C.P Sarathy v. State Of Madras & Another.

ORDER OF REFERENCE TO A BENCH

(Somasundaram, J. 9-8-1950)

This is a petition by the accused to quash the criminal proceedings in C.C No. 4097 of 1950 on the file of the Third Presidency Magistrate, Egmore.

The above proceedings arise out of a charge sheet filed by the police against the petitioner who is the Managing Director of Prabhat Talkies, Broadway, Madras. The circumstances under which the police filed the charge sheet are these. On a report by the Commissioner of Labour that an Industrial Dispute had arisen between the workers and the management of the Cinema Talkies in the city of Madras and that an amicable settlement could not be arrived at the, Government by G.O No. 2227 dated the 20th May 1947 referred the dispute to the Industrial Tribunal, Madras for adjudication under S. 7 (1) and (2) read with S. 10(1) (c) of the Industrial Disputes Act. The Tribunal passed an award on 15--12-1947 and the Government by its G.O No. 677 dated 13-2-1948 declared the said award shall come into operation on 25-2-1948 and shall remain in force for a period of one year. It would therefore have normally expired on 24-2-1949.

In the meantime in respect of an award made by the Tribunal constituted for the purpose on a reference made by the Government in an industrial dispute alleged to have arisen between the workers and the managements of certain Engineering firms and type foundries, on application made by one of the firms (Kutty and Rao) Subba Rao J. held that a general notification of this kind without specification of either the disputes or the firms in which the disputes have arisen is not competent. This decision was affirmed on appeal by a Bench of this court in Ramayya Pantulu v. Kutty and Rao (Engineers) Limited [1949] M.W.N 143 where Horwill and Rajagopalan JJ. held,

“the reference made by the Government was not competent because of the generality of the application of the notification.”

It may be stated that the reference in this case also is of such general nature that the award will fall within the scope of the decision in the above case.

As a result of the above decision, the legislature of the State (then Province) amended the Industrial Disputes Act of 1947 by Act XII of 1949. The State had power to amend the Central Act as the subject was in the concurrent list of the Government of India Act and the assent of the Governor-General was obtained. S. 5 of the Act declared that all awards made…… whether before or after such commencement by such tribunal shall be deemed to he valid. S. 6 of the Act declared that

“All awards passed by Industrial Tribunals and mentioned in the schedule hereto which could not be enforced on account of the proceedings before the High Court, shall be current and valid for a further period of one year from the commencement of this Act.”

The award in this dispute between the management and the workers of Cinema theatres is mentioned in the schedule referred to above.

On the authority of the Government the police have now filed a charge sheet dated the 24th April 1950 against the petitioner herein for an offence under S. 29 of the Industrial Disputes Act, 1947. The allegation is that the petitioner has not implemented the provisions of the award relating to payment of wages and dearness allowance with retrospective effect from 20—5—1947 and 1—1—1948. It is not disputed that there has been implementation of the award from 25—2—1948 and the increment was given from 1—3—1949, but the offence consists in non-implementation in terms of the provisions of the award. The further allegation is that as per the award no chief ticket examiner and advance booking clerk have been appointed.

In this petition to quash the proceedings, several contentions have been raised by Mr. Jayarama Ayyar for the petitioner. One of the contentions is that before the amendment which came into effect on 14-6-1949 the failure to implement the award would not be an offence as the award under the decisions of this court is an invalid one and the amendment is an ex post facto legislation and this, so far as it is retrospective in the field of criminal law, is forbidden (1) on the general principles and (2) under the Constitution.

Taking the first as to its being forbidden on general principles, it is based on the well-recognised policy of all civilized countries, viz, that

“a legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with the future acts and ought not to change the character of past transactions carried on upon the faith of the then existing law.”

The above quotation is from the “Law in Making” by C.K Allen, extracted by Govinda Menon J. in In re E.P.T Velayndhan15. In the above decision the learned Judge who has dealt with the question exhaustively has pointed out how the ex post facto legislation is not prohibited so far as England is concerned. No authority has been cited before me that in Indian law it is otherwise. In my opinion the argument based on the ground of policy fails.

The other contention and the more important one is that the amendment, i.e S. 5 of Act XII of 1949 offends Arts. 13 and 20 of the Constitution. The argument is that the award which was declared to come into operation on 25—2—1948 was an invalid one and as it had otherwise also expired by 24—2—1949 there was no law in force at the time of the commission of the offence for the violation of which the petitioner can be convicted i.e if the award was valid it would be an offence not to implement it before 25—2—1949 by which date it had expired and as it was not an offence on account of the award being invalid, the petitioner cannot be convicted subsequent to 26—1—1950 (the date on which the Constitution came into force), for non-implementation. It appears to me that there is considerable force in this argument of Mr. Jayarama Ayyar, Mr. Govind Swaminathan, State Counsel, meets this argument by contending that the amendment does not create any new offence but it only cares the irregularities that existed before and that it cannot in any sense be called retrospective or ex post facto legislation. S. 29 of the Industrial Disputes Act under which the petitioner is liable was already there and the amendment having been passed prior to 26th January 1950, validating the awards and keeping them current for one year from commencement of the Act (see S. 6) i.e from 14—6—1949 and as the charge sheet was filed on 14—4—50, Art 20 of the Constitution has not been violated. In short as the award is valid in law from 14—6—1949 and it was in force by virtue of S. 6 till 14—6—1950 the non-implementation of it between these two dates is a violation of a law in force and this does not in any manner contravene Article 20 of the Constitution. I am inclined to agree with this view. The other question relating to this that is raised by Mr. Jayarama Ayyar is that S. 5 of the Amending Act only says that the awards will be deemed to be valid. The words deemed to be valid mean that though the award is not valid in reality the amendment requires it to be treated as if it were real. The question then is whether a citizen can be punished as for an offence for not carrying out the provisions of an award which is not in reality valid but has to be regarded so by virtue of the Amending Act. Whatever validity can be given to the awards generally, such a validity cannot be extended to the field of criminal law is the contention of Mr. Jayarama Ayyar. The question, in my opinion, is not free from doubt and it is one of considerable importance.

Another contention of Mr. Jayarama Ayyar is this. That under S. 6 of the Amending Act, all awards by the Industrial Tribunals and mentioned in the schedule hereto which could not be enforced on account of the proceedings before the High Court shall be current etc. It is not disputed, and it is conceded by the learned State Prosecutor that in respect of the award in the dispute between the management of cinema theatres and workers which is one of those mentioned in the schedule, there were not proceedings before the High Court. Could it be said that the award could not be enforced on account of the proceedings before the High Court as there were none relating to this award?

Mr. Govind Swaminathan says that the unenforceability on account of the proceedings before the High Court means on account of the decision of the High Court in Ramayya Pantulu v. Kutty and Rao. The section does not seem to be happily worded. It lends itself to the interpretation given to it by Mr. Jayarama Ayyar, that the enforceability of the award must be due to some proceedings relating to the award pending in the High Court. It is contended that in none of the four awards mentioned in the schedule was any proceedings pending in the High Court and S. 6 which makes it current for one year will not apply if the construction sought to be placed upon it by Mr. Jayarama Ayyar is accepted. A decision on this question is likely to affect such proceedings that may have to be started if any, in respect of other awards mentioned in the schedule or in respect of awards about which there are no proceedings in the High Court. This question also, in my opinion, is of importance. I consider that it is desirable that these questions should be decided by a Bench of this Court. I therefore direct that this case may be posted before the Criminal Appellate Bench.

Govinda Menon, J.:—The South Indian Cinema Employees Association is a body registered in September 1946 as a trade union by the Labour Commissioner, under The Indian Trade Unions Act (Act XVI of 1926). It contains, amongst its members a large body of employees of the various cinemas and picture houses in the city of Madras, including the Prabhat Talkies, the Managing Director of which is the petitioner in this court. Some, and not all the employees of the Prabhat Talkies, were members of this trade union in 1946. On 8—11—1946, this trade union submitted a memorandum to the. Labour Commissioner of Madras demanding increased wages, dearness allowance, annual bonus of three months' wages, increased leave facilities, provident fund and the adoption of proper procedure in imposing punishments. On this memorandum, the Labour Commissioner interviewed the representatives of some of the Cinema Talkies and finally submitted a letter to the Government on 13—5—1947 to appoint an Industrial Tribunal for adjudication of the matters referred to in his letter. Thereupon, on the 20th May 1947 by G.O Ms. 2227 Development, the so called dispute was referred to a tribunal with the following order of reference:

“Whereas an Industrial Dispute has arisen between the workers and managements of the Cinima Talkies in the Madras City in respect of certain matters:

And whereas in the opinion of H.E The Governor of Madras it is necessary to refer the said industrial dispute for adjudication;

Now, therefore, in exercise of the powers conferred by Section 7 (1) and (2) read with section 10 (1) (c) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947) His Excellency the Governor of Madras hereby constitutes an Industrial Tribunal consisting of one person, namely, Sri Dewan Bahadar K.S Ramaswamy Sastry, Retired District and Sessions Judge and directs that the said industrial dispute be referred to that tribunal for adjudication.

3. The Industrial Tribunal may, in its discretion, settle the issues in the light of a preliminary enquiry which it may hold for the purpose and thereafter adjudicate on the said industrial dispute.

4. The Commissioner of Labour is requested to send copies of the order to the Managements of Cinema Talkies concerned.”

The Industrial Tribunal proceeded to conduct the “enquiry, framed issues and finally passed an award embodying its findings on the issues raised for decision. The said award provided for the type of employees in the various cinemas, the number of employees in each category, the basic pay and the annual increments per mensem of each of the employees and various other matters. It also dealt with the dearness allowance to be paid to the employees, the bonus which each employee should get, the period of leave per year, provident fund, gratuity, overtime payment, confirmation, increment, and such matters. It further provided that these recommendations should be given effect to in respect of basic wages from the 20th May 1947, when the proceedings before the tribunal commenced and that the other recommendations should be given effect from the 1st January 1948. By G.O No. 667, Development Department, dated 13-2-1948, the Government of Madras accepted the award and declared the same to be binding for one year, the enforceability of which was to come into operation from 25-2-1948, and enure thereafter till 24-2-1949.

On 24-4-1950, the Sub-Inspector of Police, Central Crimes Department filed a charge-sheet before the Third Presidency Magistrate, Egmore, against the petitioner on the ground that though according to the award, the management of the Prabhat Talkies ought to have implemented the same in respect of wages and dearness allowance with retrospective effect from 20-5-1947 and 1-1-1948 respectively, the same was not given effect to in the manner provided for in the award but that the wages and the dearness allowance were implemented only from 25-2-1948 and the increments were given only from 1-3-1949. Such being the case, the award had been contravened and moreover it is alleged in the charge sheet that the Prabhat Talkies did not employ a Chief Ticket Examiner and an advance booking clerk as required by the award. Hence the charge sheet complained that the managing director of the Prabhat Talkies was liable for an offence punishable under S. 29 of the Industrial Disputes Act, (Central Act XIV of 1947.) The Magistrate took the case on file and issued notice to the person accused of the offence. The accused took the objection that the court has no jurisdiction to proceed with the enquiry because the award itself was void and ultra vires with the result that no offence has been committed. The objection having been overruled the petitioner came up to this court to quash the proceedings before the learned Magistrate and our learned brother Somasundaram J considered that the case involved important questions of law which necessitated its decision by a Bench and that is how this criminal miscellaneous petition comes on before us for disposal.

Before elaborating the contentions on either side, it will be useful to have a bird's eye view of the legislative provisions on which the prosecution justifies the filing of the charge sheet. Prior to 1926, on the anvils of the statute book in India, there had been no enactment providing for the registration and recognition of trade unions and defining the law relating to such trade unions, though Acts of Parliament on the subject of trade unions were prevalent in England long prior to that. Act XVI of 1926 provided for the registration of trade unions, the rights and liabilities of registered trade unions, the regulations regarding the same and various other matters. The expressions “trade dispute” and “trade union” were also defined, the former meaning any dispute between employers and workmen, or between workmen and workmen, or between employers and employers which is connected with employment or non-employment, or the terms of employment or the conditions of labour of any person; and the latter term as meaning any combination whether temporary or permanent formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and is said to include any federation of two or more trade unions. The word “workmen” was also defined as meaning all persons employed in trade or industry, whether or not in the employment of the employer with whom the trade dispute has arisen. For the purpose of the present case, it may not be useful to notice the various provisions of the Act dealing with the subject of trade unions. By Act VII of 1929, the Central Government undertook further legislation making provision for the investigation and settlement of trade disputes and for other purposes. This statute provided for reference of disputes to courts of enquiry and to Boards of conciliation and special provisions were made for illegal strikes and lock outs. It was by Act XIV of 1947 that the Government of India enacted for the investigation and settlement of industrial disputes and the preamble stated that “it is expedient to make provision for investigation and settlement of industrial disputes and for certain other purposes”. S. 2 clause (k) defines an “industrial dispute” as a 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 the conditions of labour of any person. Clause (j) defines “industry” as any business, trade undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. Clause (s) defines workmen as meaning any person employed (including an apprentice) in any industry or any skilled or unskilled manual or clerical work for hire or reward and includes, for the purpose of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Crown. S. 7 provides for the appointment of industrial tribunals by appropriate Government. S. 10 (1) is as follows:

“If any industrial dispute exists or is apprehended, the appropriate Government, may by order in writing (a) refer the dispute to a Board for promoting a settlement thereof, or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for enquiry; or (c) refer the dispute to a Tribunal for adjudication: Provided that where the dispute relates to a public utility service and a notice under S. 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 to do so, make a reference under this sub-section notwithstanding that any other proceeding under this Act in respect of the dispute may have commenced.”

S. 15 deals with the duties of the tribunals of which sub-sec. (2) states that on receipt of an award from the tribunal, the appropriate Government shall, by order in writing declare the award to be binding. There is a provision that where the appropriate Government is a party to the dispute, they have to perform certain other duties as well. S. 19, sub-sec. (3) states that an award declared by the appropriate Government under S. 15 to be binding, shall come into operation on such date as may be specified by the appropriate Government and shall remain in operation for such period not exceeding one year as may be fixed by that Government. The penalty for failure to implement the award is contained in section 29 to the effect that if any person commits a breach of any term of any settlement or award which is binding on him under the Act, he shall, on his first conviction therefor, be punishable with fine may extend to two hundred rupees and in the event of a second or subsequent conviction with fine which may extend to five hundred rupees. The Government of Madras which claims to have power to legislate regarding such matters, as being included in the concurrent list of the Government of India Act of 1935, amended the Industrial Disputes Act, 1947 by Madras Act XII of 1949. The Act was called the Industrial Disputes (Madras Amendment) Act of 1949. It amended sections 2, 10 and the schedule to Central Act XIV of 1947. After sub-sec. (2) of S. 10 of the Central Act another sub section was inserted as sub-sec. 2-A which laid down that notwithstanding anything contained in sub-sects, (1) and (2) of S. 10, where a Tribunal has been constituted under this Act for the adjudication of disputes in any specified industry or industries and a dispute exists or is apprehended in any such industry, the employer or a majority of the workmen concerned may refer the dispute to that tribunal. The result of the insertion of the new sub sec. (2A) is that whereas prior to its enactment, the reference to an industrial tribunal can be made only by an appropriate Government, after the coming into operation of S. 10(2-A), the employer or a majority of the workmen concerned can refer the dispute to the tribunal. By the Amending Act, two new sections are enacted, viz., Ss. 5 and 6 and a schedule was also added to this enactment. Ss. 5 and 6 and the schedule are as follows:

5. “Where, before the commencement of this Act, any Industrial Tribunal has ‘been constituted by the Provincial Government under the said Act all proceedings taken, all awards made and all other acts and things done, whether before or after such commencement, by or before such Tribunal in connection with any industrial dispute shall be deemed to be valid and shall not be called in question in any court of law on the ground that the Tribunal was not constituted in accordance with the provisions of the said Act or the dispute to which the proceeding, award, act or thing relates was not referred to the Tribunal in accordance with such provisions.

Nothing contained in this section shall be deemed to invalidate any decision or order of a court which became final before the commencement of this Act.

6. All awards passed by Industrial Tribunals and mentioned in the Schedule hereto which could not be enforced on account of the proceedings before the High Court shall be current and valid for a further period of one year from the commencement of this Act.”

Schedule :—

1. The Motor Transport award.

2. The award in the dispute between the Managements of Cinema Theatres and Workers.

3. The awards in the disputes between the Beedi workers and Managements.

4. The awards in the disputes between the Cigar Workers and Managements “.

There can be no doubt that the second item of the schedule, viz. the award in the dispute between the Managements of Cinema Theatres and Workers, refers to the award which is the subject matter of consideration in this case. More recently, the Parliament of India has passed Act XLVIII of 1950 providing for the establishment of an Appellate Tribunal in relation to industrial disputes and for certain other matters incidental thereto. In this enactment. Industrial Tribunal among other matters is defined as any Industrial Tribunal constituted under Act XIV of 1947. S. 20 of Act XLVIII of 1950 provides that any money due from an employer under any award or decision of an industrial tribunal may be recovered as arrears of land revenue or as a public demand by the appropriate Government on an application made to it by the person entitled to the money under that award or decision. The combined result of S. 29 of Act XIV of 1947 and S. 20 of Act XLVIII of 1950 is that if an employer does not implement the terms of an award passed by an industrial tribunal, not only can the amount due from him be recovered as arrears of land revenue or public demand, but he can be prosecuted in a criminal court as well.

The first contention raised before us is that Act XIV of 1947 in so far as it makes the employers bound to act in accordance with the terms of an award, which was passed without the employers being consenting parties to the reference and in spite of the protests of the employers is ultra vires by reason of Art. 19 (1) (f) and (g) of the Constitution and that clause (6) of Art. 19 can have no application to this statute because it is not a restriction in the interests of the general public but it is a direction to pay money under a threat. Clauses (f) and (g) of Art. 19 (1) of the Constitution lay down that all citizens shall have the right to acquire, hold and dispose of property; and to practise any profession, trade or business. Clause (6) of Art. 19 is to the effect that nothing in sub-clause (g.) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub-clause, and in particular nothing in the said sub-clause shall affect the operation of any existing law in so far as it prescribes, or empowers any authority to prescribe, or prevents the State from making any law prescribing or empowering any authority to prescribe the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. Cl. (5) says that nothing in sub-cl. (f) shall prevent the State from making any law imposing reasonable restrictions in the exercise of any of the rights conferred by the said sub-clause either in the interests of the general public or for the protection of the interests of any scheduled tribe.

It is contended before us that the member of the Cinema Employees Association cannot be said to be the ‘general public’ and therefore restrictions in their interests cannot come within the ambit of either cl. (5) or cl. (6). For this argument our attention was invited to the observations contained at page 311 of XXXII Halsbury's Laws of England. Paragraph 429 at page 311 makes a reference to industrial courts, arbitration and courts of enquiry and what we are asked to decide is that since in England, without the consent of both the parties the reference of a dispute for settlement to the industrial court for arbitration is not possible, the provisions in the Indian Act by which the appropriate Government is authorised to refer a dispute without the consent of both the parties is illegal. We are not satisfied that sub-cl. (f) and (g) of Art. 19 (1) of the Constitution have any bearing on the present question. There is no restriction put upon acquiring, holding or disposing of property or practising any profession or carrying on any occupation, trade or business. What is sought to be done by these labour legislations is the implementation of the directive principles of State policy contained in Part IV of the Constitution, especially that contained in Art. 43, which states that the State shall endeavour to secure, by suitable legislation to all workers, agricultural, industrial or otherwise work, a living wage, conditions of work, ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Both Act XIV of-1947 and Act XLVIII of 1950 endeavour to secure the industrial worker conditions of work ensuring, a decent standard of life and a living wage. It cannot be said that there is any restriction on the carrying on of a trade or business by the cinema employers, as a result of the Industrial Disputes Act. Whether, in England a reference without consent of both parties is allowed or not because our attention has not been invited to any statute like the Industrial Disputes Act, it cannot be said that the Acts in India have, in any way contravened or set at nought, any provision of the Constitution.

But the more important question that has to be considered is whether the award which has been made on a reference, the terms of which have been set out by us earlier, can be said to be a valid and binding award. The learned counsel contends that there was no material before the State Government to show that there existed any dispute between the workers of Prabhat Talkies and the management at all. The mere fact that some of the workmen of the Prabhat Talkies were members of the Cinema Employees Trade Union, would not give the trade union any authority to create a dispute and have it referred to a tribunal. Secondly, it is contended that the reference does not specify the dispute at all. What is stated in the reference is that an industrial dispute has arisen between the workers and the management of the Cinema Talkies in the city of Madras in respect of certain matters. Awards passed on similar references have been the subject of consideration in this court recently. In Ramayya Pantulu v. Kutty and Rao (Engineer) Limited Horwill and Rajagopalan JJ. had to consider an award passed on a similar reference without specifying what the dispute was. The reference stated that industrial disputes have arisen between the workers and management of certain engineering firms and type foundries in the province of Madras and industrial disputes are apprehended in the rest of the Engineering firms and type foundries in respect of certain matters and therefore an industrial tribunal is constituted and the disputes are referred to such tribunal for adjudication. The learned Judges held that such a reference does not give jurisdiction, for before making the reference, the Government must have reason to believe that in a particular business a definite dispute is known to exist or is apprehended by reason of demands and discussions taking place amongst the workers and the management. This decision was followed in Kandan Textiles Limited v. Industrial Tribunal Madras [1949] M.W.N 819 by the Hon'ble the Chief Justice and Mack. J. Here also the reference was in similar terms and the learned Judges referred to and accepted with approval the dictum in Ranayya Pantulu v. Kutty and Rao (Engineer) Limited at pages 231 and 232. The Government notification in the two cases already referred to are practically in the same terms as the notification which resulted in the award in question, for in none of these cases is the exact industrial dispute specified or any description given of the same. All that is stated is that industrial disputes have arisen between the workers on the one side and the management on the other.

In a more recent case reported in Lakshmanan Chettiar In re3, Subba Rao and Panchapakesa Ayyar JJ. quashed criminal proceedings instituted on the basis of an award passed by a tribunal pursuant to a notification which was invalid. There also the notification was in the same terms as the case referred to already and the learned Judges held that since the notification was illegal, the award was invalid and the prosecution launched on the basis of the illegal award cannot be sustained and the proceedings were quashed. A single Judge, Panchapakesa Ayyar J. in The Calicut Hosieries, Calicut, In re4 set aside the conviction and sentence passed under S. 29 of Act XIV of 1949 on the ground that the reference by the Government to the industrial tribunal was vague and general and therefore invalid and therefore the lock outby the management and the directors of the firm involving the dispute cannot be said to be illegal. He followed the decisions to which reference has already been made, viz. Ramayya Pantulu v. Kutty and Rao (Engineer) Limited and Kandan Textile Limited v. Industrial Tribunal Madras.

Both the learned State Prosecutor and Mr. V.S Chandrasekharan, appearing for the State and the Cinema Employees Union, respectively have contended that the trend of authority out-lined by us above should not be followed in view of the decision of the Federal Court in India Paper Pulp Company Limited v. India Paper Pulp Worker's Union [1949] 12 F.L.J 367. Their Lordships of the Federal Court in that case have laid down that S. 10 (1) of the Industrial Disputes Act does not require that the particular dispute should be mentioned in the reference by the Government to the tribunal. All that is necessary is that the existence of the dispute and the fact that the dispute is referred to the tribunal should be clear from the order. It is further held that when a reference is attacked on the ground that it is not a reference according to law, the court has to read the order as a whole and determine whether in effect the order makes such a reference. The order of the West Bengal Goverment which culminated in the award that was impugned before the Federal court is printed at page 368 of the report. There also all that is stated is that an industrial dispute has arisen between the India Paper Pulp Company Limited … and their discharged workmen, etc. …. In considering whether an award passed on such a reference is valid or not. His Lordship the learned Chief Justice of India observes as follows:—

“On behalf of the appellant it was contended that there was no jurisdiction in the Industrial Tribunal to decide anything because, firstly no dispute was referred to the Tribunal. This is admittedly a technical defence and is based on the wording of the order of the Government of West Bengal dated the 3rd January 1948. In this connection it was pointed out that the Order of the 3rd January 1948 of the Government of West Bengal did not mention any industrial dispute. Secondly, the order, as worded, was only an order of appointment and there were no words of reference to the Tribunal. It was argued that the words “and it is expedient that the said dispute should be referred to a Tribunal” did not constitute a reference: they were in the preamble and did not form an operative part of the order. The order is far from satisfactory and is not carefully drafted, Section 10 (1) of Act XIV of 1947 provides as follows:—”If any industrial dispute exists or is apprehended, the appropriate Government may by an order in writing ….. ……. (c) refer the dispute to a tribunal for adjudication”.

The section does not require that the particular dispute should be mentioned in the order. It is sufficient if the existence of a dispute and the fact that the dispute is referred to the tribunal are clear from the order. To that extent the order does not appear to be defective. S. 19 of the Act however requires a reference of the dispute to the tribunal. The court has to read the order as a whole and determine whether in effect the order makes such a reference.”

Though the judgment of their Lordships of the Federal Court was delivered on the 30th March 1949, we find no reference to the same in the judgment of this court in Kandan Textiles Limited v. Industrial Tribunal, Madras which was delivered on the 26th August 1949. But it is contended by Mr. Jayarama Ayyar that it is possible to distinguish the observations of his Lordship the Chief Justice of the Federal Court because in the case before the Federal Court the dismissed workmen claimed reinstatment on the ground that their services were illegally terminated and therefore there was actually a dispute in existence between the employer on the one hand and the trade union of which the dismissed workmen were members on the other. In the present case it is contended that there is nothing to show that the employees of the Prabhat Talkies made any demand on the management of the talkies which was not acceded to or that any of the employees of the Prabhat Talkies wanted the trade union to take up their matter with the labour commissioner. The award of the arbitrator shows that the Prabhat Talkies was represented before him and that the representative stated that the employees have passed resolutions to the effect that they are content with their service conditions and that there was no matter for adjudication in regard to them. In a separate judgment which my learned brother is about to deliver, he has discussed in extensive detail how the judgment of their Lordships of the Federal Court is not applicable to the facts of the present case. Though at the outset, prima facie I felt that it is not possible to distinguish the circumstances with brought about the award considered by the Federal Court, after perusing my learned brother's judgment I am inclined to agree with his conclusions that the trend of decisions of this court exemplified in the three cases referred to by me above has not been overruled by their Lordships of the Federal Court. I, therefore, do not propose to examine the applicability of that case in any detail, contenting myself with agreeing with my learned brother's conclusion on this point.

Our conclusion that the award is void and inoperative is reinforced by the fact that by Act XII of 1949 the legislature intervened to declare as valid awards of the kind which have become invalid and inoperative on account of the reference not being based upon any tangible industrial dispute. Act XII of 1949 itself contemplates, though not explicitly, but by implication that the ‘present award’ which is mentioned as the second item in the schedule, cannot be enforced on account of High Court proceedings. It seems to us, therefore, that the contention of the learned advocate for the trade union as well as the State Prosecutor that the decision of the Federal Court in India Paper Pulp Company Limited v. India Paper Pulp Workers Union would go to show that the invalidity of the award which would necessarily follow from the decisions of this court cannot be taken into account, cannot be sustained. The State Prosecutor realised that it would be futile to contend about the validity or justifiability of the award in question in view of the amending legislation; but the counsel for the trade union maintained a contrary position and urged vehemently that the award must be held to be valid. He based his contention not only on the applicability of the Federal court's judgment, but also on the fact that the award has not been set aside and should be held therefore to be correct. Basing his argument on the principle that an executing court cannot go behind the decree, Mr. V.S Chandrasekharan pointed out that unless the award has been set aside or quashed by proceedings of this Court, it remains valid and current unlike the awards which have been set aside by decisions of this Court. He invited our attention to the various decisions like Lakshmanan Chettiar v. Chidambaram Chettiar [1934] M.W.N 1377, The Villupuram Urban Co-operative Bank v. Balasubramania Mudaliar [1938] M.W.N 567 and other well-known and familiar cases to show that a court before which a decree is sought to be executed cannot question the correctness of it at all. On the other hand, the principle of law is well-known and very familiar that it is open to the executing court to find out whether the decree, on the face of it, is void and refuse to execute it; e.g a decree passed against a dead person or a decree passed by a court which has no territorial jurisdiction over the properties concerned and other instances. In this case, since we have held that the reference itself was ultra vires and without the pre-requisite of the existence of a dispute between the employers and workmen the award cannot be said to be one which can be enforced and should therefore be deemed to have been void. Further the Bench of this court in Lakshmanan Chettiar In re quashed the proceedings of a criminal case initiated as a result of an invalid award which has not been set aside by proper legal proceedings. Subba Rao and Panchapakesa Ayyar, JJ. interfered under the revisional jurisdiction of the High Court to quash the proceedings instituted before a criminal court under S. 29 of the Industrial Disputes Act for prosecuting an employer for non-implementation of an award which was invalid for want of jurisdiction of the arbitrator on account of the absence of a dispute. Even there the award had not been set aside by proper proceedings before this court. We are inclined to agree with the learned Judges that even if no proceedings had been taken to set aside the award it is possible to quash the criminal proceedings instituted on foot of it, if it is found that the award is the result of conferment of jurisdiction which did not pass on to the arbitrator on account of the absence of any dispute between the contesting parties.

The second line of argument on which the initiation of proceedings has been justified by the counsel for the trade union as well as the State Prosecutor is that even if the award was void and inoperative, Ss. 5 and 6 of Act XII of 1949 which amended the Industrial Disputes Act (Act XIV of 1947) have made the awards mentioned in the schedule thereunder current and valid for a period of one year from the commencement of that Amending Act. It is clear from a reading of those section? that wherever the court has declared awards to be invalid and inoperative on account of the fact that no existing dispute was referred to them, such awards are invalid as a result of the decision of the court. But awards on exactly similar basis which have not been quashed or set aside by proceedings in court have been declared to be current and valid by S. 6. It seems to us that the legislature, in validating awards which have not been quashed by courts and invalidating awards which though apparently are void but have not been so declared by courts, has discriminated between persons to whom the same set of circumstances applied, and therefore offended Art. 14 of the Constitution which provides for equality before the law or the equal protection of law for all persons. Though the legislature recognised that the awards are invalid, it has afforded protection to persons who have approached courts and have secured declarations that awards, based on the same footing as those which have been legislatively held valid, are not current and valid.

The expression “equal protection of the laws” which occurs in the Fourteenth Amendment of the United States Constitution has been explained in several decisions of the courts of the United States. “Equal protection of the laws” means that all parsons and business similarly situated, shall be treated alike. See Hall's Constitutional Law, page 136. At page 478 of Mathews Book on the Constitution of the United States of America, we find a discussion of this phrase. In Yick Wo v. Hopkin's 118 U.S 356, Mathews J of the Supreme Court in delivering the opinion of the court has held that though a law be fair on its face and impartial in appearance, yet if it is administered by public authority with an evil and unequal hand so as practically to make illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. See also page 86 of the American system of Government by Ferguson and Mc Henry first edition, where the subject of equal protection of the laws is discussed. The learned author says that the test is whether the classification is reasonable and appropriate. If it is, then every one within each group must be treated alike. Wil- loughby on the Constitution of the United States, Vol III, Second edition page 1931, discussing the case in Yick Wo v. Hopkins observes that the law or the ordinance, though upon its face not discriminating, was held void for the reason that it gave to designated officials, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent not only as to places but as to persons.

In Truck v. Corrgan 257 U.S 312 Taft C.J considered the question about the validity of an Act of State legislature which prohibited interference by injunctions in disputes between employers and employees concerning the terms or conditions of employment and came to the conclusion that the impugned law resulted in the recognition of one set of actions against ordinary tort-feasors and another set aginst tort-feasors in labour disputes. It is there held that if employers were denied the right to obtain injunctions while such a right was permitted to the employees, then there was the denial of equal protection of laws to one set of persons placed in similar circumstances. What the prohibition against the denial of equal protection of the laws to all persons situated in similar circumstances connotes is that all persons subject to such legislation, shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. See Hayes v. Missour 120 U.S 68. Applying these principles to the interpretation of Art. 14 of the Constitution, one thing is clear that Madras Act XII of 1949 discriminates between such employers as have got a decision from the High Court in a different manner from those that have not. In other words, though the Act envisages that awards, including the one under consideration, are void and inoperative, still because the persons affected by the award have not availed themselves of the remedy allowed by a writ of certiorari they should stand on a different footing from those who have so availed themselves of the remedy. That is, if the Act is considered in relation to employers, then it discriminates favourably with respect to such of them who had recourse to a court of law and affects unfavourably such of those who did net obtain a quashing order though the awards in both categories, are void and inoperative. Conversely the Act, discriminates between employees against whom the award has been set aside and those against whom it has not been though the awards in both the cases are void. If the award is void because no tangible dispute was referred to the arbitrator, it does not become more void by being quashed by proceedings in court. Therefore all awards passed under similar circumstances, some of them declared void by court, while others are not so declared stand on the same footing. It is therefore clear that Act XII of 1949 is a discriminatory piece of legislation which deprives some of the persons situated in the same position from the beneficient effects whereas others who are situated in the same position are conferred those benefits. On this aspect of the case, our conclusion is that though at the time Act XII of 1949 was passed, it could not have been held to be invalid on account of the discrimination contained therein, after 26th January 1950, in view of Art. 13(1) of the Constitution which says that all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this part shall, to the extent of the contravention, be void, it has to be held that the legislation is inconsistant with Article 14, equality before law, and is therefore void.

Under Art. 372 of the Constitution read with Art. 13, all the law in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by a competent legislature. This is subject to the provision that such laws shall not be repugnant to the Constitution. Therefore, even if Act XII of 1949 is not void but is valid and operative, still it has to be considered whether in virtue of the provisions contained in S. 107 of the Government of India Act re-enacted in a similar form in Art. 254 of the Constitution, the amending Act, viz. Act XII of 1949 can have any validity or not. At the time Act XII of 1949 was passed the Government of India Act, 1935 as adapted by the India (Provisional) Constitution Order 1947, was in force. S. 107 of that Act related to inconsistency between Dominion laws and Provincial or State Laws. What was enacted there was if any provision of a Provincial Law is repugnant to any provision of a Dominion Law, which the Dominion Legislature is competent to enact or any provision of an existing law, with respect to one of the matters enumerated in the concurrent list, then subject to the provisions of the section, the Dominion Law, whether passed before or after the Provincial Law, or as the case may be, the existing law shall prevail and the Provincial Law, to the extent of the repugnancy, be void. We find a similar provision in Art 254 as well. We are pressed with the argument that S. 5 of Act XII of 1949 is inconsistent with and diametrically opposite to S. 10 (1) of the Central Act XIV of 1947. S. 10 (1) postulates the existence or the apprehension of an industrial dispute which can be referred to a tribunal for adjudication. That is, the appropriate Government must have before it an existing industrial dispute or should feel that an industrial dispute is apprehended. In such a case, it gets jurisdiction to refer the dispute, existing or potential, to a tribunal. But S. 5 of Act XII of 1949 validates action taken by the tribunal even in cases where no dispute was referred to the tribunal in accordance with the Act. In other words S. 5 envisages and sets the seal of approval on, an award passed by a tribunal without the necessary pre-requisite of a dispute either existing or apprehended so as to form the basis for a reference. It seems to us that if, without any kind of dispute, an appropriate Government refers possible, contingent and future likely disputes to a tribunal and an award is passed on such contingent matters, still such an award will be valid according to S. 5 of the Madras Act. It need hardly be said that S. 5 of the Madras Act XII of 1949 is inconsistent with S. 10 (1) of the central Act of 1947. The result necessarily follows that by the application of S. 107 of the Government of India Act, 1935, and Art 254 of the Constitution the Act which ought to prevail is the earlier Dominion Law i.e S. 10 (1) of Act XIV of 1947 should prevail and it should be deemed as if S. 5 of Act XII of 1949 has not been passed at all. The existing provision of law when Act XII of 1949 was passed was S. 10 (1) of Act XIV of 1947 and as such it should prevail. Madras Act XII of 1949 in its preamble enunciates that it is expedient to amend the Industrial Disputes Act, 1947 in its application to the province of Madras for the purposes appearing thereafter and the Act itself is styled “an Act to amend the Industrial Disputes Act, 1947 in its application to the province of Madras.” Such being the case, the effect and operation of the amending Act on the principal Act has to be considered. Delivering the judgment of the Judicial Committee in Union of South Africa (Minister of Railway and Harbours) v. Simer and Jack Proprietary Mines [19181 A.C 591 596. Lord Surnner observes thus at page 596 of the report:

“In the opinion of their Lordships, it is not a legitimate interpretation of mere amending provisions to hold that they completely alter the character of the principal law unless clear language is found indicating such an intention. The amending words, wide as they are, do not evince any intention to make so radical a change as would be involved if there were thrust into powers to regulate future operations, a solitary power etc.”

Then again at the very outset of the judgment, at page 595 the following sentence occurs with regard to the amending Act:

“The latter amended the former, and is to be read as one with it.”

Therefore the principle of law is clear that amending statutes should be read as part of the original statutes and if that is so, the new S. 5 of Madras Act XII of 1949, if it is to be read along with S. 10 (1) of Act XIV of 1947, would be contradictory to the earlier provision and if a statute contains two such contradictory provisions it is left to the court to infer, from a reading of the other provisions of the statute, which ought to prevail.

To the decision in Kalyanam Veerabhadrayya, In re12 one of us was a party and there at page 680, the scope and effect of an amending Act is considered and it is there laid down that an amending Act is not an independent Act but an Act passed with a view to effect an improvement or to more effectively carry out the purposes for which the original law was passed. Ss. 5 and 6 of Madras Act XII of 1949 cannot, therefore, be considered as valid provisions of legislation because their effect is not to amend an existing Act. It might be to add to the original statute certain provisions but such additions have tended to make the provisions of the existing statute viz. Act XIV of 1947, unworkable.

The learned counsel for the respondent trade union contends that Act XII of 1949 is both an amending as well as a validating Act and that Ss. 5 and 6 constitute a separate Act so far as the State of Madras alone is concerned and therefore the Act should be read as a composite one. Where legislative fields are concurrent between two legislatures, the question has often arisen as to whether when an Act passed by the superior legislature is amended or added to by the inferior legislature the additions and amendments together with the original enactment should be deemed to be the statute law prevailing within the area where the subordinate legislature functions. For example, the Court Fees Act of 1870 which applied to the whole of India was amended with the concurrence of the Governor General in Council during the time when Government of India Act 1919, was in force by the different provinces levying court fee on different standards and separate methods of computation. In such cases it has been understood that in so far as the area over which the subordinate legislature has sway, the additions or amendments together with the original statute would be considered to be the governing enactment. Understood in that way, there is no difficulty in incorporating Ss. 5 and 6 of Madras Act XII of 1949 into the frame work of Act XIV of 1947 if Ss. 5 and 6 of the Madras Act are neither repugnant nor contradictory to the provisions of the existing statute i.e Act XIV of 1947. To that extent the contention of the learned counsel for the respondents is acceptable but the difficulty is that here Ss. 5 and 6 of the Madras Act, as we have held already, cannot be said to fit into the frame work of the original statute as they seem to be repugnant and contradictory to the provisions of Act XIV of 1947.

Another alternative argument put forward by Mr. K.S Jayarama Ayyar is that Act XII of 1949 is invalid because it is not within the legislative competence of the province of Madras to legislate for a subject like the industrial dispute. He relies upon the following expression in S. 107 (1) of the Government of India Act, 1935:

“…………with respect to one of the matters enumerated in the concurrent Legislative List”.

The matters enumerated in the concurrent List regarding Labour Legislation are entries 27 and 29 in List III, 7th schedule which are equivalent to entries 24 and 22 in List III in the 7th schedule to the Indian Constitution. Entry No. 27 in List III of the Government of India Act is as follows:—

“Welfare of labour; conditions of labour; provident funds; employers' liability and workmens compensation; health insurance, including invalidity pensions; old age pensions.”

Entry No. 29 relates to trade unions; industrial and labour disputes. Therefore if Act XII of 1949 is a legislation with respect to one of the matters enumerated in the concurrent list, then the Provincial Legislature has power to enact the law. But Mr. K.S Jayarama Ayyar contends on the authority of the observations of the Privy Council in Attorney General of Saskatchewan v. Attorney General of Canada [1949] M.W.N 627 P.C where the Privy Council interpreted the words “in relation to” when dealing with provisions of the British North American Act, that Madras Act XII of 1949 cannot be considered to be “with respect to a matter” enumerated in the concurrent List. He also invited our attention to Satish Chandra v. Sudhir Krishna [1942] A.I.R.cal 429 433 where the words “with respect to” have been defined. The learned Judges observed that the words “with respect to” mean “on the subject of”. Therefore the question has to be decided as to whether Act XII of 1949 is “on the subject of” the two entries referred to by us above in List III of the Government of India Act of 1935. We see so difficulty whatever in holding that Madras Act XII of 1949 is a legislation “on the subject of” industrial and labour disputes. But it is contended that in pith and substance Act XII of 1949 is intended to validate an invalid statute though it indirectly touches an industrial dispute and as such it cannot be said to be a legislation “on the subject of” industrial disputes. We are unable to accede to this argument. Our conclusion is that the argument of the learned counsel doss not lend any support to the plea that the provincial legislature, as it then was, had no power to enact the Act in question.

The further argument advanced by the learned counsel for the petitioner which was discussed at some length in the order of reference to this Bench by Somasundaram J. deserves a more detailed consideration and that is that the prosecution is not maintainable because the offence complained against the petitioner is the result of ex post facto legislation which is void under Art. 20 of the Indian Constitution. Mr. Chandrasekharan for the respondent union wants to draw a distinction between what is prohibited in Arts 20 and 21 of the Indian Constitution and what the trainers of the American Constitution enjoined upon the congress and the states not to attempt to legislate. The distinction is put in this way. The Indian Constitution only prohibits a person from being convicted of an offence which was not an offence at the time it was committed. The emphasis is therefore more on the aspect that nobody shall be convicted, though legislation to that effect can be passed making offences ex post facto punishable. It is pointed out that Article 1 Section 9, Sub-section 3 of the Constitution of the United States of America which reads “no bill of attainder or ex post facto law shall be pased” completely prohibits the passing of an ex post facto law. According to the learned counsel the Indian Constitution does not put a restraint upon the passing of the law but the prohibition is against a person being convicted by an ex post facto law. It is unnecessary for us for the purposes of this case, to express any definite opinion as to whether there is in fact any real distinction between the ideas and objects sought to be inculcated in the Constitution of the United States of America and our country. In the view which we have taken that Act XII of 1949 is ultra vires, the question of ex post facto legislation does not arise. We had to consider the question of ex post facto legislation in Velayudan In re and there we have held that there is no prohibition so far as such legislation was concerned prior to the 26th January 1950, whatever might be said as regards such legislation subsequent to the inauguration of the Republic of India. Mr. Jayarama Ayyar invited our attention to the observations contained in a number of decisions on this point: see Rex v. Austin [1913] 1 K.B 551 556 and The Queen v. Griffith [1891] 2 QB. 145 148. If our view had been that Ss. 5 and 6 of Act XII of 1949 were valid, then we would have held that what the amending Act did was not to create any new offence but to cure the illegalities that existed before, and as such cannot be called retrospective legislation. The penal provision remained unchanged and that was S. 29 of the original Act and what the amending Act did was to declare that it was not competent to call in question the award on the grounds of its invalidity. It cannot be said that keeping current and valid awards, which would otherwise have been invalid, for one year from 14—6—1949 is an ex. post facto legislation which violated Art. 20 of the Constitution. If the award was valid, then it would remain in force for one year from 14—6—1950 and the non-implementation of it between those two dates is the violation of a law then in force, viz. S. 29 of Act XIV of 1947 and as such is punishable.

The further contention of the learned counsel for the petitioner is that the omission or commission which makes the non-implementation of the award an offence, was committed when the act was done or the omission was made and on the authority of London County Council v. Cross 61 L.J.M.C 160 and Bechardas v. Emperor [1930] A.I.R Bom. 340 341 these offences cannot now be made punishable. We fail to see how these authorities are of any relevancy to the facts of the present case. Both the cases dealt with circumstances of quite a different nature and it is unnecessary for us to discuss those two cases in any detail for our present purpose. For the reasons given above we are of opinion that the award on which the charge sheet was filed being without jurisdiction and its enforceability not having been properly justified by Act XII of 1949, it is open to the petitioner to contend that the magistrate has no jurisdiction to entertain the charge sheet.

But it is urged on behalf of the trade union as well as by the State that this Court should not interfere and quash the charge under its inherent powers and that S. 561-A Criminal Procedure Code is not intended for circumstances like this. It has been held by this Court in Ramanatha Chettiar v. Subrahmanya Ayyar [1924] M.W.N 556 and Re Kuppuswamy Aiyer21 and other cases that a charge sheet which the court had no jurisdiction to entertain could be quashed under Ss. 435 and 439 Criminal Procedure Code and therefore the proper remedy should be an application for revision under those sections. A Full Bench of this Court in S.P. Thiruvengadasami Naidu v. Municipal Health Officer, Karaikudi [1949] M.W.N 237 Cr. 61 F.B has considered the question as to the limits under which an accused person can question the order of the statutory body, the failure to comply with which has been the foundation of the prosecution. It is there held that if, on the face of it, the order that has created the offence is illegal, or if the statutory body made the order without jurisdiction, then the accused can question it when the prosecution is launched. We have already found that the award was made without jurisdiction and therefore it is open to the accused person to contend that the prosecution launched under it is not sustainable. Cases of this Court have held that questions regarding the jurisdiction have to be taken in the earliest stage and that is what the petitioner has done here. See the observations in Mistry, in re23 where one of us has stated that an application for quashing proceedings on the ground of want of jurisdiction ought to be moved at the earliest possible opportunity. Ss. 435 and 439 of the Criminal Procedure Code ordinarily contemplate the approach to this court at a stage when the trial court has done something in continuation of the charge. We are not satisfied that the petitioner has to wait until something is done before this court is moved.

“Consistently with the reasoning advanced above, we conclude that the filing of the chargesheet was based upon an award which itself was without any jurisdictional foundation, and therefore the learned Magistrate has no justification for proceeding with it. The proceedings are therefore quashed.

Certificate to appeal to the Supreme Court granted to the State under Art. 132 of the Constitution.

Basheer Ahmed Sayeed J.:—My learned brother has elaborately dealt with all the points that arise for consideration in this petition in his well considered judgment and as I entirely agree with him there is no necessity for me to traverse the same grounds. The only point on which I wish to make a few observations is on the main question, viz. as to how far the award, the alleged violation of which has resulted in the initiation of criminal proceedings against the petitioner, can be said to be valid and binding on the petitioner.

The learned counsel for the petitioner has relied upon several decisions of this court reported in Ramayya Pantulu v. Kutty and Rao (Engineer) Limited, Kandan Textile Limited v. Industrial Tribunal Madras, Lakshmanan Chettiar In re and The Calicut Hosieries Calicut In re in support of his contention that the order of reference is without jurisdiction and the award, consequently, is inoperative and invalid and the non-compliance thereof cannot form the subject matter of a criminal prosecution against the petitioner. The effect of these decisions has been discussed at length by my learned brother and I need not take time in considering their application to the facts of the present case. But as against these decisions the learned State Prosecutor and the learned counsel for the South India Cinema Employees Association have invited our attention to the decision of the Federal Court reported India Paper Pulp Company Limited v. India Paper Pulp Workers Union on which they placed great reliance for their contention that the order of reference made by the Government and the award passed thereon are in accordance with S. 10 (1) of the Industrial Disputes Act 1947 and therefore S. 29 of the said Act applies to the case and that the prosecution for non implementation of such an award is therefore justified. But a careful perusal of the said decision would show that, on the facts of the present case it does not lend any support to the contention of the learned State Prosecutor and the learned counsel for the trade union. In that case, the order of reference issued by the Government of West Bengal clearly sets out that there was an industrial dispute between a particular company, namely, the India Paper Pulp Co. Limited, Managing Agents Messrs Andrew Yule & Co. Limited, 8 Clive Road Calcutta and their discharged workmen whose names were mentioned in the list annexed to the reference, as represented by the India Paper Pulp Worker's Union and that it was expedient that the said dispute should be referred to the tribunal under the Industrial Disputes Act, 1947 and so forth. The order of reference is extracted at page 568 in the report referred to above. A reading of that order makes it abundantly clear that there was in existence an industrial dispute between a particular firm of employers and its discharged workmen. Apart from mentioning the name of the particular employers, the names of the discharged workman are also given in the order of reference and it is also stated therein that those discharged workmen are represented by the India Paper Pulp Workers Union. The order also conveys clearly to one's mind that the dispute that existed between the employer and the employees related to the discharge of certain workmen. It is evident therefore from the order of reference in that case that there was existing a definite dispute between a particular employer and a certain specified number of workmen of that firm. Yet while considering an order of reference of this kind their Lordships of the Federal Court were constrained to observe thus:—

“The order was far from satisfactory and it was not carefully drafted.”

Quoting Section 10 (1) of Act XIV of 1947, their Lordships have further observed as follows:—

“The section does not require that the particular dispute should be mentioned in the order. It is sufficient if the existence of a dispute and the fact that the dispute is referred to the tribunal are clear from the order. To that extent the order does not appear to be defective. Section 19 of the Act however requires a reference of the dispute to the tribunal. The court has to read the order as a whole and determine whether in effect, the order makes such a reference.”

Applying the test laid down in the above observations to the order of reference of the Madras Government now under consideration by us, it will be found that the order of reference does by no means make it clear that any industrial dispute exists between the petitioner before us and his workmen. On the other hand, it only says:—

“The Commissioner of Labour has reported that an industrial dispute has arisen between the workers and the managements of the Cinema Talkies in the Madras City, that the parties to the dispute are unable to arrive at an amicable settlement and that the dispute may be referred for adjudication.

The terms quoted above clearly do not refer to any industrial dispute having arisen between the petitioner before us and his workmen. Even the elaborate notification that has been published in the Fort St. George Gazette in pursuance of the above order does not improve matters except that paragraph 2 thereof gives the direction to the tribunal to have a preliminary enquiry to settle issues for adjudication. It is true that according to the decisions of the Federal Court, S. 10(1) of Act XIV of 1947 does not require that the particular dispute should be mentioned in the order. But that decision does lay down that it would be sufficient if the existence of a dispute and the fact that the dispute is referred to the tribunal are clear from the order. Can it be said that the order now under consideration or the notification in question is clear on the point of the dispute between the petitioner and his workmen? Analysing the order of reference of the Madras Government now under consideration it is obvious that there is no mention of the existence of any dispute between the petitioner and his workmen. It will be seen that even the name of the petitioner does not find a place in the order of reference; nor are the names of the employees of the petitioner's business mentioned in the order, as is found to be the case with the order of the Bengal Government in the case cited above. The order under consideration does not by any means make it clear that any dispute does at all exist between this particular petitioner and his workmen, nor does it make it clear as to what the nature of the dispute is that is sought to be referred to the tribunal. A mere mention in the most general terms that a dispute has arisen between the workers and the managements of the several Talkies doing business in the Madras City as a whole without any particular reference to the petitioner and his workmen cannot be said to be an order of the kind contemplated under S. 10 of the Industrial Disputes Act 1947. It is too vague and too general to be made applicable to any particular case with reference to which there must be in existence a definite dispute between an employer and his employees. The scheme of the Act seems to be intended to devise a machinery to settle disputes arisen or apprehended, and it postulates that for a settlement of such disputes, there must be two definite parties and a definite dispute must exist between them, so as to be dealt with by a tribunal. Any amount of probing into the order of reference now in question, gives us no idea whatsoever as to whether there is any dispute at all between the petitioner before us and his workmen; nor does it put the reader on notice as to what that dispute relates to. On the other hand as a matter of fact, we have been told at the Bar and it is also corroborated by the details given in the award itself that most of the workmen of this particular petitioner are paid much more than what has been recommended by the award and that their treatment is also more generous than what is contemplated under the award. See pages 74 to 76 and the appendices to the award. There is also reference in the award to the fact that the workmen had passed resolutions expressing their satisfaction with the conditions of service and the treatment accorded to them by the petitioner. As against this a reading of the order of reference that was the subject matter of the Federal Court decision India Paper Pulp Coy. v. India Paper Pulp Workers Union conveys a clear idea as to a definite dispute, its nature and existence, and the parties between whom the dispute exists. It cannot be denied that these particulars are completely absent in the order of reference and the notification that is now under consideration by us.

In this connection we were however requested to look, along with the order of reference, into the letter of the Commissioner of Labour, Madras, C. 8-7611/45 dated 13-5-1947, which is referred to in the said order of reference and which is claimed to form part and parcel of that order. We have carefully persued the said letter of the Commissioner of Labour dated 13th May 1947 addressed to the Joint Secretary to Government, Development Department Madras. We think, it may be useful to extract the said letter in its entirety for purposes of discussion. The letter reads as follows :—

“The South Indian Cinema Employees' Association submitted a memorandum on 8—11—1946 in which the workers demanded increased wages and dearness allowances, annual bonus of three months wages, increased leave facilities, Provident Fund and the adoption of proper procedure in imposing punishments. The representatives of the employers and the Employees Association met me on several occasions when the demand of the workers were discussed and finally on 28—4—1947 the following suggestions were made by me to the employers.

(i) Minimum wages of Rs. 15 for scavengers gardeners etc. Rs. 20 for watchmen and Rs. 25 for ticket collectors and door checkers etc.

(ii) grant of increments to all other class of workers (operators etc) by direct negotiations between the employers and employees in respect of each theatre.

(iii) A minimum dearness allowance of Rs. 15 for all classes of workers.

(iv) Grant of 10 days holidays with pay in a year in addition to the weekly holiday.

(v) Adoption of proper procedure in taking disciplinary action against workers (viz. framing of charges, taking of explanation in writing, and service of orders in all cases of punishments).

The Union Officials were advised to accept the above terms and to await the enactment of the Shops and Establishments Bill.

The Manager of the Minerva Talkies, Prabhat Talkies, Broadway Talkies, Kinema Centrals Saraswati Talkies and the Crown Talkies have agreed to accept the suggestions made by me. The managements of the other talkies in the city have not yet reported to me their acceptance of the terms suggested by me.

The representatives of the Union met me on 13—5—1947 and reported that the Employee Association has decided to go on strike any day after 30—5—1947 if the following demands are not conceded:

(1) Employees of all categories working in cinemas be given a new grade of salaries with a fair basis minimum as per our memorandum.

(2) Employees be given a bonus of three months' salary at the completion of each year's service.

(3) Employees be allowed to have the benefit of 15 days casual leave and 30 days privilege leave in the year,

(4) In lieu of pension, a Provident Fund be started by every establishment, the employers contributing an equivalent contribution to the fund.

(5) Employees be given one day's wage for each extra show (other than matinee shows on Saturdays and Sundays).

(6) Employees be relieved of their work on weekly and other holidays by the employer having adequate staff.

(7) Employers be forbidden to sell cinemas or theatres to any party without taking into consideration the staff maintained by them as part of the selling contract by which the purchaser may keep on the staff by compulsory obligation.

(8) The service of the employees should be confirmed immediately after three months of service.

(9) The employees be privileged to earn and enjoy the regular increment in fair graded scales of salaries and be also eligible for promotions automatically.

(10) No employee shall be dismissed or discharged from service unless a proper charge is made out by the employer and an enquiry be held thereof at which there shall be on official of the Union present.

As the employers have not accepted even the minimum terms suggested by me and as the employees are restive, I apprehend that they may strike work at any time. I therefore suggest that the above demands made by the workers may be referred to an Industrial Tribunal for adjudication. I have advised the workers to defer further action on their notice pending the orders of Government.

Sri Diwan Bahadur K.S Ramaswami Sastri, Retired District and Sessions Judge (Royapettah High Road, Madras) or Sri N. Balarama Reddi, Retired District and Sessions Judge (8/11 Conran Smith Road, Cathedral P.O) may be appointed as the sole member of the Special Industrial Tribunal to adjudiate on this dispute.”

It will be seen from a perusal of this letter of the Labour Commissioner that he sets out in the first instance that the South Indian Cinema Employee's Association submitted a memorandum to the Labour Commissioner in which the workers demanded increased wages, dearness allowance, annual bonus etc. It may be mentioned incidentally that this South India Cinema Employee's Association is said to have on its rolls only about 370 and odd members, who are workers in the 24 cinemas having business in the City of Madras and in other cinemas in the entire State of Madras. It is obvious that it does not represent the entire body of all the workers of the cinemas and it is also not claimed that it represents the majority of the workers in the cinema houses either in the city of Madras or outside the city. The Association appears to be a Provincial Association as its name indicates and the membership extends to the entire State but there are no figures made available to us about the actual number of cinemas in the entire State and the number of workmen employed. The fact, however, remains that the South Indian Cinema Employees' Association which has figured as one of the parties to the reference in question represented only 15 out of 43 workers of the cinema belonging to the petitioner before us on the date of the reference by the Government. However on the submission of the said memorandum, the commissioner would appear to have called for a meeting of the employers on several occasions, when the first demands of the workers were discussed, and finally on the 28th April 1947 as many as five suggestions were made by the Labour Commissioner to the employers, that is, to the managements of the 24 cinema houses in the city and at the same time, the union officials were said to have been advised to accept the above terms and to await the enactment of the Shops and Establishments Bill. In the next place, the letter of the commissioner definitely states that six of the managements of the cinema houses among whom the petitioner before us is also one, agreed to accept the suggestions made by the commissioner and that the other managements of the Talkies in the city had not reported to him their acceptance of the terms suggested by him. This statement of the commissioner makes it clear that the dispute, if any, which might have existed between the workmen of the petitioner's cinema and the petitioner himself had been settled by the petitioner's ready and willing acceptance of all the terms suggested by the commissioner. There was thus no further scope for the existence of any dispute, and therefore the letter of the commissioner does not proceed to set out any further dispute between the petitioner and his employees on any points. But the matter was not left there; and the labour commissioner proceeds next to mention that the representatives of the Union met the commissioner on 13th May 1947 and reported that the' Employees' Association had decided to go on strike on any day after 30th May 1947, if the ten demands mentioned by them in their report and enumerated in the commissioner's letter were not conceded. Immediately thereafter, the Labour Commissioner would appear to have come to the conclusion that very moment that as the employers had not accepted even the minimum terms suggested by him and as the employees were restive, he apprehended that the workmen might strike work at any time. By the phrase “minimum terms” in the Commissioner's letter must be meant the terms offered by the Commissioner and referred to in the earlier part of his tetter. If this were so, there is a slight inexactitude in the statement of the Commissioner, when he fails to make a distinction between the petitioner and five others who agreed to his terms and the rest of those who did not report such acceptance, immediately thereafter, i.e, on the same day, viz., 13—5—1947, and without further ado, he thought it fit that the demands made by the workers should be referred to the Industrial Tribunal for adjudication. It is however obvious that when the Commissioner stated that the employers had not accepted even the minimum, terms suggested by him, it could have reference only to those employers other than the petitioner and five other employers referred in the earlier part of the Commissioner's latter. For, the petitioner was not one of those who had not accepted the minimum terms suggested by the Commissioner for the reason that the earlier part of the order had clearly set out that the petitioner was one of the six employers who had agreed to accept, the suggestions made by the Comissioner. There is nothing in the letter of the Commissioner which would indicate that these demands made by the South India Cinema Employees' Association were referred to the respective owners of the cinema houses in the city of Madras as a body or to any of them individually. In any event, there is nothing to show that any reference of the demands of the South India Cinema Employees' Association, dated. 13th May 1947, had been made to the petitioner; nor is it contended that these demands have so much as even brought to the notice of the petitioner or, any other of the employers in the city of Madras. In the absence of any such notice of the demands to the petitioner, or the other employers, or any opportunity having been given to the petitioner, or the other employers to have their opinion expressed on the demands, or even to discuss the same with the Labour Commissioner and the Employees' Association, it is simply inconceivable to hold that there was any dispute or apprehension of a dispute between the petitioner and his employees. For a dispute to arise, the two parties viz., the petitioner and his workmen, must both come into conflict, and a difference must ensue therefrom. The letter of the Commissioner does not indicate that such was the case between the petitioner and his workmen. The letter of the Commissioner, therefore, far from supporting the case of the State Prosecutor that it discloses the existence of a dispute, proves the contrary and demonstrates beyond doubt that there could have been absolutely no difference, and no dispute whatsoever between the petitioner and his workmen represented by the Association. It will be improper to assume that a dispute can come into existence by a one sided demand or a unilateral action of one of the parties, which demand or action has neither been referred to the other party nor even communicated to that party and in respect of which there was no opportunity, nor any occasion for the other party to express any view or indicate any postive or negative reation thereto. Unless a specific dispute is postulated between a particular employer and his workmen which calls for a settlement by reference to a Tribunal it is difficult to imagine how an award of the kind now under consideration which does not relate to any dispute existing or apprehended between the particular employer and his workmen can be said to be an adjudication binding on the particular employer, however wide the scope of the reference or the award may be in its application.

Such being the case, it cannot be said that the order of reference taken as a whole and read along with the letter of the Commissioner, dated 13th May 1947, addressed to the Joint Secretary to Government indicates clearly the existence of any dispute between the petitioner and his workmen and that it was such a dispute that was being referred to the Industrial Tribunal, On the other hand, it will not be far wrong to say that the order of reference is not merely most unsatisfactory, in that it is couched in vague and general terms without making it clear as to the particular parties and the specific dispute between them, which is referred to the tribunal, but is also ill-conceived in that it does not conform to the requirements of or the spirit underlying the Industrial Disputes Act. In this view, we are constrained to hold that the facts which formed the basis of the decision of the Federal Court, in India Paper Pulp Co. Limited v. India Paper Pulp Workers' Union are clearly distinguishable from the facts that arise for consideration in the case before us. As has already been pointed out, when there was no dispute between the petitioner and his employees in existence at all, there can be no question of any reference being made and consequently there was no jurisdiction for the Government to exercise its powers under S. 10 of the Industrial Disputes Act. That there was actually no dispute in existence or apprehended as between the petitioner and his employees for being referred to any Tribunal, also receives further confirmation from the observations made in paragraph 43 of the award itself. A reading of this paragraph would go to show that the whole case of the so called existence of any dispute between the petitioner and his employees or its apprehension, is entirely given up and this justifies our view that there was no dispute and therefore no jurisdiction whatsoever for the Government to make any reference of the kind in question. The form in which issue 2 has been framed by the Industrial Tribunal also points to the same conclusion, viz., that in fact there was no dispute to be referred to a tribunal so far as this petitioner was concerned. If therefore there was no jurisdiction to make any reference, it follows that the whole reference and the award are both invalid and not binding on the petitioner. It was this apprehension of the situation and of the invalidity of the reference and the award that compelled the, Government to move the Legislature to enact an amending or validating Act, viz. Act. XII of 1949, the constitutionality of which has been considered very fully by my learned brother and I entirely agree with the reasoning and conclusions he has arrived at that the Madras amending Act, Act XII of 1949, is ultra vires the Legislature in that it offends against art. 14 and other provisions of the Constitution.

N.T.RPetition allowed