Appeal No793 of 1957
Appeal by special leave from the judgment and order dated September 20 of the Patna High Court in MJC No 392 of 1955
C K Daphtary Solicitor General of India A B N Sinha and B P Maheshwari for the appellant
section P Varma for respondents Nos
126 8 and 10 23 1958
November 4
The Judgment of the Court was delivered by BHAGWATI J
This appeal with special leave is directed against the judgment of the High Court of Judicature at Patna dismissing the writ application of the appellant seeking to quash the proceedings in Miscellaneous Cases Nos 26 and 27 of 1955 before the Industrial Tribunal Bihar Patna
Gaya Sugar Mills Ltd a Company incorporated in 1934 owned a Sugar Factory at Guraru District Gaya
An order for the compulsory winding up of the Company was passed on November 41951 and by a subsequent order dated February 1 1952 one Dhansukh Lal Mehta was appointed liquidator of the Company
In order to preserve the aforesaid Sugar Mills at Guraru in proper running order and also for the beneficial 256 winding up of the Company the liquidator obtained under section III b of the Indian Companies Act sanction of the Court to lease out the said Mills with all the lands factory and residential buildings and machineries etc
The Guraru Cane Development and Cane Marketing Union Ltd were the former lessees of the said mills but on the expiration of their lease the liquidator obtained from the Court an order on December 3 1954 sanctioning the lease in favour of Shri Krishna Gyanody sugar Ltd  the appellant herein for the period December 51954 up to and inclusive of November 141955
The liquidator executed in favour of the appellant lease of the said Mills on December 6 1954 and handed over possession of the same to the appellant the same day
The terms and conditions of the lease in so far as they are material for our purposes provided that the appellant would be put into possession of the leasehold properties in a proper working order and would work and run the factory without any interference or obstruction by or on behalf of the lessor and would appropriate the entire income and profit thereof and the lessor would have no concern with profit or loss made by the lessee in running the said factory and would not be entitled to any sum or amount over and above the rent therein reserved
The appellant was not to be in any way liable or responsible for any of the liabi lities of the Company or of the liquidator or of the out going lessees incurred whether before or after the appellant entered into possession except those mentioned therein
The appellant was at its own cost entitled always to install any additional or other machinery or machineries and erect god owns or structures for the Purposes of and in connection with the running of the said Mills after intimation to the lessor
The appellant was not bound to engage any or all of the employees of the lessor or of the Outgoing lessees or any of the persons who had been working from before except the 18 employees who were mentioned in Cl 11 of the lease and the appellant also agreed not to retrench any staff already employed at that date in the Factory at Guraru vide cl
13vof the lease
The 257 properties demised by the said lease were deemed to be in the control of the Patna High Court and any dispute between the lessor and the appellant in respect of the said lease was to be placed before the said Court for decision and the decision made by the said Court was to be binding on all the parties
It appears that on December 2 1954 ie 4 lays before the execution of the said lease and delivery of possession of the said Mills by the liquidator to the appellant the Government of Bihar issued a notification referring certain disputes between the Managements of the Sugar factories specified in Appendix I thereto and their workmen represented by the Unions specified in Appendix It for adjudication to an Industrial Tribunal of which Shri Ali Hassan the respondent No 1 herein was to be tile sole member
The terms of the reference stated   Whereas the State Government is of opinion that ail Industrial dispute exists or is apprehended between the Management of the Sugar factories as specified in Appendix I and their workmen represented by the Unions as specified in Appendix 11 regarding the matters specified in Annexure A  Now therefore in exercise of the powers conferred by section 7 read with sub section 1 of section 10 of the XIV of 1947 and in supersession of Notification No III DI 1402054L15146 dated the 1st October 1954 the Governor of Bihar is pleased to constitute an Industrial Tribunal of which Mr Ali Hussan shall be the sole member and to refer the said dispute to the said Tribunal for adjudication
Annexure A 1
Retaining allowance to seasonal employees in Sugar factories in Bihar
Leave and holidays to the employees including seasonal employees in Sugar factories
Whether the deduction made in leave and holidays of the employees of the Management of the Sugar factories is unjustified and if so what compensation or relief the workmen are entitled to 33 258 There were as many as 28 Sugar factories specified in Appendix I and as many as 38 Labour Unions specified in Appendix 11
The Gaya Sugar Mills Ltd Guraru was the second item in Appendix I and the Chini Mazdoor Sangh Guraru was mentioned at the third item in Appendix 11
The respondent No 1 entered upon the said reference
Even though Gaya Sugar Mills Ltd Guraru which was then in liquidation was not specifically described as such in Appendix 1 notice was given to the liquidator by the respondent No 1 for January 11 1955 which was the date fixed for hearing before him
The said letter however reached the liquidator on January 13 1955 whereupon by his letter dated January 14 1955 he informed respondent No1 about it
Respondent No 1 however satisfied himself by merely endorsing on the letter of the liquidator that the hearing had already concluded and nothing further than inquiring of the post office as to the reason of the delay in the delivery of the letter could be done
Respondent No1 made his award on February 17 1955 and it was published in the Official Gazette on February 23 1955
The adjudication proceedings which had thus commenced on the date of the reference viz December 2 1954 came to a conclusion on the expiry of 30 days of the publication of the award viz on March 25 1955 under section 203 of the 
It appears that an appeal was taken to the Labour Appellate Tribunal against this award and the appeal was decided on August 31 1956
Even though the appellant was in possession of the said Mills under the terms of the lease dated December 6 1954 no notice was given by respondent No 1 to the appellant and the appellant therefore could not and did not appear before respondent No 1
So far as the appellant was concerned the proceedings before respondent No 1 were ex parte
Two applications were however made on March 23 1955 under section 33A of the  one by 15 persons alleging that the appellant had without any reason and without any notice discharged them from employ one by one during the months of January and February 259 1955 and the other by 5 persons alleging that the appellant had changed their conditions of service without any reason contending that the said discharges and the change in conditions of service had been effected by the appellant during the pendency of the disputes before the Industrial Tribunal aforesaid without the permission of the Industrial Tribunal having been obtained under section 33 of the Act
These applications were numbered as Miscellaneous Cases Nos 26 and 27 of 1955 and the appellant received on April 7 1955 two notices from respondent No 1 both dated March 25 1955 informing the appellant about the filing of the two miscellaneous cases and calling upon the appellant to file statements showing cause by April 19 1955
The appellant accordingly filed before respondent No 1 two applications or statements contending inter alia that the application under section 33 A of the  filed by those persons respondents Nos 4 to 23 herein were not maintain
able and were otherwise fit to be rejected
It was asserted on behalf of the appellant that the appellant as lessee of the said Mills had strictly complied with the terms and conditions of the lease and there had been no contravention on its part of section 33 of the Act in regard to any of the workmen concerned in the aforesaid two miscellaneous cases
It was pointed out that none of the persons who had filed the said applications was comprised in the 18 persons who were specifically mentioned in Cl 11 of the lease and who were specifically exempted from the operation of the said clause nor were they comprised in the category of members of the staff whom the appellant as lessee was not entitled to retrench under Cl
13v of the lease with the result that none of the said clauses of the lease could be said to have been violated by the appellant
On July 13 1955 the appellant filed in the High Court of Judicature at Patna a writ application under articles 226 and 227 of the Constitution being Miscellaneous Judicial Case No 392 of 1955 impleading the Chairman Industrial Tribunal Bihar as respondent No 1 the State of Bihar as respondent No 2 the liquidator as respondent No 3 and the applicants in 260 the said miscellaneous cases Nos 26 and 27 of 1955 pending before the Industrial Tribunal as respondents Nos 4 to 23 for a writ of certiorari quashing the said Miscellaneous Cases Nos 26 and 27 of 1955 a writ of Mandamus restraining the respondent No 1 from proceeding with or otherwise dealing with the said miscellaneous cases costs and further and other reliefs
The main Contentions urged by the appellant in the said petition were 1 that under each one of the points referred for adjudication considerable burden was sought to be imposed on the sugar factories concerned  that all the properties and effects of the Gay Sugar Mills Ltd were in the custody of the Court as from the date of the order for Winding up viz November 141951  that the said notification did not purport to include Gaya Sugar Mills Ltd in that light and did not describe the company as having already gone into liquidation  that no leave of the Court was obtained before commencing or continuing the proceedings before the Tribunal and in fact the liquidator was neither named as a party nor was any notice given to him of the commencement of the proceedings and that therefore go far as the Gava Stugar Mills Ltd In Liquidation was concerned there was no proceedingly in the eye of the law before respondent No 1 and as such the Miscellaneous Cases Nos 26 and 27 of 1955 of which notices had been sent to the appellant were not maintainable and 2 that no notice of the adjudication proceedings arising out of the aforesaid Notification dated December 2 1954  as at any stage given to the appellant who was in possession under the terms of the lease granted by the Court  that the appellant being lessee under orders and under terms of the lease approved by the Court was liable for breach of the terms of the lease if any and that also to the Court alone that there was no violation of section 33 of the  if the appellant bona fide acted up to the terms of the lease and being itself no party to any adjudication proceedings before any Tribunal or before respondent No 1 there could be no breach of section 33 of 261 the Act and as such no application under section 33Aof the Act could be maintained against the appellant
No affidavit in reply was filed by or on behalf of any of the respondents and the application came up for hearing before Ramaswami C J and Raj Kishore Prasad J who delivered the judgment of the Court on September 20 1956 dismissing the application with costs
Assuming but without expressing any opinion that the reference made by the State Government under section 101 of the Industrial Disputes Act was a legal proceeding within the meaning of section 171 of the Indian Companies Act the High Court held that section 101 of the Industrial  Disputes Act was not controlled by section 171 of the Indian Companies Act and therefore no leave of the Court was necessary before making a reference of the Industrial Disputes under section 10 1 of the Industrial Disputes Act
It was also of opinion that even though the reference under section 101 of the Industrial Dispute Act was made by the State Government on December 2 1954 and the applicant had taken the lease of the said Mills subsequently i e on December 6 1954 the applicant was an  employer  within the meaning of the term used in sections 33 and 33A of the Act and that it was not necessary for the application of either of those sections that the employer who discharges or punishes the workmen or who alters the conditions of service of the workmen should be the identical employer concerned in the industrial dispute which is the subject matter of adjudication
It was sufficient for invoking the provisions of either of those sections that there is the relationship of employer and employee at the time the workman is discharged or punished or at the time his conditions of service are altered to his prejudice
It was further of opinion that even though the liquidator was not made a party to the reference made by the State Government under section 101 of the  the Gaya Sugar Mills Ltd Guraru was specifically mentioned as one
of the parties in Appendix I that the Gaya Sugar Mills Ltd continued to be a legal personality though an order for winding up had been made and that there 262 fore the Company was properly made a party to the reference under section 101 of the Act
The fact that the notice given to the liquidator on January 11 1955 might have been received late by the liquidator did not in the opinion of the Court make any difference to the position inasmuch as the award of the Industrial Tribunal was made on February 17 1955 i e long after the date of the notice and there was no lack of jurisdiction in the Industrial Tribunal to make the award valid and binding on the Gaya Sugar Mills Ltd Guraru
The High Court accordingly rejected the application as stated above
The applicant applied for leave to appeal to this Court on November 9 1956 but the High Court refused to grant the certificate on the ground that the proceeding for grant of a writ of certiorari under article 226 is not a civil proceeding within the meaning of article 133 of the Constitution
The applicant thereupon applied for and obtained from this Court on April 1 1957 special leave to appeal and the appeal has now come up for hearing and final disposal before us
The two main contentions which were urged before us by the learned Counsel for the appellant were 1 that the Gaya Sugar Mills Ltd Guraru had been taken into liquidation and respondent No 3 had been appointed the liquidator thereof that the reference made by the State Government to the Industrial Tribunal on December 2 1954 involved considerable financial burden on the said Mills and the State Government ought to have obtained the sanction of the Court under section 171 of the Indian Companies Act before making a reference of the industrial disputes to the Industrial Tribunal under section 101 of the  qua the said Mills and that not having been done the reference was bad in law and there was no question of the applicability of either section 33 or section 33A of the Act and 2 that on a true construction of sections 33 and 33A of the Act the  employer  therein mentioned could only be the  employer  concerned in the industrial dispute which was the subject matter of reference that the applicant had taken the lease of the said 263 sugar Mills on December 6 1954 4 days after the date of reference made by the State Government under section 101 of the Act and that therefore the applicant was not an  employer  within the meaning of the terms as used in section 33 or section 33A of the Act and even if the allegations made by the applicants in Miscellaneous Cases Nos 26 and 27 of 1955 before respondent No 1 were correct it was not necessary for the applicant to have obtained the permission of the Industrial Tribunal under a 33 of the Act and therefore the said applications under section 33A of the Act filed by res pondents 4 to 23 were not maintainable
It will be appropriate at this stage to set out the relevant sections of the Indian Companies Act and the as they then stood which fall to be considered by us in this appeal
section 171 Indian Companies Act  Suits stayed on winding up order When a winding up order has been made or a provisional liquidator has been appointed no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court may impose
 S101 Industrial Disputes Act 1947Reference of disputes to Boards Courts or Tribunals Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing a refer the dispute to a Board for promoting a settlement thereof b refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry or c refer the
dispute or any matter appearing to be connected with or relevant to the dispute to a Tribunal for adjudication Provided that where the dispute relates to a public utility service and a notice under section 22 has been given the appropriate Government shall unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so 264 to do make a reference under this subsection not withstanding that any other proceedings under this Act in respect of the dispute may have commenced section 33 Ibid Conditions of service etc to remain unchanged during pendency of proceedings During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute no employer shall a alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings or b discharge or punish whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the conciliation officer Board or Tribunal as the case may be 33 A Ibid Special provisions for adjudication as to whether conditions of service etc changed during pendency of proceedings  Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Tribunal any employee aggrieved by such contravention may make a complaint in writing in the prescribed manner to such Tribunal and on receipt of such complaint that Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provision of this Act shall apply accordingly
 As to 1 Section 171 of the Indian Companies Act occurs in Part V which relates to the winding up of companies and prescribes that once a winding up order has been made no suit or other legal proceedings shall be proceeded with or commenced against the Company except by leaveof the winding up Court and subject to such terms as the Court may impose
The Court is in custody of all
the properties and assets of the Company through the liquidator and is in control of the winding up proceedings with a view to the proper realization of the assets and the equitable 265 distribution thereof amongst the creditors of the Company
No suit or other legal proceeding can therefore be proceeded with or commenced against the  Company except by leave of the Court and such leave is a necessary prerequisite of the prosecution of such legal proceeding
In order to decide the question of the applicability of section 171 of the Indian Companies Act it has to be ascertained a whether the reference in question is a proceeding against the Company and if So b whether such reference can be said to be a legal proceeding within the meaning of section 171 of the Indian Companies Act
There has been unfortunately a considerable confusion of thought in the court below and the facts have not been properly appreciated
The first question to determine was who was the party to the reference
It appears to have been assumed that the Gay a Sugar Mills Ltd was a party to the reference and that the only defect in the order of reference was that the liquidator was not made a party to the refer ence
This difficulty was sought to be got over by holding that the Gaya Sugar Mills Ltd continued to be a legal personality though an order for winding up had been made that the Company had not ceased to exist as a legal
entity and therefore the Company was properly made a party to the reference under section 101 of the 
This was however not the correct position on a true interpretation of the terms of reference
The reference was between the managements of the Sugar factories specified in Appendix I and their workmen represented by the Unions specified in Appendix 11
Gaya Sugar Mills Ltd Guraru was mentioned as item 2 in Appendix I but it is quite clear that what was intended to be made a party to the reference under this item was the management of the Sugar factory which belonged to the Company called the Gaya Sugar Mills Ltd whoever
that management may be
The mention of the Company was to indicate and to point out the particular factory whose management for the time being was to be one of the parties to the reference and 34 266 it required to be ascertained who was comprised within the  management  of the Mills
The State Government could not have been oblivious of the fact that the Company had gone into liquidation and a liquidator of the Company had been appointed by the court and was leasing out the factory to different lessees
If the Company itself were a party to the reference the liquidator ought to have been mentioned there as such but that apparently was not done for the simple reason that the factory was being worked by the lessees under the terms of the leases duly sanctioned by the court
The liquidator was therefore not in management of the factory and the only persons who were in management were the then lessees to whom leases were granted by the liquidator with the sanction of the court
The Industrial Tribunal was obviously in error when it gave notice of the proceedings to the liquidator
The liquidator was no more in management of the factory and was therefore not entitled to be served with any notice the then lessees were in management and they were the only parties to whom notice of the proceedings should have been given
The liquidator no doubt wrote to the Industrial Tribunal that he had received the notice too late for him to attend
This letter of the liquidator was treated with scant courtesy by the Industrial Tribunal who merely endorsed at the foot of the letter that the hearing had already concluded and nothing further than enquiring of the Post Office as to the reason of the delay in the delivery of the letter could be done
The Industrial Tribunal proceeded to make its award on February 17 1955 without having before it the management of the factory viz the lessees who had obtained the lease of the said Mills from the liquidator and for all practical purposes the said award was ex parte so far as the lessees who were at the date of the reference in management of the factory and were obviously intended to be a party to the reference were concerned
The appellant came into management of the factory after the reference and could not at the date of the reference be in contemplation of the State Government as a party and in any 267 event no notice whatever was given to the appellant  of the proceedings before the Tribunal
By no stretch of imagination could it be said that the Company In Liquidation was a party to the reference the said Mills having been given on lease to the lessees who worked the Mills thereafter not for and on behalf of the Company but on their own account they being responsible for the profit and loss in the working of the Mills
The Company thus not being a party to the reference the proceedings which were commenced on December 2 1954 before the Tribunal were not proceedings against the Company In Liquidation
This being the position on a true construction of the terms of the notification by which the reference was made the question whether the reference was a legal proceeding within the meaning of section 171 Of the Indian Companies Act does not arise for our decision and we prefer not to express any opinion on that part of the question
As to 2 The next question to consider is the connotation of the term  employer  as used in sections 33 and 33A of the 
These sections postulate the pendency of a proceeding of an industrial dispute
It requires two to raise a dispute
An Industrial Dispute is thus defined in section 2k of the Act Industrial dispute  means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non employment or the terms of employment or with conditions of labour of any person
If this definition is bodily lifted from section 2 k and substituted for the expression  industrial dispute  occurring in section 33 and sections 33 and 33A of the Act are then read it will at once become clear that the employer can be no other than the employer with whom the workers had the industrial dispute and cannot mean merely an employ who discharges or punishes or who alters the conditions of service of the workmen concerned
If the interpretation adopted by the High Court was correct it would mean that the Industrial 668 dispute which is referred for adjudication to the Industrial Tribunal may have arisen between employer A and his workmen but during the pendency of those proceedings employer B who had nothing to do with employer A would be prevented from discharging or punishing the workmen or altering their conditions of service provided only that the workmen concerned happened to be interested in the industrial dispute which was pending before the Industrial Tribunal
If there is no connection at all between the employer A and the employer B in the illustration given above one fails to see how a mere identity of the establishments or the identity of the workmen could be enough to bring the employer B within the purview of these sections
The very purpose of the enactment of as
33 and 33A of the is as observed by this Court in the Automobile Products of India Ltd vs Bukmaji Bala 1  to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen
To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment
Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein
 The scope of the enquiry under section 33 of the has also been the subject matter of adjudication by this Court and it was held in Atherton West  Co Ltd vs Suti Mill Mazdoor Union 2 that the authority  concerned would institute an enquiry and come to the conclusion whether there was a prima facie case 1 1955 i SCR 1241 1256
2   787 269 made out for the discharge or dismissal of the workman and the employer his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman
 A similar ratio would apply where an employer changes the conditions of service of the workmen concerned
If this be the criterion for determining whether an employer was entitled to discharge or punish the workmen or alter their conditions of service without the permission in writing of the authority concerned that employer cannot be any other than the one who is concerned in the industrial dispute which is the subject matter of adjudication
If employer B has nothing to do at all with employer A who is really the party concerned in such industrial dispute which is the subject matter of adjudication there will be no question of attributing any improper motives or unfair practice or victimization to the employer B in regard to the action which he proposed to take against the workmen
Whether the employer B would be entitled to such action or not would have to be determined in other proceedings which may be taken in the matter of industrial disputes which may subsequently arise between himself and his workmen after such action was taken
But he would certainly not be bound before taking such action to seek the permission in writing of the Industrial Tribunal before which an industrial dispute was pending as between those workmen and another employer with whom he had no concern
The latter interpretation is therefore more in consonance with the principle underlying the enactment of section 33 of the and it must be held that the employer contemplated by sections 33 and 33A of the must be the identical employer concerned in the industrial dispute which is the subject matter of adjudication
In other words the employer contemplated by sections 33 and 33A of the must be the employer with whom the workmen mentioned as aggrieved under section 33 had a subsisting relationship of employer 270 and employees at the commencement of the proceedings referred to in those sections
The identity of the employer at the commencement of the reference with the employer who intends to take proceedings within the ban of section 33 of the Act must be established and if the latter has no concern with or relationship with the former sections 33 and 33A of the Act do not dome into operation at all
Such identity could in the event of change in the employers be established by showing that the latter employer was merely a nominee or Benamidar of the former or that on the analogy of section 183c of the he came with in the description of  his heirs successors or assigns in respect of the establishment to which the dispute relates in which event the award made by the Indus
trial Tribunal would be binding on him just as much as on the former employer of the workmen concerned
These are however the only cases in which according to the provisions of the the identity of the employers at the commencement of the proceedings and the intended discharge or punishment or change in the conditions of service of the workmen concerned could be established and unless the employer who intended to discharge or punish or change the conditions of service of the workmen was in this sense identical with the employer who was concerned in the industrial dispute which is the subject matter of adjudication no question could arise of the operation of section 33 or section 33A of the 
What then was the position of the appellant under the reference in question  It does not appear from the record as to who was the management of the said Mills on December 2 1954
The lease in favour of the old lessees Guraru Cane Development and Cane Marketing Union Ltd had apparently come to an end by efflux of time the period of the lease presumably being up to the end of the crushing season which would end some time in the month of November 1954
An application had been made by the liquidator to grant a lease in favour of the appellant and this application was granted by the Court on December 3 1954 so that in any event before December 3 1954 the appellant could 271 not be said to be in management of the said Mills
As a matter of fact the lease was executed in favour of the appellant on December 6 1954 and the possession of the said Mills was also given to the appellant by the liquidator on the same day
It could not therefore be said that the appellant was comprised within the description of the management of the Gaya Sugar Mills Ltd at the date when the reference was made by the State Government
If that was so a reference Of a previous date without anything more could not comprise the appellant within its scope and that appears to have been the position as understood even by the Industrial Tribunal which gave no notice to the appellant but gave notice of the proceedings erroneously as we hold to the liquidator of the Company
The appellant was not in management of the said Mills and it could not be bound by the reference because at no stage was any attempt made either to amend the terms of the reference or even to serve on the appellant a notice of the proceedings which were to take place before the Industrial Tribunal
Under the Industrial Disputes Central Rules 1947 enacted by the Central Government in exercise of the powers conferred upon it by section 38 of the  intimation of the place and time of hearing had got to be given to the parties to the reference Rule 10 and the Industrial Tribunal was enjoined to call upon the parties at the first sitting to state their case Rule 11 the only power given to the Industrial Tribunal to proceed ex parte was when a party to the proceedings failed to attend or to be represented without good cause shown Rule 19  and the representatives of the parties appearing before an Industrial Tribunal were to have the right of examination cross examination and of addressing the Tribunal when evidence had been called Rule 24  The whole of this procedure envisaged the parties to the reference being properly notified of the proceedings before the Industrial Tribunal and taking part therein either by themselves or through their authorised representatives
The fact that no such notice was given to the appellant by the Industrial Tribunal goes to show that in the circum 272 stances that obtained the appellant was certainly not understood by the Tribunal as having been a party to the reference and it could not be said on the terms of the reference itself which was made on December 2 1954 that the appellant which came into existence as the lessees of the said Mills on December 6 1954 was a party to the said reference
If the old lessees were in management of the said Mills on December 2 1954 there was no identity of employers as between them and the appellant the appellant certainly did not claim under the old lessees nor could it be described as their  heirs successors or assigns  in respect of the establishment to which the dispute related within the meaning of section 183 c of the  There is no suggestion whatever that the appellant was or is a benamidar of the previous lessees
In no event could the appellant therefore be held to be bound either by the reference or the award made by the Industrial Tribunal the identity of the employers at the date of the reference with the employers at the time when the acts complained of in the applications under section 33 A of the were purported to be done by them not having been established
If that is the true position no question of the appellant obtaining written permission of the Industrial Tribunal under section 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise
If no such permission were needed section 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos 26 and 27 of 1955 we re not maintainable
The result is no doubt unfortunate  because the Industrial disputes which were referred to the Industrial Tribunal by the reference in question were general in their nature and would comprise within their scope the workmen who were working in the Gaya Sugar Mills Ltd at all relevant times
The appellant came in management of the said Mills from and after December 6 1954 and it was certainly intended that these disputes which had either existed or were apprehended between the appellant on the one hand and the workmen 273 working in the said Mills on the other should be adjudicated upon under the terms of that reference
If the appellant could be comprised within the description of the  management  of the said Mills at the date of the reference viz December 2 1954 the object and the purpose of the reference qua the workmen of the said Mills would be accomplished
The difficulty however is that the several managements which would come into existence on successive leases being granted by the Court in the present case cannot be said to have been comprised within the term managements of the Sugar factories specified in Appendix I even though the Gaya Sugar Mills Ltd Guraru is mentioned as item 2 therein
Such a construction would make the several successive lessees who came into existence during the whole of the period when the reference was pending before the Industrial Tribunal parties to the reference involving fresh notices to be issued fresh statements of case to be furnished fresh hearing to be granted to each of the successive lessees under the Industrial Disputes Central Rules 1947 a result which certainly could not have been contemplated by the State Government when the reference was made
It therefore follows that the appellant was not by any count a party to the reference dated December 2 1954 and not being such a party was not an employer within the meaning of sections 33 and 33 A of the qua the workmen who filed the applications in Miscellaneous Cases Nos 26 and 27 of 1955
If the workmen felt that they have been victimised or that there had been an unfair labour practice they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under section 101 of the Act as to which we say nothing but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under section 33 A of the Act
In the premises if the appellant was not bound as we hold it was not to ask for the written permission of the 35 274 Industrial Tribunal before discharging punishing or effecting a change in the conditions of service of the workmen concerned no application under section 33 A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct
The result therefore is that the proceedings in Mis cellaneous Cases Nos 26 and 27 of 1955 before the res pondent No 1 Industrial Tribunal Bihar Patna are without jurisdiction and liable to be quashed
The appeal of the appellant will therefore be allowed the order made by the High Court on September 20 1956 will be set aside and a writ of certiorari will issue against respondent No 1 quashing the proceedings in the said Miscellaneous Cases Nos 26 and 27 of 1955
The appellant will be entitled to its costs throughout against the contesting respondents
Appeal allowed


Summary:
For the purposes of a housing project some land was acquired by way of a notification under the Land Acquisition Act
The Respondent Society claiming that it had entered into a contract with the owners for purchasing the very property applied for exemption under the Urban Ceiling Act
The exemption prayed for was refused initially but was granted later
Both the Respondent Society and the owners of the said land filed Writ Petitions before the High Court for quashing of the acquisition proceedings
The acquisition was upheld by Single Judge but on appeal by Respondent Society the Full Bench held the acquisition proceedings to be inopera tive
Against these orders the appellant Society which had entered into an agreement with the Municipal Corporation and as such interested in the acquisition has preferred the appeals
Meanwhile the State Government withdrew the exemption granted under the Urban Ceiling Act
One of the owners filed a Writ Petition before the High Court challenging the with drawal
The High Court took note of the fact that the mat ters were pending in this Court and dismissed the petition
Aggrieved against the order of dismissal a petition for special leave has been filed
The Respondent Society also moved the High Court by way of a Writ Petition challenging the withdrawal of exemption which was pending and this Court transferred the same to itself to be heard with the pending cases
On 781985 this Court gave time to Counsel to consider various compromise proposals
However the desired compro mise did not come through
On 2381988 this Court passed an order holding that the 783 acquisition proceedings have to be revived
However no formal disposal was recorded since a settlement was being negotiated
Even after about 2 yrs
the settlement did not fructify
Remitting the matters to the High Court HELD 1
If the settlement does not fructify the effect of the decision that the acquisition proceedings are to revive would be that the claim to the land by Respondent Society would come to an end
In that event at the most that Society would only be entitled to such compensation as may be awardable in law
If the acquisition proceeds the appellant Society and the Municipal Corporation would have to workout their mutual rights
Apart from these the two writ petitions challenging the withdrawal of the exemption by order dated 2361983 would also have to be disposed of on merits
In view of the fact that the owner s writ peti tion was dismissed not on merits but on other considera tions the said dismissal should be vacated and that writ petition should be heard along with Writ Petition No 650083 as a common question arises for determination
The order of the High Court dated 13th of June 1988 is set aside and the High Court is directed to dispose of the Writ Petition afresh on merits
787B D 2
If the High Court is of the opinion that the matter should be settled and the entire land of the owners amount ing to 18 acres and 3 gunthas should be divided between the two Societies it will be free to do so if Government also agrees thereto
Since that arrangement would be with the consent of the State Government it would in such an event be open to the High Court to nullify the acquisition
The observations made at different stages during the pendency of the proceedings in this Court may not be taken to be expres sion of opinion on merits and the High Court would be free to deal with the matter on its own discretion and in accord ance with law
787F G 3
In the event of the settlement not coming through the acquisition proceedings would continue under the law and be concluded by the Land Acquisition Officer in accordance with law
In the event of the acquisition working out the two writ petitions against the withdrawal of exemption would not be sustainable as the land would vest in Government as a result of acquisition
It would be open to the Government or the acquiring authority to take into account the effect of the laws of urban ceiling
787H 788A 4
The civil appeals are also remitted to the High Court limited to 784 the consideration of the proposals  for settlement in the light of the observations made in this Judgment
Otherwise they must be taken to have been concluded in this Court on the finding that acquisition proceedings are valid and shall be entitled to continue
The special leave petition is disposed of with a direction that the writ petition in the High Court shall be re heard
The transferred writ petition remitted to the High Court for disposal 788B C 5
Money if any in deposit in the Registry of this Court to the credit of the parties shall be transferred to the High Court and shall be subject to such directions as the High Court may issue upon a final decision of the rele vant issues arising in the proceedings
788D