Port and Dock Employees, Assn. vs Govt. of India and Others

Sivaraman Nair, J.—The only question which arises in this writ petition is whether the third respondent was right in his order in I.T.I.O. No. 6/90 (Central), dated, 9.8.1991. In the above order the Industrial-Labour Court, Visakhapatnam, held that it has no jurisdiction to entertain the application for the reason that the name of the Presiding Officer constituted by the State has not been notified by the Central Government as prescribed under Rule 5 of the Industrial Disputes Act.

Section 7A constitutes Industrial Tribunals and provides that a Tribunal shall consist of one person only to be appointed by an appropriate Government. Section 10 deals with reference of disputes to Boards, Courts or Tribunals and provides that, if an appropriate Government is of the opinion that, any industrial dispute exists or is apprehended, it may at any time by order in writing refer a dispute to-

"(a) a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

(c) refer the dispute or any matter appearing to be connected with or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with or relevant, to the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule to a Tribunal for adjudication.

There are three provisions to Section 10(1). The third proviso was added with effect from 21.8.84 by Act 46 of 1982. That proviso reads as follows:

"Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government."

The third respondent has correctly understood the meaning of the duly amended proviso to authorise the Central Government to make reference to the Labour Court constituted by the State Government. He proceeds further to hold that the name of the Presiding Officer should have been mentioned, as, according to him, that is the requirement of Rule 5 of the Industrial Disputes Rules. That is in the following terms:

"5. Notification of appointment of Board, Court, Labour Court, Tribunal or National Tribunal; The appointment of a Board, Court, Labour Court, Tribunal or National Tribunal together with the names of persons constituting the Board, Court, Labour Court, Tribunal or National Tribunal shall be notified in the Official Gazette."

The third respondent has understood the above proviso to mean that, whenever the Central Government makes a reference to a Labour Court or a Tribunal, it shall mention the name of the Presiding Officer in terms of Rule 5. The assumption which underlines the above finding is that the Central Government, while making a reference to the Labour Court/Industrial Tribunal, constituted by the State, is on each such occasion, constituting a State Tribunal into a Central Tribunal If on the other hand, the reference is to a duly constituted Tribunal, which has been notified with the name of the Presiding Officer as required by law by the State Government, the reference to that Tribunal by the Central Government will be competent even in the absence of the name of the Presiding Officer. The third respondent held that it has no jurisdiction to entertain the dispute or pass orders therein only because of the absence of the name of the Presiding Officer. It shall be the anxiety of every authority, Tribunal or Court constituted under the Industrial Disputes Act, which is a welfare legislation, to effectuate the provisions thereof and the powers exercised thereunder. It shall not be the anxiety of such Courts or authorities to refuse jurisdiction on the basis of procedural baseless or an assumption that there is conflict between the Act and the Rules. Even if there is any such conflict, it is elementary that the provisions of the Act will prevail over the provisions of the subordinate legislation.

It appears to me that it is not difficult to read Rule 5 harmoniously with the provisions contained in third proviso to Section 10(1) of the Act, which I have extracted above. There shall necessarily be a difference between an appointment which is mentioned in Section 7A and Rule 5 and a reference which is mentioned u/s 10. Requirement of Rule 5 may be relevant only in the matter of appointment by notification of a Tribunal, Board, Labour Court or, National Tribunal. But each individual reference to that Labour Court or Industrial Tribunal or Board which is duly constituted and notified with the name of the Presiding Officer need not necessarily be by naming the Presiding Officer over again. If the Central Government is required by law to constitute the State Tribunal as a Central Tribunal over again, it may be possible to state that there shall be a notification of the Presiding Officer of the State Tribunal as the Central Industrial Tribunal as well. Once there is a duly constituted Labour Court or Tribunal, reference by the Government of India to that Tribunal as was made in this case would be sufficient to confer jurisdiction on such Tribunal or Labour Court to entertain and decide the dispute,

In this view, the order of the third respondent in I.T.I.D. No. 6/90 Central dated 9.8.1991 is unsustainable and the same is set aside. The third respondent is directed to entertain the dispute and proceed to decide the matter as expeditiously as possible.

These observations will apply to any reference which the Government of India would have made and in which the third respondent has refused to exercise jurisdiction.

The writ petition is accordingly allowed. No costs. Advocate fee Rs. 200/-.