Nagalinga Nadar v. B. K. Nayar — 1951 DIGILAW 2 (KER)

Judgment :- 1. This is an application on behalf of the Firm of M.M. Nagalinga Nadar Sons, Quilon (hereinafter referred to as the petitioners) through one of their partners under Art. 226 of the Constitution, asking this court to call up the records in Industrial Dispute No. 8 of 1950 on the file of the Industrial Tribunal, Alleppey and to grant the following reliefs: (a) To grant a declaration that there is or can be, no "Industrial Dispute" within the meaning of the Industrial Disputes Act, central or local, as between the petitioner and his coolies and to restrain Travancore-Cochin State (respondent No. 3) by injunction from any interference in their mutual relationship under and by virtue of the Industrial Disputes Act; (b) To issue a writ in the nature of certiorari and prohibition quashing the proceedings of the said Tribunal (respondent No. 2); (c) To issue a writ in the nature of mandamus allowing the representation of the petitioner in the proceedings before the Tribunal through its legal adviser and to give such further or other directions as the circumstances of the case require. The Ambalapuzha Taluq Head Load Conveyance Worker's Union, Alleppey is Respondent No.1 to this application and the above reliefs are claimed as against all the three respondents. 2. The petitioners are doing business in the purchase and sale of cocoanut oil with their head office at Quilon and branches at Alleppey and other places. Purchases are made at Alleppey while the sales take place elsewhere. Members of Respondent 1's Union are engaged as manual labourers in taking delivery and in giving delivery of oil. Differences however arose between the parties concerning a reduction made by the petitioners of the existing rates of wages for different items of work the labour had to at tend to and with respect to a claim for bonus put forward by the latter. Negotiations for settlement proved unsuccessful and Respondent 1's Union made a representation to the Assistant Labour Commissioner, Alleppey for conciliation of the dispute. The latter's efforts for conciliation also failed. He therefore reported to Government for referring the dispute to an Industrial Tribunal for adjudication. Negotiations for settlement proved unsuccessful and Respondent 1's Union made a representation to the Assistant Labour Commissioner, Alleppey for conciliation of the dispute. The latter's efforts for conciliation also failed. He therefore reported to Government for referring the dispute to an Industrial Tribunal for adjudication. In exercise of the powers vested in them under S.10 of the Industrial Disputes Act the Government referred the matter to the 2nd Respondent - Tribunal at Alleppey by their order dated 31.7.1950 and the said order was notified in the Gazette of even date. The 2nd respondent taking cognizance of the dispute issued notices to the parties and pursuant to the notice served on the petitioners, they raised a preliminary objection through an Advocate that the reference was ultra vires the Government in as much as their trade or business did not amount to an "industry" within the meaning of the Industrial Disputes Act and the persons employed in their trade for manual labour were not "workmen" within the meaning of the said Act. According to the petitioners there was therefore no "industrial dispute" which could be made the subject of a reference to a Tribunal constituted under the Industrial Disputes Act and the reference did not confer jurisdiction on the 2nd respondent Tribunal to pass an award with reference to the controversies between the parties before it. Respondent 1 raised an objection that the Industrial Disputes Act, 1947 (Central Act XIV if 1947), under which Government made the reference did not entitle a party to a proceeding before a Tribunal being represented by a legal Practitioner except with the consent of the other parties to the proceeding and with the leave of the Tribunal. These objections gave rise to two orders by the Tribunal, one on 5.9.1950 upholding Respondent 1's objection that no Advocate can be permitted to appear except on the terms mentioned above and the other, dated 20.9.1950 overruling the preliminary objection raised by the petitioners. The Tribunal held that the dispute fell within the purview of the Industrial Disputes Act, and that the Tribunal was competent to adjudicate upon it. The latter order was soon followed by the present petition asking for the reliefs set forth in the opening paragraph of this order. An interim stay of the proceeding before the Tribunal was asked for and granted. The latter order was soon followed by the present petition asking for the reliefs set forth in the opening paragraph of this order. An interim stay of the proceeding before the Tribunal was asked for and granted. That stay has since been made to operate till the disposal of this petition. 3. The claim for relief (a) involves a challenge to Government's authority to make the reference and to the correctness of the Tribunal's order overruling the petitioner's preliminary objection and relief (c) relates to the order prohibiting representation of the petitioners before the Tribunal through an Advocate. The prayer covered by relief (b) raises several interesting questions and in claiming that relief the petitioners even question Government's power to make the reference under the Central Act. Alternatively it was urged that the reference was to a Tribunal which had long before ceased to exist. At the hearing before me Mr. N. Varadaraja Iyengar, the learned Counsel for the petitioners, formulated as many as five propositions for consideration by the Court. To understand how the more important among them arise here and for a proper appreciation of the arguments concerning them it is first necessary to refer to the history of the legislation regarding industrial disputes in the State and to the Constitution of the 2nd respondent Tribunal. The case comes from the Travancore area and no reference need therefore be made to what the law in the Cochin are was before the formation of the Travancore-Cochin State. 4. The Travancore Industrial Disputes Act, VI of 1124 was the law in force in the State of Travancore when the two States were integrated. The Travancore-Cochin Industrial Disputes Ordinance 1950 (Ordinance No. V of 1950) promulgated by His Highness The Raj Pramukh on the 11th February 1950 repealed the said Act as also the Cochin Legislations on the subject. The said Ordinance is practically a vertbatim reproduction of the (Indian) Industrial Disputes Act, XIV of 1947. In turn the Ordinance gave place to the Travancore-Cochin Industrial Disputes Act, XVI of 1950 which was enacted by the Travancore-Cochin Legislature on 16.4.1950. Like the Ordinance which it replaced that Act also is practically in the same terms as Central Act XIV of 1947. In turn the Ordinance gave place to the Travancore-Cochin Industrial Disputes Act, XVI of 1950 which was enacted by the Travancore-Cochin Legislature on 16.4.1950. Like the Ordinance which it replaced that Act also is practically in the same terms as Central Act XIV of 1947. S.36 of the Travancore-Cochin Act relating to "Recovery of money due from an employer under settlement, awards etc." and S.41 dealing with "Repeal and saving would seem to by the only innovations or additions upon the Central Act. The next piece of legislation to be referred to is one enacted by the Indian Parliament amending and extending the scope of the Industrial Disputes Act, XIV of 1947. By the schedule appended to the Industrial Disputes (Appellate Tribunal) Act, 1950 (Act XLVIII of 1950) the Indian Parliament inter alia extended the operation of Central Act XIV of 1947 to the whole of India except the State of Jammu and Kashmir. This was on 20.5.1950 and the Travancore-Cochin Government duly published the new Act (Act XLVIII of 1950) in their Gazette bearing the date 31.7.1950. This brings the legislative history up to date. 5. Now to turn to the Constitution of the Tribunal, the Industrial Tribunal, Alleppey was constituted on 4th March 1950 (vide Travancore-Cochin Gazette dated 13.3.1950 Part I, page 205), when Ordinance V of 1950 was in force. S.41(2) of the Travancore-Cochin Industrial Disputes Act XVI of 1950 expressly enacted that "notwithstanding the expiry of the Travancore-Cochin Industrial Disputes Ordinance, 1950 (V of 1950) all orders made, action taken, arbitration, conciliation or adjudication proceedings or other legal proceedings commenced or things done in the exercise of any power conferred by or under the said Ordinance shall, for all purposes, be deemed to have been made, taken, commenced or done in the exercise of the power conferred by or under this Act; and any arbitration conciliation or adjudication proceedings or other legal proceedings pending immediately prior to the commencement of this Act may be continued or enforced as if this Act had commenced on the 11th day of February 1950". The Tribunal hence became competent to function as such so long as the Travancore-Cochin Industrial Disputes Act, XVI, of 1950 continued to govern industrial disputes in the State or until its appointment was otherwise terminated. 6. I shall now proceed to set out the propositions the petitioners' learned Counsel propounded as arising for the court's decision. The Tribunal hence became competent to function as such so long as the Travancore-Cochin Industrial Disputes Act, XVI, of 1950 continued to govern industrial disputes in the State or until its appointment was otherwise terminated. 6. I shall now proceed to set out the propositions the petitioners' learned Counsel propounded as arising for the court's decision. The first proposition was that notwithstanding the extended application given to Central Act XIV of 1947 to the States in Part B of the First Schedule of the Constitution. The Travancore-Cochin Industrial Disputes Act, XVI of 1950 continues to be the law governing industrial disputes in the State except to the extent rendered void by Art. 264 of the Constitution by reason of inconsistency and the Travancore-Cochin Government was therefore incompetent to make a reference under S.10 of the Central Act. According to Mr. Varadaraja Iyengar supercession of the State by the Central law is only to the limited extent of the conflict and not of the whole Act. The point of the argument was the reference Government made in the instant case to the 2nd respondent Tribunal under S.10 of the Central Act was unauthorised and that it did not constitute a valid reference. An alternative proposition propounded was that in case the Central Act be held to be the governing law, the authority of 2nd respondent Tribunal to act as an Industrial Tribunal had ceased to exist when the Indian Parliament extended the operation of Act XIV of 1947 to Part B States as well and that the reference was therefore to a non-existing Tribunal. It was pointed out that the Tribunal contemplated by the Central Act meant an Industrial Tribunal constituted under that Act vide S.2(r). The argument was that in the absence of an express transitory provision like that contained in S.41 (2) of the Travancore-Cochin Industrial Disputes Act XVI of 1950 the 2nd respondent Tribunal cannot function as an Industrial Tribunal without fresh appointment. 7. Besides these two propositions, as mentioned earlier Mr. Varadaraja Iyengar submitted for the Court's decision three others as well. It is convenient to refer to them, here before commencing the discussions on the prepositions already set out. The third among Mr. Varadaraja Iyengar's propositions was that there was no 'industrial dispute' within the meaning of the Industrial Disputes Act and the reference made by Government was therefore ultra vires their powers. It is convenient to refer to them, here before commencing the discussions on the prepositions already set out. The third among Mr. Varadaraja Iyengar's propositions was that there was no 'industrial dispute' within the meaning of the Industrial Disputes Act and the reference made by Government was therefore ultra vires their powers. According to the petitioners such a reference could give no jurisdiction to the Tribunal to hold an enquiry or to pass any award. The fourth proposition was that assuming Government have the authority, the present reference is invalid as Government made it without giving a hearing to the petitioners. According to their learned Counsel the order of reference made in disregard of the rules of natural justice must be treated as void and the Court should not allow the 2nd respondent Tribunal to proceed with the enquiry initiated on the strength of such an order. The fifth and the last proposition was that the Tribunal's order disallowing representation to the petitioners by a legal practitioner was opposed to the fundamental rights guaranteed by the Constitution under ArtS.14 and 19(1)(g) thereof. 8. The learned Advocate General who represented before me respondents 2 and 3 raised a preliminary objection that as the Industrial Disputes (Appellate Tribunal) Act, 1950 gave a right of appeal before the Appellate Tribunal for a party aggrieved by any award or decision of an Industrial Tribunal the present petition was incompetent. The question whether the orders passed by the 2nd respondent Tribunal in disposing of the objections raised by the parties are appealable under S.7 of the Industrial Disputes (Appellate Tribunal) Act, 1950 is a point which is certainly worth considering, particularly in view of the very wide definition we have in S.2 (b) of the Industrial Disputes Act, 1947 for the expression "award". But a decision regarding it in favour of the Advocate General's contention would not enable me to dismiss this petition since a decision in favour of the petitioners on propositions 1, 2 or 4 above would entitle them to the relief they ask for in the petition to have the proceeding before the 2nd respondent Tribunal quashed. I shall therefore now proceed to consider the propositions submitted for my decision by the petitioner's learned Counsel on their merits, postponing for the moment an expression of my views on the preliminary objection raised by the Advocate General. I shall therefore now proceed to consider the propositions submitted for my decision by the petitioner's learned Counsel on their merits, postponing for the moment an expression of my views on the preliminary objection raised by the Advocate General. The first question to be considered is which Act governs industrial disputes in the State; whether Central Act XIV of 1947 as amended by Act XLVIII of 1950 or the Travancore-Cochin Industrial Disputes Act, XVI of 1950. The answer to it must be found on the true construction of Art. 254 of the Constitution. The matter of "Industrial and Labour Disputes" occur in List 3., Concurrent list in the Seventh Schedule of the Constitution. Vide entry 22 in the Concurrent List. Art. 254 so far as it is relevant for our purpose is in these terms: "If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Cl. (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void". While the learned Advocate General contended that the Central Act replaced or kept in abeyance the State law, Mr. Varadaraja Iyengar's argument was that in the absence of positive repugnancy between the provisions of the Central and the State laws no question of predominance of the central over the state law would arise and even when there is such repugnance the state law has to yield only pro tanto, to the extent of the repugnance. According to the latter for the state law to be replaced entirely it is not sufficient to establish that the Central law covers the same field as traversed by the state law; but the learned Advocate General would have it that when the central law covers the same field as that covered by the state law, the state law would remain as dead letter so long as central law remains in force. Art. 251 of the Constitution was referred to in this context. Art. 251 of the Constitution was referred to in this context. The controversy pertains to a branch of law on which much legal learning has been spent and the best and the most convenient way to answer the point is by referring to decided cases. The question had arisen in at least two of the Indian High Courts when the Government of India Act, 1935 was in force. Art. 254(1) of the Constitution is in substance in terms of S.107(1) of the said Act and it would be helpful to reproduce the same here. "If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the concurrent Legislative List, then, subject to the provisions of this section, the federal law, whether passed before or after the Provincial law, or as the case may be, the existing Indian law, shall prevail and the provincial law shall, to the extent of the repugnancy, be void." 9. Before proceeding to refer to the case law bearing on the subject it must here be stated that at the Bar it was agreed that the two acts - the Central and the State - cover the same field and that repugnancy is only with respect to the provisions regarding representation of parties in a proceeding before authorities constituted under the Act. As the State Act was, as mentioned earlier, practically a verbatim reproduction of the Central Act the provisions regarding representation also remained the same in both before the Central Act, XIV of 1947 was amended by Act XLVIII of 1950. The difference between the two Acts as they stand now arose on account of the amending legislation. For the present it is sufficient to notice that there is now repugnancy between the provisions of the Acts regarding the right of representation, in a proceeding under the Act. Of the several points of differences on this matter that regarding representation by a legal practitioner is particularly relevant for another branch of the case and that difference will be noticed when that matter is discussed. Earlier I pointed out SS.36 and 41 of the Travancore-Cochin Industrial Disputes Act, XVI of 1950 have no counterpart for them in the Central Act. 10. Earlier I pointed out SS.36 and 41 of the Travancore-Cochin Industrial Disputes Act, XVI of 1950 have no counterpart for them in the Central Act. 10. The first case that I would refer to on this branch of the case is a decision by Narasing Rao, J. as he then was, (R.C. Mitter, J. concurring) reported in Stewart v. Brojendra Kishore, A.I.R. 1939 Cal. 628. There the question arose whether certain provisions of the Bengal Court of Wards Act, 1879 as amended by the Assam Court of Wards Amendment (1937) were repugnant to the "existing Indian law" falling in concurrent Legislative List and hence void. It is unnecessary to enter into the further details of that case but what the learned judge has said on the abstract question of law may usefully be quoted here as an authoritative exposition of the law I have to deal with here. In discussing the meaning of "repugnancy" the learned judge states at page 633 of the report as follows: "The question of repugnancy or inconsistency has arisen and been considered in several Australian Cases, with reference to S.109 Commonwealth of Australia Constitution Act which provides that when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail and the former shall to the extent of the inconsistency be invalid. (A summary of the cases will be found in Wynes's Legislative and Executive Powers in Australia; and in Street on Ultra Vires). In the earlier cases (e.g. 8 C.L.R. 465;10 C.L.R. 266; 22 C.L.R. 1, the test of inconsistency adopted was whether it was possible to obey both the competing laws. But in the case in 37 C.L.R. 466, where the conflict was between an award of the Conciliation Court providing for a working week of 48 hours and a New South Wales Act providing for payment of overtime for any work in excess of 44 hours it was recognised that the test was too narrow. But in the case in 37 C.L.R. 466, where the conflict was between an award of the Conciliation Court providing for a working week of 48 hours and a New South Wales Act providing for payment of overtime for any work in excess of 44 hours it was recognised that the test was too narrow. Isaacs, J. observed that two statutes imposing respectively twenty and twenty-five lashes for robbery might in a sense be both obeyed by infliction of forty-five lashes and he therefore propounded a more satisfactory test thus: "If however a competent Legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another Legislature assumes to enter to any extent upon the same field: (page 490 loc. cit) It is unnecessary to mention all the subsequent Australian cases where this test was adopted; we content ourselves with citing only (1930) 43 C.L.R. 472 where Dixon, J. observed that inconsistency depends on the intention of the paramount Legislature to express by its enactment completely, exhaustively, or exclusively what shall be the law governing the particular conduct of the matter to which its intention is directed. When a Federal Statute discloses such an intention it is inconsistent with it for the law of a State to govern the same conduct or matter. In Canada, of course, apart from a few exceptional provisions, such as those relating to agriculture and immigration, the Constitution Act itself does not confer any concurrent powers of legislation. There are only two legislative lists, but it has been settled by a long line of Privy Council decisions that there can be a domain in which provincial and dominion legislation may overlap, in which case neither legislation will be ultra vires, if the field is clear, but that if the field is not clear and in such a domain the two legislations meet, then the dominion legislation must prevail (1907) AC. 65. Once again therefore we are led to the same test as that propounded by Isaacs,J.: "Is the field completely occupied by the dominant Legislature? 65. Once again therefore we are led to the same test as that propounded by Isaacs,J.: "Is the field completely occupied by the dominant Legislature? In England, the question of repugnancy has been considered chiefly in relation to bye-laws and the general law of the land, a bye-law being treated as ultra vires if it is repugnant to the general law." The learned judge then proceeds to refer to English decisions dealing with the question and at page 634 concludes the discussion as follows: "The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Isaacs, J. in the Australian 44 hour case (37 C.L.R. 466). If the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law." This case was followed by a Division Bench of the Lahore High Court in Ahamed Khan v. Emperor - A.I.R. 1948 Lah.120. At page 123 Bhandari, J., who pronounced the leading judgment said as follows: "The expression "repugnant" has not been defined in the statute. But it has come up for consideration in a large number of cases in Canada and Australia. These cases were reviewed with care by Narasinga Rau, J. in Stewart v. Brojendra Kishore - A.I.R. 1939 Cal. 628. He came to the conclusion that it is too narrow a test to say that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says 'do' and the other 'don't'. There may well be cases of repugnancy where both laws say don't but in different ways. The true test is that if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore, inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law." 11. The extract from the judgment in A.I.R. 1939 Cal. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law." 11. The extract from the judgment in A.I.R. 1939 Cal. 628 clearly shows that in arriving at the conclusion they came to, the learned judges in that case drew inspiration freely from Australian cases dealing with the interpretation of S.109 of the Australian Constitution. A paraphrase of the said section finds a place in the extract and as I propose to refer to two later Australian cases I think it advantageous to reproduce S.109 itself here. It is as follows: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. One of the Australian cases referred to in A.I.R. 1939 Cal. 628 is that reported in (1930) 43 C.L.R. 472. In a subsequent case reported as Victoria v. The Commonwealth (1937) 58 C.L.R. 618 Dixon, J., a passage from whose judgment in the earlier case is quoted in the Calcutta decision formulated the test of inconsistency in S.109 of the Australian Constitution as follows: "I attempted in Exparte Mclean (1930) 43 C.L.R. 483, to explain my conception of the principle upon which the decision had proceeded, particularly those given upon the Commonwealth Conciliation and Arbitration Act, and there will be found all that is required for the purpose now in hand. Substantially, it amounts to this. When a State law if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent." (see p. 630) The other Australian case I would refer is Carter v. Egg and Egg Pulp Marketing Board (Vict) (1942-43) 66 C.L.R. 567. At pp. At pp. 573 and 574 Latham, C.J., enunciated the test of inconsistency in these words: "Federal and State laws, each within the powers of the respective enacting legislatures, may be inconsistent to terms in the sense that there is a direct conflict between them so that it is impossible to give effect to both laws. A clear example of such inconsistency is to be found in R.v. Bishane Licensing Court, Exparte Daniel (1920) 28 C.L.R. 23. A State statute provided that a State vote on Liquor Licensing should be taken on the same day as that fixed for a poll at an election for the senate of the Commonwealth. A Commonwealth statute provided that no vote of electors of a State should be taken under the law of a State on any day appointed for an election of the Senate. There was a direct conflict between the two Statutes and the State Law was therefore inoperative. But, when there is no inconsistency in the actual terms of the competing statutes, the Commonwealth Parliament may have shown an intention to make its legislation upon a particular subject exhaustive, so as to exclude any State legislation upon that subject. In such a case any State law upon the subject will be inoperative by reason of S.109 (Clyde Engineering Co. Ltd. v. Cowburn - (1926) 37 C.L.R. 466; Huma v. Palmar (1926) 38 C.L.R. 441. Where State legislation was held to be invalid under S.109; Stock Motor Ploughs Ltd. v. Porayth (1932) 48 C.L.R. 128, where State legislation was held to be valid, there being no intention of the Commonwealth Parliament to exclude State laws upon certain subjects). The exercise of a power conferred by a Federal statute may result in State Legislation becoming inoperative. Thus if a State law inconsistent with an award of the Commonwealth Conciliation and Arbitration Court either because there is a direct conflict or because the award is intended to be a complete and exhaustive code in relation to particular matters, the State law is inoperative pro tanto: "the State Legislation must give way" (Engineers' Case (1920) 28 C.L.R. 129 at p. 154; Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 C.L.R. 466; H.V. Makey Pty Ltd. v. Hunt (1926) 38 C.L.R. 308; Exparte McLean (1930) 43 C.L.R. 472." 12. Ltd. v. Cowburn (1926) 37 C.L.R. 466; H.V. Makey Pty Ltd. v. Hunt (1926) 38 C.L.R. 308; Exparte McLean (1930) 43 C.L.R. 472." 12. With the principles set out in the above decisions before me the conclusion would seem to be inevitable that the Advocate General's argument that the Central Act has replaced the State law has to be accepted and I decide accordingly. The inference would seem to me fairly clear that the Central Parliament intended to make its legislation upon the subject of industrial disputes exhaustive so as to exclude any State legislation upon that subject. The result is the Central Act prevails and the reference made by Government in the case in hand of the dispute for arbitration is neither unauthorised nor invalid. This disposes of the first ground raised before me. 13. Assuming for a moment that Mr. Varadaraja Iyengar's argument that the State law would stand replaced only to the extent of positive repugnance I am not able to appreciate how that would advance his clients' case any further with reference to this point. S.10 of the Central Act is word for word the same as S.10 of Act XVI of 1950 (Travancore-Cochin) and the fact the Government Notification cites a wrong act as that under which they derive authority would not render the Notification invalid if Government have the power vested in them otherwise. The very argument that the reference should have been made under S.10 of the latter Act conceded that Government have that power and Mr. Varadaraja Iyengar did not dispute that such a mistake would not materially affect the validity of the reference and that the mistake whether clerical error or otherwise is one Government could rectify at any time. 14. The next question is whether Government made the reference to a non-existing Tribunal or in other words, to a Tribunal which had ceased to have authority to function as such, because the Act under which it was constituted had ceased to be in force. This argument is founded on the rule "that when an Act of Parliament is 'repealed' it must be construed (except as to transactions passed and closed) as if it had never existed." As already mentioned the Central Act XIV of 1947 defines a "Tribunal as an Industrial Tribunal appointed under that Act. This argument is founded on the rule "that when an Act of Parliament is 'repealed' it must be construed (except as to transactions passed and closed) as if it had never existed." As already mentioned the Central Act XIV of 1947 defines a "Tribunal as an Industrial Tribunal appointed under that Act. Admittedly there is no notification published under S.7 of that Act constituting the 2nd respondent Tribunal and on these materials Mr. Varadaraja Iyengar argued that without such fresh constitution 2nd respondent has no authority at all to function as an Industrial Tribunal. The Advocate General sought to counter this by contending that the Government order making the reference is on its true construction a composite order under SS.7 and 10 of the Industrial Disputes Act, 1947. It was argued that it is both an order of appointment of a Tribunal and an order of reference to the said Tribunal. To test the soundness of this argument it is necessary to examine the language and contents of the order. The order reads thus: "Whereas an Industrial dispute has arisen between Sri M.M. Nagalinga Nadar Oil Merchant, Alleppey and the workmen employed in his shop at Alleppey represented by the Ambalapuzha Taluk Head Load Conveyance Workers' Union, Alleppey in respect of matters mentioned in the annexure to this order, And, whereas, in the opinion of Government it is necessary to refer the said industrial dispute for adjudication. Now, therefore, in exercise of the powers conferred by S.10(1)(c) of the Industrial Disputes Act 1947 (Central Act XIV of 1947) Government hereby direct that the said Industrial Tribunal, Alleppey having the place of sitting at Alleppey. Annexure Whether the employer was justified in reducing the wage rates of the workers on 16.3.1948? If not to what relief are the workers entitled? Whether the demands of the workers for bonus is just and reasonable? If so at what rate are they to be paid? (By order of His Highness the Raj Pramukh) V.K. Velayudhan, Secretary to Government Government Secretariat, Development Department, Labour Section, Trivandrum, 31st July 1950. I am aware of instances where Courts have construed orders passed by Government under the Industrial Disputes Act as composite orders falling both under SS.7 and 10. See Birla Brothers Ltd. Modak - I.L.R. 1948 Cal. 200 and Indian Paper Pulp Co. v. P.P. Workers' v. Union A.I.R. 1949 F.C. 148. I am aware of instances where Courts have construed orders passed by Government under the Industrial Disputes Act as composite orders falling both under SS.7 and 10. See Birla Brothers Ltd. Modak - I.L.R. 1948 Cal. 200 and Indian Paper Pulp Co. v. P.P. Workers' v. Union A.I.R. 1949 F.C. 148. In the first case on the language and contents of the reference order it was held that the Tribunal created thereunder was directed to adjudicate upon the particular dispute. There there was reference only to S.7 which empowers the Constitution of Industrial Tribunals and no reference to S.10 providing for references. In the latter case the order made mention of both the sections and among other things, the learned Chief Justice of India took that as a circumstance indicative of the fact that Government intended by their order both to constitute a Tribunal and to refer the particular dispute to that Tribunal. But reading the present order quoted above as a whole and giving the words employed therein their natural and ordinary meaning I am unable to accede to the learned Advocate General's argument that it is a composite order similar to the orders concerned in the two cases cited. It is an order, pure and simple, referring the dispute to the Industrial Tribunal, Alleppey under S.10 of the Act. The order assumed the existence of a Tribunal sitting at Alleppey. Nothing would seem to have been further from Government's intention than to constitute afresh thereunder a Tribunal or to revive a defunct one. 15. The question therefore remains whether the 2nd respondent Tribunal was a live one when the reference I am concerned with here was made to it on 31.7.1950. During the course of the arguments under this head reference was made to S.23 of the Travancore Cochin Interpretation and General Clauses Act, VII of 1125 corresponding to S.24 of the General Clause Act, X of 1897. During the course of the arguments under this head reference was made to S.23 of the Travancore Cochin Interpretation and General Clauses Act, VII of 1125 corresponding to S.24 of the General Clause Act, X of 1897. S.23 of Act VII of 1125 runs thus: "Where any Act is repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted." Art. 367 of the Constitution provides that unless the context otherwise requires the General Clauses Act, 1897, shall, subject to any adoption or modification that may be made therein under Art. 372 apply for the interpretation of the Constitution as it applies for the interpretation an act of the Legislature of the Dominion of India. It is clear if the provision of the General Clauses Act referred to above can be made applicable not only to a case of express repeal and re-enactment but also to a case of repeal by implication by reason of repugnance or conflict, the 2nd respondent Tribunal would continue to be a valid functionary even after the Central Act began to govern industrial disputes in the State. Mr. Varadaraja Iyengar contended that the section can refer only to a case of express repeal and re-enactment and not to cases where the provisions of the Constitution render a particular law void or inoperative. In as much as the entry relating to Industrial and Labour disputes finds its place in the Concurrent List the Central Parliament has of course authority to make laws for the States as well with respect to matters covered by that entry. But whether the extension of a Central Act to the States in Part B of the First Schedule can have the effect of repeal and re-enactment within the meaning of the concerned section of the General Clauses Act is the point for decision. An objection similar to the one Mr. But whether the extension of a Central Act to the States in Part B of the First Schedule can have the effect of repeal and re-enactment within the meaning of the concerned section of the General Clauses Act is the point for decision. An objection similar to the one Mr. Varadaraja Iyengar raised before me regarding the applicability of S.24 of the General Clauses Act, 1879 (that it would not apply to a case covered by Art. 254 of the Constitution was raised before a Full Bench of the Bombay High Court regarding the applicability of S.6 of the said Act (our S.4). See In re Keshay Madav Menon (1950) - 58 Born. L.R. 640. It was urged that that section would not apply to laws which have become void as a result of their being inconsistent with the provisions of Part III of the Constitution. S.6 of the General Clauses Act deals with the "effect of repeal" of an enactment and saves pending proceedings, rights acquired, liabilities incurred etc. The question before the Full Bench was whether the provision of that section would apply to the laws becoming void as contravening Fundamental Rights. A prosecution under S.18(1) of the Indian Press (Emergency Powers) Act 1931 was launched before the Constitution came into force and after that even it was contended the prosecution cannot be further proceeded with as the particular provision of the Press Act was declared void under Art. 13(1) of the Constitution. The Full Bench repelled the contention and held that S.6 of the General Clauses Act, 1897 would save a proceeding which was pending prior to the commencement of the Constitution notwithstanding the fact that the Press Act itself or a part of it might become void as a result of the enactment of the Constitution and that S.6 applies not only to Acts which have been repealed but also to those laws which have become void as a result of their being inconsistent with the provisions of Part III of the Constitution. The prosecution was hence allowed to proceed. The following passage from the judgment of Chagla, C.J., who delivered the judgment on behalf of the Full Bench, occurring on page 543 of the report would be very apposite for our present purpose. The prosecution was hence allowed to proceed. The following passage from the judgment of Chagla, C.J., who delivered the judgment on behalf of the Full Bench, occurring on page 543 of the report would be very apposite for our present purpose. The learned chief justice observed - "In substance and in its effect there is no difference between an Act which is repealed and an Act which is declared void. In both cases the Act ceases to be operative, the law is annulled." 16. Now, turning to S.6 of the General Clauses Act, it applies to cases where any Act repeals any other Act. The repeal need not necessarily be by the legislative process on which Mr. Purshottam is relying. S.6 is not confined to cases where the Legislature expressly repeals a named legislation. S.6 must apply even to those cases where the effect of a subsequent legislation is to make an earlier legislation of no effect, and therefore when we turn to Art. 13, it is a subsequent piece of legislation undoubtedly of high import being a part of our Constitution which by its operation puts an end to certain laws which were in existence and which ceased to be in operation from a particular date. I fail to understand why S.6 should only be applicable to a case where the Legislature uses the expression "void" if in substance the effect of using these two expressions is exactly the same. Mr. Bharap has urged that we must read Art. 13(1) as invalidating the laws referred to in that sub-clause from their very inception and from the time when they were enacted. It is impossible to accept that contention because in terms Art. 13(1) provides that these laws although valid when they were enacted and valid up to the date of the commencement of the Constitution, become void when the Constitution comes into force by reason of the inconsistency with the fundamental rights laid down in Part III. 17. It is clear that no particular efficiency attaches to the expression "void" used in Art. 13(1), when one looks another article in which the same expression has been used and that Article is 254. 17. It is clear that no particular efficiency attaches to the expression "void" used in Art. 13(1), when one looks another article in which the same expression has been used and that Article is 254. That deals with the inconsistency that there may be between laws made by Parliament and the laws made by the legislature of the States, and it declares that to the extent that there is such an inconsistency the laws made by the Legislature of the State shall be void. Therefore any argument based upon the fact that the expression "void" used in the particular context of Part III should be given a special meaning loses much of its force when one finds the same expression used by the Constituent Assembly in Art. 254 which has nothing to do with any fundamental right. It is instructive to note also that in Art. 251, which again deals with inconsistency between the laws made by Parliament and the laws made by the Legislature of the States, the expression used by the Constituent Assembly is "inoperative" and not "void". Therefore the Constituent Assembly has used different expressions in different parts of the Constitution to indicate that particular law has ceased to have any effect and is no longer in operation. There is no reason why we should apply S.6 of the General Clauses Act only to Art. 395 where the expression "repealed" is used and not to other articles where different expressions are used, although in substance the meaning and the connotation of this expression is the same. 18. Our attention has also been drawn by the Advocate General to Art. 372. Looking to ArtS.393,13 and 372, the scheme seems to be that the Constituent Assembly has repealed the old Constitution Act and under Art. 372 it has continued in force all the laws which were in force before the commencement of the constitution subject to their being altered or repealed by a competent Legislature or other competent authority. But this is subject to Art. 13 which makes an exception in the case of those laws which are inconsistent with the provisions of Part III, and sub-cl. (2) of Art. 372 gives the power to the President for the purpose of bringing the provisions of any law in force into accord with the provisions of the Constitution and to make adaptations and modifications. (2) of Art. 372 gives the power to the President for the purpose of bringing the provisions of any law in force into accord with the provisions of the Constitution and to make adaptations and modifications. It is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declared to be void under Art. 13, all vested rights and all proceedings taken should be disturbed or effected by particular laws ceasing to be in force as a result of any inconsistency which the fundamental rights guarantee to the subject. 19. We are therefore of the opinion that S.6 of the General Clauses Act applies to those laws which have become void as a result of their being inconsistent with the provisions of Part III of the Constitution, and in as much as the proceeding before the Chief Presidency Magistrate which has been challenged by this petition was already taken before the Constitution came into force, that proceeding cannot be affected by the result of S.18(1) being declared to be void under Art. 13(1) of the Constitution. 20. What the learned Chief Justice of Bombay said in that case regarding S.6 of the General Clauses Act, 1887 must equally apply to S.24 of the said Act or S.23. If the effect of the enactment of the Central Law is a virtual repeal of the State Law the same consequences as an express repeal and re-enactment must follow. The 2nd respondent Tribunal's appointment would therefore continue to be valid notwithstanding the introduction of the Central Law to this State unless and until that Tribunal is superseded by the appointment of a new Tribunal. The second ground of Mr. Varadaraja Iyengar's argument also therefore fails. 21. A question which suggested itself to me on the above aspect of the case was whether without recourse to the provisions of the General Clauses Act the 2nd respondent Tribunal's continuance as such even after the Central Act became law here can be held to be valid by reason of the provision in S.41 of the Travancore-Cochin Industrial Disputes Act, XVI of 1950 quoted elsewhere in this order as that section as noticed earlier, has no counter-part in the Central Act. In view of my decision recorded in the preceding paragraph I do not think it necessary to venture to express any opinion about it. 22. In view of my decision recorded in the preceding paragraph I do not think it necessary to venture to express any opinion about it. 22. The next point relates to whether there is really an "Industrial Dispute" in the case so as to entitle the Government to make a reference under S.10 of the Act. The point of the argument was the petitioners are not carrying on any 'industry', that the relationship between the petitioners on the one hand and their labour on the other is not that of "employer" and "workmen" within the meaning of the Industrial Disputes Act and that the reference is hence without jurisdiction. This is one of the matters about which the Tribunal has passed an order and its decision goes against the petitioners. However in the counter-affidavit filed by the Tribunal before this Court the Tribunal has chosen to say in paragraph 11 thereof that the allegation that there was no dispute referable to a Tribunal and that the workmen were only casual labourers have yet to be tested by evidence which may be adduced by either party in the case. In view of this the order referred to can only be regarded as a tentative one holding that there is no ground to refuse in limine to make an award. The Government order referring the dispute cannot be taken to be conclusive of the point that between the present disputants there was an "Industrial Dispute" within the meaning of the Act. However it appears to me to be obvious that the matter cannot be decided except on evidence and this Court is therefore at this stage not in a position to pronounce upon it. Whether on a decision given by the Tribunal on evidence the court will be justified in examining its correctness or whether the question will be a more appropriate one for appeal is a question about which I need not express any opinion now. 23. Now I shall proceed to consider the fifth point raised before me viz., that the order of reference is invalid as in making it Government did not conform to the rules of natural justice. What was urged was Government did not issue notice to the petitioners or hear them before referring the dispute to the Tribunal. 23. Now I shall proceed to consider the fifth point raised before me viz., that the order of reference is invalid as in making it Government did not conform to the rules of natural justice. What was urged was Government did not issue notice to the petitioners or hear them before referring the dispute to the Tribunal. I am not aware of any law or rule that even where any judicial function is not involved an authority should give notice or hear both sides to a controversy before it takes action sanctioned by law. As far as I understand the position it is a pure executive or administrative act of Government to refer an industrial dispute to a Tribunal appointed by them. In my view there is no substance in this contention. 24. The last and the only further point remaining relates to the Tribunal's order disallowing representation to the petitioners through a qualified lawyer. According to S.37(3) of the Travancore-Cochin Industrial Disputes Act, XVI of 1950 a party to an Industrial Dispute was allowed to be represented by a legal practitioner in any proceedings before a Court or Tribunal. The Central Act XIV of 1947 as amended by act XLVIII of 1950 altered the whole law relating to representation of parties before authorities constituted under the Act and with respect to the particular point of representation before a Tribunal the provision is that in any proceeding before a Tribunal a party to a dispute may be represented by a legal practitioner with the consent of other parties to the proceeding and with the leave of the Tribunal. Vide S.36(4). Elaborate provisions are made in the earlier part of the section regarding representation and without setting them out here it may well be mentioned that Capital and Labour are given equal facilities and sought to be placed on equal footing for representation through persons or organisations engaged in the industry concerned. Now as to the provision we are concerned with here viz., S.36(4), the contention raised before the Tribunal was that the provision was a negation of the Fundamental Right of the citizen guaranteed by the Constitution in Art.19(1)(g) thereof viz., the right of a citizen to practice any profession or to carry on any occupation, trade or business. Now as to the provision we are concerned with here viz., S.36(4), the contention raised before the Tribunal was that the provision was a negation of the Fundamental Right of the citizen guaranteed by the Constitution in Art.19(1)(g) thereof viz., the right of a citizen to practice any profession or to carry on any occupation, trade or business. The petition before me states that the said provision in the Industrial Disputes Act violates not only the said Fundamental Right but also that provided by Art. 14 which is to the effect that the State shall not deny any person equality before the law or the equal protection of the laws within the territory of India. Mr. Varadaraja Iyengar fairly conceded, if I may say so very properly, that no question of violation of Art.19(1)(g) is involved here. It is not any Fundamental Right of the profession of law that is said to have been contravened. The only point is whether Capital and Labour are given equal facilities for representation. Reading S.36 as a whole or sub-s. (4) in particular I am unable to persuade myself to hold the State has denied equality before the law or the equal protection of the laws to Capital or to Labour. Under S.14 of the Bar Council's Act (Travancore) an advocate is entitled as of right only to practise in the High Court and Courts subordinate thereto. The right of an Advocate to practice before other Tribunals is subject to the limitations, if any, imposed by the laws in force from time to time. A litigant can only have a corresponding right to engage legal aid. I have had the advantage of perusing the Parliamentary Debates in connection with the passing of Act XLVIII of 1950 and the proceedings show that the new impugned section was not in the original bill or the bill as it emerged from the Select Committee. The provisions regarding representation now found in the Statute were introduced by the Honourable Member for Labour consequent on an agreement arrived at a tripartrite conference between the representatives of Government, Capital and Labour. The discussions further show the sole object of the Legislature was to place Capital and Labour on an equal footing. Experience showed that to allow representation through qualified lawyers had invariably the effect of putting labour at a disadvantage in that capital always engaged the best legal talent available. The discussions further show the sole object of the Legislature was to place Capital and Labour on an equal footing. Experience showed that to allow representation through qualified lawyers had invariably the effect of putting labour at a disadvantage in that capital always engaged the best legal talent available. A similar provision exists in the labour legislation of the Commonwealth of Australia and the Parliamentary Debates also show that such provisions exist in some of the continental Countries of Europe. Opinion might no doubt differ as to the wisdom of this law, but of the merits of the policy of the legislature courts cannot be Judges. After all an industrial arbitration is more often an extension of the powers of collective bargaining. I cannot therefore find my way that the impugned provision of the Industrial Disputes Act XIV of 1947 as amended by Act XLVIII of 1950 violates any Fundamental Rights guaranteed to the citizens of the territory of India by their Constitution. The same august body that passed the Constitution passed this legislation as well and it cannot be that in introducing these provisions that body was unmindful of the Fundamental Rights guaranteed by the Constitution. The argument that as a result of the provisions of the impugned S.36 the disputants in one case may get legal aid and that the disputants in another may not and that therefore there is no equality before the law or the equal protection of the laws for all citizens strikes me as betraying a complete lack of realistic approach to the problem. As the learned Advocate General put it, it is too fanciful or fantastic a thing regarding equality before law or the equal protection of the laws. The test can only be whether the contending parties to a particular dispute have such equality or such protection of the laws. The impugned section would in my opinion well survive that test. There is therefore no merit in this point either. 25. Before I conclude I have to revert to the preliminary objection raised by the learned Advocate General. The objection was that when other remedies are open to a litigant he should seek that remedy and not invoke the extraordinary jurisdiction vested in this Court under Art.226 of the Constitution. I have said a decision in favour of the Advocate General's contention will not by itself entail the dismissal of this petition. The objection was that when other remedies are open to a litigant he should seek that remedy and not invoke the extraordinary jurisdiction vested in this Court under Art.226 of the Constitution. I have said a decision in favour of the Advocate General's contention will not by itself entail the dismissal of this petition. In view however of the answer which the petitioner's learned Counsel gave to the preliminary objection I think a word or two from me will not be out of place here though I do not propose to express any final opinion on the question. S.7 of the Industrial Disputes (Appellate Tribunal) Act, 1950 provides that subject to the limitations imposed by that section an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal. For our present purpose we need not refer to the limitations imposed by the section. The question is whether the two orders referred to earlier viz., the one over-ruling the preliminary objection raised by the petitioners before the Tribunal and the other relating to Respondent 1's objection regarding the petitioners' representation by an advocate would amount to an award or decision within the meaning of the section. Mr. Varadaraja Iyengar referred to the line of cases construing the term "final order" in S.109(a) of the Civil Procedure Code, Act V of 1908 and the same term as used in S.205(1) of the Government of India Act 1935. The decisions in Ram Chand Manjimal v. Goverdhandas Vishindas 47 IA 124; Abdul Rahiman v. D.K. Cassim and Sons - 60 IA 76, S. Kuppuswami Rao v. The King - (1947) P.C.R. 180 and Mohammed Amin Bros. Ltd. v. The Dominion of India - (1950) 5 DLR (F.C.) p. 53 belong to that line of cases and the test employed in them was 'finality in relation to the suit'. The same test was supplied by the Calcutta High Court in Chandra Singh v. Midanapore Zemindary Co., (1950) 5 D.L.R. Cal. 161 for interpreting Art. 133(1) of the Constitution. If after the order the suit is still a live suit in which the rights of the parties have still to be determined the view held in all these cases was that it would not constitute a final order within the meaning of the provisions referred to. 161 for interpreting Art. 133(1) of the Constitution. If after the order the suit is still a live suit in which the rights of the parties have still to be determined the view held in all these cases was that it would not constitute a final order within the meaning of the provisions referred to. To my mind it appears this line of cases cannot help the construction of S.7 of the Industrial Disputes (Appellate Tribunal) Act 1950 in that the word award" is given a very wide connotation under the Industrial Disputes Act, 1947. An award is defined in S.2(b) of the Act and it states an "award" means an interim or final determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto." The view taken in the cases referred to is that the expression "final order" has been used in contradistinction to what is known as interlocutory order." When the Act expressly states that an award may be final or interim or there may be one even when any question relating to an industrial dispute is determined by an industrial Tribunal I am inclined to think that the lead of the cases referred to cannot be followed in this respect. The word "decision" is not defined in the Act. When an "award" itself need not necessarily finally determine the entire dispute it may not be correct to give to the expression "decision" a meaning out of tune with the meaning given to "award". The juxta-position of the two expressions may not justify it. Anyhow in view of what I have said on the merits of the petition it is unnecessary to express any final opinion on the points arising from the preliminary objection. I have said so much just to indicate that the point deserves consideration if the matter arises in another case. At the argument no attention was paid to the definition given to by the Act to the term "award". 26. In the result I hold that the petition cannot succeed on any of the grounds urged before me and I accordingly dismiss it with costs. Advocate's fee Rs. 100 (Rs. 75 to Respondents 2 and 3 and Rs. 25 to Respondent 1). The stay order will stand vacated. Dismissed.