VALLAMALAI ESTATE Vs. WORKERS OF VALLAMALAI ESTATE

JUDGEMENT

(1.) THIS appeal by the management is from an order of Palaniswamy, J. The learned Judge quashed an order of the Presiding Officer, Labour Court, Coimbatore, and directed him to restore to his file a reference which the State Government had made to him by G. O. Rt. 340, Department of Industries, Labour and Housing, dated February 24, 1968. That reference was made under Section 10 (2) of the Industrial Disputes Act, 1947, and on a joint application by the management of the Vallamalai Estate, Valaparai, and the workmen represented by the Secretary of the Estates' Staffs Union of South India, Coimbatore. As required by the provisions of the Act, the reference arose from a satisfaction of the Government that the persons applying for reference represented the majority of each party. The question that was referred for adjudication was whether the non-employment of one George Vaz (box-maker) was justified; if not, to what relief he was entitled ? The reference also included the computation of the relief, if any, awarded in terms of money, if it could be so computed at all. The workmen claimed that the termination, with effect from July 15, 1966, by the management, of the services of George Vaz, for alleged misconduct, was not at all sustainable. This was denied in the objection statement filed for the management, which asserted that George Vaz was not a workman within the meaning of the Industrial Disputes Act, but an independent contractor pure and simple, beyond the purview of the Industrial Disputes Act. On that ground, the management would have it that there was no industrial dispute so as to afford jurisdiction to the presiding officer to adjudicate the question under reference. Before the presiding officer the workmen contended that the management was estopped from questioning his jurisdiction to adjudicate on the reference as it was one under Section 10 (2) of the Act and upon a joint application by the management and the union. The other point which the presiding officer formulated was, if the management was not estopped, whether George Vaz was a workman, within the meaning of Section 2 (s) of the Act, or a contractor as the management would have it. The third point the presiding officer posed for himself was whether if George Vaz was a workman, was the enquiry against him a fair and proper one and whether the termination of his services could be justified. On the first question, the presiding officer held in favour of the management, and on the second question, the presiding officer's view was that George Vaz was not a workman. On that view, he was further of opinion that there was no industrial dispute in existence or apprehended, and, therefore, the presiding officer had no jurisdiction to go into the matter. Palaniswamy, J. , however, thought that the management, having joined in the application under Section 10 (2), was estopped from raising the contention that George Vaz was not a workman, and that, therefore, no industrial dispute was in existence or apprehended. At the same time, he was inclined to think that it was open to the management to contend before the presiding officer that the person concerned was not a workman. We have some difficulty in appreciating the learned Judge in making the second observation. Anyway, on the view he took, he quashed the award, as we said, and directed fresh disposal in accordance with law,

(2.) ON the question of estopped, with due respect to the learned Judge, we are unable to concur with him. There is nothing in the statutory provisions or the rules made under the Industrial Disputes Act to justify that view. The Act is intended to make a provision for the investigation and settlement of industrial disputes and for certain other purposes. The Act has defined an industrial dispute, which ought to be one between, among other things, employers and workmen, but the actual dispute should be connected with the employment or nonemployment, or the terms of employment or the conditions of labour of any person. There is also a comprehensive definition in the Act of the expression "workman" which we need not at the moment touch upon. Section 10 provides for reference of disputes. It has two limbs, the first of which says that where the appropriate Government is of opinion that an industrial dispute exists or is apprehended, it may, at any time, by an order in writing, refer the dispute and so on. But Subsection (2) is phrased as under: 10. (2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately for a reference of the dispute to a Board, Court, Labour Court, Tribunal or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. Rule 28, made with reference to Section 10 (2), requires that an application under that provision should be in Form E, and that it should be accompanied by a statement setting forth the parties to the dispute, specify the matters in dispute, the total number of workmen employed in the undertaking, the estimate of the number of persons affected or likely to be affected, the efforts made by the parties themselves to settle the dispute and certain other things. The application should be forwarded to the Secretary to the Government with a copy to the Commissioner of Labour. Form E reads: Whereas an industrial dispute is apprehended/exists between and and it is expedient that the disputes/ matters specified in the enclosed statement which are connected with or relevant to the dispute, should be referred for enquiry/settlement/ adjudication, to a Court of Enquiry/ Board of Conciliation/labour Court/ Tribunal, an application is hereby made under Section 10 (2) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), that the said dispute/matters should be referred to a Court of Enquiry/board of Conciliation/labour Court/tribunal. The application is made by the undersigned who has/have been duly authorised to do so by. . . . A statement giving particulars of the dispute as required by Rule 28 of the Madras Industrial Disputes Rules, 1958, is enclosed. Signature of applicant. Now, it seems to us that it is basic for the jurisdiction of the presiding officer to adjudicate upon a reference that there should be an industrial dispute either in existence or apprehended ; an industrial dispute as denned by the Act. It is open, therefore, to the presiding officer, on a reference, always, if the parties before him so desire, to decide as a preliminary issue as to whether the facts existed to warrant the invoking of his inherent jurisdiction. The opinion of the Government may not, therefore, be final, nor the fact of its having made a reference conclude before the presiding officer the question of jurisdiction. We do not think that the position is different under sub-s, (2) of Section 10. Like a reference under Sub-section (1), so a reference under Sub-section (2) can be sustained only on the basis of there being an industrial dispute in existence or apprehended. The difference between the two provisions is that under Sub-section (1) the Government has a discretion whether to make a reference or not, notwithstanding that in its opinion an industrial dispute exists or is apprehended, but under Sub-section (2) of Section 10, once it is satisfied that the persons applying represent the majority of each party, it is obligatory on its part to make the reference. We need not decide in this case whether such an obligation arises, if the Government is of the opinion that there is no industrial dispute in existence or apprehended. It is contended for the workmen that a joint application under Sub-section (2) of Section 10 being, as it is, on the basis of a consent or concession on the part of the parties thereto that an industrial dispute existed or was apprehended, either of the parties would be estopped from raising the question of jurisdiction before the presiding officer. We are of the view that neither the terms of Subsection (2) of Section 10 nor of Rule 28, read with those of Form E, suggest in any way anything to support that view. On the other band, it seems to us that the opening words of Sub-section (2) are clear, that it is only parties to an industrial dispute that could apply jointly, and that means that if it could be shown that no industrial dispute existed or was apprehended, no joint application would be warranted, or, at any rate, the question whether there is an industrial dispute would certainly be open to question before the presiding officer. As such, his jurisdiction is entirely dependent on the existence or apprehension of an industrial dispute as defined. Neither consent nor waiver can be a substitute for jurisdiction and cure the initial want of jurisdiction. The basis of jurisdiction is an industrial dispute and that question is, therefore, always open to the presiding officer to go into notwithstanding what the parties or the Government have thought about it.

(3.) HALSBURY, page 204, paragraph 384, points out that lack of jurisdiction deprives the judgment of any effect, whether by estoppel or otherwise and that this rule applied even where the party alleged to be estopped himself sought the assistance of the Court whose jurisdiction was impugned. Toronto Railway Co. v. Corporation of the City of Toronto [1904] A. C. 809, was such a case, and it was held there was no power conferred by the State to make an assessment, it must be wholly illegal and void ab initio, and confirmation by the Court of Revision cannot validate it, and that jurisdiction could not be assumed either by the conduct of the parties in the form of estoppel or waiver or silence. Vide 9 Halsbury, page 352. In Hinde v. Hinde [1953] I All E. R. 171, it was pointed out that though the parties may agree on amounts or may make agreement as to payments, they could not by consent confer on a court a jurisdiction which it did not possess. Similarly, in The Queen v. Judge of the County Court of Shropshire [1888] L. R. 20 Q. B. D. 242, it was held that where there was initial lack of jurisdiction, it could not be supplied by means of waiver.