Aurangabad Mills Ltd. vs Industrial Court

This Writ Petition is directed against the award of the Industrial Court, Aurangabad, dated the 25th April 1950. The Industrial Court was appointed under S. 2 of the Hyderabad Trade Disputes Order of 1351 F.: (1942 A. D.) by Notification No. 19, dated 13-8-1940 A. D.

The main ground on which the award is impugned is that the sole Member and Chairman of the Industrial Court (Mr. Gaziuddin) who conducted the enquiry could not complete the same as he was transferred from Aurangabad to some other place; that his successor to the office of the Nazim, Sadar Adalat (Sessions Judge) Mr. Chandrakant Rao Godse who conducted the proceedings of the Industrial Court and completed the same and delivered the award under consideration, was incompetent to do so as he was not appointed to act as the Member and Chairman of that Court under S. 2(c) of the Trade Disputes Order.

The brief facts necessary for the decision of the said point are that Government in the Labour Department appointed (by Notification No. 19 dated 13-8-1949 A. D. ) an Industrial Court for the decision of the dispute, in question. The Notification runs as follows:

In exercise of the powers conferred by S. 2(a) of the Trade Disputes Order of 1351F an Industrial Court consisting of Sessions Judge Aurangabad, is hereby appointed in connection with the trade dispute between the Management and the workers of the Aurangabad Mills Ltd., and the dispute is hereby referred for adjudication to the said Court (Sd/- Labour Secretary).

The Labour Secretary to the Government wrote a letter addressed to the Sessions Judge, Aurangabad, stating that in pursuance of the said Notification, Government have appointed him as the sole Member of the Industrial Court. It is admitted by both the parties that at the time the letter was communicated to the Sessions Judge at Aurangabad, Mr. Gaziuddin was the Sessions Judge there. It is stated that he conducted the enquiry for some time. Subsequently he was transferred on 21-1-1950 to some other Sessions Division & Mr. Chandrakant Rao was posted as the Sessions Judge at Aurangabad.

In this connection Mr. Raghavan, the learned Advocate for the petitioner argued that the said Notification No. 19 dated 13-8-1949 A. D., was not in consonance with the provisions of S. 2 of the Hyderabad Trade Disputes Order and that it was irregular. He argued that appointing the Sessions Judge, Aurangabad, as Judge of the Industrial Court under the said Order is not the proper form of creating an Industrial Court. He has drawn our attention to the provisions of S. 2(b) of the said Order which lays down that an Industrial Court will consist of one of more Members one of whom will be the Chairman. In view of the wording, Mr. Raghavan argued that some particular person should be appointed as the Member or Chairman constituting the Industrial Court of Aurangabad. What he means is that the Notification should have named the person whom Government wanted to act as the Judge of the Industrial Court for the purpose of the said Order, and if it was necessary to give a description of the said person, and if he was the Sessions Judge, he could have been so described.

We find that there is considerable force in the said argument. Keeping in mind the wording of S. 2(b), it is clear that the Industrial Court should consist of one or more members which means one or more persons who will be called upon to work as the Members of Industrial Court.

Mr. Raghavan argued that after the transfer of Mr. Gaziuddin on 21-1-1950 a fresh order appointing Mr. Chandrakant Rao as the sole Member of the Industrial Court was necessary under the provisions of S. 2(c) of the said Order. Section 2(c) reads as follows:

If before the termination of the proceedings of the Court a vacancy occurs in the place of any Member then such vacancy will be filled in by the order of the President in Council, and a new Court so formed will begin the proceedings from the stage at which the prior proceedings had stopped due to the occurrence of the said vacancy.

It is common ground that no order under the said S. 2(c) was passed by the President in Council appointing Mr. Chandrakant Rao as the Industrial Court in place of Mr. Gaziuddin, but he (Mr, Chandrakant Rao) continued the proceedings and ultimately delivered the award under consideration. Mr. Sastri the learned Government Advocate argued that no fresh order with regard to Mr. Chandrakant Rao was necessary under S. 2(c) because the Government had appointed the Sessions Judge, Aurangabad, as the Industrial Court. Government have not appointed any ''particular person'' as the sole member constituting the Industrial Court but have appointed the Sessions Judge as the Industrial Court and when the appointment of a member is not by name but by virtue of office, the successor" in office will automatically be entitled to continue the proceedings. He has drawn our attention to Ex. 9 being a copy of the letter from the Labour Secretary Government of Hyderabad, addressed to the Sessions Judge, Aurangabad, dated 13-2-1950 and argues that when the matter was referred to Government, the Government were of the view that no fresh orders were necessary under S. 2(c) of the said Trade Disputes Order. The said letter states that:

Under Notification No. 19 dated 13-8-1949 an Industrial Court consisting of the Sessions Judge, Aurangabad, was set up to adjudicate a dispute between the Management and workers of the Aurangabad Mills Ltd., and no ''Officer was appointed as a Member'' of the Industrial Tribunal ''by name'', and as such, the case before the Industrial Court, can be heard and disposed of by the Sessions Judge at Aurangabad.

We are clearly of the opinion that the interpretation of S. 2 (c) given in the said letter with regard to the Constitution of the Industrial Court is erroneous. The Hyderabad Trade Disputes Order in many respects corresponds with the provisions of the Industrial Disputes Act 1947. Section 2 lays down as follows:

(a) The President in Council may constitute an Industrial Court and refer, to it any trade dispute or disputes for adjudication. (b) The Industrial Court shall consist of one or more Members one of whom shall be its President. Every Member of the Industrial Court shall be a person who is not connected with any undertaking and the President shall be a person who is or has been a Judge of a High Court or eligible for being appointed a Judge of such Court.

(c) If any vacancy in the Membership of the Court arises before the Court has completed its work such vacancy shall b" filled up by the President in Council and the proceedings shall be continued before the Court so reconstitutes from the stage at which they were when the vacancy occurred.

Section 7 of the Indian Industrial Disputes Act 1947 reads as follows:

7 (1) The appropriate Government may constitute one or more Industrial Tribunals for the adjudication of Industrial disputes in accordance with the provisions of this Act.

(2) A tribunal shall consist of such number of members as the appropriate Government thinks fit. Where the tribunal consists of two or more members, one of them shall be appointed as the chairman.

(3) Every member of the tribunal shall be an independent person:

(a) who is or has been a Judge of a. High Court or a District Judge, or (b) is qualified for appointment as a Judge of a High Court:

Provided that the appointment to a Tribunal of any person not qualified under part (a) shall be made in consultation with the High Court of the Province in which the Tribunal has or is intended to have, its usual place of sitting.

Thus comparing the Hyderabad Trade Disputes Order with the corresponding provisions of the Indian Industrial Disputes Act 1947 it is clear that it is a "person" who should be appointed as the sole Member of the Industrial Court, and the appointing authority should select such a person who is eligible under the terms of S. 2 (b) of the Trade Disputes Order to be the Chairman or Member of the Industrial Court. Hence, at the time of the appointment the appointing authority should come to the conclusion that the person who is to be appointed to constitute the Industrial Court is a person who is not connected with any undertaking and that he is or has beer, a Judge of a High Court or eligible for being appointed as Judge of a High Court. The letter under consideration when it presumes, that the industrial dispute in question can be disposed of by any Sessions Judge at Aurangabad obviously and palpably overlooks the fact that every Sessions Judge at Aurangabad need not be a person who is not connected. with any undertaking or need not be necessarily a person who is eligible for being appointed as a High Court Judge. Thus, the appointing authority has got to apply its mind with regard to these qualifications before appointing a person to constitute an Industrial Court. It does not appear from the letter under const deration that such a test was thought necessary. The provisions of clauae 2 (b) of the said Order enjoin that if any vacancy in the Membership of the Court arises before the Court has completed its work, such vacancy shall be filled up by the President in Council. This clearly means that whenever a person who is a member of the Industrial Court or in the case of a sole Member the Chairman of an Industrial Court vacates his Membership or Chairmanship of the Court before the termination of the work, it is necessary that the President in Council shall by his order appoint some other person as the Industrial Court. If the interpretation contained in the letter under consideration is to be accepted, it would defeat the very intention and purpose of the clause by inserting an abstract office or officer such as the Sessions Court or the Sessions Judge. We are clear in our mind that the interpretation sought to be made out in the letter under consideration cannot be entertained. We are fortified in our view by the ruling reported in ''Abboy Reddiar v. The Collector of Chingleput'', 1951-2 Mad L J 402, in which it has been held that the arbitrator who is appointed under S 19(2) of the Defence of India Act is a persona designata, He is appointed as a persona designata and hot as a Court. In ''Abdul Wahid v. Diwanji Abdul Khader'', 1947-1 Mad L J 207, it was held that the person appointed to hear the appeals under the Madras Buildings (Lease and Rent Control Act) was appointed as a persona designata and not as Court. The point has been made amply clear in ''United Commercial Bank Ltd. v. Their Workmen''. AIR 1951 S C 230. His Lordship Justice Kania, the late Chief Justice of India has observed as under:

It is therefore obligatory on the part of the Government to notify the composition of the Tribunal and also the names of the persons constituting the same. In respect of a Tribunal which is entrusted with the work of adjudicating upon disputes between employers and employees, which have not settled otherwise, this provision is absolutely essential.

He further states:

It cannot be left in doubt to the employers or the employees as to who are the persons authorised to adjudicate upon their disputes. This is also in accordance with the notification of appointments of public servants discharging judicial or quasi-judicial functions. The important thing therefore to note is that the Members forming the Tribunal and the ''names of the Members'' have both to be notified in the official gazette for the proper and fair constitution of the Tribunal.

The portion underlined (here in single quotation) in the above extract will clearly show that the name or names of the Members constituting Industrial Court should clearly be notified for the proper and valid constitution of the Industrial Court. As Mr. Chandrakant Rao was not so notified to act as the sole Member of the Industrial Court at Aurangabad, he cannot be said to have been properly and validly appointed as an Industrial Court. In the ruling referred to above, the question for consideration was with regard to the application of the provisions of S. 7 of the Industrial Disputes Act corresponding to S. 2, Cl. (c) of the Hyderabad Trade Disputes Order. There it was the case of the filling up the vacancy of one of the Members of the industrial Tribunal and the fact that the Government did not fill up that vacancy was held to be fatal *o the proper constitution of the Court. In the case before us it was absolutely necessary to exercise the Dowers conferred under 2(c) of the said Order and issue a fresh Notification naming the person who should work as the next Chairman of the Industrial Court. It was held that mere consent cannot give jurisdiction in such a case as it is a condition which goes to the root of the jurisdiction. Again at page 237 column (1) Kania C. J. has observed as follows:

No appearance or consent can give jurisdiction to a Court of limited jurisdiction which it does not possess.

He further states:

the absence of a condition necessary to the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect..............when the question is of jurisdiction of the Tribunal to make the award..............no question of acquiescence or consent can affect the decision.

It will be clear from the above that the appointment of the sole Member and Chairman should be by name and not by office and if there is a vacancy it should be filled up by a fresh Notification.

Mr. Sastri the learned Government Advocate argued that the principle laid down in the above ruling was good in view of the fact that under the Industrial Disputes Act 1947, rules have been framed and that R. (5) thereof provides that the appointment of a Board, Court or Tribunal, together with the names of the persons constituting the Board. Court, or Tribunal, shall be notified in the Government Gazette. He argues that as no such rules have been framed under the Hyderabad Trade Disputes Order, the above ruling will not be applicable. We do not agree. Even in the absence of rules, the correct interpretation of S. 2(c) of the Hyderabad Trade Disputes Order is that when a vacancy occurs in the Membership of the Court, the President in Council should appoint a fresh person to constitute the Industrial Court and the principle laid down in the ruling as to the naming of the person will hold good.

There was some argument as to whether the initial reference made by Government was vague and Mr. Sastri the learned Government Advocate cited a number of rulings showing that under the circumstances the reference cannot be said to be vague. But as we are deciding the case on the question of jurisdiction, it is not necessary to go into that point.

In conclusion, we are of the opinion that Mr. Chandrakant, Rao, who delivered the judgment under consideration had no jurisdiction and his judgment is therefore quashed.

Judgment quashed.