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TMI Blog1988 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979 made under Section 4-K of the Act referred the said dispute for adjudication to the Labour Court, Meerut. The question which was referred to the Labour Court read as follows: Whether the termination/removal from work of the employee Shri B.P. Rajwanshi by the employers by their Order dated 4.4.1977 is justified and/or legal? If not, to what benefits/damages is the concerned employee entitled to and with what other details? 3. On the basis of the pleadings filed by the parties, the following issues were framed by the Labour Court: 1. Was Shri B.B. Rajwanshi not a workman as defined in the U.P. Industrial Disputes Act? If so has this Court jurisdiction to try this case? 2. Did Shri B.B. Rajwanshi not make efforts to minimise the losses due to unemployment? 3. To what relief, if any, is Shri B.B. Rajwanshi entitled? 4. Has Shri B.B. Rajwanshi been retrenched? If so, how does it affect the case? 4. After recording the evidence adduced by the parties and hearing the arguments the Labour Court held (i) that the appellant was a workman as defined in the Act (ii) that the termination of the services of the appellant was illegal and (iii) that the appellant was ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Order dated 16,8.1985 transferring the case from the Labour Court, Meerut to the Industrial Tribunal, Meerut. Aggrieved by the order remitting the award to the Labour Court and the subsequent order transferring the case from the Labour Court, Meerut to the Industrial Tribunal, Meerut, which had the inevitable result of delaying the proceedings which had gone on for six years by then and which exposed the appellant to the risk of losing the benefit of the award itself, the appellant filed a writ petition on the file of the High Court of Allahabad in Civil Miscellaneous Writ Petition No. 13975 of 1985 questioning the Order dated December 5, 1984 passed under Section 6(4) of the Act and the Order dated August 16, 1985 transferring the case from the Labour Court, Meerut to the Industrial Tribunal, Meerut. The High Court by its Judgment dated May 23, 1986 dismissed the Writ Petition filed in respect of the order made under Section 6(4) of the Act, but set aside the order of transfer passed by the State Government. Aggrieved by the judgment of the High Court upholding the order passed under Section 6(4) of the Act, the appellant has filed this appeal by special leave. 6. It may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule or the Second Schedule for adjudication. It provides further that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it so thinks fit, make the reference to a Labour Court. Section 6 of the Act which is relevant for our purpose reads thus: 6. Awards and action to be taken thereon (1) Where an industrial dispute has been 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. (2) The award of a Labour Court or Tribunal shall be in writing and shall be signed by its Presiding Officer. (2-A) An award in an industrial dispute relating to the discharge or dismissal of a workman may direct the setting aside of the discharge or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Tribunal as required by Sub-section (3) of Section 6 of the Act. Sub-section (4) of Section 6 of the Act, the validity of which is questioned before us empowers the State Government to remit the award for reconsideration of the adjudicating authority before its publication and that authority shall after reconsideration submit its award to the State Government. Thereafter the State Government is required to publish the award in the manner provided in Sub-section (3) of Section 6 of the Act. Sub-section (4) of Section 6 of the Act does not require the State Government to hear the parties before passing an order remitting the award for reconsideration of the adjudicating authority. It does not require the State Government to give reasons for remitting the award. It does not also require the State Government to inform the adjudicating authority the specific points on which the adjudicating authority has to reconsider the award. The said Sub-section also does not impose any restriction on the scope and nature of the proceeding that has to take place before the Labour Court or the Industrial Tribunal after the award is remitted to it by the State Government. In a given case it may be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equences would have ensued if the award had been published in the Official Gazette and the parties had been allowed to question its validity before the High Court under Article 226 of the Constitution of India or before the Supreme Court under Article 136 of the Constitution of India. The parties were not given notice by the State Government to show cause why the award should not be remitted to the Labour Court again for fresh consideration. In fact, the appellant had not been even informed about the contents of the award before the Government passed its order under Section 6(4) of the Act. The order of the State Government also does not state why and on what points the State Government was not satisfied with the award and the questions on which the Labour Court was required to reconsider its award. 10. It is urged on behalf of the appellant that the wide and arbitrary power conferred on the State Government under Section 6(4) of the Act without any guidelines is liable to be misused and, therefore, it is liable to be struck down on the ground that it is violative of Article 14 of the Constitution of India. It is further stated that there was no justification to confer such unli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority has got to record reasons for what he does. This safeguard in our opinion is hardly effective; for there is no higher authority prescribed in the Order who could examine the propriety of these reason and revise or review the decision of the subordinate officer. The reasons, therefore, which are required to be recorded are only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person. It was pointed out and with perfect propriety by Mr. Justice Mathews in the well-known American case of Yick Wo. v. Hopkins 118 U.S. 356 that the action or non-action of officers placed in such position may proceed from enmity or prejudice, from partisan zeal or animosity, from favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently the injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation. In our opinion, the provision of Clause 4(3) of the Uttar Pradesh Coal Control Order must be held to be void as imposing an unreasonable restriction upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the discretion is conferred on it. This argument, however, is not of any assistance to the State Government in this case because even though the reason for remitting the award may be a reason connected with industry or labour it can still be used arbitrarily to favour one party or the other. The ground for remitting the award should be one corresponding to a ground mentioned in Section 16 of the Arbitration Act, 1940; otherwise the power is capable of serious mischief. The facts of the case before us themselves serve as a good illustration of the above proposition. As mentioned earlier, there were only two main issues which arose for consideration before the Labour Court; (1) whether the appellant was a workman; and (2) whether his services had been validly terminated. After recording the entire evidence adduced by both the parties, the Labour Court had recorded its findings on both the issues in favour of the appellant. From the prayers made by the Management before the Labour Court after the case was remitted to it, it is seen that the Management wanted to adduce additional evidence before the Labour Court in support of its case. It was not the case of the Management that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 947) in respect of an industrial dispute pending adjudication by the Tribunal constituted for that purpose notwithstanding Section 21 of the General Clause Act, 1897. In that case Gajendragadkar, J., as he then was, speaking for the Court observed at Pages 1204-1205 thus: Apart from these provisions of the Act, on general principles it seems rather difficult to accept the argument that the appropriate government should have an implied power to cancel its own order made under Section 10(1). If on the representation made by the employer or his workmen the appropriate government considers the matter fully and reaches the conclusion that an industrial dispute exists or is apprehended and then makes the reference under Section 10(1), there appears to be no reason or principle to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by itself. In dealing with this question it is important to bear in mind that power to cancel its order made under Section 10(1), which the appellant claims, is an absolute power; it is not as if the power to cancel implies the obligation to make another reference in respect of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17(1) of the Industrial Disputes Act, 1947 was that a duty was cast on Government to publish the award within thirty days of its receipt and the provision for its publication was mandatory and not merely directory. When an agreement had been arrived at between the parties, though not in the course of conciliation proceedings, it became a settlement as per the definition under Section 2(p) and Section 18(1) of that Act laid down that such a settlement would be binding on all the parties to it. this Court in order to resolve the conflict between the effect of Section 2(p) of that Act and of Section 18(1) of that Act held that the only solution was to withhold the award from the publication and that such a course did not in any way affect the mandatory nature of the provisions under Section 17 of that Act. In the case before us there was no settlement arrived at between the appellant and the Management which made the publication of the award unnecessary. 18. There is one other good reasons for taking the view that without any guidelines it would not be appropriate to confer power on the State Government to nullify virtually the effect of an award by exercising its power under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (5) of Article 371-D is therefore clearly violative of the basic structure doctrine. 20. Even though the decision of the Labour Court or the Industrial Tribunal in the present case cannot be equated with the decision of the Administrative Tribunal constituted under Article 371-D of the Constitution of India in all respects, the danger of entrusting unguided and uncontrolled power to remit an award for reconsideration of the Labour Court or Industrial Tribunal can very well be perceived particularly where the award has gone against the State Government in a dispute arising out of an industry owned by it. 21. The scope of the jurisdiction and the power of the Labour Court while exercising the power of reconsideration in respect of an award remitted to it has been interpreted to be equivalent to the jurisdiction and power which it exercises in regard to the adjudication of a referred dispute by a Division Bench of the High Court of Allahabad in Star Paper Mills Mazdoor Sangh and Ors. v. Star Paper Mills Limited, Saharanpur and Ors. [1974] All L J 71. In the said decision the Allahabad High Court has held that the Labour Court is free to adopt such procedure as it thinks f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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