Union of Workmen of R.S.N. and I.G.N. and Rly. Co. Ltd. vs The River Steam Navigation Co. Ltd. and Others

Thadani, C.J.—These are tow petns. by the same Union Galled the Union of the Workmen of the R.S.N. & I.G.N. & Rly. Co. Ltd. under Articles 226 & 227, Const. Ind. in which he has-prayed for writs of certiorari & prohibition in respect of an order passed by the Industrial Tribunal constituted in the person of Mr. I.P. Baruah.

It appears that a dispute arose between the petnr. & reap. 1, the River Steam Navigation Co. Ltd. & Indian General Navigation & Rly. Co. Ltd., a dispute which was referred by the Govt. of Assam u/s 10, Industrial Disputes-Act, 1947, by notification in the Assam Gazette, being No. GIM. 36/47, dated 22-2-1949, to the Dist. J. Lower Assam Districts who had been previously constituted a tribunal u/s 7 of the Act. While the dispute so referred was-pending before the Dist. J.L.A. Districts, the Govt. of Assam on 5.10-49 appointed Anr. tribunal u/s 7(1), Industrial Disputes Act; in the person of Sri I.P. Baruah Resp. 2. On 2-2-50, the Govt. of Assam, Resp. 3, published a notification under No. GIM. 86/47 which reads as follows:

Whereas the services of the Dist. & Ses, J. Lower Assam Districts, have ceased to be available for functioning as an Industrial Tribunal consequent to the-establishment of a separate whole-time Tribunal, now therefore, in exercise of the powers u/s 8(2) Industrial Disputes Act & in partial modification of this Department Notfn. No. GIM, 36/47, dated 22-Sh 1949, the Government of Assam are pleased to appoint Sjt. I.P. Baruah, B.L. retired Addl. Dist. & Ses. J to constitute the Tribunal to adjudicate upon the dispute between the River Steam Navigation & India General Navigation & Railway Company Ltd. Gauhati, & their workmen in place of the Dist. & Sen. J. Lower Assam Districts.

Sjt. I.P. Baruah heard the dispute in the absence of the petnr. who elected to remain absent, & in due course made an award, which was published in the Assam Gazette on 23-5-1950. The award was to be given effect to from 1-8-1950.

The grounds stated in the two petns. are as follows:

(1) For that the second reference of the dispute to Mr. I.P. Baruah is ultra vires of the powers of the Govt. of Assam & as such, Mr. I.P. Baruah had no jurisdiction to adjudicate & give award in the case.

(2) For that the circumstances contemplated in Section 8(2), Industrial Disputes Act, never arose & the services of the existing Tribunal in seisin of the dispute did not cease to be available consequent on the appointment of Anr. whole time Tribunal u/s 7(1), Industrial Disputes Act.

(3) For that the services of the Dist. T.L.A.D., never cased to be available & in fact, Mr. I. Rasul, the then Dist. & Ses, J., L.A.D is still working as such. He as the Tribunal, fixed the date for the peremptory hearing on 20-2-1950 &, kept a week exclusively for hearing this case. In a letter addressed by him to the Govt. of Assam, he expressed that he was available & willing to adjudicate the matter. With this determination, Mr. I, Rasul fixed the date on 20-2-1950 & Mr. I.P. Baruah also fixed the same date. It is, therefore, clear that Mr. I.P. Baruah could not have finished the case earlier then Mr. I. Rasul could.

(4) For that the statement in the Gazette Notin. of 2-2-1950 that the services of Mr. Rasul ceased to be available, is misconceived & not borne out by facts.

(5) For that Mr. I.P. Baruah has not the qualification to be appointed a member of a Tribunal u/s 7, Industrial Disputes Act.

(6) For that Mr. I.P. Baruah is neither H.Ct. Judge nor a Dist. J. nor even he had been a H. Ct. Judge or a Dist. J. as such, he is not qualified to be appointed a Tribunal u/s 7(3)(a), Industrial Disputes Act.

(7) For that he is also not qualified to be appointed a Tribunal u/s 7(3)(b) of the said Act as his age was many years more then sixty at the time of his appointment.

(8) For that the appointment of Mr. I.P. Baruah was therefore, illegal & ultra vires of the powers of the Govt. of Assam; as such, Mr. I.P. Baruah, had no jurisdiction to adjudicate the case & the award he gave is, therefore, Inoperative & not binding on the parties. Sections 15 & 19 Industrial Disputes Act, therefore, cannot come into operation & the Govt. of Assam was wrong in ordering to give effect to the award from 1-8-1950.

(9) For that the petnr. Union have the fundamental right to form an association & enjoy all the privileges & benefits of a, recognised Union. The Opposite Party 1 had all along refused to reply to any correspondence made by this Union to the Opposite Party 1 & had never responded to any demand made by the petnr. Union. It was one of the main issues of the dispute. The learned Tribunal held that neither in law nor in facts this Union was entitled to be recognised. That this has very heavily prejudiced the petnr. Union & its members by encroachment to their fundamental rights of association & the ancillary & analogous right & privileges.

(10) For that in spite of the fact that the Industrial Tribunal in a dispute between the Opposite Party 1 & its workmen in Bengal gave the award that the Puja advance was bonus & directed the Opposite Party I to give a bonus equivalent to one month''s basic salary to all workmen in all profit years, including the year 1948 & this award was given on 21-4-1949, Mr. I.P. Baruah, however, dismissed the claim of the bonus altogether to the great detriment of the interests of the petnr. Union to far so that while the workmen of the same Company in West Bengal will enjoy the Bonus, the workmen in Assam will have none.

(11) For that the pay soale approved by Mr. I.P. Baruah falls far below the one that was approved by the Tribunal of the West Bengal; so also dearness, allowances thus again leading to the discriminate privilege enjoyed by workers in Assam & West Bengal.

(12) For that on all other issues, Mr. I.P. Baruah has given award against the petnr. Union, while on the question of security of service, he refused to give any relief.

(13) For that Mr. I.P. Baruah was very much prejudiced against the petnr. Union & unfortunately took it to be a personal attack when his jurisdiction was questioned & his order would disclose how much irritated he was when he declared that the appointment of the Dist. & See. J.L.A.D., was illegal &. Mr. I. Rasul had no jurisdiction.

This prejudica in the mind of the Tribunal, Mr. I.P. Baruab, has led to a very onesided award to the great detriment of the interests of the petnr.

At the hearing, Mr. Ghose, learned Counsel for the petnr. stated that he did not propose to assail the award on the merits & addressed us on one point only, namely, whether Mr. I.P. Baruah was validly constituted as a tribunal. In other words, he confined himself to the first 8 grounds stated in the petn.

In assailing the constitution of the tribunal, Mr. Ghose has placed himself in a very diffioult position from the point of view of the applicability of Articles 22G & 227, Const. Ind. In my opinion, Article 226 contemplates a duly constituted person or authority, including, in appropriate cases, a Govt. & not any person, authority or Govt. not duly constituted. If a petnr. comes to Ct. with a case under Article 226 alleging that a person or authority, including, in appropriate cases, a Govt. is not duly constituted, be puts himself out of the purview of Article 226, Const. Ind. According to Mr. Ghose, Mr. I.P. Baruah not having been duly constituted as a tribunal was a usurper. A H.C. does not issue writs of high prerogative against usurpers of office. Its writs are issued only against duly constituted authority.

This view is supported by what is stated in Article 1482 of Halsbury''s Laws of England. Hailsham, 2nd Edn, namely,

Where grounds are made out upon which the Ct. might grant the writ, it will not do so where no benefit could arise from granting it & where the proceedings in the Ct. below are not merely voidable but absolutely void, as where an unauthorised person has purported-to act in a judicial capacity or where such proceeding have become void by the operation of a statute, certiorari shall not be granted.

Similarly, Cts. & tribunals contemplated by Article 227 must be Cts. & tribunals duly constituted, & not usurpers of office. On this ground'' alone we will be justified in refusing to act under the provisions of Articles 226 & 227 of the constitution of India. However, we propose to consider the ground 1 to 8 on the assumption that the challenge to the validity of the constitution of the tribunal has been abandoned.

The first ground is based upon the f act that originally the dispute was referred to the ''Dist. J., L.A. Districts, & it was later withdrawn from the Dist. J. & referred to Mr. I.P. Raruah. It is urged on behalf of the petnr. that the Dist. J., Mr. Rasul, was on the material date (2-2-50) functioning as a Dist. J., & it cannot, therefore, be said that he was not available for the purpose of deciding the dispute within the meaning of. Section 8(2), Industrial Disputes Act, Sub-section (2) of Section 8, Industrial Disputes Act is in terms:

Where a Court or Tribunal consists of one person only and his services cease to be available, the appropriate Government shall appoint Anr. independent person in his place, and the proceedings shall be continued before the person so appointed.

It is not correct to say, as Mr. Ghose for the petnr. has said, that so long as Mr. Rasul was functioning as a Dist. J. he must be regarded as available for the purposes of the Industrial Disputes Act. Nor is it correct to say that it is for the Ct. to decide whether the Dist. J, L.A.D., was available or not. As regards the first part of Mr. Ghose''s contention, it is sufficient to say that it does not follow that because a person is available for one purpose, he is also available for Anr. purpose. A Dist. J. has multifarious duties to perform, judicial & administrative, & his availability as a Dist. J. cannot necessarily be regarded as availability for the purpose of adjudicating upon a dispute under the Industrial Disputes Act. As to the 2nd part of Mr. Ghose''s contention, it is not for this Ct. to say whether the services of a tribunal have ceased to be available; it is for the appropriate Govt. to say so. In this case, it is quite clear from the notification published by the Govt. of Assam on 2-2-50 that it regarded the services of the Dist. & Ses, J. L.A. Districts, as not available.

Mr. Ghose has contended that the words used in the notification, namely, "consequent to the establishment of a separate whole time Tribunal" do not furnish clause for saying that the services of the Dist. & Ses, J., L.A. Districts, have ceased to be available. We do not think this is a reasonable interpretation of the notification. The fact that Govt. appointed a whole time tribunal in the person of Mr. Baruah shows that it regarded further functioning of the Dist. J., Mr. Rasul, as tribunal, undesirable from the point of the administration of justice. It is from this point of view that Govt. appears to have regarded the services of the Dist. J., L.A. Districts, as tribunal not being available. It makes no difference that the Dist. J. Mr. Rasul, wrote to the Govt. of Assam that he was available. It was not for the Dist. J. to Bay whether he was or was not available for performing duties other then his duties as a Dist. J. It is for the Govt. to say so.

It was next argued by Mr. Ghose that the withdrawal of the dispute from the Dist. J. & placing it before Mr. I.P. Baruah is not contemplated by any provision of the Industrial Disputes Act. Now, apart from the question of the applicability of Section 21, General Glauses Act, Sub-section (2) of Rule 8, Industrial Disputes Act, expressly lays down that the proceedings shall be continued before the person so appointed. In this case, it is common ground that the proceedings were continued by Mr. Baruah.

The rest of the grounds, aside these pertaining to the merits, relate to the qualifications of Mr. Baruah for appointment as tribunal. We have satisfied ourselves that Mr. I.P. Baruah was fully qualified to be a member of the tribunal u/s 7, Industrial Disputes Act. Apparently, Mr. Ghose was not aware that Mr. Baruah had been a Dist. J. At the hearing, a notification was produced before us which showed that Mr. Baruah had at one time acted as a Dist. J. It is true that he has retired as an Addl. Dist. J, but it cannot be said that he has not been a Dist. J. The fact that he was over the age of 60 years at the date of his appointment is wholly immaterial. It is true that the superannuation age of a H.C. Judge is 60 years, but the age of 60 years is not a qualification for the appointment of a H.C. Order Judge. It is a disqualification for a Judge to continue as a H.C. Order Judge when he attains the age of 60. Moreover, Mr. Ghose has overlooked the provisions of Section 9, Industrial Disputes Act, which lays down that:

No order of the appropriate Government appointing any person as a member of a Board, Court or Tribunal, shall be called in question in any manner.

Our conclusion then is that the tribual in the person of Mr. I.P. Baruah was duly constituted.

Mr. Bose for the opposite party has contended that the petns. under Articles 226 & 927 of the Constitution are misconceived; that writs of certiorari & prohibition cannot be granted in matters arising out of an award passed under the Industrial Disputes Act, the award not being a determination of a judicial or quasi-judicial body. This aspect of the case, however, is concluded by the decision of the majority of their Lordships of the section of. in the case of Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. & the Bharat Bank Employee''s Union AIR 1960 SC 188, where their Lordships held that an Indus trial Tribunal is a judicial body, & that its award is a determination within the meaning of Article 136, Const. Ind.

It was next contended by Mr. Bose that in any case a party should not be permitted to move this of under the provisions of Articles 226 & 227, Const. Ind. where an aggrieved patty has a right of appeal on facts & law, as in this case. It is not necessary to consider this aspect in a present proceedings in the absence of any Rules amed by this Ct. under Articles 226 & 227 of the Constitution. On an appropriate occasion, we will express our views not only on this aspect but also upon the limits within which a H.C. will act in the exercise of its jurisdiction under Articles 226 & 227 of the Constitution. In this Case, we ate content merely to record the fact that it is not the case of the petnr. that the tribunal, if duly constituted, had no Jurisdiction or had exceeded its jurisdiction or had acted irregularly in the exercise of its jurisdiction.

In the result the petns. are dismissed with costs. Hearing fee is fixed at Rs. 100 one set.

Ram Labhaya, J.

I agree with my Lord the Chief Justice in the conclusion he has reached in this case. I wish, however, to add a few words.

The petnr. in both the cases is what is described as the Union of the Workmen of the RSN & IGN & RLy Co. Ltd. Gauhati, Assam. A dispute arose between the Union & the River Steam Navigation Co., Ltd., Opposite Party 1, as to the conditions of service of the members of the Union. The dispute was referred to the Dist. J., L.A.D. by a notification of the Govt. of Assam No. GIM. 36/47 dated 22.2-1949. The proceedings continued in the Ct. of the Dist. J., L.A.D., for about a year & while yet these proceedings were pending, the Govt. of Assam appointed Mo. I.P. Baruah to function as a Tribunal u/s 7(1), Industrial Disputes Act. Certain industrial disputes were referred to him. On 2.2 1950, the Govt. of Assam acting in the exercise of powers conferred on it by Section 8(2), Industrial Disputes Act, & in partial modification of the Notification No. GIM. 36/47 dated 22-2-1949 appointed Mr. I.P. Baruah, retired Addl. Dist. & Ses, J. to constitute the Tribunal for adjudicating the dispute between the Union & the Opposite Party 1 in place of the Dist. J., L.A.D.

It has been contended before us on behalf of the petnr. that the award made by Mr. I.P. Baruah is a nullity as Mr. Baruah had no jurisdiction under the Industrial Disputes Act to make the award. Two reasons have been given in support of this contention. It is pointed out first that Mr. Baruah was not qualified to be appointed tribunal under Rule 7 of the Act. The 2nd ground urged was that the services of the Dist. J. never ceased to be available & therefore the conditions under which the Provincial Govt. could exercise its powers u/s 8 did not exist. The virtual withdrawal of the dispute from the Dist. J. & its transfer to Mr. Baruah is challenged as an act in flagrant disregard of the provisions contained in Section 8 of the Act. In other words, the contention is that the Provincial Govt. has not validly appointed Mr. Baruah to constitute a Tribunal u/s 7 of the Act; nor has the dispute been validly referred to him u/s 8. It is therefore, argued that the notifications from which he purported to have derived authority did not confer on him any power to adjudicate upon the dispute which he disposed of by his award. This is being challenged by two petns. under Articles 226 & 227, Const Ind.

It seems to me fairly obvious that no relief can be allowed to the petnr. under Article 227. By virtue of the authority conferred on the High Courts by this Article a H.C may exercise powers of superintendence over all Cts. & tribunals throughout the territories over which the H.C has jurisdiction. All Cts. & tribunals within the territorial limits of the jurisdiction of a H.C. are thus made subject to the supervisory jurisdiction of the H.C A tribunal appointed under the Industrial Disputes Act would no doubt be a tribunal within the meaning of the word as used in Article 237. The power of superintendence, therefore, could be exercised in respect of the acts of the tribunal. This position is not disputed & in fact there is no room left for controversy on this point as the matter is concluded by a decision of their Lordships of the S.C. reported in The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, The word tribunal occurs in Article 136 & also in Article 227 & it must be given the same meaning in both the Articles. This, however, does not solve the difficulty. The question raised by the petnr. is that the Provincial Govt. has appointed a wrong person to constitute a tribunal under the Act & in referring the dispute in this case to him after his appointment, it has also contravened the provisions contained in Section 8, Industrial Disputes Act. The contention challenges the validity of certain acts of the Provincial Govt. & not that of the tribunal. If there is any error in the appointment or there was a subsequent error in the reference of this particular dispute to Mr. Baruah, the errors are of the Provincial Govt. & not of the tribunal. These alleged errors, if committed, were committed before Mr. Baruah started functioning as a tribunal. Under Article 227, powers of superintendence can be exercised only over the Cts. & tribunals. The learned Counsel has not contended that the Provincial Govt. when acting u/s 7 or 8 of the Act is a tribunal within the definition of the word ''tribunal'' occurring in Article 287 of the Constitution.

The learned Counsel has, however, eon-tended that the notification of the Provincial Govt. by which the dispute between the petnr. & the Opposite Party 1 was referred to Mr. Baruah amounted to a transfer of the case from one tribunal to Anr. & this transfer of the case would be an act which was subject to judicial scrutiny by the H.C under Article 227. The argument apparently is falacious. If the Provincial Govt. acting under Sections 7 & 8 cannot be regarded as a tribunal subject to H.C for the purposes of Article 227, the notification by which the dispute in question was referred to Mr. Baruah u/s 8 on the ground that the services of the Dist J., L.A.D. had ceased to be available would not be open to challenge before the H.C. The Provincial Govt. when it acts u/s 8 is not a superior tribunal directing transfer of a case from one subordinate tribunal to Anr. . It is itself admittedly not subject to the supervisory jurisdiction of the H.C which Article 287 confers on it. Its order may be erroneous. It may have made a mistake in appointing Mr. Baruah as a tribunal. It may also have gone wrong in referring the dispue pending before the Dist J. to him u/s 8 In both cases, the acts of the Provincial Govt. are nod open to challenge under Article 227.

Section 7 of the Act authorises the appropriate Govt. to constitute one or more Indus, trial Tribunal for the adjudication of industrial disputes. Section 8 authorises the appropriate Govt. to fill vacancies when the services of the Chairman of a Board or of the chairman or other member of a Ct. or tribunal cease to be available. Section 9 provides that no order of the appropriate Govt. appointing any person as a member of a Board, Ct. or tribunal shall be called is question in any manner. Section 9 covers appointments both under Sections 7 & 8 & it also forbids interference with these orders. In other words, all orders of the appropriate Govt. under Sections 7 & 8 are clothed by the statute with the attribute of finality. The learned Counsel has urged that Section 9 of the Act is void & is of no authority inasmuch as it conflicts with Article 227 of the Constitution.

I do not think there is any such conflict. Section 9 clearly indicates that the orders of the Provincial Govt. by which tribunals are constituted & vacancies, when they occur, are filled are not on the same level with the orders of the tribunal & have to be dealt on a distinct basis. Article 227 may be utilised for correcting errors of the tribunal when it has started functioning but not for interfering with the orders appointing tribunals or members thereof. In this view of the matter there is no conflict between Section 9 of the Act & Article 227, Const. Ind. In fact, the existence of this provision lends support to the view taken above that orders passed under Sections 7 & 8 cannot be regarded as orders of any Ct. or tribunal subject to the supervisory jurisdiction of the H.C. under Article 227.

The next question is whether in the Circumstances of the case relief can be afforded to the petnr. under Article 226 of the Constitution. High prerogatives, writs in the nature of certiorari & prohibition have been prayed foe in the alternative. Very recently their Lord-ships of the S.C. had to consider the question as to when & under what circumstances writs-in the nature of certiorari may issue. Their Lordships in Province of Bombay Vs. Kusaldas S. Advani and Others, have laid down that a writ of certiorari will lie to control a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, provided that on a true construction of the law under which it acts it can be said to be a quasi-judicial body entrusted with quasi-judicial functions. In the words of the learned Chief Justice whenever any body of person having legal authority to determine questions affecting the rights of subjects, & having the duty to act judicially, act in excess of their legal authority, a writ of certiorari may issue. According to him it would not be correct to say that whenever there is a determination of a fact which affects the parties, the decision is quasi-judicial The test laid down by him is that the law under which the Ct. is making a decision should itself require a judicial approach. It follows that a certiorari will not lie to correct errors of a statutory body which is entrusted with purely administrative functions. The question that then arises for decision in this case is whether the orders of the Govt. appointing Mr. I.P. Baruah to constitute a tribunal & then referring, the dispute in this case to him acting u/s 8 are mere administrative acts or whether they can be regarded as acts of a quasi-judicial body which was required by statute to determine the question of appointments under Sections 7 & 8 in a quasi judicial manner. The learned Counsel on either side have not been able to cite any apt precedent that may cover the case. Section 7 requires certain minimum qualifications for appointments under it. Even when a vacancy u/s 8 is created, the person appointed is to fulfill the qualifications that Section 7 requires. The vacancy is created when the services of a member of the tribunal cease to be available. In making appointments under Sections 7 & 8, the Provincial Govt. has to comply with the provisions contained in Sections 7 & 8. But appointments under Sections 7 & 8 do not seem to involve any determination affecting the rights of the subjects. The tribunal when appointed baa to deal with rights. When the Govt. is making an appointment there is no lis in the sense of a dispute between the two parties. The, Act does not require the Provincial Govt. to hold a judicial inquiry for making the appointment. It has, however, to see that there is an occasion for making an appointment & the person appointed does possess the qualifications required by law.

The question is not free from difficulty. It is, however, not necessary in my opinion to give any decision on it as on petnr.''s own showing an action would be a more appropriate remedy in a case of this kind. If the tribunal by the reason of the invalidity of its appointment or by reason of the invalidity of the reference had no jurisdiction, the award would be a nullity & its operation could be avoided by a suit. That this remedy is available to the pstnr. is not denied. Certiorari may not be granted where proceedings are absolutely void as where an unauthorised person has purported to act is a judicial capacity vide para. 1483, Halsbury''s Laws of England (vol. 9). The award has not been assailed on any ground except the absence of jurisdiction in the tribunal which made the award. Without determining, therefore, whether the impugned orders of the Provincial Govt. are liable to be quashed & justify grant of high prerogative writs in the nature of certiorari & prohibition, the petn. may be disposed of on the ground 4k-t a more appropriate & effective remedy exists which the petnr. can avail of, vide 2 Labour Law journal 1219. The allegations made in the petn. raise question of fact. An inquiry into these facts is necessary before the orders of the Govt. can be quashed or treated as a mere nullities. An action is therefore, a more appropriate remedy.

It may be remarked that though Article 226 confers very wide powers on the High Courts, these powers have to be exercised very sparingly. The Article is not intended to provide an additional or an alternative remedy where Anr. effective remedy is available. The remedy under this Article may not be utilised as a substitute for the usual mode of redress by an action particularly when an inquiry into facts is involved. The extraordinary jurisdiction of the H.C. under the Article may be invoked in case where no adequate remedy is available to the aggrieved party & application of Article 226 alone affords a convenient & effective mode of redress.

It has been urged on behalf of the Opposite Party 1 that the petnr. has also got the right of appeal to the appellate tribunal. The award in this case was admittedly published after the Act conferring a right of appeal to parties aggrieved by an award under the Industrial Disputes Act came into fore. The appellate tribunal under the new Act could not be constituted at once. It took some time. The applt admittedly had the right of appeal under the Act, but it could not file the appeal in time as the appellate tribunal was not in existence. It therefore, invoked the jurisdiction of this Ct. under Articles 226 & 227, Const. Ind. The appeal now would be time barred. The appellate tribunal, however, has got powers to extend time if it is satisfied that the applt. 1 was prevented by sufficient causes from filing the appeal in time. The circumstances in this case are such that the appellate tribunal may be induced to grant necessary extension. But as the petnr. cannot now appeal as of right, it would not be fair to refuse relief on this ground. This, however, does not affect the result as the remedy by an action is certainly available to the petnr.

For the reason given above, I agree that the petn. be dismissed.