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1978 (9) TMI 196
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..... Justice Cardozo(1): "More and more we lawyers are awaking to a perception of the truth that what divides and distracts us in the solution of a Legal problem is not so much uncertainty about the law as uncertainty About the facts-the facts which generate the law. Let the facts be known as they are, and the law will sprout from the need and turn its branches toward the light." Social realities mould social justice and the compulsions of social justice, in the context of given societal conditions" constitute the basic facts from which blossom law which produces order. The search for the social facts behind s. 3 of the U.K.. Act takes us to the Objects and Reasons Act set out therein: "Following the lapse of Rule 81-A of the Defence of India Rules, the Government of India enacted the Industrial Disputes Act, 1947 but this Act was found inadequate to deal with the spate of strikes, lock-outs and industrial disputes occurring in the province. Government were, therefore, compelled to promulgate the United Provinces Industrial Disputes ordinance, 1947, as an emergency measure till more comprehensive Legislation on the subject was enacted. Although more th....
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....o order made under clause (b)- (i) shall require an employer to observe terms and conditions of employment less favourable to the workmen than those which were applicable to them at any time within three months preceding the date of the order; The testimony from these texts, which are part of the legislative package, is the critical factor underlying governmental order in our constitutional system. An insight into it is worth while as a tool of interpretation of s. 3 of the U.P. Act and its harmonisation with s. 34 of the Payment of Bonus Act, 1965 (the Bonus Act, for brief). A A synthesis of these two statutes is the key to the problems posed by Shri Chitale before us, arguing the case for the appellant. When crisis conditions grip the community the first imperative of good government, 'order', takes precedence; and the Executive transfixed between 'govern' or 'get out' and guided by value judgments resorts to firm action. Exigent solution of problems affecting the well-being of the have-nots, in a social justice setting, desiderates provisional directives to the haves to disgorge payments, not as final pronouncements on rights but as immedia....
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....tation. Roscoe Pounds' words are jurisprudentially apt : (1) "Law is; more than a set of abstract norms or legal order. It is a process of balancing conflicting interests and securing the satisfaction of the maximum wants with tile minimum friction." And, Paton has set the tone for Part IV of our Constitution to be used as background music, if we may say so: "the law itself cannot be impartial...for its very raison d'etre is to prefer one social interest of another."(2) As was the wont, presumably, there was apparently a clamour in 1968 for workers' bonus which hotted up, threatening community tranquillity, smooth supplies essential to the life of the community and maintenance of employment and public safety. Every industrial dispute has a potential for large scale breach of the peace when the factories and workmen affected are numerous. But the general unrest induced by industrial demands and resistance may, on critical occasions, blow up unless quia timet action to de-fuse are taken. This measure has necessarily to be at the administrative level, since the judicial process is prone to suffer from slow motion. The U.P. Legislature, with comprehe....
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....ember that the State Government constituted the tripartite committee under s, 3(c) as an emergency measure before taking steps under s. 3(b) of the Act so that it may inform itself in a responsible way through the recommendations made by the Committee which represents both the wings of the industry. Although s. 3(b) does not depend, for coming into play, upon any report under s. 3(c) this was a measure to ensure fairness to the concerned elements. The Committee held several sittings and, at some stages, the appellant or his representative did participate directly or indirectly in the deliberations. Equally relevant is the circumstance that the worker's representatives (1) The Administration of Justice-Melvin P. Sikes, Chapter 7, Pawns of Politics and of power, P. 120 (2) Notification dated 17.10. 1968 of the U.P. Govt. Labour (C) Dept. actually accepted the formula put forward by the President of the Managements' Association. We mention these circumstances to indicate that the scales, if at all, were tilted in favour of the mill owners and Government, on receipt of the recommendations and anxious to freeze the situation, issued an order under s. 3(b) incorporating and imple....
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....cognised in S. 34 of the Bonus Act existed in this case and so the order which merely gave effect to that agreement was not bad in law. The main ground of attack before us is that the state Government cannot act in the area of bonus without breach of the embargo in s. 34 of the Bonus Act and so the impugned notification must fail for want of power. Although this is the thrust of the submission, Shri Chitale has trichotomised it, as it were. First, the Bonus Act being a complete Code covering profit-sharing bonus, no other law can be pressed into service to force payment of bonus by the managements. Secondly, s.3(b) of the U.P. Act is independent of any agreement between the affected parties and the notification thereunder operates on its own and not by force of consensus or contract between the workmen and the managements. In this view, it was wrong for the High Court to have salvaged the notification under s. 3(b? as embodying an agreement to pay bonus. The third submission of counsel was that ac a fact there was no agreement between the appellant and his workmen within the scope of s. 34 of the Bonus Act since the representatives of the Association had no power to bind its mem....
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.... 34. ( 3 ) Nothing contained in this Act shall be constructed to preclude employees employed in any establishment or class of establishments from entering into agreement with their employer for granting them an amount of bonus under a formula which is different from that under this Act: Provided that any such agreement whereby the employees relinquish their right to receive the minimum bonus under section 10 shall be null and void ill so far as it purports to deprive them of such right." The effect of this provision is that anything inconsistent with the Bonus Act contained in any other law will bow and bend before it. Secondly, agreements made after 29th May 1965 will be valid regarding bonus even if they be inconsistent with the formulae in the bonus Act. Shri Chitale did not dispute the proposition that if a concluded agreement could be read into the recommendations of the tripartite Committee relating to Bonus, it would be valid despites. 34; but he urged before us that it was impossible to weave out of mere recommendations the web of a concluded contract on bonus. He canvassed before us, further, that if an agreement on bonus was necessarily inferable from the ....
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....) did not negate the anterior agreement between the parties. The order of Government under s. 3(b) makes the dual stages perfectly plain. For instance, there is the following tell-tale recital "Whereas the said Committee has succeeded in bringing about an agreement in regard to the payment of bonus for the season 1967-68 between the representatives of the employers and employees on the basis of Payment of Bonus Act, 1965, with certain modifications and adjustments". In unmincing language, the notification states that an agreement on the payment of bonus has been successfully brought about substantially on the lines of the Bonus Act. In the same notification, Government proceeds to state that the said agreement has been forwarded to it in the shape of recommendations which have been accepted and enforced in exercise of the powers conferred by clause (b) of s. 3 of the Act. The anatomy of the order under s. 3(b) being what we have explained above, the inference is inevitable that there is a clear agreement in regard to the payment of bonus for the relevant season between the employers and employees and ingenious argument cannot erode that effect. The next limb of the argument of S....
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....egant jurisprudence. Social justice is made of rugged stuff. Broad consensus between the two parties does exist here, as is emphatically underline by circumstance that 'all the mill owners except the appellant have stood by it-and all the workers'. Where social justice is the touch- stone, where industrial peace is the goal, where the weak and the strong negotiate to reach workable formulae unruffled by the rigidities and formalisms of the law of contracts, it is impermissible to Frown down the fair bonus agreement reached by the representatives of both camps and accepted by the employees in entirety and the whole block of employers minus the appellant, on a narrow construction of the notification under s. 3 (b) of the U.P. Industrial Disputes Act, 1947 or s. 34'. Of the Bonus Act or s. 2(c) of the Contract Act. Labour law is rough hewn and social justice sings a different tune. We reject, without hesitation, the appellant's submission that there was no agreement for payment of bonus within the meaning of s. 34 of the Bonus Act and affirm the concurrent finding of the High Court on that issue. The second seminal problem of power that falls for consideration here ....
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....y easily visualise other explosive occasions which traumatise society and so attract s. 3(b). The specific fact-situation which confronted the State must be seen in perspective. Labour and capital are partners in production. When one of the partners numerous but needy, demands a share in the profits, beyond wages, to better its lot, industrial legislation chalks out rights and limits, prescribes formulae, creates adjudicatory machinery, awards are made, reviewed and enforced and parties seek social justice through the judicial process. The Bonus Act, read with the Industrial Disputes Act, codifies this branch of rights and remedies. But it is a notorious infirmity of the noble judicative methodology that adherence to certain basic processual norms makes procrastinatory delay a besetting sin and an inevitable evil. The end product is good were it delivered promptly but the operation tantalises and sometimes self-defeats. The working class though a weaker class, when organised, is militant. Their privations are too desperate to stand delay Policy formulation by Government takes time, involves consultation; adjudication involves long hearing and appeal upon appeal. The discus....
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....tutional order, guidelines are given by the status to ensure reasonableness in administrative orders. And in a Government with social justice as the watchword, value judgments are essential to exclude arbitrariness. So it is that the executive power under Sec. 3 has the leading strings writ right at the top. The power shall be used only for 'public safety or convenience or the maintenance of public order or supplies and services' essential to the life of the community or for maintaining employment. It prevails for the nonce, produces (hopefully) tentative truce, and then the judicial process decides decisively. It is like an executive magistrate passing a prohibitory order regarding disputed possession or unruly assembly to prevent breach of the peace and making over to a judicial magistrate to hear and decide who is in actual possession or whether the restriction on movement was right. Or, maybe, it is like a magistrate quickly passing orders regarding a possessory dispute leaving it to the civil court to adjudicate on valid title. No one can argue that preventive magisterial power, admittedly provisionally and reasonably. is inconsistent with the civil judicial machinery ....
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....the employer or the employee to require the dispute to be referred for conciliation or adjudication would still be there and could be exercised by them by taking appropriate steps. Upon the construction we place on the provisions of cl. (b) of S. 3 it is clear that no question of discrimination at all arises. Similarly the fact that action was taken by the Government in all emergency in the public interest would be a complete answer to the argument that action is violative of the provisions of Art. 19(1) (g). The restriction placed upon the employer by such an order is only a temporary one and having been placed in the public interest would fall under cl. (6) of Art. 19 of the Constitution". (emphasis added) In a practical sense, this dichotomous reconciliation has humanistic value in administration. Let us take the case of bonus. A broad national policy on bonus, however admirable, needs negotiation, consultation inter-state co- ordination, diplomacy and causes delay. Likewise, an industrial adjudication on bonus, with all the trappings of natural justice, appeal and writ proceedings, consumes considerable time. Hungry families of restive workers in militant moods urgently a....