Full Judgment Text
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PETITIONER:
H.H. THE MAHARANA SAHIB SHRI BHAGWATSINGH BAHADUR OF UDAIPUR
Vs.
RESPONDENT:
THE STATE OF RAJASTHAN AND OTHERS
DATE OF JUDGMENT:
03/10/1963
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
WANCHOO, K.N.
DAYAL, RAGHUBAR
CITATION:
1964 AIR 444 1964 SCR (5) 1
CITATOR INFO :
R 1965 SC1798 (6)
R 1971 SC 530 (53,261,321,394,407)
ACT:
Industrial Disputes Act, 1947 (14 of 1947), s.
10--Reference by State Government--Liability of Maharajah to
pay staff on retrenchment--Reference whether competent
without sanction of the Union Government under s. 87B of
the Code of Civil procedure.
Code of Civil Procedure, 1908 (Act 5 of 1908). ss. 86,
87B--Protection of ruler from being sued--Whether applies to
proceedings for adjudication of Industrial Dispute.
Constitution of India, Art. 362--Rights, privileges and
Immunities of Rulers, nature of.
HEADNOTE:
A dispute arose between the appellant and his employees
in the "Motor Garage department" in respect of the claim
made by the employees for retrenchment and other
compensation and leave facilities. The Government of the
State of Rajasthan, ’on December 18, 1957, referred under s.
10 of the Industrial Disputes Act, 1947, the above-mentioned
dispute to the Industrial Tribunal, Rajasthan.
Two preliminary objections were raised before the
Industrial Tribunal by the appellant against the
maintainability of the reference:
(1) That without the sanction of the Union Government
under s. 87B of the Code of Civil Procedure, the reference
to the Industrial Tribunal was incompetent.
(2) That on the date when the reference was made no
Industrial Tribunal was constituted under s. 7A of the
Industrial Disputes Act, 1947 as amended by Act 36 of 1956,
and on reconstitution of the Tribunal, the reference became
incompetent.
The Tribunal rejected both the objections. The High
Court also dismissed the writ petition filed by the
appellant challenging the validity of the order of the
Tribunal. Hence this appeal.
Held, (i) Section 86 read with s. 87 of the Code of
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Civil Procedure in terms protects a Ruler from being "sued"
and not against the institution of any other proceeding
which is not in the nature of a suit. A proceeding which
does not commence with a plaint or petition in the nature of
a plaint, or where the claim is not in respect of a dispute
ordinarily triable in a civil court, would prima facie not
be regarded as falling within s. 86 Code of Civil Procedure.
Section 86 of the Code excludes the jurisdiction of the
civil courts and must be strictly construed. It does not
debar the commencement of proceedings for adjudication of an
1/SCI New Delhi/64--1
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industrial dispute for two reasons:neither party to the
proceeding is saed by the initiation of the proceeding and
the Tribunal is not a court.
(ii) Article 362 of the Constitution declares that in
the exercise of legislative and executive power by the Union
and the State due regard shall be had to the guarantee or
assurance given under any covenant or agreement with respect
to the personal rights, privileges and dignities of the
Ruler of an Indian State. These rights, privileges and
dignities which are, for historical reasons, recommended to
be respected, avail the Rulers of Indian States in their
status as Indian citizens and not in recognition of any
sovereign authority continuing to remain vested in them.
In the present case, the appellant has also, since the
Constitution, been a citizen of India, and his recognition
as Ruler under Art. 366(22) of the Constitution has not
altered that status, but as a citizen he is assured a
privileged position.
(iii) By sub-s. (2) of the Rajasthan Industrial
Trjbunal (Constitution and Proceedings) Validating Act,
1959, the Tribunal originally constituted under s. 7 of the
Industrial Disputes Act, 1947, before the Act was amended by
Act 36 of 1956, is to be deemed to have been duly
constituted under s. 7A, and the reference made on December
18, 1957 is to be deemed to have been made as if the
Tribunal were constituted under s. 7A of the amended Act.
The Validating Act is, because of Item 22 List III of the
Seventh Schedule to the Constitution, within the competence
of the State Legislature. As the Act was reserved for the
consideration of the President and has received his assent,
by virtue of Art. 254(2) it must prevail in the State of
Rajasthan.
Mundra Metal Works Private Ltd. v. State of Rajasthan,
W.P.No. 107/58, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 528 of
1963.
Appeal from the ’judgment and order dated March 28,
1962 of the Rajasthan High Court in D.B. Civil Writ Petition
No. 164 of 1961.
G.S. Pathak, K. Jinder, B. Dutta, d.B. Dadachanji, O.C.
Mathur and Ravinder Narain, for the appellant.
G.S. Kasliwal, Advocate-General for the State of
Rajasthan, S.K. Kapur and B.R.G.K. Achar, for the
respondents.
October 3, 1963. The Judgment of the Court vas
delivered by
SHAH J.--By order of the President of India, H.H. the
Maharana Sahib Shri Bhagwat Singh Bahadur hereinafter called
’the appellant’--was recognised
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as the Ruler of Udaipur with effect from July 4, 1955 in
succession to his father the late Maharana Bhupal Singh.
A, dispute arose between the appellant and his employees
in the "Motor Garage Department" about the conditions of
employment and representations were made by the latter to
the Government of Rajasthan through the Motor Workers
Mazdoor Union, Udaipur. The Government of the State of
Rajasthan, on December 18, 1957 referred under s. 10 of the
Industrial Disputes Act (14 of 1947), the following dispute
to the Industrial Tribunal, Rajasthan:
"Whether the Maharana Sahib Bahadur of Udaipur
is liable to pay to the staff working with him
in the Palace Power House and Motor Garage,
consequent to their retrenchment, the arrears
of claims or the due salary, leave wages,
overtime wages and weekly holidays as per
schedule appended here to and if so, to what
extent. If not. to what relief the staff is
entitled to under the provisions of the
Industrial Disputes Act, as the question of
payment of the claims has arisen with the
termination of their services due to
retrenchment effected by the employers."
Two preliminary objections were raised before the
Industrial Tribunal by the appellant against the
maintainability of the reference:
(1) That the reference to the Industrial
Tribunal for adjudication of the dispute was
not maintainable without the previous sanction
of the Central Government to the making of the
reference.
(2) That on the date when the reference was
made no Industrial Tribunal was constituted
under s. 7A of the Industrial Disputes Act,
1947, as amended by Act 36 of 1956, and on
reconstitution of the Tribunal, the reference
became incompetent.
The Tribunal rejected both the objections and a writ
petition filed by the appellant challenging the
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validity of the order of the Tribunal was dismissed by the
High Court of Rajasthan. The appellant has appealed to this
Court, with certificate granted by the High Court of
Rajasthan.
The appellant contends in the first instance that
without the sanction of the Union Government under s. 87B of
the Code of Civil Procedure, the reference to the Industrial
Tribunal was incompetent. But the dispute between the
parties relates to the claim made by the employees for
retrenchment and other compensation and leave facilities:
the dispute is raised before the Industrial Tribunal in a
reference under the Industrial Disputes Act, and not before
a civil court in a suit. The appellant is therefore not
"sued" in a court. Section 86 Code of Civil Procedure on
which reliance is placed by the first sub-section provides
that:
"No Ruler of a foreign State may be sued
in any Court otherwise competent to try the
suit except with the consent of the Central
Government certified 111 writing by a
Secretary to that Government :"
and by s. 87B the provisions of s. 86 apply in relation to
the Ruler of any former Indian State as they apply in
relation to the Ruler of a foreign State.
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The appellant is recognised under Art. 366(22) of the
Constitution as a Ruler of an Indian State, but s. 86 in
terms protects a Ruler from being "sued" and not against the
institution of any other proceeding which is not in the
nature of a suit. A proceeding which does not commence with
a plaint or petition in the nature of a plaint or where the
claim is not in respect of a dispute ordinarily triable in a
civil court, would prima facie not be regarded as falling
within s. 86 Code of Civil Procedure. The proceeding for
adjudication under the Industrial Disputes Act is rounded in
a reference made by the local Government under s. 10 and the
allied sections under the Industrial Disputes Act and is not
commenced by a plaint or petition. An Industrial Tribunal
is again not a court within the meaning of s. 86: it is a
Tribunal consti-
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tuted for adjudicating industrial disputes. Section 86 of
the Code excludes the jurisdiction of the civil courts and
must be strictly construed.. It does not debar the
commencement of proceedings for adjudication of an
industrial dispute for two reasons: neither party to the
proceeding is sued by the initiation of the proceeding, and
the Tribunal is not a court.
It was urged however that by Art. 362 of the
Constitution the personal rights, privileges and
dignities of the Ruler of an Indian State guaranteed or
assured under any agreement or covenant made prior to
the Constitution are preserved, and a fetter is placed
upon the exercise of power, legislative and executive, of
the Union and the States, against infringement of the
guarantee or assurance given under the covenant or
agreements entered into by a Ruler of an Indian State.
Consequently, it is submitted, as a Ruler of an Indian State
the appellant is entitled to the same privileges which a
sovereign enjoy,, under rules of International Law against
foreign jurisdiction, and the same immunity from being
proceeded against either in the ordinary or extraordinary
civil or criminal tribunals, and from payment of all taxes,
and being subjected to police or other administrative
regulations.
The position of the former Rulers of Indian States has,
since the year 1947, been fundamentally altered. Prior to
1947 the Indian princes were, notwithstanding the varying
degree of suzerainty exercised over them by the British
Crown, recognised as having a. degree of sovereignty and
were in an international sense regarded qua British India as
foreign sovereigns, and entitled to certain rights,
privileges and immumties. On the enactment of the Indian
Independence Act, the suzerainty which the British Crown had
over the Indian States lapsed and with it all the treaties
and agreements in force at the date of the passing of the
Act between His Majesty and the Rulers of the Indian States,
all functions exercisable by His Majesty at that date with
respect to Indian States, all obligations of His Majesty
exist-
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ing at that date towards Indian States or the Rulers thereof
and all powers, rights, authority or jurisdiction
exercisable by His Majesty at that date in or in relation to
Indian States by treaty, grant, usage, sufferance or
otherwise also came to an end. Like other States the State
of Udaipur executed an agreement of accession and thereby in
matters of defence, external affairs and communications
concerning the State, the Government of India assumed sole
responsibility. This accession was followed by a process of
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integration of the Indian States in Rajasthan which
culminated in the formation of the United State of
Rajasthan. The Rulers of the Indian States in the Rajasthan
area including the Ruler of Udaipur formed the United State
of Rajasthan, under a covenant the provisions whereof were
guaranteed by the Government of India. This covenant was
modified by an agreement which became effective from May 15,
1949. On the enactment of the Constitution on January 26,
1950 the Union of Rajasthan became one of the Part ’B
States, and by the Constitution (Seventh Amendment) Act,
1956, the Part ’B’ State of Rajasthan was recognised as one
of the States in India.
As a result of the constitutional developments leading
to the promulgation of the Constitution the father of the
appellant who was at one time recognised as a sovereign of
an independent State acquired the status of a citizen of
India. The appellant has also, since the Constitution, been
a citizen of India, and his recognition as Ruler under Art.
366(22) of the Constitution has not altered his status, but
as a citizen he is undoubtedly assured a privileged
position.
The covenant of the United State of Rajasthan to which
the appellant’s father as the Ruler of Udaipur was a party
consists of 20 articles. It would be fruitless for the
purpose of this appeal to catalogue all the articles dealing
with the rights, privileges and dignities of the Ruler of
Udaipur. A few only need be set out. By Art. XI as Ruler
of a covenanting State he was entitled to receive annually
from the revenues of the United State of Rajasthan for his
7
privy purse the amounts specified against his State in
Sch. 1 thereof. By Art. XII he remained entitled to the
full ownership, use and enjoyment of all private properties
(as distinct from State properties), belong ing to him on
his making over the administration of that State to the Raj
Pramukh. By Art. XIII the Ruler of each covenanting State,
as also the members of his family, were entitled to all the
personal privileges, dignities and titles enjoyed by them,
whether within or outside the territories of the State,
immediately before August 15, 1947, and by Art. XIV the
succession, according to law and customs, to the gaddi of
each covenanting State, and the personal rights, privileges,
dignities and titles of the Ruler were guaranteed. By Art.
XV guarantee was given against any action or proceeding in
any court whether in a personal capacity or otherwise, in
respect of anything done or omitted to be done by him or
under his authority during the period of his administration
of that covenanting State. The covenant is in general
terms, and does not purport to make a comprehensive list of
the personal rights, privileges and dignities except those
which have been specifically referred to. The agreement
which came into force on May 15, 1949 makes no departure
from the articles of the covenant.
The covenant which was entered into by the Rulers of the
Indian States in Rajasthan and the agreement of May 15,
1949, had the concurrence of the Government of India and the
provisions thereof were guaranteed by the Government of
India. In order to give constitutional recognition to the
guarantees and assurances under the covenants and agreements
Arts. 362, 363, 131 proviso and 291 were incorporated in the
Constitution. Article 362 with which we are directly
concerned provides:
"In the exercise of the power of
Parliament or of the Legislature of a State to
make laws or in the exercise of the executive
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power of the Union or of a State, due regard
shall be had to the guarantee or assurance
given under any such covenant or agreement as
is referred to in article
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291 with respect to the personal rights,
privileges and dignities of the Ruler of an
Indian State."
The Article declares that in the exercise of legislative and
executive power by the Union and the State due regard shall
be had to the guarantee or assurance given under any
covenant or agreement with respect to the personal rights,
privileges and dignities of the Ruler of an Indian State.
It must be emphasized, that these rights, privileges and
dignities which are, for historical reasons, recommended to
be respected, avail the Rulers in their status as Indian
citizens and not in recognition of any sovereign authority
continuing to remain vested in them. It is in that view
unnecessary to enter upon a discussion as to. what
immunities and privileges, a foreign sovereign would be
entitled to in the Republic of India. The question on which
attention must be concentrated is: does the reference of the
industrial dispute by the Government of the State of
Rajasthan which attracts the application of the Industrial
Disputes Act, trench upon the guarantee or assurance under
the covenant executed by the appellant’s father, with
respect to the personal rights privileges and dignities of
the Ruler of the State of Udaipur, and if it does so trench,
are the courts competent to grant relief ?
The Industrial Disputes Act, 1947, as originally enacted
applied to British India. But by the amendment made by the
Industrial Disputes (Appellate Tribunal) Act (48 of 1950),
s. 34 and the Schedule thereto, the Act was extended to the
whole of India except the State of Jammu and Kashmir, and
since then by the enactment of the Industrial Disputes
(Amendment and Miscellaneous Provisions) Act, 36 of 1956,
the Act extends to the whole of India. The Industrial
Disputes Act, 1947, therefore, applied at the material time
to the territory of Rajasthan. The appellant is a citizen
of India, the Act extends to the territory of Rajasthan and
prima facie he is governed by the provisions of the Act.
The plea raised by the appellant is that by virtue of
Art. 362 of the Constitution reference of an
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industrial dispute under the machinery provided under the
Act for settlement of industrial disputes infringes the
guarantee or assurance in respect of his personal rights,-
privileges and dignities assured to him by the covenant
which formed the Union of Rajasthan. But the plea of
immunity from the jurisdiction of the Industrial Tribunal,
in the matter of adjudication of an industrial dispute,
because it was a personal right or privilege, was never
raised in the High Court, and no evidence has been led in
that behalf. As observed in the White Paper on Indian
States, para 240 at p. 125, the rights enjoyed by the Rulers
varied from State to State and were exercisable both within
and without the States. They covered a variety of matters
ranging from the use of red plates on cars to immunity from
civil and criminal jurisdiction, and exemption from customs
duties etc. In truth no reliance at all was placed on Art.
362 of the Constitution in the High Court. In the absence
of evidence directed to the question whether the appellant
as "Ruler of the Indian State of Udaipur" was entitled by
virtue of the covenant or agreement relied upon by him to
the privilege of not being proceeded against in the
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Industrial Tribunal, we would not be justified in
entertaining his plea. It may also be mentioned that if
exemption from the jurisdiction of the Industrial Tribunal
be claimed relying on the guarantee or assurance under the
covenant being disputed, the questions whether the courts
have jurisdiction to deal with the dispute if the covenant
or the agreement was one of the nature referred tO in Art.
363, or the dispute relates to any right accruing under or
liability or obligation arising out of any provisions of the
Constitution relating to such treaty, agreement etc., may
fail to be determined. This Court in Sudhansu Shekhar
Singh Deo v. State of Orissa(1) observed at p. 786:
"If, despite the recommendation that due
regard shall be had to the
guarantee or assurance given under the
covenant or agreement, the Parliament or the
Legislature of a State makes laws inconsis
(1) [1961] 1 S.C.R.779,786.
10
tent with the personal rights, privileges and
dignities of the Ruler of an Indian State, the
exercise of the legislative authority cannot,
relying upon the agreement or covenant, be
questioned in any court, and that is so
expressly provided by Art. 363 of the
Constitution."
But whether the bar to the jurisdiction of a court arising
out of Art. 363 can be effectively pleaded has, it must be
observed, not been investigated before the High Court. It
was also not raised before us: it has fallen to be mentioned
by us because it arises out of the plea raised for the first
time before this Court in which reliance is placed on Art.
362 by the appellant. We therefore decline to express any
opinion on the questions whether by Art. 362 the appellant
is privileged against a reference under the Industrial
Disputes Act and also whether the courts have jurisdiction
to adjudicate upon the plea set up by the appellant.
The second contention was, in our judgment, rightly
negatived by the High Court. The Industrial Disputes Act
was applied to the territory of Rajasthan by the Industrial
Disputes (Appellate Tribunal) Act (48 of 1950), and an
Industrial Tribunal was thereafter constituted by
notification dated June 2, 1953, under s. 7 of that Act.
The Industrial Disputes Act was, however, amended by the
Industrial Disputes (Amendment and Miscellaneous Provisions)
Act (36 of 1956), and s. 7 as originally enacted was deleted
and in lieu thereof ss. 7, 7A. 7B and 7C were enacted. The
power to appoint an Industrial Tribunal was, under the
amended act, conferred upon the appropriate Government by s.
7A. But it appears that no fresh notification appointing
the Tribunal was issued under s. 7A, and the Tribunal
originally constituted under s. 7 ’functioned. To that
Tribunal reference of the present dispute was made by order
dated December 18, 1957. The High Court of Rajasthan in
Writ Petition No. 107 of 1958--Mundra Metal Works Private
Ltd. v. The State of Rajasthan and two others--held that
the reference made to the Tribunal which was constituted
under s. 7 of the Industrial
11
Disputes Act before it was amended by Act 36 of 1956 was
incompetent. The State Government then reconstituted the
Tribunal under s. 7A of the Act by notification dated April
16, 1959, but no fresh 3 reference of the dispute in the
present case was made by the State Government to the
reconstituted Tribunal. Relying upon this development the
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appellant urged that the Tribunal reconstituted by
notification dated April 16, 1959 had no jurisdiction to
entertain the reference originally made, and in the absence
of a fresh reference to the reconstituted Tribunal the
proceeding was incompetent.. He also urged that the
constitution and the appointment of the Tribunal made after
March 30, 1959 were invalid.
It is unnecessary however to consider the merits of
these contentions because the Legislature has remedied the
defects, if any, in the constitution of the Tribunal, by
enacting the Rajasthan Industrial Tribunal (Constitution and
Proceedings) Validating Act, 1959, which was reserved for
the consideration of the President of India and has received
his assent. By s. 2(1) of’ that Act, notwithstanding any
judgment, decision or order of any court and notwithstanding
any defect or want of form or jurisdiction, the Industrial
Tribunal for Rajasthan, constituted under s. 7 of the
Industrial Disputes Act, 1947, by Government notification
dated the 2nd June, 1953, as amended by order dated the 9th
March, 1956, shall, as respects the period commencing on the
10th day of March 1957 and ending with the 15th day of
April, 1959, be deemed to have been duly constituted under
s. 7A of the said Act. By sub-s. (2) it is provided that
notwithstanding any judgment, decision or order of any court
all references made to and all proceedings taken and orders
passed by the Industrial Tribunal constituted in sub-s. (1)
between the period 10th March., 1957 and 15th April, 1959,
shall be deemed respectively to have been made, taken and
passed as if the said Tribunal were constituted under s. 7A
of the Act. It is clear from the validating provisions that
the Tribunal originally constituted under s. 7 of the
Industrial Disputes Act, 1947, before it was amended by Act
36 Of 1956 is to be deemed to
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have been duly constituted under s.7A, and the reference
made on December 18, 1957 is to be deemed to have been made
as if the Tribunal were constituted under s. 7A of the
amended Act. The Validating Act is, because of Item 22,
List III of the Seventh Schedule to the Constitution, within
the competence of the State Legislature, and it was reserved
for the consideration of the President and has received his
assent. It must by virtue of Art. 254(2) prevail in the
State of Rajasthan.
The contentions raised in this appeal must therefore
fail. The appeal is dismissed with costs.
Appeal dismissed.