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Thomas and ors. Vs. Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 455, 501 and 574 of 1958
Judge
Reported inAIR1961Ker265; (1960)IILLJ523Ker; (1960)IILLJ523Ker
ActsConstitution of India - Article 226; Industrial Disputes Act, 1947 - Sections 12
AppellantThomas and ors.
Respondentindustrial Tribunal and ors.
Appellant Advocate K.S. Sebastian, Adv.
Respondent Advocate Govt Pleader, for Respondents 1 and 6,; P. Govindan Nair,;
Cases ReferredState of Bihar v. Ganguli
Excerpt:
.....been promoted to the place of the petitioner and the state of kerala, and avers the award by the labour officer as well as the award by the first respondent to be ultra vires, illegal and liable to he vacated in exercise of the powers under article 226'.3. the writ petitioner in o. the aforesaid order is claimed to have resulted in the reduction of rank, to have affected the petitioner's pay, allowances, as well as further prospects, and to have been caused by the award by the labour officer, alwaye, and not due to the voluntary action on the part of the management. it is obvious that complaints by the aforesaid employees against the awards by the labour tribunal as well as against the report by the labour officer are common and so their averments that the actions by the second..........claims the aforesaid reversion to have been caused by the unlawful interference of the district labourofficer through his award of march 14, '1958, and the employer to have acted on the basis of certain findings in the aforesaid award, which has been made in consequence of the earlier award mentioned already.this writ petition has been filed against the industrial tribunal, the employer, the district labour officer, the president of the f. a. c. t. employees' association, k. v. john who hud been promoted to the place of the petitioner and the state of kerala, and avers the award by the labour officer as well as the award by the first respondent to be ultra vires, illegal and liable to he vacated in exercise of the powers under article 226'.3. the writ petitioner in o. p. 574 of 1958.....
Judgment:

Ansari, C.J.

1. These three petitions are under Article 226 and seek to vary the orders by the petitioners'' employer. The petitioner in O. P. 455 of 1958 has been the Manager of the Fertilisers & Chemicals, Travancore Limited's branch office at Cochin. He claims to have been promoted to the post on September 1, 19.57, in view of his efficiency, integrity and seniority in service, and to be then drawing the salary of Rs. 300 in the scale of Rs. 300-20-400 per mensem excluding allowances.

The cause for filing the writ petition is that the employer passed on July 12, 1958 an order, whereby as per the award of March 14, 1958. by the District Labour Officer, Alwaye, the petitioner was reverted with effect from July 16, 1958, in his original position of the section head in the purchase department. The order further directed handing over charge to one Krishnan as mentioned in the, award; and this Krishnan has been implead-ed as the 5th respondent in the writ petition. The other respondents are the Managing Agents of the employer Company, the Industrial Tribunal, Ernakulam, the District Labour Officer, Alwaye, the President of the F A. C. T. Employees Association, Alwaye and the State of Kerala.

The award on whose basis the employer has Issued the order is in consequence of another award that has been given on January 30, 1958, by the Industrial Tribunal, made the first respondent, and published in the Kerala State Gazette ot February 25, 1958. Both the aforesaid awards are claimed by the petitioner to be ultra vires, illegal and to have coereed the employer into issuing the order of depremotion, and they should be vacated in exercise of the powers under Article 226.

2 The petitioner in O. P. 501/58 had been promoted from November 1, 1957, as an Assistant Foreman in the Ammonia Plant of the same Company, and was drawing as salary Rs. 215 plus Rs. 46 on a scale of Rs. 200-320, but on May 9, 1958 has been reverted as Senior Operator, and one K. V. John promoted in his place. The petitioner claims the aforesaid reversion to have been caused by the unlawful interference of the District LabourOfficer through his award of March 14, '1958, and the employer to have acted on the basis of certain findings in the aforesaid award, which has been made in consequence of the earlier award mentioned already.

This writ petition has been filed against the Industrial Tribunal, the Employer, the District Labour Officer, the President of the F. A. C. T. Employees' Association, K. V. John who hud been promoted to the place of the petitioner and the State of Kerala, and avers the award by the Labour Officer as well as the award by the first respondent to be ultra vires, illegal and liable to he vacated in exercise of the powers under Article 226'.

3. The writ petitioner in O. P. 574 of 1958 states that he was acting as an Assistant foreman in the Ammonia Plant of the Fertilisers and Chemicals Travancore Ltd., had been so acting for six months from November 8, 1958, and had been reverted, one Philip John, who was working as Senior Operator till then under the writ petitioner, being appointed in the place. The aforesaid order is claimed to have resulted in the reduction of rank, to have affected the petitioner's pay, allowances, as well as further prospects, and to have been caused by the award by the Labour Officer, Alwaye, and not due to the voluntary action on the part of the Management.

This petition also treats the award as part of the earlier award by the Industrial Tribunal that was published in the Gazette of February 25, 1958, and seeks to vacate both on grounds of their being ultra vires, illegal and without jurisdiction. The petition further avers the action by the employer to be merely consequential and liable to fall with the award. There are six respondents to this petition, five of whom having been already impleaded in the two petitions mentioned above, and the fifth being the employee, who has been substituted for the writ petitioner.

It is obvious that complaints by the aforesaid employees against the awards by the Labour Tribunal as well as against the report by the Labour Officer are common and so their averments that the actions by the second respondent and the orders against each of the three petitioners are mere consequences of the illegal awards, which are beyond the powers conferred by the Industrial Disputes Act No. XIV of 1947. It is equally clear that should immediate orders against the petitioners be treated as those of the private individual, the prayer for a writ of certiorari would fail; for it is well-settled that neither ccrtiorari nor prohibition would be granted to vacate orders of private tribunals,

4. Now that has been held by a learned Judge of this Court in Krishnankutty Nair v. Industrial Tribunal Trivandrum, 1957 Ker LT 619; (AIR I960 Kerala 31j and that decision rests on R. v. Disputes Committee of the National Joint Council for the Craft of Dental Technicians, 1953-1 All E. R. 327, With that decision we respectfully agree that neither certiorari nor prohibition would be issued against private individuals. Therefore the orders by the petitioners' employer would notbe vacated by issuance of either of the aforesaid writs.

But the petitioners claim that the orders by their employer are bare consequences of the awards purporting to be under the Industrial Disputes Act, XIV of 1947, hereinafter referred to as the Act, and they are ultra vires, which awards should be vacated by certiorari. It follows that the crucial question arising for decision in these petitions is how far the award, or the report by the Labour Officer can he treated as having been made in performance of powers under the Act, and fcr this purpose we would state some more facts.

5. It appears that some disputes had arisen between Messrs. Fertilisers & Chemicals Travancore Ltd., and their workmen, and the then Government had referred twelve questions to the Industrial Tribunal, Ernakulam, out of which No. 12 reads as follows:

'12. Should the promotions of employees based on the principle suggested by the Employees' Association in their memorandum to the management dated 9-1-1956 be accepted.'

6. The Tribunal did not adjudicate on any one of the aforesaid questions, for its award purports to have been passed on a deed of compromise between the parties to the disputes. The concluding part of the award reads as follows:

'The parties have filed to-day in court a deed of settlement embodying all the terms of settlement, which is given below as annexure. Messrs. K. V. Var-ghese and S. C. S. Menon have signed in the deed representing the management and the union respectively. I pass the award on the terms and conditions contained in it and the same shall become enforceable after thirty days of its publication in the Government Gazette.'

7. The deed has been made the annexure to the award and its part, which is relevant for purposes of this decision, is the sixth paragraph that runs as follows:--

'The appointments and promotions made by the Management after 11-6-1956 will be examined by the District Labour Officer, Alwaye, in such cases where such examination is called for.

8. On March 14, 1958 the Labour Officer, Alwaye, made a report, in which he has held that the exercise of discretion by the management in the matter of promotions of the petitioners in O. Ps. 455 and 501 were against the accepted principles and must be rectified. The same Officer has further recommended that justice has not been meted out to those employees, who have been substituted in the places of the aforesaid writ petitioners.

Though there is no specific reference in the aforesaid report about the petitioner in O. P. 574 of 1958, yet the management has treated his case to be governed by the report of the Labour Offcer as well, and have acted as though the report had directed his being depromoted. The learned Advocate of the writ petitioners argued that the several methods for adjusting industrial disputes under the Act are statutory, and every adjustment in order to be legally binding should strictly comply with the statutory requirements.

He urges that as neither the Industrial Tribunal had decided the dispute referred, nor the Labour Officer had exercised any jurisdiction vested in him under the Act, their actions are ultra vires. He has further argued that as his clients are barred under Section 37 of the Act from seeking proper redress, they should be given the benefit of Article 226, and the award as well as the reports be vacated.

The last argument is that should the report by the Labour Officer be treated as infra vires, it violates principles of natural justice inasmuch as neither of the three petitioners had been heard before conclusions were arrived at against them. In these petitions we are concerned only with two methods for adjusting industrial disputes under the Act, because we have to determine how far the award and the report can be treated as having been made in proper exercise of the statutory duties of the Tribunal and the Labour Officer.

As regards the award, the writ petitioners have urged that no question had been referred to the Tribunal so as to cover what the Labour Officer been directed by the third to do and therefore that part of the award was void. It was further argued that no consent can confer jurisdiction that the Tribunal cannot legally possess. Should we accept these arguments, the part of the award that confers jurisdiction on the Labour Officer to make the report would be without jurisdiction, and the whole structure on which the petitioners been de-promoted would fall.

At one stage, we entertained doubts as to whether the award by the Industrial Tribunal in these cases would come within the meaning of the Act, though we entertained no doubt that the twelfth question, referred to the Tribunal had vested it with the jurisdiction of deciding the issue referred to the Labour Officer. The learned advocate for the Tribunal has drawn our attention to the following observation of the Supreme Court in State of Bihar v. Ganguli 1958-2 Lab. LJ 634 at p. 640: (AIR 1958 SC 1018 at p. 1023), where Gajendragadkar J. says:

'There can, therefore, be no doubt that if an industrial dispute before a tribunal is amicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties.

9. It has been rightly argued that in view of the afores a id observation, any doubt about the word 'award' not being wide enough to include what be settled by assent of the parties to the dispute should not be entertained, and it follows that if parties to the dispute consent, the Tribunal can make award in terms of the agreement.

It is equally clear that the basis, on which such an award binds, would not be adjudication by an authority, properly vested with powers, but the consent of the parties, so that should the award direct further steps, those would also rest on consent. Therefore the compromise directing somebody and the latter doing something would become acts of a domestic tribunal.

10. The question, therefore, that next arises is what are the duties of a conciliation officer, and whether what the Officer had done on March 14, 1958, can be held as covered by the Act. The powers of such an officer are given by Section 11(4) and his duties are contained in Section 12 that reads as follows:

'12. (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall hold conciliation proceedings in the prescribed manner.

(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute,

(3) If a settlement of the dispute or of any ct the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.

(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances and the reasons On account of which, in his opinion, a settlement could not be arrived at.

(5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case of reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.

(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government:

Provided that the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute'.

11. Under the aforesaid section therefore, the officer has to bring about settlement in a fair and amicable way, and where such settlement is reached to report to the Government. Even when no settlement be arrived at the officer has to report. The duty to bring about the settlement means that the parties to the adjustment should be informed and should consent. It further follows that by such a settlement the rights of strangers cannot be affected unless the strangers be also the consenting parties.

In such circumstances we think the party adversely affected must have notice of the terms of the settlement, and the failure to give notice and obtain consent would make the particular report no settlement at all. It is equally clear thatno award by the Industrial Tribunal can authorise the conciliating officer to reach settlement otherwise, and in any case the provision in the annexure does not appear to us to have authorised the officer to adversely affect a party without notice. It is also not averred before us that the report was given after hearing the writ petitioners in O.Ps. 455 and 501 of 1958. Therefore the parts of the report, which adversely affect these two petitioners, are legally void, and not to be in discharge of any statutory duty.

12. That apart we feel that the particular paragraph in the annexure does not direct the Labour Officer to do something which he is under the statute bound to do. We think it confers a different jurisdiction on him; for it authorises him by consent of the parties to adjudicate which he is under no duty to do. In these circumstances the officer becomes a domestic tribunal and that appears to us to be a fair reading of the paragraph. But even domestic tribunal is under obligation to observe principles of natural justice, and in this view we are fortified by the following para:

'Where a domestic tribunal exercising quasijudicial functions disregards any of the principles of natural justice, the court will interfere to protect the party aggrieved. Where the jurisdiction or powers of a domestic tribunal depend on matters of law or of part law and part fact, such as for instance the construction of documents or rules of the body the court will exercise control and make the declarations and order injunctions accordingly for no tribunal by a misinterpretation of the law which gives it jurisdiction can purport to exercise a greater jurisdiction which it does not in fact possess.' (Halsbury's Laws of England, 3rd Edn. Vol. IX, pp. 580 & 581).

13. It follows that absence of notice to the two writ petitioners is fatal to the legality of the parts of the report by the Labour Officer, which are against them, and on which the orders o depromotion have been passed in the case.

14. The learned counsel for the writ petitioners has urged that he should be given a declaration of the report by the Labour Officer being ultra vires, though a writ of certiorari, prohibition or mandamus could not bo issued in the case, for otherwise his clients would be without any remedy. We think the declaration about the Labour Officer's report so far as the two petitioners are concerned being legally void would serve the purpose. Any declaration cannot be given about the petitioners' being still legally entitled to the positions they earlier occupied, because we do rot know what are the terms of their employment.

Such questions can best be investigated in proceedings other than those under Article 226. The writ petitions, therefore, fail on the short ground that neither certiorari. nor prohibition can be issued, as their employer is a private institution, but the petitioners in O. Ps. 455 and 574 are given the declaration that the report by the Labour Officer against them is not operative as the relevant parts of the report have been made without hearing the petitioners or affording them reasonable opportunity. The third petitioner cannot begiven any such declaration, for his name is not mentioned in the report

15. Subject to the aforesaid declaration, thewrit petitions are dismissed and having regard tothe circumstances of the case, the parties will beartheir costs.


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