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TMI Blog1950 (11) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... matters refd. to in his letter. Thereupon, on 20-5-1947 by G. O. Ms. 2227, Development, the so-called dispute was refd. to a tribunal with the following order of reference : Whereas an Industrial Dispute has arisen between the workers managements of the Cinema talkies in the Madras City in respect of certain matters : And whereas in the opinion of H. E. the Governor of Madras, it is necessary to refer the said industrial dispute for adjudication ; Now, therefore, in exercise of the powers conferred by Section 7(1) (2) read with Section 10(1)(c), Industrial Disputes Act, 1947 (Central Act XIV [14] of 1947) His Excellency the Governor of Madras hereby constitutes an Industrial Tribunal consisting of one person, namely, Sri Dewan Bahadur K.S. Ramaswami Sastri, Retired Dist. Ses. J. directs that the said industrial dispute be refd, to that tribunal for adjudication. 3. The Industrial Tribunal may, in its discretion, settle the issues in the light of a preliminary enquiry which it may hold for the purpose thereafter adjudicate on the said industrial dispute. 4. The Comr. of Labour is requested to send copies of the order to the Managements of Cinema Talkies co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. came up to this Ct. to quash the proceedings before the learned Mag. our learned brother Somasun-daram J. considered that the case involved important questions of law which necessitated its decision by a Bench that is how this cri. misc. petn. comes on before us for disposal. 3. Before elaborating the contentions on either side, it will be useful to have a bird's eye view of the legislative provisions on which the prosecution justifies the filing of the charge sheet. Prior to 1926, on the anvils of the statute book in India, there had been no enactment providing for the registration recognition of trade unions defining the law relating to such trade unions, though acts of Parliament on the subject of trade unions were prevalent in England long prior to that. Act XVI [16] of 1926 provided for the registration of trade unions, the rights liabilities of regd. trade unions, the regulations regarding the same various other matters. The expressions trade dispute trade union were also defined, the former meaning any dispute between employers workmen, or between workmen workmen, or between employers employers which is connected with employment or non-emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : If any industrial dispute exists or is apprehended, the appropriate Govt. may, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof or (b) refer any matter appearing to bo connected with or relevant to the dispute to a Ct. for enquiry; or (c) refer the dispute to a Tribunal for adjudication : Provided that where the dispute relates to a public utility service a notice under Section 22 has been given, the appropriate Govt, shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient to do so, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced. Section 15 deals with the duties of the tribunals of which Sub-section (2) states that on receipt of an award from the tribunal, the appropriate Govt. shall, by order in writing, declare the award to be binding. There is a provision that where the appropriate Govt. is a party to the dispute, they have to perform certain other duties as well. Section 19, Sub-section (3) states that an award declared by the appropriate Govt. under Section 15 to be bindin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted in accordance with the provisions of the aaid Act or the dispute to which the proceeding, award, act or thing relates was not refd. to the Tribunal in accordance with such provisions. Nothing contained in this section shall be deemed to invalidate any decision or order of a Ct. which became final before the commencement of this Act. 6. All awards passed by Industrial Tribunals mentioned in the schedule hereto which could not be enforced on account of the proceedings before the H. C. shall be current valid for a further period of one year from the commencement of this Act. Schedule :--1, The Motor Transport award. 2. The award in the dispute between the Managements of Cinema theatres workers. 3. The awards in the disputes between the Beedi workers managements. 4. The awards in the disputes between the Cigar workers managements. There can be no doubt that the second item of the schedule, viz., the award in the dispute between the managements of cinema theatres workers, refers to the award which is the subject-matter of consideration in this case. More recently, the Parliament of India has passed Act XLVIII [48] of 1950 providing for the establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at nothing in Sub-clause (f) shall prevent the State from making any law imposing reasonable restrictions in the exercise of any of the rights conferred by the aaid sub-clause either in the interests of the general public or for the protection of the interests of any scheduled tribe. 5. It is contended before us that the members of the Cinema Employees Asaocn. cannot be said to be the general public therefore restrictions in their interests cannot come within the ambit of either Clause (5) or Clause (6). For this argument our attention was invited to the, observations contained at p. 311 of 32 Halsbury's Laws of England, Para. 429 at p. 311 makes a reference to industrial Cts., arbitration Cts. of enquiry, what we are asked to decide is that since in England, without the consent of both the parties, the reference of a dispute for settlement to the industrial Ct. for arbitration is not possible, the provisions in the Indian Act by which the appropriate Govt. is authorised to refer a dispute without the consent of both the parties is illegal. We are not satisfied that Sub-clauses (f) (g) of Article 19(1) of the Constitution have any bearing on the present question. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence without specifying what the dispute was. The reference stated that industrial disputes have arisen between the workers management of certain engineering firms type foundries in the province of Madras industrial disputes are apprehended in the rest of the Engineering firms type foundries in respect of certain matters therefore an industrial tribunal is constituted the disputes are refd. to such tribunal for adjudication. The learned Judges held that such a reference does not give jurisdiction, for before making the reference, the Govt, must have reason to believe that in a particular business a definite dispute is known to exist or is apprehended by reason of demands discussions taking place amongst the workers the management. This decision was followed in Kandan Textiles Ltd., v. Industrial Tribunal, Madras, by the Hon'ble the Chief Justice Mack J. Here also the reference was in similar terms the learned Judges refd. to accepted with approval the dictum in Ramayya v. Kutty Rao (Engineer) Ltd., 1949-1-M. L. J. 231 at pp. 231 232 : (A. I. R. (36) 1949 Mad. 616). The Govt. notfn. in the two cases already referred to are practically in the same ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the award that was impugned before the F. Ct, is printed at p. 368 of the report. There also all that is stated is that an industrial dispute has arisen between the India Paper Pulp Co. Ltd..... their dischaged workmen, etc. In considering whether an award passed on such a reference is valid or not, his Lordship the learned Chief Justice of India observes as follows : On behalf of the applt., it was contended that there was no jurisdiction in the Industrial Tribunal to decide anything because firstly, no dispute was refd. to the Tribunal. This is admittedly a technical defence is based on the wording of the order of the Govt. of West Bengal dated 3-1-1948. In this connection it was pointed out that the Order of 3-1-1948, of the Govt. of West Bengal did not mention any industrial dispute. Secondly, the order, as worded, was only an order of appointment there were no words of reference to the Tribunal. It was argued that the words 'and it is expedient that the said dispute should be refd. to a tribunal' did not constitute a reference ; they were in the preamble did not form an operative part of the order. The order is far from satisfactory is not carefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o agree with his conclusions that the trend of decisions of this Ct., exemplified in the three cases refd. to by me above has not been overd by their Lordships of the F. C. I. therefore, do not propose fco examine the applicability of that case in any detail, contenting myself with agreeing with my learned brother's conclusion on this point. 9. Our conclusion that the award is void inoperative is reinforced by the fact that by Act, XII [12] of 1949 the Legislature intervened to declare as valid, awards of the kind which have become invalid inoperative on account of the reference not being based upon any tangible industrial dispute. Act XII [12] of 1949 itself contemplates, though not explicitly but by implication, that the present award which is mentioned as the second item in the schedule cannot be enforced on account of H. C. proceedings. It seems to us, therefore, that the contention of the learned advocate for the trade union as well as the State Prosecutor that the decision of the F. C. in India, Paper Pulp Co. Ltd. v. India Paper Pulp Workers Union, 12 F. L. J. 367 : (A. I. R. (36) 1949 F. C. 148) would go to show that the invalidity of the award which would necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trator on account of the absence of a dispute. Even there the award had not been set aside by proper proceedings before this Ct. We are inclined to agree with the learned Judges that even if no proceedings had been taken to set aside the award it is possible to quash the criminal proceedings instituted on foot of it, if it is found that the award is the result of conferment of jurisdiction which did not pass on to the arbitrator on account of the absence of any dispute between the contesting parties. 10. The second line of argument on which the initiation of proceedings has been justified by the counsel for the trade union as well as the State Prosecutor is that even if the award was void inoperative, Sections 5 6 of Act XII [12] of 1949 which amended the Industrial Disputes Act (Act XIV [14] of 1947) have made the awards mentioned in the schedule thereunder current valid for a period of one year from the commencement of that Amending Act. It is clear from a reading of those sections that wherever the Ct. has declared awards to be invalid inoperative on account of the fact that no existing dispute was refd. to them, such awards are invalid as a result of the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of each case, but a naked arbitrary power to give or withhold consent not only as to places but as to persons. 12. In Truax v. Gorrigan, 257 U. S. 312, Taft C. J., considered the question about the validity of an Act of State Legislature which prohibited interference by injunctions in disputes between employers employees concerning the terms or conditions of employment came to the conclusion that the impugned law resulted in the recognition of one set of actions against ordinary tort-feasors another set against tort-feasors in labour disputes. It is there held that if employers were denied the right to obtain injunctions while such a right was permitted to the employees, then there was the denial of equal protection of laws to one set of persons placed in similar circumstances. What the prohibition against the denial of equal protection of the laws to all persona situated in similar circumstances connotes is that all persons subject to such legislation shall be treated alike under like circumstances conditions both in the privileges conferred in the liabilities imposed. See Hayes v. Missouri, (1887) 120 U. S. 68. Applying these principles to the interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repealed or amended by a competent Legislature. This is subject to the provision that such laws shall not be repugnant to the Constitution. Therefore, even if Act XII [12] of 1949 is not void but is valid operative, still it has to be considered whether in virtue of the provisions contained in Section 107, Govt. of India Act, re-enacted in a similar form in Article 254 of the Constitution, the Amending Act, viz., Act XII [12] of 1949 can have any validity or not. At the time Act XII [12] of 1949 was passed the Govt. of India Act 1935, as adapted by the India (Provisional) Constitution Order, 1947, was in force. Section 107 of that Act related to inconsistency between Dominion laws Provincial or State laws. What was enacted there was if any provision of a Provincial law is repugnant to any provision of a Dominion law, which the Dominion Legislature is competent to enact or any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of the section, the Dominion law, whether passed before or after the provincial law, or, as the case may be, the existing law shall prevail the provincial law to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roprietary Mines, (1918) A. C. 591 at p. 596 : (87 L. J. P. C. 117), Lord Sumner observes thus at p. 596 of the Report : In the opinion of their Lordships, it is not a legitimate interpretation of mere amending provisions to hold that they completely alter the character of the principal law unless clear language is found indicating such an intention. The amending words, wide as they are, do not evince any intention to make so radical a change as would be involved if there were thrust into powers to regulate future operations, a solitary power, etc. Then again at the very outset of the judgment, at p. 595, the following sentence occurs with regard to the amending Act: The latter amended the former, is to be read aa one with it Therefore the principle of law is clear that amending statutes should be read as parts of the original statutes if that is so, the new Section 5 of Madras Act XII [12] of 1949, if it is to be read along with Section 10(1) of Act XIV [14] of 1947, would be contradictory to the earlier provision if a statute contains two such contradictory provisions it is left to the Ct. to infer from a reading of the other provisions of the statute, which ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to fit into the framework of the original statute as they seem to be repugnant contradictory to the provisions of Act XIV [14] of 1947. 15 a. Another alternative argument put forward by Mr. K.S. Jarayama Aiyar is that Act XII [12] of 1949 is invalid because it is not within the legislative competence of the province of Madras to legislate for a subject like the industrial disputes. He relies upon the following expression in Section 107(1), Govt. of India Act, 1935: ... with respect to one of the matters enumerated in the concurrent Legislative List. The matters enumerated in the Concurrent List regarding Labour Legislation are Entries 27 29 in List III, Schedule 7, which are equivalent to Entries 24 22 in List III, in Schedule 7 to the Indian Constitution. Entry 27 in List III Govt. of India Act is as follows : Welfare of labour ; conditions of labour; provident funds; employer's liability workmen's compensation; health insurance, including invalidity pensions; old age pensions. Entry 29 relates to trade unions ; industrial labour disputes. Therefore, if Act XII [12] of 1940-is a legislation wish respect to one of the matter enumerated in the concur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time it was committed. The emphasis is therefore, more on the aspect that nobody shall be convicted, though legislation to that effect can be passed making offences ex post facto punishable. It is pointed out that Article 1, Section 9, Sub-section (3) of the Constitution of the U. S. A. which reads no bill of attainder or ex post facto law shall be passed completely prohibits the passing of an ex post facto law. According to the learned counsel the Indian Constitution does not put a restraint upon the passing of the law but tbe prohibition is against a person being convicted by an ex post facto law. It is not necessary for us, for the purposes of this case, to express any definite opinion as to whether there is in fact any real distinction between the ideas objects sought to be inculcated in the Constitution of the U. S. A. our country. In the view which we have taken that Act XII [12] of 1949 is ultra vires, the question of ex post facto legislation does not arise. We had to consider the question of ex post facto legislation in In re Velayudam, there we have held that there is no prohibition so far as such legis-lation was concerned prior to 26-1-1950, whatever might b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent powers that Section 561-A, Criminal P. C., is not intended for circumstances like this. It has been held by this Ct. in Ramanathan v. Sivarama, 47 Mad. 722 : (A.i.r. (12) 1925 Mad. 39 : 25 Cr. l. J. 1009) Re Kuppusami Aiyar, 39 Mad. 561: (A. I. R. (3) 1916 Mad. 408 : 16 Cr. L. J. 477) other cases that a charge sheet which the Ct. had no jurisdiction to entertain could be quashed under Sections 435 439, Criminal P. C., therefore the proper remedy should be an appln. for revn. under those sections. A F. B. of this Ct. in Thiruven-gadasami v. Municipal Health Officer', Karai-kudi, 1949-1 M. L. J. 488 : (A. I. R. (36) 1949 Mad. 547 : 50 Cr. L. J. 823 F.B.) has considered the question as to the limits under which an accused person can question the order of the statutory body, the failure to comply with which has been the foundation of the prosecution. It is there held that if, on the face of it the order that has created the offence is illegal, or if the statutory body made the order without jurisdiction, then the accused can question it when the prosecution is launched. We have already found that the award was made without jurisdiction therefore it is open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. But as against these decisions, the learned State Prosecutor the learned counsel for the South India Cinema Employees Assocn. have invited our attention to the decision of the F. C. reported in India Paper Pulp Co. v. India Paper Pulp Workers Union, 12 F. L. J. 367 : (A.I.R. (36) 1949 F. C. 148), on which they placed great reliance for their contention that the order of reference made by the Govt. the award passed thereon are in accordance with Section 10(1), Industrial Disputes Act, 1947, therefore Section 29 of the said Act applies to the case that the prosecution for non-implementation of such an award is therefore justified. But a careful perusal of the said decision would show that, on the facts of the present case, it does not lend any support to the con-tention of the learned State Prosecutor the learned counsel for the trade union. In that case, the order of reference issued by the Govt. of West Bengal clearly seta out that there was an industrial dispute between a particular company, namely, the India Paper Pulp Co. Ltd., Managing Agents, Messrs. Andrew Yule Co. Ltd., 8 Clive Road, Calcutta, their discharged workmen whose names were mentioned in the lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute may be refd. for adjudication. The terms quoted above clearly do not refer to any industrial dispute having arisen between the petnr. before us his workmen. Even the elaborate notfn. that has been published in the Fort St. George Gazette in pursuance of the above order does not improve matters except that para, 2 thereof gives the direction to the tribunal to have a preliminary enquiry to settle issues for adjudication. It is true that according to the decisions of the F. C., Section 10(i) of Act XIV [14] of 1947 does not require that the particular dispute should be mentioned in the order, But that decision does lay down that it would be sufficient, if the existence of a dispute the fact that the dispute is refd. to the tribunal are clear from the order. Can it be said that the order now under consideration or the notfn. in question is clear on the point of the dispute between the petnr. his workmen? Analysing the order of reference of the Madras Govt. now under consideration it is obvious that there is no mention of the existence of any dispute between the petnr. his workmen. It will be seen that even the name of the petnr. does not find a place in the order of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exists. It cannot be denied that these particulars are completely absent in the order of reference the notfn. that is now under consideration by us. 24. In this connection we were, however, requested to look, along with the order of reference, into the letter of the Comr. of Labour, Madras, C.8-7611/45 dated 13-5-1947, which is refd. to in the said order of reference which is claimed to form part parcel of that order. We have carefully perused the said letter of the Comr. of Labour dated 13-5-1947 addressed, to the Joint Secretary to Govt. Development Dept., Madras. We think it may be useful to extract the said letter in its entirety for purposes of discussion, The letter reads as follows: The South Indian Cinema Employees Assocn. submitted a memo, on 8-11-1946 in which the workers-demanded increased wages dearness allowances, annual bonus of three months' wages, increased leave facilities, provident f und the adoption of proper procedure in imposing punishments. The representatives of the employers the employees Assocn. met me on several occasions when the demand of the workers were discussed, finally on 28-4-1947 the following suggestions were made by me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n enjoy the regular increment in fair graded scales of salaries be also eligible for promotions automatically; (10) No employee shall be dismissed or discharged from service unless a proper charge is made out by the employer an enquiry be held thereof of which there shall be an official of the Union present. As the employers have not accepted even the minimum terms suggested by me as the employees are reative, apprehend that they may strike work at any time. I, therefore, suggest that the above demands made by the workers may be refd. to a,n Industrial Tribunal for adjudication I have advised the workers to defer further action on their notice, pending the orders of Govt. Sri Diwan Bahadur K.S. Ramaswami Sastri, Eetd. Dist. Ses. J. (Royapettah High Road, Madras) or Sri N. Balarama Reddi, Retd. Dist. Ses. J., (8/11 Ganran Smith Road, Cathedral Post) may be appointed as the sole member of the Special Industrial Tribunal to adjudicate on this dispute. 25. It will be seen from a perusal of this letter of the Labour Comr. that he sets out in the first instance that the South Indian Cinema Employees Assocn. submitted a memo, to the Labour Comr. in which the work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Labour Comr. proceeds next to mention that the representative of the Union met the Comr. on 13-5-1947 reported that the Employee's Assocn. had decided to go on strike on any day after 30-5-1947, if the ten demands mentioned by them in their report enumerated in the Comr.'s letter were not conceded. Immediately thereafter, the Labour Comr. would appear to have come to the conclusion fchafc very moment, fchafc as the employers had not accepted even the minimum terms suggested by him as the employees were restive, he apprehended fchafc the workmen might strike work at any time. By the phrase minimum terms in the Comr.'s letter must be meant the terms offered by the Comr. refd. to in the earlier part of his letter. If this were so, there is a slight inexactitude in the statement of the Comr., when he fails to make a distinction between the petnr. five others who agreed to his terms the rest of those who did not report such acceptance. Immediately thereafter, i.e., on the same day, viz., 13-5-1947, without further ado, he thought it fit that the demands made by the workers should be refd. to the Industrial Tribunal for adjudication. It is, however, obviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any view or indicate any positive or negative relation thereto. Unless a specific dispute is postulated between a particular employer his workmen which calls lor a settlement by reference to a Tribunal it is difficult to imagine how an award of the kind now under consideration which does not relate to any dispute existing or apprehended between the particular employer his workmen can be said to be an adjudication binding on the particular employer, however wide the scope of the reference or the award may be in its application. 26. Such being the case, it cannot be said that the order of reference taken as a whole read along with the letter of the Comr. dated 13-5-1947 addressed to the Joint Secretary to Govt. indicates clearly the existence of any dispute between the petnr. his workmen that it was such a dispute that was being refd. to the Industrial Tribunal. On the other hand, it will not be far wrong to say that the order of reference is not merely most unsatisfactory, in that it is couched in vague general terms without making it clear as to the particular parties the specific dispute between them, which is referred to the tribunal, but is also ill. conceived ..... X X X X Extracts X X X X X X X X Extracts X X X X
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