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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 2 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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3 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 4 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- 5 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- 6 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               8               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 9 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 12 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.