9911796707
TMI Blog1956 (3) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... t Dhan-bad of which Sri L. P. Dave, opposite party 1, was the sole member and chairman, and it was registered as Reference No. 6 of 1952. The list of these 1078 collieries was given in Schedule 1 of the Notification. On 26-9-1953, the Industrial Tribunal gave its award which in pursuance of Section 17 of the Act, was published by Notification No. S. R. O. 1896 dated 6-10-1953. The collieries owners filed an appeal against the said award to the Labour Appellate Tribunal on 6-11-1953. In August, 1953, while the matter was pending before the Industrial Tribunal, opposite party 2 to 83 made an application before it for an award under Section 33A of the Act on the allegation, as appears from the copy of the complaint petition produced before us on their behalf, that the petitioner has contravened the provisions of Section 33 of the said Act inasmuch as it has altered the conditions of their services to their prejudice and punished them in various ways without express permission of the Tribunal. It was alleged that majority of the workmen were not allowed to work on 13-6-1953 and all of them were refused work and wages since 15-6-1953, without any notice, and that wages to some and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the mischief of Section 33 of the Act. In reply to the above argument it is contended on behalf of the opposite party, firstly, that the petitioner was a party to the dispute referred to above and a notice of the reference was served on it and secondly, that no such objection was raised by it before the Industrial Tribunal and, as such, it could not be raised here for the first time on a writ application. 5. Section 33A of the Act, on its own terms, can have application only to a case where there has been a contravention by an employer of the provisions of Section 33 during the pendency of the proceedings before a Tribunal. The latter section prohibits an employer from doing certain acts during the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any Industrial dispute except under certain circumstance mentioned therein. That section, therefore, must be construed to contemplate that in crder that the above prohibition should apply to an employer, he must be a party to the proceedings in the Industrial dispute. It is not disputed before us that the petitioner was required in law, to have been made a party to the dispute so as to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot, and whether notice of it was served on it or not, are very controversial, and it is not possible for this Court to enter into those controversial questions on this writ application. Mr. B. C. Ghosh, counsel for the petitioner, has however argued that Item 17 of Schedule l referred to above is Angrapathra Colliery Katrasgarh P.O. and there is nothing to show that it belonged to the petitioner. He has submitted that there are various collieries at Angarpathra and the colliery of the petitioner is called National Coal Co. Ltd., Katrasgarh and not Angarpathra Colliery. In order to support this contention he has filed a supplementary affidavit and has put in several annexures to show that the petitioner was never referred to by any one as Angrapathra colliery Katrasgarh and all along it was described by all concerned as being National Coal Co. Ltd. But from appendices G and H of the report of the Indian Coal Grading Board, 1950, printed by the Government of India Press, Calcutta, which was produced before us by Mr. Ghosh, it appears that the petitioner's colliery is described therein as Angarpathra Colliery. It cannot, therefore, be said that Angarpathra Colliery Katrasgar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole of India and their workmen as a whole. The facts and circumstances referred to above leave a clear impression that the petitioner must have been a party to the original dispute and was liable to the consequences of Section 33A of the Act if it had contravened the provisions of Section 33 of that Act. Be that as it may, it is not possible for this Court to entertain such a controversial question of fact when it was not raised by the petitioner at the earliest opportunity before the Industrial Tribunal. 7. The facts disclosed in this case show that the petitioner submitted to the jurisdiction of the Tribunal and it has, therefore, been urged on behalf of the opposite party that it cannot raise the question of want of jurisdiction. On behalf of the petitioner, however, it has been argued that consent of the parties cannot give jurisdiction to a Court or a Tribunal if it has none. This proposition is undoubtedly true when there is inherent lack of jurisdiction in the Court or the tribunal. But where the want of jurisdiction has to depend upon proof of certain facts, then if those facts have not been raised and proved, a party cannot be permitted to raise a plea of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of a baker. He, therefore, was not capable of being one of the Justices of the peace to decide the case. This objection was, however, not taken before them. Ultimately, the justices of the peace convict ed the baker. He thereafter made an application before the High Court for issue of a writ of certiorari and raised the question of the incapacity of one of the justices of the peace. The application was refused on the ground that the question of jurisdiction of one of the Justices of the peace was not taken before them and, as such, the petitioner was disentitled from obtaining any relief. Channel J. who gave the leading Judgment observed as follows : A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall -- (a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be. In order, therefore, that the petitioner could be said to have contravened the provisions of Section 33 of the Act, it must have, during the pendency of the proceedings before the Tribunal, (a) altered, to the prejudice of the workmen concerned in the dispute, the conditions of service appli-cable to them immediately before the commence-ment of such proceedings or (b) discharged or punished, whether by dismissal or otherwise, any workman concerned in that dispute without the express permission in writing of the Tribunal. 10. The acts complained of were, no doubt, done without the permission of the Tribunal and during the pendency of the proceedings before it, The only question that then r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service nor does it amount to a punishment and, as such, it is not covered by any of the two clauses of Section 33 of the Act. In this connection he has drawn our attention to some of the decisions of the Industrial Tribunal and the Labour Appellate Tribunal. In 1951-1 Lab. LJ 502 (G) referred to above it was held that in the case of a lock-out the provisions of Section 33 would not attract as it does not alter the conditions of service. In 'Clive Jute Mills v. Their Workmen', 1951-1 Lab. LJ 663 (I) it was held that a lock-out declared by the management during the pendency of adjudication proceedings does not amount to contravention of Section 33 of the Act. This decision was affirmed by the Labour Appellate Tribunal in 'Jute Workers' Federation, Calcutta v. Clive Jute Mills', 1951-2 Lab. LJ 344 (J) and it was held that a lock-out did not attract the contravention of Clauses (a) and (b) of Section 33 of the Act. On behalf of the opposite party, on the other hand, leliance has been placed, on 'Luxmi Devi Sugar Mills Ltd. Deoria v. Ram Sarup', 1953 Lab. AC 244 (K) in which it was held that the conduct of the management (which came within the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR V42) (L), the only deterrent against a contravention by an employer of the provisions of Section 33 was the prosecution of the employer under Section 31, which was hardly any consolation for the workmen, and, therefore, this section was inserted in the Act to confer distinct benefits on the workmen and give some additional jurisdiction and power to the authorities mentioned therein. No such additional provision was made in the Act with regard to the commission of the offence of illegal lock-out as defined in Section 24 of the Act for which punishment was provided in Section 26, as already stated. It is, therefore, manifest that lockout was not contemplated by the Legislature to come within the scope of Clause (a) of Section 33 as altering the conditions of service or of Clause (b) of that section as discharging or punishing any workman. Thus on the finding of the Industrial Tribunal in the present case itself, the award made by it is wrong on the very face of it. 13. It has been contended on behalf of the opposite party that a wrong decision cannot be corrected by certiorari. It is true that this Court does not sit in appeal against the decision of the inferior Court or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued on behalf of the opposite party that against the decision of the Industrial Tribunal an appeal lay to the Labour Appellate Tribunal and the petitioner has already availed himself of that remedy by filing an appeal before the Labour Appellate Tribunal which is still pending and, as such, it could not move this Court under Article 226 of the Constitution. In support of this contention, reliance has been placed on a Bench decision of the Calcutta High Court in 'Radha Kissen v. Rajaram Rao', 1955 Cal 341 ( (S) AIR V42) (Q). That case no doubt supports the above argument though in that case even on merits the petitioner was found not be entitled to have a writ issued. Their Lordships, however, have given no reasons for taking the above view. In the case of 'Jackson v. Beaumont', (1885) 156 ER 844 (R) an appeal against the direction of the county court judge was pending at the time when the writ application was being heard. Even then writ of prohibition was issued in that case. In my opinion the pendency of the appeal before the Labour Appellate Tribunal against the award in question cannot prevent the petitioner from seeking a relief by way of issue of writ fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
