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Suryaprakash Weaving Factory And Others (Original Petitioners), v. The Industrial Court And Another
Written Summary of the Opinion by Chagla, C.J. (with Bhagwati, J. concurring)
Factual and Procedural Background
Eight manufacturers and employers of labour in the city of Surat (the appellants/petitioners) were involved in a dispute with their employees. On May 4, 1948 the Provincial Government referred the dispute to arbitration by the Industrial Court under section 73 of the Bombay Industrial Relations Act, 1946.
The petitioners challenged the reference to the Industrial Court on the ground that their industry was not a cotton textile industry and, therefore, the dispute did not constitute an "industrial dispute" within the meaning of the statute. They sought an order from this Court under section 45 of the Specific Relief Act directing the Industrial Court to forbear from arbitrating upon the referred dispute.
Mr. Justice Tendolkar dismissed the petition on two preliminary grounds: (1) non-compliance with section 46 of the Specific Relief Act (relating to the form and contents of affidavits supporting a section 45 application), and (2) the view that, under section 87(a)(vi) of the Bombay Industrial Relations Act, it was the Industrial Court's duty to decide disputes referred under section 73 and it had no authority or duty to investigate the validity of the reference (so relief under section 45 was not appropriate).
The petitioners appealed from that order. Chagla, C.J. heard the appeal and delivered the opinion reproduced here; Bhagwati, J. agreed with the judgment. The Court allowed the appeal, set aside the order of Mr. Justice Tendolkar, and remanded the petition to him to be heard on the merits. Costs were allocated between the parties as stated in the judgment.
Legal Issues Presented
- Whether the petition under section 45 of the Specific Relief Act was fatally defective for non-compliance with the affidavit requirements of section 46 of the Specific Relief Act.
- Whether an order under section 45 of the Specific Relief Act can be issued to restrain the Industrial Court from proceeding with a reference that the petitioners contend falls outside the statutory ambit of section 73 of the Bombay Industrial Relations Act — i.e., whether it was incumbent upon the Industrial Court to forbear from proceeding with the reference when the reference is alleged to be invalid or beyond the Industrial Court's statutory jurisdiction.
Arguments of the Parties
Appellants' (Petitioners') Arguments
- Their industries were not cotton textile industries; therefore the disputes referred by Government did not amount to "industrial disputes" within the meaning of the Bombay Industrial Relations Act and specifically did not fall within section 73.
- Because the references did not fall within section 73, the Provincial Government's notification referring the disputes to the Industrial Court was invalid and the Industrial Court had no authority or jurisdiction to entertain and decide those references.
- Accordingly, they sought an order under section 45 of the Specific Relief Act to restrain the Industrial Court from proceeding with adjudication on the basis that the Court would be acting without jurisdiction or otherwise contrary to statute.
Respondents' and Other Contentions Noted by the Court
- The learned Judge below (Mr. Justice Tendolkar) held that the affidavits supporting the petition did not comply with the mandatory requirements of section 46 of the Specific Relief Act (no explicit averment that justice was demanded and denied), and therefore the petition must fail procedurally.
- It was also argued (as recorded in the opinion) that the Industrial Court had a statutory duty under section 87(a)(vi) to decide disputes referred under section 73 and had no authority or duty to investigate the validity of the reference; hence relief under section 45 to restrain it was misconceived.
- It was further urged (by some respondents/Advocate General) that if the petition effectively challenged the validity of the notification appointing the arbitrator it was tantamount to challenging the arbitrator's authority itself, and where the very foundation of authority is denied, an order under section 45 would not lie.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lady, Dinbai Petit v. Noronha (reported decision of this Court; Chagla, C.J. was a party) | Principle that if the very foundation of an arbitrator's authority is denied (e.g., where statutory power enabling appointment is attacked), then an order under section 45 of the Specific Relief Act cannot be used to restrain the arbitrator; there must be an existing duty cast by law before forbearing/compulsion under s.45 is possible. | The Court relied on and applied the distinction drawn in that case: where the foundation of authority exists (here, the Bombay Industrial Relations Act) but the tribunal is alleged to be acting beyond statutory ambit, section 45 is available; by contrast, where the foundation itself is denied, s.45 is not available. The Court concluded the present petition did not attack the foundation of the Industrial Court's authority and so Dinbai Petit v. Noronha did not preclude relief. |
| Calcutta High Court decision (described in the opinion; specific citation not given) | Held that an order under section 45 could be made against an arbitrator/Industrial Court in respect of a pending reference; heard merits and held that reinstatement question was an industrial dispute. | Chagla, C.J. refers to this decision as an instance where a High Court entertained a s.45 petition against an arbitrator/Industrial Court and proceeded to decide merits; the opinion treats that decision as supportive of the proposition that s.45 may be available in appropriate cases. |
| Federal Court decision (described as a "recent decision" affirming the Calcutta High Court on merits; specific citation not given) | The Federal Court upheld the Calcutta High Court's conclusion on the merits that the matter was an industrial dispute; it did not express a specific view on the availability of s.45 but its conduct of the merits was treated as implying maintainability of the s.45 petition. | The Court relied on the Federal Court's treatment of the matter to infer that there is at least an implication in higher authority that a petition under s.45 can be maintainable against an Industrial Court when it purports to entertain matters outside its statutory ambit. |
Court's Reasoning and Analysis
The Court addressed the two preliminary grounds relied upon by the learned Judge below in turn.
1. Compliance with Section 46 of the Specific Relief Act
- The learned Judge below held that section 46's affidavit requirements were mandatory and that the petitioners' affidavits did not aver that they had "demanded justice" and that "justice had been denied," leading to dismissal. The appellate Court accepted that section 46 is mandatory in character but emphasized substantial compliance rather than literal word-for-word formulaic language.
- The Court examined the affidavits of Surajram Dayaram Chevli and Dr. Amichand Shah. Paragraph 2 stated they appeared before the Industrial Court and contended it had no jurisdiction; paragraph 3 stated the Court proceeded with the references. Reading those averments together the Court found that they constituted a clear allegation that the petitioners had sought relief (a demand for justice) by protesting the jurisdiction and that the Industrial Court's proceeding notwithstanding constituted a denial of justice.
- The affidavit of Surajram Hathiwalla similarly averred that an objection was taken before the Industrial Court and, despite an adjournment and subsequent steps, the Industrial Court proceeded. The Court concluded there was substantial compliance with s.46 and that the learned Judge had taken too technical a view.
2. Availability of Relief Under Section 45 to Restrain the Industrial Court
- The learned Judge had taken the view that section 87(a)(vi) made it the Industrial Court's duty to decide disputes referred under sections 71–73 and that it had neither authority nor duty to investigate the validity of the reference; hence the petition to restrain the Industrial Court was misconceived.
- Chagla, C.J. rejected the narrow formulation that relief under s.45 is available only where a statute specifically provides for forbearing. The Court clarified the governing principle: s.45 relief is available where there is a duty cast by law upon a public officer or statutory authority and the officer acts in an unauthorised, irregular or improper manner in discharging that duty. Where a public authority purports to discharge a statutory duty in a manner not authorized by law, the High Court can, under s.45, compel the authority to forbear from acting contrary to statute.
- The Court analysed the Bombay Industrial Relations Act itself. Section 73 empowers the Provincial Government to refer an industrial dispute to the Industrial Court. Section 87(a)(vi) imposes on the Industrial Court the duty to decide disputes referred under sections 71–73. The Court drew the logical consequence: the Industrial Court is empowered and obliged to decide only disputes that fall within the statutory descriptions in those sections; if it attempts to decide a dispute that does not fall within those provisions it is acting unauthorisedly and irregularly.
- On that basis, the Court held that if the petitioners' contention (that the reference did not constitute an industrial dispute within s.73) is correct, the Industrial Court is attempting to act contrary to statute and the High Court can, under s.45, restrain the Industrial Court from proceeding.
3. Distinction from Cases Attacking the Foundation of Authority
- The Court discussed the earlier decision in Lady, Dinbai Petit v. Noronha. In that case the arbitration derived from an acquisition under the Defence of India Act; the Court had held that where the very foundation of the arbitrator's authority (the acquisition enabling appointment) is denied, an order under s.45 cannot be obtained because there is nothing left that is incumbent upon the arbitrator to do or forbear.
- Applying that principle, Chagla, C.J. emphasised the crucial distinction: in the present case the petitioners did not challenge the foundation of the Industrial Court's authority. The foundation is the Bombay Industrial Relations Act itself; the notification by Government only effected a reference to that statutory authority. The petitioners accept the Industrial Court as a statutory authority and only contend that the particular reference is outside the ambit of section 73. Thus they attack the validity of the notification/referral as exceeding the statute rather than denying that the Industrial Court exists or has statutory foundation.
- Because the petitioners accept the underlying statutory foundation and argue only that the Industrial Court is acting beyond its statutory powers in respect of this reference, the Court concluded that s.45 relief is not precluded by the reasoning in Dinbai Petit.
4. Support from Subsequent Decisions
- The Court noted a Calcutta High Court decision (and subsequent consideration by the Federal Court) on a related factual matrix where an order under s.45 was entertained against an arbitrator/Industrial Court and the merits were considered. Although the Federal Court did not decide in express terms the availability of s.45, its conduct of the merits was treated as implying that a s.45 petition can be maintainable when an Industrial Court purports to entertain references outside the statutory ambit.
Holding and Implications
Holding (final disposition): The Court concluded that the learned Judge erred in dismissing the petition on the preliminary grounds identified. The appeal was allowed, the order of Mr. Justice Tendolkar was set aside, and the petition was directed to be remitted to the learned Judge to be disposed of on the merits. Costs were awarded as follows: respondent No. 1 to pay the costs of the appeal and the costs of the hearing before Mr. Justice Tendolkar; respondent No. 2 to bear his own costs of the appeal.
Core Ruling: ALLOW THE APPEAL; ORDER SET ASIDE; PETITION REMITTED FOR MERITS.
Practical and legal implications (as explained by the Court in the opinion):
- The Court affirmed that section 46 of the Specific Relief Act requires substantial compliance in the affidavit supporting a section 45 petition; literal formulaic wording is not mandatory so long as the affidavit clearly shows a demand for justice and a denial thereof.
- The Court held that relief under section 45 of the Specific Relief Act can be available to restrain a statutory tribunal (here, the Industrial Court) from proceeding with a reference if the tribunal is purporting to decide matters outside the statutory powers conferred upon it (i.e., acting unauthorisedly or irregularly). It is sufficient that a duty be cast by law upon the public authority and that the authority attempts to act otherwise than the statute permits.
- The opinion distinguished situations where the very foundation of a tribunal's authority is denied (in which case s.45 relief may not lie) from situations where the tribunal's statutory foundation is accepted but it is alleged to be exceeding its statutory jurisdiction in a particular reference (in which case s.45 may lie).
The opinion remitted the case for determination on the merits; it did not itself decide the substantive question whether the particular references were outside the ambit of section 73.
Additional Procedural and Case Details Noted
Bench and participation: Chagla, C.J. delivered the opinion; Bhagwati, J. agreed.
Original judge below: Mr. Justice Tendolkar (order dismissed petition on preliminaries).
Counsel/Attorneys recorded in the opinion: Ambubhai & Diwanji for appellants; Little & Co. for respondent No.1; Bhaishankar, Kanga & Co., Little & Co. for respondent No.2.
Formal disposition recorded in the opinion: "Appeal allowed." (Entry signed A.J.P.)
Chagla, C.J:—
This is an appeal from an order of Mr. Justice Tendolkar by which he dismissed the appellants' petition for an order under s. 45 of the 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 May 4, 1948, referred the dispute to the arbitration of the Industrial Court under s. 73 of the 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 s. 45 calling upon the Industrial Court to forbear from arbitrating upon the industrial dispute referred to them by the Provincial Government. Mr. Justice Tendolkar took the view that the provisions of s. 46 of the Specific Relief Act were not complied with and therefore the petition was bound to fail.
It is perfectly true that the provisions of s. 46 are mandatory in their character and a non-compliance of those provisions would result in a petition under s. 45 being dismissed. What s. 46 requires is that the application under s. 45 has to be founded on an affidavit of the person injured and the affidavit has to state his 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, s. 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 paragraph 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 May 4, 1948, and in paragraph 3 they further proceed to state that the Industrial Court however proceeded with the references. In my opinion, reading paragraphs 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 October 4, 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 s. 46, and I am of the opinion, looking at these two affidavits, that there is a substantial compliance with the provisions of s. 46.
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 s. 45. The learned Judge took the view that under s. 87(a)(vi) of the Bombay Industrial Relations Act it was the duty of the Industrial Court to decide industrial disputes referred to it under s. 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 s. 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 s. 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 of 1946) itself, s. 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 s. 73. The turning to s. 87, that section provides what are the duties of the Industrial Court, and one of the duties under sub-s. (a)(vi) is to decide industrial disputes referred to it under s. 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 s. 71, 72 or 73. If the Industrial Court purports to decide any industrial dispute which is not covered by s. 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 s. 71 or 72 or 73, this Court can undoubtedly act under s. 45 and compel the Industrial Court to forbear from proceeding with that reference.
The contention of the petitioners is that what is referred to the Industrial Court by the Provincial Government under s. 73 is not an industrial dispute at all within the meaning of s. 73, and the Industrial Court is purporting to proceed with a reference which does not fall within the ambit of s. 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 s. 73 do not constitute an industrial dispute within the meaning of s. 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 s. 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 s. 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 s. 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 s. 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 s. 73. They accept the position that it is the duty of the Industrial Court to deal with those references under s. 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 s. 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 s. 73. Therefore, if the petitioners say that the dispute does not fall within the ambit of s. 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.
Reference was made to a decision of this Court to which I was a party, reported in Lady, Dinbai Petit v. Noronha. 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 s. 45 of the Specific Relief Act. Both Mr. Justice Kania, 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 s. 45 of the 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-cl. (b) of s. 45]. “Now to my mind it is essential that there must be in the 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 s. 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.
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 forbear from proceeding with a reference which did not fall within the ambit of s. 73.
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 s. 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 out-side 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 s. 45 could not be made in that particular case The Calcutta High Court held that an order under s. 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 s. 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 s. 45 of the 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 reinstatement 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 s. 45 of the 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 s. 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.
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.
Costs of the appeal and costs of the hearing before Mr. Justice Tendolkar will be paid by respondent No. 1. Respondent No. 2 to bear his own costs of the appeal.
Bhagwati, J.:—I agree.
Attorneys for appellants: Ambubhai & Diwanji.
Attorneys for respondent No. 1: Little & Co.
Attorneys for respondent No. 2: Bhaishankar, Kanga & Co., Little & Co.
Appeal allowed.
A.J.P
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