dedol-hf/india-case-legal-rag huggingface dataset:
a  Tribunal  of 3, without the Government acting  in  strict
compliance  with the procedure laid down in the section  and
without  making a fresh appointment." The same argument  was
put  a little more rhetorically by likening the  proceedings
before the Tribunal to a running train and enquiring whether
it  was permissible for one to "jump into and jump off"  the
train  as one chose. I must confess that though I have  very
carefully  considered this argument I have not been able  to
appreciate its force. In answering the argument, we have  to
bear  in mind that the Legislature has conferred very  large
powers on the Government, and the entire constitution of the
Tribunal as well as the appointment of its members have been
left  to  its discretion.  Section 7 (2) provides  that  the
Tribunal shall consist of such
410
number of members as the appropriate Government thinks  fit.
Again, section 8 (1) provides that the Government may or may
not appoint a member to fill a vacancy. Under section 9,  no
order of the appropriate Government appointing any person as
a  member of a Tribunal shall be called in question  in  any
manner.  Under section 38, for the purpose of giving  effect
to the provisions of the Act, the Government may make rules,
and,  as far as I can see, there is nothing to  prevent  the
Government from making a rule fixing the minimum strength of
the Tribunal for hearing any of the matters before it. Thus,
in a way, the Government is empowered to constitute as  well
as reconstitute the Tribunal, and though it is not  expected
to  use  the  power arbitrarily, or unfairly  the  power  is
there. Therefore looking at the substance of the matter,  as
opposed  to  mere technicalities and legal  refinements,  it
appears  to  me to be a sufficient answer  to  the  question
posed on behalf of the appellants to say that, if the  going
out  and coming in of Mr. Aiyar was under the orders of  the
Government, the proceedings cannot be held to be invalid.
    Apart from this general answer, I shall now try to  deal
with  the question a little more closely. As I have  already
pointed  out, under section 8, the Government  is  empowered
not to fill a member's vacancy at all. Now, there appear  to
me  at least two obvious reasons, which may induce the  Gov-
ernment  not  to fill the vacancy, namely,  (1)  because  it
considers  that  the chairman and the  remaining  member  or
members are sufficient to carry on the work of the Tribunal,
and  (2) because the vacancy being a temporary one, it  con-
siders it unnecessary to introduce a new member and  prefers
to  await the return of the old member. It seems to me  that
it  was the latter alternative that commended itself to  the
Government in the present case. Here,  the vacancy being   a
temporary  one, Mr. Aiyar had not ceased to be a  member  of
the  Tribunal, and could therefore rejoin it as soon  as  he
was  free  from the duties of his new office.   In  such  an
event, it was not necessary for the Government to
411
make  any  order reappointing him to the  Tribunal.  He  was
still  a  member of the Tribunal and resumed his  duties  as
such under the orders of the Government. It will, therefore,
be entirely wrong to describe him as an intermeddler and  to
argue that the proceeding was vitiated by his return to  the
Tribunal. There is indeed no difficulty in the present  case
in  holding  that Mr. Aiyar joined the  Tribunal  under  the
orders  of the Government, and we find that  the  Government
ultimately  declared the award, to which he was a party,  to
be  binding under section 15 of the Act.  He was allowed  to
resume  his duties as member of the Tribunal, and  drew  his
salary  as  such  from the 20th  February,  1950,  till  the
termination  of the proceedings. Such being  the  facts,  it
would  be  far  too  abrupt a conclusion to  hold  that  the
entire  proceedings are void and the award is bad.   One  of
the  arguments which has been advanced before   us   against
the  validity of the award is that Mr. Aiyar, though he  did
not  participate in the proceedings which took place in  his
absence,  was at least theoretically able  to influence  the
decision  of the remaining members who had  participated  in
them.  But I do not see any basis for this argument in  law,
unless  we allow our minds to be influenced by  any  precon-
ceived  notions of strict judicial procedure followed  in  a
regular  court of law. A perusal of section 8 (2) will  show
that  the  Act does not contemplate a ale  novo  hearing  in
those  cases where a new member is appointed by the  Govern-
ment  in the place of a member whose services had ceased  to
be  available.  The new member may join at any stage of  the
proceedings, and no party will be heard to say that a member
who has not taken part in the earlier proceedings is able to
influence  the views of those who had participated in  them.
How then can such an objection be raised in the case of  Mr.
Aiyar,  who was familiar with the proceedings and had  taken
part in them in the earlier stages.
    When  we  therefore examine the facts closely,  we  find
that  in substance nothing has happened in this  case  which
could not have legitimately  happened
412
under  section 8 of the Act.  Even if we assume that it  was
necessary  for the Government to make an  appointment  under
sub-section (1) of section 8, the requirements of the provi-
sion  appear to me to have been substantially  fulfilled  in
this  case,  because  Mr. Aiyar could not  have  joined  the
Tribunal without giving notice to the Government and without
obtaining  its orders.  There can be no doubt that the  Gov-
ernment  permitted Mr. Aiyar to join the Tribunal, and I  do
not find any substantial difference between its directing  a
person  to  participate  in the work of  ?the  Tribunal  and
appointing him as a member of that Tribunal.
      Once therefore it is clearly understood that under the
Act,  the Government has been empowered not only to  consti-
tute the Tribunal but also to reconstitute it under  certain
circumstances,  the problem which is supposed to arise  from
the numerical changes in the composition of the Tribunal  in
question  should not present any difficulty.  I  think  that
the  answer to that problem is to be found within  the  four
corners of section 8. If there is a vacancy within the terms
of  that  section and the Government does not  fill  it  the
Tribunal of 3 members will evidently become a Tribunal of  2
members.  But the power of filling the vacancy being  vested
in the Government, the Tribunal may again become a  Tribunal
of  a  members, as soon as the vacancy is filled.   I  think
that  the  Government can take its own time in  filling  the
vacancy  and may allow the work of the Tribunal to go on  in
the  meantime. Sometimes, the filling of the vacancy may  be
delayed, because a suitable person is not at once available,
and it may also be delayed for other conceivable reasons.  I
do  not see anything in the Act or in section 8 to  restrict
the  powers of the Government in such a manner as to  compel
it either to fill the vacancy, at once or to let the vacancy
remain  unfilled for ever. To import such a condition  would
be placing an undue restriction on the power of the  Govern-
ment,   which neither the provisions nor the scheme  of  the
Act  justify.  The section, as it stands, will  also  in  my
opinion cover
413
a case where the vacancy being a temporary one, the  Govern-
ment chooses not to fill it but awaits the return of the old
incumbent.
    It  was contended that there was no formal  notification
made at the proper time to furnish evidence of the  decision
arrived at by the Government.  In fact, however, a Notifica-
tion was issued by the Government on the 20th May, 1950,  to
the following effect:
    "After  relinquishing charge of membership of the  Indo-
Pakistan  Boundary Dispute  Tribunal, Sri N.  Chandrasekhara
Aiyar  resumed  charge of his duties as Member  of  the  All
India Industrial Tribunal (Bank Disputes) on the 20th Febru-
ary 1950 (forenoon)."
    It is argued that this ex post facto notification cannot
legalize an illegality which had already been committed.   I
do  not  however  appreciate this argument.   In  the  first
place,  there  was no illegality  committed;  secondly,  the
section  does not require any notification; and thirdly,  it
is  not correct to say that the Notification was  issued  ex
post  facto, as the proceedings had not terminated but  were
still  going  on. The Government can take its own  time  for
issuing  a  Notification, and I am unable to hold  that  the
Government did not act bona fide in making the  Notification
to which I have referred. As I have already stated, the fact
that  Mr. Aiyar joined the Tribunal with the concurrence  of
the Government and the  Government wanted him to continue to
participate  in  the work of the Tribunal and paid  him  his
salary  on  that basis, is sufficient  compliance  with  the
requirements  of the Act. How the absence of a formal  order
or  delay in the Notification can have such  a  far-reaching
effect on the proceedings before the Tribunal as to make the
whole  award void as having been made without  jurisdiction,
is a matter which I find considerable difficulty in appreci-
ating.   It seems to me that the objections raised on behalf
of  the appellants are of the most unsubstantial  character,
and in the absence of any cogent if not compelling reason to
do  so,  I  cannot pursuade myself to hold  that  the   work
which  has  been
414
accomplished by the Tribunal after nearly a year's delibera-
tions and peregrinations all over the country at  considera-
ble cost to the public exchequer is so much money and labour
thrown away.
    In  the course of the arguments, we were asked  to  read
section 8 with sections 7 and 16.  I do not find anything in
either  of these sections which militates against  the  view
which  I have ventured to express, and I do not  think  that
the provision contained in section 16 that the report of the
Tribunal shall be signed by all the members of the Tribunal,
means that it should be signed even by those members who had
not taken part in the proceedings.  It really means that the
award shall be signed by such members as have taken part  in
the proceedings and could have taken part in them under  the
Act.  It should be remembered that the provision is  general
and  applies to the awards made by the Tribunals as well  as
the Boards and Courts, and it should be read with the provi-
sions contained in sections 5 and 6 which state that a Board
or Court having the prescribed quorum may act  notwithstand-
ing the absence of the chairman or any of its members or any
vacancy in its number.  It may be that the Tribunal and  the
Government  could have acted in this case with more care  so
as to avoid the criticisms directed against the  proceedings
of the Tribunal, but I find no sufficient ground for holding
that the proceedings were without jurisdiction.
    Reference  was  made in the course of the  arguments  to
rules  Nos. 5 and 12 framed by the Government under  section
38 of the Act, which run as follows :--
    "5.   The  appointment  of a Board,  Court  or  Tribunal
together  with the names of persons constituting the  Board,
Court or Tribunal shall be notified in the official Gazette.
    12.   Where 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 and no act,
proceeding or determination of the Tribunal shall be  called
in question or invalidated by reason of any such vacancy."
415
    These rules however have in my opinion no bearing on the
point  in  dispute.   Rule 5, dealing as it  does  with  the
appointment of a Board, Court or Tribunal together with  the
names of persons constituting them, refers to a Notification
which  the  Government has to make when a  Board,  Court  or
Tribunal  is initially constituted under the Act.  This  was
done  in  this case, as will appear from the  award  itself.
The  rule  has no reference to the appointments  made  under
section 8 of the Act to fill vacancies.  I take it that  the
Government will, as a matter of practice, issue a  notifica-
tion in regard to the appointments made under section 8, but
the  notification  will not be under rule 5, and  section  8
itself does not expressly provide for issuing any  notifica-
tion.  Nor  is a notification necessary  under  section8  in
cases  where the Government decides not to fill  a  vacancy.
The  mere fact that the word 'reconstituted' occurs in  sec-
tion 8, is not in my opinion enough to attract rule 5.  Rule
12  which  was in force till the 5th December,  1950,  dealt
with  a casual vacancy, and provided that on the  occurrence
of such a vacancy, the Tribunal may act with the consent  of
the  parties.  This rule had nothing to do with the  vacancy
caused by the services of a chairman or a member ceasing  to
be  available,  which is dealt with in section  8.   At  the
first  sight, it may appear that if the consent  of  parties
was necessary in  the case of a casual vacancy for  continu-
ing the proceedings, it may also be necessary for continuing
the proceedings under section 8 of the Act when no  appoint-
ment is made.  In my opinion, however, no such inference can
be  drawn  from rule 12. Under that  rule,  the  proceedings
could go on without the Government being informed, but as to
vacancies  which  occur under section 8, the  matter  passes
into  the hands of the Government and its action alone,  one
way or the other, legalizes the proceedings, and no question
of  consent  of parties arises. On the other hand,  rule  12
lends  support to the respondents' contentions in two  ways.
Firstly,  it shows that a "vacancy" for the purposes of  the
proceedings before the Tribunal can be casual and
416
need  not always be a permanent one, as suggested on  behalf
of  the  appellants; and secondly, what is  more  important,
that  a  "vacancy" does not affect the jurisdiction  of  the
remaining  members  to continue the proceedings, for  it  is
settled law that consent cannot give jurisdiction in respect
of a subject-matter though it might cure a mere  irregulari-
ty. It was said that rule 12 was ultra vires, but it appears
to me to be unnecessary to inquire into this side issue.
    For  the reasons I have set out, I  respectfully  differ
from the conclusion arrived at by my Lord the Chief  Justice
and the majority of my colleagues, and hold that the  objec-
tions  raised  on behalf of the appellants should  be  over-
ruled.
    PATANJALI  SASTRI  J.--I agree with  the  reasoning  and
conclusion  of my learned brother Fazl Ali whose judgment  I
have had the advantage of reading.  He has said all I wished
to say and has said it so well that I have nothing to add.
    MUKHERJEA,  J.--I concur in the decision of  my  learned
brother Fazl Ali, J. that the award of the All India  Indus-
trial  Tribunal (Bank Disputes) dated the 31st  July,  1950,
could not be held to be illegal and inoperative by reason of
any  lack  of jurisdiction in the Tribunal  which  made  it.
However, as the line of reasoning by which I have reached my
conclusion  is  not the same as that adopted by  my  learned
brother  and  as I have not been able to agree with  him  as
regards  the  validity of certain earlier awards  which  the
Tribunal  purported  to make in the months  of  January  and
February 1950, I deem it necessary and proper to express  my
own  views  on the subject matter of  controversy  in  these
appeals as succinctly as possible in a separate judgment.
The  only  point that has been canvassed before us  at  this
stage of the hearing of the appeals relates to the  question
of  jurisdiction, and the substantial ground upon which  the
legality  of  the awards has been assailed  by  the  learned
Counsel appearing for the several
417
Banks is that the awards were not made by a Tribunal proper-
ly  constituted and competent to adjudicate upon  industrial
disputes under the terms of the Industrial Disputes Act.  To
appreciate  the arguments that have been raised by  the  re-
spective  parties  on this point, it would be  necessary  to
state a few facts.
    By  a  notification dated the 13th of  June,  1949,  the
Central Government in exercise of the powers conferred  upon
it  by section 7 of the Industrial Disputes Act, 1947,  con-
stituted an Industrial Tribunal consisting of three  members
to wit: (1) Mr. K.C. Sen, (who was appointed chairman of the
Tribunal), (2) Mr. S.P. Verma and (3) Mr.J.N. Mazumdar.   By
a  further Notification dated August 24, 1949, Mr. N.  Chan-
drasekhara  Aiyar was appointed a member of the Tribunal  in
place  of Mr. S.P. Verma whose services ceased to be  avail-
able  and the Tribunal so reconstituted was designated  "The
All India Industrial Tribunal (Bank Disputes) ." The  Tribu-
nal consisting of the chairman and the two members mentioned
aforesaid  commenced their sittings at Bombay  on  September
12,  1949, and continued to sit as so constituted at  Bombay
and various other places since then.  From the afternoon  of
23rd September, 1949, the services of Mr. N.  Chandrasekhara
Aiyar were placed temporarily at the disposal of the  Minis-
try of External Affairs, he being appointed a member of  the
Indo-Pakistan Boundary Tribunal. Mr. Aiyar's work in connec-
tion with the Indo-Pakistan Boundary Tribunal ended on  27th
or  January, 1950, and a Government Notification shows  that
he  was absent on leave from 28th January, 1950,  until  the
19th  of February following and it is on the 20th  February,
1950, that he actually resumed his duties as a member of the
Industrial  Tribunal.  During the entire period of  his  ab-
sence there were various sittings of the Industrial Tribunal
in which the two remaining members took part and a number of
awards  were  also  made and signed by  these  two   members
adjudicating  upon several items of dispute concerning  cer-
tain  Banks.  It may be mentioned here that in  exercise  of
the powers
418
conferred  by  section 38 of the  Industrial  Disputes  Act,
certain  rules were framed by the Central  Government  which
came  into force on 3rd December, 1949, and under which  the
Tribunal,  as constituted by the Notification of 13th  June,
1949,  was authorised to entrust such cases or  matters  re-
ferred  to it, as it deemed fit, to one or more members  for
enquiry and report.  In case of such entrustment, the report
of the enquiring member was to be placed before the chairman
of  the  Tribunal  and the Tribunal  after  considering  the
report  and making such further enquiry as it deemed  proper
could deliver the award.  Purporting to act in pursuance  of
these  rules  a large number of matters pending  before  the
Tribunal  were divided amongst the members for  enquiry  and
report and the members of the Tribunal did sit separately at
different places from the 3rd of December, 1949.
    After  Mr.  Aiyar joined the Tribunal,  the  proceedings
continued  as  before. The hearing of  the  general  issues,
which began at Bombay, was concluded on 3rd April, 1950. The
Tribunal made and signed the main, award on gist July, 1950,
which was published in the Gazette of India  (Extraordinary)
on August 12, 1950.
    The point that has been pressed for our consideration on
behalf  of the appellants Banks is that on the  services  of
Mr.  Aiyar  having ceased to be available by reason  of  his
being  appointed  a  member of  the  Indo-Pakistan  Boundary
Tribunal,  the  remaining  two members could  not,  in  law,
constitute   an  Industrial  Tribunal  without   its   being
reconstituted  as  such in, the manner contemplated  by  the
provisions of the Industrial Disputes Act.  The  proceedings
after  the 23rd of November, 1949, became,  therefore,  void
and inoperative and the subsequent rejoining of the Tribunal
by  Mr.  Aiyar  was of no avail, as a  vacancy  having  once
occurred,  a fresh appointment of a member and a fresh  con-
stitution  of the Tribunal were imperative in law.  We  have
been asked to declare the award made on 31st of July,  1950,
as well as the earlier awards void and inoperative on  these
grounds.
419
    These  contentions  have been sought to be  repelled  on
behalf  of  the  respondents employees as  well  as  by  the
learned  Attorney-General who appeared for the Central  Gov-
ernment  as intervener, on a variety of grounds  and  though
the  grounds are not quite uniform or consistent, they  have
all  been invoked in support of  the position that  even  in
the  absence of Mr. Aiyar it was quite competent to the  two
other members to continue to function legally as a  Tribunal
under the provisions and the general scheme of the Industri-
al  Disputes Act, 1947. There was nothing irregular,  it  is
said, in Mr. Aiyar's subsequently taking part in the  Tribu-
nal and signing the award on 31st July, 1949. I will  notice
these arguments in detail as I proceed with my judgment.
It will be convenient first of all to advert to such  of
the provisions of the Industrial Disputes Act, 1947, as have
a bearing on the questions raised in this case.
    The object of the Industrial Disputes Act, as set out in
the  preamble is "to make provisions for  investigation  and
settlement  of  industrial disputes and  for  certain  other
purposes hereinafter appearing." There are three classes  of
authorities  provided  for by the Act' which  are  entrusted
with  the powers and duties of investigation and  settlement
of industrial disputes. First of all, there are Conciliation
Officers or Boards of Conciliation, whose duties mainly  are
to induce the parties to come to a fair and amicable settle-
ment  of the disputes amongst themselves.   Secondly,  there
are  Courts  of  Enquiry and though they  are  described  as
courts, their duties end with investigation into the matters
referred  to  them  and submitting reports  thereon  to  the
appropriate Government. Lastly, there are Industrial  Tribu-
nals  composed of independent persons who either are or  had
been  Judges  of the High Court or District Judges,  or  are
qualified for appointment as High Court Judges.
    Sub-section (2) of section 5 provides for the  constitu-
tion  of a Board of Conciliation.  A Board  of  Conciliation
shall consist of a chairman and two or four other members as
the appropriate Government thinks
420
fit, and sub-section (8) provides that the chairman shall be
an  independent person, while the members shall  be  persons
appointed  in equal numbers by the parties to  the  dispute.
Sub-section (4) makes an important provision, namely, that a
Board  can function  despite the absence of the chairman  or
any  of the members if it has the prescribed quorum as  laid
down  in the rules, provided however that if the  Government
notifies  the Board that the services of the chairman or  of
any  other  member have ceased to be  available,  the  Board
shall  not act unless a new chairman or member, as the  case
may be, has been appointed.
    Section  6 of the Act relates to Courts of  Enquiry  and
such  court  may consist of one independent person  or  such
number of independent persons as the appropriate  Government
may  think fit. Where a Court of Enquiry consists of two  or
more  members,  one  of them has got to be  appointed  as  a
chairman.  The  Court  like the Board  of  Conciliation  can
function  in the absence of the chairman or any of its  mem-
bers  or in the case of any vacancy in its number,  provided
it has the prescribed quorum; but it cannot function if  the
appropriate Government notifies it that the services of  the
chairman  have  ceased  to be available, so long  as  a  new
chairman is not appointed. There is no provision in  section
6  relating to notification by Government in case the  serv-
ices  of a member of a Court cease to be available as  there
is  in the case of a member of the Conciliation Board  under
section 5.
     Section 7 deals with Industrial Tribunals.  Sub-section
(1) lays down that the appropriate Government may constitute
one  or  more Industrial Tribunals for the  adjudication  of