TMI Blog1962 (9) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ;-owns factories at Meerut in the State of Uttar Pradesh for manufacturing sugar and straw boards. On December 13, 1955, the Company received a notice relating to demands for bonus, leave, retaining allowance etc., from the Action Committee of one of the Labour Unions of the workmen employed in the Sugar Factory: It is the case of the Company that on December 26, 1955, there was a meeting of the workmen and certain employees exhorted the workmen to resort to 'direct action and in pursuance thereof the workmen adopted a slow-down strike which resulted in great reduction in the operations of crushing sugarcane, and production of sugar. The Company thereupon served charge-sheets upon sixty-three workmen charging them individually and collectively for doing acts calculated to destroy the machinery of the factory and for deliberately adopting a policy of go-slow and refusing to attend work assigned to them at the appointed time. The Enquiry Officer who investigated the charges against the delinquent workmen, by his order dated January 9, 1958, held that all the workmen were guilty of 'sabotage and slowdown strike and were therefore liable to be dismissed. But at that tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal against the direction given by the Conciliation Officer is not maintainable because that officer exercising authority under cl. 29 of the Order promulgated in 1954 under the U. P. Industrial Disputes Act, 1947, is neither a Court' nor a 'Tribunal' within the meaning of Art. 136 of the Constitution and no appeal lies to this Court against the impugned direction. Article 136( 1) of the Constitution provides : '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 . By cl. (2) judgments, determinations, sentences and orders passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces are exempt from the operation of cl. (1). This Court is manifestly invested with jurisdiction to entertain appeals from judgments, decrees, determinations, sentences or orders in causes or matters passed by courts and tribunals except those constituted by or under any law relating to the Armed Forces. It is common ground that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed not operate to end the dispute. Determination or order must be judicial or quasi-judicial : purely administrative or executive direction is not contemplated to be made the subject-matter of appeal to this Court. The essence of the authority of this Court being judicial, this Court does not exercise administrative or executive powers i.e. character of the power conferred upon this Court, original or appellate, by its constitution being judicial, the determination or order sought to be appealed from must have the character of a judicial adjudication. The Conciliation Officer is authorised by cl. 29 to grant or withhold permission to determine the employment of a workman concerned in a pending dispute or to alter to his prejudice conditions of his service. Clause 29 severely restricts the right of the employer to terminate employment according to the terms of the contract of employment, and the right is made exercisable upon the direction of the Conciliation Officer if at the time when the right is sought to be exercised, a dispute in which the employer and the employees are concerned, is pending before the Conciliation Officer or in an Industrial Tribunal. The true character of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and if it is established that he was not influenced by any ex- traneous consideration, there is nothing further to be said about it. In a judicial proceeding, on the other hand, the process or method of application is different. The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method , vide Robson's justice and Administrative Law, p. 33. It involves a proposal and an opposition, and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice, vide R. v. London County Council(1931] 2 K. B. 215, 233.). It is not necessary that the strict rules of evidence should be followed : the procedure for investigation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at, must not be his subjective', 'Personal' or 'private' opinion. It must be something which conforms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact. Applying these tests, there is' little doubt that the Conciliation Officer in granting or refusing permission to alter the terms of employment of workmen, at the instance of the employer, has to act judicially. His decision is not made to depend upon any subjective satisfaction; he is required to investigate and ascertain facts, apply objective standards to facts found, and to declare whether the employer makes out a case for granting permission to alter the terms of employment of his employees. The U. P. Indus- trial Disputes Act and the Order framed thereunder do not lay down any specific procedure, but the duty cast upon him to decide after investigating facts by the application of objective standards involves an obligation to evolve a procedure consistent with the purpose and nature of the enquiry, which assures to the disputing parties an opportunity to present their respective cases, and to substantiate the same by evidence and argument. Therefore the direction of the Conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an inquiry into a dispute or matter brought before it and to endeavor to bring about a settlement of the same. Clause 7 prescribed the procedure to be followed by the Board in the course of the inquiry : the Board had to frame issues on points on which the parties were at variance and to endeavour to secure a settlement of the dispute. If no amicable settlement was reached, the Board investigated the dispute and recorded an award together with the reasons thereof on the issues on which the parties were at issue. The award made by the Conciliation Board was subject to appeal to the Industrial Court constituted under cl. 10 of the Order. By cl. 18 the Conciliation Board was invested with certain powers of a Civil Court under the Code of Civil Procedure, 1903, such as enforcing attendance of witnesses, compelling production of documents, inspection of any property or thing, including machinery etc. By cl. 19 provision was made for service of notice, summons, process or order issued by the Board in the manner prescribed by the Code 'of Civil Procedure, 1908. But these were the powers of the Conciliation Board, and not of the Conciliation Officer. The only statutory authority conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by cl. 23 remained with the Conciliation Officer of the area concerned irrespective of the fact whether a dispute was pending before a Board, Tribunal or an Adjudicator. This Order was superseded by a fresh Order made in 1954. The scheme of the Order made in 1954 was similar to the scheme of the Order made in 1951. Disputes could be referred under this Order to the Conciliation Board which was to consist of the Conciliation Officer appointed by the State Government and two members- one representing each of the parties to the dispute-appointed by the Conciliation Officer on the recommendation of the parties. The function of the Board was to prepare a memoratidum of a settlement, if any, reached before the Board or to report about the failure to bring about a settlement, but it had no power to make an award. By cl. 24 the Tribunal or the Adjudicator, but not the Board nor the Conciliation Officer, were vested with certain powers as were vested in the Civil Courts under the Code of Civil Procedure, 1908, such as summoning and enforcing the attendance of witnesses requiring the discovery and production of documents, issuing commissions in the examination of witnesses and inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer x x x concerned. Even if such written permission (1) was forthcoming the employer, his agent or manager might or might not discharge or dismiss the workman and the only effect of such written permission would be to remove the ban against the discharge or dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer x x x concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be, with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer x x x x x concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Ltd.([1950] S. C. R. 459) that the expression 'Tribunal as used in Art. 136 does not mean the same thing as 'Court but includes,within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of' the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income-tax and Sales-tax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are still not delegates of the judicial power of the State. Their primary function is administrative and not judicial. In deciding whether an authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of witnesses, nor is he restricted in making an enquiry to evidence which the parties may bring before him.' The Conciliation Officer is again not capable of delivering a determinative judgment or award affecting the rights and obligations of parties. He is not invested with powers similar to those of the Civil Court under the Code of Civil Procedure for eriforcing attendance of any person and examining him on oath, compelling production of documents, issuing commissions for the examination of witnesses and other matters. He is concerned in granting leave to determine whether there is a prima facie case for dismissal or discharge of an employee or for altering terms of employment, and whether the employer is actuated by unfair motives; lie has not to decide whether the proposed step of discharge or dismissal of the employee was within the rights of the employer. His order merely removes a statutory ban in certain eventualities, laid upon the common law right of an employer to dismiss, discharge or alter the terms of employment according to contract between the parties. The Conciliation Officer has undoubtedly to act judicially in dealing with an application under cl. 29, but h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly . Contravention by an employer of the provisions of s. 33 when the proceeding is pending before the Conciliation Officer or the Board does not attract s. 33-A and does not make it an industrial dispute capable of being adjudicated upon in accordance with the provisions of s. 33-A. Action taken by an employer during the pendency of conciliation proceedings contrary to s. 33, may therefore sustain a claim for adjudication, only if the dispute arising thereunder be referred by the appropriate Government to an Industrial Tribunal. For breach of s. 33 of the Industrial Disputes Act, or cl. 29 of the Order by the Governor of U. P. no penalty may be imposed by the Conciliation Officer. It is thus manifest that the Conciliation Officer does not hold the status of an industrial tribunal in exercising powers under s. 33 of the Industrial Disputes Act or cl. 29 of the U.P. Order. It must therefore be held that an appeal under Art. 136 of the Constitution to this Court is not com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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