Hotel Kanishka vs Delhi Administrations And Ors.
1995 Latest Caselaw 360 Del

JUDGMENT

Anil Dev Singh, J.

(1) The petitioner questions the order of the Industrial Tribunal No. 1 .dated July 31, 1989 whereby it was held .that .the enquiry conducted by the enquiry officer was bad in law and the same was accordingly declared invalid.

(2) The petition arises in the Following circumstances.

(3) Sixteen workmen, who have been arrayed as the third respondent were employed with the petitioner. Hotel Kanishka, a unit of the India Tourism Development Corporation (for short "Corporation"). The second respondent Hotel Kanishka Employees Union, of which some of the aforesaid workmen were office bearers, raised a charter of demands for better wages, bonus and provident fund etc. On September 12 1994 the union gave a notice of a strike, in the wake of the agitation of the employees, .the petitioner filed a civil suit and obtained a restraint order which inter alia, interdicted the workmen :

"(A)from squatting, staging Dharness, holding demonstrations in and around the premises of the Plaintiff hotel:

(B)from collecting in numbers, shouting slogans, holding meetings and demonstrations and the like in and around the plaintiff's premises;

(C)to ( h) * * * * *

(I)from remaining in the hotel premises unauthorisedly and/or-near the plaintiff's places of work, including the head office.,.............."

(4) During the agitation, the aforesaid workmen are said to have indulged in activities which called for disciplinary proceedings. On September 26, 1984 they were charge sheeted and were asked to appear before the enquiry officer, Shri S. P. S. Ahluwalia, who had been retained by the petitioner to hold disciplinary enquiries. Some of the workmen objected to his holding the enquiry on the ground that he was not competent to hold the same but he continued with it out, of the sixteen workmen eleven appeared before him. As a result of non appearance of the five workmen, enquiry was conducted ex-parte against them. The enquiry was held partly in the premises of Hotel Kanishka and partly at the corporate office of the petitioner at Jeevan Vihar Building, New Delhi. On conclusion of the enquiry, Mr. Ahluwalia gave his report to the management. As a result of his findings, the petitioner terminated the services of four workmen namely S/Sh. P. P. Dubey, Vinod Kumar, Pardeep Sharma and Sohrab Engineer, while remaining 12 workmen were given a lesser punishment of withholding of two increments.

(5) Dissatisfied with the decision of the management, the Union raised an Industrial dispute which became subject matter of conciliation proceedings under section 12 of the Industrial Disputes Act, 1947 (for short the Act), Since no settlement of dispute was arrived at, the conciliation officer on October 21, 1985 sent a failure report to the appropriate Government under sub-section 4 of the Section 12 of the Act. Acting on the report of the conciliation officer, the Secretary Labour, Delhi Administration in exercise of the powers conferred by Section 10(1)(d) of the Act referred the following disputes for adjudication to the Industrial Tribunal No. Ii, presided over by Shri S. P. Sabherwal, on October 21, 1985:

"1. Whether the pantry men are entitled to meal allowance of Rs. 60.00 p. m. as is being paid in other 1. T. D. C. Hotels and if so, what directions are necessary in this respect ?

2.Whether the date of increment should be the joining of service in a grade, if so, what directions are necessary in this respect ?

3.Whether the termination of services of S/Sh. P. P. Dubey, Vinod Kumar. Pardeep Sharma and Sohrab Engineer is unjustified and or illegal and if so. what relief are they entitled and which directions are necessary in this respect ?

4.Whether the punishment of stoppage of increments with cumulative effect inflicted on S/Sh. V. S. Pandey, V. C. Ajaiyan, A. K. Shukla, Vikram Bhannot, Kishan Behari, S. K.Dass, Tulsi Ram Verma, B. K. Tripathi, R.N.Prasad, Parveen Bajaj, A. S. Bhatnagar and Mangte Ram is illegal and/or unjustified, and if so, what directions are necessary in this respect ?

5.Whether the continued suspension of S/Sh. Arun Shukia and Suraj Pal is illegal and/or unjustified, and if so, what directions are necessary in this respect ?

(6) The workmen did not contest items land 4 of the reference with regard to the remaining matters, the workmen filed a statement of claim before the Tribunal on February 28,1986. In response the petitioner filed its written statement on July 9,1986. Thereupon, the workmen filed a rejoinder on April 2,1987. Issues were framed by the Tribunal on September 11, 1987. The parties were then asked to file affidavits by way of evidence. Availing of the opportunity, the petitioner filed affidavits of Shri S.K.Gambhir, Manager Personnel) and Shri S.P.S. Ahluwalia, enquiry officer. On the other hand the workmen filed an affidavit of Shri Pradeep Sharma.The afflatus were also allowed to be cross examined. While the petitioner closed its evidence on March 3,1989 on the question of competence of the enquiry officer to have held the enquiry, the workmen closed their evidence on May 1,1989. The Tribunal after hearing the parties and on consideration of the material on record came to the conclusion that Shri Ahluwalia was not an officer of the petitioner and being an outsider was not competent to hold the enquiry. In coming to this conclusion the Tribunal, inter alia, relied on standing order NS.16(iii) of the Standing Orders, 1984. The Tribunal was also of the opinion that the workmen were not given adequate opportunity of representation by the enquiry officer. Accordingly the Tribunal on July 31,1989 declared the enquiry as invalid and posted the matter for further proceedings on August 10,1989. It was at this stage that the petitioner filed the present writ petition challenging the order of the Industrial Tribunal.

(7) Shri Bhandari, learned coursed for the petitioner, submitted that the Industrial Tribunal erred in coming to the conclusion that Shri Ahluwalia was not competent to hold the enquiry against the workmen and the the same was bad in law. He also submitted that the workmen were given adequate opportunity to participate in the enquiry and they were neither handicapped in any manner nor were they under any kind of fear in taking part in the enquiry conducted by the enquiry officer.

(8) In order to appreciate the first submission of the learned counsel for the petitioner it will be convenient to reproduce para 16(iii) of the Standing Order: "16. Procedure For Dealing With Cases Of MISCONDUCT: (i) Xxx Xxx Xxx (ii) Xxx Xxx Xxx (iii) An employee against whom an enquiry has to be held shall be given a charge-sheet clearly setting forth the charges against him indicating therein the nature of offence as laid down in any of the sub-clause of clause 14 above and the full particulars thereof. The charge- sheet will invariably lend up by calling upon the employees to give his explanation in Writing by a stipulated date. If his reply is not considered satisfactory by the management or if no reply is received within stipulated time or any extension thereof, an enquiry shall be held by an officer/employee of the Hotel/Corporation not lower than the accused."

(9) Thus it is clear from the aforesaid Standing Order that the disciplinary enquiry is required to be conducted by an officer/employee of the corporation who is not lower than the workmen against whom the enquiry is instituted. Learned counsel for the petitioner submitted that the Standing Order does not bar the appointment of an outsider as an enquiry officer and all that the standing Order requires is that in case an employee of the Corporation is appointed as an enquiry officer, he shall not be lower than the delinquent workmen: He further referred to the office order appointing Shri Ahluwalia for conducting the enquiries in departmental cases. This order reads as under:- "SHRISPS Ahluwalia has been engaged on retainership basis w.e.f. 23-5-84 for conducting enquiries in the departmental cases. He will enjoy status equivalent to an officer in the scale of Rs. 1500-2000. sd/- (P. C. ARORA) Deputy General Manager (E)"

(10) Learned counsel for the petitioner canvassed that Shri Ahluwalia For all intents and purposes was an officer of the Corporation, who also enjoyed the status of an officer in the scale of Rs. 1500-2000, and by no stretch of imagination he could be held to be lower than the workmen either in status or in seniority as the workmen were in scales lower than Rs. 1500-2000.

(11) I have given my earnest consideration to the submission of the learned counsel for the petitioner but I have not been able to persuade- myself to accede to the same. The Standing Orders have been certified under the Industrial Employment (Standing Orders) Act, 1946 and have the force of law. This includes Standing Order No. 16 which lays down the method arid manner of dealing with the cases of misconduct against the employees. According to Standing Order No. 16 (iii) enquiry can be conducted only by an officer/employee of the Hotel/Corporation. A further condition is that the officer/ employee holding the enquiry should not be lower than the employee a.gainst whom the enquiry is to be conducted. It is not disputed by the harmed counsel for the petitioner that there is no other Standing Order which deals with the appointment of an enquiry officer. Therefore whenever an enquiry officer is to be appointed by the Corporation the power has to be beloved from Standing Order No. 16 (iii), which provides for appointment of an officer/employee of the petitioner not lower than the employee against whom enquiry is to be held.

(12) Now the question which arises for consideration is whether Shri Ahluwalia was an officer/employee of the Corporation or an outsider.

(13) Shri S. K. Gambhir, Manager (Personnel) of the petitioner staled before the enquiry officer that Shri Ahluwalia wa.s conducting departmental enquiries on retainer ship basis. Even Sbri Ahluwalia appeared before the Tribunal and stated in life cross examination that he was consultant to many organisations in industrial relations and labour laws. He also stated that he was appointed as a retainer in personal capacity and his consultancy has also been appointed for conducting enquiries by the Corporation. Taking note of the aforesaid statements, the Tribunal came to the conclusion that Shri Ahluwalia was not an officer of the Hotel/Corporation. This finding cannot be Faulted. It is apparent from the statement of the enquiry officer that he was consultant to many organisations besides being a consultant to the petitioner. Therefore undoubtedly Shri Ahluwalia was not an officer of the Corporation. A mere mention of non disbursable scale of pay in the office order appointing Shri Ahluwalia for conducting disciplinary enquiries on relationship basis does not alter the situation.

(14) Shri Sharma, learned counsel for the workmen relied upon a decision of the Mysore High Court in Devaraj Urs Vs. General Manager, Mysore State Road Transport Corporation, Bangalore and another Air 1969 Mysore 225 (1) in support of the proposition that appointment of an enquiry officer in violation of the Standing Order vitiates the enquiry. In that case the court was concerned with the Standing Order according to which the Deputy General Manager of the Road Transport Corporation Bangalore Division was authorised to hold an enquiry but it was held by an officer other than the Deputy General Manager, Bangalore Division. It was contended that the officer was equivalent in rank to a Deputy General Manager and therefore the enquiry conducted by him was in conformity with the Standing Order. Rejecting to be contention to the High Court held that even though the officer was equivalent in rank to a Deputy General Manager, he was not competent to conduct the enquiry as the Standing Order specifically authorised the Deputy General Manager, Bangalore Division to conduct the enquiry. In this regard the Court held as follows :

"4.Mr. Udaya Shankar appearing for the Corporation explained to us that the post of a Divisional Controller of the Corporation is equivalent to the post of a Deputy General Manager and that we should equip rate the enquiry made by the Divisional Controller with one made by the Deputy General Manager to whom the thirteenth Standing Order refers.

5.But, such equip ration is not possible for the reason that the thirteenth Standing Order constitutes the Deputy General Manager of the Bangalore Division as The authority which should hold the independent enquiry directed by it. If that enquiry could have been conducted by any Deputy General Manager of the Corporation, it might have been possible for Mr. Udaya Shankar to succeed in his contention that the enquiry conducted by the Divisional Controller, if, his post is equal to the post of a Deputy General Manager is sufficient enquiry for the purpose of the thirteenth Standing Order. But, it is admitted that the thirteenth Standing. Order as if now stands is the product of a truce between the Corporation and its employees, and if that Standing Order expressly constitutes the Deputy General Manager of the Bangalore Division as the authority by which the independent enquiry should be conducted, an enquiry by a Divisional Controller although his post is equivalent to that of a Deputy General Manager, can be no substitute for the enquiry which should be conducted only by the Deputy General Manager of the Bangalore Division."

(15) On the other hand, learned counsel for the petitioner cited numbers of judgments namely, Sridharan Motor Service, Attur, Vs. Industrial Tribunal, Madras and others 1959 (1) Labour Law Journal 380 (2), and Bhanuprasad Hariprasad Dave and an others Vs. State of Gujarat 1970 (1) Llj 417 (3). But in none of the these cases there was a Standing Order like the one in the instant case. Therefore, reliance by the learned counsel for the petitioner on these authorities is misplaced. The learned counsel for the petitioner also relied upon the decision of the Supreme Court in Central Bank of India Vs. C. Bernard . This was case a where according to a bipartite settlement between the workmen and the management, the Chief Executive officer was empowered to appoint an officer of the Bank to hold an enquiry and take disciplinary action against the erring employee. The Chief Executive Officer of the bank appointed one Shri U. B. Menon, special officer, as the enquiry officer to hold disciplinary enquiry against the deliquent employee. During the pendency of the enquiry Shri Menon retired from service but he continued to function as an enquiry officer and concluded the enquiry against the employee and. also imposed. punishment on him. The High Court of Karnataka .held ..that the enquiry, was incompetent and without jurisdiction. The Supreme Court in appeal was faced with the 152 question whether or not the departmental enquiry entrusted to and conducted by the bank official stood vitiated as even after his retirement he proceeded with it and imposed punishment on the employee. In this regard the Supreme Court while dealing with the argument of the counsel for the bank observed as follows : "9.Shri Shetty next submitted that if a third party nonofficial can validly be appointed on Enquiry Officer, though not Disciplinary Authority, his report up to the stage preceding the issuance of a second show cause notice could be saved because both sides to the proceedings had not raised any objection to the continuance of the enquiry by the said Enquiry Officer and therefore the High Court ought to have remitted the matter to the competent Disciplinary Authority to take a fresh decision based on the report of the Enquiry Officer. To put it differently, according to the learned counsel for the appellant, the High Court should have remanded the matter with a direction that the competent Disciplinary Authority will proceed to dispose of the departmental enquiry from the stage of the report submitted by the Enquiry Officer. We would have considered it necessary to examine it this submission had the deliquent not retired in the ' meantime on August 21, 1986 the High Court pronounced its judgment thereafter on January 18, 1988. No useful purpose therefore, can be served by adopting the procedure suggested by Shri Shetty as the respondent had admittedly retired from service in 1986 and if the .order imposing punishment is quashed, he would ordinarily have to be paid his wages etc., up to the date of his retirement. We, therefore, do not think that, in the facts and circumstances of this case, the course suggested by Shri Shetty can be usefully adopted. 10. Lastly, Shri Shetty submitted that in any event the respondent succeeded in getting the order of punishment quashed on a mere technicality and that too on the contention belatedly raised before the High Court for the first time and, therefore, the High Court was in error in directing payment of all consequential benefits. We think there is merit in this contention. If the objection was raised by the earliest possible opportunity before the enquiry Officer the appellant could have taken steps to remedy the situation by appointing a competent officer to inquire into the charges before the respondent's retirement from service. It is equally true that the penalty has not been .quashed on merits. On the contrary, if one were to go by the charge levelled against the respondent and the reply thereto one may carry the impression that the respondent bad made the claim on the basis of the fake receipt; whether the respondent himself was duped or not would be a different matter. The fact. however, remains that the impunged order of punishment has to be quashed not because the merits of the case so demand but because the technical plea of incompetence succeeds. In the circumstances, we think that the ends of justice would be met if inset of directing all consequential benefits the appellant is ordered to pay 50% of the consequential benefits to which the respondent would be' entitled on superannuation. For the above reasons, we are- of the opinion that the High Court was right in quashing the impugned order of punishment but we think having regard to the special facts and circumstances pointed out earlier, it should not have ordered payment 'of all consequential benefits' flowing from the declaration that the impugned order was bad in law............"

(Emphasis supplied).

(16) The present case stands on a different footing as here one is faced with a Standing Order which has a force of law. Even the Supreme Court in the aforementioned case upheld the technical plea of the incompetence of the enquiry officer to impose punishment on the deliquent employee once the former retired from the service of the Bank. The other striking feature of that case was that employee did not raise any objection during the enquiry about the competence of the enquiry officer to proceed with the matter. In the present case. however, objection was taken by some of the workmen to the appointment of Shri Ahluwalia as enquiry officer at the earliest possible occasion. Apart from the Standing Order no other provision has been cited from which the petitioner could derive authority to appoint an enquiry officer other than an officer, of the oppration. ........ Learned counsel for the petitioner submitted that it is always better to have.an outsider as an enquiry officer as he will not have the usual biases which an officer of the Corporation may have. Here the question is not as to who should be preferred as an enquiry office.' but whether the enquiry officer has been appointed as per the requirement of Standing Order No. 16(iii). Had there been no Standing Order, learned counsel for the petitioner could have advanced such an argument. Bvt in view of the Standing Order, it was not permissible to appoint an outsider as an enquiry officer. The justification advanced by the learned counsel for the petitioner is outside the parameters of the Standing Order. Having regard to the above discussion I find no force in the submission of the learned counsel for the petitioner which is hereby rejected.

(17) IT. was next contended by Shri Bhandari that as the appropriate Government on October 21, 1985 had referred the dispute to the Industrial Tribunal No. Ii but the adjudication was made and the order was passed by the Industrial Tribunal No. 1, which was not competent to decide the matter. In order to put the matter in the right perspective it is necessary to point out that after the matter was referred to the Industrial Tribunal No. Ii presided over by Sh. Sabharwal, he was declared as the Presiding Officer of Industrial Tribunal No.1. This order was passed on December 3, 1985. The matters which were pending before him as Presiding Officer of the Industrial .Tribunal No. Ii were also allocated to him as Presiding Officer of the Industrial Tribunal No. 1.

(18) Learned counsel for the petitioner submitted that the transfer of pending cases from the Industrial Tribunal No. Ii including the present case to the Industrial Tribunal No. I, presided over by Shri Sabharwal is of in accordance with law. In this regard he invited my. attention to the notification dated April 14, 1975 whereby the Central Government in exercise of the powers conferred by Section 39 of the Act delegated powers under Sections 3, 10 and 10A, sub section (5) of Section 12 and Sections 17, 33B and 36A thereof to the Secretary (Labour), Delhi Administration. He submitted that it is significant that no powers were delegated under Sections 7A and 8 of the Act. Laying emphasis on Section 8 the learned counsel for the petitioner submitted that since by virtue of order dated December 3. 1985 a vacancy has arisen in respect of the Labour Tribunal No. II- n should have been first filled up before the matter could have been transferred by the appropriate Government from the Industrial Tribunal No. Ii to the Industrial Tribunal No. 1. He further contended that as there was no Presiding Officer of the Industrial Tribunal No. Ii on December 3, 1985, there was no Tribunal in the eye of law and since there was no Tribunal in the eye of law no transfer could take place from it to Tribunal No. 1. I have considered the submission of the learned counsel for the petitioner but I find the same to be untenable in view of the various provisions of the Act.

(19) Sub section (i) of Section 7A deals with constitution of a Labour Tribunal, it empowers the appropriate Government to constitute one or more tribunals for the adjudication of the industrial disputes relating to any of the matters specified in the second and third Schedules of the Act or for performing such functions as may be assigned to it/them. This sub section makes it incumbent upon the appropriate Government to publish the notification constituting the Labour Tribunal in the official gazette. In other words a Labour Tribunal can be constituted only by a notification in the official gazette. According to sub section (2) of Section 7A, a Labour Tribunal is to consist of one person only to be appointed by the appropriate Government. Such a person, however, must fulfill the requisite qualifications as laid down in sub section (3) of Section 7A. It is significant that while sub section (1) of Section 7A deals with the constitution of the Labour Court, sub section (2) of Section 7A deals with appointment of a Presiding Officer of the Labour Tribunal. Issuance of the notification/s in the official gazette for constitution of the Labour Tribunal and appointment of a presiding officer thereof are referrable to two different sources of power, the former is found in sub section (1) and the latter in sub section (2) of Section 7A. The moment the notification under sub section (i) is issued in the official gazette the establishment of the Labour Tribunal is complete and permanent. The appointment of the presiding officer of the Labour Tribunal though essential is a separate matter. The appropriate Government can constitute a Labour Tribunal and make an appointment of the presiding officer thereof simultaneously by a composite notification or by different notifications. Similar provisions are found in Sections 7, and 7B for constitution of Labour Court and National Tribunal respectively. My attention has been drawn to Rule 5 of the Industrial Disputes (Central) Rules 1957 by the learned counsel for the petitioner. According to it, the appointment of the Board, Court, Labour Court, Tribunal or National Tribunal together with names of the presiding officer/s are required to be notified in the official gazette. This rule makes no difference in regard to the position adumbrated above as it cannot be read in derogation of the Statute and must be read in conformity therewith. So read it merely requires that the constitution of the bodies referred therein and the appointments of Presiding Officers thereof to be notified in the official gazette in the manner as provided in Sections 7, 7A and 7B of the Act. It needs to be noted that in the present case the challenge is not to the initial constitution of the Labour Tribunal. Therefore the question is not whether there should be one composite notification for the appointment of the Tribunal and its presiding officer or there could be separate notifications but the question is that when a vacancy occurs in the office of the Tribunal, whether the Tribunal cases to exist. Rule 5 of the Rules offers no solution to the problem nor it advances the argument of the learned counsel for the petitioner that when a vacancy occurs in the office of the Presiding Officer of the Tribunal, it (the Tribunal) ceases to exist. If the argument of the learned counsel for the petitioner is accepted it will cripple the smooth functioning of the courts, tribunals and other bodies constituted under the Act. In any case the submission the learned counsel for the petitioner is not correct as would be apparent from the provisions of Section 8 of the Act, which reads as follows : "8.Filling of vacancies :-If, for any reason, a vacancy (other than a temporary absence) occurs in the office of the Presiding Officer of a Labour Court, Tribunal or National Tribunal or in the office of the Chairman or any other member of a Board or Court, then, in the case of a National Tribunal. the Central Government and in any other case, the appropriate Government, shall appoint another person in accordance with the provisions of the Act to fill the vacancy, and the proceeding may be continued before the Labour Court, Tribunal, National Tribunal, Board or Court, as the case may be, from the stage at which the vacancy is filled."

(20) Thus it is manifest that this section deals with the filling up of a vacancy in the office of the presiding officer of a Labour Court or Tribunal etc. If for any reason, such a vacancy other than a temporary absence occurs, the same can be filled up by the Central Government in the case of a National Tribunal and in any other case by the appropriate Government and the proceedings may continue after filling vacancy from the stage at which the vacancy occured. Had the argument of the learned counsel for the petitioner any force, section 8 would not have permitted merely filling up of the vacancy in the post of a presiding Officer of a Tribunal without requiring issuance of a fresh notification re-constituting the Tribunal under Sub-section I of Section 7A and requiring the Tribunal to proceed de novo in the matter. In case the argument of the learned counsel for the petitioner is accepted the Tribunal would cease to exist on vacancy being caused in the office of the presiding officer thereof and the proceedings before it would also perish. In such a contingency there would be need to issue a fresh notification setting up the Tribunal and making an appointment of the presiding officer thereof followed by a fresh reference of the dispute to it. But this runs contrary to Section 7A and 8 of the Act. The very fact that Section 8 talks of filling up of the vacancy in the office of the presiding officer, when the same falls vacant, shows that Tribunal once constituted continues to exist and the proceedings emanating from the reference of the Industrial dispute to it under Section 10(1) remain 'pending till they are concluded notwithstanding the occurrence of a vacancy in the office of the Presiding Officer thereof. The argument of the learned counsel for the petitioner that in any event the appropriate Government was required to first fill up the vacancy in the post of the presiding Officer before transferring the instant case to Tribunal No. I is also not well founded. Since the Tribunal exists even when the office of the Pre siding Officer is vacant, there is no cogent or plausible reason why the matter pending before it cannot b3 transferred under Section 33B to another Tribunal which is functioning. Normally transfer of a matter from one Tribunal to another is not resorted to except for good reason as otherwise the principle of judicial independence is diluted. But in a case where the office of the Presiding Officer of a Tribunal is vacant in such a case transfer of a matter from that Tribunal to another will not conflict with the said principle. At this stage it will bs convenient to refer to Section 33B in order to further te:t the argument of the learned counsel for the petitioner. Section 33B reads :

"33-B.Power to transfer certain proceedings- (i) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court. Tribunal, or National Tribunal and trainer the same to another Labour Court, Tribunal or rational Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court. Tribunal or National Tribunal to which the proceedings is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred;

Provided that where a proceeding under Section 33 or Section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court. (2) Without prejudice to the provisions of sub-section (1), any Tribunal or National Tribunal, if so authorised by the appropriate Government, may transfer any proceeding under Section 33 or Section 33-A pending before it to any one of the Labour Court specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same".

(21) There is nothing in section 33B of the Act which suggests that when the office of the Presiding Officer of the Tribunal becomes vacant, the appropriate Government must fill up the vacancy before any matter can be transferred from it to another Tribunal. In order to determine whether the case was properly taken up by the Industrial Tribunal No. 1, it would be necessary to peruse the order of the Delhi Administration dated December 3, 1985 whereby the Tribunal presided over by Shri Sabharwal was declared as Industrial Tribunal No. 1. The order reads as under :- "Whereas, the Tribunal presided over by Shri S. P. Saberwal has been declared as Industrial Tribunal No. 1. Whereas, it has been made to appear that cases i. e. industrial disputes referred as Industrial Tribunal, Labour Court, interpretation of Standing Order L.C.A., O.Ps. complaints which are pending in his Tribunal as Industrial Tribunal No. 2, are being dealt with by him and the proceedings in those cases are in progress at various stages. Whereas the Industrial Tribunal No. Ii, presided over by Shri Sabharwal has been declared as Industrial Tribunal No. I, and, therefore, in the interest of work, the cases already dealt with by him, shall continue to be dealt with by him. Now, therefore, in exercise of the powers conferred by Section 33-B of the I.D. Act, (XIV) of 1947. read with Government of India, Ministry of Labour, Notification No. S-11011121 75-DK.(IA) dated 14-4-75 and for the aforesaid reasons, I, Mrs. P. M. Singh, Secretary (Labour), Delhi Administration, Delhi, hereby withdraw the cases/disputes pending in Industrial Tribunal No. Ii presided over by Shri S. P. Sabarwal and transfer the same to Industrial Tribunal No. I, presided over by him. ........."

(22) This shows that there was merely a figurative change in the number assigned to the Industrial Tribunal presided over by Shri Sabharwal. All the cases which were pending before him as Presiding Officer of the Industrial Tribunal No. Ii were to be taken up by him as Presiding Officer of the Industrial Tribunal No. 1. Therefore effectively the cases including the present case remained with Shri Sabharwal even as the Presiding Officer of the Industrial Tribunal No. 1. Learned counsel for the petitioner relied upon the decision of the Supreme Court in Management of M/s. M. S. Nally Bharat Engg. Co. Ltd. Vs. State of Bihar and others 1990 Ii Lu 211 (5) in support of his submission that the decision of the appropriate Government to transfer a pending case, from one Tribunal to another must be accompanied by reasons for such transfer. In this context it may be pointed out that the petitioner participated in the proceedings before the Tribunal No. I without demur. It is significant that the matter was referred to the Industrial Tribunal No. Ii on October 21, 1985 and about one and a half months later the Industrial Tribunal No. Ii was re-numbered as the Industrial Tribunal No. 1. Petitioner kept on appearing in the muter before the Industrial Tribunal No. I presided over by Shri Sabharwal and subsequently before his successor, Shri B. B. L. Hajelay without protest. While the statement of claim, was filed by the workmen on February 28, 1986, the written statement was filed by the petitioner on July 9, 1986. Issues were framed on September 11, 1987 and evidence was closed on March S, 1989 and May 1. 1989 by the petitioner and workmen respectively. There. after arguments were heard by the Tribunal and the proceedings culminated in the passing of the impugned order. All these events took place after the passing of the order dated December 3, 1985 by virtue of which the matter was taken up by the Industrial Tribunal No. 1 but at no stage the petitioner questioned the jurisdiction of the Tribunal No. 1. The plea raised by the petitioner seems to be an after thought.

(23) Learned counsel for the petitioner submitted that the plea. that the Tribunal lacked inherent jurisdiction goes to the root of the matter and no facts are necessary to be stated in support thereor. It was further urged that he should be allowed to raise the same as a pure question of law can be agitated even for the first time in the writ petition. In support of his argument he cited Haryana Cooperative Transport Ltd. Kaithal Vs. State of Punjab and others 1969 Lab Ic 301(6) Union of India Vs. Labour Court, Jullundur and another 1969 (35) Fjr 241(7) Shree Shew Sakti Oil Mills Ltd. Vs. Second Industrial Tribunal and others 1961-62 (21) Fjr 247(8) and The Management of Hamdard (Wakf) Laboratories, Delhi Vs. Raunaq Hussain and others 1971 Lab. 1. C. 405(9). There cannot be any quarrel with the proposition laid down in these authorities. It is well settled that if a Tribunal or a Court lacks inherent jurisdiction to adjudicate upon a matter no amount of consent or acquiescence can confer jurisdiction on it. From a reading of the order dated December 3, 1985 it is apparent that the allocation or the so called transfer of the matters including the case in question to Tribunal No. I, was made "in the interest of the work" as the cases were already being dealt with by Shri Sabharwal as presiding Officer of Tribunal No. Ii when that Tribunal was redesignated as Tribunal No. 1. Thus the requirement of giving reasons for the transfer of the matter stands satisfied.

(24) Having regard to the above discussion it is clear that the Industrial Tribunal No. I did not lack the jurisdiction to deal with the matter and it was possibly for this reason that the petitioner participated fully in the proceedings and did not raise any objection before it with regard to its competence to adjudicate upon the dispute.

(25) In so far as the finding of the Tribunal that the workmen did not participate in the enquiry as they were under a handicap because of the ad-interim restraint order passed by this Court in the civil suit is not correct. There is no dispute that a restraint order was passed on October 10, 1984. According to the order the workmen were restrained from squatting, staging dharnas, holding demonstrations in and around the petitioner's premises and from remaining in the hotel or the Head Office of the Corporation unauthorisedly. The enquiry undoubtedly was conducted sometimes at the hotel premises and sometimes at the head office. But a reading of the interim order shows that there was no restraint against a workman for his bona fide visit to the hotel or Head Office. The mere belief of the workmen that the restraint order may be operating against them for going to the Head Office or the hotel even to face enquiry without appreciating the correct effect of the restraint order cannot be a ground for not participating in the enquiry.

(26) Learned Counsel for the workmen submitted that the petitioner filed the writ petition prematurely as the Labour Tribunal had fixed the matter for further proceedings for July 31, 1989. In support of his submission he cited the case of D. P. Maheshwari Vs. Delhi Administration Air 1984 Sc 153(10) wherein the Supreme Court held as follows: ".........Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceeding before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Art. 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary question must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeying up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Art. 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues."

(27) It is not necessary to dilate on this submission of the workmen as even otherwise I am of the view that the Tribunal was right in coming to the conclusion that the enquiry officer was not competent to hold the enquiry and on this ground alone the writ petition must fail.

(28) The writ petition, therefore, has no merit and is dismissed but with no order as to costs.