JUDGMENT
Wanchoo, C.J.
1. These are two connected applications under Art, 226 of the Constitution of India. Application No. 25 is by Maharaja Shri Umaid Mills Ltd., Pali, and application No. 30 is by the Mevvar Textile Mills Ltd., Bhilwara. As the points raised in the two applications are exactly the same, we propose to decide them by one judgment.
2. The case of the applicants is briefly this. The Government of Rajasthan, in exercise of the powers conferred on it by Section 7, Industrial Disputes Act, 1947, constituted an Industrial Tribunal of one member on 2-6-1953, and appointed Shri S.S. Mehta on it for adjudication of certain industrial disputes referred to the Tribunal. The notification in paragraph 2 fixed the date from which the Tribunal would start to function, and also fixed the term of the appointment of Shri Mehta. The appointment of Shri Mehta was notified to be for the financial year 1953-54.
In pursuance of this notification, Shri Mehta started work as Industrial Tribunal for deciding the industrial disputes relating to the two applicants, and their workers. The disputes were not decided by 31-3-1954. The applicants’ case further is that no notification was issued before 31-3-1954 extending the life of the Tribunal consisting of Shri Mehta, nor was any notification issued constituting, and appointing Shri Mehta afresh as a tribunal after that date- Consequntly the applicants objected to Shri Mehta’s proceeding with the adjudication of the industrial dispute any further in April, 1954. This objection was overruled by Shri Mehta in both the cases. Consequently the present applications have been filed.
3. The main contention of the applicants is that the notification of 2-6-1953, fixed the term for the appointment of Shri Mehta as the Industrial Tribunal, and that as that term expired on 31-3-1954, and there was no extension of Shri Mehta’s appointment, before that date, the Tribunal automatically came to an end on 31-3-1954, and thereafter a fresh tribunal had to be constituted. It is said that the action of the State Government in deleting paragraph 2 from the notification of 2-6-1953, by a notification dated 26-5-1954, published in the Rajasthan Raj Patra of 5-6-1954, could not revive the tribunal retrospectively from 31-3-1954, or even prospectively from 5-6-1954, and therefore all proceedings taken by Shri Mehta after 31-3-1954, were without jurisdiction, and this Court should declare them to be so, and should prohibit Shri Mehta from acting as an Industrial Tribunal any further.
4. The applications have been opposed by the State as well as by the Workers’ Unions who have been made parties to them. A preliminary objection has been taken to the maintainability of these applications on the ground that there was adequate remedy available otherwise, and therefore this Court should not use its extraordinary powers under Article 226 of the Constitution in this case. On the merits, it is contended that the second paragraph of the notification of 2-6-1954, on which the applicants mainly rely, was merely for indicating financial sanction for the appointment of Shri Mehta, and that it did not fix any term for the Industrial tribunal or even for the appointment of Shri Mehta, and therefore Shri Mehta was entitled to continue to hear the industrial disputes referred to him even after 31-3-1954.
It was also contended that an order had been passed on 23-3-1954, extending the term of appointment of Shri Mehta though the order was not actually published. Consequently, Shri Mehta was entitled to carry on the work after 31-3-1954, by virtue of the extension of his term on 23-3-1954, and non-publication of the extension in the Gazette was a mere irregularity. Lastly, it was urged that the State Government regularised the whole position by deleting paragraph 2 from the notification of 2-6-1953, by their subsequent notification of 26-5-1954, published on 5-6-1954, and therefore Shri Mehta was entitled to continue, and all proceedings before him after 31-3-1954, were with jurisdiction.
5. We shall first deal with the preliminary objection, namely that this Court should not interfere in its extraordinary jurisdiction in favour of the applicants because they have an adequate alternative remedy available. The Industrial Tribunal is a quasi-judicial tribunal and if it is working without jurisdiction, a writ of prohibition strictly so called can issue to such a tribunal. It is well-settled that the existence of an alternative remedy is no bar to the’ issue of a writ of prohibition. Reference may be made to Halsbury’s Laws of England, 2nd Edition, Volume IX, paragraph 1397, where the following passage occurs:
“The court in deciding whether or not to grant a
writ of prohibition will not be fettered by the
fact that an alternative remedy exists to correct
the absence or excess of jurisdiction, or an appeal
lies against such absence or excess.”
This Court has exercised the power of issuing writs of prohibition even where an alternative remedy was available when it appeared that there was want of jurisdiction. Reference in this connection may be made to — ‘Mewar Textile Mills Ltd. v. Industrial Tribunal’, AIR 1951 Raj 161 (A); — ‘Rangraj v. Gram Panchayat, Khinwcl’, AIR 1952 Raj 144 (B); — ‘Gangadhar v. State of Rajas-than’, AIR 1953 Raj 71 (C).
It is a matter for decision in each case whether this Court should exercise its power of issuing a writ of prohibition, where an alternative remedy exists. Generally speaking, where the statute itself provides an appeal or a revision from the tribunal which is acting in excess of or in the absence of jurisdiction, this Court will not interfere under its extraordinary powers under Article 226. But where there is no provision in the statute by way of appeal or revision and the alternative remedy is of a different kind, this Court would interfere if the want of jurisdiction is established, provided the remedy is not equally efficacious, convenient and beneficial.
6. Let us see therefore whether this is a case in which we should interfere. The contention on behalf of the opposite parties is that the order of the Industrial Tribunal by which it held that it had jurisdiction to hear these disputes was open to appeal under Section 7, Industrial Disputes (Appellate Tribunal) Act (No. 47) of 1950, and therefore this Court should not intervene under its extraordinary powers under Article 226. We are told that so far as Maharaja Shri Umaid Mills Ltd., are concerned, they have already filed an appeal before the Appellate Tribunal. The Mewar Textile Mills Ltd., have not done so; but that is said to be their own fault for they should have filed an appeal under Section 7.
We have, therefore, to see whether an appeal under Section 7 lies to the Appellate Tribunal from an order of this nature. That section provides, among other things, for an appeal to the Appellate Tribunal from any award or decision of an Industrial Tribunal if the appeal involves any substantial question of law. It is urged that this is a decision of the Industrial Tribunal involving a substantial question of law and therefore an appeal lies to the Appellate Tribunal. The argument seems to be that every such decision of an Industrial Tribunal is open to appeal to the Appellate Tribunal.
This Court had occasion to consider this argument in — ‘the Mewar Textile Mills Ltd. (A)’, to which one of us was a party. It was pointed out there that the word ‘decision’ in Section 7 means a final decision, and does not include an interlocutory I order passed during the hearing of an industrial dispute. We need not repeat all the reasons that were given in that case for this view. One of the reasons was that no decision of any appellate tribunal could be cited where an appeal was entertained from an interlocutory order. Even now, learned counsel for the opposite parties arc unable to cite a single decision of any appellate tribunal entertaining an appeal from an interlocutory order under Section 7, though three years have gone by since the earlier decision of this Court. On the other hand, there have been other decisions of the Appellate Tribunal in which it has held the same view as we took in that case, namely that an interlocutory decision of an Industrial Tribunal is not open to an appeal under Section 7. It seems to us that the decision in the present case cannot but be in the nature of an interlocutory order for the Tribunal has held that it has jurisdiction and is going on with the adjudication of the industrial dispute. In this view of the matter, we are of opinion that no appeal would lie under Section 7 to the Appellate Tribunal, in spite of the fact that one of the applicants has actually filed an appeal. We therefore hold that there is no force in the preliminary objection as there is no alternative remedy open to the applicants and we must look into the merits of the case.
7. The first question, which arises on the merits, is the meaning to be attached to the notification of 2-6-1953. Before we consider the actual words of that notification, we may refer to the provisions of Section 7, Industrial Disputes Act, 1947, which provides for the constitution of Industrial Tribunals. Subsection (1) of Section 7 provides for the constitution of one or more industrial tribunals by the appropriate Government for the adjudication of industrial disputes. Sub-section (2) then provides for the appointment of member of the tribunal which may consist of one member or more, and where it consists of more than one member a chairman has to be appointed. It is obvious from the perusal of these two sub-sections that the law contemplates two steps, namely (1) the constitution of the tribunal and (2) the appointment of its personnel though the two things may be done at the same time by the same notification.
7a. The notification of 2-6-1953, as it finally stood after the substitution made on 8-6-1953, consisted of three paragraphs as follows:
“In exercise of the powers conferred by Section 7, Industrial Disputes Act, 1947 (Act No. 14 of 1947), the Government of Rajasthan is pleased to constitute, for the adjudication of Industrial Disputes in Rajasthan, an Industrial Tribunal consisting of one member only and to appoint Shri Shardoolsingh Mehta, R. J. S. Legal Remembrancer and Ex-officio Secretary to Government as such member.
2. This order comes into force with effect from 3-6-1953. The appointment is at present sanctioned for the financial year 1953-54.
3. With effect from 3-6-1953, the post of Legal Remembrancer and Ex-officio Secretary to Government is abolished and its functions merged with those of the Law Secretary.”
The first paragraph says that the Government is constituting an Industrial Tribunal for adjudication of industrial disputes in Rajasthan. This is in compliance with Section 7(1), Industrial Disputes Act. The paragraph then goes on to say that the tribunal shall consist of one member, and Shri Mehta is appointed such member. This is obviously in compliance with sub-s. (2) of Section 7. Then follows the second paragraph which says that the order would come into force with effect from 3-6-1953. This obviously refers to the first paragraph constituting the Industrial Tribunal, and appointing Shri Mehta as member of it. Thus the Industrial Tribunal is constituted for Rajasthan from 3-6-1953. Then come the words which have caused all the trouble, namely “the appointment is at present sanctioned for the financial year 1953-54.”
8. The third paragraph is immaterial for our purposes, and we shall not refer to it at all. The contention of the applicants is that the second paragraph of the notification gives the date from which the Industrial Tribunal is constituted, namely, 3-6-1953, and also the date on which it shall come to an end, namely, 31–3-1954, and as there was no extension of the term of the Industrial Tribunal before the expiry of the period fixed in the notification, the tribunal came to an end, and the appointment of Shri Mehta also expired. Therefore Shri Mehta has no jurisdiction to take any proceedings in connection with the industrial disputes referred to him after 31-3-1954.
The reply of the opposite parties to this is that the second paragraph was merely for purposes of financial sanction, and it was published in the notification by mistake, and that the intention of the Government was to constitute an Industrial Tribunal without any time-limit, and to appoint Shri Mehta to it also without any time-limit. An affidavit has been filed by the Chief Secretary to the Government of Rajasthan in support of it, in which it is said that that was the intention of the Govt. We have no doubt that that might have been the intention of the Government; but what we have to see is whether that intention was carried out in the notification which was published under the signature of the Chief Secretary himself in view of the words used in the notification.
The first paragraph constitutes the tribunal and appoints Shri Mehta as the sole member of the tribunal. If the notification had stopped there, there would have been no time-limit and the tribunal would have come into existence from the date of the notification, namely the 2nd of June. But the second paragraph made a difference to the inference which would have been drawn, if only the first paragraph had appeared in the notification. By the second paragraph the date from which the tribunal was constituted was notified as 3-6-1953, and not the 2nd June which would be the date if this paragraph had not been there. The start of the tribunal was therefore different, in view of paragraph 2, from what it would have been if the first paragraph stood by itself. Then follow the words which we have already quoted, namely that the appointment was sanctioned for the present for the financial year 1953-54.
It may be mentioned that this sentence in the second paragraph merely refers to the appointment, and does not refer to the constitution of the tribunal. So according to the 2nd paragraph, the constitution of the tribunal was from the 3rd of June, but the appointment of the sole member of the tribunal was limited in duration. It is, however, remarkable that the period of the tribunal itself was not limited in duration inasmuch as the notification did not say that the tribunal would submit its award by such and such date. If the notification had said that, then the period of the tribunal would also have been limited.
As we read the notification, therefore, we are of the opinion that it constituted an industrial tribunal from 3-6-1953. There was no period limiting the life of the tribunal, but there was a period limiting the duration for which the sole member could act as the tribunal, and that limit was 31st of March, 1954. Thus the tribunal was, if we may say so, a permanent tribunal, but the member appointed to it was so appointed only up to 31-3-1954. As Section 7, Industrial Disputes Act contemplates constitution of the tribunal under Sub-section (1), and appointment of members under Sub-section (2), and these are, in our opinion, two steps, though they may be notified in one notification, we cannot agree with the contention of the applicants that the tribunal also was constituted for a limited duration. The fact that it was a one-member tribunal would not necessarily make the duration of the tribunal the same as the duration of the sole member appointed to the tribunal.
This would be clear from a reference to Section 8(2), Industrial Disputes Act. That sub-section shows that if any vacancy occurs in the office of any member of a tribunal, the appropriate Government may appoint another independent person to fill the vacancy, and the proceedings may be continued before the tribunal so reconstituted from the stage
at which the vacancy is filled. This sub-section, in our opinion, applies both to one-member tribunals and multiple-member tribunals. As a matter of fact, Section 8 originally had three sub-sections and they have now been replaced on amendment by two sub-sections, but in our view these provide for exactly the same things as before. Sub-section (2) as it originally stood provided that where a tribunal consisted of one person only and his services ceased to be available, the appropriate Government shall appoint another independent person in his place, and the proceedings shall be continued before the person so appointed. This, in our opinion, is also provided by the present Sub-section (2) in the case of one-member tribunals with this difference that now it is left to the appropriate Government to fill the vacancy or not, as the word used in connection with a member is “may” and not “shall”. So it is clear that a tribunal may continue even though its sole member may cease to act for one reason or another, and when the vacancy occurs another person may be appointed in his place, and the tribunal will then carry on from the stage at which the case was when the vacancy was filled. We have, therefore, no hesitation in coming to the conclusion that the notification of 2-6-1954, constituting an Industrial Tribunal, did not put any limit on the duration of the tribunal, though it did limit the duration of the member Shri Mehta to the period ending 31-3-1954.
9. We cannot accept the contention on behalf of the opposite parties that the duration of the member Shri Mehta was also unlimited. As we have already said, it might have been the intention of the Government to provide that the duration of Shri Mehta as member would also be unlimited. Fortunately or unfortunately, the words used in the second paragraph can only admit of one meaning, namely that the duration of Shri Mehta’s appointment to the Industrial Tribunal, which had been constituted was up to 31-3-1954.
If the last sentence in paragraph (2) merely referred to the financial position, it should not have used the word ‘appointment’. The use of the word ‘appointment’ in the last sentence shows that the appointment of Shri Mehta was only up to 31-3-1934. If instead of the word ‘appointment’, the word ‘money’ had been used, and the sentence had read ‘the money is at present sanctioned for the financial year 1953-54’, the appointment of Shri Mehta would also be of unlimited duration; or if the words had been ‘the financial sanction is given up to the financial year 1953-54’, the term of Shri Mehta’s appointment could have been unlimited.
But when the word ‘appointment’ was used, and it was definitely stated that the appointment of Shri Mehta was only sanctioned for the present till the end of the financial year, it meant that Shri Mehta’s appointment was to end on 31-3-1954, though the use of the words ‘at present’ might lead to an inference that the intention was to extend the term if necessary, and if the work was not finished We are, therefore, of opinion that the notification of 2-6-1953, constituted an industrial tribunal for Rajasthan without any term for the tribunal; but appointed Shri Mehta as the sole member of the tribunal up to the end of March, 1954.
10. Shri Mehta’s term would therefore come to an end on 31-3-1954, unless it was renewed earlier. It is contended on behalf of the Unions that Shri Mehta’s term was extended by the order of 23-3-1954. It may be mentioned, however, that the Chief Secretary’s affidavit does not say that Shri Mehta’s term was extended on the 23rd of March, 1954. It appears that a letter was written by the Secretary to the Government of Rajasthan in the Labour Department to the Accountant General Rajasthan, on 23-3-1954. In this the Secretary conveyed the sanction of His Highness the Rajpramukh to the extension of the period of the Industrial Tribunal consisting of the Judge and the staff for six months in the first instance. It was also said that the salary of the Judge and the staff etc. would be met from a certain provision in the budget of the Labour Department.
The contention on behalf of the applicants is , that this was a mere financial sanction, and that there was really no order on or about this date extending the term of Shri Mehta’s appointment after 31-3-1954. As the Chief Secretary had not said in his affidavit that the term of Shri Mehta had been extended before 31–3-1954, and as the learned Government Advocate had the relevant secretariat files with him, we looked into the files and found that there was in fact no order extending the term of Shri Mehta’s appointment for a further period after the end of March. That explains why the Chief Secretary did not say in his affidavit that the term of Shri Mehta was extended. We must, therefore, hold that the letter of the Labour Secretary to the Accountant General, Rajasthan, was merely for purposes of conveying financial sanction, and that in fact there was no extension of the term of Shri Mehta,
The letter does say that the sanction of His Highness the Rajpramukh to the extension of the period of the Industrial Tribunal for six months has been given; but it was not necessary to extend the term of the tribunal itself, for under the notification of 2-6-1953, there was no period fixed for the termination of the tribunal. We, therefore, come to the conclusion that though the tribunal continued after 31-3-1954, Shri Mehta’s appointment as the sole member of the tribunal came to an end on 31-3-1954, and was not extended before that date. The result therefore follows that Shri Mehta could not act as the member of the tribunal from 1-4-1954, and all proceedings taken by him from 1-4-1954, would be without jurisdiction, subject to the consideration of the effect of the order of Government, dated 26-S-1954, published on 5-6-1954.
11. Let us now turn to this order published on the 5th of June. This order deletes the following words in the second paragraph of the notification of 2-6-1953, namely “the appointment is at present sanctioned for the financial year 1953-54”. It has been urged that this deletion is of no effect, because the deletion is of the order of 2-6-1954, while that order itself had been rescinded by another order bearing the same number, published on 8-6-1954. We are of opinion that there is no force in
this technical objection. The order published on the 8th of June said that it was to be substituted for the order bearing the same number and date. This, in our opinion, meant that the order, which was published on the 8th of June, came to be substituted in the Gazette of the 2nd of June, and must be deemed to be the order of the 2nd of June. Therefore, the deletion took place in the substituted order of the 2nd of June, and we shall have to see what is the effect of this deletion.
12. The contention on behalf of the opposite parties is that by this deletion, Shri Mehta became entitled to act as member of the tribunal continuously from 1-4-1954, immediately on the expiry of the term fixed in the notification of 2-6-1953. Reliance in this connection is placed on Section 21, General Clauses Act, which provides that a power to issue notifications includes a power to add to, amend, vary, or rescind any notificttion. It is urged that this was an amendment of the notification of 2-6-1953, and would take effect from the date of the original notification. We are of opinion that this is not correct, and we may in this connection refer to — ‘Strawboard Manufacturing Co., Ltd. v. Gutta Mill Workers’ Union’, AIR 1953 SC 95 (D). In that case, the U. P. Government had appointed a tribunal and fixed a date by which the tribunal was to submit the award. That date expired and the tribunal submitted the award a few days afterwards. Thereafter, as objection was taken to the validity of the giving of the award after the date fixed in the original notification, the U. P. Government amended the original notification and extended the date fixed for giving the award. The Supreme Court held that as there was no distinct provision under Section 21 that the power of amendment and modification conferred on the Government might be so exercised as to have retrospective operation, the order of amendment could not have retrospective effect. It follows from this that an order of amendment under Section 21 cannot operate retrospectively, though it may operate prospectively as will appear from the following observations in this case at page 98:
“If, therefore, the amending order operates prospectively, i.e. only as from the date of the order, it cannot validate the award which had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was ‘functus officio’ and had no jurisdiction to act at all.”
It follows therefore that the amending order, which was published in this case on 5-6-1954, cannot validate proceedings between 1-4-1954 and 4-6-1954. It can, at the best operate prospectively, i.e. from 5-6-1954.
13. It is further contended on behalf o£ the applicants that the order published on the 5th of June cannot be of any effect even prospectively because it was amending an order which had already expired. We are of opinion that there is no force in this argument, for the order of 2-6-1953, did not put any limit to the duration of the existence of the Industrial Tribunal. It only put a limit to the appointment of the sole member, namely Shri Mehta. But after Shri Mehta’s term came to an end, the tribunal continued and it was open to the Government to appoint another independent per-son to the tribunal under Section 8 of the Industrial Disputes Act. What the Government did was to delete a portion of the order of 2-6-1953, under its powers under Section 21, General Clauses Act. This it could do for the order constituting the Tribunal had not expired, and only the appointment of Shri Mehta to the tribunal had expired. Therefore, as soon as the amending order was published on 5-6-1954, that part of the order of 2-6-1953, which fixed a term to Shri Mehta’s appointment, disappeared, and Shri Mehta was vested with jurisdiction to act as Industrial Tribunal again from 5-6-1954, by virtue of the order of 2-6-1953, as it read after the amendment. We are, therefore, of opi-nion that Shri Mehta could exercise jurisdiction as Industrial Tribunal again from 5-6-1954, over all the cases which had been referred to the Industrial Tribunal between 3-6-1953 and 31-3-1954.
Considering that it is possible under Section 8, Industrial Disputes Act, for a new sole member in cases of a vacancy to carry on from where the case was at the time of his appointment, it seems to us only reasonable to hold that, if the same member is appointed sometime later after his term had expired for any reason and a vacancy had occured, he can also carry on from the same stage at which the case was when the vacancy occurred. In this view of the matter, we are of opinion that by virtue of the notification published on 5-6-1954, Shri Mehta is again the Industrial Tribunal for Rajas-than, and can carry on the cases from the stage at which they were on 31-3-1954. As for the proceedings between 1-4-1954, and 4-6-1954, for which period Shri Mehta was ‘functus officio’, they must be held to be invalid.
14. We, therefore, partly allow the applications,
and hold that Shri Mehta was ‘functus officio* from|
1-4-1954 to 4-6-1954, and quash the proceedings
taken by him between these dates. Shri Mehta is
entitled to carry on the proceedings after 5-6-1954,
beginning from the stage at which they were on
31-3-1954. In view of the circumstances of the
case, we pass no order as to costs of these proceedings.
