Jagdish Sahai, J.:— The petitioner, Central Distillery and chemical works Limited (hereinafter referred to as the Distillery) is a limited liability company incorporated under the Indian companies Act. It is engaged in manufacturing power alcohol. One sri Jagdish Prasad Sharma (hereinafter called sharma) was employed as a turner in the Distillery. The management of the Distillery served a charge-sheet dated 9th July, 1956 on Sharma on 10th July, 1956. In that connection, an Enquiry Committee, consisting of Sri S.S Singhal, Secretary of the Distillery, Sri B.N Khanna, Chemist of the Distillery and Sri Mahendra Singh, one of the workmen of the Distillery was appointed to investigate into the charges against Sharma. On the basis of the report of the Enquiry Committee, the management of the Distillery held sharma guilty of gross mis-conduct and by their order dated 20th July, 1956, which was served on sharma on 27th July, 1956, dismissed him from service. By its order dated the 18th December, 1956 the State Government referred the following dispute for adjudication by Sri K.K Pandey, Regional Conciliation Officer who was appointed Adjudicator:

“Whether the employers have wrongtully and/or unjustifiably terminated the services of Sri Jagdish Prasad Sharma? if so, to what relief is fie entitled?”

2. The Adjudicator gave his Award and the State Government by means of notification No. 3625 (ST)/XXXVI-A-51(ST)/1956 dated October 5, 1957 enforced the Award for a period of one year with effect from 5th of October, 1957. The Distillery then filed the present petition on 31st of October, 1957. The prayer in the petition is for the issue of a writ of certiorari or order or direction in the nature of certiorari quashing the order of the State Government enforcing the Award. The matter came up before a learned Single judge (V.D Bhargava, J.) who referred this case to a Division Bench. We have heard Mr. S.C Khare for the petitioner, Mr. R.C Verma for the respondent No. 3, the central Distillery Mazdoor Union, and the learned Junior standing Counsel for respondents Nos. 1 and 2, the State of Uttar Pradesh and Sri K.K Pandey, the Adjudicator respectively. The submissions that were made before the learned Single Judge, were repeated before us. They are as follows:

(1) The order of reference by the State Government was bad inasmuch as it did not contain reasons for referring the matter to the Adjudicator and not an industrial Tribunal.

(2) The Award of the Adjudicator was without jurisdiction inasmuch as he held that even though sharma was guilty of misconduct, the punishment awarded to him was excessive.

(3) After the coming into force of the U.P industrial Disputes Amendment and Miscellaneous Provisions Act, 1 or 1957, there was no jurisdiction to enforce an award given by an Adjudicator.

(4) The Adjudicator was Bound to pronounce the Awara which he did not do with the result Wat the Award is invalidated.

3. No other point was urged before us.

4. we will take the submissions made by the learned counsel seriatim.

5. Coming to the first point, admittedly, the present case is governed by the order notified by the State Government dated 14th July, 1954 read with the provisions of the industrial Disputes Act, 194/(U.P Act No. 28 of 194/). The opening words of the notification read as follows:

“Whereas it is necessary in the opinion of the State Government so to do for securing the public safety and convenience and the maintenance of public order and supplies and services essential to the life of the community, and for maintaining employment:

Now, therefore, the Governor of Uttar Pradesh, in exercise of the powers conferred by Clauses (b), (c) and (g) of Section 3 and Sections 6-A and 8 of the U.P Industrial Disputes Act, 1947 (U.P Act No. 28 of 1947), and in supersession of Government Order No. 615(LL)/XVIII-7(LL)-1951, dated March 15, 1951, is pleased to make the following Order and to direct, with reference to Section 19 of the said Act, that notice of this Order be given by publication in the official Gazette.”

6. Cl. 11 of the Order reads as follows:

“11. Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time either of its own motion or after considering the report of the Conciliation Board made under sub-cl. (3) or Cl. 5, or on an application made to it, by order in writing refer any dispute to the Industrial Tribunal, or if the State Government considering the nature of the dispute or the convenience of the parties so decides, to any other person specified in that behalf for adjudication (hereinafter called the Adjudicator).”

7. It is contended by the learned counsel for the petitioner that under the provisions of Cl. 11 of the Order, an industrial dispute could normally be referred to an Industrial Tribunal but if the State Government, considering the nature of the dispute or the convenience of the parties so decided, it could also be referred to an Adjudicator. The order of reference in the present case is in the following words:

“Government of Uttar Pradesh

Labour (A) Department

No. 2993 (LC)/XVIII-LA-285(MRO)/1956,

Dated Kanpur, December 18, 1956.

ORDER: Whereas an industrial dispute in respect of the matter hereinafter specified exists between the concern Known as Central Distillery and Chemical works, Ltd., Meerut, and its workmen and whereas in the opinion of the Governor, it is necessary so to do for the maintenance of public order and for maintaining employment;

8. Now, therefore, in exercise of the powers conferred by Sections 3, 4 and 8 of the U.P Industrial Disputes Act, 1947 (U.P Act No. 28 of 194/) and in pursuance of the provisions of cl. 11 of G.O No. U-464 (LL)/XXXVI-B-257/(LL)/1954, dated July 14, 1954, as amended and extended from time to time, the Governor is pleased to refer the said dispute to Sri K.K Pandey, Regional Conciliation Officer, Meerut, who shall adjudicate on the following issue in accordance with the provisions of the aforesaid G.O No. U-464-(LL)/XXXVI-B-257(LL)/- 1954, dated July 14, 1954, as amended and extended from time to time;

MATTER OF DISPUTE

“Whether the employers have wrongfully and/or unjustifiably terminated the services of Sri Jagdish Prasad Sharma it so, to what relief is he entitled?

Sd/- O.N Misra,

I.A.S,

joint secretary.”

9. It was contended by the learned counsel for the petitioner that in the absence of a recital in the referring order mentioned above that the State Government had applied its mind to the facts of the case and had thought it proper, after considering the nature of the dispute, or considering the convenience of the parties, to refer the matter of dispute to an Adjudicator, the order of reference is bad in law. Learned counsel placed reliance upon a Bench decision of this Court dated 22nd of April, 1957 in Special Appear No. 3/6 of 1955 (All) wherein it was held that unless mere is a recital in the order of reference that either on the ground of the nature of the case or convenience of the parties, the State Government referred the matter to an Adjudicator, the order of reference would be bad. The learned Judges have, however, held that in the absence of there being a recital in the order of reference, affidavits could be filed or other material placed before the Court to snow that the Government had considered the question of the nature of the case of the convenience of the parties before making the reference. We consider that the absence of such a recital is not fatal and are fortified in our view by a decision of the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P, AIR 1961 SC 1981 where, while dealing with a similar submission, their Lordships observed as follows:

“The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited, will not take away the power to make the order which had already arisen and led to the making of the order. The validity of the order, therefore, does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore, follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order, the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in tact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law.”

10. In the decisions in The State of Bombay v. Pursnottam Jog, AIR 1952 SC 317, Biswabhusan Naik v. State Of Orissa, AIR 1954 SC 359 and in the State of Bombay v. Bhanji Munji, (S) AIR 1955 SC 41, the Supreme Court took a similar view and held that evidence in such matters can be adduced before the Court even though there is no recital in respect of the same in the impugned order or notification. Inasmuch as in the copies provided to the respondents, no ground had been taken of the absence of the recital and no challenge had been made to the referring order on that ground, we, by means of the order dated 5th of October, 1961 permitted the respondents to file such an affidavit.

11. (His Lordship, after considering the affidavit filed on behalf of the respondents (c.f paras 9, 10) proceeded as follows:—)

12. For the reasons stated above, we have come to the conclusion that the State Government did in fact address itself to the question as to whether or not the nature or the case of the convenience of the parties required its being referred to an Adjudicator and after doing so referred it to him. Consequently, we are of the opinion that there is no substance in the first submission of the learned counsel of the petitioner.

13. We will now come to the second ground raised by learned counsel for the petitioner, i.e that the award or the Adjudicator was without jurisdiction to the extent that it went into the question of excessiveness of punishment. The submission of the learned counsel is that the management has unfettered discretion in the matter of punishment and that inasmuch as the Adjudicator had held sharma guilty of misconduct, howsoever slight, it was prevented from going into the question as to whether the punishment of dismissal was appropriate or excessive.

(His Lordship after referring to the findings recorded by the Adjudicator proceeded:)

14. On the basis of these findings the Adjudicator held that the services of Sri Sharma were wrongfully and unjustifiably terminated and that he should be reinstated with continuity of service and be paid wages for the unemployment period together with all emoluments and money value or all facilities and concessions which he would have enjoyed had he been in active service. The Adjudicator also awarded Rs. 50/- as costs to the Union.

15. It has not been contended that the findings recorded by the Adjudicator were not based on evidence. In fact we have carefully gone through the award of the Adjudicator and feel fully satisfied that the findings recorded by him are not only based on evidence but are eminently reasonable and just. We are not impressed with the submission of Mr. Khare that the Adjudicator did in fact find sharma guilty of misconduct. The findings of the Adjudicator with regard to misconduct, as we have shown above, are extremely qualified and it is clear that the whole trouble started because the management took the most unjust attitude of deducting Rs. 15/- from the wages of Sharma without snowing it in the pay sheet and other documents. In other words the management wanted Sharma to accept Rs. 15/- less than what they were showing to have paid. In the circumstances the Tribunal rightly held that Sharma could not be accused of any misconduct. It is true that the Tribunal found in effect that Sharma should not have obstructed other people from accepting their wages, but it has also been categorically found that this he did only for a very short while and that too because he was acting under righteous indignation. It is therefore not correct to say that the Adjudicator actually found him guilty of misconduct.

16. In any case, even if this finding amounted to slight misconduct on the part of Sharma, we are satisfied that the Adjudicator also intended to hold that the punishment of dismissal imposed on him was actuated not by the motive of punishing a fault but of victimising a person whose trade union activities were not pleasant to the management. Therefore, in effect, the finding is that the punishment was awarded not as a corrective measure but in order to get rid of a person who was not persona grata with the management. We are not satisfied that in taking this approach of the matter the Adjudicator did anything which was beyond his jurisdiction. No case has been brought to our notice in which facts are similar to those before us. Our attention was invited to Caltex (India) Ltd. v. E. Fernanoes, (S) AIR 1957 SC 326 for the proposition that an industrial Tribunal or an Adjudicator has no jurisdiction to go into the question of excessiveness of punishment. Having carefully perused the decision we are of the opinion that the ruling is distinguishable as pointed out by the Adjudicator and in any case, does not help the petitioner. All that their Lordships have laid down in that case is that the measure of punishment to be meted out is within the sole discretion of the employer and the Tribunal or the Adjudicator cannot interfere with it but that is only in a case where the employer is not actuated by any mala fide or unfair labour practice or victimisation, and not in a case where the enquiry has been unfair. We have already shown above that the Adjudicator, on the basis of the evidence produced before him, recorded a clear finding that not only the enquiry was not fair, it was also made at the back of Sharma and further that the punishment awarded to Sharma by the management was to victimise the former. If anything, this case goes against the petitioner distillery.

17. Our attention was then invited to Laksnmi Devi Sugar Mills Ltd. v. Pt. Ram Swamp, (S) AIR 1957 SC 82. That case also does not support the petitioner because their Lordships have clearly held that a Tribunal would not be concerned with the measure of punishment or with its harshness

“except perhaps to the extent that it might bear on the question whether the action of the management was bona fide or was actuated by the motive of victimization.” the next case on which reliance was placed by the learned counsel is Shri Hanuman Jute Mills v. Shri Amin Das & Another, (S), AIR 1957 SC 194. That case also clearly lays down that in case or unfair labour practice or victimisation even the question of punishment can be gone into by a Tribunal. We find notnutg, in G. McKenzie and Co. Ltd. v. Its Workmen, AIR 1959 SC 389 on the basis of which it can be held that the awards of the Adjudicator in the present case is void. All that case lays down is that the question of misconduct and punishment is normally the preserve of the management, but it their action is actuated by bad faith, caprice or discrimination and is vindictive and amounts to unfair labour practice or victimization the Tribunal has ??? jurisdiction to go into all questions. Reliance was next placed upon Indian Iron and Steel Co. Ltd. v. Their Workmen, AIR 1958 SC 130. In our judgment that case too does not support the contention of the learned counsel and Were? also it was held that a Tribunal or an Adjudicator would have complete jurisdiction to interfere in a case where the management had been guilty of victimisation or unfair labour practice and there had been a basic error of failure of the principles of natural justice in the enquiry against the workman. All these cases can be used in order to support and uphold the award of the Adjudicator in view of his findings to which no exception can be taken.

18. It may also be mentioned that in American Direct Tea Trading Co. Ltd. v. Workmen of Nahartoli Tea Estate, 1961 2 Lab LJ 625 (SC) the Supreme Court clearly explained their decision in AIR 1958 SC 130 (Supra) in the following words:—

“It seems from this fact that. It was practically accepted before the industrial Tribunal that there was no proper managerial enquiry and it was left to the Industrial Tribunal to decide for itself whether the dismissal of Dhameshwar was Justified. In these circumstances there was no scope far the application of the principles laid down in ??? Iron and Steel Co. 1958-1 Lab LJ 260 : AIR 1958 SC 130 which applies only when a proper managerial enquiry has been held…….”

19. In Punjab National Bank, Ltd. v. Workmen., AIR 1960 SC 160 their Lordships held that

“In domestic enquiries, the principles of natural justice must be followed and the employee against whom Disciplinary action is sought to be taken must be given a charge-sheet, evidence against him must be recorded in his presence and he must have an opportunity to rebut the said evidence.” It is only in a case where the management has held a proper enquiry and the punishment awarded is a bona fide one and inflicted with a view to punish for the wrong committed but not with a view to victimise a worker that the ??? Tribunal or a Labour Court would have no jurisdiction to go into the question of quantum of punishment. But so far as we are aware it has never been held by any Court that even though an enquiry is made at the back of the workman and the punishment of dismissal is awarded quite in disproportion to the fault committed by him and only with a view to victimise him the Tribunal or the Adjudicator would have no jurisdiction to go into the question of punishment. For the reasons mentioned above we are satisfied that there is no substance in the second submission of the learned counsel also and we have no hesitation in rejecting it.

20. We will now address ourselves to the ??? submission of the learned counsel leaving the ??? one for the present. It is contended that inasmuch as the Adjudicator did not pronounce the award in open Court in the presence of the parties it ??? void. Reliance was placed upon the provisions of Cl. 7 of the Government Order notified on the 14th of July, 1954. That provision reads as follows:

“7. The decision of the Tribunal shall be in writing and shall be pronounced in open Court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it:

Provided that nothing shad be deemed to prevent a member from recording a minute of dissent to the award or decision.”

21. It would be noticed that in terms Cl. 7 applies only to a Tribunal and not to an Adjudicator. It was however contended by Mr. Khare that what is good for the Tribunal is also good for the Adjudicator, and even though cl. 7 may not specifically mention an Adjudicator but is confined only to a Tribunal it should be so read as to include an Adjudicator also. We are unable to read something in cl. 7 which does not exist there. It would be noticed that whenever the Order required the Adjudicator to act in a manner similar to the Tribunal or where common procedure for both was Intended it clearly provided for it.

22. For example, cl. 18 of the Order requires a Tribunal, or an Adjudicator to hear dispute and give its or his decision

“Within 180 days (excluding holidays but not annual vacations observed by Courts subordinate to the High Court) from the date of reference made to it or him by the state Government”,

and to

“thereafter, as soon as possible, supply a copy or the same to the parties to the dispute, and to such other persons or bodies as the State Government may in writing direct.”

23. Similarly cl. 19 provides that the decision or award or the Tribunal or Adjudicator shall remain in operation for a period of one year, or for such shorter period as the Tribunal or the Adjudicator may fix. It is therefore obvious that the order has specifically provided the extent to which the Adjudicator has to conform to the Rules intended for the governance of the Tribunal, and it is not possible for us to extend the scope of those provisions beyond their statutory limits, it is also noteworthy that in the order notified on March 15, 1951, which preceded the present Order cl. 16 clearly provided that

“the Tribunal or the Adjudicator shall hear dispute and ‘pronounce’ (underlined (here in ???) by us) its decision within forty days. Therefore the scheme of that Order was that even an Adjudicator had to pronounce his decision or award, but in the present Order that has not been provided for with the result that it must be held that the departure is deliberate. We have, therefore, no hesitation in rejecting this submission of the learned counsel also.

24. We now advert to the third submission of the learned counsel but before we deal with the merits of the contention, it would contribute to a clear understanding of the question before us if we mention that the U.P industrial Disputes Act, 1947 (hereinbelow referred to as the Act) is a much amended Act, and notice the relevant amendments introduced in 1953 by means of U.P Act Mill of 1954 and in 1957 by Acts I and XXIII of that year. Sec. 6 or the Act as it stood before the commencement of U.P Act I of 1957 was as follows:

“6(1) When an authority to which an industrial dispute has been referred for adjudication has completed its enquiry, it shall, within such time as may be specified, submit its award to the State Government.

(2) The State Government may either enforce for such period as it may specify all or any of the decisions in the award; or, either of its own motion or on application made to it, remit the award for reconsideration.

(3) The adjudicating authority shall, after reconsideration and within such period as may be specified by the State Government submit its award; the State Government may then enforce for such period as it may specify an or any of the decisions in the award.”

25. By means of the Amending Act No. XXIII of 1953 Sec. 6-A was introduced in the Act. That provision reads as follows:

“6-A. Enlargement of time for submission of awards — 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 within 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.”

26. The U.P Act I of 1957 extensively amended the Act, and the amendments came into force with effect from 16th April, 1957. Admittedly, the present reterence was made before the 1957 amendments were introduced in the Act and enforced. One basic change that was brought in by means of the Act I of 1957 was that whereas in the unamendea Act there were no direct provisions for the establishment of Industrial Tribunals or Labour Courts and with regard to the manner in which reterence of disputes was to be made to them and the same could be done only under an order promulgated under Sec. 3 of the Act, after the amendment there are direct provisions in respect of these matters in the Act itself. The unamended Sec. 6-A was substituted by a fresh provision bearing the same number (hereinafter referred to as the new Sec. 6-A). it read as follows:

“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 S. 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 Inquiry as it considers necessary, is satisfied that the same has been given or ??? through collusion, traua or misrepresentation.

(2)………..

(3)…………

(4)…………

27. Sections 16 and 17 of the U.P Act No. 1 of 195.read as follows:

“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, 194/(U.P Act No. XXVIII of 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.”

“17. Removal of transitional difficulties.

(1) The State Government may for the purpose of removing any difficulties particularly in relation to the transition from the provisions of the principal Act to the provisions of that Act as amended by this Act, by order direct that the Principal Act amended as aforesaid and any rules or orders framed or issued under the Principal Act, shall during the period of two years next after the commencement of this Act have effect subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary or expedient.

(2)……”

28. We may also mention that Sec. 6, as it originally stood, has been substituted by a new section bearing the same number by means of Act I of 1957. It reads as follows:

“6.(1) Where an industrial dispute has been referred to a Labour Court or Tribunal for adjudication, it shall hold its proceedings expeditiously and shall as soon as it is practicable on the conclusion thereof, submit its award to the State Government.

(2) The award of a Labour Court or Tribunal shall be in writing and shall be signed by its Presiding Officer.

(3) Subject to the provisions of sub-sec. (4) every arbitration award and the award of a Labour court or ??? shall, within a period of thirty days from the date of its receipt by the State Government, be published in such manner as the State Government thinks fit.

(4) The State Government may before publication or an award of a Labour Court or Tribunal under sub-sec. (3), remit the award for reconsideration of the adjudicating authority, and that authority shall, after reconsideration submit its award to the State Government, and the State Government shall publish the award in the manner provided in sub-sec. (3).

(5) Subject to the provisions of Section 6-A, an award published under sub-sec. (3) shall be final and shall not be called in question in any Court in any manner whatsoever.

(6)…….”

29. Sec. 16 of the Act I of 1957 was also amended by U.P Act No. XXIII of 1957 and the following words were added thereto:

“And the provisions of Section 6-A of the Principal Act shall remain enforceable with reference to such a proceeding.” It is contended that as Sec. 6 now stands the award of the Adjudicator in the present case cannot be entorcea under its provisions. The argument is that the awards that can be enforced under sec. 6 are those which have been made on a reference to a Labour Court as defined in Sec. 4-A or a Tribunal as defined in Sec. 4-B and must be an award within the meaning of that word in the Act it may be stated that Act 1 of 1957 substituted the original definition of award by a new one and sec. 2(c) in its present form reads as follows:—

‘2(c) ‘Award’ means an interim or final determination of any industrial dispute or of any question reeling ??? by any Labour Court or Tribunal and includes an arbitration award made under S. 5-B.”

30. The submission is that an award by an Adjudicator is not comprehended within the word “award” as now ??? and consequently the State Governement could not get that award published under sub-section (3) of the new Sec. 6. The argument is that as the Act stands now ??? all the amendments there is no provision in it for the publication and enforcement of an award made by an Adjudicator under the provisions of the Order notified on the 14th of July, 1954. It is contended that the only provision under which such an award could be enforced was the old Sec. 6 which having been replaced by a new provision, bearing the same number, has no legal existence and cannot be invoked in their aid by the respondents in the present case. The submission on behalf of the respondents on the other ??? is that in the first place the word “award” occurring in the new Secs. 6 and 6-A should be widely construed ana, secondly, that in any case the provisions of Sec. 16 of U.P Act I of 1957 save the proceedings already started and provide for their continuance as if Act No. I of 195.had not been passed. Special emphasis is laid on the words added to that section by Act XXIII of 1957 which we have already reproduced on the last page and which make the provisions of Section 6-A of the Principal Act enforceable in respect of proceedings started before Act I of 1957 was enforced.

31. It appears to us that it is not possible to extend the definition of the word “award” so as to include the awards of the Adjudicators given under the Order notified on the 14th of July, 1954 read with the unamended Act. It is a well accepted principle of construction that when a word has been defined by the statute it can have no other meaning than the one given to it by the definition clause. Nothing has been pointed out to us on behalf of the State to justify the conclusion that in the new Secs. 6 and 6-A the word ‘award’ has been Used in a wider sense than its definition in Sec. 2(c) of the Act. We have already said above that the scheme of the Act was drastically change by Act I of 1957. The definition of ‘award’ as now given had necessarily been framed to tit in with the changed conations, and it is obvious that it cannot be streched to embrace in its fold matters which do not find place in the amended set up of the Act. We, therefore, reject the submission of the respondents that the award of the adjudicator in the present case can be comprehended by that word occurring in the new Secs. 6 and 6-A of the Act.

32. However, after having given our anxious consideration to the submission made at the Bar and to the language or Sec. 16 of Act I of 1957 we have come to the conclusion that by the aid of that provision the award in the present case can be enforced. Sec. 16 clearly provides that it any proceeding was pending immediately before the commencement of Act I of 1957 in relation to an industrial dispute before any authority constituted under the Act 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. The scheme of the Act and the Order notified on the 14th of July, 1954 was that a reference could be made only by the State Government to a Tribunal or an Adjudicator. The Adjudicator or the Tribunal had no jurisdiction to directly entertain and adjudicate upon an industrial dispute and their jurisdiction was confined only to deciding such disputes which were referred to them by the state Government, Even after the Adjudicator or the tribunal had given the award they could not themselves enforce it and had, under the provisions of unamended sec. 6(1), to submit the same to the State Government. Once that was done the State Government was free under sub-sec. (2) of the unamended Sec. 6 either to enforce the award for such period as it may specify or to remit the same for reconsideration by the Tribunal or the Adjudicator whoever had given the award. The Government was not bound to entorce the whole award and it was quite free to accept only some and not all the decisions in the award. The point is that the industrial disputes were to originate before the Government and were also to be finally closed by it. The Adjudicator could neither open proceedings of a reference nor close it. The question therefore that requires ??? is whether it can be said that, from the date when the State Government refers the dispute to the date when me award is received tack by the Government and enforced, any proceeding is pending before it. In other words can it be said that once the State Government has referred the dispute to an Adjudicator and before the award is submitted by him the same is pending only before him and the matter in no form is pending before the State Government.

33. The contention of the learned counsel for the petitioner is that no sooner the reference of the dispute is made to an Adjudicator or a Tribunal the State Government loses an jurisdiction in the matter, and is seized of the matter again only when the award is submitted to it. In other words, it is contended that during the period the matter is before the Adjudicator it cannot be said that it is also pending before the State Government, and that inasmuch as the reference in the present case was already made before Act I of 1957 came into force the matter was pending before the Adjudicator who had not till then given the award, and not before the State Government. Cl. 15 of the order notified on 14-7-1954 is clear, and even the learned counsel for the petitioner has conceded, that even though a reference may have been made by the State Government to a Tribunal or an Adjudicator the Government retained the power to withdraw the same at any stage. Therefore the legal position is that even during the limited period when the reference was before the Adjudicator the Government did not lose seizin over the case, in other words the control of the Government throughout continued over the proceedings, and it cannot be said that the matter was not pending before them or they had become ??? officio even at the stage when the Adjudicator was seized of it the position of the Government is analogous to that of a Civil Court when it sends a particular issue for decision by a revenue Court or to that of a revenue Court when it sends an issue of a case before it for decision by a Civil Court. It cannot be said that no proceedings are pending Before the civil or the revenue Court during the pendency of the proceedings relating to the decision of the referred issue Before the revenue or the Civil Court as the case may be.

34. Analogy is also provided by the provisions of the U.P Consolidation of Holdings Act where, under Sec. 12(5), a reference by the Consolidation Officer is made to the Civil Court for remitting a dispute to the Arbitrator for decision. It cannot be said that when the proceedings are pending before the Civil Judge or the Arbitrator the Consolidation Officer ceases to have jurisdiction over the matter or even the proceedings. Similarly, if a suit is ??? to an Arbitrator for decision can it be said that during the period the matter is before the Arbitrator the suit is not pending in the Court which referred the matter to the Arbitrator, the position being that the suit is ??? and after the award of the arbitrator is ??? it has to become a rule of the Court before it would have effective force. We are, therefore, unable to hold that in this particular case when the provisions of Act I of 1957 came into force no proceedings were pending, before me State Government.

35. Learned counsel for the petitioner has not brought to our notice any decision in this connection which may support his contention. All that he has been able to contend is that there is a lacuna in the Act and it never struck the legislature that there were earlier proceedings pending from before on the date of the enforcement of the provisions contained in Act I of 1957 and ??? in failed to make any provision for it in the Act. It is new settled that a lacuna cannot be easily assumed in an Act and in any case in view of our interpretation of Sec. 10 there is no question of a lacuna.

36. In the alternative, it is contended that the legislature in the shape of Sec. 17 of Act I of 1957 had conferred ample powers on the State Government to

“direct that the Principal Act amended as aforesaid and any rules or orders framed or issued under the principal Act shall during the period of two years next after the commencement” of Act 1 of 1957, “have effect subject to such adaptations, whether by way of modification, addition of omission, as it may deem to be necessary or expedient,”

and that inasmuch as the State Government did not keep alive the unamended Sec. 6 the award cannot row be ??? it is true that the State Government did not pass any order under Sec. 17 keeping alive the provisions of the ??? Sec. 6 for two years next after the commencement of Act a of 1957, but that, in our opinion, would not ??? in the awards prior to the amendment of 195.being ??? enforceable. We have already held above that Sec. 15 of the Act 1 of 1957, even without the words added to it by Sec. 8 of Act XXIII of 1957, would save the ??? started and the awards made before the passing of Act ??? of 1957, and the same can be enforced under the unamended Sec. 6 read with cl. 19 of the Order published in the State Gazette dated the 14th of July, ???.

37. It has been contended that Section 15 ??? of an authority constituted under the U.P industrial dispates Act, 194/, and that inasmuch as the State Government has not been created an authority under the U.P industrial Disputes Act any proceedings before it cannot be saved by Sec. 16 of the Act. We are not impressed with this argument. It is true that the State Government ??? ever before Act XXVIII of 1947 was passed and has not been created thereunder. In our view the word ‘constitutes’ has been used in a wider sense and includes not only the authority created under the Act but also contemplated by the Act. It is well established that in order to avoid ??? contusion and absurdity it is permissible to ??? the meaning of a word. (See Shamrao v. Parulekar District Magistrate, Thana, Bombay, AIR 1952 S.C 324. Grey v. Pearson, (1857) 6 H.L.C 61 at p. 106, Narayan Swaml v. Emperor, AIR 1939 PC 47 and Salman v. ???, (1885) 11 AC 627 at p. 634).

38. In the present case confusion and injustice would be ??? it awards on the basis of references which were ??? cannot be enforced because of amendment of Act XXVIII of 1947 in 1957. It would not be perverting the expressions “any authority constituted under the U.P industrial ??? Act, 1947” if we hold that it includes not only the ??? created by it but also contemplated by it such as the State Government. We, therefore, hold that Section 16 applies even to proceedings before the State Government.

39. It was next contended that the provisions of Section 1.are mandatory and inasmuch as the State Government did not issue any order under that section the law has to take its own course and the awards cannot be enforced. In the first place, whether Sec. 1.is mandatory or not it cannot affect the provisions of Sec. 16, and inasmuch as we have already held above that the proceedings were pending before the State Government the award could, by virtue of Sec. 16, be enforced under Sec. 6 of the unamended Act read with Cl. 19 of the Order published on 14th July, 1954; and secondly, we are not satisfied that in fact Section 17 is mandatory. That section uses the word ‘may’ which prima facie suggests that it is not mandatory but directory. Apart from it, it is an enabling section which confers some power on the Government which power it would not otherwise have. The Government cannot be enforced to exercise that power, and a perusal or the section itself leads to the conclusion that it is not mandatory but directory in nature. It was held in Banwari Lal v. State of Bihar, AIR 1961 SC 849, as follows:—

“As has been recognised again and again by the courts, no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity, or only directory, i.e a direction the non-observance of which does not detail the consequence of invalidity, whatever other consequences may occur. But in each case the court has to decide the legislative intent. Did the legislature intend in making the statutory provisions that non-observance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same”.

40. On the basis of this authority and that of Drigraj Kuer v. Amar Krishna Narain Singh, AIR 1960 SC 444 where the following was laid down it cannot be said that considering the language of Sec. 16 it was a mandatory provision:

“But it is well known that the use of the word “shall” is not conclusive of the question. …. The intention of the legislature has to be gathered from the whole statute”.

41. See also Hari Vishnu Kamath v. Anmad Isnaqus, (S) AIR 1955 SC 233 which was relied on in this case.

42. We are therefore satisfied that the provisions of Sec. 17 are not mandatory. It may also be stated that even if it be assumed that the Government had no option in the matter and was required to pass orders under Sec. 1.it would not be a mandatory provision for the simple reason that the Government could not be forced by the parties who were being adversely affected by such an order not being passed to pass one. All that parties or the public could do was to request the State Government to pass an order but they could not compel It. In Montreal Street Railway Company v. Normandin, AIR 1917 P.C 142, the Judicial Committee observed as follows:—

“When the provisions of a statute relate to the performance of a public duty and the case is such that to now null and void acts done in neglect of this duty would wont serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, such provisions are to be held to be directory only, the neglect of them through punishable, not attesting the validity of the acts done”.

43. For the reasons mentioned above we are not impressed with the submission that merely, because the State Government did not pass any orders under Sec. 17 on Act I of 195.the present award made prior to the amendment cannot be enforced.

44. We may also state that, in our opinion, by virtue of the words added by means of Act XXIII of 1957 to S. 15 of Act I of 1957 the pre-amendment awards can also be enforced under Sec. 6-A of the Act as it stands today, it was contended that what has been made applicable are the provisions of the original Sec. 6-A and not the amended Sec. 6-A. Sec. 8 of the U.P Act No. XXIII of 195 by which these words were added to Sec. 16 reads as follows:

“8. In Section 16 of the Uttar Pradesh Industrial Disputes (Amendments and Miscellaneous Provisions) Act, 1956, the following words shall be and be deemed at all times to have been added in the end:

“And the provisions of Sec. 6-A of the Principal Act shall be applicable with reference to such a proceeding”. It is clearly provided that these words would be deemed to have always existed. The preamble of the U.P Act No. XXIII of 1957 reads as follows:

“Whereas it is expedient to amend the U.P Industrial Disputes Act, 1947, for the purposes. Hereinafter appearing…….”

45. The preamble shows that Act No. XXIII of 1957 was clearly brought in to amend the 1947 Act. At the time when Act XXIII of 1957 was enforced Sec. 16 was already a part of the 1947 Act having been inserted therein by virtue of Act 1 of 1957. Consequently, the words “Principal Act” clearly mean U.P Act No. XXVIII of 1947 as amended by U.P Act No. 1 of 1957. Reference to section 6-A in the words added to Section 16 obviously is to Sec. 6-A which was brought in by Act I of 195.and cannot refer to the original Sec. 6-A which stood repealed by Act I of 1957. Act XXIII of 1957 also amended Section 17 of Act 1 of 1957. The words which were by Sec. 8 of Act XXIII of 1957 added to Sec. 16 originally found place in Sec. ??? Those words were taken away from that section and added to Sec. 16. The view that Sec. 6-A of the Principal Act mentioned in the words added to Sec. 16 refers to Sec. ??? in the 1947 Act, as it stood after the inclusion of the provisions introduced by Act I of 1957, finds support from AIR 1952 SC 324 (Supra) where their Lorosnips observed as follows:—

“The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a pan of itself, into the earlier, then the earlier Act must there after be read and construed (except where that would lead to a repugnance, inconsistency or abusurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all”.

46. Sections 2 to 15 of U.P Act No. 1 of 1957 which include the new sections 6 and 6-A were incorporated or merged into the main Act i.e Act No. XXVIII of 1947 while Ss. 16 and 17 stand apart and were not ??? of being bodily lifted and placed in Act XXVIII of 1947 because they were not of a permanent nature and were not intended to be a part of Act XXVIII of 1947. Consequently there can be no escape from the conclusion that Sec. 6-A mentioned in the words added to Sec. 16 is the new Sec. 6-A and not the old one.

47. It is also noteworthy that in U.P Act no XXIII of 1957 U.P industrial Disputes Act, ??? as amended from time to time has been referred to as the Principal Act, and whenever any amendment was made to the provisions of the Act as amended from time to time the Act was referred to as U.P Act No. XXVIII of 1947, but when amendment of Secs. 16 and 17 was made the Act was referred to as the Uttar Pradesh Industrial Disputes (Amendment and Miscellandus Provisions) Act, 1956, (Act No. 1 of 1957). To illustrate the point a reference may be made to Sec. 7 of Act XXIII of 1957 which reads as follows:—

“7. After Sec. 6-R of the Principal Act the following shall be inserted as new Secs. 6-S to 6-0.”

48. A reference to Secs. 8 and 9 of the same Act shows that while amending Secs. 16 and 17 of Act I of 1957 the legislature did not make a reference to the principal Act but to the U.P Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, which is no other than Act I of 1957.

49. It appears to us that because of the fact that Sec. 2 of Act XXIII of 1957 is in the nature of a definition clause and provides a key for the explanation of the expression “Principal Act” and on the principle that the same word occurring in a statute at different places must be given the same meaning unless the context otherwise inquires and if in doing so a manifest contradiction of the apparent purposes of the enactment or some inconvenience or absurdity, hardship or injustice, presumably not intended, is caused, the words “principal Act” in Sec. 8 must on given the same meaning as they have in S. 2 of Act No. XXIII of 1957. Section 2 of Act XXIII of 1957, so far as relevant for our purposes, is in the following words:—

“2. In Section 4-E of the U.P Industrial Disputes Act, 1947 (hereinafter referred to as the principal Act) for sub-section (1) the following shall be substituted”.

50. Against this view of ours the submission of the learned counsel is that this section clearly states that by the words “Principal Act” is meant the original U.P Industrial Disputes Act, 1947 (Act No. XXVIII of 1947) and not the amended one. Inasmuch as Sec. 4-E was brought in Act No. XXVIII of 1947 by means of Act No. 1 of 1957 the words “in Section 4-E of the U.P Industrial Disputes Act, 1947” occurring in section 2 of Act No. XXIII of 1957 obviously mean the U.P Industrial Disputes Act, 1947, as amended and inclusive of the provisions inserted by Act 8 of 1957 and cannot mean the Act in the original form. Therefore when Section 2 speaks of the U.P Industrial Disputes Act, 1947, as the Principal Act it clearly is returning to the Act including the amendments, and not as it was originally passed. The only substantial submission against the view that the reference to Sec. 6-A in the last line of Sec. 16 which was introduced therein by Sec. 8 of Act XXIII of 1957, is not to the unamended section but to the amended one, is that sec. 8 of Act XXIII of 1957 itself provides that the words added to Sec. 16 would be deemed at all times to have been added in the end”. In other words, it is contended, that Sec. 16 should be read in the following manner right from the date of the enforcement of Act I of 1957:

“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, ‘and the provisions of Sec. 6-A of the Principal Act shall remain enforceable with reference to such a proceeding’.” (underlined (here into ‘’) by us).

51. The argument, therefore, is that inasmuch as in Act I of 1957 the reference to the Principal Act was to the unamended Act XXVIII of 1947, the reference to Sec. 6-A in Sec. 16 must be deemed to the unamended Sec. 6-A. It cannot be said that the sub-mission is completely without substance. In fact the submission is based upon the view that our brother Mathur took in India Reconstruction Corporation Ltd. v. J.N Srivastava, Civil Misc. Writ No. 731 of 1958 connected with Civil Misc. Writ Nos. 732 to 735 of 1958 D/- on 3-5-1960 (All), but having given our anxious consideration to the argument we have come to the conclusion that even though Acts I of 1957 and XXIII of 1957 have not been very ably dratted which has resulted in some contusion, Sec. 6-A referred to in the lines underlined in Sec. 16 can have reference only to the amended Sec. 6-A and not to the unamended one. The reason why we have come to this conclusion is that the word “deemed” means the one which in reality is not but has to be treated as such by legal fiction. (See Commissioner of Income Tax, Bombay v. Bombay Trust Corporation Ltd., AIR 1930 P.C 54 and State of Bombay v. Pandurang Vinayak, AIR 1953 S.C 244 at p. 246).

52. The legal effect of making the lines underlined (here into ‘’) a part of Section 16 is to import a legal fiction and to say that even though in fact these lines did not exist in Section 16 on the date when that section was enforced, they would be treated to have existed. But the principle of legal fiction cannot be stretched too far and cannot be used to override the express provisions of Sec. 2 of Act XXIII of 1957 which clearly provide that a reference to the Principal Act is reference to Act No. XXVIII of 1947 as amended by Act I on 1957 and other earlier amending Acts. It appears to us that by oversight or due to a drafting error care was not taken while framing section 8 of Act XXIII of 1957 to clearly provide that the words “Principal Act” occurring in the lines that were intended to amend Sec. 16 had reference to the amended Sec. 6-A. However, it is well settled the want of skill in drafting a provision does not go to the root of the matter and should not affect the correct interpretation of the statute. (See (1886) 11 A.C 627, Mewa Kumarl v. Bourey, AIR 1934 All 388 and Oudh Sugar Mills v. State of U.P, AIR 1960 All 136 (FB).

53. It has also been urged before us that the words which we have underlined in Sec. 16 wrongly found then place in Sec. 17 and not in Sec. 16 of Act I of 1957, and that by means of Sec. 8 of Act XXIII of 1957 the legislature corrected the drafting error and added those words to Sec. 16 after deleting them from Sec. 17. The submission of the learned counsel, therefore, is that if these words had actually found place as they should have in Sec. ??? it is obvious that the expression “Principal Act” occurring in the words underlined could have reference only to the provisions of Act XXVIII of 1947 as it stood before the amendment by Act 1 of 1957, and consequently the reference to Sec. 6-A in the words underlined must be reference to the unamended Sec. 6-A and not to the amended one. There is nothing on which we can hold that the words underlined have wrongly been shown in sec. 17 by a drafting error. Therefore the very foundation for the submission is wanting, and as we have already pointed out earlier that Sec. 2 of Act XXIII of 1957 is almost conclusive of the matter, it is not possible for us to read the words “Principal Act” occurring in any part of Act XXIII of 1957 in any other sense than that of Act XXVIII of 1947 as amended by Act I of 1957.

54. On behalf of the workman and the State it was also contended that, by virtue of Section 6 of the General Clauses Act, the provisions of Sec. 6-A as it stood before the amendment by Act I of 1957 would be applicable to the present case and the present award could have been published and enforced under that provision. This argument was made only in the alternative. In our judgment there can be no application of Section 6 of the U.P General Clauses Act in the present case. That section saves the proceedings already started under a repealed Act. The present is not a case of a repealed Act but of amendments in an existing Act. In our view, therefore, Section 6 of the U.P General Clauses Act is not applicable to the facts of the present case.

55. Our attention was invited to the decision of Tandon, J. dated 22nd July, 1959 in Civil Misc. Writ No. 899 of 1959 connected with Civil Misc. Writ No. 1025 of 1958 (All) and that of Mathur, J. in Civil Misc. writ No. 1025 of 1958 (All), which we have already referred to above. With great respect to our learned brothers we have not found ourselves in a position to accept the conclusion that Sec. 6-A referred to in the lines underlined and added to section has reference to the unamended S. 6-A. Tandon, J. was also of the view that the award given in a reference made before the enforcement of Act I of 1957 could not be enforced under Sec. 6 by virtue of Sec. ??? of Act 1 of 1957, but in this respect Mathur, J. did not agree with him. For the reasons which we have given in this judgment we find ourselves unable to agree with Tandon, J. and agree with the conclusion of Mathur, J.

56. In view of the above conclusions we are of opinion that there is no substance in the third ground also urged by learned counsel, and the petition is liable to be dismissed.

57. The only question that now remains to be considered is that of costs. There were several hearings in this case and the case had to be adjourned with a view to enable the respondents to file supplementary affidavits in order to meet the submissions which were being made in Court but in connection with which no grounds had been taken or allegations made in the copies of the Writ petition and the affidavit filed in support of it which were provided to the respondents. Adjournment was also occasioned because learned counsel for the petitioners wanted to cross-examine Mr. Pant who had filed an affidavit on behalf of the respondents. It is obvious, therefore, that the ordinary cost of Rs. 51/- would be far too insufficient in the circumstances of the present case. In our judgment the petitioner should pay a sum of Rs. 200/- as costs to the respondents i.e Rs. 100/- to respondents Nos. 1 and 2 and another Rs. 100/- to respondent No. 3. The result is that the petition is dismissed with costs which we assess at a figure of Rs. 200/-.

CG/U/D.V.C

58. Petition dismissed.