{"id":83155,"date":"1967-01-20T00:00:00","date_gmt":"1967-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ahmedabad-millowners-vs-i-g-thakore-president-ors-on-20-january-1967"},"modified":"2016-11-16T14:01:28","modified_gmt":"2016-11-16T08:31:28","slug":"ahmedabad-millowners-vs-i-g-thakore-president-ors-on-20-january-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ahmedabad-millowners-vs-i-g-thakore-president-ors-on-20-january-1967","title":{"rendered":"Ahmedabad Millowners’ … vs I.G. Thakore, President & Ors on 20 January, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ahmedabad Millowners’ … vs I.G. Thakore, President & Ors on 20 January, 1967<\/div>\n
Equivalent citations: 1967 AIR 1091, \t\t 1967 SCR (2) 437<\/div>\n
Author: V Bhargava<\/div>\n
Bench: Bhargava, Vishishtha<\/div>\n
           PETITIONER:\nAHMEDABAD MILLOWNERS' ASSOCIATION & ANR.\n\n\tVs.\n\nRESPONDENT:\nI.G. THAKORE, PRESIDENT & ORS.\n\nDATE OF JUDGMENT:\n20\/01\/1967\n\nBENCH:\nBHARGAVA, VISHISHTHA\nBENCH:\nBHARGAVA, VISHISHTHA\nHIDAYATULLAH, M.\nMITTER, G.K.\n\nCITATION:\n 1967 AIR 1091\t\t  1967 SCR  (2) 437\n\n\nACT:\nBombay\tIndustrial  Relations  Act 1946 (Bombay\t Act  11  of\n1947),\ts. 2(3)-Applicability of Act to cotton\tindustry  in\nAhmedabad-Bombay   Industrial  Disputes\t Act  1938   whether\nrepealed by the (Central) Industrial Disputes Act, 1947.\nConstitution of India, Art 14-Reference of dispute by  Union\nof Workmen under s. 73A\t of Bombay Act 11 of 1947-Section in\nnot giving similar right to employers whether violates\tArt.\n14.\n\n\n\nHEADNOTE:\nA dispute regarding amendment of rules relating to privilege\nleave\tetc.   arose  between  the   Ahmedabad\t Millowners'\nAssociation and the union of workmen employed in the textile\nindustry.   After conceliation proceedings were declared  by\nthe  Conciliator  to  have failed, the\tunion  referred\t the\ndispute\t to the Industrial Court under s. 73A of the  Bombay\nIndustrial  Relations  Act,  1946.   The  Industrial   Court\ndecided against the Millowners who filed a writ petition  in\nthe'  High Court and thereafter appealed to this Court.\t  It\nwas  urged on behalf of the appellants that (i) s.  73A\t was\nviolative  of  Art. 14 of the Constitution since it  gave  a\nright  to the workers union to make a reference but  not  to\nthe  employer (ii) the Act had not been made -applicable  to\nthe  cotton industry at Ahmedabad under s. 2(4) and  it\t was\nnot  applicable under s. 2(3) because the Bombay  Industrial\nDisputes  Act,\t1938 was repugnant  to\tCentral)  Industrial\nDisputes Act, 1947 and must be deemed to have been repealed.\nHELD:(i) Section 73A was not violative of Art. 14.\nWhenever  any  industrial dispute arises  the  employer\t can\nalways ensure arbitration of that dispute by making an offer\nto  the union under s. 66 of the Act whereupon a  registered\nand  approved union is compelled to agree to  submission  of\nthe dispute to arbitration.  Clearly therefore there was  no\nneed to make any Provision empowering the employer to make a\nreference of the dispute -for arbitration to the  Industrial\nCourt.\t On the other hand if a Union wants a dispute to  be\nsettled\t and  even offers that the dispute be  submitted  to\narbitration under s. 66 of the Act, the employer can refuse,\nwhereupon the union would be left without any remedy.  It is\nobvious\t that s. 73A was enacted to fill this gap and  place\nthe union on with the employer so as to enable the union  to\nhave  any  dispute = by arbitration even when  the  employer\ndoes  not  agree  to arbitration.  This\t section,  in  these\ncircumstances did not at all require that the right  granted\nto the union should also be granted to the employer. [441 G-\nH]\nThere  was no difference in the procedure to be followed  by\nthe Industrial Court in a reference under s. 73A and that to\nbe followed when the reference is under s. 66.\tIn both\t the\nprocedure under s. 92 had to be followed. [443 E-F]\n(ii)Chapter V of the Bombay Industrial Disputes Act 1938 was\nnot  repugnant\tto  the Central Act of\t1947  and  therefore\ncontinued to be in force, and consequently under s. 2(3)  of\nthe  Bombay  Industrial Relations Act 1947  the\t latter\t Act\nbecame applicable to the industry of the appellants and\t did\nnot  require  a\t notification-\tunder s.  2(4)\tto  make  it\napplicable [446 G-H; 447 A-B]\n438\nEx  Parte McLean, 43 C.L.R. 472 Victoria and Others  v.\t The\nCommonwealth  of  Australia  and  Others,  58  C.L.R.\t618,\nZaverbhai  Amaidas v. The State of Bombay,<\/a> [1955]  1  S.C.R.\n799, Ch.  Tika Ramji & Ors. v. The State of Uttar Pradesh  &\nOrs.,<\/a> [1956] S.C.R. 392 and Deep Chand v. The State of Uttar\nPradesh and Others,<\/a> [1959] -Supp. 2 S.C.R. 8.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 490 of 1965.
\nAppeal from the judgment and decree dated April 30, 1964  of
\nthe  Gujarat High Court in Special Civil Application No.  39
\nof 1963.\n<\/p>\n
S.   T.\t Desai,\t P. B. Patwari, and O. C.  Mathur,  for\t the
\nappellants.\n<\/p>\n
Respondent No. 2 appeared in person.\n<\/p>\n
H.   R.\t Gokhale,  S.  P.  Nayyar  for\tR.  H.\tDhebar,\t for
\nrespondent No. 3.\n<\/p>\n
The Judgment of the Court, was delivered by
\nBhargava, J. The appellants in this appeal are the Ahmedabad
\nMill  owners Association, of which all the cotton  mills  in
\nAhmedabad  local  area\tare members,  including\t the  second
\nappellant,  the Nagd Mills Ltd.\t The third  respondent,\t the
\nTextile\t Labour Association, Bhadra, Ahmedabad\t(hereinafter
\nreferred to as “the Union”) represents the workmen  employed
\nin  the\t various  mills\t which\tare  members  of  the  first
\nappellant Association.\tUnder Standing Orders ,Settled under
\nthe Bombay Industrial Relations Act, 1946 (Bombay Act XI  of
\n1947) (hereinafter referred to as “the Act”), conditions  of
\nservice, including those relating to leave, were  prescribed
\nin  view  of  clause  6 of Schedule 1  of  the\tAct.   These
\nStanding Orders were settled at a time when this clause 6 of
\nthe First Schedule to the Act read as follows:-\n<\/p>\n
\t      “Conditions, Procedure and Authority to  grant
\n\t      leave.”  Subsequently, Schedule 1 was  amended
\n\t      so as to read as:\n<\/p><\/blockquote>\n
\t      “Procedure and authority to grant leave,”\t and
\n\t      simultaneously,\tclause\t11  was\t  added\t  in
\n\t      Schedule 11 which read as:\n<\/p><\/blockquote>\n
\t      “All matters pertaining to leave and holidays,
\n\t      other than those specified in items 6 and 7 in
\n\t      Schedule 1.”\n<\/p><\/blockquote>\n
Consequent  to\tthis  amendment in  the\t Schedules,  matters
\npertaining   to\t leave\tcould,\tthereafter,  no\t longer\t  be
\nprescribed  by\tStanding  Orders,  which  were\tconfined  to
\nmatters contained in Schedule Iorly.\n<\/p>\n
By  a letter dated 21st April,, 1961, the Union gave  notice
\nto  the\t first appellant, desiring that changes be  made  as
\nspecified  in  the Annexure to this letter.   Those  changes
\nsought in the Annexure related to grant of privilege  leave,
\nsick leave, casual leave, and pay in lieu of privilege leave
\nto all workers employed in the local textile industry in the
\nsame manner in which, under the earlier Standing
\n 439<\/span>
\nOrders, the clerical and some other staff were granted these
\nbenefits.  This notice was given by the Union under s. 42(2)
\nof  the\t Act.\tThe dispute was not  amicably  settled,\t and
\nconsequently, the matter was referred for conciliation.\t The
\nconciliation  proceedings also failed, and,  thereupon,\t the
\nConciliator,  on 23rd June, 1961, issued a certificate\tthat
\nhe had come to the conclusion from the discussions which the
\nparties had before him that the dispute’ was not capable  of
\nbeing  settled\tby conciliation.  Thereupon, by\t the  letter
\ndated 29th July, 1961, the Union referred the dispute to the
\nIndustrial  Court under section 73A of the Act.\t Before\t the
\nIndustrial Court, various pleas were taken on behalf of\t the
\nappellants, and some of these pleas were the  subject-matter
\nof   preliminary  issues  which\t were  decided\tbefore\t the
\nIndustrial  Court  could proceed to give  the  final  Award.
\nThough\ta number of such preliminary issues were decided  by
\nthe  Industrial Court, we are only concerned with  two\tsuch
\nissues, as they were the only two matters pressed before  us
\non  behalf  of\tthe appellants in this\tappeal.\t  One  issue
\nraised was that s. 73A of the Act was ultra vires Article 14
\nof  the Constitution as it granted a right to the  Union  to
\nmake  a\t reference to the Industrial Court,  while  no\tsuch
\nright was granted to the employers.  The second point  urged
\nwas  that  the Act did not apply to the cotton\tmills  which
\nwere members of the first appellant Association, because  it
\nhad  not been made applicable to them under s. 2(4)  of\t the
\nAct,  while it could not become applicable to them under  s.
\n2(3) of the Act, because the Bombay Industrial Disputes Act,
\n1938,  was  not\t in force in  these  industries\t immediately
\nbefore the commencement of the Act.  Both these points\twere
\ndecided\t by  the Industrial Court  against  the\t appellants.
\nConsequently, the appellants moved a petition under Articles
\n226  and  227  of  the Constitution in\tthe  High  Court  of
\nGujarat.   The High Court rejected these  preliminary  pleas
\nraised\ton behalf of the appellants and upheld the  view  of
\nthe Industrial Court that the reference was competent.\t The
\nappellants have now come up to this Court under\t certificate
\ngranted\t by  the High Court against this order of  the\tHigh
\nCourt.\n<\/p>\n
As  we have mentioned earlier, the appellants had  raised  a
\nnumber of pleas which were the subject-matter of preliminary
\nissues before the Industrial Court and several’ of them were
\nthe  subject  matter of the petition before the\t High  Court
\nalso.  In this Court, however, reliance has been placed only
\non the two pleas, mentioned above.  The first plea is  based
\non  the language of s. 73A of the Act which, on the face  of
\nit, grants the right to a Union only to make a reference  of
\nan  industrial\tdispute for arbitration\t to  the  Industrial
\nCourt and does not grant any such right to an employer.\t  It
\nwas,  however, urged on behalf of the respondents  that,  in
\nfact,  this section was introduced in the Act for  the\tvery
\npurpose\t of placing the employers and the Union on terms  of
\nequality,  and that, instead of creating any  discrimination
\nbetween them, this section, on the
\n440<\/span>
\ncontrary, was necessary to satisfy the requirements of\tArt.
\n14 of the Constitution.\n<\/p>\n
To appreciate this submission made on behalf of the  respon-
\ndents,\tcertain features of the Act have to be examined\t and
\ntheir implication taken into account.  Section 73A grants  a
\nright  of  making a reference of an industrial\tdispute\t for
\narbitration  to the Industrial Court only to  “a  registered
\nunion  which is a representative of employees and  which  is
\nalso an approved union.” Further, under the proviso to\tthat
\nsection, the reference cannot be made if the employer offers
\nin  writing before the Conciliator to submit the dispute  to
\narbitration under the Act and the Union refuses to agree  to
\nit.  Two other conditions attached are that the dispute must
\nfirst  be submitted to the Conciliator and can\tbe  referred
\nfor  arbitration  to  the Industrial  Court  only  when\t the
\nConciliator  certifies\tthat the dispute is not\t capable  of
\nbeing  settled by conciliation, and that no such dispute  is
\nto  be referred if, under any provisions of the Act,  it  is
\nrequired  to  be  referred  to\tthe  Labour  Court  for\t its
\ndecision.    It\t is  the  effect  of  all   these   detailed
\nprovisions,  laying down limitations for reference under  s.
\n73A, that requires examination.\n<\/p>\n
Under  s.  12  of the Act, the\tRegistrar  has\tto  maintain
\nregisters of unions registered by him and a list of approved
\nunions.\t A Union is entitled to registration only if, during
\nthe whole of the period of three calendar months immediately
\npreceding  the\tcalendar month in which it so  applies,\t the
\nmembership  of the Union has been not less than 15 per\tcent
\nof  the total number of employees employed in the  industry,
\nwhen  it  can be registered as a Representative\t Union.\t  In
\ncase  there is no such Representative Union, a Union can  be
\nalso registered either as a Qualified Union or as a  Primary
\nUnion.\t But  it is clear from the language of s.  73A\tthat
\nonly a Representative  Union has been given the right  under
\nthat section.  Further, section 73A requires that the  Union
\nmust  also be an approved Union, which means that the  Union
\nmust  comply with the requirements of s. 23 of the  Act\t and
\nhave  its  name entered in the approved list.\tAmongst\t the
\nconditions  required  to be complied with by a Union  to  be
\nbrought.  on the, approved list, the most important  is\t one
\nwhich  lays  down  that its rules must\tprovide\t that  every
\nindustrial dispute, in which a settlement is not reached  by
\nconciliation,\tshall\tbe  offered  to\t be   submitted\t  to
\narbitration, and that arbitration under Chapter XI shall not
\nbe refused by it in any dispute.  It will thus be seen\tthat
\nthe  right of making reference under s. 73A is only  granted
\nto  a  Union which is registered as a  Representative  Union
\nand,  being on approved list, has already made rules  laying
\ndown that the Union shall offer every industrial dispute for
\nsubmission   to\t arbitration  and  will\t also\tnot   refuse
\narbitration of any dispute if the employers offer to  submit
\nthe  dispute  for arbitration under Chapter XI of  the\tAct.
\nSection\t 66 makes provision for submission of an  industrial
\ndispute\t for arbitration.  Sub-s. (1) of that section  gives
\nthe power to make a
\n 441<\/span>
\nreference to any person chosen by agreement by the disputing
\nparties,  while\t sub-s’\t (2)  gives  the  option  that\t the
\nsubmission of the dispute may be made to the arbitration  of
\na Labour Court or the Industrial Court.\t Further, sub-s. (5)
\nof  s.\t58  requires that before  closing  the\tconciliation
\nproceedings before him, the Conciliator shall ascertain from
\nthe  parties whether they are willing to submit the  dispute
\nto. arbitration.  These disputes, to which these  provisions
\napply,\tcan  only  be  those  not  relating  to\t matters  in
\nSchedules I and III, because, under sub-s. (1) of s. 42, and
\nemployer  is given the right to give a notice of  change  in
\nrespect\t of any industrial matter specified in Schedule\t 11,
\nwhile, under sub-s. (2) of s. 42, the employee is granted  a
\nsimilar’.  right to give a notice if a change is desired  in
\nrespect of an industrial matter not specified in Schedule  I
\nor Ill.\t In respect of matters covered by Schedules    I and
\n111,  provision\t is made in sub-s. (4) of s. 42\t which\tlays
\ndown  that  such  disputes are to be decided  by  making  an
\napplication  to the Labour Court; and, as we have  indicated
\nearlier,  s.  73A  does\t not apply  to\tdisputes  which\t are
\nrequired  to be referred to a Labour Court.  The  result  of
\nall  these provisions is that s. 73A of the Act\t comes\tinto
\nplay only in cases where the dispute relates to matters\t not
\ncontained  in  Schedules  I  and III,  the  dispute  is\t not
\nresolved by private agreement or by conciliation, and  there
\nis  no submission of the dispute to arbitration under s.  66
\nof the Act.\n<\/p>\n
It is in this light that the provision which has to be\tmade
\nby  the\t Union\tin  its\t rules\tunder  s.  23(1)(v)  assumes
\nimportance.   Whenever\ta  dispute is raised  either  by  an
\nemployer  or by a Union which can ultimately take  advantage
\nof s. 73A; of the Act, the Union must invariably offer\tthat
\nthe  dispute  be  submitted  to\t arbitration,  and,  in\t the
\nalternative, if the employer offers to submit the dispute to
\narbitration,  the Union must not refuse it.  The  result  is
\nthat in respect of any such dispute, the Union has no option
\nbut to offer or agree to arbitration of the dispute under s.
\n66  of\tthe  Act.   On the other  hand,\t there\tis  no\tsuch
\nlimitation placed on the employer.  There is no provision in
\nthe  Act  making it compulsory for the\temployer  either  to
\nsubmit\tthe  dispute  to  arbitration or  to  agree  to\t the
\nsubmission of the dispute to arbitration when offered by the
\nUnion.\t  Consequently,\t whenever  any\tindustrial   dispute
\narises,\t the employer can always ensure arbitration of\tthat
\ndispute\t by making an offer to the Union under s. 66 of\t the
\nAct, whereupon the Union is compelled to agree to submission
\nof  the dispute to arbitration.\t Clearly,  therefore,  there
\nwas no need to make any Provision empowering the employer to
\nmake  a\t reference  of the dispute for\tarbitration  to\t the
\nIndustrial  Court.   On the other hand, if a Union  wants  a
\ndispute\t to be settled and even offers that the\t dispute  be
\nsubmitted  to  arbitration  under  s. 66  of  the  Act,\t the
\nemployer  can  refuse,\twhereupon the Union  would  be\tleft
\nwithout\t any remedy.  It is obvious that s. 73A was  enacted
\nto fill this gap and place the Union on parity with the
\n442<\/span>
\nemployer  so  as  to enable the Union to  have\tany  dispute
\nsettled by arbitration even when the employer does not agree
\nto  arbitration.  These provisions granting. the  rights  to
\nthe employers and the Union are, of course, in addition\t to,
\nand  without  prejudice\t to,  the  provisions  contained  in
\nsections  72  and  73  of the Act,  under  which  the  State
\nGovernment  is\tgiven  the power  to  refer  any  industrial
\ndispute\t between employees and employees, and employers\t and
\nemployees  to  the  arbitration of a  Labour  Court  or\t the
\nIndustrial Court on the basis of a report made by the Labour
\nOfficer, or even otherwise.  These provisions in sections 72
\nand  73\t leave the discretion with the State  Government  to
\nmake  a reference in appropriate cases, so that neither\t the
\nemployers  nor\tthe  employees can, as of  right,  obtain  a
\nreference  under these sections from the  State\t Government.
\nSo  far as they are concerned, the provisions  contained  in
\nthe Act require that the disputes between them must first go
\nbefore\ta  Conciliator for conciliation,  and  subsequently,
\neither\t party\tcan  exercise its  option  of  offering\t the
\nsubmission  of\tthe  dispute to\t arbitration  when  such  an
\nenquiry is made from them by the Conciliator under S.  58(5)
\nof the Act.  Thereafter, if the offer is by an employer, the
\nUnion,\tunder its rules, is bound to accept the\t submission,
\nso  that  whenever  an employer desires that  a\t dispute  be
\ndecided\t by arbitration, the Union is compelled to agree  to
\nit.   In the reverse case, when a Union wants submission  of
\nthe dispute to arbitration, the employer has discretion\t not
\nto  agree, and then only can the Union resort to S. 73A\t and
\nrefer the dispute to the Industrial Court.  This section, in
\nthese  circumstances did not at all require that  the  right
\ngranted to the Union should also be granted to the employer.
\nIn  this connection, two other points were urged by  learned
\n,counsel for the appellants before us.\tOne was that,  under
\nS.  66\tof  the Act, the offer to  submit  the\tdispute\t for
\narbitration can be to any private individual also, and\tthis
\ndid not give the right to the employer to have it decided by
\nan  Industrial Court so as to be equated with the  right  of
\nthe Union to have it decided by the Industrial Court. We  do
\nnot  think that the provision contained in S. 66 of the\t Act
\nplaces\tthe employer under any such handicap.  Under  sub-s.
\n(2) of S. 66, the employer can straight away offer that\t the
\ndispute\t be  referred to the arbitration of  the  Industrial
\nCourt,\tand  thereupon\t‘the Union would  be  debarred\tfrom
\nrefusing to agree to that submission.  In any case, even  if
\nthe  Union  were  to  refuse  to  agree\t to  it,  the  State
\nGovernment will determine under s.71 of the Act whether\t the
\ndispute should be referred to the arbitration of the  Labour
\nCourt  or  the Industrial Court and refer it to\t that  body.
\nThe  mere fact that the Union may not agree to .he offer  of
\nthe  employer to submit the dispute for arbitration  to\t the
\nIndustrial  Court whereupon the State Government can  direct
\nthat  the  arbitration\tbe made by a  Labour  Court  or\t the
\nIndustrial  Court  does\t not,  in  our\topinion,  place\t the
\nemployer in any disadvantageous position, and we do not
\n 443<\/span>
\nthink,\ttherefore, that there was any requirement  that\t the
\nemployer  should also be given a right corresponding to\t the
\nright of the Union under s. 13A of the Act.\n<\/p>\n
The  second point urged by the learned counsel was  that  if
\nthe  dispute  is  referred  to the  Industrial\tCourt  by  a
\nsubmission  under  s.  66(2) of the  Act,  that\t Court\twill
\nproceed to give its award in accordance with the  provisions
\nof  the Arbitration Act, 1940 in view of s. 68 of  the\tAct,
\nwhile if the dispute is referred at the instance of a  Union
\nunder s.73A of the Act, the Industrial Court will deal\twith
\nit  as\ta .judicial Tribunal and will give its\tdecision  in
\naccordance with the regulations made under s. 92 of the Act.
\nWe   consider\tthat   this  submission\t is   based   on   a
\nmisapprehension of the scope of s. 92 of the Act.  The rules
\nand regulations made by the Industrial Court under s. 92 are
\nto  govern  the\t procedure of the Industrial  Court  in\t all
\nproceedings before it irrespective of the fact whether those
\nproceedings  come  up before it by a reference made  by\t the
\nState  Government under. s, 72 or s. 73 of the Act, or by  a
\nreference made by the Union under s. 73A of the Act, or by a
\njoint  submission made by the parties under s. 66(2) of\t the
\nAct.   Section 68 of the Act is in very general\t terms,\t and
\nlays down that proceedings in arbitration under the whole of
\nthe  Chapter XI are to be in accordance with the  provisions
\nof  the\t Arbitration Act, 1940, in. so far as  they  may  be
\napplicable.   The  provisions of the Arbitration  Act  have,
\ntherefore, been made -applicable not only to arbitrations by
\nsubmission under s. 66 of the Act, but also to\tarbitrations
\non references made by the State Government under s. 72 or s.
\n73  or a reference made by a Union under s. 73A of the\tAct.
\nIf  the\t submission or the reference happens to\t be  to\t the
\nIndustrial Court, that Court must follow the and regulations
\nmade  under s.92, and the provisions of the Arbitration\t Act
\nwill only apply insofar as they may be applicable in view of
\nthose  rules  and  regulations.\t  Consequently,\t whether   a
\ndispute is referred for arbitration to the Industrial  Court
\nby  submission under s. 66(2) of the Act, or by a  reference
\nunder  s. 73A of the Act, that Court has to proceed  in\t the
\nsame identical manner and the parties seeking the  reference
\nobtain\t the   award   in   both   cases   under   identical
\ncircumstances.\n<\/p>\n
In  this connection, the regulations made by the  Industrial
\nCourt, known as the Industrial Court Regulations, 1947\twere
\nbrought to our notice.\tA perusal of these regulations shows
\nthat, in the matter of procedure of the Industrial Court for
\ndealing\t with arbitrations made by submissions under s.\t 66,
\nor  by references under other sections, there is  uniformity
\nand  no distinction is made between references\tunder  these
\ndifferent  sections.   The Industrial Court is\trequired  to
\nproceed\t in  the same manner in all cases and  to  give\t its
\ndecision under s. 87 of the Act.  It is significant that  s.
\n87,  defining  the  duties of  the  Industrial\tCourt,\tuses
\nidentical  language  in respect of all arbitrations  by\t the
\nIndustrial Court; under clause (v) the duty
\n444<\/span>
\nof  the\t Industrial  Court  is laid down  to  be  to  decide
\nindustrial  disputes  referred\tto  it\tin  accordance\twith
\nsubmissions  registered under S. 66 which provide  for\tsuch
\nreference  to the Industrial Court, and under  clause  (vi),
\nthe duty of the Industrial Court is similarly defined to  be
\nto decide industrial disputes referred to it under  sections
\n71, 72, 73 or 73A.  The’ Industrial Court, in all cases,  is
\nrequired  to give a decision on the dispute, and  hence,  in
\nall these proceedings, the parties have identical rights  in
\nthe matter of procedure of the Industrial Court of,  hearing
\nand  of obtaining a decision from it.  This makes  it  clear
\nthat  s. 73A of the Act was required only to fill up  a\t gap
\nwhich  would have existed, leaving no remedy to a  Union  to
\nobtain\tarbitration  of a dispute if the employers  did\t not
\nagree  to  that arbitration, and that no similar  right\t was
\nrequired  to  be conferred on the employers who,  under\t the
\nother provisions of the Act, could always obtain a reference
\nof  the dispute to arbitration by making a submission  under
\ns.  66\twhich the Union -was bound to agree to.\t  The  first
\npoint raised on behalf of the appellants has, therefore,  no
\nforce and s. 73A of the Act cannot be held to be invalid.
\nOn the second question, it has rightly been urged on  behalf
\nof the appellants that the Act was not applied by the  State
\nGovernment to the industries run by the appellants,  whether
\ngenerally  or  by specifying any local area by\tissue  of  a
\nnotification under sub-s. (4) of s. 2 of the Act.  On behalf
\nof the respondents, reliance was placed on sub-s. (3) of  s.
\n2  for\turging\tthat  the  Act\tbecame\tapplicable  to\t the
\nindustries  run\t by  the  appellants,  because\tthe   Bombay
\nIndustrial  Disputes Act, 1938 (hereinafter referred  to  as
\n“the  Bombay Act of 1938”) was in force in these  industries
\nimmediately before the commencement of the Act.
\nAdmittedly,  the Bombay Act of 1938 was made  applicable  to
\nthe entire cotton industry throughout the Province of Bombay
\nby various notifications issued in the year 1939 under\tthat
\nAct by the then Provincial Government.\tAhmedabad, where the
\nindustries  of the appellants are situated, was then a\tpart
\nof the Province of Bombay.  The Bombay Act of 1938 was never
\nentirely repealed.  However, the Central Government  enacted
\nthe  Industrial Disputes Act No. 14 of 1947  which  received
\nthe assent of the Governor General on 17th March, 1947, a id
\nwas  brought  into force from April 1, 1947.  This  Act\t did
\nnot,  in  terms,  repeal the Bombay Act\t of  1938,  but\t the
\ncontention  on behalf of the appellants is that\t the  Bombay
\nAct  of 1938 and the Central Industrial Disputes  Act,\t1947
\nboth  covered  the same field of  industrial  disputes,\t and
\nconsequently, it should be held that the Bombay Act of\t1938
\nbecame void on the ground of repugnancy with the  Industrial
\nDisputes  Act, 1947 under sub-s. (1) of section 107  of\t the
\nGovernment of India Act, 1935.\tIt was urged that the Bombay
\nAct  of\t 1938 as well as the Industrial Disputes  Act,\t1947
\nwere both enacted under the power conferred on
\n 445<\/span>
\nthe  Bombay  Legislature and the Central  Legislature  under
\nitem 29 of Part 11 of the Concurrent List III of the Seventh
\nSchedule  to  the  Government  of  India  Act,\t1935.\t The
\nprinciple  relied  upon by the appellants is  that,  if\t two
\npieces\tof legislation cover the same field and each one  of
\nthem contains a complete code making detailed provision\t for
\nall  aspects  of  the  subject-matter  of  the\tlegislation,
\nrepugnancy  must be held to arise, even though one  Act\t may
\nnot,  in  terms,  repeal the other and\tmay  not  correspond
\nsection\t by  section with the other.   For  this  principle,
\nreliance  was placed on the tests enumerated by Nicholas  in
\nhis  Australian\t Constitution,\t2nd  Edition,  p.  303,\t  to
\ndetermine  inconsistency or repugnancy between a  State\t law
\nand  a Commonwealth law in Australia.  The three tests\twere
\nenumerated as follows:-\n<\/p>\n
\t      “(1) There may be inconsistency in the  actual
\n\t      terms of the competing statutes;
\n\t      (2)   Though there may be no direct  conflict,
\n\t      a\t State\tlaw may be inoperative\tbecause\t the
\n\t      Commonwealth   law,  or  the  award   of\t the
\n\t      Commonwealth  Court,  is\tintended  to  be   a
\n\t      complete exhaustive code; and
\n\t      (3)   Even  in  the absence  of  intention,  a
\n\t      conflict\t may  arise  when  both\t State\t and
\n\t      Commonwealth  seek  to exercise  their  powers
\n\t      over the same subject matter.”\n<\/p><\/blockquote>\n
This  principle was deduced from the decisions in  Ex  Parte
\nMcLean(1)  and\tthe State of Victoria and  Others  ‘V.\t The
\nCommonwealth of Australia and OtherS(2).  Reliance was\talso
\nplaced\ton decisions of this Court in Zaverbhai\t Amaidas  v.
\nThe State of Bombay<\/a>(3), Ch.  Tika Ramji & Ors. v. The  state
\nof  Uttar Pradesh & Ors.(4) and Deep Chand v. The  State  of
\nUttar  Pradesh and Others<\/a>(5).  In the last of  these  cases,
\nafter  quoting from Nicholas, this Court  held:\t ‘Repugnancy
\nbetween two statutes may thus be ascertained on the basis of
\nthe following three principles:-\n<\/p>\n
\t      (1)   Whether there is direct conflict between
\n\t      the two provisions;\n<\/p><\/blockquote>\n
\t      (2)   Whether Parliament intended to lay\tdown
\n\t      an  exhaustive code in respect of the  subject
\n\t      matter   replacing  the  Act  of\t the   State
\n\t      Legislature; and
\n\t      (3)   Whether  the law made by Parliament\t and
\n\t      the  law made by the State Legislature  occupy
\n\t      the same field.”\n<\/p><\/blockquote>\n
\t      (1)   43 C.L.R. 472.\n<\/p><\/blockquote>\n
\t      (3)   [1955] 1 S.C.R. 799.\n<\/p><\/blockquote>\n
\t       (5) (1959] Supp. 2 S.C.R. 8.
\n\t      (2)   58 C.L.R. 618.\n<\/p><\/blockquote>\n
\t      (4)   (1956] 1 S. C. R. 393.\n<\/p><\/blockquote>\n
\t      446<\/span><\/p>\n
Relying\t on  these principles, it has been  urged  that\t the
\nIndustrial  Disputes  Act,  1947 intended  to  lay  down  an
\nexhaustive  code in respect of settlement of all  industrial
\ndisputes,  and since the Bombay Act of 1938 was also on\t the
\nsame subject, it must be presumed that the two statutes\t are
\nrepugnant,  so that the Bombay Act of 1938 became void\twith
\neffect\tfrom  1st April, 1947 when the\tIndustrial  Disputes
\nAct,  1947 came into force.  It has, however,  been  rightly
\npointed\t out by the High Court in the judgment under  appeal
\nthat the Bombay Act of 1938 did not confine itself  entirely
\nto  the\t subject  of  settlement  of  industrial   disputes.
\nChapter\t V of that Act, containing sections 26 to  33  deals
\nwith  a\t matter\t which\tis not\tcovered\t by  the  Industrial
\nDisputes Act, 1947 at all.  These sections of the Bombay Act
\nof  1938  lay. down the procedure for  prescribing  Standing
\nOrders -regulating the relations between an employer and his
\nemployees, and for making changes therein.  The\t prescribing
\nof the Standing Orders and making of changes in them may not
\ninvolve\t any  industrial dispute at all.  In  fact,  at\t the
\nfirst  stage,  when  Standing  Orders  are  prescribed,\t  no
\nquestion  would\t arise of any industrial  dispute  requiring
\nsettlement.   The  Industrial Disputes Act,  1947,  did\t not
\ncontain\t any provisions at all dealing with this subject  of
\nprescribing  Standing  Orders and  making  changes  therein.
\nConsequently,  even if the submission made on behalf of\t the
\nappellants  be\taccepted that the Industrial  Disputes\tAct,
\n1947,  is an exhaustive code dealing with the  question\t of,
\nsettlement of industrial disputes, only those provisions  of
\nthe Bombay Act of 1938 can be held to be repugnant and\tvoid
\non account of the repugnancy which also dealt with the\tsame
\nsubject\t matter of settlement of industrial  disputes.\t The
\nprovisions  contained  in Chapter V of that Act,  which\t had
\nnothing to do with  settlement of industrial disputes, could
\nnot, therefore, be affected   by   the\tenactment   of\t the
\nIndustrial Disputes Act, 1947, and hence,    the enforcement
\nof the Industrial Disputes Act, 1947 did not in\t  any\t way
\naffect\tthe applicability of the provisions of Chapter V  of
\nthe  Bombay  Act  of  1938  to\tthe  industry  run  by\t the
\nappellants.  To the extent that Bombay Act of 1938 contained
\nthese\tprovisions  in\tChapter\t V,  that  Act,\t  therefore,
\ncontinued  in  force  and also continued  to  apply  to\t the
\nindustries  now\t in question.  It was also  urged  that\t the
\nIndustrial Disputes Act, 1947 did  not, similarly, make\t any
\nprovision  for\tarbitration  of\t industrial  disputes\tand,
\nconsequently,  the  provisions of the Bombay  Act  of  1938,
\nrelating to arbitration of industrial disputes, could not be
\nheld to have become invalid.  It is not necessary to examine
\nthis further question in view of our decision that at 1 east
\nthe  provisions\t of  Chapter V of the  Bombay  Act  of\t1938
\ncontinued  in force.  That Act did not stand repealed  as  a
\nwhole; at best, only a part of that Act can be held to\thave
\nceased\tto be effective because of the repugnancy  with\t the
\nIndustrial  Disputes Act, 1947.\t But, while another part  of
\nthat  Act continued to be in force, the Bombay Act  of\t1938
\nalso  continued to be applicable to the cotton\tindustry  in
\nAhmedabad
\n447<\/span>
\nwith  which  we are concerned.\tWhen the  Bombay  Industrial
\nRelations Act, 1946 came into force on 29th September, 1947,
\ntherefore,  the Bombay Act of 1938 was applicable  to  these
\nindustries, and consequently, under sub-s. (3) of section  2
\nof  the Act, the Act became applicable to the  industry’  of
\nthe appellants and did not require a notification under sub-
\ns.  (4) of s. 2 to make it applicable.\tThis point was\talso
\ntherefore,  rightly decided against the appellants, and\t the
\njudgment  of the High Court must be upheld.  The appeal\t is,
\ntherefore, dismissed with costs.\n<\/p>\n
G. C.\t\t   Appeal dismissed-\n448<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ahmedabad Millowners’ … vs I.G. Thakore, President & Ors on 20 January, 1967 Equivalent citations: 1967 AIR 1091, 1967 SCR (2) 437 Author: V Bhargava Bench: Bhargava, Vishishtha PETITIONER: AHMEDABAD MILLOWNERS’ ASSOCIATION & ANR. Vs. RESPONDENT: I.G. THAKORE, PRESIDENT & ORS. DATE OF JUDGMENT: 20\/01\/1967 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-83155","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAhmedabad Millowners' ... vs I.G. 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