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

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 1 March, 1950

Coram: H.J. Kania, Meher Chand Mahajan, Saiyad Fazal Ali

The case was titled The Bharat Bank Ltd., Delhi versus The Employees of The Bharat Bank Ltd. and was decided on 1 March 1950 by the Supreme Court of India. The bench comprised Chief Justice H. J. Kania, Justice Meher Chand Mahajan and Justice Saiyad Fazal Ali. Chief Justice Kania recorded that he had examined the judgments prepared by Justices Fazal Ali, Mahajan and Mukherjea in the present matter. He observed that those judgments expressed differing views regarding the nature of the duties and functions of the Industrial Tribunal, and therefore he deemed it necessary to set out his own observations on the question.

Chief Justice Kania explained that, in his view, the Industrial Tribunal performed functions that were essentially judicial, although it was not formally a court. He noted that the Tribunal’s rules required the taking of evidence and the examination, cross-examination and re-examination of witnesses. The statutory framework establishing the Tribunal also imposed penalties for false statements made before it. He acknowledged that the Tribunal’s powers differed in some respects from those of an ordinary civil court; for example, the Tribunal could order the reinstatement of a workman, a remedy not normally available to a civil court. Nevertheless, he concluded that the Tribunal operated as a judicial body. He further stated that the fact that the Tribunal’s award had to be confirmed by a government order, that the legislature could revise the award when the government was a party, and that the government could determine the period for which the award would operate, did not change the fundamental character of the Tribunal’s functions. After reviewing all provisions of the governing Act, he held that the Tribunal discharged functions very close to those of a court, albeit not a court in the strict technical sense.

Addressing the question of jurisdiction under Article 136 of the Constitution, Chief Justice Kania observed that it was not contested that the Supreme Court possessed the power to issue writs of certiorari and prohibition against the Tribunal’s actions. The remaining issue was whether a right of appeal existed. He opined that the broad wording of Article 136 was sufficient to confer jurisdiction on the Court to entertain an application for leave to appeal against a Tribunal decision, while also indicating that, given the Tribunal’s quasi-judicial nature, the Court would be highly cautious in granting such leave. Finally, on the merits of the present application, he expressed that he would not entertain the appeal. He suggested that the aggrieved parties could seek redress through other appropriate legal proceedings. Consequently, he ordered that the appeal be dismissed and that costs be awarded.

The Court first identified the principal issue as whether the present appeal is cognizable by this Court. Although the question presented difficulties, the Court was overall inclined to conclude that the appeal does indeed lie. The Court noted that Article 136 of the Constitution is generally regarded as having a very broad scope, but its true breadth can only be understood by comparing its language with that of the preceding articles. Article 132 confers appellate jurisdiction of the Supreme Court in cases involving a substantial question of law concerning the interpretation of the Constitution, using the expression “appeal … from any judgment, decree or final order.” Article 133 deals with appeals in civil matters and employs the same wording. Article 134 addresses appeals in criminal matters, again using the phrase “appeal … from any judgment, final order or sentence.” In Article 136 the words “judgment” and “decree,” which appear in Articles 132 and 133, are retained, and the words “judgment” and “sentence” that appear in Article 134 are also retained. However, the term “final order” is reduced to “order,” and the reference to “the High Court” is replaced by a reference to “any Court.” The article further incorporates the terms “determination,” “cause or matter,” and “tribunal,” which the Court considered to have special significance and to expand the reach of Article 136. These terms indicate that an appeal may also arise from a determination or order issued by any tribunal in any cause or matter. The Court then asked whether an industrial tribunal falls within the ambit of Article 136. If the analysis were based solely on the label of the body, the answer would appear to be affirmative. Nevertheless, the Court emphasized the need to examine the tribunal’s principal functions and the manner in which it performs those functions, because it is implied that an appeal to this Court from a tribunal must be predicated on the tribunal performing some judicial function and possessing, at least in part, the character of a court. The Court observed without doubt that the industrial tribunal possesses, as is commonly expressed, “all the trappings of a Court” and carries out functions that are inherently judicial. This conclusion is supported by the procedural rules governing the tribunal’s proceedings. The proceedings commence with an application that, in many respects, resembles a plaint. The tribunal is vested with powers equivalent to those of a Civil Court under the Code of Civil Procedure when trying a suit, including authority to order discovery, conduct inspections, grant adjournments, receive evidence on affidavit, compel the attendance of witnesses, require the production of documents, issue commissions, and so forth. Consequently, the tribunal must be regarded as a Civil Court within the meaning of sections 480 and 482 of the Criminal Procedure Code, 1898. It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths. The parties appearing before it enjoy rights of examination, cross-examination, re-examination, and of addressing the tribunal after all evidence has been presented. Representation by a legal practitioner is also permitted with the tribunal’s permission.

The Court explained that the tribunal’s powers were analogous to those conferred by sections 480 and 482 of the Criminal Procedure Code of 1898. Accordingly, the tribunal could admit evidence and call for further proof at any stage of the proceedings, and it possessed authority to administer oaths. The parties appearing before the tribunal were entitled to examine witnesses, to cross-examine and to re-examine them, and they could address the tribunal after all evidence had been presented. Moreover, a party could be represented by a legal practitioner, provided that the tribunal granted its permission. The Court observed that the tribunal’s primary role was to adjudicate industrial disputes. This function necessarily involved the presence of two or more opposing parties and required the tribunal to reach a final determination on how the dispute should be resolved. On this basis, the tribunal could not be dismissed outright from the ambit of Article 136, although the Court noted that certain contentions raised on behalf of the respondents needed to be addressed before any final conclusion could be drawn. The first contention asserted that the industrial tribunal did not perform a judicial or quasi-judicial function because it was not bound to apply any recognised substantive law when deciding the disputes presented. The Court countered that, in resolving industrial disputes, the tribunal often had to override existing contracts and to create rights that conflicted with contractual entitlements. In this context, the Court identified that the same questions considered by the Privy Council in Moses v. Parker, Ex parte Moses, arose here, namely: how the propriety of the tribunal’s decision could be tested on appeal, and what principles should guide the appellate court in such a review. The Privy Council had regarded these as serious questions but had expressed confidence that, if appeals were permissible, the difficulties would be resolved. The Court found that this observation provided a sufficient answer to the difficulty raised. It held that the tribunal must adjudicate in accordance with the provisions of the Industrial Disputes Act, and that the fact that it sometimes overrides contracts did not distinguish it from ordinary courts, which also apply special statutes such as the Bengal or Bihar Money-Lenders Acts or the Encumbered Estates Act. Consequently, the appellate court could ensure that the tribunal adhered to the rules and binding provisions of the relevant special law and did not act arbitrarily or capriciously. The second, more serious, contention was that the tribunal’s adjudication lacked all the attributes of a judicial decision because the adjudication would not bind the parties until it was formally declared by the Government under section 15 of the Industrial Disputes Act.

The Court observed that, under section 15 of the Industrial Disputes Act, an award of the tribunal becomes binding only after the Government declares it to be binding. It was argued that the adjudication of the tribunal is merely an advice or report and has no effect until the Government gives it that effect. The Court noted that a comparable objection had been raised in the case of Rex v. Electricity Commissioners, London Electricity Joint Committee Co., Ex parte (2), where the question was whether a writ of certiorari could be issued. The earlier case was decided with the following remarks: “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 know decision. He submits the order to the Houses of Parliament, who may approve it with or without modifications. The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not. Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to any control by the Courts. It is unnecessary to emphasize the constitutional importance of this contention… In the provision that the final decision of the Commissioner is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that in arriving at that decision the Commissioner themselves are to act judicially and within the limits prescribed by the Act of Parliament, and that the Courts have power to keep them within those limits. It is to be noted that it is the order of the Commissioner that eventually takes effect; neither the Minister of Transport who confirms, nor the Houses of Parliament who approve, can under the statute make an order which in respect of the matter in question has any operation. I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding, subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. The authorities are to the contrary.”

The Court further explained that a writ of certiorari may be issued only against an order made by a judicial or quasi-judicial tribunal. It was not seriously disputed before the Court that a High Court could issue a writ of certiorari against an industrial tribunal. Consequently, the Court found it difficult to accept the proposition that the industrial tribunal fell outside the ambit of Article 136. The Court held that if a subordinate court acts beyond the jurisdiction granted to it or assumes a jurisdiction it does not possess, the appellate court has the authority to intervene and to grant the relief that is normally available under a writ of certiorari.

The Court observed that a writ of certiorari may always be issued to intervene where a tribunal exceeds its jurisdiction, and that such intervention follows the procedure contemplated by that writ. It then turned to section 15 of the Industrial Disputes Act, 1947, noting that when the appropriate Government is not a party to a dispute, the statute obliges the Government, upon receipt of the tribunal’s award, merely to declare the award binding and to specify the date from which it will operate and the period for which it will apply. Section 15(2) is expressed in mandatory terms, stating that “on receipt of such award, the appropriate Government shall by order in writing declare the award to be binding.” Consequently, the Government lacks authority to alter, cancel, or add to the award; it must accept the award exactly as rendered, which means that the tribunal’s adjudication constitutes a final determination that binds both the parties and the Government. The Court further noted the proviso to section 15(2), which provides that where the appropriate Government itself is 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 relevant Legislative Assembly together with a statement of reasons for not making a declaration. The Government must then cause a resolution to be moved for the Assembly’s consideration, and the Assembly may, 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 have been contemplated. However, the Act distinguishes between cases in which the Government is a party and those in which it is not, and the proviso applies only to a very limited category of cases. While the Court declined to express a definitive view on whether an appeal lies to the Supreme Court in such a special case, it indicated that where the Government’s sole function is to declare the award binding, an appeal should be available. The Court then briefly addressed the scope of appeals under Article 136 of the Constitution, recalling the decision in Pritam Singh v. State, which characterises the power conferred by Article 136 as a special power to be exercised only in exceptional circumstances. This principle, the Court affirmed, effectively narrows the practical reach of Article 136 in most disputes falling within its ambit, and in certain matters, including those arising under the Industrial Disputes Act, the very nature of the tribunal and the statutory scheme imposes additional limitations on the scope of any appeal.

The Court examined first the limited scope of an appeal that arises from a decision of an industrial tribunal, noting that the nature of the tribunal from which relief is sought often restricts the ground on which a higher court may interfere, and that a proceeding under the Industrial Disputes Act exemplifies such a limitation. Turning then to the merits of the present petition, the Court held that the case did not present a proper occasion for the Court to disturb the tribunal’s adjudication. The petitioners had invoked the Court’s special power under Article 136 of the Constitution on four separate grounds. Two of those grounds had already been examined in detail by Justice Mahajan, who had found them wholly inadequate to justify interference, and the present Court agreed with that assessment and did not repeat the earlier reasoning. The remaining two grounds were also, in the Court’s view, insufficient to support the exercise of the extraordinary jurisdiction conferred by Article 136. One of those grounds alleged that the tribunal’s award was rendered on no evidence at all. The Court observed that this precise allegation had not been pleaded in the special leave application; rather, the petitioners had merely contended that they were denied an opportunity to adduce evidence. Moreover, the tribunal’s own decision indicated that the evidence it considered related only to a single, isolated issue, and that the tribunal was entitled to refuse the admission of evidence on a point it deemed irrelevant to the question before it. After hearing the respondents on that particular matter, the Court was not persuaded that the tribunal had committed an error of a kind that would warrant judicial intervention. The final ground relied upon by the petitioners was that the award bore the signatures of only two members of the tribunal, even though the tribunal originally comprised three members and the entire hearing had been conducted before all three. The Court found this objection to be non-fatal to the tribunal’s jurisdiction because Section 8 of the Industrial Disputes Act does not obligate the Government to fill a vacancy that arises when a member ceases to be available during the proceedings; the provision requires the appointment of a successor only when the Chairman is unavailable, while the appointment of a replacement for an ordinary member is discretionary. In the present case, the Court’s attention was drawn to correspondence showing that one member had been called to serve on another tribunal, and that the Chairman and the remaining member had proceeded to pronounce the award after informing the Government of the procedure they intended to follow. Consequently, the Court concluded that the appeal could not be allowed, and ordered its dismissal with costs, concurring with the view expressed by Justice Mahajan.

This matter was an appeal filed under special leave against a determination made by an Industrial Tribunal that had been appointed pursuant to Ordinance VI of 1949. The appellant, Bharat Bank Limited, Delhi, was a company incorporated under the Indian Companies Act and was engaged in banking operations. Its employees had presented certain demands to the management, and after receiving an unfavourable reply they apparently went on strike on 9 March 1949. In response, the bank issued notices to the striking workers demanding that they resume their duties and dismissed a number of them between 19 March and 24 March because they failed to comply with notices. The Central Government then constituted a tribunal composed of three members to adjudicate industrial disputes arising in banking companies, exercising the power conferred by section 7 of the Industrial Disputes Act, 1947. The disputes enumerated in Schedule II of the government notification were referred, under section 10 of the Act, to this tribunal, and Item 18 of that schedule specified “Retrenchment and victimisation (Specific cases to be cited by employees).” The dispute covered by this item between Bharat Bank and its employees was heard before the tribunal in Delhi, and the tribunal issued its award on 19 January 1950. The award was published in the Gazette of India on 4 February 1950 and was declared to remain binding for a period of one year. Although the tribunal was composed of three appointed members, the final award bore the signatures of only two of those members. The Central Government, together with the respondents, raised a preliminary objection asserting that this Court did not have jurisdiction to grant special leave to appeal against the tribunal’s determination. They argued that the tribunal did not exercise the judicial powers of the State and that its determination was not a judgment, decree or order of a Court, and therefore was not appealable. Since this was the first instance in which special leave had been sought from an industrial tribunal’s determination, it became necessary to examine the constitutional provisions governing such jurisdiction. The Court also sought, where possible, to define the scope of its power under Article 136 of the Constitution. Article 136 provides that, notwithstanding any other provision in the same chapter, the Supreme Court may, at its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order made by any court. The provision further states that it does not apply to judgments, determinations, sentences or orders passed by courts or tribunals constituted under any law relating to the Armed Forces. Article 136 is located in Chapter IV of Part V of the Constitution, which deals with the Union Judiciary. Article 124 addresses the establishment and constitution of the Supreme Court, and Article 131 provides the Court with original jurisdiction in certain disputes between the Government of India and the States.

The Constitution provides that the Supreme Court has appellate jurisdiction over civil appeals from High Courts within India under Article 134. Article 134 also confers a limited right of appeal in criminal matters, distinguishing the present Court’s criminal appellate function from that of the former Judicial Committee of the Privy Council. Before October 10 1949, the Privy Council was the highest appellate authority for India but it did not operate as a criminal appellate court in the sense created by Article 134. The Privy Council could entertain criminal appeals only when exercising the sovereign prerogative of the King. Article 135 authorises the Supreme Court to hear all appeals that, under the laws existing at the time, could be heard by the former Federal Court of India. The Abolition of the Privy Council Jurisdiction Act, 1949, which became effective on October 10 1949, transferred to the Supreme Court every power that the Privy Council previously exercised in Indian cases, whether those powers derived from statute or from the King’s prerogative. The powers of the Privy Council were originally conferred by the Judicial Committee Act of 1844 (7 & 8 Vict. C. 69), which allowed appeals to His Majesty in Council from judgments, sentences, decrees or orders of any court of justice in any British colony or possession abroad. Article 136 closely follows Article 135 and thereby bestows on the Supreme Court all the powers previously enjoyed by the Judicial Committee. The wording of Article 136 is deliberately broad and comprehensive, granting overriding authority that begins with the phrase “Notwithstanding anything in this Chapter.” Those introductory words indicate that the Constitution intends to set aside, in extraordinary situations, the limitations on the Court’s appellate power that were contained in the preceding article. While Articles 134 and 135 dealt only with appeals from final decisions of High Courts, Article 136 overrides that restriction and enables the Court to grant special leave even when the judgment originates from any court within India. In other words, the provision contemplates granting special leave where a subordinate court has issued an order and the circumstances require that the order be set aside or reversed without following the ordinary appellate procedure. The term “order” in Article 136 is not limited by the qualifier “final,” making clear that the Court may exercise its special leave power over interlocutory as well as final orders. A further innovation introduced by Article 136 is the authority to grant special leave against the orders and determinations of any tribunal situated in the territory of India.

The term “court” alone was absent from the Judicial Committee’s Act, which used the phrase “a Court of justice.” The Constitution, by introducing the new expression in Article 136, created considerable debate about its scope. Another word that was not present in the Judicial Committee’s Act but was placed in Article 136 was “determination.” Questions were raised concerning the meaning that should be given to both “tribunal” and “determination” within the article. One line of argument maintained that the inclusion of “determination” and “tribunal” was intended to expand this Court’s appellate jurisdiction so that orders of tribunals of all varieties and descriptions would fall within its reach. The opposite view held that these words were inserted as a precaution, with the purpose of allowing the Court, as the highest judicial authority in the Republic, to grant special leave when a tribunal exercised the State’s judicial powers and the decisions rendered in that exercise required correction in the interests of justice. Clause (2) of Article 136 expressly excludes the jurisdiction of this Court in relation to military courts or tribunals. It is noteworthy that Articles 138, 139 and 140 empower Parliament to further enlarge the powers of this Court. Two principal issues arose for determination in the present matter. First, whether the word “Tribunal” in Article 136 is employed in the same sense as “Court,” or whether it carries a broader meaning. Second, whether “determination” in the article encompasses determinations made by industrial tribunals or other similarly constituted bodies, or whether it is limited to determinations of a purely judicial court or tribunal. Counsel for the Central Government conceded that if any tribunal—whether administrative, domestic or quasi-judicial—acted beyond its jurisdiction, the High Court could control it under the powers granted by Article 226 through the issuance of a writ of certiorari. The counsel further submitted that, should the industrial tribunal in this case be shown to have exceeded the limits of its statutory jurisdiction, the appropriate remedy would lie elsewhere and would not be a petition for special leave under Article 136. The counsel’s contentions can be summarized as follows. First, the expression “tribunal” denotes the seat of a judge or a court of justice, and its essential attribute is the ability to render a final judgment between two parties that carries legal sanction by its own force. Second, when the term “tribunal” is placed alongside the word “Court,” it should be understood to refer only to tribunals that perform judicial functions of the State, and should not be extended to tribunals that possess only quasi-tribunal or administrative character.

The learned counsel argued that the kind of orders for which special leave to appeal could be granted under Article 136 must be orders of the same character as those issued by a Court. In other words, the counsel maintained that an order would not be appealable unless it represented a judicial determination of a controversy between two parties. The counsel further explained that, in the context of an industrial tribunal, the award attains binding force only through a declaration made by the Government; the Government’s declaration was described as giving the award its “spark of life.” Without such a declaration, the tribunal’s award was said to be lifeless, lacking enforceability, and therefore not capable of being appealed. It was also contended that, in disputes between the Government and its employees that follow the procedure prescribed by the Act, the award could be rejected. Consequently, the tribunal, by its own determination, could not impose liability or affect rights. On the opposite side, Dr Bakshi Tek Chand, counsel for the bank, argued that whenever a tribunal—whether performing judicial or quasi-judicial functions—determines a matter in a judicial manner, that determination falls within the ambit of Article 136. He stated that an industrial tribunal does not perform administrative or executive functions; its duty is to adjudicate industrial disputes, essentially acting as a Judge in disputes between employers and employees. Although the tribunal’s powers are broader than those of an ordinary Court because it can grant reliefs unavailable to a Court, this broader scope arises from the statutory powers conferred upon it.

The counsel for the bank further argued that the plain words of Article 136 should not be interpreted narrowly, since the Constitution intends to grant the Court its widest possible power. He also contended that, in disputes involving private employers and employees and, in some cases, the Government and its employees, the tribunal’s decision binds the Government, which possesses no authority to affirm, modify, or reject the decision. The Government’s role, according to this view, is limited to announcing the decision and, by its declaration, giving it enforceability; this limitation does not affect the appealability of the determination under Article 136. Finally, it was argued that the Court should exercise its powers whenever a miscarriage of justice occurs through any tribunal’s determination, and that if the Constitution’s use of the term “tribunal” was intended to be synonymous with “Court,” it was unnecessary to import a separate definition into Article 136. After considerable reflection, the Court concluded that the preliminary objection should be overruled, finding no persuasive reason to restrict the plain meaning of the statute or to impose a narrow interpretation on its broad language.

In interpreting the language of the statute, the Court declined to adopt a restrictive meaning for words that possess the broadest possible scope. While construing the constitutional provisions, it was emphasized that the Republic of India was established as a sovereign democratic nation with the primary purpose of delivering justice to every citizen. In effect, the very foundation of the Republic rests upon the principle of justice, and the judiciary was created to protect that foundation from any form of injustice that might arise. Under Article 3 of the Constitution, the Court is charged with ensuring that the fundamental rights granted to citizens are not infringed in any manner. Article 136 further confers upon the Court an overarching authority to grant special leave to appeal against judgments of courts and tribunals when such judgments violate the principles of natural justice and cause a serious miscarriage of justice. This extraordinary power was intended to be exercised only in matters that affect the personal, property or status rights of persons residing within Indian territory. Consequently, the matter before the Court was whether the jurisdiction articulated in clear, unambiguous terms and expressed in words of plain grammatical meaning, which have the widest possible amplitude, should be constrained by the considerations advanced by Mr. Alladi. The interpretation proposed by the learned counsel, if adopted, would render certain expressions in the article superfluous and redundant, thereby contradicting the spirit of the Constitution. It is presumed that the framers of the Constitution were fully aware that, prior to the Constitution’s commencement, a variety of tribunals existed in the country performing administrative, quasi-judicial or domestic functions; some of these tribunals even bore the outward appearance of courts, yet they could not properly be described as such. It is also presumed that the Constitution-makers recognised that the Supreme Court and other apex courts in India had previously held that every tribunal performing judicial functions falls within the meaning of the term “Court.” If the term “tribunal” in Article 136 was intended to carry the same meaning as “Court,” then its inclusion would be unnecessary, because any body that exercises judicial powers, irrespective of the label applied to it, already falls within the definition of a court. The term “Court” possesses a well-settled meaning in legislative history and practice. As noted in Halsbury’s Laws of England, the word originally referred to the King’s Palace but later acquired two senses: first, a place where justice is administered, and second, the persons who administer that justice. The Indian Evidence Act defines “Court” to include all judges, magistrates and all persons authorised to take evidence, except arbitrators, and this definition is not exhaustive but was framed solely for the purposes of that Act.

The Court noted that, for the purpose of the Act, a body can be described as a Court only when the person or persons who constitute it are entrusted with judicial functions, that is, the power to decide questions according to law. It further observed that, although parties may agree to confer judicial powers on arbitrators and may require those arbitrators to decide a dispute according to law, such an agreement does not transform the arbitrators into a Court. The Court expressed the view that, before a person or persons can be said to constitute a Court, it must be established that they derive their authority from the State and that they are exercising the judicial powers of the State. Referring to the case of R. v. London County Council, the Court quoted the judgment of Saville, L. J., who defined the term “Court” or “judicial authority” as follows: “It is not necessary that it should be a Court in the sense that this Court is a Court: it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and that it is not necessary to be strictly a Court; if it is a tribunal which has to decide rightly after hearing evidence and opposition.” The Court then cited Lord Sankey, L. C., in Shell Co. of Australia v. Federal Commissioner of Taxation, noting that there exist tribunals possessing many of the trappings of a Court yet not being Courts in the strict sense of exercising judicial power. It was held that such tribunals, although not full-fledged Courts, do exercise quasi-judicial functions and therefore fall within the ambit of the word “tribunal” in Article 136 of the Constitution. The Court explained that a tribunal is not necessarily a Court in the strict sense merely because it renders a final decision, hears witnesses on oath, has two or more contending parties appear before it, issues decisions affecting the rights of subjects, permits an appeal to a Court, or receives matters referred by another body. Consequently, the Constitution’s use of the word “tribunal” in Article 136 appears intended to encompass tribunals that display many of the characteristics of a Court without strictly satisfying the definition of a Court. The Court then turned to various definitions of “judicial power” that have been formulated over time and identified the most authoritative definition as articulated by Griffith, C. J., in Huddart, Parker & Co. v. Moorehead. According to that definition, the words “judicial power” in section 71 of the Constitution signify the power which every sovereign authority must necessarily possess to decide controversies between its subjects, or between itself and its subjects, whether the rights involved relate to life, liberty or property, and that the exercise of this power does not commence until some.

It was noted that a tribunal which possesses the authority to render a decision that is binding and authoritative—whether that decision may be appealed or not—is required to act upon the matter before it. The Court accepted that a tribunal created under the Industrial Disputes Act of 1947 exercised powers that were described as quasi-judicial. The expression “quasi-judicial” signified that a portion of the State’s judicial power was vested in such a body and that the body was expected to exercise that portion. In an effort to clarify the meaning of the terms “judicial” and “quasi-judicial,” the Court referred to the decision in Cooper v. Wilson and quoted the passage there. The quoted passage explained that a genuine judicial decision presupposes an existing dispute between two or more parties and requires four elements: first, the presentation of each party’s case, which need not be oral; second, if the dispute involves a question of fact, the determination of that fact through evidence presented by the parties, often aided by argument; third, if the dispute involves a question of law, the submission of legal arguments by the parties; and fourth, a concluding decision that resolves the entire matter by finding the facts, applying the law to those facts, and, where necessary, ruling on any disputed question of law. By contrast, a quasi-judicial decision also presupposes a dispute and involves the first two elements, but it does not necessarily require the third element and never includes the fourth element. Instead, the function that would constitute the fourth element in a judicial decision is carried out by an administrative action whose character is determined by the free choice of the Minister. The Court indicated that the extent to which an Industrial Tribunal exercises judicial power would be examined later in light of these observations.

The Court then turned to references found in Professor Allen’s book on Law and Order (Chapter IV, page 69) and in Porter’s text on Administrative Law, 1929 edition (page 194), which discussed the various administrative tribunals operating in different countries today. It was acknowledged that a wide variety of administrative and domestic tribunals exist both in India and abroad. However, the essential question in each case was to determine the degree of State judicial power that such tribunals exercise. The Court emphasized that a tribunal that does not derive its authority from the sovereign power of the State cannot be brought within the scope of Article 136. The prerequisite for a tribunal to fall under Article 136 is that it must be created by the State. Moreover, a tribunal that performs only administrative or executive functions without being vested with any portion of the State’s judicial functions lies outside the ambit of Article 136. Conversely, tribunals that are endowed with certain judicial functions of a court and possess some of the trappings of a court would be considered to fall within the ambit of Article 136.

Article 136 indicated that the appellate jurisdiction of the Supreme Court could be invoked whenever it was deemed necessary for the ends of justice. In this regard the Court turned to examine whether a tribunal created under the Industrial Disputes Act of 1947 performed any of the functions traditionally assigned to a court of justice, and whether it exercised those functions in accordance with law rather than according to its own notions of right and wrong. The Act defines an “industrial dispute” in Section 2 clause (k) as any dispute or difference that exists between an employer and an employee, between an employer and a workman, or between workmen themselves, where the dispute is connected with employment, non-employment, the terms of employment or the conditions of labour of any person. Such a dispute directly concerns the rights of both employers and employees. Its resolution can alter the terms of a contract of service, modify conditions of employment, affect the monetary liability of an employer and even lead to the imposition of penalties on the employer. Likewise the outcome can have adverse consequences for the employees. The rights at stake are therefore valuable, and the result of the dispute is often expressible in monetary terms. Typically the core issue to be decided is the quantum that must be transferred from the employer’s pocket to the employee’s pocket, and the extent to which the principle of freedom of contract must be adjusted in order to secure industrial peace.

Section 7 of the same statute confers upon an Industrial Tribunal the authority to adjudicate such disputes and imposes upon it the duty to decide them in accordance with the provisions of the Act. The language of the Act, emphasized in italics, makes clear that the tribunal must resolve the dispute according to law and not by any other means. Consequently, the tribunal is required to apply the law, even though the legal framework it follows may differ from that applied by an ordinary court of justice. The Act further provides that the tribunal shall be composed of experienced judicial officers and defines an award as the determination of the dispute. The use of the term “adjudication” signifies that the tribunal is to function as a judge, sitting as a court of justice rather than acting as an administrator. Moreover, the tribunal is not endowed with any executive or administrative powers. Section 38 authorises the making of rules to give effect to the Act, including rules governing the powers and procedures of the tribunals, thereby ensuring that the tribunal operates within a defined legal structure.

The regulations made under the Act authorised the tribunal to manage the conduct of proceedings in a detailed manner. Rule 3 required that any application for referring an industrial dispute to a tribunal be filed in the prescribed Form A and be accompanied by a statement that set out, among other things, the names of the parties and the specific questions in dispute; this requirement was described as being similar to the filing of a plaint in a civil suit. Rule 13 gave the tribunal the power to administer oaths to persons who gave testimony. Under Rule 14 the tribunal was permitted to accept, admit or call for evidence at any stage of the proceeding, and to do so in whatever manner it considered appropriate. At the first sitting of the tribunal, Rule 17 mandated that the tribunal call upon the parties to present their case. Rule 19 made provision for ex-parte proceedings where one side might be absent. Rule 21 extended to the tribunal the powers that a civil court possessed under the Code of Civil Procedure when trying a suit in relation to discovery and inspection of documents, the granting of adjournments, and the taking of evidence on affidavit; it also authorised the tribunal to summon and examine, on its own initiative, any person whose testimony appeared material. Further, Rule 21 declared that the tribunal would be deemed a civil court within the meanings of sections 480 and 482 of the Code of Criminal Procedure, 1898. The same rule provided that parties appearing before the tribunal had the right to examine, cross-examine and re-examine witnesses and to address the tribunal after all evidence had been led. Rule 30 allowed a party to be represented by a legal practitioner, but only with the tribunal’s permission and subject to conditions that the tribunal might impose.

Section 11(3) reiterated that the tribunal possessed the same powers as a civil court under the Code of Civil Procedure for several specific matters: it could enforce the attendance of any person and examine that person on oath; it could compel the production of documents and other material objects; it could issue commissions for the examination of witnesses; and it could exercise any other powers that might be prescribed. Moreover, every inquiry or investigation undertaken by the tribunal was to be treated as a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. In view of these extensive powers, the Court found it difficult to imagine that the industrial tribunal performed any function other than a judicial one. The tribunal clearly satisfied the first three requisites of a judicial body and, to a considerable extent, the fourth, since it was not authorised to take any administrative action of its own choosing.

The Tribunal undertook administrative action, and the nature of that action was determined by the Tribunal’s own choice. It was required to render its adjudication in strict conformity with the provisions of the Act, specifically those set out in section 7. The members of the Tribunal were persons who were either qualified to be Judges or who had previously served as Judges. Its duty was to adjudicate serious disputes between employers and employees that affected the parties’ freedom of contract; in exercising this duty the Tribunal could impose monetary liabilities, and the Act made disobedience of any award issued by the Tribunal punishable. The scope of the powers that could be exercised by a tribunal of this character had been examined in the Federal Court of India decision in Western India Automobile Association v. Industrial Tribunal, Bombay, where it was observed that such a tribunal could do something no ordinary Court could do, namely, add to or alter the terms and conditions of a contract of service. Having been entrusted with the responsibility of resolving a dispute of a peculiar character, the Tribunal was consequently equipped with extraordinary powers. However, those powers were not discretionary; they derived entirely from the statute that created the Tribunal and were to be exercised according to the legal rules prescribed therein. The statutory powers carried the full sanction of law and could not be invoked on the basis of any personal discretion of the Tribunal members. The adjudication had to be based on evidence lawfully produced, and the parties were entitled to be heard and to be represented by legal practitioners. Each party was granted the right to examine and cross-examine witnesses, and after the evidence was closed the parties could address the Tribunal. The entire procedure laid down by the Act and its rules was modeled on the Code of Civil Procedure. In the Court’s view, therefore, the Industrial Tribunal possessed all the essential attributes of a court of justice. Its sole function was to adjudicate disputes, and although the nature of the disputes required the Tribunal to exercise powers broader than those of ordinary courts, such wider powers did not detract from the fact that the Tribunal was exercising judicial authority. Statutes such as the Relief of Indebtedness Act and the Encumbered Estates Act have granted courts powers that are not normally associated with the law and that affect contractual rights; similarly, these circumstances did not transform the Tribunal into anything other than a body exercising the State’s judicial power, albeit in a degree and manner different from that of ordinary courts. The Tribunal could appropriately be described as a quasi-judicial body because it operated outside the regular hierarchy of the judicial system, yet that fact did not prevent it from falling within the ambit of Article 136. Moreover, the Tribunal was deemed to be a Civil Court for certain purposes as provided in the applicable rules.

The Court referred to rule twenty-one of the rules that had been cited earlier and to section eleven sub-paragraph three of the Act as the statutory basis for its analysis. It observed that when a tribunal operates as a Civil Court and exercises any of the powers contemplated by that section, its decisions become subject to appeal before a District Judge. Consequently, the Supreme Court’s power under Article one hundred thirty-six would automatically be attracted in any case involving those matters. The Court then examined Chapter six of the Act, noting that section twenty-nine makes a breach of the terms of an award punishable. Accordingly, disobedience of an award’s terms is liable to penalty under the Act. Because of this, a determination of the tribunal not only affects freedom of contract and may impose monetary liability on the employer or grant monetary benefits to the employees, but it also involves serious consequences. Specifically, failure to observe the award subjects the erring party to the penalties laid down in Chapter six. An award that carries such severe legal and financial effects cannot be said to have been issued by a body that does not perform important judicial functions of the State.

The Court noted that considerable stress was placed by counsel on the provisions of section fifteen of the Act. Section fifteen enacts as follows: “(1) Where an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, as soon as practicable on the conclusion thereof, submit its award to the appropriate Government. (2) On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding. Provided that where the appropriate Government is a party to the dispute and in its opinion it would be inexpedient on public grounds to give effect to the whole or any part of the award, it shall on the first available opportunity lay the award together with the statement of its reasons for not making a declaration as aforesaid before the Legislative Assembly of the province, or where the appropriate Government is the Central Government, before the Central Legislature, and shall, as soon as may be, cause to be moved therein a resolution for the consideration of the award; and the Legislative Assembly or as the case may be, the Central Legislature, may by its resolution confirm, modify, or reject the award. (3) On the passing of a resolution under the proviso to sub-section (2), unless the award is rejected thereby, the appropriate Government shall by order in writing declare the award as confirmed or modified by the resolution, as the case may, to be binding. (4) Save as provided in the proviso to sub-section (3) of section 19, an award declared to be binding under this section shall not be called in question in any manner.” As to clause four, it was rightly conceded that a law dealing with industrial disputes and enacted in the year nineteen forty-seven could not in any way affect the constitutional provisions that had been laid down.

In this case, the Court considered the argument that the award issued by the Tribunal possessed no binding effect unless the appropriate Government issued a written declaration under clause (2) of section 15, and that, without such a declaration, the award was merely a lifeless document lacking any sanction and therefore could not be subject to appeal, even by way of special leave under Article 136 of the Constitution. The Court found this contention to be unsound. It observed that clause (2) of section 15 did not grant the Government any discretion to affirm, modify, or reject the award; the statute required the Government to declare the award binding, leaving the Government with no alternative. Consequently, the determination made by the Tribunal itself was the decisive factor, and without that determination the Government could not function. The Court emphasized that the Government did not have the power to adjudicate the dispute or to alter the award in any manner; such power rested exclusively with the Tribunal. The rights of the parties were therefore affected by the adjudication embodied in the award, not by the automatic declaration of the Government. Although the Government’s announcement gave the award the force of binding law, the Court held that this did not change the question of whether the Tribunal’s determination could be appealed under Article 136. To support this view, the Court referred to the language of the decision in Rex v. Electricity Commissioners. The relevant passage was quoted in full: “It is necessary, however, to deal with what I think was the main objection of the Attorney-General. Is 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. It is unnecessary to emphasize the constitutional importance of the contention. Given its full effect, it means that the checks and safeguards which have been imposed by Act of Parliament, including the freedom from compulsory taking, can be removed, and new and onerous and inconsistent obligations imposed without an Act of Parliament, and by simple resolution of both Houses of Parliament. I do not find it necessary to determine whether, on the proper construction of the statute, resolutions of the two Houses of Parliament could have the effect claimed. In the provisions that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament.” The Court concluded that, despite the procedural steps described in the quoted case, the Tribunal’s award itself remained the operative determination, and the Government’s declaration was merely automatic, leaving no discretion for the Government to alter the award and preserving the Tribunal’s adjudication as the basis for any appeal under Article 136.

The judgment held that there was no inconsistency with the view that the officials acted judicially and within the limits prescribed by the Act of Parliament, and that the courts possessed the authority to keep them within those limits. It was noted that the order of the Commissioner was the only instrument that ultimately took effect; neither the Minister of Transport, who merely confirmed the order, nor the Houses of Parliament, which approved it, could under the statute make an order that would operate on the matters in question. The judgment observed that there was no authority compelling a conclusion that a proceeding could not be a judicial proceeding subject to confirmation or approval, even where such approval had to be given by the Houses of Parliament, and that the authorities actually pointed in the opposite direction. The observations, although originally made in a case involving a writ of prohibition and certiorari, were deemed applicable to the present dispute. In the present context, the government retained no discretion in ordinary cases to modify or reject the tribunal’s determination. The requirement that the government issue a declaration after the tribunal’s final decision was not considered inconsistent with the view that the tribunal acted judicially. The statute itself provided a clue that the necessity for the award to be declared by a government order in order to be binding did not affect its applicability. Article 136, clause 2 expressly excluded the decisions of military courts and tribunals from the ambit of clause 1 of the same article, indicating that, but for the exclusion, those decisions would have fallen within the scope of clause 1. Various provisions of the Army Act made clear that decisions of military tribunals or courts were subject to confirmation by the Commander-in-Chief or other designated military authorities, and that such decisions could operate only after such confirmation. No authority had ever held that this requirement affected the question of their applicability. The case of Rex v. Minister of Health supported this view. Under the Housing Act 1925, section 40 required a local authority that had prepared an improvement scheme to present a petition to the Minister requesting an order confirming the scheme. Sub-section (3) allowed the Minister, after considering the petition, to order a local inquiry and to confirm the scheme with or without conditions or modifications. Sub-section (5) provided that the Minister’s order, once made, would have effect as if enacted by the Act. The Court of Appeal held that because the Minister’s order was made without compliance with the statutory conditions, it was ultra vires, and therefore a writ of certiorari should be issued to quash it.

Scrutton, L. J., had earlier placed reliance on the decision in Rex v. Electricity Commissioners, and the same principle was later affirmed in Minister of Health v. The King. The Court observed that a writ of prohibition or a writ of certiorari may be issued when the Minister of Health, in confirming an order, exceeds the authority granted by statute. Consequently, the mere fact that an order requires confirmation by a Minister or by the Government does not, in itself, bar the exercise of judicial review. The observations in Smith v. The Queen may also be cited; at page 623 it was noted that a universal rule of judicial proceedings is that the party against whom a judgment is to operate must be given an opportunity to be heard. In that light, the proceedings before an industrial tribunal must be regarded as judicial in nature. Accordingly, the argument advanced by counsel for the petitioner, namely that this Court could not invoke the powers conferred by Article 136 because the tribunal’s decision would remain ineffective until a declaration by the Government, cannot be sustained. With respect to section 19, it was contended that an award declared binding by the appropriate Government under section 15 would only become operative on a date specified by that Government and could remain in force for a period not exceeding one year, also to be fixed by the Government. The contention further asserted that the Government possessed the authority to determine the commencement date and the duration for which the award would be effective. The Court, however, held that section 19 does not affect the question of whether the tribunal’s determination is appealable. The Government retains distinct functions to perform in its own sphere after an award is made, and in some cases the Government itself may be a party to the dispute. The Government possesses overriding powers, such that if it deems an award contrary to the public interest, it may refer the matter to the legislature. The legislature, in turn, has the power to modify, accept, or reject the award. These overriding powers presume the existence of a valid tribunal determination. If that determination is made beyond the tribunal’s jurisdiction or contravenes the principles of natural justice, and is set aside by exercise of the Court’s powers under Article 136, there is no occasion for the Government to exercise its powers under the Act. Conversely, when a valid award exists, it cannot be denied that the Government may exercise its powers as it deems appropriate, and such exercise lies outside the jurisdiction of this Court. In support of this reasoning, reference was made to Moses v. Parker, where the emphasized passage stated: “The Court has been substituted for the commissioners to report to”.

The Court observed that the report of the judges was to be binding on the governor, and that this binding effect was perhaps attributed to the judges’ status and training, which were thought to make them the most suitable custodians of such power. Nevertheless, the Court said that this does not convert the judges’ act into a judicial act that can be examined or altered by an appeal, just as the actions of the commissioners and the governor were not judicial. The Court explained that it, like the commissioners, was to be guided by equity, good conscience and the best evidence, and that every public officer ought to follow the same principles. Yet, the Court noted, those officers were expressly freed from all rules of law, equity and legal formalities. In view of that exemption, the Court questioned how the correctness of their decisions could be tested on appeal and what standards the Board should use when advising Her Majesty on whether the Supreme Court was right or wrong. The Court found it almost impossible for decisions to be altered without reference to some rule, while the body making the decisions was itself free from any rule. If appeals were permitted, the Court said, a system of rules would inevitably be created, defeating the intention of the Tesmanian Legislature, which wanted the Supreme Court to remain free and unfettered in each case. The Court added that even if it were clear that appeals should be allowed, the difficulties would eventually be resolved, but strong arguments existed showing that the matter was not of sufficient importance to warrant such a change.

The Court further noted that one might have expected, after the earlier opinion, that the Judicial Committee would be found to lack jurisdiction to hear the appeal. Instead, the Lords based their decision not on jurisdiction but on the view that the case was unsuitable for the exercise of the King’s prerogative. The Court expressed the view that the observations made in that earlier case did not appropriately apply to the statutory provisions under consideration. The Court stated that there was no difficulty in this case in examining the propriety of the tribunal’s determination. It clarified that the Court was not to replace the tribunal’s decision when granting relief under Article 136. The Court intervened only when the tribunal had exceeded its jurisdiction, addressed the questions referred to it in a way likely to cause injustice, or followed a procedure contrary to the well-established rules of natural justice. In other words, if the tribunal had denied a hearing, refused to record evidence, or acted arbitrarily or despotically, the Court would not transform itself into a tribunal to settle the dispute. Rather, when entertaining an appeal, the Court’s function would be limited to setting aside the award and directing the tribunal to proceed within its statutory powers and in accordance with the principles of natural justice.

In this matter, the Court emphasized that it must act within the authority granted to it and must conduct the resolution of the dispute in accordance with the principles of natural justice. It clarified that, under article 136, the Court was not to reduce itself to a mere court of error; rather, the extraordinary powers conferred by that article were to be exercised only in rare and exceptional cases and on well-known principles. Applying those principles, the Court found no insurmountable difficulty in the present case, which fell within the category described in the earlier passage. Although it was conceded that the High Court could invoke the powers of section 226 and could set aside an award, it was argued that article 136 should not be employed to interfere in an appeal. The Court saw no reason why, after the High Court had rendered a decision on an application made under section 226, that decision could not be brought before this Court on appeal. In industrial disputes, where speed is essential, any misuse of power by tribunals must be corrected promptly and with urgency. The Court noted that it is not a new practice for a court empowered to grant special leave to exercise its powers even when intermediate appeals or other remedies exist, provided the situation is extraordinary. Reference was made to Bentwick’s Privy Council Practice, third edition, page 125, which records that in several Jamaican cases the Privy Council granted leave to appeal directly to the Queen in Council from the Supreme Court, bypassing an intermediate appeal that would have caused considerable expense and delay, because each case presented a point of law worthy of discussion. The cited cases were In re Barnett, Harrison v. Scott, and Attorney-General of Jamaica v. Manderson. The language of article 136 itself supports this approach, as the article empowers the Court to grant special leave against sentences or orders made by this Court. Unlike other constitutional provisions that allow appeal only from final decisions of the highest appellate court, article 136 permits a petition to this Court to bypass the normal procedure when it is deemed necessary. Consequently, the Court held that the mere availability of a remedy resembling a writ of certiorari for the petitioners does not automatically limit the Court’s power under article 136. Whenever some form of judicial review is permissible, the highest court in the land may exercise its special powers and, if required, circumvent ordinary procedure by granting special leave, thereby deciding the matter at an earlier stage. The Court then proceeded to examine the cases referred to by counsel.

Mr. Alladi referred to three decisions from Australia that dealt with the interpretation 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 power of removal specified in that section, be appointed for life. Section 71 vests the entire judicial power of the Commonwealth in the courts mentioned in that provision and bars any other tribunal or body from exercising that power. Accordingly, every court listed in section 71 must be constituted in accordance with the requirements of section 72. The Australian cases considered the meaning of the expression “judicial power of the Commonwealth”. That exact expression does not appear anywhere in the Constitution of India, and consequently the Australian decisions do not offer a ready guide for resolving the issue that is before this Court. The Indian Constitution was not modeled on the Australian Constitution; therefore observations made in decisions interpreting the Australian document cannot be regarded as a reliable compass for interpreting the language of a Constitution that was drafted in a different manner.

The first Australian case cited was Waterside Worker's Federation of Australia v. J. W. Alexander Ltd. In that case the Court held that the authority granted by the Commonwealth Conciliation and Arbitration Act, 1904-1915, to the Commonwealth Court of Conciliation and Arbitration to enforce the awards it made forms part of “the judicial power of the Commonwealth” as meant by section 71, and that such power may be exercised only by the courts specified in that section. Mr. Alladi relied on a passage from the judgment of Justices Isaacs and Rich, page 467, which reads: “The arbitral part of the Act, therefore, is quite within the power of pl. xxxv., and it not intended by the Act to be exercised by an ordinary Court of Justice, which, it is suggested, Parliament by some strange perversity proceeded to destroy at birth. It is true that enforcement provisions are found......... But all this was in imitation of the State Acts of Arbitration, and not in reliance on the Judicature Chapter of the Federal Constitution. The arbitral portion of the Act is, in our opinion, perfectly good, subject to its severability from any other portion which may be bad.”

It was argued that the Industrial Tribunal created under the Indian Act performed an arbitration function comparable to the Australian body and therefore should be treated in the same way. The Court observed, however, that the language of section 15 of the Indian Act differs markedly from the language used in the Australian legislation. The Indian statute establishes distinct bodies for distinct purposes, and the Industrial Tribunal is constituted solely to perform an adjudicatory function. It is not described as an arbitral tribunal, and the statute deliberately avoids using the term “arbitration” either in its preamble or in any of its operative provisions. Because of these substantive and terminological differences, the Court found it unsafe to draw any guidance from the Australian decisions for the matter before it.

In the preceding discussion the Court observed that the determination had been described as an award, yet none of the relevant provisions of the Act used the term award. Consequently, the Court considered it unsafe to rely on any guidance derived from the observations made in that earlier case. The next authority cited by the Court was the Australian decision of Rola Co. (Australia) Proprietary, Ltd. v. The Commonwealth. The central issue in that case was whether the Women’s Employment Board, which had been created under the Women’s Employment Act, 1942, exercised the judicial power of the Commonwealth. The Court in Rola Co. held that the Board performed functions of an arbitral nature. The judgment placed particular emphasis on a passage found on page 198 of the report, which was quoted in full as follows: “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 referred to a frequently cited passage of Chief Justice Griffith in Huddart Parker & Co. Pty., Ltd. v. Moorehead, which had been approved by the Privy Council in Shell Co. of Australia, Ltd. v. Federal Commissioner of Taxation. The quoted passage read: “I am of opinion that the words ‘judicial power’ as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide 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 Court then noted that Regulation 5C confers on Committees the authority to decide controversies between persons concerning their rights, and that the regulation is intended to make those decisions binding and authoritative. The Court expressed dissatisfaction with the interpretation that Chief Justice Griffith’s words necessarily equate the power to make binding and authoritative factual determinations with judicial power. Attention was drawn to the concluding words of Griffith’s statement – “is called upon to take action.” The Court held that, in its view, those words refer to the action to be taken by a tribunal that possesses the power to render a binding and authoritative decision, not merely to the act of delivering the decision itself. The Court explained that a body which can issue a binding and authoritative decision possesses the attribute of judicial power only if it is also capable of taking action to enforce that decision. Accordingly, the Court indicated that a more detailed discussion would follow, referencing the Privy Council’s explicit holding in the Shell case, wherein the definition of judicial power was affirmed.

In this passage the Court observed that a Tribunal was not automatically a Court merely because it rendered decisions, even final decisions, between opposing parties that impacted their rights. The Court then referred to Huddart Parker’s case, where Justice Isaacs cited the statement of Palles, C. B., in R. v. Local Government Board for Ireland, noting that to transform a Tribunal into a “Court” or to give its determinations a judicial character, the essential requirement was that the body possessed, by virtue of its determination within its jurisdiction, the power to impose liability or to affect a legal right. The learned Chief Baron explained that the liability or right must be affected by the determination itself, not merely by the underlying fact that was decided, so that the liability would exist or the right would be affected even if the determination were later found to be erroneous in law or fact. By contrast, a power that was merely ministerial depended on a contingency; although an officer might need to ascertain whether the contingency had occurred in order to know whether to exercise the power, his determination would not bind the parties. The occurrence of the contingency could be challenged in a subsequent suit questioning the legality of the act performed under the alleged exercise of the power. However, where a determination bound the parties despite being based on a mistaken view of fact or law, the power authorizing that determination was characterised as judicial. The Court highlighted that this reasoning reflected a modern usage of the term “judicial power.”

The Court further explained that the characteristics of judicial power described by Justice Isaacs corresponded to what Isaacs and Justice Rich, in Waterside Worker's Federation of Australia v. Gilchrist, Watt & Sanderson, Ltd., identified as the creation of immediate liability in specific persons, as opposed to merely establishing a future rule or standard of conduct. The Court illustrated that when an ordinary Court orders B to pay money to A, it applies an existing standard of rights and duties that the Court did not itself create, resulting in an instantly enforceable liability of B to pay the specified sum to A. By contrast, the decision of the Women’s Employment Board does not generate such a liability, nor does a determination of a Committee of Reference create an immediate obligation, for example, to pay wages to a particular female employee. In such cases, the female or a representative would need to institute a suit in a competent Court; if that suit succeeded, the Court’s judgment would then create the liability. In that proceeding, the Committee’s determination would serve only as evidence of the facts it addressed, without itself creating liability. The Court pointed out that the concluding words of the quoted passage distinguished the present case from the Australian authority because an award granted by an Industrial Tribunal concerning bonuses, higher wages, or similar matters is enforceable by the Tribunal’s own authority and by the coercive mechanisms provided in the governing Act, rather than merely constituting a declaratory finding that would require a separate court action to enforce.

It was explained that a declaration of a character does not itself give an employee a cause of action to sue for wages. A decision of an arbitral tribunal cannot be enforced unless it carries the sanction of a court of justice, yet the tribunal’s award is enforceable directly under the Act because the statute provides coercive machinery for that purpose. The enforceable elements are the terms laid down in the award, not the terms of any order issued by the Government. Consequently, a breach of the award’s terms is punishable, whereas a breach of the Government’s order is not an offence. The Government is obligated to declare the award binding and has no discretion to refuse; this duty arises from the law that empowers the tribunal to determine the parties’ existing rights and liabilities and, where authorized, to prescribe rules of future conduct. The tribunal’s decision therefore carries the sanction of law, and the Government must give effect to it, the statute supplying the necessary coercive force. In view of these principles, the earlier decision cited was held to have no relevance to the matter before the Court. The judgment then referred to the third case mentioned, Shell Co. of Australia v. Federal Commissioner of Taxation, an income-tax matter already considered earlier. It also cited Mohammad Ahmed v. Governor-General in Council, where it was 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, a point having no bearing on the present issue. A similar observation was noted in Hari v. Secretary of State for India, and the Canadian case Labour Relations Board v. John East Iron Works Ltd was mentioned as following the same line of reasoning as the Australian decisions.

Counsel for the respondents placed reliance on O’Connor v. Waldron, referring to a passage on page 81. The passage explained that the privilege originally aimed to protect judges sitting in recognised courts of justice, ensuring that they could perform their duties without fear of being held personally accountable for words spoken in their judicial capacity. Over time, this privilege has been extended to tribunals that perform functions equivalent to those of an established court of justice. The Court noted that Lord Esher, in Royal Aquarium, etc., Ltd. v. Parkinson, accurately described the law by stating that the privilege “applies wherever there is an authorised inquiry which, though not before a Court of Justice, is before a Tribunal which has similar attributes.” The Court further observed that this doctrine has never been extended beyond courts of justice and tribunals acting in a manner comparable to such courts. Accordingly, the reliance on O’Connor v. Waldron was evaluated within this doctrinal framework.

In the discussion, the learned counsel argued that the term “Tribunal” in Article 136 could refer only to tribunals whose functions were equivalent to those of a Court of Justice. The Court held without hesitation that the Industrial Tribunal possessed attributes similar to a Court of Justice, pointing to various statutory provisions already cited. Reference was also made to passages on pages 422 and 428 of Toronto Corporation v. York Corporation, a decision concerning the Municipal Board of Ontario, where the Board was described as merely an administrative Tribunal. Further reliance was placed upon R. v. National Arbitration Tribunal, Ex parte Horatio Crowther & Co., Ltd., which dealt with the powers of the National Arbitration Tribunal; the Court found that citation offered little assistance. Counsel Alladi then suggested that the word “Tribunal” had been inserted in the article to cover bodies such as the Board of Revenue. The Court rejected that suggestion, observing that a Revenue Board possessed all the attributes of a Court of Justice and fell within the definition of “Court” when it adjudicated rights of parties. The Court noted that the term “Tribunal” had been employed in numerous statutes before the Constitution and concluded that the framers could not have intended a restrictive meaning limited only to bodies not described as Courts but performing analogous functions. Consequently, the Court opined that the word “Tribunal” in Article 136 must be construed liberally, and that an industrial tribunal, insofar as it performs judicial functions in accordance with law, fell within the ambit of the article, making an application for special leave competent.

The next issue for determination was whether the Court could justifiably exercise its overriding powers in the present case. The Court reiterated that exceptional and extraordinary powers of this character could be invoked only where a grave miscarriage of justice had occurred or where the tribunal’s procedure offended the fundamental notions of legal process. Counsel for the petitioner-bank, Dr. Bakshi Tek Chand, advanced four grounds to justify the exercise of the Court’s special jurisdiction. The first ground contended that the Tribunal had interpreted the word “victimisation” in the reference clause in a manner that allowed it to usurp jurisdiction over disputes that had never been referred to it. The Court held that this argument did not warrant the invocation of powers under Article 136, emphasizing that the Court was not a mere court of error. The Court further observed that the term “victimisation” had not been defined in the statute and was merely an ordinary English word indicating that a person had been unjustly dealt with. Although it had been argued that the term acquired a special meaning in industrial disputes, the Court found that the Tribunal’s determination was not materially affected by this interpretation, and therefore the special power was unnecessary. The second ground raised by the petitioner-bank asserted that the Tribunal had erred in ordering reinstatement of persons guilty of an illegal strike, alleging a mis-construction of section 23(b) of the Act. The Court The word

The term “victimization” was observed not to be defined in the relevant statute and was described as not being a technical legal expression or a term of art. It was characterized as an ordinary English word signifying that a particular individual has become a victim, that is, that the individual has been dealt with unjustly. Counsel for the petitioner argued that within the context of industrial disputes the word had acquired a specialised meaning, referring specifically to a person who suffers the employer’s wrath because of his trade-union activities, and that it could not be applied to a person who was merely dismissed without cause. The Court noted that, irrespective of the argument advanced, the Tribunal’s determination was not materially influenced by any particular interpretation of the word. Consequently, the Court held that the interpretation of “victimization” did not give rise to circumstances warranting the exercise of the extraordinary powers under Article 136, because the issue did not affect the substantive outcome of the Tribunal’s award to a degree that would justify such intervention.

The second ground raised concerned the Tribunal’s order to reinstate persons who had participated in an illegal strike. Counsel contended that Section 23(b) of the governing Act had been misconstrued, resulting in the reinstatement of individuals who, having committed a wrongful act, could not lawfully be restored to their positions. The argument explained that under Section 23(b), when a dispute concerning an earlier strike is referred to a Tribunal, any subsequent strike occurring during the pendency of that reference is deemed illegal. In the present case, the bank’s employees had struck in December 1948; that dispute was referred to an industrial Tribunal, and during the pendency of that reference a further strike took place, leading to the dismissal of those employees. The Calcutta High Court had held that a strike during the truce period and while an earlier dispute is pending is illegal even if it stems from fresh demands not covered by the original dispute. One member of the Tribunal believed the legal principle was correctly applied, while the other thought it erroneous; however, both agreed that the legality of the strike did not affect the issue to be decided under Issue 18 of the reference. The Act sets out penalties for an illegal strike but does not expressly prohibit reinstatement of persons guilty of such a strike. The reference to the Tribunal had been made by the Government concerning an illegal strike, and the Tribunal was therefore bound to adjudicate the matter. Item 18 of Schedule 2 expressly empowers the Tribunal to consider cases of victimisation arising from a third strike, described by the petitioner as illegal. Whether the Tribunal’s view was right or wrong was deemed, by the Court, not to be a question of sufficient gravity to warrant the grant of special leave under Article 136.

The Court observed that, irrespective of whether the tribunal members were right or wrong in the view they had taken, the issue did not possess the extraordinary importance required to warrant the grant of special leave under Article 136. The next question raised by counsel concerned the allegation that the tribunal’s award had been rendered without any supporting evidence. The Court noted that this contention merited careful examination.

Upon review of the tribunal record, the Court found that the proceeding complied only with the minimal requirement of Rule 17, which obliges the tribunal at its first sitting to invite the parties to state their cases. The employee representative, Mr Parwana, presented the employees’ position, and the bank’s representative, Mr Ved Vyas, articulated the bank’s case. After the statements were made, the tribunal terminated the hearing, allowed both sides to address arguments, and then issued its award. The Court explained that proof of victimisation in each individual case required evidence establishing certain factual elements, and that the burden of proof rested on the employees. No evidence was adduced on the employees’ behalf; the statement of case by Mr Parwana was not sworn, there was no examination or cross-examination, and no affidavit supporting his facts was filed by him or any employee. Although Mr Parwana produced an abstract of correspondence, the original documents were not produced. The bank contested Mr Parwana’s facts through a detailed affidavit, yet the tribunal never referred to that affidavit, nor was any counter-affidavit filed. The bank sought to introduce further evidence, specifically a letter allegedly issued by an employee named Bhattacharya that purportedly damaged the bank’s reputation, but the opportunity to present this evidence was denied. The Court found no record substantiating the bank’s claim that it was prevented from leading evidence. Consequently, the Court concluded that the factual basis for the victimisation allegations was unsupported by any affidavit or other evidence, rendering the tribunal’s award devoid of evidentiary foundation. The applicable Act and its procedural rules require a proper hearing, discovery, document inspection, and production of evidence, none of which were observed. The Court could not identify any material upon which the tribunal relied, and the counsel for the respondents was unable to point to any such material. At one stage, the Court considered whether the parties had mutually consented to treat the statements of case as evidence, but found no indication that such an agreement existed.

In this case, the affidavit filed on behalf of the bank directly contradicted every fact advanced by Mr Parwana. The only document placed before the tribunal was that affidavit, and if its contents are accepted, the tribunal’s determination cannot be sustained. Consequently, the procedure followed by the tribunal violated the fundamental principles of natural justice, rendering the award void. When the law does not provide a right of appeal, there is a risk that a decision-making body may act arbitrarily, assuming a benevolent-despotic role. Such a role is incompatible with a democratic Constitution. The tribunal members appeared to believe that after hearing each party’s statement of case they could render a judgment based solely on their personal view of right or wrong, without any supporting material. This approach is not authorised by the statute and is foreign to democratic governance. Under these circumstances, the Court considered it an imperative duty to invoke its extraordinary powers to set aside the award.

The final argument presented by Bakshi Tek Chand concerned the fact that, although a three-member tribunal had been appointed to decide the dispute, only two members signed the award. Section 16 of the Act mandates that an award must be in writing and signed by all members of the tribunal, while allowing any member to record a minute of dissent. The provision is mandatory and was not complied with in this instance. It is undisputed that the parties’ case was oral-ly presented at a sitting attended by all three members, and that all arguments were heard by the full panel. No further sitting occurred that would have required a quorum of two members to continue the proceedings. Since the matter was fully heard by all three members, the award should have been executed by all of them. Therefore, an award signed by only two members does not constitute the award of the tribunal constituted by the Government and is consequently vitiated and must be set aside. In support of this conclusion, reference was made to Section 8 of the Act, which provides that if the services of the Chairman or any other member of a Board, Court or Tribunal cease, the appropriate Government shall appoint another independent person to fill the vacancy, and the proceedings shall continue before the reconstituted body.

The Court observed that the tribunal had never been reconstituted by the Government through any formal notification. According to section 7 of the Act, the Government was required to constitute a tribunal in the manner prescribed by the statute, and it had initially created a tribunal consisting of three members. Under section 8, the Government possessed the authority to reconstitute the tribunal when a vacancy arose, but the Government did not exercise that authority. Consequently, the tribunal that had originally been constituted was not the same tribunal that issued the award in the present reference, because only two members participated in delivering that award. Respondents contended that one of the members had become unavailable and that the Government was not obligated to fill the vacancy. The record contained no evidence establishing that any member had actually become unavailable, nor did it indicate the timing of such a purported unavailability. Even assuming that a member had become unavailable and the Government chose not to fill the vacancy, the statute required the Government 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. The affidavit disclosed that Mr Chandrasekhara Aiyar, who was one of the original members, had been appointed in November 1949 to the Boundary Commission in Bengal, and that the other two members had sent a telegram to the Labour Ministry requesting either that the vacancy be filled or that the tribunal be reconstituted. The Ministry’s advice was that the members could continue to proceed as they were and that the Government would, if necessary, fill the vacancy at a later stage. The Court noted that it was not concerned with whether the Ministry’s advice was correct or not; what mattered was the factual finding that the tribunal had never been formally reconstituted. Moreover, it was undisputed that Mr Chandrasekhara Aiyar continued to sit on the same tribunal without being re-nominated, and that the tribunal was still hearing the same reference on other issues. The Court therefore concluded that the procedural requirements of the statute had not been satisfied.

The Court further explained that it was difficult to understand why, after the tribunal had heard the reference, a member could not sign the award even if he was physically present in Calcutta at the time. The notion that three persons hear a case while only two of them render the decision was described as repugnant to every concept of fairness. The Court reasoned that the opinion of the third member could have influenced the other two, or that the final decision might have been different had all three participated fully. In the present case, the two members had differed on an important question of law but eventually reconciled their views and issued a unanimous award. The Court emphasized that the presence of the third member could have vitally affected the outcome. After careful consideration, the Court held that it would be dangerously inappropriate to condone proceedings of this character. The Court warned that if exceptional powers were not exercised when a body that is legally constituted under the statute fails to operate in accordance with the statutory requirements, the very purpose of the Constitution would be undermined.

The Court referred to the decision of the Privy Council in the case of Fakira v. King-Emperor. In that case the provision of section 377 of the Code of Criminal Procedure, as amended for the jurisdiction of Hyderabad, provided as follows: “In every case so submitted, the confirmation of the sentence or order passed by the Court of the Resident at Hyderabad shall, when such court consists of two or more Judges, be made, passed and signed by at least two of them.” In Fakira’s case the confirmation order was made, passed and signed by only one judge, although the Court of the Resident was composed of two judges. The Privy Council held that the mandatory requirements of section 377 had not been satisfied and therefore the sentence had not been validly confirmed. Consequently the appeal was allowed and the matter was remitted to the Court of the Resident for proper compliance. The Court noted that the provisions of section 18 of the Industrial Disputes Act are similarly mandatory. A further illustration was drawn from a decision under the Bar Councils Act reported in In re: an Advocate, Madras, where a tribunal member had died and his signature was missing from the report. The Court in that matter held that the tribunal was no longer properly constituted and that its report could not be considered. On the basis of these authorities, the Court concluded that the award in the present case must be set aside. The Court directed that the tribunal, which remains functional, should reconsider item 18 of the reference and then forward its award on that point to the Government. The employees could not be held liable for the procedural method adopted by the two members of the tribunal, and each party was ordered to bear its own costs. The appeal was allowed in the manner indicated. The appeal before the Court, entered on special leave, challenged an award dated 19 January 1950 made by the All-India Industrial Tribunal. That tribunal had been constituted by the Central Government under section 7 of the Industrial Disputes Act to adjudicate a large number of disputes between several banking companies and their employees. Among the banking companies was Bharat Bank Limited, the appellant, and the disputes involved the appellant and its employees, who were respondents. The matters referred to the tribunal principally concerned alleged retrenchments and victimisation of employees by the bank. The tribunal conducted its inquiry in Delhi concerning cases relating to the Delhi branch of the appellant and, on 19 January 1950, issued an award finding that twenty-six employees had been improperly dismissed and should be reinstated. The award also prescribed the salaries and allowances to be paid to the reinstated employees and declared the award to be binding pursuant to the provisions of the Industrial Disputes Act.

The award that had been made under sections fifteen and nineteen of the Industrial Disputes Act was confirmed by the Central Government on the thirtieth day of January, 1950, and the Government ordered that the award should remain effective for a period of one year. The present appeal was filed against that award. On behalf of the Indian Union, which had intervened in the proceedings, and also on behalf of the respondents, a preliminary objection was raised challenging the jurisdiction of the Court to entertain the appeal. The argument advanced by the counsel for the intervener, Sir Alladi Krishnaswami Aiyar, was that article one hundred and thirty-six of the Constitution, under which the appellants had obtained a special leave to appeal, did not contemplate an appeal from an award of an industrial tribunal because such a tribunal was not vested with judicial powers and therefore its decision could not be described as a judicial determination. It was further asserted that the industrial tribunal functioned as an administrative body that performed quasi-judicial functions, and that the Court could not be called upon to act as an appellate court in respect of the decision of a body that was essentially part of the executive machinery of the Government. In response to this objection, counsel for the appellants contended, through the submissions of Bakshi Sir Tek Chand, that the tribunal created by the Industrial Disputes Act was, in substance, a court or judicial tribunal endowed with the authority to exercise judicial functions. He further argued that the language of article one hundred and thirty-six was sufficiently broad to permit an appeal from the award or determination of any tribunal, irrespective of whether the tribunal was strictly judicial or not.

The Court identified two principal issues that needed to be considered at the preliminary stage. The first issue was whether the award or decision of an industrial tribunal constituted a judicial decision in the proper sense of that expression, or whether it was the pronouncement of an administrative or quasi-judicial body that, although capable of exercising some of the powers of a court of law, could not be regarded as a true court. The second issue involved the construction of article one hundred and thirty-six, specifically the meaning to be given to the words “tribunal” and “determination” appearing in that article, and whether the provision was intended to be wide enough to include an adjudication or award issued by an industrial tribunal. In addressing the first question, the Court observed that the modern State, with its intricate and complex system of government, has witnessed a vast expansion of social legislation in England, other foreign jurisdictions and in India over the past several decades. As a result, administrative and quasi-judicial tribunals have become a permanent feature of the social and political landscape. These tribunals now function as bodies that adjudicate disputes relating to a wide array of economic and social matters. In a sense they are

In this discussion, the Court observed that governmental bodies belonging to the executive branch, and not to the judicial branch of the State, were nevertheless equipped in many matters with judicial powers that resembled those normally exercised by courts of law. The Court then posed the question of whether any tests or distinguishing features existed that could separate an administrative tribunal from a court of law. It noted that once such tests were formulated, it would be possible to decide whether a tribunal created under the Industrial Disputes Act should be regarded as a proper judicial tribunal. The Court further remarked that determining whether a particular function or activity is judicial in nature is often a difficult problem. It referred to the extensive analysis given by Lord Sankey in the Privy Council judgment in Shell Co. of Australia v. Federal Commissioner of Taxation. In that case, the issue was whether the Board of Review, established in 1925 under the Commonwealth Income Tax legislation, was a court exercising judicial power or an administrative tribunal. A majority of the Board held that it was an administrative, not a judicial, tribunal, and this view was reaffirmed later in the judgment, which stated 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 explained that the final decision in that case rested on the ground that the Board of Review could not be a judicial tribunal because its orders were not conclusive for any purpose. It added that the decision seemed to have only negative value. The Lord Chancellor, in that judgment, listed a series of negative propositions, indicating that a tribunal is not automatically a court simply because two or more opposing parties appear before it, because it hears witnesses, or because it issues a final decision affecting the rights of the parties. The Court noted that the Privy Council did not formulate a positive test, although it quoted with approval observations of Griffith, C.J., made in another Australian case, Huddart Parker and Co. v. Moorehead, which somewhat neutralised the effect of those negative tests. The observations of Griffith, C.J., were recorded as follows: “I am of opinion that the words ‘judicial power’… mean the power which every sovereign authority must have by 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.” Finally, the Court stated that the authority to hear and decide on evidence between a proposal and an opposition, although one of the most essential elements of judicial power, may also be present in an administrative tribunal.

Administrative tribunals may also possess powers that are traditionally associated with the exercise of judicial authority. In most instances, such tribunals are empowered to summon witnesses, administer oaths, and penalise individuals who refuse to obey their orders, all for the purpose of conducting inquiries. This circumstance was illustrated in the case of W. F. OʼConner v. Waldron. It is now common to observe that procedural features once confined exclusively to courts of law are being extended to committees, commissions, and boards that carry out investigations under the direction or supervision of the Government. Consequently, the mere presence or absence of these procedural attributes does not provide a decisive test for deciding whether a particular body should be classified as a judicial institution.

In the remarks of Griffith, C.J., cited earlier, the chief justice emphasised that the power to render a binding and authoritative decision is the essential characteristic of judicial power. Later Australian cases, notably Rola Co. (Australia) Pty. Limited v. The Commonwealth, examined the precise meaning of this statement. The majority of judges held that the existence of a power to decide disputed questions of fact and to make a determination that binds the parties is not alone sufficient to show that judicial power has been conferred on an authority. They explained that a determination may be binding in the same way a contract binds its parties, but for judicial power to be present, the decision must, by its own force and without reliance on any other authority, affect the rights and obligations of the parties. In other words, the decision itself, irrespective of the factual findings, must create rights, impose obligations, and be enforceable under the ordinary law of the land. This requirement constitutes a fundamental test distinguishing a true judicial body from one that performs merely administrative or quasi-judicial functions. At times, the decision or report of an administrative tribunal only becomes effective after it is accepted by the head of the department under which the tribunal operated, after which it is enforced through an administrative process. Alternatively, the decision may generate rights between the parties that must be vindicated in an ordinary court of law, where relief is obtained only through a judgment or decree. The essence of a judicial determination is that, once rendered, the only remaining step is the enforcement of the judgment, a step that the law of the land automatically compels.

In describing the distinction between judicial and quasi-judicial bodies, the Court explained that a judicial authority must follow the law in reaching its decision. Both types of tribunals may examine facts on the basis of evidence presented by the parties, but the essential difference lay in the way law was applied. In a judicial proceeding, the judge was required to apply to the facts found the fixed and uniform law of the land. By contrast, a quasi-judicial tribunal rendered its decision on the basis of principles, administrative policy, convenience, or what appeared just and proper in the particular circumstances, rather than according to fixed legal rules. Consequently, the process used by an administrative tribunal was not regarded as a “judicial process” (see Robson’s Justice and Administrative Law, p. 74). The Court further referred to Sir Maurice Gwyer’s testimony before the Committee on Minister’s Powers appointed by the English Parliament in 1929, where Gwyer drew a clear line between judicial and quasi-judicial powers. He defined “judicial power” as the authority to decide a question of legal right in a dispute, involving either a finding of fact, the application of a fixed rule or principle of law, or both. He defined “quasi-judicial power” as the authority to make decisions on administrative differences that were not justiciable, which could not be resolved by reference to any fixed law or principle but required administrative discretion and judgment (see Committee of Minister’s Powers, Minutes of Evidence, Vol. II, pp. 15-16; also Robson’s Justice and Administrative Law, p. 319). The Court then cited the decision in Cooper v. Wilson, wherein Justice Scott quoted and adopted a passage from the committee’s report. That passage stated that a true judicial decision presupposed an existing dispute between two or more parties and involved four requisites: (1) the presentation of each party’s case, not necessarily orally; (2) if the dispute involved a question of fact, the ascertainment of that fact through evidence adduced by the parties, often with argumentative assistance; (3) if the dispute involved a question of law, the submission of legal argument by the parties, frequently assisted by findings on the facts and the application of the law of the land to those facts, including a ruling on any disputed question of law. The Court noted that a quasi-judicial decision likewise presupposed an existing dispute, but it differed in that the decisive element was an administrative action whose character was determined by the Minister’s free choice.

In the judgment the Court explained that the statements regarding “free choice” accurately express the essential distinction between a judicial tribunal and an administrative body that performs quasi-judicial functions. These characteristics are central to separating the two classes of tribunals. Consequently, the Court determined that, with reference to the provisions of the Industrial Disputes Act, it was necessary to identify the precise class or category under which an Industrial Tribunal falls.

The preamble of the Industrial Disputes Act declares that its purpose is “to make provisions for investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing.” The term “settlement” conveys the idea of reaching a compromise between the interests of the parties in dispute. The Act provides for three distinct categories of authorities entrusted with the powers and duties of investigating and settling industrial disputes. First, there are conciliation officers attached to Boards of Conciliation whose principal role is to induce the parties to arrive at a fair and amicable settlement among themselves. Second, the Act creates Courts of Enquiry; although labelled as courts, their function is limited to investigating matters referred to them and submitting reports to the appropriate Government. Third, the Act establishes Industrial Tribunals composed of independent individuals who are or have been High Court Judges, District Judges, or persons qualified to be appointed as High Court Judges.

From the description above it follows that Boards of Conciliation and Courts of Enquiry cannot be regarded as judicial tribunals. Nevertheless, to enable them to investigate facts, the Act empowers these bodies, under section 11, to compel the attendance of witnesses, to require the production of documents, and to exercise other similar powers. Importantly, the same powers are conferred on all three categories of authorities without any distinction. Section 11(3) further provides that any enquiry or investigation conducted by a Board, a Court of Enquiry, or an Industrial Tribunal shall be deemed a judicial proceeding for the purposes of sections 193 and 228 of the Indian Penal Code. This qualification means that such proceedings are considered judicial only for the specific purposes mentioned and are not judicial proceedings in any broader sense. Section 15(1) requires an Industrial Tribunal to submit its award to the appropriate Government, and section 15(2) mandates that, upon receipt of the award, the Government shall issue a written order declaring the award to be binding. A different provision applies when the Government itself is a party to the dispute; in that situation the Government may, on public policy grounds, refer the award to the Provincial or Central Legislative Assembly for consideration, and the Assembly may confirm, modify, or reject the award by resolution. After such a resolution, the Government must declare the award, as confirmed or modified, to be binding. Section 15(4) expressly states that an award declared binding under any of the preceding sub-sections shall not be called into question in any manner. Moreover, under section 19(3) the Government must specify the date the award will come into force and fix the period during which it will remain binding, a period that may not exceed one year. Consequently, it is clear that there is nothing in the

When the Government itself is a party to an industrial dispute, the law provides that if the Government deems it unwise for public reasons to implement the award either wholly or partially, it may, as soon as practicable, refer the award to the appropriate Provincial or Central Legislative Assembly. The Assembly may then, by passing a resolution, either confirm, modify, or reject the award. Once the Assembly has passed its resolution, the Government is required to declare the award, as confirmed or modified, to be binding in accordance with sub-section (3) of the relevant provision.

Section 15, in sub-section (4), expressly states that an award which has been declared binding under any two of the preceding sub-sections cannot be challenged in any manner. Furthermore, under section 19(3), the Government’s duty is not limited to declaring the award binding; it must also specify the date on which the award will take effect and determine the period during which the award will remain in force, and that period may not exceed one year.

From these provisions, it follows that the Industrial Disputes Act does not contain any language that can be interpreted to mean that an Industrial Tribunal functions as a court exercising judicial powers. In terms of outward features and external indications of a court, the Tribunal’s position is practically 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 render a final pronouncement that, by its own force, creates binding rights and obligations between the parties.

The responsibility for declaring an award binding lies with the appropriate Government, and this role is not merely a mechanical formality. An award cannot become operative until the Government determines the commencement date and the duration for which the award will apply, and only the Government has the power to make these determinations.

In situations where the Government is itself one of the disputing parties, the position is even less favorable for the award’s finality. In such cases, the award is always subject to the possibility that the Legislature, upon the Government’s option to lay the award before it, may reject or modify the award. Because an award that carries this contingency can never be regarded as a final or binding decision, it cannot possess the essential characteristic of a judicial proceeding.

Even in disputes between private employers and their workmen, where the Government must accept the award as rendered, the principle remains unchanged. The rule may have been formulated with regard to the qualifications and training of the individuals who constitute the Tribunal; however, the determination of the Tribunal does not acquire any authority or force until the appropriate Government makes the required declaration and fixes the operative date and period.

The Court observed that when the Government is one of the parties to an award, the award is not, on its face, a final or authoritative decision on the dispute, and either party retains the power to refer the award to the legislature, which may reject the award in whole or modify it as it deems appropriate. This observation, the Court held, reveals the true nature of the Tribunal: it cannot be suggested that the Industrial Tribunal exercises judicial functions only when the dispute is between private employers and their workmen and ceases to do so when the employer is the Government. The Court then examined the manner in which an Industrial Tribunal arrives at its decisions and stated unequivocally that the process employed is not a judicial process. In adjudicating disputes between employers and workmen, the Tribunal’s role is not limited to the administration of justice according to law. The Tribunal may grant rights and privileges to either side that it considers reasonable and proper, even when such rights are not contained in any existing agreement. Its function therefore goes beyond merely interpreting or giving effect to contractual rights and obligations; it can create new rights and obligations between the parties that it deems essential for maintaining industrial peace. The Court noted that an industrial dispute has repeatedly been described as a contest of strength between employers on one side and workers’ organisations on the other, and that the Tribunal must fashion an equitable arrangement to prevent strikes and lockouts that would hinder production and the nation’s industrial development. Accordingly, the Tribunal is not bound by the rigid rules of law; its process resembles an expanded form of collective bargaining and is more akin to an administrative function than to a judicial one. In describing the position of an Industrial Tribunal in labour disputes, the Court quoted with approval a passage from Ludwig Teller’s renowned work, which states 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 generally concerns itself with interpretation of existing obligations and disputes relating to existing agreement.” The Court adopted these observations in their entirety and concluded that an Industrial Tribunal created under the Industrial Disputes Act is not a judicial tribunal, and its determination does not constitute a judicial determination in the proper sense of those terms.

The Court then addressed the remaining issue, namely whether a party could obtain special leave to appeal before this Court against an award rendered by an Industrial Tribunal under Article 136 of the Constitution. Article 136 belongs to Chapter IV, which governs the Union Judiciary. The Constitution enumerates the various jurisdictions of the Supreme Court in a series of articles beginning with Article 131, which defines its original jurisdiction. Article 132 confers appellate powers in cases involving a substantial question of law concerning the interpretation of the Constitution. Article 133 deals with appeals in civil matters from the judgments, decrees and orders of High Courts, while Article 134 addresses criminal appeals. Article 135 provides that the Supreme Court shall have jurisdiction and powers over any matter not covered by Articles 133 and 134, if such jurisdiction and power could have been exercised by the Federal Court before the commencement of the present Constitution. Article 136 then states: “(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 language of this provision is deliberately broad. It endows the Supreme Court with a plenary authority to entertain and hear appeals by granting special leave against any form of judgment, decree, determination, sentence or order issued by any Court or tribunal, and this power may be exercised notwithstanding the specific appellate provisions contained in the preceding articles.

The controversy in the present case centered on how to interpret the two terms appearing in Article 136, namely “determination” and “tribunal”. The question was whether “tribunal” should be understood to mean only a judicial tribunal, and whether “determination” should be limited to what is traditionally described as a judicial determination. Sir Alladi argued that the principle of ejusdem generis should guide the construction of these words. He maintained that “determination” must be taken to mean a judicial determination, that is, a determination of the same nature as a decree, judgment, order or sentence, and that the term “tribunal” when occurring alongside “Court” could only refer to a judicial tribunal. In contrast, Bakshi Sir Tek Chand emphasized that the word “determination” was not present in the original draft of the Constitution and was later incorporated, apparently with the intention of widening the scope of Article 136 to include decisions of administrative and quasi-judicial tribunals as well. He pointed out that Section 2(b) of the Industrial Disputes Act defines “award” as a determination, whether interim or final, of an industrial dispute made by an Industrial Tribunal. This definition, he suggested, illustrates that the legislature intended “determination” to encompass the awards of Industrial Tribunals, which are not strictly judicial bodies. Both viewpoints therefore possessed elements of merit, and the difficulty lay in the fact that neither “determination” nor “tribunal” has a fixed or exclusive meaning in ordinary language, a point that the Court later explored further.

The Court observed that both positions advanced earlier have some merit, but it identified a difficulty arising from the fact that the terms “determination” and “tribunal” do not possess a fixed or definite meaning in ordinary language. According to the Court, the word “determination” denotes the ending of a controversy or litigation through a decision rendered by a judge or an arbitrator, and it is not confined solely to proceedings that take place in a Court. Similarly, the dictionary definition of “tribunal” is “court of justice” or “seat of a judge.” The Court explained that “judge” refers to any authority empowered to decide contested matters between rival parties, and consequently the expression “tribunal” cannot be limited only to a regular Court of law. The Court further held that where a tribunal is a full-fledged judicial tribunal, its decisions unquestionably fall within the proper subject-matter of an appeal under Article 136 of the Constitution. The remaining question, the Court noted, is whether Article 136 also embraces determinations made by quasi-judicial tribunals.

Continuing its analysis, the Court stated that, as a general rule, no restrictive interpretation should be placed upon the plain words of a constitutional article that would curtail the power to grant special leave for appeals, a power the Constitution deliberately did not restrict. At the same time, the Court admitted that some limitation may be unavoidable when the context of particular words suggests an implicit restriction consistent with the purpose for which Article 136 was enacted. Article 136, the Court explained, authorises in its discretion the hearing of appeals from pronouncements of all inferior courts and tribunals. While no difficulty arises with appeals from courts of law, the Court cautioned that it would be improper to impose a rigid rule barring appeals against determinations of bodies that are not courts in the strict sense. The Court observed that a great variety of adjudicating bodies exist, differing widely in structure, composition, powers and functions. Accordingly, the Court proposed that each type of case should be examined as it arises; if, after such examination, the Court finds that it cannot fully and effectively exercise its appellate powers over determinations issued by a particular tribunal, then those determinations must be held to lie outside the scope of Article 136. The Court further explained that such a disability may stem from the fact that the principles ordinarily used to assess the soundness of judicial decisions may not be applicable to the determinations of certain administrative tribunals. It may also arise because the law governing the tribunal prevents the Court from issuing an effective order that would be binding and operative of its own force without the intervention of another authority.

In this matter the Court observed that difficulties arise whenever an appeal is entertained against a decision of an Industrial Tribunal because the tribunal’s award does not become final and binding until the appropriate Government expressly declares it so. The Court noted that, until such a declaration is made, neither party to the dispute has a genuine ground to file an appeal, since the award remains provisional. An appeal, if it is permissible at all, could only be filed after the Government has declared the award binding. The Court then questioned whether, in such circumstances, the appeal would challenge merely the tribunal’s original determination or would also contest the additional declaration made by the Government. It pointed out that the appellate decision would inevitably affect not only the tribunal’s determination but also the status of the award within the meaning of Article 136 of the Constitution. The Court further asked that, assuming the award is set aside and the Court substitutes its own determination in place of the tribunal’s award, whether that substituted award would be enforceable on its own or would still require a Government declaration to acquire binding force. It also considered the situation where the Government itself is a party to the dispute, asking whether the Government could refer the Court’s decision to the Legislative Assembly and whether the Assembly would have competence to reject or modify the Court’s award. The Court explained that these problems arise because, under Section 15 of the governing Act, an award becomes binding only upon a Government declaration, and consequently any infirmities that affect the original award would also attach to the Court’s judgment if it replaces the award.

The Court identified a second, equally formidable difficulty, namely that an Industrial Tribunal is not bound to resolve disputes by applying the ordinary law of the land. Instead, the tribunal’s decisions often rest on questions of policy and public convenience, making it impossible for the Court to assess the propriety of those decisions against a fixed legal standard. The Court observed that the very policy of law prevents interference with the discretion exercised by the tribunal. It further stated that when discretion is vested in a body or tribunal performing quasi-judicial functions that are not constrained by ordinary legal rules, the tribunal, absent any contrary provision, should be deemed to have the final authority in exercising that discretion. Consequently, the Court cannot sit in appeal over the tribunal’s decision and replace the tribunal’s discretion with its own. Nevertheless, the Court warned that questions may arise when such a quasi-judicial body attempts to usurp jurisdiction it does not possess, either by assuming jurisdiction on a mistaken view of law or by refusing to act within its proper jurisdiction.

In this context the Court explained that a tribunal may act beyond its lawful authority when it decides a matter by relying on considerations that are extraneous or irrelevant, or when it conducts its proceedings in a manner that violates the principles of natural justice. The Court held that whenever such a situation arises, the appropriate remedy is for a superior court to issue a writ of certiorari or a writ of prohibition. By exercising such jurisdiction, the Court may order that the decision of the tribunal be set aside because the tribunal lacked jurisdiction or because the decision was based on a mistake that is apparent on the face of the record. If the proceedings of the tribunal had not yet concluded, the Court may also issue a writ of prohibition to prevent the tribunal from continuing to act outside its jurisdiction. The Court emphasized that issuing these writs does not amount to exercising appellate powers, meaning that the Court is not rehearing the case or substituting its own judgment for that of the tribunal; rather, the writs are intended solely to keep the quasi-judicial body within the limits of the jurisdiction that the law has assigned to it and to restrain it from exceeding that authority. The Court noted that these principles are well settled and require no further explanation, citing the decisions in Rex v. Electricity Commissioner and Board of Education v. Rice. Consequently the Court concluded that Article 136 of the Constitution does not contemplate a determination made by the Industrial Tribunal. The Court further observed that even if, for the sake of argument, jurisdiction under Article 136 were assumed to exist, the circumstances of each case would determine whether the Court could entertain an appeal, and on the basis of the reasons previously set out, the Court found that the present appeal should not be admitted even if the Court possessed the power to do so. Accordingly, the Court held that the preliminary objection raised by the respondents succeeded, the appeal therefore failed, and the appeal was dismissed with costs. The judgment was delivered by Patanjali Sastri, J. Another Justice agreed with this conclusion and added no further comment. The parties were represented by counsel, with Ganpat Rai appearing for the appellant, R. R. Biswas for the respondents, and P. A. Mehta for the intervener, the Union of India.