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Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1978)IILLJ371Cal
AppellantGrindlays Bank Ltd.
RespondentCentral Government Industrial Tribunal and ors.
Cases ReferredRaja Debi Bakhsh Singh v. Habib Shah
Excerpt:
- sabyasachi mukharji, j.1. whether certain drivers employed by the management for the officers of grindlays bank ltd. are entitled to the same wages, allowances and other facilities enjoyed by other drivers of the said bank, and, if so, from what date and to what extent, these are the issues which were pending adjudication before the central government industrial tribunal in a reference made by the government. it appears that on or about 21st september, 1974, there was a letter from the commercial establishment employees' association being respondent no. 2 herein enclosing a charter of demands for drivers who are working as employees of the officers of the grindlays bank ltd., the petitioner herein did not accede to the said charter of demands. thereafter the matter was referred to the.....
Judgment:

Sabyasachi Mukharji, J.

1. Whether certain drivers employed by the management for the officers of Grindlays Bank Ltd. are entitled to the same wages, allowances and other facilities enjoyed by other drivers of the said Bank, and, if so, from what date and to what extent, these are the issues which were pending adjudication before the Central Government Industrial Tribunal in a reference made by the Government. It appears that on or about 21st September, 1974, there was a letter from the Commercial Establishment Employees' Association being respondent No. 2 herein enclosing a charter of demands for drivers who are working as employees of the officers of the Grindlays Bank Ltd., the petitioner herein did not accede to the said charter of demands. Thereafter the matter was referred to the Regional Labour Commissioner for conciliation. But the conciliation proceedings failed. On or about 26th July, 1975, the Government of India, Ministry of Labour, referred the aforesaid disputes and issues, mentioned hereinbefore, for adjudication. On 28th May, 1976 the hearing was fixed and the same was adjourned at the request of the petitioner-Bank. On 24th June, 1976 the next hearing was fixed and the case was adjourned till 19th August, 1976 on the ground that the presiding officer of the Tribunal was not in Calcutta, On or about 19th August, 1976, the reference was called on for hearing and learned advocate on behalf of the respondent-Association asked for time on the ground that the Secretary had gone away without handing over records to the learned lawyer. The matter was adjourned till 20th October, 1976. Thereafter on 20th October, 1976, learned lawyer appearing on behalf of the respondent-association had prayed for an adjournment on the ground of illness of the senior lawyer. It was adjourned till 9th December, 1976. On or about 9th December, 1976 learned lawyer on behalf of the respondent-Association again prayed for an adjournment on the ground that he had received a telegram alleging that the father of the sender of the letter had died but the prayer for adjournment was refused. The Tribunal, thereupon, proceeded with the hearing of the matter and an award was made on 9th December, 1976. On or about 25th December, 1976 the award was published in the Gazelle under Section 17 of the Industrial Disputes Act, 1947. On 19th January, 1977, the respondents Nos. 5 to 7, who were the drivers concerned, through the Association, filed a petition before the Tribunal for recalling, setting aside and reviewing the award. On or about 12th April, 1977 the Tribunal set aside the order or the award dated 9th December, 1976. As the award had not become enforceable and in view of the relevant provisions and the facts of the case, the Tribunal found that it had to be set aside and the reference restored to file for adjudication on merits. It is this order of the Tribunal dated 12th April, 1977 which is under challenge in this application under Article 226 of the Constitution.

2. It was contended on behalf of the petitioner that, in the facts and circumstances of this case, the Tribunal had no power to pass the impugned order dated 12th April, 1977. It was urged that the Tribunal being a creature of statute, had no power to pass any order recalling or reviewing its previous order. Reliance in this connection was placed on several decisions to which I shall presently refer in detail.

3. On behalf of the respondent-association it was urged that the Tribunal had at least implied power to do justice in this case and therefore the impugned order was within the competence of the Tribunal. It was urged that there was nothing in the statute which prohibited the Tribunal from passing the impugned order. It was, therefore, submitted in the interest of justice the Tribunal thought it fit and it had the right to pass the impugned order. Reliance in aid of this submission was placed on several sections of the statute as also on serveral decisions which I shall also presently note.

4. It is clear that there is no specific provision or specific section in the Industrial Disputes Act, 1947 or in the Industrial Disputes (Central) Rules, under the said Act which expressly permitted the Tribunal to recall or review its previous order in the circumstances of this case. It is also well-settled that unlike the superior Courts, Tribunals being creatures of statute have no inherent powers, as such but the question, is, whether in this case in view of the relevant provisions of this Act, it can be said that Tribunal has implied power to pass an order in the circumstances of this case. It is also necessary to bear in mind that I am not concerned, in this application, with the general or broad question whether the Tribunals under Industrial Disputes Act, 1947 have either any inherent powers or any implied powers to recall or review their previous orders, as such, but I am concerned in this case with the question whether the Tribunal can pass any order, reviewing or recalling previous order in a matter which has been published in the Gazette under Section 17 of the Act and in respect of which an application for setting aside or recalling the order had been made prior to the date when the award would have become enforceable. In order to appreciate this question it is necessary to consider, firstly, the relevant statutory provisions. The Industrial Disputes Act, 1947 is an Act to make provisions for investigation and settlement of industrial disputes and for certain other purposes. The preamble states that where it is exepdient to make provisions for the investigation and settlement of industrial dispute the Act was being enacted. Therefore, the provisions of the Act must be viewed with the object of facilitating the investigation and settlement of industrial disputes For this purpose the entire scheme of the Act has to be pre-viewed in order to find out the meaning used in a particular section. It is also necessary to bear in mind that there should be harmonious construction of the different provisions of the relevant sections of the Act. To seek and to promote industrial harmony by construing in this harmonious way the relevant provisions of the Act would be the proper approach in construing a legislation of this type. The relevant section with which I am concerned in this case is Section 11. The relevant portion of Section 11 of the Industrial Disputes Act, 1947 provides as follows :

11. Procedure and powers of conciliation: Officers, Boards, Courts and Tribunals.

(1) Subject to any rules that may be made in this behalf, an arbitrator, a board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.

* * *(3) Every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely :

(a) enforcing the attendance of any person and examining him on oath ;

(b) Compelling the production of documents and material objects ;

(c) issuing commissions for the examination of witness ;

(d) in respect of such other matters as may be prescribed;

and every enquiry or investigation by a Board, Count, Labour Court, Tribunal or National Tribunal, shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.

5. In this connection it may also be relevant to note that Sub-section (1) of Section 11 as it stood prior to its amendment by Section 9 of the Act, 1956 was as follows :

Conciliation officers, Boards, Courts and Tribunals shall, subject to the provision of this Act follow such procedure, as may be prescribed.

Sub-section (1) of Section 17 provides that every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks lit. Sub-section (2) of Section 17 stipulates that subject to the provisions of Section 17A, the award published under Sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever. Section 17A is to the following effect :

17A. Commencement of the award :

(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publications under Section 17 :

Provided that:

(a) if the appropriate Government is of opinion in any case where the award has been given by a National Tribunal that it will be inexpedient on public grounds affecting national economy or social justice to give effect ' to the whole or any part of the award, the appropriate Government, or as the case may, be the Central Government may, be notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of said period of thirty days.

(b) Where any declaration has been made in relation to an award under the proviso to Sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.

(3) Where any award as rejected or modified by an order made under Sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid ; and where no order under Sub-section (2) is made in pursuance of a declaration under the proviso to Sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in Sub-section (2).

(4) Subject to the provisions of Sub-section (l)and Sub-section (3) regarding the enforce-ability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under Sub-section (1) or Sub-section (3), as the case may be.

6. Section 20 deals with commencement and conclusion of proceedings and Sub-section (3) of Section 20 is as follows :

(3) Proceedings before an arbitrator under Section 10A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudications, as the case may be and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 17A.

7. Section 38 empowers the appropriate Government to make rules and puruant to the authority, rules have been framed. Rule 22 of the said Industrial Disputes (Central) Rules, 1957 deals with the case where the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex parte and it stipulated that if without sufficient cause being shown, any party to proceeding before a Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed, as if the party had duly attended or had been represented.

8. The question, is, whether in this case in view of Sub-section (1) of Section 11 which provides that the Tribunal shall follow such procedure as it thinks fit, the Tribunal had authority to review or recall its previous order for the reasons mentioned in its order. I am not concerned in this application with the propriety of the order but I am concerned with the validity or the jurisdiction to make the impugned order. Unlike the superior Courts, the Tribunals being the creatures of statutes derive powers from the statute and the Tribunals, as such, unlike superior Courts have no inherent powers but the Tribunals' powers may be either express or implied. Apart from the powers expressly mentioned the Tribunals' powers may be which are incidental or ancillary.

Such incidental or ancillary powers might be derived by the Tribunals either from the express provisions of the statute creating such bodies or by necessary implications of the powers conferred. It is also a well-known canon of construction that such construction should be made which will facilitate the object of the statute but such construction again must not be against the express provision of the statute or the express will of the Legislature. The powers conferred by an enabling statute include not only such as are expressly granted but also by implication powers which are reasonably necessary for the accomplishment of the object intended to be sucured (see Halsbury's laws of England, 3rd Edition, Vol. 36 Article 657 at page 436). The question here, is, whether in view of Section 11(1) and in view of Section 17 read with Section 17A of the Act, such power of reviewing or recalling can be implied in this case.

9. In the case of P. N. Thakershi v. Pradyumansinghji : AIR1970SC1273 , the Supreme Court observed that the power to review was not an inherent power. It must be conferred by law either expressly or by necessary implication. In the case of Gungaram Tea Company v. Second Labour Court and An.r 1967-II L.L.J. 325 : 71 C.W.N. page 14, a similar question came up for consideration before B.C. Mitter, J. It was held by the learned Judge that the Tribunal was a statutory authority. It had, therefore, no inherent power to direct a matter to be heard afresh after in the order-sheet it was recorded that evidence had been closed. It was clear in that case to his Lordship that sufficient opportunity to both the respondent-workman as also the union to appear before the Tribunal and present their case with regard to the application under Section 33(2)(b) of the Industrial Disputes Act, 1947 had been given. The opportunity, it was found by the Court, had not been availed of and there was no reason, according to the Court, why the Tribunal which was a statutory body should be allowed to hear the matter afresh when the statute did not confer any such power. It was urged in support of this application that in view of the authority of the aforesaid decision, it should be held that the Tribunal as such as no inherent power and had no jurisdiction to pass the impugned order in that case. But it has to be borne in mind that in that case the Court had no occasion to consider the question of the implied power in view of Sub-section (1) of Section 11 of the Industrial Disputes Act, 1947 nor was the Court concerned with the question as to whether in view of Section 17A, the finality to the order had not been attached or not. The Court had also expressed the view that the Tribunal in that case had given sufficient opporutunity to the parties concerned and thereafter passed the final order. Therefore, it was felt by the Court that thereafter the Tribunal should not be credited with any further power to reopen that final order. I had an occasion to consider the same aspect in the case of Belts Asbestos & Engg. Pvt. Ltd. v. A. Heartgrave & others, reported in 1976-1 L.L.J. 534 ; 1976 I & I.C. 521. There the petitioner-company had dismissed the workman and since an industrial dispute was pending, it sought the permission of the Tribunal under Section 33(2)(b) of the Act. The workman concerned had taken a number of adjournments for filing his written statement. Finally the matter was fixed for settling the issues ex pane. On that date, since the workman had not come, evidence, was taken for the management. After the witness was examined to prove certain documents, the workman appeared through an advocate and sought time to file written statement. The Tribunal granted this prayer and asked the workman to pay the cost. The management challenged the order of the Tribunal in the writ petition. It was held by me that the Tribunal had power to pass the order in that case if it had thought fit to do so in the interest of justice. I had held that there was no express power giving jurisdiction to the Tribunal to do so, but I had observed that it was a wellknown rule of construction that a Tribunal or a body should be considered to be endowed with such ancillary and necessary powers to discharge its functions effectively for the purpose of doing justice between the parties. I had also referred to the fact that the Act was for providing machinery and method for settlement of industrial disputes, and its provisions should be construed in that light. I came to the conclusion that the facts before me in the other case was different from the facts before B.C. Mitter J., in the case of Gungamm Tea Co, Ltd., A Division Bench of the Orissa High Court had occasion to consider this question in the case of the Management of Dhenkanal v. Industrial Tribunal and Ors. reported in 1974-I L.L.J. 44. There the writ petition was against the order of the Tribunal rejecting the petition by the management for setting aside an ex pane award on the ground that it was not maintainable and the Tribunal had no jurisdiction to restore the case. The petitioner, namely, the management, had contended that the Tribunal had jurisdiction and it had failed to exercise the same and so a writ of certiorari should be issued to quash the award and a writ of mandamus should be issued directing the Tribunal to go into the merits of the application for restoration. It was contended by the workmen that after passing of the award under Section 17, the Tribunal had become functus officio to set aside the ex parts award and the Tribunal had no implied powers to set aside an ex parte award. It was held that the Act and the rules did not specifically confer all the powers of a civil Court on Tribunals while trying a suit. It would, however, appear that under Rule 23 if sufficient cause, under the relevant Rules similar to Rule 22 of the present rules, which I have referred to hereinbefore, was shown the Tribunal may adjourn a case and would not proceed with the case as if the party had only attended or had been represented. Attention was drawn to Rule 23 of the Orissa Rules which gives the Tribunal the power of granting adjournment as prescribed under the Code of Civil Procedure. Having regard to the relevant provisions, the Court came to the conclusion that the Tribunal had the power to review its order as the application for the same had been filed before the award had become enforceable under Sub-section (2) of Section 17 of the Act and in view of Section 17A of the Act. In that case, however, the petition of setting aside the award was filed on 31st December, 1969. The award was published subsequent to that petition on the 6th of January, 1970. The Division Bench was of the view that the moment an application for setting aside, the ex pane award was filed a Tribunal got jurisdiction to set aside such award. The notice of application for setting aside the ex parte award was to be given to the other side. The writ application was accordingly allowed. In respect of this decision it was to be borne in mind that in the instant case before me the application for setting aside the ex parte award had been filed after the award had been published, a fact which is different from the facts before the Orissa High Court. On behalf of the petitioner it was contended that the Orissa High Court was in error in not realising that some of the powers of the civil Court were conferred by Rule 25 and all the provisions of Order 17 were not Attracted and Order 9 of the Code, it was submitted, would have no application in this case. Delhi High Court had also occasion to consider in the case of Metal Fabricators (Ind.) v. B.D. Gupta and Ors. (1975) Lab. I.C. 1707, a Similar aspect. There it was held that the Labour Court or the Industrial Tribunal had jurisdiction to set aside an ex parte order or an award passed on the ground that there was sufficient cause for the non-appearance of the party aggrieved. As the industria adjudication by a Labour Court or an Industrial Tribunal was a quasi-judicial function, the procedure to be followed by it was to be such as would carry out the quasi-judicial duties. No adjudication worth the name could justly be done without hearing a party against whom an order was to be passed. This was why a notice of hearing was required to be given to a party. The party can be heard only if it appeared. If it did not wilfully appear, the presumption would be that it did not desire to be heard or it had nothing to say. But if the party could not avail himself of the right of hearing because his non-appearance was due to sufficient cause, then a further opportunity, according to the Court, must be given to such a party to appear and be heard. It was held that even if the rules framed under the Act did not specifically empower Labour Court or a Tribunal to set aside an ex parte order or an award passed by it on the ground that the non-appearance of the party affected was due to sufficient cause, still it would be able to do so because the procedure to be followed by it was to be, ' as it thinks lit'. The view that a party was intended to have a further opportunity to be heard if it showed that its non-appearance at a previous hearing was due to sufficient cause as being implicit in the procedure to be followed by a Labour Court or an Industrial Tribunal under Section 11(1) is fortified by Rule 22 of the Industrial Disputes (Central) Rules, 1957, to which I have referred hereinbefore. Reliance was placed by the Division Bench of the Delhi High Court on the decision of the Orissa Division Bench already referred. In the case of Malik Dairy Farms v. Its Workers' Union 1968-II L.L.J. 523, Mr. Justice Tarkunde of the Division Bench of the Bombay High Court had made certain observations. But those observations were merely passing observations because the Division Bench of the Bombay High Court was not called upon to adjudicate whether the Tribunal had any power to recall or review its orders in the circumstances as in the present. Their Lordships, however ,in passing, observed as follows :

There is unfortunately no rule in the Industrial Disputes (Bombay) Rules, 1957, which enables a party to a reference made under the Industrial Disputes Act, 1947, to apply to a Labour Court for setting aside an award passed ex parte. Rule 26 of these Rules lays down that if without sufficient cause being shown, any party to a proceeding before a board, court, labour court, tribunal or an arbitrator fails to attend or to be represented, the board, court, labour court, tribunal or arbitrator may proceed ex parte. A party, however, who is absent even for sufficient cause on a date fixed for hearing of a reference, has usually no opportunity to show to the labour court before the Court proceeds to hear the reference ex parte that his absence is for sufficient cause. If the labour court passed an ex. parte award and the aggrieved party approaches as under Articles 225 to 227 of the Constitution, we are unable to interfere with the award unless the Labour Court is found to be wrong in law in proceeding ex parte and it is virtually impossible for the aggrieved party to show on the basis of the record of the labour court that the Court erred in law in proceeding ex parte. We understand that a rule enabling an aggrieved party to apply to the labour court (or other Tribunal under the Act) for setting aside an ex parte award is found in the rules framed under the Industrial Disputes Act, 1947, by the State Governments of Madras, Uttar Pradesh and Kerala. It appears to us desirable that such a rule should find place in the Industrial Disputes (Bombay) Rules, 1957.

10. But as mentioned before the facts of that case were different and the observations were not made on the controversy as to whether on the sections and the rules as were prevalent the Tribunal had any authority to pass an order recalling or reviewing its order. Relying on the aforesaid observations of the Division Bench of the Bombay High Court in the case of Mohd. Y. Kola v. James D'Souza, (1974) Lab. I.C. page 800 the learned single Judge of the Mysore High Court held that in the absence of a specific rule conferring jurisdiction on the Tribunal to set aside the ex pane award it was not open to the Tribunal to entertain an application for such a relief. But it appears that before his Lordship no contention was urged that the order had not become final in view of Section 17A of the Industrial Disputes Act. In the case of Poddar Project Ltd. v. J. K. Dey, (1977) Lab. I.C. page 1039 in an application under Section 33(2)(b) by the employer to the Tribunal for permission to discharge the employee for misconduct the Tribunal had rejected the employer's application for further adjournment of hearing on the ground that the employer had taken numerous adjournments. It was held by me in that case that the Tribunal's order rejecting the application for adjournment was within jurisdiction and based upon reasons and, therefore, could not be interfered with under Article 226 of the Constitution. There I had observed that unlike the general Civil Courts the Tribunals being creatures of statutes derive their powers from the statutes. Therefore, unless the statute so indicates, there is as such in the Tribunals no inherent powers but certain power to discharge fully the functions entrusted to the Tribunals can be implied in the powers granted to the Tribunals to decide an application under Section 33(2)(b). This will be the position unless there is any contrary indication in the statute. My attention was also drawn to certain observations of the Kerala High Court in the case of Workmen of Travancore Rayon's Ltd. v. T. R. Ltd. 1967-I L.L.J. 518. But it has to be borne in mind that Rule 23 of the Kerala Industrial Disputes Rule, 1957 specifically empowered the Tribunal to set aside an ex pane order of the Tribunal, Therefore, the observations made by the learned single Judge of the Kerala High Court must be considered in that light. Lastly, my attention was drawn to certain observations of the Judicial Committee in case of Raja Debi Bakhsh Singh v. Habib Shah, 40 I.A. 151 at page 155 to the effect that any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertantly made. It was further, observed that the principle of forfeiture of rights in consequence of a default in procedure by a party to a cause, was a principle of punishment in respect of such default. It was, therefore, urged that such penal provision should be so construed as not to defeat the purpose of the Act.

11. As I mentioned before the correct approach should be to find out whether the Tribunal has implied power in the facts and circumstances of the case to pass the impugned order. The Tribunal has the power to follow such procedure as it thinks fit and in recalling an order in circumstances where the Tribunal considers that it has been improperly passed may be following a procedure which the Tribunal considers fit and proper. The question, is, whether there is any contrary intention. Section 17 stipulates that subject to the provisions of Section 17A the award published shall be final and shall not be called in question in any court in any manner whatsoever. The finality as such does not affect the right to recall it. What it affects is that so far and so long as it stands it should not be reopened in any proceeding. In this connection reference will have to be made to Section 17A which deals with the commencement of the award. It will be 30 days from the expiry of the award. As 30 days had not expired in this case before the award became enforceable, in my opinion, it would be proper to hold that the Tribunals have the implied powers to recall, in appropriate cases, order which had not become enforceable by the operation of Section 17A of the Act. In that view of the matter, the order of the Tribunal cannot be challenged as without jurisdiction.

12. In the premises, the challenge in the application fails and the application is accordingly dismissed.

There will, however, be no order as to costs.

Interim order, if any, stands vacated.

There will be a stay of the operation of the order for two weeks.


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