dedol-hf/india-case-legal-rag huggingface dataset:
and  involves (1) and (2) but does not  necessarily  involve
(3)  and  never involves (4).  The place of (4) is  in  fact
taken  by administrative action, the character of  which  is
determined by the Minister's free choice."
(1)  See Robson's Justice and Administrative Law, p. 74.
(2)  Vide Committee of Minister's  Powers, Minutes of  Evd.,
Vol. II, pages 15-16 and also Robson's Justice and  Adminis-
trative Law, p. 319.
(3) [1937] 2 K.B. 309.
510
In our opinion these statements correctly bring out  the
distinction  between a judicial tribunal and an  administra-
tive body  which exercises  quasi-judicial functions.  These
being  the  essential  features which  distinguish  the  two
classes of tribunals, we would have to ascertain with refer-
ence to the provisions of the Industrial Disputes Act, which
class or category of tribunals an Industrial Tribunal  comes
under.
    The object of the Industrial Disputes Act, 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 Concil-
iation, whose duties mainly are to induce parties to come to
a fair and amicable settlement amongst themselves.   Second-
ly,  there  are Courts of Enquiry and though they  are'  de-
scribed as Courts, their duties end with investigation  into
the  matters referred to them and submitting reports  there-
upon  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, be
regarded as judicial tribunals.  To enable them to  investi-
gate  facts  they are however armed with certain  powers  of
compelling  attendance of witnesses and production of  docu-
ments  etc.  These provisions are to be found in section  11
of the Act. The significant thing to note is, that there  is
no  distinction  made in this respect  between  Conciliation
Boards and Courts of Enquiry on the One hand and  Industrial
Tribunals on the other. The same powers are conferred
511
the three classes of authorities without any distinction
whatsoever  and sub-section (3) of section 11  further  lays
down that any enquiry or investigation by a Board, Court  of
Enquiry  or Tribunal shall be deemed to be a  judicial  pro-
ceeding  within the meaning of sections 193 and 228  of  the
Indian  Penal Code.  This means that proceedings  before  an
Industrial  Tribunal  or for the matter of that  before  the
other  two bodies also could be deemed to 'be judicial  pro-
ceedings  only for certain specified purposes.  The  express
provision  making the proceedings judicial  proceedings  for
those  purposes only emphasises that they are  not  judicial
proceedings otherwise.
    Under section 15 (1), the Industrial Tribunal has got to
submit  its  award to the appropriate  Government  and  sub-
section (2) lays down that on receipt of such an award,  the
appropriate Government shall by order in writing declare the
award to be binding. A different provision has been made  in
regard  to  cases where the Government itself figures  as  a
party  to  the  dispute. In such cases,  if  the  Government
considers it inexpedient on public grounds to give effect to
the award either in whole or in part, it may, at the  earli-
est opportunity, lay the award for consideration before  the
Provincial  or Central Legislative Assembly as the case  may
be  and  the  Legislative Assembly may.  by  its  resolution
confirm,  modify or reject the award.  After the  resolution
is  passed, the Government is to declare the award  so  con-
firmed  or  modified to be binding  [see  sub-section  (3)].
Sub-section  (4) of section 15 expressly lays down  that  an
award  declared to be binding under any two of the  previous
sub-sections shall not be called into question in any manner
whatsoever.   The  Government is not merely to  declare  the
award binding but under section 19 (3), it has got to speci-
fy the date when the award would come into force and also to
fix  the  period during which it would remain  binding,  and
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 exercis-
ing judicial functions.  Regarding
512
the trappings or the external indicia of a Court, its
i  position is almost the same as that of the Board of  Con-
ciliation  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  commence-
ment 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.  An award in such cases is always  subject  to
the contingency of being rejected or modified by the  legis-
lature  before whom    it could be placed for  consideration
at  the option of the Government. Where a  contingency  like
this is attached to an award, it can never be regarded as  a
final  or  binding  decision which is of the  essence  of  a
judicial  proceeding.  The fact that in  cases  of  disputes
between private employers and their workmen, the  Government
has  to  accept the award as it is, makes no  difference  in
principle.  Possibly, this rule was made in consideration of
the  status  and training of the people who  constitute  the
Tribunal, but nevertheless the determination cannot  acquire
any  authority  or  force, so long      as  the  appropriate
Government does not make the declaration and fix the time of
its  operation as mentioned above.  In regard to  the  other
class of awards, where the Government is one of the  disput-
ing  parties,  the award on the face of it  is  neither  the
final  nor the authoritative pronouncement on the matter  in
dispute,  and  it  is always in the powers. of  one  of  the
disputing  parties to subject it to further scrutiny at  the
hands  of the legislature who can reject the whole award  or
effect  such  changes in it as it  considers  proper.   This
shows the real nature of the Tribunal and it is not and
   513
could  not  be suggested that the Industrial Tribunal  is  a
Tribunal which exercises judicial functions when the dispute
is only between private employers and their workmen, and  it
ceases  to be such when the employer is the  Government  it-
self.
    We would now examine the process by which an  Industrial
Tribunal comes to its decisions and I have no hesitation  in
holding that the process employed is not judicial process at
all.  In settling the disputes between the employers and the
workmen,  the  function of the Tribunal is not  confined  to
administration  of justice in accordance with law.   It  can
confer  rights and privileges on either party which it  con-
siders reasonable and proper, though they may not be  within
the terms of any existing agreement.   It has not merely  to
interpret  or  give  effect to the  contractual  rights  and
obligations  of the parties.  It can create new  rights  and
obligations  between them which it  considers essential  for
keeping industrial peace.  An industrial dispate as has been
said  on many occasions is nothing but a trial  of  strength
between  the  employers on the one hand  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  judi-
cial function.
    In describing the true position of an Industrial  Tribu-
nal  in dealing with labour disputes, this Court in  Western
India  Automobile Association v.  Industrial Tribunal,  Bom-
bay,  and  others(1)  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
  (1) [1949] F.C.R. 32] at p. 345.
514
concerns itself with interpretation of existing  obligations
and  disputes  relating to existing agreements."  The  views
expressed in  these observations were adopted in its entire-
ty  by  this Court.  Our conclusion, therefore, is  that  an
Industrial Tribunal formed under the Industrial Disputes Act
is  not a judicial tribunal and its determination is  not  a
judicial determination in the proper sense of these  expres-
sions.
    We  now  come  to the other question as  to  whether  an
appeal  could be taken to this Court against an award of  an
Industrial  Tribunal by special leave under article  136  of
the  Constitution.  Article 136 is a part of Chapter  IV  of
the Constitution which deals with the Union Judiciary.   The
different  jurisdictions  of  the Supreme  Court  have  been
prescribed  in a series of articles commencing from  article
131.   Article 131 defines the original jurisdiction of  the
Supreme  Court. Article 132 deals with its appellate  powers
in cases where substantial questions of law as to the inter-
pretation  of the Constitution are involved.    Article  133
contains  the provision relating to appeals in  civil  cases
from  judgments, decrees  and orders of the High  Courts;and
article  134 makes provisions relating to criminal  appeals.
Article  135  lays down that the Supreme  Court  shall  have
jurisdiction  and  powers  with respect to  any  matter  not
covered  by articles 133 and 134, if such  jurisdiction  and
power  could have been exercised by the Federal Court  prior
to the coming into force of the present Constitution.   Then
comes article 136 which runs as follows:
    "(1)  Notwithstanding  anything  in  this  Chapter,  the
Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court  or
tribunal in the territory of India."
    The  article is worded in the widest terms possible.  It
vests  in  the Supreme Court a plenary jurisdiction  in  the
matter  of entertaining and hearing appeals by  granting  of
special leave against any kind of judgment, decree or  order
made by any Court or tribunal in any
 515
cause  or matter and the powers could be exercised in  spite
of  and overriding the specific provisions for  appeal  con-
tained in the previous articles.  The controversy so far  as
the  present  case  is concerned mainly  centers  round  the
interpretation to be put upon two  words, namely,  "determi-
nation"  and "tribunal" used in the article.  Does the  word
"tribunal" mean a judicial tribunal only and is the  expres-
sion  "determination" restricted to what is known as  "judi-
cial determination"?
    Sir  Alladi's contention is 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,  judg-
ment, 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 origi-
nal  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 Arbitrator.  It cannot be said that it is restrict-
ed  exclusively  to  proceedings in  court.   Likewise,  the
dictionary  meaning  of  the word "tribunal"  is  'court  of
justice'  or  'seat of a Judge.'  By 'Judge'  we  mean  some
authority  by  which contested matters are  decided  between
rival  parties.  Here again, it is not possible to say  that
the expression is applicable only to a
66
516
regular  court  of law.  If the tribunal is  a  full-fledged
judicial  tribunal,  it is not disputed that  its  decisions
would be proper subject-matter of appeal under article
,136  of  the Constitution.  The question  is  whether  this
article  includes  within its scope  the  determinations  of
quasi-judicial tribunals as well.
    Our  view is that ordinarily we should not put  any  re-
stricted  interpretation upon the plain words of an  article
in the Constitution and thereby limit our powers of granting
special  leave for appeals, which the Constitution for  best
of  reasons did not choose to fetter or circumscribe in  any
way.   At  the same time, we must admit that  some  sort  of
restricted interpretation may be unavoidable in view of  the
context  in which particular words appear; and  certain  re-
strictions  may  be implicit in the very purpose  for  which
article 136 has been framed.  Article 136 empowers us in our
discretion to hear appeals from pronouncements of all  infe-
rior  courts and tribunals.  With regard to law  courts,  no
difficulty arises. As regards tribunals which are not courts
in the proper sense of the expression, it may not be proper,
in  our  opinion, to lay down a hard and fast rule  that  no
appeals could, on any account, be allowed against determina-
tions  of  such tribunals. There are numerous  varieties  of
these adjudicating bodies, whose structures vary greatly  in
character and composition and so do the powers and functions
which  they  exercise.   The best thing to do  would  be  to
examine each type of cases as it arises and if we find  that
with regard to determinations emanating from certain  tribu-
nals it is not possible for us to exercise fully and  effec-
tively the powers of an appellate Court, such determinations
must  be held to lie outside the purview of article  136  of
the Constitution.
This  disability in the matter of exercising our  powers
as  an  appellate Court might arise from the fact  that  the
rules and principles by which we ordinarily judge the sound-
ness  or otherwise of judicial decisions are not capable  of
being  applied to the determinations of certain  administra-
tive tribunals.  It might also arise from the fact that  the
law under which the
    517
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  dis-
pute  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 decision of the Tribunal but that of the  Govern-
ment  as well which is certainly not a tribunal  within  the
meaning of article 136. Assuming again that the award is set
aside  and we substitute our own determination in  place  of
the award given by the Tribunal, will our award be  enforce-
able  by  itself  or will it require a  declaration  by  the
Government  to make it binding ? If Government is  itself  a
party to the dispute, will it be open to Government to place
our decision for consideration by the Legislative  Assembly?
And will the Legislative Assembly be competent to reject  or
modify  our award ? These problems arise because under  sec-
tion  15 the award under the Act becomes binding  only  when
the  Government  declares it to be so and  if  our  judgment
takes  the place of the award of the Tribunal, all  the  in-
firmities  that attach to the award must necessarily  attach
to our judgment also.
    The  other  difficulty is no less formidable.   As  said
above,  the Tribunal is not bound to decide the disputes  by
application  of the ordinary law of the land.  A  good  deal
depends upon questions of policy
518
and public convenience.  It is not possible for us  to.judge
the propriety of the decision by a reference to some  stand-
ard or fixed rules and we think that the very policy of  the
law  prevents us from interfering with the discretion  exer-
cised by the Tribunal.
Where  the direction is committed to any body or a  tribunal
exercising  quasi-judicial functions which are not  lettered
by ordinary rules of law, the tribunal should in the absense
of any provision to the contrary be deemed to have the final
authority in the exercise of that discretion.  We cannot sit
in appeal over their decision and substitute our own discre-
tion for theirs. ,Questions, however, may and do arise where
such  quasi-judicial   body attempts to  usurp  jurisdiction
which it does not possess.  It may assume jurisdiction under
a  mistaken view of law or refuse to  exercise  jurisdiction
properly by adoption of extraneous or irrelevant  considera-
tions;or  there  may be cases where in its  proceedings  the
tribunal violates the principles of natural justice.  In all
such  cases the most proper and adequate remedy would be  by
writs  of  certiorari or prohibition and  the  Court  having
authority may direct that the decision of the body or tribu-
nal might be brought up to be quashed for lack of  jurisdic-
tion  or for mistake apparent on the face of it; and 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  tribu-
nals  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.
519
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 power to do so.
    The  result is that the preliminary  objection  succeeds
and the appeal fails and is dismissed with costs.
PATANJALI SASTRI' J.--I entirely agree with the
judgment  just  now  delivered by Mukherjea J.  and  I  have
nothing to add.
Appeal dismissed.
    Agent  for  the appellant: Ganpat Rai  for  Tanubhai  C.
Desai.
Agent for the respondents: R.R. Biswas.
Agent for the Union of India: P.A. Mehta.
519
PETITIONER:
RASHID AHMED
        Vs.
RESPONDENT:
THE MUNICIPAL BOARD, KAIRANA.THE UNION OF INDIA and THE STAT
DATE OF JUDGMENT:
19/05/1950
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
CITATION:
 1950 AIR  163            1950 SCR  566
 CITATOR INFO :
 D          1952 SC 115  (4)
 RF         1954 SC 220  (9)
 RF         1954 SC 630  (3)
R          1957 SC 882  (6)
 R          1958 SC 956  (26)
 R          1959 SC 725  (8,11)
 R          1960 SC 994  (13)
 RF         1961 SC1506  (9)
 R          1962 SC1621  (75,108)
 R          1969 SC 556  (3)
ACT:
    Constitution of India, Arts. 19 (1), 19 (6),  32--Funda-
mental  right to carry on trade--Reasonableness of  restric-
tions   imposed-U.P.  Municipalities  Act,  1916,   s.   241
(2)(a)--Municipal  byelaw prohibiting carrying on  wholesale
trade  without  permission--Absence      of  Provision   for
issuing  license to old traders--Provision permitting  Grant
of monopoly--Legality of byelaw.
HEADNOTE:
    Byelaw  No.2 of the byelaws of a municipal board,  which
came into force on the 1st January, 1950, provided that  "no
person shall establish any new market or place for wholesale
transactions  without obtaining the previous  permission  of
the  board, and no person shall sell or expose for sale  any
vegetable,        fruit, etc. at any place other  than  that
fixed  by  the board for the purpose "; and  bye-law  No.  4
permitted  the  grant of a monopoly     to a  contractor  to
deal  in  wholesale  transactions at the place  fixed  as  a
market.  In anticipation of these byelaws the monopoly right
to  do wholesale business in vegetable for three  years  was
auctioned  by  the municipal board and granted to the  high-
est  bidder And A place was also fixed as the  market  where
such  business could be carried on.  The petitioner who  had
been  carrying  on  wholesale business in  vegetables  at  a
rented shop within the municipality for two years before the
byelaws  came into force applied for a license to  carry  on
his business at his shop but this was rejected on the ground
that  there was no provision in the byelaws authorising  the
grant of any such license, and he was prosecuted for contra-
vention  of  the byelaws. He applied under Art.  32  of  the
Constitution  for the enforcements of his fundamental  right
as  a citizen to carry on his business which was  guaranteed
by Art. 19 (1) of the Constitution.
Held  (i)  that  the prohibition in  byelaw  No.2  became
absolute  in the absence of provision authorising the  issue
of  a  license, and, inasmuch as the  municipal  board  had,
further,  put it out of its power to grant a license to  the
petitioner by granting a monopoly, the restrictions  imposed
were not reasonable within
567
the  meaning  of Art. 19 (6) of the  Constitution,  and  the
byelaws  were accordingly void and  the prosecution  of  the