dedol-hf/india-case-legal-rag huggingface dataset:
the  best  evidence.  So were the commissioners.   So  every
public officer ought to be.  But they are expressly  exoner-
ated from all rules of law and equity, and all legal  forms.
How  then can the propriety of their decision be  tested  on
appeal  ? What are the canons by 'which this Board is to  be
guided in advising Her Majesty whether the Supreme Court  is
right  or wrong ? It seems almost impossible that  decisions
can be varied except by reference to some rule,  whereas the
Court  making  them  is free from rules.   If  appeals  were
allowed,  the  certain  result would be  to  establish  some
system  of rules, and that is the very thing from which  the
Tasmanian Legislature has desired to leave the Supreme Court
free  and  unfettered in each case.  If it were  clear  that
appeals  ought to be allowed such difficulties would  doubt-
less be met somehow.  But there are strong arguments to show
that the matter is not of an appreciable nature."
One  would  have expected that after  this  opinion  the
decision would have been that the Judicial Committee had  no
jurisdiction  to  entertain the appeal but  their  Lordships
proceeded  to base their decision not on this ground but  on
the ground that this was not a fit case for the exercise  of
the prerogative of the King. In my opinion, the observations
made in that case have no apposite application to the provi-
sions  of the statute with which we are concerned. I do  not
see any difficulty in this case in testing the propriety  of
the  determination  of the tribunal.  This Court is  not  to
substitute its decision for the determination of the  tribu-
nal when granting relief under article 136.  When it chooses
to interfere in the exercise of these extraordinary  powers,
it  does  so because the tribunal has  either  exceeded  its
jurisdiction or has approached the questions referred to  it
in a manner which is likely to
489
result  in injustice or has adopted a procedure  which  runs
counter  to the well established rules of  natural  justice.
In  other words, if it ,has denied a hearing to a  party  or
has refused to record his evidence or has acted in any other
manner,  in an arbitrary or despotic fashion.  In such  cir-
cumstances  no  question arises of this  Court  constituting
itself  into  a tribunal and assuming powers of  settling  a
dispute.   All that the Court when it entertains  an  appeal
would  do is to quash the award and direct the  tribunal  to
proceed  within the powers conferred on it and approach  the
adjudication  of  the  dispute according  to  principles  of
natural  justice.  This Court under article  136  would  not
constitute itself into a mere court of error.  Extraordinary
powers  have to be exercised in rare and  exceptional  cases
and  on well known principles.  Considered in the  light  of
these principles, there is no insuperable difficulty in  the
present case of the nature pointed out in the passage  cited
above.   It was conceded that the High Court could  exercise
powers under section 226 and could quash an award but it was
said  that under article 136 this power should not be  exer-
cised  in an appeal.  I do not see why ?  Particularly  when
after the High Court has passed any decision on an  applica-
tion made to it in exercise of the powers under section 226,
that  decision could be brought to this Court in appeal.  In
the matter of an industrial dispute where expedition is  the
crux of the matter, it is essential that any abuse of powers
by such tribunals is corrected as soon as possible and  with
expedition.
    It  may be mentioned that it is no novel practice for  a
court  empowered  to  grant special leave  to  exercise  its
powers  even  though  there may be  intermediate  rights  of
appeal  or  other remedies available, if  it  is  considered
essential to do so in extraordinary situations.  Vide  Bent-
wick's Privy Council Practice, 3rd Edn., page 125.   Therein
it is stated as follows :--
    "In several cases from Jamaica, the Privy Council grant-
ed leave to appeal to the Queen in Council directly from the
Supreme  Court, without an intermediate appeal (which  would
have been attended with much
490
expense  and  delay) to the Court of Error  in  the  island,
there being in each of those cases manifestly some point  of
law raised which deserved discussion."
    The cases were In Re Barnett(1),  Harrison v. Scott (2),
and  Attorney-General  of  Jamacia  v.  Manderson  (s).  The
phraseology  employed in article 136 itself  justifies  this
course.   The article empowers this Court to  grant  special
leave against sentences or orders made by any court.  In all
other  articles of the Constitution right of appeal is  con-
ferred  against  final  decisions of the  highest  court  of
appeal   in  the  country but under this  article  power  is
given  to this Court to circumvent that procedure if  it  is
considered  necessary  to do so.  I am,  therefore,  of  the
opinion  that  the mere circumstance that a  remedy  in  the
nature  of a writ of certiorari is open to  the  petitioners
does  not necessarily lead to the conclusion that the  power
of  this  Court under article 136 is circumscribed  by  that
circumstance. Whenever judicial review is permissible in one
form or another, this Court as the highest Court in the land
can  exercise  its special powers  and  circumvent  ordinary
procedure  by granting special leave. What it has  to  ulti-
mately decide it can decide earlier.
    I  now  proceed to examine some of the  cases  to  which
reference was made by Mr. Alladi.
    Three  Australian  cases were cited  which  concern  the
construction  of  sections 51, 71 and 72 of  the  Australian
Constitution (63 and 64 Vict., c. 12).  Section 72  requires
that  every Justice of the High Court and every  Justice  of
any  other  Court created by the Parliament of  the  Common-
wealth  shall subject to the power of removal  contained  in
the  section be appointed for life.  Section 71 confers  the
whole  judicial  power of the Commonwealth upon  the  Courts
therein mentioned and no other tribunal or body can exercise
that power. Every Court referred to in section 71 has to  be
constituted in the manner provided by section 72. The  ques-
tion  in  these cases was as to the meaning  of  the  phrase
"judicial power  of the Commonwealth."   Similar
 (1)  4 Moo. 453.        (2) 5 Moo. 357.        (3)  6  Moo.
239.
491
phraseology  has not been used in any part of the  Constitu-
tion of India and in these circumstances it is difficult  to
derive  any assistance from these decisions in  solving  the
problem  before  us.  The Constitution of India is  not  mo-
delled  on the Constitution of Australia and that being  so,
any observations made in decisions given under that  Consti-
tution cannot be held to be a safe guide in the  interpreta-
tion  of  language employed in  a  Constitution  differently
drafted.
    The  first of these cases is Waterside Workers'  Federa-
tion of Australia v.J.W. Alexander Ltd. (1). Therein it  was
held that the power conferred by the Commonwealth  Concilia-
tion  and  Arbitration Act 1904-1915 upon  the  Commonwealth
Court of Conciliation and Arbitration to enforce awards made
by  it  is part of "the judicial power of  the  Commonwealth
"within  the meaning of section 71 of the Constitution,  and
can only be vested in the courts mentioned in that  section.
Mr.  Alladi placed reliance on a passage at page 467 in  the
judgment of Isaacs and Rich JJ., which reads as follows :--
    "The  arbitral  part  of the Act,  therefore,  is  quite
within the power of pl. xxxv, and is not intended by the Act
to  be exercised by an ordinary Court of Justice, which,  it
is suggested, Parliament by some strange perversity proceed-
ed  to destroy at birth. It is true that enforcement  provi-
sions are found.......  But all this was in imitation of the
State Acts of Arbitration, and not in reliance on the  Judi-
cature  Chapter of the Federal Constitution.   The  arbitral
portion  of  the  Act is, in our  opinion,  perfectly  good,
subject to its severability from any other portion which may
be bad."
    It  was argued that the Industrial Tribunal here was  an
arbitration  tribunal of the same kind as in  Australia  and
exercises  similar  functions.  It is however  pertinent  to
observe  that the phraseology employed in section 15 of  the
Indian  Act  is different from that used in  the  Australian
statute.   The  Indian  statute  has  constituted  different
bodies  for different purposes. An Industrial  Tribunal  has
been constituted
(1) 25 C.L.R.
63
492
only  to discharge one function of adjudication.  It is  not
described as an arbitral tribunal.  The Act has avoided  the
use  of the word "arbitration" either in    preamble  or  in
any of its relevant provisions though the determination  has
been named as an award.  In these circumstances it is unsafe
to seek any guidance from observations made in this case.
    The  next case to which reference was made is  Rola  Co.
(Australia)  Proprietary Ltd. v. The Commonwealth (1).   The
question  here  was  whether the  Women's  Employment  Board
constituted under the Women's Employment Act, 1942, did  not
exercise  the  judicial power of the Commonwealth.   It  was
held that the Board  exercised functions which were arbitral
in  character. Emphasis was laid on a passage  occurring  in
page 198 of the report which reads as follows :--
    "An industrial award lays down rules of conduct for  the
future.  It does not purport to ascertain and enforce exist-
ing rights; it is directed to the creation of new rights. It
is urged on behalf of the plaintiff that a determination  of
the Committee does not create a rule of conduct binding  the
parties  for the future, but that it authoritatively  deter-
mines a possibly controverted question of fact and that  the
making of such an authoritative determination is necessarily
an  exercise of judicial power.  Reference is made   to  the
frequently  quoted  statement of Griffith  C.J.  in  Huddart
Parker  &  Co. Pty. Ltd. v. Moorehead (2), approved  by  the
Privy  Council  in Shell Co. of Australia  Ltd.  v.  Federal
Commissioner of Taxation (8):__
"I  am  of opinion that the words  'judicial  power'  as
used in section 71 of the Constitution mean the power  which
every  sovereign authority must of necessity have to  decide
controverises between its subjects or between itself and its
subjects,  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 authori-
tative decision (whether subject to appeal or not) is called
upon to take action."
 (1) 69 C.L.R. 185.                 (2) a C.L.R. 330 at 357.
                     (3) [1931] A.C. 275.
    493
    Reg. 5C gives Committees power. to decide  controversies
between subjects relating to their rights and the regulation
purports to make those decisions binding and authoritative.
    I  am not satisfied that the words of Griffith C.J.  are
properly  interpreted when it is said that they mean that  a
power  to  make binding and authoritative  decisions  as  to
facts is necessarily judicial power.  I direct attention  to
the  concluding words--" is called upon to take action."  In
my opinion these words are directed to action to be taken by
a tribunal which has power to give a binding and  authorita-
tive  decision.  The mere giving of the decision is not  the
action  to which the learned Chief Justice referred.   If  a
body  which  has power to give a binding  and  authoritative
decision is able to take action so as to enforce that  deci-
sion,  then,  but  only then, according  to  the  definition
quoted,  all  the attributes of judicial power  are  plainly
present.  I  refer to what I say more in  detail  hereafter,
that  the  Privy Council, in the Shell case  (1),  in  which
approval was given to the definition quoted, expressly  held
that a tribunal was not necessarily a Court because it  gave
decisions (even final decisions) between contending  parties
which affected their rights.
    In Huddart Parker's case (2), Isaacs 1. referred to  the
statement of Palles C.B. in R.v. Local Government Board  for
Ireland  (3) "to erect a tribunal into a 'Court' or  'juris-
diction',  so  as to make its determinations  judicial,  the
essential  element  is  that it should have  power,  by  its
determination  within jurisdiction, to impose  liability  or
affect rights." "By this," said the learned Chief Baron,  "I
mean that the liability is imposed, or the right affected by
the determination only, and not by the fact determined,  and
so  that  the  liability will exist, or the  right  will  be
affected,  although the determination be wrong in law or  in
fact.   It  is  otherwise of a ministerial  power.   If  the
existence  of such a power depends upon a  contingency,  al-
though  it  may be necessary for the  officer  to  determine
whether
 (1)  [1931]  A.C. 275.                (2) 8 C.L.R.  330  at
383.
               (3) [1902] 2 I.R. 349 at p. 373.
494
the  contingency has happened, in order to know  whether  he
shall  exercise the power, his determination does not  bind.
The  happening  of the contingency may be questioned  in  an
action  brought  to  try the       the act  done  under  the
alleged exercise of the power.  But where the  determination
binds, although it is based on an erroneous view of facts or
law,  then the power authorizing it is judicial.   There  we
get a modern use of the term 'judicial power'." This  state-
ment of the characteristics of judicial power looks to what,
in Waterside Workers' Federation of Australia v.  Gilchrist,
Watt & Sanderson Ltd.(1), Isaacs and Rich JJ. referred to as
the  creation of instant liability in specified  persons  as
distinct from laying down a rule or standard of conduct  for
the future.
   The decision of an ordinary Court  that B is bound to pay
money  to  A applies a pre-existing standard of  rights  and
duties not created by the Court itself, with the result that
there is an immediately enforceable liability of B to pay to
A  the sum of money in question.  The decision of  the  Wom-
en's  Employment Board does not create any  such  liability,
nor  does  the  determination of a  Committee  of  Reference
create any such liability.  In order to impose an immediale-
ly enforceable liability upon any employer, for example,  to
pay wages to a particular female, it would be necessary  for
the female or some person on her behalf (see reg. 9A) to sue
in  a court of competent jurisdiction. If such a  proceeding
succeeded  there  would then be a liability created  by  the
determination of the court. such a proceeding the determina-
tion of the Committee of Reference would be evidence of  the
facts to which it related, but that determination would  not
in  itself create "liability." The concluding words  of  the
passage  quoted above at once distinguish the  present  case
from the Australian case.  The award given by an  Industrial
Tribunal in respect either of bonus or higher wages, etc. is
enforceable by its own force and by the coercive
machienary of the  Act and it is not merely a declaration
of  a  character  that furnishes a cause of  action  to  the
employee to bring a suit on its foot to recover the
C.L.R. 482, 512.
    495
wages.   An arbitral tribunal's decision cannot be  enforced
unless  it has the sanction of a Court of justice behind  it
but  the award of the Tribunal is enforceable under the  Act
itself  by the coercive machinery provided therein.   It  is
the  terms  of the award that are enforceable  and  not  the
terms of the order made by the Government.  It is the breach
of  the  terms of the award that is punishable and  not  any
breach  of  Government's order.  The  Government  itself  is
bound  to  declare the award binding and it  has  no  option
whatsoever  in  the matter.  It is no doubt  true  that  the
tribunal  has  not only to decide the  existing  rights  and
liabilities  of  the parties and it can lay  down  rules  of
conduct  for the future but it does so because by law it  is
authorised to do so. Its decision carries the sanction  with
it.   The Government is bound to give effect to it  and  the
statute  enforces  it by coercive machinery.   In  my  view,
therefore,  this  decision  again has no  relevancy  to  the
present case.
    The third case to which reference was made is Shell  Co.
of Australia v. Federal Commissioner of Taxation (1).   That
was  an income-tax matter and the decision has been  consid-
ered  in  an earlier part of this judgment.   Reference  was
also  made to Mohammad Ahmad v. Governor-General in  Council
("), in which it was held that an improvement trust was  not
a  civil Court subordinate to the High Court  under  section
115 of the Code of Civil Procedure.  That has no bearing  to
the  matter in issue here.  Similar point was  discussed  in
Hari v. Secretary of State for India (3).  Labour  Relations
Board  v. John East Iron Works Ltd. (4) is a  Canadian  case
and  the  decision  proceeded on the same lines  as  in  the
Australian cases.
    Mr. Sen appearing for the respondents placed reliance on
O'Connor  v.  Waldron (5).  The relevant passage  occurs  at
page 81 which runs thus :-
    The law as to judicial privilege has in process of  time
developed.  Originally it was intended for the protection of
judges sitting in recognised Courts of
(1) [1931] A.C. 275.               (3) I.L.R. 27 Bom. 424.
  (2) I.L.R. 1946 Lah. 16.         (4) A.I.R. 1949 P.C. 129.
                            (5) [1935] A.C. 75,
496
Justice  established as such. The object no doubt  was  that
judges  might exercise their functions free from any  danger
that they might be called to account for any words spoken as
judges.   The doctrine has been extended to tribunals  exer-
cising functions equivalent to those of an established Court
of  Justice.   In their Lordships' opinion the  law  on  the
subject was accurately stated by Lord Esher in Royal Aquari-
um etc. Ltd. v. Parkinson (1), where he says that the privi-
lege  applies wherever there is an authorized inquiry which,
though  not before a Court of Justice, is before a  tribunal
which has similar attributes...This doctrine has never  been
extended  further  than to Courts of Justice  and  tribunals
acting  in  a manner similar to that in  which  such  Courts
act'"
    The learned counsel contended that the. word  "tribunal"
in article 136 could only have reference to those  tribunals
which  exercise functions equivalent to that of a  Court  of
Justice. I have no hesitation in holding that the Industrial
Tribunal  has similar attributes as that of a Court of  Jus-
tice in view of the various provisions to which I have  made
reference.  Reference  was  also made  to  certain  passages
occuring in pages 422 and 428 of Toronto Corporation v. York
Corporation (2).  That was a case of the Municipal Board  of
Ontario.  It  was held there that the Board  was  merely  an
administrative  tribunal.  Next reliance was placed on  R.v.
National  Arbitration Tribunal, Ex-parte Horatio Crowther  &
Co.  Ltd.(3).  That dealt with the powers of  tile  National
Arbitration  Tribunal.  In my opinion this citation also  is
not of much assistance.
    It  was again urged by Mr. Alladi that the word  "tribu-
nal"  was introduced in the article to provide for cases  of
tribunals  like the Board of Revenue.  The  suggestion  does
not appear to be sound, because a Revenue Board has all  the
attributes of a Court of justice and falls within the  defi-
nition  of the word "Court" in matters where it  adjudicates
on rights of parties.
 (6) [1892] 1. Q.B. 431.           (7) [1938] A.C. &15.  (8)
[1947] A.E.R. 693.
     497
      The word "tribunal" has been used in previous legisla-
tion  in a number of statutes and it is difficult  to  think
that the Constitution when it introduced this word in  arti-
cle  136 intended to limit its meaning to only those  tribu-
nals which though not described as Courts strictly speaking,
were  discharging  the same or analogous functions  as  were
being discharged by Courts.
      For  the reasons given above I am of the opinion  that
the  word  "tribunal"  in article 136 has  to  be  construed
liberally  and  not in any narrow sense  and  an  Industrial
Tribunal  inasmuch as it discharges functions of a  judicial
nature in accordance with law comes within the ambit of  the
article  and from its determination an application for  spe-
cial leave is competent.
The  question now to determine is whether the  exercise
of  overriding powers of this Court can be justified on  any
ground  whatsoever  in the present case. As I  have  already
said, exceptional and extraordinary powers of this character
can  only be justifiably used where there has been  a  grave
miscarriage of justice or where the procedure adopted by the
Tribunal  is  such that it offends against  all  notions  of
legal procedure.
     Dr. Bakshi Tek Chand for the petitioner-bank urged four
grounds  justifying exercise of the special jurisdiction  of
this Court.  Firstly, he contended that the word "victimiza-
tion" used in clause 18 of the reference had been interpret-
ed  in  such a manner by the Tribunal that  it  had  usurped
jurisdiction to decide disputes which were never referred to
it.   In my view this is not a matter which can justify  the
exercise of the powers under article 136. This Court is  not
a  mere  Court of error.  The word "victimization"  has  not
been  defined in the statute and is not in any sense a  term
of  law  or a term of art. It is an  ordinary  English  word
which  means that a certain person has become a  victim,  in
other  words, that he has been unjustly dealt with.  It  was
argued  that  the  word has acquired a  special  meaning  in
regard  to  industrial disputes and connotes  a  person  who
becomes  a victim of the employer's wrath by reason  of  his
trade union activities and that the word cannot relate to  a
person  who has been merely unjustly dismissed.  Be that  as
it may.
498
The  determination of the Tribunal has not  been  materially
affected  by  this interpretation of the word to  any  large
extent and that being so, it does not call for the  exercise
of the special power.
    The second ground urged was that the Tribunal has  erred
in  ordering reinstatement of persons who were guilty of  an
illegal strike.  It was contended that section 23 (b) of the
Act has been wrongly construed by it and as a result of this
misconstruction  persons who were guilty of a wrong and  who
could  not  have been reinstated have  been  reinstated.  In
brief,  the  argument was that under section  23(b)  when  a
matter  has  been referred to a tribunal in  respect  of  an
earlier  strike,  any  strike during the  pendency  of  that
dispute  is  an illegal strike and that  was  the  situation
here. The employees of the bank had struck work in December,
1948.   That  dispute  had been referred  to  an  Industrial
Tribunal.   It was during the pendency of that dispute  that
another strike took place which led to the dismissal of  the
employees who have now been reinstated by the present award.
The  Calcutta High Court has held that a strike  during  the
pendency  of the period of truce and during the pendency  of
an  earlier dispute before a tribunal is illegal even if  it
is brought about as a result of fresh and new demands  which
are not covered by the earlier dispute.  One of the  members
of the Tribunal thought that the decision laid down the  law
correctly  on the point, but the other member  thought  that
the  decision was erroneous. Both of them,  however,  agreed
that whether the strike was legal or illegal that point  did
not  in any way affect the question that they had to  decide
under  issue 18.  The consequences of an illegal strike  are
laid  down  in the Act and certain  penalties  are  provided
therein.   The  Act nowhere states that  persons  guilty  of
illegal  strike  cannot be reinstated.  Be that as  it  may.
The reference to the Tribunal was made by the Government  in
respect of an illegal. strike and the Tribunal was bound  to