TMI Blog1964 (12) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 under the provision of the said Rule, directing the appellant to reinstate its Welfare Officer, P. N. Sharma-respondent No. 1. At the hearing of this appeal, a preliminary objection has been raised by Mr. Goyal on behalf of respondent No. 1 that special leave should not have been granted to the appellant, because the appeal is incompetent inasmuch as respondent No. 2 against whose appellate decision the appellant purports to have preferred the present appeal is not a tribunal under Art. 136(1). If the preliminary objection fails, then it would become necessary to consider the appellant's contention that the impugned appellate order is invalid and erroneous and must be set aside. The appellant is a company with its Head Office in Bombay and it runs 14 cement factories, 2 collieries and one fire-brick works in 8 States of the Union of India. One such Cement Works is the Bhupendra Cement Works, Surajpur within the territorial limits of respondent No. 2. Under the provisions of the Factories Act, 1948 (No. 63 of 1948) (hereinafter called the Act) read with the provisions of the Rules, the appellant was required to appoint one Welfare Officer and to notify his appointment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the relevant provisions of the Act and the Rules. The Act has been passed in 1948 with the object of consolidating and amending the law regulating labour in factories. Consistently with this object and policy, the Act has made several beneficient provisions in the interests of industrial labour employed in factories to which the Act applies. Section 49 deals with the appointment of Welfare Officers. S.49(1) provides that in every, factory wherein five hundred or more workers are ordinarily employed, the occupier shall employ in the factory such number of welfare officers as may be prescribed. It is common ground that the appellant falls within the, scope of s.49(1), and so, it has been appointing welfare officers in its factories; in fact, respondent No. 1 was one of such Welfare Officers appointed by the appellant. Section 49(2) provides that the State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub-section (1). It is by virtue of the powers conferred on the State Government that respondent No. 2 has framed the Rules. The Rules were framed by respondent No. 2 in 1952 and have, been published in the Punjab Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon whom the punishment mentioned in clause (v) of sub-rule (3) is imposed may appeal to the State Government against the order of punishment within thirty days from the date of receipt of the order by him. The decision of the State Government shall be final and binding. (7) The State Government may pass such interim order as may be necessary pending the decision of appeal filed under sub-rule (5) or sub-rule (6). It would be noticed that it is under rule 6(6) that the impugned order has been passed by respondent No. 2, and the question which has first to be considered in dealing with the present appeal is whether respondent No. 2 can be said to be a tribunal within the meaning of Art. 136(1) so as to justify the appellant to bring the appellate decision of respondent No. 2 before this Court by special leave under the said Article. Art. 136(1) reads thus :- 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. Mr. Goyal contends that respondent No. 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense, they share with the courts one common characteristic: both the courts and the tribunals are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. (vide Durga Shankar Mehta v. Thakur Raghuraj Singh and Others [1955] 1 S.C.R. 267 at P. 272). They are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed and in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedure which the tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the tribunals is substantially the same, and there is no essential difference between the functions that they discharge. As in the case of courts, so in the case of tribunals, it is the State's inherent judicial power which has been transferred and by virtue of the said power, it is the State's i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the relevant decisions cited before the Court. He held that if a statute empowers in authority not being a court in the ordinary sense to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie, and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act. The second principle which he deduced was that if a statutory body has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority, and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially (p.725). Kania, C. J., on the other hand, observed that the true position was that when the law under which the authority is making a decision itself requires a judicial approach, the decision would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority decision was that it had to act judicially, and since the order of dismissal was passed without furnishing the appellant with a specific charge, it was a nullity. In dealing with the appellant's contention that the watch committee had to act judicially, Lord Reid has exhaustively considered the judicial decisions bearing on this point. He referred in particular to the following observation made by Atkin L. J. in Rex v. Electricity Commissioners, Exparte London Electricity, Joint Committee Co. (1920) Ltd. Others, [1924] 1 K.B.D. 171, 205 [1924] 1 K.B.D. 171, 205 : Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. This observation was later read by Lord Hewart, C.J. in Rex v. Legislative Committee of the Church Assembly, Exparte Havnes Smith, [1928] 1 K.B.D. 411 as meaning that before the decision of any authority could be subjected to the writ jurisdiction, it must appear that the said body should have legal authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of the writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under Art. 226 of our Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance. In Nagendra Nath Bora Another v. The Commissioner of Hills Division and Appeals, Assam, Ors., [1958] S.C.R. 1240 this Court had to consider whether the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution could be invoked against the decision of the appellate authority constituted under the Eastern Bengal and Assam Excise Act, 1910 (E. B. Assam Act 1 of 1910). The scheme of the Act was examined and it was noticed that the Act had laid down a regular hierarchy of authorities, one above the other, with the right of hearing appeals or revisions. It is true that there was no provision in the Act which required, in express terms, that reasoned orders should be recorded; but in the context of the subject-matter of the rules, it was held that it was the duty of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , raised the problem as to whether the Industrial Tribunal was a tribunal under Art. 136(1) or not. The majority decision was in favour of the view that the Industrial Tribunal is a tribunal within the meaning of Art. 136(1). Mahajan J., who delivered the principal judgment in support of the majority view on this point, held that industrial tribunals though they are not full-fledged Courts, yet exercise quasi-judicial functions and are within the ambit of the word 'tribunal' in Art. 136 of the Constitution. (p. 476). The condition precedent, said Mahajan J., for bringing a tribunal within the ambit of Art. 136 is that it should be constituted by the State. Again, a tribunal would be outside the ambit of Art. 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties (p. 478). It is in this connection that the learned Judge added that 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 Art. 136, because, according to the learned Judge, the intention of the Constitution by the use of the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after considering the representations made by the parties. Hidayatullah J., differed from the majority decision on the question as to the final order which should be passed in the said appeals. He held that there was no reason for the Central Government to have passed the impugned order, and so, he wanted the appeals to be allowed. Accordingly, he directed that the impugned order should be set aside and appeals should be allowed with costs. On the preliminary question as to whether the appeals were competent, the learned Judge agreed with the majority decision that the Central Government was a tribunal within the meaning of Art. 136(1). Construing Art. 136(1), the learned Judge observed that courts and tribunals act judicially in both senses which he had earlier discussed, and in the term Court are included the ordinary permanent tribunals and in the term tribunal are included all others, which are not so included. Among the powers of the State, said Hidayatullah J., is included the power to decide controversies between parties. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. Broadly speaking, certain special matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Court was whether an arbitrator appointed under s. 10A of the Industrial Disputes Act, 1947 (No. 14 of 1947) can be said to be a tribunal under Art. 136(1), and in rendering the answer to this question in the negative, this Court observed that apart from the importance of the trappings of a Court, the basic and essential condition which makes an authority or a body a tribunal under Art. 136, is that it should be constituted by the State and should be invested with the State's inherent judicial power. Even so, the judgment has referred to the trappings of a Court and it has been observed that sometimes a rough and ready test is applied in determining the status of an adjudicating body by enquiring whether the said body or authority is clothed with the trappings of a court. In that connection, it was added that the presence of the said trappings does not necessarily make the Tribunal a Court. The Arbitrator appointed under s. 10 A was, however, held to be not a tribunal, because his appointment was essentially based on the agreement of the parties concerned and as such, his position was somewhat analogous to that of the arbitrator appointed by the parties. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority or body can be said to be judicial power conferred on it by the State by means of a statute or statutory rule. The use of the expression judicial power in this context proceeds on the well-recognised concept of political science that along with legislative and executive powers, judicial power vests in a sovereign State. In countries where rigid separation of powers has been effected by written Constitutions, the position is very different. Take, for instance, the Australian Constitution. Section 71 of the Commonwealth of Australia Constitution Act (63 64 Viet. Chapter 12) provides that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. It is clear that the scheme of sections 71 to 80 which form part of Chapter III of the said Constitution, is that the judicial power of the State can be conferred only on courts recognised by the provisions of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Taxation, and whose members are to hold office for seven years, in a Court exercising the judicial power of the Commonwealth within the meaning of s. 71 of the Constitution of Australia. If the answer had been in the affirmative, the amending section by which the Board of Review was constituted, would have been invalid because of the provisions of s. 71 of the Australian Constitution. The Privy Council however, examined the functions of the Board and its powers and considered the scheme of the relevant provisions of the Taxation Act and came to the conclusion that the Board of Review was not a Court and stood in the same position as the Commissioner. It was observed that the orders of the Board of Review were not made conclusive for any purpose whatsoever, and that the decisions of the Board were made the equivalent of the decision of the Commissioner. In dealing with the status of the Board in the context of the requirements of S. 71 of the Australian Constitution, Lord Sankey L. C. observed that the authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons) upon any body other than a court, nor can the difficulty be avoided by designating a body, which is not in its essential character a court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a court is entirely ineffective. We have referred to these two decisions only for the purpose of emphasising the fact that the technical considerations which flow from the strict and rigid separation of powers, would not be applicable in dealing with the question about the status of respondent No. 2 by reference to Art. 136(1) of our Constitution. The use of the expression judicial power in the context, cannot be characterised as constitutionally impermissible or inappropriate, because our Constitution does not provide, as does Chapter HI of the Australian Constitution, that judicial power can be conferred only on courts properly so-called. If such a consideration was relevant and material, then it would no doubt, be inappropriate to say that certain authorities or bodies which are given the power to deal with disputes between parties and finally determine them, are tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government, and it provides that the appellate decision of the State Government in such a case would also be final and binding. The question which we have to decide in the present appeal is whether the State Government is a tribunal when it exercises its authority under R. 6(5) or R. 6(6), No rules have been made prescribing the procedure which the State Government should follow in dealing with appeals under these two sub-rules, and there is no statutory provision conferring on the State Government any specific powers which are usually associated with the trial in courts and which are intended to help the court in reaching its decisions. The requirements of procedure which is followed in courts and the possession of subsidiary powers which are given to courts to try the cases before them, are described as trappings of the courts, and so, it may be conceded that these trappings are not shown to exist in the case of the State Government which hears appeals under R. 6(5) and R. 6(6). But as we already stated, the consideration about the presence of all or some of the trappings of a court is really not decisive. The presence of some of the trappings may assist the determination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcises its appellate jurisdiction under R. 6(5) and R. 6(6) of the Rules is a Tribunal within the meaning of Art. 136(1); and so, the present appeal brought before this Court against the impugned appellate order passed by respondent No. 2, is competent. In the result, the preliminary objection raised by Mr. Goyal fails and must be rejected. That takes us to the merits of the impugned appellate order. Mr. Setalvad for the appellant contends that the impugned order is bad for two reasons. He argues that the relevant Rule which requires the concurrence of the Labour Commissioner before the management can dismiss or terminate the services of a Welfare Officer, is invalid inasmuch as it is outside the scope of the authority conferred on the State Government by s. 49(2) of the Act. He also argues that the impugned order is invalid for the reason that in the circumstances of this case, the appeal preferred by respondent No. 1 before respondent No. 2 was incompetent under r. 6(6). Let us first examine the contention about the invalidity of the Rule itself. We have noticed that S. 49(2) of the Act confers on the State Government authority to prescribe the duties, qualifications and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, and the concurrence is not given by the Labour Commissioner, the management can appeal under r. 6(5). If the concurrence is given, or if a welfare officer is dismissed without applying for concurrence, he may make an appeal under r. 6(6); but before such an appeal can be competent, it must appear that the punishment mentioned in clause (v) of subrule 3 of R. 6 has been imposed, upon him. In the present case, it is difficult to hold that any such punishment has been imposed upon respondent No. 1. All that the appellant has done in the present case is to terminate the services of respondent No. 1 by virtue of clause 4 of his terms of appointment. When respondent No. 1 was appointed a Welfare Officer by the appellant, the terms of his employment were communicated to him by a letter dated March 2, 1956. Clause 4 of this communication expressly provided that during the period of probation, the appellant could terminate respondent No. 1's services without notice, and after confirmation, with one month's notice or one month's salary in lieu of notice. The order terminating his services specifically refers to an earlier letter addressed to him on September 23, 1961. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of dismissal. It is true that the form in which the impugned order has been passed will not necessarily determine the character of the termination of respondent No. 1's services. If respondent No. 1 had proved that the impugned order amounts to his punishment, that no doubt would have been a legitimate plea on which the competence of the appeal to respondent No. 2 could have been sustained; but beyond making a vague allegation that the impugned order had been passed not bona fide, but for ulterior purpose, no attempt has been made to suggest, much less to prove, that the appellant was actuated by any improper motive in terminating his services. It does appear that when the appellant found that respondent No. 1 was not willing to go to Kymore Cement Works where he had been transferred, it deliberately chose not to punish him, but to pass a simple order of discharge. In such cases, it is no doubt open to the Court to consider the substance of the matter and not to treat the form in which the order terminating the services of an employee has been passed, conclusive. But cases may occur in which it would be safe to conclude that the order of discharge is a bona fide order of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajority decision of this Court in the case of Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. [1950] S.C.R. 459 that the expression 'Tribunal' as used in article 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. According to this test, the adjudicating body must be constituted by the State and be vested with judicial functions. In other decided cases, other learned Judges conveyed the same idea in a somewhat different form; they have said that in order to be a tribunal, the body must be invested with .... part of the judicial functions of the State , delegates of the judicial power of the State , invested with the State's inherent judicial powers , exercise judicial powers of the State. Now, the expression judicial power of the State is not to be found in our Constitution. We have borrowed this expression from the Australian law. By Art. 71 of the Australian Constitution, the judicial power of the Commonwealth is vested in the Courts therein mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evertheless, our concept of a tribunal has been somehow coloured by Lord Sankey's idea of a tribunal with the trappings of a Court. In Bharat Bank Ltdl. v. Employees of Bharat Bank Ltd [1950] S.C.R. 459, Mahajan, J. said that Art. 136 includes within its scope tribunals adorned with similar trappings as Court but strictly not coming within that definition. In Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand [19631 Supp. 1 S.C.R. 242,260, Shah, J. said that in deciding whether an authority may be regarded as a tribunal, though not a Court, the principal incident is the investiture of the 'trappings of a court'. In Engineering Mazdoor Sabha v. Hind Cycles Ltd., Bombay [19631 Supp. I S.C.R. 625 at 631,633,641, Gajendragadkar, J. (as he then was) said that in determining whether a particular body or authority is a tribunal or not, sometimes a rough and ready test is applied by enquiring whether the said body or authority is clothed with the trappings of a court , but he added that apart from the trappings of a Court, the basic and essential condition which makes an authority or a body a tribunal under Art. 136, is that it should be constituted by the State and should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Art. 136. Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. This test of a tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying this test are also tribunals. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statute or a statutory rule. An authority or body deriving its power of adjudication from an agreement of the parties, such as a private arbitrator or a tribunal acting under s. 10-A of the Industrial Disputes Act, 1947, does not satisfy the test of a tribunal within Art. 136. It matters little that such a body or authority is vested with the trappings of a Court. The Arbitration Act, 1940 vests an arbitrator with some of the trappings of a Court, so also the Industrial Disputes Act, 1947 vests an authority acting under s. 10-A of the Act with many of such trappi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin thirty days from the date of the receipt of such refusal Sub-rule (6) provides that the Welfare Officer upon whom the punishment of dismissal or termination of service is imposed may appeal to the State Government against the order of punishment within thirty days from the date of the receipt of the order by him. The decision of the State Government under both sub-rr. (5) and (6) is made final and binding. Sub-rule (7) empowers the State Government to pass such interim orders as may be necessary pending the decision of the appeal filed under sub-r. (5) or sub-r. (6). If the management imposes a punishment without making a reference to the Labour Commissioner and without obtaining his concurrence, the order of the management is a nullity and is liable to be set aside on this ground alone on an appeal by the Welfare Officer under sub-r. (6). On the other hand, if the action of the management does not amount to a punishment, an appeal under sub-r. (6) is incompetent and is liable to be dismissed on that ground. On an appeal under sub-r. (6), the dispute is whether the action of the management amounts to a punishment and if so, whether the punishment should be imposed. The disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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