Judicial Dictionary

Union Judiciary-Constitution of India

The article occurs in Chapter IV of Part V of the constitution “The Union Judiciary.” Art. 124 deals with the establishment and constitution of the Supreme Court. Art. 131 confers original jurisdiction on Supreme Court in certain disputes arising between the Government of India and the States, etc. Arts. 132 and 133 deal with the appellate jurisdiction of the Court in appeals from High Courts within the territory of India in civil matters. By Art. 134 limited right of appeal in criminal cases has been allowed. The Judicial Committee of the Privy Council which was the highest Court of Appeal for India prior to 10th October, 1949, was not a Court of criminal appeal in the sense in which Supreme Court has been made a Court of criminal appeal under Art. 134. It could only entertain appeals on the criminal side in exercise of the prerogative of the Kings.

Art. 135 empowers Supreme Court to hear all appeals which under existing laws could heard by the Federal Court of India. By the Abolition of the Privy Council Jurisdiction Act, 1949, which came into force on the 10th October, 1949, all the powers that were possessed by the Judicial Committee of the Privy Council in regard to cases or matters arising in India became exercisable by the Federal Court of India whether those powers were exercisable by reason of statutory authority or under the prerogative of the King. The powers of the Judicial Committee were conferred upon it by the Judicial Committee Act, 1844 (7 & 8 Vict. C. 69). Appeals lay to His Majesty in Council from judgments, sentences, decrees or orders of any Court of justice within any British colony or possession abroad. Closely following Art. 135 which confers all the powers of the judicial Committee on the Supreme Court comes Art.

The language employed in this article is very wide and is of a comprehensive character. Power given are of an overriding nature. The article commences with the words “Notwithstanding anything in this Chapter.” These words indicate that the intention of the constitution was to disregard in extraordinary cases the limitations contained in the previous article on Supreme Court’s power to entertain appeals. These articles dealt with the right of appeal against final decisions of High Courts within the territory of India Art. 136, however, overrides that qualification and empowers Supreme Court to grant special leave even in case where the judgment has not been given by a High Court but has been given by any Court in the territory of India : in other words, it contemplates grant of special leave in cases where a Court subordinate to a High Court has passed or made any order and the situation demands that the order should be quashed or reversed even without having recourse to the usual procedure provided by law in the nature of an appeal, etc. The word “order” in Art. 136 has not been qualified by the word “final.” It is clear, therefore, that the power to grant special leave under this article against an order of a Court could be exercised with respect to interlocutory orders also. Another new feature introduced in Art. 136 is the power given to grant special leave against orders and determinations, etc., of any tribunal in the territory of India. This word did not find place in the Judicial Committee’s Act, where the phrase used was “a Court of justice.” It is the introduction of this new expression in Art. 136 that has led to considerable argument as to its scope. Another expression that did not find place in the Judicial Committee Act but has been introduced in Art. 136 is the word “determination.” A question has been raised as to the meaning to be given to these words in the article. On the one hand, it was contended that the words “determination” and “tribunal” were introduced in the article in order to bring within the scope of the appellate jurisdiction of Supreme Court all orders of tribunals of different varieties and descriptions. On the other hand, it was said that the words “determination” and “tribunal” were added in the article by way of abundant caution and the intention was that if a tribunal exercised the judicial powers of the State and the decisions passed in the exercise of that power, Supreme Court as the highest judicial Court in the Republic would have power if it considered necessary in the ends of justice to grant special leave. Clause (2) of Art. 136 excludes the jurisdiction of Supreme Court in respect of military Courts or tribunal. It is interesting to observe that in Art. 138, 139 and 140 the constitution has conferred powers on Parliament for further enlargement of the powers of Supreme Court.

COURT VS TRIBUNAL

(1) whether the word “Tribunal” in this article has been used in the same sense as “Court,” or whether it has been used in a wider sense, and (2) whether the word “determination” in the article includes within its scope the determinations made by industrial tribunals or other similarly constituted bodies or whether it has reference only to determinations of a Court or a tribunal of a purely judicial character. It was conceded by the learned Counsel appearing for the Central Government, Mr. Alladi Krishnaswami Aiyar, that if any tribunal, whether administrative, domestic or quasi-judicial, acts in excess of its jurisdiction, then it can be controlled by the High Court under the powers conferred on them by Art. 226 by the issue of a writ of certiorari. It was said that if the industrial tribunal in this case could be proved to have trespassed beyond the limits of its statutory jurisdiction, then the remedy lies elsewhere and not be a petition of leave under Art. 136. Mr. Alladi’s contentions may be briefly summarized as follows : (1) The expression “tribunal” means seat of a Judge, or a Court of justice. Its necessary attribute is that it can give a final judgment between two parties which carries legal sanction by its own force. That the word “tribunal” in juxtaposition to the word “Court” could only mean a tribunal which exercised judicial functions of the State and did not include within its ambit a tribunal which had quasi-tribunal or administrative powers. (2) The kind of orders against which special leave to appeal could be given under Art. 136 have to be of the same nature as passed by a Court : in other words, it was said that unless there was a judicial determination of a controversy between two parties, the order would not be appealable. That in the case of an industrial tribunal what gives binding force to the award is the declaration of the government, that the spark of life to it is given by that declaration and without that the award of the tribunal is lifeless and has no enforceability and hence cannot be held to be of an appealable nature. It was further said that in cases between the Government and its employees by the procedure prescribed in the Act the award could also be rejected and that being so, by its own determination a tribunal could not impose a liability or affect rights. Dr. Bakshi Tek Chand, appearing for the bank, on the other hand, argued that whenever a tribunal, whether exercising judicial or quasi-judicial functions, determined a matter in a judicial manner, then such a determination is within Art. 136. It was said that an industrial tribunal has no administrative or executive functions, that its duty is to adjudicate on an industrial dispute, i.e. to act as a Judge on certain kinds of disputes between employers and employees and that its functions are of a judicial nature, though the ambit of the powers conferred is larger than that of an ordinary Court of law inasmuch as it can grant reliefs which no Court of law could give but that is because of the powers conferred on it by law. It was argued that the plain words of the article should not be given a narrow meaning when the intention of the constitution was to confer the widest power on Supreme Court. It was further contended that as between private employers and employees and even in certain cases between Government and its employees the decision of the tribunal was binding on the Government and Government had no power either to affirm, modify or reject it. All that it was authorised to do was to announce it and by its declaration give it enforceability; that fact, however, could not affect the question of appealability of the determination under Art. 136. It was finally argued that powers should be exercised by Supreme Court wherever there is a miscarriage of justice by a determination of any tribunal and that if the intention of the constitution by use of the word “tribunal” was in the same sense as “Court,” then it was not necessary to import it in Art. 136, because all tribunals that exercise judicial functions fall within the definition of the word “Court” though they may not have been so described.

As pointed out in picturesque language by Lord Sankey, L. C., in Shell Co. of Australia v. Federal Commissioner of Taxation, there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. It seems to me that such tribunals though they are not full-fledged Courts, yet exercise quasi-judicial functions are within the ambit of the word “tribunal” in Art. 136 of the constitution. It was pointed out in the above case that a tribunal is not necessarily a Court in this strict sense because it gives a final decision, nor because it hears witnesses on oath, nor because two or more contending parties appear before it between whom it has to decide, nor because it gives decisions which affect the rights of subjects nor because there is an appeal to a Court, nor because it is a body to which a matter is referred by another body. The intention of the constitution by the use of the word “tribunal” in the article seems to have been to include within the scope of Art. 136 tribunals adorned with similar trappings a Court but strictly not coming within that definition. Various definitions of the phrase “judicial power” have been given from time to time.

JUDICIAL POWER

The best definition of it on high authority is the one given by Griffith, C.J., in Huddart, Parker & Co. v. Moorehead, wherein it is defined as follows :-

“The words ‘judicial power’ as used in section 71 of the constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

It was conceded that a tribunal constituted under the Industrial Disputes Act, 1947, exercises quasi-judicial powers. That phrase implies that a certain content of the judicial power of the State is vested in it and it is called upon to exercise it. An attempt was made to define the words “judicial” and “quasi-judicial” in the case of Cooper v. Wilson. The relevant quotation reads thus :-

“A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites :- (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them us a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister’s free choice.”

The extent of judicial power exercise by an Industrial Tribunal will be considered hereinafter in the light of the observations cited above.

 Reference was made to certain passengers from Prof. Allen’s book on Law and Order, Ch. IV, page 69, where mention is made of the kinds of administrative tribunals functioning in various countries to-day. Porter on Administrative Law, 1929 Edn., page 194, was also relied upon. There can be no doubt that varieties of administrative tribunals and domestic tribunals are known to exist in this country as well as in other countries of the world but the real question to decide in each case is as to the extent of judicial power of the State exercised by them. Tribunals which do not derive authority from the sovereign power cannot fall within the ambit of Art. 136. The condition precedent for bringing a tribunal within the ambit of Art. 136 is that it should be constituted by the State. Again a tribunal would be outside the ambit of Art. 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. Tribunals, however, which are found invested with certain functions of a Court of justice and have some of its trappings also would fall within the ambit of Art. 136 and would be subject to the Appellate control of supreme Court whenever it is found necessary to exercise that control in the interests of justice.

It is now convenient to consider whether a tribunal constituted under the Industrial Disputes Act, 1947, exercises all or any of the functions of a Court of justice and whether it discharges them according to law or whether it can act as it likes in its deliberations and is guided by its own notions of right and wrong.

The phrase “industrial dispute” has been defined in section 2 clause (k) of the Act as follows :-

“any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with employment or non-employment or the terms of employment or with the conditions of labour, of any person.”

Such a dispute concerns the rights of employers and employees. Its decision affects the terms of a contract of service or the conditions of employment. Not only may the pecuniary liability of an employer be considerably affected by the adjudication of such dispute but it may even result in the imposition of punishments on him. It may adversely affect the employees as well. Adjudication of such a dispute affects valuable rights. The dispute and its result can always be translated in terms of money. The point for decision in the dispute usually is how much money has to pass out of the pocket of the employer to the pocket of the employee in one form or another and as to what extent the right of freedom of contract stands modified to bring about industrial peace. Power to adjudicate on such a dispute is given by section 7 of the statute to an Industrial Tribunal and a duty is cast on it to adjudicate it in accordance with the provisions of the Act. The words in italics clearly imply that the dispute has to be adjudicated according to law and not in any other manner. When the dispute has to be adjudicated in accordance with the provisions of the Act, it follows that the tribunal has to adhere to law, though that law may be different from the law that an ordinary Court of justice administers. It is noteworthy that the tribunal is to consist of experienced judicial officers and its award is defined as a determination of the dispute”.

ADJUDICATION

The expression “adjudication” implies that the tribunal is to act as a Judge of the dispute; in other words, it sits as a Court of justice and does not occupy the chair of an administrator. It is pertinent to point out that the tribunal is not given any executive or administrative powers. In Section 38 of the Act power is given to make rules for the purpose of giving effect to the provisions of the Act. Such rules can provide in respect of matters which concern the powers and procedure of tribunals including rules as to the summoning of witnesses, the production of documents relevant to the subject-matter and as to appearance of legal practitioners in proceedings under this Act. Rule 3 of these rules provides that any application for the reference of an industrial dispute to a tribunal shall be made in form. (A) and shall be accompanied by a statement setting forth, inter alia, the names of the parties to the dispute and the specific matters of dispute. It is in a sense in the nature of a plaint in a suit. In Rule 13 power is given to administer oaths. Rule 14 provides as follows :-

“A tribunal may accept, admit or call for evidence at any stage of the proceedings before it and in such manner as it may think fit.”


The Bharat Bank Ltd (1950) Suppl. SCR 317

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