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Sayani Talkies Vs. Radha - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Arbitration
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1718 of 1978
Judge
Reported in(1983)ILLJ380Mad
ActsIndustrial Disputes Act, 1947 - Sections 10A(5) and 33C(2)
AppellantSayani Talkies
RespondentRadha
Cases ReferredR. K. Steels v. Their Workmen
Excerpt:
arbitration - adjudication - sections 10a (5) and 33c (2) of industrial disputes act, 1947 - whether award directing management to reinstate employee and to pay half of his back wages should be enforced under industrial disputes act or under arbitration act - revision brought by management form order of city civil court in which decree in terms of award passed - award regarded only as an award passed under industrial disputes act enforceable as such under special procedure laid down under arbitration act - city civil court had no jurisdiction to pass decree on award - when an act not voidable but void it is nullity and can be disregarded and impeached in any proceedings before any court or tribunal whenever it is relied upon - previous order of labour court dismissing in limine -..........duly nominated as the arbitrator, entered into the arbitration and gave his decision. under his award, the management were directed to reinstate the employee and also to pay half his back wages. 2. twelve years have passed since then. the award still remains on paper. the parties are all the while engaged in an interminable procedural wrangle as to what kind of award it is, whether it should be enforced under the exclusive provisions of the industrial disputes act or whether it may be dealt with under the general provision of the arbitration act. 3. in this revision the controversy is still at large. the revision is brought by the management form an order of the city civil court, madras, in which a decree in terms of the award has been passed. 4. mr. govindaswami iyer, the.....
Judgment:

1. The petitioner is in management of a cinema house. The respondent was an office boy in that theatre. One day in 1969 the Management dispensed with his services. He raised an industrial dispute about it. But, this dispute was not fought to a finish in industrial adjudication. Instead, even during conciliation proceedings, the parties agreed to refer the matter to arbitration. They called it a 'formal arbitration'. The Labour Commissioner or his nominee was to be the arbitrator and he was to go into the non-employment of the employee and also the question of consequential reliefs, if any. Following this agreement, the Dy. Commissioner of Labour who was duly nominated as the arbitrator, entered into the arbitration and gave his decision. Under his award, the management were directed to reinstate the employee and also to pay half his back wages.

2. Twelve years have passed since then. The award still remains on paper. The parties are all the while engaged in an interminable procedural wrangle as to what kind of award it is, whether it should be enforced under the exclusive provisions of the Industrial Disputes Act or whether it may be dealt with under the general provision of the Arbitration Act.

3. In this revision the controversy is still at large. The revision is brought by the Management form an order of the City Civil Court, Madras, in which a decree in terms of the award has been passed.

4. Mr. Govindaswami Iyer, the Management's learned counsel urges that the City Civil Court, Madras has no jurisdiction to pass a decree. He submits that the Arbitration Act does not apply to this case. The award, learned counsel recalls, was made by the Dy. Commissioner of Labour in proceedings under the Industrial Disputes Act. Learned Counsel proceeds to submit that even though the arbitration was 'informal' in the sense that it did not fully comply with the requirements of the Industrial Disputes Act, the award, nevertheless, is enforceable only under S. 33C(2) of the Industrial Disputes Act. It follows according to learned counsel that the procedure under the Arbitration Act for passing a decree in terms of the award does not lie. In support of these contentions, learned counsel relied on a recent Full Bench decision of this Court in R. K. Steels v. Their Workmen, 1977 I L.L.J.382

5. I think I must accept without question the submissions of learned counsel. They are based out and out on the Full Bench whose decision I am bound to follow and apply to this case. It may be that both the parties, and even the arbitrator, had treated the arbitration as 'informal' and, an consequence, the requirements, of the Industrial Disputes Act were not complied with to the letter. Even so, under the law said down by the Full Bench, the award must be regarded only as an award passed under the Industrial Disputes Act, enforceable as such under the special to the procedure laid down under the Arbitration Act. It follows, therefore, that the City Civil Court had no jurisdiction to pass a decree on the award.

6. Mr. Krishnan, for the employer, did not dispute the position that under the Full Bench ruling, the City Civil Court, Madras, could not pass a decree in terms of the award in this case. He, however, raised an argument based on the doctrine of estoppel. He referred to the fact that the management themselves had earlier taken proceedings under the Arbitration Act in respect of this very award. He referred to two of them instituted by the management in the City Civil Court, Madras, one to file award and the other to set it aside. Learned Counsel also referred to the fact that in an appeal to this Court which arose in the later of the two proceedings, Varadarajan, J., had upheld their validity under the Arbitration Act, expressing the view that the award was not governed by S. 10A(5) of the Industrial Disputes Act. The point urged by Mr. Krishnan is that the management, in the earlier proceedings, having taken up the position that the award was enforceable only under the Arbitration Act, and not under the Industrial Disputes Act, was now estopped from taking up quite the opposite position before this Court in this revision. Employing a familier cliche, learned counsel said that the Management should not be permitted to 'approbate and reprobate'.

7. I must reject this argument of estoppel as untenable. For one thing, the management is not alone in taking up inconsistent attitudes in all these proceedings. The employee himself has not been taking a consistent stand throughout, but shifting position according to the expediency of the moment. Although he now swears by the Arbitration Act, at all earlier stages of the controversy he took one preliminary objection after another against the management's proceedings In City Civil Court. He even took a further positive step to move the Labour Court under S. 33C(2) of the Industrial Disputes Act, as the only appropriate forum, to enforce the same by reducing its benefits in terms of money for purposes of execution. In these events, therefore, it seems to me that it is not open to the employee to raise a plea of estoppel. This doctrine is, after all, based on Equity whose basic principle is that it is not a one-way traffic. This apart, estoppel, as a rule of Equity is a rule of procedure. All it does is to prevent a part from blowing hot and cold. It cannot be a determining factor in the matter of jurisdiction of any Court, Tribunal or authority. Jurisdiction really goes to the root of the decision-making body's competence to deal with controversy whereas the doctrine of estoppel merely deals with the procedural alternative of either allowing or shutting out a party from having his way, whatever be the forum. Moreover where jurisdiction is conferred or governed by a statute, it is a familiar axiom of our jurisprudence that there is no estoppel against the statute. In other words estoppel has no place where the statute either, creates a jurisdiction or bars a jurisdiction. In this case, Mr. Krishnan concedes that in view of S. 10A(5) of the Act and Full Bench decision the City Civil Court has no jurisdiction to make an order passing the award into a decree. It follows that the order must be set aside as null and void, estoppel or no estoppel.

8. Mr. Krishnan then pleaded that since the award cannot be passed into a decree under the Arbitration Act, the management cannot very well stand in the way of the employee seeking to enforce the award under the provisions of the Industrial Disputes Act. Mr. Govindaswami Iyer, learned counsel for the management, could not dispute this proposition. He, however, drew attention to the fact that the employee in this case had already once approached the Labour Court under S. 33C(2) of the Industrial Disputes Act for the requisite relief. While conceding that this view was the only remedy available for the employee, Mr. Govindaswamy Iyer, however, made mention of the fact that the Labour Court has dismissed the employee's application under S. 33C(2) as incompetent by an order, dated 28th August, 1973. What is more, the decision of the Labour Court was allowed to become final by the employee. He did not challenge it either in a writ petition or in any other appropriate proceedings. In these events according to Mr. Govindaswamy Iyer no question now arises of the employee seeking to obtain redress from the Labour Court under S. 33C(2) of the Industrial Disputes Act.

9. The implication in the submissions made by Mr. Govindaswami Iyer seems to be that if today the employee were to approach the Labour Court with an application under S. 33C(2) of the Industrial Disputes Act, that would be hit by the principle of res judicata in view of the employee's earlier application having been dismissed by the Labour Court by an order which has become final between the parties. So understood the contention seems to me to be bereft of any legal force. Res judicata in my judgment, can seldom be a plea in anticipation. We are not today considering the position of a second application filed by the employee under S. 33C(2) and hence no argument can be advanced on the basis of res judicata. At this moment of time, all we have on hand is the order of the Labour Court rejecting, in limine, the employee's application under S. 33C(2) as incompetent. Our present concern must therefore, be to consider whether this order can stand in the way of the employee enforcing the award passed by the Dy. Commissioner in his favour. The answer, in my judgment, must be in the negative. As earlier mentioned, the Full Bench ruling of this Court is a clear authority for the position that an award of the present kind has only to be enforced by the Labour Court under S. 33C(2) of the Industrial Disputes Act. Judged by this principle, the order of the Labour Court refusing to entertain the employee's application must be held to be nullity. Just as usurpation of a jurisdiction which is not there is a nullity and can be ignored, so, too, the law would ignore an order declining to exercise a power which is in the nature of a duty. The Labour Court's jurisdiction under S. 33C(2) is of such nature, when the power is properly invoked it becomes the Labour Court's statutory duty to exercise it. Refusal by this Tribunal to discharge its duty at some earlier point of time cannot, therefore, prevent the party from invoking it again if the order of refusal is itself a nullity. As observed by .... Amnon Rubinstein in his work, 'Jurisdiction and Illegality' :

'When an act is not merely voidable but is void, it is a nullity and can be disregarded and impeached in any proceedings, before any Court or Tribunal and whenever it is relied upon.'

I am therefore, of the view that the previous order of the Labour Court dismissing in limine the employee's application under S. 33C(2) of the Industrial Disputes Act cannot stand in the way of his pursuing the same remedy to obtain the fruits of the award.

10. The result of the above discussion is that while the order of the City Civil court passing the award into a decree is set aside, there will at the same time be a declaration that the order of the Labour Court, Madras, dated 28th August, 1973 in O.P. 636 of 1971 is a nullity. Although this order of the Labour Court is not strictly before me in the present proceedings, I have no doubt about the sweep and extent of the revisional power of this Court when it comes to a matter of doing complete justice between the parties. I, therefore, direct the Labour court to re-post O.P. 636 of 1971, for hearing after due notice to the parties and dispose of it afresh on the merits and in accordance with the law. This seems to me to be a proper direction to make in view of the quandary in which the parties find themselves at the end of a decade or more of desultory and wasteful litigation. In all the proceedings so far between the management and the employee, there has been little or no sense of the direction or consistency. It is time, I think this Court should set at rest the appropriate forum and procedure, in the interests of the parties themselves.

11. A copy of this order will be communicated to directly to the Labour Court, Madras. If there is any difficulty experienced in fixing the jurisdiction over this particular claim petition with reference to any Labour Court in the city, the Principal Labour Court, Madras, will render its final decision.

12. The revision is disposed of accordingly. In thee circumstances of the case there will be no order as to costs.


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