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PETITIONER: MUNSHI LAL BENI RAM GLASS WORKS

       Vs.

RESPONDENT: S.   R. SINGH, ASSISTANT LABOUR COMMISSIONER ANDOTHERS

DATE OF JUDGMENT: 27/10/1969

BENCH:

ACT: Uttar    Pradesh   Industrial   Disputes   (Amendment    and Miscellaneous Provisions) Act XXIII of 1957, s. 16-If s.  16 refers  to s. 6A as it stood prior to amendment of s. 6A  by U.P.   Industrial  Disputes  (Amendment  and   Miscellaneous Provisions) Act, 1956 (1 of 1957)-General Clauses Act,  1860 s. 6-Award-State Government’s power to enforce.

HEADNOTE: The State Government, purporting to, act under ss. 3, 4  and 8  of  the  U.P. Industrial Disputes Act,  1944  referred  a dispute  in the appellant’s factory to an  adjudicator  who_ gave  his award on December 31, 1957.  On January 28,  1958, the  Government passed an order enforcing the  Award,  under ss.  3  and 6(12) of the Act.  The Award was  challenged  by means of a writ petition in the High Court.  A single  Judge of the High Court allowed the writ petition holding that the State  Government  had  no power to  enforce  the  Award  in question.  According to the single Judge the old s. 6 having been replaced by a new s. 6 by U.P. Act 1 of 1957 it was not a  case of repeal simpliciter and therefore old s.  6  could not  be  resorted to by relying on s. 6(e)  of  the  General Clauses  Act.   A Division Bench, in  appeal,  reversed  the order  of the single Judge and dismissed the writ  petition. On  the question whether s. 6A as mentioned in s. 16 of  the U.P.   Industrial  Disputes  (Amendment  and   Miscellaneous Provisions)  Act, 1956 (U.P. 1 of 1957) as amended  by  U.P. Industrial Disputes (Amendment and Miscellaneous Provisions) Act  XXIII of 1957 refers to s. 6A as it stood in  U.P.  Act XXVIII of 1947 prior to its amendment by U.P. Act 1 of  1957 or as it emerged after the said amendment, HELD:(i) By U.P. Act 1 of 1957 s. 6A was replaced by new  s. 6A  which came into force from April 16, 1957.  Prima  facie the  amendment  in s. 16 made in November 1957 by  U.P.  Act XXIII  of 1957 should be referable to s. 6A in the  form  in which it existed on the date of the enforcement of Act XXIII of  1957.  But looking at the position as it stood on  April 16,  1957 it would be seen that s. 16 was designed  to  save the pending proceedings from the operation of U.P. Act 1  of 1957  itself.  If this Act was held to be inapplicable  then s. 6A as amended thereby would be excluded and that  section as  it  stood prior to the amendment by U.P. Act 1  of  1957 would automatically be attracted.  To uphold the view of the learned single Judge would render awards like the one in the present  case unenforceable which intention is difficult  to attribute  to the legislature.  On the adjudication  of  the dispute  the  provision  of s. 6A  would  be  attracted  and thereunder the State Government could enforce the Award. [32 C-F]

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(ii)The  broad  proposition that section 6  of  the  General Clauses  Act is ruled out whenever there is a repeal of  any enactment  followed  by  a  fresh  legislation,  cannot   be accepted.  Section 6 would be applicable in such cases  also unless  the new legislation manifests an intention  incompa- tible  with or contrary to the proposition of  the  section. Such  incompatibility  would have to be ascertained  from  a consideration of all the relevant provisions of the new  law and  the  mere absence of a saving clause is by  itself  not material. [33 G-34 B] 28 State of Punjab v. Mohar Singh, [1955] 1 S.C.R. 893 referred to. (iii)     The   contention   that  the   decision   of   the adjudicator  is not an "award" as defined in s. 2(c) of  the U.P.  Industrial Disputes Act, as -amended by Act 1 of  1957 has  no force.  If U.P. Act 1 of 1957 is excluded  from  its application to pending proceeding under s. 16, then the word "award"  has to be liberally construed and so  construed  it would be covered by s. 6A.  The power conferred by s. 16 and 6A  has to be construed as real and not illusory and it  has to be interpreted so as to achieve the purpose for which  it was conferred. [33 D-E]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 1706  and 1707 of 1968. Appeals  from the judgment and decree dated May 7,  1964  of the Allahabad High Court in Special Appeals Nos. 77 and  118 of 1960. G.   N. Dikshit, for the appellant (in both the appeals). J.   P.  Goyal  and S. N. Singh, for  respondent No.  3  (in C.A.  No. 171)6 of 1968) and respondent No. 1 (in  C.A.  No. 1707 of 1968). C.   B.  Agarwala and O. P. Rana, for respondent No.  1  (in C.A.  No.  1706 of 1968) and respondent No. 2 (in  C.A.  No. 1707 of 1968). The Judgment of the Court was delivered by Dua,  J.  In these two appeals on  certificate  of  fitness, challenge  is directed against the view taken by a  Division Bench of the Allahabad High Court on appeal in  disagreement with  that  of a learned Single Judge of that Court  on  the interpretation of s. 16 of the U.P. Industrial Disputes  Act of 1957 and s. 6A of U.P. Industrial Disputes Act of 1947. The  relevant  facts may first be briefly stated.   In  June 1956  there  was  a  strike in  the  glass  factory  of  the appellant,  M/s.   Munshi  Lal  Beni  Ram  Glass  Works,  at Ferozabad.  As a result the factory was closed down for some time.   In  August 1956 a settlement was  reached  with  the workers  and it became possible to reassume operations  from August   31,  1956.   The  workers  were  asked  to   report personally,  latest  by  August  26,  1956,  to  show  their willingness to work.  According to the appellant, Lal  Khan, one  of the workers, failed to register his  willingness  to work before the appointed day, and indeed he did not care to report  in  spite  of a messenger having been  sent  to  him requiring  his  attendance.  In his place one Jang  Jit  was thereupon employed and intimation of this fact duly sent  to Lal Khan.  This gave rise to a controversy between Lal  Khan and the employers with the result that the State  Government purporting to act under ss. 3, 4 and 8 of U.P. Indus- 29 trial  Disputes  Act referred the following dispute  to  the

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Adjudicator :               "Whether the employers have wrongly and/or un-               justifiably refused employed to Shri Lal  Khan               with effect from 28/29th August, 1957 ? If so,               to what relief is he entitled ? Soon  after  the reference the appellant  presented  a  writ petition in the Allahabad High Court, (C.W. No. 899 of 1957) challenging  its  validity principally on  the  ground  that there was no industrial dispute within the contemplation  of the  Industrial  Disputes  Act.  As  interim,  stay  of  the proceedings   was  declined,  the  proceedings  before   the adjudicator   continued  and  on  December  31,   1957   the adjudicator  gave his award.  This was followed by an  order of the State Government dated January 28, 1958 enforcing the award  under ss. 3 and 6(2) of the U.P. Industrial  Disputes Act, 1947.  The award and the order of the State  Government were  also  challenged by the appellant by means of  a  writ petition in the High Court (C.W. No. 1025 of 1958).   Though principally  in  this writ petition the power of  the  State Government to enforce the award was questioned, challenge to the  order  of  reference was also  reiterated.   A  learned Single Judge allowed this later writ petition on January 28, 1958,  holding  that the State Government had  no  power  to enforce  the  award in question.  According to  the  learned Single  Judge  the  old s.6 having been replaced  by  a  new section 6 by U.P. Act 1 of 1957, it was not a case of repeal simpliciter and therefore old s. 6 could not be resorted  to by relying on s.6(e) of the General Clauses Act. On the matter having been taken on special appeal a Division Bench  of  the High Court following  ,its  earlier  decision reported  as  Central  Distillery and  Chemical  Works  Ltd. Meerut  v.  State  of U.P. (1) reversed  the  order  of  the learned Single Judge and dismissed the writ petition. The  short question, the determination of which is  decisive of  these appeals, is whether s.64 as mentioned in  s.16  of the  U.P. Industrial Disputes (Amendment  and  Miscellaneous Provisions)  Act,  1956 (U.P. Act 1 of 1957) as  amended  by U.P.   Industrial  Disputes  (Amendment  and   Miscellaneous Provisions) Act XXIII of 1957, refers to s.6A as it stood in U.P. Act XXVIII of 1947 prior to its amendment by U.P. Act 1 of  1957  or as it emerged after the  said  amendment.   The learned Single Judge construed it to mean as it stood before the amendment of U.P. Act 1 of 1957 whereas according to the two Bench decisions Section 16 refers to s. 6A as amended by U.P.  Act 1 of 1957.  We are required to determine which  of these two views is correct, (1) A.I.R. 1964 All. 156. 30 Section  16 of U.P. Act 1 of 1957 as it stood prior  to  its amendment by U.P. Act XXIII of 1957 ran as follows:               "Saving.   16.   If  immediately  before   the               commencement of this Act, there is pending any               proceeding   in  relation  to  an   industrial               dispute before any authority constituted under               the U.P. Industrial Disputes Act, 1947, as  in               force  before such commencement,  the  dispute               may be adjudicated and the proceeding disposed               of by that authority after such  commencement,               as if this Act had not been passed."               After  amendment  by U.P. Act XXIII  of  1957,               this section read thus               "Saving.   16.   If  immediately  before   the               commencement of this Act, there is pending any               proceeding   in  relation  to  an   industrial               dispute before any authority constituted under

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             the U.P. Industrial Disputes Act, 1947, as  in               force  before such commencement,  the  dispute               may be adjudicated and the proceeding disposed               of by that authority after such  commencement,               as if this Act had not been passed,               and  the  provisions  of section  6-A  of  the               Principal  Act shall remain  enforceable  with               reference to such a proceeding. The  words  added as a result of the amendment by  U.P.  Act XXIII  of  1957 had been deleted by this very  amending  Act from sub-section 2 of s.17 of U.P. Act 1 of 1957. We may now turn to the history of S. 6-A.  This section  was inserted in the U.P. Industrial Disputes Act XXVIII of  1947 by  the  U.P. Industrial Disputes Act XXIII of 1953  in  the following form :               "6-A.   Where  any period is specified  or  is               required  to  be specified in any  order  made               under  or in pursuance of this  Act  referring               any  industrial dispute for adjudication  with               in which the -award shall be made, declared or               submitted it shall be competent for the  State               Government from time to time, to enlarge  such               period even though the period originally fixed               or  enlarged  may have expired  or  the  award               made." This amendment had retrospective effect because it was to be deemed  to  have always been added in  the  U.P.  Industrial Disputes Act 1 of 1947 which was described as the "Principal Act".   In  1957  by  means of U.P.  Act  1  of  1957  which extensively amended the Act 1 of 1947, s.6-A was replaced by the following new section 6-A. 31               "6-A.  Commencement of the Award-(1) An  award               (including an arbitration award) shall  become               enforceable on the expiry of thirty days  from               the date of its publication under Section 6               Provided  that if the State Government  is  of               the  opinion that it will be  inexpedient,  on               grounds  of social justice, to give effect  to               the whole or any part of the award, the  State               Government   may,  by  notification   in   the               official Gazette, declare that the award shall               not  become enforceable on the expiry  of  the               said period of thirty days :               Provided  further  that an  arbitration  award               shall  not become enforceable where the  State               Government -after such enquiry as it considers               necessary, is satisfied that the same has been               given or obtained through collusion, fraud  or               misrepresentation.               (2)   Where  any declaration has been made  in               relation   to an award under the first proviso               to sub-section (1)   the State Government  may               within ninety days from the    date         of               publication of the award under Section 6, make               an  order recting or modifying the award,  and               shall  on the first available opportunity  lay               the  award together with a copy of the  order-               before the Legislature of the State.               (3)   Where any award as rejected or  modified               by an order made under sub-section (2) is laid               before  the  Legislature of  the  State,  such               award  shall become enforceable on the  expiry               of  fifteen days from the date on which it  is               so  laid and where no order  under  subsection

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             (2)  is  made in pursuance  of  a  declaration               under  the first proviso to  sub-section  (1),               the  award  shall become  enforceable  on  the               expiry of the period of ninety days referred               to in sub-section(2).               (4) Subject to the provisions of  sub-sections               (1) and (3) regarding the enforceability  of               an award, the award    shall    come    into               operation with effect from such date as may be               specified  therein,  but  where  no  date   is               specified it shall come into operation on  the               date when the award becomes enforceable  under               sub-section (1) of sub-section (3) as the case               may be." This enactment was enforced with effect from April 16, 1957. The  U.P.  Act  XXIII of 1957 which  was  published  in  the Government Gazette on November 3, 1957, as noticed  earlier, amended  S-16.  Prima facie this amendment in s. 16 made  in November, 32 1957 should be referable to section 6-A in the form in which it  existed on the date of the enforcement of  the  amending Act in question (U.P. Act XXIII of 1957).  It was  contended on  behalf  of  the appellant that the very  fact  that  the amendment of S.     16 was retrospective so as to date  back to April 16, 1957 when S.     16   itself   was   originally enacted, indicates that s. 6-A as it existed prior to  April 16, 1957 was intended to be kept alive.  Now looking, at the position  as  it stood on April 16, 1957, it would  be  seen that s.16 was designed to save the pending proceedings  from the operation of U.P. Act No. 1 of 1957 itself.  If this Act was held to be inapplicable, then s. 6-A as amended  thereby would be excluded and that section as it stood prior to  the amendment by U.P. Act No., 1 of 1957 would automatically  be attracted.   The  question  arises  :  where  was  then  the occasion to provide specifically for applying to the pending proceedings s,6-A as it stood before U.P. Act No. 1 of  1957 ? It may, of course, be contended that it was so done by way of  abundant  caution.   To us, however, it  seems  that  to specifically incorporate s.6-A in s.16 in this situation  is suggestive of the intention of the Legislature to extend the amended s.6-A to the proceedings contemplated by s.16. The enactment  under  consideration is not an example  of  ideal draftsmanship  and the provisions under  consideration  may’ admit     of   two   constructions.    Assuming   the    two constructions  to be possible we are not satisfied that  the construction placed on this provision by the two Benches  of the  Allahabad  High Court is clearly  erroneous  justifying reversal  of the view taken therein and  thereby  unsettling the legal position.  On the other hand to uphold the view of the  learned Single Judge would also render the awards  like the  present unenforceable, which intention is difficult  to impute  to  the  Legislature.  And then this  point  is  not likely to arise very frequently in future, the matter  being confined only to the cases which were pending when U.P.  Act No. 1 of 1957 was enforced.  The enactment is also  confined in its operation to the State of U.P. alone. The  appellant’s counsel next contended that the  proceeding in  question  pending  with the  adjudicator  could  not  be considered  to be pending with the State Government and  the State  Government could not give effect to the  decision  of the  adjudicator under s.16. It was argued that it was  only the  Authority  before  which the  proceeding  was  actually pending immediately after the commencement of U.P. Act No. 1 of  1957  which  was  empowered to dispose  it  of  and  the

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proceeding  in  the  present case being  pending  before  an adjudicator, the State Government could not claim any  power under this section.  It was added that the State  Government could also not be treated as the authority constituted under the  said Act.  In our, opinion the proceeding  in  question was clearly -pending before the adjudicator as  contemplated by s.16. The                              33 adjudicator, therefore, could plainly proceed to. adjudicate upon the dispute.  On his a judicious the provisions of s.6- A  would  be attracted and thereunder the  State  Government could  enforce  it.  This submission of  the  appellant  is, therefore,  repelled.  On the view that we have taken it  is not  necessary to decide whether the State Government is  an authority constituted under the Act as envisaged by s.16 and also whether the proceeding in question could be  considered to be pending before the State Government. The  appellant’s counsel also submitted that without  resort to  s.17  of U.P. Act No. 1 of 1957 the award could  not  be enforced.   This argument too need not detain us as it  does not arise on the view we have taken.  We may, however, point out  that s. 17 only provides for delegated  legislation  in certain circumstances and resort to s. 17 is not  essential, or  a  condition  precedent for  enforcing  the  awards,  as suggested on behalf of the appellant. The appellant’s learned Advocate as a last resort  submitted that  the decision of the adjudicator is not an  ’award’  as defined  in  s.2(c) of the U.P. Industrial Disputes  Act  as amended by U.P. Act No. 1 of 1957.  Now if U.P. Act No. 1 of 1957 is excluded from its application to pending  proceeding under  s.16  then  the  word ’award’  has  to  be  liberally construed  and so construed it would be covered by  s.  6-A. The power conferred by ss. 16 and 6A has to be construed  as real and not illusory and it has to be interpreted so as  to achieve the purpose for which it was conferred. We must not be understood to accord our approval to the view of  the learned Single Judge that s.6 of the  Principal  Act having  not  been  repealed  simpliciter,  but  having  been replaced  by  a  new section 6 by U.P. Act 1  of  1957,  the principle  underlying  s.6(e)  of the  General  Clauses  Act cannot  be attracted.  In our opinion, this approach is  not quite  correct.   Section 6 would seem to us to apply  to  a case  of  repeal even if there is a  simultaneous  enactment unless a contrary intention appears from the new  enactment. As  observed by this Court in the State of Punjab  v.  Mohar Singh(1)  whenever  there is a repeal of an  enactment,  the consequences  laid down in section 6 of the General  Clauses Act  will  follow  unless, as the  section  itself  says,  a different intention appears.  In the case of a simple repeal there  is  scarcely any room for expression  of  a  contrary opinion.    But  when  the  repeal  is  followed  by   fresh legislation on the same subject we would undoubtedly have to look  to  the provisions of the new Act, but  only  for  the purpose  of  determining whether they indicate  a  different intention.   The line of enquiry would be, not  whether  the new Act expressly keeps alive old rights and liabilities but whether’ it manifests an intention (1)  [1955] 1 S.C.R. 893. 34 to destroy them.  We cannot therefore subscribe to the broad proposition  that  section 6 of the General Clauses  Act  is ruled  out  whenever  there is  a  repeal-,of  an  enactment followed  by  a  fresh  legislation.   Section  6  would  be applicable  in  such cases also unless the  new  legislation manifests an intention incompatible with or contrary to  the

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proposition of the section.  Such incompatibility would have to  be ascertained from a consideration of all the  relevant provisions  of the new law and the mere absence of a  saving clause is by itself not material. The result is that these appeals fail and are dismissed with costs. R.K.P.S.                               Appeals dismissed. 35