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PETITIONER: GOVIND SUGAR MILLS LTD. & ANR

       Vs.

RESPONDENT: HIND MAZDOOR SABHA & ORS.

DATE OF JUDGMENT05/08/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A. GOSWAMI, P.K.

CITATION:  1975 AIR 1735            1976 SCR  (1) 251  1976 SCC  (1)  60

ACT:      U.P. Industrial Disputes Act (28 of 1947) as amended by U.P. Act  1 of  1957, s.  3(b) and  4K-If Government call be directed to refer dispute.

HEADNOTE:      Under s.  3(b) of  the U.P.  Industrial  Disputes  Act, 1947, the  State Government  issued a notification directing that the  recommendations of the First Sugar Wage Board were to come  into force  from November  1, 1960.  The  appellant refused to  implement the  provisions of  the  notification. There was,  consequently in industrial dispute but the State Government passed an order refusing to refer the dispute for adjudication under  s. 4K  of the  Act. In  a writ  petition filed by  the respondent,  the  High  Court,  following  the decision of this Court in State of U.P. v. Basti Sugar Mills Co. Ltd.  [1961] 2  S.C.R. 330,  issued a writ of certiorari quashing the  order of the State Government refusing to make a reference,  and also,  issued a writ of mandamus directing the State  Government and  the Labour  Commissioner to refer the dispute for, adjudication under s. 4-K.      Allowing the  appeal to  his Court against the issue of the writ of mandamus: ^      HELD: (1)  ’The power  of the Government under s. 10 of the  Industrial   Disputes  Act,   1947  (Central   Act)  is discretionary and it is open to the Government, taking  into consideration  relevant  factors,  to  refuse  to  make    a reference   that is,  the High Court may, after quashing the order of  the Government refuse to make a reference, ask the Government to  re-consider the  matter but it could not give peremptory directions  to make  a reference.  Section 4-K of the U.P.  Act, divorced from the context and setup of s.3 is in pari  Materia with  and stands on the same footing, as s. 10(1) of the Central Act. [253B]      M/s Mahabir  Jute Mills Ltd. Gorakhpore v. Shri Shibban Lal Saxena & Ors. Civil Appeal No. 781 of 1973, followed.      (2) Section  3(d), as  it stood  in the U.P. Act before 1957,  was   so  interwoven  and  inter-connected  with  the exercise of  the power  in cl. (b) that it led this Court in the Basti  Sugar Mills case to opine that a writ of mandamus

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could be  issued directing  the State  Government to  make a reference. The  position, however,  has  changed  after  the amendments brought  about in 1957 [253B-C)      (3) The  observation that, if the Government refuses to make a reference on  the basis of irrelevant considerations, the party  may move the High Court for a writ of mandamus in the Bombay  Union of  Journalists case [1964] 6 S.C.R 22. 35 only means  that a  writ of  mandamus could be issued to the Government to re-consider the matter. [253F]      (4) The reference of the dispute made by the Government in pursuance  of the direction of the High Court cannot hold good, but the State Government may reconsider the matter and exercise its  discretion either  to refer the dispute or not within the ambit of well-settled principles of law. [254A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 795 of 1975.      Appeal by  special leave  from the  Judgment and  order dated the   7th  December, 1973  of the Allahabad High Court (Lucknow Bench) in special appeal No. 189 of 1969.      B. Sen,  B. P.  Maheshwari and  Suresh Sethi,  for  the appellant. 252      J. P.  Goyal, D.  P. Mukherjee and Reghunath Singh, for respondent.      The Judgment of the Court was delivered by      UNTWALIA, J.-This  is an appeal by special leave. It is said that  by a  notification dated  27-4-1961 issued  under section 3(b)  of the   U  P Industrial Disputes Act-U.P. Act XXVIII  of   1947-herein-  after   called   the   Act,   the recommendations of  the first Sugar Wage Board were directed to come  in force with effect from November 1, 1960. Certain Sugar Mills  including  the  appellants  are  said  to  have refused to  implement the  provisions  of  the  notification dated 27-4-1961.  This gave  rise to  an industrial dispute. Eventually the  State Government  of Uttar  Pradesh  by  its order dated  22-9-1966  refused  to  make  a  reference  for adjudication of  the dispute  under section  4K of  the Act. Respondent no.  1 filed  a writ application in the Allahabad High Court  under Article  226 of  the Constitution of India asking for  a writ  of certiorari  to quash the order of the government dated  22-6-1966 and a writ of mandamus directing them to make a reference. A learned single Judge of the High Court dismissed  the writ  application.  But  the  same  was allowed in  a Special  Appeal by  a Bench of the High Court. The two  appellants approached  this Court  1 for  grant  of special leave. It was granted "limited to the question as to whether the High Court was justified in giving directions to respondents 1  and 2 to refer the dispute of the workmen for adjudication  under   section  4K  or  the  U.P.  Industrial Disputes Act."      In the Special Appeal the High Court has taken the view following the  decision of  this Court  in  State  of  Uttar Pradesh and  others v.  Basti Sugar  Mills Co.  Ltd.(1) that when action  was taken  under section 3(b) of the Act it was obligatory for  the State  Government to  make  a  reference under section  4K for adjudication of the Industrial dispute raised in  relation to  the said action. The High Court on a consideration of  the entire  facts and circumstances of the case allowed  the writ  petition and  quashed the order  the State Government  dated 22-6-1966  by grant  of  a  writ  of certiorari. In  this appeal  since  the  special  leave  was

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granted on  a limited  question we  are not  called upon  to interfere with  the said  portion of  the order  of the High Court. But  it further directed the State Government and the Labour Commissioner to refer the dispute for adjudication in exercise of  their power  under section  4K of  the Act.  It seems to  have been  so done    on  the  view  that  it  was obligatory for  be State  Government to  do so  11 after the issuance of  the notification under section 3(b) of the Act. In our opinion this was not correct.      The decision  of this  Court in the case of Basti Sugar Mills (supra)   was  given with  reference to  clause (d) of section 3 of the Act as it stood prior to the amendment made by U.P.  Act I of 1957. By the said amending Act, clause (d) was dropped and substituted by another clause (d) with which we are not concerned and the provision 253 of  making a reference was made in section 4K. Section 4K of the Act  is in  pari  materia  with  section  10(1)  of  the Industrial disputes  Act, 1947-central  Act XIV  of 1947. It has been  pointed out  by this  Court in  the case of Bombay Union of Journalists & Ors. v. The State of Bombay & Anr.(1) that the  power of the Government under section 10(1) of the Central  Act   is  discretionary  and  it  is  open  to  the Government  under   certain  circumstances  by  taking  into consideration the  relevant factors  to  refuse  to  make  a reference. Section  4K of  the Act divorced from the context and set  up of  section 3 stands on the same footing. Clause (d) of  section 3  as it stood in the Act before 1957 was so interwoven and  inter-connected with  the  exercise  of  the power in  clause (b)  that it led this Court to opine that a writ mandamus could be issued directing the State Government to make  a reference  under section  3(d) of  the Act  as it stood before  the 1957  amendment. In our judgment, however, the position  has changed  after the amendment brought about in the year 1957.      In the judgment of this Court delivered a few days ago, namely M/s  Mahabir  Jute  Mills  ltd.  Gorakhpore  v.  Shri Shibban  Lal  Saxena  &  Ors.(2)  it  has  been  held  on  a consideration of  the provisions low contained in section 4K of the  Act that  after quashing the order of the Government refusing to  make a  reference the  High Court could ask the Government to  reconsider the  matter but  it could not give peremptory directions  to make a reference. We may, however, take note  of a  sentence occurring  in the judgment of this Court in  the case  of Bombay Union of Journalists & Ors.(3) which reads thus:           "If the  appropriate Government  refuses to make a      reference  for   irrelevant   considerations,   or   on      extraneous grounds,  or acts malafide, that, of course,      would be  another matter;  in such a case a party would      be entitled  to move  the High  Court  for  a  writ  of      mandamus." We think  what was  meant to  be conveyed  by  the  sentence aforesaid was  that the  party would be entitled to move the High Court for  interfering with the order of the Government and not  necessarily for  the issuance of a writ of mandamus to direct  the Government  to make  reference. The  mandamus would be  to reconsider  the matter.  It does not seem to be quite reasonable  to take the view that after the refusal of the Government  to make  a reference  is quashed  a writ  of mandamus to  make a  reference must  necessarily follow. The matter has still to be left for the exercise of the power by the Government  on relevant  considerations in  the light of the judgment quashing the order of refusal.      For the  reasons stated above we allow this appeal only

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to the  extent that  the order of the High Court made in the Special Appeal  directing the  Government of  U.P.  and  the Labour Commissioner to 254 make a  reference  under  section  4K  of  the  Act  is  not sustainable and   is  set aside. We were informed at the bar that two  references have  already been made in pursuance of the said  direction. It  is plain  that the  said order made cannot hold  good when  we have  set aside  the order of the High Court  giving the  direction in  pursuance of which the references have  been made. It will, however, be open to the State Government  to reconsider  the matter  in the light of the judgment of the High Court and within the ambit of well- settled principles  of law  for exercise  of their  power of reference and  to take  such decision  in the matter as they may think  fit and proper to take in accordance with law. We shall make no order as to costs. V.P.S.                                       Appeal allowed. 255