dedol-hf/india-case-legal-rag huggingface dataset:
tation  with  the High Court of the Province  in  which  the
Tribunal  has,  or is intended to have, its usual  place  of
sitting."
    8.   (1) "If the services of the chairman of a Board  or
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.
    (2)  Where  a Court or Tribunal consists of  one  person
only and his services cease to be available the  appropriate
Government  shall appoint another independent person in  his
place,  and  the proceedings shall be continued  before  the
person so appointed.
    (3)  Where the services of any member of a  Board  other
than the chairman have ceased to be available, the appropri-
ate  Government shall appoint  in  the manner  specified  in
sub-section  (3)  of section 5 another person  to  take  his
place,  and  the proceedings shall be continued  before  the
Board so reconstituted."
    15.  (1) "Where an industrial dispute has been  referred
to  a Tribunal for adjudication, it shall hold its  proceed-
ings expeditiously and shall, as soon as
388
practicable on the conclusion thereof, submit its award
to the appropriate Government.
   (2) On receipt of such award, the  appropriate
Government shall by order in writing declare   the
award to be binding:
                    *        *             *
    (4)  Save as provided in the proviso to sub-section  (3)
of  section 19, an award declared to be binding  under  this
section shah not be called in question in any manner."
   16.   "The report of a Board or Court and the award of  a
Tribunal shall be in writing and shall be signed by all  the
members of the Board, Court or Tribunal, as the case may be:
    Provided that nothing in this section shall be deemed to
prevent  any  member of the Board, Court  or  Tribunal  from
recording  a minute of dissent from  a report or award  from
any  recommendation  made therein."
  Confining  our  attention to the aspect  of  absence  of
members  at  the sittings of the different bodies  and  what
results  follow therefrom, it is clear that under section  5
(4)  when a member of a Board of Conciliation is  absent  or
there is a vacancy, the Board is permitted to act,  notwith-
standing  such  absence, provided there  is  the  prescribed
quorum.  Such quorum is fixed by the rules framed under  the
Act.  According to the proviso to this sub-section  however,
if  the appropriate Government notifies the Board  that  the
services of the chairman or any other member have ceased  to
be  available, the Board shall not act until a new  chairman
or a member, as the case may be, has been appointed.   Read-
ing  these two parts together, it is therefore clear that  a
distinction is drawn between the situation arising from  the
absence of the chairman or any of its members and a  vacancy
in  the  Board,  and the position when  the  Government  has
intimated  that  the services of a chairman or  member  have
ceased to be available.  The words  "having  the  prescribed
quorum" put a further limitation on the right of the
389
remaining members of the Board to act, when all of them  are
not  acting together. The proviso thus makes it  clear  that
when the services of a chairman or member have ceased to  be
available  and that fact has been notified to the  Board  by
the  appropriate Government, the remaining members  have  no
jurisdiction to act in the name of the Board.  Thus all  the
contingencies  of  temporary or casual absence, as  well  as
permanent vacancy, and the contingency of the chairman or  a
member's  services having ceased to  be  available are  con-
templated and provided for.  In the same way and in the same
terms,  provision is made in respect of the   Court  of  In-
quiry  in  section 6 (3).  The provisions   as  regards  the
Tribunal  are  found in section 7.  No other  section  deals
with the establishment of the   Tribunal.  The first  clause
empowers   the appropriate Government to constitute  one  or
more industrial tribunals having the  functions allotted  to
it  under the Act.  Sub clause (2) provides that a  Tribunal
shall  consist of such number of members as the  appropriate
Government  thinks  fit.   This clause therefore  authorizes
the  appropriate  Government to fix the  number  of  members
which  will constitute the Tribunal. Sub-clause (3) and  the
proviso deal  with  the  qualifications of individuals to be
members  with which we are not concerned.  Although in  this
section there is no provision like sections 5 (1) and 6  (1)
requiring a notification of the constitution of the Tribunal
in the official Gazette, the deficiency is made up by rule 5
of  the Industrial Disputes Rules; 1949, framed by the  Gov-
ernment under section 38 of the Act.  The rule provides that
the appointment of a Board, Court or Tribunal "together with
the  names of the persons constituting the Board,  Court  or
Tribunal' shall be notified in the official Gazette.  It  is
therefore obligatory on the appropriate Government to notify
the  composition of the Tribunal and also the names  of  the
persons  constituting  the same.  In respect of  a  Tribunal
which  is entrusted with the work of adjudicating upon  dis-
putes  between employers and employees which have  not  been
settled otherwise, this provision
390
s  absolutely  essential.   It cannot be left  in  doubt  to
the  employers  or the employees as to who are  the  persons
authorized  to adjudicate upon their disputes. This is  also
in  accordance with notifications of appointments of  public
servants  discharging judicial or  quasijudicial  functions.
The  important  thing therefore to note is that  the  number
forming the Tribunal and the hames of the members have  both
to  be notified in the official Gazette for the  proper  and
valid constitution of the Tribunal.
    It is significant that there is no provision correspond-
ing  to section 5 (4) or 6 (3) in section 7.  Section 15  of
the  Act provides that when an industrial dispute  has  been
referred  to a Tribunal for adjudication, it shall hold  its
proceedings expeditiously and as soon as practicable and  at
the  conclusion thereof submit its award to the  appropriate
Government.  It is thus clear and indeed it is not  disputed
that the tribunal as body should sit together and the  award
has  to be he result of the joint deliberations of all  mem-
bers of he Tribunal acting in a joint capacity.  Section  16
requires  that  all members of the Tribunal  shall  sign  he
award.   This  again  emphasizes that the  function  of  the
Tribunal  is joint and it is not open to any member  to  re-
frain from signing the award.  If the award is not signed by
all  members it will be invalid is it will not be the  award
of the Tribunal.
    In the light of the provisions of section 7 the question
arising  for  consideration  is, what was the  duty  of  the
Government  when the services of Mr.  Chandrashekhara  Aiyar
ceased to be available. The two telegrams exchanged  between
Mr. Sen and the Government show that the Government took the
view  that a vacancy had occurred and they did not think  of
filling it up at the time.  In the first place, on the  true
construction  of the Act, was it not obligatory on the  Gov-
ernment  to  notify to the contesting parties  that  it  had
decided  not to fill up the vacancy ? Is it open to them  to
leave the parties in doubt in respect of a Tribunal entrust-
ed  with the work of adjudicating upon very  important  dis-
putes between parties ? In our opinion, the whole
391
scheme  of the Act leads to the conclusion that the  Govern-
ment  must notify its decision as to what it desired to  do,
i.e., whether it intended to fill up the vacancy or not  and
thereupon  notify what members were going to constitute  the
Tribunal.  We are led to that conclusion because a  Tribunal
of  three consisting of Mr. Sen, Mr. Mazumdar and Mr.  Chan-
drasekhara Aiyar is a different tribunal from one consisting
of two, viz., of Mr. Sen and Mr. Mazumdar only.
    In  this setting, it is next necessary to  consider  the
words  of  section 8 on which strong reliance is  placed  on
behalf  of the respondents.  The marginal note of that  sec-
tion is "filling of vacancies ".  The section deals with the
Board,  the  Court and the Tribunal in its  clauses.   Under
sub-section  (1), the Legislature clearly contemplates  that
when  the services of a member cease to be available at  any
time  there  will arise a vacancy.  This  sub-section  deals
with the situation in three stages.  The first question  is,
have  the services of a member (and this includes,  for  the
present discussion,. a chairman)ceased to be available ?  If
so,  the vacancy having thus arisen, the next  question  is,
what  can  be done by the appropriate Government  ?  If  the
vacancy  is filled up by making the appointment,  the  final
question  is,  how the proceedings shall go  on  before  the
Board, Court or Tribunal so reconstituted ? It was argued on
behalf  of the respondents that it was for  the  appropriate
Government  alone  to pronounce whether the  services  of  a
member  had ceased to be available at any time and that  was
not a matter for the decision of the Court.  In our opinion,
what is left to the option of the Government is, in case  of
the services of a member ceasing to be available, to appoint
or  not to appoint.  Those stages having passed, the  appro-
priate Government, under the section, is obliged to  appoint
another person to fill the vacancy, if the vacancy is creat-
ed in respect of a chairman. In respect of the vacancy of  a
member's post, the Government is given the option to appoint
or  not to appoint another person.  The concluding words  of
the  sub-section "so reconstituted" clearly relate  only  to
the contingency of
392
the Government making the appointment of another independent
person  in  the vacancy.  The concluding part of  that  sub-
section  provides  for the continuance  of  the  proceedings
before  the body so reconstituted. Subsection (2) also  pro-
vides  that where a court or tribunal consists only  of  one
person and his services have ceased to be available, on  the
appointment  of another independent person  the  proceedings
shall  be  continued before the person so appointed  and  it
will  not  be necessary to start the  proceedings  from  the
beginning  before that person.  Section 8 (3)  provides  for
the  contingency of the services of a member of a Board  not
being available.  It requires the appropriate Government  to
make  the appointment as provided in section 5 (3) and  fur-
ther provides that notwithstanding the inclusion of a total-
ly new man in that vacancy, the proceedings shall be contin-
ued  before the Board so reconstituted.  Reading  the  three
clauses   together,  therefore, it is quite clear  that  the
object  of section 8 is to make specific provisions  in  re-
spect of situations when the Government must or does fill up
vacancies in the event of the services of a member or chair-
man  not being available and the consequences of  a  totally
new man filling up the vacancy.  As we read the Act, that is
the total object and intention of this section.  It does not
contemplate the consequences of the Government not making an
appointment  where  it  has the option not to  do  so.   The
emphasis on the words "so reconstituted''  in   sub-sections
(1)  and  (3)  and the concluding words  of  each  of  those
clauses clearly bear out this intention of the legislature.
    It  was  argued that although no provision  is  made  in
section 8 (1) about what is to happen if the Government  did
not  fill up the vacancy, it is implied that in  that  event
the  remaining members can continue the work. We are  unable
to accept that argument. In the first place, as pointed  out
above,  the object of section 8 is to provide in what  cases
vacancies  must be filled up and how the proceedings  should
continue  on the vacancy being filled up.  It does not  deal
at all with the situation arising from the not filling up of
the
393
vacancy  by the Government.  In this connection  the  provi-
sions  of sections 5 (4) and 6 (a) have been already  noted.
When the legislature wanted to provide that in spite of  the
temporary absence or permanent vacancy the remaining members
should be authorised to proceed with the work they have made
express provision to that effect.  If in the case of a Board
or  Court of Inquiry, neither of which is  adjudicating  any
disputes,  such  a  provision was  considered  necessary  to
enable the remaining members to act as a body, we think that
the  absence of such provision in respect of  the  Tribunal,
which  adjudicates on the disputes and whose  quasi-judicial
work  is admittedly of a joint character and  responsibility
leads to the irresistible conclusion that in the absence  of
one  or more members the rest are not competent to act as  a
Tribunal at all. Again the provisos to sections 5 (4) and  6
(3) are important.  Under those provisos when the Government
intimates to the remaining members that the services of  one
"have ceased to be available" the rest have no right to  act
as  the Board or Court.  It appears under the  circumstances
proper to hold that in respect of a Tribunal when the  serv-
ices  of a member have ceased to be available, the  rest  by
themselves have no right to act as the Tribunal.
    The question which we have got to consider can be divid-
ed in two stages.  On the appointment of Mr.  Chandrasekhara
Aiyar as a member of the Boundary Tribunal, did his services
cease  to be available within the meaning of section 8,  and
thereby  was a vacancy created? The parties have put  before
us only two telegrams exchanged between the chairman and Mr.
Mazumdar  on the one hand and the Central Government on  the
other,  to reach our conclusion about the situation  arising
from Mr. Chandrasekhara Aiyar joining the Boundary Tribunal.
Certain Government notifications published 'in May and June,
1950, i.e., over three or four months after Mr.  Chandrasek-
hara Aiyar finished his work on the Boundary Tribunal,  have
been put before us, but in our opinion these
394
ex  post facto notifications cannot help us in deciding  the
important  question under section 8. It is obvious that,  on
the  date the appointment of Mr. Chandrasekhara Aiyar  as  a
member of the Boundary Tribunal was made, it could not  have
been known how long that Tribunal would take to complete its
work.   In any event, the evidence put before us as of  that
date  does  not show that the appointment was  for  a  short
time.  The  Boundary Tribunal's work may have lasted  for  a
month  or  a  year.  Having regard to the  urgency  and  the
necessity  of quick disposal of industrial  disputes  recog-
nised  in section 15, the deputation of a member of  such  a
Tribunal to another Tribunal, whose work may be of an indef-
inite  duration, obviously makes the services of the  member
cease to be available to the Industrial Tribunal within  the
meaning  of  section 8 so as to bring about a  vacancy.  The
later statement in the Government notification of May, 1950,
that  Mr. Chandrasekhara Aiyar's services were lent  to  the
External Affairs Ministry "from the 23rd of November,  1949,
to the 20th of February, 1950,  " appears to be more a noti-
fication  for the purpose of the Accountant-General and  the
Audit departments of the Government than a disclosure of the
mind of the Government when the appointment was made on  the
23rd of November. When Mr. Sen, as chairman, and Mr.  Mazum-
dar held their first sitting in the absence of Mr.  Chandra-
sekhara  Aiyar, an objection was raised about the  constitu-
tion  of the Tribunal.  Thereupon Mr. Sen and  Mr.  Mazumdar
conveyed to the Government what had happened at the meeting.
The Government was therefore clearly faced with the  problem
as  to  what it wanted to do. The reply  telegram  from  the
Government asked Mr. Sen and Mr. Mazumdar to go on with  the
proceedings.   It further stated that the  Government  might
fill  up the vacancy later on.  The question for  considera-
tion is, what is the effect of this telegram of the  Govern-
ment  ?  In the light of the provisions of  section  8  that
telegram  can only mean that the Government had decided  not
to fill up the vacancy.  If a vacancy had occurred they  had
to make the appointment or state that they will
395
not do so.  They cannot defer their decision on the question
of  filling  up the vacancy and in the interval  direct  the
remaining  members to go on with the reference.  That  seems
to  us  to be the correct position because  the  fundamental
basis  on which the Tribunal has to do its work is that  all
members  must sit and take part in its proceedings  jointly.
If  a  member was casually or temporarily  absent  owing  to
illness,  the  remaining members cannot have  the  power  to
proceed  with  the reference in the name  of  the  Tribunal,
having regard to the absence of any provision like section 5
(4) or 6 (3) in respect of the tribunal.  The Government had
notified   the   constitution of this Tribunal by  the   two
notifications   summarized in the earlier part of the  judg-
ment and thereby had constituted the Tribunal to consist  of
three  members and those three were Mr. Sen,  Chairman,  Mr.
Mazumdar  and Mr. Chandrasekhara  Aiyar.    Proceeding  with
the adjudication in the absence of one, undermines the basic
principle of the joint work and responsibility of the Tribu-
nal  and of all its members to make the award. Moreover,  in
their  telegram  the Government had not  suggested  that  no
vacancy had occurred. Indeed, they recognised the fact of  a
vacancy having occurred but stated that they might make  the
appointment later on. If those words are properly construed,
without  any  outside considerations, it is clear  that  the
Government  intended that the remaining two members  of  the
Tribunal should proceed with the adjudication as a Tribunal.
This  direction  in fact was accepted and  the  two  members
proceeded with the reference and made certain awards.  Those
awards were sent to the Government under section 15 (2)  and
the Government by its order declared the awards to be  bind-
ing,  and  published them in the  official  Gazette.   Those
awards are signed only by Mr. Sen and Mr. Mazumdar.  Reading
those  awards with the notifications and the  provisions  of
sections  15 and 16 it is therefore clear that between  23rd
November,  1949,  and 20th February,  1950,  the  Government
''intended" the tribunal to consist only of Mr. Sen and  Mr.
Mazumdar. It was not and
396
cannot  be seriously disputed that in the event of the  Gov-
ernment deciding to fill up the vacancy, a notification  had
to  be  issued. The question is, why and under what  rule  ?
The answer clearly is that they had to do it because of rule
5.  The reason why intimation of a new man forming a  member
of  the Tribunal has to be publicly given, in  our  opinion,
applies  with equal force when a tribunal initially  consti-
tuted of three persons, viz., Mr. Sen, Mr. Mazumdar and  Mr.
Chandrasekhara  Aiyar,  is, by the Government  decision,  as
from  a  certain date, to be a tribunal of Mr. Sen  and  Mr.
Mazumdar only. The word "reconstituted" is properly used  in
section  8  because when a new member is introduced  in  the
panel so far performing its duties, it is a  reconstitution,
but the words of section 8 do not exclude the obligation  on
the  Government  to issue a notification under rule  5  when
there is not a reconstitution, but a new constitution of the
Tribunal.  The Government, however, did not give  effect  to
its intention by issuing a fresh notification under  section
7.  Therefore, when the services of Mr. Chandrasekhara Aiyar
ceased  to be available and they decided that another  inde-
pendent person was not to be appointed to fill the  vacancy,
there arose the situation when only two members  constituted
the  Tribunal and for the constitution of such  Tribunal  no
notification  under  section  7 of the Act  was  issued.  To
enable such a Tribunal of two persons to function, under the
provisions of the Act, a notification under section 7 of the
Act,  in our opinion, was absolutely essential. The work  of
the two members in the absence of such a notification cannot
be  treated as the work of a Tribunal established under  the
Act and all their actions are without jurisdiction.
     It  was argued on behalf of the respondents  that  when
Mr.  Chandrasekhara  Aiyar left for the  Boundary  Tribunal,
there arose a temporary absence which it w, as not necessary
to  fill up and the remaining two members  had  jurisdiction
under  the  Act  to proceed with the  adjudication.  In  our
opinion,  this contention cannot be accepted. In  the  first
place,  in the agreed statement of facts, it is  not  stated
that there was any temporary
397
absence. Again, as we have pointed out the Government by its
telegram of the 29th of November accepted the position  that
a vacancy had occurred and no question of temporary  absence
therefore arises for our consideration. An analogy sought to
be drawn between the temporary absence on leave or on  depu-
tation  of a Judge is misleading having regard to  the  fact
that  under  section 7 the Government has to decide  at  the
initial  stage how many members and who will constitute  the
Tribunal and have to notify the same.  That step having been
taken,  it  is  not within the power or  competence  of  the
Government to direct a few members only of such Tribunal  to
proceed with the adjudication for however short or long time
it be.  In our opinion, section 8 has no application to that
situation.   In this connection, it may be useful to  notice
that  under  rule 12 it was provided that "when  a  Tribunal
consists of two or more members, the tribunal may, with  the
consent  of  the  parties, act  notwithstanding  any  casual
vacancy in its number  ......  "This rule clearly shows that
even  when  there  was a casual vacancy  and  the  remaining
members  desired to proceed with the work they could  do  so
only with the consent of the parties. This rule framed under
section 38 of the Act strongly supports the contention  that
if  the  Act  impliedly gave power under section  8  to  the
remaining  two members of the Tribunal to act, as  contended
on behalf of the respondents, there was no necessity at  all
for making this rule. Although this rule was repealed on the
3rd  of December, it was in operation when the  services  of
Mr.  Chandrasekhara  Aiyar  ceased to be  available  to  the
Tribunal  as  from the 23rd of November. If in the  case  of
temporary absence, the consent of the parties was  essential
to enable the remaining members to act, it certainly follows
that  the  objection to their working as  a  'tribunal  when
there  is no consent and the absence is not casual,  but  is
due  to the services of one of the members having ceased  to
be  available,  is  fatal.  It follows  therefore  that  all
awards made by Mr. Sen and Mr. Mazumdar, after the  services
of Mr. Chandrasekhara Aiyar ceased to be available, were
398
not made by a tribunal duly constituted under section 7  and
those awards are therefore void.
     It  was contended that by directing Mr.  Chandrasekhara
Aiyar  to  work again as a member of the Banks  Tribunal  in
February,  1950,  the Government had filled up  the  vacancy
under  section  8. In our opinion this  position  cannot  be
supported on the admitted facts. As regards filling up of  a
vacancy  under  section 8, we have already noticed  that  by
directing the remaining two members to proceed with the work
and by notifying their awards as the awards of the  Tribunal
the  Government must be considered to have intended  not  to
fill  up the vacancy.  Again, the  later  notification  pub-
lished in June, 1950, does not even state that Mr.  Chandra-