dedol-hf/india-case-legal-rag huggingface dataset:
jee's  main contention is that section 4 (1) (c)of the  East
Punjab  Public  Safety Act, which provides  for  passing  of
orders  removing  a person from a particular  area,  on  the
satisfaction  of the Provincial Government or  the  District
Magistrate,  cannot  be a reasonable  piece  of  legislation
inasmuch  as  the only pre-requisite for imposition  of  the
restrictions  is the personal satisfaction of certain  indi-
viduals  or authorities, the propriety or reasonableness  of
which  cannot be tested by the application of  any  external
rule or standard.  It is said that any law which places  the
liberty
533
of  a subject at the mercy of an executive officer,  however
high placed he might be and whose action cannot be  reviewed
by a judicial tribunal, is an arbitrary and not a reasonable
exercise  of  legislative powers.  The  contention  requires
careful examination.
It is not disputed that under clause (5) of article 19,
the  reasonableness  of a challenged legislation has  to  be
determined by a Court and the Court decides such matters  by
applying  some  objective standard which is said to  be  the
standard of an average prudent man.  Judged by such standard
which is sometimes described as an external yard-stick,  the
vesting  of authority in particular officers to take  prompt
action  under emergent circumstances, entirely on their  own
responsibility or personal satisfaction, is not  necessarily
unreasonable.  One has to take into account the whole scheme
of  the  legislation and the circumstances under  which  the
restrictive  orders could be made.  The object of  the  East
Punjab Public Safety Act is to pro vide for special measures
to  ensure  public safety and maintenance of  public  order.
Under  section 4 (1) (c) of the Act, the Provincial  Govern-
ment or the District Magistrate may make an order  directing
the  removal of a certain person from a particular area,  if
they  are satisfied that such order is necessary to  prevent
such  person  from acting in any way prejudicial  to  public
safety or maintenance of public order.  Preventive orders by
their very nature cannot be made after any judicial  enquiry
or trial.  If emergent steps have got to be taken to prevent
apprehended  acts which are likely to jeopardise the  inter-
ests  or  safety of the public, somebody must be  given  the
power of taking the initial steps on his own responsibility;
and no reasonable objection could be taken if the authority,
who is given the power, is also entrusted with the responsi-
bility of maintaining order and public peace in any particu-
lar district or province.  The preventive provisions of  the
Criminal  Procedure Code are based on similar principle.  In
my opinion, therefore, the provision of section 4 (1) (c) of
the East Punjab Public Safety Act cannot be pronounced to be
unreasonable,  simply because the order could be  passed  by
the Provincial Government
534
or  the District Magistrate on their own personal  satisfac-
tion  and not on materials which satisfy  certain  objective
tests.
    But  though  certain authorities can  be  invested  with
powers to make the initial orders on their own  satisfaction
in  cases of this description, the position would  certainly
be  different if the order thus made is allowed to  continue
for  any  indefinite period of time without giving  the  ag-
grieved person an opportunity to say what he has got to  say
against the order.  I have already set out the provisions of
sub-section  (3) of section 4 which deals with  duration  of
the  orders  made under the various clauses  of  sub-section
(1).   It will be seen from this sub-section that  there  is
absolutely  no  limit as to the period of time during  which
an  externment order would remain in force if the  order  is
made by the Provincial Government. The Provincial Government
has been given unlimited authority in this respect and  they
can keep the order in force as long as they chose to do  so.
As regards orders made by a District Magistrate, the  period
indeed  has  been fixed at three months, but even  here  the
Provincial  Government  is  competent to extend  it  to  any
length  of time by means of a special order.  The  law  does
not     fix any maximum period beyond which the order cannot
continue;  and the fact that the Act itself would expire  in
August,  1951, is, in my opinion, not a relevant matter  for
consideration in this connection at all.    I have no  hesi-
tation in holding that the  provision of sub-section (3)  of
section 4 is manifestly unreasonable and cannot be supported
on  any just ground.  One could understand that the  exigen-
cies  of circumstances might justify the vesting of  plenary
powers  on  certain authorities which could pass  orders  on
their' own personal satisfaction temporarily and for a short
period of time; but if these orders are to continue  indefi-
nitely, it is only fair that an opportunity should be  given
to the person against whom such order is made to say what he
has  to say in answer to the allegations made  against  him.
There may not be an investigation by a regular Court but  it
is  necessary  that the aggrieved person should be  given  a
fair hearing and that by an
535
impartial tribunal.  The provision of the impugned Act which
has bearing on this point is contained in sub-section (6) of
section 4 and it runs as follows:
    "When  an order has been made in respect of  any  person
under  any of the clauses under section 4, sub-section  (1),
or sub-section (2) the grounds of it may be communicated  to
him by the authority making the order and in any case,  when
the  order is to be in force for more than three months,  he
shall have a right of making a representation which shall be
referred to the Advisory Tribunal, constituted under section
3, sub-section (4)."
    It  will be noted that the first part of the  subsection
makes it entirely optional with the authorities to  communi-
cate  the  grounds,  upon which the order is  made,  to  the
person affected by it.  The grounds need not be communicated
at  all if the authorities so desire.  As regards the  right
of  representation the latter part of the sub-section  seems
to imply that when the order is to remain in force for  more
than  three  months, the right of representation  should  be
given  to the aggrieved person and the representation  shall
be  referred  for  consideration to  the  advisory  tribunal
constituted  under section 3, sub-section (4), of  the  Act.
The right, however, is purely illusory as would appear  from
the fact that even in cases where the order is to be  opera-
tive  for more than three months, there is no obligation  on
the part of the authorities to communicate to the person the
grounds upon which the order was made.  The aggrieved person
consequently  may not at all be apprised of the  allegations
made  against him and it will be impossible for him to  make
any adequate or proper representation, if he is not told  on
what grounds the order was passed. In my opinion, this is an
equally  unreasonable provision and neither sub-section  (3)
nor  sub-section (6) of section 4 of the Act can be said  to
have imposed restrictions which are reasonable in the inter-
ests  of the general public.  My conclusion,  therefore,  is
that under article 13 (1) of the Indian Constitution,  these
provisions of the Act became void and inoperative after  the
Constitution came into
536
force,  and  consequently  the order made  by  the  District
Magistrate in the present case cannot stand.
    I would, therefore, allow the application and quash  the
externment order that has been passed against the  petition-
er.
Petition dismissed.
Agent for the petitioner: Ganpat Rai.
Agent for the opposite party: P.A. Mehta.
PETITIONER:
THE BHARAT BANK LTD., DELHI
        Vs.
RESPONDENT:
EMPLOYEES OF THE BHARAT BANK LTD.,DELHIv.THE BHARAT BANK  EM
DATE OF JUDGMENT:
26/05/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
CITATION:
 1950 AIR  188            1950 SCR  459
 CITATOR INFO :
 F          1953 SC 325  (13)
 F          1954 SC 520  (4)
 R          1955 SC 170  (20)
F          1956 SC  66  (16)
 R          1956 SC 153  (6)
 R          1956 SC 231  (22,23)
 D          1956 SC 319  (13)
 R          1959 SC1035  (14)
 R          1961 SC1669  (13)
 RF         1962 SC 486  (15)
 R          1962 SC1621  (60)
 F          1963 SC 630  (6)
 RF         1963 SC 677  (18,20)
 R          1963 SC 874  (8,9,17)
 R          1965 SC1595  (18,19,40,41,42)
 R          1967 SC1494  (13)
 RF         1972 SC1967  (5)
 RF         1977 SC2155  (23)
 R          1979 SC1652  (29)
E          1980 SC 856  (21)
 C          1980 SC 962  (77)
 R          1982 SC  78  (8)
 RF         1992 SC2219  (53,135)
ACT:
    Constitution  of India, Art. 136--Supreme  Court--Appel-
late  Jurisdiction--Award  of  Industrial  Tribunal--Whether
appealable--
460
Applicationt for special leave--Maintainability -- Nature of
functions  of Industrial Tribunal-Industrial  Disputes  Act,
1947, es. 8, Case heard by Bench of three members.
HEADNOTE:
 Held per KANIA (C.J. FAZL ALl,  and  MAHAJAN JJ.  (MUKH-
ERJEA  and PATANJALI SASTRI JJ. dissenting).--The  functions
and  duties  of the Industrial  Tribunal  constituted  under
Industrial Disputes Act, 1947, are very much like those of a
body  discharging  judicial functions although it is  not  a
Court,  and under Art. 136 of the Constitution of India  the
Supreme  Court jurisdiction to entertain an application  for
leave  to  appeal  from    decision of  the  Tribunal,  even
though it will be very to entertain such an application.
    Per      MUKERJEA       J.     (PATANJALI     SASTRI    J.
concurring).--An  Industrial Tribunal functioning under  the
Industrial  Disputes  Act is not a judicial  tribunal.   The
nature of the determinations made     and the materials  and
considerations on which it has to decide a dispute are  also
such  that the powers of an appellate court cannot be  exer-
cised  fully  and effectively in respect of  them  and  such
determinations are therefore outside the purview of Art. 136
of  the  Constitution.   Even assuming that  the  Court  had
jurisdiction             appeal, the present case was not  a
fit one for entertaining an appeal from the determination of
the Tribunal.
[On  the merits KANlA C..J., FAZL ALl, PATANJALI  SASTRI
and MUKHERJEA, JJ. were of opinion that there was no  ground
for  admitting the appeal.  MAHAJAN J. was of  opinion  that
the award was bad and must be set aside.]
JUDGMENT:
APPELLATE  JURISDICTION:  Civil  Appeal  No.
XXXIV of 1950.
    Appeal  by special leave from an Award of the  All-India
Industrial Tribunal (Bank Disputes) Bombay, dated 1st  Janu-
ary,  1950.  The facts of the case are set out in the  judg-
ment.
Dr.  Bakshi  Tek Chand (Veda Vyas and S.K.  Kapur,  with
him) for the appellant.
B. Sen for the respondents.
    Alladi Krishnaswami Aiyar (Jindra Lal, with him) for the
Union of India.
    1950.  May 26.  The Court delivered judgment as  follows
:--
    KANIA  C.J--  I  have read  the  judgments  prepared  by
Messrs.  Fazl Ali, Mahajan and Mukherjea JJ.
461
in this case.  As the views in   those judgments in  respect
of the nature of the duties and functions of the  Industrial
Tribunal  do not  show agreement I consider it necessary  to
add a few words of my own.
    In my opinion, the functions and  duties  of the  Indus-
trial Tribunal are very much like those of a body  discharg-
ing  judicial  functions, although it is not a  Court.   The
rules  framed by the Tribunal require evidence to  be  taken
and  witnesses to be examined, cross-examined  and  re-exam-
ined.   The Act constituting the Tribunal imposes  penalties
for  incorrect statements made before the  Tribunal.   While
the  powers     of the Industrial Tribunal in some  respects
are  different from those of an ordinary civil Court and  it
has  jurisdiction and powers to give reliefs which  a  civil
Court  administering  the  law of the  land  (for  instance,
'ordering  the reinstatement of a workman) does not  possess
in the discharge of its duties it is essentially working  as
a judicial body.  The fact that its determination has to  be
followed by an order of the Government which makes the award
binding,  or that in cases where Government is a  party  the
legislature  is permitted  to revise the decision,  or  that
the Government is empowered to fix the period. of the opera-
tion of the award do not, to my mind, alter  the nature  and
character of the functions of the Tribunal.  Having  consid-
ered all the provisions of the Act it seems to me clear that
the  Tribunal is discharging functions very near those of  a
Court, although it is not a Court in the technical sense  of
the word.
   The next question is whether under article 136 the  Court
has  jurisdiction to entertain an application for  leave  to
appeal  against the decision of such a body. It is not  dis-
puted that the Court has power to issue writs of  certiorari
and  prohibition  in respect of the work of  the   Tribunal.
The   only  question is  whether there is a right of  appeal
also.   In  my opinion the wording of article  136  is  wide
enough  to  give jurisdiction to the Court to  entertain  an
application for leave to appeal, although it is obvious that
having  regard to the nature of the functions of the  Tribu-
nal, this Court will be very reluctant to entertain such  an
application.
462
    As regards the merits, I do not think this is a case  in
which I would admit the appeal.  The aggrieved   parties may
apply for redress by adopting other appropriate proceedings.
The appeal therefore should be dismissed with costs.
  FAZL ALl J.--The important question to be decided in  this
case  is  whether  the present appeal lies at  all  to  this
Court.  The question is not free from difficulty, but on the
whole I am inclined to think that 'the appeal does lie.   It
is  fully  recognized  that the scope  article  136  of  the
Constitution  is  very  wide, but the  significance  of  the
language  used  in the section can be  appreciated  only  by
comparing  it with the articles which precede  it.   Article
132  deals  with the appellate jurisdiction of  the  Supreme
Court in cases involving a substantial question of law as to
the  interpretation of the Constitution, and the words  used
in  that  article  are: "appeal......   from  any  judgment,
decree  or finalorder."  Article 133 deals with  appeals  in
civil matters and the same words are used here also.   Arti-
cle  134  deals with appeals in criminal  matters,  and  the
words  used  in it are: "appeal......   from  any  judgment,
final order or sentence."  In article 136, the words  "judg-
ment"  and "decree," which are used in articles 132 and  133
are  retained.  Similarly, the words "judgment"  and   "sen-
tence"  occurring  in  article 134 are also  retained.   But
the  expression "final order" becomes "order," and,  instead
of  the High Court, reference is made to "any court."   Cer-
tain other words are also used in the article which seem  to
me  to have a special significance, these being  "determina-
tion," "cause or matter" and "tribunal."  It is obvious that
these  words greatly widen the scope of article  136.   They
show  that an appeal will lie also from a  determination  or
order of "any tribunal" in any cause or matter.
    Can  we  then say that an Industrial Tribunal  does  not
fall  within the scope of article 136 ?  If we go by a  mere
label, the answer must be in the affirmative. But we have to
look  further  and see what are the main  functions  of  the
Tribunal  and how it proceeds to discharge those  functions.
This is necessary because
463
I  take it to be implied that before an appeal can.  lie  to
this  Court  from a tribunal it must perform  some  kind  of
judicial function and partake to some extent of the  charac-
ter of a Court.
    Now  there can be no doubt that the Industrial  Tribunal
has, to use a well-known expression, "all the trappings of a
Court"  and performs functions which cannot but be  regarded
as  judicial.  This is evident from the rules by  which  the
proceedings  before the Tribunal are regulated.  It  appears
that  the proceeding before it commences on  an  application
which in many respects is in the nature of a plaint.  It has
the  same  powers as are vested in a civil Court  under  the
Code  of Civil Procedure when trying a suit, in  respect  of
discovery,  inspection, granting adjournment,  reception  of
evidence  taken  on  affidavit,  enforcing  the   attendance
witnesses,  compelling the production of documents,  issuing
commissions,  etc.  It is to be deemed to be a  civil  Court
within  the meaning of sections 480 and 482 of the  Criminal
Procedure Code, 1898.  It may admit and call for evidence at
any stage of the proceeding and has the power to  administer
oaths.   The parties appearing before it have the  right  of
examination,  cross-examination  and re-examination  and  of
addressing  it after all evidence has been called.  A  party
may  also be represented by a. legal practitioner  with  its
permission.
    The  matter does not rest there.  The main  function  of
this Tribunal is to adjudicate on industrial disputes  which
implies  that  there must be two or more parties  before  it
with conflicting cases, and that it has also to arrive at  a
conclusion  as  to how the dispute is to  be  ended.   Prima
facie,  therefore, a Tribunal like this cannot  be  excluded
from the scope of article 136, but before any final  conclu-
sion  can  be expressed on the subject  certain  contentions
which  have  been put forward on behalf of  the  respondents
have to be disposed of.
The  first  contention is that the  Industrial  Tribunal
cannot  be  said  to perform a  judicial  or  quasi-judicial
function.  since  it  is not required to be  guided  by  any
recognized substantive law in deciding disputes
464
which  come  before  it.  On the  other  hand,  in  deciding
industrial disputes, it has to override contracts and create
rights  which  are opposed to contractual rights.  In  these
circumstances,   it  is said that the very  questions  which
arose  before the Privy Council in Moses  v.Parker  Ex-parte
Mose (1) arise in this case, these questions being :
(1)  How  can the propriety of the  Tribunal's  decision  be
tested on appeal, and
     (2) What are the canons by which the appellate Court is
to be guided in deciding the appeal ?
 Their Lordships of the Privy Council undoubtedly felt  that
these were serious questions, but they had no hesitation  in
saying  that  "if  it were clear that appeals  ought  to  be
allowed. such difficulties would doubtless be met  somehow."
This, in my opinion, is a sufficient answer to the difficul-
ty raised. The Tribunal has to adjudicate in accordance with
the  provisions  of  the Industrial Disputes  Act.   It  may
sometimes  override contracts, but so can a Court which  has
to  administer law according to the Bengal or  Bihar  Money-
lenders Act, Encumbered Estates Act and other similar  Acts.
The  Tribunal has to observe the provisions of  the  special
law  which it has to administer though that law may be  dif-
ferent  from  the  law which an ordinary  Court  of  justice
administers.   The appellate Court, therefore, can at  least
see that the rules according to which it has to act and  the
provisions  which are binding upon it are observed, and  its
powers  are  not.exercised  in an  arbitrary  or  capricious
manner.
     The second contention, which is a more serious one,  is
that  the adjudication of the Tribunal has not all  the  at-
tributes  of a judicial decision, because  the  adjudication
cannot  bind the parties until it is declared to be  binding
by  the Government under section 15 of the  Industrial  Dis-
putes  Act.  It is said that the adjudication is  really  in
the  nature  of an advice or report which is  not  effective
until made so by the Government.  It appears that  a similar
objection  was raised in Rex v. Electricity  Commissioner's,
London Electricily'
(1) [1896] A.C. 245.
Joint  Committee Co. (1920) Ex-Parte (1) for the purpose  of
deciding  whether a writ of certiorari should be  Issued  in
the circumstances of the case but was dis. posed of in these
words :--
        "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 nodifications. 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.........  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 in arriving at  that
decision the Commissioners themselves are to act  judicially
and  within the limits prescribed 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 Trans-
port 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 author-
ity  which compels me to hold that a proceeding cannot be  a
judicial  proceeding  subject to prohibition  or  certiorari
because  it  is subject to confirmation  or  approval,  even
where the approval has to be that of  the Houses of  Parlia-
ment.  The authorities are to the   contrary.' '
  (1) [1924] 1 K.B. 171.
466
It is well known that a writ of certiorari can issue
only against an order of a judicial or quasi-judicial tribu-
nal and if it is permissible for the High Court to. issue  a
writ  of  certiorari against an Industrial  Tribunal,  which
fact was not seriously disputed before us, I find it  diffi-
cult to hold that the tribunal does not come with-
   in  the  purview of article 136. If a  subordinate  Court
acts in excess of its jurisdiction or assumes a jurisdiction
which  it does not possess, the appellate Court  can  always
interfere  and do what is contemplated to be done by a  writ
of certiorari.
It  is to be noted that under section 15 of  the  Industrial
Disputes  Act, 1947, in cases where the appropriate  Govern-
ment is not a party to the dispute, all that the  Government
has  to  do  on receiving the award of the  Tribunal  is  to
declare it to be binding and to state from what date and for
what period it will be binding.  Section 15.(2) is mandatory
and it provides:
       "On receipt of such award, the appropriate Government
shall   by  order  in  writing  declare  the  award  to   be
binding.......  "
       Thus  the Government cannot alter, or cancel, or  add
to  the award, but the award must be declared to be  binding
as  it is. In substance, therefore, the adjudication of  the
Tribunal  amounts  to a final determination of  the  dispute
which binds the parties as well as the Government.
       Our  attention was however  drawn to the  proviso  to
section 15 (2), which runs as follows:--
       "Provided that where the appropriate Government is a.