Research › Browse › Judgment

Allahabad High Court · body

1974 DIGILAW 345 (ALL)

Kaleen Mazdoor Bunkar Panchayat v. State of Uttar Pradesh

1974-08-23

R.L.GULATI

body1974
JUDGMENT R. L. Gulati, J. - This petition arises out of proceedings under U. P. Industrial Disputes Act and the facts narrated in the writ petition are rather disturbing. 2. The petitioner Nos. 2 to 52 claim themselves to be the workmen of the second respondent, M/s Kashi Prasad and Sons, which is a partnership concern carrying on the business of manufacture and sale of carpets and rugs. The first petitioner is their union known as Kaleen Mazdoor Bunkar Panchayat, Bhadohi. The allegation of the petitioners is that the second respondent is influenced and resourceful family, one of its members has been a Member of Parliament and a Deputy Minister in the Union Government. The respondent No. 2 is also alleged to have considerable influence in the State Government. It is alleged that in spite of the fact that the second respondent had employed more than 100 workmen it did not get itself registered under the Factories Act nor did it comply with the Labour Laws and thus the workmen were deprived of the benefits under the Labour Laws. The petitioners complained this to the Labour Department and this led to trouble. The workmen alleged that they were not allowed to work and they were manhandled by the hired Goondas and by the local police. An attempt was made at conciliation but the same having failed the State Government referred the following dispute for adjudication to the Labour Court:- "Whether the employers kept out of employment the workmen, detailed in the Annexure, with effect from 9-7-1966, legally and or justifiably? If no, to what relief are the workmen concerned entitled ?" The Labour Court submitted its award dated 20th December, 1969 to the State Government for publication in the Gazette. It is alleged that when the award was submitted Shri Chandrabhan Gupta was the Chief Minister and Sri Kailash Prakash was the Labour Minister of Uttar Pradesh. As the second respondent had very close connections with the Chief Minister and the Labour Minister, pressure was bought on them to somehow nullify the award. The award was remitted for reconsideration by the Labour Court under Sec. 6(4) of the U. P. Industrial Disputes Act, 1947. The first petitioner, namely, the Union, through its President submitted representation to the Government complaining against the illegal manner in which an attempt was being made not to implement the award. The award was remitted for reconsideration by the Labour Court under Sec. 6(4) of the U. P. Industrial Disputes Act, 1947. The first petitioner, namely, the Union, through its President submitted representation to the Government complaining against the illegal manner in which an attempt was being made not to implement the award. The petitioners go on to say that in the meanwhile the cabinet led by Shri C. B. Gupta was dissolved and the effect of the second respondent to have the reference withdrawn did not succeed. The Labour Court again submitted its award without making any change in it. The finding in the award was that some of the workmen had been kept out of employment illegally and without justification with effect from 9th July, 1966 and they were entitled to reinstatement and also to compensation for the period for which they were kept out of employment. The Labour Court also found that as the Union had spent a lot of money in the proceedings before the Labour Court and the main plea of the employers was found to be false, the Union was awarded a sum of Rs. 400/- as costs. This award was published in the U. P. Gazette dated 8th August, 1970. According to Sec. 6-A of the U. P. Industrial Disputes Act the award became enforceable after 30 days from the date of its publication. Thereafter the second respondent got a writ petition filed against the award by one Saidullah alleging himself to be an independent contractor. The award was sought to be challenged in that case on the ground that the workmen concerned were the labourers employed by him and they were not the employees of the second respondent. This writ petition was numbered as writ petition No. 4880 of 1970. The petition was admitted but no stay order was granted. This writ petition was eventually withdrawn and was dismissed on 22nd December, 1972. The petitioners go on to say that in spite of the fact that no stay order was granted by this Court and the writ petition was eventually withdrawn, the State Government did not implement the award. The petitioners have further alleged that in the meantime the Sanyukta Vidhayak Dal Government came in power in the State with the dominant share of the Congress Organisation led by Shri Nijlingappa of which Sri S. D. Misra, was the General Secretary. The petitioners have further alleged that in the meantime the Sanyukta Vidhayak Dal Government came in power in the State with the dominant share of the Congress Organisation led by Shri Nijlingappa of which Sri S. D. Misra, was the General Secretary. The Government was led by Sri T. N. Singh as the Chief Minister belonging to Congress (Organisation) and Sri Prabhakar Tripathi was the State Minister for Labour in the Government. Shri Shyam Dhar Mishra, a member of the family of the second respondent was at that time the All India General Secretary and it is alleged that he once again exerted influence to nullify the award. 3. Whether these allegations are correct or not, the fact is that the State Government, through the Governor issued the following order on February 11, 1971:- "In exercise of the powers conferred by Sec. 21 of the U. P. General Clauses Act, the Governor is pleased to cancel his previous order No. 3755 (ST) /XXVI-A-959 (ST)-67 dated June 12, 1970 in pursuance of which the award, dated December 20, 1969 made by the Labour Court, Allahabad in an industrial dispute between Sarvasri Kashi Prasad and Sons, Gopiganj, Varanasi and its workmen (Adjudication case No. 90 of 1967) which was published in the Uttar Pradesh Gazette, dated August 8, 1970, Part I-B (ii) at page 1371." In other words, the Governor cancelled his previous order authorising the publication of the award in the official Gazette, with the result that the award could no longer be enforced. This order of the Governor has been challenged in this writ petition. 4. The main ground of attack is that the order is wholly mala fide and has been passed under political pressure. Although the circumstances do point out the exercise of some political pressure but, in my opinion, it is not necessary to strike down the impugned order on that ground, because it suffers from another legal infirmity. 5. Sec. 21 of the U. P. General Clauses Act, under which the impugned order purports to have been passed, in my opinion, did not authorise the Governor to cancel the publication of the award. The cancellation of the publication of the award was clearly meant to nullify the award given by the Labour Court. The award was of the nature of a quasi-judicial order. The cancellation of the publication of the award was clearly meant to nullify the award given by the Labour Court. The award was of the nature of a quasi-judicial order. The Governor, in the exercise of his executive powers, could not set aside or supersede it. What the Governor could not do directly he could not do indirectly. The result of the cancellation of the publication of the award is the same as that of setting it aside so as to render it ineffective. To my mind, such a course, was not open to the Governor. Once the award was published it became enforceable and its enforcement could be prevented only by getting the award itself set aside and that could be done only by taking appropriate legal proceedings such as a writ petition in the High Court. Indeed, such an attempt was made when writ petition No. 4880 of 1970 was instituted in this Court. In that writ petition the State of U. P., the Presiding Officer of the Labour Court, the second respondent Kashi Prasad and Sons and the petitioner No. 1., namely, Kaleen Mazdoor Bunkar Panchayat were all parties, besides Sri Kailash Prakash, M. L. A. and Sri Prabhakar Tripathi. In that writ petition the validity of the award was challenged and a payer was made for its quashing. When that writ petition was dismissed, the award became final and it could not be interfered with by the State Government either directly or indirectly. 6. In the counter-affidavit the action of the State Government has been sought to be justified on the ground that on 9-12-1969 a representation was made by one Saidullah, who ultimately filed the writ petition No. 4880 of 1970 that he be made a party as he was the labour contractor who had supplied the Labour to the second respondent and workmen concerned were his employees and not of the second respondent. This representation was not decided by the Labour Court and, therefore, it became necessary to remit the award. Paragraph 20 of the counter-affidavit itself shows that according to the Labour Court the representation of Saidullah was not on the record and, as such, the award did not require any re-consideration. This representation was not decided by the Labour Court and, therefore, it became necessary to remit the award. Paragraph 20 of the counter-affidavit itself shows that according to the Labour Court the representation of Saidullah was not on the record and, as such, the award did not require any re-consideration. However, it has been stated in the counter-affidavit that it was considered by the State Government that the Labour Court had committed a manifest error in not considering the representation of Saidullah and, therefore, the publication of the award was cancelled so that the dispute may be adjudicated upon afresh in which Saidullah may also be party. 7. Maybe that this was the reason which led to the cancellation of the publication of the award but I am constrained to say that the State Government was ill-advised to adopt this course. Even if the award was defective in the sense that one of the necessary parties had not been impleaded or heard, the only course open to the State Government was to get the award quashed through a writ petition either by the second respondent or through Saidullah. The award of the Labour Court after having been published became a judicial order and enforceable at law and it is only the High Court in its writ jurisdiction which could, if satisfied, have quashed the award so as to enable the State Government to make a fresh reference but the State Government certainly was not justified in nullifying the award by adopting the dubious course of cancelling its publication. 8. A somewhat similar question arose before the Supreme Court in the case of State of Bihar v. D.N. Ganguli, A.I.R. 1958 S.C. 1018, where it was claimed on behalf of the State of Bihar that it had the power to cancel its order making a reference in an industrial dispute to the Labour Court by virtue of the provisions contained in Sec. 21 of the General Clauses Act. The Supreme Court repelled this contention by saying :- "We have no hesitation in holding that the rule of construction enunciated by Sec. 21 of the General Causes Act so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of Sec. 10(1) of the Industrial Disputes Act." The decision of this Court in Bachchu Lal v. State, A.I.R. 1951 Alld. 836, is also relevant as it deals with the scope of the powers of the Government under Sec. 21 of the General Clauses Act. Following observation is to be found in paragraph 6 at page 838:- "It is urged on behalf of the State that since the Learned Sessions Judge issued the order of release, he could also rescind it. In our opinion, this is not a correct view of Sec. 21. The words notifications, orders, rules or bye-laws have, it would appear, no reference to judicial orders the passing and cancellation whereof is subject to and regulated by the courts of law....... Obviously the words notifications, orders, rules and bye-laws with which the expression "order" is associated, must be deemed to limit the scope of the word' orders to non judicial orders." The same view has been reiterated in the case of Jagdish Prasad v. District Board, A.I.R. 1956 Alld. 26, where it has been held that the word "orders" in Sec. 21 of the U. P. General Clauses Act refers to executive orders subordinate judicial orders, the passing and cancellation whereof is subject to and regulated by procedural laws. The word is not capable of being interpreted as including judicial or quasi-judicial orders since the word is associated with notifications, rules and bye-laws. 9. It was urged that in the instant case the Governor did not cancel the notification under Sec. 4-K of the Industrial Disputes Act and it also did not set aside or cancelled the award' made by the Labour Court which could be said to be an order of the quasi-judicial nature. I have already indicated above that the intention with which the impugned action has been taken was to nullify the award. Assuming, therefore, that technically the Governor was right, his action can be struck down on the ground that the power vested in him under Sec. 21 of the General Clauses Act has been used for an oblique purpose. No authority is needed for the proposition that a power conferred upon an authority must be exercised bonafide for the purpose for which it has been conferred and any abuse or misuse of such power, even though technically correct, is liable to be struck down by the Court. 10. No authority is needed for the proposition that a power conferred upon an authority must be exercised bonafide for the purpose for which it has been conferred and any abuse or misuse of such power, even though technically correct, is liable to be struck down by the Court. 10. For all these reasons allow this petition and quash the order of the State Government dated February 11, 1971 (Annexure A-7 to the writ petition), cancelling the notification relating to the publication of the award. The petitioners are entitled to costs.