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TMI Blog1960 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... vinces in exercise of the powers conferred on him by cl. (b), (c), (d) and (g) of section 3 and by s. 8 of the U. P. Industrial Disputes Act, 1947. The application after stating that a number of thefts of Dhoties had taken place in the Mill further stated that it was obvious to the management of the J. K. Cotton Spinning and Weaving Mills Co., Ltd., that this state of affairs could not exist and continue if Watch and Ward staff were carrying out their duties vigilantly, correctly and honestly. It stated further that the management having lost confidence in the honesty of the Watch and Ward Staff had decided to terminate the services of all the per. sons of the Watch and Ward Staff and to recruit fresh men from the employment exchange and that in lieu of notice of termination of service the management would pay to these persons 12 days' wages in accordance with Standing Order No. 17A. The prayer made in the application was that "the Board be pleased to record the award entitling the J. K. Cotton and Weaving Mills Co., Ltd., to terminate the services of all the members of the Watch and Ward Staff whose names appear in Annexure A". During the pendency of the application before the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. Mr. Justice Chaturvedi, before whom this application came up for hearing held that the application under cl. 5(a) was maintainable and the Appellate Tribunal had erred in holding otherwise. Being however, of opinion that there had been undue delay in making this application for a writ, he dismissed the petition on that ground. In the Letters Patent appeal preferred by the company against this decision a preliminary objection was raised on behalf of the Union representing the workmen that the Allahabad High Court could not call for the records and quash the order of the Labour Appellate Tribunal of India as those records were in Calcutta and consequently beyond the reach of the Court. The learned Judges who heard the appeal upheld this objection and dismissed the appeal. They however issued a certificate under Art. 132(1)and Art. 133(1)(c) of the Constitution. Thereafter the company also obtained special leave from this court to appeal directly against the order of the Labour Appellate Tribunal of India. These two appeals preferred -one on the certificate granted by the High Court and the other on the strength of the special leave granted by this Court, have been heard together. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 23 which is in these words:- "Save with the written permission of the Regional Conciliation Officer or the Additional Regional Conciliation Officer concerned, irrespective of the fact whether an inquiry is pending before a Regional Conciliation Board or the Provincial Concilia- tion Board or an appeal is pending before the Industrial Court, no employer, his agent or manager, shall during the continuance of an inquiry or appeal, discharge or dismiss any workman." Section 24 provides that every order made or direction issued under the provisions of this Government order shall be final and conclusive. Clause 26 provides for penalties for contravention or an attempt to contravene any of the provisions of the order. A consideration of the scheme of this legislation makes it clear that while two modes are provided in clauses 5(a) and 5(b) for the commencement of proceedings for settlement of industrial disputes generally, a special provision is made in clause 23 that if an enquiry is proceeding before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal is pending before the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent orders-first to November 15, 1949 and then to March 31, 1950, again to June 30, 1950 and thereafter to September 30, 1950. It is true that at the time these orders extending time for submission of award were made the Governor had no authority to make these orders and these orders were invalid. They were validated by the provisions of s. 3 of the U.P. Act XXIII of 1953. In view of this position of the law the learned Attorney-General has not disputed that on June 13, 1950 when the application under cl. 5(a) was made an enquiry was actually pending before a Conciliation Officer. Consequently, before the management could make any order discharging or dismissing any of its workmen it was required by cl. 23 to obtain permission for the same from the Regional Conciliation Officer. The question is whether in spite of this provision in cl. 23 the employer could make and the Board entertain an application under cl. 5(a) on this question of proposed dismissal. We propose to consider this question first and for that purpose assume that an industrial dispute comes into existence as soon as the employer decides to dismiss his workmen and proposes to do so and that ordinarily he can mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke this which defeats the intention of the rule making authority in cl. 23 must, if possible, be avoided. It is hardly necessary to mention that this rule in cl. 23 was made with a definite purpose. The provision here is very similar to s. 33 of the Industrial Disputes Act before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under cl. 5(a) in the very cases where cl. 23 in terms applies. There will be complete harmony however if we hold instead that cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of cl. 23. We reach the same result by applying another well-known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under cl. 5(a) filed on June 13, 1950 was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed. As we have already pointed out above the order made by the appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be reached by any writ of the Allahabad High Court. In view of our conclusion that the application under cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Court's order must also be dismissed. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same. Both the appeals are accordingly dismissed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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