Jaswant Sugar Mills Ltd., Meerut Vs.
Lakshmi Chand & Ors [1962] INSC 263 (25 September 1962)
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1963 AIR 677 1963 SCR Supl. (1) 242
CITATOR INFO :
RF 1964 SC1140 (13) R 1964 SC1154 (27,28) R
1965 SC1595 (22,42) RF 1977 SC2155 (24) RF 1987 SC1629 (16) RF 1992 SC2219
(55,56)
ACT:
Industrial Dispute-Dismissal of
workmen-Application for permission before Conciliation Officer-Direction of Conciliation
Officer-Appeal to Appellate Tribunal, if maintainable Grant of special
leave-Competence-U. P. Industrial Disputes Act, 1947 (U. P. 28 of 1947),ss. 3,
8Industrial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950), ss. 2 (c) cl.
(iii), 4-Constitution of India, Art. 136.
HEADNOTE:
The workmen of the appellant company resorted
to direct action in order to enforce their demands for bonus, leave etc.
Thereupon, the company served charge sheets upon sixty-three workmen. The
enquiry officer who investigated the charges found that all the workmen were
guilty of sabotage and slowdown strike and that they were liable to be
dismissed. But as at that time a dispute between the company and its workmen
relating to payment of bonus was pending before the Industrial Tribunal, the
conditions of service of the workmen could not, by virtue of cl. 29 of the
order issued in 1954 by the Governor 243 of Uttar Pradesh under the U. P. Industrial
Disputes Act, 1947, be altered nor the workmen discharged without the previous
permission of the Conciliation Officer. An application was made to the
Conciliation Officer for permission to dismiss the workmen. The Officer granted
permission in respect of only eleven workmen on the ground that the rest of the
workmen were mere passive participants in the go-slow campaign. The company
preferred an appeal to the Labour Appellate Tribunal but it was dismissed as
incompetent on the ground that the Conciliation Officer was not an authority
within the meaning of s. 2 (c) (iii) of the Industrial disputes (Appellate
Tribunal) Act, 1950. The company then obtained special leave to appeal to the Supreme
Court against the direction of the Conciliation Officer and also against the
order of the Labour Appellate Tribunal.
Held, that a Conciliation Officer under cl.
29 of the Order promulgated in 1954 under the U. P. Industrial Disputes Act, 1947,
has to act judicially in granting or refusing permission to alter the terms of
employment of workmen at the instance of the employer, but as he is not
invested with the judicial power of the State, he cannot be regarded as a
tribunal within the meaning of Art. 136 of the Constitution of India.
Consequently, an appeal under that Article is not competent against the direction
given by the Conciliation Officer.
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,
relied on.
Held, further, that an "authority"
under s. 2 (c) (iii) of the Industrial Disputes (Appellate Tribunal) Act, 1950,
to be an industrial tribunal must be a body constituted for the purpose of
adjudication of industrial disputes under a law made by the State; since a
Conciliation Officer is not invested with any such power, he cannot be regarded
as an "authority" within the meaning of that section.
Accordingly, an appeal against the order of
the Conciliation Officer is not maintainable under s. 4 of the Industrial
Disputes (Appellate Tribunal) Act, 1950.
Sassoon & Alliance Silk Mills Co. Ltd. v.
Mill Mazdoor Sabha, [1955] 1 L. L. J. 70, referred to.
CIVIL APPELLATE JURISDICTION : CIVIL Appeal
Nos. 37 and 38 of 1961.
244 Appeals by special leave from the
judgment and orders dated July 9, 1956, and May 9, 1956, of the Labour
Appellate Tribunal of. India, Lucknow, and the Additional Regional Conciliation
Officer, Meerut, in Appeal No. 111-111 of 1956 and P. D. Case No. 15 of 1956
respectively.
Veda Vyasa, S. K. Kapur, J. B. Dadachanji,
Prem Nath Chadha and Ganpat Rai, for the appellants.
A.S. R. Chari, R. K. Garg, S. O. Agarwala and
P. C. Agarwala, for the respondents.
1962. September 25. The judgment of' the
Court was delivered by SHAH, J.-Two questions arise in limine in these appeals:
(1) Whether an appeal may be entertained in
exercise of powers under Art. 136 of the Constitution against a direction of
the Conciliation Officer issued in disposing of an application under cl. 29 of
the Order promulgated by the Governor of Uttar Pradesh under the U. P. Industrial
Disputes Act, 1947 ; and (2) Whether against the direction issued by the
Conciliation Officer exercising authority under cl. 29 of the Order an appeal
lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate
Tribunal) Act, 1950.
It would be necessary to consider the merits
of the appeal in the event of an affirmative answer on either of these
questions.
Facts which have a bearing on the preliminary
questions are briefly these jaswant Sugar Mills Ltd.-hereinafter referred to as
'the Company'-owns factories at Meerut in the State of Uttar Pradesh for
manufacturing sugar 245 and straw boards. On December 13, 1955, the Company
received a notice relating to demands for bonus, leave, retaining allowance
etc., from the Action Committee of one of the Labour Unions of the workmen
employed in the Sugar Factory: It is the case of the Company that on December
26, 1955, there was a meeting of the workmen and certain employees exhorted the
workmen to resort to "'direct action" and in pursuance thereof the
workmen adopted a "slow-down strike" which resulted in great
reduction in the operations of crushing sugarcane, and production of sugar. The
Company thereupon served charge-sheets upon sixty-three workmen charging them
individually and collectively for doing acts calculated to destroy the
machinery of the factory and for deliberately adopting a policy of
"go-slow" and refusing to attend work assigned to them at the
appointed time.
The Enquiry Officer who investigated the
charges against the delinquent workmen, by his order dated January 9, 1958,
held that all the workmen were guilty of "'sabotage and slowdown
strike" and were therefore liable to be dismissed. But at that time a
dispute relating to payment of bonus was pending before the Uttar Pradesh State
Industrial Tribunal in which the Company and the workmen were concerned, and
the conditions of service of the workmen could not, by virtue of cl. 29 of the
Order issued in 1954 by the Governor of Uttar Pradesh under the U. P Industrial
Disputes Act, 1947, be altered, and the workmen could not be discharged without
the previous permission of the Conciliation Officer.
An application was accordingly submitted by
the Company to the Regional Conciliation Officer, Meerut, for permission to
dismiss the workmen who were, on the finding of the Enquiry Officer, concerned
with "'slow-down strike and other illegal tactics" adopted by them
with a view to cause loss to the 246 Company. The Conciliation Officer granted
permission in respect of only eleven workmen, for in his view, the remaining
fifty-two workmen were mere " passive, participants in the go-slow
campaign", and that it "would not be fair and justifiable to grant
permission to dismiss those workmen from service". The Company preferred
an appeal to the Labour Appellate Tribunal, Lucknow, against the direction of
the Conciliation Officer refusing to grant permission to dismiss fifty-two
workmen, but the appeal was rejected, because in the view of the Appellate
Tribunal the Conciliation Officer was not an "authority" within the
meaning of s. 2 (c) cl. (iii) of the Industrial Disputes (Appellate Tribunal)
Act, 1950, and the appeal was therefore incompetent. The Company has, with
special leave, preferred appeals against the direction of the Conciliation
Officer, and the order of the Labour Appellate Tribunal. The order of the
Conciliation Officer is challenged on the ground that in refusing permission to
dismiss fifty-two workmen, the Conciliation Officer ignored the principles
settled by this Court and the Labour Appellate Tribunal in cases dealing with
applications for granting permission to discharge employees under s. 33 of the Industrial
Disputes Act, 1947.
In the appeal against the order of the Labour
Appellate Tribunal, it is submitted that the Conciliation Officer was an
"authority" within the meaning of s. 2 (c) cl. (iii) of the
Industrial Disputes (Appellate Tribunal) Act, 1950 and the direction made by
the Conciliation Officer was a decision within the meaning of s. 4 of that Act.
Counsel for the workmen contended that the
appeal against the direction given by the Conciliation Officer is not maintainable
because that officer exercising authority under cl. 29 of the Order promulgated
in 1954 under the U. P. Industrial Disputes Act, 1947, is neither a
"Court' nor a 'Tribunal' within the meaning of Art. 136 of the
Constitution and no appeal lies to this Court against the impugned direction.
247 Article 136( 1) of the Constitution
provides :
"'Notwithstanding anything in this
Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or Made by any court or tribunal in the territory of
India".
By cl. (2) judgments, determinations,
sentences and orders passed or made by any court or tribunal constituted by or
under any law relating to the Armed Forces are exempt from the operation of cl.
(1). This Court is manifestly invested with jurisdiction to entertain appeals
from judgments, decrees, determinations, sentences or orders in causes or
matters passed by courts and tribunals except those constituted by or under any
law relating to the Armed Forces. It is common ground that a Conciliation
Officer exercising authority under cl. 29 of the Order made under the U. P. Industrial
Disputes Act, 1947, is not a "court", and the impugned direction does
not amount to a judgment or decree. In determining whether an appeal still lies
against the impugned direction of the Conciliation Officer, two primary
questions fall to be considered:
(1) whether the direction made by the
Conciliation Officer is a determination or an order; and (2) whether the
Conciliation Officer is a 'tribunal' within the meaning of the Act? Reference to
the detailed provisions of the U. P. Industrial Disputes Act and Orders made there
under from time to time, will be made hereafter, but it may suffice at this
stage to observe that the Order made by the Governor of Uttar Pradesh in 1954
authorised the State Government by Notification in the Official Gazettee to
appoint Conciliation Officers, and by cl. 29 provided that during the pendency
of any conciliation proceedings or proceedings before a Tribunal or an
Adjudicator in 248 respect of any dispute, an employer shall not alter the
conditions of service to the prejudice of the workmen concerned in such dispute
or discharge or punish any workman concerned in such dispute, save with the
express permission of a Conciliation Officer irrespective of whether the
dispute is pending before a Board or the Tribunal or an Adjudicator.
The Conciliation Officer is by cl. 29 authorised
during the pendency of any Conciliation proceeding or proceedings before a
Tribunal or an Adjudicator to permit the employer to alter to. the prejudice of
the workmen concerned in such dispute the conditions of service applicable to
them or to discharge or punish the workmen concerned in such disputes.
If the direction of the Conciliation Officer
which operates proportion vigor to authorise or to deny to the Company the
exercise of its powers under the common law to terminate the employment of its
workmen, amounts to an order or determination within the meaning of Art. 136,
an appeal with special leave would be maintainable in this Court. The
expression "determination" in the context in which it occurs in Art.
136 signifies an effective expression of opinion which ends a controversy or a
dispute by some authority to whom it is submitted under a valid law for
disposal. The expression "order" must have also a similar meaning,
except that it need not operate to end the dispute. Determination or order must
be judicial or quasi-judicial : purely administrative or executive direction is
not contemplated to be made the subject-matter of appeal to this Court. The
essence of the authority of this Court being judicial, this Court does not
exercise administrative or executive powers i.e. character of the power
conferred upon this Court, original or appellate, by its constitution being
judicial, the determination or order sought to be appealed from must have the
character of a judicial adjudication. The Conciliation Officer is authorised by
cl. 29 to grant or withhold 249 permission to determine the employment of a
workman concerned in a pending dispute or to alter to his prejudice conditions
of his service. Clause 29 severely restricts the right of the employer to terminate
employment according to the terms of the contract of employment, and the right
is made exercisable upon the direction of the Conciliation Officer if at the
time when the right is sought to be exercised, a dispute in which the employer
and the employees are concerned, is pending before the Conciliation Officer or
in an Industrial Tribunal. The true character of this direction must be
examined in the light of the nature of the authority vested in the Conciliation
Officer and its impact upon the rights of the parties. If the direction is
purely administrative, it will not be subject to appeal to this Court.
Question whether a decision is judicial or is
purely administrative, often arises when jurisdiction of the superior courts to
issue writs of certiorari is invoked.
Often the line of distinction between
decisions judicial and administrative is thin : but the principles for
ascertaining the true character of the decisions are well-settled. A judicial
decision is not always the act of a judge or a tribunal invested with power to
determine questions of law or fact : it must however be the act of a body or
authority invested by law with authority to determine questions or disputes
affecting the rights of citizens and under a duty to act judicially. A judicial
decision always postulates the existence of a duty laid upon the authority to
act judicially. Administrative authorities are often invested with authority or
power to determine questions, which affect the rights of citizens. The
authority may have to invite objections to the course of action proposed by
him, he may be under a duty to hear the objectors, and his decision may
seriously affect the rights of citizens but unless in arriving at his decision
he is required to act judicially, his decision 250 will be executive or
administrative. Legal authority to determine questions affecting the rights of
citizens, does not make the determination judicial : it is the duty to act
judicially which invests it with that character. What distinguishes an act
judicial from administrative is therefore the duty imposed upon the authority
to act judicially. Mukherjea, J., in The Province of Bombay v. K. S. Advani
observed at p. 670 "there cannot indeed be a judicial act which does not
create or imposes obligations ;
but an act, x x x x x x is not necessarily
judicial because it affects the rights of subjects. Every judicial act
presupposes the application of judicial process. There is well marked
distinction between forming a personal or private opinion about a matter, and
determining it judicially. In the performance of an executive act, the
authority has certainly to apply his mind to the materials before him ; but the
opinion he forms is a purely subjective matter which depends entirely upon his
state of mind. It is of course necessary that he must act in good faith, and if
it is established that he was not influenced by any extraneous consideration,
there is nothing further to be said about it. In a judicial proceeding, on the
other hand, the process or method of application is different. "The
judicial process involves the application of a body of rules or principles by
the technique of a particular psychological method", vide Robson's justice
and Administrative Law, p. 33. It involves a proposal and an opposition, and
arriving at a decision upon the same on consideration of facts and
circumstances according to the rules of reason and justice, vide R. v. London
County Council(2). It is not necessary that the strict rules of evidence should
be followed : the procedure for investigation of facts or for reception of
evidence may vary according to the requirements of a particular case. There
need not be any hard and fast rule on such matters, but the decision which the
authority arrives at, must not be his "subjective', 'Personal' or
'private' opinion.
(1) [1950] S.C.R. 621.
(2) [1931] 2 K. B. 215, 233.
251 It must be something which conforms to an
objective standard or criterion laid down or recognised by law, and the
soundness or otherwise of the determination must be capable of being tested by
the same external standard. This is the essence of a judicial function which
differentiates it from an administrative function ; and whether an authority is
required to exercise one kind of function or the other depends entirely upon
the provisions of the particular enactment. x x x x x Generally speaking where
the language of a statute indicates with sufficient clearness that the personal
satisfaction of the authority on certain matters about which he has to form an
opinion finds his jurisdiction to do certain acts or make certain orders, the
function should be regarded as an executive function." It may be observed
that Mukherjea, J., was on the ultimate decision in the case, in the minority,
but the principle enunciated by him had substantially the approval of the
Court. Das, J., in the same case at p. 719 observed: "a person entrusted
to do an administrative act has often to determine questions of fact to enable
him to exercise his power. He has to consider facts and circumstances and to
weigh pros and cons in his mind before he makes up his mind to exercise his
power just as a person exercising a judicial or quasi-judicial function has to
do. Both have to act in good faith. A good and valid administrative or
executive act binds the subject and affects his rights or imposes liability on
him just as effectively as a quasi-judicial act does. The exercise of an
administrative or executive act may well be and is frequently made dependent by
the legislature upon a condition or contingency which may involve a question of
fact, but the question of fulfillment of which may, nevertheless, be left to
the subjective opinion or satisfaction of the executive authority".
To make a decision or an act judicial, the
following criteria must be satisfied:
252 (1) it is in substance a determination
upon investigation of a question by the application of objective standards to
facts found in the light of preexisting legal rule;
(2) it declares rights or imposes upon
parties obligations affecting their civil rights; and (3) that the
investigation is subject to certain procedural attributes contemplating an
opportunity of presenting its case to a party, ascertainment of facts by means
of evidence if a dispute be on questions of fact, and if the dispute be on
question of law on the presentation of legal argument, and a decision resulting
in the disposal of the matter on findings based upon those questions of law and
fact.
Applying these tests, there is' little doubt
that the Conciliation Officer in granting or refusing permission to alter the
terms of employment of workmen, at the instance of the employer, has to act
judicially. His decision is not made to depend upon any subjective
satisfaction; he is required to investigate and ascertain facts, apply objective
standards to facts found, and to declare whether the employer makes out a case
for granting permission to alter the terms of employment of his employees. The
U. P. Industrial Disputes Act and the Order framed there under do not lay down
any specific procedure, but the duty cast upon him to decide after
investigating facts by the application of objective standards involves an
obligation to evolve a procedure consistent with the purpose and nature of the
enquiry, which assures to the disputing parties an opportunity to present their
respective cases, and to substantiate the same by evidence and argument.
Therefore the direction of the Conciliation Officer under cl. 29 'of the Order,
cannot be said to be purely administrative.
253 But every decision or order by an
authority under a duty to act judicially is not subject to appeal to this
Court.
Under Art. 136, an appeal lies to this Court
from adjudications of courts and tribunals only. Adjudication of a court or
tribunal must doubtless be judicial: but every authority which by its
constitution or authority specially conferred upon it is required to act
judicially, is not necessarily a tribunal for the purpose of Art. 136. A
tribunal, adjudication whereof is subject to appeal, must beside being under a
duty to act judicially, be a body invested with the judicial power of. the
State. For the purpose of ascertaining whether the Conciliation Officer
exercising powers under cl. 29 is invested with the judicial powers of the
State, it is necessary to set out the nature of the powers and functions of the
Conciliation Officer and the procedure, if any, prescribed for the exercise of
those powers and functions under the Order issued by the Governor, and which
was in force at the material time. A historical review of the emergence of the
powers and functions of the Conciliation Officer in operation at the date when
he passed the order impugned in these appeals has an important bearing. The
Legislature of the United Provinces enacted the U.P. Industrial Disputes Act,
XXVIII of 1947, to provide "for powers to prevent strikes and lock-outs,
to settle industrial disputes and for other incidental matters". By s. 3
of the U. P. Industrial Disputes Act, the Local Government was authorised, if
in its opinion it was necessary or expedient so to do for certain specified
purposes to make by general or special order, provision, inter alia for
appointing industrial courts and for referring any industrial dispute for
conciliation or adjudication in the manner provided in the Order.
The Governor of Uttar Pradesh on March 10,
1948, issued an Order in exercise of the powers conferred under ss. 3 and 8 of
the U. P. Industrial 254 Disputes Act, 1947. By cl. 1 of the Order power was
conferred upon the Provincial Government to constitute Conciliation Boards for
settlement of industrial disputes under the chairmanship of Conciliation
Officers, and by cl.
2 the Provincial Government was authorised to
appoint Conciliation Officers. By cl. 6 the Conciliation Board had to commence
an inquiry into a dispute or matter brought before it and to endeavor to bring
about a settlement of the same. Clause 7 prescribed the procedure to be
followed by the Board in the course of the inquiry : the Board had to frame
issues on points on which the parties were at variance and to endeavour to
secure a settlement of the dispute. If no amicable settlement was reached, the
Board investigated the dispute and recorded an award together with the reasons
thereof on the issues on which the parties were at issue.
The award made by the Conciliation Board was
subject to appeal to the Industrial Court constituted under cl. 10 of the Order.
By cl. 18 the Conciliation Board was invested with certain powers of a Civil
Court under the Code of Civil Procedure, 1903, such as enforcing attendance of
witnesses, compelling production of documents, inspection of any property or
thing, including machinery etc. By cl. 19 provision was made for service of
notice, summons, process or order issued by the Board in the manner prescribed
by the Code 'of Civil Procedure, 1908. But these were the powers of the
Conciliation Board, and not of the Conciliation Officer. The only statutory
authority conferred upon the Conciliation Officer independently of the Board
was authority under cl. 23 to permit modification of terms of employment or
dismissal or discharge of workmen during the continuance of an enquiry under
the U. P. Industrial Disputes Act or appeal therefrom and pending the issue of
the orders of the State Government upon the, findings of the Board of Court.
Under the Order promulgated in 1948, therefore, the Conciliation Board was
invested with authority analogous to that 255 of an Industrial Tribunal under
the Industrial Disputes Act, 1947. But the power to sanction discharge or
dismissal of workmen during the continuance of the enquiry was vested
exclusively in the Conciliation Officer, irrespective of whether the enquiry
was pending before a Conciliation Board, or in appeal before the Industrial
Court.. This Order was superseded by fresh Order which was promulgated in 1951.
It was presumably because of the enactment of the Industrial Disputes
(Appellate Tribunal) Act, 1950, by the Parliament which conferred authority
upon the Labour Appellate Tribunal to entertain appeals in certain matters
against the awards and decisions of the Industrial Tribunals that the necessity
of reorientation of the scheme for adjudication of labour disputes under the U.
P. Industrial Disputes Act arose. By the fresh Order rules were prescribed for
constitution of Conciliation Boards Industrial Tribunals and Adjudicators.
By this Order a Conciliation Board of which
the Conciliation Officer was to be the Chairman was only to endeavour to bring
about a settlement of dispute before it. If a settlement was brought about, the
Conciliation Board prepared a memorandum of terms of the settlement arrived at
and the same was submitted to the Labour Commissioner of the State' Where no
amicable settlement was secured, the Board made a report setting forth the
steps taken for ascertaining the facts and circumstances relating to the
dispute and the attempts made for bringing about an amicable settlement.
Power to make an award was taken away from
the Conciliation Board, and was vested in the Industrial Tribunal. Powers
exercisable under the Code of Civil Procedure under the previous Order were
also taken away from the Conciliation Board but the authority to alter
conditions of service during the pendency of proceeding before the Conciliation
Officer or a Tribunal or an Adjudicator by cl. 23 remained with the
Conciliation Officer of the area concerned irrespective of the fact whether 256
a dispute was pending before a Board, Tribunal or an Adjudicator.
This Order was superseded by a fresh Order
made in 1954.
The scheme of the Order made in 1954 was similar
to the scheme of the Order made in 1951. Disputes could be referred under this
Order to the Conciliation Board which was to consist of the Conciliation
Officer appointed by the State Government and two members-"one
representing each of the parties to the dispute-appointed by the Conciliation
Officer on the recommendation of the parties. The function of the Board was to
prepare a memoratidum of a settlement, if any, reached before the Board or to
report about the failure to bring about a settlement, but it had no power to
make an award. By cl. 24 the Tribunal or the Adjudicator, but not the Board nor
the Conciliation Officer, were vested with certain powers as were vested in the
Civil Courts under the Code of Civil Procedure, 1908, such as summoning and
enforcing the attendance of witnesses requiring the discovery and production of
documents, issuing commissions in the examination of witnesses and inspection
of any property or thing. Clause 29 (omitting the proviso thereto which is not
material) was enacted as follows :"During the pendency of any conciliation
proceedings or proceedings before the Tribunal or an Adjudicator in respect of
any dispute and where sub-clause (3) of clause 5 applies, for a further period
of 30 days (excluding holidays but not annual vacations observed by courts
subordinate to the High Court), an employer shall not(a) alter to the prejudice
of the workmen concerned in such dispute the conditions of service applicable
to them immediately before the commencement of such proceedings, or 257 (b)
discharge or punish, whether such punishment is by dismissal or otherwise, any
workman concerned in such dispute, save with the express permission in writing
of a Conciliation Officer of the area concerned, irrespective of the fact
whether the dispute is pending before a Board or the Tribunal or an Adjudicator
;" The scheme of the Order made by the Governor in 1954 was substantially
the same as the Order which was promulgated in year 1951. The Conciliation
Officer who was to be appointed by a Notification under cl. 2 by the State
Government had two-fold functions. He was a member of the Conciliation Board
and he functioned in that capacity under cls. 4, 5, 6 and 7 for the purpose of
bringing about an amicable settlement of dispute. Authority to entertain
applications submitted to the Conciliation Officer about an industrial dispute,
existing or apprehended and to constitute a Conciliation Board were
administrative duties in hi s capacity as a member of the Conciliation Board.
His power independently of the Board wag invested in him only by cl.
29. The true nature of an order made by a
Conciliation Officer under cl. 23 of the Order promulgated in 1951-and which
was in terms substantially the same as cl. 29 of the 1954 Order., was examined
by this Court in Athenian West & Co. Ltd. v. Suti Mill Mazdoor Union(1)
where Bhagwati, J., announcing the judgment of the Court observed :
"'It is clear that clause 23 imposed a
ban on the discharge or dismissal of any workman pending the enquiry of an
industrial dispute before the Board or an appeal before the Industrial Court
and the employer, his agent or manager' could only discharge or dismiss the
workman with the written permission of the Regional Conciliation Officer x x x
concerned.
Even if such written permission (1)[1953] S.
C. R. 780.
258 was forthcoming the employer, his agent
or manager might or might not discharge or dismiss the workman and the only
effect of such written permission would be to remove the ban against the
discharge or dismissal of the workman during the pendency of those proceedings.
The Regional Conciliation Officer x x x concerned would institute an enquiry
and come to the conclusion whether there was a prima facie case made out for
the discharge or dismissal of the workman and the employer, his agent or
manager was not actuated by any improper motives or did not resort to any
unfair practice or victimisation in the matter of the proposed discharge or
dismissal of the workman. But he was not entrusted, as the Board or the Industrial
Court would be, with the duty of coming to the conclusion whether the discharge
or dismissal of the workman during the pendency of the proceedings was within
the rights of the employer, his agent or manager. The enquiry to be conducted
by the Regional Conciliation Officer x x x x x concerned was not an enquiry
into an industrial dispute as to the non-employment of the workman who was
sought to be discharged or dismissed; which industrial dispute would only arise
after an employer, his agent or manager discharged or dismissed the workman in
accordance with the written permission obtained from the officer concerned.
This was the only scope of the enquiry before the Regional Conciliation Officer
x x x x x x concerned and the effect of the written permission was not to
validate the discharge or dismissal but merely to remove the ban on the powers
of the employer, his agent or manager to discharge or dismiss the workman
during the pendency of the proceedings. Once such written permission was
granted by him, that order made or direction 259 issued by him was to be final
and conclusive and was not to be questioned by any party thereto in any
proceedings. The only effect of clause 24 (1) was to prevent any party to the
pending proceedings from challenging the written permission thus granted by the
officer concerned. x x x x once the written permission was granted by the
officer concerned, the ban against the discharge or dismissal of the workman
would be removed and the employer, his agent or manager could in the exercise
of his discretion discharge or dismiss the workman but in that event an
industrial dispute within the meaning of its definition contained in section 2
(k) of' the industrial Disputes Act, 1947, would arise and the workman who had
been discharged or dismissed would be entitled to have that industrial dispute
referred to the Regional Conciliation Board for enquiry into the same."
The essential characteristics of a "tribunal' within the meaning of Art.
136 were examined by Mahajan, J., and it was observed that in the Bharat Bank
Ltd. v. Employees of Bharat Bank Ltd.(1) ,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 Article 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." This view was adopted by the
Court in Durga Shankar Mehta v. Thakur Raghuraj Singh(") where Mukherjea,
J., observed : ""it is now well settled by the majority decision of
this Court in the case of Bharat Bank Ltd. v. Employee8 of the Bharat Bank
Ltd.(1) that the expression "'Tribunal" as used in Art. 136 does not
mean the same thing as "'Court" but (1) [1950] S. C. R. 459.
(2) (1955) 1 S. C. R. 267.
260 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 duty to act judicially imposed upon an authority by
statute does not necessarily clothe the authority with the judicial power of'
the State. Even administrative or executive authorities are often by virtue of
their constitution, required to act judicially in dealing with question
affecting the rights of citizens. Boards of Revenue, Customs Authorities, Motor
Vehicles Authorities, Income-tax and Sales-tax Officers are illustrations prima
facie of such administrative authorities, who though under a duty to act
judicially, either by the express provisions of the statutes constituting them
or by the rules framed thereunder or by the implication either of the statutes
or the powers conferred upon them are still not delegates of the judicial power
of the State. Their primary function is administrative and not judicial. In
deciding whether an authority required to act ,judicially when dealing with
matters affecting rights of citizens may be regarded as a tribunal, though not
a court, the principal incident is the investiture of the "trappings of a
court"-such as authority to determine matters in cases initiated by
parties, sitting in public, power to compel attendance of witnesses and to examine
them on oath, duty to follow fundamental rules of evidence (though not the
strict rules of the Evidence Act), provision for imposing sanctions by way of
imprisonment, fine, damages or mandatory or prohibitory orders to enforce
obedience to their commands. The list is illustrative ;
some, though not necessarily all such
trappings will ordinarily make the authority which is under a duty to act
judicially, a 'tribunal'.
Mahajan, J., in Bharat Bank Ltd. v. Employees
of Bharat Bank Ltd.(1) observed at p. 476 (1) (1950) S.C. R. 459.
261 "As pointed out in picturesque
language by Lord Sankey L. C. in Shell Co. of Australia v.
Federal Commissioner of Taxation(1), 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 quasijudicial functions and are
within the ambit of the word "tribunal' in article 136 of the
Constitution. It was pointed out in the above case that a tribunal is pot
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 article 136 tribunals adorned
with similar trappings as Court but strictly not coming within that
definition." Reverting to the Order issued by the Governor of Uttar
Pradesh in 1954 it is manifest that no procedure is prescribed for the
investigation to be made by the Conciliation Officer, under cl. 29. He is not
required to sit in public: no formal pleadings are contemplated to be tendered;
he is not empowered to compel attendance of witnesses, nor is he restricted in
making an enquiry to evidence which the parties may bring before him.' The
Conciliation Officer is again not capable of delivering a determinative
judgment or award affecting the rights and obligations of parties. He is not invested
with powers similar to those of the Civil Court under the Code of Civil
Procedure for eriforcing attendance of (1) [1931] A. C. 273.
262 any person and examining him on oath,
compelling production of documents, issuing commissions for the examination of
witnesses and other matters. He is concerned in granting leave to determine
whether there is a prima facie case for dismissal or discharge of an employee
or for altering terms of employment, and whether the employer is actuated by
unfair motives; lie has not to decide whether the proposed step of discharge or
dismissal of the employee was within the rights of the employer. His order
merely removes a statutory ban in certain eventualities, laid upon the common
law right of an employer to dismiss, discharge or alter the terms of employment
according to contract between the parties. The Conciliation Officer has
undoubtedly to act judicially in dealing with an application under cl. 29, but
he is not invested with the judicial power of the State:
he cannot therefore be regarded as a
'tribunal' within the meaning of Art. 136 of the Constitution.
We are not in this case called upon to decide
whether the proceeding for a writ may lie under Art. 226 of the Constitution
before a competent High Court against the order of the Conciliation Officer. We
are concerned only to deal with the limited question whether he is a 'tribunal'
within the meaning of Art. 136 of the Constitution having the attributes of the
investment of the judicial powers of the State. It may be pertinent to note
that provisions similar to cl. 29 of the Order issued under the U. P. Industrial
Disputes Act, 1947, are to be found in s. 33 of the Industrial Disputes Act,
1947. By virtue of s.33 an employer during the pendency of any conciliation
proceeding before a Conciliation Officer or a Board or of any proceeding before
a Labour Court or Tribunal or National Tribunal in respect of an industrial
dispute is prohibited save with the express permission in writing of the
authority before which the proceeding is pending, from altering to the prejudice
of the workmen concerned in such a disputes the 263 conditions of service
applicable to them immediately before the commencement of the proceeding and
from discharging or punishing, whether by dismissal. or otherwise, any workman
concerned in such dispute for any misconduct connected with the dispute. Both
the enactments place restrictions upon the power of the employer to terminate
employment during the pendency of a dispute in which the employer and employee
are concerned, and which is pending before a statutory authority. But whereas
under cl. 29 the power to grant permission is exercisable only by the
Conciliation Officer, the power under s . 33 is exercisable by the authority
before whom the proceeding is pending. Section 33-A of the Industrial Disputes
Act provides, in so far as it is material, that "'where an employer
contravenes the provisions of section 33 during the pendency of proceedings
before a Labour Court, Tribunal or National Tribunal, any employee aggrieved by
such contravention, may make a complaint in writing, in the prescribed mariner
to such Labour Court, tribunal or National Tribunal and on receipt of such
complaint that Labour Court, Tribunal or National Tribunal shall adjudicate
upon the complaint as if it were a dispute referred to or pending before it, in
accordance with the provisions of this Act and shall submit its award to the
appropriate Government and the provisions of this Act shall apply accordingly".
Contravention by an employer of the provisions of s. 33 when the proceeding is
pending before the Conciliation Officer or the Board does not attract s.
33-A and does not make it an industrial
dispute capable of being adjudicated upon in accordance with the provisions of
s. 33-A. Action taken by an employer during the pendency of conciliation
proceedings contrary to s. 33, may therefore sustain a claim for adjudication,
only if the dispute arising there under be referred by the appropriate
Government to an Industrial Tribunal. For breach of s. 33 of the Industrial
Disputes Act, or cl. 29 of the Order by the Governor of U. P. no 264 penalty
may be imposed by the Conciliation Officer. It is thus manifest that the
Conciliation Officer does not hold the status of an industrial tribunal in
exercising powers under s. 33 of the Industrial Disputes Act or cl. 29 of the
U.P. Order. It must therefore be held that an appeal under Art. 136 of the
Constitution to this Court is not competent against the direction given by the
Conciliation Officer' exercising power under cl. 29 of the Order issued by the
Governor of U. P. under the U. P. Industrial Disputes Act, 1947.
The question whether an appeal lay to the
Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal)
Act, 48 of 1950, does not present much difficulty in its solution. By s. 4 of
Act 48 of 1950, the Central Government is authorised to constitute Labour
Appellate Tribunals for hearing appeals from the awards or decisions of
industrial tribunals in accordance with the provisions of the Act; an
'Industrial Tribunal' is defined in s. 2 (c) as meaning"(i) any Industrial
Tribunal constituted under the Industrial Disputes Act, 1947 (XIV of 1947); or
(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 made, 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; or (iii)in
relation to other cases, where no appeal lies under any law referred to in subclause
(ii), any court, board or other authority set up in ;any State under such
law," 265 Conciliation Officer functioning under cl. 29 is not an
Industrial Tribunal constituted under the Industrial Disputes Act, 1947, his
authority being derived from the appointment made by the' State of Uttar
Pradesh under the U.
P., Industrial Disputes Act, 1947. Nor is any
provision made in the U. P. Industrial Disputes Act, 1947, or Orders made there
under for an appeal to any similar authority against the direction made by the
Conciliation Officer in exercise of the power conferred under cl. 29. An appeal
lies under s. 4 of the Act.48 of 1950, against the direction of a Conciliation
Officer only if he is a Court or Authority. The Legislature has used in cl.
(iii) the expression "any court, board or other authority"; the
context indicates that the word "other authority' must be read ejuadem
generis with Court or Board. The right to appeal conferred by s. 4 is only
against awards or decisions, and a Conciliation Officer makes no award, nor
even a decision. His function is not to deliver a definitive judgment affecting
the rights of the parties before him. He is not invested with power to
adjudicate industrial disputes. It is true that he is constituted under a
statute which relates to adjudication of industrial disputes, but his functions
are purely incidental to industrial adjudication. His power is not of the same
character as that of an Industrial Court or Board or Tribunal. In our view an
'authority' under s. 2 (cl (iii) to be an industrial tribunal must be a body constituted
for the purpose of adjudication of industrial disputes under a law made by a
State. The Conciliation Officer not having been invested with any such power,
he cannot be regarded as an" "authority" within the meaning of
s. 2(c) (iii) of the Industrial Disputes (Appellate. Tribunal) Act. The Labour
Appellate Tribunal has consistently held, and we think rightly, that an appeal
against the order of a Conciliator is not maintainable under s. 4 of the
Industrial Disputes (Appellate Tribunal) Act, vide Sassoon & Alliance Silk
Mills Co. Ltd v. Mill Mazdoor Sabba (1)[1955] 1 L.L. J. 70.
266 Both the appeals therefore fail and are
dismissed with costs. There will be one hearing fee.
Appeals dismissed.
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