Appeals Nos 358 and 359 of 1957
Appeals by special leave from the judgment and decree dated April 4 1956 of the Patna High Court in M J C Nos
546 and 590 of 1955
J N Banerjee and R C Prasad for the appellant In both appeals
Basanta Chandra Ghose I and P K Chatterjee for respondents Nos
1 10  12 57 in C A No 35857
M C Setalvad Attorney General of India Nooni Chakraverty and B P Maheshwari for respondent No 59 in C A No 35857 and Respdt
No 1 in C A No 35957
RPatnaik for respondent No 63 in CA No 35957
August 22
The Judgment of the Court was delivered by 1193 GAJENDRAGADKAR J
Where an industrial dispute has been referred to a tribunal for adjudication by the appropriate government under section 10 1 d of the  XIV of 1947 can the said government supersede the said reference pending adjudication before the tribunal constituted for that purpose  That is the short question which falls to be considered in these two appeals by special leave
The question arises in this way On October 8 1954 by Notification No IIIDI 1602 54 L 15225 the government of Bihar referred an industrial dispute between the management of the Bata Shoe Co Ltd Digbaghat Patna and their 31 workmen mentioned in annexure I A  in exercise of the powers conferred on the said government by section 7 read with section 101 of the Act
The dispute was whether the dismissal of the workmen in question was justified if not whether they were entitled to reinstatement or any other relief For the adjudication of this dispute an industrial tribunal with Mr Ali Hassan as the sole member was consti tuted
This was reference No 10 of 1954
Then on January 151955 by Notification No IIIDI 160155 L 696 a similar industrial dispute between the same Bata Company and its 29 other workmen was referred by the government of Bihar to the same tribunal
This was reference No I of 1955
While the proceedings in respect of the two references which had been consolidated by the tribunal were pending before it and had made some progress the government of Bihar issued a third Notification No IIIDi 160155 L 13028 on September 17 1955 by which it purported to supersede the two earlier notifications to combine the said two disputes into one dispute to implead the two sets of workmen involved in the two said disputes together to add the Bata Mazdoor Union to the dispute and to refer it to the adjudication of the industrial tribunal of Mr Ali Hassan as the sole member
The dispute thus referred to the 
tribunal was  Whether the dismissal of the 60 workmen mentioned in annexure B  was justified or unjustified and to what relief if any those workmen are entitled  On receipt of this notification the tribunal passed an 1194 order on September 19 1955 cancelling the hearing of the two prior references which had been fixed for October 3 1955 and directing that the files of the said references should be closed
The Bata Company and its workmen then filed two separate applications before the High Court of Judicature at Patna under articles 226 and 227 of the Constitution and prayed that the last notification should be quashed as being illegal and ultra vires
These
two applications were numbered as M J C Nos 546 and 590 of 1955 respectively
On April 4 1956 the High Court held that the government of Bihar had no power or authority to supersede the earlier notifications allowed both the applications and issued a writ in the nature of certiorai quashing the impugned notification of September 17 1955 and also a writ in the nature of mandamus requiring the industrial tribunal to proceed expeditiously with reference cases Nos 10 of 1954 and I of 1955 and to bring them to a conclusion in accordance with law
Against this order the government of Bihar applied for and obtained leave from this court on June 26 1956
That is how the two present appeals have come for disposal before US
In both the appeals the appellant is the State of Bihar and
the respondents are the Bata Company and its workmen respectively
On behalf of the appellant it is urged before us that the High Court at patna was in error in holding that the government of Bihar had no power or authority to set aside the two earlier notifications and to refer the dispute in question for adjudication to the industrial tribunal under section 101 of the Act
In order to appreciate the background of the impugned notification it would be relevant to mention some material facts
It appears that the workmen of the company s factory at Digha formed a union at the close of the last World War
The president of the said union was Mr John and its general secretary was Mr Fateh Narain Singh
On June 22 1947 the company entered into a collective agreement with the said union and by mutual consent the Standing Orders and 1195 Rules certified under the Industrial Employment Standing Orders Act of 1946 were settled
The union was recognised as the sole and exclusive collective bargaining agency for the workmen of the company
Towards the end of 1954 two groups of the union were formed and rivalry grew between them
One group was led by Mr Fateh Narain Singh and other by Mr Bari
On January 22 1954 the union  through its general secretary Mr Fateh Narain Singh served on the company a  slow down notice  with effect from February 24 1954 and on February 6 1954 Mr Bari purporting to act as the president of the union asked his followers to go on strike as from February 23 1954
The demands made by Mr Fateh Narain Singh gave rise to conciliation proceedings under the Act and ended in the settlement which was duly recorded on February 8 1954
In spite of the said settlement some workmen including the sixty workmen in question who supported Mr Bari went on an illegal strike on February 23 1954 although as members of the union they were bound by the settlement
The majority of the workmen were opposed to the strike and in fact on February 16 1954 a letter signed by 500 workmen who dis associated themselves from the strike was received by the company
The company was requested to make suitable arrangements to enable these workmen to attend their duties
The strike succeeded only partially because out of 854 workmen employed in the company s factory at Digha nearly 500 workmen attended the factory in spite of the threats of the strikers
The strike was declared illegal by the appellant under section 23 c of the Act
Subsequently the company served the strikers with charge sheets and in the end 274 workmen including the sixty workmen in question were dismissed from service by the company
Thereafter the union entered into negotiations with the company as a result of which it was agreed that 110 strikers would be employed by the company in the same manner in which 76 strikers had already been employed by it
It was further 152 1196 agreed that 30 strikers were to remain dismissed and not considered eligible for employment or for any benefits
In regard to the remaining 30 strikers the company agreed to consider their cases later on for reemployment
During these negotiations the sixty workmen in question did not make any demand to the management for reinstatement either individually or collectively
nor was their case raised by any other Organisation or body of workmen
In the result so far as the union was concerned the dispute regarding the whole body of strikers who had been dismissed by the company came to an end by virtue of the agreement between the company and the union
Notwithstanding this agreement Mr Sinha the conciliation officer wrote to the company on September 3 1954 that he desired to hold conciliation proceedings inrespectofsome of the dismissed workmen
The dispute raised by the sixty workmen was not sponsored by any Organisation or body of workmen
In fact the secretary of the union wrote to the Commissioner of Labour on September 22 1954 that he strongly objected to the alleged dispute of sixty workmen being referred to adjudication
It was under these circum stances that the appellant issued the first two notifica tions on October 8 1954 and January 15 1955
On May 30 1955 the union made an application before the tribunal alleging that the  majority of the workmen were opposed to the reinstatement of the sixty workmen in question and consequently it had interest in the proceedings before the tribunal
Two applications were made before the tribunal by other workmen to be joined to the proceedings on the ground that they were opposed to the reinstatement of the workmen whose cases were pending before the tribunal
All these applications were rejected by the tribunal
It would appear that Mr Fateh Narain Singh then moved the Department of Labour Government of Bihar and it was apparently pursuant to the representation made by him that the third notification was issued by the appellant superseding the first two notifications and referring the whole dispute afresh to the 1197 industrial tribunal with the union of Mr Fateh Narain Singh added as a party to the proceedings
That in brief is the genesis of the impugned notification in the present case
Dr Bannerjee for the appellant has urged before us that in dealing with the question about the powers of the appropriate government under section 101 of the Act it would be necessary to bear in mind the facts which led to the cancellation of the first two notifications and the issue of the third impugned notification
He contends that in issuing the third notification the appellant has acted bona fide and solely in the interests of fair play and justice  it came to the conclusion that it was necessary that the union should be heard before the disputes in question are
adjudicated upon by the Industrial Tribunal and that it would be more convenient and in the interest of industrial peace and harmony that the dispute should be referred to the tribunal in a more comprehensive and consolidated form bringing before the tribunal all the parties interested in it
In our opinion the bona fides of the appellant on which reliance is placed by Dr Banerjee are really not relevant for determining the appellant s powers under section 101 of the Act
If the appellant has authority to cancel the notification issued under section 101 and if the validity of the cancelling notification is challenged on the ground of mala fides it may be relevant and material to inquire into the motives of the appellant
But if the appellant has no authority to cancel or revoke a notification issued under section 101 the bona fides of the appellant can hardly validate the impugned cancellation
That is why we think the appellant cannot base its arguments on the alleged bona fides of its conduct
it is conceded by Dr Bannerjee that the Act does not expressly confer any power on the appropriate government to cancel or supersede a reference made under section 101 of the Act
He however argues that the power to cancel or supersede such a reference must be hold to be implied and in support of his argument he relies on the provisions of section 21 of the X of 1897
Section 21 provides 1198 that  where by any Central Act or Regulation a power to issue notifications orders rules or bye laws is conferred then that power includes a power exercisable in the like manner and subject to the like sanction and conditions if any to add to amend vary or rescind any notifications orders rules or byelaws so issued 
It is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject matter context and the effect of the relevant provision of the said statute
In other words it would be necessary to examine carefully the scheme of the Act its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by section 21 the appellant s contention is justified that the power to cancel the reference made under section 101 can be said to vest in the appropriate government by necessary implication
If we come to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said rule of construction the appellant would not be entitled to invoke the assistance of the said section
We must therefore proceed to examine the relevant provisions of the Act itself
It is clear that the policy of the Act is to secure and preserve good relations between the employers and their workmen and to maintain industrial peace and harmony
It is with this object that section 3 of the Act contemplates the establishment of the Works Committees whose duty it is to promote measures for securing and preserving amity and good relations between the employers and the workmen
If the Works Committee is unable to settle the disputes rising between the employer and his workmen conciliation officers and the boards of conciliation offer assistance to the parties to settle their disputes
Sections 3 4 5 12 and 13 refer to the working of this machinery contemplated by the Act
It is only where the conciliation machinery fails to bring about settlement between the parties that the Act contemplates compulsory adjudication of the industrial disputes by labour courts and 1199 tribunals as the last alternative
The appropriate government is authorised to constitute labour courts and tribunals under and subject to the provisions of a 7 and section 7A respectively
It is in respect of the compulsory adjudication that under section 10 the appropriate government is given wide discretion to decide whether or not the dispute between the employer and his employees should fie referred to the board court or  tribunal
Section 10 1 d provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the dispute to a tribunal for adjudication
The condition precedent for the reference to the industrial tribunal is that the appropriate government must be satisfied that an industrial dispute exists or is apprehended
It is not in every case where the parties allege the existence of an industrial dispute that a reference would be made under section 10 1 it is only where the test of subjective satisfaction of the appropriate government is satisfied that the reference can be made
Thus it is clear that the appropriate government is given an important voice in the matter of permitting industrial disputes to seek adjudication by reference to the industrial tribunal
But once an order in writing is made by the appropriate government referring an industrial dispute to the tribunal for adjudication under section 10 1 proceedings before the tribunal are deemed to have commenced and they are deemed to have concluded on the day on which the award made by the tribunal becomes enforceable under section 17A
This is the effect of section 203 of the Act
This provision shows that after the dispute is referred to the tribunal during the continuance of the reference proceedings it is the tribunal which is seized of the dispute and which can exercise jurisdiction in respect of it
The appropriate government can act in respect of a reference pending adjudication before a tribunal only under section 1405 of the Act which authorises it to add other parties to the pending dispute subject to the conditions mentioned in the said provision
It would therefore be reasonable to hold that except for cases 1200 falling under section 105 the appropriate government stands outside the reference proceedings which are under the control and jurisdiction of the tribunal itself
Even after the award is made it is obligatory on I the appropriate government under section 171 to publish the said award within a period of thirty days from the date of its receipt by the appropriate government Sub section 2 of section 17 says that subject to the provisions of section 17A the award published under 1 of section 17 shall be final and shall not be called in question by any court in any manner whatsoever Section 193 provides that an award shall subject to the other pro visions of section 19 remain in operation for a period of one year from the date on which it becomes emforceable under section 17A
It is true that as
17A and 19 confer on the appropriate government powers to modify the provisions of the award or limit the period of its operation but it is unnecessary to refer to these provisions in detail
The scheme of the provisions
in Chapters III and IV of the Act would thus appear to be 
to leave the reference proceedings exclusively within the jurisdiction of the tribunals constituted under the Act and to make the awardsof such tribunals binding between the parties subject to the special powers conferred of the appropriate government under as
17A and 19
The appropriate government undoubtedly has the initiative in the matter
It is only where it makes an order in writing refering an industrial dispute to the adjudication of the tribunal that the reference proceedings can commence but the scheme of the relevant provisions would prima facie seem to be inconsistent with any power in the appropriate government to cancel the reference made under section 10 1
The power claimed by the Happening to cancel a reference made unders
101 seems also to be inconsistent with some other provisions of the Act
The proviso to section 10 lays down that the appropriated government shall refer a dispute relating to the public utility service when a notice under section 22 has been given unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to refer the dispute
This proviso indicates that in regard 1201 to a dispute relating to public utility concerns normally the government is expected to refer it for adjudication
In such a case if  the government makes the reference it is difficult to appreciate that it would be open to the government pending the proceedings of the said reference before the Industrial Tribunal to cancel the reference and supersede its original order in that behalf
Section 10 sub section
2 deals with the case where  the parties to are industrial dispute apply to the appropriate government in the prescribed manner either jointly or separately for a reference of the dispute to the appropriate authority and it provides that in such a case if the appropriate government is satisfied that the persons applying represent the majority of each party it shall make the reference accordingly
ln such a case all that the government has to satisfy itself about is the fact that the demand for reference is made by the majority of each party and once this condition is satisfied the government is under obligation to refer the dispute for industrial adjudication
It is inconceivable that in such a case the government can claim power to cancel a reference made under section 102
Indeed in the course of his arguments Dr Banerjee fairly conceded that it would be difficult to sustain a claim for an implied power of cancellation in respect of a reference made under section 102
There is another consideration which is relevant in dealing with this question
Section 12 which deals with the duties of the conciliation officer provides in substance that the conciliation officer should try his best to bring about settlement between the parties
If no settlement is arrived at the conciliation officer has to make a report to the appropriate government as provided in sub section
4 of section 12
This report must contain a full statement of the relevant facts and circumstances and the reasons on account of which in the opinion of the officer the settlement could not be arrived at
Sub section 5 then lays down that if on a consideration of the report the appropriate government is satisfied that there is a case for reference to a board labour court tribunal or national tribunal it may make such a reference
Where the appropriate 1202 government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor
This provision imposes on the appropriate government an obligation to record its reasons for not making a reference after receiving a report from the conciliation officer and to communicate the said reasons to the parties concerned
It would show that when the efforts of the conciliation officer fail to settle a dispute on receipt of the conciliation officer s report by the appropriate government the government would normally refer the dispute for adjudication  but if the government is not satisfied that a reference should be made it is required to communicate its reasons for its decision to the parties concerned
If the appellant s argument is accepted it would mean that even after the order is made by the appropriate government under section 101 the said government can cancel the said order without giving any reasons
This position is clearly inconsistent with the policy underlying the provisions of section 125 of the Act
In our opinion if the legislature had intended to confer on the appropriate government the power to cancel an order made under section 101 the legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations on the exercise of the said power
It is however urged that if a dispute referred to the industrial tribunal under section 101 is settled between the parties the only remedy for giving effect to such a compromise would be to cancel the reference and to take the proceedings out of the jurisdiction of the industrial tribunal
This argument is based on the assumption that the industrial tribunal would have to ignore tile settlement by the parties of their dispute pending before it and would have to make an award on the merits in spite of the said settlement
We are not satisfied that this argument is well founded
It is true that the Act does not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of O XXIII r 3 of the Code of Civil Procedure
But it would be very 1203 unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties
We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary object of this Act
Settlements reached before the conciliation officers or boards are specifically dealt with by sections 122 and 133 and the same are made binding under section 18
There can therefore be no doubt that if an industrial dispute before a tribunal is amicably settled the tribunal would immediately agree to make an award in terms of the settlement between the parties
It was stated before us at the bar that innumerable awards had been made by industrial tribunals in terms of the settlements between the parties
In this connexion we may incidentally refer to the provisions of section 7 2b of the Industrial Disputes Appellate Tribunal Act 1950 XLVIII of 1950 which expressly refer to an award or decision of an industrial tribunal made with the consent of the parties
It is true that this Act is no longer in force but when it was in force in providing for appeals to the Appellate Tribunal set up under the said Act the legislature had recognised the making of awards by the industrial tribunals with the consent of the parties
Therefore we cannot accept the argument that cancellation of reference would be necessary in order to give effect to the amicable settlement of the dispute reached by the parties pending proceedings before the industrial tribunal
In this connexion it may be relevant to refer to some other provisions of the Act which impose restrictions on the parties luring the pendency of the reference proceedings
Under section 103 where an industrial dispute has been referred to an industrial tribunal the appropriate government may by order prohibit the continuance of any strike or lock out in connexion with such dispute which may be in existence on the date of the reference
Similarly under section 33 during the pendency of the proceedings before an industrial tribunal no employer shall a in regard to any matter connected with the dispute alter to the prejudice 153 1204 of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings or b for any misconduct connected with the dispute discharge or punish whether by dismissal or otherwise any workmen concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending
Failure to comply with the provisions of section 331 is made punishable under section 31 of the Act
These provisions show that during the pendency of the proceedings before the industrial tribunal the parties to the dispute are expected to maintain status quo and not to take any action which would disturb industrial peace or prejudice a fair trial before the industrial tribunal
If the power to cancel a reference made under section 10 1 is held to be implied the proceedings before the industrial tribunal can be terminated and superseded at any stage and obligations and liabilities incurred by the parties during the pendency of the proceedings would be materially affected
It is because all these provisions are intended to operate as a self contained Code governing the compulsory adjudication of industrial disputes under the Act that section 15 enjoins upon the industrial tribunals to hold their proceedings expeditiously and to submit their awards as soon as it is practicable on the conclusion of the proceedings to the appropriate government
Thus time is usually of essential importance in industrial adjudications and so the Act imposes an obligation on the industrial tribunals to deal with their proceedings as expeditiously as possible
If the appropriate government has by implication the power to cancel its order passed under section 101 the proceedings before the industrial tribunal would be rendered wholly ineffective by the exercise of such power
Apart from these provisions of the Act on general principles it seems rather difficult to accept the argument that the appropriate government should have an implied power to cancel its own order made under section 101
If on the representation made by the employer or his workmen the appropriate government considers the matter fully and reaches the conclusion that an 1205 industrial dispute exists or is apprehended and then makes the reference under section 101 there appears to be no reason or principle to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by itself In dealing with this question it is important to bear in mind that power to cancel its order made under section 101 which the appellant claims is an absolute power it is not as if the power to cancel implies the obligation to make another reference in respect of the dispute in question  it is not as if the exercise of the power is subject to the condition that reasons for cancellation of the order should be set out
If the power claimed by the appellant is conceded to the appropriate government it would be open to the appropriate government to terminate the proceedings before the tribunal at any stage and not to refer the industrial dispute to any other industrial tribunal at all
The discretion given to the appropriate government under section 101 in the matter of referring industrial disputes to industrial tribunals is very wide but it seems the power to cancel which is claimed is wider still and it is claimed by implication on the strength of section 21 of the 
We have no hesitation in holding that the rule of construction enunciated by section 21 of the in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of section 101 of the 
It would now be necessary to refer to the decisions to which our attention was invited in the course of arguments
For the appellant Dr Bannerjee has strongly relied on the decision of this court in Minerva Mills Ltd vs Their Workmen 1
He contends that Mahajan J who delivered the judgment of the court has expressly observed in his judgment that from the relevant provisions of the Act It could not be held that it was implicit in section 7 that the government could not withdraw a dispute referred to a tribunal or make the appointment of a tribunal for a limited period of time
 The argument is that this observation shows that the government can withdraw a pending reference from one tribunal and refer it to another tribunal and 1  1206 according to the appellant that is exactly what has been done by it in the present case
In the case of Minerva Mills Ltd 1 however the question about the implied power of the appropriate government to cancel its order made under section 10 did not arise for consideration
The point which was raised by the appellant was that the government had no power to appoint a tribunal for a limited duration  and the argument was that if industrial disputes are referred to a tribunal all the said disputes must be determined by the said tribunal and not by any other tribunal notwithstanding that the appointment of the original tribunal was for a limited duration
The first tribunal in the said case had been appointed on June 15 1952 and some industrial disputes had been referred to it
The tribunal was appointed for one year
During its tenure the tribunal disposed of some of the disputes referred to it but four disputes still remained undisposed of
For disposing of these references a second tribunal was appointed on June 27 1952
The validity of the constitution of the second tribunal was impugned by the appellant and it was urged that it is the first tribunal alone which can and must try the remaining disputes
This argument was rejected by this court and it was held that it was perfectly competent to the appropriate government to appoint a tribunal for a limited duration
It would be noticed that in this case there was no question of cancelling an order made under section 101
The said order remained in force and the only step which the government took was to make an order constituting a fresh tribunal to dispose of the references which had not been adjudicated upon by the first tribunal
It was on these facts that this court took the view that it was competent to the government to refer the said remaining disputes for adjudication to the second tribunal
Strictly speaking there was no occasion to withdraw any dispute from the first tribunal the first tribunal had ceased to exist and so there was no tribunal which could deal with the remaining disputes already referred under section 101
That is why the government purported to appoint a second tribunal to deal with the said dispute
In our opinion the decision in the Minerva Mills Ltd 1 cannot be 1  1207 cited in support of the proposition that the appellant has power to cancel the order of reference made by it under section 101
The decision of this court in Strawboard Manufacturing Co Ltd vs Gutta Mill Workers  Union 1 is then cited in support of the proposition that the appellant has implied power to cancel its order made under section 101
In this case the government of the State of Uttar Pradesh had referred an industrial dispute to the Labour Commissioner on February 18 1950 and had directed the Commissioner to make his award not later than April 5 1950
While the proceedings were pending before the Commissioner two additional issues were referred to him
Ultimately the award was made on April 13 and it was sought to be validated by the issue of a notification by the Governor of Uttar Pradesh on April 26 by which the time for making the award was retrospectively extended up to April 30 1950
This court held that the notification retrospectively extending the period to make the award was invalid
Since the award had been made beyond the period prescribed by the original notification it was void
It is however argued that in dealing with the question of the validity of the award it was observed by Das J as he then was  In the circumstances if the State Government took the view that the addition of those two issues would render the time specified in the original order inadequate for the purpose it should have cancelled the previous notification and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award
The State Government did not adopt that course As we read the judgment we are not inclined to accept the appellant s assumption that the passage just cited expresses the view accepted by this court
Read in its context the said passage appears to state the argument urged by Dr Tek Chand on behalf of the appellant
The appellant appears to have urged in substance that if the State Government thought that the addition of new issues referred to the Commissioner by subsequent notification made it difficult for him to submit his award 1  1208 within the specified time the local government should have cancelled the original reference made a fresh comprehensive reference and given him requisite time for making his award
Since that was not done the position could not be rectified by the issue of the impugned notification retrospectively extending the time originally fixed
It is in connexion with this argument that the statement on which reliance is placed was apparently made by the learned counsel for the appellant
If that be the true position no argument can be based on these observations
It is conceded that the question about the power of the appropriate government to cancel an order of reference made under section 101 did not arise for discussion or decision in this case
The third decision to which reference has been made in support of the appellant s case is the decision of Bishan Narain J in The Textile Workers  Union Amritsar vs The State of Punjab and others 1
Bishan Narain J appears to have taken the view that the power to cancel an order of reference made under section 101 can be implied by invoking section 21 of the  because he thought that by the exercise of such a power the appropriate government may be able to achieve the object of preserving industrial peace and harmony
The judgment shows that the learned judge was conscious of the fact that  this conclusion may have the effect of weakening a trade union s power of negotiation and may encourage the individual firms to deal directly with its their own workmen but it is a matter of policy with which I have nothing to do in these proceedings
 In dealing with the present question we would not be concerned with any questions of policy
Nevertheless it may be pertinent to state that on the conclusion which we have reached in the present case there would be no scope for entertaining the apprehensions mentioned by the learned judge
As we have already indicated the scheme of the Act plainly appears to be to leave the conduct and final decision of the industrial dispute to the industrial tribunal once an order of reference is made under section 101 by the appropriate government
We must accordingly hold that Bishan Narain J was 1 AIR 1957 Pun
1209 in error in taking the view that the appropriate government has power to cancel its own order made under section 101 of the Act
The decision of the Kerala High Court in Iyyappen Mills Private Ltd Trichur vs State of Travancore Cochin 1 is not of much assistance because in this case the learned judges appear to have taken the view that the first tribunal before which the industrial dispute was pending had ceased to exist at the material time when the dispute was referred by the local government for adjudication to the second tribunal
If that be the true position the conclusion of the learned judges would be supported by the decision of this court in Minerva Mills Ltd 2
Then in regard to the observations made by Sinha J in Harendranath Bose vs Second Industrial Tribunal 3 it is clear that the learned judge was in error in seeking to support his view that the appropriate government can cancel its order made under section 101 by the observations found in the judgment of this court in Strawboard Manufacturing Co Ltd 4
We have already stated that the said observations are really a part of the arguments urged by the appellant before this court in that case and are not obiter observations made by the learned judge
The last case to which reference must be made is the decision of Rajamannar C J and Venkatarama Aiyar J in South India Estate Labour Relations Organisation vs The State of Madras 5
In this case the Madras Government had purported to amend the reference made by it under section 10 of the Act and the validity of this amendment was challenged before the court
This objection was repelled oil the ground that it would be open to the government to make an independent reference concerning any matter not covered by the previous reference
That it took the form of an amendment to the existing reference and not an additional reference is a mere technicality which does not merit any interference in the writ proceedings
The objection was one of form and was without substance
It would thus appear that the question before 1 2  3 4  5 1210 the court was whether the appropriate government can amend the reference originally made under section 10 so far as the new matters not covered by the original reference are concerned and the court held that what the appropriate government could have achieved by making an independent reference it sought to do by amending the original reference itself
This decision would not assist the appellant because in the present case we are not considering the power of the govern ment to amend or add to a reference made under section 101
Our present decision is confined to the narrow question as to whether an order of reference made by the appropriate government under section 101 can be subsequently cancelled or superseded by it
We must therefore confirm the finding made by the learned judges of the High Court at Patna that the notification issued by the appellant cancelling the first two notifications is invalid and ultra vires
That takes us to the question as to the form in which the final order should be passed in the present appeals
The High Court has purported to issue a writ of certiorari against the State Government quashing the impugned notification
It has however been held by this court in The State of Madras vs C P Sarathy 1 that in making a reference under section 101 tile appropriate government is doing an administrative Act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character
That being so we think it would be more appropriate to issue a writ of mandamus against the appellant in respect of the impugned notification
We would also like to add that since the first two industrial disputes referred by the appellant under the first two notifications have remained pending before the tribunal for a fairly long time it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible
In the result the appeals fail and must be dismissed with costs
Appeals dismissed


Summary:
The Board of Governors of the respondent school entered into a contract for the grant of permanent lease of immova ble property of the school to the petitioner builder
An association of the old students of the school resisted the agreement before the High Court but a learned Single Judge accorded sanction which was later stayed
The petitioner preferred an appeal before the Division Bench of the High Court which made certain interim directions while disposing the appeal
Hence this appeal by the petitioner
During the pendency of the appeal the parties entered into a compromise which was signed on behalf of all the parties but the compromise deed was filed in this Court after a lapse of three years
The Association of the old students resisted the compromise on the ground i that there was a lapse of three years between the date of signing the compromise and its filing in the court ii the Presi dent of the Old Association of students had no authority to enter the compromise
Disposing the appeal this Court HELD 1 If the compromise is genuine and lawful the delay in presentation in court could at the most be in the realm of equity and would not be otherwise material
In the instant case the resolution of the Board of the Association clarifies the position that all parties had agreed to the compromise and it was intended to be presented before this Court for permission to enter into compromise
The President of the Old Association of Students had been authorised to associate himself for the purpose
The agreement has been signed by the parties and is not unlawful
The compromise is therefore in accordance with the provisions of Order XXIII rule 3 of the Code of Civil Procedure and can be acted upon
448F H 446 2
Before the compromise is accepted it is for the court to be satisfied that the terms are in the interests of the Trust
449A 21 In the instant case under the agreement forming the subject matter of compromise the school would have space available for expansion in the near future
It is not in the interest of the school to reject the agreement on the ground that there was scope of receiving better offers if adver tisement was made
449E C 22 It is appropriate that the compromise should be accepted with certain variations viz availability of extra area to the school escalation of the ground rent and provi sion for automatic escalation of ground rent of 10 once in every 10 years
The permission is accordingly accorded to the Board of Governors to enter into compromise on behalf of the school
449E  449H 450A B