(The Chief Justice)
1. This appeal by the Management is from 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 24th February, 1968. That reference was made under S. 10(2) of the Industrial Disputes Act, 1947, and on a joint application by the management of the Vellamalal estate, Valpari and the workmen represented by the Secretary of the estate staff’ 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 15th July, 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 by 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 workman contended that the management was estopped from questioning the jurisdiction to adjudicate on the reference as it was one under S. 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 S. 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 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 of further 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 S. 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 workmen. 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 estoppel, 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 non-employment, 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. S. 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 to the dispute and so on. But sub-S. 2 is phrased as under:—
“Where the parties to an industrial dispute, apply in the prescribed manner, whether jointly or separately, for 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.”
3. R. 28, made with reference to S. 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 disputed/maters 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 S. 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 R. 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 defined 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 concludes before the Presiding Officer the question of jurisdiction. We do not think that the position is different under Sub-S. (2) of S. 10. Like a reference under Sub-S. (1), so a reference under Sub-S. (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-S. (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-S, (2) of S. 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-S. (2) of S. 19 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 Sub-S, (2) of S, 10, nor R. 28, read with those of Form E, suggest in any way anything to support that view. On the other hand, it seems to us that the opening words of Sub-S. (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 could 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. 15 Halsbury page 204 paragraph 384 points out that lack of jurisdiction deprives the judgment of any effect, whether by estopped 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 Company v. Corporation of the City of Toronto(1) 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 conduct of the parties in the form of estoppel or waiver or silence. Vide 9 Halsbury page 352. In Hinde v. Hinde it was pointed out that though the parties may agree on amounts or may make agreements 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 Council of Shrofshire(2) it was held that where there was initial lack of jurisdiction, it could not be supplied by means of waiver.
4. We are clear therefore, that the Presiding Officer's jurisdiction being entirely basically dependent on an existing or an apprehended industrial dispute, the appellant was not estopped in this case from contending lack of jurisdiction in the Presiding Officer, notwithstanding that the reference was made on a joint application under S 10(2) of the Industrial Disputes Act.
We are also of the view that the Presiding Officer was right when he said that George Vaz was not a workman. The Presiding Officer has, as we see from his award, taken into account all the salient facts into account, and his finding in this regard is not vitiated by any error.
5. But that would not conclude the matter. While the industrial dispute should be among other things between the management and workmen, the dispute need not be connected with any workmen. What the definition of the expression ‘industrial dispute’ says is that it may be connected with the employment or non-employment or the terms of employment or the conditions of labour of any person, not necessarily a workman. The fact that George Vaz was, as found by the Presiding Officer, not a workman would not by itself conclude that the dispute was not an industrial dispute. But then, on the one hand, it is contended that the question that if George Vaz was an independent contractor, whether there was a community of interest between him and the workman has not been raised by the management in its pleadings. On the other hand, it is asserted for the Management that it has been raised. By a reference to the pleadings themselves, we find that all that had been stated by the management in its objection statement was that George Vaz was not a workman within the meaning of the Industrial Disputes Act, and this statement was followed by the facts which were intended to show that he was not a workman, and then at the conclusion of the statement, the management stated that George Vaz was a contractor pure and simple and beyond the purview of the Industrial Disputes Act. It is said that this meant or implied that the point as to the community of interest as between the workman and George Vaz was raised in the Objection statement. We do not, think that this is a correct reading of the effect of the objections statement. It seems to us that the objection statement did not have in its view this aspect that an industrial dispute may be connected with somebody who is not a workman and that, therefore, it was necessary to plead that even on that basis there was no community of interest between such a person and the workman.
6. The result is we confirm the remit order of Palaniswamy J. but the Presiding Officer, while disposing of the reference, will do so in accordance with the observations contained in this judgment and according to law. There will be no order as to costs.
V.C.S