P L D 1957 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑

This is an appeal, by special leave of this Court under Article 160 of the Constitution, from the award of an Industrial Tribunal directing the re instatement of 45 dismissed workmen and declaring them to be entitled to wages. The appellant employer is a company registered in Pakistan under the name of Remington Rand of Pakistan Ltd. and carrying on business as agent for the Remington Rand Corporation of America. Sami, one of the employees of the Company, who was working as Divisional Accountant, was dismissed by the Company for alleged insubordination on 13th February 1956. On 20th February, the Company received a notice from the Remington Rand Employees' Union demanding re‑instatement of Sami and threatening a strike in the alternative. On 23rd February 1956, the Union served on the Company a notice of strike, again demanding re‑instatement of Sami and full wages and salaries for the employees if they went on strike. The strike commenced on 24th February 1956, and on the same day the Company served on the 45 striking employees a notice requiring them to resume work and intimating that if they failed to do so, their services would be terminated. The employees not heaving resumed work their services were terminated on 27th February 1956. By Notification No. L. R. 25 (14)/56, dated the 3rd April 1956, the Central Government under subsection (1) of section 10 of the Industrial Disputes Act, 1947, referred the dispute between the Company and its employees to an Industrial Tribunal consisting of Mr. Mansur Alam for adjudication, and prohibited the continuance of the strike or the lock‑out under subsection (3) of that section. The issues referred to the Tribunal were mentioned in a Schedule to the Notification and were: "(1) whether the management is justified in terminating the services of Mr. M. A. Sami, an employee of the Company?" "(2) whether the strike resorted to by the employees of the Company, with effect from 24th February 1956, till the date of the issue of this Notification, is legal? If the reply of the Tribunal is in the affirmative, are the workers entitled to pay for the period of strike ?" "(3) whether the management is justified in terminating the services of its forty‑five employees on 27th February 1956, as they failed to join work even after due warning? If the reply of the Tribunal is in the negative, then are these employees entitled to re‑instatement with the Company or the contractor to whom contract has been given by the Company?" The Tribunal, after investigation of the dispute, sub mitted its award to the Central Government who published it as required by section 17 and directed it under section 15 to be binding on the parties for one year. The Tribunal found that the dispute relating to the termination of the services of Sami was not an industrial dispute which could be referred to it because Sami was not a workman but only an executive; that the strike was legal but not justified; and that the Company was not justified in terminating the services of the employees on 27th February 1956, because on that date conciliation proceedings were pending before the Conciliation Officer, and the strike being legal, the Company could not dismiss the striking employees. It has not been disputed before us that in proper cases this Court has the jurisdiction to grant special leave to appeal from the award of an Industrial Tribunal. In Civil Appeal No. 14 of 1957 (Muhammad Saeed and others v. Election Petitions Tribunal and others (P L D 1957 S C (Pak.) 91) we have discussed at length the scope of Article 160 of the Constitution under which appeals by special leave can be brought to this Court from the judgments, decrees, orders or sentences of Courts and tribunals. For the reasons given in the judgment in that case, this appeal must be held to be competent because under subsection (2) of section 15 of the special Act the Govern ment has no alternative but to declare the award of the Tribunal to be binding. The award in dispute must therefore be held to be a judgment or order of the Industrial Tribunal by which the Company's property and its legal rights to B employ or dismiss servants have been affected. Under section 11 of the Industrial Disputes Act the Tribunal has to follow such procedure as may be prescribed by the rules and any member thereof may, for the purposes of inquiry into any dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates. It has the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely: (a) enforcing the attendance of any person and examin ing him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be pres cribed; and every inquiry or investigation by it shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the P. P. C., and every member of it shall be deemed to be a public servant within the meaning of section 21 of the P. P. C. Under the rules framed by the Central Government in exercise of the rule‑making power conferred on it by the Act, the Tribunal is competent to administer an oath and to accept, admit or call for evidence at any stage of the pro ceedings before it and in such manner as it may think fit. The inquiry before it begins when at the first sitting the Chairman requires the parties in such order as he may think fit to state their respective cases. If without good cause shown, any party to the proceedings before it fails to attend or to be represented the Tribunal may proceed ex parte. The Tribunal also has the power to enter any buildings, factory, workshop or other place or premises whatsoever and inspect the same, any work, machinery or appliance or article therein or interrogate any person therein in respect of anything situated therein or any matter relevant to the subject‑matter of the investigation, inquiry or adjudication. And apart from the powers conferred on it by subsection (3) of section 11 of the Act, the Tribunal has the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying all suits, in respect of the following matters, namely: (a) discovery and inspection; (b) granting adjournments; and (c) reception of evidence taken on affidavit. Further the Tribunal may summon and examine suo moto any person whose evidence appears to it to be material, and it is to be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Criminal P. C. The proceedings before it are to be held in public unless it directs a witness to be examined in camera, and the representatives of the parties appearing before it have the right of examination, cross examination, and re‑examination and of addressing the Tribunal when all evidence has been called. All questions arising for decision at any meeting of the Tribunal, where the Tribunal consists of more than one person, have to be decided by a majority of the votes of the members thereof, the Chairman having a casting vote in the event of any equality of votes. Any party to a reference may be represented before it by its permission by a legal practitioner and a party appearing by a representative is bound by his acts. It will be apparent from this statement of the powers and functions of an industrial Tribunal. (1) that the Tribunal is required to adjudicate on rights which may affect property, and on the master's right to employ and dismiss servants and the servant's right to leave his employer's service, as well as on the liabilities arising from these rights; (2) that the Tribunal has most of the indicia of a Court because: (i) it is competent to take evidence on oath; (ii) the parties are entitled to state their cases, to examine cross‑examine and re‑examine witnesses and to be represented by legal practitioners; and (iii) the Tribunal makes an award which affects legal rights and liabilities, and which the Government is bound to publish and to declare to be binding. Thus the Tribunal exercises judicial powers of the State and therefore its award is liable to correction by this Court by granting special leave to appeal to the party aggrieved under Article 160 of the Constitution. The validity of the reference of the present dispute under section 10 of the Industrial Disputes Act, 1947, is challenged on the ground that the Central Government, which made the order of reference, is not the "appropriate Government" for the purpose within the meaning of that section, and the definition in section 2 (a) of the Act. The definition reads as under:‑‑, "(a) "appropriate Government" means‑ (i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, by a railway company operating a Federal Railway or in relation to an Industrial dispute concerning a mine, oilfield, or a major port, the Central Government, and (ii) in relation to any other industrial dispute, the Pro vincial Government"; It is quite clear that the present dispute does not fall under the first sub‑clause. Therefore, in order that the reference should be valid, it must be shown that the Central Government is the Provincial Government for the relevant purpose, in relation to the Federal Capital, viz., Karachi. In a recent case; that of Zahid Hussain (P L D 1956 F C 58) the late Federal Court had occasion to consider a similar question raised concerning the grant of sanction by the Chief Com missioner of Karachi, to the prosecution of Zahid Hussain, before a Special Judge acting under the Pakistan Criminal Law (Amendment) Act, 1948. At the material time, Karachi as an administrative unit, had the status of a Chief Commis sioner's Province, by virtue of an Order of the then Governor General, No. IV of 1952. In October 1955, however, there was enacted the Establishment of West Pakistan Act, by section 2 of which, Governor‑General was enjoined to declare by public notification that as from a date to be specified in the notification, certain territories should be incorporated into a new Province of West Pakistan. Among these territories the Capital of the Federation was included, but it was provided, by subsection (2) of the same section, that despite the integration, the Capital of the Federation "shall be administered in accordance with the provisions of section 290‑A of the Government of India Act, 1935". It appears that by an oversight, there was included in the First Schedule, which contained a catalogue of amendments to the Government of India Act, 1935, the following item.‑ "Section 290‑A‑The section shall be omitted." The integration was brought into effect on the 14th October 1955. On the 13th October, an Act was passed amending the Government of India Act, 1935, which inter alia inserted a fresh section 290‑A in that Act, by means of a section which reads as follows:‑ (9) Notwithstanding the omission of section 290‑A of the Government of India Act, 1935, from the appointed day by the First Schedule to the Establishment of West Pakistan Act, 1955, the following section shall be inserted in the Government of India Act, 1935, on and from the fourteenth day of October 1955, namely:‑ "290‑A.‑(1) Except in respect of matters relating to High Court, the provincial Legislature shall have no power to make laws in respect of the Capital of the Federation. (2) The Governor‑General may by order make, in respect of the Capital of the Federation, such provisions‑ (a) for its government and administration; (b) for varying the composition of the Legislature of the Province affected thereby and the representation in the Federal Legislature of that Province ; (c) with respect to the laws which are to be in force in the area ; (d) with respect to the expenses or revenues of any Court theretofore exercising the jurisdiction of a High Court in the area ; (e) with respect to apportionments and adjustments of, and in respect of, assets and liabilities ; and (f) with respect to other supplemental, incidental and consequential matters ; as he may deem necessary or proper. (3) Governor‑General may by order alter, amend or modify any order made under this section. (4) the executive authority of the Federation extends to the Capital of the Federation and any order made under this subsection may be controlled or superseded by an Act of the Federal Legislature, which shall have also power to make laws for the Capital of the Federation with respect to matters enumerated in the Provincial legislature List, other than matters relating to High Court. (5) An order made under this section may authorise expenditure from the revenues of the Federation." It is unnecessary to consider whether, by this provision the effect was created that the Federal Capital administration became a "Provincial Government" within the meaning of section 2 (a) of the Industrial Disputes Act, 1947, because on the 23rd March 1956, section 290‑A was repealed along with all other sections of the Government of India Act, 1935, by virtue of Article 221 of the Constitution of the Islamic Republic of Pakistan. But it is of importance to note that with the inclusion of the Capital of the Federation in the Province of West Pakistan, the Chief Commissioner's Province of Karachi ceased to exist. The area being one of the "specified territories" in the Establishment of West Pakistan Act, 1955, by virtue of section 4 of that Act, all references in any laws or public notifications to the Federal Capital, "shall be construed as a reference to the Province of West Pakistan." That Province was to be administered in all respects in accordance with the provisions of the Government of India Act, 1935, as modified by the Establish ment of West Pakistan Act, 1955. The Provincial Govern ment of West Pakistan was an entity set up in accordance with the Government of India Act, 1935. Therefore, prima facie, the "appropriate Government" with reference to the Federal Capital, after the constitution of the new Province of West Pakistan, was the Government of West Pakistan, and this would be perfectly clear were it not for the aforesaid section 290‑A empowering the Governor General to make provisions for the "government and adminis tration" of the area, and inter alia "with respect to the laws which are to be in force in the area". This section expressly extended the " executive authority of the Federation" (which by section 7 of the Government of India Act, 1935 "shall be exercised by the Governor‑General") to the Federal Capital, and empowered the Federal Legislature, in addition to its separate power of legislation under the Federal and the Concurrent Legislative Lists, also to make laws with respect to matters in the Provincial Legislative List to the exclusion of the Legislature of West Pakistan. To these wide exten sions of power, there was but one exception, viz., that the Federal Legislature could, not, and only the Provincial Legislature could, make laws with respect to matters relating to the High Court. By section 10 of the Establishment of West Pakistan Act, 1955, existing laws were continued in force "to apply to the areas and the persons to whom they would have applied if this Act had not been passed." For the purposes of section 10 of the Industrial Disputes Act, 1947, the question would be whether the Central Government continued to be the "Provincial Government" for the purposes of a reference of the kind in the present case. The Chief Commissioner appears to have been retained as the designation of the head of the Karachi Administration, but there was no longer a Chief Commissioner's Province, and therefore advantage could not be taken of the provision in clause 43 (a) of section 3 of the General Clauses Act, 1897, that the expression "Provincial Government" means "in a Chief Commissioner's Province, the Central Government." And similarly, there was no precise provision for delegation of executive authority, vested in the Governor‑General, such as was made available for a Chief Commissioner's Province by section 94 (3) of the Government of India Act, 1935, in the following terms: "A Chief Commissioner's Province shall be administered by the Governor‑General acting, to such extent as he thinks fit, through a Chief Commissioner to be appointed by him." Such delegation might conceivably be made under the general power conferred by section 290‑A for the "government and administration" of the Federal Capital. It may perhaps be also presumed that since the designation of the head of the administration was retained, viz., Chief Commissioner, all instruments empowering him in that name continued to have force, by virtue of section 10 of the Establishment of West Pakistan Act, 1955. It seems, however, that the powers of the Provincial Government under the Industrial Disputes Act, 1947, were not transferred to the Chief Commissioner at any time. and remained vested in the Central Government up to the date of integration of the West Pakistan Province. It is argued that in order that these powers should be continued in favour of the Central Government after that date, it was necessary that the Central Government should not merely possess the power of a Provincial Government in the relevant respect, but should be in law, the Provincial Government. This was no less necessary, it was argued, after the passing of the new Constitution, where the provisions relating to Karachi were couched in terms which were, if anything, less clear than in the period immediately before the Constitution Day. In the new Constitution, Article 211 replaces section 290‑A of the Government of India Act, 1935. It empowers Parlia ment to determine the area of the Federal Capital, which until such determination, was to remain as before. It also empowers Parliament to legislate for the Federal Capital in relation to all matters, including matters which in a Province, he within the exclusive power of the Provincial Legislature, with the exception of the High Court. It provides that "the administration of the Federal Capital shall vest in the President", whom it empowers, by Order, to make provision inter alia for its "government and administration" and "the laws which are to be in force therein." The provision in subsection (4) of section 290‑A, that " the executive power of the Federation extends to the Capital of the Federation" does not appear in Article

211. The latter omission might be thought to be sufficiently supplied by the provisions in Article 39 that the executive authority of the Federation "shall extend to all matters with respect to which Parliament has power to make laws" and that it "shall vest in the President." On this view, the entire legislative and executive power in respect of the Federal Capital, with the exception of such power relating to the High Court, belonged, indeed, to the Federation. But the question still remains, whether the effect of these instruments was to constitute the Federal (or Central) Government as the Pro vincial Government for the Federal Capital. It is perfectly clear that the definition of the term "appropriate Government" is based on differentiation between the Central Government on the one hand and the Provincial Government on the other. Each of these Governments is nominated as the " appropriate Government" not by reference to powers in respect of "industrial disputes", but as an independent entity. The subject of "industrial disputes" is included, indeed, in item 5 of the Concurrent List, and is therefore within the legislative competence of both the Centre as well as a Province, but, in the case of the Federal Capital, all such power is vested in the Centre exclusively, and the corresponding executive power vests exclusively in the President, not as the executive of a Province, but as the executive of the Federation. The learned Attorney‑General contended that before the commencement of the Constitution, the referring authority for the Federal Capital was the Central Government, and there fore the Central Government must continue to be the referring authority after the Constitution came into force, by virtue of Article 224, which declares that, "all laws, including . . . . . . notifications and other legal instruments in force . . . . . immediately before the Constitution Day shall, so far as applicable and with the necessary adaptations, continue in force." He referred also to the Removal of Difficulties (Adaptation) Order, 1956, (President's Order XV of 1956), whereby Article 224 was amended so as to require Courts, tribunals and other authorities, to construe laws, which they are required to enforce, "with all such adaptations as are necessary for the said purpose" (viz., of rendering it consistent with the provisions of the Constitution.) The proviso is added that if any question arises as to what adaptations are necessary to effect this purpose, such question shall be referred for final decision "to the Federal Government if the law relates to a matter enumerated in the Federal List or the Concurrent List in the Fifth Schedule and to the Provincial Government in any other case." The reply to this argument is that the Central Government was the "appropriate Government" so long as the Federal Capital had the status of a Chief Commissioner's Province, by virtue of clause (43a) in section 3 of the General Clauses Act, 1897. That state of affairs ended on the establishment of the Province of West Pakistan in October 1955, and the present difficulty arose from that time and still continues. It cannot be cured by mere adaptation, for that term does not include the making of fresh laws and is confined in its meaning to the making of verbal changes in a law to suit its provisions to changed conditions, e.g., the creation of new Provinces or other territories, or of new statutory authorities. A clause to replace clause (43a) of section 3, General Clauses Act, 1897, would be a new law, and not merely an adaptation of the existing clause relating to Chief Commissioner's Provinces, which no longer exist, and which have not been replaced by any equivalent entity. Moreover, under the Constitution, the Federal Capital is clearly a part of the Province of West Pakistan territorially. It is urged, with reference to the President's Order XV of 1956, that in so far as it requires Courts etc, to interpret existing laws so as to render them consistent with the new Constitution, it adds nothing to section (1) of Article

224. The innovation it effects lies in the provision withdrawing from the Courts and assuming to the Federal Government or the Provincial Governments the final power of determining what adaptations are necessary to effectuate the purpose of section (1) of Article

224. The result is to deprive the Courts of their proper power to interpret all laws, including the Constitution, judicially and, at the highest level, with finality. It was argued that not only was there no difficulty as to the proper meaning and effect of section (1) of Article 224, which could be the sole justification of an Order such as Order XV of 1956 made under Article 234, but the new provision is also ultra vires as being in conflict with the Constitutional provision in clause (1) of Article 224 which clearly leaves adaptations to the ultimate decision of the Courts. We have considered these contention with the care then deserve. There are plainly difficulties in the way of holding that; in law, any authority which exercises exceptionally and power belonging under the substantive provisions of the Constitution to a Provincial Government, is pro tanto the Provincial Government. To achieve the same result, in rela tion to the Federal Capital, by the method of adaptation of existing instruments seems to us to he impossible, without straining the method to the point of covering fresh legislation of a substantive nature For the same reason, it seems to in that the procedure of the President's Order XV of 1956 (as to whose vires we say nothing) is not apt in the present case. It was perhaps open to the President to make an order to cover a case such as the present, under Article 21: (2) (b) enabling him, by Order, to provide as to the laws which are to be in force in the Federal Capital, but no such order has been made. Since, however, the effect of any conclusions which we might record on these questions is likely to reach far beyond the particular reliefs which are sought in the present case, we content ourselves with indicating the nature of the diffi culties arising out of the present state of the Constitutional instruments relating to the Federal Capital. As for the case itself, we find that the view we take of section 33 of the Industrial Disputes Act, 1947, is sufficient for the right deter mination of this appeal. Assuming, therefore, without deciding, that the reference to the Industrial Tribunal by the Central Government was valid in law, we proceed to state what, in our view, is the effect, in relation to the facts of this case, of section 33 upon a true construction. The Tribunal has ordered the reinstatement of the striking workmen on the grounds: (1) that the strike being legal it was an act of misconduct on the part of the employer to termi nate their services without notice and (2) that the dismissal being during the pendency of the conciliation proceedings, it was in contravention of the terms of section 33 of the Act and therefore inoperative. With regards to the first point we are unable to share the Tribunal's view that in all cases where the strike is legal the employer's right to dismiss a striking employee is taken away even though the strike be unjustified, in tire present case the Tribunal itself has found that the strike resorted to by the workmen was not justified. In view of that finding the employer had under the general law the right to dismiss the striking employees and such dismissal, in the absence of and provision in the Act to the contrary, could not be held to be wrongful. The striking workmen have also been held by the Tribunal to be entitled to wages from the date of the Government's order under subsection (3) of section 10 of the Act. This question was not at all referred by the Central Government and the Tribunal clearly went beyond its terms of reference in ordering the employer to pay the wages of the striking employees. The penalty for the disobedience of an order under subsection (3) in the case of an illegal lock‑out is imprison ment or fine and not the payment of wages for the period of the lock‑out. As the legality or illegality of the lock‑out, if there was one, was not referred to the Tribunal, the order of t payment of wages in consequence of an illegal lock‑out was beyond the jurisdiction of the Tribunal to make. As regards the dismissal of the workmen being illegal by reason of section 33 it is necessary to determine whether the order was in violation of the terms of that section. To find an answer to this question it is necessary to refer to the relevant provisions of the Act. The Act defines an `industrial dispute' as any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non‑employment or the terms of employment or with the conditions of labour, of any person. The object of the Act is to_ provide machinery for the avoidance, settlement and adjudication of industrial disputes and for that purpose it creates certain authorities with different jurisdictions. These authorities are Works Com mittee, Conciliation Officers, Boards of Conciliation, Courts of Enquiry and Industrial Tribunals. The duty of the Works Committee, which the employer has to constitute under a general or special order of the Government, is to promote measures for securing and preserving amity and good relations between the employer and workmen, and, to that end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters. The duty of Conciliation Officers is to mediate in and promote the settlement of industrial disputes. Under section 12, when any industrial dispute exists or is appre hended, the Conciliation Officer may, or where the dispute relates to a public utility service, shall, hold conciliation proceedings in the prescribed manner. For the purpose of bringing about a settlement of the dispute the Conciliation Officer shall, without delay, investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement. If the Conciliation Officer succeeds in bringing about a settle ment of the dispute he shall report the result to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation, send to the Government a full report of the reasons on account of which a settlement could not be arrived at, and on receiving such report the Government may refer the dispute to a Board or Tribunal. The duty of the Board is to endeavour to bring about a settlement of the dispute and for this purpose it has to investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as it thinks fit in order to induce the parties to come to a fair and amicable settlement of the dispute. As in the case of the Conciliation Officer, the Board, if it succeeds in bringing about the settlement of the dispute, has to report the settle ment to the Government with a memorandum of settlement signed by the parties to the dispute. If no such settlement is arrived at the Board, after the close of the investigation, has to send to the Government a full report setting forth the proceedings and steps taken by it for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, its findings thereon, the reasons on account of which, in its opinion, a settlement could not be arrived a t and its recommendation for the determination of the dispute. The duty of a Court of Inquiry is to enquire into the matters referred to it and to report thereon to the appropriate Government. The Industrial Tribunal is charged with the duty to adjudicate on the dispute referred to it and to submit its award to the Government. Under the general provisions of section 10, if an industrial dispute exists or is apprehended, the Government may, by order in writing, refer the dispute to a Board for promoting a settlement thereof, or refer any matters appearing to be con nected with or relevant to the dispute to a Court of Inquiry, or refer the dispute to a tribunal for adjudication. Thus what can be referred to a Board or Tribunal is a dispute whereas the subject of reference to a Court can only be matters appearing to be connected with or relevant to a dispute. Where the reference is to a Board, it is for the purpose of promoting a settlement of the dispute but where the reference is to a Tribunal it is for adjudication of the dispute. The power to refer is discretionary with the Government except where the dispute relates to a public utility service and a notice under section 22 has been given or where the parties to a dispute apply for a reference to a Board, Court or Tribunal. Section 33 which has been held to be applicable to this case by the Tribunal directs that no employer shall during the pendency of any conciliation proceedings or proceedings before a tribunal, in respect of any industrial dispute, discharge dismiss or otherwise, punish any workman, except for miscon duct not connected with the dispute. The Tribunal has taken the view that since the Conciliation Officer had entered on the scene before the striking employees were dismissed by the employer on the 27th February the dismissal must be held to be during the pendency of conciliation proceedings. With a view to determining whether the dismissal was during the pendency of the conciliation proceedings it is necessary to ascertain the point of time when such proceedings commenced .in the present case. "Conciliation proceedings", as defined by the Act "is any proceeding held by a Conciliation Officer or Board under this Act." The commencement, and conclusion of conciliation proceedings, however, are defined by section 20 as follows:‑ "20(1) A conciliation proceedings shall be deemed to have commenced on the date on which a notice of strike or lock‑out under section 22 is received by the Conciliation Officer or on the date of the order referring the dispute to a Board as the case may be. (2) A conciliation proceeding shall, be deemed to have concluded (a) where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute; (b) where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be, or (c) when a reference is made to a Court or Tribunal under section 10 during the pendency of conciliation proceedings. (3) Proceedings before a Tribunal shall be deemed to have commenced on the date of the reference of a dispute for adjudication and such proceedings shall be deemed to have concluded when the award is published by the appropriate Government under section 17, or where an award has been laid before the Legislative Assembly or the Central Legislature under the proviso to subsection (2) of section 15, when the resolution of the Legislative Assembly or the Central Legislature thereon is passed." In the present case the essential question to be deter mined is whether conciliation proceedings were pending on the 27th February when the workmen were dismissed. To be able to hold that they were then pending, it must first be found that such proceedings had commenced on an earlier date. The dispute in question did not relate to a public utility service and therefore there can be no question of any notice under section 22 having been received or given, and the reference was not to a Board. Thus subsection (1) of section 20, which defines commencement of conciliation proceedings does not at all apply and it cannot but be held that conciliation proceedings had not commenced on or before the 27th February when the workmen were dismissed. From this it must further follow that no conciliation proceedings within the meaning of the Act were pending on the 27th February. And since the reference to the Tribunal was made long after the 27th February, the dismissal or discharge of the workmen was not during the pendency of the proceedings before the Tribunal so as to attract the application of section

33. It would, therefore, appear that that section was not at all applicable to the dismissal in question. It is, however, contended by the learned counsel for the respondents that the Conciliation Officer had taken certain proceedings under section 12 of the Act inasmuch as on several occasions he had interviewed the parties before the 27th February and that for that reason conciliation proceedings must be deemed to have commenced before the 27th February and to have been pending on that date. This contention prevailed with the Tribunal but on a careful perusal of the various provisions of the Act we are satisfied that the argument is fallacious. It is undoubtedly the duty of the Conciliation Officer under section 12 to hold conciliation proceedings where an industrial dispute exists or is appre hended but it does not mean that by the mere fact of holding such proceedings, conciliation proceedings can be said to have commenced where the industry involved is not a public utility service. An employer becomes subject to certain disabilities with the commencement of conciliation proceedings and therefore the Legislature considered is necessary to define when conciliation proceedings are deemed to have commenced and concluded. If conciliation proceedings have not commenced within the meaning of section 22, no disability under section 33 can be held to rest on the employer until proceedings before the Tribunal commence, though in actual fact the Conciliation Officer, in the case of an industry which is not a public utility service, may have started his own proceedings under section

12. If the commencement of conciliation proceedings is to be determined not by reference to the definition in section 20 and is held to depend upon the Conciliation Officer's taken proceedings under section 12, the result would be anomalous. Suppose a Conciliation Officer apprehending a dispute intervenes in the matter and being unable to bring about a settlement makes a report under subsection (4) of section 12 where the dispute does not relate to a public utility service, and on a consideration of that report the Government refers the case to a Board. In such a case, if the respondent's contention is sound there will be two dates on which conciliation proceedings can be said to have commenced, namely, (1) the date on which the Conciliation Officer took action under section 12 and (2) the date under section 20 on which the dispute was referred to the Bard. Similarly if the Government on receiving the Conciliation Officer's report refers the dispute not to a Board but to a Tribunal there will be two dates of the commencement of conciliation proceedings: (1) the date on which the Conciliation Officer intervened, and (2) the date, under section 33 read with section 20, sub section (3), on which the dispute was referred to the Tribunal. We cannot conceive that in the case of an industry which is not a public utility service two termini a quo were contem plated by the Act or that the earlier terminus a quo was intended to be the date of the commencement of conciliation proceedings. In support of the contention that conciliation proceedings must also be deemed to have commenced on the date the Conciliation Officer took action under section 12, reliance was placed by the learned counsel for the respondents on clause (b) of subsection (2) of section 20 which provides that conciliation proceedings shall be deemed to have concluded, where no settlement is arrived at, when the report of the Conciliation Officer is received by the appropriate Govern ment. The argument is that the report contemplated by this clause includes a report as to a dispute which does not relate to a public utility service, where the Conciliation Officer has not been able to bring about a settlement. The argument is plausible but on closer analysis we consider it to be fallacious. When subsection (2) of section 20 defines the point of time when conciliation proceedings are deemed to have concluded, it must be taken to refer only to cases where under sub section (1) of that section conciliation proceedings are deemed to have commenced and it cannot be held to include in the definition of conclusion of conciliation proceedings cases not covered by the definition of commencement of conciliation proceedings. Thus interpreted section 20 would mean that conciliation proceedings commence only (1) when notice of a strike or lock‑out is received by the Conciliation Officer in the case of a public utility service or (2) when a dispute not involving a public utility service is referred to a Board. These being the only two cases where conciliation proceedings can be deemed to have commenced, subsection (2) of section 20 will have to be construed as being limited in its application to these two cases when it defines when concili ation proceedings shall be deemed to have concluded. Read in this way clause (a) of subsection (2) would refer to a settlement arrived at in the course of proceedings held by the Board or by the Conciliation Officer where he had acted under section 12 on receipt of a notice of strike under section

22. Similarly clause (b) would mean that conciliation proceedings will be deemed to have concluded when the report of the Conciliation Officer, where no settlement is arrived at, is received by the Government, if that officer had commenced proceedings on receipt of a notice under section

22. In the same way, clause (c) when it refers to the pendency of conciliation proceedings will be taken to refer, where such proceedings were being held by a Conciliation Officer, to proceedings taken by him on receipt of a notice under section

22. The combined effect of sections 20 and 33, therefore, is that an employer cannot dismiss an employee after a notice of strike or lock‑out in respect of a public utility service is received by the Conciliation Officer or after a dispute has been referred to a Board or to a Tribunal. The principle underlying this provision seems to be that to subject an employer to a disability under section 33, a reference should have been made to a Tribunal or to a Board or the conciliation proceedings should have begun before a Conciliation Officer on receipt of a notice of strike or lock‑out in an industrial dispute which relates to a public utility service. Conciliation proceedings for the purpose of bringing any such disability do not at all commence when the Conciliation Officer intervenes in a dispute under section 121 otherwise than on receipt of a notice under section

22. This apparently was the view that the Government took when the striking employees made an application to it asking for the prosecution of the management of the Company for their alleged illegal dismissal. The Ministry of Labour refused to take action on the ground that the workmen having been discharged or dismissed on 27th February 1956, i.e., 31 days before the date of reference to the Tribunal, section 33 was not applicable. The newly inserted section 33‑A which empowers a Board or Tribunal to entertain a complaint of any contravention of the provisions of section 33 is based on the same principle. While it authorises a complaint before a Board or a Tribunal, it does not authorise a Conciliation Officer to entertain or determine any such complaint, thus indicating that a Conciliation Officer cannot take cognizance of the legality or a illegality of a dismissal during the pendency of proceedings before him. For these reasons, we have arrived at the conclusion that section 33 was not at all applicable to this case and that neither under that section nor under the general law could the striking employees be held to be entitled to re‑instatement. We therefore allow the appeal and set aside the award of the Tribunal but in the circumstance, leave the parties to bear their own costs. A.H. Appeal allowed.