No Acts & Articles mentioned in this case
~.C.R. SUPREME COURT REPORTS 459
a sound basis for invoking the discretion of this Court
in granting special leave. Generally speaking, this
Court will not grant special leave, unless it is shown
that exceptional and special circumstances exist, that
substantial and grave injustice has been done and that
the case in question presents features of sufficient
gravity to warrant a review
of the decision appealed
against.
Since the present case does not in our opinion
fulfil
any of these conditions, we cannot interfere w.ith
the decision of the High Court, and the appeal must be
dismissed.
Appeal dismissed.
Agent for the appellant:
S. P. Varma.
Agent for the respondent: P, A. Mehta.
THE BHARAT BANK LTD., DELHI
v.
EMPLOYEES OF THE BHARAT BANK LTD.,
DELHI
and
THE BHARAT BANK EMPLOYEES' UNION,
DELHI
UNION OF INDIA: INTERVENER.
(SHRI liARILAL KANIA C.J., SAIYID FAZL ALI,
PATANJALI SASTR,I, MEHR CHAND MAHAJAN,
and M UKHERJEA J J.]
Conititution of In&ia, A.rt. 136-Siiprc~ Court-Appellate
Jurisdiction-Award of Industri~ Tribw1al-Whether appealable-
l950
Pritam Singh
V;
The Stal<J
Fa:t .UiJ.
1950
May 26.
SUPREME COURT REPORTS (1950]
1950 Applicatio1' f<Yr special leave-Maintainability-Nai!tre of functiois
of Industrial. Tribmial-Industrial Di•putes Act, 19'17, ss. 8, 16-
Bhural Ba"k Ud. Case heard by Bench of three memb,rs.
v.
Held per KANIA C.J., FAZL ALI, and MAHAJAN J,T,
Bh~;!loi::=~ 'f.d. (MUKHERJEA and PATANJALI SASTRI J.J. dissenting).-The func
tions and duties
of the Industrial Tribunal constituted under the
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 has
jurisdiction to entertain an application for leave to appeal ft·om
a decision of the Tribunal, even though It will be very reluctant
to entertain such an application. ·
Ka~ia C.J.
Per 'MUKHERJEA J. (PATANJALI SASTRI J. concurring).-An
Industtial Tribunal functioning under the Industrial Disputes Act
is
not
a judicial tribunal. The nature of the i!eterminations made
by
it 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 exercised fully and effectively in respect of them and such
determinations are therefore ontside the pur\'iew of Art. 136 of
·the Constitntion. Even assuming that the Court had jurisdiction
to entertain an appeal, 'the present case was not a fit one for enter~
taining an appeal from the determination of the Tribunal.
[On the merits KANIA C.J., FAZL ALI, 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.)
APPELLATE JURISDICTION: Civil Appeal No.
XXXIV of 1950.
Appeal by special leave from an Award of the
All-Ind1a Industrial Tribunal (Bank Disputes) Bom
bay, dated 1st January, 1950. The facts of the case
are set out in the judgment.
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. Fa1ll Ali, Mahajan and Mukherjea JJ.
S.C.R. SUPREME COURT REPORTS 461
in this case. As the views in those judgments in 1950
respect of the nature of the duties and functions of
the Industrial Tribunal do not show agreement I Bharat Bank r.u.
consider it necessary to add a few words of my own. Emf>l;·.ces
01
In my opinion, the functions and duties of the Bharat ia111, cu.
Industrial Tribunal are very much like those of a body
discharging j\;1dicial fuqctions, although it is not -a /{auia c .f.
Court. The rules framed by the Tribunal require
evidence
to be taken and witnesses to be examined,
cross-examined
and re-examined. The Act constitut-
ing
the Tribunal imposes penalties for
incorrect state-
ments
made before the Tribunal. While the powers
of
the Industrial Tribunal in some respects are differ-
ent 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
reinstatemwt of a workman) does not
possess in
the discharge of its duties it is essentially
working as a judicial body.
The fact that its deter-
mination has to be followed by an order df the Govern-
ment which makes the
award binding, or that in cases
where
Governme_nt is a party the legislature is. per-
mitted
to revise the decision, or that the Govern-
ment is empowered to fix the period of the
operat_ion
of the award do not, to my mind, alter the nature
and character of the functions of the Tribunal. Hav-
ing considered 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 2.rtide 136 the
Court hris jurisdiction to entertain an application for
leave to appeal against the decision
of such a body .. It
is not disputed that the
Court has power to issue writs
of
certiorari and prohibition in
re.3pect 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 jurisdic
tion 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 Tribunal, this Court
will be very reluctant to entertain such an application.
462 SUPREME COURT REPORTS [1950]
1950
As regards the merits, I do not think this is a case
Bharat Bank Ud. 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.
v. '
Eu1filoyecs of
Bharat B1111k Ltd.
Fazl AliJ. F AZL Au 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
of 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 final
order." Article 133 deals with appeals in civil matters
and the same words are used here also. Article 134
deals with appeals
iri 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 "sentence" 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." Certain other words are also
used in
the article which seem to me to have a special
significance, these being
"determination," "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 dis
charge those functions. This is necessary because
S.C.R. SUPREME COURT REPORTS 463
I take it to be implied that before an appeal can lie to 1950
this Court frcm a tribunal it must perform some kind Bl B k Ud.
1
of judicial function and partake to some extent of the· wrat /n
character of a Court. Employees of
Now there can be no doubt that the Industrial Bharat Bank ua.
Tribunal has, to use a well-known expression, "all the
C
· · · Fazl Ali J.
trappings of a ourt " and performs functions wh1oh
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 dis-
covery, inspection, granting adjournment, reception of
evidence taken on affidavit, enforcing the attendance
of 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 address-
ing
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 func
tion 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 f acie, therefore, a Tribunal like
this cannot be excluded from the scope of article 136,
but before any final conclusion can be expressed on the
subject certain contentions which have been put
forward on behalf of the respondents have to be dis
posed 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
1950
Bharat Bani: Ud,
v.
E111j,loyees of
Bharat 8.?nk Ud
Faz/ Ali J.
464 SUPREME COURT REPORTS [1950J
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 ques
tions which arose before the Privy Council in Moses v.
Parker, Ex parte 1'1oses (') arise in this case, these
questions
being:-
(1) How can the propriety of the Tribunal's
deGision be tested on appeal, and
(2) \Vhat 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 woul_d doubtless
be met somehow." This, in my opinion, i? a suffi
cient answer
to the difficulty 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 Moneylenders 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 different from the law which an ordinary
Court of
justice administers. The appellate Court, therefore,
can
at least see that the
rules <iccortling 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 ad judicatjQn of the Tribunal has not
all the
attributes 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 Disputes Act. It is said that the ad-.
judication is really in
the nature of an advice
or report
which is not effective until made so by the Govern
ment. It appears that a similar objection was raised
in Rexv. Electricity Commissioners, London Electricity
(1) (1896] A.O. 2~a.
j
')
v
" -
S.C.R. SUPREME COURT REPORTS 465
joint Committee Co. (1920) Ex Parte (
1
)
for the
pur
pose 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 neces~ary, 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 modifications. 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
consis
tent 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
Parlia
ment 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 conten-
tion
......... 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 Transport 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
authority 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 Parliament. The authorities are to the
contrary."
(1) {1924) 1 K.D. 171 .•
1950
Bharat Bank Ud.
v.
Empioy"<'S of
Bharat Ba1ik Ltd.
Faz/ Ali J.
466 SUPREME COURT REPORTS [1950]
1950 It is well-known that a writ of certiorari can issue
81
-;;-
1
,
/ 1
only against an order of a judicial or <JUasi-judicial
"""' v~'" ,,, . tribunal and if it is permissible for the High Court to
Employees of issue a writ of certiorari against an Industrial Tribunal,
Bharat Ba"k Ltd. which fact was not seriously disputed before us, I find
Faz1 Afi J.
it difficult 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 In
dustrial Disputes Act, 1947, in cases where the appro
priate Government is not a party to the dispute, aJI
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 Gov
ernment shall by order in writing declare the award to·
be bmding ........ "
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 adjudi
cation 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
party to the dispute and in
Its opinion it would
be inexpedient on public grounds to give effect to the
whole or any part of the award, it shall on the first
available opportunity lay the award together with the
statement of its reasons for not making a declaration
as aforesaid before the Legislative Assembly of the
Province, or where the appropriate Government is the
Central Government, before the Central Legislative
Assembly,
and shall, as soon as may be, cause to be
moved
therein a resolution for the consideration of the
S.C.R. SUPREME COURT REPORTS 467
award, and the Legislative Assembly may. by its re
solution, confirm, modify, or reject
the
award."
. This proviso was relied upon by the respondents
to show that the right to appeal from the award could
not have been contemplated in
any case. But the Act
itself makes a distinction between cases in which
the
Government is a party and those in which the Govern
ment is not a
party. The proviso relates to a very
special
type of case and as at present
advise~ I do not
wish
to express any opinion as to whether an appeal
lies to
this
Court or not in such a case, but, in my
judgment, where the Government has only to declare
the award to be binding, an appeal shall lie.
It is necessary here to say a few words as to the
scope of
the appeal. As was pointed out by this
Court
in Pritam Singh v. The State (1), the power under
article 136 of
the
Constitution being a special power is
to be exercised only in special cases. The rule so laid
down is
bound to restrict the
scope of the appeal in
practice in
almost all the cases which fall under article · 136. . But in some cases a limitation will be imposed
on the scope of the aP.peal by the very nature of the
case
and of the
tribunal from which an appeal is
sought
to be brought, and a case under the Industrial
Disputes Act seems to
be an example of such a case.
Dealing now with
the merits of the appeal, I am
not prepared to h9ld that this is· a proper case for
interference
with the adjudication of the Tribunal.
The
pow.er of this Court was invoked by the appellants
on four grounds .. These grounds have been elaborately
examined
by
Mahajan J. and two of them have been
pronounced
to be wholly inadequate for justifying
om:
interference. My view with regard to these two grounds
is identical with that of Mahajan J. and I do not wish
to add to ~hat he has already said· on the subject.
The remaining two· grounds also are, in my opinion,
wholly insufficient
to
justify the exercise of our special
power under article 136. One of these grounds is that
the award of the Tribunal -is based on no evidence
whatsoever. I do not, however, find that this ground
(1) (1950] S.C.R. •ss.
60
1950
Bha1·at lJanh l.ld
v.
E111p/oyc•s of
Bltaraf Rani: Uri
Faz/ Ali J.
468 SUPREME COURT REPORTS [1950]
1950 was urged in this form in the application for special
Bl H k Ud
leave to appeal to this Court. All that was intended to
iarat an , h
v be urged wast at the appellants wanted to adduce
Empzo;ees of evidence but were not allowE!d to do so. From fhe
Bha"" Hank ua decision of the Tribunal however, it appears that the
evidence that was shut out related to one isolated point
Faz! AhJ. only and the Tribunal might well have been justified
in
not allowing evidence to be admitted on a point
which in its opinion
had no direct bearing on the issue
before them. After hearing
the respondents on this
particular point, I am not disposed to hold that the
Tribunal has committed such an error as would justify
the interference of this
Court.
The last ground urged is that the award has been
signed
by only two members of the Tribunal though
it originally consisted of three persons and though the
entire hearing of the dispute had taken place before
all
the three persons. This objection does not appear
to me to be fatal to the jurisdiction of the Tribunal,
because under section 8 of the Act it is not obligatory
on
the Government to appoint a new member to fill a
vacancy if one of
the members ceases to be available
at any time during the proceedings. Under that section,
if the
Chairman ceases to be available, the Government
must appoint his successor, whereas if a member ceases
to be available the Government
may or may not ap
point any one to fill his place. [n the present case,
our attention was drawn to some correspondence which
shows
that one of the members was called upon to act
as.a member of another Tribunal and the
award in
question was pronounced after informing the Govern
·ment of the procedure which the Chairman and the
remaining members intended to adopt.
In the view I have taken, this appeal must fail,
and I would accordingly dismiss it with costs .
• '1ahajanJ. MAHAJAN J.-This is an appeal by special leave
from
the determination of an industrial dispute by the
Industrial
. Tribunal appointed under Ordinance VI
of 1949.
Bharat Bank Limited,· Delhi, the appellant, is a
company registered under the
Indian Companies
Act.
S.C.R. SUPREME COURT REPORTS 469
Its employees made certain demands and as a result 1950
of an unfavourable response from the bank it appears Bl -B
k k th 9 h M h 19 9 Th
1arat ank Ucl.
that they struc wor on e t arc , 4 . e , v.
bank in its turn served notices on them to resume E111p1oy.-cs of
work and .proceeded to discharge a number of them Bharat Bank IM.
between the 19th March and 24th March as they failed --:-
to do so. The Central Government constitued a Tri-Malia;m• J.
bunal consisting of three persons for the adjudication
of industrial disputes in banking companies under
section 7
of the Industrial Disputes Act
(XIV of 1947).
The disputes mentioned in schedule II of the notifica-
tion
were referred under section
10 of the Act to this
Tribunal. Item
18 of this schedule reads as follows:-
, 'Retrenchment and victimization (Specific cases
to be cited by employees)."
The dispute under this item between the Bharat
Bank and its employees was heard by the Tribunal at
Delhi and its award was made on the 19th January,
1950. It was published in the Government of India
Gazette dated 4th February, 1950, and was declared
to
be binding for a
period of one year. The award of
the Tribunal was signed by two out of its three mem
bers.
A preliminary objection ·was raised on behalf of
the Central Government as well as on behalf of the
respondents that this Court had no jurisdiction to grant
special leave to appeal against the determination of an
Industrial Tribunal inasmuch as it did not exerdse
the judicial powers of the State and that its deter
mination was not in
the nature of a judgment, decree _'or order-of a Court so as to be appealable. This being
the first case in_which special leave was granted from
the_
determination of an Industrial Tribunal, it is neces
sary Jo examine the provisions of the Constitution
dealing with
this matter and if possible,
to define the
limits.of the juri,sdicUon of this Court under article 136.
This article.is in th,ese terms :-
" (1) Notwithstanding anything in this Chapter,
the Supreme Court may, in its discretion, grant special
leave to appeal
f.rom any judgment, decree, determina
tion, sentence or
order in any cause or matter passed
1950
470 SUPREME COURT REPORTS [1950]
or made by any court or tribunal in the territory of
India.
l
hart1t Ban!i Ud.
v. (2) Nothing in clause (1) shall apply to any
Jomployees of judgment, determination, sentence or order passed or
Btwat Bank Ltd. made by any court or tribunal constitutj!d by or
under
any law relating to the Armed
Forces."
The article occurs in Chapter IV of Part V of the
Co11stitution: "The Union Judiciary." Article 124
deals with the establishment and constitution of the
Supreme Court. Article 131 confers original jurisdiction
on
this
Court in certain disputes arising between the
Government of
India and the
States etc. Articles 132
and 133 deal with the appellate jurisdiction of the
Court in appeals from High Courts within the territory
of India in civil matters. By article 134 limited right
of appeal in criminal cases has been allowed. The
Judicial
Committee of the Privy Council which was
the highest Court of appeal for India prior to 10th
October, 1949, was not a Court of criminal appeal in
the sense in which this Court has been made a Court
of criminal appeal under article 134. It could only
entertain appeals on the criminal side in exercise of the
prerogative of the King. Article
135 empowers this Court to hear all appeals which under existing laws
could be heard
by the Federal
Court of India. By the
Abolition "of Privy Council Jurisdiction Act, 1949,
which came into force on the 10th October, 1949, all
the powers
that were possessed by the Judicial Com
mittee of the
Privy Council in regard to cases or matt
ers arising in India became exercisable by the
Federal Court of India wheth11r thos.e powers were
exercisable
by reason
of statutory authority or under
the prerogative of the King. The powers of the Judicial
Committee were conferred upon it by the Judicial
Committee Act, 1844 (7 & 8 Viet., C. 69). Appeals lay
to His Majesty in Council from judgments, sentences,
decrees
or orders of any
Court of justice within any
British colony or possession abroad. Closely following
article
135 which confers all the powers of the Judicial Committee on the Supreme Court comes article 136.
The language employed in this article is very wide
and is of a comprehensive . character. Powers given
,..: . S.C.R; SUPREME.COURT REPORTS .. 471·
-
' . .
are of an overriding nature. Th~ .. article commences· 1950
· with.the words "Notwithstanding anything in this
8
J, at-;; k ua·
Chapter." These words indicate that the intention of ar v":n . ·
the Constitution was to disregard in extraordinary · EmpZoym of
cases the limitations contained in the previous articles Bharat Bonk u.1. ·
-0n this· Court's power to entertain appeals. These
articles dealt
with the right of appeal against final.
Mahajan J.
decisions of.High_ Courts within the territory of India.·
Article 136, however, .overrides that qualification and·
empowers this Court to grant special leave even in cases
.. where the judgment has not been given by-a High
· Court but ha~ been given by any Court in the territory
of India ; in other words, it contemplates grant, of·
special leave in cases where a Court subordinate. to a.
High Court.has passed or made any order and the
situation demands that the order should_ be quashed·
or reversed even without having recourse to the usual ·
procedure provided by l:iw in the nature of an appeal,·
etc. The .word"order" in ·article 136 has not been'
qualified
by the word
"final." It is clear, therefore, that
the power to grant special leave under this article·
against an order of a Court could be exercised with
respect to . interlocutory orders also. · Another new
feature introduced
in article 136 is
. the power given ·
to grant special leave against orders· and determina
tions etc. of any tribunal in the territory of India.·
This word did not find place in the Judicial·
Committee Act; where the phrase used was "a Court:
-of justice."-It is the introduction of this new expres
sion
in article 136 .that has led to considerable argu-
·
ment as to its scope. Another expression . that did not :
find place in
theJudiciaI
Committee Act but has been ·
introduced in article 136 is the word "determination."
A question has been raised as to the meaning to be .
. given to these words in the article. On the one hand, ·
it was contended that the words "determination" and '
"tribunal" . were introduced in the article in order to ·
bring within the scope of the appellate jurisdiction of ·
this Court all orders of tribunnls of different varieties ·
and descriptions. On the other hand, it was said that ·
the words "determination" and "tribunal" were
added in.the article. by way of abundant caution and ·
1950
Bharat Batik Ltd,
v.
EnijJloyees. of
Bharat Bank Ltd.
472 SUPREllIE COURT REPORTS (1950]
the intention was that if a tribunal exercised the judi
cial powers of the State and the decision was passed in
the exercise
of that power, this
Court as the highest
judicial Court in the Republic would have power, if it
considered, necessary in the ends of justice, to grant
special leaYe. Clause (2) of article 136 excludes the
jurisdiction of this Court in. respect of military Courts
or Tribunal. It is interesting to observe that in
articles 138, 139
and
140 the Constitution has conferred
powers on Parliament for
further enlargement of the
powers of
this Court.
Two points arise for determination in
this case: (I)
whether the word
" tribunal." in this article has been
used in the same sense as "Court," or whether it has
been used in a wider sense,
and (2) whether the word "determination " in the article includes within its
scope the determinations made by Industrial Tribunals
or other. similarly constituted bodies or whether it has
reference only to determinations of a Court or a
tribunal of a purely judicial character. It was
conceded
by the learned counsel appearing for the Central Government, Mr. Alladi Krishnaswami Aiyar,
that if any tribunal, whether ad!Jlinistrative, domestic
or quasi-judicial, acts in excess of its jurisdiction,
then it can be controlled by the High Courts under
the powers conferred on them by article 226 by
the issue of a writ of ·certiorari. It was said that
if the Industrial Tribunal in this case could be proved
to have trespassed beyond the limits of its statut
ory jurisdiction, then the remedy lies elsewhere and
not by a petition of special leave under article 136.
Mr. Alladi's contentions may be briefly summarized as
follows: ( 1) The expression " tribunal " means seat of a
judge,
or a court of justice. Its necessary attribute is that
it can give a final
·judgment between two partie§ which
carries· legal sanction by its own force. That the word
" tribunal " in juxtaposition to the word " court "
could only mean a tribunal which exercised judicial
functions of
the State and did not include within its
ambit a tribunal which had quasi-judicial or adminis
trative powers. (2) The kinds of orders against which
special leave to appeal could be given
under article 136
-
S.C.R. SUPREME COURT REPORTS -173
have to be of the same nature as passed by a Court; 1950
in other words, it was said that unless there was a
Bhnrat Bank Ud.
judicial determination of a controversy between two v.
parties, the order would not be appealable. That in E:11p1oyccsof
the case of an Industrial Tribunal what gives binding Bharat Bank Ud.
force to the award is the declaration of the government,
that the spark of life to it is given by that declaration MalzajanJ.
and without that, the award of the Tribunal is lifeless
. and lias no enforceability and hence cannot be held. to
be of an appealable nature. It was further said that
in cases between the Government and its employees, by
the procedure prescribed in the Act the award co.uld
also be rejected, and that being so, by its own deter
mination a tribunal could not impose a liability or affect
rights. Dr. Bakshi Tek Chand, appearing for the bank,
on
the other hand argued that whenever a tribunal,
whether exercising judicial or quasi-judicial functions,
determined a
matter in a judicial manner, then s.uch a
determination is within article 136.
It was said that
an Industrial Tribunal has no administrative or execu
tive functions,
that its duty is to adjudicate on an
industrial dispute, i.e., to act as a Judge, on certain
kinds of disputes between employers
and employees
and that its functions are of a judicial nature, though
the ambit of the powers conferred is larger than that
of an ordinary
Court of law inasmuch as it can grant
reliefs which no Court of law could give, but that is
because of
the powers conferred on it by law. It was
argued
that the plain words of the article should not
be given a narrow meaning when
the intention of the Constitution was to confer the widest power on this
Court. It was further contended that as between
private employers and employees and even in certain
cases between Government and its employees the deci
sion of
the Tribunal was binding on the Government
and Government had no
power either· to affirm,
modify
or reject it. All that it was authorised to do was
to announce it and by its declaration give it enforce
ability; that fact, however, could not affect the question of appealability of the determination under article
136. It was finally argued that powers should be exer
cised
by this
Court wherever there is a miscarriage
474 SUPREME COURT REPORTS [1950]
of justice by a determination of any tribunal
and that if the intention of the Constitution by use of
Bharat Bc:nk Ltd.
v. the word "tribunal" was in the same sense as "court,"
t950
Emptoy<"CS of then it was not n.~cessary to import it in article 136,
Bharat Ban« u.i. because all tribunals that exercise judicial functions
AfahafanJ
fall within the definition of the word "court" though
they may not have been so described.
After considerable thought I have reached
the
con
clusion that the preliminary objection should be over
ruled. I see no cogent reasons
to limit the plain words
of the statute and to place a narrow interpretation on · words of widest. amplitude used therein. In constru
ing the articles
of the Constitution it has always to be
remembered
that India has been constituted into a
sovereign democratic republic in order
to ensure justice
to all its citizens. In other words, the foundations of
this republic have been laid on the bedrock of justice.
To safeguard these foundations so that they may not
be undermined by injustice occurring anywhere this
Court has been constituted. By article 32 of the Con
stitution the Court is empowered to see that the funda
mental rightg conferred on the citizens by the Consti
tution are not in any way affected. By article 136 it
has been given overriding power to grant special leava
to appeal against orders of courts and tribunals which
go against
the principle of natural justice and lead to
grave miscarriage of justice. The exercise.
of these
powers could only have been contemplated in cases
which affect
the rights of people living within the ter
ritory
of India in
respect of their person, property or
status. The question, therefore, for consideration is
whether the jurisdiction conferred
by use of
unambigu
ous phraseology and by words which have a plain
grammatical meaning and are of the widest amplitude
should be limited
and restricted on considerations
sug
gested by Mr. Alladi. The construction suggested by the
learned counsel, if accepted, would in the first instance
make the use of certain words in the article unnecessary
and redundant and would run counter to the spirit of
the Constitution. It must be presumed that the drafts
men of the Constitution knew
well the fact that there
were a number
of tribunals constituted in this country
S.C.R. SUPREME COURT REPORTS 475
previous to the coming into force of the Constit'ution
1950
which were performing certain administrative, quasi-niwat Srtnk 1.td.
judicial or domestic functions, that some of them had v.
even the trappings of a Court but in spite of those E111ptoym of
trappings could not be given that description. It must Rhal'at llaulc Ud.
:~~r~eolr~~~mf~~ttht~atth~heCo~~~~~~io~~~r~:eri~1 '~~1~~ u,,,:j''" J.
country had held that all tribunals that discharged
judicial functions
fell within the definition of the
expression
"Court." If by the use of the word
" tribunal " in article 136 the intention was to give it
the same meaning as "Court," then it was redundant
and unnecessary to import it in the article because, by
whatever name described, such a tribunal would fall
within the definition of the word " Court." The word
"Court" has a well-known meaning in legislative
history
and practice.
As pointed out in Halsbury's Laws of England,
the word
"Court " originally meant the King's Palace
but subsequently acquired the meaning of (1) a place
where justice was administered, and (2) the person
or
persons who administer it. In the Indiian Evidence Act
it is defined as including all judges and magistrates
and all persons except arbitrators legally authorized to
take evidence. This definition is
by no means exhaus
tive
and has been framed only for the purposes of the
Act. There can be
no doubt that to be a
Court, the
person or persons who constitute it must be entrusted
with judicial functions,
that is, of deciding litigated
questions according to law. However,
by agreement
between parties arbitrators may be called upon to
exercise judicial powers
and to decide a dispute accord
ing to law
but that would not make the arbitrators a
Court.
It appears to me that
befo,re a person or persons
can be said to constitute a Court it must be held that
they derive their powers from the State and ii.re exer
cising
the judicial powers of the State. In R. v. London
County Council (
1
), Saville L. J. gave the following
meaning to the word
"Court " or " judicial auth
ority":-
(1) [193t) 2 K.B. 215.
61
SUPRE?IIE COURT REPORTS (1950)
,·
. 1950 ' "It is not necessary tha(it should be a Court in
· . the sense that this Court is a Court, it is enough if it is
Bharat Bank Lid, • • ft h · 'd · d' · 1 f t' ·
v. exercising, a er earmg ev1 ence, JU 1c1a unc 10ns 1n
Employees of the sense that it has to decide 'on evidence between a
Bharat Bank u,l proposal and an opposition; and it is not necessary to
· · be strictly a Court if it is a tnbunal which has to
Mahajan J. I decide rightly after hearing evidence and opposition."
As pointed
out in picturesque . language by Lord
Sankey L.
C. in Shell Co. of Australia v. Federal
Commissioner
of
Taxation(•), there are tribunals
with many of the trappings of a Court which,· never
theless,
are not
Courts in the .strict sense of exercising
judicial power.
It seems to me that such tribunals
though they are not full-fledged
Courts, set exercise
quasi-judicial functions
and are within the ambit of the
word
"tribunal"in article 136 of the Constitution. It
was pointed out in the above case- that a-tribunal is
not necessarily a Court in this strict sense because it
gives a final decision, nor because it hears witnesses
on oath, nor because two or more contending parties
appear before it between whom it has to decide, nor be
cause it gives decisions which affect the rights of sub-·
jects nor because there is an appeal to a Court, nor
because
it is a body to which. a matter is referred by.
another body. The intention of the Constitution by
the use of the
word"tribunal" in the· article seems to
have been to_ include within the scope of article 136
tribunals adorned with similar trappings as Court but
strictly not coming within that definition. . Various
· definitions of the phrase "judicial power" have been
given from time
to time. The best definifion of it on
high authority is the one given by Griffith
C.J. in
Huddart, Parker G Co. v. :Moorehead(•), wherein it is
defined as follows·:-
.. "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
controversies 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
(I) [1931] A.C. 275. (2) 8 C.L.R. 330, 357.
•
S.C.R. SUPREl\IE CllURT REPORTS== · 477
.,
until some tdbuual which has po\ver_ to give a binding 1950
and authoritative decision (whether subject to appeal Bharat Bank Ud.
or not) is called upon to take action." v.
It was conceded that a tribunal constituted under Emproyus of
the Industrial Disputes Act, 1947, exercises quasi-Bharat Bank u,1.
]. udicial ·powers. That phrase implies that a certain -
l.Iahajanj.
content of.the judicial ·power of the State is vested in
it and it is called upon to exercise it. An attempt
was made to define the words "judicial" and "quasi-
judicial" in the case of Cooper v. TVilson (
1
) .. The
relevant quotation reads thus :-
"A true judicial decision presupposes an exist
ing dispute between two or more parties, and then
·involves four requisites:-(1) The presentation (not·
necessarily orally) of
their case by the parties to
the
dispute; (2) if the dispute betwe!"n them is a question
of fact, the ascertainment of the· fact-by means of
evidence adduced
by the parties to. the dispute and
·
often with the assistance of argument by or on.behalf
of the parties on the evidence; (3) if the. dispute be-
.· tween them is a question of law, the submission of legal
argument by the parties, and (4) a decision which
disposes of
the whole matter by a finding upon the
facts in dispute and application of the law of· the land
to the facts so found, including where required a ruling
upon
any
disputed question of law. A quasi-judicial .
decision equally presupposes an existing dispute be
tween two
or more parties and involves ( 1) and (2), but
does not necessarily involve (3) and never involves (4).
The place of ( 4) is in fact taken by administrative
action,
the character of which is determined by the
:Minister's free choice."
·
··
The extent of judicial power exercised by an Indus
trial Tribunal will be considered hereinafter in the
light of the observations cited above.
Reference was made
to certain passages from
Professor Allen's
book on Law and
Order, Chapter IV,
page 69, where mention is made of the kindS' of ad-·· -·-
ministrative tribunals functioning in various countries ·
today. Porter on .. Administrative Law, 1929 Edn.,
(I) [1937) 2 K. B. 309, at p. 3~0.
1950
]Jl1arat H101h Ltd,
v.
478 SUPREME COURT REPORTS [1950}
page 194, was also relied upon. There can be no doubt
that varieties of administrative tribunals and domestic
tribunals are known to exist in this country as well as
Emp1u;ws of in other countries of the world but the real question to
Bha"" Ban/, Ud. decide in each case is as to the extent of judicial power
,1Iahajan ].
of the State exercised by them. Tribunals which do
not derive
authority from the sovereign power cannot
fall within
the ambit of article 136. The condition
precedent for bringing a
tribunal within the ambit of
article 136 is
that it should be constituted by the State.
Again a tribunal would be outside the
ambit of article
136 if
it is not invested with any part of the judicial
functions
of the State but discharges purely adminis
trative or executive duties. Tribunals, however, which
are found invested with certain functions of a
Court of
justice and have some of
its trappings also would fall
within
the ambit of article 136 and would be subject
to the appellate control of this
Court whenever it is
found necessary to exercise
that control in the interests
of justice.
It is now convenient to consider whether a tribu
nal constituted under the Industrial Disputes Act,
1947, exercises all
or any one of the functions of a
Court of justice and whether it discharges them accord
ing to law
or whether it can
act-as it likes in its deli
berations
and is guided by its own notions of right and
wrong. The phrase
" industrial dispute " has been
defined in section 2 clause (k) of the Act as
follows:-
" any dispute or difference between employers and
employees, or between employers and workmen, or be
tween workmen and workmen, which is connected
with the employment or non-employment or the terms
of employment
or with the conditions of labour, of
any
person·:"
Such a dispute concerns the rights of employers
;.tnd employees. Its decision affects the term$ of a
contract of service or the conditions of employment.
Not only
may the pecuniary liability of an em
ployer
be considerably affected by the adjudication
of such dispute
but it may even result in the
imposition of punishments on him. It may adversely
S.C.R. SUPREME COURT REPORTS 479
1950
affect the employees as well. Adjudication of such
a dispute affects valuable rights. The dispute and its
Bharat Bank
UJ.
result can always be translated in terms of money. The v.
point for decision in the dispute Usually is how rriUCh Employees of
money has to pass out of the pocket of the employer Bharat Bank Ud.
to the pocket of the employee in one form or another
and to what extent the right of freedom of contract Mahajan}
stands modified to bring about industrial peace. Power
to adjudicate on such a dispute is given by section 7
of the
statute to an Industrial Tribunal and a duty is
cast on
it to adjudicate it in accordance with the provi-
sions
of Act. The words underlined dearly imply that
the dispute has to be adjudicated according to
la.w
and not in any other manner. When the dispute has
to be adjudicated in accordance with the provisions
of the Act, it follows that the tribunal has to adhere to
law, though
that law may be different from the law
that an ordinary
Court of justice admin)sters: It is
noteworthy
that the tribunal is to
consist of experi-
enced judicial officers and its award
is defined as a
determination
of the dispute. The expression
"adjudi-
cation" implies that the tribunal is to act as a judge
of the dispute; in other words, it sits as a Court of
justice and does not occupy
the chair of an adminis-
·
trator. It is pertinent to point out that the tribu~al is
not given
any executive or administrative powers.
In section 38 of the Act power is given to make rules
for
the purpose of giving effect to the provisions of the
Act.
Such rules can provide in respect of matters
which concern the
powers
and procedure of tribunals
induding rules as to the summoning of witnesses, the
production of documents relevant to the subject-matter .
.and as to appearance of legal practitioners in proceed-
ings-under this Act. Rule 3 of these rules provides
that any application for. the reference of an industrial
<lispute to a tribunal shall be made in form (A)
and
shall be accompanied by a statement setting forth,
inter alia, the names of the parties to the dispute and
the specific matters of dispute. It is in a sense in the
nature of a plaint in a suit. In rule 13 power is given
to administer oaths. Rule
14 provides as follows :-
"A tribunal may accept, admit or call for·
1950
Bharat Ran/;: Ltd
v.
480 SUPREME COURT REPORTS [1950]
evidence
at any stage of the proceedings before it and
in such manner as it may think
fit."
Rule 17 provides that at its first sitting the tribu-
Empto.v""'°/ nal is to call upon the parties to slate their case. In
Bharat Bauk Ltd. rule 19 provision has been made for proceedings ex
parte. Rule 21 provides that in addition to the powers
Mahafau .f. conferred by sub-section (3) of section 11 of the Act,
a
tribunal shall have the same powers as are vested in
a civil
Court under the Code of Civil Procedure when
trying a suit, in respect of the following matters,
namely, (a) discovery
and inspection; (b) granting of
adjournment ; (c) reception of evidence taken on affi
davit ; and that the tribunal
may summon and examine
s·uo motu any person whose evidence appears to it to be
material.
It further says that the tribunal shall be
deemed to be a civil
Court within the meaning of sections
480 and 482 of the Code of Criminal Procedure, 1898.
H.ule 21 says that the representatives of the parties,
appearing before a tribunal, shall have the right of
examination, cross-examination
and re-examination and
of
addressing· the Court or Tribunal when all evidence
has been called. In rule 30 it is provided that a party
to a reference may be represented by a legal practitioner
with the permission of the tribunal and subject to such
conditions as the tribunal may impose. In section 11 (3)
it is laid down that a tribunal shall.have the same powers
as are vested in a civil Court under the Code of Civil
Procedure when trying a suit, in respect of the follow
ing matters, namely, (a) enforcing the attendance of
any person and examining him on oath; (b) compelling
the production of documents and material objects; ( c)
issuing commissions for the examination of witnesses ;
(d) in respect of such
other matters as may be pres
cribed; and every inquiry or investigation by a tribu
nal shall be deemed to be a judicial proceeding within
the meaning of sections 193 and 228 of the Indian
Penal
Code. It is difficult to conceive in view of these provi
sions
that the Industrial Tribunal performs any func
tions other
than that of a judicial nature.
·The tribu-
. nal has certainly the first three requisites and charac
teristics of a Court as defined above. It has certainly
a considerable element of
the fourth also inasmuch
<.s
-
S.C.R. SUPREME COURT REPORTS 481
the tribunal cannot take any administrative action, 1950
the character of which is determined by its own choice. B u•
h d
. d" . . d "th Blrarat cnk "•
It as to make the a JU 1cahon m accor ance w1 v.
the provisions of the Act as laid down in section 7. It Employees of
<:onsists of persons who are qualified to be or have Blrarat Bank Ud.
been judges. It is its duty to adjudicate on a serious dis-. -:
pute between employers and employees as affecting MallaianJ.
their right of freedom of contract and it can impose
liabilities
of a pecuniary nature and
disobedien~e of its
award
is made punishable. The powers exercisable by
a tribunal of this nature were considered in a judgment
of the Federal
Court of India in Western India Auto-
mobile Association v. Industrial Tribunal, Bom-
bay (1 ), and it was observed that such a tribunal
can do what
no
Court can, namely, add to or
alter the terms or conditions
of the contract of
service. The tribunal having been . entrusted with
the duty of adjudicating a dispute of a peculiar
character, it
is for this reason that it is armed with
extraordinary powers. These powers, however, are
derived from the statute. These are
the rules
of the
game and it has to decide according to these
rules. The powers conferred have the sanction
of
law behind it and are not exercisable by reason of
any
discretion vested in the members of the tribunal. The
adjudication of the dispute has to be in accordance
with evidence legally adduced and the parties have a
right to be heard· and being represented by a legal
practitioner. _Right to examine and cross-examine
witnesses has been given to the parties and finally
they
can address the tribunal when evidence is closed. The
whole procedure adopted by the Act and the rules is
modelled on the
Code of Civil Procedure. In my opini-
on, therefore, the Industrial Tribunal has all the neces-
sary attributes
of a
Court of justice. It has no other
function except
that of adjudicating on a dispute. It
is no doubt true that by reason of the nature
of. the
dispute that they have to adjudicate the law gives
them wider powers
than are
possessed by ordinary
Courtsoflaw, but powers
of such a nature do not affect
(l)
(1949) F. C.R. 5!!.
482 SUPREME COURT REPORTS [1950]
J9j0 h . d
t e question that they are exercising ju icial power.
BJ;arat Bauk Ud. Statutes like the Relief of Indebtedness Act, or the
,. Encumbered Estates Act have conferred powers on
Employees of Courts which are not ordinarily known to law and
Bharat Ba111, Ud. which affect contractual rights. That circumstance
'does not
make them anything else but tribunals exer-
Ara1iaja11 j. . · . d. . f h S h
c1smg JU 1cial power o t e tate, t ough in a degree
different from
the ordinary
Courts and to an extent
which is also difierent from that enjoyed by an ordi
nary Court of law. They may rightly be described as
quasi-judicial bodies because they are out of the·
hierarchy of the ordinary judicial system but that
circumstance cannot affect the question of their being
within the ambit of article 136.
It may also be observed that the tribunal is
deemed
to be a ci
vii Court for certain purposes as laid
down in rule
21 of the rules above cited and in section
11(3)
of the Act. As a civil
Court if it exercises any
of the powers contemplated by this section its decisions
would become subject
to appeal to a District Judge and
a
fortiori this Court's power under article 136
would at once be attracted in any case in respect
of
these matters. Again, in
Chapter VI of the Act
breach
of the terms of an award has been made punish
able
by section 29 of the Act .. The result there
fore, is
that disobedience of the terms of an award is
punishable under
the Act. That being so, a determi
nation of the
tribunal not only affects the freedom of
contract
and imposes pecuniary liability on the em
ployer
or confers pecuniary benefits on the employees,
but it also involves serious consequences
as failure to
observe those terms makes a person liable to the pen
alties laid down in Chapter VI. An award which has
these serious consequences can hardly be said to have
been given by a tribunal which does not exercise some
of the
most important judicial functions of the State.
Considerable stress was laid by Mr. Alladi on the
provisions of sections
15 and 19 of the Act.
Section 15
enacts as follows:--
"(1) Where an industrial dispute has been re
ferred to a
Tribunal for adjudication, it shall hold its
S.C.R. SUPREME COURT REPORTS 483
proceedings expeditiously and shall, as soon as practic
a:bie 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
a ward
to be binding.
Provided
that where the appropriate Government
is a
party to the dispute and in its opinion it would
be inexpedient on public grounds
to give effect to the
whole or any part of the award, it shall on the first
available opportunity
lay the award together with the
statement of its reasons
for not making a declaration
·as aforesaid before the Legislative Assembly of the
province, or where the appr<?priate Government, is the
Central Government, before the Central Legislature, and
shall, as soon as may be, cause to be moved therein a
resolution for the consideration .of the award; and the
Legislative Assembly or as the case
may be, the
Cen
tral Legislature, may by its resolution confirm, modi
fy or reject the award.
(3)
On the passing of a resolution under the
proviso to sub-section (2), unless the award is rejected
thereby,
the appropriate Government shall by order
in writing declare the award as cqnfirmed or modified
by the resolution, as the case may
be, 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 shall not be called in ques
tion in any manner."
As regards clause ( 4
), it was conceded rightly that
a law dealing with industrial disputes and enacted in
the year 1947 could not in any
way·affect the provisions
of
the
Constitution laid down in article 136. It was how
ever, strenuously urged
that the award
of the tribu
nal had no binding force by itself and unless the
appropriate Government made a declaration in writing
under clause
(2) of section 15, this award was a lifeless
document and had no sanction behind it
and therefore
it could not have been contemplated that it would be
appealable even by special leave.
In my opinion, this
contention is unsound. The provisions of clause (2) of
6t!
1950
Bharat Bauk Ud.
v.
~mployces of
Bilarat Bank Ud.
!tlailajanJ.
484 SUPREME COuRT J{EPORTS [1950]
1950 section 15 leave no discretion in the Go,·crment either
Bha.-at lla"k u.1, to affirm, ~od~fy or reject the <n~ard: It is bound to
v. declare 1t bmdmg. It has no option m tlie matter.· In
Bmptoy""·' of su::h a situation it is the determination by the tribunal
HhaMt n,,,.,, u.i. that matters. 'Vithout that determination Government
cann·)t function. It does not possess the power either
Mai.a;an J. to adjudicate the dispute or to alter it in any. manner
whatsoever.
That power vests in the tribunal alone. The rights of the parties are really affected by the
adjudication contained in the award, not
by the
Government's declaration which is automatic. It is
no
don bt true that announcement of the award by the
Government gives
it binding
torce but that does not
affect the question of the appealability of the determina
tion under article 136 of the Constitution. The appo
site answer to this contention may be given in the
language of the decision in Rex v. Electricity C ommis
sioners (
1
). The relevant passage runs thus :-
"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 modifications. Similarly the Minister of
Trans
port comes to no decision. He submits the order to the
Houses of Parliament, ,,·]Jo 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,
confirma
tion, approval, is only part of a process by which Parlia
ment 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 con
tention. Given its full effect, it means that the checks
and safeguards which have been imposed by Act of
Parliament, including
the freedom from compulsory
taking, can be removed,
and new and onerous and
ill
[1924.] 1 K.13. 171, at 207.
S.C.R. SUPREME COURT REPORTS 485
inconsistent obligations imposed without an Act of
Parliament,
and by
sim~le resolution of both Houses
of Parliament. I do not find
it necessary to determine
whether, on
the proper construction of the statute,
resolutions of the
two Houses of Parliament could have
the effect claimed. In the provisicm that the final
decision of the Commissioners is not
to be operative
until it has been approved by the two Houses.of
Parlia
ment I find nothing inconsistent with the view that
they act judici'¥1ly and within the limits prescribed by
. .\ct of Parliam~nt, 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
Jfinister of Transport who confirms,
nor the Houses of Parliament who approve. can
itnder
the statute make an order which in respect of the matters
in question has any operation. I know of no authority
which compels me
to hold that a proceeding cannot be a
judicial proceeding subject
to confirmation or approval,
even where the approval has
to be that of the Houses of
Parliament.
Tlze authorities are to the contrary."
The observations, though they relate to a case
which concerns the issue of a writ of prohibition and
certiorari, have application to the present case. Here
no discretion whatsoever has been left in the Govern
ment in ordinary cases to either modify or to reject
the determination of the tribunal. The
fact that the
Government has to
make a declaration after the final
decision of the
tribunal is not in any way inconsistent
with the
view that the tribunal acts judicially. It
may also be pointed out that within the statute itself
a clue has been provided which shows
that the
circum
stance that the award has to be declared by an order
of Government
to be binding does not affect the
ques
tion of its appealability. In article 136 clause (2)
express provision has been made for excepting from the
ambit of
article 136 the decisions of military courts
and tribunals. It follows that but for the exception it
was considered that these would be within article 136
clause \1). It is quite clear from the various pro
visions of the Army Act that the decisions of military
tribunals or courts are s':1bject to confirmation either by
1950
Bharat Ba11k U!I.
v.
Employees of
Bharat Bank Uc!
Mahajan}.
486 SUPREl\IE COURT REPORTS [1950}
1950 the Commander-in-Chief or various otter military
I I I
authorities. It is only after such corlfirmation that
JJ!un·,d ~a11k .J, . h I .
v. · t at can operate. t has never been considered that
Bmploym of that fact in any way affects the question of their
Bh,,rat Book Ud. appcalabi!ity .
. u"'"'i'"' J. Rex v. i'vlinister of Health(') also supports this
view. There by the Housing Act, 1925, by sedion 40,
a local authority which had prepared an improvement
scheme was required to present a petition to
the Minister praying that an order should be made confirm
ing such scheme. Sub-section
(3) provided that
the
:\Iinister after considering the petition may cause a
local inquiry to be made and may by order confirm the
scheme
with or without conditions or modifications.
In sub-section (5) it was stated that the order of the Minister when made shall have effect as if enacted in
th is Act. It was held by the Court of Appeal that as
the
order made by the Minister was made without the
statutory conditions having been complied with it was ultra vires and therefore a writ of certiorari should
issue for the purpose of quashing it. Reliance was
placed
by Scrutton L. J. on Rex
v. Electricity Commis
sioners(")-The same view was expressed in Minister
of Health v. The King(•). It was observed that judi
cial review
by prohibition or a writ of certiorari was permissible if the Minister of Health in confirming the
order exceeded his statutory powers. It is clear there
fore
that simply because an order has to be confirmed
by a Minister or by the Government it in any way
affects
the power of judicial review. Reference may
also be made to the observations in Smith
v. The
<Jueen (
4
). At page 623 it was observed that it is a
common principle in every case which has in itself
the
character of a judicial proceeding_ that the party against
whom a
judgment is to operate shall have an oppor
tunity of
being heard. In this sense it can hardly be
disputed
that the proceeding before an industrial
Tribunal is a judicial proceeding. In my judgment,
therefore,
the
contentio~ raised by Mr. Alladi that this
{1) [1939] 2 K. B. 98.
(2) [192•11 K.B.171.
(3) [1931] A.C. •9•.
(•) 3 A.C. 2•5.
S.C.R. SUPREME COURT REPORTS 487
Court cannot exercise its powers under article 136
because
the decision of the tribunal has no force till a
declaration is made
by the Government cannot be
sustained.
·
As regards section 19, it was contended that an
award declared
by the
appropriat~ Government under
section
15 to be binding can only come into operation
on such
date as may be specified by the appropriate
Government and can only remain in operation for such
period not exceeding one year, as may be
fixed ·by that
Government and it was said that herein the Government
had the power to state the period from which the
award was to commence and the time for which
it was
to remain in
force. This section does not, in my opinion,
affect
the question of the appealability of the deter
mination of the tribunal. Government has certain
functions to perform in its own sphere after
the award
is made.
In certain cases it is bound to declare that
award binding. In other cases, when it is itself a party
to the dispute, it has certain overriding powers and
these overriding powers are that if it considers that
the award is not in public interests it may refer it to
the legislature. The legislature, however, has the
power to modify, accept or reject the award. These
overriding powers presuppose the existence of a valid
determination
by a tribunal. If that determination is
in excess of jurisdiction or otherwise proceeds in a
manner that offends against the rules of natural
justice and is set aside by exercise of power under
article 136, then no occasion arises for exercise of
governmental power under
the Act. Given a valid
award,
it could not be denied that the Government
could exercise
its powers in any manner it considered
best and the exercise of that power is out.side the con
stitution of this
Court. In this connection reference
was made
to
·Moses v. Parker (
1
). The passage on
which emphasis was laid reads as
follows:-
" The Court has been substituted fot the commis
sioners
to report to the governor. The difference is that
their report is to be binding on him.
Probably it was
(1) [1896) A.C. 245.
1950
Bltarat Bank L.td.
v.
B111ptoyn'.' nf
Bharat l~ank I .. td.
iUaltnjroz J.
1950
Bharat Bank Ltd.
v.
Bniployees of
B!1arat Banh Lt,l.
MahajanJ.
488 SUPREME COURT REPORTS [1950}
thought that the status and training of the judges
made them the most proper depositaries of that power.
But that does not make their action a judicial
action
in the sense that it can be tested and altered
by appeal. It is no more judicial than was the action
,
of the commissioners and the governor. The Court
is to be guided by equity and good conscience and the
best evidence. So were the commissioners. So every
public officer ought to be. But they are expressly
exonerated trom 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
~o 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 diffi
culties would doubtless 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 Com
mittee 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 provisions of the
statute with which
we are concerned. I do not see any
difficulty in thffi case in testing the prnpriety of the
determination of the tribunal. This Court is not to
substitute its decision for the determination of the
tribunal wben granting relief under article 136. \'hen
it chooses to interfere in the exercise of these extra
ordinary 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
'
/
S.C.R. SUPRE:VIE COURT REPORTS 489
result in injustice or has adopted a procedure which 1950
runs counter to the well established rules of natural
Bharat Ban/, UJ.
justice. In other words, if it has denied a hearing to v.
a party or has refused to record his evidence or has F.mJ>loy.zes of
acted in ~ny other manner, in an arbitrary or despotic Bharat Bank u.1.
fashion. In such circumstances no question arises of
h
. C · · · f · 'b l d MalwjanJ.
t 1s ourt constituting 1tsel mto a tn una an assum-
ing 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 exc.eptional cases and
on well known
prindples. 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 exercised 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
rigl).ts of appeal or other remedies available, if it is
considered essential to do so
in extraordinary situa
tions. Vide Bentwick's
Privy Council Practice, 3rd
Edn., page 125. Therein it is stated as follows :-
"In several cases from Jamaica, the Privy Council
granted leave to appeal to the Queen in Council dire"Ct
ly from the Supreme Court, ,,·ithout an intermediate
appeal (which would have been attcuded with much
490 SUPREME COURT REPORTS [1950}
1950 expense and delay) to the Court of Error in the island,
81
tB k Ltd there being in each of those cases manifestly some point
iara /" · of law raised which deserved discussion."
Employees of Th I R B tt(1 ) H .
81 1 8
k Lt
1
e cases were n e arne , arrison v.
•ara_::_n '"Scott(•), and Attorney-General of ]amacia v. 11fander
Mahajan J. son {
3
). 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 conferred 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 neces
sary to do so. I am, therefore, of the opinion that the
mere circumstance that a remedy i.n the nat,ure 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. \Vhenever judicial review is permissible
in one
form or another, this
Court as the highest Court
in the land can exercise its special powers and circum
vent
ordinary procedure by granting special leave.
What it has to ultimately 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
construct.ion of sections 51, 71 and 72 of the Aust
ralian Constitution
(63 and 64
Viet., c. 12). Section
72 requires
that every Justice of the High
Court and
every Justice of any other Court created by the Parlia
ment of the Commonwealth shall snbject 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 consti
tuted 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
(2J 5 Moo. 357. \3) 6 Moo. 239.
...
•
S.C.R. SUPREME COURT REPORTS 491
phraseology has not been used in any part of the Con- 1950
stitution of India and in these circumstances ~t _is di~- Bilamt ua,,•k Utf.
cult to derive any assistance from these dec1s1ons m v.
solving the problem before us. The Constitution of Bmptoy,·csof
India is not modelled on the Constitution of Australia. Blwmt Uauk I.id.
and that being so, any observations ipade in decisions
Me1/1ajm1 J.
given under that Constitution cannot be held to be a
safe guide in the interpretation of language employed
in a Constitution differently drafted. .
The first of these cases is Waterside Worhers'
Federation of Australia v. ]. W. Alexander Ltd. (
1
).
Therein it was held that the power conferred by the
Commonwealth Conciliation 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
tRe 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 proceeded to destroy
at birth. It is true that
enforcement provisions are found ........ But all this was
in imitation of
the
State Acts of Arbitration, and not
in reliance on
the .Judicature
Chapter of· the Federal
Constitution. The arbitral portion of the Act i;;, 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 ~ustralia and exercises similar functions. It is ho"·
ever pertinent to observe that the phraseology employ
ed 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; 4.34.
63
1950
Bharat .1'1arik Ud.
v.
Eniployces of
Bharat Han}~ l.td.
492 SUPREME COURT REPORTS [1950}
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
its 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.
1t does not purport to ascertain and
enforce existing rights ; it js directed to the creation
of new rights.
It is urged on behalf of the plaintiff that
a determination of the
Committee does not <'reate a
rule of conduct binding the parties for
the future, but
that it authoritatively determines a possibly
contro
verted question of fact and that the making of such an
authoritative determination is necessarily
an exercise
of judicial power. Reference is made
to the
fre
quently quoted statement of Griffith C. J. in Huddart
Parker & Co. Pty. Ltd. v. lvloorehead (
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 neces
sity have to decide contr;:iverises 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 authoritative decision
(whether subject
to appeal or not) is called upon to
take
action."
(I) 69 C.L.R. 185. (2) 8 C.L.R. 330 at 357.
(3) [1931] A.C. 275.
S.C.R. SUPREME COURT REPORTS 493
Reg. SC gives Committees power: to decide con-195·0
troversies between subjects relating to thei~-~ights :ind Bharat Bank ur1.
the regulation purports to make those dec1s1ons bmd-'"
ing and authoritative. Employees of
I am not. satisfied that the words of Griffith C. J. Bliarat Rank LI.I.
are properly interpreted when it is said that they mean Maliaja,, J.
that a power to make binding and authoritative deci-
sions 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 authoritative 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 decision, then,
but only then, according to the definition quoted, all
the attributes of judicial
pow~r 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 J. referred
to the.statement of Palles C. B. in R. v. Local Govern
ment Board for Ireland (
3
) "to erect a tribunal into a
•Court' or 'jurisdiction', so as to make its determin
ations judicial, the essential element is
that it should
have power,
by its determination within jurisdiction,
. to
im,Pose liability or affect rights." "By this," said the
learned Chief Baron, "I mean that the liability is im
posed, or the right affected
by the determination only,
and
not_ by the fact determined, and so that the liabi
lity 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, although
it
may be necessary for the officer to determine whether
(1) [1931]
A.O. 275. (2) 8 C.L.R. 330 at 383.
(3) [1902] 2 I.R. 3~9 at p. 373.
494 SUPREME COURT REPORTS [1950)
1950 • the contingency has happened, in order to know
Bit -;;; k ua whether he shall exercise the power, his determination
nra v. "" does not bind. The happening of the contingency
Rmp1oyccs of may be questioned in an action brought to try the
Bharat Bank Ltd. legality of the act done under the alleged exercise of
the power.
But where the determination binds, al-Mal1<rjan J. though 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 statement 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 iµstant
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 stand
ard 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 ques
tion. The decision of the Women'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 imme
diately enforceable liability upon
any employer, for ex
ample, to pay wages to a particular female, it would be
necessary for the female or some person on her behalf
(see reg. 9 A) 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.
In
. such a proceeding the determination 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
machinery 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
· (6) 3' C.L.R. '82, 512.
S.C.R. SUPREME COURT REPORTS 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
pro
vided 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 considered in an earlier part of this
judgment. Reference was also made
to Mohammad
Ahmad
v. Governor-General
iii Council (
2
), 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 discus
sed in
Hari v. Secretary of State for India (
3
). Labour
Relations Board
v. john East lron 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 }).as in process
of time developed. Originally
it was intended for the
protection of judges sitting in recognised
Courts of
!1) [1931) A.O. 275. (3) I.L.R. 27 Born. 424.
(2) I.L.R. 19!6 Lah. 16. (4) A.I .. R. 19'9 P.O. 129.
(5) [1935] A.C. 7S.
1950
Bharat Bank LJ,I,
v.
Employees of
Bharat Ba11k U,f,
Ma/1aja11J.
496 SUPREME COURT REPORTS [1950J
19so Justice established as such. The object no doubt was
Bharat Renk Utl. that judges might exercise their functions free from
•. any danger that they"llright be called to account for
Employees of any words spoken as judges. The doctrine has been
Bharnt Bank Ud. extended to tribunals exercising functions. equivalent
f.Jahajan J.
to those of an established Court of Justice. In their
Lordships' opinion the law on the subject was accurate-
ly
stated by Lord Esher in Royal Aquarium etc. Ltd.
v. Parkinson (' ), where he says that the privilege · applies wherever there is an authorized inquiry which,
though not before a Court of Justice, is before a tribu
nal 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 hold
ing
that
the Industrial Tribunal has similar attributes
as that of a Court of Justice 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 Corpora
tion (
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.(•). That dealt with the
powers of the National Arbitration Tribunal. In my
opinion this citation also is not of much assistance.
It was again urged by Mr. Alladi that the word
" tribunal " was introduced in the article to provide
for cases of
tribunals like the Board of Revenue. The
suggestion does not appear to be sound, becaµse a
Revenue Board has all
the attributes of a
Court of
justice
and falls within the definition of the word " Court" in matters where it adjudicates on rights of
parties.
(61 (189!] 1. Q.B. '31. (7) [1938] A.C. '15.
(8) (19,7] A.E.R. 693.
S.C.R. SUPREME COURT REPORTS 497
The word " tribunal " has been used in previous 1950
legislation in a number of statutes and it is difficult to
8
-;; k u.i.
think that the Constitution when it introduced this 1iarat v~"
word in article 136 intended to limit its meaning to Employers cf
only those tribunals which though not described ~s Bharat Bank Lta.
Courts strictly speaking, were discharging the same br
analogous functions as were being discharged by CouJitS. Mahajan].
For the reasons given above I am of the opin'ion
that the word " tribunal " in article 136 has to be con
strued 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 determi
nation
an application for special leave is competent.
The question now to determine is whether the
exercise of overriding powers of
this
Court can be justi
fied 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 " victimization" used in clause 18 of the
reference had been interpreted 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 em
ployer'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.
19li0
Bharat Bank Ltd.
v.
E111ptoyces of
Bliarat Banll Ltd.
flfallajau J.
498 SUPREME COURT REPORTS [1950]
The determination of the Tribunal has not been mate
rially 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 rein
stated 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 dis
pute
had been referred to an Industrial Tribunal. It
was
durin'l" the pendency of that dispute that another
£trike 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 eailier 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
diopute. 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 refer
ence
to the Tribunal was made by the Government in
respect of
an illegal strike and the Tribunal was bound
to give its decision on the
refi;rence. I tern 18 of schedule
II clearly empowers the tribunal to deal with cases of
victimization as a result of the
third strike which the
petitioner described
as -illegal. The Tribunal may be
S.C.R. SUPREME COURT REPORTS 499
wrong in the view they have taken but it seems to me
this is again not a question of
that vital character which would justify the grant of special leave under
article
136.
The
next question raised by the learned counsel was
that the award of the Tribunal is based on no evidence
whatsoever. This contention requires serious considera
tion. I have exartl.ined.the proceedings of the Tribunal
and it appears that all it did was that as required by
rule
17 at the first sitting it called upon the parties to
state their cases. Mr.
Parwana on behalf of the em
ployees stated their respective cases and Mr. Ved Vyas
who represented the
bank stated the bank's case and
after the cases had been
stated the proceedings ter
minated and both parties addressed arguments
and
the Tribunal proceeded
to give its award. Whether
the cl;large of victimization in individual cases Was
proved or not depended on proof of certain facts which
had to be established
by evidence. The onus of proving
victimization clearly rested on
tne employees. No
evidence whatsoever was Jed on their behalf. The
statement of the case
by Mr. Parwana was not on oath.
There was
no examination or cross.examination
of·
Mr. Parwana. No affidavit supporting the facts stated
b;x Mr. Parwana was filed by him or by any employee.
Mr, Parwana produced an abstract of the correspond
ence but the original correspondence was not produced.
The bank disputed the facts stated by Mr. Parwana oy
means of a lengthy affidavit. It seems no reference was
made even to this affidavit
by the Tribunal. No counter
affidavit was filed in reply to the
fact.s stated in this
affidavit. The bank wanted to call some evidence.
Particular reference was made in respect of a scurrilous
letter issued
by one Bhattacharya on behalf of the
employees
and distributed by them, which it is alleged
considerably shook the credit of the bank. This
opportunity was denied to it.
It was contended before
us
that the bank wanted to lead evidence on certain
matters
and that the opportunity to lead it was
denied. There is nothing on
the record to support this
contention. The result therefore is
that the facts on the
basis of which allegations of victimization have been
64 .
1950
!Jharat Ba"k Ud.
v.
Employees of
Bharat Bank Ud.
Mahajan}.
500 SUPREME COURT REPORTS [1950J
1950
made are neither supported by an affidavit nor by any
evidence and the award is based on no evidence what
SJiarat Ban,~ Ud,
v. soever. The Act as well as the rules framed under it
Employees of contemplate a proper hearing, discovery and inspection
llharat Bank Ltd. of documents and production of evidence, etc. None of
this procedure was followed
by the Tribunal. It is
M.ahlrjan J. d"ffi 1 h · h T · ·
1 cu t to see on w at matenal t e nbunal has given
its award as there is none existing on
the present record
and the respondents' counsel could not point out to
any such material. At one time during the argument
I was inclined to
think that possibly both parties by
agreement consented to treat the statement
. of case as
evidence in the case
and did not wish to produce any
other evidence, but the affidavit filed on behalf of the
bank disputes all the facts stated by Mr. Parwana.
The only evidence on
the record is the bank's affidavit
and if the facts contained in the
aflj.davit are accepted,
then the determination made
by the Tribunal cannot
stand. It seems to me therefore that the procedure
adopted by the Tribunal was against all principles of
natural justice and the award is thereby vitiated and
should be set aside. It happens that when the safe
guard of an appeal is not provided by law the tendency
sometimes is to
act in an arbitrary manner like a
benevolent despot. Benevolent despotism, however, is
foreign to a democratic
Constitution. The members of
the Tribunal seem
to have thought that hav.ing heard
the statement of the cases of the parties they could
proceed to a judgment on
their own view of its right
or wrong unaided by any material. That kind of pro
cedure to
my mind is unwarranted by the statute
ai:id
is foreign to a democratic Constitution. In these cir
cumstances it is the compelling duty of this Court to
exercise its extraordinary powers and to quash such an
award. ..
The last contention raised by Bakshi Tek ChJJ,nd
was that though a Tribunal consisting of three persons
was appointed to adjudicate on the dispute,
the
awai;d
has only been signed by two of them. Reference m
this connection was made to section 16 of the Act
which says
that the award of a Tribunal shall be in
writing
and shall be signed by all the members of the
S.C.R. SUPREME COURT REPORTS 501
Tribunal and that nothing in the section shall be
deemed to prevent
any member of the Tribunal. from
recording a
minute of dissent. The provisions of the
section are mandatory and have
not been complied
with.
It is
cqnmon ground that the case was stated
by the parties at a sitting when all the members of the
Tribunal were present and the arguments were heard
by all of them. No sitting took place subsequent to this
which would have necessitated the carrying on of pro
ceedings
by two members of the Tribunal by a quorum.
When
the matter has been heard by all the three mem
bers,
the award should have been given by all of them.
Therefore the award given
by two of them is not the
award of the Tribunal constituted by the Government.
It is therefore vitiated and has to be quashed.
Re
ference in this connection was made to section 8 of the
Act which reads as follows:--
" If the services of the chairman of a Board 0r of
the chairman or other member of a Court or Tribunal
cease
to be available at any time the appropriate
Gov-·
ernment shall, in the case of a chairman, and may in
the case of any other member, appoint another in
dependent person to
fill the vacancy, and the proceed
ings shall be continued before the Board,
Court or
Tribunal
so
reconstituted."
The Tribunal was never reconstituted by the Gov~
emment by any notification. Under section 7 a Tribu
nal has to be constituted in accordance with the provi
sions of the Act by the Government. The Government
having constituted a Tribunal of three persons it had
power under section 8 to reconstitute it but did not
exercise that power. The result therefore is that the
Tribunal as originally constituted was not the Tribu
nal which gave the award in this reference. Only two
members have given the award.
It was said that one
of
the members ceased to be available and the Govern
ment was not bound to fillup. that vacancy. There is
no material on the record
to prove whether any mem
ber became
unavailable and if so, when. But even if
a member becomes unavailable and the Government
does not choose to
fill up the vacancy, still the Govern
ment has to reconstitute the Tribunal by saying that
ig50
Bharat 8<mk Utl.
v.
E111j>/oyces of
Bhamt Rani: Ud.
Mahajan J.
195fl
B/Jarat Hank f..td.
v.
E11iPloyl'es of
Blurrat !Jank l.Jd,
~iia/iajau J,
502 SUPREME COURT REPORTS [1950]
two members will now constitute the Tribunal. An
affidavit with two telegrams annexed was filed before
us on behalf
of the respondents which disclosed that
l\lr. Chandrasekhar a Aiyar who was one of the members
of the Tribunal, in November, 1949, was appointed a
melI)ber of the Boundary Commission · in Bengal and
thattfre-other two members sent a telegram to the
Labour Ministry asking it to fill up the vacancy or to
reconstitute the Tribunal. The advice given by the
Ministry was that they could proceed as they were and
that the Government would later on, if necessary, fill
up the vacancy. We are not concerned whether the
advice given was right or wrong. But the fact remains
that the Tribunal was never reconstituted and it was
not denied
that Mr. Chandrasekhara Aiyar is now
sitting in the same Tribunal without being again nomi
nated to it and the Tribunal is hearing the same refer
ence under
the other issues referred to it. Moreover,
I do not see
why after having heard the reference he
could not give
the award even if he was in
Calcutta or
sign the award given by the other two members. The
idea of three persons hearing a case and two of them
deciding it is repugnant to all notions of fairness. It
may well have been that the opinion of the third may
have influenced the other two or the decision arrived
at may have been quite different. It so happened in
this case that two members of the Tribunal differed on
an important question of law but somehow adjusted
their differences and gave a unanimous award. The
presence of the
third in such a situation may have
very vitally affected the result. After a good deal of
thought I feel that it would be most dangerous for this Court to condone proceedings of this character. If
exceptional powers are not exercised even when a body
legally constituted under the statute does not function
according
to the statute, then they defeat the very
purpose of the Constitution.
Reference
in this connection may be made to the
decision of their Lordships of the
Privy Council in
Fakira v. King Emperor(
1
). In that case section 377
(1) A.I.R.1937 P.C.119.
S.C.R. SUPREME COURT REPORTS 503
of the Code of Criminal Procedure as modified and as
applicable
to Hyderabad stood as follows:-.
"In every case so submitted, the confirmation
of the sentence or order passed by the Court of the
H.esident at Hyderabad shall, when such Court consists
of two or more Judges, be made, passed and signed by
at least two of them."
In Fakira's case the order of confirmation was
only made, passed and signed
by one of them, though
the Court of the Resident consisted of two Judges.
Their Lordships held
that the peremptory provisions of
section 377
had not been complied with and that the
sentence passed had not been validly confirmed. The
appeal was allowed and the case was remitted to the
Court of the Resident. The provisions of section 18
of the Industrial Disputes Act are also of a peremptory
nature. Reference
may also be made to a case arising
under the
Bar
Councils Act reported in 1 n re An
Advocate, Madras(
1
), where one member of the tribunal
under that Act had died and had not signed the report.
It was held that the tribunal ceased to be properly
constituted
and that the report could not be
considered.
For the reasons given above I would quash this
award and direct that the Tribunal which is still func
tioning should readjudge item
18 of the reference and
then submit its award on this point to Government.
The employees cannot be held responsible for the
method of procedure adopted
by two members of the
Tribunal. Each
party will have to bear their own
costs in this
Court. The appeal is allowed to the extent
indicated above.
J 950
Blzarat Bank Ud.
v.
Empio yees of
Bharat Batik Ud,
Malzajan}.
~l UKHERJ EA J .-This appeal, which has come up Jiuld1crjea J.
before us on special leave, is directed against an award
made by the All India Industrial Tribunal, dated the
19th of
January,
1950. The Tribunal was constituted
by the Central Goyernment under section 7 of the
Industrial Disputes Act and a large number of disputes
(1 A.LR.
19'2 Mad. 267.
504 SUPREME COURT REPORTS (1950]
1900 between several Banking companies and their em-
B
ployees were referred to it for adjudication. Amongst
B/,arat ank Ud, h B k · · ' h B
v t ese an mg compames were t e harat Bank
Empto;ees of Limited, the appellants before us, and the disputes
Bharat Bank ua. between them and their employees, who are respon
dents in this appeal, related inter alia to a number of
M"khccj,·a J. cases of retrenchment and victimization which the
latter alleged against the former. The Tribunal held
its enquiry in Delhi in respect to the cases which were
connected with the Ddhi Branch of the appellants and
as a result of the same, made their award on 19th
January, 1950, holding that 26 persons, who were
employees under the appellants, were improperly dis
missed. by the latter and should be reinstated. Fur
ther directions were given in the award regarding the
salaries and allowances
that were to be paid to
the
dismissed employees. This award was declared to be
binding in terms
of the provisions of sections 15 and 19
of the Industrial Disputes Act by the
Central Govern
ment on 30th of January, 1950, and it was directed to
remain in operation for a period of one year. It is
against this award
that the present appeal has been
preferred. On behalf of the Indian Union which appeared as
an intervener in this appeal, as also on behalf of
the respondents, a preliminary objection was taken
challenging the competency of the appeal. The con
tention put forward by Sir Alladi Krishnaswami
Aiyar, who appeared for the intervener, in substance,
is
that article 136 of the Indian Constitution, under
which special leave was
prayed for and obtained by
the appellants in this case, does not contemplate or
include within its scope an appeal against an award of
an Industrial Tribunal which is not vested with,
and
cannot exercise, judicial powers, and the decision of
which cannot, therefore,
rank as a judicial
determina
tion. The Industrial Tribunal, it is said, is an
administrative body exercising quasi-judicial functions
and this Court cannot be called upon to exercise the
powers of an appellate Court in respect to the decision
of a
tribunal which is really a part of the
administra
tive machinery of the Government.
S.C.R. SUPRE1IE COURT REPORTS 505
In reply to this objection, it has been urged by
Sir Tek Chand that the Tribunal constituted under
the Industrial Disputes Act is really and in substance,
a Court or judicial tribunal which is invested with the
power and authority to exercise judicial functions;
and in any event, the language of article 136 of the
Constitution is wide enough to include an appeal from
the award or determination of any tribunal, be it
judicial or not.
There are two questions which require considera
tion on
this preliminary point. The first is,
whether
the award or decision of an Industrial Tribunal
constituted under the Industrial Disputes Act is a
judicial decision in
the proper sense of the expression
or is
it the pronouncement of an administrative or
quasi-judicial body which may exercise some of
the
functions of a
Court of law but is really not so? The
other question turns upon the construction to be put
upon article 136 of the Constitution particularly on
the meaning to be given to the words 'tribunal' and
' determination ' occurring therein ; and the question is
whether the language
is wide enough to include an
adjudication or
award of an Industrial Tribunal.
As regards
the first question, it is to be noticed that
owing to the intricate and complex system of Govern
ment that exists in a modern
Btate and the vast ex
pansion of social legislation of all sorts
that have taken
place in England and in
other countries including our
own, within the last
few decades, the so-called adminis
trative and quasi-judicial tribunals have come to be a
permanent feature
of our social and political system.
They function
as adjudicating bodies in disputes con
cerning a large number of economic
and social affairs.
In a sense they are governmental bodies appertaining
to the executive and not to the judicial branch of the
State, though in various matters they are armed with
judicial
po\vPrs analogous to those normally carried
out
by
Courts of law. The question is, what are the
tests or distinguishing feaJures, if any, which distin
guish an administrative
tribunal from a
Court of law.
Once we are able to formulate these tests, we would be
1950
Bharat Batill Ltd.
v.
. Emptoy"s of
Bharat Ba1tk Ud.
.ll 11khafca J.
506 SUPREME COURT REPORTS [1950]
1950 in a position to determine whether a Tribunal function-
&
8
k Ltd ing under the Industrial Disputes Act is or is not a
arat /" • · judicial tribunal properly so called.
Employees of. Whether a particular function or activity is judi
Bharat Ba11k ua. cial or not is often a difficult question to decide. The
- point was elaborately dealt with
by Lord Sankey who
Mukherjca J. C
delivered the judgment of the Privy ouncil in Shell
Co.
of Australia v. Federal Commissioner of Taxation
(
1
)
•. The question raised in that case was whether the
Board of Review, which was set up in 1925 under the
Commonwealth Income Tax legislation, was a Court
exercising judicial powers of the Commonwealth ? The
High Court of Australia decided by a majority that it
was an administrative and not a judicial tribunal and
this majority judgment was affirmed in appeal by the
Privy Council. Lord Sankey remarked in course of
his judgment
that
" the decided cases show that there .
are Tribunals which possess
many of the trappings of
a
Court but which, nevertheless, are not Courts in the
strict sense of exercising judicial power. Mere exter
nals do not make a direction
by an ad hoc tribunal to
an administrative officer, an exercise by a
Court of
judicial power." ·
The actual decision in the case rested on the
ground tbat the Board of Review could not be a judicial
tribunal,
as its orders were not conclusive for any
purpose whatsoever. The decision, it
sc:ems, has only
a negative value. The Lord Chancellor enumerated a
series of negative propositions which
stated inter alia
that a tribunal is not necessarily a
Court because two
or more contending parties appear before it, nor
because it hears witnesses, or gives a final decision
which affects the right
of the parties. What the real
or positive test is, the
Privy Council did not care to
formulate, though the judgment quoted, with approval,
certain observations of Griffith C. J. given in another
Australian case, namely, Huddart Parker & Co. v.
Moorehead(•), which to some extent neutralised the
effect of the negative tests enumerated in the judgment.
The observations of Griffith C.]. are as follows:-
(1) (1931] A.O. 276. (2) 8 C.L.R. 330, at p. 357.
S.C.R. SUPREME COURT REPORTS 507
" lam of opinion that the words • judicial power'
...... mean the power which every sovereign authority
must have of necessity to decide controversies between
its subjects, or between itself and its subjcets, whether
the rights relate to life, liberty or property. The exer
cise of
this power does not begin until some tribunal
which has power to give a binding and authoritative
decision (whether subject
to appeal or not) is called
upon
to take
action."
It may be stated that the authority to hear and
decide on evidence between a proposal
and an opposi
tion though
it is one of the most essential of judicial
powers,
may be present is an administrative tribunal
also. In the majority of cases, administrative bodies
are also armed with
the powers of a
Court of Justice in
summoning withesses, administering oaths and punish
ing disobedience to its order made for
the purpose of
effecting
its enquiries (
1
). As a matter of fact, it is
usual to find that those features which were at one
time
attached exclusively to activities carried on in a Court of law are being extended to committees, com
missions or boards conducting enquiries under direc
tions or supervisi:m of the Government. The presence
or absence of these features, therefore, does not furnish·
any conclusive test to determine whether a particular
body is a judicial boay or not.
In the observations
of Griffith
C. J. quoted above, the learned Chief
Justice laid stress on the power to make a binding and
authoritative decision as the essential element in
the exercise of judicial power. The exact meaning and
implication of these expressions were the subject mat~
ter of discussion in later Australian cases and it was
held
by the majority of the Judges in Rola
Co. (Aust
ralia)
Pty. Limited v. The Commonwealth (
2
), that they
do not simply mean that if an authority is given
power to
dec!ide controverted questions of fact and its
determination is made binding on the parties to the
controversy, it would be sufficient to show that judicial
power was entrusted to such
authority. A determina
tion,
it was pointed out, may be binding on the parties
(1)
Vide W F. O'Co1'1'or v. Wald1'01' [1935) A.C. 67 at p. 82.
12) 69 C.L.R. 185.
65 I
1950
Bl!m·at Bcmk Uct.
v.
Employees of
Bharat Ba11/1 LU
Mukherjea J.
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ˆ ˜ / å ˜ ˜ } Ø ˜ ˜ ìR " € ‰ c ˜ ÿ B E˜ ˜
3 T W˜ F #¼ ˜ ˜ q æ †h ˜ ˜ í ˜ (˜ + ˆ Š \ ½ %˜
5 ˜
È t ˜
S ˜ r ç ˜ ‚˜ IT ˜ 8
; X˜ ÑU ˜ " $‹ & / ˜ { ˜ 8
˜ M˜
" # # ' ˜ ˜ %˜ ˜ U ˜ + ,˜
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$ èVp . ˜ Œ ˜ ò ˜ ¨ 2 3˜ ˜ q ©© # p˜ W r ¡˜
ór 0˜ X ˜ Ž: ˜
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˜ ˜ ª Œ ‘’ A¾˜ ! b&“ï E˜ \V'˜  E ˜ W A „˜ E ]˜ þ˜ 鿉˜ ^ ˜
$ ˜ ˜ ¢˜ _ (˜ t U˜ ˜ ˜ À ˜ \ ˜ ˜ < V ˜
ê - (˜ s 9 > K °˜ Ò ˜ ˜ •« I ” Á˜ S ! j ô ð u˜ ñ˜
$ ˜ ˜ (˜ & ; " ˜ ˜ j J - ±˜ ÿ ˜ `X ˜ ; ) ˜
a‚ *ò˜ ˜ ˜ ˜ ó˜ ˜ • Q )˜ = V (˜ ‹Â ˜
4˜ Ã
U˜
˜ ˜ ? ô Ä+ ˜ ˜ + 2 $ ‰–y,˜ É Š˜ ˜
[ -z ˜ ˜ T ˜ N a ˜ b |˜ ˜ ¬ 0˜ ˜ ƒ !˜ =˜
cY e˜ C— Ct w- = C ˜ 5˜ ˜ ! ˜ Å ë ˜ ' ²˜ Á -˜ ‡ ˜ U } £˜
$ ˜ .˜ eÙ s ‹- ˜ õŒ˜ ˜ 4™õš …d ‰ k " ˜ $ › öuö q˜ *÷˜
Ú z &˜ e ˜ ˜ ' ˜ ¢ ˜ /˜ ˜ l ˜ ® M˜ /˜ › Ž œ k u˜
S.C.R. SUPREME COURT REPORTS 509
process' ( i ). Sir Maurice Gwyer in his deposition be- 1950
fohreEthe
1
~ohmPmit
1
~ee on ~im
1
· s
9
t
2
e
9r' s Pt
otwdersthappo_i,nted
1
by Bharut~--;;,,k Ud.
t e ng is ar iament m s a e at a c ear v.
distinction is to be drawn between judicial and quasi-Employm of
judicial powers." The 'judicial power' was defined Bharat Bank u
by the witness as a power to decide a question of legal
right in a dispute between parties involving either a Muhh"rj<'n I
finding of fact or the application of a fixed rule or
principle
of law or involving both.
" The quasi-judicial
power," he defined as meaning "the power of giving
decisions on questions of differences of an administra-
tive
and not justiciable character which cannot be
determined
by reference to any fixed law or principle
of law
but are matters of administrative discretion and
judgment"
(
11
). In Cooper v. Wilson (
3
), Scott L. J.
quoted with approval and adopted as the basis of his
judgment the followfog passage from the report of the
above committee :
" A true judicial decision presupposes an exist
ing dispute between
two or more parties, and then
involves four requisites
:-(1) The presentation (not
necessarily orally) of their case
by the parties to the
dispute ; (2) if the dispute between them is a question
of fact, the ascertainment of the fact
by means of evi
dence adduced
by the parties to the dispute and often
with the assistance of argument by or on behalf of the
parties on the evidence ;
(3) if the dispute between them
is a question of law,
the submission of
ltgal argument
by the parties; and (4) a decision which disposes of
the whole matter by a finding upon the facts in dispute
· and an application of the law of the land to the facts
so found, including where required a ruling upon
any
!disputed question of law. A quasi-judicial decision (~qually presupposes an existing dispute between two
or more parties and involves (1) and (2) but does not
necessarily involve (3) and never involves (4). The
place of
(4) is in fact taken
by· administrative action,
the character of which is determined by the Minister's
free choice."
(1) See Robson's Justire and Administrative Law, p. H.
(2) Vide Committee of Minister's Powers, Minutes of Evd., Vol. II,
pages 15-16 and also Robson's Justice and Administrative Law, p. 319.
(3) (1937] 2 K.B. 309.
1950
Bl1arat Bank I..td.
v.
E1up!oyc.'s of
B.'iarat Baul: Ltd.
.\l11kherjec1 /
510 SUPREME COURT REPORTS [1950J
In our opinion these statements correctly bring
out the distinction between a judicial tribunal and an
administrative body which exercises quasi-judicial
functions. These being
the essential features which
distinguish the two classes
of tribunals, we would have
to ascertain with reference to the provisions of the
Industrial Disputes Act, which class or category of
tribunals
an Industrial Tribunal comes under.
The object of the Industrial Disputes Act, as set
out in the preamble, is
"to make provisions for inves
tigation
and settlement of industrial disputes and for
certain other purposes hereinafter
appearing." The
word "settlement" suggests the idea of establishing
compromise between the interests
of disputing parties.
There are three classes
of authorities provided for
by the Act who 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 parties to come to a fair and amicable settle
ment 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 thereupon to
the appropriate Government. Lastly, there are Indus
trial Tribunals composed of independent persons whn
either. are or had been Judges of a High Court or
District Judges or are qualified for appointment a,
High Court Judges.
· It will be seen from the descriptions given above
that the Board of Conciliation or Court of Enquiry
constituted under the Industrial Disputes Act coulq,
on no account, be regarded as judicial tribunals. To
enable them
to investigate facts they are however
armed
with certain powers of compelling attendance of
witnesses and production of documents etc_ These
provisions are
to be found in section 11 of the
Act.
The significant thing to note is, that there is no distinc
tion
made in this respect between Conciliation Boards
and
Courts of Enquiry on the one hand and Industrial
Tribunals on the other. The same powers are conferred
S.C.R. SUPREME COURT REPORTS 511
on the three classes of authorities without any distinc- 1950
tion whatsoever and sub-section (3) of section 11 further
Bharat Bank UJ.
Iays down that any .enquiry ?r investigation by a v.
Board, Court of Enqmry or Tribunal shall be deemed Employees of
to be a judicial proceeding within the meaning of sec-Bharat Bank UJ.
tions 193 and 228 of the Indian Penal Code. This
means
that proceedings before an Industrial Tribunal
.\Tutdwr;"a J.
-0r ·for the matter of that before the other two bodies
also could be deemed to be judicial proceedings only
for certain specified purposes. The ·express provision
making the proceedings judicial proceedings
for those
purposes only emphasises
that they are not judicial
proceedings otherwise.
·
Under section 15 (1), the Industrial Tribunal has
got to submit its award to the appropriate Government
and sub-section
(2) lays down that on receipt of such
an award, the appropriate Government shall by order
in writing declare the award to be binding. A different
provision has been made in regard to cases where the
Government itself figures as a
party to the dispute. In
such cases. if the Government considers it inexpedient
·On public grounds to give effect to the award either in
whole or in part,
it may, at the earliest opportunity,
lay the award for consideration before the Provincial
or
Central Legislative Assembly as the case may be
and the Legislative Assembly may by its resolution
.confirm, modify or reject the award. After
the
resolu
tion is passed, the Government is to declare the award
so confirmed or modified to be binding
[see sub-section
(3)]. Sub-section
(4) of section 15 expressly lays down
that an award declared to be binding under any two
of
the previous sub-sections shall not be called into
question in any manner whatsoever. The Government
is not merely to declare the award binding
but under
section
19 (3), it has got to specify the date when the
award would come into force and also to fix the period
during which it would remain binding, and this period
shall not exceed
one year.
It will be seen, therefore, that there is nothing in
the Industrial Disputes
Act from \vhich it could be
inferred that the Industrial Tribunal really functions
as a Court exercising judicial functions. Regarding
1950
Bharat Bank Ud.
v.
Br11Ployees of
Blzarat Bank Ltd.
512 SUPREME COURT REPORTS (1950}
the trappings or the external indicia of a Court, its
position is almost the same as that of the Board of
Conciliation or Court of Enquiry and Bakshi Sir Tek
Chand concedes that the latter are not judicial tribunals
at all. The powers of an Industrial Tribunal are cer
tainly wider than those of the other bodies, but it has
no power to make a final pronouncement which would
proprio 11igore be binding on, and create rights and
obligations between the parties. It is for the appro
priate Government to declare the award to be binding
and the part which the Government plays in such
matters is not a mechanical part merely, for the award
can really become operative only when the date of its
commencement and the period of its duration are fixed,
and it is for the Government and Government alone to
fix
the same. With regard to the other class of cases,
where
the Government itself is one of the parties to
the dispute, the position is still worse .. An award in
such cases is always subject to the contingency of
be
ing rejected or modified by the legislature before whom
it could be placed for.consideration at the option of the
Government. Where a contingency like this is attached
to an award, it can never be regarded as a final or
binding decision which is of
the essence of a judicial
proceeding. The fact
that in cases of disputes between
private employers and their workmen, the Government
has to accept the award as it is, makes no difference
in principle. Possibly, this rule was made in
con·
sideration of the status and training of the people who
constitute
the Tribunal, but nevertheless the
determi
nation cannot acquire any authority or force, so long
as the appropriate Government does not make the
declaration
and fix the time of its operation as
men
tioned above. In regard to the other class of awards,
where
the Government is one of the disputing parties,
the award on the face of it is neither the final nor the
authoritative pronouncement on the matter in dispute,
and it is
always in the powers of one of the disputing
parties to subject it to further scrutiny at the hands
of the legislature who can reject the whole award or
effect such changes in it as it considers proper. This
shows
the real
naturn of the Tribunal and it is not and·
l
S.C.R. SUPREME COURT REPORTS 513
~ould not be suggested that the Industrial Tribunal is
a Tribunal which exercises judicial functions when the
dispute is only between private employers
and their
workmen,
and it ceases to be such when the employer
is the Government itself.
\Ve would now examine the process by which an
Industrial Tribunal comes to its decisions and I have
no hesitation in holding
that the process employed is
not judicial process at all. In settling the disputes
between the employers
and the workmen, the function
-of the Tribunal is not confined to administration of
justice
in accordance with law. It can confer rights
and privileges on either party which it considers
reasonable
and proper, though they may not be within
the
terms of any existing agreement. It has not
merely
to interpret or give effect to the contractual
rights
and obligations of the parties. It can create
new rights
and obligations between them which it
considers essential for keeping industrial peace. An
industrial dispute
as has been said on many occasions
is nothing
but a trial of strength between the employers
on the one
hand and the workmen's organization on
the other and the Industrial Tribunal has got to arrive
at some equitable arrangement for averting strikes
and lock-outs which impede production of goods and
the industrial development of the country. The
Tribunal is not bound
by the rigid rules of law. The process it employs is rather an extended form of the
process of collective bargaining
and is more akin to
administrative than to judicial function.
In describing the true position of an Industrial
'l'ribunal in dealing with labour disputes,
this
Court in
Wes tern India Automobile Assoct'.ation v. Industrial
Tribunal, Bombay, and
others(
1
)
quoted with approval
.a passage from Ludwig Teller's
well known work on
the subject, where the learned author observes that "industrial arbitration may involve the extension of
existing agreement or
the making of a new one or in general the creation of new obligations or modification
of old ones, while commercial arbitration generally
(1) [1949] F. C.R. 321 at p. 345.
1950
Bharat Bank Lt.I.
v.
Employees of
Bharat Bank Ltd.
Mahajan].
514 SUPREME COURT REPORTS [1950)
19
5o concerns itself with interpretation of existing obliga-
Bharat
8
"'''' Ltd. hons a~d disputes rdating to existing agreements. "
"· The views expressed m these observations were
Employees of adopted in its entirety by this Court. Our conclusion,
Bhurat Ba"'' Ud. therefore, is that an Industrial Tribunal formed under
the Industrial Disputes Act
is not a judicial tribunal ~Inkhnj<·a .I and its determination is not a judicial determination
in the proper sense
of these expressions.
\Ve now come to the other question as to whether
an appeal could be taken to this Court against an
award of an
Industrial Tribunal by special leave under
article 136
of the
Constitution. Article 136 is a part
of Chapter IV of the Constitution which deals with the
Union Judiciary. The different jurisdictions
of the
Supreme
Court have been prescribed in a series of
articles commencing from article 131. Article
131 de
fines the original jurisdiction of the Supreme
Court. '
Article
132 deals with its appellate powers in cases
where substantial questions
of law as to the interpreta
tion
of the
Constitution are involved. Article 133
contains the provision relating to appeals in civil cases
from judgments, decrees and orders of the
High
Courts ; and article 134 makes provisions relating to
criminal appeals. Article 135 lays down that the
Supreme Court shall have jurisdiction and powers with
respect to any matter not covered by articles 133 and
134, if such jurisdiction and power could have been
exercised
by the Federal
Court prior to the coming
into force of the present Constitution. Then comes
article 136 which
runs as follows: "(1) Notwithstanding anything in this Chapter,
the Supreme Court may, in its discretion, grant special
leave to appeal from
any judgment, decree, determina
tion, sentence
or order in any cause or matter passed
or made by any court or tribunal in the territory of
India."
The article is worded in the widest terms possible.
It vests in the Supreme Court a plenary jurisdiction in
the matter of entertaining and hearing appeals by
granting of special leave against any kind. of jud~ment,
decree or order made by any Court or tribunal m any
S.C.R. SUPREME COURT REPORTS 515
cau5e or matter and the powers could be exercised in
spite of
and overriding the specific provisions
.for ap
peal contained in the previous articles. The contro
versy
so far as the present case is concerned mainly
centers round
the interpretation to be put
up!;>n two
words, namely, "determination" and "tribunal" used
in the article. Does the word "tribunal" mean a judi
cial tribunal only and is the expression "determina
tion" restricted to what is known as "judicial deter
mination"?
Sir Alladi's contention is that in interpreting
these words
we should follow the principle of ejusdem gen.~ris. "Determination," he says, must be taken
to be judicial-determination which is of the same nature
as decree, judgment, order or sentence; and ... tribu
nal " associated with the word " Court " could not but
mean "judicial tribunal."
Bakshi Sir Tek Chand on the other hand lays stress
on the fact
that the word
" determination " was not
in the original draft Constitution, and it was, subse
quently added, presumably with a· vjew to widen the
scope
of article 136 and include within it, the decisions
of administrative and quasi-judicial tribunals also.
He :points out that according to the definition given in
section 2 (b) of the Industrial Disputes Act,
"award "
means a determination either interim or final of an
industrial dispute
by an Industrial Tribunal.
There is undoubtedly something to be said in favour of both these views. The difficulty, in our
opinion, arises from the fact
that neither of these terms
"determination
" or " tribunal" has a fixed or defi
nite connotation in ordinary language. The word
" determination'' means and signifies the ending of a
controversy or litigation
by the decision of a Judge or Arbiltrator. It cannot be said that it is restricted
exclusively to proceedings in court. Likewise, the
dictionary meaning of the word " tribunal " is ' court
of justice' or
'seat of a Judge.' By 'Judge' we mean some authority by which contested matters are decidecJ,
.between rival parties: Here again, it is not possible
to say that the expression is applicable only to a
6,
1950
Bh({rat Bank Utl.
v.
Employees of
Bharat Ba111' Ltd.
516 SUPREME COURT REPORTS [1950]
1950 regular court of, law. If the tribunal is a full-fledged
l
·udicial tribunal, it is not disputed that its decisions
CJ/iarat Bank Ltd.
v would be proper subject-matter of appeal under article
Emplo;ccs of 136 of the Constitution. The question is whether this
nharat Rauk Ud. article. includes within its scope the determinations of
Alukhe1jea J.
quasi-judicial tribunals as well.
Our view is that ordinarily we should not put any
restricted interpretation upon the plain words of an
article in the Constitution and thereby limit our
powers
of granting special leave for appeals, which the Constitution for best of reasons did not choose to fetter
or circumscribe in any way. At the same time, we
must admit that some sort of restricted interpretation
may be unavoidable in view of
the context in which
particular words appear ;
and certain restrictions may
be implicit in the very purpose for which article 136
has been framed. Article 136 empowers us in
our
discretion to hear appeals from pronouncements of all
inferior courts
and tribunals. With regard to law
courts, no difficulty arises. As regards tribunals which
are not courts
in the proper sense of the expression, it
lllay not be proper, in our opinion, to lay down a hard
and fast rule that no appeals could, on any account,
be allowed against determinations of ·such tribunals.
There are numerous varieties of these adjudicating
bodies, whose structures
vary greatly in character and
composition and so do the powers and functions which they exercise. The best thing to do would be to
examine each type of cases as it arises and if we find
that with regard to determinations emanating from
certain
tribunals it is not possible for us to exercise
fully
and effectively the powers of an appellate
Court,
such determinations must be held to lie outside the
purview of article 136 of
the
Constitution.
This disability in the matter of exercising our
powers as
an appellate
Court might arise from the fact
that the rules and principles by which we ordinarily
judge
the soundness or otherwise of judicial decisions
are not capable of being applied to the determinations
of certain administrative tribunals. It might also
arise from the fact
that the law under which the
S.C.R. SUPREME COURT REPORTS
tribunal functions prevents us from making any effec
tive order which woutd be binding and operative of its
own force without the intervention
of some other
power
or authority; or there may be some kind of
contingency attached to it.
In our opinion,
these difficulties do confront us in
the entertaining or hearing of an appeal against the
decision
of an Industrial Tribunal. In the first place,
as we have said above, the determination
of an
Industrial "Tribunal does not
·become complete and
binding unless and until it is declared to be so by the
appropriate Government. Till the Government makes
such declaration, neither
of the parties to the dispute
can have any real reason for filing
an appeal. An appeal,.
if it lies, could be filed after the determination has been
declared binding. But in such cases,
is it the
determi
nation of the Tribunal merely which is challenged by
way
of appeal or is it the determination by the Tribunal
to which has been super-added a declaration by the
Government ?
The decision in the appeal would
un
doubtedly affect not merely the decision of the Tribunal
but that of the Government as well which is certainly not .
a tribunal within the meaning of article I 36. Assuming
again
that the award is set aside and we substitute our
own determination in place of the award given by the
Tribunal, will
our award be enforceable by itself or will
it require a declaration by the Government to make it
binding ?
If Government is itself a party to the
dis
~ute, will it ,he op.en to Governmen~ to place our deci
sion for consideration by · the Legislative Assembly?
And will tqe Legislative Assembly be competent to
reject
or modify our award ?
· These problems arise
because under section 15 the award under the Act
becomes binding only when the Government declares
it to be
so
and if our judgment takes the place of the
award
of the ,Tribunal, all the infirmities that attach to
the award must necessarily attach to
our judgment also.
The
other difficulty is no less formidable. As
~aid above, the Tribunal is not bound to decide the
disputes by application
of the ordinary law of the
land. A good deal depends upon
questions of policy
1950
Bharat Banlc Lid
v.
Employus of
Bharat Bank Lid.
Mukherjea ].
518 SUPREME COURT REPORTS (19S6J
u;o and public convenience. It is not possible for us to
81
;-;; k Ud judge the propriety of the decision by a reference to
iara •• "" · some standard or fixed rules and we think that the
EmPlosccs of very policy of the law prevents us from interfering
Bharat Bank ua. with the discretion exercised by the Tribunal.
Afok"""i"" J. \Vhere the direction is committed to any body or
a tribunal exercising quasi-judicial functions which are
not fettered by ordinary rules of law, the tribunal
should in the absense of any provision to the contrary
be deemed to have the final authority in the exercise
of
that discretion.
\Ve cannot sit in appeal over their
decision and substitute our own discretion for theirs.
Questions, however, may and do arise where such
.quasi-judicial body attempts to usurp jurisdiction
which
it does not possess. It may assume jurisdiction
under a mistaken view of law or refuse to exercise juris
diction properly
by adoption of extraneous or irrelevant
considerations ;
or there may be cases where in its
proceedings
the tribunal violates the principles of
natural justice. In all such cases the most proper and
adequate remedy would be by writs of certiorari or
prohibition and the
Court having authority may direct
that the decision of the body or tribunal might be
brought up to be quashed for Jack of jurisdiction or for
mistake apparent on the face of it ; and if the proceed
ings
had not terminated at that time, a writ of prohibi
tion may also be issued for preventing the tribunal from
exceeding
its jurisdiction. The issuing of such writs
would not be an exercise of appellate powers which
means
the rehearing of the case and passing of such
judgment which
in the opinion of the appellate
Court
the original tribunal should have made. The object
of
these writs is simply to keep the exercise of powers
by these quasi-judicial tribunals within the limits of
jurisdiction assigned to them by law and to restrain them from acting in excess of their authority. These
principles
are well settled and require no elucidation(
1
). Our conclusion, therefore, is that article 136 of the
Constitution does not contemplate a determination
given
by the Industrial Tribunal. (1) J?.ex v. Eh'ctric{fy Co111111issioncrs {192~1 1 K. B. 171; lloanf of
Education v. Rfrc [1911) A.C.179.
S.C.R. SUPREME COURT REPORTS 519
Even assuming for argument's sake that we have
got jurisdiction under article 136, the exercise of which
would ,depend upon the circumstances of each case, in
view of the reasons which we have set out above, this
is not · an appeal which, in our opinion, should be
a9mitted even if we have the power to do so.
-The result is that tlie preliminary objection
succeeds and the appeal fails and dismissed with
costs.
1950
Bharat Bank Ltd.
v.
Employeu •f
Bharat Bllllk
PATANJALI SASTRI J.-1 entirely agree with the PAiar!iali Sa11ri,
judgment just now delivered by Mukherjea J. and
I
have
oothing to add.
Appeal dismissed.
Agent for the appellant: Ganpat Rai for Tanubhai
C. Desai.
Agent for the respondents : R. R. Biswas.
Agent for the Union of India: P. A. Mehta.
DR. N. B. KHARE
fl.
THE STATE OF DELHI
, SHRI HARILAL KANIA C. J., SAIYID FAZL Au,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
' and MuKHERJEA, JJ.]
Constitution of India, Art 19, els. (1) (d) and (5)-Funda
mental rights-Freedom of movement-Law imposing restrictions
V alidity -Reasonableness of restrictions-Scope of enquiry-East
P11n1ab Public Safety Act, 1949, s. 4(1) (c), (3), (6)-Provisions
empowering Provincial Government or District Magistrate to extern
persons· mqking satisfaction of externing authority final, authorising
e:rternment for indefinite period, and directing that authority "may
communicate" grounds of e:rternment-Whether reasonable-Con
struction and Validity of Act.
1950
May 26.
The pivotal case of Bharat Bank Ltd. v. Employees of The Bharat Bank Ltd. stands as a foundational judgment in Indian constitutional and labour law, clarifying the expansive scope of Article 136 of the Constitution. This landmark ruling, now authoritatively documented on CaseOn, addressed the critical question of whether the Supreme Court of India possesses the jurisdiction to entertain an appeal against the award of an Industrial Tribunal. The decision delved deep into the nature of quasi-judicial bodies and cemented the Supreme Court's role as the ultimate arbiter of justice against determinations from any court or tribunal in the nation.
The central issue before the five-judge Constitution Bench was whether an 'award' passed by an Industrial Tribunal, constituted under the Industrial Disputes Act, 1947, could be subject to an appeal before the Supreme Court through special leave under Article 136 of the Constitution of India. In essence, the Court had to determine if an Industrial Tribunal qualified as a “tribunal” and if its award was a “determination” within the meaning of Article 136.
The legal framework under scrutiny revolved around Article 136(1) of the Constitution of India, which states:
"Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India."
The key terms in question were “tribunal” and “determination.” The scope of these words had to be interpreted in the context of the Industrial Disputes Act, 1947, which establishes Industrial Tribunals to adjudicate disputes between employers and employees but does not classify them as part of the traditional judicial hierarchy. The Act itself makes the Tribunal's award binding only after a declaration by the appropriate government.
The case presented a fascinating clash of legal interpretations, with compelling arguments from both sides and a split verdict from the Bench itself.
The appellant, Bharat Bank Ltd., argued that the term “tribunal” in Article 136 was intentionally used to cover a wide range of adjudicating bodies, not just conventional courts. They contended that an Industrial Tribunal, while not a court, possesses the “trappings of a court” — it hears evidence, examines witnesses, and makes decisions that affect the rights and liabilities of parties. Therefore, its decisions were quasi-judicial in nature and should fall under the Supreme Court's corrective jurisdiction to prevent miscarriages of justice.
The respondents, represented by the employees' union and the Union of India as an intervener, argued that an Industrial Tribunal is fundamentally an administrative body. Its primary function is not to administer law but to settle disputes based on principles of social justice, policy, and equity, often creating new rights rather than enforcing existing ones. They highlighted two key points:
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The majority, in a 3-2 decision, held that the Supreme Court did have jurisdiction to hear an appeal from an Industrial Tribunal under Article 136. Their reasoning was:
However, the majority clarified that this jurisdiction would be exercised rarely and only in exceptional circumstances, such as a gross miscarriage of justice or a violation of the principles of natural justice.
The dissenting judges provided a powerful counter-argument, asserting that an Industrial Tribunal is not a judicial tribunal and its awards are outside the purview of Article 136. Their key points were:
The Supreme Court, by its majority opinion, established that it has the jurisdiction under Article 136 of the Constitution to grant special leave to appeal from the determination of an Industrial Tribunal. This set a monumental precedent for the relationship between the judiciary and quasi-judicial bodies in India.
Despite establishing jurisdiction, the Court examined the merits of the specific case. Four of the five judges (the majority on jurisdiction plus the dissenting judges) found no substantial grounds to interfere with the Tribunal's award. Justice Mahajan alone was of the opinion that the award was procedurally flawed and should be set aside. Consequently, the appeal was ultimately dismissed.
In the case of The Bharat Bank Ltd., Delhi v. Employees of The Bharat Bank Ltd., Delhi, the appellant bank challenged an award by the All-India Industrial Tribunal which ordered the reinstatement of dismissed employees. A preliminary objection was raised regarding the maintainability of the appeal under Article 136 of the Constitution. A 3-2 majority of the Supreme Court held that an Industrial Tribunal, while not a court, performs quasi-judicial functions and falls within the wide scope of the term "tribunal" in Article 136. Thus, the Court has jurisdiction to hear such appeals, though it will exercise this power sparingly. However, on reviewing the facts of the case, the majority of the bench found no reason to interfere with the award, and the appeal was dismissed.
This judgment is a cornerstone of Indian constitutional and administrative law. For lawyers and law students, it is essential reading because:
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