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Punjab National Bank Ltd. Vs. A.N. Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in(1952)ILLJ371HP
AppellantPunjab National Bank Ltd.
RespondentA.N. Sen and ors.
Cases ReferredKhurshed Mody v. Kent Controller
Excerpt:
- .....last for a considerable period, the federation prays that the tribunal may be pleased to make tin interim award in regard to pay and allowance of the 150 employees concerned.7. in resisting the claim for the grant of interim relief the bank maintained:it is a question of fact to be decided on evidence produced by the parties whether the 150 persons whose cases are before the tribunal are innocent or are guilty of unpardonable act a of violence, intimidation coercion and victimisation, as a result of its findings the court will either award appropriate relief or dismiss the ease of the 150 persons. pending the determination of this all important question, these 150 persons are not entitled to any relief or any interim award. to grant any relief at this stage will be to prejudge the whole.....
Judgment:

Harnam Singh, J.

* * *after stating the facts * * *

6. From the record it appears that the representatives of the parties accepted the issues fixed to be sufficient. In the statement of the case. for the employees the interim relief specified hereunder was claimed:

150 employees' concerned in the reference have been without job and whether any salaries or allowances since the 17th April and having regard to the fact that the present adjudication having to deal with such a large number of cases is likely to last for a considerable period, the federation prays that the tribunal may be pleased to make tin interim award in regard to pay and allowance of the 150 employees concerned.

7. In resisting the claim for the grant of interim relief the bank maintained:

It is a question of fact to be decided on evidence produced by the parties whether the 150 persons whose cases are before the tribunal are innocent or are guilty of unpardonable act a of violence, intimidation coercion and victimisation, As a result of its findings the court will either award appropriate relief or dismiss the ease of the 150 persons. Pending the determination of this all important question, these 150 persons are not entitled to any relief or any interim award. To grant any relief at this stage will be to prejudge the whole issue.

8. From the proceedings before the tribunal it appears that the bank resisted the claim for interim pay and allowances on the grounds specified hereunder : (1) that industrial tribunals have no jurisdiction to make interim orders; (2) that the bank would not have entered into an arrangement with the Government of India, Ministry of Labour, if the bank was not given the liberty to object the reinstatement of the 150 employees; (3) that an order for payment of interim pay and allowances would amount to a decision of the second matter referred to the tribunal for adjudication; (4) that the conduct of the employees has been such that no interim relief should be granted to them; (5) that no prima facie case for the grant of interim relief has been made out; and (6) that in any case interim pay and allowances should not be allowed except on the employees furnishing security for restitution.

9. In deciding the question of interim pay and allowances the tribunal ordered:

I, therefore, direct the bank to pay these employees their usual salary and allowances as from 14th May 1951, and continue to do so month by month until further orders. The bank shall comply with this order from 1st October 1951. By that date all arrears must be paid off. Thereafter the interim allowance shall be paid month by month. The reasons for this decision shall be given later.

10. On 24th September 1951, the tribunal gave reasons for the order passed on 12th September 1951. On 17th September 1951, the bank applied in this Court under Article 226 of the Constitution for the issuance of a writ of certiorari quashing the order passed by the tribunal on 12th September 1951.

11. Mr. Chari, appearing for the federation and the union, urges a double barrelled objection to the application under Article 226 of the Constitution. In the first place, it is said that Section 7. Industrial Disputes (Appellate Tribunal) Act, 1950, hereinafter called Appellate Act, gives a specific and adequate legal remedy to the bank from the order of the tribunal passed on 12th September 1951, and in the second place, it is said in para. 38 of the application under Article 226 of the Constitution there is a suppression of material facts on which the rule for certiorari was moved. Paragraph 38 of the application reads:

38. That the petitioner has no effective remedy other than the present petition for rectifying the wrong done to the Punjab National Bank, Limited, by reason of the order of 12th September 1951.

12. Now, in case it be found that Section 7, Appellate Act, gives a specific and adequate legal remedy to the bank from the order of the tribunal, the application for the writ would fail, but in case it be found that the remedy provided by Section 7, Appellate Act is not available to the bank and there is no suppression of material facts in the application under Article 226 of the Constitution, the bank would be entitled to press the application for writ on merits.

13. Mr. Ram Lal Anand, appearing for the bank, urges that the order passed by the 'tribunal on 12th September 1951, is not appeasable and that the tribunal in any case having acted without jurisdiction and in contravention of the fundamental principles of justice, the writ of certiorari is the appropriate relief.

14. In arguing the case counsel for the bank urges that the tribunal acted without jurisdiction for the reason that the question of the grant of interim pay and allowances had not been referred for adjudication to the tribunal and that the expression 'interim award' occurring in Section 2(b) of the Act means the final determination of some of the matters referred for adjudication to the tribunal. I do not accept the validity of the argument.

15. Now, an industrial dispute in respect of matters specified in schedule I was referred to the tribunal for adjudication. In Schedule I the maters in respect of which the industrial dispute had arisen are stated to be wrongful dismissal of the workmen mentioned in Schedule II, and their reinstatement and in the event of any order for reinstatement payment of wages and allowances etcetera from the date of the dismissal to the date of reinstatement. In the India Paper Pulp Co. Ltd. v. The India Paper Pulp Workers' Union 1949 L.L.J. p. 258, It was said that Section 10 of the Act does not require that the particular dispute should be mentioned in the order and it is sufficient if the existence of a dispute and the fact that the dispute is referred to the tribunal are clear in the order. In that case Government made an order referring an industrial without specifying the matters in respect of which the dispute had arisen and on these facts it was held that the order for reference was not defective. Clearly, it is not necessary to specify in the order of reference the reliefs to be given by the tribunal in adjudicating upon the industrial dispute. Rule 1(b) of Order 7 C.P.C., requires the plaintiff of state in the plaint the relief which he claims in the suit. Rule 3 of the Rules does not require the relief to be specified in required in the order of reference is the existence of an industrial dispute between the parties to empower the tribunal to grant suitable relief to bring about industrial peace. In the Bharat Bank Limited, Delhi v. The Employees' of Bharat Bank Ltd., Delhi, and the Bharat Bank Employees' Union, Delhi 1950 2 L.L.J. p. 921 Mukherjea, J. said:

In settling the dispute between the employer and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either parties which it considers reasonable and proper though they may not be within the terms of any existing agreement. It is not merely to interpret or give effect to contractual rights or obligations of the parties. It can create new rights or obligations between them which it considers essential for them for keeping industrial peace. An industrial dispute as baa been said on many occasions is nothing but a trial of strength between the employers on the one hand and the workmen's organisation on the other and the industrial tribunal has to arrive at some equitable arrangement for averting strikes and lock-outs which impede production of goods and the industrial development of the country. The tribunal is not bound by the rigid rules of law.

16. Indeed, the tribunal can deal with all matters incidental and ancillary to the dispute referred to it for adjudication and make such orders, provisional or final, as it deems expedient for the settlement of the dispute, though it has not jurisdiction to make an order not substantially involved in or connected with the dispute. Clearly, the jurisdiction of the tribunal is limited to the adjudication of the industrial dispute, but nowhere in the Act is it stated what relief should be granted to the workmen by the tribunal in adjudicating upon that industrial dispute. That being so, I think that there is no force in the objection that the tribunal had no jurisdiction to consider the question of the grant of interim pay and allowances.

17. But it is said that the expression 'interim award' means final determination of some items out of the items that the tribunal is called upon to determine. The argument raised is that as the order passed on 12th September 1951 does not finally determine any of the matters referred for adjudication to the tribunal the order does not come within Section 2(b) of the Act and the tribunal had no jurisdiction to make that order. In Thakur Yugal Kishore Sinha v. The State of Bihar 1950 2 L.L.J. 9. 539 an identical contention was raised. In repelling the contention Meredith, C.J. (Shearer and Das, JJ., concurring) said:

The Oxford Dictionary defines 'interim' inter alia an a 'temporary or provisional arrangement adopted in the meanwhile. There is no reason why this ordinary meaning should not be attached to the word in section 2 (b), and in fact the context clearly shows that that is the meaning attached. 'Award' is defined as an interim or final determination, not only of an industrial dispute, but also of any question relating thereto. Therefore, it is clear that in regard to even a single ' question, both an interim and a final determination of contemplated. Manifestly, the word 'interim' in such a context must mean a provisional or temporary are rangement made in a matter of urgency and subject to a final adjustment or complete determination of the dispute; for example, a payment on account pending final settlement of the amount as in the present case.

18. With great respect I follow the opinion expressed by the full bench of the Patna High Court in (1950) 2 Labour Law Journal 539 and hold that the tribunal had jurisdiction to make the order that it made on 12th September 1951.

19. In arguing the objection as to the jurisdiction of the tribunal counsel contended that the remedy provided by Section 7 of the Appellate Act, is not contemplated for the usurpation of powers under cover of the provisions of the Act. In this connection counsel relied upon Administrator Lahore v. Abdul Majid. A.I.R. 1945 Lah. 81. Clearly, the decision in the last mentioned case has no application to a case where jurisdiction is vested in a tribunal as in the present case and the tribunal either irregularly exercises that jurisdiction or errs in the exercise of that jurisdiction. In A.I.R. 1945 Lah. 81 the committee refused to sanction the building plan under Section 193, Punjab Municipal Act, stating that the area was low lying and could not be properly drained. Section 225, Punjab Municipal Act, provides that no refusal of a committee under Section 193 to sanction erection or re-erection of a building shall be liable to be called in question otherwise than by an appeal. On the refusal of the municipal committee to sanction the plan Abdul Majid instituted the suit out of which the second appeal before the High Court arose. In the second appeal it was said that Abdul Majid should have challenged the order of the committee under the provisions of Section 225 of the Act by way of appeal. In deciding the point Mahajan JM (Bhandari and Achhru Ram, JJ., concurring) said:

When a jurisdiction is vetted in a committee and 1 it either irregularly exercises that jurisdiction or errs in the exercise of that jurisdiction, in those cases the remedy of the subject against the order of the committee is by preferring an appeal to the Commissioner under the provisions of Section 225 and the order of the appellate authority would conclude the matter. Such a decision cannot be collaterally attacked in a civil court. Where, however, the committee acts in excess of the powers conferred by the Act or abuses those powers, then in those cases it is not exercising its jurisdiction irregularly or wrongly, but it is usurping powers which it does not possess and for usurpation of power the remedy provided by the Act cannot be held to be exclusive.

20. In A.I.R. 1945 Lah. 81 (F.B.) all that was said was that the remedy provided by the Act cannot be held to be exclusive where the committee acts in excess of the powers conferred by the Act or abuses those powers. In my opinion, it is not necessary to elaborate this point, for even in cases where jurisdiction is usurped by a court in passing an, order against which an appeal would lie, if it had been passed with jurisdiction, an appeal cannot be defeated on the ground that the order was made without jurisdiction. In any case the bank has failed to establish that the tribunal was guilty of usurpation of powers that it did not possess. That being so, the appropriate remedy of the bank is to appeal to the Appellate Tribunal from the order passed by the tribunal on 12th September 1951, under Section 7, Appellate Act, before applying to this Court under Article 226 of the Constitution.

21. Mr. Anand maintains that Section 7 of the Appellate Act, provides an appeal from an order or a decision of an industrial tribunal and that the order passed by the tribunal on 12th September 1951, is neither a decision nor an award within Section 7 of the Appellate Act. On the finding given hereinbefore that the term 'award' in Section 2(6) of the Act contemplates both an interim and a final determination in regard to a single question, I hold that the order passed by the tribunal on 12th September 1951, falls within the definition of the expression 'award' given in Section 2(b) of the Act. That being so, it is not necessary to investigate the question whether the word' decision' occurring in Section 7 of the Appellate Act means a decision of the tribunal within Section 19(4) of the Act or includes the decision which was made by the tribunal on 12th September 1951.

22. Mr. Anand then maintains that no appeal is competent from an award of the tribunal unless it is published by the appropriate Government under Section 17 of the Act for it is said that the award of the tribunal has no binding force by itself unless the appropriate Government publishes the award under Section 17 of the Act.

23. In plain English Section 7 of the Appellate Act provides for an appeal from any award. Nowhere it is said in the Appellate Act that an appeal will lie from an award which has been published by the appropriate Government. In case the legislature thought to provide an appeal from an award which had been published under Section 17 of the Act, the legislature would have said so in Section 7 of the Appellate Act. On the other hand Section 7 of the Appellate Act gives to the persons mentioned in Section 12 of the Act a right of appeal from any award published or unpublished. Section 10(1) of the Appellate Act which provides that an appeal under Section 7 of the Appellate Act may he preferred within 30 days from the date of the publication of award or decision where such publication is provided for by law under which that award or decision is made does in no way advance the case of the bank. Clearly, the provision for limitation does not give the terminus-a-quo for the purpose of limitation of appeals. In Section 10 of the Appellate Act the time before which the appeal may be filed is given but not the date from which the 'period of limitation is to be reckoned. For these reasons, I think that the non-publication of the award does not affect its appealability under Section 7 of the Appellate Act. In these circumstances it is not necessary to examine the correctness of the opinion expressed by the Appellate Tribunal in Allan Berry & Co. Ltd. v. Their Workmen (1951) 1 L.L.J. 228 that an interim award does not require publication.

24. Basing himself on the provisions of Section 11 of the Appellate Act counsel for the bank said that on 17th September 1951 no appeal could be preferred from the order passed by the tribunal on 12th September 1951. The argument raised is that it was not possible to formulate objections to the award when reasons for the award were not given before 24th September 1951. I do not accede to the argument raised, for if the bank had appealed from the award made on 12th September 1951, the objections on which the bank resisted the claim for the grant of interim pay and allowance, could have been taken in the memorandum of appeal. In any case after 24th September 1951, supplementary objections could have been taken in appeal.

25. Counsel for the bank then said that inasmuch as the tribunal made the interim award without affording an opportunity to the bank to substantiate by evidence their objections to the making of that award the High Court should interfere in these proceedings. In this connection reliance was placed upon Khurshed Mody v. Kent Controller, Bombay and Anr. A.I.R. 1947 Bom. 46 In that case Chagla, J. (Stone, C. J., concurring) said:

We agree that ordinarily the Court will require the petitioner to have recourse to his ordinary remedies, but if the Court finds that there is a breach of a fundamental principle of justice, it would certainly not hesitate to issue this high prerogative writ of certiorari.

26. In overruling this objection I think it sufficient to mention that in no part of the application under Article 226 of the Constitution or in the affidavit of Pandit Somesh Chandra, manager of the bank, is it stated that a request was made to the tribunal to allow the bank to examine evidence before the interim award was given.

27. Giving the matter my anxious consideration, I find that the scheme of the Act is to set up a particular machinery by the use of which alone the industrial dispute is to be determined. That being so, jurisdiction to question the award of the tribunal otherwise than by the use of the machinery expressly provided by the Act would not be justified unless the Court is satisfied that the remedy provided by the Act is not sufficient or a case of usurpation of jurisdiction is established. In the present case the Appellate Act provides a specific and adequate legal remedy for the redress of injury if any, arising out of the interim award of the tribunal and it is for the bank to pursue that remedy before the bank applies to this Court for relief under Article 226 of the Constitution. No case of want of jurisdiction or excess of jurisdiction is established.

28. Finding as I do that Section 7 of the Appellate Act gives a specific and adequate legal remedy to the bank from the interim award of the tribunal made on 12th September 1951 I think that in para. No. 38 of the application under Article 226 of the Constitution there is suppression of material facts on which the rule for certiorari was moved. In case the bank thought that the remedy provided by Section 7 of the Appellate Act was not available or that that remedy was illusory the bank should have in the application for writ pointed out the non-availability or the illusory nature of the remedy.

29. For the foregoing reasons, I allow the preliminary objections, discharge the rule and dismissing with costs the application for the issuance of a writ of certiorari vacate the ad interim orders passed by this Court on 18th September 1951.

Eric Western, C.J.

30. I agree, for the reasons given by i my learned brother, that the order complained against is appealable as an interim award, and that we should decline to interfere on the short ground that alternative remedy exists under Section 7 of Act of 48 of 1948.


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