Jaswant Sugar Mills Ltd., Meerut vs Lakshmichand And Others

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

Court: supreme-court

Case Number: Civil Appeal Nos. 37 and 38 of 1961

Decision Date: 25 September 1962

Coram: J.C. Shah, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In this matter the Court recorded that the case was Jaswant Sugar Mills Ltd., Meerut versus Lakshmichand and others, decided on 25 September 1962, and that the judgment was authored by Justice J. C. Shah, with a bench that also included Justices Bhuvneshwar P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo and K. C. Das Gupta. The reported citation is 1963 AIR 677 and the case also appears in the Supreme Court Reports Supplement 1 at page 242, together with several later citations.

The factual background disclosed that the workmen of the appellant company resorted to direct action in order to obtain their demands for bonus, leave and related benefits. In response, the company served charge‑sheets on sixty‑three workmen, alleging participation in sabotage and a slowdown strike. An enquiry officer investigated the charges and concluded that all of the workmen were guilty of sabotage and a go‑slow strike, and therefore were liable to dismissal.

However, at the time of the enquiry a dispute concerning the payment of bonus was pending before the Industrial Tribunal. Consequently, under clause 29 of the order dated 1954 issued by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947, the company could not alter the service conditions of the workmen nor dismiss them without first obtaining permission from the Conciliation Officer.

The company therefore filed an application with the Conciliation Officer seeking permission to dismiss the workmen. The Conciliation Officer granted permission to dismiss only eleven of the workmen, holding that the remaining workmen were merely passive participants in the go‑slow campaign and therefore could not be dismissed at that stage.

Unsatisfied with the limited permission, the company appealed to the Labour Appellate Tribunal. The Tribunal dismissed the appeal as incompetent, stating that the Conciliation Officer did not constitute an “authority” within the meaning of section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950.

The appellant then obtained special leave to appeal to the Supreme Court, challenging both the direction given by the Conciliation Officer and the order of the Labour Appellate Tribunal. The Court examined the nature of the Conciliation Officer’s powers under clause 29 of the 1954 order and observed that, although the Officer must act judicially in granting or refusing permission to alter employment terms, he does not possess the judicial power of the State.

Because the Conciliation Officer lacked the judicial authority of a tribunal, the Court held that he could not be regarded as a tribunal within the meaning of Article 136 of the Constitution of India. Accordingly, an appeal under that article against the Officer’s direction was not competent.

Further, the Court explained that an “authority” under section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950 must be a body constituted for the purpose of adjudicating industrial disputes under a law made by the State. Since a Conciliation Officer is not vested with adjudicatory power, he cannot be considered such an authority. As a result, an appeal against the order of the Conciliation Officer is not maintainable under section 4 of the Industrial Disputes (Appellate Tribunal) Act, 1950.

In its decision the Court held that an appeal could not be entertained against a direction issued by the Conciliation Officer under clause 29 of the Order promulgated in 1954 under the Uttar Pradesh Industrial Disputes Act, 1947. The Court relied on several earlier decisions, namely Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., [1950] S.C.R. 459; Province of Bombay v. K. S. Advani, [1950] S.C.R. 621; Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union, [1953] S.C.R. 780; and Durga Shankar Mehta v. Thakur Raghuraj Singh, [1955] 1 S.C.R. 267. The Court further explained that, for a body to be regarded as an “authority” under section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950, it must be a tribunal constituted specifically for the adjudication of industrial disputes under a law made by the State. Because a Conciliation Officer does not possess adjudicatory power and is not invested with the judicial authority of the State, he cannot be classified as an “authority” within the meaning of that provision. Consequently, an appeal against the order of the Conciliation Officer could not be maintained under section 4 of the Industrial Disputes (Appellate Tribunal) Act, 1950. The Court also referred to Sassoon & Alliance Silk Mills Co. Ltd. v. Mill Mazdoor Sabha, [1955] 1 L.L.J. 70, in support of this conclusion. The judgment was delivered in the civil appellate jurisdiction concerning Civil Appeal Nos. 37 and 38 of 1961, which were special leave appeals from judgments dated 9 July 1956 and 9 May 1956 rendered by the Labour Appellate Tribunal, Lucknow, and the Additional Regional Conciliation Officer, Meerut, respectively. The parties were represented by counsel for the appellants and respondents, and the judgment was pronounced on 25 September 1962 by Justice Shah. Two preliminary questions were identified: first, whether an appeal could be entertained under article 136 of the Constitution against a direction of the Conciliation Officer; and second, whether an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1950 against that direction. The Court noted that the merits of the appeal would have to be examined only if either of these preliminary questions were answered affirmatively. The factual background relevant to these questions was summarized as follows: Jaswant Sugar Mills Ltd., referred to as “the Company,” owned sugar and straw‑board factories at Meerut, Uttar Pradesh. On 13 December 1955 the Company received a notice from the Action Committee of one of the labour unions representing its workers, demanding payment of bonuses, leave, retaining allowance and other benefits. The Company stated that on 26 December 1955 a meeting of the workers was held in which certain employees urged the workforce to take “direct action,” leading the workers to adopt a “slow‑down strike.”

In the course of events, the workmen were urged by certain employees to undertake what was described as “direct action,” and they consequently adopted a “slow‑down strike.” This industrial action led to a substantial reduction in the crushing of sugarcane and in the overall production of sugar at the Company’s factory. In response, the Company issued charge‑sheets against sixty‑three workmen, alleging that each of them, either individually or collectively, had committed acts intended to damage the factory’s machinery and had deliberately pursued a “go‑slow” policy while also refusing to attend work at the times assigned to them. The Enquiry Officer, who examined the charges, issued an order dated 9 January 1958 finding that all of the workmen were guilty of “sabotage and slowdown strike” and, on that basis, concluded that they were liable to dismissal.

At the time these findings were rendered, a separate dispute concerning the payment of bonus was pending before the Uttar Pradesh State Industrial Tribunal, a matter in which both the Company and the workmen were parties. Because of clause 29 of the Order issued in 1954 by the Governor of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947, the conditions of service of the workmen could not be altered, and the workmen could not be dismissed without first obtaining permission from the Conciliation Officer. Accordingly, the Company filed an application with the Regional Conciliation Officer in Meerut seeking authority to dismiss the workmen who, according to the Enquiry Officer, had engaged in the slow‑down strike and other illegal tactics designed to cause loss to the Company.

The Conciliation Officer granted permission to dismiss only eleven of the workmen. He held that the remaining fifty‑two were merely passive participants in the go‑slow campaign and that it would not be “fair and justifiable” to dismiss those individuals from service. Dissatisfied with this limited permission, the Company appealed the Conciliation Officer’s decision to the Labour Appellate Tribunal at Lucknow, challenging the refusal to allow dismissal of the fifty‑two workmen. The Tribunal rejected the appeal, reasoning that the Conciliation Officer did not constitute an “authority” as defined by section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950, and therefore the appeal was legally incompetent.

Subsequently, the Company, having obtained special leave, filed appeals against both the Conciliation Officer’s original direction and the Tribunal’s order. The Company contended that the Conciliation Officer’s refusal to grant permission to dismiss the fifty‑two workmen disregarded principles previously established by this Court and by the Labour Appellate Tribunal in cases involving applications for permission to terminate employment under section 33 of the Industrial Disputes Act, 1947. In the appeal challenging the Tribunal’s order, the Company submitted that the Conciliation Officer was indeed an “authority” within the meaning of section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950 and that the direction issued by the Officer qualified as a “decision” under section 4 of that Act. Counsel for the workmen argued that the appeal against

The Court observed that the direction issued by the Conciliation Officer could not be maintained because the Officer, while exercising powers granted under clause twenty‑nine of the 1954 Order made under the Uttar Pradesh Industrial Disputes Act, 1947, does not qualify as a “court” or a “tribunal” within the meaning of Article 136 of the Constitution, and consequently no appeal lies to this Court against the impugned direction. The Court then referred to the text of Article 136(1) of the Constitution, which states that, notwithstanding any other provision, the Supreme Court may, at its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal within the territory of India. By contrast, clause two of the same article excludes from its operation judgments, determinations, sentences and orders passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. The Court affirmed that it possesses jurisdiction to entertain appeals from judgments, decrees, determinations, sentences or orders issued by courts and tribunals, except where such bodies are created under an Armed Forces law. The Court further noted that it is a matter of common ground that a Conciliation Officer, exercising authority under clause twenty‑nine of the Order made under the Uttar Pradesh Industrial Disputes Act, 1947, is not a “court”, and that the direction challenged does not amount to a judgment or decree.

In order to decide whether an appeal is still permissible against the Conciliation Officer’s direction, the Court identified two principal questions. First, the Court must determine whether the direction constitutes a “determination” or an “order”. Second, the Court must decide whether the Conciliation Officer can be regarded as a “tribunal” within the meaning of the applicable Act. While detailed reference to the provisions of the Uttar Pradesh Industrial Disputes Act and the various Orders issued thereunder will be made later, the Court noted at this stage that the Order issued by the Governor of Uttar Pradesh in 1954 authorized the State Government, by notification in the Official Gazette, to appoint Conciliation Officers. Clause twenty‑nine of that Order provides that, during the pendency of any conciliation proceedings or any proceedings before a Tribunal or an Adjudicator concerning a dispute, an employer may not alter the conditions of service to the prejudice of the workmen involved, nor may the employer discharge or punish any workman concerned, except with the express permission of a Conciliation Officer, irrespective of whether the dispute is pending before a Board, a Tribunal or an Adjudicator. Accordingly, the Conciliation Officer, under clause twenty‑nine, is empowered, while any conciliation, Tribunal or adjudication proceedings are ongoing, to permit the employer either to alter the conditions of service applicable to the workmen concerned or to discharge or punish those workmen. The Court therefore considered that the crucial issue is whether the direction issued by the Conciliation Officer, which either authorises or denies the company the exercise of its powers, falls within the scope of a “determination” or an “order” as contemplated by Article 136, and consequently whether such a direction is appealable before this Court.

The Court explained that when an employer relies on the common law to terminate the employment of its workmen, such an exercise amounts to an order or determination within the meaning of Article 136, and consequently an appeal with special leave may be entertained by this Court. It then clarified that the term “determination” as used in Article 136 denotes an effective expression of opinion that resolves a controversy or dispute by an authority authorised under a valid law to adjudicate the matter. In the same context, the word “order” carries a comparable meaning, although it need not necessarily bring the dispute to an end. Both a determination and an order are required to be judicial or quasi‑judicial in nature; a purely administrative or executive direction does not fall within the category of matters that can be appealed to this Court. The Court stressed that the inherent character of its jurisdiction is judicial, and that it does not exercise administrative or executive powers. Accordingly, whether original or appellate, the power conferred by the Constitution is judicial, and any determination or order from which an appeal is sought must possess the quality of a judicial adjudication. The Court further noted that the Conciliation Officer, under clause 29, is empowered to grant or withhold permission to affect the employment of a workman involved in a pending dispute, or to alter conditions of service to his prejudice. Clause 29 therefore imposes a stringent restriction on the employer’s right to terminate an employee under the terms of the employment contract; such a right may be exercised only with the direction of the Conciliation Officer when a dispute between the employer and the employees is pending before the Conciliation Officer or an Industrial Tribunal. The Court observed that the true character of this direction must be examined in light of the nature of the authority vested in the Conciliation Officer and the effect of that direction on the parties’ rights. If the direction were purely administrative, it would not be subject to appeal before this Court.

The Court added that the question of whether a decision is judicial or purely administrative often arises when the superior courts are asked to issue writs of certiorari. Although the distinction between judicial and administrative decisions can be narrow, the principles for ascertaining the true character of a decision are well established. A judicial decision is not confined to the act of a judge or tribunal empowered to decide questions of law or fact; rather, it must be the act of a body or authority that the law has invested with the power to resolve questions or disputes affecting citizens’ rights and that is bound by a duty to act judicially. Such a decision invariably presupposes a duty imposed on the authority to act in a judicial manner. By contrast, administrative authorities may also be invested with powers to determine questions that affect citizens’ rights, and they may be required to invite objections to a proposed course of action, to hear those objectors, and to render a decision that can significantly affect the parties involved. However, unless the authority is mandated to act judicially, its determination remains an executive or administrative act and does not become the subject of an appeal to this Court.

In this case the Court observed that an authority may have the legal power to determine questions that affect the rights of citizens, but such power alone does not convert the decision into a judicial one; the decisive factor is whether the authority is required to act judicially. The Court explained that the distinction between a judicial act and an administrative or executive act rests on the duty imposed on the authority to apply a judicial process. Referring to the observations of Mukherjea, J. in The Province of Bombay v. K. S. Advani, the Court quoted the passage at page 670: “there cannot indeed be a judicial act which does not create or imposes obligations; but an act… is not necessarily judicial because it affects the rights of subjects. Every judicial act presupposes the application of judicial process.” The Court further explained that there is a clear separation between forming a private or personal opinion and determining a matter judicially. When an authority carries out an executive act, it must certainly consider the material before it, yet the opinion formed is purely subjective and depends entirely on the authority’s state of mind. The Court stressed that the authority must act in good faith and, if it is shown that no extraneous consideration influenced the decision, there is no further issue to resolve.

The Court then contrasted this with the method employed in a judicial proceeding. Citing Robson’s Justice and Administrative Law, p. 33, the Court noted that “the judicial process involves the application of a body of rules or principles by the technique of a particular psychological method.” It further explained that a judicial process includes a proposal, an opportunity for opposition, and a decision reached after considering facts and circumstances according to the rules of reason and justice, as referenced in R. v. London County Council (2). The Court clarified that strict rules of evidence are not always required; the procedure for investigating facts or receiving evidence may vary with the needs of a particular case, and no rigid rule governs every such matter. However, the authority’s decision must not be a mere “subjective, personal or private opinion.” The decision must conform to an objective standard or criterion established or recognized by law, and the correctness of the determination must be testable against that external standard. This, the Court held, is the essence of a judicial function that distinguishes it from an administrative function, and whether an authority is required to perform a judicial or administrative function depends wholly on the provisions of the specific enactment.

Generally, the Court explained, when the language of a statute clearly indicates that the personal satisfaction of the authority on certain matters—where the authority must form an opinion—defines its jurisdiction to perform certain acts or issue certain orders, that function should be regarded as an executive function.

In this case, the Court noted that when the language of a statute clearly indicates that the personal satisfaction of the authority on certain matters determines his jurisdiction to make orders, such function is to be regarded as an executive function. It was observed that Justice Mukherjea, although in the minority on the ultimate decision, had set out a principle that received substantial approval from the rest of the Court. The Court also quoted Justice Das, who at page 719 stated that a person entrusted with an administrative act often has to determine questions of fact in order to exercise his power. He explained that the administrator must consider the relevant facts and circumstances, weigh the advantages and disadvantages in his mind, and then decide whether to act, much as a person performing a judicial or quasi‑judicial function must do. Both administrators and quasi‑judicial actors are required to act in good faith, and a valid administrative or executive act binds the subject and affects his rights or imposes liability just as effectively as a quasi‑judicial act. Justice Das further observed that although the legislature may make the exercise of an administrative power dependent on a condition or contingency that involves a question of fact, the determination of whether the condition is satisfied may nevertheless be left to the subjective opinion or satisfaction of the executive authority. To characterize a decision as judicial, the Court laid down three criteria. First, the decision must be a determination made after investigating a question by applying objective standards to facts in the light of an existing legal rule. Second, the decision must declare rights or impose obligations that affect the civil rights of the parties. Third, the investigation must be conducted with certain procedural safeguards, including an opportunity for each party to present its case, the ascertainment of facts by evidence when the dispute involves factual issues, and the presentation of legal argument when the dispute involves questions of law, culminating in a decision that disposes of the matter on the basis of those findings. Applying these tests, the Court found that the Conciliation Officer, when granting or refusing permission to alter the terms of employment of workmen at the request of an employer, must act judicially. The Officer’s decision cannot rest on any subjective satisfaction; instead he is required to investigate and ascertain the facts, apply objective standards to those facts, and determine whether the employer has established a case for alteration of the terms of employment. Although the Uttar Pradesh Industrial Disputes Act and the Order framed thereunder do not prescribe a specific procedure, the duty imposed on the Officer to decide after investigating facts by applying objective standards creates an obligation to adopt a procedure consistent with the purpose and nature of the enquiry. Such a procedure must assure the disputing parties an opportunity to present their respective cases and to support them with evidence and argument. Consequently, the direction issued by the Conciliation Officer under clause 29 of the Order cannot be described as a purely administrative act.

The Court observed that the decision could not be characterized as administrative because it originated from a function that required a judicial, not merely bureaucratic, approach. However, the Court explained that not every decision made by an authority with a duty to act judicially is automatically appealable to this Court. Article 136 of the Constitution permits an appeal to this Court only from adjudications of courts and tribunals that fall within the constitutional definition of such bodies. While adjudication by a court or tribunal must unquestionably be judicial, an authority whose constitution or delegated powers compel it to act judicially does not automatically qualify as a tribunal for the purposes of Article 136. For a body to be treated as a tribunal whose adjudication is appealable, it must, in addition to a judicial duty, be invested with the State’s judicial power. Therefore, to determine whether the Conciliation Officer exercising powers under clause 29 possessed the State’s judicial powers, the Court found it necessary to set out the officer’s powers, functions, and any prescribed procedure. That description had to be based on the Order issued by the Governor that was in force at the material time, because the Order defined the scope of the officer’s authority. The Court also held that a historical review of how the Conciliation Officer’s powers and functions emerged and operated at the date of the impugned order was essential for this assessment. The legislative background began with the enactment by the United Provinces Legislature of the Uttar Pradesh Industrial Disputes Act, 1947 (Act XXVIII), which aimed to provide powers to prevent strikes, lock‑outs, settle industrial disputes, and address incidental matters. Section 3 of that Act authorised the local government, when it deemed such action necessary or expedient, to make general or special orders for appointing industrial courts and referring disputes to conciliation or adjudication as prescribed in the Order. In exercise of the powers conferred by sections 3 and 8 of the 1947 Act, the Governor of Uttar Pradesh issued an Order on 10 March 1948. Clause 1 of the Governor’s Order empowered the Provincial Government to constitute Conciliation Boards, each to be chaired by a Conciliation Officer, for the settlement of industrial disputes, while clause 2 authorized the appointment of those officers. Clause 6 required a Conciliation Board, upon receipt of a dispute, to commence an inquiry and endeavour to secure a settlement; clause 7 prescribed that the Board frame the contested issues, attempt settlement, and, failing that, investigate, record an award with reasons, and make the award appealable to the Industrial Court constituted under clause 10 of the Order.

In the Order, clause ten gave the Conciliation Board the same powers as a civil court under the Code of Civil Procedure, 1903. Those powers included the authority to compel witnesses to attend, to require production of documents, and to inspect any property or thing, such as machinery. Clause nineteen provided that any notice, summons, process or order issued by the Board had to be served in the manner prescribed by the Code of Civil Procedure, 1908. The Court observed that these powers belonged to the Board itself and not to the Conciliation Officer individually. The only statutory power that the Conciliation Officer possessed independently of the Board was the power conferred by clause twenty‑three, which allowed the Officer to modify the terms of employment or to sanction the dismissal or discharge of workmen while an inquiry under the Uttar Pradesh Industrial Disputes Act was pending, or while an appeal from that inquiry was pending, and until the State Government issued its final orders on the Board’s findings. Consequently, under the 1948 Order the Conciliation Board was given authority comparable to that of an Industrial Tribunal under the Industrial Disputes Act, 1947, whereas the power to sanction dismissal during the pendency of the enquiry rested solely with the Conciliation Officer, regardless of whether the matter was before a Board or on appeal before the Industrial Court. The 1948 Order was later superseded by a fresh Order issued in 1951. The replacement was prompted, it appears, by the enactment of the Industrial Disputes (Appellate Tribunal) Act, 1950, which gave the Labour Appellate Tribunal the power to hear appeals against the awards and decisions of Industrial Tribunals, thereby creating a need to re‑orient the scheme for adjudicating labour disputes under the Uttar Pradesh Industrial Disputes Act. The 1951 Order prescribed new rules for constituting Conciliation Boards, Industrial Tribunals and Adjudicators. Under the new scheme the Conciliation Board, chaired by the Conciliation Officer, was limited to endeavouring to bring about a settlement. When a settlement was reached, the Board prepared a memorandum of the terms and submitted it to the State Labour Commissioner. If settlement could not be obtained, the Board filed a report describing the steps taken to ascertain the facts and the attempts made to achieve settlement. The power to make an award was removed from the Board and given to the Industrial Tribunal. Likewise, the powers under the Code of Civil Procedure that had earlier been granted to the Board were withdrawn, although clause twenty‑three continued to vest the Conciliation Officer with the authority to alter conditions of service during the pendency of proceedings before the Officer, a Tribunal or an Adjudicator, irrespective of whether the dispute was before a Board, Tribunal or an Adjudicator.

The Court explained that the Order issued in 1954 replaced an earlier Order made in 1951, but that the fundamental design of the 1954 Order remained essentially the same as the 1951 scheme. Under the 1954 Order a dispute could be referred to a Conciliation Board. The Board was to be composed of the Conciliation Officer, who was appointed by the State Government, together with two additional members – one representing each of the parties to the dispute. The members were to be appointed by the Conciliation Officer on the recommendation of the parties concerned. The Board’s sole function was to draw up a memorandum of settlement when the parties reached an agreement, or, if no settlement was achieved, to submit a report describing the failure to settle. Importantly, the Board was not vested with any authority to make an award. Clause 24 of the Order expressly conferred on the Industrial Tribunal or an Adjudicator, and not on the Board or the Conciliation Officer, the powers that civil courts possessed under the Code of Civil Procedure, 1908. These powers included the ability to summon and enforce the attendance of witnesses, to require the discovery and production of documents, to issue commissions for the examination of witnesses, and to inspect any property or thing that might be relevant to the dispute.

The Court further detailed the provisions of clause 29, omitting the proviso which was not material to the present discussion. Clause 29 stipulated that, while any conciliation proceedings, Tribunal proceedings, or Adjudicator proceedings were pending, and where sub‑clause (3) of clause 5 applied, an employer could not, for a further period of thirty days (excluding holidays but not the annual vacations observed by courts subordinate to the High Court), alter the conditions of service of workmen involved in the dispute to their prejudice, nor could the employer discharge or punish any such workman, whether by dismissal or any other means, without the express written permission of the Conciliation Officer of the relevant area. This restriction applied regardless of whether the dispute was pending before a Board, a Tribunal, or an Adjudicator. The Court noted that the 1954 Order’s scheme was substantially the same as that of the 1951 Order. The Conciliation Officer, appointed by a notification under clause 2 by the State Government, performed two principal functions. First, he served as a member of the Conciliation Board and acted under clauses 4, 5, 6, and 7 to facilitate an amicable settlement. Second, in his capacity as a member of the Board, he was authorized to entertain applications concerning an existing or anticipated industrial dispute and to constitute a Conciliation Board. The Officer’s independent authority, apart from his role on the Board, derived solely from clause 29. The Court indicated that the nature of an order made by a Conciliation Officer under clause 23 of the 1951 Order – which was substantially identical to clause 29 of the 1954 Order – had been examined by this Court in the case of Athenian West & Co. Ltd. v. Suti Mill Mazdoor Union.

In the matter of Jaswant Sugar Mills Ltd. v. Suti Mill Mazdoor Union (1), Justice Bhagwati, while delivering the judgment of the Court, explained that clause 23 of the relevant order expressly prohibited the dismissal or discharge of any workman while an enquiry into an industrial dispute was pending before the Conciliation Board or while an appeal was before the Industrial Court. According to his observation, the employer, his agent, or his manager could dismiss a workman only after obtaining written permission from the Regional Conciliation Officer who was concerned. He noted that even when such written permission—cited as (1)[1953] S. C. R. 780—was granted, the employer retained the discretion either to proceed with the dismissal or to refrain from doing so. The essential effect of the written permission, as the Court clarified, was merely to lift the statutory ban that prevented dismissal during the pendency of the proceedings; it did not itself authorize or validate the act of dismissal. The Court further described the role of the Regional Conciliation Officer, stating that the officer would institute an enquiry to determine whether there existed a prima facie case for the proposed dismissal and whether the employer, his agent, or his manager was acting without improper motive, unfair practice, or victimisation. However, the officer was not vested with the authority, which belonged to the Conciliation Board or the Industrial Court, to decide whether the dismissal was within the legal rights of the employer during the ongoing dispute. The enquiry by the Regional Conciliation Officer, therefore, was limited to these preliminary questions and did not constitute an inquiry into an industrial dispute concerning the non‑employment of the workman, a dispute that would arise only after a dismissal was effected in accordance with the written permission.

The Court emphasized that the written permission granted by the Regional Conciliation Officer was final and conclusive and could not be contested by any party in subsequent proceedings. Consequently, clause 24(1) served solely to prevent any party to the pending proceedings from challenging the written permission once it had been issued. Upon issuance of that permission, the statutory ban on dismissal was removed, allowing the employer, his agent, or his manager to exercise discretion to dismiss the workman. In such a circumstance, an industrial dispute, as defined in section 2(k) of the Industrial Disputes Act, 1947, would arise, giving the dismissed workman the right to have the dispute referred to the Regional Conciliation Board for further enquiry. The Court’s analysis thus delineated the narrow scope of the Regional Conciliation Officer’s enquiry, the limited effect of the written permission to lift the ban, and the finality of that permission under clause 24(1), while underscoring that any subsequent dismissal would give rise to a distinct industrial dispute subject to the mechanisms provided by the Act.

In this case, the Court noted that the definition contained in section 2(k) of the Industrial Disputes Act, 1947, would give rise to an industrial dispute, and that a workman who had been discharged or dismissed would be entitled to have that dispute referred to the Regional Conciliation Board for enquiry into the same. The Court then turned to the essential characteristics of a “tribunal” within the meaning of article 136, a point that had been examined by Mahajan, J. In the decision of Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. (1), Mahajan, J. observed that tribunals which do not derive their authority from the sovereign power could not fall within the ambit of article 136. The Court explained that the condition precedent for a body to be brought within article 136 was that the body must be constituted by the State. Moreover, a tribunal would be outside the ambit of article 136 if it were not invested with any part of the judicial functions of the State and instead discharged purely administrative or executive duties. This view was reaffirmed by the Court in Durga Shankar Mehta v. Thakur Raghuraj Singh (2), where Mukherjea, J. observed that the majority decision in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. (1) made clear that the expression “tribunal” in article 136 does not mean the same thing as “court” but includes, within its ambit, all adjudicating bodies provided they are constituted by the State and are invested with judicial, as distinguished from purely administrative or executive, functions. The Court further explained that the duty to act judicially imposed on an authority by statute does not automatically give that authority the judicial power of the State. Administrative or executive authorities are often required, by virtue of their constitution, to act judicially when dealing with questions affecting the rights of citizens. Examples cited by the Court included Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, and Income‑Tax and Sales‑Tax Officers. Although these authorities have a statutory duty to act judicially, either by explicit provisions of the statutes that create them, by rules framed thereunder, or by implication of the statutes or powers conferred, they remain primarily administrative bodies and are not delegates of the State’s judicial power. In determining whether an authority that is required to act judicially may be regarded as a tribunal, the Court said the principal incident was the investiture of the “trappings of a court.” Such trappings included the authority to determine matters in cases initiated by parties, the requirement to sit in public, the power to compel the attendance of witnesses and to examine them on oath, the duty to follow fundamental rules of evidence (though not the strict rules of the Evidence Act), and the provision for imposing sanctions such as imprisonment, fines, damages or mandatory or prohibitory orders to enforce obedience to their commands. The Court noted that this list was illustrative; some, though not necessarily all, of these trappings would ordinarily make an authority a tribunal.

In this case the Court considered whether an authority that is required to act judicially can be described as a “tribunal.” The Court referred to the observation of Mahajan, J., in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. (1950) S.C.R. 459 at page 476, where the judge quoted Lord Sankey, L.C., in Shell Co. of Australia v. Federal Commissioner of Taxation [1931] A.C. 273. The quotation noted that there exist tribunals possessing many of the “trappings of a Court” yet they are not Courts in the strict sense of exercising judicial power. Mahajan, J. expressed the view that such tribunals, although not full‑fledged Courts, perform quasi‑judicial functions and therefore fall within the meaning of the word “tribunal” in article 136 of the Constitution. The judgment further explained that the cited case clarified that a tribunal is not necessarily a Court in the strict sense merely because it delivers a final decision, hears witnesses on oath, has two or more opposing parties appear before it, issues decisions affecting the rights of persons, provides for an appeal to a Court, or receives matters referred by another body. The Constitution’s use of the term “tribunal” in article 136 appears intended to embrace tribunals that possess similar features to Courts but do not strictly satisfy the definition of a Court.

Turning to the specific statutory scheme, the Court examined the Order issued by the Governor of Uttar Pradesh in 1954. The Order makes it clear that no specific procedure is laid down for the investigation to be conducted by the Conciliation Officer under clause 29. The officer is not required to sit in public, there are no formal pleadings to be filed, and the officer lacks the power to compel the attendance of witnesses. Moreover, the officer is not limited to conducting an enquiry based only on evidence that the parties may present. The Court noted that the Conciliation Officer therefore cannot deliver a determinative judgment or award that would affect the rights and obligations of the parties. He does not possess powers comparable to those of a Civil Court under the Code of Civil Procedure, such as compelling a person’s attendance, examining him on oath, ordering the production of documents, or issuing commissions for the examination of witnesses.

The function of the Conciliation Officer, as described, is limited to granting leave to ascertain whether there is a prima‑facie case for the dismissal or discharge of an employee or for altering terms of employment, and to determine whether the employer’s motive is unfair. The officer does not decide whether the proposed dismissal or discharge is within the employer’s legal right. His order merely lifts a statutory prohibition in certain circumstances, thereby affecting the common‑law right of an employer to dismiss, discharge, or modify the terms of employment under the contract between the parties. While the Conciliation Officer must act judicially when dealing with an application under clause 29, the Court concluded that he is not invested with the judicial powers of the State.

The Court observed that the Conciliation Officer does not exercise the power of the State and therefore cannot be classified as a “tribunal” within the meaning of Article 136 of the Constitution. The matter before the Court did not require a determination of whether a writ application could be entertained under Article 226 of the Constitution in a competent High Court against the order of the Conciliation Officer. The Court’s focus was narrowly limited to the question of whether the Conciliation Officer possessed the attributes of a tribunal that invests judicial powers of the State as contemplated by Article 136.

It was noted that the provisions contained in clause 29 of the Order issued under the Uttar Pradesh Industrial Disputes Act, 1947 have a counterpart in section 33 of the Industrial Disputes Act, 1947. Section 33 states that, during the pendency of any conciliation proceeding before a Conciliation Officer or a Board, or any proceeding before a Labour Court, Tribunal or National Tribunal relating to an industrial dispute, an employer is prohibited, except with the express written permission of the authority before which the proceeding is pending, from altering the conditions of service of the workmen to their prejudice, or from dismissing, discharging, or punishing any workman involved in the dispute for misconduct connected with that dispute. Both statutes thus impose restrictions on an employer’s power to terminate employment while a dispute involving the employer and employee is pending before a statutory authority.

However, the Court pointed out a key difference: under clause 29 the authority to grant permission rests solely with the Conciliation Officer, whereas section 33 vests that authority in the body before which the proceeding is pending, such as a Board, Labour Court, Tribunal or National Tribunal. Section 33‑A of the Industrial Disputes Act further provides that, if an employer contravenes the provisions of section 33 during proceedings before a Labour Court, Tribunal or National Tribunal, any aggrieved employee may file a written complaint in the prescribed manner with the relevant court or tribunal. Upon receipt of such a complaint, that court or tribunal must adjudicate the complaint as if it were a dispute referred to or pending before it, apply the provisions of the Act accordingly, and submit its award to the appropriate Government.

The Court clarified that a contravention of section 33 when the proceeding is pending before the Conciliation Officer or a Board does not attract the operation of section 33‑A and does not convert the matter into an industrial dispute capable of adjudication under section 33‑A. Consequently, an employer’s action that violates section 33 during the pendency of conciliation proceedings may give rise to a claim for adjudication, but such a claim would not be pursued under the mechanism provided by section 33‑A.

It is clear that a dispute may be taken to an industrial tribunal only when the appropriate Government refers the dispute to such a tribunal. In a case of breach of section 33 of the Industrial Disputes Act or of clause 29 of the Order issued by the Governor of Uttar Pradesh, the Conciliation Officer is not empowered to impose any penalty. This fact demonstrates that the Conciliation Officer does not possess the status of an industrial tribunal when he exercises powers under section 33 of the Industrial Disputes Act or under clause 29 of the Uttar Pradesh Order. Consequently, an appeal under article 136 of the Constitution to this Court is not competent against a direction issued by the Conciliation Officer while he is exercising the power conferred on him by clause 29 of the Order issued by the Governor under the Uttar Pradesh Industrial Disputes Act, 1947.

The question of whether an appeal lies to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1948 of 1950 does not present much difficulty. Section 4 of that Act authorises the Central Government to constitute Labour Appellate Tribunals for hearing appeals from the awards or decisions of industrial tribunals in accordance with the provisions of the Act. Section 2(c) defines an “Industrial Tribunal” in three parts: (i) any industrial tribunal constituted under the Industrial Disputes Act, 1947; (ii) in relation to cases where an appeal lies from any court, wage board or other authority set up in any State under any law relating to the adjudication of industrial disputes, whether before or after the commencement of this Act, by the legislative authority of the State, to any other court, board or authority exercising appellate jurisdiction within the State; and (iii) in relation to other cases, where no appeal lies under any law referred to in sub‑clause (ii), any court, board or other authority set up in any State under such law.

The Conciliation Officer who functions under clause 29 is not an industrial tribunal constituted under the Industrial Disputes Act, 1947, because his authority is derived from an appointment made by the State of Uttar Pradesh under the Uttar Pradesh Industrial Disputes Act, 1947. Moreover, the Uttar Pradesh Industrial Disputes Act, 1947, and the orders made thereunder contain no provision for an appeal to any similar authority against a direction made by the Conciliation Officer in the exercise of the power conferred by clause 29. An appeal under section 4 of the 1948 Act lies against the direction of a Conciliation Officer only if he is a court or an authority. The legislature used the expression “any court, board or other authority” in sub‑clause (iii); the context indicates that the term “other authority” must be read ejusdem generis with court or board. The right to appeal conferred by section 4 is limited to awards or decisions, and a Conciliation Officer does not make an award nor even a decision. His function is not to deliver a definitive judgment affecting the rights of the parties before him.

In this case, the judgment noted that the Conciliation Officer was not empowered to adjudicate industrial disputes and therefore did not have authority over the parties before him. Although the officer was appointed under a statute dealing with the adjudication of industrial disputes, his role was limited to functions that were merely incidental to such adjudication, and his powers differed fundamentally from those of an Industrial Court, Board, or Tribunal. The court held that, for an entity to be considered an “authority” within the meaning of section 2(c)(iii) of the Industrial Disputes (Appellate Tribunal) Act, it must be a body expressly constituted for the purpose of adjudicating industrial disputes under a law enacted by a State. Because the Conciliation Officer was not vested with such adjudicatory power, he could not be regarded as an “authority” under that statutory provision. The court further observed that the Labour Appellate Tribunal had consistently held, and the court agreed, that an appeal against a conciliator’s order could not be entertained under section 4 of the Industrial Disputes (Appellate Tribunal) Act, as reflected in the precedent Sassoon & Alliance Silk Mills Co. Ltd v. Mill Mazdoor Sabba (1)[1955] 1 L.L. J. 70. Accordingly, both appeals were dismissed, each with costs awarded, and a single hearing fee was imposed. The final order therefore dismissed the appeals.