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Gangansingh Dumarshing and ors. Vs. S. Taki Bilgrami, Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 20 of 1966
Judge
Reported in(1973)ILLJ193Bom
ActsIndustrial Disputes Act, 1947 - Sections 8, 10, 10(1) and 33B
AppellantGangansingh Dumarshing and ors.
RespondentS. Taki Bilgrami, Industrial Tribunal and ors.
Excerpt:
.....- competency - sections 8, 10, 10 (1) and 338 of industrial disputes act, 1947 - respondent's award in industrial dispute challenged by employees on ground that matter was never referred to respondent - respondent authorised to adjudicate upon such reference on vacancy of previous officer by government - state government competent to appoint persons to fill vacancies in tribunals - tribunal though had entertained employees' application denied relief for reason of closure of employer - denial on said reason does not amount to failure to exercise jurisdiction - impugned award suffers no irregularity which warrants interference under writs - challenge dismissed. - - this is a disputed question of fact and by reason of the failure on the part of the petitioners to produce a..........to appreciate the petitioners' contentions on the award, a reference may be made to the original written statement filed by the 3rd respondent on 19th june, 1963. in paragraphs 13 and 18 of the written statement the 3rd respondent appears to have partially conceded the demands made by its employees as regards linking of dearness allowance to the cost of living index and the claim made for gratuity, though not accepting in full the contentions and the scheme proposed by the employees' union. it appears that negotiations went on between the parties and the hearings were postponed from time to time. however, on 17th august, 1964 a notice of closure was put up by the company, and on 20th august, 1964 the company gave intimation of the said closure to the secretary, government of.....
Judgment:

1. This is a petition under Art. 226 of the Constitution of India. Petitioners Nos. 1 and 2 claim to be employees of the third respondent, and petitioner No. 3 is a registered trade union of the workmen of the third respondent. The petition is in respect of an award made by the second respondent, and a copy of this award is to be found as part of Ex. A (collectively) to the petition. The award is in fact a part of the award, and the second respondent came to make this part award under circumstances which will be clear in the latter part of this judgment.

2. The award Part-I, hereinafter referred to as the award, was made in respect of three different references, being References (IT) Nos. 14, 77 and 338 of 1963. Reference No. 14 of 1963 was made on 1-10-1963 to the Tribunal consisting of the 1st respondent. It related to the disputes arising out of demands made by the company in schedule A, as also demands made by the union in schedule B annexed to the order of reference. It may be mentioned that this reference was made under the provisions of S. 10 of the Industrial Disputes Act, 1947, and it was made by the consent of the parties. Reference No. 77 of 1963 was made on 25-2-1963, also to the Tribunal consisting of the 1st respondent; it related to the disputes arising out of the demands for reinstatement of one Shri A. M. Rane and for bonus for all the workmen for a period between September to December, 1961. Reference No. 338 of 1963 was made on 3-10-1963 to the Tribunal consisting of Shri Athlye; it related to disputes arising out of demands made by the union for (i) bonus for the year ending 31-12-1962, (ii) wage scale and permanency for one Shri Mali and (iii) reinstatement of one driver with continuity of service and wages till reinstatement.

3. Now, the impugned award is, inter alia, challenged on the ground that the relevant industrial disputes were never referred to the 2nd respondent and that the 2nd respondent had accordingly exercised jurisdiction not vested in him by law. Without going into the other matters of controversy, this point may be first disposed of.

4. Mr. Ramaswamy appearing on behalf of the third respondent has drawn my attention to two notifications issued under Ss. 33B and 8 of the Industrial Disputes Act, 1947, respectively. Copies of these two notifications have been annexed as Ex. 2 (collectively) to the affidavit dated 1st October, 1966 filed on behalf of the third respondent in reply to the petition. I have seen the original notification dated 19th July, 1963 and the schedule A thereto. By this notification the Government of Maharashtra withdrew Reference Nos. 14 of 1963 and 77 of 1963 pending before the Industrial Tribunal consisting of the 1st respondent and transferred them to the Industrial Tribunal consisting of Shri N. A. Athlye. Thus when Reference No. 338 of 1963 was referred to Shri Athlye on 3-10-1963 he was the Industrial Tribunal dealing with all the three references, viz., References Nos. 14, 77 and 338 of 1963. By a notification dated 10th September, 1964, it was declared that a vacancy had occurred in the office of the presiding officer of the Industrial Tribunal due to absence on leave of Shri S. A. Athlye, and accordingly the 2nd respondent was appointed the presiding officer of the Industrial Tribunal in place and stead of Shri N. A. Athlye to fill up the vacancy caused by Shri N. A. Athlye being on leave. There was no notification of transfer under S. 33B of the Industrial Disputes Act, 1947.

5. Under the provisions of S. 8 of the Industrial Disputes Act, 1947, power is given to the State Government in the case of a Labour Court or Tribunal other than the National Tribunal to appoint a person to fill a vacancy other than a temporary absence and it is further provided that when appointment is made the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled. Thus under the provisions of S. 8, the 2nd respondent was competent to continue the proceedings in the subject-matter of the three references which were then pending before Shri N. A. Athlye, and there was no necessity of another notification under S. 33B. In view of the matter, there is no substance in the contentions raised in paragraph 17, sub-paras (b) and (c) of the petition.

6. This brings us to a consideration of the other contentions. It will be necessary in order to appreciate these contentions to set out a few facts.

7. In order to appreciate the petitioners' contentions on the award, a reference may be made to the original written statement filed by the 3rd respondent on 19th June, 1963. In paragraphs 13 and 18 of the written statement the 3rd respondent appears to have partially conceded the demands made by its employees as regards linking of dearness allowance to the cost of living index and the claim made for gratuity, though not accepting in full the contentions and the scheme proposed by the employees' union. It appears that negotiations went on between the parties and the hearings were postponed from time to time. However, on 17th August, 1964 a notice of closure was put up by the company, and on 20th August, 1964 the company gave intimation of the said closure to the Secretary, Government of Maharashtra, Labour and Industries Department. Subsequent to this closure, on 22nd January, 1965 an additional written statement was tendered by the company before the 2nd respondent in which a reference was made to this closure, and it was contended that in view of the said closure it would not be proper and/or permissible for the Tribunal to fix and award any incremental scales, dearness allowances and/or gratuity, and that there was no point in the Tribunal proceeding with the adjudication of the various demands as indicated in paragraph (3) of the said additional written statement. The employees filed their reply to this additional supplementary written statement, and that reply is one dated 8th February, 1965. The company thereafter filed a rejoinder to this reply which is dated 19th April, 1965. Thereafter the matter was heard by the Tribunal; and it appears that on 7th September, 1965 certain additional material was placed by the company before the Tribunal, and ultimately on 14th September, 1965 the Tribunal passed the impugned award.

8. A copy of the award has been annexed as part of Ex. A (collectively) to the petition. After considering the material on record the Tribunal has concluded that the concern of the 3rd respondent is 'really and completely' closed. Thereafter the Tribunal rejected the submission made by the learned counsel for the 3rd respondent that by reason of the closure the Tribunal ceased to have jurisdiction. The cases cited by the counsel have been distinguished and the Tribunal held as follows :

'... When, therefore, a dispute arises out of an existing industry and the reference is made, the Tribunal would have jurisdiction to deal with it. The circumstance that while the reference was pending the industry has been closed would not preclude the Tribunal from considering the claim on the ground that it falls outside the purview of the Industrial Disputes Act ...'

9. Although this submission was rejected, the Tribunal appears to have accepted the second branch of the argument of the learned counsel, viz., that in view of the closure most of the demands made by the employees could not be granted since they were such as could be granted only if the industry was to continue and not when it was closed. Ultimately this proposition was accepted by the tribunal which held that 'even though the Tribunal may have jurisdiction to consider the demands, having regard to the nature of the demands and the factors that need be taken into consideration in determining the grant and the circumstance that the industry is really and permanently closed, the demands ought not to be granted'. It may be pointed out that all the demands made by the company were also rejected and the remaining demands, i.e., those relating to bonus, reinstatement, withdrawal of suspension orders, etc., as pointed out in the last paragraph of the judgment of the Tribunal stood over for consideration. I am informed that in respect of those demands a separate award had been subsequently made.

10. As far as the additional supplemental written statement is concerned, it has been pointed out by the petitioners that the 2nd respondent ought to have refused leave to put in the said additional supplemental written statement, especially when the 3rd respondent had not sought leave to amend the earlier written statement or put in a supplemental written statement. Grounds E, F, and G in paragraph 17 of the petition pertain to the additional supplemental written statement. In my opinion, there is no necessity for any Tribunal, let alone a Court, to consider separately or to require a separate application for taking the additional statement on file. Whenever a pleading is tendered, the Tribunal or the Court does not automatically take it on file, but takes it on file only after considering whether it is relevant and further whether it should be taken on file bearing in mind the circumstances of the case and the rules of procedure. In the matter before the Tribunal the additional supplemental written statement was certainly relevant and full opportunity appears to have been given to the employees to put in their reply to the additional supplemental written statement. There is no substance whatever in the three grounds referred to above. However, Ground H in paragraph 17 of the petition alleges that the 2nd respondent acted illegally in refusing to record the evidence of the petitioners' witnesses before concluding that the concern of the 3rd respondent was closed. In this connection the petitioners have also filed an affidavit of the lawyer who conducted the matter before the Tribunal. On the other hand, the 3rd respondent has denied the allegation that the Tribunal has refused to record any evidence and in fact, it has been alleged that no application to lead evidence was made before the Tribunal. The relevant Roznama has not been produced. This is a disputed question of fact and by reason of the failure on the part of the petitioners to produce a certified copy of the Roznama, I am unable to come to the conclusion that the Tribunal refused to record evidence which was sought to be led by the employees. It is certain that if such a course of conduct had been adopted by the Tribunal, a written application or a note to that effect would have been put in by the employees.

11. That brings us to the question whether there was any material before the Tribunal for it to come to the conclusion that the concern of the 3rd respondent was closed. In their affidavit in reply the 3rd respondent has annexed as Ex. 3 (collectively) copies of various documents which would constitute in my opinion the material on which the Tribunal could have come to the conclusion. At this juncture I may refer to a judgment of this High Court which was relied upon by the learned counsel for the petitioners, being reported in Bombay Labour union v. Industrial Tribunal and another : (1969)ILLJ232Bom . In that case, disputes relating to four demands made on behalf of the workmen of Parisian Diary Company were referred to the Industrial Tribunal for adjudication under S. 10(1)(d) of the Industrial Disputes Act, 1947. In the course of the hearing the management reported closure of the business with effect from 1st March, 1966. On this the Tribunal declined to adjudicate the said demands since the benefits claimed were only long-term benefits and as the business of the company was closed there was no necessity to go into the merits of those demands. In a writ under Art. 227 of the Constitution of India, a Division Bench of this High Court held that the reference was decided in an unsatisfactory manner as there was no material before the Tribunal on which it could come to any conclusion as to the closure. The award was, therefore, set aside and the matter was remanded back to the Tribunal with a direction to permit the firm to file a supplemental written statement setting out their case of closure, the circumstances in which such closure took place and whether such closure was permanent or temporary, and to give an opportunity to the employees to controvert such case. The Tribunal was further directed to decide the reference according to law after the facts in this behalf are ascertained.

12. In the matter before me there is both a pleading by the company setting out its case and the circumstances under which the closure was made, as also material to indicate that the closure was a complete closure. In connection with the question of closure Mr. Ramaswamy on behalf of the 3rd respondent has drawn my attention to the judgments of the Supreme Court reported in Jang Bahadur Singh v. Baijnath Tewari; : 1969CriLJ267 , and Tatanagar Foundry Co. Ltd. v. Their Workmen : (1970)ILLJ348SC . In the first of these judgments the Supreme Court was considering what was a closure of business, and it held that there need not be a winding up of the company or a transfer of machinery for a closure. In the second judgment it was held that the motive of the concern in effecting the closure was irrelevant and immaterial.

13. Ultimately the learned counsel for the petitioners argued that the award of the 2nd respondent is liable to be set aside on the following three grounds : (i) that the Tribunal has failed to exercise jurisdiction in respect of the demands other than those mentioned in paragraph 10 of the award. It was argued that the decision of the Tribunal that these demands must be rejected amounts to failure to exercise jurisdiction. It was further contended that the closure was subsequent to the reference, i.e., non-existent on the date on which the disputes were raised and, therefore, the Tribunal was not right in or entitled to reject these demands on the ground of such closure. (ii) that the Tribunal should have decided many of these demands and should have granted the same to the employees even up to the date of the alleged closure. According to this submission, these demands such as wages, increments, dearness allowance, etc., should and could have been considered and granted to the employees up to the date of the closure, and this would not amount to substantial benefits being conferred on them. (iii) That the award discloses a flagrant violation of the principles of natural justice on the part of the tribunal. This pertains to the plea of closure which was allowed, and it was argued that the additional written statements ought not to have been allowed to be filed, that the company had not led any evidence, that the petitioners were prevented from leading evidence, and that the closure was not proved.

14. As far as the first of the grounds was concerned, in my opinion, the same is liable to be rejected inasmuch as the Tribunal has not refused to decide the disputed before it, but has in fact denied the reliefs sought for by the employees on the ground of closure. That would not amount, in my opinion, to any failure to exercise jurisdiction. On the other hand, such an award itself makes clear its exercise of the jurisdiction but denial of the reliefs in respect of these demands on the ground of closure of business.

15. As far as the second ground is concerned, it appears that the Tribunal could have adopted the course suggested by the learned counsel for the petitioners. On the other hand, what the Tribunal seems to have done is to apply the principles in Akola Electric Supply Company's case, reported in : (1963)IILLJ426SC . It was argued that that case had no application since in that case the matter of closure preceded the reference. However, the principle in that case appears to have been adopted and applied by the Tribunal, and it cannot be said that the Tribunal was manifestly in error in applying the said principle.

16. At this juncture a reference may be made to the jurisdiction of this Court under Art. 226 of the Constitution of India. The powers of the High Court under Art. 226 like those of the Supreme Court under Art. 32 are not confined to the high 'Prerogative Writs' known to the English common law, but the broad and fundamental principles that regulate the exercise of the jurisdiction in the matter of granting such writs in English law are not transgressed by the High Courts and the Supreme Court. The power of the High Court is wide and extensive. But it has been held that wide as the power is, it must be exercised along well-recognised lines and subject to certain self-imposed limits. It is well-settled that a High Court under Art. 226 will not act as a Court of appeal to correct an erroneous decision on the merits. In the exercise of such jurisdiction the Court also will not interfere with an error of fact of an inferior Tribunal, whether apparent on the face of the record or not. Reference may be made in this connection to (i) Basappa v. Nagappa, : [1955]1SCR250 , (ii) Veerappa v. Raman : [1952]1SCR583 , and (iii) Sangram v. Election Tribunal, : [1955]2SCR1 . In Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam, : [1958]1SCR1240 , the Supreme Court has laid down as follows :

'...... One of the Grounds on which the jurisdiction of the High Court on certiorari may be invoked is an error of law apparent on the face of the record and not every error either of law or of fact which can be corrected by a superior Court, in exercise of its statutory powers as a Court of appeal or revision. In this respect the law in India and the law in England are the same ......'

17. In the matter before me, it is not possible for me to hold that the Tribunal has disregarded any mandatory provisions of law or that it has acted in such a manner as may be said to have violated the principles of natural justice. On a scrutiny of the material before the Tribunal and detailed examination of the evidence before it it is possible that a Court having appellate or revisional jurisdiction over the decision of the 2nd respondent may come to a different conclusion from the one which he has given. However, this is not permitted to the High Court under Art. 226 of the Constitution of India. In fact most of the complaints of the petitioners which are to be found in paragraphs 15 and 17 of the petition, are very similar to the grounds which could be urged in a memo of appeal from the award of the 2nd respondent and which must, therefore, be rejected in consideration of this petition.

18. It is unnecessary in my opinion to discuss in detail each of these grounds, since on the broad approach I have indicated above I must hold that there is no occasion to interfere in a writ under Art. 226 of the Constitution with the impugned award of the 2nd respondent.

19. In the result, the petition fails and must be dismissed. However, there will be no order as to costs.


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