Central Administrative Tribunal - Jabalpur
Bheem Singh And Ors. vs Union Of India (Uoi) And Ors. on 29 September, 1998
JUDGMENT
K.M. Agrawal, Chairman
1. The common order of reference is only under the signature of Vice Chairman (J), though the cases were heard by a Division Bench consisting of Vice Chairman (J) and Member (A). The order of reference says, "Since there is a difference of opinion on the said point, (i.e., the point of jurisdiction), the matter is referred to the Hon'ble Chairman for nominating the third Member." However, in the main order written by the learned Vice Chairman, the question of jurisdiction was not examined. In this context the order of reference mentions that the cases "were heard assuming that the Tribunal had jurisdiction to decide the matter and pass orders." Without agreeing or disagreeing with the Vice-Chairman learned Administrative Member observed:
"The dispute in the batch of cases before us in essence relates to granting the applicants retrenchment compensation under the Industrial Disputes Act/ reinstatement in service/granting temporary status to them in terms of the scheme framed by the department in this regard. I would like to make an observation with regard to the jurisdiction of this Tribunal to adjudicate such matters. In my view the jurisdiction of this Tribunal stands excluded in respect of disputes relating to matters that are justiciable by Courts or Tribunals established under the I.D. Act in view of the judgment of the Hon'ble Supreme Court in the case of Krishan Prasad Gupta v. Controller, Printing and Stationery, (1996) 32 ATC 211. As such I think that these O.As should be dismissed for want of jurisdiction of this Tribunal."
Be that as it may. As a third Member, it appears to me that the following question of law is before me for determination:
"Whether this Tribunal has jurisdiction in respect of matters covered under the Industrial Disputes Act, 1947?"
2. It does not appear necessary to give elaborate facts for deciding the above question. It is sufficient to mention that all the applicants in various O.As, are admittedly workmen as defined under the Industrial Disputes Act, 1947, (in short, the "I.D. Act"), and the various disputes raised in different O.As are covered by the provisions of the I.D. Act. In A. Padmavalley and Ors. v. CPWD and Telecom, Full Bench Judgments of Central Administrative Tribunals (1989-1991), Vol. II, Page 334, a Full Bench of this Tribunal consisting of 5 Members took the view that :
"(i) In view of the definition of the term "service matters" given under Section 3 (q) of the Administrative Tribunals Act, 1985, (in short, the "A.T. Act"), "there can be no dispute that the expression service matters covers not only matters provided for in the service rules, but also matters provided for in other laws and statutes including the I.D. Act." (Para 13).
(ii) "Social security to workers is provided for in the Directive Principle as enshrined in Chapter IV of the Constitution of India..... Laws like the I.D. Act and other Acts have been framed to ensure tenure of service to labour. Any system which seeks to throw out of employment a worker overnight without reason and without following the statutory requirements provided for under the law besides being arbitrary would be clearly in violation of the directive principle and the rules of natural justice. In the cases before us, the employees belong to the lower echelons of the society. As already stated earlier, the complaint of several of them is that they are being thrown out of employment overnight either by non-speaking orders or in pursuance of oral orders..... It would, therefore, be too late in the day to contend that the workmen have no rights de hours of I.D. Act." (Para 34).
(iii) "Further, by virtue of deletion of Section 2(b) in the A.T. Act, jurisdiction is conferred on the Administrative Tribunal so as to bring it on par with the High Court exercising jurisdiction prior to the coming into force of the A.T. Act." (Para 25). "That the Administrative Tribunal constituted under the A.T. Act is a substitute for the civil court and the High Court, is beyond doubt." (Para 26).
(iv) "The Administrative Tribunals constituted under the Administrative Tribunals Act are not substitutes for the authorities constituted under the Industrial Disputes Act and hence the Administrative Tribunal does not exercise concur-rentjurisdiction with those authorities in regard to matters covered by that Act." (Para 41).
3. It appears that on the basis of the aforesaid Full Bench decision of the Tribunal in Padmavalley's case the learned Vice Chairman assumed that the Tribunal had jurisdiction to decide the matter and in the light of the earlier decision in Dhaniram and Ors. v. Union of India and Ors., O.A.No. 411 of 1990, decided on 20.8.1995, prepared his common order in the present O.A. No. 71/97 and the other connected O.As. He did not consider the decision of the Supreme Court in Krishan Prasad Gupta's case (supra) about jurisdiction.
4. In the case of Krishan Prasad Gupta v. Controller, Printing and Stationery (Supra), the Supreme Court was considering the question "whether the appeals pending in the Court of the District Judge under Section 17 of the Payment of Wages Act, were liable to be transferred to the Administrative Tribunals under Section 29 of the Administrative Tribunals Act, 1985 for disposal on merits or the jurisdiction of the Authority under Section 15 and that of the District Judge under Section 17 of the Payment of Wages Act to hear and decide claim Cases and Appeals, respectively remains undisturbed." After stating the facts and examining certain provisions of the A.T. Act, the Supreme Court said in paragraph 7 of its judgment that:
"7. Sections 19 and 21 of the Act, read together, indicate that the jurisdiction of the Tribunal can be invoked by a "person aggrieved" by making an application against an 'order' made by the Government or a local or other authority etc., subject to the condition that all other remedies, if available, under the service rules have been availed of by him and that too within the period of limitation indicated in Section 21 in which the starting point of limitation as also the period which would commence from that point have been specified."
The Section 14, which confers, or transfers jurisdiction of all the regular Courts, including High Courts, all over the country to the Tribunal in respect of "service matters," is quoted. Other relevant provisions of Sections 29, 29-A and 28 of the A.T. Act are also examined and, thereafter, it is said:
"19 While all appeals pending in various courts, except those pending in the High Court on the date from which Tribunal became functional stand transferred to the Tribunal by the force of the Act, the appeals in all cases which were decided prior to the establishment of Tribunals, are required to be filed before the Tribunal, if they had not already been filed provided the cause of action on which the case was based is cognizable by the Tribunal." (Emphasis given) In paragraphs 21 and 22 it was further said that:
"21. The "Saving Clause" or the "Saving Phrase" (not in the sense of "Repeals and Savings"), divides "jurisdiction" into twoclasses, namely, 'jurisdiction' which is transferred to and vested in the Tribunal and 'jurisdiction' which is not so transferred and is, on the contrary, saved. When the jurisdiction thus became exercisable by the Tribunal, it was provided by Section 28 that no court shall exercise the jurisdiction, powers and authority on and from the date from which such jurisdiction, powers and authority becomes exercisable by a Tribunal. It, however, excepts--
"(a) the Supreme Court; or "(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force.
"22. It is, therefore, apparent that in spite of Section 14 of the Act, the jurisdiction of the Industrial Tribunal, Labour Courts, or other authorities, under the Industrial Disputes Acts or Authority created under any other corresponding law remains unaffected. The original, or for that matter, the appellate authority under the Payment of Wages Act is neither an Industrial Tribunal nor a Labour Court nor are they 'Authorities' under the Industrial Disputes Act, 1947 but if the Payment of Wages Act is ultimately found to be a "Corresponding law," the jurisdiction of the authorities under the Payment of Wages Act would also be saved."
Then in Paragraph 36 it was held :
"36. The Industrial Disputes Act, 1947 and the Payment of Wages Act, 1936 are, therefore, "corresponding law" qua each other particularly as both are part of the same social legislative canopy, made by Parliament for immediate amelioration of workmen's plight resulting from non-payment, or delayed payment or, for that matter, short payment of their wages."
The Supreme Court further held :
"40. While deleting Clause (b) from Section 2 so as to make the Act applicable to workmen etc., Parliament by the same Amending Act, namely, Act 19 of 1986, introduced Clauses (a) and (b) in Section 28 so as to preserve the jurisdiction of the Supreme Court, the Labour Courts, Industrial Tribunals and, as we have already found, the Authorities under the Payment of Wages Act which we have further found to be "corresponding law" within the meaning of Clause (b) of Section 28.
41. It appears strange that although the Act has been applied to persons working in factories etc., the jurisdiction to try their cases has not been given to the Tribunal. This is, indeed an incongruity. But then incongruity is the habit of legislative drafting.
42. In this connection, we may refer again to Sections 29 and 29-A as under both the sections, the emphasis is on "cause of action". Under Section 29, an appeal shall stand transferred to, and under Section 29-A, an appeal can be filed before the Tribunal if the cause of action on which "suit or proceedings" were initiated would have been cognizable by the Tribunal. Since on the original cause of action, a claim under Section 15 of the Payment of Wages Act could not have been made to the Tribunal, the appeal would not stand transferred to nor can appeal contemplated under Section 17 of the Payment of Wages Act be filed before it. The appellate authority is part of the Justice Delivery System constituted under Section 17 of the Payment of Wages Act. Its jurisdiction will not be affected by the establishment of Administrative Tribunals particularly as appeal has always been treated to be a continuation of the original proceedings. Consequently, the two-tier judicial system, original as well as appellate, constituted under the "corresponding law," like the Payment of Wages Act, are not affected by the constitution of the Tribunals and the system shall continue to function as before, with the result that if any case is decided under Section 15 of the Payment of Wages Act, it will not be obligatory to file an appeal before the Tribunal as required by Section 29-A of the Act but the appeal shall lie under Section 17 of the Payment of Wages Act before the District Judge. The pending appeals shall also, therefore, not stand transferred to the Tribunal under Section 29 of the Act. If it were a mere matter under general or common law and an appeal arising from a suit in a service matter decided by the trial court and pending in the court of the District Judge under Section 96 CPC would have been the subject of controversy whether it would be transferred to the Tribunal or not, our answer would have been an instant 'Yes' but the matter involved before us is different as it relates to the exercise of special jurisdiction by the District Judge under Payment of Wages Act, which is a protected jurisdiction.
43. Any other view will be destructive not only of the "Saving Clause" in the opening part of Section 14 but also of the exceptions carved out in Section 28 together with the "cause of action" theory contained in Section 29 and 29-A of the Act."
5. It would, thus, appear that in the light of the decision of the Supreme Court in Krishan Prasad Gupta (supra), the Full Bench decision of the Tribunal in A. Padmavalley and Ors. (supra), no longer holds good and with the later Constitution Bench decision of the Supreme Court in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 it cannot be asserted that the Administrative Tribunals constituted under the A.T. Act are substitutes for the High Court, because they are held to exercise supplemental--as opposed to substitutional--role in respect of the power of judicial review of the High Courts and the Supreme Court.
6. The learned counsel for the applicants cited the case of Bombay Telephone Canteen Employees' Association, Prabhadevi Telephone Exchange v. Union of India and Anr. AIR 1997 SC 2817 and the case of L. Chandra Kumar (supra), in support of his contention that the jurisdiction of the Tribunal co-exists with that of the Authorities under the Industrial Disputes Act in "service matters" of workmen under the I.D. Act.
7. In Bombay Telephone Canteen Employees' Association (supra), the Supreme Court said:
"9. It is, therefore, clear that there have been two streams of thinking simultaneously in the process of development to give protection to the employees of the Corporation. Its actions are controlled as an instrumentality of the State and the rules are made amenable to judicial review. Where there exists no statutory or analogous rules/instructions, the provisions of the Act get attracted. The employees are entitled to avail constitutional remedy under Article 226 or 32 or 136, as the case may be. The remedy of judicial review to every citizen or every person has expressly been provided in the Constitution. It is a fundamental right of every citizen. In the absence of statutory/administrative instruction in operation, the remedy of reference under Section 10 of the Act is available. Therefore, two streams, namely, remedy under the Act, by way of reference and remedy of judicial redressal by way of proceedings under Article 226 or a petition filed before the Administrative Tribunal to the aggrieved persons, are co-existing."
However, the earlier decision of the Supreme Court in Krishan Prasad Gupta (supra), appears to have escaped notice of the Supreme Court in Bombay Telephone Canteen Employees' Association. Further various provisions of the Industrial Disputes Act and those of the Administrative Tribunals Act were not considered as were considered in Krishan Prasad Gupta, before reaching the conclusion that the power of Tribunal in such matters coexisted with that of the Authorities under the Industrial Disputes Act. It also did not consider the effect of deletion of Section 2(b) and introduction of Clauses (a) and (b) of Section 28 of the Administrative Tribunals Act by Amending Act No. 19 of 1986.
8. Before amendment, Section 2 (b) of the Administrative Tribunals Act provided that the provisions of the Act would not apply to "Any person governed by the Industrial Disputes Act, 1947, in regard to such matters in respect of which he is so governed." At the same time in Section 28 of the Administrative Tribunals Act, exclusion of jurisdiction of Courts, except those mentioned in Clause (a) and (b) was provided. Clause (b) of Section 28 reads as follows--
"(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other cot responding law for the time being in force."
What was the effect of the deletion of Clause (b) of Section 2 was considered by the Supreme Court in Krishan Prasad Gupta's case (supra) and in paragraph 41 it was said :
"41. It appears strange that although the Act has been applied to persons working in factories etc., the jurisdiction to try their cases has not been given to the Tribunal. This is, indeed an incongruity. But then incongruity is the habit of legislative drafting."
An appeal Under Section 29-A could be filed before the Tribunal if the cause of action on which suit or proceedings were initiated would have been cognizable by the Tribunal. If the appeal could not be filed under the Industrial Disputes Act, the original proceedings could also not be transferred or filed before the Tribunal. Hence though the strange situation arises as observed by the Supreme Court in paragraph 41 of its judgment, the effect remains that jurisdiction to try the cases of persons working in factories etc. He does not vest in the Tribunal.
8A. Reference to L. Chandra Kumar's case by the learned counsel for the applicant was misplaced because it does not say that the Tribunal will have any such concurrent or extraordinary powers to entertain disputes covered by the Industrial Disputes Act.
9. It appears that the rights conferred on Workmen by the Industrial Disputes Act can only be enforced through the machinery uno flatu (i.e. at the same time) provided by that Act and only on a reference made by the appropriate government to the Industrial Tribunal or Labour Court concerned, as they are not common law rights.
10. For the foregoing reasons, I am of the view that this Tribunal has no jurisdiction in respect of matters covered under the Industrial Disputes Act, 1947. Accordingly the question is answered.
11. Let the papers be placed today before the Division Bench consisting of Chairman and Miss Usha Sen, Member (Administrative) for disposing of the case of accordance with law.