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PETITIONER: S. K. G. SUGAR LTD.

       Vs.

RESPONDENT: SRI ALI HASSAN, CHAIRMAN, INDUSTRIALTRIBUNAL, BIHAR & OTHERS

DATE OF JUDGMENT: 04/11/1958

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. DAS, SUDHI RANJAN (CJ) SINHA, BHUVNESHWAR P. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1959 AIR  230            1959 SCR  Supl. (1) 254

ACT:        Industrial Dispute-Discharge by employer of workmen  Pending        adjudication-’Employer’, Meaning of-Industrial Disputes Act,        1947  (XIV Of 1947), ss. 33, 33A-Indian Companies Act,  1913        (7 Of 19I3), s. 171.

HEADNOTE: Gaya  Sugar Mills Ltd. went into liquidation and  the  sugar factory  owned by it was leased out to the appellant by  the liquidator  with the permission of the Court on December  6, 1954,  to  be worked in terms of the lease  which  provided, inter alia, that the lessee would neither be liable for  any of  the liabilities of the company, or of the liquidator  or the  outgoing  lessees  nor bound to  engage  any  of  their employees   or  those  working  from  before  except   those specifically  mentioned in the lease.  On December 2,  1954, i.e. four days before the appellant came into possession  of the   sugar   factory,  the  Bihar   Government   issued   a notification referring a dispute between the managements  of certain  specified  sugar factories,  including  Gaya  Sugar Mills  Ltd., and their workmen represented by their  Unions, for  adjudication to the Industrial Tribunal constituted  by the  respondent No. i. No notice was given to the  appellant and  proceedings against it were all  exparte.   Complaints, however,  were  made before the Industrial Tribunal  by  two batches of workmen against the appellant under s. 33A of the Industrial  Disputes Act alleging in one case that they  had been  discharged  and in the other that  the  conditions  of their  service  had been changed by  the  appellant  without first  obtaining the permission of the Tribunal under s.  33 Of the Act.  It was asserted on behalf of the appellant that there  was  no  breach  of the terms of  the  lease  and  no contravention  of  s. 33 Of the Act.   After  unsuccessfully moving  the  High  Court  under Arts. 226  and  227  Of  the Constitution  for  a writ of certiorari  quashing  the  said proceedings, the appellant came up to this Court by  special leave and it was contended on its behalf that (1)  no leave of the Court having been obtained under s. 171 Of the    Indian  Companies  Act  by  the  State  Government

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before it made the   reference   under  s.  10(1)   of   the Industrial  Disputes Act, the reference was bad in  law  and that  (2)  the  word ’employer’ in ss. 33  and  33A  of  the Industrial  Disputes  Act meant only such  employer  as  was actually concerned with the industrial dispute which was the subject  matter  of the reference and the  appellant  having come into possession of the Mills after the reference, could not be an employer within the -meaning of those sections. 255 Held, that the terms of the notification properly  construed clearly  showed that what was sought to be made a  party  to the reference was not the company itself but its  management at the  date of the reference and, therefore, no question of leave of the court under s. 171 Of the Indian Companies  Act could arise. The  word  ’employer’  occurring in ss. 33 and  33A  of  the Industrial   Disputes  Act  meant  the  identical   employer concerned  with  the  industrial  dispute,  which  was   the subject-matter of the adjudication, and could not include an employer who merely happened to discharge or punish or alter the  conditions of service of workmen unless  such  employer could  be  shown to be a mere nominee or bentamiday  of  the former or fell within the category of his heirs,  successors or assigns within the meaning Of s. 18(3)(c) of the Act. Since, in the instant case, the appellant satisfied none  of these tests, it was not bound to seek the permission of  the Tribunal under s. 33 Of the Act and the proceedings under s. 33A of the Act against it must be quashed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.793 of 1957. Appeal  by special leave from the judgment and  order  dated September  20, of the Patna High Court in M.J.C. No. 392  of 1955. C.   K. Daphtary, Solicitor-General of India, A. B. N. Sinha and B. P. Maheshwari, for the appellant. S. P. Varma, for respondents Nos. 1,2,6-8 and 10-23. 1958.   November 4. The Judgment of the Court was  delivered by BHAGWATI,  J.-This  appeal with special  leave  is  directed against  the  judgment of the High Court  of  Judicature  at Patna  dismissing  the  writ application  of  the  appellant seeking to quash the proceedings in Miscellaneous Cases Nos. 26  and  27 of 1955 before the Industrial  Tribunal,  Bihar, Patna. Gaya Sugar Mills Ltd., a Company incorporated in 1934  owned a Sugar Factory at Guraru, District Gaya.  An order for  the compulsory winding up of the Company was passed on  November 4,1951,  and by a subsequent order dated February  1,  1952, one  Dhansukh  Lal  Mehta was appointed  liquidator  of  the Company.  In order to preserve the aforesaid Sugar Mills  at Guraru in proper running order and also for the beneficial 256 winding  up of the Company the liquidator obtained under  S. III (b) of the Indian Companies Act sanction of the Court to lease  out  the said Mills with all the lands,  factory  and residential buildings and machineries etc.  The Guraru  Cane Development  and Cane Marketing Union Ltd., were the  former lessees  of  the said mills but on the expiration  of  their lease,  the liquidator obtained from the Court an  order  on December  3, 1954, sanctioning the lease in favour  of  Shri Krishna  Gyanody sugar Ltd .; the appellant herein, for  the period  December  5,1954  up to and  inclusive  of  November

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14,1955. The liquidator executed in favour of the  appellant lease  of  the said Mills on December 6,  1954,  and  handed over possession of the same to the appellant the same day. The terms and conditions of the lease, in so far as they are material for our purposes provided that the appellant  would be  put  into possession of the leasehold  properties  in  a proper  working  order and would work and  run  the  factory without  any interference or obstruction by or on behalf  of the  lessor  and  would appropriate the  entire  income  and profit  thereof  and the lessor would have no  concern  with profit  or  loss  made by the lessee  in  running  the  said factory and would not be entitled to any sum or amount  over and above the rent therein reserved.  The appellant was  not to be in any way liable or responsible for any of the liabi- lities  of the Company or of the liquidator or of  the  out- going lessees incurred whether before or after the appellant entered into possession except those mentioned therein.  The appellant  was  at its own cost entitled always  to  install ’any additional or other machinery or machineries and  erect god owns or structures for the Purposes of and in connection with  the running of the said Mills after intimation to  the lessor.  The appellant was not bound to engage any or all of the  employees of the lessor or of the" Outgoing lessees  or any  of the persons who had been working from before  except the  18 employees who were mentioned in Cl. 11 of the  lease and  the  appellant also agreed not to  retrench  any  staff already employed at that date in the Factory at Guraru (vide cl. 13(v),of the lease).  The 257 properties  demised by the said lease were deemed to  be  in the control of the Patna High Court and any dispute  between the  lessor and the appellant in respect of the  said  lease was to be placed before the said Court for decision and  the decision made by the said Court was to be binding on all the parties. It  appears that on December 2, 1954, i.e., 4 (lays  before, the  execution of the said lease and delivery of  possession of  the said Mills by the liquidator to the appellant,  the; Government of Bihar issued a notification referring  certain disputes  between  the Managements of the,  Sugar  factories specified   in   Appendix  I  thereto  and   their   workmen represented  by  the  Unions specified in  Appendix  It  for adjudication  to  an Industrial Tribunal of which  Shri  Ali Hassan,  the  respondent No. 1 herein, was to be  tile  sole member. The terms of the reference stated :- "  Whereas  the  State Government is  of  opinion  that  ail Industrial  dispute  exists or is  apprehended  between  the Management of the Sugar factories as specified in Appendix I and their workmen represented by the Unions as specified  in Appendix 11 regarding the matters specified in Annexure A ; Now,  therefore,  in  exercise of the  powers  conferred  by section  7  read with sub-section (1) of section 10  of  the Industrial   Disputes  Act,  1947  (XIV  of  1947)  and   in supersession  of  Notification  No.   III/-DI-14020/54L15146 dated  the  1st  October, 1954, the  Governor  of  Bihar  is pleased  to constitute an Industrial Tribunal of  which  Mr. Ali Hussan shall be the sole member and to refer  the   said dispute to the said Tribunal for adjudication.               Annexure "A" 1.   Retaining  allowance  to seasonal  employees  in  Sugar factories in Bihar. 2.   Leave and holidays to the employees including  seasonal employees in Sugar factories. 3.   Whether the deduction made in leave and holidays of the

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employees  of  the  Management of  the  Sugar  factories  is unjustified  and  if  so what compensation  or  relief,  the workmen are entitled to 33 258 There  were  as  many as 28  Sugar  factories  specified  in Appendix  I  and as many as 38 Labour  Unions  specified  in Appendix  11.   The Gaya Sugar Mills Ltd.,  Guraru  was  the second item in Appendix I and the Chini Mazdoor Sangh Guraru was mentioned at the third item in Appendix 11. The respondent No. 1 entered upon the said reference.   Even though  Gaya  Sugar  Mills Ltd., Guraru which  was  then  in liquidation  was  not  specifically  described  as  such  in Appendix  1,  notice  was given to the,  liquidator  by  the respondent  No. 1 for January 11, 1955, which was  the  date fixed  for  hearing  before him.  The  said  letter  however reached the liquidator on January 13, 1955, whereupon by his letter  dated January 14, 1955, he informed respondent  No.1 about  it.   Respondent No. 1 however satisfied  himself  by merely  endorsing on the letter of the liquidator  that  the hearing  had  already  concluded and  nothing  further  than inquiring  of the post office as to the reason of the  delay in  the  delivery of the letter could be  done.   Respondent No.1  made  his  award  on February 17,  1955,  and  it  was published in the Official Gazette on February 23, 1955.  The adjudication  proceedings  which had thus commenced  on  the date  of  the reference viz., December 2, 1954,  came  to  a conclusion  on the expiry of 30 days of the  publication  of the  award  viz., on March 25, 1955, under s. 20(3)  of  the Industrial  Disputes Act, 1947.  It appears that  an  appeal was  taken  to the Labour Appellate  Tribunal  against  this award and the appeal was decided on August 31, 1956. Even  though  the appellant was in possession  of  the  said Mills  under the terms-of the lease dated December 6,  1954, no notice was given by respondent No. 1 to the appellant and the appellant therefore could not and did not appear  before respondent No. 1. So far as the appellant was concerned  the proceedings  before  respondent No. 1 were  ex  parte.   Two applications were, however, made on March 23, 1955, under s. 33A  of  the  Industrial Disputes Act,  one  by  15  persons alleging  that  the  appellant had without  any  reason  and without  any notice discharged them from employ one  by  one during the months of January and February 259 1955 and the other by 5 persons alleging that the  appellant had changed their conditions of service without any  reason, contending  that  the  said discharges  and  the  change  in conditions  of  service had been effected by  the  appellant during  the pendency of the disputes before  the  Industrial Tribunal aforesaid without the permission of the  Industrial Tribunal having been obtained under s. 33 of the Act.  These applications  were numbered as Miscellaneous Cases  Nos.  26 and 27 of 1955 and the appellant received on April 7,  1955, two  notices  from respondent No. 1, both  dated  March  25, 1955,  informing the appellant about the filing of  the  two miscellaneous  cases and calling upon the appellant to  file statements  showing cause by April 19, 1955.  The  appellant accordingly  filed before respondent No. 1 two  applications or  statements  contending inter alia that  the  application under s. 33-A of the Industrial Disputes Act, filed by those persons (respondents Nos. 4 to 23 herein) were not maintain. able and were otherwise fit to be rejected.  It was asserted on  behalf of the appellant that the appellant as lessee  of the  said  Mills had strictly complied with  the  terms  and conditions of the lease and there had been no  contravention

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on  its  part of s. 33 of the Act, in regard to any  of  the workmen concerned in the aforesaid two miscellaneous  cases. It  was pointed out that none of the persons who  had  filed the  said applications was comprised in the 18  persons  who were  specifically mentioned in Cl. 11 of the lease and  who were  specifically exempted from the operation of  the  said clause nor were they comprised in the category of members of the staff whom the appellant as lessee, was not entitled  to retrench under Cl. 13(v) of the lease, with the result  that none of the said clauses of the lease could be said to  have been violated by the appellant. On  July 13, 1955, the appellant filed in the High Court  of Judicature  at Patna a writ application under Arts. 226  and 227  of the Constitution being Miscellaneous  Judicial  Case No.   392  of  1955  impleading  the  Chairman,   Industrial Tribunal,  Bihar as respondent No. 1, the State of Bihar  as respondent No. 2, the liquidator as respondent No. 3 and the applicants in 260 the said miscellaneous cases Nos. 26 and 27 of 1955  pending before the Industrial Tribunal as respondents ’Nos. 4 to  23 for  a  writ of certiorari quashing the  said  Miscellaneous Cases Nos. 26 and 27 of 1955, a writ of Mandamus restraining the  respondent  No.  1 from proceeding  with  or  otherwise dealing with the said miscellaneous cases costs and  further and other reliefs. The  main  Contentions urged by the appellant  in  the  said petition were:- (1)  that  under  each  one  of  the  points  referred   for adjudication,  considerable burden was sought to be  imposed on  the sugar factories concerned ; that all the  properties and effects of the Gay Sugar Mills Ltd., were in the custody of  the Court as from the date of the order for  Winding  up viz., November 14,1951 ; that ,the said notification did not purport to include Gaya Sugar Mills Ltd., in that light  and did  not  describe the company as having already  gone  into liquidation ; that no leave of the Court was obtained before commencing or continuing the proceedings before the Tribunal and in fact the liquidator was neither named as a party  nor was  any  notice  given to him of the  commencement  of  the proceedings  and  that therefore go far as the  Gava  Stugar Mills  Ltd.,  (In Liquidation) was concerned  there  was  no proceedingly  in the eye of the law before respondent No.  1 and  as such the Miscellaneous Cases Nos. 26 and 27 of  1955 of  which  notices had been sent to the appellant  were  not maintainable; and (2)  that no notice of the adjudication proceedings  arising out of the aforesaid Notification dated December 2, 1954, "- as at any stage given to the appellant who was in possession under the terms of the lease granted by the Court ; that the appellant  being lessee under orders and under terms of  the lease  approved  by the Court was liable for breach  of  the terms  of  the  lease, if any, and that also  to  the  Court alone;  that  there  was  no  violation  of  s.  33  of  the Industrial Disputes Act, if the appellant bona fide acted up to  the terms of the lease and being itself no party to  any adjudication  proceedings-before  any  Tribunal  or   before respondent No. 1 there could be no breach of s. 33 of 261 the Act and as such no application under s. 33A.of the,  Act could be maintained against the appellant. No  affidavit in reply was filed by or on behalf of  any  of the  respondents  and the application came  up  for  hearing before  Ramaswami,  C.  J. and Raj Kishore  Prasad,  J.  who delivered  the judgment of the Court on September 20,  1956,

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dismissing the application with costs. Assuming  but  without,  expressing  any  opinion  that  the reference  made by the State Government under s.   10(1)  of the  Industrial -Disputes Act was a legal proceeding  within the  meaning of s. 171 of the Indian Companies Act the  High Court  held that s. 10(1) of the Industrial , Disputes  Act, was not controlled by s. 171 of the Indian Companies Act and therefore no leave of the Court was necessary before  making a  reference of the Industrial Disputes under s. 10  (1)  of the  Industrial Disputes, Act.. It was also of opinion  that even  though the reference under s. 10(1) of the  Industrial Dispute Act was made by the State Government on December  2, 1954,  and  the applicant had taken the lease  of  the  said Mills subsequently i. e., on December 6, 1954, the applicant was  an " employer " within the meaning of the term used  in ss. 33 and 33A of the Act, and that it was not necessary for the  application  of  either  of  those  sections  that  the employer  who  discharges  or punishes the  workmen  or  who alters  the conditions of service of the workmen  should  be the  identical employer concerned in the industrial  dispute which  is  the  subject-matter  of  adjudication.   It   was sufficient  for invoking the provisions of either  of  those sections  that  there is the relationship  of  employer  and employee at the -time the workman is discharged or  punished or at the time his conditions of service are altered to  his prejudice.   It was further of opinion that even though  the liquidator was not made a party to the reference made by the State  Government under s. 10(1) of the Industrial  Disputes Act,  the  Gaya Sugar Mills Ltd.,  Guraru  was  specifically mentioned  as  one. of the parties in Appendix I,  that  the Gaya  Sugar Mills Ltd., continued to be a legal  personality though  an order for winding up had been made and that there 262 fore the Company was properly made a party to the  reference under  S. 10(1) of the Act.  The fact that the notice  given to  the  liquidator  on January 11, 1955,  might  have  been received  late by the liquidator did not, in the opinion  of the  Court, make any difference to the position inasmuch  as the  award of the Industrial Tribunal was made  on  February 17, 1955, i. e., long after the date of the notice and there was  no lack of jurisdiction in the Industrial  Tribunal  to make  the  award valid and binding on the Gaya  Sugar  Mills Ltd.,  Guraru.   The  High Court  accordingly  rejected  the application as stated above. The  applicant applied for leave to appeal to this Court  on November  9, 1956, but the High Court refused to  grant  the certificate on the ground that the proceeding for grant of a writ of certiorari under Art. 226 is not a civil  proceeding within  the  meaning of Art. 133 of the  Constitution.   The applicant thereupon applied for and obtained from this Court on April 1, 1957, special leave to appeal and the appeal has now come up for hearing and final disposal before us. The two main contentions which were urged before us by the learned Counsel for the appellant were:- (1)  that the Gaya Sugar Mills Ltd., Guraru had been taken     into liquidation and respondent No. 3 had been appointed the liquidator thereof; that the reference made by the State Government to the Industrial Tribunal on  December 2, 1954, involved considerable financial burden on the  said Mills  and- the State Government ought to have obtained  the sanction  of the Court under s. 171 of the Indian  Companies Act before making a reference of the industrial disputes  to the  Industrial  Tribunal under s. 10(1) of  the  Industrial Disputes  Act, qua the said Mills and that not  having  been done, the reference was bad in law and there was no question

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of the applicability of either s. 33 or s.   33A of the Act, and (2)  that  on a true construction of ss. 33 and 33A  of  the Act, the " employer " therein mentioned could only be the  " employer " concerned in the industrial dispute which was the subject-matter  of reference, that the applicant  had  taken the lease of the said:                             263 sugar  Mills on December 6, 1954, 4 days after the  date  of reference  made by the State Government under, s.  10(1)  of the  Act,  and  that therefore the applicant was  not  an  " employer " within the meaning of the terms as used in s.  33 or  s. 33A of the Act, and even if the allegations  made  by the applicants in Miscellaneous Cases Nos. 26 and 27 of 1955 before  respondent No. 1 were correct, it was not  necessary for  the  applicant to have obtained the permission  of  the Industrial  Tribunal under a. 33 of the Act,  and  therefore the said applications under s. 33A of the Act, filed by res- pondents 4 to 23 were not maintainable. It will be appropriate at this stage to set out the relevant sections  of  the Indian Companies Act  and  the  Industrial Disputes  Act,  1947 (as they then stood) which fall  to  be considered by us in this appeal. S.   171 (Indian Companies Act): " Suits stayed on winding up order: When a winding up  order has been made or a provisional liquidator has been appointed no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of   the Court, and subject to such terms as the Court may impose." S.10(1)   (Industrial  Disputes  Act,   1947):Reference   of disputes to Boards, Courts or Tribunals: Where  the  appropriate Government is of  opinion  that  any industrial  dispute exists or is apprehended, it may at  any time, by order in writing- (a)  refer the dispute to a Board for promoting a settlement thereof; (b)  refer  any  matter appearing to be  connected  with  or relevant to the dispute to a Court for inquiry or (c)  refer  the.  dispute  or any  matter  appearing  to  be connected with or relevant to, the dispute to a Tribunal for adjudication: Provided that where the dispute relates to a public  utility service  and a notice under section 22 has been  given,  the appropriate  Government shall, unless it considers that  the notice has been frivolously or vexatiously given or that  it would be inexpedient so 264 to   do,  make  a  reference  under  this  subsection   not- withstanding  that any other proceedings under this  Act  in respect of the dispute may have commenced," S.   33  (Ibid):  Conditions  of  service  etc.,  to  remain unchanged during pendency of proceedings During  the  pendency  of any  conciliation  proceedings  or proceedings  before a Tribunal in respect of any  industrial dispute, no employer shall- (a)  alter,  to  the prejudice of the workmen  concerned  in such dispute, the conditions of service applicable, to  them immediately before the commencement of such proceedings; or (b)  discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board  or Tribunal, as the case may  be." 33-A (Ibid): Special provisions for adjudication

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as to     whether conditions of service etc., changed during pendency of proceedings: " Where an employer contravenes the provisions of section 33 during  the pendency of proceedings before a  Tribunal,  any employee  aggrieved  by  such  contravention,  may  make   a complaint  in  writing,  in the prescribed  manner  to  such Tribunal  and  on receipt of such  complaint  that  Tribunal shall adjudicate upon the complaint as if it were a  dispute referred  to  or pending before it, in accordance  with  the provisions  of  this Act and shall submit its award  to  the appropriate  Government and the provision of this Act  shall apply accordingly." As to (1):-Section 171 of the Indian Companies Act occurs in Part  V  which relates to the winding up  of  companies  and prescribes  that  once a winding up order has been  made  no suit  or other legal proceedings shall be proceeded with  or commenced against the Company except by leave.of the winding up Court and subject to such terms as the Court may  impose. The Court is in custody of all. the properties and assets of the Company through the liquidator and is in control of  the winding up-proceedings with a view to the proper realization of the assets: and, the equitable, 265 distribution  thereof amongst the creditors of the  Company. No suit or other legal proceeding can therefore be proceeded with  or, commenced against the’ Company except by leave  of the Court and such leave is a necessary prerequisite of  the prosecution  of such legal proceeding.  In order  to  decide the  question of the applicability of s. 171 of  the  Indian Companies  Act  it  has to be ascertained  (a)  whether  the reference  in question is a proceeding against the  Company, and,  if So (b) whether such reference can be said to  be  a legal proceeding within the meaning of s. 171 of the  Indian Companies Act. There  has  been unfortunately a considerable  confusion  of thought  in  the  court below and the facts  have  not  been properly  appreciated.  The first question to determine  was who was the party to the reference.  It appears to have been assumed that the Gay a Sugar Mills Ltd., was a party to  the reference and that the only defect in the order of reference was  that the liquidator was not made a party to the  refer- ence.  This difficulty was sought to be got over by  holding that  the  Gaya Sugar Mills Ltd., continued to  be  a  legal personality  though an order for winding up had  been  made, that the Company had not ceased to exist as a legal. entity, and, therefore, the Company was properly made a party to the reference  under  s. 10(1) of the Industrial  Disputes  Act. This  was,  however,  not the correct  position  on  a  true interpretation of the terms of reference.  The reference was between the managements of the Sugar factories specified  in Appendix  I  and  their workmen represented  by  the  Unions specified in Appendix 11.  Gaya Sugar Mills Ltd., Guraru was mentioned as item 2 in Appendix I but it is quite clear that what was intended to be made a party to the reference  under this  item  was the:-management of the Sugar  factory  which belonged  to the Company called the Gaya Sugar  Mills  Ltd., whoever. that management may be.  The mention of the Company was  to  indicate and to point out  the  particular  factory whose  management  for the time being was to be one  of  the parties to the reference and 34 266 it required to be ascertained who was comprised within the " management  " of the Mills.  The State Government could  not have  been oblivious of the fact that the Company  had  gone

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into  liquidation and a liquidator of the Company  had  been appointed  by the court and was leasing out the  factory  to different  lessees.  If the Company itself were a  party  to the  reference the liquidator ought to have  been  mentioned there  as  such  but that apparently was not  done  for  the simple  reason  that  the factory was being  worked  by  the lessees under the terms of the leases duly sanctioned by the court.   The liquidator was therefore not in  management  of the factory and the only persons who were in management were the  then  lessees  to  whom  leases  were  granted  by  the liquidator  with the sanction of the court.  The  Industrial Tribunal  was obviously in error when it gave notice of  the proceedings  to the liquidator.  The liquidator was no  more in management of the factory and was therefore not  entitled to  be  served  with any notice; the then  lessees  were  in management and they were the only parties to whom notice  of the  proceedings should have been given.  The liquidator  no doubt wrote to the Industrial Tribunal that he had  received the  notice too late for him to attend.  This letter of  the liquidator was treated with scant courtesy by the Industrial Tribunal who merely endorsed at the foot of the letter  that the  hearing had already concluded and nothing further  than enquiring  of the Post Office as to the reason of the  delay in the delivery of the letter could be done.  The Industrial Tribunal  proceeded to make its award on February 17,  1955, without  having  before it the management  of  the  factory, viz.,  the  lessees who had obtained the lease of  the  said Mills from the liquidator and for all practical purposes the said  award was ex parte so far as the lessees who  were  at the  date of the reference in management of the factory  and were obviously intended to be a party to the reference  were concerned.   The  appellant  came  into  management  of  the factory after the reference and could not at the date of the reference  be in contemplation of the State Government as  a party and in- any 267 event, no notice whatever was given to the appellant’ of the proceedings   before  the  Tribunal.   By  no   stretch   of imagination   could  it  be  said  that  the   Company   (In Liquidation)  was a party to the reference, the  said  Mills having  been  given on lease to the lessees who  worked  the Mills thereafter not for and on behalf of the Company but on their own account, they being responsible for the profit and loss  in  the working of the Mills.  The  Company  thus  not being  a party to the reference the proceedings  which  were commenced on December 2, 1954, before the Tribunal were  not proceedings  against  the Company  (In  Liquidation).  -This being  the position on a true construction of the  terms  of the  notification  by  which  the  reference  was  made  the question whether the reference was a legal proceeding within the  meaning of s. 171 Of the Indian Companies Act does  not arise  for  our decision and we prefer not  to  express  any opinion on that part of the question. As to (2):-The next question to consider is the  connotation of  the term " employer " as used in ss. 33 and 33A  of  the Industrial  Disputes  Act.   These  sections  postulate  the pendency  of  a  proceeding of an  industrial  dispute.   It requires  two to raise a dispute.  An Industrial Dispute  is thus  defined in s. 2(k) of the Act:,, Industrial dispute " means any dispute or difference between employers  and employers, or between employers and  workmen, or between workmen and workmen, which is connected with  the employment  or non-employment or the terms of employment  or with conditions of labour, of any person. If  this  definition  is bodily lifted from  s.  2  (k)  and

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substituted  for  the  expression  "  industrial  dispute  " ,occurring  in s. 33 and ss. 33 and 33A of the Act are  then read, it will at once become clear that the employer can  be no  other  than the employer with whom the workers  had  the industrial  dispute  and cannot mean merely  an  employ  who discharges  or  punishes  or who alters  the  conditions  of service  of  the workmen concerned.  If  the  interpretation adopted by the High Court was correct it would mean that the Industrial 668 dispute which is referred for adjudication to the Industrial Tribunal may have arisen between employer A and his  workmen but during the pendency of those proceedings employer B  who had  nothing to do with employer A would be  prevented  from discharging  or  punishing  the workmen  or  altering  their conditions  of  service,  provided  only  that  the  workmen concerned  happened  to  be  interested  in  the  industrial dispute  which was pending before the  Industrial  Tribunal. If there is no connection at all between the employer A  and the employer B in the illustration given above, one fails to see  how  a  mere  identity of  the  establishments  or  the identity  of  the  workmen  could be  enough  to  bring  the employer  B within the purview of these sections.  The  very purpose of the enactment of as. 33 and 33A of the Industrial Disputes Act is, as observed by this Court in the Automobile Products of India Ltd. v.   Bukmaji Bala (1). "  to ensure that proceedings in connection with  industrial disputes already pending should be brought to a  termination in a peaceful atmosphere and that no employer should  during the  pendency  of those proceedings take any action  of  the kind mentioned in the sections which may give rise to  fresh disputes  likely to further exacerbate the already  strained relation  between the employer and the workmen.  To  achieve this  object a ban has been imposed upon the ordinary  right which  the employer has under the ordinary law  governing  a contract  of  employment.  Section 22 of the  1950  Act  and section 33 of the 1947 Act which impose the ban also provide for  the  removal  of that ban by the  granting  of  express permission in writing in appropriate cases by the  authority mentioned therein." The scope of the enquiry under section 33 of the  Industrial Disputes   Act   has  also  been  the  subject   matter   of adjudication by this Court and it was held in Atherton  West &  Co.,  Ltd.  v.  Suti Mill  Mazdoor  Union  (2)  that  the authority: "  concerned  would  institute an enquiry and  come  to  the conclusion whether there was a prima facie case (1) [1955] i S.C.R. 1241, 1256. (2) [1953] S.C.R. 780, 787. 269 made  out for the discharge or dismissal of the workman  and the  employer, his agent or manager was not actuated by  any improper motives or did not resort to any unfair practice or victimisation  in  the matter of the proposed  discharge  or dismissal of the workman." A  similar ratio would apply where an employer  changes  the conditions of service of the workmen concerned.  If this  be the  criterion  for  determining  whether  an  employer  was entitled  to discharge or punish the workmen or alter  their conditions  of service without the permission in writing  of the  authority concerned that employer cannot be  any  other than  the  one who is concerned in  the  industrial  dispute which is the subject matter of adjudication.  If employer  B has  nothing to do at all with employer A who is really  the

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party  concerned  in such industrial dispute  which  is  the subject-matter of adjudication, there will be no question of attributing  any  improper  motives or  unfair  practice  or victimization  to  the employer B in regard  to  the  action which he proposed to take against the workmen.  Whether  the employer  B  would be entitled to such action or  not  would have  to  be determined in other proceedings  which  may  be taken  in  the  matter  of  industrial  disputes  which  may subsequently  arise  between himself and his  workmen  after such action was taken.  But he would certainly not be  bound before taking such action to seek the permission in  writing of  the  Industrial  Tribunal  before  which  an  industrial dispute  was  pending as between those workmen  and  another employer   with  whom  he  had  no  concern.    The   latter interpretation  is  therefore more in  consonance  with  the principle   underlying  the  enactment  of  s.  33  of   the Industrial  Disputes  Act  and  it must  be  held  that  the employer  contemplated by ss. 33 and 33A of  the  Industrial Disputes Act must be the identical employer concerned in the industrial   dispute   which  is   the   subject-matter   of adjudication.  In other words, the employer contemplated  by ss.  33 and 33A of the Industrial Disputes Act must  be  the employer with whom the workmen mentioned as aggrieved  under s. 33 had a subsisting relationship of employer 270 and  employees  at  the  commencement  of  the   proceedings referred to in those sections.  The identity of the employer at  the commencement of the reference with the employer  who intends  to take proceedings within the ban of s. 33 of  the Act  must  be established and if the latter has  no  concern with  or relationship with the former ss. 33 and 33A of  the Act do not dome into operation at all.  Such identity  could in  the event of change in the employers be  established  by showing  that  the latter employer was merely a  nominee  or Benamidar  of  the  former  or that on  the  analogy  of  s. 18(3)(c) of the Industrial Disputes Act he came with in  the description of " his heirs, successors or assigns in respect of the establishment to which the dispute relates, in  which event  the award made by the Indus. trial Tribunal would  be binding on him just as much as on the former employer of the workmen  concerned.  These are, however, the only  cases  in which according to the provisions of the Industrial Disputes Act the identity of the employers at the commencement of the proceedings  and  the intended discharge  or  punishment  or change in the conditions of service of the workmen concerned could be established and unless the employer who intended to discharge  or punish or change the conditions of service  of the  workmen was in this sense identical with  the  employer who  was  concerned in the industrial dispute which  is  the subject-matter  of adjudication no question could  arise  of the operation of section 33 or section 33A of the Industrial Disputes Act. What  then  was  the position of  the  appellant  under  the reference  in question ? It does not appear from the  record as  to who was the management of the said Mills on  December 2,  1954.   The lease in favour of the old  lessees,  Guraru Cane   Development  and  Cane  Marketing  Union  Ltd.,   had apparently  come to an end by efflux of time, the period  of the  lease  presumably being up to the end of  the  crushing season  which would end some time in the month of  November, 1954.   An  application had been made by the  liquidator  to grant   a  lease  in  favour  of  the  appellant  and   this application was granted by the Court on December 3, 1954, so that  in  any event before December 3, 1954,  the  appellant could

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271 not  be said to be in management of ’the said Mills.   As  a matter  of  fact, the lease was executed in  favour  of  the appellant  on  December 6, 1954, and the possession  of  the said Mills was also given to the appellant by the liquidator on the same day.  It could not, therefore, be said that  the appellant  was  comprised  within  the  description  of  the management  of the Gaya Sugar Mills Ltd., at the  date  when the reference was made by the State Government.  If that was so,  a reference Of a previous date, without anything  more, could  not comprise the appellant within its scope and  that appears to have been the position as understood even by  the Industrial  Tribunal which gave no notice to  the  appellant but gave notice of the proceedings erroneously as we hold to the  liquidator  of the Company.  The appellant was  not  in management  of the said Mills and it could not be  bound  by the  reference  because  at no stage was  any  attempt  made either to amend the terms of the reference or even to  serve on  the appellant a notice of the proceedings which were  to take  place  before  the  Industrial  Tribunal.   Under  the Industrial  Disputes (Central) Rules, 1947, enacted  by  the Central Government in exercise of the powers conferred  upon it by section 38 of the Industrial Disputes Act,  intimation of the place and time of hearing had got to be given to  the parties  to  the  reference (Rule 10);  and  the  Industrial Tribunal was enjoined to call upon the parties at the  first sitting to state their case (Rule 11)  the only power  given to  the Industrial Tribunal to proceed ex parte was  when  a party  to  the  proceedings  failed  to  attend  or  to   be represented  without  good cause shown (Rule 19) ;  and  the representatives   of   the  parties  appearing   before   an Industrial  Tribunal were to have the right of  examination, cross-examination  and  of  addressing  the  Tribunal   when evidence  had  been called (Rule 24) : The  ’whole  of  this procedure  envisaged  the  parties to  the  reference  being properly  notified of the proceedings before the  Industrial Tribunal   and taking part therein either by  themselves  or through, their authorised representatives.  The fact that no such  notice  was given to the appellant by  the  Industrial Tribunal goes to show that in the circum- 272 stances  that  obtained  the  appellant  was  certainly  not understood  by  the Tribunal as having been a party  to  the reference  and  it could not be said on the  -terms  of  the reference  itself which was made on December 2,  1954,  that the  appellant, which came into existence as the lessees  of the said Mills on December 6, 1954, was a party to the  said reference.   If  the old lessees were in management  of  the said  Mills  on December 2 1954, there was  no  identity  of employers  as between them and the appellant, the  appellant certainly  did not claim under the old lessees nor could  it be  described as their " heirs, successors or assigns  "  in respect  of the establishment to which the  dispute  related within  the  meaning  of  s. 18(3)  (c)  of  the  Industrial Disputes  Act,  There  is no suggestion  whatever  that  the appellant was or is a benamidar of the previous lessees.  In no event could the appellant therefore be held to be,  bound either by the reference or the award made by the  Industrial Tribunal,  the identity of the employers at the date of  the reference  with  the  employers at the time  when  the  acts complained  of  in  the applications under s.  33-A  of  the Industrial  Disputes Act were purported to be done  by  them not having been established. If  that is the true position, no question of the  appellant obtaining  written  permission of  the  Industrial  Tribunal

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under  s. 33 of the Act for discharging or punishing or  for effecting  a  change  in the conditions of  service  of  the workmen  concerned could arise.  If no such permission  were needed, s. 33A of the Act also could not come into operation and  the applications in Miscellaneous Cases Nos. 26 and  27 of 1955 we’re not maintainable. The result is no doubt unfortunate ; because the  Industrial disputes  which were referred to the Industrial Tribunal  by the  reference in question were general in their nature  and would  comprise  within  their scope the  workmen  who  were working in the Gaya Sugar Mills Ltd., at all relevant times. The appellant came in management of the said Mills from  and after  December 6, 1954, and it was certainly intended  that these, disputes which had either existed or were apprehended between the appellant on the one hand and the workmen                             273 working in the said Mills on the other should be adjudicated upon  under the terms of that reference.  If  the  appellant could   be  comprised  within  the  description  of  the   " management " of the said Mills at the date of the reference, viz.,  December 2, 1954, the object and the purpose  of  the reference  qua  the  workmen  of the  said  Mills  would  be accomplished.  The difficulty, however, is that the  several managements  which would come into existence  on  successive leases being granted by the Court in the present case cannot be said to have been comprised within the term  "managements of the Sugar factories specified in Appendix I" even  though the  Gaya  Sugar Mills Ltd., Guraru is mentioned as  item  2 therein.   Such  a  construction  would  make  the   several successive lessees who came into existence during the  whole of  the  period when the reference was pending  -before  the Industrial Tribunal parties to the reference involving fresh notices  to  be  issued,  fresh statements  of  case  to  be furnished,  fresh  hearing  to be granted, to  each  of  the successive  lessees under the Industrial Disputes  (Central) Rules,  1947, a result which certainly could not  have  been contemplated by the State Government when the reference was made. It,  therefore,  follows that the appellant was not  by  any count  a party to the reference dated December 2, 1954,  and not  being  such a party was not an  "employer"  within  the meaning  of ss. 33 and 33-A of the Industrial  Disputes  Act qua the workmen who filed the applications in  Miscellaneous Cases Nos. 26 and 27 of 1955.  If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference  of their  industrial disputes under s. 10(1) of the Act, as  to which  we say nothing, but it is quite clear to us that  the workmen  cannot in the circumstances of this case  raise  an industrial  dispute  indirectly  by having  recourse  to  an application  under s. 33-A of the Act.  In the  premises  if the  appellant was not bound, as we hold it was not, to  ask for the written permission of the 35 274 Industrial   Tribunal  before  discharging,   punishing   or effecting  a  change  in the conditions of  service  of  the workmen  concerned no application under s. 33-A of  the  Act could  be maintained against it even on the assumption  that the allegations made in the said applications were correct. The  result,  therefore,  is that the  proceedings  in  Mis- cellaneous  Cases  Nos. 26 and 27 of 1955  before  the  res- pondent No. 1, Industrial Tribunal, Bihar, Patna are without jurisdiction  and liable to be quashed.  The appeal  of  the

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appellant  will therefore be allowed, the order made by  the High  Court on September 20, 1956, will be set aside  and  a writ  of  certiorari  will issue against  respondent  No.  1 quashing  the  proceedings in the said  Miscellaneous  Cases Nos.  26 and 27 of 1955.  The appellant will be entitled  to its costs throughout against the contesting respondents. Appeal allowed.