Skip to content


A.P. Simon Vs. the Central Government Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1953)IILLJ739Ker
AppellantA.P. Simon
RespondentThe Central Government Industrial Tribunal and ors.
Cases ReferredHigh Court (see P. D. Shamdasani v. Central Bank of India
Excerpt:
.....levelled against any of the other respondents in the matter of the compromise entered into or the award passed except that the impugned portion in alleged to be bad in law as being in excess of the jurisdiction of the tribunal. it is true'5 that the scope of the jurisdiction of the tribunal is the scope of the reference ;the award can have regard not merely to 'the actual dispute referred but also to matters relating thereto, and the things complained of are undoubtedly such matters. 10. if the award is good, as, in my judgment, it is in every respect, the petitioner is not entitled to any relief in these proceedings. whether the second respondent acted otherwise than properly in the matter of entering into the compromise, need not be considered in this case, because, as stated already,..........all the remaining employers have been impleaded as respondents.3. the applicant challenges the award passed by the first respondent in industrial dispute no. 18 (central) of 1951 which was passed as a result of a compromise between the employers and the workmen. the workmen ' were members of a registered trade union called the cochin thuramuga thozhilali union no. 42, mattancherry, and were represented before the tribunal by the secretary, the second respondent. the employers who were 22 in number were nominee on record, before the tribunal. the compromise was entered into between the employers and the workmen represented by the secretary of their union. a copy of the award impeached is produced in the case and is marked out of the matters adjusted by the compromise and adjudged.....
Judgment:

K. Subramania Ayyar, J

1 This is an application by A. P. Simon, Chellaichen Veettil, Moolamkuzhy. asking the court (a) to issue a writ of certiorari for calling up the records and proceedings of the interim award in industrial dispute No. 18 (Central) of 1951 passed at Ernakulam on 18 December 1951 by opposite party No. 1, viz., the Central Government Industrial Tribunal. Madurai, and for quashing the same, (6) that a writ of mandamus or such other direction may be issued to prohibit opposite parties Nos. 2 to 6 from taking any step for the implementation of the said award and (c) that an interim injunction may be issued to opposite party No. 4, viz., the Employment Exchange Officer, Ernakulam, to restrain him from making any registration and recruitment of stevedore workmen till the disposal of this petition. There were six respondents to the petition when it was filed, they being (1) the Central Government Industrial Tribunal at Madurai, (2) Sri A. S. Kunhunni, Secretary, Cochin Thuramuga Thozhilali Union, Reg. No. 42, Mattancherry, (3) Sri P.A. Majid, Secretary, the Stevedores Association, Fort, Cochin, (4) Sri M. M. Joseph, Government of India Employment Exchange Officer, Ernakulam. (5) Sri Bhaskaran, Labour Officer, Cochin Port, and (6) the Administrative Officer, Cochin Port, Willingdon Island, respectively. Respondent 3 in his counter-affidavit, dated 21 February 1952, stated in paragraph 4 that the Cochin Stevedores Association, whereof he is the Secretary, a voluntary association of some stevedores, without any corporate character and has not been registered under any statutory enactment; and in paragraph 5 that ' out of the 22 employers mentioned in schedule I to the order of reference to the industrial tribunal', 'Nos. 1, 3, 9, 14, 16, 17, 18, 19, 20 and 21 are not and 's have never been members of the association.

2. By order, dated 10 March 1952, this Court directed the petitioner to implead all the employers who are parties to the industrial dispute, to the application for 'writ as also to Order P. No. 9 of 1952, which was another application filed by the petitioner for similar reliefs, impleading only respondents 2 and 3 to this petition. O.P. No. 9 of 1952 has since been dismissed. Pursuant to that order, all the remaining employers have been impleaded as respondents.

3. The applicant challenges the award passed by the first respondent in industrial dispute No. 18 (Central) of 1951 which was passed as a result of a compromise between the employers and the workmen. The workmen ' were members of a registered trade union called the Cochin Thuramuga Thozhilali Union No. 42, Mattancherry, and were represented before the tribunal by the secretary, the second respondent. The employers who were 22 in number were nominee on record, before the tribunal. The compromise was entered into between the employers and the workmen represented by the secretary of their union. A copy of the award impeached is produced in the case and is marked Out of the matters adjusted by the compromise and adjudged accordingly by the tribunal, exception is taken to a few items which are 'mentioned seriatim in the affidavit of the applicant. The other matters com praised in the compromise as also in the award made on its basis are not challenged and must be taken as accepted. The compromise and the award are, therefore, attacked only in part on the merits, though as a consequence thereof the entire award is sought to be set aside.

4. The ground on which the said attack is made, is that the impugned portion of the ' award was passed on the basis of 'certain unauthorised and fraudulent representation' from opposite party (respondent 2 ) with the connivance of opposite party (respondent 3). In other words, no fault or guilt of any kind is levelled against any of the other respondents in the matter of the compromise entered into or the award passed except that the impugned portion in alleged to be bad in law as being in excess of the jurisdiction of the tribunal. There is no ground alleged for the impleading of respondents 4, 5 or 6 in this application.

5. The award was published in the Gazette of India, dated 5 January 1952, Part II, Section 3, at pages 35 - 39 and it is stated that the Government have not issued any order regarding the period of its operation under either of the provisos to Section 19 of the Industrial disputes Act, whereunder, in the absence of such orders the award will be in force for one year from the date of expiry of thirty days from the day of its publication. Its operation will, therefore, continue for a few weeks more and will terminate only on 5 February 1953.

6. I It is not contended on behalf of the petitioner that an award cannot be passed on compromise.

7. The applicant purports to file this application on behalf of himself and some other members of the union. The second respondent, the secretary of the union, repudiates the claim of the applicant to represent any other and asserts that every member of the union except the petitioner was in favour of and had accepted the compromise. The petitioner has not endeavoured to make out his claim to represent any other workmen. In the absence of any other member of the union coming forward to support the petitioner and oppose the adjustment and the award, it has to be taken that none other than the petitioner has a complaint against either the adjustment or the award based thereon.

8. No attempt has been made by the petitioner to prove his allegation as regards the 'unauthorised and fraudulent representation' alleged to have been made by the second respondent. The allegation is vague and no particulars are given. In the absence of particulars an averment of fraud cannot, in law, be regarded as having been made. assuming that the petitioner has a grievance against the second respondent in regard to his conduct in connection with the compromise, this is not the forum before which nor the manner in which it can be ventilated and remedy sought. Assuming all that is stated by the petitioner in his affidavit is correct, it will only amount to an internal or internecine dispute between the .petitioner as a member of the union and the second respondent as its secretary. Such a dispute cannot from the subject-matter of an application for a writ in the High Court (see P. D. Shamdasani v. Central Bank of India, Ltd. --1952 S.C.J. 29). It is not alleged by the petitioner that the second respondent was not at all authorised to enter into a compromise of any description. If he was authorised or otherwise entitled to enter into a compromise, the circumstances of his having exceeded the limit of the authority, if he confines himself within the subject-matter of the compromise and other parties dealt with him as representative of all the members of the union in ignorance of any limitation placed on the authority of the representative, it cannot be contended that the act of the representative is invalid and anything done by him outside the limit of the authority, though relating to the subject-matter in which he was authorised to act, is ultra vires and the adjustment entered into between the employers and the employees under the circumstances would be of no effect. Even in respect of the employers, who are the other party to the compromise the only allegation made in' the affidavit is that the alleged representations were made with their connivance. What that is meant lib convey is not clear. It is significant to site that no collusion or conspiracy between second and third respondents to defeat She interests of the workmen who are members of the union is alleged in the petitioner's affidavit. The applicant is depending upon the fact that in certain items mentioned in the affidavit, the result of the compromise is to secure to the workmen less than what they were already getting. Assuming the allegation is well founded, it does not mean that for that reason the adjustment is bad or prejudicial. When there are very many items of claims and an adjustment is entered into in respect of every one of them giving more in some and less in others, unless one takes into account all the items and finds out the result of the totality of the adjustments, it cannot be said that simply because in some of the items, the adjustment happens to be for a smaller amount than what was already being paid, the adjustment is unfair. It has to be mentioned that the petitioner, in his affidavit, does not even allege or attempt to make out that taken as a whole the adjustment is prejudicial to the workmen. Assuming, for the sake of argument, that the petitioner has some grievance in this regard, inasmuch as he had not even alleged anything against the tribunal, who must have acted on the compromise as a bona fide and proper arrangement, particularly when it was brought about through the mediation of so high an official as the sixth defendant who of all persons is interested in keeping the labour contented, peaceful and prosperous, it is not possible to regard the affidavit and the petition as containing any ground to challenge the award passed as illegal or ultra vires. It is also significant to note that there is not even a whisper in the long affidavit of the applicant against the sixth respondent, the Administrative Officer about whom paragraph 7 of the award states:

The entire credit for settling disputes in the above manner goes to Sri M.S. Venkatraman, the present Administrative Officer of Port of Cochin.

9. The complaint that the award goes beyond the terms .of reference in certain details cannot be accepted. It is true'5 that the scope of the jurisdiction of the tribunal is the scope of the reference ; the award can have regard not merely to 'the actual dispute referred but also to matters relating thereto, and the things complained of are undoubtedly such matters. [See Section 2 of the Act which defines the word 'award ' as,

an interim or final determination by an industrial tribunal of any industrial dispute or of any question relating thereto.

10. If the award is good, as, in my judgment, it is in every respect, the petitioner is not entitled to any relief in these proceedings. Whether the second respondent acted otherwise than properly in the matter of entering into the compromise, need not be considered in this case, because, as stated already, assuming he did exceed the limits, if any, placed upon his action, the other party and the tribunal not being aware or even alleged to have been aware of any limitation on the powers of the second respondent, their act and the result of their acts is good and binding on all alike. The petitioner may, if so advised, seek whatever remedy he may be entitled to against the second respondent for his grievance whose reality will be the subject-matter For consideration in and by the appropriate forum lie-fore which it may be raised. There is, therefore, no ground for interference with the award passed by the tribunal.

11. It appears to me that the, petitioner was really labouring under a difficulty as to how to proceed in the matter. In Order P. No. 9 of 1952 he had impleaded only respondents 2 and 3. He impleaded four more respondents in this application. Latter on, as already stated, by order of the court, others were brought in. It is, therefore, rather a case of the petitioner feeling or fancying that he has a grievance but not knowing where and how to seek redress for it. I cannot and do not regard this application as having been made with any ulterior or mischievous object in view.

12. In the result, I dismiss this petition with costs to the respondents who appeared by separate counsel, except to respondents 2 and 3 as they have been given their costs in % O.P. No. 9 of 1952. Advocate's fee for each of the respondents so appearing is fixed at Rs. 25. (sic) this low fee in view of the fact that the application does not appear to have been made mala fide nor intended to obstruct the working1 of the compromise and the award which was being implemented ever since it was made, especially as the applicant does not appear to have pressed for any interim order restraining the implementation of the award, nor does he even appear to have pressed for a speedy disposal of the, application.

13. I may also mention what I have said already that there is not even a trace of any complaint in the long affidavit of the applicant against respondents 1 and 4 to 6 who must be regarded as merely formal parties to this application.


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