dedol-hf/india-case-legal-rag huggingface dataset:
between  them is a question of law, the submission of  legal
argument  by the parties, and (4) a decision which  disposes
of  the whole matter by a finding upon the facts in  dispute
and  application  of  the law of the land to  the  facts  so
found,  including where required a ruling upon any  disputed
question of law.  A quasi-judicial decision equally  presup-
poses  an existing' dispute between two or more parties  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."
   The extent of judicial power exercised by an  ]industrial
Tribunal will be considered hereinafter in the light of  the
observations cited above.
    Reference  was made to certain passages  from  Professor
Allen's  book on Law and Order, Chapter IV, page  69,  where
mention  is  made of the kinds of  administrative  tribunals
functioning in various countries today.  Porter on  Adminis-
trative Law,  1929 Edn.,
(1) [1937] 2 K.B. 309, at p. 340.
478
page  194, was also relied upon. There can be no doubt  that
varieties of administrative tribunals and domestic tribunals
are  known  to  exist in this country as well  as  in  other
countries  of the world but the real question to  decide  in
each case is as to the extent of judicial power of the State
exercised by them.  Tribunals which do not derive  authority
from  the  sovereign power cannot fall within the  ambit  of
article 136.  The condition  precedent for bringing a tribu-
nal  within  the ambit of article 136 is that it  should  be
constituted by the State. Again a tribunal would be  outside
the ambit of article 136 if it is not invested with any part
of the judicial functions of the State but discharges purely
administrative  or  executive  duties.  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 article 136 and would be subject to  the
appellate control of this Court whenever it is found  neces-
sary to exercise that control in the interests of justice.
It  is  now convenient to consider  whether  a  tribunal
constituted  under the Industrial Disputes Act, 1947,  exer-
cises all or any one of the functions of a Court of  justice
and  whether it discharges them according to law or  whether
it can act as it likes in its deliberations and is guided by
its own notions of right and wrong.  The phrase  "industrial
dispute" has been defined in section 2 clause (k) of the Act
as follows :--
     "any  dispute or difference between employers  and  em-
ployees, or between employers and workmen, or between  work-
men and workmen, which is  connected with the employment  or
non-employment or the terms of employment or with the condi-
tions of labour, of any person."
    Such  a  dispute concerns the rights  of  employers  and
employees.  Its decision affects the terms of a contract  of
service  or the conditions of employment. Not only  may  the
pecuniary  liability of  an employer be considerably affect-
ed  by the adjudication of such dispute  but  it   may  even
result  in  the imposition of punishments on  him.   It  may
adversely
 479
affect  the employees as well.  Adjudication of such a  dis-
pute  affects valuable rights.  The dispute and  its  result
can  always be translated in terms of money. The  point  for
decision  in  the dispute usually is how much money  has  to
pass out of the pocket of the employer to the pocket of  the
employee in one form or another and to what extent the right
of freedom of contract stands modified to bring about indus-
trial peace. Power to adjudicate on such a dispute is  given
by section 7 of the statute to an Industrial Tribunal and  a
duty  is cast on it to adjudicate it in accordance with  the
provisions  o Act.  The words underlined clearly imply  that
the  dispute has to be adjudicated according to law and  not
in any other manner.  When the dispute has to be adjudicated
in  accordance  with the provisions of the Act,  it  follows
that the tribunal has to adhere to law, though that law  may
be different from the law that an ordinary Court of  justice
administers.   It  is  noteworthy that the  tribunal  is  to
consist  of experienced judicial officers and its  award  is
defined  as a determination of the dispute.  The  expression
"adjudication"  implies  that the tribunal is to  act  as  a
judge of the dispute; in other words, it sits as a Court  of
justice  and does not occupy the chair of an  administrator.
It is pertinent to point out that the tribunal is not  given
any executive or administrative powers. In section 38 of the
Act  power is given to make rules for the purpose of  giving
effect to the provisions of the Act.  Such rules can provide
in respect of matters which concern the powers and procedure
of tribunals including rules as to the summoning of witness-
es,  the  production of documents relevant to  the  subject-
matter  and as to appearance of legal practitioners in  pro-
ceedings  under  this Act.  Rule 3 of these  rules  provides
that  any  application for the reference  of  an  industrial
dispute to a tribunal shall be made in form (A) and shall be
accompanied  by a statement setting forth, inter  alia,  the
names of the parties to the dispute and the specific matters
of dispute.  It is in a sense in the nature of a plaint in a
suit.  In rule 13 power is given to administer oaths.   Rule
14 provides as follows :-
  "A tribunal may accept, admit or call  for
480
evidence  at any stage of the proceedings before it  and  in
such manner as it may think fit."
    Rule 17 provides that at its first sitting the  tribunal
is.  to call upon the parties to state their case.  In  rule
19 provision has been made for proceedings ex-parte. Rule 21
provides  that in addition to the powers conferred  by  sub-
section (3) of section 11 of the Act, a tribunal shall  have
the  same  powers as are vested in a civil Court  under  the
Code  of Civil Procedure when trying a suit,  in respect  of
the following matters, namely, (a) discovery and inspection;
(b) granting of adjournment; (c) reception of evidence taken
on  affidavit; and that the tribunal may summon and  examine
suo  motu  any  person whose evidence appears to  it  to  be
material.  It further says that the tribunal shall be deemed
to  be a civil Court within the meaning of sections 480  and
482  of the Code of Criminal Procedure, 189S. Rule  21  says
that the representatives of the parties, appearing before  a
tribunal, shall have the right of examination,  cross-exami-
nation  and re-examination and. of addressing the  Court  or
Tribunal when all evidence has been called. In rule 30 it is
provided that a, party to a reference may be represented  by
a legal practitioner with the permission of the tribunal and
subject  to such conditions as the tribunal may  impose.  In
section  11 (3) it is laid down that a tribunal  shall  have
the  same  powers as are vested in a civil Court  under  the
Code  of Civil Procedure when trying a suit, in  respect  of
the following matters, namely, (a) enforcing the  attendance
of any person and examining him on oath; (b) compelling  the
production  of documents and material objects;  (c)  issuing
commissions for the examination of witnesses; (d) in respect
of  such other matters as may be prescribed; and  every  in-
quiry or investigation by a tribunal shall be deemed to be a
judicial  proceeding within the meaning of sections 193  and
228 of the Indian Penal Code. It is difficult to conceive in
view  of these provisions that the Industrial Tribunal  per-
forms  any funCtions other than that of a  judicial  nature.
The  tribunal has certainly the first three  requisites  and
characteristics  of a Court as defined above.  It  has  cer-
tainly  a considerable element of the fourth  also  inasmuch
as.
    481
the  tribunal  cannot take any  administrative  action,  the
character  of which is determined by its own choice. It  has
to  make the adjudication in accordance with the  provisions
of the Act as laid down in section 7. It consists of persons
who are qualified to be or have been judges. It is its  duty
to  adjudicate  on a serious dispute between  employers  and
employees  as affecting their right of freedom  of  contract
and  it  can impose liabilities of a  pecuniary  nature  and
disobedience  of  its award is made punishable.  The  powers
exercisable by a tribunal of this nature were considered  in
a  judgment' of the Federal Court of India in Western  India
Automobile   Association v.  Industrial   Tribunal,   Bombay
(x),   and it was observed that such a tribunal can do  what
no Court  can,  namely, add to or alter the terms or  condi-
tions   of  the contract of service.   The  tribunal  having
been entrusted with the duty of adjudicating a dispute of  a
peculiar  character, it is for this reason that it is  armed
with  extraordinary  powers.  These  powers,   however,  are
derived  from the statute.  These are the rules of the  game
and   it   has to  decide  according to  these  rules.   The
powers conferred have the sanction of law behind it and  are
not  exercisable by reason of any discretion vested  in  the
members  of the tribunal.  The adjudication of  the  dispute
has  to be in accordance with evidence legally  adduced  and
the  parties have a right to be heard and being  represented
by a legal practitioner.  Right to examine and cross-examine
witnesses has been given to the parties and finally they can
address  the  tribunal when evidence is closed.   The  whole
procedure  adopted by the Act and the rules is  modelled  on
the  Code of Civil Procedure. In my opinion, therefore,  the
Industrial  Tribunal has all the necessary attributes  of  a
Court  of justice.  It has no other function except that  of
adjudicating  on  a dispute.  It is no doubt  true  that  by
reason of the nature of the dispute that they have to  adju-
dicate the law gives them wider powers than are possessed by
ordinary  Courts of law, but powers of such a nature do  not
affect
(1) [1949]] F.C.R. 321.
482
the question that they are exercising judicial power.  Stat-
utes like the Relief of Indebtedness Act, or the  Encumbered
Estates  Act have conferred powers on Courts which  are  not
ordinarily known to law and which affect contractual rights.
That  circumstance  does  not make them  anything  else  but
tribunals exercising judicial power of the State, though  in
a  degree.  different from the ordinary Courts  and.  to  an
extent  which  is  also different from that  enjoyed  by  an
ordinary  Court  of law.  They may rightly be  described  as
quasi-judicial  bodies because they are out of the hierarchy
of the ordinary judicial system but that circumstance cannot
affect  the  question  of their being within  the  ambit  of
article 136.
  It may also be observed that the tribunal is deemed to  be
a  civil Court for certain purposes as laid down in rule  21
of  the rules above cited and in section 11(3) of  the  Act.
As  a civil Court if it exercises any of the powers  contem-
plated by this section its decisions would become subject to
appeal  to  a District Judge and a  fortiori  this   Court's
power   under  article  136. would at once be  attracted  in
any case in respect of these matters.  Again, in Chapter  VI
of  the  Act breach of the terms of an award has  been  made
punishable by section 29 of the Act.  The result  therefore,
is that disobedience of the terms of an award is  punishable
under the Act.  That being so, a determination of the tribu-
nal  not  only affects the freedom of contract  and  imposes
pecuniary  liability  on the employer or  confers  pecuniary
benefits  on  the employees, but it  also  involves  serious
consequences  as  failure  to observe those  terms  makes  a
person liable to the penalties laid down in Chapter VI.   An
award  which  has these serious consequences can  hardly  be
said  to have been given by a tribunal which does not  exer-
cise some of the most  important judicial  functions  of the
State.
    Considerable stress was laid by Mr. Alladi on the provi-
sions of sections 15 and 19 of the Act. Section 15 enacts as
follows :---
     "(1) Where an industrial dispute has been referred to a
Tribunal for adjudication, it shall hold its
483
proceedings expeditiously and shall, as soon as  practicable
on the conclusion thereof, submit its award to the appropri-
ate Government.
    (2)  On receipt of such award,  the appropriate  Govern-
ment  shall  by  order in writing declare the  award  to  be
binding.
    Provided  that  where the appropriate  Government  is  a
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  Cen-
tral Legislature, an d shall, as soon as may be, cause to be
moved  therein  a resolution for the  consideration  of  the
award;  and the Legislative Assembly or as the case may  be,
the  Central  Legislature, may by  its  resolution  confirm,
modify or reject the award.
    (3) On the passing of a resolution under the proviso  to
sub-section  (2), unless the award is rejected thereby,  the
appropriate  Government shall11 by order in writing  declare
the award as confirmed or modified by the resolution, as the
case may be, to be binding.
    (4) Save as provided in the proviso to subsection (3) of
section  19,  an  award declared to be  binding  under  this
section shall not be called in question in any manner."
    As  regards clause (4), it was conceded rightly  that  a
law dealing with industrial disputes and enacted in the year
1947  could  not  in any way,affect the  provisions  of  the
Constitution  laid  down  in article 136.  It  was  however,
strenuously  urged  that the award of the  tribunal  had  no
binding  force by itself and unless the appropriate  Govern-
ment  made  a  declaration in writing under  clause  (2)  of
section  15, this award was a lifeless document and  had  no
sanction  behind  it and therefore it could  not  have  been
contemplated  that  if would be appealable even  by  special
leave.   In  my opinion, this contention  is  unsound.   The
provisions of clause (2) of
484
section  15 leave no discretion in the Government either  to
affirm, modify or reject the award.  It is bound to  declare
it  binding.  It has no option in the matter.  In    such  a
situation  it  is the determination by  the  tribunal   that
matters.  Without  that  determination  Government    cannot
function.  It does not possess the power either   to adjudi-
cate the dispute or to alter it in any manner    whatsoever.
That power vests in the tribunal alone.   The rights of  the
parties are really affected by the   adjudication  contained
in the award, not by the   Government's declaration which is
automatic.   It is   no doubt true that announcement of  the
award  by the   Government gives it binding force  but  that
does  not  affect the question of the appealability  of  the
determination  under article 136 of the  Constitution.   The
apposite  answer  to  this contention may be  given  in  the
language of the decision in Rex v. Electricity Commissioners
(1).  The relevant passage runs thus :--
   "It is necessary, however, to deal with what I think  was
the main objection of the Attorney-General. In this case  he
said the Commissioners come to no decision at all.  They act
merely  as  advisers.  They recommend an order  embodying  a
scheme to the Minister of Transport, who may confirm it with
or  without modifications. Similarly the Minister of  Trans-
port  comes  to  no decision. He submits the  order  to  the
Houses  of  parliament, who may approve it with  or  without
modifications.  The  Houses of Parliament may  put  anything
into the order they please, whether consistent with the  Act
of  1919,  or  not.  Until they have  approved,  nothing  is
decided,  and  in truth the whole procedure,  draft  scheme,
inquiry,  order, confirmation, approval, is only part  of  a
process  by which Parliament is expressing its will, and  at
no  stage is subject to, any control by the Courts..  It  is
unnecessary  to emphasize the constitutional  importance  of
this  contention.  Given its full effect, it means that  the
checks  and  safeguards which have been imposed  by  Act  of
Parliament,  including the freedom from  compulsory  taking,
can be removed, and new and onerous and
(1) [1924] 1 K.B. 171, at 207.
   485
inconsistent  obligations imposed without an Act of  Parlia-
ment, and by simple resolution of both Houses of Parliament.
I  do  not find it necessary to determine  whether,  on  the
proper  construction of the statute, resolutions of the  two
Houses of Parliament could have the effect claimed.  In  the
provision  that the final decision of the  Commissioners  is
not  to be operative until it has been approved by  the  two
Houses  of Parliament I find nothing inconsistent  with  the
view  that  they act judicially and within the  limits  pre-
scribed by Act of Parliament, and that the Courts have power
to keep them within those limits.  It is to be noted that it
is  the  order of the Commissioners  that  eventually  takes
effect, neither the Minister of Transport who confirms,  nor
the Houses of Parliament who approve. can under the  statute
make  an order which in respect of the matters  in  question
has any operation.  I know of no authority which compels  me
to  hold that a proceeding cannot be a  judicial  proceeding
subject to confirmation or approval, even where the approval
has to be that of the Houses of Parliament.  The authorities
are to the contrary
    The  observations,  though they relate to a  case  which
concerns the issue of a writ of prohibition and  certiorari,
have  application to the present case.  Here  no  discretion
whatsoever has been left in the Government in ordinary cases
to  either  modify  or t0 reject the  determination  of  the
tribunal.  The fact that the Government has to make a decla-
ration  after the final decision of the tribunal is  not  in
any  way inconsistent with the view that the  tribunal  acts
judicially.   It  may also be pointed out  that  within  the
statute itself a clue has been provided which shows that the
circumstance  that the award has to be declared by an  order
of Government to be binding does not affect the question  of
its appealability.  In article 136 clause (2) express provi-
sion  has been made for excepting from the ambit of  article
136  the  decisions of military courts  and  tribunals.   It
follows  that but for the exception it was  considered  that
these  would be within article 136 clause (1).  It is  quite
clear  from the various provisions of the Army Act that  the
decisions  of  military tribunals or courts are  subject  to
confirmation either by
486
the Commander-in-Chief or various other military    authori-
ties.   It  is only after such confirmation that  'that  can
operate.  It has never been considered that  fact in any way
affects the question of their appealability.
Rex  v. Minister of Health (1) also supports  this  view.
There  by  the  Housing Act, 1925, by section  40,  a  local
authority  which  had  prepared an  improvement  scheme  was
required to present a petition to the Minister praying  that
an order should be made confirming such scheme.  Sub-section
(3)  provided that the Minister after considering the  peti-
tion  may cause a local inquiry to be made and may by  order
confirm  the scheme with or without conditions or  modifica-
tions.  In sub-section (5) it was stated that the  order  of
the  Minister when made shall have effect as if  enacted  in
this  Act.  It was held be the Court of Appeal that  as  the
order  made by the Minister was made without  the  statutory
conditions having been complied with it was ultra vires  and
therefore a writ of certiorari should issue for the  purpose
of quashing it.  Reliance was placed by Scrutton L.J. on Rex
v.  Electricity  Commissioners (2).  The same.view  was  ex-
pressed  in  Minister  of Health v. The King  (3).   It  was
observed  that judicial review by prohibition or a  writ  of
certiorari  was  permissible if the Minister  of  Health  in
confirming  the order exceeded his statutory powers.  It  is
clear  therefore  that  simply because an order  has  to  be
confirmed  by a Minister or by the Government it in any  way
affects the power of judicial review.  Reference may also be
made to the observations in Smith v. The Queen (4).  At page
623  it was observed that it is a common principle in  every
case  which has in itself the character of a  judicial  pro-
ceeding that the party against whom a judgment is to operate
shall have an opportunity of being heard.  In this sense  it
can hardly be disputed that the proceeding before an  indus-
trial  Tribunal is a judicial proceeding.  In  my  judgment,
therefore, the contention raised by Mr. Alladi that this
   (1) [1939] 2 K.B. 98.                     (3) [1931] A.C.
494;
   (2) [1924] 1 K.B. 171.                    (4) 3 A.C. 245.
487
Court  cannot exercise its powers under article because  the
decision of the tribunal has no force till a declaration  is
made by the Government cannot be sustained.
As  regards section 19, it was contended that  an  award
declared  by the appropriate Government under section 15  to
be binding can only come into operation on such date as  may
be  specified  by the appropriate Government  and  can  only
remain in operation for such period not exceeding one  year,
as  may  be fixed by that Government and it  was  said  that
herein the Government had the power to state the period from
which  the award was to commence and the time for  which  it
was  to remain in force. This section does not, in my  opin-
ion, affect the question of the appealability of the  deter-
mination of the tribunal.  Government has certain  functions
to  perform in its own sphere after the award is  made.   In
certain cases it is bound to declare that award binding.  In
other  cases, when it is itself a party to the  dispute,  it
has  certain overriding powers and these  overriding  powers
are  that  if it considers that the award is not  in  public
interests it may refer it to the legislature.  The  legisla-
ture,   however, has the power to modify, accept  or  reject
the award.  These overriding powers presuppose the existence
of a valid determination by a tribunal.  If that  determina-
tion is in excess of jurisdiction or otherwise proceeds in a
manner that offends against the rules of natural justice and
is set aside by exercise of power under article 136, then no
occasion arises for exercise of governmental power under the
Act.   Given a valid award, it could not be denied that  the
Government  could exercise its powers in any manner it  con-
sidered  best and the exercise of that power is outside  the
constitution  of this Court.  In this  connection  reference
was  made  to  Moses v. Parker (1).  The  passage  on  which
emphasis was laid reads as follows :--
     "The  Court has been substituted for the  commissioners
to  report  to the governor. The difference  is  that  their
report is to be binding on him.  Probably it was
(1) [1896] A.C.
488
thought that the status and training of the judges made them
the  most proper depositaries of that power. But  that  does
not make their action a judicial action in the sense that it
can be tested and altered by appeal.  It is no more judicial
than  was the action of the commissioners and the  governor.
The Court is to be guided by equity and good conscience  and