SURYAPRAKASH WEAVING FACTORY Vs. INDUSTRIAL COURT

JUDGEMENT

(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.) 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. (33) 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.