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Ahmedabad Cotton Mfg. Co. Ltd. Vs. Textile Labour Assn. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai
Decided On
Case Number O.C.J. Miscellaneous No. 98 of 1945
Judge
Reported inAIR1946Bom309; (1946)48BOMLR76
AppellantAhmedabad Cotton Mfg. Co. Ltd.
RespondentTextile Labour Assn.
Excerpt:
.....thereby is outside the jurisdiction of the 'court, even though the tribunal against whom the .writ of certiorari is sought to be issued has its office within the jurisdiction of the court.;ryots of garabandho v. zamindar of parlakimedi (1943) l.r. 70 i.a. 129: s.c. 47 bom. l.r. 525, followed. - - the chief conciliator failed to bring about a settlement, concluded the proceedings on february 24, 1945, and made his report to the government of bombay, whereupon the government of bombay on april 9, 1945, issued a notification under clause (2) of section 49a of the bombay industrial disputes act referring the industrial dispute which had thus arisen between the ahmedabad millowners' association on the one hand and the opponents on the other to the arbitration of the industrial court..........and equitable rent in respect of the lands in the said villages. the ryots then appealed to the madras high court for a writ of certiorai to quash the order of the collective board of revenue on february 9, 1937, complaining that the rents had been raised above the limit of two annas in the rupee, or twelve and a half per cent., which was the maximum increase permitted under section 30(1) of the act. the madras high court held that if the section of the statute applied so that no increase beyond twelve and a half per cent, could lawfully be made, the appellants would be entitled to a writ of certiorari addressed to the board of revenue to correct the illegality, but that in the circumstances the board of revenue had power to enhance by thirty-seven and a half per cent. the petition.....
Judgment:

Bhagwati, J.

1. This is a petition filed by the Ahmedabad Cotton ., for itself and on behalf of the other local member Mills of the Ahmedabad Millowners' Association, with leave under Order I, Rule 8, of the Civil Procedure Code, 1908, .against the respondents who are the Textile Labour Association having their office at Mirzapur Road, Ahmedabad, being an association registered as a Trade Union under the Trade Unions Act. Both the petitioners and the opponents have their registered offices outside the jurisdiction of this Court. The Ahmedabad Mill-owners' Association has its registered office at Ahmedabad and all the members of that Association who are represented by the petitioners have their registered offices also at Ahmedabad. It appears that there was a dispute between the opponents and the Ahmedabad Millowners' Association as regards the bonus equivalent to four months' wages of the employees which was claimed by the opponents as payable by the various members of the Ahmedabad Millowners' Association. No agreement could be reached land a notice in form M provided in the Bombay Industrial Disputes Act (Bom. XXV of 1938) was forwarded by the opponents to the Conciliator on February 1, 1945, and there was a notice of change given under the Act. The Chief Conciliator failed to bring about a settlement, concluded the proceedings on February 24, 1945, and made his report to the Government of Bombay, whereupon the Government of Bombay on April 9, 1945, issued a notification under Clause (2) of Section 49A of the Bombay Industrial Disputes Act referring the industrial dispute which had thus arisen between the Ahmedabad Millowners' Association on the one hand and the opponents on the other to the arbitration of the Industrial Court constituted under Section 24 of the Bombay Industrial f Disputes Act.

2. The petitioners contended that the bonus as demanded by the opponents was not and could not legitimately be the subject-matter of demand under the said Act or of any conciliation, reference, recommendation or award, that the granting of the bonus whether calculated on the salary of the workers or on the profits of the employers or in any manner or form whatever was always a matter of the pure volition and free will of the employer and either in law or in principle it was not competent to the employee to claim a bonus as a matter of right, except only when the payment of any bonus was by way of extra remuneration payable under an express contract, that the claim to a bonus was not an industrial matter within the meaning of the said Act nor did the employer's refusal to pay it constitute or give rise to an industrial dispute, and therefore it was not competent to 'the opponents to give a notice under the said Act nor for the conciliator to act thereupon nor for the Government of Bombay to make any order under Clause (2) of Section 49A of the Act. They therefore contended that the Industrial Court had no jurisdiction to entertain the said demand or any matter relating thereto or to act under the said order of reference. They, therefore, prayed for an issue of a writ of certiorari calling upon the Industrial Court to send to this Court the record and papers in the above matter and to quash the said proceedings and for further and other reliefs.

3. On this petition filed by the petitioners, they applied for an interim stay of proceedings before the Industrial Court and made an application to me in the vacation on June 2, 1945. On that application I made an order that the question whether interim stay of proceedings before the Industrial Court should be granted or not should be argued before me on June 20, 1945, and I directed that notices in that behalf should issue to the opponents, I, however, in the meanwhile stayed all proceedings before the Industrial Court pending the hearing and final disposal of that application before me on June 20, 1945. The matter accordingly came on for hearing- before me on June 20, 1945, when Sir Jamshedji Kanga appeared for the Province of Bombay and applied that hie clients should be added as party-respondents to 'the petition. The Advocate General for the petitioners opposed the application contending that the Province of Bombay had no lotus standi on this petition. On that day I made ah order that the rule and,' portion should be served on the Province of Bombay by the petitioners, but without prejudice to the contention of the petitioners which they would be at liberty to advance at the hearing of the rule that the Province of Bombay nad no locus Standi to be heard on this rule. I reserved the costs of that 'application which had been made by Sir Jamshedji Kanga. I also directed that the rule should be placed on my board for hearing and final disposal on July 16, 1945, and extended the interim stay which I had granted till the hearing and final disposal of the rule. The petitioners undertook on that occasion that in the event of the decision of the Court going against them they would file their written statement in the Industrial Court within forty-eight hours of the judgment delivered in the matter.

4. The rule accordingly came on for hearing before me on July 16, 1945, when Sir Jamshedji Kanga appeared not only for the Province of Bombay but also for the Industrial Court. My attention was drawn to the fact that on the earlier occasion I had only ordered this rule to be served on the Province of Bombay and at no time up to that day had any mention been made of the Industrial Court being in any manner whatever concerned with this rule except that the prayer (a) of the petition-mentioned that a writ of certiorari should issue against the Industrial Court calling: upon it to send to this Court the record and papers in the matter. Sir Jamshedji Kanga, however, contended that the Industrial Court was entitled to be heard though,, if the Court thought that the attitude taken by it was not proper, the Court had jurisdiction to mulct it in costs. He referred to Order LIX, Rule 5, Sub-rule (I) and (2) and Order LIX, Rule 7, of the Rules of the Supreme Court and also to certain passages from Halsbury's Laws of England, Hailsham Edition, Vol. IX, particularly to a passage at p. 786 in para. 1330, that notice must be given by the 'order nisi to every person who, by the affidavits on which the order is moved, appears to be interested in or likely to be affected by the proceedings, and to any person who, in the opinion of the Court or Judge, ought to have such notice. Though this passage has reference to a writ of mandamus, he submitted that the same principle was applicable to the case of writs of certiorari and prohibition also and submitted, that his clients, the Industrial Court, were thus entitled to be heard. I understood that there was no serious opposition to the Industrial Court being heard so far as the petitioners were concerned and I therefore allowed Sir Jamshedji Kanga to appear for the Industrial Court as well as the Province of Bombay.

5. Apart from the contentions which had been raised by the opponents on the affidavits as filed they had also addressed on July 14, 1945, a letter through their attorneys Messrs. Dhra & Co. to the attorneys of the petitioners in which they stated that in addition to the points taken: in their affidavit they would further contend that this Court had no jurisdiction to grant the relief prayed for in the petition inasmuch as the parties to the petition belonged to Ahmedabad and were outside the jurisdiction of this Court. They also stated that they would further contend that the petition was not maintainable and that this Court had no jurisdiction to grant the relief prayed for. This letter dated July 14, 1945, addressed by the attorneys of the opponents to the attorneys of the petitioners has been marked as exhibit No. 1 in these proceedings. Mr. D. B. Desai who appeared for the respondents therefore argued the preliminary point whether this Court Had jurisdiction to issue the writ as the parties were residents outside the town and island of Bombay. He also raised other preliminary points which, however, I did not consider it necessary to be argued in view of my opinion that if Mr. D. B. Desai made good this preliminary point of his, in; was sufficient to dispose of the petition.

6. It is common ground that the petitioners as well as the opponents are parties from Ahmedabad and therefore outside the jurisdiction of this Court. The jurisdiction of this Court to issue the writ of certiarari has been invoked by the petitioners therefore relying upon the fact that the Industrial Court against whom the writ of certiorari is sought to be issued in these proceedings is situate within the jurisdiction of this Court, having its office in Bombay and having also entered upon the reference in question in Bombay by reason of the letter dated April 12, 1945, which they addressed to the Secretary, Millowners' Association, Ahmedabad, as also to the opponents in that behalf. By, his letter dated April 12, 1945, addressed to the Secretary, Mill-owners' Association, Ahmedabad, the Secretary, Industrial Court, Bombay, after referring to the Government Notification, Political and Services Department, No. 6481(34, dated April 9, 1945, referring the industrial dispute between the Textile Labour Association and the Millowners' Association, Ahmedabad, in respect of bonus for the year 1944, to the arbitration of the Court, informed the Millowners' Association, Ahmedabad, that the opponents had been directed to file their written statement in connection with the said dispute on or before April 28, 1945, a copy of which would be handed over to them simultaneously by that Association. The Secretary, Industrial Court, therefore required the Secretary, Millowners' Association, Ahmedabad, to file in the office of the Industrial Court, Bombay, on or before May 15, 1945, six copies of their written statement in reply to the statement of the opponents and required that one copy of the reply should be handed over simultaneously to the opponents and the office should be informed that it had been so done. It also called upon the Secretary, Millowners' Association, to comply with certain other requisitions which were consequential upon the directions given by the Industrial Court to the Millowners' Association by that letter. This letter is exhibit A in these proceedings.

7. In support of his preliminary point, Mr. D. B. Desai relied on a decision of their Lordships of the Privy Council in Ryots of Garrabandho v. Zemindar of Parlakimedi . The facts of that case were that the appellants were ryots of three villages included, in the Parlakimedi estate in the district of Ganjam in the Northern Circara. The respondents were the Zemindar of Parlakimedi and the Board of Revenue at Madras. The Zemindar had in October, 1925, applied under ch. XI of the Madras Estates Land Act for the settlement of rent in respect of those villages and had by a supplemental application in March 1926 applied for settlement of a ' fair and equitable rent' under Section 168(1) of the Act. In November, 1927, the Government of Madras directed in the rupee, or thirty-seven and a half per cent, as the fair and equitable rent in respect of lands in the said villages. The special revenue officer investigated the whole position and made an order in the year 1935 doubling the previous rents. The ryots appealed to the Board of Revenue and a member of that Board, sitting alone, reversed the decipion of the revenue officer and allowed an increase of rent of only twelve and a half per cent. The Zemindar appealed by way of revision to the Collective Board; of Revenue from the decision of the single member of the Board. On October 9, 1936, the Collective Board decided by a majority of two members to one that the proviso (b) of Section 30 (1) by which the single member of the Board felt himself bound did not apply to the case, but fixed as the appropriate increase an enhancement of six annas in the rupee, or thirty-seven and a half per cent, as the fair and equitable rent in respect of the lands in the said villages. The ryots then appealed to the Madras High Court for a writ of certiorai to quash the order of the Collective Board of Revenue on February 9, 1937, complaining that the rents had been raised above the limit of two annas in the rupee, or twelve and a half per cent., which was the maximum increase permitted under Section 30(1) of the Act. The Madras High Court held that if the section of the statute applied so that no increase beyond twelve and a half per cent, could lawfully be made, the appellants would be entitled to a writ of certiorari addressed to the Board of Revenue to correct the illegality, but that in the circumstances the Board of Revenue had power to enhance by thirty-seven and a half per cent. The petition for the writ was therefore dismissed by the Madras High Court. Against this decision of the Madras High Court the ryots appealed to the Privy Council.

8. Their Lordships of the Privy Council had before them counsel who had been instructed by the Secretary of State for India on behalf of the Governor General in Council, to argue the question on behalf of the Governor General in Council as amicus curie, and the question whether the High Court had jurisdiction to issue a writ of certiorari under the circumstances of that case was canvassed at considerable length. It was contended on behalf of the Zemiindars that both the parties to the proceedings being outside jurisdiction, there was no jurisdiction in the Madras High Court to issue a writ of certiorari at all. It was common ground in that decision also that the Board of Revenue had always had its offices in the Presidency-town and that, the Collective Board which had made the order complained of had issued the order in the Presidency-town itself. On the other hand, the parties were not subject to the original jurisdiction of the High Court and the estate of Parlakimedi lay in the North of the Province. It was on these facts which were not at all in dispute between the parties, viz. the parties being outside the jurisdiction of the Court and the Board of Revenue which made the order' being within the jurisdiction of the Court that the question of the jurisdiction of the Madras High Court to issue the writ of certiorari was argued before their Lordships of the Privy Council.

9. Their Lordships approached the question of the jurisdiction of the Madras High Court to issue the writ of certiorari in the following manner. They observed (p. 142):

While the sole purpose of the present appeal is to obtain a direction that a writ of certiorari should issue out of the Madras High Court to the Board of Revenue in respect of proceedings to settle the rents payable for certain lands in Ganjam, it is necessary to consider the question of jurisdiction from two separate standpoints. This necessity arises out of the circumstance that the Board of Revenue, which were first instituted in Madras in 1786, is located, like most of the organs of provincial government, within the town of Madras. . The jurisdiction may therefore be claimed (a) independently of the local civil jurisdiction which the High Court exercises over the Presidency town, or (b) solely by reason thereof, as an' incident of the location of the Board of Revenue within the town.

In regard to the first question their Lordships went into a detailed examination of the various statutes and notifications which invested the Madras High Court with jurisdiction in respect of the various matters including the power to issue a writ of certiorari arid which were ultimately crystallized in the Charter of 1800 which was the charter by which the Madras High Court was constituted. Clause 8 of that Charter (which corresponds exactly with Clause 5 of the Charter of our High Court) invested the Madras High Court with jurisdiction similar to the jurisdiction of the King's Bench in England, and it was contended that by reason of the terms of that clause the Madras High Court got the power to issue a writ of certiorari to quash judicial proceedings even, in cases where those proceedings were entertained by persons in the mofussil. It was contended, on the other hand, that the Supreme Court itself did not possess the power to issue the writ on any one beyond the limits of Madras unless he was a British subject, that there had been apparently no case in which the Madras High Court 'had issued the writ of certiorari on an officer outside its own jurisdiction, that the Madlras High Court was not invested by Clause 8 of the Charter with any powers which the Supreme Court itself did not possess and therefore had no jurisdiction to issue a writ of certiorari over Courts which were Situate outside the limits of the Presidency town, nor to issue prerogative writs to persons outside the limits of the Presidency town which were not subject to its civil or criminal jurisdiction. Their 'Lordships traced the history of the powers granted to the Supreme Court and thereafter to the Madras High Court by. Clause 8 of the Charter in great detail and ultimately upheld the view that the Madras High Court; had no power to issue any writ of certiorari against persons who were outside the jurisdiction and against Courts which were situate outside the jurisdiction.

10. After dealing with this aspect of the case their Lordships proceeded to consider whether solely by reason of the fact that the Board of Revenue had their offices within the jurisdiction of the Court and that the order had been issued by the Board of Revenue also within the jurisdiction of the Court, the Madras High Court had jurisdiction to issue the Writ of certiorari against 'the Board of Revenue. Their Lordships proceeded to observe that even though the Madras High Court had jurisdiction to issue a writ of certiorari in those cases where the parties would be within its jurisdiction and the Court also was within its jurisdiction, they were not prepared where the parties were admittedly outside the jurisdiction merely by reason of the incident of the Board of Revenue having their offices within the jurisdiction to hold that the Madras High Court had jurisdiction to issue the writ of certiorari against the Board of Revenue. They treated the point of jurisdiction as a point of substance, I understand their remarks in this behalf to mean that whether the High Court has jurisdiction to issue a writ of certiorari or not should be determined not merely, by the fact of the location of the particular tribunal within the jurisdiction of the Court. It was mere incident or what one may be permitted to describe an accident that the particular tribunal was located within the jurisdiction of the High Court, What was really the point of substance, however, was, where are the parties who are affected actually by the writ of certiorari being issued by the High Court residing or carrying on their business. Their Lordships meant that the High Court would have jurisdiction to issue a writ of certiorari even though the tribunal be situate within the jurisdiction only in those cases where the parties who were sought to be affected by the issue of the writ of certiorari, viz. the persons in the position of the opponents herein, were also residing' in or were amenable to the jurisdiction of the High Court.

11. The Advocate General strenuously contended that the real ratio of the decision of their Lordships was what was contained in their observations at pp. 164 to 165 of this decision. He laid particular stress on. the last two sentences of the paragraph at page 165 where their Lordships observed:

Their Lordships think that the question of jurisdiction must be regarded as one of substance, and that it would not have been within the competence of the Supreme Court to claim jurisdiction over' such a matter as the present by issuing certiorari to the Board of Revenue on the' strength of its location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of the settlement of rents for ryeti holdings in Gan-jam between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance.

He contended that the real determinative factor which weighed with their Lordships was the fact the initial decision which happened to give the power to the Board of Revenue by way of revision was the decision of a revenue officer who dealt with the matter at first instance at Ganjam and the High Court would in no event have jurisdiction over that officer to issue a writ of certiorari calling for the records of the proceedings before him and quashing the same in any possible contingency. This contention of the Advocate General, however, ignores the whole of the consideration which their Lordships devoted to the first point, viz. whether independently of such location of the tribunal within the jurisdiction of the High Court the High Court had by virtue of Clause 8 of the Charter jurisdiction to issue a writ of certiorari of the nature claimed. If it were open to come to a conclusion that if the tribunal which primarily took upon itself the burden of deciding the disputes between the parties was situate within the jurisdiction of the Court, the High Court would have jurisdiction to issue a writ of certiorari even though the result of that would be to affect the rights of persons residing outside the jurisdiction of the Court, the facts in the case before their Lordships admittedly were, that the order which was complained against was in fact issued within the jurisdiction of the Court in Madras and the Board of Revenue which issued that order had also its offices within the jurisdiction of the High Court of Madras. In that event it would have been absolutely irrelevant to entertain a discussion on the first point which was elaborately gone into by their Lordships whether the High Court had jurisdiction to issue a writ of certiorari when the parties before it were residing outside the jurisdiction of the Court. In this view of mine, I am also supported by the observations of their Lordships at p. 156 of this decision. After discussing the scope of the powers which were invested in the Madras High Court by virtue of Clause 8 of the Charter their Lordships proceed to observe as under:

The concluding part of Clause 8 makes no reference to prerogative writs, but is a broad and summary reference to the) whole of a King's Bench judge's jurisdiction and authority. It cannot be construed as restricted to such powers only as were peculiar to the King's Bench; and were not shared by the other superior Courts of common law. Is it really the effect of these words to subject the Indian inhabitants throughout the province., and all matters of dispute between themselves, to the same jurisdiction as the King's Bench would apply to the inhabitants of an English county? Do the words put the Indian living at Ganjam equally under this jurisdiction with the Indian inhabitant of the Presidency town, because they say that the judges within and without the town are to have the jurisdiction and authority which a Justice of the King's Bench has in England ?

These observations show that the jurisdiction which the High Courts exercise In the matter of the issue of the writs of certiorari, prohibition, mandamus and the like,, which was invested in the Supreme Court and which was invested in the High Courts by reason of the appropriate provisions in the respective clauses of the Charters which constituted those High Courts was a jurisdiction over the inhabitants of the Presidency towns and also persons who were amenable to that jurisdiction, howsoever that jurisdiction might be exercised, either by the issue of the writs of certiorari, prohibition, mandamus or any other, by adopting appropriate proceedings and by issuing those writs though affecting the rights of the individuate concerned by directing those writs-to particular officers, tribunals or other parties to whom they were addressed. In substance, therefore, it was a jurisdiction exercised against the individuals and the observations of their Lordships appearing at p. 165 of the report where they say that the question of jurisdiction must be regarded as one of substance have therefore-got to be understood in that light.

12. This ratio of their Lordships' decision is equally applicable to our High Court which has also by virtue of Clause 5 of its Charter invested in it jurisdiction similar to the jurisdiction of the King's Bench in England, as was done in the case of the Madras High Court by virtue of Clause 8 of it is Charter. I have, therefore, come to the conclusion that the observations of their Lordships which are binding on me lay down that even though the tribunal against whom the writ of certiorari is sought to-be issued has its office within the jurisdiction of this Court, this Court has no jurisdiction to issue the writ of certiorari because both the parities to these proceedings are outside the jurisdiction of this Court, and particularly because the parties who are affected thereby, viz.,, the; opponents, the Textile Labour Association of Ahmedabad, are outside the jurisdiction of this Court,

13. In the result the preliminary point which has been urged by Mr. D. B, Desai succeeds and I dismiss the petition.

14. I have heard the parties on the question of costs. As regards the opponents, i.e. the Textile Labour Association, Ahmedabad, I do not see any reason to deprive them of their costs of this petition. This case of Ryots of Garabandho v. Zemindar of Parlakimedi which I have discussed was also considered by Coyajee J. in Lady Dinbai Petit v. Noronha : AIR1945Bom419 where the learned Judge observed as follows (p. 513):-

The reason for referring to this case is that their Lordships distinctly indicated that the respondent being outside the original jurisdiction no such writ could be issued. This-case has a bearing on the present case for this reason, that the writ could not be issued as the appellant and respondent No. 2 were out of jurisdiction although the Board itself was within jurisdiction. These remarks show how the writ would affect the other respondents who were out of jurisdiction and therefore the Court will not issue a writ of this nature.

In view of this pronouncement of my brother Coyajee, I do not see why the petitioners should have persisted in their contention which was urged before me and I therefore award the opponents their costs of this petition. Those costs would be taxed on a long cause scale with one counsel. As regards the costs of the Government of Bombay and the Industrial Court, I allowed them to appear before me, both of them on the distinct understanding that they would be responsible for the costs in the event of their failing. The Government of Bombay were further allowed to appear without prejudice to the rights and contentions of the petitioners that they had no locus standi in these proceedings. I heard Sir Jamshedji Kanga on behalf of both these parties because I did not want any arguments which they would have thought fit to urge on their behalf in addition to those arguments which were advanced on behalf of the opponents to be left out of consideration by the Court. Their appearance, however, was not, in my opinion, absolutely necessary, and having regard to all the circumstances of the case I do order that they shall bear and pay their own costs of this petition.


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