PROVINCE OF BOMBAY; WESTERN INDIA AUTOMOBILE ASSOCIATION Vs. WESTERN INDIA AUTOMOBILE ASSOCIATION; THE INDUSTRIAL TRIBUNAL AND SATYA MANGULA VENKTRAMANRAO BHUPAT

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Coyajce ordering the issue of a writ of prohibition against the Industrial Tribunal set up by the Government of Bombay. It seems that a dispute between the Western India Automobile Association and its workers started about November 1946, and on November 9, 1946, the President of the Western India Automobile Association Staff Union served a notice upon the President of the Association setting out various demands of the employees. On December 4, 1946, the President of the Association informed the President of the Union that they were not prepared to recognise the Union or to carry on any correspondence with it. On December 30, 1946, the President of the Union by a letter informed the President of the Association that unless the demands of the workers were accepted, the members of the Union would strike work on January 2, 1947, and pursuant to this notice there was a strike of the members of the Union starting on January 2, 1947. On January 22, 1947, the Association gave notice to those on strike that unless they resumed their duties by the 27 they would be deemed to be dismissed from the day they went on strike, and on February 11, 1947, the services of those on strike were terminated. On May 28, 1947, the Union made fresh demands upon the Association, and on August 11, 1947, the Government of Bombay issued a notification under Section 7 of the Industrial Disputes Act, constituting an Industrial Tribunal consisting of Mr. Vyas, and on September 17, 1947, under Section 10 of that Act, the Government referred to the Tribunal for its adjudication the various disputes which were pending between the Association and the Union, and the material one to which I may draw attention was whether such of the members of the Association staff who joined the strike at the date of its commencement on January 2, 1947, and/or thereafter should be reinstated and paid back wages or salaries with all allowances, bonuses, etc., at the increased rates as may be fixed by the Tribunal, from January 2, 1947, till the date of reinstatement, and/or such other relief which the Tribunal may grant. I may point out that subsequently in place of Mr. Vyas, Mr. M.C. Shah constituted the Industrial Tribunal.

(2.) The Association challenged the jurisdiction of the Tribunal to inquire into this dispute and they filed a petition on November 15, 1947, for a writ of cetiiorari, in the alternative, for a writ of prohibition, and in further alternative, for an order under Section 45 of the Specific Relief Act, against the Tribunal, preventing it from proceeding with the investigation of this dispute. Before Mr. Justice Coyajee it was contended by the Association that the Industrial Disputes Act did not apply to the Association at all and therefore the dispute between the Association and its workers could not be referred to the Tribunal, It was also contended by the petitioners that in any event the question of reinstatement of the dismissed employees could not be considered and investigated by the Tribunal. The learned Judge held that the Industrial Disputes Act did apply to the Western India Automobile Association, but he held that it was not competent to the Tribunal to consider the question of the reinstatement of the dismissed employees, and therefore he issued a writ of prohibition against the Tribunal, restraining it from entering1 upon any inquiry or giving any direction on the question of reinstatement. From this order an appeal is preferred by the Province of Bombay, and also there is an appeal by the Western India Automobile Association, inasmuch as the learned Judge held that the Tribunal had jurisdiction to investigate the disputes except for the question of reinstatement.

(3.) Now, as far as the Province of Bombay is concerned, it was not a party to the petition, although under the direction of the learned Judge notice was served upon the Province of Bombay, and pursuant to that notice the Province of Bombav appeared before the learned Judge and submitted its point of view before the Court; and a preliminary point is taken that inasmuch as the Province of Bombay was not a party to the petition, it is not competent for the Province of Bombay to prefer an appeal from the decision of the learned Judge. The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear, and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of Appeal. Therefore, whereas in the case of a party to a suit he has a right of appeal, in the case of a person, not a party to the suit who is affected by the order he has no right, but the Court of Appeal may in its discretion allow him to prefer an appeal. It is difficult to understand why the Province of Bombay, which is vitally affected by the decision of Mr. Justice Coyajee, did not think lit to get itself made a party to the petition. Not only it did not do so, but it preferred an appeal without obtaining any leave or any direction from the Court of Appeal, and there can be no doubt that Mr. Vimadalal's contention is sound that as the record stands the appeal preferred by the Province of Bombay is not competent. It is an appeal preferred by a person who was not a party to the proceedings before Mr. Justice Coyajee and who has not been given any leave by the Court of Appeal to prefer this appeal. It was open to the Province of Bombay to come before us before filing this appeal and get the necessary leave and directions, but that, again, the Province of Bombay did not choose to do. But I do not think it would be right to deprive the Province of Bombay of the right to challenge Mr. Justice Coyajee's decision merely on this technical ground. Technicalities should never be permitted to override substantial justice, and we think that the Province of Bombay should be heard provided it pays all the costs of this appeal up to date. We would, therefore, give leave to the Province of Bombay to maintain this appeal although it was not a party to the proceedings before Mr. Justice Coyajee.