Civil Appeal No 795 of 1975
Appeal by special leave from the Judgment and order dated the 7th December 1973 of the Allahabad High Court Lucknow Bench in special appeal No 189 of 1969
B Sen B P Maheshwari and Suresh Sethi for the appellant
252 J P Goyal D P Mukherjee and Reghunath Singh for respondent
The Judgment of the Court was delivered by UNTWALIA J
This is an appeal by special leave
It is said that by a notification dated 27 4 1961 issued under section 3b of the U P Industrial Disputes Act UP Act XXVIII of 1947 herein after called the Act the recommendations of the first Sugar Wage Board were directed to come in force with effect from November 1 1960
Certain Sugar Mills including the appellants are said to have refused to implement the provisions of the notification dated 27 4 1961
This gave rise to an industrial dispute
Eventually the State Government of Uttar Pradesh by its order dated 22 9 1966 refused to make a reference for adjudication of the dispute under section 4K of the Act
Respondent No 1 filed a writ application in the Allahabad High Court under Article 226 of the Constitution of India asking for a writ of certiorari to quash the order of the government dated 22 6 1966 and a writ of mandamus directing them to make a reference
A learned single Judge of the High Court dismissed the writ application
But the same was allowed in a Special Appeal by a Bench of the High Court
The two appellants approached this Court 1 for grant of special leave
It was granted limited to the question as to whether the High Court was justified in giving directions to respondents 1 and 2 to refer the dispute of the workmen for adjudication under section 4K or the UP
 In the Special Appeal the High Court has taken the view following the decision of this Court in State of Uttar Pradesh and others vs Basti Sugar Mills Co Ltd1 that when action was taken under section 3b of the Act it was obligatory for the State Government to make a reference under section 4K for adjudication of the Industrial dispute raised in relation to the said action
The High Court on a consideration of the entire facts and circumstances of the case allowed the writ petition and quashed the order the State Government dated 22 6 1966 by grant of a writ of certiorari
In this appeal since the special leave was granted on a limited question we are not called upon to interfere with the said portion of the order of the High Court
But it further directed the State Government and the Labour Commissioner to refer the dispute for adjudication in exercise of their power under section 4K of the Act
It seems to have been so done on the view that it was obligatory for be State Government to do so 11 after the issuance of the notification under section 3b of the Act
In our opinion this was not correct
The decision of this Court in the case of Basti Sugar Mills supra was given with reference to clause d of section 3 of the Act as it stood prior to the amendment made by UP Act I of 1957
By the said amending Act clause d was dropped and substituted by another clause d with which we are not concerned and the provision 253 of making a reference was made in section 4K Section 4K of the Act is in pari materia with section 101 of the Industrial disputes Act 1947 central Act XIV of 1947
It has been pointed out by this Court in the case of Bombay Union of Journalists  Ors
vs The State of Bombay  Anr1 that the power of the Government under section 101 of the Central Act is discretionary and it is open to the Government under certain circumstances by taking into consideration the relevant factors to refuse to make a reference
Section 4K of the Act divorced from the context and set up of section 3 stands on the same footing
Clause d of section 3 as it stood in the Act before 1957 was so interwoven and inter connected with the exercise of the power in clause b that it led this Court to opine that a writ mandamus could be issued directing the State Government to make a reference under section 3d of the Act as it stood before the 1957 amendment
In our judgment however the position has changed after the amendment brought about in the year 1957
In the judgment of this Court delivered a few days ago namely Ms Mahabir Jute Mills ltd
Gorakhpore vs Shri Shibban Lal Saxena  Ors2 it has been held on a consideration of the provisions low contained in section 4K of the Act that after quashing the order of the Government refusing to make a reference the High Court could ask the Government to reconsider the matter but it could not give peremptory directions to make a reference
We may however take note of a sentence occurring in the judgment of this Court in the case of Bombay Union of Journalists  Ors3 which reads thus 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
 We think what was meant to be conveyed by the sentence aforesaid was that the party would be entitled to move the High Court for interfering with the order of the Government and not necessarily for the issuance of a writ of mandamus to direct the Government to make reference
The mandamus would be to reconsider the matter
It does not seem to be quite reasonable to take the view that after the refusal of the Government to make a reference is quashed a writ of mandamus to make a reference must necessarily follow
The matter has still to be left for the exercise of the power by the Government on relevant considerations in the light of the judgment quashing the order of refusal
For the reasons stated above we allow this appeal only to the extent that the order of the High Court made in the Special Appeal directing the Government of UP and the Labour Commissioner to 254 make a reference under section 4K of the Act is not sustainable and is set aside
We were informed at the bar that two references have already been made in pursuance of the said direction
It is plain that the said order made cannot hold good when we have set aside the order of the High Court giving the direction in pursuance of which the references have been made
It will however be open to the State Government to reconsider the matter in the light of the judgment of the High Court and within the ambit of well settled principles of law for exercise of their power of reference and to take such decision in the matter as they may think fit and proper to take in accordance with law
We shall make no order as to costs
VPS Appeal allowed


Summary:
Under section 3b of the UP  the State Government issued a notification directing that the recommendations of the First Sugar Wage Board were to come into force from November 1 1960
The appellant refused to implement the provisions of the notification
There was consequently in industrial dispute but the State Government passed an order refusing to refer the dispute for adjudication under section 4K of the Act
In a writ petition filed by the respondent the High Court following the decision of this Court in State of UP vs Basti Sugar Mills Co Ltd   issued a writ of certiorari quashing the order of the State Government refusing to make a reference and also issued a writ of mandamus directing the State Government and the Labour Commissioner to refer the dispute for adjudication under section 4 K
Allowing the appeal to his Court against the issue of the writ of mandamus  HELD 1 The power of the Government under section 10 of the Central Act is discretionary and it is open to the Government taking into consideration relevant factors to refuse to make a reference that is the High Court may after quashing the order of the Government refuse to make a reference ask the Government to re consider the matter but it could not give peremptory directions to make a reference
Section 4 K of the UP Act divorced from the context and setup of s3 is in pari Materia with and stands on the same footing as section 101 of the Central Act
253B Ms Mahabir Jute Mills Ltd Gorakhpore vs Shri Shibban Lal Saxena  Ors
Civil Appeal No 781 of 1973 followed
2 Section 3d as it stood in the UP Act before 1957 was so interwoven and inter connected with the exercise of the power in cl
b that it led this Court in the Basti Sugar Mills case to opine that a writ of mandamus could be issued directing the State Government to make a reference
The position however has changed after the amendments brought about in 1957 253B C 3 The observation that if the Government refuses to make a reference on the basis of irrelevant considerations the party may move the High Court for a writ of mandamus in the Bombay Union of Journalists case  35 only means that a writ of mandamus could be issued to the Government to re consider the matter
253F 4 The reference of the dispute made by the Government in pursuance of the direction of the High Court cannot hold good but the State Government may reconsider the matter and exercise its discretion either to refer the dispute or not within the ambit of well settled principles of law
254A B