Workmen, Swadeshi Cotton Mills Co. Ltd. v. Swadeshi Cotton Mills Co. Ltd — 1972 DIGILAW 72 (ALL)

ORDER K.N. Singh, J. - The State Government by its order dated 28-12-1967 referred the following dispute for adjudication to the Labour Court II at Kanpur:- "Whether the employers suspended the workman Sri Satti Din son of Sri Kali Charan. Picker, Ticket No. 143. Tirasal Department. Shift 'C' with effect from 7th January, 1967 and have consequently terminated his services with effect from 20th January, 1967 illegally and/or justifiably? If not, to what relief is the workman concerned entitled?" 2. The aforesaid order was issued by the State Government under Section 4-K of the U. P. Industrial Disputes Act on a dispute raised by the workman of the Sooti Mill Mazdoor Sabha, a union of workmen of Swadeshi Cotton Mills Co. Ltd. Kanpur. The employers contested the claim of its workmen. One of the grounds raised by the employers was that the dispute referred to the Labour Court was not an industrial dispute within the meaning of the Act. The Labour Court decided the dispute by its order dated 25-2-1969 and submitted its report to the State Government. The award was however, not published by the State Government. The Sooti Mill Mazdoor Sabha, the petitioner union approached the Labour Court and complained about the non-publication of the award. The Labour Court, through its letter dated 6-1-1970 addressed to the Secretary to the Government of Uttar Pradesh. Labour (A) Department made inquiries about the non-publication of the award The State Government by its letter dated 28-1-1967 informed the Labour Court that it had decided not to publish the said award, because on the findings recorded by the Labour Court it was of opinion that the matter of dispute was not an industrial dispute,, hence adjudication and the finding recorded by the Labour Court was not an award. The Labour Court informed the petitioner union about the decision taken by the State Government by its letter dated 28-1-1967, a copy of which has been filed as Annexure 'A' to the writ petition. The workmen of the Swadeshi Cotton Mills. Kanpur through its union have filed the present petition under Article 226 of the Constitution challenging validity of the action of the State Government and have prayed for the issue of a mandamus directing the State Government to publish the award given by the Labour Court. Kanpur in the dispute raised by them. 3. Kanpur through its union have filed the present petition under Article 226 of the Constitution challenging validity of the action of the State Government and have prayed for the issue of a mandamus directing the State Government to publish the award given by the Labour Court. Kanpur in the dispute raised by them. 3. Learned counsel for the petitioner has urged that under the provisions of the U. P. Industrial Disputes Act, 1947 hereinafter referred to as the Act the State Government had no discretion in the matter and it was under a mandatory duty to publish the award of the Labour Court. In withholding the publication of the Award State Government has acted in excess of its authority conferred op it by the Act. Learned Standing Counsel and the learned counsel for the employers, both have argued that since the Labour Court had recorded a finding that the dispute referred to it, did not constitute an industrial dispute hence the State Government was under no legal duty to publish the same. 4. The U.P. Industrial Disputes Act. 1947 was enacted, to maintain industrial peace to prevent interference, with public safety, or public order or with the maintenance of supplies and services essential to the life of the community or of the employment. The Act provides machinery to settle disputes or differences between employers and workmen on the industrial matters or the questions connected with the employment, non-employment including terms and conditions of employment etc. Industrial dispute and machinery Provided for its settlement embrace a very wide field. In pursuance of the provisions of the Act State Government has constituted a number of Labour Courts and Industrial Tribunals to decide disputes between the workmen and the employers. Section 4-K of the Act confers power on the State Government to refer any dispute or any matter appearing to it to be connected with an industrial dispute to a Labour Court or Industrial Tribunal, whenever it is satisfied that an industrial dispute exists or is apprehended. The satisfaction of the State Government is subjective at that stage as no evidence is adduced by the parties concerned and the question whether a dispute is an industrial dispute or not is decided by the State Government on the material available to it through Governmental agencies. The satisfaction of the State Government is subjective at that stage as no evidence is adduced by the parties concerned and the question whether a dispute is an industrial dispute or not is decided by the State Government on the material available to it through Governmental agencies. While considering the propriety and expediency of referring a dispute for adjudication to Labour Court or Tribunal State Government performs an administrative function. After a dispute is referred to a Labour Court or Tribunal, parties, namely the workmen and the employers, get an opportunity to plead their case before the Labour Court. The proceedings before the Labour Court are judicial. On the pleadings of the parties, issues are framed, evidence is recorded and arguments are heard and thereupon Labour Court submits its findings to the State Government in writing. Section 6 of the Act lays down that where an industrial dispute is referred to a Labour Court or Tribunal for adjudication, it shall hold its proceedings expeditiously and shall as soon as it is practicable on the conclusion thereof, submit its award to the State Government. The award shall be in writing and shall be signed by the presiding officer. Sub-section (3) of Section 6 of the Act lays down that within a period of 30 days from the date of the receipt of the award, it shall be published by the State Government in such manner as it thinks fit. Sec. 6-A of the Act lays down that an award shall become enforceable on the expiry of 30 days from the date of its publication. The award remains in operation for a period of one year or for such other shorter period as the State Government may specify. Ss. 6-E and 6-F of the Act make special provision prohibiting change in conditions of service during the pendency of proceedings before the Labour Court Or Tribunal. The award remains in operation for a period of one year or for such other shorter period as the State Government may specify. Ss. 6-E and 6-F of the Act make special provision prohibiting change in conditions of service during the pendency of proceedings before the Labour Court Or Tribunal. The employers are not permitted to suspend or dismiss the workman concerned during the pendency of proceedings before the Labour Court or Tribunal as the case may be Section 6-D lays down that proceedings before a Labour Court or Tribunal shall be deemed to have commenced on the date of reference of a dispute to adjudication, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 6-A, that is on the expiry of 30 days from the date of its publication. The aforesaid provisions show that a dispute referred to a Labour Court by the State Government remains pending in the eye of law till the expiry of 30 days from the date of publication of Award. The scheme envisaged under the Act shows that publication of an award as given by the adjudicating authority namely the Labour Court or Industrial Tribunal is a necessary step to resolve disputes raised by the workmen. 5. The question which arises for consideration is whether the State Government is empowered under the Act to withhold publication of an award, submitted to it by the Labour Court on a reference made to it Sub-section (3) of Section 6 of the Act runs as under- "Subject to the provisions of subsection (4) every arbitration award and the award of a Labour Court or Tribunal shall, within a period of thirty days from the date of its receipt by the State Government be published in such manner as the State Government thinks fit". 6. The language of the above subsection imply that the State Government is under a duty to publish an award submitted to it by a Labour Court within 30 days from the date of its receipt. The use of the word "shall" is significant. The State Government is not left with any discretion in the matter. It is under a mandatory duty to carry out the dictates of the Legislature to publish the award within 30 days from the date of its receipt. The use of the word "shall" is significant. The State Government is not left with any discretion in the matter. It is under a mandatory duty to carry out the dictates of the Legislature to publish the award within 30 days from the date of its receipt. The only thing which has been left to the discretion of the State Government is the manner of publication of the award. The State Government may decide the manner of publication according to its own discretion. The manner of publication may be by publication in the newspapers or on the notice board of the Labour Court or any other manner which the State Government may consider suitable. In our State the U. P. Government has been following the uniform practice of publishing awards in the Official Gazette. The provisions contained in sub-section (3) of Section 6. requiring the publication of awards, is subject to the provisions of sub-section (4) of Section 6 which lays down that if in any case, on the receipt of award from a Labour Court or Tribunal the State Government is not satisfied with the findings recorded on certain questions, it may remit the award for reconsideration to the adjudicating authority. The Labour Court or Tribunal is thereupon required to reconsider the matter and to submit its report to the State Government. On receipt of the findings, the State Government is required to publish the award as contemplated by sub-section (3) of Section 6 of the Act. Sub-section (5) of Section 6 of the Act lays down that an award published under sub-section (3) shall be final and shall not be called in question in any court in any manner whatsoever. Correction of any clerical or arithmetical mistake in the award is permitted under the Act. But even such corrections are required to be published in the manner, an award is published under sub-section (3) of Section 6 of the Act. Section 6 of the Act thus in every case requires the State Government to publish the award. There is no provision under the Act conferring power on the State Government to hold an inquiry or to determine the desirability of publication of an award submitted to it. Section 6 of the Act thus in every case requires the State Government to publish the award. There is no provision under the Act conferring power on the State Government to hold an inquiry or to determine the desirability of publication of an award submitted to it. Once a dispute is decided judicially by Labour Court or Tribunal and the report is submitted to the State Government, it is not invested with any power to withhold publication of such an award. The Legislature did not confer any such power on the State Government as that would lead to great dissatisfaction among the parties, affecting industrial peace. 7. The Legislature was conscious that in some cases a situation could arise when the enforcement of an award would not be in public interest as it may affect national or State economy or social justice hence it made special provision by enacting Section 6-A of the Act conferring power on the State Government to declare that an award shall not become enforceable on the expiry of the period of 30 days. Sub-section (1) of Section 6-A lays down that an award shall become enforceable from the date of its publication but the proviso thereto confers power on the State Government to declare that the award shall not become enforceable even on the expiry of 30 days provided that the State Government is of opinion that it would be inexpedient on public grounds affecting National or State economy or social justice to enforce the award. The Legislature did not however, confer absolute power on the State Government to make such declaration. By enacting sub-sections (2), (3) and (4) of Section 6-A of the Act the Legislature issued a mandate that in a case where action is taken by the State Government in exercise of its power, conferred on it by the proviso to sub-section (1) to Section 6-A, it shall within 90 days from the date of the publication of the award make order, rejecting or modifying the award, and that order shall on the first available opportunity be laid along with the copy of its order before the State Legislature. On a consideration of the award and the order of the State Government, the State Legislature may reject or modify the award and on the expiry of 15 days from the date on which it is so laid before the State Legislature the award shall become enforceable. In case, however, no such order as contemplated by sub-section (2) of Section 6-A is passed by the State Government rejecting or modifying the award, the award shall become enforceable on the expiry of period of 90 days from the date of its publication under Section 6. Under sub-sections (2) and (3) of Section 6-A of the Act the Legislature has reserved its power to consider the desirability of modifying an award before its enforcement and the matter has not been left to the State Government's discretion. There is no other provision conferring power on the State Government to withhold publication or enforcement of an award given by a Labour Court or Tribunal, on a reference made to it by the State Government under Section 4-X of the Act. There may, however, arise a situation when the State Government may withhold the publication of an award. In a case where the dispute is adjudicated and, award is submitted to the State Government by the Labour Court for publication but before publication is made parties arrive at a settlement, settling the dispute amongst themselves and they jointly make application to the State Government, it is not under a duty to publish the award because in that case no dispute is left between the parties and the dispute between them stands amicably settled. As soon as the agreement of settlement is signed in the prescribed manner a copy of the same is sent to the Government, the settlement becomes binding at once on the parties to it and it comes into operation on the date it is signed or on the date which might be mentioned in the settlement for its coming into operation. In such a case the State Government is not bound to publish the award received by it from a Labour Court. Besides that there is no other contingency contemplated under the Act empowering State Government to withhold publication of an award. 8. In such a case the State Government is not bound to publish the award received by it from a Labour Court. Besides that there is no other contingency contemplated under the Act empowering State Government to withhold publication of an award. 8. The provisions of Section 17 (1) of the Industrial Disputes Act 1947 (Central) are in par-material with those contained in sub-sections (3) and (5) of Section 6 of the U. P. Act. The question whether the provisions contained in Section 17 (1) of the Central Act requiring publication of award was mandatory was considered by the Supreme Court in the case of Sirsilk Ltd. v. Govt, of Andhra Pradesh, AIR 1964 SC 160 . The contention that the provisions contained in Section 17 of the Central Act, requiring the publication of an award was directory and not mandatory was repelled by their Lordships of the Supreme Court in the following words:- "We are of opinion that the first contention on behalf of the appellants, namely, that the publication of the award under Section 17 (1) is directory cannot be accepted. Section 17 (1) lays down that every award shall within a period of thirty days from the date of its receipt by the appropriate Government be published in such manner as the appropriate Government thinks fit. The use of the word "shall" is a pointer to Section 17 (1) being mandatory, though undoubtedly in certain circumstances the word "shall" used in a statute may be equal to the word "may". In the present case, however, it seems to us that when the word "shall" was used in Section 17 (1) the intention was to give a mandate to Government to publish the award within the time fixed therein. This is enforced by the fact that sub-section (2) of Section 17 provides that "the award published under sub-section (1) shall be final and shall not be called in question by any court in any manner whatsoever". Obviously when the Legislature intended the award on publication to be final, it could' not have intended that the Government concerned had the power to withhold publication of the award." 9. Obviously when the Legislature intended the award on publication to be final, it could' not have intended that the Government concerned had the power to withhold publication of the award." 9. After analysing the provisions of Section 17 (1) of the Central Act their Lordships observed: "It is clear, therefore, reading Section 17 and Section 17-A together that the intention behind Section 17 (1) is that a duty is cast on Government to publish the award within thirty days of its receipt and the provision for its publication is mandatory and not merely directory." 10. I have already referred to the Provisions of the U. P. Act. The law declared by their Lordships of the Supreme Court in the case of Sirsilk Ltd. is fully applicable to the present case. The State Government was under a duty to publish the award and it had no discretion in the matter. The State Government acted in excess of its authority in withholding the award submitted to it by the Labour Court. 11. Learned counsel for the respondent urged that Section 6 (8) of the Act contemplates publication of an award provided it is an award as defined by Section 2 (c) of the Act. It was further urged that since the Labour Court had decided that the dispute referred to it by the State Government was not industrial dispute, the decision so given by the Labour Court did not determine any industrial dispute, hence it was not an award, therefore, the State Government was under no duty to publish the same. I have considered this question but I do not find any merit in it. Award as defined by Section 2 (c) of the Act means an interim or final determination of any industrial dispute or any question relating thereto by any Labour Court or Tribunal and includes an award made under Section 5-B of the Act. The definition of award as contained in the Act shows that it may be an interim or final determination of any industrial dispute or of any question relating thereto by a Labour Court or Tribunal. The dispute in the present case had been referred to the Labour Court as the State Government was of the opinion that an industrial dispute existed between the workmen of the respondent mills and the employers. The dispute in the present case had been referred to the Labour Court as the State Government was of the opinion that an industrial dispute existed between the workmen of the respondent mills and the employers. The satisfaction of the State Government that it was an industrial dispute was no doubt prima facie and the employers were at liberty to contest the question before the Labour Court. The respondents assert that the Labour Court has recorded a finding that the dispute did not constitute an industrial dispute within the meaning of Section 2 of the Act, hence the adjudication did not constitute an award. The definition of an award as contained in Section 2 (c) of the Act is a wide one. Award is defined in the Act means adjudication of an industrial dispute but it further includes determination 'of or adjudication of any question relating to an industrial dispute. In my opinion the finding recorded by the Labour Court that the dispute referred to it was not an industrial dispute is itself a determination of a question related with the industrial dispute. The adjudication of that question by the Labour Court was, therefore, an award under the Act. 12. It is a matter of common knowledge that very often employers raise issue before the Labour Court or Tribunal that the dispute referred to it was not an industrial dispute. Issue is framed and finding is recorded thereon. If the view, which the State Government has taken in the present case is allowed to stand, then findings recorded by the Labour Court shall never see light of the day and the workmen shall be left with no remedy. The workmen in that situation shall have no opportunity to see or examine the reasons recorded by the Labour Court. Proceedings before the Labour Court are judicial in nature, and the Labour Court is required to record reasons in determining the questions raised before it. It would be against principle of justice to keep such findings, confidential and to deny access to that judgment to the party concerned. The principle behind the requirement of publication is that the parties should know the reasons which the Labour Court may have recorded in determining the dispute before it. It would be against principle of justice to keep such findings, confidential and to deny access to that judgment to the party concerned. The principle behind the requirement of publication is that the parties should know the reasons which the Labour Court may have recorded in determining the dispute before it. On these considerations also I am of the opinion that even if the matter referred to a Labour Court is held not to be an industrial dispute the State Government is under a mandatory duty to publish the award submitted to it by the Labour Court. It has no authority under the law to withhold publication on the ground that the findings recorded by the Labour Court indicated that the dispute referred to it was not an industrial dispute. As already discussed the Act does not confer any such power on the State Government. There is no merit in the respondents' contention. 13. In the result. I allow the petition. A writ of mandamus is issued directing the State Government, respondent No. 2 to publish the award submitted to it by the Labour Court, Kanpur, in reference No. 57 of 1968 in the dispute between M/s. Swadeshi Cotton Mills Ltd. Kanpur and its workmen, at an early date. The petitioners are entitled/to their costs.