IN RE ALL INDIA INDUSTRIAL TRIBUNAL (BANK DISPUTES) Vs.
LAWS(SC)-1951-4-4
SUPREME COURT OF INDIA
Decided on April 09,1951

In Re All India Industrial Tribunal (Bank Disputes) Appellant
VERSUS
Respondents

JUDGEMENT

Harilal Jekisundas Kania, J. - (1.)[Mahajan J., Das J., and Bose J., concurring.] In these appeals the question whether the Industrial Tribunal (Bank Disputes) 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 this question, the agreed statement of facts shows that by a notification of the Government of India dated June 13, 1949, the Central Government constituted an Industrial Tribunal for the adjudication of industrial disputes in banking companies consisting of Mr. K.C. Sen, Chairman, Mr. S.P. Varma and Mr. J.N. Mazumdar. A second notification dated August 24, 1949, was thereafter issued as follows : -
In exercise of the powers conferred by Sub -section (1) of Section 5 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 June 13, 1949, in the place of Mr. S.P. Varma whose services have eased to be available.

The Tribunal commenced its regular sittings at Bombay from September 12 to 16, 1949. It thereafter sat at Delhi and Patna between September 19, 1949, and April 3, 1950. Further sittings were held, at some of which Mr. Mazumdar was absent on various dates and Mr. Chandrasekhara Aiyar was absent from November 23, 1949, to February 20, 1950, as his services were placed at the disposal of the Ministry of External Affairs as a member of the Indo -Pakistan Boundary Disputes Tribunal. Between November 23, 1949, and February 20, 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 January 16, 1950, and concluded them on April 8, 1950. In the agreed statement of facts, it is stated that the services of Mr. Chandrasekhara Aiyar were not available to the Tribunal from the afternoon of November 23, 1949, to the forenoon of February 20, 1950. From January 10, 1950, up to February 20, 1950, several matters, particularly including 15 items covering, inter alia, issues 1, 2, 3, 4, 15, 23, 27, 28, 33, 34, 87 and dealing with the question of the jurisdiction of the Tribunal in respect of officers regarding banks having branches in more than one Province and banks in liquidation, question of retrospective effect to be given to the award, question relating to provident and guarantee fund and allowances to special categories of workmen, were dealt with by the Tribunal. From the notes of the proceedings of the Tribunal it appears that as numerous banks and 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 February 20, 1950, again by sitting with Mr. Sen and Mr. Mazumdar.

(2.)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 began to sit again with Mr. Sen and Mr. Mazumdar from the forenoon, of February 20, 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 bear anything at all without the appropriate notification and that Mr. Chandrasekhara Aiyar's services having ceased to be available on November 23, 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 : -

5. (1) "The appropriate Government may as occasion arises by notification in the official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.

(2) A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit.

(3) The chairman shall be an independent person and the other members shall be persons appointed in 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 aa 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 adjudication of industrial disputes in accordance with the provisions of this Act.

(2) A Tribunal shall consist of such number of members as the appropriate Government thinks fit. Where the Tribunal consists of two or more members, one of them shall be appointed as the chairman.

(3) Every member of the Tribunal shall be an 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 in consultation in which the Tribunal has or is intended to have, its usual place of sitting.

8. (1) "If the services of the chairman of a Board or of the Chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate 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 shall 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 it proceedings expeditiously and shall, as soon as practicable on the conclusion thereof, submit its award to the appropriate Government.

(2) On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding:....

(4) Save as provided in the proviso to Sub -section (3) of Section 10, 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 Beard, 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.

(3.)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 absentor 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 remaining members of the Board to act, when all of them are not acting together. The proviso thus makes it clear that when the services of a chairman or member have ceased to be available and that fact has been notified to the Board by the appropriate Government, the remaining members have no jurisdiction to act in the name of the Board. Thus all the contingencies of temporary or causal absence, as well as permanent vacancy, and the contigency 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 provisions 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 Act. 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 Government 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(1) 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 tribunal which is entrusted with the work of adjudicating upon disputes between employers and employees which have not been settled otherwise, this provision is absolutely essential. It cannot be left in doubt to the employers or the employees as to who are the persons authorized to adjudicate upon their disputes. This is also in accordance with notifications of appointments of public servants discharging judicial or quasi -judicial functions. The important thing therefore to note is that the number forming the tribunal and the names of the members have both to be notified in the official Gazette for the proper and valid constitution of the tribunal.
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