P.K. Subramanya Iyer, J.
1. This is an application by the proprietor of the Nagercoil Kleotrio Supply Corporation which will hereinafter be referred to as the corporation, under Article 226 of the Constitution of India for a writ of certiorari to call up to this Court and quash the interim award passed toy the first respondent, the industrial tribunal, Trivandrum, in industrial dispute No. 13 of 1951.
2. The business of the corporation is the generation and supply of electric power which is a public utility service as defined in Section 2(n)(iv) of the Industrial Disputes Act, XIV of 1947. Being able to get some power-in bulk, there was less need for generation which was therefore reduced. The result was a move for the retrenchment of the employees. Disputes having arisen between the corporation and the employees, proceedings for conciliation under the Act were started by the conciliation officer on 9-4-1951. Pending these proceedings, 14 workmen were retrenched on 28-4-1951, and the services of 14 others were dispensed with on 2-5-1951. Government referred the dispute consequent upon the aforesaid events to the industrial tribunal, Trivandrum, and that proceeding has- been numbered as 7/1951 before the tribunal. Pending those two proceedings, there was a meeting of the corporation, and the employees represented by the South Travancore Electrical Workers Union in the presence of the Chief Minister, the Minister for Labour, the Chief Engineer, Electricity, the Assistant Secretary to Government and the assistant labour commissioner on 9-6-1951. At that meeting an. agreement was arrived at. A copy of the proceedings of that meeting is marked exhibit A in industrial dispute No. 13/51 in which the interim award challenged by this petition was passed. The following are the four matters agreed to at that meeting:-
(1) It was agreed that the total number of workers required for the efficient working of the Nagercoil Electric Supply Corporation be decided by the Chief Engineer (Electricity). The number of people required in the various sections of the corporation will also be decided by the Chief Engineer (Electricity).
(2) Actual retrenchment, if it is ultimately found to be necessary, will be effected by the management in consultation with the Labour Commissioner, or assistant labour commissioner.
(3) Till retrenchment, if found necessary, is given effect to, the 14 workers retrenched as well as 14 workers dismissed will be paid their wages by the employer from the date of their retrenchment or dismissal as the case may be. The arrears will be paid on or before 12, June 1951.
(4) The union agrees to call off the strike, satyagraha and other demonstrations started by them in this connexion.
Pursuant to item (1) in the agreement, the Chief Engineer (Electricity) visited the premises, examined the records, made the requisite investigation, prepared and submitted a report to Government on 16-6-1951. An extract of that report was submitted to the tribunal and was received there on 28-11-1951. The tribunal, however, does not appear to have perused the report though the interim award assailed was passed only on 27-12-1951 and the hearing in respect of which was only on 20-12-1951. The relevant portion of the report must be read which is as follows:-
The work connected with the electric supply in Nagercoil comprises of operation of the power house for about three hours daily, maintenance of the distribution system, service to consumers, meter reading and billing for the energy consumed. There is practically very little new construction work and all that the licensee has to carry out is maintenance of the existing system. For this purpose, the staff employed by him as shown in statement I is more than ample and I do not consider that there is any scope for providing employment for more staff. The retrenchment proposed by him was therefore quite in order though the method adopted is quite irregular. I have made the comparison of the number of people engaged by him with Government owned distribution systems of similar size and I am quite satisfied that the staff employed by him at present is quite sufficient for maintaining the system very efficiently.
I may, however, remark in this connexion that the method adopted by the licensee for retrenching is not in conformity with any accepted principles. If statement II is perused, it will be seen that he has retrenched several people who have had long service while he has retained persons with comparatively short periods of service. At the time of retrenchment no proper explanation has been given for retrenching persons with long service, and therefore the grievances of the strikers appear to be genuine as far as this aspect is concerned. This is a matter for the Labour Commissioner to go into and he may be given instructions to take suitable action.
Though the tribunal had not read this report, the respondents to this petition of whom the first is the industrial tribunal, Trivandrum, and the second, the aforesaid union representing the workmen in the corporation, made written requests before me that I might read and utilize this report for purposes of this petition.
3. On 14-8-1951 a reference was made by Government to the industrial tribunal, Trivandrum, as under:-
Whereas an industrial dispute has arisen between the management of the Nagercoil Electric Supply Corporation, Nagercoil, and the workers of the above concern represented by the South Travancore Electrical Workers' Union, Nagercoil, in respect of the matters mentioned in the annexure to this order;
And whereas in the opinion of Government it is necessary to refer the said industrial dispute for adjudication;
Now therefore in exercise of the powers conferred by Section 10(1)(c) of the Industrial Disputes Act, 1947 (central Act XIV of 1947), Government hereby direct that the said industrial dispute be referred for adjudication to the industrial tribunal, Trivandrum, having its place of sitting at Trivandrum.
1. Who are the workers that are to be retrenched from the Nagercoil Electric Supply Corporation as per the decision of the Chief Engineer, Electricity ?
2. Whether any gratuity and other benefits are to be granted to the workers on the termination of their services? If so, what they should be?
3. Whether any arrear wages should be given to the retrenched, discharged or dismissed workers?
This reference is numbered by the tribunal as 13 of 1951. Pending this proceeding, an application was made by the president of the workers' union on 23-10-1951 for an expeditious disposal of the matter and praying that 'an interim relief at least be passed pending final decision.' This is petition No. 262. It is pursuant to this petition that the tribunal passed the interim award that had led to this application in this Court.
4. On receipt of the reference, the tribunal called upon the concerned parties to submit their written statements. The second respondent filed a written statement on 30-8-1951. That part of it relating to the third of the points referred to the tribunal by Government is material and has to be read in full:-
Point No. 3: The respondent submits that point No. 3 in the annexure is vague and ambiguous and better particulars are to be stated for the decision, In my answer to point No. 2 in the annexure, I have stated that arrears of wages shall be paid to the retrenched workmen. In the circumstances of this case no question of discharge or dismissal of workers arises for decision in this dispute for the following reasons.
(a) The representatives of the South Travancore Electrical Workers Union submitted their demands against the management before the assistant labour commissioner of this State by letter dated 22-3-1951. The letter of demand contained provisions among other things that the management of the Nagercoil Electric Supply Corporation shall not discharge, dismiss or otherwise change the conditions of service of the workers to their prejudice.
(b) In pursuance of the demand, the conciliation officer constituted under the Industrial Disputes Act XIV of 1947 commenced conciliation proceedings to settle the dispute on 9-4-1951. The management evaded taking part in the proceedings while at the same time the management discharged the workers and dismissed another 14 workers by order dated 28-4-1951 and 2-5-1951 respectively.
(c) As there was no settlement arrived at in the conference, Government referred the dispute to this tribunal by order dated 8-5-1951, The case is still pending in industrial dispute case No. 7 of 1951 before this tribunal.
(d) The discharge of the 14 workers on 28-4-1951 and the dismissal of another 14 workers on 2-5-1951 is clearly illegal and void as being contrary to Section 33 of the Industrial Disputes Act XIV of 1950.
(e) Further the management and the union have come to a settlement on 9-6-1951 in the course of the conciliation proceedings commenced by the Chief Minister Clause 3 of which is as follows:
Till retrenchment, if found necessary, is given effect to, the 14 workers retrenched as well as the 14 workers dismissed will be paid their wages by the employer from the date of the retrenchment or dismissal as the case may be. As per this agreement, also no dispute as to payment of their wages arises. All the persons purporting to be discharged or dismissed as the case may be are deemed to be still working and their wages shall be paid till the award or the issue takes effect.
In Clause (e) of the original script which was in type there was originally 'conciliation officer'; that is seen struck off and 'Chief Minister' written instead. On 20-12-1951 two applications were presented before the tribunal, one on behalf of the corporation and the other on behalf of the labour by the president of the union. In the application presented on behalf of labour, it is prayed that the case, that is, industrial dispute No. 13/51, be taken up for argument even that day as that course is stated to be acceptable to the corporation as well. The tribunal passed the following order on that application on -the very same day:-
The president of the union submits that the application for interim award be heard and disposed of immediately. Mr. Kumara-swami Pillai also agrees that the petition can be heard but with regard to the main dispute some time has to be granted and he has filed a petition for time for that purpose. Since both parties agreed that the interim relief petition can be heard and disposed of, this petition is allowed. With regard to the main dispute the application for time is allowed.
In the application presented on behalf of the corporation it is stated that the case is only to be argued in the light of the report of the Chief Engineer (Electricity). There is a complaint recorded therein that no copy thereof had been supplied to them. It is stated that it is understood that a copy has been sent to the tribunal and therefore an application is made for a copy thereof from the tribunal. To enable the corporation to get* a copy and argue the matter, it was prayed that the case may be adjourned to another date. On that application the following order was passed by the tribunal:-
Time is allowed for arguing the main dispute. The applicant has no objection to argue the petition filed by the union for interim relief.
The prayer for interim relief was discussed and argued before the tribunal on 20-12-1951. The tribunal has written a very elaborate order referring to the history of the dispute between the parties, the various stages through which the dispute developed and concluded by recording its' decision in paragraph 8 as follows:-
I hold that the management has to pay the wages with arrears to the twenty eight workers who are either retrenched or dismissed and have to find issue No. 3 in favour of the union. It is admitted by both sides that the management has paid a portion of the arrears of wages to the workers. The management will pay to the twentyeight workers the wages remaining unpaid and continue to pay it till retrenchment, if found necessary, is given effect to.
Besides pressing for the grant of interim relief, a prayer for prosecuting the corporation for not implementing the agreement arrived at on 9-6-1951 was also made by the union on behalf of labour. The tribunal took a sympathetic view of the matter and concluded paragraph 9 by the following sentence :
Taking an equitable and lenient view of the whole matter, I do not find there is a case for prosecution of the management.
The interim award concludes by the tenth and last paragraph thus:-
In the result I pass this interim award ordering the management to pay the arrears within a week from the date of publication of the award in the Gazette, as specified above and this will be in effect till final award is passed. I submit this award to Government under Section 15 of the Industrial Disputes Act (central Act XIV) of 1947.
That award was published by Government in the Gazette, dated 29 January 1952, at pages 86 and 87 of Part I.
5. On behalf of the corporation this award is challenged on various grounds. It is alleged that the law does not contemplate the passing of an interim award. The only award, it is contended, that could be passed by a tribunal is on the conclusion of the enquiry and not during the course of it as provided for in Section 15 of the Act. Such an award has to be published in the Gazette under, Section 17. Though under Section 2, Clause (b),
Award means an interim or final determination by an industrial tribunal of any industrial dispute or of any question relating thereto.
it is contended that the interim determination mentioned therein does not relate to the determination of any of the points referred to the tribunal for adjudication under Section 10 of the Act but' has relation to the matters which could be dealt with by the tribunal on account of events happening in the course of the enquiry before it under Section 33 of the Act. which matters are to be dealt with by the tribunal as if it were a dispute so referred to, It is contended that the tribunal has exceeded its jurisdiction in the matter of passing this interim award, that the only matters referred to the tribunal are those mentioned in the annexure to the Government order of reference which has already been read, and that the subject matter of the interim award is beyond the scope of any one of the matters mentioned in the annexure.
6. It is further urged that there is an error apparent on the face of the record in that the tribunal was under the misapprehension that point No. 3 among the four points of agreement reached at the conference on 9-6-1951 is issue No. 3 in the annexure referred for decision of the tribunal. It is also contended that viewed as an award under Section 15 of the Act, as the interim award purports to fix a period of a week from the date of its publication for its coming into force, it violates the provisions of the Act as regards the coming into operation of awards under Section 15, as under Section 17-A an award shall become enforceable only on the expiry of thirty days from the date of its publication in the Gazette. The fixation of the period of seven days from the date of publication for its coming into force, it is contended, is an inseparable part of the award and therefore the fixation of time being ultra vires, the entire award is vitiated.
7. The scope of the jurisdiction of the industrial tribunal is the scope of the reference made by Government under Section 10, except, in respect of the matters mentioned in Section 33 of the Act which have reference to supervening events which could be dealt with as if it were a dispute referred to and pending before the tribunal in accordance with the provisions of the Act. Interim relief as the term indicates is in aid of the final relief ultimately to be granted and the power to grant interim relief is inherent in and incidental to the power to grant the final relief. Except in aid of a final relief which could be granted, no interim relief can be thought of or given, The annexure to the reference made to the tribunal which delimited the scope of its jurisdiction would clearly indicate that the opinion of the Chief Engineer to the effect that there was a legitimate retrenchment made by the corporation, is accepted and what had to be decided related only to the particular individuals who should be sent out on such retrenchment. The report of the Chief Engineer which has already been read rendered it necessary to make this reference because, according to him, the actual retrenchment effected was not in accordance with the principles especially with regard to the length of service rendered by the various employees. Point No. 1 in the reference has therefore only the scope of determining the particular individuals who are to be retrench-ed and does not concern the question whether there should or should not be any retrenchment at all. Points 2 and 3 referred to for decision arise as a consequence of the final determination to have retrenchment, and upholding the retrenchment already effected as regards number though not as regards individuals. Point 2 refers to gratuity and other benefits to workers on account of the termination of their service and point 3 refers to arrear wages to be given to the retrenched, discharged or dismissed workers. Obviously no question regarding the necessity for retrenchment has been referred for decision to the tribunal nor is the question of payment of future wages referred for adjudication. On 9-6-1951 when the four points of settlement were reached at the conference aforesaid, the question of the necessity of the retrenchment and of the propriety of the retrenchment effected by the corporation was a question open for decision. The first point of the agreement was that that question should be decided by the Chief Engineer. He did decide it within a week of the agreement as already stated. The second point of the said agreement refers to the carrying into effect of the retrenchment if it is found to be necessary by the Chief Engineer under point No. 1. The Chief Engineer having found retrenchment necessary and justified, the question who are the persons to be retrenched arose and was referred for adjudication. The third point related to the question what is to happen until the necessity for retrenchment is found and the retrenchment is actually brought into effect. That would have operation only until retrenchment is found to be necessary but not after it is so found, at any rate, except in respect of its implementation by identifying the individuals to be retrenched. As already stated, the question whether retrenchment is or is not necessary is beyond the scope of the reference and therefore beyond the scope of the jurisdiction of the tribunal to whom the reference was made. The conclusion reached by the tribunal in paragraph 8 of the award that is assailed in this proceeding, which has already been read, proceeds on the basis that the question whether retrenchment is necessary or not is yet to be found or decided. This is clear from the last sentence of that paragraph which may again be read:
The management will pay to the twenty-eight workers the wages remaining unpaid and continue to pay it till retrenchment, if found necessary, is given effect to.
The tribunal does not appear to have been aware of the fact that the Chief Engineer did find retrenchment necessary and that point No. 1 referred to him for adjudication pro-coeds on the basis of the existence of the necessity for retrenchment which had been made. The remaining question was merely who are the individual workers that are to cease to be in service on account of that process. The list appended to the report of the Chief Engineer will show that on 1-4-1951 there were 16 workers in the power house Section 20 in the main section and 26 in the ministerial section. There was a retrenchment of 14 workers and dispensation of the service of another 14 on 28-4-1951 and 2-5-1951 respectively with the result that on 16-6-1951 when the Chief Engineer visited the premises there were only 12, 8 and 12 workers in the said three departments, respectively, totaling 32 in all. This strength was held by the Chief Engineer to be sufficient for running the business as at that time. No question, therefore, of increasing the number of workers would arise. A look into the dates of appointment of the various workers contained in the list given by the Chief Engineer would show that though the persons retrenched and whose services had been dispensed with were not all according to their age in the service, there may be no case for all the 28 of them to get back even if length of service alone is regarded as the basis for retrenchment and for dispensing with service. In no view of the matter would, therefore, a case arise that the corporation should pay the wages to all these 28 workers and yet what the award directs the corporation to do is to pay to the 28 workers the wages remaining to be paid till then and continue to pay it thereafter. As already stated, the question of future wages on the basis of non-necessity for retrenchment is beyond the scope of the reference and outside the jurisdiction of the tribunal. it is thus clear that in passing the award that is challenged by the corporation, the tribunal was exceeding the jurisdiction conferred upon it by the reference made by Government and that the award passed on such usurpation of jurisdiction cannot be sustained.
8. The tribunal appears to be under a misapprehension as regards the proceedings on 9-6-1951 before the Chief Minister and others (Ex. A.) The tribunal refers to that proceeding in paragraph 2 of the award. What happened that day is called a conference and in describing those who attended it, the last, viz., the assistant labour commissioner, is stated by the tribunal to have been there as 'conciliation officer.' Ex. A. which is a correct record of the proceedings of that day, does not describe the assistant labour commissioner as conciliation officer. It was true that he was at that time a conciliation officer appointed by Government under the provisions of the Act but whether he was there in his capacity as conciliation officer or not does not appear. Learned Counsel for the second respondent contends that as the contrary does not appear, it must be deemed that he was there as conciliation officer because he was conciliation officer also then. It is contended that the presence of the other persons including the Chief Minister will not render it any the less a conciliation proceeding before a conciliation officer. The importance of the question whether the proceedings on 9-6-1951 were conciliation proceedings or not is this. If there were proceedings of conciliation as provided for by the Act, then the settlement arrived at would be binding on the parties as such an award passed by a tribunal and any infringement or violation of that settlement would expose the transgressor to the penalties provided by the Act besides enabling the claimant to have the remedies enforced specifically. Section 29 of the Act provides that
If any person commits a breach of any term of any settlement or award which is binding on him under this Act, he shall on his first conviction therefore be punishable with fine which may extend to two hundred rupees and in the event of a second or subsequent conviction, with fine which may extend to five, hundred rupees.
The contention urged before the tribunal for purposes of the interim relief that was granted by the interim award impeached would appear to be that the proceedings on 9-6-1951 were conciliation proceedings and that the settlement arrived at therein would be binding on the parties. As stated already, two points were pressed before the tribunal in connexion with the grant of interim relief. The first was the grant of the relief as provided for in point No. 3 in the settlement and the second was the prosecution of the corporation for not implementing the undertaking contained in point No. 3.
9. In the answer of the second respondent before the tribunal as regards point No. 3 which has been already read in extenso, the second respondent understands the distinction between a proceeding for conciliation under the Act as distinct from the proceeding on 9-6-1951 which is not stated to be a proceeding for conciliation under the Act but is merely stated to be a conciliation proceeding commenced by the Chief Minister. No reliance was placed on the presence of the assistant labour commissioner at that conference which is characterized as one commenced by the Chief Minister, that is to say, though the assistant labour commissioner was present, his presence is not considered to be of any significance or importance. The expression 'conciliation officer' which was originally there in the typed script was removed by striking off and the 'Chief Minister' was put instead. Except the argument addressed at the bar which appears to have been successfully addressed before the tribunal, there is nothing to indicate that the assistant labour commissioner was functioning then in his capacity as conciliation officer. If pending the case No. 7 of 1951 before the tribunal or the conciliation proceedings started by the assistant labour commissioner as conciliatian officer on 9-4-1951 which has been already referred to, the corporation has retrenched or dispensed with the services of workmen, that conduct would render the matter one cognizable in those very proceedings under Section 33 of the Act. The conduct of the corporation in these matters is not regarded as amounting to misconduct under the provisions of the Act. The assistant labour commissioner does not appear to have sent a report to Government as required by Clause 3 of Section 12 of the Act in respect of the proceedings dated 9-6-1951. The argument by learned Counsel for the second respondent that, in the absence of anything to the contrary, it must be taken that such a report must have been sent is based on the assumption that the proceedings dated 9-6-1951 were conciliation proceedings as contemplated by the Act; that was the case presented before the tribunal; it was that case that was accepted by the tribunal and it is that that is made the basis of the award impeached in this proceeding. A settlement come to in the course of conciliation proceedings is binding and enforceable under the provisions of the Act. Not so an agreement come to between the employer and the workmen otherwise than in the course of a conciliation proceeding. Such an agreement may be binding but, for its enforcement, resort must be had to the ordinary civil court and not to the machinery provided by the Industrial Disputes Act. Such an agreement cannot form the foundation of the grant of an interim relief by a tribunal, nor has it been made the foundation of the grant of such a relief. If, therefore, the proceedings of 9-6-1951 are not and could not be conciliation proceedings within the meaning of the Act, the foundation on which the award is based ceases to be. The tribunal appears to have been of the impression that Ex. A represents proceedings in conciliation as contemplated by the Act and that point No. 3 agreed to at that conference would be binding and can be given effect to by way of interim relief in case No. 13/51. The tribunal, in paragraph 4 of the award, appears to recognize that if the matter does not come under the reference, it may not be within its competence to grant an interim relief. He therefore states that point No. 3 (which is called resolution No. 3) in the agreement dated 9-6-1951 is the same as issue No. 3 in the order of reference. It is on this basis that the tribunal has passed the award as is clear from paragraph 8 which has been already read. Reference may here again be made to the written objection filed on behalf of the second respondent before the tribunal that point No. 3 is not a matter of difference at all and that there will be no dispute on that head, the reference itself is out of order and there is nothing to be decided by the tribunal in connexion with point No. 3. If so, point No. 3 goes out of the tribunal's jurisdiction. In any event, it would not be competent for the party repudiating the jurisdiction of the tribunal to decide upon point No. 3, to request for an interim relief on the basis that point No. 3 arises for decision by the tribunal and that the No. 3 in the reference is identical with No. 3 in the points of agreement recorded on 9-6-1951. The representation so made by the second respondent to the tribunal is consistent and intelligible because point No. 3 of the agreement dated 9-6-1951 is a point of agreement and No. 3 in the annexure to the reference to the tribunal is a point of difference. How could a point of agreement be a point of difference was the difficulty felt by the second respondent and should have been felt by' the tribunal as well. Before me also, learned Counsel for the second respondent stressed the identity of the two items, No. 3 in the annexure to the reference and No. 3 in the point of agreement at the conference dated 9-6-1951. More comment is needless. It need only be said that it is impossible to consider point No. 3 of the points referred for adjudication to the tribunal by Government to be the same as point No. 3 in the points of agreement reached at the conference on 9-6-1951. One thing is clear that it was on the basis of this alleged identity of the two points, and further on the basis that point No. 3 of the agreement recorded on 9-6-1951 is one of the points arising for decision by the tribunal ultimately that the interim award is passed. In my judgment there does not exist any room for any controversy in this matter as it appears to be obvious that it is on the basis of the existence of a necessity for retrenchment as found by the Chief Engineer that the reference was made by Government to the tribunal. The question whether such a necessity does or does not exist is absolutely .foreign to the scope of the proceeding before the tribunal. Point No. 3 of the agreement dated 9-6-1951 which refers to this question as one pending determination is therefore clearly not one arising for decision before the tribunal. The tribunal being thus on a misapprehension as to the points that arose before it for decision and that misapprehension appearing on the face of the order, there is an error apparent on the face of the record which would constitute a ground for interference by this Court. Error .apparent on the face of the record has been recognized by the Supreme Court as a ground for certiorari (Parry and Co. Limited v. Commercial Employees Association, Madras, and Anr. (See, 1952-1.L.L. J., p. 769).
10. As in the view that I have taken that the interim award assailed in this proceeding has to be quashed on account of the tribunal having usurped jurisdiction and as the award is vitiated by an error apparent on the face of the record, it is unnecessary forme to consider the other questions raised by the learned Counsel for the petitioner as also leading to the same result. One point has, however, to be mentioned. It was submitted on behalf of the respondents that because another remedy is available to the petitioner, this Court ought not to interfere by a writ of certiorari. The remedy stated to be available is by way of an appeal against the award. The award in question does not admit of being classified under any category. It says it is an interim award. It says further that it will have effect only until the final award is passed. At the same time it says that the award is submitted to Government under Section 15 of the Industrial Disputes Act. Section 15 contemplates making and submission of awards at the conclusion of the enquiry as the final award in the case. Section 15 does not contemplate the passing of interim awards. Whether an appeal will lie in a case of this description is not a matter free from doubt. Assuming an appeal will lie, that circumstances will not debar this Court from quashing the proceedings which are obviously the result of usurpation of jurisdiction and which are vitiated by an error apparent on the face of the record.
11. Legislation regarding industrial disputes is aimed at achieving expeditious disposal. The interim award which is assailed in this case, as already stated, was passed on 27-12-1951. After this original petition was presented in this Court, an order of stay was obtained and papers were called for. The result was that case No. 13 of 1951 before the tribunal could not be proceeded with and is still pending. If the petitioner is to be directed to prefer an appeal to the appellate authority, then the result would be, that the proceedings might have to be stayed until the result of that appeal whose period of pendency nobody can predict. In view of the fact that this Court has jurisdiction, it appears to me proper to exercise the discretion vested in this Court to quash the proceedings which are bad on their face and not to direct the party to pursue another remedy, assuming any other is available.
12. The result is that the interim award passed by the tribunal on 27-12-1951 is quashed. The original petition is allowed with costs; advocate's fee Rs. 200.