Appeal No 759 of 1957
Appeal from the judgment and Order dated June 26 1957 of the Bombay High Court in Appeal No 92 of 1956
J C Bhatt section N Andley J B Dadachanji Rameshuar Nath and
P L Vohra for the appellants
R Ganapathy Iyer and D Gupta for respondent
February 16
The Judgment of Gajendragadkar Subba Rao Wanchoo and Mudholkar JJ was delivered by Wanchoo J Sarkar J delivered a separate Judgment
WANCHOO J
This appeal by certificate granted by the High Court of Bombay raises the constitutionality of section 1142 of the Bombay Industrial Relations Act No XI of 1947 hereinafter called the Act
The brief facts necessary for present purposes are these
108 The appellant is a cotton textile mill situate in Bombay
It is said that the appellant had been continuously making losses from 1950 to 1955
References were however made under section 73 A of the Act by the Rashtriya Mill  Mazdoor Sangh Bombay in respect of disputes relating to bonus for the years 1952 and 1953 which are said to be pending before the Industrial Court Bombay
The ease of the appellant before the Industrial Court was that as it had made losses there was no question of its paying any bonus for the years in dispute
It seems that at the same time there were cases relating to bonus of other mills pending before the Industrial Court and the appellant applied that its case should be dealt with separately and this prayer was acceded to
It seems that while the references were pending an agreement was
arrived at between the Mill owners  Association Bombay and the Rashtriya Mill Mazdoor Sangh Bombay with respect to payment of bonus for the years 1952 to 1957 and the agreement was to come into force with respect to each mill when it was signed by each member mill of the Mill owners  Association
Clause 6 of that agree ment provided for payment of bonus even where the profit made by a mill was not adequate to provide for all prior charges as per the Full Bench formula evolved by the Labour Appellate Tribunal in The Mill owners  Association Bombay vs The Rashtriya Mill Mazdoor Sangh 1 or even where a mill made actual loss the minimum bonus being in either of these two cases 4 8 per cent
of the basic wages
earned during the year subject to such mill being entitled to adjust the amount thus paid by it as the minimum bonus against any available surplus in any subsequent year or years under the provisions of the agreement
This agreement was registered and was made enforceable as an award against those mills which were parties thereto
The appellant however did not sign the agreement and therefore it was not enforced as an award by the Industrial Court against the appellant
Thereafter the Rashtriya Mill Mazdoor Sangh wrote to the Government of Bombay requesting that the 1 109 said award should be enforced against the appellant in exercise of the powers vested in the Government by section 1142 of the Act
After necessary action under section 1142 the Government of Bombay issued a notification dated July 31 1956 directing that the award made by the Industrial Court on March 13 1956 for payment of bonus for the years 1952 and 1953 and also for the years 1954 to 1957 be enforced against the appellant
This was followed by a writ petition by the appellant in the High Court challenging the constitutionality of section 1142 and also challenging the power of the State Government to issue such a notification under that provision
The petition was however dismissed on October 9 1956
There was then an appeal to a Division Bench of the High Court in which also the appellant failed
The appellant then applied for a certificate to enable it to file an appeal to this Court which was granted and that is how the matter has come up before us
Two main points have been urged on behalf of the appellant before us
In the first place it is urged that section 1142 is unconstitutional as it violates the fundamental rights guaranteed under article 191f and g of the Constitution
In the second place it is urged that even if section 1142 is constitutional the notification has gone beyond the powers conferred on the State Government by that section and therefore the notification is bad
We do not think it necessary for purposes of the present appeal to consider the constitutionality of section 1142 for we have come to the conclusion that the notification is bad because it goes beyond the powers conferred on the State Government by that section
This brings us immediately to the second point that has been urged before us and in that connection we have to consider the ambit of the power of the State Government under section 1142
Section
1142 reads as follows In cases in which a Representative Union is a party to a registered agreement or a settlement submission or award the State Government may 110 after giving the parties affected an opportunity of being heard by notification in the Official Gazette direct that such agreement settlement submission or
award shall be binding upon such other employers and employees in such industry or occupation in that local area as may be specified in the notification Provided that before giving a direction under this section the State Government may in such cases as it deems fit make a reference to the Industrial Court for its opinion
 The words of section 1142 are very general and may at first blush be open to the interpretation that any agreement settlement submission or award may be extended thereunder provided it fulfills its terms
But further consideration shows that there are two obvious limitations on the power of the State
Government in that behalf
The first limitation arises out of the subject matter of the agreement etc to be extended
Suppose the agreement etc
deal with lot us say the wages of a certain type of workmen in a certain mill
Suppose that the agreement etc are extended to ano ther mill where that type of workmen does not exist
Obviously the agreement cannot be extended in these circumstances and the power of the State Government is thus limited by the subject matter of the agreement etc
The second limitation which again is obvious arises from the provisions of law
The proviso to section 1142 shows that before exercising its power under the said section the Government can refer the matter to an Industrial Court and there can be no doubt that an Industrial Court cannot and will not advise anything against the law
Section 95 A makes the determination of any question of law in any order decision award or declaration passed or made by the Full Bench of the Industrial Court under the regulations made under section 92 binding in all proceedings under the Act
What is done under section 1142 is also a proceeding under the Act after notice to the parties affected
The State Government is thus bound by any decision on a question of law while proceeding under a 1142
The 111 policy of the Act underlying section 95 A therefore lead to the conclusion that the exercise of power conferred by section 1142 has to be in conformity with the industrial law laid down by the Full Bench of the Industrial Court and also by any decision of this Court
The State Government therefore when it passes an order under section 1142 must have full regard to the law as laid down by the legislature and by the decisions of this Court and cannot pass an order under section 1142 which is against such law
Besides section 1142 places a registered agreement a settlement a submission and an award on the same footing and so if an award has to conform to section 95 A as it must so must the other three mentioned therein
Therefore when the State Government acts under section 1142 it can only do as between the parties before it what a labour court an Industrial Court or a wage board can in law do under the Act
We do not think that section 1142 authorises the State Government to act against the law as laid down by the legislature or by this Court
Section 1142 therefore appears to be speedy remedy dispensing with all appeals provided under the Act by which the State Government may direct that the terms and conditions of employment in the matter of wages hours of work and so on may be the same in a particular industry or occupation in a particular area as may have been settled between a representative union and other employers in that area and as could if necessary be enforced through an award in a case to which the representative union was a party
There can be no doubt however that the State Government cannot do under section 1142 what an adjudicator has no power to award under the provisions of the Act
Therefore as we read a 1142 we cannot escape the conclusion that the State Government s power to make a direction under that section is co terminus with the power of an adjudicator be it a labour court an Industrial Court or a wage board under the Act to make an award thereunder and the State Government cannot under section 1142 do what an adjudicator cannot do under the Act
This being the ambit of the State Government s power in respect of giving a direction under a 1142 112 let us now proceed to see whether the impugned notification is within the ambit of these powers
By this notification the State Government has directed that the award dated March 13 1956 made by the Industrial Court shall be binding on the appellant and its employees in the matter of payment of bonus for the years 1952 to 1957 both inclusive
It is not in dispute that the said award was based on an agreement between the Mill owners  Association Bombay and the Rashtriya Mill Mazdoor Sangh Bombay
The said agreement provided that it would have to be signed by each member mill of the Mill owners  Association before it would be binding on it and again it is not in dispute that the appellant mill though it is a member of the Mill owners  Association never signed it
Farther cl
6 of the agreement provided for payment of minimum bonus even in cases where there was no adequate profit to provide for all prior charges as per the Full Bench formula and also in cases where a mill had made actual loss on the year s working subject to a proviso as to adjustment
Thus by the direction given in the impugned notification the appellant is subjected to payment of bonus even where it has not made adequate profit to provide for all prior charges or has in fact made a loss
The contention on behalf of the appellant is that it would not be open to an Industrial Court to grant bonus when profit was not adequate to meet all prior charges or where there was an actual loss and therefore when the impugned notification made it possible for grant of bonus even in these cases for prima facie the appellant had made losses upto 1955 it directed something which even an Industrial Court could not do  In consequence it is urged that the notification inasmuch as it makes this possible is beyond the powers conferred on the State Government under section 1142 because it allows something to be done which even an Industrial Court could not allow
Reliance in this connection is placed on the decision of this Court in The New Manekchowk Spinning
Co Ltd and Others vs The Textile Labour Association 1
In that case this Court was considering 1 1961 3 SCR 113 a similar agreement relating to Ahmedabad
The Industrial Court had imposed that agreement after its expiry for one year on the mills inspite of their contention that they were not bound to pay any bonus for the years in dispute in view of the law laid down by this Court in The Associated Cement Companies Limited vs The Workmen 1
After examining the terms of the agreement then in dispute this Court came to the conclusion that in view of the law laid down in The Associated Cement Companies  case the Industrial Court had no jurisdiction to impose that agreement on the mills
It further held that an agreement of that kind could only continue by consent of parties
and could not be enforced by industrial adjudication against the will of any of the parties
The agreement in the present case directed to be enforced by the impugned notification is similar in terms and as held New Manekchowk s case 2 it could not be enforced by industrial adjudication against the will of any of the parties
The power of the State Government under section 1142 being co terminus with the power of an adjudicator under the Act such an agreement cannot therefore be directed to be enforced against the will of the appellant even under section 1142 inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section
The impugned notification therefore must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under section 1142 and must therefore be struggle down
We therefore allow the appeal with costs and setting aside the order of the High Court hold that the notification dated July 31 1956 is beyond the powers of the State Government under section 1142 and direct that it will not be enforced
We should however like to make it clear that this decision will not prejudice the trial of any references with respect to bonus which may be pending or which may hereafter be made between the appellant and its employees with respect to years 1952 to 1957 both 1 2  114 inclusive
If such references are pending or are hereafter made they will be decided in accordance with the decision of this Court in The Associated Cement Companies  Case SARKAR J
This appeal arises but of an application made by the appellants to the High Court at Bombay under article 226 of the Constitution for a writ directing the respondent the State  of Bombay to forbear from acting upon or enforcing a certain notification issued by it under a 1142 of the Bombay Industrial Relations Act 1946
This order was sought on two grounds
The first ground was that section ll42 was ultra vires illegal and void
The second ground was that if it was not so the notification had been issued in improper exercise of the powers conferred by that provision
The appellants are a cotton textile mill in Greater Bombay a local area under the Act and its directors and shareholders
Their application was dismissed by the High Court and hence the present appeal
It appears that certain references were pending since 1953 and 1954 under the Act in the Industrial Court between various cotton textile mills in Greater Bombay and their employees in respect of disputes concerning bonus for the years 1952 and 1953
In these references the employees were represented by the Rashtriya Mill Mazdoor Sangh a Representative Union of workmen in the cotton textile industry as defined in the Act and a union registered under it
The appellant mill was a party to these references
On March 1 1956 while these references were pending the Rashtriya Mill Mazdoor Singh entered into an agreement with the Mill Owners Association Bombay of which fortyseven cotton textile mills including the appellant mill were members regarding the bonus to be paid to the employees of these mills for the years 1952 to 1957
This agreement was subsequently accepted individually by about fortytwo of the mills who were members of the Association and parties to the references and became binding on these mills
This agreement was later registered under the Act and filed in the pending references and an award was 1 115 made by the Industrial Court on March 13 1956 in terms of it as between the mills who had individually accepted the agreement and their employees
The appellant mill did not accept the agreement and no award was made in the references concerning it and so far as it was concerned the references remained pending
On July 31 1956 the respondent made the order which is challenged in these proceedings
That order was in these terms Whereas the
Rashtriya Mill Mazdoor Sangh Bombay is a party to an award dated the 13th March 1956 And whereas the Government of Bombay con siders that the award should be made binding upon the employers specified in column 1 of the schedule hereto annexed and their employees And whereas the said employers and the Rash triya Mill Mazdoor Sangh Bombay representing the said employees being the parties affected were heard Now therefore in exercise of the powers conferred by sub section 2 of section 114 of the said Act the Government of Bombay hereby directs that the said award shall be binding on the employers specified in column 1 of the schedule hereto annexed and their employees in the matter of payment of bonus for the years specified against the employers in column 2 of the said schedule
 The appellant mill was one of the employers men
tioned in the schedule to the notification and the schedule further provided that the award would be binding on the appellant mill and its employees for the years 1952 to 1957 both inclusive
As a result of this notification the appellant mill became liable to pay bonus to its employees for the years mentioned in terms of the award based on the agreement to neither of which it was a party
The appellants contend that the appellant mill is not liable to pay bonus in law as laid down by this Courtin Muir Mills Co Ltd vs Suti Mills Mazdoor Union 1 and by the Full Bench 1  116 of the Labour Appellate Tribunal in Mill Owners  Association Bombay vs Rashtreeya Mills Mazdoor Sangh 1 as it has not made any profit for the period commencing from June 30 1950 and ending on June 301955
The agreement on which the award was based adopted a formula for ascertaining the available surplus of the profits of an employer and provided for payment of certain bonus out of it
This bonus I gather would have been of a smaller amount than that payable under the formula laid down in the cases mentioned earlier
The appellants have no complaint against this Part of the agreement for presumably under it they would not be liable to pay any bonus at all
What they object to is el
6 of the  agreement
This clause in substance provided that when no avai
lable surplus was found to exist according to the for mula or even when a mill had incurred loss in a particular year it would have to pay its employees a minimum bonus equivalent to 48 per cent of the basic wages earned by them during the year with a right to recoup the bonus so paid out of the bonus that would be payable under the agreement in subsequent years and out of the residue of the surplus profits then remaining it would have to pay bonus in terms of the agreement
The substance of the appellants  grie vance against the notification is that under it the appellant mill has to pay bonus in terms of cl 6 of the agreement even though it has been working at a loss
The first question is whether section 1142 is invalid and illegal
That section so far as is material is in these terms section 114 1
A registered agreement or a settlement submission or award shall be binding upon all per
sons who are parties thereto 2 In cases in which a Representative Union is a party to a registered agreement or a settlement submission or award the State Government may after giving the parties affected an opportunity of 1 117 being heard by notification in the Official Gazette direct that such agreement settlement submission or award shall be binding on such other employers or employees in such industry or occupation in that local area as may be specified in the notification
 The appellants first challenge the validity of the section on the ground that it offends article 14 of the Constitution
It is said that it gives an unguided and arbitrary power to the State Government to discriminate between various sets of employers and employees and make an order on any one set at its pleasure leaving out others
It seems to me that this contention is not well founded
The power given by the provision is not in my view uncontrolled
The object of the Act clearly is the settlement of industrial disputes and attainment of industrial peace
Furthermore under the section the order can be made on employerS and employees in a local area which again is a limitation of the power
Now a local area is an area notified as such for the purposes of the Act see section 223
The object of this pro vision as to local areas is to divide the State into several areas for better maintenance of industrial peace and to group together for that purpose the industries in a region
If conditions of labour in any area where a large number of workmen is collected are uniform then there is less likely to be disaffection among them whereas if such conditions are not the same the workmen are likely to become restive
It is well known that regional considerations are closely connected with industrial disputes and are of importance for their settlement
The local area contemplated by section 1142 is obviously the area in respect of which the Representative Union mentioned in it has been registered
No reference can be found in the section to any other local area
Under section 233 a Representative Union means a union registered as such under the Act and under section 131 a Representative Union is a union which has a membership of not less than fifteen per cent
of the employees in any industry in any local area and registered for that industry in the area
118 The agreement settlement submission or award mentioned in the section has to be one to which a Representative Union is a party
It follows from this that a substantial body of workmen in an area has come to a decision or become bound by an award as to a question or questions affecting them
Therefore the power under the section can be exercised only for achieving industrial peace in that area
It is not unlikely when a substantial section of workmen congregated in an area have secured certain rights that the other employees in that area may claim similar rights and this may disturb industrial peace in that area
The power can be exercised only for meeting such disturbance and only in the local area where it occurs
There are therefore two guiding principles
First the power can be exercised only to prevent breach of industrial peace
Secondly it can be exercised only in a specified area if there is a threat to industrial peace there
An exercise of the power outside the area and for purposes other than maintenance of industrial peace would be beyond the scope of the section
Again once there is occasion for legitimate exercise of the power and it is exercised it must be exercised in all units of the industry in that local area in which units the threat to the industrial peace exists if that would restore the peace
It would be open to the Courts to correct a discriminatory use of the power or its use outside the scope of the section
Therefore it does not seem to me that the section confers unguided and arbitrary power
is of some interest to state that in the present case there has been no such discriminatory use of the power or any use outside the section
The respondent has made the award binding on all the remaining mills who had not accepted the agreement and there is evidence that there was threat of breach of industrial peace in these mills
Then also I find that the section has conferred the power on the highest authority namely the Government itself
That would be some guarantee that it would be duly exercised
This is a further reason for 119 holding that the section does not confer absolute and arbitrary Power
The next objection to the section is that it offends article 191g in that it puts an unreasonable restriction on a person s right to carry on business
This contention also is unacceptable to me
There is no doubt that the section puts certain restrictions on a person s right to carry in an occupation or business
The real question is whether the restrictions have been put in the interest of the general public and are reasonable
That the restrictions have been put in the interest of the general public seems to me to be unquestionable
The reason why the restrictions have been put is that otherwise industrial peace would be disturbed
The entire country is interested in industries and therefore in industrial peace
This point requires no elaboration
 Then are the restrictions put reasonable It seems to me that they are
The restrictions are that an agreement settlement award or submission all of Which of course must be concerning industrial disputes to which a person is not a party is made binding on him
By an agreement the parties to an industrial dispute settle it themselves
A settlement means a settlement of an industrial dispute arrived at with the assistance of a conciliator in the course of conciliation proceedings under the provisions of the Act
A submission is a reference of an industrial dispute to arbitration
An award is an adjudication on an industrial dispute by the court constituted under the Act
An agreement a settlement or a submission is the result of the free consent of the parties to the dispute
As earlier stated the section only applies to an agreement settlement or submission to which a Representative Union which is a union representing a substantial number of workmen is a party
Therefore the section can apply to an agreement settlement or submission which a substantial number of workmen and an employer has of their free choice accepted
It would follow that such an agreement settlement or submission has been considered reasonable by parties 120 interested and in the case of a settlement by the con ciliator appointed under the Act also
The restrictions imposed by any of these must therefore be reasonable
An award on the other hand is a decision of a court and can therefore always be expected to be reasonable
If certain restrictions are reasonable for an employer and his employees I suppose it would follow that those restrictions would be equally reasonable for other employers and employees and more so when they are all in the same neighborhood where the conditions are likely to be more or less the same
Therefore it seems to me that the restrictions imposed by section 1142 cannot be said to be unreasonable
I have earlier summarised the offending part of the agreement
I do not think that there is anything unreasonable there
The employer pays only 48 per cent of the basic wage in the year when he makes no profit with a right to recoup it in a subsequent and more prosperous year
The maximum that he has to pay as bonus in the best year is I gather less than what he would have to pay under
the formula regarding bonus laid down by this Court
The agreement extends over 6 years and it would not be unreasonable to suppose that during_ these years profits might be made to wipe off the minimum bonus paid in a lean year
The restrictions put by the present agreement are therefore in my view quite reasonable
It may be that in individual cases which are not likely to be many the restrictions may work hardship
But that would not justify a conclusion that section 1142 itself imposes unreasonable restrictions on a man s right to carry on his business or occupation
This view was taken by this Court in Bijay Cotton Mills vs The State of Ajmer 1 where it was said in respect of the  Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the Act but this must be due entirely to the economic conditions of these particular employers
That cannot be a reason for the striking down the law itself as unreasonable 1 1955 1 SCR 752 755 6 121 Another ground on which the validity of the section was challenged was that it prevented a party from having an industrial dispute decided by an Industrial Court under the Act
But I do not see that there is an inherent right in a party to an industrial dispute to have it decided by an Industrial Court under the Act
The right to ask for an adjudication by an Industrial Court is itself created by the Act
What the Act has given it can clearly restrict or take away in any manner it thinks fit
The provisions of the Act must be read together and in cases in which power under section 1142 has
been exercised the right to ask for an adjudication by an Industrial Court must be considered either as taken away or unavailing
I thus come to the conclusion that the section is not invalid for any of the reasons mentioned
I also feel no doubt that the section was quite within the legislative competence of the legislature which passed it
I did not understand the learned counsel for the appellants to contend to the contrary
I have mentioned the legislative competence only to dispose of another argument which also I think was aimed at the validity of the section
It was said that there is no power anywhere to provide for payment of bonus where in law such bonus is not payable
This argu ment is founded on the decision of this Court in the Muir Mills case 1 where it had been said that no bonus is payable where no profit has been made
Therefore it is said that the section authorises payment of bonus where none is payable in law
This argument seems to me to be misconceived
If the section is legislatively competent and otherwise valid as I think it is then it cannot be invalid for the simple reason that it directs payment of bonus where as held by this Court as a matter of adjudication none would be payable in law
The law laid down by this Court is only for application when the question comes up for adjudication by a court bound by that law
It has no relevance in deciding the validity of an otherwise competent law
The law laid down by any Court cannot take away legislative competence
The 1  122 enactment in question has left the law laid down by this Court quite unaffected it will still apply in all cases where it is applicable
Now I proceed to consider the validity of the notification
As I understood the learned counsel for the appellants he put his case on two grounds
He first said that the notification was invalid as it was made while a reference was pending in an Industrial Court
The reasoning is that it is invalid as it takes away the jurisdiction of that Court to decide the pending reference
I think what I have earlier said is a sufficient answer to this contention
The right to have the pending reference proceeded with was given by the Act
There is nothing to prevent that Act or any other from providing that the pending reference shall be discontinued or become infructuous
If a notification could be made under the section as the present argument assumes it could be then as to when it could be made would certainly depend on the terms of the statute
I find nothing in the Act to show that a notification could not be made while a reference was pending and so as to render it abortive
Therefore I think that no exception can be taken to the notification in the present case for the reason that it was issued while the reference was pending
The other challenge to the notification does not appear to have been raised in the High Court
It was based on section 95A of the Act which is in these terms section 95A
The determination of any question of law in any order decision award or declaration passed or made by the Full Bench of the Industrial Court constituted under the regulations made under section 92 shall be recognised as binding and shall be followed
in all proceedings under this Act
It is said that the Government in issuing a notification under section 1142 was in view of section 95A bound by the decisions of the Full Bench but in issuing the present notification it ignored a decision of the Full Bench which provided that no bonus would be payable by an employer where he had made no profits
Therefore it is contended that the notification is invalid
I am unable to accept this argument
I will assume 123 that there is Full Bench decision of the kind mentioned
It is also true that the effect of the notification is to make the appellant mill pay bonus for a year when it had made no profit
All this however to my mind makes no difference for though in issuing a notification under section 1142 the respondent has to give the parties sought to be affected by it a hearing there is really no proceeding held within the meaning of section 95 A in connection with the issue of the notification
All that section 95A does is to make the determination of any question of law by the Full Bench binding in certain proceedings
In order that determination of a question of law may be binding in another proceeding that proceeding must raise the same question for a determination of one question of law cannot be binding on another question
Now what is the question when a notification is intended to be issued under is
1142 The only question is whether it is necessary for preserving industrial peace in a locality that a certain agreement settlement submission or award should be made binding on persons who are not parties to it
Such a question would not be a question of law at all it would not be a question which could ever have arisen before the Full Bench
It would follow that no occasion of being bound by a determination of a question of law by the Full Bench can ever arise when the Government is considering whether a notification under section 1142 should be issued
It may be that the result of a notification made under section 1142 is to create a liability for example to pay bonus
The question of law as to the liability to pay bonus may have been decided by the Full Bench
That however cannot make the question arising under section 1142 a question whether in law bonus is payable
The questions remain essentially different
Therefore it seems to me that section 1142 does not contemplate a proceeding of the nature conceived by section 95A
Then I find that section 95A occurs in Chapter XIII of the Act which is concerned with Industrial Courts
It appears from the provisions of this chapter that the Industrial Court is the highest Court contemplated by 124 the Act
Under section 92 it has power to provide by regulations made by it that it will sit in Benches consisting of more than one person
Obviously it is intended that when a question of importance and difficulty arises the Court will sit in a larger Bench
Section 95A appears therefore to have been enacted for the purpose that other courts acting under the Act should follow the decisions of the Full Bench so that there might be uniformity of law
It was not intended to have any application to the issue of a notification under is
1142
It also seems to me that if in issuing a notification under section 1142 the Government were to be bound by the decisions of the Full Bench then that section would be rendered almost completely infructuous
The question whether in view of section 95A in issuing a notification under section 1142 the Government is bound to follow the decisions of the Full Bench can arise only if section 1142 is valid
If section 1142 is valid an interpretation of a 95A which renders it infructuous cannot be correct
The sections of a statute must be so interpreted as not to affect the operation of one another
Let me take the case of an agreement concerning bonus between employer A and his employees
Now there is nothing in law to prevent an employer and his employees from making any agreement they like as to bonus
They may agree that bonus would he paid at a certain rate even when the employer has not made any profit
That would be a perfectly valid agreement
The agreement that was made in this case was of that kind
It has not been suggested that the agreement was invalid
Indeed the fact that it was filed in the pending references and an award was made in terms of it would put it beyond doubt that it was unexceptionable for the award was made in terms of the agreement as required by section 115A and it could not have been so made unless the agreement was in all respects valid
The Act therefore contemplates an agreement of this kind
If the argument of the learned counsel for the appellants is right this agreement cannot be made 125 binding between B and his employees
Now first section 1142 does not say that the agreement contemplated by it must comply with all decisions of the Full Bench
I find no justification for adding to the word agreement in section 1142 the words provided it is in compliance with decisions of the Full Bench
Secondly common experience would show that when disputants settle their disputes themselves by an agreement they rarely if ever make the agreement strictly in terms of their legal rights they as it is said give and take and adjust matters in their own way
So cases would be rare where the parties make  the agreement strictly in terms of the law laid down  by the Full Bench
Thus if the contention of the appellants is right there would practically be no agreement to which section 1142 would apply
Now what is the law that can be laid down by the Full Bench regarding right to bonus It can Only be general principles as to when it is to be payable and if payable how the amount of it is to be calculated
This is what this Court did in the Muir Mills Case 1 and the subsequent cases regarding bonus
The actual award of bonus by the Full Bench on the facts of the case before it would of course not be a determination of a question of law
Suppose now that the agreement between A and his employees was in compliance with the Full Bench decision
That agreement must therefore only provide that bonus of a certain amount would be paid in certain years
I do not find it possible to conceive of an agreement concerning bonus made after the Full Bench decision which does not provide for the amount of the bonus to be paid but only lays down the formula for calculating what is to be paid for the formula is in the Full Bench decision and does not require to be laid down afresh
That agreement would be an agreement in compliance with the Full Bench decision
Suppose such an agreement provides for payment of a month s wage as bonus
Now this agreement is to be made binding on B and his employees
If the argument that it can be made so binding only if as a result B is not made to pay 1 1955 1 SCR 991
126 anything more than what he would have to pay under he Full Bench decision itself is right then it seems to be that the only case in which the agreement can be made so binding will be that in which the figures for example of income expenses rehabilitation and a host of other things on which according to the Full Bench decision the bonus is to be calculated are in the case of B absolutely identical with those in the case of A
If the figures were not so identical then in the case of B a month s wages may be too large a bonus according to the Full Bench decision though it La just right in the case of A
I do not think that such identity would ever exist
I think it right to point out here that under section 1142 only the agreement as made can be extended to become binding on others
There is no power under it to alter the agreement in any way and then make it binding
What I have said so far concerning agreements would apply equally to settlements
Therefore again almost all agreements made in terms of the Full Bench decision would also be taken out of the operation of section 1142
Then I take the case of an award
An award is a decision of a court adjudicating upon an industrial dispute under the Act
I do not consider now an award based on an agreement for such an award would in substance be an agreement and with agreements I have already dealt
I will therefore take an award passed as a matter of adjudication
I should suppose that such an award would be in accordance with the law as decided by the Full Bench for the decision of the Full Bench would be binding on the court passing the award in view of a 95A
As stated in connection with agreements such an award would only decide how much bonus assuming the dispute to be concerning bonus would have to be paid it would not be laying down any general principle for calculating bonus for ex hypothesis those principles have already been laid down by the Full Bench
Here again as in the case of agreements and for the same reason if the argument for the appellants is right the award can be made binding on employers not parties to it only when the relevant figures in the case if both the employers 127 namely the one who is a party to the award and also the other on whom the award is sought to be made binding are identical
I conceive such identity would never exist
As regards submissions I am unable to see how section 95A can have any application at all
Submissions are defined in section 66 of the Act which so far as material provides that Any employer and a Representative Union may by a written agreement agree to submit any present or future industrial dispute to   arbitration Such agreement shall be called a submission
 It does not appear to me to be conceivable that the Full Bench could ever have decided whether such a submission shall be made or not
The making of a submission involves no question of law
It can be made only in respect of industrial disputes
Section 66 gives the parties concerned the right to make it
Clearly when a submission by A and his employees is sought to be made binding on B and his employees there can be no question of compliance with any Full Bench decision
It would therefore appear that section 1142 would become almost wholly infructuous if a notification under it could be issued only where the effect of that would not be to produce a result which is not in compliance with Full Bench decisions
It also strikes me that if in issuing the notification the Government had to follow the Full Bench decisions then the issue of that notification would really become an adjudication the Government taking the place of the Industrial Court
The very same questions would then arise as would have arisen if the matter had to be decided by an Industrial Court
I am unable to hold that the inten tion was to make the Government itself an Industrial Court
If an adjudication by a court was necessary then the Industrial Court was already there and there was no need to put the duty of adjudication on the Government
For all these reasons I do not think that in issuing a notification under section 1142 any question of complying with any Full Bench decision arises
In my view 128 the issue of the notification is not a proceeding as contemplated by section 95A
Lastly it was contended that the notification under the section had been issued mala fide
The only reason for this contention was that the object of such issue was to get round the decision of this Court in Muir Mills case 1
It is true that one of the reasons why the Rashtriya Mill Mazdoor Sangh wanted the notification to be issued was that it wanted to find a way out of the situation arising as a result of the decision of the Supreme Court in Muir Mills case 1
But I am not able to agree that makes the notification mala fide
Apart from the fact that the Sangh felt that the decision had not helped the industry or the workmen which feeling I have no reason to doubt was perfectly honest I am unable to see bow if it is legally permissible under the statute to do a thing the result of which would be to get round a decision of this Court the doing of it can be said to be mala fide
The Act directly permits and contemplates a notification which would produce a result in variance with a decision of this Court
There has been no misuse of the Act at all
As I have earlier stated in the case of bonus the effect of a notification under section 1142 would almost always be to permit something which is not permitted under the rule laid down in the Muir Mills case 1
That being so a notification duly issued under the section cannot be said to have been issued mala fide
For all these reasons in my view the Act is not invalid and the notification of July 31 1956 is unobjectionable and cannot be set aside
I would therefore dismiss the appeal with costs
By COURT In accordance with the majority judgment the order of the High Court is set aside and the appeal is allowed with costs
Appeal allowed


Summary:
The manager of an undivided Hindu family consisting of himself his brother and their step mother instituted a suit for recovery of the amount due under a mortgage belonging to the family
The step mother who was interested in the mortgagee right was not made a party to the suit
Though the manager the first plaintiff did not describe himself as the manager in the plaint the allegations in the plaint showed that the suit was filed on behalf of the joint family
No objection as to non joinder was raised in the trial court but when the appeal was pending in the High Court the step mother was added as a party on her applica tion
The contesting defendants pleaded that as all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage and the first plaintiff did not in any case purport to institute the suit in his capacity as the manager the suit must fail
Held 1 that the failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of section 22 Of the Indian Limitation Act 1908  2 that the question whether a suit as instituted by the manager of an undivided Hindu family in his personal capacity or as representing the family depends upon the circumstances of each case and that the failure of the plaintiff to describe himself as the manager in the plaint is not decisive of the question
1 2 897 In the resent case the step mother was not a necessary party and the facts showed that the suit was instituted by the first plaintiff in his capacity as manager
Accordingly the suit was maintainable
Guruvayya Gowda and Others vs Dattatraya Anant and Others Bom
11 referred to