dedol-hf/india-case-legal-rag huggingface dataset:
party to the dispute and in its opinion it would be  inexpe-
dient  on public grounds to give effect to the whole or  any
part of the award, it shall on the first available  opportu-
nity  lay the award together with the statement of its  rea-
sons  for not making a declaration as aforesaid  before  the
Legislative Assembly of the Province, or where the appropri-
ate 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 consideration of the
467
award, and the Legislative Assembly may, by its  resolution,
confirm, modify, or reject the award."
    This proviso was relied upon by the respondents to  show
that the right to appeal from the award could not have  been
contemplated  in any case.  But the Act itself makes a  dis-
tinction  between cases in which the Government is  a  party
and  those  in which the Government is not  a  party.    The
proviso  relates  to a very special type of case and  as  at
present  advised I do not wish to express any opinion as  to
whether an appeal lies to this Court or not in such a  case,
but,  in my judgment, where the Government has only  to  de-
clare the award to be binding, an appeal shall lie.
    It is necessary here to say a few words as to the  scope
of  the appeal. As was pointed out by this Court  in  Pritam
Singh  v. The State(1), the power under article 136  of  the
Constitution  being a special power is to be exercised  only
in  special  cases.  The rule so laid down is bound  to  re-
strict the scope of the appeal in practice in almost all the
cases  which  fall under article 136.  But in some  cases  a
limitation will be imposed on the scope of the appeal by the
very  nature of the case and of the tribunal from  which  an
appeal is sought to be brought, and a case under the  Indus-
trial Disputes Act seems to be an example of such a case.
Dealing  now  with the merits of the appeal,  I  am  not
prepared to hold that this is a proper case for interference
with  the  adjudication of the Tribunal. The power  of  this
Court  was invoked by the appellants on four grounds.  These
grounds have been elaborately examined by Mahajan J. and two
of  them  have been pronounced to be wholly  inadequate  for
justifying  our interference. My view with regard  to  these
two  grounds is identical with that of Mahajan J. and  I  do
not wish to add to what he has already said on the  subject.
The  remaining two grounds also are, in my  opinion,  wholly
insufficient  to justify the exercise of our  special  power
under  article 136.  One of these grounds is that the  award
of  the Tribunal is based on no evidence whatsoever.   I  do
not, however, find that this ground
 (1) [1950] S.C.R. 453.
 60
468
was urged in this form in the application for special  leave
to  appeal to this Court. All that was intended to be  urged
was  that the appellants wanted to adduce evidence but  were
not  allowed  to do so.  From the decision of  the  Tribunal
however,  it  appears that the evidence 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  re-
spondents  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 Govern-
ment 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 which shows that one of the
members was called upon to act as a member of another Tribu-
nal and the award in question was pronounced after informing
the  Government of the procedure which the Chairman and  the
remaining members intended to adopt.
  In  the  view I have taken, this appeal must fail,  and  I
would accordingly dismiss it with costs.
MAHAJAN J.--This is an appeal by special leave
from the determination of an industrial dispute by the
Industrial Tribunal appointed under Ordinance VI
of 1949.
Bharat Bank Limited, Delhi, the appellant, is a
company registered under the Indian Companies
Act.
           Act.
469
Its  employees  made certain demands and as a result  of  an
unfavourable  response  from the bank it appears  that  they
struck  work on the 9th March, 1949.  The bank in  its  turn
served  notices  on  them to resume work  and  proceeded  to
discharge  a number of them between the 19th March and  24th
March  as  they  failed to do so.   The  Central  Government
constitued  a Tribunal consisting of three persons  for  the
adjudication  of  industrial disputes in  banking  companies
under  section  7  of the Industrial Disputes  Act  (XIV  of
1947), The disputes mentioned in schedule II of the  notifi-
cation  were  referred under section 10 of the Act  to  this
Tribunal. Item 18 of this schedule reads as follows :--
"Retrenchment and victimization (Specific cases to be  cited
by employees)."
    The dispute under this item between the Bharat Bank  and
its  employees  was heard by the Tribunal at Delhi  and  its
award was made on the 19th January, 1950.  It was  published
in the Government of India Gazette dated 4th February, 1950,
and  was  declared to be binding for a period of  one  year.
The award of the Tribunal was signed by two out of its three
members.
A  preliminary  objection was raised on  behalf  of  the
Central  Government as well as on behalf of the  respondents
that  this Court had no jurisdiction to grant special  leave
to appeal against the determination of an Industrial  Tribu-
nal  inasmuch as it did not exercise the judicial powers  of
the  State and that its determination was not in the  nature
of  a judgment, decree or order of a Court so as to  be  ap-
pealable.  This being the first case in which special  leave
was  granted from the determination of an Industrial  Tribu-
nal,  it is necessary to examine the provisions of the  Con-
stitution  dealing  with  this matter and  if  possible,  to
define  the limits of the jurisdiction 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
470
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 Consti-
tution:   "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 juris-
diction 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  high-
est  Court of appeal for India prior to 10th October,  1949,
was  not  a Court of criminal appeal in the sense  in  which
this  Court has been made a Court of criminal  appeal  under
article 134.  It could only entertain appeals on the  crimi-
nal  side  in  exercise  of the  prerogative  of  the  King.
Article  135 empowers this Court to hear all  appeals  which
under  existing laws could be heard by the Federal Court  of
India.  By the Abolition of Privy Council Jurisdiction  Act,
1949,which  came into force on the 10th October,  1949,  all
the powers that were possessed by the Judicial Committee  of
the  Privy Council in regard to cases or matters arising  in
India   became  exercisable  by  the Federal Court of  India
whether those powers were exercisable by reason of statutory
authority  or under the prerogative of the King. The  powers
of  the  Judicial Committee were conferred upon  it  by  the
Judicial  Committee Act, 1844 (7 & 8 Vict., C. 69).  Appeals
lay  to  His Majesty in Council from  judgments,  sentences,
decreesor orders of any Court of justice within any  British
colony  or possession abroad. Closely following article  135
which  confers all the powers of the Judicial  Committee  on
the  Supreme Court comes article 136. The language  employed
in  this  article  is very wide and is  of  a  comprehensive
character.  Powers given
471
are of an overriding nature.  The article commences with the
words  "Notwithstanding  anything in this  Chapter."   These
words indicate that the intention of the Constitution was to
disregard  in extraordinary cases the limitations  contained
in the previous articles on this Court's power to  entertain
appeals.   These  articles dealt with the  right  of  appeal
against final decisions of High Courts within the  territory
of India. Article 136, however, overrides that qualification
and empowers this Court to grant special leave even in cases
where  the judgment has not been given by a High  Court  but
has  been given by any Court in the territory of India;   in
other words, it contemplates grant of special leave in cases
where a Court subordinate to a High Court has passed or made
any order and the situation demands that the order should be
quashed  or  reversed even without having  recourse  to  the
usual procedure provided by law in the nature of an  appeal,
etc. The word "order" in article 136 has not been  qualified
by the word "final." It is clear, therefore, that the  power
to  grant special leave under this article against an  order
of a Court could be exercised with respect to  interlocutory
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  jus-
tice."   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 "determina-
tion" 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
472
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  judicial
Court  in the Republic would have power, if  it  considered,
necessary  in the ends of justice, to grant  special  leave.
Clause (2) of article 136 excludes the jurisdiction of  this
Court  in  respect of military Courts. or Tribunal.   It  is
interesting to observe that in articles 138, 139 and 140 the
Constitution has conferred powers on Parliament for  further
enlargement of the powers of this Court.
    Two  points  arise for determination in this  case:  (1)
whether the word "tribunal" in this article has been used in
the same sense as "Court," or whether it has been used in  a
wider sense, and (2) whether the word "determination" in the
article includes within its scope the determinations made by
Industrial  Tribunals or other similarly constituted  bodies
or  whether  it has reference only to  determinations  of  a
Court  or a tribunal of a purely  judicial   character.   It
was  conceded by the learned counsel appearing for the  Cen-
tral Government, Mr. Alladi Krishnaswami Aiyar, that if  any
tribunal,  whether administrative, domestic  or  quasi-judi-
cial,  acts  in excess of its jurisdiction, then it  can  be
controlled by the High Courts under the powers conferred  on
them  by article 226 by the issue of a writ  of  certiorari.
It  was  said that if the Industrial Tribunal in  this  case
could  be proved to have trespassed beyond the limits 0  its
statutory  jurisdiction, then the remedy lies elsewhere  and
not  by a petition of special leave under article  136.  Mr.
Alladi's  contentions may be briefly summarized as  follows:
(1) The expression "tribunal -" means seat of a judge, or  a
court  of  justice. Its necessary attribute is that  it  can
give  a  final judgment between two  parties  which  carries
legal  sanction by its own force.  That the word  "tribunal"
in  juxtaposition  to  the word "court" could  only  mean  a
tribunal  'which exercised judicial functions of  the  State
and  did not include within its ambit a tribunal  which  had
quasi-judicial  or administrative powers.  (2) The kinds  of
orders against which special leave to appeal could be  given
under article 136
 473
have  to  be of the same nature as passed by a Court  ,'  in
other  words, it was said that unless there was  a  judicial
determination  of  a controversy between  two  parties,  the
order  would  not  be appealable.  That in the  case  of  an
Industrial Tribunal what gives binding force to the award is
the declaration of the government, that the spark of life to
it is given 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 deter-
mination  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 exercis-
ing  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 should not be given a  narrow  meaning
when  the  intention of the Constitution was to  confer  the
widest  power on this Court.  It was further contended  that
as  between  private  employers and employees  and  even  in
certain  cases  between  Government and  its  employees  the
decision  of the Tribunal was binding on the Government  and
Government  had no power either to affirm, modify or  reject
it. All that it was authorised to do was to announce it  and
by its declaration give it enforceability; that fact, howev-
er,  could not affect the question of appealability  of  the
determination under article 136. It was finally argued  that
powers should be exercised by this Court wherever there is a
miscarriage
474
of  justice  by a  determination  of  any tribunal and  that
if  the  intention of the Constitution by use  of  the  word
"tribunal"was in the same sense as "court," then it was  not
necessary to import it in article 136, because all tribunals
that exercise judicial functions fall within the  definition
of  the  word "court" though they may not have been  so  de-
scribed.
    After considerable thought I have reached the conclusion
that the preliminary objection should be overruled. I see no
cogent  reasons to limit the plain words of the statute  and
to  place a narrow interpretation on words of widest  ampli-
tude  used therein.  In construing the articles of the  Con-
stitution it has always to be remembered that India has been
constituted into a sovereign democratic republic in order to
ensure  justice  to all its citizens.  In other  words,  the
foundations  of this republic have been laid on the  bedrock
of justice. To safeguard these foundations so that they  may
not  be  undermined by  injustice  occurring  anywhere  this
Court has been constituted.  By article S2 of the  Constitu-
tion  the  Court is empowered to see  that  the  fundamental
rights conferred on the citizens by the Constitution are not
in  any  way  affected.  By article 136 it  has  been  given
overriding  power to grant special leave to  appeal  against
orders of courts and tribunals which go against the  princi-
ple  of  natural justice and lead to  grave  miscarriage  of
justice.  The exercise of these, powers could only have been
contemplated  in  cases which affect the  rights  of  people
living  within  the territory of India in respect  of  their
person,  property  or status. The question,  therefore,  for
consideration  is whether the jurisdiction conferred by  use
of  unambiguous phraseology 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  consti-
tuted in this country
 475
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  trap-
pings  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  "tribu-
nal"  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 because, by  whatever  name  de-
scribed, such a tribunal would fall within the definition of
the word "Court."  The word "Court" has a well-known meaning
in legislative history and practice.
    As  pointed out in Halsbury's Laws of England, the  word
"Court" originally meant the King's Palace but  subsequently
acquired the meaning of (1) a place where justice was admin-
istered, and (2) the person or persons who administer it. In
the  Indian  Evidence  Act it is defined  as  including  all
judges  and magistrates and all persons  except  arbitrators
legally authorized to take evidence.  This definition is  by
no  means exhaustive and has been framed only for  the  pur-
poses of the Act.  There can be no doubt that to be a Court,
the  person or persons who constitute it must  be  entrusted
with  judicial  functions, that is,  of  deciding  litigated
questions  according to law.  However, by agreement  between
parties arbitrators may be called upon to exercise  judicial
powers  and  to decide a dispute according to law  but  that
would  not  make the arbitrators a Court. It appears  to  me
that before a person or persons can be said to constitute  a
Court it must be held that they derive their powers from the
State  and are exercising the judicial powers of the  State.
In  R.v.  London County Council (1), Saville L.J.  gave  the
following meaning to the word "Court" or "judicial  authori-
ty" :--
 (1) [1931]2K.B. 215. 61
476
    "It  is not necessary that it should be a Court  in  the
sense  that  this Court is a Court, it is enough  if  it  is
exercising,  after hearing evidence, judicial  functions  in
the  sense  that  it has to decide  on  evidence  between  a
proposal  and an opposition; and it is not necessary to   be
strictly  a Court  if it is a tribuna which has  to   decide
rightly after hearing evidence and opposition."
     As  pointed out in picturesque language by Lord  Sankey
L.C. in Shell Co. of Australia v. Federal  Commissioner   of
Taxation(1), there are tribunals  with many of the trappings
of a Court which, nevertheless, are not Courts in the strict
sense  of  exercising judicial power.  It seems to  me  that
such tribunals though they are not full-fledged Courts,  yet
exercise  quasi-judicial functions and are within the  ambit
of  the word "tribunal" in article 136 of the  Constitution.
It  was pointed out in the above case that a tribunal is not
necessarily a Court in this strict sense because it  gives a
final  decision,  nor because it hears witnesses   oath  nor
because  two  or more contending parties  appear  before  it
between  whom it has to decide, nor because it  gives  deci-
sions 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   defi-
nitions 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(2), wherein it is  defined as follows :-
"The  words  'judicial power' as used in section  71  the
Constitution mean  the power  which every  sovereign author-
ity 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  exer-
cise of this power does not begin
[19311 A..C. 275.                (2) 8 C.L.R. 330, 357.
 477
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  was conceded that a tribunal constituted  under  the
Industrial  Disputes  Act,  1947, exercises  quasi  judicial
powers.   That phrase implies that a certain content of  the
judicial  power  of the State is vestedit and it  is  called
upon  to  exercise it.  An attempt was made  to  define  the
words "judicial" and "quasi judicial" in the case of  Cooper
v. Wilson (1).  The relevant quotation reads thus :--
"A  true judicial decision presupposes an existing  dis-
pute  between  two or more parties, and then  involves  four
requisites  :- (1) The presentation necessarily  orally)  of
their case by the parties to the dispute; (2) if the dispute
between them is a question of fact, the ascertainment of the
fact  by  means of evidence adduced by the  parties  to  the
dispute  and often with the assistance of argument by or  on
behalf  of the parties on the evidence; (3) if  the  dispute