The Bharat Bank Ltd., Delhi Vs. Employees of The Bharat Bank Ltd. [1950] INSC 20 (26 May 1950)
KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
CITATION: 1950 AIR 188 1950 SCR 459
CITATOR INFO :
F 1953 SC 325 (13) F 1954 SC 520 (4) R 1955 SC 170 (20) F 1956 SC 66 (16) R 1956 SC 153 (6) R 1956 SC 231 (22,23) D 1956 SC 319 (13) R 1959 SC1035 (14) R 1961 SC1669 (13) RF 1962 SC 486 (15) R 1962 SC1621 (60) F 1963 SC 630 (6) RF 1963 SC 677 (18,20) R 1963 SC 874 (8,9,17) R 1965 SC1595 (18,19,40,41,42) R 1967 SC1494 (13) RF 1972 SC1967 (5) RF 1977 SC2155 (23) R 1979 SC1652 (29) E 1980 SC 856 (21) C 1980 SC 962 (77) R 1982 SC 78 (8) RF 1992 SC2219 (53,135)
ACT:
Constitution of India, Art. 136--Supreme Court Appellate Jurisdiction--Award of Industrial Tribunal--Whether appealable Application for special leave--Maintainability -Nature of functions of Industrial Tribunal-Industrial Disputes Act, 1947, es. 8, Case heard by Bench of three members.
HEADNOTE:
Held per KANIA (C.J. FAZL ALl, and MAHAJAN JJ. (MUKHERJEA and PATANJALI SASTRI JJ. dissenting).--The functions and duties of the Industrial Tribunal constituted under Industrial Disputes Act, 1947, are very much like those of a body discharging judicial functions although it is not a Court, and under Art. 136 of the Constitution of India the Supreme Court jurisdiction to entertain an application for leave to appeal from decision of the Tribunal, even though it will be very to entertain such an application.
Per MUKERJEA J. (PATANJALI SASTRI J.
concurring).--An Industrial Tribunal functioning under the Industrial Disputes Act is not a judicial tribunal. The nature of the determinations made and the materials and considerations on which it has to decide a dispute are also such that the powers of an appellate court cannot be exercised fully and effectively in respect of them and such determinations are therefore outside the purview of Art. 136 of the Constitution. Even assuming that the Court had jurisdiction appeal, the present case was not a fit one for entertaining an appeal from the determination of the Tribunal.
[On the merits KANlA C..J., FAZL ALl, PATANJALI SASTRI and MUKHERJEA, JJ. were of opinion that there was no ground for admitting the appeal. MAHAJAN J. was of opinion that the award was bad and must be set aside.]
APPELLATE JURISDICTION: Civil Appeal No. XXXIV of 1950.
Appeal by special leave from an Award of the All-India Industrial Tribunal (Bank Disputes) Bombay, dated 1st January, 1950. The facts of the case are set out in the judgment.
Dr. Bakshi Tek Chand (Veda Vyas and S.K. Kapur, with him) for the appellant.
B. Sen for the respondents.
Alladi Krishnaswami Aiyar (Jindra Lal, with him) for the Union of India.
1950. May 26. The Court delivered judgment as follows :-KANIA C.J-I have read the judgments prepared by Messrs. Fazl Ali, Mahajan and Mukherjea JJ.
461 in this case. As the views in those judgments in respect of the nature of the duties and functions of the Industrial Tribunal do not show agreement I consider it necessary to add a few words of my own.
In my opinion, the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions, although it is not a Court. The rules framed by the Tribunal require evidence to be taken and witnesses to be examined, cross-examined and re-examined. The Act constituting the Tribunal imposes penalties for incorrect statements made before the Tribunal. While the powers of the Industrial Tribunal in some respects are different from those of an ordinary civil Court and it has jurisdiction and powers to give reliefs which a civil Court administering the law of the land (for instance, 'ordering the reinstatement of a workman) does not possess in the discharge of its duties it is essentially working as a judicial body. The fact that its determination has to be followed by an order of the Government which makes the award binding, or that in cases where Government is a party the legislature is permitted to revise the decision, or that the Government is empowered to fix the period. of the operation of the award do not, to my mind, alter the nature and character of the functions of the Tribunal. Having considered all the provisions of the Act it seems to me clear that the Tribunal is discharging functions very near those of a Court, although it is not a Court in the technical sense of the word.
The next question is whether under article 136 the Court has jurisdiction to entertain an application for leave to appeal against the decision of such a body. It is not disputed that the Court has power to issue writs of certiorari and prohibition in respect of the work of the Tribunal.
The only question is whether there is a right of appeal also. In my opinion the wording of article 136 is wide enough to give jurisdiction to the Court to entertain an application for leave to appeal, although it is obvious that having regard to the nature of the functions of the Tribunal, this Court will be very reluctant to entertain such an application.
462 As regards the merits, I do not think this is a case in which I would admit the appeal. The aggrieved parties may apply for redress by adopting other appropriate proceedings.
The appeal therefore should be dismissed with costs.
FAZL ALl J.--The important question to be decided in this case is whether the present appeal lies at all to this Court. The question is not free from difficulty, but on the whole I am inclined to think that 'the appeal does lie. It is fully recognized that the scope article 136 of the Constitution is very wide, but the significance of the language used in the section can be appreciated only by comparing it with the articles which precede it. Article 132 deals with the appellate jurisdiction of the Supreme Court in cases involving a substantial question of law as to the interpretation of the Constitution, and the words used in that article are: "appeal...... from any judgment, decree or finalorder." Article 133 deals with appeals in civil matters and the same words are used here also. Article 134 deals with appeals in criminal matters, and the words used in it are: "appeal...... from any judgment, final order or sentence." In article 136, the words "judgment" and "decree," which are used in articles 132 and 133 are retained. Similarly, the words "judgment" and "sentence" occurring in article 134 are also retained. But the expression "final order" becomes "order," and, instead of the High Court, reference is made to "any court." Certain other words are also used in the article which seem to me to have a special significance, these being "determination," "cause or matter" and "tribunal." It is obvious that these words greatly widen the scope of article 136. They show that an appeal will lie also from a determination or order of "any tribunal" in any cause or matter.
Can we then say that an Industrial Tribunal does not fall within the scope of article 136 ? If we go by a mere label, the answer must be in the affirmative. But we have to look further and see what are the main functions of the Tribunal and how it proceeds to discharge those functions.
This is necessary because 463 I take it to be implied that before an appeal can. lie to this Court from a tribunal it must perform some kind of judicial function and partake to some extent of the character of a Court.
Now there can be no doubt that the Industrial Tribunal has, to use a well-known expression, "all the trappings of a Court" and performs functions which cannot but be regarded as judicial. This is evident from the rules by which the proceedings before the Tribunal are regulated. It appears that the proceeding before it commences on an application which in many respects is in the nature of a plaint. It has the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of discovery, inspection, granting adjournment, reception of evidence taken on affidavit, enforcing the attendance witnesses, compelling the production of documents, issuing commissions, etc. It is to be deemed to be a civil Court within the meaning of sections 480 and 482 of the Criminal Procedure Code, 1898. It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths. The parties appearing before it have the right of examination, cross-examination and re-examination and of addressing it after all evidence has been called. A party may also be represented by a. legal practitioner with its permission.
The matter does not rest there. The main function of this Tribunal is to adjudicate on industrial disputes which implies that there must be two or more parties before it with conflicting cases, and that it has also to arrive at a conclusion as to how the dispute is to be ended. Prima facie, therefore, a Tribunal like this cannot be excluded from the scope of article 136, but before any final conclusion can be expressed on the subject certain contentions which have been put forward on behalf of the respondents have to be disposed of.
The first contention is that the Industrial Tribunal cannot be said to perform a judicial or quasi-judicial function. since it is not required to be guided by any recognized substantive law in deciding disputes 464 which come before it. On the other hand, in deciding industrial disputes, it has to override contracts and create rights which are opposed to contractual rights. In these circumstances, it is said that the very questions which arose before the Privy Council in Moses v.Parker Ex-parte Mose (1) arise in this case, these questions being :
(1) How can the propriety of the Tribunal's decision be tested on appeal, and (2) What are the canons by which the appellate Court is to be guided in deciding the appeal ? Their Lordships of the Privy Council undoubtedly felt that these were serious questions, but they had no hesitation in saying that "if it were clear that appeals ought to be allowed. such difficulties would doubtless be met somehow." This, in my opinion, is a sufficient answer to the difficulty raised. The Tribunal has to adjudicate in accordance with the provisions of the Industrial Disputes Act. It may sometimes override contracts, but so can a Court which has to administer law according to the Bengal or Bihar Moneylenders Act, Encumbered Estates Act and other similar Acts.
The Tribunal has to observe the provisions of the special law which it has to administer though that law may be different from the law which an ordinary Court of justice administers. The appellate Court, therefore, can at least see that the rules according to which it has to act and the provisions which are binding upon it are observed, and its powers are not.exercised in an arbitrary or capricious manner.
The second contention, which is a more serious one, is that the adjudication of the Tribunal has not all the attributes of a judicial decision, because the adjudication cannot bind the parties until it is declared to be binding by the Government under section 15 of the Industrial Disputes Act. It is said that the adjudication is really in the nature of an advice or report which is not effective until made so by the Government. It appears that a similar objection was raised in Rex v. Electricity Commissioner's, London Electricily' (1) [1896] A.C. 245.
Joint Committee Co. (1920) Ex-Parte (1) for the purpose of deciding whether a writ of certiorari should be Issued in the circumstances of the case but was dis. posed of in these words :-"It is necessary, however, to deal with what i think was the main objection of the Attorney-General. In this case he said the Commissioners come to no decision at all. They act merely as advisers. They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or without modifications. Similarly the Minister of Transport comes to no decision. He submits the order to the Houses of Parliament, who may approve it with or without modifications. The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not. Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to any control by the Courts. It is unnecessary to emphasize the constitutional importance of this contention......... In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that in arriving at that decision the Commissioners themselves are to act judicially and within the limits prescribed by Act of Parliament, and that the Courts have power to keep them within those limits.
It is to be noted that it is the order of the Commissioners that eventually takes effect; neither the Minister of Transport who confirms, nor the Houses of Parliament who approve, can under the statute make an order which in respect. of the matters in question has any operation. I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. The authorities are to the contrary.' ' (1) [1924] 1 K.B. 171.
466 It is well known that a writ of certiorari can issue only against an order of a judicial or quasi-judicial tribunal and if it is permissible for the High Court to. issue a writ of certiorari against an Industrial Tribunal, which fact was not seriously disputed before us, I find it difficult to hold that the tribunal does not come within the purview of article 136. If a subordinate Court acts in excess of its jurisdiction or assumes a jurisdiction which it does not possess, the appellate Court can always interfere and do what is contemplated to be done by a writ of certiorari.
It is to be noted that under section 15 of the Industrial Disputes Act, 1947, in cases where the appropriate Government is not a party to the dispute, all that the Government has to do on receiving the award of the Tribunal is to declare it to be binding and to state from what date and for what period it will be binding. Section 15.(2) is mandatory and it provides:
"On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding....... " Thus the Government cannot alter, or cancel, or add to the award, but the award must be declared to be binding as it is. In substance, therefore, the adjudication of the Tribunal amounts to a final determination of the dispute which binds the parties as well as the Government.
Our attention was however drawn to the proviso to section 15 (2), which runs as follows:-"Provided that where the appropriate Government is a. party to the dispute and in its opinion it would be inexpedient on public grounds to give effect to the whole or any part of the award, it shall on the first available opportunity lay the award together with the statement of its reasons for not making a declaration as aforesaid before the Legislative Assembly of the Province, or where the appropriate Government is the Central Government, before the Central Legislative Assembly, and shall, as soon as may be, cause to be moved there in a resolution for the consideration of the 467 award, and the Legislative Assembly may, by its resolution, confirm, modify, or reject the award." This proviso was relied upon by the respondents to show that the right to appeal from the award could not have been contemplated in any case. But the Act itself makes a distinction between cases in which the Government is a party and those in which the Government is not a party. The proviso relates to a very special type of case and as at present advised I do not wish to express any opinion as to whether an appeal lies to this Court or not in such a case, but, in my judgment, where the Government has only to declare the award to be binding, an appeal shall lie.
It is necessary here to say a few words as to the scope of the appeal. As was pointed out by this Court in Pritam Singh v. The State(1), the power under article 136 of the Constitution being a special power is to be exercised only in special cases. The rule so laid down is bound to restrict the scope of the appeal in practice in almost all the cases which fall under article 136. But in some cases a limitation will be imposed on the scope of the appeal by the very nature of the case and of the tribunal from which an appeal is sought to be brought, and a case under the Industrial Disputes Act seems to be an example of such a case.
Dealing now with the merits of the appeal, I am not prepared to hold that this is a proper case for interference with the adjudication of the Tribunal. The power of this Court was invoked by the appellants on four grounds. These grounds have been elaborately examined by Mahajan J. and two of them have been pronounced to be wholly inadequate for justifying our interference. My view with regard to these two grounds is identical with that of Mahajan J. and I do not wish to add to what he has already said on the subject.
The remaining two grounds also are, in my opinion, wholly insufficient to justify the exercise of our special power under article 136. One of these grounds is that the award of the Tribunal is based on no evidence whatsoever. I do not, however, find that this ground (1) [1950] S.C.R. 453.
60 468 was urged in this form in the application for special leave to appeal to this Court. All that was intended to be urged was that the appellants wanted to adduce evidence but were not allowed to do so. From the decision of the Tribunal however, it appears that the evidence that was shut out related to one isolated point only and the Tribunal might well have been justified in not allowing evidence to be admitted on a point which in its opinion had no direct bearing on the issue before them. After hearing the respondents on this particular point, I am not disposed to hold that the Tribunal has committed such an error as would justify the interference of this Court.
The last ground urged is that the award has been signed by only two members of the Tribunal though it originally consisted of three persons and though the entire hearing of the dispute had taken place before all the three persons.
This objection does not appear to me to be fatal to the jurisdiction of the Tribunal, because under section 8 of the Act it is not obligatory on the Government to appoint a new member to fill a vacancy if one of the members ceases to be available at any time during the proceedings. Under that section, if the Chairman ceases to be available, the Government must appoint his successor, whereas if a member ceases to be available the Government may or may not appoint any one to fill his place. In the present case, our attention was drawn to some correspondence which shows that one of the members was called upon to act as a member of another Tribunal and the award in question was pronounced after informing the Government of the procedure which the Chairman and the remaining members intended to adopt.
In the view I have taken, this appeal must fail, and I would accordingly dismiss it with costs.
MAHAJAN J.--This is an appeal by special leave from the determination of an industrial dispute by the Industrial Tribunal appointed under Ordinance VI of 1949.
Bharat Bank Limited, Delhi, the appellant, is a company registered under the Indian Companies Act.
Act.
469 Its employees made certain demands and as a result of an unfavourable response from the bank it appears that they struck work on the 9th March, 1949. The bank in its turn served notices on them to resume work and proceeded to discharge a number of them between the 19th March and 24th March as they failed to do so. The Central Government constituted a Tribunal consisting of three persons for the adjudication of industrial disputes in banking companies under section 7 of the Industrial Disputes Act (XIV of 1947), The disputes mentioned in schedule II of the notification were referred under section 10 of the Act to this Tribunal. Item 18 of this schedule reads as follows :-"Retrenchment and victimization (Specific cases to be cited by employees)." The dispute under this item between the Bharat Bank and its employees was heard by the Tribunal at Delhi and its award was made on the 19th January, 1950. It was published in the Government of India Gazette dated 4th February, 1950, and was declared to be binding for a period of one year.
The award of the Tribunal was signed by two out of its three members.
A preliminary objection was raised on behalf of the Central Government as well as on behalf of the respondents that this Court had no jurisdiction to grant special leave to appeal against the determination of an Industrial Tribunal inasmuch as it did not exercise the judicial powers of the State and that its determination was not in the nature of a judgment, decree or order of a Court so as to be appealable. This being the first case in which special leave was granted from the determination of an Industrial Tribunal, it is necessary to examine the provisions of the Constitution dealing with this matter and if possible, to define the limits of the jurisdiction of this Court under article 136. This article is in these terms :-"(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order m any cause or matter passed 470 or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces." The article occurs in Chapter IV of Part V of the Constitution: "The Union Judiciary." Article deals with the establishment and constitution of the Supreme Court. Article 131 confers original jurisdiction on this Court in certain disputes arising between the Government of India and the States etc. Articles and 133 deal with the appellate jurisdiction of the Court in appeals from High Courts within the territory of India in civil matters. By article 134 limited right of appeal in criminal cases has been allowed. The Judicial Committee of the Privy Council which was the highest Court of appeal for India prior to 10th October, 1949, was not a Court of criminal appeal in the sense in which this Court has been made a Court of criminal appeal under article 134. It could only entertain appeals on the criminal side in exercise of the prerogative of the King.
Article 135 empowers this Court to hear all appeals which under existing laws could be heard by the Federal Court of India. By the Abolition of Privy Council Jurisdiction Act, 1949,which came into force on the 10th October, 1949, all the powers that were possessed by the Judicial Committee of the Privy Council in regard to cases or matters arising in India became exercisable by the Federal Court of India whether those powers were exercisable by reason of statutory authority or under the prerogative of the King. The powers of the Judicial Committee were conferred upon it by the Judicial Committee Act, 1844 (7 & 8 Vict., C. 69). Appeals lay to His Majesty in Council from judgments, sentences, decreesor orders of any Court of justice within any British colony or possession abroad. Closely following article 135 which confers all the powers of the Judicial Committee on the Supreme Court comes article 136. The language employed in this article is very wide and is of a comprehensive character. Powers given 471 are of an overriding nature. The article commences with the words "Notwithstanding anything in this Chapter." These words indicate that the intention of the Constitution was to disregard in extraordinary cases the limitations contained in the previous articles on this Court's power to entertain appeals. These articles dealt with the right of appeal against final decisions of High Courts within the territory of India. Article 136, however, overrides that qualification and empowers this Court to grant special leave even in cases where the judgment has not been given by a High Court but has been given by any Court in the territory of India; in other words, it contemplates grant of special leave in cases where a Court subordinate to a High Court has passed or made any order and the situation demands that the order should be quashed or reversed even without having recourse to the usual procedure provided by law in the nature of an appeal, etc. The word "order" in article 136 has not been qualified by the word "final." It is clear, therefore, that the power to grant special leave under this article against an order of a Court could be exercised with respect to interlocutory orders also. Another new feature introduced in article 136 is the power given to grant special leave against orders, and determinations etc. of any tribunal in the territory of India. This word did not find place in the Judicial Committee Act, where the phrase used was "a Court of justice." It is the introduction of this new expression in article 136 that has led to considerable argument as to its scope. Another expression that did not find place in the Judicial Committee Act but has been introduced in article 136 is the word "determination." A question has been raised as to the meaning to be given to these words in the article.
On the one hand, it was contended that the words "determination" and "tribunal" were introduced in the article in order to bring within the scope of the appellate jurisdiction of this Court all orders of tribunals of different varieties and descriptions. On the other hand, it was said that the words "determination" and "tribunal" were added in the article by way of abundant caution and 472 the intention was that if a tribunal exercised the judicial powers of the State and the decision was passed in the exercise of that power, this Court as the highest judicial Court in the Republic would have power, if it considered, necessary in the ends of justice, to grant special leave.
Clause (2) of article 136 excludes the jurisdiction of this Court in respect of military Courts. or Tribunal. It is interesting to observe that in articles 138, 139 and 140 the Constitution has conferred powers on Parliament for further enlargement of the powers of this Court.
Two points arise for determination in this case: (1) whether the word "tribunal" in this article has been used in the same sense as "Court," or whether it has been used in a wider sense, and (2) whether the word "determination" in the article includes within its scope the determinations made by Industrial Tribunals or other similarly constituted bodies or whether it has reference only to determinations of a Court or a tribunal of a purely judicial character. It was conceded by the learned counsel appearing for the Central Government, Mr. Alladi Krishnaswami Aiyar, that if any tribunal, whether administrative, domestic or quasi-judicial, acts in excess of its jurisdiction, then it can be controlled by the High Courts under the powers conferred on them by article 226 by the issue of a writ of certiorari.
It was said that if the Industrial Tribunal in this case could be proved to have trespassed beyond the limits 0 its statutory jurisdiction, then the remedy lies elsewhere and not by a petition of special leave under article 136. Mr. Alladi's contentions may be briefly summarized as follows:
(1) The expression "tribunal -" means seat of a judge, or a court of justice. Its necessary attribute is that it can give a final judgment between two parties which carries legal sanction by its own force. That the word "tribunal" in juxtaposition to the word "court" could only mean a tribunal 'which exercised judicial functions of the State and did not include within its ambit a tribunal which had quasi-judicial or administrative powers. (2) The kinds of orders against which special leave to appeal could be given under article 136 473 have to be of the same nature as passed by a Court ,' in other words, it was said that unless there was a judicial determination of a controversy between two parties, the order would not be appealable. That in the case of an Industrial Tribunal what gives binding force to the award is the declaration of the government, that the spark of life to it is given by that declaration and without that, the award of the Tribunal is lifeless and has no enforceability and hence cannot be held to be of an appealable nature. It was further said that in cases between the Government and its employees, by the procedure prescribed in the Act the award could also be rejected, and that being so, by its own determination a tribunal could not impose a liability or affect rights. Dr. Bakshi Tek Chand, appearing for the bank, on the other hand argued that whenever a tribunal, whether exercising judicial or quasi-judicial functions, determined a matter in a judicial manner, then such a determination is within article 136. It was said that an Industrial Tribunal has no administrative or executive functions, that its duty is to adjudicate on an industrial dispute, i.e., to act as a Judge, on certain kinds of disputes between employers and employees and that its functions are of a judicial nature, though the ambit of the powers conferred is larger than that of an ordinary Court of law inasmuch as it can grant reliefs which no Court of law could give, but that is because of the powers conferred on it by law. It was argued that the plain words of the article should not be given a narrow meaning when the intention of the Constitution was to confer the widest power on this Court. It was further contended that as between private employers and employees and even in certain cases between Government and its employees the decision of the Tribunal was binding on the Government and Government had no power either to affirm, modify or reject it. All that it was authorised to do was to announce it and by its declaration give it enforceability; that fact, however, could not affect the question of appealability of the determination under article 136. It was finally argued that powers should be exercised by this Court wherever there is a miscarriage 474 of justice by a determination of any tribunal and that if the intention of the Constitution by use of the word "tribunal"was in the same sense as "court," then it was not necessary to import it in article 136, because all tribunals that exercise judicial functions fall within the definition of the word "court" though they may not have been so described.
After considerable thought I have reached the conclusion that the preliminary objection should be overruled. I see no cogent reasons to limit the plain words of the statute and to place a narrow interpretation on words of widest amplitude used therein. In construing the articles of the Constitution it has always to be remembered that India has been constituted into a sovereign democratic republic in order to ensure justice to all its citizens. In other words, the foundations of this republic have been laid on the bedrock of justice. To safeguard these foundations so that they may not be undermined by injustice occurring anywhere this Court has been constituted. By article S2 of the Constitution the Court is empowered to see that the fundamental rights conferred on the citizens by the Constitution are not in any way affected. By article 136 it has been given overriding power to grant special leave to appeal against orders of courts and tribunals which go against the principle of natural justice and lead to grave miscarriage of justice. The exercise of these, powers could only have been contemplated in cases which affect the rights of people living within the territory of India in respect of their person, property or status. The question, therefore, for consideration is whether the jurisdiction conferred by use of unambiguous phraseology and by words which have a plain grammatical meaning and are of the widest amplitude should be limited and restricted on considerations suggested by Mr. Alladi. The construction suggested by the learned counsel, if accepted, would in the first instance make the use of certain words in the article unnecessary and redundant and would run counter to the spirit of the Constitution. It must be presumed that the draftsmen of the Constitution knew well the fact that there were a number of tribunals constituted in this country 475 previous to the coming into force of the Constitution which were performing certain administrative, quasi judicial or domestic functions, that some of them had even the trappings of a Court but in spite of those trappings could not be given that description. It must also be presumed that the Constitution-makers were aware of the fact that the highest Courts in this country had held that all tribunals that discharged judicial functions fell within the definition of the expression "Court." If by the use of the word "tribunal" in article 136 the intention was to give it the same meaning as "Court," then it was redundant and unnecessary to import it in the article because, by whatever name described, such a tribunal would fall within the definition of the word "Court." The word "Court" has a well-known meaning in legislative history and practice.
As pointed out in Halsbury's Laws of England, the word "Court" originally meant the King's Palace but subsequently acquired the meaning of (1) a place where justice was administered, and (2) the person or persons who administer it. In the Indian Evidence Act it is defined as including all judges and magistrates and all persons except arbitrators legally authorized to take evidence. This definition is by no means exhaustive and has been framed only for the purposes of the Act. There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law. However, by agreement between parties arbitrators may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a Court. It appears to me that before a person or persons can be said to constitute a Court it must be held that they derive their powers from the State and are exercising the judicial powers of the State.
In R.v. London County Council (1), Saville L.J. gave the following meaning to the word "Court" or "judicial authority" :-(1) [1931]2K.B. 215. 61 476 "It is not necessary that it should be a Court in the sense that this Court is a Court, it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court if it is a tribuna which has to decide rightly after hearing evidence and opposition." As pointed out in picturesque language by Lord Sankey L.C. in Shell Co. of Australia v. Federal Commissioner of Taxation(1), there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. It seems to me that such tribunals though they are not full-fledged Courts, yet exercise quasi-judicial functions and are within the ambit of the word "tribunal" in article 136 of the Constitution.
It was pointed out in the above case that a tribunal is not necessarily a Court in this strict sense because it gives a final decision, nor because it hears witnesses oath nor because two or more contending parties appear before it between whom it has to decide, nor because it gives decisions which affect the rights of subjects nor because there is an appeal to a Court, nor because it is a body to which a matter is referred by another body. The intention of the Constitution by use of the word "tribunal" in the article seems to have been to include within the scope of article 136 tribunals adorned with similar trappings as Court but strictly not coming within that definition. Various definitions of the phrase "judicial power" have been given from time to time. The best definition of it on high authority is the one given by Griffith C.J. in Huddart, Parker & Co. v. Moorehead(2), wherein it is defined as follows :"The words 'judicial power' as used in section 71 the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin [19311 A..C. 275. (2) 8 C.L.R. 330, 357.
477 until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." It was conceded that a tribunal constituted under the Industrial Disputes Act, 1947, exercises quasi judicial powers. That phrase implies that a certain content of the judicial power of the State is vestedit and it is called upon to exercise it. An attempt was made to define the words "judicial" and "quasi judicial" in the case of Cooper v. Wilson (1). The relevant quotation reads thus :-"A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites :(1) The presentation necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing' dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4)is in fact taken by administrative action, the character of which is determined by the Minister's free choice." The extent of judicial power exercised by an ]industrial Tribunal will be considered hereinafter in the light of the observations cited above.
Reference was made to certain passages from Professor Allen's book on Law and Order, Chapter IV, page 69, where mention is made of the kinds of administrative tribunals functioning in various countries today. Porter on Administrative Law, 1929 Edn., (1) [1937] 2 K.B. 309, at p. 340.
478 page 194, was also relied upon. There can be no doubt that varieties of administrative tribunals and domestic tribunals are known to exist in this country as well as in other countries of the world but the real question to decide in each case is as to the extent of judicial power of the State exercised by them. Tribunals which do not derive authority from the sovereign power cannot fall within the ambit of article 136. The condition precedent for bringing a tribunal within the ambit of article 136 is that it should be constituted by the State. Again a tribunal would be outside the ambit of article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. Tribunals, however, which are found invested with certain functions of a Court of justice and have some of its trappings also would fall within the ambit of article 136 and would be subject to the appellate control of this Court whenever it is found necessary to exercise that control in the interests of justice.
It is now convenient to consider whether a tribunal constituted under the Industrial Disputes Act, 1947, exercises all or any one of the functions of a Court of justice and whether it discharges them according to law or whether it can act as it likes in its deliberations and is guided by its own notions of right and wrong. The phrase "industrial dispute" has been defined in section 2 clause (k) of the Act as follows :-"any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person." Such a dispute concerns the rights of employers and employees. Its decision affects the terms of a contract of service or the conditions of employment. Not only may the pecuniary liability of an employer be considerably affected by the adjudication of such dispute but it may even result in the imposition of punishments on him. It may adversely 479 affect the employees as well. Adjudication of such a dispute affects valuable rights. The dispute and its result can always be translated in terms of money. The point for decision in the dispute usually is how much money has to pass out of the pocket of the employer to the pocket of the employee in one form or another and to what extent the right of freedom of contract stands modified to bring about industrial peace. Power to adjudicate on such a dispute is given by section 7 of the statute to an Industrial Tribunal and a duty is cast on it to adjudicate it in accordance with the provisions o Act. The words underlined clearly imply that the dispute has to be adjudicated according to law and not in any other manner. When the dispute has to be adjudicated in accordance with the provisions of the Act, it follows that the tribunal has to adhere to law, though that law may be different from the law that an ordinary Court of justice administers. It is noteworthy that the tribunal is to consist of experienced judicial officers and its award is defined as a determination of the dispute. The expression "adjudication" implies that the tribunal is to act as a judge of the dispute; in other words, it sits as a Court of justice and does not occupy the chair of an administrator.
It is pertinent to point out that the tribunal is not given any executive or administrative powers. In section 38 of the Act power is given to make rules for the purpose of giving effect to the provisions of the Act. Such rules can provide in respect of matters which concern the powers and procedure of tribunals including rules as to the summoning of witnesses, the production of documents relevant to the subjectmatter and as to appearance of legal practitioners in proceedings under this Act. Rule 3 of these rules provides that any application for the reference of an industrial dispute to a tribunal shall be made in form (A) and shall be accompanied by a statement setting forth, inter alia, the names of the parties to the dispute and the specific matters of dispute. It is in a sense in the nature of a plaint in a suit. In rule 13 power is given to administer oaths. Rule 14 provides as follows :"A tribunal may accept, admit or call for 480 evidence at any stage of the proceedings before it and in such manner as it may think fit." Rule 17 provides that at its first sitting the tribunal is. to call upon the parties to state their case. In rule 19 provision has been made for proceedings ex-parte. Rule 21 provides that in addition to the powers conferred by subsection (3) of section 11 of the Act, a tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of the following matters, namely, (a) discovery and inspection;
(b) granting of adjournment; (c) reception of evidence taken on affidavit; and that the tribunal may summon and examine suo motu any person whose evidence appears to it to be material. It further says that the tribunal shall be deemed to be a civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure , 189S. Rule 21 says that the representatives of the parties, appearing before a tribunal, shall have the right of examination, cross-examination and re-examination and. of addressing the Court or Tribunal when all evidence has been called. In rule 30 it is provided that a, party to a reference may be represented by a legal practitioner with the permission of the tribunal and subject to such conditions as the tribunal may impose. In section 11 (3) it is laid down that a tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of the following matters, namely, (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed; and every inquiry or investigation by a tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. It is difficult to conceive in view of these provisions that the Industrial Tribunal performs any functions other than that of a judicial nature.
The tribunal has certainly the first three requisites and characteristics of a Court as defined above. It has certainly a considerable element of the fourth also inasmuch as.
481 the tribunal cannot take any administrative action, the character of which is determined by its own choice. It has to make the adjudication in accordance with the provisions of the Act as laid down in section 7. It consists of persons who are qualified to be or have been judges. It is its duty to adjudicate on a serious dispute between employers and employees as affecting their right of freedom of contract and it can impose liabilities of a pecuniary nature and disobedience of its award is made punishable. The powers exercisable by a tribunal of this nature were considered in a judgment' of the Federal Court of India in Western India Automobile Association v. Industrial Tribunal, Bombay (x), and it was observed that such a tribunal can do what no Court can, namely, add to or alter the terms or conditions of the contract of service. The tribunal having been entrusted with the duty of adjudicating a dispute of a peculiar character, it is for this reason that it is armed with extraordinary powers. These powers, however, are derived from the statute. These are the rules of the game and it has to decide according to these rules. The powers conferred have the sanction of law behind it and are not exercisable by reason of any discretion vested in the members of the tribunal. The adjudication of the dispute has to be in accordance with evidence legally adduced and the parties have a right to be heard and being represented by a legal practitioner. Right to examine and cross-examine witnesses has been given to the parties and finally they can address the tribunal when evidence is closed. The whole procedure adopted by the Act and the rules is modelled on the Code of Civil Procedure . In my opinion, therefore, the Industrial Tribunal has all the necessary attributes of a Court of justice. It has no other function except that of adjudicating on a dispute. It is no doubt true that by reason of the nature of the dispute that they have to adjudicate the law gives them wider powers than are possessed by ordinary Courts of law, but powers of such a nature do not affect (1) [1949]] F.C.R. 321.
482 the question that they are exercising judicial power. Statutes like the Relief of Indebtedness Act, or the Encumbered Estates Act have conferred powers on Courts which are not ordinarily known to law and which affect contractual rights.
That circumstance does not make them anything else but tribunals exercising judicial power of the State, though in a degree. different from the ordinary Courts and. to an extent which is also different from that enjoyed by an ordinary Court of law. They may rightly be described as quasi-judicial bodies because they are out of the hierarchy of the ordinary judicial system but that circumstance cannot affect the question of their being within the ambit of article 136.
It may also be observed that the tribunal is deemed to be a civil Court for certain purposes as laid down in rule 21 of the rules above cited and in section 11(3) of the Act.
As a civil Court if it exercises any of the powers contemplated by this section its decisions would become subject to appeal to a District Judge and a fortiori this Court's power under article 136. would at once be attracted in any case in respect of these matters. Again, in Chapter VI of the Act breach of the terms of an award has been made punishable by section 29 of the Act. The result therefore, is that disobedience of the terms of an award is punishable under the Act. That being so, a determination of the tribunal not only affects the freedom of contract and imposes pecuniary liability on the employer or confers pecuniary benefits on the employees, but it also involves serious consequences as failure to observe those terms makes a person liable to the penalties laid down in Chapter VI. An award which has these serious consequences can hardly be said to have been given by a tribunal which does not exercise some of the most important judicial functions of the State.
Considerable stress was laid by Mr. Alladi on the provisions of sections 15 and 19 of the Act. Section 15 enacts as follows :--"(1) Where an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its 483 proceedings expeditiously and shall, as soon as practicable on the conclusion thereof, submit its award to the appropriate Government.
(2) On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding.
Provided that where the appropriate Government is a party to the dispute and in its opinion it would be inexpedient on public grounds to give effect to the whole or any part of the award, it shall on the first available opportunity lay the award together with the statement of its reasons for not making a declaration as aforesaid before the Legislative Assembly of the province, or where the appropriate Government, is the Central Government, before the Central Legislature, an d shall, as soon as may be, cause to be moved therein a resolution for the consideration of the award; and the Legislative Assembly or as the case may be, the Central Legislature, may by its resolution confirm, modify or reject the award.
(3) On the passing of a resolution under the proviso to sub-section (2), unless the award is rejected thereby, the appropriate Government shall11 by order in writing declare the award as confirmed or modified by the resolution, as the case may be, to be binding.
(4) Save as provided in the proviso to subsection (3) of section 19, an award declared to be binding under this section shall not be called in question in any manner." As regards clause (4), it was conceded rightly that a law dealing with industrial disputes and enacted in the year 1947 could not in any way,affect the provisions of the Constitution laid down in article 136. It was however, strenuously urged that the award of the tribunal had no binding force by itself and unless the appropriate Government made a declaration in writing under clause (2) of section 15, this award was a lifeless document and had no sanction behind it and therefore it could not have been contemplated that if would be appealable even by special leave. In my opinion, this contention is unsound. The provisions of clause (2) of 484 section 15 leave no discretion in the Government either to affirm, modify or reject the award. It is bound to declare it binding. It has no option in the matter. In such a situation it is the determination by the tribunal that matters. Without that determination Government cannot function. It does not possess the power either to adjudicate the dispute or to alter it in any manner whatsoever.
That power vests in the tribunal alone. The rights of the parties are really affected by the adjudication contained in the award, not by the Government's declaration which is automatic. It is no doubt true that announcement of the award by the Government gives it binding force but that does not affect the question of the appealability of the determination under article 136 of the Constitution. The apposite answer to this contention may be given in the language of the decision in Rex v. Electricity Commissioners (1). The relevant passage runs thus :-"It is necessary, however, to deal with what I think was the main objection of the Attorney-General. In this case he said the Commissioners come to no decision at all. They act merely as advisers. They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or without modifications. Similarly the Minister of Transport comes to no decision. He submits the order to the Houses of parliament, who may approve it with or without modifications. The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not. Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to, any control by the Courts.. It is unnecessary to emphasize the constitutional importance of this contention. Given its full effect, it means that the checks and safeguards which have been imposed by Act of Parliament, including the freedom from compulsory taking, can be removed, and new and onerous and (1) [1924] 1 K.B. 171, at 207.
485 inconsistent obligations imposed without an Act of Parliament, and by simple resolution of both Houses of Parliament.
I do not find it necessary to determine whether, on the proper construction of the statute, resolutions of the two Houses of Parliament could have the effect claimed. In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that they act judicially and within the limits prescribed by Act of Parliament, and that the Courts have power to keep them within those limits. It is to be noted that it is the order of the Commissioners that eventually takes effect, neither the Minister of Transport who confirms, nor the Houses of Parliament who approve. can under the statute make an order which in respect of the matters in question has any operation. I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. The authorities are to the contrary The observations, though they relate to a case which concerns the issue of a writ of prohibition and certiorari, have application to the present case. Here no discretion whatsoever has been left in the Government in ordinary cases to either modify or t0 reject the determination of the tribunal. The fact that the Government has to make a declaration after the final decision of the tribunal is not in any way inconsistent with the view that the tribunal acts judicially. It may also be pointed out that within the statute itself a clue has been provided which shows that the circumstance that the award has to be declared by an order of Government to be binding does not affect the question of its appeal ability. In article 136 clause (2) express provision has been made for excepting from the ambit of article 136 the decisions of military courts and tribunals. It follows that but for the exception it was considered that these would be within article 136 clause (1). It is quite clear from the various provisions of the Army Act that the decisions of military tribunals or courts are subject to confirmation either by 486 the Commander-in-Chief or various other military authorities. It is only after such confirmation that 'that can operate. It has never been considered that fact in any way affects the question of their appeal ability.
Rex v. Minister of Health (1) also supports this view.
There by the Housing Act, 1925, by section 40, a local authority which had prepared an improvement scheme was required to present a petition to the Minister praying that an order should be made confirming such scheme. Sub-section (3) provided that the Minister after considering the petition may cause a local inquiry to be made and may by order confirm the scheme with or without conditions or modifications. In sub-section (5) it was stated that the order of the Minister when made shall have effect as if enacted in this Act. It was held be the Court of Appeal that as the order made by the Minister was made without the statutory conditions having been complied with it was ultra vires and therefore a writ of certiorari should issue for the purpose of quashing it. Reliance was placed by Scrutton L.J. on Rex v. Electricity Commissioners (2). The same.view was expressed in Minister of Health v. The King (3). It was observed that judicial review by prohibition or a writ of certiorari was permissible if the Minister of Health in confirming the order exceeded his statutory powers. It is clear therefore that simply because an order has to be confirmed by a Minister or by the Government it in any way affects the power of judicial review. Reference may also be made to the observations in Smith v. The Queen (4). At page 623 it was observed that it is a common principle in every case which has in itself the character of a judicial proceeding that the party against whom a judgment is to operate shall have an opportunity of being heard. In this sense it can hardly be disputed that the proceeding before an industrial Tribunal is a judicial proceeding. In my judgment, therefore, the contention raised by Mr. Alladi that this (1) [1939] 2 K.B. 98. (3) [1931] A.C.
(2) [1924] 1 K.B. 171. (4) 3 A.C. 245.
487 Court cannot exercise its powers under article because the decision of the tribunal has no force till a declaration is made by the Government cannot be sustained.
As regards section 19, it was contended that an award declared by the appropriate Government under section 15 to be binding can only come into operation on such date as may be specified by the appropriate Government and can only remain in operation for such period not exceeding one year, as may be fixed by that Government and it was said that herein the Government had the power to state the period from which the award was to commence and the time for which it was to remain in force. This section does not, in my opinion, affect the question of the appeal ability of the determination of the tribunal. Government has certain functions to perform in its own sphere after the award is made. In certain cases it is bound to declare that award binding. In other cases, when it is itself a party to the dispute, it has certain overriding powers and these overriding powers are that if it considers that the award is not in public interests it may refer it to the legislature. The legislature, however, has the power to modify, accept or reject the award. These overriding powers presuppose the existence of a valid determination by a tribunal. If that determination is in excess of jurisdiction or otherwise proceeds in a manner that offends against the rules of natural justice and is set aside by exercise of power under article 136, then no occasion arises for exercise of governmental power under the Act. Given a valid award, it could not be denied that the Government could exercise its powers in any manner it considered best and the exercise of that power is outside the constitution of this Court. In this connection reference was made to Moses v. Parker (1). The passage on which emphasis was laid reads as follows :-"The Court has been substituted for the commissioners to report to the governor. The difference is that their report is to be binding on him. Probably it was (1) [1896] A.C.
488 thought that the status and training of the judges made them the most proper depositaries of that power. But that does not make their action a judicial action in the sense that it can be tested and altered by appeal. It is no more judicial than was the action of the commissioners and the governor.
The Court is to be guided by equity and good conscience and the best evidence. So were the commissioners. So every public officer ought to be. But they are expressly exonerated from all rules of law and equity, and all legal forms.
How then can the propriety of their decision be tested on appeal ? What are the canons by 'which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong ? It seems almost impossible that decisions can be varied except by reference to some rule, whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules, and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case. If it were clear that appeals ought to be allowed such difficulties would doubtless be met somehow. But there are strong arguments to show that the matter is not of an appreciable nature." One would have expected that after this opinion the decision would have been that the Judicial Committee had no jurisdiction to entertain the appeal but their Lordships proceeded to base their decision not on this ground but on the ground that this was not a fit case for the exercise of the prerogative of the King. In my opinion, the observations made in that case have no apposite application to the provisions of the statute with which we are concerned. I do not see any difficulty in this case in testing the propriety of the determination of the tribunal. This Court is not to substitute its decision for the determination of the tribunal when granting relief under article 136. When it chooses to interfere in the exercise of these extraordinary powers, it does so because the tribunal has either exceeded its jurisdiction or has approached the questions referred to it in a manner which is likely to 489 result in injustice or has adopted a procedure which runs counter to the well established rules of natural justice.
In other words, if it ,has denied a hearing to a party or ha
