dedol-hf/india-case-legal-rag huggingface dataset:
industrial  disputes  in accordance with the  provisions  of
this  Act.  Sub-section (2) provides that a  Tribunal  shall
consist of such number of members as the appropriate Govern-
ment thinks fit. Where the Tribunal consists of two or  more
members,  one of them shall be appointed a chairman.   There
is no  provision  in  section  7 similar to that   appearing
in  sections 5 and 6 empowering a Tribunal to  continue  its
proceedings in the absence of the chairman
421
or any of its members, provided there is a requisite quorum;
in  fact,  no  quorum has been prescribed in  the  rules  in
regard to an Industrial Tribunal at all. It is clear, there-
fore,  from  the provisions of section 7 of  the  Industrial
Disputes  Act referred to above--and this position  has  not
been  disputed by Mr. De who appeared for the  employees  of
some of the Barks-- that if a Tribunal has been  constituted
as consisting of three members as in the present case,  then
subject  to any exception that may be created by  any  other
provision  of the Act all the three members of the  Tribunal
must act together.
    On behalf of the respondents very great stress has  been
laid  upon section 8 of the Industrial Disputes Act, and  it
is  contended that in the circumstances which have  happened
in  the present case, the provision of section 8 would  fur-
nish  a  clear  authority to the two  remaining  members  to
continue as a legally constituted Tribunal during the period
that the services of Mr. Aiyar ceased to be available,  even
though  there was neither a fresh appointment in  his  place
nor  a fresh constitution of the Tribunal. Section 8  is  in
the following terms:--
    "(1)   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.
    (2)  Where  a Court or Tribunal consists of  one  person
only and his services cease to be available, the appropriate
Government  shall appoint another independent person in  his
place,  and  the proceedings shall be continued  before  the
person so appointed.
    (3)   Where the services of any member of a Board  other
than the chairman have ceased to be available, the appropri-
ate  Government  shall appoint in the  manner  specified  in
sub-section (3) of section 5 another
422
person  to  take  his place, and the  proceedings  shall  be
continued before the Board so reconstituted."
    The  section purports to provide for filling  up  vacan-
cies.   Sub-section  (2)  is not material  for  our  present
purpose.   Taking sub-sections (1) and (3) together we  find
that if the services of the chairman of a Board, a Court  or
a  Tribunal cease to be available at any time, it is  incum-
bent  upon the appropriate Government in each case  to  fill
the vacancy by the appointment of another independent person
as  chairman and the proceedings shall be  continued  before
the authorities so reconstituted and they would not have  to
be  commenced de novo. In case the services of a  member  of
either  a Court or a Tribunal cease to be available,  it  is
discretionary  with the appropriate Government to  fill  the
vacancy or not as it chooses. If it chooses to appoint a new
member in place of the old, the same provision will apply as
in  the case of appointment of a new chairman.  The  section
does  not say, at least in express terms, as to  what  would
happen if the Government does not think it proper to appoint
a  new  member. So far as a Board of  Conciliation  is  con-
cerned, a different provision is made even when the services
of  a member cease to be available. In such a  case,  re-ap-
pointment  has got to be made as provided for in  subsection
(a)  of section 5 and the reasons are obvious;  because  the
essential  thing  in a Board of Conciliation  is  the  equal
representation  of both parties to the dispute and the  par-
ties  would  be unequally represented if the  vacancy  of  a
member is not filled up.
    In  the present case one of the members of the  Tribunal
namely,  Mr. Aiyar,  was admittedly absent for a  period  of
above  three months and as he was appointed to do duties  in
another capacity,  his services could not possibly be avail-
able during the period that he was engaged elsewhere.   This
fact, it appears, was brought to the notice of the appropri-
ate Government by the other two members, but the  Government
decided  not to make any new appointment in his  place.  The
question  is, what exactly became the legal position of  the
other two members ? Could they function
423
as a Tribunal in the absence of the third member and without
the Government reconstituting the Tribunal as a Tribunal  of
two ?  The contention of the respondents is that as  section
8  of  the Industrial Disputes Act gives an  option  to  the
appropriate  Government  to fill the vacancy or not,  as  it
chooses, when the services of a member cease to be available
and as it provides for reconstitution only when a new member
is appointed by the Government, it is implicit in the provi-
sion of the section itself that in case the Government  does
not  decide to appoint a new member, the  remaining  members
would  automatically   constitute  the  Tribunal  and  would
proceed  as such. It is said that the  Industrial  Tribunals
are  really administrative bodies and as the very object  of
establishing such Tribunals is to settle industrial disputes
as  quickly and as expeditiously as possible with a view  to
secure  industrial  peace, certain amount of laxity  in  the
procedure  cannot but be allowed to these Tribunals  as  ap-
pears  from the various provisions of the Act and  it  would
defeat the very object of the enactment if the normal  rules
of  law  and procedure are made applicable to them.   It  is
suggested  further that what section 7 (1)  contemplates  is
the  constitution of a Tribunal irrespective of its  members
for  adjudication  of industrial disputes.  What  number  of
persons  the Tribunal shall consist of can be determined  by
the  Government at different times and in  different  manner
and  no question of fresh constitution of a  Tribunal  would
arise in case the number is subsequently altered.
So far as an Industrial Tribunal is concerned, section 8
(1) of the Industrial Disputes Act comes into operation when
the  services  of  the chairman of the Tribunal  or  of  any
member thereof cease to be available at any time. This  non-
availability  of services may be permanent or temporary  and
may  be occasioned by any cause or circumstance.   When  the
services of a member cease to be available, the  appropriate
Government has got to make up its mind whether it would fill
the vacancy or not; and in case it chooses to appoint a  new
member, the Tribunal must be deemed
424
to  be  reconstituted within the meaning of section  8,  the
primary  object of which is to provide that the  proceedings
shall  be continued before such reconstituted Tribunal  from
the stage at which they were left and they would not have to
be  started  afresh.  Thus it follows from the  language  of
section 8 that the reconstitution spoken of or  contemplated
by  the section is reconstitution by reason of the  appoint-
ment  of  a  new member in place of the old.   There  is  no
question so far as section 8 is concerned of  reconstitution
of the Tribunal when the Government chooses not to fill  the
vacancy.
    The point that is stressed on behalf of the  respondents
is that as section 8 does not provide for reconstitution  of
the  Tribunal when no new appointment of a member  is  made,
the  implication  must  necessarily be  that  the  remaining
members  would continue to act as a Tribunal and no  further
order  or notification by the Government is  necessary.  The
argument  seems plausible at first sight but an  examination
of the material provisions of the Act reveals the  difficul-
ties,  and  those of a formidable character, in the  way  of
accepting this contention as sound.
    As  has  been  pointed out already, there  is  a  marked
distinction  between the provisions of sections 5 and  6  of
the  Industrial  Disputes Act on the one hand and  those  of
section 7 on the other.  Sections 5 and 6 expressly  empower
a  Board of Conciliation and a Court of Enquiry to  exercise
their  functions in the absence of any of the members,  pro-
vided  the prescribed quorum is present; but such  provision
has been deliberately omitted from section 7 and nothing has
been prescribed either in the Act or in the rules in  regard
to any quorum for the members of the Tribunal. It cannot  be
argued  that no quorum has been laid down in the case  of  a
Tribunal, as it can consist of one member only. The position
of  a Court of Enquiry, it seems, is precisely the  same  so
far  as  this  point is concerned and yet there  is  a  rule
prescribing  a quorum for members of a Court. Having  regard
to  the language of section 7 which admittedly  contemplates
that the members of
425
a  Tribunal must act all together, it would, in my  opinion,
be a perfectly legitimate view to take that if the  legisla-
ture did intend to make an exception to this rule, it  would
have  done  so in clear terms instead of leaving  it  to  be
gathered   inferentially   from  the  provision  of  another
section  which itself is not couched ' in  unambiguous  lan-
guage.
    An  Industrial Tribunal can be constituted only  in  ac-
cordance with the provisions of section 7 of the  Industrial
Disputes Act and unless a  Tribunal is properly constituted,
it  cannot be  invested with jurisdiction to  adjudicate  on
industrial disputes. Under sub-section (2) of section 7, the
number  of members constituting the Tribunal has got  to  be
determined by appropriate Government and that is an integral
part  of  the Tribunal itself.  A change in  the  number  of
members of a Tribunal could be made therefore only in pursu-
ance  of the provision contained in sub-section (2) of  sec-
tion  7.  As section 8 does not lay down that  in  case  the
services  of a member of the Tribunal cease to be  available
and the Government does not choose to make a new appointment
in his place, the remaining members should continue to  form
the  Tribunal,  the constitution or 'reconstitution  of  the
remaining  members as a Tribunal should, in  my opinion,  be
made only under section 7 of the Act.
    I  am  not impressed by the argument of Mr.  De  that  a
Tribunal  is to be conceived of as an entity different  from
the  members of which it is composed  and  whatever  changes
might occur in the composition of the Tribunal, the identity
of  the Tribunal remains intact. A  distinction  undoubtedly
exists between the court and the judge who presides over  it
but if the constitution of the court requires that it is  to
be  composed  of  a certain number of  judges,  obviously  a
lesser number could not perform the functions of the court.
    Mr. De also argued that the very object of the Industri-
al  Disputes Act is to ensure a speedy and quick  determina-
tion of industrial disputes and section
426
15  of the Act expressly lays down that the  Tribunal  shall
hold  its  proceedings expeditiously and shall, as  soon  as
practicable, on the conclusion thereof, submit its award  to
the  appropriate Government. This object, it is said,  would
be  frustrated if the strict rules of ordinary law  are  ex-
tended to the proceedings of an Industrial Tribunal.
    It  is quite true that a quasi-judicial tribunal  enjoys
greater flexibility and freedom from the strict rules of law
and  procedure  than an ordinary court of law,  but  however
much  informality  and celerity might be  considered  to  be
desirable  in  regard to the proceedings  of  an  Industrial
Tribunal, it is absolutely necessary that the Tribunal  must
be  properly constituted in accordance with requirements  of
law  before it is allowed to function at all. I fail to  see
further  how  the  issuing of a  formal  notification  under
section  7  of the Act could delay the  proceedings  of  the
Tribunal or  hamper expeditious settlement of the  disputes.
Section 16 of the Industrial Disputes Act makes the  impera-
tive  provision  that the award of a Tribunal  shall  be  in
writing and shall be signed by all the members.  So long  as
there  is no change or alteration in the original  notifica-
tion which  constituted  the  Tribunal,  the expression "all
the  members" must mean and refer to all the  members  whose
names  appear in this notification and, unless all  of  them
sign  the award, it would not be a valid or operative  award
in law.
    Our  attention was drawn in course of the  arguments  to
rule  12  of the rules framed by the Central  Government  in
exercise  of its powers under section 38 of  the  Industrial
Disputes Act. This rule, it is to be noted, was deleted with
effect from 6th of December 1949. As it stood originally, it
was  worded  as follows :--
     "Where  a Tribunal consists of two or more members  the
Tribunal  may with the consent of the parties  act  notwith-
standing  any  casual vacancy  in  its number  and  no  act,
proceeding or determination of the Tribunal shall be  called
in question or invalidated by reason of any such vacancy."
427
It has been contended on behalf of the appellants that  this
rule was ultra vires of the authority which passed it. It is
not  necessary  for us for purposes of the present  case  to
discuss  this  matter.  Assuming the rule to  be  valid,  it
certainly  does  not assist the respondents in any  way,  as
there is no suggestion in this case that during the  absence
of Mr. Chandrasekhara Aiyar the proceedings continued before
the remaining two members with the consent of both  parties.
On the other hand, the provision in the rule certainly  goes
against the broad contention that the respondents wanted  to
raise  upon  the language of section 8. In  my  opinion,  as
there  was  no notification by  the  appropriate  Government
under section 7 of the Industrial Disputes Act  constituting
the two members a Tribunal under the Act during the  absence
of  Mr. Chandrasekhara Aiyar, the proceedings  before  these
two members were void and inoperative and the award made and
signed  by them only during this period must be held  to  be
void.
    I  do not think however that it should be held that  the
Tribunal was not a properly constituted authority or  lacked
jurisdiction  to  exercise its function when Mr.  Aiyar  re-
sumed  his duties on 20th of February, 1950. As I have  said
already, what is necessary for due constitution of an Indus-
trial Tribunal is a notification or order by the appropriate
Government  under section 7 of the Industrial  Disputes  Act
and  the  number and names of the members as  given  in  the
notification  form  an  essential or integral  part  of  the
Tribunal  thus  constituted. If the services of one  of  the
members cease to be available at any time as is contemplated
by section 8 and the appropriate Government does not  choose
to appoint another member in his place, one or other of  two
consequences  may  follow.  The Government  may,  by  afresh
notification under section 7, constitute a Tribunal with the
remaining members or in any other way it likes or it may not
take any steps at all and allow the original notification to
remain.   It  can certainly be assumed that  the  Government
will choose the latter alternative only
428
when  it thinks that the vacancy is only for a short  period
and  is not likely to continue long. In such  circumstances,
as I have already indicated, the true position is that   the
remaining   members  cannot function as a Tribunal  and  all
the proceedings must be held to remain in abeyance till  the
absent  member  rejoins his duties.  But I do  not  see  any
reason why there should be a fresh notification and a  fresh
constitution of the Tribunal when the absent member returns.
The  original  notification  is still  there  unaltered  and
unamended  and  not affected in any way  by  any  subsequent
notification; and by virtue of this notification alone,  the
three  members would be competent to sit as a  Tribunal  and
discharge its duties.  The fact that the services of one  of
them were not available at a time would not make the  origi-
nal  notification  null  and void. The only  effect  of  the
absence  of  a member would be that  the  remaining  members
would not be competent to continue the proceedings;but  this
disability would cease as soon as the services of the absent
member become available and a Tribunal as constituted by the
notification is ready and able to function.
    The  appellant's  contention  seems to be  that  once  a
vacancy  has  occurred,  the  Tribunal  becomes  imperfectly
constituted and a fresh constitution is necessary. I do  not
think that this position is sound.  As I have said  already,
the  non-availability  of the services of a  member  may  be
permanent  or  purely temporary and may be  due  to  various
causes. The word "vacancy" has  no  technical  meaning.   As
will    appear from a reference to the  Oxford   Dictionary,
the  word  "vacancy"  is ordinarily used in the sense of   a
"temporary   freedom   or   cessation  from  a  business  or
occupation"   If the absence of a member was  merely  tempo-
rary, the vacancy would mean nothing else but an interval or
period  during which a  particular office  remained  unoccu-
pied.   The question of a fresh appointment might  arise  if
the vacancy was actually filled up; but, as has happened  in
the  present  case, if the vacancy is not filled up  but  is
allowed to remain, it would automatically come to an end
429
as soon as the member whose absence caused the vacancy comes
back  and  rejoins the office.  It may be desirable  in  the
interests  of  the  public to issue a notice  or  make some
announcement  in regard to the resumption of duties  by  the
absent  member, but in my opinion no reconstitution  of  the
Tribunal with the self same  members is called for or neces-
sary under the provisions of the Industrial Disputes Act. It
is  pointed  out that cases may be conceived  of  where  the
non-availability  of  the  services of a member  is  due  to
death,  lunacy or some such circumstance; but in such  cases
there  could  be no question of the man's  coming  back  and
joining his office, and as I have said already under section
16  of the Industrial Disputes Act no award would  be  valid
unless all the members whose names appeared in the notifica-
tion  signed  it. This would be impossible in  the  case  of
death, lunacy or some other disablement of that character.
    It will be seen that in the Government Notification  No.
LR  60 (47) dated 20th March, 1950, it was expressly  stated
that the services of Shri N. Chandrasekhara Aiyar, Member of
the  All  India Industrial Tribunal  (Bank  Disputes),  were
temporarily placed at the disposal of the Ministry of Exter-
nal  Affairs with effect from 23rd November,  1949,  (after-
noon).  Mr. Aiyar's new duties continued till 27th  January,
1950.  As  soon as this work was over, he  was  regarded  as
coming  back  to  his office as a member of  the  All  India
Industrial Tribunal and he was allowed leave in that capaci-
ty  by  the Ministry of Labour from 28th January,  1950.  to
19th February, 1950, (vide Notification No. LR 60 (73) dated
16th  September, 1950.) By another  Government  notification
(being Notification No. LR 60 (47) dated 29th May, 1950), it
was  declared that Shri Chandrasekhara Aiyar resumed  charge
of his duties as member of the All India Industrial Tribunal
on the 20th, February, 1950, (forenoon).
    It  is  true that these notifications were  issued  much
after  the time when Mr. Aiyar actually resumed his  duties,
but  as  they are not notifications under section 7  of  the
Industrial Disputes Act, and cannot constitute
480
a condition precedent to investing the Tribunal with  juris-
diction  under the law, the delay in the actual  publication
of the notices is really immaterial. They are relevant  only
for the purpose of showing what the state of affairs  really
was.  In my opinion, therefore, the Tribunal was a  properly
constituted  authority on and from the 20th February,  1950,
and  as the award dated 31st July, 1950, was signed  by  all
the  three members appointed  under  the notification  dated
24th August, 1949, no objection is legally sustainable  that
the award was made without any jurisdiction.
    A  question  may be raised that as the  hearing  of  the
general issues before the Tribunal commenced at a time  when
Mr. Aiyar was absent and he had not the opportunity of being
present  all through the proceedings when arguments of  both
sides  were  advanced,  there has been  an  irregularity  or
illegality in the procedure which vitiates the whole  award.
A  decision  on this point would  require  investigation  of
various matters which have not been placed before us at  the
present  stage  by  the learned Counsel  appearing  for  the
appellants  Banks; and I would refrain from  expressing  any
opinion upon it.  My conclusion is that the award dated  the
31st of July is not void by reason of any lack of  jurisdic-
tion  in the Tribunal which made it.  I am, however, of  the
opinion  that  the other awards which were made  during  the
absence of Mr. Chandrasekhara Aiyar or which were not signed
by him must be held to be without jurisdiction.
                                     Awards declared void.
    Agent  for the appellants in Civil Appeals Nos, 35,  36,
37,  38, 39, 40, 41, 42, 43, 44, 45, 46 & 49:  Rajender  Na-
rain.
Agent  for the appellants in Civil Appeals Nos.  48  and
50; Ranbir Sawhney.
    Agent  for the appellant in Civil Appeal No. 47:  Ganpat
Rai.
Agent for the respondents: Naunit Lal. Agent for the  Inter-
vener P.A. Mehta.
431
PETITIONER:
SRINIVAS RAM KUMAR
        Vs.
RESPONDENT:
MAHABIR PRASAD AND OTHERS.
DATE OF JUDGMENT:
09/02/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
CITATION:
 1951 AIR  177            1951 SCR  277
 CITATOR INFO :
 R          1964 SC 136  (11)
 R          1964 SC 818  (9)
 D          1978 SC1362  (25)
ACT:
    Pleadings--Inconsistent   pleas--Plaintiff   suing   for
specific  performance  alleging  that  money  was  paid   as
price--Defendant   pleading  that  money  was  received   as
loan--Plaintiff's  case  not proved-Whether  decree  can  be
given for recovery of money as loan on defendant's plea.
HEADNOTE:
    Though the court would not grant relief to the plaintiff
on a case for which there was no foundation in the pleadings
and  which  the  other side was not called upon  or  had  no
opportunity  to meet, yet, when the alternative  case  which
the  plaintiff could have made was not only admitted by  the
defendant  in  his written statement but was  expressly  put
forward  as an answer to the claim which the plaintiff  made
in  the suit. there would be nothing improper in giving  the
plaintiff a decree upon the case which the defendant himself
makes.  In such circumstances, when no injustice can  possi-
bly  result to the defendant, it may not be proper to  drive
the plaintiff to a separate suit.
The   plaintiff brought a suit for specific  performance
of  an agreement to sell a house alleging that he  had  paid
Rs. 30,000 towards the price and had been put in  possession
in  part  performance  of the contract,  but  the  defendant
pleaded that the amount of Rs. 30,000 was received as a loan
and  the plaintiff was put in possession only to  facilitate
payment  of interest, and the court found that  the  defend-
ant's plea was true: Held, that a decree could be passed  in
favour  of  the  plaintiff for recovery of the  sum  of  Rs.
30,000  and  interest remaining due under the  agreement  of
loan pleaded by the defendant, even though the plaintiff had
not set up such a case and it was even inconsistent with the
allegations in the plaint.
    Babu  Raja  Mohan Manucha v. Babu  Manzoor  (70  I.A..1)
referred to.