The Municipal Council Vs. the Nagar Parishad Karamchari Sangh and ors. - Court Judgment

B.P. Beri, C.J.

1. This is an appeal under Section 18 of the Rajasthan High Court Ordinance against the order of the learned single Judge dated 15th October, 1969 whereby he dismissed the writ petition filed by the Municipal Council, Ajmer, questioning the arbitration award made by the Assistant Labour Commissioner, Central, Ajmer, under Section 10B of the Industrial Disputes Act (as amended by the Rajasthan Act).

2. The Municipal Council, Ajmer, by its order dated 23rd June, 1967, retired certain persons with different designations because they had attended the age of 55 years. Five Daroghas, two Masons, three Chowdhries and two Drivers raised a dispute questioning the validity of their retirement. By virtue of an agreement dated the 19th June, 1968 the matter was referred under Section 10-B of the Industrial Disputes Act, 1958 (hereinafter called 'the Act'). The Municipal Council, Aimer, at the relevant time was being run by an Administrator appointed under Section 293A of the Rajasthan Municipalities Act, 1959 (hereinafter called 'the Municipalities Act'). The agreement was between the Nagar Parishad Karamchri Singh representing the workmen and the Administrator of the Municipal Council, Ajmer. but it was signed by one M.S. Bansal, Accountant, Municipal Council, Ajmer. The Arbitrator proceeded to consider the rival contentions complaining that the attitude adopted by the Municipal Council was unco operative--although the Administrator had filed an answer to the claim--and came to the conclusion that all the aforesaid persons belonged to Class IV service and could not be retired on completing the age of 55 years in view of the provisions of the Rajasthan Municipalities Class IV Service Rules, 1964 Dis-satisfied with the award the Municipal Council filed a petition under Article 226 of the Constitution of India and challenged the award in respect of only 2 masons, 3 choudhries, inter alia,, on the ground that the agreement to refer the matter to arbitration was not executed by a proper authority as required under Section 80 of the Municipalities Act; that in point of fact as early as 1931 the then Municipal Committee of Ajmer had described the designation of choudhary as a superior servant and they could not be called Class IV servants; that it was erroneous on the part of the Arbitrator to have equated masons to black-smiths, painters, carpenters, etc, and to conclude that they were Class IV servants. It was also urged that masons and beldars were the two distinct kinds of workmen while the former required skill and the latter were merely called to perform physical work involving no adroitness. The learned single Judge declined to interfere on the ground that the attitude of the petitioner before the Arbitrator was non co-operative and also there was no substance in the accusations of malafides on the part of the Arbitrator. He declined to exercise his extraordinary jurisdiction for considering the question of the legality of the agreement to refer the matter to Arbitrator. Dis-satisfied the Municipal Council, Ajmer has come up in appeal.

3. Mr. S. K Jindal, learned Counsel for the appellant urged that Section 80 Sub-section (6),read with the later part of Sub-section (7) required that every contract to which Sub-section (6) applied, shall be executed by the Chairman of such Committee or by such individual as was empowered in this behalf The Municipal Council at the material time was under the control of an Administrator and the agreement to refer the matter for arbitration having been in the name of Municipal Council through the Administrator it ought to have been signed by the Administrator himself. Mr. Bansal, the Accountant had no such authority as has been specially urged on oath by the Administrator and there was no reason to assume that he was authorised to sign the agreement. The agreement being the basis for arbitration, if it was void because of the non compliance of Section 80 (6) and the later part of Sub-section (7) of the Municipalities Act, the entire award became ineffective. He placed reliance of Union of India v. A.L. Rallia Ram AIR 196 SC 1685, Dr. H.C. Rikhy and Ors. v. The New Delhi Municipal Committee AIR 1862 SC 554. His second submission was that the Arbitrator appointed under Section 10 B, as introduced by the Rajasthan Legislature in the Industrial Disputes Act was a tribunal amenable to the jurisdiction of the High Court in a writ of certiorari and in support of this proposition he relied on Air Corporation Employees' Union and Anr. v. D.V. Vyas and Ors : (1962)ILLJ31Bom , P. Koru v. Standard Tile and Clay Works P. Ltd. and Anr : AIR1963Ker324 , Nowrozabad Colliery Mazdoor Sangh v. F. Jeejeebhoy and Anr : AIR1970MP63 and Modern Stores and Anr v. Krishanadas Shah and Ors 1970 FJR 515. His third contention was that by no stretch of imagination could a mason be treated as a beldar and mason being not included in a schedule in the Rajasthan Municipalities Class IV Service Rules, 1964 he belonged to the category of Class III servants to be retired at the age of 55. Regarding the choudharies his emphasis was on the 1931-Resolution of the then Municipal Committee of Ajmer where they were treated as belonging to superior service.

4. Mr. N.M. Kasliwal urged that the entire conduct of the Administrator including the act of filing the answer to the claim, participation in the proceedings and his failure to object when the agreement was published in the Gazette and partial acceptance of the award itself are conclusive evidence of the fact that it was a duly authorised agreement entered on behalf of the Municipal Council although, for convenience sake, it was signed by the Accountant Mr. Bansal He further urged that Section 80 of the Municipalities Act did not govern the situation as it was a case of special agreement entered into under Section 10 B, as introduced by Rajasthan Amendment Act and this section no where required that the agreement should have been signed by a particular individual, and the sanction and approval of the Administrator must be implied from his conduct. He distinguished the authority in the Union of India v. A.L. Rallia Ram AIR 196 SC 1685 on the ground that it proceeded on an interpretation of Section 175 of the Government of India Act, 1935 which was a constitutional provision held to be mandatory. His further submission was that the Arbitrator was not a Tribunal amanable to Article 226 of the Constitution as decided by Engineering Mazdoor Sabha and Anr. v. Hind Cycles Ltd. (Civil Appeals Nos. 182 and 183 of 1962) and Anglo Amarican Tea Trading Co Ltd. v. Their Workmen and Anr Civil Appeal Mo. 204 of 1962 : (1962)IILLJ760SC . He further placed his reliance on Management of the National Projects Construction Corporation Ltd Bhagalpur and Anr v. Their Workmen and Ors. 1970 LIC 907, Rohtas Industries Ltd. and Anr. v. Workmen of Rohtas Industries Ltd and Ors. : (1968)ILLJ710Pat and Management of Shri Rurduttory Jute Mills Private Ltd. Kathiar v. Workmen represented by the Kathiar Mazdoor Sangn, Kathiar and Ors. : AIR1968Pat66 . And his last argument was that there was ample evidence on record to show that the choudhries were working as Malies and Malies having been included in Class IV Schedule could not have been retired at the age of 55. Regarding masons his argument was that the term 'beldar' is wide enough to include masons.

5. The question which roes to the root of this case is whether the learned single Judge rightly dectined to entertain and decide the legal question that the agreement by which the matter was referred to arbitration was not executed by a proper authority under the Municipalities Act. It will be relevant to recall that the arbitration agreement was entered on 19th June, 1968 between the Municipal Council, Ajmer (hereinafter called 'the Municipality') and the President, Nagar Parishad Karamchri Sangh, Ajmer (hereinafter called 'the Sangh') under Section 10 B of the Act. It was published in the Rajasthan Government Gazette on 5th September, 1969. The Assistant Labour Commissioner (Centre) Ajmer being the Arbitrator requested the parties by his order dated 9th October, 1968 to send brief and self-contained statements of their cases. The Municipality did not send one and Shri S.N. Singh, Municipal Commissioner, Ajmer vide his letters dated 10th and 11th February, 1969 requested for en adjctrrment due to Flower show and also because the reply was being drafted by their legal advisor Shri Jindal at Jodhpur. The proceedings were then adjourned to 25th February, 1969 but no reply was filed. The Municipality again requested for an adjournment, which was allowed on payment of costs and then it was on 13th March, 1969 that the statement by the Municipality was filed On 14th March, 1969 the Administrator, Mumcipal Council. Ajmer desired to engage the services of Shri Raj Kishan Bhargava, Muncipal Vakil, and asked for an adjournmnt due to the counsel's indisposition. The evidence of the workmen was closed on 20th March, 1969 and the Municipality did not desire to produce my oral evidence but produced the personal files of the 10 employees of the Municipality together with the attested copy of the resolution No, 13 of the 19th July, 1931. Arguments of both the parties were heard on the 9th April, 1969 and the award was given on the 2nd June 1969. In the considered and detailed written statement filed by Municipality and signed by the Administrator, Municipal Council, Ajmer no plea had been raised that the arbitration agreement was not signed by the preper authority under the Municipalities Act. When the award went against the Municipality, they filed a petition under Article 226 or the Constitution praying for a writ of certiorari and prohibition to quash the award.

6. In R.V. Williams Phillips, 1914 (1) KB 608, the question of a petitioner's conduct before the presentation of an application for certiorari was examined and Channel J held that the writ being of a discretionary nature, a party may by the writ ex debi to justitio, no matter whether the proceedings which he seeks to quash are void or voidable. Channel J observed:

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 writs of certiorari.

It is clear from the conduct of the Municipality that apart from taking slow and hesitant steps to co-operate with the Arbitrator, it nevertheless made appearance, made answer, joined issues and led evidence When the matter went against the Municipality, it now changes the jurisdiction of the Arbitrator on the ground that the agreement was not signed by the authority duly authorised by law in this behalf. Where the objection to jurisdiction is latent, the acquiescence of the party who is aware of the objection to the assumption of the jurisdiction, may disentitle him to writ because of his conduct. Patent lack, of jurisdiction stands on a different footing. We are of the view that in the case before us assuming for the sake of argument that M.S Bansal Accountant, Municipal Council, Ajmer when he signed the agreement for arbitration (Annexure 2) on 19th June, 1968 under Section 10B of the Act was not authorised to sign on behalf of the Council, it cannot still be called a case of patent lack of jurisdiction. Whether he was authorised within the domestic working of the Municipality to sign on behalf of the Municipal Council or not is obviously a matter which was within the special knowledge of the Council. Therefore, at its highest it may be a case of latent lack of jurisdiction, assuming for the sake of argument as advanced before us, that the Accountant could not sign on behalf of the Council. The learned single Judge declined to exercise his jurisdiction on the ground of non-cooperative attitude of the petitioner Municipality. He even declined to entertain the argument that the agreement for for arbitration was not binding because it was not duly signed. As a matter of fact, the conclusion of the learned single Judge is correct, in our opinion, because by the unequivocal conduct of acquiescence (apart from non-cooperation) on the part of the Municipal Council, Ajmer in participating in the proceedings without raising any objection. We cannot permit them now to turn round on the alleged invalidity of the arbitration agreement when the verdict went against them. This is a situation which painly disentitles them to invoke the extraordinary jurisdiction of this Court. The case of Union of India v. A.L. Rallia Ram AIR 196 SC 1685 is clearly distinguishable because that arose from Civil suit before the Subordinate Judge, Delhi. The considerations for the exercise of extraordinary jurisdiction are different from those that arise in a suit.

7. The rival contentions of the parties in regard to the merits of the case have been dealt with by the Arbitrator in a reasonable and objective manner and we cannot call his order as one suffering from any error apparent on the face of the record. Nor can the conclusions of the Arbitrator be said to be the type which a reasonable man in the circumstances would not have arrived at. The arbitrator had jurisdiction to decide the matter and after objective assessment of the various facts and circumstances he had come to definite conclusions. The learned single Judgi has in the circumstances rightly declined to invoke his extraordinary jurisdiction and we also do not see any justification to interfere with the award which seems to be quite reasonable.

8. The result is that this appeal fails and is dismissed with costs.