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Harries, C.J.—This is a petition filed by Lloyds Bank Limited praying for the issue of writs of certiorari, prohibition or mandamus on the opposite parties. The Rule nisi was issued by Banerjee J. and the matter came before Bachawat J. for hearing. As the case involved points of considerable difficulty and importance the learned Judge referred the matter to the Chief Justice for the constitution of a larger Bench under Ch. V, Rule 3 of the Original Side Rules. The present Bench was accordingly constituted to hear the petition.
The Petitioners are a well-known English Bank which carry on business in India and have two branches in the city of Calcutta within the limits of the Ordinary Original Jurisdiction of this Court.
The two branch offices of the Petitioners are situated in No. 29, Netaji Subhas Road, and No. 41, Chowringhee, and at all material times the Bank employed about 600 employees at these two offices.
In the beginning of the year 1948 disputes arose between various banks in this city and their employees and on January 17, 1948, the Government of West Bengal, acting under powers conferred by the Industrial Disputes Act, 1947, referred to an Industrial Tribunal for adjudication all industrial disputes which had arisen or were apprehended between all members of the Bengal Chamber of Commerce (including the Petitioners) and their respective employees. The said Tribunal consisted of Sri A.T. Das Gupta, Sri S.C. Chakrabarty and Sri S.C. Dutt Gupta.
In or about the month of August, 1948, whilst these disputes were being heard by the said Tribunal, the employees of the Central Bank of India Limited went on strike alleging apparently that that bank had not carried out the provisions of some earlier award or agreement. The employees of Lloyds Bank threatened to go on strike in sympathy with the employees of the Central Bank, and Lloyds Bank, it is said, warned their employees that the threatened strike would be illegal inasmuch as proceedings were then pending for the settlement of all industrial disputes between the bank and its employees before the said Industrial Tribunal to which I have referred. It is said that the Government of West Bengal also made it clear that the threatened sympathetic strike would be illegal. In spite of these warnings, a large majority of the employees of Lloyds Bank struck work on August 17 and, in breach of their contracts of service, absented themselves from their work. Lloyds Bank, thereupon, applied to the Government of West Bengal for authority to prosecute certain of its employees under Sections 26 and 27 of the Industrial Disputes Act and authority was granted to the General Manager of Lloyds Bank in Eastern India, one Mr. W.T.C. Parker, to prosecute eleven of the employees who had taken a leading part in this sympathetic strike. On October 19, 1948, the said Mr. Parker made a complaint before the chief presidency magistrate against 11 of the employees and suspended them from their duties, though the Bank continued to pay these men their full pay and emoluments. On June 4, 1949, these eleven persons were convicted by the chief presidency magistrate u/s 26 of the Industrial Disputes Act, whereupon the convicted persons were dismissed from service. These convictions were subsequently upheld in revision by this Court.
Immediately after this prosecution was launched, the Bank received from the Association representing the employees a letter stating that, unless the prosecutions and suspension orders were withdrawn by 10-30 a.m. on October 20, 1948, the employees of the Bank who had previously returned to work would go on strike. As the prosecutions were not withdrawn, the employees started what has been described as a pen-down strike. In other words, they attended at the two offices but refused to carry out their duties or do any work. Information was conveyed to the Labour Department of the Government of West Bengal and in the evening of October 20, 1948, the Bank published the following order:
If the strike is called off with immediate effect, the Bank will take no action whatsoever as regards the strike of to-day, October 20, 1948. Regarding suspension, the persons already suspended will remain suspended.
On October 21, 1948, a majority of the employees of the Bank attended at the two offices giving an oral undertaking that they would perform their duties. They, however, refused to do any work and continued the so-called pen-down strike throughout the day. There was again a meeting with the Labour Minister and officials of the Labour Department of the Government of West Bengal and later the general manager issued the following order:
I repeat the offer which I made yesterday evening, to include the continued pen down strike of to-day, October 21, on the understanding that the strike is called off immediately and that the staff resume normal work to-morrow, October 22. This, however, is conditional on all members of the staff agreeing, if required by the Bank, to work on Saturday afternoon and on Sunday, October 23, 24, to bring up the arrears of work of the following week. Such work on Saturday and Sunday or in the evenings is to be without any additional remuneration.
At about 9-30 p.m. on the same evening the employees accepted the offer made by the Bank and on October 22, 1948. the Petitioners'' employees resumed their work. The Bank issued a notice that they would be required to work additional hours up to 5 p.m. on Saturday, October 23, and up till 7 p.m. from Monday, October 25, to Friday, October 29, to make up the arrears of work caused by the strike. The employees, however, in alleged breach of their agreement, refused to work after 2 p.m. on Saturday, October 23. On Monday, October 25, the Bank, accordingly, withdrew its earlier offer to pay the salaries of the employees for October 20 and 21 and stated that instead overtime work would be paid for at the normal rates. The Bank also made it known that such employees as did not agree to work overtime to clear off the arrears and did not signify their willingness to perform the duties of their employment, by signing a declaration to that effect, would be dismissed.
On Tuesday, October 26, 1948, very few of the employees attended the offices and none of them signed the declaration asked for. The Bank, accordingly, on the said date dismissed or terminated the employment of about 500 of its employees, including the forty persons named in schedule X annexed to the petition.
The Bank, thereupon, advertised for applicants for employment to fill about 500 vacancies caused by these dismissals. About 5,500 applications for employment were received and about sixty of these applicants were accepted and given employment. Subsequently, on November 16, 1948. about 474 of the dismissed employees of the Bank applied for re-employment and the Bank re-employed 434 of these men. The remaining 40 ex-employees whose names are mentioned in schedule X to the petition were not re-employed.
According to the petition, these forty men were not re-employed as the past service of each of them was unsatisfactory. It is said that, in the case of each of these 40 men, the general manager obtained full reports of past service and the decision not to employ these men was only arrived at by the general manager after careful consideration of the case of each one of them. It is further stated in the petition that, in borderline cases and, particularly, in cases where the ex-employees had a substantial length of service, they were reemployed though their records were far from satisfactory. On December 23, 1948, the Bank, at the request of the Labour Commissioner of the Government of West Bengal, supplied the latter with a statement containing the names of the forty employees who were not re-employed and the summary of the reasons why each of these forty men was not re-engaged.
The employees who had been re-engaged returned to duty and the work went on satisfactorily. On January 28, 1949, all save one of the employees of the Bank caused a written statement to be forwarded to the Industrial Tribunal which was enquiring into the earlier disputes, stating that they had no longer any dispute with the Bank and that the Association which purported to represent the employees had no authority to employ them. A copy of this statement was annexed to the petition and marked A.
On April 30, 1949, the Central Government promulgated an Ordinance, No. VI of 1949, empowering the Government to appoint a Tribunal to adjudicate upon industrial disputes between the various banks in India and their employees and by the terms of this Ordinance the proceedings before the local Tribunal appointed by the Government of West Bengal abated.
By an order dated June 13, 1949, the Central Government, purporting to act under powers conferred by the Industrial Disputes Act, 1947, and the Ordinance to which I have made reference, constituted an Industrial Tribunal consisting of Mr. K.C. Sen, Mr. S.P. Verma, and Mr. J.N. Majumdar, and by another order of the same date referred to this Tribunal all industrial disputes alleged to have arisen between certain banking companies throughout India and their employees. Amongst the disputes referred to this Tribunal was the dispute between the Petitioners and their employees at Calcutta. Amongst the matters referred to the Tribunal for adjudication were (a) item 18,-Retrenchment and victimisation (specific cases to be cited by employees); and (b) Payment of workers reinstated under item 18.
The Tribunal, constituted as stated above, called for Statements of the cases of the employees and the Bank, and the Association said to be representing the employees filed a statement and so did the Bank. The Association claimed that the forty men who had not been re-employed or reinstated had been victimised and they claimed that they should be reinstated and paid their full wages. The Bank, on the other hand, claimed that there was no dispute between them and their employees, and, therefore, that the Tribunal had no jurisdiction in the matter. They also alleged that there had been no victimisation and that the refusal to re-employ these men was justified on the merits.
The Industrial Tribunal, set up by the Central Government, came to the city of Calcutta in the early part of the month of October, 1949, and proceeded to hold sittings in the High Court Buildings. It is said by the Bank that the first sitting was held on or about October 8, 1949, and that the Tribunal was scheduled to leave Calcutta on October 14, but that their date of departure was subsequently postponed to October 17. During this period, it is said that it was the intention of the Tribunal to dispose of all claims for interim relief between the various banks in Calcutta and their employees and also all claims for reinstatement of employees who had been dismissed.
On October 13, 1949, the case of Lloyds Bank Limited was called on and after Mr. M.M. Sen, counsel for the Association representing the employees, had opened the case for the Association of the employees, the Tribunal, it is said, without taking any evidence whatsoever indicated that, as the ex-employees had been guilty of participating in illegal strikes, the Tribunal was unable to interfere in the matter of directing reinstatement. On that day the Bank was not called upon to place its case before the Tribunal, but counsel for the Bank was merely asked whether, as a matter of grace, the Bank would agree to re-employ the forty employees who had not been reinstated. On behalf of the Bank Mr. Ginwala stated that the Bank would not re-employ these forty men.
On October 14, 1949, it is said that Mr. M.M. Sen, counsel for the Employees'' Association, obtained permission from the Tribunal to re-open the case and notice was sent to the Bank that the matter would be re-considered on October 15. The matter was re-opened on October 15 and counsel for the Bank was heard by the Tribunal. It is the case for the Bank that the Tribunal were asked to hear evidence on behalf of the Bank justifying the refusal of the Bank to re-employ these forty employees. Further, the Tribunal was asked to call for the document, which had been sent to the Labour Commissioner of the Government of West Bengal at his request, in which a summary of the reasons for the Bank''s refusal to re-employ each of the forty men was given. Further, the Bank, it is said, tendered to the Tribunal a copy of this statement, but, according to the Bank, the Tribunal refused to consider this statement and further refused to hear any evidence whatsoever upon the matter. The Bank also tendered to the Tribunal the original statement, signed by the employees and forwarded to the local Industrial Tribunal, to the effect that no dispute existed between them and the Bank, but the Tribunal refused to consider that statement. The hearing was concluded at or about 1 p.m. on October 15. According to the Bank, the hearing of this dispute on October 13 and 15 only lasted a matter of four hours or so, at most. It is to be observed that one of the original members of the Tribunal, namely, Mr. S.P. Verma, was unable to sit and Mr. Chandra Sekhar Aiyar was appointed in his place and the Tribunal as it sat in Calcutta consisted of Mr. Sen, Mr. Majumdar and Mr. Aiyar.
On or about January 5, 1950, the said Tribunal made an award and according to the document the said award was made at "Camp Calcutta." This award directed the Bank, within a month from the date when the said award should become operative, to reinstate the said forty persons whom they had refused to re-employ and to pay them their pay and allowances for a period of six months prior to the date of such reinstatement. This award was signed only by Mr. K.C. Sen and Mr. J.N. Majumdar. Mr. Chandra Sekhar Aiyar did not sign the award as it is alleged that he was not available at that time.
On January 17, 1950, the Central Government by an order in writing published the award and by a subsequent order of the same date declared the award binding for a period of one year, but it did not specify the date from which the award would come into operation. The said award was published in the Gazette of India about January 28, 1950.
The Bank has contended before us that this award was made without jurisdiction and is void. Accordingly, it has contended that this Court should call for the record and quash the award. In the alternative, it is urged that this Court should prohibit the Tribunal and the parties from taking any further steps under the award and, in the further alternative, it is claimed that this Court should order the Government of India and the Conciliation Officer concerned with industrial disputes to refrain from taking any steps for enforcing the award.
A preliminary point was taken by the Respondents that this Court had no jurisdiction to entertain this petition by reason of the fact that the award in this case was made before the Constitution came into force. The hearing of the dispute took place in Calcutta in October 1949 and the award was made at "Camp Calcutta" on January 5, 1950. On January 17, 1950, the Central Government by an order in writing published the award and by a subsequent order of the same date declared the award to be binding for a period of one year. The award, however, was not published in the Gazette of India until January 28, 1950.
It seems clear that the award was made before the Constitution came into force, that is, before January 26, 1950. Before that date this award could not be challenged by the issue of any prerogative writ unless the matters arose within the limits of the Ordinary Original Civil Jurisdiction of this Court. The present application, it is said, is made under Article 226 of the Constitution which gives this Court a right to issue writs in the nature of prerogative writs throughout the territories in relation to which it exercises jurisdiction, i.e., throughout the State of "West Bengal. This Court had, previous to the Constitution, no jurisdiction to issue any prerogative writs outside the limits of its Ordinary Original Jurisdiction and that is conceded.
If the jurisdiction of this Court is being moved under Article 226 of the Constitution, it appears to me that no writs could be issued, because Article 226 of the Constitution can only have application where awards or orders have come into existence after the Constitution came into force, that is, after January 26, 1950.
It has been contended that the Supreme Court in the case of The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, , have held that the Constitution has retrospective effect and that it has given a Court the right to interfere with awards of industrial tribunals though such awards might have been made before the Constitution came into force.
In the Bharat Bank case (supra), an award of an Industrial Tribunal was made before the Constitution came into force and an application was made to the Supreme Court for special leave to appeal under Article 136(1) of the Constitution. Special leave was given and the appeal was heard and eventually dismissed. A majority of the Supreme Court held that it had jurisdiction to entertain the appeal. It seems, however, that no point was taken that no appeal lay by reason of the fact that the award had come into existence before Article 136(1) of the Constitution was enacted by the Constituent Assembly and there is no reference to this matter in any of the judgments. However, the case did decide that the Supreme Court could, on grant of special leave, hear the case though the award had come into existence before the Constitution.
Their Lordships of the Privy Council, in the case of Delhi Cloth and General Mills Company, Limited v. income tax Commissioner, Delhi (1927) L.R. 54 IndAp 421, 425, held that a right of appeal to the Privy Council from a decision of the High Court upon a case stated u/s 66 of the Indian income tax Act, 1922, is given by Sub-Section 2 of Section 66A (added by Act XXIV of 1926) only in a case which the High Court certifies to be a fit one for such an appeal and further that no right of appeal arose where the decision of the High Court was before April 1, 1926, the date when Act XXIV of 1926 came into operation, since the Act showed no intention to interfere with the finality of decisions already given. This case followed the principle laid down in an earlier decision of their Lordships of the Privy Council in Colonial Sugar Refining Company v. Irving [1905] A.C. 369. At p. 425 Lord Planes burgh, who delivered the judgment of the Board in the Delhi Cloth Mills case (supra), observed:
The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Company v. Irving (supra) where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear suggestion that a judgment of the High Court referred to in Sub-section (2) is one which under Sub-section (1) has been pronounced by "not less than two Judges of the High Court'', a condition which was not itself operative until the entire section came into force.
On behalf of the Respondents, it has been contended that the principle enunciated in the Delhi Cloth and General Mills Company''s case (supra) must be applied to the Constitution of India. There is nothing in Article 136(2) or in Article 226 of the Constitution to suggest that those Articles should have retrospective effect. That being so, it is contended that they must be held to have application only to orders or awards or such like which have come into existence since the Constitution came into force.
Applications or petitions under Article 226 are of course different from appeals, but they are applications or petitions challenging the validity of orders and may result in orders being quashed or virtually set aside or varied. The procedure is different but the result may be much the same. If Article 226 of the Constitution applies to awards made before the Constitution came into force it would permit of interference with the finality of orders which were final when the Constitution came into force. Such a construction is not permissible in the case of statutes creating a right of appeal and creating a right to interfere with the finality of orders already become final. If the same rule of construction applies to the Constitution as applies to statutes then retrospective effect could not be given to these Articles unless such was expressed in terms or must be held to be implied from the words of the Articles. I do not think that any real distinction can be drawn between interference with the finality of orders by way of appeal or by way of prerogative writs. Both are means of depriving orders of their finality and both are proceedings touching rights in existence. Therefore, it appears to me that the principle of the Delhi Cloth and General Mills Company''s case (supra) would apply to all proceedings which would have the effect of challenging the finality of orders and rendering orders, which would otherwise be final, liable to be reversed or varied.
There appears to me to be nothing in Article 226 from which it could be inferred that it was intended to have retrospective effect. In fact, there are indications that it was clearly intended to have only prospective effect, because the High Court is given power to issue these writs "for the enforcement "of any of the rights conferred by Pt. III and for any other "purpose". The rights conferred by Pt. III of the Constitution are what are known as "fundamental rights". These rights were enunciated as fundamental rights for the first time by the Constitution and one of the purposes of Article 226 was to provide machinery for enforcement of these rights, that is, for the enforcement of rights actually created by the Constitution. It is true that the powers to issue writs granted by Article 226 can also be exercised for any other purpose. But it seems to me that those words must be construed as meaning any other purpose for which these writs could be applied, where such purposes arose after the Constitution.
The question now arises whether it is open to this Court to accede to the Respondent''s contention that no writ could be issued under Article 226 of the Constitution having regard to the decisions of the Supreme Court in the Bharat Bank case (supra), to which I have already made reference. Decisions of the Supreme Court are binding on all High Courts and these decisions cannot be disregarded. Inferior Courts have no right to refuse to follow a decision of the Supreme Court merely because a point appears, in the view of an inferior Court, to have been overlooked. A superior Court though it does not mention a point may not have overlooked it. It may well have considered the point on its merits and regarded it as one not worth a detailed discussion. It cannot be assumed that because a point is not discussed in a judgment of the Supreme Court such was not argued or considered.
It seems clear, however, in this case, that the point now before us for consideration was never argued and never considered by the Supreme Court. It is true that the Supreme Court is not bound by decisions of their Lordships of the Privy Council, but the view has been expressed that such decisions are binding on the lower Courts unless expressly dissented from by the Supreme Court. I think it is clear that, if the Supreme Court intended to dissent from or distinguish any decision of importance of the Privy Council, that Court would deal with the question and expressly give its reasons for dissenting and arriving at a different conclusion or for distinguishing the case. I find it very difficult to believe that the Supreme Court would, on any important matter, arrive at any conclusion different from the Privy Council without a discussion of the decision of the Privy Council and without giving reasons for distinguishing or differing and dissenting from that decision.
In the Bharat Bunk case (supra), there was a decision of the Privy Council which might have been very much in point. I do not think that the Supreme Court, in that case, ever intended to lay down a different rule from that laid down by the Privy Council. It appears that, as the point was not taken, it was never considered. That being so, it cannot, I think, be contended that it has been laid down now in the Republic of India that provisions giving a right of appeal or giving a right to challenge the finality of orders which had become final before such provisions were enacted have retrospective effect without such intention being clear by express words or necessary intendment. I think it is still open to this Court, though inferior to the Supreme Court, to consider whether or not Article 226 has any retrospective effect.
It was contended, on behalf of the Government of India, that a different construction should be given to the Constitution from that given to a statute. It was urged that the provisions of a written constitution should be construed liberally and reliance was placed on the observations made by Lord Sankey in the case of British Coal Corporation v. The King [1935] A.C. 500, 518 at p. 518:
Indeed, in interpreting a constituent or organic statute, such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for Canada : [1930] A.C. 124, 136"Their Lordships do not conceive it to be the duty of this Board-it is certainly not their desire-to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs. The Privy Council, indeed, has laid down that Courts of law must treat the provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes. But there are statutes and statutes; and the strict construction deemed proper in the case, for example, of a penal or taxing statute or one passed to regulate the affairs of an English parish, would be often subversive of Parliament''s real intent if applied to an Act passed to ensure the peace, order and good government of a British Colony: see Clement''s Canadian Constitution, 3rd ed., p. 347".
There can, I think, be no doubt that a liberal construction must be given to the provisions of the Indian Constitution which came into force on January 26, 1950. It would, however, in my view, be giving the provisions of the Constitution more than a liberal construction if we construed Article 136(1) and Article 226 of the Constitution as having retrospective effect. If these Articles are held to entitle a Court to interfere with orders which were final when the Constitution came into force, it would be very difficult to draw any limit to such interference. How far back, for example, could a Court go? Periods of limitation could not very well apply, because time could not be said to begin to run until the remedy was given by the Constitution. To give these Articles retrospective effect would be to create innumerable difficulties and, that being so, such effect cannot be given, though a most liberal construction be given to these Articles.
On behalf of the Petitioners, it was contended that the Delhi Cloth and General Mills Company''s case (supra) could have no application to the present case as the present petition was concerned with matters of jurisdiction. An appeal, it is said, is concerned with the correctness of the decision whereas a petition for a writ of prohibition or certiorari is concerned not with the correctness of any decision but with the jurisdiction or capacity of a tribunal to make any decision. That being so, the principle enunciated in the Delhi Cloth and General Mills Company''s case (supra) should have no application.
It appears to me, however, that an award of an industrial tribunal was final when it was made. It could not be challenged by way of an appeal. Neither could it be challenged by way of a prerogative writ unless the case fell within the limits of the Ordinary Original Jurisdiction of this Court. There was nothing on the face of this award to show that it was without jurisdiction and there can be no question that it was final and bound the parties when the Constitution came into force. The only way in which it could have been challenged was by way of appeal special leave in the Supreme Court or by the issue of a prerogative writ, and, in my view, no distinction can be drawn between this type of case and the Delhi Cloth and General Mills Company''s case (supra) on the ground that the question involved here is purely one of jurisdiction.
Further, it was contended that the award could not be regarded as having been made until after the Constitution came into force. Reliance was placed on Section 20(5) of the Industrial Disputes Act, 1947, which provides that proceedings before a Tribunal shall be deemed to have commenced on the date of the reference of the dispute for adjudication and such proceeding shall be deemed to have concluded when the award is published by the appropriate Government u/s 17. It is common ground that the award was published in the Gazette of India on January 28, 1950, that is, after the Constitution came into force and it is said that the award could not be regarded as having been made until that day.
Section 17 of the Industrial Disputes Act provides that an award of a Tribunal shall, within a period of one month from the date of its receipt by the appropriate Government, be published in such manner as it thinks fit. According to the Petitioners, the Government of India thought fit to publish the award in the official gazette and, therefore, there was no publication until January 28. However, the notification recites the publication of the award on January 17, that is, nine days before the Constitution came into force. It seems clear from the terms of the notification that the actual publication took place before the award was printed in the Gazette of January 28, 1950. That being so, the proceedings, by reason of Section 20(5) of the Industrial Disputes Act, terminated on January 17, and even if the award could not be regarded as having been made until the termination of the proceedings, nevertheless it must be regarded as having been made before the Constitution came into force. In any event, it does not appear to me to follow that the award cannot be regarded as having been made before the proceedings of the Tribunal terminated. The award is dated January 5, and was actually made binding on the parties by reason of Sub-section (3) of Section 15 of the Industrial Disputes Act on January 17. Clearly there was a publication of the award to the parties on that date and, therefore, there is no substance in the Petitioners contention, even if the award could not be held to have been finally made until the last day of the proceedings.
For these reasons, I am satisfied that if this petition is to be regarded as made under Article 226 of the Constitution of India then it must fail, as no writ under that Article could be issued in respect of awards which came into existence before the Constitution came into force.
Even if Article 226 does not apply, this Court might still have jurisdiction, however, if the case arose within the limits of the Ordinary Original Civil Jurisdiction of this Court. It is clear that within these limits this Court had jurisdiction to issue these high prerogative writs. See 48 CWN 18 (Privy Council) , and AIR 1947 90 (Privy Council) .
On behalf of the Petitioners, it is contended that a writ in the nature of certiorari or prohibition could issue in this case as the Tribunal which made the award was located within the limits of the Ordinary Original Civil Jurisdiction of this Court. On the other hand, it is contended by the Respondents that the Tribunal was a Bombay Tribunal and, therefore, no writ could issue by reason of the Ordinary Original Civil Jurisdiction of this Court.
In the orders creating the Tribunal, to which I have already made reference, there is no mention of the location of the Tribunal. It is brought into existence to decide disputes between banks and their employees throughout India and nowhere is it stated where the Tribunal should sit or where its headquarters should be situated. It is, however, common ground that this Tribunal had its offices in the city of Bombay and that appears to have been the result of an administrative order of the Ministry of Labour. According to the Respondents, as the office of the Court was at Bombay, the Court must be held to be a Court with its headquarters at Bombay and, therefore, a Bombay Court. That being so, this Court could not issue a writ in the nature of a prerogative writ, as the Court to which such writ was directed would be clearly outside jurisdiction.
The Tribunal, however, actually heard these cases in this particular building which, of course, was clearly within the jurisdiction of this Court and made its award when sitting in the buildings of the Legislature which is within jurisdiction. That being so, it is said by the Petitioners that this is an award made by the Court within the Ordinary Original Civil Jurisdiction of the High Court and, therefore, a writ in the nature of a prerogative writ could issue.
It appears to me that this Tribunal cannot be said to be a Bombay Tribunal, though, for the matter of convenience, its administrative office might have been situate in Bombay and its records kept there. It was a Tribunal brought into existence to try disputes throughout India and, I think, it must bo regarded as a Tribunal located at each place where it tried and decided an industrial dispute. It heard this case when within the limits of the Ordinary Original Civil Jurisdiction of this Court and it made its award when it was within such limits and, that being so, I think it must be said that the Tribunal was a Tribunal functioning within the limits of the Ordinary Original Civil Jurisdiction of the High Court and, therefore, a writ would be issued under the Ordinary Original Jurisdiction of the Court.
The location of the Court, however, is not the determining factor as was laid down by their Lordships of the Privy Council in the case of the Ryots of Garabandho v. Zemindar of Parlakimedi (supra). Viscount Simon who delivered the judgment of the Board observed at p. 165:
On this point it confirmed the decision in Nundo Lal Bose v. Calcutta Corporation ILR (1885) Cal. 275 where certiorari was issued to bring up and quash an assessment made by the Commissioners of the town of Calcutta on a certain dwelling house, it being held that the error in the assessment was an error which went to jurisdiction. The question is whether the principle of that case can be applied in the present case to the settlement of rent for land in Ganjam, merely on the basis of the location of the Board of Revenue, as a body which is ordinarily resident or located within the town of Madras, or on the basis that the order complained of was made within the town. If so, it would seem to follow that the jurisdiction of the High Court would be avoided by the removal of the Board of Revenue beyond the outskirts of the town, and that it would never attach but for the circumstance that an appeal is brought to, or proceedings in revision taken by, the Board of Revenue. Their Lordships think that the question of jurisdiction must be regarded as one of substance, and. that it would not have been within the competence of the Supreme Court to claim jurisdiction over such a matter as the present by issuing certiorari to the Board of Revenue on the strength of its location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of the settlement of rents for ryoti holdings in Ganjam between parties not otherwise subject to its jurisdiction, which it would not have had over the revenue officer who dealt with the matter at first instance.
From these observations of Viscount Simon it is clear that this Court would not have jurisdiction to issue a prerogative writ merely because the Tribunal to which it was issued was located within the limits of the Ordinary Original Civil Jurisdiction of the Court. In the case of the Ryots of Garabandho v. Zemindar of Parlakimedi (supra), the dispute was between a zemindar and ryots in the northern part of the Presidency of Madras. The dispute was cognizable, at first instance, by a revenue officer of that area. The parties, the properties in dispute and the Court of first instance were outside Ordinary Original Jurisdiction of the Madras High Court. The mere fact that the Board of Revenue which made an appellate order was located within the jurisdiction was held insufficient to give the High Court of Madras the right to issue a prerogative writ.
In the present case, however, the dispute arose at the two branches of the Bank which were situate within the jurisdiction. It is unknown whether all the employees or some or any of them resided within jurisdiction, but the Bank certainly carried on business within the jurisdiction. It seems to me that as the parties carried on business and worked within the jurisdiction and the dispute arose within the jurisdiction and the matter was decided by the Tribunal sitting within the jurisdiction, this Court would have jurisdiction to entertain an application for a Writ under its Ordinary Original Civil Jurisdiction. However, the matter is not of importance because of the view that I take, as will appear later, namely, that no writ can issue in this case.
The first point taken, on behalf of the Bank, was that the Tribunal has no jurisdiction to reopen the case after they had decided on October 13, 1949, that these employees had no case whatsoever. It seems clear that on October 13 the Tribunal appears to have been of opinion that, as the strike of the employees of the Bank was illegal, they should not interfere and grant the forty dismissed employees any relief whatsoever. However, the Tribunal was moved on the following day by counsel on behalf of the association of employees and it was agreed that the matter should be reconsidered on October 15. By that date the Tribunal appears to have changed their mind and Mr. Ginwala, counsel, who was appearing for the Bank, was called upon to address the Tribunal. It is said that he spoke for an hour or an hour and ten minutes and the hearing was concluded. No evidence of any kind was heard or admitted by the Tribunal. After this rehearing on October 15, the Tribunal must have arrived at a different conclusion as the award which they made orders reinstatement with certain consequent reliefs.
The contention of the Bank is that, once the Tribunal had made up their mind on October 13, the Tribunal had no jurisdiction, thereafter, to re-open the matter and to reconsider their earlier decision. Accordingly, it is said that the decision arrived at subsequently was wholly without jurisdiction and the award is, therefore, null and void and of no effect.
It is true that there is nothing in the Industrial Disputes Act giving an industrial tribunal a right to review its own decision and it may well be that a Tribunal could not review its decision contained in an award though it is unnecessary to decide that question. However, this is not a case of the Tribunal reviewing any decision which had been reduced to writing and embodied in an award. It is true that on October 13 the Tribunal expressed a view that the employees had no case. But, at most, it was a tentative view and I do not think it can possibly be said that the matter had been decided and concluded. A Court can always change its mind at any time before the judgment is delivered and signed and it has been held in England that where a Judge, at the conclusion of a case under the Workmen''s Compensation Act, informed the parties that he proposed to find for the workmen but would give his reasons in writing later, it was open to him to change his mind and to make an award or order in favour of the employers. Obviously, a Judge or a Tribunal is entitled to change his mind on due consideration of the facts and the contentions urged before it, and where a Court or a Tribunal reserves its judgment, it is not bound to act in accordance with an expression of opinion during the hearing.
In the present case, all that the Tribunal had done on October 13 was to express the view that the employees had no case. But they had not finally determined the matter and had not made their award. That being so, it was open to the Tribunal, on a reconsideration of the facts, to change their mind and, in my view, the Tribunal were perfectly entitled to give notice that the matter would be reheard and to consider the matter afresh on October 15. In my judgment, the award cannot be held to be without jurisdiction on this ground.
It was next contended, on behalf of the Bank, that the award was without jurisdiction because it was not signed by all the three members who constituted the Tribunal.
Section 16 of the Industrial Disputes Act provides:
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 b
Then follows a proviso in these terms:
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.
It is clear from this section that if, at the time the award is made, a Tribunal consists of three members, then all three must sign the award. Unanimity, however, is not required as a member of a Tribunal may record a minute or minutes of dissent.
On behalf of the Bank, it is urged that the Tribunal consisted of three members when this award was made and as the award was not signed by Mr. Chandra Sekhar Aiyar the Award is bad and made without jurisdiction.
On behalf of the opposite parties, it was contended that Mr. Chandra Sekhar Aiyar was not available at the date this award was signed and that the proceedings could be continued by Mr. Sen and Mr. Majumdar who were two of the original members of the Tribunal.
Mr. Chandra Sekhar Aiyar, it is said, had in the meantime been appointed a member of a Tribunal to adjudicate upon certain boundary disputes between India and Pakistan and this Tribunal had been sitting during the months of December 1949 and January 1950 and, therefore, Mr. Chandra Sekhar Aiyar was not available as a member of the Tribunal.
Members of Industrial Tribunals are appointed under powers given by Section 7 of the Industrial Disputes Act which is in these terms:
(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 with the High Court of the Province in which the Tribunal has or is intended to have, its usual place of sitting.
It will be seen from this section that the Tribunal is to consist of thoroughly independent persons who are in every way qualified to hear cases of this kind. Further, where the Tribunal consists of two or more members, the Government appointing the same must nominate one of them as a chairman. In the present case, three members of the Tribunal were appointed, though one of them, Mr. Verma, never acted. In his place, however, Mr. Chandra Sekhar Aiyar was appointed and when the Tribunal sat at Calcutta it consisted of Mr. K.C. Sen who had been appointed chairman and Mr. J.N. Majumdar and Mr. Chandra Sekhar Aiyar as members.
The filling of vacancies in a Board, Court or Tribunal appointed under the Act is dealt with in Section 8 of the Industrial Disputes Act and it will be convenient to set out the terms of this section in extenso:
(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.
From the terms of this section it is clear that, if the chairman of a Tribunal ceases to be available, the Government must appoint a person to fill the vacancy, and having done so, the proceedings are to be continued before the Tribunal so reconstituted. On the other hand, if a member of a Tribunal ceases to be a member, the Government is not bound to fill the vacancy. It may do so by appointing another person as member of the Tribunal and if it does so the proceedings are to be continued before the Tribunal as reconstituted. It is to be observed that the section does not expressly state what is to happen if a member of a Tribunal ceases to be available and no one is appointed to fill the vacancy.
It is to be observed, however, that when the services of any member of a Board other than the chairman cease to be available the Government must appoint another person to fill the vacancy. There is, therefore, a sharp distinction drawn between filling a vacancy caused by a member of a Tribunal ceasing to be available and that caused by a member of a Board ceasing to be able to act.
The reason for drawing a sharp distinction between a vacancy caused by a member of a Board being unavailable and that caused by a member of a Tribunal being unable to act is, I think, clear from Section 5 of the Industrial Disputes Act. A Board must consist of a chairman, who is to be an independent person, and two or four other members and these members are persons appointed in equal numbers to represent the parties to the dispute. If, therefore, a member of a Board ceases to be available, the parties to the dispute will be unequally represented on the Board and, therefore, the vacancy must be filled.
On the other hand, all members of a Tribunal must be independent persons and qualified as provided in Section 7 of the Act. That being so, where a vacancy amongst the members occurs, there is no inequality of representation as the remaining member or members are independent. There is, therefore, a good reason why a vacancy amongst members of a Board must be filled whereas no such compelling reason exists where a vacancy occurs amongst the members of a Tribunal.
On behalf of the Bank, however, it was urged that though Section 8 of the Industrial Disputes Act does not compel the appropriate Government to fill a vacancy caused by a member of a Tribunal ceasing to be available, nevertheless there is no provision that, on a member ceasing to be available and no appointment of a member being made in his stead, the Tribunal can continue to function and dispose of the matters before it. According to the Bank''s contention, if a vacancy amongst the members of a Tribunal is not filled, the Tribunal cannot proceed with the hearing of a dispute unless it is reconstituted by an appropriate order of Government, In other words, if one member of a Tribunal, consisting of a chairman and two members, ceases to be available, the chairman and the remaining member cannot continue to hear the case unless there is an order of Government empowering them to do so. In other words, there must be an order of Government reconstituting the Tribunal, which previously consisted of a chairman and two members, as a Tribunal consisting of the chairman and one member.
As no appointment was made to fill the vacancy caused by Mr. Chandra Sekhar Aiyar ceasing to be available, it is contended that the Tribunal could proceed no further in the matter. The Central Government, by an appropriate order, could authorise them to continue but as they did not do so, Mr, Sen and Mr. Majumdar had no jurisdiction whatsoever to make the award which they did.
Reliance was placed by counsel for the Petitioners on the judgment of Mahajan J. in the case of The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi (supra) decided by the Supreme Court of India. In that case, the Bank Disputes Industrial Tribunal has made an award in favour of the employees of the Bharat Bank and the Bank had applied for special leave to appeal to the Supreme Court under Article 136 of the Constitution of India. The appeal was heard and by a majority was dismissed. Mukherjee and Patanjali Sastri JJ. held that the Court had no jurisdiction to grant special leave to appeal under Article 136 of the Constitution and, therefore, no appeal would He. Fazl Ali and Mahajan JJ. held that the Court had jurisdiction to hear the appeal. Fazl Ali J. was of opinion that the appeal failed on the merits whereas Mahajan J. was of opinion that the appeal partially succeeded on the merits. The learned Chief Justice who presided was of opinion that Article 136 was wide enough to give jurisdiction to the Court to entertain an application for leave to appeal, though the Court would be very reluctant to entertain such an application. On the merits, the learned Chief Justice was of opinion that the case was not such as would entitle them to admit the appeal and observed that the aggrieved parties might apply for redress by adopting other appropriate proceedings. Accordingly, the learned Chief Justice was of opinion that the appeal failed and should be dismissed. But it is to be observed that he did not consider in detail the contentions as to the merits of the appeal.
The award of the Tribunal in the Bharat Bank case (supra) was signed by only two of the three members and it was urged that the award was, therefore, void and made without jurisdiction. Fazl Ali J. was of opinion that two members out of the three appointed to constitute the Board, could sign the award and the award was, therefore, valid. Mahajan J., on the other hand was of opinion that, as the award was not signed by the three members appointed to constitute the Tribunal, the award was void.
After referring to the provisions of Section 8 of the Industrial Disputes Act, Mahajan J. observed:
The Tribunal was never reconstituted by the Government by any notification. u/s 7 a Tribunal has to be constituted in accordance with the provisions of the Act by the Government. The Government having constituted a Tribunal of three persons, it had power u/s 8 to reconstitute it but it did not exercise that power. The result, therefore, is that the Tribunal as originally constituted was not the Tribunal which gave the award in this reference. Only two members have given the award. It was said that one of the members ceased to be available and the Government was not bound to fill up that vacancy. There is no material on the record to prove whether any member became unavailable and if so, when. But even if a member becomes unavailable and the Government does not choose to fill up that vacancy, still the Government has to reconstitute the Tribunal by saying that two members will now constitute the Tribunal.....The idea of three persons hearing a case and two of them deciding it is repugnant to all notions of fairness. It may well have been that the opinion of the third may have influenced the other two or the decision arrived at may have been quite different. It so happened in this case that two members of the Tribunal differed on an important question of law but somehow adjusted their differences and gave a unanimous award. The presence of the third in such a situation may have very vitally affected the result. After a good deal of thought I feel that it would be most dangerous for this Court to condone proceedings of this character. If exceptional powers are not exercised even when a body legally constituted under the statute does not function according to the statute, then they defeat the very purpose of the Constitution.
On the other hand. Fazl Ali J. was of opinion that the award was valid though only signed by two members. He observed:
The last ground urged is that the award has been signed by only two members of the Tribunal though it originally consisted of three persons and though the entire hearing of the dispute had taken place before all the three persons. This objection does not appear to me to be fatal to the jurisdiction of the Tribunal, because u/s 8 of the Act it is not obligatory on the Government to appoint a new member to fill a vacancy if one of the members ceases to be available at any time during the proceedings. Under that section, if the chairman ceases to be available, the Government must appoint his successor, whereas if a member ceases to be available the Government may or may not appoint any one to fill his place.
The other three learned Judges of the Supreme Court, as 1 have already indicated, expressed no opinion upon this point and, therefore, there is no decision of the Court upon the question whether an award signed by the two out of the three members can be a valid award. Having given the matter the best attention I can, I am inclined to the view expressed by Fazl Ali J. It is true, as pointed out by Mahajan J., that Section 8 does not expressly state that, if a vacancy amongst the members of the Tribunal is not filled, the Tribunal can continue to function. On the other hand, I think that that must be implied from the terms of the section. Where a new chairman is appointed or a vacancy amongst the members is filled by Government then there is a reconstitution of the Tribunal and the proceedings can continue before the Tribunal as reconstituted. On the other hand, where a vacancy is not filled, is a reconstitution necessary? In the view of Mahajan J. it is. But I think that the intention of the Legislature is clear from the words of the section that no reconstitution is required. If the intention of the Legislature was that a Tribunal would cease to function if a vacancy was not filled, it would, I think, have stated so clearly. The fact that it is not obligatory to fill a vacancy amongst members of a Tribunal strongly suggests that the Tribunal may continue to function though a member has ceased to be available. In fact, a continuation before the original chairman and one member would probably be far more satisfactory than the continuation of the proceedings before the original chairman and member and a new member who had heard nothing whatsoever of the proceedings up to the date of his appointment. It appears to me that the necessity for reconstituting the Tribunal, as required by Section 8, only arises when a new Chairman or a new member is appointed. On the other hand, where no one is appointed to fill a vacancy amongst the members, the intention of the Legislature is tolerably clear that no reconstitution is necessary and, therefore, the case can continue before the remaining members.
As I have pointed out earlier, a distinction is drawn between filling vacancies of a Tribunal and a Board. If the proceedings before a Board continue without filling a vacancy amongst the members, the representation on the Board would become unequal. For that reason, the vacancy amongst the members must be filled. But there is no such necessity in a Tribunal as all the members constituting the latter are independent persons well qualified to adjudicate on contentious matters. That being so, the view of Fazl Ali J. on this matter is, in my judgment, the right view and, accordingly, I hold that the award is not without jurisdiction and void and inoperative by reason of the fact that it was not signed by Mr. Chandra Sekhar Aiyar.
I may add, as pointed out by Mahajan J., in the case before the Supreme Court, there is nothing on the record of the Tribunal to show why Mr. Chandra Sekhar Aiyar was not available. But in the affidavits filed before us it is stated that Mr. Chandra Sekhar Aiyar had been appointed a member of another Tribunal and, therefore, was not available. That statement is not contradicted and must be accepted. The conditions, therefore, envisaged in Section 8 of the Industrial Disputes Act arose, but in my view, for the reasons stated above, the award, though signed by only two members, cannot be considered invalid on that ground.
It was next contended, on behalf of the Petitioners, that the award should be quashed because the Tribunal had proceeded to dispose of the matters before them without hearing any evidence. It was contended that the Petitioners desired to call evidence but that the Tribunal refused to hear them. That, it was contended, was a ground upon which a writ of certiorari could issue.
There can be no doubt that one of the matters, concerning which a dispute has arisen, was that of victimization and retrenchment. It is clear from the order of June 13, 1949, referring the disputes between the various banks and their employees to the Tribunal, that one of the disputes referred related to retrenchment and victimization (see Article 18, schedule II of the order). That article reads:
Retrenchment and victimization (specific cases to be cited by employees).
The item suggests that the Tribunal were required to deal with each specific case cited by the employees. The employees complained that forty of their number had been victimised or retrenched. But the Bank''s case was that these persons had not been re-employed, after their dismissal following the strike, because their records were bad and they were not regarded as fit for re-employment. The Petitioners desired to call Mr. Parker, who had considered the cases of all the employees, to give evidence as to why each of these forty men was not employed. It is now common ground that Mr. Parker was tendered as a witness but that the Tribunal refused to hear him.
Mr. Parker was called before us and he stated that he was in attendance when the Tribunal considered this matter on the second occasion and desired to give evidence. Counsel for the Petitioners informed the Tribunal of this fact, but the Tribunal declined to hear him. Mr. Parker, in his evidence before us, made it clear that he intended to give evidence justifying the Bank''s refusal to re-employ any of these forty men. According to him, he had considered the records of each of these men and had come to the conclusion that their service record was such that they could not be re-employed.
Mr. Parker was not seriously cross-examined and, I think, it is established beyond ail doubt that the Petitioners desired to give evidence but that the evidence was not received by the Tribunal. That the evidence which the Petitioners proposed to tender was relevant is, I think, clear. The Tribunal had to consider the specific cases of employees victimised or retrenched. Evidence as to why certain employees were not re-employed was, therefore, very relevant, and I think there can be no doubt that, before arriving at a conclusion that these forty men had been victimised or wrongly retrenched, the Tribunal should, at least, have heard the version of the Bank. They heard no evidence at all. Nevertheless they ordered the reinstatement of all forty men.
For the Petitioners it is contended that there was, in this case, such complete failure to observe the ordinary rules of natural justice as would give this Court a right to interfere by the issue of a writ in the nature of certiorari.
On behalf of the Respondents, however, it was contended that the Tribunal were the sole Judges of whether this evidence was relevant or not. At most, all that could be said, it is contended, is that the Tribunal were wrong in coming to the conclusion that the evidence was irrelevant to the issues which they had to try.
I think there is no doubt that the Tribunal had jurisdiction to decide this question of retrenchment, or victimization of these forty men, and to decide whether or not they should be reinstated. To decide a matter without proper or any evidence is not a matter of jurisdiction. The Tribunal had jurisdiction though they may have proceeded to decide the matter incorrectly and not in accordance with law. This seems clear from the decision of their Lordships of the Privy Council in Rex. v. Nat Bell Liquors, Ltd. [1922] 2 A.C. 128, in which it was held that conviction by a magistrate for a non-indictable offence cannot be quashed on certiorari on the ground that the depositions show that there was no evidence to support the conviction or that the magistrate had misdirected himself in considering the evidence, and that absence of evidence does not affect the jurisdiction of the magistrate to try the charge.
On the other hand, it has been contended that the matter is different if a Court or tribunal refuses to hear the evidence of one of the parties. In such a case, it is not a question of deciding a case incorrectly but of proceeding improperly in the conduct of the enquiry. That being so, it is said that this Court should interfere and quash the award. Where a Court has jurisdiction over a matter, it has jurisdiction to decide the case rightly or wrongly. It is said that no Court has the right to shut out and refuse to hear clearly relevant evidence and then proceed to decide the case upon no evidence at all. A Court must, it is argued, receive relevant evidence tendered to it and that it has no right whatsoever to refuse to hear relevant evidence so tendered to it. There is, in such a case, such an irregularity, it is contended, that a superior Court has a right to interfere by way of certiorari.
This question is not free from difficulty but, in my view, the Tribunal was bound to hear this evidence before arriving at any decision. Having heard it, the Tribunal could either accept or reject it. Whether the evidence, when heard, should be accepted was, of course, a matter entirely for the Tribunal. The evidence of Mr. Parker, which he stated he proposed to give before the Tribunal, was relevant and material. It was evidence which should have been considered before the Tribunal came to any conclusion as to whether any particular individuals were wrongly retrenched or victimised. The Tribunal refused to hear the evidence at all and I think there can be no doubt that the decision of the Tribunal cannot possibly be justified. A somewhat similar case arose in England comparatively recently. General Medical Council v. Spackman [1943] A.C. 627. In that case, a registered medical practitioner, who was co-Respondent in a divorce suit in the Divorce Court, was found to have committed adultery with the Respondent therein to whom he stood in professional relationship and a decree nisi was pronounced which was afterwards made absolute. In proceedings before the Medical Council for removal of his name from the medical register he desired to call evidence on the issue of adultery which had not been called in the Divorce Court. The Council refused to hear this evidence and accepted the decree nisi as prima facie proof of adultery and directed his name to be struck off the rolls. The House of Lords held that the Council was bound to hear this evidence and not having done so a certiorari would issue. At p. 640 Lord Wright in his speech observed:
The Council is not a Court of Law. No particular procedure is prescribed. It can determine its own procedure... The only control of the Court to which the Council is subject (apart from proceedings by way of mandamus) is the power which the Court may exercise by way of certiorari. Certiorari is not an appellate power. Its use may nullify or discharge an order made by the Council, but the grounds on which certiorari are granted are strictly limited. They may, I think for purposes of this case, broadly be taken to be (1.) the ground that the Council''s proceeding was ultra vires, (2.) the ground which without any very great precision has been described as a departure from "natural justice... The question of a failure of "natural justice" is what is to be considered in this appeal, but, before cons idering the meaning of these words, I must first observe that they can in this case be properly taken as a description of what the Council has to do, namely, to make "due enquiry", which under the statute is the governing criterion, that is an independent enquiry by the Council as a body responsible for its decision.
The refusal to hear this evidence would, therefore, justify the issue of a writ in the nature of certiorari.
Quite clearly, the refusal to hear this evidence would not give this Court a right to interfere by way of prohibition. A writ in the nature of prohibition can only be issued where the Court or Tribunal has no jurisdiction or has acted in excess of jurisdiction. Here, it certainly had jurisdiction and the most that can be said is that it was guilty of serious irregularities in the exercise of such jurisdiction. That, however, is not a case in which a writ of prohibition can be issued.
On behalf of the Respondents, it was contended, however, that whatever be the merits of the case for the Petitioners, no prerogative writ can now be issued by reason of the fact that the Tribunal which made the award has become functus officio and has ceased to exist. The Tribunal was brought into existence by an order of June 13, 1949, made by the Ministry of Labour, Government of India. That order recites:
In exercise of the powers conferred by Section 7 of the Industrial Disputes Act, 1947 (XIV of 1947), the Central Government is pleased to constitute an Industrial Tribunal consisting of the following members, for the adjudication of industrial disputes in banking companies.
Then follow the names of three members Mr. K.C. Sen, Mr. S.P. Verma and Mr. J.N. Majumdar. As I have stated earlier, Mr. Verma could not for some reason or another act on the Tribunal and Mr. Chandra Sekhar Aiyar was appointed in his stead. By another order of the same date it is recited that an industrial dispute had arisen between the banking companies mentioned in the First Schedule of that order and their employees in respect, so far as the Central Government was aware, of the matters specified in schedule II of the order. It is then said that the Central Government considered it desirable to refer the dispute for adjudication and, therefore, in exercise of the powers conferred by Clause (c) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947, the Central Government was pleased to refer the said dispute for adjudication to the Industrial Tribunal constituted u/s 7 of the said Act by a notification of the Government bearing the same date, that is, to the Tribunal brought into existence by the earlier order of June 13, 1949, to which I have made reference.
On behalf of the Respondents, it is contended that this Tribunal was an ad hoc Tribunal brought into existence solely for the purpose of adjudicating upon the industrial disputes which had arisen between the various banks mentioned in the order and their employees. The Tribunal proceeded to consider these disputes and it is now conceded that the final awards have been made and that all the disputes have been adjudicated upon. The Petitioners have tendered an affidavit in which these facts relating to the final awards are set out and there is no contradiction by the Petitioners. It is, I think, therefore, clear that the disputes submitted to the Tribunal have been disposed of and that there are no longer any matters requiring adjudication. Further, by reason of Section 20(3) of the Industrial Disputes Act, the proceedings before this Tribunal had, after publication of the award, concluded.
The contention of the Respondents is that this Tribunal was created solely to decide these disputes and, having done so, it is functus officio and has ceased to exist.
On behalf of the Petitioners, however, it is contended that the first order of June 13, 1949, constituted an Industrial Tribunal to decide disputes generally and that the second order of the same date merely referred to the Tribunal a dispute or disputes. The Petitioners deny that the Tribunal was an ad hoc Tribunal. Their contention is that it was a Tribunal set up to decide industrial or banking disputes generally and that Mr. Sen, Mr. Verma and Mr. Majumdar were appointed its first members. It is contended that the Tribunal is still in existence and that it had not performed all the functions for which it was created, when it disposed of the disputes referred to it by the second order of June 13, 1949.
In my view, the Tribunal created by the first order of June 13, 1949, was an ad hoc Tribunal for adjudicating upon certain disputes which had arisen between the banking companies and their employees. This ad hoc Tribunal was to consist of three named gentlemen. The order did not, in my view, first create a Tribunal and then appoint these three gentlemen as its first members. The order suggests that the Tribunal was to consist of these three gentlemen and that it would have no existence apart from them. It is true that Mr. Verma never sat, but, under the provisions of the Industrial Disputes Act, another member could be appointed in his stead and Mr. Chandra Sekhar Aiyar was so appointed.
Following the order creating the Tribunal came the order referring the bank disputes to the Tribunal and reading both orders together, I think, it is tolerably clear that the intention of Government was to create this Tribunal specially for adjudication of these particular disputes. There was no intention to create a Tribunal for decision of industrial or banking disputes generally. It was a Tribunal created for the decision of particular and named disputes.
If the Tribunal was an ad hoc Tribunal, then it is clear that it would cease to exist once it had performed its functions. The functions of an Industrial Tribunal are completed when an award is made and, as I have stated earlier, final awards have been made in all the cases, and that being so, it appears to me that the Tribunal is now functus officio and has ceased to exist.
It was pointed out that at least two of the members are now in other appointments. Mr. Chandra Sekhar Aiyar, as he then was, is now Mr. Justice Chandra Sekhar Aiyar of the Supreme Court and Mr. J.N. Majumdar is now the President of the Appellate Tribunal dealing with industrial disputes. Further we are informed that Mr. K.C. Sen is now the President of a Bombay Industrial Tribunal. It is pointed out that no further appointments have been made to these so-called Banking Industrial Disputes Tribunal which strongly suggests that the intention was that this should be an ad hoc Tribunal and that it has now ceased to exist. Of course, the fact that the members of the Tribunal are now otherwise employed is by no means conclusive, but it is clear that the Tribunal does not appear now to have any existence in fact.
In my judgment, upon the true construction of the orders of June 13, 1949, the Tribunal created by those orders was created for a specific purpose and now that that purpose has been fulfilled the Tribunal no longer exists.
Can a prerogative writ be issued where a Tribunal has ceased to function and to exist? There is, I think, clear authority that in such circumstances no writ can issue. The matter was considered in the case of Clifford and 0''Sullivan [1921] 2 A.C. 570, 584, 591. There the question arose whether a writ of prohibition would lie against a military Court and the House of Lords held that prohibition did not lie, first, because the officers constituting the military Court did not claim to act as a Judicial Tribunal in any legal sense, and secondly, because they were function officio. At p. 584 Viscount Cave observed:
A further difficulty is caused to the Appellants by the fact that the officers constituting the so-called military Court have long since completed their investigation and reported to the commanding officer, so that nothing remains to be done by them, and a writ of prohibition directed to them would be of no avail.
At p. 591 Lord Sumner dealt with the same matter in these words:
My lords, I think there is another difficulty in the Appellants'' way, which ought to be mentioned. So far as the evidence shows the officers who constituted the military Court are now completely "function officio" and, as a tribunal, are definitely dispersed, so far as this case is concerned. There is no material to support the surmise that they might be called upon to reconsider either their decision or their sentence. True judgment, though given, is not yet executed, but the execution is not in the hands of these officers or of any one acting under their directions or authority... Prohibition is in any Case too late, so far as these Appellants are concerned.
Clifford and O''Sullivan (supra) was a case relating to prohibition, but it must be remembered that a writ of prohibition can issue after the termination of proceedings if execution of an order made is still required. Similarly, certiorari will issue to quash an order already made but where the tribunal has ceased to exist and, therefore, can do nothing more neither prohibition nor certiorari can lie, as there is no Court or tribunal to which it can be directed and no judicial or quasi-judicial officer who could be directed to take a certain course or forward records to this Court. Further, compliance with the terms of the writs could not be enforced when the Tribunal has ceased to exist.
In the present case, the disputes have been adjudicated upon and all the final awards have been made. The members of the Tribunal appear to have dispersed and there is nothing more which remains to be done. In short, the Tribunal has ceased to exist in fact. That being so, it appears to me that the case of Clifford and O''Sullivan (supra) is applicable and, therefore, I am bound to hold that it is now too late for the issue of prerogative writs, whether in the nature of prohibition or certiorari. Upon this ground, therefore, the petition must fail.
It has not been seriously pressed that a writ in the nature of mandamus could issue or that an order could be made u/s 45 of the Specific Relief Act in this case.
It was faintly suggested, at the outset, that a mandamus could issue against the Government of India, which is a Respondent in this matter, restraining that Government from giving effect to the award. Article 226 of the Constitution expressly allows writ in the nature of prerogative writs to issue against Government which is a departure from English practice. That Government must, however, be located in the territory over which the Court exercises jurisdiction and, in my view, the Government of India cannot be said to be located in the State of West Bengal and, therefore, writs under Article 226 cannot issue against it at the instance of this Court. It is unnecessary to decide where the Government of India is located and it is sufficient, for this case, to hold that it is not located in the State of West Bengal, though it may exercise power and authority over the territories and inhabitants of that State.
It was also suggested that a writ in the nature of mandamus or an order u/s 45, Specific Relief Act, could be made against the Respondent S.B. Sarkar, described as the conciliation officer (Central) (Bank and Insurance). He has his office or headquarters at 12, Chowringhee Square, Calcutta, within the limits of the Ordinary Original Civil Jurisdiction of this Court. It was not suggested, however, that it was any part of this officer''s duty to enforce the award or to see that its terms were carried out. It could not, therefore, be said that it was incumbent on this officer to do anything to enforce the award or to see that it was implemented and, therefore, a mandamus or a similar order could not issue against him. This officer is apparently concerned only with conciliation or effecting settlements of disputes and is not concerned with enforcement of awards.
A mandamus could not issue, neither could an order u/s 45, Specific Belief Act, be made against the Bank or the Employees'' Union or the dismissed employees, and that being so, the claim to a writ in the nature of a mandamus or an order u/s 45, Specific Relief Act, must fail.
For these reasons, I am of opinion that this petition fails in its entirety and I would, therefore, dismiss it with costs. Certified for two counsel.
Banerjee, J.—I agree.
Attorneys for applicant: Orr, Dignam and Co.
Attorneys for Respondents: S.M. Dutt, S.K. Mandal.