial Tribunal dated April 16, 1960 as ilio tho order of the Regional Labour ~r (Central) Bombay dated November t9, 1960 bich bad held the c; trlke of the workmen not to be illegal. venom~ aU these orders w~ bold th& the workmen's strike Wll! illegal~ ia violation ot ' 23-(b) o( the Act. The a!'Ptat b ' :crordlllgiy ail~ and the workmen's strike held illegal. [t is i.onfnate d!a~ the respondeat! aro not rtpresent~ before us th . ptto ?f SCI'Vl<:e and we, therefore, did not hav~ the benefit of

r,;,::~ ~~~re i& no Jef'retatlon on behal! of the :e WI no orde~ u f.() ts .

S.C.

G Appeal aiiOVffd.

BALLARPUR COLLIERIES CO

THE PRESIDING OFFICER, C.G.I.T. DHANBAD AND ANR

March 14, 1972

I. D. DuA, JJ.

Industrial Disputes Act, 1947

S. 23(b)

S. 23(c)

S. 23

S. 23

Bombay

s. 36A

Industrial Disputes Act, 1947

Palit

October, 4, 1960

October 31, 1960

s. 23

s. 23

UI trial Dlsoutes Act

s. 23(c)

M. N. Phadke

Bhuvnesh Kumar_i

Dua

Majumdar

Central Government

s. 36A

Industrial Disputes Act

G. Palit

Section 3

G .. Palit

Ballarpu!' Collienes Co.

India

November 22, 1960

Ballarpur

section 18

Industrial Disputes Act, 1947

October 31; 1960

Patna High Court

Phadke

ss. 23

Haldulk:ar

Chanda

Zallaram

S. V. Kanade

Jamnadas Daga

Mines Act

s. 23(c)

s. 23

section 1

Phadke

cl. 5

s. 2

s. 18

cl. 5

s. 23

s. 23

Regiomil Labour Gommissioner

s. 23

s. 23

s. 18

s 1

s. 36

s. 23

Section 3

s. 36

s. 36A

s. 36A

s. 23(b)

October 4, 1960

Central Government Industrial Tribunal