National Coal Co. Ltd v. L.p.dave

Choudhary, J.

(1) This application by the petitioner, National Coal Co. Ltd., P. S. Katrasgarh District Manbhum, is for issue of an appropriate writ under Article 226 of the Constitution of India with regard to an award given by the Industrial Tribunal under Section 33A, Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act).

(2) An industrial dispute with regard to the payment of full pay and allowance to the workmen for the holidays on the 15th of August, 1950, the 26th January, and the 15th of August, 1951 and the 26th of January, 1952, and for the holidays on the Independence Day and the "Republic day" in future existed or was apprehended between the employers of 1078 collieries and their workmen. The Central Government, therefore, by Notification No. S. R. O. 810 and Order No. L. R. 2(365) dated 5-5-1952, referred it, in exercise of the powers conferred by Section 10 of the Act, for adjudication to the Central Government Industrial Tribunal at Dhan-bad of which Sri L. P. Dave, opposite party 1, was the sole member and chairman, and it was registered as Reference No. 6 of 1952. The list of these 1078 collieries was given in Schedule 1 of the Notification. On 26-9-1953, the Industrial Tribunal gave its award which in pursuance of Section 17 of the Act, was published by Notification No. S. R. O. 1896 dated 6-10-1953. The collieries owners filed an appeal against the said award to the Labour Appellate Tribunal on 6-11-1953. In August, 1953, while the matter was pending before the Industrial Tribunal, opposite party 2 to 83 made an application before it for an award under Section 33A of the Act on the allegation, as appears from the copy of the complaint petition produced before us on their behalf, that the petitioner has contravened the provisions of Section 33 of the said Act inasmuch as it has altered the conditions of their services to their prejudice and punished them in various ways without express permission of the Tribunal. It was alleged that majority of the workmen were not allowed to work on 13-6-1953 and all of them were refused work and wages since 15-6-1953, without any notice, and that wages to some and bonus to all were not paid for a certain period. This application was numbered as Appln. No. 228 of 1953, and notice of it was served on the petitioner who appeared and contested the proceeding, inter alia on the ground that it did not contravene the provisions of Section 33 of the Act and, as such, Section 33A had no application. This contention was overruled by the Industrial Tribunal and it gave its award on 12-1-1954, which was published by notification No. S.R.O. 364 dated 23-1-195

4. According to that award, the petitioner was held to have caused a lock-out from 13th, 15th, and 16th June, 1953, respectively in case of different workers and was directed to reinstate those workmen who had not already been taken in and to pay certain sums of money to those who were found to have been refused work on and from the dates mentioned above. Against this award the petitioner has filed an appeal before the Labour Appellate Tribunal and has obtained therefrom an order for stay of the implementation of the award on certain conditions. The petitioner has also come up to this Court, for a writ in the nature of certiorari to quash the said award.

(3) It may be mentioned here that the order of reference to the Industrial Tribunal dated 5-5-1952, the award in Reference No. 6 of 1952, dated 26-9-1953, and the award under question made under Section 33A of the Act are enclosed with the counter affidavit sworn by the Under-Secretary to the Government of India, Ministry of Labour, as annexure A, B and C respectively.

(4) The first point taken on behalf of the petitioner is that the award in question must be quashed as being without jurisdiction inasmuch as it was made against a party which was not a party in the dispute that was referred for adjudication to the Industrial Tribunal. It is contended that the petitioners colliery was not one of the 1078 collieries referred to above and as such, it was not a party to the dispute bearing Reference No. 6 of 1952. That being so, it was urged that neither there could be a contravention of any of the provisions of Section 33 of the Act, by the petitioner nor could a proceeding under Section 33A of the Act be maintainable against it. In the alternative it is urged that no notice of the above reference was ever served on it and as such acts alleged to have been done by it in ignorance of the reference could not come within the mischief of Section 33 of the Act. In reply to the above argument it is contended on behalf of the opposite party, firstly, that the petitioner was a party to the dispute referred to above and a notice of the reference was served on it and secondly, that no such objection was raised by it before the Industrial Tribunal and, as such, it could not be raised here for the first time on a writ application.

(5) Section 33A of the Act, on its own terms, can have application only to a case where there has been a contravention by an employer of the provisions of Section 33 during the pendency of the proceedings before a Tribunal. The latter section prohibits an employer from doing certain acts during the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any Industrial dispute except under certain circumstance mentioned therein. That section, therefore, must be construed to contemplate that in crder that the above prohibition should apply to an employer, he must be a party to the proceedings in the Industrial dispute. It is not disputed before us that the petitioner was required in law, to have been made a party to the dispute so as to give jurisdiction to the Tribunal to pass any order contemplated by the Act as being binding on it. Thus, in order to give jurisdiction to the Tribunal to pass an award under Section 33A of the Act against the petitioner, it must have been a party to the Industrial dispute.

(6) On the above contentions, however, the questions that fall to be determined (1) whether the petitioner was a party to the Industrial dispute bearing Reference No. 6 of 1952 and (2) whether a notice of this reference was served on it. Both these questions are pure questions of fact, which if they are controversial, cannot ordinarily be gone into by this Court on a writ application under Article 226 of the Constitution. It is only where the facts are undisputed that this Court exercises its jurisdiction under the above article if those facts attract the exercise of such jurisdiction. In this case the petitioner has said in its application that it was not a party to the Industrial dispute and no notice was served on it with regard to that proceeding. Two counter affidavits have been filed challenging the statements of the petitioner, one by the Secretary of the Bihar Colliery Mazdoor Sangh and the other by the Undersecretary to the Government of India, Ministry of Labour, New Delhi. Both of them have made statements in their respective affidavits, according to which the petitioner is said to have been a party to the dispute. The Secretary of the Bihar Colliery Mazdoor Sangh has stated that all the collieries were included in the schedule containing the names of the collieries, the management and the workmen of which were parties to the dispute referred to above. He has further stated that all the collieries at Angarpathra were parties to the reference. He has also stated that the National Coal Co. Ltd., namely, the petitioner, was interested in the colliery at Angarpatara and was a party to the reference. The Under-Secretary by his affidavit traversed the averment made by the petitioner about its not being a party to the reference and has stated that Angarpathra colliery P.O. Katrasgarh was item No. 17 of the List of the Collieries referred to in Schedule 1 of Annexure A and that notice of the proceeding was served on all the collieries mentioned in that schedule. Thus on the contentions raised by the parties the questions whether the petitioner was a party to the reference or not, and whether notice of it was served on it or not, are very controversial, and it is not possible for this Court to enter into those controversial questions on this writ application. Mr. B. C. Ghosh, counsel for the petitioner, has however argued that Item 17 of Schedule l referred to above is Angrapathra Colliery Katrasgarh P.O. and there is nothing to show that it belonged to the petitioner. He has submitted that there are various collieries at Angarpathra and the colliery of the petitioner is called National Coal Co. Ltd., Katrasgarh and not Angarpathra Colliery. In order to support this contention he has filed a supplementary affidavit and has put in several annexures to show that the petitioner was never referred to by any one as Angrapathra colliery Katrasgarh and all along it was described by all concerned as being National Coal Co. Ltd. But from appendices G and H of the report of the Indian Coal Grading Board, 1950, printed by the Government of India Press, Calcutta, which was produced before us by Mr. Ghosh, it appears that the petitioners colliery is described therein as Angarpathra Colliery. It cannot, therefore, be said that Angarpathra Colliery Katrasgarh P.O. being item No. 17 of Schedule 1 referred to above, could not be the colliery of the petitioner. Mr. Ghosh has, however, drawn attention to the fact that in those appendices several collieries, including, of course, the petitioners colliery, have been described by the name of Angarpathra Colliery and it has, therefore, been urged that item No. 17 of Schedule 1 of Annexure A could not necessarily be said to relate to the petitioners colliery. It is thus a question of fact as to which colliery was meant when the notification referred to above mentioned in item No. 17 of Schedule 1 as Angarpathra Colliery Katrasgarh P.O. to be a party to the dispute. It is noteworthy that the workmen who made a complaint under Section 33A of the Act before the Industrial Tribunal clearly stated in their petition of complaint that the petitioner was a party to the dispute. The petitioner filed written statement in that case contending, inter alia, that it had not contravened the provisions of Section 33 of the Act and, as such, Section 33A had no application to it. It did not put forward any objection there that it was not a party to the reference. This conduct of the petitioner is very relevant and it clearly shows that the position that it took before the Industrial Tribunal was that it was a party to the dispute. The Industrial Tribunal also seems to have proceeded on the footing that it was a party to the reference. In para 2 of the award it has clearly stated that the complainant and the opposite party, namely, the petitioner, were parties to the dispute in Reference No. 6 of 1952. Even in the award (Annexure B) given in the main dispute there are certain passages which clearly indicate that the petitioner was also a party in the Reference. In para 2 of that award it is stated that practically the collieries referred to in Schedule 1 of the notification represented all the collieries in the whole of India and that the above dispute relates to the entire coal industry and the workmen employed in the coal industry in the whole of India. Again in para 9 it is stated that the present dispute is between the entire coal industry on the one hand and all their workmen on the other. It has been further made clear in para. 12 where it has been mentioned that the present reference has been made between the entire industry i.e. between all the collieries in the whole of India and their workmen as a whole. The facts and circumstances referred to above leave a clear impression that the petitioner must have been a party to the original dispute and was liable to the consequences of Section 33A of the Act if it had contravened the provisions of Section 33 of that Act. Be that as it may, it is not possible for this Court to entertain such a controversial question of fact when it was not raised by the petitioner at the earliest opportunity before the Industrial Tribunal.

(7) The facts disclosed in this case show that the petitioner submitted to the jurisdiction of the Tribunal and it has, therefore, been urged on behalf of the" opposite party that it cannot raise the question of want of jurisdiction. On behalf of the petitioner, however, it has been argued that consent of the parties cannot give jurisdiction to a Court or a Tribunal if it has none. This proposition is undoubtedly true when there is inherent lack of jurisdiction in the Court or the tribunal. But where the want of jurisdiction has to depend upon proof of certain facts, then if those facts have not been raised and proved, a party cannot be permitted to raise a plea of want of jurisdiction so as to render its decision void and ineffective. Moreover, when a party submits to the jurisdiction of a Court and takes a chance of getting a decision in its favour, it cannot be permitted to challenge the jurisdiction of that Court after the decision has gone against it. This principle of law is supported by numerous authorities and it will be enough to notice only a few of them. In Dwarka Prasad v. Jai Barham, 1922 Pat. 323 (AIR V 9) (A), a Bench of this Court held that where the want of jurisdiction is not apparent on the face of the proceedings but the absence of jurisdiction depends on a fact in the knowledge of a party, then if he does not bring that fact forward but allows the Court to proceed with the Judgment he ought not to be permitted to impeach the jurisdiction in any collateral proceeding. The same view was reiterated in Girwar Nara-yan v. Karala Prasad, 1933 Pat. 104 (AIR V 20) (B) wherein it was held that ordinarily if a party does not raise the question of jurisdiction during the trial he should not be allowed to do so after the proceedings were carried to completion, provided the question of jurisdiction depends upon the decision of some fact or point of law. In Shibnarayan Das v. Satyadeo Prasad, 1943 Pat. 44 [LQ/PatHC/1942/94] (AIR V 30) (C) a question was raised in criminal revision that the Magistrate in starting a proceeding under Section 145, Criminal P. C., acted in excess of his jurisdiction. Their Lordships did not allow that question to be raised on the ground that it was never raised at the trial. In this connection I may better quote the observation made by Their Lordships which is as follows :--

"The second party having waited for a year and having allowed the order initiating the proceeding to go unchallenged so long, cannot now be heard to complain of excess of jurisdiction, because the final order has gone against them."

The cases referred to above are cases which were tried under ordinary civil or criminal jurisdiction. The above principle is more applicable and has been applied to writ cases generally.

(8) In the King v. Williams, 1914-1 K. B. 608 (D), a baker was put up before a Bench of two justices of the peace for having committeed an offence under the Bread Act, One of those justices of the peace was disqualified from acting as a jus- tice of the peace because of his being concerned in the business of a baker. He, therefore, was not capable of being one of the Justices of the peace to decide the case. This objection was, however, not taken before them. Ultimately, the justices of the peace convict ed the baker. He thereafter made an application before the High Court for issue of a writ of certio- rari and raised the question of the incapacity of one of the justices of the peace. The application was refused on the ground that the question of jurisdiction of one of the Justices of the peace was not taken before them and, as such, the petitioner was disentitled from obtaining any relief. Chan- nell J. who gave the leading Judgment observed as follows :

"A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relied to impugn them. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his position to that of one of the public having no particular interest in the matter."

In Marsden v. Wardle, (1854) 118 E. R, 1302 (E), the principle of law on this point was, if I may say so with respect, very lucidly laid down by Coleridge, J. as follows :--

"There is reason for refusing the writ after judgment in the Courts where the proceedings set forth the detail of the matter, and the party has the opportunity of moving before judgment. Then, if he chooses to wait and take the chance of judgment in his favour, he may be held incompetent to complain of excess of jurisdiction if judgment is against him. There is, however, good reason for departing from this principle where the defect is apparent on the face of the proceedings below....."

In Gandhinagar Motor Transport Society v. State of Bombay, 1954 Bom. 202 [LQ/BomHC/1953/80] (AIR V 41) (F), it was held that before a question of jurisdiction of a tribunal is raised on a petition under Articles 220 and 227, objection to jurisdiction must be taken before the tribunal whose order is being challenged. In my opinion, therefore, the petitioner having, contested the proceeding under Section 33A of the Act before the Industrial Tribunal without raising any objection as to its jurisdiction and as to its (the petitioners) not being a party to the reference, took a chance of having a decision in its favour on merits by that tribunal and now that the tribunal has decided against it, it cannot challenge its jurisdiction and is not entitled to have a writ issued on this ground.

(9) The next contention raised on behalf of the petitioner is that the allegations made in the complaint petition filed under Section 33A of the Act do not disclose a case of contravention of Section 33 and as such the Tribunal had no jurisdiction to pass an award under Section 33A of the Act. The alle- gations referred to above relate to non-payment of wages of certain workmen for a certain period, non-payment of bonus of all the workmen for the first quarter of 1953 and refusing work to majority of the workmen on 13-6-1953, and to all of them, from 15-6-1953, without any notice. Section 33 of the Act states that during the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall -- (a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be. In order, therefore, that the petitioner could be said to have contravened the provisions of Section 33 of the Act, it must have, during the pendency of the proceedings before the Tribunal, (a) altered, to the prejudice of the workmen concerned in the dispute, the conditions of service appli-cable to them immediately before the commence-ment of such proceedings or (b) discharged or punished, whether by dismissal or otherwise, any workman concerned in that dispute without the express permission in writing of the Tribunal.

(10) The acts complained of were, no doubt, done without the permission of the Tribunal and during the pendency of the proceedings before it, The only question that then remains to be considered is whether they could come within the purview of Clauses (a) and (b) of Section 33 of the Act, or, in other words, whether they amounted to punishment or alteration In the conditions of service. Non-payment of wages, in my opinion, is neither an alteration in the conditions of service nor does it amount to any punishment. Such a case comes and has to be dealt with under the provisions of the Payment of Wages Act. Similarly, payment of bonus is not a condition of service and (sic) non-payment does not amount to punishment. As such, non-payment of bonus and wages cannot come within the mischief of Section 33 of the Act. The Industrial Tribunals also have taken the same view of the matter. In Victoria Cotton Mills v. Their Workers, 1951-1 Lab. LJ 502 (G) the Industrial Tribunal held that bonus was not a condition of service and its non-payment could not give rise to a complaint under Section 33A of the Act. In Shama Biscuit Co. Ltd. v. Their Workmen, 1952-2 Lab. LJ 353 (H) it was held that an application under Section 33A did not lie to enforce payment of wages for which action lay under the Payment of Wages Act. Thus the nonpayment of wages and bonus, which does not come within the mischief of Section 33 of the Act, cannot be a ground for an action under Section 33A of the Act.

(11) The refusal of work to the workmen as alleged in the complaint petition amounted to a lock-out which has been defined in Section 2(1) of the Act to mean the closing of a place of employment or suspension of work, or the refusal by an employer to continue to employ any number of per-sons employed by him. The finding of the Industrial Tribunal, Sri Dave, is also to the same effect as will appear from para 17 of the award, Annexure C which runs as follows: "On the whole, I am satisfied that the management refused work to all workmen from the 15th though it appears that one or two clerks may have been allowed to do some work on 15th; but on and from 16th, no clerk was allowed to work. The man- ual workers were not allowed to work on and from 13th. In my opinion, it was a case of lock-out from 13th, 15th and 16th respectively in the case of different workers and it was not a case of strike from 17th. It has been argued by Mr. Ghosh on behalf of the petitioner that lock-out does not either alter the conditions of service nor does it amount to a punishment and, as such, it is not covered by any of the two clauses of Section 33 of the Act. In this connection he has drawn our attention to some of the decisions of the Industrial Tribunal and the Labour Appellate Tribunal. In 1951-1 Lab. LJ 502 (G) referred to above it was held that in the case of a lock-out the provisions of Section 33 would not attract as it does not alter the conditions of service. In Clive Jute Mills v. Their Workmen, 1951-1 Lab. LJ 663 (I) it was held that a lock-out declared by the management during the pendency of adjudication proceedings does not amount to contravention of Section 33 of the Act. This decision was affirmed by the Labour Appellate Tribunal in Jute Workers Federation, Calcutta v. Clive Jute Mills, 1951-2 Lab. LJ 344 (J) and it was held that a lock-out did not attract the contravention of Clauses (a) and (b) of Section 33 of the Act. On behalf of the opposite party, on the other hand, leliance has been placed, on Luxmi Devi Sugar Mills Ltd. Deoria v. Ram Sarup, 1953 Lab. AC 244 (K) in which it was held that the conduct of the management (which came within the definition of lock-out) amounted to punishment of a worker whether by dismissal or otherwise and was, therefore, in contravention of Section 22(b). Industrial Disputes (Appellate Tribunal) Act, 1950. It may be noted that Section 22 of the said Act is almost similar to Section 33 of the Industrial Disputes Act and, therefore, according to this decision, a lock-out would come under the mischief of that section. I am unable to agree with the view taken in this case and, in my opinion, the opposite view taken in the other cases referred to above that lock-out does not come within the mischief of Section 33 is the correct view.

(12) The Act itself gives sufficient indications for holding that lock-out does not contravene the provisions of Section 33. Section 23 of the Act, so far as is relevant for the purpose of the present case prohibits an employer of any workman from declaring a lock-put during the pendency of proceedings before a tribunal. Section 24 makes a lock-out declared in contravention of Section 23 illegal. Section 2(3(2) provides for the penalties to be imposed on an employer who commences, continues or otherwise acts in furtherance of a lock-out which is illegal under this Act. According to this section, he is liable to be punished with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both. Section 31(1) provides for the punishment of an employer who contravenes the provisions of Section 33 and makes him liable to be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both. Thus the Legislature itself has made distinction between an illegal lock-out and actions contravening the provisions of Section 33 of the Act and it cannot be legitimately argued that the offence of declaring illegal lock-out falls also within the offence of contravening the provisions of Section 33. Had it been so, punishment for the two acts would not have been separately provided in the Act. It will appear that in the original Industrial Disputes Act, 1947, there was no provision like Section 33A and it was inserted in it by Section 34, Industrial Disputes (Appellate Tribunal) Act, 1950. As obser- ved by their Lordships of the Supreme Court in the Automobile Products of India Ltd. v. Rukmaji Bala, 1955 SC 258 [LQ/SC/1955/6] ((S) AIR V42) (L), the only deterrent against a contravention by an employer of the provisions of Section 33 was the prosecution of the employer under Section 31, which was hardly any consolation for the workmen, and, therefore, this section was inserted in the Act to confer distinct benefits on the workmen and give some additional jurisdiction and power to the authorities mentioned therein. No such additional provision was made in the Act with regard to the commission of the offence of illegal lock-out as defined in Section 24 of the Act for which punishment was provided in Section 26, as already stated. It is, therefore, manifest that lockout was not contemplated by the Legislature to come within the scope of Clause (a) of Section 33 as altering the conditions of service or of Clause (b) of that section as discharging or punishing any workman. Thus on the finding of the Industrial Tribunal in the present case itself, the award made by it is wrong on the very face of it.

(13) It has been contended on behalf of the opposite party that a wrong decision cannot be corrected by certiorari. It is true that this Court does not sit in appeal against the decision of the inferior Court or tribunal while dealing with the matter on an application for issue of a writ under Article 226 of the Constitution and a decision wrong either in fact or in law will not ordinarily be interfered with by this Court on such application. Different considerations may, however, arise where the decision is wrong on the very face of it, that is to say, where the order sought to be quashed is a speaking order. As held by their Lordships of the Supreme Court in Hari Vishnu v. Ahmad Ishaque, 1955 SC 233 [LQ/SC/1954/177] ((S) AIR V42) (M), an error in the decision or determination itself may be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e. g., when it is based on clear ignorance or disregard of the provisions of law, or, in other words, it is a patent error which can be cor-rected by certiorari. In R. v. Industrial Disputes Tribunal, 1953-1 All ER 593 (N) an award which was bad on the very face of it as having been directed to be effective from a date when there was no dispute was quashed and a writ of certiorari was issued. In R. v. Northumberland Compensation Appeal Tribunal, 1951-1 All ER 268 (O) it was held that as the tribunal had stated on tne face of the order the grounds on which they had made it and as it appeared that in law those grounds were not such as to warrant the decision to which they had come, certiorari would issue to remove the order into the High Court to be quashed. This decision was affirmed on appeal in Rex v. Northumberland Compensation Appeal Tribunal, 1952-1 KB 338 (P) wherein it was held that an order for certiorari can be granted by the Divisional Court to bring into the Kings Bench Division to be quashed a decision of an inferior Court, such as a statutory tribunal, on the ground of error on the face of the record. In the present case the Industrial Tribunal could have no jurisdiction to proceed with the complaint petition filed under Section 33A of the Act unless there had been a contravention of the provisions of Section 33 of that Act. On the findings of the Industrial Tribunal, as already observed, there was no contravention of any of the provisions of Section 33. Thus, as already stated, the award made by the Industrial Tribunal was wrong on the very face of it and it must, therefore, be quashed.

(14) It has, however, been argued on behalf of the opposite party that against the decision of the Industrial Tribunal an appeal lay to the Labour Appellate Tribunal and the petitioner has already availed himself of that remedy by filing an appeal before the Labour Appellate Tribunal which is still pending and, as such, it could not move this Court under Article 226 of the Constitution. In support of this contention, reliance has been placed on a Bench decision of the Calcutta High Court in Radha Kissen v. Rajaram Rao, 1955 Cal 341 [LQ/CalHC/1954/244] ((S) AIR V42) (Q). That case no doubt supports the above argument though in that case even on merits the petitioner was found not be entitled to have a writ issued. Their Lordships, however, have given no reasons for taking the above view. In the case of Jackson v. Beaumont, (1885) 156 ER 844 (R) an appeal against the direction of the county court judge was pending at the time when the writ application was being heard. Even then writ of prohibition was issued in that case. In my opinion the pendency of the appeal before the Labour Appellate Tribunal against the award in question cannot prevent the petitioner from seeking a relief by way of issue of writ from this Court when the award on its own terms has been found to be without jurisdiction. The contention raised on behalf of the opposite party in this regard is, therefore, overruled.

(15) For the reasons given above, it is manifest that the award passed in this case under Section 33A of the Act is without jurisdiction and, therefore, an order of certiorari must go and it must be quashed. The petitioner is entitled to costs. Hearing fee is assessed at Rs. 100.