Submission on behalf of Respondent

Maharashtra National Law University, Aurangabad

Project on

“Bharat Bank Ltd., Delhi and Ors.

Vs.

Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees' Union, Delhi”

Submitted under the guidance of

Ms. Neha Tripathi

Assistant Professor of Law

Submitted by:

Abhishek Jha

2017/BALLB/54

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Table of Contents

Index of Authorities

PART I

Introduction

PART II

Facts

Issues Raised

Arguments Advanced

Judgment

PART III

Analysis

Development of the Law

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Index of Authorities

Indian Judgements:

1.Niemela Textile Finishing Mills ltd vs. Second Punjab Tribunal Association AIR 1957 SC
329
2. J.K. Iron & Steel Co. Ltd. V Indian Staff Association AIR 1956 SC 231
3. Steel Authority of India Ltd. and Ors. vs. National Union Water Front Workers and Ors.
AIR 2001 SC 3527
4. L Chandra Kumar v Union of India ( 1997) 3 SCC 261

5. Malay Kumar Ganguly and Another Versus Dr. Sukumar Mukherjee and Others LNIND
2009 SC 1647

6. A.P. Power Coordination Committee and Ors. vs. Lanco Kondapalli Power Ltd. and Ors.
(16.10.2015 - SC) : MANU/SC/1244/2015

Foreign Judgements:

1.Rola Co. ( Australia ) Pty. Limited v. Commonwealth 69 CLR 185

Statutes

1.The Industrial Disputes Act (XIV of 1947).

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Introduction

This case is a part of those early landmark judgements during the foundational years of
constitutional jurisprudence which shaped today’s legal positions. This judgement is a result
of a challenge to an award given by an Industrial Tribunal setup by the Central Government
for the adjudication of a dispute between a Bank and its employees. The judgement gives
deep insight into the interpretation of Article 136, when the case warrants for its use and its
limitations. This judgement also dwells deep into the interpretation of the word ‘court’ and
‘tribunal using judicial powers ’ and ‘quasi-judicial tribunals ‘, thus drawing distinction
between the three and provides the canons by which the court is to be guided while deciding
when to admit an appeal in the three categories.

This judgement also formulates the test/ conditions through which ‘a court of law’ exercising
judicial function can be identified. Article 136 has been substantially elaborated in this
judgement and interpreted in various methods.

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II

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Facts

1.This case originated from an appeal by special leave from the determination of an Industrial
Dispute by the Industrial Tribunal Appointed under Ordinance VI of 1949.

2. Bharat Bank Limited , Delhi, the appellant was a company registered under the Indian
Companies Act. Its employees made certain demands and as a result of an Unfavourable
response from the Bank it appears that they struck work in 9th March 1949. The bank in its
turn served notices on them to resume work and proceeded to discharge a number of them
between the 19th march and 24th march as they failed to do so. The Central Government
constituted a Tribunal consisting of three persons for the adjudication of industrial disputes in
banking companies under section 7 of the Industrial Disputes Act (14 of 1947). The disputes
mentioned in schedule II of the notification were referred under section 10 of the Act to this
Tribunal. Item 1

3. The dispute under this item between Bharat bank and its employees was heard by the
Tribunal at Delhi and its award was on the 19th January 1950 and was declared to be binding
for a period of one year. The award of the Tribunal was signed by two out of its three
members.

4. This appeal before the court on special leave is directed against an award made by the All
India Industrial Tribunal ( Mentioned above), holding that 26 persons who were employees
under the appellants were improperly dismissed by the latter and should be reinstated. Further
directions were given in the award regarding salaries and allowances that were to be paid to
the dismissed employees. This award was declared to be binding n the terms of the provisions
of section 15 and 19 of the Industrial Disputes Act by the Central Government on the 30th of
January 1950 and it was directed to remain in operation for a period of one year. It is against
this award that this appeal was preferred.

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Issues Raised

Whether the Industrial Disputes Tribunal is a court or a tribunal exercising judicial functions or a
quasi-judicial tribunal ?

II

Whether there exists a right of appeal under Article 136 ( Special Leave Petition ) from an
award of such tribunal ?

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Arguments Advanced

1. The Industrial Disputes Tribunal neither falls within the ambit of a ‘court ‘ or a
tribunal ‘.

It is humbly submitted that the functions performed by the Industrial Disputes

Tribunal is not a judicial function in nature. It does not fulfil the criteria of a court nor
a tribunal exercising judicial function.

1.1 The Industrial Tribunal does not perform judicial function

Under section 15(1) of the Industrial Disputes Act 1(“the Act “), the Industrial
Tribunal has got to submit its award to the appropriate Government and sub-
section (2) lays down that on receipt of such an award, the appropriate
Government shall by order in writing declare the award to binding. Under section
19(3) of the Act, the government has to specify the date when the award would
come into force and also to fix the period during which it would remain binding
and this period shall not exceed on year.
In Rola Co. ( Australia ) Pty. Limited v. Commonwealth 2, it was held that what is
necessary for a determination to be a judicial determination is that it should be
binding by its own force and without the aid or instrumentality of any other
authority or power. The essence of judicial determination is that nothing further
remains to be done except the enforcement of the judgement, a step which is
compelled automatically by the law of the land.
1.2 The industrial tribunal is not a judicial body as it is not bound to decide matters
according to the law of land.
Sir Maurice Gwyer in his deposition before the committee on Minister’s power
appointed by the English Parliament in 1929 stated that “ a clear distinction is to
be drawn between judicial and quasi- judicial powers. The judicial power was
defined by the witness as a power to decide a question of legal in a dispute
between parties involving either a finding of fact or the application of fixed rule or
1
The Industrial Disputes Act (XIV of 1947).
2
Rola Co. ( Australia ) Pty. Limited v. Commonwealth 69 CLR 185

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principle of law or involving both. It is submitted that this draws a clear

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distinction between judicial and quasi-judicial powers. The Industrial Disputes
Tribunals does not posses’ judicial powers as it does not follow uniform principles
of law of the land.

2. There exists no right of appeal under Article 136 against the award of an Industrial
Tribunal
2.1 Article 136 does not contemplate or includes within its scope an appeal against an
award of an Industrial Tribunal.
As pleaded above, the Industrial Tribunal does not exercise judicial functions and
therefore a determination made by does not qualifies as a judicial determination as
is evident in the section 19(3) of the Act which requires the appropriate
government to notify and give effect to the award.
In cooper v Wilson, the King’s Bench formulated four pre conditions for a valid
judicial determination, the fourth condition is the requirement of a valid
determination. It is submitted that in this case, the Industrial Tribunal by itself is
not empowered and competent to give a valid judicial determination. Therefore,
the determination contemplated under Article 136 4of the Indian Constitution does
not include determination by an Industrial Tribunal.
2.2 Alternatively, this case lacks the merit for the use of such extraordinary powers
provided by the Article 136
It is humbly submitted before the court that even if assuming the case is
maintainable under article 136, the award in challenge, does not calls for the
extraordinary use of power provided under Article 136. A petition under Article
136 can only be entertained in cases where such quasi-judicial body attempts to
usurp jurisdiction which it does not possess, its proceeding violates natural justice,
such authority refuses to exercise jurisdiction, or the proceedings adopt extraneous
or irrelevant considerations.
None of the above conditions are fulfilled in this case, therefore the petition
should not be allowed.
3
Vide committee of minister’s powers, Minutes of Evd., Vol. II, p. 15-16 and also Robson’s Justice and
Administrative Law p 319

4
Article 136, the constitution of India 1950

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Judgement

The corum consisted of five judges, wherein it was held by majority that the petition against
the Award of the Industrial Tribunal could not be allowed as the case lacks the merit to do so.
M.C. Mahajan J. ,however, had a dissenting opinion as he found that the findings of the
tribunal did not take into account the evidence and therefore calls for the use of power vested
in the court by Article 136 of the Indian Constitution.

It was also a majority opinion, that although Industrial Tribunal was a quasi- Judicial
Authority, an appeal under Article 136 could lie but that again would be subject to limitations
as prescribed by the judgement.

Some of the noteworthy excerpts of the findings of different judges are : -

Hiralal Kania, C.J. РҦ 3 whether under article 136 the Court has jurisdiction to entertain an
application for the 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 article 136 is wide enough to give jurisdiction to the Court to entertain an
application for leave to appeal, although it is obvious that having regard to the nature of the
functions of the Tribunal, this Court will be very reluctant to entertain such an application ”

Saiyid Fazl Ali, J :- Ҧ 18 Dealing now with the merits of the appeal, I am not prepared to
hold that this is a proper case for interference with the adjudication of the Tribunal. The
power of this Court was invoked by the appellants on four grounds. These grounds have been
elaborately examined by Mahajan J. and two of them have been pronounced to be wholly
inadequate for justifying our interference. My view with regard to these two grounds is
identical with that of Mahajan J. and I do not wish to add to what he has already said on the
subject. The remaining two grounds also are, in my opinion, wholly insufficient to justify the
exercise of our special power under article 136 ”

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M.C. Mahajan, J :- “ ¶40 These overriding powers presuppose the existence of a valid
determination by a tribunal. If that determination is in excess of jurisdiction or otherwise
proceeds in a manner that offends against the rules of natural justice and is set aside by
exercise of power under article 136, then no occasion arises for exercise of governmental
power under the Act. Given a valid award, it could not be denied that the Government could
exercise its powers in any manner it considered best and the exercise of that power is outside
the constitution of this Court.”

Ҧ47 the Privy Council in Fakira v. King Emperor MANU/PR/0042/1937. In that case section
377 of the Code of Criminal Procedure as modified and as applicable to Hyderabad stood as
follows :- "In every case so submitted, the confirmation of the sentences or order passed by
the Court of the Resident at Hyderabad shall, when such Court consists of two or more
Judges, be made, passed and signed by at least two of them.

In Fakira's case the order of confirmation was only made, passed and signed by one of them,
though the Court of the Resident consisted of two Judges. Their Lordships held that the
peremptory provisions of section 377 had not been complied with and that the sentence
passed had not been validly confirmed. The appeal was allowed and the case was remitted to
the Court of the Resident. The provisions of section 18 of the Industrial Disputes Act are also
of a peremptory nature. Reference may also be made to a case arising under the Bar Councils
Act reported in In re An Advocate, Madras [A.I.R. 1942 Mad. 267], where one member of
the tribunal under that Act had died and had not signed the report. I was held that the tribunal
ceased to be properly constituted and that the report could not be considered.

¶48 . For the reasons given above I would quash this award and direct that the Tribunal
which is still functioning should read judge item 18 of the reference and then submit its
award on this point to Government. The employees cannot be held responsible for the method
of procedure adopted by two members of the Tribunal. Each party will have to bear their own
costs in this Court. The appeal is allowed to the extent indicated above.”

B.K. Mukherjea , J :- ¶ Questions, however, may and do arise where such quasi-judicial body
attempts to usurp jurisdiction which it does not possess. It may assume jurisdiction under a
mistaken view of law or refuse to exercise jurisdiction properly by adoption of extraneous or
irrelevant considerations; or there may be cases where in its proceedings the tribunal violates

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the principles of natural justice. In all such cases the most proper and adequate remedy would
be by writs of certiorari or prohibition and the Court having authority may direct that the
decision of the body or tribunal might be brought up to be quashed for lack of jurisdiction or
for mistake apparent on the face of it; and if the proceedings had not terminated at that time, a
writ of prohibition may also be issued for preventing the tribunal from exceeding its
jurisdiction.”

“The issuing of such writs would not be an exercise of appellate powers which means the
rehearing of the case and passing of such judgment which in the opinion of the appellate
Court the original tribunal should have made. The object of these writs is simply to keep the
exercise of powers by these quasi-judicial tribunals within the limits of jurisdiction assigned
to them by law and to restrain them from acting in excess of their authority. These principles
are well settled and require no elucidation [Rex v. Electricity Commissioner [1924] 1 K.B.
171; Board of Education v. Rice [1911] A.C. 179. Our conclusion, therefore, is that article
136 of the Constitution does not contemplate a determination given by the Industrial
Tribunal.”

Ҧ69. Even assuming for argument's sake that we have got jurisdiction under article 136, the
exercise of which would depend upon the circumstances of each case, in view of the reasons
which we have set out above, this is not an appeal which, in our opinion, should be admitted
even if we have the power to do so. The result is that the preliminary objection succeeds and
the appeal fails and dismissed with costs.”

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III

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Analysis

This judgement touched upon various aspects of law and not only formulated the test of
judicial function but also provided the canons by which the apex court is to be guided while
distinguishing various forms of adjudicating bodies.

One of the peculiar features about this judgement is that almost none of the judges are in
agreement with their brother judges in every sense except Patanjali Shashtri, J. While
Mahajan, J and Kania C.J. are in agreement with respect to the finding related to the question
of exercise of judicial power of by the Industrial Tribunal. Both of the judges have divergent
opinions related to exercise of extraordinary powers of Article 136. Kania, C.J. has provided
the reasons for not exercising the jurisdiction as lack of merits and Mahajan, J has justified
the use of such power because, according to his lordship’s findings, it is a case where
evidence has not been taken in accordance with the principles of fair procedures and therefore
qualifies for the use of Art. 136. It is interesting to note that all of the judges do agree with
the legal position that Article 136 has provided the court with wide enough powers to
entertain any appeal ( as provided by under article 136 ) but however disagree due to
procedural or qualification related requirements, such as the determination made by the
Industrial tribunal not being a judicial determination. Thus, the position of law established
after this judgement was that, the appeals/ petition under article 136 could be entertained but
only in cases where : 1. quasi-judicial body attempts to usurp jurisdiction which it does not
possess, 2. its proceeding violates natural justice, 3. such authority refuses to exercise
jurisdiction, or 4.the proceedings adopt extraneous or irrelevant considerations.

The judgement is considered as landmark and is good law till date and has been applied in
various case laws.5

The Author registers his dissent with respect to the findings that there could not lie any
appeal whatsoever in any case from an Industrial Tribunal ( opinion of B.K. Mukherjea, J. ),
as it would defeat the purpose and intention of the constituent assembly in providing
extraordinary powers to the apex court in the interest of justice.

5
Steel Authority of India Ltd. and Ors. vs. National Union Water Front Workers and Ors. AIR 2001 SC 3527;
See also Malay Kumar Ganguly and Another Versus Dr. Sukumar Mukherjee and Others LNIND 2009 SC 1647

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Development of the Law

The jurisprudence was further reinstated and developed in the case of Niemela Textile Finishing
Mills ltd vs. Second Punjab Tribunal Association, wherein, the court held the Industrial tribunal has
to act judicially as it is a quasi-judicial authority. It has some of the trappings of a court. It has to
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apply the law and also the principles of justice, equity and good conscience

It was further held in J.K. Iron case-Industrial Tribunal is a quasi- judicial authority discharging quasi-
judicial functions and is not purely an administrative body. Therefore, its adjudication must be on
the basis of “fairness and justness. ”Although Industrial Disputes Act is the governing law in case of
Tribunals and the limits shall be the limits of the Act, social justice should not be divorced from its
action and is not permissible for the case in hand. 7 The above was also reinstated in the case of Steel
Authority of India Ltd. and Ors. vs. National Union Water Front Workers and Ors. 8

In L. Chandra Kumar v Union of India, it was reinstated that in matters related to specialised
tribunals, the legislature could make hierarchy between such tribunals ( including Industrial
Tribunals ) but could not exclude the jurisdiction of the supreme court under Article 136. Therefore,
the awards of Industrial Tribunals are subject the jurisdiction of Article 136 of the Constitution of
India. 9

In a 2015 supreme court judgement10, the test laid down in 'Bharat Bank Ltd. v. Employees of Bharat
Bank Ltd.11' was again reiterated -,where the test of a judicial tribunal as laid down in a passage from
- 'Cooper v. Willson', 1937-2 KB 309 (F) at p. 340, was adopted by the apex court.

'A true judicial decision presupposes an existing dispute between two or more parties, and then
involves four requisites: - (1) The presentation (not necessarily orally) of their case by the parties to
the dispute, (2) if the dispute between them is a question of fact, the ascertainment of the fact 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; (3) if the dispute between them is a question of law,
the submission of legal arguments by the parties; and (4) a decision which disposes of the whole
matter by a finding upon the facts in dispute and an application of the law of the land to the facts so
found, including where required a ruling upon any disputed question of law'

6
Niemela Textile Finishing Mills ltd vs. Second Punjab Tribunal Association AIR 1957 SC 329
7
J.K. Iron & Steel Co. Ltd. V Indian Staff Association AIR 1956 SC 231
8
Steel Authority of India Ltd. and Ors. vs. National Union Water Front Workers and Ors. AIR 2001 SC 3527
9
L Chandra Kumar v Union of India ( 1997) 3 SCC 261
10
A.P. Power Coordination Committee and Ors. vs. Lanco Kondapalli Power Ltd. and Ors. (16.10.2015 - SC) :
MANU/SC/1244/2015
11
AIR 1950 SC 188

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