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PETITIONER: STRAWBOARD MANUFACTURING CO., LTD.

       Vs.

RESPONDENT: GUTTA MILL WORKERS’ UNION.THE STATE OF U. P: INTERVENER.

DATE OF JUDGMENT: 17/12/1952

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR   95            1953 SCR  439  CITATOR INFO :  E&D        1957 SC 676  (20)  F          1958 SC 187  (3,6)  E&D        1958 SC1018  (17,20)  R          1963 SC 274  (37)  R          1970 SC 385  (6)  C          1984 SC  87  (21)

ACT: U.   P. Industrial Disputes Act, 1947, s. 6-U.   P.  General Clauses Act, 1904, ss. 14, 21-Industrial  Dispute-Reference- Power to extend time for making award-Award made after time- Validity-Subsequent extension of time-Effect.

HEADNOTE: On February 18,1950, the Governor of Uttar Pradesh  referred an industrial dispute to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950.  The award, however, was made on April 13, and on April 26, the Governor issued a notification  extending the time for making the award up  to April 30: Held,  (i)  in  view of the language of s. 6 of  the  U.  P. Industrial  Disputes  Act,  1947, and in the  absence  of  a provision like that contained in the proviso to r. 16 of the Governor’s  notification dated in March 15, 1951, the  State Government had no authority whatever to extend the time, and the adjudicator became functus officio on the expiry of  the time fixed in the original order of reference and the  award was therefore one made without jurisdiction and a nullity. (ii)Section  14 of the U. P. General Clauses Act, 1904,  did not in terms   or  by  necessary implication give  any  such power of extension of time to the State Government. (iii)Though  the  order of April 26 did exfacie  purport  to modify  the order of February 18, in view of the absence  of any distinct provision in s. 21 of the U. P. General Clauses Act,  1904,  that the power of  amendment  and  modification conferred on the State Government may be so exercised as  to have retrospective operation, the order of April 26,  viewed merely as an order of amendment or modification, cannot,  by virtue of s. 21, have retrospective effect. Raja  Har Narain Singh v. Chaudhrain Bhagwant Kuar (L.R.  18

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I.A. 55) applied.  Jetha  Lal  Lakshmi Chand Shah v. Amrita Lal  Ojha  (I.L.R. [1938]  2 Cal. 482), Lord v. Lee (L.R. 3 Q.B. 404),  Dentron v. Strong (L.R. 9 Q.B. 117), May v. Harcourt (L.R. 13 Q.B.D, 688) distinguished. 57 440

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.  134 of 1951.  Appeal from the Judgment and Order  dated 20th  November,  1950,  of the  Labour  Appellate  Tribunal, Lucknow, in Appeal No. 10 of 1950. Bakshi  Tek Chand and Veda Vyasa (S.  B. Kapur,  with  them) for the appellants. Shaukat Hussain for the respondent. Bishen Singh for the intervener. 1952.  December 17.  The Judgment of the Court was delivered by DAS  J.-This  appeal has been filed with the  special  leave granted  by  this  Court  on May 10,  1951.   By  the  order granting  such leave the appeal has been restricted  to  one point  only,  namely,  " whether  the  Government  of  Uttar Pradesh  had  the power to extend the time  for  making  the award  ex post facto, i.e. after the time  limit  originally fixed therefore had expired. There is no dispute as to the facts.  An industrial  dispute having   arisen  between  the  appellant  company  and   its employees,   by  Labour  Department  Notification  No.   637 (ST)/XVIII-53 (ST)/50 dated February 18, 1950, the  Governor of  Uttar  Pradesh was pleased, in exercise  of  the  powers conferred  by  section 3 read with section 4 of  the  U.  P. Industrial  Disputes  Act, 1947 (U.  P. Act  No.  XXVIII  of 1947), to refer the said dispute to the Labour Commissioner. U.  P.,  or a Conciliation Officer of  the-State  Government nominated  by him for adjudication on seven  several  issues specified therein and to direct the adjudicator to  conclude the  adjudication  proceedings and submit his award  to  the Government  not  later  than  April  5,  1950.   The  Labour Commissioner by his letter No. I.M.R. 14-A nominated Shri M. P.  Vidyarthi, Regional Conciliation Officer, U. P., as  the adjudicator  in the above dispute with a direction  that  be should submit his, award by March 25, 1950, and that if  the proceeding, were not likely to be 441 completed within that time he should move the Government for extension of time at least a week before the specified date. By  Notification No. 897 (ST)/XVIII-53 (ST)/50  dated  March 20,  1950,  the  Governor  was pleased  to  order  that  the adjudicator  should also adjudicate on an  additional  issue formulated  therein.   By a further  Notification  No.  950’ (ST)/XVIII-53  (ST)/60 dated March 24, 1950,  the  ,Governor was  pleased  to  refer another  additional  issue  for  the decision  of the adjudicator.  The adjudicator did not  make his  award  on or before April 55 1950, as directed  by  the first  order  of reference but made his award on  April  13, 1950,  that is to say, 8 days after the expiry of  the  time originally  fixed  for  the  making  of  the  award.   About thirteen  days  after. the I delivery of  the  award  Labour Department  Notification No. 1247 (ST)/XVIII-53 (ST)/50  was issued on April 26, 1950, whereby the Governor was  pleased, in  exercise  of  powers conferred by section  3  read  with section 4 of the ’Act, to allow the adjudicator in the  said

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dispute  to submit his award by April 30, 1950.   Thereafter by  Notification No. 1447 (ST)/XVIII-53(ST)/50 dated  August 1,  1950., the Governor was pleased, in exercise  of  powers conferred by section 6 (2) read with sections 3 and 4 of the Act, to order that the award be enforced for a period of six months from the date of that order in the first instance and thereafter for such further period as might be prescribed. On  August  17,  1950, the appellant  company  preferred  an appeal  against the award to the Labour  Appellate  Tribunal contending, inter alia, as follows:- That  the  award dated April 13, 1950, is  vitiated,  having been given after the expiry of the time limit. (a)  In  its  order  dated February  18,  1950,  para.  (5), Government   directed  the  adjudicator  to   conclude   the proceedings  and  submit his award not later  than  the  5th April,  1950.   The award is dated 13th  April,  1950.   The Government, however, tried to remedy 442 this  defect  by the issue of G.O. No.  1247  (ST)  XVIII-53 (ST)/50  dated April 26, 1950, but under the law this is  of no  avail.  To be a valid extension of date granted  to  the adjudicator,  Government  ,.,order should have  been  issued before  the  5th April, 1950, to keep the authority  of  the adjudicator  alive.  "On the date the adjudicator  made  the award,  i.e., 13th April, 1950, he had no power to  make  an -award." The  Appellate Tribunal by its decision given  on  November 20,   1950,   dismissed  the  appeal  with   the   following observations on the point mentioned above. "  With  regard to the last point our view is  that  as  the Government  had-the authority under section 6 of the Act  to fix  time  limit  for submitting an award it  had  also  the necessary  and  incidental power to extend  the  time  limit originally fixed, if it considered it necessary.  The  first proviso  to section 3 empowers the Provincial Government  to add  more  matters  for adjudication.  It  is  obvious  that additions  to the matters already referred to would  or  may take more time than what had been originally estimated,  and so ,it may lead to an impossible position if the  Government had no power to extend the time originally fixed by it,  and it makes no difference, in our opinion, whether the time  is extended  before or after the expiry of the time  originally limited." The present appeal is against that decision of the Appellate Tribunal but limited to the question hareinbefore mentioned. Dr. Tek Chand appearing in support of this appeal urges that the  adjudicator derived his authority under the order  made by Notification No. 637, dated February 18, 1950.  Section 6 (1) provides that the adjudicator " shall, within such  time as  may  be  specified,  submit  its  award  to  the   State Government." The time specified by the order was " not later than  April  5,  1950."  On the  expiry  of  that  time  the adjudicator  became  functus  officio and bad  no  power  or authority to make the award.  It is true that two 448 more issues were, by the two subsequent orders, added to the list of issues to be determined by the adjudicator but those issues, Dr. Tek Chand submits, did not involve any  detailed investigation into facts necessitating any further time  for making  the award.  Learned counsel contends that  the  U.P. Act  under  consideration has no  provision  empowering  the State Government to enlarge the time for the making of’  the award  by  the adjudicator.  ’In the circumstances,  if  the State  Government took the view that the addition  of  those two issues would render the time’ specified in the  original

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order  inadequate for the purpose it should  have  cancelled the  previous notification and issued a  fresh  notification referring all the issues to the adjudicator and specifying a fresh  period  of  time  within which he  was  to  make  his award..’  The  State Government did not adopt  that  course. What  it purported to do was to extend the time  for  making the  award  not  only after the time  originally  fixed  had expired  but  also  after  the  award  had,  actually   been submitted.   The  argument  is that even  assuming  but  not admitting that the State Government had the power to  extend the  time  before the time had expired it certainly  had  no power  to  do so after the award had been made, for  it  was meaningless,  urges Dr. Tek Chand, to extend the time to  do an  act  which bad already been done.  He refers us  to  the decision of the Judicial Committee in Baja Har Narain  Singh v. Chaudhrain Bhagwant Kuar(1) where it was held that  under the  Code of Civil Procedure of 1882 the Court had no  power to extend the time for making the award after the award  had been  filed.  Section 514 of that Code enabled the Court  to grant  a further time and from time to time to  enlarge  the period  for  the  delivery  of the  award  but  section  521 provided that no award shall be valid unless made within the period  allowed by the Court.  Their Lordships of the  Privy Council took the view that it would not have been  competent for  the Court to extend the time after the award  had  been made, for once the award was made (1)  L.R. 18 I.A. 55; 13 All. 300 444 and  delivered the power of the Court under section 514  was spent  and that although the Court had the fullest power  to enlarge the time under that section as long as the award was not  completed  it no longer possessed any such  power  when once  the  award was made. in order to give full  effect  to section  521  the  Judicial Committee  had  to  confine  the exercise of the power to extend the time given to the  Court by section 514 to a point of time before the award had  been made.  This decision was relied upon by Mr. Justice Harring- ton sitting singly on the Original Side of the Calcutta High Court  in Shib Krishna Dawn & Co. v. Satish Chander  Dutt(1) which was a case governed by the Code of 1908.  The  learned Judge  overlooked-the  fact that paragraph 8 of  the  Second Schedule  to the Code of 1908 which corresponded to  section 514  of  the Code of 1882 expressly conferred power  on  the Court  to allow further time and from time to  time,  either before  or after the expiration of the period fixed for  the making  of  the  award,  to enlarge  such  period  and  that paragraph  15 which corresponded to section 521 of the  Code of  1882  contained no provision that an award made  out  of -time  was  ipso facto invalid and  -that  consequently  the reasoning underlying the decision of the Judicial  Committee in the case of Raja Narain Singh v. Chaudhrain Bhagwant Kuar (2)  had  no application to the case before him,  which  was governed  by  the  Code  of  1908.   Having  regard  to  the difference in the language of the relevant provisions of the two Codes, the correctness of the decision of Harrington  J. was doubted by Mr. Justice Chitty also sitting singly on the Original Side of the Calcutta High Court in Sri Lal v. Arjun Das(3).  Eventually the, decision of Mr. Justice  Harrington was  dissented  from by a Division Bench of  the  same  High Court sitting in appeal from the Original Side in Jetha  Lal Laxmi Chand Shah v. Amrita Lal Ojha(4), which held that  the Court  had  power to enlarge the time for making  the  award even after the award had (1) I.L.R.38 Cal. 522.       (3) 18 C.W.N. 1325. (2) 18 I.A. 55.  (4) I.L R. [1938] 2 Cal. 482;42 C.W.N. 833.

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445 actually  been  made.   The  learned  Judges  in  the   last mentioned  case referred to and relied on the -case of  Lord v.  Lee(1). Reference has also been made by learned  counsel for  the respondents to Dentron v. Strong (2) and  toMay  v. Harcourt  (3).   It will be noticed that all  those  English cases  were  decided  under section 15  of  the  Common  Law Procedure Act, 1854 (17 & 18 Vic , c. 125).  It is true that in  that English statute there was no provision similar  to- section  521  of our Code of 1882 which was noticed  by  the Privy   Council  in  the  case  cited  by  Dr.  Tek   Chand; nevertheless section 15 of the English statute like  section 514 of the Code of Civil Procedure of 1882 corresponding  to paragraph  8 of the Second Schedule to the  Civil  Procedure Code  of 1908 and like section 9 of the English  Arbitration Act,  1889,  corresponding  to  section  12  of  the  Indian Arbitration  Act,  1899, empowered the Court, from  time  to time, to enlarge the time for making the award.  There is  a similar provision for enlargement of time in section 148  of our  Civil  Procedure Code of 1908.  There is,  however,  no similar  provision  in the U. P.  Industrial  Disputes  Act, 1947.   Section 6(1) of that Act peremptorily  requires  the adjudicator  to submit his award to the State  Government  " within such time as may be specified " and not "within  such time  as  may  from  time  to  time  be  specified."  It  is significant that the only occasion when the State Government can, under the U. P.  Act, specify a fresh period of time is when  it  remits the award for  reconsideration  under  sub- section  (2)  of  section 6, for under  subsection  (3)  the adjudicator   is  enjoined  to  submit  his   award,   after reconsideration,  within such period as may be specified  by the State Government.  Even in this case, under section 6(2) and (3) the State Government may in the order remitting  the award   specify  a  time  within  which  the  award,   after reconsideration,  must  be filed.  This gives power  to  the State Government to fix a fresh period of time to do a fresh (1)  (1868) L.R. 3 Q.B. 404. (2)  (1874) L. R. 9 Q.B. 11 7, (3) I.P.R. 13 Q. B.D. 688, 446 act, namely, to reconsider and file the reconsidered  award. It  does not give the State Government any power to  enlarge the  time  fixed originally for the initial  making  of  the award.  Therefore, except where ,the State Government  under section 6 (2)remits the ’award for reconsideration it has no power even to specify a fresh period of time and much less a power to extend the time for the initial making of the award under section-6 (1).  In exercise of the powers conferred by clauses (b), (c), (d) and (g) of section 3 and section 8  of the  U. P. Industrial Disputes Act, 1947, the  Governor  was pleased  to make an order embodied in Notification  No.  615 (LL)/XVIII-7  (LL)-1951, dated March 15, 1951.  The  proviso to rule 16 of that order authorised the State Government  to extend  from  time  to  time the  period  within  which  the Tribunal  or the adjudicator was to pronounce the  decision. These rules were, however, not in force at the time material to  the case before us.  Learned counsel appearing  for  the respondent  and  for  the State of Uttar  Pradesh  have  not referred us to any similar rule which, was in force in 1950. In view of the language of section 6 of the U. P. Act and in the  absence of a rule like the proviso to rule 16  referred to  above  it must follow that the State Government  had  no authority  whatever to extend the time and  the  adjudicator became  functus officio on the expiry of the time  specified in the original order of reference and, therefore, the award

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which had not been made within that time must be held to  be without  jurisdiction and a nullity as contended by Dr.  Tek Chand. Learned  counsel  for  the  respondents  refers  us  to  the provisions  of section 14 of the U. P. General Clauses  Act, 1904, which provides that where by any Uttar Pradesh Act any power  is conferred on the State Government then that  power may  be  exercised from time to time as  occasion  requires. Sections 3 and 4 of the U. P. Industrial Disputes Act, 1947, certainly  confer  power on the State  Government  to  refer disputes to an adjudicator for decision 447 and  section  6  (1) may be read  as  empowering  the  State Government to specify the time within which the  adjudicator to  whom an industrial dispute is referred for  adjudication is  to submit his award.  The combined effect of section  14 of the U. P. General Clauses Act and section 6(1) of the  U. P.  Industrial Disputes Act, 1947, it is contended, is  that the  adjudicator  is enjoined to submit his  report  "within such  time as may from time to time be specified " and  that this  being  the position, the principles laid down  in  the English  decisions  referred  to above must be  held  to  be applicable  to  the present case.  We are unable  to  accept this  line  of  reasoning.  Under section 14 of  the  U.  P. General  Clauses Act the State Government may  exercise  the power  conferred  on it by sections 3, 4 and 6, that  is  to say, it can from time to time make orders referring disputes to  an adjudicator and, whenever such an order of  reference is made, to specify the time within which the award is to be made.  -This power to specify the time does not  and  indeed cannot include a power to extend the time already  specified in an earlier order.  The legislative practice, as evidenced by  the  provisions of the different  statutes  referred  to above,  is  to expressly confer the power  of  extension  of time,  if  and  when the legislature thinks fit  to  do  so. There is no question of any inherent power of the Court  and much  less  of  the Executive  Government  in  this  behalf. Section  14  of the U. P. General Clauses Act  does  not  in terms,  or by necessary implication, give any such power  of extension  of time to the State Government  and,  therefore, the Respondents can derive no support from that section. Learned  advocate  for the Intervener, the State  of  Uttar Pradesh,  draws  our attention to section 21 of  the  U.  P. General  Clauses Act, 1904, and contends that the  order  of April  26,  1950,  should  be  taken  as  an  amendment   or modification,  within the meaning of that section,-  of  the first order of February 18, 1950.  It is true that the order of  April  26, 1950, does ex facie purport to  rectify,  the order of 448 February  18,  1950,  but, in view of  the  absence  of  any distinct provision in section 21 that the power of amendment and  modification  conferred  on the Government  may  be  so exercised  as to have retrospective operation the  order  of April  26, 1950, viewed merely as an order of  amendment  or modification,  cannot,  by virtue of section 21,  have  that effect.    If,  therefore,  the  amending   order   operates prospectively, i.e., only as from the date of the order,  it cannot  validate  the award which bad been  made  after  the expiry  of  the  time specified in the  original  order  and before the date, of the amending order, during which  period the adjudicator was functus officio and had no  jurisdiction to  act at all.  We do not think the respondents can  derive any  support  from section 21 of the U. P.  General  Clauses Act.

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The  result, therefore is that this appeal must  be  allowed and  the award must be declared to be null .and void and  we order  accordingly.   In the circumstances of this  case  we make no order as to costs. Appeal allowed. Agent for the appellant: Ganpat Rai. Agent for the respondent: S. D. Sekhari. Agent for the intervener: C. P. Lal.