Suryaprakash Weaving Factory Vs. the Industrial Court - Court Judgment

Chagla, C.J.

1. This is an appeal from an order of Tendolkar J., by which he dismissed the appellants' petition for an order under Section 45, Specific Relief Act on two preliminary grounds. The petitioners are eight manufacturers and employers of labour in the city of Surat, and there was a dispute between them and their employees, and the Provincial Government on 4th May 1948, referred the dispute to the arbitration of the Industrial Court under Section 73, Bombay Industrial Relations Act, 1946 The petitioners contended in their petition that as their industry was not a cotton textile industry, the dispute between them and their employees did not constitute an industrial dispute within the meaning of the Act and the reference made by the Provincial Government to the Industrial Court was not a valid reference and the Industrial Court had no authority and jurisdiction to entertain the reference and to decide the reference. Thereupon they sought from this Court an order under Section 45 calling upon the Industrial Court to forbear from arbitrating upon the Industrial dispute referred to them by the Provincial Government. Tendolkar J., took the view that the provisions of Section 46, Specific Relief Act were not complied with and therefore the petition was bound to fail.

2. It is perfectly true that the provisions of Section 46 are mandatory in their character and a non-compliance of those provisions would result in a petition under Section 45 being dismissed. What Section 46 requires is that the application under Section 45 has to be founded on an affidavit of the person injured and that affidavit has to state iris right in the matter in question, his demand of justice and the denial thereof, and the view that the learned Judge below took was that in the affidavit made by the petitioners in support of their petition there was no averment that they had demanded justice and that justice had been denied. In my opinion, Section 46 does not require that there must be used in the affidavit of the petitioner specific words to the effect that he had demanded justice and justice had been denied. What the section requires is a substantial compliance with the provisions thereof, and if from the affidavit it clearly appears that the petitioner had demanded justice and that justice had been denied, the mere absence of the exact words in the affidavits would not result in the petition being dismissed. Turning to the affidavit of Surajram Dayaram Chevli and Dr. Amichand Shah, we find that in para. 2 of the affidavit the deponents stated that they appeared before the Industrial Court and contended that it had no jurisdiction to entertain the dispute referred to in the notification of 4th May 1948, and in para. 3 they further proceed to state that the Industrial Court however proceeded with the references. In my opinion, reading paras. 2 and 3 together, it is perfectly clear that a demand for justice was made by the petitioners from the Industrial Court inasmuch as he was asked not to proceed with the references because he had no jurisdiction, and when he did proceed notwithstanding this protest, there was a denial of justice about which the deponents were complaining in the affidavit. There is also the affidavit of Surajram Hathiwalla where he points out that at the adjourned meeting before the Industrial Court on 4th October 1948, a point was taken that the factories of the petitioners were not cotton textile concerns, and the Court expressed its opinion in favour of the petitioners. But the matter was adjourned in order to enable the Industrial Court to refer the matter to the Government to inquire into the nature of the industry, and subsequently the petitioners were informed that the hearing would go on and the date was fixed as to when the reference would go on. Here again, there is an averment of the objection taken by the petitioners to the jurisdiction and authority of the Industrial Court and the ultimate decision of the Court to proceed with the reference. Therefore, in my opinion, with respect to the learned Judge, he has taken too technical a view of the provisions of Section 46, and I am of the opinion, looking at these two affidavits, that there is a substantial compliance with the provisions of Section 46.

3. But the more important question that we have to consider is whether it is incumbent upon the Industrial Court to forbear from proceeding with the reference within the meaning of Section 45. The learned Judge took the view that under Section 87(a)(vi) Bombay Industrial Relations Act, it was the duty of the Industrial Court to decide industrial disputes referred to it under Section 73, and the Industrial Court had neither the authority nor the duty to investigate into the validity of the reference, and therefore, in the opinion of the learned Judge it was not incumbent upon the Industrial Court not to proceed with the reference and on that ground also the learned Judge took the view that the petition was misconceived and was bound to fail. Again, with respect to the learned Judge, it is not necessary that there must be a specific provision in a statute making it incumbent upon a person holding a public authority to forbear from doing some act. It is sufficient if a statute casts a duty upon a person holding a public office; then it is incumbent upon that person to discharge that duty. If in discharging that duty he acts unauthorisedly or irregularly or improperly, then the Court will intervene under Section 45, because it could be said that it was incumbent upon him to forbear from discharging his duty in any manner other than as laid down by the statute. It is sufficient to find a duty cast upon a public officer under Section 45. If that duty is not discharged in the manner provided by the law, then the Court will assume that there is a forbearance cast upon him to act otherwise than in the manner laid down in the statute. Turning to the Bombay Industrial Relations Act, 1946, (Bom. XI [11] of 1947) itself, Section 73 provides that:

'Notwithstanding anything contained in this Act, the Provincial Government may, at any time, refer an industrial dispute to the arbitration of the Industrial Court, if on a report made by the Labour Officer or otherwise it is satisfied . . . .'

Then various provisions are laid down which entitle Government to refer a dispute to the Industrial Court. Therefore, under this section a statutory authority is set up, viz., the Industrial Court, to decide industrial disputes which are referred to it by Government under Section 73. Then turning to Section 87, that section provides what are the duties of the Industrial Court, and one of the duties under Sub-section (a) (vi) is to decide industrial disputes referred to it under Section 71, 72 or 73. Therefore, the statutory duty of the Industrial Court is to decide only those industrial disputes which are referred to it under Section 71, 72 or 73. If the Industrial Court purports to decide any industrial dispute which is not covered by Section 71, 72 or 73, it would be acting unauthorisedly and irregularly and contrary to the provisions of the statute. Therefore, if the Court finds that the Industrial Court is entertaining a reference and proceeding with a reference and attempting to adjudicate upon that reference when the reference is not a proper reference either under Section 71, 72 or 73, this Court can undoubtedly act under Section 45 and compel the Industrial Court to forbear from proceeding with that reference.

4. The contention of the petitioners is that what is referred to the Industrial Court by the Provincial Government under Section 73 is not an industrial dispute at all within the meaning of Section 73, and the Industrial Court is purporting to proceed with a reference which does not fallwithin the ambit of Section 73. Whether this contention is right or not is a matter of merits which has not been decided by the learned Judge. But that is the contention on which the petitioners have come to this Court. Assuming their contention is right that the particular disputes referred by Government to the Industrial Court under Section 73 do not constitute an industrial dispute within the meaning of Section 73, then undoubtedly the Industrial Court is attempting to do something which is prohibited by statute and which it has no authority to do. It is argued that in challenging the Notification issued by Government the petitioners are challenging the very validity of the Industrial Court, and it is further argued that if the validity of the Industrial Court is challenged, then an order under Section 45 cannot be made. It is said that it is only when you accept the validity of a person holding a public office that you can get an order under Section 45 restraining him from acting in a manner which the statute forbears him from acting. That is a correct statement of the law. A petitioner, in order to be entitled to an order under Section 45, must accept the position that a person is holding a public office under some law and his grievance must be that he is acting contrary to the provisions of that law. If he comes to the Court and denies the right of the person to hold the public office, then clearly he cannot get an order under Section 45. These, in my opinion, are very simple and well-established principles of law. But the question is whether in this particular case the petitioners are challenging the validity of the Industrial Court itself. In my opinion, they are not. They accept the Industrial Court as a proper statutory authority established under the Bombay Industrial Relations Act. They also accept the position that the Industrial Court is authorised to deal with references that fall within the ambit of Section 73. They accept the position that it is the duty of the Industrial Court to deal with those references under Section 87(a)(vi). But what they contend is that this particular reference to the Industrial Court is not a reference which falls within the ambit of Section 73 and in attempting to deal with that reference the Industrial Court is doing something which it is not entitled to do under the law and is acting unauthorisedly and therefore it should be prevented from acting in an unauthorised manner. It has been urged before us that the Industrial Court is created by the notification of Government as the arbitrator to decide this particular dispute, and in challenging the validity of the notification the petitioners are challenging the validity of the arbitrator himself. In my opinion, that is an entirely fallacious contention. The Industrial Court is not the creature of the Notification of Government. It is a statutory authority set up by the Bombay Industrial Relations Act, and all that the Notification does is to refer a particular dispute to that statutory authority as purporting to fall within the ambit of Section 73. Therefore, if the petitioner says that the dispute does not fall within the ambit of Section 73 and the notification is not a proper notification, it is true he does challenge the notification, but thereby he does not challenge the authority of the arbitrator as a statutory authority properly constituted under the law of the land.

5. Reference was made to a decision of this Court to which I was a party, reported in Lady Dinbai Petit v. M. S. Noronha 48 Bom. L. R. 255 : A. I. R 1946 Bom. 407. In that case there was an acquisition by Government under the Defence of India Act and the Rules framed thereunder, and under those rules Mr. Noronha, the Chief Judge of the Small Causes Court, was appointed an arbitrator. Various contentions were urged and one of the contentions was that the acquisition made by Government was illegal and therefore Mr. Noronha should be prevented from proceeding with the arbitration under Section 45, Specific Relief Act. Both Kania J. as he then was, and myself took the view that if you challenge the legality of the acquisition itself, which alone could result in an arbitrator being appointed under the Defence of India Rules, then you cannot ask for an order under Section 45, Specific Relief Act. In my judgment at p. 272 I have stated this:

'I agree with Mr. Munshi that it is not necessary that the law or the statute should specifically lay down that the public officer should forbear from doing something before the application of this sub-clause can be attracted.' [I was dealing with Sub-clause (b) of Section 45] 'Now to my mind it is essential that there must be in law for the time being in force some duty cast upon the public officer. If he does not do the duty, then the Court can call upon him to do it. If he does it improperly or unauthorisedly, the Court can call upon him to forbear from doing it in that particular manner.'

This is exactly the case before us which we are considering. Then I go on to say (p. 272) :

'Now in this case it is not suggested that the arbitrator is discharging his duty improperly or arbitrarily. Mr. Munshi wants the Court to ask the arbitrator not to proceed with the reference when the Defence of India Act and the Rules made thereunder make it incumbent upon him to proceed with the reference. Mr. Munshi really wants the Court to ask him to forbear from proceeding with the reference on the assumption that the very foundation of his authority does not exist, namely, that the acquisition made by Government is illegal and ultra vires. If the very foundation of the authority of the arbitrator does not exist, then there is neither the doing nor the forbearing of any act incumbent upon him.'

Therefore, if the petitioners had challenged the very foundation of the authority of the arbitrator, then certainly they would not have been entitled to an order under Section 45. But the foundation of the authority of the arbitrator is the Bombay Industrial Relations Act; the foundation of his authority is not the notification issued by Government. The petitioners do not challenge the foundation of his authority. On the contrary, they appeal to the foundation of his authority, they accept it, and their whole grievance is that what he is doing is something which is unauthorised and contrary to the provisions of the statute which has set him up and which is the foundation of his authority.

6. Therefore, in my opinion, the learned Judge was in error in coming to the conclusion that it was not incumbent upon the Industrial Court to forebear from proceeding with a reference which did not fall within the ambit of Section 73.

7. I should like to add that the Federal Court in a recent decision impliedly have taken the same view of the law. The Calcutta High Court had a petition before it for a writ of prohibition and certiorari and an order under Section 45 restraining the arbitrator from adjudicating upon an industrial dispute which raised the question as to the reinstatement of certain persons dismissed by the employer. It was contended before the Calcutta High Court that the Court had no jurisdiction to issue writs of prohibition and certiorari as the particular industry was outside the original jurisdiction of the Calcutta High Court. That contention was accepted by the Calcutta High Court. It was also argued before the Calcutta High Court that an order under Section 45 could not be made in that particular case. The Calcutta High Court held that an order under Section 45 could be made, heard the petition on merits, and came to the conclusion that the question of reinstatement was an industrial dispute. The matter went to the Federal Court and the Federal Court took the view that the Calcutta High Court was right and that the question of reinstatement was an industrial dispute within the meaning of the law. It is perfectly true that the Federal Court has expressed no opinion on the decision of the Calcutta High Court that an order under Section 45 can be made against an arbitrator or an Industrial Court adjudicating an industrial dispute. But the very fact that the Federal Court went into the merits of the question and held that the Calcutta High Court was right in the conclusion that it came to, clearly implies that the Federal Court's view was that the petition was maintainable and that in proper cases an order could be made under Section 45, Specific Relief Act. In that particular case, no order was made because both the Calcutta High Court and the Federal Court took the view that the question of reinsteatment was an industrial dispute. But if in a particular case the view of the Court is that a particular reference pending before the Industrial Court does not deal with an industrial dispute, then an order can be made under Section 45, Specific Relief Act. The Advocate General has argued that the Federal Court has not decided this question in terms. I agree, but, as I said before, there is a necessary implication in its judgment that a petition under Section 45 can lie for an order against the Industrial Court when the Industrial Court purports to entertain a reference which is outside the ambit of the statute which creates that authority.

8. The learned Judge has not disposed of the petition on merits as he took the view that on both these preliminary points the petitioners were liable to fail. I would therefore allow the appeal, set aside the order of the learned Judge, and direct that the petition should go back to the learned Judge to be disposed of on merits.

9. Costs of the appeal and costs of the hearing before Tendolkar J. will be paid by respondent 1. Respondent 2 to bear their own costs of the appeal.

Bhagwati, J.

10. I agree.