ORDER The petitioners, in the instant application under Article 226 of the Constitution of India, inter alia, pray for a writ in the nature of mandamus commanding the respondents to withdraw, recall and cancel an order of reference being No 988-IR/IR/10L-38/89- Pt dated May 29, 1990 of the Assistant Secretary to the Government of West Bengal, Labour Department which is annexure 'P' to the petition and order No 992-IR/IR/10L/38/89 (pt) dated May 29, 1990 of the Secretary to the Government of West Bengal. Labour Department which is annexure 'O' to the petition as also for a declaration that s. 10 (3) of the Industrial Disputes Act, 1947 is unconstitutional and void and as such the same should be struck down. 2. The matter was hotly contested both by The State and the three unions of the company. If fact, respondent no. 4 filed an application for vacating the interim order which was treated as the affidavit-in-opposition to the writ petition. The other respondents did not file any affidavit-in-opposition as they contended that the entire question raised in the writ petition is a question of law. 3. It may be mentioned here that when the application was moved an interim order in terms of prayer (g) so far as the latter order which is annexure 'Q' to the petition is concerned was issued. It may further be mentioned here that there was no order of injunction passed by this court so far as the order of reference is concerned. The interim order was extended - from time to time for short spells. 4. It would be more convenient to take up the question of vires of subs. (3) of s.10 of the Industrial Disputes Act, 1947, hereinafter referred to act he Act, first. 5. Before embarking on a voyage of determination of the vires of subs. (3) of s. 10 of the Act, it is necessary to quote the said sub-section. The said sub-section reads as follows : "(3) Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock out in connection with such dispute which may be in existence on the date of reference." 6. The said sub-section reads as follows : "(3) Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock out in connection with such dispute which may be in existence on the date of reference." 6. The petitioner contends that the said sub-section confers a discretionary power upon the State Government in absolute terms with no guidelines laying down circumstances where such discretionary power can be exercised. The petitioner contends that this sub-section takes away from the employer one of the most valuable weapons of the employer vis a vis his employees It is further contended that the right to declare a lock out is a statutorily recognised right but 'under sub-section (3) of s. 10 of the Act such right has been taken away unceremoniously from the employer and the said sub-section confers on the executive authority uncontrolled, Uncannalised and unguided powers which can be exercised by such Government at their whims and caprices. The power conferred on the executive authority is arbitrary and as such is violative of the provisions of Article 14 of the Constitution of India. 7. The question of the constitutionality of the entire Act namely, the Industrial Disputes Act, 1947 was first raised in the case of Niemla Textile Finishing Mills Ltd. & Drs. v. The Second Punjab Tribunal & Drs. reported in AIR 1957 SC 329 . A five Judge Bench of the Hon'ble Supreme Court has upheld the constitutional validity of the entire Act which includes the said sub-section (3) of s. 10. 8. The petitioner once again wants to raise the dead from the sepulchre. In the case of Delhi Cloth and General Mills Co. Ltd. v. Sambhunath Mukherjee & Drs. reported in AIR 1978 SC 8 : 1977 Lab. I. C. 1695, it was, inter alia, held in paragraph II as follows : "It is submitted by Mr. Dial in decision that this court was only required to consider the objection railed on the score of Article 14 on a ground which is different from (he one, he would like take before us. We are however, unable to accept this submission. Dial in decision that this court was only required to consider the objection railed on the score of Article 14 on a ground which is different from (he one, he would like take before us. We are however, unable to accept this submission. If this court held s. 10 as intra vires and repelled the objection under Article 14 of the Constitution, it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh ground of attack to sustain the same objection. But that. cannot be permitted once the law has been laid down by this Court holding that s. 10 of the Act does not violate Article 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Article 14 of the Constitution in respect of the present reference under s. 10 (1) (c) of the Act. The submission of the learned Counsel is therefore, devoid of substance." 9. In an earlier, decision of this court the Hon'ble Mr. Justice P.N.Mookherjee and the Hon'ble Mr. Justice Amiya Kr. Mookherjee in the case of Sailendra Nath Neogi v. Purnendu Sen & ors. reported in AIR 1971 Cal. 169 , held in paragraph 11 of the decision, inter alia, as follows : "On the question of vires of s. 24, the matter at present seems to be concluded against the petitioner by the decision of the Hon'ble Supreme Court, reported in Shibsankar Nandi v. Prabartak Sangha AIR 1967 SC 940 and although Mr. Lala wanted' to raise this question on a ground, different from that, actually and specifically considered by the Supreme Court in the above decision, it is clear that, so long as the decision stands, this court cannot go against it upon the footing that a particular aspect was got considered by Their Lordships of the Supreme Court in the said decision, we would, accordingly, overrule this submission of Mr. Lala in support of this rule". 10. This earlier Calcutta decision prevents me from going afresh into the question of the law laid .down by the Hon'ble Supreme Court to the effect that s. 10 of the Industrial Disputes Act, 1947 is intra vires. 11. Lala in support of this rule". 10. This earlier Calcutta decision prevents me from going afresh into the question of the law laid .down by the Hon'ble Supreme Court to the effect that s. 10 of the Industrial Disputes Act, 1947 is intra vires. 11. The petitioner further wanted to cite a la test decision of the Hon'ble Supreme Court in the case of Good Year India Ltd & Ors. v. State of Haryana & anr. reported in (1990) II SCC 71 to establish the proposition that vires of an Act can be challenged( on a ground not agitated in an earlier case, I am afraid, the observation of Their Lordships is not exactly that. 12. First the decision in Delhi Cloth & General Mills Co (supra) was a decision of a bench consisting of three Hon'ble Judges whereas the decision in the Good Year's case (supra) is a decision of two Hon'ble Judges. That is merely the factual position and I am not bringing in the question of an earlier larger bench decision being preferable to a latter bench consisting of less number of Judges. What I want to say is that the Hon'ble Supreme Court in the Good Year's case did not exactly dwell on the point raised by the petitioner in this case, inter alia. inasmuch as in paragraph 22 of the said judgment in the Good Year's case (supra), Their Lordships, inter alia, on the authority of Quinn v. Leuthem reported in 1901 AC 495, held that a precedent is an authority only for what it actually decides and not for what may remotely or even logically follow from it. In paragraph 33 of the said decision. Their 'Lordships also did not unequivocally lay down the principle that the vires of an Act can, be challenged on a ground not agitated ill an earlier case as sought to be contended by the petitioner. In that sense the Good Year's case is clearly distinguishable both on facts and the question of law raised and sought to be raised. 13. From this I am constrained to deduce that s. 10 of the Act having been held to be intra vires in Niemla Textile's case, (supra), the vires of s. 10 (3), which was unequivocally decided in the said case, cannot be reagitated in subsequent case. 13. From this I am constrained to deduce that s. 10 of the Act having been held to be intra vires in Niemla Textile's case, (supra), the vires of s. 10 (3), which was unequivocally decided in the said case, cannot be reagitated in subsequent case. If that be so then all precedents would lose their Jay Engineering v. State of W. B. (K. M. Ganguli, J.) 453 values and judicial anarchy is likely to reign in a field in which precedents have occupied a place of reverence. 14. In the circumstances, J am constrained to hold that sub-s. (3) of S. 10 of the Act is intra vires and not unconstitutional. 15. Certain other submissions were made in connection with sub-s (3) of s. 10 of the Act to which I shall refer later on. The main contentions of the petitioner can be grouped broadly under three sub-heads besides the point already discussed and decided. The three sub-heads of the arguments are as follows : (i) that the order under s. 10 (1) is bad being vague and unspecific (ii) that the order under sub-s. (3) of s. 10 is bad on the ground that in the facts and circumstances of the case the order under s. 10(3) has no nexus with the issue of lock-out and is not "in connection" with such dispute (iii) that before passing the order under sub-s. (3) of S. 10 the of principles of natural justice in giving an opportunity to the petitioner was not complied with. 16 The points are to be taken up one after the other. Before taking up the points it must be mentioned that numerous case laws were 'cited at the bar but it may not be necessary to refer to all such case laws as being either not to the point or irrelevant or redundant. 17. The order of reference which is annexure 'P' to the petition contains 7 issues. So far as the first three issues are concerned, these are specific disputes 'relating to the wages, grades and scales of pay, yearly increment, dearness allowance, deduction of increment from incentive bonus, monetary compensation for workmen rendered idle because of sourcing out etc. 18 The issue no. 4 is "production and productivity". The issue no.5 is "diversification of products". The issue no. 6 is "change of operation. of production and its effect". The issue no. 18 The issue no. 4 is "production and productivity". The issue no.5 is "diversification of products". The issue no. 6 is "change of operation. of production and its effect". The issue no. 7 is whether lock out declared with effect from 18/19 12.89 is justified? What reliefs, if any, are the workman entitled to ? 19. The petitioners contend that the issue nos. 4 to 7 do not reflect a 'dispute" and there has been no attempt to formulate the dispute and the reference has been made in broad general terms. The petitioners contend that although the' law requires the reference of a dispute. what has been referred is merely certain topic. "'The petitioners contend that although the language of the reference may be cryptic or broad it must reflect a question or an issue. The order of reference in the instant case permits any issue to he railed under a broad topic and the points of reference are incapable of being made certain. It has been contended by the petitioner that an order of reference is not immune from challenge merely because it is an administrative order. In this connection the petitioners have referred to case of M/s. Hochtief Gammon v. State of Orissa & ors. reported in AIR 1975 SC 2296. It may be said that it is nobody's case that an order of reference can never be challenged and as such even agreeing with• respect with the aforesaid decision of the Supreme Court one must hold that the said case is not very relevant for a' decision on the point in issue. On the contrary it has been held in the case of the State of Madras v. C. P. Sarathy & anr. reported in AIR 1953 SC 53 that even when the order of reference is couched in a wide language the same is capable of being crystalised after perusing the pleadings of the parties. It is not necessary for the appropriate Government to specify any issue at all which can be ascertained from the pleadings of the parties. it is sufficient if a dispute existing between the employer and the workmen is referred to for adjudication. The rest is left to the adjudicating authority. It is not necessary for the appropriate Government to specify any issue at all which can be ascertained from the pleadings of the parties. it is sufficient if a dispute existing between the employer and the workmen is referred to for adjudication. The rest is left to the adjudicating authority. The contention of the petitioners that the said decision of 1953 relating to the industrial law has undergone a sea change is not tenable, inter alia, inasmuch as the said case still rules the field in its pristine glory and has not yet been either overruled or distinguished. Incidentally it may be remembered that the decision is of a five judge bench of the Supreme Court including Pantanjali Sastri, C. J. and Dr. B. K. Mukherjee J. Similar view has been expressed by the Supreme Court in the case of Delhi Cloth and General Mills. Co. Ltd v. The Workmen & ors. reported in AIR 1967 SC 469 wherein it has been reiterated that the tribunal may look into the pleadings to find out the exact nature of the dispute. The petitioner referred to sub-s. (4) of s. 10 of the Act and stated that under the said sub-section the tribunal is bound to confine its adjudication only to those points and matters incidental thereto. One is tempted to hold that the contention of the petitioners is rather contradictory, inter alia, inasmuch as on one breath the petitioners contend that no 'issues' but 'topics' have been referred and in the same breath contend that the tribunal cannot travel beyond the 'issues' referred to it by the appropriate Government. 'If 'topics' have been referred to the tribunal for adjudication and if the tribunal, on a perusal of the pleadings can narrow down the issues there is no contradiction in terms and the order of reference will not necessary become bad. 20. The petitioners further contended that an order of reference can be challenged on the ground that there has not been proper application of mind to the facts of the, case. I respectfully agree with the said principle as laid down in the aforesaid case of M/s Hochtief Gammon (supra) but am unable to hold that in the instant case the appropriate Government did not apply its mind. It may be remembered that after protracted negotiations ranging over about 4/5 months, the impugned order of reference was made. 21. I respectfully agree with the said principle as laid down in the aforesaid case of M/s Hochtief Gammon (supra) but am unable to hold that in the instant case the appropriate Government did not apply its mind. It may be remembered that after protracted negotiations ranging over about 4/5 months, the impugned order of reference was made. 21. It has further been contended by the petitioners that issue Nos. 4. 5 and 6 are picked up at random from a list of items contained in the aide me moire submitted by the petitioners. I am again unable to uphold the contention of the petitioner. It is for the appropriate Government to select and formulate the issues which it thinks should be referred for adjudication by the tribunal. It is not for the court to substitute its own wisdom in the place and stead of the wisdom of the appropriate authority excepting probably in cases where a total lack of application of mind ex-facie appears on the order of reference itself which is not the matter in the instant case. 22. It has also been contended by the petitioners that when most of the existing industrial disputes between the parties have been left uncovered by the order of reference the same is vitiated by arbitrariness. non-application of mind and mala fides Even if it is assumed that there were various other disputes either existing on the date of reference or were apprehended, the court cannot compel the appropriate Government to refer all such disputes and it is in the realm of the discretion of the appropriate Government to pick up the issues which, to it, appears to need adjudication. It is open to the employer to ask the appropriate Government also to refer certain other disputes not already referred and it will then be the duty of the appropriate Government to apply its mind and. to come to a conclusion whether such other issues either in the same order of reference are to be referred to the adjudicating machinery. Non reference of all the disputes, existing or apprehended, do not necessarily make the issues actually referred, untenable in law. 23. The petitioners also tried to invoke the doctrine of severability but I am afraid that this is totally irrelevant in the facts arid circumstances of the instant case. Non reference of all the disputes, existing or apprehended, do not necessarily make the issues actually referred, untenable in law. 23. The petitioners also tried to invoke the doctrine of severability but I am afraid that this is totally irrelevant in the facts arid circumstances of the instant case. From the 'file of the conciliation proceedings it appears that a tussel was going on between employer and workmen regarding discontinuance of two out of 12 assembly lines which bred an apprehension in the minds of the workmen that these two assembly lines would be reorganised for the purpose of manufacture of faris instead of sewing machines so that 'the workmen working in those two assembly lines manufacturing sewing machines would be rendered jobless and the workmen of the fan factory would also suffer. Closely connected with the issue of production and productivity are the issues relating to identification of products and change of operation of production and its effect. So I am of the opinion that the issue Nos. 4, 5 and 6 are not only relevant but can be called' down from the detailed negotiations before the consulting machinery and as such these issues are not at all vague or indefinite. 24 So far as the issue No.7 relating to the justification of the lock out is concerned the petitioners contended that the' lock out was a sequel to an illegal strike resorted to by the workmen and unless an issue relating to such strike is also referred the issue relating to the lock out would be one aided and prejudicial to the interest of the emploser. 25. It may be noted that the justification of the lock out is intimately connected with the existence or non existence of a strike and the adjudicating machinery, on the basis of the pleadings, can certainly go to the question of the strike which mayor may not have preceded the 'lock out even if the issue of such a strike is not expressly referred to it. It is an admitted position that the sewing machines unit of the petitioner is a public utility concern. It is an admitted position that the sewing machines unit of the petitioner is a public utility concern. Certain formalities are to be complied with before the workmen can resort to a strike and if that is not done and as a retaliatory measure the employer takes recourse to lock out which is a very valuable weapon conferred on the employer under the Jaw itself, than certainly in determining the justification of the lock out the inevitable question of the justification of a strike proceeding such a lock out is to be gone into by the adjudicating machinery even though the issue of strike had not peen specifically referred to the tribunal. In the instant case before the conciliation officer contesting claims were made as to the strike itself. The employer contended before the conciliation officer that the lock out was preceded by an illegal strike whereas the workmen contended that there was no strike at all but the workmen themselves were rendered inoperative because the employment off electrical connection of the accessibly line, If the appropriate Government referred the specific issue relating to the strike, the tribunal's hand would be bound and it would not be able to decide whether there was actually any strike preceding the lock out but if this strike is not referred to the tribunal by the appropriate Government the tribunal would be free to adjudicate on the contesting claims of the parties relating to the factual existence of the strike. In this connection the case of Delhi Cloth and General Mills Co. Ltd. (supra) may be referred to wherein the Supreme Court, inter alia, held that the tribunal cannot go behind the Issue actually referred to it. 26 In the facts and circumstances of the case I am constrained to hold that the issue nos. 4 to 7 do not betray a lack of application of mind of the appropriate Government in referring the said issues to the tribunal. 27. The next point canvassed by the petitioners needs a little closer attention. 28. 26 In the facts and circumstances of the case I am constrained to hold that the issue nos. 4 to 7 do not betray a lack of application of mind of the appropriate Government in referring the said issues to the tribunal. 27. The next point canvassed by the petitioners needs a little closer attention. 28. The point urged by the petitioners was that the order under s. 10(3) of the Act is bad inasmuch as there has to be an industrial dispute having a nexus with the lock out and that the lock out has to be 'in connection with' such dispute or in otherwise the lock out must have flowed from the dispute, It is urged that the scheme of s. 10(3) is that the cause of the strike or lock out will disappear as a result of the adjudication thereby rendering the continuance of the strike or lock out unnecessary. His further urged that before an order under s. 10(3) can be passed, the order of reference must be of such a nature that it tackles the underlying or proximate cause from which the strike or lock out flowed. It has been very strongly urged by the petitioners that the justification of the lock out is not a dispute in connection with such lock out and as such merely by referring the issue relating to the justification of lock out, the appropriate Government does not acquire a power to pass an order under s. 10 (3) A plethora of decisions has been cited on this aspect of the matter but it may not be necessary to refer to all these cases in view of the approach made by this court to there said aspect of the matter. 29. It has further been urged by the petitioners that there is a vital distinction between matters incidental to the lock out and a "dispute which may be in existence on the date of reference" giving' rise to the lock out. 30. The learned Counsel appearing for the State submitted that the issue no. 7 of the order of reference is not merely the justification of the lock out but the entire dispute relating to the said issue in deciding the justification of the lock out. The existence or non-existence of a strike, legal or illegal, is implicit in the said issue. The learned Counsel appearing for the State submitted that the issue no. 7 of the order of reference is not merely the justification of the lock out but the entire dispute relating to the said issue in deciding the justification of the lock out. The existence or non-existence of a strike, legal or illegal, is implicit in the said issue. It has already been observed that the issue relating to the strike could not 'have been referred as there was a divergence of opinion as to the factum of such a strike. 31. It has already been observed that in deciding the question of the justification of the lock out the question of the existence or non-existence of a strike can be gone into by the tribunal but if the Issue relating to the strike is referred the tribunal will be bound to act on the premise that there was an existing strike on the date of reference which necessitated the declaration of the lock out. By referring issue no. 7 the appropriate Government has kept open the question of any strike which can be gone into and ascertained from the pleadings and the evidence adduced at the trial. 32. That apart the Issue nos. 4, 5, and 6 taken together, in wide terms relate to the question of lock out. it appears from the file of the conciliation proceeding, that restructuring restraining or attempting to restructure the assembly line gave rise to an apprehension in the minds of the workmen concerned as to the production and productivity, the diversification of product and the change of operation of production and its effect. Large scale and widespread unemployment and unfair labour practice was apprehended by the workmen. This laid to a situation of uncertainty. It is also the contention of the workmen which is not very strongly denied by the management that the electric connection of at least two of the assembly lines was disconnected and a section of the workmen were rendered idle. Such idleness may or may not lead the workmen to resort to a strike which in its turn may either be a legal or illegal one. But the fact remains that the lock out was declared as a consequence of abstention of the workmen from the work and the enforced illness was caused because of the desire of the management to restructure production and the assembly line. But the fact remains that the lock out was declared as a consequence of abstention of the workmen from the work and the enforced illness was caused because of the desire of the management to restructure production and the assembly line. This restructuring which may have caused a strike. which led to the declaration of lock out, is intimately connected with issue nos. 4, 5 and 6. If so then the cause of the lock out would disappear if these issues are resolved by the tribunal by adjudication. This aspect has not been emphasised either by the petitioner or the State. 33. It has been urged by the petitioners that the State made a self defeating argument inasmuch as the State on the one hand contended that the wide issues could be crystalised from the pleadings of the parties and on the other hand the Stale contended that there were in existence several disputes which were not crystalised at the time of passing of the order under s. 10(3) which would justify the order under s. 10(3). It is not necessary to go into that aspect of the matter as I have already observed that issue nos. 4, 5 and 6 of the order of reference are intimately connected with the declaration of the lock out whether as a sequent to an illegal strike or not. 34. The petitioners pointedly urged that at the time of making the order of reference the appropriate Government was not aware of the real issues when the order under s. 10 (3) was made and if the industrial dispute itself could not be pin-pointed, no order under s. 10(3) could validly be passed. I have already clarified the position. Even the broad head of the issue, which according to the petitioners are merely 'topics', have been framed by the appropriate Government after perusing the file of the conciliation officer, then even these broad heads of the issues, nicknamed as 'topics' by the petitioners, are capable of not only being referred and to be crystalised later on but also these are the activities going on in the industry at the relevant time which impelled the appropriate Government to make the order under s. 10(3). 35. In view of the discussion made above I am of the opinion that the order made under s. 10(3) is valid, legal and proper. 36. 35. In view of the discussion made above I am of the opinion that the order made under s. 10(3) is valid, legal and proper. 36. The only other point urged by the petitioners is that before the order under s. 10(3) was made, the petitioners should have been given an opportunity to put forth their case before the appropriate Government and by not giving to the petitioners such opportunity the principles of natural justice have been flagrantly violated. 37. First, it must by noted that the statute itself does not require any opportunity to be given before an order under s. 10(3) is made and the principles of natural justice cannot be read into the provision of s. 10(3) if the legislature, in its wisdom, desisted from incorporating the same in the section itself. In matters of requisition under the provisions of the West Bengal Land (Requisition and Acquisition) Act 1948 (Act II of 1918), there is no provision for giving any opportunity to the owners of the land before their property can be requisitioned and/or acquired. The Hon'ble Supreme Court in the case of Sachindra Mohan Nandy v. The State of West Bengal & ors. reported in AIR 1971 SC 963 has upheld the validity and constitutionality of the provision of the said Act and held that there was always an opportunity reserved unto the affected person to make a representation even after the- order is made. Even after an order under s. 10(3) is made the management can always approach the appropriate Government to apprise it of the state of affairs and can persuade the authority to recall the order made under s. 10(3). This aspect of the matter has not been higher lighted by any of the parties. 38. The petitioners have referred to the case of In Re : Gourepore Co. Ltd. and Nuddea Mills Co. Ltd. reported in 1989 (II) CHN page 115 wherefrom they wanted to urge that the said case is an authority for the proposition that opportunity of a fair hearing has to be complied with. 39 First of all I am of the opinion that the said case does not categorically lay down any proposition that right of hearing has to be given to the management before an order under s. 10(3) can be made. 39 First of all I am of the opinion that the said case does not categorically lay down any proposition that right of hearing has to be given to the management before an order under s. 10(3) can be made. The said case, in the facts and circumstances of the said case, has found that opportunity in fact was given to the management during the conciliation proceedings to put forth their view points on the matter and after considering the same the• order under s. 10(3) was passed respectfully agree with the observations made in the said decision 'and hold that in the instant case also during the protracted and prolonged conciliation proceedings ample opportunity was given to the management to ventilate their view point and no further hearing, was called for in the facts and circumstances of the case. Further the management declared the lock out rather in a high handed way, and abruptly even during the continuance of the conciliation proceeding, which, according to the scheme of a social welfare legislation is not permissible. I keep the question as to whether the application of the principle of natural justice into s. 10(3) is desirable, open, but I hold that the in the facts and circumstances of the instant case such opportunity was given to the management. In any case, the decision of the Calcutta High Court does not distinguish the ratio of the decision in Sachindra Mohan Nandy's (supra) case and as such the said principle also govern the instant case. So this contention of the petitioners also fail. 40. In the circumstances, all the points raised by the petitioners fail as a result of which the application also fails and is rejected. The interim orders already passed are vacated. There will, however, be no order as to costs. Application rejected.