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M.C. MAHAJAN, J.
- Bharat Bank Limited, Delhi, the appellant, is a company registered under the Indian Companies
Act. Its employees made certain demands and as a result of an unfavourable response from the Bank it
appears that they struck work on 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
(14 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:
- This is an appeal by special leave from the determination of an industrial dispute
by the Industrial Tribunal appointed under Ordinance VI of 1949.
“Retrenchment and victimization (specific cases to be cited by employees).”
- The dispute under this item between 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 in any
cause or matter passed 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 124
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 132 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 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
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Judicial Committee Act, 1844. Appeals lay to His Majesty in Council from judgments, sentences, decrees
or 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 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 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 of 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 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
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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 the Government and its employees
the decision of the Tribunal was binding on the Government and the 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 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 32 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 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.
11 - 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 [(1931) 2 KB 215], Saville, L.J. gave the following meaning to
the word “court” or “judicial authority”:
“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 Tribunal 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 [(1931) AC 275] 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 on 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 [8 CLR 330, 357] wherein it is defined as follows:
“The words ‘judicial power’ as used in Section 71 of 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 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
vested in it 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 [(1937) 2 KB 309, 340]. 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 (not 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
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place of (4) is in fact taken by administrative action, the character of which is determined by the
Minister’s free choice.” - Reference was made to certain passages from Professor Allen’s book on Law and Order, Chapter
IV, p. 69, where mention is made of the kinds of administrative tribunals functioning in various countries
today. 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. - 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 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 of 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 subject-matter 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 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 sub-section (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
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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, 1898. Rule 21 says that the
representatives of the parties, appearing before a tribunal, shall have the right of examination, crossexamination 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 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 [(1949) FCR 321] 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
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
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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. - 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 it would be appealable even by special leave. In my opinion, this contention is
unsound. The provisions of clause (2) of 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. The relevant passage runs thus:
“It is necessary, however, to deal with what I think was the main objection of the AttorneyGeneral. 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 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 to 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
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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 appealability. 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 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 that fact in any way affects the question of their appealability.
Rex v. Minister of Health 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 by 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. 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. 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 appealability 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. - 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 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 has refused to record his evidence or has acted in any other manner, in
an arbitrary or despotic fashion. In such circumstances no question arises of this Court constituting itself
into a tribunal and assuming powers of settling a dispute. All that the Court when it entertains an appeal
would do is to quash the award and direct the Tribunal to proceed within the powers conferred on it and
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approach the adjudication of the dispute according to principles of natural justice. This Court under
Article 136 would not constitute itself into a mere court of error. Extraordinary powers have to be
exercised in rare and exceptional cases and on well-known principles. Considered in the light of these
principles, there is no insuperable difficulty in the present case of the nature pointed out in the passage
cited above. It was conceded that the High Court could exercise powers under Article 226 and could
quash an award but it was said that under Article 136 this power should not be exercised in an appeal. I do
not see why? Particularly when after the High Court has passed any decision on an application made to it
in exercise of the powers under Article 226, that decision could be brought to this Court in appeal. In the
matter of an industrial dispute where expedition is the crux of the matter, it is essential that any abuse of
powers by such Tribunals is corrected as soon as possible and with expedition. - The phraseology employed in Article 136 itself justifies this course. The article empowers this
Court to grant special leave against sentences or orders made by any court. In all other articles of the
Constitution right of appeal is conferred against final decisions of the highest court of appeal in the
country but under this article power is given to this Court to circumvent that procedure if it is considered
necessary to do so. I am, therefore, of the opinion that the mere circumstance that a remedy in the nature
of a writ of certiorari is open to the petitioners does not necessarily lead to the conclusion that the power
of this Court under Article 136 is circumscribed by that circumstance. Whenever judicial review is
permissible in one form or another, this Court as the highest court in the land can exercise its special
powers and circumvent ordinary procedure by granting special leave. What it has to ultimately decide it
can decide earlier. - I now proceed to examine some of the cases to which reference was made by Mr Alladi. Three
Australian cases were cited which concern the construction of Sections 51, 71 and 72 of the Australian
Constitution. Section 72 requires that every Justice of the High Court and every Justice of any other court
created by Parliament of the Commonwealth shall subject to the power of removal contained in the
section be appointed for life. Section 71 confers the whole judicial power of the Commonwealth upon the
courts therein mentioned and no other tribunal or body can exercise that power. Every court referred to in
Section 71 has to be constituted in the manner provided by Section 72. The question in these cases was as
to the meaning of the phrase “judicial power of the Commonwealth”. Similar phraseology has not been
used in any part of the Constitution of India and in these circumstances it is difficult to derive any
assistance from these decisions in solving the problem before us. The Constitution of India is not
modelled on the Constitution of Australia and that being so, any observations made in decisions given
under that Constitution cannot be held to be a safe guide in the interpretation of language employed in a
Constitution differently drafted. - It was argued that the Industrial Tribunal here was an Arbitration Tribunal of the same kind as in
Australia and exercises similar functions. It is however pertinent to observe that the phraseology
employed in Section 15 of the Indian Act is different from that used in the Australian statute. The Indian
statute has constituted different bodies for different purposes. An Industrial Tribunal has been constituted
only to discharge one function of adjudication. It is not described as an Arbitral Tribunal. The Act has
avoided the use of the word “arbitration” either in preamble or in any of its relevant provisions though the
determination has been named as an award. In these circumstances it is unsafe to seek any guidance from
observations made in this case. - The learned counsel contended that the word “tribunal” in Article 136 could only have reference
to those Tribunals which exercise functions equivalent to that of a court of justice. I have no hesitation in
holding that the Industrial Tribunal has similar attributes as that of a court of justice in view of the various
provisions to which I have made reference. - It was again urged by Mr Alladi that the word “tribunal” was introduced in the article to provide
for cases of tribunals like the Board of Revenue. The suggestion does not appear to be sound, because a
Revenue Board has all the attributes of a court of justice and falls within the definition of the word
“court” in matters where it adjudicates on rights of parties.
17 - The word “tribunal” has been used in previous legislation in a number of statutes and it is difficult
to think that the Constitution when it introduced this word in Article 136 intended to limit its meaning to
only those Tribunals which though not described as courts strictly speaking, were discharging the same or
analogous functions as were being discharged by courts. - For the reasons given above I am of the opinion that the word “tribunal” in Article 136 has to be
construed liberally and not in any narrow sense and an Industrial Tribunal inasmuch as it discharges
functions of a judicial nature in accordance with law comes within the ambit of the article and from its
determination an application for special leave is competent. - The question now to determine is whether the exercise of overriding powers of this Court can be
justified on any ground whatsoever in the present case. Dr Bakshi Tek Chand for the petitioner-bank
urged four grounds justifying exercise of the special jurisdiction of this Court. Firstly, he contended that
the word “victimization” used in clause 18 of the reference had been interpreted in such a manner by the
Tribunal that it had usurped jurisdiction to decide disputes which were never referred to it. In my view
this is not a matter which can justify the exercise of the powers under Article 136. This Court is not a
mere court of error. The word “victimization” has not been defined in the statute and is not in any sense a
term of law or a term of article. It is an ordinary English word which means that a certain person has
become a victim, in other words, that he has been unjustly dealt with. It was argued that the word has
acquired a special meaning in regard to industrial disputes and connotes a person who becomes a victim
of the employer’s wrath by reason of his trade union activities and that the word cannot relate to a person
who has been merely unjustly dismissed. Be that as it may. The determination of the Tribunal has not
been materially affected by this interpretation of the word to any large extent and that being so, it does not
call for the exercise of the special power. - The second ground urged was that the Tribunal has erred in ordering reinstatement of persons
who were guilty of an illegal strike. It was contended that Section 23(b) of the Act has been wrongly
construed by it and as a result of this misconstruction persons who were guilty of a wrong and who could
not have been reinstated have been reinstated. In brief, the argument was that under Section 23(b) when a
matter has been referred to a tribunal in respect of an earlier strike, any strike during the pendency of that
dispute is an illegal strike and that was the situation here. The employees of the bank had struck work in
December 1948. That dispute had been referred to an Industrial Tribunal. It was during the pendency of
that dispute that another strike took place which led to the dismissal of the employees who have now been
reinstated by the present award. The Calcutta High Court has held that a strike during the pendency of the
period of truce and during the pendency of an earlier dispute before a Tribunal is illegal even if it is
brought about as a result of fresh and new demands which are not covered by the earlier dispute. One of
the members of the Tribunal thought that the decision laid down the law correctly on the point, but the
other member thought that the decision was erroneous. Both of them, however, agreed that whether the
strike was legal or illegal that point did not in any way affect the question that they had to decide under
Issue 18. The consequences of an illegal strike are laid down in the Act and certain penalties are provided
therein. The Act nowhere states that persons guilty of illegal strike cannot be reinstated. Be that as it may.
The reference to the Tribunal was made by the Government in respect of an illegal strike and the Tribunal
was bound to give its decision on the reference. Item 18 of Schedule II clearly empowers the Tribunal to
deal with cases of victimization as a result of the third strike which the petitioner described as illegal. The
Tribunal may be wrong in the view they have taken but it seems to me this is again not a question of that
vital character which would justify the grant of special leave under Article 136. - The next question raised by the learned counsel was that the award of the Tribunal is based on no
evidence whatsoever. This contention requires serious consideration. I have examined the proceedings of
the Tribunal and it appears that all it did was that as required by Rule 17 at the first sitting it called upon
the parties to state their cases. Mr Parwana on behalf of the employees stated their respective cases and
Mr Ved Vyas who represented the Bank stated the Bank’s case and after the cases had been stated the
proceedings terminated and both parties addressed arguments and the Tribunal proceeded to give its
award. Whether the charge of victimization in individual cases was proved or not depended on proof of
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certain facts which had to be established by evidence. The onus of proving victimization clearly rested on
the employees. No evidence whatsoever was led on their behalf. The statement of the case by Mr Parwana
was not on oath. There was no examination or cross-examination of Mr Parwana. No affidavit supporting
the facts stated by Mr Parwana was filed by him or by any employee. Mr Parwana produced an abstract of
the correspondence but the original correspondence was not produced. The Bank disputed the facts stated
by Mr Parwana by means of a lengthy affidavit. It seems no reference was made even to this affidavit by
the Tribunal. No counter affidavit was filed in reply to the facts stated in this affidavit. The Bank wanted
to call some evidence. Particular reference was made in respect of a scurrilous letter issued by one
Bhattacharya on behalf of the employees and distributed by them, which it is alleged considerably shook
the credit of the Bank. This opportunity was denied to it. It was contended before us that the Bank wanted
to lead evidence on certain matters and that the opportunity to lead it was denied. There is nothing on the
record to support this contention. The result therefore is that the facts on the basis of which allegations of
victimization have been made are neither supported by an affidavit nor by any evidence and the award is
based on no evidence whatsoever. The Act as well as the Rules framed under it contemplate a proper
hearing, discovery and inspection of documents and production of evidence etc. None of this procedure
was followed by the Tribunal. It is difficult to see on what material the Tribunal has given its award as
there is none existing on the present record and the respondents’ counsel could not point out to any such
material. At one time during the argument I was inclined to think that possibly both parties by agreement
consented to treat the statement of case as evidence in the case and did not wish to produce any other
evidence, but the affidavit filed on behalf of the Bank disputes all the facts stated by Mr Parwana. The
only evidence on the record is the Bank’s affidavit and if the facts contained in the affidavit are accepted,
then the determination made by the Tribunal cannot stand. It seems to me therefore that the procedure
adopted by the Tribunal was against all principles of natural justice and the award is thereby vitiated and
should be set aside. It happens that when the safeguard of an appeal is not provided by law the tendency
sometimes is to act in an arbitrary manner like a benevolent despot. Benevolent despotism, however, is
foreign to a democratic Constitution. The members of the Tribunal seem to have thought that having
heard the statement of the cases of the parties they could proceed to a judgment on their own view of its
right or wrong unaided by any material. That kind of procedure to my mind is unwarranted by the statute
and is foreign to a democratic Constitution. In these circumstances it is the compelling duty of this Court
to exercise its extraordinary powers and to quash such an award. - The last contention raised by Bakshi Tek Chand was that though a Tribunal consisting of three
persons was appointed to adjudicate on the dispute, the award has only been signed by two of them.
Reference in this connection was made to Section 16 of the Act which says that the award of a Tribunal
shall be in writing and shall be signed by all the members of the Tribunal and that nothing in the section
shall be deemed to prevent any member of the Tribunal from recording a minute of dissent. The
provisions of the section are mandatory and have not been complied with. It is common ground that the
case was stated by the parties at a sitting when all the members of the Tribunal were present and the
arguments were heard by all of them. No sitting took place subsequent to this which would have
necessitated the carrying on of proceedings by two members of the Tribunal by a quorum. When the
matter has been heard by all the three members, the award should have been given by all of them.
Therefore the award given by two of them is not the award of the Tribunal constituted by the
Government. It is therefore vitiated and has to be quashed. Reference in this connection was made to
Section 8 of the Act which reads as follows:
“If the services of the chairman of a Board or of the Chairman or other member of a court or
tribunal cease to be available at any time the appropriate Government shall, in the case of a
Chairman, and may in the case of any other member, appoint another independent person to fill
the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so
reconstituted.” - The Tribunal was never reconstituted by the Government by any notification. Under Section 7 a
Tribunal has to be constituted in accordance with the provisions of the Act by the Government. The
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Government having constituted a Tribunal of three persons it had power under Section 8 to reconstitute it
but did not exercise that power. The result therefore is that the Tribunal as originally constituted was not
the Tribunal which gave the award in this reference. Only two members have given the award. It was said
that one of the members ceased to be available and the Government was not bound to fill up that vacancy.
There is no material on the record to prove whether any member became unavailable and if so, when. But
even if a member becomes unavailable and the Government does not choose to fill up the vacancy, still
the Government has to reconstitute the Tribunal by saying that two members will now constitute the
Tribunal. An affidavit with two telegrams annexed was filed before us on behalf of the respondents which
disclosed that Mr Chandrasekhara Aiyar who was one of the members of the Tribunal, in November
1949, was appointed a member of the Boundary Commission in Bengal and that the other two members
sent a telegram to the Labour Ministry asking it to fill up the vacancy or to reconstitute the Tribunal. The
advice given by the Ministry was that they could proceed as they were and that the Government would
later on, if necessary, fill up the vacancy. We are not concerned whether the advice given was right or
wrong. But the fact remains that the Tribunal was never reconstituted and it was not denied that Mr
Chandrasekhara Aiyar is now sitting in the same Tribunal without being again nominated to it and the
Tribunal is hearing the same reference under the other issues referred to it. Moreover, I do not see why
after having heard the reference he could not give the award even if he was in Calcutta or sign the award
given by the other two members. The idea of three persons hearing a case and two of them deciding it is
repugnant to all notions of fairness. It may well have been that the opinion of the third may have
influenced the other two or the decision arrived at may have been quite different. It so happened in this
case that two members of the Tribunal differed on an important question of law but somehow adjusted
their differences and gave a unanimous award. The presence of the third in such a situation may have very
vitally affected the result. After a good deal of thought I feel that it would be most dangerous for this
Court to condone proceedings of this character. If exceptional powers are not exercised even when a body
legally constituted under the statute does not function according to the statute, then they defeat the very
purpose of the Constitution. The provisions of Section 18 of the Industrial Disputes Act are also of a
peremptory nature. - For the reasons given above I would quash this award and direct that the Tribunal which is still
functioning should readjudge Item 18 of the reference and then submit its award on this point to the
Government. The employees cannot be held responsible for the method of procedure adopted by two
members of the Tribunal. The appeal is allowed to the extent indicated above.
