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Malabar Products Ltd. Vs. Industrial Tribunal, Ernakulam - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberO.P. No. 211 of 1957
Judge
Reported inAIR1958Ker192
ActsConstitution of India - Articles 226 and 227
AppellantMalabar Products Ltd.
Respondentindustrial Tribunal, Ernakulam
Appellant Advocate V.K.K. Menon and; C.S. Padmanabha Iyer, Advs.
Respondent Advocate C.M. Kuruvilla, Govt. Pleader
DispositionPetition dismissed
Cases ReferredT. C. v. T. Nagappa
Excerpt:
.....of constitution of india - petition under articles 226 and 227 filed challenging award passed by industrial tribunal - through award reinstatement of employees discharged from service by petitioner directed - after considering facts and circumstances it found that matter was considered on merits by tribunal - in such cases court has no jurisdiction to issue writ under articles 226 and 227 - petition dismissed and order of tribunal upheld. - - it is well settled that the decision of the tribunal on a question of fact which it has jurisdiction to determine is not liable to bit questioned in proceedings under article 226 of the constitution unless at the least it is shown to be fully unsupported by evidence. 8. the invocation of article 227 as well does not widen the circumstances in..........and prays that this court should 'call for the records from the 1st respondent tribunal, quash the interim award passed by the tribunal in industrial dispute no. 73/54 published in gazette no. 14 dated 5th april 1955 (ext. a) and the award in industrial dispute no. 55/1956 published in the gazette no. 13 dated 26th march 1957 (ext. b), andissue such orders and directions as deemed fit and proper in the circumstances of the case.'2. the issues referred for adjudication were:'(1) whether the discharge of the workers mentioned in the schedule is justifiable? if not, to what reliefs are they entitled to? (2) are the workers entitled for any compensation for the period from 17-11-1954.' 3. the discharge of the workmen on 17-11-1954 was apparently during the pendency of conciliation.....
Judgment:

M.S. Menon, J.

1. The petitioner is the Malabar Products Ltd., Kandassankadavu, represented by itsGeneral Manager, T. R. Devassi, and the respondents are the Industrial Tribunal No. 2, Ernakulam, and the Kandassankadavu Tile Factories Workers Union, Kandassankadavu,represented by its Secretary. The petition invokes the jurisdiction of this Court under Arts. 226 and 227 of the Constitution and prays that this Court should

'call for the records from the 1st respondent Tribunal, quash the interim award passed by the Tribunal in Industrial Dispute No. 73/54 published in Gazette No. 14 dated 5th April 1955 (Ext. A) and the Award in Industrial Dispute No. 55/1956 published in the Gazette No. 13 dated 26th March 1957 (Ext. B), andissue such orders and directions as deemed fit and proper in the circumstances of the case.'

2. The issues referred for adjudication were:

'(1) Whether the discharge of the workers mentioned in the schedule is justifiable? If not, to what reliefs are they entitled to?

(2) Are the workers entitled for any compensation for the period from 17-11-1954.'

3. The discharge of the workmen on 17-11-1954 was apparently during the pendency of conciliation proceedings which culminated in the reference of the two issues mentioned above for adjudication under Section 10(1)(c) of the Industrial Disputes Act, 1947 (Central Act 14 of 1947). Section 33 of the Act) provides :

'During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall-

(a) alter, to the prejudice of the workmenconcerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or

(b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute,save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be;'

and a prayer was made before the Tribunalto the effect that reinstatement should be ordered forthwith as a measure of interim relief with-out prejudice to the trial of the two issues specifically referred for adjudication. The Tribunal held that the discharge of the workmen (15 workmen on 27-11-1954 and 4 workmen on 30-11-1954) was during the pendency of conciliation proceedings, that the said discharge was in contravention of Section 33 of the Industrial Disputes Act, 1947, and ordered as follows:

'The 19 workers whose names are mentioned in the order of reference should be reinstated within two weeks from the date of publication of this award under Section 17 of the Act with their back wages from 27-11-1954 and 30-11-1954, If they are not reinstated within 2 weeks from the date of publication of the award the workers can claim monthly wages at the rate of Rs. 45 per mensem till they arc reinstated. To calculate arrears of wages from the dates of discharge till the due date of reinstatement, the average wage each one was getting in the month of October should be taken into consideration.'

and: 'This interim award will be in effect till the final award is passed or otherwise decided, in this adjudication. If the Union attempts to protract the proceeding the management will have right to move the Tribunal with a petition for appropriate relief.'

4. The interim award (Ext. A) has since merged in the final award (Ext. B) and it is unnecessary to consider the question as to whether the Tribunal was right in granting interim Belief on the basis of a violation of Section 33 prior to the order of reference and regarding which no specific reference to the Tribunal was made by the Government.

5. In the final award (Ext. B) the Industrial Tribunal discussed the facts of the case in paragraphs 17, 18 and 19; and said in paragraph 20 ;

'In my opinion, therefore the discharge was unjustified and wrongful. In view of that I order to reinstate all workmen with continuity of service and back wages'; and in paragraph 22 ; 'All the workmen will be paid their full back wages from 17-11-1954 till 16-4-1955 when they were reinstated by the interim award. In calculating the arrears of wages and their allowances, if any, the wage and allowance rates prevailing in the month previous to the order of discharge will be sole basis of the calculation. The Management will pay all these arrears within 15 days from the date when this award becomes enforceable. No costs.'

6. The Tribunal certainly had jurisdiction to come to the conclusion that it did and pass the order it has passed. No jurisdictional defect or error apparent on the face of the record exists and in the light of the judicial decisions and dicta on the subject we must hold that the jurisdiction of this Court under Article 226 of the Constitution is not attracted. The distinction between errors going to jurisdiction and errors not going to jurisdiction, and, between patent and latent errors of law may have worn very thin over the years but it is still there and has to be respected.

7. In Dharangadhra Chemical Works Ltd. v. State of Saurashtra, (S)' AIR 1957, SC 264 (A), Bhagwati, J., said:

'It is well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to bit questioned in proceedings under Article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.'

There is no lack of evidence in this case to support the conclusion reached by the Tribunal.

8. The invocation of Article 227 as well does not widen the circumstances in which a writ of certiorari will issue. It is true that the superintendence under Article 227 is both judicial and administrative but;

'This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Gal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors'. Waryarn Singh v. Amarnath, AIR 1954 SC 215 (C).

9. The distinction between Articles 226 and 227 was thus stated in Hari Vishnu v. Ahmad Ishaque, (S) AIR 1955 SC 233 (D).

'While in a 'certiorari' under Article 226 the High Court can only annul the decision of the Tribunal, it can, 'under Article 227, do that, and also issue further directions in the matter.'

10. In D. N. Banerji v. P. R. Mukherjee, AIR 1953 SC 58 (E), the Supreme Court dealt with a case in which both the Articles 226 and 227 had been invoked :

'Whether on the facts of a particular case the dismissal of an employee was wrongful or justified is a question primarily for the Tribunal to decide, and here the Tribunal held that the dismissals were clear cases of victimisation and hence wrongful. Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere.'

11. The principles that should guide the issue of a writ of certiorari in this country have been clearly formulated in Basappa, T. C. v. T. Nagappa, AIR 1954 SC 440 (F), and it is normally unnecessary to go beyond that decision. Judged by the principles therein laid down, we entertain no doubt that this petition should fail.

12. The petition is hereby dismissed. No costs.


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