dedol-hf/india-case-legal-rag huggingface dataset:
sekhara Aiyar was appointed a member of the Tribunal "in any
vacancy." The word used there is "resumed" suggesting there-
by  that he had gone out for the time being but had  started
the  work again. Under the circumstances and in the  absence
of any other evidence, we are unable to consider the fact of
Mr. Chandrasekhara Aiyar sitting along with the two  members
from and after the 20th February, 1950, as an appointment by
the Government in the vacancy created by his appointment  to
the Boundary Tribunal in November, 1949.
   At  one  stage it was suggested that the members  of  the
Tribunal could delegate their work to a few members only and
the  award  can  be supported in that way.  Apart  from  the
question what work could be so delegated, it was ascertained
that  the Rule permitting delegation was first published  on
3rd December, 1949, and as Mr. Chandrasekhara Aiyar had gone
to  his work on the Boundary Tribunal on 23rd  November,  no
delegation in that manner was possible. Moreover, the state-
ment  of facts nor the award of the three  persons  suggests
that there was any delegation of work by the Tribunal in the
matter of the general issues to some members only.  Nor  was
any  report  made to or considered by the full  Tribunal  as
required by the rule.
     The next question to be considered is the effect of Mr.
Chandrasekhara Aiyar sitting with the two
399
members  of  the  Tribunal after 20th  February,  1950.  The
record  shows  that the two members considered most  of  the
general issues raised in respect of the banks at many  meet-
ings. The nature and volume of the work done by them  during
this interval has been summarized in the earlier part of the
judgment.  It  is not contended that on  Mr.  Chandrasekhara
Aiyar commencing to sit again with the other two members  on
and from the 20th February what had happened in his  absence
was  re-done  or re-heard.  Mr. Chandrasekhara  Aiyar  along
with the other two members continued to work from the  point
work had proceeded up to 19th February, 1950, and the  award
which  is put before us is signed by all the three of  them,
i.e., on the footing that all the three of them were members
of  the Tribunal.  It was suggested that Mr.  Chandrasekhara
Aiyar  should  be treated as having  remained  throughout  a
member  of  the Tribunal of three and that he  resumed  work
after a temporary absence between November, 1949, and Febru-
ary, 1950. In our opinion, this position is quite unsupport-
able.  When the services of Mr. Chandrasekhara Aiyar  ceased
to  be available to the Tribunal in November, 1949, and  the
Government  accepted  the position that a  vacancy  had  oc-
curred,  Mr. Chandrasekhara Aiyar ceased to be a  member  of
the  Tribunal of three as constituted under  the  Government
notification  of June, 1949. Thereafter  Mr.  Chandrasekhara
Aiyar never became a member of the Tribunal as he was  never
appointed a member before he signed the award. No  notifica-
tion  making such an appointment under section 7 read'  with
section  8 of the Act has been even suggested to exist.   In
the circumstances, the position in law was that Mr. Chandra-
sekhara Aiyar ceased to be a member of the Tribunal of three
as  originally constituted, that no new Tribunal of two  was
legally  constituted and that, having ceased to be a  member
of the tribunal of three, Mr. Chandrasekhara Aiyar could not
resume duties as a member of the Tribunal of three without a
fresh  constitution of a Tribunal of three.  The  result  is
that all the interim awards purported to be made by Mr.  Sen
and Mr. Mazurndar as
400
well as the final awards made by the three must all be  held
to have been made without jurisdiction. It seems to us  that
the only way in which the Government could have put  matters
right  was by a notification issued in February, 1950,  con-
stituting the tribunal as a fresh Tribunal of three  members
(and not by proceeding as if a vacancy had been filled up on
20th February, 1980, under section 8) and the three  members
proceeding  with the adjudication de novo. Even if the  con-
tention  of  the respondents that Mr.  Chandrasekhara  Aiyar
continued throughout a member of the tribunal were accepted,
in  our opinion, the appellants' objection to the  jurisdic-
tion of the three persons to sign the award must be  upheld.
Section  16  which authorizes them to sign  is  preceded  by
section  15.  Unless they have complied with the  provisions
of  section  15, i.e., unless all the three have  heard  the
matter together, they have no jurisdiction to make the award
in terms of section 18 and have therefore also no  jurisdic-
tion to sign the award under section 16.  In any view of the
matter the awards are therefore without jurisdiction.
    It  was suggested that-his signature on the award  could
be  treated as surplus.  In our opinion, this  argument  re-
quires  only  to be stated to be rejected.  It  is  not  and
cannot be disputed that Mr. Chandrasekhara Aiyar took active
part in the deliberations and in the proceedings after  20th
February,  1950, and naturally discussed and influenced  the
decision  of the other two members of the Tribunal  by  such
discussions.  This is not a case where an outsider was  con-
sulted  by  the  members of a Tribunal  and  thereafter  the
members  came  to  their own independent  decision.   It  is
obvious  that  for making the award all  the  three  persons
worked together and were jointly responsible for the result-
ant award.  The argument of surplusage therefore must  fail.
In  this view of the matter, the final award put before  the
Court  is clearly without jurisdiction and  the  appellants'
contention must be upheld.
    The  final contention that the sittings in the  interval
constituted only an irregularity in the proceedings
401
cannot  again  be accepted because, in the first  place,  an
objection was raised about the sitting of the two members as
the  Tribunal. That objection, whether it was raised by  the
appellants or the other party, is immaterial. The  objection
having been overruled, no question of acquiescence or estop-
pel arises,  Nor can consent give a court jurisdiction if  a
condition which goes to the root of the jurisdiction has not
been performed or fulfilled. No acquiescence or consent  can
give a jurisdiction to a court of limited jurisdiction which
it  does  not  possess. In our opinion,  the  position  here
clearly is that the responsibility to work and decide  being
the  joint responsibility of all the three members, if  pro-
ceedings  are conducted and discussions on  several  general
issues  took place in the presence of only two, followed  by
an award made by three, the question goes to the root of the
jurisdiction of the Tribunal and is not a matter of  irregu-
larity in the conduct of those proceedings. The absence of a
condition  necessary to found the jurisdiction to  make  the
award  or give a decision deprives the award or decision  of
any  conclusive effect.  The distinction clearly is  between
the  jurisdiction  to decide matters and the  ambit  of  the
matters  to  be heard by a Tribunal having  jurisdiction  to
deal  with  the same. In the second case,  the  question  of
acquiescence  or  irregularity may be considered  and  over-
looked. When however the question is of the jurisdiction  of
the  Tribunal  to  make the award  under  the  circumstances
summarized  above,  no question of acquiescence  or  consent
can affect the decision.
It was contended that under section 8 the contingency of
the  Government not filling up a vacancy is clearly  visual-
ized.  It is also provided in the section that in the  event
of  a vacancy the Government may fill it up by appointing  a
new  man and in such a case the proceedings need  not  start
afresh.  It was argued that nothing more had happened in the
present case and therefore no question of invalidity of  the
awards  arises. We are unable to accept  these  contentions.
In the first place, when Government decides not to fill up
402
a  vacancy  its decision has to be notified.  It  is  not  a
matter of the Government's internal administration where the
officers  can  work under departmental orders.  Moreover  it
should  be noticed that when the services of a member  cease
to be available and that fact is conveyed to the rest of the
members  under  sections 5 (4) and 6 (3), the rest  have  no
right  to act as a Body at all. The wording of section 7  or
8, in our opinion, does not permit the remaining members  of
a Tribunal to have a higher right in the absence of a proper
new  notification  issued under section ? of  the  Act.   As
regards the second Contention, it should be noticed that the
Government is given the option to make an appointment when a
vacancy occurs, and section 8 provides that if a new man  is
appointed  in the vacancy the proceedings need not start  de
novo.  That however does not mean that the  Government  must
appoint  a man in every case of vacancy and the  proceedings
must  go on without commencing the same afresh.  It  appears
that  the option is left to Government having regard to  the
stage  to which the proceedings may have  reached.   Suppose
only after some preliminary work of a data finding nature is
done  a  vacancy occurs, the Government may  well  think  of
appointing  a new man as it may not be considered  necessary
to start the proceedings afresh.  On the other hand, if  the
work  has  progressed considerably the Government  may   not
think  it  just and proper to fill up a vacancy by  bringing
in  a new man, as by doing so they  will in   effect  permit
the  work  of  the Body being done in two parts,  viz.,  the
first  with  two men and the second with  three  men.  These
considerations  emphasize the importance of  the  Government
making  up its mind to fill up or not to fill up  a  vacancy
when it occurs.  It cannot keep its decision in abeyance and
at  one  stage intend to proceed on the,  footing  that  the
vacancy  is  not filled up and later on  after  considerable
work  is done by the remaining members change its  mind  and
proceed  to act on the footing that a vacancy has  continued
and fill up the same after some months.
403
    On the admitted principle that the work of the Tribunal,
which is of a quasi-judicial nature, is one of joint respon-
sibility of all its members, section 8 provides  exceptions.
The Legislature having thus fixed in that section the limits
of  the exceptions, the limits have to be strictly  observed
and it is not within the  competence either of the  Tribunal
or the Government to extend the limits of those  exceptions.
In our opinion, the incidents in respect of the sittings and
work  of this Banking Tribunal, as mentioned above,  do  not
fall  within the limits of the exceptions and therefore  the
awards must be considered as made without jurisdiction.
In our opinion, therefore, the awards made and signed by
Messrs.  Sen and Mazumdar and by all the three  persons  are
without jurisdiction and the contention of the appellants on
this issue must be accepted.
FAZL  ALI J.--The questions which this Bench is called  upon
to decide arise upon the following facts.
    By a Notification dated the 13th June, 1949, the Govern-
ment of India constituted a Tribunal for the adjudication of
industrial disputes in Banking Companies, consisting of  Mr.
K.C.  Sen (Chairman), Mr. S.P. Varma and Mr. Majumdar  (Mem-
bers).  Subsequently, Mr. Chandrasekhara Aiyar was appointed
a  member of the Tribunal in the place of Mr.  Varma,  whose
services had ceased to be available. On the 13th June, 1949,
the Government referred to the Tribunal the disputes between
a  number of Banking Companies and their employees, and  the
Tribunal consisting of the chairman and 2 members  commenced
hearing them on the 12th September, 1949. In November, 1949,
the services of Mr. Aiyar were placed at the disposal of the
Department  of External Affairs of the Government of  India,
and he was appointed a member of the Indo-Pakistan  Boundary
Disputes  Tribunal, with the result that during his  absence
which  covered' a period of nearly 3 months  beginning  from
the 23rd
404
November,  1949, and ending on the 20th February, 1950,  the
proceedings  were  continued  before the  chairman  and  the
remaining member, and certain interim awards were also  made
during this period.  Mr. Aiyar rejoined the Tribunal on  the
20th  February, 1950, and ultimately all the 3 members  made
and  signed an award on the 31st July, 1950, which was  pub-
lished  in  the Gazette of India on the 12th  August,  1950.
The main point raised in these appeals is that this award is
without  jurisdiction.  In some of the appeals, it  is  also
contended  that  some of the interim  awards,  namely  those
given  by the chairman of the Tribunal and Mr.  Majumdar  on
the 5th January, 25th January, 20th February and 22nd Febru-
ary,  1950, in the case of the Imperial Bank of  India,  the
Lloyds Bank and the Punjab National Bank, were also  without
jurisdiction.  Briefly, the argument advanced on  behalf  of
the  appellants is that the Industrial Disputes  Act,  1947,
did  not  permit either of the following  courses,  firstly,
that  2 members of the Tribunal, which originally  consisted
of  3  members, should deal with any  of  the  controversies
between the parties in connection with the disputes referred
to  the Tribunal, and secondly, that a member who  had  left
the  Tribunal in the midst of the hearing should rejoin  and
influence the decision of the other members in regard to the
matters which he had not heard.
     These contentions, however plausible they may appear at
the  first  sight, especially when we consider them  in  the
light of our notions of judicial procedure to be followed in
courts  of law, will, in my opinion, be found to be  without
much  substance, on close examination, once we realize  that
the Industrial Tribunal, though it has all the trappings  of
a  court of law, is not such a court and has to  follow  its
own  procedure which has to be determined by the  provisions
of  the industrial Disputes Act and the rules framed by  the
Government  thereunder.  The determination of the  questions
raised  before  us will depend mainly upon the  proper  con-
struction of section 8 (1)of the Act, which runs as  follows
:--
405
    "8 (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 ."
   One  of  the questions to be decided in  construing  this
section  is, as to the exact meaning of the words  "services
cease  to be available."  Ordinarily, the word "cease"  con-
veys  a  sense of permanency, and therefore  the  expression
would  certainly cover cases where the services of a  person
have ceased to be available permanently or for all time. But
that  word is also sometimes applied to "intermission  of  a
state or condition of being, doing or suffering" (see Oxford
Dictionary), and, among several instances of its being  used
in  this  narrower sense, we were referred to The  Queen  v.
Evans(1) which is a case dealing with an English statute  in
which  the  expression "cease to reside" was used so  as  to
include  a  case where the person concerned  was  away  from
England for a period and then returned there. It seems to me
that  the  words "services cease to  be  available"  include
cases where the services are not available for a defined  or
undefined period, provided that during that period they  are
completely  unavailable.   These words should, I  think,  be
read  with the marginal note of section 8,  which  indicates
that they were intended to cover every situation necessitat-
ing  the filling of a vacancy.  As we are aware,  a  vacancy
may  be   permanent  or  temporary,  and  therefore  if  the
services of a member of a Tribunal are temporarily placed at
the  disposal of  another department of the  Government  for
performing special work, such a case will be covered by  the
section.  This must necessarily be so, if the nature of  the
duties which the member is called upon to discharge is  such
as  to necessitate that particular member  severing  himself
completely from the Tribunal  during the
(1) [1896] 1 Q.B. 228.
406
period  in which he holds his new office.  I find it  diffi-
cult  to hold that the section was meant to apply only to  a
permanent vacancy, and that no-provision whatsoever was made
for  a temporary vacancy, which is by no means a  matter  of
uncommon occurrence.  It should be noted that in sections  5
and  6 of the Act, the Legislature has been careful  to  use
the  words  "vacancy  in number" which are  wide  enough  to
include cases where, though there is a vacancy, the  member-
ship does not cease.
It  is  common  ground that in the  present  case,  the
services  of Mr. Aiyar were not available to  the  Tribunal,
while  he  was  employed as a member  of  the  Indo-Pakistan
Boundary Disputes Tribunal.  It is also not disputed that at
the time his services were transferred, it was not known for
what period his new duties would keep him away from the work
of the Industrial Tribunal.  There can be no doubt therefore
that there was a vacancy, which provided an occasion for the
Government  to  exercise the discretion vested in  it  under
section 8 of the Act.
     At  this  stage it will be relevant  to  quote  certain
correspondence  which  passed between the  chairman  of  the
Tribunal  and the Government soon after Mr. Aiyar' left  the
Tribunal.   We  find that on the 28th  November,  1949,  the
chairman  sent  an express telegram to the  Labour  Ministry
stating that in the absence of Mr. Aiyar objections had been
raised to the remaining two members of the Tribunal continu-
ing  the proceedings and urging the Ministry either  to  ap-
point  a substitute or to intimate that the  Tribunal  could
proceed  with  two members during Mr.  Aiyar's  absence.  To
this, the Government sent the following reply:-
"Reference  your telegram  twenty eighth  stop  Govern-
ment  advised that rule twelve is inconsistent with  section
eight  stop rule twelve being  deleted through  notification
stop  Government advised Tribunal can  continue  proceedings
with remaining two members stop no formal order or notifica-
tion necessary stop Government may fill vacancy later date."
407
    These  two telegrams indicate that both the chairman  of
the  Tribunal and the Government took the view that  in  the
circumstances  of the case, there was a vacancy  within  the
terms  of section 8, that under that section it was open  to
the  Government  either to make an appointment to  fill  the
vacancy or not to make an appointment, and that the proceed-
ings before the Tribunal could continue even if the  vacancy
was  not  filled. This is quite clear  from  the  concluding
words (which I have underlined) of the telegram sent by  the
Government to the chairman of the Tribunal.  In my judgment,
the  view  taken  by the chairman of the  Tribunal  and  the
Government  was perfectly correct.   The  question  involved
here is twofold, namely, (1) whether section 8 applies to  a
temporary  vacancy; and (2) whether, in case the  Government
decides  not  to fill such a vacancy,  the  proceedings  can
continue  before  the chairman and the remaining  member.  I
have  already  dealt with the first point,  and  the  second
point may also be now dealt with briefly. In substance, what
section  8  provides is that if the chairman goes  out,  the
vacancy  must  be  filled, but, if a member  goes  out,  the
Government may or may not fill the vacancy.  It seems to  me
to follow from this by necessary implication, that if  there
is a member's vacancy and the Government decide not to  fill
it, the Tribunal will not become an imperfectly  constituted
Tribunal.  In other words, the proceedings can be  continued
before  the Tribunal in spite of the vacancy.  The  argument
put  forward before us on behalf on the appellants was  that
in  the event of a member's vacancy, either  the  Government
should make an appointment at once or the work of the-Tribu-
nal  should  be  suspended until an   appointment  is  made.
These   inferences however  do not appear to me to  be  war-
ranted by the words of the section, firstly because 'if  the
section  says that the Government may or may not  appoint  a
new member, how can we say that the Government must  appoint
him, and secondly because there is nothing in the section to
show  that the work of the Tribunal should remain  suspended
indefinitely in the situation with
408
which we have to deal. A reference to the corresponding Acts
in England and America will show that suspension of work  is
generally  ruled out in cases of industrial  disputes  since
they need expeditious settlement.  (See section 3 (b) of the
National  Labour Relations Act of America and section  3  of
the Industrial Courts Act, 1919, of England). The scheme  of
our  Industrial Disputes Act appears to me to be  the  same,
and I think that it will be entirely foreign to that  scheme
to  suggest  that  the proceedings of  the  Tribunal  should
remain  suspended indefinitely. The principle that the  pro-
ceedings  may continue in spite of there being a vacancy  in
number,  is expressly laid down in sections 5 and 6  of  the
Act  which govern Boards of Conciliation and Courts  of  En-
quiry, and is in my opinion recognized by necessary implica-
tion  in section 8 with reference to proceedings  before  an
Industrial  Tribunal.  It was strenuously argued  before  us
that  if the intention of the Legislature had been that  the
proceedings before the Tribunal should continue in spite  of
a  vacancy,  an express provision would have  been  made  in
section 8 in the same terms as it has been made in  sections
5 and 6. This argument however will not bear close  examina-
tion.  Sections 5 and 6 have been reproduced from the  Trade
Disputes  Act, 1929, without any verbal  change  whatsoever,
and it is quite understandable that a provision dealing with
the  subject of a prescribed quorum should  expressly  state
what would be the effect of the absence of the chairman or a
member when the quorum is complete. Section 8, on the  other
hand,  has  not  been borrowed from the old Act,  but  is  a
completely  new section in which its draftsman has used  his
own  language  and proceeded on the footing that if  it  was
possible  to convey the meaning intended to be  conveyed  in
fewer  words,  there was no necessity  for  reproducing  the
entire phraseology used in sections 5 and 6. Besides, in the
context in which the provision occurs, there is no room  for
surmising  that the intention of the framer of  the  section
might  have  been to suspend the work of the  Tribunal.  The
words "the proceedings shall be continued
409
before  the  Board,  Court or  Tribunal  so  reconstituted",
obviously refer to a situation which arises when anew chair-
man  or a new member is appointed, but they also  show  that
the  framer of the section  must have assumed that the  pro-
ceedings before the Tribunal shall continue when there is  a
vacancy  in number  and the Government decides not  to  fill
it.
The position we have now arrived at is this. There was a
vacancy of an indefinite duration and the Government  decid-
ed, as it was competent for it to decide, not to fill it for
the time being but to let the Tribunal continue the work. In
my  judgment, in such circumstances, the proceedings  before
the chairman and the remaining member cannot be said to have
been without jurisdiction.
    The further question which now arises is, "what would be
the legal effect of Mr. Aiyar rejoining the Tribunal on  the
20th  February,  1950?"  It is contended on  behalf  of  the
appellants  that  the whole award is vitiated by  Mr.  Aiyar
being  brought  into the Tribunal at a late stage,  and  the
argument  is put in the following way." The  Government  had
originally  appointed  a Tribunal consisting of  a  members.
Granting  that a Tribunal of a members can, under section  8
of the Act, become a Tribunal of 2, how can it again  become