The Bharat Bank Ltd., Delhi vs Employees of The Bharat Bank Ltd., Delhi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. XXXIV of 1950

Decision Date: 26 May 1950

Coram: Hiralal J. Kania, Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea

In this case the Supreme Court of India rendered its judgment on 26 May 1950 in the dispute between The Bharat Bank Ltd., Delhi, as petitioner, and the Employees of The Bharat Bank Ltd., Delhi, as respondents. The judgment was authored by Chief Justice Hiralal J. Kania, who sat with Justices Saiyid Fazal Ali, Mehr Chand Mahajan and B.K. Mukherjea. The bench composition is therefore recorded as Kania (Chief Justice), Fazal Ali, Mahajan and Mukherjea. The decision is reported as 1950 AIR 188 and 1950 SCR 459. It has been subsequently cited in a long series of reports, namely F 1953 SC 325 (13); F 1954 SC 520 (4); R 1955 SC 170 (20); F 1956 SC 66 (16); R 1956 SC 153 (6); R 1956 SC 231 (22,23); D 1956 SC 319 (13); R 1959 SC 1035 (14); R 1961 SC 1669 (13); RF 1962 SC 486 (15); R 1962 SC 1621 (60); F 1963 SC 630 (6); RF 1963 SC 677 (18,20); R 1963 SC 874 (8,9,17); R 1965 SC 1595 (18,19,40,41,42); R 1967 SC 1494 (13); RF 1972 SC 1967 (5); RF 1977 SC 2155 (23); R 1979 SC 1652 (29); E 1980 SC 856 (21); C 1980 SC 962 (77); R 1982 SC 78 (8); and RF 1992 SC 2219 (53,135). The principal issue before the Court concerned the appellate jurisdiction of the Supreme Court under Article 136 of the Constitution of India to entertain a special leave application against an award rendered by an Industrial Tribunal constituted under Section 8 of the Industrial Disputes Act, 1947, and whether the Tribunal’s functions were comparable to those of a judicial body. The headnote records that the majority opinion, delivered by Chief Justice Kania, Justice Fazal Ali and Justice Mahajan, held that the functions and duties of the Industrial Tribunal were very much like those of a body performing judicial functions, even though the Tribunal was not a Court, and therefore the Supreme Court possessed jurisdiction under Article 136 to entertain a special leave application, although it expressed a reluctance to do so. A separate opinion by Justice Mukherjea, joined by Justice Patanjali Sastri, dissented, stating that the Industrial Tribunal was not a judicial tribunal, that its determinations and the material upon which it decided were such that the powers of an appellate court could not be fully exercised, and consequently those determinations lay outside the scope of Article 136; the concurring judges further observed that even assuming jurisdiction, the present case was not suitable for an appeal. On the merits, the majority—Chief Justice Kania, Justice Fazal Ali, Justice Patanjali Sastri and Justice Mukherjea—found no ground to admit the appeal, while Justice Mahajan opined that the award was defective and should be set aside. The judgment formed part of Civil Appeal No. XXXIV of 1950, an appeal by special leave from the award of the All-India Industrial Tribunal (Bank Disputes) seated in Bombay.

Dated 1 January 1950, the case facts had been set out in the earlier judgment. The appellant was represented by Dr. Bakshi Tek Chand, assisted by Veda Vyas and S. K. Kapur. The respondents were represented by counsel identified as B. Sen. The Union of India was represented by Alladi Krishnaswami Aiyar with the assistance of Jindra Lal. On 26 May 1950 the Court delivered its judgment. The Chief Justice, Kania, began his opinion by stating that he had examined the judgments prepared by Justices Fazl Ali, Mahajan and Mukherjea in the matter. He observed that those judgments did not agree on the nature of the duties and functions of the Industrial Tribunal, and therefore he felt it necessary to add his own observations. In his view, the functions and duties of the Industrial Tribunal were closely comparable to those of a body that performed judicial functions, even though the Tribunal was not technically a court. He noted that the Tribunal’s rules required the taking of evidence, the examination of witnesses, their cross-examination and re-examination, and that the statute establishing the Tribunal imposed penalties for false statements made before it. He further explained that although the powers of the Industrial Tribunal differed in some respects from those of an ordinary civil court, the Tribunal possessed jurisdiction and authority to grant reliefs—such as ordering the reinstatement of a workman—that a civil court exercising its ordinary law-administering role did not have, and that this indicated the Tribunal was essentially operating as a judicial body. The Chief Justice added that the requirement that the Tribunal’s determination be followed by a government order making the award binding, the legislative power to revise a decision when the government was a party, and the government’s authority to fix the period of operation of the award did not, in his opinion, change the fundamental nature and character of the Tribunal’s functions. After reviewing all the provisions of the governing Act, he concluded that the Tribunal was performing functions very close to those of a court, though it was not a court in the strict technical sense. The next issue he addressed was whether, under Article 136 of the Constitution, the Supreme Court possessed jurisdiction to entertain an application for leave to appeal against a decision of such a body. He acknowledged that the Court unquestionably had power to issue writs of certiorari and prohibition with respect to the Tribunal’s work, and the remaining question was whether a right of appeal also existed. The Chief Justice held that the wording of Article 136 was sufficiently wide to confer jurisdiction on the Court to consider an application for leave to appeal, while recognizing that, given the Tribunal’s quasi-judicial nature, the Court would be very reluctant to grant such leave. Turning to the merits of the present application, he expressed the view that this case did not warrant the admission of an appeal. He indicated that the aggrieved parties could seek redress by pursuing other suitable legal proceedings. Accordingly, the appeal was to be dismissed with costs.

In this case the Court first considered whether the appeal was maintainable before the Supreme Court. Although the question presented some difficulty, the Court was persuaded that the appeal was indeed maintainable. The Court observed that Article 136 of the Constitution confers a very wide jurisdiction, but the true breadth of that provision can be understood only by comparing it with the preceding articles. Article 132 deals with appeals in matters involving a substantial question of law concerning the interpretation of the Constitution and uses the language “appeal … from any judgment, decree or final order.” Article 133, which governs appeals in civil cases, employs the same terminology. Article 134, which governs appeals in criminal cases, likewise provides for an “appeal … from any judgment, final order or sentence.” In Article 136 the words “judgment” and “decree” from Articles 132 and 133 are retained, and the words “judgment” and “sentence” from Article 134 are also retained. However, the phrase “final order” is reduced to the word “order,” and the reference to “the High Court” is replaced by a reference to “any court.” The provision also introduces the terms “determination,” “cause or matter,” and “tribunal,” which, in the Court’s view, expand the scope of Article 136 considerably. These terms indicate that an appeal may lie from a determination or order of any tribunal in any cause or matter. The Court then asked whether an Industrial Tribunal falls within the ambit of Article 136. If the inquiry were limited to the label attached to the body, the answer might be affirmative. Yet the Court emphasized that the substance of the tribunal’s functions must be examined. The Court inferred that, before an appeal can be entertained from a tribunal, the tribunal must perform a judicial function and must, to some extent, resemble a court. The Court found no doubt that an Industrial Tribunal possesses “all the trappings of a Court” and carries out functions that are unquestionably judicial. This conclusion is supported by the procedural rules governing the tribunal. The tribunal’s proceedings commence with an application that is, in many respects, akin to a plaint. The tribunal is empowered with the same powers that a civil court enjoys under the Code of Civil Procedure when trying a suit, including powers of discovery, inspection, granting adjournments, receiving evidence on affidavit, compelling the attendance of witnesses, ordering the production of documents, and issuing commissions, among others. Accordingly, the Court held that the appeal is maintainable and should be dismissed with costs.

The Tribunal was held to be treated as a civil Court within the meaning of sections 480 and 482 of the Criminal Procedure Code of 1898. Accordingly, the Tribunal possessed the authority to admit evidence and to call for further evidence at any stage of the proceedings, and it also had the power to administer oaths to witnesses. The parties appearing before the Tribunal were entitled to examine witnesses, to cross-examine them, and to re-examine them, and they could address the Tribunal after all evidence had been led. Moreover, a party was permitted to be represented by a legal practitioner, provided that the Tribunal gave its permission for such representation. The analysis did not stop with these procedural points. The principal function of the Tribunal was identified as the adjudication of industrial disputes, a function which necessarily required the presence of two or more parties with opposing claims and required the Tribunal to reach a final determination on how the dispute should be resolved. On this basis, it was observed that, at first glance, a Tribunal of this character could not be excluded from the operation of Article 136 of the Constitution. However, before any definitive conclusion could be reached on that issue, the Court needed to consider and dispose of certain contentions raised on behalf of the respondents. The first of those contentions asserted that the Industrial Tribunal did not perform a judicial or quasi-judicial function because it was not compelled to follow any recognized substantive law in deciding the disputes that came before it. The opposing view noted that, in deciding industrial disputes, the Tribunal sometimes had to override existing contracts and to create rights that were in conflict with contractual rights. In this context, it was observed that the same questions that had been presented before the Privy Council in Moses v. Parker, Ex-parte Mose, arose here, namely: (1) how the propriety of the Tribunal’s decision could be tested on appeal, and (2) what principles or canons the appellate Court should apply in deciding such an appeal. The Privy Council had recognised these as serious questions but had stated without hesitation that “if it were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow.” In the Court’s opinion, that observation provided a satisfactory answer to the difficulty raised. The Tribunal was required to adjudicate in accordance with the provisions of the Industrial Disputes Act, and although it might occasionally override contracts, a regular Court also exercises similar powers when it applies statutes such as the Bengal or Bihar Money-Lenders Act, the Encumbered Estates Act, and other comparable statutes. Accordingly, the Tribunal must observe the special legislation that governs its jurisdiction, even though that legislation may differ from the general law administered by an ordinary Court of justice. The appellate Court, therefore, could at a minimum verify that the Tribunal acted according to the rules that bound it, that it complied with the applicable statutory provisions, and that it did not exercise its powers in an arbitrary or capricious manner. The second, more serious, contention put forward argued that the Tribunal’s adjudication lacked all the attributes of a judicial decision because its award could not bind the parties until it was declared binding by the Government under section 15 of the Industrial Disputes Act, effectively rendering the adjudication merely advisory until such governmental confirmation.

In this case, the Court observed that the award rendered by an industrial tribunal becomes binding on the parties only after the Government declares it to be binding pursuant to section 15 of the Industrial Disputes Act. It was contended by some that the tribunal’s adjudication is merely advisory or a report and therefore has no effect until the Government gives it the force of law. The Court noted that a comparable objection had been raised in the earlier decision of Rex v. Electricity Commissioner’s, London Electricity (1) [1896] A.C. 245. A further authority, Joint Committee Co. (1920) Ex-Parte (1), examined whether a writ of certiorari should be issued in circumstances where the final decision of a commission required approval by the Minister of Transport and subsequently by the two Houses of Parliament. The judgment in that case recorded the Attorney-General’s argument that “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 Transport comes to no decision. He submits the order to the Houses of Parliament, who may approve it with or without modifications. The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not. Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to any control by the Courts.” The Court explained that, despite this argument, the provision stating that the final decision of the Commissioners is not operative until parliamentary approval does not preclude the view that the Commissioners themselves must act judicially within the limits prescribed by the enabling statute, and that the Courts retain the power to keep them within those limits. The Court further observed that it is the order issued by the Commissioners that ultimately takes effect; neither the Minister who confirms nor the Parliament that approves can, under the statute, create an order having operative effect on the matters in question. The Court found no authority compelling a conclusion that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari merely because it requires subsequent confirmation or approval, even where that approval must be given by Parliament; on the contrary, authorities support the opposite view. It is well settled that a writ of certiorari can be issued only against an order made by a judicial or quasi-judicial tribunal. Since it was not seriously disputed that a High Court may issue a writ of certiorari against an Industrial Tribunal, the Court found it difficult to hold that such a tribunal falls outside the jurisdictional sweep of article 136.

In this case the Court explained that when a lower court acts beyond the limits of its authority or assumes powers it does not possess, a higher appellate court always had the power to intervene, and could do so by means that are equivalent to a writ of certiorari. The Court then turned to section fifteen of the Industrial Disputes Act, 1947. It observed that where the appropriate Government was not a party to the dispute, the statute required the Government, on receiving the award of the Tribunal, merely to issue a written order declaring the award to be binding and to specify the date from which it would become effective and the period for which it would apply. The Court stressed that subsection fifteen-two was mandatory and that it expressly prohibited the Government from altering, cancelling, or adding to the award; the award had to be accepted exactly as rendered. Consequently, the Tribunal’s adjudication functioned as a final determination that bound both the parties and the Government.

The Court noted that a proviso to subsection fifteen-two introduced an exception. The proviso stated that if the appropriate Government was itself a party to the dispute and, in its view, it would be inexpedient on public grounds to give effect to the whole or any part of the award, the Government must, at the first opportunity, lay the award before the Provincial Legislative Assembly, or where the Central Government was involved, before the Central Legislative Assembly, together with the reasons for not making the declaration. The Government was then required to cause a resolution for consideration of the award to be moved in that Assembly, and the Assembly could, by resolution, confirm, modify, or reject the award. The respondents relied on this proviso to argue that the right of appeal from the award could not be contemplated.

The Court observed that the Act deliberately distinguished cases in which the Government was a party from those in which it was not. Although the proviso applied only to a very limited class of cases, the Court declined to express an opinion on whether an appeal to this Court would be permissible in those special circumstances. However, the Court held that where the Government’s sole duty was to declare the award binding, an appeal was indeed available. Finally, the Court referred to its earlier decision in Pritam Singh v. State, stating that the power conferred by article one-three-six of the Constitution was a special power to be exercised only in extraordinary situations, and that this principle necessarily limited the practical scope of appeals in the majority of cases falling under the Industrial Disputes Act.

Article 136 of the Constitution ordinarily permits an appeal, but in certain situations the nature of the case and the character of the tribunal from which relief is sought impose a limitation on that power, and a matter brought under the Industrial Disputes Act exemplifies such a situation. Turning now to the substance of the present appeal, the Court was not prepared to hold that the circumstances warranted interference with the adjudication performed by the Industrial Tribunal. The appellants had invoked the Court’s special jurisdiction on four separate grounds. Those grounds had been examined in detail by Justice Mahajan, who concluded that two of them were wholly inadequate to justify any interference. The present judgment shares that view regarding those two grounds and therefore adds no further comment on the points already articulated by Justice Mahajan. Regarding the remaining two grounds, the Court likewise found them to be entirely insufficient to support the exercise of the extraordinary power conferred by article 136. One of the remaining grounds asserted that the Tribunal’s award was rendered without any evidence. The Court did not find that this precise ground was raised in the application for special leave; rather, the appellants had merely contended that they were denied the opportunity to adduce evidence. On review of the Tribunal’s decision, it appeared that the evidence excluded by the Tribunal pertained to a single, isolated issue, and that the Tribunal was reasonably justified in refusing to admit that evidence because, in its view, it bore no direct relevance to the matter before it. After hearing the respondents on this particular issue, the Court was not persuaded that the Tribunal had committed an error of a magnitude that would warrant the Court’s intervention. The final ground urged by the appellants was that the award bore the signatures of only two Tribunal members, even though the Tribunal originally comprised three persons and the entire hearing had been conducted before all three. The Court held that this objection did not defeat the Tribunal’s jurisdiction, because section 8 of the Industrial Disputes Act does not obligate the Government to appoint a replacement when a member becomes unavailable during the proceedings. The provision requires the Government to appoint a successor only when the Chairman is unavailable; by contrast, the vacancy of an ordinary member may be filled at the Government’s discretion. In the case at hand, the Court’s attention was drawn to correspondence indicating that one of the members had been called upon to serve on another Tribunal, and that the award in question was pronounced after the Government had been informed of this circumstance.

In this case, the Court noted that the appeal was filed for special leave against a determination made by an Industrial Tribunal that had been constituted under Ordinance VI of 1949. The appellant, Bharat Bank Limited, Delhi, was a company incorporated under the Indian Companies Act. Its employees presented certain demands to the bank, and when the bank responded unfavourably, the employees initiated a strike on 9 March 1949. In response, the bank issued notices directing the workmen to resume their duties and, after the workers failed to comply, the bank dismissed a number of them between 19 March and 24 March 1949. The Central Government subsequently established a three-member Tribunal to adjudicate industrial disputes arising in banking companies, invoking section 7 of the Industrial Disputes Act, 1947. The matters listed in schedule II of the relevant notification were referred to the Tribunal under section 10 of the Act. Item 18 of that schedule dealt with “Retrenchment and victimization (Specific cases to be cited by employees).” The dispute pertaining to that item between Bharat Bank and its employees was heard by the Tribunal in Delhi, and the Tribunal rendered its award on 19 January 1950. The award was published in the Government of India Gazette on 4 February 1950 and was declared to be binding for a period of one year. Notably, the award bore the signatures of only two of the three Tribunal members. A preliminary objection was raised by the Central Government and the respondents, contending that the Supreme Court lacked jurisdiction to entertain a special-leave appeal from the Tribunal’s determination because the Tribunal did not exercise State judicial power and its award was not a judgment, decree or order of a Court within the meaning of appellate jurisdiction.

The Court observed that, because this was the first occasion on which special leave was sought from an Industrial Tribunal’s determination, it was necessary to examine the relevant constitutional provisions and to delineate the scope of the Supreme Court’s jurisdiction under article 136. Article 136 authorises the Court, at its discretion, to grant special leave to appeal from any judgment, decree, determination, sentence or order made by any court or tribunal in India, subject to the exclusion of orders made by courts or tribunals constituted under laws relating to the Armed Forces. The Court further considered that the procedure which the Chairman and the remaining members intended to adopt did not affect the substantive validity of the Tribunal’s award. In the view taken, the appeal could not succeed, and consequently the Court dismissed the appeal with costs, concluding that the attempt to obtain special leave was untenable.

In this case the Court examined the constitutional provisions relating to its own jurisdiction. It noted that Article 131 gave the Supreme Court original jurisdiction in certain disputes between the Government of India and the States and similar matters. It observed that Article 133, together with Article 132, dealt with the appellate jurisdiction of the Court in appeals from High Courts in civil matters within the territory of India. By reference to Article 134, the Court mentioned that a limited right of appeal in criminal cases had been provided. The Court explained that the Judicial Committee of the Privy Council, which had been the highest Court of appeal for India before 10th October, 1949, was not a criminal-appeal court in the same sense as the Supreme Court became under Article 134; the Privy Council could entertain criminal appeals only in exercise of the prerogative of the King. The Court then turned to Article 135 and stated that this article empowered the Supreme Court to hear all appeals that, under existing law, could have been heard by the Federal Court of India. The Court further referred to the Abolition of Privy Council Jurisdiction Act, 1949, which had come into force on 10th October, 1949, and observed that the Act transferred to the Federal Court of India all powers that had previously belonged to the Judicial Committee of the Privy Council in respect of cases or matters arising in India, whether those powers were based on statutory authority or on the King’s prerogative. The Court recited that the powers of the Judicial Committee had originally been conferred by the Judicial Committee Act, 1844 (7 & 8 Vict., C. 69), under which appeals lay to His Majesty in Council from judgments, sentences, decrees or orders of any court of justice in any British colony or possession abroad. Following this discussion, the Court indicated that Article 136 closely followed Article 135 in conferring on the Supreme Court all the powers of the Judicial Committee. The Court described the language of Article 136 as wide-ranging and comprehensive, granting overriding powers. It highlighted that the article began with the words ‘Notwithstanding anything in this Chapter,’ and interpreted this phrase as showing the Constitution’s intention to set aside the limitations on the Court’s appellate power contained in the earlier articles in extraordinary cases. The Court explained that the earlier articles dealt only with the right of appeal against final decisions of High Courts within India. By contrast, Article 136 superseded that qualification and empowered the Supreme Court to grant special leave to appeal even when the judgment or order originated from a court lower than a High Court. In other words, the article contemplated that special leave could be granted where a subordinate court had passed an order and the circumstances required that the order be set aside or reversed without following the ordinary procedural route of a regular appeal. The Court further observed that the term ‘order’ in Article 136 was not limited by the qualifier ‘final,’ and therefore the power to grant special leave could be exercised against interlocutory orders as well.

In this case the Court observed that article 136 introduced a new feature by authorising the grant of special leave against not only final judgments but also interlocutory orders. In addition, article 136 expressly extended the power to grant special leave to orders and determinations made by any tribunal operating within the territory of India. The report noted that the expression “tribunal” and the word “determination” were absent from the Judicial Committee Act, where the phrase used was “a Court of justice”. Their inclusion in article 136 has consequently generated considerable debate regarding the breadth of the provision. One line of argument contended that the terms “determination” and “tribunal” were introduced so that the appellate jurisdiction of this Court would encompass every order issued by tribunals of all kinds and descriptions. The opposite view held that the legislature inserted these words with great caution, intending that the Supreme Court, as the highest judicial authority, could intervene by granting special leave only when a tribunal was exercising the judicial functions of the State and its decision was rendered in the performance of that judicial power, and only when such intervention was necessary to achieve justice. Clause (2) of article 136 was highlighted for expressly excluding the jurisdiction of this Court in respect of military courts or tribunals. The Court also pointed out that articles 138, 139 and 140 empower Parliament to further enlarge the Supreme Court’s jurisdiction. Two specific questions were identified for resolution in the present matter: first, whether the word “tribunal” in article 136 should be understood in the same sense as “court” or whether it carries a broader meaning; and second, whether the term “determination” includes the determinations made by industrial tribunals or other similarly constituted bodies, or whether it is limited to determinations of a court or a tribunal possessing a purely judicial character. The counsel for the Central Government conceded that any tribunal—whether administrative, domestic or quasi-judicial—that acted beyond the limits of its jurisdiction could be subject to control by a High Court under article 226 through the issuance of a writ of certiorari. He further asserted that if the industrial tribunal involved in the present dispute could be shown to have exceeded its statutory authority, the appropriate remedy would lie elsewhere and not in a petition for special leave under article 136. The counsel summarised his position by stating that the expression “tribunal” denotes the seat of a judge or a court of justice, whose essential attribute is the capacity to render a final judgment between two parties that carries legal sanction by its own force.

The learned counsel argued that when the term “tribunal” is placed alongside the term “court,” it refers only to a tribunal that performs judicial functions of the State and does not cover tribunals possessing merely quasi-judicial or administrative powers. The counsel further maintained that for an order to be eligible for special leave to appeal under article 136, the order must be of the same character as one issued by a court, meaning that only a judicial determination of a dispute between two parties qualifies for appeal. Regarding an industrial tribunal, the argument was that the award gains binding effect only through a declaration by the government, and without such a declaration the award remains ineffective, lacking enforceability and therefore not appealable. It was also submitted that when the award concerns the government and its employees, the statutory procedure permits the government to reject the award, indicating that the tribunal by itself cannot create liability or alter rights. Counsel for the bank countered that whenever a tribunal—whether exercising purely judicial functions or also quasi-judicial functions—determines a matter in a judicial manner, that determination falls within the ambit of article 136. The bank’s counsel explained that an industrial tribunal does not perform administrative or executive duties; its sole mandate is to adjudicate industrial disputes between employers and employees, thereby acting as a judge. The tribunal’s powers are broader than those of an ordinary court because the statute authorises it to grant reliefs that courts cannot provide. This broader scope arises solely from the legislative empowerment and does not alter the fundamentally judicial nature of the tribunal. The counsel urged that the plain words of article 136 should not be interpreted narrowly, because the Constitution intended to vest this court with the widest possible authority to entertain appeals. It was further contended that in disputes between private employers and employees, and even in many cases involving the government and its employees, the tribunal’s decision binds the government, which lacks power to affirm, modify, or reject it. The only authority the government possesses is to announce the award and, by its declaration, give the award enforceability, a step that does not affect whether the determination is appealable under article 136. Finally, the bank’s counsel argued that whenever a miscarriage of justice results from a tribunal’s determination, this court should exercise its powers. Moreover, if the Constitution employs the word “tribunal” in the same sense as “court,” there is no need to introduce a separate definition in article 136. All tribunals that perform judicial functions are already encompassed within the meaning of “court.”

The Court concluded, after careful consideration, that the preliminary objection must be dismissed. It found no persuasive reason to restrict the plain language of the statute or to narrow the meaning of words that were intended to have the broadest possible reach. In interpreting the constitutional provisions, the Court emphasized that India was established as a sovereign, democratic republic with the purpose of delivering justice to every citizen. Consequently, the very foundations of the Republic rest upon the principle of justice, and the existence of the Court is intended to protect those foundations from any form of injustice that might arise anywhere within the nation. Article S2 of the Constitution empowers the Court to ensure that the fundamental rights granted to citizens are never compromised. Moreover, article 136 bestows on the Court a supreme authority to grant special leave to appeal against orders of courts and tribunals whenever such orders contravene the principles of natural justice and cause a serious miscarriage of justice. The Court observed that the exercise of these powers could only be contemplated in matters affecting the personal, property or status rights of individuals residing within Indian territory. The issue before the Court, therefore, was whether the jurisdiction created by clear, unambiguous language—words that carry their ordinary grammatical meaning and are of the widest amplitude—should be narrowed or restricted on the basis of the considerations raised by counsel Mr Alladi. The Court noted that accepting the construction proposed by the learned counsel would render certain terms in the article superfluous and contradictory to the spirit of the Constitution. It was presumed that the framers of the Constitution were fully aware that, prior to its commencement, numerous tribunals existed in the country performing administrative, quasi-judicial or domestic functions, some of which bore the trappings of a court yet could not properly be described as such. The framers also knew that the highest judicial authorities in India had held that any tribunal exercising judicial functions falls within the meaning of the term “court.” Accordingly, if the word “tribunal” in article 136 was meant to convey the same sense as “court,” its inclusion would be redundant because, irrespective of the label applied, such a tribunal would already be encompassed by the definition of “court.” The Court further explained that the term “court” possesses a well-established meaning in legislative history and practice. As highlighted in Halsbury’s Laws of England, the word originally referred to the King’s palace but later acquired the meaning of a place where justice is administered, as well as the persons who administer it.

The term “court” carries two related meanings: first, it denotes the place where justice is administered, and second, it refers to the individual or collective persons who dispense that justice. Under the Indian Evidence Act, the word is defined to include all judges and magistrates as well as every person authorised to receive evidence, except for arbitrators. This definition was crafted solely for the purposes of that statute and is not intended to be exhaustive. It is clear that for a body to qualify as a court, the persons composing it must be entrusted with judicial functions, meaning that they must decide disputed questions in accordance with law. Although parties may agree to confer judicial powers on arbitrators so that they can resolve a dispute according to law, such an agreement does not transform the arbitrators into a court. In the author's view, a group of persons can be described as a court only when their authority is derived from the State and they are exercising the State’s judicial power. In the case of R v London County Council, Lord Justice Saville explained that a “court” or “judicial authority” need not be a formal court so long as it performs judicial functions after hearing evidence, deciding between a proposal and an opposition, and that a tribunal which decides correctly after hearing evidence also satisfies this description. Lord Sankey, speaking in Shell Co of Australia v Federal Commissioner of Taxation, observed that many tribunals possess the outward features of a court yet do not exercise judicial power in the strict sense. Accordingly, such tribunals, while not full-fledged courts, perform quasi-judicial functions and fall within the definition of “tribunal” under article 136 of the Constitution. The earlier case noted that a tribunal is not necessarily a court because it may issue a final decision, hear witnesses under oath, have opposing parties appear before it, affect the rights of individuals, be subject to appeal, or receive matters referred by another body. The constitutional use of “tribunal” appears intended to encompass bodies that bear many of the formal characteristics of a court but do not meet the strict definition of a court. Various definitions of “judicial power” have been proposed over time, and the most authoritative definition was offered by Chief Justice Griffith in Huddart, Parker & Co v Moorehead, where he described judicial power as…

In this case, the Court explained that the expression used in section 71 of the Constitution denotes a particular power of the sovereign authority. That power, the Court said, must inevitably be possessed by the sovereign to resolve controversies between its subjects or between the State and its subjects. The controversies may involve rights relating to life, liberty or property, as stated by the Court in its judgment. The Court further observed that the exercise of this power does not commence [19311 A..C. 275. (2) 8 C.L.R. 330, 357] until a tribunal with authority to render a binding and authoritative decision is called upon to act. Such a tribunal may issue a decision that is final, whether or not it is subject to further appeal, as the Court noted with reference to the cited authorities. The Court accepted that a tribunal established under the Industrial Disputes Act, 1947, exercises quasi-judicial powers in practice. The phrase “quasi-judicial powers” implies that a portion of the State’s judicial power is vested in the tribunal and that the tribunal is called upon to exercise that portion. The Court then turned to an attempt to define the terms “judicial” and “quasi-judicial” in the decision of Cooper v. Wilson (1). The Court quoted the passage from that case which stated that a true judicial decision presupposes an existing dispute between two or more parties and involves four requisites. The first requisite is the oral presentation of each party’s case before the tribunal in a clear manner. The second requisite requires that, if the dispute concerns a question of fact, the tribunal must ascertain the fact by evaluating evidence adduced by the parties. The tribunal may often receive assistance from arguments presented on that evidence to clarify relevant points. The third requisite holds that, if the dispute involves a question of law, each party must be allowed to submit legal argument. The fourth requisite demands a decision that disposes of the whole matter by finding the facts, applying the law to those facts, and, where necessary, ruling on any disputed question of law. The Court explained that a quasi-judicial decision also presupposes an existing dispute between two or more parties and includes the first two requisites but does not necessarily include the third and never includes the fourth. The Court noted that the function of the fourth requisite is in fact performed by administrative action, the character of which is determined by the Minister’s free choice. The Court stated that the extent of judicial power exercised by an industrial tribunal would be examined later in light of the observations just set out. The Court further referred to passages from Professor Allen’s book on Law and Order, Chapter IV, page 69, which discuss various kinds of administrative tribunals operating in different countries. The Court also relied upon Porter on Administrative Law, 1929 edition, page 194, as another source supporting its analysis. The Court observed that administrative tribunals and domestic tribunals exist both in this country and in other nations. However, the Court said that the real issue in each case is to determine the extent of the State’s judicial power exercised by the tribunal. The Court concluded that tribunals which do not derive their authority from sovereign power cannot fall within the ambit of article 136. The Court added that a condition precedent for bringing a tribunal within the scope of article 136 is that the tribunal must be constituted by the State.

It was held that a tribunal could fall within the scope of article 136 only when it had been constituted by the State. Moreover, a tribunal would be excluded from article 136 if it possessed no part of the judicial functions of the State and performed solely administrative or executive duties. Conversely, a tribunal that exercised certain functions typical of a court of justice and displayed some of the hallmarks of a judicial body would come within the ambit of article 136 and would be subject to the appellate control of this Court whenever such control was deemed necessary in the interests of justice. The Court then examined whether a tribunal created under the Industrial Disputes Act, 1947, performed any of the functions of a court of justice and whether it discharged those functions in accordance with law, or whether it acted arbitrarily according to its own sense of right and wrong. Section 2(k) of the Act defined “industrial dispute” as any dispute or difference between an employer and an employee, between an employer and workmen, or between workmen and workmen, when the dispute related to employment, non-employment, terms of employment, or conditions of labour of any person. Such a dispute concerned the rights of employers and employees, and its resolution affected the terms of a service contract or the conditions of employment. The adjudication could significantly alter the pecuniary liability of an employer and might even attract penal consequences, while it could also have adverse effects on employees. Because the rights involved were valuable, the outcome of the dispute could always be expressed in monetary terms. Typically, the question for determination was the amount of money to be transferred from the employer to the employee, and the extent to which the principle of freedom of contract had to be altered to secure industrial peace. Section 7 of the statute conferred on an Industrial Tribunal the power to adjudicate such disputes and imposed upon it a duty to do so in accordance with the provisions of the Act. The language indicated that the tribunal must resolve the dispute according to law and not by any other means. Consequently, when the dispute was required to be adjudicated under the Act, the tribunal was obligated to follow legal rules, even though those rules might differ from those applied by an ordinary court of justice. It was noteworthy that the tribunal was to be composed of experienced judicial officers, and that its award was defined as a determination of the dispute. The term “adjudication” signified that the tribunal was to function as a judge of the dispute, effectively sitting as a court of justice rather than as an administrator.

The Court observed that an industrial tribunal functions solely as a body of justice and does not sit in the capacity of an administrator, noting that the tribunal is not granted any executive or administrative authority. It pointed out that section 38 of the Act empowers the government to make rules for giving effect to the provisions of the Act, and that such rules may address matters concerning the powers and procedures of tribunals, including rules on summoning witnesses, producing documents relevant to the dispute, and permitting the appearance of legal practitioners in proceedings under the Act. Rule 3 of the stipulated rules requires that any application for referring an industrial dispute to a tribunal be filed in Form A and be accompanied by a statement that sets out, among other things, the names of the parties and the specific matters in dispute, a requirement that is essentially analogous to the filing of a plaint in a suit. Rule 13 confers on the tribunal the power to administer oaths, while Rule 14 states that a tribunal may accept, admit, or call for evidence at any stage of the proceedings in such manner as it deems fit. Under Rule 17, at its first sitting the tribunal must call upon the parties to state their case, and Rule 19 makes provision for the conduct of ex-parte proceedings. Rule 21 provides that, in addition to the powers conferred by sub-section (3) of section 11 of the Act, a tribunal shall possess the same powers as a civil court under the Code of Civil Procedure when trying a suit in respect of discovery and inspection, granting of adjournments, receipt of evidence taken on affidavit, and the power to summon and examine suo motu any person whose evidence appears material; it further declares that the tribunal shall be deemed a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. Rule 21 also affirms that representatives of the parties appearing before a tribunal have the right of examination, cross-examination, re-examination, and of addressing the tribunal when all evidence has been called. Rule 30 provides that a party to a reference may be represented by a legal practitioner with the tribunal’s permission and subject to conditions imposed by the tribunal. Section 11(3) reiterates that a tribunal shall have the same powers as a civil court under the Code of Civil Procedure when trying a suit with respect to enforcing the attendance of any person and examining him on oath, compelling the production of documents and material objects, issuing commissions for the examination of witnesses, and any other matters that may be prescribed.

It was observed that every inquiry or investigation conducted by a tribunal is deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. In view of these statutory provisions, it is difficult to imagine that an Industrial Tribunal could perform any function other than a judicial one. The tribunal satisfies the first three requisites and characteristics of a court as previously defined, and it also embodies a considerable element of the fourth characteristic because it is not authorised to take administrative action of its own choosing. The tribunal must render its adjudication in strict accordance with the provisions of the governing Act, particularly those set out in section 7. Its members are individuals who are qualified to be, or who have previously been, judges. The tribunal’s duty is to resolve serious disputes between employers and employees that affect the parties’ freedom of contract; it is empowered to impose monetary liabilities, and non-compliance with its award is made punishable by law.

The scope of the powers that such a tribunal may exercise was considered in the Federal Court of India decision in Western India Automobile Association v. Industrial Tribunal, Bombay (x). That judgment noted that a tribunal of this kind can perform a function that no ordinary court can perform, namely, to add to or alter the terms and conditions of a contract of service. Because the tribunal has been entrusted with adjudicating disputes of a peculiar character, it is equipped with extraordinary powers. However, those powers are not derived from any discretion of the members but flow directly from the statute; they are the “rules of the game” that the tribunal must follow. The authority conferred on the tribunal bears the sanction of law and must be exercised according to those legal rules.

The adjudication must be based on evidence that has been lawfully adduced. The parties are entitled to be heard and may be represented by legal practitioners. They also enjoy the right to examine and cross-examine witnesses, and after the evidence is closed they may address the tribunal. The procedure laid down by the Act and its rules is modeled on the Code of Civil Procedure. Consequently, the Industrial Tribunal possesses all the essential attributes of a court of justice and performs no function other than the adjudication of disputes.

It is acknowledged that, because of the nature of the disputes it resolves, the law grants the tribunal wider powers than those ordinarily possessed by regular courts. Nevertheless, such powers do not diminish the conclusion that the tribunal is exercising judicial power. Statutes such as the Relief of Indebtedness Act and the Encumbered Estates Act have similarly conferred on courts powers that are not commonly associated with ordinary judicial authority but that affect contractual rights, as reflected in the citation [1949] F.C.R. 321.

The Court observed that the description of tribunals as merely exercising the judicial power of the State does not change their character, although their power differs in degree from that of ordinary courts and also differs to some extent from the power enjoyed by a regular court of law. The tribunals may correctly be called quasi-judicial bodies because they operate outside the ordinary judicial hierarchy, but that fact does not prevent them from falling within the scope of article 136 of the Constitution. The Court further noted that, for certain purposes, the tribunal is treated as a civil court under rule 21 of the applicable rules and under section 11(3) of the Act. Consequently, if the tribunal, acting as a civil court, exercises any of the powers specified in that section, its decisions become appealable to a District Judge, and, by implication, the jurisdiction conferred by article 136 would also be triggered in respect of those matters.

In addition, the Court pointed out that Chapter VI of the Act makes a breach of the terms of an award punishable under section 29 of the Act. Therefore, disobeying an award’s terms attracts penal consequences. Because of this, a tribunal’s determination does more than merely affect contractual freedom, impose financial liability on an employer, or grant financial benefits to employees; it also creates serious legal consequences, since failure to obey the award can result in liability for the penalties prescribed in Chapter VI. An award that carries such severe consequences cannot be said to have been issued by a body that does not perform some of the most important judicial functions of the State.

Mr. Alladi placed great emphasis on the provisions of sections 15 and 19 of the Act. Section 15 provides, first, that when an industrial dispute is referred to a tribunal for adjudication, the tribunal must conduct its proceedings expeditiously and, as soon as practicable after concluding them, forward its award to the appropriate Government. Second, upon receiving the award, the appropriate Government must, by a written order, declare the award to be binding. However, if 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, the Government must, at the earliest opportunity, lay the award before the relevant Legislative Assembly or, in the case of the Central Government, before the Central Legislature, together with a statement of reasons for not declaring the award binding. The Government must then cause a resolution concerning the award to be moved in that legislature. The legislature, by resolution, may confirm, modify, or reject the award.

Under sub-section (2), when a resolution is passed pursuant to the proviso, and provided that the award is not rejected by that resolution, the appropriate Government must, by a written order, declare the award to be either confirmed or modified in accordance with the resolution, and consequently to be binding. Section 19, subsection (3), contains a proviso, and except as provided in that proviso, an award that has been declared binding under this provision may not be challenged in any manner.

The Court observed that, concerning clause (4), it was rightly conceded that a statute enacted in 1947 to regulate industrial disputes could not, in any way, affect the constitutional provisions embodied in Article 136. Nevertheless, counsel vigorously argued that a tribunal’s award, by itself, possessed no binding effect unless the appropriate Government issued a written declaration in accordance with clause (2) of section 15. According to that argument, without such a declaration the award would remain a lifeless document without sanction, and therefore it could not be contemplated that the award would be appealable even by way of special leave. The Court found this contention to be unsound.

The Court explained that clause (2) of section 15 does not grant the Government any discretion to affirm, modify, or reject the award; the Government is compelled to declare the award binding and has no alternative option. Consequently, the decisive factor is the tribunal’s determination itself. In the absence of that determination, the Government would be unable to function, because it does not possess the authority to adjudicate the dispute or to alter the award in any manner. That adjudicatory power resides solely with the tribunal. The rights of the parties are affected by the substantive adjudication contained within the award, not by the Government’s automatic declaration. While it is correct that the Government’s announcement confers binding force on the award, this fact does not influence the question of whether the determination is appealable under Article 136 of the Constitution.

To answer the argument, the Court quoted the language of the decision in Rex v. Electricity Commissioners (1). The quoted passage states: “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 Transport comes to no decision. He submits the order to the Houses of Parliament, who may approve it with or without modifications. The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not. Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to any control by the Courts.”

In this case it was unnecessary to stress the constitutional significance of the contention. If the contention were given its full effect, it would imply that the safeguards and checks placed by Parliament, including protection against compulsory acquisition, could be set aside, and that new and burdensome obligations could be imposed without a parliamentary Act, merely by a resolution of both Houses of Parliament. The Court did not feel it necessary to decide whether, when the statute is properly interpreted, resolutions of the two Houses could have the effect asserted. Regarding the statutory provision that the final decision of the Commissioners becomes operative only after approval by both Houses, the Court found nothing inconsistent with the view that the Commissioners act in a judicial manner within the limits prescribed by the Act, and that the courts retain authority to ensure they remain within those limits. It was noted that the order issued by the Commissioners is the instrument that ultimately takes effect; neither the Minister of Transport who merely confirms nor the Houses of Parliament who merely approve give the operative force. Under the statute no other authority can make an order on the matters in question that has any legal effect. No authority was found that required the Court to hold that a proceeding cannot be a judicial proceeding subject to confirmation or approval, even when such approval must come from both Houses. On the contrary, authorities cited say otherwise. Although the cited observations arise from a case involving writs of prohibition and certiorari, they are applicable here. In the present circumstances the Government possesses no discretion, in ordinary cases, to modify or to reject the tribunal’s determination. The requirement that the Government declare the award by order after the tribunal’s final decision does not, in any way, contradict the view that the tribunal functions judicially. The statute itself contains a suggestion that the necessity for a governmental declaration to render the award binding does not affect its appealability. Article 136, clause (2), expressly exempts the decisions of military courts and tribunals from the scope of clause (1). Without that exception, those decisions would fall within clause (1). The Army Act makes clear that decisions of military tribunals or courts must be confirmed either by the Commander-in-Chief or other military authorities, and only after such confirmation can they operate. This requirement has never been regarded as affecting the right of appeal. The case of Rex v. Minister of Health supports this view. By virtue of the Housing Act, 1925, section 40,

In the legislation that governed local improvement schemes, a body that prepared such a scheme was required to submit a petition to the Minister requesting that the scheme be confirmed by an order. Under sub-section (3) the Minister, after reviewing the petition, could order a local inquiry and could then confirm the scheme by order, either with or without conditions or modifications. Sub-section (5) stipulated that once the Minister made the order, that order would have the same effect as if it had been enacted by the Act itself. The Court of Appeal held that when the Minister issued an order without first satisfying the statutory conditions, the order was ultra vires and therefore a writ of certiorari should be issued to quash it. The Court relied on the judgment of Scrutton L.J. in Rex v. Electricity Commissioners (2) and on the decision in Minister of Health v. The King (3), observing that judicial review by prohibition or certiorari is permissible where the Minister exceeds the powers conferred by the statute. The Court further noted that the requirement for a ministerial or governmental confirmation of an order does not in any way remove the jurisdiction of the courts to review that order. The principle was reinforced by the observations in Smith v. The Queen (4), where it was stated that in any proceeding having the character of a judicial proceeding, the party against whom the judgment is to operate must be given a chance to be heard. Consequently, the proceeding before an industrial tribunal is a judicial proceeding, and the contention that the Court cannot exercise its powers under Article 136 because a tribunal’s decision lacks force until a governmental declaration is made cannot be sustained.

The argument concerning section 19 was that an award declared binding by the appropriate Government under section 15 would only come into operation on a date specified by that Government and would remain in force for a period not exceeding one year, also fixed by the Government. It was asserted that the Government therefore had the power to determine both the commencement date and the duration of the award, and that this power affected the appealability of the tribunal’s determination. The Court held that the provision in section 19 does not alter the fundamental question of whether the tribunal’s determination is appealable. The Government indeed has certain functions to perform after an award is made, including the duty in some cases to declare the award binding and, in other cases where it is itself a party to the dispute, to exercise overriding powers. However, these overriding powers are premised on the existence of a valid tribunal determination. If the determination exceeds jurisdiction or violates natural-justice principles and is set aside under Article 136, there is no occasion for the Government to exercise its powers under the Act. When a valid award exists, the Government may exercise its powers in the manner it considers appropriate, and such exercise lies outside the constitutional jurisdiction of the Court.

In this case, the Court observed that the overriding powers of the Government included the authority to refer an award to the legislature when the Government considered that the award was not in the public interest. The legislature, in turn, possessed the power to modify, accept, or reject the award. These overriding powers were understood to depend on the existence of a valid determination made by the tribunal. The Court explained that if the tribunal’s determination exceeded its jurisdiction or was rendered in a manner that violated the principles of natural justice, and if such a determination was set aside by the exercise of power under article 136, there would be no occasion for the Government to exercise its powers under the Act. Conversely, when a valid award existed, the Court held that it could not be denied that the Government was free to exercise its powers in whatever manner it considered appropriate, and that such exercise lay outside the constitutional jurisdiction of the Court.

In support of its reasoning, the Court referred to the decision in Moses v. Parker (1). The passage on which emphasis was placed read in full as follows: “The Court has been substituted for the commissioners to report to the governor. The difference is that their report is to be binding on him. Probably it was 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 from all rules of law and equity, and all legal forms. How then can the propriety of their decision be tested on appeal? What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong? It seems almost impossible that decisions can be varied except by reference to some rule, whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules, and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case. If it were clear that appeals ought to be allowed such difficulties would doubtless be met somehow. But there are strong arguments to show that the matter is not of an appreciable nature.”

The Court noted that one might have expected the opinion in that case to lead to a conclusion that the Judicial Committee lacked jurisdiction to entertain an appeal. However, the Lordships in that decision based their ruling on the ground that the case was not suitable for the exercise of the King’s prerogative rather than on a jurisdictional limitation. The Court concluded that the observations made in Moses v. Parker did not have a relevant application to the statutory provisions that were under consideration in the present matter.

In this matter the Court found no difficulty in scrutinising whether the tribunal’s determination was proper. The Court explained that when relief is sought under article 136 it is not to replace the tribunal’s decision with its own. Interference with the tribunal’s extraordinary powers is permitted only where the tribunal has acted beyond its jurisdiction, has addressed the questions referred to it in a way that is likely to cause injustice, or has followed a procedure that contravenes the established rules of natural justice. Accordingly, if the tribunal denied a party a hearing, refused to record evidence, or acted arbitrarily or despotically, the Court may intervene. Such intervention does not transform the Court into a substitute tribunal nor does it give it the authority to adjudicate the dispute itself. Rather, the Court’s role on appeal is to set aside the award and to direct the tribunal to proceed within its statutory powers and to conduct the adjudication in accordance with natural-justice principles. The Court stressed that article 136 does not make it a mere court of error; its extraordinary powers must be exercised only in rare and exceptional cases guided by well-known principles. Applying those principles, the Court saw no insurmountable obstacle in the present case as described in the earlier passage. It was conceded that the High Court can invoke section 226 to quash an award, but a contention was raised that article 136 should not be used to exercise the same power on appeal. The Court expressed that it saw no reason for such a limitation, especially because a decision of the High Court rendered under section 226 can itself be appealed to this Court. In industrial disputes where speed is essential, any misuse of power by a tribunal must be corrected promptly and expeditiously. The Court noted that it is not unprecedented for a court endowed with special leave powers to bypass intermediate remedies when the situation is extraordinary. Reference was made to Bentley’s Privy Council Practice (3rd edition, page 125), which records instances where the Privy Council granted direct leave to appeal to the Queen in Council from the Supreme Court of Jamaica, avoiding an intermediate appeal that would have incurred considerable cost and delay, because each case involved a manifest point of law warranting discussion. The cited cases included In Re Barnett, Harrison v Scott, and Attorney-General of Jamaica v Manderson.

The Court observed that the language used in article 136 itself supports the approach it was taking. Article 136 authorises the Supreme Court to grant special leave to appeal against any sentence or order issued by any court. By contrast, every other article of the Constitution provides a right of appeal only against the final decisions of the highest court of appeal in the country, and does not permit bypassing the ordinary appellate hierarchy. Consequently, the Court held that the existence of a remedy in the form of a writ of certiorari for the petitioners does not limit the scope of the power conferred on the Supreme Court by article 136. Whenever some form of judicial review is available, the Supreme Court, being the highest court, may use its special authority to override the normal procedural route by granting special leave, thereby allowing the substantive issue to be decided at an earlier stage. The Court then turned to the authorities cited by counsel for the petitioner. Three Australian decisions were referenced, each dealing with the construction of sections 51, 71 and 72 of the Australian Constitution (63 and 64 Vict., c. 12). Section 72 provides that every Justice of the High Court and every Justice of any other court created by the Commonwealth Parliament shall, subject to the removal power contained in that section, be appointed for life. Section 71 vests the entire judicial power of the Commonwealth in the courts named therein and bars any other tribunal or body from exercising that power. Moreover, every court mentioned in section 71 must be constituted in the manner prescribed by section 72. The Australian cases centred on the interpretation of the phrase “judicial power of the Commonwealth.” The Court noted that such phraseology does not appear anywhere in the Indian Constitution, making it difficult to draw useful guidance from those Australian rulings for the present dispute. The Court further emphasized that the Constitution of India is not modelled on the Australian Constitution, and therefore observations made by Australian courts cannot be treated as reliable aids in interpreting language that has been drafted differently. The first Australian case discussed was Waterside Workers’ Federation of Australia v. J. W. Alexander Ltd. In that decision the court held that the power given by the Commonwealth Conciliation and Arbitration Act, 1904-1915 to the Commonwealth Court of Conciliation and Arbitration to enforce its awards formed part of “the judicial power of the Commonwealth” as defined by section 71, and consequently such power could be vested only in the courts specified by that section. Counsel for the petitioner further relied on a passage from the judgment of Justices Isaacs and Rich, appearing on page 467, which was subsequently quoted in the proceedings.

In addressing the relevance of foreign authority, the Court reproduced a passage from the earlier Australian decision, which stated that “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 Judiciary Chapter of the Federal Constitution. The arbitral portion of the Act is, in our opinion, perfectly good, subject to its severability from any other portion which may be bad.” The argument presented by counsel for the petitioner contended that the Indian Industrial Tribunal functioned as an arbitration tribunal of the same kind as those recognized in Australian law and therefore performed similar functions. The Court, however, observed that the language employed in section 15 of the Indian Act differs markedly from the terminology used in the Australian statute. The Indian legislation creates distinct bodies for distinct purposes, and the Industrial Tribunal—cited in 25 C.L.R.—has been established solely to perform the function of adjudication. It is not described anywhere in the statute as an arbitral tribunal, and the Act deliberately avoids the word “arbitration” in both its preamble and its operative provisions, even though the determination rendered by the Tribunal is termed an award. Because of these factual and linguistic differences, the Court held that it would be unsafe to rely on the observations made in the Australian case for interpreting the Indian legislation. The Court then turned to the next cited authority, Rola Co. (Australia) Proprietary Ltd. v. The Commonwealth, and examined the issue therein concerning whether the Women’s Employment Board created under the Women’s Employment Act 1942 exercised judicial power of the Commonwealth. That decision held that the Board performed functions of an arbitral character. The Court highlighted a passage from page 198 of the report, which explained that “an industrial award lays down rules of conduct for the future. It does not purport to ascertain and enforce existing rights; it is directed to the creation of new rights. It is urged on behalf of the plaintiff that a determination of the Committee does not create a rule of conduct binding the parties for the future, but that it authoritatively determines a possibly controverted question of fact and that the making of such an authoritative determination is necessarily an exercise of judicial power.” The judgment further quoted the frequently cited statement of Griffith C.J. in Huddart Parker & Co. Pty. Ltd. v. Moorehead, approved by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation, wherein Griffith C.J. opined that the words “judicial power” in section 71 of the Constitution signify “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 Court noted that, according to that definition, the exercise of judicial power does not commence until a tribunal possessing the authority to render a binding and authoritative decision is called upon to take action, emphasizing that the mere issuance of a decision is not the action referred to by the learned Chief Justice.

The Court observed that Regulation 5C authorises Committees to adjudicate disputes between individuals concerning their rights, and that the regulation intends the findings of such Committees to be both binding and authoritative. The Court noted that the citation to Griffith C.J.’s passage in Huddart Parker and Co. Pty. Ltd. v. Moorehead, as approved in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation, is frequently invoked to support the proposition that the power to render binding factual determinations necessarily constitutes judicial power. The Court expressed dissatisfaction with that interpretation, emphasizing that the decisive phrase in Griffith’s statement – “is called upon to take action” – requires careful analysis. The Court stressed that the phrase points to the necessity for a tribunal not merely to issue a decision, but also to possess the capacity to enforce that decision. Consequently, the mere issuance of a decision, even if final, does not satisfy the requirement of judicial power unless the tribunal can act to give effect to the decision.

In support of this view, the Court explained that a body which can render a binding and authoritative decision must also be able to take steps to enforce that decision before it can be said to possess all the attributes of judicial power as defined by the cited authorities. The Court referred to the detailed discussion that would follow concerning the Shell case, where the Privy Council endorsed the definition of judicial power but expressly held that a tribunal need not be a court merely because it delivers final decisions affecting the rights of the parties. The Court also cited Huddart Parker’s case, noting that Isaacs J. quoted Palles C.B.’s observation in R. v. Local Government Board for Ireland that for a tribunal to be regarded as a “court” or to possess jurisdiction, it must have the authority, within its jurisdiction, to impose liability or affect rights through its determinations.

The Court further reproduced the passage from the learned Chief Baron, which clarified that liability or the alteration of a right must arise directly from the tribunal’s determination, not merely from the factual finding itself. The Court underscored that the liability must exist or the right must be affected even if the tribunal’s determination later proves to be erroneous in law or fact. Under this view, a power that is contingent upon a later event – for example, the need for an officer to determine whether a contingency has occurred before exercising the power – does not bind the parties. The Court explained that such a contingent power is of a ministerial nature, and the officer’s determination in those circumstances does not create a binding obligation, because the existence of the power depends on a future occurrence that may be subject to challenge in subsequent litigation.

Conversely, the Court held that where a determination is binding on the parties even though it is founded on an erroneous view of the facts or of the law, the power that authorises that determination must be judicial. In such a situation, the authority to impose liability or to affect rights does not hinge on any subsequent contingency; the effect of the determination is immediate and enforceable. The Court therefore identified this as a modern usage of the term “judicial power.” This characterization aligns with the perspective expressed in the judgment of the Waterside Workers’ Federation of Australia v. Gilchrist, Watt and Sanderson case, which the Court referenced to illustrate the distinction between creating an immediate liability and merely laying down a rule of future conduct.

The Court, referring to the observations of Isaacs and Rich JJ., explained that creating an immediate liability in particular individuals is different from merely establishing a rule or standard of conduct for the future. It noted that when an ordinary court decides that B must pay money to A, the court is applying an existing standard of rights and duties that it did not create; consequently B becomes instantly liable to pay the specified sum to A. By contrast, the Court held that a decision of the Women’s Employment Board does not generate such an immediate liability, nor does a determination made by a Committee of Reference. To impose an instantly enforceable liability on any employer, for example to require payment of wages to a particular female employee, the employee or a representative acting on her behalf under regulation 9A must commence proceedings in a court of competent jurisdiction. If that suit succeeds, liability arises from the court’s determination. In such a proceeding, the finding of the Committee of Reference would serve only as evidence of the relevant facts; the Committee’s determination alone would not create liability. The Court further observed that the concluding words of the quoted passage distinguish the present case from the Australian case previously discussed. It explained that an award rendered by an Industrial Tribunal—whether for bonus, higher wages, or similar relief—is enforceable by the force of the statute and its coercive machinery, and it is not merely a declaration that provides a cause of action for the employee to sue for wages. While an arbitral tribunal’s decision cannot be enforced unless it is backed by a court of justice, an award of the Tribunal is enforceable directly under the Act through the statutory coercive mechanisms. The enforceable terms are those of the award itself, not the terms of any order issued by the Government; punishment follows the breach of the award’s terms, not a breach of the Government’s order. Moreover, the Government is obligated to declare the award binding and has no discretion to refuse. The Court acknowledged that a tribunal may decide existing rights and liabilities and may also lay down future rules of conduct, but it does so because the law authorises it and its decisions carry statutory sanction. Accordingly, the Government must give effect to the tribunal’s award, and the statute enforces it through its coercive machinery. In the Court’s view, therefore, the earlier decision cited has no relevance to the present matter. The Court also referred to the third case mentioned, Shell Co. of Australia v. Federal Commissioner of Taxation, noting that it concerned an income-tax issue and had already been considered in an earlier part of the judgment.

In this case, reference was made to the decision in Mohammad Ahmad v. Governor-General in Council, where the court held that an improvement trust did not constitute a civil court subordinate to the High Court under section 115 of the Code of Civil Procedure. The Court stated that this holding has no relevance to the issue before it. A similar point was discussed in Hari v. Secretary of State for India (3). The Canadian decision Labour Relations Board v. John East Iron Works Ltd. (4) was also cited, and the Court observed that that decision followed the same reasoning as the Australian cases previously mentioned. Counsel for the respondents, Mr. Sen, relied upon the case O’Connor v. Waldron (5). The Court quoted the passage on page 81 of that report, which explained that the law of judicial privilege has evolved over time. Originally the privilege was intended to protect judges sitting in recognised courts, as explained in the authorities cited as (1) [1931] A.C. 275, (3) I.L.R. 27 Bom. 424, (2) I.L.R. 1946 Lah. 16, (4) A.I.R. 1949 P.C. 129, and (5) [1935] A.C. 75. The purpose, according to those authorities, was to allow judges to perform their functions without fear of being held liable for words spoken in the exercise of judicial duty. The Court noted that the doctrine of privilege has subsequently been extended to tribunals that perform functions equivalent to those of an established court of justice. The Court further referred to Lord Esher’s observation in Royal Aquarium etc. Ltd. v. Parkinson (1), where it was said that privilege applies wherever an authorised inquiry is conducted before a tribunal that possesses attributes similar to a court of justice, and that the doctrine has never been extended beyond courts of justice and tribunals that act in a comparable manner. Accordingly, the Court concluded that the earlier authorities did not control the present question.

The learned counsel argued that the term “tribunal” in Article 136 of the Constitution should be limited to those bodies that exercise functions equivalent to a court of justice. The Court expressed no hesitation in holding that an Industrial Tribunal possesses attributes similar to a court of justice, based on the various statutory provisions previously discussed. Reference was also made to passages on pages 422 and 428 of Toronto Corporation v. York Corporation (2), a decision of the Municipal Board of Ontario, where the Board was characterised as merely an administrative tribunal. Subsequent reliance was placed upon R. v. National Arbitration Tribunal, Ex-parte Horatio Crowther & Co. Ltd. (3), a case dealing with the powers of the National Arbitration Tribunal. The Court considered that citation to be of little assistance. Counsel for the respondent, Mr. Alladi, again urged that the word “tribunal” in Article 136 was intended only for bodies such as the Board of Revenue. The Court found that suggestion unconvincing, observing that a Revenue Board possesses all the attributes of a court of justice and therefore falls within the definition of “court” when it adjudicates on the rights of parties. Consequently, the Court held that the cited authorities did not support a narrow construction of the term “tribunal” in Article 136.

The Court observed that the term “tribunal” had appeared in several earlier statutes, citing (6) [1892] 1 Q.B. 431, (7) [1938] A.C. & 15, and (8) [1947] A.E.R. 693. It noted that when the Constitution introduced the word in article 136, it was unlikely to intend a restriction only to bodies that were not called Courts but nevertheless performed the same or similar functions as Courts. Accordingly, the Court held that article 136 must be interpreted in a broad and liberal manner, not narrowly. An Industrial Tribunal, the Court reasoned, performs judicial functions in accordance with law and therefore falls within the scope of article 136, making an application for special leave from that Tribunal competent.

The next issue for the Court was whether it could exercise its extraordinary overriding powers in the present matter. It reiterated that such powers may be invoked only in cases of a grave miscarriage of justice or where the Tribunal’s procedure flagrantly violates basic legal standards. Counsel for the petitioner-bank, Dr Bakshi Tek Chand, advanced four grounds for invoking the special jurisdiction. The first ground asserted that the Tribunal had misinterpreted the word “victimisation” in clause 18 of the reference and thereby usurped jurisdiction over matters that were never referred to it. The Court rejected this argument, stating that article 136 does not permit intervention merely because of an alleged error of law, and that the Court is not a mere court of error. It further explained that “victimisation” is not defined in the statute, nor is it a technical legal term; it is an ordinary English word meaning that a person has been treated unjustly. Although some submissions suggested that, in industrial disputes, the word might acquire a special meaning referring to a victim of employer retaliation due to trade-union activities and not merely an unfair dismissal, the Court found that this interpretative nuance did not materially affect the Tribunal’s decision and therefore did not justify the use of the special power. The second ground relied upon the claim that the Tribunal incorrectly ordered reinstatement of individuals who had participated in an illegal strike, alleging that section 23(b) of the Act had been wrongly construed, leading to reinstatement of persons who, according to the Court, could not lawfully be reinstated.

In this portion, the Court observed that the employees had indeed been reinstated. The petitioners argued that, according to section 23(b) of the Act, once a matter relating to an earlier strike is referred to an industrial tribunal, any subsequent strike that occurs while that reference is pending is to be treated as an illegal strike. They maintained that this rule applied to the present case. The bank’s workers had gone on strike in December 1948. That industrial dispute was subsequently referred to an Industrial Tribunal for resolution. While the Tribunal was still considering that earlier dispute, the workers engaged in another strike. The second strike resulted in the dismissal of those employees, who have now been ordered to be reinstated by the present award. The Court noted that the Calcutta High Court had held that a strike undertaken during the period of truce, and more specifically during the pendency of an earlier dispute before a tribunal, is illegal even if the new strike is motivated by fresh demands that were not part of the earlier dispute. Within the Tribunal, one member expressed the view that this decision correctly interpreted the law, whereas another member thought the decision to be erroneous. Nevertheless, both members agreed that the legality of the second strike was not a material factor for deciding the matter that fell under Issue 18 of the reference. The Court further explained that the consequences of an illegal strike are enumerated in the Act, which provides certain penalties. However, the Act does not contain any provision stating that a person who has participated in an illegal strike is barred from reinstatement. The reference to the Tribunal had been made by the Government specifically with regard to an illegal strike, and consequently the Tribunal was obligated to render a decision on that reference. Item 18 of Schedule II of the Act expressly empowers the Tribunal to consider cases of victimisation that arise from a third strike, which the petitioner described as illegal. Even if the Tribunal’s view was mistaken, the Court held that the error did not rise to a level of significance that would warrant granting special leave under article 136. The next issue raised by counsel was the contention that the Tribunal’s award was rendered without any evidence. The Court said that this allegation needed careful examination. Upon review of the Tribunal’s proceedings, it was observed that, in accordance with Rule 17, the Tribunal at its first sitting invited both parties to present their cases. Counsel for the employees, Mr. Parwana, articulated the employees’ position, and counsel for the bank, Mr. Ved Vyas, set out the bank’s case. After the statements of case were recorded, the Tribunal concluded the hearing, allowed the parties to argue, and then proceeded to deliver its award. The Court pointed out that proof of victimisation in each individual case required evidence establishing certain factual matters, and the burden of proving victimisation rested on the employees. No evidence was produced on their behalf. Moreover, the statement made by Mr. Parwana was not given under oath. There was

The Tribunal conducted no examination or cross-examination of Mr Parwana. No affidavit was filed by Mr Parwana or by any employee to support the factual allegations he made. Although Mr Parwana produced an abstract of certain correspondence, the original documents were never produced to the Tribunal. The bank responded to Mr Parwana’s statements by filing a lengthy affidavit that disputed the facts he asserted. The Tribunal, however, made no reference to that bank affidavit, and no counter-affidavit was filed to answer the bank’s sworn statement. The bank also sought to introduce additional evidence. In particular, it pointed to a scurrilous letter, alleged to have been issued by one Bhatta-charya on behalf of the employees and circulated by them, which the bank claimed seriously damaged its reputation. The Tribunal denied the bank the opportunity to present this material. It was argued before the Court that the bank’s request to lead evidence on certain matters had been refused, but the record contained no support for that contention.

Consequently, the Court observed that the factual basis for the victimisation allegations was unaccompanied by any affidavit or any other evidence, rendering the Tribunal’s award unsupported by proof. Both the Act and the rules made thereunder require a proper hearing, discovery, inspection of documents and production of evidence; none of these procedural safeguards was observed by the Tribunal. The Court found it difficult to discern any material on which the Tribunal could have based its award, as the record contained none, and the respondents’ counsel was unable to point to any such material. At one stage during the arguments, the Court considered the possibility that the parties might have agreed to treat their statements of case as the sole evidence and might have chosen not to produce further proof. However, the bank’s affidavit directly contradicted all of Mr Parwana’s statements, indicating that the parties had not reached such an agreement.

The only documentary evidence before the Tribunal was the bank’s affidavit. If the factual claims contained in that affidavit were accepted, the Tribunal’s determination could not be sustained. The Court therefore concluded that the Tribunal’s procedure violated the principles of natural justice, rendering its award vitiated and necessitating its set-aside. The Court further noted that where the law does not provide a right of appeal, there is a danger that tribunals may act arbitrarily, resembling a “benevolent despot.” Such a mode of operation is incompatible with a democratic Constitution. The Tribunal members appeared to believe that, after hearing the parties’ statements of case, they could render a judgment based solely on their personal assessment of right or wrong, without any supporting material. The Court held that this approach is not authorised by the statute and is alien to democratic constitutional principles. In these circumstances, the Court recognised its compelling duty to exercise its extraordinary powers and to quash the award.

In the last argument presented by Bakshi Tek Chand, it was contended that although a Tribunal composed of three persons had been appointed to resolve the dispute, the award had been signed by only two of those members. The argument referred to section 16 of the Act, which provides that an award of a Tribunal must be in writing and must be signed by all members of the Tribunal, while also allowing any member to record a minute of dissent. The Court observed that the provisions of that section are mandatory and that they had not been fulfilled. It was established as common ground that the parties had stated their case at a hearing where all three members of the Tribunal were present and that the arguments were heard by all of them. No subsequent hearing took place that would have required the continuation of proceedings by a quorum of only two members. Since the entire matter had been heard by the three members, the award should have been signed by all of them. Consequently, an award signed by only two members could not be regarded as the award of the Tribunal that had been constituted by the Government. The Court therefore held that such an award was vitiated and needed to be set aside.

The discussion then turned to section 8 of the Act, which states: “If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.” The Court noted that the Tribunal had never been reconstituted by any Government notification. Under section 7, a Tribunal must be constituted in accordance with the Act by the Government. Although the Government had originally constituted a three-member Tribunal and possessed the power under section 8 to reconstitute it, that power had not been exercised. As a result, the Tribunal that originally existed was not the Tribunal that delivered the award in this reference, because only two members signed the award. It was alleged that one member had become unavailable and that the Government was under no obligation to fill the vacancy. The record contained no material proving that any member had become unavailable, nor the timing of such an event. Even if a member had become unavailable and the Government chose not to fill the vacancy, the Government would still have been required to reconstitute the Tribunal by formally declaring that the remaining two members would now constitute the Tribunal. An affidavit accompanied by two telegrams was filed on behalf of the respondents, revealing that Mr Chandrasekhara Aiyar, who had been one of the Tribunal members, in November 1949…

In this matter, it was established that Mr Chandrasekhara Aiyar had been appointed a member of the Boundary Commission in Bengal, while the other two members of the Tribunal sent a telegram to the Labour Ministry requesting either that the vacancy be filled or that the Tribunal be reconstituted. The Ministry responded that the Tribunal could continue to operate as it was and that the Government would, if necessary, fill the vacancy at a later stage. The Court did not pass judgment on whether that advice was correct or incorrect; the undisputed fact was that the Tribunal was never formally reconstituted. Moreover, it was not denied that Mr Chandrasekhara Aiyar continued to sit on the same Tribunal without a fresh nomination, and that the Tribunal was still hearing the same reference on the remaining issues that had been originally assigned to it.

The Court observed that there was no apparent reason why, after having heard the reference, Mr Aiyar could not have delivered the award even if he were located in Calcutta, or could have signed an award prepared by the other two members. The notion that a three-member body should hear a case while only two members actually decide it was described as contrary to every standard of fairness. The Court reasoned that the opinion of the third member might have influenced the others, or that the final decision could have been substantially different had the third member participated fully. In the present case, the two remaining members disagreed on an important question of law but ultimately reconciled their differences and issued a unanimous award. The Court noted that the presence of the third member in such a situation could have materially affected the outcome.

After considerable reflection, the Court concluded that it would be dangerous to condone proceedings of this nature. The Court stressed that when a body created by statute fails to operate in accordance with its statutory requirements, the exercise of exceptional powers becomes necessary; otherwise, the very purpose of the Constitution is undermined. The Court referred to the Privy Council decision in Fakira v. King Emperor (1). A.I.R. 1937 P.O. 119, wherein section 377(1) of the Code of Criminal Procedure, as modified for Hyderabad, provided that when the Court of the Resident consisted of two or more judges, the confirmation of a sentence or order had to be made, passed and signed by at least two of those judges. In that case the confirmation was made, passed and signed by only one judge despite the Court comprising two judges. The Privy Council held that the mandatory provisions of section 377 had not been complied with, rendering the confirmation invalid. Consequently, the appeal was allowed and the matter was remitted to the Court of the Resident. The Court further indicated that the provisions of section 18 of the Industrial Disputes Act are likewise mandatory, and cited a related decision under the Bar Councils Act reported in In re Advocate, Madras (1). A.I.R. 1942 Mad. 267, where the death of a tribunal member who had not signed the report caused the tribunal to cease to be properly constituted, and the report was consequently rejected.

In the earlier case of an Advocate from Madras, a member of the tribunal created under the relevant Act died before signing the report. The court held that because a member of the tribunal was missing, the tribunal was no longer properly constituted and therefore its report could not be taken into account. On the basis of that finding, the court ordered that the award be set aside. The court further directed the tribunal that was still in existence to reconsider the matter identified as item 18 of the reference and to forward its new award to the Government. The court emphasized that the employees could not be held liable for the procedural method adopted by the two members of the tribunal. Consequently, each party was required to bear its own costs in this Court, and the appeal was allowed to the extent specified in the order.

The appeal before this Court, taken on special leave, challenged an award made by the All India Industrial Tribunal on 19 January 1950. The tribunal had been formed by the Central Government under section 7 of the Industrial Disputes Act, and a large number of disputes (see A.I.R. 1942 Mad. 267) between several banking companies and their employees were referred to it for resolution. Among the banking companies was Bharat Bank Limited, which is the appellant in the present matter. The disputes between Bharat Bank Limited and its employees, who are the respondents, concerned, among other matters, allegations of retrenchment and victimisation made by the employees against the bank. The tribunal conducted its inquiry in Delhi concerning the cases that arose from the Delhi branch of the appellant. After completing its inquiry, the tribunal issued an award on 19 January 1950, finding that twenty-six employees had been improperly dismissed by the bank and directing that they be reinstated. The award also specified the salaries and allowances that were to be paid to the reinstated employees. The Central Government declared the award binding under sections 15 and 19 of the Industrial Disputes Act on 30 January 1950 and ordered that it remain in force for a period of one year. The present appeal was filed against that award. On behalf of the Indian Union, which intervened in the appeal, and also on behalf of the respondents, a preliminary objection was raised challenging the competence of the appeal. Sir Alladi Krishnaswami Aiyar, appearing for the intervener, argued that article 136 of the Constitution, under which special leave was granted to the appellants, does not permit an appeal against an award of an Industrial Tribunal because such a tribunal is not vested with judicial powers and its decision does not constitute a judicial determination. He characterized the tribunal as an administrative body exercising quasi-judicial functions, and therefore asserted that this Court could not act as an appellate court for a decision of a body that is essentially part of the administrative machinery of the Government.

The Court observed that it could not be said that an appellate Court possessed the authority to hear an appeal against a decision rendered by a tribunal that formed an integral part of the administrative machinery of the Government. In response to this preliminary objection, counsel for the respondents argued that the Tribunal created under the Industrial Disputes Act was, in substance, a Court or a judicial tribunal endowed with the power and authority to perform judicial functions. He further contended that article 136 of the Constitution used language sufficiently broad to permit an appeal from the award or determination of any tribunal, whether that tribunal was judicial in nature or not.

The Court identified two questions that needed to be examined at this preliminary stage. The first question concerned the character of the award or decision issued by an Industrial Tribunal established under the Industrial Disputes Act. The issue was whether such an award represented a judicial decision in the true sense of the term, or whether it was merely the pronouncement of an administrative or quasi-judicial body that, although capable of exercising some functions of a Court of law, could not be described as a Court. The second question related to the interpretation of article 136 of the Constitution, specifically the meaning to be attached to the words “tribunal” and “determination” appearing in that provision, and whether the wording was wide enough to encompass an adjudication or award made by an Industrial Tribunal.

Addressing the first question, the Court noted that the modern State possessed an intricate and complex system of government, and that over the past several decades there had been a substantial expansion of social legislation in England, in other foreign jurisdictions, and in India. Consequently, administrative and quasi-judicial tribunals had become a permanent feature of the social and political landscape. These tribunals functioned as adjudicating bodies for disputes concerning a wide range of economic and social matters. In essence, they were governmental bodies belonging to the executive branch rather than the judicial branch, although they were equipped in many instances with powers analogous to those exercised by Courts of law.

The Court then asked what tests or distinguishing characteristics, if any, could separate an administrative tribunal from a Court of law. It reasoned that once such tests were formulated, it would be possible to determine whether a tribunal operating under the Industrial Disputes Act qualified as a judicial tribunal in the proper sense. The Court acknowledged that deciding whether a particular function or activity was judicial in nature was often a difficult undertaking.

To illustrate the difficulty, the Court referred to the judgment of Lord Sankey in the Privy Council case of Shell Co. of Australia v. Federal Commissioner of Taxation. In that case, the question was whether the Board of Review, created in 1925 under the Commonwealth Income Tax legislation, constituted a Court exercising judicial powers of the Commonwealth. The High Court of Australia had decided, by a majority, that the Board of Review was an administrative rather than a judicial tribunal, a view that was later upheld by the Privy Council. Lord Sankey observed that, despite possessing many of the external trappings of a Court, a tribunal could still fail to be a Court in the strict sense of exercising judicial power, emphasizing that mere external form alone did not transform an administrative direction into a judicial exercise.

In the case being considered, the majority concluded that the Board of Review functioned as an administrative tribunal rather than a judicial tribunal, and this conclusion was upheld by the Privy Council on appeal. While delivering his judgment, Lord Sankey observed 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 externals do not make a direction by an ad hoc tribunal to an administrative officer, an exercise by a Court of judicial power.” The Court’s final ruling rested on the finding that the Board of Review could not be classified as a judicial tribunal because its orders were not conclusive for any purpose whatsoever. Consequently, the decision appears to possess only a negative value, offering no affirmative test for determining judicial character.

The Lord Chancellor, in his accompanying observations, listed a series of negative propositions. He stated, inter alia, that the presence of two or more contending parties before a body does not automatically make that body a Court, nor does the mere hearing of witnesses or the issuance of a final decision affecting the parties’ rights. The Privy Council did not endeavour to formulate a positive or definitive test for judicial power; instead, it quoted, with approval, certain observations made by Griffith C.J. in the Australian case Huddart Parker & Co. v Moorehead. Those observations, to some extent, mitigated the effect of the earlier negative propositions. Griffith C.J.’s remarks are recorded as follows: (1) [1931] A.C. 276. (2) 8 C.L.R. 330, at p. 357. He stated, “I am 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 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.”

The judgment further noted that the authority to hear and decide on evidence concerning a proposal and its opposition, although one of the most essential judicial powers, may also exist in an administrative tribunal. In many instances, administrative bodies possess powers traditionally associated with courts of justice, such as summoning witnesses, administering oaths, and punishing disobedience to orders issued for the purpose of conducting inquiries (1). It is common to observe that features once exclusive to courts of law—such as the ability to compel attendance and enforce testimony—are now extended to committees, commissions, or boards carrying out investigations under governmental direction or supervision.

Accordingly, the presence or absence of these procedural features does not provide a conclusive test for deciding whether a particular body is a judicial entity. In the observations of Griffith C.J., quoted above, the learned Chief Justice emphasized that the decisive element in the exercise of judicial power is the capacity of a tribunal to make a binding and authoritative decision. This emphasis underscores that merely adopting court-like procedures is insufficient; the essential test remains the tribunal’s ability to render a decision that independently affects the rights and obligations of the parties involved.

The Court observed that the essential element in the exercise of judicial power is the capacity to make a determination that directly affects the rights and obligations of the parties without reliance on any other authority. It further explained that the precise meaning and implication of this element were examined in later Australian decisions, particularly in the case of Rola Co. (Australia) Pty. Limited v. The Commonwealth (2). In that case the majority of the Judges held that merely granting an authority the power to decide disputed questions of fact and imposing a binding determination on the parties does not, by itself, demonstrate that judicial power has been conferred upon that authority. The Court emphasized that a determination may be binding on the parties (1) Vide W F. O'Connor v. Waldron [1935] A.C. 67 at p. 82, 69 C.L.R. 185, in the same manner as a contract binds its signatories. However, the crucial requirement is that the determination, by its own force and without the aid or instrumentality of any other power, must create enforceable rights and impose obligations upon the parties; in other words, the decision itself, irrespective of the factual findings, must generate rights and duties that are enforceable under the ordinary law of the land. The Court described this as one of the fundamental tests that distinguishes a truly judicial body from one that performs merely administrative or quasi-judicial functions. It noted that, at times, the decision or report of an administrative tribunal becomes operative only after it is accepted by the head of the department under which the tribunal conducted its inquiries, and the enforcement then proceeds through an administrative process. Alternatively, the tribunal’s decision may create rights between the parties that must be vindicated by initiating ordinary litigation in a court of law, and relief is obtainable only on the basis of a judgment or decree obtained in that action. The Court stressed that the essence of a judicial determination is that nothing further remains to be done except the enforcement of the judgment, a step that is automatically compelled by law. The Court identified another fundamental test distinguishing a judicial body from a quasi-judicial or administrative one: a judicial body must decide controversies according to fixed legal rules, whereas a quasi-judicial body is not strictly bound to apply the law in its decisions. While both types of tribunals may investigate facts based on evidence presented by the parties, the distinction lies in the fact that a judge in a judicial proceeding must apply the established, uniform law of the land to the facts found, whereas a quasi-judicial tribunal renders its decision based on administrative policy, considerations of convenience, or what it deems just and proper in the specific circumstances, rather than on fixed legal rules. Consequently, the process employed by an administrative tribunal to reach its decision does not constitute a “judicial process” as defined by law.

In this case the Court referred to the distinction between judicial and quasi-judicial powers that Sir Maurice Gwyer articulated in his 1929 deposition before the Committee on Minister’s Powers appointed by the English Parliament. Sir Maurice described “judicial power” as the authority to decide a question of legal right in a dispute between parties, a determination that may involve a finding of fact, the application of a fixed rule or principle of law, or both. By contrast he defined “quasi-judicial power” as the power to give decisions on questions of administrative differences that are not justiciable, decisions that cannot be resolved by reference to any fixed law or principle of law but instead rest on matters of administrative discretion and judgment. The Court then cited the decision in Cooper v. Wilson, where Scott L.J. quoted with approval a passage from the committee’s report. That passage set out that a true judicial decision presupposes an existing dispute between two or more parties and involves four requisites: (1) the presentation of the parties’ case, not necessarily orally; (2) where the dispute is a question of fact, the ascertainment of that fact by evidence adduced by the parties, often assisted by arguments on the evidence; (3) where the dispute is a question of law, the submission of legal argument by the parties; and (4) a decision that disposes of the whole matter by a finding on the facts and an application of the law of the land to those facts, including, where required, a ruling on any disputed question of law. By contrast a quasi-judicial decision also presupposes an existing dispute and involves steps (1) and (2) but does not necessarily involve step (3) and never involves step (4); the function of step (4) is replaced by administrative action whose character is determined by the minister’s free choice. The Court noted that this explanation, as also discussed in Robson’s Justice and Administrative Law at page 74 and page 319, correctly delineates the essential features that separate a judicial tribunal from an administrative body exercising quasi-judicial functions. Accordingly the Court said that these essential features must be examined in light of the provisions of the Industrial Disputes Act to determine the class or category of tribunal to which an Industrial Tribunal belongs. The preamble of the Industrial Disputes Act, the Court observed, states that its object is “to make provisions for investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing.” The use of the word “settlement” suggests the idea of establishing a compromise between the interests of the disputing parties, and the Act provides for three classes of authorities entrusted with the powers and duties of investigation and settlement of industrial disputes.

The Act creates three classes of authorities that are entrusted with the powers and duties of investigating and settling industrial disputes. The first class consists of conciliation officers or Boards of Conciliation, whose principal duty is to persuade the disputing parties to reach a fair and amicable settlement between themselves. The second class comprises Courts of Enquiry; although they are described as courts, their function is limited to investigating the matters assigned to them and then submitting reports on those investigations to the appropriate Government. The third class is the Industrial Tribunals, which are composed of independent persons who are either current or former High Court Judges, District Judges, or persons who are qualified to be appointed as High Court Judges.

From these descriptions it follows that a Board of Conciliation or a Court of Enquiry constituted under the Industrial Disputes Act cannot be considered a judicial tribunal. Nevertheless, to enable them to investigate facts, the Act equips them with certain powers such as the power to compel the attendance of witnesses and to require the production of documents. These powers are found in section 11 of the Act. Importantly, section 11 makes no distinction between Conciliation Boards, Courts of Enquiry and Industrial Tribunals with respect to these powers; the same powers are conferred on all three classes of authorities. Moreover, subsection (3) of section 11 provides that any enquiry or investigation conducted by a Board, a Court of Enquiry or a Tribunal shall be deemed to be a judicial proceeding for the purposes of sections 193 and 228 of the Indian Penal Code. This provision means that proceedings before any of these bodies may be regarded as judicial proceedings only for the specific purposes mentioned, and it emphasizes that they are not judicial proceedings in any other sense.

Section 15(1) requires an Industrial Tribunal to submit its award to the appropriate Government. Subsection (2) then directs that, upon receipt of such an award, the Government shall, by an order in writing, declare the award to be binding. A different rule applies when the Government itself is a party to the dispute. In such cases, if the Government considers, on public grounds, that it is inexpedient to give effect to the award, it may, at the earliest opportunity, lay the award before the Provincial or Central Legislative Assembly, as the case may be. The Assembly may, by a resolution, confirm, modify or reject the award, and after such a resolution is passed the Government must declare the award so confirmed or modified to be binding, as provided in subsection (3). Finally, subsection (4) of section 15 expressly states that an award declared binding under any two of the preceding sub-sections shall not be called into question in any manner whatsoever.

The Court observed that the provisions of the earlier sub-sections cannot be challenged in any manner. Under section 19(3) the Government is required not merely to declare an award binding but also to specify the date on which the award will come into force and to fix the period during which it will remain binding, a period that may not exceed one year. Consequently, there is nothing in the Industrial Disputes Act that permits the conclusion that an Industrial Tribunal functions as a court exercising judicial functions. In terms of external characteristics, the Tribunal’s position is virtually the same as that of the Board of Conciliation or a Court of Enquiry, bodies which have been acknowledged as not being judicial tribunals. Although the Tribunal possesses powers that are broader than those of the aforementioned bodies, it lacks the authority to make a final pronouncement that, by its own force, would be binding and would create rights and obligations between the parties. It is the appropriate Government that must declare the award to be binding, and this role is not merely mechanical, because the award can become operative only after the Government alone fixes the commencement date and the duration of its operation.

With regard to the other class of cases in which the Government itself is a party to the dispute, the situation is even more unfavorable to the notion of judicial authority. In such cases an award is always subject to the contingency that the Government may refer it to the Provincial or Central Legislative Assembly for consideration, where the legislature may confirm, modify, or reject the award. Because the award remains open to legislative alteration, it can never be regarded as a final or binding decision characteristic of a judicial proceeding. The fact that, in disputes between private employers and workmen, the Government is required to accept the award as rendered does not alter this principle. Although the rule may have been instituted in view of the qualifications and training of the Tribunal members, the determination does not acquire any enforceable authority until the appropriate Government makes the declaration and fixes the time of its operation as prescribed. When the Government is one of the disputing parties, the award on its face is neither final nor authoritative, and the disputing party retains the power to subject the award to further scrutiny by the legislature, which may reject the entire award or make changes deemed appropriate. This analysis reveals the true nature of the Industrial Tribunal.

The Court observed that it could not be suggested that an Industrial Tribunal performed judicial functions merely when a dispute involved private employers and their workmen, nor that such judicial character ceased when the employer was the Government itself. The Court then turned to examine the manner in which an Industrial Tribunal reaches its decisions and stated unequivocally that the process it employs is not a judicial process at all. In resolving disputes between employers and workmen, the Tribunal’s role is not limited to the administration of justice according to established law. Rather, it is empowered to confer rights and privileges on either side that it deems reasonable and proper, even if those rights do not arise from any existing agreement. The Tribunal is therefore not confined to merely interpreting or giving effect to the contractual rights and obligations of the parties; it may also create new rights and obligations that it considers necessary for maintaining industrial peace. The Court noted that, as has been repeatedly said, an industrial dispute is essentially a contest of strength between the employers on one side and the workers’ organization on the other, and the Tribunal must fashion an equitable arrangement that averts strikes and lock-outs which would disrupt production and hinder the country’s industrial development. Consequently, the Tribunal is not bound by the rigid rules of law. Its method is better described as an expanded form of collective bargaining and is more akin to an administrative function than to a judicial one. In explaining the true nature of an Industrial Tribunal in labour disputes, the Court cited the decision in Western India Automobile Association v. Industrial Tribunal, Bombay, and others, approving a passage from Ludwig Teller’s renowned treatise. Teller observed that “industrial arbitration may involve the extension of an 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 concerns itself with interpretation of existing obligations and disputes relating to existing agreements.” The Court adopted Teller’s observations in their entirety. From these considerations, the Court concluded that an Industrial Tribunal created under the Industrial Disputes Act does not constitute a judicial tribunal and that its award does not constitute a judicial determination in the proper sense of those terms. The Court then addressed the separate issue of whether an award of an Industrial Tribunal could be appealed to the Supreme Court by way of special leave under Article 136 of the Constitution. It explained that Article 136, which forms part of Chapter IV dealing with the Union judiciary, grants the Supreme Court discretionary power to grant special leave to appeal from any judgment, decree, determination, sentence or order of any court or tribunal in India. The Court further outlined that the various jurisdictions of the Supreme Court are set out in a series of articles beginning with Article 131, which defines its original jurisdiction, and Article 132, which deals with its appellate jurisdiction.

The Court set out that Article 132 deals with the Supreme Court’s appellate jurisdiction and that Article 133 provides for appeals in civil cases from the judgments, decrees and orders of the High Courts, while Article 134 makes provisions for criminal appeals. Article 135, the Court observed, states 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 before the Constitution came into force. The Court then turned to Article 136, which it reproduced in full: “(1) 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 Court noted that the language of Article 136 is the broadest possible, granting the Supreme Court a plenary jurisdiction to entertain and hear appeals by means of a special-leave order against any judgment, decree or order issued by any court or tribunal in any cause or matter, and that this power may be exercised even though specific appeal provisions exist in the preceding articles. The controversy in the present case, the Court said, centres on how to interpret the two expressions used in Article 136 – “determination” and “tribunal”. The first question is whether “tribunal” refers only to a judicial tribunal and whether “determination” is limited to a “judicial determination”. Sir Alladi argued that the principle of ejusdem generis should guide the construction; he maintained that “determination” must be understood as a judicial determination of the same character as a decree, judgment, order or sentence, and that the word “tribunal”, when read together with “court”, must mean a judicial tribunal. By contrast, Sir Tek Chand Bakshi stressed that the word “determination” was not present in the original draft of the Constitution and was inserted later, apparently to broaden Article 136 so that it would also cover decisions of administrative and quasi-judicial tribunals. He pointed to Section 2(b) of the Industrial Disputes Act, where an “award” is defined as a determination, interim or final, of an industrial dispute by an Industrial Tribunal. The Court recognised that both viewpoints have merit, but noted the difficulty that neither “determination” nor “tribunal” possesses a fixed or precise meaning in ordinary usage. The Court explained that “determination” signifies the conclusion of a controversy or litigation by the decision of a judge or arbitrator and is not confined solely to court proceedings. Likewise, the dictionary definition of “tribunal” is “court of justice” or “seat of a judge”. The Court therefore concluded that the ordinary meanings of these terms are broader than a narrow judicial conception.

In this passage the Court explained that the phrase “seat of a Judge” referred to any authority empowered to resolve disputes between opposing parties, and that such an authority could exist outside the framework of a regular court of law. The Court observed that when a tribunal functioned as a full- fledged judicial tribunal, its decisions unquestionably fell within the class of matters that could be appealed under article 136 of the Constitution. The real issue, the Court noted, was whether article 136 also embraced the determinations issued by quasi-judicial tribunals. The Court expressed the view that the plain language of a constitutional article should not be given a narrow construction that would curtail the power to grant special leave for appeals, a power that the Constitution intentionally left unrestricted. At the same time, the Court recognised that a limited interpretation might sometimes be unavoidable because of the specific context in which particular words appear and because certain implicit restrictions could be inherent in the purpose for which article 136 was enacted. The Court affirmed that article 136 conferred discretion to entertain appeals from the pronouncements of all inferior courts and tribunals. It added that no difficulty arose when the appeals originated from courts of law, but that it would be inappropriate to lay down an absolute rule that appeals could never be permitted against the determinations of bodies that were not courts in the strict sense of the term. The Court pointed out that there existed a wide variety of adjudicating bodies, each differing in structure, composition, powers and functions. Consequently, the Court held that each type of case should be examined on its own facts; if, on a particular occasion, it was found that the nature of a tribunal’s determination made it impossible for the appellate Court to exercise its powers fully and effectively, then such a determination should be considered outside the reach of article 136. The Court identified several reasons why such difficulties could arise: the principles normally used to assess the soundness of judicial decisions might not be applicable to the determinations of certain administrative tribunals; the statutory framework governing the tribunal might prevent the appellate Court from issuing a binding order without the involvement of another authority; or there might be a contingency attached to the tribunal’s decision. The Court noted that these challenges were especially evident in appeals against the awards of an Industrial Tribunal. It further observed that an Industrial Tribunal’s award did not become final and binding until the appropriate Government declared it so; therefore, until such a declaration was made, the parties to the dispute lacked a legitimate ground to file an appeal.

In this case the Court observed that until the Government issues a formal declaration, neither party to the dispute possesses a genuine basis for filing an appeal. An appeal, if it is permissible, could only be instituted after the Government has declared the Tribunal’s determination to be binding. The Court then questioned whether an appeal would be directed against the Tribunal’s original determination alone or against that determination together with the subsequent Government declaration. It noted that any decision rendered on appeal would inevitably affect not only the Tribunal’s award but also the Government’s declaration, and that the Government does not fall within the class of tribunals contemplated by article 136 of the Constitution. The Court further asked whether, assuming the award is set aside and the Court substitutes its own determination for the Tribunal’s award, that new award would be enforceable by itself or would still require a Government declaration to become binding. It also considered the situation where the Government itself is a litigant and asked whether the Government could refer the Court’s decision to the Legislative Assembly for consideration, and whether the Assembly would have the competence to reject or modify the Court’s award. These issues arise because, under section 15 of the relevant Act, an award becomes binding only after the Government’s declaration, and any shortcomings that attach to a Tribunal award would, by analogy, attach to a Court judgment that replaces it. The Court identified another formidable difficulty: the Tribunal is not obligated to resolve disputes by applying the ordinary law of the land, but instead bases its decisions on questions of policy and public convenience. Consequently, the Court found it impossible to assess the propriety of the Tribunal’s decision against a fixed standard or rule, and it recognized that the policy underlying the law prevents judicial interference with the Tribunal’s discretionary power. The Court held that when a direction is entrusted to a body or tribunal exercising quasi-judicial functions that are not governed by ordinary legal rules, that body, absent any contrary provision, should be deemed to possess the final authority in exercising its discretion. Accordingly, the Court stated that it could not sit in appeal over the Tribunal’s decision and replace the Tribunal’s discretion with its own. However, the Court acknowledged that questions may arise when such a quasi-judicial body oversteps its jurisdiction, either by assuming jurisdiction based on a mistaken view of law, by improperly refusing to exercise jurisdiction through irrelevant considerations, or by violating the principles of natural justice during its proceedings. In all such circumstances, the Court deemed that the most appropriate remedy would be the issuance of writs of certiorari or prohibition. These writs, the Court explained, could direct that the Tribunal’s decision be set aside for lack of jurisdiction or for a mistake apparent on the face of it, and, if the proceedings had not concluded, a writ of prohibition could be issued to prevent the Tribunal from exceeding its jurisdiction. The Court emphasized that granting such writs does not constitute an exercise of appellate power, that is, it does not amount to rehearing the case and substituting the Tribunal’s judgment with a new one. Rather, the purpose of the writs is solely to keep the quasi-judicial tribunals within the limits of the jurisdiction assigned to them by law and to restrain them from acting beyond their authority.

In cases where the error is evident on the face of the record, a court may set aside the decision on that ground. If the proceedings had not already ended, the court may also issue a writ of prohibition to stop the tribunal from acting beyond its jurisdiction. The issuance of such writs is not to be understood as exercising appellate authority, because it does not involve rehearing the matter or rendering the judgment the appellate court believes the original tribunal should have made. The purpose of these writs is merely to ensure that quasi-judicial tribunals exercise only the powers that the law has assigned to them and to prevent them from exceeding those powers. These principles are well settled and need no further explanation (1). Consequently, the Court concluded that Article 136 of the Constitution does not envisage reviewing a determination made by an Industrial Tribunal. (1) Rex v. Electricity Commissioners [1924] 1 K.B. 171; Board of Education v. Rice [1911] A.C. 179. Even assuming, for the sake of argument, that the Court possessed jurisdiction under Article 136, the exercise of that jurisdiction would depend on the facts of each case. In view of the reasons already explained, the Court held that the present appeal could not be admitted even if such power existed. Accordingly, the preliminary objection succeeded, the appeal was dismissed and costs were awarded. Justice Patanjali Sastri concurred fully with the judgment delivered by Justice Mukherjea and expressed no further comment. The appeal was dismissed. Counsel for the appellant was Ganpat Rai appearing for Tanubhai C. Desai. Counsel for the respondents was R.R. Biswas. Counsel for the Union of India was P.A. Mehta.