9911796707
Advanced Search 
TMI Blog1985 (10) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... ines contempt of courts ~s per section 2 of the said Act. Civil contempt is defined by section 2(b) as under : - " civil contemptmeans wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;" While 'criminal contempt' is defined in seetion,2(c) as under 'Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which - (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;" Section 10 of the Act which is, relevant for our present purpose reads as under : - "Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice., in respect of contempt of courts subordinate to it as it has-and exercise in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered by all-the said three learned Judges constituting majority. Kania, C. J. concurring with Fazl Ali and Mahajan, JJ. observed as under : - "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". 6. Thereafter, the learned Chief Justice made the following observations in para 3 of the report : - "The next question is whether under Art. 136 the Court has 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 respect of the work of the Tribunal. The only question is whether there is a right of appeal also. In my opinion, the wording of Art. 136 is wide enough to give jurisdiction to the Court to entertain an application for leave to appeal". FazI Ali, J. in his judgment in para 7 of the report has made the following pertinent observations : - "Now, there can be no doubt that the industrial tribunal has, to use a well known expression all the trappings of a court' and performs functions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling the contention on behalf of the contesting party that the adjudication of the tribunal has not at 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 S. 15 (forerunner of present section 17A of the Act), Fazl Ali, J. adopting the ratio of the decision in the case of Rex v Electricity Commissioners; London Electricity Joint Committee Co. (1920) Ex parte, (1924) 1 KB 171 which was rendered in connection with legality and propriety of issuance of a writ of mandamus and certiorari, quoted with approval the following observations in the aforesaid decision in the case of Rex (supra) : - "It is necessary, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment in cases where it is a party to the award has been given limited power in given contingencies on public ground to declare the award not to be enforceable on the expiry of 30 days and similar powers have been given to Central Govt. to make the award of National Tribunal unenforceable on similar ground, was considered and in that connection, it was laid down in para 12 of the report that despite such provision, in cases where the appropriate Government is not a party to the disputes, all 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) was held as mandatory and it was further observed: - "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 advised 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". 7. The third learned Judge Mukherjea, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a Court of justice. It had no other function except that of adjudicating on a dispute. It was no doubt true that by reason of the nature of the dispute that they may have to adjudicate the law gives them wider powers than are possessed by ordinary courts of law but powers of such a nature did not affect the question that they are exercising judicial power. It was then: observed :- "Statutes like the Relief of Indebtedness Act, or the Encumbered Estates Act have' conferred powers on courts which are not ordinarily known to law and which affect contractual rights. That circumstance does not make them anything else but tribunals exercising judicial power of the State though in a degree different from the ordinary court and to an extent which is also different from that enjoyed by an ordinary court of law. They may rightly be described as quasi-judicial bodies because they are out of the hierarchy of the ordinary judicial system but that circumstance cannot affect the question of their being within the ambit of Art. 136." Thereafter, in para 28 of the report, the learned Judge noted provisions of S. 29 which indicated that breach of award would result in penal consequences. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which strong reliance was placed by the learned Advocates for the petitioners as well as by the learned Advocate Mr. Gupta appearing for the contesting respondents. In that case, the Supreme Court was concerned directly with the question as to under what circumstances an authority can be considered to be a court within the meaning of S. 3 of the Contempt of Courts Act, 1952 which is the forerunner of present section 10 of the Contempt of Courts Act, 1971 that holds the field today and which is in pari materia with section 3 in the predecessor Act. In that case, three learned Judges of the Supreme Court had to consider the question whether the Commissioner appointed under Public Servants (Inquiries) Act, can be said to be a court as contemplated by section 3 of the Contempt of Courts Act, 1952. Bhagwati, J. as he then was, speaking for the Supreme Court made the following observations while answering this question : - "The word 'court' is not defined in the Contempt of Courts Act and the expression 'courts subordinate to the High Courts' in S. 3(l) would prima facie mean the courts of law subordinate, to the High Courts in the hierarchy of courts established for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the term. In our view, these later observations of the Supreme Court in the aforesaid case do not advance the case of the respondents any further, as the clinching circumstances for deciding whether an authority is a court or not viz. power to adjudicate by way of authoritative judgment which has finality and authoritativeness being not there with the Commissioners, they can never be treated as courts within the meaning of Contempt of Courts Act and consequently for guarding them against contempts, statutory provision had to be made in the Act enabling such Commissioners to function effectively. In view of the scheme of I.D. Act as considered by the Supreme Court in Bharat Bank's case (AIR 19-50 SC 188) (supra), the basic requirements for judging whether the authority is a judicial tribunal or not have got to be held to have been satisfied so far as the tribunal functioning under I.D. Act is concerned, even applying the clinching tests for deciding such question as laid down by the Supreme Court in Brajnandan's case (1956 Cri LJ 156) (supra). 9. In the same volume is another judgment reported in the case of Virindar Kumar v. State of Punjab, AIR 1956 SC 153: (1956 Cri LJ 326). A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the light of ratio of various decisions of the Supreme Court on the point as aforesaid, the following conclusion was reached in Jugal Kishore's case (supra) :- "A registrar exercising powers under S. 48 must be held to discharge the duties which would otherwise have fallen on the ordinary civil and revenue courts of the land. The Registrar has not merely the trappings of a court but in many respects he is given the same powers as are given to ordinary Civil Courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of courts mentioned in' S. 151 of the Code of Civil Procedure. In adjudicating upon a dispute referred under S. 48 of the Act, the Registrar is to all intents and purposes, a court discharging the same functions and duties in the sam6 manner as a court of law is expected to do. Therefore, an Assistant Registrar discharging the function of Registrar under S. 48 read with S. 6(2) of Bihar and Orissa Co-operative Societies Act is a court." Having decided that ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in order to constitute a court in the strict sense of the term, an essential condition is that the court should haw~, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement". Four characteristics making up a judicial decision as laid down in Brajnandan's case (1956 Cri U 156) (SC) (supra) were also extracted with approval in para 16 of the report. Mr. Gupta for the respondents as well as Mr. V. B. Patel who intervened on behalf of the respondents submitted that the ratio of the decision in Thakur Jugal Kishore's case (1967 Cri U 1380) (SC) (supra) will not apply as the scheme of Bihar and Orissa Cooperative Societies Act as considered by the 'Supreme Court is entirely different from the scheme of the Industrial Disputes Act. We will consider this aspect when we deal with the scheme of the Industrial Disputes Act hereafter. Suffice it to say for the present that the tests as laid down in the above ruling for deciding whether an authority is a court within the meaning of S. 3 Of the Contempt of Courts Act, 1952 will have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that before any court is considered to be court subordinate to the High Court, it should be ascertained whether it is subordinate to the High Court in the hierarchy of courts and if such hierarchy is absent, recourse to Article 227 of the Constitution cannot be taken for culling out subordination of such authority which may fall outside the hierarchy of ordinary courts. It is not possible to agree with this contention of the respondents for a number of obvious reasons. Firstly, the observations of three-member bench in Brainandan's case (supra) themselves clearly indicate that the Supreme Court in that case had not authoritatively pronounced upon the question whether a court subordinate to the High Court within the meaning of section 3(1) of the Contempt of Courts Act must be a court subordinate in the hierarchy of courts. Employment of the word'prima facie'suggests that it was a tentative opinion of the Supreme Court and was not an authoritative pronouncement. Secondly, the decision in Brainandan's case (supra) was very much before the two-member bench of the Supreme Court which decided Jugal Kishore's case (supra). This judgment was noticed and referred to on four different occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the aforesaid case has taken the same view on the phrase courts subordinate to the High Court' as employed by section 10 of the Contempt of Courts Act, 1971 which is in pari materia to section 3 of the earlier Act of 1952. In that case, the question arose as to. whether the Board of Revenue functioning under the U. P. Zamindari Abolition and Land Reforms Act was a court subordinate to the High Court as contemplated by section 10 of the Contempt of Courts Act, 1971, whose confempt can be taken cognizance of by the High Court. Answering the question in the affirmative, the Supreme Court speaking through R. S. Sarkaria, J. made the following pertinent observations in para 15 ot the report : - "The provision in section 10 is but a replica of section 3 of the 1952.Act. The phrase courts subordinate to it" used in section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution does not vest in the High Court". It must be seen that the aforesaid decision of the Supreme* Court runs parallel to the ratio of the decision of the Supreme Court in Thakur Jugal Kishore's cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the Supreme Court decisions directly on the point, as we have seen earlier, the word 'court' has been interpreted to take in its sweep not only regular civil courts or courts in the strict sense of the term but also judicial authorities functioning under diverse statutes. Mr. Gupta then invited our attention to the decision of the Supreme Court in the case of Engineering Mazdoor Sabha v. Hind Cycles Ltd. AIR 1963 SC 874. In that case, the Constitution Bench of the Supreme Court was concerned with the question whether the award passed by the Arbitrator appointed by parties as per section 10A of the I.D. Act can be appealed against under Article 136 of the Constitution. It was held that as the Arbitrator appointed by the parties derives his power not through any statute, but only through the agreement of parties, his award was an award of arbitrator simpliciter and could not be elevated to the status of an award of tribunal within the contemplation of Article 136 of the Constitution. This judgment will be of no assistance to Mr. Gupta for two obvious reasons. Firstly, in the present references, we are not concerned with the question whether an award rendered by the arbitrato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns or disputes affecting the rights of citizens and under a duty to act judicially. A judicial decision always postulates the existence of a day laid upon the authority to act judicially. Administrative authorities are often invested with authority or power to determine questions, which affect the rights of citizens. The authority may have to invite objections to the course of action proposed by him, he may be under a duty to hear the objectors, and his decision may seriously affect the rights of citizens but unless in arriving at his decision he is required to act judicially, his decision will be, executive or administrative. Legal authority to determine questions affecting the rights of citizens, does not make the determination judicial; it is the duty to act judicially which invests it with that character. What distinguishes an act judicial from administrative is therefore the duty imposed upon the authority to act judicially. To make a decision or an act judicial, the following criteria must be satisfied : (i) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he land. The Registrar had not merely the trappings of a court but in many respects he was given, the same powers as were given to ordinary Civil Courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of courts mentioned in Section 151 of the Code of Civil Procedure. In adjudicating upon a dispute referred under Section 48 of the Act, the Registrar was to all, intents and purposes a court discharging the same functions and duties in the same manner as a court of law was expected to do. The settled principles were followed where it had been field that in order to constitute a court in the strict sense of the term, an essential condition was that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a. definitive judgment which had finality and authoritativeness which were the essential tests of a judicial pronouncement. Here the Registrar was to all intents and purposes, a court, and therefore, it was held that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in para 11 of the report to the effect that subordination to the High Court as per Article 226 of the, Constitution would satisfy the test of a court,: being subordinate to the High Court within the meaning of Section 10 of the Contempt of Courts-Act, prima facie appears to be unjustified as proceedings under Article 226 of the Constitution are considered to be of original nature. However, we are not required to closely examine this aspect of the matter in view of the fact that the word 'tribunar which was deleted from Art. 227 by Constitution (42nd Amendment) Act, 1975 by adding new clause 5 to the said Article, was restored in the Article by.Constitution (44th Amendment) Act. At the time when this court decided S. R. Paters case (1978-19 Guj LR 751) (supra), the word 'tribunal' had stood deleted from Art. 227 and consequently, the court had to make the exercise of culling out judicial subordination of the Tribunal to the High Court under Art. 226. 17. So far as the Bombay High Court is concerned, there are three decisions, which are required to be noted. In the case of Registrar, High Court, Bombay V. S. K. Irani, AIR 1963 Bom 254: (1963 (2) Cri LJ 603), the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an authority as well as the source of its power must be judicial power of the State coming to it by the statute itself. The power of review and the inherent power enjoyed by a civil court cannot be regarded as sine qua non for holding any tribunal to be a court. Since the officers on special duty perform judicial functions and have been empowered to tender definitive decisions decisions which have finality and authoritativeness so as to bind the parties appearing before them qua their rights, of course subject to appeal or review or revision that has been provided under the Act and since the said officers on special duty are appointed by the State Government under notification in exercise of the powers conferred by See. 3 of the Mah. Co-op. Societies Act and they derive their authority to dispose of the disputes judicially from the State directly under the Statute, such officers on special duty satisfy both the criteria; and in that view, the said officers must be held to be courts within the meaning of the Contempt of Courts Act, while discharging their duties under the State Act". We respectfully concur with the aforesaid view of the Full Bench of the High Court of Bombay wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial attributes of 'Court' though minor trappings or inconsequential attributes may be absent. These essential attributes of the court would include right of the contesting parties to represent their case not necessarily orally before the tribunal, ascertainment by the authority of the disputed question of fact posed for its consideration by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence led before the authority, if the dispute between them is a question of law, the submission of legal arguments by the parties and the power of the authority to inforce attendance of witnesses, production of documents etc. to-enable the authority to March 1957 under the Act. Chapter 11 of the Act deals with authorities under the Act viz. authorities constituted under the Act. Section 3 deals with establishment and constitution of works committee. Section 4 deals with conciliation officers and section 5 deals with boards of conciliation. Section 6 deals with courts of, inquiry and then comes section 7 which provides for constitution of labour courts and enjoins and enables the appropriate Government to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authority is concerned. The said decision must be definitive and must have finality and authoritativeness. The decision rendered by such authority must dispose of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the fact so found, including where required a ruling upon any disputed question of law. 24. We will have to judge the questions posed for our consideration in the light of the aforesaid tests. For that purpose, we have to turn to the relevant statutory schemes under which the concerned authorities function. We will first turn to the scheme of the I.D. Act in connection with which rival submissions were submitted by the learned counsel for our consideration. So far as the scheme of Bombay Industrial Relations Act and the Gujarat Co-operative Societies Act were concerned, there was not much dispute between the parties. 25. Scheme of the I.D. Act:- The Industrial Disputes Act, 1947 was enacted by the Central legislature with a view to making provisions for the investigation and settlement of industrial disputes and for certain other purposes as the preamble shows. The legislation was calculated to ensure social justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettlement or for conciliation would involve exercise of convincing and prompting parties to the dispute to amicably settle the dispute. Once that stage is reached, it -is an agreement between the parties which would bring industrial peace between warring camps. It is their own agreement which will remain binding to them. No process of compulsory adjudication is involved therein. However, when a dispute is referred for adjudication to the proper authority, may be labour court, industrial tribunal or national tribunal, the canvass is spread wide open before the concerned authority to enable the authority after hearing the concerned parties to adjudicate upon their dispute. It would naturally involve element of compulsion and whether the parties agreed to it or not, the adjudication and decision would be foisted upon them by process of compulsory adjudication, subject to following up of the statutory procedure laid down for such adjudication. It does not require any great effort to find out that the process of adjudication enjoined upon the concerned authority under the Act runs quite parallel to the process of adjudication of disputes -between-the warring parties as undertaken by ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been given full power to determine by and to whom and to what extent and subject to what conditions, if any, costs are to be paid. As per sub-section (8), every tabour court, iribunai oc national tribunal will be deemed to be civil court for the purposes of sections 345, 346 and 348 of the Code of Criminal Procedure, 1973. It is of coursr, true that the provisions of section I I apply riot only to labour court, in ' dustrial tribunal but also to arbitrators or board or court of inquiry. But that does not mean that trappings of court which are invested in the labour court or tribunal as per section 11 are in any way less effective. It may be that conciliation officer and board of inquiry may also have those trappings. However, because they have no power to adjudicate upon the dispute or lis between the contesting parties, they may fail in the contest for being treated as a court or judicial authorities. But that result flows from the statutory settings independent of section 11 and out of the fact that they are not meant to adjudicate upon the dispute by resorting to compulsory adjudication but they are meant to cater to the need for persuading the parties to amicably settle their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under section 17, make an order rejecting or modifying the award, and shall on the first available opportunity, lay the award together with a copy of the order before the legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government. (3) Where any award as rejected or modified by an order made under sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2). (4) Subject to the provisions of sub-section (1) and sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, that the total period of operation of any award does not exceed three years from the date on which it came into operation. Sub-section (4) of section 19 lays down that where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it to a labour court, if the award was that of a labour court or of a tribunal, if the award was that of a tribunal or of a national tribunal for decision whether the period of operation should not, by reason of such change be shortened and the decision of labour court or the tribunal, as the case may be, on such reference shall be final. Subsection (5) of section 19 lays down that nothing contained in sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award. As per sub-section (6), notwithstanding the expiry of the period of operation under sub-section (3), the award shall continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the concerned authority for adjudication. Section 33C deals with procedure for recovery of money due from an employer. Sub-section (2) thereof enables the workman to apply to the labour court for getting monetary - dues of the workman adjudicated against the employer and for direction regarding payment thereof. Section 34 deals with cognizance of offences by court and lays down that no court shall take cognizance of any offence punishable under the Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government. Section 36 deals with representation of parties insofar as labour court, tribunal or national tribunal are concerned and lays down by subsection (4) thereof that in any proceeding before such authorities, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the labour court, tribunal or national tribunal, as the case may be. 26. The aforesaid is the cross-section of relevant provisions of the I.D. Act. Now these provisions clearly indicate that labour courts and industrial tribunals satisfy all the four tests for qualify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odified or does not in terms cover the problem under consideration. The industrial courts are to adjudicate on the disputes between employers and their workmen etc. and in the course of such adjudication they must determine the'rights' and 'wrongs' of the claims made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and fro restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience". It is pertinent to note that once a reference is made under section - 10 by the appr6priate Government, the industrial tribunal or labour court, as the case may be, has got to decide it and adjudicate upon it. Government has no power to cancel the reference or supersede the reference once made (vide : State of Bihar v. D. N. Ganguly, AIR 1958SC 1018). In the case of Gujarat Steel Tubes Ltd. v. Its Mazdoor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the appropriate Government is enabled to specify the concerned tabour court or tribunal which can resolve such dispute, it cannot be said that the constitution of these tribunals is made by the Government and not by the statute. In fact, appropriate Government acting under the statute is having power coupled with duty to specify the concerned tribunals once the industrial disputes are found existing or apprehended. In that connection, Government merely acts as a statutory delegate and nothing more. Consequently, the submissions of Mr. Gupta and Mr. V. B. Patel placing strong reliance on sections 7, 7A and 10 to the effect that tabour court and tribunal can adjudicate upon only those disputes which are referred to by the Government and only if the Government specifies the concerned tribunals or labour courts and hence these powers make them creatures of appropriate Government and not of the statute, cannot be countenance even for a moment. The authority and power to adjudicate upon a dispute are entrusted to the labour court and tribunal by the Act and not by the appropriate Government. Moment the dispute which is referred for adjudication enters the precincts of the labour court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are made available. In that connection, we may usefully refer at this stage to the majority decision of the Supreme Court in Bharat Bank's case (AIR 1950 SC 188) (supra) wherein it has been clearly laid down that industrial tribunals functioning under the 1. D, Act have all the necessary trappings of courts of justice, and that functions and duties of the industrial tribunals are very much like those of a body discharging judicial functions, although it is not a court in the technical sense of the word, meaning thereby, they are not courts strictosensu. This aspect is further highlighted by a later decision of the Supreme Court in the case of J. K. Iron and Steel Co. (AIR 1956 SC 23 1) (supra). Bose, J. speaking for the Supreme Court after referring to the decision of the Supreme-Court in AIR 1950 SC 188, made ' the following observations in para 24 of the report: - Now the position in the present case is this. The tribunals are directed by S. 7, Industrial Disputes Act to adjudicate industrial disputes "in accordance with the provisions of the Act and section 11 directs thdm to follow such procedure as may be prescribed'. The procedure for the Uttar Pradesh Tribunals is laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r successors till the award is terminated by giving notice. Consequently, finality of the award which results out of ad judicatory process is of all pervasive nature and it clings to the concerned parties even after statutory period of its operation is over. 31. It is now time to turn to S. 17A on which great store was laid by the learned counsel Mr. Gupta and Mr. V. B. Patel for the respondents. It was submitted that under certain circumstances, appropriate Government if it is a party to the dispute can either cancel or modify the award and Central Government can equally do so in case of award of national tribunal even though it may not be a party to the dispute and, therefore, the end-product by way of award even after adjudication cannot be said to be a decisive and determinative conclusion of the proceedings. It is not possible to agree with this contention for obvious reasons. Firstly, so far as adjudication of disputes between employees and employer other than in cases in which appropriate Government is party viz. as employer, is concerned, adjudication procedure is complete moment the award is pronounced by the Labour Court or the tribunal as the case may be. Government has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of one year mentioned in S. 19(3) starts from the date of the award and does not cover the period antecedent to the award." In the case of L. 1. C. of India v. D. J. Bahadur, AIR 1980 SC 2181, majority of the Supreme Court speaking through V. R. Krishna Iyer, J. has made the following relevant observations, in the light of the scheme of the Act about binding nature of the award : - "After expiry of the specific period contractually or statutorily fixed as the period of operation of an award or settlement, the same does not become honest but continues to be binding. Law abhors vacuum. Until a new contract or award replaces the previous one, the former settlement or award will regulate the relations between the parties. The precedents on the point, the principles of industrial law the constitutional sympathy of Part IV and the sound rules of statutory construction converge to the same conclusion." Thirdly, even in cases where appropriate Government is a party to the industrial dispute as an employer, where in a given contingency, it has been given power to suggest modification or rejection of the award or even in a case where the Central Government can suggest likewise in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strial Courts and Labour Courts under the Act are of peculiar nature and so far as such Courts are concerned, they have exclusive jurisdiction. Thus, Civil Court's jurisdiction is impliedly ousted qua those disputes, which can be resolved only through adjudicatory machinery of I.D. Act. Untwalia, J. speaking for the Supreme Court has made the following pertinent observations in connection with the jurisdiction of industrial tribunal and Labour Court under I.D. Act vis-a-vis jurisdiction of the ordinary Civil Courts "the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus : - (1) if the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court. (2) If the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 7 of the report to the effect that under Clause (d) of subs. (3) of S. 11, the Tribunal or such other authorities have also the same powers as are vested in civil Courts under the Code of Civil Procedure 1908 in respect of such other matters as may be prescribed. Although the Tribunal or other authorities specified in S. 11 are not Courts but they have the trappings of a Court and they exercise quasi-judicial functions. Mr. Gupta wanted to submit that the aforesaid observations indicate that the Supreme Court has ruled that the tribunal and other authorities are not Courts. However, it should be appreciated that the observations of the Supreme Court in that decision regarding the tribunals not being Courts have to be read in the light of the earlier observations which centre round the discussion regarding some of the powers of Civil Court under Code of Civil Procedure being invested in the tribunals under S.- 11(3). Thus, the observations of the Supreme Court in the last part of para 7 when they refer to Courts would clearly mean that the tribunals are not Courts as functioning under the Code of Civil Procedure as such Courts were already referred to in earlier part of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is difficult to appreciate this submission of Mr. Gupta. Even if tribunals or Labour Courts are constituted for a given contingency, once they are so constituted and once the disputes are referred to them for adjudication, the awards which result as a consequence of such adjudication cannot but be said to be result of exercise of judicial process by tribunals invested with judicial power of the State. It is not as if that judicial power of the State cannot be entrusted for a given limited period. It is entrustment which matters and not duration thereof. Consequerftly, this contention has to b,e repelled. 34. Placing reliance on S. 7 of the I.D Act, Mr. Gupta vehemently contended that the tribunals appointed under the said section are more or less ad hoc tribunals and are presided over by persona designata. In our view, this contention is totally besides the point as even if tribunals are appointed for a limited period, it is the nature of the function which is carried on by the tribunals that will be relevant for deciding whether tribunals are judicial tribunals or not and whether are invested with judicial powers of the State or not. 35. Mr. Gupta next contended that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Registrar in his individual discretion. The powers so invested were liable to be withdrawn. He was, therefore, found not to have been invested with judicial power of the State. He was merely a statutory arbitrator for arbitrating upon the dispute referred to him. We fail to appreciate how that decision can be of any relevance to the facts of the present case. As we have already observed earlier, once the reference is made by appropriate Government to the concerned Labour Court or industrial tribunal for resolution of the industrial dispute between the parties, that reference has got to be decided and adjudicated upon by the concerned Labour Court or the tribunal. It cannot be superseded by the Government thereafter. consequently, there is no comparison between the scheme of the Maharashtra Co-operative Societies Act examined by the Supreme Court in the aforesaid -decision and the statutory scheme with which we are concerned. 38. Mr. Gupta's submission that appropriate Government has been given power under S. 33-B to withdraw or transfer any proceeding under the Act pending before the concerned authority for adjudication and to transfer the same to any other tribunal or nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. S. 8 thereof deals with labour officers and assistant labour officers; While S. 9 deals with constitution of Labour Courts and states that the State Government shall, by notification in the Official Gazette, constitute one or more Labour Courts having jurisdiction in such local areas as may be specified in such notification and shall appoint persons having the qualifications specified in sub-section (2) to preside over such Courts. S. 10 enjoins the State Government to constitute a Court of industrial arbitration. As per subsection (2) thereof, the Industrial Court shall consist of three or more members, one of whom shall be its president. As per sub-section (4) thereof, every member of the Industrial Court shall be a person who is or has been a judge of a High Court or is eligible for being appointed a judge of such Court or has presided over a Labour Court for not less than ten years. As per the first proviso to sub-section (4), one member may be a person not so eligible if in the opinion of the State Government he possesses expert knowledge of industrial matters. As per S. 27A, save as provided in Ss. 32, 33 and 33A, no employee shall be allowed to appear or act in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) of paragraph A of sub-section (1) of S. 78 shall be commenced on an application made by any of the parties to the dispute, a special application under sub-s. (3) of S. 52 or an application by the labour officer or a representative -union and proceedings in respect of a matter falling under Clause (c) of the said paragraph A on an application made by any employer or employee directly affected or the Labour Officer or a representative union. Labour Court has also power to condone delay in filing applications* under S. 79. Thereafter follows sections pertaining to the procedure to be followed by the Labour Court in inquiries held pursuant to S. 79. As per section 80D, the judge presiding over the Labour Court has himself to record minutes of the proceedings in his own hand, embracing the material averments made by the parties affected and the material parts of the evidence. The decision has to be signed by him and has to set forth the grounds on which it is based. S. 81 empowers the labour court to refer question of law to the Industrial Court for decision. As per S. 83, in respect of offences punishable under the Act, a Labour Court has all the powers under the Code of Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the jurisdiction and powers vested in it. S. 93 deals with execution of order as to cost as passed by the Industrial Court. S. 94 lays down binding character of the order, decision or award of the Industrial Court. S. 95 lays down that the order of the Industrial Court shall be final, except on review. S. 95A provides that law declared by the Full Bench of the Industrial Court shall be recognised as binding and shall be followed in all proceedings under the provisions of the Act. Chapter 16 deals with penalties in connection with diverse matters enumerated in this chapter. S. 115 provides for binding nature of the orders of the Labour Court and wage board. It lays down that - "An order or decision of a wage board or Labour Court against an employer shall bind his successors-in-interest, heirs and assigns in respect of the undertaking as regards which it is made or given and such order or decision against a registered union shall bind all employees in the industry in'the local areas whose representative, the said union is". Section 115B deals with powers of the Labour Court or Industrial Court to interpret or construe its award when the question pertaining to the same arises an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. The way these authorities decide the disputes between employers and employees brought before them by applications and the way these decisions are definitive and determinative in character provide sufficient pointer to the fact that they are entrusted with the judicial power of the State. So far as the second test is concerned, they are statutory authorities under the Statute in question. So far as the third test is concerned, they have all the main trappings of the regular Courts, Labour Court is moved by applications under Section 79 within the prescribed period of limitation. These applications are to be dealt with in a judicial manner. The statute provides all the basic procedural machinery for enforcement of attendance of witnesses and for conducting of the trials effectively. Under these circumstances, even the third test is satisfied. So far as the last test is concerned, it is obvious that decisions rendered by the Labour Court and the Industrial Court in appeal have been given finality as laid down by the statute and they cannot be questioned in any Court. Even power of review is given to the Industrial Court. Consequently, the fourth requirement of capacity for passin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law or fact, no legal practitioner in his capacity as a legal practitioner or as a person holding a power of attorney shall be permitted to appear on behalf of any party at the hearing of a dispute. Section 130 empowers Registrar or his nominee or the board of nominees to issue order of attachment before award. As per Section 101, Registrar or his nominee or the Board of nominees, after giving a reasonable opportunity to the parties to the dispute to be heard, is empowered to make award on the dispute and also to provide for meeting expenses incurred by the parties to the dispute in connection with the proceedings and fees and expenses payable to the Registrar or nominee or the board of nominees. Section 102 provides for appeal to the Tribunal within two months of the decision or order under Section 101 or 100 as the case may be. Section, 103 provides for procedure for recovery of money as ordered under Section 101. Section 150 enjoins the State Government to constitute' a tribunal called Gujarat State Co-operative Tribunal to exercise the functions conferred on the tribunal by or under the Act.The Tribunal is to consist of a President and not more than three other members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given the same powers as- are given to ordinary civil courts of the land by the Code of Civil Procedure. Section 97 specifically lays- down that the period of limitation in the case of any dispute other than those mentioned in subsection (1) which are required to be referred to the Registrar under Section 96, shall be regulated by the provisions of the Limitation Act as if the dispute were a suit and the Registrar a Civil Court. Therefore, it is obvious that the register while adjudicating opon a dispute referred to him under Section 96, is for all intents and purposes, discharging the same duties and functions as a court of law is expected to do and, therefore, the Registrar or his nominee or Board of nominees would be a court. Admittedly, the dispute which is decided is a civil dispute and, therefore, it would be a civil proceeding. Therefore, the essential conditions to constitute a court namely that the court should have, apart from having some trappings of a judicial tribunal, power to give a decision or definitive judgment, which has finality and authoritativeness which are essential tests of judicial pronouncement are fully satisfied by the Registrar's nominee or the Board o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Gujarat Co-operative Societies Act, the Registrar's nominee as well as the Tribunal satisfy both the aforesaid tests for being held to be judicial authorities and courts within the contemplation of the Contempt of Courts Act, 1971. 45. Conclusion: - As a result of the aforesaid discussion, our answers to the referred questions in these Misc. Civil Applications are in the affirmative, meaning thereby that the Labour Courts under the Bombay Industrial Relations Act, 1946 and Industrial Disputes Act, 1947 and the Industrial Courts under the Bombay Industrial Relations Act, 1946 and Industrial Disputes Act, 1947 are courts and courts subordinate to the High Court in terms of Section 3 of the Contempt of Courts Act, 1971 or rather section 10 thereof and equally nominee of the Registrar acting under section 96 of the Gujarat Co-operative Societies Act, 1961 and deciding disputes under section 101 and the Co-operative Tribunal under that Act are courts and that too courts subordinate to the High Court, as contemplated by section 10 of the Contempt of Courts Act, 197 1. Both the Misc. Civil Applications will now be placed before the Division Bench for proceeding further in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
