# THE UNITED COMMERCIAL BANK LTD v. THEIR WORKMEN

- **Citation:** [1951] 1 S.C.R. 380
- **Court:** Supreme Court of India
- **Decided:** 1950-02-20
- **Case number:** Civil Appeals Nos. 35 to 50of1951
- **Bench:** Shri Harilal Kania C.J, SA!YID FAZL Au, Patanjali Sastri, Mehr Chand Mahajan, Mukherjea: S.R. Das, Vivian Bose Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-united-commercial-bank-ltd-v-their-workmen-91
- **Pages:** 51

## Headnote

Industrial Disputes Act (XTV of 1947), ss. 7, 8, 12, 16-Rules
under the Act, R. 5-Constitution of Tribunal of three membcrsAbsence of one of three members on other duty-Absent member
rejoining after some time-Validity of awards made during his
absence by the two remaining members, and by all of them after
he rejoined-Construction and effect of ss. 7, 8, 12 and Rule ~.
The Central Government constituted an Industrial Tribunal
under the Industrial Disputes Act, 1947, consisting of A, B, and C
S.C.R.
SUPREME COURT REPORTS
381
for deciding certain disputes and the Tribunal commenced its
19111
sittings in September, 1949. On the 23rd Novem\)er, 1949, the
services of C were placed at the disposal of the Ministry of
Thi United
External Affairs as a member of the Indo-Pakistan Boundary
Commercial
Disputes Triounal, and the two remaining members, after an obBanlc Ltd.
jection raised by one side, continued to sit and hear the disputes.
v.
On the 20th February, 1950, C returned from the Boundary Their Workm<in.
Disputes Tribunal and began to sit again with the other
two members and hear the further proceedings in the case
of disputes which were part heard and not finally decided
on that date. On the 20th May, 1950, the Government issued a
notification that C had " resumed charge of his duties as a member of the All India Indu!itrial Tribunal". Some awards were
made by A and B before the 20th February, 1950, and some
awards were made after that date by A, Band C together.
Held, per KANIA, C. J., MEHR CHAND MAHAJAN, DAS and
BOSE JJ. (FAZL ALI and PATANJALI SASTRI JJ. dissenting):-
(i) when C was appointed as a member of the Boundary
Disputes Tribunal, his services "ceased to be available" and
there arose " a vacancy " within the meaning of Sec. 8 of the
Industrial Disputes Act ;
(ii) under the said section read with Rule 5 of the Industrial
Disputes Rules, when a vacancy occurred· it was obligatory on
the Government to notify its decision as to whether it intended
to fill up the vacancy or not, and if the Government decided
not to fill up the vacancy, a notification under Sec. 7 of the
Act was essential to constitute the
remaining members a
Tribunal inasmuch as a Tribunal of three members is a different
Tribunal altogether from a Tribunal consisting of two of them
only;
(iii) neither the fact that C began to sit again along with the
two other members from the 20th February, 1950, nor the notification of the 20th May, 1950, stating that Chad "resumed charge
of his duties as a member" of that Tribunal could be treated as
an appointment to the vacancy created on C's appointment as a
member of the Boundary Disputes Tribunal;
(iv) awards made by A and B after the services of C ceased
to be available, and awards made after the 20th February, 1950,
by A, B and C were not made by a Tribunal duly constituted
under the Act and were void ;
(v) since the two remaining members were not a duly con·
stituted Tribunal and the duty to work and decide was the joint
respomibility of all the three members who originally constituted
the Tribunal, the matter was one of absence of jurisdiction and
not a mere_irregularity in the conduct of proceedings, and the
defect could not be cured by acquiescence or estoppel.
382
SUPREME COURT REPORTS
[1951)
1951
PerFAzLALiandPATANJALI SASTRI}J. (contra)-There was
a ' vacancy ' within the meaning of Sec. 8 of the Act when the
The Unittd
services of C were placed at the disposal of the Boundary Disput.es
Commercial
Tribunal, \Vhich provided an occasion for the Government to
Bank Ltd.
exercise the discretion vested in it under Sec. 8 of the Act to fill
v,
up the vacancy or not. The fact that the Government decided not
Their Workmen. to fill up the vacancy, could not render the Tribunal an imperfectly constituted Tribunal, and the proceedings could validly be
continued before the Tribunal in spite of the vacancy. Fnrther,
since the vacancy was a temporary one and was not filled np, C
did not cease to be a member of the Tribuna

## Text

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380
SUPREME COURT REPORTS
[1951)
1051
of the village, their rights under the custom should
Ram Doon LU r.ev~ve as soon as. the rive~ come~ .down within the
amt other.
limits of mouza S1kha. This position certainly has
v.
got to be admitted but as we are concerned with the
Radh' Sham state of affair£ existing at the date of the institution of
and Other•.
the suit and there is no evidence on the record as to
the position of the river at the present moment, the
J1.ukherjea J,
1951
AJ>Til 9.
plaintiff will be entitled to a decree in the form as it
was given by the trial judge, it being clearly understood that the rights declared in this suit would be
subject to the custom of Dhrtr Dhura which the defendants may invoke if and when the proper occasion arises.
Subject to this observation, we allow the appeal and
restore the judgment of the trial judge.
The plaintiff
No. I wiJI be entitled to his costs.
Appeal allowed.
Agent for the appellants: R. S. Narula.
Agent for the respondents : Tarachand Brijmohan
Lal.
THE UNITED COMMERCIAL BANK LTD.
v.
THEIR WORKMEN
(and other cases)
UNION OF INDIA-Intervener.
[SHRI HARILAL KANIA C.J ., SA!YID FAZL Au,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
MUKHERJEA: S.R. DAS and VIVIAN BOSE JJ.J
Industrial Disputes Act (XTV of 1947), ss. 7, 8, 12, 16-Rules
under the Act, R. 5-Constitution of Tribunal of three membcrsAbsence of one of three members on other duty-Absent member
rejoining after some time-Validity of awards made during his
absence by the two remaining members, and by all of them after
he rejoined-Construction and effect of ss. 7, 8, 12 and Rule ~.
The Central Government constituted an Industrial Tribunal
under the Industrial Disputes Act, 1947, consisting of A, B, and C
S.C.R.
SUPREME COURT REPORTS
381
for deciding certain disputes and the Tribunal commenced its
19111
sittings in September, 1949. On the 23rd Novem\)er, 1949, the
services of C were placed at the disposal of the Ministry of
Thi United
External Affairs as a member of the Indo-Pakistan Boundary
Commercial
Disputes Triounal, and the two remaining members, after an obBanlc Ltd.
jection raised by one side, continued to sit and hear the disputes.
v.
On the 20th February, 1950, C returned from the Boundary Their Workm<in.
Disputes Tribunal and began to sit again with the other
two members and hear the further proceedings in the case
of disputes which were part heard and not finally decided
on that date. On the 20th May, 1950, the Government issued a
notification that C had " resumed charge of his duties as a member of the All India Indu!itrial Tribunal". Some awards were
made by A and B before the 20th February, 1950, and some
awards were made after that date by A, Band C together.
Held, per KANIA, C. J., MEHR CHAND MAHAJAN, DAS and
BOSE JJ. (FAZL ALI and PATANJALI SASTRI JJ. dissenting):-
(i) when C was appointed as a member of the Boundary
Disputes Tribunal, his services "ceased to be available" and
there arose " a vacancy " within the meaning of Sec. 8 of the
Industrial Disputes Act ;
(ii) under the said section read with Rule 5 of the Industrial
Disputes Rules, when a vacancy occurred· it was obligatory on
the Government to notify its decision as to whether it intended
to fill up the vacancy or not, and if the Government decided
not to fill up the vacancy, a notification under Sec. 7 of the
Act was essential to constitute the
remaining members a
Tribunal inasmuch as a Tribunal of three members is a different
Tribunal altogether from a Tribunal consisting of two of them
only;
(iii) neither the fact that C began to sit again along with the
two other members from the 20th February, 1950, nor the notification of the 20th May, 1950, stating that Chad "resumed charge
of his duties as a member" of that Tribunal could be treated as
an appointment to the vacancy created on C's appointment as a
member of the Boundary Disputes Tribunal;
(iv) awards made by A and B after the services of C ceased
to be available, and awards made after the 20th February, 1950,
by A, B and C were not made by a Tribunal duly constituted
under the Act and were void ;
(v) since the two remaining members were not a duly con·
stituted Tribunal and the duty to work and decide was the joint
respomibility of all the three members who originally constituted
the Tribunal, the matter was one of absence of jurisdiction and
not a mere_irregularity in the conduct of proceedings, and the
defect could not be cured by acquiescence or estoppel.
382
SUPREME COURT REPORTS
[1951)
1951
PerFAzLALiandPATANJALI SASTRI}J. (contra)-There was
a ' vacancy ' within the meaning of Sec. 8 of the Act when the
The Unittd
services of C were placed at the disposal of the Boundary Disput.es
Commercial
Tribunal, \Vhich provided an occasion for the Government to
Bank Ltd.
exercise the discretion vested in it under Sec. 8 of the Act to fill
v,
up the vacancy or not. The fact that the Government decided not
Their Workmen. to fill up the vacancy, could not render the Tribunal an imperfectly constituted Tribunal, and the proceedings could validly be
continued before the Tribunal in spite of the vacancy. Fnrther,
since the vacancy was a temporary one and was not filled np, C
did not cease to be a member of the Tribunal and could therefore
rejoin it as soon as he was free from the duties of his new office.
Even if it be assnmed that it was necessary for the Government
to make an appaintment under Sec. 8 (1), the requirements of
that section were complied with, when C joined under the orders
of the Government and that fact was also notified by the Government on the 20th May, 1950. Rnle 5 of the Industrial Disputes
Rules applies only when a Tnbunal is initially constituted. It
does not apply to appointments to fill vacancies.
Per MuKHERJliA J .-An Industrial Tribunal can be constituted only in accordance with the provisions of Sec. 7 of the Industrial Disputes Act and unless a Tribunal is properly constituted,
it cannot be invested with jurisdiction to adjudicate on industrial
disputes. Under snb-sec. (2) of Sec. 7, the number of members
constituting the Tribunal has to be determined by the appropriate
Government and a change in the number of members could be
made therefore only in pursuance of the provision contained in
that sub-section. As Sec. 8 does not lay down that, in case
the services of a member of the Tribunal cease to be available
and the Government does not choose to make a new appointment in his place, the remaining members should continue to
form the Tribunal, the constitution or reconstitution of the
remaining members as a Tribunal could be made only under Sec. 7
of the Act and as there was no notification by the appropriate
Government under Sec. 7 constituting the two remaining members
a Tribunal under the Act during the absence of C, the proceedings
before these two members and the awards made and signed by
them ouly during C's absence were void. But, there was no
necessity for a fresh notification and a fresh constitution of the
Tribunal when the absent member returned as the original notification was still there unaltered and unamended, and by virtue of
this notification alone, the three members would be competent to
sit as a Tribunal and discharge its duties. The Tribunal was
thefore, properly constituted from the 20th February; 1950, and
the awards made by all the three members after that date were
not void for want of jurisdiction in the Tribunal.
CIVIL
APPELLATE
JURISDICTION:
Appeals
by
special leave against an Award dated 31st July, 1950,
S.C.R ..
SUPREME COURT REPORTS
383
of the All India Industrial Tribunal (Bank Disputes) :
1901
Civil Appeals Nos. 35 to 50of1951. The facts of the
TM Unit«I
case and the arguments of Counsel appear in the
commercial
judgment.
Bank Ltd.
C. K. Daphtary ·(R. ]. Kolah, with him) for the Th . .;· k
appellanti in Civil Appeals Nos. 35, 36 and 37.
eir
0
' :mon.
]amshedji Kanga (R.]. Kolah, with him) for the
appellant in Civil Appeal No. 38.
S. Chaudhuri (G. C. Mathur, with him) for the
appellants in Civil Appeals Nos. 41, 43, 44, 45, 46
and 49.·
S:Chaudhuri (S.N. Mukherjee, with him) for the
appellants in Civil Appeals Nos. 48 and 50.
R. ]. Kolah, for the appellants in Civil Appeals
Nos. 39, 40 and 42.
Ram Lal Anand (Charan Das Pu_ri, with him) for
the appellant in Civil Appeal No. 47.
A.C. Gupta (M.M. Sen and R.K. Banerji, with him)
for the respondents in Civil Appeals Nos. 35, 36, 40,
41, 42, 43 and 44.
M.M. Sen for the respondents in Civil Appeals
Nos. 37, 39, 45 and 46.
Niren be (B.K. Chaudhury, with him) for the respondents in Civil Appeals Nos. 38 and 50.
T. R. Bhasin for the respondents in Civil Appeals
Nos. 48 and 49.
M. C. Setalvad, Attorney-General for India, (S. M.
Sikri, with him) for the Intervener (Union of India)
in Civil Appeal No. 35.
1951. April 9. The judgment of Kania C.J, Mehr
Chand Mahajan, S. R. Das and Vivian Buse J]. was
delivered by Kania C.J.,. Fazl Ali. Patanjali Sastri
and Mukherjea JJ. delivered separate judgments.
KANIA C.J.-In these appeals the question whether
Kanu. o. J.
the Industrial Tribunal (Bank Dispute~) had jurisdiction to make the awards has been directed by
the Court to be tried as a preliminary issue. The
decision depends on the true construction of sections
7, 8, 15 and 16 of the Industrial Disputes Act. On
384
SUPREME COURT REPORTS
[1951]
1951
this question, the agreed statement of facts shows that
by a notification of the Government of India dated
~::::;:;;:: the 13th June, 1949, the Central Government constitutBtmkLtd.
ed an Industrial Tribunal for the adjudication· of
v.
industrial disputes in banking companies consisting of
Their Workmen.Mr. K.C. Sen, chairman, Mr. S. P. Varma and Mr.
J. N. Mazumdar.
A second notification dated the
Kania 0 · J. 24th August, 1949, was thereafter issued as follows:-
"In exercise of the powers conferred by sub-section (1)
of section 8 of the Industrial Disputes Act, the Central
Government was pleased to appoint Mr. N. Chandrasekhara Aiyar as a member of the Industrial Tribunal
constituted by the notifications of the Government of
India in the Ministry of Labour dated the 13th June,
1949, in the place of '.Vlr. S. P. Varma whose services
have ceased to be available." The Tribunal commenced its regular sittings at Bombay from the 12th to the
16th of September, 1949. It thereafter sat at Delhi and
Patna between the 19th September, 1949, and 3rd April,
1950. Further sittings were held, at some of which
Mr. Mazumdar was absent on various dates and Mr.
Chandrasekhara Aiyar was absent from the 23rd
November, 1949, to the 20th of February, 1950, as his
services were placed at the disposal of the Ministry of
External Affairs as a member of the lndo-Pakistan
Boundary Disputes Tribunal.
Between the 23rd
November, 1949, and 20th February 1950, Mr. Sen and
Mr. Mazumdar together sat at several places and made
certain awards. Those awards have been accepted by
the Government under section 15 of the Act and
published in the Gazette as the awards of the Tribunal. The Tribunal held its sittings in Bombay to hear
general issues from the 16th January, 1950, and concluded them on the 3rd April, 1950.
In the agreed
statement of facts. it is stated that the services of Mr.
Chandrasekhara AiyaJ' were not available to the Tribunal from the afternoon of 23rd November, 1949, to the
forenoon of 20th February, 1950.
From the 16th
January, 1950, up to 20th February, 1950, several
matters, particularly including 15 items covering,
inter alia, Issues 1, 2, 3, 4, 15, 23, 27, 28, 33, 34, 37
S.C.R.
SUPREME COURT REPORTS
385
and dealing with the question of the jurisdiction of
19111
the Tribunal in respect of officers regarding banks
The United
having branches in more than one Province and banks
Oommercial
in liquidation; question of retrospective effect to be
Bank Ltd.
given to the award, question relating to provident and
v.
guarantee fund and allowances to special categories of Their Workmen.
workmen, were dealt with by the Tribunal. From the
K ~
J
notes of the proceedings of the Tribunal it appears
an.a . ·
that as numerous banks anB workmen were parties to
the proceedings, some workmen who had not found it
convenient to attend throughout appeared and put
forth their views in respect of the aforesaid issues and
questions after Mr. Chandrasekhara Aiyar started his
work from the afternoon of the 20th February, 1950,
again by sitting with Mr. Sen and Mr. Mazumdar.
The jurisdiction of the Tribunal of the aforesaid three
persons to make the award is disputed on two grounds:
(1) That when Mr. Chandrasekhara Aiyar's services
ceased to be available, as mentioned in the agreed
statement of facts, the remaining two members had to
be re-appointed to constitute a Tribunal. (2) That
when Mr. Chandrasekhara Aiyar beg;m to sit again
with Mr. Sen and Mr. Mazumdar from the forenoon of
20th February, 1950, it was imperative to issue a notification constituting a Tribunal under section 7 of the
Industrial Disputes Act. The argument is that in the
absence of Mr. Chandrasekhara Aiyar the two members had no jurisdiction to hear anything at all without the appropriate notification and that Mr. Chandrasekhara Aiyar's services having ceased to be available
on the 23rd of November, 1949, he cannot sit again
with the other two members to form the Tribunal in
the absence of a notification under section 7.
In order to appreciate the correct position, it is
necessary to consider the scheme of the Industrial
Disputes Act. It envisages the establishment of a Conciliation Board, a Court of Inquiry and a Tribunal for
adjudication. Relevant portions of sections 5, 6, 7, 8,
15 and 16 of the Act which only are material for the
present discussion run as follows: -
110
386
SUPREME COURT REPORTS
[195
1961
5.
(1) "The appropriate Government may as
occasion arises by notification in the official Gazette
~=~~;:.~ constitute a Board of Conciliation for promoting the
Bank Ltd.
settlement of an industrial dispute·.
v.
• (2) A Board shall consist of a chairman and two or
Their Workmen. four other members, as the appropriate Government
thinks fit.
Kania 0. J.
.
(3) The chairman shal~ be an independent . pers~n
and the other members shall be persons appomted m
equal numbers to represent the parties to the dispute
and any person appointed to represent a party shall be
appointed on the recommendation of that party :
*
*
*
(4) A Board, having the prescribed quorum, may
act notwithstanding the absence of the chairman
or any of its members or any vacancy in its number.
Provided that if the appropriate Government notifies
the Board that the services of the chairman or any
other member have ceased to be available, the Board
shall not act until a new chairman or member, as the
case may be, has been appointed."
6.
(1) "The appropriate Government may as
occasion arises by notification in the official Gazette
constitute a Court of Inquiry for inquiring into any
matter appearing to be connected with or relevant to
an industrial dispute.
(2) A Court may consist of one independent person
or of such number of independent persons as the
appropriate Government may think fit and where a
Court consists of two or more members, one of them
shall be appointed as the chairman.
(3) A Court, having the prescribed quorum, may
act notwithstanding the absence of the chairman or any
of its members or any vacancy in its number.
Provided that, if the appropriate Government
notifies the Court that the services of the chairman
have ceased to be available, the Court shall not act
until a new chairman has been appointed."
7.
(1) "The appropriate Government may constitute one or more Industrial Tribunals for the
S.C.R.
SUPREME COUR! REPORTS
387
adjudication of industrial disputes in accordance with
19ol
the provisions of this Act.
The United
(2)A Tribunal shall consist of such number of
Oomm<1'Cial
members as the appropriate Govemm1ent thinks fit.
Bank Ltti.
Where the Tribunal consists of two or more members,
v.
one of the~ shall be appointed as the chairman. .
Their Workmen.
(3) Every member of the Tribunal shall be an , Kania o. J.
independent person,
(a) who is or has been ,a Judge of a High Court
or a District Judge, or
(b) is qualified for appointment as a Judge of a
High Court:
Provided that the appointment to a Tribunal of any
person not qualified under part (a) shall be made hi
consultation with the High Court of the Province in
which the Tribunal has, or is intended to have, its
usu<!-1 place of sitting."
8.
(1) "If the services of the chairman of a Board
or the chairman or other member of a Court or Tribunal cease to be available at any time, the appro~
priate Government shall in the case of a chairman,
and may in the case of any other member, appoint
another independent person to fill the vacancy,
and the proceedings shall be continued before the
Board, Court or Tribunal so reconstituted.
(2) Where a Court or Tribunal consists of one
person only and his services cease to be available the
appropriate Government shall appoint another independent person in his place, and the proceedings shall
be continued before the person so appointed.
(3) Where the services of any member of a Board
other than the chairman have ceased to be available,
the appropriate Government shaff appoint in the
manner specified in sub-section (3) of section 5 another
person to take his place, and the proceedings shall be
continued before the Board so reconstituted."
15..
(1) "Where an industrial dispute has been
referred to a Tribunal for adjudication, it shall hold
its proceedings expeditiously and shall, as soon as
388
SUPREME COURT REPORTS
(1951)
1951
practicable on the conclusion thereof, submit its award
Th• United
to the appropriate Government.
umnmercial
(2) On receipt of such award, the appropriate
bank Ltd.
Government shall by order in writing declare the
v.
award to be binding :
Their W QTkmen.
*
*
*·
Kania o. J.
(4) Save as provided in the proviso to sub-section (3) of section 19, an award declared to be binding
under this section shall not be called in question in
any manner."
16. "The report of a Board or Court and the
award of.a Tribunal shall be in writing and shall be
signed by all the members of the Board, Court or Tribunal, as the case may be :
Provided that nothing in this section shall be deemed
to prevent any member of the Board, Court or Tribunal from recording a minute of dissent from a
report or award from any recommendation made
therein."
Confining our attention to the aspect of absence of
members at the sittings of the different bodies and
what results follow therefrom, it is clear that under
section 5 (4) when a member of a Board of Conciliation
is absent or there is a vacancy, the Board is permitted
to act, notwithstanding such absence, provided there
is the prescribed quorum.
Such quorum is fixed by
the rules framed under the Act.
According to the
proviso to this sub-section however, if the appropriate
Government notifies the Board that the services of the
chairman or any other member have ceased to be
available, the Board shall not act until a new chairman or a member, as the case may be, has been
appointed. Reading these two parts together, it is
therefore clear that a distinction is drawn between the
situation arising from the absence of the chairman or
any of its members and a vacancy in the Board, and
the position when the Government has intimated that
the services of a chairman or member have ceased to
be available. The words "having the prescribed
quorum" put a further limitation on the right of the
S.C.R.
SUPREME COURT REPORTS
389
remaining members of the Board to act, when all of
rn51
them are not acting together. The proviso thus makes
it clear that when the serviees of a chairman or member
~=:~;r~;~
have ceased to be available and that fact has been
Bank Ltd.
notified to the Board by the appropriate Government,
v.
the remaining members have no jurisdiction to act in Their Workmen.
the name of the Board. Thus all the contingencies of
K ~
temporary or casual absence. as well as permanent
ania · J.
vacancy, and the contingency of the chairman or a
member's services having ceased to be available
·are contemplated and provided for. In the same way
and in the same terms, provision is made in respect
of the Court of Inquiry in section 6 (3).
The prov·isions as regards the Tribunal are found in section 7. No other section deals with the establishment
of the Tribunal. The first
clause empowers the
appropriate Government to constitute one or more
industrial tribunals having the functions allotted
to it under the Ad.
Sub clause (2) provides that
a Tribunal shall consist of such number of members
as the appropriate Government thinks fit.
This
clause therefore authorizes the appropriate Govern
ment to fix the number of members which will
constitute the Tribunal. Sub-clause (3) and the proviso
deal with the qualifications of individuals to be
members with which we are not concerned. Although
in this section there is no provision like sections 5 (I)
and 6 (1) requiring a notification of the constitution of
the Tribunal in the official Gazette, the deficiency is
made up by rule 5 of the Industrial Disputes Rules,
1949, framed by the Government under section 38 of
the Act. The rule provides that the appointment of a
Board, Court or Tribunal "together with the names of
the persons constituting the Board, Court or Tribunal"
shall be notified in the official Gazette. It is therefore
obligatory on the appropriate Government to notify
the composition of the Tribunal and also the names
of the persons constituting the same. In respect of a
TriOunal which is entrusted with the work of adjudicating upon disputes between employers and employees
whi.ch have not been settled otherwise, this provision
390
SUPREME COURT REPORTS
[1951]
rns1
is absolutely essential. It cannot be left in doubt to
The United
the employers or the employees as to who are the perCo•M»ercial
sons authorized to adjudicate upon their disputes.
Bank Ltd.
This is also in accordance with notifications of appointv.
ments of public servants discharging judicial or quasiTheir Workmen. judicial functions.
The important thing therefore to
-.-0 J
note is that the number forming the Tribunal and the
Kania · · names of the members have both to be notified in the
official Gazette for the proper and valid constitution
of the Tribunal.
It is significant that there is no provision correspond- •
ing to section 5 (4) or 6 (3) in section 7.
Section 15
of the Act provides that when an industrial dispute
has been referred to a Tribunal for adjudication, it
shall hold its proceedings expeditiously and as soon as
practicable and at the conclusion thereof submit its
award to the appropriate Government. It is thus
clear and indeed it is not disputed that the tribunal as
a body should sit together and the award has to be
the result of the joint deliberations of all members of
the Tribunal acting in a joint capacity.
Section 16
requires that all members of the Tribunal shall sign
the award. This again emphasizes that the function
of the Tribunal is joint and it is not open to any
member to refrain from signing the award. If the
award is not signed by all members it will be invalid
as it will not be the award of the Tribunal.
In the light of the provisions of section 7 the question arising for consideration is, what was the duty of
the Government when the services of Mr. Chandrasekhara Aiyar ceased to be available. The two telegrams
exchanged between Mr. Sen and the Government show
that the Government fook the view that a vacancy
had occurred and they did not think of filling it up at
the time. In the first place, on the true construction
of the Act, was it not obligatory on the Government
to notify to the contesting parties that it had decided
not to fill up the vacancy? Is it open to them to leave
the parties in doubt in respect of a Tribunal entrusted
with the work of adjudicating upon very important
disputes between parties? In our opinion, the whole
S.C.R.
SUPREME COURT REPORTS
391
scheme of the Act leads to the conclusion that the
1951
Government must notify its decision as to what it
The United
desired to do, i.e., whether it intended to fill· up the
Cammercial
vacancy or not and thereupon notify what members
Bank Ltd.
were going to constitute the Tribunal. We are led to
v.
that conclusion because a Tribunal of three consisting Their Workmen.
of Mr. Sen, Mr. Mazumdar and Mr. Chandrasekhara
Aiyar is a different tribunal from one consisting of
Kania 0 · J.
two, viz., of Mr. Sen and Mr. Mazumdaronly.
In this setting, it is next necessary to consider the
words of section 8 on which strong reliance is placed
on behalf of the respondents. The marginal note of
that section is "filling of vacancies ". The section
deals with the Board, the Court and the Tribunal in
its clauses. Under sub-section {l), the Legislature
clearly contemplates that when the services of a member
cease to be available at any time there will arise a
vacancy. This sub-section deals with the situation in
three stages. The first question is, have the services
of a member {and this includes, for the present discussion, a chairman) ceased to be available? If so, the
vacancy having thus arisen, the next question is, what
can be done by the appropriate Government ? If the
vacancy is filled up by making the appointment, the
final question is, how the proceedings shall go on before the Board, Court or Tribunal so reconstituted ? It
was argued on behalf of the respondents that it was
for the appropriate Government alone to pronounce
whether the services of a member had ceased to be
available at any time and that was not a matter for
the decision of the Court. In our opinion, what is
left to the option of the Government is, in case of the
services of a member ceasing to be available, to appoint
or not to appoint. Those stages having passed, the
appropriate Government, under the section, is obliged
to appoint another person to fill the vacancy, if the
vacancy is c.reated in respect of a chairman. In respect
of the vacancy of a member's p9st, the Government is
given the option to appoint or not to appoint another
person. The concluding words of the sub-section "so
reconstituted" clearly relate only to tpe contingency of
392
SUPREME COURT REPORTS
[1951)
1951
the Government making the appointment of another
independent person in the vacancy. The concluding
The United
•
.
Commercial
part of that sub-section provides for the continuance of
Bank Ltd.
the proceedings before the body so reconstituted. Subv,
section (2) also provides that where a i:ourt or tribuTheir Woekmen. nal consists only of one person and his services have
ceased to be available, on the appointment of another
Kmiia 0 · J. independent person the proceedings shall be continued
before the person so appointed and it will not be
necessary to start the proceedings from the beginning
before that person. Section 8 (3) provides for the
contingency of the services of a member of a Board
not being available.
It requires the appropriate
Government to make the appointment as provided in
section 5 (3) and further provides that notwithstanding
the inclusion of a totally new man in that vacancy, the
proceedings shall be continued before the Board so
reconstituted. Reading the three clauses together,
therefore, it is quite clear that the object of section 8 is
to make specific provisions in respect of situations when
the Government must or does fill up vacancies in the
event of the services of a member or chairman not being available and the consequences of a totally new man
filling up the vacancy. As we read the Act, that is
the total object and intention of this section. It does
not contemplate the consequences of the Government
not making an appointment where it has the option
not to do so.
The emphasis on the words "so reconstituted " in sub-sections (1) and (3) and the
concluding words of each of those clauses clearly bear
out this intention of the legislature.
It was argued that although no provision is made in
section 8 (1) about what is to happen if the Government did not fill up the vacancy, it is implied that in
that event the remaining members can continue the
work. We are unable to accept that argument. In the
first place, as pointed out above, the object of section 8
is to provide in what cases vacancies must be filled up
and how the proceedings should continue on the
vacancy being filled up. It does not deal at all with
the situation arising from the not filling up of the
S.C.R.
SUPREME COURT REPORTS
393
vacancy by the Government. In this connection the
1951
provisions of sections 5 (4) and 6 (3) have been already
The United
noted. When the legislature wanted to provide that
commercial
in spite of the temporary absence or permanent vacancy
Bank Ltd .
.the remainip.g members should be authorised to proceed
v.
with the work they have made express provision to Their Workmen.
that effect. If in the case of a Board or Court of Inquiry, neither of which is adjudicating any disputes,
Kania 0 · J.
such a provision was considered necessary to enable
the remaining members to act as a body, we think
that the absence of such provision in respect of the
Tribunal, which adjudicates on the disputes and
whose quasi· judicial work is admittedly of a joint
character and responsibility leads to the irresistible
conclusion that in the absence of one or more members
the rest are not competent to act as a Tribunal at all.
Again the provisos to sections 5 (4) artd 6 (3) are important. Under those provisos when the Government
intimates to the remaining members that the services
of one "have ceased to be available" the rest have no
right to act as the Board or Court. It appears under
the circumstances proper to hold that in respect of a
Tribunal when the services of a member have ceased
to be available, the rest by themselves have no right
to act as the Tribunal.
Th'e question which we have got to consider can be
divided in two stages. On the_ appointment of Mr.
Chandrasekhara Aiyar as a member of the Boundary
Tribunal, did his services cease to be available within
the meaning of section 8, and thereby was a vacancy
created? The parties have put before us only two
telegrams exchanged between the chairman and Mr.
Mazumdar on the one hand and the Central Government on the other, to reach our conclusion about the
situation arising from Mr. Chandrasekhara Aiyar
joining the Boundary Tribunal. Certain Government
notifications published in May and June, 1950, i.e.,
over three or four months after Mr. Chandrasekhara
Aiyar finished his work on the Boundary Tribunal,
have been put before us, but in our opinion these
~
61
394
SUPREME COURT REPORTS
lH>51]
1961
ex post facto notifications cannot help us in deciding the
Th• Unittd
important question under section 8. It is obvious that,
commercial on the date the appointment of Mr. Chandrasekhara
Bank Ltd.
Aiyar as a member of the Boundary Tribunal was
•·
made, it could not have been known how long that
Their Workmen. Tribunal would take to complete its work. In any
event, the evidence put before us as of that date does
Kania O. J.
.
not show that the appomtment was for a short time.
The Boundary Tribunal's work may have lasted for a
month or a year.
Having regard to the urgency and
the necessity of quick disposal of industrial disputes
recognised in section 15, the deputation of a member of
such a Tribunal to another Tribunal. whose work may
be of an indefinite duration, obviously makes the
services of the member cease to be available to the
Industrial Tribunal within the meaning of section 8 so
as to bring about a vacancy. The later statement in the
Government notification of May, 1950, that Mr. Chandrasekhara Aiyar's services were lent to the External
Affairs Ministry "from the 23rd of November, 1949,
to the 20th of February, 1950, " appears to be more a
notification for the purpose of the Accountant-General
and the Audit departments of the Government than a
disclosure of the mind of the Government when the
appointment was made on the 23rd of November.
When Mr. Sen, as chairman, and Mr. Mazumdar held
their first sitting in the absence of Mr. Chandrasekhara
Aiyar, an objection was raised about the constitution
of the Tribunal. Thereupon Mr. Sen and Mr. Mazumdar conveyed to the Government what had happened
at the meeting. The Government was therefore clearly
faced with the problem as to what it wanted to do.
The reply telegram from the Government asked Mr. Sen
and Mr. Mazumdar to go on with the proceedings. It
further stated that the Government might fill up the
vacancy later on.
The question for consideration is,
what is the effect of this telegram of the Government ?
In the light of the provisions of section 8 that telegram
can only mean that the Government had decided not to
fill up the vacancy. If a vacancy had occurred they
had to make the appointment or state that they will
S.C.R.
SUPREME COURT REPORTS
395
not do so. They cannot defer their decision on the.
1951
question of filling up the vacancy and in the interval
Th• United
direct the remaining members to go on with the
commercial
reference. That seems to us to be the correct position
Bank Ltd.
because the fundamental basis on which the Tribunal
v.
has to do its work is that all members must sit and Their Workmen.
take part in its proceedings jointly. If a member was
"l
b
t
·
·11
h
Kania C. J.,
casually or temporan y a sen ·. owmg to 1 ness, t e
remaining members cannot have the power to proceed
with the reference in the name of the Tribunal, having
regard to the absence of any provision like section 5 ( 4)
or 6 (3) in respect of the tribunal. The Government
had notified the constitution of this Tribunal by
the two notifications summarized in the earlier
part of the judgment and thereby had constituted
the Tribunal to consist of three members and those
three were Mr. Sen, Chairman, Mr. Mazumdar and
Mr. Chandrasekhara Aiyar. · Proceeding with the
adjudication in the absence of pne, undermines the
basic principle of the joiQt work and responsibility of
the Tribunal and of all its members to make the award.
Moreover, in their telegram the Government had not
suggested that no vacancy had occurred. Indeed, they
recognised the fact of a vacancy having occurred but
stated that they might make the appointment later on.
If those words are properly construed, without any
outside considerations, it is clear that the Government
intended that the remaining two members of the
Tribunal should proceed with the adjudication as a
Tribunal. This direction in fact was accepted and the
two members proceeded with the reference and made
certain awards. Those awards were sent to the Government under section 15 (2) and the Government by
its order declared the awards to be binding, and
published them in the official Gazette. Those awards
are signed only by Mr. Sen and Mr. Mazumdar. Reading those awards with the notifications and the provisions of sections .15 and 16 it is therefore clear that
between 23rd November, 1949, and 20th February,
1950, the Government "intended" the tribunal to .consist only of Mr. Sen and Mr. Mazumdar. It was rlot and
396
SUPREME COURT REPORTS
[1951]
1 9~1
cannot be seriously disputed that in the event of the
The United
Government deciding to fill up the vacancy, a notificaOommercial tion had to be issued. The question is, why and under
Bank Ltd.
what rule? The answer clearly is that they had to do
v.
it because of rule 5.
The reason why intimation of a
Their Workmen. new man forming a member of the Tribunal has to be
-
publicly given, in our opinion, applies with equal force
Kania a. J.
'b
1 ..
when a tn una m1tially constituted of three persons,
viz., Mr. Sen, Mr. Mazumdar and Mr. Chandrasekhara
Aiyar, is, by the Government decision,as from a certain
date, to be a tribunal of Mr.Sen and Mr. Mazumdaronly.
The word " reconstituted " is properly used in section 8
because when a new member is introduced in the panel
so far performing its duties, it is a reconstitution, but
the words of section 8 do not exclude the obligation on
the Government to issue a notification under rule 5
when there is not a reconstitution, but a new constitution of the Tribunai. The Government, however, did
not give effect to its intention by issuing a fresh
notification under section 7.
Therefore, when the
services of Mr. Chandrasekhara Aiyar ceased to be
available and they decided that another independent
person was not to be appointed to fill the vacancy,
there arose the situation when only two members
constituted the Tribunal.and for the constitution of such
Tribunal no notification under section 7 of the Act was
issued. To enable such a Tribunal of two persons to
function, under the provisions of the Act, a notification
under section 7 of the Act, in our opinion, was absolutely essential. The work of the two members in the
absence of such a notification cannot be treated as the
work of a Tribunal established under the Act and all
their actions are without jurisdiction.
It was argued on behalf of the respondents that
when Mr. Chandrasekhara Aiyar left for the Boundary
Tribunal, there arose a temporary abs('lnce which it was
not necessary to fill up and the remaining two members
had jurisdiction under the Act to proceed with the
adjudication. In our opinion, this contention cannot
be acc~pted. In the first place, in the agreed statement
of facts, it is not stated that there was any temporary
S.C.R.
SUPREME COURT REPORTS
_ 397
absence. Again, as we have pointed out the Govern1951
ment by its telegram of the 29th of November accepted
The Unite.d
the position that a vacancy had occurred and. no
commercial
question of temporary absence therefore arises for our
Bank Ltd.
consideration. An analogy sought to be drawn between
v.
the temporary absence on leave or on deputation of a Their Workmen.
Judge is misleading having regard to the fact that
under section 7 the Government has to decide at the Kania 0• J.
initial stage how many members and who will constitute the Tribunal and have to notify the same.
That
step having been taken, it is not within the power or
competence of the Government to direct a few members
only of such Tribunal to proceed with the adjudication
for however short or long time it be. In our opinion,
section 8 has no application to that situation. In this
connection, it may be useful to notice that under rule
12 it was provided that " when a Tribunal:;consists of
two or more members, the tribunal may, with the
consent of the parties, act notwithstanding any casual
vacancy in its number ...... " This rule clearly shows
that even when there was a casual vacancy and the
remaining members desired to proceed with the work
they could do so only with the consent of the parties.
This rule framed under section 38 of the Act strongly
supports the cont~ntion that if the Act impliedly
gave power under section 8 to the remaining two
members of the Tribunal to act, as contended on
behalf of the respondents, there was no necessity at all
for making this rule. Although this rule was repealed
on the 3rd of December, it was in operation when the
services of Mr. Chandrasekhara Aiyar ceased to be
available to the Tribunal as from the 23rd of November.
If in the case of temporary absence, the consent of the
parties was essential to enable the remaining members
to act, it certainly follows that the objection to their
working as a Tribunal when there is no consent and
the 1-bsence is not casual, but is due to the services of
one of the members having ceased to be available, is
fatal. It follows therefore that all awards made by
Mr. Sen and Mr. Mazumdar, after the services of
Mr. Chandrasekhara Aiyar ceased to be available, were
398
SUPREME COURT REPORTS
[1951]
1951
not made by a tribunal duly constituted under section
7 and those a wards are therefore void.
The United
Gomm•rcial
l1; was contended that by directing Mr.