P.B. Mukharji, J.
1. This is an application by the petitioner Puran Mal Kyal for notice to show cause on Shew Sakti Oil Mills Ltd., the Second Industrial Tribunal and the State of West Bengal, being the opposite parties, why Civil Revision Case No. 2958 of 1957, disposed of on June 5, 1959, should not be re-heard on notice to him. His case is that he was not properly served. I allowed him to appear on notice to the opposite parties and gave him an opportunity not only of being heard but also of making his full case against the order made on June 5, 1950.
2. The order of the 5th June, 1959 was made by me in these proceedings holding that the order of withdrawal and transfer dated March 9, 1957, was illegal and ultra vires the powers of the State Government in the facts of this case and that the Second Industrial Tribunal, to whom such transfer was made, had no jurisdiction to make the award in question I further held that the order of reference being bad, illegal and without jurisdiction, the award of the Second Industrial Tribunal was necessarily incompetent and without jurisdiction and illegal. I made the Rule of certiorari absolute on June 5, 1959.
3. The petitioner now wants to re-open that decision and he has made his petition and his submissions on the point.
4. The petitioner's contentions are three-fold. His first contention is that by virtue of Section 22 of the General Clauses Act, the Government Reference dated March 9, 1957, was not without jurisdiction. His second contention is that the Supreme Court decision in State of Bihar v. D. N. Ganguli, : (1958)IILLJ634SC , holding that Section 21 of the General Clauses Act does not apply should no longer be regarded as good law because the scheme of the Industrial Disputes Act has changed. His third contention is that as the Company submitted to the jurisdiction of the Tribunal and did not raise that question of jurisdiction, it should not Be allowed to correct that lack of jurisdiction, even if there be any, by any writ of certiorari under Article 228 of the Constitution.
5. In my opinion, Section 22 of the General Clauses Act does not, in this case, save the order of transferdated March 9, 1957. Section 22 of the General Clauses Act, 1897, provides as follows :
'22. Making of Rules or bye-laws and issuing of orders between passing and commencement of enactment:
Where, by any Central Act or Regulation which is not due to come into force immediately on the passing thereof, a power is conferred to make Rules or bye-laws, or to issue orders with respect to the application of the Act or Regulation, or with respect to the establishment of any Court or office or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act or Regulation, then that power may be exercised at any time after the passing of the Act or Regulation: but Rules, bye-laws or orders so made or issued shall not taken effect till the commencement of the Act or Regulation.'
This section operates on that period of time which lies between the 'commencement' of the Act and the 'passing' of it. Many orders may be required to bring a particular law into operation and the object of Section 22 is that such orders may be made after the passing of an Act but before the actual commencement of the operation of that Act. Such orders, however, take effect from the commencement of the Act. It is, therefore, contended here that although on March 9, 1957, when the order of transfer was made, the amendment had hot come into force, still the order was good and should be read as taking effect on the following day, March 10, 1957, when the Act came into force.
8. The essential question here is whether an order of transfer is an order within the meaning of Section 22 of the General Clauses Act. Plainly enough, Section 22 itself does not expressly mention any order of transfer. It expressly mentions issue of orders but such orders are with respect to (1) the application of the Act or Regulation or (2) the establishment of any Court or office or the appointment of a Judge or officer or (3) the person by whom or the time when or the place where or the manner in which or the fees for which anything is to be done under the Act or the Regulation. These are the three classes of orders which Section 22 of the General Clauses Act mentions. Now, an order of transfer by the Government of a pending case, pending before an Industrial Tribunal, is not, at least, expressly within the meaning of these classes of orders. Can such an order of transfer be therefore included by implication under Section 22, is the question. The answer must in my view be in the negative. This order of transfer cannot be regarded as an order for the application of the amending Act. This order does not establish a Court or office or appoint a Judge. This order cannot also come under an order appointing the person by whom powers under the Act are to be exercised. It is an individual and specific order of transfer of a particular pending case. An order of transfer of a pending case is an order of vital importance for the independent working of a judicial tribunal as I have already indicated in my judgment in these proceedings and which has since been reported in Shree Shew Sakti Oil Mills Ltd. v. Judge, Second Industrial Tribunal, West Bengal, : (1959)IILLJ603Cal .
7. The petitioner has relied on the following observations made by Mahajan, J. in the decision of the Supreme Court, in Minerva Mills Ltd. v. Their Workers, : (1954)ILLJ119SC .
'His further contention that the Government could not withdraw the dispute referred to the First Tribunal so long as the members of the First Tribunal were available and could not hand it over to the Second Tribunal, cannot also be sustained.'
This case is only an authority for the proposition that under Section 7 of the Industrial Disputes Act, 1947 the Government had powers to constitute an industrial tribunal for a fixed period of time and to constitute a new tribunal on the expiry of that period to hear and dispose of all references made to the previous tribunal which remained undisposed. This does not help the petitioner in this case, after the exposition of the law on the point by the decision of the Supreme Court in : (1958)IILLJ634SC , holding that the Government cannot supersede a reference pending before a tribunal appointed by the Government under Section 10(1)(d) of the Act. It is also to be noted that in the Minerva Mills case, : (1954)ILLJ119SC the Supreme Court was not at all considering the effect of Section 22 of the General Clauses Act.
8. This argument to invoke Section 22 of the General Clauses Act to save the order of transfer dated March 9, 1957, is also misconceived on the facts of this case. The order of transfer in this case was not made under Section 33-B of the amendment introduced by Section 23 of the Amending Act (Act 36 of 1956). A glance at the order itself will show that the order of transfer was not made under section 33-B of the new amendment, but was made expressly under Section 10 of the Industrial Disputes Act and, therefore, in my opinion, Section 22 of the General Clauses Act can, under no circumstances, be invoked on the facts of this case.
9. I, therefore, overrule the first submission of the petitioner.
10. The petitioner's second submission is that Section 21 of the General Clauses Act should be applied. He wants to get out of the decision of the Supreme Court in : (1958)IILLJ634SC by saying that that decision was rendered only on the ground of the scheme of the Act then existing which has since that decision been changed by the Amending Act 36 of 1956 and Act 18 of 1957. For this purpose he points to the observations of Gajendragadkar, J. at p. 1089 (of SCA): (at p. 1022 of AIR) of that Report saying: 'The scheme of the provisions in Chapters III and TV of the Act would thus appear to leave the reference proceedings exclusively within the jurisdiction of the tribunals constituted under the Act.' The argument is based on the fact that the Supreme Court there was dealing with an order of cancellation and supersession made in 1955 which was prior to these amending Acts. According to the petitioner's submission on this point, under the present amendments, a limited power of transfer is given and Section 33-B, introduced by the amending Act, 36 of 1956, changes the scheme of the Act and powerof transfer is expressly given though there is no power to cancel. I am not prepared to limit the decision of the Supreme Court on the non-applicability of Section 21 of the General Clauses Act as based only on the ground of the scheme of the Act. But it is not necessary for me to decide that question because here again the question will arise only if the order of transfer was, in fact, made under the amending Act 36 of 1956. As the order of transfer was not so made but expressly made, on the face of it, under the old unamended statute, Section 10 of the Industrial Disputes Act, this argument also cannot save the order of transfer in the present case.
11. Besides, I adhere to what I have said in : (1959)IILLJ603Cal that even as an order under Section 33-B, this order of transfer cannot be sustained because it does not comply with the statutory condition of statement of reasons. On that point, the learned Advocate for the petitioner has drawn my attention to the decision Aeron Steel Rolling Mills v. State of Punjab, , where an observation is made that statement of reasons in the order of transfer is merely directory and not mandatory. In my opinion, the validity of the order itself depends on the statement of reasons which gives jurisdiction to make the order. A matter affecting jurisdiction cannot be treated as directory and not mandatory. It goes to the root of the question. With great respect, therefore, I am unable to accept the observations made by Bhandari, C. J. in that decision in of that report.
12. I, therefore, overrule the second submission of the petitioner.
13. The last and the third submission of the petitioner is that the Company had submitted to the jurisdiction of the Tribunal, that it did not raise the question of jurisdiction before it and therefore it must be debarred from raising it here by way of a writ under Article 226 of the Constitution. In support of that argument, the learned Advocate for the petitioner has relied on the decision in Harendra Nath Bose v. Judge, Second Insustrial Tribunal, : (1958)IILLJ198Cal and the Bombay decision referred to therein in Gandhinagar Motor Transport Society v. State of Bombay, : AIR1954Bom202 . Those cases were not dealing with the question of inherent competence of a tribunal or the root question of jurisdiction. The petitioner further relied on two decisions of the Supreme Court -- (1) Manaklal v. Dr. Prem Chand Singhvi, (S) AIR 1937 SC 425 and (2) Pannalal Binraj v. Union of India, : 1SCR233 . The first case is a case under the Bar Councils Act where the question of bias was raised. Bias did not affect the inherent jurisdiction of the Tribunal under the Bar Councils Act but only disqualified the member who had such bias and, therefore, it was held following the well-settled principle that consent after knowledge of bias would debar the petitioner from challenging on the ground of bias. So again in the latter decision under the Income Tax Act, there was no inherent lack of jurisdiction or incompetence in the Income Tax Authority but it was the particular order of transfer which was challenged as discriminatory. These two cases do not apply to the facts of the present case where inherent incompetence of the Tribunal and its lack of jurisdiction distinguish the present case before me on fundamental grounds.
14. On the well-known authorities both of the Privy Council and of the Supreme Court, namely, Ledgard v. Bull, 13 Ind App 134 (PC), Meenakshi Naidoo v. Subramaniya Sastri, 14 Ind App 160 (PC) and Kiran Singh v. Chaman Paswan, : 1SCR117 , it is clear that consent will not create jurisdiction. In this case, there was no jurisdiction at all and, therefore, failure to object to the jurisdiction will not clothe the Tribunal with jurisdiction. It is a point of pure law and defect in jurisdiction. It is not based on any fact. If writs of certiorari cannot be used to correct such lack of jurisdiction or orders passed without jurisdiction, then I do not see what that writ of certiorari is for. I, therefore, overrule also this last submission of the petitioner.
15. These being all the points that have been urged before me and they having all failed, the following order is made on the application of the petitioner :
The order making the Rule of certiorari absolute on the 5th June, 1959 is re-affirmed and confirmed upon hearing the petitioner.
16. There will be no Order as to costs.