# THE BHARAT BANK LTD., DELHI v. EMPLOYEES OF THE BHARAT BANK LTD

- **Citation:** [1950] 1 S.C.R. 459
- **Court:** Supreme Court of India
- **Decided:** 1950-01-01
- **Case number:** Civil Appeal No. XXXIV of 1950
- **Bench:** SHRI liARILAL KANIA C.J, Saiyid Fazl Ali, Patanjali Sastr, Mehr Chand Mahajan, M Ukherjea J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-bharat-bank-ltd-delhi-v-employees-of-the-bharat-bank-ltd-134
- **Pages:** 61

## Headnote

Conititution of In&ia, A.rt. 136-Siiprc~ Court-Appellate
Jurisdiction-Award of Industri~ Tribw1al-Whether appealablel950
Pritam Singh
V;
The Stal<J
Fa:t .UiJ.
1950
May 26.
SUPREME COURT REPORTS
(1950]
1950
Applicatio1' f<Yr special leave-Maintainability-Nai!tre of functiois
of Industrial. Tribmial-Industrial Di•putes Act, 19'17, ss. 8, 16Bhural Ba"k Ud. Case heard by Bench of three memb,rs.
v.
Held
per KANIA C.J., FAZL ALI,
and
MAHAJAN J,T,
Bh~;!loi::=~ 'f.d. (MUKHERJEA and PATANJALI SASTRI J.J. dissenting).-The functions and duties of the Industrial Tribunal constituted under the
Industrial Disputes Act, 1947, are very much like those of a body
discharging judicial functions although it is not a Court, and under
Art. 136 of the Constitution of India the Supreme Court has
jurisdiction to entertain an application for leave to appeal ft·om
a decision of the Tribunal, even though It will be very reluctant
to entertain such an application. ·
Ka~ia C.J.
Per 'MUKHERJEA J. (PATANJALI SASTRI J. concurring).-An
Industtial Tribunal functioning under the Industrial Disputes Act
is not a judicial tribunal. The nature of the i!eterminations made
by it and the materials and considerations on which it has to decide
a dispute are also such that the powers of an appellate court cannot
be exercised fully and effectively in respect of them and such
determinations are therefore ontside the pur\'iew of Art. 136 of
·the Constitntion. Even assuming that the Court had jurisdiction
to entertain an appeal, 'the present case was not a fit one for enter~
taining an appeal from the determination of the Tribunal.
[On the merits KANIA C.J., FAZL ALI, PATANJALI SASTRI and
MUKHERJEA, JJ. were of opinion that there was no ground for
admitting the appeal.
MAHAJAN J. was of opinion that the award
was bad and must be set aside.)
APPELLATE
JURISDICTION:
Civil Appeal No.
XXXIV of 1950.
Appeal by special leave from an Award of the
All-Ind1a Industrial Tribunal (Bank Disputes) Bombay, dated 1st January, 1950. The facts of the case
are set out in the judgment.
Dr. Bakshi Tek Chand (Veda Vyas and S. K.
Kapur, with him) for the appellant.
B. Sen for the respondents.
Alladi Krishnaswami Aiyar (Jindra Lal, with him)
for the Union of India.
1950. May 26. The Court delivered judgment as
follows:-'
KANIA C.J- I have read the judgments prepared
by Messrs. Fa1ll Ali, Mahajan and Mukherjea JJ.
S.C.R.
SUPREME COURT REPORTS
461
in this case.
As the views in
those judgments in
1950
respect of the nature of the duties and functions of
the Industrial Tribunal do not
show agreement I Bharat Bank r.u.
consider it necessary to add a few words of my own.
Emf>l;·.ces 01
In my opinion, the functions and duties of the Bharat ia111, cu.
Industrial Tribunal are very much like those of a body
discharging j\;1dicial fuqctions, although it is not -a
/{auia c .f.
Court. The rules framed by the Tribunal require
evidence to be taken and witnesses to be examined,
cross-examined and re-examined. The Act constituting the Tribunal imposes penalties for incorrect statements made before the Tribunal. While the powers
of the Industrial Tribunal in some respects are different from those of an ordinary civil Court and it has
jurisdiction and powers to give reliefs which a civil
Court administering the law of the land (for instance,
ordering the reinstatemwt of a workman) does not
possess in the discharge of its duties it is essentially
working as a judicial body. The fact that its determination has to be followed by an order df the Government which makes the award binding, or that in cases
where Governme_nt is a party the legislature is. permitted to revise the decision, or that the Government is empowered to fix the period of the operat_ion
of the award do not, to my mind, alter the nature
and character of the functions of the Tribunal. Having considered all the provisions of the Act it seems
to me clear that the Tribunal is discharging functions
very near those of a Court, although it is not a Court
in

## Text

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~.C.R.
SUPREME COURT REPORTS
459
a sound basis for invoking the discretion of this Court
in granting special leave.
Generally speaking, this
Court will not grant special leave, unless it is shown
that exceptional and special circumstances exist, that
substantial and grave injustice has been done and that
the case in question presents features of sufficient
gravity to warrant a review of the decision appealed
against. Since the present case does not in our opinion
fulfil any of these conditions, we cannot interfere w.ith
the decision of the High Court, and the appeal must be
dismissed.
Appeal dismissed.
Agent for the appellant: S. P. Varma.
Agent for the respondent: P, A. Mehta.
THE BHARAT BANK LTD., DELHI
v.
EMPLOYEES OF THE BHARAT BANK LTD.,
DELHI
and
THE BHARAT BANK EMPLOYEES' UNION,
DELHI
UNION OF INDIA: INTERVENER.
(SHRI liARILAL KANIA C.J., SAIYID FAZL ALI,
PATANJALI SASTR,I, MEHR CHAND MAHAJAN,
and M UKHERJEA J J.]
Conititution of In&ia, A.rt. 136-Siiprc~ Court-Appellate
Jurisdiction-Award of Industri~ Tribw1al-Whether appealablel950
Pritam Singh
V;
The Stal<J
Fa:t .UiJ.
1950
May 26.
SUPREME COURT REPORTS
(1950]
1950
Applicatio1' f<Yr special leave-Maintainability-Nai!tre of functiois
of Industrial. Tribmial-Industrial Di•putes Act, 19'17, ss. 8, 16Bhural Ba"k Ud. Case heard by Bench of three memb,rs.
v.
Held
per KANIA C.J., FAZL ALI,
and
MAHAJAN J,T,
Bh~;!loi::=~ 'f.d. (MUKHERJEA and PATANJALI SASTRI J.J. dissenting).-The functions and duties of the Industrial Tribunal constituted under the
Industrial Disputes Act, 1947, are very much like those of a body
discharging judicial functions although it is not a Court, and under
Art. 136 of the Constitution of India the Supreme Court has
jurisdiction to entertain an application for leave to appeal ft·om
a decision of the Tribunal, even though It will be very reluctant
to entertain such an application. ·
Ka~ia C.J.
Per 'MUKHERJEA J. (PATANJALI SASTRI J. concurring).-An
Industtial Tribunal functioning under the Industrial Disputes Act
is not a judicial tribunal. The nature of the i!eterminations made
by it and the materials and considerations on which it has to decide
a dispute are also such that the powers of an appellate court cannot
be exercised fully and effectively in respect of them and such
determinations are therefore ontside the pur\'iew of Art. 136 of
·the Constitntion. Even assuming that the Court had jurisdiction
to entertain an appeal, 'the present case was not a fit one for enter~
taining an appeal from the determination of the Tribunal.
[On the merits KANIA C.J., FAZL ALI, PATANJALI SASTRI and
MUKHERJEA, JJ. were of opinion that there was no ground for
admitting the appeal.
MAHAJAN J. was of opinion that the award
was bad and must be set aside.)
APPELLATE
JURISDICTION:
Civil Appeal No.
XXXIV of 1950.
Appeal by special leave from an Award of the
All-Ind1a Industrial Tribunal (Bank Disputes) Bombay, dated 1st January, 1950. The facts of the case
are set out in the judgment.
Dr. Bakshi Tek Chand (Veda Vyas and S. K.
Kapur, with him) for the appellant.
B. Sen for the respondents.
Alladi Krishnaswami Aiyar (Jindra Lal, with him)
for the Union of India.
1950. May 26. The Court delivered judgment as
follows:-'
KANIA C.J- I have read the judgments prepared
by Messrs. Fa1ll Ali, Mahajan and Mukherjea JJ.
S.C.R.
SUPREME COURT REPORTS
461
in this case.
As the views in
those judgments in
1950
respect of the nature of the duties and functions of
the Industrial Tribunal do not
show agreement I Bharat Bank r.u.
consider it necessary to add a few words of my own.
Emf>l;·.ces 01
In my opinion, the functions and duties of the Bharat ia111, cu.
Industrial Tribunal are very much like those of a body
discharging j\;1dicial fuqctions, although it is not -a
/{auia c .f.
Court. The rules framed by the Tribunal require
evidence to be taken and witnesses to be examined,
cross-examined and re-examined. The Act constituting the Tribunal imposes penalties for incorrect statements made before the Tribunal. While the powers
of the Industrial Tribunal in some respects are different from those of an ordinary civil Court and it has
jurisdiction and powers to give reliefs which a civil
Court administering the law of the land (for instance,
ordering the reinstatemwt of a workman) does not
possess in the discharge of its duties it is essentially
working as a judicial body. The fact that its determination has to be followed by an order df the Government which makes the award binding, or that in cases
where Governme_nt is a party the legislature is. permitted to revise the decision, or that the Government is empowered to fix the period of the operat_ion
of the award do not, to my mind, alter the nature
and character of the functions of the Tribunal. Having considered all the provisions of the Act it seems
to me clear that the Tribunal is discharging functions
very near those of a Court, although it is not a Court
in the technical sense of the word.
The next question is whether under 2.rtide 136 the
Court hris jurisdiction to entertain an application for
leave to appeal against the decision of such a body .. It
is not disputed that the Court has power to issue writs
of certiorari and prohibition in re.3pect of the work
of the Tribunal. The
only question is whether
there is a right of appeal also. In my opinion the
wording of article 136 is wide enough to give jurisdiction to the Court to entertain an application for leave
to appeal, although it is obvious that having regard to
the nature of the functions of the Tribunal, this Court
will be very reluctant to entertain such an application.
462
SUPREME COURT REPORTS
[1950]
1950
As regards the merits, I do not think this is a case
Bharat Bank Ud. in which I would admit the appeal.
The aggrieved
parties may apply for redress by adopting other
appropriate proceedings. The appeal therefore should
be dismissed with costs.
v. '
Eu1filoyecs of
Bharat B1111k Ltd.
Fazl AliJ.
F AZL Au J .-The important question to be decided
in this case is whether the present appeal lies at all to
this Court. The question is not free from difficulty,
but on the whole I am inclined to think that the
appeal does lie. It is fully recognized that the scope
of article 136 of the Constitution is very wide, but the
significance of the language used in the section can be
appreciated only by comparing it with the articles
which precede it. Article 132 deals with the appellate
jurisdiction of the Supreme Court in cases involving a
substantial question of law as to the interpretation of
the Constitution, and the words used in that article
are: "appeal. ..... from any judgment, decree or final
order." Article 133 deals with appeals in civil matters
and the same words are used here also. Article 134
deals with appeals iri criminal matters, and the words
used in it are: "appeal.. .... from any judgment, final
order or sentence." In article 136, the words "judgment" and "decree," which are used in articles 132
and 133 are retained. Similarly, the words "judgment"
and "sentence" occurring in article 134 are also
retained. But the expression "final order" becomes
"order," and, instead of the High Court, reference is
made to "any court." Certain other words are also
used in the article which seem to me to have a special
significance, these being "determination," "cause or
matter" and "tribunal." It is obvious that these
words greatly widen the scope of article 136.
They
show that an appeal will lie also from a determination
or order of "any tribunal" in any cause or matter.
Can we then say that an Industrial Tribunal does
not fall within the scope of article 136 ? If we go by
a mere label, the answer must be in the affirmative.
But we have to look further and see what are the main
functions of the Tribunal and how it proceeds to discharge those functions.
This is necessary because
S.C.R.
SUPREME COURT REPORTS
463
I take it to be implied that before an appeal can lie to
1950
this Court frcm a tribunal it must perform some kind Bl
B
k Ud.
1
of judicial function and partake to some extent of the· wrat /n
character of a Court.
Employees of
Now there can be no doubt that the Industrial Bharat Bank ua.
Tribunal has, to use a well-known expression, "all the
C
· ·
·
Fazl Ali J.
trappings of a ourt " and performs functions wh1oh
cannot but be regarded as judicial. This is evident
from the rules by which the proceedings before the
Tribunal are regulated. It appears that the proceeding
before it commences on an application which in many
respects is in the nature of a plaint. It has the same
powers as are vested in a civil Court under the Code of
Civil Procedure when trying a suit, in respect of discovery, inspection, granting adjournment, reception of
evidence taken on affidavit, enforcing the attendance
of witnesses, compelling the production of documents,
issuing commissions, etc. It is to be deemed to be a
civil Court within the meaning of sections 480 and 482
of the Criminal Procedure Code, 1898. It may admit
and call for evidence at any stage of the proceeding
and has the power to administer oaths. The parties
appearing before it have the right of examination,
cross-examination and re-examination and of addressing it after all evidence has been called.
A party may
also be represented by a legal practitioner with its
permission.
.
The matter does not rest there. The main function of this Tribunal is to adjudicate on industrial·
disputes which implies that there must be two or more
parties before it with conflicting cases, and that it has
also to arrive at a conclusion as to how the dispute is
to be ended. Prima f acie, therefore, a Tribunal like
this cannot be excluded from the scope of article 136,
but before any final conclusion can be expressed on the
subject certain contentions which have been put
forward on behalf of the respondents have to be disposed of..
The first contention is that the Industrial Tribunal
cannot be said to perform a judicial or quasi-judicial
function, since it is not required to be guided by
any recognized substantive law in deciding disputes
1950
Bharat Bani: Ud,
v.
E111j,loyees of
Bharat 8.?nk Ud
Faz/ Ali J.
464
SUPREME COURT REPORTS
[1950J
which come before it. On the other hand, in deciding
industrial disputes; it has to override contracts and
create rights which are opposed to contractual rights.
In these circumstances, it is said that the very questions which arose before the Privy Council in Moses v.
Parker, Ex parte 1'1oses (') arise in this case, these
questions being:-
(1) How can the propriety of the Tribunal's
deGision be tested on appeal, and
(2) \Vhat are the canons by which the appellate
Court is to be guided in deciding the
appeal?
Their Lordships of the Privy Council undoubtedly
felt that these were serious questions, but they had no
hesitation in saying that "if it were clear that appeals
ought to be allowed. such difficulties woul_d doubtless
be met somehow." This, in my opinion, i? a sufficient answer to the difficulty raised. The Tribunal has
to adjudicate in accordance with the provisions of the
Industrial Disputes Act. It may sometimes override
contracts, but so can a Court which has to administer
law according to the Bengal or Bihar Moneylenders Act,
Encumbered Estates Act and other similar Acts. The
Tribunal has to observe the provisions of the special
law which it has to administer though that law may
be different from the law which an ordinary Court of
justice administers.
The appellate Court, therefore,
can at least see that the rules <iccortling to which it
has to act and the provisions which are binding upon
it are observed, and its powers are not exercised in an
arbitrary or capricious manner.
The second contention, which is" a more serious
one, is that the ad judicatjQn of the Tribunal has not
all the attributes of a judicial decision, because the
adjudication cannot bind the parties until it is declared
to be binding by the Government under section 15 of
the Industrial Disputes Act.
It is said that the ad- .
judication is really in the nature of an advice or report
which is not effective until made so by the Government. It appears that a similar objection was raised
in Rexv. Electricity Commissioners, London Electricity
(1) (1896] A.O.
2~a.
j
')
v
" -
S.C.R.
SUPREME COURT REPORTS
465
joint Committee Co. (1920) Ex Parte (1 ) for the purpose of deciding whether a writ of certiorari should be
issued in the circumstances of the case but was disposed of in these words :-
"It is neces~ary, however, to deal with what I
think was the main objection of the Attorney-General.
In this case he said the Commissioners come to no
decision at all. They act merely as advisers. They
recommend an order embodying a scheme to the
.Minister of Transport, who may confirm it with or
without modifications. Similarly the Minister of Transport comes to no decision. He submits the order to
the Houses of Parliament, who may approve it with or
without modifications. The Houses of Parliament may
put anything into the order they please, whether consistent with the Act of 1919, or not. Until they have
approved, nothing is decided, and in truth· the whole
procedure, draft scheme, inquiry, order, confirmation,
approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject
to any control by ,the Courts. It is unnecessary to
emphasize the constitutional importance of this contention ......... In the provision that the final decision of
the Commissioners is not to be operative until it has
been approved by the two Houses of Parliament I find
nothing inconsistent with the view that .in arriving at
that decision the Commissioners themselves are to act
judicially and within the limits prescribed by Act of
Parliament, and that the Courts have power to keep
them within those limits. It is to be noted that it is
the order of the Commissioners that eventually takes
effect; neither the Minister of Transport who confirms,
·nor the Houses of Parliament who approve, can under
the statute make an· order which in respect of the
matters in question has any operation. I know of no
authority which compels me to hold that a proceeding
cannot be a judicial proceeding subject to prohibition
or certiorari because it is subject to confirmation or
approval, even where the approval has to .be that of
the Houses of Parliament. The authorities are to the
contrary."
(1) {1924) 1 K.D. 171 .•
1950
Bharat Bank Ud.
v.
Empioy"<'S of
Bharat Ba1ik Ltd.
Faz/ Ali J.
466
SUPREME COURT REPORTS
[1950]
1950
It is well-known that a writ of certiorari can issue
81
-;;- 1, / 1 only against an order of a judicial or <JUasi-judicial
"""' v~'" ,,, . tribunal and if it is permissible for the High Court to
Employees of
issue a writ of certiorari against an Industrial Tribunal,
Bharat Ba"k Ltd. which fact was not seriously disputed before us, I find
Faz1 Afi J.
it difficult to hold that the tribunal does not come within the purview of article 136. If a subordinate Court acts
in excess of its jurisdiction or assumes a jurisdiction
which it does not possess, the appellate Court can
always interfere and do what is contemplated to be
done by a writ of certiorari.
It is to be noted that under section 15 of the Industrial Disputes Act, 1947, in cases where the appropriate Government is not a party to the dispute, aJI
that the Government has to do on receiving the award
of the Tribunal is to declare it to be· binding and to
state from what date and for what period it will be
binding. Section 15·(2) is mandatory and it provides :
"On receipt of such award, the appropriate Government shall by order in writing declare the award to·
be bmding ........ "
Thus the Government cannot alter, or cancel, or
add to the award, but the award must be declared to
be binding as it is. In substance, therefore, the adjudication of the Tribunal amounts to a final determination
of the dispute whiCh binds the parties as well as the
Government.
Our attention was however drawn to the proviso
to section 15 (2), which runs as follows:-
"Provided that where the appropriate Government
is a party to the dispute and in Its opinion it would
be inexpedient on public grounds to give effect to the
whole or any part of the award, it shall on the first
available opportunity lay the award together with the
statement of its reasons for not making a declaration
as aforesaid before the Legislative Assembly of the
Province, or where the appropriate Government is the
Central Government, before the Central Legislative
Assembly, and shall, as soon as may be, cause to be
moved therein a resolution for the consideration of the
S.C.R.
SUPREME COURT REPORTS
467
award, and the Legislative Assembly may. by its resolution, confirm, modify, or reject the award."
. This proviso was relied upon by the respondents
to show that the right to appeal from the award could
not have been contemplated in any case. But the Act
itself makes a distinction between cases in which the
Government is a party and those in which the Government is not a party.
The proviso relates to a very
special type of case and as at present advise~ I do not
wish to express any opinion as to whether an appeal
lies to this Court or not in such a case, but, in my
judgment, where the Government has only to declare
the award to be binding, an appeal shall lie.
It is necessary here to say a few words as to the
scope of the appeal. As was pointed out by this Court
in Pritam Singh v. The State (1), the power under
article 136 of the Constitution being a special power is
to be exercised only in special cases. The rule so laid
down is bound to restrict the scope of the appeal in
practice in almost all the cases which fall under article
· 136. . But in some cases a limitation will be imposed
on the scope of the aP.peal by the very nature of the
case and of the tribunal from which an appeal is
sought to be brought, and a case under the Industrial
Disputes Act seems to be an example of such a case.
Dealing now with the merits of the appeal, I am
not prepared to h9ld that this is· a proper case for
interference with the adjudication of the Tribunal.
The pow.er of this Court was invoked by the appellants
on four grounds .. These grounds have been elaborately
examined by Mahajan J. and two of them have been
pronounced to be wholly inadequate for justifying om:
interference. My view with regard to these two grounds
is identical with that of Mahajan J. and I do not wish
to add to ~hat he has already said· on the subject.
The remaining two· grounds also are, in my opinion,
wholly insufficient to justify the exercise of our special
power under article 136. One of these grounds is that
the award of the Tribunal - is based on no evidence
whatsoever. I do not, however, find that this ground
(1) (1950] S.C.R. •ss.
60
1950
Bha1·at lJanh l.ld
v.
E111p/oyc•s of
Bltaraf Rani: Uri
Faz/ Ali J.
468
SUPREME COURT REPORTS
[1950]
1950
was urged in this form in the application for special
Bl
H
k Ud leave to appeal to this Court. All that was intended to
iarat
an
,
h
v
be urged wast at the appellants wanted to adduce
Empzo;ees of
evidence but were not allowE!d to do so.
From fhe
Bha"" Hank ua decision of the Tribunal however, it appears that the
evidence that was shut out related to one isolated point
Faz! AhJ.
only and the Tribunal might well have been justified
in not allowing evidence to be admitted on a point
which in its opinion had no direct bearing on the issue
before them. After hearing the respondents on this
particular point, I am not disposed to hold that the
Tribunal has committed such an error as would justify
the interference of this Court.
The last ground urged is that the award has been
signed by only two members of the Tribunal though
it originally consisted of three persons and though the
entire hearing of the dispute had taken place before
all the three persons. This objection does not appear
to me to be fatal to the jurisdiction of the Tribunal,
because under section 8 of the Act it is not obligatory
on the Government to appoint a new member to fill a
vacancy if one of the members ceases to be available
at any time during the proceedings. Under that section,
if the Chairman ceases to be available, the Government
must appoint his successor, whereas if a member ceases
to be available the Government may or may not appoint any one to fill his place.
[n the present case,
our attention was drawn to some correspondence which
shows that one of the members was called upon to act
as.a member of another Tribunal and the award in
question was pronounced after informing the Govern-
·ment of the procedure which the Chairman and the
remaining members intended to adopt.
In the view I have taken, this appeal must fail,
and I would accordingly dismiss it with costs .
• '1ahajanJ.
MAHAJAN J.-This is an appeal by special leave
from the determination of an industrial dispute by the
Industrial . Tribunal appointed under Ordinance VI
of 1949.
Bharat Bank Limited,· Delhi, the appellant, is a
company registered under the Indian Companies Act.
S.C.R.
SUPREME COURT REPORTS
469
Its employees made certain demands and as a result
1950
of an unfavourable response from the bank it appears Bl
-B
k
k
th 9 h M
h 19 9
Th
1arat
ank Ucl.
that they struc wor
on
e
t
arc ,
4 .
e ,
v.
bank in its turn served notices on them to resume
E111p1oy.-cs of
work and .proceeded to discharge a number of them Bharat Bank IM.
between the 19th March and 24th March as they failed
--:-
to do so. The Central Government constitued a TriMalia;m• J.
bunal consisting of three persons for the adjudication
of industrial disputes in banking companies under
section 7 of the Industrial Disputes Act (XIV of 1947).
The disputes mentioned in schedule II of the notification were referred under section 10 of the Act to this
Tribunal. Item 18 of this schedule reads as follows:-
, 'Retrenchment and victimization (Specific cases
to be cited by employees)."
The dispute under this item between the Bharat
Bank and its employees was heard by the Tribunal at
Delhi and its award was made on the 19th January,
1950. It was published in the Government of India
Gazette dated 4th February, 1950, and was declared
to be binding for a period of one year. The award of
the Tribunal was signed by two out of its three members.
A preliminary objection ·was raised on behalf of
the Central Government as well as on behalf of the
respondents that this Court had no jurisdiction to grant
special leave to appeal against the determination of an
Industrial Tribunal inasmuch as it did not exerdse
the judicial powers of the State and that its determination was not in the nature of a judgment, decree
_'or order-of a Court so as to be appealable. This being
the first case in_which special leave was granted from
the_ determination of an Industrial Tribunal, it is necessary Jo examine the provisions of the Constitution
dealing with this matter and if possible, to define the
limits.of the juri,sdicUon of this Court under article 136.
This article.is in th,ese terms :-
" (1) Notwithstanding anything in this Chapter,
the Supreme Court may, in its discretion, grant special
leave to appeal f.rom any judgment, decree, determination, sentence or order in any cause or matter passed
1950
470
SUPREME COURT REPORTS
[1950]
or made by any court or tribunal in the territory of
India.
l hart1t Ban!i Ud.
v.
(2) Nothing in clause (1) shall apply to any
Jomployees of
judgment, determination, sentence or order passed or
Btwat Bank Ltd. made by any court or tribunal constitutj!d by or
under any law relating to the Armed Forces."
The article occurs in Chapter IV of Part V of the
Co11stitution: "The Union Judiciary." Article 124
deals with the establishment and constitution of the
Supreme Court. Article 131 confers original jurisdiction
on this Court in certain disputes arising between the
Government of India and the States etc.
Articles 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 article 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 this Court has been made a Court
of criminal appeal under article 134. It could only
entertain appeals on the criminal side in exercise of the
prerogative of the King.
Article 135 empowers this
Court to hear all appeals which under existing laws
could be heard by the Federal Court of India. By the
Abolition "of 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 wheth11r thos.e 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 Viet., 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
article 135 which confers all the powers of the Judicial
Committee on the Supreme Court comes article 136.
The language employed in this article is very wide
and is of a comprehensive . character. Powers given
..: .
S.C.R;
SUPREME.COURT REPORTS ..
471·
-
' .
.
are of an overriding nature.
Th~ .. article commences·
1950
· with.the words "Notwithstanding anything in this 8 J,
at-;; k ua·
Chapter." These words indicate that the intention of
ar v":n . ·
the Constitution was to disregard in extraordinary · EmpZoym of
cases the limitations contained in the previous articles Bharat Bonk u.1. ·
-0n this· Court's power to entertain appeals. These
articles dealt with the right of appeal against final.
Mahajan J.
decisions of.High_ Courts within the territory of India.·
Article 136, however, .overrides that qualification and·
empowers this Court to grant special leave even in cases
.. where the judgment has not been given by- a High
· Court but ha~ 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 l:iw in the nature of an appeal,·
etc. The .word"order" in ·article 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 article 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 Act; where the phrase used was "a Court:
-of justice."- It is the introduction of this new expression in article 136 .that has led to considerable argu- ·
ment as to its scope. Another expression . that did not :
find place in theJudiciaI Committee Act but has been ·
introduced in article 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 ·
this Court all orders of tribunnls 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 ·
1950
Bharat Batik Ltd,
v.
EnijJloyees. of
Bharat Bank Ltd.
472
SUPREllIE COURT REPORTS
(1950]
the intention was that if a tribunal exercised the judicial powers of the State and the decision was passed in
the exercise of that power, this Court as the highest
judicial Court in the Republic would have power, if it
considered, necessary in the ends of justice, to grant
special leaYe.
Clause (2) of article 136 excludes the
jurisdiction of this Court in. respect of military Courts
or Tribunal.
It is interesting to observe that in
articles 138, 139 and 140 the Constitution has conferred
powers on Parliament for further enlargement of the
powers of this Court.
Two points arise for determination in this case: (I)
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 ad!Jlinistrative, domestic
or quasi-judicial, acts in excess of its jurisdiction,
then it can be controlled by the High Courts under
the powers conferred on them by article 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 by a petition of special leave under article 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 partie§ 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-judicial or administrative powers.
(2) The kinds of orders against which
special leave to appeal could be given under article 136
-
S.C.R.
SUPREME COURT REPORTS
-173
have to be of the same nature as passed by a Court;
1950
in other words, it was said that unless there was a Bhnrat Bank Ud.
judicial determination of a controversy between two
v.
parties, the order would not be appealable.
That in
E:11p1oyccsof
the case of an Industrial Tribunal what gives binding Bharat Bank Ud.
force to the award is the declaration of the government,
that the spark of life to it is given by that declaration
MalzajanJ.
and without that, the award of the Tribunal is lifeless
. and lias 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 co.uld
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 s.uch a
determination is within article 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 this
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 article
136. It was finally argued that powers should be exercised by this Court wherever there is a miscarriage
474
SUPREME COURT REPORTS
[1950]
of justice by a determination of any tribunal
and that if the intention of the Constitution by use of
Bharat Bc:nk Ltd.
v.
the word "tribunal" was in the same sense as "court,"
t950
Emptoy<"CS of
then it was not n.~cessary to import it in article 136,
Bharat Ban« u.i. because all tribunals that exercise judicial functions
AfahafanJ
fall within the definition of the word "court" though
they may not have been so described.
After considerable thought I have reached the conclusion that the preliminary objection should be overruled. I see no cogent reasons to limit the plain words
of the statute and to place a narrow interpretation on
· words of widest. amplitude used therein. In construing the articles of the Constitution it has always to be
remembered that India has been constituted into a
sovereign democratic republic in order to ensure justice
to all its citizens. In other words, the foundations of
this republic have been laid on the bedrock of justice.
To safeguard these foundations so that they may not
be undermined by injustice occurring anywhere this
Court has been constituted. By article 32 of the Constitution the Court is empowered to see that the fundamental rightg conferred on the citizens by the Constitution are not in any way affected.
By article 136 it
has been given overriding power to grant special leava
to appeal against orders of courts and tribunals which
go against the principle of natural justice and lead to
grave miscarriage of justice.
The exercise. of these
powers could only have been contemplated in cases
which affect the rights of people living within the territory of India in respect of their person, property or
status. The question, therefore, for consideration is
whether the jurisdiction conferred by use of unambiguous phraseology and by words which have a plain
grammatical meaning and are of the widest amplitude
should be limited and restricted on considerations suggested by Mr. Alladi. The construction suggested by the
learned counsel, if accepted, would in the first instance
make the use of certain words in the article unnecessary
and redundant and would run counter to the spirit of
the Constitution. It must be presumed that the draftsmen of the Constitution knew well the fact that there
were a number of tribunals constituted in this country
S.C.R.
SUPREME COURT REPORTS
475
previous to the coming into force of the Constit'ution
1950
which were performing certain administrative, quasiniwat Srtnk 1.td.
judicial or domestic functions, that some of them had
v.
even the trappings of a Court but in spite of those
E111ptoym of
trappings could not be given that description. It must Rhal'at llaulc Ud.
:~~r~eolr~~~mf~~ttht~atth~heCo~~~~~~io~~~r~:eri~1 '~~1~~
u,,,:j''" J.
country had held that all tribunals that discharged
judicial functions fell within the definition of the
expression "Court." If by the use of the word
" tribunal " in article 136 the intention was to give it
the same meaning as "Court," then it was redundant
and unnecessary to import it in the article because, by
whatever name described, such a tribunal would fall
within the definition of the word " Court." The word
"Court" has a well-known meaning in legislative
history and practice.
As pointed out in Halsbury's Laws of England,
the word "Court " originally meant the King's Palace
but subsequently acquired the meaning of (1) a place
where justice was administered, and (2) the person or
persons who administer it. In the Indiian Evidence Act
it is defined as including all judges and magistrates
and all persons except arbitrators legally authorized to
take evidence. This definition is by no means exhaustive and has been framed only for the purposes of the
Act. There can be no doubt that to be a Court, the
person or persons who constitute it must be entrusted
with judicial functions, that is, of deciding litigated
questions according to law. However, by agreement
between parties arbitrators may be called upon to
exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a
Court. It appears to me that befo,re a person or persons
can be said to constitute a Court it must be held that
they derive their powers from the State and ii.re exercising the judicial powers of the State. In R. v. London
County Council (1 ), Saville L. J. gave the following
meaning to the word "Court " or " judicial authority":-
(1) [193t) 2 K.B. 215.
61
SUPRE?IIE COURT REPORTS
(1950)
\ ,·
. 1950 '
"It is not necessary tha(it should be a Court in
· .
the sense that this Court is a Court, it is enough if it is
Bharat Bank Lid,
• •
ft
h
·
'd
· d' · 1 f
t'
·
v.
exercising, a er earmg ev1 ence, JU 1c1a
unc 10ns 1n
Employees of
the sense that it has to decide 'on evidence between a
Bharat Bank u,l proposal and an opposition; and it is not necessary to
·
· be strictly a Court if it is a tnbunal which has to
Mahajan J. I decide rightly after hearing evidence and opposition."
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, set exercise
quasi-judicial 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
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 sub- ·
jects 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. . Various
· definitions of the phrase "judicial power" have been
given from time to time.
The best definifion of it on
high authority is the one given by Griffith C.J. in
Huddart, Parker G 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
(I) [1931] A.C. 275.
(2) 8 C.L.R. 330, 357.
•
\
S.C.R.
SUPREl\IE CllURT REPORTS==
· 477
.,
until some tdbuual which has po\ver_ to give a binding
1950
and authoritative decision (whether subject to appeal Bharat Bank Ud.
or not) is called upon to take action."
v.
It was conceded that a tribunal constituted under
Emproyus of
the Industrial Disputes Act, 1947, exercises quasiBharat Bank u,1.
]. udicial ·powers. That phrase implies that a certain
-
l.Iahajanj.
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 "quasijudicial" in the case of Cooper v. TVilson ( 1 ) ..