United Commercial Bank Ltd vs Their Workmen (And Other Cases) Union of India

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

Court: supreme-court

Case Number: Civil Appeals Nos. 35 to 50 of 1951

Decision Date: 09/04/1951

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

In this case the Supreme Court of India delivered its judgment on 9 April 1951. The judgment was authored by Justice Hiralal J. Kania, who sat with Justices Saiyid Fazal Ali, Mehr Chand Mahajan, Vivian Bose and B.K. Mukherjea. The petitioner was United Commercial Bank Ltd., while the respondents were their workmen, with the Union of India appearing as an intervener. The decision was reported in 1951 AIR 230 and 1951 SCR 380, and it was later cited in several subsequent reports.

The matter concerned the operation of the Industrial Disputes Act 1947, specifically sections 7, 8, 12 and 16, together with Rule 5 made under the Act. The Central Government had formed an industrial tribunal under the Act in September 1949. The tribunal was composed of three members, identified in the record as A, B and C, and it was tasked with deciding certain industrial disputes. On 23 November 1949 the services of member C were requisitioned by the Ministry of External Affairs so that C could serve as a member of the Indo-Pakistan Boundary Disputes Tribunal. The two remaining members, A and B, continued to sit and hear the industrial disputes after an objection was raised by one of the parties.

Member C returned from the Boundary Disputes Tribunal on 20 February 1950 and resumed sitting with members A and B, thereby participating in further proceedings on the disputes that had been partly heard but not finally decided before his absence. Subsequently, on 20 May 1950 the Government issued a notification stating that C had “resumed charge of his duties as a member of the All India Industrial Tribunal.” Awards were made by members A and B before 20 February 1950, and after that date awards were made by the three members A, B and C together.

The Court held, by a majority of Justice Kania, Chief Justice, along with Justices Mehr Chand Mahajan, Das and Bose, that when C was appointed to the Boundary Disputes Tribunal his services to the industrial tribunal “ceased to be available” and, in the sense of section 8 of the Industrial Disputes Act, a vacancy was created. The Court explained that, according to section 8 read with Rule 5, the Government was obligated to issue a notification indicating whether it intended to fill the vacancy; if the Government decided not to fill the vacancy, a further notification under section 7 was required to constitute the remaining members as a tribunal, because a tribunal of three members is a distinct body from a tribunal consisting of only two members. The Court further observed that neither C’s return to sit on 20 February 1950 nor the notification of 20 May 1950 could be treated as an appointment to the vacancy that arose when C was initially transferred to the Boundary Disputes Tribunal. Consequently, the awards made by A and B after C’s services ceased to be available, as well as the awards made after 20 February 1950 by A, B and C together, were not made by a tribunal duly constituted under the Act and were therefore void. The Court characterized the situation as one of absence of jurisdiction rather than a mere procedural irregularity, noting that the duty to hear and decide the disputes was a joint responsibility of all three original members, and that the defect could not be cured by subsequent actions.

Justices Fazal Ali and Patanjali Sastri dissented from the majority opinion.

In the majority view the Court held that a body composed of only two members is a distinct Tribunal and cannot be equated with a Tribunal comprising all three original members. Consequently, the fact that C returned to sit together with A and B from 20 February 1950, and the notification dated 20 May 1950 announcing that C had “resumed charge of his duties as a member” of the Tribunal, were not to be regarded as an appointment filling the vacancy that arose when C was appointed to the Boundary Disputes Tribunal. The Court further observed that any awards rendered by A and B after C’s services were no longer available, as well as the awards made after 20 February 1950 by A, B and C together, were not issued by a Tribunal duly constituted under the Industrial Disputes Act and therefore were void. Because the two remaining members did not form a properly constituted Tribunal, and because the responsibility to hear and determine matters rested jointly on the three members who originally constituted the Tribunal, the situation amounted to a complete lack of jurisdiction rather than a simple procedural irregularity, and such a defect could not be cured by acquiescence or estoppel. In dissent, Justices Fazl Ali and Pattanjali Sastri argued that a “vacancy” within the meaning of Section 8 arose when C’s services were assigned to the Boundary Disputes Tribunal, giving the Government the discretion to fill the vacancy or leave it unfilled. They contended that the Government’s decision not to fill the vacancy did not render the Tribunal imperfectly constituted, and that the Tribunal could lawfully continue its proceedings despite the vacancy. Moreover, they held that because the vacancy was temporary and remained unfilled, C did not cease to be a member of the Tribunal and could re-join it as soon as his duties in the other office ended. Even assuming that a new appointment under Section 8(1) was required, they said the statutory requirements were satisfied when C rejoined under Government orders, a fact that was reflected in the 20 May 1950 notification. They further noted that Rule 5 of the Industrial Disputes Rules applies only at the initial constitution of a Tribunal and does not govern appointments made to fill vacancies. Justice Mukherjee, however, emphasized that an Industrial Tribunal may be constituted only in accordance with Section 7 of the Act; without proper constitution the Tribunal lacks jurisdiction to adjudicate industrial disputes. He pointed out that subsection (2) of Section 7 empowers the appropriate Government to determine the number of members, and any alteration in that number must be effected pursuant to that provision. Since Section 8 does not provide that the remaining members may continue as a Tribunal in the absence of the vacant seat, the Court concluded that the Tribunal was not validly constituted during C’s absence.

When the services of a member of an Industrial Tribunal become unavailable and the Government does not appoint a replacement, the remaining members continue to constitute the Tribunal. The re-constitution of a Tribunal can occur only under section 7 of the Industrial Disputes Act, and because there was no notification by the appropriate Government under section 7 that the two remaining members alone constituted a Tribunal during the absence of member C, any proceedings held before those two members and any awards signed by them while C was absent were void. However, a fresh notification was not required when the absent member later returned, because the original notification appointing all three members remained unchanged and unamended. By virtue of that original notification, the three members together were competent to sit as a Tribunal and to discharge its duties. Consequently, the Tribunal was properly constituted from 20 February 1950, and the awards made by all three members after that date were not void for lack of jurisdiction.

The Court then set out the civil appellate jurisdiction for the appeals by special leave against the award dated 31 July 1950 of the All India Industrial Tribunal (Bank Disputes). The appeals were numbered 35 to 50 of 1951. The facts of the case and the arguments of counsel were recorded in the judgment. Counsel for the appellants included a senior advocate appearing in appeals 35, 36 and 37, another counsel in appeal 38, counsel for appellants in appeals 41, 43, 44, 45, 46 and 49, counsel for appellants in appeals 48 and 50, counsel for appellants in appeals 39, 40 and 42, and counsel for the appellant in appeal 47. Counsel for the respondents comprised senior counsel appearing in appeals 35, 36, 40, 41, 42, 43 and 44, another counsel in appeals 37, 39, 45 and 46, counsel in appeals 38 and 50, and counsel in appeals 48 and 49. The Attorney-General for India was also present, as was counsel for the intervener, the Union of India, in appeal 51. The judgment was delivered on 9 April by Chief Justice Kania, with contributions from Justices Mehr Chand Mahajan, S.R. Das and Vivian Bose, while Justices Fazl Ali, Patanjali Sastri and Mukherjea each delivered separate judgments. Chief Justice Kania framed the preliminary issue for determination: whether the Industrial Tribunal (Bank Disputes) possessed jurisdiction to make the awards, a question that depended upon the correct construction of sections 7, 8, 15 and 16 of the Industrial Disputes Act.

Sections 8, 15 and 16 of the Industrial Disputes Act were the statutory provisions relevant to the jurisdiction of the Tribunal. According to the agreed statement of facts, the Government of India issued a notification dated 13 June 1949 under which the Central Government constituted an Industrial Tribunal for adjudicating disputes in banking companies. The Tribunal was composed of Mr K.C. Sen as chairman, Mr S.P. Varma and Mr J.N. Mazumdar. A further notification dated 24 August 1949 was subsequently issued, stating that in exercise of the powers conferred by sub-section (1) of section 8 of the Industrial Disputes Act, the Central Government appointed Mr N. Chandrasekhara Aiyar as a member of the Tribunal, replacing Mr S.P. Varma whose services were no longer available. The Tribunal began its regular sittings in Bombay from 12 September to 16 September 1949. After that, it held sittings at Delhi and Patna during the period from 19 September 1949 to 3 April 1950. During these sessions, Mr Mazumdar was absent on several occasions, and Mr Chandrasekhara Aiyar was absent from 23 November 1949 to 20 February 1950 because his services were required by the Ministry of External Affairs as a member of the Indo-Pakistan Boundary Disputes Tribunal. While Mr Aiyar was away, Mr Sen and Mr Mazumdar sat together at various locations between 23 November 1949 and 20 February 1950 and made certain awards. Those awards were accepted by the Government under section 15 of the Act and were published in the Gazette as the official awards of the Tribunal.

The Tribunal reconvened its sittings in Bombay to consider general issues from 16 January 1950 and concluded these proceedings on 3 April 1950. The agreed statement of facts records that the services of Mr Chandrasekhara Aiyar were unavailable to the Tribunal from the afternoon of 23 November 1949 until the forenoon of 20 February 1950. Between 16 January 1950 and 20 February 1950 the Tribunal dealt with a number of matters, specifically fifteen items covering, among others, Issues 1, 2, 3, 4, 15, 23, 27, 28, 33, 34 and 37. These issues included questions concerning the Tribunal’s jurisdiction over officers of banks that operated branches in more than one Province, banks that were in liquidation, the retrospective effect of an award, matters relating to provident and guarantee funds, and allowances for special categories of workmen. The notes of the Tribunal’s proceedings indicate that many banks and workmen were parties to the cases, and that certain workmen who could not attend the entire series of hearings later appeared to express their views on the aforementioned issues after Mr Aiyar resumed his duties on the afternoon of 20 February 1950, again sitting together with Mr Sen and Mr Mazumdar.

The Court observed that the authority of the Tribunal comprising Mr. Sen, Mr. Mazumdar and Mr. Chandrasekhara Aiyar to render an award was challenged on two separate grounds. The first ground contended that after the services of Mr. Chandrasekhara Aiyar ceased to be available, as recorded in the agreed statement of facts, the two remaining members should have been re-appointed in order to constitute a valid Tribunal. The second ground asserted that when Mr. Chandrasekhara Aiyar resumed sitting with Mr. Sen and Mr. Mazumdar from the forenoon of 20 February 1950, a fresh notification under section 7 of the Industrial Disputes Act was required to constitute a Tribunal. The argument advanced was that, in the absence of Mr. Chandrasekhara Aiyar, the two members could not exercise jurisdiction over any matter without the appropriate notification, and that because his services had terminated on 23 November 1949, he could not again sit with the other two members to form a Tribunal unless a notification under section 7 was issued.

To determine the correct legal position, the Court examined the overall scheme of the Industrial Disputes Act, which provides for the creation of a Conciliation Board, a Court of Inquiry and a Tribunal for adjudication. Relevant provisions of sections 5, 6, 7, 8, 15 and 16 were considered. Section 5 enables the appropriate Government, by way of a Gazette notification, to constitute a Board of Conciliation consisting of a chairman and either two or four other members. The chairman must be an independent person, while the other members are appointed in equal numbers to represent the parties, each on the recommendation of the respective party. The Board may act even if the chairman or any member is absent or a vacancy exists, but if the Government notifies that the services of the chairman or any member have ceased, the Board is prohibited from acting until a new appointment is made. Section 6 similarly allows the Government to constitute a Court of Inquiry by notification, which may consist of a single independent person or several independent persons, one of whom must be designated chairman when there are multiple members. The Court may also act despite the absence of its chairman or any member or a vacancy, provided that a notification of cessation of the chairman’s services bars the Court from acting until a new chairman is appointed. Section 7 authorises the Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes. A Tribunal may have any number of members as deemed appropriate, with one member appointed as chairman when there are two or more members. Every member of a Tribunal must be an independent person who either is or has been a High Court Judge or a District Judge, or who is qualified for appointment as a High Court Judge; if a member does not meet these qualifications, the appointment must be made in consultation with the High Court of the Province where the Tribunal ordinarily sits.

In this case the Court set out the statutory provisions that empower the appropriate Government to create bodies for the settlement of industrial disputes. Under clause seven, the Government may, by notification in the official Gazette, establish one or more Industrial Tribunals to adjudicate such disputes in accordance with the Act. The legislation allows the Government to determine the number of members that each Tribunal shall have. Whenever a Tribunal consists of two or more members, the statute requires that one of those members be designated as the chairman. Moreover, every member of a Tribunal must be an independent person who either is or has been a Judge of a High Court or a District Judge, or who is qualified to be appointed as a Judge of a High Court. The law further provides that if a person who does not satisfy the qualification set out in the first alternative is to be appointed, such appointment must be made after consulting the High Court of the Province where the Tribunal is, or is intended to be, seated. These provisions underscore the emphasis on independence and judicial expertise in the composition of tribunals that are tasked with resolving industrial disputes.

Clause eight deals with the procedure to be followed when the services of a chairman or any other member of a Board, Court, or Tribunal cease to be available. The statute mandates that the appropriate Government must, in the case of a vacancy of a chairman, appoint another independent person to fill the vacancy, and may also appoint a replacement for any other member whose services have ended. Once the new appointment is made, the proceedings are to continue before the reconstituted body. If a Court or Tribunal consists of a single member and that member’s services cease, the Government must appoint another independent person in his place, and the proceedings shall continue before the newly appointed individual. Additionally, when a member of a Board other than the chairman is no longer available, the Government must appoint a replacement in the manner prescribed in subsection three of section five, after which the Board may resume its business. The Act further requires that, when an industrial dispute is referred to a Tribunal, the Tribunal must conduct its proceedings expeditiously and, as soon as practicable after concluding the matter, submit its award in writing to the appropriate Government. Upon receipt of the award, the Government must issue a written order declaring the award binding, and, except as provided in the proviso to subsection three of section nineteen, such an award cannot be called into question in any manner. Finally, the legislation stipulates that the report of a Board or Court and the award of a Tribunal must be in writing and signed by all members of the respective body, while allowing any member to record a minute of dissent from a report, award, or any recommendation contained therein.

In examining the effect of the absence of members at the sittings of the various statutory bodies, the Court observed that section 5(4) expressly permits a Board of Conciliation to continue its business despite the absence of a member or the existence of a vacancy, provided that the quorum prescribed by the rules under the Act is satisfied. The quorum itself is determined by those rules. However, the proviso to the same subsection adds that if the appropriate Government informs the Board that the services of the chairman or any other member have ceased to be available, the Board is forbidden from acting until a new chairman or member, as the case may be, is appointed. By reading these two provisions together, a clear distinction emerges between a mere temporary or casual absence of a member, which does not prevent the Board from functioning as long as quorum exists, and a situation in which the Government has formally notified that a member’s services have terminated, which disables the remaining members from exercising jurisdiction on behalf of the Board. The phrase “having the prescribed quorum” therefore imposes an additional limitation on the authority of the remaining members when the full complement is not present. Consequently, when the Government notifies the Board of the cessation of a chairman’s or member’s services, the remaining members lose the power to act in the Board’s name. This scheme therefore takes into account all possible contingencies: temporary absence, permanent vacancy, and the formal cessation of a member’s services, each being expressly provided for.

In a similar manner, the Act contains parallel provisions for the Court of Inquiry in section 6(3), and comparable rules are laid down for industrial tribunals in section 7. Section 7 is the only provision that governs the establishment of a Tribunal. Its first clause authorises the appropriate Government to constitute one or more industrial tribunals to perform the functions assigned under the Act. Sub-clause (2) empowers the Government to determine the number of members it deems appropriate for each Tribunal, thereby allowing flexibility in fixing the Tribunal’s composition. Sub-clause (3) and its proviso deal with the qualifications required of individuals to be appointed as members, a matter that does not concern the present discussion. Although section 7 does not contain a requirement akin to sections 5(1) and 6(1) that the constitution of a Tribunal be published in the official Gazette, this omission is compensated by rule 5 of the Industrial Disputes Rules, 1949, made under section 38 of the Act. Rule 5 mandates that the appointment of a Board, Court or Tribunal, together with the names of the persons constituting it, must be notified in the official Gazette. Thus, the appropriate Government is obligated to publish both the composition of the Tribunal and the identities of its members, ensuring that the Tribunal is validly constituted and that parties to industrial disputes are aware of the authorized adjudicators.

The Court observed that rule 5 of the Industrial Disputes Rules, 1949 obligates the appropriate Government to publish in the official Gazette both the composition of an industrial Tribunal and the names of the individuals who will constitute it. This requirement is indispensable when the Tribunal is tasked with adjudicating disputes between employers and employees that have not been settled by any other means. Publication in the Gazette removes any uncertainty for the parties as to which persons are empowered to decide their disputes, and it aligns with the practice of notifying appointments of public servants who perform judicial or quasi-judicial functions. Accordingly, the number of members of the Tribunal and the names of those members must be officially announced in order to give the Tribunal a proper and valid existence. The Court noted that section 7 of the Act contains no provision analogous to sections 5(4) or 6(3). Section 15 of the Act mandates that once an industrial dispute is referred to a Tribunal, the Tribunal must conduct its proceedings promptly and, as soon as practicable, submit its award to the appropriate Government. The Court further held that it is undisputed that the Tribunal must sit as a single body and that the award must reflect the collective deliberations of all members acting together. Section 16 reinforces this by requiring each member of the Tribunal to sign the award; the joint nature of the function means no member may refuse to sign. An award that lacks the signatures of all members is invalid because it would not constitute a genuine award of the Tribunal.

The Court then turned to the issue raised by the vacancy created when the services of Mr Chandrashekhara Aiyar ceased to be available. The record showed two telegrams exchanged between Mr Sen and the Government, indicating that the Government considered a vacancy to have arisen and decided not to fill it immediately. The Court asked whether, under a proper construction of the Act, the Government was obliged to inform the parties to the dispute that it had chosen not to fill the vacancy. It questioned whether the Government could leave the parties uncertain about the composition of a Tribunal that was responsible for resolving significant disputes between them. In the Court’s opinion, the overall scheme of the Act requires the Government to communicate its decision regarding the vacancy—whether it intends to fill it or not—and to subsequently publish the names of the individuals who will constitute the Tribunal. This conclusion follows because a Tribunal with three members, including Mr Aiyar, is a different entity from a Tribunal comprising only two members, and the parties must be made aware of which configuration will adjudicate their dispute.

The Court observed that a tribunal composed of three members—Mr Sen, Mr Mazumdar and Mr Chandrasekhara Aiyar—was legally distinct from a tribunal composed of only two members, namely Mr Sen and Mr Mazumdar. Consequently, the Court turned to an examination of section 8, which the respondents had heavily relied upon. The marginal note to that provision described it as “filling of vacancies”. Section 8 addressed the Board, the Court and the Tribunal in separate clauses. Under sub-section (1) the legislature clearly envisioned that whenever the services of a member, including a chairman for the purposes of this discussion, ceased to be available, a vacancy would arise. The sub-section dealt with the situation in three sequential stages. First, the question was whether the services of a member had indeed ceased. If the answer was affirmative, a vacancy was deemed to have arisen. Second, the statute asked what action the appropriate Government could take in response to that vacancy. Third, if the Government chose to fill the vacancy by making an appointment, the statute then governed how the proceedings would continue before the Board, Court or Tribunal now “so reconstituted”. The respondents argued that only the appropriate Government could determine when a member’s services had ceased, and that this determination was not for the Court to decide. The Court disagreed, holding that the Government’s discretion was limited to deciding whether to appoint a replacement after a vacancy had been established. Once that discretion was exercised, the statute imposed a duty on the Government to appoint another person if the vacancy concerned a chairman. In the case of a vacancy in an ordinary member’s post, the Government retained the option either to appoint a replacement or to leave the post vacant. The phrase “so reconstituted” at the end of sub-section (1) was interpreted to refer only to the situation where the Government filled the vacancy with a new, independent person, and the latter part of the sub-section provided for the continuation of proceedings before the body after such reconstitution. Sub-section (2) further provided that where a court or tribunal consisted of a single member and that member’s services ceased, the appointment of another independent person would allow the proceedings to continue before the new appointee without necessitating a restart of the proceedings. Section 8(3) dealt with the contingency of a Board member’s services becoming unavailable. It required the appropriate Government to make an appointment as prescribed in section 5(3) and stipulated that, even though a completely new individual might fill the vacancy, the proceedings would nonetheless continue before the Board now “so reconstituted”. By reading the three clauses together, the Court concluded that the purpose of section 8 was

The purpose of section 8 is to lay down precise rules for those situations in which the Government is required to fill a vacancy that arises because the services of a member or the chairman are no longer available, and to specify the effect of appointing a completely new person to that vacancy. In the Court’s reading of the Act, this purpose represents the entire object and intention of the provision. The provision does not address what should happen if the Government chooses not to make an appointment when it has the discretion to do so. The stress placed on the expression “so reconstituted” in sub-sections (1) and (3), together with the concluding words of each clause, clearly demonstrates that the legislature intended this limited scope.

The parties argued that, although section 8(1) does not expressly state what must occur when the Government fails to fill a vacancy, it is implicitly understood that the remaining members may continue the work. The Court was unable to accept that argument. Firstly, as noted earlier, the object of section 8 is to identify the circumstances in which a vacancy must be filled and to prescribe how the proceedings should proceed once the vacancy has been filled. The provision makes no reference at all to the consequences of the Government’s decision not to fill the vacancy. In this respect, the provisions of sections 5(4) and 6(a) have already been considered. When the legislature wished to allow the remaining members to continue the work despite a temporary absence or a permanent vacancy, it made an express provision to that effect.

If, in the case of a Board or a Court of Inquiry – bodies that do not adjudicate disputes – the legislature deemed it necessary to provide a rule enabling the remaining members to act as a body, the Court observes that the absence of a similar rule for a Tribunal is significant. A Tribunal adjudicates disputes and its quasi-judicial functions are inherently joint and collective. The lack of a provision for the Tribunal therefore leads to the unavoidable conclusion that, in the absence of one or more members, the remaining members are not competent to act as a Tribunal at all. The provisos to sections 5(4) and 6(3) reinforce this position. Under those provisos, when the Government informs the remaining members that the services of one member “have ceased to be available”, the remaining members have no authority to act as the Board or the Court.

Consequently, it is appropriate to hold that, with respect to a Tribunal, when the services of a member have ceased to be available, the remaining members do not, by themselves, have the right to act as the Tribunal. The question before the Court can be divided into two parts. The first part is whether, at the time of the appointment of Mr Chandrasekhara Aiyar as a member of the Boundary Tribunal, his services ceased to be available within the meaning of section 8, thereby creating a vacancy. The parties have placed before the Court only two telegrams exchanged between the chairman and Mr Mazumdar on one side and the Central Government on the other, to aid in reaching a conclusion on this issue.

In order to determine the consequences of Mr. Chandrasekhara Aiyar’s appointment to the Boundary Tribunal, the Court examined the correspondence exchanged between the Chairman and Mr. Mazumdar on one side and the Central Government on the other. The Court also considered certain Government notifications that were published in May and June 1950, which appeared three or four months after Mr. Aiyar had ceased to serve on the Boundary Tribunal. The Court held that these later notifications were ex post-facto and could not be used to resolve the crucial question framed under section 8. It was clear that, at the time of Mr. Aiyar’s appointment to the Boundary Tribunal, no one could predict how long the Tribunal’s work would continue. Moreover, the evidence before the Court on that date did not indicate that the appointment was intended only for a brief period; the Tribunal’s work might have lasted anywhere from a month to a year.

Given the urgency and the necessity for speedy resolution of industrial disputes emphasized in section 15, the Court found that delegating a member of such a Tribunal to another Tribunal, whose duration might be indefinite, inevitably caused that member’s services to become unavailable to the Industrial Tribunal within the meaning of section 8, thereby creating a vacancy. The later Government notification of May 1950, which stated that Mr. Aiyar’s services were lent to the External Affairs Ministry “from the 23rd of November, 1949, to the 20th of February, 1950,” was seen by the Court as a bureaucratic notice intended for the Accountant-General and the Audit departments rather than an indication of the Government’s intention at the time of the original appointment on 23 November.

When the Chairman, Mr. Sen, and Mr. Mazumdar convened their first sitting of the Tribunal without Mr. Aiyar, an objection was raised concerning the Tribunal’s constitution. Consequently, the two members reported the occurrence to the Government, placing the Government before a decision. The Government’s reply telegram instructed Mr. Sen and Mr. Mazumdar to proceed with the Tribunal’s business and added that the vacancy might be filled at a later date. The Court examined the effect of this telegram in light of section 8 and concluded that the telegram could be interpreted only as a decision not to fill the vacancy immediately. If a vacancy existed, the Government was required either to make a new appointment or to state expressly that it would not do so. The Government could not postpone its decision on the vacancy while simultaneously directing the remaining members to continue the reference. This view was affirmed because the fundamental principle governing the Tribunal required the full complement of members to act jointly.

The Court observed that the fundamental requirement for the Tribunal to carry out its functions was that every member had to sit and participate in the proceedings together. In the absence of a member, even if the absence was casual or temporary due to illness, the remaining members could not lawfully continue the reference in the name of the Tribunal because the Act contained no provision such as section 5(4) or section 6(3) that would permit the Tribunal to act with fewer than all its members.

The Government had, by means of two notifications outlined earlier in the judgment, formally constituted the Tribunal as a three-member body consisting of Mr Sen as Chairman, Mr Mazumdar, and Mr Chandrasekhara Aiyar. Proceeding with adjudication while one member was missing, the Court held, undermined the essential principle of joint work and collective responsibility that required all members to make the award together. Moreover, the Government’s telegram did not assert that no vacancy existed; on the contrary, it acknowledged that a vacancy had arisen and indicated that an appointment might be made at a later date. When those words were interpreted without extraneous considerations, the Court concluded that the Government’s intention was that the two remaining members should continue the adjudication as a Tribunal.

That intention was acted upon. The two members, Mr Sen and Mr Mazumdar, went ahead with the reference and issued several awards. Those awards were transmitted to the Government under section 15(2). By order of the Government, the awards were declared binding and were subsequently published in the official Gazette. The awards bore only the signatures of Mr Sen and Mr Mazumdar. Considering the awards together with the earlier notifications and the provisions of sections 15 and 16, the Court found it clear that between 23 November 1949 and 20 February 1950 the Government “intended” the Tribunal to consist solely of Mr Sen and Mr Mazumdar.

The Court noted that it could not be seriously disputed that, had the Government decided to fill the vacancy, a fresh notification would have been required. The question, therefore, was under which rule such a notification should be issued. The Court answered that the requirement arose from rule 5, which mandates public intimation of any new person becoming a member of the Tribunal. The Court reasoned that the need for public notice under rule 5 applied equally when a Tribunal originally constituted of three members—Mr Sen, Mr Mazumdar, and Mr Chandrasekhara Aiyar—was, by Government decision, to function from a certain date as a Tribunal of only Mr Sen and Mr Mazumdar. Although section 8 uses the term “reconstituted” for the situation where a new member joins an existing panel, the Court held that the wording of section 8 does not exclude the Government’s obligation to issue a notification under rule 5 when the change does not involve a reconstitution but rather a new constitution of the Tribunal. The Court further observed that the Government, however, had not complied with that requirement.

In this case, the Court observed that the Government had failed to implement its intention by issuing a new notification under section 7 of the Act after the services of Mr Chandrasekhara Aiyar ceased. Consequently, when the Government decided not to appoint another independent person to fill the vacancy, only two members remained in the Tribunal, and no notification under section 7 was issued to constitute such a two-member Tribunal. The Court held that, according to the provisions of the Act, a notification under section 7 was absolutely necessary to enable a Tribunal consisting of two persons to operate lawfully. The Court further stated that the work performed by the two members in the absence of such a notification could not be treated as the work of a Tribunal lawfully established under the Act, and therefore all their actions were without jurisdiction. The respondents contended that the departure of Mr Chandrasekhara Aiyar created only a temporary absence, which need not be filled, and that the remaining two members possessed jurisdiction under the Act to continue adjudicating. The Court rejected this contention, noting firstly that the agreed statement of facts made no reference to any temporary absence, and secondly that the Government’s telegram of 29 November expressly acknowledged the existence of a vacancy, thereby precluding any notion of temporary absence for consideration. The Court explained that drawing an analogy with the temporary leave or deputation of a Judge was misleading, because section 7 requires the Government at the initial stage to decide the number of members and to notify their identities, and once that step is taken, the Government lacks the power to direct only a few members to proceed with adjudication for any period. The Court observed that section 8 did not apply to this situation. Moreover, the Court referred to rule 12, which permitted a Tribunal of two or more members to act despite a casual vacancy only with the consent of the parties, indicating that even when a vacancy existed, the remaining members could continue only with such consent. This rule, framed under section 38 of the Act, contradicted the respondents’ claim that section 8 implicitly empowered the two remaining members to act without a notification; otherwise the rule would have been unnecessary. Although rule 12 was repealed on 3 December, it was in force at the time Mr Chandrasekhara Aiyar’s services ended, and therefore the requirement of party consent remained relevant.

From the twenty-third day of November, the Tribunal was without the services of Mr Chandrasekhara Aiyar. The Court observed that, in situations of temporary absence, the consent of the parties was a prerequisite for the remaining members to continue the work of the Tribunal. Consequently, the Court concluded that when the absence was not merely casual but resulted from the permanent cessation of a member’s services, the lack of party consent rendered any continuation by the remaining members invalid. Accordingly, every award that had been rendered by Mr Sen and Mr Mazumdar after Mr Aiyar’s services had become unavailable was not the product of a Tribunal duly constituted under section 7 and, therefore, each of those awards was void. It was further argued that the Government, by directing Mr Aiyar to resume his duties as a member of the Bank’s Tribunal in February 1950, had filled the vacancy created under section 8. The Court rejected this contention, stating that the factual record did not support such a conclusion. The Court noted that the Government’s instruction to the two remaining members to proceed with their work and to certify their awards as Tribunal awards indicated an intention not to fill the vacancy. Moreover, the notification issued in June 1950 merely recorded that Mr Aiyar had “resumed” his role, a term that implies a temporary return rather than an appointment to fill a vacancy. In the absence of any additional evidence, the Court could not treat the fact that Mr Aiyar sat with the two members after the twentieth of February, 1950, as an appointment filling the vacancy that arose from his earlier departure to the Boundary Tribunal in November 1949.

At one stage, it was suggested that the Tribunal members could delegate their work to a subset of members and that an award could be upheld on that basis. The Court examined this proposal and first determined that the rule permitting delegation had only been published on the third of December 1949, after Mr Aiyar had already left for the Boundary Tribunal on the twenty-third of November. Consequently, no delegation under that rule could have been effected at the relevant time. Furthermore, the factual record and the awards themselves did not indicate any delegation of the general issues to a limited group of members, nor was there any report made to, or considered by, the full Tribunal as the rule required. The next issue addressed by the Court was the effect of Mr Aiyar’s participation with the two members after the twentieth of February 1950. The record showed that the two members had examined most of the general issues concerning the banks in numerous meetings. The nature and volume of the work undertaken during that interval had been summarized earlier in the judgment. It was not contested that when Mr Aiyar rejoined the Tribunal on the twentieth of February, the matters previously considered in his absence were not reopened or reheard. Rather, the three members continued the work from the point it had progressed up to the nineteenth of February, 1950, and the award under consideration bore the signatures of all three members, reflecting the premise that all three were members of the Tribunal at that time. The Court found this premise untenable, because when Mr Aiyar’s services ceased in November 1949, the Government had accepted that a vacancy had arisen; therefore, his later presence could not be regarded as a continuation of his former membership.

In the earlier part of the judgment, the Court had summarized the work that the members of the Tribunal performed during the interval in question. It was not alleged that when Mr Chandrasekhara Aiyar resumed his seat alongside the other two members on 20 February, the proceedings that had taken place during his absence were to be repeated or reheard. Rather, Mr Chandrasekhara Aiyar and the two remaining members continued the work from the point at which it had progressed up to 19 February 1950. The award now before the Court bore the signatures of all three members, which was premised on the assumption that the three persons were, at that time, members of the Tribunal. Counsel for the respondents suggested that Mr Chandrasekhara Aiyar should be regarded as having remained a member of the three-person Tribunal throughout, and that his service simply resumed after a temporary absence that lasted from November 1949 to February 1950. The Court found this suggestion untenable. When Mr Chandrasekhara Aiyar’s services ceased to be available to the Tribunal in November 1949, the Government accepted that a vacancy had arisen; consequently, under the Government notification of June 1949, Mr Chandrasekhara Aiyar ceased to be a member of the three-person Tribunal as originally constituted. There was no subsequent appointment of Mr Chandrasekhara Aiyar as a member before he signed the award, and no notification effecting such an appointment under section 7 read with section 8 of the Act was identified. In view of these facts, the legal position was that Mr Chandrasekhara Aiyar had ceased to be a member of the Tribunal of three, that no legally constituted Tribunal of two existed, and that, having ceased to be a member of the original three-person Tribunal, he could not lawfully resume duties as a member without a fresh constitution of a new Tribunal of three. Consequently, all interim awards purportedly made by Mr Sen and Mr Mazurndar, as well as the final award signed by the three, were held to have been rendered without jurisdiction. The Court observed that the only correct remedy for the Government would have been to issue a notification in February 1950 establishing a new Tribunal of three members, rather than treating the vacancy as having been filled on 20 February 1950 under section 8, and then allowing the three members to rehear the matter afresh. Even assuming, for argument’s sake, that the respondents’ contention that Mr Chandrasekhara Aiyar had remained a continuous member of the Tribunal were accepted, the Court nonetheless upheld the appellants’ objection to the jurisdiction of the three persons to sign the award. Section 16, which authorises the signing of an award, is preceded by section 15; unless the requirements of section 15 were satisfied—that is, unless all three members had heard the matter together—the three could not lawfully exercise the power conferred by section 16.

The Court held that the three members of the Tribunal lacked authority to issue an award under section 18, and consequently they also had no power to sign the award pursuant to section 16. Accordingly, every award made by them was without jurisdiction. A suggestion was raised that the signature of one member could be treated as surplus; the Court simply rejected this contention. It was undisputed that Mr Chandrasekhara Aiyar actively participated in the deliberations and in the proceedings after 20 February 1950, and that his discussions naturally influenced the decisions of the other two members. This situation differed from one in which an external consultant is consulted and the Tribunal members then reach an independent conclusion. Rather, it was clear that all three members worked together in forming the award and bore joint responsibility for the result; therefore the argument that his signature was merely surplus could not succeed. In this respect, the final award presented to the Court was plainly without jurisdiction, and the appellants’ objection was upheld. The Court also rejected the final contention that the interim sittings constituted only an irregularity. An objection to the two-member sitting of the Tribunal had been raised, and the source of that objection—whether from the appellants or the opposite party—was immaterial because the objection had been overruled. Consequently, no doctrine of acquiescence or estoppel could arise, and consent could not confer jurisdiction on a body that lacked the essential jurisdictional condition. Neither acquiescence nor consent can grant a limited-jurisdiction court authority it does not possess. The Court observed that the joint responsibility of the three members to decide meant that if portions of the proceedings and discussions on general issues occurred in the presence of only two members, and the award was subsequently made by all three, the core jurisdiction of the Tribunal was called into question; this was not a mere procedural irregularity. The failure to satisfy a condition necessary to establish jurisdiction for making the award or decision stripped the award of any conclusive effect. The Court distinguished between the power to decide matters and the scope of matters a Tribunal with jurisdiction may hear. While in other situations issues of acquiescence or irregularity might be examined, in the present case the question centered on the Tribunal’s jurisdiction to make the award, and no amount of acquiescence or consent could alter that conclusion. Finally, it was argued that section 8 visualised a contingency wherein the Government might choose not to fill a vacancy; the Court noted this contention but did not accept it as a basis to validate the awards.

The provision in the statute also states that if a vacancy occurs, the Government may fill it by appointing a new man, and in such a case the proceedings need not be started afresh. It was submitted that nothing else had happened in the present matter and therefore the validity of the awards could not be questioned. The Court could not accept those submissions. First, when the Government decides not to fill a vacancy, that decision must be formally notified; it is not a matter of internal administration that allows officers to continue under departmental orders. Furthermore, when a member’s services cease and that fact is communicated to the remaining members under sections 5(4) and 6(3), the remaining members have no authority to function as a Tribunal at all. In the Court’s view, the language of sections 7 or 8 does not permit the surviving members of a Tribunal to assume a higher right in the absence of a proper new notification issued under the relevant provision of the Act.

Regarding the second contention, the Court noted that the statute gives the Government the option to make an appointment when a vacancy arises, and section 8 provides that if a new man is appointed the proceedings need not commence de novo. However, this option does not obligate the Government to fill every vacancy, nor does it require that the proceedings continue without a fresh start in every case. The choice appears to be left to the Government based on the stage of the proceedings. For example, if a vacancy occurs after only preliminary data-finding work, the Government may consider appointing a new man because starting anew may be unnecessary. Conversely, if the work has advanced substantially, the Government may deem it unfair to introduce a new member, as that would effectively split the Tribunal’s work into two phases—first with two members and later with three. These considerations underscore that the Government must decide definitively whether to fill a vacancy at the time it occurs; it cannot postpone the decision, proceed on the basis that the vacancy remains unfilled, and later reverse its stance after considerable work has been done, subsequently filling the vacancy months later. The Court reaffirmed the principle that the Tribunal’s quasi-judicial work is a joint responsibility of all its members, and that section 8 only provides limited exceptions, the limits of which were fixed by the Legislature and must be strictly observed.

The Court explained that once the legislature had defined the scope of the statutory exceptions in section eight, those limits must be observed rigorously. Neither the Tribunal nor the Government possessed the authority to broaden those exceptions beyond what the statute allowed. Consequently, the Court held that the circumstances surrounding the sittings and the work of the Banking Tribunal described earlier did not fall within any of the permitted exceptions. Because the Tribunal acted outside the statutory boundaries, the awards issued by the Tribunal were deemed to have been made without jurisdiction. Accordingly, the Court concluded that the awards signed by Messrs Sen and Mazumdar, as well as by all three members together, were invalid. The Court therefore accepted the appellants’ contention that the awards were non-jurisdictional.

The factual background began with a Government of India notification dated 13 June 1949, which established a Tribunal to adjudicate industrial disputes in banking companies. The Tribunal was initially composed of Mr K C Sen as Chairman, and Mr S P Varma and Mr Majumdar as members. Soon after, Mr Chandrasekhara Aiyar was appointed to replace Mr Varma when the latter’s services became unavailable. On the same day, 13 June 1949, the Government referred several disputes between banking companies and their employees to the Tribunal. The Tribunal, now consisting of the Chairman and two members, commenced hearings on 12 September 1949. In November 1949, Mr Aiyar was seconded to the Department of External Affairs and assigned to the Indo-Pakistan Boundary Disputes Tribunal, rendering him absent from the Banking Tribunal for nearly three months, from 23 November 1949 to 20 February 1950. During his absence, the Chairman and the remaining member continued the proceedings and issued a number of interim awards. Mr Aiyar returned to the Banking Tribunal on 20 February 1950, and subsequently, all three members together made and signed a final award on 31 July 1950, which was published in the Gazette of India on 12 August 1950. The primary issue raised on appeal was that this final award was without jurisdiction. Some appeals also challenged several interim awards dated 5 January, 25 January, 20 February and 22 February 1950, which had been rendered by the Chairman and Mr Majumdar in the matters of the Imperial Bank of India, Lloyds Bank and Punjab National Bank. The appellants argued that the Industrial Disputes Act 1947 did not authorize two members of a three-member Tribunal to decide the disputes, nor did it allow a member who had previously left the Tribunal to re-join and influence decisions on matters he had not heard. The Court noted these arguments but indicated that a detailed examination of the statutory provisions and the Tribunal’s procedural framework would be required to resolve the questions raised.

The argument that a member who had left the Tribunal should be allowed to re-join the hearing and affect the decision of the remaining members on matters he had not heard was put forward. While such a contention might seem plausible at first glance, especially when viewed through the lens of ordinary judicial procedure in courts, the Court found that, upon careful examination, the argument lacked substantial merit. This was because the Industrial Tribunal, although it possessed many formal characteristics of a court, was not a court of law and therefore was required to follow the specific procedures set out by the Industrial Disputes Act, 1947, and the rules made under that Act. The resolution of the issues raised depended principally on the proper construction of section 8(1) of the Act, which provides: “If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.” A key question in interpreting this provision was the exact meaning of the phrase “services cease to be available.” Ordinarily, the word “cease” suggests a permanent termination, thereby covering situations where a person’s services are permanently unavailable. However, the word can also denote a temporary interruption of a state or condition, as explained in the Oxford Dictionary. The Court referred to the case of The Queen v. Evans(1), where the phrase “cease to reside” was interpreted to include a period during which the individual was absent from England but later returned. Accordingly, the Court held that the expression “services cease to be available” encompassed both permanent and temporary unavailability, provided that during the period in question the services were wholly absent. This interpretation should be read in conjunction with the marginal note to section 8, which indicates that the provision was intended to address every circumstance that creates a vacancy. Vacancies may be either permanent or temporary; therefore, if a Tribunal member’s services were temporarily assigned to another Government department for special work, such a situation fell within the scope of the section. This interpretation was necessary because the nature of the duties assigned to a member could require his temporary removal from the Tribunal while he performed other responsibilities.

In the present case the member, Mr. Aiyar, completely separated himself from the Industrial Tribunal for the period during which he held a new office. The Court finds it difficult to accept the proposition that the statutory provision was intended to apply only to a permanent vacancy and that it made no allowance whatsoever for a temporary vacancy, a situation that is not rare. It is noteworthy that sections 5 and 6 of the Act deliberately employ the expression “vacancy in number,” a formulation broad enough to cover circumstances where a vacancy exists yet the membership does not cease. All parties agree that while Mr. Aiyar was serving as a member of the Indo-Pakistan Boundary Disputes Tribunal, his services were unavailable to the Industrial Tribunal. It is also undisputed that at the time his services were transferred, the length of his absence from the work of the Industrial Tribunal was unknown. Consequently, there can be no doubt that a vacancy arose, thereby giving the Government the occasion to exercise the discretion conferred on it by section 8 of the Act. At this point the Court finds it appropriate to reproduce the correspondence exchanged between the chairman of the Tribunal and the Government shortly after Mr. Aiyar’s departure. On 28 November 1949 the chairman sent an express telegram to the Labour Ministry stating that, in Mr. Aiyar’s absence, objections had been raised to the remaining two members continuing the proceedings and urging the Ministry either to appoint a substitute or to inform the Tribunal that it could proceed with two members during the absence. The Government’s reply, conveyed by telegram, stated: “Reference your telegram twenty-eighth. Government advised that rule twelve is inconsistent with section eight. Rule twelve being deleted through notification. Government advised Tribunal can continue proceedings with remaining two members. No formal order or notification necessary. Government may fill vacancy at a later date.” These two telegrams demonstrate that both the chairman and the Government regarded the situation as creating a vacancy within the meaning of section 8, that the section permitted the Government either to fill the vacancy or to leave it unfilled, and that the Tribunal’s proceedings could continue even if the vacancy remained. The Court finds the interpretation adopted by the chairman and the Government to be entirely correct. The matter before the Court therefore raises two questions: (1) whether section 8 applies to a temporary vacancy; and (2) whether, should the Government decide not to fill such a vacancy, the Tribunal may nevertheless continue its proceedings.

In this case, the Court examined whether the Tribunal could continue its proceedings when a member’s seat remained vacant because the Government chose not to fill it. The Court had already addressed the preliminary issue concerning the application of section 8 to a temporary vacancy and now turned to the second question. According to the language of section 8, the vacancy created by the removal of the chairman must be filled, whereas a vacancy created by the removal of a member may be filled at the Government’s discretion. From this provision, the Court inferred that the existence of a member’s vacancy, coupled with a governmental decision not to appoint a replacement, did not render the Tribunal improperly constituted. Consequently, the Tribunal was authorised to carry on its business despite the missing member. The appellants had argued that a member’s vacancy required the Government either to make an immediate appointment or to suspend the Tribunal’s work until such appointment occurred. The Court found these propositions unsupported by the wording of section 8. First, the statutory text expressly states that the Government may, but is not obligated to, appoint a new member; thus it could not be read as imposing a mandatory duty to appoint. Second, the provision contains no indication that the Tribunal’s work should be halted indefinitely in the circumstances before the Court.

The Court further noted that analogous legislation in other jurisdictions, such as section 3(b) of the National Labour Relations Act of the United States and section 3 of the Industrial Courts Act 1919 of England, generally rejects the suspension of adjudicative work in industrial disputes, emphasizing the need for speedy settlement. The Court held that the scheme of the Indian Industrial Disputes Act follows the same principle and that it would be alien to its purpose to permit an indefinite suspension of the Tribunal’s proceedings. Moreover, the Court observed that sections 5 and 6 of the Act, which govern Boards of Conciliation and Courts of Inquiry, explicitly provide that proceedings may continue despite a vacancy in the number of members, and that this principle is implied within section 8 with respect to Industrial Tribunals. The appellants had contended that, had the Legislature intended the Tribunal to continue its work despite a vacancy, it would have inserted an express clause in section 8 mirroring the language of sections 5 and 6. The Court rejected this argument, pointing out that sections 5 and 6 were reproduced verbatim from the Trade Disputes Act 1929, whereas section 8 was a newly drafted provision that employed its own language. Therefore, the absence of an identical clause in section 8 did not demonstrate legislative intent to suspend the Tribunal’s work.

In this matter the Court observed that section 8 of the Act was not taken from the earlier legislation but was a wholly new provision drafted in its own language. The drafter, the Court noted, had chosen to express the intended meaning in a concise form, thereby avoiding the repetition of the lengthy wording found in sections 5 and 6. Moreover, the Court held that, given the surrounding context of the provision, there was no basis for interpreting the legislator’s intention as a desire to suspend the work of the Tribunal when a vacancy occurred. The expression “the proceedings shall be continued before the Board, Court or Tribunal so reconstituted” was understood by the Court to refer to the situation that arises when a new chairman or a new member is appointed, and at the same time to indicate that the framers must have assumed that the Tribunal’s proceedings would carry on even if there were a vacancy in its membership and the Government chose not to fill that vacancy.

The Court then set out the factual position that had been reached. There existed a vacancy of indefinite duration, and the Government, exercising its lawful discretion, decided not to appoint a replacement for the time being, allowing the Tribunal to continue its work with the chairman and the remaining member. In the Court’s judgment, under those circumstances the Tribunal’s proceedings could not be said to be without jurisdiction. The Court then turned to the further question presented: what legal effect would arise from Mr Aiyar rejoining the Tribunal on 20 February 1950? The appellants contended that the entire award was invalid because Mr Aiyar had been brought onto the Tribunal at a late stage. Their argument was articulated as follows: the Government had originally appointed a Tribunal consisting of a certain number of members; assuming that, under section 8, a Tribunal of that number could become a Tribunal of two members, the appellants asked how the Tribunal could again become a Tribunal of three members without the Government strictly complying with the procedure laid down in the section and without making a fresh appointment. The same line of reasoning was presented more rhetorically by likening the Tribunal’s proceedings to a moving train and asking whether a person might “jump into and jump off” the train at will.

The Court admitted that it had considered the argument very carefully but found it lacking in force. In addressing the argument, the Court emphasized that the Legislature had granted the Government extensive powers, leaving both the constitution of the Tribunal and the appointment of its members to the Government’s discretion. Section 7(2) was cited as providing that the Tribunal shall consist of such number of members as the appropriate Government thinks fit. Likewise, section 8(1) was noted as stating that the Government may or may not appoint an additional member to fill a vacancy.

The judgment explained that section 9 of the Act makes any appointment order issued by the appropriate Government for a member of a Tribunal immune from legal challenge. Moreover, under section 38 the Government is authorised to frame rules to give effect to the Act, and nothing in the statute prevents the Government from enacting a rule that sets a minimum number of members required for the Tribunal to hear any matter. Consequently, the authority to both create and reshuffle the Tribunal rests with the Government. Although that power should not be exercised arbitrarily or unfairly, the statute does grant it. In light of this, the Court found that the substance of the matter, rather than mere technicalities, provided a clear answer to the appellants’ query. Specifically, if the entry and re-entry of Mr Aiyar into the Tribunal were carried out under Government orders, the proceedings could not be declared invalid. Having given this general answer, the Court then examined the issue more closely. It reiterated that section 8 expressly allows the Government to decide not to fill a vacancy at all. The Court identified two principal reasons that might motivate the Government to leave a vacancy unfilled: first, the belief that the chairman together with the remaining member(s) can continue the Tribunal’s work; and second, the view that a vacancy is only temporary and that a new appointment is unnecessary until the original member returns. The Court concluded that in the present case the second reason applied. Because the vacancy was temporary, Mr Aiyar had never formally ceased to be a member of the Tribunal and could resume his duties as soon as his obligations in the new office were finished.

Accordingly, the Government did not need to issue a fresh appointment order for Mr Aiyar; he remained a member and returned to the Tribunal by virtue of the Government’s direction. Describing him as an interloper or claiming that his return corrupted the proceedings would therefore be incorrect. The Court observed that there was no difficulty in accepting that Mr Aiyar rejoined the Tribunal under Government authority, and that the Government subsequently declared the award, in which he participated, to be binding pursuant to section 15 of the Act. He continued to draw his Tribunal salary from 20 February 1950 until the proceedings concluded. These facts led the Court to reject the argument that the award was void because of Mr Aiyar’s temporary absence, and to hold that the proceedings remained valid.

The Court observed that it would be overly abrupt to declare the entire proceedings void and to deem the award invalid. One argument presented to challenge the award’s validity was that, although Mr Aiyar did not take part in the hearings conducted during his absence, he could theoretically have influenced the decisions of the other members who did participate. The Court found no legal basis for this contention unless one allows preconceived ideas of strict judicial procedure, typical of a regular court, to dictate the analysis. A review of section 8(2) of the Act shows that the statute does not envisage a fresh hearing when the Government appoints a new member to replace one whose services are no longer available. The legislation permits a newly appointed member to join the Tribunal at any stage of the proceedings, and no party is heard to allege that a member who has not participated in earlier stages can sway the views of those who have already taken part. Consequently, the Court questioned how such an objection could be raised against Mr Aiyar, who was familiar with the proceedings and had taken part in them during earlier stages. Upon close examination of the facts, the Court concluded that nothing occurred in this case that could not have been lawfully carried out under section 8 of the Act. Even if it were assumed that the Government needed to make an appointment under sub-section (1) of section 8, the essential requirements of that provision appeared to have been substantially satisfied, because Mr Aiyar could not have joined the Tribunal without giving notice to the Government and without obtaining the requisite orders. There is no doubt that the Government allowed Mr Aiyar to join the Tribunal, and the Court saw no significant distinction between the Government directing a person to participate in the Tribunal’s work and formally appointing that person as a member. Once it is clearly understood that, under the Act, the Government is empowered not only to constitute the Tribunal but also to reconstitute it under certain circumstances, the problem presumed to arise from numerical changes in the Tribunal’s composition should not present any difficulty. The Court expressed that the answer to this issue lies within the four corners of section 8. If a vacancy arises under that section and the Government does not fill it, the Tribunal would logically become a body of two members. However, because the authority to fill the vacancy rests with the Government, the Tribunal may revert to a three-member body as soon as the vacancy is filled. The Court concluded its discussion by stating, “I think that the”.

The Court observed that the Government was free to take the time it deemed necessary to fill a vacancy in the Tribunal and could permit the Tribunal’s work to continue in the interim. It noted that such a delay might arise because a suitable replacement was not immediately available, or for other conceivable reasons. Nothing in the Act or in section 8, the Court found, imposed an obligation on the Government either to fill the vacancy promptly or to keep it permanently unfilled. To read a mandatory requirement into the provision would, in the Court’s view, place an undue restriction on the Government’s power, a restriction that neither the language of the provision nor the overall scheme of the Act warranted. The Court further held that the same section also covered situations where a vacancy was temporary and the Government chose to await the return of the former incumbent before appointing a new member.

The appellants contended that no formal notification had been issued at the appropriate time to evidence the Government’s decision. The Court, however, pointed out that a notification dated 20 May 1950 had indeed been issued, stating that after relinquishing his charge of membership of the Indo-Pakistan Boundary Dispute Tribunal, Sri N. Chandrasekhara Aiyar had resumed his duties as a member of the All India Industrial Tribunal (Bank Disputes) on 20 February 1950 (forenoon). The appellants argued that this ex-post-facto notification could not validate an alleged illegality already committed. The Court rejected that argument on three grounds. First, it found that no illegality had been committed. Second, the Act did not require any specific notification for the vacancy to be filled. Third, the characterization of the notification as ex-post-facto was inaccurate because the Tribunal’s proceedings had not terminated; they were still ongoing. Consequently, the Government was at liberty to issue the notification in its own time, and the Court could not conclude that the Government had acted in bad faith in doing so.

Emphasising that Mr Aiyar had joined the Tribunal with the Government’s concurrence, that the Government intended his continued participation, and that he had been paid his salary on that basis, the Court held that these facts satisfied the requirements of the Act. It expressed difficulty in accepting how the absence of a formal order or a delay in the notification could have such a far-reaching effect on the Tribunal’s proceedings as to render the entire award void for lack of jurisdiction. The Court characterized the objections raised by the appellants as unsubstantial and, in the absence of any cogent or compelling reason, declined to hold that the work undertaken by the Tribunal after nearly a year of deliberations and extensive travel across the country should be set aside.

In that case the Court observed that the extensive travel undertaken across the nation at a considerable expense to the public treasury represented a substantial waste of both money and labour. During the proceedings the parties requested that section 8 be read together with sections 7 and 16. The Court found no language in any of those sections that contradicted the view it had already expressed. It further held that the requirement of section 16, which states that the Tribunal’s report must be signed by all members of the Tribunal, does not obligate members who did not participate in the proceedings to sign the report. Rather, the provision requires that the award be signed only by those members who actually took part in the proceedings or who could have taken part under the Act. The Court emphasized that this rule is general and applies to awards made by Tribunals, Boards and Courts alike, and it must be read in conjunction with sections 5 and 6. Those sections provide that a Board or Court meeting the prescribed quorum may continue to act even if the chairman, any member, or a vacancy is present. The Court acknowledged that both the Tribunal and the Government might have exercised greater care in this particular case to avoid the criticisms aimed at the Tribunal’s process, but it concluded that there was no sufficient basis to declare the proceedings void for lack of jurisdiction. The arguments also cited Rules 5 and 12, framed by the Government under section 38 of the Act. Rule 5 provides that the appointment of a Board, Court or Tribunal, together with the names of its members, shall be notified in the official Gazette. Rule 12, which was in force until 5 December 1950, permits a Tribunal consisting of two or more members to proceed despite any casual vacancy, provided the parties consent, and declares that no act, proceeding or determination of the Tribunal shall be questioned or invalidated on account of such a vacancy. The Court held that these rules did not bear on the matter in dispute. It explained that Rule 5 concerns the initial constitution of a Board, Court or Tribunal and the requirement to publish a Gazette notification of the members at that stage, a step that had been complied with in the present case as evident from the award itself. Rule 5 does not address the appointments made under section 8 to fill vacancies. The Court anticipated that, as a matter of practice, the Government might issue a notification concerning appointments made under section 8, but such a notification would not fall under Rule 5, and section 8 itself does not expressly mandate any notification. Nor is a notification required under section 8 when the Government decides not to fill a vacancy.

The Court observed that there was no requirement under section 8 for a notification when the Government chose not to fill a vacancy, and that the simple occurrence of the term “reconstituted” in section 8 did not, in its view, compel the application of rule 5. The Court then turned to rule 12, which had been operative until 5 December 1950, and explained that rule 12 concerned a casual vacancy. Under that rule, when such a vacancy arose, the Tribunal was permitted to continue its proceedings provided that the parties consented. The Court emphasized that rule 12 dealt exclusively with casual vacancies and did not address a vacancy arising from the departure or death of a chairman or a member, matters that were governed by section 8. At first glance, one might infer that if party consent was required to proceed in the event of a casual vacancy, the same consent might be necessary to continue proceedings under section 8 when no replacement had been appointed. The Court rejected this inference, stating that rule 12 did not support such a conclusion. According to the Court, rule 12 allowed the proceedings to go on without any notification to the Government, whereas a vacancy that fell under section 8 was a matter that came within the exclusive jurisdiction of the Government; the Government’s action, whether to appoint a replacement or to leave the position vacant, alone gave legal validity to the continued proceedings, and no consent of the parties was required. Nonetheless, the Court recognised that rule 12 assisted the respondents’ arguments in two respects. First, it demonstrated that a “vacancy” for the purposes of Tribunal proceedings could be a temporary, casual vacancy and need not always be a permanent absence, contrary to the appellants’ suggestion. Second, and more importantly, rule 12 underscored that a vacancy did not diminish the jurisdiction of the remaining members to proceed, because established law holds that consent can remedy a procedural irregularity but cannot confer jurisdiction over the subject-matter. The Court noted that some counsel had claimed rule 12 to be ultra vires, but it deemed an examination of that point unnecessary. Having set out its reasoning, the Court respectfully disagreed with the conclusion reached by the Chief Justice and the majority of the other judges, and held that the objections raised on behalf of the appellants must be overruled. Justice Patanjali Sastri then expressed agreement with the reasoning and conclusion of Justice Fazl Ali, stating that the latter had articulated what the former wished to say and that there was nothing further to add. Justice Mukherjea also concurred with Justice Fazl Ali’s decision that the award of the All India Industrial Tribunal (Bank Disputes) dated 31 July 1950 could not be declared illegal or inoperative on the basis of any lack of jurisdiction of the Tribunal, although he noted that his own line of reasoning differed from that of his fellow judge.

Because he could not agree with the earlier judge on the validity of certain awards that the Tribunal purported to make in January and February 1950, he found it necessary and proper to set out his own views on the controversy presented in these appeals. He chose to do so succinctly and in a separate judgment. The only issue that had been raised before the Court at this stage of the hearing concerned the question of jurisdiction. The learned counsel for the several banks argued that the awards were illegal because they had been issued by a Tribunal that was not properly constituted and therefore not competent to adjudicate industrial disputes under the Industrial Disputes Act. In order to understand the arguments presented by the parties on this point, the Court found it essential to recount a few relevant facts.

By a notification dated 13 June 1949, the Central Government, exercising the powers granted to it by section 7 of the Industrial Disputes Act, 1947, constituted an Industrial Tribunal composed of three members: Mr K.C. Sen, who was appointed chairman, Mr S.P. Verma, and Mr J.N. Mazumdar. A further notification issued on 24 August 1949 appointed Mr N. Chandrasekhara Aiyar as a member of the Tribunal, replacing Mr S.P. Verma whose services had ceased to be available. The reconstituted body was designated “The All India Industrial Tribunal (Bank Disputes).” This Tribunal, comprising the chairman and the two members, began its sittings at Bombay on 12 September 1949 and continued to sit in that composition at Bombay and various other locations thereafter.

From the afternoon of 23 September 1949, Mr Aiyar’s services were temporarily assigned to the Ministry of External Affairs, as he was appointed a member of the Indo-Pakistan Boundary Tribunal. His work with that body concluded on 27 January 1950. A government notification showed that he was on leave from 28 January 1950 until 19 February 1950, and he resumed his duties as a member of the Industrial Tribunal on 20 February 1950. During his absence, the two remaining members continued to hold several sittings of the Industrial Tribunal, and a number of awards were made and signed by those two members concerning various disputes involving certain banks.

It was also relevant to note that, under the powers conferred by section 38 of the Industrial Disputes Act, the Central Government framed certain rules that came into force on 3 December 1949. Under those rules, the Tribunal constituted by the 13 June 1949 notification was authorised to entrust cases or matters referred to it, as it deemed fit, to one or more members for enquiry and report. The Court therefore set out these factual foundations before addressing the jurisdictional question raised by the banks.

The Tribunal was authorised to assign any case or matter referred to it, as it deemed appropriate, to one or more members for enquiry and reporting. When a matter was so assigned, the enquiring member was required to place his report before the chairman of the Tribunal. After the chairman considered the report and, if necessary, conducted further enquiry, the Tribunal could then deliver its award. Acting under these rules, a large number of pending matters were distributed among the members for enquiry and reporting, and the members began sitting separately at different locations from 3 December 1949. After Mr Aiyar re-joined the Tribunal, the proceedings continued in the same manner as before. The hearing of the general issues, which had started in Bombay, was concluded on 3 April 1950. Subsequently, the Tribunal prepared and signed the principal award in July 1950, and this award was published in the Extraordinary Gazette of India on 12 August 1950.

The appellants, representing the banks, argued that once Mr Aiyar became unavailable because of his appointment to the Indo-Pakistan Boundary Tribunal, the remaining two members could not, under law, constitute a valid Industrial Tribunal without reconstituting it in the manner prescribed by the Industrial Disputes Act. They contended that the proceedings that took place after 23 November 1949 were therefore void and inoperative, and that Mr Aiyar’s later re-joining did not cure the vacancy, because a fresh appointment and fresh constitution of the Tribunal were required by law. Accordingly, they sought a declaration that the award dated 31 July 1950, as well as earlier awards, were void and inoperative. The respondents, the employees, and the Attorney-General appearing for the Central Government as intervenor, raised a series of contrary arguments. Although their grounds were not entirely uniform, all were advanced to support the position that the two remaining members were still legally competent to continue as a Tribunal under the scheme of the Industrial Disputes Act, 1947, even in the absence of Mr Aiyar. It was further submitted that there was nothing irregular about Mr Aiyar later taking part in the Tribunal and signing the award on 31 July 1949. The Court indicated that these arguments would be examined in detail. For clarity, it first referred to the relevant provisions of the Industrial Disputes Act, 1947, which relate to the questions presented, noting that the preamble states the object of the Act is “to make provisions for investigation and settlement of industrial disputes and for…”.

The Act provides for three distinct classes of authorities that are entrusted with the powers and duties of investigating and settling industrial disputes. The first class consists of Conciliation Officers or Boards of Conciliation, whose principal function is to encourage the parties to reach a fair and amicable settlement of their disputes. The second class comprises Courts of Enquiry; although they are described as courts, their role is limited to investigating the matters assigned to them and submitting reports to the appropriate Government. The third class includes Industrial Tribunals, which are formed by independent persons who are either currently or formerly High Court Judges or District Judges, or who are otherwise qualified to be appointed as High Court Judges.

Section 5 of the Act, in sub-section (2), sets out the constitution of a Board of Conciliation. A Board must contain a chairman and either two or four additional members, as determined by the appropriate Government. Sub-section (8) specifies that the chairman must be an independent person, while the members are to be appointed in equal numbers by the parties to the dispute. Sub-section (4) contains a crucial provision allowing a Board to continue its work despite the absence of the chairman or any member, provided that the Board meets the quorum prescribed in the rules. However, if the Government notifies the Board that the services of the chairman or any member have ceased to be available, the Board is prohibited from acting until a new chairman or member is appointed, as the case may be.

Section 6 deals with Courts of Enquiry. A Court may consist of a single independent person or of any number of independent persons that the appropriate Government deems appropriate. When a Court of Enquiry has two or more members, one of them must be appointed as chairman. Similar to a Board of Conciliation, the Court may function in the absence of the chairman or any member, or in the event of a vacancy, so long as it satisfies the prescribed quorum. Nevertheless, the Court cannot function if the Government notifies it that the chairman’s services have ceased, until a new chairman is appointed. Unlike the Board of Conciliation, Section 6 contains no provision for a Government notification when a member’s services cease.

Section 7 governs Industrial Tribunals. Sub-section (1) empowers the appropriate Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the Act. Sub-section (2) provides that a Tribunal shall consist of as many members as the appropriate Government thinks fit. When a Tribunal is composed of two or more members, one of those members must be appointed as chairman.

In this case the Court observed that when an Industrial Tribunal consists of more than one member, one of those members must be appointed as chairman. The Court noted that section 7 of the Industrial Disputes Act does not contain any provision comparable to those found in sections 5 and 6 that would allow a Tribunal to keep functioning if the chairman or any member is absent, provided a quorum exists; moreover, the rules that govern Industrial Tribunals do not define any quorum at all. From the language of section 7, and noting that this interpretation was not contested by the counsel appearing for certain employees, the Court concluded that when a Tribunal is constituted with three members, as it is here, all three members are required to act together unless another provision of the Act creates an exception. The respondents, however, placed great emphasis on section 8 of the same Act. They argued that, given the circumstances of the present dispute, section 8 gives the two remaining members clear authority to continue as a legally constituted Tribunal during the period when the services of Mr Aiyar were no longer available, even though no new appointment had been made to replace him and the Tribunal had not been freshly constituted. The Court then set out the exact wording of section 8: “(1) If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted. (2) Where a Court or Tribunal consists of one person only and his services cease to be available, the appropriate Government shall appoint another independent person in his place, and the proceedings shall be continued before the person so appointed. (3) Where the services of any member of a Board other than the chairman have ceased to be available, the appropriate Government shall appoint in the manner specified in sub-section (3) of section 5 another person to take his place, and the proceedings shall be continued before the Board so reconstituted.” The Court explained that the purpose of this section is to provide for the filling of vacancies. It observed that sub-section (2) does not bear on the present matter. By reading sub-sections (1) and (3) together, the Court held that whenever the services of the chairman of a Board, a Court or a Tribunal cease, it is incumbent upon the appropriate Government to fill that vacancy by appointing another independent person as chairman, after which the proceedings may continue before the reconstituted authority without the need to start the proceedings anew.

In the situation where the services of a member of either a Court or a Tribunal cease to be available, the law grants the appropriate Government a discretion to either fill the vacancy or to leave it unfilled, according to its judgment. If the Government elects to appoint a new member in place of the former, the same statutory provision that applies to the appointment of a new chairman will also govern that appointment. The statute, however, does not contain any explicit language indicating the consequence if the Government decides that it is not appropriate to appoint a replacement. By contrast, a distinct rule applies to a Board of Conciliation. When a vacancy arises on such a Board, the statute requires a re-appointment in accordance with subsection (a) of section 5. The reason for this requirement is clear: a Board of Conciliation must maintain equal representation of the two parties to the dispute, and the balance would be disturbed if a vacant seat were left unfilled. In the case presently before the Court, one of the members of the Tribunal, identified as Mr Aiyar, was acknowledged to have been absent for a period exceeding three months because he had been assigned duties in another capacity, rendering his services unavailable during that time. The remaining two members brought this fact to the attention of the appropriate Government, but the Government resolved not to make a new appointment to replace Mr Aiyar. The legal effect of that decision on the status of the two remaining members therefore became the central question. Could those two individuals continue to operate as a Tribunal in the absence of the third member, without the Government formally reconstituting the Tribunal as a two-member body? The respondents contended that, since section 8 of the Industrial Disputes Act provides the Government with an option either to fill the vacancy or to leave it vacant, and since the statute speaks of reconstitution only in the event that a new member is appointed, the implication of the provision is that if the Government declines to appoint a replacement, the remaining members automatically constitute the Tribunal and may lawfully proceed with their functions. They further argued that Industrial Tribunals are essentially administrative bodies created to resolve industrial disputes swiftly and to promote industrial peace; consequently, a degree of procedural flexibility must be permitted, as reflected in various provisions of the Act. Imposing the ordinary rules of law and procedure on such tribunals, they suggested, would frustrate the very purpose of the legislation. Moreover, they submitted that section 7(1) envisions the constitution of a Tribunal irrespective of its size, indicating that the number of members may vary without requiring a fresh constitution of the Tribunal.

It was observed that the number of persons who may sit on an Industrial Tribunal for the purpose of adjudicating industrial disputes is a matter that may be fixed by the appropriate Government at any time and in any manner it deems suitable. Consequently, a change in the size of the Tribunal does not give rise to a requirement for a fresh constitution of the body. Section 8(1) of the Industrial Disputes Act becomes operative whenever the services of the Chairman of the Tribunal or of any of its members cease to be available. Such unavailability may be either permanent or temporary and may arise from any cause or circumstance. When the services of a member are no longer available, the Government must decide whether to fill the vacancy. If the Government elects to appoint a new member, the Tribunal is to be considered reconstituted within the meaning of section 8. The purpose of this provision is to ensure that the proceedings before the Tribunal may continue from the point at which they were left, without the necessity of restarting the proceedings. Hence, the language of section 8 contemplates reconstitution only on the basis of appointing a replacement for the member whose services have ceased.

The respondents urged that, because section 8 does not expressly provide for reconstitution of the Tribunal when no new member is appointed, the remaining members should be deemed to continue exercising the functions of the Tribunal without any further order or notification by the Government. Although this argument appears plausible initially, a careful examination of the material provisions of the Act reveals serious difficulties in accepting it. A clear distinction exists between the provisions of sections 5 and 6, which empower a Board of Conciliation or a Court of Enquiry to proceed in the absence of members provided that a prescribed quorum is present, and the provisions of section 7, which contain no such quorum requirement for a Tribunal. It cannot be argued that a Tribunal may operate without a quorum merely because it may consist of a single member; the Act and the rules do not prescribe a quorum for a Tribunal, unlike the situation with a Court of Enquiry where a specific quorum is defined.

The Court observed that a specific rule exists prescribing a quorum for the members of a Court. It noted that the wording of section 7 of the Industrial Disputes Act clearly indicates that the members of a Tribunal are required to act together as a whole. In the Court’s view, if the legislature had intended to create an exception to this requirement, it would have expressed that intention in unmistakable terms rather than allowing the exception to be inferred from another provision that is itself not expressed in clear language. The Court explained that an Industrial Tribunal may be constituted only in accordance with the provisions of section 7 of the Industrial Disputes Act, and that a Tribunal which has not been properly constituted lacks the authority to adjudicate industrial disputes.

According to the Court, sub-section (2) of section 7 mandates that the appropriate Government determine the number of members who shall constitute the Tribunal, and that this determination forms an integral part of the Tribunal itself. Consequently, any alteration in the number of members of a Tribunal can be effected only pursuant to the authority conferred by sub-section (2) of section 7. The Court further pointed out that section 8 does not provide that, when the services of a Tribunal member become unavailable and the Government decides not to appoint a replacement, the remaining members may continue to constitute the Tribunal. In the Court’s opinion, the constitution or re-constitution of the remaining members as a Tribunal must be carried out exclusively under the authority of section 7 of the Act.

The Court expressed that it was not persuaded by the argument advanced by counsel that a Tribunal should be viewed as an entity distinct from the individuals who compose it, and that changes in the composition of the Tribunal would not affect its identity. It drew a parallel with the distinction that exists between a court and the judge who presides over it, noting that if a court is required by law to be composed of a certain number of judges, a smaller number of judges cannot perform the full functions of that court.

The Court also considered the submission that the purpose of the Industrial Disputes Act is to ensure speedy and swift resolution of industrial disputes, as reflected in section 15, which directs that a Tribunal must conduct its proceedings expeditiously and, as soon as practicable, submit its award to the appropriate Government upon conclusion. It acknowledged the contention that strict application of ordinary legal rules to Tribunal proceedings might hinder this objective. While agreeing that a quasi-judicial Tribunal enjoys greater flexibility and is less bound by the rigid procedural rules that govern ordinary courts, the Court emphasized that, notwithstanding the desire for informality and speed, it is absolutely essential that a Tribunal be properly constituted in accordance with the statutory requirements before it may function.

The Court observed that a tribunal must satisfy all legal requirements before it may lawfully operate. It expressed no understanding of how issuing a formal notification under section 7 of the Industrial Disputes Act could delay the tribunal’s proceedings or impede a swift settlement of the disputes. Section 16 of the Act imposes a mandatory rule that the award of a tribunal must be in writing and must bear the signatures of all the members. The Court held that, provided the original notification establishing the tribunal has not been altered, the phrase “all the members” refers strictly to those individuals whose names appear in that notification, and that an award lacking the signatures of each of those members cannot be considered a valid or operative award under law.

The Court’s attention was drawn, during argument, to rule 12 of the rules framed by the Central Government under the powers conferred by section 38 of the Industrial Disputes Act. It noted that this rule had been deleted with effect from 6 December 1949. The rule, as originally worded, stated: “Where a Tribunal consists of two or more members the Tribunal may with the consent of the parties act notwithstanding any casual vacancy in its number and no act, proceeding or determination of the Tribunal shall be called in question or invalidated by reason of any such vacancy.” Counsel for the appellants contended that the rule was ultra vires of the authority that enacted it, but the Court found it unnecessary to examine that contention for the purposes of the present case. Assuming, for argument’s sake, that the rule was valid, the Court observed that it offered no assistance to the respondents, because there was no evidence that, during the absence of Mr Chandrasekhara Aiyar, the remaining two members continued the proceedings with the consent of both parties. Moreover, the Court noted that the provision in the rule directly contradicted the broad argument that the respondents sought to advance on the language of section 8.

In the Court’s view, since the appropriate Government had not issued a notification under section 7 of the Industrial Disputes Act to constitute a tribunal consisting solely of the two remaining members during Mr Aiyar’s absence, the proceedings before those two members were void and inoperative. Consequently, any award that was made and signed by only those two members during that period must be held to be void. However, the Court declined to hold that the tribunal as a whole was improperly constituted or that it lacked jurisdiction to perform its functions once Mr Aiyar resumed his duties on 20 February 1950. The Court reiterated that the essential requirement for the proper constitution of an industrial tribunal is a notification or order issued by the appropriate Government under section 7, and that the number and names of the members specified in that notification form an indispensable part of the tribunal’s authority.

The judgment explained that when the services of one of the members of an Industrial Tribunal ceased, as contemplated by section 8, the appropriate Government faced two possible courses of action. It could either issue a fresh notification under section 7 to constitute a Tribunal with the remaining members or in any other manner it deemed appropriate, or it could refrain from any further step and allow the original notification to remain in force. The Government was presumed to adopt the latter alternative only when it considered the vacancy to be short-lived and unlikely to persist for an extended period. In such a circumstance, the remaining members could not function as a Tribunal, and all proceedings before them had to remain in abeyance until the absent member resumed his duties. The judgment found no reason to require a fresh notification or a new constitution of the Tribunal when the absent member returned, because the original notification remained unaltered and was not affected by any subsequent notification. By virtue of that original notification, the three members were competent to sit as a Tribunal and to discharge its functions. The temporary unavailability of one member did not render the original notification null and void; the only effect of the absence was that the remaining members lacked the authority to continue the proceedings, a disability that ceased as soon as the absent member became available again, thereby restoring the Tribunal to full functionality. The appellant’s contention that a vacancy rendered the Tribunal imperfectly constituted and necessitated a fresh constitution was held to be unsound. The judgment reiterated that a member’s non-availability might be permanent or merely temporary and could arise from various causes. The term “vacancy” had no technical definition; as indicated by the Oxford Dictionary, it ordinarily signified a temporary freedom or cessation from a business or occupation. Consequently, if the vacancy was only temporary, it signified merely an interval during which the office remained unoccupied. A fresh appointment would be considered only if the vacancy were actually filled; however, in the present case the vacancy was not filled and therefore automatically terminated when the absent member returned to his office. While it might be desirable in the public interest to issue a notice or announcement of the member’s resumption of duties, the judgment held that no reconstitution of the Tribunal with the same members was required or necessary under the provisions of the Industrial Disputes Act.

The Court observed that while it might be appropriate to issue a notice or make an announcement concerning the return to work of a member who had been absent, there was no requirement under the Industrial Disputes Act to reconstitute the Tribunal with the same members. The Court noted that situations could arise in which a member’s services were unavailable because of death, lunacy, or a similar circumstance, and in such cases the member could not return to his office. It was further explained that, according to section 16 of the Industrial Disputes Act, an award could not be valid unless every member named in the notification signed the award; consequently, a death, lunacy, or any other permanent disability would make it impossible for the award to be validly signed. The Court then turned to the factual record concerning Shri N. Chandrasekhara Aiyar. It pointed out that Government Notification No. LR 60 (47) dated 20 March 1950 expressly stated that Shri Aiyar’s services as a Member of the All India Industrial Tribunal (Bank Disputes) were temporarily assigned to the Ministry of External Affairs with effect from the afternoon of 23 November 1949. His duties in that Ministry continued until 27 January 1950. Upon completion of those duties, he was deemed to have returned to his position on the Tribunal, and the Ministry of Labour granted him leave in that capacity from 28 January 1950 to 19 February 1950, as recorded in Notification No. LR 60 (73) dated 16 September 1950. Subsequently, another Government notification, No. LR 60 (47) dated 29 May 1950, declared that Shri Aiyar resumed charge of his duties as a member of the All India Industrial Tribunal on the forenoon of 20 February 1950. The Court acknowledged that these notifications were issued after the date on which Mr Aiyar actually resumed his duties; however, because they were not issued under section 7 of the Industrial Disputes Act, they could not be considered a condition precedent to conferring jurisdiction on the Tribunal. Therefore, the delay in publishing the notices was held to be immaterial, serving only to illustrate the actual state of affairs. In the Court’s view, the Tribunal became a properly constituted authority as of 20 February 1950, and because the award dated 31 July 1950 bore the signatures of all three members appointed under the notification of 24 August 1949, no legal objection could be sustained that the award was rendered without jurisdiction. The Court noted, however, that a question could be raised concerning the commencement of the hearing of general issues while Mr Aiyar was absent, which meant he was not present throughout the proceedings when arguments from both sides were advanced, potentially giving rise to an alleged procedural irregularity that might affect the validity of the award. A decision

The point raised would require investigation of several matters that have not been submitted to the Court at this stage by the learned counsel appearing for the appellant banks; consequently the Court will refrain from expressing any opinion on that issue. Accordingly, the Court will not pass any order on that aspect at this time. The Court concludes that the award dated 31 July is not void on the ground of lack of jurisdiction of the Tribunal that rendered it. However, the Court is of the view that the other awards that were passed while Mr Chandrasekhara Aiyar was absent, or that were not signed by him, must be considered as having been made without jurisdiction and therefore are declared void. The agents for the parties are recorded as follows: the agents for the appellants in Civil Appeals numbered 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 49 are Rajender Narain; the agents for the appellants in Civil Appeals numbered 48 and 50 are Ranbir Sawhney; the agent for the appellant in Civil Appeal number 47 is Ganpat Rai; the agent for the respondents is Naunit Lal; and the agent for the intervenor is P. A. Mehta.