Somanth Iyer, J.
(1) By a Notification made by the Government on November 25, 1959 under the provisions of Section 10(1)(d) of the Industrial Disputes Act, what the Government thought was an industrial dispute, was referred by it to the Industrial Tribunal over which Mr. D. H . Chandrasekharajah was then presiding. The term of office of Mr. Chandrasekharajah expired on July 4, 1960, according to the petitioners. By a Notification issued under S. 7-A of the Act, Mr. Malimath , a retired Judge of this Court was appointed to preside over that Tribunal. The hearing of the reference which was pending before Mr. Chandrasekharaijah was continued by Mr. Malimath.
(2) On behalf of the ten employers who constituted the second party in that reference, a request was made that certain issues, which according to the petitioner were issue of law, should in the first instance, he decided. One Mr. Hanumantiah who is a Legal Practitioner at Tumkur, was permitted with the consent of the employees to represent the employer. This request which was made on behalf of the employers appears to have been granted with the result that the reference was posted to August 20, 1960. On that date, Mr. Hanumanthaiah appearing on behalf of the employers was absent. The Tribunal held issues 2 and 3 to be the only issue of law and decided those issues against the employers whose representative was absent.
(3) When the case again came up before the Tribunal on October 8, 1960, Mr. Hanumanthaiah made a representation to the Tribunal that the forth issue was also an issue of law and that the Tribunal should hear that issue and decide it before proceeding to decide the other issues in the case. The Tribunal refused to accede to that request. He declined to try issue No. 4 as an issue of law on two grounds.
(4) The first was that on the date to which the matter was posted for trial of issues of law, Mr. Hanumanthaiah, the representative of the employers was absent. The Tribunal obviously thought that it was the duty of Mr. Hanumanthaiah to be present on August 20, 1960 and make a representation to the Tribunal that the forth issue was also an issue of law and should be tired and decided in the first instance. The neglect on the part of Mr. Hanumanthaiah to do so disentitled, in the opinion of the Tribunal, as we read its order, to again ask the Tribunal on October 8, 1960 to try the forth issue and decide it in the first instance.
The other ground on which the Tribunal declined to decide the forth issue in the first instance was that issue did not raise a pure question of law but raised a mixed question of law and fact.
(5) It is against the order made by the Tribunal in that way that this Writ petition is directed. The petitioners ask that the order made by the Tribunal should be quashed by certiorari and that a writ of prohibition should issue restraining the Tribunal from proceeding with the case. The petitioners also ask for an order directing the Tribunal to decide the forth issue in the first instance before proceeding to try the other issues in the case.
(6) Mr. Ullal appearing on behalf of the petitioners urges that the forth issue raised a question of jurisdiction which the Tribunal was bound to decide in the first instance. He has urged that that issue raises the question whether the dispute referred by the Government under S. 10(1)(d) was or was not an industrial dispute.
The ground on which the petitioners contend that the dispute is that it is a dispute referred to the Tribunal by the Government at the instance of workman who had not support of a substantial section of employees. Mr. Ullal had to admit that this question as to whether the dispute was or was not an industrial dispute is not a pure question of law, but is a mixed question of law and fact, as rightly held by the Tribunal. But what he contends is that that question, although a mixed question of law and fact, being a jurisdictional question, the Tribunal was bound to decide it first although it was necessary for it to decide a question of fact for that purpose. The question of fact, it is urged , which the Tribunal had to decide was a jurisdictional fact and was therefore one which the Tribunal could not decline to decide in the first instance.
(7) It seems to me that the application for a writ of prohibition cannot succeed. Firstly, the petitioners neglected to avail themselves of the opportunity which was afforded to them on 28-8-1960 on which date it was open to them top urge that the fourth issue also should be decided in the first instance as a preliminary issue. The matter was posted to that date to decide the issues of law which arose in the case. It was so posted by Mr. Chandrasekharaiah when he was presiding over the Tribunal. It is admitted that Mr. Chandrasekharaiah did not state when he posted the matter to August 20, 1960, that the fourth issue was an issue of law and would therefore be decided in the first instance. It is clear that the order made by Mr. Chandrasekharaiah was only to the effect that pure questions of law should be decided in the first instance. It has not been made out that he also directed that the fourth issue, although it raised a mixed question of law and fact, should also be decided in the first instance.
(8) However that may be, if the petitioners wanted the Tribunal to decide the fourth issue as a preliminary issue, it was their clear duty to be present in Court on August 20, 1960 either by themselves or through their representatives and to request the Tribunal to decide the fourth issue also in the first instance, if they were entitled to the grant of that request. On that date of hearing petitioners and their representatives were both absent. The Tribunal took the view that the only issues which were issues of law were issues 2 and 3 and the finding of the Tribunal on those issues was against the petitioners. The Tribunal did not consider that the fourth issue was also an issue which had to be decided in the first instance. It accordingly posted the matter for further proceedings, to the next date of hearing.
(9) If the petitioner threw away the opportunity which they had on August 20, 1960 to insist upon the fourth issue also being tried as a preliminary issue, it seems to me that if on a subsequent date the petitioner's representative again approached Tribunal for decision on the fourth issue as a preliminary issue, the Tribunal, it is clear, was not bound to accede to that request. The petitioners cannot, therefore, properly represent that they have any grievance in respect of the order now made by the Tribunal that they fourth issue would be tried along with the other issues in the case since it was their own indulgence in the prosecution of the matter that was responsible for the Tribunal to come to the conclusion on August 20, 1960 that only issues 2 and 3 were the issue that should be decided in the first instance.
(10) However that may be, I am not also satisfied that the petitioners have any absolute right to insist upon the Tribunal deciding in the first instance a mixed question, although that question is one which relates to its jurisdiction, and to proceed with the matter entrusted to it under Section 10(1)(d) of the Act.
(11) It is true that a Tribunal before whom the jurisdiction to proceed with the matter is challenged, has the discretion in an appropriate case to try a jurisdictional fact on which its jurisdiction depends. It is well settled law that way to decides it wrongly, that decision is justifiable in a superior Court which has the power to issue a writ of prohibition restraining the Tribunal from further proceeding with the matter.
(12) The decision in Kaleswari Hand loom Factory v. State of Madras , AIR 1958 Mad 108 on which Mr. Ullal depends in support of this writ petition is a case in which that principle was enunciated. It does not decide that if a Tribunal declines to go into a mixed question of law and fact although it is a decision on that question on which its jurisdiction depends, a writ of mandamus which is in effect the writ for which the petitioners have prayed for in this case could issue compelling the Tribunal to decide that mixed question of law and fact in the instance.
The ordinary rule which is well settled is that a prohibition will not issue unless the defect of jurisdiction is apparent and it is clear that the Tribunal which is proceeding with the matter before it has no jurisdiction to do so. It is only in a case where the defect of jurisdiction is clear and obvious that a prohibition is discretionary.
(13) The authoritative enunciation of this principle is to be found in Halsbury's Laws of England, Simonds Edition, Volume 11, paragraph 214 which reads:
214. 'When prohibition of right. Where the defect of jurisdiction is apparent on the face of the proceedings and the application is made by a party, the order goes as to right and is not a matter of discretion. Smallness of the matter in dispute and delay on the part of the applicant are not in themselves grounds for a refusal. The order, however, cannot be claimed as of right unless the defect of jurisdiction is clear, nor will it, as a rule, be granted where an amendment in a plea will cure the alleged defect. It will not be granted where a specific remedy is given by a statue which is effect substitutes the statutory remedy for the remedy by prohibition.'
That being the principle governing the issue of writ of prohibition, the petitioners are not, in this case, entitled to a writ of prohibition although they have prayed for one, since, admittedly the question as to whether the Tribunal has, or, has not jurisdiction to proceed with the reference before it, depends upon an investigation into question of fact, namely, whether the dispute referred by the Government is or not an industrial dispute.
(14) Now, there is another principle which incorporates an equally well settled rule. That rule is that if a proceeding is pending before a Tribunal and its jurisdiction to proceed with that proceeding is challenged, the only stage at which prohibition will issue is the stage at which prohibition will issue is the stage when the Tribunal decides a jurisdictional fact wrongly and usurps jurisdiction in that way. It is only when the Tribunal steps outside its jurisdiction that a writ of prohibition may issue; but, if on the contrary, a Tribunal declined to go into a jurisdictional fact at the earliest stage although called upon to do so and proclaims its intention to try that jurisdictional fact along with the other facts in the case, since would not be possible for any one to suggest that there has been any wrong assumption of jurisdiction by an incorrect determination of a jurisdictional fact, no occasion for the issue of prohibition can properly arise.
(15) Since the Tribunal in this case has merely announced its intention to try the jurisdictional fact along with the other facts in the case, the petitioners cannot properly ask for writ of prohibition at this stage and their application for that relief must, therefore, fail.
(16) But, what has been urged very strenuously by Mr. Ullal is that although the petitioners may not be entitled to a writ of prohibition from this Court at this stage, they are nevertheless, entitled to a writ of mandamus directing the Tribunal to decide the fourth issue involving a jurisdictional fact as a preliminary issue.
(17) I am not disposed to agree with the proposition submitted before us Mr. Ullal that if the jurisdiction of a Tribunal is challenged before it and the question as to whether the Tribunal has jurisdiction or not, depends upon a decision on a question of fact, the Tribunal is bound to decide that jurisdictional fact in the first instance before proceeding to try the other facts involved in the case. Although it was the endeavor of Mr. Ullal to convince us that the effect of the decision in AIR 1958 Mad 108 was that it was obligatory for the Tribunal in such circumstances to try such jurisdictional fact in the first instance, I have not found it possible to read that decision in the way in which Mr. Ullal wants us to read it. The only question which was decided in that case was, that if by an incorrect determination on a jurisdictional fact a Tribunal wrongly assumed jurisdiction, as for example, by deciding that what was not really an industrial dispute was one, the High Court had power to quash that incorrect determination and to restrain the Tribunal from proceeding with the reference relating to such dispute.
(18) There is however , an observation of the Exchequer Chamber in Bombay v. Fuller, (1853) 9 Ex 111 at public. 140 which may afford some assistance to the argument advanced before us by Mr. Ullal and that observation reads :-
'It is general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject matter which if true is within its jurisdiction, and however, necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or not within limits, yet upon this preliminary question its decision must always be open to inquiry in the superior Court. Then to take the simplest case - suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that if arose in another hundred, his is clearly a collateral matter independent of the merits, on its being presented, the Judge must not immediately forbear to proceed but must inquire into its truth or falsehood and for the time decide it, and either proceed or not on the principal subject matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main question in consequence of an error, on this the Court of Queen's Bench will issue its mandamus or prohibition to correct his mistake.'
(19) The enunciation of the principle in this way may lend some support to the contention urged by Mr. Ullal that the Tribunal in this case was under a duty to inquire into the objection relating to jurisdiction although it involved an inquiry into a collateral question of fact independent of the merits. But, on the question whether if a Tribunal's jurisdiction is challenged and a decision on the question whether the Tribunal is has jurisdiction involved an inquiry into a collateral question of fact, the Tribunal is bound, in the first instance to inquire into that collateral question and decide the jurisdictional fact before it proceeds to inquire into the merits of the case, it does not appear to me that we should express any opinion in this case.
(20) Normally we would have been justified in dismissing this writ petition on the ground that the petitioners did not, on August 20, 1960 avail themselves of the opportunity to have the fourth issue decided as a preliminary issue. Their conduct in absenting themselves on that date of hearing would have normally precluded them from agitation that matter on a subsequent date of hearing. The mandamus sought by the petitioners could have been ordinarily refused by us on that ground.
(21) But, in my opinion, we should, however, in this case issue a direction to the Tribunal to dispose of the fourth issue in the first instance not on the ground that the petitioners have a right to have the issue disposed of in that way, but for reasons which I shall state presently.
(22) It appears, after the impugned order was made by the Tribunal on October 8, 1960 some of the employees presented complaints under Sec . 33A of the Industrial Disputes Act that their services had been dispensed with in contravention of the provisions of Section 33 of the Act. Now , an inquiry into those complaints by the Tribunal is possible only if a proceeding in respect of an industrial dispute is pending before the Tribunal. The indispensable condition precedent for the exercise of jurisdiction under S. 33A is the pendency of a proceeding in respect of an industrial dispute before the Tribunal. By reason of the announcement of the Tribunal in its order dated October 8, 1960 that it will try the fourth issue along with the other issues in the case, it has became now incompetent for the Tribunal to adjudicate upon the complaints presented under Section 33A untill after the fourth issue is decided along with other issues in the case. The inevitable result would be that no adjudication on the complaints presented under Section 33A would be possible until the Tribunal makes its award. A situation like that, in my opinion, should not be allowed to come into existence.
(23) It is in order that there may be no undue delay in the adjudication upon the complaint presented by the employees under Section 33A, that it seems to me that we would be justified in directing the Tribunal to decide the fourth issue in the first instance. The peculiar circumstances of this case, in my opinion, justify the issue of that direction and a direction should accordingly issue to the Tribunal that the fourth issue shall be tried in the first instance so that it might pronounce on the question whether the dispute referred to it is or is not an industrial dispute. On the decision on that issue as a preliminary issue would depend the competence of the Tribunal to adjudicate upon the complaints preferred under Section 33A. It is that weighty consideration which impels me to come to the conclusion that the direction which in my opinion should issue, should be made in this case and it is so ordered.
Kalagate, J .
(24) I agree.
(25) Order accordingly.