Patna High Court
Bengal Coal Co. Ltd. vs Chairman, Central Government ... on 7 May, 1962
Equivalent citations: AIR1963PAT118, [1962(5)FLR418], (1962)IILLJ414PAT, AIR 1963 PATNA 118, (1963 - 64) 24 FJR 325, 1962 BLJR 681, (1962) 2 LABLJ 414, (1962) 5 FACLR 418, ILR 42 PAT 661
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT
1. In this case the petitioner, namely, the Bengal Coal Company Limited, has obtained a rule from the High Court calling upon the respondents to show cause why the order of the Central Government Industrial Tribunal, Dhanbad, in Reference Case No. 19 of 1960, dated the 25th July, 1950, should not be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution.
2. There is no appearance on behalf of the respondent No. 1, but cause has been shown on behalf of Respondents Nos. 3 and 4 to whom notice of the rule was ordered to be given.
3. During the hearing of this case two applications were made on behalf of (1) the National Coal Development Corporation Limited, and (2) Messrs. Lcdna Colliery Company Limited, for being added as additional respondents in this case. By our order dated the 3rd May, 1952, we directed that these two intervenor parties should be made additional respondents to the writ application. On the 25th February, 1954, the Central Government constituted an Industrial Tribunal called the All India Industrial Tribunal (Colliery Disputes) Calcutta, for adjudication of industrial disputes concerning about 1000 coal mines in the country and referred for its adjudication various issues, including the issue of fixing piece-rates for different types of piece-rate workers employed in coal mines. It appears that all employers of coal mines, including the petitioner and the intervenor respondents 5 and 6 and the workmen employed by such employers, in various states, were parties to the reference before the said Tribunal, and all such employers and workmen appeared and adduced oral and documentary evidence before the said Tribunal. On the 26th May, 1956, the said Tribunal made its award (hereinafter referred to as the Coal Award). Against this award the workmen preferred an appeal to the Labour Appellate Tribunal. In appeal the Coal Award was modified by the Labour Appellate Tribunal in certain respects. Paragraph 141 of the decision of the Labour Appellate Tribunal reads as follows:
"in the result, for the loader in Bengal and Bihar, we fix the basic wage of Rs. 1/5/0 plus Rs. 1/11/8, as dearness allowance, making his total wage Rs. 3/0/8 for for loading 2 tubs of 36 cft. For one tub of 35 cft. the remuneration by way of basic and dsarness allowance would be Rs. 1/8/4 and the loader shall he paid at that rate for every tub or a part of a tub in excess of 2 tubs loaded by him in any shift, in other words, for output higher than 2 tubs his basic and clearness allowance per tub will not go down but remain constant at Rs. 1/8/4 per tub of 36 cft."
In the year 1958 the Colliery Mazdoor Congress, which is respondent No. 3 raised a dispute demanding that the conveyor-loaders should be paid the same piece-rates per tub as ordinary tub-loaders. But the petitioner objected that paragraph 141 of the award of the Labour Appellate Tribunal applied only to ordinary tub-loaders and not to conveyor-loaders. In its order No. 3/25/59-1R-11, dated the 31st March, 1960, the Ministry of Labour and Employment, Government of India, stated that whereas doubt has arisen as to the correct interpretation of paragraph 141 of the award of the Labour Appellate Tribunal as to whether the directions contained therein were applicable to conveyor-loaders, the Government of India referred the question for adjudication to the Central Government Industrial Tribunal, Dhanbad, under Section 36A of the Industrial Disputes Act. On the 25th July, 1960, the Central Government industrial Tribunal of Dhanbad gave its decision, upon the reference and the same was published in the Gazette of India risked the 27th August, 1960. By its decision the Central Government Industrial Tribunal held that the directions of the Labour Appellate Tribunal contained in paragraph 141 of its award were applicable also to conveyor-loaders.
4. The argument put forward on behalf of the petitioner in this case is that the decision of the Central Government Industrial Tribunal, Dhanbad, dated the 25th July, 1960, is ultra vires and without jurisdiction, since that Tribunal gave notice only to the petitioner and its workmen before giving its decision. It was submitted that the Tribunal gave no notice to the employers and workmen of other coal mines in India who had appeared before the Coal Tribunal and before the Labour Appellate Tribunal. The argument was stressed on behalf of the petitioner that it was incumbent upon the Central Government Industrial Tribunal as a condition essential for the exercise of its jurisdiction under Section 36A of the Industrial Disputes Act to serve notice on all the parties who were bound by the award of the Coal Tribunal and also by the decision of the Labour Appellate Tribunal. The submission on behalf of the petitioner is that since the Central Government Industrial Tribunal contravened the mandatory provision of Section 36A of the the Industrial Disputes Act, the decision given by it is illegal and without jurisdiction. A similar argument was presented by the learned Government Advocate on behalf of the intervenor respondents 5 and 6 in this case.
5. In cur opinion the argument put forward on behalf of the petitioner and on behalf of the intervenes respondents is well-founded and must be accepted as correct. The question presented for determination in this case depends upon the correct interpretation of Section 36A of the Industrial Disputes Act which reads as follows :
"36A. (1) If, in the opinion of the appropriate Government any difficulty or doubt arises as to the interpretation of provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit.
(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on ali such parties".
In our opinion this section imposes upon the Tribunal the duty of giving the parties to the original award an opportunity of being heard before deciding the question referred to it under Sub-section (1) of Section 36A of the Act. In our opinion the phrase "after giving the parties an opportunity of being heard" means that the Tribunal must give the parties to the original award, or the appellate award, an opportunity of being heard. In other words, the Industrial Tribunal must give notice to the parties to the original award or the appellate award as the case may be, that it is going to decide a question of interpretation referred to it by the appropriate Government under Section 36A, Sub-section (1), of the Act. It is not disputed in 'this case on behalf of respondents 3 and 4 that no notice was given by the Central Government Industrial Tribunal to the management and workman of other collieries who were parties to the Coal Award and also to the award of the Labour Appellate Tribunal. It was however, submitted on behalf of respondents 3 and 4 that giving of notice to the parties under Section 36A (2) of the Act is a mere matter of procedure and does not affect the jurisdiction of the Tribunal to decide the question referred to it by the Government with regard to the interpretation of the award. wE do not accept this argument as correct.
In our opinion the duty imposed upon the Tribunal under Section 36A (2) of the Act to give an opportunity of being heard, in other words to give notice to the parties to the original award, is a condition of jurisdiction, and not a matter of mere procedure. We think that the present csse is an illustration of the familiar principle that whenever special jurisdiction is conferred upon a court or tribunal by a statute and the special jurisdiction is conferred open terms, it is essential that the terms must be complied with in order to create the special jurisdiction. The principle is illustrated by a line of authorities of which the decision in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan, 6 Moo Ind App 134 is a leading, example. In that case the question raised was whether an award made upon a submission to arbitration was within the provisions of Bombay Regulation No. VII of 1928 so as to entitle it to the force of a decree of Court or had the effect of only an ordinary award. Section 3, Clause 1, of this Regulation enacted, among other things, that the deed of reference must contain "the time within which the award is to be given". It was held by the Judicial Committee that since the deed of submission contained no provision for time, the award made by the arbitration was bad, and an award made under it, which had been ordered to be enforced as a decree of Court, should be taken of the file, as the Court had no jurisdiction except upon the fulfilment of the requirements of the Regulation.
6. The same principle is repeated in Jagdishwar Dayal Singh v. Dwarka Singh, AIR 1933 P C 122, in which it was held that in order to justify a sale of a tenure under Section 208, Chota Nagpur Tenancy Act, 1908, al parties interested in the tenure must be joined as defendants in the rent suit, or be sufficiently represented. If all the parties are not joined or represented, the Revenue Court had no jurisdiction to order a sale of the holding under Section 208 of the Chota Nagpur Tenancy Act, and the jurisdiction of the Civil Court to question the sale was not excluded by Section 214 of the Act, To the similar effect is ths decision in Jainandan Ram Tewari v. Ruria Uraon, AIR 193G Pat 590, in which the holding of a certain tenant was sold in execution of a rent decree under Section 208, Chota Nagpur Tenancy Act, and the tenant deposited the amount due, but two days after the statutory period had expired under Section 212 of the Act. The Rent Suit Deputy Collector, in spite of the expiry of the statutory period, accepted the amount and set aside the sale. It was held by the High Court that the deposit made under Section 212 after the expiry of the statutory period was of no avail, and the Rent Suit Deputy Collector had no jurisdiction to make an order setting aside the sale.
7. The principle has also been applied recently by a Division Bench of the Patna High Court in Dr. Shyamakant Verms v. Dr. Harishanker Prasad, AIR 1954 Pat 65 where it was held that the limitation of time prescribed by Rule 5 (1) of the rules framed by the State Government under section 19 of the Bihar and Orissa Municipal Act was not a matter of mere procedure bat a preliminary condition upon which the jurisdiction if the Election Commissioner to deal with the election petition rests, and if the Election Commissioner entertained an election petition beyond the period prescribed by Rule 5(1), he will be acting in excess of his jurisdiction. Applying the principle to the present case we hold that the failure of the Contra! Government industrial Tribunal to give notice of the reference to all the parties to the original award and the award of the Labour Appellate Tribunal vitiates the decision of the Tribunal given under Section 36A of the Act, which is accordingly ultra vires and without jurisdiction.
8. It was submitted by learned counsel on behalf of respondents 3 and 4 that no such objection as to jurisdiction was raised by the petitioner before the Industrial Tribunal and, therefore, the petitioner is estopped from raising this objection in the present case. We do not accept this argument as correct. It is well established that "where, by reason of any limitation imposed by a statute, charter, or commission, a court is without jurisdiction to entertain any particular action ,or matter neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition, which goes to the jurisdiction has not been performed or fulfilled".
(See Halsbury's Laws of England, Volume 9, 3rd edition, page 352). The principle has been applied by the English Court of Appeal in Farquharson v. Morgan, (1894) 1 QB 552. In that case it was agreed by the terms of the lease of a farm that upon the determination of the lease certain matters not within the Agricultural Holdings (England) Act, 1883, should be the subject of compensation to the tenant, and that the procedure contained in Sections 7 to 28 of that Act should apply to such matters as well as to any claim under the Act. Upon the determination of the lease, the tenant's claim, for compensation was referred to arbitration in the manner provided by the Act; and an award was made, which on the face of it showed that compensation had been awarded to him for matters not within the Act. A county court Judge made an order to enforce the award by execution as on an ordinary ccunty court judgment under Section 24 of the Agricultural Holdings Act, 1883. In these circumstances it was held by the Court of Appeal that a writ of prohibition must issue, notwithstanding the agreement contained in the lease, and the fact that the lessor had by his conduct acquiesced in the exercise of jurisdiction by the county court. It was further held in this case that where total absence of jurisdiction appears on the face of the proceedings in an inferior court, the High Court is bound to issue a prohibition, although the applicant for the writ had consented to or acquiesced in the exercise of jurisdiction by the inferior court. At page 556 Lord Halsbury has stated as follows :
"it has been long settled that, where an objection to the jurisdiction of an inferior Court appears on the face of the proceedings, it is immaterial by what means and by whom the Court is informed of such objection. The Court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior Court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the judge of such Court, therefore, must or ought to have known that he was acting beyond his jurisdiction. I find no authority justifying the withholding of a writ of prohibition in such a case. Looking to what appears on the face of the award, in this case, and applying to that the provisions of the Agricultural Holdings Act and the power of enforcing awards given by that Act, I think it is impossible to doubt that there is that on the face of the proceedings which shows that the judge in granting execution under the provisions of that Act was acting beyond his jurisdiction. The Act specifies the matters which are to be the subject of compensation under it; and it appears on the face of the award that there are matters included in the compensation awarded which are outside the provisions cf the Act. Section 24 of the Act provides in substance that a sum awarded as compensation under the Act may be recovered on the order of the county court Judge as money recovered by an ordinary county court judgment. It is apparent that in applying that section to subject-matters which are not included in the provisions of the Act, the county court was exceeding its jurisdiction. Under these circumstances, reluctant as I am to aid the appellant in this case, I am unable to resist the conclusion that the writ ought to issue."
The same view point has been expressed by Lopes, L. J. at page 559 of the report as follows:
"The result of the authorities appears to me to be this, that the granting of a prohibition is not an absolute right in every case where an inferior tribunal exceeds its jurisdiction, and that, where the absence or excess of jurisdiction is not apparent on the face of the proceedings, it is discretionary with the Court to decide whether the party applying has not by laches or misconduct lost his right to the writ to which, under other circumstances, he would be entitled. The reason why, notwithstanding such acquiescence, a, prohibition is granted where the want of jurisdiction is apparent on the face of the proceedings, is explained by Lord Denman in Bodenham v. Ricketts, (1836) 6 N and M 170 to be for the sake of the public, lest, 'the case might become a precedent if allowed to stand without impeachment', and, I will add for myself, because it is a want of jurisdiction of which the Court is informed by the proceedings before it, and which the Judge, should have observed, and of which he himself should have taken notice".
In the same case Davey, LJ has stated the principle as follows at page 560 of the report :
"The other principle is correlative to the first; it is that the parties cannot by agreement confer upon any Court or judge a coercive jurisdiction which the Court or Judge does not by law possess. To do so would be an usurpation of the prerogative of the Crown, and it has always been the policy of our law as a question of public order to. keep inferior Courts strictly within their proper sphere of jurisdiction; see the judgment of the Common Pleas in Worthington v. Jeffries, (1875) 10 C. P. 379. It follows that a party may, notwithstanding that he has contracted to have the dispute decided, or a decision in the matter enforced, by a Court not possessing by law jurisdiction, refuse to be bound by his contract and object to the jurisdiction, subject to the provisions embodied in the Arbitration Act, 1889, so far as applicable. It also follows that jurisdiction cannot be given by acquiescence. These principles are so well known that they need no illustration from decided cases or other authority".
In our opinion the present case falls within the principle expressed in this case and the petitioner is not estopped from raising the point of jurisdiction in the High Court in this writ application. We should also like to add that the proper decision of the Industrial Tribunal as to the meaning of the whole Coal Award or the award of the Labour Appellate Tribunal is not a matter for the management and workmen of one colliery but for all collieries which may be affected by that decision. It is manifest that the dispute was dealt with on an industry-wise basis by the Coal Tribunal and by the Labour Appellate Tribunal, and it would create great confusion and industrial unrest if the award is interpreted in one manner for one colliery and not on a uniform basis for all collieries which are covered by the original Coal Award and by the award of the Labour Appellate Tribunal.
9. For the reasons we have expressed we hold that the decision of the Central Government Industrial Tribunal, Dhanbad, dated the 25th July, 1950, in Reference Case No. 19 of 1960, is ultra vires and without jurisdiction and the case must go back to the Central Government Industrial Tribunal, Dhanbad, for hearing the reference after giving notice to all the parties to the Coal Award and to the award of the Labour Appellate Tribunal, and thereafter proceed to decide the reference under Section 36A of the Industrial Disputes Act in accordance with law.
10. Acting, therefore, in exercise of our jurisdiction under Article 227 of the Constitution, we set aside the decision of the Central Government Industrial Tribunal, Dhabad, dated the 25th July, 1960, in Reference Case No, 19 of 1960, and order that the reference case should go back for decision to the Central Government Industrial Tribunal, Dhanbad, which will now give notice to all the parties to the original Coal Award and the award of the Labour Appellate Tribunal and then proceed to decide the case in accordance with law. wE accordingly allow this application. There will be no order as to costs.