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Case Number

Misc. Judicial Case No. 322 of 1951

Attorney(S)

S.N.Bhattacharya
K.D.Chatterji
B.C.Ghosh

Judges

Jamuar
Rai, JJ.

Acts

SECTION 10 INDUSTRIAL DISPUTES ACT
SECTION 19 INDUSTRIAL DISPUTES ACT
discretion.15. Section 10(1) of the Industrial Disputes Act
provisions of Section 10(1) of the Industrial Disputes Act
Section 10(1) of the Industrial Disputes Act
Industrial Disputes Act. (XIV (14) of 1947)
Article 227 of the Constitution Act.
Trade Unions Act (XVI(16) of 1926).
INDUSTRIAL DISPUTES ACT

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Smart Summary

Structured Summary of the Opinion (Jamuar, J.)

Factual and Procedural Background

The petitioner is a registered trade union of workmen employed by Arthur Butler & Co. Ltd., Muzaffarpur. The management of Arthur Butler & Co., various company officers, the State of Bihar and labour officials are the opposite parties. The Government of Bihar (the appropriate government under the Industrial Disputes Act) referred several industrial disputes to an industrial tribunal under Section 7 read with sub‑section (1) of Section 10 of the Industrial Disputes Act; the principal dispute relevant here was about revising grades and scales of pay with retrospective effect from 4 April 1950.

Prior to the reference, the union declared a strike (20 July 1950), called it off when the reference was notified, but later resumed strike allegations after the management allegedly continued a lock‑out and did not take back eighteen workmen and imported new labourers. A new union called Arthur Butler Rashtriya Mazdoor Sangh ("the sangh") was formed by newly appointed labourers and registered by the Labour Commissioner.

The industrial tribunal delivered an award on 14 March 1951 (published 30 March 1951). On appeal, the appellate tribunal affirmed the award except in relation to the dispute about grades and scales of pay; paragraph 10 of the appellate tribunal's judgment set aside the award on basic wages and "strongly recommended" that the Bihar Government make a fresh reference on the point unless the parties settled in the meantime.

Subsequently, disputes arose between the management and the sangh. The sangh presented demands and, after conciliation proceedings conducted by the Assistant Labour Commissioner (conciliation fixed for 9 August 1951 by Memo No. 1319), the management and the sangh arrived at a memorandum of settlement (Annexure E) dated 9 August 1951. The petitioner alleges that this settlement was collusive, fraudulent, illegal, arrived at without notice to the union, and detrimental to the union's members.

On 24 July 1951 the union's General Secretary wrote to the Labour Commissioner asking that the question of grades of pay be referred to a tribunal (in line with the appellate tribunal's recommendation). The union filed the present application under Articles 226 and 227 seeking mandamus to compel the State to make a fresh reference and, alternatively, to quash or prohibit enforcement of the 9 August 1951 settlement with the sangh.

Legal Issues Presented

Whether the appellate tribunal's recommendation that the State Government make a fresh reference on the question of basic wages (grades and scales of pay) created a legally enforceable duty on the Bihar Government such that this Court can issue a writ of mandamus compelling a fresh reference under Section 10 of the Industrial Disputes Act.
Whether the memorandum of settlement dated 9 August 1951 between the management and the Arthur Butler Rashtriya Mazdoor Sangh was void, fraudulent, illegal or otherwise unenforceable — in particular, whether it was not a product of statutory conciliation under the Industrial Disputes Act or whether it was barred by an earlier written settlement dated 21 November 1948 (which, the petitioner alleges, was to remain in force for three years).

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. B.C. Ghosh)

The appellate tribunal effectively remanded the question of basic wages (grades and scales) and, having so done, the Bihar Government is bound to make a fresh reference to a tribunal; the Court should therefore issue mandamus to compel the State to constitute an industrial tribunal and refer the dispute.
Alternatively, the appellate tribunal's recommendation created a duty on the State such that mandamus lies to ensure the discretion is exercised to make the reference.
The settlement dated 9 August 1951 between management and the sangh is fraudulent and illegal, arrived at without notice to the union, and should be quashed or restrained from being enforced against the union's members.
Reliance was placed upon passages from Stephen's Commentaries and Maxwell on Interpretation of Statutes to argue that, where the public interest or individual rights call for exercise of a power, mandamus may be appropriate to require the authority to exercise that power.

Respondents' / State's Position (as reflected in the materials and the Court's account)

The appellate tribunal did not remand the issue to the tribunal (which had become functus officio) but recommended that the State make a fresh reference; the recommendation is not an order that binds the State to refer.
Section 10(1) of the Industrial Disputes Act confers a discretion on the appropriate Government to refer disputes to a tribunal; it does not impose a mandatory duty to make a reference.
The memorandum of settlement dated 9 August 1951 was the result of conciliation proceedings conducted by the Assistant Labour Commissioner (not merely acceptance of a prior settlement), as evidenced by correspondence and the notices (Memo No. 1319) fixing a conciliation sitting on 9 August 1951.
The petitioner did not produce the earlier written settlement of 21 November 1948, so it could not be shown that the 9 August 1951 settlement conflicted with or terminated an earlier settlement; nor were there sufficient materials to establish that the 9 August 1951 settlement was fraudulent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bagaram Tulpule v. State Of Bihar, 29 Pat. 491 (Full Bench)	Interpreted Section 10(1) of the Industrial Disputes Act as conferring a discretion on the appropriate Government to refer disputes; the power to refer is not a mandatory duty.	The Court relied on this authority to support the conclusion that the State's decision whether to make a fresh reference under Section 10 is discretionary and that mandamus cannot compel the State to make such a reference.

Court's Reasoning and Analysis

The Court proceeded in two parts corresponding to the petitioner's two principal contentions.

1. On the question of mandamus to compel a fresh reference:

The Court examined paragraph 10 of the appellate tribunal's judgment, which set aside the tribunal's award on basic wages because evidence on record was unhelpful and "strongly recommend[ed]" a fresh reference by the Bihar Government unless the parties settled in the meantime.
The Court observed that the tribunal which gave the original award had become functus officio and could not be the recipient of a remand; the appellate tribunal recognised this legal difficulty and therefore adopted the course of making a recommendation to the Bihar Government.
The Court quoted and analysed Section 10(1) of the Industrial Disputes Act, which provides that the appropriate Government "may" refer disputes to a Tribunal for adjudication (and sets out other options); the language is discretionary ("may") rather than mandatory.
The Court held that the recommendation of the appellate tribunal did not convert the State's discretion under Section 10 into a duty enforceable by mandamus. It applied the principle from Bagaram Tulpule that Section 10(1) is discretionary.
The Court considered authorities and textbook passages cited by the petitioner (Stephen's Commentaries and Maxwell on Interpretation of Statutes) regarding mandamus and compulsion to exercise discretion, but rejected their application here because the statute itself conferred only a discretion and did not create a positive or absolute duty to refer.
The Court further noted that circumstances may have changed between the tribunal's award and the appellate tribunal's order, which could influence the State's decision whether a fresh reference is necessary.
On these bases the Court concluded that no case was made out for issuing writs compelling the State to make a fresh reference under Section 10.

2. On the challenge to the 9 August 1951 memorandum of settlement:

The petitioner argued that the settlement was not the product of conciliation under the Industrial Disputes Act and was also barred by a prior written settlement dated 21 November 1948 (which allegedly ran for three years until 20 November 1951).
The Court examined the documentary material and found notices and correspondence (including Memo No. 1319 dated 4 August 1951) calling the parties to conciliation at the Assistant Labour Commissioner's office on 9 August 1951. The memorandum of settlement itself records that "a conciliation proceeding was held by the Assistant Labour Commissioner on 9‑8‑51." The Court therefore found the settlement to be the result of conciliation proceedings within the meaning of the Industrial Disputes Act.
As to the contention that the 9 August 1951 settlement was barred by the earlier 21 November 1948 settlement, the Court observed that the petitioner had not produced the 1948 settlement and, accordingly, the Court could not conclude that any specific matter settled on 9 August 1951 was within the scope of the earlier settlement.
On the allegation of fraud or collusion, the Court found that the petitioner had not placed sufficient materials on record to justify quashing the settlement as fraudulent.
Consequently, the Court refused to quash the 9 August 1951 settlement or to prohibit its enforcement on the basis of the materials before it.

Holding and Implications

APPLICATION DISMISSED

Holding (core ruling): The petition under Articles 226 and 227 is dismissed. The Court held that (a) the appellate tribunal's recommendation did not impose a legal duty on the Bihar Government to make a fresh reference under Section 10 of the Industrial Disputes Act, because that provision confers a discretion on the appropriate Government; and (b) the memorandum of settlement dated 9 August 1951 was the product of conciliation proceedings and, on the material before the Court, could not be set aside as barred by the 21 November 1948 settlement or shown to be fraudulent.

Immediate consequences for the parties: No writ of mandamus was issued to compel the State of Bihar to constitute a new industrial tribunal or to refer the dispute on grades and scales of pay; the 9 August 1951 settlement stands on the record and is not quashed. The application is dismissed and, in the circumstances, each party was directed to bear its own costs.

Broader implications: The Court reiterated that the decision to refer disputes under Section 10(1) is discretionary for the appropriate Government and not ordinarily subject to mandamus to compel a particular exercise of that discretion. The opinion did not purport to lay down a novel binding precedent beyond the application of those principles to the facts before it.

Judge Jamuar delivered the opinion; Rai, J. agreed. Application dismissed.

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Arthur Butler Worker'S Union v. The Management Of The Arthur Butler And Co. (Muzaffarpur), Ltd. And Others Opposite Party.

Jamuar, J.:— This is an application under Articles 226 and 227 of the Constitution of India for the issue of a writ in the nature of mandamus or any other appropriate writ and a direction upon the opposite party in the following circumstances.

2. The petitioner is a union of workmen under the employment of Arthur Butler & Co. Ltd., Muzaffarpur. The union has been registered as a trade union under the Trade Unions Act (XVI(16) of 1926). The opposite party are the management of the Arthur Butler & Co., the company's manager, the Company's Secretary, the State of Bihar, the Secretary to the Government of Bihar in the Labour Department, and the Assistant Labour Commissioner, Muzaffarpur. The said union has been recognised both by the management of the Arthur Butler and Co., as also by the Government of Bihar which is the appropriate Government under the Industrial Disputes Act. (XIV (14) of 1947) for regulating industrial disputes in such industries. There having arisen industrial disputes between the management of the Arthur Butler & Co., and their workmen represented by the said union regarding certain matters connected with employment, etc., the Government of Bihar in the Labour Department, under notification No. D10-6/50.L-5012, dated the 24th July, 1950, referred the disputes in exercise of the powers conferred upon it by Section 7 read with sub-section (1) of Section 10 of the Industrial Disputes Act (XIV(14) of 1947), to an industrial tribunal constituted by it for adjudication. The disputes referred to the tribunal were several in number, and it is only necessary to state the first one namely, “the grades and scales of pay of the employees should be suitably revised, retrospective effect should be given to the same from the 4th April, 1950.” (The grades suggested by the union had been submitted in its letter No. 13/50-51, dated the 1st July, 1950).

3. It appears that prior to this reference, that is, with effect from the 20th July, 1950, the union had declared a strike by the workmen. When, however, the contents of the above notification were communicated to the union, it called off the strike. It is, however, alleged that, in spite of this, the management of the Arthur Butler and Co. (hereinafter called “the management”) continued a lock-out in contravention of the provisions of law, as eighteen of the workmen were not taken in by the management. The strike was, therefore resumed by the union. It is further alleged that the management imported new labourers in place of the workmen not taken in. In the first week of August 1950, according to the petitioner's case, a new union, consisting of the newly appointed labourers and called the Arthur Butler Rashtriya Mazdoor Sangh (hereinafter called “the sangh”), was formed, and it is alleged that this was under the patronage, and at the instance, of the management. This ‘sangh’ was duly registered by the Labour Commissioner, Bihar who was also the Registrar of trade unions and Secretary to the Government of Bihar in the Labour Department.

4. On the 14th March, 1951, the tribunal, to which the industrial disputes, as stated above, had been referred for adjudication, gave its award which was published in the Bihar Gazette (Extraordinary), dated March 30th 1951. An appeal was then taken from this award to the appellate tribunal which, on the 19th June, 1951, affirmed the award excepting in one particular namely, the dispute quoted in the earlier part of this judgment relating to the grades and scales of pay of the employees.

5. Since Mr. B.C Ghosh, the learned Advocate for the petitioner, has made a point, which he has strenuously argued, arising out of the concluding portion of the judgment of the appellate tribunal, I propose to set out that part of the judgment in full, that is, paragraph 10, which runs as follows:

“In this state of the evidence one of three courses seems to us to be open, namely:

1. to remand the case for further investigation of the question, opportunity being given to both the parties to lead fresh evidence;

2. to take additional evidence ourselves; or

3. to make a recommendation to the Bihar Government for fresh reference on the question.

6. In substance there would be no material difference if any one of those rourses be adopted, for practically there would be a de novo trial. There is however, a practical difficulty in the first course, for the Tribunal which gave the award under appeal has now become functus officio. The second course would be inconvenient to both the Parties and would involve them in additional expenses, if the additional evidence is to be taken here. These could be avoided only if we were to go to some convenient place in Bihar, but that is not possible at present and delay is not-desirable. The third course, therefore, seems to us to be the best. There cannot be any question of the parties losing the benefit of the evidence already on the record, for, as we have already pointed out, that evidence is not helpful to them. We, therefore, set aside the award relating to basic wages in all its aspects, but at the same time feeling the necessity for the review of the scale of basic wages as fixed by Sri C.B Prasad, we strongly recommend to the Bihar Government to make a reference on the point, unless the parties arrive at settlement in the meantime.”

7. It appears that there also arose industrial disputes between the management and the ‘sangh.’ The ‘sangh’ presented a list of demands to the manager, of Messrs Arthur Butler and Co., Ltd. As no settlement was possible between them, the matter was referred to the Assistant Labour Commissioner, Muzaffarpur, for conciliation. The Assistant Labour Commissioner held a conciliation proceeding on the 9th August, 1951, when an agreement was arrived at between the management and the ‘sangh.’ A copy of this agreement has been filed along with the petition as Annexure E. It is the case of the petitioner, that is, the union, that this was a collusive agreement between the management and the ‘sangh’, and, as such, is fraudulent and illegal, and is to the detriment of the workmen of the union and against their interest. It was also alleged that this agreement had been arrived at ‘without notice or information to the union which was not represented at the time.

8. On the 24th July, 1951, the General Secretary of the union addressed a letter to the Labour Commissioner, Bihar, in which the Labour Commissioner was asked to refer the question of grades of pay to a tribunal for adjudication, as recommended by the appellate tribunal, and it is stated that a copy of that letter was sent to the management on the same date.

9. Mr. B.C Ghosh has contended, in the first place that the appellate tribunal having set aside the award relating to the question of basic wages, and having made a recommendation to the Bihar Government to make a reference on the point, the Bihar Government was bound to follow that recommendation, and that, since it has failed to do so in spite of the letter addressed to the Labour Commissioner on the 24th July, 1951, by the General Secretary of the Union, this Court should issue a writ in the nature of mandamus upon the State of Bihar for constituting an industrial tribunal and referring that particular dispute to that tribunal for adjudication.

10. Mr. B.C Ghosh contended, in the second place that the agreement arrived at between the management and the ‘sangh’ on the 9th August, 1951, being fraudulent and illegal, is not binding upon the, members of the union which represents the majority of the workers of the Arthur Butler & Co. The prayer in the petition, therefore, is to quash the settlement arrived at on the 9th August, 1951, as also for the issue of a writ and a direction prohibiting the opposite party from enforcing the said agreement on the workers or, at least, on such of them as are not members of the ‘sangh’.

11. Dealing with his first contention, Mr. Ghosh contended that what the appellate tribunal in fact did was to remand that part of the award of the tribunal which dealt with the grades and scales of pay of the employees, and that, therefore, this order of remand should be given effect to. Clearly, this contention cannot prevail. The order of the appellate tribunal can in no way amount to an order of remand. The tribunal, after giving its award, became functus officio and there was no tribunal existing to which the appellate tribunal could remand any issue; indeed, the appellate tribunal itself recognised that difficulty, and stated in so many words that it could pass no order of remand. In the circumstances, the appellate tribunal adopted the third and the last alternative which suggested to itself, namely, to make a recommendation to the Bihar Government for a fresh reference on that point. When Mr. Ghosh saw the force of the reply to that part of his argument, he proceeded to contend that, after the recommendation made by the appellate tribunal, the State Government had no option left but to constitute a fresh tribunal to give its award in respect of the dispute regarding the grades and scales of pay of the employees.

12. Now, the only provision in the Industrial Disputes Act (XIV (14) of 1947) which deals with reference of disputes to tribunals is Section 10, and it is necessary to quote that section so far as is relevant to the present question in issue:

“Reference of disputes to Boards, Courts or Tribunals:— (1) 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 inquiry; or

Provided that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.”

13. Clearly, the matter of reference for adjudication of any industrial dispute is one which is discretionary with the State Government; If the State Government does not choose to make any such reference, this Court can issue no writ unon it so to do. This has been held by a Full Bench of this Court in the case of ‘Bagaram Tulpule v. State Of Bihar*’, 29 Pat. 491 (F.B). Mr. Ghosh, however, sought to distinguish that case in two ways. He said that case turned on the interpretation not so much of Section 10(1) of the Industrial Disputes Act but of the proviso (quoted above) to that section. It is true that it was the proviso which called for attention in that case; but the interpretation of Section 10(1) was also involved, and it was pointed out that this section is “clearly purely discretionary”.

14. Mr. Ghosh then attempted to distinguish that case by arguing that in the present case before us the State Government did make a reference to an industrial tribunal for adjudication of that dispute, and the tribunal gave its award; but that part of the award was set aside by the appellate tribunal. That being so that particular dispute cannot be said to have received adjudication, and, therefore, it is no longer discretionary upon the State Government to choose not to make any further reference. The State Government having once decided to make that reference, the reference must again be made by it to another industrial tribunal, the former tribunal being functus officio, and the State Government has no more discretion in this matter. In my opinion, even then the reference can be made only under Section 10 of the Industrial Disputes Act, there being no other provision in the Act for making such a reference. Mr. Ghosh conceded that his (sic) was an argument of first impression, and that he could not find any authority in support of it. He, however, drew our attention to a passage from Stephen's Commentaries on the Laws of England, 21st Edition, Volume III, Book II, page 575, which reads as follows:—

“We must now deal briefly with the limitations upon the use of the order (mandamus). In the first place, as we have already indicated and in conformity with the principles laid down in Chapter II (ante, pp. 273 et seq.) mandamus will not be available to compel an authority to exercise a discretion unless it is under a duty to exercise it even so the authority is only commanded to face up to its duty and the order will leave the authority as free as before to decide for itself without any interfering direction from the Court. Even if, by the omission of one of the requirements of natural justice, the authority has failed in the eye of law to exercise a discretion, the mandamus will only command the authority to exercise it fairly and properly, and the same will be true if it has exercised its discretion mala fide or for purpose other than that for which it was entrusted with the discretion.”

15. Section 10(1) of the Industrial Disputes Act gives power to the appropriate Government to refer any industrial dispute to a tribunal for adjudication; it does not impose any duty to do so; in other words, the statute confers a discretion rather than an obligation. In my opinion, the passage cited by Mr. Ghosh does not help him in his contention. The provisions of Section 10 of the Industrial Disputes Act clearly show that making a reference is purely within the discretion of the State Government. And this Court cannot give a direction to it to exercise that discretion in any particular manner.

16. Mr. Ghosh also referred to the following passages from Maxwell on Interpretation of Statutes, 9th Edition, page 215:

“The Supreme Court of the United States similarly laid it down that which public officers are empowered to do for a third person the law requires, shall be done whenever the public interest or individual rights call for the exercise of the power, since the latter is given, not for their benefit, but for his, and is placed with the depository to meet the demands of right and to prevent the failure of justice. In all such cases, the Court observed, the intent of the legislature, which is the test, is not to grant a mere discretion but to impose a positive and absolute duty.”

17. I have already expressed my opinion that the provisions of Section 10(1) of the Industrial Disputes Act show that the appropriate Government shall have a mere discretion, and no positive or absolute duty has been imposed upon it to make references. Although, in the first instance, the State Government had referred a certain dispute to a tribunal for adjudication, and, after the award of the tribunal on appeal to the appellate tribunal, the latter set aside that award it may well be that, in the time that elapsed between the date of the, award given by the tribunal and the date of the order of the appellate tribunal or even thereafter, new set of circumstances came into existence by reason of which the State Government may not consider that any further step need be taken for getting an award by another tribunal on that particular dispute. For all these reasons, in my opinion, no case has been made out for the issue of a writ in the nature of mandamus or any other writ upon the State of Bihar.

18. Coming to the second contention put forward by Mr. Ghosh, he suggested that the agreement arrived at on the 9th August, 1951, was not as a result of any conciliation proceeding within the meaning of the Industrial Disputes Act, but that it was a result of a mere reference to the Assistant Labour Commissioner, Muzaffarpur, who accepted some settlement already agreed upon by the parties. This argument is not borne out from the materials produced before us. It appears that, on 23rd July, 1951, the ‘sangh’ addressed a letter to the manager, Arthur Butler & Co., Muzaffarpur, drawing attention to a resolution passed by the working committee of the ‘sangh’ and forwarding a list of the demands of the workers for consideration and necessary orders within a fortnight, and further asking the manager to accept those demands. It then appears that the management did not accept those demands.

19. The matter was then referred to the Assistant Labour Commissioner. Muzaffarpur, for conciliation and he on the 4th August, 1951, sent notices by Memo No. 1319 of that date to the manager, Arthur Butler & Co., Ltd. Muzaffarpur, and to the Secretary, Arthur Butler Rashtriya Mazdoor Sangh, Muzaffarpur, on the subject “conciliation proceeding.” These notices informed the parties that he had fixed the 9th August, 1951, at 10-30 a.m for a conciliation proceeding at his office at Muzaffarpur. This correspondence clearly shows, that the agreement was the outcome of a conciliation proceeding.

20. Mr. Ghosh suggested that it was untrue to say that, on the 23rd July, 1951, the ‘sangh’ had addressed a letter to the manager, Arthur Butler & Co., Muzaffarpur to the effect stated above, and he suggested that it was on the 31st of July 1951, that the ‘sangh’ had presented its list of demands. In the first place, I do not think that the date matters, and in the second place there is no reason to disbelieve the annexures filed along with an affidavit on behalf of the management showing that it was on the 23rd July, 1951 that the ‘sangh’ had addressed its demands to the management.

21. In the circumstances, I am clearly of the opinion that the Memorandum of settlement, that is, the agreement arrived at on the 9th April, 1951, between the ‘sangh’ and the management, was the result of a conciliation proceeding within the meaning of the Industrial Disputes Act, and was not a result of only a reference to the Assistant Labour Commissioner who merely accepted a settlement already agreed upon between the parties. Indeed, even the Memorandum of settlement (Annexure E) shows that “no settlement being mutually possible, the matter was referred to the Assistant Labour Commissioner, Muzaffarpur, for conciliation”, and that “a conciliation proceeding was held by the Assistant Labour Commissioner on 9-8-51.”

22. Mr. Ghosh then argued that this Court should quash the settlement of the 9th August, 1951, and issue a writ and a direction prohibiting the opposite party from enforcing that agreement on the ground that it is against the provisions of Section 19 of the Industrial Disputes Act. He pointed out that it will appear from the award made by the tribunal that once before, that is, on the 21st November, 1948, there had been a settlement between the parties which had been reduced to writing, and that the parties had agreed that the settlement would remain in force for a period of three years commencing from the 21st November, 1948, and hence it is not open to either of them to terminate it before the 20th November, 1951. It is true that under the provisions of sub-section (2) of Section 19 of the Industrial Disputes Act, a settlement arrived at in the course of a conciliation proceeding shall be binding for such period as may be agreed upon by the parties. But Mr. Ghosh has not produced before us a copy of the settlement arrived at on the 21st November, 1948. We are, therefore, unable to say that any of the disputes which were settled on the 9th August, 1951, was a subject-matter of the settlement on the 21st November, 1948, also. Mr. Ghosh then conceded that, in the absence of the settlement of the 21st November, 1948, he could not press this point any further. Mr. Ghosh also submitted that we should quash the settlement of the 9th August, 1951, as being fraudulent. But it was pointed out to him that sufficient materials had not been produced before us to enable us to do so. Here, again, Mr. Ghosh conceded that the materials on the record are not sufficient to enable us to hold that the said settlement with the ‘sangh’ was fraudulent.

23. In the result, the petitioner has failed to make out a case for the exercise of our power either under Article 226 or under Article 227 of the Constitution Act. The application fails, and is dismissed but, in the circumstances of the case, each party will bear its own cost.

24. Rai, J.:— I agree.

A/V.R.B

25. Application dismissed.

Arthur Butler Worker... v. The Management Of Th...