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2000 DIGILAW 48 (CAL)

ANDAMANS TIMBER INDUSTRIES LTD v. UNION OF INDIA

2000-01-27

RANJAN KUMAR MAZUMDER, VINOD KUMAR GUPTA

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V. K. GUPTA, J. ( 1 ) WITH the consent of the parties, the appeal and the application for stay, treating both as on day's list, are taken up for the final disposal. ( 2 ) THIS appeal is directed against the Judgment and Order dated 13-12-1999 passed by the learned single Judge of this Court, whereby the writ application filed by the appellant against the Order dated 2nd December, 1999, passed by the respondent No. 4, has been dismissed. ( 3 ) IT appears that vide a Notice dated 28-9-99 the appellant declared a lock-out in its factory w. e. f. 29-9-1999. On 2nd December, 1999 the respondent No. 4 passed an order whereby the said lock-out was declared by him as illegal. He in the same Order issued directions to appellant to lift the lock-out with immediate effect and to allow the workers to perform their duties. It was this Order which was challenged by the appellant in the aforesaid writ application which, as noticed above, was dismissed by the learned single Judge, vide the Judgment under challenge in the present appeal. ( 4 ) THE sole contention urged before us by the learned Advocate appearing for the appellant is that the respondent No. 4 did not have any jurisdiction to declare a lock-out as illegal, to direct the management to lift the same, and to allow the workers to perform their duties. Our attention is invited to section 7 of the Industrial Disputes Act and Entry No. 5 in the Second Schedule thereto. A combined reading of section 7 and Entry No. 5 in the Second Schedule to the Industrial Disputes Act clearly suggests that the question relating to illegality or otherwise of a strike or lock-out forms the subject matter of an Industrial Dispute to be adjudicated upon by a Labour Court. Undoubtedly, adjudication of an Industrial Dispute is not within the domain of the appropriate Government. Undoubtedly, adjudication of an Industrial Dispute is not within the domain of the appropriate Government. Initially reliance was placed by the respondents upon sub-section (3) of section 10 of the Act suggesting that the impugned Order was passed by the respondent No. 4 because of the pendency of a reference of an Industrial Dispute to a Board, Labour Court, Tribunal or a National Tribunal but later on this submission was withdrawn after it was realised by the learned Advocate appearing for the Respondents that, in fact as at the time of the passing of the impugned Order, no such reference was pending before any Board, Labour Court, Tribunal or National Tribunal. In any case, even a cursory look at sub-section (3) of section 10 of the Act suggests that even under this provision, the appropriate Government does not have the power to declare a strike or a lock out as illegal. Under this provision the appropriate Government's power is limited to pass an Order prohibiting the continuance of a strike or a lock-out in connection with an Industrial Dispute which either may be in existence as on the date of the reference or which may be forming the subject matter of such a pending reference before a Court, Labour Court, Tribunal or National Tribunal. The respondent No. 4, in our view, therefore, patently and inherently lacked any jurisdiction in declaring the lock-out as illegal and in passing the impugned Order. ( 5 ) IN our view, except under the circumstances as covered by sub-section (3) of section 10 of the Act, which we have discussed above, the appropriate Government has no jurisdiction whatsoever in dealing with any matter relating to the declaration of a lock-out or a strike as illegal because such a matter forming the subject matter of an Industrial Dispute squarely falls within the ambit, scope and purview of Entry No. 5 in the second schedule, coupled with the question of jurisdiction of a Labour Court for adjudication of such a Dispute under section 7 of the Act. Apernsal of the Judgment of the learned single Judge, however, suggest that the learned single Judge did not go into this question of jurisdiction at all. Apernsal of the Judgment of the learned single Judge, however, suggest that the learned single Judge did not go into this question of jurisdiction at all. The Judgment under appeal, according to us, suffers from this error of law in as much as the learned single Judge went into the question and issue of the merits of the declaration of lock-out, or as we may say, relating to the illegality or legality of the lock-out, rather than finding out as to whether the respondent No. 4 had any jurisdiction to declare the lock-out illegal or not. Where an executive or administrative order is challenged before a writ Court on the ground of total lack of jurisdiction, and the writ Court, prima facie, finds that the said order, in fact, suffers from such a jurisdictional error, there is no need at all to go into any question relating to the merits anterior to the passing of the impugned order. It becomes imperative in such a situation to first examine the legality and validity of the impugned order on the anvil of the jurisdictional question and only then to proceed further to examine other relevant aspects, if the writ Court finds that the impugned order did not suffer from any error of jurisdiction. ( 6 ) AS we have already observed, we are convinced that the impugned order was bad in law, suffering patently as it were for an inherent lack of jurisdiction. While, therefore, setting aside the Judgment of the single Judge, we also quash and set aside the impugned order dated 2nd December, 1999 passed by the respondent No. 4. ( 7 ) BEFORE parting, we wish to observe that the subject matter of the present appeal relates to a sensitive issue of an industrial unrest resulting in the declaration of the lock-out by the appellant. The interests of the appellant and the workers are involved. We are told that a very large number of workers are suffering because of the declaration of the lock-out and the closure of the factory. The interests of the appellant and the workers are involved. We are told that a very large number of workers are suffering because of the declaration of the lock-out and the closure of the factory. We wish to offer no comments upon the merits of such submission but do say and observe that it shall be open to the parties, particularly the workers, to take immediate recourse under the provisions of law, particularly the Industrial Disputes Act for redressal of their grievances and if the parties, or either of them, take recourse to such a remedy, we direct the concerned appropriate forum before which such a recourse is taken, to take cognizance of the same immediately, without any delay and to proceed in the matter with utmost despatch and expediency. The appeal is allowed. There will be no order as to costs. Let xerox certified copy of this Order be made available to the learned Advocates appearing for the parties, if it is applied for. R. K. Mazumdar, J.-I agree. Appeal allowed