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This is an appln. on behalf of the Firm of M.M. Nagalinga Nadar Sons, Qailon (herein after referred to as the petnrs) through one of their patnrs. under Article 226 of the Constitution, asking this Ct. to call up the records in Industrial Dispute No. 8 Of 1950 on the file of the Industrial Tribunal, Alleppey & to grant the following reliefs: (a) To grant a declaration that there is or can be. no ''Industrial dispute" within the meaning of the Industrial Disputes Act, central or local, as between the petnr. & his coolies & to restrain Travancore-Cochin State (Resp. 3) by injunction from any interference in their mutual relationship under & by virtue of the Industrial Disputes Act; (b). To issue a writ in the nature of certiorari & prohibition quashing the proceedings of the said Tribunal (Resp. 2); (C ) To issue a writ in the nature of mandamus allowing the representation of the petnr. in the proceedings before the Tribunal through its legal advisor; and to give such further or other directions as the circumstances of the case require
The Ambalapuzha Taluq Head Load Conveyance Workers'' Union, Alleppey is Resp. 1 to this appln. & the above reliefs are claimed as against all the three reaps.
The petnrs. are doing business in the purchase & sale of cocoanut oil with their head office at Quilon & branches at Alleppey & other places. Purchases are made at Alleppey while the sales take place elsewhere. Members of Resp. 1''s Union are engaged as manual labourers in taking delivery & in giving delivery of oil. Differences, however, arose between the parties concerning a reduction made by the petnrs of the existing rates of wages for different items of work the labour had to attend to & with respect to a claim for bonus put forward by the latter. Negotiations for settlement proved unsuccessful & Resp. 1 Union made a representation to the Asst. Labour Comr. Alleppey for conciliation of the dispute. The latter''s efforts for conciliation also failed. He therefore, reported to Govt, for referring the dispute to an Industrial Tribunal for adjudication. In exercise of the powers vested in them u/s 10, Industrial Disputes Act, the Govt, referred the matter to Resp. 2 Tribunal at Alleppy by their order dated 31-7-1950 & the said order was notified in the Gazette of even date, Resp. 2 taking cognizance of the dispute issued notice to the parties & pursuant to the notice served on the petnrs, they raised a preliminary objection through an advocate that the reference was ultra vires the Govt, inasmuch as their trade or business did not amount to an "industry " within the meaning of the Industrial Disputes Act & the persons employed in their trade for manual labour were not "workmen" within the meaning of the said Act. According to the petnrs. there was therefore no "industrial dispute" which could be made the subject of a reference to a Tribunal constituted under the Industrial Disputes Act & the reference did not confer jurisdiction on Resp. 2 Tribunal to pass an award with reference to the controversies between the parties before it. Resp. 1 raised an objection that the Industrial Disputes Act, 1947 (Central Act XIV [14] of 1947), under which Govt, made the reference did not entitle a party to a proceeding before a Tribunal being represented by a legal practitioner except with the consent of the other parties to the proceeding & with the leave of the Tribunal. These objections gave rise to two orders by the Tribunal, one on 5-9-1950 upholding Resp. 1''s objection that no advocate can be permitted to appear except on the terms mentioned above & the other, dated 20-9-1950 overruling the preliminary object on raised by the petnrs. The Tribunal held that the dispute fell within the purview of the Industrial Disputes Act. & that the Tribunal was competent to adjudicate upon it. The latter order was soon followed by the present petn. asking for the reliefs set forth in the opening para, of this order. An interim stay of the proceeding before the Tribunal was asked for & granted. That stay has since been made to operate till the disposal of this petn.
The claim for relief (a) involves a challenge to Govt''s, authority to make the reference & to the correctness of the Tribunal''s order overruling the petnr''s. preliminary objection & relief (c) relates to the order prohibiting representation of the petnrs. before the Tribunal through an advocate. The prayer covered by relief (b) raises several interesting questions & in claiming that relief the petnrs. even question Govt''s power to make the reference under the Central Act. Alternatively it was urged that the reference was to a Tribunal which had long before ceased to exist.
At the hearing before me Mr. N. Varadaraja Iyengar, the learned Counsel for the petnrs. Formulated as many as five propositions for consideration by the Ct. To understand how the more important among them arise here & for a proper appreciation of the arguments concerning them it is first necessary to refer to the history of the legislation regarding industrial disputes in the State & to the Constitution of the 2nd Resp. Tribunal. The case comes from the Travaucore area & no reference need therefore be made to what the law in the Cochin area was before the formation of the Travancore-Cochin State.
The Travancore Industrial Disputes Act, VI [6] of 1124, was the law in force in the State of Travancore when the two States were integrated The Travancore Cochin Industrial Disputes Ordinance 1950 (Ordinance No. v. [51 of 1950) promulgated by His Highness-The Raj Pramukh on 11-2-1950 repealed the said Act as also the Cochin Legislations on the subject. The said Ordinance is practically a verbatim reproduction of the (Indian) Industrial Disputes Act, XIV [14] of 1947. In turn the Ordinance gave place to the Travancore-Cochin Industrial Disputes Act, xvI [16] of 1950 which was enacted by the Travancore-Cochin Legislature on 16-4-1950. Like the Ordinance which it replaced that Act also is practically in the same terms as Central Act XIV [14] of 1947. Section 36, Travancore-Cochin Act relating to "Recovery of money due from an employer under settlement, awards, etc.," & Section 41 dealing with "Repeal & saving" would seem to be the only innovations or additions upon the Central Act. The next piece of legislation to be referred to is one enacted by the Indian Parliament amending & extending the scope of the Industrial Disputes Act, XIV [14] of 1947. By the schedule appended to the Industrial Disputes (Appellate Tribunal) Act. I950 (Act XLVIII [48] of 1950) the Indian Parliament inter alia extended the operation of Central Act XIV [14] of 1947 to the whole of India except the State of Jammu & Kashmir. This was on 20-5-1950 & the Travancore Cochin Govt, duly published the new Act (Act XLVIII [48] of I960) in their Gazette bearing the date 31-7-1950. This brings the legislative history up to date.
To turn to the Constitution of the Tribunal, the Industrial Tribunal, Alleppey was constituted on 4-3-1950, (vide Travancore Cochin Gazette, dated 13-3-1950 part I p. 205), when Ordinance v. [5] of 1950 was in force. Section 41 (2), Travancore Cochin Industrial Disputes Act XVI [16] of 1950 expressly enacted that
Notwithstanding the expiry of the Travancore Cochin Industrial Disputes Ordinance, 1950 (V [5] of 1950) alt orders made, action taken, arbitration, conciliation of adjudication proceedings or other legal proceeding commenced or things done in the exercise of any power'' conferred by or under the said Ordinance shall, for all purposes, be deemed to have been made, taken, commenced or done in the exercise of the power conferred by or under this Act; and any arbitration, conciliation or adjudication proceedings or other legal proceeding pending immediately prior to the commencement of this Act may be continued or enforced as if this Act had commenced on 11-2-1950.
The Tribunal hence became competent to function as such so long as the Travancore Cochin Industrial Disputes Act, XVI [16] of 1950 continued to govern industrial disputes in the State or until its appointment was otherwise terminated.
I shall now proceed to set out the propositions the patnrs. learned Counsel propounded as arising for the Ct''s. decision. The first proposition was that notwithstanding the extended application given to Central Act XIV [14] of 1947 to the States in Part B of Sch, 1 of the Constitution the Travancore-Cochin Industrial Disputes Act, XVI [16] of 1950 continues to be the law governing industrial disputes in the State except to the extent rendered void by Article 254 of the Constitution by reason of inconsistency & that the Travancore. Cochin Govt, was, therefore, incompetent to make a reference u/s 10 of the Central Act. According to Mr. Varadaraja Iyengar the supercession of the State by the Central law is only to the limited extent of the conflict & not of the whole Act. The point of the argument was that the reference which Govt, made in the instant case to the 2nd Resp. Tribunal u/s 10 of the Central Act was unauthorised & that it did not constitute a valid reference. An alternative proposition propounded was that in case the Central Act be held to be the governing law, the authority of the 2nd Resp. Tribunal to act as an Industrial Tribunal had ceased to exist when the Indian Parliament extended the operation of Act XIV [14] of 1947 to part B States as well & that the reference was, therefore, to a non-existing Tribunal. It was pointed out that the Tribunal contemplated by the Central Act meant an Industrial Tribunal constituted under that Act. Vide Section 2 (r). The argument was that in the absence of an express transitory provision like that contained in Section 41(2), Travancore. Cochin Industrial Disputes Act, XVI [16] of 1950 the 2nd Resp. Tribunal cannot function as an Industrial Tribunal without fresh appointment.
Besides these two propositions as mentioned earlier, Mr. Varadaraja Iyengar submitted for the Ct''s. decision three others as well. It is convenient to refer to them here before commencing the discussion on the propositions already set out. The third among Mr. Varadaraja Iyengar''s propositions was that there was no "industrial dispute" within the meaning of the Industrial Disputes Act & the reference made by Govt, was, therefore, ultra vires their powers. According to the petnrs. such a reference could give no jurisdiction to the Tribunal to hold an enquiry or to pass any award. The fourth proposition was that assuming Govt, have the authority, the present reference is invalid ''as Govt, made it without giving a hearing to the petnrs. According to their learned Counsel the order of reference made in disregard of the rules of natural justice must be treated as void & the Ct. should not allow the 2nd Resp. Tribunal to proceed with the enquiry initiated on the strength of such an order. The fifth & the last proposition was that the Tribunal''s order disallowing representation to the petnrs. by a legal practitioner was opposed to the fundmental rights guaranteed by the Constitution under Articles 14 & 19 (1) (g) thereof.
The learned Advocate-General who represented before me Resps. 2 & 3 raised a preliminary objection that as the Industrial Disputes (Appellate Tribunal) Act, 1950, gave a right of appeal before the Appellate Tribunal for a party aggrieved by any award or decision of an Industrial Tribunal the present petn. was incompetent. The question whether the orders passed by the 2nd Resp. Tribunal in disposing of the objections raised by the parties are appealable u/s 7, Industrial Disputes (Appellate Tribunal) Act, 1950, is a point which is certainly worth considering, particularly in view of the very wide definition we have in Section 2 (b), Industrial Disputes Act, 1947, for the expression " award". But a decision regarding it in favour of the Advocate General''s contention would not enable me to dismiss this petn. since a decision in favour of the petnrs. on propositions 1, 2 or 4 above would entitle them to the relief they ask for in the petn. to have the proceeding before the 2nd Resp. Tribunal quashed. I shall, therefore, now proceed to consider the propositions submitted for my decision by the pstnrs''. learned Counsel on their merits, postponing for the moment an expression of my views on the preliminary objection raised by the Advocate General.
The first question to be considered is which Act governs Industrial Disputes in the State; whether Central Act XIV [14] of 1947 as amended by Act XLVIII [48] of 1950 or the Travancore-Cochin Industrial Disputes Act, XVI [16] of 1950. The answer to it must be found on the true construction of Article 254 of the Constitution. The matter of " industrial & labour disputes " occurs in List 3-concurrent List C in Sch. 7 of the Constitution. Vide Entry 22 in the Concurrent List. Article 254 so far as it is relevant for our purpose is in these terms:
If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be the existing law, shall prevail & the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
While the learned Advocate General contended that the Central Act replaced or kept in abeyance the State law, Mr. Varadaraja Iyengar''s argument was that in the absence of positive repugnancy between the provisions of the Central & the State laws no question of predominance of the Central over the State law would arise & even when there is such repugnance the State law has to yield only pro tanto, to the extent of the repugnancy. According to the latter for the State law to be replaced entirely it is not sufficient to establish that the Central law covers the same field as traversed by the State law; but the learned Advocate General would have it that when the Central law covers the same field as that covered by the Slate law, the State law would remain as dead letter be long as Central law remains in force. Article 251 of the Constitution was referred to in this context. The controversy pertains to a branch of law on which much legal learning has been spent & the best & the most convenient way to answer the point is by referring to decided cases. The question had arisen in at least two of the Indian H. Cts. when the Govt. of India Act, 1935, was in force. Article 254 (l) of the Constitution is in substance in terms of Section 107(1) of the said Act & it would be helpful to reproduce the same here:
If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law shall prevail & the Provincial law shall, to the extent of the repugnancy, be void.
Before, proceeding to refer to the case law bearing on the subject it must here be stated that at the Bar it was agreed that the two Acts-the Central & the State-cover the same field & that repugnancy is only with respect to the provisions regarding representation of parties in a proceeding before authorities constituted under the Act. As State Act was, as mentioned earlier, practically a verbatim reproduction of the Central Act the provisions regarding representation also remained the same in both before the Central Act, XIV of [14] 1947 was amended by Act XLVIII [48] 1950. The difference between the two Acts as they stand now arose on account of the amending legislation. For the present it is sufficient to notice that there is now repugnancy between the provisions of the two Acts regarding the right of representation, in proceeding under the Act. Of the several points of differences on this matter that regarding representation by a legal practitioner is particularly relevant for another branch of the case & that difference Will be noticed when that matter is discussed. Earlier I pointed out Sections 36 & 41, Travancore Cochin Industrial Disputes Act XVI [16] of 1950 have no counterpart for them in them in the Central Act.
The first case that I would refer to on this branch of the case is a decision by Narasinga Rau J. as he then was, (R.C. Mitter J. concurring) reported in G.P. Stewart Vs. Brojendra Kishore Roy Chaudhury, There the question arose as to whether certain provisions of the Bengal Ct. of Wards Act, 1879, as amended by the Assam Ct. of Wards Amendment Act (1937) were repugnant to the "existing Indian law" falling in Concurrent Legislative List & hence void. It is not necessary to enter into the further details of that case but what the learned Judge has said on the abstract question of law may usefully be quoted here as an authoritative exposition of the law I have to deal with here. In discussing the meaning of "repugnancy" the learned Judge-states at p. 633 of the report as follows:
The question of repugnancy or inconsistency has arisen & been considered in several Australian cases, with reference to Section 109, Commonwealth of Australia Constitution Act which provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail & the former shall to the extent of the inconsistency be invalid. (A summary of the cases will be found in Wynes''s Legislative & Executive Powers in Australia; and in Street on ultra vires). In the earlier cases e.g. Federated Sato Mills & Co. Employees v. Moore 8 C. L. R. 465 ; Australian Boot Trade Employees v. Why brow 10 C.L.R. 266 ; Federated Engine Drivers & Co. of Australia v. Adelaide Chemical & Fertiliser Co. 28 C.L.R. 1, the test of inconsistency adopted was whether it was possible to obey both the competing laws. But in the case in Clyde Engineering Co. v. Covibum 1926 37 C. L. B. 466, where the conflict was between an award of the Conciliation Ct. providing for a working week of 48 hours & a New South Wales Act providing for payment of overtime for any work in excess of 44 hours, it was recognised that the test was too narrow. Isaacs J. observed that two statutes imposing respectively twenty & twenty-five lashes for robbery might in a sense be both obeyed by infliction of forty-five lashes & he therefore propounded a more satisfactory test thus:
If however a competent Legislature expressly or impliedly evidences Its intention to cover the whole field, that is a conclusive test of inconsistency where another Legislature assumes to enter to any extent upon the same field: (p. 490 loc cit.)
It is unnecessary to mention all the subsequent Australian oases where this test was adopted; we content ourselves with citing only Ex parte MaLean, (1930) 43 C. L. R. 472, where Dixon J. observed that inconsistency depends on the intention of the paramount Legislature to express by its enactment completely exhaustively, or exclusively what shall be the law governing the particular conduct of the matter to which its intention is directed. When a Federal Statute discloses such an intention it is inconsistent with it for the law of a State to govern the same conduit or matter.
In Canada, of course, apart from a few exceptional provisions, such as those relating to agriculture & immigration, the Constitution Act itself does not confer any concurrent powers of legislation. There are only two legislative lists, but it has been settled by a long line of P, C, decisions that ''there can be a domain in which provincial & dominion legislation may overlap, in which case neither legislation will be ultra vires, if the field is clear, but that if the field is not clear, & in such a domain the two legislations meet, then the dominion legislation must prevail Grand Trunk Rly. of Canada v. Attorney General of Canada 1907 A. C.C. 65 : 76 L. J. P. C. 23.
Is the field completely occupied by the dominant Legislature? In England, the question of repugnancy has been considered chiefly in relation to bye-laws & the general law of the land, a bye-law being treated as ultra vires if it is repugnant to the general law.
The learned Judge then proceeds to refer to English decisions dealing with the question & at p. 634 concludes the discussion as follows:
The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Isaacs J. in the Australian 44 Hour Case (Clyde Engineering Co. v. Cowburn 37 C.L.R. 466) If the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant & therefore inoperative. Whether & to'' what extent in a given case, the dominant Saw evinces such an intention must necessarily depend on the language of the particular law.
This case was followed by a D. B. of the Lahore H. C. in Ahamed Khan v. Emperor AI R 1948 Lah. 120 : 49 Cri L J. 305. At p. 123 Bhandari J. who pronounced the leading judgment said as follows:
The expression "repugnant" has not been defined in ''the statute. But it has come up for consideration in a large number of cases in Canada & Australia. These oases were reviewed with care by Naraslnga Rau J. in G.P. Stewart Vs. Brojendra Kishore Roy Chaudhury, He came to the conclusion that It is too narrow a test to Bay that two laws cannot be sates to be properly repugnant unless there is a direct conflict between them, as when one says ''do'' & the other ''dont''.'' There may well be cases of repugancy where both laws say ''don''t'' but in different ways. The true test Is that if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant & therefore, inoperative. Whether & to what extent in a given ease, the dominant law evinces such an contention must necessarily depend on the language of the particular law.
The extract from the judgment in G.P. Stewart Vs. Brojendra Kishore Roy Chaudhury, clearly shows that in arriving at the conclusion they came to, the learned Judges in that case drew inspiration freely from Australian cases dealing with the interpretation of Section 109 of the Australian Constitution. A paraphrase of the said section finds a place in the extract & as I propose to refer to two later Australian cases I think it advantageous to reproduce Section 109 itself here. It is as follows:
When a law of a State is inconsistent with a law of the Commonwealth, ,the latter shall prevail, & the former shall, to the extent of the inconsistency, be invalid.
One of the Australian cases referred to in G.P. Stewart Vs. Brojendra Kishore Roy Chaudhury, is that reported in Ex parte Mclean (1930) 43 C. T 472. In a subsequent case reported as Victoria v. The Commonwealth 1987 68 C. L. R. 618, Dixon J., a passage from whose judgment in the earlier case is quoted in the Calcutta decision formulated the test of inconsistency in Section 109 of the Australian Constitution as follows:
I attempted in Ex parte Mclean, (1930) 43 C. L. R. 483, to explain my conception of the principle upon which the decisions had proceeded, particularly those given upon the Commonwealth Conciliation & Arbitration Act, & there will be found all that is required for the purpose now in hand. Substantially, it amounts to this. When a State law, if valid, would alter, impart or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights & duties, then for a State law to regulate or apply to the Game matter or relation is regarded as a detraction from the full operation of the Commonwealth law & so as inconsistent.
The other Australian case I would refer is Carter v. Egg and Egg Pulp Marketing Board vict. 1942 66 C. L. R. 567. At pp. 573 & 574, Latham C.J., enunciated the test of inconsistency in these words:
Federal & State law, each-within the powers of the respective enacting Legislatures, may be inconsistent in terms in the sense that there is a direct conflict between them so that it is Impossible to give effect to both laws. A clear example of such inconsistency is to be found in R v. Brishane Licensing Court Ex parte Daniel 1920 23 C. L. R. 23. A State statute provided that a State vote on Liquor Licensing should be taken on the same day as that fixed for a poll at an election for the senate of the Commonwealth. A Commonwealth Statute provided that no vote of electors of a State should be taken under the law of a State on any day appointed for an election of the senate. There was a direct conflict between the two statutes & the State law was therefore inoperative.
But, when there is no inconsistency In the actual terms of the competing statutes, the Commonwealth Parliament may have shown an intention to make its legislation upon a particular subject exhaustive, so as to exclude any State legislation upon that subject, In such a case any State law upon the subject will be inoperative by reason of Section 109, [Clyde Engineering Co. Ltd. v. Cowburn, (1926) 37 C. L. R. 466; Huma v. Palmar 1926 88 C.L.R 441, where State legislation was held to'' be invalid u/s 109, Stock Motor Ploughs Ltd. v. Porsyth 1932 48 C. L. R. 128, where State legislation was held to be valid, there being no intention of the Commonwealth Parliament to exalude State laws upon certain subjects.]
The exercise of a power conferred by a Federal statute may result in State Legislation becoming inoperative. Thus if a State law is inconsistent with an award of the Commonwealth Conciliation & Arbitration Ct. either because there Is a direct conflict or because the award is intended to be a complete & exhaustive code in relation to particular matters, the State law is inoperative pro tanto: the State Legislation must give way: Engineers'' Cast (1920) 28 C. L. R. 129 at p 154; Clyde Engineering Co. Ltd. v. Cowburn, (1926) 37 C. L. R. 466 ; H.V. Mckay Ply. Ltd. v. Hunt 1926 38 C.L.R. 308; Ex parte McLean, (1930) 43 C. L. R. 472.
With the principles set out in the above decisions before me the conclusion would seem to be inevitable that the Advocate. General''s argument that the Central Act has replaced the stats law has to be accepted & I decide accordingly. The inference would seem to me fairly clear that the Central Parliament intended to make its legislation upon the subject of industrial dispute exhaustive so as to exclude any state legislation upon that subject. The result is that the Central Act prevails & the reference made by Govt, in the case in hand of the dispute for arbitration is neither unauthorised nor invalid. This disposes of the first ground raised before us.
Assuming for a moment that Mr. Varadaraja Iyengar''s argument that the state law would stand replaced only to the extent of poSitive repugnance I am not able to appreciate how that would advance his clients'' case any further with reference to this point. Section 10, Central Act, is word for word the same as Section 10 of Act XVI [16] of 1950 (Travancore-Cochin) & the fact the Govt, notfn cites a wrong Act as that under which they derive authority would not render the notfn. invalid if Govt, have the power vested in them otherwise. The very argument that the reference should have been made u/s 10 of the latter Act conceded that Govt, have that power & Mr. Varadaraja Iyengar did not dispute that such a mistake would not materially affect the validity of the reference & that the mistake whether clerical error or other-wise is one Govt, could rectify at any time.
The next question is whether Govt, made the reference tea non-existing Tribunal or in other words, to a Tribunal which had ceased to have authority to function as such, because the Act under which it was constituted had ceased to be in force. This argument is founded on the rule "that when an Act of Parliament is ''repealed'' it must be construed (except as to transactions passed & closed) as if it had never existed." As already mentioned the Central Act XIV [14] of 1947 defines a "Tribunal'''' as an Industrial Tribunal appointed under that Act. Admittedly there is no notfn , published u/s 7 of that Act constituting Resp. 2 Tribunal & on these materials Mr. Varadaraja Iyengar argued that without such fresh constitution Resp. 2 has no authority at all to function as an Industrial Tribunal. The Advocate-General sought to counter this by contending that the Govt, order making the reference is on its true construction a composite order making the reference under Sections 7 & 10, Industrial Disputes Act, 1947. It was'' argued that it is both an order of appointment of a Tribunal & an order of reference to the said Tribunal. To test the soundness of this argument it is necessary to examine the language & contents of the order. The order reads thus:
L. 4-2665/50/DD.
Whereas an Industrial dispute has arisen between Sri M. M. Nagilinga Nadar Oil Merchant, Alleppey & the Workmen employed in his shop at Alleppey represented by the Ambalapuzha Taluk Head Load Conveyance Workers'' Union, Alleppey in respect of matters mentioned in the annexture to this order.
And, whereas, in the opinion of Govt, it is necessary to refer the said industrial dispute for adjudication, Now, therefore, in exercise of the powers conferred by Section 10 (I) (C), Industrial Disputes Act 1947 (Central At (XIV [14] of 1947) Govt, hereby direct that the said Industrial Tribunal, Alleppey having the place of sitting at Alleppey. (Sic). Annexture. Whether the employer was justified in reducing the wage rates of the workers on 16-3-1948? If not, to what relief are the workers entitled?
Whether the demand of the workers for bonus is just & reasonable?
If so at what rate are they to be paid?
(By order of His Highness the Raj Pramukh)
V.K. Velajudhan, Secretary to Govt.
Govt. Secretariat, Development Department, Labour Section, Trivandrum, 31-7-1950.
I am aware of instances where Cts. have construed orders passed by Govt, under the Industrial Disputes Act as composite orders falling both under Sections. 7 & 10. See Birla Brothers Ltd. v. Modak I. L. R. 1948 Cal. 209 & Indian Paper Pulp Co. v. Indian Paper Pulp Workers'' Union AIR 1949 F. R. 148 : 1949 F. C. R. 348. In the first case on the language & contents of the reference order it was held that the Tribunal created there under was directed to adjudicate upon the particular dispute. There, there was reference only to Section 7 which empowers the constitution of Industrial Tribunals & no reference to Section 10 providing for references. In the latter case the order made mention of both the sections & among other things, the learned Chief Justice of India took that as a circumstance indicative of the fact that Govt, intended by their order both to constitute a Tribunal & to refer the particular dispute to that Tribunal. But reading the present order quoted above as a whole & giving the words employed therein their natural & ordinary meaning I am unable to accede to the learned Advocate General''s argument that it is a composite order similar to the orders concerned in the two cases cited. It is an order, pure & simple, referring the dispute to the Industrial Tribunal, Alleppey u/s 10 of the Act. The order assumed the existence of a Tribunal sitting at Alleppey. Nothing would seem to have been further from Govt''s intention than to constitute a fresh thereunder a Tribunal or to revive a defunct one.
The question therefore remains whether the 2nd reap; Tribunal was a live one when the reference I am concerned with here was made to it on 31-7-1950. During the course of the arguments under this head, reference was made to Section 23, Travancore Cochin Interpretation & General Clauses Act VII [7] of 1125 corresponding to Section 24, General Clauses Act x [10] of 1897. Section 23 of Act VII [7] of 1125 runs thus:
Where any Act Is repealed & re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notfn., order, scheme, rule form or bye-law, made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, & be deemed to have been made or issued under the provisions reenacted, unless & until it is superseded by any appointment, notfn., order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted.
Article 367 of the Constitution provides that unless the context otherwise requires the General Clauses Act 1897, shall, subject to any adaptation or modification that may be made therein under Article 312 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. It is clear if the provision of the General Clauses Act referred to above can be made applicable not only: to a case of express repeal & re-enactment but also to a case of repeal by implication by reason of repugnance or conflict, the 2nd Resp. Tribunal would continue to be a valid functionary even after the Central Act began to govern industrial disputes in the State. Mr. Varadaiaja Iyengar contended that the section can refer only to a case of express repeal & re enactment & not to cases where the provisions of the Constitution render a particular law void or inoperative. Inasmuch as the entry relating to Industrial & Labour disputes finds its place in the Concurrent List the Central Parliament has of course authority to make laws for the States as well with respect to matters covered by that entry. But whether the extension of a Central Act to the State in Part B of Sch. 1 can have the effect of repeal & re-enactment within the meaning of the concerned section of the General Clauses Act is the point for decision. An objection similar to the one Mr. Varadaraja Iyengar raised before me regarding the applicability of Section 24, General Clauses Act 1897 (that it would not apply to a case covered by Article 254 of the Constitution) was raised before a F. B. of the Bombay H. C. regarding the applicability of Section 6 of the said Act (our Section 4). See In re Keshav Madhav Menon, 52 Bom. L, R 540: (AIR (38) 1951 Bom. 188: 52 Cr. L J. 30). It was urged that that section would not apply to laws which have become void as a result of their being inconsistent with the provisions of Part III of the Constitution. Section 6, General Clauses Act, deals with the "effect; of repeal'''' of an enactment & saves pending proceedings, rights acquired, liabilities incurred etc. The question before the F. B. was whether the provision of that section would apply to the laws becoming void as contravening Fundamental Rights. A prosecution u/s 18 (l), Press (Emergency Powers) Act 1931 was launched before the Constitution came into force & after that even it was contended the prosecution cannot be further proceeded with as the particular provision of the Press Act was declared void under Article 13 (l) of the Constitution. The F. B. repelled the contention & held that Section 6, General Clauses Act, 1897, would save a proceeding which was pending prior to the commencement of the Constitution notwithstanding the fact that the Press Act itself or a part of it might becomes void as a result of the enactment of the Constitution & that Section 6. applies not only to Acts which have been repealed but also to those laws which have become void as a result of their being inconsistent with the provisions of Part III of the Constitution. The prosecution was hence allowed to proceed The following passage from the judgment of Chagla C.J., who delivered the judgment on behalf of the F. B occurring on p. 543 of the report would be very apposite for our present purpose The learned Chief Justics observed:
In substance & In its effect there is no difference between an Act which is repealed & an Act which is declared void. In both cases the Act ceases to be operative. The law is annulled.
Now, turning to Section 6, General Clauses Act, it applies to cases where any Act repeals any other Act. The repeal need not necessarily be by the legislative process on which Mr. Purshottam is relying. Section 6 is not confined to cases where the Legislature expressly repeals a named legislation. Section 6 must apply even to those cases where the effect of a subsequent legislation is to make an earlier legislation of no effect, & therefore when we turn to Article 13 it is a subsequent piece of legislation undoubtedly of high import being a part of our constitution which by its operation puts an end to certain laws which were in existence & which ceased to be in operation from a. particular date. I fail to understand why S 6 should only be applicable to a case where" the Legislature uses then expression "void" if in substance the effect of using these two expressions is exactly the same. Mr. Bbarap has urged that we must read Article 13 (1) as invalidating the laws referred to in that sub-clause from their very inception & from the time when they were enacted. It is impossible to accept that contention because in terms Article 13 (1) provides that these laws although valid when they were enacted & valid up to the date of the commencement of the Constitution, become void when the Constitution, comes into force by reason of the inconsistency with the fundamental rights laid down in Part, III.
It is clear that no particular efficiency attaches to the expression "void'''' used in Article 13 (1), when one looks another article in which the same expression has been, used & that Article is 254. That deals with the inconsistency that there may be between laws made by Parliament & the laws made by the Legislature of the States & it declares that to the extent that there is such an inconsistency the laws made by the Legislature of the State shall be void. Therefore any argument based upon the fact that the expression "void" used in the particular context of Part III should be given a special meaning loses much of its force when one finds the fame expression used by the Constituent Assembly in Article 254 which has nothing to do with any fundamental right. It Is instructive to note also that in Article 251, which again deals with inconsistency between the laws made by Parliament & the laws made by the Legislature of the States, the expression used by the Constituent Assembly is "inoperative" & not ''''void." Therefore the Constituent Assembly has used different expressions in different parts of the Constitution to indicate that particular law has ceased to have any effect & is no longer in operation There is no reason why we should apply Section 6, General Clauses Act only to Art 395 where the expression "repealed"'' is used & not to other articles where different expressions are used although in substance the meaning & the connotation of this expression is the same. Our attention has also been drawn by the Advocate General to Article 372 Looking to Articles 395, 13 & 372; the scheme seems to be that the Constituent Assembly has repsaled the old Constitution Act & under Article 372 it has continued in force all the laws which were In force before the commencement of the Constitution subject to their being altered or repealed by a competent Legislature or other competent authority. But this is subject to Article 13 which makes an exception in the case of those laws which are inconsistent with the provisions of Part III, & subcel. (2) of Article 372 gives the power to the President for the purpose of bringing the provisions of any law in force into accord with the provisions of the Constitution & to make adaptations & modifications. It is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declared to be void under Article 13, all vested rights & all proceedings taken should be disturbed or effected by particular laws ceasing to be in force as a result of any inconsistency which the fundamental rights guarantee to the subject. We are therefore of the opinion that Section 6, General Clauses Act applies to those laws which have become void as a re3ult of their being inconsistent with the provisions of Part III of the Constitution & inasmuch as the proceeding before the Chief Presidency Mag. which has been challenged by this petn. was already taken before the Constitution came into force, that proceeding cannot be affected by the result of Section 18 (1) being declared to be void under Article 13 (1) of the Constitution.
What the learned Chief Justice of Bombay said in that case regarding Section 6, General Clauses Act 1887 must equally apply to Section 24 of the said Act (our Section 23). If the effect of the enactment of the General Law is a virtual repeal of the State Law the same consequences as an express repeal & reenactment must follow. The 2nd Resp. Tribunal''s appointment would therefore continue to be valid notwithstanding the introduction of the Central Law to this State unless & until that Tribunal is superseded by the appointment of a new Tribunal. The second ground of Mr. Varadaraja Iyengar''s argument also therefore fails. 19. A question which suggested itself to me on the above aspect of the case ,was whether without recourse to the provisions of the General Clauses Act the 2nd Resp. Tribunal''s continuance as such even after the Central Act became law here can be held to be valid by reason of the provision in Section 41, Travancore-Cochin Industrial Disputes Act, XVI [16] of 1950 quoted elsewhere in this order as that section as noticed earlier, has no counterpart in the Central Act. In view of my decision recorded in the preceding para. I do not think it necessary to venture to express any opinion about it.
The next point relates to whether there is really an ''industrial dispute" in the case so as to entitle the Govt, to make a reference u/s 10 of the Act. The point of the argument was the petnrs. are not carrying on any "industry," that the relationship between the petnrs. on the one hand & their labour on the other is not that of "employer" & "workmen" within the meaning of the Industrial Disputes Act & that the reference is hence without jurisdiction. This is one of the matters about which the Tribunal has passed an order & it''s decision goes against the petnrs. However in the counter-affidavit filed by the Tribunal before this Ct. the Tribunal has chosen.So say in para. 11 thereof that the allegation that there was no dispute referable to a Tribunal & that the workmen were only casual labourers have yet to be tested by evidence which may be adduced by either party in the case. In view of this the order referred to can only be regarded as a tentative one holding that there is no ground to refuse in limine to make an award. The Govt, order referring the dispute cannot be taken to be conclusive of the point that between the present disputants there was an "industrial dispute" within the meaning of the Act. However it appears to me to be obvious that the matter cannot be decided except on evidence & this Ct. is there-fore at this stage not in a position to pronounce upon it. Whether on a decision given by the Tribunal on evidence the Ct. will be justified in examining its correctness or whether the question will be a more appropriate one for appeal is a question about which I need not express any opinion now.
Now I shall proceed to consider the fifth 1point raised before me viz., that the order of reference is invalid as in making it Govt did not conform to the rules of natural justice. What was urged was Govt, did not issue notice to the petnrs. or hear them before referring the dispute to the Tribunal. I am not aware of any law or rule that even where any judicial function is not involved an authority should give notice or hear both sides to a controversy before it takes action sanctioned by law. As far as I understand the position it is a pure executive or administrative act of Govt. to refer an industrial dispute to a Tribunal appointed by them. In my view there is no substance in this contention.
The last & the only further point remaining relates to the Tribunal''s order disallowing representation to the petnrs. through a qualified lawyer. According to Section 37 (3), Travancore-Cochin Industrial Disputes Act, XVI [16] of 1950, a party to an industrial dispute was allowed to be represented by a legal practitioner in any proceedings before a Ct. or Tribunal. The Central Act XIV [14] of 1947 as amended by "Act XLVIII [48] of 1950 altered the whole law relating to representation of partie3 before authorities constituted under the Act & with respect to the particular point of representation before a Tribunal the provision is that in any proceeding before a Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of other parties to the proceeding & with the leave of the Tribunal. Vide Section 36 (4). Elaborate provisions are made in the earlier part of the section regarding representation & without setting them out here it may well be mentioned that Capital & Labour are given equal facilities & sought to be placed on equal footing for representation through persons or organizations engaged in the industry concerned. Now as to the provision we are concerned with here viz., Section 36 (4), the contention raised before the Tribunal was that the provision was a negation of the Fundamental Right of the citizen guaranteed by the Constitution in Article 19 (1) (g) thereof viz., the right of a citizen to practice any profession or to carry on any occupation, trade or business. The petn. before me states that the said provision in the Industrial Disputes Act violates not only the said Fundamental Right but also that provided by Article 14 which is to the effect that the State shall not deny any person equality before the law or the equal protection of the laws with in the territory of India. Mr. Varadaraja Iyenger freely conceded, if I may say so very properly, that no question of violation of Article 19 (1) (g) is- involved here. It is not any fundamental right of the profession of law that is said to have been contravened. The only point is whether Capital & Labour are given equal faclitiea for representation. Reading 3. 86 as a whole or sub. Section (4) in particular I am unable to persuade myself to hold the State has denied equality before the law or the equal protection of the laws to Capital or to Labour. u/s 14, Bar Council''s Act (Travancore) an advocate is entitled as of right only to practice in the H. C. & Cts. subordinate thereto. The right of an Advocate to practise before other Tribunals is subject to the limitations, if any, imposed by the laws in force from time to time. A litigant can only have a corresponding right to engage legal aid. I have had the advantage of perusing the Parliamentary debates in connection with the passing of Act XLVIII [48] of 1950 & the proceedings show that the new impugned section was not in the original bill or the bill as it emerged from the Select Committee. The provisions regarding representation now found in the statute were introduced by the Hon''ble Member for Labour consequent on an agreement arrived at a tripartite conference between the representatives of Govt. Capital & Labour. The discussions further show the sole object of the Legislature was to place Capital & Labour on an equal footing. Experience showed that to allow representation through qualified lawyers had invariably the effect of putting labour at a disadvantage in that Capital always engaged the best legal talent available. A similar provision exists in the labour legislation of the Common-wealth of Australia & the parliamentary debates also show that such provisions exist in some of the continental countries of Europe. Opinion might no doubt differ as to the wisdom of this law, but of the merits of the policy of the Legislature Cts. cannot be judges. After all an industrial arbitration is more often an extension of the powers of collective bargaining. I cannot therefore find my way that the impugned provision of the Industrial Disputes Act, XIV [14] of 1947, amended by Act XLVIII [48] of 1950 vio''ates any Fundamental Right guaranteed to the citizens of the territory of India by their Constitution. The same august body that passed the Constitution passed this legislation as well & it cannot be that in introducing these provisions that body was unmindful of the Fundamental Rights guaranteed by the Constitution. The argument that as a result of the provisions of the impugned Section 36 the disputants in one case may get legal aid & that the disputants in another may not & that therefore there is no equality before the law or the equal protection of the laws for all citizens strikes me as betraying a complete lack of realistic approach to the problem. As the learned Advocate General put it, it is too fanciful or fantastic a thing regarding equality before law or the equal protection of the laws. The test can only be whether the contending parties to a particular dispute have such equality or such protection of the laws. The impugned section would, in my opinion, well survive that test. There is therefore no merit in this point either.
Before I conclude I have to revert to the preliminary objection raised by the Advocate General. The objection was that when other remedies are open to a litigant he should seek that remedy & not invoke the extraordinary jurisdiction vested in this Ct, under Article 226 of the Constitution. I have said a decision in favour of the Advocate General''s contention will not by itself entail the dismissal of this petn. In view however of the answer which the petnrs.'' learned Counsel gave to the preliminary objection I think a word or two from me will not be out of place here though I do not propose to express any final opinion on the question. Section 7, Industrial Disputes (Appellate Tribunal) Act, 1950, provides that subject to the limitations imposed by that section an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal. For our present purpose we need not refer to the limitations imposed by the section. The question is whether the two orders referred to earlier viz., the one overruling the preliminary objection raised by the petnrs., before the Tribunal & the other relating to Resp''s objection regarding the petnr''s representation by an Advocate would amount to an award or decision within the meaning of the section. Mr. Varadaraja Iyengar referred to the line of cases construing the term '' final order" in Section 109 (a), CPC (CPC) Act V [5] of 1908 & the same term as used in Section 205(1), Govt. of India Act, 1935. The decisions in Ram Chand v. Goverdhandas Viahindas 47 I. A. 124 : AIR 1920 P. C. 86 ; AIR 1933 58 (Privy Council) Kuppuswami Rao v. The King 1947 F. C. R. 180 : AIR 36 P. C. 1: 49 Cri. L. J. 625 & Mohammed Amin Bros. Ltd. v. Dominion of India AIR 1937 F. C. 77, belong to that line of cases & the test employed in them was ''finality in relation to the suit." The same test was applied by the Calcutta H. C. in Chandra Singh Dudhoria and Others Vs. The Midnapore Zemindary Co. Ltd., for interpreting Article 138 (1) of the Constitution. If after the order the suit is still a live suit in which the rights of the parties have still to be determined the view held in all these cases was that it would not constitute a final order within the meaning of the provisions referred to. To my mind it appears this line of oases cannot help the construction of Section 7, Industrial Disputes (Appellate Tribunal) Act, 1950, in that the word "award" is given a very wide connotation under the Industrial Disputes Act, 1947. An award is defined in Section 2 (b) of the Act & it states an "award" means an interim or final determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto. The view taken in the cases referred to is that the expression, "final order" has been used in contradistinction to what is known as "interlocutory order." When the Act expressly states that an award may be final or interim or there may be one even when any question relating to an industrial dispute is determined by an Industrial Tribunal I am inclined to think that the lead of the cases referred to cannot be followed in this respect. The word "decision" is not defined in the Act. When an "award" itself need not necessarily finally determine the entire dispute it may not be correct to give to the expression "decision" a meaning out of tune with the meaning given to "award." The juxtaposition of the two expressions may not justify it. Anyhow in view of what I have said on the merits of the petn. it is unnecessary to express any final opinion on the points arising from the preliminary objection. I have said so much just to indicate that the point deserves consideration if the matter arises in another case. At the argument no attention was paid to the definition given to by the Act to the term "award."
In the result I hold that the petn. cannot succeed on any of the grounds urged before me & I accordingly dismiss it with costs. dvocate''s fee Rs. 100 (Rs. 75 to reaps. 2 & 3 & Rs. 25 to Resp. 1). The stay order will stand vacated. Order accordingly.