Skip to content


Narayan Deju Puthrani Vs. Labour Appellate Tribunal of India at Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCivil Appln. No. 1852 of 1956
Judge
Reported inAIR1957Bom142; (1957)59BOMLR261; ILR1957Bom412; (1957)IILLJ245Bom
ActsConstitution of India - Articles 226 and 227; Code of Civil Procedure (CPC), 1908 - Order 17, Rule 1 - Order 41, Rules 17, 19 and 23; Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 - Sections 33 and 33(2); Indian Trade Unions Act, 1926; Industrial Disputes (Appellate Tribunal) Act, 1950 - Sections 4 and 7; Industrial Disputes (Appellate Tribunal) (Amendment) Act, 1953; Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1955 - Sections 30; Industrial Disputes Act, 1947
AppellantNarayan Deju Puthrani
RespondentLabour Appellate Tribunal of India at Bombay and anr.
Appellant AdvocateK.T. Sule and ;Madan Phadnis, Advs.
Respondent AdvocateN.B. Vakil, Solicitor to Govt. of India for ;Attorney General for India and ;H.M. Seervai, Adv. i/b., Crawford Bayley and Co. Attorneys
Excerpt:
.....such order to direct tribunal to re-hear appeal--whether such appeal can be heard by tribunal as pending appeal under section 33(2)(a)--whether expression 'proceeding pending before the appellate tribunal' in section 33(2)(a) mean proceeding not lawfully disposed of by tribunal--court by order refusing to grant adjournment--whether high court under article 227 can interfere with such order.;a registered trade union preferred an appeal against an award made by the industrial tribunal to the labour appellate tribunal under the industrial disputes (appellate tribunal) act, 1950. on april 27, 1956, a notice was sent by the office of the labour appellate tribunal to the union informing them that the appeal was ready for hearing and would be set down for hearing at short notice. on may 29,..........of industrial or labour tribunals and an appellate tribunal was constituted under section 4 for hearing appeals against the awards or decisions of industrial tribunals in accordance with the provisions of that act and, by section 7 jurisdiction was conferred upon the appellate tribunal to deal with certain questions in appeals which jay thereto from awards or decisions of industrial tribunals. by section 30 of the industrial disputes (amendment and miscellaneous provisions) act, 1955, the industrial (appellate tribunal) act,' 1950, has now been repealed and with the repeal of that act, authority of the central government to constitute appellate tribunals has also lapsed and all the tribunals which have been constituted under the authority given to the general government must be deemed.....
Judgment:

Shah, J.

1. The petitioner is an employee of M/s. Forbes Forbos Campbell and Co. Ltd., Bombay, whom we will hereafter refer to as the Company. The petitioner is the Joint Secretary of the 'Forbes, Forbes Campbell and Co. Ltd., and Allied Employees' Union' which is a Trade Union registered under the Indian, Trade Unions Act, 1926. The Industrial Tribunal of Bombay, in reference No. 89 of 1955 made an award which concerned the Union. 'Against the award made by the Industrial Tribunal, an appeal was preferred to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1950. It is claimed that the appeal involved a question relating to a dispute about bonus in which 200 employees of the Company were interested, After the appeal was ready for hearing a notice was sent on 27th April 1936 by the Office of the Labour Appellate Tribunal to the Union informing them that the appeal was ready for hearing and will be set down for hearing at short notice. Another notice dated 29th May 1956 was sent to the Union intimating that the date fixed for hearing of the appeal before the Labour Appellate Tribunal was 1st June 1956. This notice was received by the Union in the afternoon of 30th May 1956. Mr. Gavaskar, the Joint Secretary of the Union appeared before the Labour Appellate Tribunal on the date fixed for hearing and informed the Tribunal that the Secretary of the Union who had prepared the case and was fully conversant with the facts of the case was indisposed and the Counsel who had appeared before the Industrial Tribunal was ill and it was not possible to secure the services of another Counsel and that the case could not be argued at such short notice, and requested the Tribunal to grant an adjournment to enable the Union to submit an effective argument in support of the appeal. The Tribunal rejected the application. They observed that an application for adjournment made on the ground that the Counsel who was conversant with the case was ill and was recovering from illness and was, therefore, unable to attend, could not be granted even if the Counsel appearing on behalf of the Company had no objection to a postponement of the hearing. The Appellate Tribunal accordingly ordered that the case must proceed. It appears, thereafter, they called upon the Joint Secretary to make his submissions. The Joint Secretary, stated that he had 'nothing to submit' in support of the appeal. Thereupon the Tribunal without considering the merits disposed of the appeal. On 4th June 1956, the Joint Secretary applied for an order for rehearing of the appeal and for granting an opportunity to the Union to place their case before the Tribunal. That application was also rejected by the Tribunal. They observed that notice had been given that the appeal will be posted for hearing at short notice and if the appellants did not take steps to prosecute the appeal and the appeal was dismissed, an application for rehearing could not be sustained. The Tribunal observed that the Joint Secretary of the Union was present in the Court and they were 'quite prepared to assist him if he would have gone on with the appeal but he stated that he had nothing to submit'. Against the order of dismissal of the appeal and also against the order refusing to restore or rehear the appeal, an application has been filed in this Court under Article 227 of the Constitution,

2. It is urged by Mr. Sule in support of the application that the notice of 27th April 1956 was vague and did not intimate the probable date on which the appeal may be posted for hearing, and as the intimation given about the date of hearing in a complicated case, was inadequate, the Appellate Tribunal should have adjourned the hearing of the appeal in order to enable the appellants to appear by a lawyer duly instructed. Mr. Sule also argued that the Tribunal should have proceeded to decide the appeal on the merits instead of disposing of the appeal by the cryptic order 'dismissed'. Undoubtedly, the question whether adjournment in a case before a Court should be granted to enable the party to make an effective representation is essentially one of discretion of the Court before which the proceeding is pending and normally exercising jurisdiction under Article 227 of the Constitution, this Court will not be justified in interfering with an order passed by that Court refusing to grant an adjournment. But on the facts of the present case, certain very singular circumstances do present themselves. As we have already stated, on 27th April 1956 intimation was given that the appeal will be placed for hearing at short notice but that was in our view hardly any intimation which could have enabled the Union to get ready for hearing at less than 48 hours' notice. It is stated at the Bar by Mr. Sule that the appeal raised complicated questions concerning a large number of employees, and that statement is not challenged before us by Counsel for the Company. In a complicated case, in our view, the Tribunal should have given some adequate notice to the parties to enable them to appear and effectively to argue the appeal. It is also to be noted that the Counsel appearing on behalf of the Company raised no obejction against the request made by the Joint Secretary of the Union. As has been observed by the Tribunal Mr. Marr on behalf of the Company, had no objection to the postponement of the hearing. The inadequacy of the notice and the inability of the Union to make an effective representation in support of the appeal was therefore accepted by the Counsel appearing on behalf of the Company. It appears that the Joint Secretary of the Union was not fully conversant with the nature of the dispute and was unable to argue the appeal. There was, therefore, before the Tribunal the Union (which?) was not represented by any person duly instructed to proceed with the hearing of the appeal, and substantially there was no appearance on behalf of the Union. The Tribunal then would have been justified even if they thought that no case for adjournment was made out, in dismissing the appeal or non-prosecution instead of passing an order of dismissal. If the appeal was dismissed for non-prosecution it would have been open to the Union to make an application under Order 41, Rule 19, Civil Procedure Code, for re-admission of the appeal on a plea that for sufficient cause the appellants were prevented from appearing when the appeal was called out for hearing. The Tribunal however did not pass an order disposing of the appeal for non-prosecution and also did not dispose of the appeal on the merits after considering the dispute on such materials as were placed before them in the Memorandum of Appeal and the judgment of the Industrial Tribunal and with such assistance as the Counsel for the Company may have been willing to render.

3. We are, therefore, of the view that there has been substantially no trial of the appeal and the appeal has been disposed of by the Tribunal without a hearing. The Tribunal in disposing of the appeal without considering the merits has passed an order which it was incompetent to pass. We are of the view that interference under Article 227 of the Constitution is called for. Normally in such a case we could have passed an order setting aside the order of the Appellate Tribunal and direct a rehearing. But in view of the provisions of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, we are unable to pass that order. By reason of Section 33 of that Act, the Industrial Disputes (Appellate Tribunal) Act, 1953, is repealed and even if we quash the order passed by the Appellate Tribunal we cannot give any direction, to that Tribunal to proceed with the hearing of the appeal because the Tribunal has ceased to have jurisdiction to hear this dispute. By the Industrial Disputes Appellate Tribunal Act, Act IV of 1950, for the first time a right of appeal was granted from the decisions of Industrial or Labour Tribunals and an Appellate Tribunal was constituted under Section 4 for hearing appeals against the awards or decisions of Industrial Tribunals in accordance with the provisions of that Act and, by Section 7 jurisdiction was conferred upon the Appellate Tribunal to deal with certain questions in appeals which Jay thereto from awards or decisions of Industrial Tribunals. By Section 30 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1955, the Industrial (Appellate Tribunal) Act,' 1950, has now been repealed and with the repeal of that Act, authority of the Central Government to constitute Appellate Tribunals has also lapsed and all the Tribunals which have been constituted under the authority given to the General Government must be deemed except as otherwise expressly provided to have become incompetent as from the date on which the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, came into operation. By a notification issued by the Ministry of Labour, Government of India, dated 28th August 1956, No. SRO/1935, the Central Government has appointed the 1st day of September 1956, as the date on which Section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, shall come into force. Section 33 of that Act having come into force, the Industrial Disputes Appellate Tribunal Act stands repealed and the Appellate Tribunal cannot except to the limited extent permitted by Sub-section (2) of Section 33, exercise powers derived from that Act. Sub-section (2) of Section 33 has provided in so far as it is material:

'Notwithstanding such repeal -

(a) If, immediately before the commencement of this section, there is any appeal or other proceeding pending before the Appellate Tribunal constituted under the said Act, the appeal or other proceeding shall be decided and disposed of by the Appellate Tribunal as If the said Act bad not been repealed by this Act;

(b) ......

(c) ......

save as aforesaid, no appeal or other proceeding shall be entertained by the Appellate Tribunal after the commencement of this section, and every decision or order of the Appellate Tribunal, pronounced or made before or after the commencement of this section, shall be enforced in accordance with the provisions of the said Act.'

4. It may be pertinent to note that Section 30 which constituted Industrial Tribunals under, the Industrial Disputes Act, 1947, has not been repealed. Therefore the Industrial Tribunals continue to function but the Appellate Tribunal to which appeals lay from the awards or adjudications by those Tribunals has been abolished. By virtue of Section 33 only those appeals or other proceedings which are pending before the Appellate Tribunal, can be heard and disposed of by that Tribunal after the repeal of the Industrial Disputes (Appellate Tribunal) Act, 1950. Evidently, the Appellate Tribunal has disposed of the appeal in this case which was pending before it on 1st June 1956, and that Tribunal had no proceeding pending before it 011 1st September 1950, which could be saved by Sub-section (2) of Section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. The Appellate Tribunal not being seized on 1st September 1956, of any appeal or other proceeding arising out of the dispute which has given rise to this application, in our Judgment, that Tribunal will be incompetent to hear and dispose of the appeal even if we were to remand the case to the Tribunal. It cannot be disputed that the Appellate Tribunal does continue to exist with limited powers, but its powers are strictly circumscribed, and can only be exercised in proceedings pending before it on the date on which the Act of 1956 came into operation and in respect of no other matters. The fact that a proceeding was pending in this Court, against the order of the Appellate Tribunal in which jurisdiction under Article 227 of the Constitution is invoked, and in which, if the application, is successful, an order quashing the adjudication by the Appellate Tribunal may be passed, and if the Tribunal continued to exist, an order giving some appropriate direction may have been made,' does not in our view justify the Court in passing an order directing the Tribunal to hear a proceeding which by Section 33, Sub-section (2), it is incompetent to hear. The power of the Appellate Tribunal to decide and dispose of since 1st September 1956, survives only in respect of appeals and proceedings pending before it immediately before the date on which Section 33 comes into operation. In our view, the expression 'appeal or other proceeding pending before the Tribunal' does not include any appeal or proceeding which may become pending if an order of remand is passed by this Court after 1st September 1956.

5. We are unable to accept the contention of Counsel for the Union that the expression 'proceeding pending before the Appellate Tribunal' means, a 'proceeding not lawfully disposed of by the Appellate Tribunal'. When the Appellate Tribunal passes a final order in any proceeding or appeal, it ceases to be pending before the Tribunal. It is by the passing of a final order that a proceeding ceases to be pending before the Tribunal, and it Is not postulated that the final order must be an order legally correct as well. To assume, as the learned Counsel for the Union asks us to assume, that a proceeding remains pending before the Appellate Tribunal till a correct order is passed therein, would in effect extend the meaning of the expression 'pending' in Section 33(2) of Act 30 of 1956 so as to cover certain cases which have already been disposed of and we see nothing in the context or in the other expressions used by the Legislature which justifies us in making that assumption.

6. It was urged also that the power of the Tribunal is only restricted by the last clause of Sub-section (2) in that the Tribunal is prevented from entertaining a fresh appeal or proceeding after Section 33 is brought into operation and as a corollary to the argument it is urged that this being an appeal which had been filed before Section 33 was brought into operation, the appeal must be deemed to be pending before the Appellate Tribunal. But Sub-section (2) consists substantially of two parts:

(i) The Appellate Tribunal is prohibited from entertaining any appeal or proceeding after the commencement of the Act; but

(ii) The Tribunal will dispose of certain limited classes of cases pending immediately before the commencement of the section.

It is, in our view, impossible to infer from this provision that the Legislature intended that cases in which appeals or proceedings which were lodged with the Appellate Tribunal and were heard and disposed of before the date on which the section was brought into operation were to be heard as if they were pending cases, merely because this Court or the Supreme Court sets aside the orders of the Tribunal after that date. The powers of the Tribunal cannot in our judgment be enlarged by assuming that a proceeding which is pending in the High Court or the Supreme Court as pending before the Tribunal.

7. It was also urged that in giving a liberal interpretation to the word 'pending'' before the Appellate Tribunal, we would in substance be restricting the power of the High Court to entertain appeals or proceedings against the orders of the Appellate Tribunal and that such a result could not have been intended by the Legislature. In our view there is no substance in that contention also. There is nothing in the Industrial Disputes (Amendment and Miscellaneous Provisions) Act which directly or indirectly operates to restrict the power of the High Court. The jurisdiction conferred upon the High Court by Articles 226 and 227 of the Constitution is not sought to be restricted. By a legislative process inconsistent with the Constitution the powers of the High Court cannot be restricted: but the restriction of the powers and functions of a Subordinate Tribunal does not result in curtailment of the powers of this Court under Articles 226 and 227 of the Constitution. The Legislature has, it is true, severely restricted the powers of the Appellate Tribunal, but the powers of this Court to issue writs or to exercise superintendence under Article 227 are no less in their amplitude since the amendment. This Court was before 1st September 1956 competent to entertain an application against orders passed by the Appellate Tribunal and even after 1st September 1956 this Court, remains competent to entertain applications against the orders which the Appellate Tribunal may pass in exercise of its circumscribed jurisdiction. The fact that the Tribunal's authority is restricted to certain classes of cases does not in our judgment affect the jurisdiction of this Court. We are, therefore unable to hold that the power of the High Court is sought to be restricted in a manner inconsistent with the provisions of the Constitution.

8. In our view the order passed by the Appellate Tribunal is for reasons heroin before set out liable to be corrected in exercise of the powers under Article 227 of the Constitution, and we are, therefore, justified in quashing that order. But we are unable to give any positive direction to the Appellate Tribunal because that Tribunal qua these proceedings docs not exist. We may point out that our power to quash the order passed in this proceeding which has been brought before us is not affected by reason of extinction of the Tribunal. That is clear from the observations made by their Lordships of the Supreme Court in Hari Vishnu Kamath v. Syed A. Isaq, : [1955]1SCR1104 (A). Those remarks were made in the context of an application under Article 226 of the Constitution but in our judgment they apply with equal force when we are called upon to exercise our powers under Article 227 of the Constitution. On the view taken by us, we quash the order passed on 1st June 1936 by the Labour Appellate Tribunal. Having regard to the circumstances there will be no order as to costs.

9. Order quashed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //