LexTHE J. K. COTTON SPINNING & WEAVING MILLS CO., LTD. versus THE STATE OF ULTAR PRADESH & ORS.
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3 S.C.R. SUPREME COURT REPORTS 185 Act, both the remedies were open to the authorities, and they could resort to any one of them at their option. The appeal is allowed, and the judgment of the High Court set aside. Though the respondents did not appear, in the circumstances of the case we think we should make an order that the costs shall be paid by them both here and in the High Court. Appeal allowe,d. THE J. K. COTTON SPINNING & WEAVING MILLS CO., LTD. v. THE STATE OF U'l'TAR PRADESH & ORS. (P. B. GAJENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUFTA, JJ.) Industrial Dispute-Proposed dismissal of workmen-Pending dispute-Permission not sought-Reference to adjudication-Vali- dity of-U. P. Industrial Disputes Act, r947 (U. P. 28 of r947), ss. 3 and 8-Government Order dated March IO, r948, els. 5(a), 23. Under ss. 3 and 8 of the U. P. Industrial Disputes Act, r947 the Governor issued an Order dated March 10, 1948, making detailed provisions for the settlement of Industrial Disputes. Clause 5(a) of the Government Order empowered, among others, a recognised association of employers to refer an industrial dis- pute for adjudication to the Conciliation Board. Clause 23 pro- vided that no employer shall discharge or dismiss any workman during the pendency of an inquiry except with the written per- mission of ttie Regional Conciliation Officer, and cl. 26 provided for penalties for contravention oi cl. 23. The appellant proposed to dismiss certain workmen. Though at the time there was a dispute pending inquiry, the appellant did not seek permission under cl. 23 to dismiss the workmen; but the Employers' Associa- tion of Northern India made an application under cl. 5(a) to the Board to adjudicate and give an award that the appellant was entitled to dismi~s the workmen. The workmen contended that the reference under cl. 5(a) was incompetent as the appellant had not first taken proceedings under cl. 23. Held, that the application under cl. 5(a) of the G. 0. was not •• State of Kerala and Ors. v. C. M. Francis <>-Co. Hidaj1atulla1' ]. 1960 December xa. 186 SUPREME COURT REPORTS [1961] 1960 maintainable, as the employer could not take advantage of cl. 5(a) during the pendency of an inquiry when cl. 23 was appli- Th• ]. 1'. Cotton cable. If els. 5(a) and 23 were held to apply at the same time Spinning & there would be disharmony as by resorting to cl. 5(a) when cl. ~3 Weaving Mills was applicable, the employers would be contravening cl. 23 and Co., Ltd. rendering themselves liable to the penalties under s. 26. But v. there was complete harmony if it was held that cl. 5(a) applied Th• State of in all other cases of dismi•sal or discharge except where an Utta' P>adesh inquiry was pending within the meaning of cl. 23. Besides & Ors. cl. 23 was a special p.[OVision which prevailed over the general provisicns in cl. 5(a). Kanpur Mil! Mazdoor Union v. Employers' Association of Northern India, (r952) r L.L.J. r95, approved. De Winton v. Brecon, (r858) 28 L.J. Ch. 598, Churchill v. Crease, (1828) 5 Bing. r77 and United States v. Chase, (1890) r35 U.'S. 255, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 157 of 1959. Appeal from the judgment and decree dated Jan- uary 5, 1956, of the Allahabad High Court in Special Appeal.No. 205 of 1954 and Civil Appeal No. 158 of 1959. Appeal by special leave from the judgment and order dated January 15, 1952, of the Labour Appel- late Tribunal of India, Allahabad, in Appeal No. Cal. 47of1951. M. C. Setalvad, Attorney-General for India and G. C. Mathur, for the appellant. M. R. Krishna Pillai, for respondent No. 5 (In C. A. No. 157/1959) .. C. P. Lal, fcir the State of U. P. and Respondents Nos. 2 and 4 (lit C. A. No. 157/59). 0. P. Verma, for respondent No. 5 (in C. A. No. 158/59). 1960. December 12. The Judgment of the Court was delivered by Das Gupta J. DAS GUPTA, J.-These two appeals r.aise the ques- tion of the maintainability of au application made by the Employers' Association of Northern India, Kan- pur on behalf of the J. K. Cotton and Weaving Mills 3 S.C.R. SUPREME COURT REPORTS 187 Co., Ltd., a member of the Association in connection 1960 with the prol?osed termination of service of certain T.he f. ~-:Cotton members of its Watch and Ward Staff. But before Spinning & we come to the consideration of this question it is Weaving Mills necessary to indicate in brief the long and tortuous
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