GABERIEL INDIA LIMITED Vs. STATE OF H P

JUDGEMENT

(1.) THERE was an industrial dispute between the petitioners and respondent No. 3 regarding slow down and lockout which has been referred for adjudication to the Labour Court, Shimla by order dated February 15, 1991 (Annexure P-4) passed by the respondent No. 1. Thereafter, proceedings before the respondent-Labour Court started. Issues based on the pleadings were framed and reference fixed for evidence of parties. On March 7, 1992, one Vinod Malhotra was to be examined as a witness in the case when the petitioners filed an application requesting that the issues be re-framed and issue No. 4 be decided as a preliminary issue. The respondent-Labour Court handed over copy of the said application to the respondent No. 3 for filing reply by the next date. The Labour Court did not examine Shri Malhotra on that date and fixed the case for April 4, 1992. Order passed in this behalf is Annexure P-9. It is at this stage that the petitioners rushed to this Court by filing the present writ petition and challenging not only the validity of order dated March 7, 1992 passed by the respondent-Labour Court (Annexure P-9), but also the validity of the reference made by the respondent-State Government.

(2.) HAVING heard the learned Counsel for the parties, we are of the view that the petition is devoid of substance.

(3.) AS regards validity of the reference, the only submission of the learned Counsel for the petitioners is that it does not mention Section 10 (1) of the Industrial Disputes Act, 1947 (referred to as "the Act' for short) and refers only to Section 12 (5) thereof and for that reason, it is illegal. The submission more particularly appears to be that Section 10 (1) being the only provision empowering the Government to make reference, its omission invalidates the reference. As regards law, there can be no doubt that Section 10 (1) is the only source of authority of the Government to make a reference. Section 12 (5) is the provision which enables the Government to consider whether to make a reference or not to make a reference and that too has to be done on the basis of the report received from the Conciliator. Once, however, the Government decides to make a reference, it has to resort to Section 10 (1) for the purpose as there is no other provision in that behalf in the Act. This, however, does not mean that mere omission of Section 10 from the order of reference would invalidate the reference order. In the instant case, the matter has been considered by the respondent-State under Section 12 (5) of the Act and the said fact is mentioned in the order of reference. It is, therefore, clear that the respondent-Government had lawfully decided to make a reference. What, however, is missing in the order of reference is Section 10 (1) of the Act. Order of reference has to be understood and interpreted objectively. It is the substance that matters and not the form. Mere omission of Section 10 of the Act would, therefore, not be of any consequence. Reference to decision of the Supreme Court in State of Bombay v. K. P. Krishnan, (1960-II-LLJ-592), is wholly inapt in the context of submission made in this Court. The aforesaid case clarifies the law on the subject and places it beyond any doubt that the reference can be made only under Section 10 of the Act and not under Section 12 (5) of the Act. The submission considered by the Supreme Court was that Section 12 (5) is an independent provision and can be resorted to by the Government for making a reference independently of Section 10 thereof. That argument was not accepted and it was held that Section 12 (5) is the power in the Government to consider the matter from the point of view of either making a reference to the Labour Court or not making such a reference. If in this process Government decides not to make a reference, it has to communicate its reasons for the same. If, however, it decides to make a reference, it has to rely on Section 10 of the Act to do so. In the instant case, Government has decided to make a reference and hence it must be assumed that the power under Section 10 (1) of the Act which is the only power available to the Government has been exercised. Mere non-mentioning of a particular provision in the order of reference would not, in our opinion, invalidate the reference.