Patna Electric Supply Workers Union v. A. Hassan And Another Opposite Party.

Raj Kishore Prasad, J.:— This application, under Articles 226 and 227 of the Constitution has been presented by the petitioner Patna Electric Supply Workers Union for an appropriate writ to call up and quash the order dated the 20th March, 1956, which is Annexure ‘C’ to its affidavit, of the Opposite Party 1, who is the Appellate Authority under Industrial Employment (Standing Orders) Act, 1946 (Act XX of 1946), which will hereafter be referred to as “the Act.”

2. On the above application, a rule was issued by this Court against the opposite party to show cause why the just mentioned order or Opposite party 1, purported to have been passed obviously in exercise of his inherent powers, as no section of the Act is mentioned therein, should not be quashed. Cause has been shown against this rule by Mr. Ray Paras Nath, Government Pleader, on behalf of Opposite Party 1, and by Mr. K.D Chatterji, on behalf of Opposite Party 2. The Patna Electric Supply Company Ltd., Opposite Party 2, has also filed a counter affidavit in reply to the affidavit of the petitioner, and, along with, it has filed also a copy of the order dated the 23rd February, 1956, passed by Opposite Party 1 under S. 6(1) of the Act, which is Annexure ‘B’ to its counter affidavit. The petitioners' case is that Opposite Party 2 submitted to the Certifying Officer under the Act, a draft of the existing Standing Orders for modification under S. 10(2) of the Act. The Certifying Officer, acting under S. 5 of the Act, certified the aforesaid draft on the 24th January, 1955, and as required by section 5(3) of the Act, the Certifying Officer sent copies of the Certified Standing Orders to the parties concerned.

3. Against the above order of the Certifying Officer, the petitioners as well as opposite party 2 appealed to the Appellate Authority under S. 6(1) of the Act. The Appellate Authority opposite party 1, decided the appeal on the 23rd February, 1956, and as required by S. 6(2) sent copies of the Standing Orders as certified by him and authenticated in the prescribed manner to the parties concerned. On the 28th February, 1956 opposite party 2 made an application to opposite party 1 to modify the Certified Standing Order No. 8 and Standing Order No. 17(b)(i) on the ground of mistakes. In the present case, we are concerned with the Certified Standing Order No. 17(b)(i) which was sought to be modified on the ground that the word “along” appearing therein was a mistake for the word “alone” and, therefore, the mistake should be rectified. Opposite party 1 after hearing the parties on 20-3-1956 allowed the application of opposite party 2. He held that the word “along” was obviously a mistake for the word “alone” and, therefore, the word “along” should be substituted by the word “alone” and, accordingly, corrected the above error. Against this order, the petitioner has moved this Court.

4. Mr. Ranen Roy in support of the rule, attacked the validity of the order of opposite party 1, which is Annexure “C” to the petitioner's affidavit, on the ground that, apart from S. 10, there is no provision in the Act empowering the Appellate Authority after, it has certified the Standing Orders under S. 6(1) of the Act to correct even such a mistake.

5. In order to determine the question presented by the petitioner for determination of this Court, it is necessary to know the circumstances in which the application on 28-2-1956 was made by opposite party 2, and the impugned order was passed by opposite party 1 on 20-3-1956.

6. In Appendix A to the Bihar Industrial Employment (Standing Orders) Rules, 1947, Model Standing Orders are given as required by R. 5 of the Rules. Model Standing Order No. 14 deals with disciplinary action for misconduct. Model Standing Order No. 14(3)(a) is as below:

“(3) The following acts and omissions shall be treated as misconduct:

(a) Wilful insubordination or disobedience, whether “alone” or in combination with others, to any lawful and reasonable order of a superior,

7. Standing Orders certified by the Certifying Officer under S. 5(2) contained, inter alia Standing Orders Nos. 16(1) and 17(b)(i). Standing Order No. 16(1) of the Certified Standing Orders reads thus:

“Wilful insubordination or disobedience whether ‘alone’ or in combination with another or others of any lawful and reasonable order of a superior.”

8. Standing Order No. 17(i), of the Certified Standing Orders reads as below:

“Wilful insubordination or disobedience whether ‘along’ or in combination with others, to any lawful and reasonable order of a superior.”

9. Opposite party 2 has stated in its counter-affidavit that as Standing Orders Nos. 16(1) & 17(b)(i) above mentioned, were identical and appeal was filed by the petitioner under S. 6(1) of the Act against the order of the Certifying Officer certifying the Standing Orders under S. 5(2) on the ground that as Standing Orders Nos. 16(1) and 17(b)(i) were identical, both should not be retained, and, therefore, suggested that Standing Order No. 17(b)(i) should be deleted. The Appellate Authority, opposite party 1, acting under S. 6(1) of the Act, agreed with the contention of the petitioner and deleted Standing Order No. 16(1) by its order dated 23-2-1956.

10. The above order of the Appellate Authority under S. 6(1) of the Act regarding Standing Orders Nos. 16(1) and 17(b)(i) as mentioned in Annexure “B” of the counter-affidavit, is to the following effect:

11. It was pointed out on behalf of the union that Standing Order No. 17(b)(i) was redundant as it was repetition of Standing Order No. 16(1). It was said that it may lead to ambiguity and confusion. It is true that both are identical and it was unnecessary to mention it both under Standing Order No. 16 as well as 17. I, would, therefore, delete Starling Order No. 16(1) and allow the same to remain under Standing Order No. 17(b)(i) ……”

12. On the application of opposite party 2 made on 28-2-1956, to the Appellate Authority, opposite party 1, he on 20-3-1956, posed the following order.

2. As regards cl. 17(b)(i) the word “alone” was said to be a mistake for “alone” on behalf of the management. Sri Singh appearing for the opposite party objected to it and contended that the (word?) alone was to be found there in the Certified Standing Orders of 1949 of which a printed copy was produced by him. He argued that in any case it was not a clerical mistake and the correction could not be done at this stage. The Model Standing Order on the point has the word ‘alone’ there and not “along” as mentioned in the Standing Order in question. It has also to be noted that sub-cl. (1) under cl. 16 of this Standing Order was deleted on the contention of the Union that it was identical to the Standing Order No. 17(b)(i), cl. 16(1) also recites the word ‘alone’ and not “along,” there. The construction itself becomes clumsy if the word ‘along’ is allowed to stand there. Further wilful insubordination or disobedience by individual worker would go without any penalty if the word, “alone” is not inserted in 17(b)(i). Considering all these it is clear that as in the Model Standing Orders what was intended was the word ‘alone’ and it was by mistake that it: went unnoticed. In the interest of both it is necessary that this error should be rectified and I would accordingly order that the word ‘along’ be substituted by the word ‘alone’. Thus the petition is deposed of.

A. Hassan

Appellate Authority, Bihar,”

13. This is the order which is challenged and impugned as invalid and without jurisdiction by the petitioner.

14. The sole, and the crucial question, therefore, for our determination is: Has an Appellate Authority under S. 6 of the Act any power to entertain an application for correction of mistakes in Certified Standing Orders after they had been certified by it on appeal under S. 6(1) of the Act, and, consequently to order correction of such mistakes, even if they were in the nature of clerical mistakes, apart from S. 10 of the Act? For a proper and correct determination of this question, it is necessary at first to know the scheme of the Act and the ambit of the jurisdiction of the Appellate Authority under the Act. This Act was enacted to require the employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. As Standing Orders defining the conditions of recruitments, discharge, disciplinary action, holidays, leave etc., went a long way to minimise friction between the management and workers in industrial undertakings, the Act was, with this end in view, enacted in 1948. This Act came into effect on 23-4-1946. Section 3(1) requires the employer to submit to the Certifying Officer, within six months from the date on which this Act became applicable to an industrial establishment, draft Standing Orders proposed by him for adoption in his industrial establishment. Section 3(2) provides that in such draft for every matter set out in the Schedule attached to the Act, which may be applicable to the industrial establishment, and where made standing orders have been prescribed shall so far as practicible provision shall be made in conformity with such model. Section 4 lays down the conditions for certification of standing orders. Section 5 gives power to the Certifying Officer to decide whether or not any modification of or addition to the draft submitter by the employer is necessary to render the draft Standing Orders certifiable under this Act, and S. 5(2) further requires the Certifying Officer to make an order in writing accordingly after hearing the parties concerned. After certification of Standing Orders under S. 5 by the Certifying Officer, any person aggrieved by such an order has been given a right of appeal to the Appellate Authority under S. 6(1). Section 6(1) provides that the decision of the Appellate Authority shall be final, and the Appellate Authority shall by order in writing, confer the standing orders either in the form certified by the Certifying Officer or after amending the said Standing Orders by making such modifications thereof or addition thereto as I think necessary to render the Standing Orders certifiable in accordance with the provisions contained in S. 4 of the Act. Section 7 deals with the date of operation of standing orders. Section 11, vests Certifying Officers and Appellate Authorities with powers of Civil Court for certain purposes. Section 10 deals with duration and modification of standing orders.

15. Sections 10 and 11 are important, and very material for the purpose, and therefore, they are reproduced below, in extenso. Section 10, before its amendment in 1953, stood as under:

“10. Duration and modification of standing orders:

(1) Standing Orders finally certified under this Act shall not except on agreement between the employer and the workman, be liable to modification until the expiry of six months from the date on which the standing orders or the fast modifications thereof came into operation.

(2) An employer desiring to modify his standing orders shall apply to the Certifying Officer in that behalf, submitting five copies of the standing orders in which shall be indicated the modifications he proposes, and where such modifications are made in agreement with the workmen, a certified copy of the agreement shall accompany the application;

(3) The foregoing provisions of this Act shall apply in respect of an application under sub-s. (2) as they apply to the certification of the first standing orders.”

16. Section 11 has not been amended. It reads thus:

“11. Certifying Officers and Appellate Authorities to have powers of Civil Court. Every Certifying Officer and Appellate Authority shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, and compelling the discovery and production of documents, and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Cr PC, 1398 (V of 1898).”

17. The other sections are not relevant for the urpose of determination of the question in issue, may here state that S. 13A, which deals with interrelation, etc. of standing orders, was introduced by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, (Act XXXVI of 1956), which came into effect on the 28th August, 1956. Section 13 A provides that if any question arises as to the application or interpretation of a standing order certified under this Act, any employer or workman may refer the dispute in question to any of the Labour Courts constituted under the Industrial Disputes Act, 1947 (XIV of 1947) and, the Labour Court, after hearing the parties, shall decide the question and such decision shall be final and binding on the parties. The new S. 13A would have been material for our purpose, if it had been introduced earlier than the 20th March, 1956, when the impugned order was passed. But as S. 13A came into effect on the 28th August, 1956, long after the impugned order was passed earlier on the 20th March, 1956, it is not necessary to determine the scope of the new S. 13A.

18. We, therefore, find that the Act which consists of 15 sections only does not specifically provide any provision like Sections 151, 152 and 153 of the CPC. Even S. 11 of the Act vests Certifying Officers and Appellate Authorities with only certain powers of Civil Courts for the purposes mentioned therein. There is, therefore, no manner of doubt on reading the Act as a whole that within the four corners of the Act, no specific provision is, to be found empowering an Appellate Authority, after it has Certified Standing Orders under S. 6(1) of the Act, to correct the mistakes in the Certified Standing Orders, finally certified under S. 6(1) of the Act, before the expiry of six months from the date on which the Standing Orders or the last modifications thereof came into operation, except in the manner provided in S. 10 of the Act. The legal position, therefore, is that it the Appellate Authority certifies the Standing Orders under S. 6(1), such Standing Orders under S. 7 came into operation on the expiry of seven days from the date on which copies of the order of the Appellate Authority are sent under sub-s. (2) of S. 6. Such standing orders, finally certified thus by the Appellate Authority under S. 6(1), shall not, as provided by S. 10, except on agreement between the employer and the workmen, be liable to modification until the expiry of six mouths from the date on which the standing orders or the last modifications thereof came into operation.

19. In the instant case, the Appellate Authority certified the Standing Orders under S. 6(1) on the 23rd February, 1956, and sent copies of such standing orders as certified by it as required by S. 6(2) to the parties concerned, on the 27th February, 1936. The Appellate Authority, therefore, in view of the provisions of S. 10 of the Act had no power to modify the certified standing orders within six mouths from the 6th March, 1958, that is, on the expiry of seven days from the 27th February, 1956, when copies of the order of the Appellate Authority were sent as required by S. 6(2), except, of course, on agreement between the employer and the workmen, which here was not the case.

20. On the true construction of the Act, particularly Ss. 6 and 10 of the Act, therefore, it is plain that the Appellate Authority, opposite party 1, had no power to pass the order which he did on the 29th March, 1956, or even to entertain the application of opposite party 2, which was made by it on the 28th February, 1956, and, accordingly, the impugned order, prima facie, unless otherwise justified, was obviously without jurisdiction.

21. The next question is that, apart from the Act, even when there is no specific provision in the Act itself vesting the Appellate Authority with inherent powers or like powers envisaged by Sections 151, 152 and 153 of the CPC, which have not been made applicable to the Act, or to the Appellate Authority by the Act itself, can it be said that, even in the absence of such express provisions, the Appellate Authority must be deemed to have inherent powers to correct the so called mistakes in the Standing Orders finally certified by it under S. 6(1) of the Act, when its order confirming the Standing Orders after making modifications has become final under S. 6(1) of the Act?

22. I want to make it clear that the Appellate Authority may be right or may be wrong in the view it has taken of the so called mistake, and, on that view in rectifying that error; but it seems to me that this is not a question of that vital character which would justify this Court in issuing a writ under Article 226, or Article 227, if it had held that the Appellate Authority did possess such a power of correcting mistakes in the finally certified Standing Orders which became final under S. 6(1) of the Act. If therefore, we had held that the Appellate Authority was clothed with such a power, and that it acted within the ambit of its powers in ordering rectification of the mistake, we would have declined to interfere with the order which, to us, seems to be quite proper on the facts stated earlier, but if the Appellate Authority had no power, the correction of the mistake, even if its order correcting this mistake be proper, it must be quashed as without jurisdiction.

23. None of the parties have, beyond referring to the sections in the Act itself, cited any authority in support of their respective contentions.

“Appellate Authority” has been defined in S. 2(a) of the Act thus:

“2. Interpretation—In this Act, unless there is anything repugnant in the subject or context.

(a) ‘Appellate Authority’ means an Industrial Court, wherever it exists or in its absence an authority appointed by the appropriate Government by notification in the official Gazette to exercise in such area as may be specified in the notification, the functions of an appellate authority under this Act”.

24. Here the opposite party 1 appears to have been appointed an Appellate Authority by the State Government for the purposes of the Act to exercise the functions of the Appellate Authority under the Act.

25. It is well settled law that the powers of a tribunal of special jurisdiction are circumscribed by the statute under which it is constituted. Such tribunal must act within its powers conferred on it;by the statute, which creates it. Such Tribunal must act within its powers and so long as it does, its orders whether right or wrong, cannot be challenged. But where, and in so far as, its actions are in excess or in contravention of the powers conferred on it, they are ultra vires and of no legal effect.

26. Here the Act, under consideration, is self contained, and has created a special tribunal for deciding the questions arising between the parties under the Act. The scope and ambit of the jurisdiction conferred on the Appellate Authority under the Act can be determined and found only by reference to Ss. 6, 10 and 11 of the Act. The Appellate Authority being an authority of limited jurisdiction and a creation of the Act must be confined to the exercise of such functions and powers as are actually conferred on it. The Automobile Products of India Ltd. v. Rukmaji Bala, 1955-1 S.C.R 1241 : ((S) AIR 1955 S.C 258 (A) which was affirmed in Rohtas Industries Ltd. v. Brijnandan Pandey, 1956 S.C.R 800 : ((S) AIR 1957 SC 1 (B)).

27. Reading Ss. 6 and 10 together, therefore, to me it appears that S. 10 expressly excludes the power of the Appellate Authority from making any, modification in the Standing Orders as certified by, it under S. d(1) except in the manner provided in S. 10. The substitution of the word “alone” for “along”, even on the ground of mistake does in my opinion, amount to modification of the Standing Orders finally certified under S. 6(1) of the Act in contravention of S. 10.

28. In this context, reference may be made to the case decided by the Supreme Court recently in, J.K Iron and Steel Co. Ltd. Kanpur v. Iron and Steel Mazdoor Union Kanpur, (S) AIR 1956 S.C 231 : 1955-2 S.C.R 1315 (C). In this case, their Lordships were considering the scope and authority of an adjudicator under the Industrial Disputes Act, 1947, read with U.P State Industrial Tribunal Standing Orders, 1951, Bose, J., who delivered the judgment of the Court observed:

“All the same, wide as their powers are, these Tribunals are not absolute, and there are limitations to the ambit of their authority …… Their powers are derived from the statute that creates them and they have to function within the limits imposed there and to act according to its provisions. Those provisions invest them with many of the ‘trappings’ of a Court and deprive them of arbitrary or absolute discretion and power.”

29. Very broadly, no doubt, the Appellate Authority, under the Act, follows the pattern of the Civil Courts, but it is not a Court, much less a Civil Court, to which, unless expressly applied, the provisions of the Code of Civil Procedure can as a rule apply. From the scheme of the Act, we find that, no doubt, the provisions therein invest the Appellate Authority with many of the “Trappings” of the Court, but they do not invest the Appellate Authority in express, terms with inherent powers so as to enable it to amend mistakes in the Standing Orders which have been finally certified and which have become final under S. 6(1) of the Act, apart from the procedure indicated in and provided by S. 10 of the Act.

30. In this view of the matter, the Appellate Authority, as it derived its powers from the Act which created it, must function within the limits imposed thereunder. In my opinion, therefore, the rule, that every Court, in the absence of express provision to the contrary, must be deemed to possess the inherent power in its very constitution; all such powers, as are necessary to do the right and to undo wrong in the case of administration of justice, which applies to all Courts, cannot apply to an Appellate Authority under the Act.

31. In my judgment, therefore, in any view of the matter, the impugned order is without jurisdiction, and as such, it must be quashed.

32. In the result, the rule is made absolute, and a writ in the nature of certiorari must go quashing the order dated the 20th March, 1956, Annexure “C”, of opposite party 1 on the ground that it had no power to pass the impugned order, apart from the provisions of S. 10 of the Act. The application is accordingly allowed with costs, hearing fee Rs. 100/-.

33. V. Ramaswami, C.J:— I agree.

R.G.D

34. Rule made absolute.