TMI Blog1950 (5) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w it proceeds to discharge those functions. This is necessary because 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions which are binding upon it are observed, and its powers are notrcised 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 Joint Committee Co. (1920) Ex-Parte ([1924] 1 K.B. 171.) 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 nodifications. Similarly the Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 therein a resolution for the consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 applellate 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 judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eology and by words which have a plain grammatical meaning and are of the widest amplitudeshould 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause 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(8 C.L.R. 330, 357.), 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 until some tribunal which has power to give a binding and authoritative decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers, 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. the question that they are exercising judicial power. Statutes like the Relief of Indebtedness Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .view was expressed in Minister of Health v. The King ([1924] 1 K.B. 171.). 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 (3 A.C. 245.). 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Queen in Council directly from the Supreme Court, without an intermediate appeal (which would have been attended with much expense and delay) to the Court of Error in the island, there being in each of those cases manifestly some point of law raised which deserved discussion. The cases were In Re Barnett(4 Moo. 453.), Harrison v. Scott (5 Moo. 357), and Attorney-General of Jamacia v. Manderson (6 Moo. 239.). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in imitation of the State Acts of Arbitration, and not in reliance on the Judicature Chapter of the Federal Constitution. The arbitral portion of the Act is, in our opinion, perfectly good, subject to its severability from any other portion which may be bad. 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 next case to which reference was made is Rola Co. (Australia) Proprietary Ltd. v. The Commonwealth (69 C.L.R. 185.). The question here was whether the Women s Employm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the definition quoted, all the attributes of judicial power are plainly present. I refer to what I say more in detail hereafter, that the Privy Council, in the Shell case ([1931] A.C. 275.), in which approval was given to the definition quoted, expressly held that a tribunal was not necessarily a Court because it gave decisions (even final decisions) between contending parties which affected their rights. In Huddart Parker s case ( 8 C.L.R. 330 at 383.), Isaacs 1. referred to the statement of Palles C.B. in R.v. Local Government Board for Ireland ([1902] 2 I.R. 349 at p. 373.) to erect a tribunal into a Court or jurisdiction , so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this, said the learned Chief Baron, I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depends upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal is enforceable under the Act itself by the coercive machinery provided therein. It is the terms of the award that are enforceable and not the terms of the order made by the Government. It is the breach of the terms of the award that is punishable and not any breach of Government s order. The Government itself is bound to declare the award binding and it has no option whatsoever in the matter. It is no doubt true that the tribunal has not only to decide the existing rights and liabilities of the parties and it can lay down rules of conduct for the future but it does so because by law it is authorised to do so. Its decision carries the sanction with it. The Government is bound to give effect to it and the statute enforces it by coercive machinery. In my view, therefore, this decision again has no relevancy to the present case. The third case to which reference was made is Shell Co. of Australia v. Federal Commissioner of Taxation ( [1931] A.C. 275.). That was an income-tax matter and the decision has been considered in an earlier part of this judgment. Reference was also made to Mohammad Ahmad v. Governor-General in Council (I.L.R. 1946 Lah. 16.), in which it was held that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tribunal under that Act had died and had not signed the report. It was held that the tribunal ceased to be properly constituted and that the report could not be considered. 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 Government. The employees cannot be held responsible for the method of procedure adopted by two members of the Tribunal. Each party will have to bear their own costs in this Court. The appeal is allowed to the extent indicated above. MUKHERJEA J.--This appeal, which has come up before us on special leave, is directed against an award made by the All India Industrial Tribunal, dated the 19th of January, 1950. The Tribunal was constituted by the Central Government under section 7 of the Industrial Disputes Act and a large number of disputes between several Banking companies and their emiployees were referred to it for adjudication. Amongst these Banking companies were the Bharat Bank Limited, the appellants before us, and the disputes between them and their employees, who are respondents in this appeal, related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard or decision of an Industrial Tribunal constituted under the Industrial Disputes Act is a judicial decision in the proper sense of the expression or is it the pronouncement of an administrative or quasi-judicial body which may exercise some of the functions of a Court of law but is really not so ? The other question turns upon the construction to be put upon article 136 of the Constitution particularly on the meaning to be given to the words tribunal and determination occurring therein; and the question is whether the language is wide enough to include an adjudication or award of an Industrial Tribunal. As regards the first question, it is to be noticed that owing to the intricate and complex system of Government that exists in a modern State and the vast expansion of social legislation of all sorts that have taken place in England and in other countries including our own, within the last few decades, the so-called administrative and quasi-judicial tribunals have come to be a permanent feature of our social and political system. They function as adjudicating bodies in disputes concerning a large number of economic and. social affairs. In a sense they are governmental bodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the negative tests enumerated in the judgment. The observations of Griffith C.J. are as follows :-- I am of opinion that the words judicial power ...... mean the power which every sovereign authority must have of necessity to decide controversies between its subjects, or between itself and its subjcets, 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 may be stated that the authority to hear and decide on evidence between a proposal and an opposition though it is one of the most essential of judicial powers, may be present is an administrative tribunal also. In the majority of cases, administrative bodies are also armed with the powers of a Court of Justice in summoning witnesses, administering oaths and punishing disobedience to its order made for the purpose of effecting its enquiries (1). As a matter of fact, it is usual to find that those features which were at one time attached exclusively to activities carried on in a Court of law are being extended to committees, commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom a quasi-judicial or administrative body is that the former decides controversies according to law, while the latter is not bound strictly to follow the law for its decision. The investigation of facts on evidence adduced by the parties may be a common feature in both judicial and quasi-judicial tribunals, but the difference between the two lies in the fact that in a judicial proceeding the Judge has got to apply to the facts found, the law of the land which is fixed and uniform. The quasi-judicial tribunal on the other hand gives its decision on the differences between the parties not in accordance with fixed rules of law but on principles of administrative policy or convenience or what appears to be just and proper in the circumstances of a particular case. In other words, the process employed by an administrative tribunal in coming to its decision is not what is known as judicial process (x). Sir Maurice Gwyer in his deposition before the Committee on Minister s Powers appointed by the English Parliament in 1929 stated that a clear distinction is to be drawn between judicial and quasijudicial powers. The judicial power was defined by the witness as a power to decide a q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as set out in the preamble, is to make provisions for investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing. The word settlement suggests the idea of establishing compromise between the interests of disputing parties. There are three classes of authorities provided for by the Act who are entrusted with the powers and duties of investigation and settlement of industrial disputes. First of all, there are conciliation officers or Boards of Conciliation, whose duties mainly are to induce parties to come to a fair and amicable settlement amongst themselves. Secondly, there are Courts of Enquiry and though they are described as Courts, their duties end with investigation into the matters referred to them and submitting reports thereupon to the appropriate Government. Lastly, there are Industrial Tribunals composed of independent persons who either are or had been Judges of a High Court or District Judges or are qualified for appointment as High Court Judges. It will be seen from the descriptions given above that the Board of Conciliation or Court of Enquiry constituted under the Industrial Disputes Act could, on no account, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this period shall not exceed one year. It will be seen, therefore, that there is nothing in the Industrial Disputes Act from which it could be inferred that the Industrial Tribunal really functions as a Court exercising judicial functions. Regarding the trappings or the external indicia of a Court, its i position is almost the same as that of the Board of Conciliation or Court of Enquiry and Bakshi Sir Tek Chand concedes that the latter are not judicial tribunals at all. The powers of an Industrial Tribunal are certainly wider than those of the other bodies, but it has no power to make a final pronouncement which would proprio vigore be binding on, and create rights and obligations between the parties. It is for the appropriate Government to declare the award to be binding and the part which the Government plays in such matters is not a mechanical part merely, for the award can really become operative only when the date of its commencement and the period of its duration are fixed, and it is for the Government and Government alone to. fix the same. With regard to the other class of cases, where the Government itself is one of the parties to the dispute, the position is still worse. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and the workmen s organization on the other and the Industrial Tribunal has got to arrive at some equitable arrangement for averting strikes and lock-outs which impede production of goods and the industrial development of the country. The Tribunal is not bound by the rigid rules of law. The process it employs is rather an extended form of the process of collective bargaining and is more akin to administrative than to judicial function. In describing the true position of an Industrial Tribunal in dealing with labour disputes, this Court in Western India Automobile Association v. Industrial Tribunal, Bombay, and others([1949] F.C.R. 32] at p. 345.) quoted with approval a passage from Ludwig Teller s well known work on the subject, where the learned author observes that industrial arbitration may involve the extension of ,existing agreement or the making of a new one or in general the creation of new obligations or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements. The views expressed in these observations were adopted in its entirety by this Court. Our concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that in interpreting these words we should follow the principle of ejusdent generis. Determination, he says, must be taken to be judicial determination which is of the same nature as decree, judgment, order or sentence; and tribunal associated with the word Court could not but mean judicial tribunal. Bakshi Sir Tek Chand on the other hand lays stress on the fact that the word determination was not in the original draft Constitution, and it was subsequently added, presumably with a view to widen the scope of article 136 and include within it, the decisions of administrative and quasi-judicial tribunals also. He points out that according to the definition given in section 2 (b) of the Industrial Disputes Act, award means a determination either interim or final of an industrial dispute by an Industrial Tribunal. There is undoubtedly something to be said in favour of both these views. The difficulty, in our opinion, arises from the fact that neither of these terms determination or tribunal has a fixed or definite connotation in ordinary language. The word determination means and signifies the ending of a controversy or litigation by the decision of a Judge or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied to the determinations of certain administrative tribunals. It might also arise from the fact that the law under which the tribunal functions prevents us from making any effective order which would be binding and operative of its own force without the intervention of some other power or authority; or there may be some kind of contingency attached to it. In our opinion, these difficulties do confront us in the entertaining or hearing of an appeal against the decision of an Industrial Tribunal. In the first place, as we have said above, the determination of an Industrial Tribunal does not become complete and binding unless and until it is declared to be so by the appropriate Government. Till the Government makes such declaration, neither of the parties to the dispute can have any real reason for filing an appeal. An appeal, if it lies, could be filed after the determination has been declared binding. But in such cases, is it the determination of the Tribunal merely which is challenged by way of appeal or is it the determination by the Tribunal to which has been super-added a declaration by the Government ? The decision in the appeal would undoubtedly affect not merely the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the proceedings had not terminated at that time, a writ of prohibition may also be issued for preventing the tribunal from exceeding its jurisdiction. The issuing of such writs would not be an exercise of appellate powers which means the rehearing of the case and passing of such judgment which in the opinion of the appellate Court the original tribunal should have made. The object of these writs is simply to keep the exercise of powers by these quasi-judicial tribunals within the limits of jurisdiction assigned to them by law and torestrain them from acting in excess of their authority. These principles are well settled and require no elucidation(1). Our conclusion, therefore, is that article 136 of the Constitution does not contemplate a determination given by the Industrial Tribunal. (1) Rex v. Electricity Commissioners [1924] 1 K.B. 171; Board of Education v. Rice [1911] A.C. 179. Even assuming for argument s sake that we have got jurisdiction under article 136, the exercise of which would depend upon the circumstances of each case, in view of the reasons which we have set out above, this is not an appeal which, in our opinion, should be admitted even if we have the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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