1. The main question that arises for consideration in each of these applications, preferred under Article 226 of the Constitution for the issue of a writ of prohibition, is the same and they can be disposed of by a single order. Each of the petitioners is the proprietor of what has been styled a Handloom factory. Varying numbers of weavers work for the petitioners. Disputes arose between the Management and the weavers in seven such factories including those of the five petitioners. Conciliation proceedings failed, and on 20th July, 1955, the Government referred to the Industrial Tribunal, Madras, under Section 10(i)(c) of the Industrial Disputes Act, the following disputes for adjudication as industrial disputes:
Whether the wage cut made in November, 1954, should be restored and if so, from what date?The fixation of the number of festival holidays.
2. Four of the petitioners filed W.P. No. 555 of 1955 for the issue of a writ of certiorari to quash the reference ordered under Section 10(1)(c) of the Act. The petition was dismissed by this Court on 12th February, 1957. The order of dismissal ran:
The order of the Government sought to be quashed by the issue of a writ of certiorari is clearly an administrative order and so is not amenable to being quashed as prayed.
3. During the pendency of W.P. No. 555 of 1955 the further proceedings before theIndustrial Tribunal stood stayed.
4. On 18th February, 1957, the five petitioners presented a joint application to this Court for the issue of a Writ of prohibition to restrain the Industrial Tribunal from proceeding with the adjudication of what were referred to it as industrial disputes. Eventually that petition, W.P. No. 177 of 1957, was accepted as an application by one of the Proprietors, Guruswami Nadar. Each of the others presented a similar application, and the relief asked for was identical, the issue of a writ of prohibition.
5. The main contention of the petitioners was that the weavers were not workmen as defined by Section 2(s) of the Act, and that therefore what were referred for adjudication were not industrial disputes within the meaning of Section 2(k). It was on similar contentions that the petitioners applied for the issue of a writ of certiorari in W.P. No. 555 of 1955 and in the counter-affidavit filed by the Government in those proceedings the correctness of the claim of the petitioners was traversed. It was on those very contentions that the parties relied in these proceedings also. I have set this out only to show that the truth of the allegations in the affidavit filed in W.P. No. 177 of 1957 has not been admitted by the respondents and has yet to be established.
6. The question for determination is, whether this is the stage of the proceedings before the Industrial Tribunal when a writ of prohibition can issue. It should be remembered that the proceedings before the Tribunal which were stayed during the pendency of W.P. No. 555 of 1955 continued to be stayed after the presentation of these applications for the issue of writs of prohibition.
7. In Kadachira Motor Service, Ltd. v. State of Madras (1957) 70 L.W. 358 I stated:
Whether there was an industrial dispute as defined by the Act to justify a reference by the Government to the Industrial Tribunalfor adjudication if the question which the petitioners want to be determined at this stage....It has been held in more cases than one that despite the fact that the validity of the reference itself cannot be challenged by an application for the issue of a writ of certiorari to quash the order of reference, the question whether a given dispute is an industrial dispute has yet to be decided. It is primarily for the Industrial Tribunal to decide that issue. If there is no industrial dispute at all as defined by the Act the Industrial Tribunal would obviously have no further jurisdiction to adjudicate any dispute. Possibly, it may be desirable for the Industrial Tribunal to decide that issue as a preliminary issue. But at this stage neither a writ of prohibition can issue, nor a writ of mandamus can issue. As the proceedings are pending, the Industrial Tribunal, as I said, has jurisdiction to decide the question whether an industrial dispute existed.
8. I took the same view in a subsequent and unreported decision of mine in W.P. No. 370 of 1957 1957 M.W.N. 44.
9. In canvassing the correctness of this view, Mr. Nambiar, the learned Counsel for the petitioners, invited my attention to an earlier decision of mine in Radhakrishna Mills v. State of Madras : AIR1956Mad113 . I held in that case that what was referred was in fact and in law an industrial dispute within the scope of Section 2(k) of the Act. At page 282 I stated:
What I have to consider is whether the Tribunal had jurisdiction to adjudicate the industrial dispute referred to it. If it had nojurisdiction a writ of prohibition could issue even as a writ of certiorari could issue to quash an award of the Tribunal if it had acted without jurisdiction. Absence of an industrial dispute would obviously be sufficient to negative jurisdiction. The validity of the order of reference is open to examination by this Court to decide whether the Tribunal had jurisdiction.
With reference to that case I again pointed out 'there was an industrial dispute in this case'. In making these observations I was not concerned with the stage at which a writ of prohibition could issue. That as I stated is the real question for determination in this case. I cannot see any real conflict between the views I recorded in Radhakrishna Mills v. State of Madras (1956) I M.L.J. 280 and those which I recorded in my later judgments. Mr. Nambiar next referred to Abdul Kader Sahib v. State of Madras : (1956)1MLJ574 in which Rajagopala Ayyangar, J., directed the issue of a writ of prohibition, and to Sri Rama Vilas Service, Ltd. v. State of Madras A.I.R. 1956Mad. 115 in which I ordered the issue of a writ of prohibition. In each of these cases the decision was based on the finding, that the dispute that was referred under Section 10(1)(c) of the Act for adjudication by the Tribunal was not an industrial dispute at all as defined bySection 2(A) and that therefore the Tribunal had no jurisdiction to proceed with the adjudication.
10. Neither Rajagopala Ayyangar, J., nor I had occasion then to determine whether the Tribunal itself had jurisdiction to decide whether the dispute that was referred to it for adjudication was an industrial dispute. It is true that in each of these cases the Court examined the facts pleaded and proved by affidavits and came to the conclusion that what had been referred was not an industrial dispute. But I can look upon neither decision as having a direct bearing upon the question, whether this Court has exclusive jurisdiction even in proceedings under Article 226 of the Constitution to decide whether what was referred was an industrial dispute, and whether the Industrial Tribunal has no jurisdiction to try even as a preliminary issue the question whether what was referred was an industrial dispute.
11. Mr. Nambiar submitted that though the questions, whether the weavers were workmen and if so the disputes between them and the petitioners were industrial disputes, had to be decided as jurisdictional issues, involving determination of jurisdictional facts, the Tribunal had no jurisdiction to determine these issues. The same plea was presented in a slightly different aspect. Mr. Nambiar urged that the jurisdiction of the Tribunal depended on a valid reference under Section 10(1)(c) of the Act and the reference could be valid only if there was a dispute which in fact and in law amounted to an industrial dispute. Based on this was the further submission, that the Tribunal had no jurisdiction to adjudicate on the validity of the reference under Section 10(1)(c). If I understand Mr. Nambiar's contentions, they come to this : If a party to a dispute referred to the Industrial Tribunal for adjudication pleaded in this Court in proceedings under Article 226 of the Constitution for the issue of a writ of prohibition that what was referred was not an industrial dispute with or without advancing a similar plea before the Tribunal itself, the Tribunal could not claim anyjurisdiction to determine whether the dispute was an industrial dispute. In such cases only this Court can determine that question and if after an investigation of the facts alleged the Court comes to the conclusion that the dispute was not an industrial dispute, a writ of prohibition has to issue.
12. I have no hesitation in rejecting these extreme contentions of the learned Counsel for the petitioners. The jurisdiction of this Court, even in proceedings under Article 226 of the Constitution to decide, where it is necessary to do so, whether a given dispute is an industrial dispute cannot be doubted. That does not necessarily imply that the Industrial Tribunal has no jurisdiction to try such an issue should it become necessary to do so in the proceedings before it. In my opinion, the Tribunal has that jurisdiction. If it comes to a right conclusion that it is an industrial dispute, it has jurisdiction to proceed further with the adjudication of that dispute. If however it comes to the conclusion that the dispute is not an industrial dispute, it can have no jurisdiction to proceed any further. As a statutory Tribunal whose jurisdiction is to be sought within the terms of the Statute which created it, it cannot give itself jurisdiction by deciding wrongly such a jurisdictional issue. If the Tribunalwrongly decides such a question, the error can be corrected by appropriate proceedings under Article 226 of the Constitution.
13. In Ebrahim Aboobakar and Anr. v. Custodian-General of Evacuee Property : 1SCR696 (703-4)(S.C.) Mahajan, C.J., observed at pages 703-4:
It was contended that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point connected to the merits of the case upon which the limit of its jurisdiction depends.... As pointed out by Lord Esher, M.R., in Reg. v. Commissioner of Income-tax (1888) L.R 9. Q.B.D. 313 the formula enunciated above is quite plain but its application is often misleading. The learned Master of the Rolls classified the cases under two categories thus: When an inferior Court or Tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it Will give that Tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the Tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction, and on finding that it does exist, to proceed further or do something more. When the Legislatures are establishing such a Tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction
14. In my opinion an Industrial Tribunal constituted under the Industrial disputes Act falls within the scope of the first category mentioned by the learned Master of the Rolls.
15. In State of Madras v. C.P. Sarthy and Anr. : (1953)ILLJ174SC after pointing out at pages 346 and 347 that a reference under Section 10(1)(c) of the Act was an administrative act (and therefore outside the purview of correction by the issue of a writ of certiorari), the learned Chief Justice observed at page 347:
No doubt it will be open to a party seeking to impugn the 'resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award.
16. In Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. : 1SCR1104 at 1121 Venkatarama Ayyar, J., after an exhaustive review of the case law explained the scope of a writ ofcertiorari, and at page 1134 the learned Judge pointed out the distinction between an error in the exercise of jurisdiction and an error in the assumption of jurisdiction.
17. With reference to an industrial dispute, an error in the assumption of jurisdiction by the Industrial Tribunal could be proved by showing that the decision of the Tribunal on the jurisdictional issue, whether the dispute that was referred to it for adjudication was an industrial dispute was erroneous. I shall refer later to the appropriate remedy if such an error is established. At present I am dealing only with the question whether the decision of an Industrial Tribunal on such a jurisdictional issue as the existence of an industrial dispute is open to correction in proceedings under Article 226 of the Constitution.
18. I am unable to see anything in the later judgment of Bhagwati, J., in D.C. Works Ltd. v. State of Saurashtra (1957) S.C.J. 208 to indicate that the Supreme Court intended to depart from the principles laid down earlier, nor was such a contention pressed before me.
19. If I am right in my view that the Industrial Tribunal has jurisdiction to decide whether the dispute referred to it was an industrial dispute as defined by Section 2(k), and as incidental thereto decide whether the weavers represented by their Union, the third respondent in the proceedings before me, were workmen as defined by Section 2(s) of the Act, it should be obvious that no writ of prohibition can issue at this stage to restrain the exercise of that jurisdiction. It was on similar considerations that a writ of prohibition was refused in the Skipton Industrial Cooperative Society, Ltd. v. Princie (1864) 33L.J.Q.B. 323.
20. The observations of Venkatarama Ayyar, J., at page 1117 in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. : 1SCR1104 (S.C.) clearly explain under what circumstances a writ of prohibition and a writ of certiorari could be asked for. The learned Judge observed:.both writs of prohibition and certiorari have for their object the restraining of inferior Courts from exceeding their jurisdiction, and they could be issued not merely to Courts but to all authorities exercising judicial or quasi-judicial functions. But there is one fundamental distinction between the two writs, and that is what is material for the present purpose. They are issued at different stages of the proceedings. When an inferior Court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior Court for a writ of prohibition, and on that, an order will issue forbidding the inferior Court from continuing the proceedings. On the other hand, if the Court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior Court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction. It might happen that in a proceeding before the inferior Court a decision might have been passed, which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition--certiorari for quashing what had been decided, and prohibition for arresting the further continuance of the proceeding.
21. On the application of these principles it should be clear that, if an Industrial Tribunal wrongly decides the jurisdictional issue and comes to the conclusion that the dispute is an industrial dispute when it is not, the aggrieved party can ask for the issue of a writ of prohibition to restrain the Industrial Tribunal from proceeding further in the matter. The aggrieved party can also ask for a writ of certiorari to quash the proceedings so far taken resulting in the erroneous decision, that what was referred was an industrial dispute.
22. Mr. Nambiar relied to a considerable extent on Mayor and Aldermen of the City of London v. Cox (1867) L.R. 2 239 where after an exhaustive review of the earlier cases the House of Lords held that a writ of prohibition was the appropriate remedy in that case, though no plea had been taken as yet in the inferior Tribunal (Lord Mayor's Court) in bar of the jurisdiction of that Court. Willes, J., pointed out at page 253 of the report that the plaint in that case did not allege any jurisdiction over the debt alleged to be due from Farquharson, and the presumption was against the existence of such jurisdiction. After discussing further the scope of the plaintiff's pleas in that case the learned Judge summed up at page 254 : ' Such being the plea, it appears to us to be bad....' At page 275 after pointing out the difference in the procedural law which applied then to a defendant and to a garnishee, the learned Judge observed:
The garnishee however has no right to plead more than one plea in the Court below and he is not allowed costs there, if successful... It is therefore material for him to incur as little expense as may be before applying for a prohibition and the question, is in effect whether, if a party entitled to plead in the Court below move for a prohibition instead, it is competent for the Court to grant his application.
It was with reference to these facts that the House of Lords decided that in that case a writ of prohibition should issue.
23. There is nothing in the scheme of the Industrial Disputes Act which denies jurisdiction to the Industrial Tribunal to decide whether the dispute referred to it for adjudication is an industrial dispute. In the circumstances of this case, where the truth of the facts alleged by the petitioner and at least not admitted by the respondents has yet to be investigated, the Industrial Tribunal would appear to be the appropriate forum for such investigation. It has jurisdiction to undertake such an investigation and to decide upon proof of the materials placed before it the question at issue.
24. One of the contentions of Mr. Nambiar was, as I stated above, that the Industrial Tribunal had no jurisdiction to go into the validity of a reference under Section 10(1)(c) of the Act. If by that Mr. Nambiar meant that the Industrial Tribunal had no jurisdiction to decide whether the dispute that was referred to it for adjudication was an industrial dispute, I am unable to accept that contention. Despite the order of reference under Section 10(1)(c), an Industrial Tribunal has jurisdiction in fact it will be its duty to decide if required to do so, whether the dispute that was referred under Section 10(1)(c) was an industrial dispute within the meaning of Section 2(k) of the Act.
25. I am not to be understood as saying that in no circumstances can a writ of prohibition issue when a dispute is referred as an industrial dispute to an Industrial Tribunal, and that Tribunal has notdecided whether it is an industrial dispute. All I say is, that in the circumstances of these cases this is not the stage of the proceedings before the Industrial Tribunal when the petitioners can seek the issue of writs of prohibition.
26. In Halsbury's Laws of England, Third Edition, Vol. II, the position is summed up thus in paragraphs 218 and 219:
Prohibition goes as soon as the inferior Tribunal proceeds to apply a wrong principle of law when deciding a fact on which the jurisdiction depends. In any event where the jurisdiction of the inferior Court depends on the judicial determination of facts the order does not lie until the Court has wrongfully on these facts given itself jurisdiction.
Prohibition may be applied for as soon as the absolute absence of jurisdiction is apparent on the record of the proceedings of the inferior Court, without the question of jurisdiction being raised by plea or otherwise in that Court.
27. To similar effect is what is stated in the 'Law of Jurisdiction' by Bailey. At page 668 of Vol. II, the learned author stated:
The writ (writ of prohibition) lies only where the subordinate Tribunal has no jurisdiction at all in the premises, or where, having jurisdiction, some question arises which is not within the power of the Court to decide. The use of the writ is not confined to those cases where the Court has no jurisdiction originally of the subject-matter, but extends also to those cases where the Court haying such jurisdiction is about to exceed its powers, and to do that which it has no power to do at all. In other words, the writ will lie to confine Tribunals within the limits of their powers.
The writ has a proper but a restricted and limited office, and it cannot be enlarged so as to bring within its scope and operation questions merely collateral or incidental to its direct purpose, or more or less intimately connected with such purpose and object. It cannot be made a drag net by means of which all controverted and litigated questions between individual suitors may be brought into Court and tried and determined, for its office, as we repeat, is to prevent the exercise by a Tribunal possessing judicial powers of jurisdiction over matters not within its cognizance or exceeding its jurisdiction in matters of which it has cognizance. It is a preventive rather than remedial process, and cannot take the place of a writ of error or other proceeding for the review of judicial action....
28. The stage at which a writ of prohibition can be asked for was even more expressly dealt with in ' The Practice on the Crown Side ' by Short and Mellor, Second Edition, page 264:
Application for a prohibition should be made as soon as an inferior Court has taken any step in any proceeding in which it has no jurisdiction. If the matter is one in which the inferior Court has jurisdiction, then it should be applied for as soon as some point is raised during the trial which the Court has no jurisdiction to try....
Although the application may be made before the case has been heard in the inferior Court it may be made too soon, as where several matters are pending in a suit before an inferior Court some of Which are within its jurisdiction. In such a case the superior Court will not assume that the inferior Court will exceed its jurisdiction.
29. As I have already stated, the Industrial Tribunal has jurisdiction to decide whether what was referred to it was an industrial dispute. That question is not concluded by the reference ordered by the Government under Section 10(1)(c) of the Act. I am not called upon to express any opinion now whether if the Industrial Tribunal is in error in deciding such a jurisdictional issue, the appropriate remedy to correct such an error is a writ ofcertiorari or a writ of prohibition. But I should like to refer again to the observations of Venkatarama Ayyar, J., at page 1117, in Hari Vishnu Kamath v. Syed Ahmed Ishaque and Ors. : 1SCR1104 (S.C.) which I have extracted already. A writ of prohibition cannot issue at this stage of the proceedings before the Industrial Tribunal.
30. The rule nisi in each of these cases is discharged and the petitions are dismissed. No order as to costs.