IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30/09/2002 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA W.P.NO.18242 of 2001 and 18243 of 2001 and W.P.Nos.18256 to 18265,18293 to 18298,18343, 18344,18405,18406,18466,18467,18497,18498,18625 to 18628, 18646 to 1 8649,18694,19695,18697,18702 to 18705,18707 to 18710,18731 to 18734,1 8789,18790,18829 to 18832, 18857, 18858, 18872 to 18875,18879 to 18 884,18910 to 18913,18915 to 18918, 18926 to 18931,18937,18938,18944, 18945,18961 to 18967 to 18972,18978, to 18981, 18994 to 18997, 18999 , 19000 to 19010, 19040, 19041,19052 to 19055 to 19057, 19060, 19061, 19069, 19070, 19084, 19085, 19087, 19088, 19101 to 19106,19141,19142 ,19152,19153,19172 to 19179, 19186 to 19191, 19233,19235,19236,1928,1 9246 to 19254, 19258 to 19263, 19264 to 19277, 19281,19282,19287, 192 98 to 19304,19315 to 19321,19347,19348, 19353, 19354, 19359, 19369,19 370,19371,19385,19386,19427,19428,19448 to 19451, 19455,19462 to 1946 5,19496,19499,19500 to 19515, 19564 to 19573,19575 to 19584,19601 to 19608,19613,19614, 19636 to 19368,19651,,19652,19665,19666,19668,1967 6 to 19683,19688, 19689,19715,19723,19724,19732 to 19735,19740, 19741 , 19754,19756,19774 to 1779,19781,19785 to 19790, 19799 to 19810, 19 813 to 19816,19819 to 19822,19826,19828, 19834, 19835,19853 to 19862,19886,19887,19900 to 19905, 19910, 19919 to 19924, 19929,19930,19944 to 19951, 19959 to 19964,19985, 20029 ,20030,20004 to 20013, 20022 to 20027,20083 to 20098,20119,20120,20111,20112,20114, 20115, 20195, 2 0196, 20224 to 20229,290231 to 20243,20257,20258, 20260, 20261, 202 63 to 20265,20279,20281,20287,20288, 20336,20337,20354, 20355, 20362 to 20372, 20375, 20377, 203179,20381,20373, 20374, 20376,20378,20380, 20382 to 20397, 20417,20418, 20483, 20484,20487 to 20514,20678 to 20 685,20689,20722 to 20751, 21159,21160, 21162,21163, 21195, 21196,2109 9 to 21102,21131, 21132,21070 to 21079, 20752 to 20761,20782,20785, 2 0791, 20792,20800,20802,20804 to 20813, 20835, 20838,20839, 20877 to 20866,20923 to 20926,20929 to 20932,20949,20950,21060 to 21069,21399 to 21433,21542, 21566, 21606 to 21615,21683 to 21730, 21817 to 21821,21966 to 21970,22926, 22927,23341, 23342,23390 to 23399, 23858 to 238 61,24320,18940, 18941, 19011 to 19014,20620 to 206269, 20610 to 2061 9,20642, 20655,20656, 19261,19622,19459,19532,19533,19983,19984,20046 to 20048, 20052 to 20057,20063 to 20066, 20515 to 20520,20534, 20545 ,20546,20603,20604 of 2001 Premier Mills Ltd., Belathur, Hosur Taluk Dharmapuri Department, rep.by Deputy General Manager, .. Petitioner in W.P.NOs.18242/2001 -Vs- 1. State of Tamil Nadu, Labour & Employment Department, Fort St. George, Chennai 9. 2. Presiding Officer, Industrial Tribunal, Chennai 104. 3. Premier Mills National Textile Employees’ Union (INTUC), Opp. to Premier Mills, Bagalur, Belathur, Hosur 635 124. 4. Premier Mills Anna Thozhilalar Sangam (ATP), Opp. to Premier Mills Bagalur, Hosur 635 124. 5. Dharmapuri District Dravidar Panchalai Thozhilalar Munnetra Sangam (MLF, 86/A-1 Bharathi Nagar, Hosur 635 189. 6. Dharmapuri District Dravidar Thozhilalar Munnetra Sangam (LPF) Opp. to Premier Mills, Bagalur, Hosur 635 124. 7. Premier Mills National Labour Union (NLO), 2/138-B, Teachers Colony, Belathur, Hosur Taluk .. Respondents For Petitioner : Mr.A.L. Somayaji, Senior Counsel for M/s.T.S. Gopalan & Co. For Respondents 1-2: Mr. Muthukumarasamy Additional Advocate General Respondents 3-7: Ms. Vaigai :J U D G M E N T There are more than 1600 industrial establishments relating to Textile industry in the State. In June 1999, a Charter of demands was submitted by various labour unions of several industrial establishments. Subsequently on 20.3.2001 strike notice had been issued, but there was no strike. In the meantime discussions were carried on, firstly before the Joint Commissioner of Labour, Coi mbatore and subsequently before the Labour Commissioner, Chennai on several dates in the presence of representatives of various labour unions and representatives of some associations of the management such as South India Mills Association (in short SIMA), South India Small Spinners Association (in short SISSPA), the Dindigul Spinners Association, the Madurai Spinners Association. While such discussions were being carried on, strike notices were issued on behalf of the Unions and many workers in several industrial establishments struck work between 20.8.2001 and 22.8.200 1, but thereafter strike was called off. Further discussion having proved futile, the Conciliation Officer submitted the Conciliation Failure Report on 11.9.2001. The Government issued order G.O.Ms.No.688 dated 13.9.2001 making a reference in respect of some of the demands included in the Charter of demands. On the very same date, the Government issued G.O.Ms.No.690 under Section 10-B inter alia directing payment of varying amounts towards interim relief during the pendency of the industrial dispute. In one group of writ petitions legality of G.O.Ms.No.688 dated 13.9.2001 is questioned. In the other group of writ petitions, the validity of G.O.Ms.No.690 dated 13.9.2001 is questioned. 2. A common counter affidavit has been filed on behalf of the State Government. The Joint Action Committee which has got itself impleaded, has also filed a counter affidavit. In the counter affidavit filed on behalf of the Government, both the orders passed by the Government have been sought to be justified. Similar stand is taken in the counter affidavit filed on behalf of the Joint Action Committee. 3. Since many common questions were involved, both groups of writ petitions were heard together and are being disposed of by this common judgment. 4. On behalf of various petitioners, the matter has been argued inter alia by Mr.A.L. Somayajee, Mrs. Nalini Chidambaram, Senior Advocates and Mr.Sanjay Mohan, Mr. Vijay Narayan, Mr.R.S. Pandiyaraj, Mr.S. Jayaraman Mr. Balan Haridass, Mr. Elumalai and Mrs. Hema Sampath and Mr.Muthukumarasamy, Additional Advocate General and Ms. Vaigai have made submissions on behalf of the respondents. 5. Before dealing with the contentions, it is necessary to notice the relevant provisions of the Industrial Disputes Act, 1947 as amended in Tamil Nadu and the Tamil Nadu Industrial Disputes, 1958. “ 10. Reference of disputes to Boards, Courts or Tribunals. - (1) 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) . . . (b) . . . (c) . . . (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication : . . . Provided further 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 to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced : . . . 10(5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a Labour Court, Tribunal or National Tribunal under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in, or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments. . . .” . . . 10B. Power to issue order regarding terms and conditions of service pending settlement of disputes. - (1) Where an industrial dispute has been referred by the State Government to a Labour Court or a Tribunal under sub-section (1) of section 10 and if, in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or convenience or the maintenance of public order of supplies and services essential to the life of the community or for maintaining employment or industrial peace in the establishment concerning which such reference has been made, they may, by general or special order, make provision - (a) for requiring employers or workmen or both to observe such terms and conditions of employment as may be specified in the order or as may be determined in accordance with the order, including payment of money by the employer to any person who is or has been a workman; (b) for requiring any public utility service not to close or remain closed and to work or continue to work on such terms and conditions as maybe specified in the order; and (c) for any incidental or supplementary matter which appears to them to be necessary or expedient for the purpose of the order: . . . . . . 12.Duties of Conciliation officers.-(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner. ÿ ÿÿÿÿÿÿÿ(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. ÿ ÿÿÿÿÿÿ(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute. ÿ ÿÿÿÿÿÿÿÿ(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for brining about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. ÿ ÿÿÿÿÿÿÿÿ(5) If, on a consideration of the report referred to in subsection(4),the appropriate Government is satisfied that there is a case for referenceÿ to a Board,. Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. ÿ ÿÿÿÿÿÿÿÿ(6) A report under this section shall be submitted within fourteen days of the commencement of he conciliation proceedings or within such shorter period as may be fixed by the appropriate Government. ÿ ÿÿÿÿÿÿÿÿÿProvided that, subject to the approval of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute. . . . ÿ ÿÿÿÿÿÿÿÿ22. Prohibition of strikes and lock-outs.-No person employed in a public utility service shall go on strike in breach of contract- ÿ ÿÿÿÿÿÿÿÿ(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or ÿ ÿÿÿÿÿÿÿÿ(b) within fourteen days of giving such notice; or ÿ (c) before the expiry of the date of strike specified in any such notice as aforesaid;or ÿ ÿÿÿÿÿÿÿÿ(d)during the pendency or any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. ÿ ÿÿÿÿÿÿÿÿ(2) No employer carrying on any public utility service shall lick-out any of his workmen- ÿ (a) without giving them notice of lock-out as hereinafter provided, within six weeks before locking-out; or ÿÿÿÿÿÿÿÿÿ ÿ ÿÿÿÿÿÿÿÿ(b) within fourteen days of giving such notice;or ÿ ÿÿÿÿÿÿÿÿ(c) before the expiry the date of lock-out specified in any such notice as aforesaid; or ÿ ÿÿÿÿÿÿÿÿ(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. ÿ ÿÿÿÿÿÿÿÿ(3) The notice of lock-outÿ or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public utility service, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services. ÿ ÿÿÿÿÿÿÿÿ(4) The notice of strike referred to in sub-section(1)shall be given by such number of persons to such person or persons and in such manner as may be prescribed. ÿ ÿÿÿÿÿÿ (5) The notice of lock-out referred to in sub-section(2) shall be given in such manner as may be prescribed. ÿ ÿÿÿÿÿÿÿ(6) If on any day an employer receives from any persons employed by him any such notices as are referred to in sub-section(1)or gives to any persons employed by him any such notices as are referred to in sub-section(2),he shall within five days thereof report to the appropriate Government or to such authority as that Government may prescribe the number of such notices received or given on that day. . . . 29-A. Penalty for failure to comply with an order issued under section 10-B. - Any person who fails to comply with any provision contained in any order made under sub-section (1)of section 10-B, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year and with fine. . . . 36. Representation of parties. - (1) . . . (2) An employer who is party to a dispute shall be entitled to be represented in any proceeding under this Act by- (a) an officer of an association of employers of which he is a member . . . Rule 36. Summons- (1)Summons issued by a Conciliation Officer, Board, Court, Labour Court or Tribunal shall be in the following form : - Summons to the parties to the dispute – Form “G”. Summons to witnesses to appear and give evidence – Form “H” Summons for production of documents – Form “I”. (2) Whenever the validity of the standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (Central Act XX of 1946 ) is challenged, a Labour Court or Tribunal may summon the certifying officer as defined in that Act and call for the production of any documents in his possession. 37. Service of summons or notice. -- (1) Where there are numerous persons as parties to any proceedings before a Conciliation Officer, Board, Court, Labour Court or Tribunal or an Arbitrator, and such persons are members of any trade union or association, the service of notice on the Secretary, or where there is no Secretary, on the principal officer of the union or association shall be deemed to be service on persons. . . . 47. Right of representatives. -- The representatives of the parties appearing before a Board, Court, Labour Court, Tribunal or an Arbitrator, shall have the right of examination, cross-examination and re-examination and addressing the Board, Court, Labour Court, Tribunal or Arbitrator when any evidence has been called. 6. Since the invalidity of the reference is a common ground of attack in both the groups of writ petitions, it is appropriate to deal with the said question first. 7. It has been contended that in view of the existence of valid settlement in several industrial establishments, there was no justification for making a reference. It has been submitted that a reference can be made under Section 10(1) only if a dispute is in existence or a dispute is apprehended and since settlements are in force in respect of many of the establishments, no reference could have been made as it cannot be said that any dispute was in existence or even apprehended. 8. It is true that a reference under Section 10(1) of the Act can be made only when an industrial dispute exists or is apprehended and as such it is not expected of the Government to make reference under Section 10(1) in respect of Industrial establishments where settlements are still in operation. This defect has been sought to overcome by the learned Additional Advocate General representing the State by making a submission to the effect that in the present case reference was not establishmentwise but it is industrywise. He has submitted that when an industrywise reference is made, it is not desirable to exclude some of the establishments and at any rate if the Industrial Tribunal finds that in respect of some of the industrial establishments valid settlements are subsisting, the Industrial Tribunal can always take appropriate action by answering the question in appropriate manner. In support of the aforesaid contention, the learned Additional Advocate General and Ms. Vaigai representing the Joint Action Committee have placed reliance upon the decision of the Supreme Court reported in 1987(1)LLJ 105 (TAMIL NADU JAC AND TEXTILE TRADE UNION v. GOVERNMENT OF TAMIIL NADU AND OTHERS) 9. A perusal of the aforesaid decision makes it clear that when there is industrywise reference and not establishmentwise reference, it is impermissible to exclude some industrial establishments by the Government on the ground that no dispute is in existence in such industrial establishements and the matter should be left to be decided by the Industrial Tribunal. 10. The next question relates to lack of notice in the conciliation proceedings. Learned counsels for the petitioners have vehemently contended that before the Conciliation Officer many of the Managements had not been represented and notices had not been issued to them. It has been submitted that many of the industrial establishments are not members of any Associations and notice should have been issued to such management and as such the conciliation proceeding was invalid. It has been further submitted by them that in fact the representatives of SIMA or SISSPA or other Associations had made it clear that they were not authorised to represent any of the establishments and notice should be sent individually to various industrial establishments. In this connection, they have placed reliance upon the provisions contained in Section 36(2) of the Industrial Disputes Act and contended that only after proper notice is served, an employer is entitled to be represented by an officer of the Association, which is a matter of own volition of the employer, but there is no authority to thrust upon such employer any particular association by issuing notice to such association and not to the employer concerned. They have also placed reliance upon Rule 46 of the Tamil Nadu Industrial Disputes Rules to contend that the person can represent only by filing appearance in the prescribed form and in the absence of any such authorised representative, the entire conciliation proceedings has to be held invalid. 11. Learned Additional Advocate General has combated these questions by submitting that notices had been issued in accordance with Rule 3 6 to the Associations representing various mills and it was not practicable to sent notice to all the mills individually. He has further submitted that absence of notice to each individual mill is immaterial in view of the fact that strike notice had been issued in respect of an industry which was a public utility industry and as such as envisaged under second proviso to Section 10(1), the Government was bound to make a reference notwithstanding pendency of any conciliation proceeding. He has therefore submitted that even assuming that in the conciliation proceeding there was some technical defect of nature indicated by the petitioner, that is of no consequence as the reference was bound to be made as the notice under Section 22 of the Act had been issued in respect of textile industry which relates to public utility service. 12. Section 36 of the Industrial Disputes Act relates to the question of representation of the parties. This provision does not contemplate the manner in which notice is to be served on a party. Rules 36 and 37 relate to summons and service of summons. Rule 37(1) specifically contemplates that where there are numerous persons as parties to a proceeding and such persons are members of a trade union or Association, the service of notice on the Secretary or on the Principal Officer, where there is no Secretary of the union or the association, shall be deemed to be valid service. After notice is served in the manner contemplated, it is open to the party to be represented in the manner envisaged in Section 36. Rule 46 prescribes the actual manner in which a party is to be represented. Therefore, if summons are served on the secretary or principal officer of the association in the manner prescribed in Rule 37, there is no necessity for any further notice. However, if a particular mill is not a member of the association, obviously notice as contemplated under Rule 37(1) would not be sufficient and the notice has to be served in the prescribed manner. Examined in the light of the above discussion, the submission made on behalf of some of the petitioners that notices of the conciliation proceedings had not been properly issued may appear to be justified atleast in respect of mills/establishments which were not members of any Association at the relevant time, but the absence of such notice would not vitiate the order of reference, though the conciliation proceeding itself may not be of any effect so far as such mills or establishments are concerned. 13. The conclusion of conciliation proceedings as envisaged under Section 12 of the Act is not a sine qua non for making a reference. Even though the procedure contemplated under Section 12(5) is one of the methods for making a reference, it is not the only method. The appropriate Government may form necessary opinion on the basis of the failure report or even otherwise. Therefore, even assuming that there was any defect in the conciliation proceedings in the sense that notices had been issued only to the association and some of the mills were not members of any such association, that will not vitiate the order of reference. In this connection, the decision of the Supreme Court in 1996(II)LLJ 879 (SULTAN SINGH v. STATE OF HARYANA) is applicable and absence of notice or opportunity of hearing is of no consequence so far as the validity of the reference is concerned. 14. Learned counsels appearing for the petitioners have submitted that Joint Action Committee had no legal standing to represent the workers as it is not a registered trade union and as such the proceedings before the conciliation authority is invalid. In view of the fact that dispute at the instance of workman was required to be referred, it is unnecessary to deal with this question, particularly at the instance of various mill owners. Moreover, the materials on record indicate that members of the Joint Action Committee were merely the office bearers of the trade union of various mills. 15. It is next contended that there was no justification in the reference to make two classifications ignoring the classifications earlier made and this amounts to hostile discrimination. This contention is bereft of any substance. The question as to whether any other classification should be adopted or not is a matter to be decided by the Tribunal on merits and it would not be proper for the High Court to express any opinion at this stage. 16. A contention has been raised by several counsels appearing for the petitioners that some of the petitioner establishments have become Sick Industries and are covered under the Sick Industries Act and therefore no reference should have been made in respect of such sick industries. This question is again premature. If ultimately any award would be passed saddling any liability on any such sick industry, whether such award can be enforced or not is a matter to be decided at that stage in appropriate proceeding and it would not be proper to hold that the reference itself is bad because some sick industries are also included in the reference. 17. Learned counsels appearing for some of the petitioners have submitted that in respect of many of the establishments there was no agitation nor any demand had been