JUDGMENT 1. :- All the above-said three writ petitions have been filed by the petitioners M/s. Autolite (India) Ltd. The petitioner in all the three writ petitions is running industrial establishments in V.KI. Area, RUCO Industrial Area, Sitapura and RIICO Industrial Area Sanganer, Jaipur and is aggrieved against the order dated 13.8.1999 passed by the State of Rajasthan exercising powers under section 10-K of the Industrial Disputes Act, 1947. 2. For the reasons that the law point and facts of all the three writ petitions are common, the facts are being taken from S.B. Civil Writ Petition No. 4471/99. It was agreed by the parties that in view of the urgency in the matter, the writ petitions be decided finally at the admission stage. The parties have filed their pleadings and the arguments have been heard at the admission stage itself. 3. Annexure-10 dated 13.8.1999 is the impugned order. It is stated in the impugned order that the representation was made by the Labour Union (CITU) on 30.8.1996 to the effect that 143 employees were not allowed to enter the factory by the management and lateron the union presented a revised list of 296 workers. The management had also represented that certain workers were either not coming to the factory voluntarily or out of fear and certain workers have been suspended but only few workers were attending the factory. It is stated in the order that the conciliation proceedings were held but no solution could be found. Earlier, too, on 7.6.1997, similar powers were exercised under section 10-K of the Industrial Disputes Act for a period of one year which was challenged by the management petitioners in S.B. Civil Writ Petition No. 4590/97 and 4591/97 Autolite (India) Ltd. Vs. State of Rajasthan & Ors. The High Court vide its order dated 17.2.1999 had dismissed the writ petitions on the ground that because of the lapse of the period mentioned in the notification issued under section 10-K of the Industrial Disputes Act, the writ petition had become infructuous. Liberty was given to the State Government to pass any fresh order if the circumstances so warrant. It is mentioned in the impugned order that the meetings on different dates were held, parties were heard, notices were issued to both the parties to redress the situation, but the management was not cooperating. Liberty was given to the State Government to pass any fresh order if the circumstances so warrant. It is mentioned in the impugned order that the meetings on different dates were held, parties were heard, notices were issued to both the parties to redress the situation, but the management was not cooperating. Both the parties were called for 13.8.1999 to be present before the Labour Minister, Labour Secretary and the Labour Commissioner for holding the talks but the management had failed to attend the meeting and in view of the orders of the High Court dated 17.2.1999 and previous orders passed on 7.6.1997 and 8.8.1997 and for maintaining the proper protection and for keeping the industrial peace, it was necessary to invoke the powers under section 10-K of the Industrial Disputes Act. A direction was issued to M/s Autolite (India) Ltd. to maintain the position as it was on 17.8.1996 with a further prayer to the workers to present themselves for work within 10 days of the date of the notification. A further direction was given to the management to give Rs. 2,000/- as advance to the workers for keeping peace and not to resort to go-slow or tool down or to go on strike and similarly the management was directed not to victimise any of the worker. The management was further directed not to declare any lock-out or closure. 4. The above-said directions had been challenged in the writ petitions. Similar are the directions in regard to other two writ petitions in regard to the establishment run by the petitioner. The import of the impugned notification dated 13.8.1999 in all the writ petitions is similar and indentical. 5. It is the case of the petitioners in the present writ petitions that the petitioners were carrying on business peacefully till July 1996 and in the month of August 1996, some leaders of CITU resorted to strike on 20.8.1996. It is further submitted that at that time, out of the total employees working in each of the factory certain employees were already absent by joining the strike and certain employees had rejoined despite the call of the strike. Despite the request made by the management, the workmen did not come forward, to resume the duty and they involved themselves in criminal activities resulting in complaints to the authorities by the management. Despite the request made by the management, the workmen did not come forward, to resume the duty and they involved themselves in criminal activities resulting in complaints to the authorities by the management. It is stated that the situation had become out of control with the result that certain employees were suspended as well. 6. An industrial dispute was also raised on the complaint filed by the union. Conciliation proceedings were held. No settlement could be arrived at and a failure report was submitted as per Annexure-1. Even an industrial dispute was raised in regard to termination of service of 143 employees, which arose to 296 employees during the process of conciliation. The Government had passed an order on 7.6.1997 exercising powers under section 10-K of the Industrial Disputes Act, copy of which is attached as Annexure-2 of the writ petition wherein a direction was given to maintain the position as on 20.8.1996. It is stated that on the pressure put by the union, the order Annexure-2 was superseded by another order dated 8.8.1997, copy of which is attached as Annexure-3 and the date of maintaining status in regard to the parties was changed from 20.8.1996 to 17.8.1996. Orders Annexures 2 and 3 were challenged in the writ petitions as mentioned above which were ultimately decided by this court vide Annexure-4 on 17.2.1999, as infructuous. The writ petitions Nos. 4589/97, 4590/97 and 4591/97 were not decided on merits for the reasons that the life of the impugned order had since expired. However, it was observed by the learned Single Judge (justice Dalela J) that the orders under section 10-K of the Industrial Disputes Act can be passed by the State Government if in its opinion it is necessary and expedient to do so for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or maintaining the industrial peace. It was observed that the impugned orders in the earlier writ petitions Annexures 2 and 3 were passed by the State Government when the situation and the conditions enumerated under section 10-K were present and it was necessary or expedient to pass such orders. It was observed that the impugned orders in the earlier writ petitions Annexures 2 and 3 were passed by the State Government when the situation and the conditions enumerated under section 10-K were present and it was necessary or expedient to pass such orders. It was further observed that it was not known to the court whether those special or peculiar conditions and situations were still prevailing at the time of deciding the writ petitions and, therefore, a liberty was given to the State Government to pass necessary orders in accordance with the provisions of Section 10-K of the Act. 7. It is the case of the petitioners that even though they were called on 13.8.1999 at 11.30 a.m. and certain officers of the petitioners did present themselves in the office of the Labour Minister, but he was not available and the impugned order has been passed ex parte. The petitioners had explained the situation in Annexure-6 sent to the authorities stating therein the situation of the employees as they were placed at the time. 8. It is also one of the contentions of the petitioners that after passing of the order of the High Court on 17.2.1999, the Government had not conducted any enquiry summoning both the parties, even though the petitioners go to say that the petitioners were summoned with some record. It is stated that there was hardly any expediency for passing the order impugned for the reasons that the provisions of Section 10-K are meant for emergency provisions which cannot be invoked in the ordinary circumstances prevailing in the factory specially when there was no problem of maintaining any peace arising at any time and no outward incidence happened. It is the case of the petitioners that the writ petitioners are entitled to employ the labour under the Contract Labour Regulation and Abolition Act, 1970 and through certain contractors they are employing labour on contract and in such situation, no grievance can be made in regard to the terms and conditions of the labour employed through contractors and in such situation any dispute arising in regard to the service conditions of the contractor's labour, cannot be referred for adjudication for the reason that the petitioners do not become the principal employer. The impugned order is also challenged on the reason that there was no application of mind nor there was any material before the authorities concerned for passing such an order. It is the further contention of the petitioners that because of the lapse, omission and failure of the Government to refer the dispute raised by the union, after the failure of the conciliation proceedings, the petitioners cannot be burdened with such an impugned order which virtually is in the nature missing conditions unilaterally. A further contention has been raised that the circumstances had drastically changed for the reasons that certain employees were being proceeded under the disciplinary proceedings and whereas certain persons have either left the jobs or had resigned and, therefore, any order having retrospective effect could not be held to be valid. 9. Reply has been filed by the respondent Nos. 1 and 2. Preliminary objections have been taken by the respondent No.1 to the effect that instead of filing a writ petition direct in the High Court, the petitioner ought to have availed the remedy under the provisions of Industrial Disputes Act and should have asked the Government to refer the matter and has justified the orders passed under section 10-K of the Industrial Disputes Act. It is averred by the State that in view of the circumstances and because of the reason that there was no change what-so-ever in the situation ever since passing of earlier orders Annexures 2 and 3, the State was compelled to pass the impugned order. The State had also narrated the dates in Schedule R-A attached with the written statement, when the petitioner was called time and again to assist the authorities of the State for it proper order. It is denied that no enquiry was held as was required and in view of keeping the industrial peace, it had become necessary for the State to invoke the jurisdiction under section 10-K of the Industrial Disputes Act. It is stated that the petitioner company was actually exploiting the pathetic situation of the workers under the garb of employing the labour under the Contract Labour Act. Details had been given in Schedule A from 22.4.1999 onwards when an effort was made to hold the meeting. It is stated that the petitioner company was actually exploiting the pathetic situation of the workers under the garb of employing the labour under the Contract Labour Act. Details had been given in Schedule A from 22.4.1999 onwards when an effort was made to hold the meeting. As many as on 9 occasions for the purpose of discussion union was present on all the meetings, on three dates management was absent, on certain meetings the record was not produced by the management and ultimately the impugned order was passed. 10. Reply has also been filed on behalf of the union respondent No.2. Similar preliminary objections had been taken as had been taken by the State of Rajasthan and it is vehemently stated that the petitioner should have gone for an industrial dispute instead of filing writ petitions. The allegations levelled by the petitioners against the workers had been denied with the further submission that the petitioners had been resorting to unfair labour practice. It is stated that the Government had taken into account the additional factors after the dismissal of the writ petitions on 17.2.1999. There was no change of situation or the position in regard to the workers and the circumstances prevailing in the factory during the period when the writ petition was pending and, therefore, after dismissal of the earlier writ petitions the matter stood automatically revived for consideration. It is submitted by the union that the order impugned is legal. 11. The record of the department was produced for perusal. From the record it is clear that some demand notice was issued in the month of September 1996 and there were strained relations between the union and all the three establishments of the petitioners. Right from October 1996, the petitioners management had been writing to the Government agencies in regard to alleged violence and de-establishing the production activities and about the industrial peace. Number of incidences were narrated time and again by various letters written by the management of the company. There were counter allegations by the union. The union had been resenting the alleged unfair practice, victimization, suspension orders and about the fate of the persons who were not being allowed to join the duties. Meetings were held time and again. Lists of the workers were supplied by both the parties to the department. There were counter allegations by the union. The union had been resenting the alleged unfair practice, victimization, suspension orders and about the fate of the persons who were not being allowed to join the duties. Meetings were held time and again. Lists of the workers were supplied by both the parties to the department. Fastening of the criminal case on the workers and alleged violence were the allegations and counter allegations. It goes without saying that all the ingredients for which the provisions of Section 10-K of the Industrial Disputes Act could be invoked were existing and the Government had been holding meetings over meetings with both the parties and ultimately had come up with a decision to invoke the jurisdiction under Section 10-K of the Industrial Disputes Act vide orders Annexures-2 and 3 attached to the writ petition, which were challenged by the management and stay order was obtained. During the period when earlier writ petitions remained pending against Annexures-2 and 3, there was stalemate in the situation. None of the parties even made efforts to bring out any solution about the hundreds of workers who were alleged to have not been allowed to join the duties or suspended or disciplinary proceedings were being taken. The Government also remained silent spectator after filing of the earlier writ petition and obtaining stay order and even did not think to refer the matter for industrial adjudication even though under the circumstances it was the utmost duty of the Government to have applied its mind to the situation and should have referred the matter for adjudication on the disputed questions specially when the conciliation proceedings had failed. No record has been produced as to what action had been taken for making a reference after failure of the conciliation proceedings. It seems that the Government had just taken its hand when the earlier writ petitions were filed which had been decided as in fructuous on 17.2.1999 and choose to wait and see course. 12. The situation remained as it was before passing the orders Annexure-2 and 3 in the year 1997. After the dismissal of the earlier writ petitions as in fructuous with the observations by the Hon'ble Judge of this court in Civil Writ Petition Nos. 4590/97 and 4591/97, the union took up the matter once again with the department for some reasonable solution. The matter was again dealt with immediately thereafter. After the dismissal of the earlier writ petitions as in fructuous with the observations by the Hon'ble Judge of this court in Civil Writ Petition Nos. 4590/97 and 4591/97, the union took up the matter once again with the department for some reasonable solution. The matter was again dealt with immediately thereafter. The meetings were held between both the parties, enquiry was held. The management had declined to accept the position that certain number of employees were their workmen at all. They also mentioned the number of employees who were said to have left the job, but had not produced any record to substantiate the same either prior to 17.8.1996 or subsequent to 17.8.1996. The management had also come up with the plea that certain persons were also appointed only for a fixed time and had also given the number of workers who were either absent or who were removed from service etc. etc. This detail is found on the record itself. The fate of the workers remained as it was in August 1996 without there being any solution or change involving hundreds in numbers but the Government remained seized of this matter time and again. 13. The only solution that the State was able to find for the emergency purpose was to invoke the provisions of Section 10-K of the Industrial Disputes Act. It is true and as even held repeatedly by the Hon'ble Supreme Court that the invoking of the provisions of Section 10-K are temporary for a limited period and in emergency situation and efforts are to be applicable for the duration of the period of Section 10-K provisions to find a solution to the situation either by negotiation or by referring the matter to the appropriate Industrial Tribunal. After the action of the management of filing the writ petition and obtaining the interim stay, the Government also kept quiet. The sufferers were the employees for whom Section 10-K was invoked at the relevant time. There was stalemate. One year had passed during the pendency of the writ petition and time as mentioned in the earlier orders had lapsed. The writ petition was dismissed as in fructuous. The sufferers were the employees for whom Section 10-K was invoked at the relevant time. There was stalemate. One year had passed during the pendency of the writ petition and time as mentioned in the earlier orders had lapsed. The writ petition was dismissed as in fructuous. While dismissing the writ petition as infructuous when the situation remained as it was, the parties have been reverted to the same situation which was prevailing at the time of passing of Annexure-2 and 3 and ultimately ended in passing of impugned order Annexure-10. 14. Section 10-K reads as under: 1. Notwithstanding anything contained in the Act, if in the opinion of the State Government, it is necessary or expedient so to do, for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or maintaining industrial peace, it may by a general or special order, make provision (a) for requiring employers, workmen or both to observe for such period as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order, and (b) for prohibiting, subject to the provision in connection with any industrial dispute. (2) In case any industrial dispute is raised in respect of any provisions in the order of the State Government made under sub-section (1) within a period of three months of the order, it shall be referred by the Tribunal becomes enforceable. Provided, however, that the reference of the industrial dispute to adjudication shall not have the effect of staying the operation of the order.' 15. It does empower the State Government if it is necessary or expedient to do so for securing the public safety or convenience or maintenance of public order or essential supply and services to the life of the community or for maintaining employment or maintaining industrial peace requiring employers, workmen or both to observe such terms and conditions of employment as may be determined in accordance with the order. It also prohibits the lock out and closure. It also prohibits the lock out and closure. It also enables the State to refer the matter within a period of three months of the order to the Tribunal for adjudication, but during the period when the industrial dispute so referred remains pending for adjudication, the order passed under section 10-K remains intact and is not affected by the reference so made or if made. 16. The petitioner has rightly not challenged the validity of Section 10-K of the Industrial Disputes Act. The Supreme Court in the case of State of Uttar Pradesh and others Vs. Basti Sugar Mills Co. Ltd. and others Vol.19 FJR 211 was seized of provisions of Section 3 of the U.P. Industrial Disputes Act, 1947, which is analogous to Section 10-K of the Industrial Disputes Act as in the present case, had held that the State is empowered to issue direction for requiring employers, workmen or both to observe for such period as may be specified in the order. such terms and conditions of employment as may be determined does not operate retrospectively and must be held to be prospective operational only. The Supreme Court also observed that this clause does not apply where the industrial dispute had arisen and had further held that there may be emergency and the Government may have to act promptly for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or maintaining employment and, therefore, it was necessary to arm it with additional powers for dealing with such an emergency and for that purpose Clause (b) of Section 3 was enacted in the U.P. Industrial Disputes Act. The order made, thereunder, would be in the nature of temporary or interim order and as would be dear from the words 'for such period as may be specified'. The provisions were held to be intra vires and not violative of any right of the employer being temporary in nature and invoked for emergency purposes. It was further observed that so far the retrospective operation was concerned, the matter is to be looked as to when the dispute had actually arisen. The provisions were held to be intra vires and not violative of any right of the employer being temporary in nature and invoked for emergency purposes. It was further observed that so far the retrospective operation was concerned, the matter is to be looked as to when the dispute had actually arisen. It was also observed that the normal way of dealing with the industrial dispute under the Act would be to have it dealt with judicially either by conciliation or by adjudication and that judicial process cannot be circumvented by resort to executive action. However, in case the emergency provisions are invoked, the Government was competent to do so in the circumstances, if so warranted. 17. For the arguments advanced by the learned counsel for the petitioners that there was no material and no subjective satisfaction of the State to invoke such provisions, reliance is placed on the decision in the case of M/s Prem Spinning & Weaving Mills Vs. State of U.P. & others. (1973) 26 FLR 395. 18. In my opinion this argument is not available to the petitioners for the reason that even according to the petitioners and the correspondence exchanged between the parties which is on record and the numerous meetings held in between the parties at the instance of the Government and the apprehension of the petitioners about the industrial peace de-establishing the production and counter allegations of the workmen of closing the factory gates to the existing employees and instead allowing the employees of the contractor to be employed for the work, there was sufficient material before the Government, after making enquiries, to invoke the jurisdiction under Section 10-K for the emergency purpose and to form the opinion. After going through the record as produced in regard to all the three establishments, I am satisfied that there was proper application of mind by State authorities before invoking the powers under Section 10-K of the Industrial Disputes Act. 19. From the circumstances of the case and as already discussed above, the contention of the petitioners cannot be accepted that the impugned order Annexure-10 operates retrospectively. In the present case the dispute and the emergency situation did arise in the year 1996 when ultimately the Government had passed the earlier orders under Section 10-K vide Annexures-2 and 3 which were challenged by the present petitioners in the earlier writ petitions. In the present case the dispute and the emergency situation did arise in the year 1996 when ultimately the Government had passed the earlier orders under Section 10-K vide Annexures-2 and 3 which were challenged by the present petitioners in the earlier writ petitions. The matter remained pending in the High Court without adjudication on merits. The situation as it prevailed in the year 1996-97 remained as it was without there being any solution or change. The main contentions or the dispute between the parties were deemed to be held in abeyance by the stay orders of this court and as soon as the writ petitions were dismissed as infructuous for having expired the life of Annexures-2 and 3, the dispute which was neither sent for adjudication to any Industrial Tribunal nor any movement was made during all the time when the matter was pending in the High Court surfaced automatically and immediately. Even High Court had given a liberty to the State to reconsider the matter and to pass a fresh order if the circumstances so warrant. There was no unchanged situation after the year 1996. The Government once again called the parties, obtained the data, meetings were held time and again and as is revealed from the record, none of the party was prepared to submit or even to accommodate. Hundreds of employees remained at the gate of the factories as is alleged right from 1996. The emergency situation which was to be solved was only suppressed for the time being during the pendency of the earlier writ petition when the identical orders Annexures-2 and 3 were challenged and remained in stayed. The State has only revived the orders earlier passed which situation needed a proper solution at the hands of the adjudicating machinery. In such situation if the petitioner itself has allowed the emergency or temporary orders to be put in abeyance by obtaining the orders from the High Court and after dismissal of the writ petitions filed by the petitioners and the liberty having been granted by the High Court to re-assess the circumstances, it can be said that the Government had not acted illegally in passing the impugned order under section 10-K which order admittedly it was authorised to pass and, therefore, the contention of the petitioners that the order is retrospective cannot be accepted. The impugned order carry the same import as had been mentioned in the earlier orders but some how could not be implemented because of the impression that the orders had been stayed by this court. 20. However, there is some force in the argument of the counsel for the petitioners to say that the workers who had resigned or were under suspension because of the disciplinary proceedings cannot be directed to be taken back in service if any action had been taken between the period of 17.8.1996 and till the orders Annexures-2 and 3 were passed. The State Government is authorised to pass any order in regard to employment or service conditions while exercising powers under the provisions of Section 10-K of the Industrial Disputes Act, but if the effect of the orders is to put back in service of the persons who had resigned or were under suspension or whose services stood terminated under any provisions of law or because of the contract of service, such effect could not be given by passing a general order as is in the impugned order Annexure-10. To my mind any of the worker who had either resigned or was under suspension or was dismissed between the period of 17.8.1996 to the date of 7.6.1997 when the order Annexure-2 was passed, was not entitled to the benefit of the impugned order annexure-10 or even of the earlier order Annexure-2 or Annexure-3. Similarly in writ petition No.4472/97 impugned notification dated 13.8.99 shall not be made applicable to workers who had either resigned or were under suspension or were removed or terminated prior to 19.8.96 and between the period 19.8.96 to 7.6.97. Such position shall also be applicable in writ petition No.4473/99 to the effect that impugned notification cannot be made applicable to employees prior to 24.8.96 and between the period 24.8.96 to 7.6.97. 21. For the fore-going reasons and discussions, I am of the view that the impugned order Annexure-10 in all the writ petitions were passed legally except that it shall not be made applicable to the employees who had either resigned or were under suspension or were removed or terminated prior to or between the periods as mentioned above. 22. 21. For the fore-going reasons and discussions, I am of the view that the impugned order Annexure-10 in all the writ petitions were passed legally except that it shall not be made applicable to the employees who had either resigned or were under suspension or were removed or terminated prior to or between the periods as mentioned above. 22. Before parting with the judgment it is essential to advise to the Government to refer the matter of the dispute between the parties in regard to the employment and non-employment or other matters of which the parties may be at issue to the appropriate Labour Court or Industrial Tribunal within three months of this order which reference shall be comprehensive in nature and the appropriate Tribunal on receipt of the reference shall decide the same preferably within one year. It goes without saying that if the reference is so made, the parties shall cooperate to end the dispute between themselves.With the above-said observations, the writ petitions are disposed of. No costs.Petition Disposed Of. *******