JUDGMENT
Nripendra Kumar Bhattacharyya, J.
1. The present appeal is directed at the instance of the appellant herein against the order dated January 18, 1994 passed in Matter No. 1991 (Andrew Yule and Company Ltd. v. State of West Bengal) by Dilip Kumar Basu. J. whereby the learned Judge granted an interim order restraining the respondent from giving effect or further effect to the order of reference being No. 1729-IR/IR/lI-L/155/90, dated November 2, 1993 (Annexure H to the writ petition), until further order. The respondents were further restrained from proceeding with the case No. VIII-212 of 1993 until further orders. Liberty was given to the respondents to apply for variation and/or modification of the interim order with notice.
2. The fact giving rise to this appeal is that the appellant company is an existing company within the meaning of Companies Act. 1956 and the Company was carrying business of manufacturer, producer and supplier of tea, different electrical goods, electrical air pollution equipment etc., having its registered office at 8, Dr. Rajendra Prasad Sarani, Calcutta.
3. During the relevant time there was only one recognised Union of that Company, namely, Andrew Yule & Co Ltd., (Calcutta Branch) Employees’ Union, (which term will be referred to hereinafter as the Employees’ Union).
4. The said Union submitted a charter of demands to the management of the company sometime on September 1, 1987 concerning revision of basic pay, dearness allowance, house rent allowance and city compensation allowance. The matter ended in tripartite settlement entered on September 18, 1989 with retrospective effect from September 1, 1989. The period is specified for expiry of that agreement was December 31, 1990.
5. Sometime on March 19, 1990 some of the members of the said employees’ union resigned from that union and formed a union under the name Andrew Yule & Co. Ltd., and its group (Calcutta Branch) Clerical staff Union, which was registered on March 19, 1990. (the union will be referred to hereinafter as the staff Union).
6. The said staff union submitted a charter of demands to the authorities of the company sometime on November 19, 1990. It is alleged that the said charter of demands was also in relation to basic pay, dearness allowance, house rent allowance etc.
7. According to the company the demand was made within the period covered by the tripartite settlement dated September 18, 1989 and as the demands were unreasonable and exorbitant, no negotiation was held between the company and the said staff union and the matter was referred to the conciliation officer, respondent No. 3 in the petition, for conciliation.
8. The conciliation officer closed the conciliation proceeding on the ground that the points of dispute raised by the staff union was the subject matter of the agreement dated September 18, 1989 and as such, no industrial dispute could be raised till the expiry of the said agreement which was to expire on December 31, 1990 and informed the same to the said Union by his letter dated January 17, 1991 (Annexure A to the writ petition).
9. Thereafter on April 22, 1991 the company entered into a bi- partite settlement with the Employees’ Union revising the wage structure, house rent allowance, merger of dearness allowance, house building advance etc. with retrospective effect from January 1, 1991 (Annexure B to the writ petition). The said bi- partite agreement is to expire on December 31, 1994.
10. On April 26, 1991 the company issued notices to all its employees offering to pay in accordance with the said bi-partite settlement including the members of the appellant union on condition that the said employees would individually convey their acceptance of the terms and conditions of the said bi-partite settlement without any reservation (Annexure C to the writ petition)
11. The conciliation officer respondent No. 3, who closed the conciliation proceeding earlier reopened the proceeding and by his order dated June 20, 1991 directed the company to make payment regarding the benefits arising out of the bi-partite settlement to the members of the appellant Union.
12. The company by a letter dated June 26,
1991 intimated the conciliation officer-cum-
Joint Labour Commissioner, Government of
West Bengal that unless and until the terms and
conditions of the bi-partite settlement dated
April 22, 1991 are being accepted individually,
no payment can be made to the employees who
are outside the Employees’ Union.
13. The company was asked to attend the conciliation proceedings and the company attended the conciliation proceedings separately and represented to the conciliation officer for, dropping the conciliation proceeding. Thereafter the conciliation officer submitted a failure report to the Government.
14. Thereafter the employees outside the Employees’ Union accepted payment in terms of the said bi-partite settlement on furnishing individually the acceptance of the terms and conditions of the bi-partite settlement. The fact was intimated to the conciliation officer who expressed, his inability to do anything in the matter as he had already submitted the failure report to the Government.
15. The Staff Union, on the other hand, seeing the delay in the matter of conciliation moved this High Court in writ jurisdiction against the Government of West Bengal and the Hon’ble Mr. Susanta Chatterjee, J. by his order dated February 18, 1992 in C.O. No. 326 (W) of 1993 directed respondent No. 1, Government of West Bengal to consider the representation of the Staff Union within eight weeks from the date of that order.
16. Thereafter the respondent No. 1 made a reference of the dispute for adjudication to the 8th Industrial Tribunal being No. 1729-IR/IR/II-L/155/90 dated November 2, 1993. The issues referred to for adjudication to the said Tribunal are as follows:-
1. Pay, Pay pattern, Pay Fixation, Pay Scales and Fitment benefit;
2. Dearness Allowance, and
3. House Rent Allowance.
17. Against the said reference the company as writ petitioner moved this High Court in writ jurisdiction before the Hon’ble Mr. Dilip Kumar Basu.
18. After hearing the petitioner the Hon’ble Mr. Dilip Kumar Basu, J. on January 13, 1994, inter alia, passed an interim order as under:-
“There will be an interim order restraining the respondent from giving effect or further effect to the order under reference being No. 1729-IR/IR/I1-L/155/90 dated November 2, 1993 being annexure ‘G’ to the writ petition until further order. The respondents are restrained from proceeding with the case No. VIII- 212/93 until further order.
The respondents are given liberty to apply for variation and/ or modification of the interim order with notice.”
Against that order the Staff Union has come up in the appeal.
19. The company in this writ petition challenged the reference primarily on three grounds.
(a) The reference has been made by the respondent No. 1 behind the back of the company and without any reference to it and as such there is violation of principal of natural justice.
(b) Reference has been made without any jurisdiction as during the relevant time there was existence of only one Union namely Andrew Yule & Company Ltd. (Calcutta Branch) Employees Union and all the employees in the Head Office were its members. A tripartite settlement was entered between the Company and the said Union on September 18, 1989 which was due to expire according to the terms of the settlement of December 30, 1990. The charter of demand by the staff union having been submitted sometime on September 19, 1990 during the subsistence of that tripartite settlement, the reference is hit by Sub-section (2) of Section 19 of the Industrial Disputes Act, 1947.
(c) The employees who are not the members of the employees union having accepted all the benefits arising out of the bi-partite settlement dated April 22, 1991 without any reservation, there was no expediency for reference of the matter. The reference having been made, amongst others, on the ground of expediency the reference is bad.
20. Appearing for the appellant the Learned Advocate Mr. Arunava Ghosh contended in the first place that the power to make reference by the Government under Section 10 of the Industrial Disputes Act is discretionary and administrative in nature. The dispute may be in existence or apprehensive. The court cannot question the adequacy or inadequacy of the material for forming Government’s opinion and the matter is not justiciable.
21. In support of his contention he placed reliance on two decisions of the Supreme Court, Avon Services Production Agencies (p) Ltd., v. Industrial Tribunal, Haryana and Ors., reported in (1979-I-LLJ-l) and State of Madras v. C.P, Sarathy and Anr., reported in (1953-1-LLJ-174)(SC).
22. In the next place he contended that a settlement arrived at by an agreement between the employer and the workmen otherwise than in the course of conciliation proceedings is binding only on the parties to the agreement, but a settlement arrived at in the course of conciliation proceeding is binding not only on the parties to the Industrial Dispute but also on the other per-sons specified in Clauses (a), (b’), (c) and (d) of Sub-section (3) of section 18 of the Industrial Disputes Act.
23. In support of his contention he referred to the case of Tata Chemicals Ltd. v. The workmen employed under M/s. Tata Chemicals Ltd, reported in (1978-II-LLJ-22) (SC).
24. In this connection, Mr. Ghosh further contended that 1989 settlement is not a settlement entered in course of conciliation proceeding and as such, it is not binding on the members of the Staff Union. He further contended that the matter is to be adjudicated before the Tribunal on evidence and the same cannot be adjudicated in writ jurisdiction,
25. Mr. Ghosh in the next place contended that the question of jurisdiction must be raised before the Tribunal at the earliest possible moment. In the event of failure to take such objection the person who wishes to raise that point has to satisfy the Court that he was unaware of the defect regarding the jurisdiction and that is why it was not taken. With these exceptions, the point of jurisdiction must be taken before the Tribunal at the first instance.
26. In support of his contention he relied on a Single Bench decision of this Hon’ble Court in Suprova Sundari Devi v. Commissioner of Income Tax, West Bengal and Ors., reported in 62 CWN 426.
27. Mr. Ghosh contended that the writ petitioner has contended in its writ petition that the respondent has no jurisdiction to refer the dispute to the Tribunal. So the jurisdiction point should be taken before the Industrial Tribunal and not before the High Court in writ jurisdiction.
28. Mr. Ghosh contended that the question of expediency being essentially a question of fact that must be adjudicated by the Tribunal and not by the High Court in its writ jurisdiction.
29. According to Mr. Ghosh the notice under Sub-section (2) or sub-s. (6) of Section 19 of the Industrial Disputes Act must be given by a party representing the majority of the person bound by the settlement or award and in the absence of same, the award is not binding upon the other workmen in view of Sub-section (7) of s. 19.
30. The Learned Advocate Mr. Bhaskar Gupta contended on the other hand, on behalf of the Company that a previous award being still binding, a fresh reference on the selfsame matter is barred under the law.
31. In support of his contention Mr. Gupta referred to the case of Management of the Bangalore Woollen, Cotton and Silk Mills Co. Ltd, v. Workmen and Anr., reported in (1968-I-LLJ-555) (SC).
32. In the next place Mr. Gupta contended that the executives have to reach their decision by taking into account the relevant considerations. They should not refuse to consider relevant material nor they should take into account wholly irrelevant or extraneous consideration for forming their opinion. They should not misdirect themselves on a point of law. Then only such adecision will be lawful. If those requisites are not fulfilled courts have the power to interfere with that order and to see that the executives act lawfully.
33. In support of his contention he relied on the cases of Hochtief Gammon v. State of Orissa and Ors., reported in (1975-11- LLJ-4I8) (SC); State of U. P. and Ors. v. Maharaja Dhar-mander Prasad & Ors., and also a Orissa High Court decision in the case of Orient Paper Mills Sram’tk Congress v. State of Orissa & Ors., reported in (1988-II-LLJ-75).
34. In the next place Mr. Gupta contended that the power of Government to refer or its duty to refer as laid down in Section 10 of the Industrial Disputes Act is guided by two qualifications; one, it has to arrive at a subjective opinion as to whether any industrial dispute existed or is apprehended and the other, even if it does come to such conclusion, or even if the facts are so patent that the existence of a dispute cannot be denied, still the expediency to refer to adjudication is left open to Government.
35. In support of his contention Mr. Gupta referred to a Single Bench decision of this Hon’ble Court in the case of Royal Calcutta Golf Club Mazdur Union v. State of West Bengal and Others, reported in (1957-I-LLJ-2I8).
p 36. Mr. Gupta contended that in the instant case as the workmen, who are not the members of the employees union, received the payment arising out of the bi-partite settlement dated April 22, 1991, there was no expediency in the matter and the reference of the dispute by the Government on the ground of expediency is bad and illegal.
37. Mr. Gupta also referred to a Karnataka decision in the case of Indian Telephone industries Ltd., v. State of Karnataka and Others, reported in (1978-I-LLJ-544). That is a case where the Government refused to refer the disput to the Tribunal but on representation by workmen referred the dispute and in that connection, the Karnataka High Court found that there was violation of principle of natural justice. Factually that case is distinguishable from the present case and in our view that case has got no bearing with the present case.
38. Mr. Gupta lastly contended that the members of the Staff Union is a minority union in comparison to the employees union where the members are large in number. The reference by the Government at the instance of the said Union is not permissible. In this connection, reference was made to the case of State of Punjab v. The Gandhara Transport Co. (P) Ltd., & Ors.. .
39. Having heard the learned Advocates for the parties and considering the materials on records it appears to us that the company challenges the reference on the grounds, inter alia, violation of principle of natural justice for which Mr. Gupta relied on the Karnataka decision referred to above. But we have already pointed out that in that case the facts are quite different and the same is distinguishable from the instant case.
40. The conciliation officer invited the company to take part in the proceedings and the company took part in the conciliation proceeding separately and made its representation. So, it cannot be said that there is any violation of principle of natural justice.
41. The company in a roundabout way has questioned the adequacy of the material before the Government for forming its opinion and to refer the dispute. In this connection the submission of Mr. Gupta may be reckoned where Mr. Gupta submitted that there was already a bi-par-tite settlement and in the terms of the said settlement the members of the staff union without any reservation accepted the payments and as such there was no material before the Government to form its opinion about the existence of a dispute.
42. The Supreme Court in the case of State of Madras (supra) and Avon Services Production Agencies Pvt. Ltd., (supra) has held that the dispute may be actually in existence or there may be an apprehension for which reference under Section 10 of the Industrial Disputes Act can be made by the Government. The power is discretionary and administrative in nature, the question of adequacy or inadequacy of the material for forming opinion by the Government is not justiciable. According to that principle laid down by the Supreme Court that question is not justiciable by the Court.
43. According to Mr. Gupta, the members of the Staff Union having accepted the payments in terms of the bi-partite settlement, 1991 without any reservation the principle of estoppel will come into play and according to Mr. Ghosh the same will not be a bar for reference of the dispute by the Government as there can be no estoppel against the statute.
44. Mr. Ghosh also contended that acceptance of the benefit arising out of the bi-partite
settlement will not operate as a bar, in view of Sub-section (7) of Section 19 of the Industrial Disputes Act.
45. Whether there was an expediency or not in the matter of reference is to be decided on evidence in the peculiarity of facts and circumstances of the present case and the same cannot be decided by the High Court in its writ jurisdiction. Accordingly, we do not differ with the submission of Mr. Ghosh in this regard.
46. Mr. Gupta also referred to the jurisdictional question regarding reference of the dispute to the tribunal. That point is to be taken before the tribunal at the initial stage in the earliest opportunity. That is the view expressed by the Calcutta High Court in the case of suprava Sundary Devi (supra). So that question cannot be decided by the High Court in its writ jurisdiction.
47. In view of our discussions above, we find merit in the appeal.
48. The appeal is, accordingly, allowed. The impugned order is hereby set aside.
All interim orders, if any, stand vacated.
The writ application is also disposed of accordingly.
There will be no order as to costs.
Learned Counsel appearing for the respondent No. 1 prays for stay of the operation of this order. This prayer is refused.
49. All parties are to act on a signed copy of the minutes of the operative portion of the judgment and order on usual undertaking.
Prabir Kumar Majumdar, J.
50. I agree.