STRAWBOARD MANUFACTURING CO., LTD. versus GUTTA MILL WORKERS UNION

S.C.R. SUPREME COURT REPORTS

439

STRA"WBOARD MANUFACTURING CO., LTD. v. GU'rTA MILL \VORKERS' UNION. THE STATE OF U. P.: INTERVENER.

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195:!

Dec. 17,

[MEHR CHAND MAHAJAN, DAS and BHAGWA'l'I JJ.]

. U. P. Industrial Dispntes Act, 1947, s. G-U. P. General Clauses Act, 1904, ss. 14, 21-lndustrial Dispide-Reference Power to e:ctend time for mxkinJ award-Award made after time Validity-Subsequent extension of time-Effect.

On February 18, 1950, the Governor of Uttar Pradesh refer red an industrial dispute to the Labour Commissioner or a person nominated by him with the direction that the award shonld be submitted not later than April 5, 1950. The award, however, was m.ade on April 13, and on April 26, the Governor issued a notification' extending time for making the award up to April 30:.

the

Held, (i) in view of the language of s. 6 of the U .· P. Industrial Disputes Act, 194 7, anc1 in the absence of a provision like that contained in the proviso tor. 16 of the Governor's rrotification dated :lfarch 15, 1951, the State Government had no authority what ever to ex tend the time, and the adjudicator became fnnctus officio on the expiry of the time fixed in the originn,l order of refer ence and the award was therefore one made without jnrisdiction and a nullity.

(ii) Section 14 of the U. P. General Clauses Act, 1904, did not in terms or by necessary implication give any s'uch power of e~teusion of time to the State Government.

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(iii) Though the order of April 26 did ex facie purport to modify the order of Februn,i:y 18, in view of the absence of any distinct provision in s. 21 of the 'C. P. General Cln,uses Act, 1904, that the power of amendment and modification conferred on the State Government may he so exercised as to lrnve retrospective opera· tion, the order of April 26, viewed merely as an order of amend ment'or modification, cannot, by virtue of s. 21, have retrospective effect.

Baja Har Narain Singh v. Chmu]hrai11 Bhagwant Kuar (L.R.

18 I.A. u5) applied.

Jetha Lal Lakshmi Chand Shah v. Amrita. Lal Ojha (I.L.R. [1938] 2 Cal. 482), Lord v. Lee (L.R. 3 Q.B. 404), Dentron v. Strong (hR. !J Q.B.117), Mny v. Harconrt (L.R. 13 Q.B.D, G88) distin guisliocl.

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440

SUPREME COUR'l' REPORTS

[1953]

j

CrvIL APPELLATE

195~ Strawboard Manufacturing Order dated 20tb November, 1950, of

JURISDICTION: Civil Appeal .Judgment and tbe JJabour Co., Ltd. Appellate Tribunal, Lucknow, in Appeal No. 10 of

.No. 134 of 195 l. Appeal from tbe

v. Gutta J.fill

1950.

!Vorker1' Union. Bakshi Tele Chand and Veda Vyasa (S. R. Kapur,.

with them) for tbe appellants.

Sha1tka.t Hussain for the respondent. Bishen Singh for the intervener.

1952. December 17. The Judgment of the Court

was delivered by

DAS J.-'fhis appeal has been filed with the special leave granted by this Court on May 10, 1951. By the order granting such leave the appeal has been restricted to one point only, namely, "whether the GoYernment of Uttar Pradesh had the power to extend the time for making the award ex post facto, i.e., after the time limit originally fixed therefor had ' d ,, expire .

There is no dispute 'as to the facts. An industrial dispute having arisen between the appellant com pany and its employees, by Labour Department Notification No. 637 (S'r)/XVIII-53 (ST)/50 dated February ,18; HJ50, the Governor of Uttar Pradesh was pleased, in exercise of the powers conferred by section 3 read with section 4 of the U. P. Industrial Disputes Act, 1947 (U. P. Act No. XXVIII of 1947), to refer the said dispute to the Labour Commissioner, U. P., or a Conciliation Officer of the State Govern ment nominated by him for adjudication on seven several issues specified therein and to direct the adjudicator to conclude the adjudication proceedings and submit bis award to the Government not later than April 5, 1950. 'l'he Labour Commissioner by letter No. I.M.R. 14-A nominated Shri M. P. his Vidyarthi. Regional Conciliation Officer, U. P., as the adjudicator in the above dispute with a direction that he shonld submit his award by March 25, 1950, 11nd that if the proceedings were not likely to be

S.C.R. SUPREM~ COURT RE1POR1S

441

I952

Das J.

Strawboard

co., Ltd. v. Gutta, M"iU

completed within that time he should move the Government for extension of time at lea'lt a week be- fore the specified date. By Notification No. 897 Manuf.icturing (ST)/XVIII-53 (S'r)/50 dated March 2·0, 1950, th"e Governor was pleased to order that the adjudicator should also adjudicate on an additional issue formul- ated therein. By a further Notification No. 950 Workers Unio,.. (ST)/XVIII-53 (ST)/50 dated March 24, 1950, the Governor was pleased to refer another additional issue for the decision of the adjudicator. The ad judicator did not make his award on or before April 5, 1950, as directed by the first order of reference but made his award on April 13, 1950, that is to say, 8 days after the expiry ·of the time originally fixed for the making of the award. About thirteen days after the delivery of the award Labour Department Notification No. 1247 (ST)/XVIII-53 (ST)/50 was issued on April 26, 1950, whereby the Governor was pleased, in exercise of powers conferred by section ~ read with section 4 of the Act. to allow the adjudi- cator in the said dispute to submit his award by April 30, 1950. Thereafter by Notification No. 1447 (ST)/XVIH-53(ST)/50 dated August 1, 1950, the Governor was pleased, in exercise of powers con- ferred by section 6 (2) read with sections 3 and 4 of the Act, to order that the award be enforced for a period of six months from the date of that order in the first ins.tance and thereafter for such further period as might be prescribed.

On August 17, 1950, the appellant company pre ferred an appeal against the award to the Labour as Appellate Tribunal c.ontending, follows:-

inter alia,

"That the award dated April 13, 1950, is vitiated, having been given after the expiry of the time limit. (a) In its order dated Februa,ry 18, 1950, para. (5), Government directed the adjndicator to conclude the proceediugs and submit his a.ward not later than the 5th April, 1950. The award is dated 13th April, l950. The Government, however, tried to remedy

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442

SUPREME COURT REPORTS

fl953j

1952

this defect by the issue of G.0. No. 1247 (ST) Stra,,·board XVIH-53 .(S.1')/50 dated.April 26, 1950,. but under ,1rannfaotur'ing the law this IS of no avail. To be a valid ex.tension ol' date granted to the adjudicator, Government order should have been issued before the 5th April, 1950, to keep the authority of the adjudicator alive. Work~,., Un.an. On the da.te the adjudicator made the award, i.e., 13th

co., Ltd. v. Gutt~ u,zz Das-;.

April, 1950, be bad no power to make a.n award."

The App&llate Tribunal by its decision given on November 20, 1950, dismissed the a pp ea! with the the point mentioned following observations on above.

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. the time limit originally fixed,

"With regard to the last point our view is that as the Government had the authority under section 6 of the Act to fix time limit for submitting an award it bad also the necessary and incidental power to extend if it considered it necessary. The first proviso to section 3 empowers the Provincial Government to add more matters for adjudication. It is obvious that additions to the matters already referred to would or may take more time than what had been originally estimated, and so it may lead to an impossible position if the Govern ment bad no power to extend the time originally fixed by it, and it makes no difference, in our opinion, whether the time is extended before or after the expiry of the time originally limited."

'l'be present appeal is against that ·decision of the Appella.te Tribunal but limited to the question hereinbefore mentioned.

Dr. Tek Chand appearing in support of this appeal urges that the adjudicator derived his authority under the order made by No.tification No. 637, dated February 18, 1950. Section 6 (1) provides that the adjudicator "shall, within such time as may be specified, submit its award to the State Government." The time specified by the order was" not later than April 5, 1950." On the expiry of that time the adjudicator became functus officio an.a had no power 9r authority to make the award. It 1s tr!fe that two

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S.O.R.

StJPR:8ME COURT R:EiPOR'rs

443

19611

v.

Das J.

Co., Ltd.

Strawboa,rd

more issues were, by the two subsequent orders, added to the list of issues to be determined by the adjudi- cator but those issues, Dr. Tek Chand submits, did Manufactu,.inrJ ii:i.to fatts not involve any detailed investigation necessitating any further time for making the award. lJearned counsel contends that the U. P. Act under Gutta Mill considerati9n has no provision empowering the State Woricer!_Un·ioii. Government to enlarge the time for the making of In the circumstances, the award by the adjudicator. if the State Government took the view that the addition of those two issues would render the time specified in the original order inadequate for the pur- pose it should have cancelled the previous notifica- tion and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award. The State Government did not adopt that course. · What it purported to do was to extend the time for making the award not only after the time originally fixed had expired but also after the award had actually been submitted. 'l'he argument is that even assuming but not admitting that the. State Govern- ment had the power to extend the time before the time had expired it certainly had no power to do so after the award had been made, for it was meaning- less, urges Dr. Tek Chand, to extend the time to do an act which had already been done. He refers us to the decision of the Judicial Committee in RnjnHar Narain Singh v. Ohaudhmin Bhagwant Ku.nr(1) where it was held that under the Code of Civil Procedure of 1882 the Court had no power to extend the time for making the award after the award had been filed. Section 514 of that Code enabled the Court to g11ant a further. time and from time to.time to enlarge the period for the deli very of the award but section 521 provided that no award shall be valid unless made within the period allowed by the Court.- Their Lordships of the Privy Council took the view that it would not have been competent for the Court to extend the time after the award had been made, for once the award was made

\I) L.R. 18 !.A. 55; 13 All.JOO

444

SUPREME COUR'I' REPORTS

[1953]

1952

Das J.

Co., Ltd. v. Gutla Mill

and delivered the power of the Court under section Strawboa,·d 514 was spent and that although the Court had the Manufacturing fullest power to enlarge the time under that section as lottg as th'e awa:'rd was not completed it no longer pos- sessed any such power when once the award was made. In order to give full effect to section 521 the Judicial Work<>>::'._Uni0>» Committee had to confine the exercise of.the power to extend the time given to the Court by section 514 to a point of time before the awar'd had been made. 'l'his decision was relied upon by Mr. Justice Harring ton sitting singly on the Original Side of the Calcutta High Court in Shib Krishna Dawn & ·co. v. SrLtish Chander Dutt(') which was a case governed by the Code of 1908. The learned Judge overlooked the fact that paragraph 8 of the Second Schedule to the Code of 1908 which corresponded to section 514 of the Code of 1882 expressly conferred power on the Court to allow further time and from time to time, .either before or after the expiration of the period fix ed for the making of the award, to enlarge such period and 'that paragraph 15 which corresponded to section 521 of the Code of 1882 contained no provision that an award made out of time was ipso facto invalid and that consequently the reasoning underlying the decision of the Judicial Committee iu the case of Raja Har Narain Singh v. Chaudhrain Bhagwant Kitar (") had no application to the case before him, which was governed by the Code of UJ08. Having regard to the difference in the language of the relevant provi sions of the two Codes, the correctness 0f the deci sion of Harrington J. was doubted by Mr. Justice Chitty also sitting singly on the Original Side of the Calcutta High Court in Sri Lal v. Arjitn Das('). Eventually the decision of Mr. Justice Harrington was dissented from by a Division Bencq of the same High Court sitting in appeal from the Original Side in Jetha Lal Laxmi Chand Shah v. Amrita Lal Ojha('), which held that the Court had power to enlarge the time for making t'he award even after the award had

(r} I.L.R. 38Cal.522. \2) 18 I.A. 55.

f3) 18C.\V.N. 1325. 141 l.L R. [1938] 2 Cai. ,s,; 42 r.w.x. ss3•

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S.C.R. SUPREME COURT REPOR'rS

445

1952

DaaJ.

Strawboard

co., Ltd. v.

ac.itually been made. The learned Judges in the last mentioned case referred to and relied on the case of Lord v. Lee(1).' Reference has also been made by Manufacturing learned· counsel for the respondents to Dentron• v. ) and to May v. Harcourt( 3 ). It will be noticed Strong( 2 that all those English cases were decided under section Gutta Milt 15 of the Common Law Procedure Act. 1854 (17 & 18 Workers' Uilion. Vic, c. 125). It is true that in that English statute there was no provision similar to section 521 of our Code of 1882 which was noticed by the Privy Council in the case cited by Dr. Tek Chand; nevertheless section 15 of the English statute like section 514 of the Code of Civil Procedure of 1882 corresponding to paragraph 8 of the Second Schedule to the Civil Procedure Code of 1908 and like section 9 of the English Arbitration Act, 1889, corresponding to sec- tion 12 of the Indian Arbitration Act, 1899, empower- ed the Court, from time to time, to enlarge the time for making the award. There is a similar provision for enlargement of time· in section 148 of our Civil Procedure Code of 1908. There is, however, no similar provision in the U. P. Industrial Dis- putes Act, 1947. Section 6(1) of that Act per requires the adjudicator to submit his emptorily award to the State Government "within such time as may be specified" and not "within such time as may from time to time be specified." It is significant that the State Government the only occasion when can, under the U. P. Act, specify a fresh period \ of time is when it remits the award for reconsideration under sub-section (2) of section 6, for under sub section· (3) the adjudicator is enjoined to submit his award, after reconsideration, within such period as may be specified by the State Government. Even in this case, under section 6(2) and (3) the State Govern ment may in the order remitting the award specify a time within which the award, after reconsideration, must be filed. 'rhis gives power to the State Govern ment to fix a fresh period pf time to do a fresh

(r) (r868) L.R. 3 Q.B. 404. (2) (1874) L.R. 9 Q.B. rr7.

(3) L.R. 13 Q. B,D, 688.

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446

SUPREME COURT REPORTS

[1953]

,1902

Das J.

v. Gutta Mill

Strawboard award.

act, namely, to reconsider and file the reconsidered It does not give .the State G?v.ernment any Manufacturing power to enlarge the time fixed ongma.lly, for the Co., Ltd. m1tial makmg of the award. Therefore, except where the State Government under section 6 (2) remits the award for reconsideration it has no power even to TVork"~"' 0"· specify a fresh period of time and much less a power to extend the time for the initial making of the award under section 6 (1). In exercise of the powers conferred by clauses (b),.(c), (d) aud (g) of section 3 and section 8 of the U. P. Industrial Disputes Act, 1947, the Governor was pleased to make an order embodied in Notification No. 615 (L T")/X V III-7 (J"L)-1951, dated March 15, 1951. The proviso to rule 16 of that order authorised the State Govern ment to extend from time to time the period within which the Tribunal or the adjudicator was to pro nounce the decision. 'l'hese rules were, however, not in force at the time material to the case before us. Learned counsel appearing for the respondent and for the State of Uttar Prauesh have not referred us to any similar rule which was in force in 1950. In view of the laugua,ge of section 6 of the U. P. Act and in the absence of a rule like the pro viso to rule 16 referred to ab.ove it must follow that the State Government had no authority whatever to extend the time and the adjudicator became fimctus officio on the expiry of the time specified iu the origi nal order of reference and, therefore, thenward which had not been made within that time must be helil to be without jurisdiction and a nullity as contended by Dr. Tek Chand.

Learned counsel for the respondents refers us to the provisions of section 14 of the U. P. General Clauses Act, 1904, which provides that where by any Uttar ·Pradesh Act auy power is conferred on the State Government then that power may be exer cised from time to time as occasion requires. Sections 3 and 4 of the U. P. Industrial Disputes Act, 1947, certainly confer power on the State Govern ment to refer disputes to an adjudicator for decision

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S.C.R. SUPREME COURT REPORTS

447

Das J.

is enjoined

1952 Strawboard

the adjudicator

Co., Ltd, v. Gutt~Mil~

and section 6 (1) may be read as empowering the State Government to specify the time within which the adjudicator to whom an industrial dispute is Manufacturing to submit his award. referred for adjudication is The combined effect of section 14 of the U. P. General Clauses Act and section 6(1) of the U. P. Industrial Disputes Act, 1947, it is contended, is Workers Union. to submit his that report "within such time as may from time to time be specified" and that this being the position, the prin- ciples laid down in the English decisions referred to above must be held to be applicable to the present case. We are unable to accept this line of reason- ing. Under section 14 of the U. P. General Clauses Act the the State Government may exercise power conferred on it by sections 3, 4 and 6, that. is to say, it can from time to time make orders referring disputes to an adjudicator and, whenever such an order of reference is made, to specify the time within which the award is to be made. This power to specify the time does not and indeed cannot include a power to extend the time already specified in an earlier order. The legislative practice, as evidenced by the provisions of the different statutes referred to above, is to expressly confer the power of extension of time, if and when the legislature thinks fit to do so. There is no question of any inherent power of the Court and much less of the Executive Government in this behalf. Section 14 of the U. P. General Clauses Act does not in terms, or by necessary implica- tion, give any such power of extension of time to the State Government and, therefore, the respondents can derive no support from that section.

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Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U. P. General Clauses Act, J 904, and contends that the order of April 26, 1950, should be taken as an amendment or modification, within the mean ing of that section, of the first order of Febru It is true that the order of April 26, ary 18, 1950. i950, does ex faoie purpor~ ~Q modify ~he order qf ·

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448

SUPREME COURT REPORTS

[1953]

b

d

d

d

19°2

Workers' Union. cannot" by virtue of section 21, h:i.ve that effect.

February 18, 1950, but, in view of the absence of any distinct provision in section 21 that the power of · I d'fi Straw oar Ma ufacturing amen ment an mo 1 catwn conferred on the State · Gtvernment may be so exercised as to have retrospec- ~o., Ltd. tive operation the order of April 26, 1950, viewed v. Gutta .~fill merely as an order of ainendment or modification, If, therefore, the amending order operates prospectively, i.e., only as from the ate oft e order, it cannot valid- ate the award whic.h had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was functus officio and had no jurisdic tion to act at all. \Ve do not think the respondents can derive any support from section 21 of the U. P. General Clauses Act.

- Das J,

d

h

0

The result, therefore, is that this appeal must be allowed and the award must be declared to be null and void and we order accordingly. In the circum stances of this case we make no order as to costs.

Appeal allowed.

Agent for the appellant : Ganpat Rai. Agent for the respondent: S. D. Sekhari. Agent for the intervener: 0. P. Lal.

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1952

Dec. 22.

ANGLO-FRENCH TEXTIT~E CO., LTD. v. COMMISSIONER OF INCOME-TAX, MADRAS.

[MEHR CHAND MAHAJAN, DAS, VIVIAN BOSE and BHAGWATI JJ.]

India>! Income·tax Act (XI of 19e2), ss. 24 ( 2), 84-Return shoiving loss- lVhether loss can be recorded and carried forward Proceedings fo1· re-assessment-Whether whole a.ssess·ment can be re opened .

. .\n assessee submitted a return showing the income as l<nil" In the

~nd this return was accepted by the Income-tax Officer.