CHITTARANJAN COTTON MILLS LTD. vs STAFF UNION

1. HAMOODUR RAHMAN, C.J.--This appeal, by special leave, arises out of a judgment of a Division Bench of the High Court of East Pakistan affirming an award given by the Second Labour Court, Dacca, on the 18th of April 1968, in an appeal under subsection (5) of section 13 of the East Pakistan Labour Disputes Act, 1965.

2. The labour dispute was raised by the respondent-Union over the dismissal of one, Sachindera Chandra Chakraborty, Warehouse-in-Charge, and the reversion of one, Pankaj Kumar Sarkar, from the post of Junior Office Assistant of the Warehouse to his original post of Bundler, in October 1967.

3. It appears that in September 1967, 3 bales of fresh cloth and 9 bales of defective cloth were found missing from the godown of the appellant. In respect of this an enquiry was held and charge- sheets were issued to some 8 employees, including the two persons named above. The Accountant of the appellant was appointed the Enquiry Officer and he reported on the 14th of October 1967, recommending that the maximum punishment should be given to Sachindara Chandra Chakraborty and a lesser punishment to Pankaj Kumar Sarkar. On perusal of the report the Administrative Officer of the appellant called upon the delinquent employees to give their explanations, if any, in respect of the findings of the Enquiry Officer. Their explanations were found unsatisfactory and the punishments above-mentioned were imposed upon them.

4. Both the employees concerned sought reconsideration of their respective cases and the withdrawal of the punishments imposed upon them. The requests for reconsideration were, however, rejected and the respondent-Union raised a dispute with regard to it. This was referred to conciliation under section 5 of the said Act. The conciliation having failed the dispute was taken under section 6 of that Act for adjudication before the Labour Court in December 1967.

5. The Labour Court on the 18th of April 1968, made its award setting aside the dismissal of Sachindara Chandra Chakraborty and the reversion of Pankaj Kumar on mainly the grounds that the delinquent employees had been prejudiced by the mis-joinder of charges regarding negligence of duty and dishonest removal in respect of the same items of cloth and that certain interpolations had been made in the record by the Enquiry Officer.

6. This Court consisted of a Chairman appointed by the Government and two members, one representing the employees and the other representing the employer but, it is alleged, that it was not constituted in accordance with the provisions of the Act of 1965, as the members of the Court excluding the Chairman had not been selected in accordance with the provisions thereof. There was no dispute that the Chairman had been appointed under the Act of 1965.

7. The relevant provisions of the Industrial Disputes Ordinance (No, LVI of 1959), which was the previous law, relating to the constitution of the Labour Court, as given in section 7 thereof, were as follows :- "7.--(1) The Provincial Government may, for adjudicating and determining any industrial disputes or any matter appearing to be connected with or relevant to such disputes, by notification in the official Gazette, constitute one or more Industrial Courts for such area or areas as may be specified therein.

8. (2)An Industrial Court shall consist of a Chairman and two members to advise the Chairman, one of the members to represent the employers and the other to represent the workmen, all being appointed by the Provincial Government.

9. (3)The Chairman shall be a person who is or has been a Judge of a High Court, District Judge or an Additional District Judge and shall be appointed upon such terms and conditions as the Provincial Government may determine.

10. (4)The members shall be appointed for a period of three years in consultation with the employers and workmen in such manner as may be prescribed and shall, on the expiry of the said period, be eligible for reappointment for a further period not exceeding three years."

11. Under the East Pakistan Labour Disputes Act of 1965, which repealed the Ordinance of 1959, the "Court" is defined in section 2(d) as meaning "a Labour Court constituted under this Act unless otherwise specified".

12. Section 9 lays down the constitution of the Labour Court as follows : - "9. Constitution of Labour Court.--(1) The Provincial Government may, for adjudicating and determining any labour disputes or any matter appearing to be connected with or relevant to such disputes, by notification in the official Gazette, constitute one or more Labour Courts for such area or areas as may be specified therein.

13. (2)A Labour Court shall consist of a Chairman and two members to advise the Chairman, one to represent the employers and the other to represent the workers, appointed in the manner hereinafter provided.

(3) The Chairman shall be a person who is or is qualified to be a Judge of a High Court, or is a District Judge or Additional District Judge and shall be appointed by the Provincial Government upon such terms and conditions as the Provincial Government may determine.

(4) The Provincial Government shall constitute, in the prescribed manner, by notification in the official Gazette, two panels, one of which shall consist of representatives of employers and the other of representatives of the workers, each panel consisting of not more than five persons : Provided that the Provincial Government shall reconstitute such panels after every two years, but the members of the panels, notwithstanding the expiry of the said period of two years, shall continue on the panels till the new panels are constituted and notified in the official Gazette : Provided further that members of the panels shall be eligible for reappointment for a period not exceeding two years at a time.

(5) The Chairman shall, for adjudication, inquiry, deter-mination or disposal of a case relating to a specific Labour dispute, select one person from each of the two panels, and persons so selected, together with the Chairman, shall be deemed to have constituted a Court in respect of that specific labour dispute : Provided that the Chairman may select any member from either of the panels as a member of the Court in respect of more than one case pending before the Court."

14. It will be noticed from the above that under the Ordinance of 1959 all members of the Court, including the Chairman, were to be appointed by the Provincial Government; the Chairman at the discretion of the Government from amongst persons who are or have been Judges of the High Court or District Judges and the members in consultation with employers and workmen in such manner as may be prescribed. Under the Act of 1965 the Chairman is still to be appointed by the Provincial Government at its discretion but the category of persons from amongst whom he may be selected has been enlarged to include any person who is qualified to be a Judge of a High Court. Thus he may well be a person who neither is nor has been a Judge of a High Court or a District Judge, but so far as the other members of the Court are concerned, they are to be chosen now by the Chairman from out of two panels, of 5 persons each, constituted by the Provincial Government in the prescribed manner and published in the official Gazette in such a way that one of the members chosen shall be from out of the panel consisting of representatives of employers and the other from the panel consisting of representatives of workers. The Chairman may, at his discretion, select different members for each specific labour dispute or for more than one dispute pending before the Court.

15. In this case no objection to the constitution of the Court was taken before the Labour Court but in appeal before the High Court this point was raised. The High Court, however, over-ruled this point, firstly, on the ground that it had not been raised before the Labour Court and, secondly, because in its view section 44 of the Act of 1965 validated and continued in force whatever was done under the provisions of the Ordinance.

16. Repelling this objection the High Court found against the Union on merits but affirmed the award of the Labour Court.

17. Leave was granted in this case to consider whether the Labour Court was properly constituted and if not whether the entire proceedings before it were coram non judice and whether in the facts and circumstances of this case the relief by way of re-instatement granted by the High Court was justifiable in the context of the master and servant relationship prevailing between an employer and an employee.

18. Before this Court only one ground has been pressed, namely, that the entire proceedings before the Labour Court were without jurisdiction and, therefore, null and void. It is strenuously urged that the failure to raise this question before the Labour Court was not fatal, as a question relating purely to the jurisdiction of the Court could be raised even at the appellate stage, particularly, when its effect would be to render the entire proceedings a nullity in the eye of the law. It is pointed out that the High Court was also wrong in taking the view that any detailed examination of facts was necessary, for, if the panels had, in fact, been constituted in accordance with the provisions of subsection (4) of section 9 of the East Pakistan Labour Disputes Act, 1965, it would have been the easiest thing to produce the relevant notification from the official Gazette; for, the law required the panel to be notified in the official Gazette. The High Court would have been bound to take judicial notice of the notification, if any, existed. It is, in this connection, contended with some force that the High Court's observation to the effect that "there is nothing before us which would enable us to find as to whether or not the Provincial Government issued any notification constituting a panel of officers as required under the Act", is wholly misconceived, for, if the question only was as to whether there was a notification or not, then there was no difficulty at all in the way of the High Court itself discovering this or asking the Union respondent to produce the Notification.

19. As to whether a notification existed or not could not be such a complicated question of fact as would have entitled the High Court to refuse to entertain this point of jurisdiction, even though it was not raised before the Labour Court.

20. With regard to the High Court's view that section 44 of the Act of 1965 validated everything done under the Industrial Disputes Ordinance, notwithstanding its repeal, it is contended that the High Court has failed to notice that this validation was only "so far as it is not inconsistent with the provisions" of the Act of 1965. The learned counsel argues that the provisions of section 7 of the Ordinance of 1959 are clearly inconsistent with the provisions of section 9 of the Act of 1965, for, they envisage an entirely different kind of a Tribunal. Under the Ordinance of 1959 the Tribunal was to consist of a Chairman and members appointed by the Government for a term of three years.

21. The Chairman had to be a person who was or had been a Judge of a High Court or a District Judge and the members were to be appointed for the prescribed term as regular members of the Court.

22. Under the Act of 1965, on the other hand, the Chairman need not necessarily be a sitting or a retired Judge of the High Court or a District Judge. He had only to be a person qualified to be appointed as a High Court Judge and could even be a person who was then working as an Additional District Judge. The members had to be chosen ad hoc for a specific case or a group of pending cases at the discretion of the Chairman and not at the discretion of the Government, but the choice had to be made from out of two panels prepared by the Government in the prescribed manner and notified in the official Gazette. The entire constitution and complexion of the Court had, therefore, been radically changed by the Act of 1965, for the selection of the members was no longer left with the Government.

23. Section 44 of the Act of 1965 reads as follows :- "44. Repeal and saving.--(1) The Industrial Disputes Ordinance, 1959 is hereby repealed.

24. (2)Notwithstanding the repeal, anything done, action taken, rules framed, or notification or order issued under the said Ordinance, shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken, made or issued under the corresponding provision of this Act.

25. (3)Any reference to the Industrial Disputes Ordinance, 1959 in any other law for the time being in force shall be construed to have a reference to this Act."

26. It will be apparent from this that all that has been saved is that which is consistent with the provisions of the Act of 1965. C In the present case, if it be correct that the Chairman of the Labour Court concerned had in fact been appointed under the provisions of the Act of 1965, then section 44 was clearly in applicable in the facts of this case, for, there was no question here of continuing the Court appointed under the Ordinance of 1959. Here the Court had been partially reconstituted under the provisions of the Act of 1965 and the question that fell to be decided was as to whether in the absence of reconstitution of the remainder of the Court, the Court could at all be said to have been validly constituted under the Act of 1965.

27. Learned counsel appearing on behalf of the respondents has urged that in fact there was no radical difference in the constitution of the Labour Court under the Ordinance of 1959 and the Act of 1965. They still consisted of a Chairman and two members, the Chairman appointed by the Government one member representing the employers and another representing the employees. In effect, therefore, the Court bore the same complexion and, therefore, the defect, if any, in the constitution of the Court could not invalidate the proceedings in view of the provisions of subsection (6) of section 9 of the Act of 1965, which provides that the Court may function notwithstanding anything contained in the said Act in the absence of any such member, and no act, proceeding, decision or award of the Court shall be invalidated merely by reason of absence of any such member. At worst, it is contended, it may be taken that no legally appointed members were present. Even so, under subsection (6) of section 9 of the Act of 1965 the proceedings could not be vitiated.

28. I am unable to accept this argument, for, subsection (6) of section 9 is, in my view, attracted only after the Court has been properly constituted and one of its members is incapable of sitting or refuses to sit, and not to a case where the Court is ab initio not properly constituted. The "member" referred to in this subsection is a member appointed in accordance with the provisions of the Act, 1965 and not some other statute.

29. Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances "it could never be too late to admit and give effect to the plea that the order was a nullity", as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone v.

30. Chief Kwame Tawia .

31. The provisions of the two statutes are, in my opinion, not only dissimilar but also inconsistent and incompatible. It is true that mere dissimilarity may not be enough to establish inconsistency.

32. Inconsistency involves incompatibility in substance and in spirit, and not merely in i form. As defined in Black's Law Dictionary, "inconsistent" means, inter alia, "mutually repugnant ...... . . so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other".

33. In an English case reported as In re : An Arbitration between John Knight and Tabernacle Permanent Building Society , Fry L. J. observed while interpreting the words "inconsistent with the Act", that inconsistency would result if the obligations imposed by the subsequent Act "would be so at variance with the machinery and procedure indicated by the previous Act that if that obligation were added, the machinery of the previous Act would not work".

34. Applying these tests to the two statutes in the present case I find it difficult to agree that this is a case of a mere variation or dissimilarity. It is a clear case of incompatibility. As I have indicated earlier the constitution of the Labour Court has been so radically altered by the Act of 1965 that it cannot possibly be said that the Court constituted under the Ordinance G of 1959 would substantially be of a similar character and complexion. This is a case, in my view, of a clear inconsistency.

35. Be that as it may, as I have earlier pointed out, here the real question was as to whether a Court, which had been partially reconstituted under the Act of 1955, could at all be able to come within the definition of the Court under this Act, even though the majority of its members had not been appointed in accordance with the provisions of the statute. This is a clear case of an adjudication being made by a body which was not a Labour Court either under the Act or under the Ordinance of 1959 and, therefore, the proceedings before that Court were corarn non judice. The result is that those proceedings must be declared to be void. This appeal must, accordingly, be allowed, the purported award set aside and the dispute remanded to be adjudicated upon by a competent Court appointed under the Act of 1965.

36. Since this is a dispute between an employer and an employees Union, there will be no order as to costs. 9 D L R 686 (P C) (1891) 60 LJQB 633 1 2 1 2