The principle of nemo debet esse judex in causa propria sua is excluded by the scheme of Chapter XII-A of the Bombay Industrial Relations Act, 1946, which provides for a tripartite Wage Board with equal representation from employers, employees, and independent members.

Headnote:
BOMBAY INDUSTRIAL RELATIONS ACT, 1946 - SECTION 86A, 86B, 86C, 86CC, 86E, 86G, 86J - WAGE BOARD - BIAS - NATURAL JUSTICE - PRINCIPLE OF NEMO JUDEX IN RE SUA - APPLICABILITY - CONDITIONS PRECEDENT TO REFERENCE - OFFER TO REFER DISPUTE TO ARBITRATION - ORAL OFFER - SUFFICIENCY.
Fact of the Case:

Petitioner, a bank, challenged the proceedings before the Wage Board established under section 86A of the Bombay Industrial Relations Act, 1946 (Act), on two grounds: (1) the presence of the respondent, who was also the president of the union that submitted the demands to the Wage Board, violated the principle of nemo debet esse judex in causa propria sua; and (2) the union did not offer in writing to submit the dispute to arbitration as required by section 42 of the Act, making the reference void ab initio.
Finding of the Court:

1. The principle of nemo debet esse judex in causa propria sua (no man shall be a judge in his own cause) applies not only to Judges and Magistrates but also to all Tribunals and bodies which are given jurisdiction to determine judicially the rights of parties. 2. The scheme of Chapter XII-A of the Act, which introduced Wage Boards for resolving disputes relating to wages, rationalisation, workload, etc., clearly excludes the application of the principle of nemo judex in re sua. 3. The Wage Board is a tripartite body consisting of equal representation from employers, employees, and independent members, with the Chairman appointed by the State Government. 4. The object of the Wage Board is to provide a platform for narrowing down differences between parties and preventing legal squabbling, leading to harmonious decisions based on compromise and industrial peace. 5. The participation of both employers and employees in the decision-making process is inevitable and is intended to bring about just and fair settlements with the assistance of independent members. 6. The legislature's intention to exclude the principle of nemo judex in re sua is evident from the scheme of the Act, which contemplates the participation of both parties in the decision-making process. 7. Exclusion of a member of the Wage Board on grounds of bias would make the scheme unworkable, as the Wage Board is constituted of representatives from both sides and is supposed to adjudicate disputes with the assistance of independent members. 8. The requirement of an offer to refer the dispute to arbitration under section 42 of the Act is not a condition precedent to the maintainability of the reference, especially when the bank is not willing to accept arbitration.
Issues: 1. Whether the presence of the respondent, who was also the president of the union that submitted the demands to the Wage Board, violated the principle of nemo debet esse judex in causa propria sua. 2. Whether the union's failure to offer in writing to submit the dispute to arbitration as required by section 42 of the Act rendered the reference void ab initio.
Ratio Decidendi: 1. The principle of nemo debet esse judex in causa propria sua is excluded by the scheme of Chapter XII-A of the Act, which provides for a tripartite Wage Board with equal representation from employers, employees, and independent members. 2. The object of the Wage Board is to promote industrial peace and harmony through compromise and consensus, rather than imposing decisions on parties by a single statutory authority. 3. The participation of both employers and employees in the decision-making process is essential to achieve just and fair settlements. 4. Exclusion of a member of the Wage Board on grounds of bias would make the scheme unworkable, as the Wage Board is constituted of representatives from both sides and is supposed to adjudicate disputes with the assistance of independent members. 5. The requirement of an offer to refer the dispute to arbitration under section 42 of the Act is not a condition precedent to the maintainability of the reference, especially when the bank is not willing to accept arbitration.
Final Decision: The petition challenging the proceedings before the Wage Board was dismissed. The interim stay granted by the Court was continued for a period of six weeks.

JUDGMENT - SHAH A.P., J.:---This petition under Article 226 raises some fundamental questions in regard to the conduct and procedure of the Wage Board established by the State Government under section 86A of the Bombay Industrial Relations Act, 1946 (Act for short).

2. The circumstances can be briefly stated :

The petitioner is a bank and a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960. The respondent No. 1 is a trade union registered under the provisions of the Trade Unions Act, 1946, and is also an approved and representative union as contemplated under the provisions of the Act. The respondent No. 2 is the President of the union and is also a member of Parliament. He is also a member of the Wage Board constituted by the State Government under section 86A of the Act. The petitioner had signed a settlement dated 26th November, 1993 with the respondent No. 1 union and had thereby revised the service conditions of the employees of the bank. The respondent No. 2 was a signatory to the settlement as representative of the respondent No. 1 union.

The respondent No. 1 union gave a fresh charter of demands by notice in form L under section 42(2) of the Act, raising various demands on behalf of the workmen. The union sent a copy of the notice of change raising charter of demands to the Conciliator concerned and other authorities. As the demands raised by the union were not acceptable to the petitioner bank, the union sent the statement of the case in form N to the Conciliator under section 54 of the Act. By his order dated 22nd July, 1996, the Conciliator recorded that the dispute is incapable of being settled by conciliation. On 13th August, 1996, the respondent No. 1 union made a reference to the Wage Board under section 86CC of the Act and by the said reference preferred a charter of demands to the Wage Board for adjudication. After receiving the reference, the Wage Board issued notices calling upon the petitioner to file its written statement. The legality and validity of the proceedings before the Wage Board is sought to be questioned by the petitioner in the present writ petition under Article 226 of the Constitution.

3. The petitioner Bank has challenged the proceedings before the Wage Board mainly on two grounds. Firstly, the petitioner contends that the presence of the respondent No. 2 on the Wage Board is contrary to the settled principle of law that no man shall be a judge in his own cause (Nemo debet esse judex in causa propria sua). The petitioner points out that the respondent No. 2 also happens to be the president of the respondent No. 1 union who has submitted the demands to the Wage Board for adjudication. Therefore, according to the petitioner the respondent No. 2 is disqualified from acting as a member of the Wage Board and this disqualification introduces a fatal infirmity in the constitution of the Wage Board itself. Secondly, the petitioner contends that as provided under section 42, the respondent No. 1 should have offered in writing before the Conciliator to submit the dispute to arbitration under the Act. According to the petitioner, fulfilment of the said condition is a condition precedent to the maintainability of the reference. Since the union did not offer to submit the dispute to arbitration as required by section 42, the reference made on 13th August, 1996 is void ab initio and not maintainable.

4. In their affidavit in reply, the respondents Nos. 1 and 2 have strongly refuted the contentions of the petitioner that the proceedings before the Wage Board are illegal. They have denied the allegations of bias. In their affidavit they have given the legislative background of chapter XII-A whereby the State Government was empowered to establish Wage Boards for resolving the disputes relating to wages, rationalisation, workload etc. It is pointed out that on the Wage Board equal representation is given to both employer and employees and in addition there are independent m

Click Here to Read the rest of this document

1997 Supreme(Bom) 19

The principle of nemo debet esse judex in causa propria sua is excluded by the scheme of Chapter XII-A of the Bombay Industrial Relations Act, 1946, which provides for a tripartite Wage Board with equal representation from employers, employees, and independent members.

Login now and unlock premium legal research