1. These are two appeals from a judgment of Mr. Justice Chaturvedi dated the 2nd November, 1954, dismissing two writ petitions filed by the appellant under Article 226 of the Constitution.
2. The circumstances in which the petitions were filed can be stated, shortly. The petitioner is a limited Company and carries on the business of cotton spinning and weaving in Kanpur. In April and May 1930 large quantities of cloth were stolen from the petitioner's warehouse and on 13th June, 1950, the Employers' Association of Northern India, at the instance of the petitioner, moved the Regional Conciliation Board to enquire into an industrial dispute which it was contended had arisen between the petitioner and its workmen and to declare that the former would be justified in terminating the services of 27 members of its Watch and Ward personnel. The Regional Conciliation Board conducted an enquiry, and by an award dated the 2nd September, 1950, it held that the petitioner was entitled to terminate the services of the 27 members of its Watch and Ward personnel on payment to them of compensation. The Employers' Association of Northern India preferred an appeal on behalf of the petitioner against this award and cross appeal was also filed by the Suti Mill Mazdoor Union, Kanpur, on behalf of the 27 employees.
3. On the 24th January, 1951, the Industrial Court allowed the appeal filed by the employers' Association and dismissed that filed by the Suti Mill Mazdoor Union; and shortly thereafter the petitioner discharged the 27 employees from its service. These former employees then filed an appeal from the order of the Industrial Court before the Labour Appellate Tribunal of India which on the 15th January, 1952, without going into the merits of the case, allowed the appeal on the ground that the Employers' Association of Northern India was entitled to move the Conciliation Board on behalf of the petitioner. It then appears that overtures were made by the Suti Mill Mazdoor Union to the petitioner on behalf of the 27 discharged employees and negotiations, presumably in connection with their proposed re-engagement, continued till the end of May 1952. The negotiations did not result in the reengagement of the 27 former employees and on the following 23rd July the State Government referred to the State Industrial Tribunal the question whether the Petitioner's discharge of the 27 former employees was justified.
It was in these circumstances that the petitioner filed two petitions Nos. 338 and 339 of 1952. In the former of these petitions (out of which arises Appeal No. 206 of 1954) the petn. challenged the reference made by the State Government to the State Industrial Tribunal by its order dated the 23rd July, 1952, and prayed for the issue of a writ in the nature of mandamus commanding the State Government to withdraw the reference, and for a writ in the nature of prohibition to restrain the State Industrial Tribunal from proceeding with the hearing of the reference.
In Writ Petition No. 339 of 1952 (out of which arises Apneal No. 205 of 1954) the petitioner challenged the validity of the order of the Labour Appellate Tribunal dated the 15th January, 1952, and prayed that it be quashed by the issue of writ of certiorari.
4. The learned Judge was of opinion that the decision of the Labour Appellate Tribunal was vitiated by errors of law apparent on the face of the record, but he declined to intervene on the ground that there had been undue delay in filing Petition No. 339. As it was not in dispute that the decision in Petition No. 338 depended on the decision of Petition No. 339 he dismissed both petitions.
5. In this Court a preliminary point of some importance has been raised by the representative of the Suti Mill Mazdoor Union and it has been argued by him in person. It is said that this Court cannot call for the record and quash the order of the Labour Appellate Tribunal dated the 15th January, 1952, as that record is in Calcutta and consequently beyond the reach of the Court.
6. This point was not raised in the proceedings before Mr. Justice Chaturvedi and it is in circumstances somewhat difficult to ascertain the facts. Certain matters are however not in dispute. It was not until the 2nd March, 1953, that the Labour Appellate Tribunal established a Bench (known as the IIIrd Bench), at Lucknow. Prior to that the Labour Appellate Tribunal had no permanent or semi-permanent office in the Uttar Pradesh.
A Bench of the Tribunal visited various places in the Uttar Pradesh for the purpose of disposing the appeals, and it was in the course of one of such visits that the Tribunal heard at Allahabad the appeal the validity of which is now challenged. It is not in dispute that Prior to the establishment at Lucknow of the IIIrd Bench the records of appeals heard in Uttar Pradesh were sent to Calcutta after the decision had been announced, and that it is in Calcutta that the record of the appeal which this Court is asked to quash now is.
The appeal by the respondent Union to the Labour Appellate Tribunal was filed in Calcutta where at that time the Tribunal had its principal seat, aS the petitions out of which these appeals arise were filed in 1952 the petitioner joined as opposite-party No. 3 'The Labour Appellate Tribunal, Calcutta', but in view of the establishment in 1953 of the IIIrd Bench the third respondent in each of the appeals is named as the Labour Appellate Tribunal, Lucknow.
7. A writ of certiorari is directed to the Tribunal or officer whose decision is to be reviewed or to any other person having the custody of the record to be certified, (see Hari Vishnu Kamath v. Ahmad Ishaque, 1955 SCR 1104: ( (S) AIR 1955 SC 233) (A) and the question we have to determine is whether the IIIrd Bench now has the custody of the record. The acid test is whether its members can be proceeded against for contempt should they neglect or refuse to obey an order of this Court directing them to certify that record. This is, in my opinion, primarily a question of fact, and although the point at issue was raised when the appeal first came before the Court on the 13th October, 1955, and that thereafter the hearing was adjourned to the 17th November, 1955, to enable the parties to consider the matter no application was made on behalf of any party to file any further affidavit for the purpose of elucidating the facts.
8. Each Bench of the Labour Appellate Tribunal appears to be invested with all the powers of the Tribunal; the IIIrd Bench sitting at Lucknow would therefore have the power to call for the production before it of a record in the actual custody of the Tribunal at Calcutta, but at the same time it would appear equally to be the case that the Tribunal at Calcutta could refuse to part with it.
In a case such as the present it is of course unlikely that the Tribunal at Calcutta would take this course, but the fact is that it could, it would seem, refuse to accede to the request of the IIIrd Bench. As in such circumstances this Court would not be in a position to enforce an order directing the IIIrd Bench to certify the record, it ought not in my opinion to issue a writ to that Bench for it should not issue an order the obedience of which it cannot enforce.
Mr. Pathak has suggested that the IIIrd Bench is an agent of the Tribunal at Calcutta, but I do not think that that is so. The true position appears to be that the several Benches of the Tribunal are bodies of coordinate jurisdiction each possessing the same powers, and accordingly however desirous a Bench may be to comply with the orders of the High Court within whose jurisdiction it is established, it has not the power to compel another Bench to send to it a record which is at the time in the custody of the latter.
It is in my opinion for the party who seeks the issue of a writ to satisfy the Court that it has the power to enforce compliance with the order it may make. I am not satisfied in the present case that this Court has that power and I therefore think that the objection must be upheld. The result is, therefore, that both appeals fail and they are accordingly dismissed with costs.
9. I agree. A writ of certiorari is issued to an officer who is in lawful charge of the record of a case decided by a judicial or quasi-judicial tribunal so that the record may be sent for and if it is found that any order has been passed which was without jurisdiction or on the face of it erroneous in law, it may be quashed. The jurisdiction of this Court to issue a writ therefore is to be determined by the residence of the person in whose lawful custody the record is.
The custody of an agent will be construed as the custody of the principal and therefore where the record is in the custody of an agent who is beyond the jurisdiction of the Court but if the principal is within the jurisdiction the principal may be compelled to get the record from the agent and the writ can be issued concerning any order in that record.
10. In the present case upon the preliminary objection the problem is to find in whose lawful custody the record now is. It is obviously in the custody of the labour Appellate Tribunal at Calcutta. The Labour Appellate Tribunal exercises jurisdiction over the whole of India. It exercises the jurisdiction through several Benches. One of the Benches sits at Calcutta, another at Bombay and a third one at Lucknow. All these Benches have concurrent jurisdiction but their territorial jurisdictions are separate.
The case with which we are concerned, in the present appeals was decided by a former Bench which used to sit at Allahabad. That Bench has been abolished but its places has been taken by the third Lucknow Bench and so if the record were in the custody of the third Bench at Lucknow there would have been no difficulty in this Court issuing a writ of certiorari to that Bench, but on the abolition of the Allahabad Bench the record was sent to Calcutta and it is in the lawful custody of the Calcutta Bench.
It cannot be said that the Calcutta Bench holds the record as an agent of the Lucknow Bench. The Calcutta Bench being outside the jurisdiction of this Court, this Court has no power to issue a writ of certiorari to that Bench. A writ cannot also be issued to the Lucknow Bench for the record is not of that Bench nor can it betreated as the principal custodian of the record.