Bhartiya Sulabh Shauchalaya Karmachari Sangh vs The State of Bihar and Others

S.K. Jha and Ashwini Kumar Sinha, JJ.—In this application under Articles 226 and 227 of the Constitution of India, the legality and validity of the Government notification dated 2nd February, 1983, as incorporated in annexure ''2'', are questioned. By the impugned notification, the order of reference made by the State Government u/s 10(1)(d) of the Industrial Disputes Act, 1947, under a notification dated 15th June, 1982, as incorporated in annexure ''1'', has been rescinded and the reference is withdrawn. If it were a matter of first impression there would have been some scope for argument by learned counsel for the parties. But as the law stands settled today by a decision of the Supreme Court in the case of The State of Bihar Vs. D.N. Ganguly and Others, the point is not res integra. Gajendragadkar, J., as he then was, speaking for the Supreme Court, in the aforementioned case, held that the Act does not expressly confer any power on the appropriate Government to cancel or supersede a reference made u/s 10(1) of the Act, nor can such power be claimed by implication on the strength of section 21 of the General Clauses Act. The rule of construction enunciated by section 21 of the General Clauses Act in so far as it refers to the power of residing or cancelling the original order cannot be invoked in respect of the provisions of section 10(1) of the Industrial Disputes Act. That is, therefore, the end of the matter. The application must succeed on this ground alone.

The impugned notification, as contained in annexure ''2'', is, accordingly, quashed and the application is allowed but, in the circumstances of the case, we shall make no order as to costs. Mr. Tara Kishore Prasad, learned counsel for the contesting respondents, tried his best to persuade us to take a more progressive view of the matter, since after the year 1958 much water had flown down the Ganges. We are unable to be persuaded to this point of view as we are, in law, bound hand and foot by the decision of the Supreme Court. He next contended that when the matter goes to the Industrial Tribunal, Patna, the Tribunal may be directed to dispose of any preliminary objection on the question of legality which the contesting respondents may seek to raise there. In this regard all that we can say is that when the matter is taken up by the Tribunal it shall apply its mind to the question as to whether any preliminary point of law can decide the controversy once for all before going into the merits of the case. But it shall depend upon the judicial discretion of the Tribunal and we make no direction in that regard.