dedol-hf/india-case-legal-rag huggingface dataset:
give  its decision on the reference. Item 18 of schedule  II
clearly empowers the tribunal to deal with cases of victimi-
zation as a result of the third strike which the  petitioner
described as illegal.  The Tribunal may be
499
wrong in the view they have taken but it seems to me this is
again  not  a question of that vital character  which  would
justify the grant of special leave under article 136.
    The next question raised by the learned counsel that the
award  of the Tribunal is based on no  evidence  whatsoever.
This  contention  requires  serious  consideration.  I  have
examined the proceedings of the Tribunal and it appears that
all'  it  did was that as required by rule 17 at  the  first
sitting  it  called upon the parties to state  their  cases.
Mr. Parwana on behalf of the employees stated their  respec-
tive cases and Mr. Ved Vyas who represented the bank  stated
the  bank's  case and after the cases had  been  stated  the
proceedings terminated and both parties addressed  arguments
and  the Tribunal proceeded to give its award.  Whether  the
charge  of victimization in individual cases was  proved  or
not  depended  on  proof of certain facts which  had  to  be
established  by evidence. The onus of proving  victimization
clearly rested on the-employees.  No evidence whatsoever was
led  on  their  behalf.  The statement of the  case  by  Mr.
Parwana was not on oath. There was no examination or  cross-
examination  of  Mr. Parwana.  No affidavit  supporting  the
facts  stated  by  Mr. Parwana was filed by him  or  by  any
employee.  Mr.  Parwana produced an abstract of  the  corre-
spondence but the original correspondence was not  produced.
The  bank disputed the facts stated by Mr. Parwana by  means
of a lengthy affidavit. It seems no reference was made  even
to this affidavit by the Tribunal. No counter affidavit  was
filed in reply to the facts stated in this 'affidavit.   The
bank wanted to call some evidence. Particular reference  was
made in respect of a scurrilous letter issued by one Bhatta-
charya  on behalf of the employees and distributed by  them,
which  it  is alleged considerably shook the credit  of  the
bank.   This opportunity was denied to it. It was  contended
before  us that the bank wanted to lead evidence on  certain
matters  and  that the opportunity to  lead it  was  denied.
There  is nothing on the record to support this  contention.
The result therefore is that the facts on the basis of which
allegations of victimization have been
64
500
made  are neither supported by an affidavit nor by any  evi-
dence and the award is based on no evidence whatsoever.  The
Act  as  well  as the rules framed under  it  contemplate  a
proper  hearing, discovery and inspection of  documents  and
production  of  evidence, etc. None of  this  procedure  was
followed  by the Tribunal.  It is difficult to see  on  what
material  the Tribunal has given its award as there is  none
existing on the present record and the respondents'  counsel
could  not  point  out to any such material.   At  one  time
during  the argument I was inclined to think  that  possibly
both  parties by agreement consented to treat the  statement
of case as evidence in the case and did not wish to  produce
any other evidence, but the affidavit filed on behalf of the
bank disputes all the facts stated by Mr. Parwana. The  only
evidence  on the record is the bank's affidavit and  if  the
facts  contained  in the affidavit are  accepted,  then  the
determination  made by the Tribunal cannot stand.  It  seems
to  me therefore that the procedure adopted by the  Tribunal
was against all principles of natural justice and the  award
is  thereby  vitiated and should be set aside.   It  happens
that when the safeguard of an appeal is not provided by  law
the tendency sometimes is to act in an arbitrary manner like
a  benevolent  despot.  Benevolent  despotism,  however,  is
foreign  to a democratic Constitution.  The members  of  the
Tribunal  seem to have thought that having heard the  state-
ment  of  the cases of the parties they could proceed  to  a
judgment on their own view of its right or wrong unaided  by
any  material.  That kind of procedure to my mind is  unwar-
ranted by the statute and is foreign to a democratic Consti-
tution.  In these circumstances it is the compelling duty of
this Court to exercise its extraordinary powers and to quash
such an award.
    The last contention raised by Bakshi Tek Chand was  that
though a Tribunal consisting of three persons was  appointed
to adjudicate on the dispute, the award has only been signed
by  two of them.  Reference in this connection was  made  to
section 16 of the Act which says that the award of a  Tribu-
nal  shall  be  in writing and shall be signed  by  all  the
members of the
501
Tribunal and that nothing in the section shall be deemed  to
prevent  any member of the Tribunal from recording a  minute
of dissent.  The provisions of the section are mandatory and
have  not been complied with.  It is common ground that  the
case  was  stated by the parties at a sitting when  all  the
members of the Tribunal were present and the arguments  were
heard  by all of them. No sitting took place  subsequent  to
this  which would have necessitated the carrying on of  pro-
ceedings  by two members of the Tribunal by a  quorum.  When
the  matter  has been heard by all the  three  members,  the
award  should have been given by all of-them. Therefore  the
award given by two of them is not the award of the  Tribunal
constituted by the Government. It is therefore vitiated  and
has to be quashed.  Reference in this connection was made to
section 8 of the Act which reads as follows :--
    "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."
    The  Tribunal was never reconstituted by the  Government
by  any notification. Under section 7 a Tribunal has  to  be
constituted in accordance with the provisions of the Act  by
the Government. The Government having constituted a Tribunal
of  three persons it had power under section 8 to  reconsti-
tute it but did not exercise that power.  The result  there-
fore is that the Tribunal as originally constituted was  not
the  Tribunal which gave the award in this reference.   Only
two  members have given the award.  It was said that one  of
the  members ceased to be available and the  Government  was
not bound to fill up that vacancy.  There is no material  on
the  record to prove whether any member  became  unavailable
and  if so, when.  But even if a member becomes  unavailable
and  the Government does not choose to fill up the  vacancy,
still  the  Government has to reconstitute the  Tribunal  by
saying that
502
two members will now constitute the Tribunal.  An  affidavit
with  two telegrams annexed was filed before  "us on  behalf
of  the respondents which disclosed that Mr.  Chandrasekhara
Aiyar who was one of the members of the Tribunal, in  Novem-
ber, 1949, was appointed a member of the Boundary Commission
in Bengal and that the other two members sent a telegram  to
the  Labour Ministry asking it to fill up the vacancy or  to
reconstitute the Tribunal. The advice given by the  Ministry
was  that they could proceed as they were and that the  Gov-
ernment  would later on, if necessary, fill up the  vacancy.
We  are not concerned whether the advice given was right  or
wrong.  But  the fact remains that the  Tribunal  was  never
reconstituted and it was not denied that  Mr. Chandrasekhara
Aiyar  is  now sitting in the same  Tribunal  without  being
again  nominated to it and the Tribunal is hearing the  same
reference under the other issues referred to it.   Moreover,
I  do not see why after having heard the reference he  could
not  give the award even if he was in Calcutta or  sign  the
award  given  by the other two members.  The idea  of  three
persons hearing a case and two of them deciding it is repug-
nant to all notions of fairness.  It may well have been that
the  opinion of the third may have influenced the other  two
or  the decision arrived at may have been  quite  different.
It so happened in this case that two members of the Tribunal
differed on an important question of law but somehow adjust-
ed  their  differences  and gave  a  unanimous  award.   The
presence  of  the third in such a situation  may  have  very
vitally affected the result.  After a good deal of thought I
feel  that  it  would be most dangerous for  this  Court  to
condone  proceedings  of  this  character.   If  exceptional
powers are not exercised even when a body legally constitut-
ed  under  the statute does not function  according  to  the
statute, then they defeat the very purpose of the  Constitu-
tion.
     Reference  in this connection may be made to the  deci-
sion  of their Lordships of the Privy Council in  Fakira  v.
King Emperor (1).  In that case section 377
(1) A.I.R. 1937 P.O. 119.
503
of  the  Code of Criminal Procedure as modified and  as  ap-
plicable to Hyderabad stood as follows :--
    "In  every  case so submitted, the confirmation  of  the
sentence  or  order passed by the Court of the  Resident  at
Hyderabad  shall,  when such Court consists of two  or  more
Judges, be made, passed and signed by at least two of them."
    In  Fakira's  case the order of  confirmation  was  only
made, passed and signed by one of them, though the Court  of
the  Resident consisted of two Judges. Their Lordships  held
that  the peremptory provisions of section 377 had not  been
complied  with  and that the sentence passed  had  not  been
validly confirmed.  The appeal was allowed and the case  was
remitted  to the Court of the Resident.  The  provisions  of
section  18  of the Industrial Disputes Act are  also  of  a
peremptory  nature.   Reference may also be made to  a  case
arising  under  the Bar Councils Act reported in  In  re  An
Advocate, Madras(1), where one member of the tribunal  under
that Act had died and had not signed the report. It was held
that  the tribunal ceased to be properly   constituted   and
that  the  report  could  not  be considered.
    For the reasons given above I would quash this award and
direct  that the Tribunal which is still functioning  should
readjudge item 18 of the reference and then submit its award
on  this point to Government. The employees cannot  be  held
responsible  for  the  method of procedure  adopted  by  two
members of the Tribunal.  Each party will have to bear their
own costs in this Court. The appeal is allowed to the extent
indicated above.
    MUKHERJEA  J.--This appeal, which has come up before  us
on  special leave, is directed against an award made by  the
All  India Industrial Tribunal, dated the 19th  of  January,
1950.   The Tribunal was constituted by the Central  Govern-
ment  under section 7 of the Industrial Disputes Act  and  a
large number of disputes
  (1) A.I.R. 1942 Mad. 267.
504
between several Banking companies and their emiployees  were
referred  to  it for adjudication.   Amongst  these  Banking
companies   were  the Bharat Bank  Limited,  the  appellants
before  us, and the disputes between them and their  employ-
ees, who are respondents in this appeal, related inter  alia
to a number of cases of retrenchment and victimization which
the   latter alleged against the former.  The Tribunal  held
its  enquiry  in Delhi in respect to the  cases  which  were
connected  with the Delhi Branch of the appellants and as  a
result of the same, made their award on 19th January,  1950,
holding that 26 persons, who were employees under the appel-
lants, were improperly dismissed by the latter and should be
reinstated.   Further  directions were given  in  the  award
regarding  the salaries and allowances that were to be  paid
to  the dismissed employees.  This award was declared to  be
binding in terms of the provisions of sections 15 and 19  of
the  Industrial  Disputes Act by the Central  Government  on
30th  of  January, 1950, and it was directed  to  remain  in
operation  for  a period of one year.  It  is  against  this
award that the present appeal has been preferred.
    On  behalf  of  the Indian Union which  appeared  as  an
intervener in this appeal, as also on behalf of the respond-
ents,  a  preliminary objection was  taken  challenging  the
competency  of the appeal.  The contention put   forward  by
Sir  Alladi Krishnaswami Aiyar, who appeared for the  inter-
vener,  in  substance,  is that article 136  of  the  Indian
Constitution,  under which special leave was prayed for  and
obtained  by the appellants in this case, does  not  contem-
plate or include within its scope an appeal against an award
of  an  Industrial Tribunal which is not  vested  with,  and
cannot exercise, judicial powers, and the decision of  which
cannot,  therefore, rank as a judicial  determination.   The
Industrial   Tribunal,  it  is said,  is  an  administrative
body  exercising  quasi-judicial functions  and  this  Court
cannot be called upon to exercise the powers of an appellate
Court  in  respect to the decision of a  tribunal  which  is
really a part of the administrative machinery of the Govern-
ment.
505
     In  reply to this objection, it has been urged  by  Sir
Tek Chand  that the Tribunal constitutedunder the Industrial
Disputes Act is really and in substance, a Court or judicial
tribunal  which is invested with the power and authority  to
exercise judicial functions; and in any event, the  language
of article 136 of the Constitution is wide enough to include
an  appeal from the award or determination of any  tribunal,
be it judicial or not.
    There  are two questions which require consideration  on
this preliminary point.  The first is, whether the award  or
decision  of  an Industrial Tribunal constituted  under  the
Industrial Disputes Act is a judicial decision in the proper
sense  of  the expression or is it the pronouncement  of  an
administrative  or  quasi-judicial body which  may  exercise
some of the functions of a Court of law but is really not so
?  The other question turns upon the construction to be  put
upon  article  136 of the Constitution particularly  on  the
meaning to be given to the words 'tribunal' and  'determina-
tion'  occurring  therein; and the question is  whether  the
language is wide enough to include an adjudication or  award
of an Industrial Tribunal.
    As regards the first question, it is to be noticed  that
owing to the intricate and complex system of Government that
exists  in a modern State and the vast expansion  of  social
legislation  of all sorts that have taken place  in  England
and  in other countries including our own, within  the  last
few decades, the so-called administrative and quasi-judicial
tribunals have come to be a permanent feature of our  social
and  political system. They function as adjudicating  bodies
in  disputes  concerning  a large number  of  economic  and.
social  affairs.  In a sense they  are  governmental  bodies
appertaining to the executive and not to the judicial branch
of the State, though in various matters they are armed  with
judicial  powers analogous to those normally carried out  by
Courts  of  law.   The question is, what are  the  tests  or
distinguishing features, if any, which distinguish an admin-
istrative tribunal from a Court of law. Once we are able  to
formulate these tests, we would be
506
in  a position to determine whether a  Tribunal  functioning
under  the Industrial Disputes Act is or is not  a  judicial
tribunal properly so called.
    Whether a particular function or activity is judicial or
not is often a difficult question to decide.  The point  was
elaborately  dealt  with by Lord Sankey  who  delivered  the
judgment  of the Privy Council in Shell Co. of Australia  v.
Federal Commissioner of Taxation (1). The question raised in
that case was whether the Board of Review, which was set  up
in 1925 under the Commonwealth Income Tax legislation, was a
Court  exercising judicial powers of the Commonwealth ?  The
High Court of Australia decided by a majority that it was an
administrative and not a judicial tribunal and this majority
judgment was affirmed in appeal by the Privy Council.   Lord
Sankey remarked in course of his judgment that "the  decided
cases  show that there are Tribunals which possess  many  of
the  trappings of a Court but which, nevertheless,  are  not
Courts  in  the strict sense of exercising  judicial  power.
Mere externals do not make a direction by an ad hoc tribunal
to  an  administrative officer, an exercise by  a  Court  of
judicial power."
    The  actual  decision in the case rested on  the  ground
that  the Board of Review could not be a judicial  tribunal,
as its orders were not conclusive for any purpose  whatsoev-
er.  The decision, it seems, has only a negative value.  The
Lord Chancellor enumerated a series of negative propositions
which stated inter alia that a tribunal is not necessarily a
Court because two or more  contending parties appear  before
it,  nor because it hears witnesses, or gives a final  deci-
sion which affects the right of the parties.  What the  real
or  positive  test  is, the Privy Council did  not  care  to
formulate,  though the judgment quoted, with approval,  cer-
tain observations of Griffith C.J. given in another  Austra-
lian  case, namely, Huddart Parker & Co.  v.  Moorehead("'),
which to some extent neutralised the effect of the  negative
tests enumerated in the judgment. The observations of  Grif-
fith C.J. are as follows :--
 (1) [1931] A.C. 276.                    (2)  8 C.L.R.  330,
at p. 357.
   507
    "I  am of opinion that the words 'judicial  power'......
mean the power which every sovereign authority must have  of
necessity  to decide controversies between its subjects,  or
between  itself and its subjcets, whether the rights  relate
to  life,  liberty or property. The exercise of  this  power
does not begin 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  may be stated that the authority to hear and  decide
on  evidence between a proposal and an opposition though  it
is  one  of the most essential of judicial  powers,  may  be
present is an administrative tribunal also.  In the majority
of  cases,  administrative bodies are also  armed  with  the
powers of a Court of Justice in summoning witnesses,  admin-
istering oaths and punishing disobedience to its order  made
for the purpose of effecting its enquiries (1).  As a matter
of fact, it is usual to find that those features which  were
at one time attached exclusively to activities carried on in
a Court of law are being extended to committees, commissions
or boards conducting enquiries under directions or  supervi-
sion  of the Government.  The presence or absence  of  these
features, therefore, does not furnish any conclusive test to
determine  whether a particular body is a judicial  body  or
not.  In the observations of Griffith C.J. quoted above, the
learned  Chief  Justice laid stress on the power to  make  a
binding and authoritative decision as the essential  element
in  the exercise of judicial power.  The exact  meaning  and
implication of these expressions were the subject matter  of
discussion in later Australian cases and it was held by  the
majority of the Judges in Rola Co. (Australia) Pty.  Limited
v. The Commonwealth (2), that t. hey do not simply mean that
if an authority is given power to decide controverted  ques-
tions  of fact and its determination is made binding on  the
parties  to the controversy, it would be sufficient to  show
that  judicial  power was entrusted to  such  authority.   A
determination,  it  was pointed out, may be binding  on  the
parties
 (1) Vide W F. O'Connor v. Waldron [1935] A,C. 67 at p,  82.
69 C.L.R. 185.
508
in the same sense as a contract is binding on them. What  is
necessary  is  that the determination by its own  force  and
without the aid or instrumentality of any other authority or
power must affect the rights and obligations of the parties;
or  in other words, the decision itself irrespective of  the
facts  decided, must create rights and  impose  obligations;
and it should be enforceable as such under the ordinary  law
of  the  land. This undoubtedly is one  of  the  fundamental
tests  which  distinguishes a judicial body from  one  which
exercises administrative or quasi-judicial functions.  Some-
times the decision or report of the administrative  tribunal
becomes  operative after it is accepted by the head  of  the
department under which the tribunal conducted its  enquiries
and  it  is  then enforced by some  sort  of  administrative
process; or it might create rights between the parties which
have  to be sued upon in the ordinary way in a Court of  law
and it is only on the basis of a judgment or decree that  is
obtained  in  such action that relief could be  had  by  the
party. The essence of judicial determination is that nothing
further  remains  to be done except the enforcement  of  the
judgment, a step which is compelled automatically by the law
of the land.
The  other fundamental test which distinguishes  a  judicial
from  a  quasi-judicial or administrative body is  that  the
former  decides  controversies according to law,  while  the
latter  is  not  bound strictly to follow the  law  for  its
decision.  The investigation of facts on evidence adduced by
the  parties  may be a common feature in both  judicial  and
quasi-judicial tribunals, but the difference between the two
lies in the fact that in a judicial proceeding the Judge has
got  to apply to the facts found, the law of the land  which
is fixed and  uniform.    The  quasi-judicial  tribunal   on
the other hand gives its decision on the differences between
the parties not in accordance with fixed rules of law but on
principles  of administrative policy or convenience or  what
appears  to  be just and proper in the  circumstances  of  a
particular case. In other words, the process employed by  an
administrative  tribunal  in coming to its decision  is  not
what is known as 'judicial
509
process'  (x).  Sir Maurice Gwyer in his  deposition  before
the Committee on Minister's Powers appointed by the  English
Parliament in 1929 stated that "a clear distinction is to be
drawn  between  judicial  and  quasijudicial  powers."   The
'judicial  power' was defined by the witness as a  power  to
decide  a question of legal right in a dispute between  par-
ties  involving either a finding of fact or the  application
of a fixed rule or principle of law or involving both.  "The
quasi-judicial  power," he defined as meaning "the power  of
giving decisions on questions of differences of an  adminis-
trative and not justiciable character which cannot be deter-
mined by reference to any fixed law or principle of law  but
are matters of administrative discretion and judgment  "(2).
In Cooper v. Wilson (3), Scott L.J. quoted with approval and
adopted  as the basis of his judgment the following  passage
from the report of the above committee:
    "A  true judicial decision presupposes an existing  dis-
pute  between  two or more parties, and then  involves  four
requisites :--(1) The presentation (not necessarily  orally)
of  their  case by the parties to the dispute;  (2)  if  the
dispute  between them is a question of fact, the  ascertain-
ment 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 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  an 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
presupposes an existing dispute between two or more  parties