Civil Appeal No 1827 of 1969
Appeal by Special Leave from the Judgment and order dated the 28th November 1968 of the Orissa High Court in OJC No 152 of 1964
FS Nariman A G Meneses Sharad Manohar and J B Dada chanji for the Appellant
ST Desai and M N Shroff  and R N Sachthey for Respondents 1 and 5
Santosh Chatterjee and G section Chatterjee for Respondent No 4
The Judgment of the Court was delivered by ALAGIRISWAMI J
The question of bonus for 16000 workmen for the years 1958 59 and 1959 60 is still being fought out on preliminary points and this is the second time the matter has come to this Court
The earlier decision is reported in  Gammon vs Industrial Tribunal Bhubaneshwar Orissa  Ors1
In August 1957 the Hindustan Steel Ltd the 4th respondent in the appeal hereinafter called the company and the appellant a partnership of a West German company and an Indian company hereinafter called the contractor entered into a contract for execution of the foundation and civil engineering work of the Hot and Cold Rolling Mills at Rourkela including the purification and other civil engineering work of the Hot and with the water supply to the Rolling Mills
The contract was a cost contract with a target sum plus fixed overheads and fee that is the company was to pay to the contractor all costs of construction and in addition pay fixed overhead or the head office general expenses of the 1  670 contractor plus a fixed fee
The target sum for the work was Rs 66294000
The overheads were DM 2800000 plus Rs 2120000 and the fee of Rs 6200000 
The work was to be carried out as detailed in the drawings bills of quantities specifications and other written orders issued or to be issued by the company
All payments in respect of wages and salaries and connected payments made two persons engaged upon the work as may be approved by the company comprising wages of all operatives as well as all other payments connected with wages were to be paid by the company
Any increase beyond the initial rates specified in Enclosure III to the contract was to be subject to the approval of the company and such approval was to be taken in respect of categories and not individuals
Emoluments of site supervisory staff as well as all other payments connected therewith were also to be paid by the company
Payments made to statutory schemes in connection with sickness or accident or provident fund or pension or other like schemes to the above categories payments of overtime and additional remuneration for Sunday holiday or night work etc and payments for leave and traveling cost were all to be made by the company
It was also provided that the count of any other expenditure was to be admitted only on satisfactory proof being given by the contractor that such expenditure was necessary in connection with the preparation and execution of the work
The company was to open an imprest account of Rs 3000000 and the contractor was to draw on the account to cover his day to day requirements for the work
The imprest was to be increased or decreased from time to time depending on the amount required by the contractor to do the work
The contractor was to submit fortnightly cash account covering the expenditure incurred from the imprest account and the company was to recoup the amounts covered by such account within seven working days
Once in three months the contractor was to be paid a part of the fixed amount of overheads pro rata to the target cost of work done during the preceding three months
Once in six months he was to be paid three fourths of the fee proportionate to the target cost of the work done in the preceding
half year
Enclosure Ill also set out the rate of wages for unskilled labourers khalasi mason fitter or carpenter
If the contractor completed the work prior to the 30th September 1960 he was to be paid exclusive of such sums as may be due to or from him a bonus equivalent to Rs 200000 for every complete month by which the actual completion of the work precedes the 30th September 1960
The terms of the contract have been set out at some length as they have a relevance to the question of bonus payable to the workers because the question now agitated before this Court is that the Industrial Tribunal should be asked to decide who is to Pay the bonus if bonus is payable to the workmen the contractor or the company
It would be noticed from the provisions of the contract set out above that all payments to labour were to be made by the company
The contract contemplates payment of traveling allowance payment in respect of sickness accident provident fund pension overtime additional remuneration for Sunday holiday or right work etc
It has even mentioned the rate of wages and is thus fairly comprehensive
There is of course no mention about bonus
Now if the contractor 671 has to pay a higher rate of wages than that found in Enclosure III because of the conditions in the labour market naturally the contractor cannot be expected to pay it from out of his funds or the payments he was to receive in pursuance of the contract
This being a contract in which the company is to pay for labour as well as for materials any increase in the cost of those items cannot be borne by the contractor who was to be paid only a fixed sum towards its remuneration
As the question of bonus is not mentioned in the contract the question arises as to who is to pay the bonus in case bonus is found payable to the workmen
We express no opinion on that point
But it appears to us that the company is adopting an ostrich like policy in trying to avoid being made a party to the reference before the Industrial Tribunal
if it should ultimately be held that bonus is payable and the company is liable to pay it it should do its best even from this stage to fight the question of liability to pay bonus as well as the quantum
What is called a tripartite agreement seems to have been entered into between the workmen and the appellant in the presence of the Labour Commissioner on 12th June 1960
That was natural as the appellant it was that employed labour
But that by itself does not decide the question who is to pay the bonus
Under that agreement the appellant agreed to the payment of bonus in principle subject to the condition that they get the bonus from the company
The quantum of bonus and exact date from which the bonus was payable was not however indicated
It was also stated that when bonus was received by the management it shall notify the fact to the workers and that the union may raise this as a point of dispute when it would deem it appropriate On 15th June 1960 the labour union appears to have written a letter to the Labour Commissioner of orissa raising a dispute for adjudication regarding bonus The union mentioned that they had also written a number of letters to the appellant as well as the company but either of them had decied the issue
They therefore served a notice of strike
The Labour Commissioner wrote to the Government on 17 10 60 about the dispute and mentioned that the appellant had agreed to pay bonus if the company paid it
He also mentioned the fact that the appellant in reply to the letters from the workmen had stated that they had not come to any final decision in the matter
On the ground that unless something was done there will be a strike causing complete dislocation of work of the company he suggested that the following issue may be considered for reference to the Industrial Tribunal Whether the workers of Hochtief Gammon are entitled to any bonus  If so what should be the quantum  He proceeded to say that if this question was finally decided it would also serve as a guiding principle for other contractors as similar demands for payment of bonus from workers were being received
It would be noticed that though the appellant s stand was that they would pay the bonus if it were given by the company the Labour Commissioner did not suggest that the question as to the party liable to pay the bonus whether it was the appellant or the company be referred for 672 adjudication
His anxiety was that the work of the company should not A be dislocated
He did not apply his mind to the question of the party liable to pay the bonus
Naturally the Government also did not
The Government therefore referred the following issue for adjudication Whether the workers of Ms Hochtief Gammon
Civil Engineers and Contractors Rourkela are entitled to any bonus and if so what should be the quantum On this a notice seems to have been served on the company and curiously enough the company said that the appellant did not complete the work as set out in the Memorandum of Agreement and hence no bonus was due to the contractors and that therefore they were not a necessary party
This bonus as the terms of the contract set out earlier would show
has nothing to do with the bonus payable to the workmen
The appellant in their written statement pointed out that under the terms of the contract the company had to bear all expenditure with reference to labour all payments in respect of wages salaries and other connected payments made to persons engaged in the works that it was also responsible to make payments to statutory schemes in respect of all workmen and that they themselves were only paid a stated fee for professional services rendered to them and therefore no demand can be raised by the workmen who are engaged by the contractor against the contractor and such a demand is unsustainable in law
They then gave reasons why the workmen were not entitled to any bonus from them
It is not necessary to set out those reasons at length
We have already referred to the stand of the company
As would be apparent from the decision of this Court on the earlier occasion which we shall set out later the Tribunal could not have decided this question in view of the terms of reference made to it
Thereafter the appellant filed
an application under section 183 b of the Industrial Disputes Act praying that for a proper adjudication of the issue referred to the Tribunal it was necessary to bring on record the company as a party to the proceedings
They pointed out that any amount payable to the labourers engaged by the contractors for what soever reason was a contract expenditure within the meaning of the term contract and payable by the company as it was entirely responsible for payment of all remuneration to the workmen and all expenditure incurred by reason of any demand put forward by the workmen in connection with the works was debitable to the contract and payable by the company
This application was rejected
Thus the stand of the appellant as to the party liable to pay the bonus was never in doubt
The appellant thereupon filed a petition before the High Court of orissa praying that the order of the Tribunal should be set aside
that petition also having been dismissed an appeal was filed before this Court by special leave
The relevant portion of the judgment of this Court is found at page 605 19647 SCR The next contention raised by Mr Chatterjee is that Ms Hindustan Steel Ltd is a necessary party because it is the said concern which is the employer of the respondents and not the appellant
In other words this contention is that 673 though in form the appellant engaged the workmen whom the respondent union represents the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of orissa it is necessary that the principal viz Ms Hindustan Steel Ltd Ought to be added as a party
In dealing with this argument it is necessary to bear in mind the fact that the appellant does not dispute the respondent Union s case that the workmen were employed by the appellant
It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed
Where the appropriate Government desires that the question as to who the employer is should be determined it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers
Such a course has not been adopted in the present proceedings and so it would not possible to hold that the question as to who is the employer as between the appellant and Ms Hindustan Steel Ltd is a question incidental to the industrial dispute which has been referred under section 101d
This dispute is a substantial dispute between the appellant and Ms Hindustan Steel Ltd and cannot be regarded as incidental in any sense and so we think that even this ground is not sufficient to justify the contention that Ms Hindustan Steel Ltd is a necessary party which can be added and summoned under the implied powers of the Tribunal under section 183b
 lt would be noticed that before this Court what was admitted was that the appellant had employed the workmen but the question as to who was the employer in relation to those workman was the main question at issue
That was why this Court pointed out that it would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed
As that had not been done this Court pointed out that it would not be possible to hold that the question as to who was the employer as between the appellant and the company was a question incidental to the industrial dispute which had been referred under section 101d as it was a substantial dispute between the appellant and the company
Apparently taking the cue from the observations of this Court the appellant filed a writ petition out of which this appeal arises
But before doing so the appellant had filed an application before the State Government asking them to modify the earlier reference to the Industrial Tribunal by adding the company as a party to the reference and an additional clause as under If bonus is payable who is the employer and who is responsible for payment of the bonus to the workmen They pointed out in that application that the company was entirely responsiblele for payment of wages and connected payments and all 674 other remuneration of any kind to the workmen that for enabling the appellant to make payments to the labourers engaged for such work on behalf of the company an imprest of Rs 3000000 was given to them out of which the payments were made that the appellant got only a fee that if any bonus becomes payable it was the person who pays wages that has to pay the bonus
Thereafter they also asked for a personal hearing
To this the reply of the Government was as follows With reference to their petition dated 20 5 64 on the above subject the undersigned is directed to say that after due
Consideration of the matter the Government do not find any materials on the basis of the petition to include Hindustan Steel Ltd Rourkela as a party in the above case
 It would be noticed that in the petition the appellant wanted not only that the company should be made a party but also that another issue must be referred to the Tribunal for adjudication
They had given reasons as to why the company should be included as a party
They had in their petition included the paragraph which we have extracted above from this Court s judgment
It is apparent from their reply that the Government had not applied their mind to the facts placed before them
There was at least an arguable case on the point as to who was liable to pay the bonus and in that case the company would have been a necessary and appropriate party
Even if the Government thought that the company was not a necessary party the question as to who was liable to pay the bonus was a very relevant question and that made the company a necessary or at least a proper party
The attitude of the appellant had throughout been that their contract was a cost contract that the company had to pay labour and while they have employed the workmen the employer was really the company
That contention may or may not be upheld by the Tribunal
Ultimately if the Tribunal should hold that the appellant is the party responsible for payment of bonus the question as between the company on the one hand and appellant on the other may have to be decided by arbitration as provided in the contract between them or otherwise
It appears to us therefore that not only was this an appropriate question to be referred to the Industrial Tribunal for adjudication but even the company should be interested in getting itself impleaded as a party so as to put forward any contention which it may decide to put forward as regards the question whether bonus was payable and if so the quantum thereof as also the question as to who would be liable to pay the bonus instead of adopting as we have said earlier an ostrich like policy
The power of the Courts in relation to the orders of the appropriate Government in the matter of referring industrial disputes for adjudication is no longer in doubt
In State of Bombay vs KP Krishnan  Ors
1 it was held It is common ground that a writ of mandamus would lie against the Government if the order passed by it under s10 1 is for instance contrary to the provisions of s101 a to d in the matter of selecting the appropriate authority 1 675 it is also common ground that in refusing to make a reference under section 12S if Government does not record and communicate to the parties concerned its reasons therefore a writ of mandamus would lie
Similarly it is not disputed that if a party can show that the refusal to refer a dispute has not bona fide or is based on a consideration of wholly irrelevant facts and circuit of mandamus would lie
The order passed by the Government under section 125 may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety adequacy or satisfactory character may not be open to judicial scrutiny in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane then the court can Issue and would be justified in issuing a writ of mandamus even in respect of such an administrative order
 In Bombay Union of Journalists vs The State of Bombay1 it was observed The breach of section 25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication but the provision contained in section 101 read with section 125 clearly shows that even where a breach of section 25F is alleged the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts the appropriate Government comes to the conclusion that it would he inexpedient to make the reference it would be competent to it to refuse to make such a reference
If the appropriate Government refuses to make a reference for irrelevant considerations or on extraneous grounds or acts malafide that of course would be another matter in such a case a party would be entitled to move the High Court for a writ of mandamus
 The above are not the only powers of the Courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute which apparently confer on them absolute discretionary powers in this country as well as in England
In England in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non speaking order that is an order which on the face of it did not specify the reasons for the order
Where a speaking order was passed the Courts proceeded to consider whether the reasons given for the order or decision were relevant reasons or considerations
Where there was a non speaking order they used to say that it was like the face of the Sphinx in the sense that it was inscrutable and therefore hold that they could not consider the question of the validity of the order
Even in England the Courts have travelled very far since those days
1   34 676 They on longer find the face of The Sphinx inscrutable
Needless to say that Courts in India which function under a written Constitution which confers fundamental rights on citizens have exercised far greater powers than those exercised by Courts in England where there is no written Constitution and there are no fundamental rights
Therefor the decisions of Courts in England as regards powers of the Courts surveillance  as Lord Pearce calls it or the control which the Judiciary have over the Executive as Lord Upjohn put it indicate at least the minimum limit to which Courts in this country would be prepared to go in considering the validity of orders of the Government or its officers
In that sense the decision of the House of Lords in Padfield vs Minister of Agriculture Fisheries and Food1 is a landmark in the history of the exercise by Courts of their power of surveillance
That decision is well worth a close study but we will resist the temptation to quote more than is absolutely necessary
That was a case where under the provisions of the Agricultural Marketing Act 1958 the Minister had the power to appoint a committee to go into certain questions under
section 19 of that Act but when requested to appoint a committee he refused
In refusing to appoint the committee he had given elaborate reasons for his refusal
It was admitted that the question of referring the complaints to a committee was a matter within the Minister s discretion
It was also argued that he was not bound to give any reasons for refusing to refer a complaint to a committee and that if he gives no reason his refusal cannot be questioned and his giving reasons could not put him in a worse position
It was held by the House of Lords that an order directing the Minister to consider the complaint according to law should be made
It was also held that Parliament conferred a discretion on the Minister so that it could be used to promote the policy and objects of the Act which were to be determined by the construction of the Act and that was a matter of law for the court
It was further held that though there might be reasons which would justify the Minister in refusing to refer a complaint his discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act the court was entitled to interfere
The extracts given below of certain portions of the speeches of the learned Lords can be appreciated in that background
Lord Reid The respondent contends that his only duty is to consider a complaint fairly and that he is given an unfettered discretion with regard to every complaint either to refer it or not to refer it to the committee as he may think fit
The appellant contents that it is his duty to refer every genuine and substantial complaint or alternatively that his discretion is not unfettered and that in this case he failed to exercise his discretion according to law because his refusal was caused or influenced by his having misdirected himself in law or by his having taken into account extraneous or irrelevant considerations
1  677 In my view the appellants  first contention goes too far
There are a number of reasons which would justify the Minister in refusing to refer a complaint
For example he might consider it more suitable for arbitration or he might consider that in an earlier case the committee of investigation had already rejected a substantially similar complaint or he might think the complaint to be frivolous or vexatious
So he must have at least some measure of discretion
But is it unfettered lt is implicit in the argument for the Minister that there are only two possible interpretations of this provision 
either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case
I do not think that is right
It was argued that the Minister is not bound to give any reasons for refusing to refer a complaint to the committee that if he gives no reasons his decision cannot be questioned and that it would be very unfortunate if giving reasons were to put him in a worse position
But I do not agree that a decision cannot be questioned if no reasons are given Lord Hadson The reasons disclosed are not in my opinion good reasons for refusing to refer the complaint to the committee that if he gives no reason his decision cannot be questioned and that it would be very unfortunate if giving reasons were to put him in a worse position
But I do not agree that a decision cannot be questioned if no reason are given
Lord Hodson The reason disclosed are not in my opinion good reason for refusing to refer the complaint seeing that they leave out of account altogether the merits of the complaint itself
The complaint is as the Lord Chief Justice pointed out made by person affected by the scheme and is not one for the consumer committee as opposed to the committee of investigation and it was eligible for reference to the latter
It has never been suggested that the complaint was not a genuine one
It is no objection to the exercise of the discretion to refer that wide issues will be raised and the interests of other regions and the regional price structure as a whole would be affected
It is likely that the removal of a grievance will in any event have a wide effect and the Minister cannot lawfully say in advance that he will not refer the matter to the committee to ascertain the facts because as he says in effect although not in so many words l would not regard it as right to give effect to the report if it were favour able to the appellants Lord Pearce I do not regard a Minister s failure or refusal to give any reasons as a sufficient exclusion of the court s survellance
It was for the Minister to use his discretion to promote Parliament s intention
If the court had doubt as to whether the appellants  complaint was frivolous or repetitive or not genuine or not substantial or unsuitable for investigation or more apt for arbitration it would not interfere
But nothing which has been said in this case leads one 678 to doubt that it is a complaint of some substance which shoukl A properly be investigated by the independent committee with a view to pronouncing on the weight of the complaint and the public interest involved
The fact that the complaint raises wide issues and affects other regions was not a good ground for denying it an investigation by the committee
lt is a matter which makes it very suitable for the committee of investigation with its duty to report on the public interest and its capacity to hear representatives of all the regions Lord Upjohn The Minister in exercising his powers and duties conferred upon him by statute can only be controlled by a prerogative writ which will only issue if he acts unlawfully
Unlawful behaviour by the Minister may be stated with sufficient accuracy for the purposes of the present appeal and here I adopt the clarification of Lord Parker CJ ill the Divisional Court a by an outright refusal to consider
the relevant matter or b by misdirecting himself in point of law or c by taking into account some wholly irrelevant or extraneous consideration or d by wholly omitting to take into account a relevant consideration
There is ample authority for these propositions which were not challenged in argument
In practice they merge into one another and ultimately it becomes a question whether for one reason or another the Minister has acted unlawfully in the sense of misdirecting himself in law that is not merely in respect of some point of law but by failing to observe the other headings I have mentioned
The Minister s main duty is not to consider its suitability for investigation he is putting the cart before the horse
He might reach that conclusion after weighing all the facts but not until he has done so
This introduces the idea much pressed upon your Lordships in argument that he had an unfettered discretion in this matter it was argued means that provided the Minister considered the complaint bona fide that was an end of the matter
Here let it be said at once he and his advisers have obviously given a bona fide and painstaking consideration to the com plaints addressed to him the question is whether the consideration given was sufficient in law
My Lords I believe that the introduction of the adjective unfettered and its reliance thereon as an answer to the appellants  claim is one of the fundamental matters confounding the Minister s attitude bona fide though it be even if the section did contain that adjective I doubt if it would make any difference in law to his powers
But the use of that adjective even in an Act of Parliament can do nothing to unfetter the control which the judiciary have over the executive 679 namely that in exercising their powers the latter must act law fully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives   a decision of the Minister stands on quite a different basis he is a public officer charged by Parliament with the discharge of a public discretion affecting Her Majesty s subjects if he does not give any reason for his decision it may be if circumstances warrant it that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly
 That was a case where the Minister had given elaborate reasons and it was therefore possible for their Lordships of the House of Lords to consider the reasons given by the Minister in elaborate detail and show how he had misdirected himself
They also pointed out that by merely keeping silent the Minister cannot avoid the Court considering the whole question
The principles deducible from the decisions of this Court and the above decision of the House of Lords which though not binding on us appeals to us on principle may be set out as follows The Executive have to reach their decisions by taking into account relevant considerations
They should not refuse to consider relevant matter nor should They take into account wholly irrelevant or extraneous consideration
They should not misdirect themselves on a point of law
Only such a decision will be lawful
The courts have power to see that the Executive acts lawfully
It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration
They cannot avoid scrutiny by courts by failing to give reasons
It they give reasons and they are not good reasons the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or satisfactory character of those reasons may not be open to judicial scrutiny
Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts
Judged by these tests the order of the State Government is unsustainable
Here the Government did not say that it considered it inexpedient to refer the question for adjudication or that the considerations put forward by the appellant before it were irrelevant
Neither the Labour Commissioner nor the Government seem to have noticed that this contract is not one of the usual kind wherein a contractor undertakes to do a certain work for a certain sum
In that case the question of profit and loss or as between the contractor and the party for whom he is executing the work any question as to who was to pay labour would not arise whether it is with regard to wages or bonus
The contractor will have to bear the full cost o material as well as the full liability for paying the workmen on any head whatsoever
In this contract the company had to pay for the material as well as labour
The appellant 680 got paid only for its professional services
There was in any case in A the contract no provision that the appellant was to incur any item of expenditure or make any payment in relation to the workman
In such a contract it would be unusual if it was to be considered that the appellant were expected to pay the bonus for the workman
This however need not be taken as our final view on this point
But it is a relevant Matter for consideration by the Government in deciding whether to refer the matter to the Tribunal or not
Furthermore when the question of bonus in this case arose what is known as the Full Bench formula was holding the field in the matter of payment of bonus
If the bonus were to be paid by the appellant it could hardly be brought within that formula
As the company had certainly not begun production at that stage it would be difficult to calculate the bonus with reference to the business of the company either
The mistake that the Labour Commissioner committed was in not realising that the dispute concerned not Cr merely two parties but three because from the beginning the appellant had made it clear that they would pay the bonus if the necessary amount was paid to them by the company
We have set out the facts of this case at considerable length and considered the whole question
We think that the Government s order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior
It has failed to realise that in effect the contractor employed labour for the company wh was the real paymaster
lt held failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant
Naturally the workmen were not interested who paid them as long as they were paid
lt would bear repetition to say again that the
Original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also
He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it inspite of the application made to them by the appellant after the disposal of the earlier appeal by this Court giving all relevant facts
It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellant s application
In the circumstances this appeal must be allowed and the Government of orissa must be directed to reconsider this matter and take a decision in the matter of reference in the light of the relevant facts
There will be no order as to costs
PHP Appeal allowed


Summary:
In 1957 the Hindustan Steel Limited Company and the appellant contractor entered into a contract for execution of the foundation and civil engineering work of the hot and cold rolling mills at Rourkela
The Company was to pay to the Contractor all costs of construction and in addition pay fixed overhead charges for the head office and general office of the contractor plus a fixed fee
All payments in respect of wages and salaries and connected pay matter made to persons engaged upon the work as might be approved by the Company comprising wages of all operatives as well as all other payments connected with wages were to be paid by the Company
Emoluments of Site Supervisory staff as well as all other payments connected therewith were also to be paid by the Company
The payments made to statutory schemes in connection with sickness or accident or Provident Fund or Pension or other like schemes to the above categories payments of overtime and additional remuneration for  Sunday holiday or night work etc and payments for leave and traveling cost were all to be made by the Company
In 1960 the Labour Union of workmen employed by the Contractor raised a dispute for adjudication about the bonus payable to the workmen for doing the aforesaid job The stand of  the contractor was that they would pay the bonus if it were given by the Company
The Government referred the question whether the workers of the contractor were entitled to any bonus and if so what should be the quantum
The question whether the Company or the Contractor was liable to pay the bonus was not referred
A notice was served on the company and the Company contended that since the contractor did not complete the work according to the agreement no bonus was due to the contractor and that the Company was not a necessary party to the reference
The contractor in the written statement contended that under the terms of the Contract the Company had to bear all costs with reference to labour all payments in respect of wages salaries and other connected payments made to persons engaged in the works and that the contractors were paid a stated fee for professional services rendered by them and that therefore the demand against the contractor was not sustainable in law
the contractor made an application to the Tribunal that for the proper adjudication of the issues referred to the Tribunal it was necessary to bring on record the Company as a party to the proceedings
The said application was rejected by the Tribunal
The contractor thereupon filed a Writ Petition in the High Court of orissa against the said order of the Tribunal
The High court dismissed the said writ Petition
The contractor filed an appeal by Special Leave to this Court
This Court in that appeal held That it would have been open to the State Government to ask the Tribunal to consider as to who was the employer of the workmen and in that case the terms of reference might have been suitably framed
In the present case such a course has not been adopted
The dispute between the Company and the contractor would be a substantial dispute and cannot be regarded as incidental to the industrial dispute which was referred The Company was therefore a necessary party
 668 The Contractor thereafter filed an application before the Slate Government asking them to modify the earlier reference by adding whether the bonus was payable by the Company or the contractor and by adding the Company as a party to the reference
It was pointed out in that application that it was the Company which would be liable to pay the bonus if at all it was payable
The contractor also asked for a personal hearing
The Government disposed of that application by observing Government do not find any materials on the basis of the petition to include Hindustan Steel Limited Rourkela as a party in the above case  The Government did not apply its mind to the other prayer namely adding one more issue to the reference
The Contractor filed a writ Petition against the said order of the State Government
The High Court dismissed the Writ Petition Against the judgment of the High Court the appellants appealed to Court
Allowing the appeal  HELD 1
It is apparent from the Government s reply that the Government did not apply its mind to the facts placed before them
There was at least an arguable case on the point as to who was liable to pay the bonus and in that close the Company would have been a necessary and appropriate party
Even if the Government thought that the company was not a necessary party
the question as to who was liable to pay the bonus was a very relevant question and that made the Company a necessary or at least a proper party
The attitude of the contractor throughout had been that their contract was a cost contract that the Company had to pay labour and the Company was the real employer
That contention may or
may not be upheld by the Tribunal
This was however an appropriate question to be referred to the Tribunal 674 C F 2
The power of the courts in relation to the orders or  the appropriate Government in the matter of referring industrial disputes for adjudication is no longer in doubt
674 G State of Bombay vs K P Krishan  Ors
1961 1 SCR 227 and Bombay Union of Journalists vs The State of Bombay 19646 SCR 22 24
followed
The powers of the Court mentioned in the above two cases in relation to the orders of the Government under any statute are not the only powers of the courts
In England in earlier days the courts usually refused to interfere where the Government or the concerned officer passed what was called a nonspeaking order
Where a speaking order was passed the Courts proceeded to consider the reasons given to see whether the reasons given were relevant reasons or considerations
Where there was a non speaking order they used to saw it was like the face of the sphnix in the sense that it was inscrutable and
therefore held that they could not consider the question of the validity of the order
Even in England the courts have traveled very fast since those say
They no longer find the face of the sphinx incurable
Needless to say that the courts in India which function under a written constitution which confers fundamental rights on citizens exercise far greater powers than those exercised by the courts in England where there is no written constitution and there are no fundamental rights
The decision of  House of Lords in Padfield vs Minister of Agriculture
Fisheries and Food   followed
675 F H 676 A 3
The Executive have to reach their decisions by taking into account relevant considerations
They should not refuse to consider relevant matter
nor should they take into account wholly irrelevant or extraneous considerations they should not misdirect themselves on a point of law
only such a decision will be lawful
The Courts have power to see that the Executive acts lawfully
It is no answer to the exercise of that power to say that the Executive acted 669 bone fide nor that they have bestowed painstaking consideration 
They cannot avoid scrutiny by courts by failing to give reason
If they give reasons and they are not good reasons the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or satisfactory character of these reasons may not be open to judicial scrutiny
Even if
the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts
679 D F 4
Judged by this test the order of the State Government is unsustainable
The Government does not seem to have Noticed that the contract in question us not one of the and wherein a contractor undertakes to do a certain work for a certain sum
In thus contract the Company had to pay for the material as well as for labour
the Contractor to a paid only for his professional services
There was in any case no provision in the contract that the contractor was to incur any item of expenditure or make any payment in relation to the workmen
The Government did not realise that the dispute concerned of merely two parties but three
The Government order in the present case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords us unlawful behaviour
The Government does not appear to have applied their mind to any of the considerations set out in the contractor s application679 F H 680 DF Allowing the appeal the Court directed the Government of Orissa to reconsider the matter and take a decision in the matter of reference in the light of the relevant facts
680 G