KERALA AGRO MACHINARY CORPORATION LTD. v. INDUSTRIAL TRIBUNAL
1987-11-30
K.SREEDHARAN
body1987
DigiLaw.ai
JUDGMENT : K. Sreedharan, J.—The short question that arises for consideration is whether the Industrial Tribunal has' got jurisdiction to set aside the order passed by the Certifying Officer under the Industrial Employment (Standing Orders) Act, 1946 (for short "the Act"), and to remand the matter for fresh consideration by that officer. 2. The facts are as follows: The petitioner is a subsidiary of the Kerala Agro Industries Corporation Limited, a concern fully owned by the Government. On 23rd April, 1976, the number of workmen employed in the concern reached 100. Therefore, it came under the purview of the Act. On 4th June, 1976, the petitioner sent draft standing orders in accordance with Section 3 of the Act to the Certifying Officer for certification. Particulars as per the Kerala Industrial Employment (Standing Orders) Rules, 1958 (for short "the Rules") were also furnished. There was only one trade union at the time when the draft standing orders were forwarded for certification. That union is the third respondent herein. After prolonged hearing certification was granted by the Certifying Officer by his order dated 19th February, 1981. The fourth respondent, secretary of another union, challenged the standing orders in appeal. The Industrial Tribunal, Calicut, was the authority having jurisdiction at that time. It entertained that appeal as S.O. Appeal No. 1 of 1981. The third respondent filed another appeal objecting to certain provisions of the standing order. It was numbered as S.O. Appeal No. 2 of 1981. Due to the change in jurisdiction, the case was transferred to the Industrial Tribunal, Alleppy. Before the Tribunal the appeals were numbered as S.O. Appeals Nos. 2 of 1982 and 3 of 1982 respectively. After hearing the parties, the Industrial Tribunal, Alleppy, set aside the certified standing orders and directed the certifying officer to consider the matter afresh after due compliance with the provisions contained in Section 5 of the Act. The Tribunal directed the management to furnish the list of unions now in existence before the Certifying Officer. Aggrieved by the order of remand, the petitioner has filed this original petition. 3. No counter-affidavit has been filed by any of the respondents. The fourth respondent was served with notice of the original petition. None appeared to make any representation on its behalf. 4.
Aggrieved by the order of remand, the petitioner has filed this original petition. 3. No counter-affidavit has been filed by any of the respondents. The fourth respondent was served with notice of the original petition. None appeared to make any representation on its behalf. 4. Rule 5 of the Rules, inter alia, provides that the employer should give the names of trade unions to which the workmen belong when it sends up the draft standing orders for certification u/s 3 of the Act. The petitioner sent draft standing orders on 4th June, 1976. On that date all the workmen in the concern belonged to the third respondent-union. The fourth respondent union was not in existence when the draft standing orders were forwarded for certification. They were registered as a trade union only on 9th October, 1978 (this fact is not in controversy). So there was no possibility of giving its name to the Certifying Officer. The fourth respondent after coming into existence in 1978 did not care to get themselves impleaded in the certification proceedings. They kept away from the proceedings. The Certifying Officer passed final order on 19th February, 1981. If the fourth respondent was interested in contesting the matter, they ought to have got themselves impleaded in the proceedings and submitted their contentions. There was no liability on the part of the petitioner to implead the fourth respondent. Nor was it their duty to inform the Certifying Officer of the coming into existence of the fourth respondent union. 5. Against the Certified Standing Orders, the fourth respondent preferred an appeal before the Tribunal. The petitioner would contend that the appeal was incompetent. According to the learned Counsel appearing for the petitioner, the fourth respondent, who had not taken part in the certification proceedings, had no right to challenge the Certified Standing Orders before the Tribunal. I find it difficult to accept this argument.
The petitioner would contend that the appeal was incompetent. According to the learned Counsel appearing for the petitioner, the fourth respondent, who had not taken part in the certification proceedings, had no right to challenge the Certified Standing Orders before the Tribunal. I find it difficult to accept this argument. Section 6(1) of the Act as it stood at the relevant time was in the following terms: Any person aggrieved by the order of the Certifying Officer under Sub-section (2) of Section 5 may, within thirty days from the date on which copies are sent under Sub-section (3) of that Section, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing confirm 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 additions thereto as it thinks necessary to render the standing orders certifiable under this Act. 6. The above provision shows that any person aggrieved by the order of the Certifying Officer can prefer an appeal. The person aggrieved need not be a party to the proceedings before the Certifying Officer. In this view, the 4th respondent-union can be considered to be a person aggrieved. If they are not satisfied with the certified standing orders, they are entitled to challenge the same. Therefore, the appeal preferred by the 4th respondent was proper. 7. Now, the question that arises for consideration is whether the Tribunal was justified in setting aside the order of the Certifying Officer and in remanding the matter for fresh consideration. The powers of the appellate authority are specified in Clause (1) of Section 6 of the Act quoted above. The appellate authority has the power to confirm the order certified by the officer, to amend or modify and add to the standing orders as it thinks it necessary to make the standing orders certifiable under the Act. The power of the appellate authority includes adjudication of fairness or reasonableness of the standing orders as well. As per Clause (2) of Section 6, the appellate authority is to send authenticated copies of the order to the parties concerned if it amends, modifies or adds to the order passed by the Certifying Officer. In case the appellate authority is confirming the order, then there is no necessity to forward copies of its order. 8.
As per Clause (2) of Section 6, the appellate authority is to send authenticated copies of the order to the parties concerned if it amends, modifies or adds to the order passed by the Certifying Officer. In case the appellate authority is confirming the order, then there is no necessity to forward copies of its order. 8. The first portion of Clause (1) of Section 6 gives a right to any person aggrieved by the order of the Certifying Officer to challenge that order by preferring an appeal. The appellate authority has right to dispose of that appeal by an order which shall be final. The power of the appellate authority is contained in the second part of Clause (1) of Section 6. That power is to confirm the standing order either in the form certified by the officer or by amending the same by making such modifications or additions as it thinks necessary to render the order certifiable under the Act. The right of appeal is conferred by Section 6(1) quoted above. The appellate authority can exercise only those powers conferred on it by the said provision. As per that Section the appellate authority can confirm the order as certified or modify it to make the standing orders certifiable under the Act. The appellate authority has no power to cancel the standing orders that are appealed against. In other words the appellate authority has no jurisdiction to set aside the order passed by the Certifying Officer. 9. The learned Counsel appearing for the 3rd respondent brought to my notice the decision reported in Dharmadas v. State Transport Appellate Tribunal (1962) KLT 505, to contend that the appellate authority has got right to remand the case fresh consideration. The Full Bench was concerned with the powers of the State Transport Appellate Tribunal u/s 64 of the Motor Vehicles Act, 1939. The question that arose for consideration was whether the State Transport Appellate Tribunal can remand a matter to the Regional Transport Authority after setting aside its order. Section 64 of the Motor Vehicles Act reads as follows: Appeals--(1) Any person- xx xx xx xx (i) may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such persons and the original authority an opportunity of being heard, give a decision thereon which shall be final. 10.
10. The power of remand is not specifically mentioned in the Section. But, as pointed out by the Supreme Court in Ram Gopal Vs. Anant Prasad and Another, AIR 1959 SC 851 , the said Section is not concerned with defining the powers of the appellate authority and does not purport to do so. Under such circumstances, the Full Bench held that: An appeal is a complaint to a superior body of an injustice done or error committed by the inferior one with a view to its correction or reversal. It is a creature of statute, not a constitutional or inherent right. But, as pointed out by Maxwell, where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its exercution (11th Edition, page 350). 11. A remand by an appellate court is usually made when the record before it is in such shape that the appellate court cannot in justice determine what final judgment should be rendered and the power to do so cannot but be an essential requisite of the very jurisdiction to entertain the appeal. It is an old maxim of the law that to whomsoever a jurisdiction is given, those things also are supposed to be granted, without which the jurisdiction cannot be exercised: Cui jurisdictio data est, ea quoque concessa essee videntur, sine quibus jurisdictio explicari non potest." 12. This decision, I am afraid, cannot be of any help to solve the dispute in this case. Unlike Section 64 of the Motor Vehicles Act, Section 6 of the Industrial Employment (Standing Orders) Act, 1946, defines and limits the powers of the appellate authority. When the powers of the appellate authority are specified and limited u/s 6(1) of the Act, that authority cannot have any power other than those mentioned in the Section. In this view, I hold that the appellate authority under the Act has no power to set aside the order passed by the Certifying Officer and remand the matter for fresh disposal. 13. The learned Counsel appearing for the 3rd respondent then brought to my notice the decisions in Cheru Ouseph v. Kunjipathumma (1981) KLT 495 and Abdulla v. Rent Controller (1984) KLT 865.
13. The learned Counsel appearing for the 3rd respondent then brought to my notice the decisions in Cheru Ouseph v. Kunjipathumma (1981) KLT 495 and Abdulla v. Rent Controller (1984) KLT 865. In 1981 KLT 495 , M.P. Menon, J. observed: in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a tribunal so that it may effectively exercise its judicial function. In 1984 KLT 865 , Bhat, J., dealing with the powers of the Rent Control Court, observed: It is therefore increasingly being recognised that such tribunals must be treated as possessing inherent power for the performance of their duties and for the purpose of doing justice between the parties. 14. These decisions, according to me, recognised the power of the Tribunals in procedural matters to act even beyond the specific authority conferred on them by the statutes establishing the same. The power that has not been exercised by the Industrial Tribunal can by no stretch of imagination be considered as procedural one. It has set aside the order of Certifying Officer. That order cannot be taken as a procedural one. The power that has been exercised by the Tribunal is one beyond the scope of Section 6(1) of the Act. Therefore the order of remand is one passed without jurisdiction. 15. In view of what has been stated above, I hold that the Industrial Tribunal has no jurisdiction to set aside the standing orders certified by the Certifying Officer and to remand the same for fresh disposal in exercise of the powers u/s 6 of the Act. Therefore, I quash exhibit P-6. The first respondent, the Industrial Tribunal, Alleppey, is directed to take back S.O. Appeal Nos. 2 and 3 of 1982 to its file and to dispose of the same in accordance with law and in the light of the observations made earlier in this judgment. 16. The original petition is allowed in the above terms. No costs.