STRAWBOARD MANUFACTURING CO., LTD. versus GUTTA MILL WORKERS UNION

DAS J.-'fhis appeal has been filed with the special leave granted by this Court on May 10, 1951. By the order granting such leave the appeal has been restricted to one point only, namely, "whether the GoYernment of Uttar Pradesh had the power to extend the time for making the award ex post facto, i.e., after the time limit originally fixed therefor had

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' d ,, expire .

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There is no dispute 'as to the facts. An industrial dispute having arisen between the appellant company and its employees, by Labour Department Notification No. 637 (S'r)/XVIII-53 (ST)/50 dated February ,18; HJ50, the Governor of Uttar Pradesh was pleased, in exercise of the powers conferred by section 3 read with section 4 of the U. P. Industrial Disputes Act, 1947 (U. P. Act No. XXVIII of 1947), to refer the said dispute to the Labour Commissioner, U. P., or a Conciliation Officer of the State Government nominated by him for adjudication on seven several issues specified therein and to direct the adjudicator to conclude the adjudication proceedings and submit bis award to the Government not later than April 5, 1950. 'l'he Labour Commissioner by his letter No. I.M.R. 14-A nominated Shri M. P. Vidyarthi. Regional Conciliation Officer, U. P., as the adjudicator in the above dispute with a direction that he shonld submit his award by March 25, 1950, 11nd that if the proceedings were not likely to be completed within that time he should move the Government for extension of time at lea'lt a week before the specified date. By Notification No. 897 (ST)/XVIII-53 (S'r)/50 dated March 2·0, 1950, th"e Governor was pleased to order that the adjudicator should also adjudicate on an additional issue formulated therein. By a further Notification No. 950 (ST)/XVIII-53 (ST)/50 dated March 24, 1950, the Governor was pleased to refer another additional issue for the decision of the adjudicator. The adjudicator did not make his award on or before April 5, 1950, as directed by the first order of reference but made his award on April 13, 1950, that is to say, 8 days after the expiry ·of the time originally fixed for the making of the award. About thirteen days after the delivery of the award Labour Department Notification No. 1247 (ST)/XVIII-53 (ST)/50 was issued on April 26, 1950, whereby the Governor was pleased, in exercise of powers conferred by section ~ read with section 4 of the Act. to allow the adjudicator in the said dispute to submit his award by April 30, 1950. Thereafter by Notification No. 1447 (ST)/XVIH-53(ST)/50 dated August 1, 1950, the Governor was pleased, in exercise of powers conferred by section 6 (2) read with sections 3 and 4 of the Act, to order that the award be enforced for a period of six months from the date of that order in the first ins.tance and thereafter for such further period as might be prescribed.

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On August 17, 1950, the appellant company preferred an appeal against the award to the Labour Appellate Tribunal c.ontending, inter alia, as follows:-

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"That the award dated April 13, 1950, is vitiated, having been given after the expiry of the time limit.

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(a) In its order dated Februa,ry 18, 1950, para. (5), Government directed the adjndicator to conclude the proceediugs and submit his a.ward not later than the 5th April, 1950. The award is dated 13th April, l950. The Government, however, tried to remedy this defect by the issue of G.0. No. 1247 (ST) XVIH-53 .(S.1')/50 dated.April 26, 1950,. but under the law this of no avail. To be a valid ex.tension ol' date granted to the adjudicator, Government order should have been issued before the 5th April, 1950, to keep the authority of the adjudicator alive. On the da.te the adjudicator made the award, i.e., 13th April, 1950, be bad no power to make a.n award."

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The App&llate Tribunal by its decision given on November 20, 1950, dismissed the a pp ea! with the following observations on the point mentioned above. · ·

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"With regard to the last point our view is that as the Government had the authority under section 6 of the Act to fix time limit for submitting an award it bad also the necessary and incidental power to extend the time limit originally fixed, if it considered it necessary. The first proviso to section 3 empowers the Provincial Government to add more matters for adjudication. It is obvious that additions to the matters already referred to would or may take more time than what had been originally estimated, and so it may lead to an impossible position if the Government bad no power to extend the time originally fixed by it, and it makes no difference, in our opinion, whether the time is extended before or after the expiry of the time originally limited."

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'l'be present appeal is against that ·decision of the Appella.te Tribunal but limited to the question hereinbefore mentioned.

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Dr. Tek Chand appearing in support of this appeal urges that the adjudicator derived his authority under the order made by No.tification No. 637, dated February 18, 1950. Section 6 (1) provides that the adjudicator "shall, within such time as may be specified, submit its award to the State Government." The time specified by the order was" not later than April 5, 1950." On the expiry of that time the adjudicator became functus officio an.a had no power 9r authority to make the award. It tr!fe that two more issues were, by the two subsequent orders, added to the list of issues to be determined by the adjudicator but those issues, Dr. Tek Chand submits, did not involve any detailed investigation ii:i.to fatts necessitating any further time for making the award. lJearned counsel contends that the U. P. Act under considerati9n has no provision empowering the State Government to enlarge the time for the making of the award by the adjudicator. In the circumstances, if the State Government took the view that the addition of those two issues would render the time specified in the original order inadequate for the purpose it should have cancelled the previous notification and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award. The State Government did not adopt that course. · What it purported to do was to extend the time for making the award not only after the time originally fixed had expired but also after the award had actually been submitted. 'l'he argument is that even assuming but not admitting that the. State Government had the power to extend the time before the time had expired it certainly had no power to do so after the award had been made, for it was meaningless, urges Dr. Tek Chand, to extend the time to do an act which had already been done. He refers us to the decision of the Judicial Committee in RnjnHar Narain Singh v. Ohaudhmin Bhagwant Ku.nr(1) where it was held that under the Code of Civil Procedure of 1882 the Court had no power to extend the time for making the award after the award had been filed. Section 514 of that Code enabled the Court to g11ant a further. time and from time to.time to enlarge the period for the deli very of the award but section 521 provided that no award shall be valid unless made within the period allowed by the Court.- Their Lordships of the Privy Council took the view that it would not have been competent for the Court to extend the time after the award had been made, for once the award was made and delivered the power of the Court under section 514 was spent and that although the Court had the fullest power to enlarge the time under that section as lottg as th'e awa:'rd was not completed it no longer possessed any such power when once the award was made. In order to give full effect to section 521 the Judicial Committee had to confine the exercise of.the power to extend the time given to the Court by section 514 to a point of time before the awar'd had been made. 'l'his decision was relied upon by Mr. Justice Harrington sitting singly on the Original Side of the Calcutta High Court in Shib Krishna Dawn & ·co. v. SrLtish Chander Dutt(') which was a case governed by the Code of 1908. The learned Judge overlooked the fact that paragraph 8 of the Second Schedule to the Code of 1908 which corresponded to section 514 of the Code of 1882 expressly conferred power on the Court to allow further time and from time to time, .either before or after the expiration of the period fixed for the making of the award, to enlarge such period and 'that paragraph 15 which corresponded to section 521 of the Code of 1882 contained no provision that an award made out of time was ipso facto invalid and that consequently the reasoning underlying the decision of the Judicial Committee iu the case of Raja Har Narain Singh v. Chaudhrain Bhagwant Kitar (") had no application to the case before him, which was governed by the Code of UJ08. Having regard to the difference in the language of the relevant provisions of the two Codes, the correctness 0f the decision of Harrington J. was doubted by Mr. Justice Chitty also sitting singly on the Original Side of the Calcutta High Court in Sri Lal v. Arjitn Das('). Eventually the decision of Mr. Justice Harrington was dissented from by a Division Bencq of the same High Court sitting in appeal from the Original Side in Jetha Lal Laxmi Chand Shah v. Amrita Lal Ojha('), which held that the Court had power to enlarge the time for making t'he award even after the award had ,s,; r.w.x. ss ac.itually been made. The learned Judges in the last mentioned case referred to and relied on the case of Lord v. Lee(1).' Reference has also been made by learned· counsel for the respondents to Dentron• v. Strong( and to May v. Harcourt( It will be noticed that all those English cases were decided under section 15 of the Common Law Procedure Act. 1854 (17 & 18 Vic, c. 125). It is true that in that English statute there was no provision similar to section 521 of our Code of 1882 which was noticed by the Privy Council in the case cited by Dr. Tek Chand; nevertheless section 15 of the English statute like section 514 of the Code of Civil Procedure of 1882 corresponding to paragraph 8 of the Second Schedule to the Civil Procedure Code of 1908 and like section 9 of the English Arbitration Act, 1889, corresponding to section 12 of the Indian Arbitration Act, 1899, empowered the Court, from time to time, to enlarge the time for making the award. There is a similar provision for enlargement of time· in section 148 of our Civil Procedure Code of 1908. There is, however, no similar provision in the U. P. Industrial Disputes Act, 1947. Section 6(1) of that Act peremptorily requires the adjudicator to submit his award to the State Government "within such time as may be specified" and not "within such time as may from time to time be specified." It is significant that the only occasion when the State Government

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can, under the U. P. Act, specify a fresh period \ of time is when it remits the award for reconsideration under sub-section (2) of section 6, for under subsection· (3) the adjudicator is enjoined to submit his award, after reconsideration, within such period as may be specified by the State Government. Even in this case, under section 6(2) and (3) the State Government may in the order remitting the award specify a time within which the award, after reconsideration, must be filed. 'rhis gives power to the State Government to fix a fresh period pf time to do a fresh act, namely, to reconsider and file the reconsidered award. It does not give .the State G?v.ernment any power to enlarge the time fixed ongma.lly, for the m1tial makmg of the award. Therefore, except where the State Government under section 6 (2) remits the award for reconsideration it has no power even to specify a fresh period of time and much less a power to extend the time for the initial making of the award under section 6 (1). In exercise of the powers conferred by clauses (b),.(c), (d) aud (g) of section 3 and section 8 of the U. P. Industrial Disputes Act, 1947, the Governor was pleased to make an order embodied in Notification No. 615 (L T")/X V III-7 (J"L)-1951, dated March 15, 1951. The proviso to rule 16 of that order authorised the State Government to extend from time to time the period within which the Tribunal or the adjudicator was to pronounce the decision. 'l'hese rules were, however, not in force at the time material to the case before us. Learned counsel appearing for the respondent and for the State of Uttar Prauesh have not referred us to any similar rule which was in force in 1950. In view of the laugua,ge of section 6 of the U. P. Act and in the absence of a rule like the proviso to rule 16 referred to ab.ove it must follow that the State Government had no authority whatever to extend the time and the adjudicator became fimctus officio on the expiry of the time specified iu the original order of reference and, therefore, thenward which had not been made within that time must be helil to be without jurisdiction and a nullity as contended by Dr. Tek Chand.

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Learned counsel for the respondents refers us to the provisions of section 14 of the U. P. General Clauses Act, 1904, which provides that where by any Uttar ·Pradesh Act auy power is conferred on the State Government then that power may be exercised from time to time as occasion requires. Sections 3 and 4 of the U. P. Industrial Disputes Act, 1947, certainly confer power on the State Government to refer disputes to an adjudicator for decision and section 6 (1) may be read as empowering the State Government to specify the time within which the adjudicator to whom an industrial dispute is referred for adjudication is to submit his award. The combined effect of section 14 of the U. P. General Clauses Act and section 6(1) of the U. P. Industrial Disputes Act, 1947, it is contended, is that the adjudicator is enjoined to submit his report "within such time as may from time to time be specified" and that this being the position, the principles laid down in the English decisions referred to above must be held to be applicable to the present case. We are unable to accept this line of reasoning. Under section 14 of the U. P. General Clauses Act the State Government may exercise the power conferred on it by sections 3, 4 and 6, that. is to say, it can from time to time make orders referring disputes to an adjudicator and, whenever such an order of reference is made, to specify the time within which the award is to be made. This power to specify the time does not and indeed cannot include a power to extend the time already specified in an earlier order. The legislative practice, as evidenced by the provisions of the different statutes referred to above, is to expressly confer the power of extension of time, if and when the legislature thinks fit to do so. There is no question of any inherent power of the Court and much less of the Executive Government in this behalf. Section 14 of the U. P. General Clauses Act does not in terms, or by necessary implication, give any such power of extension of time to the State Government and, therefore, the respondents can derive no support from that section.

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Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U. P. General Clauses Act, J 904, and contends that the order of April 26, 1950, should be taken as an amendment or modification, within the meaning of that section, of the first order of February 18, 1950. It is true that the order of April 26, i950, does ex faoie purpor~ ~Q modify ~he order qf ~8 February 18, 1950, but, in view of the absence of any distinct provision in section 21 that the power of

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d d'fi · amen ment an mo catwn conferred on the State Gtvernment may be so exercised as to have retrospective operation the order of April 26, 1950, viewed merely as an order of ainendment or modification, cannot" by virtue of section 21, h:i.ve that effect. If, therefore, the amending order operates prospectively, i.e., only as from the ate oft e order, it cannot validate the award whic.h had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was functus officio and had no jurisdiction to act at all. \Ve do not think the respondents can derive any support from section 21 of the U. P. General Clauses Act.

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The result, therefore, is that this appeal must be allowed and the award must be declared to be null and void and we order accordingly. In the circumstances of this case we make no order as to costs.

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Appeal allowed. Agent for the appellant : Ganpat Rai. Agent for the respondent: S. D. Sekhari. Agent for the intervener: 0. P. Lal. ANGLO-FRENCH TEXTIT~E CO., LTD.

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v. COMMISSIONER OF INCOME-TAX, MADRAS.

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[MEHR CHAND MAHAJAN, DAS, VIVIAN BOSE and BHAGWATI JJ.]

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(XI of 19e2), 24 ( 2), 84-Return shoiving loss- lVhether can recorded and carried forward-

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. .\n assessee submitted a return showing the income as l<nil" ~nd this return was accepted by the Income-tax Officer. In the

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