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Hongkong and Shanghai Banking Corporation Vs. Bhaidas Pranjivandas and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberO.C.J. Misc. No. 352 of 1950
Judge
Reported inAIR1951Bom158; (1951)53BOMLR381
ActsConstitution of India - Article 226; Industrial Disputes (Appellate Tribunal) Act, 1950
AppellantHongkong and Shanghai Banking Corporation
RespondentBhaidas Pranjivandas and anr.
Appellant AdvocateA.C. Beynon and ;D.M. Rege, Advs.
Respondent AdvocateMurzban Mistry, Adv. for Resp. 1 and ;M.P. Laund and ;Buch, Advs. for Resp. 2
Excerpt:
.....industrial tribunal---application by party to award to enforce award--petition by other party for writ of prohibition against party enforcing award--maintainability of such petition.; the industrial tribunal constituted under the industrial disputes act, 1947, once it makes an award, becomes, for the purpose of enforcement of the award, functus officio, and there is then no proceeding whatever pending before the industrial tribunal, which could be prohibited.; therefore a petition for the issue of a writ of prohibition against a party to the award, seeking to restrain him from enforcing the award of the industrial tribunal, either by an application under section 20 of the industrial disputes (appellate tribunal) act, 1950, or otherwise, is not maintainable. such a prayer would be..........which has its registered office in bombay, for the following relief;-that the court do issue a writ of prohibition against the resps. prohibiting them from continuing the proceedings by making an application under section 20, industrial disputes (appellate tribunal) act, or otherwise howsoever executing or enforcing or attempting to execute or enforce the award.2. the petition was filed against two persons, bhaidas pranjivandas dalai & narayan dharmaji todankar, who were impleaded on behalf of themselves & all other employees of the petitioners employed at the bombay branch establishment & interested or claiming the benefits of the award of the all india industrial tribunal (bank disputes) dated 31-7-1960.3. the material averments made in the petition may be shortly stated. by a.....
Judgment:

Shah, J.

1. This is a petition filed by the Hong-kong & Shanghai Banking Corporation, a banking company, which has its registered office in Bombay, for the following relief;-that the Court do issue a writ of prohibition against the resps. prohibiting them from continuing the proceedings by making an application under Section 20, Industrial Disputes (Appellate Tribunal) Act, or otherwise howsoever executing or enforcing or attempting to execute or enforce the award.

2. The petition was filed against two persons, Bhaidas Pranjivandas Dalai & Narayan Dharmaji Todankar, who were impleaded on behalf of themselves & all other employees of the petitioners employed at the Bombay branch establishment & interested or claiming the benefits of the award of the All India Industrial Tribunal (Bank Disputes) dated 31-7-1960.

3. The material averments made in the petition may be shortly stated. By a Notification dated 13-6-1949, the Central Govt. in exercise of the powers conferred by 8. 7, Industrial Disputes Act, 1947, constituted an Industrial Tribunal 'for adjudication of disputes in banking companies', & by an order of reference dated 13-6-1939, reciting that an industrial dispute had arisen between the banking companies mentioned in Sch. I to the Order which included their branches & their employees, in respect, so far as the Central Govt. was aware, of the matters specified in Sch. II to the said Order, referred the industrial dispute for adjudication to the Industrial Tribunal. By a notification dated 12-8-1949, the Central Govt.directed that the order of reference dated 13-6-1949, be amended by insertion of the words 'or is apprehended' after the words 'whereas an industrial dispute has arisen' in the opening recital of the order of reference. The Industrial Tribunal made & signed its award on 31-7-1950, which was published in the Gazette of India on 12-8 1950. It was claimed that for diverse reasons mentioned in the petition the award of the Tribunal was either without jurisdiction, or that the Tribunal acted in excess of its jurisdiction. By reason of the provisions of Section 17A(1), Industrial Disputes Act the award of the Tribunal became enforceable on 12 9-1950, & it was apprehended that the resps., the employees of the petitioner, would apply to the appropriate Govt, for enforcement of the award under Section 20, Industrial Disputes (Appellate Tribunal) Act, 1950. The petitioners, therefore, applied for the issue of a writ of prohibition against the resps.

4. Resp. 1, who represents the clerical staff of the petitioner bank, has stated that he is not concerned with the question sought to be raised by the petitioners, & has taken no part in the proceedings. On behalf of resp. 2 it is contended that there is no proceeding pending in any inferior tribunal which could be restrained by a writ of prohibition issued to that tribunal, & consequently the petition filed against the resps. seeking to prohibit them from continuing the proceedings by making an application under Section 20 of the Industrial Disputes (Appellate Tribunal) Act or otherwise howsoever executing or enforcing or attempting to execute or enforce the award is not maintainable.

5. In my judgment the contention of resps. is well founded. Normally, a writ of prohibition can issue only for the purpose of prohibiting an inferior tribunal from continuing proceedings instituted in that tribunal on proof that the tribunal had either no jurisdiction to entertain the proceedings or to continue the proceedings. As stated in Halsbury's Laws of England, Vol. IX, at p 819 :

'The writ of prohibition is a prerogative writ, issuing out of the High Court of Justice, & directed to an ecclesiastical or inferior temporal Comb which forbids such Court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land.' That para. clearly indicates that a writ of prohibition can issue for the purpose of forbidding a Court, which is inferior to the High Court, from continuing proceedings which are pending in that Court, if the Court has no jurisdiction to entertain or deal with the proceedings.

6. A writ of prohibition & a writ of certiorari are two complementary writs. A writ of certiorari is issued requiring that the record of the proceedings in some cause or matter pending before an inferior Court be transmitted to the superior Court to be dealt with, for rectifying an order or proceeding. That writ is issued where an order has been passed by a tribunal having judicial or quasi-judicial authority but the tribunal had no jurisdiction to pass the order or to hold the proceedingcomplained of. A writ of prohibition is issued for preventing a tribunal from continuing a proceed-ing pending in it on the ground that it has no jurisdiction to hold the proceedings. A writ of certiorari is remedial, whereas a writ of prohibition is preventive. The form of the writ of prohibition as given in the 'Practice on the Grown Side' by Short & Mellor at p. 604, item 39, is as follows:

'Victoria, by the Grace of God, etc. to [the keepers of Our peace & Our justices assigned to hear & determine diverse crimes, trespasses & other offences committed within our county of :, ....

Whereas we have been given to understand that you the said (justices Lave entered an appeal by A. B. against, etc.) & that the said--has no jurisdiction to hear & determine the said by reason that (here state facts showing want of jurisdiction).

We, therefore, hereby prohibit you from further proceeding in the said.....'

The form in which the writ of prohibition is issued is, therefore, a form directed against a tribunal & not against a private party. As pointed out by Short & Mellor in their book 'Practice on the Crown Side' at p. 70:

'The writ of prohibition is a judicial writ, issuing out of a Court of superior jurisdiction & directed to an inferior Court for the purpose of preventing the inferior Court from usurping a jurisdiction with which it is not legally vested.... It must not be confounded with the remedy by injunction issued out of the Courts of Chancery or Common Law against proceedings at law. Both have the same object, but the difference between them is, that an injunction is directed against the parties litigant, while a prohibition is directed to the Court itself. An injunction recognises the jurisdiction of the Court in which the proceedings are pending, but a prohibition strikes at once at its jurisdiction.'

7. Mr. Beynon on behalf of the petitioner has contended that, notwithstanding the statement at p. 819 in Halsbury's Laws of England, Vol. IX, it is open to a Court to issue a writ of prohibition even after the termination of the proceedings in a tribunal & when there are no proceedings pending. He refers to a passage in Halsbury's Laws of England, Vol. IX, at p. 826, para. 1402, which is as follows:

'Where the objection to the jurisdiction of an inferior Court appears on the face of the proceedings, prohibition lies at any time, even after judgment or sentence, in spite of the laches or acquiescence of the applicant; this rule applies, even if the application is merely to avoid payment of the costs of the applicant's own vexatious suit.'

Relying upon the passage Mr. Beynon contends that even if the proceedings have terminated by a judgment or sentence pronounced, the High Court has authority to issue a writ of prohibition when there is an apprehension that the judgment or the sentence will be enforced by further proceedings, & the pendency of proceedings in an inferior tribunal is not a prerequisite to the issue of a writ of prohibition, & the writ need not be addressed to a Court. If, however, in its essential quality, a writ of prohibition is a direction addressed to a tribunal & operates to stay or to compel the tribunal to forbear from continuing the proceeding instituted therein, then, in my judgment, there is nothing in the paragraph, which has been referred to by Mr. Beynon, whichsuggests that a writ of prohibition can issue against a private party or that it can issue when there are no proceedings pending in an interior tribunal. The para, referred to only means that proceedings for enforcement of a judgment or sentence will be stayed, if it appears that the order or the sentence passed by a tribunal, which is in the process of enforcement was passed without jurisdiction. What would be stayed would be the proceeding for enforcement. Mr. Beynon has also referred me to three reported decisions in support of his submission. He referred to the case reported in Rex v. North : Oakey, Ex parte 1927 1 K. B. 491. That was a case in which the head-note runs thus:

'A faculty was granted to a vicar and churchwardens to restore a screen in a church. In the course of the work of restoration damage not authorised by the faculty was done to a fresco. A parishioner interested in the fresco petitioned the Consistory Court for a faculty to repair the damage. The petition alleged that the damage was done by the vicar's order, but did not ask that he should pay the costs of reparation. A general citation was issued citing all the parishioners & inhabitants to show cause why a faculty should not be granted to allow of the repair, but no special citation was issued to the vicar. The vicar knew of the petition, but did not appear. In his absence the Judge of the Consistory Court on 24-7-1925, granted the faculty asked, & ordered him to pay the expense of reparation & the costs of the petition. On 11-2-1826, a monition was issued ordering him to pay the said sums under threat of sequestration. On March 9, the vicar applied for prohibition: -- Held, (1), that as the order of July 24 & the monition were made without giving the vicar an opportunity of being heard in his defence they were made without jurisdiction & prohibition ought to issue.'

Now that case, in my judgment, is no authority for the proposition that a writ of prohibition can issue against a private party as distinguished from a Court, or that for the purpose of issuing a writ of prohibition there need not be proceedings pending in any inferior Court As a matter of fact in that case the order dated 11 2-1926, was an order directing the vicar to pay the sums awarded against him & threatened sequestration on default in payment. That clearly indicates that there was a proceeding pending in an inferior Court or tribunal which was sought to be prohibited from being continued. At p. 493 of the report in the statement of facts it is stated :

'On 11-2-1926, a monition was issued from the Consistory Court, which after reciting the petition, the citation, the hearing before the Court & the order made by it, & further stating that the petitioner's costs had been taxed & allowed at 42 13s. 6d. & that the expenses of the work of restoration authorised by the faculty amounted to 74 14s. 6d., ordered the Rev. J. P. Oakey to pay the said two sums within fourteen days, or in default to show cause why the profits of his benefice should not be sequestrated.'

A 'monition' is a term of ecclesiastical law & means a summons or notice to appear. It takes the place of a notice under the civil law to show cause why execution should not issue for compliance or satisfaction of the order already made. If there is a proceeding already pending, then on the ground that an order has been made withoutjurisdiction, the High Court may in a proper case issue a writ of prohibition staying that proceeding.

8. Mr. Beynon has referred to a decision reported in In re London Scottish Permanent Buildiny Society (1893) 63 L. J. Q. B. 112. In that case the Judge of the City of London Court had, acting under the Building Societies Act, 1874, passed an order varying or discharging a previous order of his own. A writ of prohibition was issued to the Judge prohibiting him from enforcing the order passed on such variation. It is clear from the judgment that the motion was for a writ of prohibition to go to the Judge of the City of London Court in respect of a matter brought before him under the Building Societies Act of 1874. That again indicates that proceedings in pursuance of the order were already pending before the City of London Court, & it was in respect of those proceedings that a writ of prohibition was sought to be obtained.

9. Mr. Beynon has also relied upon the observations in The Mayor etc. of London v. Cox 1867 A. C. 239 :

'The application may be made either against the party, or the Judge to be prohibited, or both, though in old times, when the proceeding to be prohibited was an appeal to Rome, it was necessarily against the party only. In modern practice the application in the first instance is made in form against the party and the Court ; but it is usually the party & very rarely the Court, that shews cause against the rule, and pleads to the declaration .... And the precedents shew that there is no difference between the proceedings against a party & those against the Court, except in the expressions 'segui placitum', ''tra-here in placitum,' 'multlpliciter fatigara.' & the like, for the one, & 'tenere placitum', for the other. See the numerous writs in the Register, folios 33 to 45 & 98A, and Braston, follos 402 to 413, from which it appears that unless the pltf, below had the right of prosecuting the suit in the Court below, prohibition goes to the party& the Court, either or both of them.'

Now, the passage relied upon by Mr. Beynon sets out the procedure to be followed in filing petitions for writ of prohibition, but it is not an authority for the proposition that a writ of prohibition will lie where there is no proceeding pending in an inferior Court. In The Mayor etc. of London v. Cox, there was actually a garnishee proceeding pending before the inferior Court & it was in respect of that proceeding that the writ of prohibition was sought. None of the cases cited by Mr Beynon support the proposition which he has propounded before me.

10. Again there is a decision of the House of Lords reported in Cliford & O'sullivan 1921 A. C. 570 where their Lordships refused to issue a writ of prohibition against the Military Court & the Commander-in-Chief & the General Officer Commanding prohibiting them from proceeding further with the trial of certain persons or from carrying into execution any judgment against them on the ground that the Court was illegal & had no jurisdiction to deal with the matter because, firstly, the officers who contituted theMilitary Court did not claim to be a judicial tribunal in any legal sense, and, secondly, that they had become functus officio. The speech of Lord Sumner is reported at p. 591 as follows :

''My Lords, I think there is another difficulty in the appellants' way, which ought to be mentioned. So far as the evidence shows the officers who constituted the military Court ate now completely 'functus of ficio' & as a tribunal, are definitely dispersed, so Far as this case is concerned. There is no material to support the surmise that they might be called upon to reconsider either their decision or their sentence. True, judgment, though given, is not yet executed, but the execution is not in the hands of these officers or of any one acting under their directions or authority. It is the general officer commanding who now deaides whether the sentence of the Court or some other sentence should be carried out, if at all, ft this by virtue of his own military authority, under which he appointed the Court & might have superseded it. He is not a Court nor does he pretend to be one.'

11. In my judgment the provisions of the Industrial Disputes (Appellate Tribunal) Act appear to indicate a similar situation. The authority of the Tribunal to investigate into a dispute arises out of its constitution by the appropriate Govt. under Section 7 and by the reference of the dispute under Section 10, Industrial Disputes Act. When so constituted the Tribunal makes its award upon the dispute referred to it under the provisions of the Industrial Disputes Act, 1947. After the award is approved & published, it becomes enforceable & it is then not for the Tribunal to enforce that award, but the Govt. enforces the award on an application made by the parties interested therein. The enforcement of the award is by virtue, not of the authority of the Tribunal, but of the Govt. Once the Tribunal makes an award, it becomes, for the purpose of enforcement of the award, functus officio & there is then no proceeding whatever pending before the Industrial Tribunal, which could be prohibited.

12. I hold therefore that the petition for the issue of a writ of prohibition against the respondents seeking to restrain them from enforcing the award of the Industrial Tribunal either by an application under Section 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950, or otherwise is entirely misconceived. The prohibition is not sought against the Tribunal that made the award, but is sought against private parties & the prohibition is not in respect of any proceeding pending in any inferior tribunal, but the prohibition sought is a personal prohibition against individuals. Such a prayer would be entirely foreign to the nature & purpose of a writ of prohibition as recognised heretofore.

13. The rule is discharged with costs in favour of resp. 2. The interim injunction is dissolved.


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