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Pathumma Beevi (P.K.) and ors. Vs. Chief Secretary to Government of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 91 of 1963
Judge
Reported in(1968)ILLJ400Ker
AppellantPathumma Beevi (P.K.) and ors.
RespondentChief Secretary to Government of Kerala and ors.
Cases ReferredRam Swarup v. Shikar Chand
Excerpt:
- - the law is now well settled that where special tribunals are created under an act of legislature for the purpose of determining the rights which are the creation of the act, then the jurisdiction of those tribunals is, unless provided otherwise, exclusive, and the civil courts cannot take cognizance of such matters. but, there are certain exceptions to this rule which are also now equally well settled. in such a case, the failure of the district magistrate to comply with the mandatory provision prescribed in that behalf, would render the order passed by him completely invalid, and a plea that an order has been passed by the district magistrate without complying with the mandatory provision of the act, would be open for examination before a civil court......act, then the jurisdiction of those tribunals is, unless provided otherwise, exclusive, and the civil courts cannot take cognizance of such matters. but, there are certain exceptions to this rule which are also now equally well settled. gajendragadkar, c.j., in ram swarup v. shikar chand : [1966]2scr553 had to consider the question of ouster of jurisdiction of civil courts in terms of section 9 of the civil procedure code in relation to matters covered by sections 3(4) and 16 of the uttar pradesh (temporary) control of rent and eviction act, 1947 (uttar pradesh act 3 of 1947). the scheme of section 3 of the uttar pradesh act 3 of 1947 is that if a landlord wants to bring a suit to eject his tenant, he has to apply to the district magistrate for the necessary permission. the district.....
Judgment:

T.S. Krishnamoorthi Ayyar, J.

1. The plaintiffs are the appellants and the facts giving rise to the second appeal are stated below. The plaintiffs and defendants 4 to 10 are the heirs of Kather Pillai who was carrying on a coir mats and matting business in the name and style of Ponnamveli Coir Works, Shertallai. After his death on 15 August 1955 the business was stopped in view of the disputes which arose among his heirs regarding the partition of his assets. Defendant 3 who is the secretary of the Coir Labour Union, Shertallai Taluk Committee, advanced certain claims on behalf of the workmen in the coir factory. This led to an Industrial dispute between the workmen and the heirs of Kather Pillai. There was, therefore, a reference under Section 10 of the Industrial Disputes Act, 1947, to the Industrial tribunal, Quilon, and the dispute was registered as Industrial Dispute No. 1 of 1957 on its file. Exhibit P. 1 is the award passed by the tribunal on 25 July 1957. Defendant 3 obtained a certificate from the Government on the basis of Ex. P.1 of the realization of the amounts due to the workmen. In execution of the certificate defendant 2 who is the tahsildar of Shertallai, has taken steps against the properties obtained by the plaintiffs from out of the assets of Kather Pillai under the provisions of the Revenue Recovery Act. At the time of the reference and on the date of the passing of Ex. P. 1 according to the plaintiff they were minors, they were not represented in the proceedings before the tribunal by a guardian, they were shown as majors therein and, therefore, prayed for declaration that Ex. P. 1 is void against them and in execution of the same their properties could not be proceeded against.

2. Defendants 1 to 3 contest the suit. Issues (1) and (2) deal with the question of the maintainability of the suit and the jurisdiction of the Court to try the suit. The Courts below decided only these issues and did not enter any findings on the remaining Issues.

3. The contention regarding the maintainability of the suit and the jurisdiction of the Court to try the same is based on Section 17(2) of the Industrial disputes Act, 1947, which runs thus:

Subject to the provisions of Section 17A the award published under Sub-section (1) shall be final end shall not be called in question by any Court in any manner whatsoever.

4. This provision was Introduced by the amendment Act 36 of 1956. According to the defendants Section 17(2) operates as an absolute bar against the Institution of any suit attacking the validity of an award passed under the Industrial Disputes Act, 1947.

5. Section 9 of the Civil Procedure Code provides that the

Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

The law is now well settled that where special tribunals are created under an Act of legislature for the purpose of determining the rights which are the creation of the Act, then the jurisdiction of those tribunals is, unless provided otherwise, exclusive, and the civil Courts cannot take cognizance of such matters. But, there are certain exceptions to this rule which are also now equally well settled. Gajendragadkar, C.J., in Ram Swarup v. Shikar Chand : [1966]2SCR553 had to consider the question of ouster of jurisdiction of civil Courts in terms of Section 9 of the Civil Procedure Code in relation to matters covered by Sections 3(4) and 16 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 (Uttar Pradesh Act 3 of 1947). The scheme of Section 3 of the Uttar Pradesh Act 3 of 1947 is that If a landlord wants to bring a suit to eject his tenant, he has to apply to the District Magistrate for the necessary permission. The District Magistrate may grant or refuse to grant permission on the application of landlord. The party aggrieved by the order can apply before the Commissioner to revise the order and the Commissioner has to deal with the revision petition under Section 3(3) of the Act. The order passed by the Commissioner is made final under Sub-section (4) of Section 3 of the Act, subject to any order passed by the State Government under Section 7F of the Act. Similarly Section 18 of the Uttar Pradesh Act 3 of 1947 provides that no order made under the Act by the State Government or the District Magistrate, shall be called in question in any Court. The learned Chief Justice observed:

One of the points which is often treated as relevant in dealing with the question about the exclusion of civil Court's Jurisdiction is whether the special statute which, it is urged, excludes such jurisdiction, has need clear and unamb guous words indicating that intention. Another test which is applied is: Does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions Applying these two tests it does appear that the words used in Sections 3(4) and 16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall not be called in question in any Court. This is an express provision excluding tha civil Courts' jurisdiction,. Section 3(4) does not expressly exclude the jurisdiction of the civil Courts, but, in the context, the Inference that the civil Courts' jurisdiction is intended to be excluded, appears to be inescapable.... In our opinion, the bar created by the relevant provisions of the Act excluding the Jurisdiction of the civil Courts cannot operate in cases where the plea raised before the civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity. Take, for instance, the case of an order purported to have been passed by a District Magistrate who is not a District Magistrate in law. If it is shown by a party Impeaching the validity of the order in a civil Court that the order was passed by a person who was not a District Magistrate, the order in law would be a nullity, and such a plea cannot be ruled out on the ground of the exclusion of the jurisdiction of the civil Court. Similarly, If an order granting permission to a landlord is passed by a District Magistrate of one district when the property in question is situated in another district out-side his jurisdiction, a party would be entitled to urge before a civil Court that the permission purported to have been granted by the District Magistrate is wholly Invalid and a nullity in law. Let as take another case to Illustrate the position. If Section 3 had provided that before a District Magistrate grants permission to the landlord to sue his tenant he shall issue notice to the tenant and give him an opportunity to represent his case before the application of the landlord is dealt with on the merits; and in the face of such a statutory provision, the District Magistrate grants permission ex parte without issuing notice to the tenant. In such a case, the failure of the District Magistrate to comply with the mandatory provision prescribed in that behalf, would render the order passed by him completely invalid, and a plea that an order has been passed by the District Magistrate without complying with the mandatory provision of the Act, would be open for examination before a civil Court. Likewise, in the absence of such a statutory provision, If it is held that the proceedings before the appropriate authorities contemplated by Section 3 are in the nature of Quasi-Judicial proceedings and they meet be tried to accordance with the principles of natural Justice, and it is shown that in a given case an order has been passed without notice to the party affected by such order it would be open to the said party to contend that an order passed in violation of the principles of natural justice is a nullity and its existence should be ignored by the civil Court. Such a plea cannot, in our opinion be excluded by reason of the provisions contained in Sections 3(4) and 10 of the Act.

* * *We ought to point out that the provisions contained in Sections 3(4) and 16 undoubtedly raise a bar against pleas which challenge tha correctness or propriety of the orders in question. The merits of the order are concluded by the decision of the appropriate authorities under the Act and they cannot be agitated in a civil Court. But where a plea seeks to prove that the impugned order is a nullity in the true legal sense, that is a plea which does not come within the mischief of the bar created by Sections 3(4) and 36 of the Act.

6. The complaint by the appellants is that both on the date of the reference of the dispute and at the time of the passing of the award they were minors. The learned Counsel for the respondents brought to our notice that the plaintiffs were really not minors and the award is binding upon them. We are not called upon to pronounce on this issue because the Courts below have not entered any finding on this question. The Courts have proceeded to dispose of the two issues only assuming the plaintiffs to be minors on the relevant dates. If the plaintiffs were really minors on the date of Ex P.1, It will not be binding on them as they were not represented by a guardian in the proceedings which culminated in Ex. P. 1 end as this plaintiffs cannot be considered to be parties to the Industrial dispute within the meaning of Section 38 of the Industrial Disputes Act, 1947. The passing of Ex. P. 1 against the plaintiffs under the circumstances pleaded by them is in violation of the fundamental principles of natural justice. In these circumstances, the award will be a nullity and a certificate obtained under Section 33C(1) of the Industrial Disputes Act, 1947, based on Ex. P. 1 can have no binding effect on the plaintiffs in the suit and is a nullity. In this view, the suit is maintainable and the decrees of the Courts below cannot be sustained.

7. We therefore not aside the decrees and judgments of the Courts below and remand the suit to the trial Court for fresh disposal in the light of the observation made above. The question whether the plaintiffs were minors when Es. P. 1 was passed will have also to be considered. The parties are entitled to adduce any fresh evidence which they want. The costs incurred till now will be costs in the cause and will be provided for in the fresh decree to be passed. The Court for paid on the appeal memorandum will be refunded to the appellant's advocate.


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